COMMONWEALTH OF AUSTRALIA v RUNDLE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY (1) P, PRIESTLEY (1) JA AND MEAGHER (1) J 6 February 1989, 10 February 1989 [1989] NSWCA 44 CROWN — Crown privilege — public interest immunity production of document by Federal department — objection to documents alleged to have been provided by United States governmental agencies on the basis of an expectation of confidentiality — tests concerning the toxicity of chemical pesticides — litigant claims orders in the Land and Environment Court restraining use of pesticides pending environmental impact study — Bignold J dismisses motion by the Commonwealth to be excused from producing confidential documents but exempts production of documents involving business confidences — held: (dismissing summons for leave to appeal) No error shown such as would warrant the disturbance by the Court of Appeal of the exercise by Bignold J of his discretion in a matter of practice and procedure. In re the Will of F B Gilbert (1946) 46 SR (NSW) 318 referred to; Alister v The Queen (1984) 154 CLR 404 and John Fairfax and Sons Ltd and Another v Cojuangco (1988) 82 ALR 1 referred to. ORDER (As pronounced on 6 February 1989) Summons dismissed with costs. Kirby P , PRIESTLEY JA AND MEAGHER J. on 6 February 1989 the Court dismissed with costs a summons for leave to appeal from an interlocutory order of Bignold J in the Land and Environment Court. The order, made on 20 December 1988, dismissed with costs a notice of motion brought by the Commonwealth in proceedings in that Court which had been commenced by the opponent against the Council of the Shire of Tweed and the Far North Coast County Council. By its motion, the Commonwealth sought to be excused from producing to that court certain documents the subject of a subpoena duces tecum issued at the request of the opponent. The opponent is the lessee of premises owned by the Council of the Shire of Tweed. It is alleged by the Council that the premises, and those surrounding them, are blighted by a noxious weed, Groundsell Leaf. To eradicate the weed, the Council has apparently been using a pesticide known as "2,4-D". It is said that a chemical component of the pesticide is the same as that used in "Agent Orange". The alleged toxic effects of that product are the subject of a report by a Federal Royal Commissioner (P Evatt J). The opponent has commenced proceedings in the Land and Environment Court claiming that the use of 2,4-D is likely to affect the environment of her premises. Relief is claimed under sections 112 and 113 of the Environmental Planning and Assessment Act 1979. In effect, the opponent seeks declarations that the use of the pesticide is in breach of the Act. She seeks an order restraining that use, at least until an environmental impact statement has been prepared pursuant to the Act. The Court was informed that affidavit evidence has been filed in the Land and Environment Court both on behalf of the opponent and on behalf of the Councils which are the respondents to those proceedings. Those Councils are not concerned in the proceedings in this Court although they are aware of them. The Court was told that the opponent's evidence below includes affidavit evidence 2 UNREPORTED JUDGMENTS that she has felt unwell lately, ascribing her illness to the use of the pesticide on properties near her premises; letters from two medical experts concerning her illness; evidence of a farmer in the Murwillumbah district concerning the alleged damage to trees said to have been caused by the use of the pesticide; expert evidence concerning available biological methods by which Groundsell Leaf can be otherwise controlled; and expert evidence of a Dr Pollock, who has made a study of Agent Orange, concerning the effect on animals and humans of the use of herbicides such as 2,4-D The respondent councils assert, in effect, that the use of the pesticide 2,4-D poses no danger to the environment or to humans, including the opponent. The Court was told that their evidence relates to the use of the pesticide in Australia; its allegedly beneficial effect in saving endangered cereal crops, particularly in the Riverina district; the absence of evidence of human illness caused by the use of the pesticide (other than by direct ingestion of significant doses) with expert testimony in answer to that of Dr Pollock. The trial of the opponent's action in the Land and Environment Court, so defined, is listed to commence next week. We were told that evidence would be called in that Court from witnesses brought from interstate and from overseas. Obviously, it was desirable that this Court should conclude as quickly as possible its consideration of the Commonwealth's summons. For that reason, the hearing of the summons was expedited. The subpoena which was challenged before the Land and Environment Court was expressed in very wide terms. It was served on the Secretary of the Federal Department of Community Services and Health. It required the production to the Land and Environment