Renehan v Commonwealth of Australia [2001] NTSC 56

PARTIES				TRACEY ANN RENEHAN 
and 
COMMONWEALTH OF AUSTRALIA
TITLE OF COURT			SUPREME COURT OF THE NORTHERN 
TERRITORY OF AUSTRALIA
JURISDICTION				Interlocutory Application
FILE NUMBER				33/98(9803191)
DELIVERED				19 June 2001
HEARING DATES			26 April, 10 and 17 May, 1 June 2001.
REASONS OF				The Master

CATCHWORDS
PRACTICE – Northern Territory – O.29 SCR – discovery – production – Navigation (Marine Casualty) Regulations s.15 – disclosure of information

PRACTICE – Northern Territory – O.42 SCR – Subpoena – production of documents not required for evidence

STATUTE – Commonwealth – Navigation (Marine Casualty) Regulations s.15 – disclosure of information

CASES FOLLOWED
	ACCC v Shell 161 ALR 686
A-G v Minister for Aboriginal Affairs 90 ALR 59

CASES REFERRED TO
	Canadian Pacific Tobacco v Stapleton 86 CLR 1
	Commissioner of Taxation v Nestle Aust. 12 FCR 257

CASE DISTINGUISHED
	Sanko Steamships v Sumitomo Aust. 37 FCR 353

REPRESENTATION
Counsel:
Plaintiff			Mr O’Loughlin
Defendant		Ms Kelly
Solicitors:
Plaintiff			Cridlands 
	Defendant		Australian Government Solicitor
Judgment category classification
Judgment ID number 			mas0111
Number of pages				7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
33/98(9803191)			Between:
					TRACEY ANN RENEHAN
						Plaintiff
					and
					COMMONWEALTH OF AUSTRALIA
						Second Defendant

MASTER COULEHAN: REASONS FOR DECISION
(Delivered 19 June 2001).

[ 1 ] The plaintiff was injured on 12 June 1996 when she fell while climbing the rigging of a sail-training vessel, “STS Leeuwin”.   It is alleged that the first defendant conducted voyages aboard the vessel and that the plaintiff was sponsored on the voyage by the second defendant, through its agency, the Commonwealth Employment Service which was part of the Department of Employment, Education and Training.   The plaintiff claims that both defendants were negligent and in breach of their duty of care.

[ 2 ] The second defendant has provided an affidavit of documents in which a claim for privilege on the basis of public interest immunity is raised in relation to “various” documents held by the Department of Transport and Regional Development.   These documents are not identified, although it is said that particulars have been provided.   A more detailed list has been provided for the purposes of this application. 

[ 3 ] The plaintiff seeks an order that the second defendant make discovery of and produce for inspection all documents held by the Commonwealth Department of Transport and Regional Services relating to the Departmental Investigation into the plaintiff’s fall.   Such an investigation was carried out by the Australian Transport Safety Bureau, which carries out investigations under the Navigation Act and the Navigation (Marine Casualty) Regulations.

[ 4 ] O.29.02 requires a party to discover all documents that are or have been in its possession relating to a question raised by the pleadings.   The second defendant concedes that these documents are discoverable in the ordinary course, but submits that the documents comprise records of evidence obtained under regulation 10(d) of the Navigation (Marine Casualty) Regulations and argues that regulation 15 prohibits their disclosure.

[ 5 ] Regulation 15(1) provides: 
“(1) Subject to subregulations (7) and (8), the Inspector or an investigator must not divulge information to which this subregulation applies, in whole or in part, except in the performance of duties or in the exercise of powers under these Regulations, to any person other than:
(a)	in the case of evidence obtained under paragraph 10(d) – the person who provided the evidence;  ………….”.
Regulation 15(1A)(a) provides that subregulation (1) applies to a record of evidence made by an Inspector or investigator under paragraph 10(d).

[ 6 ] According to Alan Leslie Stray, the acting Director, Safety Investigations,  Australian Transport Safety Bureau , the Bureau is an agency of the Department of Transport and Regional Services, one of the main responsibilities of which is investigation with the object of improving transport safety.   Mr. Stray deposes that the documents the subject of this application consist of records of evidence of persons taken by an Inspector or an investigator in the course of investigating a marine incident.   As such, they appear to be records of evidence within the meaning of regulation 10(d).   It was not argued to the contrary.

[ 7 ] The question arises as to what, if any, effect this regulation has on the Court’s procedures relating to discovery of documents.   It may be arguable that these documents are not in the possession of the second defendant as defined by O.29.01(2), but this was conceded. 

[ 8 ] The second defendant’s affidavit of documents does not describe the documents as required by O.29.04, and is deficient in this respect.   The documents are better described in Mr. Stray’s affidavits, but the plaintiff is entitled to have them properly described in the second defendant’s affidavit of documents. 

[ 9 ] It has been held that regulation 15 was not intended to effect a court’s powers to compel production of documents in a civil case (see Sanko Steamship v Sumitomo Aust. 37 FCR 353,360).   However, the Regulations have subsequently been amended. 

