The Magazine Company and Commissioner of Taxation (Taxation)

This matter concerned an application by The Magazine Company for release from an implied undertaking regarding the use of transcript and affidavit evidence from previous proceedings in Federal Court defamation proceedings. The Commissioner of Taxation was also a party. The application sought to use this material, which was relevant to a defence in the Federal Court proceedings, subject to certain redactions and pseudonyms.

The primary legal issue before the Court was whether to modify or lift the confidentiality orders, both express and implied, that had been made in the previous proceedings to permit the use of the transcript and affidavit evidence in the current Federal Court matter. This involved determining whether the specific purpose for which the documents were sought had been sufficiently identified and whether the proposed redactions and use of pseudonyms adequately protected the privacy of individuals involved.

The Court reasoned that the confidentiality orders were made "until further order" and therefore could be modified. It accepted the applicant's proposal, supported by the respondent, that the names of taxpayers and other information reasonably capable of identifying them should be redacted or replaced with pseudonyms. The Court noted that it was not always possible to predict all future purposes for which documents might be needed, but in this instance, the documents and the purpose for their release had been identified. The Court found no reason why the existing orders should not be modified to allow the material to be relied upon in the defamation proceedings.

The Court ordered that the application be granted, with the terms of the order requiring the redaction of information reasonably capable of identifying the taxpayers. It also ordered that the names of the applicants and their directors, and any information capable of identifying them, be redacted or replaced with pseudonyms, with the exception of Mr. Gould. The Court further ordered that if it became desirable in the Federal Court proceedings to refer to pseudonyms granted to Mr. Gould in previous Tribunal proceedings, the Federal Court could be informed of those pseudonyms.