FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stopford Malloy & Malloy (No 2) [2022] FedCFamC1F 118
File number(s): ADC 2595 of 2015 Judgment of: HARPER J Date of judgment: 8 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – subpoenas – when subpoena to produce issued to services Australia seeking production of records or information held by Centrelink – when Services Australia seeks to set aside subpoena on the basis of statutory prohibitions on production – whether officers of Centrelink have in their possession documents or notice of information “because of” the performance or exercise of his or her duties, functions or powers under various federal statutes – whether “person” includes “court” in federal social security laws – whether documents or information provided to Centrelink should be protected from production to the Court – whether s 201 and s 207 of the Social Security (Administration) Act 1999 (Cth) permits or prohibits disclosure to the Court – objection to subpoena upheld Legislation: Australian Constitution s 77(iii)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 3, 161, 167
Acts Interpretation Act 1901 (Cth) s 2C
Child Support (Assessment) Act 1989 (Cth) ss 99, 150(5)
Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 25, 30(1)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 2
Income Tax Assessment Act 1936 (Cth) s 16(2)
Income Tax and Social Services Contribution Assessment Act 1936 (Cth)
Judiciary Act 1903 (Cth) s 39(2)
Social Security (Administration) Act 1999 (Cth) ss 15AA, 201, 207
Student Assistance Act 1973 (Cth) s 354
Civil Procedure Act 2005 (NSW) s 56
Surveillance Devices Act 2007 (NSW) s 40(1)
Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) s 182
Cases cited: Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1; [1953] ALR 603
Commissioner of Taxation v Nestle Australia Ltd (1986) 69 ALR 445;
El-Helou v Smith [2009] NSWSC 741
Field & Kingston (No 3) [2019] FamCA 299
Forge v Australian Securities and Investments Commission (ASIC) (2006) 228 CLR 45; [2006] HCA 44
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Heath (a Pseudonym) v The Queen (2014) 45 VR 154; [2014] VSCA 319
Hocking v Director-General of the National Archives of Australia (2020) 379 ALR 395; [2020] HCA 19
Kizon v Palmer (1997) 142 ALR 488;
Magomu v Minister for Immigration and Border Protection [2018] FCCA 1290
Merkuloff v Yalisheff [2003] NSWSC 1183
National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372
Papadopoulos & Papadopoulos (No 2) [2007] FamCA 1683
Rochfort v Trade Practices Commission (1982) 153 CLR 134; [1982] HCA 66
Stopford Malloy & Malloy and Ors (No 2) [2016] FamCA 1087
Stopford Malloy & Malloy and Ors [2016] FamCA 748
Tahana v Hines [2021] NSWSC 564
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- Case
- [2022] FedCFamC1F 118
- Decision Date
CaseChat Overview and Summary
The court held that the objection to the subpoena should be upheld. The court noted that the wife had pointed to section 201 of the Administration Act, which provides that nothing in the Act prevents a person from disclosing information to another person if the information is disclosed for the purposes of the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989. However, the court held that the exceptions which allow production or disclosure by one "person" to another, do not permit disclosure to a court, because a court is not "a person". The court noted that there is long standing authority across all Australian jurisdictions that a statutory prohibition on officers divulging information to "a person" does not extend to a court, because a court is not "a person".
Accordingly, the court held that the objection to the subpoena should be upheld. The court set aside the subpoena issued on 7 July 2021 by the applicant and made no order as to the costs of the determination of the objection.
This decision is important for parties involved in family law proceedings who seek to obtain information from Centrelink, as it highlights the limitations on the disclosure of such information and the importance of considering the relevant statutory provisions. It also reinforces the principle that a court is not a "person" for the purposes of statutory prohibitions on the disclosure of information.
Orders
Orders of the court
ADC 2595 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS STOPFORD MALLOY
Applicant
AND:
SERVICES AUSTRALIA
Objector
ORDER MADE BY:
HARPER J
DATE OF ORDER:
8 MARCH 2022
THE COURT ORDERS THAT:
1. The subpoena issued on 7 July 2021 by the Applicant Wife addressed to the Proper Officer, Services Australia be set aside.
2. There be no order as to the costs of the determination of the objection to subpoena issued on 7 July 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
However, the wife points to s 201 of the Administration Act which provides:201 Operation of Division(1) Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989.(2) The provisions of this Division that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982. The wife argues s 201 creates an area of exception to the otherwise broad prohibition in s 207. She accepted that if she cannot take the benefit of s 201, s 207 would relieve Services Australia from any obligation to comply with the subpoena. Services Australia contends first that the production sought is not primarily or solely "for the purposes of" the Assessment Act. I have already rejected this argument. Services Australia's further argument, which would be applicable to each of the statutory prohibitions on production or disclosure to a "court", is that the exceptions which allow production or disclosure by one "person" to another, do not permit disclosure to a court, because a court is not "a person". As Services Australia pointed out, there is long standing authority across all Australian jurisdictions that a statutory prohibition on officers divulging information to "a person" does not extend to a court, because a court is not "a person". In Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6, Dixon CJ expressed the view that a prohibition in the Income Tax and Social Services Contribution Assessment Act 1936 (Cth), on an officer divulging information to "a person", did not encompass divulging information to a court. This has been followed many times. In Commissioner of Taxation v Nestle Australia Ltd (1986) 69 ALR 445, the Full Court of the Federal Court (Bowen CJ, Lockhart and Sheppard JJ) considered the effect of s 16(2) of the Income Tax Assessment Act 1936 (Cth), which prohibited an officer divulging or communicating protected information "to any person", holding this prohibition "plainly could not apply to a court": at [262]. In Kizon v Palmer (1997) 142 ALR 488 ("Kizon") at [505], Lindgren J (Jenkinson and Kiefel JJ agreeing) said, "The word 'person' does not, in ordinary English usage, refer to a court. A court is not an individual. A court is not a body politic". In Voitenko v Zurich Australian Insurance Ltd [2016] NSWSC 324 at [93], Hall J held that a prohibition in s 40(1) of the Surveillance Devices Act 2007 (NSW) on "a person" divulging protected information does not include a court, although it should be noted that s 40(3) of that Act, provides that the prohibition does not apply to information "disclosed in proceedings in open court" or in the public domain. In Heath (a Pseudonym) v The Queen (2014) 45 VR 154 at [34]–[41], the Victorian Court of Appeal applied Kizon in construing the reference to a "person" in s 182 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), prohibiting a person from publishing any evidence given in the Victorian Supreme Court in high risk offender applications, not to include a court.