(TEE SE TP JUDGMENT No. vedo senseveeene COMMONWEALTH OF AUSTRALIA TRADE PRACTICES ACT, 1974 IN THE TRADE PRACTICES TRIBUNAL NSW 5 of 1987 RE: JOHN DEE (EXPORT) PTY. LIMITED & ORS. Applicants RE: Application for a_ Review of a Determination made by the Trade Practices Commission dated I October 1987 ORDER MADE BY: LOCKHART J. (President) WHERE ORDER MADE: SYDNEY DATE OF ORDER: 23 DECEMBER 1988 MINUTE OF ORDER THE TRIBUNAL ORDERS THAT: 1. The matter be stood over to a date to be fixed for the purpose of determining the question of the class or classes of costs and expenses to which the Victorian Stock and Station Agents Association is entitled. COMMONWEALTH OF AUSTRALIA TRADE PRACTICES ACT, 1974 IN THE TRADE PRACTICES TRIBUNAL NSW 5 of 1987 RE: JOHN DEE (EXPORT) PTY. LIMITED & ORS. Applicants RE: Application for a Review of a Determination made by the Trade Practices Commission dated I October 1987 23 December 1988 REASONS FOR DECISION LOCKHART J., President The question in this matter is whether the Trade Practices Tribunal has power to order payment of the costs and expenses of a person, upon whom a summons. to appear before the Tribunal and to produce documents has been served, of and incidental to searching for, collating and copying documents. The question arose in the course of the hearing by the Tribunal of an application by John Dee (Export) Pty. Limited ("John Dee") for a review of a determination made by the Trade Practices Commission. At the request of John Dee the Tribunal issued a summons directed to the Secretary of The Victorian Stock and Station Agents Association ("the > Association") requiring him to appear before the Tribunal and to produce certain documents of the Association, Initially the Association sought to set aside the summons on the ground that it was too wide and that compliance with it would be oppressive. Following discussions between counsel and solicitors for John Dee and for the Association, and with the concurrence of the Tribunal, the parties agreed to convert the application to set aside the summons into an arrangement by which the Association would search for, collate and copy documents which were more clearly and narrowly defined than the classes of documents described in the summons; the definition of the documents and classes of documents being made by counsel and solicitors for John Dee in discussion with counsel and solicitors for the Association. John Dee and the Association honoured the arrangement and from time to time documents were produced to the Tribunal or handed over by the Association to John Dee's' solicitors in accordance with the procedure mentioned earlier. This was a sensible and practical course to follow. The course adopted save sterile debate in the course of a difficult and lengthy hearing of John Dee's application for review, about the sufficiency of the description of documents in the summons. It resulted in John Dee's obtaining production of documents which in truth it needed for presentation of its case, but which, I suspect, it may not have been able to obtain other than by an arrangement of the kind mentioned earlier. The Association now seeks an order that John Dee compensate it for costs or expenses reasonably incurred in complying with the summons, including the costs of searching for, collating and copying the documents; the costs of obtaining legal advice from solicitors and _ counsel in relation to the summons and counsel's fees of appearing before the Tribunal in response to the summons. The question which presently arises is whether the Tribunal has power to order payment by John Dee of costs and expenses of this kind. It was conceded by John Dee that, if the requisite power exists, the Tribunal should order' that John Dee pay a reasonable sum as compensation to the Association, though the questions of the classes of expense and quantum were left open because the evidence in support of these matters is sparse at this stage. The course which I propose to take is to deal first with the question of the Tribunal's power to make the order sought; if I find that the power exists, to direct that further evidence be filed by the Association and by John Dee if it wishes to rebut that evidence; and then either to deal with the question myself or to remit it to the Registrar of the Tribunal with a view to its coming back to me after' the Registrar has certified the costs and expenses found to be payable. 