Deputy Commission of Taxation v Elzain (No 2)
[2024] FCA 346
•9 April 2024
FEDERAL COURT OF AUSTRALIA
Deputy Commission of Taxation v Elzain (No 2) [2024] FCA 346
File number(s): VID 1082 of 2023 Judgment of: MCELWAINE J Date of judgment: 9 April 2024 Catchwords: PRACTICE AND PROCEDURE – further application by respondents for suppression of reasons for judgment following its publication – where application was made by solicitor’s email to chambers following publication of judgment in open court – where suppression was not pressed by counsel at hearing – where no principled basis identified for application – where insufficient attention paid to primary objective of safeguarding the public interest in open justice – where communication to chambers by respondents’ solicitor was argumentative and inappropriate – application refused Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M , 37N, 37AF, 37AI Cases cited: Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 30
Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 1276
Commissioner of Taxation v [Respondent] [2023] FCA 1176
Deputy Commissioner of Taxation v Elzain [2024] FCA 342
Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719
Deputy Commissioner of Taxation v Wu (No 2)[2024] FCA 269
Deputy Commissioner of Taxation v Wu [2024] FCA 250
Lehrmann v Network Ten Pty Ltd (Livestream) [2023] FCA 1452
R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Confidentiality Orders) [2022] FCA 1443
Division: General Division Registry: Victoria National Practice Area: Taxation Number of paragraphs: 36 Date of hearing: 8 April 2024 Solicitor for the Applicant: Mr W Logan of Craddock Murray Neumann Lawyers Counsel for the Respondents: Mr ID Martindale KC and Ms CV Nicholson Solicitor for the Respondents: Diakou Faigen, Lawyers ORDERS
VID 1082 of 2023 BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Applicant
AND: RAYMOND ELZAIN
First Respondent
EDWARD ELZAIN
Second Respondent
ANTHONY ELZAIN (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
MCELWAINE J
DATE OF ORDER:
9 APRIL 2024
THE COURT ORDERS THAT:
1.Each of the informal applications made by the respondents on 8 April 2024 to refrain from publishing my reasons delivered to the parties on 15 March 2024 is refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCELWAINE J:
For reasons that I published, initially limited to the parties, on 15 March 2024, I determined an extensive application made by the respondents for suppression and non-publication orders pursuant to ss 37 AF and 37AG of the Federal Court of Australia Act 1976 (Cth) and pursuant to rr 1.32, 1.35, 2.28(1)(a) or (b) of the Federal Court Rules 2011 (Cth): Deputy Commissioner of Taxation v Elzain [2024] FCA 342. What follows should be read with reference to those reasons.
In short, I concluded that the extent of the orders sought were not consistent with the requirement to safeguard the public interest in open justice pursuant to s 37AE of the Act. However, I concluded that in some respects the making of more limited orders would be consistent with the ground for doing so at s 37AG(1)(a) of the Act because, in those respects, there was a basis disclosed in the evidence to be satisfied that the orders were necessary to prevent prejudice to the proper administration of justice. Therefore, I afforded the respondents an opportunity to reformulate the scope of the orders sought and in a form consistent with my reasons.
I adjourned the matter for further hearing to 25 March 2024, and granted liberty to the respondents to make any further application by 4 pm on 21 March 2024. The hearing did not resume on 25 March 2024, in particular due to the unavailability of junior counsel for the respondents who was tasked with the not inconsiderable responsibility of reformulating the orders together with hundreds of redactions to the various documents in issue. Accordingly, the proceeding was adjourned to resume on 8 April 2024, with a consequential adjustment to the timetable for making the anticipated further application.
On 4 April 2024, the respondents’ solicitor provided to my chambers a draft of the proposed amended orders together with an extensive annexure which identifies prescriptively the redactions that are sought from the documents in issue.
On the morning of 8 April 2024, I received further submissions from counsel as to the form of the proposed orders. As I then indicated, I was generally satisfied with the more limited basis for the making of suppression and non-publication orders save for four matters.
