Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Print National Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 3 Hearing dates: 8 November 2012 and 10 December 2012 Decision date: 08 January 2013 Jurisdiction: Revenue Division Before: N S Isenberg, Judicial Member Decision: The application for a suppression order is refused. Catchwords: Application for suppression order; open justice; public hearing; section 75 Administrative Decisions Tribunal Act 1997. Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997 Chiropractors and Osteopaths Act 1991 Court Suppression and Non-publication Orders Act 2010 Payroll Tax Act 2007 Taxation Administration Act 1996 Cases Cited: Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 Paul v Minister for Immigration and Citizenship [2011] AATA 831 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 Shi v Migration Agents Registration Authority [2008] HCA 31 Walton v Momot [1997] NSWCA 334 Category: Interlocutory applications Parties: Print National Pty Ltd (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: A Henskens SC and P Knowles (Applicant) S Kaur-Bains (Respondent) Bilbie Dan (Applicant) Crown Solicitor (Respondent) File Number(s): 126112 REASONS FOR DECISION Background 1The substantive proceedings relate to Payroll Tax Assessments made by the Chief Commissioner of State Revenue ("Chief Commissioner") against all the applicants, other than Print National Australia Pty Ltd, Killara 7 Pty Ltd, Sundara Pty Ltd, Rugama Trading Pty Ltd and TLT Nominees Pty Ltd, and 4 other companies which are not parties to these proceedings, in relation to payroll tax liability for the period 1 July 2003 to 30 June 2010. The Chief Commissioner asserts that the companies were grouped under the relevant provisions of the Taxation Administration Act 1996 until 30 June 2007 and thereafter under the Payroll Tax Act 2007. 2The applicants objected to the assessments. The objection was disallowed by the Chief Commissioner and the applicants seek a review of the disallowance by this Tribunal. 3The applicants also applied to the Tribunal for a stay of the decision under review ("the Stay Application"). 4At the hearing of the Stay Application, counsel for the applicants made an oral application for suppression ("the Suppression Application") under s. 75(2)(c) of the Administrative Decisions Tribunal Act 1997 ("ADT Act") in relation to paragraphs 17-28 of the affidavit of David James made on 1 November 2012 (applicants' Exhibit A1 in the proceedings) ("the James ADT Affidavit") and the documents in tabs 12-18 of exhibit "DAJ-1" to the James ADT Affidavit (which paragraphs and documents are referred to as "the Documents"). 5The Chief Commissioner opposed the Suppression Application. 6This decision is in relation to the Suppression Application. Submissions 7The applicants' counsel described the information contained in the Documents as "sensitive commercial information" which relates to the private financial affairs of the applicants. Counsel submitted that the information is not open to the public and should not be made available to the public, and that there is a capacity to cause commercial harm if the information is disseminated to the public. 8Counsel for the Chief Commissioner opposed the Suppression Application on the grounds that most of the contents of the Documents was contained in an affidavit of Mr David James made 8 March 2012 (the James Court Affidavit) which had been read in the Supreme Court in proceedings number 2012/76332 (the "Supreme Court Proceedings") and had been referred to in the judgment of His Honour Mr Justice White on 16 March 2012 in those proceedings. 9Counsel for the applicants submitted that the information in tabs 16-18 of exhibit DAJ-1 was not before White J. 10Counsel for the Chief Commissioner acknowledged that the contents of paragraphs 24 and 27 of the James Court Affidavit were not before White J but submitted that the contents were not commercially sensitive. Counsel also acknowledged that the information in Tab 13 was not before White J. Legislation and legal principles 11The Suppression Application was made under s. 75(2)(c) of the ADT Act. Section 75 of the ADT Act relevantly states: "75 Proceedings on hearing to be conducted in public (1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. (2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal." 12A similar but not identical provision is found in s. 35 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"). "35 Hearings to be in public except in special circumstances ... Public hearing (1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public. (1A)... Private hearing etc. (2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order: (a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and (aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and (b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and (c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding. (3) In considering: (a) whether the hearing of a proceeding should be held in private; or (b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted; the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted." 13In Walton v Momot [1997] NSWCA 334 the Court of Appeal allowed an appeal against an order suppressing publication of the name of a chiropractor who faced disciplinary proceedings in the Chiropractors and Osteopaths Tribunal. " Section 46(3) of the Chiropractors and Osteopaths Act 1991 provided:" In conducting an enquiry ... the Tribunal is, unless it otherwise directs, to be open to the public and may conduct the proceedings as it thinks fit." Handley JA (Priestly JA and Grove AJA agreeing), stated: "The general principle provided for in s 46(3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule. This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts,.." 