State of New South Wales v Public Transport Ticketing Corporation

ALLSOP P: Before the Court are an application and cross-application for leave to appeal from procedural rulings by the primary judge (Einstein J) concerning claims for public interest immunity by the State of New South Wales in respect of documents discovered by the Public Transport Ticketing Corporation ("the PTTC") in litigation in the Commercial List against Integrated Transit Solutions Limited and ERG Limited (to which entities I will refer individually and collectively by the singular "ERG").

The application (brought by the State) and cross-application (brought by ERG) for leave to appeal were heard concurrently with the appeals, should leave be granted. The argument that was heard on 14 December 2010 was limited (in significant part, by reasons of pressure of time) to what were referred to as two "tiers" of five categories of documents, which I will explain in due course. It was thought that orders and reasons in relation to what were said to be documents attracting the immunity at the two highest levels or tiers and the reasons therefor would assist in the overall resolution of the many such claims in the case.

A separate question was also heard concerning one document that was otherwise contained within one of the relevant categories, but which had been accidentally provided to ERG consequent upon a subpoena being answered by a third party.

The orders that I would make are that leave be granted to appeal and cross-appeal, the orders of the primary judge be set aside and the matter be stood over to a date to be fixed for the making of orders on the appeal and separate question that are consistent with these reasons. Broadly speaking I would order disclosure (subject to any claims for legal professional privilege) of a significant number of documents and parts of documents that relate wholly or substantially to this contract and the dispute arising from its performance.

The PTTC described the nature of the dispute between it and ERG (which commenced in 2008) in its Commercial List Statement as a claim for damages (beyond the liquidated damages under the relevant contract that had already been recovered through the calling up of security) for the losses said to have been suffered consequent upon the PTTC's termination of a contract for the designing, building and installation of an integrated ticketing and fare payment system for public transport in the greater Sydney area. Such termination was said to have been justified by the alleged serious breaches of contract, and delay in performance, by ERG.

In its Commercial List Response, ERG said that the PTTC was not entitled to terminate the contract because (amongst other reasons) it did not act reasonably or in good faith in refusing to accept the remedial programme put forward by ERG to deal with what were asserted by the PTTC to be events of default. ERG claims that the PTTC's purported termination was in fact a repudiation of the contract and that it (ERG) accepted the PTTC's repudiation as terminating the contract. The precise details and context of these assertions were not made clear in argument. They are largely unnecessary to understand for present purposes, save that it is necessary to appreciate that it will be central to the resolution of this case to understand the reasons for the PTTC's termination. Another group of allegations embedded within ERG's defence refer to the failure of the PTTC to procure sufficient engagement and support of transport operations including Railcorp, the State Transit Authority and the Bus and Coach Association.

The primary judge set out other relevant issues in [11] of his reasons.

The State is not a party to the litigation. However, by further amended notice of motion dated 13 April 2010, the State sought orders that the PTTC be excused from making available for inspection by ERG or their lawyers documents divided into 14 categories that had been discovered as relevant by the PTTC on the ground that the documents were subject to a legitimate claim for public interest immunity.

It is appropriate to note at this point that under the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") thereunder the conception of relevance for the purposes of disclosure in civil litigation is no longer the 19 th century "train (or chain) of enquiry" or " Peruvian Guano " test: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QB 55 at 63; and Mulley v Manifold [1959] HCA 23; 103 CLR 341. Rather, relevance is to be judged by reference to the criteria in UCPR Pt 21 r 21.1(2) as relevance to a fact in issue in that the document or its contents could rationally affect the assessment of the probability of the existence of a fact in issue (other than by relating solely to the credibility of a witness). I will assume that all documents with which I will deal meet that test.

