Trade Practices Commission v TNT Management Pty Ltd

CATCHWORDS

Practice

Evidence

Subpoena duces tecum to corporation in

action to recove; a penalty

Whether subpoena should be set

aside

Whether privilege against self incrimination

exists.

TRADE PRACTICES COMMISSION v. T.N.T.

MANAGF,MENT PTY. LIMITED & ORS.

No. G.44 of 1978

Franki S.

1 March 1984

Sydney

i	IN THE FEDERAL COURT OF AUSTRALIA	)
I

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G.44 of 1978
GENERAL DIVISION	)
Between:

Plaintiff

COMMISS ON

PRACTICES

TRADE

-and-

T.N.T. MANAGEMENT PTY. LIMITED	First Defendant
BmlBLES HOLDINGS LIMITED	Second Defendant
MAYNE NICKLESS LIMITED	Third Defendant
YOUNGS TRANSPORT PTY. LIMITED	Fourth Defendant
ANSETT TRANSPORT INDUSTRIES	Fifth Defendant
(OPERqTIONS) PTV. LIMITED

EXPRESS

FREIGHT

PTY. LIM 2

Sixth

Defendant

ASSOCIATED STEAMSHIPS

PT'J LIMITED

Seventh

D f dant

IPEC HOLDINGS LIMITED	Eighth Defendant
INTFXSTATE P-UCEL EXPRESS CO. PTY.	Nlnth Defendant
LIMITED

O R D E R S

JUDGE :

Franki J.

DATE OF ORDERS: 1 March

1984 and 8 March 1984

Sydney

MADE:

THE COURT ORDERS THAT:

1.	Each subpoena be'set aslde.

2. The

plaintiff

pay

the

costs

of each

defendant

these

appllcatlons.

. - - . .

- .

CATCHGJORDS

Practice -

Evidence

Subpoena duces tecum to corporation in

action to recove; a penalty - Whether subpoena should be set aside - Whether privilege against self incrimination exists.

TRADE PRACTICES CO~IISSIOM

v. T.N.T. MANAGEMENT PTY. LIMITD & QRS.

NO. ~ . a 4

of 1978

Franki J.

1 March 1984

Sydney

IN THE FEDERAL COURT

AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY	)	No.	G 44	of	1978
GENERAL DIVISION	1
Between:

TR4DE PRACTICES COMMISSION

Plaintiff

-and-

T.N.T. MANAGEMENT PTY. LIMITED	Flrst Defendant
BIWMBLES HOLDINGS LIMITED	Second Defendant
MYNE NICKLESS LIMITD	Third Defendant

YOUNGS TRANSPORT

PTY. LIMITED

Fourth Defendant

.ANSETT TRANSPORT INDUSTRIES	Fifth Defendant
(OPERATIONS) PTY. LIMITED

EXPRESS FREIGHT PTY.

LIMITED

Sixth Defendant

ASSOCIATED STEAMSHIPS PTY. LIMITED	Seventh Defendant
IPEC HOLDINGS LIMITED	Eighth Defendant

INTERSTATE	PARCEL	EXPRESS	CO.	PTY.	Ninth	Defendant
LIMITED

O R D E R S

JUDGE

Franki J.

DATE OF ORDERS:	1 March 1984 and 8 March 1984
rWERE MADE:	Sydney

THE COURT ORDERS THAT:

Each subpoena be' set aslde.

The plaintiff pay tk? coszs of ea& deftndant in thlse

applicatlons.

__ .. - - ...

IN THE FEDERAL COURT

OF AUSTRALIA

)

NEbl SOUTH WALES DISTRICT REGISTXY	)	No. G.44 of 1978
GENERAL DIVISION	)
Between:
TRADE PRACTICES COMMISSION	Plaintiff

-and-

T.N.T. WWAGEMENT PTY. LIMITD	First Defendant
BRAMBLES HOLDINGS LIMITED	Second Defendant
MAYNE NICKLESS LIMITED	Third Defendant

YOUNGS TRANSPORT

PTY. LIMITED

Fourth Defendant

ANSEIT TRANSPORT INDUSTRIES	Fifth Defendant
(OPERATIONS) PTY. LIMITED
EXPRESS FREIGHT PTY. LIMITED	Sixth Defendant
ASSOCIATED STEAMSHIPS PTY. LIMITED	Seventh Defendant

IPEC HOLDINGS LIMITED	Elqhth Defendant
INTERSTATE PAXEL EXPRESS CO. PTY.	Ninth Defendant
LIMITED
1 March 1984

REASONS FOR JUDGHENT

FRANK1 J.

