Acquista Investments Pty Ltd & Anor v The Urban Renewal Authority (A Statutory Corporation) & Ors [2016] HCATrans 67 (17 March 2016)

Last Updated: 28 April 2016

[2016] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A29 of 2015

B e t w e e n -

ACQUISTA INVESTMENTS PTY LTD

First Appellant

VEOLIA ENVIRONMENTAL SERVICES (AUST) PTY LTD

Second Appellant

and

THE URBAN RENEWAL AUTHORITY (A STATUTORY CORPORATION)

First Respondent

THE STATE OF SOUTH AUSTRALIA

Second Respondent

ADELAIDE CAPITAL PARTNERS PTY LTD

Third Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON THURSDAY, 17 MARCH 2016, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR M.J. WAIT: If the Court pleases, I appear for the first and second respondents in the appeal and for the applicants for this application. (instructed by Crown Solicitor (SA))

MR J.L. WHITINGTON: If the Court pleases, I appear for the appellants. (instructed by Griffins Lawyers)

MR P.A. BRITTEN-JONES: If the Court pleases, I appear for the third respondent. (instructed by Kain C+C Lawyers)

HER HONOUR: Mr Wait.

MR WAIT: Thank you, your Honour. By this application, your Honour, the first and second respondents seek to preserve the confidentiality of two Cabinet Submissions which set out the underlying reasoning for decisions that are subject to the challenge in this appeal.

HER HONOUR: Yes.

MR WAIT: The application has arisen in a very, if you like, mundane context whereby the parties are attempting to file the relevant appeal books and by operation of the Rules in the absence of an order being made the filing of these two documents and their inclusion in the appeal books will have the result that they will be publicly available.

By way of relevant background, your Honour, the trial judge in the matter ordered, over the objection of the first and second respondent, that the Cabinet Submissions should be produced. The first and second respondents had put to the trial judge that doctrines of public interest immunity applied such that they ought not be produced but were overruled on that.

Your Honour, that might be explicable on the basis that, albeit that we did not consent to that course, without access to those Cabinet Submissions the plaintiffs effectively would have been shut out of court because they would have had none of the underlying material that might have reflected the nature of the decision made by Cabinet and therefore particularly, insofar as they relied on Wednesbury unreasonableness reasoning, they effectively would have been unable to make out their case and prosecute their case.

HER HONOUR: I understand that, Mr Wait, but the problem I have is that I have now read both the decision of Justice Blue and the decision of the Full Court, as well as being provided with access to the two submissions, and the difficulty that seems to me that faces you which you will need to address is that substantial parts of both documents have already been made publicly available by extraction and summary at extensive length in both the decision of Justice Blue and in the Full Court. What I did was I went through and, in effect, cross-referenced the two submissions to both those judgments. I do not know what is left that is not available already publicly.

MR WAIT: Your Honour is indeed, with respect, entirely correct. Much of the subject matter of the submissions is canvassed in the decisions and, your Honour, we were very clear before the Supreme Court that when orders were made that the Cabinet Submissions be received in closed court, which had the effect that they were not publicly available before the Supreme Court, we made it clear our position on that was that it should not preclude the judges in the – either the trial judge or the Full Court from referring to those submissions to the extent they thought it was necessary in delivering their reasons because, your Honour, we thought that that represented a proper balance between the need to preserve, if you like, the class claim that we say applies to these documents against the administration of justice in this case.

I suppose there are two points that I would make in direct response to your Honour’s observation. The first is that we say the State, or the first/second respondent, ought not in effect be penalised for taking what we regard to be a pragmatic and a reasonable approach to these issues in the court below in order to facilitate the progression of the matter and allowing the court below to deal with the matter sensibly and in a way that does as least intrusion to the principles of open justice as possible.

Secondly, however, your Honour, and importantly, we say that the claim over these Cabinet Submissions is a class claim and that the importance of protecting the confidentiality of the documents refers not to the contents of those documents and, indeed, your Honour is absolutely right, with respect, that we cannot and do not assert that there is a particular piece of information in those Cabinet documents that we say presents a particular difficulty if that particular piece of information is released. That is not the basis on which we make the claim.

