fi" -ee ar ISG CATCHW2RDSE Practice and procedure ~ Subpoena for Production issued to the Australian Trade Commission - Statutocy immunity from production claimed - Whether statutory immunity applies. Foley v. Tectran Corporation ( Australian Trade Commission Ac f == Ss = . a wi. OYD'S SHIPS HOLDINGS OTY ETT 9 ANOP, +. DAVEOS PTY.ETD. & c RECEIVE: ~ 2 MAY 1986 FeOrRAL al THE FEDERAL COURT CF AUSTPALTA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISTON aN BETWEEN ; LLOYD'S SHIPS HOLDINGS QLD G17 of 1986 PrY.LTD. First Applicant AND: QOUESNSLAND MERCHANT HOLDINGS LIMITED Secarnd Applicant AND: DAVPOS PTY. LTD. ricst Respondent AND: LLOYD CORPORATION (a farm) Secone Respondent AND: METTH BEPNZE LUCY Thick Rescordent AMD: LLOVE'S EXCLUSIVE THRETEEPS ERY LTD, Fragit. Paesoaniint MEUMITES OF ORTEP JUDCE MAMING O°REP: SPENDEP TJ, DATE OF OPDER: 128 APRIL, 1996 WHERE MADE: BPIsSBANe THE COURT ORDEPS THAT: 1. The Australian Trade Commission is immune from croducing the documents referred to in the subpoena. 2. The applicants ray the Australian Trade Commission's costs of the hearing. NOTE: Settlement and entry of orders 15 dealt with in Order 24 of the Federal Court Rules. IN THE FREDEPAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) OLD G17 of 1986 GENERAL DIVISION PETWEEN : LLOYD'S SHIPS HOLDINGS PTY.LTD. First Applicant AND: QUEENSLAND MERCHANT HOLDINGS LIMITED Second Applicant AND: DAVPOS PTY.LTD. First Respondent ANT: LEIVD TOPFORATION 'a firm: Secend Resrondent IND. WETIU SDeMtS LEAS ~ Thie? Pesrondert LUCVE' S$ EMCLUCIVE SHARTEDS PTY. tTh Fearth Resnindert DETE OF HEARING? 12 AFPIL, 1996 NATE JUDGMENT DELTYESED 12 APPTL, 199€ COUNSEL: . foc the aoplicants Mr. Morris iunstracted by Clacke & Fann for the Australian Tvade Commission My. Bickford in by the Australi ban Government Selici 1@ APRIL, 1 'D ID mi PETEP APPLEGARTH ASSOCIATE TO SPENDER J. IN THE FEDERAL COURT OF AUSTRALTA ) QUEENSLAND DISTRICT REGISTRY ) QLD G17 of 1986 GENERAL DIVISION } BETWEEN ; LLOYD'S SHIPS HOLDINGS PTY.LTD. First Apolicant AND: QUEENSLAND MEPCHANT HOLDINGS LIMITED Second Aoplicant AND: TAVPOS Pry. .LTD First Resvoondent ANT: aLOYE COPPOPATION 'a firm) Serzane Rernendent YEETH RBEPNTE LLOYD AND: SPENDER J. 18 APRIL, EXTEMPORE PEASONS FOR JUDGMENT This is the return date of a Subpoena for Production issued to the Australian Trade Commission. It raises a question of the scope of secrecy provisions contained in the Australian Trade Commission Act 1985. Leave to issue this subpoena was obtained on 14 April 1986 by the applicants in this action, the trial of which is due ta commence on next Monday, 21 April 1986. Objection 1s made to the production of documents pursuant to the subpoena. Because the trial of the action is imminent, I am required to give an immedzate ruling on this objection. eectain names including "Lloyd's Shics",. The provisions of 'the agreement are detailed ard I need not make reference to them for present purposes. The resoorndents are alleged to have carried on the business of a ship and boat builder at various times at premises situated near the applicants at Bulimba in breach of the agreement and in such a manner as tc constitute misleading and deceptive conduct and passing off. I have yet to determine the relevance of the subpoenaed documents to any issue raised in these proceedings. The steps involved in having a third party produce documents pursuant to a subpoena are summarised in the very helpful judgment of Moffitt P. an Waind v. Hill and National Emplovers' Mutual General Association Ltd. £19782 1 N.S.W.0.R. 372 at 381:- "As Jordan C.J. pointed out in Small's case (1938) 28 S.R.(N.S.W.) 564, at 9.574; 55 W.N.215, ard, as arrears in Burchard's case £1991] 2 Q.B. 241, at op.247, 248, there are at least twe steps in the ecocedure of having a third pacty bring documents to court, and in their use thereafter. Indeed, on aA correct view, there ace three steps. The first 1¢ obeving the subpoena, by the witness bringing "he documents to the court ana handing them te the ,addge This ¢ten involves the determination of Any objections of che «ninees te the subpoera, of ta the eroduction of the dacumerts te 'the court pursuarpt to the subpoena. The second steno ts the escisiter of the judge ctorcerning the prestiminarcy use of the decuments, cnicth includes' whether or nos verpission shculd be given to a pacty oc parties to inspect the documents. Tne third scer re the admission aunto evidence of the decument in whole oy im part; or the use oF 1t in the procress of evidence being put before the ccust br arces-examinakion cr otharwise. Th 1¢ the third step which alecn= provides material unen which nitimate decision in the case rests Tn trese three steos the stranger and the narties have different rights, and the function of the tudge differs." The subpoena directed to the Australian Trade Commissicn yoduction of:- mM oO a ia wa 'S o wu 1. Any application and supporting or associated documents lodged by any of the respondents, or by any company associated with the third respondent named in the business purchase agreement of 15 November 1984, pursuant to the Export Market Development Grants Act 1974 (Commonwealth) (as amended),( such