A In T NEW bon Te tee ot t HE FEDERAL COURT OF AUSTRALIA ) SOUTH WALES DISTRICT REGISTRY ) No. G204 of 1982 NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION ) BETWEEN: JUSFRUTE LIMITED Applicant \, AND: RONALD MOCORE BANNERMAN First Respondent AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE Third Respondent ORDER JUDGE MAKING ORDERS: Franki J. DATE OF ORDERS: 12 April 1983 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The notice of motion of 8 March 1983 seeking further and proper discovery is dismissed and the applicant is to pay the costs of the respondents of that motion. The subpoenas to each of the respondents dated 18 March 1983 are set aside and costs of each respondent in its or his notice of motion to set aside the subpoena to it or him 1s to be paid by Jusfrute Limited. y IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G204 of 1982 GENERAL DIVISION ) BETWEEN: JUSFRUTE LIMITED Applicant RONALD MOORE BANNERMAN First Respondent E AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE Third Respondent 12 April 1983 REASONS FOR JUDGMENT FRANKI J. This judgment is delivered in a notice of motion of 8 March 1983 filed by the applicant for "further and proper discovery" and in notices of motion of 18 March 1983 filed by each of the respondents to have certain subpoenas set aside. The Chairman of the Trade Practices Commission issued a notice on or about 12 October 1982 under s.155 of the Trade Practices Act 1974 (the Act) requiring Jusfrute Py Limited to answer certain questions and produce certain documents. Similar notices were issued to four other companies namely Sunburst Foods Pty. Limited, Elmer Products Pty. Limited, United Beverages Pty. Limited and Regency Foods Pty. Limited. The notices recited that the Chairman, having reason to believe that the applicant was capable of furnishing information and producing documents relating to matters that constitute, or may constitute, contravention by producers of orange juice products in Australia of ss.52(1), 53(a) and 55 of the Act, required the company to whom the notice was issued to furnish the information set out in Schedule 1 to the Notice and to produce the documents set out in Schedule 2 to the Notice. In an endeavour to have the matter heard at an early date the Court adopted a timetable which commended itself to the parties. Each of the five companies, including Jusfrute Limited (hereinafter called "the applicant"), commended proceedings, which by amendment, were for a declaration under s.163A of the Act against Mr Ronald Moore Bannerman, the Chairman of the Trade Practices Commission (the Commission) and against the Commission seeking to relieve the applicant from complying with the notice upon the following grounds:- 1. Section 155 of the Act is not a valid law of the Commonwealth. 2. Section 155 does not empower a notice to be directed to a corporation itself suspected of a contravention of the Act. 3. Section 155 does not oblige an addressee of a notice to answer questions or produce documents the answers to which might tend to expose it to a penalty or forfeiture. 4. The notice purports to require the discovery of confidential information the property of the applicant. 5. The notice is oppressive and unreasonable. On 14 February 1983 leave was granted to add John Primrose, an employee of the Commission, as the third respondent and leave was also granted to amend the application by adding a claim that the third respondent be restrained from copying, making, acting upon or making any use of any information, materials, documents, data or reports concerning the affairs of the applicant obtained in confidence. The amendment also sought orders restraining the first and second respondents from, inter alia, using any information which the third respondent had obtained in confidence. It also sought certain consequential orders for delivery up, damages and costs. A consent order was made for discovery and inspection by all parties and on 25 February 1983 a list of documents verified by the Crown Solicitor was filed by the solicitor for the respondents. The schedule in the list set out in Part 1 the various documents numbered 1.1 to 1.14 inclusive and in Part 2 four documents numbered 2.1 to 2.4 inclusive for which legal professional privilege was claimed. The affidavit verifying was sworn on 24 February 1983 by Mr Mervyn Ian Searles, a member of the staff assisting the Trade Practices Commission. Further affidavits were sworn on 15 March 1983 by the first and third respondents in further verification of the list of documents. Correspondence took place between the solicitors for the parties to which I will refer later. On 8 March 1983 a notice of