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[2025] NSWCA 222
respondent. Time for filing and service of the summons seeking leave to appeal was extended to 26 June 2025 under r 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW); the summons was otherwise...
The Court of Appeal accepted that AIAC’s appeal application was late and extended the filing time, but refused permission to appeal. It reasoned that the data cards were physical objects, while the recorded data was information. AIAC had obtained the data from equipment it owned or leased, not from the ATSB under the ATSB’s authorisation power. The TSIA provisions relied on by AIAC were not read as stopping a person from using information they already had a right to access. The leave application did not identify a sufficiently significant legal issue or clear injustice. AIAC was ordered to pay Mr Zheng’s costs of the application.
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2,594 words · generated 06/10/2026
Australian International Aviation College Pty Ltd (AIAC) operated an aircraft pilot training college at Port Macquarie. Shenglong Zheng was a student there. On 8 September 2017, he was seriously injured when an aircraft on a training flight crashed into trees shortly after take-off ([5]). In the later personal injury proceedings, AIAC admitted that its employee, the flight instructor, controlled the aircraft and admitted the crash, while not admitting all details of the flight or the aircraft’s behaviour before the crash ([6]).
4 cited instruments linked from this judgment.
AIAC prepared an “Accident Report and Operational Recommencement Plan” dated 24 September 2017. The primary judge found that its principal purpose was to enable flying operations to resume, including obtaining CASA approval or acquiescence, rather than to reach a final conclusion about the cause of the crash. That finding was not challenged in the Court of Appeal ([8]). The report used information downloaded from two aircraft systems: a Garmin G1000 integrated avionics system, which recorded flight and engine parameters, and an electronic engine control unit, which recorded engine and propeller data ([8]).
The ATSB investigated the crash. It sought information available from the two data cards, but the evidence did not clearly establish when it took possession of the cards, or whether they were later returned. What was clear was that the ATSB could not itself download data from the cards. AIAC or the engine manufacturer did so, and AIAC provided the data to the ATSB. AIAC then used the information in preparing its report ([17]). The ATSB published its final report on 30 June 2020, by which time the primary judge found the investigation had been completed ([18]).
Mr Zheng commenced personal injury proceedings in the District Court in 2021. He obtained the AIAC Report through a subpoena to CASA. His aviation expert, Bruce Simpson, relied on the AIAC Report in preparing the Simpson Report, which addressed liability ([7]–[8]). The evidentiary question reached the Supreme Court through an advance ruling under s 192A of the Evidence Act 1995 (NSW). On 12 February 2025, Garling J ruled that the AIAC Report and Simpson Report were not inadmissible by reason of the Transport Safety Investigation Act 2003 (Cth) (TSIA) ([3], [19]).
AIAC sought leave to appeal, but filed its summons late because of its solicitor’s error. The respondent did not oppose extending time, and no prejudice from the delay was suggested ([4]). The Court of Appeal extended time to 26 June 2025. It nevertheless dismissed the summons otherwise and ordered AIAC to pay the respondent’s costs of the leave application ([30]).
The applicant’s proposed argument depended on a chain of propositions: the cards or their downloaded data were “restricted information”; AIAC had obtained access under s 62 of the TSIA; s 60(3) therefore prohibited disclosure; and s 60(8)(b) made the disclosed information inadmissible in civil proceedings ([22]). The Court rejected the critical factual and interpretive steps in that chain.
First, the Court distinguished the cards from the information recorded on them. The cards were physical equipment, not information. The TSIA itself distinguishes physical things, described in relevant provisions as “evidential material”, from information. The Court also noted that evidential material may have to be returned to its owner when it is no longer required for an investigation ([24]). The distinction matters because the applicant’s argument treated possession of the cards as though it were equivalent to access to restricted information under the statutory scheme.
Second, s 62 was not read as a general permission required whenever someone accesses information that relates to an ATSB investigation. The Court considered the provision’s context and concluded that it concerns restricted information in the ATSB’s possession. A person who already has information, or has an independent right to it, does not need ATSB authorisation merely to access it. The example given was private or medical information supplied to the ATSB by someone who is already entitled to access that information ([25]).
