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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trade Practices Commission v T.N.T. Management Pty Ltd (No....

Details

AGLC: Trade Practices Commission v T.N.T. Management Pty Ltd (No. 1) [1981] FCA 160
Case: [1981] FCA 160
Decision Date: 18 SEPTEMBER 1981

CaseChat Overview and Summary

The Trade Practices Commission sought to enforce subpoenas duces tecum against several individuals, including Mr. Gouldstone, Mr. Prebble, and Mr. Shortell, among others. The respondents challenged the validity of the subpoenas, arguing that they were issued using the wrong form and that the return date was set in advance of the hearing, which they contended was improper under the applicable rules. The dispute was brought before the court for resolution, and the central legal issues involved the validity of the subpoenas and the court's power to direct a return day for subpoenas in advance of the hearing.

The court examined whether the use of the wrong form of subpoena constituted an irregularity and whether the court had the power to set a return date before the hearing. The court found that the use of the incorrect form of subpoena did indeed constitute an irregularity. However, it also determined that the court had the authority to direct a return date for subpoenas to produce documents, even if that date was set before the hearing. Despite these findings, the court held that no special prejudice had arisen from the use of the incorrect form, and thus, the Trade Practices Commission should be excused from the non-compliance with the applicable rules.

In its decision, the court ordered that the Trade Practices Commission be excused from complying with the applicable rules regarding the form of subpoena. It also confirmed that the fixing of a return date in each subpoena in advance of the hearing was effective. The hearing concerning the subpoenas was to proceed in accordance with the current rules of the court. The court dismissed the summonses to set aside the subpoenas, except for certain specified documents and in the case of Peter Rochfort, where the summons to set aside the subpoena was dismissed with costs. Specific documents that did not need to be produced were identified, and the subpoena directed to Peter Rochfort was stood over for a later time to be answered.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.