Rochfort, Peter v Trade Practices Commission

[1981] FCA 187

Re: PETER ROCHFORT, T.N.T. MANAGEMENT PTY. LIMITED, ANSETT TRANSPORT
INDUSTRIES (OPERATIONS) PTY. LIMITED and ASSOCIATED STEAMSHIPS PTY. LIMITED
And: TRADE PRACTICES COMMISSION (1981) 53 FLR 364
Nos. G 141 and 143 of 1981
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Smithers(1), Sheppard(2) and Ellicott(3) JJ.

CATCHWORDS

Practice and Procedure - subpoena to produce documents served on Executive Director of unincorporated association to produce documents of that association - Director not an employee of that association but an employee of another unincorporated association of which first association a constituent member - second association obliged to provide secretarial and other services for first association - Executive Director employed by it, inter alia, to provide those services - whether Executive Director had sufficient custody and control of documents to oblige him to produce documents.

Practice - Subpoena duces tecum to produce documents - Served on person to produce documents of unincorporated association - Person not employee of association but executive director of another association of which first association was constituent member - Second association obliged to provide secretarial services for first association - Whether person obliged to produce documents.

HEADNOTE

In proceedings brought by the Trade Practices Commission against a number of defendants alleging breaches of s. 45 of the Trade Practices Act 1974 a subpoena duces tecum was served on the first appellant, the executive director of the A.R.T.F., an unincorporated association, to produce documents of the N.F.F.A., also an unincorporated association and a constituent member of the A.R.T.F. which was obliged to provide secretarial services for it. The duties of the first appellant included being the executive director of and conducting the secretarial affairs of the N.F.F.A. The documents in question had been taken by the first appellant to the chambers of his counsel. At first instance the first appellant contended both that the relevant documents were not in his personal possession and that he had no authority to produce the documents. Bowen C.J. ordered the first appellant to produce the documents.

On appeal,

Held: Per curiam. (1) The first appellant was an employee of the A.R.T.F. and not of the N.F.F.A. (2) The first appellant's possession of the relevant documents, as a person under a duty to deal with them in the interest of the N.F.F.A., was full and unqualified. The first appellant had sufficient custody and possession of the documents to make him a person who could be compelled to produce them. It was doubtful whether any other person or group of persons had that degree of control.

Eccles & Co. v. Louisville and Nashville Railroad Company, (1912) 1 KB 135, discussed.

(3) Per Smithers and Sheppard JJ. There was no evidence that by complying with the subpoena the first appellant would have acted in violation of his duty to his master.

James v. Cowan; Re Botten (1929), 42 CLR 305, applied.

(4) Appeal dismissed.

HEARING

Sydney, 1981, October 16, 19; November 4. #DATE 4:11:1981

APPEAL.

Appeal from a judgment of Bowen C.J. ordering the first appellant to produce documents in accordance with a subpoena duces tecum.

A.B. Shand Q.C. and H. Shore, for the first appellant.

L.J. Priestly Q.C. and J. Timbs, for the respondent.

Cur. adv. vult.

Solicitors for the first appellant: Stephen Jaques & Stephen.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.

T.J. GINNANE

ORDER

The appeals be dismissed with costs. Orders accordingly.

JUDGE1

The appellants appeal from that part of a judgment of the Chief Judge given on 2 October 1981 whereby the first appellant was ordered to produce documents in answer to a subpoena duces teum served upon him and relating to such documents.

Giving evidence before the Chief Judge the first appellant stated that the documents in question were not and had never been in his personal possession. He said that they were in the possession of an unincorporated association called National Freight Forwarding Association (N.F.F.A.). He said that he did not claim "any personal right to possession of the documents as distinct from on behalf of my employers". He added that he had no authority to produce the documents to the Court. It appeared that at the time the first appellant gave this evidence the documents were in the chambers of his counsel where they had been taken by him on his own initiative. The immediate physical custody and control of the documents were thus in the first appellant at that time.