On the facts, AIAC did not obtain the data from the ATSB. It downloaded or arranged for the download from the cards, then supplied the data to the ATSB. The Court also accepted that the data was information AIAC was entitled to use because it had been collected by equipment AIAC owned or leased ([26]). Accordingly, the Court did not treat AIAC’s later use and disclosure as the prohibited use of information supplied to it by the ATSB.
Third, the Court interpreted the provisions by reference to their apparent purpose. The ATSB gathers information from different sources for transport safety investigations, and some of it may be confidential. Sections 60–62 protect information gathered by the ATSB by controlling its disclosure, restricting disclosure by people given access for the investigation, and preventing court processes from being used to obtain information wrongfully ([27]). But, on the Court’s reading, their purpose is not to stop someone who is otherwise entitled to information from using or obtaining it.
The Court also considered the practical consequence of AIAC’s interpretation. Data from aircraft electronic systems may be important in working out why an accident occurred and, consequently, questions of liability. The applicant’s construction would generally make that data unavailable for those purposes merely because it had been provided to the ATSB. The Court considered that result inconsistent with the statutory scheme, particularly because the ATSB’s functions do not include determining liability or apportioning blame ([10], [28]).
Finally, the leave test was not met. The Court stated that leave generally requires an issue of principle, a question of public importance or reasonably clear injustice going beyond something merely arguable ([21]). Given its conclusions on the statutory interpretation and the source of the information, the Court found that the application disclosed none of those grounds ([29]).
The judgment describes the statutory framework against which the dispute arose. The ATSB’s function is to improve transport safety, not to apportion blame, determine liability, assist in ordinary inter-party court proceedings, or permit adverse inferences simply because someone was involved in a transport safety matter: s 12AA(3), quoted at [10]. The TSIA provides investigative powers, including requirements to answer questions or produce evidential material, and powers to obtain material with consent or under warrant ([11]). An ATSB report is generally inadmissible in civil or criminal proceedings, subject to the stated coronial inquiry exception ([12]).
The central provisions here were ss 60–62. Section 60 restricts making records of and disclosing restricted information, including disclosure to a court. It provides limited exceptions, including a civil-proceedings mechanism involving an ATSB certificate and a court order ([13]). Section 62 permits the ATSB to authorise a non-staff member to access restricted information. “Restricted information” is defined in s 3 and includes specified information connected with investigations, such as information recorded in the course of an investigation, certain communications, vehicle-operation information, and information in documents produced under specified statutory powers ([14]).
The decision’s interpretive contribution, as expressed in this judgment, is to distinguish information held by the ATSB or supplied by it under the investigation scheme from information a person independently holds or has a right to access. The Court states that ss 60(3) and 62 do not imply a prohibition on access to or use of information to which a person is otherwise entitled ([26]–[27]). It also distinguishes physical evidential material from information recorded on that material ([24]).
The judgment does not say that information recorded by aircraft equipment can never be restricted information. Rather, its reasoning turns on how AIAC obtained the information, its entitlement to access it, and the statutory context. Nor does the decision establish that every report compiled using such data is admissible for every purpose. The issue before the Court was whether the proposed appeal showed error in the advance ruling that these reports were not inadmissible by reason of the TSIA. The disposition was a refusal of leave, not a final trial determination of the underlying negligence claim.
The decision did not amend the statutory text or purport to displace the restrictions in ss 60–62. It explains how the Court read those provisions in the circumstances presented. The judgment also records the separate statutory process for disclosure of restricted information in civil proceedings, requiring an ATSB certificate and a court order in the circumstances specified in s 60(4)–(6) ([13]). Its conclusion was that AIAC’s account of its access to this particular data did not bring the case within the prohibition it relied on.
At [24], the Court says: “The cards themselves are not information.” In plain English, a physical device that stores or may store data is not the same thing as the recorded data. That distinction was important because the TSIA treats physical items and information differently.
At [25], the Court explains that s 62 concerns restricted information in the ATSB’s possession. In plain English, ATSB authorisation is not a universal permission needed to look at any information connected with an investigation. The Court gave the example of someone who supplied private or medical information to the ATSB but was already entitled to access that information.
At [26], the Court states that ss 60(3) and 62 should not be interpreted as imposing an implied prohibition on access to and use of information a person is otherwise entitled to. It then applies that reading to AIAC: the data was obtained from equipment AIAC owned or leased, rather than supplied to AIAC by the ATSB. This was central to rejecting the applicant’s proposed basis for excluding the reports.
