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[1989] FCA 248
Federal Court of Australia
1989-07-07
Beaumont J
Original judgment source is linked above.
The application to set aside para. 2 of the subpoena
50. It will be recalled that this required production of "(a)ny file or files from which a Document has been removed since 1 September 1988". It is submitted, on behalf of Mattingly, that para. 2 is oppressive because the term "file" is ambiguous.
51. I cannot accept the submission. In my view, "file" is sufficiently definite a term to enable Mattingly to identify what is sought.
52. However, the definition of "Document" in the subpoena picks up some items which, in my view, travel beyond the limits of adjectival relevance, i.e. sub-paras. (b), (c) (as to (b)), (d) (as to (b)), (e), (h) and (i). To this extent, this part of the subpoena is oppressive and should be set aside.
The application to set aside para.4 of the subpoena
53. It will be recalled that this paragraph requires the production of "(a)ll ledger entries, copy receipts, cheques, bank advices or other records of any payment received by Mattingly Pty. Limited since 1 August 1988 from any corporation which to the knowledge of Mattingly Pty. Limited has at any time since 1 January 1988 proposed to market in Australia or import into Australia any variety of biscuit."
54. On behalf of Mattingly, it is submitted that this paragraph is oppressive because the material sought could have no connection with the issues in the principal proceedings.
55. In my opinion, Arnotts have failed to establish that this material has adjectival relevance for the purposes of the principal proceedings.
1. Order that para. 1(a)(b), 1(a)(c)(b), 1(a)(d)(b), 1(a)(e),
1(a)(h), 1(a)(i), 1(b)(b), 1(b)(c)(b), 1(b)(d)(b), 1(b)(e),
1(b)(h), 1(b)(i), 1(c)(b), 1(c)(c)(b), 1(c)(d)(b), 1(c)(e),
1(c)(h), 1(c)(i) and para. 2(b), 2(c)(b), 2(d)(b), 2(e),
2(h); and 2(i) of the subpoena dated 9 June 1989 is set
aside; otherwise the application to set aside paras. 1 and 2
of the subpoena is refused.
2. In respect of the call made on para. 3 of the subpoena, the
following directions are given:
(1) Mr. Studley should be sworn in this "ancillary"
application;
(2) Mr. Studley should then be examined by counsel for
Arnotts as a witness called by Arnotts;
(3) If he wishes, counsel for Mattingly may further examine
Mr. Studley;
(4) These directions are given without prejudice to (i) any
claim of privilege against self-incrimination which may
be made by Mattingly in the course of the examination of
Mr. Studley; (ii) any claim of confidentiality by
Mattingly;
(5) None of the evidence given in this application is to be
accepted as evidence in the principal proceedings or in
subsequent proceedings, if any, in which it is alleged
that there has been a failure to comply with the
subpoena.
3. Order that para.4 of the subpoena be set aside.
Re Trade Practices Commission
Arnotts Limited; Arnott'S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; 340 Practice 88 ALR 90
(See also Rochfort v. Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134 at p 143).
42. The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose (see Botany Bay Instrumentation and Control Pty. Ltd. v. Stewart (1984) 3 NSWLR 98 at pp 1OO-1). But, as Deane and Gaudron JJ. observed in Hamilton v. Oades [1989] HCA 21; (1989) 85 ALR 1 (at p 11); the Court's general powers in this area have a dual aspect:
"The inherent power of a court to control and supervise
proceedings includes the power to take appropriate
action to prevent injustice...(This) power...is not
restricted to defined and closed categories...In this
context injustice is not simply a question of the
purpose or motive for which the relevant proceedings
were instituted but includes a consideration of the
consequences of the proceedings for the person invoking
the power. The terms 'oppressive' and 'vexatious' are
often used to signify those considerations which
justify the exercise of the power to control
proceedings to prevent injustice, those terms
respectively conveying, in appropriate context, the
meaning that the proceedings are 'seriously and
unfairly burdensome, prejudicial or damaging' and
'productive of serious and unjustifed trouble and
harassment': Oceanic Sun Line Special Shipping Co Inc
v. Fay [1988] HCA 32; (1988) 62 ALJR 389 per Deane J at 411; [1988] HCA 32; 79 ALR 9
at 45."
(2) Unfair prejudice to Mattingly? A subpoena to produce documents must specify with reasonable particularity the documents which are required to be produced (see Lucas Industries Ltd. v. Hewitt (1978) 45 FLR 174 at p 188; R. v. Barton (1981) 2 NSWLR 414 at p 428; Lane v. Registrar of the Supreme Court of New South Wales [1981] HCA 35; (1981) 35 ALR 322 at p 332). But no such point is taken here. What is said by Mattingly to be the vice of this part of the subpoena is that it seeks, on its face, to call for documents which, if complied with, would require the compulsory surrender of a privilege, viz. the privilege against self-incrimination (cf. Federal Commissioner of Taxation v. Citibank Limited 89 ATC 4268 at pp 4277, 4293). Mattingly says that the apparent objective of this part of the subpoena is to extract from it material which could be used to incriminate it if proceedings for contempt of court were brought against it in which it was alleged that it interfered with the due administration of justice by causing the market research documents to be removed from the jurisdiction.
48. Because the jurisdiction to convict for contempt of court is directed to ensuring the effective administration of justice, it must follow that the jurisdiction should not be exercised unless the conduct in question has had the effect of interfering with the course of justice; and where there has been a technical contempt, brought about by special circumstances, the summary jurisdiction to convict ought not to be exercised (see John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1954) 93 CLR 351 at p 37O; Hancock v. Lynch [1988] VicRp 23; (1988) VR 173 at p 178).
(1982) 153 CLR 134
(1978) 1 NSWLR 372
(1984) 3 NSWLR 98
(1989) 85 ALR 1
(1988) 62 ALJR 389
(1978) 45 FLR 174
(1981) 2 NSWLR 414
(1981) 35 ALR 322
(1954) 93 CLR 351
(1979) 42 FLR 2
(1987) 13 FCR 389