[2024] SASC 46

Applicant: CPB CONTRACTORS PTY LTD (ABN 98 00 893 667) AND HANSEN YUNCKEN PTY LTD (ABN 38 063 384 056) JOINTLY AND SEVERALLY TRADING AS HYLC JOINT VENTURE Counsel: MR B ROBERTS KC - Solicitor: KING & WOOD MALLESONS (NSW) Respondent: STATE OF SOUTH AUSTRALIA Counsel: MR D O'LEARY SC WITH MS A DOECKE KC - Solicitor: LK LAW Interested Party: CELSUS PTY LTD No Attendance Hearing Date/s: 19/12/2023, 20/02/2024, 22/02/2024 File No/s: CIV-23-012771 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) 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] SASC 46 Judgment of the Honourable Chief Justice Kourakis 28 March 2024 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 - PUBLIC INTEREST IMMUNITY - CLAIM OF PRIVILEGE 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 was an application for the adjudication of various claims of public interest immunity and parliamentary privilege made by the respondent for the purposes of resisting production to the applicant of certain documents discovered in arbitral proceedings. The applicant, comprised of two corporate entities undertaking a joint venture, contracted with the interested party, Celsus Pty Ltd, to perform design and construction work for the proposed renovation of the Royal Adelaide Hospital. That contract existed alongside a separate contractual relationship between the interested party and the respondent, concerned with the design, construction, and operation of the hospital for a fixed term. It was, in essence, the applicant’s contention that, during the course of construction of the hospital, the respondent and the interested party wrongfully prevented it from discharging its contractual obligations and conspired effectively to exclude it from the project moving forward. -- 1 of 31 -- In the underlying arbitral proceedings between the parties, the respondent discovered a number of documents relevant to the issues in dispute, but over which it claimed, varyingly, public interest immunity and parliamentary privilege. Those claims to immunity and privilege were premised, for the most part, on the documents in question either being Cabinet documents, making reference(s) to Cabinet discussions, or relating to the preparation of Cabinet documents such that this would reveal the content of Cabinet documents. The respondent having raised a jurisdictional objection to the arbitrator determining whether its resistance to production of those documents was well-founded, the applicant approached the Court to determine its entitlement to production thereof. Held, dismissing the application: 1. The documents over which the respondent claimed public interest immunity were properly covered thereby, such that the applicant was not entitled to the production and inspection thereof. 2. The documents over which the respondent claimed parliamentary privilege were properly covered thereby, such that the applicant was not entitled to the production and inspection thereof. Adelaide Brighton Cement v South Australia (1999) 75 SASR 209; Commonwealth v Northern Land Council (1993) 176 CLR 604; Sankey v Whitlam (1978) 142 CLR 1, considered. Alister v The Queen (1983-1984) 154 CLR 404, 414-415. Legal Services Commission v Trotter (1990) 54 SASR 74, 84-85. -- 2 of 31 -- CPB CONTRACTORS PTY LTD AND HANSEN YUNCKEN PTY LTD v STATE OF SA [2024] SASC 46 Civil: Application 1 KOURAKIS CJ: This is an application for an adjudication of claims made by the State of public interest immunity and parliamentary privilege in respect of documents discovered in arbitral proceedings which are pending before the Australian Centre for International Commercial Arbitration (ACICA). The State’s claims are supported by open and closed (confidential) affidavits. 2 CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd (HYLC) were unincorporated joint venturers in the construction of the new Royal Adelaide Hospital (nRAH) and, together, the applicant in these proceedings. The respondent, the State of South Australia (the State), and the interested party in this action, Celsus Pty Ltd (Celsus), are also parties to the arbitral proceedings. Celsus is the corporate trustee of the Celsus Trust, and was formerly known as SA Health Partnership Nominees Pty Ltd. Celsus has elected not to participate in this application and does not support either party in these proceedings. The subject-matter of the dispute in the arbitration is the design and construction of the nRAH. 3 The development of the nRAH Project was undertaken by way of a private-public partnership. Celsus contracted with the State, through the South Australian Minister for Health, to design, construct, and operate the nRAH for a fixed 35-year period. One of the two claims made in the arbitral proceeding is Celsus’ claim against the State. The other claim is made by Celsus against HYLC. The arbitrations of those claims are being heard concurrently. The evidence in one arbitration will be taken as evidence in the other. 4 The parties have each given discovery in the arbitral proceedings. This application relates to documents discovered by the State over which it claims public interest immunity or parliamentary privilege, either in whole or in part. The State has produced redacted copies of some documents and has entirely withheld others from production. The applicant seeks the production of those documents, listed in the Updated Challenged Documents Schedule, on an unredacted basis. The State’s position is that the redacted passages of the Updated Challenged Documents Schedule are not relevant or that they do not support the applicant’s case. 5 The applicant seeks the following orders: 1. an order that the Respondent provide to this court in unredacted format the Challenged Documents for inspection; 2. in respect of Challenged Documents entirely withheld from production in the ACICA Arbitrations: -- 3 of 31 -- [2024] SASC 46 Kourakis CJ 2 a. an order that all the Challenged Documents be disclosed on an open basis in the ACICA Arbitrations; or b. in the alternative, an order that certain of the Challenged Documents identifiable by reference to the ‘Document ID’ column of Annexure A be disclosed on an open basis; or c. in the alternative, an order that the Challenged Documents be disclosed on a redacted basis in the ACICA Arbitrations, such redactions to be determined by this court; 3. in respect of Challenged Documents disclosed on a redacted basis in the ACICA Arbitrations: a. an order that the Challenged Documents be disclosed on an open basis in the ACICA Arbitrations; or b. in the alternative, an order that certain of the Challenged Documents identifiable by reference to the ‘Document ID’ column of Annexure A be disclosed on an open basis; or c. in the alternative, an order that redactions to certain of the Challenged Documents identifiable by reference to the ‘Document ID’ column of Annexure A be amended in a manner required by this court; 3A. An order in like terms to the orders set out at above [1]–[3] in respect of any documents that are discovered by the Respondent subject to claims of public interest immunity and/or parliamentary privilege pursuant to order 6 to 10 of the orders made by the Honourable Kevin Lindgren AM KC on 6 December 2023 in ACICA Case Nos. 2018–119 and 2018–124 regarding the Adequacy of Discovery Applications by the Builder and the State. 4. such further or other orders as the court deems fit; 5. costs. 6 For the reasons which follow I uphold the State’s claims of parliamentary privilege and public interest immunity. The contractual relationships 7 The following is the context to HYLC’s claims in the arbitral proceedings. 8 HYLC and Celsus are parties to a contract dated 20 May 2011 for the design and construction of the nRAH (the Construction Contract). The Construction Contract was amended twice, first on 8 August 2011, and again on 31 January 2014. Celsus is also party to a separate project agreement with the South Australian Minister for Health dated 20 May 2011, which was amended on 8 August 2011 and again on 31 January 2014 (the Project Agreement). 9 On or around 20 May 2011, Celsus, the State, and Donald Cant Watts Corke Pty Ltd (DCWC) entered into an independent certifier agreement (the IC Agreement), appointing DCWC as the independent certifier. A Financier Direct -- 4 of 31 -- [2024] SASC 46 Kourakis CJ 3 Deed was entered into by the State, Celsus, and the financiers of the nRAH project, SA Health Partnerships Pty Ltd and ANZ Fiduciary Services Pty Ltd (the financiers). 