Re Air Pacific Ltd v Transport Workers Union of Australia; Transport Workers' Union of Australia, New South Wales Branch; John Price and John Mclean [1993] FCA 6; (1993) 14 Atpr 41-217 (1993) 4 (22 January 1993)

FEDERAL COURT OF AUSTRALIA

Re: AIR PACIFIC LTD
And: TRANSPORT WORKERS UNION OF AUSTRALIA; TRANSPORT WORKERS' UNION OF
AUSTRALIA, NEW SOUTH WALES BRANCH; JOHN PRICE and JOHN MCLEAN
No. N G18 of 1993
FED No. 40
Number of pages - 15
Practice and Procedure
[1993] FCA 6; (1993) 14 ATPR 41-217
(1993) 40 FCR 1

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Practice and Procedure - subpoenas - application to set aside - whether privilege applies to subpoena addressed to proper office of company - whether privilege can be claimed before documents are produced to the court or relates only to access - whether limitation of access to legal advisers giving undertaking not to use documents for purposes of criminal proceedings prevented possibility of self-incrimination arising - subpoenas - whether necessary to expressly confine documents required to be produced to those in the possession, custody or control of addressee - whether obligation on addressees to seek out documents not in possession, custody or control - subpoenas - whether subpoena ambiguous or too wide.

Trade Practices Act 1974: s.76(2).

Concrete Constructions v Plumbers and Gasfitters Employees' Union (1987) 15 FCR 31; distinguished.

Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134; approved.

Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118; approved.

Penn-Texas Corporation v Murat Anstalt (No 2) (1964) 2 QB 647; approved.

Re BPTC Ltd (in liquidation) (1992) 8 ACSR 533; approved.

Trade Practices Commission v Arnotts (1990) TPR 41-010; applied.

Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478; applied.

Universal Press Pty Ltd v Provest Ltd (unreported, 20 July 1989); approved.

Master Builders Association of NSW v Plumbers and Gasfitters Employees' Union of Australia (1987) 14 FCR 479; distinguished.

Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204; discussed.

HEARING

SYDNEY, 22 January 1993
22:1:1993

Counsel and Solicitors Mr J L Trew QC and Mr A S Martin
for Applicant: instructed by Freehill Hollingdale and

Page

Counsel and Solicitors Mr B J Shaw QC instructed by

for First and Third Ryan Carlisle Thomas
Respondent:

Counsel and Solicitors Mr J P Phillips instructed by

for Second and Fourth McClellands
Respondents:

ORDER

The Court orders that:

1. The several motions of the respondents and Mr Smith to set
aside subpoenas addressed to them be dismissed.
2. Costs of the motions reserved.

The Court directs that:

3. Each of the subpoenas to be complied with as if the first
paragraph of each read as if the words "Air Pacific Ltd"
were deleted and there were substituted "any ban or
restriction affecting in any way the operatives by Air
Pacific of any commercial aircraft".
4. The subpoenas addressed to the first and second respondents
be complied with as if the words "other documents" were
deleted from the third paragraph of them.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

HILL J. Each of the respondents in this matter and a Mr Smith have moved the court to set aside subpoenas served upon it or him, as the case may be. The first respondent is a federally registered union. The second respondent is registered under state legislation. No point is now taken as to the separate legal identity of the first and second respondents and for the purposes of the present motion this is assumed. The parties have accepted that each of the respondents is a proper party to the main proceedings, that each has been served and has appeared and that separate subpoenas have been served upon each of them.

2. Having regard to the urgency of the matter, I announced yesterday the orders proposed and indicated that I would give my reasons this morning. I now do so.