Court of the following documents: "All documents, reports, articles or other writings in its possession, custody or control relating to the environmental and health effects of the herbicide 2,4-D". It was this subpoena which was the subject of the Commonwealth's motion. In short, the Commonwealth, on behalf of the recipient of the subpoena, sought to be excused from producing some of the documents in its possession which answered the subpoena. It did so on the ground not of the width of the subpoena (a matter which his Honour has reserved to be considered, if necessary, at the hearing) but on the ground of what is now called public interest immunity. The claim for exemption was in the nature of a class claim. Bignold J did not inspect the documents produced, it being contended that it was unnecessary for his Honour to do so to deal with the objection. The objection was dealt with below as a matter of principle, concerned with the class of documents mentioned in the subpoena. The evidence did not (as it was conceded) descend to a large degree of specificity concerning the documents mentioned. Although it was agreed that the evidence before Bignold J was incomplete, and although such evidence was not placed before this Court, we were asked to deal with the matter upon the basis that, in answer to the subpoena, the relevant officers of the Commonwealth could produce documents falling into three categories: 1. Reports about the pesticide 2,4-D, which are in the public domain. These documents have been, or will be, produced. There is no dispute concerning them. 2. Documents provided by chemical manufacturers which fall within the exclusion which Bignold J allowed. By that exclusion his Honour exempted the claimant from having to produce "material falling within the description "confidential commercial information" within the meaning of the Agricultural and Veterinary Chemicals Act 1988". In addition, there were certain summaries of such material which also fell within the exemption. These documents are not produced and are excused from production by the terms of Bignold J's order. URJ COMMONWEALTH OF AUSTRALIA v RUNDLE (Kirby P) 3 There was no dispute before us concerning them. 3. Confidential information said to have been received by the Commonwealth and its agencies from agencies in the United States of America. These documents were said to incorporate tests carried out on behalf of, or in conjunction with, the manufacturers of pesticides in the United States. It was this series of documents which were said to be immune from production. It was contended before us (although not formally proved) that the documents had been given to Australian authorities in microfiche form by agencies of the United States Government upon an expectation of confidentiality. The fear of the Commonwealth, as expressed by its counsel, was that disclosure in the present proceedings would be in breach of that expectation of confidentiality. It would thereby damage the supply of such information to the Commonwealth and its agencies. It would inhibit the supply of such information, although it is very useful for the clearances provided in Australia by a non- statutory system of control. It was asserted to be in the public interest that such system should operate with the benefit of the best possible information from the agencies of the Government of the United States. As was demonstrated during argument, there were numerous problems in the way in which the Commonwealth's case was mounted. Chief of these was the evidentiary basis upon which Bignold J had been asked to act and upon which this Court was invited to give leave to appeal from his Honour's decision. Furthermore, the Court could not be informed whether, either under the Freedom of Information Act 1976 (US) or the Freedom of Information Act 1982 (Cth) the documents sought in the subpoena would be producible to the opponent. It would seem unlikely that the public interest immunity claimed by the Commonwealth would extend so far as to protect documents which were, in any case, producible at least in this country by the operation of law. However, the most significant obstacle in the way of the Commonwealth was that of showing an error on the part of Bignold J which would warrant leave to appeal and the disturbance of his Honour's order. The principles governing decisions of the kind in question are well known. The authority usually cited is the judgment of Jordan CJ in In re The Will of F B Gilbert (1946) 46 SR (NSW) 318. Not only is the order challenged a discretionary one. It is also one of practice and procedure in respect of which particular restraints are accepted before appellate review is provided. The Commonwealth acknowledged these difficulties. But it suggested that Bignold J had erred in the following passage in his judgment: "... I would only add that the recent enactment of the [Agricultural and Veterinary Chemicals Act 1988] strengthens the position to obtain full information of the Australian Agricultural and Veterinary and