The circumstances in which the first appellant acquired such custody and control of the documents were as follows. In March 1979 the Australian Road Transport Federation (A.R.T.F.) an unincorporated association consisting of elevent constituent associations including N.F.F.A., or the Council of A.R.T.F., engaged the first appellant as its Executive Director. On his appointment his duties were set forth in a written statement. According to that statement his duties included the management of the office and staff of A.R.T.F. and "part of the statement" provided that the first appellant was "to conduct the secretarial affairs of a company and two associations within the A.R.T.F." One of those associations was N.F.F.A. He was remunerated as Executive Director, no particular part of his remuneration being specified as referable to the conduct of secretarial affairs of the company or the associations. That the first appellant's duties included the conduct of secretarial affairs of N.F.F.A. reflected an agreement between A.R.T.F. and N.F.F.A. to the effect that N.F.F.A. paying an annual fee for the supply of secretarial services to it, A.R.T.F. would supply them. In the actual conduct of secretarial affairs for N.F.F.A. the first appellant performed such tasks as preparing agendas, attending meetings, taking minutes, dissemination of minutes, participation in industrial relations matters on behalf of N.F.F.A., assisting to compile an industry submission to the Transport Advisory Council, preparation of a submission to a Commonwealth Government enquiry on the representation of owner drivers and a submission to the Trade Practices Commission, the preparation of a set of account books and annual balance sheets for adoption by N.F.F.A., the payment of accounts and counter signing of cheques. The documents of N.F.F.A. some of which the first appellant found in existence when he took office, and those which came into existence thereafter, were, when not in use, kept in a filing cabinet in the office of A.R.T.F. The documents the subject of the subpoena in question in this case were, when not in use, kept in that filing cabinet.

In the performance of his secretarial duties the first appellant worked in association with the president of N.F.F.A. and on occasion complied with directions or requests of the president. There is no suggestion that in performing his duties he was subjected to any control or supervision by A.R.T.F. or the Council thereof. Having regard to the nature of the function the first appellant was required to perform, such supervision would not have been appropriate and would appear not to have been contemplated. As mentioned above when the documents in question were required for the purpose of the subpoena the first appellant took them from the filing cabinet on his own initiative and delivered them to his solicitor. It appears also that on being asked by a representative of the Trade Practices Commission to produce the documents for inspection and copying, in December 1980, he did so, again on his own initiative.

It is of importance that all the documents affected by the subpoena at all times belonged to N.F.F.A. The situation therefore is that the first appellant was employed by the Council of A.R.T.F. to conduct the secretarial affairs of N.F.F.A. In conducting these secretarial affairs the duties performed by him were duties in respect of which he was a servant of A.R.T.F. or its council. And it is to be noted that at no time could he be considered as a servant of N.F.F.A. There is a sense therefore in which when he acquired "possession" of documents or other property of N.F.F.A. he did so as a servant of A.R.T.F. or its Council.

Against this background Mr. Shand, who appeared for the first appellant submitted that the first appellant, in his employment as Executive Director of A.R.T.F. and in the performance of his work in conducting secretarial affairs of N.F.F.A. acted at all times in the capacity of servant of A.R.T.F. It followed, so it was argued, that his "possession" of the documents, the subject of the subpoena, was the possession of his master, namely A.R.T.F., or the Council of A.R.T.F. In that case there being no evidence of the consent of the Council or of A.R.T.F., the Court should not require the appellant to produce the documents. Eccles & Co. v. Louisville and Nashville Railroad Company (1912) 1 K.B. 135 was relied upon as being directly in point. In that case the Court refused to enforce compliance with a subpoena by a servant in circumstances described by Vaughan Williams L.J. at p. 145 as follows:-

"This is the case of a servant or employee who, according to the view which I take of the evidence, had no authority from his master to produce the documents in question; and upon the evidence before us I also take it that, although he had in a sense possession, custody, and control of the documents, he had not possession, custody, or control of them in the sense that he was justified, as between himself and his master, in shewing them or producing them in evidence without the authority of the master."

He referred also, in particular, to Amey v. Long (1801) 1 Campbell 14, Amey v. Long (1808) 9 East 473, A.G. v. Wilson (1839) 9 Simons 576, Lee v. Angas (1866) L.R. 2 Eq Cas 59, Crowther v. Appleby (1873) L.R. 9 C.P.23, Penn-Texas Corporation v. Murat Anstalt (1964) 2 Q.B. 647, Lord Falmouth v. Moss 11 Price 455, Watson v. Johnson Ltd. (1936) 55 C.L.R. 63, Forbes v. Samuel (1913) 3 K.B. 706.

