Areffco and Commissioner of Taxation

[2011] AATA 932

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 932

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No  2010/2360-2371

TAXATION APPEALS DIVISION		)
Re		AREFFCO

Applicant

And Commissioner of Taxation

Respondent

DECISION

Tribunal Mr P W Taylor SC, Senior Member

Date23 December 2011

PlaceSydney

Decision The Respondent’s application for an order releasing any limitation on the proposed use of the hearing evidence, and the Applicant’s alternative application for an order under section 35 of the Administrative Appeals Tribunal Act 1975, are refused.  

..................[sgd]............................

Mr P W Taylor SC
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – request for release from any limitation on the proposed use of evidence adduced in hearing – whether the “other use” limitation applies where disclosed material has been adduced in proceedings conducted in private in accordance with the Taxation Administration Act 1953 – application for confidentiality order – applications refused

Administrative Appeals Tribunal Act 1975 s 35, 43

Taxation Administration Act 1953 s 14ZZE, 14ZZJ

Ainsworth v Hanrahan (1991) 25 NSWLR 155

Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (1995) 57 FCR 360

Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833

Australian Trade Commission v McMahon (1997) 73 FCR 211

Bibby Bulk Carriers Ltd v Cansulex Ltd [1989] QB 155

British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571

Crest Homes plc v Marks [1987] AC 829

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10

Griffiths & Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230

Hartnell v Commissioner of Taxation (2009) 254 ALR 71

Hearne v Street (2008) 235 CLR 125

Home Office v Harman [1983] 1 AC 280

Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283

Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467

Re a Barrister and Solicitor (1979) 29 ACTR 25

Re Environmental Images Pty Ltd and Australian Trade Commission (1996) 45 ALD 674

Re Matthews and Australian Securities and Investments Commission (2010) 118 ALD 23

Sapphire (SA) Pty Ltd v Barry Smith Grains Pty Ltd (in liq) [2011] NSWCA 1451

Scott v Scott [1913] AC 417

Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Trade Practices Tribunal; ex parte Tooheys Ltd (1977) 16 ALR 609

Y v University of Western Australia (No 2) (2006) 151 FCR 322

REASONS FOR DECISION

23 December 2011 Mr P W Taylor SC, Senior Member

1.      The review application in these proceedings related to the Commissioner’s assessment decisions for financial years from 1997 to 2008.  I delivered reasons for decision, dealing with the substance of the Applicant’s grounds of objection to the assessments, on 6 September 2011.

2. The Tribunal did not make any order, under s 35 of the Administrative Appeals Tribunal Act 1975, restricting the publication of the evidence adduced in the review proceedings. But the hearing was conducted in the absence of the public. This was the mandatory result of the Applicant’s request, and the consequential operation of s 14ZZE of the Taxation Administration Act 1953.

3.      The Respondent proposes to use the affidavit evidence, exhibits and hearing transcript for the purpose of other proceedings in the Tribunal, and in the Federal Court of Australia.  Those proceedings involve assessment decisions concerning entities related to people who are, or at relevant times were, the Applicant’s principal officers and shareholders.  The Respondent contends this proposed use of the hearing evidence is proper, and requires no prior Tribunal permission.  Lest that contention be incorrect, and the proposed use might otherwise constitute an offence under s 63(5) of the AAT Act, the Respondent seeks an order releasing any limitation on the proposed use of the hearing evidence.

4. The Applicant opposes the proposed use of the evidence. In case the Respondent is correct in his principal contention (that no prior permission is required), the Applicant seeks an order under s 35 of the AAT Act. The order sought, though not precisely formulated, would have the effect of restricting publication of the evidence by the Respondent.

5.      There is substantial agreement between the parties about a number of matters relevant to the present applications. 

6.      The review proceedings, and the “other” proceedings that provide the occasion for the contentious proposed use of the evidence, are related in many respects.  Those respects include (i) similarity of shareholders and officers, between the various taxpayer entities, (ii) apparently relevant similarity of contentious loans by foreign bank lenders, (iii) loan payments made directly or indirectly by one of the related entities on behalf of another, (iv) the application of the contentious foreign loan funds to subsidiary loans between related entities, (v) numerous common witnesses (both lay and expert), and (vi) actual reliance, in the present review proceedings, on aspects of the “other” loans, for the purpose of demonstrating the regularity of the contentious loan transactions.

