The only (unintended) light note in this judgment of Justice Einstein in the NSW Supreme Court on a public interest immunity claim by the State of New South Wales was the reference to one of the witnesses, Mr Nicholls, "currently acting as Deputy Director General of the Department of Trance bought and infrastructure" [at 38 and probably corrected by the time you get to read it.] Ah, the perils of proof reading in the age of Spellcheck... and yes I've had a few, so chin up to the Judge's Associate.Update-still there a week later so you wonder who read the judgment.
The rest was a setback for the heavyweight legal team of Mr P Hastings QC, Ms C Spruce, Mr R Bhalla, and Mr J Mitchell, instructed by the Crown Solicitor. They argued on behalf of the State that certain documents should be withheld from discovery by the defendants in this lawsuit initiated by the Government following its decision to terminate the ERG contract for an integrated smartcard-based ticketing and fare payment system for public transport in Sydney. The issue was a claim that the documents should not be discoverable by the defendants because they related to matters of state and the public interest in producing them was outweighed by the public interest in preserving secrecy or confidentiality (Section 130(1) of the Evidence Act.
Justice Einstein was unpersuaded by the evidence of the two public servants who under cross examination [34-36 and 39-41] were shown to have not turned their minds to a principled approach to the issue, and in effect signed affidavits that were put in front of them concerning the status of the 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.
Justice Einstein said the State bears the onus of seeking to have the Court exercise its discretion to prevent disclosure of documents:
49 ..... In that regard the State is the person seeking to prevent the production of material documents and must demonstrate that the material documents relate to matters of state and that the balancing test favours non-production. The onus is a heavy burden requiring a proponent of the immunity who is resisting production to "establish a 'real’ rather than merely 'some' or 'any detriment to the public interest from disclosure" of the documents: cf: Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 at [25]; Somerville v ASC (1995) 60 FCR 319 at 354.
50 In any event even if a considerable number of the documents do relate to matters of State, subject to what is said below, the balancing exercise favours inspection. The defendants in these proceedings face a damages claim brought by the PTTC of $77 million for monies allegedly spent by the PTTC and the NSW Government between 2002 and 2008 supervising the Project in addition to a claim for compound interest. Many of the documents relate to briefings to the Minister or meetings referred to in the PTTC’s own evidence in support of its claim. I accept that as a matter of fairness and in the interests of the Court having all relevant evidence put before it, ITSL and ERG should be permitted to inspect the Claim Documents.
Justice Einstein was prepared to order only that " the allegedly confidential documents identified with the words ' Cabinet-In-Confidence' " be withheld but nothing else including briefings to the Minister.
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