On the other hand Mr. Priestly for the respondent contended that to solve the current problem it is necessary to distinguish between the "possession" of documents that a servant has when, having the right merely of access thereto on his master's premises for the purposes of his employment, he handles and uses the documents for those purposes, and the possession that servant would have if he had taken the documents to his home and exercised what might be called dominion over them there. It was conceded by Mr. Priestly that where the relationship of a servant to his master's documents was merely that of access he does not have that quality of possession, custody or power which would enable or oblige him to comply with a subpoena duces tecum served upon him in respect thereof unless authorised to do so. He argued, however, that if with respect to those documents over which the servant has dominion, albeit temporary, he then has exclusive possession thereof and is obliged to obey a subpoena duces tecum served upon him while he so had the documents. It was Mr. Priestly's submission that the duty to comply with such a subpoena depends upon whether it can be said of the servant in a practical sense, that he "has" the documents. He recognised that there were authorities which tended to conflict with this submission but contended that upon analysis it appears that in those cases in which a servant said to be in possession of documents was relieved from compliance with a subpoena his relationship to the relevant documents was in the category rather of a mere right of access than of possession. Reference was made to those cases mentioned above together with James v. Cowan Re Botten (1939) 42 C.L.R. 305.

While the analysis of the factual circumstances of the relevant cases reveals support for Mr. Priestley's proposition it nevertheless remains true that in the expressed reasons for decisions in those cases there is little direct indication that the distinction between "possession" by access and possession by dominion was regarded as critical. It is clear however, that in a case where a servant who is served with a subpoena duces tecum applicable to his master's documents and the master consents to his producing them he is obliged to comply with the subpoena.

It is no doubt true that in a case where a servant has some degree of possession or control of documents the subject of a subpoena served upon him, it is necessary to examine the terms and conditions upon which he holds them. As Kennedy L.J. pointed out, although in his dissenting judgment, in Eccles & Co. v. Louisville and Nashville Railroad Company (supra) at p. 149:-

"One knows very well, as a matter of business, - and one is entitled to avail oneself of one's knowledge of life and business - that there are various degrees of control which clerks in a mercantile office may have, and that in the case of a salaried principal clerk, such as the appellant was, the degree of control and independent action entrusted to him may often be very large. I therefore think that the counsel for the plaintiffs were right in suggesting that the word 'servant' used in this connection is a very equivocal one, and may be very misleading in such a case. It may cover various grades of confidence and discretionary power. The question in such a case is whether the matter is one in which the servant is bound to act only when he gets express orders from his employer."

The question is what was the relationship between A.R.T.F. or its Council and the first appellant with respect to the possession, control, custody and disposition of the documents of N.F.F.A. That depends upon the terms of the agreement they made. Those terms are to be ascertained by inference from the conversations and documents constituting the agreement and all the circumstances of his employment. Relevant factors are that it was part of the duty of the first appellant pursuant to his instructions from the Council of A.R.T.F. personally to conduct the secretarial affairs of N.F.F.A. It was to be implied that he would serve N.F.F.A. fully and faithfully and conduct himself towards N.F.F.A. as a person conducting those affairs for N.F.F.A. would if engaged to do so by N.F.F.A. itself. It was likely in the performance of those affairs that property of N.F.F.A. would come into his hands and inevitable that documents of N.F.F.A. would come into his hands. And it should be emphasised that A.R.T.F. had no interest in those documents.

It was critical to the first appellant's employment that he personally was designated as the person actually to perform the functions to be carried out for N.F.F.A., that those functions were of such a nature as to require for their proper performance a degree of commitment to the affairs and objectives of N.F.F.A. and, so far at least as concerned documents and other property of N.F.F.A. which might come to his hands, a degree of personal and legal responsibility to N.F.F.A. To perform his functions fully, and undertake his responsibility, possession of such documents and property was an appropriate attribute and reasonably to be inferred. With respect to such documents and property it was clearly the personal duty of the appellant, certainly during the continuance of his employment with A.R.T.F., to hold it and them in his possession for and on behalf of N.F.F.A. The resulting limitation of A.R.T.F.'s control of the documents in the hands of its servant is not to be regarded as in conflict with the first appellant's status of servant of A.R.T.F. On the contrary, it was an incident of the role which A.R.T.F. had employed him to play. It was A.R.T.F. who had employed him to hold such property and documents for the entity to which it had undertaken to supply secretarial services. It was not surprising that the A.R.T.F. should make an agreement containing this limitation with respect to documents in which it had no interest.

