Stopford Malloy & Malloy (No 2)

[2022] FedCFamC1F 118

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

Voitenko v Zurich Australian Insurance Ltd [2016] NSWSC 324

Wray v Wray [2007] NSWSC 164

Division:

Division 1 First Instance

Number of paragraphs:

59

Date of last submission/s:

14 January 2022

Date of hearing:

On the papers

Place:

Sydney

Counsel for the Applicant:

Mr Wells QC

Solicitor for the Applicant:

Piper Alderman

Solicitor for the Objector:

Sparke Helmore Lawyers

ORDERS

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.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Stopford Malloy & Malloy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HARPER J:

INTRODUCTION

1. These proceedings have a long and tortured history, which it is unnecessary to recite for the purposes of this judgment. The history has been detailed in a number of earlier judgments: see Stopford Malloy & Malloy and Ors [2016] FamCA 748; Stopford Malloy & Malloy and Ors (No 2) [2016] FamCA 1087.

2. The proceedings are listed for final hearing to commence on 9 May 2022.

3. On 7 July 2021, the wife issued a subpoena to the Proper Officer, Services Australia, seeking production of documents relating to the Husband's application for, and eventual receipt of, social security payments (Centrelink and JobSeeker). Services Australia filed a Notice of Objection on 31 August 2021. This judgment deals only with that objection.

4. Thereafter, orders were made by consent for the objection to be dealt with by the limited evidence and written submissions in chambers. Submissions were received up to 14 January 2022, after which judgment was reserved.

5. The subpoena is directed to "the Proper Officer, Subpoena Team, Services Australia". Subpoenas addressed to the "Proper Officer" of a corporate entity has long been recognised as appropriate: Rochfort v Trade Practices Commission (1982) 153 CLR 134 at [146].

6. The schedule to the subpoena specifies the following documents for production:

   1. A copy of the Subpoena;

   2. for the period 1 January 2019 to 30 June 2021, in relation to [Mr Malloy] (date of birth … 1969) records recording or relating to:

   2.1 inquiries made by him or his servants or agents (including accountants) to Centrelink;

   2.2 his income and assets and financial circumstances generally provided to Centrelink;

   2.3 any record of or response to those inquiries or the information provided.

7. No documents have been produced.

8. Services Australia objects to production and seeks an order for the subpoena to be set aside, although no formal application to set aside the subpoena has been made. Services Australia made clear in its submissions that it sought to set aside the subpoena.

9. It was not argued by Services Australia, or any of the respondents, that the subpoena did not have a legitimate forensic purpose, or that documents sought in the subpoena did not have "apparent relevance".  This is, stated shortly, the test at the production stage, for documents sought under subpoena: see eg Papadopoulos & Papadopoulos (No 2) [2007] FamCA 1683 at [49]–[52].

10. I accept the documents sought have apparent relevance because the wife makes detailed claims that the husband has access to assets and financial resources, through companies associated with his father, as part of a broad claim for property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act"). The wife also seeks child support departure orders under the Child Support (Assessment) Act 1989 (Cth) ("Assessment Act"). The documents created or relied upon by the husband in applying for Centrelink or Jobkeeper benefits may bear on the husband's financial circumstances, including the possibility that the husband made admissions in such documents.

11. Rather, Services Australia nominates four federal statutes, each of which it argues prohibits production of documents to this Court, as follows:

    The Agency objects to the production of all of the documents sought under the subpoena to produce filed on 7 July 2021 and served upon it by the Applicant on 19 July 2021 (subpoena). The objection is made on the basis that the Agency is prohibited from disclosing the documents to the Court by operation of s 207 of the Social Security (Administration) Act 1999 (Cth) (Administration Act), s 167 of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (FA (Admin) Act), s 354 of the Student Assistance Act 1973 (Cth), and s 150(5) of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).

    (Emphasis in original)

12. It is convenient to deal with each statute in turn. I will adopt the shorthand references given by Services Australia at [11] above. Most of the wife's submissions were directed to s 207 of the Administration Act, but I will begin with the Student Assistance Act 1973 (Cth) ("Student Assistance Act").

