Jusfrute Ltd v Bannerman, Ronald Moore

9 b

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IN THE FEDERAL COURT OF AUSTRALIA	)
NEW LOUTH WALES DISTRICT REGISTRY	) No. G204 of 1982

DIVISION

GEaERAL

BETWEEN:

JUSFRUTE

LIMITED

Appllcant ,

AND :

RONALD MOORE BANNERMAN

First Respondent

AND	-
TRADE PRACTICES COMMISSION

Second Respondent

AND

I	JOHN PRIMROSE

Third Respondent

ORDER

JUDGE

MAKING

ORDERS:

Franki

DATE

ORDERS:

12 April 1983

Sydney

MADE:

WHERE

THE COURT ORDERS THAT:

The notice of motion

of 8 March 1983 seeking further and

proper dlscovery is dismissed and the applicant is to pay

the costs of the respondents

of that motion.

The subpoenas to each

of the respondents dated

18 March

1983 are set aside and costs

of each respondent In its or

his notice of motion to set aside the subpoena to it or

him 1s to be paid by Jusfrute Limited.

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G204 of 1982

DIVISION

GENERAL

)

BETWEEN: JUSFRUTE LIMITED

Applicant

AND :

RONALD MOORE BANNERMAN

First Respondent

AND

TRADE PRACTICES COMMISSION

Second Respondent

-	AND
JOHN PRIMROSE

Third Respondent

12 April 1983

REASONS FOR JUDGMENT

FRANK1 J *

This judgment is delivered in a notice

of motion of

8 March 1983 filed by the applicant for "further and proper

discovery" and in notices of motion

of 18 March 1983 filed

by each of the respondents to have certain subpoenas set

aside.

The Chairman

of the Trade Practices Commission

issued a notice on or about 12 October 1982 under s.155 of the Trade Practices Act 1974 (the Act) requiring Jusfrute

b - -

Limited to answer certain questions and produce certain

documents.

Similar

notices

were

issued

four

other

companies namely Sunburst Foods Pty. Limited, Elmer Products having reason to believe that the applicant was capable of furnishing information and producing documents relating to

Pty. Limited, United Beverages Pty. Limited and Regency

matters that constitute, or may constitute, contravention by

producers of orange juice products in Australia

of ss.52(1),

53 (a) and 55 of the Act, required the company to whom the

notice was issued to furnish the information set out in out in Schedule 2 to the Notice. In an endeavour to have

the matter heard at an early date the Court adopted

timetable which commended itself to the parties.

Each of the five companies, including Jusfrute

Limited (hereinafter called "the applicant"), commended proceedings, which by amendment, were for a declaration

under S .163A of the Act against

Mr Ronald Moore Bannerman,

the Chairman

of the Trade Practices Commission (the

Commission) and against the Commission seeking to relieve the applicant from complying with the notice upon the following grounds:-

1. Section 155 of the Act is not

a valid law of the

Commonwealth.

2. Section 155 does

not empower a notice to

directed to

a corporation itself suspected of

contravention of the Act.

3 .

Section 155 does not oblige an addressee of

notice to answer questions or produce documents the

answers to which might tend to expose it to	a
penalty or forfeiture.

4. The notice purports

to require the discovery

confidential information the property	of the
applicant.

S.	The notice is oppressive and unreasonable.

On 14 February 1983 leave was granted to add John

Primrose, an employee of the Commission, as the third

respondent

and

leave was also granted to amend

the

application by adding a claim that the third respondent be restrained from copying, making, acting upon or making any

use of any information, materials, documents,

data or

reports concerning the affairs of the applicant obtained

confidence. The amendment also sought orders restraining

the first and second respondents from, inter alia, using any

information which the third respondent had obtained in

confidence. It also sought certain consequential orders for

delivery up, damages and costs.

consent order was made for discovery

and

inspection by all parties and on 25 February 1983 a list of

documents verified by the Crown Solicitor was filed by the

solicitor for the respondents. The schedule in the list set

out in Part 1 the various documents numbered 1 .l to 1 .l4

inclusive and in Part 2 four documents numbered 2.1

to 2.4

inclusive for which legal professional privilege was

claimed. The affidavit verifying was sworn on

24 February

1983 by Mr Mervyn Ian Searles, a member of

the

staff

assisting the Trade

Practices

Commission.

Further

affidavits were sworn on 15 March 1983 by the first and

third respondents in further verification

of the list of

documents. Correspondence took place between the solicitors

for the parties to which

I will refer later.