companies being identified by name in the subpoena) ; 2. Any file note, memorandum or other document raised by the Australian Trade Commission pursuant to receipt of suck documents, or an investigation ef any such apelication from any such comeany or percsen. The ob sections to production are hased seclely on statutcer xseaivileges fram ditclosure and da net atsert public Srade Commission, was filed or Lehalt of the relating to the companies specified in the subpoena to which the affidavit refers. In paragraph 2 of his affidavit he deposes:- "The whole of the Commissions' files relating to the aforesaid companies consist of - 1D (b) lo ectaa— fi) ae a) % a (b} Penalty: $2,009 or imorisonment for 1 year, information concerning the affairs of a person or persons acquired by members of the Commission or members of the staff assisting the Commission or employees of the Commission as the case may be, by reason of their employment with the Commission; or documents relating to the affairs of another person furnished for the purposes of the Australian Trade Commission Act 1985." documents for production ta the Court yalian Trade Commiss is ten the Australian Trade Commission hur ry by ro be ny n or [a Ww a] a) ™ wa rp) 1] 3) r i] re w mn Wy Chaircpersa TS ry d wo iw ou ry fon 4 ~ i ID moot ay 1D n we ns mor st nos ty te raw hs wipoan ? y B s 'S J rs) me) oe oc mea on rst vO Drs 3S 3 Bl? 5 Piers! Mb ep 5 ow w Sy a W ta fa ett yom py a4 + Mm 1D ms an under Mar BAT Si 11g po% cn TD Suctrpy tone] bat fa ~O Qo te ib SD anoors5 bi rt we loa Oo RIS wo nto rerhs Ia rs a0 Managing or actin Oy Sa sy MEQ toiét o Renny tes ie Poited = t z vow Qi QOH w oO Tt A moO mip odo ssomwersarAage a 1) Ok uy os Mana enpic wy tis fay Aus Wd: face ie ry 1D Ow ey a 7) ) ] C 3S n. fat) ty a iD ° t b re)om 1B 4 0 i D ny mea QO cr is) be) vows me Oo '% 0D yee mu oo th Ul Oct tir in tbe ce ip) c bh ote ms tn cr i fom oO vd hers ct Pe rra mas a 1D he cd aD r u cdf ry? i Fo OAs ef DS ct sm ts Tor TO wd ps oO . rs ov om "yD of sO wm tS , aor divulge oy communicate any information conrcerring another person acquired hy first-mentioned verson by reason of his or her employment; or produce to any person a document relating to the affairs of another person furnished for the purposes of this Act. vo w a a pg rays fal uy aom Oo e) 2 Ih tora i) or both. Di] (3) Sub-section (2) does not apply to the disclosure of information, or the Production of a document, to the Minister, to the Secretary to the Department, or ta an officer of the Department designated by the Secretary. (4) Sub-section (2) does not prevent the Commission from communicating, or making available to another person -~ (a) particulars of - (i) a guarantee given, or proposed to be given, under section 39, 41 or 42 Or a guarantee of R like nature given, or proposed to be Given, under section 44; (11) a contract of indemnity entered inte, or proposed to be entered into, under section 49 or 42 ora contract of a like nature entered into, or Propcsed to be entered znto, under section 44; or (111) a loan made, or Proposed to be made, under section 49 or 50; (b) the names of persons to whor the Commission has authorised paywerts of grants urder tha Export Market Develapment Grants Act 1074 and the eespective amounts of those gcantse; and feloog nfcematron of A statist-ecal celaki the makirg of Grants wunier the Mat lrer Looment Grants Act 1974, ($1 KR werser to -shom this seckicn arclies Shall not be required to divulge ar communicates ta a court any information referred to in eub-section (2) or to produce 21 a Tourt any decument referred SO in that sub-section, except rmen oat ais ne vtec 42 so for the Ppuryvoses af, or of 2 pr 20n for an 2ffence agains:, this Act er th ee Mar ces Devel-onent Grants Act 1974 cay A person £o whom informaticn is communicated under sab-section (3) and an emcloyea er cther perscn under that pereon's control are, 11 cesvect of that information, entitled to rights and erivileges, ard subject to obligations and iiabllaities, under sub-sections (2) and (5) as if they vere persons referred to in sub-section (1) "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions; "produce" includes to permit access to. Counsel for the applicant submits that s.94(5) does not preclude production of documents pursuant to the subpoena because .94 applies only to the person specified in s.94(1), and not to the Australian Trade Commission itself. Section 7 of the Act establishes the Australian Trade Commission as a body corporate. Section 11 creates an Australian Trade Commission Board, which consists of the members described in s.12. Gection 60 enables the Commission to employ staff. Given that the Commission is a separate legal entity from the board of the Commission, the applicants conterd that the yeohibltion on disclosure in $.94(2) and the privilege against P disclosure created by $.94(5) de not apply ta the Commission Te surport of this submissicr yeliance ig plateioon the weil knowm principle that courts should rermally tbe able to eacure information which 1: relevant for the determination of issues which come before them, including the tecuring by Tt vas said that express words would be needed te cut dawn