Rundle v Tweed Shire Council - [1988] NSWLEC 155

Land and Environment Court

of New South Wales

CITATION: Rundle v Tweed Shire Council & Anor [1988] NSWLEC 155

PARTIES:
APPLICANT
Rundle
RESPONDENT
Tweed Shire Council & Anor

FILE NUMBER(S): 40241 of 1987

CORAM: Bignold J

KEY ISSUES: :-

LEGISLATION CITED: Commonwealth Agricultural and Veterinary Chemicals Act 1988

CASES CITED: Sankey v. Whitlam (1978);
Alister v. R (1983);
Alfred Crompton Amusements Machines Ltd v. Customs and Excise Commissioners (1974);
Norwich Pharmacal v. Customs and Excise Commissioners (1974);
Campbell v. Tameside Metropolitan Borough Council (1987);
Aboriginal Sacred Sites Protection Authority v. Maurice (1986);
Barton v. Csidei (1979)

DATES OF HEARING: 20/12/88

DATE OF JUDGMENT:
12/20/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: This is a Notice of Motion by a stranger to the proceedings to be excused from producing documents the subject of a subpoena duces tecum.

On 4th November, 1988 the Applicant served a subpoena on the Secretary of the Commonwealth Department of Community Services and Health requiring the production to this Court on 15th November, 1988 of the following documents:-

"All documents, reports, articles or other writings in its possession custody or control relating to the environmental and health effects of the herbicide 2,4-D."

By paragraph 2 of his Notice of Motion filed on 15th November, 1988 the Secretary of the aforesaid Commonwealth Department sought to be excused from producing specified documents on the ground of public interest immunity.

The relief sought by the Secretary was supported by an affidavit sworn by Dr. Allan Lindsay Black on 15th November, 1988.

Paragraphs 1 and 2 of Dr. Black's affidavit state:-

"1. I am authorised to make this Affidavit on behalf of the Secretary to the Department of Community Services and Health.

2. I am the Medical Services Adviser (Toxicology) to the Department of Community Services and Health (hereinafter referred to as "the Department") and have held this position since August, 1980. My responsibilities in this position include providing expert consultant advice to the Department and the Minister for Community Services and Health on the toxicology of foods, naturally occurring substances, pesticides and agricultural chemicals and other substances which may cause a toxicological hazard to human health. I also maintain professional liaison with local and overseas organisations concerned with toxicology, and provide advice on toxicological research in Australia."

In paragraph 4 Dr. Black states that he is the Chairman of the Drug and Poisons Schedule Committee and the Pesticides and Agricultural Chemicals Committee, being sub-committies of the National Health and Medical Research Council.

That Council was constituted by Order-in-Council made on 17th September, 1936. In the Order-in-Council published in the Australian Gazette of 20th January, 1988 (which continued the former existence of the Council) cl. 4 specifies the functions of the Council. They include the following:-

"4.(1) The functions of the Council are:

(a) to inquire into, and to advise and make recommendations to the Commonwealth, the States and Territories and the Australian Community on, matters relating to:

(i) the improvement of health (including legislation, administration and practice in that field);

(ii) the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rundle v Tweed Shire Council

Details

AGLC: Rundle v Tweed Shire Council [1988] NSWLEC 155
Case: [1988] NSWLEC 155
Decision Date: 12/20/1988

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Rundle sought to compel the Secretary of the Commonwealth Department of Community Services and Health to produce documents related to the environmental and health effects of the herbicide 2,4-D. The Secretary argued that the documents were protected by public interest immunity, as their disclosure would harm the public interest and hinder the functions of the National Health and Medical Research Council. The case hinged on whether the public interest in maintaining the confidentiality of the documents outweighed the public interest in their disclosure for the administration of justice. The court considered the modern law concerning public interest privilege, established by the High Court in Sankey v. Whitlam, which requires a balancing exercise between the harm caused by disclosure and the harm caused by non-disclosure. The applicant argued that the documents were relevant to the substantive proceedings, where they sought relief for the alleged breach of environmental laws by the respondents' use of the herbicide. The court found that the documents might materially assist the applicant's case, and that their non-disclosure risked denying justice. The court concluded that the balance favoured disclosure, except for documents falling within the category of "confidential commercial information" as defined by the Commonwealth Agricultural and Veterinary Chemicals Act 1988. The court dismissed the notice of motion with costs and ordered the Secretary to produce the required documents, except those classified as "confidential commercial information", unless an appeal was taken against the order.

Orders