[2024] SASCA 130

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE CHIEF JUSTICE KOURAKIS) [2024] SASC 46 Appellant: CPB CONTRACTORS PTY LTD AND HANSEN YUNCKEN PTY LTD JOINTLY AND SEVERALLY TRADING AS HYLC JOINT VENTURE Counsel: MR B ROBERTS KC WITH MR E HYDE - Solicitor: KING & WOOD MALLESONS Respondent: STATE OF SOUTH AUSTRALIA Counsel: MR D O'LEARY SC WITH MR P LEESON - Solicitor: LK LAW Interested Party: CELSUS PTY LTD Hearing Date/s: 13/06/2024 File No/s: CIV-24-003861 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. CPB CONTRACTORS PTY LTD AND HANSEN YUNCKEN PTY LTD v STATE OF SA [2024] SASCA 130 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David) 14 November 2024 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - OTHER MATTERS APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - INSPECTION BY COURT PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - OTHER GROUNDS This is an appeal against a decision by which claims of public interest immunity concerning what were described as “Cabinet documents” were upheld and the application to inspect those documents was dismissed. -- 1 of 86 -- The appellant (the Builder), the respondent (the State) and the interested party (Celsus) are parties to private arbitral proceedings concerning the project to design and construct the new Royal Adelaide Hospital in South Australia (nRAH) (the ACICA Arbitrations). Celsus took no part in the appeal. This appeal is only concerned with the Builder’s challenge to the State’s claims to public interest immunity made over less than 100 documents. The hearings before the primary judge were facilitated by a combination of “open” affidavits and “closed” or confidential affidavits. Much of the material has been filed on a “party access basis” given the confidential nature of the private arbitral proceedings. The evidence relied on by the State in support of its claims included affidavit evidence from the Acting Executive Director, Cabinet Office, in the Department of the Premier and Cabinet, who had reviewed the documents. The documents the subject of the public interest immunity claims were said by the witness to fall into three sub-categories: Category A1: Documents that were Cabinet documents (whether in final or draft form or were an attachment or which repeated the content contained within a Cabinet document). Category A2: Documents revealing Cabinet decisions, deliberations or discussions. Category A3: Documents which related to the preparation of Cabinet documents, and which would reveal the content of Cabinet documents. The primary judge treated the claims as “class claims” and inspected only a handful of the documents, explaining that he did so because of their “temporal proximity” to the issues arising in the ACICA Arbitrations, and because the subject-matter conveyed by their titles suggested that they may contain information which “would materially assist the prosecution of [the Builder’s] claims”. The Builder challenged the adequacy of the State’s evidence and the Categories it relied on. The Builder contended that as the disputed documents were relevant, the primary judge should have inspected them. The Builder challenged only certain aspects of the “first stage” of the process for determining a public interest immunity claim. The Builder did not challenge the “second stage”, which has been described as the weighing or “balancing exercise”, by which the public interest in refusing disclosure is evaluated in order to determine whether it outweighs the public interest in permitting disclosure. The Builder also challenged the decision by the primary judge to inspect only a handful of the disputed documents. The Builder made an application to lead fresh evidence to demonstrate that a number of documents were not properly the subject of claims of immunity. The Builder’s proposed evidence included various discovered documents which appeared to be identical to those over which immunity claims had been made, but which were not the subject of any redactions. The Builder contended that when the unredacted portions of the documents were considered, it was clear that there was no proper basis for redaction and, in consequence, for the claims of public interest immunity. HELD (the Court), dismissing Builder’s application to lead fresh evidence, and the Builder’s appeal, in each case with costs. 1. The determination of an appeal against a claim of public interest immunity does not involve an appeal against a discretionary decision but is determined according to the standard of correctness. Whether the court should or should not inspect documents subject to claims of public interest immunity does involve the exercise of a discretion, and that aspect of an appeal will be determined according to whether there is error of a kind recognised in House v The King. [126], [168] and [346] 2. The Builder’s criticisms of the State’s evidence should be rejected. Given the way each of the Categories have been framed, it has not been demonstrated that they fall outside the proper scope of what may be regarded as Cabinet documents merely because they might only indirectly reveal the deliberations of Cabinet. What is common to each Category is the premise that the disputed documents tend to reveal Cabinet decisions, deliberations or communications, where the claim is strongest in the case of Category A1 documents, even -- 2 of 86 -- where the documents are those of a Cabinet committee. [129]-[132], [164]-[166], [309]-[311] and [337]-[339] 3. The purpose for which a document was bought into existence may, like legal professional privilege, be relevant when determining whether it is subject to public interest immunity. Unlike legal professional privilege, however, whether a document is covered by public interest immunity is not necessarily determined by ascertaining the purpose for which it was brought into existence. [153], [321]-[322] 4. In so far as the Builder asserted that mere “updates” to Cabinet or a Cabinet committee could not be the subject of claims for immunity, that assertion is without support in the authorities and must be rejected. [163], [323]-[325] 5. A finding of relevance concerning a document the subject of what appears to be a good claim of public interest immunity does not, without more, require the court to inspect in order to weigh the competing public interests for and against disclosure. The broad discretion is not constrained in that way. The Builder has not established that the primary judge erred in connection with his exercise of discretion. [188]-[189], [349]-[355] 6. The evidence relied on by the Builder is not in any sense fresh evidence and the Builder cannot be permitted to rely on the State’s inadvertent error in disclosing or failing to redact documents over which public interest immunity claims have been upheld. This evidence was always available to the Builder and the parties must be held to the approach they took to the evidence before the primary judge. [203]-[204], [358] Commercial Arbitration Act 2011 (SA) s 27E; Evidence Act 2008 (Vic) s 130; Freedom of Information Act 1991 (SA); Public Finance and Audit Act 1987 (SA); Uniform Civil Rules 2020 (SA) r 32.2(4), referred to. A v Hayden (No 2) (1984) 59 ALJR 81; Adelaide Brighton Cement v South Australia (1999) 75 SASR 209; Alister v The Queen (1984) 154 CLR 404; Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd [1916] 1 KB 822; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1766; Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227; Aversa v Transport for New South Wales [2022] NSWSC 277; Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523; Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; Borg v Barnes (1987) 10 NSWLR 734; Burmah Oil Co Ltd v Governor and Co of the Bank of England [1979] 1 WLR 473; Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980] AC 1090; Cain v Glass (No 2) (1985) 3 NSWLR 230; Carey v Ontario [1986] 2 SCR 637; Casley-Smith v District Council of Stirling (1989) 51 SASR 447; Chief Commissioner of Police (Vic) v Crupi (2024) 98 ALJR 1131; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31; Commonwealth v Northern Land Council (1993) 176 CLR 604; Conway v Rimmer [1968] AC 910; CPB Contractors Pty Ltd v Celsus Pty Ltd (2017) 353 ALR 84; CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v State of SA [2024] SASC 46; CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Draoui v Le [2021] SASCA 33; Duncan v Cammell, Laird & Co Ltd [1942] AC 624; Egan v Chadwick (1999) 46 NSWLR 563; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; Gartner v Carter [2004] FCA 258; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Griffin v South Australia (1925) 36 CLR 378; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60; Hooker Corporation Ltd v Darling Harbour Authority (1987) 14 ALD 110; House v The King (1936) 55 CLR 499; Kamasaee v Commonwealth (No 3) (2016) 52 VR 322; Kamasaee v Commonwealth (No 5) (2016) 52 VR 322; Ku-ring-gai Council v West (2017) 95 NSWLR 1; Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650; Legal Services Commission v Trotter (1990) 54 SASR 74; Marconi's Wireless Telegraph Co Ltd v Commonwealth (No 2) (1913) 16 CLR 178; Medical Board of South Australia v Fisher (2000) 76 SASR 242; Middleton v Western Australia (1996) 17 WAR 201; Neilson v Laugharne [1981] QB 736; New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60; New South Wales v Ryan (1998) 101 LGERA 246; New South Wales Commissioner of Police v Nationwide News Pty Ltd (2007) 70 NSWLR 643; Rankine v -- 3 of 86 -- South Australia [2022] SASCA 18; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080; Police Federation of Australia v Nixon (2011) 198 FCR 267; Re Timor Sea Oil & Gas Australia Pty Ltd (in liq) (2020) 389 ALR 545; Robinson v South Australia [1931] AC 704; Robinson v South Australia (No 2) [1931] AC 704; Rogers v Home Secretary [1973] AC 388; RP Data v Western Australian Land Information Authority [2010] FCA 922; Sankey v Whitlam (1978) 142 CLR 1; Spencer v Commonwealth (2012) 206 FCR 309; Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; Victoria v Brazel (2008) 19 VR 553; Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2) [2001] VSC 249; Welden v Smith [1924] AC 484; Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414; Young v Quin (1985) 4 FCR 483; Zarro v Australian Securities Commission (1992) 36 FCR 40, considered. -- 4 of 86 -- CPB CONTRACTORS PTY LTD AND HANSEN YUNCKEN PTY LTD v STATE OF SA [2024] SASCA 130 Court of Appeal – Civil: Livesey P, Doyle and David JJA LIVESEY P AND DAVID JA. Introduction 1 This is an appeal against a decision by which claims of public interest immunity concerning what were described as “Cabinet documents” were upheld and the application to inspect those documents was dismissed.1 2 The appellant (the Builder), the respondent (the State) and the interested party (Celsus) are parties to private arbitral proceedings concerning the project to design and construct the new Royal Adelaide Hospital in South Australia (nRAH). 3 The construction of the nRAH was procured by way of a public-private partnership. By reason of “back-to-back” contracts, there are two arbitrations.2 The first concerns an arbitration between the Builder and Celsus and the second concerns an arbitration between the State and Celsus. These are being heard in parallel by the same arbitrator. The seat of these arbitrations is Adelaide, South Australia. The hearing of these arbitrations commenced in late February, earlier this year. 4 Celsus determined to take no part in this appeal and will abide the outcome. 5 Among around 200,000 documents discovered by the State, nearly 700 were subject, whether in part or completely, to claims of public interest immunity or parliamentary privilege. Those documents were either produced in a redacted form or entirely withheld. Over time, the Builder’s contentions regarding these documents narrowed. 6 This appeal is only concerned with claims to public interest immunity made over less than 100 documents. 7 The hearings before the primary judge were facilitated by a combination of “open” affidavits and “closed” or confidential affidavits. Much of the material has been filed on a “party access basis” given the confidential nature of the private arbitral proceedings. 8 After hearing from the parties late last year, the primary judge gave extensive reasons for his decision that the claims of public interest immunity should be upheld, together with his refusal to inspect most of the documents. The parties to 1 CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v State of SA [2024] SASC 46 (Kourakis CJ) (Reasons). 2 Designated ACICA case 2018-119 and ACICA case 2018-124, together, the ACICA Arbitrations. -- 5 of 86 -- [2024] SASCA 130 Livesey P and David JA 2 this appeal remain in dispute about some of the principles to be applied, together with their application by the primary judge. 9 For the reasons that follow, the appeal should be dismissed. These reasons are set out as follows: Background to this appeal – the contractual arrangements .............................................. 2 Technical completion and commercial acceptance .......................................................... 3 The ACICA Arbitrations .................................................................................................. 4 The disputed public interest immunity and parliamentary privilege claims .................. 10 The evidence relied on by the State – Cabinet documents ............................................. 11 The documents the subject of the Builder’s application................................................. 14 The decision of the primary judge .................................................................................. 17 The Builder’s grounds of appeal .................................................................................... 22 The determination of appeal grounds 1 and 3 – the first stage ....................................... 22 The determination of appeal ground 2 – inspection ....................................................... 36 A further issue: should this Court inspect? ..................................................................... 41 A further issue: fresh evidence ....................................................................................... 42 Confidential affidavits .................................................................................................... 44 Conclusion ...................................................................................................................... 45 Background to this appeal – the contractual arrangements 10 The Builder is an unincorporated joint venture between CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd, trading as the HYLC Joint Venture. 11 Celsus was formerly known as SA Health Partnership Nominees Pty Ltd, trustee for the SA Health Partnership Trust, now known as the Celsus Trust. 12 Celsus and the Builder are parties to a contract dated 20 May 2011 for the design and construction of the nRAH (the Construction Contract). This was amended on 8 August 2011 and again on 31 January 2014. Pursuant to clause 72.2(b) of that contract, the Commercial Arbitration Act 2011 (SA) is the law applicable to the ACICA Arbitrations. By s 27E, confidentiality obligations apply to the conduct of the arbitral proceedings. Accordingly, party access orders were sought and made concerning documents tendered in these proceedings pursuant to r 32.2(4) of the Uniform Civil Rules 2020 (SA). 13 Under the Construction Contract the design and construction costs for the nRAH were specified at $1.85 billion. 14 Separately, the State and Celsus were parties to a contract also dated 20 May 2011 (the Project Agreement). That contract was also amended on 8 August 2011 and again on 31 January 2014. -- 6 of 86 -- [2024] SASCA 130 Livesey P and David JA 3 15 In addition, the State, the Builder and Celsus entered into a deed known as the “Builder Direct Deed” which concerned, amongst other matters, the role of the State in relation to the Construction Contract as well as its knowledge regarding the terms of that contract. Technical completion and commercial acceptance 16 Initially, the Construction Contract required that the Builder achieve technical completion by 19 January 2016 and commercial acceptance by 18 April 2016. 17 On or around 20 May 2011, the State, Celsus and Donald Cant Watts Corke Pty Ltd entered into an Independent Certifier Agreement by which the latter was appointed independent certifier for the nRAH. 18 On or around 20 May 2011, the State, Celsus and other financiers (SA Health Partnerships Pty Ltd and ANZ Fiduciary Services Pty Ltd) entered into a Financier Direct Deed. 19 Before September 2015, the Builder notified Celsus of a number of claims, including for extensions of time and delay costs associated with the construction of the nRAH. However, on 17 September 2015 deeds of settlement were entered into by which various claims concerning extensions of time and delay costs were resolved and the dates for technical completion and commercial acceptance were varied to 4 April and 3 July 2016, respectively. These deeds were entered into by Celsus and the Builder, as well as by the State and Celsus, and have been referred to as the Interim Settlement Agreement. 20 Following the Interim Settlement Agreement, the Builder forwarded to Celsus a Notice of Claimed Entitlements which explained its reasons for the delayed completion of the nRAH. These included:3 1. failures and misrepresentations by the State in relation to the Enterprise Patient Administration System (EPAS); 2. the failure by the independent certifier to provide independent certifier services in accordance with its obligations; 3. the notification and conduct of the State’s works; 4. delays and maladministration in the procuring and approval of minor modifications and modifications by the State and Celsus; 5. the wrongful rejection of the Builder’s various extension of time claims by the State and Celsus; 3 This Notice was referred to in CPB Contractors Pty Ltd v Celsus Pty Ltd (2017) 353 ALR 84, [25] (Lee J). -- 7 of 86 -- [2024] SASCA 130 Livesey P and David JA 4 6. the wrongful rejection of the Builder’s master works programmes by the State and Celsus; 7. unreasonable allegations of defects and so-called “ransom” demands by the State and Celsus; 8. the unlawful issuing of default notices by the State; and 9. unlawful interference with contractual relations. 21 Between January and mid-March 2017, the State, Celsus and the financiers (or some of them) entered into a suite of arrangements without the consent of the Builder, including:4 1. an agreement concerning the completion of the nRAH as an outcome of a mediation, described as the Mediated Agreement; 2. a deed seeking to embody the effect of the Mediated Agreement, described as the Completion Deed; 3. a cure plan to give effect to the obligations set out in the Mediated Agreement and the Completion Deed, described as the purported Cure Plan; and 4. a deed known as the Consents & Acknowledgments Deed. 22 On 15 March 2017, the independent certifier awarded technical completion under the Project Agreement as amended by the Mediated Agreement, the Completion Deed and the purported Cure Plan. On the same date, Celsus awarded technical completion under the Construction Contract in reliance on the independent certifier’s award of technical completion. 23 On 13 June 2017, commercial acceptance was certified by the independent certifier and the State under the Project Agreement as amended by the Mediated Agreement, the Completion Deed and the purported Cure Plan, as well as by Celsus under the Construction Contract in reliance on the independent certifier. The ACICA Arbitrations 24 The ACICA Arbitrations were commenced in early 2018. The pleadings run to thousands of pages. In summary, the Builder claims that the State conducted itself wrongfully throughout the nRAH Project, and that Celsus did not take sufficient steps to ensure that the State met its obligations relating to the nRAH Project (the wrongful conduct claim). 25 The State denies the Builder’s wrongful conduct claim and contends that the dispute arose in circumstances where the Builder was 421 days late in meeting the 4 These documents are referred to in CPB Contractors Pty Ltd v Celsus Pty Ltd (2017) 353 ALR 84, [16] (Lee J). -- 8 of 86 -- [2024] SASCA 130 Livesey P and David JA 5 commercial acceptance date. As a result, the Builder was liable to pay to Celsus mandatory liquidated damages in the amount of approximately $185 million. 26 Paragraph [53] of the Builder’s seventh amended statement of claim in the arbitral proceedings pleads that the State adopted a strategy in breach of its duty to co-operate in the development of the nRAH:5 53 Overviews 53.1 From a point in time unknown to the Builder, but by no later than 2 November 2016, the State determined to, and subsequently did, embark upon a course of conduct, which included (amongst other things): (a) hindering [Celsus] and the Builder achieving [technical completion and commercial acceptance]; (b) failing to cooperate with [Celsus] and the Builder; (c) delaying the achievement of [technical completion and commercial acceptance] (and thereby payment of QSPs); (d) demanding $600 million in Ransom Compensation; (e) issuing invalid Notices of Default; (f) rejecting Cure Plans; (g) raising baseless allegations of safety issues; (h) inducing (or seeking to induce) [Celsus], in breach of its obligations under the Construction Contract, to terminate the Builder’s ongoing involvement in the Project and remove it from Site as soon as possible following the achievement of [technical completion], to withdraw all [extension of time] claims against the State and to procure the cessation of further claims being made by the Builder; and (i) inducing [Celsus] to enter into a series of unlawful agreements in breach of the Construction Contract, in breach of the Upstream Duty of Cooperation. 53.2 By reason of the State’s conduct and pursuant to clause 79.16(d) of the Construction Contract, the Builder reasonably believes that [Celsus] has a claim against the State for breach of the Upstream Duty of Cooperation. 53.3 The Builder is entitled to any relief granted to [Celsus] by reason of the State’s breach of the Upstream Duty of Cooperation. 53.4 Further, by reason of the matters pleaded below, [Celsus] breached the Downstream Duty of Cooperation and clause 1.8 of the Construction Contract. 5 Reasons, [32]. -- 9 of 86 -- [2024] SASCA 130 Livesey P and David JA 6 27 Paragraph [55] of the Builder’s claim pleads that, from at the latest November 2016, the State determined to hinder Celsus and the Builder from achieving technical completion and commercial acceptance, and not to cooperate with the Builder and Celsus in the discharge of the Construction Contract. It is also pleaded that the State determined to pursue compensation of about $160 million when it knew that it had no reasonable entitlement to that sum, and to procure Celsus to terminate the Builder’s ongoing involvement in the nRAH project. The Builder also pleaded that the State:6 (a) engaged in a course of conduct whereby the State’s failures were hidden from the Builder with the State delaying technical completion and commercial acceptance to postpone its obligations to make payments until it considered, for the then-Government’s political purposes, that it wished to open the nRAH, just prior to the March 2018 South Australian election (furthered through, amongst other things, a strategy of issuing and maintaining defect notices against the Builder’s works …); and (b) entered into a series of unlawful contracts with Celsus in breach of, and interfering with, the existing contractual framework for the [nRAH] so as to change the regime for completion of the nRAH, thereby masking its own failures and depriving the Builder of its contractual entitlements. 28 At the hearing of this appeal, junior counsel for the Builder accepted that its case involved “a large submission but that is the case we are advancing”. 29 The State denies these allegations. It contends that they are not supported by evidence, and they are inconsistent with the State’s attempt to facilitate the achievement of technical completion earlier than would otherwise have been the case. 30 An important aspect of the dispute concerns the role of various “decision-makers” who participated on the “nRAH Project Steering Committee”. The State established the nRAH Project Steering Committee as its decision-making body for the nRAH. 31 On the Builder’s case, these “decision-makers” comprised a small number of people who orchestrated what it alleged was wrongful conduct by the State. 32 In their statements served by the State in the course of the arbitration, each person alleged to be a “decision-maker” denied the allegations of wrongful conduct. Broadly, these decision-makers were, at the relevant times, the Project Director of the Department of Planning, Transport and Infrastructure (the Department), the Chief Executive Officers of the Department, Assistant Crown Solicitor “Chief Commercial Counsel” from the Crown Solicitor’s Office, 6 Reasons, [34]. -- 10 of 86 -- [2024] SASCA 130 Livesey P and David JA 7 and a Project Director from the Department of Health, whose company was retained as a consultant. 33 From time to time each of these decision-makers were nRAH Project Steering Committee members. The work of the nRAH Project Steering Committee was assisted by a “Commercial Strategy Team” headed by Mr Chris Gray, then an Assistant Crown Solicitor. The Commercial Strategy Team included those named in the following table, which also shows the title and responsibilities of each:7 Name Title Responsibility Vickie Kaminski Interim Chief Executive Accountable to government for the success of the new RAH Project – key decision maker, ensures service provider accountability, provides whole of Government input and support stakeholder management. Don Frater Deputy Chief Executive, Finance and Corporate Services Accountable for system wide finance and business services matters. Michael Deegan Chief Executive Officer, DPTI Accountable for effective administration of the Project Agreement with [Celsus] up to [commercial acceptance], in particular the successful delivery of design, construction and facilities management services under the agreement. David Reynolds Chief Executive Officer, DTF Advice on whole of Government affordability – input to value for money discussions on changes to the business case and its relationship to achieving the national efficient price for service delivery. Lidio Andreotti Senior Legal Counsel & Executive Solicitor, Crown Solicitor’s Office Provide legal oversight and advice on contractual and other relevant matters. Paul Myers Project Director Accountable for Contract Administration and Management through to [commercial acceptance] including FTP Management and Coordination. 34 The role of the nRAH Project Steering Committee was to maintain oversight of the delivery of the nRAH for the State, and to be responsible for formulating the decision-making that had a material impact on the business case for the nRAH. As its terms of reference described it, it was the “peak decision-making body”:8 The Steering Committee is the peak decision making body for the New RAH Project and is chaired by the [Chief Executive], DHA who is accountable for the success of the project. 7 Reasons, [16]. 8 Reasons, [13]. -- 11 of 86 -- [2024] SASCA 130 Livesey P and David JA 8 The Steering Committee meets at least monthly and [focused] on decisions that have a material impact on the business case for the project. The membership of the Steering Committee includes senior representatives of the relevant Government stakeholders … 35 During early 2016, there were meetings of the nRAH Project Steering Committee and correspondence was exchanged between the decision-makers concerning what was then described as the “nRAH Strategy”. 36 The Builder’s case is that, by 9 March 2016, the nRAH Project Steering Committee endorsed the State “position” that no concession would be made to Celsus on its existing contractual obligations to meet technical completion by 4 April 2016 and it discussed, in a general way, the risks of delay and the State’s response to those risks. 37 A briefing note was prepared and supplied to the nRAH Project Steering Committee which assessed different delay permutations and recommended strategies to manage them. For present purposes it is sufficient to observe that the briefing note assessed risk levels as moderate or high. A moderate risk was assessed in connection with pressure on the State budget, which it was said was “at some risk” because of “current cost pressures”. Another of the issues, assessed as a high risk, was that the State might be required to pay for “an empty hospital”. 38 In subsequent correspondence, what the State maintained were its reasonable requirements by way of compensation for delays in achieving technical completion were considered. There was some dispute amongst the decision-makers as to the appropriate level of compensation, with one suggesting that compensation of a few hundred thousand dollars was inadequate to reflect “the distress [the] State is incurring”.9 39 Soon after this correspondence, the Project Director resigned and addressed correspondence to the Minister for Health dated 8 April 2016. In the course of that correspondence, the Project Director referred to a strategy to set aside the contract and pursue an out of contract commercial agreement which, she said, placed her in an “untenable position”. 40 Later that year, the solicitors for the State sent a letter to the solicitors for the financiers and Celsus dated 2 November 2016 (the Lipman letter). 41 The Builder alleges and the State denies that the Lipman letter amounted to an attempt to exert undue pressure on Celsus to the detriment of the nRAH. In the wake of that correspondence there were conversations between representatives of the nRAH Project Steering Committee and the Builder. 42 These are the subject of dispute in the arbitrations. It is unnecessary to go into detail about them. It is sufficient to observe that the Builder alleges but the 9 Statement of Agreed Facts, 21. -- 12 of 86 -- [2024] SASCA 130 Livesey P and David JA 9 State denies that there was any strategy, commercial or otherwise, designed by the decision-makers to delay or disrupt the opening of the nRAH to deprive Celsus of payments to which it was rightfully entitled (and which, in the nature of the back-to-back arrangements which applied, would have been on-paid to the Builder). 43 The parties are in dispute about the proper meaning and effect of various meeting documents, such as agendas and minutes, of the nRAH Project Steering Committee and, particularly, whether what occurred during late 2016 and into the middle of 2017 represented wrongful conduct by the State, designed to extract for the State a range of benefits to which it was not properly entitled. 