We make the claim that we say on the basis that the release of a confidential Cabinet document that has been signed into the Cabinet room on this occasion by the Premier, together with another Minister, would undermine the very confidentiality of the Cabinet process and has the potential to harm the candour with which Cabinet deliberations might take place in the future and, of course, that then feeds into problems of Cabinet solidarity, your Honour.

So, your Honour, perhaps just to try to make that submission good, if I might take your Honour to a couple of the authorities that I have listed in the submission. I can be very brief with these, your Honour, but in Sankey v Whitlam, Acting Chief Justice Gibbs confirms that the claim for Cabinet privilege is a class claim and not a contents claim, and the relevant passage is at page 43. I do not know if your Honour has that available but it is volume 142 CLR, and the relevant passage is on page 43. It is very short so I could even read that short passage to your Honour. Acting Chief Justice Gibbs says:

For these reasons I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever.

So what his Honour, having traversed many of the authorities on the point, confirms there that it is a class claim not a contents claim, although it is not an absolute privilege, so there is a weighing process to be undertaken. But, your Honour, then in The Commonwealth v Northern Land Council, that principle is affirmed by six members of the High Court in a joint judgment and the relevant passage there, your Honour, is on page 616. It is about halfway down the page, and perhaps again it is a short passage, I might read it onto the transcript – 176 CLR and the relevant passage is halfway down the page at page 616. But there the joint judgment says:

Both upon principle and authority, it is hardly contestable that documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents. But, whatever the position may have been in the past, the immunity from disclosure . . . is not absolute.

Then they go on to set out the passage from Sankey v Whitlam that I have just referred to. They then on page 618 put the principle so high and in such emphatic terms as to say:

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.

HER HONOUR: The problem, Mr Wait, is that the Cabinet deliberations in respect of these records have already been disclosed as a class. The horse has bolted. Can you answer one other question for me? How did the Full Court deal with them? On what basis did they receive them?

MR WAIT: Your Honour, the Full Court, I believe, simply worked from the Supreme Court file and because the documents had been received in closed court by the trial judge, they remained in closed court - - -

HER HONOUR: How do I know that?

MR WAIT: Your Honour, there is no affidavit on to that effect, I am afraid. I can try to put something on in a supplementary fashion if that would be of assistance.

HER HONOUR: No, there is no need to do that, it is additional cost. I just want to know on what basis the Full Court dealt with them.

MR WAIT: Yes. So, your Honour, the Full - - -

HER HONOUR: Justice Debelle does not seem to have thought that they were subject to any confidentiality and there are large parts of them set out, as I said, and set out in full in his judgment.

MR WAIT: Yes. So, your Honour, there was certainly no order made by the Full Court relating to the confidentiality or otherwise of the documents that bear upon public access to the documents. As I say, we did make it clear to both the trial judge and the Full Court that despite the fact that we sought to maintain the confidentiality of the documents we did not propose that – the fact that they had been received in closed court ought to prevent them from referring in their judgments to the extent they considered necessary. Justice Debelle, it might be inferred, considered it necessary to refer to larger portions and in a more direct way than in the joint judgment.

So, your Honour, trying again to address what might appear to be your Honour’s main concern, we say that there is a difference between, on the one hand, the contents of a Cabinet decision being the subject of some discussion and even having certain passages of that Cabinet submission set out in a judgment, on the one hand, and on the other hand allowing the release of these Cabinet Submissions in full because, your Honour - - -

HER HONOUR: What is the distinction when you already have the contents set out in full, or close to in full?

MR WAIT: Well, the distinction is this. It is that members of Cabinet, present and future, will feel, we fear, that they need to be more candid in the way that they express themselves in the Cabinet Submissions that they put to Cabinet, that they sign into Cabinet, and the circulation of a formal Cabinet document in the public arena will cause public officials who prepare those Cabinet Submissions to temper the language that they might use.

Again, your Honour, I would ask the Court to take into account on this application the fact that the State in these proceedings has attempted to deal in a pragmatic and really what we regard to be a fair way of negotiating between the principles of Cabinet confidentiality on the one hand and our desire not to stand in the way of allowing the plaintiffs to put their case.