    THE STUDENT ASSISTANCE ACT 1973 (CTH)

13. Section 354 of the Student Assistance Act is in the following terms:

    An officer must not, except for the purposes of this Act, be required:

    (a)  to produce any document in his or her possession; or

    (b)  to disclose any matter or thing of which he or she had notice;

    because of the performance or exercise of his or her duties, functions or powers under this Act to:

    (c)  a court; or

    (d)  any of the following:

    (i)  a tribunal; or

    (ii)  an authority; or

    (iii)  a person;

    that has power to require the production of documents or the answering of questions.

14. The prohibition on production or disclosure in s 354 is broadly stated. There is no express escape from the prohibition, other than the force of the clause "except for the purposes of this Act".

15. The prohibition applies only to an "officer". The term "officer" is defined in s 3 as follows:

    “officer” means a person performing duties, or exercising powers or functions, under or in relation to this Act and, in relation to a provision of Division 3 of Part 10, includes:

    (a)  a person who has been such a person; and

    (b)  a person who is or has been appointed or employed by the Commonwealth and who, as a result of that appointment or employment, may acquire or has acquired information concerning a person under this Act; and

    (c)  a person who, although not appointed or employed by the Commonwealth, performs or did perform services for the Commonwealth and who, as a result of performing those services, may acquire or has acquired information concerning a person under this Act.

16. There is no reason to conclude that the production sought by the wife, pursuant to the subpoena, is for any purpose relating to the Student Assistance Act. Broadly stated, the Student Assistance Act is connected with federal government financial support for students, including student loans. The statute has no role to play in these proceedings. That suggests, construing the text of s 354 purposively, that the production sought in these proceedings is not "for the purposes of" the Student Assistance Act, and the exception to the prohibition on production is not engaged.

17. The subpoena is addressed to the "Proper Officer, Centrelink", which I assume means an "officer" as defined in s 3, set out at [15] above.

18. Services Australia submitted, and I infer, that officers of Centrelink discharge functions and duties under a range of federal statutes, including "social security law or related portfolio laws". The same person may be performing duties, or exercising powers or functions, under, or in relation to, a number of different federal statutes, some of which have no application to court proceedings in which a subpoena is issued. The obvious purpose of a provision such as s 354, or the other provision relied upon by Services Australia, is to protect certain information provided by members of the public to the staff of various federal government agencies. But an officer of Centrelink may receive such information from a person while performing duties, or exercising powers or functions, under or in relation to one federal statute, and the same information may be relevant to another federal statute under which the same officer is performing duties, or exercising powers or functions.

19. The critical question is whether the officer comes into possession of such information "because of" the performance or exercise of his or her duties, functions, or powers "under" the Student Assessment Act. This causative phrase conditions the engagement of what is a specific prohibition. Properly construed, in my view, this means that if an officer comes into possession of information "because of" his or her performance of duties and functions under one statute, such as the Assessment Act, a prohibition in a different statute, such as the Student Assistance Act, is not thereby automatically engaged.

20. Here, the husband provided information to officers of Centrelink. However, since it seems clear the Student Assistance Act had nothing to do with the reasons why he provided the information to Centrelink, it could not be said an officer of Centrelink came into possession or notice of it "because of" the performance of any duties, functions or powers under that statute. Consequently, the prohibition in s 354 does not apply.

    THE CHILD SUPPORT (ASSESSMENT) ACT 1989 (CTH)

21. Section 150(5) of the Assessment Act is in the following terms:

    (5) A person to whom this section applies is not required:

    (a)  to communicate protected information to a court; or

    (b)  to produce a protected document in court;

    except where it is necessary to do so for the purposes of this Act.

22. The definition of "a person to whom this section applies" in s 150(1) includes relevantly, a person "appointed or employed by, or a provider of services for, the Commonwealth", which I assume includes an officer of Centrelink.

23. Section 150(1) also defines "protected information" as:

    (a)  information that:

    (i)  concerns a person; and

    (ii)  is disclosed to or obtained by another person in the course of, or because of, the other person’s duties under or in relation to this Act; or

    (b)  information to which paragraph (a) applied that is communicated to a person in circumstances authorised by this section.