44 Separately, the parties are also in dispute about EPAS, including whether it formed part of the “State works” which it was the obligation of the State to supply before technical completion. As part of this dispute the Builder claims that the State was obliged to provide it with a “fully functional, nRAH-configured and production ready version of EPAS … in sufficient time” so that all testing could be performed before technical completion, but this was never done.10 45 Part of the State’s response is that EPAS did not ever form part of the “State works” (as defined in the relevant contractual documents). 46 Finally, the parties before the arbitrator are in dispute about claims by the Builder concerning additional costs it claims to have incurred because of what it contends were unknown pre-existing contamination and latent ground conditions. The Builder’s claim was not accepted by the State at the time. Nor were its claims for extensions of time and prolongation costs. The Builder pleads that, by reason of the contamination and latent ground conditions it changed its construction schedule, resulting in lost productivity. It contends that the Interim Settlement Agreements, at least on these issues, were procured by misrepresentation and unconscionable conduct. 47 The State denies that there was any contamination within the meaning of the Project Agreement and contends that the Builder did not follow the agreed site remediation plan. The State also pleads that the nRAH was constructed on a former railyard and the Builder was given detailed site investigation reports to guide remediation of the site. The State pleads that the Builder’s remediation management plan formed part of its contract bid, and the Builder did not discover previously unknown contamination. 48 The State contends that the Builder’s claim is concerned with the cost of disposing of waste soil which had to be excavated from the site to reach the required “bench levels” for construction, together with the Builder’s unauthorised decision to alter the remediation strategy. 10 Builder’s submissions before the primary judge, [59]. -- 13 of 86 -- [2024] SASCA 130 Livesey P and David JA 10 49 Discovery has been made in connection with these disputes, on the basis of direct relevance, and the issue on appeal concerns the extent to which relevant documents are properly subject to claims of public interest immunity. There are no longer any disputed claims concerning parliamentary privilege. 50 Before addressing the claims of immunity over the disputed documents, it is appropriate to stand back and look at the Builder’s case, concentrating on the relevant periods. 51 The disputed documents span dates between May 2011 and May 2017.11 52 At the outset, there are the claims notified by the Builder in September 2015, together with the Interim Settlement Agreement. After that time, though the pleadings refer to the State’s determination to embark on wrongful conduct by no later than early November 2016, the Builder relies on earlier events in March and April 2016, including the nRAH Project Steering Committee endorsement of the State’s position of making no concessions, and the Project Director’s resignation letter dated 8 April 2016 concerning the “nRAH Strategy”. That period culminated in the events from late 2016, including the entry into unlawful contracts in March 2017, concluding with the award of commercial acceptance in the middle of 2017. 53 Spliced through this period are the Builder’s allegations concerning EPAS and contamination. 54 This brief overview, at an admittedly high level, does not suggest that documents dated before early 2016 or after early 2017 are likely to be particularly probative of the Builder’s case, especially the allegations of wrongful conduct by the State and its decision-makers. The disputed public interest immunity and parliamentary privilege claims 55 Initially, the parties to the ACICA Arbitrations entered into arrangements by which the disputed public interest immunity and parliamentary privilege claims would be resolved by the Hon Roger Gyles AO KC. Ultimately, it was determined that he lacked jurisdiction and those claims would need to be resolved in this Court. 56 By that stage, during August and September 2023, the challenges concerned around 200 documents subject to claims of parliamentary privilege and around 115 documents subject to claims of public interest immunity. 57 Between November and December 2023, the parties agreed the procedural steps necessary to facilitate the determination of those disputed claims by this Court, which included agreeing a Statement of Agreed Facts. The purpose of the Statement of Agreed Facts was evidently to provide the factual context for the determination of the disputed public interest immunity and parliamentary privilege claims. 11 Builder’s “Aide Memoire”. -- 14 of 86 -- [2024] SASCA 130 Livesey P and David JA 11 58 Appended to the Statement of Agreed Facts were two schedules listing the documents subject to those respective claims. In addition, various of these documents were “colour coded” to reflect what the Builder said were the topics addressed by the documents. For example, Blue was used to denote those documents which concerned the Builder’s pleading about what it alleged was wrongful conduct by the State (and denied by it). Purple was used to denote the documents relevant to the nRAH Project Steering Committee. Green was used to denote documents relating to EPAS, and Orange denoted documents concerning the allegations of contamination. Grey was used to denote the documents referable to the disputed claims of parliamentary privilege. 59 For its part, the State used a different category system, where “A” referred to the public interest immunity documents and “B” to parliamentary privilege documents. As will be seen, there were sub-categories. The evidence relied on by the State – Cabinet documents 60 The evidence relied on by the State in support of its claims included affidavit evidence from Ms Green, Acting Executive Director, Cabinet Office, in the Department of the Premier and Cabinet. Ms Green has held that position since 17 April 2023. She has been with the South Australian public sector since March 2017. 61 In her present role, Ms Green is head of the Cabinet Office, reporting to the Deputy Chief Executive, Policy, Data and Intergovernmental Relations of the Department. 62 Much of Ms Green’s evidence was uncontentious. Indeed, some of it might be thought obvious. For example, she explained that Cabinet is the central and superior decision-making body of the South Australian Government and that it consisted of the Premier and Ministers. At Cabinet meetings, the Premier and Ministers regularly discuss, deliberate and decide on government action, policy and strategic direction. The Chief Executive of the Department is the most senior member of the public service and the only member permitted to attend Cabinet meetings. 63 Ms Green explained that under the Westminster system of government as applied in South Australia, there are longstanding conventions associated with Cabinet and how Cabinet information and deliberations are treated. There are key principles relating to collective responsibility, unity and confidentiality. 64 The necessity for Cabinet information to be carefully handled and protected is reflected in the SA Protective Security Framework. Strict confidentiality obligations apply and are recognised in the privileges applicable to Cabinet documents and any material which tends to reveal Cabinet deliberations. 65 Ms Green explained that the Cabinet Office maintains a secure electronic database for final Cabinet documents, including “Cabinet submissions” and -- 15 of 86 -- [2024] SASCA 130 Livesey P and David JA 12 attachments, “Cabinet notes” and attachments, Cabinet agendas and decision sets and agendas. The present database is known as “Shrike” and has been used since September 2018. The previous system, known as ECO, was used between 2008 and 2018. Access to the electronic Cabinet system is restricted to Ministers and limited ministerial staff and public servants. 66 Ms Green also explained that matters are brought to Cabinet for approval, discussion or direction for a variety of reasons, and that this is not limited to decision-making within established approvals and authorities. She gave as an example the financial expenditure delegations outlined in Treasurer’s instructions which extended to major procurements and commercial agreements. Sometimes, Ms Green explained, Cabinet may collectively decide that it wished to maintain oversight of a matter, such as a significant State project. 67 Ms Green said that from time-to-time Cabinet established Cabinet Committees. These operated under the same conventions and practices as Cabinet. 68 The discussions, deliberations and decisions made by Cabinet are informed by formal Cabinet papers. These are described as “Cabinet submissions” and “Cabinet notes”. Each must be signed by a Minister before it may be considered by Cabinet. Ms Green explained that a Cabinet submission seeks a decision from Cabinet, usually in the form of the approval of a proposal. Proposals may take the form of one or more recommendations for Cabinet’s decision. 69 Typically, a Cabinet submission was expressed in a form that could be agreed if Cabinet chose to adopt the recommendation made. The information contained in the submission will include the information necessary for Cabinet to debate and decide what is proposed. Because of the information contained within them, and because of the way in which recommendations are expressed, Cabinet submissions ordinarily reveal the actual deliberations of Cabinet. 70 Where a formal approval or decision is not required, a “Cabinet note” provides information for noting by Cabinet. A Cabinet note may be used to provide an update to Cabinet about significant strategic issues or projects of interest or concern. 71 Ms Green gave examples of situations where Cabinet submissions and Cabinet notes contained information or attached documents which were needed before a properly informed discussion could be held or a decision could be made. She said that documents presented to Cabinet as attachments to Cabinet submissions or Cabinet notes contained information which revealed the deliberations of Cabinet. They were, she said, treated as Cabinet documents. 72 Ms Green explained that, from time to time, Cabinet may make a request that work be undertaken to support the deliberations made by Cabinet on a particular issue. -- 16 of 86 -- [2024] SASCA 130 Livesey P and David JA 13 73 After Cabinet considered a Cabinet submission or a Cabinet note, a record was made of the outcome. This may include noting, approval, deferral or amendments made to the recommendations provided. The outcome was typically handwritten on the physical copy of the Cabinet submission with a stamp and signature of the Chair of Cabinet, usually the Premier. 74 Ms Green explained that Cabinet and Cabinet Committee agendas, decisions (representing the formal record of Cabinet’s decisions) and the attachments to Cabinet’s submissions and notes are all considered to be Cabinet documents. After Cabinet documents are considered, the documents are kept in a secure environment by the Minister, or the agency of the Minister who caused the Cabinet submission or the Cabinet note to be prepared. 75 In addition, the Cabinet Office kept copies of each final Cabinet submission or Cabinet note in a secure electronic storage facility. 76 In addition to the Cabinet documents described, Ms Green explained that Cabinet Ministers are provided with information and briefings on various items which take a variety of forms. These usually assisted Ministers to formulate views and they informed the representations they make to, as well as their participation in, Cabinet discussions and deliberations in Cabinet and Cabinet Committees. Various Ministerial agencies worked closely with their Ministers to prepare the requisite Cabinet documents. Ms Green explained that this process can result in correspondence and documents which reveal the options, strategies and timing of deliberations made and decisions taken by Cabinet and Cabinet Committees. 77 A highly sensitive Cabinet submission may be “locked”, by which circulation is tightly restricted and the item may not be named in the Cabinet agenda or in the decision set. This may be done at the request of the Minister submitting the particular Cabinet submission. If a Cabinet submission and associated documents were “locked”, they were only visible to the Cabinet Office and the offices of Ministers within the database. 78 Ms Green explained that the importance of maintaining the confidentiality of Cabinet documents was reflected in legislation such as the Freedom of Information Act 1991 (SA), together with government policies including Premier and Cabinet Circulars. 79 In the event of a change in Government, Ms Green explained that once the Governor issued the writs for a State election, all Cabinet documents were removed from the custody of each Minister and placed in the custody of the Department. Ministers of the incoming Government were not, by convention, permitted access to the Cabinet papers of the outgoing Government or, indeed, any previous Government of a different political persuasion. These conventions were intended to maintain the confidentiality of Cabinet deliberations. -- 17 of 86 -- [2024] SASCA 130 Livesey P and David JA 14 The documents the subject of the Builder’s application 80 In connection with the Builder’s application, Ms Green said that the nRAH was, at the time, the largest infrastructure project ever undertaken by the South Australian Government, and the first public-private partnership of its kind in this State. 81 Given the size of the investment and the significance of the project to the State, a range of matters required Cabinet’s authority and direction. These included Cabinet approvals in respect of the thresholds within the Treasurer’s Instruction 8, “Financial Authorisations”, prepared under the Public Finance and Audit Act 1987 (SA). Ms Green also explained that, as part of this oversight, Cabinet received a range of documents including business cases, independent reviews and assurance reports. 82 Ms Green said that she had reviewed a schedule prepared by the solicitors for the State. She said that she was given copies of all of the documents identified in the schedule and over which the State maintained a claim for public interest immunity. With the assistance of public servants within the Cabinet Office, Ms Green said that she had considered each claim for public interest immunity which was the subject of challenge by the Builder. Each document was reviewed (including the redacted portions of any document) together with related Cabinet and Cabinet Committee documents. 83 The information in the documents the subject of the claim of public interest immunity was cross-checked against relevant Cabinet and Cabinet Committee documents. Whether there was a link, and its nature, between these and Cabinet deliberations was identified. 84 Ms Green deposed that she then personally reviewed all of the relevant documents and verified the nature of the link or connection between the documents the subject of challenge and Cabinet documents, decisions, deliberations or discussions.12 85 Ms Green deposed that these Cabinet documents were considered by Cabinet or a Cabinet Committee between 2010 and 2017. She said that all but two of the Cabinet submissions were “locked”. 86 Ms Green gave evidence that it was her opinion that the information subject to the public interest immunity claims fell into three sub-categories: Category A1: Documents that were Cabinet documents (whether in final or draft form or were an attachment or which repeated the content contained within a Cabinet document). Category A2: Documents revealing Cabinet decisions, deliberations or discussions. 12 Affidavit of Robyn Sonya Green sworn 8 December 2023, paragraph 35. -- 18 of 86 -- [2024] SASCA 130 Livesey P and David JA 15 Category A3: Documents which related to the preparation of Cabinet documents, and which would reveal the content of Cabinet documents. 87 Ms Green explained that, in addition, she prepared a confidential affidavit, to be tendered on an ex parte basis, and not made available to the Builder. She requested that this affidavit not be disclosed nor discussed in open Court. 88 Ms Green deposed to the outcome of her review of the documents in each sub-category. 89 In relation to the documents in sub-category A1, she said that, in each instance, the documents or redacted portions, comprised final or draft versions of Cabinet Submissions and Cabinet Notes, including enclosures and attachments. She explained that the documents or the redacted portions repeated the content of what was contained in a Cabinet document. Ms Green said that the enclosures and attachments included reports, business cases and independent reviews prepared by external consultants for consideration by Cabinet. 90 In relation to sub-category A2, Ms Green said that in each instance the documents or redacted portions revealed Cabinet decisions, deliberations or discussions. She further sub-categorised the documents within category A2 as follows: 1. speech notes for the Minister for Health for presentation at a Cabinet Submission to the Budget Review Cabinet Committee; 2. packs and minutes of meetings of the EPAS Programme Board which contained references to Cabinet decisions, deliberations or discussions; 3. briefing notes to the Chief Executive of Health and the EPAS Programme Board which contained references to Cabinet decisions, deliberations or discussions; and 4. packs and minutes of meetings of the nRAH Project Steering Committee which contained references to Cabinet decisions, deliberations or discussions. 91 In relation to the documents within sub-category A3, Ms Green said that each document on its face either contained discussion relating to the preparation of Cabinet documents or would reveal the content of Cabinet documents. She further sub-categorised those documents as follows: 1. packs and minutes of meetings of the EPAS Programme Board which either contained excerpts from Cabinet documents or which referred to budgetary considerations in relation to the roll out and delivery of EPAS submitted in preparation of Cabinet documents; -- 19 of 86 -- [2024] SASCA 130 Livesey P and David JA 16 2. EPAS Programme status reports prepared for the EPAS Programme Board which all contained a direct quote from a Cabinet document; 3. packs and minutes of meetings of the nRAH Project Steering Committee, all of which disclosed the content or nature of Cabinet documents, including the content of draft Cabinet submissions; 4. briefing notes to the Chief Executive of Health, the EPAS Board and the nRAH Project Steering Committee which contained references to Cabinet documents or a discussion of materials used in the preparation of Cabinet documents; 5. some Cabinet documents in their own right, which additionally disclosed material related to the preparation of Cabinet documents; and 6. emails or email chains which disclosed the content of a Cabinet document, Cabinet submission or Cabinet agenda. 92 Ms Green then identified the Ministers from the current Cabinet who were also Cabinet Ministers when relevant decisions were made. In order, these were: 1. The Hon Tom Koutsantonis MP; 2. The Hon Geoff Brock MP; 3. The Hon Zoe Bettison MP; 4. The Hon Susan Close MP; 5. The Hon Stephen Mulligan MP; 6. The Hon Kyam Maher MP; 7. The Hon Peter Malinauskas MP; 8. The Hon Katrine Hildyard MP; and 9. The Hon Chris Picton MP. 93 Ms Green summarised her view regarding the disclosure of the documents within sub-categories A1, A2 and A3 in a general way as follows:13 Disclosure of the documents described as categories A1-A3 above would be at odds with the public interest to encourage frank and robust discussion about matters of public policy by members of Cabinet. Such disclosure would place at risk the willingness of Ministers to engage in free and open discussion in Cabinet if details about the subject matter of their discussions may be made publicly available. Such disclosure would also undermine Cabinet’s ability to receive frank and candid advice on policy decisions from those 13 Affidavit of Robyn Sonya Green sworn 8 December 2023, [47]. -- 20 of 86 -- [2024] SASCA 130 Livesey P and David JA 17 involved in providing information and advice for consideration by Cabinet as those advisors may be inhibited in the expression of their views by the knowledge that those views may be open to disclosure. 94 In consequence, Ms Green expressed the view that revealing these documents would breach the confidentiality of the Cabinet process which would have a deleterious “flow-on effect” where current and future Ministers may be concerned that what they have written may not remain confidential. Ms Green explained that, in her view, this would impact on the willingness of Ministers to engage in free and open discussion and put at risk robust government processes in South Australia. 95 In a supplementary affidavit dated 18 December 2023, Ms Green explained that, following a review of five further documents, she formed the view that they fell within sub-categories A2 (documents that would reveal Cabinet decisions, deliberations or discussions) and A3 (documents which related to the preparation of Cabinet documents and which would reveal the content of Cabinet documents). 96 In order to do this, Ms Green reviewed Cabinet records as well as the five documents in order to understand the connection between the challenged documents and Cabinet records. Ms Green said she had prepared a further confidential affidavit which, again, she asked be tendered on an ex parte basis but not made available to the Builder. She submitted that this affidavit, like the earlier confidential affidavit, should not be disclosed nor discussed in open court. 97 Ms Green expressed conclusions similar to those earlier outlined regarding the claim made for public interest immunity and the risks, as she saw them, associated with the disclosure of these documents. 98 Ms Green was not cross-examined on her affidavits. The decision of the primary judge 99 After outlining the broad nature of the dispute between the Builder and the State, the primary judge articulated his understanding of the objections underlying each of the sub-categories relied on by the State:14 The claim for category A1 and A2 documents is that, if the documents were disclosed, they would reveal that some or all of the information they contain was the subject of a Cabinet decision, deliberation, or discussion. By corollary, categories A1 and A2 do not include documents which were prepared for a purpose other than for submission to Cabinet, but which were attached to, or accompanied, Cabinet documents, unless their disclosure would show that they were put before Cabinet. In respect of category A3 preparatory documents, the objection is that production of the document, or the redacted part thereof, would reveal that the information it contains was provided to Cabinet. 14 Reasons, [47]-[49]. -- 21 of 86 -- [2024] SASCA 130 Livesey P and David JA 18 The State’s position is, therefore, that it has not withheld from production documents which were prepared, or received, for the Steering Committee’s project management role merely because they also happen to have been provided to Cabinet in the discharge of its Cabinet advisory role. Objection to the production of documents is only made if, by that production, the information provided to Cabinet for its deliberations would be revealed. 100 The primary judge then addressed the leading authorities, particularly Alister v The Queen.15 The primary judge accepted that the document descriptions demonstrated that they were not minutes of Cabinet deliberations, as was the primary focus in Commonwealth v Northern Land Council.16 The primary judge then said that he determined the State’s claims on the basis that the documents, or parts of them, were put before Cabinet for its deliberations on budgetary decisions and directions which it would give or refrain from giving to the nRAH Project Steering Committee on how it should manage the nRAH.17 101 The State did not defend this broad statement, contending that it was only made by reference to particular documents. Indeed, this broad statement is not consistent with the analysis his Honour made of particular documents, later in his reasons. Nonetheless, when the reasons are viewed as a whole it is clear that the primary judge took the view that, to varying degrees, the documents the subject of the disputed immunity claims were properly to be regarded as within the scope of public interest immunity as Cabinet documents. 102 The primary judge then went on to explain that the determination he made required a balancing of the public interest in the due administration of justice against the degree of protection against disclosure which “that class of documents, which comprises the subject matter of Cabinet deliberation, demands”.18 His Honour explicitly acknowledged that the required degree of protection would vary, depending on the nature of the matters considered, as well as whether they were “of current or only historical importance”.19 103 The primary judge cited the decision of Debelle J in Adelaide Brighton Cement v South Australia:20 Discovery and production of documents is part of the adversarial process with the goal of ensuring fairness between the parties in the resolution of their dispute: per Toohey J in Commonwealth v Northern Land Council at 635. The principles relating to public interest immunity stem from the fact that there is another public interest which must also be recognised. Thus, the court is charged with the task of weighing the two competing public interests. A party cannot truly know whether a document supports his case until he has 15 Alister v The Queen (1984) 154 CLR 404, 414-415 (Gibbs CJ); Legal Services Commission v Trotter (1990) 54 SASR 74, 84-85 (Cox J); Commonwealth v Northern Land Council (1993) 176 CLR 604 and Adelaide Brighton Cement v South Australia (1999) 75 SASR 209, 212-214 (Debelle J). 16 Reasons, [55]; Commonwealth v Northern Land Council (1993) 176 CLR 604, 617-618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 17 Reasons, [55]. 18 Reasons, [56]. 19 Reasons, [56]. 20 Adelaide Brighton Cement v South Australia (1999) 75 SASR 209, 215-216 (Debelle J). The underlining was added by the primary judge. -- 22 of 86 -- [2024] SASCA 130 Livesey P and David JA 19 seen it. If documents had been discovered it is difficult to see why the parties seeking to have the documents produced for inspection should have to discharge any further test before the court will order inspection. As La Forest J said in Carey v The Queen (1986) 35 DLR 4 at 192: “What troubles me about this approach is that it puts on a plaintiff the burden of proving how the documents, which are admittedly relevant, can be of assistance. How can he do that? He has never seen them; they are confidential and so unavailable. To some extent, then, what the documents contain must be a matter of speculation. But they deal with precisely the subject matter of the action and what one party was doing in relation to the relevant transactions at the time.” For these reasons, I respectfully agree with Toohey J at 635 that, once documents appear in a list of documents, concerns as to relevance may be put to one side and it is hard to see why there should be a further threshold onus on the parties seeking production. As Cox J said in Legal Services Commission v Trotter, “Not all of Justice’s balancing exercises are best carried out blindfolded”. For those reasons, I do not think there is any test beyond relevance to be satisfied. Relevance is established by inclusion of a document in a list of documents. The Court will then inspect the documents for the purpose of weighing the competing public interests. 104 Having held that the Builder had laid a sufficient foundation to require him to undertake a balancing of the public interest in Cabinet confidentiality and the public interest in the due administration of justice, the primary judge explained why he regarded the approach of Debelle J in the underlined passages (above) as wrong.21 However, I respectfully do not accept the principle stated in the last two underlined passages just cited. They seem to me to go further than any earlier authority in respect of civil proceedings. A judge exercises a discretion over whether or not to inspect the documents having regard to the likelihood that their contents will materially assist the party seeking production. I have not found it necessary to inspect the documents in respect of the challenges to the public interest immunity claim made over the first tranches of discovery because of descriptions of the nature of the documents in the open and confidential affidavits makes it clear that they properly fall within the classes of public interest immunity claimed by the State. Furthermore, the summaries of the controversies which are the subject-matter of the arbitration provided by the parties has allowed me to form a clear view based on the dates and descriptions of the documents in the open and closed affidavits that the administration of justice would not be materially compromised by withholding production. 105 Accordingly, the primary judge disagreed with the proposition that the mere discovery of a document required the Court to inspect it for the purposes of determining a claim for public interest immunity. 106 The primary judge then undertook an analysis of the claims by reference to each of the sub-categories of documents, focussing on the dates and descriptions of the documents given in the “open and closed affidavits”. In so doing, his Honour drew a distinction between relevance and the materiality of the documents. As to the latter, the primary judge emphasised that it was necessary to evaluate the 21 Reasons, [66]. -- 23 of 86 -- [2024] SASCA 130 Livesey P and David JA 20 materiality of the documents to the just determination of the controversies referred for arbitration, particularly having regard to their probative weight.22 In relation to certain documents, the primary judge accepted that they were unlikely to disclose the views of individual Cabinet Ministers but:23 Nonetheless, Cabinet confidentiality serves other important public purposes.24 It allows Ministers, senior public servants, and third-party consultants to provide advice and make decisions unburdened by any anxiety over unfair of retrospective criticism of their positions. The advice to government might be expressed cautiously or boldly depending on the professional evaluation of the public servant. Changes in the structure of the public service have reduced the tenure of senior public servants and therefore the confidence with which they can give strong advice. In that context, Cabinet confidentiality makes an important contribution to the encouragement of frank advice. 