Malubel Pty Ltd & Anor v Wendy Elder & ors [1997] FCA 1309 (11 November 1997)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 898 of 1997

BETWEEN:	MALUBEL PTY LTD & anor Applicants
AND:	WENDY ELDER & ORS Respondents
JUDGE:	MOORE J
DATE OF ORDER:	11 NOVEMBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The second and third respondents be excused from producing documents in response to the notices to produce dated 4 November 1997.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 898 of 1997

BETWEEN:	MALUBEL PTY LTD & anor Applicants
AND:	WENDY ELDER & ORS Respondents

JUDGE:	MOORE J
DATE:	11 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Delivered ex tempore)

I am satisfied that the provisions of s 51(3) of the National Crime Authority Act 1984 ("the Act") have application to the notices to produce that have been directed to Mr Whinfield and Mr Gardner. In summary, my reasons for so concluding are that the purpose of s 51, as I read the Act, is to provide a measure of secrecy for documents that come into the possession of those who are carrying out investigative and other functions for the National Crime Authority. A class of people who might undertake those tasks is identified in s 49.

I am satisfied that as a matter of fact both Mr Whinfield and Mr Gardner are members of the Australian Federal Police. I am also satisfied as a matter of fact that their services are presently being used by the National Crime Authority for the functions to which I just referred. Accordingly, I am satisfied as a matter of fact that they are members of the Australian Federal Police whose services are made available to the Authority. Those facts having been established, it is my view that s 49 operates so as to make them members of the staff of the Authority, as defined in s 4, and thus persons on whom s 51 is intended to operate.

The argument that there is no evidence of any instrument having been created of the type referred to in s 33(5) of the Australian Federal Police Act 1979 does not, in my view, advance the applicants' argument a great deal. First, I entertain real doubts as to whether the creation of such a document is a condition precedent to the secondment of a member of the Australian Federal Police to an organisation or body of the type referred to in s 33. If I am wrong and it is a condition precedent to the lawful secondment of a member of the Australian Federal Police under s 33, it does not alter what I view is the intended scope of s 51, as I have just discussed it.

It is for those reasons I propose to make orders in terms of the notice of motion, namely that the second and third respondents be excused from producing documents in response to the notices to produce dated 4 November 1997.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated: 11 November 1997

Counsel for the Applicant:	Mr D B McGovern with Mr L J Aitken
Solicitor for the Applicant:	Giles Payne & Co
Counsel for the Respondent:	Mr D J Fagan SC & Mr MA Wigney
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 November 1997
Date of Judgment:	11 November 1997