District Council of Coober Pedy v Naumovic

[2024] FedCFamC2G 1377

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

District Council of Coober Pedy v Naumovic [2024] FedCFamC2G 1377

File number(s):

ADG 68 of 2023

Judgment of:

JUDGE LUCEV

Date of judgment:

11 December 2024

Catchwords:

PRACTICE AND PROCEDURE – Application to review decision of a Registrar to set aside a subpoena to produce documents – whether subpoena issued for a legitimate forensic purpose – whether “on the cards” that subpoenaed documents will materially assist – whether application for subpoena an abuse of process – whether other sufficient cause - whether new claims of negligence, defamation and victimisation material - whether issue estoppel based on findings in relation to same documents in earlier bankruptcy notice set aside proceedings –whether production of documents a breach of Harman Undertaking – whether iniquity rule applicable

BANKRUPTCY – Creditors petition – application to review decision of a registrar to set aside a subpoena to produce documents – principles in relation review of Registrar’s decision – whether monies owed – whether other sufficient cause

Legislation:

Bankruptcy Act 1966 (Cth) ss 43, 52, 60

Evidence Act (1995) (Cth) ss 55, 187

Fair Work Act 2009 (Cth) s 546

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256

Independent Commission Against Corruption Act 2012 (SA) s 4, Sch1

Public Interest Disclosure Act 2018 (SA) s 4, 5

Local Government Act 1999 (SA) ss 73, 74, 120, 270, 273

State Records Act 1997 (SA)

Whistleblowers Protection Act 1993 (SA) s 5

Cases cited:

AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464

Alister v R (1983) 154 CLR 404; (1983) 58 ALJR 97; (1983) 50 ALR 41

Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536

Australian Gas Light Company ACN 052167 405 v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956

AWB Limited v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; (2006) 234 ALR 651

Baker v Perpetual Trustee Company Limited [2012] FCA 553; (2012) 204 FCR 593

Barnes v Forty Two International Pty Limited [2010] FCAFC 87

Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166; (2021) 388 ALR 414; (2021) 18 ABC(NS) 1

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464; (1941) ALR (CN) 365; (1939) 35 Tas LR1; (1941) 13 ALJ 131

Cain v Whyte [1933] HCA 6; (1933) 48 CLR 639; (1933) 6 ABC 117; (1933) 6 ALJ 457

Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 798

Carl Zeiss Stiftungv Rayner and Keeler Ltd and Ors (No 2) [1967] 1 AC 853; [1966] 3 WLR 125; [1966] 2 All ER 536

Cassimatis v Australian Securities and Investments Commission [2016] FCA 131; (2016) 334 ALR 350

City of Swan v McGraw-Hill Companies Inc (2014) 226 FCR 462

Commonwealth v Albany Port Authority [2006] WASCA 185

Corney v Brien [1951] HCA 31; (1951) 84 CLR 343; (1951) 15 ABC 154; [1951] ALR 525; (1951) 25 ALJ 133

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434

Cosco Holdings Pty Ltd vCommissioner for Taxation & Anor (1997) 37 ATR 432

Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713; (1935) 8 ABC 58; (1935) 9 ALJ 127; [1936] ALR 40

Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1; (2020) 276 FCR 477

District Council of Coober Pedy v Naumovic [2020] SASC 79

District Council of Coober Pedy ABN 51 908 978 026 v George Naumovic (unreported, Federal Circuit and Family Court of Australia (Division 2), Registrar Parkyn, 14 November 2023)

Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169

Duma v Fairfax Media Publications Pty Ltd [2020] FCA 1792

Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; (1995) 69 ALJR 404; (1995) 128 ALR 391

Forty Two International Pty Limited v Barnes [2010] FCA 397

Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316

Harman v Secretary of State for Home Department [1983] 1 AC 280; [1983] 1 All ER 532; [1983] 2 WLR 338

HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449

International Alpaca Management Pty Ltd v Ensor [1999] FCA 72

Lavan Legal v Kenyon [2017] FCCA 2529; (2017) 326 FLR 20

Markhoul v Barnes (1995) 60 FCR 572

Moss v Eaglestone [2011] NSWCA 404; (2011) 83 NSWLR 476; (2011) 257 FLR 96: (2011) 285 ALR 656; (2011) 9 ABC(NS) 622

Naumovic v District Council of Coober Pedy [2023] FedCFamC2G 125; (2023) 375 FLR 189

Naumovic v District Council of Coober Pedy (unreported, Federal Circuit and Family Court of Australia (Division 2), Registrar Parkyn, 31 August 2022)

NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139

Pattison v Hadjimouratis [2006] FCAFC 153; (2006) 155 FCR 226; (2006) 236 ALR 1; (2006) 4 ABC(NS) 367

Pegasus Leasing Limited v Cadoroll Pty Limited & Ors (1996) 59 FCR 152

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419; (2023) 409 ALR 65

R v Tastan (1994) 75 A Crim R 498

Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132; (2017) 91 ALJR 803; (2017) 345 ALR 534; (2017) 15 ABC(NS) 222

Re Clarecastle Pty Ltd (in liq) [2011] 251 FLR 225

Re James & Anor; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (No. 2) (1994) 51 FCR 14

Re Svir; Ex parte Commissioner of Taxation (1998) 83 FCR 314; (1998) 39 ATR 113; (1998) 154 ALR 710

Russell v Polites Investments Pty Ltd [2012] FCA 11

Sanders v Snell (No 2) (2000) 174 ALR 53

Sims v Jooste & Ors (No. 2) [2016] FCCA 1468

Suzhou Haishun Investment Management Co Ltd v Yue’e Zhao (Ruling No 2) [2018] VSC 144

Totev v Sfar [2006] FCA 470; (2006) 230 ALR 236; (2006) 4 ABC(NS) 325

Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193; (2008) 247 ALR 180; (2008) 5 ABC(NS) 691

Trade Practices Commission v ArnottsLtd (No 2) (1989) 21 FCR 306; (1989) 88 ALR 90; [1990] ATPR 41-010 (1)

University of Southern Queensland v Luck [2017] FCCA 639; (2017) 318 FLR 147

Wren v Mahony [1972] HCA 5; (1972) 126 CLR 212; (1972) 46 ALJR 163; [1972] ALR 307

Division:

Division 2 General Federal Law

Number of paragraphs:

111

Date of last submission/s:

14 October 2024

Date of hearing:

28 May and 14 October 2024

Place:

Adelaide and Perth

Counsel for the Applicant:

Mr J Napier

Solicitor for the Applicant:

Norman Waterhouse Lawyers

Respondent:

In person

ORDERS

ADG 68 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF DISTRICT COUNCIL OF COOBER PEDY V GEORGE NAUMOVIC

BETWEEN:

DISTRICT COUNCIL OF COOBER PEDY

Applicant

AND:

GEORGE NAUMOVIC

Respondent

Perth

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	11 DECEMBER 2024

THE COURT ORDERS THAT:

1.The Respondent’s application in a proceeding accepted for filing on 28 November 2023 be dismissed insofar as it seeks a review of the decision of a Registrar dated 14 November 2023 to set aside a subpoena to produce documents issued on 14 July 2023 to Mr David Kelly (“Subpoena”), and the Registrar’s order setting aside the Subpoena be confirmed.

2.The documents produced to the Court by the Applicant pursuant to order 7 of the Court’s Orders of 30 November 2023 be returned to the solicitors for the Applicant.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION – APPLICATION FOR REVIEW

1. Pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) the respondent in the substantive proceedings, Mr George Naumovic (“Mr Naumovic”), seeks a review of a decision of a Registrar of this Court in District Council of Coober Pedy ABN 51 908 978 026 v George Naumovic (unreported, Federal Circuit and Family Court of Australia (Division 2), Registrar Parkyn, 14 November 2023) (“Registrar’s Subpoena Review Decision”) to set aside a subpoena to produce documents that was issued on 14 July 2023 to Mr David Kelly (“Kelly Subpoena Review Application” and “Kelly Documents Subpoena” and “Mr Kelly” respectively). At the time the Kelly Documents Subpoena was issued, Mr Kelly was the Chief Executive Officer of the applicant in the substantive proceedings, the District Council of Coober Pedy (“Council”). In the substantive proceedings the Council seeks the issuance of a creditors petition (“Creditors Petition Application”) to sequester Mr Naumovic’s estate, based on non-compliance with a bankruptcy notice (“Bankruptcy Notice”) which Mr Naumovic applied to, but failed to have set aside (“Bankruptcy Notice Set Aside Application”): see Naumovic v District Council of Coober Pedy (unreported, Federal Circuit and Family Court of Australia (Division 2), Registrar Parkyn, 31 August 2022) (“Registrar’s BN Set Aside Decision”) and, on review of the Registrar’s BN Set Aside Decision, Naumovic v District Council of Coober Pedy [2023] FedCFamC2G 125; (2023) 375 FLR 189 (“FCFCOA BN Set Aside Judgment”). The Council objects to the Kelly Documents Subpoena and says that the Kelly Subpoena Review Application ought to be dismissed. The Court notes that there was another subpoena issued to Mr Kelly on 14 July 2023 at the request of Mr Naumovic. That subpoena is to give evidence and is not objected to by either Mr Kelly or the Council.

   A LONG HISTORY OF LITIGATION

2. The Creditors Petition Application comes against a background of lengthy litigation between Mr Naumovic and the Council in the South Australian state courts, and for present purposes in particular, the Supreme Court of South Australia (“SCSA”), and in this Court in relation to the Bankruptcy Notice and now the Creditors Petition Application. In order to deal with the Kelly Subpoena Review Application it is necessary to understand that litigation history, which is summarised hereunder.

   History prior to the Bankruptcy Notice Set Aside Application

3. By way of background:

   (a)on 24 January 2019 the Governor of South Australia made the Local Government (Defaulting Council) Proclamation 2019 (“Proclamation”) pursuant to s 273(5) of the Local Government Act 1999 (SA) (“LG Act”) which, first, suspended all elected members of the Council from their respective offices until the Council ceased to be a defaulting council, and, second, appointed a Mr Jackson as Administrator to administer the affairs of the Council;

   (b)prior to the Proclamation, Mr Naumovic was elected as a Councillor, however, due to the Proclamation, Mr Naumovic’s appointment was suspended; and

   (c)upon instructions from Mr Jackson, in or about early February 2019, the Council undertook a back-up of its information technology systems, and there was a glitch via its service provider, resulting in the suspended elected Council members - who still had access to their electronic mailboxes - and other users of the Council’s mail system, having the capacity to view, access and copy the Council’s restricted information, and Mr Naumovic consequently obtained copies of numerous Council documents, including 23 documents which have become known as the “Restricted Documents”, despite not having authority to access them.

4. The list of the Restricted Documents is as follows:

No.	Description of Documents	Date(s)
1.	Email from Dale Mazzachi to Fiona Hogan subject: Formal Complaint about Councillor Freytag (PDF)	22/03/2017 09:57AM
2.	Email from Justin Freytag to Fiona Hogan, subject: Article online from reneweconomy.com.au (PDF)	01/05/2017 10:07AM
3.	Email from Justin Freytag and Attachment to Greg Griffin, CC Fiona Hogand, Andy Evans subject: Coober Pedy Agreement (PDF)	18/05/2017 02:30PM
4.	Email from Andy Evans to Grey Griffin, Justin Freytag, Fiona Hogan, subject: Fwd:Fw:Senate Estimates (PDF)	18/05/2017 07:17PM
5.	Email Trail from Grey Griffin to Justin Freytag, Fiona Hogan, subject: Re: Correspondence G Davies (PDF)	21/06/2017 04:43PM
6.	Email and attachment from Justin Freytag to Fiona Hogan, subject: Response to panel (PDF and Word Doc)	19/10/2017 12:19PM
7.	Email from Chevahn Hoad to Justin Freytag CC Sophie Reynolds Fiona Hogan subject: Re: mailchimp (PDF)	06/11/2017 12:55PM
8.	Email from Grey Griffin to Justin Freytag, CC Fiona Hogan, pathanasiadis subject: Re: Petition (PDF)	15/11/2017 09:41AM
9.	Email and attachment from Justin Freytag to pathanasiadis, Fiona and Greg Griffin, subject: Fw Petition (PDF)	15/11/2017 10:25AM
10.	Email from Justin Freytag to Fiona Hogan, subject: Fw: Defamation Claim (PDF)	12/12/2017 08:45AM
11.	Email and attachment from Fiona Hogan to Paula Algar subject: FW 170197- Confidential (PDF)	29/12/2017 06:32PM
12.	Email from Imorley to Fiona Hogan CC jgrava, Duke Nanayakkara, Rex Mooney subject: Fw Overdue Rates re A1026, A232, A221, A1649, A291 (PDF)	09/04/2018 11:52AM
13.	Email and attachment from Fiona Hogan to Fiona Hogan subject: BM (PDF)	21/04/2018 04:45AM
14.	Email and attachment from Fiona Hogan to Fiona Hogan subject: BM (PDF)	21/04/2018 05:11AM
15.	Email from Fiona Hogan to Fiona Hogan subject: Requests for Information (PDF)	02/02/2018 08:57AM
16.	Email from Colin Pittman to Fiona Hogan, CC Colin Pittman subject: RE complaint (PDF)	27/02/2018 04:32PM
17.	Email from Colin Pittman to various recipients subject: RE confidential complaint (PDF)	28/02/2018 07:50am
18.	Email and Attachment from Brian Carr to Brian Carr and Fiona Hogan subject: RE: Formal Complaint G Naumovic (PDF)	09/04/2019 02:19AM
19.	Email from Fiona Hogan to [email protected] subject: Fwd: CONFIDENTIAL- Independent Assessor Report and Attachments (PDF)	17/05/2018 11:53PM
20.	Email and Attachment from Brian Carr to Brian Carr and Fiona Hogan subject: RE: Confidential Independent Assessor Draft Report (PDF)	18/05/2018 10:16AM
21.	Email and attachment from Brian Carr to Fiona Hogan, subject: Draft Confidential Report/Whistle-blowers Protection Act (PDF)	18/05/2018 10:17Am
22.	Email from Fiona Hogan to Brian Carr subject: RE Draft Confidential Report/ Whistleblowers Protection Act (PDF)	18/05/2018 01:05PM
23.	Email and Attachment from Colin Pittman to Fiona Hogan subject: Independent Assessor Report 17.5.18 Mayor.pdf (PDF)	30/05/2018 04:14PM

