Angel Flight Australia v Civil Aviation Safety Authority

1. The Applicants' interlocutory applications in VID 222 of 2019 and VID 574 of 2020, to be released from the implied undertaking, filed on 4 September 2020, be dismissed.
2. The Applicants pay the Respondent's costs of and incidental to those interlocutory applications.
3. The affidavit of Kevin Bartlett dated 26 August 2020 and filed 27 August 2020, and the affidavit of Owen Crees dated and filed 27 August 2020 be uplifted, and the Applicants have leave to file replacement affidavits of Kevin Bartlett and Owen Crees in a form that is consistent with Order 8, by 4pm on Monday, 14 September 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANDERSON J: 1 These reasons for judgment were delivered ex tempore at the hearing on 10 September 2020 and accompany the Orders set out above. 2 The applicants by interlocutory application filed on 4 September 2020 seek to be released from their implied undertaking to the court to rely upon certain documents disclosed by the respondent, the Civil Aviation Safety Authority ('CASA'), to Angel Flight Australia, by way of discovery in proceeding VID222 of 2019. Those emails are the following: (1) first, an email from Dr Jonathan Aleck to Chris Monahan dated 12 April 2018; (2) second, an email from Shane Carmody to Chris Monahan and others dated 24 October 2018; (3) third, an email from Chris Monahan to Robert Walker and others dated 26 October 2018; (4) fourth, an email from Chris Monahan to Roger Crosthwaite and another dated 19 January 2019. 3 I shall refer to those documents as being the 'Documents in Issue'. In support of the application, the applicants rely upon affidavits sworn by Mr Kevin Bartlett on 4 September 2020 in both VID222 of 2019 and VID574 of 2020. The applicant's Counsel, Mr O'Gorman SC, at the hearing of this interlocutory application also relied upon an affidavit sworn by Mr Bartlett on 9 September 2020. 4 The relevant principles are not really in dispute between the parties. There is one matter, however, which should be mentioned. The parties in their written submissions do not refer to rule 20.03 of the Federal Court Rules 2011 (Cth). That rule provides as follows: 20.03 Undertakings or orders applying to documents (1) If a document is read or referred to in open court in a way that discloses its contents, any express order or implied undertaking not to use the document except in relation to a particular proceeding no longer applies. (2) However, a party, or a person to whom the document belongs, may apply to the Court for an order that the order or undertaking continue to apply to the document. 5 I will refer to the implied undertaking referred to in this rule simply as the 'implied undertaking'. 6 At the hearing of this application, I asked Mr Hanks QC, who appeared with Dr Hilly for CASA, whether he relied upon rule 20.03(2) and whether CASA seeks an order that the well-known implied undertaking continue in full for the Documents in Issue. Mr Hanks QC informed me that he relies upon that sub rule. So, as an alternate basis, I will deal with that application as well in what follows. 7 The touchstone for whether a party should be released from the implied undertaking is whether there was a reason for the Documents in Issue to be released from the implied undertaking to achieve justice: see eg Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [31] per Branson, Sundberg and Allsop JJ (as the Chief Justice then was). For that to occur, the applicants need to identify what the available use is of the documents and how they will contribute to justice being achieved in proceeding VID574 of 2020. 8 I am not satisfied on the material before me, nor from the submissions that were robustly put by Mr O'Gorman SC for the applicants, that the Documents in Issue will be likely to contribute to achieving justice in proceeding VID574 of 2020. I am of that view for the following reasons. 9 The applicants' Originating Application in proceeding VID574 of 2020 filed on 27 August 2020 seeks to set aside or quash certain statutory notices dated 13 August 2020 issued to the second applicant and third applicant (the Notices) on the basis that the Notices were issued for an improper purpose or are otherwise beyond power. In proceeding VID574 of 2020 there is no detailed particulars provided as to what is claimed to be the improper purposes for which the Notices are said to have been issued to both the second and third applicants. 10 The Notices indicate that they have been issued reportedly pursuant to regulation 11.075(1) of the Civil Aviation Safety Regulations 1998 (Cth). On their face, the Notices would appear to identify the purpose as giving to CASA specified information and specified documents. I say nothing further of that. Consideration of that question will await, ultimately, determination at trial. 11 Having read the internal emails, which are the documents which I have referred to as the Documents in Issue, it is apparent that their dates range from 12 April 2018 to 19 January 2019. That is, they were created almost two years before the Notices were issued to the second and third applicants in proceeding VID574 of 2020. It is not clear to me why it is said that the Documents in Issue, which predate the Notices by almost 2 years, are relevant to proceeding VID574 of 2020. 12 The Documents in Issue were discovered in proceeding VID222 of 2019. In that proceeding, Angel Flight Australia seeks review of CASA's decision to make "CASA 09/19 - Civil Aviation (Community Service Flights - Conditions on Flight Crew Licences) Instrument 2019" ('Instrument'). (The second and third applicants in VID574 of 2020 are not parties to VID222 of 2019.) I am not satisfied at present that the Documents in Issue are relevant to the matters in issue in proceeding VID574 of 2020. It is not at all clear to me why the issues in proceeding VID222 of 2019 relate to the demands made in the Notices, which are the subject of proceeding VID574 of 2020. 13 Notwithstanding Mr O'Gorman SC's submissions today, I am not satisfied that there is a proper explanation as to how the decision to issue the Notices dated 13 August 2020 (and the information received in relation to those Notices) is relevant to the issues in proceeding VID222 of 2019 and the decision in February 2019 to issue the Instrument, which is the subject of the challenge in proceeding VID222 of 2019. I am not satisfied that the issue in dispute as to the validity of the Instrument in VID222 of 2019 is relevant to the demands which are the subject of the Notices in VID574 of 2020. 14 I do not accept that the breach of the implied undertaking was technical. I do not accept that because it is clear from the affidavits sworn by Mr Bartlett on 26 and 27 August 2020 that he directly acknowledged the source of the documents in dispute, namely that they were provided in discovery in proceeding VID222 of 2019. 15 I also note, without being critical, that the affidavits which annexed the Documents in Issue and the Originating Application they supported were said to be settled by, respectively, an experienced solicitor, Mr Bartlett, and Senior Counsel. The nature of the implied undertaking should have been apparent to those lawyers. 16 I do not accept that the breach can be explained by way of urgency. The matters deposed by Mr Bartlett provide context. But they do not excuse, in my view, the breach. The correspondence discloses that there was no urgency in relation to the matter and that CASA was amenable to granting extensions of time, and indeed did grant an extension of time. 17 I also reject the submissions put on behalf of the applicants that there was a commonality of parties in proceeding VID222 of 2019 and VID574 of 2020. That is plainly not so, as this morning I have made orders by consent dismissing proceeding VID574 of 2020 insofar as it relates to the first applicant, Angel Flight Australia. 18 I am also not satisfied, based on the materials filed, that special circumstances exist which would entitle the applicants to be relieved of their implied undertaking. No such special circumstances have been identified in the material filed nor in the submissions made to date. 19 For these reasons, I will reject the applicant's application for leave to be relieved of the implied undertaking applicable to the Documents in Issue. 20 On the question of costs, CASA sought its costs of the applications on an indemnity basis. I will not make an indemnity costs order. I am not satisfied that there are special circumstances that warrant an imposition of an indemnity costs order. Mr Bartlett has been frank in his affidavit, a mistake has been made but, notwithstanding, there has been a breach of the implied undertaking. Costs will follow the event and be paid on the standard basis. 21 I will make orders dismissing, in both proceeding VID222 of 2019 and proceeding VID574 of 2020, the applications brought by the applicants and dated 4 September 2020. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.