Heli-Aust Pty Limited v Civil Aviation Safety Authority

1. [1]

   HER HONOUR: By notice of motion filed 7 September 2018, the plaintiff seeks firstly, an order pursuant to rule 21.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the defendant, within 21 days after the date of this order, produce for inspection by the Court the documents referred to in Part 1H and Part 1I of the defendant’s list of documents, as contained in Annexure B to the affidavit of Anthony Carter dated 9 March 2018 (“the documents”); and secondly, an order pursuant to UCPR 21.2(1) and 21.5(2) that the defendant, within 21 days after the Court determines which of the documents are subject of a valid claim of privilege from inspection, produce for inspection by the plaintiff the documents that are not the subject of a valid claim of privilege from inspection.

2. [2]

   The plaintiff is Heli-Aust Pty Limited (in liquidation). The defendant is the Civil Aviation Safety Authority. The parties relied on a Joint Court Book (Ex 1), as well as the affidavits of Mr Carter dated 9 March 2018 and 2 October 2018, and the affidavit of Patrick Hornby dated 4 October 2018.

Discovery

1. [3]

   UCPR 21.2 reads:

2. [4]

   UCPR 21.5 reads:

Background

1. [5]

   The documents which are relevant to these proceedings relate to the helicopter crash of aircraft VH-HCA in September 2011 near Newman, Western Australia. The accident occurred after the pilot lost consciousness, killing him and seriously injuring a passenger engineer whose employer had chartered the aircraft. The plaintiff was the operator and bailee of the aircraft. The plaintiff is suing the defendant, the Civil Aviation Safety Authority (“CASA”), on the basis that it breached its duty of care by issuing a medical certificate clearing the pilot for flight, despite his alleged history of fainting.

2. [6]

   The documents sought concern communications between CASA and the Australian Transport Safety Bureau (“ATSB”). The ATSB is responsible for investigating civil aviation accidents which fall within Commonwealth jurisdiction. The ATSB performs its functions in accordance with the provisions of the Transport Safety Investigation Act 2003 (Cth) and, where relevant, international agreements. The object of its investigations is not to apportion blame or liability, but to identify and reduce safety-related risks.

3. [7]

   The ATSB conducted an investigation under the Transport Safety Investigation Act into the accident. It produced a draft report of its findings, followed by a final report in January 2013. In the process of its investigations, the ATSB corresponded with the defendant to address safety matters in connection with the accident. The issue for determination is whether the plaintiff is entitled to discovery of a select number of those documents, comprising 31 emails and email chains between CASA and the ATSB.

List of Documents

1. [8]

   The general description of the documents that is available to this Court are set out in Annexure B to the affidavit of Mr Carter dated 9 March 2018. Mr Carter was employed as Special Counsel by CASA. The plaintiff seeks the production of documents which are numbered 92-122 in the defendant’s list of documents. Documents 92-119 fall within Part 1H Category 3, and documents 120-122 fall within Part 1I Category 4.

2. [9]

   Documents 92-101, 103, 117 and 118 are emails from the ATSB to CASA concerning the ATSB draft report and enclosing the report and an explanatory cover letter Annexure B, pp 14-15). Document 102 is an internal CASA email chain. Documents 104 and 105 contain an internal CASA email chain and input in respect of the ATSB draft report (p 15).

3. [10]

   Document 106 is an email chain between the ATSB and CASA concerning a “REPCON report” (p 15). Documents 107-115 are emails between the ATSB and CASA concerning a requested meeting with CASA (pp 16-17). Document 116 contains emails between the ATSB and CASA about a “return of evidence” (p 17). Document 119 is an internal CASA email concerning the accident.

4. [11]

   Document 120 is an email from the ATSB to CASA enclosing the final ATSB draft report (p 17). Documents 121-122 contain emails between the ATSB and CASA concerning the draft report (p 17).

5. [12]

   It is Mr Carter’s position, having read and considered both the context in which the 31 documents came into existence and their content, that each contains privileged information and should not be produced. His reasoning in relation to the grounds on which each document is privileged is contained in his affidavit of 2 October 2018, and considered in further detail below.

Statutory prohibition on disclosure

1. [13]

   The defendant resists production of the documents on the basis that they constitute “privileged documents” under the UCPR. The UCPR dictionary relevantly provides:

2. [14]

   The defendant submitted that the documents are privileged on three primary grounds. They are:

   1. (1)

      the documents disclose the contents of an ATSB draft report, so their use in this proceeding is prohibited under s 26(2) of the Transport Safety Investigation Act;

   2. (2)

      the documents contain "restricted information", so their use in this proceeding is prohibited under s 60(3) Transport Safety Investigation Act; and

   3. (3)

      the documents contain "protected confidences", such that this Court may order that they not be used in this proceeding pursuant to s 126B of the Evidence Act 1995 (NSW).

3. [15]

   I will consider those three grounds in turn.

(1) Whether s 26(2)(b) of the Transport Safety Investigation Act precludes production of the documents

1. [16]

   Sections 26 and 27 of the Transport Safety Investigation Act read:

2. [17]

   The defendant has argued that the documents are subject to privilege because they “reproduce”, “refer to”, “attach”, contain “information concerning the content of”, or “have been prepared in the context of enabling [the defendant] to respond to” the ATSB draft report, such that their disclosure is prohibited under s 26(2)(b) of the Transport Safety Investigation Act.