At [27], the Court explains the purpose of ss 60–62 as controlling disclosures from the ATSB’s investigative process and preventing improper access to or use of information. In plain English, the provisions protect information gathered by the ATSB; the Court did not read them as stripping a person of an independent right to information merely because the ATSB also received it.
At [28], the Court observes that the applicant’s interpretation would generally make aircraft electronic data unavailable for determining accident causes and liability once supplied to the ATSB. The Court considered that an unlikely statutory purpose, particularly because the ATSB is not assigned the function of deciding liability. This supports the Court’s contextual reading, rather than operating as a separate finding about admissibility in all cases.
At [29], the Court applies the leave threshold: no qualifying issue of principle, public importance or reasonably clear injustice had been identified. In practical terms, the Court was not deciding the underlying negligence dispute; it was deciding that the proposed appeal did not justify appellate leave.
The reasoning is most directly engaged where a party argues that information is inadmissible under ss 60–62 of the TSIA because it relates to an ATSB investigation. Relevant factual questions, drawn from this judgment, include whether the information was in the ATSB’s possession and supplied by it to the person; whether the person obtained it independently; and whether the person had an existing right to access or use it ([25]–[27]).
The distinction between a physical device and the data recorded on it may also matter. The judgment concerns aircraft data cards, but its stated reasoning addresses the more general distinction between physical “evidential material” and information ([24]). The Court’s analysis was specifically that the cards themselves were not information protected by s 60, not that data on devices can never fall within a statutory definition of restricted information.
The case also involved onward disclosure. AIAC used the data in a report, provided information to the ATSB, and supplied the AIAC Report to CASA; Mr Zheng later obtained the report through a subpoena ([8], [19], [27]). The Court regarded the source of the information and AIAC’s independent entitlement as important. The judgment does not establish that any disclosure of information to CASA, a parent company, or another recipient is automatically permissible. Its conclusion follows from its findings about the source and entitlement in this case.
The procedural setting is also relevant. The Court considered an application for leave from an advance ruling, not a full appeal after trial or a final assessment of the underlying evidence. An applicant seeking leave must also meet the threshold stated at [21]. The decision therefore provides reasoning about both the statutory issue and the appellate posture in which it was raised.
The supplied judgment contains no discussion of later judicial decisions treating Australian International Aviation College Pty Limited v Zheng (No 2). It is dated 8 October 2025, and the text provided identifies no subsequent cases applying, distinguishing, following or questioning its reasoning. No account of later treatment can therefore be given from this source.
The judgment does identify authorities concerning the general leave-to-appeal threshold. At [21], it cites McEvoy v Wagglens Pty Ltd, Jaycar Pty Limited v Lombardo, Secretary, Department of Family and Community Services (NSW) v Smith, Gibson v Drumm and Carolan v AMF Bowling Pty Ltd. The judgment uses those authorities for the proposition that leave generally requires an issue of principle, a question of public importance or reasonably clear injustice beyond something merely arguable. It does not analyse them as authorities on the meaning of “restricted information” or on ss 60–62 of the TSIA.
The primary judge’s reasons, Zheng v Australian International Aviation College Pty Ltd [2024] NSWSC 1622, are referred to at [3] and discussed as the source of the advance ruling and factual findings ([19]–[20]). That is the lower-court decision under review, not later treatment of the Court of Appeal’s decision. The source supplied does not support conclusions about how other courts have interpreted or applied this judgment since it was delivered.
The judgment expressly records uncertainty about when the ATSB obtained possession of the data cards and whether they were returned to AIAC ([17]–[18]). The Court’s reasoning did not require it to resolve those questions, because it found that the ATSB could not download the data and that AIAC or the engine manufacturer did so before AIAC provided the data to the ATSB ([17], [26]). The precise custody history may therefore remain relevant in other factual settings, but this judgment does not determine its consequences.
The decision does not comprehensively define the boundary of “restricted information” under every limb of the s 3 definition. It addresses the applicant’s particular argument about information recorded by aircraft systems and the circumstances in which AIAC obtained it. Questions about information actually supplied by the ATSB to a non-staff member, or information obtained through a different statutory investigative power, were not decided on the facts presented.
