Rochfort v Trade Practices Commission

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": Amey v. Long [1] . A subpoena duces tecum, or process having the same effect, is an essential means of securing the administration of justice, but, since the ends of justice are not to be obtained by illegal means, a person to whom a subpoena is addressed is not required to obtain improperly the documents of another, even though he may happen to have access to them. It is, perhaps, for this reason that it has been held that a person who has possession of documents only as a servant cannot be compelled to produce them if his master refused to allow him to do so: Crowther v. Appleby [2] ; Re Higgs; Ex parte Leicester [3] . Similarly, one partner has been held not compellable to produce books which were partnership property when the other partners would not consent to their production: Attorney-General v. Wilson [4] ; Lee v. Angas [5] . In Eccles & Co. v. Louisville and Nashville Railroad Co. [6] , attachment against a servant for failing to produce his master's books was refused, it not having been proved that the master had authorized production. I rather think that the importance of the decision has been overrated; it turned, in my opinion, on the fact that the majority of the Court were not satisfied that the applicant for a writ of attachment had discharged the onus of proving that the production of the documents by the witness would not have been in violation of his duty to his master. That appears from the judgment of Vaughan Williams L.J. [7] , and from that of Buckley L.J. [8] ; as the latter Lord Justice there pointed out, the power of issuing a writ of attachment for contempt must be exercised "in a very guarded manner". Kennedy L.J., who dissented, accepted that a servant who is told by his master not to produce documents belonging to him has a good excuse for non-production [9] , but rejected the propositions that the mere statement by a person required to produce documents that he has them as a servant is sufficient to justify a refusal to produce them, and that it is always the implied duty of a person who says that he has possession of documents merely as a servant to disobey an order for production. In my opinion the judgment of the majority does not establish the propositions which Kennedy L.J. rejected. InPenn-Texas Corporation v. Murat Anstalt [No. 2] [10] , Lord Denning M.R. said: "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 hem, and that would be an end of any proceedings against him." So it would, unless there were grounds to hold that the statement of the officer or servant should not be accepted.

1. (1808) 9 East 473, at p. 483 [103 E.R. 653, at p. 657]. 2. (1873) L.R. 9 C.P. 23. 3. (1892) 66 L.T. N.S. 296. 4. (1839) 9 Sim. 526 [59 E.R. 461]. 5. (1866) L.R. 2 Eq. 59. 6. [1912] 1 K.B. 135. 7. [1912] 1 K.B., at p. 145. 8. [1912] 1 K.B., at p. 147. 9. [1912] 1 K.B., at p. 152. 10. [1964] 2 Q.B. 647, at p. 663.

I have suggested that the person to whom the subpoena is directed should have possession of the documents, but it does not seem to me that it is necessary to inquire whether the person concerned is a bailee or a mere custodian. Some authorities use "custody" or "control" interchangeably with "possession" in this regard: see, e.g., Eccles [11] . The question is whether the servant has such possession, custody or control of the documents that he may bring them to court in obedience to the subpoena without violating his duty to his master. If he in fact brings them with him, that may show that he was entitled to do so, and in that event their production may be called for: Lee v. Angas [12] ; Crowther v. Appleby [13] .

1. [1912] 1 K.B., at p. 145. 2. (1866) L.R. 2 Eq., at p. 63. 3. (1873) L.R. 9 C.P., at p. 29.

The rules to which I have referred are not designed to enmesh legal proceedings in meaningless technicalities. Their purpose is to ensure that a subpoena duces tecum is addressed to the right person. It will not always be the case that a servant who has custody of documents will be the wrong person to require to produce them; his authority may be such that he can produce them without violating his duty to his master.

In the present case the appellant was in charge of the office where the documents were located. He would take instructions regarding the calling of meetings and the contents of the agenda from the president for the time being of the NFFA, but there is no suggestion that he had received any instructions, general or particular, as to the manner in which he should exercise his powers of control over the documents; on the contrary, he said that he never had any conversation with any member of the NFFA with regard to them. He did not seek or obtain authority to produce the documents, but, when served with the subpoena, gave (in his capacity as executive director) instructions to a solicitor, and apparently delivered the documents to him; at the trial they were in counsel's chambers. It is easy to conclude that the executive director of an amorphous body like NFFA is invested with wide authority to direct its affairs, and in the light of the circumstances to which I have referred it appears to me that the only possible inference is that the appellant's possession of the documents was, to use the words of Smithers J. in the Full Court, "full and unqualified", and that the appellant was entitled, without violation of his duty, to produce the documents in answer to the subpoena and therefore bound to do so. In these circumstances it does not seem to me necessary to consider whether the appellant was a servant of NFFA as well as of ARTF.

