Federal Court of Australia

Elks, in the matter of Moreton Resources Limited (Receivers Appointed) [2025] FCA 1695

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 24.01 of the Federal Court Rules 2011 (Cth) leave be granted to the “CBP Parties” to issue a Subpoena to produce documents directed to “The proper officer of the Legal Practitioners’ Admissions Board” (Subpoena).

2.    Leave be granted to all of the parties and interested persons (and their lawyers) to inspect and copy the documents produced in accordance with the Subpoena.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

introduction

1    An issue has arisen in these proceedings regarding the content of the Court Book (or tender bundle) and material before the Court on these applications to set aside or discharge the examination summons.

2    The issue arises in the following way. There are certain affidavits that have been provided in the Court Book. Those are identified at tab 71B and also at tabs 3, 6, 7, 9, 11, 12, and 14. The affidavits in that form are not pressed to be included in the Court Book, such that those affidavits have been struck through for the purposes of the substantive hearing. That is, those affidavits will not form part of the Court Book.

3    However, that issue was only raised on 9 June 2025, being just a couple of days prior to the hearing. In response to the issue being raised, the CBP Parties seek leave to issue a subpoena to produce documents to the proper officer of the Legal Practitioners Admissions Board. This subpoena seeks what are described as a limited number of official letters and/or recommendations from the Legal Practitioners Admissions Board, addressed to the Registrar of the Supreme Court. For the avoidance of doubt, the subpoena also clarifies that administrative or formal matters, and any materials relating to a right to information request, are not included. It is submitted that as such, the number of documents sought to be obtained in relation to this subpoena is of narrow compass.

legal principles

4    Mr Elks’ counsel makes submissions, however, that those documents are subject to the principle in Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304 (Lord Diplock), 309 (Lord Keith of Kinkel), 319-320 (Lord Scarman and Lord Simon of Glaisdale) and 321 (Lord Roskill) and, in that respect, relies on the statement of principle in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [96] in relation to the documents to which that implied undertaking applies to resist the issuing of the subpoena.

5    In Hearne, Hayne, Heydon and Crennan JJ stated at [96]:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits…

(footnotes omitted)

6    Although it is called an implied undertaking, as has been made clear by a number of authorities, it is a substantive rule: Hearne at [3] and [105]-[108]. Submissions were also made regarding the decision of his Honour Justice Derrington in the matter of Woods, in the matter of T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220, where three affidavits were sought to be relied on in proceedings in the Federal Circuit and Family Court of Australia. His Honour held that those affidavits were not the subject of the implied undertaking and hence leave was not required to rely on them.

7    In Woods, Derrington J draws a distinction between applications which are brought in the Court and supported by an affidavit, even where the rules require an affidavit to support the application, and affidavits which are filed by compulsion. It was relevant to this consideration whether the application being made, which was to be supported by an affidavit (by the rules), was an application voluntarily made. His Honour held that should an affidavit be filed voluntarily, then the implied undertaking would not apply: Woods at [8]. Derrington J explained, after referring to the principle from Hearne, how the rationale for the implied undertaking is a need to limit the invasion of privacy where a party is compelled to disclose documents or information: Woods at [18].

8    The other decision relied on in the course of submissions was the Full Court’s decision in Commonwealth of Australia v De Pyle [2024] FCAFC 43 (O’Callaghan, Raper and Button JJ), where their Honours referred to matters for which suppression orders were sought but some of which was already in the public domain. In so far as such material was in the public domain, a suppression order would have lacked utility. However, there was also material which was agreed was not in the public domain and for which suppression orders were necessary (at [59]).

consIderation

9    First, the 13 March 2024 letter (or other letters the subject of the subpoena) were not compulsorily acquired by a process of discovery or disclosure or by some other compulsory process. As such, the Harman principle would not apply.

10    Secondly, the affidavit material relied on shows that there is at least one affidavit of Mr Elks, which contains the letter dated 13 March 2024, which is in the public domain. For these two reasons, the Harman principle would not apply in relation to the 13 March 2024 letter, it being publicly available as deposed: Haswell v Commonwealth of Australia [2020] FCA 915 at [18]-[20] (Lee J); Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (2020) 282 FCR 226; [2020] FCAFC 226 at [79]-[80], [83] and [85] (Jagot, Markovic and Thawley JJ). It is apparent from the Supreme Court file screenshot, which includes a PDF icon, that the evidence is able to be publicly downloaded from that link.

11    Therefore, insofar as the subpoena seeks the letter of 13 March 2024, there is no abuse of process in relation to that, and the subpoena can be issued at least in relation to that letter. However, that does not necessarily capture all of the letters which are sought to be obtained by way of that subpoena.

12    The issue further raised by Mr Elks is the Supreme Court (Admission) Rules 2004 (Qld), particularly reg 15, which requires the Legal Practitioners Admissions Board to do certain things in relation to an applicant making an application for admission. The Supreme Court (Admission) Rules do provide, under subsection (1), that the Board’s recommendation must state various things. That is, in relation to, “If the board is satisfied the applicant is eligible and suitable for admission”. Under subsection (2), similarly, it provides, “If the board is not satisfied the applicant is eligible and suitable for admission, the board's recommendation must state”, and again it states various things.

13    The difficulty, however, is that the Legal Practitioners Admissions Board is not a party either to these proceedings or the proceedings in the Supreme Court for the admission of a legal practitioner. In these circumstances, it is difficult to see how the application of the Harman principle might apply.

14    Further to that, and noting the distinction that Derrington J applies in Woods, in relation to whether or not a matter is made under compulsion, it does, in my view, follow that Mr Elks was not compelled or obliged to make an application for admission as a legal practitioner, but has chosen to do so. In those circumstances, then, the Legal Practitioners Admissions Board does make a recommendation (either under subsection (1) or subsection (2)). However, that would not fall within the principles relating to documents obtained by compulsion, by disclosure or discovery of such a document, such that the 13 March 2024 letter cannot be used in these proceedings.

15    No other issues were raised. As such, I am satisfied that leave can be granted for the subpoena to produce documents that was lodged at 8:27am this morning by the CBP Parties to the Legal Practitioners Admissions Board.

16    The proper officer of the Legal Practitioners Admissions Board is sitting in the back of the Court with the relevant documents to answer that subpoena. Those documents will be received, and leave granted to the parties and the interested persons (together with their lawyers) to inspect and copy.

Associate:    

Dated:    6 February 2026