The 14 categories (A - N) were as follows: A. Draft speaking notes prepared for Ministers to use in Cabinet; B. Draft advices prepared by Treasury for the Treasurer and for the Cabinet Standing Committee on the Budget ("Budget Cabinet Committee") in relation to matters being put before the Budget Cabinet Committee for decision; C. There is no category C; D. Decisions of the Budget Cabinet Committee; E. Draft Minutes of the Budget Cabinet Committee and related correspondence; F. There is no category F; G. Documents that disclose the deliberations of the Budget Cabinet Committee; H. Briefing notes prepared at the request of the Department of Premier and Cabinet for incoming Premiers and incoming Governments; I. Draft answers to Parliamentary questions on notice; J. Draft house folder notes; K. Correspondence between the Minister and a Director-General on a policy issue; L. Correspondence and external consultants' reports prepared to assist in the preparation of advice for Cabinet on an important policy issue; M. Documents prepared for a steering group established by Cabinet; N. Other forms of Cabinet advice.

The argument before this Court concerned categories D, G, A, E and N. Categories D and G were said to be the "first tier" of documents most strongly and evidently attracting the immunity and categories A, E and N were said to be the "second tier" of documents next most strongly and evidently attracting the immunity.

On the motion before the primary judge, the State relied on affidavits of three people: Mr Paul Miller (Acting Deputy Director-General (General Counsel) of the New South Wales Department of Premier and Cabinet), Mr Andrew Nicholls (Acting Deputy Director-General of the New South Wales Department of Transport and Infrastructure) and Ms Joanna Quilty (Deputy Director-General of the New South Wales Department of Transport and Infrastructure). The relevant documents were tendered as confidential exhibits.

After setting out ERG's submissions, the primary judge, approaching the matter by reference to the Evidence Act 1995 (NSW), s 130 and to some of the leading cases at common law, turned to the evidence led by the State in support of its claim. His Honour concluded (at [43] of his reasons) that the evidence of Mr Miller and Mr Nicholls: "[43] ... amounted to little more than a confirmation that they regarded those documents as falling within the particular categories and appropriate for a claim for Crown immunity. It is however quite clear that there was no evidence of a consistent application of principle for the selection of documents which attracted immunity."

His Honour said at [44]-[46] of his reasons: "[44] When taken in cross-examination to examples of particular documents in respect of which there was originally a claim to Crown immunity which was substantially reduced, the evidence in chief was simply silent as to the change of position and as to any criteria or consideration applied in the abandonment of the claim earlier made. One only example in respect of the cross-examination of Mr Miller concerned category F was that he was no more than the notional decision maker but he only conveyed the instruction after it had been approved by Cabinet and he would not have done so had Cabinet not approve [ sic ] the release of the particular documents. [45] In truth the materials put forward by the State's witnesses fell far short of discharging the requirement that there be some form of transparency in relation to how there had been determined from amongst the many documents discovered those to be reviewed for public interest immunity. [46] It was important for the Court to have before it from the State, evidence upon which the court could rely in order to be in a position to understand what were the criteria by reference to which it came to be contended that particular documents were described as Cabinet minutes. To my mind it became clear from the above-described cross-examination that the proponents had insufficient knowledge of that process [and insufficient knowledge of the issues in the proceedings] to satisfy the court as to what the above-described criteria were."

Having criticised the evidence in this way, the primary judge concluded that the balancing exercise contemplated by s 130 favoured inspection. Then, however, his Honour resorted to the expedient of allowing the claim to immunity only if the document had stamped on it "Cabinet in Confidence" and not allowing it if it did not. This was, with respect, an inadequate and arbitrary approach to a substantive question of law and fact about which both ERG and the State complain. Rather than remit the matter to be dealt with according to law, both sides urged us to decide the question, the appeal being by way of rehearing under the Supreme Court Act 1970 (NSW), s 75A. As to the nature of appellate review in respect of a decision as to the immunity see Victoria v Brazel [2008] VSCA 37; 19 VR 553 at [38]-[43] and Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; 169 FCR 227 at 230-232 [11]-[21], but cf New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; 70 NSWLR 643 at 646 [26]. Given the error of the primary judge it is unnecessary to embark upon any analysis of what may be conflicting approaches in these cases.