14In John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 Spigelman CJ stated at [18] (Handley JA and Campbell AJA agreeing): "The principle of open justice is one of the most fundamental aspects of the system of justice in Australia and the conduct of proceedings in public is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public." 15This common law principle has been enacted in the Court Suppression and Non-publication Orders Act 2010, s. 6 of which states: "6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice." 16The grounds for making an order under s. 6 are set out in s. 8: "8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice." 17In the decision of the Appeal Panel of this Tribunal in QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59 (proceedings which included the Tribunal sitting in closed session without having informed the applicant or his legal representative) reference was made to the judgment of Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, the Appeal Panel stated: "21 Pochi concerned s 35 of the Administrative Appeals Tribunal Act 1975 (Cth), which is similar in some respects to, but contains significant differences from, s 75 of the New South Wales Act. While that must be borne in mind, Brennan J's judgment in Pochi clearly reveals the applicable principles. His Honour said at page 272-273. 'Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to reserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly. An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing an injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest ... Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one...." 18In State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 ("Justice Health v Dezfouli") the Appeal Panel stated: "Discussion of the applicable law 46 In order to canvass fully the issues raised in this appeal, we consider it important to refer to a wider range of authorities than were cited in the judgment under appeal and the parties' submissions. We note that while numerous decisions on suppression orders have been made by the Tribunal at first instance, the nature and scope of the statutory power to make such orders have been discussed at appellate level on relatively few occasions. 19The Appeal Panel Tribunal noted that s. 35 of the AAT Act was comparable to s. 75 of the ADT Act and continued: "49 In Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164, a decision relating to section 35 of the AAT Act, North and Downes JJ (at [34]) placed strong emphasis on the necessity of treating the 'actual words' of the relevant legislation as 'the primary point of reference'. They pointed out that the Administrative Appeals Tribunal, like this Tribunal, had no common law or inherent jurisdiction because it was not a court. They quoted the following passage from the recent judgment of Hayne and Heydon JJ in Shi v Migration Agents Registration Authority [2008] HCA 31 ("Shi v MARA") at [92]:- "As this court has so often emphasised...in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions. Reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes..." 50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word 'desirable', the phrase 'for any other reason' and the word 'may'. These indicate that the purpose (or purposes) to be served by a suppression order may be 'any ... reason' (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is 'desirable' and that the actual making of the order is not mandatory but within the Tribunal's discretion. 51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 ("John Fairfax") at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is 'really necessary to secure the proper administration of justice in proceedings before it'. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act. 52... 53 ... the courts have applied a criterion of 'necessity', such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally..." 20At [55] and [56] the Tribunal agreed with counsel for the appellant that John Fairfax "along with a number of other cases dealing with common law powers to make pseudonym orders, expressly applied different principles to those embodied in s. 75(2) of the ADT Act" and "..should not be treated as directly applicable to" the proceedings before it." 21However the Tribunal also stated at [57]: "It does not follow, however, that the broad principle of open justice ... has no relevance to our decision..." and continued: "58 ... subsection (2) of section 75 begins with the word 'however' and is expressed as an exception to a statutory formulation, in subsection (1), of the principle of open justice. This principle may not receive explicit emphasis in the way that it does in the concluding paragraph of section 35(3) of the ADT Act...But it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2)." "61 ... it is unthinkable that the word 'desirable' in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is 'desirable' under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting." 22The Appeal Panel then referred to four further decisions for guidance as to principles to be applied, two them made under s. 75(2) of the ADT Act and two under s. 35(2) of the AAT Act. The Appeal Panel concluded its discussion of the applicable law by stating at [81] that it was ": "..difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made...; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order." 