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