In The Application Of John Dee (Export) Pty Limited And Ors

[1988] ATPT 4

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NOT FOR CIRCULATION

COMMONWEALTH OF AUSTRALIA

TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES TRIBUNAL NO. NSW 5 of 1987

IN THE APPLICATION OF JOHN DEE

(EXPORT) PTY. LIMITED & ORS.

Applicants

ORDER MADE BY:	LOCKHART J. (President)
WHERE ORDER MADE:	SYDNEY
DATE OF ORDER:	1 SEPTEMBER 1988

MINUTE OF ORDER

THE TRIBUNAL ORDERS THAT:

1.   All summonses directed to the National Australia Bank Limited be stood over to a date to be determined next week. The costs of argument on the summonses be reserved

2. Production of the documents specified in para. 2(ii) of the summons directed to the Deputy Executive Director of the Stock and Station Agents Association of New South wales not be required.

3. Documents produced by the Deputy Executive Director of the Stock and Station Agents Association of New South Wales may be inspected by counsel and solicitors for the parties, and by the Trade Practices Commission without restriction to counsel and solicitors.

4. The summonses to the Victorian Stock Agents Association and the Deputy Executive Director of Stock and Station Agents Association of New South Wales be treated as extant and adjourned until a date to be fixed.

5. Production of documents other than those referred to in paras. (h), (n), (0) and (r) of the summonses directed to Savage Barker & Backhouse Pty. Limited; Dick Graham Livestock Trader; Geoff Webster Livestock and Property Agency; Argue & Company and Thomas Edward Knox not be required. The persons to whom the summonses are directed should use their best endeavours to comply with the summonses so far as paras. (h), (n), (0) and (r) are concerned in each case. Argue & Company should produce the matters described in the affidavit of Peter John Elliott Arthur sworn 1 September 1988 as the sales book.

6. The documents the subject of paras. h , n , (0) and

(r) of the summonses be produced as soon as possible,

and by Monday, 5 September 1988 if practicable.

7.     The question of costs as to all summonses be reserved.

NOT FOR CIRCULATION

COMMONWEALTH OF AUSTRALIA

TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES TRIBUNAL No. NSW 5 of 1987

IN THE APPLICATION OF JOHN DEE

(EXPORT) PTY. LIMITED & ORS.

Applicants

REASONS FOR DECISION

LOCKHART J. (President)

Two summonses have been issued in this matter on behalf of the Queensland Livestock Property and Produce Brokers Association ("QLPPBA") directed to officers of the National Australia Bank Limited at two branches. The bank moves to set aside the summonses on various grounds. I need only refer to two of those grounds because the others have been sufficiently discussed in argument.

The first ground is that the summonses were not served

as required by reg. 25 of the Trade Practices Regulations, in

that they were not served upon the persons to whom they were directed by a copy of the summons being delivered to the person personally and by showing the original of the summons to the person at the time when the copy was delivered to him. Plainly a number of the provisions of the Trade Practices Regulations, including this regulation, were made before methods of service consistent with the advance of modern technology had evolved. In the present case these two summonses were served by facsimile transmission. There is no suggestion that the summonses did not reach the officers or banks concerned. Of course, the method of sending documents by facsimile transmission means that a copy of the document sent arrives at the recipient's address, and it is quite inconsistent with that method of service that an original can be produced and shown to the person at the time of service.

The method of service of documents by facsimile, especially in a case like this involving as it does banks with far-flung branches throughout Australia, is obviously a sensible and practical method of service, and I must approach the construction of the Regulations with that in mind. At the same time one must bear in mind that the consequences of failure to comply with summonses to witnesses are penal, as appears from s. 160 of the Trade Practices Act 1974. In my view the method of service of summonses adopted in this case does answer the description of personal service upon the persons to whom they are directed in the sense of reg. 25(3)(a) of the Trade Practices Regulations. This method of service obviously does not answer the description of showing

the original of the summons to the person at the time at which the facsimile copy was delivered to that person for the purposes of reg. 25(3)(b). The method of service by facsimile transmission is a method that necessarily prevents reg. 25(3)(b) from applying, but nevertheless constitutes personal service for the purpose of reg. 25(3)(a). It follows, in my view, that reg. 25(3)(b) should be read as being otiose in respect of service by facsimile. In the result reg. 25(3) was complied with, so far as is presently relevant.

Alternatively, if reg. 25(3)(b) should have been complied with, and since that regulation plainly was not complied with, then in my view reg. 26(1A) will apply. That regulation provides that, subject to sub-s. 172(3) of the Trade Practices Act and subject to the Trade Practices Regulations, the failure by a person in or in relation to a proceeding or matter before the Tribunal to comply with a provision of the Regulations or with a direction of the Tribunal under the Regulations does not, unless the Tribunal otherwise directs, prevent the proceeding or matter being dealt with as if the person has complied with the provision or direction. On this basis, it would follow that the failure to comply with reg. 25(3)(b) does not, unless the Tribunal otherwise directs, prevent the proceeding or matter being dealt with as if the person serving the summons upon the bank or the bank officers concerned had complied with the requirement of reg. 25(3)(b). It also follows that, at least until the Tribunal considers whether a direction should be

made as to the failure to comply with reg. 25(3)(b) there could be no application of the penal provisions for non-compliance prescribed in s. 160 of the Trade Practices

- ~ c t . For those reasons I hold that the service of this

summons was good service.

