Choice Constructions Pty Ltd v Janceski [No 2]
[2009] WASC 215
•31 JULY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CHOICE CONSTRUCTIONS PTY LTD -v- JANCESKI [No 2] [2009] WASC 215
CORAM: SIMMONDS J
HEARD: 21 JULY 2009
DELIVERED : 31 JULY 2009
FILE NO/S: CIV 1500 of 2005
BETWEEN: CHOICE CONSTRUCTIONS PTY LTD (ACN 008 800 593)
Plaintiff
AND
METODIJA JANCESKI
DOSTA JANCESKI
Defendants
Catchwords:
Practice and procedure - Subpoena to produce documents - Whether Real Estate and Business Agents Supervisory Board required to produce documents in compliance with a subpoena - Whether secrecy provisions in s 138 of the Real Estate and Business Agents Act 1978 (WA) prohibit compliance
Legislation:
Income Tax Assessment Act 1936 (Cth), s 16(2)
Navigation (Marine Casualty) Regulations (Cth), reg 15
Real Estate and Business Agents Act 1978 (WA), s 138
Rules of the Supreme Court 1971 (WA), O 36B r 9
Result:
Objection dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr M N Solomon
Defendants: In person
Solicitors:
Plaintiff: B W Duckham & Co
Defendants: In person
Case(s) referred to in judgment(s):
Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1
Christoforidis v Cygnet Bulk Carriers SA [2002] FCA 690; 122 FCR 1
Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257
Hutchins v Federal Commissioner of Taxation (1986) 86 ATC 4549
Sydney Water Corporation v The Persons Listed in the Schedules trading as PricewaterhouseCoopers [2008] NSWSC 361
The Sanko Steamship Company Ltd v Sumitomo Australia Ltd (1992) 37 FCR 353
SIMMONDS J:
Introduction
These are the reasons for my determination to dismiss an objection to production and inspection of documents on a return of a subpoena. The subpoena bearing an issue date of 9 July 2009 (the subpoena) was issued at the request of the plaintiff and directed to the 'Real Estate & Business Agents Supervisory Board' (the Board). The objection was made by letter dated 16 July 2009 from the Registrar of the Board to the Principal Registrar of the court (the Registrar's letter). The Registrar's letter also enclosed what was referred to as 'one file containing the documents produced in accordance with the subpoena' (the documents).
The subpoena requested the following:
All files, books, documents and papers relating to the Reference No 06816/04 relating to the complaint dated 28 October 2004, made by Metodija Janceski and Dosta Janceski regarding Joe Nardizzi and Elders Real Estate West Coast Central.
The Registrar's letter grounded the objection to production and inspection on Real Estate and Business Agents Act 1978 (WA) (REBA Act) s 138, which reads, with its heading, as follows:
138.Secrecy
(1)This section applies to any person who is, or has been, a member or the deputy of a member, or the Registrar, an inspector, or any other officer, whether permanent or temporary, of the Board or a person engaged under section 12AA(b).
(2)A person to whom this section applies shall not, either directly or indirectly, except in the performance of a duty under or in connection with this Act, make a record of, or divulge or communicate to any person, any information concerning the affairs of any other person acquired by him by reason of his office or employment under or for the purposes of this Act.
Penalty: $5 000.
The documents were produced to the court, but on the basis they would not be made available to the parties, pending further order of the court after its consideration of the scope of REBA Act s 138(2).
In the objection for the Registrar the position was taken that production of documents to the court itself was not caught by a provision like REBA Act s 138. This was because the court is not a 'person' within the provision.
I consider that position to be correct. As is noted in the Registrar's letter, there is a substantial body of authority for the position. See on the very similar provision, Income Tax Assessment Act 1936 (Cth) s 16(2), Hutchins v Federal Commissioner of Taxation (1986) 86 ATC 4549, and Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257; see also on a predecessor provision to s 16(2) Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1, 6 (Dixon CJ), 10 (McTiernan J), 10 (Williams J) and 11 (Kitto J).
Below, I return to the question of whether or not those authorities in fact go further, to support a construction of REBA Act s 138(2) that s 138(2) does not apply to prohibit production of a document on a subpoena.
Here the Registrar's objection, as I understood it, was solely that REBA Act s 138 prohibited the production of the documents to the court on any basis that would allow the parties to gain access to the documents for the purposes of the trial in these proceedings. That trial had been listed for two days beginning 28 July 2009, but at a hearing before me on 21 July 2009 I vacated those dates, with the matter to be re-listed by the court, likely in August.
Access to documents produced under subpoena is of course allowed for under the Rules of the Supreme Court 1971 (WA) O 36B r 9. That access is subject to any objection made by the addressee of the subpoena: see O 36B r 9(7).
At the hearing on 21 July 2009, counsel for the plaintiff made submissions that the objection in the Registrar's letter should not be upheld. Counsel put that submission on the basis that the production of the documents to the court for all purposes was within REBA Act s 138(2) as production in 'the performance of a duty under or in connection with this Act'.
In the Registrar's letter the submission is put that it is 'arguable' the information in the documents would be 'indirectly divulged or communicated to persons in a manner which is prohibited by [REBA Act] s 138', and Canadian Pacific Tobacco Co Ltd is cited. I should note I do not consider that that authority stands against the dismissal of the present objection, as the authorities I refer to in the next section of these reasons appear to me to indicate.
The Registrar's letter goes on to state that the exception in s 138(2) does not apply as the provision of the documents is 'not in connection with a duty under or in connection with the [REBA] Act' (emphasis added, on my understanding of the submission). There is also in the Registrar's letter the statement that the author 'will abide by any orders from the Court in relation to the Documents', which I understood to be a waiver of the right of the Registrar of the Board to be heard in oral argument on the objection before me.
The applicable law and my conclusion
There appears to be no authority on the application of REBA Act s 138. Nor does the legislative history of the provision appear to offer any illumination.
I consider that on the ordinary meaning of REBA Act s 138(2) that I should not uphold the plaintiff's submission as to the application of the provision in this case. I do not see how the production of the documents to the court under a subpoena unrelated to proceedings before the Board could be understood as production 'under or in connection' with the REBA Act.
However, at the same time I consider REBA Act should be construed so that nothing in it is taken as intended to impair the ordinary power of the court to compel the production of documents in civil cases before it, including the power to allow the parties to inspect and copy the documents so produced.
This view appears to have been taken of similar provisions in other legislation: see The Sanko Steamship Company Ltd v Sumitomo Australia Ltd (1992) 37 FCR 353, 356 ‑ 360 (Sheppard J); see also Christoforidis v Cygnet Bulk Carriers SA [2002] FCA 690; 122 FCR 1, and Sydney Water Corporation v The Persons Listed in the Schedules trading as PricewaterhouseCoopers [2008] NSWSC 361. I note that reference was made to Canadian Pacific Tobacco in each of Sanko Steamship Company, Christoforidis and Sydney Water Corporation.
Sanko Steamship Company concerned a subpoena in civil proceedings arising out of a maritime incident. The subpoena was to produce records, in the possession of the Department of Transport and Communications, of interviews conducted by an investigator appointed by the Department.
Sheppard J was concerned with reg 15 of the Navigation (Marine Casualty) Regulations (Cth) (the Regulations) made pursuant to the Navigation Act 1912 (Cth) s 425(1)(ea).
Regulation 15 was in the following terms:
Confidentiality
15.(1) If the Inspector or an investigator makes a record of evidence under paragraph 10(d), he or she must not divulge that record, 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)the person who provided that evidence; or
(b)a Board appointed to investigate the incident to which the evidence relates; or
(c)the Secretary; or
(d)the Minister.
(2)A person to whom a record of evidence is divulged under subregulation (1), and any person under the control of that person, is subject to the same rights and obligations under that subregulation as if the person were the Inspector or an investigator.
Sheppard J (356 - 360) reviewed authorities under the corresponding provisions in the federal income tax legislation previously referred to, as well as a corresponding provision under other federal legislation, and the provisions in the Regulations for production of reports on findings of investigations, as well as the conduct of hearings, which might be in public.
After that review he concluded as follows (360):
The analysis of the regulations which I have made establishes that persons interviewed by investigators can have no confidence that what they say will not become public. That circumstance coupled with the broad public interest which there is in the administration of justice leads me to conclude that nothing in reg 15 was intended to impair the courts' ordinary powers to compel the production of documents in a civil case which is to be heard by it. Whether one decides the matter upon those broad considerations or simply takes the view that, despite the reference to Boards of Marine Inquiry in the regulation, 'any person' does not refer to a court, is immaterial. In my opinion the regulation does not provide any basis for the denial of the ordinary entitlement to inspect documents which a party issuing a subpoena has.
The regulation is headed 'Confidential'. There may be reasons why, at least for the time being, some order should be made restricting the persons who are to have the right to inspect the documents. If that matter is of concern to the Department, I shall hear Mr Rowland on the form of the appropriate order. But subject to that matter, the documents produced by the Department will be made available for inspection by the defendant and its legal advisers.
I note that, as in Sanko Steamship Company, there was no objection taken before me on public interest immunity grounds to production or inspection on the subpoena.
Further, as I have indicated, there was in this case no objection to the parties' access to the documents produced on the subpoena except as that access might be prohibited by s 138.
That is, there was no indication the Registrar had any reasons why access to the documents should be restricted if REBA Act s 138(2) did not prohibit that access.
In the event I concluded that the objection of the Registrar should be dismissed. This was because REBA s 138(2) should be construed as inapplicable to the production and inspection, in accordance with the court's procedures, of documents produced on a subpoena to produce documents.
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