On 8 March 1983 a notice

of motion was filed by the

applicant seeking orders that the respondents give "further

and proper discovery". Similar applications

were made by

the other four companies and all five applications were

heard together by consent and it was agreed that my judgment

in the application by Jusfrute Limited should

be treated as

given in all five applications. On

10 December 1982 the

solicitor for the respondents answered an inquiry in

relation to the claim of confidence. On 18 March 1983 the

applicant caused a subpoena to be issued to each of the

respondents seeking the production of documents in a large

number of categories and

on the same day each respondent

filed a notice of motion to have the relevant subpoena set

aside. Counsel for the applicant conceded that

he sought to

have the subpoena answered in support of the notice

motion seeking further

and proper discovery. Similar

subpoenas were served and applications to set them aside

were made in the other four applications.

The correspondence

to which I have alluded was

mainly by telex between the solicitors for the applicant and

the solicitor for the respondents.

One issue presented

by the applicant depended upon

a claim for professional privilege for the documents in the

second part of the schedule to the list of documents.

was

submitted for the applicant that if any legal

professional privilege had existed in relation to any

these documents it had been waived in

telex from the

solicitor for the respondents dated 10 December 1982 which

contained the following paragraph:

"Advice in relation to your request was

received from Sydney senior

and junior

counsel this morning. Counsel's advice

is	that no confidentiality attaches to

the material provided to Mr Primrose. Mr

Primrose is a member

of the staff

assisting the T.P.C. and attended the

Council sub-Committee as an invited

observer in the course

of his duties as

member of the staff assisting the

T.P.C.

Whatever

obligations

confidentiality may exist between members

of the Council and its sub-committee no

such obligations as to confidentiality

exist in relation to a person attending as an invited observer as was Mr

Prlmrose.

Any

possible

confidentiality

that may exist in respect of Mr Primrose

or	the T.P.C., which is not conceded,

could only prevent Mr Primrose and the T.P.C. from disclosing material obtained

from the

N.H. and M.R.C. to the world and

to your clients'

competitors

particular. Any possible confidentiality

cannot prevent

the T.P.C. from using such

material for the purposes of its investigations under the Trade Practices Act. Further, the material discloses 'an

iniquity' so as to bring the material

within the principles enunciated

Sheppard J. in T.P.C.

v. Allied Mills

Industries Pty	Ltd and	Others (1981)
A.T.P.R. 40-204.''

In an endeavour to get the matter ready for an

early trial, by consent,

no party had sought

to have

pleadings in this matter. It was agreed that

I should treat

affidavits which had been filed in the application under

s.155 as the allegations of the parties in the Notices of Motion now before me.

The alleged breach

of confidence

arose in the following circumstances.

Mr Primrose, the third respondent, was an officer

of the Commission and

he had attended a meeting of the Food

Standards Committee working party on fruit juices

of the

National Health and Medical Research Council. Prior to the

meeting of this Committee on

3 and 4 June 1982, Mr Primrose

had received certain documents which it was alleged by the

applicant were communicated to him in confidence but as	n
officer of the Commission. Privilege was claimed by the

respondents for a documerlL described in the list of documents as "Minute from J. Primrose to P. Cronin dated 8 December 1982" and numbered 2 .l upon the ground that "the

document was prepared by

J. Primrose for the sole purpose of

being put before the Commission's legal advisers to obtain legal advice". The solicitors for the applicant alleged in a telex to the solicitor for the respondents on 3 March 1983

that it appeared likely that that minute was, at least in

part, for the purpose of informing Mr Primrose's superior

officer what had transpired and therefore it was not

privileged. Mr Alexander, a solicitor in the office of the

solicitor for the respondents, replied on 9 March 1983 that

he had requested Mr Primrose on

8 December 1982 to prepare

the minute so that he could advise the Commission and that

he	had forwarded the minute together with other relevant

papers for the advice of the senior and junior counsel	he
had briefed the next day.

