Cooke & Ors v Pacific Hawker Pty Ltd & Ors [2000] NSWSC 1238

New South Wales Supreme Court

CITATION : Cooke & Ors v Pacific Hawker Pty Ltd & Ors [2000] NSWSC 1238 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20196/98 HEARING DATE(S) : 20 October 2000 JUDGMENT DATE : 22 December 2000

Donald Carl Cooke (1st plaintiff) Robert Shannon Cooke (2nd plaintiff) Clark Lee Gibbon (3rd plaintiff) PARTIES : Hawker Pacific Pty Limited (1st defendant) Reliance Aviatiuon Pty Ltd (2nd defendant) Airservices Australia (3rd defendant) Civil Aviation Safety Authority of Australia (4th defendant) JUDGMENT OF : Hidden J at 1

J Glissan QC with M Reoch (plaintiffs) COUNSEL : M Jones (3rd defendant) McIllwaine SC (Australian Transport Safety Bureau) Whittens (1st, 2nd & 3rd plaintiffs) SOLICITORS : Corrs Chambers Westgarth (3rd defendant) Australian Government Solicitor (Australian Transport Safety Bureau) CATCHWORDS : PRACTICE & PROCEDURE: subpoena to Australian Transport Safety Bureau to produce air safety records - public policy - s19HC Air Navigation Act - subpoena to 3rd defendant - documents subject of order for discovery LEGISLATION CITED : Air Navigation Act 1920 Evidence Act 1995 Woollahra Municipal Council v Westpac Banking Corporation (1992) 33 NSWLR 529 Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90 CASES CITED : State of New South Wales v Ryan (Federal Court of Australia, unreported, 2 September, 1998) Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339 ACCC v Shell Co of Australia Limited [1999] FCA 12 DECISION : See pars 20 & 24

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J Friday 22 December 2000 20196 of 1998 Donald Carl Cooke & Ors v Hawker Pacific Pty Limited & Ors Reasons for judgment

1 HIS HONOUR: These proceedings arise out of the crash of an aircraft in an area of New South Wales not far from Lake George on 13 July 1995. The occupants of the aircraft were the three plaintiffs, who survived but suffered severe burns. It is their case that the engine failed when they were flying in an area under the supervision of air traffic controllers at Canberra. The weather was such that visibility was poor, and it is alleged that the aircraft crashed into a hillside as a result of negligent directions by one of those controllers. The third defendant, Airservices Australia, is the body responsible for air traffic controllers. The accident was investigated by the Bureau of Air Safety Investigation, whose functions have now been assumed by the Australian Transport Safety Bureau. 2 On 9 June 1999 Master Harrison ordered the third defendant to provide discovery of certain categories of documents. On 22 March 2000 the plaintiffs' solicitors, being of the view that there had not been proper compliance with that order, issued a subpoena to the third defendant to produce "all investigation reports, including internal reports and memoranda and other similar reports, generated by Airservices Australia as a result of and in connection with" the accident. I have before me a motion by the third defendant that that subpoena be set aside. 3 On 6 June 2000 the plaintiffs' solicitors issued a subpoena to the Australian Transport Safety Bureau to produce "all air safety records held by or in the control of" the Bureau (or its predecessors) relating to the accident. The Bureau has produced some documents in answer to that subpoena but resists the production of others. Also before me is a motion by the plaintiffs effectively seeking access upon certain terms to the material which the Bureau declines to produce. I shall return to the terms of that motion, because to understand them it is necessary to examine some Commonwealth legislation which bears upon the matter. 4 Division 3 of Part 2A of the Air Navigation Act 1920 provides for the investigation of aircraft accidents and other matters bearing upon aviation safety (categorised in the Act as "serious incidents", "incidents" and "safety deficiencies"). Section 19CA provides: 19CA Object of Division The object of this division is, by establishment of a system of investigation for determining the circumstances surrounding any accident, serious incident, incident and safety deficiency, to prevent the occurrence of other accidents, serious incidents, incidents and deficiencies. It is not part of the object of this Division: (a) to provide the means of apportioning blame for the occurrence of an accident, serious incident, incident or safety deficiency; or (b) to provide the means of determining the liability of any person in respect of an accident, serious incident, incident or safety deficiency. 5 Section 19GA creates within the Australian Safety Transport Bureau the office of Director of Air Safety Investigation, and s19CB enables the Director to investigate the circumstances surrounding any aircraft accident. Among the facilities available to the Director for that purpose is the power to require any person to answer any questions or produce any documents relevant to an investigation: s19CC(1). Such a person is not entitled to refuse to answer a question or produce a document on the basis that to do so may tend to incriminate that person or make him or her liable to a penalty, but if objection is taken on that basis any material elicited is not admissible against that person in any criminal proceedings or proceedings for the recovery of a penalty: s19CC (6), (7), (8) and (9). 6 Important for present purposes is s19HC, sub-section (1) of which provides that an air safety officer must not disclose or produce to any person, or to a court, the whole or any part of an air safety record. The expressions "air safety officer" and "air safety record" are defined in s19AG in such a manner as clearly to embrace relevant officers of the Australian Transport Safety Bureau and the records of the Bureau the subject of the plaintiffs' motion. It appears that the third defendant can also rely upon this provision. That is a matter to which I shall return. 7 The prohibition in s19HC(1) is subject to some exceptions which are not presently material. In addition, however, provision is made for an application to a court to compel the disclosure of air safety records: see subs (6) and (7). How a court should deal with such an application is spelt out in subs (8) and (9), which provide: (8) If the appropriate court is satisfied that the public interest in the disclosure or production of the air safety record outweighs the adverse domestic and international impact such disclosure or production may have on the investigation to which the record relates or to any future investigations, the court must order such disclosure. (9) If the appropriate court makes an order under subsection (8), then that court must also make an order that restricts access to the air safety record to: (a) the person or persons constituting the court; and (b) the parties to the proceedings (including any interveners); and (c) the parties' legal representatives; and (d) specified witnesses for the purposes of the proceeding; unless the court is satisfied that such an order would not be in the interests of justice or would not be desirable in the interests of the court performing its functions.