10 There is no direct contractual relationship between HYLC and the State in relation to the construction of the nRAH. Instead, the State entered into a ‘Builder Direct Deed’ with HYLC in respect of the State’s role in the Construction Contract. 11 The Construction Contract required the applicant to achieve ‘Technical Completion’ (TC) by 19 January 2016, and, not less than 90 days later (18 April 2016), to achieve ‘Commercial Acceptance’ (CA). The Construction Contract provided that, if TC were not achieved by the due date, and there was no extension to the date of CA stipulated in the Construction Contract, HYLC would be liable to pay liquidated damages of $827,072 per day, up to an agreed cap of $184,983,454 (10 per cent of the initial contract price). 12 Prior to September 2015, HYLC notified Celsus of a number of claims, including claims for extensions of time and delay costs. On 17 September 2015, separate deeds of settlement were entered into between HYLC and Celsus, and between the State and Celsus respectively (together the 2015 Settlement Agreements). The 2015 Settlement Agreements resolved HYLC’s extension of time and delay costs claims. They also varied the date of TC to 4 April 2016, and the date of CA to 3 July 2016. The 2015 Settlement Agreements also contained an acknowledgment and an agreement by HYLC that it would be liable to pay liquidated damages, if TC and CA were not achieved by the revised dates. 13 The State established the nRAH Project Steering Committee (the Steering Committee) as its peak decision-making body for the nRAH project. The membership of the Steering Committee comprised senior officers of the executive of the State. They included the Chief Executive Officers of the Department of Health and Aging, the Department of Planning, Transport and Infrastructure, the Under Treasurer, and the Deputy Crown Solicitor. Its terms of reference included: The Steering Committee is the peak decision making body for the New RAH Project and is chaired by the Chief Executive (CE), DHA who is accountable for the success of the project. The Steering Committee meets at least monthly and focuses on decisions that have a material impact on the business case for the project. The membership of the Steering Committee includes senior representatives of relevant Government stakeholders, whose role is to: • Monitor and provide advice and direction to the project and ensure it is delivered against the business case; • Support decision making on any matter than could have a material impact on the project business case, including key document approvals, issues, risks, benefits, scope etc; -- 5 of 31 -- [2024] SASC 46 Kourakis CJ 4 • Identify policy and Government commitment implications; and • Support stakeholder engagement and issues management. 14 I will refer to the roles so identified as the Steering Committee’s ‘project management’ role. The Steering Committee was also charged with ‘making submissions to Cabinet on any decisions that have a material impact on the business case for the project’. I will refer to that role of the Steering Committee as its ‘Cabinet advisory’ role. 15 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. 16 The work of the Steering Committee was assisted by a ‘Commercial Strategy Team’ headed by Mr Chris Gray, an Assistant Crown Solicitor. The Commercial Strategy Team included the persons named in the following table, which also shows the office, and responsibilities, of each of them in the middle and righthand side columns respectively: Name Title Accountability/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 supports stakeholder management. Don Frater Deputy Chief Executive, Finance and Corporate Services Accountable for system wide finance and business services matters (incl. eHS & PSCM). Michael Deegan Chief Executive Officer, DPTI Accountable for effective administration of the Project Agreement with SA Health Partnership up to CA, 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 -- 6 of 31 -- [2024] SASC 46 Kourakis CJ 5 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 Provides legal oversight and advice on contractual and other relevant matters. Paul Myers Project Director Accountable for Contract Administration and Management through to [CA] including FTP Management and Coordination. 17 Ms Carr, a Project Director of DPTI, regularly reported on the progress of the nRAH Project to the Minister for Health and to the Steering Committee. 18 At a meeting of the Steering Committee held on 27 January 2016, Celsus representatives reported that TC would not be achieved by 4 April 2016, the revised date stipulated in the 2015 Settlement Agreements. Celsus also advised that TC would be delayed by two months, despite HYLC’s view that it might still manage to achieve TC on 4 April 2016. 19 On 10 February 2016, a paper recommending the issuing of Default Notices to HYLC was presented to and endorsed by the Steering Committee. 20 On 9 March 2016, the Steering Committee endorsed the position that the State would not make any concession to Celsus on its existing contractual obligations to meet TC by 4 April 2016. By 16 March 2016, the nRAH Project was behind schedule by an estimated three months. 21 On 8 November 2016, HYLC forwarded a Notice of Claimed Entitlement to Celsus, which set out its explanations for not complying with the deadlines on the nRAH Project. Its reasons included: (a) failures and misrepresentations by the State in relation to the Enterprise Patient Administration System (EPAS); (b) the failure by DCWC (the independent certifier) to provide its services in accordance with its obligations; (c) the notification and conduct of the State’s works; (d) delays and maladministration in the processing and approval of works and modifications by the State and Celsus; (e) the wrongful rejection of HYLC’s extension of time requests by the State and Celsus; and -- 7 of 31 -- [2024] SASC 46 Kourakis CJ 6 (f) the unlawful issuing of default notices by the State and Celsus. 22 The State admits receipt of the Notice but denies the allegations. 23 From January to March 2017, the State, Celsus, and the financiers entered into agreements without the consent of HYLC. The agreements comprised: (a) an agreement in relation to the completion of the nRAH Project reached after a mediation (the Mediated Agreement); (b) a deed to embody the effect of the Mediated Agreement (Completion Deed); (c) a purported Cure Plan to give effect to the obligations set out in the Mediated Agreement and/or the Completion Deed (Purported Cure Plan); and (d) a deed known as the Consents & Acknowledgment Deed. 24 The State contends that TC was achieved by Celsus on 15 March 2017 and CA by 13 June 2017 in accordance with the amended technical completion criteria under the Mediated Agreement, the Completion Deed and the purported Cure Plan. HYLC contends that TC and CA were achieved, but does not reference those arrangements. 25 The new Royal Adelaide Hospital commenced operation on 5 September 2017. Privilege claims made in the arbitration 26 Hearings were held in December 2022 and again in September 2023 before the arbitrator, the Honourable Roger Gyles AO KC (the arbitrator), to resolve disputes over the claims for privilege and immunity made by the State. The December 2022 hearing concerned the parties’ first tranche of discovered documents, and the September 2023 hearing concerned the parties’ second tranche of discovered documents. 27 On 24 April 2023, orders were made which required the parties to ‘identify the documents in relation to which a party intends to challenge another party’s claim for privilege’. On 11 August 2023, HYLC notified the State of its challenges to approximately 200 documents subject to claims of parliamentary privilege and 115 documents subject to claims of public interest immunity. Relevantly to this application, HYLC challenged the State’s claims for privilege in the following two categories: (a) Parliamentary privilege: not apparent on the face of the available information whether the privilege would apply; and -- 8 of 31 -- [2024] SASC 46 Kourakis CJ 7 (b) Public interest immunity: not apparent on the face of the available information whether the privilege would apply. 