Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd

[1987] FCA 249

Re: ELNA AUSTRALIA PTY. LIMITED
And: INTERNATIONAL COMPUTERS (AUSTRALIA) PTY. LIMITED
No. G442 of 1984
Practice and Procedure - Courts

COURT

THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.

CATCHWORDS

Practice and Procedures - powers of Federal Court to issue Letters of Request - Evidence Act 1905, Part IIIB - "inherent" jurisdiction of Federal Court - whether order for production of documents is taking, or causing to be taken evidence".

Courts - meaning of expression "inherent jurisdiction" as applied to courts in Australia.

The Evidence Act 1905 Part IIIB

Acts Interpretation Act 1901

Parsons v. Martin (1984) 5 FCR 235 considered.

In re Smith (1891) 1 Ch 323 referred to

Lucas Industries Limited v. Hewitt (1978) 45 FLR 174

Australian Consolidated Press Limited v. Bond (1982) 61 FLR 91 referred to

National Employers' Mutual General Association Limited v. Waind and Hill (1978) 1 NSWLR 372 followed.

Spencer Motors Pty. Ltd.. v. L.N.C. Industries Ltd (1982) 2 NSWLR 921 followed.

Radio Corporation of America v. Rauland Corporation (1956) 1 QB 618 referred to.

Panthalu v. Ramnord Research Laboratories Ltd (1966) 2QB 173

Seyfang v. G.D. Searle and Co. (1973) 1QB 148 referred to.

Smorgon v. Australian and New Sealand Banking Grouop Ltd (1976) 134 CLR 475 referred to.

Thompson Australia Holdings Pty. Ltd. v. The Trade Practices Commission (1981) 148 CLR 150 referred to.

Philip Morris Inc v. Adam P. Brown Male Fashions Pty.Ltd (1981) 148 CLR 457 referred to.

Hardie Rubber Inc v. General Tire and Rubber Co. (1972) 46 ALJR 326 referred to.

Pearce v. Butler (1985) 8 FCR 40 referred to.

Moodalay v. Morton (1785) 1 Brown Ch Cas 469, 28 ER 1245 referred to.

Lord Belmore v. Anderson (1792) 2 Cox 288, 30 ER 134 referred to.

Thorpe v. Macauley (1820) 5 Madd. 218 56 ER 877 referred to.

Devis v. Turbull (1822) 6 Madd. 232 56 ER 1080 referred to.

HEARING

SYDNEY

#DATE 15:5:1987

Counsel and Solicitors for Applicant: Mr P.M. Donohoe instructed by Messrs McDermott and McGruther.

Counsel and Solicitors for Respondents: Mr A.J.L. Bannon instructed by Messrs Allen Allen and Hemsley.

ORDER

The motion be dismissed.

The Applicant pay the Respondent's costs of the motion.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

The applicant in these proceedings moves on notice of motion for the following order:-

"That a request be issued by or on behalf of the Court to the High Court of Judicature (sic) for an order ffor evidence to be obtained in the United Kingdom by an order for production of documents set forth in the schedule hereto by ICL Computers Limited of ICL House, Putney, London, England."

The schedule to the notice of motion describes the documents concerned as follows:

"1. All letters, copy letters, telexes, copy telexes, sales presentation matter and inter-company memoranda passing between International Computers (Australia) Pty Limited and ICL Computers Limited between July 1980 and July 1981 containing information concerning a computer which in July 1981 was described by ICL Computers Limited as "The System 25".

2. One copy of each of:

(1) specifications

(2) technical information; and

(3) explanatory memoranda furnished by ICL Computers Limited to International Computers (Australia) Pty Limited between July 1980 and July 1981."

ICL Computers Limited is incorporated under the laws of England.

1. The applicant submits that the Court has power to make such an order pursuant to Part IIIB of the Evidence Act 1905 and Order 24 of the Federal Court Rules. Part IIIB was inserted in the Evidence Act by the Evidence Amendment Act 1985.

2. In Parsons v. Martin (1984) 5 FCR 235, the Full Court of this Court held that a Court of Petty Sessions of Western Australia had no inherent or other power to cause the issue of a letter of request to the courts of other countries. The matter had come before this Court on an application under the Administrative Decisions (Judicial Review) Act 1977, in which a challenge was made to decisions of a magistrate in the course of committal proceedings for breaches of federal law, namely the Banking (Foreign Exchange) Regulations 1946.