3. The subpoenas against the first and second respondents are addressed to the respective union "by its proper officer". For relevant purposes, each of the subpoenas addressed to the unions is in identical terms and the documents required to be produced by the individuals are the same as those required to be produced by the unions, save as to the third category of documents. By way of example, the documents called for in the subpoena to the Transport Workers' Union, New South Wales branch by its proper officer are enumerated as follows:

"1. All original and copy correspondence,
letters, notes, file notes, diary notes,
reports, minutes of meetings, facsimiles,
notes of telephone conversations and
documents relating to Air Pacific Limited,
during the period from 1 January 1991 to
the date of the issuing of this subpoena
between:
(a) Any member, delegate or officer of
the Transport Workers' Union of
Australia or the New South Wales
Branch of the Transport Workers'
Union of Australia;
(b) Any member, delegate or officer of
the Fijian Trades Union Congress;
(c) Any member, delegate or officer of
the Fijian Aviation Workers Association;
(d) Mr Attar Singh;
(e) Mr Valentine Simpson;
(f) Mr John Price;
(g) Mr John McLean;
(h) Mr Gordon Smith.
2. All original and copy correspondence,
letters, notes, file notes, diary notes,
reports, minutes of meetings, facsimiles,
notes of telephone conversations and
documents relating to the imposition of
any ban or restriction affecting in any
way the operation by Air Pacific Ltd of
any commercial aircraft from 1 January
1993 to the date of the issuing of this subpoena.
3. All original and copy annual lists,
registers and other documents recording
the membership of the Transport Workers'
Union of Australia from 1 January 1992 to
the date of the issuing of this subpoena."

4. The moving parties seek that the subpoenas be set aside upon the basis that compliance with them might tend to incriminate the addressees of the subpoenas or expose them to a penalty. Alternatively, it is said that the subpoenas are too wide, oppressive and ambiguous so that they should be set aside or alternatively amended and read down.

5. Senior counsel for the first and third respondents, whose submissions were adopted by the other moving parties, frankly admitted the difficulty posed to his first submission by the decision of Wilcox J. in Concrete Constructions v Plumbers and Gasfitters Employees' Union (1987) 15 FCR 31.

6. In that case, and in respect of subpoenas addressed either to the proper officer of the union or the secretary of the union as the case may be, his Honour refused to set certain subpoenas aside upon the basis that compliance might tend to expose the recipients to a penalty. There are a number of reasons for his Honour's decision. They may be summarised as follows:

1. The common law privilege against self-incrimination,
including within the meaning thereof the privilege to
refrain from producing documents which might tend to expose
a person to a penalty, applies to a corporate body as it
applies to an individual.
2. No question of the privilege could arise where the subpoena
was addressed to an individual in a case such as the present
rather than to the union, because s.76(2) of the Trade
Practices Act 1974 makes it clear that an individual is not
liable to a penalty in a case arising under Part IV of that
Act.
3. The privilege may only be claimed at the point at which the
risk to actual incrimination arises. No risk arises merely
from the production of documents to a court. Rather, the
question will arise, if at all, only at the time access is
sought by a person free to use the documents for the
purposes of criminal proceedings.
4. The Court could impose conditions upon access which would
preclude the use of the documents sought in criminal
proceedings.

7. In the result, his Honour refused to set aside the subpoenas and granted access to certain documents, limited, however, to counsel and solicitors who gave undertakings not to use the information contained in certain documents for the purposes of any criminal proceedings. Counsel for the moving parties submitted that the decision was wrong and should not be followed. He accepted that I should, as a single judge, follow it unless I formed the view that it was wrong. I should say at the outset that I have not formed that view.

8. There are difficulties with some of the propositions set out above in their application to the present case. As the law in Australia presently stands, the privilege applies to corporations. This was assumed to be the law in Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134, a case which, however, dealt with a subpoena addressed to certain unincorporated associations. It was held to be the law by the Court of Criminal Appeal in New South Wales in Caltex Refining Co Pty Limited v State Pollution Control Commission (1991) 25 NSWLR 118.