28 On 16 August 2023, the State served documents to support its privilege claim, which comprised written submissions and a supporting affidavit of Ms Lisa Loechel. The State made the following submissions in respect to the claim of privilege: 4.1 the State’s claims for privilege are properly made [and] have been the subject of multiple rounds of review by the State’s solicitors (LK); 4.2 in respect of the State’s claims of LPP, the communications were made for the dominant purpose of the obtaining or provision of legal advice or relating to legal proceedings (actual or anticipated), such that the claims should be upheld; 4.3 in respect of the State’s claims of WPP, the communications were part of, or reasonably incidental to, negotiations, or record negotiations and decisions made to resolve a dispute, including internal communications regarding the negotiations. Further no exceptions apply in respect of any of those communications; 4.4 in respect of the State’s claims of PII, the documents refer to or contain the contents of Cabinet documents or are Cabinet submissions, and therefore contain material disclosing Cabinet deliberations such that PII applies; and 4.5 in respect of the State’s claims of PP, the documents comprise parliamentary briefing notes prepared for the Minister of Health to use in the South Australian parliament such that PP applies. 29 On 5 September 2023, HYLC served submissions challenging the State’s claim for parliamentary privilege and public interest immunity. HYLC’s primary contentions were: 161. The State cannot hide behind its claims of parliamentary privilege so as to preclude the Arbitrator inspecting the documents identified in paragraph 160 above in circumstances where those documents do not appear to have a sufficiently close and clear connection with proceedings of Parliament. … 186. The State cannot hide behind its claims of public interest immunity so as to preclude the Arbitrator inspecting the documents identified in paragraph 185 above in circumstances where those documents do not appear to be Cabinet documents or Cabinet submissions or otherwise attract public interest immunity. 30 At the hearing in September 2023 before the arbitrator, the State submitted that the arbitrator lacked jurisdiction to inspect the relevant documents and determine claims. The applicant did not prosecute its challenge to the State’s privilege and immunity claims in the arbitral proceeding but instead brought this application. -- 9 of 31 -- [2024] SASC 46 Kourakis CJ 8 The controversies before the arbitrator 31 The arbitral proceedings were commenced in 2018. In summary, HYLC 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). The State denies HYLC’s claim and contends that the dispute arose out of circumstances in which HYLC was 421 days late in meeting the CA date and was therefore liable to pay mandatory liquidated damages in the amount of approximately $185 million to Celsus. 32 Paragraph [53] of the 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: 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 Project Co and the Builder achieving TC and CA; (b) failing to cooperate with Project Co and the Builder; (c) delaying the achievement of TC and CA (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) Project Co, 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 TC, to withdraw all EOT claims against the State and to procure the cessation of further claims being made by the Builder; and (i) inducing Project Co 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 Project Co 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 Project Co by reason of the State’s breach of the Upstream Duty of Cooperation. -- 10 of 31 -- [2024] SASC 46 Kourakis CJ 9 53.4 Further, by reason of the matters pleaded below, Project Co breached the Downstream Duty of Cooperation and clause 1.8 of the Construction Contract. 33 Paragraph [55] of HYLC’s claim pleads that, from at latest November 2016, the State determined to hinder Celsus and HYLC from achieving TC and CA and not to cooperate with HYLC and Celsus in the discharge of the Construction Contract. It also pleaded that the State determined to pursue compensation of about $160 million when it knew it had not reasonable entitlement to that sum and to procure Celsus to terminate HYLC’s ongoing involvement in the nRAH project. 34 HYLC also contended that the State: (a) engaged in a course of conduct whereby the State’s failures were hidden from the Builder with the State delaying TC and CA 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 – see section F.2.4 below); and (b) entered into a series of unlawful contracts with Celsus in breach of, and interfering with, the existing contractual framework for the Project so as to change the regime for completion of the nRAH, thereby masking its own failures and depriving the Builder of its entitlements. 35 The State denies the allegations. It contends that they are not supported by any evidence and are inconsistent with the State’s attempt to facilitate the achievement of TC earlier than would otherwise have been the case. 36 Another of the controversies before the Arbitrator concerns the State’s electronic patient administration system for nRAH, known as the Enterprise Patient Administration System (EPAS). HYLC contends on this issue that the State had a contractual obligation to provide EPAS prior to TC on 19 January 2016 as part of the ‘State Works’. HYLC also contends that Celsus was contractually bound to ensure that the State complied with its contractual obligation to provide EPAS to HYLC prior to TC as part of the State Works. HYLC’s case is that it was a necessary precondition to HYLC achieving TC that it demonstrate the integration of discrete applications of Celsus’ Network with discrete applications on the State Network (including EPAS). In order to demonstrate the integration of discrete applications on Celsus’ Network with discrete applications on the State Network (including EPAS) HYLC required the State to provide a fully functional production and configured versions of EPAS in sufficient time for HYLC to perform necessary testing before TC. 37 The State denies that it undertook any such obligation, pointing out that neither the Project Agreement nor the Construction Agreement referred to EPAS at all. The State contends that its obligation was limited to providing an interface -- 11 of 31 -- [2024] SASC 46 Kourakis CJ 10 and to allowing such access to its applications as was necessary to allow an interface with Celsus’ ‘integration engine’. It pleads that that interface was provided by September 2015. 38 HYLC also claims that the State represented that it would provide the EPAS system prior to TC. HYLC contends that in the period between July to September 2015, and immediately prior to the 2015 Settlement Agreements, the State and Celsus represented to HYLC that EPAS for nRAH would be provided to HYLC by 30 September 2015. HYLC contends that it relied on the representation when it agreed to an amended date for TC of 4 April 2016 in the Settlement Agreements. 39 HYLC pleads that, at the time of entry into the Settlement Agreements, the State and Project Co had no proper basis for representing that EPAS for nRAH would be provided to NYLC by 30 September 2015 and, in any event, prior to TC and that the State and Celsus knew, or ought to have known, that EPAS for nRAH would not be provided by 30 September 2015. 40 HYLC alleges that EPAS was not provided by 30 September 2015 and claims damages for the State’s failure to provide EPAS for nRAH. HYLC also claims that, by reason of the State’s failure to provide EPAS, it was prevented from achieving TC and is therefore entitled to relief. 41 The State denies that any such representation was made and contends that HYLC never suggested that it required access to the EPAS system for any purpose. It also contends, in the alternative, that the witnesses on whose evidence HYLC relies did not have authority to speak on, or receive assurances on behalf of, HYLC. It further contends that the meetings in which those persons allege that the representations were made were informal. 