SM Employment Pty Ltd v Commissioner of Taxation
[2019] FCA 464
•1 April 2019
FEDERAL COURT OF AUSTRALIA
SM Employment Pty Ltd v Commissioner of Taxation [2019] FCA 464
File number: QUD 172 of 2019 Judge: LOGAN J Date of judgment: 1 April 2019 Catchwords: PRACTICE AND PROCEDURE – where parties have reached a compromise agreement – whether such agreement overtakes the decision under review – whether application should be dismissed – suppression orders – whether a suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) ought to be made – where interim suppression order had been made – whether interim order should be continued after the dismissal of the application – effect of the disclosure of the applicant’s director’s and his family’s medical conditions Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Court of Australia Act 1976 (Cth) s 37AF
Date of hearing: 1 April 2019 Registry: Queensland Division: General Division National Practice Area: Taxation Category: Catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr B W J Kidston Solicitor for the Applicant: Mahoneys Solicitor for the Respondent: Ms S Auld of Australian Government Solicitor ORDERS
QUD 172 of 2019 BETWEEN: SM EMPLOYMENT PTY LTD
Applicant
AND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
1 APRIL 2019
THE COURT ORDERS THAT:
1.The application be dismissed.
2.Until further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), access, without redaction of the same, to such of the documents filed here as contains a reference to the medical conditions of Mr Jarrod Sierocki, his wife or children be restricted to the parties and their legal advisors, if any, and not otherwise be published in an unredacted form without the leave of the Court or a judge.
3.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
The substantive application in this proceeding is for the review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), of a decision by the respondent, the Commissioner of Taxation (Commissioner), via one of his deputies, to refuse to accept an offer made by the applicant corporation, SM Employment Pty Ltd (the company), for the payment of a debt owed to the Commonwealth and payable to the Commissioner by it. That debt is comprised of, in the main, superannuation guarantee charge debts, together with statutory increments, and forms part of what is termed an integrated client account for the company.
At the first case management hearing a fortnight ago, the company appeared, by leave, by its director, Mr Jarrod Sierocki. It has appeared today by counsel and solicitor. In the fortnight which has passed since the first case management hearing, there have been discussions between the company and the Commissioner in relation to the payment of the amount owed to the Commonwealth. I have been informed today by the parties that an arrangement satisfactory to the Commissioner, in relation to repayment, has been reached.
The reaching of a view as to a satisfactory arrangement is a value judgment for the Commissioner in his administration of the various taxation laws. It has doubtless been informed by considerations, which would include the possibility, which may never come to pass, of course, that the Commissioner may be receiving a preferential payment, in the event that the company were to be wound up.
However that may be, the impact of the arrangement for present purposes is that the decision of 5 February 2019 has been overtaken by events. That does not necessarily mean that there would be no utility in the judicial review proceeding. There would be, if there were some issue of systemic importance, ongoing utility in relation to its lawfulness; however, I was informed on behalf of the company, by its counsel, that there is no such issue. It was, in those circumstances, accepted on behalf of the company that there was no further utility in the judicial review proceeding, a position which was also promoted by the Commissioner. The parties have consequentially reached agreement that the judicial review proceeding should be dismissed with no order as to costs.
There then remains a question as to whether there ought to be a continuance of the order made on 18 March 2019, whereby until today or further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), access, without redaction of the same, to such of the documents filed herein as contains a reference to the medical conditions of Mr Jarrod Sierocki, his wife or children be restricted to the parties and their legal advisors, if any, and not otherwise be published in an unredacted form without the leave of the Court or a judge.
On behalf of the company, application was made orally for a continuance of that order, without restriction as to time. The Commissioner’s position was neither to consent to nor oppose the making of such an order. The Commissioner did, though, quite appropriately, not require that there be any formal notice of motion served, regarding, as I do, the oral application made by the company by its counsel as sufficient.
Prima facie, proceedings in the exercise of the judicial power of the Commonwealth must be conducted in public. There is, though, provision in s 37AF for a restriction in respect of publication. The circumstances in which such an order might be made are inherently dependent on the circumstances of a particular case.
I had occasion, on the previous case management hearing, to observe firsthand the stresses to which Mr Sierocki was so obviously subject. Inferentially, these are directly related to, and probably symptomatic of, a particular medical condition. I can see no interest of justice which would be served by unrestricted access to the details of that condition, or, for that matter, those of his wife or children, particularly having regard to the disposition of this case. Indeed, it may very well be that unrestricted disclosure would be subversive of the consensual position reached by the parties as to the disposition of the case, and, for that matter, the underpinning of that consensual disposition, which is the reaching of a repayment agreement satisfactory to the Commissioner. It seems to me that the furtherance of that agreement would possibly be put in jeopardy by any unrestricted disclosure.
For these reasons, I am persuaded that it is apt in this case to continue the order made on 18 March 2019 on an indefinite basis. The restriction necessarily will be subject to the ability of the Court or a judge for cause to vary or, for that matter, cease the restriction on publication.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 4 April 2019
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