Hua Wang Bank Berhad v Commissioner of Taxation (No 13)

Case •

[2013] FCA 1095

•

22 October 2013

FEDERAL COURT OF AUSTRALIA

Hua Wang Bank Berhad v Commissioner of Taxation (No 13) [2013] FCA 1095

Citation: Hua Wang Bank Berhad v Commissioner of Taxation (No 13) [2013] FCA 1095
Parties:

HUA WANG BANK BERHAD v COMMISSIONER OF TAXATION

BYWATER INVESTMENTS LIMITED v COMMISSIONER OF TAXATION

CHEMICAL TRUSTEE LIMITED v COMMISSIONER OF TAXATION

SOUTHGATE INVESTMENT FUNDS LIMITED v COMMISSIONER OF TAXATION

DERRIN BROTHERS PROPERTIES LIMITED v COMMISSIONER OF TAXATION

DEPUTY COMMISSIONER OF TAXATION v HUA WANG BANK BERHAD

DEPUTY COMMISSIONER OF TAXATION v CHEMICAL TRUSTEE LIMITED, DERRIN BROTHERS PROPERTIES LIMITED, BYWATER INVESTMENTS LIMITED
File numbers: NSD 653 of 2011
NSD 652 of 2011
NSD 654 of 2011
NSD 655 of 2011
NSD 656 of 2011
VID 672 of 2010
VID 887 of 2010
Judge: PERRAM J
Date of judgment: 22 October 2013
Catchwords: EVIDENCE – Application for suppression order – Whether order necessary for the proper administration of justice
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AG, 37AI, 37AJ
Cases cited:

Hua Wang Bank Berhad v Commissioner of Taxation (No 12) [2013] FCA 1091 cited

Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096 cited
Date of hearing: 16, 17 October 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 6
Counsel for the Taxpayers: Ms R L Seiden SC, Mr J Hyde Page, Mr G Antipas
Solicitor for the Taxpayers: Henry Davis York
Counsel for the Commissioner of Taxation & Deputy Commissioner of Taxation: Mr D J Fagan SC, Ms J E Jaques, Ms J Gatland
Solicitor for the Commissioner of Taxation & Deputy Commissioner of Taxation: Australian Government Solicitor
Counsel for Mr McGrouther: Mr H K Dhanji SC
Solicitor for Mr McGrouther: Kreston Dormers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 653 of 2011
BETWEEN:

HUA WANG BANK BERHAD
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

22 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.The contents of the interlocutory application filed in Court on 16 October 2013;

b.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.the transcript of the interlocutory hearing; and

f.Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 652 of 2011
BETWEEN:

BYWATER INVESTMENTS LIMITED
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

22 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.The contents of the interlocutory application filed in Court on 16 October 2013;

b.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.the transcript of the interlocutory hearing; and

f.Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 654 of 2011
BETWEEN:

CHEMICAL TRUSTEE LIMITED
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

22 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.The contents of the interlocutory application filed in Court on 16 October 2013;

b.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.the transcript of the interlocutory hearing; and

f.Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 655 of 2011
BETWEEN:

SOUTHGATE INVESTMENT FUNDS LIMITED
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

22 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.The contents of the interlocutory application filed in Court on 16 October 2013;

b.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.the transcript of the interlocutory hearing; and

f.Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 656 of 2011
BETWEEN:

DERRIN BROTHERS PROPERTIES LIMITED
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

22 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.The contents of the interlocutory application filed in Court on 16 October 2013;

b.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.the transcript of the interlocutory hearing; and

f.Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

VID 672 of 2010
BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Applicant
AND:

HUA WANG BANK BERHAD
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

22 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.The contents of the interlocutory application filed in Court on 16 October 2013;

b.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.the transcript of the interlocutory hearing; and

f.Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

VID 887 of 2010
BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Applicant
AND:

CHEMICAL TRUSTEE LIMITED
First Respondent

DERRIN BROTHERS PROPERTIES LIMITED
Second Respondent

BYWATER INVESTMENTS LIMITED
Third Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

22 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.The contents of the interlocutory application filed in Court on 16 October 2013;

b.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.the transcript of the interlocutory hearing; and

f.Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 653 of 2011
BETWEEN:

HUA WANG BANK BERHAD
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 652 of 2011
BETWEEN:

BYWATER INVESTMENTS LIMITED
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 654 of 2011
BETWEEN:

CHEMICAL TRUSTEE LIMITED
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 655 of 2011
BETWEEN:

SOUTHGATE INVESTMENT FUNDS LIMITED
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 656 of 2011
BETWEEN:

DERRIN BROTHERS PROPERTIES LIMITED
Applicant
AND:

COMMISSIONER OF TAXATION
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

VID 672 of 2010
BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Applicant
AND:

HUA WANG BANK BERHAD
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

VID 887 of 2010
BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Applicant
AND:

CHEMICAL TRUSTEE LIMITED
First Respondent

DERRIN BROTHERS PROPERTIES LIMITED
Second Respondent

BYWATER INVESTMENTS LIMITED
Third Respondent

JUDGE:

PERRAM J

DATE:

22 OCTOBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 16 October 2013 I made an order closing the Court so that an application could be made by Mr Tod McGrouther to set aside a subpoena to give evidence.  Subsequently I made orders suppressing, on an interim basis, the publication of the materials placed before me on the application and the transcript of the application.

  2. The power to make an interim order that kind is conferred by s 37AI of the Federal Court of Australia Act 1976 (Cth) (‘the Act’). Subsequently, in circumstances explained in Hua Wang Bank Berhad v Commissioner of Taxation (No 12) [2013] FCA 1091 the Commissioner decided not to call upon the subpoena rendering the application otiose. The question remains what should be done in respect of the suppressed aspects of the application.

  3. I propose to make the interim orders for a more extended duration. The basis upon which I do so is that such a course is necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a) of the Act). By s 37AJ the Court must specify the duration of the order. In this case the parties agreed at my suggestion that the order should expire on 22 October 2033.

  4. It is not possible to identify in these reasons why the proper administration of justice requires this course to be taken.  Mr McGrouther has been identified in open court as a proposed witness and I am not satisfied that any orders I could make would undo that situation.  Revelation of the nature of Mr McGrouther’s application would defeat its very purpose. 

  5. It is nevertheless appropriate that I give reasons for reaching the conclusion I have.  I will do this in a separate judgment which will not be publicly published.  During the course of this application a party appeared who will only be identified in those reasons. 

  6. The orders I propose to make are:

    1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

    a.The contents of the interlocutory application filed in Court on 16 October 2013;

    b.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

    c.The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

    d.the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

    e.the transcript of the interlocutory hearing; and

    f.Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

    not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

    2.Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

    3.The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

    4.The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: 

Dated:       22 October 2013

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Cases Citing This Decision

1

LHRC v Deputy Commissioner of Taxation [2014] FCA 388
Cases Cited

2

Statutory Material Cited

1

Hua Wang Bank Berhad v Commissioner of Taxation (No 12) [2013] FCA 1091
Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096