Australian National Airlines Commission v The Commonwealth [1975] HCA 33

High Court of Australia Mason J. Australian National Airlines Commission v The Commonwealth [1975] HCA 33

Mason J. delivered the following written reasons for judgment on the second defendant's application for inspection of the CVR tape:—

May 30 Mason J.

I now propose to indicate very briefly that after hearing the application made on behalf of the defendant Canadian Pacific Airlines for leave to inspect the cockpit voice recorder tape installed in the plaintiff's aircraft, and having taken into account the objection to production advanced by the plantiff and the Commonwealth, supported by affidavits, including an affidavit sworn by the Minister for Transport, claiming that the public interest would be prejudicially affected by any disclosure of the tape, I thought it advisable to defer ruling on the application until such time as I heard the tape.

Having heard the tape in Melbourne yesterday, I am satisfied that it contains material which is relevant to the issues which arise for determination in this action and which could significantly influence its outcome. I am mindful also that the plaintiff had earlier played the cockpit voice recorder tape in the presence of its legal advisers and is aware of its contents and that the defendant Commonwealth had played the tape when making a duplicate copy whilst the tape was in its possession. In these circumstances I am satisfied that the defendant, Canadian Pacific Airlines, will suffer serious prejudice in the trial of this action if it is denied access to the tape and that it would be unfair to deny it the access that it seeks.

In coming to this conclusion I have had close regard to the minister's objection, based on the public interest, arising from possible detriment to air safety which may result from threatened industrial action on the part of the pilots to terminate the use of the cockpit voice recorders if the cockpit voice recorder tape in this case is disclosed. There is, however, a countervailing public interest, that which arises from the importance of maintaining public confidence in the independence of the judicial process and of preserving the right of the litigant to a fair trial. It is with these and other considerations in mind that I have granted access to counsel for the parties to two short sections of the cockpit voice recorder tape on terms that they are not to be disclosed to any person until further order. Having regard to the importance and the novelty of the claim to privilege which has been advanced, I shall, during the course of the trial, deliver detailed written reasons for my decision on this application.