Before addressing the issues argued as to public interest immunity, it is appropriate to commence with an understanding and appreciation of the PTTC under and pursuant to the Transport Administration Act 1988 (NSW) ("the TA Act"). The TA Act has purposes going well beyond the PTTC. Various Parts of the TA Act dealt with Rail Corporation New South Wales (Pt 2), the Transport Infrastructure Development Corporation (Pt 2A), the Rail Infrastructure Corporation (Pt 2B), the State Transit Authority (Pt 3), Sydney Ferries (Pt 3A), the Independent Transport Safety and Reliability Regulator (Pt 4A), the Transport Advisory Group (Pt 5), the Roads and Traffic Authority (Pt 6) and Sydney Metro (Pt 6A). Part 3B dealt with the PTTC.

Until 1 July 2010, with the introduction of the Transport Administration Amendment Act 2010 (NSW) ("the 2010 Act"), the TA Act relevantly provided as follows. By s 35R, the PTTC was constituted a corporation, and was a statutory body "representing the Crown" and had "the status, privileges and immunities of the Crown".

Section 35S set out the objectives of the PTTC, dividing them between "principal" and "other": "(1) The principal objectives of the Public Transport Ticketing Corporation are: (a) to provide ticketing and fare payment services to public transport operators in the State, and (b) to promote and facilitate the integration of ticketing products and fare payment systems for public transport in the State, in an efficient, effective and financially responsible manner. (2) The other objectives of the Public Transport Ticketing Corporation are as follows: (a) to be a successful business and, to that end: (i) to operate at least as efficiently as any comparable business, and (ii) to maximise the net worth of the State's investment in the Corporation, (b) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991 , (d) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates. (3) The other objectives of the Public Transport Ticketing Corporation are of equal importance, but are not as important as the principal objectives of the Corporation."

Section 35T set out the functions of the PTTC as follows: "(1) The principal functions of the Public Transport Ticketing Corporation are: (a) to establish and manage a ticketing and fare payment system for public transport passengers and participating public transport operators in the State, and (b) to control and manage any funds within the ticketing and fare payment system that represent unused prepaid fares. (2) Without limiting any other functions conferred or imposed on it, the Public Transport Ticketing Corporation may conduct any business related to the operation of its ticketing and fare payment system and for that purpose use any property or the services of any staff of the Corporation. (3) The Public Transport Ticketing Corporation has such other functions as are conferred or imposed on it by or under this or any other Act or law. (4) The Public Transport Ticketing Corporation may exercise its functions within or outside New South Wales."

The management of the PTTC was provided for by s 35U. A board was constituted and comprised of the Chief Executive Officer and between three and seven nominees of the Minister (s 35U(1) and (2)). Part 1 of Sch 10 of the TA Act provided for the constitution and procedure of the board. The board had the functions of determining the policies of the PTTC (s 35V). The affairs of the PTTC were to be managed and controlled by the CEO in accordance with the policies of the board (s 35X). Ministerial control of the PTTC was provided for by s 35Y which was in the following terms: "(1) The Minister may give the Public Transport Ticketing Corporation Board written directions in relation to the exercise of the Public Transport Ticketing Corporation's functions. (2) Subject to this section, the Board and the Chief Executive Officer of the Public Transport Ticketing Corporation must ensure that the Public Transport Ticketing Corporation complies with any such direction. (3) However, the Minister may make a direction under this section that has a significant financial consequence for the Public Transport Ticketing Corporation only if the Minister has obtained the concurrence of the Treasurer."

The PTTC was obliged to supply the Minister with information relating to its activities as required and to keep the Minister informed "of the general conduct of its activities, and of any significant developments in its activities".

The relevant amendments made to the TA Act as at 1 July 2010 under the 2010 Act omitted Pt 3B, but continued the PTTC as constituted by s 35R and, by cl 2(3) of Sch 9 inserted into the TA Act by the 2010 Act, Sch 5, made the PTTC "a NSW Government agency", a phrase defined by the Interpretation Act 1987 (NSW), s 13A as a body that "has the status, privileges and immunities of the Crown". The objectives of the PTTC were set out in cl 3(1) of Sch 9 of the TA Act introduced by the 2010 Act, Sch 5, and, in effect, placed it in run-off: "(1) The objectives of the Public Transport Ticketing Corporation are as follows: (a) to manage its assets, rights and liabilities effectively and responsibly, (b) to minimise the risk exposure of the State arising from its activities, (c) to achieve the efficient and timely winding up of residual business activities."

