FEDERAL COURT OF AUSTRALIA Deputy Commissioner of Taxation v Kelly (No 2) [2007] FCA 1122 DEPUTY COMMISSIONER OF TAXATION v GRAHAM EDMUND KELLY, SILVERCOURT PROPERTIES PTY LTD AND PALL MALL FINANCE COMPANY LIMITED NSD 1291 OF 2007 ALLSOP J 24 JULY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1291 OF 2007 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Applicant AND: GRAHAM EDMUND KELLY First Respondent SILVERCOURT PROPERTIES PTY LTD Second Respondent PALL MALL FINANCE COMPANY LIMITED Third Respondent JUDGE: ALLSOP J DATE OF ORDER: 24 JULY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 3. No party or any other person present in Court today publish or communicate disclosure of any aspect of the confidential orders of Emmett J dated 9 July 2007 and 11 July 2007, until further order. 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 1291 OF 2007 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Applicant AND: GRAHAM EDMUND KELLY First Respondent SILVERCOURT PROPERTIES PTY LTD Second Respondent PALL MALL FINANCE COMPANY LIMITED Third Respondent JUDGE: ALLSOP J DATE: 24 JULY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is the second judgment in this matter this afternoon. Various confidentiality orders were made by Emmett J on 9 and 11 July 2007. The orders of 9 July 2007 that his Honour made about confidentiality were themselves said to be confidential and redacted versions have been placed on the Court file. I am told by counsel appearing for Nationwide News, Ms Chrysanthou, that the unredacted version of those orders has appeared on the public electronic access arrangements that the Court has whereby it makes its orders available electronically to anyone who seeks access. I propose to investigate how that has occurred and make an order to protect the position in relation to the claim for confidentiality. 2 One further matter of confidentiality now needs to be dealt with. Exhibits were tendered before Emmett J, being the exhibits to an affidavit of Prashant Singh, the affidavit being sworn on 5 July 2007, a redacted version of which has been made available as document 10. Document 11, which has also been made available to the public, is an index of the exhibits to Mr Singh's affidavit. Various titles of exhibits have been flagged out; others have not. In the body of Mr Singh's affidavit, there have been excisions made in the redacted version. Those excisions, I am satisfied, comply in substance with his Honour's orders of 9 July 2007. Amongst the paragraphs excised from the redacted version are paragraphs 74, 83, 84, 88, 115 and 118. Within those paragraphs there is reference to various exhibit numbers in PS122. 3 In those paragraphs PS7, PS9, PS119, PS11, PS17 and PS18 are referred to. The PSs are of course the initials of Mr Singh and they are the exhibit numbers which appear in the left-hand column of document 11 which has been distributed. I, for my part, have difficulty seeing why those exhibits are confidential of themselves. The applicant has made a decision that, as far as he or she is concerned, the disclosure of those exhibits does not prejudice the ongoing operation of Operation Wickenby which was the basis of the totality of the paragraph being excised and not available to the public. 4 However, that being the case, I do not understand Mr Robertson's objection to these exhibits being made available to the public to be based on the integrity of Operation Wickenby. His client may have other grounds to propound. However, I think those grounds need to be made out on my reading of the documents. That is not even a preliminary view; it is just an impression from what they are. I do not know their context and they may for all I know be extremely confidential. For that reason, I think Mr Kelly should bring forward an affidavit which can be dealt with as a confidential affidavit in the first instance, in which he identifies what the confidentiality of those exhibits is in respect of each. That affidavit should not be filed in advance. It can be relied upon at the application. Unless there is any reason why it shouldn't be done, we should deal with that at 2.15 pm on Friday, 27 July 2007. 5 That raises the question of the access of parties to the two volumes. They are two lever arch volumes which have been handed up to the Court and relied on by the Court and tendered in the application. In my view, what should happen is that two separate bundles be created, a bundle of exhibits which on no one's version need be held back from anyone (that can be made available for inspection), being the exhibits not covered directly by his Honour Emmett J's orders of 9 July 2007 or any other existing order, and the documents currently in dispute in respect of which argument will be directed on Friday, 27 July 2007. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 9 August 2007 Counsel for the Applicant: Miss R M Henderson Solicitor for the Applicant: Australian Government Solicitor Counsel for the First and Second Respondents: Mr A Robertson SC Solicitor for the First and Second Respondents: Minter Ellison Counsel for the Third Respondent: Mr D Crennan Solicitor for the Third Respondents: Colin Biggers & Paisley Counsel for Nationwide News Ltd & John Fairfax Ltd (intervening) Ms S Chrysanthou Date of Hearing: 24 July 2007 Date of Judgment: 24 July 2007