Wayne Vasta Michael McKinnon and Civil Aviation Safety Authority

[2009] AATA 398

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 398

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2008/261

GENERAL ADMINISTRATIVE DIVISION		)               2008/2385
Re		Wayne Vasta

Applicant

Re Michael McKinnon

Applicant

And Civil Aviation Safety Authority

Respondent

DECISION

Tribunal The Hon. Brian Tamberlin, QC, Deputy President

Date3 June 2009

PlaceSydney

Decision The Respondent’s application is refused.  The relevant documents are to be released to the Applicants for the purpose of these proceedings only, and are subject to an express direction that the information shall not be used for any other purpose.

............[sgd]..................................
   The Hon. Brian Tamberlin
   Deputy President

CATCHWORDS – Practice and Procedure – Confidentiality Order – Freedom of Information application – not exempt documents – relevant documents to be used for the purposes of the proceedings only – documents to be released to the Applicants subject to an express direction that the information shall not be used for any other purpose – Respondent’s application is refused.

RELEVANT ACT/S:

Administrative Appeals Tribunal Act 1975: ss 35, 37

Freedom of Information Act 1982 : ss 64

CITATIONS:

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10

Re P.J. Beaconsfield Gold NL and ASIC (1998) 54 ALD 109

Harman v Home Office [1983] 1 AC 280

REASONS FOR DECISION

3 June 2009 The Hon. Brian Tamberlin, QC, Deputy President

1.      On 7 April 2009, the Tribunal directed that a number of documents be provided to the Applicants’ solicitor and Counsel and that access to the contents of the documents be restricted to those persons.

2. On 14 April 2009, as foreshadowed, the Civil Aviation Safety Authority (CASA) made an application under s.35(2)(c) of the Administrative Appeals Tribunal Act 1975 (the Act) for a direction prohibiting disclosure to the Applicants in relation to the following documents produced to the Tribunal on 7 January 2009, namely:

·CASA Audit Report of Qantas Airways Ltd (Brisbane Heavy Maintenance) dated 22 November 2007.  (Exhibit “A”).

·CASA Report entitled “Systemic Review of Qantas Airways Ltd – Engineering and Maintenance Control” dated 31 August 2008.  (Exhibit “B”).

3.      I have examined both the Reports the subject of the application and it is apparent that they are relevant to these applications.

4. Under s.35(3) of the Act when considering whether publication or disclosure to some or all of the parties, of a matter contained in a document lodged with the Tribunal, the Tribunal must take as the basis of its consideration the principle that it is desirable that the contents of documents lodged with the Tribunal be made available to the public and all the parties, but that due regard must be paid to any reasons given to the Tribunal as to why publication or disclosure should be prohibited or restricted.

5.      The Respondent has referred to a Practice Direction of the Tribunal dated 26 March 2007 concerning s.37 of the Act to the effect that s.37 does not apply to a document that has been claimed to be an exempt document under the Freedom of Information Act 1982 (the FOI Act).

6.      CASA accepts that it is settled law that there is an implied obligation by each party to legal proceedings not to use any document disclosed in the course of discovery in proceedings for any purpose other than in relation to the litigation which are disclosed:  see Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32. It also accepts that this implied obligation extends to proceedings in the Tribunal in relation to documents produced to the Tribunal including summonses, witness statements and oral evidence.

7. In response to the matter referred to in paragraph 5 above, the Applicants say that the Practice Direction simply restates the effect of s.64 of the FOI Act and does not prescribe any standard of law or practice.  The section provides that if there are proceedings before the Tribunal under the FOI Act in relation to a document claimed to be an exempt document s.37 of the Act does not apply.  The Applicants point out that, subject to conditions, disclosure under the FOI Act has no limitations as to further disclosure and that the limited access sought by the present Applicants is not analogous.  In my view this submission has cogency.  The Applicants also refer to the general obligation of non-disclosure for other purposes of the material referred to the decision in Re P.J. Beaconsfield Gold NL and ASIC (1998) 54 ALD 109 at [15] to [16] where Deputy President McDonald decided that the implied obligation not to use documents for a collateral purpose as stated in Harman v Home Office [1983] 1 AC 280, was applicable in the Tribunal.

8.      One primary concern of CASA in this matter is the apprehension that, notwithstanding implied confidentiality restrictions, there is a risk that one of the Applicants could inadvertently disclose the contents of one or more of the Reports to a third party and that if this occurred it would be extremely difficult if not impossible to prove breach.  CASA also says that it is open to a Court to release the Applicants from the implied undertaking and that there can be no assurance that the documents will not be made public.  However, before removing the implied restriction the Court would no doubt consider the competing interests as to whether to make such a release.