7.      In addition to their substantial agreement on the apparently related nature of the various proceedings, the parties are also agreed on the accuracy of a number of propositions germane to the present applications.  These include the propositions that:

(a)the Respondent’s application only relates to material the Tribunal actually received in evidence in the review proceedings;

(b)material (that is, both documents and the information they convey) that has been compulsorily disclosed to parties to review proceedings in the Tribunal, must only be used for the purpose of those proceedings – unless the Tribunal has either:

(i)received the material into evidence at a public hearing[1], or

(ii)permitted the “other use” of the material.[2]

(c)the Tribunal has an incidental power to grant an application for “other purpose” use of compulsorily disclosed material, and may exercise that power even after the substantive determination of the review proceedings[3];

(d)the Tribunal should only permit “other use” of compulsorily disclosed material where the proposed “other use” use is justified by a sufficiently good reason[4] - having regard to the nature of the document, the circumstances and purpose of its creation, the nature of the proposed use and the potential significance of the document to that use.

[1] This proposition was treated by the parties as uncontroversial.  But there is some conflict in the authorities, and few authorities where its basis has been fully articulated.  The issue that arose in Home Office v Harman [1983] 1 AC 280 was whether the “other use” restriction applied to the contents of a document after it had been partially read aloud in open court, even though it was never formally tendered. Some cases have interpreted the speeches in the House of Lords as proceeding on the basis of a unanimous, but unexpressed, assumption that formal tender of the document would have obviated any restriction: see Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833 at [14]; Sapphire (SA) Pty Ltd v Barry Smith Grains Pty Ltd (in liq) [2011] NSWCA 1451 at [190]. But, as the Victorian Court of Appeal pointed out in British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571 at 583, this interpretation of the decision is explicitly contradicted by the passage in the speech of Lord Diplock at [1983] AC 304-5. The actual decision in Harman’s case was that the “other use” restriction survived the open court disclosure of the contents of the compulsorily disclosed documents.  Lords Scarman and Simon expressed a dissenting view that public disclosure of that kind made continuation of the “other use” restriction untenable.  That dissenting view was reflected in a subsequent amendment to the UK High Court rules in 1987:  see Bibby Bulk Carriers Ltd v Cansulex Ltd [1989] QB 155. It was accepted by a majority of the NSW Court of Appeal in Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 164D and 169F. And the High Court of Australia, in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32 per Mason CJ, Dawson and McHugh JJ, endorsed the wider proposition - that the “other use” restriction did not survive evidentiary tender. The High Court repeated that view in Hearne v Street (2008) 235 CLR 125 at [96], and stated the general law principle in terms that made the restriction inapplicable to material tendered in evidence in the proceedings. Both that wider proposition, and the views of Lords Scarman and Simon in Harman’s case, have been adopted, either expressly or impliedly, in contemporary Australian rules of court: see Uniform Civil Procedure Rules 2005 r 21.7(1) (NSW); Federal Court Rules2011 r 20.03(1). Moreover, as the High Court noted, in expressing the general law principle in Hearne v Street, at least some court practices specifically permit public access to the evidence adduced in proceedings: see 235 CLR 125 at [98] - referring to NSW Supreme Court Practice Note No 97 SC Gen 2 paragraphs 6 and 7. These judicial practices are not uniform. In the Victorian Supreme Court, for example, the absence of a similar provision prompted the Court of Appeal to reject the proposition that the tender of evidence removed any “other use” restriction deriving from the prior compulsory disclosure of the material: see British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571 at [28], [34], [35] and [48]. In the Federal Court of Australia the rules confer an express public access entitlement to pleadings, judgments, reasons for judgment and statements of agreed facts. There is no express right of access to evidence adduced in the proceedings. But the court has a general discretion to permit individual access to the evidence by non parties: see r 2.32(4). Access will ordinarily be granted to the evidence unless it is properly to be regarded as confidential under general principles: see Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 at [27]; Hartnell v Commissioner of Taxation (2009) 254 ALR 71 at [8]-[9]. Underlying that ordinary approach to the exercise of the discretionary power to permit public inspection is a strongly expressed preference for the open administration of justice, and the correlative desirability of full access to the record of evidence in proceedings: see Y v University of Western Australia (No 2) (2006) 151 FCR 322 at [45] and [46].