1. Despite requests by the Council for Mr Naumovic to return the Restricted Documents, Mr Naumovic refused to do so, and:

   (a)on 15 February 2019 the Council filed proceedings for an injunction against Mr Naumovic in the SCSA seeking the return of the restricted information, including the Restricted Documents (“Injunction Proceedings”);

   (b)on 19 February 2019 interim injunctive orders were made in the Injunction Proceedings by Judge Dart (sitting as a Master) in the SCSA, preventing Mr Naumovic from using the restricted information, including the Restricted Documents;

   (c)on 3 July 2019 the SCSA delivered judgment in the District Council of Coober Pedy v Naumovic (unreported, Judge Dart, 3 July 2019, SCCIV-19-189) (“Injunction Proceedings Judgment”) in which the SCSA indicated that it proposed to make orders requiring the return of the restricted information (including the Restricted Documents) and that it would hear from the parties as to the form of any orders and consequential matters;

   (d)on 5 July 2019 the SCSA (Judge Dart) granted final injunctive relief against Mr Naumovic and ordered that the restricted information, including the Restricted Documents be returned to the Council, but allowing Mr Naumovic to disclose a list of the Restricted Documents (“Injunction”) (the list of the Restricted Documents is attached to the Injunction Proceedings Final Orders as Annexure A, and essentially in the same terms as the list at [4] above) (“Injunction Proceedings Final Orders”);

   (e)on 24 January 2020 the SCSA (Judge Dart) delivered Reasons for Judgment in relation to the Council’s claim for the costs of the Injunction Proceedings and ordered that Mr Naumovic pay the Council’s costs on a party/party basis (“Initial Costs Order”);

   (f)on 25 January 2020 the Council filed its claim for the costs of the Injunction Proceedings in the SCSA for a total amount of $85,691.62 as a result of Mr Naumovic not accepting an offer by the Council to compromise its costs claim;

   (g)on 24 September 2020 Mr Naumovic filed his response to Council’s claim for the costs of the Injunction Proceedings, opposing that claim in its entirety, save for some minor costs;

   (h)on 25 November 2020 the Council filed an application seeking an interim order for half of its costs in the amount of $42,845.81 (“Interim Costs Application”);

   (i)on 25 January 2021 Mr Naumovic filed an interlocutory application seeking orders for the Interim Costs Application to be dismissed;

   (j)on 13 May 2021 orders were made listing the Interim Costs Application for hearing on 25 August 2021;

   (k)on 25 June 2021 Mr Naumovic filed an amended response to the claim for costs sought by the Council, opposing all of the costs claimed by the Council;

   (l)on 23 August 2021 Mr Naumovic sent an email to the Chambers of Judge Bochner requesting an adjournment of the hearing of the Interim Costs Application. Solicitors for the Council sent further correspondence to Judge Bochner’s Chambers opposing the request for an adjournment, but consenting to any request from Mr Naumovic to appear by telephone;

   (m)on 24 and 25 August 2021 Judge Bochner’s clerk communicated with Mr Naumovic by email on three occasions and noted that Mr Naumovic’s request for an adjournment was opposed and that Mr Naumovic was required to attend the hearing before the SCSA on 25 August 2021 and could do so by telephone;

   (n)at the hearing of the Interim Costs Application on 25 August 2021 the SCSA (Judge Bochner, sitting as a Master):

   (i)was satisfied that Mr Naumovic had not provided an adequate explanation for his non-attendance at the hearing, declined to grant Mr Naumovic’s request for an adjournment, and proceeded to conduct the hearing in Mr Naumovic’s absence;

   (ii)noted that Mr Naumovic’s application by email for an adjournment of the hearing was dismissed; and

   (iii)noted that the amount sought in the Interim Costs Application ($42,845.81) was only approximately $10,000 more than the disbursements which had been incurred. For this reason and given that Mr Naumovic had not conceded that the Council was entitled to any costs at all, the SCSA was prepared to, and did, make an interim costs order (“Interim Costs Order”) in favour of the Council for the amount of $42,845.81;

   (o)on 27 October 2021 Mr Naumovic filed an interlocutory application seeking orders to stay the Interim Costs Order (“Interim Costs Order Stay Application”); and

   (p)on 3 November 2021 the SCSA (Judge Bochner) dismissed the Interim Costs Order Stay Application.

2. On 28 October 2019 as a result of Mr Naumovic using the Restricted Documents in drafting a pleading filed in the Magistrates Court of South Australia (“MCSA”) (in Adelaide), in relation to proceedings that Mr Naumovic had issued against another party, the Council filed a summons for contempt in the SCSA against Mr Naumovic (“Contempt Proceedings”).

3. On 13 May 2020 the SCSA (Stanley J) delivered Reasons for Judgment in the Contempt Proceedings: see District Council of Coober Pedy v Naumovic [2020] SASC 79 (“Contempt Proceedings Judgment”) finding that Mr Naumovic was guilty of contempt in relation to two of the ten grounds of contempt claimed.

1. On 25 August 2020 the SCSA made orders in relation to the Contempt Proceedings:

   (a)ordering that the Council should recover from Mr Naumovic 20% of its costs on an indemnity basis, to be agreed or taxed, as it was only partially successful; and

   (b)that Mr Naumovic, who was self-represented apart from the hearing on penalty, was entitled to recover from the Council 80% of any disbursements and out of pocket expenses of the hearing (“Contempt Costs Orders”).

2. During the Injunction Proceedings the Council made multiple successful applications to seal affidavits filed by Mr Naumovic as a result of the scandalous material within various affidavits filed by Mr Naumovic, regarding legal practitioners and law firms (“Sealed Affidavits”). These orders extend to the Restricted Documents.

3. On 13 January 2022 a Bankruptcy Notice was issued based on Mr Naumovic’s failure to pay the Council’s costs pursuant to the Interim Costs Order: see further [13] below.

4. On 5 September 2022 Mr Naumovic filed an interlocutory application in the SCSA seeking, among other things, that the Interim Costs Order be set aside (“Interim Costs Order Set Aside Application”).

5. On 8 November 2022 the Interim Costs Order Set Aside Application was heard and dismissed by the SCSA (Judge Bochner) and ex tempore Reasons for Judgment were delivered (“Interim Costs Order Set Aside Judgment”).

   Bankruptcy Notice and the Bankruptcy Notice Set Aside Application

6. The Bankruptcy Notice was issued by the Official Receiver on 13 January 2022 and served by email upon Mr Naumovic on 3 February 2022 and claimed a total debt owing of $43,831.85 (“Judgment Debt”), comprised of an amount of $42,845.81 arising from the Interim Costs Order, and a further amount of $986.04 by way of interest. On 22 February 2022 Mr Naumovic filed the Bankruptcy Notice Set Aside Application.

7. In relation to the Bankruptcy Notice Set Aside Application in Registrar’s BN Set Aside Decision a Registrar of the Court made orders to the following effect:

   (a)extending the time for Mr Naumovic to comply with the terms of the Bankruptcy Notice; and

   (b)otherwise dismissing the Bankruptcy Notice Set Aside Application.

8. On 16 September 2022 Mr Naumovic made an application to the Court to review the Registrar’s BN Set Aside Decision.

9. On 22 February 2023 in FCFCOA BN Set Aside Judgment the Court (as presently constituted) made orders:

   (a)dismissing the application to review the Registrar’s BN Set Aside Decision, and confirming the Registrar’s orders of 31 August 2022; and

   (b)extending the time for compliance with the terms of the Bankruptcy Notice.

10. In FCFCOA BN Set Aside Judgment Mr Naumovic invited the Court to go behind both the Interim Costs Orders and the Injunction Proceedings Final Orders, and in the course of doing so to issue a subpoena to the Council to produce the Restricted Documents: FCFCOA BN Set Aside Judgment at [133]. The Court did not do so: FCFCOA BN Set Aside Judgment at [131] and [138]. The Court did not consider it should do so for the following reasons:

    (a)the costs order was made by an experienced judge who correctly assessed the liability for costs;

    (b)the Interim Costs Order was preceded by the Initial Costs Order;

    (c)neither the Interim nor the Initial Costs Order were appealed by Mr Naumovic; and

    (d)because the Interim Costs Order Set Aside Application was dismissed by the SCSA in the Interim Costs Order Set Aside Judgment: FCFCOA BN Set Aside Judgment at [131].

11. In the FCFCOA BN Set Aside Judgment at [140] it was found that there was no basis on which the Bankruptcy Notice could be set aside and the application to review Registrar’s BN Set Aside Decision was dismissed and the Registrar’s orders, including the order dismissing the Bankruptcy Notice Set Aside Application, were confirmed.

12. There was no appeal against the FCFCOA BN Set Aside Judgment.

    Creditors Petition Application

13. The Creditors Petition Application was filed by the Council on 31 March 2023, seeking a sequestration order against Mr Naumovic pursuant to s 43 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”).

14. The Creditors Petition Application was accompanied by the usual supporting documents, and most relevantly, an affidavit of Mr Kelly verifying the Creditors Petition Application (“Kelly Creditors Petition Affidavit”) alleging that Mr Naumovic owed the Council $43,831.85, being the Judgment Debt arising from the amount of the Interim Costs Order.

15. On 28 April 2023 Mr Naumovic filed a Notice Stating Grounds of Opposition (“Notice of Opposition”) to the Creditors Petition Application in which Mr Naumovic indicated that he intended to oppose the Creditors Petition Application on the following grounds, and in particular grounds 1, 2, 4 and 5, which are as follows:

    1.        The Respondent does not owe the money claimed by the Applicant.

    2.The Respondent seeks an order, that there be a separate determination of the question of whether the Court should exercise its discretion to go behind the Judgment to investigate the debt upon which the creditor’s petition is based, and to consider whether it is actually owed.

    …

    4.        The Respondent is able to pay his debts and is not insolvent.

    5.The Respondent has two genuine and arguable claims against the Applicant that have not been considered by the Court previously for an equivalent and greater amount of the debt that is claimed.

    Affidavits

16. A number of affidavits have been filed by and on behalf of Mr Naumovic in these proceedings, as follows (all affidavits of Mr Naumovic, unless otherwise specified, and excluding affidavits of service):

    (a)28 April 2023 (“Naumovic April 2023 Affidavit”);

    (b)28 June 2023 (“Naumovic June 2023 Affidavit”);

    (c)28 June 2023, of Alexandra Jane Walsh (“Walsh Affidavit”);

    (d)14 September 2023 (“Naumovic September 2023 Affidavit”); and

    (e)28 December 2023 (“Naumovic December 2023 Affidavit”).

17. The Council has, in addition to the Kelly Creditors Petition Application, also filed a number of affidavits (excluding affidavits of service), as follows:

    (a)14 July 2023, of Vasilios Marinos (“Mr Marinos” and “Marinos July 2023 Affidavit” respectively);

    (b)30 August 2023, of Mr Kelly (“Kelly August 2023 Affidavit”);

    (c)24 November 2023, of Mr Marinos (“Marinos November 2023 Affidavit”); and

    (d)21 Decenber 2023, of Mr Marinos (“Marinos December 2023 Affidavit”).

18. The Court has read and had regard to the affidavits filed, and the transcript of the hearing from 28 May and 14 October 2024.