Again, I would find it troubling if the State was to, in effect, be penalised by that, and more importantly, if the public interest in the remaining confidentiality attaching to the documents and in the confidentiality relating to the form in which the documents take and the damage that might be done by the public dissemination of a formal document that is a Cabinet submission, we think it would be unfortunate if the public interest in preserving the confidentiality over those aspects was to be lost because of the pragmatic approach that had been taken.

Your Honour, there are some other points that we seek to rely on in support of the application, but I just pause before I move to those to see if there is anything else that I might be able to seek to address your Honour on in relation to what I might call the “class versus contents” nature of the claim.

HER HONOUR: No.

MR WAIT: Thank you. There are some other aspects which arise from the language of the test to be applied under Part XAA of the Judiciary Act and in particular section 77RF which is relatively newly introduced in 2012, I believe. Subsection (1) provides:

The High Court may make a suppression order . . . on one or more of the following grounds:

(a) the order is necessary - - -

HER HONOUR: This is not really a suppression order, this is a non-publication order. You do not want the contents of these documents publicised, released.

MR WAIT: Your Honour, we have cast it as a suppression order - - -

HER HONOUR: Not in your summons you have not.

MR WAIT: No, it appears that we have not – it does appear that we have not done so. Your Honour, the intention is to seek a suppression and the reason for that is that we want the order to go further than simply to suppress publication but also to restrict dissemination of the information.

HER HONOUR: I do not understand what that means.

MR WAIT: Well, your Honour, my understanding of the distinction between a non-publication order and a suppression order is that a non-publication order merely has the effect that it prevents publication, and then in the definition of “non-publication order” under 77RA, in brackets it provides – this is the definition of “non-publication order”:

(but that does not otherwise prohibit or restrict the disclosure of information).

So my understanding is the provision must be using the term “publication” in the sense of publish not in a law of defamation sense but in perhaps more of a plain English sense of publish – in fact, “publish” is then defined below in the definition section in the manner in which I am attempting to articulate:

means disseminate or provide access to the public . . . by any means, including by:

(a) publication in a book . . .

(b) broadcast by radio or television; or

(c) public exhibition; or

(d) broadcast or publication by means of the internet.

So that is one type of dissemination of the information, if you like, by publication; whereas a suppression order covers the field, if you like. It is:

an order that prohibits or restricts the disclosure of information (by publication or otherwise).

So it has a broader reach and a broader effect.

HER HONOUR: So, just so I am clear because what was set out in your submissions did not match the summons, what is the order that you seek?

MR WAIT: Yes, there is a slight variation, your Honour. So the order that we seek is set out in the written submission and that is at paragraph 16.

HER HONOUR: Paragraph 16.

MR WAIT: Yes, but to pick up on the point that your Honour rightly, with respect, makes, that order should expressly seek a suppression order. So 1, I think, should read “a suppression order” - inserting the word “suppression” pursuant to section 77RF.

HER HONOUR: Well, the addition of the word is not going to help you much. You need to understand what the order is in order for it to be enforced if it was granted.

MR WAIT: Yes.

HER HONOUR: So at the moment what it seeks is limited to – the two Cabinet Submissions are filed in a separate appeal book and that book is not available to the public. That is a non-publication order; that is not a suppression order. The mere addition of the word “suppression” is not going to help you, I do not think – (a) and (b) are non-publication.

MR WAIT: Your Honour possibly – our submission is that the effect of the making of a suppression order would not in itself prevent the court from having access to the documents for the purposes of determining the appeal, and so (a) and (b) have attempted to be cast in such a way so as to permit the appeal to sensibly proceed with the court and the parties all having access to those documents with the expectation that counsel will then sensibly refer to those documents so as not to breach the suppression. Your Honour will be familiar with cases where counsel are called upon to attempt to address confidential material in a way so as not to disclose the contents of that material.

HER HONOUR: But it is not going to arise on your case. This is the interesting thing about it. To the extent to which the material is sought to be relied upon, it is already in the public domain. You make a confidentiality claim in respect of a class which happens to be the submission in its form. There is nothing, as I understand it, preventing anybody, because the public already have access to it, not only large extracts but large chunks of the form of the document itself.

