Jonsandi Transport Pty Ltd v Paccar Australia Pty Ltd
[1999] FCA 877
•22 JUNE 1999
FEDERAL COURT OF AUSTRALIA
Jonsandi Transport Pty Ltd v Paccar Australia Pty Ltd
[1999] FCA 877EVIDENCE – privilege – public interest immunity – investigation by consultant to Federal Office of Road Safety into vibration and stability in heavy vehicles – material provided by truck manufacturers to consultant in confidence – documents of consultant
Evidence Act 1995 (Cth) s 130
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664 applied
Sankey v Whitlam (1978) 142 CLR 1 applied
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 referred to
Home Office v Harman [1983] 1 AC 280 referred to
D v National Society for the Prevention of Cruelty to Children [1978] AC 171 distinguished
Signorotto v Nicholson [1982] VR 413 distinguished
Falconer v Australian Broadcasting Corporation [1992] 1 VR 662 distinguishedJONSANDI TRANSPORT PTY LTD v PACCAR AUSTRALIA PTY LTD
NO. 712 OF 1998HEEREY J
22 JUNE 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 712 OF 1998
BETWEEN:
JONSANDI TRANSPORT PTY LTD (ACN 065 019 070)
ApplicantAND:
PACCAR AUSTRALIA PTY LTD (ACN 004 669 667)
RespondentJUDGE:
HEEREY J
DATE OF ORDER:
22 JUNE 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The claim for public interest immunity is dismissed.
2. Counsel bring in minutes of proposed orders.
3.The applicant pay the subpoenaed parties costs of compliance with the subpoenas other than the costs of today.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 712 OF 1998
BETWEEN:
JONSANDI TRANSPORT PTY LTD (ACN 065 019 070)
ApplicantAND:
PACCAR AUSTRALIA PTY LTD (ACN 004 669 667)
Respondent
JUDGE:
HEEREY J
DATE:
22 JUNE 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant has procured the issue of two subpoenas. One is addressed to the Federal Office of Road Safety (“FORS”) and the other to Roaduser International Pty Ltd (“Roaduser”). The subpoenas were returnable on 29 April 1999. By agreement between the parties the return was adjourned to today for consideration of claims by FORS and Roaduser to resist production of certain documents on the ground of public interest immunity.
The substantive proceeding is brought under Part IVA of the Federal Court of Australia Act 1976 (Cth) by the applicant as representing purchasers of certain models of Kenworth trucks. Various causes of action are alleged but they all turn on a fundamental allegation that these models were defective. In particulars contained in a second amended statement of claim filed on 29 April 1999 the chassis of these models is said to be defective in design and construction in a number of ways.
FORS is a section within the Commonwealth Department of Transport and Regional Services. According to an affidavit sworn by Mr William Ellis, a First Assistant Secretary in the Department responsible for FORS, its functions include: the developing and facilitating of national and other road safety strategies to counter the current road toll; targeting, research and public education programs on key aspects of road safety; supporting the national road transport form process; and progressing international harmonisation of vehicle standards.
Prior to December 1998, some operators of heavy trucks informed FORS of concern about steering instability and vibrations leading to driver fatigue. On 2 December 1998 the Minister for Transport and Regional Services announced that an independent study would be conducted into the vibration and stability of heavy vehicles. The study was described as an “Investigation into the Specification of Heavy Trucks and Consequent Effects on Truck Dynamics and Drivers”. The Commonwealth retained Roaduser as a consultant to conduct the study.
The study was to investigate the complaints so as to establish whether there was a systemic safety deficiency. It was advertised in national and industry press and submissions were taken from operators and other interested parties. The tasks of Roaduser were: to collect and analyse submissions, to inspect and road test vehicles, to computer analyse vibration modes for those vehicle types and prepare a report of the findings of the study, including recommendations for any remedial action.
The initial anticipated timing involved advertising in November-December 1998, inspection commencing in November 1998 and completion by February 1999, a preliminary report by early March 1999 and a final report by the end of March 1999. However, no final report has yet been produced. The original timetable for the final report has been extended to 30 June 1999 but it is unlikely that this extended deadline will be met.
For the purposes of the study the Commonwealth and Roaduser entered into a formal agreement dated 2 December 1998. Clause 10.1 contained covenants by Roaduser not to disclose to any person other than the Commonwealth any “Confidential Information” – defined to include information that “(a) is by its nature confidential, (b) is designated by the Commonwealth as confidential or (c) (Roaduser) knows or ought to know is confidential”. Clause 10.3 authorised the Commonwealth to require Roaduser to give undertakings relating to the non-disclosure of Confidential Information.