The Australian Transport Safety Bureau 8 In the light of those provisions, the plaintiffs' motion for access to the Bureau's records seeks a declaration that the public interest in their production outweighs the adverse impact which it might have upon the investigation to which they relate, and an order that a limited class of persons involved in the presentation of the plaintiffs' case have access to them. 9 Before me, the Australian Transport Safety Bureau was represented by senior counsel. He explained that, strictly speaking, he appeared for the Commonwealth of Australia as the Bureau is not an independent legal entity. This would have a bearing upon any formal order which I might make, but it is convenient to continue to refer to the Bureau throughout these reasons. 10 The relevant provisions of the Air Navigation Act were enacted in conformity with Australia's obligations as a signatory to the 1944 Convention on Civil Aviation (known as the Chicago Convention). In so far as that Convention deals with the investigation of aircraft accidents, it provides that the focus of such an investigation is the maintenance and improvement of safety standards in aviation. That end can be achieved only by insuring the free flow of reliable information to investigators. 11 The Convention recognises that the provision of reliable information might be inhibited if it were able to be passed on to third parties for the purpose of legal proceedings, civil or criminal, and it provides that a signatory State should not make records of an investigation available for any purpose other than the investigation itself "unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations…": par 5.12 of annex 13 to the Convention. It is this policy which is re-stated in s19CA of the Air Navigation Act and given effect by s19HC. 12 The Bureau relies upon an affidavit of Mr Alan Leslie Stray, Deputy Director, Air Safety Investigation. Mr Stray deposes that disclosure of the relevant material would have an adverse effect on the Bureau's ability to carry out investigations into aircraft accidents in the future, because people may be less likely to provide full and frank information if they know that what they disclose to investigators might be available to third parties. In particular, the Bureau relies heavily upon information obtained from pilots and others involved in the aviation industry and it is the Bureau's policy to engender a spirit of co-operation and trust in those people. In Mr Stray's experience, that spirit is essential to enable the Bureau effectively to discharge "its goal of maintaining and enhancing aviation safety". 13 Mr Stray refers to several investigations in recent years in which, in his view, the supply of information from people in the industry was compromised by the fact that it was passed onto third parties or the fear that it might be. He also emphasises the importance to many investigations of information supplied by air traffic controllers. He concludes by asserting that, if there be disclosure of the material in the present case, persons in a position to provide "critical information" about other accidents might refuse to co-operate with the Bureau. As a consequence, "significant safety factors which led to these accidents may be missed", in which event "the safety of the travelling public could be compromised". 14 Annexed to Mr Stray's affidavit is a list of the documents which the Bureau does not wish to produce. Senior counsel for the Bureau explained that the objection is founded not upon the contents of those particular documents but upon the fact that they fall into the class of air safety records, the disclosure of which is controlled by s19HC of the Act. Senior counsel for the plaintiffs acknowledged as much and accepted the burden of satisfying me that the balance of the competing interests referred to in subs (8) of that section favours their production. 15 The starting point of his argument was that, however reluctant they might be, people are required by law to provide information to those charged with the responsibility of investigating an aircraft accident. Division 3 of Part 2A of the Act confers considerable powers upon investigators, including the power to which I have referred to compel persons to answer questions and produce documents: s19CC. Those called upon to do so would be aware of the obligation cast upon them by that section and of the possibility that, in the circumstances envisaged by section 19HC(8), the information supplied by them might not remain confidential. Senior counsel referred, by way of analogy, to the observations of Giles J in Woollahra Municipal Council v Westpac Banking Corporation (1992) 33 NSWLR 529 at 542ff. Whilst acknowledging that they were made in a different context, his Honour's remarks are apposite. 16 Reliance was also placed upon the decision of Wilcox J in Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90. That was a case involving customs legislation in which, despite a claim of public interest immunity, his Honour allowed inspection by the applicant's lawyers only of documents, the confidentiality of which the Australian government sought to maintain in accordance with its obligations as a member of the General Agreement on Tariffs and Trade (GATT). The proper approach, as his Honour saw it, was "to go behind the mere promises of confidentiality and to examine the interest which they were designed to safeguard". His Honour continued (at 95): "If it is possible to protect that interest whilst simultaneously according to the applicant an opportunity properly to present its case to the Court, this is the appropriate course to follow." 17 I have not inspected the subject documents. Senior counsel for the plaintiffs noted that all of them appear to be of an historical nature, that is, they are concerned only with the investigation, long since completed, of the accident in 1995:cf State of New South Wales v Ryan (Federal Court of Australia, unreported, 2 September, 1998), in which the Full Federal Court upheld a claim of public interest immunity in respect of material in a cabinet document concerned with an issue which was still in the public arena at that time. 18 From the description of the documents in the annexure to Mr Stray's affidavit, it is not immediately apparent that any of them emanates from a person or persons whose continued co-operation with the Bureau in the investigation of aircraft accidents might be compromised by their disclosure. The nature of some of them is not easy to determine (for example, a number of documents described as "Interested Party comments on BASI report /opinions"). The rest of them appear to comprise NSW Police reports concerning the plaintiffs, notes of interviews with the plaintiffs, expert reports, and records of communications between the pilot of the stricken aircraft and the Canberra air traffic controllers. That last category is of particular importance to the plaintiffs, as it would seem to bear directly upon the case they seek to make against the third defendant. They have no contemporaneous records of their own and are reliant upon their recollections. 19 I am sensitive to the Bureau's fear that disclosure of any information supplied to it in the course of an investigation might affect, at the very least, the completeness and candour of information furnished by people in the aviation industry in other investigations. Nevertheless, s19HC(8) recognises that there will be cases in which that concern is outweighed by the public interest in the proper administration of justice. I am satisfied that this is such a case. For the reasons which I have outlined, it appears to me that the documents could be of considerable importance to the plaintiffs' case. There could be no question of any prejudice to the investigation of this accident, which has been completed. More importantly, the nature of the documents appears to be such that there is no significant prospect of their disclosure having an adverse impact on existing or future investigations. In any event, I consider any such impact to be outweighed by the public interest in the plaintiffs' prosecution of this serious claim. 20 Accordingly, the plaintiffs are entitled to the declaration which they seek. It is appropriate that the category of persons permitted to inspect the documents be limited, perhaps to a greater extent than s19HC (9) would require: cf Kanthal Australia (supra). I shall not make any order having immediate effect, as senior counsel for the Bureau indicated that his client may wish to appeal against any ruling adverse to it.

