Trade Practices Commission v T.N.T. Management Pty Ltd (No. 1)

[1981] FCA 160

Re: TRADE PRACTICES COMMISSION
And: T.N.T. MANAGEMENT PTY. LIMITED; BRAMBLES HOLDINGS LIMITED; MAYNE NICKLESS
LIMITED; YOUNGS TRANSPORT PTY. LIMITED; ANSETT TRANSPORT INDUSTRIES (OPERATION
PTY. LIMITED; EXPRESS FREIGHT PTY. LIMITED; ASSOCIATED STEAMSHIPS PTY. LIMITED
IPEC HOLDINGS LIMITED; INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED
(1981) 55 FLR 197
N.S.W. No. G44 of 1978
Subpoenas Duces Tecum

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1)

CATCHWORDS

Subpoenas Duces Tecum - Return date fixed in advance of hearing - Applicable rules High Court Rules - Current Federal Court form used instead of High Court form - Court's power to excuse non-compliance with Rules - Court's power to direct return day for subpoenas in advance of hearing.

High Court Rules, Order 1 r.4, Order 37 r.25, Order 64 rr.1 and 3.

Federal Court of Australia Act 1976, ss.38 and 59.

Subpoenas duces tecum - Subpoenas served on individuals not parties to action - Summons to set subpoenas aside as too wide - No evidence individuals so associated with defendants in action that they could adopt company's immunity from selfincrimination - No evidence individuals servants of company defendants - Subpoenas too wide in requiring production documents "recording or evidencing" names of employers over four year period - Subpoenas too wide in requiring production of documents "recording or evidencing" names of trustees of superannuation funds to which individuals contributed in four year period.

Subpoena duces tecum - Addressed to individual "Executive Director" of Federation which owns documents - Arrangement between Federation and employer of individual for provision of secretarial services - Individual not employee of owner of documents - Principle in Eccles & Co. v. Louisville & Nashville Railroad Company (1912) 1 KB 135 inapplicable.

Practice - Subpoena duces tecum - Return date fixed in advance of hearing - Applicable rules - Whether court has power to direct return day in advance of hearing - Whether court has power to excuse noncompliance with rules.

HEADNOTE

The Trade Practices Commission took proceedings under the Trade Practices Act 1974 to recover pecuniary penalties from the defendants. The plaintiff served fourteen subpoenas on various individuals, not parties to the main litigation, requiring production to the court some four weeks before the date set for the hearing, of various documents. The individuals filed applications by way of summonses to set aside the subpoenas.

Held, that the summonses to set aside the subpoenas duces tecum be dismissed save that as to the subpoenas duces tecum addressed to Lincoln, Wilkins, Wise, Rowsthorn, Davies, Uniacke, O'Brien, Shortell, Prebble, Gouldstone, Robinson, Linfoot and Roots no response need to be given to certain paragraphs.

HEARING

Sydney, 1981, September 10-11, 18. #DATE 18:9:1981

SUMMONSES.

Applications by way of summonses to set aside subpoenas issued by the Trade Practices Commission for the production of documents.

L. J. Priestly Q.C., P. G. Hely Q.C. and J. A. Timbs, for the Trade Practices Commission.

T. R. H. Cole Q.C., A. B. Shand Q.C. and L. D. S. Waddy, for the defendants T.N.T. Management Pty. Ltd., Messrs. Gouldstone, Shortell and Lincoln.

C. A. Sweeney, for Brambles Holdings Ltd., Messrs. Linfoot and Robinson.

R. B. S. Macfarlan and J. Allsop, for Messrs. Wilkins, O'Brien, Davies, Uniacke and Rowsthorn.

H. Shore for Mr. Rochfort.

Solicitor for the Trade Practices Commission: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the defendants T.N.T. Management Pty. Ltd., Messrs. Gouldstone, Shortell, Lincoln, Wilkins, O'Brien, Davies and Uniacke: Dawson Waldron.

Solicitors for Brambles Holdings Ltd., Messrs. Linfoot and Robinson: Freehill Hollingdale & Page.

Solicitors for Mr. Rochfort: Stephen Jaques & Stephen.

E. F. FROHLICH

ORDER

These are applications by way of summonses to set aside subpoenas issued for the production of documents against the following persons by the Trade Practices Commission: Mr. Gouldstone, Mr. Prebble, Mr. Shortell, Mr. Wise, Mr. Lincoln, Mr. Wilkins, Mr. O'Brien, Mr. Davies, Mr. Uniacke, Mr. Rowsthorn, Mr. Linfoot, Mr. Robinson, Mr. Rochfort and Mr. Roots. The summonses raise difficult questions of procedure involving an attack on the validity of the subpoenas issued which have used a form prescribed by the current rules of the Federal Court, notwithstanding the fact that the proceedings, of which a hearing is fixed for 6 October 1981, were instituted before those rules came into operation. The proceedings are governed by the rules then in force which mainly consist of the rules of the High Court.

At one stage an application was made to Mr. Justice Franki to make an order that the proceedings should continue under the current rules. One respondent was an applicant. The other respondents opposed this. His Honour on 8 May 1981 refused to make such an order, so the proceedings continued on the basis that the old rules applied to them.

It was also submitted that there was no power in the Court to direct a return day on a subpoena to produce documents, which was before the hearing day, at all events where the old rules, the High Court Rules, applied.

In view of the limited time which is available I think I should give a decision on this now. I will not give reasons at this stage but if any party indicates to me that he wants reasons I will give them at a later stage.

The conclusions to which I come are that the use of the wrong form of subpoena to produce documents is in each case an irregularity; that the Court has power to direct a return day of a subpoena to produce documents which is earlier than the day of hearing, leaving on one side whether in fact that power was exercised in the present case; that no special prejudice arising from the use of the wrong form has been disclosed by the evidence which is before me; and that in the circumstances disclosed in the evidence I should make an order that the Trade Practices Commission, which applied for the issue of the subpoenas, should be excused from its failure to comply with the applicable rules.

In the result I order and direct first, that the Trade Practices Commission be excused from compliance with the applicable rules regarding the form of subpoena to produce documents issued to the persons I have listed earlier. Secondly, that the fixing of a return date in each subpoena in advance of the hearing be confirmed nunc pro tunc and be effective. Thirdly, that so far only as concerns the subpoenas the hearing in relation to them shall proceed in accordance with the current rules of this Court. That is an isolated order restricted to this hearing.

AS TO subpoenas duces tecum addressed to the following: George Ernest Lincoln, Ralph Charles Wilkins, John Arthur Wise, Peter Rowsthorn, Mervyn George Davies, Gerald Crofton Uniacke, Neil David O'Brien, Ian Shortell, Edward Walter William Prebble, Joseph Anthony Gouldstone, Neil Edward Robinson, John William Linfoot, William Roots, ORDER that no response need be given to paragraphs (c), (d) and (f).

OTHERWISE ORDER the summonses including the summons issued by the first, fifth and seventh defendants to set aside the subpoenas be dismissed.

I MAKE no order as to costs.

AS TO the subpoena duces tecum addressed to Peter Rochfort ORDER that the summons to set aside the subpoena be dismissed with costs.

1. (i) The documents referred to in paragraphs (a), (b) and (d)(ii) of the subpoena need not be produced.

(ii) Any document in paragraph (1) which is legal advice given to the National Freight Forwarders' Association by its solicitors need not be produced.

2. All other documents in answer to the subpoena be produced.

3. The subpoena be stood over to 2.15 p.m. to be answered then.

JUDGE1

On 25 May 1978 the Trade Practices Commission took proceedings under the Trade Practices Act 1974 to recover penalties from the defendants named in the action. It is alleged that they have entered into various arrangements and undertakings in breach of s.45 of that Act. The parties have been before the Court on numerous occasions for argument on various interlocutory matters.

One of these occasions was an application by one defendant, supported by the plaintiff, to have the proceedings conducted under current Federal Court Rules. As the proceedings were commenced prior to 1 August 1979, they were being conducted under the High Court Rules pursuant to Order 64 r.1 of the Federal Court Rules. On 8 May 1981, Franki J. refused to make the order sought.

The plaintiff has now served fourteen subpoenas on various individuals, not parties to the main litigation, requiring production to the court, some four weeks before the date set for hearing, of various documents. Despite the ruling of Franki J. on 8 May, these subpoenas were in the form currently prescribed by the Federal Court Rules. They thus do not comply with the High Court Rules, in particular Order 37 r.25.

The individuals on whom these subpoenas were served argue that the subpoenas are void on the grounds first, that they are in the wrong form and, secondly, that the Court has no power to issue subpoenas bearing a return date in advance of the hearing, or at least such a course is invalid unless specifically ordered by the Court or a judge.

From the inception, the proceedings between the parties have been fought with determination on both sides. The dispute now before me has been approached in the same way.

The individuals were not represented by the same counsel, nevertheless the arguments put by Counsel for five of them, namely, Messrs. Gouldstone, Prebble, Shortell, Wise and Lincoln, were adopted by the representatives of the other individuals.

There are substantial differences in the forms of subpoenas prescribed by the High Court Rules (Form 39) and the Federal Court Rules (Form 43). I was taken through these in some detail. I consider these differences to be in form only and not to produce any injustice to the recipients. The form of the subpoenas actually issued, the Federal Court form, achieves the same ends as the High Court form. In fact, most variations are for the benefit of those who must produce the documents. These formal differences are irregularities and do not nullify the subpoenas.

The more substantive issue raised concerning these subpoenas was the fixing of a return date prior to the hearing. Counsel argued that subpoenas for the trial should be issued returnable on the date of hearing. Any variation from this course must find specific statutory authorization. Conceding that this Court would have power to make rules in this regard, given the wide terms of s.59 of the Federal Court of Australia Act, and might give directions under s.38, it was put that as no such rule had been made and no such direction had been given, the purported issue of the subpoenas with an early return date was a nullity.

Counsel further relied on the fact that there are now specific provisions in the Rules of the Supreme Court of New South Wales (Part 37 r.2) as supporting the need for specific authorization for a return date other than the date of hearing. In the Supreme Court Rules there is specific reference to a subpoena being made returnable at the trial. Where the matter is left at large the Court, in my opinion, has power to order that a subpoena be returnable at a date prior to the date of hearing. In what circumstances it should exercise this power is another matter. Elder v. Carter (1890) 25 Q.B.D. 194 was relied on. It contains some useful cautionary observations. However, that case was concerned with the use of subpoenas to achieve discovery from a stranger to the litigation, and the comments of the Court were principally directed to dispelling the notion that such a course could be adopted.

I am of opinion that this Court has power to make rules, pursuant to s.59 of the Federal Court of Australia Act, authorizing the issue of subpoenas returnable before the date of hearing. Although no such rule has, in fact, been made, the Court or a judge can give directions on the matter (s.38). This being so, these subpoenas, while irregular in form, are not void.

I come next to consider whether I have power to relieve the Trade Practices Commission of the consequences of this irregularity, no direction having been obtained before the subpoenas were issued. It was argued that there is no power, under Order 64 r.1 of the High Court Rules to remedy this situation. That rule provides:
"1.(1) Subject to the next succeeding sub-rule, non-compliance with these rules as with a rule of practice for the time being in force, does not render any proceedings void unless the Court or a Justice so directs.

(2) The proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with in such manner and upon such terms as the Court or Justice thinks fit."

The basis of this argument was the contention that the issue of subpoenas are not "proceedings" within the meaning of the High Court Rules. I do not accept this argument. The definition of "proceeding" in Order 1 r.4 of the High Court Rules is inclusive only. Order 64 is expressed in general terms and, as a remedial provision, should be interpreted broadly. The terms of Order 64 r.3 also indicate that a step taken in the action may come within the meaning of "proceedings". A subpoena is one step in the various procedures taken before the trial of an action. As such, it is within the meaning of proceedings in Order 64. I, therefore, conclude that I have power, under the applicable rules, to remedy the defect in form of these subpoenas.

As previously noted, the irregularity in form of the subpoenas is, if anything, favourable to the persons subpoenaed. I am satisfied that the use of the wrong form was the result of a bona fide error and was in no way intended to confuse or mislead the recipients of the subpoenas. The power to fix an early return date is not readily exercised, except as a matter of convenience with the consent of the parties. However, bearing in mind the history of this matter and the need to resolve preliminary issues with minimal delay and the lack of prejudice to anyone, I find that this is an appropriate case to exercise my power to relieve the Trade Practices Commission of the consequences of the irregularities in these subpoenas. I am also of opinion I have power to confirm nunc pro tunc the fixing of the return dates for the subpoenas prior to the hearing. To minimise further dispute concerning them, I also order and direct that all proceedings in relation to the subpoenas served on Messrs. Gouldstone, Shortell, Wise, Lincoln, Prebble, Davies, Uniacke, Rowsthorn, Wilkins, O'Brien, Rochfort, Roots, Linfoot and Robinson, being the subpoenas the subject of these summonses, proceed under the current rules of the Federal Court of Australia.

On 25 May 1978 the Trade Practices Commission commenced proceedings by the issue of a writ with statement of claim endorsed against T.N.T. Management Pty. Limited, Brambles Holdings Limited, Mayne Nickless Limited, Youngs Transport Pty. Limited, Ansett Transport Industries (Operations) Pty. Limited, Express Freight Pty. Limited, Associated Steamships Pty. Limited, Ipec Holdings Limited and Interstate Parcel Express Co. Pty. Limited seeking pecuniary penalties under ss.76 and 77 of the Trade Practices Act 1974 ("the Act") and injunctions under s.80. The claim was based upon the alleged contravention by the defendants of s.45 of the Act as it stood prior to its amendment on 1 July 1977. It is alleged that three understandings or arrangements were entered into on 12 February 1976, 20 May 1976 and 4 August 1976 and also that these understandings or arrangements were given effect to and that this conduct continues.

An application by the second defendant to strike out certain paragraphs in the statement of claim was dismissed on 4 July 1979 and an appeal to the Full Court against this refusal was dismissed on 21 November 1979.

On 3 April 1980 summonses were issued by three of the defendants seeking an order that the action against the defendants taking out the summons be tried separately. These summonses were dismissed.

On 8 May 1981 one of the defendants applied for an order that the current rules of the Federal Court should, in future, apply to these proceedings. This defendant was supported by the Commission but the application was opposed by other defendants. The order sought was refused. It followed that the proceedings continued in force under the old rules which are to be found in Statutory Rules 1977 No. 20 and Statutory Rules 1977 No. 220. To a large extent the High Court rules are applicable mutatis mutandis.

Because the proceedings are for penalties no discovery or interrogatories have been available to the Commission against the defendants (The King v. Associated Northern Collieries (1910) 11 C.L.R. 738; Refrigerated Express Lines (Australasia) Pty. Limited v. Australian Meat and Livestock Corporation (1970) 42 F.L.R. 204). The Commission did issue a notice under s.155 of the Act but this was after the proceedings had commenced. The issue of the notice was challenged and it was held that it need not be answered and, indeed, that it was a contempt of court (Brambles Holdings Limited v. Trade Practices Commission (1980) A.T.P.R. 42,461; cf. Trade Practices Commission v. Pioneer Concrete (Vic.) Pty. Limited, 17 August 1981, unreported, on appeal to the High Court).

The pleadings are now complete and a date for the hearing has been fixed for 6 October 1981 for some months.

The summonses which are now before me are to set aside certain subpoenas duces tecum which have been issued by the Commission against fourteen persons, namely, Messrs. Gouldstone, Prebble, Shortell, Wise, Lincoln, Wilkins, O'Brien, Davies, Uniacke, Rowsthorn, Linfoot, Robinson, Rochfort and Roots. The subpoenas were, by an oversight, issued in the form prescribed by the current rules of the Federal Court. They were made returnable on 10 September 1981, that is, in advance of the hearing. On the return day all persons who had been subpoenaed were legally represented. The defendants had all been notified and some, but not all, of them were legally represented.

Two initial points were taken. First, that the subpoenas were in the wrong form and were as a consequence a nullity, and, secondly, that there was no power in the Federal Court to make a subpoena duces tecum returnable in advance of the hearing of the proceedings. I ruled on these two points at the close of argument on them on 10 September 1981. I held that the Commission should be excused from its failure to comply with the applicable rules and I stated that I would give reasons if requested. Reasons were requested and have since been given.

The hearing of the summonses to set aside the subpoenas continued. It was argued that I should set the subpoenas aside in limine on various grounds. To appreciate the grounds it is necessary to set out the form of the subpoenas. Thirteen of them were in a form which required the person subpoenaed to produce the documents and things described in a schedule. In each case the schedule was as follows:
"(a) Group certificates and any records of details contained in group certificates relating to the income derived by you during the financial years ending 30 June 1975, 30 June 1976, 30 June 1977 and 30 June 1978;

(b) the parts of your income tax returns for the financial years ending 30 June 1975, 30 June 1976, 30 June 1977 and 30 June 1978 in which the name or names of your employer or employers are stated;

(c) all documents recording or evidencing the name of each employer by which you were employed during the financial years ending 30 June 1975, 30 June 1976, 30 June 1977 and 30 June 1978;

(d) all documents recording or evidencing the name of any company of which you were a director during the financial years ending 30 June 1975, 30 June 1976, 30 June 1977 and 30 June 1978;

(e) all notices of meetings, agendas for meetings, minutes and notes of meetings of the National Freight Forwarders' Association from and including 1 February 1976 to and including 30 November 1976;

(f) all documents recording or evidencing the names of the trustees of any superannuation fund to which you or any person on your behalf made contributions during the financial years ending 30 June 1975, 30 June 1976, 30 June 1977 and 30 June 1978."

One of the subpoenas, addressed to a Mr. Rochfort, was in a different form. I shall deal with it later.

Included in the evidence which was tendered on the hearing of the summonses and which was to be taken as evidence in all applications was a letter dated 8 December 1978 from the Commonwealth Crown Solicitor to Parish Patience and McIntyre which gave certain particulars of allegations in the statement of claim and which indicated that, with the exception of Mr. Rochfort, the persons who had been served with these subpoenas were in one way or another alleged to be representatives of one or other of the defendants at one or more of the meetings referred to in the statement of claim. Another document, somewhat surprisingly in evidence, was a summary apparently prepared by someone on the plaintiff's side indicating the issues, what evidence was available and what evidence would be needed.

Counsel representing five of the persons subpoenaed, namely, Messrs. Gouldstone, Prebble, Shortell, Wise and Lincoln carried the main burden of argument. He submitted, first, that a defendant in proceedings for a penalty was not required to disclose information which might assist in the establishment of liability for the penalty. He referred to Martin v. Treacher (1886) 16 Q.B.D. 507; Jones v. Jones (1889) 22 Q.B.D. 425; The King v. Associated Northern Collieries, supra; Egg and Egg Pulp Marketing Board v. Korp Tocumal Trading Co. Pty. Limited (1963) V.R. 378; and Refrigerated Express Lines (Australasia) Pty. Limited v. Australian Meat and Livestock Corporation, supra. He argued that the principle of immunity extended to any form of information which might assist in establishing the liability of a defendant at least where it was sought to be obtained from a person alleged to be a representative of the defendant. Secondly, he argued that the principle discussed in Tesco Supermarkets Limited v. Nattrass (1972) A.C. 153 applied. He contended that if it appeared that a person subpoenaed to produce documents was a director of a company which was a defendant in proceedings for a penalty, then under the principle the company was not required to incriminate itself, the director was the company and was entitled to the company's immunity from disclosure. He argued that this principle applied to a director also of an associated company of a defendant company or to any member of senior management. The class covered was later said to comprise a general manager, general manager of a division, deputy general manager or assistant to the deputy general manager. Thirdly, he submitted that the documents referred to in paragraph (e) of the subpoena should be inferred to be the company's documents and to be in the custody of the subpoenaed person as a servant or representative of the company. It followed, so it was argued, from the principle discussed in Eccles & Co. v. Louisville and Nashville Railroad Company (1912) 1 K.B. 135 that the person subpoenaed ought not to have to inquire of his employer whether he had authority to produce the documents and in the absence of authority should not be compelled to produce them. Fourthly, he submitted that the subpoena in relation to the documents referred to in paragraphs (a) to (d) inclusive and in paragraph (f) was too wide.

Counsel for the other persons subpoenaed adopted these arguments and in some instances advanced additional arguments. Counsel for five other such persons, namely, Messrs. Wilkins, O'Brien, Davies, Uniacke and Rowsthorn, argued that in looking to the ambit of the immunity given to the defendants, the Court should be concerned with what was the "property" of the defendant, whether in the form of information or documents. He submitted that as to knowledge acquired by a person as a servant of a company or documents which came to that person as a servant of the company, the company was entitled to say do not disclose it and the person subpoenaed was entitled to refuse to disclose it.

Counsel for Messrs. Linfoot and Robinson, as well as relying particularly on the principle discussed in Eccles Case, supra, referred to s.75B of the Act. This renders liable to prosecution or penalty any person who has aided, abetted, counselled or procured a contravention or who has been in any way directly or indirectly knowingly concerned in or a party to a contravention or who has conspired with others to effect a contravention. He tendered three affidavits sworn by Mr. Wood, a solicitor employed by the firm of solicitors acting for the second defendant and also Mr. Robinson and Mr. Linfoot. In the first affidavit Mr. Wood referred to the paragraph of the subpoenas served on Messrs. Robinson and Linfoot (paragraph (e)) and said "any such documents which may exist are the property of the second defendant". Nothing was said as to the nature of any possession, custody or control which Messrs. Robinson and Linfoot might have or the capacity in which they held the documents. In his second affidavit he said he was informed by Mr. Robinson and verily believed "that he (Mr. Robinson) fears that if he were obliged to produce the documents referred to in the subpoena or any of them the production of such documents would tend to expose him to a pecuniary penalty". His third affidavit referred to Mr. Linfoot and was in similar terms. No grounds for such fears were stated. He referred to O'Toole v. Mitcham (1977) 2 A.C.L.R. 471 (affirmed in the High Court) and to The Commissioner for Railways v. Small (1938) 38 S.R.(N.S.W.) 564 at p.574. He also argued that the subpoena was fishing and too wide.

Counsel for the first, fifth and seventh defendants by leave addressed the Court. He argued that the subpoenas were bad on the ground, amongst others, that they sought discovery. He submitted that a subpoena should always be held to seek discovery if it was issued against a stranger in advance of the trial and the stranger was required to state whether a document existed and whether he had it.

I deal with these points in turn.

Company's immunity

The proposition that a defendant company in proceedings for a penalty is not required to disclose information which may assist in establishing liability for the penalty is a sound one but the corollary which is put forward is too wide. It is not correct, in my opinion, to say that the principle of immunity extends to any form of information which might establish the liability of such a defendant. The underlying principle is that the defendant is not to be required to incriminate himself but incriminating evidence may, of course, be obtained from a stranger if it is available. It may be that in a particular case the person from whom the incriminating information is sought is not a stranger but is, in effect, covered by the immunity. This really was the foundation of the argument put. However, no facts have so far been established before me which would lead me to hold that any one of the persons subpoenaed was entitled to the company's immunity. Whether, if they were entitled to such immunity, the objection should be taken by them personally on the return of the subpoena, is another matter.

Principle discussed in the Tesco Case

If it were shown by evidence that the person subpoenaed was in fact the company, for example, if it was shown that he was the company because he was a director or by reason of provisions in the articles of association or by reason of some resolution of the company, a serious question would arise whether the company's immunity extended to him. However, there is so far no evidence before me which would establish that any particular relationship existed between any one of the persons subpoenaed and any one or more of the defendants. In the absence of such evidence it has not been established that any of the persons subpoenaed is entitled to the immunity of one or more of the defendant companies or that I should set aside any subpoena on this ground.

Company's documents in the custody of a servant

The principle discussed in Eccles Case is to the effect that a servant of a company who has custody of the company's documents ought not to have to inquire of his employer whether he has authority to produce the documents and in the absence of authority should not be compelled to produce them. The difficulty here is that the basic facts have not been established which would enable me to apply this principle. So far as the evidence goes, I am left in ignorance whether any of the persons subpoenaed is a servant of any of the defendant companies, and, subject to what I say below as to Mr. Robinson and Mr. Linfoot, in ignorance also of whether the documents which the persons subpoenaed are called on to produce are in fact the documents of any one or more of the defendant companies. From the allegations in the statement of claim and the particulars, one might speculate about these matters. But the relevant allegations are denied by the defendants. I do not consider the evidence would lead me to draw the suggested inferences. In the case of Mr. Robinson and Mr. Linfoot I have the affidavit evidence of Mr. Wood that any documents falling within paragraph (e) which may exist are the property of the second defendant. But I have no evidence as to who has possession, custody or control of the documents or in what right Messrs. Robinson and Linfoot may have possession, custody or control.

Immunity attaching to defendants' "property"

It was submitted that knowledge acquired by a person as a servant of a company or documents which come to that person as a servant of the company was "property" of the company; that it would be a breach of the immunity principle to say the servant must produce it; the company would be entitled to say do not produce the documents or disclose the information. The difficulty with this submission, as with the last submission discussed, is that the evidence does not establish the facts to support it.

Argument based on s.75B

The fears of Messrs. Robinson and Linfoot, expressed on their behalf, are not shown by any evidence to be based on sufficient grounds to justify me in setting aside the subpoenas against them.

That the subpoena is too wide

It was argued that each of the thirteen subpoenas which I have been discussing was too wide in its terms and was oppressive. This argument was directed particularly to paragraphs (a), (b), (c), (d) and (f). The argument was put in a number of ways. It was said that the subpoena constituted an attempt to obtain discovery against a third party and should be set aside. Reference was made to Small's Case, supra, at p.573. It does not appear to me that the subpoena is defective in this respect. It does not call upon the person addressed to make a judgment as to each of his documents related to issues between the parties (Small's Case, supra, at p.573; and Waind v. Hill and National Employers' Mutual General Association Limited (1978) 1 N.S.W.L.R. 372 at p.382). It was also argued that paragraphs (a), (b), (c), (d) and (f) each contained a general description which would cover a large number of documents, some of which could not possibly be relevant. This may be a ground for setting aside a subpoena (Waind's Case, supra, at p.382). However, whether a subpoena is to be held oppressive on this ground and set aside involves a question of degree.

Looking at paragraphs (a) and (b) it is true they may in their terms reach documents which cannot possibly be relevant. For example, a group certificate or a part of an income tax return which refers to an employer who has nothing to do with the case. However, the documents described must necessarily be few. I do not consider there would be oppression on the persons served with the subpoena and I am not prepared to set the subpoenas aside so far as paragraphs (a) and (b) are concerned. I am of opinion the documents referred to in paragraphs (a) and (b) should be produced to the Court and if objection is taken to access to any of them on the grounds they have no relevance to the proceedings, this will be ruled upon at the time.

Looking at paragraphs (c), (d) and (f), it appears to me that these paragraphs are too wide. Not only do they refer to employers, companies and the trustees of superannuation funds which may be quite unrelated to the proceedings, but also the reference is to documents "recording or evidencing" various names and this description, although restricted to a four year period, is otherwise unlimited. The subpoena would require a judgment to be exercised as to what documents "evidenced" such names as distinct from "recording". In my opinion it would be oppressive to require the persons subpoenaed to answer in respect of these paragraphs.

I turn to the subpoena served upon Mr. Rochfort. This subpoena called upon him to produce the following documents:
"(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 1975/76, 1976/77, and 1977/78;

(h) all documents recording the membership of the National Freight Forwarders' Association from the date of the formation of that Association until 25 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 25 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 1975/76, 1976/77, 1977/78.

(l) 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 authorised 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 whereby members of the National Freight Forwarders' Association were notified of the holding of a meeting of the National Freight Forwarders' Association on 20 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 20 May 1976;

(o) all documents recording or evidencing the attendance at the meeting of the National Freight Forwarders' Association on 20 May 1976;

(p) all documents recording or evidencing the attendance at the dinner referred to in paragraph (n) above.

(q) all accounts received by the National Freight Forwarders' Association in respect of the dinner referred to in paragraph (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 paragraph (n) above;

(s) all documents, received from members of the National Freight Forwarders' Association in response to any of the documents referred to in paragraph (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 1 January 1976 to 30 November 1976."

Counsel for Mr. Rochfort adopted the argument put by Counsel for Messrs. Gouldstone, Shortell, Prebble, Wise and Lincoln and by Counsel for Messrs. Davies, Uniacke, Rowsthorn, O'Brien and Wilkins and advanced certain additional arguments. From two affidavits sworn by Mr. Sharpe, a solicitor employed by the firm of solicitors acting for Mr. Rochfort and from Mr. Sharpe's oral evidence given when he was cross-examined upon his affidavits, it appeared that Mr. Rochfort was the Executive Director of the Australian Road Transport Federation and the Executive Director of the National Freight Forwarders' Association. The rules of neither Association were before me and I am unaware what Mr. Rochfort's duties might be as Executive Director of either unincorporated association. Mr. Sharpe in his oral evidence suggested that Mr. Rochfort was "the person who co-ordinates the dealings with the organisation". This does not carry the matter very far. Nor did it appear who were the members of either association or whether any particular defendant was or was not a member. In his oral evidence Mr. Sharpe said that he concluded that about six defendants were members, basing this upon a statement made to him by Mr. Rochfort as to the defendants who were not members. This did not do much to clarify the situation.

Dealing with the claim of the extension of the immunity of any of the defendant companies to Mr. Rochfort, I am of opinion I have no sufficient factual basis on which to conclude that any particular defendant's immunity should be given effect to in his favour. Nor does the evidence suggest that the principle discussed in the Tesco Case would have any application to Mr. Rochfort.

Dealing with the claim that the principle discussed in Eccles Case should be applied to him, I am confronted with the same difficulty, that I have no evidence from which I am prepared to conclude that the documents referred to in the subpoena which was addressed to Mr. Rochfort are in fact in the ownership, possession, custody or control of any one or more of the defendants. I leave on one side the question whether documents which were shown to be generally owned by a group of persons, some of whom were defendants in the proceedings, would attract immunity in the case of Mr. Rochfort. It was not argued that the subpoena addressed to Mr. Rochfort was too wide in its terms. Altogether, I am of opinion that facts have not been shown which would warrant the setting aside of the subpoena addressed to Mr. Rochfort at this stage.

In the result I conclude that paragraphs (c), (d) and (f) of the subpoenas addressed to Messrs. Gouldstone, Prebble, Shortell, Wise, Lincoln, Wilkins, O'Brien, Davies, Uniacke, Rowsthorn, Linfoot, Robinson and Roots are too wide and need not be answered. I am of opinion that those subpoenas should be answered so far as paragraphs (a), (b) and (e) are concerned.

I conclude that the subpoena addressed to Mr. Rochfort should not be set aside but that he should answer that subpoena.

JUDGE2

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. Limited, Brambles Holdings Limited, Mayne Nickless Limited, Youngs Transport Pty. Limited, Ansett Transport Industries (Operations) Pty. Limited, Express Freight Pty. Limited, Associated Steamships Pty. Limited, Ipec Holdings Limited and Interstate Parcel Express Co. Pty. Limited seeking pecuniary penalties and injuctions under the Trade Practices Act 1974. In the principal proceedings the pleadings are now complete and 6 October 1981 has been fixed as the date for hearing.

The subpoena addressed to Mr. Rochfort was made returnable on 10 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 continued. Further submissions in support of the summons were that the nine defendant companies were entitled to immunity against selfincrimination 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 K.B. 135.

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 21 September 1981.

On 21 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 1975/76, 1976/77, and 1977/78;

(h) all documents recording the membership of the National Freight Forwarders' Association from the date of the formation of that Association until 25 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 25 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 1975/76, 1976/77, 1977/78.

