Trade Practices Commission v Australian Feather Mills Pty Ltd

[1990] FCA 102

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l02 7.90-

JUDGMENT NO	........ ........ .. ...,-	1. .
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IN THE FEDERAL COURT OF AUSTRALIA ) /

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VICTORIA DISTRICT REGISTRY	) NO VG 279 to 292 of 1989	, ,
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GENERAL DIVISION	)

BETWEEN: TRADE PRACTICES COMMISSION c '

(Prosecutor)

AND AUSTRALIAN FEATHER I.IILLS
PTY LTD

(Defendant)

Coram: Ryan J
Date: 16 March 1990

Place: Melbourne

EX TEMPORE REASONS FOR JUDGNENT

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In this matter, some thirteen informations have been laid against the defendant under the Trade Practices Act in respect of alleged misrepresentatlons as to the composition of certain qullts allegedly manufactured by the defendant and sald to have been composed of specified proportions of duck down and duck feather.	! i
On 2 March this year, Woodward J directed that the prosecutor serve on the defendant on or before 14 March 1990 a list of the names of the witnesses to be called by the prosecutor and a summary of the nature of the evidence to be
hearing until today. Pursuant to the direction to whlch I	given by those witnesses. His Honour adjourned the directions

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have lust referred, the prosecutor has today filed in Court a list of witnesses to be called by it and what is said to be a summary of the nature of the evidence of those witnesses.

That document lists thirteen specific witnesses and indicates in a summary way the ground to be covered by the evidence to be given by those witnesses. It concludes with a statement in these terms:

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"14. Additional Witnesses

The prosecutor rntends to call witnesses from the various retailer companies, namely Captain Snooze, Myers, Target, Grace Bros, Duna World, Rushfords, Spotlight, Ray Croft and Adairs to give formal evidence by producing company business records of the purchase from the defendant of the various quilts the subject of the Informations."

Application is made on behalf of the defendant for

directions:

"1. That the prosecutor, on or before a specified date, serve on the defendant copies of srgned statements of evldence of all witnesses who are proposed to be called in the proceedings by the prosecutor, together with copies of all documents which the prosecutor proposes to

tender in the proceedings;

2. That the defendants, on or before a specified date, notify the prosecutor in writing as to which of the witnesses will be required to attend for cross-examination, and as to any objection as to the admissibility of statements and/or other documentary evidence;

3. That the prosecutor on or before a specified date provide to the defendant copies of working papers in respect of the tests of Mr Heffer referred to in paragraph 3 of the llst of witnesses served by the prosecutor, pursuant to the order of Woodward J., dated 2

Warch 1990 ."

In my view, this Court clearly has power, in the exercise of its discretion, to make an order for the supply of statements of witnesses to be called by the prosecutor in a prosecution like the present. That was recognised by Wilcox J in Adams v Anthony Bryant & CO Ltd and Others, (1986) 15

F.C.R. 513, where his Honour made a limited order of the kind made by Woodward J to which I have just referred. However, Wilcox J declined Adams' case to require detailed proofs of the evidence expected to be adduced from the witnesses to be called by the prosecutor. Despite that expression of view, his Honour did indicate, at 518, that:

"it would be highly desirable if, upon reflection, the prosecutor decided voluntarily to supply to the defendants proofs of the evidence expected to be adduced from the witnesses to be called by him. Provided that the proofs are accurate statements of the evidence actually intended to be led, read and approved by the witnesses, this course is unlikely to prejudice the prosecution case. Experience under t h e ~ ~ u ~ r e m e court (Summary Jurisdiction) Act 1967, shows that prior

- provision of witnesses' statements saves

considerable time at the hearing. At the lowest, knowledge by counsel for the defence of the evidence to be given by a witness tends to lessen objections to that evidence; objections often arise from unfounded fears of what is to come. At its highest, the supply of the statements often leads to the admission of facts which, upon

consideration, the defence realises cannot	realistically be contested. Given the public cost
of the proceedings, it is most important that the prosecutor take all steps reasonably open to him to minimise the length of the hearing."

It was argued by Miss King, who appeared before me for the prosecutor, that the prosecution in this Court of these matters is to be heard and determined summarily, and authorities which indicate that it is necessary or desirable to order the provision of statements of witnesses in trials

on indictment are inapplicable. I am unable to dlscern, as a matter of prinicple, why a trlal of significance under the Trade Practices Act in this Court should attract any different rule of practice from that indicated by the authorities to which Mr Kaye has referred me.

In my view, whether the provision of statements should be ordered remains a matter for the discretion of the Court, havng regard to the identity of the witnesses and the nature of the evidence which it has already been indicated the prosecutor will seek to adduce from those witnesses. I propose therefore to deal separately, and in order, with each of the witnesses specified in the list of witnesses whlch has been provided pursuant to the order of Woodward J.

The first witness is a Mr Korczynski, a former officer of the Trade Practices Commission, who, it has been indicated, will give evidence of an interview with officers of the defendant company and of his purchase from retailers of products which are the subjecc of three specified informations. He is also to give evidence, I presume, that