[2] This proposition, in its application to the Tribunal, has been accepted in prior decisions of the Federal Court of Australia:  Australian Trade Commission v McMahon (1997) 73 FCR 211; Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 472. It has also been accepted in prior decisions of the Tribunal: Re Matthews and Australian Securities and Investments Commission (2010) 118 ALD 23 at [166]-[167].

[3] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 473.

[4] The required permission criterion has sometimes been expressed as requiring “special reasons”:  However the better view is that permission may be granted in any case where the court or tribunal considers it appropriate.  The required satisfaction must be based on considerations that have a particular relevance, and is unlikely to be available as a matter of course.  It will normally require an applicant to identify a sufficient reason, applicable to the particular circumstances:  Crest Homes plc v Marks [1987] AC 829 (“cogent and persuasive reasons”). In that sense the circumstances required may be characterised as “special”. But this characterisation does not impose any additional requirement of novelty in relation to the acceptable grounds for granting permission: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 223-4; Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31].

8. The principal point at issue between the parties is whether the “other use” limitation applies where the disclosed material has been adduced into evidence in review proceedings conducted “in private” in accordance with s 14ZZE of the Taxation Administration Act 1953.  A secondary issue, if the limitation applies, is whether the Respondent has sufficiently disclosed the nature and extent of the proposed use of the evidence in the related proceedings.

9.      Both parties have proceeded on the basis that none of the material would otherwise be available in the other proceedings, whether by way of discovery, summons or subpoena.  That assumption may be questionable, at least in relation to some documents:  see Griffiths & Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230 at [4]-[10]. But, in view of the conclusion I have otherwise reached, and in the absence of specific submissions from the parties, it is not a matter that merits further consideration.

10.     Neither party drew any distinction between the affidavits and exhibits, on the one hand, and the hearing transcript, on the other.  This is also a questionable approach.  Neither of the authorities that appear to give the “other use” restriction its widest scope (Home Office v Harman [1983] 1 AC 280 and British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571) suggest that the restriction has any application to the transcript of proceedings. Indeed a passage in the judgment in the latter case is unambiguously to the contrary: see (2003) 8 VR 571 at [28]. However, in the absence of specific submissions from the parties on this point it is also not a matter that can properly be regarded as determinative in the present proceedings.

11. The Respondent’s principal contention is that the “other use” limitation does not apply and that no prior permission is required for the proposed use of the evidence. The Respondent says that the s 14ZZE requirement only applies to the “hearing of a proceeding” before the Tribunal. It does not address any issues of publication or “other use” of the evidence in the proceedings.

12.     In the light of these principal contentions the Respondent’s application has been brought out of an abundance of caution.  That caution is understandable, having regard to the offence created by s 63(5) of the AAT Act.  It is more understandable given the parties’ shared view that there is no determinative statutory provision, or decided authority.  Nevertheless, in a Tribunal whose mandated objective is that of providing a review mechanism that is fair, just, economical, informal and quick (see AAT Act s 2A) it is highly undesirable that any party should feel compelled by uncertainty to make an application they do not really regard as necessary.

13. The Applicant’s approach to the Respondent’s application has a corresponding diffidence. Recognising the absence of any clear and binding prescription, the Applicant’s contention is that the practical effect of the s 14ZZE requirement to conduct the review proceedings “in private” would be undermined unless the section was understood as also conveying a restriction against the “other use” of the hearing evidence. This contention is not unlike the argument, unsuccessfully propounded in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, that where arbitration proceedings were required to be conducted in private, that requirement gave rise to an implied obligation of confidentiality precluding disclosure of any information relating to the arbitration proceedings. The contention was not advanced with the precision required to justify an order under s 35 of the AAT Act.