First, the proposed orders seek the redaction of the words serious misconduct or misconduct that appear at [6], [55], [74], [75], [76] and [82] of my reasons. In oral argument, I drew attention to the decision of Thawley J Deputy Commissioner of Taxation v Wu (No 2)[2024] FCA 269, where his Honour refused a similar application to suppress publication of portions of his reasons for judgment earlier delivered in Deputy Commissioner of Taxation v Wu [2024] FCA 250 (Wu No 1). In Wu (No 2) the portions of the reasons in contention concerned material relied on by the Commissioner in support of the making of freezing orders against the respondents. The Commissioner had issued assessments in amounts over $200 million and the material supported various conclusions reached by the Commissioner that in his view the respondents had failed to declare assessable income and had engaged in dishonest conduct and evasion. His Honour dismissed the application to redact those parts of his reasons, explaining why at [6]-[7]:
There has not yet been any adjudication by a Court or Tribunal about whether the Commissioner’s position or the respondents’ position is correct. No Court of [sic] Tribunal has made any finding of wrongdoing by the respondents on the basis of what the Commissioner contends. More specifically, there has been no adjudication of whether Mr Alex Wu and Ms Jina Chen either sought to, or did, mislead the Commissioner during the audit.
I am not satisfied that the parts of [41(2)] and [61(1)] of the reasons for judgment delivered on 18 March 2024 in respect of which an application is made should be suppressed. An order under s 37AF(1) is not necessary on the ground in s 37AG(1)(a) when those paragraphs are, as they must be, read and understood in context, particularly in the context of [16]. Further, I am not satisfied that sufficiently substantial commercial or other harm would arise from the general statement of the Commissioner’s position summarised in paragraphs [41(2)] and [61(1)], particularly in a context where the allegations are unexplained by any evidentiary material and are known not to have been tested in the proceedings. I accept that the respondents may suffer commercial and reputational harm as a result of the steps the Commissioner has taken in issuing assessments and obtaining freezing orders and as a result of the information which is in the public domain about the dispute between the Commissioner and the respondents. I do not accept that the general summary in [41(2)] and [61(1)] is likely to cause any additional harm.
In this matter, as explained in my primary reasons, the Commissioner placed substantial material before the Court to establish the strength of the case against the respondents and to establish the risk of dissipation of assets by the respondents as prospective judgment debtors as required by r 7.35 of the Rules. In my primary reasons I did not repeat the basis on which the Commissioner formed those views and nor did I adopt the Commissioner’s nomenclature. Rather, because I accepted that where serious allegations are made upon an ex parte application and in circumstances where the respondents will not have any fair opportunity in these proceedings to rebut the allegations, I was satisfied that this material should properly be made the subject of suppression and non-publication orders as necessary to prevent prejudice to the proper administration of justice. I explained why in my primary reasons at [20] and [74]-[76].
In oral submissions on 8 April 2024, senior counsel for the respondents Mr Martindale KC, following my reference to the decision in Wu (No 2), said that he did not press that part of the proposed orders to redact portions of my reasons. This is subparagraph (f) in annexure A to the proposed orders.
The submissions then addressed the second matter of concern, being an apparent difference as a matter of principle between myself and Thawley J in Wu (No 1) concerning the making of suppression orders relating to the Commissioner’s position papers and related reasons for the making of assessments in issue. In Wu (No 1), Thawley J did make suppression orders over material of that kind for the reasons explained at [42]-[44], [59] and [62]. His Honour was satisfied that the orders were properly made as necessary to prevent prejudice to the proper administration of justice because the Commissioner had asserted that the respondents had engaged in dishonest conduct and evasion, the freezing order application was made ex parte, the disclosure of that material was reasonably likely to result in commercial harm and it would be unfair to the respondents to permit publication in circumstances where they did not have an opportunity to seek to prevent the material from being read in open court.
I do not read his Honour’s reasons as formulating a principle of general application in these types of cases. Rather, his Honour was persuaded to make the orders relating to this material based on his assessment of the degree of reputational harm likely to be suffered by the respondents in consequence of the serious nature of the material and the allegations made by the Commissioner. So much is clear from the reasons at [41(1)], [43], [58] and [59(a)].
