Tradestock Pty ltd & Ors v T.N.T. (Management) Pty Ltd & Ors [1983] FCA 269

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Between: TRADESTOCK PTY. LIMITED, WILLIAM JAMES FREWEN and NOEL EDWARD STOCK (Plaintiffs) And: T.N.T. (MANAGEMENT) PTY.

ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED

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In the summonses brought respectively by the second, third, fourth and fifth named defendants and heard on 12

September 1983 THE COURT ORDERS THAT until further order:

1. The documents referred to in paras A 2, A 3 and A5

2. Inspection by parties be by their legal advisers

Between: TRADDSTOCK PTY. LIMITED, WILLIAM JAMES FREWEN and NOEL EDWARD STOCK (Plaintiffs) And: T.N.T. (MANAGEMENT) PTY.

Except to the extent to which leave has been given by order of Ist July, 1983 of this Honourable Court, the Senior Assistant Crown Solicitor (acting for the Trade Practices Commission) or any person er entity who is not a party to the proceedings, may not search in the Registry of this Honourable Court for or

inspect or obtain any photocopy of or otherwise have access to the following documents in the said proceeding:

On 16 August 1983 the second, third and fourth named defendants applied upon summons for orders in the same terms as above. These summonses arose out of certain correspondence between the Victorian District Registrar of this Court and the parties to this action and the Assistant Crown Solicitor concerning a request by the Crown Solicitor to the District Registrar that the latter have access to

documents on the Court file relating to this action.

This action commenced as B No. 194 of 1976 in the Australian Industrial Court. It is now VG No. 26 of 1977 in this Court. It is an action brought by the plaintiiffs against the above named defendants. The action arose out of steps taken by the plaintiff company (Tradestock) to act as a consultant and a broker for companies requiring transport services whereby Tradestock would advise as to the most appropriate services for particular projects and negotiate with companies offering such services with a view to arranging for the supply of those services at the cheapest rates obtainable. This was a form of brokerage not previously in operation in relation to companies such as the defendants at all or at least for a very long time.

Tradestock alleged that those companies had engaged in

conduct in contravention of s.45 of the Trade Practices Act

1974 (the Act) in that in contravention of that provision as

amended by the Trade Practices Amendment Act 1977 (No. 81 of 1972) they had agreed amongst themselves that, inter alia, they would not deal with or accept any interstate or other carrying business offered to them through brokers including

Tradestock in its capacity as broker for companies requiring

On 13 April 1977 the farst, second, third, fourth, sixth, seventh and twelfth named defendants sought an order that Tradestock's action be stayed pending the provision by it of security for costs. On 2 May 1977 an order was made that so far as the action related to the first, second, third, fourth, sixth, seventh and twelfth defendants it be stayed until certain security was provided in the sum of $2,000 for each defendant or group of defendants with the same interest. The reasons for the order appear in

Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. & Ors

On 24 October 1977 Tradestock applied for discharge of the order staying its action. In then appearing to me that there were good prospects that the plaintiff's action would succeed, by order dated 27 January 1978, I lifted the

stay. The reasons appear more fully in Tradestock Pty. Ltd.

v. T.N.T. (Management) Ply. Ltd. (No.2) (1978) 17 A.L.R. 257.

However,, when lifting the stay I intimated at p.279 that if

certain undertakings were given to the Court by defendants I

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would reimpose the stay. The undertakings were given, the stay was reimposed and is still in force. The action awaits the outcome of proceedings in G No. 44 of 1978 brought by the

The defendants in those proceedings are the first, second, fifth, seventh, eighth and tenth defendants in action

No. VG 26 of 1977 and against Brambles Holdings Ltd, Associated Steamships Pty. Ltd. and Ipec Holdings Limited.

In those proceedings the claim, made pursuant to s.77 of the

Trade Practices Act 1974 against the defendant T.N.T.

(Management) Pty. Limited, Brambles Holdings Ltd., Mayne Nickless Ltd. Youngs Transport Pty. Ltd., Ansett Transport Industries (Operations) Pty. Ltd., Associated Steamships Pty. Ltd., Ipec Holdings ltd., and Interstate Parcel Express Pty. Ltd. is that in 1976 they entered into an agreement or arrangement with each other that they would not negotiate or deal with Tradestock in respect of the carrying or forwarding of freight or the arranging therefor as proposed by Tradestock or any other broker for or on behalf of persons seeking the services of such defendants and gave effect to such agreement or arrangement contrary to s.45 of the Act. Proceeding G44 of 1978 does not allege conduct which

is criminal: see ss.77 and 78 of the Trade Practices Act

1977 (the Act). The conduct alleged will, if proved against

any defendant, expose that defendant to a penalty of not more

than $250,000 and other relief: see ss.76 and 78 of the Act.

