Not FOR DISTRIBUTION JUDGMENT Wo. IS BS IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DiSTRICT REGISTRY Vv. No. G 109 of 1983 ee ee GENERAL D1LVCSION BETWEEN : JET CORPORATION OF AUSTRALIA PIr¥Y. LIMITED (in 165 capacity as trustee of the Jat Corporation of Australia Trust) Applicant and PETRES PTY. LIMITED {in its own capacity and in its capacity as bLrustee of the Schutt Unit Trust) and OTHERS Respondents COURT: NORTHROP J. DATE : 29 FEBRUARY 1988 PLACE: MELBOURNE THE COURT ORDERS THAT: - i. The documents produced to the Court in this matter pursuant ta subpoena hy:- (a) Messrs. Cornwall Stodart & Co., Solicitors; (b) Messrs. Simon, Gadgett, Collingwood & Coc., Stock Hrokers; and (c) Messrs. Arthur Andersen & Co., Accountants, be released into the custody of Mr. Roger Franich, Magistrate, presiding in the current preliminary hearing in the Melbourne Magistrates' Court of charges against Barry John Collier, Kelvin John Dyer, Andrew Sheppard Grimwade, Trevor Burton Huttley, and Jon Dean Wilson and to be returned to this Couct at the completion of the cfaiminal proceedings against those persons or until further order. toa, men eee er "7 Upon Messrs. Touche Ross & co. by 1s counsel undertaking that if the documents presently in the custody of the Federal Court of Australia in action V. No. G 109 of 1983, pursuant to paragraphs (a) and (b) of the schedul@ to the subpoena dated 2 June 1983, are returned to its custody, it will keep the said documents in safekeeping, that it will not tamper with, nor deface nor alter nor destroy the same, that 1¢ will forthwith return the saad documents to the Federal Court of Australia upon a Judge of the said Court requesting i1t to do so and that otherwise the documents will he retained by it and dealt with according to due and proper legal process and according to law, the Court Orders that the said documents be returned to the custody of Messrs. Touche Ross & Co. until further order. There is libarty to apply. Messrs. Touche Ross & Co. be paid its costs of the motion by the Director of Public Prosecutions and the National Crime Authority and the informant. (Settlement and entry of Orders is dealt with in 06.356 of the Rules of Court.) — vs IN THE FEDERAL COURT OF AUSTRALIA ) } VICTORIA DISTRICT REGISTRY ) Ve. No. G 109 of 1985 ) ) GENERAL DIVISION BETWEEN : JET CORPORATION OF -AUSTRALTA PIV. LIMITED (in its capacity as trustee of the Jet Corporation of Australia Trust) Applicant and PETRES FIV. LIMITED (an 165 own capacity and in its capacity as trustee of the Schutt Unit Trust) and OTHERS Respondants COURT: NORTHROF J. DATE : 29 FEBRUARY 1988 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT Presently before the Court is a motion brought on behalf of the Director of Public Prosecutions constituted under the Director of Public Prosecutions Act 1982 (Vic.), bhe National Crame Authority constituted under Commonwealth legislation, and the aunformant ain committal proceedings currently being heard in the Magistrates' Court at Melbourne. In those criminal proceedings Kelvin John UDyer, Andrew Sheppard Grimwade, John Barry Collier, Trevor Burton Huttley and Jon Dean Wilson have been charged with offances under s.191 of the Crimes Act 1958 Victoria. The motion, in its amended Form, 15 seeking orders as follows:- 1. That the documants produced to this Courk in Matter Number YG 109 of 1983 pursuant to subpoena by: (a) Cornwall Stodart & Co., Solicitors; (b) Samon, Ladgett, Collingwood & Co., Stock Brokers; and (c) Arthur Andersen & Co., Accountants be released into the custody of Mr Roger Franich, Magistrate presiding in the current preliminary hearing in the Melbourne Magistrates' Court of charges against Barry John Collier, Kelvin John Dyer, Andrew Sheppard Grimwade, Trevor Burton Huttley and Jon Dean Wilson, and to he returned tao this Court at the completion of the ceiminal proceedings relating to the said charges or until further order. o— ane pert pene = pew penny emery yen re ~ r ToT d ser a ey Pore td Be A similar order with respect to documents produced to this Court in Matter Number VG 109 of 1983 by Messrs. Touche Ross & Co., Accountants, pursuant to paragraphs (a) and (bh) of the schedule to the subpoena dated 27 June 1983. The history giving rise to the present motion 15 lengthy and complex. In dune 1983 the applicant, Jet Corporation of Australia Pty. Limited, together with two other applicants, commenced proceedings in this Court based upon alleged breaches of the Trade Practices Act 1974 and other causes of action. There were a large number of respondents and other respondents were added from time to time and some respondents were struck out from time to time. It is sufficient to say, for present purposes, that the persons charged with the offences against the Crimes Act are all parties to the proceedings presently before the Court and that the basic facts giving rise to the proceedings in thas Court and in the committal proceedings are similar, having occurred apparently between the same parties at about the same Lime. In the proceedings ain this Court the applicant assued subpoenas to the four groups of persons already mentioned, Messrs. Cornwall Stodart & Co., Messrs. Simon, Lidgett, Collingwood & Co., Messrs. Arthur Andersen & Co. and Messrs. Touche Ross & Co., requiring the production of documents, and in so doing sought to have those documents produced to Fhe Court prior to the commencement of the hearing of the matter. There is a long history as to the effect af those subpoenas and for present purposes 16 