ale! fmm wy IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) NO. G.44 of 1978 GENERAL DIVISION } BETWEEN: TRADE PRACTICES COMMISSION Plazrntiff AND: T.N.T. MANAGEMENT PTY. LIMITED First Defendant BRAMBLES HOLDINGS LIMITED Second Defendant MAYNE NICKLESS LIMITED Third Defendant YOUNGS TRANSPORT PTY. LIMITED Fourth Defendant ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED Fifth Defendant EXPRESS FREIGHT PTY. LIMITED Sixth Defendant ASSOCIATED STEAMSHTPS PTY. LTD Seventh Defendant IPEC HOLDINGS LIMITED E1lghth Defendant INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED Ninth Defendant. FRANKI J 19 November 1981 SYDNEY. 2. REASONS FOR JUDGMENT On 4 September 1981 a subpoena for the production of certain documents, returnable on 10 September 1981, was issued from this Court to Mr. P. Rochfort. On the return day of the subpoena Mr. Rochfort was represented by senior counsel and a number of objections were taken to the subpoena. A summons to set aside the subpoena had been taken out by Mr. Rochfort. On 10 September 1981 Bowen C.J., before whom the subpoena came, made certain orders and on 18 September he delivered reasons for his judgment of 10 September 1981 and also detailed reasons wherein he dealt with a number of questions going to the validity of the subpoena served upon Mr. Rochfort and also subpoenas served upon certain other persons. His Honour pointed out that 21t was not argued that the subpoena addressed to Mr. Rochfort was too wide in its terms and held that the subpoena addressed to Mr. Rochfort should not be set aside but that he should answer 1t. When Mr. Rochfort answered the subpoena further submissions were made that certain of the documents within the terms of the subpoena were not in his personal possession. The Chief Judge on 2 October 1981 held that certain of the documents in question were within the custody, possession and control of Mr. Rochfort. An appeal was brought to the Full Court of this Court by Mr. Rochfort from this order of the Chief Judge of 2 October 1981 but no appeal was brought from the judgments of the Chief Judge of 10 and 18 September 1981. The appeal was dismissed on 4 November 1981. 3. The proceedings in which the subpoena was issued was listed before me on 5 November 1981 and on 12 November 1981. On 5 November 1981 I was informed by senior counsel for Mr. Rochfort that an application for special leave to appeal from the judgment of the Full Court of thas Court given on 4 November 1981 would be made to the High Court and I was asked to grant a stay in the same terms as that granted by the Chief Judge. On 12 November 1981 I was informed by senior counsel for Mr. Rochfort that the application for special leave would be made to the High Court on 4 December 1981 and I extended the stay which I had made on 5 November 1981 untal further order. The history of these proceedings, which commenced on 25 May 1978, has shown that they are regarded by all parties as being of great importance and that one must not be surprised 1f matters of significance arising in interlocutory proceedings become the subject of appeal. I granted the stay on the basis that 1t was the desire of all parties, including the Trade Practices Commission, that an appropriate stay should be granted. If the application for special leave to the High Court is refused or if the stay is removed the question will arise whether the Court has power to allow the Trade Practices Commission to inspect all or any of the documents the subject of the subpoena to Mr. Rochfort. 4, All parties agreed to my suggestion that it would be a convenient course for me to decide that question without further delay. My purpose in so doing was to facilitate the matter, which was commenced on 25 May 1978, getting to trial. Senior counsel for the Trade Practices Commission posed the question for my determination as " has the Court power to permit inspection by a party of the documents produced in answer to the subpoena?". This question was to be answered upon the basis that assumptions are made that the documents are relevant and that they have been produced to the Court. Senior counsel for the Commissioner presented two arguments, the first being that inspection, subject to the control of the Court, was a necessary corollary to production and secondly, that the Court should follow the judgment of the Court of Appeal of New South Wales in Waind v. Hill (1978) 1 N.S.W.L-R. 372 ("Waind's Case") in particular the reasoning at pp.378-386. It was also submitted that that case was 1n accord with the judgment of Samuels J.A. in Maddison v. Goldrick (1976) 1 N.S.W.L.R. 651 at p.666. Senior counsel for Mr. Rochfort directed my attention to the judgment of Blackburn J. in McAuliffe v. McAuliffe (1973) 4 A.C.T.R. 9; Elder v. Carter 25 Q.B.D. 194: Burchard v. Macfarlane [1891] 2 Q.B. 241 and The Commissioner for Rallways v. Small (1938) 38 S.R. 564 at 573~574. I am clearly of the opinion that the Court does have power to make available relevant documents to a party where 5. those documents are produced to the Court in answer to a subpoena by a person not a party to the litigation notwithstanding that that person objects both to the production of the documents to the Court and to the documents being made available to the party or parties. Before I deal with the authorities I have mentioned it seems appropriate to note the views expressed by the Full Court of this Court in Territory Ford Pty. Limited v. Michalowsky (unreported) 30 October 1981. An order for discovery for documents against a person not party to proceedings had been made under a rule of the Supreme Court of the Northern Territory and the question arose whether that rule was ultra vires. The Court dismissed the appeal and after referring to Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] A.C. 133 said at pp.13-14: "So understood, the 'mere witness' rule seems more attuned to days when surprise and ambush were seen as unavoidable incidents of Litigation than to modern concepts of practice and procedure aimed at ensuring that there be adequate preliminary access to information and that relevant materiz1al be before the Court." It also said at pp.14~15: "It is, of course, desirable that any interference with the rights and convenience of strangers resulting from court procedures be limited to what is necessary or desirable an the pursuit