Although the first appellant was at all times responsible to A.R.T.F. for the proper performance of his functions in the conduct of the secretarial affairs of N.F.F.A., actual control and supervision by A.R.T.F. of such performance was not compatible with the nature thereof. It is to be noted that so far as concerns supervision, A.R.T.F. had no staff member senior to the first appellant.

Accordingly, the authority which A.R.T.F. would have had as to the disposition of the documents, had the first appellant held them merely as servant, and on terms usually implied in an agreement for engagement of a person as a servant, was absent. The possession which the first appellant had acquired as a person under duty to deal with the documents in the interests of N.F.F.A. was necessarily possession full and unqualified. N.F.F.A. was not his master although he had duties towards it in respect of those documents. It was therefore not a justification for the first appellant's refusal to produce the documents that A.R.T.F. or the Council thereof had not authorised him to do so. The question whether he had authority from N.F.F.A. was irrelevant because he was not the servant of N.F.F.A.

When the learned Chief Judge said "true it is that Mr. Rochfort is a servant but the owner of the documents is not his master" the implication was that the relevant duty of Mr. Rochfort was not to A.R.T.F. but to N.F.F.A. as owner of the documents. As the learned Chief Judge had found that there was no relationship of master and servant between the first appellant and N.F.F.A. the passage quoted drew attention to the fact that so far as production of the documents was concerned the first appellant was not constrained by the attitude of either A.R.T.F. or N.F.F.A.

Mr. Shand challenged the finding of the learned Chief Judge that the first appellant was not the servant of N.F.F.A. He referred to the constitution of A.R.T.F. which provides that N.F.F.A. is a member thereof. It is true also that at least eight other unincorporated societies and probably two incorporated associations are members. The contention was that all members of A.R.T.F. were the parties with whom the first appellant's contract of employment was made. As all the various members of N.F.F.A. are members of A.R.T.F. it would follow that a contract with A.R.T.F. was a contract with all the members of its constituent unincorporated associations and other members. However, Clause 17 of the constitution provides that the management of the affairs of the Federation shall be vested in a Council consisting of the President and until otherwise decided by the Federation in General Meeting, one representative from each constituent member association, who shall not be a paid employee thereof.

There is no evidence as to the identity of the actual persons who comprised the Council when the first appellant was engaged. Clause 23 provides that the Council may appoint such staff of the Federation as may be deemed necessary.

In these circumstances the principles applied in Bradley Egg Farm Ltd. v. Clifford (1943) 2 A11. E.R. 378, considered in Peckham v. Moore & Ors. (1975) 1 N.S.W.L.R. 353 are in point. In relation to the kind of situation now under consideration the remarks of Scott L.J., in the former case, with which Goddard L.J. agreed, are in point. He said:-

"That the plaintiffs intended to make a real contract with somebody is beyond doubt; but it is equally beyond doubt that they had never formed any intention in their own minds beyond the vague one of making a contract with the person or persons the law would hold responsible on the contract. . . .

In these circumstances, what is the function of the law? Surely it is to imply an intention on the plaintiffs' part to make their contract with the person or persons to whom alone in the circumstances of the case the law regards as the persons responsible. That cannot be the society, for it does not exist. The law, therefore, has to choose from the various persons associated together under the umbrella of the society's name, those most concerned in the function of making contracts, those of the associated persons who were most directly concerned, and to discard those who were, for any reason, least directly concerned, and to discard those who were, for any reason, least directly concerned. In the latter category stand the mere members who, under the society's rules, have no liability beyond their annual 7s.6d. membership subscription, and have no right to participate, now or on winding up, in the funds of the society. But the body of members want to see the purposes of the society implemented, almost in the same way as in the case of a charity (in the popular sense); and they appoint an executive council to carry out those purposes. Making a contract, whether for employment of servants, for purchasing of office furniture, for keeping a bank account, or for carrying out tests to assist the branch of farming which produces utility poultry, is essentially a function which cannot be performed without somebody accepting personal responsibility to perform the contract and pay money; and the business men who accept the office of being on the executive council, seem to me to be the persons whom the law must regard as pledging their own credit in order to perform the duties which they voluntarily undertake for their so-called 'society'; just as do the committee men of a club."

