Trade Practices Commission v Sony (Australia) Pty Ltd

[1990] FCA 332

JUDGMENT NO. ........ ........ ........ .. 332./90

C A T C H W O R D S

EVIDENCE - when secondary evidence of documents may be admitted - notice to produce documents ineffective or deficient - ground of inconvenience considered - discretion to dispense with rules of evidence considered.

Trade Practices Commission
v. Sonv (Australia) Ptv Limited & Ors

Qld G42 of 1989

PINCUS J.
BRISBANE

14 MAY 1990

IN THE FEDERAL COURT OF AUSTRALIA	1	QLD G42 of 1989
DUEENSLAND DISTRTCT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: TRADE PRACTICES COMMISSION

Applicant

AND: SONY (AUSTRALIA) PTY LIMITED

First Respondent

AND: ALEXANDER FRANCIS PAGONIS

Second Respondent

AND: MICHAEL BAXTER

Third Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	1 4 IIAY 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The objections to paragraphs 10, the first sentence in paragraph 12, paragraph 20, first and second sentences, and paragraph 23 of the affidavit of C.J.

Swift be overruled.

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

IN THE FEDERAL COURT OF AUSTRALIA	1	QLD G42 of 1989
OUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: TRADE PRACTICES COMMISSION

Applicant

AND: SONY (AUSTRALIA) PTY LIMITED

First Respondent

AND: ALEXANDER FRANCIS PAGONIS

Second Respondent

AND: MICHAEL BAXTER

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

This morning some objections to evidence were reserved; they related to paragraphs 10, the first sentence in paragraph 12, paragraph 20, first and second sentences, and paragraph 23 of Swift's affidavit. My decisions on them were reserved because I wished to examine the point, taken by Mr

Heydon QC, that secondary evidence was not to be admitted.

Senior counsel for the applicant, Mr Keane QC, informed me without objection that a notice to produce had been given. However, there is a question whether or not the notice to produce is sufficient, and I mention that again shortly. Paragraph 10 which is, I think, a sufficient example to stand for the rest reads in part as follows:

" As a result of using the computer system, I

observed that retailers orders for Sony stock

... names were not ticked."

The dates of these events are not precisely stated but can be said to be necessarily between about March 1986 and March 1988 during which period the deponent, Mr Swift, had a position with Sony. The argument which was advanced was that the notice to produce was not of any use because in matters such as this there is no obligation to comply with one, and the secondary evidence which is undoubtedly contained in paragraph 10 was therefore inadmissible and not able to be got in by any means except, perhaps, some sort of permission in the course of evidence.

The proposition that a notice to produce may be given in criminal proceedings has the support of the decision in New South Wales in the case of R. v Jordan (1876) 14 Supreme Court Reports, 296. It also appears to be supported by Moraan v Babcock and Wilcox Limited (1930) 43 CLR 163. The consequence of not complying with a notice to produce in

criminal proceedings or in proceedings of this kind, is not	that an order for production will be made, but that secondary
evidence may be adduced, however, I take a broader ground. There is a considerable amount of authority now in favour of the proposition that the rules as to admission of secondary evidence are not so inflexible as to produce the result that a notice to produce is required here.

For example, Halsburv, vo1.17, 4th ed., 141 says -

and gives illustrations:

" Secondary evidence is admissible where it is

impossible or highly inconvenient to produce
the original document. "

Other examples given in Professor Brown's book on documentary evidence are, B. v Shield (1866) 5 Supreme Court Reports, 213, and also R. v Duncan ex varte Griffin (1887) 13 VLR at page 509.

In the latter case, the evidence that was admitted was an official notice of proper rates for releasing cattle from a pound that was posted up on a notice board. It does not seem to have been extremely inconvenient, one would have thought, to produce it, but nevertheless the court held that secondary evidence could be admitted on the ground of inconvenience.

Here the inconvenience is somewhat more acute

because the documents to which reference is made in paragraph

indeed, identify. It would be, I should have thought,	10, one would have thought, would be difficult to locate or,
impossible for Sony to do it, because lk Swift refers to the documents only in a general way and no doubt there are numerous orders in their records. It seems improbable that he is referring to all of the orders Sony received; he is discussing certain of them only, so that to make a selection
of the documents to which he refers, presumably Mr Swift would
have to attend at the office of Sony and try to remember which ones they were.
It appears to me that this is sufficient to enable one to arrive at a conclusion that there is sufficient inconvenience to make it unnecessary to prove or account for the absence of the originals, and I therefore hold that the objection taken on the ground of secondary evidence in paragraph 10 is not a good one.
I mentioned earlier that the notice to produce might be argued to be deficient with respect to some of the documents in question. It refers to stock records and it may or may not have been clear to Sony that by it the applicant intended to require production of such documents as are mentioned, for example, in paragraph 12 of Mr Swift's
affidavit. It is clear that further notice to produce can be given during proceedings as long as sufficient time for production is allowed. The deficiency in the notice to produce, for present purposes, could be met in that way. However, I do not propose to suggest or require that a further notice to produce be given. There is no reason to think that
the further notice to produce would have any other fate, and I propose to let in the documents mentioned in paragraph 12, first sentence, paragraph 20, first and second sentences, and paragraph 23.
If the documents were not otherwise admissible, I would let them in anyway, under the discretion which is given by order 33 rule 3(b). It seems to me that although that provision has been substantially read down by the Full Court (or some members of it) in the case of Pearce v. Button
(1986) 65 ALR 83, enough of it is left to make it of some
practical use, and to avoid what might seem to an intelligent lay observer to be rather an absurdity; namely, going through the form of requiring a further notice to produce to be given, and a pointless search for documents which can only be

.- .

generally identified anyway to be undertaken.	L..
, .
r :
, --:
So in summary, I do not think the notice to produce is sufficient to cover all the paragraphs. I will, nevertheless, let the documents in on the ground that it is inconvenient to adhere to the rule in this instance, requiring production of the originals, and if that were not so, I would exercise my discretion to let them in. The objections which I reserved, therefore, to paragraphs 10, 12 first sentence, 20

and 23 will be overruled.	I certify that this and the four
preceding pages are a true copy of the reasons for judgment herein of Mr Justice Pincus.
Date 1 4 'qqo

Counsel for the Applicant:	Mr P.A. Keane QC & M r
M. Stewart
Solicitors for the Applicant:	Australian  Government
Solicitor
Counsel for the First Respondent:	Mr J.D. Heydon QC and Mr A.J.L. Bannon
Solicitors for the First Respondent:	Blake Dawson Waldron
Counsel for the Second Respondent:	Mr P. Dutney
Solicitors for the Second Respondent:	Adamson, Bernays, Kyle and Jones
Counsel for the Third Respondent:	Mr C. Hodgekiss
Solicitors for the Third Respondent:	Sly & Weigall
Date of Hearing:	14 May 1990