CIVIL AVIATION AUTHORITY v AUSTRALIAN BROADCASTING COMMISSION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA 7 June 1994, 7 June 1994 [1994] NSWCA 50 Access to subpoenaed documents — Public interest immunity Clarke JA On 11 June 1993 Piper PA-350 Chiefton VHNDU crashed in the vicinityof Young Airport and a number of people were killed. As a result a number of investigations were put in hand and of course it became necessary for a coronial inquest to be held. At a mention before the Coroner on 15 December 1993 the inquest was fixed for hearing on 1 August 1994. Shortly after 9.00 am on 3 April 1994 the opponent broadcast over Radio National programme which consisted in the main of interviews between a reporter and various persons who claimed to have something to say about the aeroplane crash. Shortly after 7.15 pm on 5 April 1994 in the evening edition of Radio National, the opponent broadcast interviews which, so far as I have been able to tell, were substantially identical with the interviews broadcast earlier. There may be some differences but I do not think anything turns on the question of whether there were differences or not. The claimant which is an independent statutory authority filed a summons in this court on 15 April 1994 seeking orders, inter alia, that the opponent be found guilty of contempt of court for broadcasting material which had a tendency to interfere with the administration of justice in the State of New South Wales in connection with the coronial inquest identified in the statement of charge. The material in respect of which the complaint was made is the material contained in the two broadcasts I have identified. The contempt proceedings have been listed for hearing on Thursday 9 June 1994. The opponent in preparing for its case issued a subpoena directed to Mr Barry Sergeant, District Manager of the Bureau of Air Safety Investigation pursuant to leave granted on 17 May 1994. In that subpoena the production of a number of documents was sought. On 25 May 1994 documents were produced to the Deputy Registrar of the court in answer to a subpoena. They were Air Safety Occurrence Report 9301743, Air Safety Interim Recommendation IR930214, Air Safety Interim Recommendation IR930223 and an 81 page draft investigation report number 9301743. Upon their production the claimant made an application for an order that inspection of the documents be refused on the ground of public interest immunity. The matter was then referred to the motions judge of this court, who happened at the time to be me. The case came before me last Monday and due to the exigencies of time, I was not able to deal with it on that day. Because, however, it seemed to me important that the issues arising on the application be resolved before the hearing of the contempt proceedings I gave directions for the lodging of written submissions and set down the hearing of the application for today. 2 UNREPORTED JUDGMENTS I made it clear at the time that I would be limited in the amount of time that I would have available to hear the application and that indication led to the presentation by both parties of very full written submissions which are, in my opinion of very high quality. When the matter came on for hearing this morning, Mr Reynolds, counsel for the claimant reiterated the stand that he had taken before me on the last occasion that he did not oppose inspection of the documents other than the eighty-one page draft investigation report. He did, however, apply for an order that inspection of that document be refused on the ground I have mentioned He also indicated that he would be applying for an order that the subpoena be set aside as an abuse of process. I understood, and I think Mr Sexton for the opponent understood, that both these applications would be pursued today, as indeed it turned out to be the case. There are a number of important questions raised in the submissions including the question of whether the claimant has any standing to be heard on either of the two applications. Both parties have made written submissions in relation to that point and Mr Reynolds has supplemented those submissions today I have considerable doubt whether in the circumstances of this case the claimant has the necessary standing but as I told Mr Reynolds during argument, I was prepared to assume that it did have. Accordingly, I will confine my consideration of the case to the material points in issue upon the basis that the claimant has standing to object to the inspection of the document and to apply to set aside the subpoena as an abuse of process, albeit that it is not directed to it. Before I turn to what I regard as the crux of the major case I should refer to the position of Mr Sergeant. He, according to the subpoena, is the District Manager of the Bureau of Air Safety and Investigation. That Bureau has no independent statutory basis. The opponent argues that it is a division of the Federal Department of Transport. The claimant denies this and in its submission states that the Bureau was acting under a delegation of power, presumably pursuant to Reg284A of the Air Navigation Regulations, in producing the draft report. That regulation empowers the secretary of the Department of Transport to delegate to an investigator the power to investigate an aircraft accident. Although the opportunity to investigate this nice question of law has been limited, I tend to think that Mr Reynolds is closer to the mark than Mr Sexton and I will approach the question on the basis that the Bureau was indeed a delegate of the secretary of the Department. The substantive question which arises is whether, according to the principles which dictate the manner in which claims for public interest immunity should be resolved requires that inspection be refused. Both counsel have referred to the statement of Gibbs CJ in Alister v R (1984) 154 CLR at 405 following the decision of the court in Sankey v Whitlam (1978) CLR at 142. It is unnecessary for me to set out in full the relevant passage in the judgment of the Chief Justice Mr Reynolds correctly in my view says that there are three primary issues: 1. Whether it would be injurious to the public interest if the draft investigation documents were to be disclosed (I think Mr Reynolds meant document); 2. Whether these draft investigation documents could produce any material evidence and if so the degree of materiality; and 3. An appropriate determination of the balance between the two factors. WRVIL AVIATION AUTHORITY v AUSTRALIAN BROADCASTING COMMISSION (Clarké JA) In my opinion the important question in this case is the first one. The injury to public interest alleged to be involved in the disclosure of the draft report is dealt with in the affidavit of Mr Williams who is the manager, legal, for the claimant. He lists five reasons why disclosure would be injurious to the public interest. The first three can be dealt with together. They are as follows: "(a) Informants would be less likely to come forward if it were to be known that their identities and the information provided by them could be obtained on subpoena by any party to the litigation; (b) Informants are less likely to be full and frank in their provision of information if their information cannot be provided in the knowledge that it shall remain fully confidential and cannot be agitated in any prospective civil or criminal litigation; (c) The parties directly involved in the investigation and the subject thereof are less likely to co-operate and to be full and frank in their provision of information if the information provided can be obtained by subpoena and used against them in future civil or criminal litigation." In essence, the claims there set out involve the contention that informants or persons are less likely to come forward if this document is disclosed and are in addition less likely, even if they come forward, to co-operate fully and to be full and frank in the provision of information. In a real sense, these paragraphs are argumentative for they do no more than put forward opinions as to the likely general consequences that will flow from the disclosure of the draft report. The following comments should be made about these expressions of opinion. First, they do not suggest that there is anything specific in the report which would be injurious to the public interest to reveal. Rather, they proceed upon the basis that, as a general proposition, draft reports of this nature should be kept confidential for the reason that if their contents are disclosed to the public or more widely published than is intended by the Bureau, the consequences suggested in the three paragraphs are likely to flow. The submissions based upon these expressions of opinion are found on a series of authorities, mainly from the United Kingdom, relating to the public interest in maintaining the secrecy of the names of informers and the contents of information supplied by informers. The general principle on which those cases work, as I understand it, is that if the names of persons who have come forward secretly and confidentially as informers are disclosed informers in the future would be less likely to come forward and a potentially fruitful area of investigation of criminal activity would be denied to the State. However, in the cases there has always been involved confidential material, including the names of informers, which it would be embarrassing to those persons to have made public. In this case it is not said that there are any informers in the sense that I have mentioned. The argument is put on a much wider basis. That is, that persons may decline to come forward as witnesses, or resist questioning, or decline to give information to the investigators of aeroplane crashes, if the contents of documents of this nature are made public and more specifically, if this document is made public. It is obvious that I have not been the beneficiary of submissions from Mr Sexton on the contents of the draft report. He has not had an opportunity to see it but, with the consent of both parties, the document was made available to me and I have read it although I should not suggest that I have understood every nuance of it. 4 UNREPORTED JUDGMENTS There are in it statements made to the investigators by persons in the employ of the Crown and by other persons. None of the people who have made submissions, however, would be within the concept of an informer as I have sought to describe it. They are in every sense persons who are likely to be possible witnesses in the coronial inquest, who have made statements in response to questioning pertaining to matters concerning air safety and the causes or likely causes, both direct and indirect, of the aeroplane crash. I, for my part, find it very difficult to see that the public interest would be served in the manner suggested by maintaining the limited secrecy that the document presently has. I, for instance, find it difficult to accept that the persons who could provide useful information in relation to aeroplane crashes would be less likely in future to come forward or less likely to co-operate if inspection is ordered of this document. There is, in addition another troubling aspect about the claimant's submissions. The document has been prepared as a draft and has endorsed on its cover the words "Draft Report for Interested Party Comment - Not For Public Release". It has been given to "interested parties" for what, I infer, are their comments. The idea behind the limited release being, as I understand the evidence in the case, that a final report would be prepared which may include corrections or additional material resulting from comments made by various parties including the claimant. It