42 It is common ground, therefore, that the documents relating to the EPAS system may have relevance to the controversies in the arbitral proceeding insofar as they may disclose: 1. deceptive and misleading conduct leading up to the settlement in September 2015; 2. that the contractual relationships between the parties were such as to give the applicant a reasonable expectation of being kept informed of the state of development of the EPAS system so that it could plan its integration into the IT systems to be incorporated to the build of the nRAH. 43 Another of the controversies before the arbitrator are the claims by HYLC against the State for additional costs it incurred because it encountered unknown not known pre-existing contamination and latent ground conditions. HYLC’s claim was not accepted by Celsus. Neither were its claims for extensions of time and prolongation costs. In particular, HYLC complains that the State and Celsus -- 12 of 31 -- [2024] SASC 46 Kourakis CJ 11 failed to issue appropriate time cost fee directions to the IC, instructing it to determine the Builder’s claim. The failure to give those directions was in breach of the obligation of the State and Celsus to cooperate in the discharge of the Construction Contract. HYLC also pleads that, by reason of the contamination and latent ground conditions, it changed its construction schedule, resulting in lost productivity. It complains that the interim settlement agreements on those issues were procured by misrepresentation and unconscionable conduct. 44 The State denies that the alleged contamination was contamination within the meaning of the Project Agreement and alleges that HYLC did not follow the agreed site remediation plan. The State contends that the nRAH was constructed on a former railyard. HYLC was provided with detailed site investigation reports to guide the remediation of the site. HYLC’s remediation management plan formed part of its bid and the resulting contract. The State denies that HYLC discovered unknown contamination. It contends that HYLC’s claim relates largely to disposing of waste soil which had to be excavated from the site in any event to reach the required ‘bench’ levels for construction and the cost associated with its unilateral and unauthorised decision to alter the remediation strategy. 45 The State contends that Celsus was not a disclosed agent, a ‘mere post box’, or a ‘pass-through vehicle’ between the State and HYLC. The State pleads that Celsus had represented that it had an experienced and expert management team. The State also relies on the settlement of HYLC’s contamination claim in the Upstream Settlement Agreement entered into on 17 September 2015. Taxonomy of public interest immunity claims 46 The State interest immunity claims over the documents by reference to the following categories: 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 contains 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. Direct quotes from Cabinet documents, documents that disclose the nature or content of Cabinet documents, briefing notes, e-mails. -- 13 of 31 -- [2024] SASC 46 Kourakis CJ 12 47 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. 48 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. 49 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. Legal principles 50 In Alister v The Queen1 Gibbs CJ commented on the division of opinion in the House of Lords on the necessary condition which must be satisfied before a judge would be warranted to inspect a document to which public interest immunity attaches. Gibbs CJ articulated the ‘on the cards’ test for inspection of documents in criminal cases. Both Burmah Oil Co. Ltd v. Bank of England and Air Canada v Secretary of State for Trade support the view that where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v Secretary of State for Trade [at 529], he must have “some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition”. In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v Whitlam [at 42, 62]), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere “fishing” expedition can never be allowed, it may be enough that it appears to be “on the cards” that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report would assist the accused. To refuse discovery 1 (1983-1984)154 CLR 404, 414-415. -- 14 of 31 -- [2024] SASC 46 Kourakis CJ 13 only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done. (Underlining added) 51 I observe that the underlined precondition to inspecting documents covered by public interest immunity laid down in the Air Canada decision is something more than direct relevance to an issue. 52 In Legal Services Commission v Trotter2 Cox J considered the same English authorities in the context of a civil claim: There is a question - indeed, it was the question that Gibbs CJ went on to consider in Alister v The Queen whether the court should look at the disputed documents to assist it in reaching its decision. There is a conflict of judicial opinion on the subject. In Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980] AC 1090, the House of Lords was divided on the question whether it was possible to resolve the Crown's claim for public interest immunity from discovery without inspecting the documents. The majority held that it was not possible to decide whether the balance of public interest lay for or against disclosure without an inspection. Their Lordships therefore inspected the documents for themselves. (There had been no inspection by the judge of first instance, but there had been by the Court of Appeal.) In inspecting the documents in this way, in order to decide whether or not they should be made available in the litigation, the House of Lords was following precedents that can be traced back through Conway v Rimmer to the Privy Council decision in Robinson v South Australia State (No 2) [1931] AC 704. The Burmah Oil case was followed by the Court of Appeal in Campbell v Tameside Metropolitan Borough Council [1982] 1 QB 1065, where a class immunity objection was overruled. However, in Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394, the House of Lords took a different view. That was a Crown claim for a class immunity, and the plaintiffs' claim for discovery and production rested upon their assertion that the documents were relevant and were necessary for “disposing fairly of the cause or matter” as provided by the relevant rules of court. The majority held that, where such a claim was made, the judge should not inspect the documents unless he was satisfied that they contained material that would give substantial support to the party seeking disclosure on an issue which arose in the case. The minority test was somewhat wider but still required a favourable assessment by the judge before he could make an inspection. The decision stands as a strong discouragement of a mere fishing expedition. The Burmah Oil and Air Canada cases were both civil cases, and they were distinguished by the High Court in Alister v The Queen for that reason. The High Court had inspected the disputed documents for itself in Sankey v Whitlam and it took the same course in Alister v The Queen. Both of those cases, of course, related to criminal proceedings. In Casley-Smith v District Council of Stirling (supra), a civil action in this Court, the Full Court confirmed the Court's power to inspect the documents that were produced by a third party before trial under r 60 of the Supreme Court Rules but in respect of which a number of objections, including public interest class immunity, were taken. The members of the Full Court looked at the documents for themselves, as the Master and Perry J had before them. Certainly there are disadvantages in making a court inspection of documents that may possibly, as a result, never be seen by at least one party to the litigation — see Gaskin v Liverpool City Council [1980] 1 WLR 1549, per Megaw LJ (at 1555); Alister v The Queen (1984) 154 CLR 404 at 469 — but that course may simply 2 (1990) 54 SASR 74, 84-85 -- 15 of 31 -- [2024] SASC 46 Kourakis CJ 14 represent in some circumstances the lesser of two evils. Not all of Justice's balancing exercises are best carried out blindfolded. (Underlining added) 53 I observe again that the test for inspection derived from the Air Canada decision by Cox J is something more than the direct relevance test. 54 In Commonwealth v Northern Land Council (Northern Land Council),3 Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ discussed the problematic features of inspecting documents in respect of which the Crown claims that their very disclosure is ‘detrimental to the public interest’:4 In a case where a document fell into a class of document the disclosure of which would be injurious to the public interest regardless of the contents, a court could conclude that “disclosure would not really be detrimental to the public interest” only in circumstances where there was a competing public interest, such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality. 