3. [18]

   The plaintiff submitted that while emails which reproduce or attach a draft report are subject to the s 26(2)(b) prohibition, such emails or attachments are able to be redacted or removed to the extent necessary to ensure compliance with that provision. The real issue is the extent to which emails informed by a draft report's content, but not disclosing or reproducing that content, would be considered “disclosure” contrary to the Transport Safety Investigation Act. The plaintiff submitted that communications, or parts thereof, which do no more than make reference to or comment upon a draft report, do not enliven s 26(2)(b).

4. [19]

   The UCPR dictionary defines “privileged document” as a document that contains “privileged information”, which includes information that, if produced or disclosed in a proceeding, “would be contrary to any...Commonwealth Act (other than the Evidence Act 1995 of the Commonwealth)”. In these proceedings, the relevant Commonwealth Act is the Transport Safety Investigation Act, specifically s 26(2)(b).

5. [20]

   Section 26 of the Transport Safety Investigation Act, entitled “Draft reports”, provides in subsection (1) that the ATSB may provide a draft report on a confidential basis to any person whom the ATSB considers appropriate, for the particular purposes specified in s 26(1)(a) or (b). Section 26(2)(b) then provides that “A person who receives a draft report under subsection (1)...must not…disclose any of the contents of the report to any other person or to a court.” Section 27 of the Transport Safety Investigation Act prevents a final or draft report from being admissible as evidence.

6. [21]

   Statutory construction primarily involves interpreting legislation consistently with its overall language and purpose: see Act Interpretation Act 1901 (Cth), s 15AA; Interpretation Act 1987 No 15 (NSW), s 33. In order to ascertain the purpose behind a statutory provision, one must always begin with its context: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 153 ALR 490 at [69].

7. [22]

   In Singh v The Commonwealth (2004) 222 CLR 322; 209 ALR 355, Gleeson CJ explained at [12] that context:

8. [23]

   The Transport Safety Investigation Bill 2002 (Cth), which was enacted to become the Transport Safety Investigation Act, was accompanied by an Explanatory Memorandum (“the Memorandum”). The Memorandum states that the purpose behind the legislation was to “maintain and improve transport safety in the aviation, marine and rail modes by providing for the reporting of transport safety matters, conduct of safety investigations by the Australian Transport Safety Bureau... and publication of investigation results.” These investigations are independent, no-blame and open.

9. [24]

   The Memorandum also explains the purpose behind s 26 at pp 47-48:

10. [25]

    Section 26(2)(b) confers neither legal professional privilege nor public interest immunity. In Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350; [2017] HCA 33 (“Graham”), the majority held at [60] that an attempt to analogise a statutory provision prohibiting disclosure to a court with public interest immunity is “misplaced”. The majority, quoting Robinson v State of South Australia [No 2] [1931] AC 704 at 716, approving Marconi's Wireless Telegraph Co Ltd v The Commonwealth [No 2] (1913) 16 CLR 178 at 186 -187, held at [60] that the better view is that:

11. [26]

    The policy behind legal professional privilege is to promote the administration of justice by preserving the confidentiality of communications made in connection with the provision of legal services, and thereby encouraging full and frank disclosure by clients to their lawyers: see Esso Australia Resources Ltd v FCT(1999) 201 CLR 49 at 64 per Gleeson CJ, Gaudron and Gummow JJ, and at 82 per Kirby J; Grant v Downs (1976) 135 CLR 674 at 685. The policy behind public interest immunity is to protect an identified public interest: see Conway v Rimmer [1968] AC 910, approved in Commonwealth v Northern Land Council (1993) 176 CLR 604. Page 1 of the Memorandum states that the policy behind the Transport Safety Investigation Act is to:

12. [27]

    The Transport Safety Investigation Act defines “disclose” in s 3 as follows:

13. [28]

    In AWB Ltd v Cole (2006) 152 FCR 382 (“AWB”), a case involving legal professional privilege, Young J analysed the relevant case law and concluded at [132] that:

14. [29]

    In Kamasaee v Commonwealth of Australia (No 6) (2016) 52 VR 368, a case concerning public interest immunity, Maculay J assessed the scope of protection provided by a regulation against disclosure and held that:

15. [30]

    In construing the scope of s 26(2), when read with the definition of “disclose” in s 3 of the Transport Safety Investigation Act, regard should be had to the line of authority dealing with disclosure by reliable inference. The concept of a "reliable inference" was further explained by Young J in AWB at [133]:

16. [31]

    The document in dispute in that case was a draft contrition statement prepared by Mr Lindberg, the managing director of AWB. The draft contrition statement was based closely on oral and written advice he received from his solicitor, Mr Zwier. The solicitor also stated in an affidavit that the disputed document “incorporates aspects of the legal advice which he had given” [141]. Nevertheless, Young J held at [142]:

17. [32]

    Young J referred to various cases in which a document will be protected from disclosure as it discloses another privileged document by reasonable inference: firstly, where it reproduces part of the contents of, or asserts the effect of or its reliance on, that latter confidential document; and secondly, where the document states the conclusion and effect of the privileged document. Conversely, mere reference to the occasion of a confidential document, without reference to its contents, will not suffice.