14.     The diffidence that characterised both parties’ approaches to their respective applications is inherently undesirable.  I have attempted in these reasons to provide a clear indication why the Respondent’s application was unnecessary, and that of the Applicant was inappropriate.

15.     The precise basis for the “other use” limitation on material disclosed to parties for the purpose of litigious proceedings has been the subject of different explanations.  Most frequently, and in the course of the parties’ respective submissions in the present matter, the “other use” limitation has been described as an implied undertaking attributed to the recipient of the material.  The rationale for this explanation is that the information was only provided by the disclosing party as an incident of its obligations related to the conduct of the proceedings.  Correspondingly, the recipient should be regarded as accepting the disclosure on the same basis, and acknowledging that its entitlement to use the material is similarly restricted to the conduct of the proceedings.  Alternatively, the limitation is implied as a means of providing a measure of assurance against the improper use of private information and is intended to encourage full compliance with the disclosure obligations intended to facilitate the proper determination of the proceedings.[5]

[5] Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (1995) 57 FCR 360 at 379D; British and American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571 at [20].

16.     The better view is that the “other use” restriction is a matter of substantive law, triggered by the compulsory nature of disclosure where it is made in accordance with the procedural rules and directions of the court or tribunal in which the disclosure occurs: see Hearne v Street (2008) 235 CLR 125 at [102], [105] - [107]. This explanation of the basis of the restriction accommodates the situation where it also applies to prevent use of the “other use” of material by people who are not parties to the proceedings, for example legal representatives, witnesses and court staff.[6] 

[6] Sapphire (SA) Pty Ltd v Barry Smith Grains Pty Ltd (in liq) [2011] NSWCA 1451 at [176].

17.     This preferable conceptual basis for the “other use” limitation also explains why the limitation does not apply to material that has been received into evidence, at least where the hearing has been conducted in public.  Once the material has been put into evidence at a public hearing the recipient’s knowledge and possession of it can no longer be solely attributed to the compulsory pre hearing disclosure.  They are also a consequence of the discloser’s participation in the public hearing process.  If the contentious material has been tendered in the hearing process by the original discloser, the decision to tender the material reflects the discloser’s own voluntary decision to publish the material, and to abide by the practices and orders of the relevant tribunal in relation to evidence in the proceedings.  That is, on any view, a persuasive reason to regard the “other use” restriction as having no further application.[7]  Even if the material is tendered by a party other than the original discloser, the status of the evidence tendered at a public hearing is inconsistent with any use limitation continuing to apply to publicly available information.[8]

[7] British and American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571 at [34].

[8] This is the position that would follow from the High Court’s statement of the general principles in Hearne v Street (2008) 235 CLR 125 at [96]. Twelve years earlier DP McMahon had expressed the same view: Re Environmental Images Pty Ltd and Australian Trade Commission (1996) 45 ALD 674. In that case a respondent had put into evidence documents the applicant had produced in answer to a summons. The Tribunal held that AAT Act s 43A(1) permitted the tendered documents to be “returned” to the respondent. The Tribunal also held that the “other use” restriction would not apply to the use of hearing evidence “for legitimate collateral purposes” - namely the investigation of possible criminal offences: see also Australian Trade Commission v Deputy President McMahon (1997) 73 FCR 211. In so far as the judgment in British and American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571 at [28] favours the contrary view it depends on an essentially arbitrary distinction between the permissible use of the transcript of the proceedings, and the impermissible use of the documents and affidavits to which the transcript refers, and whose contents it will often at least partly disclose. That distinction is not consistent with the unambiguous statements of the High Court in Esso v Plowman and in Hearne v Street. Neither is it a distinction that should be applied in Tribunal proceedings governed by s 35 of the AAT Act: compare British and American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571 at [21].