[ 10 ] Schedule 1 of the Regulations now adopts the international Code for the Investigation of Marine Casualties and Incidents.   The Code expresses the aim of promoting a common approach to the investigation of marine casualties and incidents and the objective of establishing causes and contributing factors, not for the purpose of determining liability or apportioning blame.

[ 11 ] Paragraph 10 of the Code provides:
“10.1 The State conducting the investigation of a casualty or incident, wherever it has occurred, should not make the following records, obtained during the conduct of the investigation, available for purposes other than casualty investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs any possible adverse domestic and international impact on that or any future investigation, and the State providing the information authorises its release:
1 all statements taken from persons by the investigating authorities in the course of the investigation; 
2 ………………………………….
3 ………………………………….
4 opinions expressed during the conduct of the investigation.”

[ 12 ] Amendments to regulation 15 appear to have adopted this provision, at least in part.    Subregulations 15(3) and (4) provide for application to a court for an order for disclosure of information. Regulation 15(5) provides:
“(5) A court may order or authorise the disclosure of information only if:
(a)	the court is satisfied that the public benefit in the disclosure of the    information outweighs any possible effect on the investigation to which the information relates or any future investigation; and
(b)	 the release is authorised by;  
(i)	in the case of a record of evidence given by a person under paragraph 10(d): 
(A)	if the person who provided the evidence is a subject of a foreign State – the foreign State; or
(B)	in any other case – the person who provided the evidence; or …………..”.

[ 13 ] It may be seen that regulation 15(5) differs from paragraph 10 of the Code in that release of the record of evidence requires the authority of the person who provided the evidence rather than that of the State.   The intention appears to be to protect the confidentiality of informants.

[ 14 ] Although an intention to limit a court’s powers is not lightly to be inferred, the clear intention is that the disclosure of information is to be in accordance with the requirements of regulation 15(5).   This necessarily excludes a court’s powers to order disclosure by other means, such as through the discovery process or by use of a subpoena.   The opinion expressed by Sheppard J in Sanko, that the reference to “any person” in regulation 15, did not include a court, is no longer persuasive in this context, and may be distinguished.    

[ 15 ] An Inspector or investigator may divulge information in the performance of duties or in the exercise of powers under the Regulations.   The plaintiff argues that such is the case here, and submits that their duties should be broadly construed, as suggested in Canadian Pacific Tobacco v Stapleton 86 CLR 1 and Commissioner of Taxation v Nestle Aust. 12 FCR 257.   The argument is that the production of documents by way of discovery, or to a court, as evidence, is in the course of duty. 

[ 16 ] The duties of an Inspector or an investigator are set out in the Regulations.   Broadly, they relate to the investigation of an incident and the provision of a report to the Secretary, who may publish it in whole or in part.   If a Board of Marine Inquiry is appointed, an Inspector may provide information to the Board.   These duties appear to be consistent with the general objects of the Regulations expressed in the Code, which do not include the gathering of evidence for use in civil proceedings.   The production of documents to a party in a civil proceeding, or to a court, does not form part of the duties of an Inspector or investigator, nor could it properly be said to be incidental to such duties. 

[ 17 ] It is also argued on behalf of the plaintiff that, having included the documents in an affidavit of documents, the second defendant must produce them unless there is a recognised claim for privilege, such as legal professional privilege. 

[ 18 ] The Rules as to discovery do appear to be based on the assumption that the only grounds for refusal to produce a document is that of privilege.   However, Regulation 15(5) prescribes the only circumstances in which a court may order or authorise the disclosure of the relevant information and the documents cannot be produced without breach of this prescription.   It was not suggested that the Rules take precedence, nor could it be so.   (See A-G v Minister for Aboriginal Affairs 90 ALR 59,75). 

[ 19 ] The plaintiff has issued and served a subpoena requiring the Secretary of the Department of Transport and Regional Services to produce all documents held by the Department relating to the investigation.   O.42.02 provides for a subpoena to be used for the production of a document for evidence.   No documents were produced and there was no call for their production.   The subpoena appears to have been used for the purpose of having the documents produced for inspection, not for their use as evidence.   This is not authorised by O.42.02 and the subpoena should be set aside (see Mamone v Gagliardi (2000) NTSC 95 and ACCC v Shell 161 ALR 686, 696). 

[ 20 ] There is no evidence that anybody has authorised the release of the evidence contained in the documents the subject of this application.   It may be inferred that the plaintiff has authorised the release of the evidence she provided, but regulation 15(1)(a) provides that the information may be divulged to her in any event.  

[ 21 ] In the absence of authorisation, it is unnecessary for me to further consider the requirements of regulation 15(5)(a).   Nor is it necessary, or desirable, that I consider the issue of public interest immunity. 

[ 22 ] Orders 
1.The second defendant file and serve a further affidavit of documents identifying the documents referred to in paragraph 2 of Part 2 of  annexure “A” to the affidavit of Denise Leamey sworn 17 August 2000.
2. The second defendant produce to the plaintiff the notes taken at interviews with the plaintiff on 31 July 1996.
3. The subpoena filed on 25 May 2001, directed to the Secretary of the Department of Transport and Regional Services, be set aside.