Trade Practices Commission v Arnotts Ltd - [1989] FCA 364

Re: TRADE PRACTICES COMMISSION
And: ARNOTTS LIMITED; ARNOTT'S BISCUITS LIMITED; FLEDSPAC PTY. LIMITED and
THE DICKENS CORPORATION PTY. LIMITED
No. G1316 of 1988
FED No. 364
Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Practice - subpoena duces tecum - objection to production - subpoena addressed to director of company - documents called for the property of the company - company claims privilege (self-incrimination) - company forbids director from producing documents.

HEARING

SYDNEY

#DATE 14:7:1989

Counsel and Solicitors Mr. J.P. Hamilton and
for Mr. E.S.K. Doble: Mr. S.P. Gullotta instructed by

Philip Parbury

Counsel and Solicitors Mr. C.A. Sweeney Q.C. and
for the first and second Mr. P. Comans instructed by
respondents: Clayton Utz

ORDER

Declare that Mr Doble is not bound to product the four documents identified in the reasons for judgment.

Costs reserved.

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

JUDGE1

The background to this application appears in the reasons for judgment given to-day in the Mattingly matter. A further subpoena was issued, at the request of Arnotts, addressed to Mr. E.S.K. Doble. The subpoena, as amended, requires the production of the following documents:

"1. All original and copy correspondence, briefs, reports, memoranda, surveys, research, analyses, notes, minutes, graphics, feasibility studies or other documents made, dated, sent or received in the period 1 January 1987 to date recording or referring to:

(a) any proposal to market or launch for sale in Australia any variety of biscuit;

(c) any instruction received or given concerning any proposal to market or launch for sale in Australia any variety of biscuit;

(d) the date or dates for the estimated implementation of any proposal to market or launch for sale in Australia any variety of biscuit;

(f) the biscuit business of Nabisco Brands Pty. Limited (known as Cereal Foods Pty. Limited);

(g) any proposal to import biscuits for sale in Australia;

(j) any proposal for the distribution of biscuits in Australia;

(k) any proposal for the test marketing of any variety of biscuit anywhere in Australia; or

(l) the results of test marketing of any biscuit anywhere in Australia.

2. All notes of telephone conversations, memoranda, original or copy correspondence, minutes, file notes or other documents comprising, recording or referring to:

(a) instructions given or received (since 1 September 1988) to part with possession or control of any document described in paragraphs 1(a), (c), (d), (f), (g), (j),

(k) and (l) hereof:

(b) the parting with possession or control of any document described in paragraphs 1(a), (c), (d), (f), (g), (j),

(k) and (l) hereof:

(c) the receipt by any person from Edward Doble or Mattingtly Pty. Limited of possession of control of any document described in paragraphs 1(a), (c), (d), (f),

(g), (j), (k) and (l) hereof.

3. Any file or files from which a document described in paragraphs 1(a), (c), (d), (f), (g), (j), (k) and (l) has been removed since…

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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Details

Case: [1989] FCA 364
Decision Date: 14 JULY 1989

CaseChat Overview and Summary

In Trade Practices Commission v Arnotts Ltd, the Trade Practices Commission (TPC) sought to compel the production of certain documents from Arnotts Ltd, a confectionery company. The TPC had issued a subpoena duces tecum to a director of the company, Mr. Doble, calling for the production of four specific documents. Arnotts Ltd objected to the production of these documents, claiming that they were the property of the company and that the company had instructed Mr. Doble not to produce them. The central issue before the court was whether Mr. Doble was bound to produce the documents despite the company's objections and whether the company could claim privilege over the documents.

The court found that the subpoena was validly issued and addressed to Mr. Doble as a director of the company. However, the court considered whether the company could assert a privilege over the documents and whether Mr. Doble was compelled to produce them. The court held that the documents were indeed the property of the company, and the company had the right to claim privilege over them. Furthermore, the court recognised that the company had instructed Mr. Doble not to produce the documents, which further supported the company's position. Consequently, the court ruled that Mr. Doble was not bound to produce the documents in question.

The court's decision emphasised the importance of distinguishing between personal and corporate obligations when issuing subpoenas to company directors. The court acknowledged the company's right to claim privilege over documents that were its property and the director's compliance with the company's instruction not to produce them. The court also noted that the matter of costs was reserved for a later determination. The court declared that Mr. Doble was not bound to produce the four documents identified in the reasons for judgment, and the matter of costs was to be addressed in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

Declare that Mr Doble is not bound to product the four documents identified in the reasons for judgment.

Costs reserved.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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