-73 Io Practice and Procedure - application for issue of subpoena duces tecum against a stranger to the proceedings to produce documents prior to the date fixed for hearing - no express provision in the Rules for the issue of a subpoena to produce documents in advance of the hearing - whether Court has power to make order sought - scope of 5.23 of the Act and 0.27 of the Rules Federal Court of Australia Act 1976 s.23 Federal Court Rules 0.27 KIMBERLEY JOHN HUGHES v. WESTERN AUSTRALIAN CRICKET ASSOCIATION (INC.) and MI. LAWLEY DISTRICT CRICKET CLUB (INC. ) and OTHERS and LESLIE ANNISON (Sued on behalf of himself and all other members of the Southern District Cricket Club) and OTHERS and KEVIN MORRIS TAYLFORTH (Sued on behalf of himself and all other members of the Cricket Council of Western Australian Cricket Association (Inc.)) No. WA G14 of 1986 TOOHEY J. PERTH 30 MAY 1986 IN THE FEDERAL COURT OF AUSTRALTA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G14 of 1986 wwe er BETWEEN: KIMBERLEY JOHN HUGHES Applicant and WESTERN AUSTRALIAN CRICKET ASSOCIATION (INC. ) First Respondent and MI. LAWLEY DISTRICT CRTCKET CLUB (INC.) and OTHERS Second Respondents and LESLIE ANNISON (Sued on behalf of himself and all other members of the Southern District Cricket Club) and OTHERS Third Respondents and KEVIN MORRIS TAYLFORTH (Sued on behalf of himself and all other members of the Cricket Council of Western Australian Cricket Association (Inc.)) Fourth Respondents CORAM: TOOHEY J. 30 May 1986 REASONS FOR JUDGMENT The question presently before the Court is this - has a Judge of the Federal Court power to order the issue of a subpoena duces tecum to someone not a party to the proceeding to produce documents to the Court on a date earlier than the date fixed for 2. the hearing of the application? Tt is a question that requires an early answer. The applicant, Kimberley John Hughes, has brought an application against the Western Australian Cricket Association (Inc.), various cricket clubs and persons representing clubs, and the Cricket Council of Western Australian Cricket Association (Inc.). He relies on several causes of action, in particular s.45 of the Trade Practices Act 1974, and as well common law claims including an allegation of conspiracy to injure the applicant in his business as a professional cricketer. It is unnecessary to say more about the causes of action themselves. But events giving rise to the applicant's claim against the respondents include proceedings taken in the Supreme Court of Victoria by the Australian Cricket Board against the applicant and other players to prevent them from playing cricket in South Africa. Having regard to affidavits of documents filed by the parties in the present proceedings and to what has been said by counsel from time to time in the course of the hearing of motions relating to the scope of discovery, it may be taken as common ground that some documents emanating from the Australian Cricket Board are relevant to matters in question in the present litigation. While the respondents have included in their discovery a number of such documents, I was told by counsel for the applicant on the hearing of the present motion that certain of those documents were said to be no longer in the possession, custody or power of the respondents. The applicant submits that these documents are vital to the preparation and presentation of his claim and that it is therefore appropriate that the Australian Cricket Board be required to produce those documents under subpoena well before 29 July which is the date fixed for the hearing of the application. The need for the documents to be produced in advance is accented by the fact that the proceedings are to be conducted, so far as is practicable, on affidavit evidence. Counsel for the Australian Cricket Board contended that there is no power in the Federal Court to order the issue of a subpoena duces tecum to this end; he accepted, as he must, that the applicant could issue a subpoena for the production of documents at the hearing. At this stage I am concerned only with the power of the Court to issue such a subpoena and, by implication, the obligation of the Australian Cricket Board, if a subpoena is issued, to bring the documents to the Court. I am not concerned with the inspection of any documents that may be produced, even less with their admission into evidence. As to what is involved in each of these steps, see Waind v. Hill & National Employers' Mutual General Association Ltd. (19783 1 N.S.W.L.R. 372. Counsel for the applicant did not contend that the Federal Court Rules contain an express provision for the issue of a subpoena to produce documents in advance of the hearing. But, he said, the Court must be taken to possess imherent Jurisdiction to make such an order. Reference to the "inherent jurisdiction" of the Court 1s, 1m my view, unhelpful. The question is one of power rather than of jurisdiction. See Parsons v. Martin (1984) 58 A.L.R. 395 at 400 and at 401 where a Full Court of this Court said: "In our opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred. In view of the way in which the phrase 'inherent jurisdiction' is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court." In