FEDERAL COURT OF AUSTRALIA Hua Wang Bank Berhad v Commissioner of Taxation (No 16) [2014] FCA 1407 Citation: Hua Wang Bank Berhad v Commissioner of Taxation (No 16) [2014] FCA 1407 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 and 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 Judge: PERRAM J Date of judgment: 19 December 2014 Catchwords: PRACTICE AND PROCEDURE – application to revoke existing non-publication order requiring suppression of final reasons for judgment – where suppression order had been made due to criminal prosecution of third parties – where third parties no longer subject to criminal prosecution but subject to ongoing investigation – whether administration of justice favoured publication of reasons PRACTICE AND PROCEDURE – application for judge to recuse himself from considering application to revoke suppression orders due to adverse credit findings in previous judgment – whether a reasonable person would apprehend that the judge would not bring a fair mind to the resolution of the application Legislation: Federal Court of Australia Act 1976 (Cth) s 37AF Cases cited: Cassaniti v Tax Agents' Board of New South Wales (2009) 179 FCR 1 considered Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied Hogan v Australian Crime Commission (2010) 240 CLR 651 cited Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 cited Date of hearing: 19 December 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicants in NSD 652-656 of 2011 and the Respondents in VID 672 of 2010 and VID 887 of 2010: Mr J Hyde Page Solicitor for the Applicants in NSD 652-656 of 2011 and the Respondents in VID 672 of 2010 and VID 887 of 2010: Henry Davis York Lawyers Counsel for the Respondent in NSD 652-656 of 2011 and the Applicant in VID 672 of 2010 and VID 887 of 2010: Mr DJ Fagan SC Solicitor for the Respondent in NSD 652-656 of 2011 and the Applicant in VID 672 of 2010 and VID 887 of 2010: Australian Government Solicitor Solicitor for Mr Gould and Mr Leaver: Ms C Dixon of Dormer Stanhope 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: 19 december 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's recusal application be dismissed. 2. The orders made on 8 April 2014 be set aside. 3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the reasons for decision in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 not be published to any person other than the parties, Mr Gould and Mr Leaver. 4. Order 3 to remain in force until 11:30 am on 19 December 2014. 5. Mr Gould and Mr Leaver to pay the respondent's costs of the application to set aside the orders of 8 April 2014. 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: 19 december 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's recusal application be dismissed. 2. The orders made on 8 April 2014 be set aside. 3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the reasons for decision in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 not be published to any person other than the parties, Mr Gould and Mr Leaver. 4. Order 3 to remain in force until 11:30 am on 19 December 2014. 5. Mr Gould and Mr Leaver to pay the respondent's costs of the application to set aside the orders of 8 April 2014. 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: 19 december 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's recusal application be dismissed. 2. The orders made on 8 April 2014 be set aside. 3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the reasons for decision in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 not be published to any person other than the parties, Mr Gould and Mr Leaver. 4. Order 3 to remain in force until 11:30 am on 19 December 2014. 5. Mr Gould and Mr Leaver to pay the respondent's costs of the application to set aside the orders of 8 April 2014. 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: 19 december 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's recusal application be dismissed. 2. The orders made on 8 April 2014 be set aside. 3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the reasons for decision in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 not be published to any person other than the parties, Mr Gould and Mr Leaver. 4. Order 3 to remain in force until 11:30 am on 19 December 2014. 5. Mr Gould and Mr Leaver to pay the respondent's costs of the application to set aside the orders of 8 April 2014. 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: 19 december 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's recusal application be dismissed. 2. The orders made on 8 April 2014 be set aside. 3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the reasons for decision in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 not be published to any person other than the parties, Mr Gould and Mr Leaver. 4. Order 3 to remain in force until 11:30 am on 19 December 2014. 5. Mr Gould and Mr Leaver to pay the respondent's costs of the application to set aside the orders of 8 April 2014. 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: 19 december 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The respondent's recusal application be dismissed. 2. The orders made on 8 April 2014 be set aside. 3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the reasons for decision in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 not be published to any person other than the parties, Mr Gould and Mr Leaver. 4. Order 3 to remain in force until 11:30 am on 19 December 2014. 5. Mr Gould and Mr Leaver to pay the applicant's costs of the application to set aside the orders of 8 April 2014. 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: 19 december 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The respondents' recusal application be dismissed. 2. The orders made on 8 April 2014 be set aside. 