Commonwealth of Australia v Kupang Resources Pty Ltd (ACN 098 773 785)

The Commonwealth of Australia appealed to the Court of Appeal of the Supreme Court of New South Wales against an order of Ball J that refused to set aside a notice to produce issued by Kupang Resources Pty Ltd. The dispute concerned whether Kupang Resources, as a party to litigation, could obtain protected information under section 355-30 of the *Taxation Administration Act 1953* (Cth) via a notice to produce, notwithstanding the general prohibition on disclosing such information.

The primary legal issue before the Court of Appeal was whether the exception to disclosure contained in section 355-75 of the *Taxation Administration Act 1953* (Cth), which permits disclosure to a court, was engaged by a notice to produce issued by a party in civil proceedings. The court was required to determine if a notice to produce, as a mechanism for compelling disclosure in litigation, constituted a disclosure to a "court" for the purposes of this exception, or if it was merely a disclosure to a private litigant.

The Court of Appeal held that a notice to produce, which requires a party to disclose documents to another party, does not constitute disclosure to a "court" within the meaning of section 355-75 of the *Taxation Administration Act 1953* (Cth). The court reasoned that the exception was intended to allow disclosure for the court's own use in proceedings, not for the benefit of a private litigant. Consequently, the notice to produce, which sought to compel the disclosure of protected information to Kupang Resources, was invalid. The Court of Appeal granted leave to appeal, set aside the order of Ball J, and ordered that the notice to produce issued by Kupang Resources be set aside, with the respondent ordered to pay the appellant's costs.