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 recognizing 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. Obviously, there are extremely strong considerations of public policy weighing against their production regardless of how significant disclosure of their contents might be to the case of one side or the other in the proceedings in which the claim for immunity is raised. However, as we have said, the immunity which membership of the class confers is not absolute and that is so even if, as in the case of records of Cabinet deliberations, the highest degree of protection against disclosure is warranted. Nevertheless, where it is established that a document belongs to a class which attracts immunity, a court will lean initially against ordering disclosure. Whether the circumstances of a particular case will be sufficient to displace the considerations which favour immunity depends to a large extent upon the nature of the class. 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. 3 (1993) 176 CLR 604. 4 (1993) 176 CLR 604, 617-18. -- 16 of 31 -- [2024] SASC 46 Kourakis CJ 15 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. … (Footnotes omitted, underling added) 55 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. 56 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. 57 In Northern Land Council, the plurality made the following observations about weighing the competing public interest in disclosure in order to assist in the administration of justice:5 The present case is a civil case. Although the Northern Land Council seeks to attack the agreement upon the separate ground of unconscionable behaviour on the part of the Commonwealth, the other claims of unfairness, breach of fiduciary duty, duress and the exercise of undue influence are in one sense all forms of unconscionable conduct. The claims are alleged to arise out of the position of relative disadvantage which the Northern Land Council occupied in comparison with the Commonwealth, having regard to its experience and the resources available to it; the course of negotiations leading to the conclusion of the agreement; the refusal of the Commonwealth to supply documents relating to the mining of the Ranger land which were in its possession; various misrepresentations made by the Commonwealth; and the inadequacy of the agreement in the events which have transpired. The Northern Land Council cannot be dependent upon access to the deliberations of Cabinet for proof of these matters, which occurred outside the confines of the Cabinet room. No doubt access to the records of the deliberations of Cabinet may disclose material which is relevant in the extended sense which is adopted for the purpose of discovery. Indeed, it is necessary to assume as much because the records were discovered. But in no way does it appear that access to those records is crucial to the conduct by the Northern Land Council of its case. True it is that some years have passed since the agreement was executed and the government has changed in the meantime, but it cannot be said that the matters which are the subject of the agreement have ceased to be current or controversial. It cannot, in our view, be said that exceptional circumstances exist which would justify the denial of the claim of public interest immunity, as a class claim, for the documents in question. (Footnotes omitted, underlining added) 5 (1993) 176 CLR 604, 619-20. -- 17 of 31 -- [2024] SASC 46 Kourakis CJ 16 58 Again, even though the documents sought in Northern Land Council concerned Cabinet deliberations, in any balancing exercise, between the relative importance of confidentiality on the one hand and the extent to which the administration of justice might be compromised on the other, both must be considered in the particularity of the circumstances of each. 59 In Northern Land Council, Toohey J was the only member of the Court who considered whether there is an additional ‘threshold’ which an applicant for production must pass in the case of privileged documents before a judge is required to undertake the exercise of balancing the competing public interests. In dealing with the Commonwealth’s submission that the applicant must demonstrate something more than that the documents may advance its case or damage the case against it, Toohey J commented that:6 While the rules of court do not offer a threshold test, they do point up that the production of documents is part of the adversarial process, aimed at ensuring fairness as between the parties in the resolution of their dispute. In the ordinary course fairness demands that each party produce for inspection documents which relate to any issue in the action. Public interest immunity recognizes that there is a public interest to be protected, sometimes at the cost of withholding documents that may advance the case of the other party or damage the case of the party in possession of the documents. Once it is apparent that there are documents that fall into one or other of those categories (that is, that there is not simply a fishing expedition) and the court is satisfied that an order for the production of documents is necessary in the sense discussed, it is hard to see why there should be a further threshold onus on the party seeking production. … … It follows that once the existence and relevance of documents has been demonstrated (their inclusion in an affidavit of documents will satisfy that requirement), 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, that the public interest immunity should prevail without any examination of the documents. Or it may be apparent that, while the documents fall short of that description, their confidentiality is important to government and their relevance to the issues in the action is peripheral. However, in most cases it will be necessary for the court to take the next step in order to resolve the competing public interests. What is required to persuade the court to undertake the task of balancing the competing public interests necessarily depends on the circumstances. But once it is accepted that absolute immunity does not attach to any category of documents, the class into which documents fall serves to point up the likely character of the documents rather than to conclude the matter of their production. (Footnotes omitted, underlining added) 60 It is important to appreciate that, in the above passages, Toohey J was first considering the threshold which must be crossed before a Judge needs to embark 6 (1993) 176 CLR 604, 634-36. -- 18 of 31 -- [2024] SASC 46 Kourakis CJ 17 on a balancing exercise at all. Indeed, that is the heading of that part of his Honour’s judgment.7 In that respect, Toohey held that it was sufficient that the documents may advance the applicant’s case or damage the case of the opposing party. Once that is shown, the applicant has established a case for production, which then requires the Court to undertake the exercise. I acknowledge that his Honour did refer to an examination of the documents in that context, but it is clear enough, with respect, that his Honour was primarily concerned with the balancing exercise, which might involve an inspection of the document. So much is clear from the later passages in his Honour’s judgment under the heading ‘Should the Judge have inspected the documents before ordering production?’ in which his Honour recognised that the decision whether or not to inspect a document was a discretionary one.8 61 In Adelaide Brighton Cement v South Australia, Debelle J defined Cabinet documents to mean:9 (1) Cabinet minutes or other records of Cabinet discussions and records of discussions between heads of departments; (2) papers prepared as submissions to Cabinet; and (3) any documents which relate to framing of government policy at a high level. 62 His Honour explained that since the High Court’s decision in Sankey v Whitlam,10 absolute immunity does not attach to any of these categories. His Honour observed that the protection from production does not necessarily endure forever, and that documents which might at one time be immune from disclosure may later be disclosed if circumstances have changed. Debelle J recognised that the amenability of documents to production depends on a range of factors, which include the status of the documents; the subject matter of the documents; the age of the documents; and whether the documents have already been published. 