Rochfort v Trade Practices Commission [1982] HCA 66

High Court of Australia Gibbs C.J. Mason, Murphy, Aickin and Wilson JJ. Rochfort v Trade Practices Commission [1982] HCA 66

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 18 Gibbs C.J.

At the dates material to the present case the Australian Road Transport Federation (ARTF) was a body which consisted of eleven constituent organizations, one of which was another unincorporated association, National Freight Forwarders' Association (NFFA), which itself had seven members. The appellant was engaged by ARTF as its executive director. He was paid by ARTF, and worked in premises leased by ARTF, but his duties included the conduct of the secretarial affairs of NFFA, and he held also the title of executive director of NFFA. He was paid nothing by NFFA, but a fee was paid by NFFA to ARTF in respect of the duties which he performed for the former body. The appellant had the custody of certain documents prepared while he was performing duties relating to NFFA. In the course of proceedings brought in the Federal Court of Australia by the Trade Practices Commission against nine companies, four at least of which were members of NFFA, the appellant was served with a subpoena duces tecum, requiring him to produce certain documents. The appellant appeared before Bowen C.J. to answer the subpoena. He stated that certain documents were nearby in counsel's chambers but that he objected to producing them. On being sworn he took the objection that they were not in his personal possession, but were in the possession of NFFA, the members of that association and the executive of that association. Bowen C.J. held that the appellant was an employee of ARTF, and not of NFFA, and that in these circumstances he was obliged to produce documents owned by NFFA but in the appellant's possession and control. An appeal to the Full Court of the Federal Court was dismissed. For somewhat different reasons, the learned judges who constituted the Full Court agreed that the appellant did not have possession of the documents as a servant of NFFA. Smithers J. added that the possession which the appellant had acquired "as a person under duty to deal with the documents in the interests of NFFA was necessarily possession full and unqualified". The matter now comes to this Court on appeal by specia' leave.