107 The primary judge then reviewed each document or group of documents in issue, explaining why he upheld the State’s claims. The Builder pressed no real criticism of or challenge to any of the particular findings made as part of this very extensive “weighing exercise” undertaken by the judge.25 108 In relation to the various documents or groups of documents considered, it is clear that the primary judge weighed, for example, the “usefulness of information” disclosed in the document for the purposes of the Builder’s case in the arbitration, against the importance of protecting Cabinet confidentiality.26 109 For example, in relation to documents 12A and 15A, the primary judge reasoned in favour of the immunity claims in the following way, drawing on the descriptions given of the documents, as well as what was not redacted:27 Document 12A Document 12A is described as ‘unconfirmed minutes’. I infer from what is not redacted that it concerns discussions at a meeting between senior public servants, including Mr Swan, Ms Richter, the Deputy Chief Executive of Health (System Performance), and Mr Phillips, the Chief Medical Officer. The subject of the discussion was the desirability of seeking additional funding through Cabinet for EPAS in order to address a risk arising from having internet access at bedside computers. Category A2 and A3 objections are taken on the face of the unredacted passages. The redacted parts of the documents are likely therefore to refer to Cabinet deliberations on funding. I am satisfied on the basis of the confidential affidavit of Ms Green that the document is properly the subjects of public interest immunity. The usefulness of information of that kind to [the Builder] in the arbitration can only be marginal at best for the reasons given at [77] above. Yet the importance of protecting Cabinet confidentiality in its stewardship of projects of this nature is high. 22 Reasons, [76]. 23 Reasons, [79]. 24 See, e.g., Spencer v Commonwealth [2012] FCA 637, [11]-[16] (Emmett J). 25 Reasons, [67]-[115]. 26 Reasons, [85]. 27 Reasons, [84]-[89]. -- 24 of 86 -- [2024] SASCA 130 Livesey P and David JA 21 The balance of considerations lies against disclosure. I uphold the State’s public interest immunity claims. Document 15A Document 15A is described as a ‘Steering Committee Agenda and Papers’. It is partly redacted on the ground of a category A1 objection. The papers relate to a Steering Committee meeting held on 22 August 2013. I am satisfied on the basis of the confidential affidavit of Ms Green of 18 December 2023 that the redacted information is from a report which is properly the subject of a claim of public interest immunity. I am also satisfied on the basis of the confidential affidavit of Ms Green, deposing to certain directions given by Cabinet in respect of that document, that the report was procured for the purposes of submission to the Cabinet. Document 15A is the report of a third-party provider, the subject matter of which is project governance and is for that reason unlikely to materially assist [the Builder] on any of the issues in dispute. I am, therefore, satisfied, given the nature and content of the report disclosed in the confidential affidavits, that it is extremely unlikely to assist in the prosecution of its claim in the arbitration. I am also satisfied, on the basis of oral submissions made on that document in a closed court, that the redactions would not materially add to information available to the applicant in the already discovered and produced documents. I uphold the State’s public interest immunity claim. 110 These extracts are, it should be emphasised, merely illustrative of the extensive weighing exercise undertaken in this case. 111 As an “Epilogue”, the primary judge then reviewed a handful of further documents which were the subject of public interest immunity and parliamentary privilege claims. The documents the subject of claims for immunity were prepared between February 2015 and April 2016.28 112 Based on another confidential affidavit of Ms Green, the primary judge was satisfied that the documents the subject of the claim for immunity were prepared for submission to a Cabinet sub-committee.29 Four were prepared for the purpose of deliberation and possible decision by Cabinet.30 113 The primary judge inspected these documents because he thought that they may be relevant to the controversies referred to arbitration, and because their temporal proximity to the issues and their titles suggested that they may materially assist the Builder’s claims.31 Following inspection, the primary judge made the following findings in favour of the immunity claims:32 I find that the information in the documents was provided for the purpose of assisting Cabinet to make important strategic and policy decisions in respect of the construction of 28 Reasons, [117]. 29 Reasons, [119]. 30 Reasons, [119]. 31 Reasons, [120]. 32 Reasons, [121]. -- 25 of 86 -- [2024] SASCA 130 Livesey P and David JA 22 the nRAH in the context of the commercial dispute with [the Builder] and Celsus. The subject-matter of Cabinet’s consideration was the centrepiece of the South Australian hospital system, and at issue was the expenditure of substantial public moneys and resources. The critical importance to the State required its highest organ of executive government to be able to make the decisions in the best interests thereof as it perceived them to be without concern about personal criticism which the decision might attract if the documents were disclosed. On the other hand, I have formed the view that the information does not materially advance [the Builder’s] case beyond that which would be apparent from the overt actions of the State taken through the largely discoverable documents of the Steering Committee. 114 In the result, the primary judge upheld the claims by the State concerning public interest immunity and parliamentary privilege. 115 Whilst no specific challenge was made to the findings concerning the documents which were inspected, these documents remain the subject of dispute by the Builder because it is contended that the judge erred in upholding all of the public interest immunity claims. The Builder’s grounds of appeal 116 By its notice of appeal dated 18 April 2024, the Builder relied on three, inter-related grounds of appeal: 1. The learned judge erred in upholding the claims of public interest immunity. 2. The learned judge erred in failing to inspect the documents the subject of claims of public interest immunity (save in respect of items 1C to 9C). 3. The learned judge erred in assessing the claims of public interest immunity on the basis that the claims of public interest immunity contained the content of documents put before Cabinet for its deliberations (at Reasons [55]), whereas the categories of documents over which claims were made in Categories A1 to A3 were not so confined (at Reasons [46]). 117 The Builder addressed appeal grounds 1 and 3 together, and then appeal ground 2 concerning inspection. The determination of appeal grounds 1 and 3 – the first stage 118 When the disclosure or admission of a document is opposed on public interest grounds, what is in issue is regarded as an immunity rather than a privilege. Whilst similar considerations may be relevant,33 there are important differences between public interest immunity and legal professional privilege. These include the 33 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48, [15] (Owen and Steytler JJ). -- 26 of 86 -- [2024] SASCA 130 Livesey P and David JA 23 different purposes served by each,34 and that an objection on the ground of public interest immunity cannot be waived by the Crown or anyone else.35 119 In South Australia, public interest immunity is determined according to the common law, though the same approach is generally applied in jurisdictions where the uniform Evidence Acts operate.36 The principles governing public interest immunity were addressed by the High Court in Sankey v Whitlam,37 and in Commonwealth v Northern Land Council.38 120 Generally, the rule is that the production of a document, even if relevant and otherwise admissible, will not be ordered where to do so would be injurious to the public interest. The court has the power to prevent the disclosure of a document where production would be contrary to the public interest even if no Minister or other government official claims that production should be withheld.39 Where there is evidence from a responsible representative of the government that there is a public interest which would be jeopardised by disclosure, the court must give that evidence weight.40 Having said that, there are a number of cases where the affidavit evidence has been criticised as being too general or as failing to identify the relevant public interest with precision.41 There was no cross-examination in this case, but it has been said that it would be a very rare case where the court would permit cross-examination or countervailing evidence.42 In some cases, it may be necessary for the court to call for further evidence before finally ruling.43 The immunity claim does not arise “as an element in the lis between the parties” and any evidence is not tendered as “evidence in the lis”.44 34 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, [9], [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 35 Young v Quin (1985) 4 FCR 483, 486 (Bowen CJ), citing Rogers v Home Secretary [1973] AC 388, 407 (Lord Simon of Glaisdale); cf A v Hayden (No 2) (1984) 59 ALJR 81, 10-11 (Gibbs CJ). 36 See, for example, Chief Commissioner of Police (Vic) v Crupi (2024) 98 ALJR 1131, [15] (Gageler CJ, Edelman and Beech-Jones JJ) regarding s 130 of the Evidence Act 2008 (Vic). See also New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [41]-[43] (Allsop P, with whom Hodgson JA and Sackville AJA agreed); Ku-ring-gai Council v West (2017) 95 NSWLR 1, [76]-[88] (Basten JA) 37 Sankey v Whitlam (1978) 142 CLR 1, confirmed in Alister v The Queen (1984) 154 CLR 404. 38 Commonwealth v Northern Land Council (1993) 176 CLR 604. 39 Sankey v Whitlam (1978) 142 CLR 1, 14 (Gibbs ACJ); Young v Quin (1985) 4 FCR 483, 485 (Bowen CJ); Zarro v Australian Securities Commission (1992) 36 FCR 40, 46 (Lockhart J), 60 (Gummow J); Conway v Rimmer [1968] AC 910, 950 (Lord Reid). Cf Robinson v South Australia [1931] AC 704, 721 (Lord Blanesburgh). 40 Spencer v Commonwealth (2012) 206 FCR 309, [30]-[32] (Keane CJ, Dowsett and Jagot JJ), citing New South Wales v Ryan (1998) 101 LGERA 246, 250-251 (Burchett, Hill and Madgwick JJ) and Sankey v Whitlam (1978) 142 CLR 1, 44 (Gibbs ACJ), 59-60 (Stephen J), 96 (Mason J). 41 Robinson v South Australia (No 2) [1931] AC 704 (PC); Zarro v Australian Securities Commission (1992) 36 FCR 40; New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60. 42 Young v Quin (1985) 4 FCR 483, 486 (Bowen CJ), 488 (Sheppard J) “not usually permitted”, 493-495 (Beaumont J). 43 Young v Quin (1985) 4 FCR 483, 484 (Bowen CJ); Zarro v Australian Securities Commission (1992) 36 FCR 40, 61 (Gummow J); Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, 681 (Hunt CJ at CL). 44 Zarro v Australian Securities Commission (1992) 36 FCR 40, 61 (Gummow J), considering Young v Quin (1985) 4 FCR 483, 485-486 (Bowen CJ). -- 27 of 86 -- [2024] SASCA 130 Livesey P and David JA 24 121 The same principles and approach have been applied to oral evidence.45 122 The general rule does not apply where the court forms the opinion that the public interest in the due administration of justice outweighs the public interest giving rise to the claim for immunity.46 123 No claim for immunity is absolute,47 though there are recognised cases where a prima facie case for upholding the claim may readily be shown. The evaluation of the particular public interest raised by the immunity claim will often be assisted by the identification of a recognised category, such as national security,48 other kinds of high policy or state secrets,49 the deliberations of Cabinet,50 criminal informants,51 and ongoing investigations.52 There are others.53 These categories are not closed:54 As the range of issues which engage the attention of the Executive Government is infinite and as the manner in which those issues are considered varies from case to case, it is impossible to lay down hard and fast rules which will provide universal answers. Each case here, as elsewhere, depends upon its own circumstances and it is only by a consideration of them that a correct balance will be reached. 124 Determining an immunity claim requires identification of the particular public interest raised, as well as whether the claim is concerned with the particular contents of documents, or with documents of a particular class.55 The classification into “contents” and “class” claims has often been used, though it is “rough and imprecise”56 and not “watertight”.57 Moreover, “As to class claims, the view now accepted is that there is … a heavy burden of proof on any authority which makes 45 Young v Quin (1985) 4 FCR 483, 485 (Bowen CJ), citing Sankey v Whitlam (1978) 142 CLR 1, 38. Zarro v Australian Securities Commission (1992) 36 FCR 40, 60-61 (Gummow J). 46 Alister v The Queen (1984) 154 CLR 404, 412 (Gibbs CJ); Zarro v Australian Securities Commission (1992) 36 FCR 40, 45. 47 Sankey v Whitlam (1978) 142 CLR 1, 43 (Gibbs ACJ), 63-64 (Stephen J), 98-99 (Mason J); Commonwealth v Northern Land Council (1993) 176 CLR 604, 616-618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). Or “conclusive”, Zarro v Australian Securities Commission (1992) 36 FCR 40, 45-46 (Lockhart J). 48 Duncan v Cammell, Laird & Co Ltd [1942] AC 624 (submarine plans); Alister v The Queen (1984) 154 CLR 404. 49 Zarro v Australian Securities Commission (1992) 36 FCR 40, 60 (Gummow J); New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [52] (Allsop P, with whom Hodgson JA and Sackville AJA agreed). 50 Spencer v Commonwealth (2012) 206 FCR 309; Ku-ring-gai Council v West (2017) 95 NSWLR 1. 51 Chief Commissioner of Police (Vic) v Crupi (2024) 98 ALJR 1131; Cain v Glass (No 2) (1985) 3 NSWLR 230, 248 (McHugh JA); Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667. 52 Young v Quin (1985) 4 FCR 483; Zarro v Australian Securities Commission (1992) 36 FCR 40, 46 (Lockhart J). 53 In Central Adelaide Local Health Network Inc v Whitehouse [2024] SASCA 22, this Court addressed “statutory public interest immunity” under s 67E of the Evidence Act 1929 (SA) concerning the communications relating to an alleged victim of a sexual offence in a “therapeutic context”. 54 Sankey v Whitlam (1978) 142 CLR 1, 99 (Mason J). 55 Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980] AC 1090, 1111 (Lord Wilberforce). 56 Commonwealth v Northern Land Council (1993) 176 CLR 604, 617 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 57 Ku-ring-gai Council v West (2017) 95 NSWLR 1, [79] (Basten JA). -- 28 of 86 -- [2024] SASCA 130 Livesey P and David JA 25 such a claim”.58 There will usually be no call for inspection where the claim is not based on the contents of the documents.59 Where a “class” claim rather than a “contents” claim is in issue, public interest immunity claims may therefore be upheld without addressing what the documents contain because the law recognises that they fall within a class which it is in the public interest should be immune from disclosure.60 125 Once the court has determined that there is a prima facie case of immunity, it will then be necessary to evaluate or balance the competing public interests.61 This usually “lies at the heart of any contested application”.62 This second stage was explained in the following way in Alister v The Queen:63 Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. 126 It is necessary for a judge to give adequate reasons when undertaking the balancing exercise associated with determining a claim for public interest immunity.64 The determination of an appeal against a claim of public interest immunity does not involve an appeal against a discretionary decision and is determined according to the standard of correctness.65 58 Zarro v Australian Securities Commission (1992) 36 FCR 40, 59-60 (Gummow J). 59 Ku-ring-gai Council v West (2017) 95 NSWLR 1, [79] (Basten JA). 60 Sankey v Whitlam (1978) 142 CLR 1, 39 (Gibbs ACJ); Commonwealth v Northern Land Council (1993) 176 CLR 604, 617 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 61 Alister v The Queen (1984) 154 CLR 404, 412 (Gibbs CJ); New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [42] (Allsop P, with whom Hodgson JA and Sackville AJA agreed). 62 New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [46] (Allsop P, with whom Hodgson JA and Sackville AJA agreed). 63 Alister v The Queen (1984) 154 CLR 404, 412 (Gibbs CJ); Adelaide Brighton Cement v South Australia (1999) 75 SASR 209, 214-216 [9] (Debelle J). 64 Chief Commissioner of Police (Vic) v Crupi (2024) 98 ALJR 1131, [19]-[23] (Gageler CJ, Edelman and Beech-Jones JJ). 65 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, [15] (Kiefel CJ, Gageler and Jagot JJ), [95]-[96] (Steward J) and [161]-[162] (Gleeson J). See New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [15] (Allsop P, with whom Hodgson JA and Sackville AJA agreed); citing Victoria v Brazel (2008) 19 VR 553, [38]-[43] and Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227, [11]-[21], but cf New South Wales Commissioner of Police v Nationwide News Pty Ltd (2007) 70 NSWLR 643 at 646, [26]. See also Spencer v Commonwealth (2012) 206 FCR 309, [4]-[5] (Keane CJ, Dowsett and Jagot JJ), citing Police Federation of Australia v Nixon (2011) 198 FCR 267, [82] (Lander, -- 29 of 86 -- [2024] SASCA 130 Livesey P and David JA 26 127 The Builder’s approach to appeal grounds 1 and 3 was largely confined to what were said to be the limitations in the evidence of Ms Green, together with challenging the three sub-categories she articulated. These shortcomings could not be resolved, it was contended, without inspection by the primary judge. Inspection will be explicitly addressed later under appeal ground 2. 128 In this way, the Builder challenged only certain aspects of the “first stage” of the process for determining a public interest immunity claim. The Builder did not mount any substantial challenge to the “second stage”, the weighing or “balancing exercise” by which the public interest in refusing disclosure is evaluated in order to determine whether it outweighs the public interest in permitting disclosure. 129 The Builder’s challenge to the evidence of Ms Green was confined to a handful of issues. For example, the Builder maintained that the evidence of Ms Green was deficient because she was not head of the Cabinet Office at the relevant time, nor was she party to the creation of any of the documents. It was also suggested that her approach was merely “mechanical” in the sense that she had only compared the contents of the disputed documents with what was before Cabinet. 130 The Builder’s criticisms of Ms Green’s evidence should be rejected. 131 Whilst Ms Green may not have been head of the Cabinet Office at the relevant time, she was well-placed to speak to the practices of Cabinet. What was in issue was the outcome of a review of the documents, a process in which she participated. Her review of the documents enabled her to be satisfied about the nature of the connection between the documents the subject of challenge and Cabinet deliberations or discussions and communications.66 In addition, whilst the process undertaken under her oversight might be described as “mechanical”, it has not been shown that it failed to accurately identify documents within each of the three categories she outlined. 132 None of this was seriously challenged by the Builder. In particular, Ms Green’s evidence about what it was that the disputed documents might tend to reveal about Cabinet deliberations and communications was not attacked, nor was the primary judge’s reliance on that evidence. 133 Accordingly, it is necessary to next address the Builder’s case regarding the three “classes” or categories for which immunity from production was claimed. 134 Cabinet documents are well-recognised as a discrete category or class of documents which may be made the subject of public interest immunity claims regardless of the contents of particular documents. In the course of determining whether Cabinet documents and papers concerned with policy decisions made at Gilmour and Gordon JJ). That may be contrasted with a decision as to whether to inspect, addressed later in these reasons. 66 Affidavit of Robyn Sonya Green sworn 8 December 2023, paragraph 35. -- 30 of 86 -- [2024] SASCA 130 Livesey P and David JA 27 “a high level” were entitled to protection from disclosure, in Sankey v Whitlam Gibbs ACJ explained the need for freedom and candour in connection with the proper working of government:67 One reason that is traditionally given for the protection of documents of this class is that proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them. … in some matters at least communications between Ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure. … Of course, the object of the protection is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal. 135 In that case, a former Prime Minister and three former Ministers were charged with unlawful conspiracy to borrow a large sum of money, and the documents which were ordered to be produced were not Cabinet documents, let alone documents disclosing Cabinet deliberations. In Whitlam v Australian Consolidated Press Ltd, Blackburn CJ was presented with a number of interrogatories which sought to question what was said in meetings of Executive Council and in Cabinet. In addressing the principle of collective Cabinet responsibility, Blackburn CJ explained:68 With no pretensions to qualification as a political theorist, I believe I can propound that aspect of the principle in words which are sufficient for the present purpose. Cabinet is a group of persons who have in common certain political aims. It has to make decisions which must command support in Parliament and, it is hoped, will command substantial support in the electorate. The common political aims are necessarily broad; in their particular applications they may be the subject of disagreement among members of Cabinet. Each member of Cabinet has a personal responsibility to his conscience and also a responsibility to the Government. Discussion and persuasion may abolish the disagreement, or they may merely reduce it, or leave it unaltered. If any disagreement remains there must nevertheless be a decision, but it will be one which some members like less than others. Both practical politics, and good Government, require that those who like it less must still publicly support it. If such support is too great a strain on a Minister’s conscience, he can resign. So the price of the acceptance of Cabinet office is the assumption of the liability to support Cabinet decision. The burden of that liability is shared by all, and supported by the convention that every member is entitled to insist that whatever his own contribution was to the making of the decision, whether favourable or unfavourable, every other member will keep it secret. The maintenance of the rule of the secrecy of individual contributions to discussion, and votes, in Cabinet, provides a 67 Sankey v Whitlam (1978) 142 CLR 1, 40 (Gibbs ACJ). 68 Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, 421-422 (Blackburn CJ). -- 31 of 86 -- [2024] SASCA 130 Livesey P and David JA 28 guarantee of the most favourable conditions possible for the utmost frankness in the expression of views. To reveal the view, or vote, of a member of Cabinet, expressed or given in Cabinet, is not only to disappoint an expectation on which that member was entitled to rely, but also to reduce the security of the continuing guarantee, and above all, to undermine the principle of joint responsibility. Joint responsibility supersedes individual responsibility; in accepting responsibility for the joint decision, each member is entitled to the assurance that he will be held responsible only for that, and only as one member of the whole Cabinet which made it; and that he will not be held responsible for any different view which he may have expressed. 136 Chief Justice Blackburn went on to hold that this principle formed part of the machinery of the government of Australia. Cabinet secrecy was, his Honour explained, “an essential part of the structure of government which centuries of political experience have created”.69 137 In that case, Blackburn CJ held that the public interest in maintaining Cabinet secrecy easily outweighed the contrary public interest in ensuring that the defendant have proper facilities for conducting its case. This conclusion rested principally on “the enormous importance of Cabinet secrecy by comparison with the private rights of an individual”.70 138 When a claim for immunity is upheld, it operates for two inter-related purposes. The first concerns the protection of the principle of collective Cabinet responsibility. That includes the need for a single decision to be made by the Cabinet, whether unanimously or by majority and, once it has been made, that all members of Cabinet be bound by it. This necessitates the maintenance of confidentiality regarding the expression of differences of opinion before a decision has been made.71 This principle recognises and promotes frank and free debate between Cabinet Ministers in connection with Cabinet decision-making.72 139 The second purpose is to protect the candour of Ministerial advice so as to facilitate fully informed debate which enhances both individual and collective decision-making.73 Though it has been questioned whether the discouragement of candour on the part of public officials is a sufficient or valid basis for immunity, the prevailing view is that collective responsibility could not survive in practical terms unless Cabinet deliberations were kept confidential.74 69 Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, 422 (Blackburn CJ). 70 Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, 424 (Blackburn CJ). 71 Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31, [24]-[27] (Black CJ, Tamberlin and Sundberg JJ). 72 Commonwealth v Northern Land Council (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). See, to similar effect, Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, 422-423 (Blackburn CJ). 73 Sankey v Whitlam (1978) 142 CLR 1, 40 (Gibbs ACJ); Commonwealth v Northern Land Council (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 74 Commonwealth v Northern Land Council (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). But see the observation in Legal Services Commission v Trotter (1990) 54 SASR 74, 83 (Cox J with whom King CJ agreed) regarding the reference to this as an “old fallacy” in Rogers v Home Secretary [1973] AC 388, 413 (Lord Salmon). -- 32 of 86 -- [2024] SASCA 130 Livesey P and David JA 29 140 The term “Cabinet document” is recognised as one that is “not free from ambiguity”.75 The overarching consideration is usually whether the disclosure of documents such as these might tend to disclose confidential Cabinet deliberations or communications. That is, whether the party claiming immunity has established the documents’ “connection with the processes of Cabinet”,76 or that the documents are “so closely connected with the processes of Cabinet that they are entitled to immunity”.77 Another way of looking at the same issue is to consider whether the documents go to “the proper functioning of government of the polities of the Federation”.78 141 The first and most obvious example of Cabinet documents comprises those which record “the internal deliberations of the Cabinet” or a Cabinet committee,79 as well as “cabinet decisions and cabinet papers”.80 These include documents “which record the actual deliberations of Cabinet or a committee of Cabinet”,81 such as Cabinet and Cabinet committee agendas and minutes. These have been regarded as having a “pre-eminent claim to confidentiality”:82 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. 142 Second, Cabinet documents have also been recognised as extending to documents prepared outside Cabinet but provided to Cabinet, such as “reports or submissions” and attachments.83 That is, the documents submitted to Cabinet,84 75 Re Timor Sea Oil & Gas Australia Pty Ltd (in liq) (2020) 389 ALR 545, [16] (Leeming JA). 76 Re Timor Sea Oil & Gas Australia Pty Ltd (in liq) (2020) 389 ALR 545, [16] (Leeming JA). 77 Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2) [2001] VSC 249, [26] (Byrne J). 78 New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [44] (Allsop P, with whom Hodgson JA and Sackville AJA agreed). 79 Egan v Chadwick (1999) 46 NSWLR 563, 576 [69] (Spigelman CJ); Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31, [26]-[27], [42] (Black CJ, Tamberlin and Sundberg JJ). 80 Sankey v Whitlam (1978) 142 CLR 1, 96 (Mason J). 81 Commonwealth v Northern Land Council (1993) 176 CLR 604, 614 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 82 Commonwealth v Northern Land Council (1993) 176 CLR 604, 618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 83 Commonwealth v Northern Land Council (1993) 176 CLR 604, 614 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 84 Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31, [29] (Black CJ, Tamberlin and Sundberg JJ); Ku-ring-gai Council v West (2017) 95 NSWLR 1, [80] (Basten JA). -- 33 of 86 -- [2024] SASCA 130 Livesey P and David JA 30 because the inference usually drawn is that where a document was submitted to Cabinet, the content of the document was the subject of Cabinet’s consideration.85 Usually, though not invariably, these will be documents prepared for submission to Cabinet. 143 Third, documents may be treated as Cabinet documents where, though they were not prepared by Cabinet, nor submitted to Cabinet or a Cabinet committee, they tend to reveal Cabinet deliberations or communications, whether directly or indirectly.86 144 This third example includes documents identical in relevant respects to those considered by Cabinet, as well as the precursor documents to those submitted to Cabinet,87 including draft submissions,88 copies of documents,89 and minutes for the consideration of Cabinet:90 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. 145 The third example also includes documents brought into existence within governmental departments and instrumentalities for consideration in formulating a submission to Cabinet,91 and communications passing between a Minister and the head of the Minister’s department, or between heads of departments relating to Cabinet proceedings and material prepared for Cabinet, as well as documents relating to the framing of government policy at a high level.92 146 The protection of documents which directly or indirectly disclose the deliberations of Cabinet is defended on the basis that disclosure is inconsistent with the principles of responsible government.93 That is, they are so closely connected with the processes of Cabinet that they are entitled to immunity from 85 New South Wales v Ryan (1998) 101 LGERA 246, 252 (Burchett, Hill and Madgwick JJ). 