9. The High Court granted special leave to appeal from the decision of the Court of Criminal Appeal and I was told from the bar table that the appeal had been argued and judgment reserved. Nevertheless I would, at this stage, accept as correct the decision of the New South Wales Court of Criminal Appeal, unless I am again convinced that it was wrong or that it was inconsistent with authority binding upon me. Neither party sought to argue that the privilege had no application to corporations and, accordingly, I make no further comment on that issue.

10. The subpoenas addressed to the unions in the present case differ from those addressed to the unions in Concrete Constructions. Here, the subpoena is not addressed directly to the proper officer of the union. It is addressed to the union itself albeit "by its proper officer". A practical difficulty of subpoenas addressed to corporate bodies received consideration in Penn-Texas Corporation v Murat Anstalt (No. 2) (1964) 2 QB 647. Lord Denning, after considering subpoenas addressed to individuals, turned to the question of subpoenas addressed to corporations. His Lordship said (at 663):

"The question arises, what is to be done when
the documents are in the possession of a
company? How is the court to compel production
of them? One thing is quite clear. It is no
good serving a subpoena duces tecum on any of
the officers or servants of the company: for
each of them can say that he has no authority
from the company to produce them, and that would
be an end of any proceedings against him: see
Crowther v Appleby and Eccles and Co v Louisville
and Nashville Railroad Co. The only thing to do
is to serve a subpoena duces tecum on the
company itself, requiring it, by its proper
officer, to give evidence and produce the
documents. That is what was done in Rex v Daye.
And it seems to me to be the only way in which a
company can be compelled to produce documents
which are in its possession or custody. The
command or requirement on the company is
comparable to an order on a company, by its
proper officer, to file an affidavit of
documents or to answer interrogatories. The
officer answering must make inquiries of the
other officers as to the documents and must them
produce them on behalf of the company: See Bank
of Russian Trade Ltd v British Screen
Productions Ltd. The only limitation is that
the subpoena must be issued for the purposes of
the trial, and not for the purposes of discovery
beforehand."

11. What was there said (subject to qualification so far as the requirement of a corporation to give evidence) was approved by Stephen J. in Smorgon v Australia and New Zealand Banking Group Limited [1976] HCA 53; (1976) 134 CLR 475 at 484. In Re BPTC Limited (in liquidation) (1992) 8 ACSR 533 at 539, McClelland J. also took the view, with which, with respect, I agree, that an order addressed to a corporation to produce documents by its Proper Officer is an order to the corporation itself. The description "Proper Officer" as his Honour points "is not necessarily descriptive of any particular individual identifiable in advance".

12. It follows, in my view, that to the extent that the decision of Wilcox J. depended upon the fact that the subpoenas were addressed to the individual rather than the union, the decision is distinguishable.

13. I think, however, that the significant part of his Honour's decision for present purposes is to be found in the third and fourth propositions. In Refrigerated Express Lines (Australasia) Pty Limited v Australian Meat and Livestock Corporation (1979) 42 FLR 204, Deane J. distinguished in the context of excusing discovery or answering interrogatories in limine on the basis of the privilege, cases where the proceedings were to prevent or redress a civil wrong from those where the proceedings were for the recovery of a penalty. His Honour said (at 207-8):

"It is a well-established principle that a
defendant in proceedings which are solely for
the recovery of a pecuniary penalty should not
be ordered to disclose information or produce
documents which may assist in establishing his
liability to the penalty (see, generally, per
Isaccs J. in R v Associated Northern Collieries
[1910] HCA 61; (1910) 11 CLR 738 at 741-748; Naismith v
McGovern [1953] HCA 59; (1953) 90 CLR 336 at 341-342 and Martin
v Treacher (1886) 16 QBD 507. Even where, as in
the present case, the proceedings are not for
recovery of a penalty but to prevent and redress
civil injury, a party to litigation ought not to
be compelled to provide information or produce
documents for inspection by the other party if
the result thereof will be to provide evidence
against him which may be used to establish his
liability to a penalty...".