63 Debelle J then articulated the following principles:11 Some relevant principles The following propositions are relevant to the issues in this application and have been drawn from the cases just mentioned. (1) The general rule is that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it: Sankey v Whitlam at 38. 7 P 631. 8 (1993) 176 CLR 604, 635-36. 9 (1999) 75 SASR 209, 212 [8]-[9]. 10 (1978) 142 CLR 1. 11 (1999) 75 SASR 209, 212 [9(1)-(2)]. -- 19 of 31 -- [2024] SASC 46 Kourakis CJ 18 (2) However, the court recognises that there are two aspects to the public interest which may conflict. They were described by Lord Reid in Conway v Rimmer at 940 in these terms: “There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.” … 64 Debelle J’s consideration of the circumstances in which it may be appropriate for a judge to inspect documents in respect of which public interest immunity or parliamentary privilege is claimed is as follows:12 It is now beyond question that the Court has power to inspect the document or documents privately: Sankey v Whitlam at 46. There is, however, a question whether the court should look at the documents for assistance in the balancing exercise, that is to say, when weighing the two conflicting aspects of the public interest. In some cases, the Court might be able to determine that the public interest requires that the documents be withheld from production without inspection of the documents: see Commonwealth v Northern Land Council where it was held that documents recording the deliberations of Cabinet on topics which were current and controversial would not be disclosed except in quite exceptional circumstances. It was unnecessary in that case to inspect the documents to determine the claim for privilege. Only in cases where the ministerial affidavit demonstrates with sufficient particularity the nature and the significance of the documents both in terms of any need to preserve their confidentiality on the one hand and for the actual litigation on the other is it likely that it will be possible to reach such a conclusion: cf Woodhouse P in Fletcher Timber Ltd v Attorney-General at 295. (Underlining added) 65 In my respectful opinion the underlined passage correctly states the ambit of the discretion which a judge exercises in deciding whether or not to inspect any Cabinet documents. Debelle J continued: In almost all other cases, an inspection will be necessary. There is a question whether the applicant for production of the document must satisfy some threshold test before the court inspects the documents. Plainly, the documents must be relevant. The question is whether any further or more stringent test is necessary … As Toohey J pointed out in Commonwealth v Northern Land Council at 634-635, the process of discovery (in this Court, the list of documents) demonstrates the existence and relevance of the documents to the issues in the action. The application for production for inspection is a usual concomitant of the process of discovery. It would seem, therefore, that where there is a claim for privilege on the ground of public interest immunity, the Court should without more inspect the documents for the purpose of weighing the competing public interests. The decisions in Burmah Oil and Air Canada suggest that there may be a further test. They suggest that in England a judge should not look at the documents unless he is persuaded that an inspection would be likely to satisfy him that he should order production, that the judge should have some concrete ground for belief of that fact which takes the case beyond a mere fishing expedition, to use the words of Lord Wilberforce in Air Canada at 439. 12 (1999) 75 SASR 209, 214 [9(9)]. -- 20 of 31 -- [2024] SASC 46 Kourakis CJ 19 Burmah Oil and Air Canada were cases in which the documents were sought in civil proceedings. There was a division of opinion in the House of Lords whether, before inspection is ordered, the document should appear likely to support the case of the parties seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings. In Air Canada the majority favoured the former view. The High Court has not had occasion to consider the question in civil proceedings. Only Toohey J had to consider the issue in Commonwealth v Northern Land Council as the question did not fall for examination on the approach taken by the majority. It must be remembered that the rules in England as to discovery are not as liberal as those in this State and in other jurisdictions. Order 24 r 8 of the Rules of Court in England requires discovery only if disclosure is necessary “for disposing fairly of the cause or matter or for savings costs”. Rule 58.01 of the Rules of this Court requires documents to be discovered if they are documents “relating to any matter in question in the action”. For these reasons, the two English decisions may be distinguished. The procedure of issuing subpoenas of documents for production may lead to concerns as to fishing and Alister v The Queen was such a case. Where the parties have exchanged lists of documents concerns as to fishing will arise only if a party seeks documents which have not been discovered. That is not the position in this application. Concerns as to fishing and the principles to be applied when a party subpoenas documents may, therefore, be put to one side. … 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. (Underlining added) 66 HYLC 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. 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. -- 21 of 31 -- [2024] SASC 46 Kourakis CJ 20 Consideration of individual documents 67 I now move to consider the challenges to the State’s claims of public interest immunity and parliamentary privilege made by the State in respect of particular documents. 68 I deal in detail with the documents in respect of which submissions were put to me. I have considered those submissions in evaluating the claims of public interest immunity made over all the documents in respect of which the State’s claims are challenged. Documents 1A – 8A 69 Document 1A is dated 15 May 2011 and is entitled a ‘Briefing Note EPAS Program Board Out of Session’. Disclosed parts of the documents show that it is concerned with the fitness for purpose of EPAS and an estimation of its cost. The testing of the product in a ‘pre-production environment’ is discussed. Similar text and redactions appear on document 2A, dated 19 May 2011, which, on its face, is an email sent by the chair of the EPAS Program Board, Mr David Swan. It refers to the desirably of SA Health executing contracts by 31 May 2011 in order to secure the strongest ‘Allscripts’ team to support and facilitate the pre-production planning activities. Category A2 and A3 objections are taken to the production of those documents. 70 Documents 3A to 7A are dated 21 November 2011. Document 3A is described as an email entitled ‘Business Case’ sent by Ms Pam Zervas, who was then the Acting Business Change Director of EPAS. Documents 4A to 7A are attachments to that email. Varying category A1 and A3 objections are taken to disclosure of those documents. 71 Ms Zervas’s email was sent to David Swan, the Chief Executive of the Department of Health, to a number of other senior executives of the Department of Health, and to two external consultants. The titles of the attachments are described in an annexure ‘RSG’ to the open affidavit of Ms Green of 8 December 2023 as a Cabinet coversheet, a Ministerial Brief on an EPAS Cabinet submission, a Cabinet submission, and ‘version 5’ of an EPAS business case. I find from the descriptions of the documents, and on the closed affidavit of Ms Green of 8 December 2023, that they fall within category A3. 72 Document 8A is described as the ‘Final EPAS Business Case’. It is dated 2 July 2012. Category A1 andA2 objections are taken to production of the redacted parts of that document. I infer from the timing of the documents that the documents attached to Ms Zervas’ email of 21 November 2011 were developed into the final business case which is document 8A. It is not surprising that full disclosure would reveal information provided to Cabinet, and, therefore, the nature of its deliberations and indicate decisions which it made, or did not make, on the business cases. -- 22 of 31 -- [2024] SASC 46 Kourakis CJ 21 73 The confidential affidavit of Ms Green sworn on 8 December 2023 is consistent with the inferences available on the face of the descriptions of documents 3A to 8A and materially supports the claims made in respect of those documents. 