Buckeridge v Commissioner of Taxation

Case •

[2013] FCA 897

•

4 September 2013

FEDERAL COURT OF AUSTRALIA

Buckeridge v Commissioner of Taxation [2013] FCA 897

Citation: Buckeridge v Commissioner of Taxation [2013] FCA 897
Parties: LEONARD WALTER BUCKERIDGE v COMMISSIONER OF TAXATION
File number: WAD 162 of 2013
Judge: MCKERRACHER J
Date of judgment: 4 September 2013
Catchwords: PRACTICE AND PROCEDURE – interlocutory application by applicant taxpayer for suppression or non-publication orders under s 37AH(1)(a) of the Federal Court of Australia Act 1976 (Cth) – where respondent Commissioner of Taxation filed supplementary bundle of documents under r 33.04 of the Federal Court Rules 2011 (Cth) containing commercially sensitive information – where proceeding is an appeal from a private ruling by the Commissioner in relation to a proposed future corporate restructure – where information provided to the Commissioner is ‘protected information’ under the Taxation Administration Act 1953 (Cth) and not in the public domain – where application for suppression or non-publication orders is not opposed by the Commissioner
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(2), 37AJ(1)
Cases cited: Australian Broadcasting Commission v Parish (1980) 43 FLR 129
Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430
Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082
Date of hearing: Determined on the papers
Date of last submissions: 22 August 2013
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 12
Counsel for the Applicant: Mr MP Caplice
Solicitor for the Applicant: Ernst & Young
Counsel for the Respondent: Mr P Walton
Solicitor for the Respondent: Jackson McDonald

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 162 of 2013
BETWEEN:

LEONARD WALTER BUCKERIDGE
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

4 SEPTEMBER 2013

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the documents referred to in the schedule attached to these Orders not be disclosed (by publication or otherwise) to any person other than the parties, their officers and their legal representatives.

2.Pursuant to s 37AJ(1) of the Federal Court of Australia Act 1976 (Cth), Order 1 operate until 30 June 2016.

3.Pursuant to s 37AG(2) of the Federal Court of Australia Act 1976 (Cth), the ground for Order 1 is that the order is necessary to prevent prejudice to the proper administration of justice.

4.The parties have liberty to apply.

5.There be no order as to the costs of the application.

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

Schedule

1.        Affidavit of Martin Paul Caplice sworn 13 August 2013

2.        Brief filed by Applicant on 14 August 2013

3.The following documents as itemised in the bundle of documents filed and served by the Respondent under rule 33.04(a)(i)-(iv) of the Federal Court Rules 2011 (Cth) on 12 June 2013:

i.Items 1.1 to 1.3 (comprising pages 1 to 26, inclusive);

ii.Item 1.4 (comprising pages 28 to 426, inclusive);

iii.Items 1.5 to 1.8 (comprising pages 427 to 450, inclusive);

iv.Item 2 (comprising pages 451 to 453, inclusive);

v.Item 3 (comprising pages 454 to 535, inclusive);

vi.Item 4 (comprising page 536);

vii.Item 5 (comprising pages 537 to 539, inclusive);

viii.Item 6 (comprising pages 540 to 542, inclusive);

ix.Item 6.3 (comprising pages 550 to 582, inclusive);

x.Item 7 (comprising pages 583 to 647, inclusive);

xi.Item 8 (comprising pages 648 to 658, inclusive);

xii.Item 9 (comprising pages 659 to 681, inclusive).

4.The following documents as itemised in the bundle of documents filed and served by the Respondent under rule 33.04 (a)(i)-(iv) of the Federal Court Rules 2011 (Cth) on 3 July 2013:

i.Item 11 (comprising pages 683 to 686, inclusive);

ii.Item 12 (comprising pages 687 to 688, inclusive);

iii.Item 13 (comprising pages 689 to 690, inclusive);

iv.Item 15 (comprising pages 692 to 739, inclusive).


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 162 of 2013
BETWEEN:

LEONARD WALTER BUCKERIDGE
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

JUDGE:

MCKERRACHER J

DATE:

4 SEPTEMBER 2013

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION

  1. In this tax dispute Mr Buckeridge wishes certain documents to remain confidential.  In the unusual circumstances of the matter, I consider that this request is appropriate. 

    THE DISPUTE

  2. The appeal concerns a challenge to the correctness of a ruling made by the Commissioner under Div 359, Sch 1 to the Taxation Administration Act 1953 (Cth) (TAA 1953). The ruling sets out the Commissioner’s opinion on how taxation laws will apply to a future course of conduct Mr Buckeridge desires to undertake, namely, a corporate demerger between now and 30 June 2016. The purpose of the s 14ZZ TAA 1953 appeal is to challenge the Commissioner’s opinion and to seek orders that a new and different ruling be made which will bind the Commissioner in assessing Mr Buckeridge to income tax in relation to the course of conduct in the tax year that it occurs.

  3. Mr Buckeridge has filed an interlocutory application and an accompanying brief in accordance with para 8 (Interlocutory Applications) of the Federal Court of Australia Practice Note TAX 1 seeking suppression or non-publication orders.  The Commissioner neither consents nor opposes the orders being made. 