Having regard to the above the notion that the agreement of March 1979 was an agreement between the first appellant and all the members of A.R.T.F. cannot be supported.

It was also put that his Honour having found that the applicant had no relevant possession of the documents as the servant of A.R.T.F. it followed that he had relevant possession as the servant of N.F.F.A. But it is impossible to support the view that the first appellant was the servant of N.F.F.A. N.F.F.A. had no agreement at all with the first appellant. Its agreement was with A.R.T.F. and under that agreement A.R.T.F. agreed to supply the secretarial services to N.F.F.A. That agreement resembled an agreement between an accountancy firm and a client that the firm would supply an accountancy service to the client for ordinary accountancy fees. The clerk of the firm attending the client's office to do the work would do it as servant of the firm but it would not be suggested that he entered into a master and servant relationship with the client. But for the particular features of the agreement between the A.R.T.F. and the first appellant discussed above, that would be the simple position of the first appellant in relation to the services he rendered and any documents of the client which he handled or held in the course of rendering the relevant services. But the fact that the agreement did have particular features by reference to which, as between himself and A.R.T.F. the documents of N.F.F.A. held by him were in his possession and not that of A.R.T.F. could not create a relationship of master and servant between him and N.F.F.A. Having regard to the above this Court could not disturb the finding of the learned Chief Judge. There is every reason to think that it should be affirmed.

In addition, it is my opinion, that even if it had not appeared from the relationship of the first appellant to A.R.T.F. on the one hand and to N.F.F.A. on the other, as established on the evidence, that the first appellant had possession, custody and control, in the relevant sense, of the documents in question, the appeal should nevertheless be dismissed on the ground that there was no evidence that by complying with the subpoena the first appellant would have acted in violation of his duty to his master. I have had the advantage of reading the reasons for judgment in this matter of Sheppard J. in which, reassured by the decision of the High Court in James v. Cowen; Re Botten (1939) 42 C.L.R. 405, he expresses the view that the respondent is entitled to succeed because it would be correct to approach the problem in accordance with the observations of Kennedy L.J. in his dissenting judgment in Eccles & Co. v. Louisville and Nashville Railroad Co. (supra). I am in full agreement with the view so expressed by my brother Sheppard.

Accordingly, I would dismiss the appeal with costs.

JUDGE2

These are appeals from a judgment of the Chief Judge in which his Honour refused to uphold a submission that the personal appellant, Mr. Rochfort, was not obliged to produce certain documents pursuant to the requirements of a subpoena with which he had been served. His Honour directed that the documents be produced on 2 October last. That requirement has not been insisted upon because of the institution of these appeals.

The subpoena was issued in proceedings brought by the Trade Practices Commission against a number of defendants alleging breaches by them of s.45 of the Trade Practices Act 1974. The corporate appellants are some of those defendants. Each such appellant is a member of an unincorporated association known as The National Freight Forwarders' Association ("the N.F.F.A."). There is another voluntary association known as The Australian Road Transport Federation ("the A.R.T.F."). Its members consist of a number of organisations one of which is the N.F.F.A.

His Honour found that Mr. Rochfort had been engaged by the A.R.T.F. as its Executive Director. Mr. Rochfort had replaced a Mr. Levitt who had formerly held the position. Mr. Rochfort's wages are paid by the A.R.T.F. and he is in charge of its office and other staff.

Further findings made by his Honour were as follows:-

"5. The office of the A.R.T.F. is in Suite 3 on the Seventh Floor of Erskine House, 39-41 York Street, Sydney. A lease of the premises was granted by the Australian Mutual Provident Society (lessor) to Walter Ashley Levitt and Roy Edward Heasman (trustees of A.R.T.F.) (lessee) for the term extending from 1 August 1977 to 31 July 1980; and a further lease was granted by the same lessor to Eric Barry Williams and Gerald Crofton Uniacke (trustees of A.R.T.F.) (lessee) for the term extending from 1 August 1980 to 31 July 1982.

"6. The A.R.T.F. employs and pays two male and five female employees who work at those premises. Mr. Rochfort is the senior employee of the A.R.T.F. at the premises.
. . . . . . . . .