2s sufficient to say that as far as Messrs. Touche Ross & Co. and Mr. Roger Randall, being the person connectad with that Firm whe had bean served with Ehe subpoena, are concerned the judgments given by this Court as presently constituted on 23 May 1985, 25 June 1985, 12 August 1985 and 29 October 1986 are all relevant in that regard. Pursuant to those subpoenas, documents have been produced to the Court by Messrs. Cornwall Stoddart & Co., Messrs. Simon, Lidgett, Collingwood «& Co., and Messrs. Arthur Andersen & Co., and Ghose documents are in the custody of the Court although none of them have been tendered to the Court as exhibits or as evidence. The documents described in paragraphs (a) and (b) of the schedule to the subpoena to Mr. Randall dated Z7 June 1983 have been produced to the Court subject to soma minor axceptions which I referred to in one of -Ehe judgments just mentioned and those documents area in the custody of the Court. Likewise, none of those documents have been tandered or are in evidence before this Court. During the course of proceedings and interlocutory maLlters, orders were made ain accordance with the well known procedures allawing the legal practitioners of the parties to inspect those documents and to take copies subject to very strict conditions. Lee ae ¢ The position is now reached where the Director of Public Prosecutions, and I will use that name to include the three persons who are moving the Court, is seeking Lo have those documents in the custody of the Court made available ta be used in the committal proceedings. Apparently the persons who have bean charged have no objection to that course being taken. Mr. Patterson of the firm Cornwall Stedart a Co. has no abjection to any order being made; he will abide by whatever order the Court makes. The solicitor for a number of the respondents to bFhe present proceedings before this Court makes no submissions as to the form of the order. I am satisfied that the other persons who have produced documents have knowledge of this present motion, but only one has attended before the Court to oppose the making of the order, namely Messrs. Touche Ross & Co. who have appeared hy counsel. To a large extent, the issues raised by this motion involve a possible conflict between different principles of law, some of which were discussed by me in Coward v. Allen (1984) 52 A.L.R. 320, and are similar to problems which were discussed by me in the case of Commercial Bureau (Aust.) Pty. Ltd. v. Alten (1984) 1 F.C.R. 202. There seems to be no doubt that if the documents produced by Messrs. Touche Ross « Co. had remained in their possession, the Director of Public Prosecutions could have taken steps to have obtained those documents, possibly by way of search warrant, or by way of subpoena, but it must be remembered that Messrs. Touche Ross & Co. is not a party to the proceedings in this Court nor has oe poe -_ t Bp yee se oot reenter ge Leet se Mr. Randall of, as far as I know, anv other member of that firm, been charged with offences the subject of the current committal proceedings in the Magistrates' Court. The documents are in the custody of this Court pursuant to Che processes of this Court and it is essential that MNessrs. Touche Ross & Co. should not be unfairly treated by reason of their compliance with the law. At the same time, it is necessary that this Court should not prevent the normal processes of the criminal law in the State courts and under normal circumstances there would be no objection to the making of the orders sought by the Director of Public Prosecutions. In Fact, I propose to make the orders soughte in paragraph 1 of the amended notice of motion in relation to Messrs. Cornwall Stodart & Co., Messrs. Simon, Lidgett, Collingwood & Co. and Messrs. Arthur Andersen & Co.., The Court 15 not in a position to determine what courses would have been open to Messrs. Touche Ross & Co. if the Director of Public Prosecutions had attempted to obtain possession of the documents which have bean produced on subpoena if they had remained in the custedy of Messrs. Touche Ross & Co.. It is quite apparent that if the National Crime Authority had taken the appropriate steps at the appropriate time, in all probability, orders similar to those made in the Commercial Bureau Case would have been made in bhis case. Such orders would have protected any legitimate interest of Messrs. Touche Ross & Co. and also would have enabled the Director of Public Prosecutions to be able to identify what documents should be produced by this Court at tre wee epee See 1 . - Vac Fee eo o> - a 5+ the request of the Director of Public Frosecutions to be used in evidence at Lhe committal proceedings. That has nok been done. In all the circumstances, it would be unfair if this Court were to make an order in the form sought by the Director of Fublic Prosecutions without knowzng the full implications of such an order. In those circumstances counsel on behalf of Messrs. Touche Ross & Co. has given an undertaking to the Court that if the documents presently in the custody of the Federal Court of Australia in action V. No. G 109 of 1983, pursuant to paragraphs (a) and (b) of the schedule to the subpoena dated 27 June 1983, are returned to its custody it will keep the said documents in safekeeping; that it will not tamper with nor deface nor alter nor destroy the same and that it will forthwith return the said documents to the Federal Court of Australia upon a Judge of the said Court requesting it to do so and that otherwise the documents