the agplication of that principle. The competing policies involved in a case such as this were referred to by Kirby P. in Foley v. Tectran Corporation (1984) 57 A.L.R. 26 at 31-2. The first is the public volicy that courts should normally be able to secure relevant information, including under subpoena, for the determination of issues for trial coming before then. The second public policy, which underlies the inclusion of such a secrecy provision, 1s the need to protect the business secrets of those who, in faith of the confidentiality of their dealings with the Commonwealth and its agencies, disclose sensitive anc confidential information in the hepe of securing a benefit conferred by legislation. T have been referred to the judgment at first instan mn Oo ef Miles 7. in the Tectran Corporation case, (unreported, 23 November, 1994), where his Honour was concerred with s.?7 of the Export Market Develenrment Grants Act 1974. That section was entitled "Secrecy" ane subsection 1 of it orovided - "This sectiop apeliee i> every parson tho 13s of has - " - of Lae eer oa omerber of the Board of of the staff ngsistinoa che Board." Developmert Grants Board, and the propec officer cf the Australian Industrial Research and Development Incentives Board, neither of which was a body corporate. In the course of his reasons upholding the claimed immunity from production, his Honour said:- ",,,having regard to the overall purpose of secrecy which $.37 seeks to attach to information contained within the Board's records concerning applications for grants or allied matters the section should, in my view, be widely construed. Otherwise the secrecy provisions of paragraph (b) of sub-section (2) relating to applications would easily be avoided by a reference to the terms of an application within a minute or other document of the Board which deals with or concerns that application. As I see it it is the policy of the Act that applicants for grants should be able to make claims for exvort development grants free from scrutiny hy persons other than chose concerned to consider the claims. On the face of ak then the production of a document of the Board by its Proper Qfficer would result in divulging information contrary to s.37(5).," sf oi ct my pproach of Miles J. was referred to with anoroval by Finlay J. in Southern Pacific Hotel Services Incorporation v. Tnat also was a case directed to the Exec.t Market Development Grants Beard and was concerned with 5.37 of the Exeoorct Market Develoomert Grants Act 1974 Recause of the erffererces batveen the Acts te which IT nave referred, neither of EFhose cases is of direct relevance The matter 1s essentially ane of statutory interpretation Tf 3.94 merely created a prohikition upon disclosure of the prescribed information by the specified individuals, the applicants' submission would be sustainable, since the section cculd be interpreted as penalising misfeasance by the individual members of the Board and staff of the id 10. Commission. However, s.94 does not merely prohibit disclosure. Section 94(5) creates privileges against the communication of certain information and the production of certain documents to a court. This provision indicates to me that s.94 seeks to guarantee the secrecy of certain information both by penalising individuals who are responsible for any disclosure and by creating statutory privileges for representatives of the Commission who are subpoenaed by a court. In my opinion, the privileges created by s$.94(5) are those of the Comnission, despite the fact that the Commission itself is not referred to in s.94(1) as a verson to whom the section applies. The om1eszran of the Commission itself from the agelication of the privileges ais explicable cr the oractical basis that the Commission, in resvonding to the subroena, must act through the persons specified in s.94(1). "(a@) Sub-section (2) does not prevent the Commission from communicating, or making available to another person - " ? ll. Sub-section (2) in its terms does not prevent the Commission from doirg anything. The opening words of s.94(4) can only be given a meaning 1f "the Commission" is understood to mean the persons specified in s.94(1) through whom the Commission necessarily acts. It was submitted that either s.94(4) was inserted as a result of a misapprehension of the earlier provisions or, alternatively, is a provisicn inserted out of an abundance of caution. In my view, however, there is aciear statutory intention ta provide that documents supplied to the Australian Trade Commission in respect of the purposes of the Act should be regaréed as confidential. Io eonelud 'b that the statutory privileges crea ct Q o ov Ma This conclusion, in my opinion, giv Oy w iD Im th i) oO T a is] wr QP oH) intention to override the ordinary policy that courts should he w lon pad o fad eo secure information relevant to issues which they are called upon to determine. The result, then, is that the Australian Trade Commission is immune from producing the documents referred to in I ceriy that this e- =.°7 \O preceding the subpoena. cs nages are a true ccpy of me reasons for Judgment heren of His Honcur Mr Justice Spender eyth, a addgore per 18 Aged Wael