The third defendant 21 Given that ruling, it may be that the plaintiffs do not need to call upon the subpoena directed to the third defendant. Whatever may have been the history of the third defendant's response to Master Harrison's order for discovery, a verified list of documents has now been furnished and public interest privilege is claimed in respect of some of them: s130 of the Evidence Act 1995. The documents as to which that privilege is claimed are set out in an annexure to the affidavit of Ms Mary Elizabeth Gaskill, an officer of the third defendant, of 9 May 2000. (It seems that, strictly speaking, this remains a common law claim of public interest immunity, but nothing turns upon that distinction for present purposes: see Ryan (supra) at pp8-9, Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339 at pars 16-17.) 22 As I have said, the documents inspection of which is resisted may well be classified as air safety records within the meaning of the Air Navigation Act, and the third defendant may fall within the expansive definition of "air safety officer". If that be so, it also is bound by s19HC of the Act. In any event, I received in evidence a Memorandum of Understanding between the third defendant and the Bureau of Air Safety Investigation, the predecessor of the Australian Transport Safety Bureau, by which each undertakes to assist the other in the performance of its duties and the third defendant accepts the requirement of confidentiality expressed in the annex to the Chicago Convention set out above. This memorandum is the source of the third defendant's claim of public interest immunity. 23 It appears to me that both bases for the objection to inspection of the relevant documents raise the same considerations of public policy. I was not addressed by counsel about the nature of the documents in the annexure to Ms Gaskill's affidavit. Subject to that, it appears to me that my approach to the production of the Bureau's documents also applies to the inspection of these documents. However, that is not a matter which I am called upon to determine. 24 The principal argument advanced by the third defendant in support of its motion that the plaintiffs' subpoena be set aside is that it is inappropriate that a subpoena be issued for documents the subject of an order for discovery: ACCC v Shell Co of Australia Limited [1999] FCA 12, per Cooper J at pars 47ff. That argument was not addressed by counsel for the plaintiffs and it appears to me to be sound. The third defendant is entitled to the order which it seeks. 25 I shall consult the parties about the form of orders which should be made at this stage and, if necessary, I shall hear argument on costs. **********

Last Modified: 02/16/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.