    And a “protected document” as:

    (a)  a document that:

    (i)  contains information that concerns a person; and

    (ii)  is obtained or made by another person in the course of, or because of, the other person's duties under or in relation to this Act; or

    (b)  a document to which paragraph (a) applied that is communicated to a person in circumstances authorised by this section.

24. I accept the information and documents sought in the subpoena constitute "protected information" and "protected documents". The question is whether their production is "necessary for the purposes of" the Assessment Act.

25. No submissions were made suggesting there is any significance in the slightly different wording of s 150(5)(a) "to a court" and s 150(5)(b) "in a court".

26. Services Australia argued that the production sought is not primarily or solely "for the purposes of" the Assessment Act, so the exception to the prohibition on production does not apply.

27. The wife submitted that the "purposes" of the Assessment Act are broad, and can be found, for example, in the provisions of Part 7, Divisions 4 and 5. These disclose an intention that the administrative assessment of child support by the registrar needs to be supplemented or complemented by other types of child support provisioning, and by determinations made by Court processes, directed at a "consideration of the income, earning capacity, property and financial resources of the parents".

28. I accept this submission. It is plainly among the purposes of the Assessment Act to create administrative processes for the swift assessment of claims for child support, but also to confer jurisdiction on certain courts to use their processes to substitute curial orders for administrative determination in certain circumstances.

29. Construing the text of s 150 in its ordinary meaning, context and purpose, there is no warrant to qualify the wording of s 150(5) by implication or insertion of a "primary" or "sole" purpose test. That is an impermissible gloss upon the statute, introducing limitations or qualifications absent from the express text as informed by its context and the statute as a whole. The simple question is whether production is sought "for the purposes of" the Assessment Act.

30. As already mentioned, the wife seeks child support departure orders as part of her relief. Such orders are made in the exercise of jurisdiction under Divisions 4 or 5 of Part 7 of the Assessment Act. The subpoena seeks production of documents for the purposes of the exercise of jurisdiction to make departure orders. In my view, this is production for the purposes of the Assessment Act. Consequently, the exception to s 150(5) applies, and the subpoena is not objectionable by reason of the prohibition on production or disclosure in s 150(5).

31. This leads to a further matter, which was not the subject of any argument, and arises out of recent amendments made to the Assessment Act. The submissions of the parties assume this Court has jurisdiction to make orders under the Assessment Act. On 1 September 2021 the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the new Act") commenced. Section 8 continues the existence of the Family Court of Australia, but under the name "The Federal Circuit and Family Court of Australia (Division 1)" ("Division 1"). The Federal Circuit Court of Australia is also continued in existence by s 8, but under the name "The Federal Circuit and Family Court of Australia (Division 2)" ("Division 2"). Division 1 and Division 2 are entirely separate Courts, albeit constituted by the same statute. Division 1 exercises the original jurisdiction specified in s 25 of the new Act, which includes jurisdiction conferred by other statutes. Section 99 of the Assessment Act was amended by Item 163 of Schedule 2 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth). Schedule 2 commenced on 1 September 2021. The new version of s 99 confers jurisdiction on Division 2 alone. Division 1, or the Family Court, is no longer mentioned. It appears there is now no jurisdictional basis for this Court to make orders under the Assessment Act. However, in the absence of argument, and on the view I take on the basis of the other submissions of the parties, it is unnecessary here to express a concluded view.

    A NEW TAX SYSTEM (FAMILY ASSISTANCE) (ADMINISTRATION ACT) 1999 (CTH)

32. Services Australia next relied upon s 167 of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ("FA (Admin) Act"). This section is materially similar to s 150(5) of the Assessment Act, in that it prohibits production of documents in the possession of a person "because of" the performance or exercise of his or her duties, functions or powers under "the family assistance law".

33. The "family assistance law" is defined in s 3 to mean one or more of the following:

    (a) this Act;

    (b) the Family Assistance Act;

    (c) any instrument (including regulations) made under this Act or the Family Assistance Act;

    (d) Schedules 5 and 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000.

34. There is no evidence to show information or documents came into the possession of a Centrelink officer "because of" the performance or exercise of his or her duties, functions or powers under the family assistance law.  Therefore for the reason given above at [19] and [20], the prohibition does not apply.

