In the matter of an application by Fitzhenry as agent for Boeing Company [2002] ACTSC 93 (17 September 2002)

Last Updated: 24 September 2002

IN THE MATTER OF AN APPLICATION UNDER ORDER 39 RULE 24H

OF THE SUPREME COURT RULES BY JOAN THERESE FITZHENRY as agent for THE BOEING COMPANY [2002] ACTSC 93 (17 September 2002)

CATCHWORDS

PRACTICE AND PROCEDURE - subpoena to produce documents issued pursuant to letter of request from foreign court - claim by Commonwealth for public interest immunity - records of investigation carried out by another foreign State in accordance with international Convention - requirement of confidentiality - ratification by Australia of Convention - whether documents attract public interest privilege - they do - whether "balancing exercise" excused Commonwealth from producing documents in accordance with subpoena - it did.

Evidence Act 1971

Evidence Act 1995 (Cth)

Air Navigation Act 1920

Alister v The Queen [1983] HCA 45; (1984) 154 CLR 404

Christoforidis v Cygnet Bulk Carriers S A [2002] FCA 690

Cooke v Hawker Pacific Pty Ltd [2000] NSWSC 1258

No. SC 481 of 2002

Judge: Miles CJ

Supreme Court of the ACT

Date: 17 September 2002

IN THE SUPREME COURT OF THE )

) No. SC 481 of 2002

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION UNDER ORDER 39 RULE 24H OF THE SUPREME COURT RULES BY:

JOAN THERESE FITZHENRY as agent

FOR THE BOEING COMPANY

ORDER

Judge: Miles CJ

Date: 17 September 2002

Place: Canberra

THE COURT ORDERS THAT:

1. In respect of subpoenas addressed to the Proper Officer, Australian Transport Safety Bureau dated 8 August 2002 and the subpoena to produce addressed to Mike Walker dated 22 August 2002, each of the persons to whom those subpoenas are addressed, and the Commonwealth of Australia, is excused from compliance with the subpoena for production to this Court of documents being the following records:

(a) all statements taken from persons by the Human Performance Group, or any member of that Group, of the National Transportation Safety Committee, Department of Communications, Republic of Indonesia, in the course of its investigation into an accident or incident involving SilkAir Flight MI 185 near Palembang, Indonesia on 19 December 1997;

(b) all communications between persons having been involved in the operation of the aircraft which crashed;

(c) medical or private information regarding persons involved in the accident or incident;

(d) cockpit voice recordings and transcripts from such recordings;

(e) opinions expressed in the analysis of information, including flight recorder information; and

(f) any draft report or any part thereof or any documents obtained during the investigation.

Except such records or reports or documents which have already been published or released by the Republic of Indonesia.

2. Costs reserved.

1. This is an application made on notice of motion dated 30 August 2002 in which the Commonwealth seeks orders excusing it from compliance with certain subpoenas addressed to the Australian Transport Safety Bureau (ATSB) and officers of the ATSB. Compliance with the subpoenas is sought by The Boeing Company (Boeing).

2. The subpoenas in question require production of documents relating to the investigation of the crash of a civilian aircraft near Palembang, Indonesia, on 19 December 1997 in which officers of the ATSB participated. The aircraft in question, a Boeing 737 - 300 was manufactured by Boeing. It was travelling on SilkAir flight MI 185 from Jakarta to Singapore. SilkAir is a corporation incorporated in the Republic of Singapore. The aircraft was registered in Singapore.

3. All passengers and flight crew on board were killed. Actions for damages have been brought against Boeing in the United States District Court for the Western District of Washington (the U.S. District Court). The plaintiffs allege that the aircraft crashed as a result of negligence on the part of Boeing and other defendants in the manufacture of the aircraft. Boeing denies these allegations and contends that the most likely cause of the crash was intentional action on the part of the pilot, Captain Tsu Way Ming (Captain Tsu).

4. An investigation into the crash was conducted by the National Transport Safety Committee (NTSC), headed by Professor Oetarjo Diran. NTSC is an instrumentality of the Department of Communications of the Republic of Indonesia. Australia and the United States provided assistance. The assistance provided by Australia was by way of participation by officers of ATSB (then known as the Bureau of Air Safety Investigation (BASI)). One of the working groups formed for the purpose of the investigation was called the Human Performance Group (HPG) which amongst other matters looked into the conduct and history of Captain Tsu. The investigation resulted in a Final Report dated 14 December 2000 which contained a conclusion that "the technical investigation has yielded no evidence to explain the cause of the accident".