18. [33]

    In these proceedings, the plaintiff does not seek a draft report from the ATSB or any of its contents. The plaintiff is solely interested in any evidence casting light on any investigations conducted by CASA, or any information it possessed, in relation to the accident concerning VH-HCA. Further, the plaintiff is not challenging the validity of s 26 of the Transport Safety Investigation Act. Rather, it challenges the submission that the entirety of all of the emails qualify for its protection.

19. [34]

    The plaintiff submitted that:

20. [35]

    To the extent the documents in question do contain information captured by s 26, the plaintiff submitted that the Court has, as stated in Graham, “in reserve the power to inquire into the nature of a document for which protection [was] sought.” Accordingly, the Court is able to inspect the emails to determine if (and the extent to which) they contain such information. This is, the plaintiff submitted, the appropriate course in the present circumstances.

21. [36]

    The Explanatory Memorandum to the Transport Safety Investigation Bill 2002 states at p 48 that the purpose underpinning s 26(2)(b) is “to prevent the information, for example, from being taken out of context or misused and, as a result, prejudicing that particular investigation or future investigations, or unnecessarily and unjustly tarnishing reputations”. There is no aspect of the course presently urged by the plaintiff (wherein the Court would review a document to determine if it falls within the s 26(2)(b) protection) which is contrary to this purpose, especially in such circumstances where all relevant material can be redacted.

22. [37]

    The plaintiff further noted that UCPR 1.8(b) and 1.9(5)(c) allow the Court to inspect documents for the purposes of resolving any question about privilege. Where an email extracts (or reproduces) the content of a draft report, that portion of the email can be redacted to ensure there is no disclosure in accordance with s 26(2). The same principle can be applied to any emails that attach a draft report, which can be produced without the attachment.

23. [38]

    When considering the application for privilege in the context of these proceedings, it is of fundamental importance to understand the relevant legislative framework and treaty obligations of Australia relating to air safety, and the roles and responsibilities of the defendant in relation to the investigation of air accidents.

24. [39]

    The background to the investigation of air accidents can be found in international treaty, namely the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 (the “Chicago Convention”). Of particular relevance is Annex 13 to that Convention.

25. [40]

    Paragraph 5.12 of Annex 13 states that, amongst other things, all statements taken from persons by the investigation authorities during the course of their investigation, cockpit airborne image recordings and any part of transcripts from such recordings, and opinions expressing the analysis of information including flight recorder information, shall not be disclosed by the State conducting the investigation of an accident unless the appropriate authority for administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations.

26. [41]

    It is a fundamental feature of the Chicago Convention that investigations into air accidents have a single objective. That objective is the prevention of accidents and incidents and, importantly, not to apportion blame or liability. This is clearly set out in Article 3.1 of Annex 13 to the Convention.

27. [42]

    Under s 11 of the Civil Aviation Act 1998 (Cth), the defendant must perform its functions as Australia’s aviation regulator “in a manner consistent with the obligations of Australia” under all relevant treaties.

28. [43]

    Under s 9(3) of the Civil Aviation Act, CASA has the statutory function of “cooperating with the Australian Transport Safety Bureau in relation to investigations under the Transport Safety Investigation Act that relate to aircraft”. In performing that function, CASA must act in accordance with s 11.

29. [44]

    It is plain that in assisting the ATSB in relation to an air accident investigation, it is consistent with Australia’s obligations under the Chicago Convention for CASA to act in a manner that preserves the integrity of that investigation by maintaining the confidentiality of information received from, provided to, or otherwise collected for the purpose of assisting the ATSB.

30. [45]

    As the pre-eminent aviation investigator in Australia, the ATSB conducts “no blame” aviation safety investigations in accordance with the Transport Safety Investigation Act. The ATSB does not investigate for the purpose of taking administrative, regulatory or criminal action.

31. [46]

    When an ATSB investigation is undertaken, a report is completed for public release. Investigation reports can take many months to produce. It may be necessary to interview numerous individuals, cross-check evidence, and consult with other technical experts, including overseas investigation agencies, regulators and manufacturers.

32. [47]

    The ATSB adopts a practice of sending a draft copy of its investigation report to individuals or organisations (or their representatives) considered by the ATSB to be ‘‘directly involved parties”. Consultations or communications with those parties is known as the “DIP process” (Hornby Affidavit, [8]). Those parties include individuals or organisations who may be in a position to assist the ATSB with information, opinions or analyses of information, or whose reputations may be adversely affected by the ATSB’s findings.

33. [48]

    Under the Transport Safety Investigation Act ss 26(2) and 26(4), recipients of a draft report are not permitted to copy or disclose the contents of the draft report except for the purpose of providing comments to the ATSI on the draft report, or to take safety action. ATSB investigation reports, draft and final, and most evidence collected during an investigation cannot be used to civil or criminal proceedings.

34. [49]

    Under s 12AD of the Transport Safety Investigation Act, the ATSB must ensure that it exercises its statutory powers in a manner that is consistent with Australia’s obligations under prescribed international agreements, including Article 13 of the Chicago Convention.