3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the reasons for decision in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 not be published to any person other than the parties, Mr Gould and Mr Leaver. 4. Order 3 to remain in force until 11:30 am on 19 December 2014. 5. Mr Gould and Mr Leaver to pay the applicant's costs of the application to set aside the orders of 8 April 2014. 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: 19 december 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There are two applications before the Court. They arise in a context where I have just delivered reasons for judgment in the principal proceedings, which involved appeals by a number of taxpayers against assessments which had been issued to them by the Commissioner of Taxation. The first application is brought by the Commissioner and seeks the revocation of orders which were made by me on 8 April 2014 which had the effect of requiring the suppression of the reasons for judgment for a period of 14 days after their publication. The second application is brought by the taxpayers and seeks that I recuse myself from hearing the first application. Also before the Court was Ms Dixon, who helpfully appeared for Mr Gould and Mr Leaver, the latter of which gave evidence in the course of the proceedings. 2 The basis upon which Mr Hyde Page for the taxpayers seeks that I should recuse myself turns upon, as I apprehend it, the contents of the last paragraph of the reasons for judgment, which are at paragraph 485, and in which I direct a copy of my reasons be provided to the Commonwealth Director of Public Prosecutions, the Australian Securities and Investments Commission and the Australian Federal Police, and in the last sentence of which I describe the behaviour revealed in this case as having been 'disgraceful'. He says that, in those circumstances, a reasonable person would apprehend that I would not be able to bring a fair mind to bear upon the disposition of the Commissioner's application for the revocation of the orders made on 8 April 2014. 3 We have it on the authority of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 that where an application based upon apprehended bias is made, it is necessary to delineate a rational connection between the matter which is said to generate the apprehension of bias and a belief or supposition that the judicial officer in question may not bring an even-minded contemplation to the disposition of the proceeding before him or her. Here, the substantive question which arises for judicial determination is whether I should, in the exercise of the powers under s 37AF of the Federal Court of Australia Act 1976 (Cth), revoke orders which I have already made. 4 In the reasons for judgment in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392, I have made adverse findings as to the credit of the people for whom Ms Dixon appears, and a number of officers and persons involved in the administration of the entities for whom Mr Hyde Page appears. As I understand the logic of the argument, it is that those findings reveal an animus on my part towards those particular persons and therefore it is to be expected, or at least anticipated, that I will not bring a fair mind to the resolution of the issue of whether I should revoke the orders made by me on 8 April 2014. I do not think that apprehension reasonably arises. 5 The making of adverse findings of credit by judges against witnesses in proceedings is not unusual. Whilst I would accept that, in a case where I had to assess the credit of those witnesses again, a person may have a reasonable apprehension that I might not bring a fair mind to bear on it as I had already concluded that they were discreditable in certain respects, no question about the credit of these witnesses arises on the disposition of the Commissioner's application. The question which arises is whether the interests of justice require publically published reasons of the Court to be suppressed. 6 That is not a debate which in any way centres upon the credit or otherwise of the individual persons who are named in the judgment. Accordingly, I decline to disqualify myself from hearing the first application. 7 Turning then to the first application, I made orders on 8 April 2014 in the following terms: 1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 and subject to order 2, the reasons for decision relating to the final judgment in these proceedings ("the reasons") are not [to] be published except to the following persons and agencies: 1.1 the parties to these proceedings; 1.2 Mr Vanda Gould; 1.3 Mr Peter Borgas; 1.4 Mr John Leaver; 1.5 the Commonwealth Director of Public Prosecutions; 1.6 the Australian Crime Commission; 1.7 the Australian Federal Police and the legal representatives of any of the above. 2. Notwithstanding order 1, the Commissioner of Taxation ("the Commissioner") may provide the reasons to the following further persons and agencies: 2.1 courts and tribunals in proceedings in which the Commissioner or a Deputy Commissioner of Taxation is a party where, in the opinion of the Commissioner, the reasons may be relevant to those proceedings; 2.2 mediators and other persons involved in alternative dispute resolution procedures in which the Commissioner or a Deputy Commissioner of Taxation is a party where, in the opinion of the Commissioner, the reasons may be relevant to the dispute; and 2.3 taxpayers and their authorised representatives who are or were the subject of audit or review by the Commissioner of Taxation in circumstances where, in the opinion of the Commissioner, the reasons may be relevant to the audit, review or assessment of those taxpayers on the condition that the Commissioner provide a copy of these orders to anyone who is provided with the reasons. 3. Pursuant to s 37AJ of the Federal Court of Australia Act 1976 the above orders are to remain in force for a period of 14 days after delivery of the final judgment in these proceedings. 8 Those orders were made in a particular context: the trial before me of these matters proceeded for many weeks and involved serious allegations made by the Commissioner against individuals named in the judgment. 9 During the course of the proceedings, three of the witnesses in the case were arrested and charged, as I understand it, with serious criminal offences. Whilst the Court was reserved on the reasons for judgment, an application was made by Mr Gould, and I think Mr Leaver as well, that the reasons of the Court should be suppressed for at least a period of 14 days after their publication, so that they could give consideration to applying for further suppression of those reasons if so advised. There was a rational basis for that application and indeed a certain air of common sense about it. The Court unquestionably has the power to control its processes so as not to prejudice the outcome of pending criminal proceedings. 10 On occasions, that power is exercised to stay civil proceedings when criminal proceedings are pending: see, for example, Cassaniti v Tax Agents' Board of New South Wales (2009) 179 FCR 1, where this Court restrained certain disciplinary proceedings against a tax agent because of pending criminal proceedings. It was rational, in that context, at least to permit the opportunity to consider whether there might be some risk if a jury were empanelled that the Board's reasons may be prejudicial if published. 11 However, in this case the criminal proceedings which were brought against Mr Gould and Mr Leaver were withdrawn on 13 May 2014 and there has been, since that time, no direct possibility of risk to the administration of justice posed by the publication of the Court's reasons. 12 There are two complicating matters, however. The first is that it appears, from evidence which was placed before me this morning by Mr Gould's representatives, that there is an ongoing criminal investigation into him. Secondly, consistent with that, there is my recommendation in paragraph 485 that the Commonwealth Director of Public Prosecutions be provided with a set of the reasons, along with certain other regulatory authorities, for consideration as to what, if any, steps they might take. Those two matters form the basis for a submission that although there are no criminal proceedings on foot at the moment, there is at least the possibility in a practical sense that criminal proceedings might be forthcoming. 13 It seems to me that that is a reasonable supposition. It is quite plain from the evidence that Mr Gould continues to be investigated by authorities and I do not think that paragraph 485 of my reasons for judgment, or the reasons taken as a whole, are likely to retard that activity. But the question is whether the fact that there are possible criminal proceedings likely to be laid in the future is sufficient to provide a proper basis for suppressing the reasons for judgment. The administration of justice, it is well established, is something which is to take place in public. The Court's ability to suppress proceedings, which I assume at least for present purposes includes its ability to suppress its own reasons for taking a particular step, is one which is to be only exercised where it is shown to be necessary. See, for example, Hogan v Australian Crime Commission (2010) 240 CLR 651. 14 Here, there are a number of contingencies which seem to arise before there would be any risk to the administration of justice. It is possible that the charges will never be laid. It is certain that they are unlikely to be laid, if they are laid, any time soon. It is inevitable that if they are laid, the committal proceedings will take at least a year, possibly longer. If any of these matters are to come before a jury, whether of the Supreme Court or of the District Court, it seems to me very unlikely that that will happen within a period of at least two years from today. Then there is the fact that prejudicial pre-trial coverage of matters is a well-known phenomenon in the criminal justice sphere, confronted on a daily basis and dealt with, usually, by appropriate warnings and directions to the jury to confine themselves to the consideration of the evidence which is before them. 15 There is also the well-established jurisdiction of the criminal courts to stay proceedings which are before them on the basis of an impossibility of a fair trial. I do not think, in the light of the existence of that jurisdiction and the contingencies to which I have referred, that there is a substantial risk to the administration of justice. Accordingly I am not satisfied, to the very high standard required of me under section 37AF of the Federal Court of Australia Act, that I should keep in force the exceptional order of suppressing the Court's published reasons. In those circumstances, I propose to set aside the orders I made on 8 April 2014. 16 I should say for completeness that Mr Hyde Page submitted to me that the application by the Commissioner had not been made with sufficient time. I am not satisfied that any prejudice arose from any such late making of the application, and I note that the application was in any event foreshadowed by the Commissioner to Mr Gould's solicitors on 11 December 2014. The taxpayers, I should also say, submitted that they also wished to see the reasons suppressed. I do not consider that the taxpayers have any interest in that question whatsoever. There are no pending criminal proceedings against them nor are there likely to be criminal proceedings against companies which are not incorporated in Australia. 17 In those circumstances, I will set aside the orders of 8 April 2014. I order the third parties, Mr Gould and Mr Leaver, to pay the Commissioner's costs of the application to set aside the orders of 8 April 2014. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 8 January 2015