MR WAIT: Yes. So, your Honour - - -

HER HONOUR: You cannot contend, for example, that what is set out at paragraphs 115 of Justice Blue’s judgment or 165 of the Full Court’s judgment cannot be cited verbatim to the public at large when they already have them.

MR WAIT: No, indeed we cannot, your Honour, and we do not seek to do that. What we would - - -

HER HONOUR: Given that those aspects have already been disclosed, is not the issue about which you complain, in a sense, as I said before, the horse has bolted? To the extent to which they needed to be careful about the language they use, the entire recommendation is set out already.

MR WAIT: That is certainly the case, your Honour. In some respects the recommendation might be thought to be one of the least troublesome aspects of the submission that might be released in the sense that a decision was made, it is publicly known that the decision was made and the terms of the decision made is perhaps less important than the deliberation that was taken on the subject matter that precedes to that recommendation which was ultimately endorsed.

But, your Honour, perhaps another way of seeking to cast the order would be to use the mechanism provided for in Part XAA to provide for exceptions to the suppression order. So, your Honour, I am afraid I have not done it already but it might be that to try to overcome some of the problems that your Honour notes, it might be that a suppression order could be made and then some exceptions tailored to ensure that the Court and the parties can have access.

Your Honour, those exceptions might extend expressly to those portions of the Cabinet submission that have been already set out in the public domain because your Honour quite rightly, with respect, notes that we cannot and do not seek to restrict further replication of those portions that had been set out in the judgments. We think that would be to go too far.

Your Honour, there are two other grounds that we seek to rely on in support of the making of the order. One of them is referred to in the case of ABC v Parish which is on my list. I do not think I need to take your Honour to the passage but Justice Deane in that decision at page – I will find that for you in a moment, your Honour – Justice Deane at page 254 of the reported judgment – and I should also note Justice Deane is in dissent but not relevantly for the point of principle that he makes at page 254.

In the Parish decision which related to section 50 which bears many similarities to the existing regime provided for in Part XAA, Justice Deane notes that the proper administration of justice might more readily be considered to favour the granting of a suppression order in circumstances where the parties are agreed to that course, or at least do not object to that course. So that is, if you like, the last 10 or 15 lines, starting with the words “In considering an application” on page 254. I will just give your Honour a moment to read that.

I am sorry, your Honour, the last point that we seek to rely on in support is a point that is made in The Commonwealth v Northern Land Council but it is made in the Full Court decision, not in the subsequent appeal to the High Court. Your Honour, I am afraid that is a case that is not on my list. It is yet again a short passage and I wonder if I might take the liberty of reading that short passage to your Honour. I will provide a copy - - -

HER HONOUR: Can you give me the citation, please.

MR WAIT: Yes, your Honour. It is (1991) 30 FCR 1, and the page number is 39, and, your Honour, this goes I hope some way to address - - -

HER HONOUR: What is the proposition it stands for?

MR WAIT: The proposition is this, that when assessing the public interest or whether it is appropriate in the public interest to make – it is not a suppression order in that case, it is to uphold a claim for public interest immunity, that it will be relevant in making that assessment to consider whether or not there has been limited disclosure made, because in that passage the courts say – the court consisting of Chief Justice Black, Justices Gummow and French, they discuss the practice whereby there might be limited disclosure of confidential Cabinet material to counsel and solicitors, and they then say:

Limited disclosure in this way can, in appropriate cases, protect both the public interest underlying the claimed immunity and the public interest in the administration of justice. More than that, public confidence in the justice system can be maintained when it is known that the documents are subject to inspection by representatives of the parties who are then in a position to assist the court in coming to a view on the basis of adequate information on where the balance lies if unrestricted disclosure of the documents in question is sought.

So, your Honour, we call in aid that passage to support the weighing of the various factors that go to the proper administration of justice and as that test needs to be considered for the purpose of section 77RF.