Mr Sweeney, counsel for the applicant, referred to

the paragraph in the telex

10 December 1982, set out

above, and argued

that because the solicitor for the

respondents had disclosed the nature of the advice it had

received and had used

the expression "an iniquity" any legal

professIona1 privilege attaching

to the minute had been

waived. It is not entirely clear that the telex sets out	..
other than that counsel's advice was that no confidentiality

attaches to the material provided to

Primrose. It may

not be inappropriate to note that the courteous efforts of

the solicitor for the respondent to achieve an agreement in

relation to discovery have resulted in material being

provided rvhich has formed the basis of an attack on the

affidavits verifying the list of documents. Counsel for the

applicant could refer me to no authority in support

f his

submission that the telex of 10 December 1982 had waived any

privilege and

I reject that submission. Acceptance

of it

often could result in producing an extraordinary situation. than for obtaining legal advice from counsel. In my opinion

it is to be treated in accordance with the views

I expressed

in Brambles Holdings Limited

v. Trade Practices Commission,

(1981) 3 A.T.P.R. 40-221 at p.43,013, where

I said that I

was satisfied that legal professional privilege attaches to a draft or copies of a document which is itself entitled to that privilege, at least if the existence of the draft or

copy represents a reasonably necessary stage

in the

preparation of a document to which privilege attaches.

I pass now to the question of

a diary note of 9

December 1982

of a conversation between Mr Cronin, Assistant

Commissioner, and a Mr Jackson, who is apparently an officer

of the Commonwealth Department of Health and was the

Chairman of the Food Standards Committee. This diary note

was found after an enquiry by telex from the solicitors for

the applicant of 3 March 1983 and it reads

"Mr Jackson of

N.H.

and M.R.C. rang me concerning telex

he received from

Elmer and discussed the response to them".

A copy of this

note was provided with a statement expressing doubt whether

it was subject to discovery.

I consider that the request by

telex, made on 17 March 1983, to see the original is

technically correct if the document should

have been

discovered and it seems that the original will be made

available.

I pass next to

a document marked 1.3 in Part

1 of

the Schedule entitled "Extract from file note dated

26 May

1982 by M.I. Searles"

Here attention was directed to the

word "we" in that note and

request was made to the

solicitor for the respondents for "Your assurance that the

unreproduced portion

a document bears no reference or

relation to orange juice".

So far as I have been able to

understand the argument for the applicant, it includes a

submission that, in particular, because

of the reference to

"an

iniquity",

any

material

which

bears

upon

the

Commission's enquiries into matters relating to orange juice

(or indeed perhaps any fruit juice) ought to have been

discovered.

I cannot see any reason

why discovery should

extend to all documents merely because they relate to

enquiries by the Commission concerning orange juice	(or
other fruit juices).

I pass to a consideration of a document referred to

in Part 1 of the Schedule numbered

1.6 and described as an

"Extract from minute to Commission dated 16 June 1982".

am	not satisfied that anything which should have been

discovered was not discovered in relation to this document.

I pass next to a consideration of documents marked

1.7 and 1.9 in Part 1 of the Schedule being extracts from minutes to the Chairman of the Commission dated 18 August

1982 and 29 September 1982 respectively. I see no reason to

hold that anything further in relation to these documents,

which was not discovered, ought

to have been discovered.

I next pass to consider the request for the

discovery of certain files referred

to in paragraph

7 of the

telex of 3 March 1983. I can see no reason for declining

accept the statement by the solicitor for the respondent in

his telex of

9 March 1983 that these files contained no

documents relevant to any matter in question other than

those which were specified in the list

of documents.

In paragraph 8 of the telex

of 3 March 1983 a

request was made in relation to any correspondence with or

documents relating to communications with third parties.

Some

further

documents,

which

it was said

may be

discoverable, were provided in answer to this request, but

am	not satisfied that any further documents exist which

should be discovered.

. & . D

11.

On 17 March 1983 Che solicitors for the applicant sent a telex to the solicitor for the respondents making

request for further information and alleging that there musc

be further documents which ought to have been discovered. This request was only received in Canberra

on the Thursday

before this motion was to be heard by me in Sydney on the

following Monday. Indeed counsel for the applicant sought

to call Mr Alexander, a legal officer employed in the office

the

solicitor for the respondents, as his witness to

ascertain the answer to the questions posed in this telex.

I refused this request which

I regarded as extraordinary.

Mr Sweeney, when asked, could not refer me to any authority where a subpoena in support of an affidavit for further and better discovery had been required to be answered.

The applicant then sought to have Mr Primrose

answer the subpoena to which I have referred and which was

admitted to be only for the purpose of supporting the

application for further discovery.

A cardinal principle of

discovery is, of course, that it is very difficult to attack

the conclusiveness of an affidavit of discovery.

If this

were otherwise, it would be extremely difficult in many

instances for litigation not to be intolerably delayed by

proceedings which could only result in matters of extremely

marginal importance being considered.

At the end of his

reply counsel sought to call a Dr Chandler, to whom

I will

refer in my judgment in the notice of motion for further

amendment of the application.

I refused leave to re-open

and call D r Chandler.

