Incitec Pivot Limited v Queensland Rail Limited

[2023] QDC 264

DISTRICT COURT OF QUEENSLAND

CITATION:

Incitec Pivot Limited v Queensland Rail Limited [2023] QDC 264

PARTIES:

INCITEC PIVOT LIMITED
(Plaintiff)

v

QUEENSLAND RAIL LIMITED

(Defendant)

FILE NO/S:

BD 2953/2021

DIVISION:

Civil

DELIVERED ON:

5 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2023 (on the papers)

JUDGE:

Barlow KC, DCJ

ORDERS:

Application dismissed.

CATCHWORDS:

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS – whether a party should provide disclosure of comments provided to the Australian Transport Safety Bureau in the drafting process of the report – whether submissions made to the ATSB are prohibited from disclosure under the Transport Safety Investigation Act 2003 (Cth) or should be disclosed – whether that information is restricted information - whether the court can override the intent of the legislative prohibition in section 26 by ordering disclosure

Transport Safety Investigation Act 2003 (Cth) s 3, s 26, s 62, s 60

Heli-Aust Pty Limited v Civil Aviation Safety Authority [2019] NSWSC 506, distinguished

COUNSEL:

Mr D de Jersey for the plaintiff

Mr A Collins for the defendant

SOLICITORS:

Mills Oakley for the plaintiff

Barry Nilsson for the defendant

1. In this proceeding, the plaintiff sues the defendant for damages alleged to arise to a train owned and operated by the plaintiff on a railway line operated by the defendant.  The train was derailed and the plaintiff alleges that was essentially caused by the defendant’s negligence. 

2. The derailment was investigated by the Australian Transport Safety Bureau under the Act governing that body’s operations, the Transport Safety Investigation Act 2003 (Cth). Under section 26 of that Act:

   The ATSB may provide a draft report, on a confidential basis, to any person whom the ATSB considers appropriate, for the purposes of:

   (a) allowing the person to make submissions to the ATSB about the draft report, or

   (b) giving the person advance notice of the likely form of the published report.

3. It is accepted by the parties that the defendant was given a copy of a draft report by the ATSB and invited to comment on it, and the defendant made submissions about the draft report which it provided to the ATSB.  The plaintiff now applies for disclosure by the defendant of its submission made to the ATSB about the draft report.

4. Under subsection 26(2), a person who receives a draft report must not, among other things, disclose any of the contents of the report to any other person or to a court.  But, under subsection (4), subsection (2) does not apply to any copying or disclosure that is necessary for the purpose of preparing submissions on the draft report.  Under subsection (5), a person who receives a draft report cannot be required to disclose it to a court and under section 27(3), a draft report is not admissible in evidence in any civil or criminal proceedings.

5. The defendant does not give evidence, in its material about this application, that its submissions in any way disclosed aspects of the draft report.  In the absence of evidence that the submissions made by the defendant to the ATSB about the draft report contained any information that might disclose the contents of the draft report or some of those contents, the plaintiff submits that the submissions are not covered by the prohibitions in section 26 about disclosing the contents of a draft report.

6. In contrast to that position, in a case on which both parties rely in the New South Wales Supreme Court, Heli-Aust Pty Limited v Civil Aviation Safety Authority [2019] NSWSC 506, there was clear evidence that the relevant report or submission, or affidavits and other documents, would disclose or contained many parts that disclosed the contents of the draft report.

7. I keep in mind that the purpose of providing a draft report to a person, relevantly for the purpose of this application, is to allow the person to make submissions to the ATSB about the draft report. In the explanatory memorandum for the Bill, it says that the primary purpose of section 26(1) was to improve the accuracy of the contents of the report by allowing directly involved parties to view and comment on the draft report.

8. It seems to me that submissions about a draft report by someone in the position of the defendant must, by necessary inference, directly concern the contents of the draft report and they therefore must, at least by necessary and reasonable inference, disclose at least some of the contents of the draft report. That being the case, the defendant would breach section 26(2)(b) if it were to disclose the draft report. In this context, “disclose” is defined in the Act in section 3 as:

   (a) in relation to information, includes divulge or communicate the information in any way, and

   (b) in relation to information contained in a document or other article, also includes produce the document or other article, or make it available, for inspection.

9. Submissions about the draft report, in this case, would disclose some, or much, of the contents of the draft report, or those parts of it about which the submissions were made, at the least by inference, therefore divulging information in the draft report. This Court has no power to override the prohibition in section 26 by ordering disclosure within the meaning of that term in the Uniform Civil Procedure Rules.  That is made very clear by subsection (5).

10. The defendant submits, in the alternative, that the report is “restricted information” or contains “personal information” under part 6, division 2 of the Act.  I do not have to decide that but, while it may contain “personal information”, although that is not at all clear on the evidence before me, that could probably be fixed by making appropriate redactions. 

11. I think it unlikely that it would contain “restricted information” as that term is defined in the Act, because section 60, which limits disclosure of restricted information, relevantly relates to disclosure between non-staff members of the ATSB who have had access to restricted information under section 62. Section 62 provides that the ATSB may authorise a non-staff member to have access to restricted information if the ATSB considers that it is necessary or desirable to do so. Those are separate provisions concerning the release of documents containing restricted information that, in my view, do not cover the question of a draft report or comments on the draft report. In any event, even if it were under those provisions, there is no certificate from the ATSB (under subsection 60(5)) which might permit the court to view or other parties to disclose any restricted information.

12. But, in any event, in the circumstances where I have concluded that it is inevitable that the submissions about the draft report would disclose the contents of the draft report, either directly or by necessary inference, I cannot make the order that the plaintiff seeks. Therefore the application will be dismissed.