35. [50]

    Under s 25 of the Transport Safety Investigation Act, the ATSB must, as soon as practicable after an investigation has been completed, publish a report in relation to the investigation. A published report “may include submissions that were made by persons to the ATSB in response to a draft report, safety action statements or safety recommendations”.

36. [51]

    Under s 27 of the Transport Safety Investigation Act, a draft or final ATSB report is not admissible in evidence in any civil or criminal proceedings. That prohibition does not apply to the admissibility of a final ATSB report in a coronial inquiry. To the extent to which the communications disclose any of “the contents” of the draft report, s 26(2)(b) of the Transport Safety Investigation Act is enlivened and CASA is prohibited from disclosing those communications to any other person or to a court.

37. [52]

    It is common ground between the parties that the force of s 26(2)(b) is axiomatic: a document which answers the description of, annexes, summarises, encapsulates or transcribes a draft report cannot be produced in these or any proceedings (T7.13-18). The disagreement between the parties, and the question before this Court, is whether the scope of that understanding is wide enough to include these 31 documents, and to what extent the statute precludes this Court from further inquiring into their content.

38. [53]

    Both parties refer to the statutory context in which the Transport Safety Investigation Act operates. Specifically, the defendant points to p 5.12 of Annex 13 of the Chicago Convention, which states:

39. [54]

    CASA’s obligations under the Chicago Convention are outlined in s 11 of the Civil Aviation Act, which state:

40. [55]

    The ATSB’s obligations under international instruments are outlined in s 12AD of the Transport Safety Investigation Act, which states:

41. [56]

    The defendant argued that as the emails concern interested parties communicating about the draft report, it is a matter of “common sense” that their correspondence will reveal its contents. The defendant pointed to the clear prohibitory language in s 26(2)(b), informed by Australia’s international obligations.

42. [57]

    The plaintiff argued that on the contrary, to the extent the emails do no more than note the receipt or existence of the draft report, s 26(2)(b) “does not bite” (T 8.6). The plaintiff acknowledged that there is no decided authority turning its mind to the precise application of s 26(2)(b) of the Transport Safety Investigation Act under the circumstances of these proceedings. However, it made reference to several cases which, by analogy, it argued may assist in establishing the limits of the section.

43. [58]

    The parties referred to three decision AWB Ltd v Cole (2006) 152 FCR 382 (“AWB”); Graham v Minister for Immigration and Boarder Protection (2017) 347 ALR 350 (“Graham”); [2017] HCA 33 and Kamasaee v Commonwealth of Australia (No 6) (2016) 52 VR 368 (“Kamasaee”).

44. [59]

    The first of these decisions, AWB, concerned legal professional privilege. The document in question was a draft statement which solicitors for AWB unintentionally provided to the Commissioner in the course of proceedings. AWB sought a declaration that the document was subject to legal professional privilege. It was the Commissioner’s determination that the draft statement was not privileged, in reliance on provisions within the Royal Commissions Act 1902 which gave him the power to summon witnesses to give evidence and produce documents.

45. [60]

    In that case, Young J determined that privilege will only attach to those documents which “directly reveal, or allow [their] reader to infer, the actual content or substance of the privileged communication” ([132]). Whether a document will allow a reader to make such a reliable inference about its content is a question of “objective fact” to be determined in each case, and is one the plaintiff in these proceedings suggested this Court undertake.

46. [61]

    However, although AWB provides a helpful distillation of the principles relating to legal professional privilege, it is not at all clear that those principles are relevant in the context of s 26(2)(b) of the Transport Safety Investigation Act. The relevant statute in AWB was not the source of the claim for privilege, but rather the source of the power to override a claim for privilege. It is not a case which contemplates a clear legislative prohibition on the production of documents before a court.

47. [62]

    The plaintiff also made reference to the decision in Kamasaee, which concerned public interest immunity. In that case, Kamasaee sought the production of documents from the Australian Red Cross in relation to its work on Manus Island. Section 6(13) of the International Organisations (Privileges and Immunities) (International Committee of the Red Cross) Regulation 2013 (Cth) (“ICRC Regulation”) stated that the contents of Red Cross reports, correspondence and other communications “must not be…divulged to [unintended] persons or organisations” or “used in the course of legal proceedings.” Kamasaee, like the plaintiff in the present case, did not contest the legitimacy of that section, but argued that the documents did not qualify for the immunity. The documents in dispute were records containing secondary references to primary Red Cross communications.

48. [63]

    The plaintiff in these proceedings referred to the decision of Macaulay J in Kamasaee, where his Honour stated at [100]:

49. [64]

    As with AWB, the plaintiff used this statement as authority for the proposition that the statutory immunity only extends to documents from which reliable inferences about privileged content can be drawn. However, the plaintiff did not include the paragraph immediately following, where Macaulay J continued at [101]:

50. [65]

    Ms Cooper was a senior legal advisor for the Department of Foreign Affairs and Trade, and gave evidence before the Court about the documents in question, including a description of the nature of each document and her opinion as to whether its disclosure would divulge the contents of the privileged report. This is exactly the type of undisputed evidence provided in the affidavits of Messrs Hornby and Carter in these proceedings. I will return to the question of public interest immunity and the importance of these affidavits later in this judgment in the context of protected confidences. For present purposes, it is sufficient to note that Kamasaee is not a case in which the judge determined that the documents in question should be produced to the Court to second guess Ms Cooper’s conclusions about their contents. Macaulay J in fact found that on the reliable evidence of Ms Cooper, such production would contravene the statutory prohibition in s 6(13) of the ICRC Regulation by disclosing the “very material” which the provision proscribes.

