Trade Practices Commission v Gillette Company

[1992] FCA 1087

l o f t , 72

JUDGMENT No. ....... ....... eooo.

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IN THE FEDERAL COURT OF AUSTRALIA )

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NEW SOUTH WALES DISTRICT REGISTRY ) NG 628 of 1992

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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

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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

L	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,
b	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
L/	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
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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