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

[1981] FCA 221

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) NO. G.44 of 1978

DIVISION GENERAL 1

BETWEEN: TRADE PRACTICES COMMISSION

Plalntlff

AND: T.N.T. MANAGEMENT PTY.

LIMITED

First Defendant

BRAMBLES HOLDINGS LIMITED

Second Defendant

MAYNE NICKLESS LIMITED

Thlrd Defendant

YOUNGS TRANSPORT PTY.

LIMITED

Fourth Defendant

ANSETT TRANSPORT

INDUSTRIES (OPERATIONS)

PTY. LIMITED

Flfth Defendant

EXPRESS FREIGHT PTY.

LIMITED

Slxth Defendant

ASSOCIATED STEAMSHIPS

PTY. LTD

Seventh Defendant

IPEC HOLDINGS LIMITED

Elghth Defendant

INTERSTATE PARCEL EXPRESS

CO. PTY. LIMITED

Nmth Defendant.

FRANK1 J

19 November 1981

SYDNEY.

2.

REASONS FOR JUDGMENT

On 4 September 1981 a subpoena for the productlon of

certaln documents, returnable on 10 September 1981, was Issued from thls Court to Mr. P. Rochfort. On the return day of the

subpoena Mr. Rochfort was represented by senlor counsel and a

number of objectlons were taken to the subpoena. A summons to

set aside the subpoena had been taken out by Mr. Rochfort. On 10

September 1981 Bowen C.J., before whom the subpoena came, made

certaln orders and on 18 September he delivered reasons for his

judgment of 10 September 1981 and also detalled reasons wherein

he dealt wlth a number of questions going to the validlty of the

subpoena served upon Mr. Rochfort and also subpoenas served upon

certain other persons. His Honour pointed out that It was not

argued that the subpoena addressed to Mr. Rochfort was too wide

in Its terms and held that the subpoena addressed to Mr. Rochfort

should not be set aslde but that he should answer It. When Mr.

Rochfort answered the subpoena further submissions were made that

certain of the documents wlthln the terms of the subpoena were

not in hls personal possesslon. m e Chief Judge on 2 October

1981 held that certain of the documents In questlon were wlthin

the custody, possesslon and control f Mr. Rochfort.

An appeal was brought to the Full Court of this Court by

Mr. Rochfort from thls order of the Chlef Judge of 2 October 1981

but no appeal was brought from the judgments of the Chief Judge

of 10 and 18 September 1981.	The appeal was dlsmlssed on	4
November 1981.

3 .

The proceedlngs in whlch the subpoena was lssued was

llsted before me on 5 November 1981 and on 12 November 1981. On

5 November 1981 I was informed by senior counsel for Mr. Rochfort

that an appllcatlon for speclal leave to appeal from the judgment

of the Full Court of thls Court glven on 4 November 1981 would be

made to the High Court and I was asked to grant a stay In the

same terms as that granted by the Chlef Judge. On 12 November

1981 I was informed by senlor counsel for Mr. Rochfort that the

application for special leave would be made to the High Court on

4 December 1981 and I extended the stay whlch I had made on 5

November 1981 untll further order.

The history of these proceedings, which commenced on 25

May 1978, has shown that they are regarded by all partles as

being of great Importance and that one must not be surprised if

matters of slgniflcance arlsing In interlocutory proceedlngs

become the subject of appeal.

I granted the stay on the basis that It was the desire

of all parties, including the Trade Practlces	Commission, that an
approprlate stay should be granted.

If the appllcatlon for speclal leave to the Hlgh Court

is refused or if the stay is removed the questlon wlll arise

whether the Court has power to allow the Trade Practices

Commission to Inspect all or any of the documents the subject of

the subpoena to Mr. Rochfort.

4.

All parties agreed to my suggestlon that It would be a

convenlent course for me to declde that questlon without further

delay. My purpose In so doing was to facllltate the matter,

which was commenced on 25 May 1978, getting to trial.

