Travel Compensation Fund v John Harvey Blair & Ors [2004] NSWSC 501 | Case summary

JUDGMENT (on access to documents produced on subpoena) 1 HIS HONOUR: The plaintiff ("the Fund") is the description given to the trustees of a statutory compensation fund set up by regulation made under the Travel Agents Act 1986 (NSW) as part of a co-operative scheme between this State, the State of South Australia and the Australian Capital Territory. 2 The defendants are said to have been, at material times, directors of two companies in the collapsed Ansett group: Ansett Australia Limited and its wholly owned subsidiary, Traveland Pty Limited. 3 Those two companies are said to have been, at material times, licensed travel agents to which, or in respect of whose business, the statutory compensation scheme applied. 4 The proceedings before the Court comprise some eleven cases described as test cases. The nature of the proceedings and the issues involved were described by Einstein J in an earlier judgment in these proceedings [2003] NSWSC 72. I adopt and, in the interests of economy shall not repeat, his Honour's description. 5 Since those reasons were given, and pursuant to leave granted by his Honour, the Fund has further amended its summons: further amended summons filed 19 September 2003. 6 For present purposes, the relevant allegation is that set out in paragraph 49 of the summary of the plaintiff's contentions in that further amended summons: "49. [new] At the time Ansett accepted the Moneys Ansett was aware that: (a) there was a reasonable likelihood that it was insolvent or would soon become insolvent; (b) all its cash receipts were swept to accounts controlled by Air NZ for use by the Air NZ group treasury; (c) it was entirely dependent upon Air NZ for its day to day cash needs; (d) Air NZ had not given any legally binding commitment to support the cash needs of Ansett; and (e) it was unlikely Air NZ would indefinitely support the cash needs of Ansett." 7 The allegations in that paragraph are either not admitted or denied. 8 The Fund caused subpoenas to be issued addressed to Air New Zealand Limited ("Air New Zealand") and the Australian Securities & Investments Commission ("ASIC"). Those subpoenas were returnable on 5 April 2004. 9 Air New Zealand claimed that the subpoena addressed to it was too wide and that compliance with the subpoena would require it to produce documents that were commercially confidential. Accordingly, it negotiated with the Fund a regime whereby the scope of the subpoena was narrowed and whereby documents produced could be masked or redacted to conceal material said to be commercially sensitive and not to be relevant to the issues as agreed. 10 On 6 May 2004 a Registrar made orders by consent to give effect to the agreed regime and documents were produced to the Court accordingly. It is common ground that those documents were made available for inspection to the Fund's solicitors on 10 May 2004. 11 The subpoena addressed to ASIC requires production of the following documents: "1. The transcript of interviews, evidence or statements made or given between 14 September 2001 and 1 March 2002 by each of the following persons during the Australian Securities and Investment Commission ('ASIC') investigation, referred to in ASIC's press release of 14 September 2001, in connection with Ansett Australia Limited ACN 004 209 410 (' Ansett'), Ansett Holdings ACN 065 117 535 (' Ansett Holdings '), Traveland Pty Ltd ACN 000 240 746 (' Traveland') or Air New Zealand Limited ARBN 000 312 685 (' Air New Zealand '): (a) John Harvey Blair; (b) George Frazis; (c) Scott David Roworth; and (d) Gary Kenneth Toomey. 2. Any Documents put to, shown to or produced by the persons listed in paragraph 1 above in the course of the investigation referred to in paragraph 1 above. 3. All Documents by way of correspondence with the persons listed in paragraph 1 above or their legal representatives in the course of the investigation referred to in paragraph 1 above. 4. All Documents, including any relevant Notice of Change of Office holders or similar form, which relate to or concern the appointment or resignation of the directors of Ansett, Ansett Holdings, Traveland or Air New Zealand during the period 14 December 2000 to 14 September 2001 (' the relevant period '). 5. All Documents which relate to or concern the appointment of administrators to Ansett, Ansett Holdings and Traveland on or about 12 or 14 September 2001. In this Schedule ' Documents ' includes but is not limited to correspondence (including by electronic e.mail), memoranda, instructions, directions, reports, summaries, agreements, drafts, opinions, advices, file notes, internal documents, diary notes, files, notes of meetings and notes of conversations, including telephone conversations." 12 It is said that many, if not all, of the documents caught by para 2 of the schedule to the ASIC subpoena are documents in fact produced by Air New Zealand to ASIC, not under compulsion but, I accept, under the threat of compulsion. 13 The interviews referred to in paragraph 1 of that schedule were likewise not conducted under compulsion but, I accept, under the threat of compulsion. 14 On 19 April 2004, ASIC produced documents to the Court in answer to the subpoena. Deputy Registrar Walton made an order that the parties have access to those documents. Air New Zealand was not present on that occasion and did not object to the parties having access to or seeking any order equivalent to that made in respect of its own documents. There is no explanation as to why Air New Zealand did not appear on that occasion but this is not relied upon by the Fund as an answer to the notice of motion, to which I will shortly refer. 