Your Honour will note that we have – it is incumbent on us to identify or more relevantly for the Court in the event that it makes a

suppression order to indicate the period within which the order is to operate and we suggest the relevant appropriate period is 10 years, your Honour, because that is consistent with the South Australian Government’s policy on the proactive release of Cabinet Submissions. So that would be the duration of the order that we seek.

Your Honour, there is one final matter that I would like to raise and that is if your Honour was minded not to make the order this morning, one course that might be available to your Honour which we would urge your Honour to take, if you like, in the alternative, would be to make an interim order which is open to your Honour under section 77RH of the relevant part, which provides that:

If an application is made to the High Court for a suppression order . . . the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the application is determined.

Your Honour, we consider that this application, albeit arising on a relatively mundane basis of the filing of documents and the compilation of books, does raise some fundamental issues going to Cabinet confidentiality that had been the subject of decisions in Egan v Chadwick and Sankey v Whitlam and The Commonwealth v Northern Land Council that I have referred to. They are important matters to the State and we would ask that if your Honour was not minded to make the order sought this morning that your Honour might consider making an interim order so that the Court might address this issue when it hears the appeal proper in a matter of four weeks or so away. Unless your Honour had any questions, they were - - -

HER HONOUR: Thank you, Mr Wait. Mr Britten-Jones, do you wish to add anything to this?

MR BRITTEN-JONES: No, I do not. We certainly do not oppose the orders being sought. I would simply note, consistent with what your Honour has noted with respect to disclosure contents within the judgments, that in the written submissions that have been filed by the third respondent there is disclosure of the substance and contents of the two Cabinet Submissions.

HER HONOUR: Thank you. Mr Whitington.

MR WHITINGTON: Your Honour, I have nothing to add. We take, in effect, a neutral stance. Our only concern is that there should be no impediment to, for example, your Honour publishing detailed reasons which might make reference to the Cabinet Submissions. I did not understand that to be suggested by my friend. Equally, I did not understand him to suggest

that if such an order was made that would inhibit counsel on the hearing from referring in detail in oral submission to the subject documents.

I am not sure whether he gravitated slightly from that position but they are our two principal concerns, and aside from that, those matters, we take, in effect, a neutral stance. We were, of course, going to observe, as your Honour has, that they have been the subject of detailed reference in the judgments and to that extent they are in the public domain as it is, but otherwise no substantive submissions. If the Court pleases.

HER HONOUR: Thank you, Mr Whitington. Mr Wait, do you wish to say anything in response?

MR WAIT: No, your Honour.

HER HONOUR: The Court will adjourn for a moment to consider its position and will return not before 10.30.

AT 10.04 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.34 AM:

HER HONOUR: An application for a suppression order was made by summons with supporting affidavits filed by the first and second respondents, the Urban Renewal Authority and the State of South Australia, on 3 March 2016. The orders sought by the first and second respondents were an order pursuant to s 77RF(1)(a) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) that documents 13 and 70 (being documents contained within exhibit P1A tendered at the trial in the Supreme Court of South Australia before Justice Blue, Proceeding No SCCIV 623 of 2014) be filed in a separate confidential volume of the appeal books to be filed in this Court, and a further order that the confidential volume not be made available to the public.

The appeal in this matter is listed for hearing before the Full Court on 13 April 2016.

The facts giving rise to the appeal were described by the majority in the Full Court of the Supreme Court of South Australia in the following terms[1]:

“1. On 13 December 2013 the Urban Renewal Authority (the Authority), the Premier on behalf of the State of South Australia and Adelaide Capital Partners Pty Ltd (ACP) entered into a Deed (the contract) that conferred options on ACP to purchase 407 ha of land to the north of Adelaide (the Land).

2. The Authority is a statutory authority established under the Housing and Urban Development (Administrative Arrangements) Act 1995 (SA) (the HUD Act). It is the registered proprietor of the Land which is beneficially owned by the Crown.
   
3. On 20 May 2014 the appellants, Acquista Investments Pty Ltd and Veolia Environmental Services (Aust) Pty Ltd who jointly conduct a business trading as Integrated Waste Services (IWS) commenced an action for judicial review in this Court seeking, amongst other relief, to set aside the contract. . . . ”
   

The question considered by that Full Court was whether a decision made by the State Cabinet to sell land that the South Australian Government was in a position to sell is a decision which could be susceptible of judicial review.

