Fischer and Anor and Australian Fisheries Management Authority - [2005] AATA 293

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 293

ADMINISTRATIVE APPEALS TRIBUNAL )
)V2004/1211

GENERAL ADMINISTRATIVE DIVISION		)
Re		HORST FISCHER & ANOR

Applicant

And

AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Respondent

INTERLOCUTORY DECISION

Tribunal

Justice Downes, President

Date30 March 2005
PlaceMelbourne

Decision

1. The first report of the IARP, referred to in the letter of 18 September, must be produced to the Tribunal and dealt with in accordance with the provisions of the Act and otherwise dealt with in accordance with the provisions of the Act in the usual way.

2. The documents identified in footnote 5 on T-25, page 373, are documents which must be lodged with the Tribunal pursuant to s 37 of the Act.

3. Upon Mr Niall and his solicitor giving undertakings in a form acceptable to the respondent, that they will not disclose to his client or anyone else without further orders of this Tribunal the contents of the documents in the third and fourth categories I have identified in my reasons, the respondent must produce both to the Tribunal and to Mr Niall or his solicitor documents marked up so as to delete material which the respondent considers to be particularly sensitive and of no value to the applicant. If Mr Niall or his solicitor insist on seeing the whole documents they shall be provided with them subject to the same undertaking.

4. If the material produced pursuant to the first direction contains confidential material of the kind that I have covered in the third direction then I direct that it be dealt with as prescribed in that direction.