15 I interpolate that it was said from the Bar table, without dissent, that all the defendants have inspected the documents produced by ASIC. 16 Air New Zealand and the Fund agreed that Air New Zealand should review the documents produced by ASIC with a view to notifying the Fund of objections to access. This it has done. It has resulted in Air New Zealand filing a notice of motion on 11 May 2004 whereby, among others, the following orders are sought: "1 that the subpoena dated 23 March 2004 filed for Travel Compensation Fund and directed to the Proper Officer of Australian Securities and Investments Comission, alternatively paragraphs 1 and 2 thereof be set aside; 2 in the alternative that the plaintiff be not permitted to have access to any document produced in response to the said subpoena or paragraphs 1 and 2 thereof; 3 in the further alternative, (a) that Air New Zealand be at liberty to mask such documents so as to leave visible only such parts of them as relate or refer to (i) the financial position of Ansett Australia Limited (Ansett Australia) and/or Ansett Travel Pty Ltd (formerly Traveland Pty Limited) (Traveland); (ii) changes to the corporate governance policy applied by Air New Zealand to Ansett Australia and Traveland (and other subsidiaries of Air New Zealand) relating to standardisation of the boards of directors of subsidiaries of Air New Zealand; and/or (iii) the specific positions and duties of the defendants (Messrs Blair, Frazis, Roworth and Toomey) as directors of Ansett Australia and Traveland; for the period from 1 November 2000 to 30 September 2001; and (b) that the plaintiff be permitted only to see copies of the documents so masked;". 17 That notice of motion was misconceived. What was required was an order varying the orders made by Deputy Registrar Walton on 19 April 2004. The Fund, however, although it raised that issue, did not say that the notice of motion should fail on that technical basis. It has, very sensibly, dealt with the substance of the problem. 18 In submissions, Air New Zealand said that the documents produced were confidential and commercially sensitive by their very nature. In relation to what I will call the paragraph 2 documents, it is submitted that they fell into four categories: (1) strategy decisions; (2) advice thereon; (3) documents dealing with prospective matters of commercial sensitivity, some going as far into the future as 2006; and (4) documents dealing with the competitors to Air New Zealand and its competition strategies, relating not just to marketing and similar matters but to the acquisition of assets. 19 There was no acceptable evidence that the documents in question were in fact commercially sensitive or confidential. Air New Zealand produced a folder of documents, which included the transcripts referred to in paragraph 1 and at least some of the paragraph 2 documents. That folder was marked for identification 1. At the request of Air New Zealand, I looked at some of the documents. I concluded, as to two of those documents, which are tabbed 3 and 4 in MFI 1, that they were confidential. My inspection showed that the description given to the documents in submissions was accurate. It showed, in particular, that the question of confidentiality was not just historical but current. It confirmed that the documents included reference to commercial and marketing matters going forward for a number of years. 20 I also looked at the document tabbed 9. I did that for the purpose of considering a submission by Air New Zealand that it was subject to legal professional privilege. I concluded that it was. I therefore looked at document 8 for the same purpose because that document was said to contain a summary of the instructions given leading up to and the advice given in document 9. I concluded that one paragraph of document 8 - the third paragraph on its second page - was subject to legal professional privilege. 21 I looked no further at the documents in MFI 1. For reasons that I gave in Singapore Airlines v Sydney Airports Corporation & Anor [2004] NSWSC 380 at [66], I do not think that it is appropriate for the Court to reach factual conclusions through a process that necessarily excludes one party from participation when the other, which contends for those factual conclusions, could have (but did not) put on admissible evidence to support those conclusions. I think that there is a clear distinction between the process of the Court examining a document for the purpose of seeing whether it attracts legal professional privilege - something which has long been done and which is sanctioned both by authority of the highest standing and by the Evidence Act 1995 (NSW) - and the Court undertaking what is, in effect, an evidence-gathering exercise. 22 In this case, it should be noted that the Fund neither objected nor consented to my looking at the documents. By contrast, in Singapore Airlines, those to whom the documents were not at that stage made available did object to my looking at them. 23 For reasons that will become apparent, I proceed on the basis that the relevant paragraph 2 documents are commercially confidential and that, in general terms, Air New Zealand would be entitled to protect that confidence. 24 It was said that the transcripts of the interviews with the defendants ranged over a variety of topics, some of which were confidential. It was said that the interviews went beyond the issues that are raised by paragraph 49 of the further amended summons. The interviews, on their face, are said to relate to an investigation into the affairs of Ansett Holdings Limited, administrator appointed and Air New Zealand for the period from 23 June onwards. 25 The subject matter of the investigations may be gleaned in more detail from an ASIC press release dated 14 September 2001, which was tendered without objection. In that press release the then chairman of ASIC noted that ASIC had commenced investigations into the collapse of "Ansett". He said that the investigation would focus on possible breaches of directors' duties under the Corporations Act, which would include investigating compliance with the insolvent trading provisions of that Act and the potential liability of the holding company, Air New Zealand. 