—_— + Sean ne ' wh 3 LIMITED DISTRIBUTION NOT FOR PUBLICATION IN THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) NO TG 14 OF 1987 ) ) GENERAL DIVISTON Between: AUSTRALIAN CONSERVATION FOUNDATION THE WILDERNESS SOCIETY INC. AND TASMANIAN CONSERVATION TRUST INC. (Applicants) And: FORESTRY COMMISSION (First Respondent) MICHAEL MANIFOLD HELSHAM ROBERT HENRY WALLACE PETER PHILIP HITCHCOCK (Second Respondents) MINUTES OF ORDER Coram: Ryan J. Date: 19 January 1988 Place: Hobart FEDERAL COURT OF THE COURT ORDERS THAT: AUSTRALIA CIPAL AUOITRY The two subpoenas for production of documents addressed to the Secretary to the Commission of Inquiry into Lemonthyme and Southern Forests and the two subpoenas addressed respectively to Peter Robotham Cranswick and Murray Russell Chambers be set aside. pec tae ce. fi . . - ore NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules. wo eee + IN THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) NO TG 14 OF 1987 } GENERAL DIVISION ) Between: AUSTRALIAN CONSERVATION FOUNDATION THE WILDERNESS SOCIETY INC. AND TASMANIAN CONSERVATION TRUST INC. (Applicants) And: FORESTRY COMMISSION (First Respondent) MICHAEL MANIFOLD HELSHAM ROBERT HENRY WALLACE PETER PHILIP HITCHCOCK (Second Respondents) Coram: Ryan J. Date: 19 January 1988 Place: Hobart REASONS FOR JUDGMENT By motion on notice dated 11 January 1988, the Secretary to the Commission of Inquiry into Lemonthyme and Southern Forests ("the Commission") seeks to have set aside two subpoenas for production of documents addressed to him, and one subpoena addressed to each of Senior and Junior soot Counsel assisting the Commission. All four subpoenas have been issued at the request of the applicants. The Schedule to the earlier subpoena, addressed to the Secretary to the Commission dated 21 December 1987, requires production of the following documents:-— "hy (a) (b) (c) All documents, notes, memoranda, reports, maps, records or other written material and copies thereof, which have been received by the Commission, any Commissioner, Counsel Assisting the Commission or any member of the staff of the Commission or Counsel Assisting (hereinafter collectively referred to as 'persons associated with the Inquiry') from @ person not being a person associated with the Inquiry; which have been prepared by a person associated with the Inquiry recording information or opinions supplied by any person not being a person associated with the Inquiry; which record information or opinions communicated to a consultant or other person being a person not associated with the Inquiry; excluding such material as: (i) (ii) has been taken in as evidence by the Commission at a public hearing; or does not contain information or opinions which are relevant to the determination of qualifying areas or definitely not qualifying areas and which does not assist in the understanding of and is unrelated to documents which do contain such information or opinions." The Schedule to the later subpoena to the Secretary, dated 4 January 1988, requires production of:- "1. All documents, notes, memoranda, reports, Maps, records or other written material and copies thereof, {a) which have been received by the Commission, any Commissioner, or any member of the staff of the Commission from Counsel Assisting the Commission, any consultant or other person assisting such Counsel; (b) which have been prepared by the Commission, any Commissioner or any member of staff of the Commission and addressed or delivered to Counsel or any other person assisting them," subject to an exclusion in identical terms to those appearing in the earlier subpoena which are set out above. By their application the applicants seek to review, under the Administrative Decisions (Judicial Review) Act 1977, the decision of the Commission that certain areas are definitely not qualifying areas within the meaning of s.8(5) of the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 ("the Commission of Inquiry Act"). The following six paragraphs comprise the grounds of the application:- "Ll. In making each of the said decisions the Second Respondents failed to take into account relevant consideration, namely: 2. (a) Whether the said areas: (1) constituted parts of larger areas which might qualify for World Heritage listing. (ii) contributed to the values of the other areas which might or did not definitely not qualify for: World Heritage listing. (iii) contributed to the integrity of other areas which might or did not definitely not qualify for World Heritage listing. (b) The values which might be held by such other areas referred to in (a) above; (c) Evidence presented to the Inquiry in relation to the matters referred to in (a) and (b) above; (d) The approach adopted by the IUCN and the World Heritage Committee in addressing the matters set out in (a) and (b) above. In making the said decisions the Second Respondents took into account irrelevant considerations, namely: (a) Forestry practices in general; (b) the nature of the forestry operations proposed for the said areas; (c) the fact that features of the coupes may be known to the Forestry Commission, and {d) the values of the trees in the said areas viewed in isolation from their surroundings. In breach of the rules of natural justice the Second Respondents, or one or more of them: (a) Received information from persons interested in the decisions of the Commission in private; In the second of two affidavits in support of the application Mr Alistair Menzies Graham has deposed, amongst (pb) Failed to reveal the fact the information had been received in private and the content of that information to parties appearing before the Commission; (c) Denied that any consultations had been held with representatives of industry, and (d) Expressed view to a person actively involved in the forestry industry indicating prejudgment of the issues. In obtaining information and expert opinion in relation to matters within the functions of the Commission of Inquiry in private and without revealing the fact thereof or the content thereof to the Applicants, the Second Respondents failed to observe procedures that were required by law to be observed 1n connection with the making of the decisions. The decisions constituted an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power. The decisions involved errors of law. other things, that:- "ll. The applicants made written submissions to the Commission concerning the approach to be taken to determining definitely not qualifying areas. A copy of those written submissions are now exhibited to me and marked "AMG48". In part, it was submitted that the Commission should identify the values which might be relevant to the particular area and then consider the proper boundaries which would be relevant to protection of the values identified, in accordance with the conditions of integrity wives amp oe 12. 