Practice—Subpoena duces tecum—Unincorporated association—Subpoena served on executive officer—Objection to production—Possession, custody or control of documents—Documents other than employer's documents—Absence of employer's authority to produce.
Decisions
November 18. The following written judgments were delivered:- GIBBS C.J. At the dates material to the present case the Australian Road Transport Federation (ARTF) was a body which consisted of eleven constituent organizations, one of which was another unincorporated association, National Freight Forwarders' Association (NFFA), which itself had seven members. The appellant was engaged by ARTF as its executive director. He was paid by ARTF, and worked in premises leased by ARTF, but his duties included the conduct of the secretarial affairs of NFFA, and he held also the title of executive director of NFFA. He was paid nothing by NFFA, but a fee was paid by NFFA to ARTF in respect of the duties which he performed for the former body. The appellant had the custody of certain documents prepared while he was performing duties relating to NFFA. In the course of proceedings brought in the Federal Court of Australia by the Trade Practices Commission against nine companies, four at least of which were members of NFFA, the appellant was served with a subpoena duces tecum, requiring him to produce certain documents. The appellant appeared before Bowen C.J. to answer the subpoena. He stated that certain documents were nearby in counsel's chambers but that he objected to producing them. On being sworn he took the objection that they were not in his personal possession, but were in the possession of NFFA, the members of that association and the executive of that association. Bowen C.J. held that the appellant was an employee of ARTF, and not of NFFA, and that in these circumstances he was obliged to produce documents owned by NFFA but in the appellant's possession and control. An appeal to the Full Court of the Federal Court was dismissed. For somewhat different reasons, the learned judges who constituted the Full Court agreed that the appellant did not have possession of the documents as a servant of NFFA. Smithers J. added that the possession which the appellant had acquired "as a person under duty to deal with the documents in the interests of NFFA was necessarily possession full and unqualified". The matter now comes to this Court on appeal by special leave. (at p138)
2. A person who is properly served with a subpoena duces tecum in due form requiring him to produce specified documents must (subject to payment of any necessary conduct money) attend at the place directed by the subpoena and produce such of the specified documents as are in his possession. If the documents are not in his possession, however, he is not obliged to endeavour to acquire them from the person who has possession of them, "no man…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Rochfort v Trade Practices Commission [1982] HCA 66
Case
[1982] HCA 66
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Rochfort against a decision of the Trade Practices Commission. The dispute concerned the Commission's power to require a person to attend before it and give evidence and produce documents under section 155 of the *Trade Practices Act 1974* (Cth). Rochfort had been issued with a notice under this section, requiring him to attend and produce documents relating to his business activities.
The central legal issue before the High Court was whether the notice issued by the Trade Practices Commission was valid. Specifically, the Court had to determine whether the Commission had reasonable grounds to believe that Rochfort had committed or might have committed an offence against the *Trade Practices Act 1974* (Cth), as required by section 155(1) for the issuance of such a notice. The Court also considered whether the notice was too broad in its scope, demanding production of documents that were not sufficiently related to the suspected contravention.
The Court reasoned that section 155(1) requires the Commission to have a genuine belief, based on reasonable grounds, that a contravention has occurred or may occur. This belief must be objectively justifiable. The Court found that the information before the Commission at the time the notice was issued did not provide reasonable grounds for the belief that Rochfort had committed or might have committed an offence. The notice was therefore held to be invalid. The Court also noted that even if reasonable grounds existed, a notice must be sufficiently specific in its requirements to avoid being characterised as a "fishing expedition".
The appeal was allowed, and the notice issued by the Trade Practices Commission was set aside.