Almost at

the

concluslon of the case for the Trade

Practices Commission, a subpcena duces tecum ~7as

served on each

__ - _-

- -

defendant,

wlth che -exception of the fourch asfendant. ZZCh

required the defendant served by its proper officer to ?roduse

certain documents.

Each of tht dzfendants so served chen r.3fie

application that the subpoena served on it be set aside. With

the consent of all the parties

I commenced to hear all chese

applications together but, because of difficulties which arose,

subsequently separated the hearings but

It is convenlent to deal

with all

applications in this judgment. Senior counsel for the

Commission outlined the reasons for

the issue of the subpoenas at

I	9015-9016.

I proceed to an examination of whether or not a subpoena

duces tecum may

be issued against a defendant in an action for

penalty where the purpose of the issue

of the subpoena must be to

assist the plaintiff in its action. Counsel for the second

defendant submitted that the issue of the subpoena was Improper (9196) and its use constituted a serious impropriety In tk?e conduct of the case (9279). So far this case has been noteworthy

for the determination with which it has been fought by the

defendants.

This

is clearly

evident

from

the

number

interlocutory applications and appeals which have been made. I

consider that it was not reprehensible to issue these subpoenas

so as to raise the question of whether they had to be ansrrered

and, if so, how. Until they were issued the case had proceeded

upon the basis that discovery could not be obtained nor

an~wsrs

interrogatories

compelled

from

a person

against

whom

proceedings for

Fenalty had been brought. Indeed thls

was

. - . ._

- -

common ground in

an-action by t&

second defendant agalnst the

Commission and its Chairman Ifwhich I

delivered ~udg~ent

on 37

October

1980

((1980) A.T.P.R.

4 0 - 1 7 9 ) .

-. . . -

. .

On 6

September 1983, in

unreported judgment in

ation

to e

:arlier subpoenas which had been issued to the

defendants in this case,

I referred to Pvneboard Ptv. Ltd. v.

Trade Practices Commission (1983)

57 A.L.J.R.

236 at p.238 where

Mason A.C.J., Wilson and Dawson JJ., in

joint judgment, said

they were

l '...

content to assume, without deciding, that the

privilege against exposure to

... a civil penalty is available to

a corporation in Australia".

I said that

I intended to proceed

upon the basis that this privilege against exposure to	a civil
penalty is available to a corporation.

Davies J. in Trade Practices Commission

v. Georse Weston

Foods Ltd. (1979)

A.T.P.R.

40-114 considered the question of

whether

the

defendant,

an -action for a

penalty

for a

contravention of 5 . 4 5 of the Act, should be ordered to give discovery or to answer questions by way of interrogation. His

Honour

decided

that he

ordinary

rules

discovery

and

interrogation did not apply because

it was improper to call upon

the defendant

CO disclose facts which make it liable to payment

pecuniary penalty. Although his Honour used

the

word

"improper", I

doubt that his Honour was saying

that

there was

anything reprehensible in the Comnlission seeking discovery and

answers

interrogatories.

least

the subject

proceedings

_ .

the likelihood of

an appeal by one party or another 1 s real and

. .

it is not unreasonabie for

a l l partles to keep the possibility

appeal under consideratlon.

4 .

Pvneboard Ptv. Ltd.

v. Trade Practices Commission,

suDra, Mason

A.C.J.,

Wilson and Dawson JJ. at p.238 had referred

to the decision of the English Courr; of Appeal in TriDlex Safetv

Glass Co.

Ltd. v.

Lancesave Safety Glass (1934) Ltd. C19391

K.B. 395 and said:

"The English

Court of Appeal has held that the

privilege of refusing to answer a question on

the

ground

that

the

answer

may

tend

incriminate is available to corporations".

Their Honours had referred to the position in America

and to the position in relation

the Fifth Amendment to the

Constitution. Brennan

at p.248 said it was unnecessary to

consider the question of whether

the privilege against

self-incrimination applied to corporations. Murphy

J. likewise

did not have to decide the question although

expressed the

view that the history and reasons for prlvilege did not justlfy

Its extension to artificial persons such as corporations but

accepted t'nat

a different vlew had been taken in TriDlex S-fetv

Glass Co. Ltd. v. Lanceaave Safetv Glass (1934) Ltd., m. His Honour also referred to the decision of the House of Lords in F.io

Tinto

Zinc

CorDoration

v. Westinuhouse Electric CorDcration

C19787 A.C.

547, a decision in which

Triplex Safetv Glass Co.

Ltd. v. Lancecrave Safetv Glass

(1436) Ltd. had been applied.

- -.

- .- . . .

. .-.

In an interlocutory appeal In

. thls case which vas

ultimately determined by the HiFh

Court, Rochfort

Practices Commission (1983) 57	A.L.J.R. 31 at p.36, Mason	J.
said:

“However, in England it has been affirmatively

decided that the

privilege

is available

corporations (Triples Safetv Glass Co. Ltd.

Lanceuave Safetv Glass

(1934) Ltd. C19393

K.B.

395; Rio Tinto Zinc Corooration)

. . . ‘ I

Sitting

single Judge of the Federal Court,

consider that I am bound by the cases of Triples Safetv Glass and

Rio Tinto

Z m c Corooration.

Senior

counsel

for

the

Commission

said

the

commencement of my hearing these applications (9175) that, when each subpoena was served, the Commission sent a covering letter which Informed the defendant that, if the defendant intended to argd that it should be relieved from answering the subpoena on

the ground that it was incriminating, the Commission would be

prepared to argue the point without requiring the producclon

the relevant documents at that stage.

The Commission also sald

that it was not seeking any documents to which professional

privilege applied or any documents which	had been discovered by
the Commission.

Senior counsel for the Commission submitted (9181) that

“the existence of

privileqe against self-incrimination could

_ .

never be

ground for settinq aside

a subpoena, for the very

reason it is only when r;he privilege

1s Invoked and

r;he cocrL

rules on it that the question arises".

He also said

he would

accept such a claim without proof

if made by counsel and that any

such claim could be made while reserving the right	to argue that
It was not necessary.

Senior counsel

for the Commission also said that it

would

what

might

called

"notional"

claim

for

privilege which did not involve

a defendant exposing itself to

any comment for making the claim

(9246).

Counsel for certain of the defendants took what might be

described as a reserved position that, if they had

to answer the

subpoenas, they would make a claim for privilege, whilst counsel

for certain other defendants refused

to make such a claim saying

that It was not necessary

(9182, 9198).

All the subpoenas were, in general, In a

smilar form.

They sought to require the defendants to produce to

tine Court a

great number of documents, a l l of

which presumably were thouTht

by the Commission to be documents relevant to prove its case.

A number

questions

received

some

consideration,

particularly in relation to Mayne Nickless, which ultimately

not require any detailed consideration by

me,

for example,

.. ..

- .

. .

._ ._

whether,

the subpoena was properly issued and had to

answered, it

was oppressive in one

way or another.

Counsel for the second defendant summarised his argument

as :

"It is a deeply

entrenched rule

that

the

courts

will

not

lend

the

aid of

their

processes

for

discovery

or production

documents in proceedings for a penalty.

This

rule is segarate and distinct from, although historically related to, the existence of the

privilege against exposure to

a penalty."

I agree with the first sentence

of this argument but not

with

the second sentence.

consider that there is binding

authority, at least in the absence

of waiver, for the view that

the Court will not lend aid of its process for discovery or

production of documents in proceedings for

a penalty, but that

this rule rests on the existence of privilege agalnst exposure to

a penalty.

A case where the whole action is one

for a penalty must

be distinguished from a case where the question of a penalty does not arise directly in the action. This question was dealt with by Deane J. in Refrlaerated Express Llnes (A/asial Ptv. Ltd. v.

Australian Meat and Live-stock Corporation

( 1 9 7 9 )

42 F.L.R.

204.

In that case the applicant sought injunctive relief and damages based on alleged contravention of the provlsions of Part IV of

the Trade Practices

Act 1974 but it was not a claim for cl

penalty.	-Deane S . distingulshed the two categories and said at
2 .207 :

"It is

a well-established principle that a

defendant in proceedings which are solely for

the recovery of a pecuniary penalty should not

be ordered to disclose information or produce

documents which may assist in establishing his

liability to the penalty (see

, generally, per

Isaacs J. in

v. Associated

Northern

Collieries

(1910)

11 C.L.R.

738,

pp.741-748, Naismith

v. McGovern (1953) 90

C.L.R. 336,

at pp.341-342

and

Martin

Treacher (1886) 16 Q.B.D. 5071."

After distinguishing that category of cases from that

where the proceedings were not for

the recovery of a penalty but

to prevent and redress civil injury, his Honour said

at p.208:

"In the former case, that is to say in a mere

action for a penalty, a court should, in the

absence

statutory

provision

tohe

contrary, refuse to make any order

all

against

the

defendant

for

discovery

production of documents (emphasis added) or

provision of

information for the reason that

the whole and avowed object of the proceedings

being the imposition and

the recovery of a

penalty,

order

for

the

productlon

documents or provision of informatlon against

the defendant can, so far as che prosecutor of

the action

1 s

concerned, properly have no

. -

other

intended

consequence

( s e e

Associated

Norrhern

Collieries

(1910)

C.L.R. at p.742). Tnis is a

broad

and

unqualified &le

whose origins are apparently

to be found in a reluctance

on the

part of the

Court of Chancery to lend the aid of its

. ..

In L v. Associated Northern Collieries,

supra, the

applicant sougl~t penalties agalnst various defendants in

a civI1

action

under

ss . 4 and

6 of

the

Australian

Industries

Preservation Act 1906, No. 9.

Isaacs J., as he then was, drew

the distinction between a civil actlon to prevent or redress

civil wrong or redress

a civil in~ury

on the one hand and

civil

action to	recover a penalty on	the other. ht p.742 his Honour
said:

"It does not require in such a case the oath of the defendant to establish the fact that

the production of the documents

would tend to

penalize him.

The Court can see

the effect of

discovery from the

nature of the proceeding."

At p.747

his Honour referred to Martin

v. Treacher

(1886) 16 Q.B.D. 507 at p.513 and Mexborouah v. Khitwood Urban

District Council C18977 2 Q.B. 111, at p.121 and said that the

proper course was

"to stop the matter in limine". At p.745 his

Honoir, after making reference to an American case, said:

"The case is

an illustration of the rule that,

at whatever stage it appears to

the Court the

discovery

may

expose

the

d fendant

penaltles, no order will be made."

As a

single Judge it may be sufficient to do no

than refer to the words which

I have quoted in the

~udqment

Deane J. which were quoted and accepted without qualificacion by

Ma50n A.C.J., Nllson and Dawson

JJ.

in Prneboard Ptv. Ltd.

Trade Practices Comrnlssion (1983) 57 A.L.J.R. at p.238

to roach

the concluslon that there is no dlfference between the

principles

10.

applying to

an order for discovery, production of documents or

the provision of informatlon in

a case in

rchich a penalty 1 s

sought. However,

have dealt more fully with the various

submissions because of the detalled aqrguments presented to me and because of, the general history of appeals in this case. Senlor counsel for the Commission also submltted that I was not

concerned with pre-trial proceedlngs but with a subpoena issued

during the conduct

of the

case and that the Commission wished to

test the question

of whether privilege applied to

a corporation.

None of

these cases dealt with the possible effect of

waiver.

The category of cases where the object of the actlon is

impose and recover

penalty

on a defendant is to be

distii-~guished

from cases such

as Trivlex Safetv Glass Co. Ltd.

Lancecrave Safetv Glass (1934) Ltd., suDra, and Rio Tinto Zinc Corporation v. Kestinuhouse Electric Corporation, suDrz, cases very relevant to the question of whether privilege agalnst self-

Incrimination extends to

a corporation.

Senior counsel for the Commission sought to distingulsh

an appllcation for discovery or to answer lnterrogatories from

the issue of a subpoena. In my opinion

I can see no difference

principle. ..

_ _

In Cavendish v. Csvlndish C19263 P.

10, Lord Herrlvale

11.

considered the case where

a subpoena duces tecum had been served

on a husband respondent in a petition for divorce requiring him

to produce certain documents.

In that case the only issue was

one

adultery and it was held that the subpoena must be

discharged on the ground that

an order for discovery could not be

made against

party to the divorce proceedings where it was

sought for no other purpose than to prove that party guilty	of
adultery.

The decision in this case was based upon the

reasonmg

in Redfern v.

Redfern C18911

P. 139 where an application for

discovery was refused. It

was held that a party

in a petition

for divorce, where the only issue was that

of adultery, may not

be	called upon by compulsory process to provide evidence in

support of the charge in that case

by giving discovery.

v. Nast and Walker E19727

2 W.L.R. 901, Redfern

v. Redfern, sucra, was held to be no longer the law In England.

This was upon the basis chat then discovery and interrogatorles

could be obtained in such

an action.

Fliumore on Evidence, McNaughton Revision,

Vol. VIII,

para. 2264,

deals with the question of production

of documents

and expresses the view that production of documents in response

to a subpoena may be-refused under tine protection of privilege.

Senior counssl for the Commission referred

t o &

-. .

12.

Adams C19651 V.R. 563, a decision of the Full Court

of the

Supreme Court of Victoria, in which it was held that an accused

person who had elected to give evidence may be compelled to

produce relevant documents which are in his possession and

his

control.

In my opinion the judgment in that case rested upon the

statutory provisions in s.399 of the Crlmes Act

1953 (Vic.) which

contained a provision that

a person charged with

a criminal

offence who had chosen to enter

a witness box and give evidence

may be asked any question in cross-examination notwithstanding

that it would tend to

incriminate him as to the offence charqed.

may be that Adams' Case, in the light

5.399, is some

authority for the proposition that, once

a defendant in criminal

proceedings chooses to give oral evidence, he is required to

produce documents which are in	h s custody and under his control.
I note that at p.565 O'Bryan	J., with whom Hudson and Adam JJ.
agreed, said:

"Wnere notice to produce has been glven and the defendant is not a witness the proper

course is for

the

prosecution

give

secondary evidence of

a document of which

notice

has

been

given

and

whlch

is not

produced.

O'Bryan J. referred to the case of Trust Houses Ltd.

Postlethwaite (1964) 109 J.D. 12.

that

czse,

a ~olnt

judgment, Viscount Caldecote C.J.,

Hu~phreys and Birkett

JJ.

considered the question

of whether a defendant in a crimlnal

. . ..

- .- -

action could be compelled by

a court against his

ohm

wish to

produce a document.

The Court said that the defendant could not

be	called upon to "make any admission or any statement or to

produce

any

document

which,

his

opinion,

may

tend

incriminate him".

No distinction

was

drawn

between

the

production of	a document and any other evidence sought from	a
defendant.

I made it clear during the hearing of these applications

and

I reiterate that

I was not and am not considering the

question of the position if

a witness has chosen to

enter the

witness box and give evidence. That may	or may not arise for
consideration later in this czse.

not think it is necessary to deal at length with the question of waiver. The only walver alleged was by

the third

I do

defddant.

It was argued that the tender of exhlbits 2 8 , 29 and

30 constituted

a waiver of privilege. Senior counsel for the

Commission had referred me to Great Atlantic Insurance

Co.

Home Insurance Co.

C19817 2 A11 E.R. 485,

a case relating to

discovery, where two paragraphs of

a document had been read to

the Court by a party and that party

was	held to have Giaived any

legal professional privilege in relation to the whole of that

document. Exhibits

28,

and

30 are letters from Tradestock

Fty. Ltd. to the thlrd derendant. The sub2oena whicn 1.7a.5 issue3 was of such a g-nerczl nature that, whether or not the tender of

exhibits 25, 29 and 30 could support some linited form of

walver,

I think that it could not support

a claim thar: all privileqe hzd

14.

been waived. Senior counsel for the Commission said that, if

held that

partial waiver was not sufficient to destroy all

privilege in relation to the productlon of documents, he would not ask me to attempt to dissect out what part of the subpoena

might have	to be answered because of the act	of	waiver (9293,
9296).

I express no view

on whether or not exhibits

2 8 , 29 and

30 could constitute any partlal waiver of privilege against

exposure to a penalty.

In the circumstances I order that each subpoena be set aside. I will allow submissions to

be made concernlng costs.

Associate

[1984] FCA 47

1 Mar 1984