CITATION: Merkuloff v Yalisheff [2003] NSWSC 1183 HEARING DATE(S): 8/12/03 JUDGMENT DATE:
8 December 2003JURISDICTION:
Equity DivisionJUDGMENT 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 300PARTIES :
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…
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- Case
- [2003] NSWSC 1183
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the plaintiff was entitled to an injunction compelling the defendant to disclose information held by the Commonwealth authority and whether the Commonwealth legislation precluded the court from granting such an injunction. The court needed to consider the obligations of the parties and the effect of the Commonwealth legislation on the court's ability to compel disclosure.
The court held that the plaintiff was not entitled to a mandatory injunction to compel the defendant to disclose information held by the Commonwealth authority. The court found that the plaintiff had an obligation not to impede the court in deciding issues and that the Commonwealth legislation precluded the court from granting the injunction. The court emphasised that the plaintiff's entitlement to information was not absolute and that the court must balance the plaintiff's rights against the obligations of the defendant and the Commonwealth authority. The court also noted that the Commonwealth legislation sought to protect the authority from all subpoenas, including those issued by the court, and that this precluded the court from granting the injunction.
The court dismissed the plaintiff's application for a mandatory injunction. The court did not make any orders for costs.
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