Counsel for the bank also argues that the summonses should be set aside on the basis that they are oppressive, and relies on the affidavit of Katrina Maria Henty dated 1 September 1988 to establish this ground. In my view, that affidavit indicates clearly the inability of the bank to comply with the summons, at least to date or in the immediate future. However, in my view, the affidavait provides not so much material to justify the conclusion that the summons should be set aside as oppressive, but rather indicates that the Tribunal ought not insist on compliance with the summons until a reasonable time has elapsed after service. Service was effected only recently, namely late in the afternoon of 29 August.

I propose, therefore, to adjourn the summonses to a date that enables the bank a reasonable time in which to comply with the summonses. Accordingly, I stand all summonses directed to the National Australia Bank Limited over to next week to a date to be determined. I reserve the costs of argument on the summonses.

A summons to the Deputy Executive Director of the Stock

and Station Agents Association of New South Wales has also

been issued on behalf of John Dee (Export) Pty. Ltd. Counsel appearing for the Stock and Station Agents Association objects to the production of all documents on the basis that they are confidential. Counsel also objects to the production of the documents specified in para. 2(ii) of the summons being all files kept by the Association in respect of livestock buyers, on the ground that it would be oppressive to be required to produce them. Counsel relies on the affidavit of Angus Cleveland Kennedy of 5 August 1988 in support of his submission.

I am satisfied that the production of the lastmentioned documents would at this stage be oppressive. I should indicate as a general rule in this matter that, where large numbers of documents are sought to be produced and can be produced except for the oppressive burden of collating them and producing them, I would not look unfavourably on some random sampling process that might be adopted for the purpose of enabling some measure of access to be given to such documents by the parties seeking their production.

The other documents that have been produced by the Stock and Station Agents Association of New South Wales may be inspected, at this stage, by counsel and solicitors for the parties, and by the Trade Practices Commission without restriction to counsel and solicitors. The summonses to the Victorian Stock Agents Association and the Deputy Executive Director of the Stock and Station Agents Association of New South Wales will be treated as extant and adjourned until a date to be fixed.

Summonses have also been issued directed to Savage Barker and Backhouse Pty. Limited; Dick Graham Livestock Trader; Geoff Webster Livestock and Property Agency; Argue & Company; and Thomas Edward Knox. Counsel appears for each of the persons summonsed and seeks to set aside the summonses in whole on the ground that they are too wide, are oppressive and constitute an exercise sometimes described in this area of the law as a "fishing expedition". I leave aside for the moment the summons directed to Argue & Company. It was agreed I should deal with the other summonses together as they are in the same or substantially the same form. Save for paragraphs (h), (n), (0) and (r), in my opinion those summonses are too general and too wide in their scope, and require judgments to be formed by the persons to whom they are directed as to the characterisation of documents. Rather than set the summonses aside in part, the sensible course is simply to indicate that production of documents referred to in the summonses other than in paras. (h), (n), (0) and (r) is not required by the Tribunal.

So far as those paragraphs are concerned, although it is true that certain of them are fairly wide and general, the persons to whom the summonses are directed should use their best endeavours to comply with the summonses so far as paragraphs (h), (n), (0) and (r) are concerned in each case.

I express the same views so far as the summons

directed to Argue & Company. Having regard to the contents

of the affidavit of Peter John Elliott Arthur sworn 1 September 1988, Argue & Company should in addition produce the matters described in that affidavit as the sales book.

The documents subject to those paragraphs of the summonses should be produced as soon as possible, and on Monday of next week if practicable.

The question of costs as to all summonses is reserved.

I certify that this and the preceding six

( 6 ) pages are a true copy of the reasons fordecision herein of the Honourable Mr. Justice Lockhart.

Associate P.W/

Date: 1 September 1988

Counsel for John Dee (Exports)	Mr. C.A. Sweeney Q.C. with
Pty. Limited:	Mr. M. Cashion

Solicitors for John Dee (Exports) Messrs. Allen Allen & Hemsley

~ t y . Limited

Counsel for Elders IXL Limited,

Dalgety Farmers Limited and ~ r . R. Conti Q.C. with

Primac Association Limited:	Mr. N. Cotman
Solicitors for Elders IXL Limited,
Dalgety Farmers Limited and	Messrs. Sly & Russell
Primac Association Limited:
Solicitors for the National	Nessrs. Nallesons Stephen
~ustralia Bank:	Jaques
Solicitors for the New South Wales Stock & Station Agents ~ssociation:	Messrs. Madgwicks
Solicitors for the Victorian
stock Agents Association:	Nessrs. Blake Dawson Waldron.
Date of Hearing:	1 September '1988
Date of Decision:	1 September 1988