I need only add that the decision of this Court in James v. Cowan; In re Botten [14] throws no light on the present question. There a public servant, who had been served with a subpoena duces tecum, refused, at the direction of his Minister, to bring into court books which he admitted were in his possession. Starke J. thereupon ordered him to bring the books into court, and when, after an adjournment, he again refused to produce them, committeed him to prison for contempt of court. The decision affirms what is obvious, that a deliberate refusal to obey the order of a competent court is a defiance of the authority of the court and therefore a contempt.

What is the degree of possession, custody or control of documents required to sustain an application for an order to produce them under a subpoena? This is the main issue for decision in this appeal.

A subpoena duces tecum was served on the appellant in the course of proceedings brought by the respondent (the Commission) against nine companies, seeking penalties and injunctions under the Trade Practices Act 1974 Cth requiring him to produce a large number of documents. Some of these documents belonged to an unincorporated association, the Australian Road Transport Federation (ARTF); others belonged to another unincorporated association, the National Freight Forwarders' Association (NFFA). On the return of the subpoena the appellant gave evidence that, although he held the documents, they were not in his possession but were in the possession of the NFFA, its executive and members.

The appellant is executive director of ARTF. According to findings of fact made by Bowen C.J., who dealt with the matter at first instance, ARTF is a body consisting of eleven constituent associations including NFFA. As a member of ARTF, NFFA pays to it a subscription which is equal to about 27 per cent of the ARTF annual budget and a secretarial fee. This secretarial fee covers duties performed by the appellant for NFFA in his capacity as executive director of ARTF. The appellant was engaged as executive director of ARTF on the footing that part of his duties would include conduct of the secretarial affairs of the company and two associations, one of which was NFFA. In attending to these affairs he has the assistance of other members of the staff of ARTF.

The duties performed by the appellant in relation to NFFA included preparation of the agenda for meetings, sending out of notices, the keeping of minutes and the dissemination of those minutes. He held the title of executive director of NFFA and took instructions regarding the calling of meetings and the contents of the agenda from the president for the time being of NFFA. Although there seems to have been little expenditure by NFFA it had a bank account and the appellant counter-signed its cheques.

The appellant took over what documents there were relating to NFFA from the time of his predecessor Mr. Levitt and also had custody of the documents prepared during the period he himself was performing duties in relation to NFFA. He needed these documents to perform his duties.

The appellant has neither sought nor obtained any authority to produce to the court the documents mentioned in the subpoena either from ARTF or NFFA.

Bowen C.J. concluded that the appellant was an employee of ARTF, not of NFFA. Applying the decision of the English Court of Appeal in Eccles & Co. v. Louisville and Nashville Railroad Co. [15] he declined to order the appellant to produce the documents described in pars. (a), (b) and (d)(ii) of the subpoena, these documents being ARTF documents. However, his Honour ordered the appellant to produce the rest of the documents described in the subpoena, these being NFFA documents, on the ground that the Eccles principle merely inhibited the production by an employee of his employer's documents.

An appeal by the appellant was unanimously dismissed by the Full Court of the Federal Court. Smithers J., who indorsed the approach taken by Bowen C.J., also agreed with Sheppard J. who preferred the dissenting judgment of Kennedy L.J. in Eccles, thinking that it was supported by the decision of this Court in James v. Cowan; In re Botten [16] . Ellicott J. considered that the right of an employee to object to produce documents only exists where they are the employer's documents or the employer has some special obligations in relation to their possession. In passing I pause to say that Botten throws no light on the question which divided the Court in Eccles.

The appellant's case is that he was an employee of NFFA and that the Eccles principle applied. Alternatively, the appellant submits that he was custodian of the documents as the servant of ARTF and that the Eccles principle applied to such a situation. The evidence supports the findings of fact made by Bowen C.J. Accordingly, the case is to be considered on the footing that the appellant was an employee of ARTF, not of NFFA.

