IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY NOT FOR GENERAL DISTRIBUTION No. ACT G 54 of 1986 GENERAL DIVISION wee ewe ww JUDGE MAKING ORDER BETWEEN: ROSALINA MELENA LOUIS, GRAHAM JAMES LOUIS, FERDINAND GRAHAM LOUIS I by his next friends Rosalina Melena Louis and Graham James Louis, RACHAEL ROSE LOUIS by her next friends Rosalina Melena Louis and Graham James Louis, MURRAY DANTEL LOUIS by his next friends Rosalina Melena Louis and Graham James Louis Applicants AND: THE COMMONWEALTH OF AUSTRALIA First Respondent QANTAS AIRWAYS LIMITED Second Respondent MINUTE, OF ORDER Neaves J. DATE OF ORDER WHERE MADE or 12 September 1986 Canberra THE COURT ORDERS THAT: 1. The application for leave to appeal from the orders made on 1 August 1986 by the Supreme Court of the Australian Capital Territory be dismissed. The applicants pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE PEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. ACT G 54 of 1986 ) ) ) GENERAL DIVISION BETWEEN : ROSALINA MELENA LOUIS, GRAHAM JAMES LOUIS, FERDINAND GRAHAM LOUIS I by his next friends Rosalina Melena Louis and Graham James Louis, RACHAEL ROSE LOUIS by her next friends Rosalina Melena Louis and Graham James Louis, MURRAY DANTEL LOUIS by his next friends Rosalina Melena Louis and Graham James Louis Applicants AND: THE COMMONWEALTH OF AUSTRALIA First Respondent QANTAS AIRWAYS LIMITED Second Respondent CORAM: Neaves J. DATE: 12 September 1986 REASONS FOR JUDGMENT This is an application under s.24 of the Federal Court of Australia Act 1976 (Cth) by Graham James Louis, his wife Rosalina Melena Louis, and their infant children Ferdinand Graham Louis I, Rachael Rose Louis and Murray Daniel Louis suing by their next friends Graham James Louis and Rosalina Melena Louis (a11 collectively referred to as "the applicants") for leave to appeal from interlocutory orders made by the 2. Supreme Court of the Australian Capital Territory (Miles C.J.) on 1 August 1986 upon two notices of motion filed in that Court on behalf of the applicants and dated respectively 9 April 1986 and 29 July 1986. It appears that on 27 June 1985 the applicants as plaintiffs commenced an action in the High Court of Australia against the Commonwealth of Australia ("the Commonwealth") and Qantas Airways Limited ("Qantas") as defendants. The gist of the action is that the Commonwealth, by employees of Qantas as their agents, falsely imprisoned and wrongfully arrested the applicants in Hong Kong, put them on board a Qantas aircraft and brought them to Australia against their will. Pursuant to s.44 of the Judiciary Act 1903 (Cth), the action was, by order of a Justice of the High Court, remitted for hearing and determination to the Supreme Court of the Australian Capital Territory. After pleadings had closed, the Supreme Court ordered the Commonwealth and Qantas to make discovery of the documents in their possession or power relevant to the issues in the action. In accordance with that order, an affidavit was sworn on behalf of the Commonwealth by Paul Edward Fergus on 25 July 1986. Mr Fergus, who described himself as the acting head of the Legal Activities Branch of the Department of Foreign Affairs, deposed that the Commonwealth had in its possession or power the documents relating to the matters in issue in the action which were described in the First Schedule to his affidavit. The schedule was divided into four parts. There was no objection to producing the documents described in part 1. Production of the documents described in part 2 was objected to on the ground of legal professional privilege. Public interest privilege was claimed in respect of unidentified parts of each of the documents described in part 3 and for the whole of each of the documents described in part 4. The grounds upon which public interest privilege was claimed were not made apparent except in so far as they could be deduced from the description of the particular documents. The affidavit of discovery filed on behalf of Qantas was that of Leslie James Fisk sworn on 10 July 1986. Mr Fisk described himself as the Corporate Secretary of Qantas and deposed that the company had in its possession or power the documents described in parts 1 and 2 of Schedule 1 to his affidavit. No objection was raised to the production of the documents described in part 1 but legal professional privilege was claimed in respect of the documents described in part 2. The notices of motion dated 9 April 1986 and 29 July 1986 filed on behalf of the applicants are somewhat obscure but the orders sought therein may be summarised as follows: (a) that the Commonwealth and Qantas give further and better discovery; (b) that the Commonwealth and Qantas produce for inspection the documents for which legal professional privilege and, in the case of the Commonwealth, public interest privilege was claimed; (c) that the Minister for Aviation produce all information relating to the forced entry of the applicants into Australia; 4. (d) that the Commonwealth and Qantas disclose the names and other details of their agents and servants involved in the events which are said to form the basis of the applicants' cause of action; (e) that Qantas produce information relating to conferences with the Commonwealth and its servants and agents relating to the events in question; (f) that the action be set down for trial immediately; (g) that the Supreme Court order that criminal charges be laid against the Commonwealth, Qantas and a named individual; and (h) that the Supreme Court order that the applicants' grievances be given media publicity. Orders for costs were also sought. When the matter came before the Supreme Court, Graham James Louis appeared in person. He sought to