The judgment also does not decide the outcome where the ATSB issues a certificate under s 60(5), or where a court considers an order under s 60(6). Those provisions are set out at [13], but the Court notes that no such certificate had been issued in this case ([20]). The relationship between those mechanisms and a distinct claim that information was independently obtained was not necessary to resolve the leave application.
Finally, this decision does not determine whether the AIAC Report or Simpson Report will be accepted as reliable or persuasive at trial, nor does it determine liability for the crash. The issue was whether those reports were inadmissible by reason of the TSIA and whether leave to appeal should be granted. The leave application failed; the underlying personal injury proceedings remained separate.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Australian International Aviation College Pty Limited v Zheng (No 2) [2025] NSWCA 222
Hearing dates: 25 September 2025
Date of orders: 8 October 2025
Decision date: 08 October 2025
Before: Mitchelmore JA at [1]
McHugh JA at [2]
Ball JA at [3]
Decision: (1) Extend the time for filing and service of the summons seeking leave to appeal to 26 June 2025 pursuant to r 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW);
(2) Summons otherwise dismissed;
(3) The applicant to pay the respondent’s costs of the application for leave to appeal.
Catchwords: EVIDENCE – advanced ruling by primary judge that two reports and their contents were not “restricted information” within the meaning of the Transport Safety Investigation Act 2003 (Cth) – whether primary judge erred in ruling the reports were not inadmissible – no error by primary judge
APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused
Legislation Cited: Evidence Act 1995 (NSW), s 192A
Transport Safety Investigation Act 2003 (Cth), ss 3, 12AA, 21, 25, 27, 32, 36(1), 40, 45, 60 to 62
Uniform Civil Procedure Rules 2005 (NSW), r 51.10(2)
Cases Cited: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Gibson v Drumm [2016] NSWCA 206
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
McEvoy v Wagglens Pty Ltd [2021] NSWCA 104
Secretary, Department of Family and Community Services (NSW) v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Zheng v Australian International Aviation College Pty Ltd [2024] NSWSC 1622
Category: Principal judgment
Parties: Australian International Aviation College Pty Ltd (Applicant)
Shenglong Zheng (First Respondent)
Canaan Lawyers Pty Ltd (Second Respondent)
Representation: Counsel:
J Giles SC with M Kalyk (Applicant)
I Harvey with T Bateman (First Respondent)
Solicitors:
GSG Lawyers (Applicant)
Vector Lawyers (First Respondent)
Moray & Agnew (Second Respondent – Submitting Appearance)
File Number(s): 2025/90612
Publication restriction: None
MITCHELMORE JA: I agree with Ball JA.
MCHUGH JA: I agree with Ball JA.
BALL JA: By a summons filed on 26 June 2025, the applicant, Australian International Aviation College Pty Ltd (AIAC), seeks leave (out of time) to appeal against orders made by the primary judge (Garling J) on 12 February 2025 under s 192A of the Evidence Act 1995 (NSW) that two documents the respondent, Mr Shenglong Zheng, seeks to rely on at trial are not inadmissible by reason of the provisions of the Transport Safety Investigation Act 2003 (Cth) (the TSIA). That advance ruling on evidence was made following the delivery of reasons by the primary judge on 20 December 2024: see Zheng v Australian International Aviation College Pty Ltd [2024] NSWSC 1622 (PJ).
The application for leave to appeal was filed out of time due to an error by the solicitor for AIAC. It is not suggested that Mr Zheng suffered any prejudice as a consequence of the delay and he made no submissions opposing leave to extend time. In those circumstances, an extension of time should be granted for the filing of the summons. However, for reasons which follow, in my opinion, the summons should otherwise be dismissed with costs.
AIAC operates an aircraft pilot training college based in Port Macquarie, New South Wales. Mr Zheng was one of its students. On the evening of 8 September 2017, he was seriously injured when the aircraft he was in on a training flight crashed into trees shortly after take-off.
On 1 March 2021, Mr Zheng commenced proceedings in the District Court against, relevantly, AIAC claiming personal injury damages for negligence arising out of the crash. In its defence, AIAC admits that its employee, the flight instructor, had control of the aircraft at all relevant times and admits the crash. It admits some, but not all of the details of the flight. It does not admit the details of what the instructor is said to have done shortly after take‑off. Nor does it admit the details of how the aircraft behaved before the crash.