The affairs of the PTTC were to be managed by the Director-General: cl 4(1) of Sch 9 of the TA Act introduced by the 2010 Act, Sch 5 (and see also the 2010 Act, s 3C dealing with the functions of the Director-General).

The primary judge addressed the question by reference to the Evidence Act , ss 130 and 131A. The State argued at the hearing of the appeal (but not in its first written submissions) that this was an error and that his Honour should have addressed the question by reference to the common law. Nevertheless, it was submitted that there was little difference between the two regimes. Notwithstanding this last submission, it is necessary for this Court to decide upon the correct legal framework by reference to which to assess the rights and immunity in question.

Sections 130 and 131A are in the following terms: "130 Exclusion of evidence of matters of state (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Commonwealth and a State or between 2 or more States, or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant-whether the direction is to be made subject to the condition that the prosecution be stayed. (6) A reference in this section to a State includes a reference to a Territory. ... 131A Application of Division to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6."

The State submitted that the terms of s 131A(1) were not engaged. That was so, it was submitted, because the State, which had the carriage of the upholding of the immunity was not a person subject to a disclosure requirement who objects to giving that information or document. The PTTC is the person subject to the disclosure requirement; all the documents are discovered by it and are within its custody, power and control. The State is seeking to rely upon the immunity, not the PTTC, and the State is not subject to the disclosure requirements.

The PTTC withheld from inspection documents which it apprehended may be the subject of a claim for public interest immunity. The State filed a motion in the proceedings (without objection by ERG) for the purpose of making the claims for public interest immunity. The PTTC submitted (in a carefully worded submission) that it had a "general preference that all relevant, non-privileged material be made available to the parties for use in the proceedings, while recognising that the forensic interests of the parties must yield to the principles of public interest immunity. [It] defers to the Sate and does not wish to be heard [on the immunity issues]." (Outline of submissions dated 11 October 2010.) The State, not the PTTC, had carriage of the motion propounding the immunity.

The State submitted first, that the PTTC was not the State, although it was a statutory body representing and having the status of the Crown: TA Act, s 35R(2) and now "a NSW Government agency": cl 2(3) of Sch 9 introduced by the 2010 Act, Sch 5; and secondly, that the State (or the Crown) cannot be described as "a person" as a matter of statutory interpretation.

ERG submitted that at the time the PTTC was required to disclose the documents it was a statutory body representing the Crown and so the State and the PTTC were the same person. The position since 1 July 2010 is, it was submitted, even clearer. So, it was submitted, the State was claiming the immunity and it (through the PTTC) was required to produce the documents.

That the PTTC has the status of the Crown does not deny its character as a corporation constituted by the TA Act, s 35R. One aspect of that character is its separateness as a corporate personality. As a corporation constituted by s 35R, the PTTC was continued by the 2010 Act, cl 2(1) of Sch 9, introduced into the TA Act by the 2010 Act, Sch 5. For the purposes of the Australian Constitution , s 75(iv) or s 114 or of the Judiciary Act 1903 (Cth), s 38, the PTTC may well be the State: State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62; 161 CLR 639; Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; 174 CLR 219; Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; 119 CLR 334. Such provisions are not to be defeated or avoided by the precise corporate form in which the State conducts its affairs. That, however, does not mean that the PTTC does not have a separate personality as a corporation, distinct from the polity of the State of New South Wales: Commonwealth v Silverton Ltd (1997) 130 ACTR I at 13-18; Ex parte Workers' Compensation Board of Queensland [1983] 1 Qd R 450. In the last two cases, such separateness of the entity permitted agencies of the one polity to sue each other.