In this case I am satisfied that the respondents have made out a case for the making of suppression and non-publication orders relating to a substantial portion of the material contained within the Commissioner’s affidavits, including material in the position papers and other documents that explain the Commissioner’s reasons for the amended assessments, to the extent that this material references the contentions of misconduct, the basis therefor and personal data such as bank account details: [82]. Otherwise, I was not satisfied on the evidence that this material should be suppressed. Ultimately, I reached an evaluative decision that differs from that of Thawley J. This is not a difference at the level of principle.
The third matter concerned the interim orders that I made on 31 January 2024 pursuant to s 37AI of the Act to the effect that all material on the Court file be suppressed. I discussed with counsel whether those orders should be revoked once the orders on the substantive application had been entered. At the request of Mr Martindale, I was persuaded to extend the duration of the interim orders until 5 pm on 19 April 2024 so that the respondents could consider their position concerning any application for leave to appeal.
The fourth matter concerned publication of my primary reasons. I stated at the conclusion of submissions that I would move into open court and formally publish my earlier reasons, correcting for an error that Mr Martindale brought to my attention at [69] where I had mistakenly understood that the proceeding before O’Bryan J was heard in closed court. I disclosed the extent of the amendment and did not receive any submission that it should not be made. When submissions were completed, I took that course, and I formally announced the publication of my reasons in open court subject to an amendment to [69] which I foreshadowed would be effected later in the day.
The matter was then adjourned on the basis that the respondent’s solicitor would engross the approved form of the orders and file them by 5 pm on 12 April 2024. Next followed a series of unsolicited emails from Mr Diakou, the respondents’ solicitor, sent on 8 April 2024, commencing at 12:05 pm. In the first, Mr Diakou said:
Dear Associate,
I refer to the further hearing of this matter this morning before the Honourable Justice McElwaine in which his Honour indicated that he would make orders continuing the interim suppression orders until 19 April 2024, and that the Court would be publishing its reasons on the interlocutory application this afternoon.
We are instructed the Respondents intend to file an application seeking leave to appeal once orders are pronounced on the interlocutory application.
In the circumstances, we respectfully request that the Court refrain from publishing its reasons until 19 April 2024 to allow the respondents to determine the scope of the appeal, which is likely to seek orders that the matters identified in his Honour’s reasons referred to in paragraph (f) of Annexure A to the proposed orders are redacted.
Mr Diakou may have overlooked the fact that I had formally published my reasons earlier in the day in open court. I instructed my associate to respond as follows:
Dear Mr Diakou
I have brought your correspondence to his Honour’s attention.
His Honour considers that the matter was addressed with senior counsel this morning and was resolved. To the extent necessary, his Honour will publish supplementary reasons to explain why.
Mr Diakou did not accept that as a reason for refusing the application. He responded:
Dear Associate,
We refer to His Honour’s indication below.
In the circumstances, we respectfully request His Honour refrain from publishing its reasons on the interlocutory application even for a short period of time to allow the respondents to make an application to another Judge of the Federal Court of Australia for suppression of the reasons pending the filing for leave to appeal because if those reasons are published before any appeal is heard and determined, it would render the appeal nugatory, so far as it seeks the redactions to the reasons that were set out in paragraph (f) of Annexure A.
To this my associate advised Mr Diakou that I was considering the further application. The transcript of the morning’s proceeding then became available. On this issue the transcript confirmed my recollection that I raised the decision in Wu (No 2) with Mr Martindale and after a brief exchange I inquired whether he pressed the orders for redaction of the paragraphs in issue from my judgment and he informed me that he did not. I instructed my associate to respond to Mr Diakou as follows:
Dear Mr Diakou
His Honour has instructed me to provide you with a transcript of the proceeding this morning (attached). The transcript confirms his Honour’s recollection and note to the effect that the point was not pressed in relation to the paragraphs in his Honour’s earlier reasons which mentioned misconduct. In those circumstances, His Honour will not delay the publication of his Honour’s earlier reasons nor further reasons which more fully explain why each of the applications made this afternoon have been refused.
Mr Diakou continued to press the respondent’s claims in these terms:
Dear Associate,
We refer to your further email correspondence below.