74 Documents 1A and 2A predate the development of the business case in 2011 by about six months. Plainly, they cannot reveal anything about the Cabinet decisions and deliberations which in fact took place on the submission of the finalised business case to Cabinet. However, it cannot be assumed that there were not earlier Cabinet decisions on the development of a business case. Indeed, it can be expected that there were. In that respect I note that a paragraph of document 8A, which was not redacted, reveals that in November 2010 Cabinet was asked to note the selection and imminent public announcement that ‘Allscripts’ was the preferred software vendor for EPAS. 75 I am satisfied on the basis of the confidential affidavit of Robyn Green sworn on 8 December 2023,13 the disclosed contents of documents 1A and 2A, and the position held by Ms Zervas, that her email of 21 November 2011, together with the attached documents, relate to 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. 76 The documents having been disclosed, their relevance can be accepted. However, the materiality of the documents to a just determination of the controversies referred to arbitration and their probative weight is another thing altogether. 77 Documents 1A to 8A predate the communications around the 2015 Settlement Agreements but could possibly contain information which disproves representations made at about that time. Nonetheless, documents which were prepared to assist Cabinet to make decisions on the EPAS business case, and whether to approve expenditure for the development of the EPAS system, are highly unlikely to do so. The nature of a business case for a complex IT system is largely predictive and aspirational. What is thought to be the case at the beginning of a complex IT project might later be found in fact not to be the case. Nor is it at all likely that the documents would contain information that would have been the subject of a contractual obligation to disclose at a much later time. 78 I am satisfied that documents prepared for the purposes of informing Cabinet’s consideration of the business case for developing and installing EPAS is 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. 13 FDN 23. -- 23 of 31 -- [2024] SASC 46 Kourakis CJ 22 79 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.14 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. 80 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. 81 Unless a reasonably high level of confidentiality is maintained, defensive advice and decisions may result in the failure to take up valuable opportunities. 82 The balancing of the competing public interests falls in favour of the State’s claims. 83 I therefore uphold the State’s public interest immunity claims. Document 12A 84 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. 85 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 HYLC 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. 14 See, e.g., Spencer v Commonwealth [2012] FCA 637, [11]-[16] (Emmett J). -- 24 of 31 -- [2024] SASC 46 Kourakis CJ 23 86 The balance of considerations lies against disclosure. I uphold the State’s public interest immunity claims. Document 15A 87 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. 88 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 HYLC 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. 89 I uphold the State’s public interest immunity claim. Documents 30A to 37A 90 Documents 30A to 37A comprise the RAH steering committee agenda and papers between 25 June 2014 and 10 August 2014. Category A3 claims are made over all but two documents. A category A2 claim is made in respect of document 30A. Category A3 claims are made over documents 30A, 31A, 32A and 33A. The redacted parts of the documents are said to be reports, or references to reports, which were provided to Cabinet. 91 I am satisfied on the basis of the confidential affidavits of Ms Green that the redacted portions relate to matters which the Steering Committee was considering for the purpose of inclusion in a Cabinet document for consideration and decision by Cabinet. 92 Two of the documents bear titles which relate to site safety. Others relate to remediation of the site. Information on site safety is very unlikely to materially assist HYLC. The controversy over contamination on the site will be determined on the objective construction of the contractual documentation and the actual levels of contamination. 93 I uphold the State’s claim to public interest immunity over documents 30A to 37A. -- 25 of 31 -- [2024] SASC 46 Kourakis CJ 24 Document 46A 94 Document 46A is an EPAS Program Board Briefing Note dated 13 November 2014. A category A3 objection is made. I am satisfied that the document is one produced and created for the purpose of preparing Cabinet documentation. Even if it be the case that the briefing note refers to a report provided by an external consultant for the purposes of the Steering Committee project management role, I am satisfied that it would disclose information put before Cabinet, if the document were provided in an unredacted form. I am also satisfied having regard to the subject matter of the note that it is most unlikely to provide material assistance in support of HYLC’s claims. 95 I uphold the State’s public interest immunity claim. Documents 79A, 93A and 95A 96 Documents 79A, 93A, and 95A are EPAS Program Board packs and EPAS Program Status reports. The documents are dated 9 October, 18 May 2016 and 20 September 2016. 97 Document 95A is part of an EPAS Program Status Report. A section on page 3 is headed ‘Benefits Summary’. HYLC contends that it relates to the wrongful conduct claim, which is a course of conduct alleged to have commenced on 2 November 2016. On the basis of the confidential information, I am satisfied that the single sentence redacted reveals the content of Cabinet documents. Its description as a ‘Report’ does not mean that it is the report of an external consultant. 98 I am satisfied on the basis of the confidential affidavit of Ms Green that these documents they fall within the categories A2 and A3. 99 The documents were created after the 2015 Settlement Agreements. They can only have limited relevance to any of HYLC’s claim that misleading representations were made. Document 96A 100 Ms Green’s confidential affidavit satisfies me that the redacted portions of document 96A are the nRAH Steering Committee agenda and papers for 26 October 2016 which refer to Cabinet deliberations and documents which had been before Cabinet. Documents 57A, 61A and 65A 101 Mr Roberts relied on documents 57A, 61A, and 65A to contend that part of the minutes of the EPAS Board meeting in document 57A which were initially redacted were subsequently disclosed with the progressive removal of those redactions in documents 61A and 65A. Mr Roberts contended that the documents showed that claims for immunity have been, at least in respect to those documents, withdrawn or waived. -- 26 of 31 -- [2024] SASC 46 Kourakis CJ 25 102 Mr Roberts submitted:15 Now, as I say, it might be said against us that that claim is no longer pressed. It might have been recognised as something that wasn’t properly made and your Honour, on inspection, might find that those documents are quite different, but that was previously the subject of a public interest immunity claim on the same foundation of a to and from Cabinet communication as a secondary reference in committee minutes and the like. 103 Document 57A is dated 8 April 2015. There are redactions under the headings ‘Unconfirmed Minutes’ and ‘Update’. Document 61A is dated 15 May 2015 and is an extract of what is described in the Schedule to Ms Green’s open affidavit of 8 December 2023 as the confirmed minutes of a meeting, and records that an update was completed and ‘can be progressed to Treasury’. Document 65A is an extract from what is described as confirmed minutes, dated 1 July 2015. Under the heading ‘Update’, it records that an ‘Action’ relating to the EPAS program was ‘closed May 2015’. It also records other updates as of 8 May 2015 and 16 April 2015. 104 I was informed in open court by counsel for the State that the documents 57A, 61A, and 65A were not the same document and that no redactions had been removed. 