Ils oy een eres IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Between: TRADE PRACTICES COMMISSION - and - 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 INTERSTATE PARCEL EXPRESS CO PTY LIMITED 2 June 1983 Sydney REASONS FOR JUDGMENT FRANKI J. No. G.44 of 1978 Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant Seventh Defendant Eighth Defendant Ninth Defendant On Monday I dealt with the first order sought in this Notice of Motion by the Trade Practices Commission ("the Commmission"). That second order seeks, in effect, that the Commission have access to the following documents in a matter Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. VG 26 of 1977: (a) the Court file; (ob) the transcript of the proceedings; (c) all documents in the Court's custody produced in answer to any subpoena called at any stage in the proceedings; and (d)} all exhibits received into evidence in the proceedings. The Commission was not a party in those proceedings. There was no precise evidence before me whether the present Federal Court Rules (Statutory Rules No. 140 of 1979, "the 1979 rules") applied in matter VG 26 of 1977 although the matter was argued on the basis that they did not. The Commission did not seek to press for access at this stage to any documents or transcript in respect of which any order for confidence had been made but it did press for what it submitted were the public parts of the proceedings and also for all subpoenas and documents produced in answer to the subpoenas. Matter G44 of 1978, in which this Notice of Motion has been filed, is not a proceeding under the present Federal Court Rules. Prior to those rules becoming effective on 1 August 1979, the rules of the Federal Court were those in Statutory Rules No. 20 of 1977 ("the 1977 rules"). Order 2 rule 1 provided, so far as is relevant, that in relation to proceedings under the Trade Practices Act, 1974 "the practice and procedure of the Court shall be in accordance with the Conciliation and Arbitration Regulations as in force for the time being, which shall apply mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge". The 1977 rules, by order 64 rule 1 of the 1979 rules, apply to proceedings commenced prior to 1 August 1979 subject to any order of the Court or a Judge. An examination of the relevant Conciliation and Arbitration Regulations shows that no regulations existed relating to the conduct of the Registry but s.130 of the Conciliation and Arbitration Act 1904 provided: "Subject to this Act and the regulations, the duties of the Industrial Registrar and the Deputy Industrial Registrars shall be as the Chief Judge and the President jointly direct". Regulation 46 of the Conciliation and Arbitration Regulations provides: ."Where none of these Regulations is applicable, the practice for the time being of the High Court shall, except in any particular case where a Court or a Judge otherwise directs, regulate as far as is practicable, the practice of the Court". It is not clear to me whether a reference to the practice of the High Court includes the practice in the High Court Registry and, in view of the provisions of s.130 of the Conciliation and Arbitration Act, I consider that the regulations in relation to the High Court Registry do not apply except in so far as a Court or a Judge may have directed in a particular case. Senior counsel for the Commission submitted that order 58 rule 8 of the High Court Rules was applicable and that, on payment of the prescribed fee, any person was entitled to access to "the indexes or calendars and documents" which the Registry was required to keep. It was submitted that the documents to which access was now sought fell within the word "documents" in that rule. In my opinion, after 1 August 1979, the rules in order 46 of the 1979 rules dealing with Registries were relevant to the conduct of the Registry. In any event, pursuant to order 2 rule 1 of the 1977 rules and order 64 rule 1 of the 1979 rules, I direct that the practice in the Registry provided in the High Court Rules shall not apply in relation to this application. Order 46 rule 6 provides: "6. (1) Except with the leave of the Court or a Judge a person who is not a party to the proceeding may not search in the Registry for or inspect - (a) any judgment, order, transcript of a proceeding, or other document which the Court has ordered remain confidential; (b) any affidavit; (c) anterrogatories or answers to interrogatories; (d) lists of documents given on discovery; (e) admissions; (f£) evidence taken on deposition; (g) any subpoena or any documents lodged with the Registrar in answer to a subpoena for production of documents; or (h) any other document which the Registrar considers ought to remain confidential to the parties. (2) Except with the leave of the Court or a Judge a party may not search in the Registry for or inspect any document filed to support an application that any document, evidence or thing be kept confidential or that any document or thing be privileged from production." I consider that I should treat the application as having been made to me pursuant to order 46 rule 6. There is no evidence before me concerning what documents are in the Registry in relation to matter VG 26 of 1977. Any documents which do not fall within the prohibitions in order 46 rule 6 may be searched for or inspected without leave of a Court or Judge. There is no evidence before me that any application has been made to the Registrar or that he has exercised any jurisdiction under order 46 rule 6(1)(h). I think it is appropriate first to consider the request to be allowed to inspect all the subpoenas which had been issued aun matter VG 26 of 1977. It is not clear to me how many subpoenas have been issued in this matter or to whom they have been issued and no attempt has been made by the Commission to identify any subpoena to which 1t seeks access or to indicate the reason why inspection should be allowed of any particular subpoena, A general submission was made by the Commission that because of the best evidence rule it was important to know what documents had been the subject of subpoena in VG 26 of 1977. I am asked to treat the documents:to which access is sought as being in the same category as 1f they had been produced in answer to a subpoena and to permit the Commission's legal advisers to have access to any document which I consider to be apparently relevant to the issues in the case. This would not take into account any submissions of the person on whom a subpoena had been served. Whatever other objections may exist in relation to this proposal I consider that it 1s in the nature of discovery and I cannot see why a Judge should undertake such a broad obligation. No leave is required for inspection of the pleadings, transcript, (other than that in respect of which an order for confidentiality has been made), any exhibit (other than that for which an order for confidentiality has been made), any praecipe for a subpoena, the Court register and the index on the cover of the file unless the Registrar considers any such document should remain confidential under order 46 rule 6(1)(h). No counsel could direct me to any authority relevant to this matter and no detailed analysis of the possible procedures was made. Counsel for the second defendant sought to call oral evidence seeking to show that the application for access was "an invocation of the Court's discretion not for the genuine purpose of obtaining access at all but for the ulterior purpose of legitimising access which has already been obtained". I considered any such evidence to be irrelevant and rejected it. Some questions arose concerning the physical transmission of the documents from the Melbourne Registry to the Sydney Registry. However, I do not think that 'this issue 1s of any significance. Beyond saying what I have as to the access the rules allow without leave, I dismiss the application for access. This is without prejudice to any further application being made for any specific document and without prejudice to any application for documents to be physically in the Sydney Registry during the trial. Any application to inspect those documents which are available for inspection under order 46 rule 6 without any order of this Court or a Judge should be made to the District Registrar in Melbourne. I will hear submissions as to costs. I certify that this and the <u» (6) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Franki. ssociate Dated: 2 were SPSS