will be retained by it and dealt with according to due and proper legal process and according to law. In the light of that undertaking, the Court proposes to accept the undertaking and to make an order of the kind referred to in -hat undertaking. It does this on the basis that this will then enable Messrs. Touche Ross « Co. to take whatever action it thinks appropriate in relation to proceedings commenced by the Director of Public Prosecutions to obtain those documents for the purposes of the committal proceedings. ery OS ee ~~ It is understood Chat nothing which has occurred today is to be taken as preventing the Director of Public Prosecutions taking any normal procedural step to obtain possession of those documents, but at the same time Messrs. Touche Ross & Co. will be able to take steps it considers appropriate to prevent the production of those documents according to law. Likewise, it should be noted that anything that has happened in this Court today is not to be taken as any direction at all as to how Mr. Franich should deal with the matters arising from the custody of those documents Placed in his care. During the course of submissions questions were raised as to thé standing of the Director of Public Prosecutions to bring this motion. It is not a party to the proceedings in this Court. Difficult questions arise as to whether a subpoena issued in the Magistrates' Court can be directed to this Court or to an officer of this Court to produce documents in the custody of this Court. In my opinion, the Director of Public Prosecutions has sufficient standing to bring this motion and the submissions to the contrary are rejected. The Director of Public Prosecutions is concerned with the conduct of the proceedings befare the Magistrates' Court and presenting the material it desires and considers appropriate to support the charges laid against Ghose persons for offences against the Crimes Act. In view oF the uncertainties as to subpoena and the problems associated with a formal notice to preduce, I see nothing aa m5 —— rs Toa a wrong with the course which has been adopted. It 1s very similar to the course adopted by the Commissioner of Taxation in the Commercial Bureau Case referred to earlier. ' Accordingly, the only obher matter for consideration is the question of costs. In this case Messrs. Touche Ross & Co. are not parties to the proceedings in this Court. The only reason they are here is because they were served with a subpoena issued on behalf of the applicant, Jet Corporation of Australia Pty. Limited. The Director of Public Prosecutions has scaught to adopt this particular procedure and Messrs. Touche Ross & Co. are quite entitled ta come to the Court and put to the Court the matters they have done, and I see no reason why they should not be entitled to therr costs of the motion. The solicitor for the respondents to the proceedings in this Court has also asked for costs but, in my Opinion, they come into a different category. They have not produced documents pursuant to subpoena, although it is in their interest to be present here today and they had notice of the motion; I see no reason why they should get their costs. We are dealing with civil proceedings in this Court and whatever might be the normal practice in the criminal jurisdiction in the State courts in matters of this kind, I see no reason why the Director of Public Prosecutions should not pay the costs of Messrs. Touche Ross & Co.. It is also ' yn wa SS Creer ene oe - lo - desirable that liberty to apply be given; this can ke activated by any party at any time. Accordingly, the following orders are made:- 1. That the documents produced to the Court in this matter pursuant to subpoena by:- (a) Messrs. Cornwall Stodart & Co., Solicitors; (b) Messrs. Simon, [Endgett, Collingwood & Co., Stock Brokers; and (c) Messrs, Arthur Andersen & Co., Accountants, Be released into the custody of Mr. Roger Franich, Magistrate, presiding in the current preliminary hearing in the Melbourne Magistrates' Court of charges against Barry John Collier, Kelvin John Dyer, Andrew Sheppard Grimwade, Trevor Burton Huttley, and don Dean Wilson and to be returned to this Court at the completion of the criminal proceedings against those persons or until further order. Sot ee re tare renee = cart - ll - Upon Messrs. Touche Ross & Co. by its counsel undertaking that if the documents presently in the custody of the Federal Court of Australia in action V.No. G 1093 of 1983, pursuant to paragraphs (a) and (b) of the schedule to the subpoena dated 27 dune 1983, are returned to its custody, it will keep the said documents in safekeeping, that it will not tamper with, nor deface nor alter nor destroy the same, that it will forthwith return the said documents to the Federal Court of Australia upon a Judge of the said Court raquesting it to do so and that otherwise the documents wil} be retained by it and dealt with according to due and proper legal process and according to law, the Court Orders that the said documents be returned to the custody of Messrs. Touche Ross & Co. until further oarder. There is liberty to apply. It is ordered further that Messrs. Touche Ross & Co. be paid 16s costs of the motion by the Director of Public Prosecutions and the National Crime Authority and the informant. ! certity that thie and the den (10) "exerting pages are a fue copy of the ie2sons fo. Judgment herein of the Jonourable Mr. Justice R M Northea/ Sherer P U2Uecr Associate : Dated: Q¢| "eonans {ASX SS ITS Rt EE Rr UE a ey ee pe ees 2p wre: woe G ery