Abrook v Paterson - [1995] FCA 694

CATCHWORDS

PRACTICE AND PROCEDURE - subpoena - whether party prohibited by terms of statute from compliance - terms of statute

Subpoena - See above

Securities Industry Act 1976 (NSW)

Telephonic Communications (Interception) Act 1960 (Cth)

Telecommunications (Interception) Act 1979 (Cth)

Trade Commission Act 1985 (Cth)

Queensland Office of Financial Supervision Act 1992 (Qld)

Trade Practices Act 1974 (Cth)

Friendly Societies Act 1991 (Qld)

Rochfort v Trade Practices Commission 91982) 153 CLR 134

Lloyd's Ships Holdings Pty Ltd v Davros Pty Ltd (1985) 11 FCR

287

Graylor Pty Ltd v Chapple [1991] 2 QdR 26

Parkes Management Ltd v Perpetual Trustee Co Ltd [1979] 1 NSWLR 274

Miller v Miller (1978) 141 CLR 269

Hilton v Wells (1985) 157 CLR 57

ROBERT & LORNA ABROOK & ORS Applicants

- and -

GREGORY PATERSON & ORS Respondents

O'LOUGHLIN J.

ADELAIDE

24 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIAN DISTRICT REGISTRY ) No: SG30 of 1995

)

GENERAL DIVISION )

B E T W E N:

ROBERT & LORNA ABROOK & ORS

Applicants

- and -

GREGORY PATERSON & ORS

Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER : O'LOUGHLIN J.

WHERE MADE : ADELAIDE

DATE OF ORDER : 24 AUGUST 1995

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant on the motion file and serve its submissions on costs by 31 August 1995 and that the respondents file and serve their submissions by 7 September 1995.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIAN DISTRICT REGISTRY ) No: SG30 of 1995

)

GENERAL DIVISION )

B E T W E N:

ROBERT & LORNA ABROOK & ORS

Applicants

- and -

GREGORY PATERSON & ORS

Respondents

REASONS FOR JUDGMENT

Coram: O'Loughlin J.

Place: Adelaide

Date: 24 August 1995

Stephen James Maitland ("Mr Maitland"), the Chief Executive Officer of the Queensland Office of Financial Supervision ("QOFS") has moved the court on motion for an order that a subpoena issued on 8 August 1995, directed to "The Chief Executive Officer, Queensland Office of Financial Supervision", be set aside. The primary ground advanced in support of the order sought was that both QOFS and its CEO are prohibited by statute, namely, s8.11 of the Friendly Societies Act 1991 (Qld), under penal sanction, from giving the evidence that is sought to be adduced and from producing the documents that are sought to be produced; a further argument that the evidence would be protected from disclosure by public interest immunity was not pursued. It was raised, during the course of submissions, that the subpoena ought to have been directed to the corporate body, QOFS: Rochfort v Trade Practices
Commission (1982) 153 CLR 134. But as no point was taken that the subpoena was defected on this ground I will not pursue the matter.

Section 8.11 of the Friendly Societies Act 1991 is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abrook v Paterson

Details

AGLC: Abrook v Paterson [1995] FCA 694
Case: [1995] FCA 694
Decision Date: 24 Aug 1995

CaseChat Overview and Summary

The Federal Court of Australia, presided over by O'Loughlin J, was tasked with determining the legality of a subpoena issued in the case of Abrook v Paterson. The subpoena, directed to the Chief Executive Officer of the Queensland Office of Financial Supervision (QOFS), sought the production of documents related to the Family Security Friendly Society. The respondents, including the CEO of QOFS, argued that they were prohibited by statute from complying with the subpoena. Specifically, they cited section 8.11 of the Friendly Societies Act 1991 (Qld), which imposes strict confidentiality requirements on officials and carries penal sanctions for non-compliance.

The central legal issue was whether the statutory prohibition on disclosure in section 8.11(1) of the Friendly Societies Act extended to the disclosure of information to a court. The court examined previous cases such as Lloyd's Ship Holdings Pty Ltd v Davros Pty Ltd and Graylor Pty Ltd v Chapple, which held that certain statutory provisions precluded disclosure to a court. However, the court distinguished these cases from Hilton v Wells and Miller v Miller, where the High Court ruled that statutory prohibitions on disclosure did not apply to the giving of evidence in court.

O'Loughlin J held that the statutory provisions in the Friendly Societies Act did not extend to prohibit the disclosure of information to a court. Consequently, the application to set aside the subpoena was dismissed. The court granted leave for the parties to submit written arguments on the issue of costs, with specific deadlines for filing and serving the submissions.

Orders