86 Egan v Chadwick (1999) 46 NSWLR 563, 576 [69]-[70] (Spigelman CJ); Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31, [26]-[27], [42]-[45] (Black CJ, Tamberlin and Sundberg JJ); Spencer v Commonwealth (2012) 206 FCR 309, [42]-[43] (Keane CJ, Dowsett and Jagot JJ). 87 Spencer v Commonwealth (2012) 206 FCR 309, [32] (Keane CJ, Dowsett and Jagot JJ). 88 Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2) [2001] VSC 249, [31]-[32] (Byrne J). 89 Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31, [39] (Black CJ, Tamberlin and Sundberg JJ). 90 New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [50] (Allsop P, with whom Hodgson JA and Sackville AJA agreed), citing Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31, [42]-[45] (Black CJ, Tamberlin and Sundberg JJ); Egan v Chadwick (1999) 46 NSWLR 563, [69] (Spigelman CJ) and J D Heydon, Cross on Evidence (LexisNexis Butterworths, 8th Australian ed, 2010) at p 961 [27065]. 91 Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650, 653 (Menzies J). 92 New South Wales v Ryan (1998) 101 LGERA 246, 250-251 (Burchett, Hill and Madgwick JJ); Adelaide Brighton Cement v South Australia (1999) 75 SASR 209, 214 [8] (Debelle J); Spencer v Commonwealth (2012) 206 FCR 309, [30]-[32] (Keane CJ, Dowsett and Jagot JJ). 93 Egan v Chadwick (1999) 46 NSWLR 563, 576 [70]-[71] (Spigelman CJ). -- 34 of 86 -- [2024] SASCA 130 Livesey P and David JA 31 production. Nonetheless, the immunity may here be “less compelling” than in the case of documents which actually record Cabinet deliberations.94 That consideration may require that the weighing exercise take account of the strength of the immunity claim, balanced against the apparent importance of the documents to the litigation. 147 The breadth of the class of documents that may be regarded as Cabinet documents, even if they are not records of Cabinet deliberations, was recognised by the Full Court of the Federal Court in Spencer v Commonwealth:95 … True it is that documents recording deliberations of Cabinet have “a pre-eminent claim to confidentiality”. But other documents including “papers brought into existence for the purpose of preparing a submission to Cabinet” and “documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for Cabinet” are recognised classes prima facie entitled to protection on the grounds of public interest immunity. And as New South Wales v Ryan makes clear, the question in respect of both classes is “whether the relevance of the material to the proceedings in which disclosure is sought is sufficient … to justify disclosure”. 148 In Spencer v Commonwealth, the evidence addressed, and the Full Court recognised, four categories of documents which it was accepted may be the subject of a proper claim for public interest immunity. These were:96 Category 1: documents submitted to and considered by Cabinet, including documents that are both identical in all relevant respects to those considered by Cabinet, and precursors of documents submitted to Cabinet; Category 2: documents that reveal the decision and/or deliberations of Cabinet; Category 3: documents prepared by the Department of the Prime Minister and Cabinet to brief the Prime Minister for the chairing of Cabinet meetings; and Category 4: documents brought into existence for the purpose of preparing a submission to Cabinet. 149 These categories may be compared with those utilised by the State in this case, as revealed by the affidavits of Ms Green. It will be recalled that she categorised the documents in issue in the following way: Category A1: Documents that were Cabinet documents (whether in final or draft form, or were an attachment or which repeated the content contained within a Cabinet document). Category A2: Documents revealing Cabinet decisions, deliberations or discussions. Category A3: Documents which related to the preparation of Cabinet documents, and which would reveal the content of Cabinet documents. 94 Commonwealth of Australia v Arcadia Holdings Pty Ltd, an unreported decision of the Full Court of the Supreme Court of Western Australia delivered 16 May 1997 at pages 5-6 (Ipp J). 95 Spencer v Commonwealth (2012) 206 FCR 309, [32] (Keane CJ, Dowsett and Jagot JJ). 96 Spencer v Commonwealth (2012) 206 FCR 309, [42] (Keane CJ, Dowsett and Jagot JJ). -- 35 of 86 -- [2024] SASCA 130 Livesey P and David JA 32 150 It is difficult to see any basis for finding that these Categories do not accord with the recognised parameters of what may be considered “Cabinet documents” and thereby prima facie the proper subject of claims of public interest immunity. 151 Returning to the three examples of Cabinet documents earlier given, the first broadly corresponds with Category A1 documents, the second corresponds with Category A3 documents (and Category A1 document drafts) and the third example corresponds with Category A2 documents (and Category A3 preparatory documents that reveal the content of Cabinet documents). 152 In some respects, these categories overlap. It may be difficult to draw bright lines. For example, under Category A1, documents which in final or draft form were before Cabinet, or which were an attachment, or which repeated the content of a Cabinet document, may overlap with Category A2 documents because they may reveal Cabinet decisions, deliberations or communications. Moreover, in so far as Category A1 refers to draft Cabinet documents, that necessarily overlaps with Category A3 for drafts relate to the preparation of Cabinet documents and may, in the event, reveal the content of Cabinet documents and thereby Cabinet deliberations. 153 The purpose for which a document was bought into existence may, like legal professional privilege, be relevant when determining whether it is subject to public interest immunity. Unlike legal professional privilege, however, whether a document is covered by public interest immunity is not necessarily determined by ascertaining the purpose for which it was brought into existence.97 To the extent that the Builder submitted otherwise, that submission should be rejected.98 The immunity cannot be conflated with the privilege, for each is distinct and each meets different policies and objectives. In the case of the immunity claims in this case, the critical issue remains whether the disclosure of the document might tend to disclose confidential Cabinet deliberations or communications. A document may have that effect regardless whether it was prepared for submission to Cabinet. 154 There are authorities which draw a distinction between Cabinet documents which address matters of State or Government policy, and those which merely concern the commercial interests of the State, suggesting that any immunity claim is weaker in the case of documents concerned purely with the State’s commercial interests. 155 For example, in Robinson v South Australia (No 2), the State was a defendant in an action for negligence where damages were claimed for wheat damaged whilst under the compulsory control of the State under the Wheat Harvest Acts 97 Cf Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 512 (Brennan CJ). 98 Referring to Neilson v Laugharne [1981] QB 736, 752F-G where Oliver LJ had asked “whether the production of these documents is likely to impede the carrying out of the public statutory purpose for which they are brought into existence”. See also Borg v Barnes (1987) 10 NSWLR 734 (Carruthers J); Legal Services Commission v Trotter (1990) 54 SASR 74 (Legoe J). -- 36 of 86 -- [2024] SASCA 130 Livesey P and David JA 33 1915-1917.99 Under an order for discovery, the State produced an affidavit by a civil servant claiming privilege over nearly 2,000 documents, which were said to be State documents. A minute by the responsible Minister was exhibited in which he asserted in broad terms that disclosure was contrary to the interests of the State. The minute was in terms identical to a minute from a different Minister in an earlier case. Earlier cases concerning the same wheat scheme had foundered, despite favourable rulings to the effect that the State was carrying on the business of marketing and selling wheat and that it could, in consequence, be held liable in negligence at the suit of the wheat owners or their assignees. It had been held that the State was required to make discovery.100 These earlier cases had been discontinued because the plaintiffs could not establish the necessary facts in the face of the State’s blanket claims for immunity, which had been upheld by a majority of the High Court despite the belief that what was withheld included “the documents vital to the establishment of the case”.101 156 In Robinson v South Australia (No 2), it was not suggested by the Privy Council that the “trading, commercial or contractual activities of a State can never be claimed to be protected”.102 However, “some plain overruling principle of public interest” must be disclosed, and not merely that the documents might prejudice the Crown or assist the other side in the litigation.103 The scope for the court to inspect and inquire was emphasised,104 before the Board concluded that the Minister’s minute was “entirely inadequate” and that the documents should be inspected by a judge before the trial.105 157 More recently, in New South Wales v Public Transport Ticketing Corporation, Allsop P explained that there may be a difference between the “commercial or contractual responsibilities of government” and “questions of policy”:106 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 99 Robinson v South Australia (No 2) [1931] AC 704 (PC). 100 Welden v Smith [1924] AC 484 (PC); Griffin v South Australia (1924) 35 CLR 200; Robinson v South Australia [1929] AC 469 (PC). 101 Robinson v South Australia (No 2) [1931] AC 704 (PC), 712 (Lord Blanesburgh); Griffin v South Australia (1925) 36 CLR 378. 102 Robinson v South Australia (No 2) [1931] AC 704 (PC), 715 (Lord Blanesburgh). 103 Robinson v South Australia (No 2) [1931] AC 704 (PC), 715 (Lord Blanesburgh). 104 Confirming the approach taken in Marconi’s Wireless Telegraph Co Ltd v Commonwealth (No 2) (1913) 16 CLR 178 (Griffiths CJ); Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd [1916] 1 KB 822 (Swinfen Eady LJ with whom Bankes LJ agreed). 105 Robinson v South Australia (No 2) [1931] AC 704 (PC), 723-724 (Lord Blanesburgh), effectively endorsing the dissent of Starke J in Griffin v South Australia (1925) 36 CLR 378, 402. 106 New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [55] (Allsop P, with whom Hodgson JA and Sackville AJA agreed). -- 37 of 86 -- [2024] SASCA 130 Livesey P and David JA 34 commercial dispute in which it finds itself.107 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. 158 The relevance of “policy” was informed by his Honour’s view of the relevant considerations addressed by the High Court in Commonwealth v Northern Land Council.108 And, though it was not appropriate to take one line or one idea from the discussion by the High Court,109 the relevant considerations included “policy”, and this was a “broad concept”:110 … 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.111 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. 159 In addition, Allsop P recognised that there are “circumstances where commercial decision-making and policy can intersect”.112 The claims of immunity made concerning the records of Cabinet deliberations and most of the documents disclosing the substance of submissions to a Cabinet budget committee were upheld in that case.113 160 Whilst the protection is not absolute even in the case of Cabinet documents, and in Conway v Rimmer Lord Reid recognised that Cabinet minutes and the like 107 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]. 108 Commonwealth v Northern Land Council (1993) 176 CLR 604, 615-618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 109 New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [44] (Allsop P, with whom Hodgson JA and Sackville AJA agreed). 110 New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [52]-[53] (Allsop P, with whom Hodgson JA and Sackville AJA agreed). 111 See the Full Court in Commonwealth v Northern Land Council (1991) 30 FCR 1, 38; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080, [16] (Wilcox J); Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66, [34] (Jagot J); and RP Data v Western Australian Land Information Authority [2010] FCA 922; 188 FCR 378, [23] (Barker J). 112 New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [55] (Allsop P, with whom Hodgson JA and Sackville AJA agreed). 113 New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [60]-[79] (Allsop P, with whom Hodgson JA and Sackville AJA agreed). -- 38 of 86 -- [2024] SASCA 130 Livesey P and David JA 35 may be disclosed where they have become merely of historical interest, it was not suggested that in the circumstances of this case the documents were merely of historical interest.114 161 Given the way each of Ms Green’s Categories have been framed, it has not been demonstrated that they fall outside the proper scope of what may be regarded as Cabinet documents merely because they might only indirectly reveal the deliberations of Cabinet.115 What is common to each Category identified by Ms Green is the premise that the disputed documents tend to reveal Cabinet decisions, deliberations or communications, where the claim is strongest in the case of Category A1 documents, even where the documents are those of a Cabinet committee. 162 Because of the pivotal role of the nRAH Project Steering Committee, it is not surprising that the documents it generated or considered on behalf of Cabinet might tend to reveal Cabinet decisions, deliberations or communications. This case tends to demonstrate how the commercial interests of the State may intersect with matters of State policy; on the evidence, the unprecedented size of the nRAH (at that time) and the significant financial outlays in contemplation with this major project required that Cabinet maintain a very close oversight of its progress to completion. Considerations such as these demonstrated the strength of the immunity claims whilst also demonstrating the difficulties faced by the Builder in overcoming those claims which, it will be recalled, were based on the immunity of the documents as a class. As the primary judge demonstrated, the Builder could not show that these documents were other than relevant, rather than material, still less critical, to the determination of the disputes referred for arbitration. 163 Indeed, in so far as the Builder asserted that mere “updates” to Cabinet or a Cabinet committee could not be the subject of claims for immunity, that assertion is without support in the authorities and must be rejected. The usual purpose of an update is to keep a decision-maker informed. Regardless whether a communication can be characterised as an “update”, in this context it usually represents a confidential communication with Cabinet, intended to keep Cabinet apprised of the progress of an issue or project such as the nRAH. It is not hard to see how it, together with other documents and information, might furnish the basis upon which Cabinet may deliberate and decide issues arising for its consideration and why these same documents were merely relevant rather than material or critical to the resolution of the arbitrated disputes. 164 In summary, there is no warrant for disregarding the evidence of Ms Green concerning the Categories A1, A2 and A3, or for declining to act on that evidence for the purposes of evaluating the “first stage” of the claims for public interest immunity. That evidence demonstrated that the categories identified did not go 114 Conway v Rimmer [1968] AC 910 (Lord Reid); Legal Services Commission v Trotter (1990) 54 SASR 74, 82-83 (Cox J with whom King CJ agreed). But see Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, 422-423 (Blackburn CJ). 115 Egan v Chadwick (1999) 46 NSWLR 563, 576 (Spigelman CJ). -- 39 of 86 -- [2024] SASCA 130 Livesey P and David JA 36 beyond the proper bounds of the immunity recognised by the authorities. That included but was not limited to particular documents supplied to Cabinet, even if they were not prepared for that purpose, at least where their disclosure may tend to reveal Cabinet decisions, deliberations or communications. 165 On the evidence of Ms Green, there is no basis for a finding that any documents which were not prepared for the purpose of submission to Cabinet, or which do not reveal Cabinet deliberations or communications, have inappropriately been made the subject of claims of public interest immunity. For example, there is no basis to find that the original or earlier version of something put to Cabinet has been made the subject of an immunity claim where its disclosure would not reveal what was put to Cabinet or considered by Cabinet. 166 As no real attempt was made by the Builder to challenge the “second stage” of the claims of public interest immunity, or to otherwise demonstrate that there was any reason to question the weighing exercise undertaken by the primary judge in connection with any particular documents or groups of documents in this case, appeal grounds 1 and 3 should be dismissed. The determination of appeal ground 2 – inspection 167 When disclosure is objected to on the grounds of public interest immunity, the court has a broad power to inspect the documents the subject of dispute to assist the evaluation as to whether the asserted public interest in non-disclosure must yield to the public interest in the due administration of justice calling for disclosure. 168 The power of the court to inspect the documents which are the subject of claims of public interest immunity has usually been described as a discretion. Any appeal as to whether the court should or should not inspect documents subject to claims of public interest immunity will be determined according to whether there is error of a kind recognised in House v The King.116 That must be contrasted with the exercise involved in weighing the competing public interests for and against disclosure. That evaluative process does not involve the exercise of a discretion.117 169 Whether any threshold test must be satisfied before the court will inspect disputed documents has been the subject of some debate.118 170 As has been seen, inspection was addressed by the Privy Council in Robinson v South Australia (No 2), where it was decided that the court should inspect where 116 House v The King (1936) 55 CLR 499. 117 Police Federation of Australia v Nixon (2011) 198 FCR 267, [82] (Lander, Gilmour and Gordon JJ); Spencer v Commonwealth (2012) 206 FCR 309, [4]-[5] (Keane CJ, Dowsett and Jagot JJ). See also GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, [15] (Kiefel CJ, Gageler and Jagot JJ), [95]-[96] (Steward J) and [161]-[162] (Gleeson J). 118 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48, [19] (Owen and Steytler JJ). -- 40 of 86 -- [2024] SASCA 130 Livesey P and David JA 37 there were doubts about the claim given the failure of the Minister’s minute to address the public interests at stake in that case.119 171 The High Court has maintained the existence of a broad discretion as to whether the court should inspect documents. In Sankey v Whitlam, Gibbs ACJ held that the Court had the power to inspect documents once it had decided “that on balance the document should probably be produced”.120 However, where the Minister, being represented, does not suggest that there is anything in the contents of a document that ought to be withheld from production, there will not always be the same need to examine the document before ordering its production if the “class” objection is overruled.121 172 In Commonwealth v Northern Land Council, the High Court explained that where the documents fall into a “class” recognised as usually protected by public interest immunity, the documents need not be inspected “as a matter of course”, even though the classification of documents into classes may be thought “rough and imprecise”:122 To inspect the contents of documents as a matter of course would be to disregard the basis of the immunity for a document falling within the class described. The apparent dilemma is, we think, to be resolved by recognising that the classification of claims for immunity into “class” claims and “contents” claims is indeed often rough and imprecise. In many so called “class” cases a court may find it necessary to consider a document, inspecting it if necessary, in order to determine whether it does in truth fall into a class which attracts immunity. The contents of the document may have a bearing on that question as may the topic with which it deals, particularly if it is no longer current or controversial. Where, however, a document clearly falls within a class which attracts immunity, a different approach is called for. Documents recording Cabinet deliberations upon current or controversial matters, such as the records in question in this case, are an example. 173 In dissent, Toohey J rejected the proposition that there was any threshold test beyond relevance:123 … once the existence and relevance of documents has been demonstrated … the party seeking production has ordinarily done enough to establish that access to the documents is necessary and therefore to require the court to take the further step of balancing the competing public interests. It is necessary to add the qualifying term “ordinarily” because the party from whom production is sought may demonstrate that the documents are of such “high level governmental public interest”, to use the language of Lord Wilberforce in Burmah Oil Co v Bank of England,124 that the public interest immunity should prevail without any examination of the documents. 119 Robinson v South Australia (No 2) [1931] AC 704 (PC), 723-725 (Lord Blanesburgh). 120 Sankey v Whitlam (1978) 142 CLR 1, 46 (Gibbs ACJ). 121 Sankey v Whitlam (1978) 142 CLR 1, 46 (Gibbs ACJ). 122 Commonwealth v Northern Land Council (1993) 176 CLR 604, 617 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 123 Commonwealth v Northern Land Council (1993) 176 CLR 604, 635-636 (Toohey J). 124 Burmah Oil Co v Bank of England [1980] AC 1113. -- 41 of 86 -- [2024] SASCA 130 Livesey P and David JA 38 174 The decision in Commonwealth v Northern Land Council was concerned with whether the trial judge had erred in ordering inspection. The majority held that the trial judge should not have ordered inspection, whereas Toohey J held that there was no error associated with the decision to inspect. Accordingly it was, at the least, problematic in Adelaide Brighton Cement v South Australia for Debelle J to have relied on the minority view of Toohey J in support of the proposition that, once relevance is established, the court should inspect documents for the purpose of weighing the competing public interests. 175 Subsequent intermediate appellate authority has generally favoured the view that there is no threshold test save relevance, though inspection is not undertaken as a matter of course. Inspection will be taken by the court in the exercise of its broad discretion whenever it is thought that this may be helpful to the determination of the immunity claim, whether the determination is in favour of or against the claim. As Cox J acknowledged in Legal Services Commission v Trotter:125 “Not all of Justice’s balancing exercises are best carried out blindfolded.” However, in cases where immunity is claimed by reference to a relevant “class” of documents, inspection may not usually be necessary. In some cases, it may be necessary where the basis for the claim is uncertain. In yet others, inspection may be necessary where the court is seriously contemplating production. 176 For example, in Young v Quin, the breadth of the processes open to the court when deciding an immunity claim was emphasised, including the power to inspect. Bowen CJ expressed the view that inspection should only be undertaken where the court decides that the documents probably ought to be produced.126 177 In Zarro v Australian Securities Commission, the Full Court of the Federal Court rejected the proposition that inspection should be undertaken only if there appeared to be a good claim for public interest immunity.127 The primary judge had inspected the documents after a number of attempts had been made to put on satisfactory affidavit evidence. In upholding the determination made by the judge, the Full Court did not find it necessary to inspect. The Court relied on the broad nature of the Court’s discretion and its undoubted ability to determine the course it should take in the circumstances of the particular case.128 In Attorney-General (NSW) v Stuart, the issue was production rather than inspection, but the New South Wales Court of Criminal Appeal expressed the view that fishing expeditions should be discouraged and the party seeking production should first demonstrate that it had a legitimate forensic purpose or need for the document.129 178 In CTC Resources NL v Australian Stock Exchange Ltd, the Western Australian Court of Appeal referred to the approach of Debelle J in Adelaide 125 Legal Services Commission v Trotter (1990) 54 SASR 74, 85 (Cox J, with whom King CJ agreed). 126 Young v Quin (1985) 4 FCR 483, 484 (Bowen CJ). 127 Zarro v Australian Securities Commission (1992) 36 FCR 40, 44, 49-50 (Lockhart J), 55-57 (Ryan J). 128 Zarro v Australian Securities Commission (1992) 36 FCR 40, 61, 66-67 (Gummow J). 129 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, 681, 684 (Hunt CJ at CL). -- 42 of 86 -- [2024] SASCA 130 Livesey P and David JA 39 Brighton Cement v South Australia, particularly his Honour’s view that the only threshold test to be applied was that the documents be relevant.130 The Court acknowledged that in Middleton v Western Australia, Steytler J (with whom Murray and Anderson JJ had agreed) accepted that there was no threshold test over and above relevance before the Court’s jurisdiction to inspect was enlivened.131 179 The Court of Appeal was nonetheless not prepared to follow the approach of Debelle J in Adelaide Brighton Cement v South Australia that, once relevance was established, “the Court should without more inspect the documents for the purpose of weighing the competing public interests”.132 As the Court of Appeal explained:133 … we are not at all sure that we would go to the extent advocated by Debelle J in Adelaide Brighton Cement in saying that once relevance is established “the court should without more inspect the documents for the purpose of weighing the competing public interests”. We say this for a number of reasons. First, as was pointed out in Northern Land Council (FCt) (at 37), whatever else may be said about the more recent English authorities, the observation that before inspecting documents a judge must have some concrete ground for belief which takes the case beyond a mere fishing expedition applies in this country. It is trite to say that mere relevance does not necessarily render a document admissible. It may yet fall within one or more of the exclusionary rules. Enough may be known about the document and the circumstances to show that it could only be of peripheral relevance and that the policy underlying the public interest immunity is so powerful that the balancing exercise must inevitably be decided in favour of [the] latter. In such a case, inspection would be pointless. Secondly, so much depends on the rules of court, which vary from jurisdiction to jurisdiction. Alister was, as we have already said, a criminal case. Legal Services Commission v Trotter and Adelaide Brighton Cement arose in South Australia, where the relevant rules do not contain a provision similar to O 26, r 12(1). Nor, so far as we have been able to ascertain, do the New Zealand rules, which would have governed the application in Fletcher Timber Ltd v Attorney-General, and nor do the Federal Court Rules (O 15). Finally, this approach does not give sufficient weight to the pronouncement of Gibbs ACJ in Sankey (at 46) that “once a court has decided, notwithstanding the opposition of a Minister, that on balance the document should probably be produced” private inspection may occur. 180 Justices Owen and Steytler held that the criteria for the exercise of the jurisdiction to carry out a private inspection, and the balancing exercise to determine which of the competing public interests should prevail, were related. They expressed the view that, in Western Australia, the discretion to carry out a private inspection of documents in the course of an application for production “is of the broadest kind”.134 They concluded that, before the discretion to inspect was enlivened, the Court must first be satisfied that the documents are relevant to the matters in issue but, beyond that, it was neither necessary nor desirable to define any further threshold test:135 130 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48 [26] (Owen and Steytler JJ). 131 Middleton v Western Australia (1996) 17 WAR 201. 132 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48, [28]. 133 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48, [28] (Owen and Steytler JJ). 134 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48, [30]. 135 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48, [30]. -- 43 of 86 -- [2024] SASCA 130 Livesey P and David JA 40 However, in exercising the discretion the judicial officer must not lose sight of the fact that the power to inspect exists for the purpose of deciding whether the claim of privilege is “unfounded or mistaken”. In a case where the documents are prima facie in the compulsory disclosure but are relevant to matters in issue in the litigation the Court must go on to conduct the balancing exercise described in the authorities. The discretion, while a broad one, must be exercised judicially. There should be something in the circumstances of the caser which excites the attention of the Court to the view that the process of determining the challenge to the immunity claim will be aided by inspection. 181 The Builder’s case gains no support from Medical Board of South Australia v Fisher,136 or the earlier decisions of the Full Court in Casley-Smith v District Council of Stirling,137 and Legal Services Commission v Trotter.138 Whether the court should inspect documents was not argued in those cases and they seem to have been concerned with “contents” claims rather than “class” claims. The reference made in Medical Board of South Australia v Fisher to an “obligation to inspect” based only on the relevance of the documents, as distinct from all of the circumstances of the case before the court, did not form part of the ratio decidendi of the Full Court’s decision and is not binding on this Court.139 182 Rather, the better view is that the decision to inspect involves the court exercising a broad discretion where a number of considerations may be material. The relevant considerations include, but are not confined to, whether the documents clearly come within a “class” usually recognised as protected by public interest immunity, the apparent strength of the immunity claims or whether there is reason to question them, and the extent to which they appear to be material and of apparent probative weight rather than merely relevant to the issues in dispute. The key consideration will usually be whether the court has a basis for thinking that inspection may be helpful to the determination of the claims made for public interest immunity. 