Trade Practices Commission v T.N.T.Management Pty Ltd

[1983] FCA 103

I N THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES D I S T R I C T R E G I S T R Y ) NO. G . 4 4 O f 1978

GENERAL	D I V I S I O N	1
B e t w e e n :

TRADE PRACTICES COMMISSION P l a i n t i f f

- and -

T . N . T . MANAGEMENT PTY LIMITED Firs t D e f e n d a n t

BRAMBLES HOLDINGS LIMITED Second Defendant

MAYNE NICKLESS LIMITED Third Defendant

YOUNGS TRANSPORT PTY LIMITED Fourth D e f e n d a n t

ANSETT RANSPORT INDUSTRIES

(OPERATIONS) PTY LIMITED F i f t h Defendant

EXPRESS FREIGHT PTY LIMITED S i x t h Defendant

ASSOCIATED STEAMSHIPS PTY LIMITED Seventh Defendant

IPEC HOLDINGS LIMITED E i g h t h Defendant

INTERSTATE PARCEL EXPRESS CO PTY

L I M I T E D N i n t h Defendant

2 J u n e 1983

Sydney

REASONS FOR JUDGMENT

FRALUKI J .

O n Monday I d e a l t w i t h the f irst order sought i n th i s

N o t l c e of Motion by t h e T r a d e P r a c t l c e s C o m m i s s i o n ( “ t h e

i 2 .

Commmission") . That second order seeks, in effect, that the

Commission have access to the following documents In a matter

Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. VG 26 of

1977:

(a) the Court file;

(b) the transcript of the proceedings;

(c) all documents In the Court's custody produced

In answer to any subpoena called at any stage

in the proceedings; and

(d) all exhibits received into evidence in the proceedings.

The Commission was not a party in those proceedings.

There was no precise evidence before me whether the

present Federal Court Rules (Statutory Rules No. 140 of 1979,

"the 1979 rules") applied in matter VG 26 of 1977 although the

matter was argued on the basis that they did not. The Commission

did not seek to press for access at this stage to any documents

or transcript in respect of which any order for confidence had

been made but it did press for what It submltted were the public

parts of the proceedings and also for all subpoenas and documents

produced in answer to the subpoenas.

Matter G 4 4 of 1978, ln whlch thls Notlce of Motion has

been filed, is not a proceeding under the present Federal Court

Rules. Prlor to those rules becomlng effectlve on 1 August 1979,

the rules of the Federal Court were those in Statutory Rules No.

3

20 of 1977 ("the 1977 rules"). Order 2 rule 1 provlded, so far

as is relevant, that in relation to proceedings under the Trade shall be in accordance with the Conclliation and Arbltration

Regulatlons as in force for the time being, which shall apply

mutatis mutandis, so far as they are capable of application and -

sub~ect to any dlrections of the Court or a Judge". The 1977

rules, by order 64 rule 1 of the 1979 rules, apply to proceedings

commenced prior to 1 August 1979 sub~ect to any order of the

Court or a Judge. An exminatlon of the relevant Conciliation

and Arbitration Regulatlons shows that no regulations exlsted

relating to the conduct of the Registry but s.130 of the

Conciliation and Arbltration Act 1904 provided:

"Subject to thls Act and the regulations, the

duties of the Industrial Reglstrar and the

Deputy Industrlal Registrars shall be as the

Chief Judge and the Presldent jointly direct".

Regulatlon 46 of the Conclliation and Arbitratlon

Regulations provides:

."Where none of these Regulations is

applicable, the practice for the tlme belng of

the Hlgh Court shall, except in any particular

case where a Court or a Judge otherwlse

dlrects, regulate as far as is practicable,

the practlce of the Court".

It is not clear to me whether a reference to the

practlce of the High Court includes the practlce ln the High

4.

Court Registry and, In view of the provisions of 5.130 of the

Conciliation and Arbltration Act, I consider that the regulations

In relation to the High Court Registry do not apply except In so

far as a Court or a Judge may have dlrected In a particular case.

