Federal Court of Australia Youssef v Commissioner of Taxation (De-anonymisation) [2024] FCA 1033 Appeal from: QQRK v Commissioner of Taxation [2023] AATA 3493 File number: NSD 1430 of 2023 Judgment of: PERRAM J Date of judgment: 5 September 2024 Catchwords: PRACTICE AND PROCEDURE – anonymisation of party names – where Applicants' names anonymised in proceeding before the Administrative Appeals Tribunal under s 14ZZE of Taxation Administration Act 1953 (Cth) – where anonymisation replicated in Federal Court proceeding without suppression order Legislation: Federal Court of Australia Act 1976 (Cth) s 37AF Migration Act 1958 (Cth) s 91X Taxation Administration Act 1953 (Cth) s 14ZZE Cases cited: [Redacted] v Commissioner of Taxation [2024] FCA 185 A v Federal Commissioner of Taxation [2016] FCA 1307 Commissioner of Taxation v [Respondent] [2023] FCA 1176 Deputy Commissioner of Taxation v Lee [2022] FCA 1307 Deputy Commissioner of Taxation v Wu [2024] FCA 250 Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; 296 FCR 272 Division: General Division Registry: New South Wales National Practice Area: Taxation Number of paragraphs: 16 Date of hearing: Determined on the Court's own motion Solicitor for the Applicants: Fortis Law Solicitor for the Respondent: Australian Government Solicitor ORDERS NSD 1430 of 2023 BETWEEN: GEORGE YOUSSEF First Applicant DANNY YOUSSEF Second Applicant AND: COMMISSIONER OF TAXATION Respondent order made by: PERRAM J DATE OF ORDER: 4 SEPTEMBER 2024 THE COURT ORDERS THAT: 1. The name of the First Applicant be amended to George Youssef. 2. The name of the Second Applicant be amended to Danny Youssef. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 This proceeding concerns an appeal from the Administrative Appeals Tribunal ('the Tribunal') in a taxation matter brought pursuant to Part IVC of the Taxation Administration Act 1953 (Cth) ('the TAA'). The Tribunal was seized with the review of a reviewable objection decision within the meaning of s 14ZZE of that Act. That provision requires the Tribunal, which otherwise generally operates in public, to be conducted in private if a party so requests. Section 14ZZE reflects a policy choice of the Parliament to protect the privacy of a person's taxation affairs. In this case, the review applicants (being the Applicants in this Court) did request that the Tribunal proceeding be conducted in private. In accordance with s 14ZZE, the Applicants' names were anonymised to QQRK and WHKY. The Applicants were unsuccessful in the review application and it is that failure which has given rise to the present proceeding in this Court. 2 Section 14ZZE does not apply in this Court. On 24 November 2023, the solicitors for the Applicants filed a notice of appeal in this Court which named the Applicants as QQRK and WHKY. The matter was accordingly entitled QQRK and anor v Commissioner of Taxation on the Court file and was given proceeding number NSD1430/2023. 3 On 1 December 2023 Mr Ben Butler, a journalist, lodged an access request with the Court. At that stage, the appeal had not yet been docketed to a judge pending determination of whether it should be heard by one judge or three. Mr Butler followed up the request on 13 December 2023. He was told by the Court's Registry on 19 December 2023 that 'a party has indicated an intention to apply for a suppression order or non-publication order over material in the document to which access is sought', that the matter would shortly be docketed, and that he would be notified when this occurred. Mr Butler's access request does not appear on the Court file although on the internal-facing Court file there is a folder entitled 'Access Requests' which is empty. 4 The matter was docketed to me on 12 February 2024 and I directed that a case management hearing take place at 9.30 am on 22 February 2024. That hearing was administratively cancelled on 21 February 2024 when the parties were able to work out in advance a set of orders by consent which provided for suitable steps leading to a hearing. I made orders in Chambers that day fixing a hearing date of 9 September 2024 and granting the Applicants leave to file a supplementary (i.e. amended) notice of appeal by 14 March 2024. No application was made or foreshadowed for the suppression of the identity of the Applicants and no part of the orders made on 21 February 2024 contemplated such an application. 5 On 20 March 2024, the Applicants filed an amended notice of appeal altering the substantive grounds of appeal. More pertinently for present purposes, the amended notice of appeal also struck through the anonymised pseudonyms by which the Applicants had hitherto been known in the proceeding, QQRK and WHKY, and replaced them in underline with their names, Mr George Youssef and Mr Danny Youssef. The filing of this document was accepted by the Court's electronic court filing system without demur. 6 In late July the parties sought to amend the timetable. Orders giving effect to this were made by Downes J in Chambers on 31 July 2024 without the necessity of any attendance in Court. Downes J was looking after the cases in my docket on my behalf whilst I was on leave. The orders made did not touch on the topic of any application for a suppression order. 7 On 3 September 2024, whilst preparing the matter for its hearing next week, my Associate noticed that the amended notice of appeal had de-anonymised the proceeding. Acting with admirable dispatch he arranged for the title of the proceeding to be amended from QQRK and anor v Commissioner of Taxation to Youssef and anor v Commissioner of Taxation. Having done so, he was contacted by the Registry as a result of its conduct of daily sweeps of the Court file to detect instances of de-anonymisation. The existence of this practice no doubt springs from s 91X of the Migration Act 1958 (Cth) which requires this Court not to publish, in proceedings relating to an application for or cancellation of a protection visa, the name of the person to whom the visa relates. The rationale behind s 91X is that if the person is returned to their country of origin, the fact that they have applied for a protection visa is unlikely to redound to their benefit upon their repatriation. Disclosing the name of such a person is therefore highly undesirable, unlawful and sometimes fatal. The number of anonymised protection visa cases in this Court is very high and probably constitutes numerically the single largest cohort of cases it hears. The anonymisation of taxation cases is, on the other hand, a comparatively rare occurrence. 8 About 2.5 hours after the de-anonymisation took place the Registry informed my Associate that, in accordance with its practice in protection visa cases, the matter could be de-anonymised by an order made by me. At this point, to preserve any anonymisation (if it was truly warranted) required the re-anonymisation of the proceeding pending the urgent determination of whether it was in fact warranted. I therefore directed my Associate to re-anonymise the proceeding and to send an email to the parties indicating that at first glance it did not appear that any suppression of this file was warranted. I asked the Applicants to indicate to me whether they wished to be heard on the issue by 9.30 am on Wednesday 4 September 2024. 9 But the course of litigation is never smooth. During the 2.5 hours that the proceeding was de-anonymised the case was viewed through the Commonwealth Courts Portal by Mr Butler who saw for the first time that the Applicants were the two Messrs Youssef. This discombobulated Mr Butler sufficiently for him to write to the Court's media officials the following email: I've been following this case since it was filed under pseudonyms in November last year. It is set for hearing next Monday. Some time in the past few days – possibly today – the case caption has been changed and it now shows up on Comcourts with the actual names of the applicants, George Youssef and Danny Youssef. I have the following questions: 1. There are no orders visible on the Comcourts listing directing that the caption change from pseudonyms to actual names. When did the case caption change and why? 2. There are also no orders visible on the listing directing that the matter be heard under a pseudonym. I have previously been told that it is common practice for appeals from tribunals where a pseudonym was used to initially be filed using the same pseudonyms, but the court has never produced a policy document setting this out. Do you now have one? 3. In any event, for a pseudonym to continue past an initial hearing there should be a pseudonym order made. None has been made here, despite two administrative listings over a period of more than six months. Why did the court continue to protect the identities of these applicants for such a long time without an order? 4. Based on press archives, it appears George Youssef could fairly be described as [redacted]. Why is the Federal Court in the business of supressing the identities of such people for long periods of time? 10 I have redacted part of paragraph 4 because it contains an allegation against Mr Youssef which does not arise in this proceeding, which is not made by the Commissioner and upon which Mr Youssef has not been heard. It is nevertheless negative in nature. 11 On the morning of Thursday 4 September 2024 I was informed by the Applicants that they did not wish to be heard on any order de-anonymising the proceeding and I made orders formally de-anonymising them. 12 Some general matters arise out of this. First, there is an obvious tension between the Court's legal obligation to anonymise all protection visa applications and its non-obligation in that regard in tax cases. This case has exposed that parties should not be entitled to file an anonymised notice of appeal in a tax case unless they see the duty judge and obtain an anonymisation order. At this stage, the only step I will take is to bring to the Registry's attention the problem which this case has brought to light. 13 Secondly, there is the problem of Mr Butler's lost access request of 1 December 2023 which, to be polite, seems to have slipped through the cracks. Had that access request been brought to my or my Chambers' attention, it is likely that the current circumstance would not have arisen since the Applicants would have been brought to the position of having to show their colours on any suppression application much sooner. However, this case has exposed a deficiency in the docketing system which relates to access requests filed prior to docketing. I will bring this to the attention of the National Operations Registrar so that the procedures may be modified to ensure that this does not occur in the future. 14 Thirdly, and here I speak only for myself, despite the judges of this Court being besieged by a sea of anonymised protection visa cases, there is particular need to ensure that tax appeals are not anonymised without an application being made to the duty judge for a suppression order. Although Mr Butler's email is expressed with robust frankness, he is right to suggest that the proceeding should not have been anonymised without a Court order. Thus, whilst it would be desirable for the Registry to prevent anonymised tax appeals from ever being filed in the first place, I must bear my own portion of the blame for not detecting when the consent orders came across my desk that this case had no business being anonymised without an order. 15 Fourthly, suppression orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) are rarely obtained in taxation appeals but it is not impossible. Cases where they have been made include A v Federal Commissioner of Taxation [2016] FCA 1307 ('A v FCT'), Commissioner of Taxation v [Respondent] [2023] FCA 1176 and the unsuccessful application for leave to appeal from that decision, [Redacted] v Commissioner of Taxation [2024] FCA 185. There remains some controversy about the precise basis of the decision in A v FCT. Indeed, whilst it seems to be accepted that A v FCT is correctly decided there appear to be three distinct interpretations of its reasoning. These are the view expressed by Bromwich J in Deputy Commissioner of Taxation v Lee [2022] FCA 1307 at [35], the view expressed by Kennett J in Commissioner of Taxation v [Respondent] at [24]-[25] and the view expressed by the Full Court in Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; 296 FCR 272 at [94] (echoed by Thawley J in Deputy Commissioner of Taxation v Wu [2024] FCA 250 at [56]). The present case does not give rise to an occasion to work out what the Court in A v FCT intended. 16 For the reasons set out above I made orders de-anonymising the proceeding on 4 September 2024. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate: Dated: 5 September 2024