Senlor counsel for the Trade Practices Commission posed

the question for my determlnatlon as 'I has the Court power to

permlt lnspection by a party of the documents produced In answer

to the subpoena?". Thls question was to be answered upon the

basis that assumptions are made that the documents are relevant

and that they have been produced to the Court. Senior counsel

for the Commissloner presented two arguments, the flrst being

that inspectlon, subject to the control of the Court, was a

necessary corollary to productlon and secondly, that the Court

should follow the judgment of the Court of Appeal of New South Wales in Wamd v. H111 (1978) 1 N.S.W.L.R. 372 ("Walnd's Case")

In partlcular the reasonlng at pp.378-386. It was also submitted

that that case was In accord wlth the judgment of Samuels J.A. in

Maddlson v. Goldrick (1976) 1 N.S.W.L.R. 651 at p.666. Senlor

counsel for Mr. Rochfort dlrected my attention to the judgment of

Blackburn J. In McAuliffe v. McAuliffe (1973) 4 A.C.T.R. 9: Elder

v. Carter 25 Q.B.D. 194: Burchard v. - Macfarlane C18911 2 Q.B. 241

and The Commlssloner for Rallways	v. Small (1938) 38 S.R. 564 at
573-574.

I am clearly of the oplnlon that the Court does have

power to make available relevant documents to a party where

5.

those documents are produced to the Court In answer to a subpoena

by a person not a party to the lltigation notwlthstanding that that person objects both to the productlon of the documents to the Court and to the documents being made avallable to the party

or parties. Before I deal with the authorlties I have mentioned

it seems approprlate to note the vlews expressed by the Full

Court of this Court in Terrltory Ford Pty. Limlted v. Michalowsky

(unreported) 30 October 1981. An order for dlscovery for

documents against a person not party to proceedings had been made

under a rule of the Supreme Court of the Northern Terrrtory and

the questlon arose whether that rule w a s ultra vlres. The Court

dismlssed the appeal and after referring to Norwich Pharmacal Co. v. Customs and Exclse Commlssloners C19741 A.C. 133 sald at pp.13-14:

“So understood, the ‘mere witness‘ rule seems

more attuned to days when surprise and ambush were seen as unavoldable Incidents of

litlgation than to modern concepts of practice

and procedure aimed at ensuring that there be

adequate preliminary access to information and that relevant materlal be before the Court.“

It also sald at p.p.14-15:

“It is, of course, deslrable that any interference with the rlghts and convenlence

of strangers resultlng from court procedures

be limited to what 1s necessary or desirable In the pursurt of justice In the courts. The

rights and convenience of the citizen must

however be subjected to what 1s necessary for

the due and proper admlnlstratlon of ~ustlce.

As a matter of course, strangers to lltlgation

are required to produce documents to, or to

attend to give evldence before, the courts.

It 1 s common procedure of some courts,

6.

lncludlng the Federal Court of Aus t ra l ia and

the Supreme Court of New South Wales, t o

enable prellminary access t o be obtained to

documents whose production has been subpoenaed

by making t h e subpoena re turnable on a day

before the actual hearincr commences ( see . for

example, Trade Prac t ices Commission v. T.N.T. -

Management P ty . L t d . Federa l Cour t of

Aus t ra l la (Bowen C . J . 18/9/1981). A procedure

t o b t a l n d i s c o v e r y of documents aga ins t

s t r a n g e r s t o l l t l g a t l o n may well, i n some

clrcumstances, be conduclve both t o a par ty ' S

havlng an adequate opportunity t o p repa re h l s

case and t o	t h e	e f f i c i e n t	a d m i n l s t r a t i o n	o f
j u s t i c e . "

The r e fe rence t o Trade Practlces Commlsslon v. T.N.T.

Management Pty. Ltd. 1s a re ference to the dec is ion of Bowen

C . J . , t o whlch I have referred, and from which no appeal was

brought.

I n Lucas Industrles Ltd. v. Hewitt (1978) 18 A.L.R. 555

a F u l l C o u r t of this C o u r t heard an appeal from a judgment In

which a subpoena duces tecum had been s e t a s l d e by a judge of the

Supreme Court of Vlctorla In an actlon for Infringement of a

pa ten t . The subpoena had been i s sued to a person who was not a

par ty to the ac t lon requl r lng hlm t o produce documents p r l o r t o

the hear lng. An order had been made that "expert evidence In the

ac t lon be by a f f ldavi t w i t h the usua l r igh ts of cross-exminat lon

and t h e a f f i d a v i t s of each par ty in ch lef be f l led and served on

or before 13 September 1976". Smithers J., with whose judgment

Bowen C. J. , and Nimmo J. agreed, reached the conclusion that the

appeal should be upheld and a t pp.566 and 567 h i s Honour sa ld :

7.