The proceedings were transferred to the Supreme Court on 23 December 2021. Prior to their transfer, on 1 December 2021, Mr Zheng served on AIAC a report prepared by an aviation expert, Mr Bruce Simpson, relevant to the question of liability (the Simpson Report). One of the documents relied on by Mr Simpson in preparing his report was a report dated 24 September 2017 titled “Accident Report and Operational Recommencement Plan” that had been prepared by AIAC (the AIAC Report). It is those two documents that were the subject of his Honour’s advance ruling under s 192A.
As is obvious from its date, the AIAC Report was prepared shortly after the accident. It was prepared in a context where AIAC had ceased to fly following the accident. The primary judge found (and this finding is not challenged) that “the principal purpose of the Report was not to enable a final concluded view to be formed about the cause of the aircraft crash but, rather, was to enable flying operations to be resumed and, to the extent that approval or acquiescence was required so to do from CASA [the Civil Aviation Safety Authority], that such would be forthcoming” (PJ [62]; see also PJ[83]). Mr Zheng had obtained a copy of the report in response to a subpoena to produce documents issued on 7 October 2021 that he had served on CASA. The AIAC Report included information that had been extracted from two electronic recording devices that were installed in the aircraft. The first was a data card for a Garmin G1000 integrated avionics system (the G1000) which recorded sixty flight and engine data parameters. The second was a data card for the electronic engine control unit (ECU) which recorded data in relation to the engine and propeller.
Responsibility for investigating transport accidents in Australia is vested in the Australian Transport Safety Bureau (ATSB) under the TSIA.
ATSB is given power to investigate “any transport safety matter” (s 21). The function of ATSB is to improve transport safety. It is not:
(a) to apportion blame for transport safety matters;
(b) to provide the means to determine the liability of any person in respect of a transport safety matter;
(c) to assist in court proceedings between parties (except as provided by this Act, whether expressly or impliedly);
(d) to allow any adverse inference to be drawn from the fact that a person was involved in a transport safety matter. (s 12AA(3)).
Following an investigation, ATSB must as soon as practicable produce a report: s 25. For the purpose of preparing its report, ATSB is given various investigative powers including a power to require a person to attend and answer questions or produce “evidential material” (s 32) and a power to remove evidential material with the consent of the owner of the material or, if it is not practical to obtain that consent, the consent of the occupier of the premises where the material is located (s 36(1)). ATSB may also apply for a warrant to enter premises and seize evidential material (s 40). Any evidential material that is obtained must be returned to the owner when it is no longer needed for the purpose of an investigation unless it is required for some other investigation or a coronial inquiry (s 45).
A report prepared by ATSB is not admissible in evidence in any civil or criminal proceedings, although it is admissible in a coronial inquiry (s 27).
Sections 60 to 62, which are central to the resolution of the current application, provide:
60. Limitations on disclosure etc. of restricted information
Commissioners, staff members and consultants
(1) A person commits an offence if:
(a) the person is, or has been, a Commissioner, staff member or consultant; and
(b) the person makes a record of information; and
(c) the information is restricted information.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person is, or has been, a Commissioner, staff member or consultant; and
(b) the person discloses information to any person or to a court; and
(c) the information is restricted information.
Penalty: Imprisonment for 2 years.
Non - staff members
(3) A person who has, or had, access to restricted information under section 62 must not:
(a) make a record of the information; or
(b) disclose the information to any person or to a court.
Penalty: Imprisonment for 2 years.
Defences
(4) Subsection (1), (2) or (3) does not apply to:
(a) anything done by a person in performing functions or exercising powers under, or in connection with, this Act or the regulations; or
(b) disclosure to a court in criminal proceedings for an offence against this Act; or
(c) disclosure to a court in civil proceedings where:
(i) the ATSB issues a certificate under subsection (5); and
(ii) the court makes an order under subsection (6).
Note: A defendant bears an evidential burden in relation to a matter in subsection (4). See subsection 13.3(3) of the Criminal Code.
Certificate
(5) The ATSB may issue a certificate in relation to restricted information, stating that the disclosure of the information is not likely to interfere with any investigation.
