Australian International Aviation College Pty Limited v Zheng (No 2)

1. [1]

   MITCHELMORE JA: I agree with Ball JA.

2. [2]

   MCHUGH JA: I agree with Ball JA.

3. [3]

   BALL JA: By a summons filed on 26 June 2025, the applicant, Australian International Aviation College Pty Ltd (AIAC), seeks leave (out of time) to appeal against orders made by the primary judge (Garling J) on 12 February 2025 under s 192A of the Evidence Act 1995 (NSW) that two documents the respondent, Mr Shenglong Zheng, seeks to rely on at trial are not inadmissible by reason of the provisions of the Transport Safety Investigation Act 2003 (Cth) (the TSIA). That advance ruling on evidence was made following the delivery of reasons by the primary judge on 20 December 2024: see Zheng v Australian International Aviation College Pty Ltd [2024] NSWSC 1622 (PJ).

4. [4]

   The application for leave to appeal was filed out of time due to an error by the solicitor for AIAC. It is not suggested that Mr Zheng suffered any prejudice as a consequence of the delay and he made no submissions opposing leave to extend time. In those circumstances, an extension of time should be granted for the filing of the summons. However, for reasons which follow, in my opinion, the summons should otherwise be dismissed with costs.

Background

1. [5]

   AIAC operates an aircraft pilot training college based in Port Macquarie, New South Wales. Mr Zheng was one of its students. On the evening of 8 September 2017, he was seriously injured when the aircraft he was in on a training flight crashed into trees shortly after take-off.

2. [6]

   On 1 March 2021, Mr Zheng commenced proceedings in the District Court against, relevantly, AIAC claiming personal injury damages for negligence arising out of the crash. In its defence, AIAC admits that its employee, the flight instructor, had control of the aircraft at all relevant times and admits the crash. It admits some, but not all of the details of the flight. It does not admit the details of what the instructor is said to have done shortly after take‑off. Nor does it admit the details of how the aircraft behaved before the crash.

3. [7]

   The proceedings were transferred to the Supreme Court on 23 December 2021. Prior to their transfer, on 1 December 2021, Mr Zheng served on AIAC a report prepared by an aviation expert, Mr Bruce Simpson, relevant to the question of liability (the Simpson Report). One of the documents relied on by Mr Simpson in preparing his report was a report dated 24 September 2017 titled “Accident Report and Operational Recommencement Plan” that had been prepared by AIAC (the AIAC Report). It is those two documents that were the subject of his Honour’s advance ruling under s 192A.

4. [8]

   As is obvious from its date, the AIAC Report was prepared shortly after the accident. It was prepared in a context where AIAC had ceased to fly following the accident. The primary judge found (and this finding is not challenged) that “the principal purpose of the Report was not to enable a final concluded view to be formed about the cause of the aircraft crash but, rather, was to enable flying operations to be resumed and, to the extent that approval or acquiescence was required so to do from CASA [the Civil Aviation Safety Authority], that such would be forthcoming” (PJ [62]; see also PJ[83]). Mr Zheng had obtained a copy of the report in response to a subpoena to produce documents issued on 7 October 2021 that he had served on CASA. The AIAC Report included information that had been extracted from two electronic recording devices that were installed in the aircraft. The first was a data card for a Garmin G1000 integrated avionics system (the G1000) which recorded sixty flight and engine data parameters. The second was a data card for the electronic engine control unit (ECU) which recorded data in relation to the engine and propeller.

5. [9]

   Responsibility for investigating transport accidents in Australia is vested in the Australian Transport Safety Bureau (ATSB) under the TSIA.

6. [10]

   ATSB is given power to investigate “any transport safety matter” (s 21). The function of ATSB is to improve transport safety. It is not:

7. [11]

   Following an investigation, ATSB must as soon as practicable produce a report: s 25. For the purpose of preparing its report, ATSB is given various investigative powers including a power to require a person to attend and answer questions or produce “evidential material” (s 32) and a power to remove evidential material with the consent of the owner of the material or, if it is not practical to obtain that consent, the consent of the occupier of the premises where the material is located (s 36(1)). ATSB may also apply for a warrant to enter premises and seize evidential material (s 40). Any evidential material that is obtained must be returned to the owner when it is no longer needed for the purpose of an investigation unless it is required for some other investigation or a coronial inquiry (s 45).

8. [12]

   A report prepared by ATSB is not admissible in evidence in any civil or criminal proceedings, although it is admissible in a coronial inquiry (s 27).

9. [13]

   Sections 60 to 62, which are central to the resolution of the current application, provide:

10. [14]

    “Restricted information” is defined in s 3 to mean:

11. [15]

    “OBR information” is information obtained from on-board recording equipment, which in essence is equipment which records sounds or images “in the control area of a transport vehicle” (s 48). The TSIA contains detailed provisions concerning information of that type, which are not relevant to the current application.

12. [16]

    Immediately following the crash, ATSB commenced an investigation of it. For that purpose, it sought to obtain any information that was available from the G1000 and ECU data cards.

13. [17]

    It is not entirely clear from the evidence when ATSB obtained possession of the cards themselves. The primary judge makes no specific finding on that question. In an affidavit sworn on 8 April 2024, the solicitor for AIAC says (at para 10) that “[d]ata cards for the G1000 and ECU that were part of the Aircraft wreckage were retained by ATSB as part of their investigation”. But it is not entirely clear from that evidence whether ATSB took possession of the cards at the crash site or subsequently. What is clear, however, is that ATSB did not have the ability to download any data from the cards and that was done either by AIAC or the engine manufacturer and provided by AIAC to ATSB. They were subsequently used by AIAC to prepare the AIAC Report.