35. Moreover, s 161 further provides:

    (1)  Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of:

    (a) the Child Support (Assessment) Act 1989; or

    (b) the Child Support (Registration and Collection) Act 1988.

36. For the same reasons given above at [26]–[30], the exception to the prohibition on production in s 161(1)(a) applies.

    SOCIAL SECURITY (ADMINISTRATION) ACT 1999 (CTH) (“THE ADMINISTRATION ACT”)

1. The majority of the parties' submissions were directed to s 207 of the Administration Act which falls within Division 3 of Part 5, dealing with information management. It is in the following terms:

   Protection of certain documents etc. from production to court etc.

   An officer must not, except for the purposes of the social security law or the Royal Commissions Act 1902, be required:

   (a)  to produce any document in his or her possession; or

   (b)  to disclose any matter or thing of which he or she had notice;

   because of the performance or exercise of his or her duties, functions or powers under the social security law to:

   (c)  a court; or

   (d)  a tribunal; or

   (e)  an authority; or

   (f)  a person;

   having power to require the production of documents or the answering of questions.

2. It can be seen that production and disclosure are distinguished as different processes between s 207(a) and (b).

3. The expression "social security law" in s 207 is not defined in the Administration Act.

4. However, it was not in dispute that the husband had made application to Centrelink for Jobseeker payments. I infer an officer of Centrelink has documents or information from the husband, through the officer's performance or exercising of their duties, functions or powers under a social security law, being the law relating to Jobseeker payments.

5. There is authority from different courts, including this Court, to the effect that s 207 protects an essential right to privacy. Documents held by officers of Centrelink, because of the Assessment Act, are not amenable to production by subpoena: Magomu v Minister for Immigration and Border Protection [2018] FCCA 1290 at [20] (Federal Circuit Court of Australia); Field & Kingston (No 3) [2019] FamCA 299 ("Field") at [39] (this Court) and Tahana v Hines [2021] NSWSC 564 ("Tahana") at [41] (Supreme Court of NSW).

6. 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.

7. 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.

8. 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.

9. 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".

10. 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.

11. All authorities above at [46] held a "person" is not a court, so prohibitions on a "person" divulging protected information to another "person", did not prevent production or disclosure to a court. Here, s 207 expressly prohibits production or disclosure to a "court". Consequently, Services Australia is arguing that an exception to a prohibition which permits protected information to be produced or disclosed to "a person" for specific statutory purposes, cannot extend to producing or disclosing information to a court.

12. I accept the submissions of Services Australia in this respect for the following reasons.

13. Section 2C of the Acts Interpretation Act 1901 (Cth) provides that references to "person" in federal legislation "include a body politic or corporate as well as an individual". This is an inclusive not an exhaustive definition. It shows the meaning of "person" in federal statutes goes beyond natural individuals, to include at least political and corporate entities, which are regularly understood as separate legal "persons". For example, the High Court has recently confirmed that the Commonwealth as a "body politic" is a distinct legal entity called into existence upon the proclamation of the Constitution: Hocking v Director-General of the National Archives of Australia (2020) 379 ALR 395 at [75].

14. But when it comes to construing the proper meaning of "court" in s 207, it is important to take account of the distinction between the Court as an institution and the persons who comprise it. Their institutional character distinguishes courts from legally recognised entities. Division 1 is a federal superior court created under Chapter III of the Constitution. Section 30(1) of the new Act provides that the original jurisdiction of the Court is exercised "by the Court constituted by a single Judge". Judges of this Court are individual natural persons. Algorithms have not yet replaced its judicial officers. But this does not mean the Court is a "person" as opposed to an institution. In Harris v Caladine (1991) 172 CLR 84 at [92], Mason CJ and Deane J held that "court" in s 77(iii) of Chapter III of the Constitution means "a court as an institution", being "an organisation for the administration of justice, consisting of judges and with ministerial officers having specified functions". Since Forge v Australian Securities and Investments Commission (ASIC) (2006) 228 CLR 45, the expression "court of a State" in s 77(iii) of the Constitution and "Courts of the States" in s 39(2) of the Judiciary Act 1903 (Cth) refer to a court "as an institution".