purchase and the conduct of tests relied on by the	those products were not tampered with between the time of
prosecutor. It has been indicated on behalf of the prosecutor that a transcript of a record of interview between Mr Korczynski and the two officers of the defendant company, together with a tape recording of that interview, has already been provlded to the defendant.
In those circumstances, and on the assumption that the material which has been provided contains a complete indication of any admissions sought to be relied on agalnst the defendant, I decline to order the provision of any further material in respect of the proposed evidence from Mr Korczynski.
The same considerations apply to the evidence of the second witness on the list, Ms. Schaafsma who, it is indicated, is to corroborate Mr Korczynski's evidence of the interview with representatives of the defendant company, which was conducted on 10 November 1987.
It is common ground that the most critical evidence in the case for the prosecution is to be given by a Mr David Heffer, who is described in the list of witnesses as a consulting textile technologist. The prosecutor has already made available to the defendant a list of reports compiled by Mr Heffer of his tests and examination of the subject quilts. It has been urged by Mr Kaye, for the defendant, that details of the methods used in carrying out those tests, and any
working papers compiled by Mr Heffer in the course of carrying them out, should also be provided pursuant to the
general direction which is now sought. Miss King contends, on behalf of the prosecutor, that there is at present in existence no written proof or statement by Mr Heffer other than the reports which hape already been supplied and a copy of which have been made available to the Court. I consider it would be an inappropriate exerclse of discretion to require
the prosecutor to bring into existence a further written statement from Mr Heffer if it does not intend to do so as part of its further preparation for the trlal of this matter. As I indicated in the course of argument, there is no property in a witness. That is especially so when the witness is a technical expert witness, and it remains open to the defendant to make its own application to Mr Heffer for further illumination of the matters contained in the reports which have already been supplied. I propose therefore to order in respect of the evldence of Nr Heffer that, if any statement in writing or proof of his evidence, in addition to the statements contained in the reports already supplied to the defendant, is obtained by the prosecutor from nr Heffer before the trial, a copy of such statement or proof be provided to the defendant within 48 hours of the obtaining thereof.
The fourth witness on the list is Nr Heffer' s wife who, the list indicates, will be called to glve evidence of the purchase from a retailer of a particular guilt, the subject of one specific information. I do not consider it would be
require that the defendant be supplied with a proof of the conducive to the more efficacious trial of this matter to
evidence to be given by Mrs Heffer. I decline to make such an order.
The fifth and sixth witnesses are quality assurance managers of two retailing companies who, according to the information on the list, will be called to give evidence of the referral by their respective retaller employers to Mr Heffer for testlng of specific quilts, the subject of different informations. Having regard to the nature of that evidence, I do not consider it appropriate to order the provision of any proof of evidence or further information
about the evidence to be given by either of those gentlemen.
The seventh witness is a Miss Caddy, an employee of Mr Heffer, who, it has been indrcated, will give evidence of a purchase from a retailer of a quilt, the subject of information number VG 287, and, as I gather, of the retention of that quilt by her until delivery to Mr Heffer for testing. As with the evidence to be given by Mrs Heffer, I decline to make any order in respect of that witness.
The eighth witness on the list is that of the husband of another employee of Mr Heffer who, it has been indicated, will give evidence of a purchase of another specific quilt, the subject of one of the informations, and the delivery of it to Mr Heffer for testing. I likewise decline to make any
The first of those is a Mr Szann, who, the list of witnesses order for the provision of proofs of that witness. The next four witnesses are in a different category.
indicates, will give evidence of the setting up of, and of the purpose of, the Australian Standard for quilt and feather products. He wlll also give evidence of his observations of the method of retesting of the quilts, the subject of informations numbered VG 288, 289, 290 and 292. That

evidence, it seems, is to be in the nature of expert evidence explanatory of, or by way of, amplification of material contained in a written Australian standard. I consider that it would conduce to the more efficacious trial of this matter if any proof of evidence or statement obtained by the prosecutor from that witness were to be supplied to the defendant before trial to enable evaluation of it by the defendant's advisers and any expert retained by the defendant.

In a similar case is the evidence of Mr Kimpton, who is apparently an officer of the Quilted Products Manufacturers' Association of Australia. It has been indicated that he will give evidence of the setting up and operation of the Self Regulatory Quality Assurance Scheme adopted by the feather and down industry to maintain the standards of the industry's

products. It is not clear to me from that statement how that evidence is said to be relevanc to the informations against the defendant. However, on the assumption that it can be made relevant, I consider that it is in the same category as the evidence proposed to be called from Hr Szann. For the same

from Mr Kimpton prior to trlal should be made available to	reasons, any proof or statement obtained by the prosecutor
the defendant.

It is also proposed to call evidence of a statistical nature from M Davids and Professor Ewens. It has been indicated in the list of witnesses that Mr Davids will give evidence that Australian Standard 2479-1987 follows accepted statistical principles and that Professor Ewens will give evidence as to the statistical probability of the test results on the quilts tested being accurate. It seems highly likely from the outline of that evidence that each of those witnesses will have carried out statistical analyses of some kind on the Australian Standards and of some data relevant to the quilts in issue in these proceedings. Having regard to the expert nature of that evidence, I consider that any statement or proof of evidence obtained from each of those witnesses should be supplied to the defendant prior to trial.

The final witness specified in the list is a Dr Christidis, who is described as the curator of ornithology at the Museum of Victoria. Of him it is said that he will give evidence relating to the validity of the anatomical definitions of the various feather and down components described in Australian Standard 2479-1987.

Although directed to a different subject, it seems to

me that the evidence of Dr Christidis is again that of an

proof of evidence or statement in writing obtained from that	expert, and for reasons which I have already indicated in respect of Mr Davids and Professor Ewens, I consider that any
witness prior to trial should also be supplied to the defendant.
I propose a direction in these terms:- that in respect of any statements already in existence, copies of them be provided within 7 days of this day and that in respect of any
statement not presently in existence, but which is subsequently brought into existence, a copy be provided within 48 hours of being brought into existence. I shall reserve liberty to apply.

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I direct that the informations be placed in the list of

cases to be fixed for hearing at the callover to be held on
30 March. I reserve the costs of both parties of this day.

I certify that this and the preceding
nine (9) pages are a true copy of
the Reasons for Judgment of His

Honour Mr Justice Ryan.

Associate:

Date:  tb ) ~ ~ ~ Q - A c H / ~ P O .