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Proceeding G44 of 1978 is at present in the course of being

heard by his Honour Mr. Justice Franki in Sydney. There 1s

no dispute that the request of the Assistant Crown Solicitor proceeds from the desire of the Commission to ascertain whether the contents of any of the documents to which access is sought would, if available for the purposes of action G44

of 1978, assist the Commission to present its case against

the District Registrar as to the terms upon which inspection

should be granted, if at all, the District Registrar

intimated to al] parties that he proposed to grant access to

documents in his custody to parties and non-parties as

(INCL. TRADE PRACTICES COMMISSION) MAY INSPECT AND PHOTOCOPY THE FOLLOWING:

1. All Transcript wee including that marked confidential being pages 230 - 349A (copy transcript will be supplied by the Court Reporting Service)

and *"Li" Note: * weceveccesvsece Documents admitted were exhibits tendered in restricted

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3. Index on Cover of Court Files
4. Court Register .... (ie Public register)
5. PLEADINGS anda other DOCUMENTS FILED INCLUDING
6. Writ of Summons
7. All entries of appearance and notices of change of Solicitor
8. All notices of discovery
9. All chamber summonses (sometimes referred to as summons)
10. All notices for further and better particulars
11. All judgments and Orders by the Court
12. Application by the 10th and the Illth Defendants filed 24.10.77
13. Amended Statement of Claim ~ 9. All Notices of Intention to Proceed
14. All Notices of Discontinuance ll. All Defences to Statement of Claim or Amended Statement of Claim
15. All Correspondence and like documents on file

PARTIES ALSO SOLICITORS INSTRUCTED BY THE TRADE PRACTICES COMMISSION (BUT NOT OTHER NON

Documents mentioned in the order made by Mr Justice Smithers on 1.7.83 ie.

(a) all documents produced by Plaintiffs on subpoena {b) all affidavits (including exhibits

(c) all documents produced by Plaintiffs during the proceedings

identified to Registrar by the Solicitor for the Plaintiff

Parties only will be shown (and allowed to Photocopy) any and all documents held in the Registry by the Registrar in proceeding No. VG 26 of 1977 except the following

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All documents marked for Identification ... marked MFI etc.

i.e. Materials produced apparently on subpoena having been given marking identifications as follows:

MFI "A" *MPrI "1", and *MFI "2" NOTE: eeee- Gocuments marked for

The District Registrar informed the parties that if any of them objected to the course which he proposed to follow they should file a summons returnable before a single judge of the Court seeking an order to the contrary. The summonses now before me were filed in consequence of the Dastrict

In the instant case various documents were filed by the parties relating to the substantive cases as pleaded in the Statement of Claim but there has been no hearing of that substantive case. However, contested interlocutory proceedings did come before the Court. In those proceedings the prospect of the plaintiff succeeding in its substantive claim was in issue. Oral evidence was given, on behalf of the plaintiff and of some of the defendants directed to that issue, and certain documents were admitted into evidence or marked for identification. Some of those documents were produced by the plaintiff, some were produced by the Gefendants and some, upon subpoena, by strangers to the

proceedings. Various of those documents are stiil in the

custody of the Registrar and are those referred to in Part A item 2 and Part C of the abovementioned annexure "A". It is not clear that any of those documents are now the subject of

It was decided by Franki J. in proceeding No. 44 of 1978 by a judgment dated 2 June 1983 that the current Federal Court rules and in particular 0.46 r.6 of the said rules were applicable to an application made by the Commission for

access to the following documents in VG 26 of 1977:

(c) all documents in the Court's custody produced in answer to any subpoena called

(a) all exhibits received into evidence in the proceedings."

Since then it has been assumed that the current Federal Court rules in relation to inspection of documents are applicable generally. Order 46 r.6 of the current Federal Court rules

"6. (1) Except with the leave of the Court or a Judge a person who is not a party to the

proceeding may not search in the Registry for or inspect -

(a) any judgment, order, transcript of a proceeding, or other document which the Court has ordered remain confidential;

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{c) interrogatories or answer to interrog- atories;

the Registrar in answer to a subpoena for production of documents; or

(h) any other document which the Registrar considers ought to remain confidential to the parties.

Judge a party may not search in the Registry for or inspect any document filed to support an

be kept confidential or that any document or thing be privileged from production."