It is unnecessary to discuss the manner in which the dictum that the Crown is "one and indivisible" has been necessarily varied by the political exigencies of Empire and Federation: see P W Hogg, Liability of the Crown (LawBook Co, 2 nd ed, 1989) at pp 10-12 and H E Renfree, The Executive Power of the Commonwealth of Australia (Legal Books, 1984) at pp 51-57. It is sufficient to note that the different emanations of the Crown in the right of different polities are different bodies politic: cf R v Sutton [1908] HCA 26; 5 CLR 789; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; 28 CLR 129; Commonwealth v Cigamatic Pty Ltd (In Liquidation) [1962] HCA 40; 108 CLR 372.

The issue here is one of the separateness of juristic person between the body politic of New South Wales and a corporation the creature of statute. The TA Act says the PTTC is a corporation; hence it is a distinct entity. The 2010 Act continued it as such. The PTTC (albeit a corporation) is "a person ... required by a disclosure requirement [as defined in s 131A(2)] ... to produce a document". However, it does not "object to ... providing that document". Its carefully drafted position does not amount to such objection. The State objects. Assuming for the moment that the State (being the body politic of New South Wales) is "a person" for the purposes of s 131A(1)(a) (which, for the reasons set out below, it is), it is not a person who is required, by pre-trial discovery as the relevant disclosure requirement for s 131A(2), to produce the documents. It is for this purpose a separate entity from the PTTC, although the PTTC represents the Crown and for the purposes of the Judiciary Act and Constitution may well be the State. That does not make the corporation created by s 35R and the body politic the same "person". On this basis, the Evidence Act , ss 130 and 131A are not engaged.

Having regard to this conclusion, it is not strictly necessary to consider whether the State is "a person" within the meaning of s 131A(1)(a) of the Evidence Act . Nonetheless, as the question was debated in argument, it is appropriate to express a view.

The question of whether the State is "a person" for the purpose, and within the meaning, of s 131A(1)(a) is a matter of statutory interpretation. This process commences with the presumption that the general words of a statute do not bind the Crown or its instrumentalities or agents: Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 22. The earlier position that the Crown would only be bound if the statute contained express words to that effect or if the intention to bind the Crown was manifest from the very terms of the statute is now viewed as outdated: Bropho at 19 and cf Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 at 61; Bradken Consolidated Ltd v Broken Hill Pty Co Ltd [1979] HCA 15; 145 CLR 107. In Bropho , six justices of the High Court said (at 23): "In the case of legislative provisions enacted subsequent to this decision [which the Evidence Act was], the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises. If, for example, the question in issue is whether the general words of a statute should be construed in a way which would make the Sovereign herself or himself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong."

To assess the meaning of the phrase "a person" for the purposes of s 131A(1)(a), it is important to consider the relevant provisions of the Interpretation Act and the provisions of the Evidence Act itself. Section 21 of the Interpretation Act provides that, in any Act or instrument, the meaning of the term "person" includes "an individual, a corporation and a body corporate or politic". No contrary definition of "person" is contained in the Evidence Act . Section 7 of the Evidence Act provides as follows: "This Act binds the Crown in right of New South Wales and also, so far as the legislative power of Parliament permits, in all its other capacities."

In Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334, the High Court considered whether reference to a "person" (as including a person not being a corporation) in ss 6(3) and 75B(1) of the Trade Practices Act 1974 (Cth), extended the application of some aspects of the legislation to the State of New South Wales. It did so against the backdrop of the Acts Interpretation Act 1901 (Cth), s 22(1), which provides, in similar terms to the Interpretation Act , that expressions used to denote persons generally include a body politic. The majority of the Court held that at the time of the acts complained of the relevant provisions of the Trade Practices Act did not apply to the State of New South Wales (at 349). Section 2A of the Trade Practices Act provided, relevantly: "this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth" and that the Act would apply to the Commonwealth (and each authority of the Commonwealth) in so far as it carried on a business as if it were a corporation. The inclusion of s 2A was held by the majority of the Court to raise the rule of statutory construction embodied in the Latin maxim expressio unius est exclusio alterius such that s 2A represented a "complete and exhaustive statement" of the Act's application to the Commonwealth (at 348-349). Although not an express exclusion of the application of the Act to the States, it was held to tell strongly against the Act so extending. Thus, the majority of the Court found that the Trade Practices Act evinced an intention that a State was not a person for the purposes of the relevant sections, contrary to the Acts Interpretation Act 1901 (Cth), s 22(1).