183 The preferable view was expressed by this Court in Rankine v South Australia, where it was held that the power to inspect will not be exercised as “a matter of course” in the case of Cabinet documents:140 The Court will not exercise the power to inspect as a matter of course, at least in relation to documents within a class that is often recognised as immune from disclosure, such as documents recording cabinet deliberations. 184 Nonetheless, there may be a greater preparedness to inspect disputed documents in criminal cases, at least where it appears “on the cards” that the documents will materially assist the defence of a person whose liberty is at stake.141 By contrast, in civil cases, as the Full Court explained in Spencer v Commonwealth, once it is determined that there appears to be a valid 136 Medical Board of South Australia v Fisher (2000) 76 SASR 242. 137 Casley-Smith v District Council of Stirling (1989) 51 SASR 447. 138 Legal Services Commission v Trotter (1990) 54 SASR 74. 139 Medical Board of South Australia v Fisher (2000) 76 SASR 242, [56] (Duggan, Nyland and Bleby JJ). 140 Rankine v South Australia [2022] SASCA 18, [17] (Livesey P, Lovell and Doyle JJA). 141 Alister v The Queen (1984) 154 CLR 404, 414-415 (Gibbs CJ). -- 44 of 86 -- [2024] SASCA 130 Livesey P and David JA 41 claim of public interest immunity based on cogent evidence, and no apparent basis for concluding that there is a “sufficient demand of justice” calling for disclosure, “there will be no warrant for inspection … the prima facie position of protection from disclosure will prevail”.142 185 In this case the primary judge inspected only a handful of documents, explaining that he did so because of their “temporal proximity” to the issues arising in the ACICA Arbitrations, and because the subject-matter conveyed by their titles suggested that they may contain information which “would materially assist the prosecution of [the Builder’s] claims”.143 186 The primary judge did not find it necessary to inspect any of the other disputed documents given the cogency of the evidence offered in support of the claims of public interest immunity concerning the three Categories before him.144 187 The Builder’s case on inspection ultimately depended on the approach taken by Debelle J in Adelaide Brighton Cement v South Australia and the fact that some earlier Full Courts had tended to inspect disputed documents. With all respect, the approach taken in the High Court must be followed, and the approaches taken in CTC Resources NL v Australian Stock Exchange Ltd,145 Spencer v Commonwealth,146 and Rankine v South Australia147 are to be preferred. 188 A finding of relevance concerning a document the subject of what appears to be a good claim of public interest immunity does not, without more, require the court to inspect in order to weigh the competing public interests for and against disclosure. The broad discretion is not constrained in that way. 189 The Builder has not established that the primary judge acted on a wrong principle, gave weight to irrelevant considerations, or failed to consider relevant considerations. The decisions made by the primary judge concerning inspection fell within the permissible range of decisions open to him, and the exercise of his discretion cannot be said to have been unreasonable or result in an outcome which was plainly unjust. A further issue: should this Court inspect? 190 There is an issue about whether this Court should inspect the documents. Whilst it may be accepted that this Court has a broad, discretionary power to inspect disputed documents on an appeal by way of rehearing, whether inspection is necessary really depends on the matters put into issue on the appeal. Those issues may dictate, or at the least suggest, that the Court of Appeal should inspect for itself or perhaps, in some cases, order remittal, especially if the propriety of the 142 Spencer v Commonwealth (2012) 206 FCR 309, [33] (Keane CJ, Dowsett and Jagot JJ). 143 Reasons, [120]. 144 Reasons, [66]. 145 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48. 146 Spencer v Commonwealth (2012) 206 FCR 309. 147 Rankine v South Australia [2022] SASCA 18. -- 45 of 86 -- [2024] SASCA 130 Livesey P and David JA 42 claim of public interest immunity and the outcome of the “weighing exercise” are challenged over a large number of documents.148 191 In this case, however, appeal grounds 1 and 2 only challenged the sufficiency of the State’s evidence, together with whether the articulated sub-categories permitted the disputed documents to be regarded as “Cabinet documents”. In addition, under appeal ground 2 the proper approach to inspection as a matter of law was put into issue. It was only in these confined respects that the propriety of the State’s claims was attacked. Those issues have been resolved in this Court by rejecting the Builder’s contentions. In consequence, their resolution does not require that this Court inspect the documents for itself. 192 Appeal ground 2 should be dismissed. A further issue: fresh evidence 193 The Builder applied to lead what it described as fresh evidence which it said revealed that a number of public interest immunity claims had been made without a proper foundation. 194 The Builder’s proposed evidence included various discovered documents which appeared to be identical to those over which immunity claims had been made, but which were not the subject of any redactions. The Builder contended that when the unredacted portions of the documents were considered, it was clear that there was no proper basis for redaction and, in consequence, for the claims of public interest immunity. 195 The argument on this application, primarily conducted in writing, proceeded on the undisputed premise that the discovery of documents, especially the unredacted portions of documents which were the subject of claims of public interest immunity, had been made in error. The parties were invited to address the question whether there was any authority which permitted documents which had been discovered in error to be used in this way. 196 The Builder relied on two authorities. The first was the decision of the Court of Appeal in Burmah Oil Co Ltd v Governor and Co of the Bank of England.149 In that case, the Bank of England claimed public interest immunity over 62 documents. Of those, six were discovered and produced, albeit those parts the subject of the immunity claim were redacted. The redactions were “imperfect [because] some of the words could be read.”150 That disclosure was unintended and confined to the solicitors for Burmah Oil. The solicitors for Burmah Oil made copies for the Court of Appeal to review. The majority (Bridge and Templeman LJJ), and Lord Denning MR (in dissent), each reviewed the six 148 Rankine v South Australia [2022] SASCA 18, [19] (Livesey P, Lovell and Doyle JJA). 149 Burmah Oil Co Ltd v Governor and Co of the Bank of England [1979] 1 WLR 473 (Burmah Oil). See also JM Evans, ‘Civil Litigation – Discovery – Public Interest Immunity and State Papers,’ Canadian Bar Review 52(2) (1990), 373–374. 150 Burmah Oil [1979] 1 WLR 473, 484 (Lord Denning MR), 495 (Templeman LJ). -- 46 of 86 -- [2024] SASCA 130 Livesey P and David JA 43 documents. The majority concluded that the documents matched the Minister’s description and were not of any significant relevance to the claim. The approach of Lord Denning is encapsulated in his observation that “[i]f one side makes a mistake, the other can take advantage of it. No holds are barred.”151 Lord Denning then said:152 After all, as both sides know what these documents contain, why should not the court know? I think it can: for the limited purpose of showing that the privilege is or may be wrongly claimed. 197 Lord Bridge explained his approach, effectively confining the issue to a reason for inspection by the Court:153 [Counsel for Burmah Oil] informed us that he and his junior, having seen the documents, responsibly took the view that a sight of the documents by the court would establish that these documents at all events were not properly within the ambit of the certificate given by the Chief Secretary. Such a submission was sufficient to raise a doubt which made it appropriate for the court to inspect these documents for itself. 198 The decision of the Court of Appeal was upheld in the House of Lords, though without considering the use of the imperfectly redacted documents.154 199 The Court of Appeal’s decision in Burmah Oil does not appear to have received any judicial consideration in Australia. 200 The other authority relied on by the Builder was Gartner v Carter, where Lander J permitted documents the subject of a claim for legal professional privilege – which had been inadvertently produced in circumstances which did not amount to waiver – to be used to challenge the claims for privilege.155 Lander J ruled that the documents were not properly the subject of a claim of privilege in the first place, as they came within the recognised exclusion relating to illegality or iniquity.156 201 The State relied on Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd for the proposition that the approach of the Court of Appeal in Burmah Oil cannot be reconciled with modern case management principles relating to discovery and the inadvertent disclosure of documents.157 The State submitted that the approach of the Court of Appeal in Burmah Oil was also inconsistent with the positive duty placed upon solicitors by the Australian Solicitors’ Conduct Rules to return material which is known or 151 Burmah Oil [1979] 1 WLR 473, 484 (Lord Denning MR). 152 Burmah Oil [1979] 1 WLR 473, 484 (Lord Denning MR), 493 (Bridge LJ), 495 (Templeman LJ). 153 Burmah Oil [1979] 1 WLR 473, 493 (Bridge LJ). 154 Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980] AC 1090, 1117 (Lord Wilberforce), 1122 (Lord Salmon), 1130 (Lord Edmund-Davies), 1136 (Lord Keith), 1147 (Lord Scarman). 155 Gartner v Carter [2004] FCA 258, [33] (Lander J). 156 Gartner v Carter [2004] FCA 258 [37], [38], [48] (Lander J). 157 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 (Expense Reduction), [38]-[45] (French CJ, Kiefel, Bell, Gageler and Keane JJ). -- 47 of 86 -- [2024] SASCA 130 Livesey P and David JA 44 reasonably suspected to be confidential, or where it is known that its disclosure was inadvertent.158 202 As for Gartner v Carter, the State distinguished the case on the ground that public interest immunity is an immunity and not a privilege which can be waived. More importantly, the proposition which was central to the decision of Lander J was that the documents supported allegations of fraud and improper conduct by the party claiming privilege, which demonstrated that the privilege claims ought never to have been made. 203 Whilst the State’s approach to the authorities is to be preferred, it is in this case sufficient to find that the evidence relied on by the Builder is not in any sense fresh evidence and the Builder cannot be permitted to rely on the State’s inadvertent error in disclosing or failing to redact documents over which public interest immunity claims have been upheld. This evidence was always available to the Builder and the parties must be held to the approach they took to the evidence before the primary judge.159 204 Indeed, once the immunity claims are upheld, and absent appealable error otherwise being demonstrated, the documents cannot be used for any purpose.160 The Builder’s application should be dismissed. Confidential affidavits 205 The State relied on a number of confidential affidavits which the primary judge considered. Whilst the Builder took issue with this before the primary judge and in this Court, there was no ground of appeal suggesting that, as a result, the process undertaken by the primary judge miscarried. 206 Rather, this Court was urged not to consider the confidential affidavits because to do so entailed procedural unfairness.161 This submission was not developed at any length and no intermediate appellate authority was cited. 207 Though the Court is usually reluctant to consider material which is not made available to all parties, the procedure adopted was not inappropriate. The confidential affidavits have been considered as part of the material available to the primary judge. To do so is not inconsistent with the responsibility of the Court to determine claims for public interest immunity in a way that does not risk undermining those claims. Obviously, the disclosure of the contents of these confidential affidavits would risk undermining the immunity claims made in this case. 158 Expense Reduction (2013) 250 CLR 303, [65]-[67] (French CJ, Kiefel, Bell, Gageler and Keane JJ). 159 Draoui v Le [2021] SASCA 33, [109]-[111] (Doyle JA, with whom Lovell JA agreed), [129]-[131] (Livesey JA). 160 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, [5] (Gleeson CJ) and [22]-[24] (Gummow, Hayne, Haydon and Kiefel JJ). 161 Cf, Re Timor Sea Oil & Gas Australia Pty Ltd (in liq) (2020) 389 ALR 545 at [19], [25]-[27] (Leeming JA). -- 48 of 86 -- [2024] SASCA 130 Livesey P and David JA 45 208 As this issue was not pressed as an appeal ground, it is not otherwise necessary to rule on the Builder’s submission. Conclusion 209 The Builder’s application to lead fresh evidence should be dismissed, with costs. The Builder’s appeal should be dismissed, with costs. -- 49 of 86 -- [2024] SASCA 130 S Doyle JA 46 210 S DOYLE JA: This is an appeal from a decision dismissing the appellant’s challenge to the respondent’s claims for public interest immunity, or PII, over a number of documents described as ‘Cabinet documents’.162 The documents have been discovered by the respondent in arbitration proceedings concerning the project to design and construct the new Royal Adelaide Hospital in South Australia. 211 The claims relate to approximately 100 documents, referred to as the challenged documents. In the case of some of the challenged documents the claim for PII was over the entire document; however, in many cases the claim was confined to a redacted portion of the document. 212 I have had the advantage of reading a draft of the joint reasons of Livesey P and David JA. I agree that the appeal should be dismissed, but propose to set out my own reasons for dismissing the appeal. 213 In order to limit repetition, I gratefully adopt the summary in the joint reasons of the background to the matters in issue, including the contractual arrangements between the parties, the matters in issue in the arbitration proceedings, the circumstances in which the claims of PII were made, the evidence adduced by the respondent in support of those claims,163 the decision by the primary judge and the matters raised on appeal. I also adopt the defined terms in those reasons. 214 In Grounds 1 and 3 the appellant builder alleges error in the primary judge’s approach to PII in respect of Cabinet documents. In particular, the appellant argues that his Honour erred in holding that all of the documents over which the State claimed PII were appropriately the subject of a claim; it argues that the categories of documents over which PII were claimed inappropriately included some documents which were neither put before Cabinet, nor prepared for the purposes of being put before Cabinet. Ground 2 involves a contention that, in determining the claim for PII, the primary judge erred in failing to inspect the documents the subject of claims for PII.164 215 In addressing these grounds, it is convenient to commence with some general observations about claims for PII over Cabinet documents, and the Court’s power to inspect the documents over which PII is claimed. In so doing, I will review several of the key authorities considering claims for PII over Cabinet documents in the context of commercial disputes. I will then address in some more detail the primary judge’s approach to the claims for PII in the present case before explaining 162 CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v State of South Australia [2024] SASC 46 (Reasons). 163 Particularly the evidence of Ms Green, the Acting Executive Director, Cabinet Office in the Department of the Premier and Cabinet. 164 Other than items 1C to 9C. -- 50 of 86 -- [2024] SASCA 130 S Doyle JA 47 why, in my view, that approach conformed with the approach required by the authorities. 216 For the reasons which follow, I do not consider that any error has been established in the primary judge’s reasons or decision. Public interest immunity in respect of Cabinet documents 217 Speaking generally, a court will withhold disclosure of documents or other information on the ground of PII if it considers that disclosure would be harmful to the public interest, and that this harm would outweigh the harm to the administration of justice that would result from non-disclosure of the documents or information in the proceedings in which they are sought to be used. 218 A claim for PII may be made in respect of a particular document or item of information on the ground that disclosure of its contents would be injurious to the public interest. Alternatively, it may be made in respect of a class of documents or information on the ground that disclosure of that class of documents or information would be injurious to the public interest. The distinction between ‘contents’ claims and ‘class’ claims, whilst rough and sometimes difficult to draw, is accepted and retains some relevance.165 In either case, however, a court faced with a claim for PII must undertake a balancing exercise, weighing the public interest in favour of confidentiality against the public interest in favour of disclosure. In carrying out the balancing exercise, the court may inspect the documents the subject of a claim for PII. 219 It is the duty of the court, not the privilege of the executive government, to determine whether a document may be withheld from disclosure on the ground of PII.166 Cabinet documents 220 In the present case, the claims for PII relate to a class of documents commonly referred to as ‘Cabinet documents’. The rationale for the protection of this class of documents lies in a recognition of the public interest in the confidentiality of Cabinet deliberations by reason of their importance to the proper functioning of Cabinet and, in particular, in ensuring that decision making and policy development by Cabinet is uninhibited. As the majority of the High Court explained in Northern Land Council:167 165 Commonwealth v Northern Land Council (1993) 176 CLR 604 (Northern Land Council) at 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ), observing that the distinction is ‘rough but accepted’, and serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever their contents, from those documents which ought not to be disclosed because of their particular contents. 166 Sankey v Whitlam (1978) 142 CLR 1 (Sankey) at 38 (Gibbs ACJ), 58-59 (Stephen J), 96 (Mason J). 167 Northern Land Council at 615-616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) (citations omitted); see also Sankey at 40 (Gibbs ACJ), and Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414 at 421-422 (Blackburn CJ). -- 51 of 86 -- [2024] SASCA 130 S Doyle JA 48 But it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. … the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential. Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government. Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course. The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to public scrutiny. Whilst there is increasing public insistence upon the concept of open government, we do not think that it has yet been suggested that members of Cabinet would not be severely hampered in the performance of the function expected of them if they had constantly to look over their shoulders at those who would seek to criticize and publicize their participation in discussions in the Cabinet room. It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. The latter may involve the exploration of more than one controversial path even though only one may, despite differing views, prove to be sufficiently acceptable in the end to lead to a decision which all members must then accept and support. 221 Differing formulations of the class of documents referred to as Cabinet documents have been offered in the authorities. However, the categories of documents that have been held to attract this head of public interest in confidentiality include: 1. documents that record the deliberations or decisions of Cabinet, including minutes of Cabinet meetings;168 2. documents provided to Cabinet for its consideration, including submissions and any accompanying or attached documents;169 3. documents which are not themselves ‘Cabinet papers’ within Categories 1 or 2, but which refer to, or otherwise reveal, the nature or content of Cabinet deliberations, decisions or submissions;170 168 Sankey at 39 (Gibbs ACJ); Northern Land Council at 614-615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ); Spencer v Commonwealth (2012) 206 FCR 309 (Spencer) at [32] (Keane CJ, Dowsett and Jagot JJ). 169 Spencer at [42]-[43] (Keane CJ, Dowsett and Jagot JJ); New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 (Public Transport Ticketing) at [50] (Allsop P, Hodgson JA and Sackville AJA agreeing); Ku-ring-gai Council v Garry (2017) 95 NSWLR 1 (Ku-ring-gai Council) at [80] (Basten JA, Macfarlan JA agreeing). 170 Egan v Chadwick (1999) 46 NSWLR 563 (Egan) at [70] (Spigelman CJ, Meagher JA agreeing); Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 (CFMEU) at [42]-[43] (Black CJ, Tamberlin and Sundberg JJ); Spencer at [42]-[43] (Keane CJ, Dowsett and Jagot JJ); Ku-ring-gai at [80] (Basten JA, Macfarlan JA agreeing). -- 52 of 86 -- [2024] SASCA 130 S Doyle JA 49 4. documents brought into existence within government departments and instrumentalities for the purpose of preparing submissions to Cabinet;171 and 5. documents relating to the framing of government policy at a high level, including communications between a Minister and the head of department, or between heads of department, which relate to Cabinet proceedings and material prepared for Cabinet.172 222 The differing formulations of the categories of documents are to some extent a function of the types of documents in issue, and the descriptions adopted by the parties, in the various cases considering claims for PII over Cabinet documents. However, the varying formulations all represent a means of describing the requisite connection with, or proximity to, Cabinet deliberations or processes which, having regard to the rationale for the immunity (namely, to ensure uninhibited decision making and policy development by Cabinet), attract the public interest in favour of confidentiality. 223 Whilst the authorities support a broad view of the class of documents which will attract this public interest, they nevertheless recognise two important and related qualifying propositions. 224 The first is that characterising a document as falling within the class of Cabinet documents does not guarantee that the claim for PII will be upheld. The immunity for this class is not absolute.173 After determining whether the relevant head of public interest has been engaged, it remains necessary to carry out the balancing exercise in order to determine whether the public interest in favour of confidentiality outweighs the public interest in favour of disclosure. 225 The second is that, in carrying out this balancing exercise, the weight to be afforded to the public interest in favour of confidentiality for a particular document will depend upon various matters, including the nature of the document. As the High Court observed in Northern Land Council,174 documents recording the ‘actual deliberations’ of Cabinet will attract the ‘highest degree of protection’, being documents ‘with a pre-eminent claim to confidentiality’. Whilst the balancing exercise remains necessary even in relation to documents falling within this category, the degree of protection against disclosure which is called for will dictate the paramountcy of the claim for immunity in all but ‘quite exceptional circumstances’.175 Other Cabinet documents, with a less direct connection with 171 Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650 at 653 (Menzies J); Sankey at 39 (Gibbs ACJ); Spencer at [32], [42]-[43] (Keane CJ, Dowsett and Jagot JJ). 172 Sankey at 39 (Gibbs ACJ); Spencer at [32], [42]-[43] (Keane CJ, Dowsett and Jagot JJ). 173 Sankey at 43 (Gibbs ACJ), 63-64 (Stephen J) and 98-99 (Mason J); Northern Land Council at 616-618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 174 Northern Land Council at 617-618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 175 Northern Land Council at 619 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). -- 53 of 86 -- [2024] SASCA 130 S Doyle JA 50 Cabinet deliberations or processes, will not generally attract the same degree of protection. 226 When considering the strength of the public interest in favour of the confidentiality of Cabinet deliberations, it is important to remember that the public interest stems from the fact that the document belongs to a particular class of document, rather than the particular contents of the document. However, the authorities suggest that it may nevertheless be appropriate to have regard, at least in a general way, to the subject matter of the document, and the extent to which it concerns matters which are of a policy nature, and remain current or controversial.176 227 Further, when carrying out the balancing exercise, it will be appropriate to have regard to not only the forensic importance of the document in the relevant proceedings, but also the nature of the rights in issue in the proceedings. An interest in defending allegations of serious criminal wrongdoing, for example, may weigh more heavily than an interest in vindicating private rights in civil proceedings.177 228 Several cases have involved close consideration of claims for PII in respect of documents falling within Category 2 above; that is, documents provided to Cabinet for its consideration (often referred to as Cabinet submissions, notes or minutes), including accompanying or attached documents. These documents attract the public interest in favour of confidentiality of Cabinet deliberations not because they reveal the content of actual deliberations or decisions, but because they reveal the matters and information deliberated upon. A similar rationale explains the public interest in the confidentiality of documents falling within Categories 4 and 5 above. 229 Category 3 documents are protected because they reveal the documents or information protected in Categories 1 and 2. As such, the Category 3 protection is ancillary to, and has the same rationale, as the protection afforded to Categories 1 and 2. 230 In some cases, the documents within the categories I have identified will, whether directly or indirectly, reveal the views of particular Ministers, in which case the rationale for their protection is obvious and strong. However, consistently with the description of the rationale in the passage set out above from the majority’s reasons in Northern Land Council, the public interest in the confidentiality of Cabinet documents extends beyond this. It extends to protection of the confidentiality in the matters and information deliberated upon more generally. Were the matters and information deliberated upon by Cabinet not protected by confidentiality, there would be a risk that the potential for publicity and criticism concerning Cabinet’s deliberations might inhibit the decision making 176 Northern Land Council at 618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 177 Northern Land Council at 618-619 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). -- 54 of 86 -- [2024] SASCA 130 S Doyle JA 51 and policy development of Cabinet. It might do so by discouraging those advising members of Cabinet, whether public servants or external consultants, from providing full and frank advice; or it might do so by discouraging members of Cabinet from seeking advice, or from discussing or supporting controversial decisions or policies in an appropriately free and frank manner.178 In short, it may contribute to undesirably defensive advice, decision making and policy development, and thereby inhibit Cabinet’s function in making decisions and developing policy.179 A review of some key authorities 231 The claims for PII in the present case relate to documents, or passages from documents, said to fall within Categories 2, 3 and 4 above. In particular, many of the challenged documents or passages were said to be, or to relate to or reveal, submissions provided to Cabinet, or attachments to those submissions. And those attachments were said to include reports provided by external consultants in relation to various aspects of the nRAH project. Given the matters in issue, it is instructive to review some of the key authorities considering claims for PII over documents of this nature, with a particular focus upon those arising in the context of commercial disputes. 232 Whilst some of these cases involved consideration of the principles governing claims for PII under the Uniform Evidence Acts, it was not suggested in any of these cases that the principles differed in any relevant way from the common law principles. To the contrary, there was generally explicit recognition that there was no relevant difference. 233 In CFMEU, there was a claim for PII over a copy of a letter from a Minister to the Prime Minister containing a proposal for Cabinet, and including some of the views of the Minister. Although the focus was upon a particular copy of the letter, there was evidence that copies had been circulated to other members of Cabinet, and that the original was ultimately placed before Cabinet. The Full Court of the Federal Court (Black CJ, Tamberlin and Sundberg JJ) held that the document attracted the relevant public interest in confidentiality. The document did not record the terms of actual deliberations of a Cabinet meeting, but nevertheless revealed the nature of matters to be considered and deliberated upon, and hence permitted an inference as to what was ‘in all probability’ discussed at the meeting. As such, the rationale for the public interest in confidentiality identified in 178 Sankey at 40 (Gibbs ACJ) (referring to the necessity of confidentiality to ensure ‘complete freedom and candour in stating facts, tendering advice and exchanging views and opinions’); Public Transport Ticketing at [45] (Allsop P) (‘The threat of disclosure may impede or mute free and vigorous exchange in Cabinet’); Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1766 (NSW Ports) at [45] (Wigney J) (referring to confidentiality being ‘necessary to ensure that communications between Ministers at Cabinet meetings can be frank and candid … .The theory is that if Ministers believe that there is a risk that what they say or discuss at Cabinet meetings may later become public, they will not talk freely or frankly’). 