Clause 10.5 of the agreement provided:
“The obligations on the Consultant [Roaduser] under this clause 10 will not be taken to have been breached where the information referred to is legally required to be disclosed.”
In his affidavit Mr Ellis deposes that during the investigation some truck manufacturers had expressed concern about confidentiality and that FORS had written to such manufacturers giving them assurances that the information would be treated as commercially confidential and advising that Roaduser would be required to sign deeds of nondisclosure. However, in the correspondence mentioned FORS also told the manufacturers that there were
“certain circumstances (such as court orders) in which it might not be possible to protect the information and thus the Commonwealth was not in a position to guarantee that it could maintain the confidentiality of information provided: although a court could order the provision of the information or subpoena the attendance of persons as witnesses, the Commonwealth would endeavour to protect the information.”
The documents for which the claim is made are those described in par 4 of the schedule to the Roaduser subpoena as follows:
“All reports, memoranda, letters or other documents which record finds [sic], conclusions, opinions or recommendations (tentative or final) concerning tests performed upon Kenworth trucks pursuant to the ‘Heavy Truck Safety Investigation’ presently being conducted by Roaduser International Pty Ltd, and any report or draft report produced in relation to that investigation.”
In identifying the documents falling within that category said to be the subject of the immunity (other documents produced were not, by the time of counsel’s submissions, the subject of claim), the Managing Director of Roaduser, Dr Peter Sweatman, specified documents falling within three categories. First, Roaduser International reports and meeting notes. These documents are various identified committee reports, agendas and letters, inspection notes and notes of meetings and some letters and faxes. Secondly, Kenworth correspondence. These are documents dated between February and May 1999 including notes of a meeting between Roaduser staff and Kenworth, lists of complaints, recommended pre‑test drive inspection procedure, materials supplied by Kenworth to Roaduser, correspondence from Roaduser to Kenworth on investigation visits, pre-test checks and from Kenworth to Roaduser printed materials on the ten most common complaints, namely, hard steering, reduced wheel cut, steering wheel kick, binding/darting/oversteer, directional pull, road wander loose steering, non-recovery, shimmy noise and external leakage, and further exchanges by fax between Kenworth and Roaduser. Thirdly, FORS correspondence. The contents of this file are dated in December 1998 and March, April and May 1999 and comprise file notes of telephone conversations, draft minutes of a project steering committee and faxes between FORS, Roaduser and Kenworth.
I accept the submission of counsel for the applicant that the present application, being an interlocutory one, is governed by the common law rather than s 130 of the Evidence Act 1995 (Cth). The decision of the Full Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664 seems to compel that result. The contrary was not argued. It may be, however, that there is little, if any, difference between the common law and the Act.
The leading authority is the decision of the High Court in Sankey v Whitlam (1978) 142 CLR 1. Gibbs ACJ said (at 38):
“The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [1968] AC 910 at 940 as follows:
‘There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.’
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which required that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however as Lord Reid said in Conway v. Rimmer, ‘the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interests, public or private, can be allowed to prevail over it’. In such cases once the court has decided that ‘to order production of the document in evidence would put the interest of the state in jeopardy’, it must decline to order production.”
The contentions in support of the claimed immunity were as follows. Mr Ellis deposed:
“In my view the production of any documents in answer to paragraph 4 of the Roaduser subpoena would be contrary to the public interest. I hold that view for a number of reasons including the following. After Roaduser completes its investigation, its conclusions and recommendations will be published. At the time of swearing this affidavit no final report has been produced to the Department. It is unlikely, at the time of swearing this affidavit, that the revised deadline of the end of June 1999 for the completion of the final report will be met. If Roaduser is constrained to produce tentative or final conclusions or recommendations before completing its final report that will have a strong tendency to undermine the process of its investigation.”
I must say I have some difficulty in understanding that last sentence. It is not clear whether Mr Ellis is referring to an inhibiting effect on people who might otherwise have co-operated with the investigation. If that is the meaning, and as will be seen that is the ground primarily relied upon by Roaduser, then it is difficult to see how this inhibitory effect could apply even at a stage when final conclusions have been made. It may be, on the other hand, that Mr Ellis has in mind that there might be a diminishing of the impact of the investigation or any final decision made as a result of it.