26 In support of the relief claimed by its notice of motion, Air New Zealand relied on the decision of Bryson J in Maronis Holdings Ltd v Nippon Credit Australia Ltd (2000) 18 ACLC 609. It may be said that his Honour did not set out any new or unusual principle in his reasons in that case. However, he summarised the principles in a way that, with respect, I propose to follow. Thus, at 613[15] he said: "When the Court is considering what directions it should give allowing or restricting access to and inspection of documents which have been produced to it under subpoena it should take into account claims of confidentiality and give them appropriate protection; however protection of claims of confidentiality is not the only consideration before the Court when a party applies for access, and may be overridden by other considerations relating to public interest in the administration of justice and the interests of litigants in having relevant evidence available for tender." 27 His Honour continued, referring to The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 and National Employers Mutual General Association Ltd v Waind and Hill (1978) 1 NSWLR 372. Having dealt with the well known passages from those authorities he said at 616[29]: "[29] In my opinion the first ground of objection relating to the confidentiality of the information is not a reason why inspection of the documents should be refused. However I am of the view that I should impose special controls on access so as to reinforce the obligations of the plaintiffs and their legal advisers to restrict the use of the information to the purpose of the conduct of these proceedings. I am of the view that there is much in the documents to be inspected which is likely to be of little or no use for the conduct of the proceedings; my opportunity to form a view is restricted, but there is a great deal of diffuse information, and much of it could be adverse to the interests of these defendants and other persons or embarrassing to them. For this reason I will limit access to the documents and to the information in them to barristers and solicitors representing the plaintiff, except in respect of any particular matter which they later satisfy me it is appropriate to communicate further."

28 A submission had been made to his Honour that the documents in question did not contain information related to any issue in the proceedings. His Honour dealt with that at 616[31] as follows: "[31] On the fourth ground of objection these reasons show my view that those representing the plaintiffs should have an opportunity to inspect the documents and to act on their own view of the relation of the documents to issues in the proceedings." 29 Air New Zealand also relied on the decision of Lindgren J in Wenkart and Holden v The Commissioner, Australian Federal Police (NG106 of 1995, 19 September 1995, unreported). It also relied on the decision of Rattee J in Pharaon v Bank of Credit and Commerce International SA (In Liquidation) [1998] 4 All ER 455. 30 In each case, the party objecting to inspection obtained an order that certain confidential material be masked (as Lindgren J put it) or redacted (as Rattee J put it). It is apparent, however, from the reasons of Lindgren J, that his Honour took the course that he did not because he thought that it was the usual course or that it was, in the circumstances, appropriate, but because, masked access having been offered, the applicants were prepared to start there. In other words, in the proceedings before his Honour, the person seeking production of documents had been offered limited and masked access and was prepared to commence its inspection on that basis. This is clear from the concluding paragraphs of his Honour's reasons where he noted that limited inspection, with potentially prejudicial material blacked out, would be afforded but that he: "reserved liberty to the applicants, if they so saw fit, to apply for an order that upon an undertaking being given to the Court ... the material blacked out should be made available." 31 His Honour said that he took that course: "so that the documents, ... with the blacked out material, could be produced for inspection without further delay and so that the matter might be progressed." 32 The form of the undertaking to which his Honour referred was that: "The contents of the material blacked out and/or the effect of that material would not be revealed to anyone other than the legal advisers of the applicants and there would have to be an undertaking by them to the effect of the implied undertaking, which always obtains, that the material would not be used for any purpose other than the legitimate purposes of these proceedings." 33 It is apparent that his Honour's decision is not authority for the general proposition that, where documents contain commercially sensitive material that is or may be outside the scope of the asserted purpose, that material should always in some way be masked. 