Senlor counsel for the Commission submitted that order -

58 rule 8 of the High Court Rules was applicable and that, on

payment of the prescribed fee, any person was entltled to access

to "the indexes or calendars and documents" whlch the Reglstry

was required to keep. It was submitted that the documents to

which access was now sought fell wlthin the word "documents" in

that rule. In my opinion, after 1 August 1979, the rules in

order 46 of the 1979 rules dealing with Registrles were relevant

-

to the conduct of the Registry. In any event, pursuant to order 2 rule 1 of the 1977 rules and order 64 rule 1 of the 1979 rules,

I direct that the practice In the Registry provided in the Hrgh

Court Rules shall not apply in relation to this appllcatlon.

Order 46 rule 6 provides:

"6. (1) Except wlth the leave of the Court or a

Judge a person who is not a party to the proceedlng

may not search in the Registry for or inspect -

(a) any judgment, order, transcrlpt of a

proceeding, or other document whlch the Court has ordered remain confldential;

(b) any affidavit:

(c) lnterrogatorles answers or to

interrogatories;

(d) lists of documents given on dlscovery:

5 .

admisslons;

evidence taken on deposition;

any subpoena or any documents lodged with

the Registrar in answer to a subpoena for

production of documents; or

any other document which the Registrar

considers ought to remain confidential to

the parties.

. . Except wlth the leave of the Court or a

Judge a party may not search in the Registry for or

lnspect any document filed to support an

application that any document, evidence or thing be

kept confidential or that any document or thing	be
privileged from production."

I consider that I should treat the applicatlon as having

been made to me pursuant to order 46 rule 6. There is no

evidence before me concerning what documents are in the Registry

in relatlon to matter VG 26 of 1977. Any documents which do not

fall within the prohibitions in order 46 rule 6 may be searched

for or lnspected without leave of a Court or Judge. There is no

evidence before me that any application has been made to the

Registrar or that he has exercised any ~urisdiction	under order
46 rule 6(l)(h).

-I think it is appropriate first to consider the request

to be allowed to inspect all the subpoenas whlch had been issued

In matter VG 26 of 1977. It is not clear to me how many

subpoenas have been lssued in this matter or to whom they have been issued and no attempt has been made by the Commission to

ldentify any subpoena to which It seeks access or to mpicate the

reason why inspectlon should be allowed of any particular

I . . 6 .

subpoena, A general submission was made by the Commlssion that

because of the best evldence rule it was important to know what

documents had been the subject of subpoena in VG 26 of 1977. I

am asked to treat the documents~to whlch access is sought as

being in the same category as If they had been produced in answer

to a subpoena and to permit the Commission' S legal advlsers to

have access to any document whlch I conslder to be apparently

relevant to the issues in the case. This would not take into

account any submissions of the person on whom a subpoena had been

served. Whatever other objections may exist in relation to this

proposal I consider that it 1 s in the nature of discovery and I

cannot see why a Judge should undertake such a broad obligation.

No leave is required for inspection of the pleadings, transcript,

(other than that ln respect of which an order for confidentiallty

has been made) , any exhiblt (other than that f o r which an order

for confldentiality has been made), any praeclpe for a subpoena,

the Court register and the index on the cover of the file unless

the Registrar considers any such document should remain

confidential under order 46 rule 6(l)(h).

No counsel could dlrect me to any authority relevant to

this matter and no detailed analysis of the possible procedures

was made. Counsel for the second defendant sought to call oral

evldence seeklng to show that the application for access was "an

invocatlon of the Court's dlscretion not for the genulne purpose

of obtaming access at all but for the ulterior purpose of

legltlmising access whlch has already been obtalned". I

7 .

considered any such evldence to be lrrelevant and rejected it.

Some questions arose concerning the physical

transmission of the documents from the Melbourne Registry to the

Sydney Reglstry. However, I do not think that ‘thls issue 1 s of

any significance. -

Beyond saying what I have as to the access the rules

allow without leave, I dismiss the application for access. This

is without preludice to any further application being made for

any specific document and without preludlce to any appllcatlon

for documents to be physically in the Sydney Registry durlng the

trlal. Any appllcation to inspect those documents which are

avallable for inspection under order 46 rule 6 wlthout any order

of this Court or a Judge should be made to the District Registrar

in Melbourne. I will hear submissions as to costs.

I c e r t l i y t h a t t h z s and the &L% (6 )

precedlng pages are a t rue copy of the

Reasons for Judgment herem of h i s Honour

IQ Justlce Frankl.

Dated: