whether officers of postmaster-general’s department can be compelled to attend and give evidence at proceedings before arbitrator: power of arbitrator to compel attendance of witnesses
Wireless Telegraphy Regulations reg 62: Arbitration Act 1902 (NSW) ss 10, 18
The Secretary, Postmaster-General’s Department, has forwarded the following memorandum for advice:
In accordance with regulation 62(3), the Department has been informed that the two Class ‘A’ Broadcasting Licensees in Sydney have commenced arbitration proceedings, and have agreed on an Arbitrator. The Department has been led to believe that each of the parties concerned is likely to call as witnesses officers of this Department.
(2) The Department would appreciate the favour of your advice as to whether the Arbitrator will have any power to insist on any Departmental Representative being called to give evidence. The possibility of two Departmental Representatives being called by the different parties to give evidence on opposing sides is not one which can be viewed with any satisfaction, and it is desired to know if the department may decline to be represented.
Section 62 of the Wireless Telegraphy Regulations reads as follows:
- Subject to the Postmaster-General being satisfied with the service provided by the licensee, and subject to the licensee complying with the provisions of those Regulations, and subject to the provisions of this Division, a licensee of a Class A Station shall be entitled to receive the following proportion of the available revenue obtained in the State in which his station is located, namely:
- the existing licensee of the high power station in New South Wales or Victoria—seventy per centum of the available revenue;
- the other licensee in New South Wales or Victoria—thirty per centum of the available revenue; and
- a licensee in any of the other States—the whole of the available revenue.
- If the proportions in which the available revenue is payable in New South Wales and Victoria are not acceptable to any licensee entitled thereto, the proportions of the available revenue so payable may be settled by arbitration.
- If the licensees affected fail to agree as to the Arbitrator by whom the proportions are to be determined, the Postmaster-General may appoint the Arbitrator and the proportions determined by the Arbitrator shall be the proportions payable to the licensees respectively.
- The apportionment of the available revenue to any licensee shall be based on the periods for which services provided by the licensee to the satisfaction of the Postmaster-General are available to the public.
- The available revenue shall be payable quarterly on dates to be determined by the Postmaster-General.
The Wireless Telegraphy Regulations do not confer on the Arbitrator any powers to compel the attendance of witnesses, and therefore the Arbitrator has no such powers unless they are conferred by State legislation.
Sections 10 and 18 of the New South Wales Arbitration Act 1902 read as follows:
10 Any party to a submission may sue out a writ of subpoena ad testifacandum, or a writ of subpoena duces tecum; but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action: Provided that every person whose attendance is so required shall be entitled to the like conduct money and payment for expenses as upon a trial in the Court.
- The Court or a Judge may order that a writ of subpoena ad testificandum or subpoena duces tecum shall issue to compel the attendance before a referee, or before any arbitrator or umpire, of a witness wherever he may be within the jurisdiction.
- The Court or a Judge may also order that a writ of habeas corpus ad testificandum shall issue to bring up a prisoner for examination before a referee, or before any arbitrator or umpire.
‘Submission’ is defined in this Act as ‘A written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not’.
If the parties have entered into a written agreement to submit their differences to Arbitration, I think the State Act applies, and the attendance of witnesses can be compelled under the sections quoted above.
Officers of the Department could object to give evidence on grounds of public policy, but their objections might be overruled.
In my opinion, the most satisfactory solution of the difficulty would be to amend the regulations to provide that officers of the Department shall not be compelled to attend or give evidence before the Arbitrator. It might be advisable, at the same time, to make express provision in regard to the application or otherwise of the State law regarding arbitration proceedings.
[Vol. 22, p. 667]