As to Roaduser’s case, Dr Sweatman says that the great bulk of the material has been furnished to Roaduser on a confidential basis. To carry out its investigation Roaduser needs to rely on the cooperation of a wide range of vehicle manufacturers, component suppliers and vehicle owners. Roaduser has given various undertakings of confidentiality. He deposes:
“If Roaduser broke its promise to those people confidence in the integrity of the investigation process would be impaired.”
This element was referred to several times in the course of argument but it was not suggested that either FORS or Roaduser promised anybody that material would be kept confidential even if a court ordered otherwise. In any case, no such promise could be effective. Therefore, it seems to me that any question of breaking promises is quite beside the point.
Most of the argument centred around the complaint as to confidentiality. In this context it is important to observe that such documents as are released in answer to the subpoena will be released only to the solicitors for the applicant and the respondent. If any further release is sought, for example to expert witnesses, then in the absence of consent that will have to be the subject of a further application to the Court. Moreover, the law itself provides restraint on the use of material obtained on subpoena: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33, Home Office v Harman [1983] 1 AC 280. At the moment we are only dealing with the question of production of documents in answer to subpoena. Even at trial confidentiality can, if a proper case is made out, be protected by the Court making an order as to confidentiality of exhibits.
Given the practical protection to interests of confidentiality in the ways I have mentioned, I am not persuaded that the element of confidentiality weighs very heavily in the balancing exercise I have to undertake. I might add that in the particular circumstances of this case the fear that production of the documents might inhibit co-operation with the investigation is diminished in any event because it would seem that that phase of the study which involves the receipt of complaints and other information from outside persons has already been completed, or at least substantially so.
Before leaving the issue of confidentiality, I note that it was put by counsel in terms of the confidentiality expected by or promised to persons providing information to Roaduser. The case was not put that Roaduser itself in advising FORS, or FORS in turn advising the Government, would not have “complete freedom and candour in stating facts, tendering advice and exchanging views and opinions” (Sankey at 40). Rather an analogy was sought to be drawn with the privilege attached to police informers (D v National Society for the Prevention of Cruelty to Children [1978] AC 171, Signorotto v Nicholson [1982] VR 413, Falconer v Australian Broadcasting Corporation [1992] 1 VR 662). However the public interest in promoting confidential disclosures by police informers and others who might understandably fear “disclosure and terrible retribution” (Signorotto at 420) is a far cry from the subject matter of the FORS investigation.
Turning then to the other elements which have to be considered, it seems to me that there is no question of framing of government policy at a high level, or indeed any policy at all. What the FORS investigation is concerned with is the gathering and analysis of factual information on a subject of undoubted public importance, namely road safety. So far from disclosure putting the interest of the state in jeopardy, information as to why road accidents happen and how they can be avoided seems to be quintessentially something for the public domain. (I am not now speaking of material which has been given to FORS in confidence; while not protected from production to the Court, such material should be treated like evidence received on a confidential basis and its release restricted in the way already discussed.)
Further, the documents in question seem self-evidently very relevant to the issues in the substantive proceeding.
Counsel for the respondent joined in supporting the claim of FORS and Roaduser. He claimed that the subpoenas were too wide because they cover documents going back to 1 January 1988 and documents dealing with all alleged defects, not just those relating to the chassis. This might have been consistent with the statement of claim as originally formulated. However, the second amended statement of claim is confined to loss and damage which was incurred after 9 July 1992, and is confined to design and manufacture of the chassis. But the respondent has not taken out any notice of motion to set aside the subpoenas as an abuse of process. Nor, in my opinion, would such an application be successful.
It does not necessarily follow that documents produced on subpoena would not be admissible at trial even if they, for example, dealt with some incident prior to 9 July 1992. In any event, to the extent that the court and the parties are burdened with an unnecessary volume of irrelevant material, that is a matter of regret, but not something that entitles the respondent to stand in the way of production of these documents.
I reject the claim for public immunity privilege. As discussed with counsel, orders will be made with appropriate provisions to secure confidentiality. I direct that counsel bring in minutes of proposed orders.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate:
Dated: 22 June 1999
Counsel for the Applicant: Mr M D Wyles Solicitor for the Applicant: Slater & Gordon Counsel for the Respondent: Mr J Larkins QC with Mr T J North Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 June 1999 Date of Judgment: 22 June 1999
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