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 prevention of disease (including the merits of methods of disease prevention, diagnosis and treatment);

(iii) health care, medical care, dental care, health research and medical research; and

(iv) ethical issues in relation to health."

In paragraph 6 Dr. Black states that he has "produced all documents which are in the possession and control of the Department and which answer the description of documents" set forth in the aforesaid subpoena.

The documents produced are divided into 2 categories - those contained in box marked 'Exhibit 1' in respect of which the Department has no objection to inspection by the parties to the litigation and those contained box marked 'Exhibit 2' in respect of which paragraph 9 of the Affidavit states:-

"However, objection is taken to the production of those documents contained in the box marked 'Exhibit 2'. These documents are confidential documents the disclosure of which, I believe, would be against the public interest for the reasons hereinafter set forth."

The basis for the claim for non-disclosure on the ground of public interest privilege is contained in paragraphs 23, 24, 26 and 27 of the affidavit.

Before going directly to these paragraphs it is first necessary to refer to earlier paragraphs in the affidavit which establish the confidential nature of the material in respect of which public interest privilege is claimed.

In paragraphs 10 to 12 incl. Dr. Black describes the constitution of the National Health and Medical Research Council and its relevant Committees.

In paragraphs 13 and 14 Dr. Black describes the relationship of the Councils and the Committees to the Department of Community Services and Health, the important matter to note being that the Department has custody in its files of materials submitted to and considered by the Council and its Committees.

In paragraphs 15 to 22 incl. Dr. Black describes in some detail the functions of the National Health and Medical Council and the two aforesaid Committees of which he is chairman.

In relation to pesticides in particular Dr. Black in paragraph 18 describes the arrangement between the Federal Government and State Governments "whereby before any pesticide or any significant change in product formulation or use of a pesticide is registered under relevant state laws is submitted to the Technical Committee on Agricultural Chemicals". (T.C.A.C.).

In paragraph 18 Dr. Black states that T.C.A.C. "will not issue a clearance until such time as it has received recommendations" (from the two aforesaid committees he chairs) "as to poisons schedules, first aid, safety directions and maximum residue levels in feeds".

In paragraph 20 Dr. Black describes the nature of submissions and information supplied by "applicants (including manufacturers and other suppliers of agricultural and veterinary chemicals) and other sources". After describing in general terms the types of information so supplied, paragraph 20 continues:-

"From both my own knowledge and experience I can say that such information is almost always commercially, technically and governmentally sensitive to the suppliers. It is also of such concern and sometimes such sensitivity to Governments that it is almost always treated as confidential all or in part by these Governments."

In paragraph 22 Dr. Black refers to the document officially issued by T.C.A.C. entitled "Requirements for Clearance of Agricultural Chemicals" (May 1985). The preface to that document states:-

"The accompanying document is a significant revision of previous documents setting out the requirements to be met by industry in seeking clearance of agricultural chemicals as a prerequisite to registration by State Registration authorities."

Chapter 3 of the document is entitled "Submissions".

Paragraph 3.1 is headed 'Confidentiality' and states:-

"All information contained in submissions will be considered as commercial-in-confidence data. To preserve the confidentiality of data in submissions, applicants may identify in a preamble that data be regarded as Commercial-in-Confidence. Such a marking would ensure the necessary protection of data.

The use of "privacy markings" more restrictive than "Commercial-in-Confidence" creates significant difficulties in handling and storage of submissions and accompanying documentation by Commonwealth and State Government Departments."

Paragraph 3.3 is headed 'The Submission' and includes the following statements:-

"Submissions should include evidence and/or argument to support all claims for efficacy and safety to users, by-standers, consumers, crops, livestock, wildlife, the natural environment and international trade together with appropriate information for ensuring the safety of those occupationally exposed during formulation, packaging, storage, transport and use. Information should be provided for the safe handling of spillage of end-use product and disposal of unwanted end-use product, prepared spray and empty containers.

Submissions should contain all available evidence including any indication of possible adverse reaction in any of the above parameters."