15. I agree that in light of the authorities referred to above at [46], consistency of statutory construction leads to the conclusion that a court should not be taken to be as a "person" for the purposes of s 201. This conclusion can be reached separately on the basis of, and is supported by, the text of s 207. Like s 354(c) and (d)(iii) of the Student Assistance Act, s 207(c) and (f) of the Administration Act specifically in their terms distinguished between a "court" and a "person". If "person" included "court", s 207(c) would be superfluous.

16. Furthermore, s 15AA requires the Court to prefer the interpretation of a federal statute which best achieves the purpose or object of the Act. The object of Division 3 of Part 5 is clearly the protection of confidentiality, by prohibiting both production of documents and disclosure of other information. Again, if "person" included "court" this broad objective would be defeated.

17. Consistent with the High Court authorities, and in light of the distinction drawn in s 207 between a "person" and a "court", I conclude the legislature intended "court" to refer to the Court as an institution, and to be distinguished from a "person". Section 201 therefore does not apply, and s 207(a) and (c) together prohibit production of documents or disclosure of information such as sought in the subpoena issued to Services Australia. For this reason the subpoena should be set aside.

18. Senior counsel for the wife sought to avoid the consequences of construing "court" to mean the Court as an institution, by arguing that a person does not produce documents to a court by simply producing them to the custody of the Court in compliance with a subpoena. He argued that disclosure to the Court only happens if at trial, documents produced on subpoena are tendered and received in evidence, relying on the three steps set out in the well known decision in National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372 ("Waind").

19. I do not accept this argument. The decision in Waind does not support it. The first step to comply with a subpoena, referred to in Waind, is to bring documents to the Court and to allow resolution of any objections by "production to the Court". It is the third step which relates to the admission into evidence of documents.

20. But more than this, the argument is undermined by the text of both s 207(a) and (b) and s 201. As already pointed out, s 207(a) specifically prohibits production of documents, while s 207(b) prohibits disclosure. They are related but distinct procedures. Section 201 only permits disclosure by a "person" to a "person". The wife's argument requires the verb "disclose" in s 201 to be construed to encompass "produce" or production of documents, in other words, to have a broader meaning than its use in s 207(b), where it is distinguished from "produce" in s 207(a). I am dubious about this argument. However, disclosure of information can obviously take place by the production of documents. But this observation tends to confirm the conclusion that "person" in s 201 does not include a "court". A subpoena for production is essentially about production of documents under compulsion. Section 207(a), when construed with s 207(c), is properly understood as directed to a prohibition on production to a court under the compulsion of a subpoena. So, even if s 201 otherwise permitted disclosure, s 207(a) still prohibits production. For this reason, the subpoena to produce should be set aside.

21. I note in passing that in other jurisdictions orders in the nature of injunctions have been made, compelling parties to proceedings to execute the necessary authorities, or take the necessary steps to obtain production of documents or information that relates to them held by Centrelink: eg Merkuloff v Yalisheff [2003] NSWSC 1183; Wray v Wray [2007] NSWSC 164. This is a form of relief separate from the use of a subpoena directed to an officer of Centrelink or other third party, and compels the parties to the proceedings to procure information for the purposes of disclosure. Legislation dealing with matters of civil procedure, such as s 56 of the Civil Procedure Act 2005 (NSW), in particular, have been held to provide such a power: El-Helou v Smith [2009] NSWSC 741 ("El-Helou") at [5]; Tahana at [25]-[38]. I note that in Field, Hannam J declined to make a similar sort of order. Hannam J held in the circumstances of that case, that the order would have been futile. Since the decision in Field, Part 6, Division 4 of the new Act, particularly s 69, grants to this Court extensive case management powers, which are similar to those considered in El-Helou and Tahana. However, I am not asked to make any injunctive orders, and I say no more about it.

22. The objection to the subpoena to Services Australia is upheld. The subpoena will be set aside.

23. I will make no order as to costs of determining the objection to the subpoena. Although Services Australia may have succeeded overall, it succeeded on one basis only of the many it put forward. Taking account of the matters in ss 117(1), 117(2) and 117(2A) there should be no order as to costs.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       8 March 2022