51. [66]

    The plaintiff’s suggested course of action is that this Court inspect the documents and make a determination as to which, if any, disclose the content of the draft report. Those documents or parts of documents which contravene the “meaning and purpose” of s 26(2)(b) can then be redacted. The plaintiff argued that this “straightforward exercise” is one in which it would be “abundantly clear at first glance whether or not the email [engages]” the section (T14.22; 14.32-33).

52. [67]

    In support of this course of action, the plaintiff pointed to the decision in Graham, where the majority stated that the Court always has “in reserve the power to inquire into the nature of a document for which protection is sought” ([60]). That case concerned s 503A of the Migration Act 1958 (Cth), which prohibited the Minister or an authorised migration officer from divulging, or being required to divulge, certain confidential information to a tribunal or court. The plaintiffs in Graham sought judicial review of the Minister’s decision to cancel their visas, which he made on the basis of a confidential tip-off protected from the scrutiny of a court by s 503A.

53. [68]

    It is not at all clear, however, that the power referred to in Graham extends to inspection and redaction in these proceedings. Firstly, the majority in Graham specifically referred to this power of inquiry in the context of the High Court exercising its original jurisdiction under s 75(v) of the Constitution. Secondly, their Honours observed at [16] that s 503A(2) was not a provision which provided a blanket prohibition on disclosure, but was one which in fact outlined situations where the Minister could choose to disclose the information to a court. Finally, and most importantly, it does not follow that a power to “inquire into the nature of a document” envisions a court inspecting (and redacting) its contents. It may well be that, as the defendant in these proceedings has argued, this hearing itself constitutes such an inquiry (T35.47-48).

54. [69]

    On the basis of Mr Carter’s evidence (Aff 2 October 2018), the following documents disclose the contents of the draft report:

55. [70]

    I am satisfied by Mr Carter’s descriptions that all of these documents disclose the content of the draft report. Therefore, they must not be disclosed to any person or to this Court under s 26(2)(b) of the Transport Safety Investigation Act. These documents are privileged and should not be produced for inspection.

(2) Whether the documents contain “restricted information”

1. [71]

   The defendant further resists production of the documents on the basis that they contain “restricted information” such that their disclosure is prohibited under s 60(3) of the Transport Safety Investigation Act.

2. [72]

   Section 60 of the Transport Safety Investigation Act relevantly reads:

3. [73]

   Section 62 of the Transport Safety Investigation Act provides that “[t]he ATSB may authorise a non-staff member to have access to restricted information if the ATSB considers that it is necessary or desirable to do so.” That non-staff member will be subject to the confidentiality requirements of section 60.

4. [74]

   Section 3 of the Transport Safety Investigation Act defines “restricted information” as including any of the following:

5. [75]

   In s 3 of the Transport Safety Investigation Act, the term “staff member” is confined to persons the ATSB has employed, contracted or delegated powers under the Act. The term “consultant” is defined as a person who is engaged by the ATSB for a particular task.

6. [76]

   The Memorandum explains the purpose behind s 60 at p 72:

7. [77]

   In Elbe Shipping SA v Giant Marine Shipping SA (2007) 159 FCR 518, Dowsett J explained at 524:

8. [78]

   The plaintiff does not seek restricted information. Rather, it seeks the information gathered by CASA in relation to the incident concerning VH-HCA. Further, the term “restricted information” is exhaustively defined in the Transport Safety Investigation Act and is limited to the categories stated. The defendant’s assertion that all correspondence between itself and the ATSB concerning VH-HCA is restricted information finds no support in the Transport Safety Investigation Act.

9. [79]

   Assuming restricted information is contained within the email, it becomes necessary to determine its origin. The provision only prohibits disclosing information and evidence gathered by the ATSB pursuant to the Transport Safety Investigation Act. It does not extend to information CASA has independently gathered (or even in cooperation with the ATSB). While CASA works closely with the ATSB, it is neither a “staff member” because it is not employed by the ATSB, nor a “contractor” because it is not engaged by the ATSB in any sense. Accordingly, any information gathered by CASA is not “restricted information” for present purposes.

10. [80]

    Under s 60(8) of the Transport Safety Investigation Act, if a person is prohibited by s 60 from disclosing restricted information, then the person cannot be required by a court to disclose the information, and any information disclosed by the person in contravention of s 60 is not admissible in any civil or criminal proceedings (other than proceedings against the person under s 60).

11. [81]

    All statements (whether oral or in writing) obtained by ATSB investigators from CASA officers and contained in email communications between the two authorities in the course of subject accident investigation (including any record of such a statement) fall squarely within the definition of “restricted information”.