motion was filed by the applicant seeking orders that the respondents give "further and proper discovery". Similar applications were made by the other four companies and all five applications were heard together by consent and it was agreed that my judgment in the application by Jusfrute Limited should be treated as given in all five applications. On 10 December 1982 the solicitor for the respondents answered an inquiry in relation to the claim of confidence. On 18 March 1983 the applicant caused a subpoena to be issued to each of the respondents seeking the production of documents in a large number of categories and on the same day each respondent filed a notice of motion to have the relevant subpoena set aside. Counsel for the applicant conceded that he sought to have the subpoena answered in support of the notice of motion seeking further and proper discovery. Similar subpoenas were served and applications to set them aside were made in the other four applications. The correspondence to which I have alluded was mainly by telex between the solicitors for the applicant and the solicitor for the respondents. One issue presented by the applicant depended upon a claim for professional privilege for the documents in the second part of the schedule to the list of documents. It was submitted for the applicant that if any legal professional privilege had existed in relation to any of these documents it had been waived in a telex from the solicitor for the respondents dated 10 December 1982 which contained the following paragraph: "BRdvice in relation to your request was received from Sydney senior and junior counsel this morning. Counsel's advice is that no confidentiality attaches to the material provided to Mr Primrose. Mr Primrose is a member of the staff assisting the T.P.Cc. and attended the Council sub-Committee as an invited observer in the course of his duties as a member of the staff assisting the T.P.c. Whatever obligations as to confidentiality may exist between members of the Council and its sub-committee no such obligations as to confidentiality exist in relation to a person attending as an invited observer as was Mr Primrose. Any possible confidentiality that may exist in respect of Mr Primrose or the T.P.C., which is not conceded, could only prevent Mr Primrose and the T.P.C. from disclosing material obtained from the N.H. and M.R.C. to the world and to your clients' competitors in particular. Any possible confidentiality cannot prevent the T.P.C. from using such material for the purposes of its investigations under the Trade Practices Bet. Further, the material discloses 'an iniquity' so as to bring the material within the principles enunciated by Sheppard J. in T.P.C. v. Allied Mills Industries Pty Ltd and Others (1981) A.T.P.R. 40-204." In an endeavour to get the matter ready for an early trial, by consent, no party had sought to have pleadings in this matter. It was agreed that I should treat affidavits which had been filed in the application under s.155 as the allegations of the parties in the Notices of Motion now before me. The alleged breach of confidence arose in the following circumstances. Mr Primrose, the third respondent, was an officer of the Commission and he had attended a meeting of the Food Standards Committee working party on fruit juices of the National Health and Medical Research Council. Prior to the meeting of this Committee on 3 and 4 June 1982, Mr Primrose had received certain documents which it was alleged by the applicant were communicated to him in confidence but as an officer of the Commission. Privilege was claimed by the respondents for a document described in the list of documents as "Minute from J. Primrose to P. Cronin dated 8 December 1982" and numbered 2.1 upon the ground that "the document was prepared by J. Primrose for the sole purpose of being put before the Commission's legal advisers to obtain legal advice". The solicitors for the applicant alleged in a telex to the solicitor for the respondents on 3 March 1983 that it appeared likely that that minute was, at least in part, for the purpose of informing Mr Primrose's superior officer what had transpired and therefore it was not privileged. Mr Alexander, a solicitor in the office of the solicitor for the respondents, replied on 9 March 1983 that he had requested Mr Primrose on 8 December 1982 to prepare the minute so that he could advise the Commission and that he had forwarded the minute together with other relevant papers for the advice of the senior and junior counsel he had briefed the next day. Mr Sweeney, counsel for the applicant, referred to the paragraph in the telex of 10 December 1982, set out above, and argued that because