14. Thus, the decision of Gray J. in Master Builders Association of New South Wales v Plumbers and Gasfitters Employees' Union of Australia (1987) 14 FCR 479 where his Honour set aside a subpoena addressed to the Proper Officer of the union is distinguishable, for that was a case for recovery of a penalty and so fell on the other side of the line from that involved in Concrete Constructions. See the decision in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 57 ALJR 236. I should mention that Gray J. in the Master Builders case expressed the view that there was no difference in principle between an application for discovery or to answer interrogatories on the one hand, and an application for the issue of a subpoena on the other. For this proposition his Honour relied on what was said by Franki J. in Trade Practices Commission v TNT (1984) 1 FCR 172 at 176-7. I am content to accept that this is so, although in truth, an order for answers to interrogatories involves potential admissions to the other parties to the proceedings and inspection, if not discovery, involves producing documents to the other parties. In contrast a subpoena is an order of the court addressed to a person requiring production of documents to the court itself, and of itself has no effect inter partes.

15. With respect, however, I agree with Wilcox J. that it can be no objection to a subpoena to produce documents in ordinary civil litigation that to do so might expose the addressee of the subpoena to a penalty. The mere compliance with the order does not operate to waive the privilege, and production to the court exposes the person producing the documents to no risk. Certainly counsel for the moving parties here could not suggest any danger in the present case to their client. Nor can any risk to any party be suggested to arise if the procedure raised by Wilcox J. in Warman International Limited v Envirotech Australia Pty Limited (1986) 11 FCR 478, and implemented in Concrete Constructions, be adopted. This procedure involves the grant of access of documents, which may give rise to the privilege, being restricted to the barristers and solicitors for the parties, on their giving undertakings not to make use of the contents of the documents produced for any purpose other than the litigation.

16. If there be any dispute as to whether particular documents are the subject of privilege, the court may inspect the documents and determine that issue for itself. There must be reasonable grounds for the privilege which may be found either in the circumstances of the case, or in matters put forward by the parties subpoenaed. Some academic support for the position taken by Wilcox J. is to be found in McNicholl, Law of Privilege, Sawell Company, 1992, 184-5. Accordingly, I would not set aside the subpoenas but would now indicate that if access be required by the applicants, I would grant that access only to legal advisers, and then only on terms that an appropriate form of undertaking be given.

17. If requested, I will examine the documents produced and determine which documents fall within the claim for privilege. Any documents in respect of which no privilege is claimed will obviously be subject to no restriction on access.

18. I would also not set aside the subpoenas on the basis that they are ambiguous, too wide or too onerous to comply with. In so saying, I note that the uncontradicted evidence for the first respondent was that the federal union had an excess of 110,000 members and 130 offices throughout Australia and 2,500 delegates.

19. I turn to deal with specific criticisms of the subpoenas.
Clause 1 of the Description of Documents
It was submitted that the first paragraph of the list of documents sought was too wide because the documents in question were described as those "relating to Air Pacific Limited in the period 1/1/91 to date". Many of those documents might have had no relevance to the matter in controversy between the parties. There is something to be said for the argument. To ensure that the subpoenas are not too wide, I adopt the suggestion of counsel for the applicants that they be amended, limiting the documents to be produced. This may most easily be achieved by deleting the words "Air Pacific Limited" and substituting "any ban or restriction affecting in any way the operation by Air Pacific of any commercial aircraft".

20. The second criticism was that the first paragraph was ambiguous because it was uncertain whether documents required to be produced were documents between, say, one member of the union and another person referred to in para.(a), or whether the proper construction was that the documents required were those between a person named in one of the lettered paragraphs and a person named in another paragraph. With respect, I do not think that there is any real ambiguity. The words at paragraph (a) are in the singular, they are not in the plural. They cannot be read, for example, as requiring production of correspondence between members of the union. Rather, the paragraph properly construed requires production of correspondence between any one person referred to in one of the paragraphs and another person referred to in another paragraph.