12. [82]

    It is plain that to the extent to which the documents contain “restricted information”, the ATSB has, in conveying that information to CASA, impliedly authorized CASA to have access to that restricted information with the result that s 60 of the Transport Safety Investigation Act is enlivened and CASA is prohibited by law from disclosing that restricted information to any other person or to the court.

13. [83]

    On the basis of the affidavit evidence of Messrs Carter and Hornby upon which the defendant relied in support of its privilege claims, there can be little doubt that the ATSB emails identified above contain “privileged information” and are, accordingly, privileged documents.

14. [84]

    The balance of the documents listed under Part 1H (including documents 102, 104, 105, 117 and 119) are identified as internal CASA emails. Those emails have been raised in the context of the DIP process for the purpose of preparing comment or submissions to the ATSB in response to its draft report. Internal disclosure that is necessary for that purpose is permissible under s 26(4) of the Transport Safety Investigation Act but impliedly, that disclosure must be confidential and directed to the specific purpose contemplated by the DIP process.

15. [85]

    Moreover, as submissions made by CASA to the ATSB in response to a draft report may be included in a published report of the ATSB, which is then inadmissible in evidence, the clear context of the internal gathering of information under the umbrella of the DIP process distinguishes the discovered emails in question from other internal communications that have no connection with that process. To the extent that CASA’s submissions to the ATSB may be included in a report published under s 25 of the Transport Safety Investigation Act, those submissions cannot be admitted into evidence.

16. [86]

    As with s 26(2)(b), s 60(3) of the Transport Safety Investigation Act not only confers privilege, but precludes production to this Court of any documents containing restricted information. The effect of s 60 in these proceedings is to potentially capture a further class of communications as privileged. As counsel for the defendant noted, there may be overlap between ss 26 and 60, as a draft report could itself constitute restricted information (T25.43-44).

17. [87]

    Counsel for the plaintiff insisted that it does not seek restricted information. It seeks only those documents or parts of documents which contain information that CASA independently gathered in relation to the accident. Because CASA is not a “staff member” nor “contractor” of the ATSB, any communications relating to its own investigations are not restricted information as defined by s 3 of the Transport Safety Investigation Act, and are not precluded from production under s 60.

18. [88]

    Counsel for the defendant argued that the plaintiff has engaged in a “fishing expedition”, and that there is no evidence that the documents in question relate to an independent CASA investigation (T24.43; T25.10). On the contrary, counsel for the defendant argued that the affidavit evidence of Mr Carter in relation to the documents should be “adequate and compelling” (T23.35).

19. [89]

    It is Mr Carter’s evidence (Aff 2 October 2018) that the following documents contain restricted information:

20. [90]

    I am satisfied by Mr Carter’s descriptions that all of those documents (in addition to the fact that many disclose the contents of the draft report) contain “restricted information” as defined under s 3 of the Transport Safety Investigation Act, and must not be disclosed to any person or to this Court under s 60(3).

21. [91]

    I note that between ss 26(2)(b) and 60(3), every document sought by the plaintiff in these proceedings is effectively precluded from production under the Transport Safety Investigation Act. For completeness and because it relates to the first two grounds for privilege, I will address the defendants third ground.

(3) Whether the documents contain “protected confidences”

1. [92]

   The third basis upon which the defendant resists production of the documents is that they contain “protected confidences” such that disclosure is prohibited under s 126B of the Evidence Act.

2. [93]

   Section 126A of the Evidence Act provides that in relation to s 126B:

3. [94]

   Section 126B of the Evidence Act reads:

4. [95]

   Section 131A of the Evidence Act provides that s 126B can be used in the context of a pre-trial discovery with “any necessary modifications as if the objection to giving information or providing the document were an objection to the giving or adducing of evidence.”

5. [96]

   Section 126B confers on a Court a discretion to refuse evidence of a confidential communication which discloses a “protected confidence”. As a corollary, the mere fact that a document is confidential does not automatically result in the Court making an order under s 126B. Rather, the Court's discretion is to be exercised by reference to factors including those contained in s 126B(4) for the purpose of determining if there will be sufficient harm to a protected confider to exclude the evidence (for the purposes of s 126B(3)).

6. [97]

   In order for s 126B to be enlivened, the Court must be satisfied that there is a sufficient likelihood of harm being caused (and that such harm outweighs the desirability of the evidence being given): see Patakas v Bevan [2016] NSWSC 1618 at [32]. The only defined aspects of the term “harm” which are relevant to the present case are financial loss or damage to reputation. There is no elaboration on the level of financial loss or reputational damage that would be required. However, cases concerning the Freedom of Information Act 1982 (Cth) suggest that something more than mere irritation, embarrassment or inconvenience is required: see Freedom of Information Guidelines, version 1.4 (December 2016) [5.150]; Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73 (“Jorgensen”) at 77.

7. [98]

   The UCPR dictionary provides that “privileged information” includes:

8. [99]

   In the letter dated 14 May 2018 from AGS to Norton White in these proceedings (Carter Aff 2 October 2018 p 80), the defendant asserts:

9. [100]

   The plaintiff submitted that in the event that there is a protected confidence which enlivens s 126B, it is unlikely that the defendant would suffer the requisite harm in the form of financial loss as a result of the internal emails being disclosed.