the solicitor for the respondents had disclosed the nature of the advice it had received and had used the expression "an iniquity" any legal professional privilege attaching to the minute had been waived. It is not entirely clear that the telex sets out other than that counsel's advice was that no confidentiality attaches to the material provided to Mr Primrose. It may A not be inappropriate to note that the courteous efforts of the solicitor for the respondent to achieve an agreement in relation to discovery have resulted in material being provided which has formed the basis of an attack on the affidavits verifying the list of documents. Counsel for the applicant could refer me to no authority in support of his submission that the telex of 10 December 1982 had waived any privilege and I reject that submission. Acceptance of it often could result in producing an extraordinary situation. I see no reason to hold that the minute was prepared other than for obtaining legal advice from counsel. In my opinion it is to be treated in accordance with the views I expressed in Brambles Holdings Limited v. Trade Practices Commission, (1981) 3 A.T.P.R. 40-221 at p.43,013, where I said that I was satisfied that legal professional privilege attaches to a draft or copies of a document which is itself entitled to that privilege, at least if the existence of the draft or copy represents a reasonably necessary stage in the preparation of a document to which privilege attaches. I pass now to the question of a diary note of 9 December 1982 of a conversation between Mr Cronin, Assistant Commissioner, and a Mr Jackson, who is apparently an officer of the Commonwealth Department of Health and was the Chairman of the Food Standards Committee. This diary note was found after an enquiry by telex from the solicitors for the applicant of 3 March 1983 and it reads "Mr Jackson of N.H. and M.R.C. rang me concerning telex he received from Elmer and discussed the response to them". A copy of this note was provided with a statement expressing doubt whether it was subject to discovery. I consider that the request by telex, made on 17 March i983, to see the original is technically correct if the document should have been discovered and it seems that the original will be made available. I pass next to a document marked 1.3 in Part 1 of the Schedule entitled "Extract from file note dated 26 May 1982 by M.I. Searles". Here attention was directed to the word "we in that note and a request was made to the solicitor for the respondents for "Your assurance that the unreproduced portion of a document bears no reference or relation to orange juice". So far as I have been able to understand the argument for the applicant, it includes a submission that, in particular, because of the reference to "an iniquity", any material which bears upon the Commission's enquiries into matters relating to orange juice (or indeed perhaps any fruit juice) ought to have been discovered. I cannot see any reason why discovery should extend to all documents merely because they relate to enquiries by the Commission concerning orange juice (or other fruit juices). I pass to a consideration of a document referred to | 10. in Part 1 of the Schedule numbered 1.6 and described as an "Extract from minute to Commission dated 16 June 1982". TI am not satisfied that anything which should have been discovered was not discovered in relation to this document. I pass next to a consideration of documents marked 1.7 and 1.9 in Part 1 of the Schedule being extracts from minutes to the Chairman of the Commission dated 18 August 1982 and 29 September 1982 respectively. I see no reason to hold that anything further in relation to these documents, which was not discovered, ought to have been discovered. I next pass to consider the request for the discovery of certain files referred to in paragraph 7 of the telex of 3 March 1983. I can see no reason for declining to accept the statement by the solicitor for the respondent in his telex of 9 March 1983 that these files contained no documents relevant to any matter in question other than those which were specified in the list of documents. In paragraph 8 of the telex of 3 March 1983 a request was made in relation to any correspondence with or documents relating to communications with third parties. Some further documents, which it was said may be discoverable, were provided in answer to this request, but I am not satisfied that any further documents exist which should be discovered. ll. On 17 March 1983 the solicitors for the applicant sent a telex to the solicitor for the respondents making a request for further information and alleging that there must be further documents