179 See, for example, the primary judge’s observations in his Reasons at [79]-[81] (set out in full later in these reasons). -- 55 of 86 -- [2024] SASCA 130 S Doyle JA 52 Northern Land Council was engaged.180 As the content of the letter was not ‘crucial’ to the determination of the issue in the substantive proceedings, and no other ‘exceptional circumstances’ had been identified, the claim for PII was upheld.181 234 In Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2),182 Byrne J was concerned with a claim for PII that had been made in the context of arbitral proceedings. The documents were said to be Cabinet documents, broken into categories comprising (a) documents submitted to Cabinet; (b) records of deliberations of Cabinet; and (c) documents created for the purpose of preparing submissions to Cabinet.183 235 There was no dispute that the category (b) documents were protected by PII.184 236 As for the category (a) documents, submissions and reports prepared for the assistance of Cabinet were protected because they had a ‘tendency to disclose Cabinet deliberations’. They involved an ‘indirect disclosure’ of Cabinet deliberations ‘because it is a fair inference that, where a document is submitted to Cabinet for its consideration, the content of the document was the subject of Cabinet’s consideration’. They attracted protection, despite relating to a tourism project that was no longer a matter of controversy, because they were ‘so closely connected with the processes of Cabinet’.185 237 Category (c) related to preparatory documents which were not placed before Cabinet. On Byrne J’s reasoning, their protection turned upon the closeness of their connection with submissions which were made to Cabinet, and hence their connection with, and capacity to indirectly reveal, the processes of Cabinet.186 Having inspected these documents, his Honour was satisfied that all but two of the documents within this category attracted protection.187 238 In Public Transport Ticketing, the New South Wales Court of Appeal was concerned with a claim for PII over documents grouped into a number of different categories, several of which related to deliberations of a sub-committee of Cabinet, the Budget Cabinet Committee. After explaining the rationale for the public interest in protecting the confidentiality of Cabinet documents by reference to Northern Land Council, Allsop P (Hodgson JA and Sackville AJA agreeing) held that it extended to documents put before Cabinet for its consideration. His Honour said that such documents were ‘in the same position’ as documents that recorded 180 CFMEU at [42]-[43] (Black CJ, Tamberlin and Sundberg JJ). 181 CFMEU at [44] (Black CJ, Tamberlin and Sundberg JJ). 182 Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2) [2001] VSC 249 (Seal Rocks). 183 Each category also included reference to a sub-committee of Cabinet, although it was not suggested that this made any difference to the analysis. 184 Seal Rocks at [21] (Byrne J). 185 Seal Rocks at [26] (Byrne J). 186 Seal Rocks at [33] (Byrne J). 187 Seal Rocks at [34] (Byrne J). -- 56 of 86 -- [2024] SASCA 130 S Doyle JA 53 the deliberations or decisions of Cabinet, with the public interest in their confidentiality ‘ordinarily [to] be given considerable weight in the balancing process’.188 239 Allsop P went on to explain that, in determining the weight to be afforded to the public interest in confidentiality in carrying out the balancing exercise, it was relevant to consider the extent to which the relevant documents related to matters of current or controversial policy, as opposed to matters of a more operational significance. While acknowledging that it was not a ‘hard and fast’ consideration, his Honour suggested that the public interest in the confidentiality of matters of only historical commercial or contractual significance may carry less weight.189 240 That said, Allsop P supported a broad view of ‘policy’ in this context, extending to the consideration of issues, both present and future, where the approach is to be assessed by reference to the general interests of society. His Honour acknowledged the difficulty in drawing any clear line between policy matters and operational or commercial matters, and that they may overlap. His Honour accepted that ‘policy’ in this context did not exclude consideration of what might be commercial ventures undertaken by governments or in which governments participate in one way or another; and that government participation in projects involving large expenditure, and social and economic investments, often gave rise to overlapping policy, economic and commercial considerations.190 241 The documents in issue in that case related to commercial arrangements entered into by the Public Transport Ticketing Corporation. Whilst the arrangements had some public and political significance, the challenged documents did not intrude significantly into matters of policy. Allsop P nevertheless upheld the claims for PII in respect of not only the records of Cabinet deliberations,191 but also the parts of the documents which were said to disclose the ‘content, subject matter or substance’ of submissions provided to the Budget Cabinet Committee.192 242 In Spencer, the Full Court of the Federal Court (Keane CJ, Dowsett and Jagot JJ) held that ‘documents submitted to and considered by Cabinet’ fell within the class of Cabinet documents that might be the subject of a proper claim for PII.193 Their Honours also included precursors or drafts of such documents, at least where they were created for the purpose of preparing a Cabinet submission.194 188 Public Transport Ticketing at [50] (Allsop P, Hodgson JA and Sackville AJA agreeing), citing Egan at [69] (Spigelman CJ) and CFMEU at [42]-[45] (Black CJ, Tamberlin and Sundberg JJ). 189 Public Transport Ticketing at [52]-[56] (Allsop P, Hodgson JA and Sackville AJA agreeing). 190 Public Transport Ticketing at [52]-[54] (Allsop P, Hodgson JA and Sackville AJA agreeing). 191 Public Transport Ticketing at [60]-[73] (Allsop P, Hodgson JA and Sackville AJA agreeing). 192 Public Transport Ticketing at [74]-[79] (Allsop P, Hodgson JA and Sackville AJA agreeing). 193 Spencer at [42]-[43] (Keane CJ, Dowsett and Jagot JJ). 194 Spencer at [32], [42]-[43] (Keane CJ, Dowsett and Jagot JJ). -- 57 of 86 -- [2024] SASCA 130 S Doyle JA 54 243 In Kamasaee v Commonwealth (No 3),195 Macaulay J considered claims for PII over a number of documents said to be Cabinet documents. Noting the variable weight that might be attached to the public interest in the confidentiality of documents within this category, his Honour emphasised the importance of clear evidence as to the type and nature of the documents sought to be protected.196 In his Honour’s view, the class of documents attracting a proper claim included each of the categories I have listed earlier in these reasons, adding that the issue was whether the documents had a ‘sufficient connection with or proximity to actual Cabinet deliberations which, having regard to the rationale for the immunity, will prima facie attract protection from disclosure for a particular document whatever its content’.197 244 Macaulay J explained that the rationale for protection clearly extended to documents actually submitted to Cabinet, including documents incorporated within the submitted documents.198 However, it also extended beyond this to documents which were not ultimately provided to Cabinet but which were preparatory to Cabinet submissions and hence which tended to disclose matters which it could be inferred were the subject of submission to Cabinet.199 245 In Ku-ring-gai Council the New South Wales Court of Appeal considered a class claim for PII in respect of various documents prepared by a private sector accounting firm, KPMG, in relation to the financial implications of a proposal for the merger of part of one local government area with another local government area. As required by legislation, the Minister who proposed the merger referred it for consideration by the Acting Chief Executive of the Office of Local Government, whose delegate then prepared a report for consideration by the Boundaries Commission. The applicant Council brought judicial review proceedings challenging the delegate’s report, and in that context sought access to various KPMG documents which the delegate had relied upon (or should have relied upon). Production was resisted on the basis of a claim for PII on the ground that the KPMG documents were prepared for submission to Cabinet in relation to its consideration of various local government reforms. That said, it seems that the hearing of the claim for PII was conducted on the basis that it was not necessary to determine whether the delegate’s report, let alone the KPMG documents, were in fact provided to Cabinet.200 246 In considering the claim for PII, Basten JA accepted that documents submitted to Cabinet attract the public interest in favour of confidentiality by reason that their disclosure may prejudice the proper functioning of the government, and in particular may prejudice the ability of Ministers and Cabinet 195 Kamasaee v Commonwealth (No 3) (2016) 52 VR 322 (Kamasaee). 196 Kamasaee at [8] (Macaulay J). 197 Kamasaee at [10] (Macaulay J). 198 Kamasaee at [51] (Macaulay J). 199 Kamasaee at [46]-[48], [51] (Macaulay J); see also his Honour’s subsequent reasons on particular documents in Kamasaee v Commonwealth (No 5) (2016) 52 VR 322 at 352, for example, at [27]-[36]. 200 Ku-ring-gai Council at [90] (Basten JA). -- 58 of 86 -- [2024] SASCA 130 S Doyle JA 55 (including those advising them) to obtain full and frank advice from other government officers and external experts.201 However, his Honour proceeded to reject a ‘blanket approach’ to Cabinet documents, holding that the extent of protection depended upon the type of document and the subject matter with which it was concerned. Unlike a claim in respect of documents which record or reveal the content of actual Cabinet deliberations, the claim in respect of the KPMG documents required careful scrutiny of the rationale for protection.202 247 His Honour held that the public interest in protecting the confidentiality of the KPMG documents carried ‘little weight’. In addition to the absence of any clear or close connection between the KPMG documents and any Cabinet deliberations, his Honour emphasised matters that included: that the statutory regime for merger proposals required that there be an examination and report, including public inquiry; and that it was unlikely that a private organisation such as KPMG, when preparing financial information in this statutory context, would assume that it would not be disclosed, or have its candour or frankness compromised. In the circumstances, his Honour was satisfied that the limited public interest in confidentiality was outweighed by the public interest in the disclosure of these documents for the purposes of the judicial review proceedings.203 248 Macfarlan JA agreed with Basten JA, rejecting the claim for PII in respect of the KPMG documents for essentially the same reasons.204 Sackville AJA decided the appeal on grounds that did not require determination of the claim for PII. Whilst observing obiter that he would have upheld the claim for PII, he acknowledged that the outcome would depend upon the forensic context.205 249 In NSW Ports, Wigney J considered a claim for PII in respect of a large number of documents said to be Cabinet documents. The context was proceedings arising out of the privatisation of three ports in which the ACCC alleged that certain arrangements between the State of New South Wales and the commercial parties to the privatisation had the anti-competitive effect of deterring the development of a container terminal at one of the ports. The State was joined to the proceedings by one of the commercial parties, with a cross claim against the State. The ACCC served a notice to produce on Morgan Stanley, a company which had provided advice to the State. The ACCC alleged that documents provided by Morgan Stanley to the State contained advice as to how the successful bidder for two of the ports could be protected from competition, which would be material evidence in the substantive proceedings. The State made a class claim for PII in respect of some 459 documents, which were divided into 12 categories and said to be Cabinet documents. 201 Ku-ring-gai Council at [80] (Basten JA). 202 Ku-ring-gai Council at [80], [89]-[90] (Basten JA). 203 Ku-ring-gai Council at [90]-[94] (Basten JA). 204 Ku-ring-gai Council at [128] (Macfarlan JA). 205 Ku-ring-gai Council at [301] (Sackville AJA). -- 59 of 86 -- [2024] SASCA 130 S Doyle JA 56 250 In setting out the general principles governing consideration of the claims for PII, Wigney J described the documents which may attract the relevant public interest in confidentiality in terms similar to the categories listed earlier in these reasons, and hence including documents submitted to Cabinet.206 His Honour also described the rationale for confidentiality in terms that included ensuring free and frank discussions between members of Cabinet.207 He emphasised that different types of documents, even if aptly described as Cabinet documents, may attract a different measure of protection from disclosure, but added that submissions for the consideration of Cabinet were in the same position as records of the actual deliberations or decisions of Cabinet, at least where they ‘tend to reveal the nature of the matters considered by Cabinet, the Cabinet’s deliberations, the position taken by a Minister or Ministers and the arguments that they advanced on the topic’.208 251 Wigney J explained that the measure of protection to be afforded to particular documents will depend upon the subject matter of the documents, in particular whether they concern matters that are current or controversial, and whether they are concerned more with matters of policy than commercial or contractual issues. As to the latter, his Honour added that the choice was not always binary; that Cabinet deliberations often involved an overlapping consideration of both.209 Wigney J explained that the outcome of the balancing exercise will also turn on the nature of the court proceedings in question, and the materiality or forensic relevance of the documents in the proceedings.210 252 In analysing the merits of the claim for PII, his Honour commenced by noting that the ACCC accepted that all of the challenged documents fell within the broad class of Cabinet documents, and hence attracted at least some measure of public interest against disclosure.211 However, his Honour said that some documents (such as the formal records of Cabinet deliberations or decisions) would attract a significantly greater measure of protection than others (such as documents obtained from external advisers or consultants, where they do not disclose any Cabinet deliberations or decisions).212 It was also relevant that the State conceded that the subject matter of the documents was no longer current or controversial, given that the privatisation had been completed over six years earlier.213 253 Wigney J was satisfied that many of the documents which were the subject of PII claims were likely to be material, in some cases significantly material, to the issues in the proceedings.214 In the circumstances, his Honour decided that it was 206 NSW Ports at [53] (Wigney J). 207 NSW Ports at [54] (Wigney J). 208 NSW Ports at [56]-[58] (Wigney J). 209 NSW Ports at [59]-[62], [66] (Wigney J). 210 NSW Ports at [66] (Wigney J). 211 NSW Ports at [70] (Wigney J). 212 NSW Ports at [81] (Wigney J). 213 NSW Ports at [47], [82] (Wigney J). 214 NSW Ports at [86] (Wigney J). -- 60 of 86 -- [2024] SASCA 130 S Doyle JA 57 appropriate to inspect the documents so as to determine the claims for PII, albeit referring to some of the difficulties in undertaking the process.215 254 In then addressing the various claims for PII, Wigney J did so by reference to the various categories into which the documents had been grouped. His Honour upheld most of the claims, and it is instructive to summarise his approach in relation to some of these categories. 255 His Honour upheld the claims over the Category A documents, being formal records of cabinet meetings, including the minutes of those meetings.216 While recognising that such documents would ordinarily be afforded the ‘highest level of protection’, his Honour observed that the documents did not relate to any current or controversial matter of policy, and revealed little of substance as to any discussion or debate that had occurred. While expressing some reservations as to whether disclosure would stifle discussion or debate at future Cabinet meetings, his Honour noted that the documents were of limited relevance and so upheld the claim for PII. 256 Wigney J also upheld the claims over the Category C documents,217 being submissions, minutes and briefs prepared by or on behalf of Ministers for the purpose of briefing Cabinet. His Honour again noted the high level of protection that such documents would ordinarily attract. However, in that case the documents did not generally relate to any current or controversial matter, and involved a focus upon commercial, contractual or transactional issues rather than policy. That said, because the documents were only relevant in a general sense, rather than being critical or important evidence, the balance tipped in favour of upholding the claims for PII. 257 Significantly, in upholding the claims for PII over the Category C documents, his Honour included attachments to the submissions and minutes, including an executive summary of a Morgan Stanley report. Wigney J treated the attachments as part of the submission or minute to which they were attached, and hence entitled to the protection afforded to those documents.218 His Honour dealt separately with the free-standing copies of these attachments as Category D documents. 258 Turning to the Category D documents, whilst they were referred to as annexures or attachments to Cabinet submissions or minutes, they were in fact free-standing copies of the documents which had been so annexed or attached. They consisted mostly of reports (or draft versions or extracts of reports) prepared by large external advisory or consultancy firms, dealing with various commercial, technical or legal aspects of the proposed privatisations.219 Some were marked ‘Cabinet-in-Confidence’, and addressed to the State or the government, but for the 215 NSW Ports at [89]-[101] (Wigney J). 216 NSW Ports at [102]-[110] (Wigney J). 217 NSW Ports at [113]-[121] (Wigney J). 218 NSW Ports at [96], [119] (Wigney J). 219 NSW Ports at [124] (Wigney J). -- 61 of 86 -- [2024] SASCA 130 S Doyle JA 58 most part there was nothing on the documents to indicate that they had been prepared for the purpose of being provided to Cabinet. The most that could be said in terms of their connection to Cabinet deliberations was a general assertion (by the General Counsel of the Department of Premier and Cabinet) to the effect that they were prepared for the purpose of Treasury being able to advise Cabinet, and for provision to Cabinet; and that at some point a copy of each had been provided to Cabinet and annexed or attached to submissions or minutes provided to Cabinet.220 259 As well as expressing reservations about the weight to be attached to the general assertions as to the intended and actual use of the Category D documents, Wigney J went on to explain that the documents did not, for the most part, deal with any current or controversial matters of policy. Rather, they dealt with technical matters of a commercial, legal, engineering, accounting or environmental nature, and had been provided by large and sophisticated external advisors. His Honour accepted that there should be a general expectation that such material not be disclosed publicly in any general way. But he was sceptical that advisors, or members of Cabinet, would be influenced by the prospect of the disclosure of such documents for the limited purposes of litigation in appropriate cases.221 260 Having noted that most of the Category D documents had ultimately been included as attachments to the final Morgan Stanley report, his Honour considered that the public interest in maintaining their confidentiality was fairly slight, and outweighed by the public interest in favour of their disclosure given their relevance to the proceedings. His Honour rejected the claim for PII in respect of these documents, although he upheld the claim in respect of reports from two consulting firms which related to engineering and environmental considerations and which were of no apparent relevance to the proceedings.222 His Honour took an equivalent approach in relation to the drafts of the various consultants’ reports (Category G),223 and other documents (such as emails discussing the Morgan Stanley report) which tended to disclose the content of those reports (Category J).224 261 Wigney J upheld the claims of PII over the Category F documents, being drafts of various Cabinet minutes and submissions.225 His Honour also upheld the claims over Category I documents, being documents (such as emails between senior public servants) which included comments or queries about Cabinet minutes or submissions, and so which tended to disclose the content of those minutes or submissions.226 220 NSW Ports at [124]-[127] (Wigney J). 221 NSW Ports at [128]-[136] (Wigney J). 222 NSW Ports at [137]-[145] (Wigney J). 223 NSW Ports at [156]-[158] (Wigney J). 224 NSW Ports at [170]-[173] (Wigney J). 225 NSW Ports at [146]-[150] (Wigney J). 226 NSW Ports at [163]-[169] (Wigney J). -- 62 of 86 -- [2024] SASCA 130 S Doyle JA 59 262 Wigney J concluded by summarising his reasons for upholding most, but not all, of the claims for PII:227 In summary, the public interest tips in favour of the disclosure of those documents because they contain apparently material evidence in respect of the substantive proceedings and the particular nature and content of the documents is such that the public interest against their disclosure is relatively slight, even though they may, broadly speaking, be considered to be Cabinet documents. The case for disclosure is perhaps clearest in the case of the reports and draft reports of external consultants and advisers (Categories D and G), particularly given that the content and subject matter of those reports was mainly commercial, contractual or technical and is no longer current or controversial. Those reports and draft reports also contain some potentially material evidence. The remaining documents which are the subject of the Secretary’s claim are immune from production. That is most clearly the case in relation to the documents which disclose or tend to disclose Cabinet decisions or deliberations, or the content of submissions to Cabinet (Categories A, B and C), particularly in circumstances where those documents did not contain any apparently material or important evidence. 263 Finally, Aversa v Transport for New South Wales228 involved proceedings brought by two plaintiffs who contended that the compulsory acquisition of their residential properties by the State government for the purpose of a motorway tunnel was unlawful. The State government project (referred to as the WestConnex project) had been announced in 2012, and construction commenced in 2015. The plaintiffs’ land was compulsorily acquired in 2019. 264 The project was financed by the State, through a corporate vehicle established in 2014. In 2016, the State government commenced the process by which it sold 51 per cent of its interest in the project to the private sector. The sale process was referred to as Project Giant and was completed in September 2018. In order to guide the sale process, the State government commissioned a report from Goldman Sachs Australia, referred to as a scoping study for Project Giant. 265 In March 2020, the government announced its intention to sell its remaining 49 per cent interest (Project Pearl). This project was controlled by a steering committee with senior representatives from Treasury, the Department of Premier and Cabinet, and Transport for New South Wales. The steering committee commissioned a scoping study from Citigroup Global Markets Australia and the Royal Bank of Canada, which was prepared for submission to the Expenditure Review Committee, a sub-committee of Cabinet. The sale was completed by October 2021. 266 In the course of these proceedings, the State resisted production of seven documents sought by the plaintiffs under a notice to produce on the ground of PII. The documents were said to be relevant to the quantification of the plaintiffs’ claim. They were described as follows: 227 NSW Ports at [188]-[189] (Wigney J). 228 Aversa v Transport for New South Wales [2022] NSWSC 277 (Aversa). -- 63 of 86 -- [2024] SASCA 130 S Doyle JA 60 • Documents 3, 4 and 5 were submissions made to Cabinet. • Document 7 was a briefing report for the Chief Executive of Transport for New South Wales which contained references to, and hence revealed, Cabinet decisions and submissions. • Documents 1 and 2 were the two scoping studies referred to above, namely the Goldman Sachs study commissioned by the State in relation to Project Giant and the Citibank / Royal Bank of Canada study commissioned by the steering committee for Project Pearl. The reports had ultimately been submitted to the Expenditure Review Committee. • Document 6 was a draft chapter in the WestConnex business case which had been prepared for the purpose of attaching to a Cabinet submission. 267 In analysing the claims for PII, Parker J accepted the basal relevance of, or the legitimate forensic purpose in seeking, the documents sought through the notice to produce. However, his Honour said that it was necessary to look at the more concrete question of the potential materiality of the documents.229 In his view, the case for production was ‘hardly compelling’, accepting only that the documents were possibly relevant to the plaintiffs’ case on quantum.230 268 After referring to several of the cases mentioned earlier in these reasons, Parker J upheld the claim of PII in respect of Documents 3, 4, 5 and 7 on the basis that they recorded or revealed Cabinet submissions.231 In also upholding the claim for PII in relation to the scoping studies (Documents 1 and 2) and WestConnex business case extract (Document 6), Parker J explained:232 Documents 2, 6 and 1 are all documents (or, in the case of document 6, a draft of a part of a document) which were attached to a cabinet submission. For reasons which I have given, their disclosure would not necessarily disclose a position the relevant minister took in cabinet, although, depending on their content and the surrounding circumstances they might indirectly do so as a matter of inference. But to reach that conclusion would, I think, require inspection of the documents, or at least more specific evidence. To this extent, documents 2, 6 and 1 are similar to the report which was the subject of the claim in Ku-ring-gai. But I think it is clear from the evidence that they were generated for the purpose of providing advice and recommendations to cabinet and for no other purpose. Contrary to the submission of counsel for the Aversas, they were not concerned only with operational matters (cf [Public Transport Ticketing] at [54]-[55]). And there is no statutory context requiring the documents, or information in them, to be provided to someone else for the purpose of performing a statutory function, as there was in Ku-ring-gai. … 229 Aversa at [71] (Parker J). 230 Aversa at [73]-[75] (Parker J). 231 Aversa at [92]-[95] (Parker J). 232 Aversa at [96]-[100] (Parker J). -- 64 of 86 -- [2024] SASCA 130 S Doyle JA 61 As already stated, I think it is sufficiently clear on the evidence that documents 2, 6 and 1 were prepared for submission to cabinet. That is sufficient to attract the first rationale for public interest immunity, namely the fostering of frankness in the giving of advice. As the Ku-ring-gai case shows, that rationale, although it has some weight, may not always prevail. But the report in Ku-ring-gai had a concrete importance for the outcome of those proceedings. In the present case I think that the argument for relevance of the documents is so weak, on the material which has been put before me, that the public interest in production is outweighed by the generalised public interest in the secrecy of high-level government policy development. 269 His Honour did not consider it was necessary for him to inspect the documents.233 270 This review of the authorities supports a broad view of the rationale for protecting the confidentiality of Cabinet documents, and hence of the range of documents which will attract that protection, consistently with what I have suggested earlier in these reasons. If a document would tend to reveal, whether directly or indirectly, any Cabinet deliberations, including the information deliberated upon, then it will fall within the relevant class and attract at least some measure of protection. 271 It also demonstrates that in assessing the weight to be attached to the public interest in favour of protecting confidentiality, the courts have tended to emphasise the nature of the document and the closeness of its connection with the deliberations of Cabinet. At the same time, it is also relevant to consider the subject matter of the document, and in particular the extent to which it relates to current or controversial matters of policy, as opposed to merely historical matters of a commercial or technical nature. 272 However, when considering the significance of the subject matter of the document, I would add two cautionary observations. The first is that I would emphasise the observations of Allsop P in Public Transport Ticketing to the effect that it is appropriate to take a broad view of what ‘policy’ encompasses in this context, and to acknowledge that large government undertakings will often involve overlapping policy, economic and commercial considerations. A contrast may be drawn between, on the one hand, matters which involve large expenditure, and social and economic investments, where decisions are made by reference to the general interests of society and, on the other hand, matters of a merely technical or commercial significance to a particular transaction or arrangement. Whilst policy considerations will readily intrude upon Cabinet’s deliberations in the case of the former, they are less likely to do so in the case of the latter. 273 The second is that I would emphasise the class nature of a claim for PII over Cabinet documents. Whilst the distinction between class claims and contents claims is ‘rough and imprecise’, it is accepted and retains some significance.234 In 233 Aversa at [101] (Parker J). 