18.     Where the hearing process is conducted in private, the disclosing party’s tender of the material again reflects a voluntary decision.  That is the position that applies in the present case to almost all of the contentious affidavits and exhibits.  Furthermore, the affidavits and exhibits that each of the parties put into evidence were material they had themselves created.  They did not involve material provided by the other party.  Consequently there is no basis on which this material could be regarded as subject to the “other use” restriction that applies to material that has been obtained by a party as a result of a compulsory pre hearing disclosure.  (The only readily apparent possible exception to this general position was Exhibit 17R - a deed of charge that the Respondent tendered and which may have been disclosed by the Applicant or a related entity.)  Even if the “other use” limitation had a factual basis in relation to some of the material, the voluntary nature of each party’s decisions in tendering the respective affidavit evidence and exhibits removes at least part of the justification for any such limitation surviving the tender of the material at the hearing.  Whether that limitation would nevertheless continue where the tender was made by the disclosure recipient depends on an accurate understanding of the nature of the particular hearing process, and the incidents that ordinarily attach to it. 

19. So far as the nature of the hearing process is concerned, s 35 of the AAT Act is of fundamental importance. The section conditionally permits the Tribunal to make a range of directions restricting the disclosure and publication of the contents of Tribunal proceedings. In so doing s 35 distinguishes between (i) directions that a hearing is to take place in private, (ii) a direction prohibiting the publication of witness identities, (iii) directions prohibiting the publication of evidence given in Tribunal proceedings “whether in public or in private”, and (iv) directions restricting the disclosure of evidence to the parties to Tribunal proceedings. But the exercise of the powers conferred by s 35 is subject to the mandatory obligation in s 35(3) of the AAT Act that the Tribunal must take “as the basis of its consideration” the desirability of public availability of evidence given before the Tribunal, and the public availability of documents lodged with the Tribunal. That basis of the Tribunal’s consideration must also pay “due regard” to the reasons why “the hearing should be held in private or why publication or disclosure of the evidence … should be prohibited or restricted”.

20. The terms of s 35 of the AAT Act unequivocally emphasise the desirability of public access to the evidence given in Tribunal proceedings. In this respect the potential public accessibility of the evidence given in Tribunal proceedings is far more emphatically expressed than in many rules of court, or in judicial practice notes. Noting the emphasis contained in AAT Act s 35, the Tribunal concluded in Re Matthews and Australian Securities and Investments Commission (2010) 118 ALD 23 at [178] that the “other use” limitation did not apply to material once it had been tendered in evidence in Tribunal proceedings.

21. Furthermore the terms of s 35 of the AAT Act also suggest that the nature of a hearing (that is, whether it is conducted in public or in private) and the publication and disclosure of evidence, are separate concepts. This distinction is also arguably implicit in s14ZZE of the Taxation Administration Act 1953. In conditionally requiring that the Tribunal hearing of review proceedings be “in private” the section applies “despite section 35 of the AAT Act”, but it does not otherwise purport to either preclude or limit the exercise of the direction powers conferred by s 35(3) of the AAT Act in connection with such a hearing “in private”. A similar restraint can be discerned in s 14ZZJ of the Taxation Administration Act 1953. This section modifies the application of s 43 of the AAT Act (which deals with the required content of reasons for decision) to taxation review proceedings of the kind to which the present proceedings relate. The terms of this section make it perfectly clear that the privacy of the hearing of the review proceedings does not prohibit the Tribunal from publishing its reasons for decision. Those reasons must include findings on material questions of fact and reference to the evidence or other material on which the findings are based, and it must be provided to the parties: see s 43(2B) and 43(3) of the AAT Act. The only, presently relevant, limitation on the content of the Tribunal’s reasons for decision is that, unless an appeal has been lodged with the Federal Court, the Tribunal must ensure “so far as practicable” its reasons for decision are framed so as “not to be likely to enable the identification of the person who applied for the review”. This limitation does not directly restrict the disclosure, in the reasons for decision, of material evidence in the proceedings. Nor is there any other express limitation on the use by the parties of either the reasons for decision or the evidence given in the review proceedings.