4. The Tribunal's jurisdiction under the Trade Practices Act 1974 ("the Act") is derived from s. 101 and is to review determinations by the Commission in relation to applications for or revocations of authorisations. Section 103 of the Act is directed to the powers of the Tribunal with respect to procedure in proceedings before it and is in the following terms: "103(1) In proceedings before the Tribunal - (a) the procedure of the Tribunal is, subject to this Act and the regulations, within the discretion of the Tribunal; (b) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a _ proper consideration of the matters before the Tribunal permit; and (c} the Tribunal is not bound by the rules of evidence. (2) The powers of the Tribunal with respect to matters of procedure in particular proceedings may be exercised by the Tribunal constituted by a presidential member." Sub-section 105(2) empowers a member of the Tribunal to summon a person to appear before the Tribunal to give evidence and to produce such documents (if any) as are referred to in the summons. The form of summons" prescribed pursuant to regulation 25 of the Trade Practices Regulations ("the Regulations") is Form K which requires the person to whom it is directed to attend before the Tribunal at the place and time nominated for the purpose of giving evidence 5. + in the proceedings, and, if necessary, to bring with him and produce the documents described in the summons. The failure of a person, who has been served as prescribed with a summons, to appear as a witness before the Tribunal, without reasonable excuse, constitutes an offence against the Act punishable on conviction, in the case of a natural person by a fine or imprisonment, and, in the case of a body corporate, by a fine (s. 160). It is an offence for a person appearing as a witness before the Tribunal, without reasonable excuse, to refuse or fail to produce a document that the person was required to produce by' a summons under the Act served on him as prescribed. The offence is punishable on conviction by the same penalties as are prescribed under s. 160 for the failure of a witness to attend (s. 161). The meaning of "procedure" has been considered by the courts many times. See, for example, Wright v Hale (1860) 30 LJ(NS) 40 at 42; Attorney-General v Sillem (1864) 10 HLC 704 per Lord Westbury L.C. at 723; 11 ER 1200 at 1209; White v White (1947) VLR 434 per curiam at 438, adopting the description in Salmond on Jurisprudence, 10th ed., p. 476 of "procedural law" as dealing with "the means and instruments" by which the ends of justice are to be obtained; Gosper v Sawyer (1985) 160 CLR 548 per Mason, Deane JJ. at 563-4. See also Sir Jack Jacob, "The Reform of Civil Procedural Law", reprinted in The Reform of Civil Procedural Law and Other 6. + Essays in Civil Procedure, 1982, at pp. 2-3; and Professor Enid Campbell, Rules of Court, 1985 especially at 66-70. "Procedure" is aterm of the widest import. It is frequently associated with the term "practice", but "procedure" probably has a more expansive meaning. Where used in para. 103(a) of the Act in placing the procedure of the Tribunal within the Tribunal's discretion, subject to the Act and the Regulations, in my opinion the word "procedure" includes the whole course of procedure and practice before the Tribunal from the filing of the initial application for review of the Commission's decision to the making of final orders by the Tribunal after the review has been completed. It comprehends all steps which are necessarily taken in the application before the Tribunal including the acts of its members and officers. Plainly it encompasses the issue of summonses to persons to attend before the Tribunal and give evidence or produce documents; securing compliance with summonses; and, in appropriate cases, setting them aside. It is generally accepted that the Tribunal has no power to order participants in proceedings before it to pay the costs of other participants of the proceedings. Certainly no such power has been expressly conferred by the Act or the Regulations. Sir Samuel Griffiths said, when Chief Justice of the Supreme Court of Queensland, in R. v The Justices of South Brisbane, Ex parte Zagami (1901) 11 QLJ 81 at 83 that there is no power at common law in tribunals to award costs and that "costs are entirely the creation of statute". His 7. Honour was there referring to costs incurred by parties to proceedings, not costs and expenses of persons, whether parties or not, of complying with subpoenas, that important distinction was recognised by Sheppard J. in Bank of New South Wales v Withers (1980) 35 ALR 21. Sheppard J. there considered the question whether a person upon whom a subpoena which had been issued by the Federal Court had been served, and who had been required to produce documents, was entitled to his expenses of searching out, collating and copying those documents in the absence of express provision in the Rules of the Court in the form which they took at the time the application was heard before his Honour. His Honour found that the term "costs", in the context of the Federal Court Act 1976 and the Federal Court Rules, signified the sum of money which the Court ordered one party to pay another party in respect of expenses of litigation incurred