13. 14, 15. set out by the IUCN in the operational guidelines. This latter exercise was the subject of a lengthy written submission in relation to the identification of qualifying areas prepared by the applicants, a copy of which is now exhibited to me and marked "AMG49", Some submissions were made by Counsel Assisting the Inquiry at public hearings. Exhibited to me and marked "AMG50" is a copy of the written submission dated 9 November 1987, which was circulated to the parties pursuant to the directions given by the Commission. Brief oral submissions were made by all parties, including Counsel assisting the Commission, and a copy of the transcript of those submissions, being pages 1567 - 1630, is now exhibited to me and marked "AMGS1". On 9th December, 1987 the applicants became aware for first time that the Presiding Member of the Commission had sought to obtain a written submission prepared by Counsel Assisting and a consultant employed by Counsel Assisting. Upon enquiry to Counsel Assisting, the applicants were informed that the submission was not intended to be made public. On 16 December 1987, the Commission issued a press release, a copy of which is now exhibited to me and marked "AMG52". The press release was accompanied by the said submission. The applicants have issued a Subpoena returnable on 8 January 1988 seeking copies of other written material which may have been supplied by Counsel Assisting to members of the Commission of Inquiry and not made part of the public record of the Inquiry. I have been informed and verily believe that the consultant employed by Counsel Assisting was Mr John Quick, a former Chief Commissioner of the Tasmanian Porestry Commission. Other than my said belief, I am unaware of any qualifications Mr Quick may have which would render him competent to advise in relation to world heritage qualifying areas. 16. Now exhibited to me and marked with the letter "AMG53" is a copy of the "Media Release" dated 29 November 1985 concerning an address given by Mr Quick to the Annual General Meeting of the Forest Industries Association of Tasmania (FIAT). 17. On ilth December 1987, the Presiding Member of the Commission of Inquiry made a statement concerning a meeting held by him and the other members of the Commission with the legal practitioner appearing for the Forestry Commission. Exhibited to me and marked with the letter "AMG54" is a copy of that statement. I do not know on what days the other meeting or meetings referred to by the Presiding Member took place and the applicants have no independent information as to what was said and by whom at those meetings. A Subpoena has been issued to the Secretary of the Commission seeking certain documents, which Subpoena will he returnable on 8 January 1988." By his notice of motion, the Secretary to the Commission seeks, first, that the subpoenas be set aside as being too wide, vexatious, fishing and oppressive. Further, or alternatively, it is sought that the subpoenas be set aside "so far as they seek to compel the production of documents which:- (a) are documents the production of which is not compellable by the process of subpoena; (b) are documents which are privileged from production". In my opinion, the present subpoenas are properly objectionable as being too wide, fishing and oppressive. In substance, the earlier subpoena to the Secretary to the Commission of 21 December 1987 requires, in the first place, production of all documents emanating from, or recording communications to the Commission by, a person not being a person associated with the Inquiry. In the second place, it requires production of all documents emanating from the Commission or any other person which record information or opinions communicated to any person not being a _ person associated with the Inquiry. A subpoena should contain a description of the documents sought "to enable the person to put his hand on the documents or the file without himself having to make a random search, in short, to know specifically what to look for"; Re Westinghouse Electric Corporation £19773 3 WLR 430 per Lord Denning M.R. at 437, a passage approved by a Full Court of this Court in Lucas Industries Ltd v Hewitt (1978) 18 A.L.R. 555 at 572-3. I consider that the form of the present subpoenas does not enable the Secretary to the Commission to put his hand on the documents sought, assuming that the Commission has filed and identified all of its documents with reasonable precision and efficiency. Rather, it obliges the Secretary to examine each and every document in the Commission's possession without limit as to subject matter, and decide whether it satisfies one or other of the convoluted descriptive criteria in sub-paragraphs (a), (b) and (c) of paragraph 1 of the Schedule. It is no answer to this objection to say that the exclusions in sub-paragraphs (i) and (ii) are framed to reduce the volume of documents which will ultimately have to be produced in response to the subpoena. The obligation, to filter, as it were, what is presumably a very large body of documents which satisfy one or other of the three descriptive criteria to which f have just referred, through two exclusionary criteria inherently difficult of ready application only increases the burden on the recipient of the subpoena. It is true that the qualifying criteria in sub-paragraphs (a) and (b) of paragraph 1 of the Schedule to the later subpoena dated 4 January 1988 are narrower than those in the earlier subpoena. Presumably, that would have the result that the Secretary would have to test a smaller number of documents against