3. In his second reading speech upon the Evidence Amendment Bill 1985, the Attorney-General told the House of Representatives that one of the objects of the Bill related to the obtaining of evidence abroad for use in criminal or civil proceedings in Australia under Commonwealth law. The Attorney-General said:-
   
   

"The problem was further highlighted in recent prosecutions in Western Australia for alleged breaches of the Banking (Foreign Exchange) Regulations. The Federal Court of Australia held that the relevant court, which was a magistrates court, had no power to issue letters of request to an overseas court to have certain evidence taken abroad. ... In most respects the law concerning evidence, practice and procedure in relation to Commonwealth civil and criminal proceedings is that applying in the State or Territory where the hearing is being conducted. The Evidence Act 1905 deals only with limited areas, and these do not include procedures for the taking of evidence overseas. The laws of evidence and procedure differ from State to State. The High Court of Australia, the Federal Court and Supreme Courts are able to order the obtaining of evidence overseas in civil matters before them. However, not all superior courts may order the taking of evidence in criminal matters. In no State or Territory does it seem possible for such evidence to be obtained in relation to criminal matters in inferior courts. The Bill will allow the obtaining of evidence overseas, both oral and documentary, for use in Federal and Territory courts or State courts exercising Federal jurisdiction in civil or criminal matters. This will fill gaps that exist in State laws."

1. I turn now to the text of the legislation now appearing as Part IIIB of the Evidence Act 1905. This Court is a "superior court" within the definition of that term in s.7T. Section 7Z(2) confers a rule making power which in the case of this Court, has been implemented by amending Order 24 to provide for Rule 2A and Rule 3(1). The expression "examination" is defined in section s.7T as including "any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to the letter of request issued as a result of an order made by a court under (Part IIIB)." The word "person" in the absence of the contrary intention includes a corporation (Acts Interpretation Act 1901, s.22).

2. Section 7V(1)9c) is the central provision of Part IIIB upon which reliance is placed by the applicant. The relevant provisions of s.7V are in the following terms:-
   
   

"(1) In any civil or criminal proceeding before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, on the application of a party to the proceeding, make, in relation to a person outside Australia, an order -

(a) for the examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint;

(b) for the issue of a commission for the examination of the person on oath or affirmation at any place outside Australia; or

(c) for the issue of a letter of request to the judicial authorities of a foreign country to take, or to cause to be taken, the evidence of the person.

(2) In determining whether it is in the interests of justice to make an order under sub-section (1) in relation to the taking of evidence of a person, the matters to which the court shall have regard include the following:

(a) whether the person is willing or able to come to Australia to give evidence in the proceeding;

(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding;

(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order. ...

(4) Where a court makes, in relation to a proceeding, an order under sub-section (1) of the kind referred to in paragraph (1)(c) in relation to the taking of evidence of a person, the court may, in its discretion, include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters:

(a) the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise;

(b) the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances;

(c) any prescribed matter.

(5) Subject to sub-section (6), the court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in an examination held as a result of an order made under sub-section (1) or a record of that evidence.

(6) Evidence of a person so tendered is not admissible if -

(a) it appears to the satisfaction of the court at the hearing of the proceeding that the person is in Australia and is able to attend the hearing; or

(b) the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.

...

(9) In this section, a reference to evidence taken in an examination includes a reference to -

(a) a document produced at the examination; and

(b) answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination."

1. The applicant submits that the order it seeks is of the description in s.7V(1)(c), namely the making, in relation to ICL Computers Limited, a person outside Australia, of an order for the issue of a letter of request to the English High Court of Justice (mistitled as "High Court of Judicature" in the motion) "to take, or to cause to be taken, the evidence of (that) person."

2. The question is whether the procedures in England which the applicant seeks to have brought into operation are within the meaning of the Australian Act procedures for the taking or causing to be taken the evidence of ICL Computers Limited. The meaning of the expression "to take or to cause to be taken, the evidence of (a) person" in an Australian statute would ordinarily be interpreted in accordance with the law in force in this country (that is statute law and common law) rather than in accordance with the law of that country to the courts of which the letter of request was directed. Nothing in this case turns on that distinction, and reference was made by both sides to English legislation and court procedures, and common law institutions and concepts were treated as applicable without any relevant national differences.

3. The respondent submits that an order for production of documents to a court is not, in the ordinary usage of a common law system, an order for the taking or causing to be taken the evidence of the party ordered so to produce the documents, whether an individual or a corporation appearing by its proper officer. Thus, it was said, a provision such as Order 38 Rule 13 of the Rules of the English Supreme Court of Judicature which speaks of an order to produce documents, has the effect of a subpoena duces tecum and does not involve the Court to whom the documents are produced in the taking of evidence by reason only of that production. Order 38 Rule 13 is as follows:
   
   

"13. -(1) At any stage in a cause or matter the Court may order any person to attend any proceedings in the cause or matter and produce any document, to be specified or described in the order, the production of which appears to the Court to be necessary for the purpose of that proceeding.