In Commonwealth v Wood [2006] FCA 60; 148 FCR 276, Heerey J held that the Commonwealth was a "person" for the purposes of the application of the Anti-Discrimination Act 1998 (Tas), s 16. His Honour held that s 4, which stated (similarly to s 7 of the Evidence Act ) that the Act bound the Crown in right of the State (Tasmania) and, so far as was permissible, in all other capacities, extended to bind the Crown in right of the Commonwealth. In so finding, Heerey J gave weight to the fact that the Anti-Discrimination Act was beneficial legislation, which ought to be construed liberally and that "since s 4 provides expressly that the Crown in the right of Tasmania is bound, the Crown, at least in that capacity, must be a 'person' for the purpose of s 16" (at 283). Heerey J's decision was not followed in Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; 169 FCR 85, per Weinberg J and Kenny J, Goldberg J dissenting. Weinberg J held that, reading the Anti-Discrimination Act 1998 (Tas) as a whole, the construction supported by s 4 that the Commonwealth was a "person", was outweighed by indications elsewhere in the Act which tended against that being the case (at 118). Kenny J also found that the Anti-Discrimination Act 1998 (Tas), viewed as a whole, did not apply to the Commonwealth as a person. Her Honour noted that the Acts Interpretation Act 1931 (Tas), s 41(1) (unlike the Commonwealth and New South Wales Acts) stated that the expression "person" "shall include any body of persons, corporate or unincorporated, other than the Crown" (at 123). Kenny J also noted that the definition of a "person" in the Anti-Discrimination Act 1998 (Tas), s 3, included an "organisation" and "organisation" was defined to include "a council, a Government department ... or a State authority". Her Honour held that the specific reference to State authorities and State departments and local government, which would come within that term in the absence of reference to other bodies politic weighed against the term "organisation", and, therefore, "person" as including the Commonwealth (at 125-126).

As mentioned earlier, the Interpretation Act , s 21 adopts the wider definition of the term person as including a body politic. The Evidence Act , ss 130 and 131A do not seek to impose upon the State obligations of a nature which would require express language that the Crown be "a person" for the purposes of those sections. Taken together with s 7 of the Evidence Act , which states the Crown to be bound unreservedly, the construction favoured in the Interpretation Act would not appear to be displaced.

Further, the phrase "a person" finds its place in Div 4 of Pt 3.10 dealing with privileges which include in s 130 in Div 3 of Pt 3.10 the question of matters of State. One of the circumstances to which ss 130 and 131A can be seen to be naturally directed is the State (and not merely instrumentalities or corporate agents of the State) being required by a "disclosure requirement" to produce a document and objecting to that course. If there were litigation to which the polity of the State of New South Wales was a party or in which a subpoena was directed to it, the plain intent of ss 130 and 131A is that the Evidence Act would regulate production. In that context, the word "person" would be wide enough to encompass the State, displacing any presumption to the contrary.

Nevertheless, for the reasons I have earlier given, the Evidence Act , s 131A, is not engaged here.

Notwithstanding this conclusion, the assessment of the claims for the immunity will be undertaken both by reference to the common law and the Evidence Act , s 130.

Both the common law and s 130 require two broad stages of analysis: first the assessment of the character of the information or document (as state papers or as relating to a matter of state) and secondly a weighing or balancing exercise to assess the public interest on whether disclosure would prejudice the proper functioning of the government.

The reasons of the majority (Mason CJ, Brennan J, Deane J, Dawson J, Gaudron J and McHugh J) in Commonwealth v Northern Land Council [1993] HCA 24; 176 CLR 604 (" NLC ") at 614-619 lay out the principles to be applied in the operation of the common law of public interest immunity. It has been accepted that those principles assist in informing of the content and operation of the Evidence Act , s 130: Eastman v The Queen (1997) 76 FCR 9 at 63 (per curiam); Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010; 100 FCR 229 at 246 (von Doussa J). None of the parties in the present case suggested otherwise. It is therefore unnecessary to consider the extent to which, if at all, s 130 of the Evidence Act departs from common law principles.

