FEDERAL COURT OF AUSTRALIA

Richardson v Commissioner of Taxation [2006] FCA 1306

GRAHAM FREDERICK RICHARDSON v COMMISSIONER OF TAXATION

NSD 1375 OF 2006

ALLSOP J

27 SEPTEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.          Pursuant to Order 46 rule 6(4), the document indexed as document 4 on the Court file be available for inspection by the public.

2.          Order 2 of 28 August 2006 be amended by deleting the words ‘file and’ and by adding the words ‘such document is to be provided to the associate to Allsop J by the same date.’

3.          The application for any access to that document be stood over to a date to be fixed.

4.          If either party wishes to oppose the making of an order under O46 r6 (4) that the public may inspect the document the subject of order 2 made on 28 August 2006 as amended above, submissions and supporting evidence in support thereof are to be served and provided to the associate to Allsop J on or before 14 November 2006.

5.          That the hearing on 6 October 2006 be vacated.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter the applicant seeks an order pursuant to Order 46 rule 6 subrule 4 that the document marked 4 on the file, being the statement of facts, issues and contentions filed on behalf of the respondent Commissioner, not be made available to the public. A number of members of the press have made requests for access to the court file to the extent that the Rules of the Court and any orders that I make would allow that access.

2                     On 28 August 2006 orders were made by consent that provided for the Commissioner to file and serve his statement of facts, issues and contentions on or before 3 October 2006. That was done and that document is on the file. It was filed on 21 September 2006. Pursuant to the same consent orders, the applicant is to file and serve his statement of facts, issues and contentions on or before 7 November 2006. I invited argument from counsel as to whether or not I should treat document 4 as akin to a pleading and therefore make it available, or as akin to an affidavit and not make it available. Both parties provided me with helpful submissions and I am grateful for that.

3                     There has been a debate between a Judge of this Court commenting upon reasons for judgment of two Judges in the Supreme Court as to the approach to take. Rares J in Llewellyn v Nine Network Australia Pty Limited [2006] FCA 836 took the view that Santow J and Barrett J in two cases in the Supreme Court had adopted an incorrect approach. I do not need to add to any of that discussion for the moment. It is sufficient for me to say that the rule that I am dealing with is the rule that Rares J dealt with, and the approach that I am taking is based on a view which is contained in and underlies Order 46 rule 6; that is that, prima facie, a document which stands as a pleading, that is a document which defines the controversy which this Court in the exercise of judicial power seeks to quell, should be made public. The reason for this approach is that not only should the public hear what is said at the final hearing of a case or at the arguing of a motion, but also the public is entitled to understand the nature of the controversy which the Court is charged with quelling. It is an important governmental function of the third arm of government and the public is entitled to understand its processes and what is happening.

4                     I take the view, both by the nature of the document and by its contents, that document 4, though not a pleading strictly so called, is sufficiently like a pleading in the conduct of review of an appealable objection that this case is; that it should be treated as a pleading and that I should order pursuant to Order 46 rule 6 subrule 4 that the document be made available upon request.

5                     That leaves outstanding the question of the application by the applicant to vary the orders that were made by consent to amend his obligation from an obligation to file and serve his statement of facts, issues and contentions on or before 7 November 2006, to one that is expressed as merely “serving” his statement of facts, issues and contentions on or before 7 November 2006. I indicated on the last occasion that submissions should be filed next week about that. On reflection, I think that course may be productive of unnecessary expense to the parties, which is obviously to be avoided if it can be.

6                     Therefore, what I propose to do is to amend the orders that I have made on 28 August 2006 to delete the words “file and” and to add the words “such document to be provided to the Associate to Allsop J” by the same date, and I will stand over the application for any access to that document to a date to be fixed; and further order that if either party wishes to oppose the making of an order under Order 46 rule 6 subrule 4 that the public may inspect that document, submissions and any supporting evidence in support of that position are to be served and provided to my Associate on or before 14 November.

7                     I make those orders and 6 October is vacated.

Associate:

Dated: 5 October 2006