34 Pharaon was a special case. The party seeking production of the documents was an American corporation. The documents were required for litigation in the United States of America. The consequence of providing documents to that party for that purpose was described by Rattee J at 461: "One other important factor is that it appears that under the relevant US law First American will be under no constraint at all as to what use it can make of documents which may be disclosed to it pursuant to the subpoena. Unlike the position in English law, it will not be limited to using those documents for the purposes of the litigation in which they were obtained. Late in the day, in the course of the hearing before me, Mr Rubin on behalf of First American proffered an undertaking that First American would not use documents disclosed to it pursuant to the subpoena other than for the purposes of the particular US litigation presently on foot, but subject to provisos to the effect that those documents could be disclosed by First American without limitation to the four remaining active defendants to its action in the United States, and to those defendants with whom settlement arrangements have been made by First American, under which First American would be obliged to make such documents available to those parties, and that First American would also be permitted to disclose the documents to US regulatory authorities with whom it may have entered into agreements obliging it to make such disclosure. However, I am told and of course I accept, that under the relevant US law documents which are made available to First American or its lawyers pursuant to the subpoena must be made available by them to all other parties to the American litigation if those parties request such disclosure. Faced with that problem, First American again in the course of the hearing before me, offer to extend its undertaking to include an undertaking to make an application to the US court called a 'protective order', having the effect of limiting the use to which the documents could be put by parties to the proceedings. I, of course, have no means of knowing what the prospects of success of such an application would be. I have no evidence on the point. I am told by Mr Rubin on instructions that lawyers representing First American believe that such prospects would be good." 35 Against that background, his Lordship concluded that some restricted access should be given. He said at 465-466: "However, on balance, I am satisfied that the public interest in making the documents relating to the alleged fraud in the acquisition of CCAH shares by BCCI available in the US proceedings does outweigh the public interest in preserving confidentiality as to those documents, provided that disclosure goes no further than is reasonably necessary to achieve the purpose of that public interest in disclosure. This means, in my judgment, that on the undertaking proffered by First American to make an application to the US court for a particular order, to which I have referred, being given to this court, Price Waterhouse UK should be at liberty to disclose, pursuant to the US subpoena, documents relating to purported loans made by BCCI companies to the record shareholders named in a list to be annexed to my order, which will be the list produced by Mr Rubin in the course of the hearing, and secured by shares in CCAH. However, despite the logistical difficulties involved in redaction, I am not satisfied that any public interest requires disclosure, so far as it can be avoided, of documentary material relating to other customers' affairs, that is to say persons other than the CCAH record shareholders set out in the list, merely because such material is included in a composite document, part of which relates to the CCAH loans and the CCAH record shareholders. Therefore, in my judgment, the liberty to disclose documents relating to CCAH and CCAH loans must be subject to a proviso that in the case of documents so relating but also relating to other confidential affairs of persons other than the record shareholders, disclosure shall not be made of those documents without taking all reasonably practicable steps by a process of redaction to conceal such parts of the documents as relate to the affairs of other persons." 36 Clearly, the order that his Lordship made was a function of the special considerations that he had indicated. I do not regard Pharaon as authority for the proposition that, in the ordinary case and absent some special considerations, masked access only could be provided. In other words, I do not regard Pharaon as setting out any general principle. 37 The Fund relied on a number of decisions to show that, where the balancing exercise required production or access, considerations or commercial confidentiality could be sufficiently protected by making access available only to defined people and subject to undertakings (express or implied) or orders as to confidentiality. The decisions included Australian Broadcasting Commission v Parish (1980) 29 ALR 228; the decision in Maronis; Ex parte Fielder Gillespie [1984] 2 Qd R 339; and Conrock Limited v CSR Ltd (1990) 96 ALR 690. 38 It is, I think, sufficient to refer to the reasons of McPherson J in Fielder Gillespie. At 341, his Honour dealt with the question of confidentiality as follows: "The remaining question is that of confidentiality. Confidentiality is not itself a valid basis for resisting inspection. Prima facie a party is entitled to production for inspection and copy of documents disclosed in the affidavit of documents unless some recognized claim of privilege is available and taken. Nevertheless, in cases such as this the courts have sought to strike a balance between the right to discovery for the purpose of the litigation and the interest in maintaining confidentiality in secret processes that may be used for purposes of competition: see Warner-Lambert Co. v. Glaxo Laboratories Ltd. [1975] R.P.C. 354, where the authorities are discussed. A practice has developed of permitting inspection by a specified person only, who has sometimes been an independent expert but more commonly a senior officer of the applicant party, on terms designed to restrict communication and the use (or abuse) of the information obtained by that inspection for purposes other than the litigation: see Warner-Lambert Co. v. Glaxo Laboratories Ltd. (supra); Centri-Spray Corp. v. Cera International Ltd. (1979) 101 D.L.R. (3d) 594. That is the course I propose to follow in the present case." 39 Air New Zealand did not suggest that restricted access and the imposition of appropriate conditions as to confidentiality would not be effective to prevent wider, let alone public, dissemination of the relevant material. It said simply that the material was confidential; that it was entitled to protect its confidence; and that protecting its confidence means, in the circumstances, that no one should have access. It may be noted, as I have said, that it appears that the defendants may already have had access. 