Prior to the relevant Cabinet decision being made, two submissions were made to Cabinet about the sale of the Land: one in September 2013 (“the September Cabinet Submission”) and one in December 2013 (“the December Cabinet Submission”).

At the trial, the Cabinet Submissions were tendered and received in closed court for “confidentiality reasons”[2]. As I said, the Cabinet Submissions were contained in exhibit P1A, with the September Cabinet Submission being document 13 and the December Cabinet Submission being document 70. The September Cabinet Submission comprises 18 pages and a number of attachments. The December Cabinet Submission comprises 20 pages and a number of attachments. Each submission is headed “Sensitive: SA Cabinet”.

The Cabinet Submissions were also before the Full Court. In the Full Court, Vanstone and Lovell JJ assumed the Cabinet Submissions to have formed the basis of the discussion of the proposal in Cabinet[3]. Their Honours described the Cabinet Submissions as being “comprehensive in terms of outlining both positive and negative aspects of accepting ACP’s proposal”[4].

It is those Cabinet Submissions which are now the subject of the application for the suppression order in this Court.

Not only were the Cabinet Submissions before the trial judge and the Full Court, but each submission is extensively extracted and summarised in the publically available decisions. For example, the trial judge addressed the content of both the September Cabinet Submission[5] and the December Cabinet Submission[6] at some length. His Honour also directly quoted entire sections of the December Cabinet Submission including a section which described a “risk” with the proposal, what had been done in relation to that risk and the then views of the Urban Renewal Authority Board of Management[7]. These passages were also included in the reasons for decision of the Full Court[8]. The trial judge also directly quoted five of the 13 recommendations contained in the December Cabinet Submission[9]. In the Full Court, Debelle AJ repeated those recommendations and included a sixth[10]. The Full Court also directly quoted passages from the Cabinet Submissions not extracted by the trial judge. For example, the recommendations set out in the September Cabinet Submission are directly quoted by Debelle AJ[11]. Both the trial judge and the Full Court also summarised or directly quoted from the “synopsis” at the front of each submission[12]. These are merely examples. The references are extensive and numerous.

The power to make a suppression order is not in doubt[13]. A primary objective of the administration of justice is to safeguard the public interest in open justice[14]. The question raised by this application is whether the Court is satisfied that a suppression “order is necessary to prevent prejudice to the proper administration of justice”[15].

Given the extent to which the Cabinet Submissions have already been disclosed in the earlier decisions, what then is the basis of the application for a suppression order?

The Urban Renewal Authority and the State of South Australia filed an affidavit sworn by Kym Winter-Dewhirst, the Chief Executive of the Department of Premier and Cabinet. In that affidavit, Mr Winter-Dewhirst relevantly stated that:

“I am informed by the State’s legal representatives that in the course of the trial in these proceedings before the Supreme Court of South Australia, Justice Blue ruled that the Cabinet Submissions that are the subject of this application, were to be admitted in closed court. I am advised that the effect of the ruling of Justice Blue was that, whilst the Cabinet Submissions were available to the parties’ legal representatives and to the Court for the purpose of determining the matter before the Court, the confidentiality of the Cabinet Submissions was maintained, in so far as members of the public were unable to access these documents from the files of the Supreme Court.

I understand that in the absence of this Court making an order sought in the summons accompanying this affidavit, the content of the Cabinet Submissions will become publically available with the likely result that the confidential deliberations of Cabinet will not be preserved.

The release of documents that would breach the confidentiality of the Cabinet process would significantly interfere with the efficient operation of Cabinet, and, therefore, with decision-making and policy development at the highest level of State Government, regardless of the subject matter of the document.

Compromise of the confidentiality of Cabinet may cause current and future Cabinet ministers, as well as the officials having the task of preparing Cabinet notes and Cabinet submissions to be discussed in Cabinet, to apprehend that what was written by them for the purposes of Cabinet, and what was discussed in Cabinet, might not remain confidential. That might cause them to temper what they wrote or said in the course of Cabinet deliberations.” (emphasis added)

Statements to a similar effect were made by James Vincent Hallion, the State Coordinator-General of the Department of Premier and Cabinet, in an affidavit filed two days before the hearing.