21. The third criticism made was that the subpoenas required production of documents which might be in the possession of any member, delegate or officer or for that matter, any other persons named. Having regard to the number of members, delegates and officers, this would, so it was said, require interviewing each officer, member or delegate to see what documents existed. The subpoenas were not confined, so it was said, to documents in the possession, custody or control of the addressee. This submission may be shortly answered.

22. One might have expected the rules of the court dealing with subpoenas to have restricted the documents required to be produced to those which are in the possession, custody or control of the addressee of the subpoena or those which he or she in fact has the ability to produce. There is indeed something to be said for the view that the form of subpoenas to be used should do so. I refer to what I said on this matter in Universal Press Pty Limited v Provest Limited (unreported, 20 July 1989). A person to whom a subpoena is directed is not required to seek out documents not in their own possession and power and produce them to the court. Compare O'Brien v Commissioner for Government Transport (1960) 77 WN 11. As Gibbs J. said in Rochfort (at 138-9):

"A person who is properly served with a subpoena
duces tecum in due form requiring him to produce
specified documents must (subject to payment of
any necessary conduct money) attend at the place
directed by the subpoena and produce such of the
specified documents as are in his possession.
If the documents are not in his possession,
however, he is not obliged to endeavour to
acquire them from the person who has possession
of them, 'no man being obliged, according to any
sense of the effect of such a subpoena, to sue
and labour in order to obtain the possession of
any instrument from another for the purpose of
its production afterwards by himself, in
obedience to the subpoena'."

23. It is unnecessary that the form of the subpoena limit the documents required to be produced to those in the possession and power of addressees. Such a limitation is to be implied from the very nature of the subpoena of itself. Cf per Mason J. in Rochfort (at 143) where his Honour said:

"Neither the Federal Court Rules nor the form of
the subpoena issued by the Court explicitly
limit the obligation to produce documents owed
by a person served with a subpoena to documents
which he holds. The subpoena, which has the
effect of a court order, requires the person to
whom it is addressed to produce the documents
which it describes. It assumes that he has the
ability or capacity to produce them. At times
this idea has been expressed by saying that the
person served is bound to produce any document
which is in his possession, custody or control.
But these statements should not be allowed to
obscure the true effect of the subpoena - it binds
a person who can produce the documents to do so."

Paragraph 2 of the description of documents

24. The next criticism was that para.2 was too wide in its use of the word "restrictions" as well as "bans". In my opinion, there is, with respect, no substance to this criticism. The word "restriction" does not unreasonably open the category of documents sought so as to have no adjectival relevance to the proceedings. Accordingly, no abuse of process is involved in the issue of this submission. To adopt the test proposed by Beaumont J. in Trade Practices Commission v Arnotts (1990) TPR 41-010, there is an apparent relevance to the issues in the principal proceedings here, proceedings in respect of an alleged secondary boycott.

Paragraph 3 of the description of documents 25. The final criticism, relevant only to the subpoenas directed at the unions, was addressed to the use of the words "other documents" in para.3. It was said not to be relevant to the litigation, or oppressive, that in addition to the specific documents enumerated, there should be required to be produced all other documents recording, inter alia, membership of the respective unions. In my view, the paragraph is unnecessarily wide having regard to the matters involved in the litigation. Counsel for the applicants conceded that the applicants would be content if the subpoenas were complied with as if the words "other documents" were deleted. Accordingly, I would order that the subpoena should be so complied with. I should say that the parties and the community would be better served if the legal advisers could, where a subpoena is said to be too wide, confer between themselves before agitating the matter in Court, as experience suggests that agreement can readily be reached as to satisfactory compliance without the need for the time of the court to be taken up and additional costs to be incurred.

26. It follows, therefore, that I would not set aside the subpoenas, but would require performance of them on the basis that the descriptions of the documents in para.1 and 3 be read as hereinbefore discussed.

27. Costs are reserved.