9.      CASA also submits that the Applicants are misusing the Tribunal procedure in this case to obtain access to documents that would otherwise be “exempt” documents, but does not elaborate on this general assertion.

10. The Applicants oppose the restrictions sought by the Respondent under s.35(2) because the evidence and submissions of the Respondent are insufficient to justify departure from the general principle that there should be access to the materials by the public and all the parties. The Applicants also submit that the substance of the Reports has already to a large extent been made public as a consequence of media releases and press statements by CASA and Qantas. These are set out in the Affidavit of Mr McKinnon of 14 November 2008. The Applicants further say they will suffer real prejudice in presenting their case due to the technical nature of much of the documentation if the restrictions sought by CASA’s application are applied. It will not be possible for the legal advisers to understand the documentation, and obtain proper informed instructions say without consulting the Applicants.

11.     The Respondents rely on the evidence of Mr Barry Laws, a senior CASA Air Worthiness Team Leader, tendered by CASA

12.     Mr Laws in his Affidavit refers to possible harm to Qantas if the documents in question are published to the general public but the Applicants point out that the implied restriction on misuse or disclosure for purposes other than those of the present proceeding, in the Tribunal, is sufficient to protect Qantas.

13.     Mr Laws also refers to possible adverse impacts on CASA through disclosure of its audit methods in relation to “air operators” but the applicants point out that neither applicant in this case is an air operator, and I am not persuaded that disclosure to the Applicants will result in disclosure to any air operators.

14.     The Applicants also refer to the fact that there have been a number of Tribunal decisions in which CASA led evidence as to its audit reports and methods and the applicants submit that these involve a breakdown in the claim for confidentiality of the documents.  I am satisfied that this is a relevant consideration. They also refer to provision by CASA of details concerning its Systemic Review Report and say that provision of such information to the applicants cannot inform air operators of CASA’s methods because it has already been published.

15.     The Applicants emphasise the technicality of language in the Reports used and they rely on this fact to support the need for explanation before it can be understood by legal representatives.  I have perused both Reports and it is apparent that the documents require expert explanation before they can be fully understood by a lay person.

16.     CASA has expressed concern that there may be a conflict of interest if the documents are shown to Mr Vasta because he is an Assistant Federal Secretary of the relevant Union which is in dispute with Qantas.  Mr Vasta is a licensed aircraft maintenance engineer who the Applicants say, because of his qualifications and experience, will be able to assist them to understand the documents and their relevance in the proceedings and in particular to safety considerations.  Without the benefit of his experience the Applicants’ Counsel and solicitors will be unable to understand and evaluate the importance of the documents and obtain proper instructions.

17.     Counsel for the Applicants also points out that there is no basis provided for giving weight to the submission that either of the Applicants or any of their advisers might inadvertently or otherwise cause any of the material to be disclosed in view of the legal constraints on disclosure by them.  I am not satisfied that there is any reasonable basis established for this apprehension.

18.     It was submitted by CASA that since Mr McKinnon does not claim any engineering expertise there should be no disclosure to him.  However, this is not a practical course because he will need to give informed instructions and I do not accept that such a restriction is appropriate.  I consider however that it is appropriate that the Applicants and their technical advisers should be subject to an express direction that the information shall not be used for any purpose other than for this proceeding.  Failure to comply with such a direction can constitute an Offence under the Act.  This is an additional cogent sanction against inadvertent or wrongful disclosure.  I therefore make this direction.

19. Having considered the adverse effects claimed by the Respondent and weighing them against the need for disclosure to the Applicants and having regard to the legal requirements of confidentiality and the sanctions against misuse of the documents, I am not persuaded that the Respondent has made out a sufficient case to warrant the direction sought under s.35(2)(c) of the Act prohibiting or restricting disclosure to the Applicants in the circumstances of this case.

20.     The Respondent’s application is therefore refused.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President.

Signed: .........................[sgd]...................................................
  Associate

Date/s of Hearing:  4 May 2009    
Date of Decision:  3 June 2009
Counsel for the Applicant:  Mr T Brennan             
Solicitor for the Applicant:  Ms R Eagles, Sparke Helmore       
Solicitor for the Respondent  Mr A Anastasi, CASA