by the other; and his Honour distinguished between "costs" in that sense and the entitlement of persons subpoenaed to produce documents to recovery of the costs and expenses of complying with the subpoena (at 25). Sheppard J. extensively reviewed the authorities concerning the question of the Federal Court's power to order a party who secured the issue of a subpoena to a person to produce documents to pay the costs and expenses of the person subpoenaed of searching out, collating and copying the documents. His Honour concluded that, in the absence of provision in the Rules of the Federal Court, there could be no recovery of such costs and expenses. Subsequently the 8. Federal Court Rules were amended to include Order 27 rule 4A to overcome the difficulty adverted to by his Honour. Before Order 27 rule 4A came into operation there was doubt as to the Federal Court's power to order a party to pay to a person subpoenaed an amount to compensate him for loss or expense incurred in complying with the subpoena. Sheppard J.''s judgment exemplifies that doubt. It is open to question, in my view, whether this power of the Federal Court existed before the promulgation of Order 27 rule 4A and whether the rule was inserted of necessity or to remove doubt or for more abundant caution. Sheppard J.'s reasoning and the cases to which he referred concern courts and rules of court. Those cases are not, in my view, applicable to the Tribunal, an administrative body with specific administrative functions and governed by statutory provisions, such as s. 103 of the Act, which generally are not to be found in statutes or rules which govern the practice and procedure of courts. In my opinion, although the Tribunal may not be empowered to order participants in proceedings before it to pay the costs of other participants, a distinction must be drawn between costs in that sense and the costs of persons who are summoned to appear before the Tribunal to give evidence or to produce documents of complying with the summons issued by the 'Tribunal in the exercise of its compulsory statutory power to secure the attendance of witnesses and documents. The Tribunal has power to summon persons to appear before it and give evidence or produce documents. The Tribunal must have power to set aside summonses on appropriate grounds and to order payment of costs of applications to set summonses aside, the power either arising by implication from the Tribunal's express power to summon persons to attend or as being incidental to that express power. The Tribunal is an administrative body, the procedure of which is, subject to the Act and the regulations, within its discretion (s. 103). It is expressly empowered to determine its own procedure, required to conduct its proceedings with as little formality and technicality and as much expedition as the requirements of the Act and a proper consideration of the matters before it permit and is not bound by the rules of evidence (sub-s. 103(1)). The power of issuing summonses and compelling the attendance of witnesses and documents is a necessary incident of the Tribunal's power of review under s. 101. The issues before the Tribunal relate to business practices; to questions of competition, of public benefit and of anti-competitive detriment; and generally involve complex questions of fact requiring the production of substantial numbers of documents. The production of such documents, of course, requires considerable work by the persons summoned in searching for, collating and producing the documents. 10. The Tribunal could not properly perform its functions if persons did not fully and carefully perform the duties which summonses direct them to perform in producing documents to the Tribunal at hearings before it. The costs and expenses incurred by persons in performing those duties are in my view necessarily related or incidental to the performance of their statutory obligation to comply with summonses' served upon them. The Tribunal's power to issue summonses and to order persons who procure their issue to pay the costs and expenses of the persons to whom they are directed and who produce documents in compliance with the commands of the summonses are all within the scope of the Tribunal's power to determine its procedure (sub-s. 103(1)). While the power to issue summonses is expressly conferred by sub-s. 105(2), in my view the power to make orders in relation to the issue of such summonses, including orders for the payment of expenses resulting from compliance, are implied from or are incidental to the power of the Tribunal to summon persons to appear before it and produce documents. Emphasis is given to these conclusions when regard is had to the sanctions which may be invoked against persons who fail to attend as required by summonses (s. 160) or who refuse or fail to produce documents that they are required to produce by summonses (s. 161). 