(l) 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 authorised 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 whereby members of the National Freight Forwarders' Association were notified of the holding of a meeting of the National Freight Forwarders' Association on 20 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 20 May 1976;

(o) all documents recording or evidencing the attendance at the meeting of the National Freight Forwarders' Association on 20 May 1976;

(p) all documents recording or evidencing the attendance at the dinner referred to in paragraph (n) above.

(q) all accounts received by the National Freight Forwarders' Association in respect of the dinner referred to in paragraph (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 paragraph (n) above;

(s) all documents, received from members of the National Freight Forwarders' Association in response to any of the documents referred to in paragraph (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 1 January 1976 to 30 November 1976."

Mr. Rochfort indicated he had documents in categories (a) to (i) and (k) to (o) both inclusive but no documents in categories (j), (p), (q), (r) or (s). As to the documents referred to in paragraph (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 21 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.

On the evidence before me I make the following findings:

1. The National Freight Forwarders' Association (N.F.F.A.) is an unincorporated association whose rules are those which are annexed to the affidavit of Mr. Rochfort sworn on 21 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 N.F.F.A.

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 (A.R.T.F.) is a body consisting of eleven constituent associations including N.F.F.A.

5. The office of the A.R.T.F. 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 A.R.T.F.) (lessee) for the term extending from 1 August 1977 to 31 July 1980; and a further lease was granted by the same lessor to Eric Barry Williams and Gerald Crofton Uniacke (trustees of A.R.T.F.) (lessee) for the term extending from 1 August 1980 to 31 July 1982.

6. The A.R.T.F. employs and pays two male and five female employees who work at those premises. Mr. Rochfort is the senior employee of the A.R.T.F. at the premises.

7. Mr. Rochfort was engaged by the A.R.T.F. as its Executive Director, replacing a Mr. Levitt, and is in charge of the A.R.T.F. 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 A.R.T.F.

8. N.F.F.A. leases no premises and employs no staff.

9. As a constituent member of the A.R.T.F., N.F.F.A. pays to the A.R.T.F. an annual subscription of about 27% of A.R.T.F.'s annual budget and in addition a secretarial fee.

10. When Mr. Rochfort was engaged by A.R.T.F. part of his statement of duties was to conduct the secretarial affairs of a company and two associations within A.R.T.F. The two associations referred to were the N.F.F.A. and the National Furniture Removers' Association. The secretarial fee paid by N.F.F.A. to A.R.T.F. was paid in respect of those secretarial duties.

11. The duties performed by Mr. Rochfort in relation to N.F.F.A. 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 N.F.F.A. and took instructions regarding the calling of meetings and the contents of the agenda from the President for the time being of the N.F.F.A. Although there seems to have been little expenditure by the N.F.F.A. it had a bank account and Mr. Rochfort counter-signed its cheques.

12. Mr. Rochfort took over what documents there were relating to N.F.F.A. 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 N.F.F.A. 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 categorised 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 A.R.T.F. or N.F.F.A.

Upon the evidence before me I am of opinion that Mr. Rochfort is an employee of A.R.T.F. and not an employee of N.F.F.A. The documents referred to in paragraphs (a), (b) and (d)(ii) of the subpoena, I conclude, are owned by A.R.T.F. 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 Eccles Case, supra, and I uphold his objection to production of these documents.

I should mention that in relation to one of the documents which he regarded as falling within paragraph (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 N.F.F.A. 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.

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 A.R.T.F. To establish employment with the N.F.F.A. it must be established that he is not merely a servant of the A.R.T.F. made available to the N.F.F.A., but that he actually became a servant of that organisation. 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) A.C. 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 N.F.F.A. when doing work for them. Nevertheless, in doing that work and taking those instructions, he is fulfilling the requirements of his employment with the A.R.T.F. It is that organisation which has directed him to follow instructions from the N.F.F.A. He remains their servant. This is one of the cases referred to by Lord Wright in Century Insurance Co. v. Northern Ireland Road Transport Board (1942) A.C. 509 at p.517 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."

Even on the basis that he was a servant of the A.R.T.F. and only of that organisation, 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 N.F.F.A., 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 In re Hawkes; Ackerman v. Lockhart (1898) 2 Ch. 1; and The King v. Daye (1908) 2 K.B. 333). In this case Mr. Rochfort necessarily had the documents in order to perform the secretarial duties the subject of the arrangement between N.F.F.A. and A.R.T.F.

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

I should notice a further argument advanced by Counsel for the Commission. He referred to Bullivant v. Attorney-General for Victoria (1901) A.C. 196 as authority for the proposition that, where a contravention of law is involved, legal profession 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.

I stand over the subpoena to 2 October 1981 at 2.15 p.m. and direct that the documents other than those referred to in paragraphs (a), (b) and (d)(ii) be produced to the Court at that time.