Dr. Black in para. 22 of his affidavit after referring to the said document next states:-

"The Council, through the Drug and Poisons Schedule Committee, accepts material in confidence and on the express understanding that it will not disclose such information to parties outside the regulatory system. In my opinion, disclosure of such information could be highly detrimental to the economic interests of the applicants. Submissions are treated as confidential and files relating to each submission are classified internally within the Department as confidential. So commercially sensitive is the information that even the knowledge that a company is seeking clearance for a product is treated as confidential."

Having thus established the confidential nature of the material submitted to T.C.A.C. Dr. Black in his affidavit states the bases for the claim to public interest privilege in para. 23, 24, 26 and 27.

The contents of these paragraphs and paragraph 25 which refers to the recently enacted (but not yet commenced) Commonwealth Agricultural and Veterinary Chemicals Act 1988) are set forth in full in the appendix to this judgment. It is sufficient if I here summarise the bases for claim as follows:-

(i) If material "of the type and nature of Exhibit 2 and/or any material forwarded in accordance with the procedure specified in Exhibit 3" (the aforesaid document "Requirements for Clearance)" be released, chemical companies and other applicants would not readily supply such information in the future. This would be "highly detrimental to the work and functions of this Council ........ and may in turn prove detrimental to the continued safe and effective use of agricultural and veterinary chemicals in Australia": para. 23

(ii) In the absence of legislation the present system relies, for its effective operations, on the fact that applicants "may be assured that the material they submit will not be disclosed to competitors and parties outside the regulatory system". para. 24

(iii) The level of trust developed by the Council and its Committees "would be eroded if it became known that information supplied in confidence was subsequently released": para. 26

(iv) The ability of Council and its Committees to "gain access to commercially sensitive information is crucially dependent upon their perceived ability to fulfill undertakings given in respect to confidentiality": para. 26

(v) Disclosure of the material would also disclose "sources of information used by the Committees in the course of their deliberations which could prejudice the future supply of such information from the same or similar sources": para. 27

It is apparent from the foregoing that in this case the claim for public interest privilege is a "class claim". This is apparent from the contents of Dr. Black's affidavit and is confirmed by the affidavit sworn in these proceedings on 6th May, 1988 by Harvey John Baker, the Registrar of Pesticides for the State of NSW, which affidavit was relied upon by the Applicant (without objection from the Crown Solicitor appearing for the Attorney-General who has intervened in the proceedings but did not participate in the hearing of the Notice of Motion) but only for the purpose of demonstrating the importance in the proceedings of disclosure of the material the subject of the subpoena. Mr. Baker's affidavit indicates, inter alia, that the herbicide 2,4-D was marketed prior to the establishment in 1969 of the clearance procedure involving T.C.A.C.

The only other evidence adduced by the Applicant in opposing the Notice of Motion was an extract from a report issued in 1988 by the Minister for Agriculture and Rural Affairs in the State of Victoria as part of a review of legislation dealing with the control of agricultural chemicals.

The Applicant placed particular reliance, in the section of the report dealing with the subject 'Confidentiality of Information', on the following passage:-

"The overriding factor of public interest might make the confidentiality of safety and toxicological data undesirable. Legislation could require disclosure of such data to the public and to the user of chemicals and to employees."

The modern law concerning public interest privilege in Australia has been settled by the decision of the High Court in Sankey v. Whitlam (1978) 142 CLR 1.

A succinct statement of the rule is found in Cross On Evidence (Third Australian Edition) at p.665:-

"The Court will not compel or permit the disclosure of information where to do so would be injurious to state interest."

In Alister v. R (1983) 50 ALR 41 Gibbs C.J. at pp.44 and 45 states the effect of Sankey v. Whitlam as follows:-

"Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - ie, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer,

and the evidentiary value and importance of the documents in the particular litigation. But the anterior question arises - should the court look at the documents to assist it in answering these questions?"

In assessing the present claim for non-disclosure on account of public interest immunity two general principles appear to me to be particularly relevant -

(i) "Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden": Sankey v. Whitlam at p.62 per Stephen J.; and

(ii) "Confidentiality is not a separate head of privilege, but may be a material consideration to bear in mind when privilege is claimed on the ground of public interest: Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No.2) (1974) AC 405: Sankey v. Whitlam at pp. 42/43 per Gibbs A.C.J."

In Alfred Crompton the House of Lords upheld the claim for public interest privilege because it was held to be "not at all fanciful for Sir Louis (The Chairman of the Commissioners) to say that the knowledge that the commissioners cannot keep such information secret may be harmful to the efficient working of the Act" per Lord Cross of Chelsea at p.434.