8. N.F.F.A. leases no premises and employs no staff.

9. As a constituent member of the A.R.T.F., N.F.F.A. pays to the A.R.T.F. an annual subscription of about 27% of A.R.T.F.'s annual budget and in addition a secretarial fee.

10. When Mr. Rochfort was engaged by A.R.T.F. part of his statement of duties was to conduct the secretarial affairs of a company and two associations within A.R.T.F. The two associations referred to were the N.F.F.A. and the National Furniture Removers' Association. The secretarial fee paid by N.F.F.A. to A.R.T.F. was paid in respect of those secretarial duties.

11. The duties performed by Mr. Rochfort in relation to N.F.F.A. included preparation of the agenda for meetings, sending out of notices, the keeping of minutes and the dissemination of those minutes. He held the title of Executive Director of the N.F.F.A. and took instructions regarding the calling of meetings and the contents of the agenda from the President for the time being of the N.F.F.A. Although there seems to have been little expenditure by the N.F.F.A. it had a bank account and Mr. Rochfort counter-signed its cheques.

12. Mr. Rochfort took over what documents there were relating to N.F.F.A. from the time of his predecessor Mr. Levitt and also had custody of the documents prepared during the period he himself was performing duties in relation to N.F.F.A. He needed these documents to perform his duties.
. . . . . . . . .

14. Mr. Rochfort has neither sought nor obtained any authority to produce to the Court the documents mentioned in the subpoena either from A.R.T.F. or N.F.F.A."

When the matter was before the Chief Judge, the documents in question were not in court but were said by Mr. Rochfort to be nearby in counsel's chambers. They were available to be produced if the Court declined to accept the submission relied upon.

In the submission of the appellant both before his Honour and before us Mr. Rochfort could not be compelled to produce the documents because they were not, in what was said to be the relevant sense, in his possession, custody or control. Whilst he had access to them and could, as he did, physically remove them from the office in which they were, he did not himself have custody or control over them. That custody and control was in the N.F.F.A., that is in the control of its members or perhaps its executive. In that respect it is to be observed that the Rules of the N.F.F.A. provide in clause 8 that the management of the affairs of the Association is to be vested in an Executive which may exercise all such powers and do all such acts as the Association is authorised to exercise and are not directed or required to be exercised or done in general meeting. Similar powers are to be found in the constitution of the A.R.T.F. It is to be managed by a council consisting of its president and one representative from each of its constituent organisations. It is the council which is expressly conferred with power to manage the affairs of the Federation including, inter alia, power to engage staff.

In support of their submissions the appellants relied upon the decision of the Court of Appeal in England in Eccles & Co. v. Louisville & Nashville Railroad Company (1912) 1 K.B. 135 which was said to be authority for the proposition that a servant could not in his personal capacity be subpoenaed to produce documents of his employer. His Honour upheld that view of the decision, but said that it was limited to cases where an employee was personally subpoenaed to produce documents which were in reality in the possession, control and custody of his master. He said that he was not prepared to extend the principle to a case where the person subpoenaed had physical control over the documents and was not an employee of the person whose documents they were. Upon the findings he had made, Mr. Rochfort was not an employee of the N.F.F.A. or its executive; he was the employee of the A.R.T.F. or its executive. The principles in Eccles' case therefore had no application.

In the submission of the appellants his Honour's decision was erroneous because Mr. Rochfort, although not an employee of the N.F.F.A., was an employee of the A.R.T.F. He did not have the documents in his personal possession or power. He was to be likened, if not to an employee of a person who was entitled to possession of the documents, then to employee of an agent who held the documents for his principal. In such a case, although the agent might be subpoenaed, e.g. a bank holding documents for safe custody, Rex v. Daye (1908) 2 K.B. 333, it is inappropriate to subpoena an employee of the agent, e.g. a solicitor's clerk.