I consider

that it is not

inappropriate to bear in mind the words

of Menzies J. in

Mulley v. Manifold (1959) 103 C.L.R. 341 at p.345, where his

Honour referred to the purpose

of discovery and noted that

it was not directed "towards assisting

a party upon a

fishing expedition".

See also W . A . Pines Pty. Ltd. v.

Bannerman (1980) 3 A.T.P.R. 40-163.

Notices of motion were taken out by the three

respondents seeking to set aside the subpoenas.

I refused

to allow the subpoenas to

be answered and I set them aside

and order that the applicant pay the costs of each of the

respondents.

Counsel for the applicant referred to certain other

aspects of the discovery which

he said had not been dealt

with by the respondents according to the rules.

The Court has power if it appears that there are

grounds for

a belief that some document or class

of document

relating to any matter in question in the proceeding may

be,

or may have been, in the possession, custody or power

of a

party to order that party to file

a further affidavit.

(Order 15 rule 8).

I regard this as a discretionary power.

(See Australian Broadcasting Commission	v. Parish (1981) 48
F.L.R. 292.)

In any event

I consider that no useful purpose

would

served by requiring any further affidavit.

Likewise I do not thmk any useful purpose would be served

by my dealing with

criticism made by counsel for the

respondents of the way the documents referred to in part

of Schedule

1 of the applicant's list

of documents failed

identify each document. (See generally William's "Supreme

Court Practice" 2nd Ed. pp. 1486-1487)

No	question arose of any possible application of

order 15 rule 3.

I dismiss the motion for "further

and proper

discovery" with

costs.

IN THE FEDEkAL COURT

OF AUSTRALIA 1

N E W SOUTH WALES DISTRICT REGISTRY 1

No. G203 of 1982

DIVISION

GENERAL

BETWEEN: SUNBURST FOODS PTY. LIMITED

Applicant

AND :

RONALD MOORE BANNERMAN

First Respondent

TRADE PRACTICES COMMISSION

Second Respondent

AND	-
JOHN PRIMROSE

Third Respondent

ORDER

JUDGE

MAKING

ORDERS:

Franki

DATE

OFRDERS:

12 April

1983

Sydney

MADE:

WHERE

THE COURT ORDERS THAT:

1.	The notice of motlon of 8 March 1983 seeklng further and

proper discovery is dismissed and the applicant

is o pay

the costs

of the respondents of that motlon.

The subpoenas to each of the respondents dated

18 March

1983 are set aside and costs

f each respondent in its or

his notice

of motion to set aslde the subpoena to it or

him is to be paid by Sunburst Foods Pty. Limlted.

I N THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )

No. G203 of

1982

GENERAL DIVISION

)

BETWEEN:

SUNBURST

FOODS

PTY.

LIMITED

A p p l x a n t

AND :

RONALD MOORE BANNERMAN

F i r s t Respondent

AND	-
TRADE PRACTICES COMMISSION

Second Respondent

AND	-
JOHN PRIMROSE

Third Respondent

1 2 Apr i l

1983

REASONS

FOR

JUDGMENT

FRANK1 J.

For t h e reasons set out i n my

judgment de l ivered

today i n a similar app l i ca t ion by Jusfrute Limited,

I dismiss

t he

notice

motion seeking further and proper discovery with

costs, set aside the subpoenas

t o each of the respondents

dated

18 March

1983 and order that the applicant

pay

t h e

costs of	the respondents '	notices of motion t o set as ide those
subpoenas.

. . . .

- .

<.>C

IN THE FEDERAL COURT

OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY

)

NO. G205 Of 1982

DIVISION

GENERAL

BETWEEN: ELMER PRODUCTS PTY. LIMITED

Applicant

AND :

RONALD MOORE BANNERMAN

First Respondent

TRADE PRACTICES COMMISSION

Second Respondent

JOHN PRIMROSE

Third Respondent

ORDER

JUDGE MAKING ORDERS:

Franki

DATE OF ORDERS:

12 April 1983

Sydney

MADE:

WHERF

THE COURT ORDERS THAT:

1.	The notice of motion of 8 March 1983 seeking further and proper discovery is dismissed and the applicant s to pay

the costs

of the respondents

of that motion.

The subpoenas

to each of the respondents dated

18 March

1983 are set aside and costs

of each respondent

in its or

his notice

of motion to set aside the subpoena to it or

him is to be paid by Elmer Products Pty. Limited.