Courts
(6) If the court is satisfied that any adverse domestic and international impact that the disclosure of the information might have on any current or future investigations is outweighed by the public interest in the administration of justice, the court may order such disclosure.
(7) The court may direct that the restricted information, or any information obtained from the restricted information, must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in such manner, and to such persons, as the court specifies.
(8) If a person is prohibited by this section from disclosing restricted information, then:
(a) the person cannot be required by a court to disclose the information; and
(b) any information disclosed by the person in contravention of this section is not admissible in any civil or criminal proceedings (other than proceedings against the person under this section).
61 Release of restricted information in the interests of transport safety
(1) The ATSB may disclose restricted information to any person if the ATSB considers that the disclosure is necessary or desirable for the purposes of transport safety.
(2) However, the ATSB may only disclose restricted information that is, or that contains, personal information in the circumstances prescribed by the regulations.
(3) In this section:
"personal information" has the same meaning as in the Privacy Act 1988.
62 ATSB may authorise persons to have access to restricted information
The ATSB may authorise a non-staff member to have access to restricted information if the ATSB considers that it is necessary or desirable to do so.
Note: The non-staff member is subject to the confidentiality requirements of section 60.
… any of the following (but does not include OBR [on-board recording] information):
(a) all statements (whether oral or in writing) obtained from persons by a Commissioner, staff member or consultant in the course of an investigation (including any record of such a statement);
(b) all information recorded by a Commissioner, staff member or consultant in the course of an investigation;
(c) all communications with a person involved in the operation of a transport vehicle that is or was the subject of an investigation;
(d) medical or private information regarding persons (including deceased persons) involved in a transport safety matter that is being or has been investigated;
(e) in relation to a transport vehicle that is or was the subject of an investigation—information recorded for the purposes of monitoring or directing the progress of the vehicle from one place to another or information recorded in relation to the operation of the vehicle;
(f) records of the analysis of information or evidential material acquired in the course of an investigation (including opinions expressed by a person in that analysis);
(g) information that is contained in a document that is produced to the ATSB under paragraph 32(1)(b);
(h) information that is contained in a document that is produced to the Chief Commissioner under paragraph 36(3)(a) or (4)(a);
(i) information contained in a report made under a voluntary reporting scheme;
(j) information obtained or generated by the ATSB in the course of considering a report made under a voluntary reporting scheme;
(k) records of the analysis of information contained in a report made under a voluntary reporting scheme (including opinions expressed by a person in that analysis).
“OBR information” is information obtained from on-board recording equipment, which in essence is equipment which records sounds or images “in the control area of a transport vehicle” (s 48). The TSIA contains detailed provisions concerning information of that type, which are not relevant to the current application.
Immediately following the crash, ATSB commenced an investigation of it. For that purpose, it sought to obtain any information that was available from the G1000 and ECU data cards.
It is not entirely clear from the evidence when ATSB obtained possession of the cards themselves. The primary judge makes no specific finding on that question. In an affidavit sworn on 8 April 2024, the solicitor for AIAC says (at para 10) that “[d]ata cards for the G1000 and ECU that were part of the Aircraft wreckage were retained by ATSB as part of their investigation”. But it is not entirely clear from that evidence whether ATSB took possession of the cards at the crash site or subsequently. What is clear, however, is that ATSB did not have the ability to download any data from the cards and that was done either by AIAC or the engine manufacturer and provided by AIAC to ATSB. They were subsequently used by AIAC to prepare the AIAC Report.
On 30 June 2020, ATSB published its final report in relation to the crash. The primary judge found (PJ [23]) that “[a]t least by that time (if not earlier), the ATSB investigation had been completed”. It is unclear from the evidence whether the data cards have been returned to AIAC.
“The ATSB did not provide any information of any sort to the AIAC which was included in the Report. To the contrary, AIAC provided information by email to ATSB that the AIAC Report existed, and volunteered, subject to the appropriate formal request, to give that document to the ATSB.”
Consequently, “[t]he copies of the AIAC Report, in the possession of each of the AIAC, CASA and HNA General Aviation Group [AIAC’s parent company] were not ‘restricted information’” (PJ[86]). Nor was there any suggestion that any ATSB person had disclosed information to Mr Zheng or in any other way (PJ[87]).