This led his Lordship to state the following principle (p.434):-

"In a case where the considerations for and against disclosure appear to be fairly evenly balanced the Courts should I think uphold a claim to privilege on the ground of public interest and trust to the head of the department concerned to do whatever he can to mitigate the ill-effects of non-disclosure."

That decision may be contrasted with the decision of the House of Lords given a few days earlier in Norwich Pharmacal v. Customs and Excise Commissioners (1974) AC 133 where a similarly based claim to public interest privilege failed.

Lord Cross in Alfred Crompton at p.343 stated:-

"Nevertheless, the case against disclosure is, to my mind, far stronger than it was in the Norwich Pharmacal case. There it was probable that all the importers whose names were disclosed were wrongdoers and the disclosure of the names of any, if there were any, who were innocent would not be likely to do them any harm at all."

The actual decision in Alfred Crompton may be contrasted with later judicial pronouncements which appear to reflect a more rigorous judicial scrutiny. For example in Campbell v. Tameside Metropolitan Borough Council (1982) 2 AllER 791 Ackner L.J. at pp.796 and 797 stated the following "basic" principle:-

"The fact that information has been communicated by one person to another in confidence is not, of itself, a sufficient ground for protection from disclosure in a court of law of either the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are relevant to an issue on which it is adjudicating: see Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Comrs. (No.2) (1973) 2 AllER 1169 at 1184-1185, (1974) AC 405 at 433-434. The private promise of confidentiality must yield to the general public interest, that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or identity of the informant from disclosure in a court of law: see D. v. National Society for the Prevention of Cruelty to Children (1977) 1 AllER 589 at 594, (1978) AC 1

71 at 218 per Lord Diplock."

More recently in Aboriginal Sacred Sites Protection Authority v. Maurice (1986) 65 ALR 247 Toohey J. as a member of the Federal Court stated at pp.270/271:-

"There is no general principle that documents may be withheld from a court or tribunal because they came into the possession of the person holding them on a confidential basis. If there is a general principle, it is that the administration of justice requires the full disclosure of all relevant evidence for fairly disposing of proceedings. The categories of public interest immunity are not closed; but they are not open without restriction. The replacement of the expression "Crown privilege" with that of "public interest immunity" (a change regretted by Lord Scarman in Nasse) should not disguise the fact that in general terms "the immunity exists to protect from disclosure only information the secrecy of which is essential to the proper workings of the government of the state" (Lord Scarman in Nasse at p.1087)." p.270

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"In Gurry's Breach of Confidence at p.347 the matter is put this way: "In a number of cases the courts have held that the confidentiality of communications will be preserved where an extrinsically established public interest can only be vindicated if those communications have immunity from forensic investigation.""

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"But I am not persuaded that such public interest as exists can only be vindicated if communications with the Authority have a general immunity from forensic investigation.""

With respect to Dr. Black's assertions I am led to the conclusion that he has exaggerated the likely adverse consequences to the workings of the Council and its Committees of disclosure in Court proceedings of information supplied by a chemical manufacturer or supplier in quest for the necessary clearance from the Council. Additionally Dr. Black's predictions, in my opinion, fail to adequately recognise the obligation for full disclosure by persons making submissions for a clearance from T.C.A.C. and the fact that without the necessary clearance from T.C.A.C. the necessary registration under State laws for the use of the chemical herbicide etc will not be forthcoming.

In Alfred Crompton Lord Cross recognised that because of the statutory power of the Commissioners to require information the case was not analogous to withholding the names of informers so as to avoid the 'drying up' of information forthcoming from such sources.

The same kind of reasoning appears in the following passage from the judgment of the NSW Court of Appeal in Barton v. Csidei (1979) 1 NSWLR 524 at p.535:-

"These considerations included, firstly, a submission that officers being interrogated were analogous to informers, and Marks v. Beyfus was cited in support of the rule of law based on public policy protecting law enforcement officers from disclosing the names of persons from whom information has been received and the nature of that information. It was also suggested that answers to questions given under compulsion, and under oath, would be less likely to be truthful, if they were not kept secret. It was further suggested that their disclosure might lead to tampering with evidence that might otherwise be available in ensuing legal proceedings.

