Buckeridge v Commissioner of Taxation (No 2)

[2014] FCA 300

FEDERAL COURT OF AUSTRALIA

Buckeridge v Commissioner of Taxation (No 2) [2014] FCA 300

Citation:	Buckeridge v Commissioner of Taxation (No 2) [2014] FCA 300
Parties:	LEONARD WALTER BUCKERIDGE v COMMISSIONER OF TAXATION
File number:	WAD 162 of 2013
Judge:	MCKERRACHER J
Date of judgment:	28 March 2014
Cases cited:	Buckeridge v Commissioner of Taxation [2013] FCA 897
Date of hearing:	Determined on the papers
Date of last submissions:	18 March 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	3
Counsel for the Applicant:	Mr MP Caplice
Solicitor for the Applicant:	Ernst & Young
Counsel for the Respondent:	The Respondent did not file any submissions

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:	18 MARCH 2014
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The schedule of documents annexed to the orders of the Court published on 4 September 2013 be extended to include the following documents as documents 5, 6, 7 and 8 of the schedule:

1.In the Respondent's Submissions filed on 25 February 2014:

1.1paragraphs 25, 65, and 74 of the Respondent's Submissions; and

1.2paragraphs 2, 10, 11, 12, 52, 53, 54, 55, 57, 58, 59, 60, 61 of Annexure C to the Respondent's Submissions.

2.        Affidavit of Martin Paul Caplice sworn 10 March 2014.

3.        Brief filed by Applicant on 10 March 2014.

4.        Amended brief filed by Applicant on 18 March 2014.

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

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:	28 MARCH 2014
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 4 September 2013, I made confidentiality orders in respect of certain documents for reasons explained in Buckeridge v Commissioner of Taxation [2013] FCA 897 (Buckeridge No 1).  Shortly summarised, the reasons were that:

   (a)the applicant, in seeking a private ruling from the respondent, had been obliged to disclose to the respondent more information than he considered to be necessary in order to obtain a ruling.  The information disclosed remained confidential in the course of that process;

   (b)some of the information so disclosed was of a commercially sensitive nature which was not in the public domain including information which could benefit trade rivals;

   (c)the applicant’s appeal raised complex legal arguments which required resolution by the Court.  The applicant chose, not unreasonably, to refer those arguments for consideration by this Court rather than to the Administrative Appeals Tribunal (AAT).  By proceeding through the Court, confidentiality under the private ruling process and the AAT appeal (if sought), would give way to principles of open justice;

   (d)the respondent neither consented nor opposed the confidentiality orders;

   (e)the ruling sought from this Court pertained not to past or existing conduct but to the potential legal effect of possible future conduct.  Conduct which, at least in theory, might not be pursued if the respondent’s ruling were to be upheld in this Court and on any appeal; and

   (f)parliament provided an entitlement to appeal from a Private Ruling to this Court. In the unusual context of considering a ruling as to possible future private actions, material which was arguably peripheral but commercially sensitive had been produced involuntarily. There was evidence from the applicant and related third parties as to the concern about its disclosure. If the applicant was to be deterred by such risk of disclosure from exercising the appeal right conferred by Parliament, I considered some confidentiality orders necessary to prevent prejudice to the proper administration of justice. (See s 37AG(2) of the Federal Court of Australia Act 1976 (Cth).) This was to be balanced with the public interest in open justice. The balancing required that confidentiality should not be greater than was needed to recognise the principle of open justice. (The interlocutory orders made were not permanent but, rather, were limited in time and, at least, capable, in theory, of being challenged if a suitable argument could be mounted. Further, the nature of the orders sought and made (without more), did not affect what would be said in open court.)

2. By an application filed on 10 March 2014, the applicant sought to add a small number of documents filed after to 4 September 2013 to the schedule annexed to the 4 September 2014 orders.  The confidentiality of the entirety of those documents was not immediately apparent.  By documents filed on 13 March 2014 which amended the 10 March application, the scope of that confidentiality was subsequently reduced to certain parts of documents and submissions. 

3. For the reasons published in Buckeridge No 1, I have added those subsequent documents (or parts of them) to the schedule published in Buckeridge No 1.  Further, additional reasons for doing so over and above the 4 September 2013 orders are the fact that the submissions of parties would not normally be searchable on a court file without leave of a judge, particularly in circumstances where no hearing has occurred.  I would treat a taxation ‘Brief’ as being in the same category as submissions.  While written submissions would not normally be searchable without leave, these orders additionally impose confidentiality over certain parts.  Most significantly, the hearing on 11 March 2014 was unable to proceed due to the unexpected passing away of the applicant on the morning of the proposed but vacated hearing.  In those circumstances, the reasoning for the orders now made was further reinforced as no substantive argument at all took place.  The potential commercial activity in the form the subject of the appeal can no longer occur.  For those reasons, the following orders were made on 18 March 2014:

   1.The schedule of documents annexed to the orders of the Court published on 4 September 2013 be extended to include the following documents as documents 5, 6, 7 and 8 of the schedule:

   1.In the Respondent's Submissions filed on 25 February 2014:

   1.1      paragraphs 25, 65, and 74 of the Respondent's Submissions; and

   1.2paragraphs 2, 10, 11, 12, 52, 53, 54, 55, 57, 58, 59, 60, 61 of Annexure C to the Respondent's Submissions.

   2.        Affidavit of Martin Paul Caplice sworn 10 March 2014.

   3.        Brief filed by Applicant on 10 March 2014.

   4.        Amended brief filed by Applicant on 18 March 2014.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: 

Dated:       28 March 2014