seems clear enough that the substance of the report will eventually be made public at the inquest. If, for instance, the draft of the final report were to be in identical terms, there could be no possible public interest as I see it in maintaining the secrecy of the draft. Mr Reynolds' point is that there may be changes and that it is impossible for the court or the parties to say at this stage what identity will remain between the draft and the final document. That, I think, is correct insofar as I am quite unable to speculate on what changes are likely to be made to the draft. However, if the publication of the final report, which will undoubtedly disclose the names of persons interviewed and the contents of interviews, is not against the public interest then I find it difficult to see how it can be suggested that the draft which may contain different material on specific items only could by some means be adverse to that same interest. Why would informants be less likely to come forward if the draft were released for inspection by the opponent at this stage than they would be following the ultimate release of the final report. In the circumstances of this case, and having regard to the contents of the report, the fact that the final report will be made public and most particularly the absence of any specific material in the report the release of which would be adverse to the public interest, I am not prepared to uphold the claim on the first three grounds advanced. The fourth ground reads: "(d) If documents (including drafts) which are brought into being for the purposes of the investigation are susceptible of subpoena, much additional time and effort will have to be spent by the investigating agency in determining what information is to be recorded so as to safeguard the rights of the various informants and possible parties to future litigation." The point made may or may not be good However, the other investigating agency does not itself seek to resist publication or inspection of the document. Upon that ground, I find it difficult to uphold the claimant's application. UWRNIL AVIATION AUTHORITY v AUSTRALIAN BROADCASTING COMMISSION (Clark6 JA) It seems to me that additional time and effort may well have to be spent by investigating agencies because reports are susceptible to subpoena. But I do not think that that fact leads to the consequence that the public interest will be served by keeping the document secret. It may be that in a specific case an investigating agency could show that there were particular circumstances, including the expenditure of time, effort and cost in preparing a document, which demonstrates that in the public interest the document should not be available for inspection, but for my part, I would require much greater particularity of the circumstances surrounding the document and the consequence of publication than appears in this case. All that one has here is the expression of opinion by someone who does not work for the investigating authority that much additional time will have to be spent preparing reports in the future. One might ask "So what?" The final ground reads: "Tt would be destructive of the international comity between the nations which are the signatories to the Chicago Convention if the information referred to in para5.12 of annex 13 to the convention were to be made available pursuant to compulsory court process " The argument presented in support of this ground was eloquent and sophisticated but I am afraid I do not think it carries the day. Without recording all the relevant articles in the Chicago Convention I note that para5S.12 of annexure 13 provides as follows: "That the State conducting the investigation of an accident or incident, wherever it occurred, considers that disclosure of any of the records, described below, might have an adverse effect on the availability of information in that or any future investigation then such records shall not be made available for purposes other than accident or incident investigation:..." There then follows a number of records which would seem to me to encompass much of the material in the draft report. However, pursuant to article 38 of the Convention it is possible for any country which is a signatory to file a difference in respect of any paragraph in an annex adopted by the International Civil Aviation Organisation. Pursuant to this article Australia has filed a difference in relation to para5.12. That difference is that: "Although every effort is made to prevent disclosure of the relevant records for purposes other than accident and incident investigation, it is at present necessary to make the records available to any court which issues a subpoena requiring them to be produced as evidence." Mr Reynolds points out that the difference does not suggest that it is necessary for the documents to be inspected by persons who have sought their production to a court. All that is required anywhere is that the document be made available to any court. It is then for the court to determine whether it should be made available for inspection and it is at this point that the court should have regard to international comity. It may be that in cases with an international complexion, there is some substance in the argument. If, for instance, an airliner operated by an international airline crashed in this country, the court may be required to give careful attention to this need for international comity but I am dealing with a case involving a wholly domestic incident. There is no international aspect of the present case except insofar as the convention does not exclude domestic incidents. 