--G r

I N THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

No. G205 of 1982

GENERAL DIVISION

BETTWEEN:

ELMER PRODUCTS PTP. LIMITED

Applicant

AND :

RONALD worn BANNERNAN

F i r s t Respondent

TIZADE PmCTICES C0N”SSION

Second

Respondent

AND

JOHN PRTMROSE

Third Respondent

12 April

1983

REASONS FOR JUDGMENT

FRANK1 J.

For the

reasons set out in my

judgment de l ivered

today i n a similar appl ica t ion by Jusf ru te Limited,

I dismiss

the

not ice

motion seeking further and proper discovery

w i t h

costs, set aside the subpoenas

t o each of the respondents

dated 18

March 1983 and order that

the appl icant pay the

costs of	the respondents ’ no t ices	of	motion	t o set a s i d e those
subpoenas.

I - . .

z.---n

IN THE FEDERAL COURT

OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY

)

No. G206 of L982

DIVISION

GENERAL

BETWEEN : UNITED BEVERAGES PTY. LIMITED

Applicant

AND :

RONALD MOORE BANNEREIAN

First Respondent

TRADE PRACTICE3

COPMSSION

Second Respondent

AND

JOHN 'PRIMROSE

Third Respondent

ORDER

JUDGE MAKING ORDERS: Franki

DATE

ORDERS:

12 April

1983

WHERE W E :

Sydney

THE COURT ORDERS

THAT:

1. The notice of motion of 8 March 1983 seeking further and

proper discovery is dismissed and the applicant

is to pay

the costs

of the respondents

of that motion.

The subpoenas to each of the respondents dated

18 March

1983 are set aside and costs

of each respondent

in its or

his notice of motion to set aside the subpoena

to it or

him is to be paid by United Beverages Pty. Limited.

c<->=.

I N THE FEDERAL COURT OF

AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	No.	G.206 of	1982
GENERAL DIVISION

BETWEEN :

UNITED BEVERAGES PTY. LIMITED

Applicant

AND :

RONALD MOORE BANNERMAN

F i r s t Respondent

AND

TRADE

PRACTICES

CONMISSION

Second Respondent

JOHN PRIMROSE

Third Respondent

1 2 April 1983

REASONS

FOR

JUDGMENT

FRANK1 J.

For the reasons

set ou t i n my

judgment de l ivered

today i n a similar application by Jusfrute Limited, I dismiss t h e notice 'of motion seeking fur ther and proper discovery with

costs, set aside the subpoenas

t o each of the respondents

dated 18 March

1983 and order tha t the appl icant

pay

t h e

costs of	the respondents ' no t ices	of	motion t o set as ide those
subpoenas.

I N THE FEDERAL COURT O F AUSTRALIA

NEW SOUTH	WALES	DISTRICT REGISTRY	)	No.G207 of 1982
GENERAL	D I V I S I O N	)

BETWEEN:

RFGENCY

FOODS

PTY.

LIMITED

Applicant

AND :

RONALD MOORE BANNERElAN

F i r s t Respondent

AND

TRADE PRACTICES

COMMISSION

Second Respondent

AND

JOHN PRIMROSE

Third Respondent

ORDER

JUDGE MAKING ORDERS:	Franki J.
DATE OF ORDERS:	12 April 1983
WHERE MADE:	Sydney
THE COURT ORDERS THAT:

The notice of motion of 8 March 1983

seeking

further

and

proper discovery

i s dismissed and the appl icant

is t o pay

t h e costs of the respondents

t h a t motion.

The subpoenas t o each of the

respondents

dated 18

March

1983 are set a s ide and costs of each respondent

i n its or

h i s notice of

motion

t o set a s i d e t h e

subpoena t o it or

him is t o be paid by

Regency Foods

Pty. Limited.

---Am c

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G207 of 1982

DIVISION

GENERAL

BETCJEEN:

EGENCY FOODS PTY. LIMITED

Appllcant

AND :

RONALD MOO= BANNERMAN

First Respondent

AND	-
TRADE PRACTICES COMMISSION

Second Respondent

AND	-
JOHN PRmOSE

Tinird Respondent

12 April 1983

REASONS FOR 5UDGMENT

For the reasons set out in my judgment delivered

today in a similar application by Jusfrute Limited,

I ismiss

the notice of motion seeking further and proper discovery with

costs, set aside the subpoenas to each

of the respondents

dated 18 March 1983 and order that the applicant pay the

costs of the respondents' notices

of motion to set aside those

subpoenas.

__. . _ _

.-.

- -----

_ _

[1983] FCA 56

12 Apr 1983