In our view, none of these considerations are of weighty import. The analogy with informers is tenuous indeed, and the other suggested impediments to the proper functioning of the Part have no validity."

In the result I do not find the claim for public interest immunity, based upon the asserted adverse consequences to the workings of the Council by virtue of disclosure, to be particularly weighty. In so concluding I have put to one side, for separate consideration, the question of the public interest (which was not explained or amplified) in the Council's gaining access to "commercially sensitive information".

This is a phrase not fully amplified in Dr. Black's affidavit but obviously intended to cover matters of economic and financial significance to the supplier of information. Considerable light of what is meant by the phrase, is, I think reasonably to be obtained by a consideration of the aforesaid recently enacted Commonwealth Act which provides the following definition in s.4(1):-

""confidential commercial information", in relation to a chemical product or a constituent thereof, means:

(a) a trade secret relating to the chemical product or constituent;

(b) any other information relating to the chemical product or constituent that has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

(c) information (other than trade secrets or information to which paragraph (b) applies) concerning the lawful commercial or financial affairs of a person, organisation or undertaking, being affairs:

(i) relating to the manufacture, distribution or sale of the chemical product or constituent; and

(ii) in respect of which the person, organisation or undertaking could be unreasonably affected in an adverse manner by the disclosure of the information."

Section 20 of the Act should also be mentioned. Subsections (1) and (2) are as follows:-

"20.(1) A person shall not, directly or indirectly, except in the performance of his or her duties, or the exercise of his or her powers or functions, under this Act and while the person is, or after the person ceases to be, a member of the staff of the Council or a member of a committee, divulge or communicate to any person any confidential commercial information in respect of a chemical product or a constituent thereof acquired by the person in the performance of his or her duties or in the exercise of his or her powers or functions under this Act. Penalty: $2,000 or imprisonment for 12 months, or both.

(2) Nothing in subsection (1) shall be taken to preclude the disclosure of confidential commercial information in respect of a chemical product to a court in any action or proceeding but the court shall do all things necessary to prevent disclosure of that information to any other person otherwise than for the purpose of the proceedings before the court."

I am of the opinion that if disclosure is to be ordered in the present case it should, at least at this stage, exclude materials falling within the definition "confidential commercial information". If necessary the question can be re-opened at the hearing.

However to return to my principal finding on the strength of the claim to public interest immunity (otherwise than in respect of confidential commercial information) I would only add that the recent enactment of the aforesaid Commonwealth Act strengthens the position to obtain full information of the Australian Agricultural and Veterinary Chemicals Council as successor to the Council and its Committees and correspondingly weakens the basis for claim to public interest privilege in the present case (ie to the extent that there is currently no enabling legislation - see paragraph 24 of Dr. Black's affidavit).

I now turn to consider the competing public interest that "the administration of justice requires the full disclosure of all relevant evidence for fairly disposing of proceedings". In Sankey v. Whitlam Gibbs A.C.J. at p.39 described as the relevant public interest "......... that a court of justice in performing its functions should not be denied access to relevant evidence".

The Applicant in the class 4 proceedings (which are listed to be heard early in the new term) seeks declaratory and injunctive relief in respect of the use by the Respondents of the herbicide 2,4-D, asserting that such use is in breach of sections 111 and 112 of the Environmental Planning and Assessment Act 1979.

Pending the hearing of the substantive proceedings the Applicant has obtained interlocutory injunctive relief from the Court.

The points of defence raised by the Respondents put in issue whether their use of the herbicide 2,4-D is an 'activity' within the meaning of Part V of the Environmental Planning and Assessment Act, whether the Respondents are relevantly 'determining authorities' and whether the aforesaid use is likely to significantly affect the environment. The points of defence also assert that proper environmental consideration has been given to the use of the herbicide 2,4-D by the Registrar of Pesticides and others and that it is for the Registrar and not the Court to determine whether the herbicide 2,4-D is likely to significantly affect the environment.

As I have earlier mentioned the NSW Attorney-General has intervened in the proceedings and has filed the aforesaid affidavit sworn by Mr. Harvey Baker, the Registrar of Pesticides (NSW).