    Kelly Subpoena Review Applications

19. On 14 July 2023 the Kelly Documents Subpoena was issued.

20. On 14 November 2023 the Registrar’s Subpoena Review Decision issued setting aside the Kelly Documents Subpoena.

21. On 30 November 2023 the Court made orders at a directions hearing, including an order that the documents the subject of the Kelly Documents Subpoena be produced to the Court at the commencement of the hearing of review of the Registrar’s Subpoena Review Decision on 26 February 2024.

22. On 2 February 2024 the Court made orders including the following:

    1.Pursuant to s 52(5) of the Bankruptcy Act 1966 (Cth), the period at the expiration of which the Creditor’s Petition filed on 31 March 2023 will lapse be extended to 30 March 2025.

    2.The hearing of the Application for Review of the decision of Registrar Parkyn made on 14 November 2023 listed for 26 February 2024 be vacated and be re-listed on a date to be advised.

23. The hearing of the review of the Registrar’s Subpoena Review Decision ultimately proceeded on 28 May 2024. At the conclusion of that hearing judgment was reserved to a date to be fixed.

24. On 14 October 2024 the hearing resumed, and at that hearing four documents were marked as Exhibits in the proceedings. Those documents were as follows:

    (a)a five page extract from a claim filed 13 February 2024 in the District Court of South Australia (“DCSA”) seeking an extension of time to file a claim for $1,893,600, seemingly for defamation and victimisation, plus penalties for breach of the Independent Commission Against Corruption Act 2012 (SA) (“ICAC Act”), the Public Interest Disclosure Act 2018 (SA) (“PID Act”) and the LG Act (“Defamation and Victimisation Claim”) marked as Exhibit 1;

    (b)an affidavit of proof of service made by Mr Naumovic on 12 August 2024 attesting to service of the Defamation and Victimisation Claim, and marked as Exhibit 2;

    (c)a copy of a Notice of Acting filed by the lawyers for the Council in the Defamation and Victimisation Claim, being the same lawyers who are acting for the Council in the Creditors Petition Application, and marked as Exhibit 3; and

    (d)a Notice of a Directions Hearing issued on 29 August 2024 for a directions hearing in the DCSA in relation to the Defamation and Victimisation Claim on 8 October 2024, and marked as Exhibit 4.

    SUBMISSIONS

    Mr Naumovic’s submissions

25. Mr Naumovic’s submissions were lengthy, often repetitive, very broad in their scope, and like his affidavits, ventured into irrelevancies, and occasionally scandal. Doing the best it can, and without seeking to diminish the content or tone of the submissions, the Court sets the submissions out as follows:

    (a)this Court has the power pursuant to s 52 of the Bankruptcy Act to investigate any and all matters relevant to the Creditors Petition Application in order to satisfy itself a sequestration order against him is appropriate in all circumstances: Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132; (2017) 91 ALJR 803; (2017) 345 ALR 534; (2017) 15 ABC(NS) 222 (“Ramsay Health Care”);

    (b)he is a whistle-blower which has not been denied by the Council and he should never have been “prosecuted” by the Council which is trying to get him to admit to a debt that in truth and reality he does not owe in order to undermine his position as a whistle-blower;

    (c)this Court should take into consideration what led to the various proceedings in the SCSA which led to the Creditors Petition Application because as a self-represented defendant during those proceedings he was unable to properly put forward his case due to the superior position of the Council;

    (d)the Council is susceptible to undue influence by those in a position of power and authority within the Council who seek to pursue their own agenda, and the Council and those charged with running it had an incentive to “shut me down, discredit me and ruin me” in order to conceal his public interest information disclosures concerning the EDL Power Purchase Agreement (“Power Purchase Agreement”) which contradicted the narrative that the Council had put forward to the South Australian Ombudsman (“Ombudsman”) during its  Independent Commission Against Corruption (“ICAC”) investigation;

    (e)the Council’s administration staff “went after” an elected member (Mr Naumovic) who was trying to expose the maladministration, misconduct and potential corruption of those staff, and those same staff members were responsible for instructing lawyers to cover up that fact;

    (f)whistle-blowers in Australia are encouraged to come forward and yet when they do they are victimised by the government, local government, corporations and their lawyers. The Council was required to abide by the Whistleblowers Protection Act 1993 (SA) (“WBP Act”) and had adopted its own Whistle-blower Protection Policy (“WBP Policy”) to ensure that it properly fulfilled its responsibilities under the WBP Act. The WBP Policy encouraged the Coober Pedy public to make disclosures that revealed public interest information and outlined its commitment to a person who made those disclosures. That commitment included giving an undertaking to provide immunity to a whistle-blower, to not take action against a whistle-blower as a result of receiving an appropriate disclosure of public interest information, and for the identity of a whistle-blower to be kept confidential in all circumstances;

    (g)the Council and those charged with running it at all relevant times knew he was a whistle-blower and acted in direct contravention of the WBP Policy by:

    (i)failing to provide him with procedural fairness;

    (ii)failing to keep his identity confidential and instead publicly exposing him nationally without his consent;

    (iii)failing to provide him with immunity; and

    (iv)failing to protect him from being victimised and being caused any detriment;

    (h)the Council as a local government body should be expected to behave as a model litigant and should not be seen to be abusing its power that comes with its greater experience, resources and authority. The Council should not be “out to get” people, but should be acting in the public interest and in accordance with the law;

    (i)as a resident and a ratepayer the Council’s conduct towards him has displayed a lack of understanding that it is an elected public body, constituted to serve its community, of whom he is a member. Instead the Council has used ratepayers money to relentlessly “prosecute” him in the courts in the full knowledge that he is a whistle-blower;

    (j)there is no evidence before this Court that disputes his claim that he is a whistle-blower and therefore he is lawfully entitled to the protections that are available under the WBP Act;

    (k)the Court should take into consideration that the judgment debt that the Creditors Petition is based on was obtained by default as he was not able to attend the Court on the day because he couldn't travel due to illness. He provided a Doctor’s Certificate to the SCSA on 23 August 2021. It was only at the end of October 2021 that he was even aware that a default judgment had been made in his absence because the Council had refused to consent to an adjournment;

    (l)the Council and those charged with running it acted unlawfully when it “prosecuted” him in the SCSA when it had full knowledge that he had made and was making public interest information disclosure that identified misconduct, maladministration and corruption. The Council and those charged with managing it acted in contravention of the WBP Act when it failed to protect him from being victimised and being caused any detriment;

    (m)the Council was attempting to engage in the unlawful act of deleting vital business records of the former Chief Executive Officer and the Council's former Payroll and Rates Officer at the time he obtained the Restricted Documents and in contravention of the State Records Act 1997 (SA) (“Records Act”). The Ombudsman also raised his concerns in his Final Report that the Council had acted in contravention of the Records Act but was reassured by Acting CEO Colin Pitman that the Council had implemented a Records Management Policy. The Restricted Documents were saved from being deleted by him;

    (n)the Council’s relentless pursuit of him through the courts when it knows he is a whistle-blower, and the vast amount of resources it has used and is using in that pursuit amounts to ongoing maladministration, misconduct and potential corruption;

    (o)the affidavit evidence of Acting CEO Colin John Pitman (“Mr Pitman”) was the basis for the significant litigation that the Council pursued against him in the SCSA;

    (p)Mr Pitman had a direct conflict of interest in dealing with any matters concerning Mr Naumovic because:

    (i)Mr Naumovic’s public interest disclosures involved matters that Mr Pitman participated in covering up during the Ombudsman's ICAC investigation into the Power Purchase Agreement;

    (ii)Mr Pitman’s participation in the process of Mr Naumovic’s formal complaint against CEO Fiona Hogan which was also based on the same matters that the Ombudsman investigated; and

    (iii)a Concerns Notice that was sent to Mr Pitman on the 15 and 22 February 2019: Marinos Affidavit at Annexure VM-14, that was accepted and registered by the Local Government Association Mutual Liability Scheme;

    (q)there was never any Council meeting open to the public that recorded Mr Pitman's conflict of interest, nor was there any Council meeting open to the public where the Council determined that Mr Pitman could act in relation to the matter. Mr Pitman knowingly breached s 120 of the LG Act by tendering to the SCSA his affidavit (“Pitman Affidavit”) knowing that he had a conflict of interest in the matter;

    (r)the Council and the Administrator, Mr Jackson, knew that Mr Naumovic was a whistle-blower and knew that he was making current whistle-blower disclosures. The Council and Mr Jackson knew that the Pitman Affidavit was in breach of s 120 of the LG Act and yet still allowed the Pitman Affidavit to be the basis for initiating the Supreme Court proceedings against him;

    (s)Mr Jackson had a material conflict of interest pursuant to s 73 of the LG Act in dealing with any matters concerning him due to the Concerns Notice that was sent to Mr Jackson (and Mr Pitman) on the 15 and 22 February 2019. Mr Jackson acted in contravention of s 74 of the LG Act and failed to document any approval from the Minister to take part in any meetings concerning Mr Naumovic;

    (t)the Local Government Association Mutual Liability Scheme has been a silent party who has had undue influence over the SCSA proceedings without bringing this to the attention of the SCSA, a fact that was known to the Council and its lawyers;

    (u)regarding the Negligence and Victimisation Claim referred to at [14]-[24] of the Marinos July 2023 Affidavit (described therein as the “First Set-Off Claim”), the claim against Mr Jackson that the Marinos July 2023 Affidavit is attempting to use in these proceedings (a claim in the MCSA by Mr Naumovic against Mr Jackson (“MCSA Jackson Claim”)), is not relevant to these proceedings and the Council is contradicting arguments it put forward in the Bankruptcy Notice Set Aside proceedings in relation to that claim because:

    (i)the Council has previously argued to have the draft MCSA Jackson Claim struck out by the MCSA. The amended MCSA Jackson Claim was referred to in the FCFCOA BN Set Aside Judgment at [11(c)] but was not considered by the Court as it was struck out of an affidavit Mr Naumovic sought to rely on in those proceedings;

    (ii)at [22(a)(ii)] in the FCFCOA BN Set Aside Judgment the Council submitted that “…[t]he Administrator is an entirely separate legal entity. Any claim Mr Naumovic has against the Administrator cannot be used by him to set-off the Judgment Debt”;

    (iii)at [28(e)(ii)] in the FCFCOA BN Set Aside Judgment the Court observed that during oral submissions the Council submitted that "for the purposes of the litigation there are three separate entities: Mr Jackson personally, Mr Jackson as the Administrator of the Council, and the suspended Council which continues to exist: s 273(5) of the LG Act";

    (iv)upon consideration of the evidence in FCFCOA BN Set Aside Judgment at [103] the Court found that:

    It follows that the Administrator, and hence Mr Jackson, is not the Council, and the Council maintains a separate legal identity to that of an Administrator when an Administrator is appointed.

    (v)the Council did not appeal FCFCOA BN Set Aside Judgment;

    (v)in reference to the hearing before the MCSA and the reasons which are annexure “VM-12” to the Marinos July 2023 Affidavit, Mr Jackson was at all times represented personally by Mr Marinos and Mr Napier of Norman Waterhouse Lawyers who represent the Council in this matter. The MCSA did not consider the joinder application that is referred to at [18] of the Marinos Affidavit, and the Council has not been joined to those proceedings;

    (w)in relation to [22] of the Marinos July 2023 Affidavit, Annexure “VM-13” is a letter written by Mr Marinos where Mr Naumovic is expressly threatened not to breach confidentiality provisions at paragraph 3. At paragraph 9 of that letter Mr Marinos egregiously misquotes Judge Dart’s reasons and makes a false implication that the whistle-blower claims were considered by Judge Dart when they were not;

    (x)regarding the Defamation and Victimisation Claim referred to at [25]-[28] of the Marinos July 2023 Affidavit (described therein as the “Second Set-Off Claim”), a denial of liability by the Council does not mean that the claim cannot succeed. As identified at [103] and [104] of the FCFCOA BN Set Aside Judgment, Mr Jackson as the Administrator is a separate legal entity from the Council and any liability incurred by an Administrator is to be paid out of the funds of the defaulting Council pursuant to s 273(11) of the LG Act. Mr Naumovic sued Mr Jackson in a personal capacity for the defamatory letter that he caused to be published in the Coober Pedy Regional Times, and won. Mr Kelly and Mr Jackson acting on behalf of the Council then maliciously caused to be published the exact same defamatory letter in the Council's agenda and minutes for which the Council is liable;

    (y)the Council has provided no evidence in the Marinos July 2023 Affidavit to contradict any of Mr Naumovic’s affidavits and the Marinos July 2023 Affidavit has not addressed or provided any evidence to this Court that disputes that Mr Naumovic is a whistle-blower;

    (z)the Creditors Petition Application seeks to rely on the Kelly Creditors Petition Affidavit to verify paragraphs 1, 2 and 3. Mr Naumovic has provided evidence that disputes paragraph 2 of the Kelly Affidavit where it states that the Council holds security over his properties in the amount of $1600 for unpaid rates, fines and interest;