A party to litigation can compel a stranger to produce documents by serving on him a subpoena duces tecum. Once served with the subpoena and provided with the proper conduct money, he must obey it and bring to court the documents described in the subpoena if he has them, unless the writ is set aside on the ground that it is oppressive, and produce them to the court, unless he can establish some good reason why they should not be produced. A person called on by a subpoena duces tecum may be asked, without being sworn, whether he has brought the documents, and if so, whether he produces them. If he objects to produce them, he should state the grounds of his objection on oath so that the court may determine their sufficiency. See generally Commissioner for Railways v. Small [17] , per Jordan C.J.

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.

A special problem has arisen with respect to documents held by an employee in the course of his employment. In Amey v. Long [18] , Lord Ellenborough C.J., speaking for the Court, said that the sheriff's bailiff when served with a subpoena was bound to produce a warrant which he had "an immediate physical ability" to produce. However, subsequently in Crowther v. Appleby [19] it was decided that an employee was not bound to produce a document which he held for his employer when the latter had forbidden its production. And later Eccles held that an employee was not bound to produce a document in response to an order made under the Foreign Tribunals Evidence Act 1856 U.K. when he had no authority from his employer so to do. The fact that Eccles related to an order made under a statute does not distinguish the case from production under a subpoena. The reasoning of the majority applies with equal force to production pursuant to a subpoena. That certainly has been the view taken by Lord Denning M.R. in Penn-Texas Corporation v. Murat Anstalt [No. 2] [20] .

1. (1808) 9 East 473, at p. 482 [103 E.R. 653, at p. 657]. 2. (1873) L.R. 9 C.P. 23. 3. [1964] 2 Q.B. 647, at pp. 661-664.

It is commonly said that the reason underlying the Eccles principle in that the employee's "possession" is not his, but that of his master (Earl of Falmouth v. Moss [21] ). This reason is sometimes coupled with another - that the employee, in the absence of the employer's consent, lacks authority to bring the documents and produce them to the court (see, e.g., the comments in Eccles of Vaughan Williams L.J. [22] and Buckley L.J. [23] ). The correctness of this view was challenged by Kennedy L.J. (dissenting) in Eccles [24] . Like the majority, he thought that a person could be required to produce only such documents as were in his possession, custody or control. However, he considered that the authority of a number of employees amounted to a large degree of control and discretion to act independently, in which event they were at liberty to act, without express orders from their employer. They could then be regarded as having possession, custody or control of documents which they held for their employer and were bound to produce the documents, unless instructed by the employer not to do so.

1. (1822) 11 Price 455 [147 E.R. 530]. 2. [1912] 1 K.B., at p. 145. 3. [1912] 1 K.B., at pp. 147-148. 4. [1912] 1 K.B., at pp. 151-152.

To my mind the absence of authority from the employer to bring the documents to court and to produce them is not a material circumstance when the court's order requires them to be brought and produced. Kennedy L.J. [25] noted that the employee who has the employer's document in court without his authority to produce it may nevertheless be ordered to produce it and for this purpose he will be considered to have possession, custody or control of it. Kennedy L.J. was discussing the common law rule which is now replaced in New South Wales by s. 12 of the Evidence Act 1898 N.S.W.. The point is that the common law rule and the statute make compellable the production of a document which is physically held by a person in court. It can scarcely be doubted that the court can order the production of a document held by an employee in court, notwithstanding that he has no authority from his employer to do so or that he has been instructed not to do so.

There is, accordingly, every reason for thinking that the court can compel a person to produce documents which he is physically able to produce. But there are factors which need to be taken into account before deciding that the court will insist on production by an employee of his employer's documents.

The obligation to produce documents pursuant to a subpoena duces tecum is a qualification upon, or an intrusion into, the citizen's right to keep his documents to himself (Penn-Texas [No. 2] [26] ). In the absence of some compelling reason it is right that the owner of the documents should decide in the first instance whether any of them are caught by the subpoena and that he should bear the responsibility for not producing such of them as are ultimately held to be covered by the subpoena. To acknowledge that the employee's possession is sufficient in itself to sustain an obligation to produce, without reference to his employer, would be to disregard the employer's rights with respect to his documents. What is more, it would deprive him of the privilege of objecting to produce a document on the ground that it has a tendency to incriminate him. The privilege against self-incrimination is that of the witness who is called to produce. He cannot claim the privilege on the ground that the document tends to incriminate another (Reg. v. Kinglake [27] ; R. v. Adey [28] ; Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation [29] ).