234 Northern Land Council at 616-617 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). -- 65 of 86 -- [2024] SASCA 130 S Doyle JA 62 particular, it is relevant to keep in mind that the rationale for the protection of Cabinet documents as a class lies in the public interest in ensuring the confidentiality of Cabinet processes generally. As such, in determining whether, and to what degree, a document should be afforded protection, the focus should be on the capacity for disclosure of a document of the relevant type or nature to undermine this rationale. Whilst the subject matter of the document may have some bearing upon this assessment, care must be taken not to be drawn into an assessment of whether the content of a particular document or documents, of itself, has this capacity or warrants this protection. 274 This distinction between a class claim and contents claim also bears on the issue of inspection. The discretion to inspect 275 A court considering a claim for PII has a discretion to inspect the documents over which the claim is made, both in ascertaining whether they properly fall within a class attracting the relevant public interest in favour of confidentiality, and in carrying out the balancing exercise involved in weighing the competing public interests in favour of confidentiality and disclosure.235 276 At the same time, as the High Court explained in Northern Land Council, to inspect the contents of documents the subject of a class claim as a matter of course would be to disregard the basis of the immunity.236 Similarly, in deciding not to inspect the challenged documents in Ku-ring-gai Council, Basten JA emphasised the significance of the distinction between a class claim, based on the nature of the document, and a claim based on the contents of the document:237 The distinction is by no means watertight, but one significance of the distinction is that, whereas it may be appropriate for the court to inspect documents where the claim for immunity is based on their contents, there will usually be no cause for inspection where the claim does not rely upon the contents. 277 Where it is clear that the document falls within the relevant class, and the balancing exercise can otherwise be satisfactorily carried out without inspecting the documents, then the court should generally proceed that way. Whether that can be achieved will depend upon the circumstances of the case. In some cases, a basic description of the document will be sufficient to determine the claim for PII without the need for inspection. In other cases, particularly where the claim for PII is confined to a redacted portion of a document, the information available from the balance of the document may be sufficient. In yet other cases, the claim for PII may be supported by evidence that is sufficient to enable the court to undertake the balancing exercise. 235 Northern Land Council at 617, 619 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 236 Northern Land Council at 617 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 237 Ku-ring-gai Council at [79] (Basten JA). -- 66 of 86 -- [2024] SASCA 130 S Doyle JA 63 278 Consistently with this approach, the Court in Spencer said that where there was cogent evidence of the grounds for making a class claim of PII over the challenged document, there will not ordinarily be any warrant for inspection of those documents. Depending upon the strength of the claim for immunity, the position may be otherwise where, for example, there is a proper basis for concluding that there is a ‘sufficient demand of justice for disclosure of the document having regard to its importance to the resolution of the proceedings’.238 However, this requires something more than relevance in a general or basal sense. It requires more than acceptance that the document is relevant, or even directly relevant, to the matters in issue for discovery purposes. It contemplates that the document may be material to the resolution of the matters in dispute in the proceedings. 279 In summary, it is only where the court is satisfied that it will be assisted in carrying out the balancing exercise that it should inspect the challenged documents. 280 It is noteworthy that in several of the cases I have surveyed, it was not considered necessary to inspect the challenged documents, despite those documents being at least relevant in the basal sense mentioned above. While Wigney J inspected the challenged documents in NSW Ports, this was in circumstances where his Honour expressed significant reservations as to the general, assertive, and in some cases inaccurate, nature of the evidence adduced in support of the claims for PII; and was satisfied of the apparent materiality of at least some of the documents.239 In deciding to inspect the challenged documents in Public Transport Ticketing, Allsop P was similarly critical of the lack of specificity in the evidence as to the status of the documents, and their link to Cabinet deliberations or processes.240 Conversely, in Aversa, Parker J was able to undertake the requisite balancing exercise on the basis of the descriptions of the document in the evidence, and so considered inspection unnecessary and unwarranted.241 281 Against this background, it is appropriate to consider the primary judge’s reasons for upholding the claims for PII in the present case. The primary judge’s reasons 282 The primary judge commenced his reasons by describing the background to the arbitral proceedings. His Honour outlined the contractual relationships between the various parties involved in the project to design and construct the nRAH. In the course of this, his Honour mentioned the Steering Committee which was established by the State as its peak decision-making body for the nRAH project. He explained that its members were senior officers of the executive of the 238 Spencer at [33] (Keane CJ, Dowsett and Jagot JJ). See also Northern Land Council at 619 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ); NSW Ports at [67]-[69] (Wigney J). 239 NSW Ports at [70]-[84] (Wigney J). 240 Public Transport Ticketing at [76] (Allsop P, Hodgson JA and Sackville AJA agreeing). 241 Aversa at [34], [101] (Parker J). -- 67 of 86 -- [2024] SASCA 130 S Doyle JA 64 State, and set out its terms of reference. He described its project management role, but explained that it also had a Cabinet advisory role in that it was charged with ‘making submissions to Cabinet on any decisions that have a material impact on the business case for the project’.242 His Honour explained the significance of the Steering Committee’s dual role:243 The Steering Committee’s Cabinet advisory role adds important context to the State’s claims of public interest immunity. The Steering Committee’s dual role has the consequence that the meeting agenda papers prepared for its meetings and the meeting minutes are likely to refer to Cabinet decisions and directions on material aspects of the nRAH project. It also has the consequence that disclosure of the fact that a document, received by the Steering Committee in its project management role, was sent to Cabinet might reveal that Cabinet deliberated on it, and that it either acted on it, for example, by giving a direction to the Steering Committee or exercising its prerogative, statutory, or personal powers, or took no action at all, on that report or advice. 283 After outlining the chronology of events in relation to the completion of the nRAH project, the primary judge provided a relatively detailed summary of the three aspects of the arbitral proceedings in relation to which the disputed documents were said to be relevant (being the wrongful conduct claim, the EPAS claim and the contamination claim). These matters have been summarised in the joint reasons. 284 The primary judge identified the three categories of documents by reference to which the State made its PII claims.244 Category A1 (Cabinet documents): Documents that are a Cabinet document (final, draft or attachment) or repeat content within a Cabinet document. Enclosures to Cabinet documents include reports, business cases and independent reviews prepared by external consultants for consideration by Cabinet. Category A2 (references to Cabinet discussions): Documents that would reveal Cabinet decisions, deliberations or discussions. Documents within A2 broadly fit into: speech notes, packs and minutes of meetings of the EPAS Programme Board and Steering Committee, which contain mentions of cabinet decisions, deliberations or discussions, briefing notes. Category A3 (preparatory documents): Documents that relate to the preparation of Cabinet documents (including directions, options, budget or timing) and would reveal the content of Cabinet documents. 242 Reasons at [14]. 243 Reasons at [15]. 244 Reasons at [46]. -- 68 of 86 -- [2024] SASCA 130 S Doyle JA 65 Direct quotes from Cabinet documents, documents that disclose the nature or content of Cabinet documents, briefing notes, e-mails. 285 His Honour then set out his understanding of the basis upon which the State’s PII claims were advanced in respect of these categories:245 The claim for category A1 and A2 documents is that, if the documents were disclosed, they would reveal that some or all of the information they contain was the subject of a Cabinet decision, deliberation, or discussion. By corollary, categories A1 and A2 do not include documents which were prepared for a purpose other than for submission to Cabinet, but which were attached to, or accompanied, Cabinet documents, unless their disclosure would show that they were put before Cabinet. In respect of category A3 preparatory documents, the objection is that production of the document, or the redacted part thereof, would reveal that the information it contains was provided to Cabinet. The State’s position is, therefore, that it has not withheld from production documents which were prepared, or received, for the Steering Committee’s project management role merely because they also happen to have been provided to Cabinet in the discharge of its Cabinet advisory role. Objection to the production of documents is only made if, by that production, the information provided to Cabinet for its deliberations would be revealed. 286 After later referring to the discussion of the rationale for protecting the confidentiality of Cabinet documents in Northern Land Council, the primary judge acknowledged the variable degree of protection to be afforded to documents falling within that class:246 It is apparent from the descriptions of the documents in this case that they are not minutes of Cabinet deliberations which is the primary focus in the above passage from the judgment in Northern Land Council. I have determined the State’s claims on the basis that the documents, or parts of the documents, withheld were put before Cabinet for its deliberations on budgetary decisions and the directions which it would give, or refrain from giving, to the Steering Committee on how it should manage the project. Nonetheless the determination I must make requires a balancing of the public interest in the due administration of justice against the degree of protection against disclosure which that class of documents, which comprises the subject matter of Cabinet deliberation, demands. The degree of protection required will, of course, vary depending on the nature of the matter and whether it is a matter of current or only historical importance. 287 His Honour referred to the observations in Northern Land Council to the effect that, for documents recording Cabinet deliberations, there would need to be exceptional circumstances before the public interest in favour of Cabinet confidentiality would be outweighed by the public interest in favour of disclosure so as to avoid compromise to the administration of justice.247 Having acknowledged that the documents in the present case did not record Cabinet 245 Reasons at [47]-[49]. 246 Reasons at [55]-[56]. See also at [62], referring to Debelle J’s reference in Adelaide Brighton Cement to the degree of protection depending on a range of factors, including the status of the documents, their subject matter, their age, and whether they have been published. 247 Reasons at [57]. -- 69 of 86 -- [2024] SASCA 130 S Doyle JA 66 deliberations, his Honour said that determination of the State’s claims for PII required a balancing of these competing interests in ‘the particularity of the circumstances’ of each document.248 288 The primary judge also considered whether, in carrying out the balancing exercise, he should inspect the disputed documents. His Honour noted several authorities suggesting that inspection should not occur as a matter of course; and that basal relevance (in the sense that documents are relevant, or even directly relevant, for the purposes of discovery) did not necessarily justify inspection.249 His Honour disagreed with Debelle J’s suggestion in Adelaide Brighton Cement v South Australia,250 drawing upon Toohey J’s reasons in Northern Land Council, to the effect that once relevance was established, the judge was required to inspect.251 289 In concluding that it was not necessary to inspect the disputed documents in the present case, the primary judge explained:252 [The appellant] has plainly laid a sufficient foundation to require me to undertake a balance of the public interest in Cabinet confidentiality and the public interest in the administration of justice. … A judge exercises a discretion over whether or not to inspect the documents having regard to the likelihood that their contents will materially assist the party seeking production. I have not found it necessary to inspect the documents in respect of the challenges to the public interest immunity claim made over the first tranches of discovery because of descriptions of the nature of the documents in the open and confidential affidavits makes it clear that they properly fall within the classes of public interest immunity claimed by the State. Furthermore, the summaries of the controversies which are the subject-matter of the arbitration provided by the parties has allowed me to form a clear view based on the dates and descriptions of the documents in the open and closed affidavits that the administration of justice would not be materially compromised by withholding production. 290 The primary judge then explained the balancing exercise he had undertaken in respect of each of the challenged documents, or groups of documents, focusing upon those which had been the subject of specific submissions. In assessing the weight to be afforded to the public interest in favour of confidentiality, he considered the nature and subject matter of the documents, as ascertained from the dates and descriptions of the documents, the unredacted portions of the redacted documents, and the open and confidential affidavit evidence in support of the claim for PII. His Honour undertook a similar exercise in assessing the probative weight of the documents. 291 For example, in relation to the first eight documents (Documents 1A – 8A), his Honour determined that they consisted of a briefing note, two emails, and various attachments to one of those emails, all of which related to the EPAS 248 Reasons at [58]. 249 Reasons at [50]-[54], referring to Alister v The Queen (1984) 154 CLR 404 at 414-415 (Gibbs CJ); Legal Services Commission v Trotter (1990) 54 SASR 74 at 84-85 (Cox J); Northern Land Council at 617-618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 250 Adelaide Brighton Cement v South Australia (1999) 75 SASR 209 (Adelaide Brighton Cement). 251 Reasons at [66]. 252 Reasons at [66]. -- 70 of 86 -- [2024] SASCA 130 S Doyle JA 67 business case. They included various references to ministerial briefings and cabinet submissions in relation to EPAS. His Honour was satisfied that each was created in the context of ‘the preparation of documents to be submitted to Cabinet in respect of the EPAS system and that they would disclose that information in them was submitted to Cabinet for its deliberations’;253 they were ‘documents prepared for the purposes of informing Cabinet’s consideration of the business case for developing and installing EPAS’.254 His Honour accepted that the documents were relevant to the matters in issue in the arbitral proceedings, but said that their materiality to a just determination of those proceedings, and their probative weight, were different matters.255 Particularly given that the documents pre-dated the relevant dispute by some years, his Honour considered it unlikely that they would be of much significance.256 292 In upholding the claim for PII in relation to these eight documents, his Honour explained:257 I am satisfied that documents prepared for the purposes of informing Cabinet’s consideration of the business case for developing and installing EPAS are unlikely to support CPB’s pleaded case or damage the State’s defence in respect of the identified issues concerning EPAS. On the information available to me, I see no need to inspect the documents. On the other hand, it can also be accepted that the documents are unlikely to disclose the views of individual Cabinet Ministers. Nonetheless, Cabinet confidentiality serves other important public purposes.258 It allows Ministers, senior public servants, and third-party consultants to provide advice and make decisions unburdened by any anxiety over unfair or retrospective criticism of their positions. The advice to government might be expressed cautiously or boldly depending on the professional evaluation of the public servant. Changes in the structure of the public service have reduced the tenure of senior public servants and therefore the confidence with which they can give strong advice. In that context, Cabinet confidentiality makes an important contribution to the encouragement of frank advice. Even though Cabinet solidarity and accountability is the primary reason for protecting Cabinet deliberations from disclosure, public interest immunity serves other purposes. Cabinet, as a body, will often be called upon to manage complex and expensive State public projects. In the context of EPAS, it is important to keep in mind that the complexity of modern technological developments is such that there cannot always be a high degree of certainty about the preferred course. Unless a reasonably high level of confidentiality is maintained, defensive advice and decisions may result in the failure to take up valuable opportunities. The balancing of the competing public interests falls in favour of the State’s claims. 253 Reasons at [75]. 254 Reasons at [78]. 255 Reasons at [76]. 256 Reasons at [77]. 257 Reasons at [78]-[82]. 258 See, e.g., Spencer v Commonwealth (2012) 206 FCR 309, [11]-[16] (Emmett J). -- 71 of 86 -- [2024] SASCA 130 S Doyle JA 68 293 In relation to Document 12A,259 which was the minutes of a meeting between some senior public servants, the judge inferred from the unredacted portion of the document that the redactions were likely to refer to Cabinet deliberations on the funding for EPAS. His Honour was also satisfied that the redacted information was likely to be of marginal relevance at best, and upheld the claim for PII. 294 Document 15A260 was described as ‘Steering Committee Agenda and Papers’. Assisted by the confidential affidavit material relied upon by the State, the judge was satisfied that the redactions made to these papers related to information obtained from a report which was properly the subject of a claim for PII; that the report was one that had been ‘procured for the purposes of submission to the Cabinet’. As the report related to project governance, his Honour considered that it was unlikely to assist the appellant in the arbitral proceedings. Based upon some confidential submissions, his Honour was also satisfied that the redactions would not materially add to the information already available to the appellant through discovery and production. 295 Documents 30A to 37A261 were also Steering Committee papers, with his Honour satisfied that the redacted portions related to reports, or references to reports, which the Steering Committee was considering for the purposes of including in documents to be provided to Cabinet for consideration and decision by Cabinet. The redacted information was considered ‘unlikely to materially assist’ the appellant. 296 Document 46A262 was an EPAS briefing note, which his Honour was satisfied was produced and created for the purpose of preparing Cabinet documentation. His Honour added that, even if it referred to a report provided by an external consultant to the Steering Committee in its project management role, he was satisfied that disclosure of this document in its unredacted form would disclose information put before Cabinet. The redacted information was also ‘most unlikely’ to be of material assistance to the appellant in the arbitral proceedings. 297 The primary judge undertook a similar exercise in relation to the remaining challenged documents that had been the subject of submissions, before being satisfied that in each case the balance fell in favour of the State’s claims for PII. 298 Finally, in an ‘Epilogue’ to his reasons, the primary judge explained that after the hearing, a dispute had arisen in relation to claims for PII over a further six documents.263 Based on the confidential affidavit material, his Honour was satisfied that the documents in question were ‘prepared for, and only for, submissions to a Cabinet subcommittee’, and in the case of four of the documents, 259 Reasons at [84]-[86]. 260 Reasons at [87]-[89]. 261 Reasons at [90]-[93]. 262 Reasons at [94]. 263 Reasons at [116]-[117]. -- 72 of 86 -- [2024] SASCA 130 S Doyle JA 69 ‘prepared for the purpose of deliberation and possible decision by Cabinet’.264 However, having regard to the fact that these documents were more recent than the other challenged documents, and to the subject matters suggested by their titles, his Honour considered that they may contain information of material assistance to the appellant in the arbitral proceedings. His Honour therefore inspected the documents.265 In nevertheless upholding the claim for PII over these documents, his Honour explained:266 I find that the information in the documents was provided for the purpose of assisting Cabinet to make important strategic and policy decisions in respect of the construction of the nRAH in the context of the commercial dispute with HYLC and Celsus. The subject-matter of Cabinet’s consideration was the centrepiece of the South Australian hospital system, and at issue was the expenditure of substantial public moneys and resources. The critical importance to the State required its highest organ of executive government to be able to make the decisions in the best interests thereof as it perceived them to be without concern about personal criticism which the decision might attract if the documents were disclosed. On the other hand, I have formed the view that the information does not materially advance HYLC’s case beyond that which would be apparent from the overt actions of the State taken through the largely discoverable documents of the Steering Committee. 299 In the result, the primary judge upheld all of the State’s claims for PII. Grounds 1 & 3: Cabinet documents 300 Ground 1 involves a general complaint by the appellant that the primary judge erred in upholding the PII claims made by the State. Ground 3 complains that the primary judge erred in assessing the PII claims on the basis that they related to documents put before Cabinet for it to deliberate upon,267 whereas the categories over which the claims were made (Categories A1 to A3) were not so confined. In developing this ground, the appellant argued that the State’s claims for PII improperly extended to documents which were neither put before Cabinet, nor prepared for the purpose of being put before Cabinet. 301 As Ground 3 is, in essence, one of several reasons advanced in support of the appellant’s more general challenge in Ground 1 to the primary judge’s approach to the State’s claims for PII, it is convenient to address these grounds together. 302 In addressing these grounds, it is significant that the appellant focused its challenge to the primary judge’s decision upon what it contended was an erroneous approach to the class of documents which attract the public interest in the confidentiality of Cabinet deliberations. The appellant argued both that the Categories A1 to A3 through which the State made its claims were too broad and that, in any event, the primary judge took an erroneously broad view of the documents that fall within the class referred to as Cabinet documents. The 264 Reasons at [119]. 265 Reasons at [120]. 266 Reasons at [121]. 267 Referring to the Reasons at [55]. -- 73 of 86 -- [2024] SASCA 130 S Doyle JA 70 appellant’s challenge did not, however, descend to a document-specific challenge to the balancing exercise undertaken by his Honour in relation to the various challenged documents. The categories 303 The State pursued its claims for PII by reference to three categories of documents, referred to as Categories A1, A2 and A3. The State’s articulation of these categories has been set out earlier in these reasons, together with the primary judge’s summary of his understanding of the categories. 304 I am satisfied that these three categories of documents are consistent with the breadth of documents that I have earlier described as attracting the public interest in favour of the confidentiality of Cabinet deliberations and processes. They fall within the class of documents that may found a class claim for PII on the basis that they are Cabinet documents. 305 Category A1 (Cabinet documents) was directed towards documents which would constitute ‘Cabinet papers’, in accordance with what I have described as Category 1 (documents which record the deliberations or decisions of Cabinet) and Category 2 (submissions to Cabinet, including their attachments). There is no difficulty with the protection afforded to these documents extending to drafts. Similarly, and as addressed further below, there is generally no difficulty with it extending to attachments to submissions made to Cabinet. While the degree of protection afforded to attachments will vary, and may be limited, such documents will ordinarily attract at least some degree of protection. 306 While the State’s articulation of Category A1 included documents (or redacted portions of documents) which repeat the content of other Cabinet papers, these are perhaps better seen as examples of documents that would (also) fall within Category A2. 307 Category A2 (references to Cabinet discussions) was directed towards documents (or redacted portions of documents) which would reveal Cabinet decisions, deliberations or discussions. These documents would fall within what I have described as Category 3 of the documents recognised as Cabinet documents attracting the public interest in favour of confidentiality. 308 Category A3 (preparatory documents) was directed towards documents that relate to the preparation of Cabinet documents. While on the face of it these documents would fall within what I have described as Category 4, it would seem from the open affidavit evidence of Ms Green that the documents are (further) confined to documents which include reference to, and so would reveal, the content of Cabinet documents. Given this confinement, it would seem that the documents would (also) fall within Category A2. 309 In summary, although they might have been more precisely expressed, and seem to involve a considerable degree of overlap, I am satisfied that Categories -- 74 of 86 -- [2024] SASCA 130 S Doyle JA 71 A1, A2 and A3 represented an appropriate framework within which to consider the State’s claims for PII. Certainly there is nothing in the description of these categories, or their explanation by Ms Green, which suggests any misunderstanding as to the types of documents which will attract the public interest in favour of the confidentiality of Cabinet deliberations and processes, and hence warrant at least some degree of protection. 310 Similarly, I see no difficulty arising from the primary judge’s description of his understanding of these categories in paragraphs [47]-[49] and [55] of his reasons. These paragraphs from his Honour’s reasons have been set out earlier. They make it plain that his Honour was prepared to accept that Cabinet submissions, including their attachments, attract the public interest in favour of the confidentiality of Cabinet deliberations; and that they do so because they would reveal the information put before Cabinet for it to deliberate upon, and hence tend to reveal something of the content of those deliberations. As his Honour explained, in the present case the documents were ones which would reveal the information provided to Cabinet for its deliberations on budgetary decisions and the directions it would give, or refrain from giving, to the Steering Committee as to how it should manage the nRAH project. His Honour later elaborated upon the potential for undesirably defensive advice and decision making in the event that the information placed before Cabinet in relation to such matters was not protected by some degree of confidentiality.268 311 The primary judge’s observations in this respect are consistent with the authorities I have reviewed, and the views I have expressed earlier in these reasons as to the breadth of the class of Cabinet documents appropriately the subject of a claim for PII. Purpose 312 The appellant sought to make something of his Honour’s reference, in paragraph [47] of his reasons, to documents ‘prepared for a purpose other than for submission to Cabinet’. However, read in context, his Honour made it clear that such documents did not automatically attract the relevant public interest in favour of confidentiality merely because they happened to later be put before Cabinet; they would do so only if their disclosure would show that they were put before Cabinet. 