    (aa)Mr Kelly was in a position to independently review what had been done to Mr Naumovic after Mr Naumovic requested a review under s 270 of the LG Act of all decisions made by Mr Jackson to “prosecute” him in the Supreme Court, and Mr Kelly said “he wouldn't be going after his boss” and then he “shut down” the review even though he knew that Mr Naumovic was a whistle-blower and knew that it was in contravention of his statutory duties as a public officer;

    (bb)Mr Kelly should be compelled to attend Court to speak to the Kelly Creditors Petition Affidavit especially since the Marinos July 2023 Affidavit fails to provide any evidence to verify paragraph 2 of the Creditors Petition. The Westpac Bank is the only secured Creditor over Mr Naumovic’s properties and he is not, nor has he been, in default of that mortgage and has provided current rates notices, loan details and payments in support of this;

    (cc)sections 55 and 187 of the Evidence Act 1995 (Cth) (“Evidence Act”) apply in relation to, respectively, the relevance of Mr Naumovic’s evidence and the inability of the Council to object to the production of the Restricted Documents on the basis that it might it incriminate itself or expose itself to a penalty;

    (dd)the Council has not disputed nor has it provided any evidence that Mr Naumovic is a whistle-blower, and if the Court is satisfied that he did make, was making, is making or had made public interest information disclosures that attracted the protection of the WBP Act then it would be reasonable for the Court to consider that the bankruptcy action taken against him was in itself an act of victimisation;

    (ee)he is a whistle-blower and has asked for whistle-blower protection which he asserts was a fact proven in the formal complaint that Brian Carr (an independent investigator) investigated and was recognised in the Contempt Proceedings Judgment in which he identified the whistle-blower elements. Judge Dart never saw the contents of the Restricted Documents which Mr Naumovic submits was a deliberate tactic to ensure that the iniquity rule could not be argued, and that the iniquity rule applied such as to overcome any confidentiality attached to the Restricted Documents;

    (ff)he has the concession by the State of South Australia against Mr Jackson where whistle-blower elements were included in the pleadings and the State of South Australia conceded to those pleaded facts in their entirety. The Council in direct contravention of its WBP Policy have pursued him through the courts even though the Council and those charged with running it knew that he was a whistle-blower; and

    (gg)the Council is pursuing him for making substantial maladministration disclosures.

    Council’s submissions

1. The Council opposes compliance with the Kelly Documents Subpoena on a number of bases, set out below.

   Abuse of process

2. The Council submits that its case opposing the issuance of the Kelly Documents Subpoena has already been decided by this Court, and it was not apparent to this Court what legitimate forensic purpose the Restricted Documents would serve: FCFCOA BN Set Aside Judgment at [6] and [138], and that where the issue has been fully argued before this Court (as presently constituted), and determined adversely to Mr Naumovic, doing so in these proceedings constitutes an abuse of the process of the Court, and that it is not open to Mr Naumovic to seek factual findings or legal conclusions in these proceedings which are inconsistent with this Court’s judgment in the FCFCOA BN Set Aside Judgment.

   Issue estoppel

3. In relation to issue estoppel the Council argues that:

   (a)the circumstances give rise to an issue estoppel on the question dealt with in the FCFCOA BN Set Aside Judgment. Issue estoppel is invoked where “a judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared”: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464; (1941) ALR (CN) 365; (1939) 35 Tas LR1; (1941) 13 ALJ 131 (“Blair”), CLR at 531-532 per Dixon J. The Council submits issue estoppel arises in the context of the Kelly Documents Subpoena;

   (b)in Markhoul v Barnes (1995) 60 FCR 572 (“Markhoul”) the Full Court of the Federal Court indicated that the correct approach in relation to issue estoppel is to consider whether the earlier decision ought to be regarded as a final determination of the issue, rather than focussing on the nature of the proceedings: Markhoul at 583 per Hill, Cooper and Branson JJ;

   (c)in this instance an issue estoppel arises and applies for the following reasons:

   (i)Mr Naumovic seeks to raise again the very same question that was decided against him in the FCFCOA BN Set Aside Judgment, namely the issuing of a subpoena for production regarding the Restricted Documents; and

   (ii)the parties are the same. The Restricted Documents are the Council’s documents and Council is the only entity that holds the Restricted Documents;

   (d)in the circumstances it is reasonable to regard the FCFCOA BN Set Aside Judgment concerning the subpoena for production of the Restricted Documents as a final determination of that issue, being an issue which Mr Naumovic wishes to raise again and relitigate in these proceedings. Mr Naumovic should be estopped;

   (e)in the FCFCOA BN Set Aside Judgment, Mr Naumovic sought a subpoena to be issued against the Council to produce the Restricted Documents the subject of the Injunction Orders: FCFCOA BN Set Aside Judgment at [6], [12(l)] and [133]. The Council opposed the subpoena in those proceedings: FCFCOA BN Set Aside Judgment at [7] and [27(f)];

   (f)in FCFCOA BN Set Aside Judgment at [138] the Court held:

   In relation to the Restricted Documents what Mr Naumovic seeks to do is have this Court go behind the Injunction Proceedings Final Orders, rather than the … [Interim] Costs Orders. What, in effect, is seemingly asked of this Court is for it to reconsider the outcome of the Injunction Proceedings, seemingly so that Mr Naumovic could somehow then gain access to the Restricted Documents for the purpose of challenging the … [Interim] Costs Orders. Mr Naumovic made vague assertions that these proceedings had a “whistle-blower element” to them and that this warranted this Court going behind the Injunction Proceedings Final Orders, but nothing of any substance to support those submissions was put before the Court, and certainly nothing to justify going behind the Injunction Proceedings Final Orders on the basis that they were wrongly decided, and therefore ought not to have resulted in the Initial Costs Orders and … [Interim] Costs [O]rders being made. It is pertinent to observe that the Injunction Proceedings Final Orders were not appealed. On the basis of the materials before this Court, there is no or no sufficient evidence warranting the Court to go behind the Injunction Proceedings Final Orders (assuming, but without deciding, that for the purposes of the Restricted Documents argument that the Court has jurisdiction to do so in the manner seemingly contemplated by Mr Naumovic).

   (g)for the same reasons, Mr Naumovic should not be permitted to re-agitate the same issue, and the Kelly Documents Subpoena should be set aside.

   Harman undertaking

4. The Council submitted that the Restricted Documents were covered by what is known as Harman Undertaking, that is, that documents produced in litigation, to another party under a compulsion, by reason of a rule of court or court order, are protected from misuse. The name derives from the judgment of the House of Lords in Harman v Secretary of State for Home Department [1983] 1 AC 280; [1983] 1 All ER 532; [1983] 2 WLR 338 (“Harman”), and it is submitted that the protection is said to arise from the implied undertaking not to misuse documents, and that it is a misuse to use documents for an ulterior or collateral or alien purpose. The use of documents in litigation other than the litigation in which the documents were produced may be a misuse.

5. The Council submitted that the Restricted Documents were provided to the SCSA by way of affidavit from a Council officer, Mr Pitman, in the Injunction Proceedings before Judge Dart in the SCSA and were therefore covered by the Harman Undertaking.

   Legitimate forensic purpose

6. The Council argues that in addition to the matters set out above, and in any event, the Kelly Documents Subpoena should be set aside as it serves no legitimate forensic purpose and the Restricted Documents will not materially assist Mr Naumovic’s case. In that regard the Council submits that:

   (a)the principles that govern production under a subpoena are well-established. They were re-stated authoritatively in the New South Wales Court of Appeal in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 (“Chidgey”) at [58]-[60] per Beazley JA. Chidgey has been referred to, with approval in Duma v Fairfax Media Publications Pty Ltd [2020] FCA 1792 (“Duma”) at [4] per Bromwich J. Relevantly, the issuing party needs to:

   (i)identify a legitimate forensic purpose for which access is sought; and

   (ii)establish that it is on the cards that the documents will materially assist their case;

   (b)the “on the cards” test arises from Alister v R (1983) 154 CLR 404; (1983) 58 ALJR 97; (1983) 50 ALR 41 (“Alister”), CLR at 414 per Gibbs CJ, and it is widely accepted to apply to all subpoenas: Duma at [4] per Bromwich J;

   (c)in the application of this two-step test, the first step is that the person seeking production must identify, with precision, the legitimate forensic purpose for which the documents are sought. If no such legitimate forensic purpose is identified, the party is merely fishing, that is, using the process to see whether he has a case at all. If such a purpose is identified, then the question arises whether it is on the cards that these documents will materially assist;

   (d)Mr Naumovic’s knowledge of the existence of the documents does not demonstrate a legitimate forensic purpose. Still less, Mr Naumovic has no actual knowledge of the contents of the documents. From that standpoint, it is difficult to see how Mr Naumovic could possibly demonstrate that he is not fishing;

   (e)there is no material before the Court, which suggests that there is anything in the documents that would assist Mr Naumovic in his pursuit of opposing the Creditor’s Petition Application. The documents are simply not relevant. Again, the Kelly Documents Subpoena amounts to impermissible fishing as it is not “on the cards” that the subpoenaed material will assist in making out the grounds of opposition to the Creditors Petition;

   (f)in relation to this issue, Mr Naumovic seeks to use the Restricted Documents the subject of the Kelly Documents Subpoena to ask this Court to look behind the Injunction Proceedings Final Orders. This Court, in considering Mr Naumovic’s Notice of Opposition, is only concerned with the orders that underpin the judgment regarding the foundation for the debt (the Interim Costs Order) not the matters that underpin the Injunction Proceedings Final Orders;

   (g)even if Mr Naumovic could point to something in the Restricted Documents the subject of the Kelly Documents Subpoena of which he was aware that could conceivably (let alone “materially”) assist him in the defence of this proceeding (which the Council denies), he is prohibited from doing so by reason of the Injunction Orders the subject of the Kelly Documents Subpoena. Specifically, the SCSA ordered that Mr Naumovic be restrained from using the information in the Restricted Documents “in any way”;

   (h)the Injunction Proceedings Final Orders were not appealed and remain in force. As such, Mr Naumovic cannot advance any submission to this Court regarding his knowledge of the Restricted Documents (even if he possessed such knowledge) since that would be in breach of the injunction, and thus a prima facie contempt of the SCSA; and

   (i)for these reasons, the Kelly Documents Subpoena will not assist the Court.

7. In relation to whether Mr Naumovic can demonstrate a legitimate forensic purpose, and the Council says he cannot, the Council also submitted that:

   (a)a legitimate forensic purpose for which the documents are sought must be identified expressly and precisely: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) (“Cargill Australia”) [2018] VSC 798 at [26]-[28] per Elliott J;

   (b)a subpoena cast broadly in the hope that some of the documents returned may be relevant is not a legitimate forensic purpose and ought not be permitted: Suzhou Haishun Investment Management Co Ltd v Yue’e Zhao (Ruling No 2) [2018] VSC 144 at [103] per Ierodiaconou AsJ;

   (c)Mr Naumovic’s purposes are not precisely identified, and in any event, Mr Naumovic’s purposes are cast broadly so that it is unclear as to what order he is asking this Court to make if this Court had regard to the Restricted Documents. Council anticipates that Mr Naumovic will ask this Court to make a finding that he is a whistle-blower based on what may be in the Restricted Documents: Naumovic April 2023 Affidavit at [5], [9] and [11]. However, that proposed finding and each of Mr Naumovic’s purposes are not relevant to the Court’s consideration in determining the Creditor’s Petition Application;

   (d)put another way, Mr Naumovic seeks to use this Court’s process to obtain the Restricted Documents, and asks this Court to consider the matters that underpin the Injunction Proceedings Final Orders made by the SCSA;

   (e)Mr Naumovic’s purpose is not a legitimate forensic purpose because the Injunction Proceedings Final Orders are no longer relevant for determining whether a Creditor’s Petition is liable to be set aside. The Injunction Proceedings Final Orders have not been appealed, varied or otherwise set aside. The Injunction Proceedings Final Orders are permanent and they, and the Injunction, have been in force for four and a half years;

   (f)this Court is concerned with the judgment regarding the foundation for the debt, and as identified in Wren v Mahony [1972] HCA 5; (1972) 126 CLR 212; (1972) 46 ALJR 163; [1972] ALR 307 (“Wren”), CLR at 224-225 per Barwick CJ there is only one discretion to be exercised and that is “a discretion to accept the judgment as satisfactory proof of [the petitioning creditor’s] debt”. The focus is on the petitioning creditor’s “debt” and not the orders ancillary to that “debt”;

   (g)this Court may conclude that it has the discretion to go behind a judgment, but only the judgment that relates to the petitioning creditor’s debt. That is further seen in Ramsay Health Care at [54] per Kiefel CJ, Keane and Nettle JJ where the majority plurality in the High Court stated “a Bankruptcy Court is concerned with whether the debt on which it is based is truly a basis for the making of a sequestration order”;

   (h)the Judgment Debt reflects Mr Naumovic’s true indebtedness to Council for the legal costs the Council incurred for successfully obtaining the Injunction Proceedings Final Orders;

   (i)the scrutiny that Mr Naumovic invites this Court to engage in is to investigate the circumstances of whether he is a whistle-blower, a matter that was not determined in the Injunction Proceedings Final Orders proceedings, and if, after making that finding, order that the Judgment Debt does not reflect Mr Naumovic’s true indebtedness to the Council as the petitioning creditor. That is, as this Court has previously decided, “seemingly [asking this Court] to reconsider the outcome of the [Injunction Proceedings Final Orders], seemingly so that [Mr Naumovic] could somehow then gain access to the Restricted Documents for the purpose of challenging the … [Interim] Costs Order”: FCFCOA BN Set Aside Judgment at [138] per Judge Lucev;

   (j)there is no material before this Court to establish that the Judgment Debt is in genuine dispute, and it has not been established that the Restricted Documents (that pre-date any proceedings) will assist with any conceptual concern that the Judgment Debt is in genuine dispute. Mr Naumovic is liable to Council for the Judgment Debt; and

   (k)Mr Naumovic’s purposes also include him using the Restricted Documents to commence other claims against the Council in negligence and victimisation. Those purposes are an abuse of process, and in effect, Mr Naumovic is attempting to use the Kelly Documents Subpoena to obtain discovery (if those documents were discoverable in the proceedings). Whilst the implied undertaking does apply on the production and inspection of documents made available under the cover of a subpoena, parties are under an obligation not to use the documents for any purpose not connected with the litigation without an order of the court authorising such use: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76. Accordingly, the purposes that Mr Naumovic has identified to substantiate his purported claims are not legitimate purposes and Mr Naumovic is engaging in an abuse of process.

