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

[1981] FCA 161

TRADE PRACTICES COMMISSION v. T.N.T. MANAGEMENT PTY. LTD. (1981) 55 FLR 212
Practice

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Bowen C.J.(1)

CATCHWORDS

Practice - Subpoena duces tecum - Directed to employee - Whether documents owned by employer - Whether employee obliged to produce documents.

HEADNOTE

A subpoena to produce documents was issued by the Trade Practices Commission against a Mr P. Rochfort (R.) in the course of proceedings for pecuniary penalties and injunctions. R. was employed by the Australian Road Transport Federation (ARTF) as its executive director and it was part of his duty to conduct the secretarial affairs of the National Freight Forwarders' Association (NFFA). R. had neither sought nor obtained any authority to provide to the court the documents mentioned in the subpoena, some of which documents were owned by R.'s employer and others by the NFFA.

Held, that R., being an employee of the ARTF, was not obliged to produce in answer to the subpoena the documents owned by his employer, but he was obliged to produce documents owned by the NFFA which are in his custody, possession or control. The principle of Eccles' case should not be extended beyond the master-servant relationship.

Eccles & Co. v. Louisville and Nashville Railroad Company, (1912) 1 KB 135; Century Insurance Co. Ltd. v. North Ireland Road Transport Board, (1942) AC 509, applied.

Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd., (1947) AC 1; Re Hawkes; Ackerman v. Lockhart, (1898) 2 Ch 1; R. v. Daye, (1908) 2 KB 333, referred to.

HEARING

Sydney, 1981, September 10-11, 18, 21-22; October 2. #DATE 2:10:1981

L. J. Priestly Q.C., P. G. Hely Q.C. and J. A. Timbs, for the plaintiff.

H. Shore, for Mr Rochfort.

Cur. adv. vult.

Solicitor for the plaintiff: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for Mr Rochfort: Stephen Jaques & Stephen.

E. F. FROHLICH

JUDGE1

October 2.

The following written reasons for judgment were delivered.

BOWEN C.J. In this proceeding I am concerned with a subpoena to produce documents which was issued by the Trade Practices Commission (the Commission) against Mr Peter Rochfort. The subpoena was issued in the course of proceedings brought by the Commission against T.N.T. Management Pty. Ltd., Brambles Holdings Ltd., Mayne Nickless Ltd., Youngs Transport Pty. Ltd., Ansett Transport Industries (Operations) Pty. Ltd., Express Freight Pty. Ltd., Associated Steamships Pty. Ltd., Ipec Holdings Ltd. and Interstate Parcel Express Co. Pty. Ltd. seeking pecuniary penalties and injunctions under the Trade Practices Act 1974 (Cth). In the prinicipal proceedings the pleadings are now complete and 6th October, 1981, has been fixed as the date for hearing.

1. The subpoena addressed to Mr Rochfort was made returnable on 10th September, 1981. On that day I heard a summons issued by Mr Rochfort to set aside the subpoena. Two preliminary arguments were put. First, that the subpoena was in a wrong form and therefore a nullity and, secondly, that there was no power to issue such a subpoena returnable in advance of the hearing. I decided against these arguments and the hearing of the summons to set aside the subpoena then contined. Further submissions in support of the summons were that the nine defendant companies were entitled to immunity against self-incrimination and that this extended to the documents referred to in the subpoena and to Mr Rochfort. It was further submitted that Mr Rochfort was a servant and that he had no authority to produce the documents and should, therefore, not be required to do so. Reliance was placed upon Eccles & Co. v. Louisville and Nashville Railroad Company (1912) 1 KB 135.

2. I came to the conclusion that no sufficient factual basis had been established before me which would justify me in setting aside the subpoena in limine upon these grounds. Production in accordance with the subpoena was then required to be made on 21st September, 1981.