I am instructed the respondents press for the redactions to the reasons that were set out in paragraph (f) of Annexure A and given the opportunity, will continue to do so in the appeal.
In the circumstances, we respectfully request His Honour reconsider this matter and refrain from publishing His Honour’s reasons on the interlocutory application for a short period of time to allow the respondents to make an application to another Judge of the Federal Court of Australia.
Once again, I instructed my associate to respond:
Dear Mr Diakou
His Honour is not prepared to reconsider the matter.
It is open to the respondents to bring an urgent application before the duty judge, if they wish to press any application.
My associate was then advised by Mr Diakou that:
I am instructed the respondents will bring an urgent application as per below.
In the circumstances, we respectfully request His Honour refrain from publishing His Honour’s reasons on the interlocutory application to enable the respondents to make the foreshadowed application.
This correspondence should be placed into the correct context. The respondents formulated three iterations of the suppression and non-publication applications. The first sought orders in relation to the entirety of the material on the Court file. The second, which was formulated after I made it clear that the first was plainly contrary to the primary objective to safeguard the public interest in open justice, prescriptively listed the material the subject of the orders by reference to various categories. The amended application was largely refused for the reasons that I published to the parties on 15 March 2024. Rather than dismiss the amended application, I considered it appropriate to provide an opportunity to the respondents to formulate a more limited set of proposed orders by reference to the determination of the general categories in my reasons.
This has been a drawn-out and tortuous process. It needs to be observed that this Court very frequently receives applications, often informally by email to chambers, that seek suppression or non-publication orders seemingly on the assumption made by lawyers that such orders are routine. They are not. They are exceptional applications. The applications are often framed by an asserted need to ensure that allegations made in pleadings or affidavits do not cause reputational damage or expose commercial dealings to public scrutiny. It should not be necessary to repeat what Lee J recently said in Lehrmann v Network Ten Pty Ltd (Livestream) [2023] FCA 1452 at [5]-[6], but I do so because it appears that the message is not getting through:
It is well-established that the openness of the judicial branch of government in this country is a basic democratic right which the courts should actively support: see John J Doyle AC KC, ‘The Courts and the Media: What Reforms are Needed and Why’ (1999) 1 University of Technology Law Review 25, 26–27. The public interest in open justice informs central aspects of common law procedure and is enshrined in numerous substantive rules: James J Spigelman AC KC, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29(2) University of New South Wales Law Journal 147
Specifically, in this and other courts, the open justice principle finds reflection in the requirement to conduct hearings in public and to allow the public to have access to the evidence adduced. To the extent suppression and non-publication orders are required to be made, they are, in this Court, subject to strict conditions and the overriding requirement for the Court to have regard to the “primary objective of the administration of justice”, being “to safeguard the public interest in open justice”: s 37AE of the Federal Court of Australia Act 1976 (Cth) (FCA Act). In a number of recent judgments, some judges, including myself, have deprecated the persistence of practitioners, particularly in commercial matters, seeking swingeing suppression and non-publication orders: see, for example, R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Confidentiality Orders) [2022] FCA 1443; Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719. There also seems to be a persistent notion that mere embarrassment and stress are enough to warrant the making of such an order, although that is simply not the law: John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 (at 142–143 per Kirby P).
The reference by his Honour to R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Confidentiality Orders) [2022] FCA 1443 also deserves repeating at [3]-[5]:
These proceedings provide a further example of the tendency of parties, at least in commercial litigation, to propose overarching confidentiality orders, notwithstanding the demanding nature of the statutory test involved and the relevant onus being described as “a very heavy one”: Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438 (at 442–443 [16] per Madgwick J); see also Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at 663–664 [29]–[31] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ). I cautioned against this course in Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659 (see, generally, at 688 [168]–[170]), remarking (at 688 [169]):
Practitioners may consider it convenient, reasonable or sensible to eschew descending into the detail of identifying what parts of a document are truly confidential (and what parts are not), but adopting such a course in proposing draft orders is inconsistent with the statutory test.