   Evidence Act

8. In relation to issues under the Evidence Act raised by Mr Naumovic the Council submitted that:

   (a)Mr Naumovic’s submissions make reference to s 55 of the Evidence Act. This provision does apply in these proceedings to the extent that the fact in issue in the proceedings is whether Mr Naumovic owes the Judgment Debt and not, the stale issue that has never been determined namely, whether the Mr Naumovic is a whistle-blower. Accordingly, s 55 of the Evidence Act does operate and for the reasons outlined above the Restricted Documents are not relevant; and

   (b)the submissions concerning s 187 of the Evidence Act are speculative, and s 187 of the Evidence Act has no application. To be clear, there is no risk of exposure to penalty for the Council under the WBP Act or the PID Act. The Restricted Documents are simply not relevant, and Mr Naumovic is unable to identify a legitimate forensic purpose for their use in these proceedings.

   Iniquity rule

9. In relation to the iniquity rule the Council submitted that insufficient had been put to establish that the communications to which the confidence attached, that is the Restricted Documents, were  made for the purposes of furthering or assisting a crime or a fraud or a deliberate abuse, or misuse, of legal powers. The communications, themselves, must be able to establish that they were made in furtherance of criminal or improper purpose.

   Legal professional privilege

10. The Council also made a claim for legal professional privilege in respect of four of the Restricted Documents, but for reasons which will become apparent, it is not necessary for the Court to deal with that claim.

    CONSIDERATION

    Review of a Registrar’s decision – principles

11. A hearing under s 256(1) of the FCFCA Act is a hearing de novo and the relevant matter is considered afresh: Pattison v Hadjimouratis [2006] FCAFC 153; (2006) 155 FCR 226; (2006) 236 ALR 1; (2006) 4 ABC(NS) 367 (“Pattison”)at [6]-[20] per Nicholson J and [43] per Jacobson J; Cassimatis v Australian Securities and Investments Commission [2016] FCA 131; (2016) 334 ALR 350 at [12] per Edelman J (“Cassimatis”); Lavan Legal v Kenyon [2017] FCCA 2529; (2017) 326 FLR 20 (“Lavan Legal”) at [57] per Judge Lucev; University of Southern Queensland v Luck [2017] FCCA 639; (2017) 318 FLR 147 at [94] per Judge A Kelly.

12. In discussing the nature of a review of an order made by a Registrar, the Full Court of the Federal Court in Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166; (2021) 388 ALR 414; (2021) 18 ABC(NS) 1 (“Bechara”) at [17] per Allsop CJ, Markovic and Colvin JJ observed that:

    To underpin the validity of the delegation of judicial power of the Commonwealth to a non-judicial court officer there must be a rehearing de novo before a judge of the Court (whether Circuit Court or Federal Court). The review does not hinge, or focus, upon error in the decision of the registrar. It is a hearing de novo, in which the matter is considered afresh on the evidence and on the law at the time of the review, that is at the time of the hearing de novo. The importance of the de novo rehearing is Constitutional, being the supervisory condition that enables judicial power to be delegated to a registrar. All the jurisprudence stems from this requirement marked out by the High Court in the landmark decision in 1991 of Harris v Caladine [1991] HCA 9; 172 CLR 84, which is discussed in many of the cases referred to below.

13. A fresh hearing does not require the exclusion of the relevant record of the proceedings including the conclusion reached by the Registrar. In Cassimatis at [16] per Edelman J the Federal Court observed that in Sanders v Snell (No 2) (2000) 174 ALR 53 at 56 per Kirby J it was suggested that by not using the label “de novo” (that description is not used in s 256(1) of the FCFCA Act) there is an inference that the review may take into account, and place weight upon, the discretion of the Registrar particularly where the discretion is exercised with some frequency and skill. It is pertinent to observe that in this case an experienced Registrar of this Court delivered thoroughly well considered reasons for setting aside the Kelly Documents Subpoena: see Registrar’s BN Set Aside Decision.

    Summary of Mr Naumovic’s position

14. In summary, Mr Naumovic appears to be submitting that the production of the Restricted Documents is necessary on one or all of the following bases:

    (a)that the Court ought to take into consideration what happened before, and what led to, the Injunction Proceedings;

    (b)the Restricted Documents are related to him being a whistle-blower;

    (c)the Restricted Documents establish that he is entitled to whistle-blower protection, and the fact that he asserts he is a whistle-blower is a matter that the Court ought to take into account;

    (d)that he requires the Restricted Documents to assist him with a draft statement of claim;

    (e)the Restricted Documents will establish that the litigation – presumably the proceedings in the SCSA – were intended to hide or bury the Restricted Documents;

    (f)that the Restricted Documents will establish that the bankruptcy proceedings against him are a substantial mismanagement of public resources; and

    (g)that the Restricted Documents will assist Mr Naumovic to establish that he has two genuine and arguable claims against the Council that will be grounds to not issue a Creditor’s Petition, and that those two claims concern the Restricted Documents, and the Council’s failure to institute policies, procedures and a culture at the Council that prevented the abuse of whistle-blowers.

    Injunction Proceedings Judgment

1. Before proceeding it is convenient to set out some relevant passages from the judgment of the SCSA in the Injunction Proceedings Judgment. Relevantly, the SCSA said as follows in the Injunction Proceedings Judgment at [5]-[7], [10]-[11], [15]-[16] and [21] per Judge Dart:

   5.… at the time the documents were accessed the defendant [Mr Naumovic] was suspended as a member of Council. It would follow that he had no entitlement to access the documents.

   …

   6.As the defendant was suspended, he had no function to discharge and access under section 61 of the LGA [the LG Act] would not be permitted.

   7.        … at the relevant time, the defendant had no entitlement to access information.

   …

   10.… the documents are identified in a list. The documents were not available to the public and did not contain common knowledge. They were located on the plaintiff’s [Council] email server in a place that could only be accessed by a person with an appropriate password and user name. The information is properly to be understood as confidential.

   11.… the documents were received [by Mr Naumovic] in circumstances which imposed an obligation of confidence. The defendant primarily wishes to use the information, without the consent of the plaintiff, in private defamation actions in the Magistrates Court. In the circumstances, that would be a misuse of the information.

   …

   15.In respect of a claim for confidentiality of documents, the defence of public interest at general law has been rejected in Australia. A claim for confidentiality is subject to the iniquity rule. No submissions were advanced on that topic.

   16.The defendant says that the provisions of the Whistleblowers Protection Act 1993 (the WPA) are of application. The primary purpose of the WPA is to provide protection against victimisation arising from the disclosure of information. The Act des not create or expand the circumstances in which documents may be obtained or retained by a party. The WPA has no application on the facts of this matter.

   …

   21.The reality is that the defendant wishes to use the documents in private litigation in the Magistrates Court. He is not entitled to do so. The circumstances in which the documents were obtained impose an obligation of confidence, which equity will protect. No public interest issues arise in private defamation actions.

2. It is noteworthy that the reasons for the SCSA granting the Council the Injunction are essentially the same as those upon which Mr Naumovic now seemingly relies to justify the production of the Restricted Documents.

   Setting aside a subpoena

3. The principles to be applied in determining whether a subpoena to produce documents should be set aside are not seriously in dispute. When determining whether a subpoena or part of a subpoena should be set aside on the ground that it has not been issued for a legitimate forensic purpose, or on the ground that it calls for documents beyond what is necessary to fulfil the legitimate forensic purpose, the Court must:

   (a)identify the issue or issues with respect to which the issuing party claims his case will be materially assisted by the production of the documents called for by the subpoena; and

   (b)determine whether it is “on the cards” that the documents will materially assist the issuing party's case on that issue,

   as to which see Duma at [4] per Bromwich J; Alister, CLR at 414 per Gibbs CJ.

4. The party calling on a subpoena to produce documents must identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and the Court must refuse access unless such an identification is made: R v Tastan (1994) 75 A Crim R 498 at 504 per Barr AJ; NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [22] per Brownie AJA (Spigelman CJ and Ipp AJA agreeing); Cargill Australia at [26]-[28] per Elliott J.

5. The test for determining whether the documents called for by the subpoena are documents, and only documents, that are reasonably necessary to fulfil the asserted legitimate forensic purpose, has been variously stated. The documents called for by a subpoena may be held to fulfil the asserted legitimate forensic purpose if the documents:

   (a)“… have an apparent relevance … to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established?”: Trade Practices Commission v ArnottsLtd (No 2) (1989) 21 FCR 306; (1989) 88 ALR 90; [1990] ATPR 41-010 (1); ALR at 103 per Beaumont J;

   (b)have “at least some apparent potential relevance to the matters in issue in the litigation”: Australian Gas Light Company ACN 052167 405 v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956 at [8] per French J; Commonwealth v Albany Port Authority [2006] WASCA 185 at [18] per Steytler P; or

   (c)“could reasonably be expected to throw light on some of the issues in the principal proceedings”: Cosco Holdings Pty Ltd vCommissioner for Taxation & Anor (1997) 37 ATR 432 at 440 per Spender J.

6. The relevant grounds of opposition to the Creditor’s Petition Application are set out in the Notice of Opposition at [22] above.

7. Mr Naumovic has filed voluminous affidavit material, much of it is irrelevant to the issues he needs to establish to satisfy the Court that the documents sought by the Kelly Documents Subpoena can assist him in resisting the Creditor’s Petition Application. It is not immediately apparent, for example, how it is that the Restricted Documents will establish that Mr Naumovic does not owe the money claimed by the Council as a consequence of the Interim Costs Order, or how it is that the Restricted Documents will establish that he is able to pay his debts for the purposes of s 52(2)(a) of the Bankruptcy Act.

8. What seems to be asserted by Mr Naumovic is that there is other sufficient cause for a sequestration order not to be made: Bankruptcy Act, s 52(2)(b), by reason of:

   (a)his being a whistle-blower;

   (b)either because he is a whistle-blower or because the Interim Costs Order was a default judgment, that the Court ought to go behind the Interim Costs order in order to determine whether the Judgment Debt the subject of the Creditor’s Petition Application is actually owed; and

   (c)further claims made by Mr Naumovic against the Council alleging, firstly, negligence and victimisation (“Negligence and Victimisation Claim”), and secondly, defamation and victimisation (“Defamation and Victimisation Claim”).

9. Section 5 of the PID Act provides that:

   5—Immunity for appropriate disclosure of public interest information

   (1)       If—

   (a)       …; or

   (b)a public officer makes an appropriate disclosure of public administration information, the person is not subject to any liability as a result of that disclosure.

   (2)This section has effect despite any duty of secrecy or confidentiality or any other restriction on disclosure (whether or not imposed by an Act) applicable to the person.

   (3)       …

   (4)A public officer makes an appropriate disclosure of public administration information for the purposes of this Act if the disclosure is made to a relevant authority and the public officer reasonably suspects that the information raises a potential issue of corruption, misconduct or maladministration in public administration.