..............................................
President

REASONS FOR DECISION

Justice Downes, President

Introduction

There are listed before me on 16 May next a number of applications for review of decisions of the Australian Fisheries Management Authority relating to what is commonly known as the shark fishery. One of these matters is Fischer and Australian Fisheries Management Authority. Application has been made before me today by Mr R Niall, on behalf of Mr Fischer.
In accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) the respondent has furnished documents to the Tribunal and made them available to the applicant. That requires the production of documents which are:
“… [i]n the [respondent’s] possession or under the [respondent’s] control and … considered by the [respondent] to be relevant to the review of the decision by the Tribunal.”
The application before me today is for further documents to be produced under subs 37(1) and subs 37(2), which gives the Tribunal powers to require the production of additional documents. As a result of the request for the production of further documents the respondent has produced a number of documents to the applicant with the result that when the matter came before me today there were only a relatively few documents with respect to which agreement had not been reached. The parties put submissions to me about these outstanding documents.
The outstanding documents fall into four broad categories:
(i)The information and documents referred to in footnote five on page 24 of the Report of the Independent Allocation Review Panel (Document T25 with the footnote at page 373).
(ii)A first report prepared by the IARP and referred to in a letter dated 18 September 2003 from the managing director of the respondent to the members of the IARP (Document T23 at page 335).
(iii)Documents recording transfers of shark permits on compassionate grounds.
(iv)Documents relating to the alienation/transfer or other dealing of shark permits by which interests were transferred or alienated before 2001.
I will deal first with the second item, namely, the first report of the IARP. The grounds for objection to production of that document are two-fold. First, it is said that the document is not relevant and, secondly, it is said that its content is already disclosed by material discovered to date.
As to the first ground it seems to me that the fact that the report is referred to in the letter of 18 September really makes it relevant so that it ought to be produced. It is not just that the first report is referred to in passing in that letter, it is a central subject which the letter considers. I also note that the letter states that the respondent:
“...considered the [Report] in detail at our meeting in Perth on 16 September 2003.”
It seems to me that the first report is sufficiently bound up with the report which is included in the s 37 documents so that it is itself a document which is required to be produced under s 37.
The second basis upon which it is said that the document need not be produced is that it is already covered. That does not seem to me to be a reason not to produce a document. The mere fact that there are two copies of a document in a file is not a reason why only one needs to be produced on discovery or under s 37 of the Act. It is really for the person to whom the document is produced to make the decision whether it is superfluous because its contents have already been disclosed. The role of the respondent is confined to determining whether it is relevant, and if it is, to producing it.
Accordingly, I conclude that the first report of the IARP, referred to in the letter of 18 September, should be produced to the Tribunal and dealt with in accordance with the provisions of the Act and otherwise dealt with in accordance with the provisions of the Act in the usual way.
I turn to the first matter, which is footnote five in the ultimate IARP report at page 373 of the s 37 documents. I firstly note that that precise note is referred to in the letter of 18 September of which I have just made mention. The note refers to the Panel having obtained data concerning permit and quota transactions from various brokers. From what I understand of the issues in the proceedings, this is relevant material. I am not sure that the respondent really challenges that assertion. What it does say is that the material is in the possession of a third party who is a member of the respondent's board and that, in those circumstances, it may not have relevant possession or control of the documents.
I do not have any evidence before me which would enable me to determine conclusively whether the material is in the possession or control of the respondent. However, since the documents are in the custody of a board member of the respondent and there is no reason to think that the board member has custody of the documents in any capacity other than his capacity as a board member, it seems to me that the conclusion I can draw is that they are within the possession or control of the respondent.
It is not relevant for me in this application today to consider whether the Board member will hand over the documents if he is required to by the respondent. It is appropriate for me to proceed on the basis that if the documents are in the possession or control of the respondent steps can be taken to procure the production of the documents.
I accordingly conclude that the documents identified in footnote 5 on T-25, page 373, are documents which should be lodged with the Tribunal pursuant to s 37 of the Act and I make a direction accordingly.
That takes me to the third and fourth categories. The third category relates to documents relating to the transfer of shark permits on compassionate grounds. These documents include applications for transfer together with source documents, or letters or memoranda accompanying the applications for transfer. Again I do not think it is argued that these documents are irrelevant. That is because the market for and value of permits on transfer is a critical part of the issues before the Tribunal. What is said, however, is that the documents will disclose confidential material relating to applicants and relatives and associates of applicants, which should be kept confidential where possible.
Once one accepts that the documents are relevant it seems to me to follow that they should be lodged with the Tribunal. The next question is on what basis they can be disclosed to the other party to the proceedings, presently Mr Fischer and his legal advisers. I have no doubt that every effort should be made to keep confidential material which is confidential. However, I think there is a way that this material can be satisfactorily disclosed which will not destroy the confidentiality.
I am often reluctant to make orders or directions that material be made available to legal advisers upon their giving undertakings not to disclose the content of the material to their client or anyone else because it places a great burden upon a legal practitioner whose first duty is to the client. However, in the present case the material to be disclosed is really not material which will create the kind of embarrassment that sometimes occurs if the information is directly relevant to the issue in the case. What is relevant in the present case is the fact of compassionate transfer and some characterisation as to the type of grounds upon which such transfers were made and not anything particular to any person.
What I propose with these documents is that upon Mr Niall giving an undertaking in a form acceptable to the respondent that he will not disclose the contents of the documents to his client or anyone else without further order of this Tribunal, that the respondent produce both to the Tribunal and to Mr Niall documents marked up so as to delete material which the respondent considers to be particularly sensitive and of no value to the applicant.
There may well be other material which is not marked up, or not deleted, which is also confidential and should not be passed on to third parties and it is for that reason that the undertaking that I have suggested must be given, relates to the whole document. I have in mind that what will be handed over is a document containing confidential information, but with respect to which especially confidential information will be marked out.
If Mr Niall requires to see the marked out material I will permit him to require its production, again under the same undertaking, but I am proceeding on the basis that he will approach the matter sensibly and where he is satisfied that he really knows what material of assistance can be taken from the document he will not make such an application. So I make a direction relating to the third category of that kind.
The fourth category, as I understand it, is really in the same situation as category three. That is, it would require the disclosure of confidential material. I see no reason to distinguish this material from the material in the third category. Because it deals with transfers or other dealings with shark permits it does seem to me to be relevant. I accordingly give a similar direction relating to category four to the direction that I gave with respect to category three.
If the material in my first category is produced by the Board member and contains material of the kind that I have covered in dealing with categories 3 and 4 then I direct that it be dealt with in the same way.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President

Signed: ............................................................................
Peter Pikis, Associate

Date of Hearing  30 March 2005
Date of Decision  30 March 2005
Counsel for the Applicant                  Mr R Niall
Solicitor for the Applicant                   Fitzpatrick Teale
Counsel for the Respondent             Ms R Doyle
Solicitor for the Respondent              Dibbs Barker Gosling