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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2003] NSWSC 1183
Decision Date: 8 December 2003

CaseChat Overview and Summary

In the case of Merkuloff v Yalisheff, the plaintiff sought a mandatory injunction to compel the defendant to provide information held by the Commonwealth authority. The dispute arose in the Federal Court of Australia. The plaintiff argued that the defendant held information that was necessary for the resolution of the proceedings and sought to compel the defendant to disclose this information despite the Commonwealth legislation that sought to protect the authority from all subpoenas.

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.

Orders