105 I do not accept HYLC’s submission that an inference can be drawn from those documents that the updates seen in later documents had been redacted in document 57A. The use of similar terms and formats for updates and actions on matters arising from previous meetings is to be expected. Moreover, the draft minutes and the confirmed minutes are different documents. The confidential affidavit of Ms Green is consistent with my analysis of the documents on their face. 106 I reject the submission that the documents show an acceptance that a redaction was not properly made and the subsequent release of the same document with fewer redactions. I reject as mere speculation the further submission premised on that inference, that the unjustified earlier redaction reflects a misunderstanding of the proper treatment of reports received in the project management role of the Steering Committee which happens to have been included in a Cabinet submission. 107 I uphold the State’s claim for public interest immunity in respect to documents 57A, 61A, and 65A. Parliamentary privilege 108 Mr Roberts accepted that the descriptions of the documents over which a claim of parliamentary privilege is taken properly invoke parliamentary privilege. 15 T48.38-49.8. -- 27 of 31 -- [2024] SASC 46 Kourakis CJ 26 109 Mr Roberts, however, challenges the parliamentary privilege claim made over the document 140B, entitled ‘Commercial Settlement [STA.234.011.4500]’ and dated 10 February 2016. 110 Ms Rodwell, in her affidavit of 8 December 2023, describes the document as appearing to be a briefing for the Minister in preparation for attendance at Parliament, even though it is not in the same template as more formal parliamentary briefing notes. Ms Rodwell does not have a specific recollection of any of the many briefing notes she has prepared or sent. However, Ms Rodwell deposes that less formal documents were occasionally prepared when there was some real urgency to provide a Minister with information. Such notes were occasionally delivered to the Minister when he or she was in a parliamentary chamber. I have no reason to doubt her evidence, even though it is based on her recollection of the form taken by parliamentary briefing notes and not a specific recollection of document 140B. 111 Document 1 is entitled ‘Quick reference hot topic [STA.121.004.2678]’.16 Mr Roberts makes the point that Mr Knez, a Director of the Women’s and Children’s Health Network employed by the Department of Health, disavows any personal involvement in the document. Mr Knez deposed at [16.3] of his affidavit: Document [STA.121.004.2678] is entitled “QUICK REFERENCE HOT TOPICS”. While I was not personally involved in the preparation of this specific document, I am familiar with similar “Hot Topics” documents which contained abbreviated briefings for topics of importance, or which were particularly relevant at the time. These documents were also used for the purpose of attendance at the BFC. I confirm that during my time in the role, the Chief Executive would routinely take documents in this format to BFC hearings. 112 The acronym ‘BFC’ refers to the Budget and Finance Committee of the Parliament. I understand the sentence commencing ‘These documents’ to mean that informal documents of that type were ‘also’, in the sense of ‘in addition to’ the fuller more formal briefing notes referred to in the earlier parts of his affidavit, used to brief Ministers before the BFC. Accordingly, that paragraph does not mean that ‘Hot Topics’ documents had a use other than to brief Ministers appearing before the BFC. I understand Mr Knez to depose that they were prepared specifically to brief a Minister for appearance before the BFC as an alternative to a formal parliamentary briefing note. 113 Mr Knez deposed that he was also familiar with similar ‘Hot Topics’ documents which contained abbreviated briefings on topics of importance or particular relevance. He deposed that these documents were also used for attendance at the BFC. He confirmed that the ‘Chief Executive would routinely take documents in this format to BFC hearings’. 114 I uphold the claim to parliamentary privilege over documents 140B and 157B in the annexure to the originating application. 16 This document is document 157B in the annexure to the originating application. -- 28 of 31 -- [2024] SASC 46 Kourakis CJ 27 The Balance of the Claims 115 I have considered the objections to the claims of public interest immunity and parliamentary privilege having regard to the submissions made on the applicable general principles, and the application of those principles to the particular documents on which submissions were made. I uphold the State’s claims. Epilogue 116 After the hearing of argument on this matter, HYLC amended its statement of claim to seek a determination of the State’s public interest immunity claims in respect to a further 13 documents. Parliamentary privilege claims have been made in respect of five of those documents. Two of the documents have since been produced. The remaining six documents are the subject of public interest immunity claims. 117 The documents over which public interest immunity is claimed and the nature of the privilege claimed are: Item Document Date Title Respondent Category 1C 27/02/2015 Agenda Item 3_EPAS update_HRCC (04March14) (5).doc A1 4C 3/12/2015 HCC item 3.2 – nRAH ICT Review – FINAL.doc A1 5C 3/12/2015 HRCC item 5.0 – EPAS Progress Report – Draft – FINAL.doc A1 7C 11/04/2016 Cabinet Note – NRAH Commercial Negotiation Strategy and Governance.doc A1 8C 13/04/2016 Cabinet Note – NRAH Commercial Negotiation Strategy and Governance (edits 12 Apr 16).doc A1 9C 13/04/2016 Cabinet Note – NRAH Commercial Negotiation Strategy and Governance (edits 12 Apr 16).doc A1 118 The documents over which parliamentary privilege is claimed are: Item Document Date Title Respondent Category 2C 1/07/2015 PBN Auditor General Report on Health ICT v02.docx B1 3C 14/10/2015 New RAH – Costings – including Project Co Payment.docx B1 10C 21/06/2016 PBN NRAH Construction.doc B1 11C 14/10/2016 D3. New RAH – Completion Date.doc B1 -- 29 of 31 -- [2024] SASC 46 Kourakis CJ 28 119 I am satisfied on the basis of the confidential affidavit of Robin Green that the documents in question were prepared for, and only for, submissions to a Cabinet subcommittee. In respect of documents 4C, 5C, 7C, and 8C, they were prepared for the purpose of deliberation and possible decision by Cabinet. 120 It is apparent from the dates and titles of the documents that the subject matter of the discussions may be relevant to the controversies which have been referred to arbitration proceeding on that premise. I directed that the documents to be produced to me because of their temporal proximity to those issues and because the subject-matter of the documents conveyed by their titles suggested that they may contain information which would materially assist the prosecution of HYLC’s claims. I therefore examined those documents. 121 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. 122 I am satisfied on the basis of the second affidavit of Helen Rodwell made on 6 February 2024 that all the notes are parliamentary briefing notes and are, therefore, protected by parliamentary privilege. 123 Ms Rodwell was the senior policy advisor for the Minister for Health between November 2013 and November 2017. She was responsible for the preparation of parliamentary briefing notes. A parliamentary briefing note is a relatively short document, usually no more than a few pages, following a standard template which provides a summary of key information to assist Ministers in the conduct of parliamentary proceedings. They often took the form of speaking notes. In her time in the Minister’s office, the construction of the nRAH was the most significant infrastructure project being undertaken by the State and was central to the State’s health services strategy. It was the State’s flagship hospital. She prepared a large number of parliamentary briefing notes. 124 The preparation of notes for a Minister to participate in parliamentary debate and answer questions which might be raised either directly or in the course of the debate falls well within the core purpose of parliamentary privilege and the -- 30 of 31 -- [2024] SASC 46 Kourakis CJ 29 privilege is essential for the purposes of ensuring free debate in Parliament and, in particular, for the purposes of ministerial accountability to Parliament. 125 I uphold the State’s claim for public interest immunity and parliamentary privilege in respect of the documents in the table at [117]-[118] above. -- 31 of 31 --