1. [1964] 2 Q.B., at p. 667. 2. (1870) 11 Cox C.C. 499, at p. 501. 3. (1831) 1 M. & R. 94 [174 E.R. 32]. 4. [1978] A.C. 547, at pp. 637-638.

Recognition of these interests of the employer suggests that in general it is he, not his employee, who should be required to produce the documents. Of course, the protection of the employer's interests must give way to the public interest in the efficient administration of justice in case of collision between the two. So, if it is impracticable to serve a subpoena on the employer, e.g., by reason of absence overseas, incapacity or his whereabouts, being unknown, the court will insist on production of the documents by his employee or agent who holds them. In these circumstances the prompt dispatch of court business must prevail over the protection of the employer's interests.

And there are other situations, quite apart from that of the unincorporated association to be discussed later, where the employee has express or implied authority to deal with the employer's documents, viz. the circumstances contemplated by Kennedy L.J., in which it is proper for the court to overrule an objection to produce made on the ground that the employee merely holds the document for his employer. However, these exceptions or qualifications should not obscure the general rule that a party should subpoena the documents of an employer from the employer himself, not from his employee.

The production of documents by a corporation stands in a special position. In the past it seems to have been thought that a problem arose by reason of the corporation's inability to give evidence. This problem can be avoided by serving a subpoena on the corporation itself, requiring it, by its proper officer, to give evidence and produce the documents. As Lord Denning M.R. pointed out in Penn-Texas [No. 2] [30] , this is what was done in R. v. Daye [31] . The view which I have expressed is that stated by Lord Denning M.R. in Penn-Texas [No. 2] and subsequently in Senior v. Holdsworth; Ex parte Independent Television News Ltd. [32] . It is to be preferred to the contrary view of Harman L.J. in Penn-Texas Corporation v. Murat Anstalt [No. 1] [33] .

1. [1964] 2 Q.B., at p. 663. 2. [1908] 2 K.B. 333. 3. [1976] 1 Q.B. 23, at p. 32. 4. [1964] 1 Q.B. 40, at p. 69.

The production of the documents of unincorporated associations is necessarily governed by the principles applicable to individuals, rather than the rule relating to corporations. In applying these principles account has to be taken of the nature of the unincorporated association, and of the objects which it pursues. The variety of unincorporated associations is infinite. Generally speaking, such associations are formed for particular purposes with the result that their activities often reflect, not the purely private or personal elements of its constituent membership, but their common or group interests only. The assets, books and records of such associations are quite distinct from those of their individual members. The business of an unincorporated association is generally conducted by an executive officer, subject to directions given by an executive committee. See the discussion in United States v. White [34] and the annotation in 152 A.L.R. 1208.

1. (1944) 322 U.S. 694, at pp. 701-703 [88 Law. Ed. 1542, at pp. 1547-1548].

The books and records of an association will often be entrusted to an executive officer who attends to the conduct of the association's business or affairs on a daily or continuous basis. Subject to such resolutions as may be passed by the executive committee or by the members of the association in general meeting that person has express or implied authority to deal with the association's books and documents in the course of conducting its business and affairs. He is the person who has possession, custody or control of the books and documents. Consequently, he is the person to be served with a subpoena duces tecum to produce them. It is obvious that possession, custody or control does not rest in the members of the association who may in some cases be counted in hundreds and thousands. It is equally obvious that the executive committee does not have possession, custody and control to the exclusion of the executive officer. And it would be patently absurd to say that the production of the books and records of an association can only be compelled from the members, however numerous they may be. In many cases it would be a labour of Herakles to establish the identity and whereabouts of the members of an association and of the members of its executive committee. The business of the courts would grind to a halt if a party to litigation was expected to serve a subpoena on all the members of an association or even all the members of its executive committee.

In the case of NFFA it is the appellant who has the immediate physical ability to bring their documents to court and produce them. He is the person entrusted with possession, custody or control if its documents and he is therefore bound to produce them in answer to the subopena. In any event the findings of fact, supported by the evidence, establish that he is an officer of ARTF. In the result, even if the Eccles principle were correct, the appellant would stand outside it because it would not be a case in which he was required to produce his employer's document.