"I see nothlng in any of the authorltles to

throw doubt on the prlnciple that when,

according to the nature of any particular

proceedlng, conslderations of justlce and convenience requlre productlon of relevant documents at some particular time, whether

before or after trlal, production should then be ordered. So far as thls case is concerned,

If there are relevant documents the contents of whlch would be proper materlal for expert

comment and oplnlon and they are not produced

before the trial, then when the documents are

ultlmately produced the experts would have to

consider them at that stage and any comments

and oplnions arislng in respect to them would

have to be made the subject of further

affidavits, presumably on leave belng

obtalned. "

And at p.568:

"It IS clear that production at thls stage of

the documents sought may asslst the appellant

in cross-examlnation of the defendant's

wltnesses. It may glve him lnformation as to

the contents of documents and thereby enable

hlm to cross-examine the respondent Howlett

and perhaps other witnesses free from the

risks involved in calling for and reading

documents of unknown content, and belng

required to tender them in evldence, whether

they be favourable or otherwise."

Commenclng at p.569 hls Honour consldered an argument of

the respondent that the subpoena was an attempt to subject the respondents, who were not parties to the actlon, to an obllgation

to make dlscovery. HIS Honour referred to Elder v. Carter

(supra) and Burchard v. - Macfarlane (supra) and The Commissloner

for Railways v. Small (supra) and certain other authorltles. At p.571 his Honour set out a passage from the judgment of Jordon

C.J. in The Commissioner for Railways v. Small (supra) whlch

included the following:

8.

"If the witness produces the documents, he

produces them to the court and not to the

partles. He may, If he choose, state that he

objects to then bemg handed to the parties

for mspectlon. If so, it 1 s for the judge to

make such examinatlon of them as he thmks proper, and he may order such of them as he

considers relevant to be read, or handed to

the parties for inspectlon, as he may thlnk

deslrable, wlth a vlew to their belnq tendered

in evidence: Burchard v. Macfarlane- C18911 2

QB 241 at 247-8."

The judgments In Lucas Industries Pty. Ltd. v. Hewltt

(supra) clearly proceeded upon the basis that the Judge had

power at his discretion to allow Inspection of documents produced

by a person not	a party to the proceedings in answer to	a
subpoena.

It 1 s by no means clear to me that Blackburn J. In

McAullffe v. McAulrffe (supra) held that the Court had no power to allow mspection of such documents - see page 11 lines 16 to

23. I am bound by the vlews expressed in Lucas Industries Pty.

-	Ltd v. Hewltt (supra) and I conslder that those views govern the
questions whlch 1 s before me.

It 1s appropriate to set out a passage from the judgment

of Moffitt P., in Walnd's Case at p.384. Hutley and Glass JJ-A.

agreed wlth the judgment of Moffitt P.

"It 1 s accepted that the documents should not go beyond the judge against objection of the owner, unless there 1 s valld reason to do so. It 1s clear that it can only be legltlmate to

do so, so far as It 1 s necessary in the proper

conduct of the litlgatxon. It is dlfflcult to

9.

see why to do that which 1 s 'requlslte for the purpose of justlce' should be restricted by some arbltrary llmlt. Of course, the concept

of what 1 s requlslte for the purpose of

justlce and how the compromlse between the

requlrements of justlce between litlgants and

the rlghts of stranger should be met, may

change and, Indeed, be different now from the concepts of last century, just as concepts as

to what 1 s approprlate between parties has

changed in favour of fuller dlsclosure of

relevant matters. "

A s to prellminary dlscovery In the Federal Court, see

Order 4 rule 17.

It is sufficlent at this stage to say that I am

satisfled that the Court has power In an approprlate case to

permlt a party to Inspect documents produced by a person not a

party to the proceedlngs. The questlon of whether I w ~ l l permlt

the lnspectlon of any of the documents produced	by Mr. Rochfort
does not fall for conslderatlon at present.

I reserve the questxons of costs of the hearlng before

me on 16 November 1981.

-

I ccrt~i'y i . h n k thrs en& the

EIGHT (a )

prccedlng pages aye a true copy of the

Reasons f o r Judgmenthereln ofhlsHonou

Mr. Justlce franG

I

Assoclate