5. Prior to the Final Report, there had been a draft Final Report which had been made available to the National Transport Safety Board of the United States (NTSB). NTSB criticised the draft Final Report and made certain recommendations that it be corrected and amended to include what NTSB considered to be significant additional information, including information about Captain Tsu's affairs.

6. The proceedings in the US District Court were consolidated and on 22 July 2002 the US District Court issued a letter of request addressed to this Court as a result of which on 8 August 2002 orders were made for the oral examination of Mr Joe Hattley and Mr Peter MacMillan, officers of ATSB, and for subpoenas for production to be issued addressed to the ATSB and Mr Hattley and Mr MacMillan. On 15 August 2002 the US District Court issued a second letter of request to this Court as a result of which orders were made on 22 August 2002 for the oral examination of Mr Mike Walker, another officer of ATSB, and for a subpoena for production of documents to be issued addressed to Mr Walker.

7. Part 12B of the Evidence Act 1971 makes provision for an order by this Court for the taking of evidence in the Australian Capital Territory for foreign and other Australian Courts.

8. Section 85L makes provision for privilege of witnesses and persons who might otherwise be required to produce documents:

"Privilege of witnesses

(1) A person shall not be compelled under an order under section 85K (1) to give any evidence that the person could not be compelled to give in similar proceedings in--

(a) the ACT; or

(b) the place where the requesting court exercises jurisdiction.

(2) Subsection (1)(b) does not apply unless the claim of the person to be exempt from giving evidence is--

(a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or

(b) conceded by the applicant for the order.

(3) If such a claim is not so supported or conceded, the person may, subject to this section, be required to give the evidence to which the claim relates, but that evidence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.

(4) In this section, a reference to giving evidence includes a reference to answering a question or to producing a document."

9. It is clear that s 85L(1) provides a basis upon which an order may be made excusing a person from compliance with a subpoena issued in accordance with an order made under s 85K. For the purposes of the present application, the Commonwealth may successfully resist the requirement to produce documents in accordance with a subpoena if a claim for public interest immunity in respect of those documents is made out.

10. It is common ground that the ATSB is an instrumentality of the Commonwealth and that if the claim for public interest immunity is established, then the persons to whom the subpoenas to produce are addressed may be excused from compliance.

11. Counsel have been of considerable assistance in furnishing the Court with comprehensive argument on principle and reference to the many relevant authorities. It is not necessary to discuss all the arguments or all the authorities.

12. It is established that the Evidence Act 1995 (Cth) does not apply to questions of privilege and immunity relating to production or discovery of documents at an interlocutory stage. However, the principles relating to public interest immunity as incorporated in s 130 of the Evidence Act 1995 appear to be substantially similar to the principles at common law.

13. The circumstances in which a court might decline to order the production of documents on the ground of public interest immunity are exceptional, and involve consideration of competing public interest considerations. The process is sometimes called a "balancing exercise". The balance is between 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 exercise is only to be undertaken when both aspects of the public interest are seen to require consideration. If they do, the Court must then consider the nature of the injury which the public would be likely to suffer and the evidentiary value and importance of the documents in the particular litigation: see Alister v The Queen [1983] HCA 45; (1984) 154 CLR 404 at 412 per Gibbs CJ.

14. It is perhaps not surprising that the courts have jealously safeguarded the administration of justice and have not lightly recognised that other public interest considerations may outweigh those of the administration of justice. However, I think is it going too far to suggest, as was submitted on behalf of Boeing, that the importance of the public interest in the due administration of justice and in ensuring the right of a party to a fair trial "cannot be overstated".

15. Part 2A of the Air Navigation Act 1920 (the Air Navigation Act) relates to the investigation of aircraft accidents in relation to aircraft. Section 19HC prohibits an air safety officer from disclosing or producing an air safety record unless, pursuant to s 19HC(8), -

"...the appropriate court is satisfied that the public interest in the disclosure or production of the air safety record outweighs the adverse domestic and international impact such disclosure or production may have on the investigation to which the record relates or to any future investigations, the court must order such disclosure."

16. Ratification of the Convention on International Civil Aviation (the Chicago Convention) is approved by s 3A of the Air Navigation Act. The provisions of the Chicago Convention are set out in Schedule 1 to the Air Navigation Act. Article 26 provides:

"In the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicating serious technical defect in the aircraft or air navigation facilities, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as it laws permit, with the procedure which may be recommended by the International Civil Aviation Organisation. The State in which the aircraft is registered shall be given the opportunity to appoint observers to be present at the inquiry and the State holding the inquiry shall communicate the report and findings in the matter to that State."

I understand that Indonesia, the United States and Singapore are all signatories to the Chicago Convention.

17. Annex 13 to the Chicago Convention further provides as follows:

"5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:

a) all statements taken from persons by the investigation authorities in the course of their investigation;

b) all communications between persons having been involved in the operation of the aircraft;

c) medical or private information regarding persons involved in the accident or incident;

d) cockpit voice recordings and transcripts from such recordings; and

e) opinions expressed in the analysis of information, including flight recorder information.

5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.

Note. - Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety."

18. It is clear that the State conducting the investigation of the accident or incident in question in the present matter is Indonesia. The State in which the aircraft was registered is Singapore. There is no evidence that the appropriate authority for the administration of justice in Indonesia has determined that the disclosure of the records enumerated in clause 5.12 outweighs the adverse domestic and international impact such action may have on that or any future investigations. It is also clear in my view from the note appearing at the end of par 5.12 that the prohibition on disclosure is aimed particularly at inappropriate use in subsequent judicial proceedings, including civil proceedings in the nature of the claim made in the U.S. District Court against Boeing. It appears therefore that Indonesia is bound, in the absence of a determination in favour of disclosure in that country, not to make available to the U.S. District Court documents in the categories identified in Article 5.12.

19. Annex 13 to the Chicago Convention further provides as follows:

"6.2 States shall not circulate, publish or give access to a draft report or any part thereof, or any documents obtained during an investigation of an accident or incident, without the express consent of the State which conducted the investigation, unless such reports or documents have already been published or released by that latter State."

20. The term "States" first appearing in cl 6.2, in my opinion, applies to all States party to the Chicago Convention, and therefore includes Australia. I am satisfied on the material before the Court and to which my attention has been drawn that there are reports or documents covered by the subpoenas in this case which have not been published or released by Indonesia. If Australia is to abide by its obligations under the International Convention, then the Commonwealth is prohibited from circulating, publishing or giving access to the documents sought to be produced if not so released or published. I find it difficult to conceive of circumstances in which an Australian court would compel the performance of conduct which involves a breach by Australian of its international obligations except in the unlikely event that Australia domestic law compelled the breach. The Chicago Convention however has been ratified by the Air Navigation Act and is part of Australian domestic law.

21. For the foregoing reasons alone I would be inclined to recognise the Commonwealth's claim for public interest immunity. However, as, according to the case law, the balancing exercise must be performed, I set out what is submitted on behalf of Boeing to amount to countervailing factors which in the public interest require production of the documents. They are:

"(i) Properly viewed, a claim of public interest immunity does not extend to the HPG documents. Two related sub-reasons apply. First, these are not documents brought into existence or provided in the process of executive government in Australia which would typically ground a claim for public interest immunity. Second, the relevant provisions of the Air Navigation Act 1920 (by which the Australian Parliament has enacted the Chicago Convention, including Annex 13, into domestic law) do not extend to encompass the HPG Documents acquired or created by ATSB officers in the investigation into the crash of SilkAir Flight MI 185.

(ii) the significant forensic advantage that the HPG documents would be likely to provide to Boeing in the wrongful death claims being made against it in the United States proceedings;

(iii) the fact that the investigation of the crash of SilkAir Flight MI 185 has been completed and the HPG documents are effectively now historical records;

(iv) the prior disclosure or release of some HPG Documents and related information;

(v) the existing Protective Order made by the United States District Court which will restrict access to the HPG documents; and

(vi) production would not inhibit ATSB's investigatory functions in future."

22. I deal with these grounds although not necessarily in the order or in the way in which they have been raised in the written submissions.

23. The first question is whether the documents fall within a class which attracts public interest immunity. In my opinion they do. They relate to international assistance given by an Australian civil aviation safety authority to a similar body in another country and they fall within the scope of documents that are to be dealt with in accordance with the treaty obligations of both countries. The treaty obligations accepted by Australia are recognised in Australian domestic law. The treaty obligations include confidentiality. There is a public interest in the documents being kept confidential, just as there is a public interest element in their being made available to one or more of the parties in litigation in a foreign court in accordance with letters of request issued to this Court by that foreign court.

24. With regard to the remaining grounds, which are concerned with the "balancing exercise" they are to be decided in the light of communications between the Australian and Indonesian civil aviation authorities. Following service of the subpoenas in question, the Australian Government Solicitor on behalf of ATSB wrote to Professor Diran enclosing a copy of the subpoena returnable on 19 August. Professor Diran, writing as Chairman of the NTSC replied, citing relevant clauses of Annex 13 of the Convention and continuing as follows:

"2. Disclosure of CVR and other records or information in civil or criminal proceedings.

- The NTSC understanding is that these records are recordings or transcripts from CVRs and documents or records held by an investigation which contain information about an identifiable person or individual that was supplied to the investigator.

- The NTSC understood that "information" includes a record regardless of form and a copy of a record.

- The NTSC considers that the ability of prosecuting authorities to use CVR information.

- The NTSC also considers that the ability of a Court to use CVR information should be balanced with the safety benefits resulting from record protection, and on the balance of probabilities, that the interests of justice in the disclosure of the record outweigh the adverse domestic and international impact the disclosure may have on the investigation to which the record relates or any future investigations into accidents or incidents.

- Taking into consideration the nature of information as defined in Article 5.12 of Annex 13, the NTSC is of the opinion that the disclosure of the information is inadmissible in civil or criminal court proceedings.

2. Testimony in Court

- The NTSC is of the opinion that NTSC investigators may only testify as to the factual information they obtained during the course of an investigation, including factual evaluations embodied in their actual accident reports. However, they shall decline to testify regarding matters beyond the scope of their investigation, and they shall not give any expert or opinion testimony.

- The NTSC is also of the opinion that an investigator employee may not use the accident report for any purpose during his testimony.

The issue of the NTSC or NTSC Investigators appearing in court is still under study by the NTSC, but we would like to handle the case of investigators called upon to appear in court as expert witnesses, in accordance to general practice until now in Indonesian cases. One example of the many issues that we are studying is whether the law may ask an investigator to appear and testify in court as witness.

I will be very much obliged if you could inform us on the policies, law and regulations, and practices in the Australian environment concerning the issue of disclosure of information. These will be very useful in developing the proper legal framework in the Indonesian context."

25. Although the final two paragraphs quoted above might suggest that there could be a change in the general policy of the Indonesian authority in the future, the earlier paragraphs indicate that at the present time Indonesia is opposed, in the interests of air safety, to the disclosure of documents and information used in the investigation resulting in the Final Report.

26. Reliance was placed on Christoforidis v Cygnet Bulk Carriers S A [2002] FCA 690 in which Tamberlain J at [36] referred to "generalised and speculative material presented by the ATSB" to the effect that if material relating to an official investigation into a collision between ships in waters off Newcastle, New South Wales, were made available under a strict confidentiality regime, there would be significant detrimental effect restricting the availability of information in the future. His Honour was not persuaded that such a consideration would outweigh the powerful public interest in the Federal Court having full and sufficient information and that the Court should not likely be constrained from performing its functions in the light of full access to all relevant material.

27. In my view, the present matter before me differs from Christoforidis in significant respects. The opinion of Mr Stray (a senior officer of ATSB) that disclosure would have an adverse effect on the ability of ATSB to carry out detailed investigation into aircraft accidents in the future may be speculative in the sense that it is guessing at what might happen. Nevertheless it reflects the policy behind Pt 2A Div 9 of the Air Navigation Act, a policy which may not have been relevant in a case involving a shipping collision. Further, Annex 13 to the Convention reflects a similar policy, to be followed by all States, unless the State conducting the investigation has already published the documents or the appropriate authority for the administration of justice in that State determines that they may be made available. It was submitted on behalf of Boeing that the substance of the information in the documents has already been published. It appears to be true that some documents relating to the investigation have been published in the United States and some have been produced to the Supreme Court of New South Wales in response to a subpoena issued by that court pursuant to letters of request from the US District Court. These latter documents include a report by PriceWaterhouse Coopers dated 14 December 2000 which was referred to in some detail in argument before me. However, I am not able to conclude how the previous production (or publication), if it is that, of any of the documents referred to can be said to be "the substance" of the documents that Boeing wants produced to this Court. It is not clear whether the documents have been published by or with the consent of Indonesia.