23The Tribunal also expressed an opinion at [82] as to the applicability of the criterion referred to at [13] above enunciated by the Court of Appeal in Walton v Momot as follows. "In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition." 24The issue of hearings before a tribunal being held in public was before the Full Court of the Federal Court in 2009 in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 ("ASIC v AAT"). In their judgment, Downes and Jagot JJ observed (Moore J agreeing): 74 ..., we think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised "sparingly". .. 75 Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged". 25More recently Senior Member Britton of the AAT in Paul v Minister for Immigration and Citizenship [2011] AATA 831 stated: 20 "Before making an order under s 35 of the AAT Act the Tribunal must satisfy itself that it is desirable to do so by reason of: the confidential nature of any evidence, or the confidential nature of any matter, or any other reason. 28 While I accept that the concerns raised by the applicant are real, I am not persuaded that of themselves they provide a proper basis to depart from the "norm" established by s 35." Consideration 26I have considered the whole of the James ADT Affidavit, the tabs in exhibit DAJ-1 containing the balance of the Documents, the James Court Affidavit and the judgment of White J referred to at [8] above. 27The Documents contained in tabs 12-18 of exhibit DAJ-1 to the James ADT Affidavit are documents relating to the finances of various applicants. 28The information in paragraphs 17-28 of the James ADT Affidavit refers to the contents of tabs 12-18 of exhibit DAJ-1 and to other aspects of the financial affairs of various applicants. 29In relation to paragraphs 17-28 of the James ADT Affidavit I find that the information in paragraphs 17, 18, 25 and 26 and substantial information from paragraphs 20 and 21 was given in evidence in the Supreme Court Proceedings or referred to in White J's judgment. 30In relation to the documents in tabs 12-18 of exhibit DAJ-1 to the James ADT Affidavit I find that substantial information in tabs 12 and 14 is referred to in paragraphs 17 and 21 of the James Court Affidavit, which counsel has informed the Tribunal was read in the Supreme Court in March 2012. 31I find no evidence that the information in paragraphs 19, 22, 23, 24, 27 and 28 of the James ADT Affidavit or in tabs 13 or 15 - 18 of exhibit DAJ-1 was either read in open court in the Supreme Court Proceedings or is contained in the judgment of White J. 32I accept that some of the information contained in the Documents may be commercially sensitive to one or more of the applicants. I accept that it is possible, as the applicants' counsel submitted, that a public dissemination of the information may have the capacity to cause commercial harm. 33However I note from my findings in [29] and [30] that substantial information from the Documents was read in court during the Supreme Court Proceedings or was referred to in White J's judgment in March 2012, some eight months before the Suppression Application was made. No evidence was provided to the Tribunal to indicate that any commercial harm was occasioned as a result of such information being made available to the public for this period. 34I have had regard to the legislation and judgments referred to above and particular regard to: a) section 75 (1) of the ADT Act "If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public." although from s. 75(2) the Tribunal may, if satisfied that it is desirable to do so for any reason, prohibit or restrict the publication of evidence or matters contained in documents before the Tribunal; b) the importance placed by the High Court in Shi v MARA on paying close attention to relevant statutory provisions when applying legislation ([19] above); c) the points of relevance outlined by the Appeal Panel in Justice Health v Dezfouli at [81], in particular points (a),(b),(c),(e) and (f), and the statement at [82] that (for a s. 75(2) order to be made) "we would not dispute that...the circumstances should be 'special' or 'out of the ordinary'"; and d) Downes and Jagot JJ in ASIC v AAT at [75]: "Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties.... facts which parties would not wish to be published and which may disadvantage them are frequently published... The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently.." 35I do not find that the information or the circumstances detailed in the Documents is 'special', 'out of the ordinary' or 'exceptional'. Nor am I satisfied that it is desirable in the public interest, or by reason of confidentiality or for any other reason, to prohibit or restrict the publication of the contents of the Documents. Decision 36I refuse the Suppression Application. 37In case the applicants wish to appeal against this decision, I have not referred in these reasons to the specific information contained in the Documents. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 January 2013