'I should note, however, that in Re Legal and_ General Life of Australia Limited and Minister for Territories and Local Government (1983) 5 ALD 476 the Administrative Appeals 11. Tribunal (A.N. Hall, Deputy President, J.D. Horrigan and C.A. Woodley (members)) concluded that the decision in Bank of New South Wales v. Withers was equally applicable to that Tribunal and that costs incurred by witnesses in collating material in response to summonses issued in the matter were not allowable. The reasons given by the Full fTfribunal for that conclusion were that Schedule 2 to the Administrative Appeals Tribunal Regulations made only limited provision for the payment of allowances and expenses to witnesses summoned to appear before the Tribunal, namely, a daily allowance for each day on which they appeared anda reasonable amount in respect of their conveyance to and from the places at which they attended, and, if they were required to be absent overnight from their usual places of residence, a reasonable amount for meals and accommodation. Although sub-s. 33(1) of the Administrative Appeals Tribunal Act is in substantially the same terms as_ sub-s. 103({1) of the Act, there are differences in the two statutory schemes with respect to payments to witnesses. Section 67 of the Administrative Appeals Tribunal Act confers an entitlement on a person who is summoned to appear as a witness before the Administrative Appeals Tribunal to be paid "fees and allowances for expenses, fixed by or in accordance with the regulations in respect of his attendance". Regulation 16 of the Administrative Appeals Tribunal Regulations provides that a person summoned to appear before 12. the Tribunal is entitled to be paid such fees, and allowances for expenses, in respect of his attendance, in accordance with the scale in Schedule 2, as determined by the Tribunal or by a presidential member. Schedule 2 was summarised by me earlier. The Act, the Regulations and the Schedules to the Regulations have no provisions equivalent to s. 67, regulation 16 or Schedule 2. In The Legal and General Life Case the Administrative Appeals Tribunal appears to have perceived a statutory scheme which was consistent with the reasoning of Sheppard J. in Bank of New South Wales v Withers and accordingly led the Tribunal to conclude that costs incurred by witnesses in collating material were not allowable. That case is distinguishable from the present case because no such statutory scheme is discernible in the Act, Regulations and the Schedules to the Regulations. Certain of the cases to which Sheppard J. referred in Bank of New South Wales v. Withers (supra) are authority for the proposition that a person subpoenaed to attend court may be entitled to sue the party to the suit who has' subpoenaed him if a promise to pay was expressly given or may be inferred from the circumstances. The facts of the present matter may give rise to such an entitlement for the benefit of the Association. I do not say that they do because it is neither necessary nor appropriate for me to express a view on that question. Whatever may be the answer to that question, 13. the Tribunal has power to make orders entitling the Association to reimbursement of the costs and expenses which it has incurred in complying with the summons issued to it. The particular costs and expenses to which the Association claims reimbursement from John Dee are described in the evidence as follows: Freight and packaging $ 186.00 Taxi fares of executive director to Federal Court, Sydney plus meals $ 40.00 Solicitors' costs, Melbourne and Sydney' $ 7976.00 Telephone calls Melbourne/Sydney $ 104.11 Counsel's fees $ 5625.00 Copying documents required for day to day operations, prior to producing originals in Sydney $ 200.00 Staff time in extracting documents from records $ 300.00 $14,431.11 In the absence of further details about those costs and expenses I am unable to express a view as to whether' they are of a kind which may be recovered by the Association or the quantum thereof. The course which I propose to follow is to stand this matter over to a date to be fixed when I shall determine at 14. least the question of the class or classes of costs and expenses to which the Association is entitled. I certify that this and the preceding thirteen (13) pages are a true copy of the reasons for decision herein of the Honourable Mr. Justice Lockhart, President, Trade Practices Tribunal. Associate AI Rod Date: 23 December 1988 15. Counsel for Victorian Stock and Station Agents Association: Solicitors for Victorian Stock and Station Agents Association: Counsel for John Dee (Export) Pty. Ltd.: Solicitors for John Dee (Export) Pty. Ltd.: Date of Hearing: Date of Decision: Mr. P. Dowdy Blake Dawson Waldron Mr. M. Cashion Allen Allen & Hemsley 8 December 1988 23 December 1988