It is not appropriate to take one line or one idea from the discussion by their Honours in NLC . The essence, however, of the underpinning ideas expressed in the reasons is the prevention of prejudice to the subject to which the Evidence Act , s 130(4)(f) is directed: the proper functioning of government of the polities of the Federation.

A number of propositions can be taken from their Honours' reasons to guide consideration of this issue. It is in the public interest that deliberations of Cabinet, including the decisions made by Cabinet, should remain confidential in support of the collective responsibility of Cabinet government: NLC at 615. It is the position of the body as responsible for the creation of state policy at the highest level that engenders the need for protection: NLC at 615. Thus, an important consideration is the protection of deliberations leading to the formulation of state policy, though this proposition should not be taken as meaning that only formulation of policy is to be protected. The threat of disclosure may impede or mute free and vigorous exchange in Cabinet: NLC at 615. Decision-making and policy development by Cabinet is to be uninhibited: NLC at 616. The division of claims into "class" and "contents" claims is rough, but acceptable, to differentiate types of documents the disclosure of which would injure the public interest, irrespective of contents, and those which ought not to be disclosed because of their contents: NLC at 616. Documents revealing Cabinet deliberations and decisions fall within the former class. But their immunity is not absolute: NLC at 616. The immunity must be weighed against the public interest in the administration of justice: NLC at 616.

The nature of this weighing or balancing process is what lies at the heart of any contested application such as this. The majority in NLC at 616-617 approved a passage from the judgment of Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 43 which is worthy of repetition here: "The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made."

The majority in NLC at 617 elaborated upon the last sentence in this passage from Gibbs ACJ's reasons in Sankey v Whitlam saying: "In a case where a document fell into a class of document the disclosure of which would be injurious to the public interest regardless of the contents, a court could conclude that 'disclosure would not really be detrimental to the public interest' only in circumstances where there was a competing public interest, such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality."

Their Honours then went on to say at 617 that the currency or controversiality of the subject matter is relevant to the balancing process. The character of the subject matter is, implicitly, also important. Their Honours had already spoken of policy and its formulation through the deliberations of Cabinet. Their Honours then emphasised that immunity of documents of Cabinet deliberations and Cabinet documents (ordinarily attracted irrespective of contents) is not absolute: NLC at 617-618. A court will initially lean against disclosure: NLC at 618. Whether circumstances are sufficient to displace the immunity depends in part on the nature of the class. As to this the majority said at 618: "In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice , but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations . Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different." (Emphasis added.)

The authoritative statements of principle and approach in NLC both expound the common law of Australia and assist in the understanding of the content of the phrase "prejudice [to] the proper functioning of government" for the purposes of s 130(4)(f).

Cabinet documents in the form of documents recording the matters put to Cabinet for discussion (such as minutes for the consideration of Cabinet) have been held to be in the same position as records of the deliberations or decisions of Cabinet: Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; 98 FCR 31 at 42-43 [42]-[45]; Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 at 573 [69] and J D Heydon, Cross on Evidence (LexisNexis Butterworths, 8 th Australian ed, 2010) at p 961 [27065]. Thus, broadly, records of Cabinet deliberations and decisions and documents revealing the deliberations of Cabinet will be regarded as attracting the protection conferred by public interest immunity or by that afforded to matters of state, subject to the balancing of the competing interests. The public interest in preserving the secrecy of such documents will ordinarily be given considerable weight in the balancing process.

The author of Cross on Evidence (8 th ed), after discussing the broad equivalence of documents recording the deliberations or decisions of Cabinet and those which reveal those deliberations says at p 961: "Having regard to the strength of the claim for immunity, a judge ought not to order disclosure unless satisfied that the materials are crucial for the proper determination of the proceedings."