In my opinion the answer to that submission lies in the particular facts of this case. The documents were under the actual control and in the possession of Mr. Rochfort not in his capacity as Executive Director of the A.R.T.F. by whose members or council he was employed, but in his capacity as the person appointed or designated by the A.R.T.F. to become the Executive Director of and provide the secretarial services for the N.F.F.A., matters for which the A.R.T.F. was responsible to the N.F.F.A. in return for which the A.R.T.F. received the secretarial fee earlier mentioned. In this sense the A.R.T.F. may be likened to an independent contractor providing services for another but it would, in my opinion, be wrong to treat it as being in the same position as the bank in Rex v. Daye (supra). Mr. Rochfort, having been appointed to carry out the secretarial services with the apparent knowledge and approval of the N.F.F.A., it is my opinion that he himself has a sufficient custody and possession of the documents to make him a person who may be compelled to produce them. Indeed, I think it is doubtful whether any other person or group of persons had that degree of control. I say that particularly because of the amorphous membership of the constituent members making up the membership of the A.R.T.F. Except in two cases those organisations are not incorporated. It is well known that two of the organisations, the Master Carriers Association of New South Wales and the Long Distance Road Transport Association of Australia, have very large memberships including numerous members who are individuals owning the vehicles which they drive. It would be ludicrous to suggest that the documents were in the joint possession and control of each of the persons making up the membership of the constituent organisations.

It could be suggested that the possession and control was vested in the members of the council of the A.R.T.F. But the council's obligation was to provide secretarial services, not to carry them out. Mr. Rochfort was selected to discharge the council's obligation; he was designated for this purpose. He is not an employee of the N.F.F.A. nor does he discharge duties in relation to the N.F.F.A. as an employee of the A.R.T.F. or its council. They do not have possession or control of any of the documents. Thus Mr. Rochfort has no possession and control over the documents in his capacity as an employee of anyone.

That is enough to conclude the argument against the appellants. But in my opinion there is another basis upon which the respondent is entitled to succeed. In his dissenting judgment in the Eccles case Kennedy L.J. said that while the law clearly is that a servant who is told by his master not to produce documents belonging to him has an excuse for non-production which the Court will accept, not only is there no authority for saying that the mere statement by a person required to produce documents that he has the possession of them as a servant has ever been held sufficient to justify a refusal to produce them, there is no authority for the proposition that it is always the implied duty of a person who says that he has possession of documents merely as a servant to dispute the order of the court in such a case for their production (pp.152-153). The majority expressed a different view. In those circumstances, although the view of Kennedy L.J. accords with my own, I would have had some hesitation in following it were it not for the decision of the High Court in James v. Cowan; in re Botten (1929) 42 C.L.R. 305. I do not refer to the facts of that case. It is enough to say that Eccles case was referred to in argument before the Full Court which consisted of Knox C.J. and Gavan Duffy, Rich and Dixon JJ. In the judgment of the Court it was said (p.310), after referring to what had transpired before Starke J. at first instance, that the employer Board had not forbidden the witness to bring the documents into court, that the order to bring the books into court as directed by the subpoena was made by a competent court and that a refusal to obey that order was a defiance of the authority of the court and therefore a contempt. In the light of the fact that the Court had referred to it Eccles' case, I would take what was said as an indication that the view of Kennedy L.J. was preferred. In this case Mr. Rochfort did not seek instructions from either the N.F.F.A. or the A.R.T.F. There is no evidence of what the attitude of either body is to the subpoena. The fact that three of the members of the N.F.F.A. are appellants before us is no indication of any such attitude. The N.F.F.A. of whom the corporate appellants are members may act by a majority decision (clause 7 of its Rules). That circumstance indeed tends to point up the great difficulty that there is in claiming that the documents may only be produced upon a subpoena directed to all the members of the Association. Importantly, the fact that Mr. Rochfort has not sought instructions with the result that there is no evidence of the attitude of the N.F.F.A. or its members means, in my opinion, that the appellants should fail on that ground also.

JUDGE3

The facts relevant to these appeals and the circumstances in which the appeals come before the court are set out in the reasons for judgment of Smithers J. and Sheppard J. and except to point to certain basic findings of fact, I have no need to repeat them.

I agree that these appeals should be dismissed with costs.

The Chief Judge found that the appellant Peter Rochfort (hereinafter referred to as the appellant) is an employee of the Australian Road Transport Federation (ARTF) and not an employee of the National Freight Forwarders Association (NFFA). In my opinion, this was the correct conclusion for his Honour to reach on the evidence before him.

