LHRC v Deputy Commissioner of Taxation [2014] FCA 388

FEDERAL COURT OF AUSTRALIA

LHRC v Deputy Commissioner of Taxation [2014] FCA 388 Citation: LHRC v Deputy Commissioner of Taxation [2014] FCA 388

Parties: LHRC v DEPUTY COMMISSIONER OF TAXATION

File number: NSD 365 of 2014

Judge: PERRY J

Date of judgment: 23 April 2014

Legislation: Federal Court of Australia Act 1976 (Cth), ss 37AE, 37AF, 37AG, 37AI

Cases cited: Hua Wang Bank Berhad v Commissioner of Taxation (No 13) [2013] FCA 1095

Date of hearing: 16 April 2014

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 4

Counsel for the Applicant: Mr J Hyde Page

Solicitor for the Applicant: Kreston Dormers

Counsel for the Respondent: Mr D J Fagan SC

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 365 of 2014

BETWEEN: LHRC

Applicant

AND: DEPUTY COMMISSIONER OF TAXATION

Respondent

JUDGE: PERRY J DATE OF ORDER: 23 APRIL 2014 WHERE MADE: SYDNEY

THE COURT NOTES THAT:

1. This proceeding is subject to a suppression order. 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 365 of 2014

BETWEEN: LHRC

Applicant

AND: DEPUTY COMMISSIONER OF TAXATION

Respondent

JUDGE: PERRY J DATE: 23 APRIL 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter was listed urgently before Justice Nicholas as Duty Judge on 10 April 2014. At that hearing, his Honour made orders on an interim basis pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (the Act) suppressing the publication of any documents filed or orders made in the proceeding and any transcript of the proceeding that would disclose defined information. An order made under s 37AI is an order made in the exercise of the Court's discretion pending a determination of the merits of the application for a suppression or non-publication order which protects the subject-matter of that application in the interim. However, where such an interim order is made, the Court must then determine the merits of the application as a matter of urgency: s 37AI(2). This requirement for the merits to be determined urgently reflects the importance of the business of the Court being conducted in public in a democratic society governed by the rule of law save where, exceptionally, the circumstances warrant a departure from the principles of open justice: see s 37AE of the Act. 2 On 16 April 2014 I made an order closing the Court so that an application could be made by the applicant for a suppression order under s 37AF of the Act as to leave the Court open would have risked disclosure of the information in respect of which the suppression order was sought. 3 Both parties made submissions as to why they considered that it was appropriate and necessary for the order sought to be made and for it to endure until 16 April 2034 subject to any further order of the Court. I was also referred by counsel for the Deputy Commissioner of Taxation to the publicly available reasons of Perram J in Hua Wang Bank Berhad v Commissioner of Taxation (No. 13) [2013] FCA 1095 where his Honour found that it was appropriate to make similar orders under s 37AF for a similar period. In the circumstances, I was satisfied that the orders should be made on the ground that they are necessary to prevent prejudice to the proper administration of justice, as I specified in the order in accordance with s 37AG(1)(a) and (2) of the Act. I reached this view notwithstanding that a primary objective of the administration of justice is to safeguard the public interest in open justice: sees 37AE of the Act. 4 It is not possible to identify in these reasons why the proper administration of justice requires this course to be taken. Revelation of the nature of these proceedings would undermine the purpose of the orders. However, I consider that it is appropriate for me to give those reasons in a separate judgment which will not be publicly published. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.