   (5)A disclosure of public interest information is made to a relevant authority if it is made to—

   (a)       where the information relates to a public officer—

   (i)a person who is, in accordance with any guidelines prepared under section 14, designated as a person who is taken to be responsible for the management or supervision of the public officer or to the relevant responsible officer; or

   (ii)a person who is, in fact, responsible for the management or supervision of the public officer or to the relevant responsible officer; or

   (b)where the information relates to a public sector agency or public sector employee—

   (i)        the Commissioner for Public Sector Employment; or

   (ii)the responsible officer for the relevant public sector agency; or

   (c)where the information relates to an agency to which the Ombudsman Act 1972 applies—the Ombudsman; or

   (d)where the information relates to a location within the area of a particular council established under the Local Government Act 1999—a member, officer or employee of that council; or

   (e)       …; or

   (f)where the information relates to an irregular and unauthorised use of public money or substantial mismanagement of public resources—the Auditor-General; or

   (g)where the information relates to the commission, or suspected commission, of any offence—a member of the police force; or

   (h)       …; or

   (i)        …; or

   (j)        …; or

   (k)       a Minister of the Crown; or

   (l)        OPI; or

   (m)      any other prescribed person or person of a prescribed class.

10. Section 5 of the WBP Act, which was repealed with effect from 30 June 2019, was to similar effect to s 5 of the PID Act, and in particular s 5(1) of the WBP Act provided that a person making an appropriate disclosure of public interest information incurred no civil or criminal liability by doing so.

11. In s 4 of the PID Act “public interest information” is defined to mean, amongst other things, “public administration information”. That term, in turn being defined to mean “information that raises a potential issue of corruption, misconduct or maladministration in public administration (whether occurring before or after the commencement of this Act)”.

12. In s 4 of the PID Act “public officer” is given the same meaning as in the ICAC Act where “public officer” is defined in Sch 1 to include “a member of a local government body”. A “local government body” is defined in s 4(1) of the ICAC Act to mean a “council … established” under the LG Act. In the LG Act “member” is defined as “a councillor of the council”. With “councillor” meaning “a person appointed or elected as a councillor of a council” and “council” meaning “a council under” the LG Act: LG Act, s 4(1). Although he was a suspended member of the Council Mr Naumovic was a “public officer” by reason of being a councillor, and during the period he was a suspended councillor was capable of making a whistleblower complaint under either of the PID Act or the WBP Act.

13. The difficulty for Mr Naumovic is that the liability arising from the Interim Costs Order does not arise from an appropriate disclosure of public interest information. Rather, it arises from a refusal by Mr Naumovic to return to the Council documents in his possession, namely, the Restricted Documents, which he was not entitled to possess, and in relation to which the Council had to obtain from the SCSA the Injunction restraining Mr Naumovic “from accessing, using, or copying, disseminating or otherwise dealing with, in any way,” the Restricted Documents, provided that this did “not preclude” Mr Naumovic “from applying for the Restricted Documents through lawful means: Injunction Proceedings Judgment at [5]-[7], [10]-[11], [15-[16] and [21] per Judge Dart. Mr Naumovic therefore incurred the liability under the Interim Costs Orders in proceedings in which the Council successfully sought to enforce its right to restrict the use (in broad terms) of the Restricted Documents (amongst thousands of other documents) which Mr Naumovic had no right to access, use, copy, disseminate, or otherwise deal with.

14. The Injunction Proceedings Final Orders were not appealed by Mr Naumovic. There was therefore an appropriate legal basis for both the Initial Costs Order and the Interim Costs Orders to be made in favour of the Council. Mr Naumovic later failed in an application to set aside the Interim Costs Order: Interim Costs Order Set Aside Judgment, and did not appeal the Interim Costs Order or the refusal to set aside the Interim Costs Order.

15. Mr Naumovic’s assertion that he is a whistle-blower therefore does not assist him, because even if that be true (and the Court has not determined the truth of that assertion), the liability imposed by the Interim Costs Order was not imposed as a consequence of a disclosure of public interest information under s 5 of the PID Act (or to the extent applicable, s 5(1) of the WPA Act), but rather as a result of a refusal to return the Restricted Documents. Put another way, returning the Restricted Documents did not preclude Mr Naumovic from making disclosures of public interests information, and it was the refusal to return the Restricted Documents which gave rise to the liability in the Interim Costs Order, not any status he might have had as a whistle-blower.

16. It follows that Mr Naumovic’s assertions with respect to his being a whistle-blower, and that the Restricted Documents are somehow relevant to that issue, would not assist him to establish that he did not owe the money ordered to be paid by the Interim Costs Order, or that there was some other sufficient cause for a sequestration order not to be made. Mr Naumovic’s inability to access the Restricted Documents did, and does, not preclude him from making public interest information disclosures for the purposes of the PID Act (or before it the WBP Act). For similar reasons, Mr Naumovic’s argument that he requires the Restricted Documents to go behind the judgments giving rise to the Interim Costs Order cannot succeed. What, in fact, Mr Naumovic seeks to do by seeking to access the Restricted Documents is not to go behind the judgment giving rise to the Interim Costs Order, but rather to additionally go behind the judgments giving rise to the Initial Costs Order and the Injunction Proceedings Final Orders. Because the liability imposed for costs by the Interim Costs Order does not arise from a disclosure of public interest information, but rather a refusal to return the Restricted Documents, there is no basis to go behind any of the Injunction Proceedings Final Orders, the Initial Costs Order, or the Interim Costs Order: Wren, CLR at 224-225 per Barwick CJ; Ramsay Health Care at [54] per Kiefel CJ, Keane and Nettle JJ, especially in circumstances where there is nothing in the way of fraud, collusion or a miscarriage of justice giving rise to any of the Injunction Proceedings Final Orders, the Initial Costs Order or the Interim Costs Orders.

17. Insofar as Mr Naumovic complains that the Interim Costs Order was obtained in default of appearance the evidence establishes that Mr Naumovic was provided with the opportunity to appear by telephone but did not avail himself of that opportunity. As the Court observed in FCFCOA BN Set Aside Judgment at [128] (there in the context of an argument that the SCSA’s failure to adjourn the hearing of the Interim Costs Application was oppressive, and therefore an abuse of process):

    Courts have  a broad discretion in determining whether or not to adjourn proceedings: Myers v Myers [1969] WAR 19 at 21 per Jackson J, but in doing so must consider the interests of justice including issues of case management, delay and wastage of public resources: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. Mere assertion of, illness or injury and the provision of “bare” medical certificates which do not properly or adequately explain the reason why a litigant cannot appear at a hearing is not sufficient to warrant the grant of an adjournment: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75; Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1744 at [18]-[19] per Judge Lucev (and the Federal Court cases there cited). It is not evident how it is that the “health reasons” referred to by Mr Naumovic could be said to justify him not attending a hearing by telephone to argue for the adjournment, and, if then necessary, to argue the Interim Costs Application. It is plain that Mr Naumovic was given the opportunity to appear, but did not do so and did not adequately explain why not. On the evidence the SCSA considered Mr Naumovic’s request for adjournment, the reasons in relation thereto, and exercised its undoubted discretion not to grant an adjournment of the Interim Costs Application hearing. In the circumstances the Court is not satisfied that the SCSA’s refusal to adjourn the hearing of the Interim Costs Application was oppressive or an abuse of process. The decision of the SCSA (Judge Bochner) to proceed with the Interim Costs Application hearing was not oppressive and, therefore, not an abuse of process.

18. What all the bare medical certificate adjournment cases referred to above demonstrate is that:

    (a)it is unsatisfactory and insufficient for an applicant for an adjournment of proceedings to rely upon a medical certificate which asserts unfitness by reason of an unspecified medical condition with unspecified medical consequences beyond mere unfitness; and

    (b)there needs to be meaningful detail and content provided by the medical practitioner to explain why the medical condition and its consequences mean that the person seeking the adjournment cannot attend the proceedings personally, or to participate in the proceedings electronically or telephonically.

19. Further, nothing in the circumstances of Mr Naumovic’s application for adjournment of hearing of the Interim Costs Application is relevant to the Restricted Documents, as all of the restricted documents were created and precede the hearing of the Interim Costs Application by more than three years, and in that regard they have no possible connection with the Interim Costs Application proceedings or the making of the Interim Costs Order.

20. This Court is able to go behind the Interim Costs Order Judgment, however it will not be done as a matter of course: Wren, CLR at 224 per Barwick CJ. This Court needs to consider whether it has sufficient reason not to exercise its discretion to treat the Interim Costs Order Judgment as satisfactory proof of the Judgment Debt. It should only exercise its discretion to go behind the Interim Costs Order Judgment where there are substantial reasons for doubting there really is a debt due to the Council: Corney v Brien [1951] HCA 31; (1951) 84 CLR 343; (1951) 15 ABC 154; [1951] ALR 525; (1951) 25 ALJ 133. Relevant and helpful in this regard are the observations of the Federal Court in Deputy Commissioner of Taxation v Cumins [2008] FCA 353; (2008) 70 ATR 855; (2008) 6 ABC(NS) 12; (2008) 101 ALD 78 (“Cumins”) at [16]-[18] per Gilmour J where the Federal Court said as follows:

    16The Court is entitled to inquire whether a judgment is founded on a real debt.  In general, a court exercising jurisdiction should not proceed to sequestrate the estate of a debtor where an appeal is pending against the judgment relied on as the foundation of the bankruptcy proceedings, provided that the appeal is based on genuine and arguable grounds: Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 at 148; Bayne v Baillieu (1907) 5 CLR 64.

    17The mere fact that an appeal has been lodged does not without more, give rise to a duty to postpone the hearing of the petition: in Re Flatau: Ex Parte Scotch Whisky Distillers (1882) 22 QBD 83 (CA) at 84-85; nor will the court as a matter of course inquire into the validity of a judgment debt: Wren v Mahony (1972) 126 CLR 212 at 222-223.

    18The test to be applied has been described variously. The judgment debtor must point to grounds having “a real chance of success on appeal”: Re Lewin: Ex Parte Milner (1986) 11 FCR 312 at 318; or ensure “that substantial reasons are given for questioning” whether there was in truth a debt: Wren 126 CLR 212 at 225. It is not enough to rely upon mere assertion. The onus is on the applicant for a stay to show the existence of a genuine dispute by adducing evidence establishing the substantial nature of the grounds of challenge: Verma, Virendra Kumar v Deputy Commissioner of Taxation [1983] FCA 388 referred to with approval in Re Verma 4 FCR 181 at 187.

    Cumins was cited with approval in Russell v Polites Investments Pty Ltd [2012] FCA 11 at [23] per Flick J.

1. It follows from the reasons set out above at [59]-[66] that there is no evidence of the existence of a genuine dispute in relation to the existence of the Judgment Debt, and nothing in the circumstances of this case as it relates to Mr Naumovic being an alleged whistle-blower or in relation to the circumstances in which orders (including the Injunction) were made in the Injunction Proceedings Final Orders or, more relevantly, the Interim Costs Order, which would warrant this Court exercising its discretion to go behind the judgment comprised by the Interim Costs Order.

2. It follows that nothing put by Mr Naumovic in relation to the issue of his being an alleged whistle-blower or in seeking to go behind the Judgment Debt based upon the Interim Costs Order satisfies the Court that there is a legitimate forensic purpose for production of the Restricted Documents, as sought in the Kelly Documents Subpoena. Likewise, there is nothing put by Mr Naumovic which means that it is “on the cards” that the Restricted Documents would materially assist Mr Naumovic to resist the Creditors Petition Application.

   Other sufficient cause

3. Mr Naumovic appears to rely upon what he describes as two genuine and arguable claims against the Council that have not previously been considered by the Court in earlier bankruptcy proceedings, as constituting an “other sufficient cause”: s 52(2)(b) of the Bankruptcy Act, not to grant the Creditors Petition Application. These claims are constituted by the Negligence and Victimisation Claim and the Defamation and Victimisation Claim.

4. The term “other sufficient cause” in s 52(2)(b) of the Bankruptcy Act is construed broadly by the courts: Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193; (2008) 247 ALR 180; (2008) 5 ABC(NS) 691 at [87] per Cowdroy J; Totev v Sfar [2006] FCA 470; (2006) 230 ALR 236; (2006) 4 ABC(NS) 325 (“Totev 2006”) at [44] per Allsop J. In Totev 2006 at [37] per Allsop J (citing Cain v Whyte [1933] HCA 6; (1933) 48 CLR 639; (1933) 6 ABC 117; (1933) 6 ALJ 457 (“Cain”)) the Federal Court observed that:

   On proof of the matters in s 52(1) of the Act, the Court will generally proceed to make a sequestration order unless the debtor is able to persuade the Court that the public interests in dealing with the insolvent debtor and the rights of individual creditors are outweighed by other considerations.