(2) No person shall be compelled by an order under paragraph (1) to produce any document at a proceeding in a cause or matter which he could not be compelled to produce at the trial of that cause or matter."

This rule and its predecesors have a fairly long history and they have indeed been treated as having the effect of a subpoena: In re Smith (1891) 1 Ch 323; Supreme Court Practice, 1985, Vol. 1, paragraph 38/13/1. See also Order 33 Rule 13 of the Federal Court Rules, Order 36 Rule 12 of the New South Wales Supreme Court Rules, Order 37 Rule 7 of the Victorian Supreme Court Rules, Lucas Industries Limited v. Hewitt (1978) 45 FLR 174, and Australian Consolidated Press Limited v. Bond (1982) 61 FLR 91.

1. The production of documents to a court in compliance with a subpoena or an order in the nature of a subpoena is not the taking of evidence or the causing of the taking of evidence of the person producing the documents: National Employers' Mutual General Association Limited v. Waind and Hill (1978) 1 NSWLR 372 at 377-385, Spencer Motors Pty. Ltd. v. LNC Industries Ltd (1982) 2 NSWLR 921 at 927-928. See also the reasoning of Devlin J. (as he then was) in Radio Corporation of America v. Rauland Corporation (1956) 1 QB 618 at 647-8.

2. The applicant submits that nevertheless, on the true construction of Part IIIB, the procedure I have described is one for the taking of evidence. He referred to the Attorney-General's second reading speech but whilst the Attorney certainly dealt with the obtaining of oral and documentary evidence he did not do so in any way which, in my view, supports the applicant's submission. The applicant further referred to s.7V(9) as throwing light upon s.7V(1)(c). But the reference there to production of documents at an examination is plainly to production at a proceeding for the taking of evidence (see the definition of "examination" in s.7T, and sub-sections (5) and (6) of s.7V).

3. Some reliance was also placed by the applicant upon s.2(2)(b) of the Evidence (Proceedings in Other Jurisdictions)Act 1975 (U.K.). This empowers English courts to respond to requests issued by, inter alia, foreign courts, by making orders, inter alia, "for the production of documents". That power in the English courts cannot of course remedy any limitation upon the powers of an Australian superior court under Part IIIB of the Evidence Act 1905. Further, it appears that s.2(2)(b) of the 1975 United Kingdom Act was introduced to remedy what was perceived to be a deficiency in earlier legislation. This had been held, in the absence of other clear words, to authorise orders for the production of documents as ancillary to the oral testimony of a witness, but not to authorise orders in effect for discovery of documents against a person not a party to the action: Radio Corporation of America v. Rauland Corporation (1956) 1 QB 618 at 647-8, Panthalu v. Ramuord Research Laboratories Ltd (1966) 2 QB 173 at 189, Seyfang v. G.D. Searle & Co. (1973) 1 QB 148 at 151-152; cf Smorgon v. Australian and New Zealand Banking Group Ltd (1976) 134 CLR 475 at 483-4.

4. Accordingly, I hold that the application before me is not for an order satisfying the description in s.7V(1)(c) of the Evidence Act 1905.

5. Alternatively, the applicant invoked what was described as the "inherent jurisdiction" of the Court. In Parsons v. Martin (1984) 5 FCR 235 at 240-241, the Full Court explained that (a) the expression "inherent jurisdiction" has come to be used to describe the power a court may have independent of statutory authority and (b) in Australia there is in truth no court of unlimited jurisdiction in this sense. There are no such courts because federal and territory courts are created by Parliament (or in the case of the High Court provided for in the Constitution itself), and State courts by or pursuant to Imperial, Colonial or State legislation, and none of these courts has jurisdiction embracing the totality of the jurisdiction of the others.

6. It may be that statute invests a particular State court with jurisdiction identified by reference to the jurisdiction in former times of English courts of law and equity so ancient in their origins as not to be the creation of statute. But that does not mean that a State court which by this indirect means is the universal legatee of that English heritage has the status of a court of "unlimited jurisdiction". The autochthonous nature of federal jurisdiction denies that status.

7. Thus, this Court has such jurisdiction as is invested in it by statute and such powers attendant upon that jurisdiction are expressly or by implication conferred by the legislation that governs it.

