Trade Practices Commission v Gillette Company

l o f t , 72

JUDGMENT No. ....... ....... eooo.
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IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NG 628 of 1992

GENERAL DIVISION j

BETWEEN : TRADE PRACTICES COMMISSION

Applicant

AND : GILLETTE COMPANY and Others

Respondent

'W	FEDERAL COURT

CORAM: Burchett J. OF AUSTRALIA
PLACE: Sydney

2 1 l A N '13
DATE : 26 October 1992

LIBRARY

EX TEMPORE REASONS FOR JUDGMENT 0

BURCHETT J.:
In this matter the applicant calls upon a subpoena which
has previously been debated in detail, and has been. the
subject of some amendment as a result of that debate. It was

adjourned till today to be called upon. The reason for the adjournment was that Mr Sweeney Q.C., for the party subpoenaed, indicated he would seek the leave of the Full Court to appeal against the earlier ruling. He also suggested that it should be adjourned until a date after proceedings, which were set down for Thursday of this week, when service on the foreign company involved will be challenged. I declined to adjourn it so far as that, being of the opinion that it was possible that there would be a legitimate forensic purpose in

prior to the proceedings on Thursday. I considered that any

the Trade Practices Commission having the subpoena answered

. .

debate to the contrary might be assisted by the result . . o£,the
application in the Full Court.
M r Sweeney now has attempted to renew the challenge to

the subpoena on grounds debated previously, and it is sufficient to say that for the same reasons I reject those grounds. They are now supported by an affidavit he seeks leave to rely upon, but that affidavit does no more, in substance, than substantiate matters which I permitted him on

the previous occasion to state from the bar table. Furthermore, the deponent is not available for cross- examination, nor had prior notice been given of the affidavit so as to enable the Trade Practices Commission to give any consideration to it. In those circumstances, I do not think I need to add anything to what I have already decided in relation to the ground raised by the affidavit.

However, a further ground is now put, which was not Commission v. TNT Manaaement Ptv Ltd (1984) 6 ATPR,

previously relied upon, on the basis of Trade Practices

section 40-446, and further on the basis of what was said by

Deane J. in Refriaerated Express Lines fA/asiaI Ptv Ltd v. Australian Meat and Live-stock Corporation, (1979) 42 FLR 204. It does not seem to me that it has been shown that these proceedings before me relate to a forfeiture in the relevant sense. I accept Mr Hilton's submission that a divestiture order is not a forfeiture; neither is it of course a criminal remedy. It has the nature of a special civil remedy provided for by the Trade Practices Act. To the extent that any

question may arise of a valid claim of privilege, the proper way in which the right to that should be asserted is by the filing of an appropriate affidavit identifying the particular documents said to incriminate and making the appropriate claim of privilege. It would then be ruled upon.

The final matter raised is whether the subpoena is
appropriate at this stage of the proceeding, having regard to

the issues which will come before the court to be decided on Thursday. I fully accept that some limits are required at this stage, and that the court should be vigilant to protect both parties, and the judicial process itself, against an improper or inappropriate mode of conduct of the proceeding; but I do not see anything in what has been done, up to this point, which would lead me to think that it would be appropriate to refrain from enforcing the subpoena in question in accordance with the limitations which I have already laid down on the previous occasion, and which I understood had been

accepted.

Accordingly, Mr Hilton may proceed to call upon the
subpoena.
I certify that this and the preceding two (2) pages

are a true copy of the Reasons for Judgment herein
of his Honour Mr Justice Burchett.

Associate: tc2\-.,.~. 5 A-.+
Date: 26 October 1992

CaseChat Overview and Summary

In the Federal Court of Australia, the Trade Practices Commission sought to enforce a subpoena against the Gillette Company and other respondents. The subpoena required the production of documents pertinent to an ongoing investigation into potential anti-competitive practices. The case was presided over by Burchett J, who had to decide whether the subpoena could be enforced as well as the legal grounds for any challenges to its validity.

The primary legal issues addressed by the court included whether the subpoena could be enforced despite objections from the subpoenaed parties, and if any of the grounds for challenging the subpoena were valid. The court considered whether the proceedings constituted a forfeiture or criminal remedy, as these would potentially engage certain privileges. Additionally, the court examined whether the subpoena was appropriately issued at that stage of the proceedings, considering the issues to be decided in subsequent hearings.

Burchett J ruled that the subpoena could be enforced, rejecting the grounds for challenge previously debated and those newly raised. The court held that the proceedings did not constitute a forfeiture or a criminal remedy, and therefore, the claimed privileges did not apply. The judge also noted that while some limits on the subpoena were necessary to protect the judicial process, the current application did not justify refraining from enforcing the subpoena within the previously established limitations. Consequently, the Trade Practices Commission was permitted to proceed with the subpoena as called.

The court's decision allowed the Trade Practices Commission to enforce the subpoena against the Gillette Company and others, subject to the limitations previously set. This ruling ensured that the investigation could proceed without undue hindrance, facilitating the Commission's ability to gather necessary documentation for its inquiry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

debate to the contrary might be assisted by the result	.	. o£,the
application in the Full Court.