5. In Cain CLR at 648 per Rich J (with whom Starke, Dixon, Evatt and McTiernan JJ agreed: CLR at 648) the High Court, in dismissing an appeal, agreed with the judgment of the Court of Bankruptcy (District of Southern Queensland), which had observed as follows: CLR at 645-646:

   …To my mind, the High Court of Australia did not intend to put a limit on the meaning of the words “other sufficient cause” in Dowling v. Colonial Mutual Life Assurance Society(1915) 20 CLR 509, and I do not propose to be the first to say that such wide words as “other sufficient cause” are necessarily limited to meaning a cause in the nature of fraud or abuse of the provisions of the bankruptcy law. I can well conceive that “other sufficient cause” might arise in connection with any particular case. To my mind, it is the duty of the Bankruptcy Judge to examine in each case, if the question is raised, whether there is other sufficient cause than the fact that the debtor is able to pay his debts in full, for refusing to make an order.

   I rule then that I am fully entitled to examine the contention put forward by Mr. Philp on behalf of the debtor that there is, in the present case, other sufficient cause sufficient to justify the dismissal of this petition. I approach that question with the full appreciation that, prima facie, on proof of the matters mentioned in sec. 56 (2), the Court will proceed to make an order for sequestration, and that it is for the debtor to show some cause overriding the interest of the public in the stopping of unremunerative trading, and the rights of individual creditors who are unable to get their debts paid to them as they become due. Something has to be put before the Court to outweigh those considerations before it can be said that sufficient cause is shown against the making of a sequestration order. …

6. In Re Svir; Ex parte Commissioner of Taxation (1998) 83 FCR 314; (1998) 39 ATR 113; (1998) 154 ALR 710; FCR at 317 per Burchett J the Federal Court (after referring to the above passage from Cain) highlighted the need to have regard to the interests of the public and creditors when assessing whether an “other cause” raised by an applicant is “sufficient” for the purposes of exercising its otherwise wide discretion under s 52(2) of the Bankruptcy Act:

   This exposition of the law emphasises the width of the discretion conferred by the 1966 Act upon the Court. At the same time it points to a fundamental limitation imposed by the nature of the jurisdiction in bankruptcy, which requires the Court to keep in mind, not only the interests of the individual parties before it in the particular case, but also the public interest, which may be adversely affected by the propping up of insolvency. However, in the present case that factor does not provide the bar to an exercise of discretion in the debtor's favour that it would provide in many cases, since the debtor has a paucity of creditors, other than the petitioning creditor, who would be likely to have any reason for concern. Of course, that merely removes a bar; it does not provide a positive ground constituting “other sufficient cause” why a sequestration order ought not to be made.

7. In summary, it can be said that an “other sufficient cause” for the purposes of dismissing a creditor’s petition is not limited and that the Bankruptcy Act confers a discretion on the Court which in its terms is unconfined: Baker v Perpetual Trustee Company Limited [2012] FCA 553; (2012) 204 FCR 593 at [35] per Katzmann J.

   Further claims

   The Negligence and Victimisation claim

8. Mr Naumovic’s April 2023 Affidavit at [39] and [40] describes the Negligence and Victimisation Claim as follows:

   I have a claim against the District Council of Coober Pedy for Negligence and Victimisation in regards to the negligent prosecution of me in the Supreme Court of South Australia when the Council knew I was a Whistle-blower and owed me a duty of care.

   I am seeking compensation for among other things, the costs incurred in the Supreme Court Proceedings, the costs incurred defending the Bankruptcy notice and general damages for harm and detriment I have suffered as a result of the Applicant’s negligent actions. The initial damages that I am seeking that encompass those damages are in the amount of $1,426,500 being far more that what the Creditor’s Petition is based on.

9. There is not, on the face of it, any negligence in the action taken by the Council (which was not a prosecution) to obtain the Injunction, and having successfully obtained the Injunction, to obtain the costs of securing the Injunction by obtaining the Interim Costs Order. As set out above, even if Mr Naumovic was a whistle-blower it did not give him the right to retain the Restricted Documents, and it was his failure to deal appropriately with the Restricted Documents that led to the making of the Injunction, and consequently to the making of the Interim Costs Order. It is very difficult to understand how it is that Mr Naumovic can successfully establish negligence and victimisation by the Council in circumstances where the Council has legally sought and obtained the Injunction and the Interim Costs Order in the SCSA, and all the more so where, even if Mr Naumovic is a whistle-blower, it makes no difference to the outcome of the Injunction Proceedings giving rise to the Interim Costs Order (for reasons set out at [59-[68] above). Comity between federal and state courts is an important consideration in deciding cases, and this Court ought not, even by somewhat indirect means such as now sought by Mr Naumovic, be seen to be re-litigating an issue or issues already determined by the SCSA: Pegasus Leasing Limited v Cadoroll Pty Limited & Ors (1996) 59 FCR 152 at 157 per Lee and Tamberlin JJ; Sims v Jooste & Ors (No. 2) [2016] FCCA 1468 at [29] per Judge Lucev.

10. In the circumstances, the Court is not satisfied that the Negligence and Victimisation Claim constitutes an “other sufficient cause” for the purposes of s 52(2)(b) of the Bankruptcy Act. Nor, for similar reasons, does the Court consider there is a legitimate forensic purpose to cause the Restricted Documents to be produced in this proceeding on the basis of the Negligence and Victimisation Claim.

    The Defamation and Victimisation Claim

11. Mr Naumovic’s claim for defamation and victimisation was described in a “Final Notice” in the Naumovic April 2023 Affidavit. The proposed claim relates to alleged defamation and victimisation arising from a report, attachments and “verbal commentary” during the discussion of agenda items during a Special Council Meeting of the Council on 31 January 2023. One of the attachments to the report is said to relate to the subject matter of previous proceedings in relation to an MCSA claim where a judgment was awarded in Mr Naumovic’s favour. At hearing on 14 October 2024 Mr Naumovic tendered as Exhibit 1 the DCSA Claim which appears to relate to the same subject matter as the Defamation and Victimisation Claim, but also includes various complaints of breaches of the ICAC Act and the PID Act and the LG Act.

12. The difficulty for Mr Naumovic is that the DCSA claim as it relates to the Special Council Meeting on 31 January 2023 requires an extension of time to be granted before there is, in relation to that issue, a live action. There is therefore presently no Defamation and Victimisation Claim as such before the DCSA. A further difficulty is that the content of the Defamation and Victimisation Claim is not reproduced in Exhibit 1, but merely the claim and the table of contents to the Statement of Claim. It is thus not possible for the Court to determine precisely what it is that has finally been claimed by Mr Naumovic in the Defamation and Victimisation Claim, or how it is that the amount claimed of $1,893,600 is sought to be justified. Likewise, in relation to the 15 alleged breaches of, variously, the ICAC Act, the PID Act and the LG Act, it is not possible to determine the alleged particulars or content of any alleged breach. Further, it is not apparent that even if there were a breach of any of those Acts, and that if any monetary penalty were to be imposed by a court, that that monetary penalty would necessarily be paid to Mr Naumovic, as the relevant Acts do not contain provisions specifying to whom civil penalties must be paid: contrast s 546(3)(c) of the Fair Work Act 2009 (Cth) which provides that a court may order that a pecuniary penalty be paid to a “particular person”.

13. In the circumstances, the Court is not satisfied that the Defamation and Victimisation Claim constitutes an “other sufficient cause” for the purposes of s 52(2)(b) of the Bankruptcy Act. Nor does the Court consider there is a legitimate forensic purpose to cause the Restricted Documents to be produced in this proceeding on the basis of the Defamation and Victimisation Claim.

    Otherwise

14. The Court notes that, in addition to the Judgment Debt of $43,831.85, Mr Naumovic would appear to:

    (a)be indebted to the Council in a further sum of $43,652.16 awarded by the SCSA in the Injunction Proceedings as a final costs order in the Injunction Proceedings, in addition to the Interim Costs Order: Marinos December 2023 Affidavit at [10];

    (b)be indebted to the Council in a further sum of $44,757.71 awarded by the SCSA in relation to the taxation of costs in the Injunction Proceedings: Marinos December 2023 Affidavit at [17]; and

    (c)have not paid a sum of $34,500 in security for costs ordered to be paid by the MCSA in February 2023 in an action against the Council in the MCSA alleging negligence and victimisation, which action was stayed, and then dismissed for want of prosecution in September 2023: Marinos December 2023 Affidavit at [24]-[25] and [30].

15. Mr Naumovic is therefore it seems indebted to the Council in the sum of $131,228.68 arising from the injunction proceedings alone, without taking into account any costs payable as a result of other litigation involving him, the Council and Mr Jackson, or any indebtedness to other creditors. This is not to say that Mr Naumovic may not be able to pay his debts or prove his solvency at the final hearing of the Creditors Petition Application, but the indebtedness to the Council alone is a factor which, having regard to the Court’s findings above in relation to the Restricted Documents: see [59]-[68] above, weighs against production of the Restricted Documents being ordered on the basis that it might assist Mr Naumovic to establish an “other sufficient cause”, and which might warrant the dismissal of the Creditor’s Petition Application.

16. The Court notes that the Negligence and Victimisation Claim and Defamation and Victimisation Claim, or at least part of each of them, might fit within the exception to the stay of legal proceedings applicable to proceedings brough by a bankrupt prior to bankruptcy by reason of s 60(4) of the Bankruptcy Act: Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713; (1935) 8 ABC 58; (1935) 9 ALJ 127; [1936] ALR 40, CLR at 721 per Dixon J; Moss v Eaglestone [2011] NSWCA 404; (2011) 83 NSWLR 476; (2011) 257 FLR 96: (2011) 285 ALR 656; (2011) 9 ABC(NS) 622 at [8] per Allsop P (defamation claim); and therefore might be able to be continued by Mr Naumovic personally even if a sequestration order were ultimately to issue as a result of the Creditors Petition Application. That said, it is not, however, generally in the public interest to allow insolvent debtors to prosecute litigation, unless the insolvent debtor can demonstrate that the state of insolvency is likely to be of only short duration: Re James & Anor; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (No. 2) (1994) 51 FCR 14 at [22] per Olney J; International Alpaca Management Pty Ltd v Ensor [1999] FCA 72 at [54] per Katz J. It is readily apparent, however, given the history of litigation between these parties, and even supposing that Mr Naumovic were able to finally properly formulate and bring to hearing some of the causes of action he now posits, that those actions would not be decided within any reasonable time, and probably not, to borrow a phrase from Robert Frost’s “The Road Not Taken”, until “ages and ages hence”.

17. In all of the above circumstances, the Court considers that Mr Naumovic has failed to establish that production of the Restricted Documents would assist him to establish an “other sufficient cause”, which might warrant the dismissal of the Creditor’s Petition Application.

    Abuse of process

18. The Council asserts that the Kelly Subpoena Review Application is an abuse of process.

19. In HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [74] per Perry J the Federal Court observed that:

    The categories of abuse of process are not closed. However, certain categories are well-established. As Justice McHugh observed in Rogers v R (1994) 181 CLR 251 at 286:

    … abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process. In Walton v Gardiner, Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process “extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.

20. In relation to the Council’s allegation that the Kelly Subpoena Review Application is an abuse of process, the Court is not satisfied that that allegation is made out, because:

    (a)Mr Naumovic is entitled to use the Court’s processes to seek the issuance of the Kelly Documents Subpoena;

    (b)whilst no doubt annoying to the Council, it cannot be said that the use of the Court’s processes in this regard is oppressive to the Council (at least not at this stage); and

    (c)whilst the proceedings involving Mr Naumovic’s bankruptcy generally, including the Creditors Petition Application, have taken up a considerable amount of the Court’s time and effort, not least because of the nature of Mr Naumovic’s Affidavits and Outline of Submissions and various misconceived and spurious arguments, it is not such as to bring the administration of justice into disrepute, and is not necessarily unusual in bankruptcy proceedings involving self-represented litigants (and sometimes legally represented litigants!) in this Court.

21. In the circumstances, the Council has not established that the Kelly Subpoena Review Application is an abuse of process.

    Issue Estoppel

22. Issue estoppel is a judicial determination directly involving an issue of fact or law which has disposed of the issue so that it cannot thereafter be raised by the same parties: Blair. Three requirements need to be satisfied before an issue estoppel arises:

    (a)the same question has been decided;

    (b)the judicial decision which is said to create the estoppel was final; and

    (c)the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies: Carl Zeiss Stiftungv Rayner and Keeler Ltd and Ors (No 2) [1967] 1 AC 853; [1966] 3 WLR 125; [1966] 2 All ER 536 at 565 per Lord Guest.

23. In FCFCOA BN Set Aside Judgment at [12(l)(ii)] the Court noted that Mr Naumovic had requested the Court to issue a subpoena to the Council for the production of the Restricted Documents, and at [133(c)] that Mr Naumovic had sought to have the Council produce the Restricted Documents. The observations made by the Court in relation to the Restricted Documents at [138] are set out above (at [35(f)]), and the Court did not issue a subpoena for the Council to produce the Restricted Documents. The Court is therefore satisfied that the same question has been decided.