The difficulty with those statements (and the oral and written submissions which relied upon those statements) is that the confidentiality of the Cabinet Submissions has not been maintained. Large portions of the Cabinet Submissions are publicly available. They have been summarised and directly quoted in the judgments below. Members of the public have had access to significant parts of these documents since those reasons for decision were made available electronically and, in relation to the decision of the Full Court, again when that decision was published in the South Australian State Reports.

Although Mr Wait, counsel for the first and second respondents in the appeal, and the applicants for the suppression order, accepted that there was not a particular piece of information in the Cabinet Submissions that presented a particular difficulty, he submitted that the release of the Cabinet Submissions, signed into Cabinet by the Premier and another Minister, has the potential to harm or undermine the confidentiality of the Cabinet process and Cabinet solidarity. Mr Wait sought the suppression order for 10 years from the date of the Cabinet Submissions, namely January 2024.

Given this latter basis upon which the application for the suppression order is made and without determining the merits of that application, it is appropriate that I make an interim order under s 77RH of the Judiciary Act that documents 13 and 70 (being the September and December Cabinet Submissions) are filed in a separate confidential volume of the appeal books and make a further order that the confidential volume not be made available to the public.

Those orders are subject to revocation by the Court and will have effect until the application for that suppression order is determined by the Court. The issue can be addressed at the hearing of the appeal. In those circumstances, the orders of the Court are as follows:

1. Pursuant to s 77RH of the Judiciary Act 1903 (Cth), documents 13 and 70 (being documents contained within exhibit P1A tendered at the trial in the Supreme Court of South Australia before Blue J, SCCIV 623 of 2014) be filed in a separate confidential volume of the appeal books to be filed in this Court (“the Confidential Volume”).
   
2. Pursuant to s 77RH of the Judiciary Act 1903 (Cth), the confidential volume is not to be made available to the public.
   
3. Orders 1 and 2 are subject to revocation by the Court and have effect until the first and second respondents’ application for a suppression order is determined by this Court.
   

Anything further, Mr Wait?

MR WAIT: No, your Honour, thank you.

HER HONOUR: Anything else, Mr Britten-Jones?

MR BRITTEN-JONES: No, your Honour.

HER HONOUR: Mr Whitington?

MR WHITINGTON: No, your Honour.

HER HONOUR: Thank you. Adjourn the Court.

AT 10.47 AM THE MATTER WAS ADJOURNED

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[1] Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 at 151 [1] - [3].
[2] Acquista Investments Pty Ltd v The Urban Renewal Authority [2014] SASC 206 at [171].
[3] Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 at 153 [12].
[4] Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 at 153 [12].
[5] Acquista Investments Pty Ltd v The Urban Renewal Authority [2014] SASC 206 at [113] - [116].
[6] Acquista Investments Pty Ltd v The Urban Renewal Authority [2014] SASC 206 at [161] - [165].
[7] Acquista Investments Pty Ltd v The Urban Renewal Authority [2014] SASC 206 at [163]. See also at [510], [515].
[8] Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 at 165 -166 [68]. See also at 203-204 [213] - [214].
[9] Acquista Investments Pty Ltd v The Urban Renewal Authority [2014] SASC 206 at [165].
[10] Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 at 204 - 206 [216].
[11] Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 at 188 - 189 [165].
[12] In relation to the September Cabinet Submission, see Acquista Investments Pty Ltd v The Urban Renewal Authority [2014] SASC 206 at [113]; Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 at 187 -188 [163], 255 [359]. In relation to the December Cabinet Submission, see Acquista Investments Pty Ltd v The Urban Renewal Authority [2014] SASC 206 at [161]; Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 at 165 [68], 202 -203 [210], 259 [374].
[13] s 77RE of the Judiciary Act.
[14] s 77RD of the Judiciary Act.
[15] s 77RF(1)(a) of the Judiciary Act; cf Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 644 [30] - [33]; [2010] HCA 21.