In a similar vein, Thawley J recently remarked that applications of this kind regularly impose a significant burden on the Court and “are becoming increasingly common and increasingly informal”: Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719 (at [23]–[24]). His Honour noted that “proper consideration should be given to whether there is a sound basis for the application and whether the application is supported by sufficient evidence”: Deputy Commissioner of Taxation v State Grid (at [24] per Thawley J).
At the end of the day, public confidence in the administration of justice is enhanced by open justice. This has particular force in proceedings such as these, which affect the rights of non-parties.
The burden of which Thawley J spoke in Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719 is self-evident in this case. The application first came before me in my capacity as duty judge on 31 January 2024. The significant quantity of material required to be considered made it impracticable to determine the application on that day. It was adjourned for hearing. The hearing occupied two days. Substantial time was then spent on drafting my reasons. Considerable time was then afforded to the respondents to reformulate the scope of the orders sought.
The respondents ought to have proceeded, not by reference to their own interests, but with a laser like focus on the primary objective of safeguarding the public interest in open justice and the requirement of necessity as the ground for the making of orders at s 37AG(1)(a) of the Act. The respondents should have understood the heavy burden that was required to be discharged in a case where the primary unpaid tax debt of Maxcon Developments exceeds $21 million, which has not been paid and where in all likelihood it will be wound up as insolvent. That burden extends to the position of the individual respondents who are in receipt of amended assessments, based on the receipt of money from an offshore entity derived from payments made to it by Maxcon Developments, which payments the Commissioner has disallowed as deductible expenses in the business of Maxcon Developments. The individual assessments range between $3.5 million and $6.4 million. There is substantial material that is likely to affect the reputation of the respondents, and the various entities within the corporate group which they control, that will be made public conformably with my reasons and the more limited basis for the application in the event that the interim orders are not extended. The interim orders do not affect the publication of my reasons. How the anodyne references to misconduct in my reasons adds to the likely harm has not been explained.
The additional commercial and reputational harm that I have accepted as justifying some of the orders sought relates to material that is not germane to a member of the public understanding the basis on which the freezing order applications were made and granted by O’Bryan J and raises allegations of misconduct that the respondents deny and which they have not had any opportunity to rebut. In addition, I have accepted that it is proper to make suppression and non-publication orders over a large quantity of material that essentially contains personal information. If attention had been paid by the respondents to these categories of information as properly the subject of an application for suppression or non-publication orders then clearly this proceeding would have been dealt with consistently with the overarching purpose at ss 37M and 37N of the Act.
Something also needs to be said about the applications made by Mr Diakou that I should refrain from publishing my reasons. An application to withhold reasons from publication raises serious questions about the public interest in open justice. In this matter, my reasons were withheld from publication between 15 March and 8 April 2024 to enable the respondents to give consideration to, and if thought fit, reformulate (and very much confine) the scope of the suppression and non-publication orders. On each day of the hearing, I was persuaded to make orders to close the Court pursuant to s 17(4) of the Act because the presence of members of the public would be contrary to the interests of justice in that it would inhibit open and frank submissions with reference to the evidence in support of the respondents’ applications. The presence of members of the public during that period would render inutile the effect of any suppression or non-publication orders that I may have been prepared to make.
The hearing concluded on 8 April 2024 when I informed the parties that I was prepared to make a more limited form of orders, subject to the matters that I have addressed above. Mr Diakou was present in Court when I announced that upon the conclusion of submissions, I would adjourn into open court and formally publish my reasons of 15 March 2024. That course was not opposed by Mr Martindale. I then moved into open court and formally published my reasons, although a copy was not immediately available to the public because of the amendment that I have referred to.