The judges of the Federal Court were right in holding that they were not bound to follow Eccles [35] . The correct approach on the part of Australian courts to English authority was expressed by Ellicott J. when he said that English decisions are no more than a guide, albeit a valuable guide, to what the common law is in Australia.

True it is that the production of the documents by the appellant will deny to the members of NFFA the opportunity of claiming the privilege which they might have claimed if they had been called upon to produce. But the privilege, as we have seen, is merely that of the witness; he is relieved from an obligation to incriminate himself out of his own mouth or by his own hand. The privilege does not attach to the documents as such or to their contents, as with some other forms of privilege. In the result the members of the NFFA by so arranging their affairs that the appellant has their documents have brought into existence a situation in which he can be compelled to produce without being able to claim privilege. But there is nothing very strange in this. The appellant can be called to give evidence relating to the affairs of NFFA and no privilege can be claimed in respect of his evidence because it has a tendency to incriminate that Association.

In the United States it has been held that the privilege against self-incrimination is available only to natural persons and not to corporations. Indeed, in White [36] it was deicded that it is not available to unincorporated associations or at least those which are organized as business enterprises or labour unions. However, in England it has been affirmatively decided that the privilege is available to corporations (Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. [37] ; Rio Tinto Zinc Corporation [38] ) and the argument in the present case has proceeded on the footing that it is available to unincorporated associations.

1. (1944) 322 U.S. 694 [88 Law. Ed. 1542]. 2. [1939] 2 K.B. 395. 3. [1978] A.C. 547.

The appellant, Mr. Rochfort, in response to a summons to produce documents issued from the Federal Court of Australia at the instance of the Trade Practices Commission, admitted that he had physical custody of the documents but objected to their production on the ground that he held them only as an employee. He claimed that some documents were owned by an unincorporated association, the Australian Road Transport Federation (ARTF), a vast fluctuating body of corporate and natural persons, and that the others were owned by another unincorporated association, the National Freight Forwarders' Association (NFFA), another large and fluctuating body, which was a member of the ARTF. He claimed that he was an employee either of ARTF, or of its council which itself was a large and somewhat indefinite (amorphous) body, and that he was also an employee of NFFA.

The appellant invoked an old sensible rule that if the person summoned to produce documents satisfies the court that although he has physical custody of the documents he has no right to possession of or power over the documents, but holds them only in the capacity of employee of another and that the summons should be directed to his employer, the court will not order him to produce the documents (see Earl of Falmouth v. Moss [39] - the Steward's Case).

Bowen C.J. at first instance found that Mr. Rochfort was an employee of ARTF and not of NFFA. On that basis he upheld the objection to production of the documents of ARTF and overruled the objection to the production of those owned by NFFA (apart from the document whose production was not pressed). The appeal to the Full Federal Court, which was dismissed, and to this Court concerns only the documents ordered to be produced.

The rules relating to the production of documents to a court on summons or subpoena are practical rules for the administration of justice. Any person summoned to produce documents who has physical custody of them must bring them to court. The person may object to producing the documents (or any of them) on the ground that he has no possession of or power over the documents but that another person (or persons) has possession or power and that the summons should be directed to that person. The court will not order the person summoned to produce the documents if it is satisfied that he has no possession or power and that the person who has possession or power can be summoned to produce them. But even if it is established that some other person has general property in the documents, nevertheless if it appears that the person summoned has some special property, e.g., as banker or accountant, then the objection should be overruled. An employee usually does not, but sometimes may, have a special property in the employer's documents, according to the terms or conduct of his employment (in the same way as an employee may sometimes have special property in the employer's tools or vehicle), which gives him possession of or power over the documents. An objection to production that it would tend to incriminate the person with the general property must be overruled.

But even if it appears that the person summoned has no possession or power, the court must be satisfied that another identified person (natural or artificial) has the possession or power, or the objection fails. Here Mr. Rochfort at most asserts that some amorphous group or large and floating body of persons has possession or power as his employer. The precise persons were not, and apparently could not be, identified. Again, even if some person or persons are identified as having the possession or power, unless the court is satisfied that that person or those persons can as a practical matter be summoned to produce documents then the objection fails, which it would if the person has disappeared, or is not within the jurisdiction, or were an amorphous group, or a very large number of persons, or a company that is "at the bottom of the harbour" - i.e., with non-existent or straw directors and officers, or not operating at the registered office.