3. On 21st September, 1981, Mr Rochfort answered his subpoena. The subpoena described the documents in a schedule which was as follows: "(a) the constitution of the Australian Road Transport Federation as amended from time to time; (b) to the extent that it is not part of (a) the 'Australian Road Transport Federation Group Rules' as amended from time to time; (c) the constitution of the National Freight Forwarders' Association; (d) all documents recording or evidencing the formation of; (i) the Australian Road Transport Federation, and (ii) the National Freight Forwarders' Association; (e) all minutes of meetings of the National Freight Forwarders' Association from the first meeting of that association to date, including all minutes of the annual general meetings of that association; (f) the set of documents entitled 'National Freight Forwarders' Association Subscription Register'; (g) all documents recording or relating to the levy of subscriptions and/or the payment of subscriptions by members of the National Freight Forwarders' Association for the year 1975- 1976, 1976-1977, and 1977-1978; (h) all documents recording the membership of the National Freight Forwarders' Association from the date of the formation of that association until 25th May, 1978; (j) all written applications for membership of the National Freight Forwarders' Association made by any person or company from the date of the formation of that association until 25th May, 1978; (k) all documents showing an annual list or register of members of the National Freight Forwarders' Association, including any such list or register kept separately, for the years 1975- 1976, 1976-1977, 1977-1978; (1) all documents lodged with the executive director of the Australian Road Transport Federation from time to time by any member of the National Freight Forwarders' Association nominating any person as being authorized to represent that member at meetings of the National Freight Forwarders' Association or stating that any person would attend any meetings of the National Freight Forwarders' Association on behalf of that member; (m) all documents wherby members of the National Freight Forwarders' Association were notified of the holding of a meeting of the National Freight Forwarders' Assocciation on 20th May, 1976; (n) all documents notifying members of the National Freight Forwarders' Association of the holding of a dinner to follow the meeting of the National Freight Forwarders' Association on 20th May, 1976; (o) all documents recording or evidencing the attendance at the meeting of the National Freight Forwarders' Association on 20th May, 1976; (p) all documents recording or evidencing the attendance at the dinner referred to in par. (n) above; (q) all accounts received by the National Freight Forwarders' Association in respect of the dinner referred to in par. (n) above; (r) all accounts rendered by members and/or records of amounts charged to members of the National Freight Forwarders' Association in respect of the dinner referred to in par. (n) above; (s) all documents, received from members of the National Freight Forwarders' Association in response to any of the documents referred to in par. (r) above; (t) all records kept of; (i) correspondence, and (ii) outgoing mail, from the office of the executive director of the National Freight Forwarders' Association for the period 1st January, 1976, to 30th November, 1976."

4. Mr Rochfort indicated he had documents in categories (a) to (i) and (k) to (o) both inclusive but no documents in categories (i), (p), (q), (r) or (s). As to the documents referred to in par. (c), namely, the constitution of the National Freight Forwarders' Association, he said that he had no objection to producing this. A copy of it was already annexed to his affidavit sworn on 21st September, 1981. It was stated that the documents which he had were not in court but were nearby in counsel's chambers and could be produced but he objected to producing them. Mr Rochfort was then sworn and took the objection that the documents described in the subpoena were not in his personal possession but were in the possession of the National Freight Forwarders' Association, the members of that association and the executive of that association. He was examined and cross-examined. I accept Mr Rochfort's evidence, except in so far as it relates to the events which occurred when Miss Hannon, an officer of the Commission, visited his office and inspected and took notes of various documents. As to those events his recollection, for whatever reason, was faint and faulty. Miss Hannon was examined and cross-examined on these events and I accept her account which, in some respects, is in conflict with that of Mr Rochfort.

5. On the evidence before me I make the following findings: 1. The National Freight Forwarders' Association (NFFA) is an unincorporated association whose rules are those which are annexed to the affidavit of Mr Rochfort sworn on 21st September, 1981. 2. At the time of the issue of the subpoena and at the date of the hearing before me there were seven members of the NFFA 3. On the pleadings it is admitted that the first, sixth and seventh defendants are members and Mr Rochfort gave evidence that the fifth defendant was a member. It was not admitted or proved that the second, third, fourth, eighth or ninth defendants were members. 4. The Australian Road Transport Federation (ARTF) is a body consisting of eleven constituent associations including NFFA 5. The office of the ARTF is in suite 3 on the seventh floor of Erskine House, 39-41 York Street, Sydney. A lease of the premises was granted by the Australian Mutual Provident Society (lessor) to Walter Ashley Levitt and Roy Edward Heasman (trustees of ARTF) (lessee) for the term extending from 1st August, 1977, to 31st July, 1980; and a further lease was granted by the same lessor to Eric Barry Williams and Gerald Crofton Uniacke (trustees of ARTF) (lessee) for the term extending from 1st August, 1980, to 31st July, 1982. 6. The ARTF employs and pays two male and five female employees who work at those premises. Mr Rochfort is the senior employee of the ARTF at the premises. 7. Mr Rochfort was engaged by the ARTF as its executive director, replacing a Mr Levitt, and is in charge of the ARTF office and staff. He has the power of engaging staff but has not had occasion to fire any staff member. He is paid by the ARTF 8 NFFA leases no premises and employs no staff. 9. As a constituent member of the ARTF, NFFA pays to the ARTF an annual subscription of about twenty-seven per cent of ARTF's annual budget and in addition a secretarial fee. 10. When Mr Rochfort was engaged by ARTF part of his statement of duties was to conduct the secretarial affairs of a company and two associations within ARTF The two associations referred to were the NFFA and the National Furniture Removers' Association. The secretarial fee paid by NFFA to ARTF was paid in respect of those secretarial duties. 11. The duties performed by Mr Rochfort in relation to NFFA included preparation of the agenda for meetings, sending out of notices, the keeping of minutes and the dissemination of those minutes. He held the title of executive director of the NFFA and took instructions regarding the calling of meetings and the contents of the agenda from the president for the time being of the NFFA Although there seems to have been little expenditure by the NFFA it had a bank account and Mr Rochfort countersigned its cheques. 12. Mr Rochfort took over what documents there were relating to NFFA from the time of his predecessor Mr Levitt and also had custody of the documents prepared during the period he himself was performing duties in relation to NFFA He needed these documents to perform his duties. 13. He produced to Miss Hannon, an officer of the Trade Practices Commission, a number of the documents categorized in the subpoena and permitted her to take extracts. 14. Mr Rochfort has neither sought nor obtained any authority to produce to the court the documents mentioned in the subpoena either from ARTF or NFFA