8. The effect of the reasoning in Parsons v. Martin (1984) 5 FCR 235, is to deny the generality of the assertion by Wigmore (made in para 2145a of his treatise) that it should not be doubted that "any domestic court has inherent power at common law to issue ...letters rogatory". In truth, that statement was never true of the English superior courts exercising common law jurisdiction, and was true only of equity courts. I turn to consider the position of this Court in the light of the legislation in which its powers have their source.

9. This Court is created as a court of law and equity and as a superior court of record (Federal Court of Australia Act 1976, s.5(2)). It has (ss.20, 21, 22) what might be described as the general Judicature system powers and obligations: Thomson Australian Holdings Pty.Ltd. v. The Trade Practices Commission (1981) 148 CLR 150 at 161, Philip Morris Inc. v. Adam P. Brown Male Fashions Pty.Ltd. (1981) 148 CLR 457 at 489-490.

10. In Hardie Rubber Co. v. General Tire & Rubber Co. (1972) 46 ALJR 326, the High Court issued a letter of request to a foreign tribunal to examine witnesses. Reliance was placed upon the High Court Rules for the necessary power (see 46 ALJR at 327). In Pearce v. Button (1985) 8 FCR 40, Pincus J. held he had power of the same description, referring to Order 24 Rule 1(b) of the Rules of this Court and to the history of this power in the English superior courts. At the time of this decision, Part IIIB had not yet appeared in the Evidence Act 1905.

11. It appears that whilst statute was needed to empower the English common law courts to issue commissions and to appoint special examiners for the examination of witnesses outside the British dominions, Chancery (and the Court of Exchequer on its equity side) claimed and exercised an inherent power to issue such commissions and to appoint examiners, both in aid of suits in the exclusive jurisdiction and in aid of actions at law: Moodalay v. Morton (1785) 1 Brown Ch Cas. 469, 28 ER 1245; Lord Belmore v. Anderson (1792) 2 Cox 288, 30 ER 134; Thorpe v. Macauley (1820) 5 Madd 218, 56 ER 877; Devis v. Turnbull (1822) 6 Madd 232, 56 ER 1080; Hume-Williams and Macklin "Evidence on Commission" 2nd Ed. Ch 1; Pomeroy "Equity Jurisprudence", 3d Ed 2' 213, 214. The commissions issued in equity appear to have been limited to examination upon written interrogatories, in accordance with the general Chancery procedure of not allowing witnesses viva voce except by special order. See Ballow "A Treatise of Equity" ed. Fonblanque, Vol II, Book VI, Chapter 1, 2'2; Maddock "Practice of the High Court of Chancery", Vol 2, pp.405-415.

1. As the nineteenth century progressed, objections were made by various foreign governments to examination of witnesses on their territory by British appointed examiners, and the earlier procedures largely were replaced by the issue of letters of request to foreign courts either to take the evidence or to appoint some person to take it: Daniel's Chancery Practice, 7th Ed, Vol 1, pp. 549-552. Section 7V(1) of the Evidence Act 1905, which I have earlier set out, contains the modern representatives of these procedures, namely the issue of commissions, appointments of examiners and the issue of letters of request. Order 24, Rule 1, of the Rules of this Court, also does so by providing:
   
   

The Court may, for the purpose of proceedings in the Court, make orders -

(a) for the examination of any person on oath before a Judge or before such other person as the Court may appoint as examiner at any place whether in or out of Australia; or

(b) for the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.

One consequence of the Judicature system was to empower the Supreme Court of Judicature to provide for the taking of evidence abroad both on interrogatory and viva voce (Hume-Williams and Macklin, supra, pages 7-21).

1. It follows from the developments I have outlined that a result of the legislation which established this Court as a court of equity and a superior court of record with "Judicature" powers, was the bringing to the Court of powers of the kind expressed in Order 24 of the Rules of this Court. However, those powers do not, in my view, authorise an order of the kind sought by the applicant on this motion. The Chancery and Judicature system powers plainly were directed to the taking of evidence. As I have discussed earlier in these reasons, the order sought is of a different character.

2. I should refer briefly to the position with federal courts in the United States. Title 28 of the United States Code, entitled "Judiciary and Judicial Procedure" provides ( 2' 1783) what is in effect a subpoena duces tecum may be issued in the United States directed to a non-party who is a national or resident of the United States but who is in a foreign country, requiring production of specified documents before "a person or body" designated by the United States court. In other respects the position does not appear to differ from that pertaining to this Court: Moore's Federal Practice, 2nd Ed, Vol 4, 2' 28.09.

3. The application should be dismissed. The applicant should pay the respondent's costs of the motion.