10. [101]

    The only remaining issue is the extent to which the defendant, a government agency, would suffer damage to its reputation. It is difficult to see how CASA might suffer such substantial prejudice to its affairs so as to amount to the necessary “harm”. Even if the emails do disclose wrongdoing on the part of CASA and might give rise to embarrassment or political controversy, this is not a relevant consideration under s 126B: see Jorgensen at [14]; see also Sankey v Whitlam (1978) 142 CLR 1 (“Sankey”) per Gibbs ACJ at [40].

11. [102]

    If necessary, there are means available to the Court to limit the harm or extent of the harm that is likely to be caused directly or indirectly if the evidence of the protected confidence were disclosed: see Evidence Act 126B(4)(f).

12. [103]

    Finally, the plaintiff submitted that insofar as the documents record a protected confidence, the defendant will be able to comply with its discovery obligations under UCPR 21.5(2) by redacting those portions of any document that record a protected confidence and disclosing only the balance of such a document.

13. [104]

    The defendant submitted that to the extent to which the documents contain a protected confidence, or tie contents of a document recording a protected confidence, or protected identity information, s 126B of the Evidence Act is enlivened and the court most give a direction precluding disclosure of the documents if it is satisfied that the statutory balancing test in s 126B(3) rests in favour of such a direction.

14. [105]

    The internal emails in question constitute “protected confidences” for the purposes of s 126B of the Evidence Act. As the affidavit of Mr Carter on 2 October 2018 reveals, the circumstance in which those documents came into existence was the advent of a draft report provided to CASA by the ATSB within the context of developing CASA’s response to that document under the DIP process. The public interest in preserving the confidentiality of protected confidences in the specific context of the DIP process that is at the heart of the discharge by the ATSB of its accident investigation functions, and CASA’s obligation to cooperate with the ATSB in relation to accident investigation is compelling.

15. [106]

    The recent decision of the English High Court in Chief Constable of Sussex Police v Secretary of State for Transport [2016] EWHC 2280 (QB) (“Sussex”) emphasizes the public interest factors underpinning the aviation accident investigation processes that apply equally to Australia. In particular, the Court considered at [44] that “the legislative scheme in the present context sets out its own carefully crafted code, which governs the present kind of application”. The Court refused to order disclosure of confidential documentary material in the possession of the Air Accidents Investigation Branch of the UK Department of Transport for purposes unrelated to the ATSB’s investigation of an air accident. The analogous legislative scheme in the present context is, a fortiori, a ‘carefully crafted code’ with a consultative process established under the Transport Safety Investigation Act to secure the opinions and analyses of persons “directly interested” in the safety outcome of ATSB investigations and where CASA, as a DIP, has an obligation to render full assistance to the ATSB in respect of air accident investigations.

16. [107]

    In determining whether the information contained in the documents to question is “privileged information”, there is a far stronger analogy with the principles of public interest privilege than client legal privilege in Part 3.10 of the Evidence Act as suggested by the plaintiff. The general public interest principle is that a court will not order the production of information or a document, even if relevant or otherwise admissible, if it would be injurious to the public interest to disclose it: see Sankey at [38] and The Australian Statistician v Leighton Contractors (2008) 36 WAR 83 at [30].

17. [108]

    Public interest privilege protects from disclosure information that has a “governmental connection”, which is broadly defined: Neilson v Laugharne [1981] 1 QB 736 at 747-748. The privilege extends to bodies performing statutory functions: Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22.

18. [109]

    In considering a public interest privilege claim as such or, more specifically, the “public interest in preserving the confidentiality of protected confidences”, it is not necessary to establish that harm to the public interest will arise from disclosure as a matter of probability. Rather, the proper test is whether harm to the public interest could arise, as a matter of real possibility. The incurring of a real risk of harm is itself injurious to the public interest: see Conway v Rimmer [1968] AC 910 at 940, referred to with approval by Gibbs ACJ in Sankey.

19. [110]

    The experience of officials who give evidence in support of privilege claims that are heavily based on public interest grounds in a particular statutory context place them in a special position to assess the possible damage to the public interest that would arise if the documents in question were released for inspection by a private plaintiff. Where the impact of disclosure on the public interest is peculiarly within the knowledge of the executive, its contentions will be given “particular weight”: Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38. (While the High Court in Commonwealth v Northern Land Council (1993) 176 CLR 604 reversed the result, it did not question the six factors the Full Federal Court indicated should be considered in any balancing exercise, this being one of them.) In accordance with established principle, the Court should place significant weight on the evidence of Messrs Hornby and Carter, including their opinions: see Rogers v Home Secretary [1973] AC 388 at 406C; Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1143; and Sankey.

20. [111]

    In the balancing exercise, there is a tension between the public interest sought to be protected in maintaining the confidentiality of certain material and the needs of litigants for full disclosure. In Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-676, Hunt CJ at CL examined this issue. His Honour at 675 considered that the balancing exercise required could only be undertaken where it appears that: (a) “damage would be done to the public interest by producing the documents sought or documents of that class”, and (b) “there are or are likely to be documents which contain material which is relevant to the issues raised in the proceedings”. When the question of public interest privilege is raised, the Court will be concerned to prevent fishing requests for documents upon a “bare unsupported assertion that upon such an inspection something may be found which is helpful” to the party seeking that inspection.

