FEDERAL COURT OF AUSTRALIA Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 439 PORT KEMBLA COAL TERMINAL LTD v BRAVERUS MARITIME INC N 1397 of 2002 ALLSOP J 1 APRIL 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1397 of 2002 BETWEEN: PORT KEMBLA COAL TERMINAL LIMITED (ACN 003 942 774) PLAINTIFF AND: BRAVERUS MARITIME INC DEFENDANT/ CROSS-CLAIMANT/ COUNTER CROSS-DEFENDANT PORT KEMBLA PORT CORPORATION CROSS-DEFENDANT/ COUNTER CROSS-CLAIMANT JUDGE: ALLSOP J DATE OF ORDER: 1 APRIL 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The draft statement of Captain James provided to the Australian Transport Safety Bureau be produced by the cross-defendant to the cross-claimant. 2. Access to said draft statement be provided to all parties in the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1397 of 2002 BETWEEN: PORT KEMBLA COAL TERMINAL LIMITED (ACN 003 942 774) PLAINTIFF AND: BRAVERUS MARITIME INC DEFENDANT/ CROSS-CLAIMANT/ COUNTER CROSS-DEFENDANT PORT KEMBLA PORT CORPORATION CROSS-DEFENDANT/ COUNTER CROSS-CLAIMANT JUDGE: ALLSOP J DATE: 1 APRIL 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The matter before me covers a challenge by the defendant, Braverus Maritime Inc to the cross-defendant's claim for legal professional privilege over a number of documents. Evidence has been led before me as to the nature of the privilege. During the course of that evidence it became apparent that a document said to be a draft statement of the pilot, Captain James, was provided to the Australian Transport Safety Bureau at some time. 2 The Australian Transport Safety Bureau, which I shall refer to as the ATSB, has produced a report numbered 178 which was compiled after investigation under the Navigation (Marine Casualty) Regulations 1990 (Cth) (the "Regulations"). The ship in this case collided with a fixed wharf at Port Kembla at the coal loader and caused significant damage to the coal loader and the wharf. That investigation was completed in March 2003. 3 There has been evidence given as to the privileged nature of the draft statements of Captain James. Put shortly, within 24 hours or thereabouts after the incident which occurred at 2.00 pm on 15 April 2002, the lawyers retained by the liability underwriters of the Ports Corporation, had requested assistance and information in relation to giving advice as to the Corporation's position and in respect of litigation that was perceived as possible. 4 The bulk carrier MV S.A. Fortius that collided with the wharf and loader was under pilotage at the time, Port Kembla being a compulsory pilotage port. The pilot, Captain James, is employed by the Ports Corporation. One draft statement, not Captain James' final statement, was apparently provided to the ATSB. Mr Rich, who appears for the Ports Corporation, says that it "came into the possession of" the ATSB. There is no evidence as to how that occurred. I do not know who provided it to the ATSB, but I infer that the ATSB did not obtain the document in any fashion that was untoward. I infer that it was provided as the draft statement of Captain James by someone who had possession of it and who must have been either Captain James or someone else within the Ports Corporation. There is no evidence of any mistake. There is no evidence of any circumstance of attendant confidentiality other than the statutory and regulatory structure of the ATSB. 5 If the draft statement was given to the ATSB after the completion of its investigations, there is probably no argument that it was given openly. If it was given as I find, prior to the completion of the ATSB's investigation, one must have regard to the Regulations. It can be legitimately said, as Mr Rich does, that there is a regime of confidentiality contained in regulation 15 of the Regulations. Under regulation 15(1), the inspector or investigator must not divulge information or produce a document containing information, to a Court, or to any person, other than as identified, if that information is information or documents to which the sub-regulation applies, except in performance of duties or in the exercise of powers. 6 There is no evidence of any limitation on the provision of the information and I must assume that it was given for the purposes of the investigation. In those circumstances it could have been information, which could be used by the ATSB in the drafting of its Public Investigation Report, which ultimately was made available to the public. There would be nothing preventing the ATSB in the drafting of that report from quoting from the draft statement extensively. 7 Further, I am satisfied that the regime of confidentiality provided for the capacity of the Court under regulation 15 to require production of that from the inspector or investigator as long as the pre-conditions of regulation 15 (5) were complied with. Regulation 15 (5) contains a public benefit test and additional tests that need to be satisfied if certain types of records are to be made available to Court. 8 Mr Rich put the submission that if the document does not fall, as this draft statement does not, within the purview of documents identified in regulation 15 (5) (b), then the Court can never order or authorise the disclosure of information, because regulation 15 (5) (b) can never be satisfied. I reject that submission. In my view regulation 15 (5) (b) is tolerably clear. There is an additional requirement for the consent of particular people in the case of the particular document that is identified. If the document or the information is not of the kind identified in sub-regulation (5) (b), then sub-regulation (5) (b) does not apply. 9 On the evidence, I can only but find that the draft statement was provided to the ATSB without apparent specific confidentiality restraint, in circumstances where the ATSB was free to use the draft statement for its public purposes which included the publication of its report and which purposes were confined by regulation 15. In those circumstances, though there is an element of confidentiality as to the ATSB's use and position, I am satisfied that the provision of the document by the Corporation for the use of it by a statutory authority or another government agency in circumstances where it might be made openly public by the terms of any investigation report was an act inconsistent with the maintenance of the confidential aspect of the legal professional privilege. 10 So, pursuant to the reasons of the majority in Mann v. Carnell (1999) 201 CLR 1, in my view, the privilege has been waived. I fully appreciate that the mere provision to a third party in circumstances of true confidentiality does not necessarily mean the end of the privilege. However, for the reasons I have given, in my view, there is now an inconsistency in the maintenance of a privilege, the Ports Corporation having provided the document to the ATSB for the latter's own purposes. 11 I am dealing with the matter under common law; I have not referred to the Evidence Act 1995 (Cth) because at this stage, evidence is not being adduced. In my view, the so-called draft statement given to the ATSB is not privileged and should be produced. 12 I have not found it necessary because of the view I have taken, to decide the question as to whether the so-called draft statement of Captain James is in fact a statement for the purposes of regulation 15. On balance, if I had to decide that, given that it was given to the ATSB for the purposes of their deliberations, I am prepared to infer that at least at that point it was considered to reflect the evidence of Captain James and so would probably fall within the description of it being a statement of Captain James. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 15 April 2004 Solicitor for the Plaintiff: Blake Dawson Waldron Counsel for the Defendant/ Cross-Claimant/ Counter Cross-Defendant: Mr S.D. Rares SC Dr A.S. Bell Solicitor for the Defendant/ Cross-Claimant/ Counter Cross-Defendant: Ebsworth & Ebsworth Counsel for the Cross Defendant - Counter Cross-Claimant: Mr G.K.J. Rich Solicitor for the Cross Defendant - Counter Cross-Claimant: Thynne & Macartney Date of Hearing: 1 April 2004 Date of Judgment: 1 April 2004