I was informed by Counsel for the parties that a considerable body of expert evidence has been filed relevant to the issue of the environmental consequences of the use of the herbicide 2,4-D.

In these circumstances (and given the limitations inherent in the fact that there are no formal pleadings in class 4 proceedings in this Court and in the fact that I am determining the claim to public interest immunity in advance of the hearing of the class 4 proceedings) it is obvious to me that the material for which privilege has been claimed is relevant to some of the issues raised by the proceedings.

It is true that in the course of argument the Solicitor for the Applicant fairly conceded that without knowing what the material contains it is as possible that it may ultimately assist the Respondents' case as it is possible that it might assist the Applicants' case. Indeed in view of the apparent fact that some form of clearance has been granted in respect of the herbicide 2,4-D it is probable if some speculation be permitted, that the material may be of greater importance to the Respondents' case than to the Applicants' case.

This candid concession was naturally seized upon by Counsel for the Crown as indicating that the Applicant was engaged on nothing more than "a fishing expedition". With respect I do not agree with this submission. If the Applicant is denied the opportunity of access to the relevant documents she is likely to be faced in the proceedings with the bare fact that apparently the use of the herbicide 2,4-D has been cleared by the relevant public authorities but without knowing the scientific or technical basis for such clearance and, more importantly, without having any opportunity to test or question the validity of any relevant scientific or technical appraisal.

Although Alister involved a trial in respect of a serious criminal offence the observations by Gibbs C.J. at p.46 appear to me, with respect, to also be relevant in the present case. Having stated that "There is, however, not the least ground to suppose that any such reports were favourable to the Applicant's case ......." the Chief Justice referred to two recent decisions of the House of Lords in Burmal Oil Co. Ltd. v. Bank of England (1980) AC 1090 and Air Canada v. Secretary of State for Trade (No.2) (1983) 1 AllER 910 noting that in the latter the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery (the majority view) or whether it is enough that they should appear likely to assist any of the parties.

The Chief Justice continues (p.46):-

"Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report would assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done."

In the present case if the Applicant is to be confronted at the hearing with the bare fact (unexplained and untested) that the herbicide 2,4-D has received clearance from the relevant public authority, there is the real possibility of the reproach being raised that justice would not be seen to be done.

I conclude therefore that the refusal of disclosure of the material in the present case involves a serious risk of justice being denied and being seen to be denied. I would only add that these class 4 proceedings are seeking to vindicate the public environmental laws of the State, the object of which include "the protection of the environment" and the provision of "increased opportunity for public involvement and participation in environmental ....... assessment" (see s.5(b) and (c) of the Environmental Planning and Assessment Act).

Finally when I come to the balancing exercise I believe that in the present case (where the claim is a class claim and it has not been suggested that there is anything in the contents that ought to be withheld) and having regard to the relative weights of the competing public interests it is not necessary for me to examine the material cf Sankey v. Whitlam at p.46 per Gibbs A.C.J.

Counsel for the Department invited me not to privately inspect the material.

In undertaking this balancing exercise I am of the opinion that the documents in question may be of considerable importance in the litigation, their absence would result in the risk of the denial of justice to one or the other or both of the parties and that this litigation has some significance for the public as well as for the parties.

I should also mention that I attach some, though not substantial, significance to the fact that the claim in the present case is made by Dr. Black and not the relevant Minister or Departmental Head. I do not overlook the fact that Dr. Black's affidavit clearly states (para. 1) that he "is authorised to make the affidavit on behalf of the Secretary to the Department". It is usual for affidavits in support of a claim to public interest immunity to be sworn by the responsible Minister or Departmental Head although Phipson On Evidence (13th ed.) para. 14-07 notes that objection may also be taken by a subordinate departmental officer.

In the result I have concluded that the balance clearly favours disclosure in the interests of justice, of the material save for that which falls within the category "confidential commercial information" as that expression is defined by the Commonwealth Agricultural and Veterinary Chemicals Act 1988.

Accordingly I dismiss the Notice of Motion with costs and order the Secretary, Department of Community Services and Health to produce to the Court within 7 days all material required by the subpoena except for material falling with the description "confidential commercial information" within the meaning of the Agricultural and Veterinary Chemicals Act 1988 unless within the aforesaid period an appeal is taken against my order.