6. Upon the evidence before me I am of opinion that Mr Rochfort is an employee of ARTF and not an employee of NFFA The documents referred to in pars. (a), (b) and (d) (ii) of the subpoena, I conclude, are owned by ARTF It appears to me that having no authority to produce them Mr Rochfort, in respect of these documents, has brought himself within the principle discussed in the Eccles case (1912) 1 KB 135. and I uphold his objection to production of these documents.

7. I should mention that in relation to one of the documents which he regarded as falling within par. (1) of the subpoena, he claimed that he should not be required to produce it on the ground that legal professional privilege attached to it. He described it as legal advice from the then solicitors for the NFFA which was contained in one of the sets of minutes comprehended in the description in that paragraph. Counsel for the Commission indicated that the production of this legal advice was not required. Mr Rochfort is relieved from producing that particular document.

8. Dealing with the documents described in paragraphs other than (a), (b) and (d) (ii), it appears that Mr Rochfort has not established the necessary basis for the claim that the principle in the Eccles case should be applied. For this decision to apply, it must be established that the individual involved is an employee. Here counsel encountered a difficulty. Clearly, Mr Rochfort is an employee of the ARTF To establish employment with the NFFA it must be established that he is not merely a servant of the ARTF made available to the NFFA, but that he actually became a servant of that organization. This question is most often discussed in cases where it is necessary to establish who is the employer of an employee for purposes of vicarious liability. Such a case was Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd. (1947) AC 1. . The general test for establishing the employment relationship includes consideration of who employs, pays and can dismiss the employee, and who has the power to direct how work is to be done, not merely what work is to be done. It is this latter element which assumes importance in the present case. For example, Mr Rochfort is subject to the directions of the chairman of the NFFA when doing work for them. Nevertheless, in doing that work and taking those instructions, he is fulfilling the requirements of his employment with the ARTF It is that organization which has directed him to follow instructions from the NFFA He remains their servant. This is one of the cases referred to by Lord Wright in Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board (1942) AC 509. where his Lordship said: "Most cases can be explained on the basis of there being an understanding that the man is to obey the directions of the person with whom the employer has a contract, so far as is necessary or convenient for the purpose of carrying out the contract. Where that is the position, the man who receives directions from the other person does not receive them as a servant of that person, but receives them as a servant of his employer" (1942) AC, at p 517.

9. Even on the basis that he was a servant of the ARTF and only of that organization, counsel submitted that he could not be considered to hold documents in any personal capacity and, that being so, should not be obliged to produce them. I am not prepared to hold that the Eccles principle can be extended beyond the relationship of master and servant. True it is that Mr Rochfort is a servant, but the owner of the documents is not his master. In these circumstances, the NFFA, the owner of the documents, cannot prevent him producing the documents in his possession on that basis. In many cases, an individual who holds documents on behalf of another can be compelled to produce them. Examples are bankers and solicitors holding documents for a customer or client (see Re Hawkes; Ackerman v. Lockhart (1898) 2 Ch 1. and R. v. Daye (1908) 2 KB 333. In this case Mr Rochfort necessarily had the documents in order to perform the secretarial duties the subject of the arrangement between NFFA and ARTF

10. It appears to me that although ownership of the documents in question rests with the NFFA, Mr Rochfort has custody, possession and control of them. In my opinion he is obliged to produce them in response to the subpoena.

11. I should notice a further argument advanced by counsel for the Commission. He referred to Bullivant v. Attorney-General (Vic.) (1901) AC 196. as authority for the proposition that, where a contravention of law is involved, legal professional privilege cannot be relied on as a ground for refusing to produce documents. I am not satisfied that this applies to a case such as the present where the objection taken to production is on an entirely different basis. At all events, in arriving at my conclusion I have not relied upon this authority.

12. I stand over the subpoena to 2nd October, 1981, at 2.15 pm. and direct that the documents other than those referred to in pars. (a), (b) and (d) (ii) be produced to the court at that time.