Civil Aviation Safety Authority v Whitehall [2018] NSWSC 1345

Supreme Court New South Wales

Medium Neutral Citation: Civil Aviation Safety Authority v Whitehall [2018] NSWSC 1345 Hearing dates: 29 August 2018 Date of orders: 29 August 2018 Decision date: 29 August 2018 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Injunction made Catchwords: EQUITY — Breach of confidence — Conduct constituting breach — Restraining third parties from using confidential information — Interlocutory relief — No issue of principle Category: Procedural and other rulings Parties: Civil Aviation Safety Authority (Plaintiff) Nathaniel John Whitehall (Defendant) Representation: Counsel: I Harvey (Plaintiff) N Whitehall (In person)

Solicitors: HWL Ebsworth (Plaintiff) File Number(s): 2018/245173 Publication restriction: No

EX TEMPORE Judgment (REVISED) 1. These proceedings were commenced on an urgent basis in the Duty List last week. The defendant was present when the proceedings were commenced and directions were made for the defendant to file any evidence in order to prepare for an interlocutory hearing, which was fixed for today. I commenced that hearing at 2 pm. It is now 5 pm. 2. The plaintiff was represented by Mr I Harvey of Counsel. The defendant appeared for himself. However, it must be noted that the defendant told me, and it was apparent from the way he conducted himself, that he had legal qualifications and was able to understand what was happening. Without intending any disrespect to the defendant, I record that he represented himself eloquently and relevantly in relation the issues that were raised. 3. The background to the dispute may be shortly stated. The defendant is a pilot. The plaintiff operates a "notify and report" portal on its website whereby anybody who is concerned about the health or well-being of a pilot is able to report those concerns to the plaintiff. That is what occurred in relation to the defendant. 4. The defendant's neighbour, a Mr Oxborough, made a report to the plaintiff about the defendant's mental health and well-being. I will refer to that report and the related documents which are the subject of the present application as "the documents". 5. The defendant vehemently disagrees with the contents of the documents. He asserts that they were motivated by bad faith and were malicious. Today is not the occasion to debate that issue nor is this the occasion to discuss the rights and wrongs of the reporting scheme operated by the plaintiff. 6. In part relying on the documents, the plaintiff notified the defendant's employer and began an investigation. The end result of what has occurred is that the defendant's aviation medical certificate (which, loosely described, might be thought of as a necessary licence for him to be permitted to perform his duties as a pilot) was not renewed. He has been without employment for more than twelve months. 7. There have been two FOI applications by the defendant. The first was an endeavour to obtain copies of the documents. These were provided to him as a result of the first FOI application in a heavily redacted form. He made a second application for what he describes as other documents. He attached the documents to the second FOI application, as a result of which the plaintiff became aware that the defendant actually had copies of the documents. The second FOI application was refused. 8. For a large part of this year there has been correspondence between the plaintiff and the defendant whereby the plaintiff has tried to recover the documents. In the meantime, the defendant has commenced defamation proceedings in the District Court against Mr Oxborough and, he says, against the plaintiff. The plaintiff says that it has not yet been served with a sealed copy of the District Court proceedings against it. The defendant informed the Court that the documents were attached to the statement of claim in the defamation case that he has filed against Mr Oxborough. The defamation proceedings are presently being case managed in the District Court. 9. Of greater moment, for present purposes, are administrative review proceedings that the defendant has brought in an endeavour to overturn the decision that has been made in relation to his aviation medical certificate. It is through those proceedings that the defendant is endeavouring to, as he would have it, recover his livelihood. These proceedings are fixed for hearing in December of this year. 10. The proceedings before this Court were ultimately precipitated by an article which appeared in The Australian newspaper on Monday 20 August 2018. That article was in evidence before the Court. It refers to the proceedings that the defendant has brought in the District Court. The article in The Australian does not disclose the terms, or describe the specific content of, the documents. 11. Before me the plaintiff began by seeking this order: "Upon the plaintiff the usual undertaking as to damages, the defendant, his servants and agents be restrained forthwith from further using, publishing or dealing with the subject documents listed in Schedule "A" annexed hereto, or otherwise disclosing or permitting to be disclosed, directly or indirectly, any information contained within the subject documents." 1. For reasons to which I will come, it seems to me that an order in those terms is too wide. 2. The causes of action asserted by the plaintiff in these proceedings turn on the principles of detinue and confidentiality. I do not propose to say anything about, and do not rely on, so much of the plaintiff's case as depends upon the law of detinue. 3. I have considered today's application by reference to the law of confidential information. The evidence satisfies me that there is a serious question to be tried as whether the documents were created in circumstances to which an obligation of confidentiality attached. Furthermore, there is a serious question to be tried as to the circumstances in which the documents came into the possession of the defendant. 4. The plaintiff asserts that the defendant duped a representative of the plaintiff into emailing to the defendant a copy of the documents. The defendant vehemently denies that account of events. He says that the documents were provided to him in circumstances which would ultimately found a submission that he has obtained them lawfully and with the consent of the plaintiff. 5. Today is not the occasion to determine who is right or wrong about how the plaintiff obtained the documents. However, it is clear from the evidence that there is a serious dispute on the facts which can only be resolved at a final hearing as to the circumstances in which the defendant came into possession of the documents. 6. It follows that, in my opinion, there is also a serious question to be tried as to whether or not the plaintiff is entitled to return of the documents and for orders restraining their publication or dissemination by the defendant. There is no evidence before the Court that would warrant the conclusion that the documents have otherwise been disseminated at the moment so as to have lost their quality of confidentiality. 7. The plaintiff commenced these proceedings when The Australian article was published, demonstrating the possibility that media attention might mean that the content of the documents themselves would become public. The defendant told the Court, and I accept, that he has had numerous media enquiries about the current dispute but that he has thus far declined to provide further information to the media. 8. I said above that it seems to me that the form of orders originally sought by the plaintiff was too wide. The reason for that becomes apparent when one comes to consider the balance of convenience. 9. The plaintiff submitted that there was a significant public interest in maintaining the integrity of the plaintiff's "notify and report" scheme. In other words, there is an interest (which the Court accepts) that to ensure the effectiveness of the scheme members of the public should have some assurance that their complaints, or at least their identity, would remain confidential in the form they appeared in any report they may provide to the plaintiff about a pilot. For example, I accept that as a matter of ordinary human nature a person may be reluctant to make such a report if they thought it could result in some personal retribution from the pilot concerned if the reporter's identity was not protected. In making that observation I am not saying anything, and not to be taken as saying anything, about the defendant in this case. 10. On the other hand, as the matter presently stands, it seems to me that the defendant had a real interest in, if he can lawfully do so, deploying the documents both to pursue his rights in the proceedings which he had commenced in the District Court and, perhaps even more importantly, for the purpose of the Administrative Appeals Tribunal proceedings. 11. The relevance of the documents to the District Court proceedings is obvious: they contain the imputations about which the defendant complains. The relevance of the documents to the defendant's Administrative Appeals Tribunal proceedings is, at least to me, less obvious. Nevertheless, unless there is a lawful reason to do so, I do not think that the defendant should be deprived from being in a position to attempt to deploy those documents in the Administrative Appeals Tribunal proceedings if he thinks it is in his interests to do so. 12. Bearing those considerations in mind, I came to the view that any injunction that prevented the defendant from "using" or "dealing with" the documents would be both too wide and ambiguous (and therefore unfair to the defendant) and would go beyond a regime of interlocutory orders that would satisfactorily address the interests of the parties which I have identified. 13. At least on an interlocutory basis, I am satisfied that the defendant ought to be prevented from making public the terms of the documents themselves. That recognises the court's acceptance of the plaintiff's submission that there is a serious question to be tried about the confidentiality of those documents but will not prevent the defendant from continuing to prepare his various pieces of litigation in reliance on the documents. 14. The time will come when the defendant will wish deploy the documents publicly in his District Court proceedings and the Administrative Appeals Tribunal proceedings. His tendering of the documents in any of those proceedings will, of course, destroy their confidentiality. As it happens, there is a period of time (at least until December in the case of the Administrative Appeals Tribunal) before the defendant would have any reason to have to tender the documents in evidence. There is no suggestion his District Court proceedings will be heard before then. 15. The orders which I will make are intended, for the moment, to prevent the defendant from tendering the documents in any proceedings or otherwise publicising their contents. The impending Administrative Appeals Tribunal proceedings justify these proceedings being resolved on a final basis as soon as possible, so I will refer these proceedings to the Expedition Judge. In other words, the defendant is entitled to know as soon as possible whether he can lawfully attempt to tender the documents in the Administrative Appeals Tribunal proceedings. 16. Particular arguments were made by the defendant which alleged lateness on the part of the plaintiff in bringing this application. It appears that the defendant first threatened to the plaintiff that he would deploy the documents in defamation proceedings in February. Correspondence continued for some considerable period of time between the parties. In May the plaintiff wrote to the defendant asking him to deliver up the documents and destroy any copies. No response was received. Further correspondence continued to ensue. 17. I accept the plaintiff's submission that there has been no relevant lateness on its part because, at least until the publication of the article in The Australian, the defendant's use of the documents had been within the context of the FOI applications and complaints that the defendant was continuing to make to the plaintiff about the plaintiff's reporting system. 18. In any event, even if there has been some delay on the part of the plaintiff in commencing these proceedings, that is in and of itself not a sufficient reason to decline injunctive relief. It is only one of the discretionary factors that the Court must take into account. I am not satisfied that the defendant has suffered any relevant prejudice by reason of any alleged delay on the part of the plaintiff. 19. For completeness, I record the defendant's submission that he did suffer prejudice because he has already commenced his defamation proceedings in the District Court in reliance on the documents. He says that this whole issue should have been brought to a head by the plaintiff before he had filed his District Court proceedings. In my view, the point at which any relevant or sufficient prejudice would be suffered by the defendant has not yet arisen. That would occur if in the future an assertion by the plaintiff of confidentiality in the documents was the sole reason which prevented the defendant from tendering the documents in evidence at a hearing in the District Court or in the Administrative Appeals Tribunal. 20. The defendant made it clear that he wishes to continue his public advocacy that the plaintiff's reporting scheme was unjust and unfair to pilots. That is his democratic right. The orders which I will shortly make are not intended to prevent him doing so. They are only intended to prevent him making public the terms of the documents. 21. I have also taken into account that the defendant may, in the future, need to show the documents to potential legal advisers or other persons who may be willing to assist him legally or otherwise. The orders will include a mechanism whereby the plaintiff can consent to the defendant using the documents for that or any other proper purpose. If the defendant believes that the plaintiff is unreasonably withholding its consent to him showing the documents to any person, then the defendant will be able to relist proceedings before the Duty Judge to enable that issue to be determined. 22. It is clear that the proceedings are urgent. The orders that I make will also include a requirement that the plaintiff make an application in the Expedition List this Friday for a final hearing of these proceedings. The orders of the court are: 1. Upon the plaintiff by its counsel giving the usual undertaking as to damages and undertaking to bring an application for expedition as soon as practicable before the Expedition Judge, the defendant, his servants and agents are, subject to order 2 and until further order, restrained from: 1. further disseminating, publishing or making public the subject documents listed in "Schedule A" annexed hereto (the "Documents"); 2. adducing or tendering in any pending or proposed judicial or administration proceedings, the Documents or evidence as to the contents of the Documents. 1. Order 1 does not prevent any conduct of the defendant in relation to the Documents to which the plaintiff has consented in advance in writing to the defendant or where the defendant's conduct is under compulsion of law. 2. On or before 4.00pm on 30 August 2018 the plaintiff is to file and serve a Notice of Motion and affidavit in support for expedition of these proceedings. 3. The Notice of Motion referred to in the preceding order is returnable before the Expedition Judge at 9.30am on 31 August 2018. 4. There be liberty to any party to apply on two day's written notice to the Duty Judge. 5. The costs of the plaintiff's application for interlocutory relief be costs in the cause.