which ought to have been discovered. This request was only received in Canberra on the Thursday before this motion was to be heard by me in Sydney on the following Monday. Indeed counsel for the applicant sought to call Mr Alexander, a legal officer employed in the office of the solicitor for the respondents, as his witness to ascertain the answer to the questions posed in this telex. I refused this request which I regarded as extraordinary. Mr Sweeney, when asked, could not refer me to any authority where a subpoena in support of an affidavit for further and better discovery had been required to be answered. The applicant then sought to have Mr Primrose answer the subpoena to which I have referred and which was admitted to be only for the purpose of supporting the application for further discovery. A cardinal principle of discovery is, of course, that it is very difficult to attack the conclusiveness of an affidavit of discovery. If this were otherwise, it would be extremely difficult in many instances for litigation not to be intolerably delayed by proceedings which could only result in matters of extremely marginal importance being considered. At the end of his reply counsel sought to call a Dr Chandler, to whom [I will refer in my judgment in the notice of motion for further 12. amendment of the application. I refused leave to re-open and call Dr Chandler. I consider that it is not inappropriate to bear in mind the words of Menzies J. in Mulley v. Manifold (1959) 103 C.L.R. 341 at p.345, where his Honour referred to the purpose of discovery and noted that it was not directed "towards assisting a party upon a fishing expedition". See also W.A. Pines Pty. Ltd. v. Bannerman (1980) 3 A.T.P-R. 40-163. Notices of motion were taken out by the three respondents seeking to set aside the subpoenas. I refused to allow the subpoenas to be answered and I set them aside and order that the applicant pay the costs of each of the respondents. Counsel for the applicant referred to certain other aspects of the discovery which he said had not been dealt with by the respondents according to the rules. The Court has power if it appears that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be, or may have been, in the possession, custody or power of a party to order that party to file a further affidavit. (Order 15 rule 8). I regard this as a discretionary power. (See Australian Broadcasting Commission v. Parish (1981) 48 F.L.R. 292.) 13. In any event I consider that no useful purpose would be served by requiring any further affidavit. Likewise I do not think any useful purpose would be served by my dealing with a criticism made by counsel for the respondents of the way the documents referred to in part 2 of Schedule 1 of the applicant's list of documents failed to identify each document. (See generally William's "Supreme Court Practice" 2nd Ed. pp. 1486-1487). No question arose of any possible application of order 15 rule 3. I dismiss the motion for "further and proper discovery" with costs. op etree Rees aan tn en, mer A oA tna tesa, I certi*y 'hat this and the Lucha C72) preceding ~ages are a true copy of the Reasons for Judgement herein of his Honour Hr. Justice Atan <r Lima n54 Associate cA, IN THE FEDEKAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G203 of 1982 GENERAL DIVISION ) BETWEEN : SUNBURST FOODS PTY. LIMITED Applicant AND: RONALD MOORE BANNERMAN First Respondent AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE Third Respondent ORDER JUDGE MAKING ORDERS: Franki J. DATE OF ORDERS: 12 April 1983 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The notice of motion of 8 March 1983 seeking further and proper discovery is dismissed and the applicant is to pay the costs of the respondents of that motion. 2. The subpoenas to each of the respondents dated 18 March 1983 are set aside and costs of each respondent in its or his notice of motion to set aside the subpoena to it or him is to be paid by Sunburst Foods Pty. Limited. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY } No. G203 of 1982 GENERAL DIVISION ) BETWEEN: SUNBURST FOODS PTY. LIMITED Applicant le RONALD MOORE BANNERMAN First Respondent AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE Third Respondent 12 April 1983 REASONS FOR JUDGMENT FRANKI J. For the reasons set out in my judgment delivered today in a similar application by Jusfrute Limited, I dismiss the notice of motion seeking further and proper discovery with costs, set aside the subpoenas to each of the respondents dated 18 March 1983 and order that the applicant pay the costs of the respondents' notices of motion to set aside those subpoenas. @ASONS ot weet AT Tr, gustice frank | ° me AI AAG 7 | - Cae 6 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G205 of 1982 GENERAL DIVISION ) BETWEEN: ELMER PRODUCTS PTY. LIMITED Applicant AND: RONALD MOORE BANNERMAN Pirst Respondent AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE Third Respondent ORDER JUDGE MAKING ORDERS: Franki J. DATE OF ORDERS: 12 April 1983 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The notice of motion of 8 March 1983 seeking further and proper discovery is dismissed and the applicant is to pay the costs of the respondents of that motion. 