  4. The application is also supported by an affidavit of Mr Martin Paul Caplice explaining the history of the exchanges and the nature of the documents. 

  5. In the substantive proceeding and pursuant to r 33.04 of the Federal Court Rules 2011 (Cth), the Commissioner has filed and served various documents including commercially sensitive information confidential to Mr Buckeridge and related companies which are affected by a proposed corporate restructure. They are documents not currently available in the public domain. There have been communications between the parties concerning the issue of the commercially sensitive nature of the documents leading to this unopposed application.

  6. As the affidavit in support indicates, information supplied to the Commissioner so far has been provided as ‘protected information’. A taxpayer is obliged to set out fully the circumstances of a proposed course of conduct and to provide the Commissioner with such information as he requests for the making of a ruling under Div 359 of Sch 1 to the TAA 1953. In doing so, the information provided is ‘protected information’ for the purposes of the secrecy provisions of subdiv 355-B of Sch 1 to the TAA 1953. That applies also to an objection against a ruling under Div 3 Pt IVC TAA 1953 and also in the seeking of a review in the Administrative Appeals Tribunal (AAT) of the Commissioner’s objection decision where such a review can be in private under s 14ZZE TAA 1953. Mr Buckeridge has chosen the alternative course on this occasion by appealing directly to this Court against the objection decision. The fact that the appeal is to the Court as distinct from the AAT means that the appeal is open to the public unless orders varying the open justice principles are made.

    THE PRINCIPLES

  7. As indicated by Perram J in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 (at [35]), ‘commercial sensitivity can be a basis for the making of an order of the present kind’, where his Honour was referring to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA).  That section provides as follows:

    37AF   Power to make orders

    (1)The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

    (a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

    (b)information that relates to a proceeding before the Court and is:

    (i)information that comprises evidence or information about evidence; or

    (ii)information obtained by the process of discovery; or

    (iii)information produced under a subpoena; or

    (iv)information lodged with or filed in the Court.

    (2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

  8. See also the discussion by Bowen CJ and Franki J respectively in Australian Broadcasting Commission v Parish (1980) 43 FLR 129 (at 134 and 146) and Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 per Greenwood J (at [13]).

    THE APPLICATION

  9. In the present circumstances, the documents identified in the annexures to the minute of proposed orders do not need to be disclosed publically for a private controversy about a proposed future course of conduct to be properly quelled. 

  10. The terms of the orders as proposed, in my view, strike a balance between the importance of open justice on the one hand and achieving the objectives of the TAA 1953 on the other.

  11. It is significant, in my view, in the exercise of discretion, that this appeal does not relate to past actions which might be the subject of an assessment but, rather, to a future course of conduct which is contemplated.  It does not relate to public matters (to the extent confidentiality is sought) nor is there any other obvious public interest in the subject matter of this particular appeal. 

  12. For those reasons, I make orders in terms of the minute as follows:

    1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the documents referred to in the schedule attached to these Orders not be disclosed (by publication or otherwise) to any person other than the parties, their officers and their legal representatives.

    2.Pursuant to s 37AJ(1) of the Federal Court of Australia Act 1976 (Cth), Order 1 operate until 30 June 2016.

    3.Pursuant to s 37AG(2) of the Federal Court of Australia Act 1976 (Cth), the ground for Order 1 is that the order is necessary to prevent prejudice to the proper administration of justice.

    4.The parties have liberty to apply.

    5.There be no order as to the costs of the application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: 

Dated:       4 September 2013

Schedule

1.Affidavit of Martin Paul Caplice sworn 13 August 2013

2.Brief filed by Applicant on 14 August 2013

3.The following documents as itemised in the bundle of documents filed and served by the Respondent under rule 33.04(a)(i)-(iv) of the Federal Court Rules 2011 (Cth) on 12 June 2013:

i.Items 1.1 to 1.3 (comprising pages 1 to 26, inclusive);

ii.Item 1.4 (comprising pages 28 to 426, inclusive);

iii.Items 1.5 to 1.8 (comprising pages 427 to 450, inclusive);

iv.Item 2 (comprising pages 451 to 453, inclusive);

v.Item 3 (comprising pages 454 to 535, inclusive);

vi.Item 4 (comprising page 536);

vii.Item 5 (comprising pages 537 to 539, inclusive);

viii.Item 6 (comprising pages 540 to 542, inclusive);

ix.Item 6.3 (comprising pages 550 to 582, inclusive);

x.Item 7 (comprising pages 583 to 647, inclusive);

xi.Item 8 (comprising pages 648 to 658, inclusive);

xii.Item 9 (comprising pages 659 to 681, inclusive).

4.The following documents as itemised in the bundle of documents filed and served by the Respondent under rule 33.04 (a)(i)-(iv) of the Federal Court Rules 2011 (Cth) on 3 July 2013:

i.Item 11 (comprising pages 683 to 686, inclusive);

ii.Item 12 (comprising pages 687 to 688, inclusive);

iii.Item 13 (comprising pages 689 to 690, inclusive);

iv.Item 15 (comprising pages 692 to 739, inclusive).

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