Conformably with the weighing or balancing process discussed in NLC and inhering within s 130, relevant considerations to take into account are whether the documents concern policy, the currency and contemporaneous controversiality of the subject matter, the character of the subject matter otherwise, for instance whether national security or high policy and the forensic relevance of the documents: see the Full Court in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [16] (Wilcox J); Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [34] (Jagot J); and RP Data v Western Australian Land Information Authority [2010] FCA 922; 188 FCR 378 at [23] (Barker J).

The word "policy" should be recognised as a broad concept. It is notoriously difficult to differentiate between "policy" and "operation" in some contexts. I would understand the word to be used (and I use it below) in the sense of the consideration of approaches and conduct for the present and the future assessed by reference to the general interests of society. What I exclude from policy is the consideration, here, of a particular body of facts in a particular legal and contractual context and any discussion about that specific contractual matter.

This concept does not necessarily exclude consideration of what might be described as commercial ventures undertaken by governments or in which governments participate one way or another. The history of Australia reveals that governments have often participated in undertakings of a kind that involve large expenditure of money and large social and economic investments. To say this is to recognise that policy, economic and commercial considerations play a part in such undertakings.

However, the cases have recognised that the commercial or contractual responsibilities of government, once entered, may well be able to be treated differently to questions of policy. To the extent that the executive branch of government participates in contractual arrangements and commercial undertakings (in the advancement of the public interest), there is much to be said for the proposition (present elsewhere in the legal system eg the Judiciary Act 1903 (Cth), s 64) that it should be treated like any other litigant in a commercial dispute in which it finds itself: cf Robinson v South Australia (No 2) [1931] AC 704 at 715; Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60 at 63-64; Hooker Corporation Ltd v Darling Harbour Authority (1987) 14 ALD 110; Carey v Ontario [1986] 2 SCR 637 at [82]-[84]; Adelaide Brighton Cement Ltd v South Australia [1999] SASC 379; 75 SASR 209; Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; 262 ALR 27 at 38 [39]. These cases reveal that whilst not a hard and fast consideration, the commercial character of a contract as the subject matter of a document is an important consideration in the balancing exercise. In particular, consideration of a specific contractual dispute or of particular facts relevant to that dispute may require a different approach than consideration of whether a government should become involved in a proposed project. In this respect, an important consideration in the due administration of justice is the denial of any possible perception that the government is in a privileged position in how it litigates its commercial rights and entitlements against citizens, in the absence of demonstration of a proper basis of interest of a character that attracts the immunity. There are many circumstances where policy has got nothing to do with a decision by government as to a step in a commercial arrangement or dispute. There are other circumstances where commercial decision-making and policy can intersect.

The likelihood that candour by public officials will be discouraged should disclosure of their communications be possible has been at times doubted: Air Canada v Secretary of State for Trade (No 2) [1983] 1 All ER 161 at 168; and see NLC at 615. Whatever may be the legitimacy of that consideration in regard to non-commercial questions or in questions of policy, it should usually have little weight in the reporting on and discussing of the factual and legal aspects of a commercial dispute involving the State. The candour of those reporting to Ministers and Cabinet about the factual and legal state of a contractual or commercial dispute and the available courses of action is hardly likely to be undermined if, in due course, when the dispute becomes litigious, the advice is disclosed in litigation about the contract or commercial transaction.

These kinds of considerations must be brought to bear on the individual documents with which we are asked to deal. Broad generalisations are to be avoided.

Criticism was made of the evidence led by the State, both in the primary judge's reasons and in submissions in this Court. Whilst there was a degree of generality about it, once one descends to the document in question the issues of application of principle become tolerably apparent. I can understand that with the volume of documents a somewhat general approach was chosen. I can also understand why it may have been very difficult to be more specific.

In the end, using the evidence led, I am able to come to a view on the attachment or not of the immunity. In these circumstances, I have not found it necessary to deal with ERG's submissions on so-called "cherry-picking" by the State.

Before dealing with these documents, Mr Miller's affidavit described the Cabinet and Cabinet processes (at paras 11-26). In that explanation the Budget Cabinet Committee was described as a committee charged with the responsibility of overseeing the financial management of the State, the Budget process and ongoing expenditure across government. The Committee is part of Cabinet.

The six documents in category D were described as follows: