Kilgour v Commissioner of Taxation [2022] FCA 1487

Federal Court of Australia

Kilgour v Commissioner of Taxation [2022] FCA 1487 File numbers: QUD 99 of 2022 QUD 100 of 2022 QUD 101 of 2022 QUD 102 of 2022

Judgment of: LOGAN J

Date of judgment: 3 November 2022

Catchwords: PRACTICE AND PROCEDURE – application for discovery from a non-party – whether non-party discovery should be ordered – where documents originally sought by way of subpoena – where appropriate course to bring an application for non-party discovery – held: the practice of seeking the issue of subpoenas to require the production by non-parties of documents prior to trial ought to cease PRACTICE AND PROCEDURE – application for discovery from a non-party – considerations relevant to the exercise of discretion under r 20.23 of the Federal Court Rules 2011 (Cth) – application granted PRACTICE AND PROCEDURE – third-party application for suppression order prohibiting publication or disclosure of documents produced by non-parties pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1975 (Cth) – whether further obligation described in Hearne v Street (2008) 235 CLR 125 sufficient to protect interest of non-party – where documents produced are commercially sensitive – where interim confidentiality orders necessary to bring home confidentiality obligations to legal advisors and prospective witnesses – interim confidentiality orders made

Legislation: Federal Court of Australia Act 1976 (Cth) ss 23, 37AB, 37AE, 37AF, 37AG Income Tax Assessment Act 1997 (Cth) s 116-30 Taxation Administration Act 1953 (Cth) Pt IVC Federal Court Rules 2011 (Cth) r, 2.32, r 20.23 Supreme Court Rules (Qld), order 35, rule 28 Uniform Civil Procedure Rules 1999 (Qld) r 243(2), r 244