14. [18]

    On 30 June 2020, ATSB published its final report in relation to the crash. The primary judge found (PJ [23]) that “[a]t least by that time (if not earlier), the ATSB investigation had been completed”. It is unclear from the evidence whether the data cards have been returned to AIAC.

Conclusions of the primary judge

1. [19]

   After considering whether it was appropriate to make an advance ruling under s 192A and concluding that it was, the primary judge found that the information in the AIAC report “did not come from the ATSB” (PJ[85]). Rather, his Honour found at PJ[85]:

2. [20]

   The primary judge also concluded that the inadmissibility of a document under ss 60(6)-60(8) of the TSIA arises “when the Court exercises its power under those sections, but only once a Certificate is issued under s 60(5)” (PJ[89]). In the present case, no such certificate was issued.

Principles relating to a grant of leave

1. [21]

   The principles relating to a grant of leave to appeal are not in doubt. A grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 at [35] per Bell P and Payne JA; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46] per Campbell JA (Young and Meagher JJA agreeing); Secretary, Department of Family and Community Services (NSW) v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] per Gleeson JA (Macfarlan and Payne JJA agreeing); Gibson v Drumm [2016] NSWCA 206 at [19] per Beazley P and Simpson JA; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 per Kirby P at 3.

Proposed Grounds of Appeal

1. [22]

   AIAC advances three proposed grounds of appeal (a fourth was abandoned). It is not necessary to set those grounds out. In essence, the case AIAC seeks to advance is this:

   1. (1)

      The cards or at least the data downloaded from the cards was “restricted information” within the meaning of the TSIA because it was “information recorded in relation to the operation of the vehicle”;

   2. (2)

      AIAC obtained access to that information from ATSB pursuant to s 62 of the TSIA;

   3. (3)

      Consequently, under s 60(3) of the TSIA, AIAC was not entitled to disclose that information “to any person or to a court”;

   4. (4)

      Therefore, it was a breach of s 60(3) for AIAC to provide the AIAC Report containing the information to CASA (and to AIAC’s parent company);

   5. (5)

      As a result, under s 60(8)(b) the information disclosed in the AIAC Report is not admissible in any civil proceedings; and

   6. (6)

      Similarly, to the extent that the information is contained or disclosed in the Simpson Report, that report is not admissible in any civil proceedings.

Consideration

1. [23]

   In my opinion, the argument advanced by AIAC cannot succeed.

2. [24]

   It is not correct to say that the cards themselves are information. They are physical items of equipment which may or may not contain information. The TSIA draws a clear distinction between physical things (which are described in various sections of the Act as “evidential material”) and information. Evidential material is not itself protected by s 60 and indeed it is liable to be returned when no longer of use to the investigation.

3. [25]

   Moreover, it is not correct to say that AIAC obtained access to the information on the data cards because it was authorised by ATSB to do so under s 62 of the TSIA (because ATSB considered that it was necessary or desirable for AIAC to have that access). It is apparent from the context that the restricted information with which s 62 is concerned is restricted information in the possession of ATSB. If a person has restricted information otherwise available to them, the person does not require authorisation from ATSB under s 62 to have access to that information. To take an example, restricted information includes “medical or private information regarding persons (including deceased persons) involved in a transport safety matter that is being or has been investigated”. But it seems obvious that a person who supplied information of that type to ATSB is entitled to have access to that information (and use it) without requiring an authorisation under s 62.

4. [26]

   In the present case, AIAC did not obtain the information on the cards from ATSB. Rather it downloaded or arranged for the information to be downloaded from the cards and provided it to ATSB. Moreover, the information was information to which AIAC was entitled, since it was information collected by equipment it owned or leased. Sections 60(3) and 62 of the TSIA should not be interpreted as containing an implied prohibition on a person from having access to and using information to which they are otherwise entitled. Rather, the prohibition is only on using information that a person did not have or otherwise have a right to that was supplied to the person by ATSB as part of ATSB’s investigation.

5. [27]

   Those conclusions are consistent with the evident purpose of the restrictions contained in ss 60 to 62 of the TSIA. As part of ATSB’s investigations, it is to be expected that it will collect information from a variety of sources. Much of that will be of a confidential nature. The purpose of ss 60 to 62 is to prevent ATSB from disclosing that information other than for the purposes of its investigation, to prevent persons to whom the information is disclosed for the purposes of the investigations themselves from disclosing the information and to prevent others from obtaining access to the information by causing a court to issue a subpoena or by some other means or using that information in court proceedings if it was wrongfully obtained. The purpose of the provisions is not to prevent a person otherwise entitled to the information from using it or obtaining access to it. In the present case, as I have already explained, AIAC was entitled to use the information on the data cards because it was its information. Mr Zheng was entitled to obtain access to that information because the information had been used to prepare a report that AIAC provided to CASA and Mr Zheng was entitled to serve a subpoena on CASA.

6. [28]

   Moreover, the analysis contended for by AIAC would have the result that data obtained from an aircraft’s electronic systems, which will often be critical in determining the cause of an accident and therefore questions of liability, will generally not be available for that purpose if the data is provided to ATSB in the course of an investigation. That cannot be the intended effect of the provisions, particularly in circumstances where it is not part of ATSB’s function to determine those questions.

7. [29]

   For those reasons, the application for leave to appeal has not disclosed an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable and must fail.

Disposition

1. [30]

   It follows that the orders of the Court should be:

   1. (1)

      Extend the time for filing and service of the summons seeking leave to appeal to 26 June 2025 pursuant to r 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW);

   2. (2)

      Summons otherwise dismissed;

   3. (3)

      The applicant to pay the respondent’s costs of the application for leave to appeal.