Semple v Commonwealth of Australia

The plaintiff in these proceedings sues the Commonwealth in relation to the alleged contamination of his property and business with per- and poly-fluoroalkyl substances (“PFAS”) allegedly escaping from the RAAF Base at Wagga. He brings this action in nuisance, negligence and breach of statutory duty by a statement of claim filed on 26 June 2024.

Similar issues were the subject of representative proceedings in the Federal Court of Australia in the matter of Haswell and Anor v Commonwealth of Australia matter number NSD431/2020. Those proceedings I am informed were resolved by settlement. I am told the plaintiff had been a member of the class in those proceedings but opted out, as he was entitled to do.

In the course of preparation of those proceedings, four documents the subject of the application before me, were brought into existence. They are identified in the form of order that the parties ask me to make, and I need not list them here. They consist of a joint expert report produced pursuant to directions of the Federal Court, and three witness affidavits of lay persons who have knowledge of the use of PFAS at the Wagga Air Base.

Counsel, being Ms Graus for the plaintiff and Mr Cooper for the defendant, are in agreement that those documents are subject to the implied undertaking associated with Harman v Secretary of State for the Home Department [1983] 1 AC 280, and Hearne v Street (2008) 235 CLR 125. The plaintiff has sought discovery of those documents, and the defendant is willing to provide discovery. A difficulty, procedurally speaking, arose when the matter was before the Duty Registrar because, with great respect to her, she had some concern about whether a Registrar had power to order discovery in respect of documents which were subject to the implied undertaking to which I have referred, and accordingly she referred the matter to me sitting as Duty Judge today.

As I have said, counsel have adopted a joint position. I should observe in passing that although the Registrar's caution may be understandable, from the supplementary written submissions prepared by Mr Cooper of counsel it does seem that the Registrar has delegated authority to deal generally with matters of discovery, and case management orders made by consent under delegations made by the Chief Justice pursuant to his powers under section 13 of the Civil Procedure Act 2005 (NSW). So far as Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) is concerned, I accept Mr Cooper, with respect, accurately refers to a delegation to Registrars of 28 November 2022. That same instrument delegates the power to make consent orders. It is worthwhile that these matters be clearly stated.

I also accept that as what was sought is an order made by way of this Court's compulsive powers in respect of discovery, by necessary implication the implied undertaking, to adopt the language used by Ms Graus, must yield, as it were, in the face this Court's power, but only to that extent. The undertaking inures otherwise, and to the extent to which the documents are released to the plaintiff for use in the proceedings, the plaintiff is also subject to an implied undertaking. Therefore, I accept that the orders of the Court do not require an order in express terms releasing the Commonwealth from the implied undertaking either in whole or in part.

For these reasons I make an order in accordance with the agreed order handed up in Court, signed by me and dated today. To the extent necessary the order may be entered forthwith.