His Honour also found that when the appellant was engaged by ARTF part of his statement of duties was to conduct the secretarial affairs of a company and two associations including NFFA, that the appellant performed these duties and that a secretarial fee was paid by NFFA to ARTF in respect thereof.

The appellant performed these secretarial duties under the title of executive director of NFFA. He took instructions regarding them from the President for the time being of that association and the documents in question were needed by him to perform those duties. He has neither sought nor obtained any authority to produce the documents to the Court either from ARTF or NFFA. The appellant was served with a subpoena duces tecum to attend and produce the documents and at the time of service they were in his actual possession.

The basic principle to apply in cases such as this is that a person who is served with a subpoena to produce documents in his actual possession should produce them to the Court unless there appears to the Court to be good reason for his not doing so. (See Chitty's Archbold's Practice 12 Edn. Vol. 1 p.354).

For instance, in England, it has been held that a person is entitled to refuse to produce his title deeds or, if a partner, to refuse to produce documents of the firm.

However, as a general rule, it is no excuse that the legal right to possession belongs to another if the document is in the actual possession of the person subpoenaed. Thus it has been held that a banker must produce the documents of its customer and a solicitor the documents of his client.

What is claimed here is that the appellant had possession of the documents as an employee and that therefore, in the absence of authority from his employer, he is entitled to refuse to produce them. Reliance is placed on the decision in Eccles & Co. v. Louisville and National Railroad Company ((1912) 1 K.B. 135).

The power of the Federal Court to order documents to be produced is obviously of vital significance to the proper administration of justice in proceedings before it and it should not be encumbered by undue technicality. In my opinion the basic rule that a person should be required to produce documents in his actual possession should not be departed from except for very good reason. Decisions of English Courts will provide a useful guide in exercising the power over documents but they are only a guide and are not binding on this Court.

In the ordinary case, where employees, on their employer's premises, have the day to day supervision of the employer's documents a subpoena to produce any of those documents should, in my opinion, be directed to the employer and not the employee concerned with them. If, in such circumstances, an employee is subpoenaed to produce the employer's documents, simply because, as such, he has day to day supervision of them, he is entitled to object to produce them if the employer has not consented to their production. It could be said, as suggested in Eccles Case (supra) that the reason for this is that the employee should not be required to produce them, if, by doing so, he could be in violation of his duty to his employer. A more convincing reason, in my opinion (echoed in some of the dicta in the majority judgments in Eccles Case) is, that, in the ordinary case, an employer can only exercise custody control and possession of documents through employees and that the "possession" so called of the employee in such a case is in truth the possession of the employer.

It is unnecessary to decide for the purposes of this case whether it makes any difference, as counsel for the respondent contended, if the documents are removed by the employee from the employer's premises.

In my opinion, the right of an employee to object to produce documents only exists where they are the employer's documents or the employer has some special obligations in relation to their possession. For instance, if an employee of a bank were subpoenaed to produce a customer's documents in the custody of the bank, the employee would be entitled to object to producing them. The proper recipient of the subpoena is the bank.

Circumstances can obviously exist, however, where an employee has documents in his day to day possession at his employer's premises which documents belong to a third party, not his employer, and in respect of the possession of which his employer has no rights or obligations. The employer may allow the employee to keep them there or the employee may have obtained possession of them in the course of his duties with the knowledge and consent of the employer but without the employer acquiring rights or incurring obligations regarding their possession. In such cases the employee cannot, in my view, object to produce them on the ground of his employment.

In my opinion this is the case here. The appellant's employer is ARTF. NFFA and ARTF have an arrangement whereby, for a fee, ARTF provides secretarial services for NFFA. ARTF makes its employee, the appellant, available to NFFA to perform those services and for that purpose he becomes NFFA's executive director but not its employee. Although his services are provided by ARTF he renders them personally to NFFA and in the course of and for the purpose of doing so obtains possession of documents. They are NFFA's documents and ARTF has no possessory rights or obligations in relation to them. They must be dealt with by the appellant as NFFA directs.

In these circumstances, the appellant, in my opinion, is not entitled to object to produce them on the ground that he holds them as an employee of ARTF or NFFA. He has derived possession of the documents from NFFA but not as an employee of NFFA. Although he remains an employee of ARTF, that organization has no possessory rights or obligations with respect to the documents.

The Chief Judge's order was therefore correct.