Hua Wang Bank Berhad v Commissioner of Taxation (No 6)

[2013] FCA 992

FEDERAL COURT OF AUSTRALIA

Hua Wang Bank Berhad v Commissioner of Taxation (No 6) [2013] FCA 992

Citation:

Hua Wang Bank Berhad v Commissioner of Taxation (No 6) [2013] FCA 992

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

Judges:

PERRAM J

Date of judgment:

30 September 2013

Catchwords:

PRACTICE AND PROCEDURE – Application for non-publication order

Legislation:

Federal Court of Australia Act 1976 (Cth) s 37AG(1)(a)
Taxation Administration Act 1953 (Cth) Pt IVC

Cases cited:

Hearne v Street (2008) 235 CLR 125 cited
Hogan v Australian Crime Commission (2010) 240 CLR 651 cited

Date of hearing:

30 September 2013

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

4

Counsel for the Taxpayers:

Ms R L Seiden SC, Mr J Hyde Page, Mr K Lord

Solicitor for the Taxpayers:

Henry Davis York

Counsel for the Commissioner of Taxation:

Mr D J Fagan SC, Ms J E Jaques, Ms J Gatland

Solicitor for the Respondent Commissioner of Taxation:

Australian Government Solicitor

Counsel for Dr Ross:

Mr C Peadon

Solicitor for Dr Ross:

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:	30 SEPTEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for a non-publication order under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) by Dr Joseph Ross with respect to annexure JD-1 of Ms Justeen Dormer’s affidavit sworn 30 September 2013 be dismissed.

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:	30 SEPTEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for a non-publication order under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) by Dr Joseph Ross with respect to annexure JD-1 of Ms Justeen Dormer’s affidavit sworn 30 September 2013 be dismissed.

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:	30 SEPTEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for a non-publication order under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) by Dr Joseph Ross with respect to annexure JD-1 of Ms Justeen Dormer’s affidavit sworn 30 September 2013 be dismissed.

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:	30 SEPTEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for a non-publication order under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) by Dr Joseph Ross with respect to annexure JD-1 of Ms Justeen Dormer’s affidavit sworn 30 September 2013 be dismissed.

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:	30 SEPTEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for a non-publication order under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) by Dr Joseph Ross with respect to annexure JD-1 of Ms Justeen Dormer’s affidavit sworn 30 September 2013 be dismissed.

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:	30 SEPTEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for a non-publication order under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) by Dr Joseph Ross with respect to annexure JD-1 of Ms Justeen Dormer’s affidavit sworn 30 September 2013 be dismissed.

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:	30 SEPTEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for a non-publication order under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) by Dr Joseph Ross with respect to annexure JD-1 of Ms Justeen Dormer’s affidavit sworn 30 September 2013 be dismissed.

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:	8 OCTOBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Dr Joseph Ross applies for an order pursuant to section 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’) that the contents of the annexure to Ms Dormer’s affidavit of 30 September 2013, known as ‘JD-1,’ not be published or otherwise made available.

2. As the argument was developed, the point was that the receipt by the Commissioner in these proceedings would give him a knowledge of the content of these documents which might then be able to be used by the Commissioner in subsequent proceedings under Pt IVC of the Taxation Administration Act 1953 (Cth) (which I interpolate are not presently on foot) between Dr Ross and the Commissioner.

3. Before the Commissioner could take that step, however, he would be required to obtain from this Court a release of the implied undertaking which will apply to annexure JD-1 in accordance with the principles in Hearne v Street (2008) 235 CLR 125 and therefore, the suggested risk does not substantially arise and I cannot, for that reason, say that the proposed confidentiality order is necessary to prevent prejudice to the proper administration of justice. More is this so when regard is had to the fact that the word, ‘necessary’ in section 37AG(1)(a) of the FCA Act sets a high standard. See: Hogan v Australian Crime Commission (2010) 240 CLR 651.

4. Apart from that basis the material in annexure JD-1 is no doubt financially sensitive and perhaps is capable of causing some degree of discomfort upon its release but Hogan establishes that that is also not a sufficient reason for making an order pursuant to 37AG(1)(a) of the FCA Act. In those circumstances, the application will be refused.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: 

Dated:       8 October 2013