my experience this Court has from time to time ordered the issue of a subpoena for the production of documents in advance of a hearing. But it may be that the power of the Court in this regard has not been challenged. Such an order was made by Bowen C.J. in Trade Practices Commission v. T.N.T. Management Pty. Ltd., a decision which so far as I am aware is reported only in Australian High Court and Federal Court Practice 1981-1983 Cases 65-064, Because of the date on which those proceedings had been commenced, they were being conducted under the High Court Rules pursuant to 0.64 r.1 of the Federal Court Rules. The view of the Chief Judge is summarized in this passage at p.96,141: "TI am of opinion that this Court has power to make rules, pursuant to sec.59 of the Federal Court of Australia Act 1976, authorising the issue of subpoenas returnable before the date of the hearing. Although no such rule has, in fact, been made, the Court or a Judge can give directions on the matter (sec.38)." The present proceeding 1s of course being conducted under the Federal Court Rules. In that situation, it seems to me that s.38 of the Federal Court of Australia Act is of no assistance. Neither the Federal Court of Australia Act nor the Federal Court Rules gives a Judge of that Court a blanket power to make orders where no express provision is to be found in the Act or Rules. Nevertheless a Judge has, in the words of Parsons v. Martin, such powers as are incidental and necessary to the exercise of the jurisdiction or the powers conferred on him by the Act or by the Rules. Section 23 of the Act gives the Court wide power, in relation to matters in which it has jurisdiction, "to make orders of such kinds, including interlocutory orders ... as the Court thinks appropriate". Order 27 r.2 of the Rules empowers the Court to issue a subpoena to give evidence or for the production of documents, or both, "in the prescribed form or in such other form as the Court may direct". Order 27 r.4 permits a person named in a subpoena for production of a document, where the person named is not a party to the proceeding, to produce the document to the Registrar "not later than the day before the first date on which his attendance is required, instead of attending and producing the document ... as required by the subpoena". SX -"? thite rk 1 6 6% toe AU TT i ett BA: ree an In wy view, where 1t appears to the Cuurt to be in the tnterests of justice and the proper and expeditious conduct of a proceeding that a person produce documents before the date of hearing of the application, such a power exists. It arises by implication from the broad procedural scope of s.23 and also of the Rules, in particular the powers given to the Court by 0.27 to control the issue of subpoenas and the circumstances in which documents are produced. And it arises incidentally and necessarily to the exercise of the powers that s.23 and 0.27 confer. It is not a matter of the inherent jurisdiction of the Court. I am not to be taken as suggesting that, through the machinery of subpoena, a party may obtain discovery from a stranger to the action. The weight of authority is too strongly against the use of a subpoena for that purpose, in the absence of express provision. See for instance The Commissioner for Railways v. Small (1938) 38 S.R. (N.S.W.) 564 per Jordan C.J. at p.573. Furthermore the power is one that should be exercised with economy for it may lead to the fragmentation of proceedings and argument about access by the parties to documents in the hands of a4 stranger and the use of those documents in the proceeding when such argument might be more readily dealt with at the hearing itself. But there will be cases in which the issue of a subpoena duces tecum to produce specified documents or classes of documents before the hearing will be conducive to the proper presentation of a party's case and possibly avoid an adjournment with attendant delay and expense. Indeed. 1t may incommode a witness far less to produce documents before the hearing, as 0.27 r.4 contemplates. I am satisfied, from what I was told by counsel for the applicant and from the affidavits he has sworn, that the documents sought to be produced are capable of identification "with reasonable particularity" - see Lucas Industries Ltd. v. Hewitt (1978) 18 A.L.R. 555 at p.570. They are mentioned in correspondence between the applicant's solicitors and the respondents' solicitors. In the ordinary course, they would have been produced on inspection of the respondents' documents and the present motion would have been unnecessary. Because they are no longer in the possession, custody or power of the respondents, the course taken by the applicant to obtain the production of the documents on subpoena is, in my view, justified. I have been asked to deal with the matter as one of power only; but it follows, from what has been said, that I accept in principle the justification for the issue of a subpoena. I shall hear from counsel as to the terms upon which the subpoena should issue. I certify that this and the preceding six pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Toohey vi LA_— Associate Dated: 30 May 1986