In relation to 0.46 r.6 Franki J. stated that no leave was required for inspection of the pleadings, transcript, (other than that in respect of which an order for confidentiality has been made), any exhibit (other than that for which an order for confidentiality has been made), any praecipe for a subpoena, the Court register and the index on the cover of the file unless the Registrar considers any such document

agreement in relation to the District Registrar's decision as

to access to documents referred to in Parts B and C of Annexure "A", the only qualification being that the

applicants ask this Court to restrict access to documents in

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In relation to Part A Mr. Robb for the Commission submits that pursuant to 0.46 r.6 it would be appropriate for this Court to reject the objections of the defendants to the inspection by the Commission of certain of the documents referred to in Part A of Annexure A. The documents of which the Commission seeks inspection are those in Part A of the

Registrar's intimation to the parties set out above.

The applicants do not object to the Commission having access to the transcript or the Court register. They do object to the Commission having access to any other documents

referred to in part A of the Registrar's intimation.

It is convenient to have regard to the principles relevant to the situation where a person not party to particular proceedings seeks access to documents filed in the Court by the parties during the course thereof before trial, and to documents which have been admitted into evidence during the hearing, interlocutory or final, or partial

The District Registrar may have taken the view in this case that all documents in his custody not specified in paras (a) to (g) of r.6 of 0.46 are documents to which, by

implication of that rule, any member of the public is

entitled to access for inspection purposes unless a party to

the proceeding can put forward a good reason why such access should not be granted. He may also have taken the view that because the proceedings in progress when the documents were taken into evidence were open to the public the documents taken into evidence were also, in a sense, public. Just as a person in Court hears the oral evidence so he has knowledge of the admission into evidence of the documents which were made exhibits in the course of that evidence. Certainly the Commission argued that these views were correct and should be

Both of these considerations are relevant. There is however, a question whether because of some basic considerations relating to the nature of Court proceedings a different view should be taken. The provision by the State of a court to hear claims by one citizen against another is of course a basic feature of a civilized society. It is to ensure that citizens can do business or undertake relationships with each other with the confidence that those relationships will be governed and enforced by the law. It is a public interest of the highest order that a citizen have confidence in the administration of the law and be free of fear that in the assertion at law of his rights, he will not generally speaking, expose himself to injury at the hands of

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rights of a citizen claiming relief at law who is concerned but the citizen against whom a claim is asserted against him in a Court of law by another. That person does not voluntarily attend the Court and call evidence. He is forced to participate in the proceedings to avoid what he regards as an unjustified claim against him. It is as a result of his defending his position that the plaintiff musters and calls the evidence available to him in support of his case. The G@efendant adduces evidence to support his defence. The evidence may consist of documents belonging to and in the custody of strangers to the litigation. Such documents will be brought to court on subpoena. Initially they will be placed in the custody of the court awaiting their admission into evidence or their rejection. During that time the court has a discretion to permit their inspection by the parties to the litigation. If, when tendered in evidence, they are rejected, they will be held for return to the person who produced them to the Court. If accepted into evidence they remain in the possession of the Court for the purposes of the

It is seen therefore that the documents passing into

evidence do so, partly at least, as a consequence of the

plaintiff's claim. Thus they come into the custody of the Court as a result of the Court being accessible to the

plaintiff and exercising its jurisdiction to consider and

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perhaps enforce the plaintiff's claim. The defendant is there only to defend himself. And it is an important aspect of public policy that a person sued by an adversary on a claim, the validity of which he challenges, be free to defend himself. A fear that to proceed with his defence would involve disclosures to strangers which might be injurious to his interests would be in conflict with that freedom.

Alongside these considerations there is the principle, also supported by public policy, that the proceedings in courts of law be open to the public. Scott v. Scott [1913] Ac 417;

McPherson v. McPherson [1936] AC 177. The policy is to

permit the conduct of judicial proceedings to be seen and heard so that confidence of the public in the impartiality and thoroughness of judicial proceedings may be promoted and maintained. But this aspect of public policy is general and not directed to the issues in any particular case. That it may enable a stranger to those issues to hear evidence which he can use to his advantage on another occasion is but incidential to the public freedom to hear and see, but not the purpose thereof. Accordingly, if the stranger, whose attendance at the Court was achieved by reference to this general aspect of policy, becomes, or perhaps always was, an adversary of one of the parties it is not apparent that he should have privileges to pursue his private advantage not being his interest as a mere member of the public. And of course even the right to be present is sometiomes denied to

members of the public because of the secret or confidential

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nature, to one or both = parties, of the evidence. Accordingly, when a person interested for private purposes seeks to pursue those purposes by seeking access to the documents held by the Court for the purposes of litigation between other persons, it is difficult to see any good reason for permitting him to have such access. I would think that where those purposes include the use of the information gained from such access to pursue a course at law in support of a claim against one or both of the parties the justification for such access is not apparent. It is to be remembered that the principle that proceedings in courts of law be open to the public is always subject to the

requirements of the administration of justice: Scott v.