6 UNREPORTED JUDGMENTS In order to demonstrate the need for the prevention of disclosure in this case in accordance with international comity, Mr Reynolds pointed out that persons from other countries may be reluctant to produce documents or to give interviews relating to an airline incident or accident if this court decides that the present draft report should be made available to the opponent. I do not think that submission can be accepted and it is fundamental to my rejection of his submission that I am dealing with a wholly domestic incident. I accept, however, that there may be other considerations when one is dealing with an incident with international implications. For my part I am unable to accept that the making available of the draft report to the opponent would have any possible implications on international comity. For those reasons I am not persuaded that there is any public interest in declining to make the document available to the opponent and there is therefore no need to consider the second and third questions referred to by Gibbs CJ. The claimant also seeks to have the subpoena set aside upon the ground that it is an abuse of process. More particularly that it is in the nature of a fishing expedition. Mr Reynolds points out that it has been conceded by the opponent that the transcripts annexed to the affidavit of Mr Jeffrey Hungerford Pike sworn 15 April 1994 are accurate recordings of the broadcasts the subject of the proceedings to be heard on Thursday. He says that in those circumstances the only issue will be whether that material had a tendency to interfere with the administration of justice. That is accepted by Mr Sexton but he points out, quite correctly, that at this stage the court can only be concerned with the apparent relevance of the material to the issues in the principal proceedings. It is obvious that I am in no position to consider the ultimate issue of relevance. Nor would I intrude upon it in the light of the fact that it will fall for consideration by a Full Bench. The question is whether Mr Reynolds has demonstrated that the opponent has embarked upon a fishing exercise. It is relevant to this question to observe that the opponent is not seeking to make a case against anyone. It is seeking to do no more than defend a charge which has been brought against it and in the course of doing that it has sought material which may be relevant to the issues with which it is concerned. The particular area of relevance pointed out by Mr Sexton is that it should be open to the opponent to argue that potential witnesses, including Mr Sergeant, would not be constrained to keep to their account on the ABC program in circumstances where they had - either before or after the program - committed themselves to formal statements to the Bureau or to the contents of the draft report. Of course the opponent cannot put its argument more specifically than that because it has not had an opportunity to see the draft report. Mr Reynolds for his part submits that there is nothing in the draft report which is in the least relevant, nor is there any basis in the report for the proposition put by Mr Sexton to which I have just referred. I am loath to act on submissions of that nature. I have not heard Mr Sexton's observations on the capacity of the report to support the precise proposition he put or to support or advance his case generally. I do not believe that I am in any position to say that, despite the limited ambit of the issues at the trial, the draft report has no apparent relevance. Putting it more accurately, I am not satisfied that Mr Reynolds has made out that the subpoena is nothing more than a fishing exercise. I can conceive a number of ways in which the draft report may be used by the opponent at the trial WRNIL AVIATION AUTHORITY v AUSTRALIAN BROADCASTING COMMISSION (Clarké JA) although without knowing the substance of its case I do not know whether my views in that regard are entitled in the present situation to any real weight, I simply act upon the basis that I have indicated. That is, I am not satisfied that Mr Reynolds has established that the subpoena is an abuse of process. Two things should finally be said. One is that I have dealt with the second application upon the basis which I earlier indicated and that is that I have assumed that the claimant is not seeking to set aside the subpoena. Secondly there have been tendered before me a copies of newspaper articles which refer, in greater or less detail, to criticisms of the claimant said to appear in the report issued by the Bureau which is said to have become available to various organs of the media. This material has been tendered to demonstrate that there has been publication of detailed matter said to be in the report with the consequence that even if there had been a public interest in maintaining the confidentiality of the report, that was no longer the case. That is an argument of some substance, in my opinion, but in view of the conclusion I have reached on other grounds, I do not find it necessary to deal with it. The claimant's application should be dismissed. The orders will be as follows: The applications brought by the claimant will be dismissed with costs and the draft report is to be made available for inspection on the following terms upon which the parties have agreed: (1) That access to the documents be limited to counsel and solicitors for the parties. (2) The Court notes the undertaking of counsel and solicitors for the Australian Broadcasting Corporation not to divulge the contents of the document otherwise than for the purposes of these contempt proceedings. Upon the opponent undertaking to the Court to return any copy made to the custody of the court upon the conclusion of the contempt proceedings I order that the opponent be entitled to make a copy of the draft report for the purpose of these proceedings. Counsel for the Claimant: G O'L Reynolds Instructed by: Corrs Chambers Westgarth Counsel for the Opponent: M Sexton and C Millard Instructed by: Michael Martin, ABC Legal and Copyright, Ultimo