28. A further factor which it was submitted should weigh against the Commonwealth's claim for public interest immunity is that a so called protective order restricting use and further disclosure has already been made by the U.S. District Court in respect of the documents sought in Australia. The effect of that order is, as I understand it, that the documents, if and when produced, would be confidential to the legal advisers of the parties and of the Commonwealth and to the parties. The protective order does not appear to me to be effective in relation to information. The policy behind the restrictions on publication of documents relating to an official investigation into an air accident or incident imposed by Annex 13 would be defeated if the information in the documents could be disseminated despite the protective order in the U.S. District Court. I do not know whether that court took Annex 13 into account before it made the protection order. Even if the protection order were made by consent of Boeing and the US plaintiffs, that consent could not bind the Commonwealth, or this Court.

29. Mr Kell for Boeing sought to show through the documents that the Final Report was flawed by its failure to meet the criticisms of the draft final report made by the U.S. NTSC. He submitted that justice required Boeing to have access to the material that the HPG made available to the investigation, so that Boeing could know what material the HPG had before it and what conclusions it came to on the question of the behaviour and mental condition of the Captain Tsu before the fatal crash.

30. Reliance was placed on the decision of Hidden J in Cooke v Hawker Pacific Pty Ltd [2000] NSWSC 1258. That was another case in which ATSB claimed public interest immunity to documents being air safety records of an investigation into the crash of an aircraft near Lake George, New South Wales. His Honour said at [19]:

"For the reasons which I have outlined, it appears to me that the documents could be of considerable importance to the plaintiff's case. There could be no question of any prejudice to the investigation of this accident, which has been completed. More importantly, the nature of the documents appears to be such that there is no significant prospect of their disclosure having an adverse impact on existing or future investigations. In any event, I consider any such impact to be outweighed by the public interest in the plaintiff's prosecution of this serious claim."

31. There are several differences between the matter before me and the claim dealt with by Hidden J. As in Christoforidis the claim for privilege was made in the context of an interlocutory application in the court exercising jurisdiction in the principal proceeding in which substantive relief was sought. The administration of justice in the court of trial of the issues between the parties was of direct concern. Here the claim is ancillary to the taking of evidence for principal proceedings in a foreign court. It is not an interlocutory application in proceedings otherwise in the jurisdiction of this Court. There does not appear to be any direct connection between Australia and the principal proceedings. This Court is not sufficiently appraised of the nature of the documents in question in relation to the exact issues that are to be litigated in the U.S. District Court to enable it to make an enlightened decision about their importance to Boeing or to any of the parties in the U.S. litigation.

32. Further in Cook v Hawker Pacific, the Supreme Court of New South Wales was "the appropriate authority for the administration of justice" in the State (in the international sense) conducting the investigation for the purpose of Annex 13 par 5.12. Whatever be the curious nature of the jurisdiction of the Supreme Court of the Australian Capital Territory, it can make no claim to being the appropriate authority for the administration of justice in Indonesia.

33. For the foregoing reasons I am of the view that it has been positively shown that the public interest in the Commonwealth not disclosing the documents in question outweighs the public interest in their production to this Court for the purpose of the proceedings brought against Boeing in the U.S. District Court.

34. In respect of subpoenas addressed to the Proper Officer, Australian Transport Safety Bureau dated 8 August 2002 and the subpoena to produce addressed to Mike Walker dated 22 August 2002, each of the persons to whom those subpoenas are addressed, and the Commonwealth of Australia, is excused from compliance with the subpoena for production to this Court of documents being the following records:

(a) all statements taken from persons by the Human Performance Group, or any member of that Group, of the National Transportation Safety Committee, Department of Communications, Republic of Indonesia, in the course of its investigation into an accident or incident involving SilkAir Flight MI 185 near Palembang, Indonesia on 19 December 1997;

(b) all communications between persons having been involved in the operation of the aircraft which crashed;

(c) medical or private information regarding persons involved in the accident or incident;

(d) cockpit voice recordings and transcripts from such recordings;

(e) opinions expressed in the analysis of information, including flight recorder information; and

(f) any draft report or any part thereof or any documents obtained during the investigation.

Except such records or reports or documents which have already been published or released by the Republic of Indonesia.

Costs reserved.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 17 September 2002

Counsel for the Commonwealth of Australia: Mr D Mossop

Solicitor for the Commonwealth of Australia: Australian Government Solicitor

Counsel for The Boeing Company: Mr D Kell

Solicitor for The Boeing Company: Snedden Hall & Gallop

Date of hearing: 9 September 2002

Date of judgment: 17 September 2002