2. The subpoenas to each of the respondents dated 18 March 1983 are set aside and costs of each respondent in its or his notice of motion to set aside the subpoena to it or him is to be paid by Elmer Products Pty. Limited. — - IN THE FEDERAL COURT OF AUSTRALIA ) Gos NEW SOUTH WALES DISTRICT REGISTRY ) No. G205 of 1982 GENERAL DIVISION ) BETWEEN: ELMER PRODUCTS PTY. LIMITED Applicant fe RONALD MOORE BANNERMAN First Respondent AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE Third Respondent 12 April 1983 REASONS FOR JUDGMENT FRANKI J. For the reasons set out in my judgment delivered today in a similar application by Jusfrute Limited, I dismiss the notice of motion seeking further and proper discovery with costs, set aside the subpoenas to each of the respondents dated 18 March 1983 and order that the applicant pay the costs of the respondents' notices of motion to set aside those subpoenas. ut . is icorase a true copy of the r Judgement herein of his Honour e [var tea e (963 Dated: /ol Ago € — ui et s IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN = AND: ORDER JUDGE MAKING ORDERS: Franki J. ) ) ) No. G206 of 1982 UNITED BEVERAGES PTY. LIMITED Applicant RONALD MOORE BANNERMAN First Respondent AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE Third Respondent DATE OF ORDERS: 12 April 1983 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The notice of motion of 8 March 1983 seeking further and proper discovery is dismissed and the applicant is to pay the costs of the respondents of that motion. 2. The subpoenas to each of the respondents dated 18 March 1983 are set aside and costs of each respondent in its or his notice of motion to set aside the subpoena to it or him is to be paid by United Beverages Pty. Limited. ad a Cede g IN THE FEDERAL COURT OF AUSTRALIA } NEW SOUTH WALES DISTRICT REGISTRY ) No. G.206 of 1982 GENERAL DIVISION ) BETWEEN : UNITED BEVERAGES PTY. LIMITED Applicant RONALD MOORE BANNERMAN First Respondent AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE Third Respondent 12 April 1983 REASONS FOR JUDGMENT FRANKI J. For the reasons set out in my judgment delivered today in a similar application by Jusfrute Limited, I dismiss the notice of motion seeking further and proper discovery with costs, set aside the subpoenas to each of the respondents dated 18 March 1983 and order that the applicant pay the costs of the respondents' notices of motion to set aside those subpoenas. So eee een - -- a fl Scawbit 7 ty —o | prosei- a a *i1¢ cour of the I Ra-cons rer gGudeocena. @ e.nmcf hos Nonour ~ ir. Justice Mane LEST IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No.G207 of 1982 GENERAL DIVISION ) BETWEEN : REGENCY FOODS PTY. LIMITED Applicant AND: RONALD MOORE BANNERMAN First Respondent AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE ' Third Respondent ORDER JUDGE MAKING ORDERS: Franki J. DATE OF ORDERS: 12 April 1983 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The notice of motion of 8 March 1983 seeking further and proper discovery is dismissed and the applicant is to pay the costs of the respondents of that motion. 2. The subpoenas to each of the respondents dated 18 March 1983 are set aside and costs of each respondent in its or his notice of motion to set aside the subpoena to it or him is to be paid by Regency Foods Pty. Limited. wed @ IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G207 of 1982 GENERAL DIVISION ) BETWEEN: REGENCY FOODS PTY. LIMITED Applicant AND: RONALD MOORE BANNERMAN First Respondent AND TRADE PRACTICES COMMISSION Second Respondent AND JOHN PRIMROSE Third Respondent 12 April 1983 REASONS FOR JUDGMENT FRANKI J. For the reasons set out in my judgment delivered today in a similar application by Jusfrute Limited, I dismiss the notice of motion seeking further and proper discovery with costs, set aside the subpoenas to each of the respondents dated 18 March 1983 and order that the applicant pay the costs of the respondents' notices of motion to set aside those subpoenas. Dt ee Tot ae a true copy of the | maa Fo Peasons for "Judguent herein of his Eonour itr. Justice a Caneffpre Kone Datea: /WV get VE 3 : e+ . ' ot