If there is doubt whether a summons to produce issued to some person or persons identified as having the possession or power, would be effective, one practical course is to allow an opportunity for service of a summons on that person or persons. If this be done, and the person or persons do not appear and admit possession or power, the court should order production.

Of course, the fact that the person summoned has physical custody, and no other identified person (or persons) is shown to have authority and capacity to produce the documents in answer to a summons, suggests that in reality the person summoned has possession or power.

The judges of the Federal Court rightly held they were not bound to follow the English Court of Appeal decision in Eccles & Co. v. Louisville and Nashville Railroad Co. [40] . As I pointed out in Day & Dent Constructions Pty. Ltd. (In liq.) v. North Australian Properties Pty. Ltd. [41] , the decisions of courts of other common law countries are persuasive only: "Apart from the special respect accorded to individual judges because of their reputation, the intermediate or ultimate courts of England are entitled to no more and no less respect than those of the courts of other countries."

1. [1912] 1 K.B. 135. 2. (1982) 150 C.L.R. 85, at p. 111.

The appellant claimed that he should not be required to produce, because this would deny to ARTF and NFFA the opportunity to resist production by asserting privilege against self-incrimination. A person required to produce documents cannot resist production on the ground that this would tend to incriminate another person. The privilege against self-incrimination is a human right, based on the desire to protect personal freedom and human dignity. The history of, and reasons for, the privilege suggest that it should not be extended to artificial persons such as corporations or to large or amorphous voluntary organizations. (See Hale v. Henkel [42] ; Baltimore & Ohio Railroad Co. v. Interstate Commerce Commission [43] ; United States v. White [44] .) The English decisions (such as Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [45] ) are in my opinion unconvincing and should not be followed here.

1. (1906) 201 U.S. 43 [50 Law. Ed. 652]. 2. (1911) 221 U.S. 612 [55 Law. Ed. 878]. 3. (1944) 322 U.S. 694 [88 Law. Ed. 1542]. 4. [1939] 2 K.B. 395.

The Federal Court was correct in regard to the documents subject of the appeal. It should also have ordered production of the documents said to belong to ARTF but there was no cross-appeal.

I have had the advantage of reading the reasons for judgment prepared by Mason J. I agree with his Honour's conclusion, and generally with the reasons which lead to it. There is very little that I wish to add. The appellant is unable to sustain his challenge to the findings of the learned primary judge, Bowen C.J., that he remained the servant of the Australian Road Transport Federation and that the documents in question were not the property of his employer. The evidence plainly supports those findings. That being so, the appellant derives no assistance from the majority decision of the Court of Appeal in Eccles & Co. v. Louisville and Nashville Railroad Co. [46] , and the subpoena must be obeyed.

In any event, in my opinion it is not necessarily sufficient for an employee who has the physical custody of documents belonging to his employer to decline to produce them in answer to a subpoena addressed to him on the ground that he lacks the authority of his employer to do so. When this matter was before the Federal Court, Smithers J. and Sheppard J. expressed a preference for the dissenting judgment of Kennedy L.J. in Eccles, where his Lordship drew from Crowther v. Appleby [47] the conclusion that the mere relation of master and servant is not of itself a sufficient excuse for refusing to comply with a subpoena. I share the view of their Honours, although, like Mason J., I do not think that the decision of this Court in James v. Cowan; In re Botten [48] can be called in aid of the proposition. The sole ground of decision in Botten was that a refusal to obey a specific order of a competent court was a defiance of the authority of the court and therefore a contempt of court. The ultimate question in every case will be whether, having regard to the nature of the employment and duties of the employee in question, he has that possession, custody or control of the documents which obliges him to produce them. In the present case, the evidence leaves no doubt that even if the appellant were found to be the servant of the National Freight Forwarders Association he exercised that degree of authority over the documents as to leave him with no justification for non-compliance with the subpoena. It is unnecessary to consider the application to unincorporated associations of the principles relating to privilege against self-incrimination.

1. (1873) L.R. 9 C.P. 23. 2. (1929) 42 C.L.R. 305.

[The Honourable Mr. Justice Aickin died before judgment was delivered in this case.]