Tracey Ann Renehan v Commonwealth of Australia

• Jurisdiction: Northern Territory
• Judge: Master Coulehan
• Judgment Date: 19 June 2001
• Neutral Citation: [2001] NTSC 56
• Docket Number: FILE NUMBER 33/98(9803191)
• Court: Supreme Court
• Date: 19 June 2001

[2001] NTSC 56

SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Reasons of

The Master

FILE NUMBER 33/98(9803191)

Between:

Tracey Ann Renehan

Plaintiff

and

Commonwealth of Australia

Second Defendant

REPRESENTATION:

Counsel:

Plaintiff Mr O'Loughlin

Defendant Ms Kelly

Cases Followed

ACCC v Shell161 ALR 686

A-G v Minister for Aboriginal Affairs90 ALR 59

CASES REFERRED TO

Canadian Pacific Tobacco v Stapleton86 CLR 1

Commissioner of Taxation v Nestle Aust.12 FCR 257

CASE DISTINGUISHED

Sanko Steamships v Sumitomo Aust.37 FCR 353

PRACTICE — Northern Territory — 0.29 SCR — discovery — production — Navigation (Marine Casualty) Regulations s. 15 — disclosure of information

PRACTICE — Northern Territory — 0.42 SCR — Subpoena — production of documents not required for evidence

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

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 plaintiffs 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 0.29.02 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 0.29.01(2), but this was conceded.

8 The second defendant's affidavit of documents does not describe the documents as required by 0.29.04, 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...