Richardson v Commissioner of Taxation of the Commonwealth of Australia

[2006] FCA 1262

FEDERAL COURT OF AUSTRALIA

Richardson v Commissioner of Taxation of the Commonwealth of Australia [2006] FCA 1262

GRAHAM FEDERICK RICHARDSON v COMMISSION OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
NSD 1375  OF 2006

ALLSOP J
22 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1375  OF 2006

BETWEEN:	GRAHAM FEDERICK RICHARDSON Applicant
AND:	COMMISSION OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	22 SEPTEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for access to the Court file by Vanda Carson be granted as to documents 1 and 2 on the file and refused as to document 3 on the file.

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 1375  OF 2006

BETWEEN:	GRAHAM FEDERICK RICHARDSON Applicant
AND:	COMMISSION OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	ALLSOP J
DATE:	22 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this proceeding a third party, Vanda Carson, a journalist from the Australian newspaper has made a request for access to documents.  The description of documents requested in the form used to make the request was as follows:

   “application (19/7) list of docs (28/8) all other docs that are publicly available”

2. I have given the parties an opportunity to put submissions to me as to the request.  Neither party has any objection to the grant of media access to the application and the notice of appearance, being documents numbered 1 and 2 on the file. 

3. Both the applicant and the respondent put to me that the list, being document number 3 on the file, should not be made available to Ms Carson.  The applicant submitted that it should be viewed as a list of documents analogous to a list of documents given on discovery and so falling within Order 46 rule 6(3)(d).  Order 46 rule 6 sets out a regime for third party inspection of the Court file as follows:

   “(1)A person may search in the Registry for, and inspect, a document in a proceeding that is specified in subrule (2), unless the Court, or a Judge, has ordered that the document is confidential.

   (2)For the purposes of subrule (1), the documents are:

   (a)  an application or other originating process;

   (b)  a notice of appearance;

   (c)  a pleading or particulars of a pleading;

   (d)  a notice of motion or other application;

   (e)  a judgment;

   (f)  an order;

   (g)  a written submission;

   (h)  a notice of appeal;

   (i)  a notice of discontinuance;

   (j)  a notice of change of solicitors;

   (k)  a notice of ceasing to act;

   (l)  in a proceeding to which Order 78 applies:

   (i) an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993 ;

   (ii) an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar;

   (m)  reasons for judgment.

   (3)Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding:

   (a)  an affidavit (other than an affidavit mentioned in subparagraph (2) (l) (i));

   (b)  an unsworn statement of evidence filed in accordance with a direction given by the Court or a Judge;

   (c)  interrogatories or answers to interrogatories;

   (d)  a list of documents given on discovery;

   (e)  an admission;

   (f)   evidence taken on deposition;

   (h)  a subpoena or document lodged with the Registrar in answer to a subpoena for production of a document;

   (i)   a judgment, order, or other document that the Court has ordered is confidential.

   (4) Except with the leave of the Court or a Judge, or with the permission of the Registrar, a person who is not a party to a proceeding must not inspect any document in the proceeding that is not referred to in subrule (2) or (3).

   (5) Except with the leave of the Court or a Judge, a party to a proceeding or other person must not search in the Registry for, or inspect:

   (a)  a transcript of the proceeding; or

   (b)  a document filed in the proceeding to support an application for an order that a document, evidence or thing be privileged from production.

   (6)A party to a proceeding or other person may copy a document in the proceeding if:

   (a)  the document is produced by the Court, a Judge or the Registrar for inspection by the party or other person; and

   (b)  the Registrar gives the party or other person permission to copy the document; and

   (c)  the party or other person has paid the prescribed fee.

   (7)In this Rule:

   Native Title Registrar has the same meaning as in Order 78.
   Register of Native Title Claims has the same meaning as in the Native Title Act 1993.”

4. The respondent submitted that since the document was not of a kind referred to in Order 46 rule 6 (3) or (2), it should be treated as covered by Order 46 rule 6(4).

5. On either approach, the document would not be made available without the leave of the Court or a Judge.  The list contains the documents referred to in Order 52B rule 5(2)(a)(i)-(iv):  the applicant’s income tax return for the year ended 30 June 1998, notices of assessment, adjustment sheet and amended notice of assessment for that year, a taxation objection and a notice of appealable objection decision and accompanying reasons.

6. I have not yet heard submissions on behalf of Ms Carson about the question of access.  But at this stage, subject to any submission that may be put, I do not propose to grant access to the list, at least for the present.

7. That said, the spirit of Order 46 rule 6(2) is that, amongst other thing, the documents which identify the nature of the controversy tendered for resolution by the Court should generally be made available, unless they are confidential.  The issues here, as is obvious, concern the taxation affairs of the applicant.

8. Whilst in one sense a citizen’s taxation affairs are a matter between him or her and the Tax Office, it is not clear to me that the issues raised in the proceeding if included in a document such as a pleading would be confidential to warrant an order under Order 46 rule 6(1).

9. It is therefore appropriate for me to indicate in order that the nature of the proceeding before the Court be able to be understood, that the issues in the proceedings will concern whether the taxpayer can demonstrate that the taxable income calculated by the Commissioner in the relevant assessment was excessive.  That income, according to the Commissioner, included a calculation based on the premise that the applicant was the beneficial owner of a significant amount of money in a foreign bank account that the Commissioner said represented income or a net capital gain that should have been included in the assessable income of the taxpayer for the year ended 30 June 1998.

10. The order of the Court will be:

    The application for access to the Court file by Vanda Carson be granted as to documents 1 and 2 on the file and refused as to document 3 on the file.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:       22 September 2006

Date of Judgment: 22 September 2006