21. [112]

    In short, the party seeking inspection even of discovered documents must first demonstrate a legitimate forensic need for the information. The very broad categories of discovery in the present case are apt to catch documents that go well beyond a legitimate forensic purpose justifying inspection of every discovered document:

22. [113]

    Public interest immunity operates to protect from production, in the public interest, both the contents of particular documents and also the documents felling within certain classes. There are many well-established classes (such as Cabinet deliberations, police informer identity, etc), but the classes are not closed. Although not all legislation “embodies public policy at a high level”, the present Commonwealth legislative framework in the context of Australia’s international treaty obligations clearly raises policy considerations to a very high level: Sportsbet Pty Limited v State of New South Wales (No 3) [2009] 262 ALR 27 at [39] - [40].

23. [114]

    In the present context, all documents raised for the purposes of the defendant engaging in the DIP processes of the ATSB warrant protection of professional relationship confidentiality and public interest immunity as a class of documents. The exchange of communications with the ATSB by CASA and its internal communications facilitating a response to the draft report of the ATSB are all part and parcel of the DIP process. Without full protection to the documents in question as a class, there will be a tendency for the disclosure of some documents to reveal the DIP process deliberations. This would be contrary to the objects of the Transport Safety Investigation Act, and would not be consistent with the procedures that the international community (as signatories to the Chicago Convention) expect to be followed by all member countries involved in air accident investigation.

24. [115]

    There is a strong public interest in air accident investigation and the determination by the ATSB of factors affecting aviation safety remaining uninhibited. The balancing of factors involved in public interest immunity and for the purposes of s 126B (4) of the Evidence Act produce the same result: the public interest in the preservation of the confidentiality of the DIP process, and the integrity of the holistic approach to aviation accident investigation, outweigh disclosure of documents relating to that investigation for private litigious purposes.

25. [116]

    Both parties made reference to the dictionary definition of “privileged document” under the UCPR, which is “a document which contains privileged information”. For the purpose of the present application, privileged information certainly includes para (b), “information that discloses a protected confidence, the contents of a document recording a protected confidence or protected identity information (within the meaning of s 126B of the Evidence Act 1995)”, where under para (b)(i) the protected confider has not consented to disclosure.

26. [117]

    Counsel for the plaintiff submitted that for the purposes of these proceedings, only those documents which fall under ss 26(2)(b) or 60 of the Transport Safety Investigation Act will potentially disclose a protected confidence under s 126B of the Evidence Act. To the extent that certain documents are captured by those provisions, the Court must then engage in the balancing exercise specified under s 126B(3). It is the plaintiff’s position that even if certain documents are determined to relay a protected confidence, the defendant is unlikely to suffer the requisite financial or reputational harm under s 126B(3) so as to favour an order that they not be adduced (T21.41).

27. [118]

    However, in addition to information which discloses a protected confidence, privileged information also includes para (h):

28. [119]

    Counsel for the defendant submitted that if only para (b) of the UCPR definition of “privileged information” were relevant, the Court could engage in the balancing exercise in s 126B(3). However, because para (h) also defines as privileged any information whose disclosure, production, admission or use in proceedings would be contrary to the Transport Safety Investigation Act, then the Court’s discretion is pre-empted by the clear statutory prohibitions on production in ss 26(2) and 60(3).

29. [120]

    Ultimately, the argument before this Court, as with AWB, is “merely an argument about the sufficiency of evidence” (AWB at [101]). This is not a case in which a defendant resists production of hundreds of a certain class of document. The defendant has already produced numerous documents from other categories from its list, and only resists production of the relevant documents from categories 1H and 1I.

30. [121]

    These 31 documents have been thoroughly and carefully considered by Mr Carter. It is his evidence that documents 92-122 each disclose a protected confidence as defined by s 126A of the Evidence Act, and that pursuant to s 126B(3), the harm involved in undermining the confidentiality of communications protected by provisions in the Transportation Safety Investigation Act outweighs the desirability of disclosure (Carter Aff, 2 October 2018, p 11).

31. [122]

    Moreover, it is his evidence, for the reasons already outlined, that documents 92-122 disclose the contents of the draft report and/or contain restricted information. On the basis of this evidence, it is not necessary to engage in the balancing exercise within s 126B(3) of the Evidence Act, as the documents are privileged under the definition of “privileged information” in para (h) of the UCPR.

32. [123]

    There is no evidence that Mr Carter lacks credibility or has acted in anything but good faith. In my view, his evidence that the effect of these documents, if disclosed, would be that CASA or any officer who was party to the communications would be in breach of the Transport Safety Investigation Act, should be accepted. To second guess his determination and order that this Court have access to the documents would contravene clear statutory prohibitions.

33. [124]

    In summary, I am satisfied that:

34. [125]

    In light of these clear statutory prohibitions on production, it is not necessary to determine whether the documents contain “protected confidences” pursuant to s 126B of the Evidence Act.

35. [126]

    The order seeking documents for production and inspection is refused. The result is that the plaintiff’s notice of motion filed 7 September 2018 seeking an order to produce Documents 92-122 within Part 1H and 1I for inspection is dismissed.

Costs

1. [127]

   Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant’s costs on an ordinary basis.