In this case the entity seeking access is the Commission. It knows the nature of the litigation. Its disclosed and only interest is that it hopes the contents of the documents sought will help it to establish contraventions of the Act by one or more of the parties now being sued by it. Its inspection of the documents would be by its own admission a mere fishing expedition. What the Commission argues, however, is that the documents to which access is sought by it are public documents and not confidential and therefore it is entitled to inspect the documents. The issue is whether any of the documents to which access is sought

should be regarded as confidential pursuant to 0.46

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There is the further aspect of public policy to which consideration must be given. That is that wrongdoers should be punished. It might promote the proper conduct of business dealings and affairs by enhancing the possibility of punishment for contravention of the Act if the Commission were given access to documents such as those now under

In this conflict of policies it is my view that that most requiring implementation in the circumstances before me is that a litigant against whom a citizen has made a claim shall be able to conduct his defence before the Court without fear that the court itself may assist an adversary of his to gather information to be used against him. I do not think that it can be said that there is anything in the nature of a right in a person who has a potential claim against another to use the court, including the court in its capacity as the custodian of documents during and for the purpose of particular litigation, as a source of information to be used by him in some respect adverse to his interests. Still less is there anything in the nature of a right in such a person to seek the active assistance of the court in his search for such information. I take note of the submission that documents not specifically expressly referred to in 0.46 r.6

are prima facie "public", but a discretion is retained by the

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Registrar and the Court to treat those documents as confidential between the parties where circumstances dictate

The freedom of access to the Court, particularly of persons who are sued, to pursue their defence according to the procedures of the court without fear that that process will expose them to the risk that the court will assist persons having interests adverse to them by giving access to information in documents held by the court during the currency and for the purposes of the litigation, must, to my mind, be very precious as an aspect of public policy. The public nature of the hearing for the purposes which it serves does not conflict with this. Nor do I consider that in this case the interest republicae in the due punishment of wrongdoers would justify the disclosure by the Court to the Commission of documents in its possession for the purpose of the exercise of its jurisdiction to adjudicate in a civil

I do not overlook that the purposes of the Commission in seeking access to the documents are to support a civil action rather than criminal process by it against one or more of the defendants in this case. However, that action is to seek the imposition of a penalty in respect of conduct which is forbidden by the Act. And it is the assistance of the

Commission as an entity having responsibilities in that

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respect which is in issue. However, although it was my view, as expressed for the purposes of an interlocutory application by defendants for security for costs, that the plaintiff's prospect of success in their action was good, there is not and might never be any finding that any defendant has

It appears to be the intention of rr.5 and 6 of 0.46 that with respect to documents in the custody of the Registrar other than those referred to in paras (a) to (q) of sub-rule (1) it is the duty of the registrar on being requested to permit a stranger to the litigation to search in his registry for, or to inspect, documents to consider whether it would be appropriate for him to permit such search and inspection. He would be required to consider whether such documents should be treated as confidential to the parties. Such a question could only be decided by reference to the legitimate interests of the parties to the litigation in the maintenance of privacy against the person seeking to search and inspect. In some cases such as where trade secrets are concerned there would be special reasons for confidentiality. In cases of a more general nature, including this case, however the considerations of public policy discussed above would be relevant. The purpose of the stranger's request and the documents sought to be inspected

would be relevant. What might be confidential to the parties

as against a person with interests adverse to the parties or

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one of them might not be confidential against a research student. In the circumstances of this case once the nature and purpose of the "stranger" was made known the appropriate decision would be that the request for the search and inspection of certain documents be refused. There is no dispute that the question now arises before me pursuant to

the intimation of the Registrar to the parties and under 0.46 r.é(1)(a).

Order 46 r.6(1)(a)-(g) appears to concern documents which have not passed into evidence in the course of the proceedings. All other documents appear to be in the

category of documents which are prima facie public but which either the Registrar or the Court may consider to be

As stated above there is no contest between the parties concerning the transcript or the Court register (i.e. the public register). Therefore I would order that the

Having regard to my views as to the prevailing public policy in the circumstances of this case I regard as confidential between the parties, the exhibits, the index of the cover of the court file and all correspondence and like documents on file from the parties and non-parties. The

index contains the names of persons who have made the

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I do not consider that relevant policy should operate to deny access to the Commission of items 5(1) - (11) of Part A of annexure A. Those documents do no more than indicate

Otherwise I agree with the terms of access granted by the District Registrar and would only add that in relation to the documents referred to in Part A2,3 and 5(12) and Part C of the Registrar's intimation that access be restricted to the parties' legal advisers who in relation thereto will bear

in mind the principles espoused in Riddick v. Thames Board

In the order of the Court the document referred to as the Registrar's intimation is identified by the description "Annexure A to the affidavit of James Rodon King sworn the