313 As I understand this reference in his Honour’s reasons, he was addressing the situation of a document (for example, a report obtained by the Steering Committee from an external consultant) created or prepared for a purpose or purposes which did not include submission to Cabinet. His Honour accepted that such a document would not fall within the protected class merely because a copy of, or extract from, the document was later included in, or attached to, a Cabinet submission. Consistently with the approach contended for by the respondent, only the copy, or extract, which revealed that it was provided to Cabinet for its deliberation would 268 Reasons at [79]-[81], set out earlier. -- 75 of 86 -- [2024] SASCA 130 S Doyle JA 72 be protected. This understanding is confirmed by his Honour’s subsequent consideration of the individual documents.269 314 Related to this, the appellant argued that documents provided to Cabinet do not attract the public interest in favour of confidentiality unless they were created or prepared for the purpose of provision to Cabinet. The argument was directed primarily to attachments to submissions provided to Cabinet, and advanced by way of analogy with the principles applied to documents subject to a claim for legal professional privilege, or LPP. 315 It may be accepted, in the context of LPP, that Commissioner of Australian Federal Police v Propend Finance Pty Ltd270 is authority for the proposition that, while a copy of a document brought into existence solely for the purpose of obtaining or giving legal advice, or for use in litigation, will be privileged, an original or anterior copy which was prepared for a non-privileged purpose will not. From this proposition, the appellant argued, by analogy, that the purpose for which a document is created or prepared is similarly critical in any consideration of whether a document may attract a claim for PII. 316 Using the categories set out earlier in these reasons, Category 1 documents (and Category 3 documents which reveal Cabinet deliberations) can be put to one side on the basis that any record of the actual deliberations of Cabinet are plainly Cabinet documents attracting a claim for PII. However, for other documents, the appellant argued that purpose is critical. In particular, Category 2 documents (submissions to Cabinet and their attachments) will only attract a claim for PII if they were created for the purpose of being provided to Cabinet; and Category 4 documents (preparatory documents) will only attract a claim for PII if they were created for the purpose of preparing submissions to Cabinet. 317 In developing this argument, the appellant focused upon Category 2 documents. Whilst Cabinet submissions themselves will obviously have been created for the purpose of being provided to Cabinet, that may not be so in the case of the attachments to those submissions. On the appellant’s argument, the attachments will not be Cabinet documents attracting a claim for PII unless they were prepared or created for the purpose of provision to Cabinet. By way of example, the appellant argued that a report obtained by the Steering Committee, in its project management role, will not attract a claim for PII merely because it was later attached to a submission made to Cabinet. 318 To an extent, the appellant was pushing against an open door in making this argument. As explained, the respondent and primary judge proceeded on the basis that a claim for PII in the circumstances described would not extend to an original or anterior copy of the report. It would only extend to the copy provided to 269 For example, the report referred to in Document 15A. See Reasons at [87]. 270 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. -- 76 of 86 -- [2024] SASCA 130 S Doyle JA 73 Cabinet,271 with that copy entitled to a degree of protection on the basis that disclosure would reveal information deliberated upon by Cabinet. 319 Confining the claim for PII in this way would be consistent with the approach to LPP in that it would confine the claim to documents (or copies of documents) created or prepared for the purpose of submission to Cabinet. Be that as it may, I do not think that the purpose for which a document was created carries the significance that it does in a claim for PII as it does in a claim for LPP. In other words, I reject the validity of the analogy. PII and LPP have quite different rationales, and there is no reason to think that there need be any close analogy between the principles governing the scope of each. The copy of the report provided to Cabinet as an attachment to a submission attracts a claim for PII because, by revealing the information provided to Cabinet for it to deliberate upon, its disclosure would tend to inhibit the decision making and policy development processes of Cabinet. 320 This approach is consistent with the authorities reviewed earlier in these reasons and, in particular, the approach taken by Wigney J in NSW Ports. As explained in my summary of that case, his Honour had little hesitation in accepting that the copy of the Morgan Stanley report which was attached to a Cabinet submission fell within the class of Cabinet documents attracting some measure of protection.272 As his Honour explained, whether an anterior, or free-standing, version of the report fell within that class was a separate issue; the fact that this version of the report may not attract a proper claim for PII did not mean that a copy later provided to Cabinet will not attract a proper claim. 321 It does not appear to me that the State has made any claim for PII over any anterior or free-standing versions of a document, such as a report from an external consultant, merely because a copy of it later became an attachment to a Cabinet submission.273 If such a claim had been made, it would have been necessary to consider its connection or proximity to the deliberations of Cabinet, in accordance with the authorities reviewed earlier in these reasons. Relevant considerations would have included who requested or commissioned the report; and if it was the Steering Committee, the circumstances in which it did so, including the extent to which it was acting in its Cabinet advisory role, as opposed to merely its project management role; and the extent to which it was concerned with narrow commercial or technical considerations, or broader economic and policy considerations. In considering these matters, the purpose for the report’s preparation would have been relevant, although not necessarily decisive. 322 However, on the basis that the State’s claim for PII in respect of any such reports was confined to (a) copies attached to submissions provided to Cabinet, and (b) documents referring to or revealing the provision of such reports (or 271 Or a document (or passage in a document) revealing that the report was provided to Cabinet. 272 NSW Ports at [96], [119] (Wigney J). 273 As opposed to a claim for PII over a copy of a report attached to a Cabinet submission, or over a document which revealed that the report (or part of the report) was provided to Cabinet. -- 77 of 86 -- [2024] SASCA 130 S Doyle JA 74 extracts thereof) to Cabinet, this issue does not arise. Such documents (or passages of documents) would be Cabinet documents properly attracting a claim for PII, albeit that it would remain necessary to consider the weight to be attached to the public interest in their confidentiality by reference to matters such as those just mentioned. In this way, the purpose and circumstances of the preparation of the original report may be relevant to the degree of protection afforded to the document when undertaking the balancing exercise in respect of that document. However, as explained later in these reasons, there is no reason to think that the primary judge fell into error in his consideration of these matters. Mere updates 323 The appellant also argued that the primary judge impermissibly extended the class of documents that might properly be described as Cabinet documents by failing to distinguish between submissions provided to Cabinet for its deliberations or decisions, and documents provided merely to update or brief Cabinet, or for Cabinet to note. I do not accept the validity of this distinction. The appellant did not cite any authority in support of this distinction and it is difficult to reconcile with the authorities I have reviewed earlier in these reasons. 324 Whilst formal submissions in respect of particular decisions are obviously within the scope of Cabinet documents that attract the relevant public interest in favour of confidentiality, the authorities do not suggest any requirement of a direct link to a particular decision made by Cabinet before documents or information provided to Cabinet will attract at least some degree of protection. 325 The distinction relied upon by the appellant would also conflict with the practical reality of how Cabinet operates, and with the rationale for the public interest in favour of confidentiality. As to the former, a Cabinet update, briefing or note is often provided on the basis that the responsible Minister will return to Cabinet at a later meeting for a formal decision.274 Alternatively, it may be provided on the basis that it is intended to inform, in a more general way, the ongoing consideration and decision making of Cabinet in relation to a significant matter or project. Understood in that way, the update, briefing or note has the same capacity to reveal the information deliberated upon by Cabinet as a more formal submission which may be more directly and temporally connected to a particular decision. The confidentiality of this information is equally important in ensuring uninhibited decision making and policy development by Cabinet, and hence equally supported by the rationale underpinning the public interest in confidentiality. 326 This description of how Cabinet operates is apposite to the nRAH project. As Ms Green explained in her evidence, the nRAH project was the largest infrastructure project undertaken by the State government, and the first public private partnership construction of its kind in the State. Given the size of the 274 Whilst probably a matter of general knowledge, this proposition was supported by the evidence of Ms Green (first affidavit, paragraph [12]). -- 78 of 86 -- [2024] SASCA 130 S Doyle JA 75 investment, and the significance of it to the State, a range of matters and decisions required Cabinet’s authority and direction. This included specific Cabinet approvals in accordance with established authorities such as thresholds within Treasury instructions issued under the Public Finance and Audit Act 1987 (SA). As part of this ongoing oversight, Cabinet received a range of documents – including business cases, independent reviews and assurance reports – intended to assist it in verifying and assessing assumptions and proposals.275 327 At most, the connection or proximity of the information to a particular Cabinet decision may be relevant to the weight to be attached to the public interest in its confidentiality, and hence the degree of protection which it attracts. But this is a matter pertaining to the balancing exercise, rather than the threshold issue of whether the documents fall within the range of documents properly the subject of a class claim for PII over Cabinet documents. Document by document 328 Importantly, and in any event, the primary judge recognised that whilst the categories utilised by the State in advancing its claims for PII provided a useful analytical framework, the claims ultimately needed to be assessed on a document by document basis. Each document, or group of documents, needed to be considered in order to determine whether in fact it fell within the class of documents attracting the protection afforded to Cabinet documents, and the degree of protection which it ought to be afforded. 329 As summarised earlier, his Honour plainly undertook this document by document assessment of the claims for PII. Whilst focusing upon the documents the subject of direct submissions, his Honour had regard to the evidence and submissions in relation to the individual documents. In addition to the document descriptions and affidavit evidence of Ms Green, his Honour was assisted in many cases by the non-redacted portions of the documents. It is apparent from his Honour’s reasons, and indeed from my consideration of the same material, that it was possible to glean a reasonable amount about the nature and subject matter of the challenged documents without inspecting them, or the redacted portions of them. 330 I shall return to the issue of inspection below, but for present purposes it is important to point out that the appellant’s submissions on appeal were directed primarily towards its challenge to the primary judge’s approach to the class of documents which might attract a claim for PII, rather than his Honour’s conclusion in respect of any particular document. Despite this, I have reviewed his Honour’s approach in light of the evidence and submissions before this Court, and am not satisfied that his Honour erred in accepting that the challenged documents were Cabinet documents attracting the public interest in favour of confidentiality, and hence at least some degree of protection. 275 Ms Green (first affidavit, paragraphs [30]-[31]). -- 79 of 86 -- [2024] SASCA 130 S Doyle JA 76 Degree of protection 331 While the appellant’s submissions were not focused upon the degree of protection to be afforded to the various challenged documents, it cannot be said that the primary judge failed to address, or erred in his approach to, this issue. His Honour made explicit reference to the variable degree of protection the documents might attract, and the need to undertake the requisite balancing exercise having regard to the ‘particularity of the circumstances’ of each document.276 332 Further, consistently with the discussion of principles earlier in these reasons, his Honour recognised and addressed the various matters relevant to the degree of protection to be afforded to the public interest in favour of confidentiality when carrying out the balancing exercise. These included not only the type or nature of the various documents, but also their subject matter and other considerations relevant to a consideration of their connection to Cabinet deliberations or processes, and their capacity to reveal such matters, or otherwise inhibit the decision making or policy development of Cabinet. 333 In paragraphs [55]-[56] of his reasons, the primary judge acknowledged the variable degree of protection, depending upon the type of document, and nature and currency of the matters addressed. Whilst the challenged documents were not minutes of Cabinet deliberations, his Honour was satisfied that the State’s claims for PII related to documents, or parts of documents, which were put before Cabinet for its deliberation on budgetary decisions and the directions which it would give, or refrain from giving, to the Steering Committee as to its management of the nRAH project. His Honour described the challenged documents as relating to important strategic and policy decisions by Cabinet in relation to the nRAH project. He described the nRAH project as the centrepiece of the South Australian hospital system, involving the expenditure of substantial public monies and resources. He added that it was of critical importance that Cabinet make decisions in relation to the nRAH project by reference to the best interests of the State.277 334 Understood in this way, there is no doubt that the nRAH project was of a nature and scale that raised overlapping policy, economic and commercial considerations of a type consistent with Allsop P’s explanation in Public Transport Ticketing of the appropriately broad view of ‘policy’ in this context.278 It plainly involved not only a very large expenditure of public funds, but also an investment of significant social and economic significance to the State, and hence in respect of which Cabinet’s directions and decisions would have been guided by the general interests of the people of South Australia. Cabinet’s role was not confined to a consideration of a technical or commercial aspect of a particular transaction or arrangement in the sense considered in some of the authorities. 276 Reasons at [56]-[58]. 277 Reasons at [121]. 278 Public Transport Ticketing at [52]-[54] (Allsop P, Hodgson JA and Sackville AJA agreeing). -- 80 of 86 -- [2024] SASCA 130 S Doyle JA 77 335 Whilst some of the claims related to copies of, or extracts from, documents obtained at the request of the Steering Committee, it is important to bear in mind the closeness of the connection between this body and the deliberations of Cabinet. As mentioned earlier, the Steering Committee was comprised of senior officers of the executive of the State, and as well as its project management role, it also had a Cabinet advisory role in that it was charged with ‘making submissions to Cabinet on any decisions that have a material impact on the business case for the project’.279 In circumstances where there was an inevitable overlap between its project management and Cabinet advisory roles, there was an inherent connection or proximity between information obtained and considered by the Steering Committee and the Cabinet process. 336 Other claims related to documents (or passages) from the papers of the Steering Committee, or the EPAS Programme Board which assisted it. Whilst their deliberations would not ordinarily attract a claim for PII, it is apparent from the claims made that they were largely directed to particular documents (or passages) from those papers which had the tendency to reveal matters that had been submitted to, or deliberated upon by, Cabinet. 337 In summary, despite the challenged documents not being a record of the actual deliberations of Cabinet, there were nevertheless features of the challenged documents that supported a considerable degree of protection. 338 Against the relatively clear and strong grounds for the protection of the challenged documents (or passages), the primary judge was in a position to form a relatively clear view as to their limited forensic significance in the arbitral proceedings. While accepting that the appellant’s claims in the arbitral proceedings put in issue the knowledge and motivations of various key representatives of the State, his Honour was nevertheless satisfied (from the descriptions of the issues in the arbitral proceedings, and the dates, descriptions, subject matter and context of the various documents (or passages)) that the challenged documents were unlikely to be of any material assistance to the resolution of the arbitral proceedings. There is nothing in the submissions made on appeal which has indicated any error in his Honour’s approach or conclusion as to the limited forensic significance of the challenged documents. 339 That said, there is limited utility in addressing the matter at this level of generality. The claims for PII could only be determined by undertaking the balancing exercise in respect of each challenged document, and by weighing the degree of protection which it was appropriate to afford particular documents against the public interest in the disclosure of each document. In the absence of any challenge addressed to the outcome of the balancing exercise in respect of any particular document or documents, there is little further that can be said about this matter. 279 Reasons at [14]. -- 81 of 86 -- [2024] SASCA 130 S Doyle JA 78 Ground 2: inspection 340 The appellant challenged the primary judge’s decision not to inspect the challenged documents (other than the six documents in respect of which claims for PII arose after the hearing) on two grounds. The first involved an issue of principle, with the appellant submitting that, even accepting that the challenged documents were Cabinet documents, once it was accepted that they were relevant, then it was appropriate, indeed necessary, for the primary judge to inspect them in order to determine the State’s claims for PII. The second involved a submission to the effect that, even if inspection did not automatically follow from an acceptance of relevance, there was not a sufficient basis in the evidence or otherwise for the judge to determine the claims for PII without inspecting the documents. 341 Addressing the issue of principle, it is true that Debelle J’s reasons in Adelaide Brighton Cement contained a passage which may be read as supporting the proposition that, in the context of a claim for PII, once relevance of the document is established, then the court should inspect the document for the purpose of carrying out the balancing exercise.280 It may be that, read in context, his Honour did not intend to go this far. But, in any event, I agree with the primary judge’s rejection of this proposition as an accurate statement of when a court considering a claim for PII will be required to inspect the challenged document or documents.281 342 As explained earlier in these reasons, by reference to reasons of the majority in Northern Land Council and the other cases reviewed, the court has a discretion whether to inspect the challenged document or documents. Even accepting the documents are relevant in the basal or general sense that they are relevant, or even directly relevant, for discovery purposes, the court should not inspect as a matter of course. That is all the more so in the case of a class claim for PII. The court should only do so where it forms the view that inspection is necessary, or likely to materially assist, in determining whether the documents fall within a class of documents attracting a claim for PII, or in carrying out the balancing exercise. 343 Inspection may be appropriate, or required, where there is uncertainty as to whether or to what extent the documents require protection; or where there is reason to think that the documents may be of some particular forensic significance. However, where there is a cogent basis in the evidence for making a class claim for PII over the documents, and it is apparent that the documents are unlikely to be of any particular forensic significance, there will not ordinarily be any warrant for inspection. 344 Consistently with the above, the Full Court of the Supreme Court of Western Australia in CTC Resources NL v Australian Stock Exchange Ltd282 expressly 280 Adelaide Brighton Cement at 214-216 (Debelle J). 281 Reasons at [66]. 282 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48 at [28] (Owen and Steytler JJ). -- 82 of 86 -- [2024] SASCA 130 S Doyle JA 79 declined to follow the impugned reasoning of Debelle J in Adelaide Brighton Cement. In their joint reasons, Owen and Steytler JJ regarded that approach as inconsistent with authority, including the reasoning of the High Court in Northern Land Council. Their Honours expressed the view that the discretion to inspect was a discretion ‘of the broadest kind’, to be exercised only when it would assist the court in determining the claim for immunity:283 The discretion, while a broad one, must be exercised judicially. There should be something in the circumstances of the case which excites the attention of the court to the view that the process of determining the challenge to the immunity claim will be aided by inspection. 345 While there are decisions of this Court in which inspection has been supported,284 these decisions are consistent with an approach which does not require inspection as a matter of course,285 but only where it is considered necessary, or likely to be of material assistance, in determining the claim for PII. 346 Having rejected the appellant’s challenge to the principles applied by the primary judge, it remains to consider whether the primary judge’s exercise of his discretion to inspect miscarried in some way. Whilst the outcome of a claim for PII is an evaluative decision, subject to appellate review in accordance with the standard of correctness,286 the parties accepted that the primary judge’s decision not to inspect the challenged documents was a discretionary one. As such, it fell to be reviewed in accordance with the principles of appellate restraint in House v The King.287 347 The primary judge summarised his reasons for declining to inspect the challenged documents in paragraph [66] of his reasons, set out earlier in these reasons. In summary, his Honour did not find it necessary to inspect the documents because the ‘descriptions of the nature of the documents in the open and confidential affidavits makes it clear that they properly fall within the classes of public interest immunity claimed by the State’; and because he had been able to form a ‘clear view based on the dates and descriptions of the documents in the open and closed affidavits that the administration of justice would not be materially compromised by withholding production’.288 283 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48 at [30] (Owen and Steytler JJ). See also Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 553 (Burchett J, Sheppard and Pincus JJ agreeing, referring to ‘good reason’ to inspect). 284 Casley-Smith v District Council of Stirling (1989) 51 SASR 447 at 469 (Matheson J); Legal Services Commission v Trotter (1990) 54 SASR 74 at 84-86 (Cox J, King CJ agreeing, in the context of a contents claim for PII); Medical Board of South Australia v Fisher (2000) 76 SASR 242 at [56] (Duggan, Nyland and Bleby JJ). 285 Rankine v State of South Australia [2022] SASCA 18 at [17] (Livesey P, Lovell and Doyle JJA). 286 State of Victoria v Brazel (2008) 19 VR 553 at [38] (Maxwell P, Buchanan and Vincent JJA); Police Federation of Australia v Nixon (2011) 198 FCR 267 at [82] (Lander, Gilmour and Gordon JJ); Spencer at [5] (Keane CJ, Dowsett and Jagot JJ). 287 House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). 288 Reasons at [66]. -- 83 of 86 -- [2024] SASCA 130 S Doyle JA 80 348 Having stated this general conclusion, his Honour then proceeded to explain by reference to a number of individual documents, or groups of documents, how he had reached his conclusion. The appellant has not sought to impugn his Honour’s reasons or conclusions in relation to any particular document or group of documents. Rather, its challenge to his Honour’s approach was left at a more general level. 349 In so doing, the appellant made a number of criticisms of Ms Green’s evidence. Those criticisms have been outlined and addressed in the joint reasons. Whilst Ms Green was not in a position to give evidence as to the subjective purpose for the creation of various of the documents, she was in a position to give evidence relevant to the nature and subject of the various documents, and their connection to Cabinet deliberations or processes. In summary, although there were some limitations upon the evidence she gave, her evidence provided an adequate basis for the primary judge to be satisfied that the challenged documents (or passages from those documents) over which PII had been claimed attracted the public interest in favour of confidentiality over Cabinet deliberations. In so concluding, the primary judge was assisted by not only the descriptions and subject matters of many of the documents, but also the context provided by the balance of documents in respect of which only a redacted passage was the subject of a claim for PII. 350 It may be accepted that the primary judge may have had some difficulty in determining the precise weight to attach to the public interest in favour of confidentiality for various of the challenged documents. But this did not mean that inspection was necessary. In circumstances where the primary judge was able to satisfy himself that the challenged documents (or passages) were unlikely to be of any material assistance in the resolution of the arbitral proceedings, it was open to the primary judge to reach a conclusion on the PII claims without proceeding to inspect the documents. 351 In considering the public interest in disclosure of the challenged documents (or passages), the primary judge was right to distinguish between general or basal relevance in the discovery sense, and the potential for non-disclosure of the documents (or passages) to materially compromise the administration of justice. This distinction was particularly significant in the context of the claims which were confined to particular passages of documents, rather than documents in their entirety. In the case of these claims for PII, even the concession that the documents were relevant in a basal discovery sense did not entail any necessary implication as to the relevance of the challenged passages. 352 At a general level, it is apparent from the nature of the matters in issue in the arbitral proceedings that the knowledge and motivations of various senior representatives of the State in connection with the nRAH project is a matter of significance in the arbitral proceedings. At the same time, the summary of the matters in issue provided to the primary judge (and summarised in the joint reasons) indicated a focus upon particular decisions and actions. This focus enabled the primary judge to make an informed assessment, particularly given the -- 84 of 86 -- [2024] SASCA 130 S Doyle JA 81 descriptions and early dates of a number of the documents, as to their likely relevance. 353 Having reviewed the evidence that was before the primary judge, I am satisfied that he was in a position to make an assessment that the challenged documents were unlikely to be of any material significance in the arbitral proceedings; and hence that withholding their disclosure would not materially compromise the administration of justice. In those circumstances, it was open to his Honour to conclude that there was no need or warrant to inspect the challenged documents, and to decline to do so. 354 The fact that the primary judge did inspect the six additional documents the subject of the Epilogue to his reasons tends to reinforce the appropriateness of the primary judge’s approach. In the case of those documents, having regard to their descriptions and (later) dates, his Honour considered it possible that they may be of material assistance to the appellant in the arbitral proceedings. However, upon inspection, his Honour was satisfied that they would not materially advance the appellant’s case beyond what would be apparent from the overt acts of the State and through the largely discoverable documents of the Steering Committee.289 355 In summary, I do not consider that the appellant has made out a basis for impugning the primary judge’s decision to decline to inspect the challenged documents. Ground 2 has not been made out. 356 To the extent that this Court retains an independent discretion to inspect the challenged documents, I would decline to do so for the same reasons the primary judge declined to do so. Other matters 357 The appellant at times complained that the primary judge’s reliance upon confidential affidavit material may have involved a denial of procedural fairness. Whilst I appreciate the difficulties the appellant may have faced in advancing an argument along these lines, it was not a matter pursued in any of its grounds of appeal. As such, I do not consider it necessary to address it in any detail. It is sufficient for me to observe that, having read the confidential affidavit material provided to the primary judge, it did not raise any particular concerns as to the fairness of the procedure adopted. Whilst conscious of the need for a court to proceed with caution in receiving and acting upon information not made available to one of the parties,290 it appears to me that there was good reason to think that the material included in the confidential affidavits, if revealed to the appellant, had the potential to undermine the claims for PII that it was intended to protect. 289 Reasons at [120]-[121]. 290 See, for example, Re Timor Sea Oil & Gas Australia Pty Ltd (in liq) (2020) 389 ALR 545 at [15]-[32] (Leeming JA). -- 85 of 86 -- [2024] SASCA 130 S Doyle JA 82 358 Finally, in relation to the appellant’s application to rely upon fresh evidence, I agree with the joint reasons. Conclusion 359 For the reasons set out, the appeal should be dismissed. -- 86 of 86 --