Australian Federation of Air Pilots v Hand, G.L. (in his capacity as Minister of State for Immigration, Local Government & Ethnic Affairs)

[1992] FCA 40

NOT FOR D\XI?I6UTION

IN TIIE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	) No VG 221 of 1990
1
GENERAL DIVISION	1

BETWEEN: AUSTRALIAN FEDERATION OF AIR

PILOTS

(Applicant)

AND :	GERARD LESLIE HAND fin his caoacitv as Minister of State for Immiaration. Local Government and Ethnic Affairs
and OTHERS

(Respondents)

Corm	:	Ryan J
Date:
-	10 February 1992

m: Melbourne

MINUTES OR ORDER

THE COURT ORDERS THAT:

1.   The membership records including details of the financial standing of each member and any letters of resignation from membership received by the Federation since 24 August 1989 be produced for inspection by Counsel for the Ansett companies and any nominated two of their instructing solicitors upon each of those persons undertaking in writing to the Court not to use the information contained therein otherwise than for the purpose of these proceedings, and not to disclose the same to any other person without a further order of the

Court.

2.    Reserve liberty to apply in respect of paragraph 1.

1. The costs of and incidental to the Motion on Notice dated 12 March 1991 be costs in the cause.

4.   Paragraph 1 of this Order be stayed until 5.00pm on 11

February 1992.

IN THE FEDERAL COURT OF AUS!CFULLIA	1 1
VICTORIA DISTRICT REGISTRY	1 No VG 221 of 1990
1
GENERAL DIVISION	1
B E T W E E N :	AUSTRALIAN FEDERATION OF AIR PILOTS (Applicant)

AND :  GERARD LESLIE HAND (in his caoacity
as Minister of State for
Immiaration. Local Government and
Ethnic Affairs and OTHERS

(Respondents)

Corm:	Ryan J
Date :	10 February 1992

Place: Melbourne

REASONS FOR JUDC;13ENT ON MOTION ON NOTICE DATED 12 MARCH 1991

RYAN J: By motion on notice dated 12 March 1991 the third fourth and fifth respondents (''the Ansett companies") seek an order that:

"1. Pursuant to Order 15, Rule 8 of the Rules of this Court the Applicant be required to file and serve an affidavit etating whether any of the documents of the nature described in paragraph 9 of the affidavit of Peter John Holloway sworn 12 March 1991 and filed herein are or have been in its possession, custody or power and if they have been, but they are not now in its possession, custody or power, when it parted with them and what has become of them."

Paragraph 9 of Mr Holloway's affidavit, so far as appears relevant is in these terms:

"9. I am instructed that the Applicant should have in its possession, custody or power documents related to the matters raised by it in its Application but which .have not been discovered. I am ~nstructed that documents falling within this category include the following:

(a) documents relating to membership of the Applicant, including (but not limited to) a list of members and letters of resignation received from pilots who were members of the Applicant on 24 August 1989."

By a further affidavit sworn 10 May 1991 M r Holloway referred to a letter from the applicant's solicitors enclosing a supplementary list of documents and advising that the applicant ("the Federation") had a list of the applicant's members which the applicant's solicitors believed not to be relevant to these proceedings. Mr Holloway contested the truth of that belief by deposing:

" 5 .

I refer to paragraph 3 of the Applicant's Points of Contention

of Fact and Law which is to the following effect:

"3. The majority of persons qualified to be domestic

commerc~al airline pilots in Australia are and at all
material times have been members of the Applicant."

"4. The Applicant has and at all material times has had over

1,300 members qualified to be domestic commercial airline

pilots. "

6.   I also refer to paragraph 2 of the affidavit of Terrence Patrick O'Connell sworn 24 April 1991 and f~led in this proceeding. In paragraph 2 of that affidavit Mr O'Connell

deposed to the following:

"The majority of persons qualif~ed to be domestic commercial airline pilots in Australia are and at all

relevant times have been members of the Applicant ..."

7 .    In my opinion the list of members of the Applicant, and other documents relating to membersh~p of the Applicant, are relevant documents which, if they exist, ought to be discovered by the Applicant."

The Ansett companies desire to contend that the applicant lacks standing to maintain these proceedings because, contrary to Mr OrConnell's assertion, it does not represent the majority of persons qualified to be domestic airline pilots. Although not conceding the relevance of its membership records, the Federation resists their production principally by asserting that they "are confidential and privileged from disclosure on the ground of public interest." Alternatively the Federation submits that the Court should not exercise its discretion to order production of the membership records.

In the light of the assertion by the applicant that it has as members over 1,300 persons qualified to be domestic commercial airline pilots, and that those 1,300 constitute a majority of the persons so qualified it can hardly be disputed that membership records tending to establish those facts are relevant to some of the substantive issues in this case. Moreover, in the ordinary course of preparing for trial the respondents should be entitled to investigate the truth of the applicant's assertions by checking its membership records against other available data such as employment records and licence registers and the like maintained by the Civil Aviation Authority and similar bodies. However it has been deposed on behalf of the Federation by OrConnell, its Executive Director in an affidavit sworn 29 May 1991 that the

members and the Federation "and is highly sensitive	information in its membership records is confidential to the
industrially at presentu. By way of substantiating the latter contention reference has been made to proceedings pending in the Industrial Relations Commission in which the airlines are seeking orders pursuant to s.118 of the Industrial Relations
&& 1988 to the effect that the Federation should not have the
right to represent, under the Act, the industrial interests of persons employed as pilots by the airlines. In addition,

reference is made to proceedings instituted by the Federation under s.122 of the same Act seeking the insertion in the relevant awards of a recruitment clause in favour of certain members of the Federation who had been employed by the airlines before 24 August 1988. Mr OfConnell's affidavit continues:

" 7 .	some of the pilots currently employed by the Airlines are
members of the applicant. However I believe that the Airl~nes
do not know how many such pilots there are nor their names. This is sensitrve industrial information. In recent weeks it has come to the attention of members of the applrcant that the Airlines are seeking access to the applicant's membership records. I have recently been contacted by several members of the appl~cant who are presently employed by the Airlines. These pilots have ~nformed me, and I belreve, that they are moat concerned that their employment wrth the Airlines will be compromised if their name appears on any membership l ~ s t of the applicant which reaches the Arrlines. Some p~lots have stated to me, and I belreve, that they will resign their membership of the appl~cant if there is any lrkelihood that the Airlines will become aware of their membership. Some have stated that they wrsh to have therr names taken from the list immediately in order to remove any possrble risk.
8.	I have also been contacted recently by members of the applicant who have applied for employment with the Airlines. They have rnfomed me, and I believe, that rt is their belref that if the Airlines become aware that they are members of the applicant their prospects of obtarnmg employment with the Airlines at present wrll be negligrble. They have also asked that details of their membership not be disclosed to the Airlrnes.
9.	The applicant has assured all of the concerned pilots that it regards rts membership records as confidential vis-a-vis the Airlines and will not reveal them to the Airlines unless compelled to do so."

Societv for the Prevention of Crueltv to Children [l9781 A.C.

I accept that, as Lord Hailsham pointed out in D v National

171 at 230, the categories of public interest are not closed. See also Aboricrinal Sacred Sites Protection Authority v Maurice (1986) 10 F.C.R. 104 at 110, 114 and 127, and Born v Barnes (1987) 10 NSW LR 734 at 737. Nevertheless, I am not persuaded that the categories can be extended to embrace the membership records of an organisation registered under the Industrial Relations Act. That is not to say that such a

registered organization could never engage in activities under some statutory warrant which would attract the protection of public interest immunity to documents or other communications made in the course of those activities. However, the obligation to maintain membership records, although imposed by rules required by the Industrial Relations Act or regulations made thereunder is essentially in the area of private right described by Lord Wilberforce in Science Research Council v

&S& [l9801 A.C. 1028 at 1066.

The conclusion which I have just reached does not entail that the Court has no discretion to restrict the right of the Ansett companies to inspect the membership records which the Federation claims to be confidential. By 0.15 r.11 of the Rules of the Court the power to order production of a document discovered by one party for inspection by another party is discretionary. See e.g. Science Research Council v Nass6 (suora) at 1065. Here the Federation asserts that disclosure of its membership records would involve a breach of confidence

Therefore it is an appropriate exercise of that discretion to	and would be inimical to the interests of its members.
consider whether disclosure can be confined to the extent necessary to dispose fairly of the proceedings without unnecessarily compromising protection which the Federation claims it afforded to its members by the confidentiality of its membership records.

In deciding to exercise the discretion in that way, I have not overlooked the criticisms made by Counsel for the Ansett companies that the assertions of confidentiality in Mr O'Co~ell's affidavit are largely based on hearsay not attributed to any identifiable member of the Federation. However to overcome that criticism the Federation would be obliged in part to disclose details of its members which it wishes to preserve as confidential. It should also be said that I make no finding that any Ansett company has, in fact, any intention of injuring in his or her employment any person discovered to be a member of the Federation, or of discriminating against any such person in the future recruitment of pilots. I am content to proceed to exercise the discretion on the basis that the fears articulated by the Federation are genuinely entertained whether or not they are justified to any extent at all.

Accordingly I consider that if the Court can formulate restrictions on the inspection of the membership records which

might reasonably assuage those fears without unjust detriment	to the Ansett companies' preparation for trial it should do
so. I therefore propose to order that the membership records including details of the financial standing of each member and any letters of resignation from membership received by the Federation since 24 August 1989 be produced for inspection by Counsel for the Ansett companies and any nominated two of their instructing solicitors upon each of those persons undertaking to the Court not to use the information contained
therein otherwise than f o r t he purpose of these proceedings, and not t o d i sc lose the same t o any o ther person without a fur ther order of t h e Court. I s h a l l reserve l i b e r t y t o apply
i n respect of t h i s d i rec t ion and order t h a t t h e cos t s of t he
Federation and t h e Ansett companies of and inc identa l t o the
motion on not ice dated 12 March 1 9 9 1 be cos t s i n t h e cause.

I c e r t i f y t h a t t h i s and the

preceding s i x ( 6 ) pages a re a

t r u e copy of	t h e Reasons
fo r Judgment of	H i s Honor
M r Jus t ice Ryan
s s o c i a t e :	@L&&

Date:  / D ~ ~ T U C U U J /992.

Counsel for the Applicant:  Mr A North QC with
Mr A Cavanough

Solicitor for the Applicant: Mahony & Galvin

(Respondent to the Notice of

Motion)

Counsel for the third,

fourth and fifth Respondents: Mr D OICallagan

Solicitors for the third,

fourth and fifth Respondents: Freehill Hollingdale and Page

Date of Hearing:	22, 23 July 1991
Date of Judgment:	10 February 1992