40 In light of this approach, it is salient to bear in mind what Stephenson LJ said in Church of Scientology of California v Department of Health and Social Security [1979] 3 All ER 97 at 106-107: "In most cases, an undertaking is unnecessary because it is implied, as was pointed out in Alterskye v Scott where an undertaking was refused. In the remainder, an undertaking by the party himself or by his counsel or solicitor may be enough; but it seems to me that there is a very small hard core of cases where the undertaking is not enough and where the court may come to the conclusion that the party cannot be trusted not to misuse the information and so abuse the process of discovery. That is really what counsel for the defendants is maintaining in this case in support of the order under appeal; and in the form in which it is made, particularly that which relates to the hospital notes and medical reports, it seems to me that the order must be justified on that basis, or it must be revoked or modified." 41 In relation to the para 2 documents, I conclude that the Fund should have restricted access to all but two categories of documents. 42 The restriction to which I refer is that access, in the first instance, should be given only to the solicitors and counsel for the Fund on the basis of restrictions equivalent to those imposed by Bryson J in Maronis. If wider access is sought, then it may be the subject of further application to the Court if the parties are unable to agree. 43 The first category of exception, to which I referred, is that access should not be given to documents in respect of which there is a claim for legal professional privilege. The second category of restriction is that access should not be given to documents which, it is said, are appropriately confidential and do not bear at all on any issue in the proceedings. 44 In each category of exception, however, the solicitors for Air New Zealand must produce a schedule listing and describing the document in question and its general nature (without going into such detail as destroys the privilege or the confidentiality) so that the Fund can make an informed judgment whether to press for access. Again, if access to documents in either of those categories of exceptions is required, it may be the subject of further application. 45 I have reached this conclusion on the basis of my limited inspection of the documents. That inspection made it clear to me that in general the documents may relate or contain information relevant to the allegation made in paragraph 49 of the further amended summons. It made it clear that the documents may also, or alternatively, suggest a further process of enquiry. (That having been said, it should be noted that one of the documents I looked at - document 4 - appeared to be one that would fall within the second category of exception to which I have referred.) 46 That having been said, and given that there is no reason to fear the loss of confidentiality in the sense of public dissemination - ie, given that the restrictions that I have indicated must be taken to be effective - I think that the balancing exercise requires limited access. Equally, I think that balancing exercise requires the deferral of access in the two limited categories that I have described. 47 At first sight, the last aspect of this approach might seem to indicate some inconsistency, both with the general approach I have taken and what Bryson J said in Maronis at 616[31]. However, it is explicable on the basis that the issues advanced by paragraph 49 of the further amended summons are discrete. As part of the balancing exercise, I think that, prima facie, documents that cannot bear on those discrete issues should not be inspected in the first instance. Finally, the approach I have indicated still leaves the door, if not open then, at least, ajar to the Fund. 48 In relation to the transcripts, I think that the same balancing exercise indicates that access should be granted on the limited basis that I have indicated in respect to the paragraph 2 documents and subject to the same restrictions. 49 In neither case - transcripts nor paragraph 2 documents - do I think it is appropriate to permit masking. It may be assumed that the Fund may best know its own case and how to set about proving that case. I do not think it is for Air New Zealand to tell the Fund how to prove its case. Air New Zealand is not a party to these proceedings. I do not know how much of the pleadings or other material it has. However, I think it is highly likely, to the point of near certainty, that Air New Zealand is unlikely to be fully apprised of all the issues, so as to make fine judgments on a document that clearly contains some relevant material, that other parts of it might not be sufficiently relevant to justify providing them also to the Fund. 50 I therefore conclude that Air New Zealand's notice of motion should be dismissed with costs. As to costs, it was indicated yesterday, in the course of argument, when I said what I proposed to order, that there was nothing that Air New Zealand wished to put on the question of costs. 51 I direct the Fund to bring in short minutes of order to give effect to these reasons.

Travel Compensation Fund v John Harvey Blair & Ors

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