In his correspondence, Mr Diakou repeatedly requests that I should refrain from publishing my reasons, which is quite incorrect: the reasons were formally published on the morning of 8 April 2024. Mr Diakou appears to have overlooked that fact in his various applications to my chambers to prevent that course, which is one obstacle to the applications. It may be that the applications amount to a request to recall my reasons after publication. If so, Mr Diakou did not explain any principled basis for doing so. Judgments and orders may be recalled and vacated prior to entry pursuant to r 39.04 of the Rules though this is not a power “to be exercised for the purpose of re-agitating arguments”: Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300 at 303 per Mason CJ. There is authority that reasons may be recalled to correct ambiguities or misapprehensions (for example Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 1276 (Lee J)) but neither power is available for the purpose of permitting an aggrieved party to consider an appeal or an application for leave to appeal. In another context there may be a proper basis for not delivering reserved reasons for judgment when the Court is informed that the parties have settled and in circumstances where the private interests of the parties in achieving a settlement outweigh the public interest: Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company (2021) 290 FCR 298 at [1]-[11], Allsop CJ . That cannot be extended by analogy in the present case where the purpose of the reasons is to explain to the public why the broad ranging suppression application was refused and why more limited orders may properly be made. In any event, the horse bolted when the reasons were formally published subject to correcting the error at [69].
Recently, in a suppression application case, Kennet J in Commissioner of Taxation v [Respondent] [2023] FCA 1176, was persuaded that his reasons and orders not be published otherwise than to the parties until a specified date and thereafter only in redacted form to permit the respondent time to apply for leave to appeal. That case did not concern publication and then recall of reasons so that they might be suppressed. No application was made before publication of my reasons that I should take a similar course.
There are other obstacles. As I have recorded, senior counsel for the respondents did not press for the making of orders to redact portions of my reasons. And yet, despite that clearly communicated position, Mr Diakou proceeded contrary to it and without a supporting rational explanation. For example, he offered no explanation as to how the respondents might be able to seek leave to appeal from my failure to make orders partially redacting my reasons where those orders were not pressed at the hearing before me.
There are other unsatisfactory aspects about the correspondence from Mr Diakou. One should not engage in argumentative correspondence with chambers. If an application is made, and refused, the proper course to follow is to advise the client of the options that may be available upon a formal application to another judge of this Court and if so instructed, to bring it. That a solicitor has been instructed by his or her client to “press for” redactions not pressed by senior counsel for the client at a hearing provides no justification for the correspondence sent to my chambers by Mr Diakou.
The Central Practice Note: National Court Framework and Case Management (CPN-1) in part addresses the correct approach for communications with chambers staff, amongst others. Clause 15.2 provides:
In their communication with chambers staff of a judge or registrar, unless in the nature of an ex parte application, parties should only communicate with chambers where it is appropriate to do so, and such communications must always be open and uncontroversial. Communications with chambers staff of a judge or registrar must only occur with the prior knowledge or consent of all other parties to the proceeding where any issue of controversy exists or is likely to arise in respect of the issue being addressed. In these circumstances, this is not satisfied by mere copying in of others to the communication, which may be adequate in entirely uncontroversial communications.
Clause 15.3 draws attention to other material that is published on the Court website, including the guide to communications with chambers staff, which by cl 2 provides that all communications with chambers staff should be made courteously and unless in the nature of an ex parte application should “only occur where it is necessary and appropriate to do so” and “be uncontroversial”. The emails sent by Mr Diakou and set out at above were controversial and argumentative and should not have been sent.
The public interest in making available judgments is obvious. Notwithstanding my reasons, the respondents continue to enjoy the benefit of the interim suppression orders made on 24 January 2024 which cover the entirety of the Court file despite my holding that there is no proper basis to make final orders of that breadth. By announcing that I would publish my reasons in open Court on 8 April 2024, by implication the interim orders were varied to that extent. If an application is made for leave to appeal, it is open to the respondents to extend the interim orders or to make a new interim order if there is a proper basis to do so. However, there is no principled basis in support of the application that my reasons of 15 March 2024 should be withheld where senior counsel, recognising the difficulties faced, did not press for the orders that redact portions thereof.
Accordingly, I refused the applications to withhold the publication of my reasons.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. Associate:
Dated: 9 April 2024
SCHEDULE OF PARTIES
VID 1082 of 2023 Respondents
Fourth Respondent:
JOANNE ELZAIN
Fifth Respondent:
CAROL ELZAIN
Sixth Respondent:
MAD MAXX PTY LTD (ACN 151 503 669)
Seventh Respondent:
FEDA ELZAIN
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