Chemicals Council... and correspondingly weakens the basis for claim to public interest privilege in the present case". It was asserted by the Commonwealth that the mere fact that the pesticide 2.4-D was "cleared" by the relevant non-statutory Federal committee, established to advise the National Health and Medical Research Council on the release of pesticides in Australia, is irrelevant. So it is. But this does not mean that it can be said that all of the material potentially within the third category (the production of which is opposed) would be irrelevant to the issues which emerged from the above outline of the opponent's case in the Land and Environment Court. We have not seen the documents in the third category. Nor do we consider it necessary for us to do so. It is sufficient to say that it is not self-evident, as described, that they would be irrelevant to the opponent's case. It is the 4 UNREPORTED JUDGMENTS Commonwealth which seeks to be excused from producing them. Accordingly, it is the Commonwealth which must demonstrate (if that be its assertion) that they would be irrelevant. The Court was reminded of what Gibbs CJ said in Alister and Anor v The Queen (1984) 154 CLR 404 at 412. His Honour there stressed that the court is required to "consider two conflicting aspects of the public interest": "... namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration...". The Commonwealth complained that it had not been demonstrated that the documents in its category 3 were likely to contain evidence material to the proceedings in the Land and Environment Court. At least it had not been shown that any value the documents had could not be proved aliunde by the opponent, without exposing the risk of breaching the expectation of confidentiality upon the basis of which the material was originally supplied. When the documents are produced to the Land and Environment Court, it may appear that this is the case. In protecting information supplied in confidence, courts take pains to fashion their orders to protect the confidence, so far as this can be done consistently with the due administration of justice. Bignold J's order was interlocutory. This Court has been informed that the trial will take place before another judge of the Land and Environment Court. There is no reason why there should not be made to that judge fresh applications for relief from the production of documents in the third category, or particular documents amongst them. In saying so, this Court is not to be taken as encouraging such applications. It merely states the obvious fact that the Commonwealth is entitled to renew its application. It might do so upon additional evidence concerning the relationship with United States agencies and the possible impact of disclosure on inter-governmental relations which, it was conceded, was not properly proved in the evidence before Bignold J. It might do so with greater specificity in relation to particular documents in the third category which are considered especially sensitive. It might do so in a way that could give rise to particular orders by which the confidential information is supplied, in the first instance at least, only to the counsel appearing for the parties, and not to the parties themselves. The documents have apparently been supplied to Australian governmental agencies. They are therefore, presumably, available to authorised persons within those agencies. It is not self-evident that their supply to a court in Australia, or to counsel under the discipline of the court, would involve any greater risk of the haemorrhage of confidential or sensitive material than their supply to unspecified governmental officials of the Commonwealth. Although some of the references in Bignold J's judgment to the non- statutory system of clearances of pesticides were not strictly relevant to the exercise of the discretion enlivened by the motion, we do not consider that they caused his Honour's discretion to miscarry. His Honour referred to the appropriate authorities. He performed the "balancing function" referred to in those authorities He paid due regard to the public interest in the due administration of justice to which further emphasis has recently been given by the decision of the High Court of Australia in John Fairfax and Sons Ltd and Another v Cojuangco (1988) 82 ALR | at 7. He then fashioned a carefully framed order which exempted certain documents from the necessity of production. We see no error in the exercise of his Honour's discretion such as URJ COMMONWEALTH OF AUSTRALIA v RUNDLE (Kirby P) 5 would authorise the intervention of this Court. On the contrary, upon the materials before us, we do not consider that Bignold J's order was other than appropriate. It was for these reasons that the Court dismissed the Commonwealth's summons for leave to appeal with costs. Counsel for the Applicant: AG WHEALY QC / MR WILSON Counsel for the Opponent: P BASTON Solicitors for the Applicant: AUSTRALIAN GOVERNMENT SOLICITOR Solicitors for the Opponent: SLATER AND GORDON