of justice in the courts. The rights and convenience of the citizen must however be subjected to what 1s necessary for the due and proper administration of justice. As a matter of course, strangers to litigation are required to produce documents to, or to attend to give evidence before, the courts. It 1S common procedure of some courts, 6. including the Federal Court of Australia and the Supreme Court of New South Wales, to enable preliminary access to be obtained to documents whose production has been subpoenaed by making the subpoena returnable on a day before the actual hearing commences (see, for example, Trade Practices Commission v. T.N.T. Management Pty. Ltd. Federal Court of Australia (Bowen C.J. 18/9/1981). A procedure to obtain discovery of documents against strangers to litigation may well, in some circumstances, be conducive both to a party's having an adequate opportunity to prepare his case and to the efficient administration of justice." The reference to Trade Practices Commission v. T.N.T. Management Pty. Ltd. 1s a reference to the decision of Bowen C.J., to which I have referred, and from which no appeal was brought. In Lucas Industries Ltd. v. Hewitt (1978) 18 A.L.R. 555 a Full Court of this Court heard an appeal from a judgment in which a subpoena duces tecum had been set aside by a judge of the Supreme Court of Victoria in an action for infringement of a patent. The subpoena had been issued to a person who was not a party to the action requiring him to produce documents prior to the hearing. An order had been made that " 'expert evidence in the action be by affidavit with the usual rights of cross-examination and the affidavits of each party in chief be filed and served on or before 13 September 1976". Smithers J., with whose judgment Bowen C.J., and Nimmo J. agreed, reached the conclusion that the appeal should be upheld and at pp.566 and 567 his Honour said: 7. "I see nothing in any of the authorities to throw doubt on the principle that when, according to the nature of any particular proceeding, considerations of justice and convenience require production of relevant documents at some particular time, whether before or after trial, production should then be ordered. So far as this case is concerned, 1f there are relevant documents the contents of which would be proper material for expert comment and opinion and they are not produced before the trial, then when the documents are ultimately produced the experts would have to consider them at that stage and any comments and opinions arising in respect to them would have to be made the subject of further affidavits, presumably on leave being obtained." And at p.568: "It 1s clear that production at this stage of the documents sought may assist the appellant in cross-examination of the defendant's witnesses. It may give him information as to the contents of documents and thereby enable him to cross-examine the respondent Howlett and perhaps other witnesses free from the risks involved in calling for and reading documents of unknown content, and being required to tender them in evidence, whether they be favourable or otherwise." Commencing at p.569 his Honour considered an argument of the respondent that the subpoena was an attempt to subject the respondents, who were not parties to the action, to an obligation to make discovery. His Honour referred to Elder v. Carter (supra) and Burchard v. Macfarlane (supra) and The Commissioner for Railways v. Small (supra) and certain other authorities. At p.571 his Honour set out a passage from the judgment of Jordon C.J. in The Commissioner for Railways v. Small (supra) which ancluded the following: 8. "If the witness produces the documents, he produces them to the court and not to the parties. He may, 1f he choose, state that he objects to their beung handed to the parties for inspection. If so, 1t is for the judge to make such examination of them as he thinks proper, and he may order such of them as he considers relevant to be read, or handed to the parties for inspection, as he may think desirable, with a view to their being tendered in evidence: Burchard v. Macfarlane [1891] 2 QB 241 at 247-8." The judgments in Lucas Industries Pty. Ltd. v. Hewitt (supra) clearly proceeded upon the basis that the Judge had power at his discretion to allow inspection of documents produced by a person not a party to the proceedings in answer to a subpoena. It is by no means clear to me that Blackburn Jd. in McAuliffe v. McAuliffe (supra) held that the Court had no power to allow inspection of such documents - see page 11 lines 16 to 23. I am bound by the views expressed in Lucas Industries Pty. Ltd v. Hew1tt (supra) and I consider that those views govern the questions which is before me. It 18 appropriate to set out a passage from the judgment of Moffitt P., in Waind's Case at p.384. Hutley and Glass JJ.A. agreed with the judgment of Moffitt P. "It is accepted that the documents should not go beyond the judge against objection of the owner, unless there is valid reason to do so. It is clear that it can only be legitimate to do so, so far as it 1s necessary in the proper conduct of the litigation. It is difficult to 9. see why to do that which is 'requisite for the purpose of justice' should be restricted by some arbitrary limit. Of course, the concept of what is reguisite for the purpose of justice and how the compromise between the requirements of justice between litigants and the rights of stranger should be met, may change and, indeed, be different now from the concepts of last century, just as concepts as to what 1s appropriate between parties has changed in favour of fuller disclosure of relevant matters." As to preliminary discovery in the Federal Court, see Order 4 rule 17. It is sufficient at this stage to say that I am satisfied that the Court has power in an appropriate case to permit a party to inspect documents produced by a person not a party to the proceedings. The question of whether I will permit the inspection of any of the documents produced by Mr. Rochfort , does not fall for consideration at present. I reserve the questions of costs of the hearing before me on 16 November 1981. I certify that this and the EigdT (8] receding pages are a true copy of the Reasons for Judgment herein of his Honou Mr. Justice Fran ey Le en ee Associate Dated: |4 = I| ~ S| a er Rr pp eee