AIAC advances three proposed grounds of appeal (a fourth was abandoned). It is not necessary to set those grounds out. In essence, the case AIAC seeks to advance is this:
The cards or at least the data downloaded from the cards was “restricted information” within the meaning of the TSIA because it was “information recorded in relation to the operation of the vehicle”;
AIAC obtained access to that information from ATSB pursuant to s 62 of the TSIA;
Consequently, under s 60(3) of the TSIA, AIAC was not entitled to disclose that information “to any person or to a court”;
Therefore, it was a breach of s 60(3) for AIAC to provide the AIAC Report containing the information to CASA (and to AIAC’s parent company);
As a result, under s 60(8)(b) the information disclosed in the AIAC Report is not admissible in any civil proceedings; and
Similarly, to the extent that the information is contained or disclosed in the Simpson Report, that report is not admissible in any civil proceedings.
In my opinion, the argument advanced by AIAC cannot succeed.
It is not correct to say that the cards themselves are information. They are physical items of equipment which may or may not contain information. The TSIA draws a clear distinction between physical things (which are described in various sections of the Act as “evidential material”) and information. Evidential material is not itself protected by s 60 and indeed it is liable to be returned when no longer of use to the investigation.
Moreover, it is not correct to say that AIAC obtained access to the information on the data cards because it was authorised by ATSB to do so under s 62 of the TSIA (because ATSB considered that it was necessary or desirable for AIAC to have that access). It is apparent from the context that the restricted information with which s 62 is concerned is restricted information in the possession of ATSB. If a person has restricted information otherwise available to them, the person does not require authorisation from ATSB under s 62 to have access to that information. To take an example, restricted information includes “medical or private information regarding persons (including deceased persons) involved in a transport safety matter that is being or has been investigated”. But it seems obvious that a person who supplied information of that type to ATSB is entitled to have access to that information (and use it) without requiring an authorisation under s 62.
In the present case, AIAC did not obtain the information on the cards from ATSB. Rather it downloaded or arranged for the information to be downloaded from the cards and provided it to ATSB. Moreover, the information was information to which AIAC was entitled, since it was information collected by equipment it owned or leased. Sections 60(3) and 62 of the TSIA should not be interpreted as containing an implied prohibition on a person from having access to and using information to which they are otherwise entitled. Rather, the prohibition is only on using information that a person did not have or otherwise have a right to that was supplied to the person by ATSB as part of ATSB’s investigation.
Those conclusions are consistent with the evident purpose of the restrictions contained in ss 60 to 62 of the TSIA. As part of ATSB’s investigations, it is to be expected that it will collect information from a variety of sources. Much of that will be of a confidential nature. The purpose of ss 60 to 62 is to prevent ATSB from disclosing that information other than for the purposes of its investigation, to prevent persons to whom the information is disclosed for the purposes of the investigations themselves from disclosing the information and to prevent others from obtaining access to the information by causing a court to issue a subpoena or by some other means or using that information in court proceedings if it was wrongfully obtained. The purpose of the provisions is not to prevent a person otherwise entitled to the information from using it or obtaining access to it. In the present case, as I have already explained, AIAC was entitled to use the information on the data cards because it was its information. Mr Zheng was entitled to obtain access to that information because the information had been used to prepare a report that AIAC provided to CASA and Mr Zheng was entitled to serve a subpoena on CASA.
It follows that the orders of the Court should be:
Extend the time for filing and service of the summons seeking leave to appeal to 26 June 2025 pursuant to r 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW);
Summons otherwise dismissed;
The applicant to pay the respondent’s costs of the application for leave to appeal.
**********
Australian International Aviation College Pty Limited
Zheng
(2017) 95 NSWLR 597
Time for filing and service of the summons seeking leave to appeal was extended to 26 June 2025 under r 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW); the summons was otherwise dismissed, and the applicant was ordered to pay the respondent’s costs of the leave application.
Moreover, the analysis contended for by AIAC would have the result that data obtained from an aircraft’s electronic systems, which will often be critical in determining the cause of an accident and therefore questions of liability, will generally not be available for that purpose if the data is provided to ATSB in the course of an investigation. That cannot be the intended effect of the provisions, particularly in circumstances where it is not part of ATSB’s function to determine those questions.
For those reasons, the application for leave to appeal has not disclosed an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable and must fail.