Abrook & Ors v Paterson & Ors [1995] FCA 694

CATCHWORDS

PRACTICE AND PROCEDURE - subpoena - whether party prohibited by terms of statute from compliance - terms of statute Subpoena - See above Securities Industry Act 1976 (NSW) Telephonic Communications (Interception) Act 1960 (Cth) Telecommunications (Interception) Act 1979 (Cth) Trade Commission Act 1985 (Cth) Queensland Office of Financial Supervision Act 1992 (Qld) Trade Practices Act 1974 (Cth) Friendly Societies Act 1991 (Qld) Rochfort v Trade Practices Commission 91982) 153 CLR 134 Lloyd's Ships Holdings Pty Ltd v Davros Pty Ltd (1985) 11 FCR 287 Graylor Pty Ltd v Chapple [1991] 2 QdR 26 Parkes Management Ltd v Perpetual Trustee Co Ltd [1979] 1 NSWLR 274 Miller v Miller (1978) 141 CLR 269 Hilton v Wells (1985) 157 CLR 57 ROBERT & LORNA ABROOK & ORS Applicants - and - GREGORY PATERSON & ORS Respondents O'LOUGHLIN J. ADELAIDE 24 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) No: SG30 of 1995 ) GENERAL DIVISION ) B E T W E N: ROBERT & LORNA ABROOK & ORS Applicants - and - GREGORY PATERSON & ORS Respondents MINUTES OF ORDER

JUDGE MAKING ORDER : O'LOUGHLIN J. WHERE MADE : ADELAIDE DATE OF ORDER : 24 AUGUST 1995 THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant on the motion file and serve its submissions on costs by 31 August 1995 and that the respondents file and serve their submissions by 7 September 1995. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) No: SG30 of 1995 ) GENERAL DIVISION ) B E T W E N: ROBERT & LORNA ABROOK & ORS Applicants - and - GREGORY PATERSON & ORS Respondents

REASONS FOR JUDGMENT

Coram: O'Loughlin J. Place: Adelaide Date: 24 August 1995 Stephen James Maitland ("Mr Maitland"), the Chief Executive Officer of the Queensland Office of Financial Supervision ("QOFS") has moved the court on motion for an order that a subpoena issued on 8 August 1995, directed to "The Chief Executive Officer, Queensland Office of Financial Supervision", be set aside. The primary ground advanced in support of the order sought was that both QOFS and its CEO are prohibited by statute, namely, s8.11 of the Friendly Societies Act 1991 (Qld), under penal sanction, from giving the evidence that is sought to be adduced and from producing the documents that are sought to be produced; a further argument that the evidence would be protected from disclosure by public interest immunity was not pursued. It was raised, during the course of submissions, that the subpoena ought to have been directed to the corporate body, QOFS: Rochfort v Trade Practices Commission (1982) 153 CLR 134. But as no point was taken that the subpoena was defected on this ground I will not pursue the matter. Section 8.11 of the Friendly Societies Act 1991 is in the following terms: "8.11(1) A person who is, or has been, appointed or engaged under this Act (an 'official') must not, other than under this Act - (a) make a record of information disclosed to, or obtained by, the person as an official ('protected information'); or (b) whether directly or indirectly, divulge or communicate protected information about a person to someone else; or (c) otherwise make use of the protected information. Maximum penalty - 50 penalty units or imprisonment for 6 months. (3) Nothing in subsection (1) precludes an official from - (a) producing a document to a court in the course of criminal proceedings or proceedings under this Act or from divulging or communicating to a court in the course of such proceedings any matter or thing coming under his or her notice as an official; or (b) producing a document or communicating any information gained by or conveyed to him or her - (i) to the Minister or a person acting for the Minister (whether the official produces the document or communicates the information under section 12.21A or otherwise); or (ii)to the Registrar, or an investigator appointed under this Act; or (iii) in accordance with a reciprocal arrangement under section 12.21; or (iv)to a police officer exercising functions as such; or