appear for the other applicants none of whom attended in person or appeared by solicitor or counsel. Miles C.J. did not find 1t necessary to determine whether Mr Louis was authorised to appear for the other applicants and treated the application before him as one by Mr Louis alone. After hearing argument, his Honour adjourned for further consideration the question whether the documents, or part documents, in respect of which the claim for public interest privilege had been made by the Commonwealth should be produced. Apart from the question of costs, which was reserved, his Honour declined to make any of the other 5. erders sought in the notices of motion. The order for further and better discovery was refused as, in his Honour's view, there had not been placed before the Court any material sufficient to raise a substantial possibility that there were in existence documents which were relevant to an issue in the action and which had not been discovered. Similarly, his Honour took the view that it had not been shown that the Minister for Aviation had any documents in his possession or power which were relevant to the case and which had not been discovered. No basis had been shown, so his Honour held, for directing the Commonwealth or Qantas to produce for inspection the documents in respect of which legal professional privilege was claimed, the description of the documents set out in the respective affidavits being sufficient, in the absence of any countervailing material, to indicate that the privilege was properly claimed. His Honour further held that it was quite inappropriate to order disclosure of the names of the persons involved in the events which were said to form the basis of the applicants' cause of action. In relation to the application that the action be set down for trial immediately, his Honour directed that the ordinary course of procedure in the Court be followed anda certificate of readiness be filed in the usual way. 6. The orders which are summarised in sub-pars (g) and (h) above were refused on the ground that it was doubtful if they were orders the Supreme Court had jurisdiction to make and on the further ground that there was no material before the Court which would justify their being made. Mr Lou1ls appeared in person before this Court and put submissions in support of the application. He submitted that leave to appeal should be granted in respect of all of the matters which the Supreme Court had determined adversely to the applicants. It 1s obvious, however, that a number of the issues raised before the Supreme Court are such that no case for leave to appeal could be made out. I refer, particularly, to the submission that the Supreme Court should order the laying of criminal charges, the submission that the applicants' grievances be given media publicity and the submission that the action should be set down for trial immediately. The only substantial issues that require consideration are whether the Commonwealth and Qantas should be ordered to give further and better discovery (the applicants not being able to point to any specific document not discovered) and whether inspection should be ordered of the documents in respect of which legal professional privilege was claimed. It 1s well settled that an affidavit of discovery 1s conclusive unless its insufficiency appears from the pleadings, the affidavit itself or the documents referred to therein, or from any other source that constitutes an admission of the existence of a discoverable document. The affidavit will also not be conclusive if it appears that a party has excluded documents under a misconception of the case. The standard of proof required to justify an order for further and better discovery 1s whether the Court has "reasonable ground for being fairly certain" that there are other relevant documents which ought to have been disclosed. To support these propositions 1t 1s sufficient to refer to British Association of Glass Bottle Manufacturers Ltd. v. Nettlefold £19121 A.C. 709; Mulley v. Manifold (1959) 103 C.L.R. 341; and Beecham Group Ltd. v. Bristol-Myers Co. £19791 V.R. 273. Similarly, where an objection is made on oath to the production of certain documents and the documents are sufficiently identified and the grounds upon which the objection is based are fully, distinctly and unequivocally stated, the affidavit will be regarded as conclusive unless the Court is satisfied that the oath of the party cannot be relied upon. Where a claim for privilege from production is made and the Court is not able to determine from the description of the document whether it is properly the subject of privilege, the Court may require a further affidavit to be filed or may itself inspect the document in order to resolve the question. In the present case the applicants have not demonstrated that any question of general importance would be raised by the proposed appeal. It 1s not suggested that the learned primary judge misunderstood or misinterpreted the relevant principles of law. What 1s involved is the application of well established and well understood principles to the particular circumstances of this case. Moreover, the power to order further and better discovery is discretionary and nothing that has been put to the Court indicates that the exercise of the discretion by the Supreme Court has miscarried. Nor has any basis been shown for doubting that the claim for legal professional privilege in respect of certain of the documents discovered was not well founded. The application is, therefore, dismissed. The applicants are to pay the respondents' costs of the application. I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Vw Associate Dated: 12 September 1986