Federal Court of Australia ACN 154 520 199 Pty Ltd (in liquidation) v Commissioner of Taxation (Suppression Orders) [2020] FCA 1791 Appeal from: ACN 154 520 199 Pty Ltd (In Liq) and Commissioner of Taxation (Taxation) [2019] AATA 5981 File number: NSD 53 of 2020 Judgment of: PERRAM J Date of judgment: 15 December 2020 Catchwords: PRACTICE AND PROCEDURE – application for suppression order under s 37AF Federal Court of Australia Act 1976 (Cth) ('the Act') – whether suppression order necessary to prevent prejudice to proper administration of justice under s 37AG(1)(a) of the Act Legislation: Federal Court of Australia Act 1976 (Cth) s 37AF and s 37AG Division: General Division Registry: New South Wales National Practice Area: Taxation Number of paragraphs: 6 Date of hearing: 28 September 2020 Solicitor for the Applicant: Mr S Spackman of Polczynski Robinson Counsel for the Respondent: Mr A Berger Solicitor for the Respondent: Australian Government Solicitor ORDERS NSD 53 of 2020 BETWEEN: ACN 154 520 199 PTY LTD (IN LIQUIDATION) Applicant AND: COMMISSIONER OF TAXATION Respondent order made by: PERRAM J DATE OF ORDER: 15 DECEMBER 2020 THE COURT ORDERS THAT: 1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) ('the Act'), the following documents in this proceeding are not to be disclosed to anyone except the parties to the proceedings and their legal representatives, the agency referred to in the confidential affidavit of 30 July 2020 and its lawyers, the Court and Court Staff: (a) The contents of items 1622, 1623 and 1624 of the Appeal Book. (b) Pages 85 to 88, 105, 146-148, 150-151, 159, 163, 177, 180, 181 of the transcript of the hearing on 27-29 May 2020. (c) Footnote 82 of the Applicant's Outline of Submissions filed on 29 April 2010 at 4.50 pm. (d) Footnote 82 of the Applicant's Outline of Submissions with hyperlinks filed on 4 June 2020 at 8.43 am. (e) The first sentence in paragraph one of the Applicant's submission dated 4 June 2020 headed Applicant's Submissions in Response to the Schedule of Evidence served by the Respondent on 29 May 2020, filed on 4 June 2020 at 4.10 pm. (f) The following parts of the 21 page table referring to 'Evidence cited by the Tribunal' which the Respondent emailed to the Court on 29 May 2020: (i) Page 5: the row relating to paragraph 157 of the Tribunal's reasons. (ii) Page 7: the row said to be relating to paragraph 162 of the Tribunal's reasons. (iii) Page 8: paragraphs 2 and 3 of the row relating to paragraph 167 of the Tribunal's reasons. (iv) Page 9: the row relating to paragraph 171 of the Tribunal's reasons. (g) The part of item 1627 in the Appeal Book which comprises order 7 of the Tribunal's orders of 2 August 2018. (h) The part of the Index to the Appeal Book which refers to items 1622, 1623, 1624 and 1627. (i) The confidential affidavits filed in support of the Interlocutory Application made on 30 July 2020, 11 September 2020 and 24 September 2020. (j) The letter dated 25 June 2020 from the AGS addressed to the Associate of the Honourable Justice Perram. (k) The email dated 15 July 2020 from Polczynski Robinson to the Associate of the Honourable Justice Perram and its three attachments. (l) The email dated 28 August 2020 from Mr Spackman to the Associate of the Honourable Justice Perram and the attached affidavit of Mr Spackman of 28 August 2020. 2. Order 1 does not operate so as to prevent a party or its legal representatives or the agency referred to in the confidential affidavit of 30 July 2020 and its lawyers, from disclosing documents that were already in that party's possession before the commencement of these proceedings, where such disclosure is otherwise permitted by law. 3. Pursuant to s 37AJ of the Act and subject to further order of the Court order 1 is to remain in force until 1 January 2035. 4. The correspondence referred to in order 1(f), (j), (k) and (l) be uploaded into the Court file, if it has not already been. 5. The correspondence referred to in order 1(f), (j), (k) and (l) be permanently deleted from the Court's systems except to the extent that it is in the Court file. 6. No access is to be had to the Court file by any person without the approval of Perram J. 7. The hard copy versions of the three confidential affidavits delivered to my chambers be destroyed. 8. These reasons not be published other than to the parties, and to be kept confidential to the parties, until 9.30 am on 18 December 2020. 9. Prior to 9.30 am on 18 December 2020 the parties are to inform my Chambers on their views as to whether the reasons should not be published in this form. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 This is an application by the Commissioner of Taxation ('the Commissioner') to suppress certain parts of the appeal record. Before the Administrative Appeals Tribunal ('the Tribunal') and in this Court some of the material had related to investigative steps which had been undertaken by an agency. It is not necessary to explain any more of those steps save to say that revelation of what they were or who was undertaking them would impact deleteriously on their efficacy. Further than that, it is not possible to go. The parts of the Court record which are involved in the present application are: Parts of the Appeal Book in this Court; Parts of the transcript of the hearing before this Court; Parts of the written submissions before this Court; Parts of correspondence and attachments addressed to the Court on 29 May 2020, 25 June 2020, 15 July 2020 and 28 August 2020; and Three affidavits provided to my chambers in support of the present application. 2 The Court has the power to suppress the publication of any material which would identify the agency or the nature of its investigation and this is so regardless of the form in which the information is expressed: s 37AF Federal Court of Australia Act 1976 (Cth) ('the Act'). Each of the five sets of materials above is capable of being made the subject of an order under s 37AF. The power in s 37AF can only be exercised on the grounds set out in s 37AG of the Act. The relevant ground here is s 37AG(1)(a) that 'the order is necessary to prevent prejudice to the proper administration of justice'. 3 On the present application five affidavits were read. Two of these were open affidavits of the Commissioner's solicitor, Mr Morris. In his second affidavit Mr Morris gave evidence that the orders which were made in the Tribunal are not publicly available and are not in the public domain. 4 The remaining three affidavits were closed affidavits. These affidavits identified the agency, the nature of its activities in relation to the underlying subject matter which gave rise to the appeal and their relation with certain other proceedings. Without saying more, I am satisfied that the disclosure of any of the material referred to above would significantly prejudice the administration of justice. An order under s 37AG(1)(a) is therefore appropriate. The Commissioner seeks an order that the material remain suppressed until 1 January 2035, a period of 14 years. I accept that the prejudice to the administration of justice which would result from disclosure of the material is likely to continue to persist for a substantial period of time. Although I would ordinarily baulk at such a long period, in this case I accept that it is justified. 5 In making these orders I accept, of course, the very substantial public interest in justice being seen to be done. When the Full Court delivered its reasons, the parties were provided with a copy of the reasons before they were made publicly available to ascertain whether any of the material which relates to this application, had been disclosed in the reasons. Neither party suggested that it had. It is relevant to note, therefore, that the Court reached its conclusions without relying on any of the material. Whilst this does not extinguish the need for public disclosure, it does tend to reduce it somewhat. None of the material with which this application is concerned was material to the Court's deliberations. 6 The Commissioner also sought an order that the suppression orders not prevent a party or its legal representatives (or the relevant agency) from disclosing documents in their possession before the commencement of the proceedings where such disclosure is otherwise permitted by law. I accept that this is an appropriate carve-out. I will make the orders sought in the Commissioner's interlocutory application. I will make six additional directions: (1) That the correspondence referred to in order 1(f), (j), (k) and (l) be uploaded into the Court file, if it has not already been. (2) That the correspondence referred to in order 1(f), (j), (k) and (l) be permanently deleted from the Court's systems except to the extent that it is in the Court file. (3) No access is to be had to the Court file by any person without the approval of Perram J. (4) The hard copy versions of the three confidential affidavits delivered to my chambers be destroyed. (5) These reasons not be published other than to the parties, and to be kept confidential to the parties, until 9.30 am on 18 December 2020. (6) Prior to 9.30 am on 18 December 2020 the parties are to inform my Chambers on their views as to whether the reasons should not be published in this form. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate: Dated: 15 December 2020