the exclusionary criteria. However, it would be no easier for the Secretary to put his hand on that smaller number of documents and, in my view, the differences discernible in the later subpoena are of degree rather than kind and are insufficient to save it from being oppressive. As IT understand it, the factual issues raised by the application for review of the Commission's decision as embodied in its Interim Report of 23 November 1987 which go beyond an examination of the Report itself and the evidence before the Commission, arise from allegations that the Commission received (and perhaps sought) information which ~ 10 - ~ influenced, or may have influenced, its decision without disclosing the receipt of that information to the applicants and other interested persons, or affording then any opportunity to be heard in respect of it. It has been accepted by Mr Basten of Counsel who appeared for the applicants, that the Commonwealth, which has been added as a respondent to the application, is entitled to further and better particulars of paragraphs 3 and 4 of the grounds of the application which embody those allegations. Those further and better particulars when supplied are likely significantly to circumscribe the documents relevant to those issues, but, even without particulars, I consider that the request in each of the subpoenas is too wide. The request in the first subpoena is not limited to documents embodying information from "persons interested in the decisions of the Commission", or going to the fact or substance of private consultations by the Commission with "representatives of industry", or containing any expression of view by the Commission to any "person actively involved in the forestry industry" indicating prejudgment of the issues, or tending to establish any such expression of view. The request in the second subpoena, to the extent that it can be said to be directed at all to documents bearing on those issues, equally clearly comprehends other documents unrelated to them. pn ee er me - ll - - Insofar as they seek documents which may evince some breach of the rules of natural justice which is not alleged in the grounds of the application, the requests in both subpoenas can be characterized also as fishing. Mr Basten acknowledged that the applicants' subpoenas required to be read down by treating them as seeking only documents coming into existence after November 1987, and as not seeking documents made available for inspection by interested parties although not tendered in evidence before the Commission. He also conceded that a limitation should be imported to relieve the Secretary from the need to produce documents already in the public domain, such as maps and library material, and documents which merely summarized or reproduced the primary communications, produced in response to either subpoena of persons not associated with the Inquiry. I have considered whether effect may be given to these concessions by setting aside the subpoenas in part only, by deleting references to some classes of documents, or inserting words of limitation into other parts of the schedule as was done in Lucas Industries Ltd v. Hewitt (above). However, the schedules to the present subpoenas are not readily severable in that way. Moreover, no formula was suggested in argument for overcoming the substantial objections that the subpoenas are too wide and oppressive, while still preserving some utility in requiring compliance with what remains. Accordingly, each of the subpoenas (narra ea an oo' was 8 aye - 12 ~ - addressed to the Secretary to the Commission, and those to Murray Russell Chambers and Peter Robotham Cranswick, must be set aside. The setting aside the subpoenas is without prejudice to the rights of the applicants to issue fresh subpoenas to the same or any other witnesses. The documents sought by any fresh subpoenas, or the classes into which those 'documents fall, should be described with sufficient precision to enable the recipient to extract the documents from his records without subjecting the whole of those records to a process of elimination. It should also be apparent from their description that the documents required are related to matters in issue in this litigation, as those matters may be defined by the further and better particulars which the applicants have been directed by my order of 14 January 1988 to supply by 22 January 1988. Mr Douglas Graham QC, for the Secretary to the Commission, also advanced argument in support of each of the limbs of the alternative ground of objection to the subpoenas, namely that they seek production of documents which the recipients are not compellable to produce or that their production would be contrary to the public interest. That second limb was said to be available because compliance with the subpoena would disclose sensitive information inhibiting the effective performance of the Commission's wre ee - 13 - ~ functions, or would infringe legai professional privilege. However, I am not persuaded that the nature of the Commission entails a complete immunity for its members or officers from being compelled to give any evidence about matters of which they acquire knowledge, or to produce all documents coming into their possession, in that capacity. In any event, should an immunity of that kind be claimed, it is for the Court to balance the competing public interests for and against compulsory disclosure or production; (see eg Sankey v. Whitlam (1978) 142 C.L.R. 1 per Gibbs A.C.J. at 38-39); and to decide whether the relationship of legal advisor and client in fact operated to afford the privilege. That wili usually require a detailed examination of particular documents or consideration of the matters in respect of which it is sought to compel testimony. It is therefore inappropriate in the present circumstances to attempt to resolve the issues raised by either limb of the alternative contention advanced on behalf of the Secretary to the Commission, I hereby certify that this and the twelve (12) preceding pages are a true copy of the reasons for judgment herein of His Honour Mr Justice Ryan. A Fava rn ve- Associate Dated: /7 Taneaey SUES, oF nen eee eee ene a ee rene nen ee a Seems. . - os ate le anna =e,