24. In relation to the second issue as to whether the FCFCOA BN Set Aside Judgment said to create the estoppel was final, that test cannot be met, because the judicial decision there made was made in relation to the Bankruptcy Notice Set Aside Application. The judicial decision there made was final for the purposes of the issue as to the setting aside of the Bankruptcy Notice, but not otherwise.

25. The issue in these proceedings, however, relates to a new and separate application with respect to the issuance of the Kelly Documents Subpoena, seemingly with a view to establishing that there is a legitimate forensic purpose vis-à-vis Mr Naumovic’s opposition to the Creditors Petition Application, including whether there is some other sufficient cause for a Creditors Petition not to be made as sought by the Council. The basis for the other sufficient cause argument by Mr Naumovic involves a slightly different factual context in relation to his claims to be a whistle-blower who is entitled to protection from liability (and specifically the liability for the Interim Costs Order) and the two new claims now said by Mr Naumovic to be arguable, namely the Negligence and Victimisation Claim and the Defamation and Victimisation Claim. In those circumstances, it cannot be said that the judicial decision made in the FCFCOA BN Set Aside Judgment in relation to the issuance of a subpoena to the Council in relation to the Restricted Documents was necessarily final with respect to the Creditors Petition Application, notwithstanding that there are many common facts, issues and arguments in relation to Mr Naumovic’s seeking, and the Council opposing, the issuance of the Kelly Documents Subpoena in relation to the Creditor’s Petition Application.

1. It follows that issue estoppel is not established in relation to the Kelly Documents Subpoena application.

   Harman Undertaking

2. Council objects to the issuance of the Kelly Documents Subpoena on the basis of that it says the Restricted Documents are the subject of a Harman Undertaking given in the SCSA in the Injunction Proceedings. In broad terms a Harman Undertaking is an obligation imposed on a party not to use documents obtained during the course of litigation for any other purpose: Harman.

3. As to the Harman Undertaking the Federal Court in Forty Two International Pty Limited v Barnes [2010] FCA 397 (“Forty Two International”) said at [66]-[74] per Judge Yates as follows:

   66It is not in dispute that a document produced pursuant to the compulsory processes of the court is entitled to special protection, such that it may not be used for any purposes other than those related to the litigation in the course and for the purposes of which the document is produced. This obligation is qualified to the extent that it must yield to inconsistent statutory provisions and to the requirements of curial processes in other litigation: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32-33.

   67This principle is one of general application. Examples of the application of the principle include: where the document is produced on discovery … including where the document is made available in an arbitration as on discovery …; where the document is produced on subpoena …; where answers are provided to interrogatories …; and in respect of witness statements ….

   68The principle has been expressed in terms of an implied “undertaking” given to the court. However, as explained in Hearne v Street (2008) 235 CLR 125 in [105]-[108], this characterisation of the obligation is a conceptual artefact having its origins in the historical requirement that the use of documents generated by litigious processes depended on the giving of an express undertaking: Richardson v Hastings (1844) 7 Beav 354; Hopkinson v Lord Burghley (1867) LR2 Ch App 447. Since at least the decision in Alterskye v Scott [1948] 1 All ER 469, the principle has also been described in terms of an implied “obligation”. The plurality in Hearne characterised the principle as an obligation of substantive law ….

   69… the obligation is to be understood as applying to documents and information. In Crest at 854, Lord Oliver said:

   It has recently been held by Scott J. in Sybron Corporation v Barclays Bank Plc. [1985] Ch. 299 - and this must, in my judgment, clearly be right - that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind. But the implied undertaking is one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can, in appropriate circumstances, be released or modified by the court.

   70What lies at the root of the principle involved is the fact that information has been disclosed compulsorily by use of the court's process. ….

   71In my view, in the case of documents produced in answer to a subpoena, the protection of the obligation extends beyond the documents themselves to information derived from the fact of production, including the fact that the documents are or were in the possession of the person who produced them and the fact that, at least prima facie, the documents are of a description that answers the call of the subpoena.

   72The obligation restricts not only the disclosure of the documents or information, but also more general instances of use of the documents or information outside the purposes of the proceeding in and for which the documents or information were disclosed. ….

   73Plainly the obligation to the court can be released or modified by leave granted by that court. The scope of the leave may be general or limited, and leave may be granted on terms.

   74In Crest, Lord Oliver at 860 stated that a court will not release or modify this obligation except in special circumstances. In Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3, a Full Court of this court, following the approach in Springfield, which approved Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 and Sweetman v Australian Thoroughbred Finance Pty Ltd (unreported, Lockhart J, 23 July 1992), said in [31]:

   … It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. …

4. In Barnes v Forty Two International Pty Limited [2010] FCAFC 87 an appeal against Forty Two International was dismissed, with the Full Court of the Federal Court not expressing any disapproval of the statement of principle concerning the Harman Undertaking in Forty Two International.

5. Once the material is adduced in evidence it enters the public domain, and the protection of the Harman Undertaking is lost, unless the court restrains further publication: Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; (1995) 69 ALJR 404; (1995) 128 ALR 391 (“Esso Australia Resources); CLR at 32-33 per Mason CJ. Further, the duty of confidentiality may give way to other duties, including the requirement to respond to a subpoena in other proceedings: Esso Australia Resources at [33] per Mason CJ; Re Clarecastle Pty Ltd (in liq) [2011] 251 FLR 225. The Court notes that in Esso Australia  Resources the High Court observed that the Harman Undertaking must yield to the requirements of curial processes in other litigation: CLR at 32-33 per Mason CJ.

6. The Court notes that it is not permissible to disclose documents subject to the Harman Principle in order to advance a public purpose, and that a party wishing to be relieved of the undertaking in order to do that must apply to the court to which the documents were disclosed for release from the Harman Undertaking: Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 334-335 per Anderson J.

7. Documents discovered in one set of proceedings which are subject to the Harman Undertaking remain subject to it even if they are discoverable in a second set of proceedings: and it is necessary for the beneficiaries of the Harman Undertaking to be given an opportunity to advance arguments restricting the right of inspection of the documents enjoyed by the party to whom discovery was made in the second set of proceedings: City of Swan v McGraw-Hill Companies Inc (2014) 226 FCR 462.

8. In these proceedings, Mr Naumovic’s primary purpose in seeking to have the Restricted Documents produced appears to be to attempt to establish that he is a whistle-blower, imagining, wrongly, that this is relevant to, and will relieve him of the obligation imposed by, the Interim Costs Order. As explained above, the question of whether Mr Naumovic is whistle-blower is not relevant, and was not relevant, to the question at issue in the Injunction Final Orders Proceedings. The question there was whether the Restricted Documents were the property of the Council and ought to be returned to the Council as the confidential information of the Council. As further explained above, that issue does not preclude Mr Naumovic from being a whistle-blower, but merely from utilising the Restricted Documents (and any information therein) when he makes whistle-blowing complaints. If the Restricted Documents are to be accessed it is more than likely that they are capable of being accessed by a body to which Mr Naumovic might make a whistle-blowing complaint.

9. The evidence that the Harman Undertaking is invoked in these proceedings does not establish that the Restricted Documents were provided to the SCSA with the necessary element of compulsion, and the Council’s submissions did not point to why or how it might otherwise be that the provision of the Restricted Documents to the SCSA in the Injunction proceedings was attended by an element of compulsion. On the evidence led and the submissions made in these proceedings, the Court has not been satisfied that the Harman Undertaking applies to the Restricted Documents.

   Injunction still in force

10. A significant factor in determining this matter is the fact that the Injunction remains in force. Further the Injunction Proceedings Final Orders were not appealed and have not been aside. Indeed, no application has been made to set aside the Injunction Proceedings Final Orders, or to dissolve the Injunction. Having regard to the fact that the Court has concluded that the Kelly Documents Subpoena serves no legitimate forensic purpose, the fact that the Injunction remains in place is a significant factor weighing in favour of the Council’s objection to the issuance of the Kelly Documents Subpoena.

    Evidence Act

11. In the context of a de novo review in which the Court considers matters afresh Mr Naumovic’s submission that, having regard to s 55 of the Evidence Act, the Registrar took too narrow a view of the evidence goes nowhere as the Court’s role is too consider the evidence afresh: Pattison at [6]-[20] per Nicholson J and [43] per Jacobson J; Bechara at [17] per Allsop CJ, Markovic and Colvin JJ, which it has done.

12. As to Mr Naumovic’s submission in relation to s 187 of the Evidence Act somehow requiring production of the Restricted Documents that cannot succeed because the Council’s opposition to the production of the Restricted Documents is not based upon a tendency to incriminate or exposure to penalty, and therefore s 187 of the Evidence Act has no application to the facts of this matter.

    Iniquity rule

13. Mr Naumovic sought to rely on the so-called “iniquity rule” to justify the production of the documents in the Kelly Subpoena Documents. The Council submitted that the iniquity rule had no application in the circumstances of the case.

14. In relation to the iniquity rule it has been said that:

    (a)iniquity qualifies the circumstances in which there may be a claim to confidentiality by denying the necessary element of legally recognised confidentiality to communication, or as a defence of just cause or excuse to disclosure for breaking the confidence: Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 (“Corrs Pavey”) at 456 per Gummow J; Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1; (2020) 276 FCR 477 (“Zantran”) at [29] per Allsop CJ;

    (b)the existence of an iniquity requires something in the sense of a crime, civil wrong or serious misdeed of public importance, where the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed: Corrs Pavey at 456 per Gummow J; and

    (c)there is no broad defence of “public interest” to a claim of confidentiality: Zantran at [30] per Allsop CJ.

    (d)to make findings of iniquity requires more than mere allegations of iniquity, and the iniquity rule requires that the information demonstrate that a crime, civil wrong or serious misdeed of public importance has been committed, that is that the information must contain or disclose the wrongdoing: AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464 at [200], [204] and [208 per Campbell J; AWB Limited v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; (2006) 234 ALR 651 at [217]-[218] per Young J.

15. In this case Mr Naumovic has made broad-ranging allegations of, at least fraud and civil wrongs, in relation to the Council’s conduct, but the allegations rise no higher than the making of mere allegations of iniquity, and in relation to which it is not evident that the Restricted Documents contain or disclose the alleged fraud or civil wrongs. Mr Naumovic is not entitled under the iniquity rule to “open up” the Restricted Documents on the basis of mere allegations. And, even if there were some evidence of  the alleged fraud or civil wrongs (which there is not) Mr Naumovic would be faced with the difficulty that this matter was not argued in the Injunction Proceedings, and although the SCSA was aware of the iniquity rule: Injunction Proceedings Judgment at [15] per Judge Dart, it did not seek to have it addressed by the parties, from which it can be inferred that it did not consider it an issue which arose on the facts or which needed to be considered. In the circumstances it is hard to see how it is that the Interim Costs Order could now be set aside, especially bearing in mind that the Interim Costs Order Stay Application and the Interim Costs Order Set Aside Application made by Mr Naumovic were both dismissed. For these reasons the iniquity rule does not assist Mr Naumovic in this matter. 

    Legal Professional Privilege

16. Given the conclusions reached above in relation to the Kelly Documents Subpoena it is unnecessary to consider the Council’s claim of legal professional privilege in relation to four of the documents sought to be subpoenaed.

    RECUSAL

17. Given some of the findings made by the Court in reaching its conclusion that the Subpoena Review Application is to be dismissed, especially as to whether the Restricted Documents would assist Mr Naumovic to establish an “other sufficient cause” which might warrant the dismissal of the Creditor’s Petition Application, and some of the generally expressed views about other matters (including the nature and utility of Mr Naumovic’s affidavits), the Court has determined, albeit that it is a step not lightly to be taken, that it is appropriate that there be a recusal of the presently presiding Judge so as to avoid any perception of bias or pre-judgment in relation to the determination of the Creditors Petition Application, or any of the issues in relation thereto: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419; (2023) 409 ALR 65 at [37]-[38] per Kiefel CJ and Gageler J; Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169 at [46]-[48] per Rangiah, Charlesworth and Banks-Smith JJ.

    CONCLUSION AND ORDERS

18. The Court has concluded that the Kelly Subpoena Review Application is to be dismissed, and the orders of the Registrar made in Registrar’s Subpoena Review Decision setting aside the Kelly Documents Subpoena are to be confirmed. There will be an order accordingly. There will also be an order that the Restricted Documents produced to the Court by the Council pursuant to order 7 of the Court’s order of 30 November 2023 be returned to the solicitors for the Council.

19. The Court has also concluded that there will be a recusal of the presently presiding Judge. The recusal will be dealt with administratively by the Court. The matter will be re-docketed to another Judge of the Court for final hearing of the Creditors Petition Application.

20. The Court will hear the parties as to costs.

I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       11 December 2024