Deputy Commissioner of Taxation v Kelly (No 4)
[2007] FCA 1144
•31 July 2007
FEDERAL COURT OF AUSTRALIA
Deputy Commissioner of Taxation v Kelly (No 4) [2007] FCA 1144
DEPUTY COMMISSIONER OF TAXATION v GRAHAM EDMUND KELLY, SILVERCOURT PROPERTIES PTY LTD AND PALL MALL FINANCE COMPANY LIMITED
NSD 1291 OF 2007ALLSOP J
31 JULY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1291 OF 2007
BETWEEN:
DEPUTY COMMISSIONER OF TAXATION
ApplicantAND:
GRAHAM EDMUND KELLY
First RespondentSILVERCOURT PROPERTIES PTY LTD
Second RespondentPALL MALL FINANCE COMPANY LIMITED
Third Respondent
JUDGE:
ALLSOP J
DATE OF ORDER:
31 JULY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Order 3 as to publishing or communicating disclosure of the orders of Emmett J on 9 and 11 July 2007 made on 24 July 2007 be discharged.
2.If the applicant wishes to object to the publication of the non-redacted orders of Emmett J dated 9 July 2007, the applicant must file a notice of motion on or before 3 August 2007, such notice of motion being returnable for hearing on 9 August 2007 at 4:00 pm.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1291 OF 2007
BETWEEN:
DEPUTY COMMISSIONER OF TAXATION
ApplicantAND:
GRAHAM EDMUND KELLY
First RespondentSILVERCOURT PROPERTIES PTY LTD
Second RespondentPALL MALL FINANCE COMPANY LIMITED
Third Respondent
JUDGE:
ALLSOP J
DATE:
31 JULY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In this matter, I made a suppression order on the afternoon of 24 July 2007 in circumstances where I indicated the content of one paragraph of an order that Emmett J had made confidential. The order that his Honour had made confidential had been placed on the casetrack system immediately upon being made by reason of the well-known efficiency of his Honour’s chambers. He then made, two days later, a confidentiality order in relation to the schedule to those orders. Unfortunately his associate, who had two days previously placed upon the casetrack system the whole of the orders, did not remove the schedule from the casetrack system. The casetrack system is the public availability of orders of the Court and the public display of information about the Court file.
When Ms Chrysanthou was appearing for Nationwide News Limited and John Fairfax Limited, she indicated to me that she did not think the order was confidential because it was on the public website, in effect. This was not an unreasonable proposition from her and counsel for the Commissioner of Taxation did not, in a timely fashion on that afternoon, pick up the problem. Thus, I began to read out the order and counsel for the Commissioner said it was confidential. I have the greatest difficulty in seeing how it is confidential myself.
Two issues arise at this point, however. One is the question of the suppression order that I made on 24 July 2007 which bound anyone in the Court, as well as the parties. And the persons in Court on that day included Ms Moran who writes for The Australian and Mr Evans who writes for the Sydney Morning Herald. They are at present bound by that suppression order.
The Deputy Commissioner of Taxation does not seek that suppression order to be continued, and I do not think it is appropriate to continue that suppression order. Therefore, I discharge order 3, made on 24 July 2007 to the effect that no party, or any other person present in Court today, publish or communicate disclosure of any aspect of the confidential orders of Emmett J dated 9 July 2007 and 11 July 2007 until further order.
That leaves the question of the confidentiality of the 9 July 2007 order. Given my suppression order on that day, I do not see what role the further confidentiality of the order of 9 July 2007 can be. I do not propose to have the orders of 9 July 2007, other than in redacted form, placed on the website for the moment. However, if the Deputy Commissioner of Taxation wishes to prevent the placing of the unredacted order of 9 July 2007 on the website by the end of next week, the Commissioner will need to file a notice of motion on or before Friday 3 August 2007, supported by affidavit material, notice of which motion and which evidence will be given to Nationwide News Limited and John Fairfax Limited to be returnable for hearing at 4 o’clock on Thursday, 9 August 2007.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate:
Dated: 9 August 2007
Counsel for the Applicant: Miss R M Henderson Solicitor for the Applicant: Australian Government Solicitor Counsel for the First and Second Respondents: Mr A Robertson SC Solicitor for the First and Second Respondents: Minter Ellison Counsel for the Third Respondent: Mr D Crennan Solicitor for the Third Respondents: Colin Biggers & Paisley Counsel for Nationwide News Ltd & John Fairfax Ltd (intervening) Ms S Chrysanthou Date of Hearing: 31 July 2007 Date of Judgment: 31 July 2007
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