Sklavos v Australasian College of Dermatologists

In the Federal Court of Australia, the applicant, Dr Angelo Sklavos, sought orders that subpoenas issued by the respondent, the Australasian College of Dermatologists, be set aside. The subpoenas were addressed to 11 dermatologists and sought documents, including income tax returns, for the financial years from 2010/2011 to date. The dermatologists sought to have the subpoenas set aside on the basis that the documents were confidential and of marginal and speculative relevance to the proceeding. Dr Satchell also contended that the subpoena addressed to him constituted an abuse of process by subverting the scheme established by the Taxation Administration Act 1953 (Cth). The Court was required to determine whether the subpoenas had been issued for the purpose of litigation and had apparent relevance to the issues in the litigation. The Court was also required to determine whether the subpoenas constituted an abuse of process.

The Court held that the test of apparent relevance was satisfied because the documents disclosing the income and expenditure of any dermatologist in Sydney may be relevant to Dr Sklavos’ case in a manner which was not unreal, fanciful or speculative. The Court held that the subpoenas did not constitute an abuse of process because there was no particular public interest engaged other than the understandable interest of people not to have their private financial affairs disclosed to anyone not of their choosing. The Court held that the purpose of the Taxation Administration Act was to prevent disclosure of taxation information by or as derived from the ATO, and not to prevent a person requiring relevant material for litigation from seeking to obtain such information directly from the person in question. The Court held that contrary to the submissions for Dr Satchell, this was not a case of the legislature not having turned its mind to every possible abuse of process, but a case where the alleged abuse of process was based on an over-expansive view of the legislative purpose.

The Court ordered that the interlocutory applications be dismissed and that the subpoenas be returnable before the Court on 27 May 2014. The Court also ordered that liberty be granted to Dr Andrew Satchell to uplift the documents produced to the Court, in answer to the subpoena. The Court further noted that if a suitable confidentiality regime could not be agreed, then it would impose such a regime.