Merkuloff v Yalisheff

[2003] NSWSC 1183

CITATION:	Merkuloff v Yalisheff [2003] NSWSC 1183
HEARING DATE(S):	8/12/03
JUDGMENT DATE:	8 December 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Grant stay of the plaintiff's claim until further order. Costs of the motion reserved.
CATCHWORDS:	EQUITY [317]- Injunction- Application for mandatory injunction to compel plaintiff to gain information from Commonwealth authority- Relevance of fact that Commonwealth legislation seeks to protect authority from all subpoenas- Obligation of plaintiff not to impede court in deciding issues- Social Security (Administration) Act 1999, s 207.
LEGISLATION CITED:	Social Security (Administration) Act 1999, s 207
CASES CITED:	Colakovski v Australian Telecommunications Commission Corporation (1991) 29 FCR 429; 100 ALR 111 J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 41 ALR 539 Jervis v Berridge (1873) LR 8 Ch App 351 Langman v Handover (1929) 43 CLR 334 Lodge v National Union Investment Company Ltd [1907] 1 Ch 300
PARTIES :	Vladimir Merkuloff (P) Taisia Yalisheff (D)
FILE NUMBER(S):	SC 5797/03
COUNSEL:	M Tzannes (P) P Batey (D)
SOLICITORS:	Barwick Boitano (P) The Argyle Partnership (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 8 December 2003

5797/03 – MERKULOFF v YALISHEFF

JUDGMENT

1 HIS HONOUR: In this case the plaintiff has commenced proceedings in this Court for orders under the Property Relationship Act 1984 (NSW).

2 The plaintiff has sworn to the truth of paragraph 7 of his statement of claim that during the course of the relationship he was employed as a consultant engineer. The plaintiff is no longer employed in this capacity and is now retired.

3 The defendant has said in her defence that she denies para 7 of the statement of claim, and says that from the commencement of the relationship, from approximately June 1994, the plaintiff was in receipt of unemployment benefits. However, he was actually receiving a salary from October 1994 to August 1995. Then from October 1997 to December 1997 he was on New Start Allowance and from December 1997 he was on a disability pension.

4 The defendant, in order to deal with that issue at the trial, wishes to obtain the information as to what the plaintiff told the appropriate Commonwealth authority. The defendant asked the plaintiff's solicitor for consent to make an application under the Freedom of Information Act 1982 (Cth) to obtain that information from the Commonwealth authority known as Centrelink. The plaintiff declined to give this consent.

5 The defendant then filed a notice of motion to this Court to compel the plaintiff to make such an application.

6 The plaintiff's principal defence is that this Court has no jurisdiction to make such an order. That argument proceeds under s 207 of the Social Security (Administration) Act 1999 (Cth), which provides that an officer must not, except for the purpose of social security law, be required to produce any documents in his or her possession to a court having power to require the production of documents, or the answering of questions.

7 There are other parts of the Social Security (Administration) Act, namely ss 202, 203 and 204 which tend in the same direction, but it is not necessary to review these because they are not as strong as s 207.

8 There must be some doubt as to whether the power of the Commonwealth is sufficiently wide to prohibit a State court, in due exercise of its jurisdiction in a purely State matter, not to be able to issue a subpoena and even to imprison the officer for contempt if he or she does not obey it.

9 Ms Tzannes for the plaintiff calls in aid the decision of the Full Federal Court of Australia in Colakovski v Australian Telecommunications Commission Corporation (1991) 29 FCR 429; 100 ALR 111, in which that Court considered the various public interests involved in preventing access to information in the possession of Centrelink.

10 The decision says absolutely nothing as to the power of a State court exercising State jurisdiction to issue a subpoena. It does, however, indicate that on the merits the matter of the confidentiality of information supplied to Centrelink is something that one would take into consideration, and doubtless one would also take it into consideration when assessing whether or not Centrelink should be imprisoned for obeying Commonwealth law rather than State law.

11 Accordingly, in my view, nothing that has been put forward by Ms Tzannes shows that this Court does not have jurisdiction to make the sort of order that the defendant seeks.

12 I do not consider that I should make the order that the defendant seeks on the notice of motion because one can foresee that if that happened the parties would be embroiled in very expensive, dry, procedural disputes involving the State and Commonwealth powers in a case where they really have very little property between them.

13 If the court were to make such an order virtually the whole of all of the property on both sides would be wasted on legal expenses. The court has a public duty not to allow people to destroy themselves by doing that.

14 When a person brings a claim in the Supreme Court in its Equity jurisdiction, that person is saying to the court that they want that claim adjudicated according to law and equity. With certain types of claims, such as claims for relief against forfeiture, the plaintiff will have no locus standi unless he or she abandons all common law rights: Jervis v Berridge (1873) LR 8 Ch App 351, 358.

15 That principle does not extend to all litigation in equity, as is clear from Lodge v National Union Investment Company Ltd [1907] 1 Ch 300 and see J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 41 ALR 539 (Full Federal Court). However, it has a wide application so that claims by infants not to have to repay monies because of the defence of infancy, or people borrowing money from unregistered money lenders seeking return of securities but not seeking to repay the money, when they come to equity are deemed to have abandoned all their common law rights to such defences.

16 As Isaacs J said in Langman v Handover (1929) 43 CLR 334-5, when applying these principles, in many cases the Court requires the plaintiff to be "rectus in curia", before being heard. A rough Australian translation is "Fair Dinkum with the Court".

17 When a person does bring proceedings in this Court, he or she is under an obligation to assist the court in coming to a fair conclusion. If a person deliberately says to their opponent and to the court "I will not co-operate" then the usual consequence is that their action is stayed until they do co-operate.

18 The defendant has not asked for that, but within Pt 40 r 1 of the Supreme Court rules, the Court may, on any application, make whatever order is appropriate to be made in the circumstances of the case.

19 I have no doubt that I have power to make an in personam order to the plaintiff to cause Centrelink to produce the documents to him under the Freedom of Information Act. However, as I say, I do not want the parties to waste lots of money on legal costs and, accordingly, the appropriate order to make is that the plaintiff's proceedings be stayed until the plaintiff forwards to the defendant the information required. How the plaintiff gets that information is a matter for him.

20 There is some evidence to suggest that the defendant might have the information already. This is extremely unlikely, or she would not waste legal costs seeking it, but if that can be established by the prompt use of discovery and interrogatories then it may well be a reason why a Master will lift the stay.

21 Likewise, it may be that the defendant will think that the administration of interrogatories may advance the case to a stage where the whole claim, including her cross-claim, can be heard at one and the same time.

22 The proceedings in due course should be heard by a Master, but in the meantime I will grant a stay of the claim until further order and put the matter in the Registrar's list for mention on 3 February 2004.

23 I will reserve the costs of the motion. The exhibits may be returned.

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Last Modified: 12/11/2003