22.     This absence of any explicit restriction on the publication or use of evidence that has been given in a “private” Tribunal hearing should be understood against the background awareness of long standing authority that the mere requirement to conduct proceedings in private does not convey, at least it does not necessarily convey, an additional prohibition on the disclosure of the proceedings and the evidence they involve.  This was the view expressed in Scott v Scott [1913] AC 417 by Viscount Haldane (at 440), the Earl of Halsbury (at 443 and 444), Earl Loreburn (at 448), Lord Atkinson (at 450, 451 and 453) and Lord Shaw (at 476 and 483). It was a view accepted by Franki J in Trade Practices Tribunal; ex parte Tooheys Ltd (1977) 16 ALR 609 at 618. And it was a consideration that prompted Blackburn CJ to say of a statutory provision that a tribunal hearing was not “open to the public” that the absence of a further additional express restriction on the publication of the proceedings should be regarded as an intentional legislative restraint: see Re a Barrister and Solicitor (1979) 29 ACTR 25 at 27. Indeed, as the circumstances that arose in Scott v Scott [1913] AC 417 pointedly show, there are very good reasons why a statutory requirement that a hearing be conducted in private should not, of itself, be regarded as either conveying unexpressed limitations on the permissible use and disclosure of the hearing evidence, or as restricting the powers of the relevant court or tribunal to regulate the conduct of the proceeding and the respective parties’ behaviour in relation to them.

23. I conclude that no “other use” limitation affecting material that has been obtained as a result of a compulsory pre hearing disclosure applies after the material has been tendered in evidence in Tribunal proceedings. This conclusion applies irrespective of whether the hearing was conducted in public or in private. No other restriction applies to the evidence given at such a hearing that would, in the absence of a relevant direction under s 35 of the AAT Act, restrict its permissible use for the purpose of other related proceedings. I express no view on the more general question whether publication of private hearing evidence, unrelated to the proper conduct of related proceedings, or unrelated to the proper discharge of the Respondent’s statutory functions, would be relevantly improper.

24.     In the light of this conclusion it is unnecessary to consider the Applicant’s criticism that the Respondent’s permission application was insufficiently precise in disclosing the actual way in which the material was proposed to be used for the purpose of the related proceedings.  It is also unnecessary to address the Applicant’s further complaint that the application was exaggerated because some of the material was most unlikely to have any forensic utility in the other proceedings.

25. The remaining matter is the Applicant’s alternative contention that an order should be made under s 35 of the AAT Act restricting publication of the evidence in the proceedings. The Applicant did not seek to support this contention on any grounds additional to its opposition to the Respondent’s request for “other use” permission. Consequently the Applicant did not address a number of potentially relevant considerations – including:

(a)the extent to which much of the hearing evidence had emanated from the Respondent’s witnesses;

(b)the extent to which a substantial part of the Applicant’s documentary evidence included matters of publicly available record (for example, land sales transactions);

(c)the fact that all of the Applicant’s evidence had been published to the Respondent, without any express restriction;

(d)the fact that the Respondent’s proposed use was confined to the conduct of related proceedings;

(e)the extent to which the content of the hearing evidence was available from the published reasons for decision, to which no material disclosure restriction applies;

(f)the fact that appeal proceedings have been commenced in the Federal Court of Australia, and no publication or disclosure restriction has been imposed in those proceedings.

26. In the absence of consideration of the matters alluded to in the preceding paragraph, and a specifically formulated proposed direction, it is not appropriate, given the terms of s 35 of the AAT Act, to accede to the Applicant’s alternative contention.

27.     For the reasons set out above both the Respondent’s application, and the Applicant’s alternative application, are refused.  The Respondent’s proposed use of the hearing evidence requires no permission.  The Applicant’s proposed restriction on the Respondent’s use of the hearing evidence is not appropriate to impose.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC

Signed:         ..............[sgd]..................................................................
  Associate

Date of Hearing  19 December 2011
Date of Decision  23 December 2011

Counsel for the Applicant         Mr R Hamilton SC and Ms S Kaur-Bains
Solicitor for the Applicant          Signet Lawyers
Counsel for the Respondent     Mr T M Thawley
Solicitor for the Respondent     Maddocks