FEDERAL COURT OF AUSTRALIA

Hua Wang Bank Berhad v Commissioner of Taxation (No 13) [2013] FCA 1095

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.    The contents of the interlocutory application filed in Court on 16 October 2013;

b.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.    the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.    the transcript of the interlocutory hearing; and

f.    Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.    Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.    The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.    The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.    The contents of the interlocutory application filed in Court on 16 October 2013;

b.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.    the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.    the transcript of the interlocutory hearing; and

f.    Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.    Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.    The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.    The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.    The contents of the interlocutory application filed in Court on 16 October 2013;

b.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.    the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.    the transcript of the interlocutory hearing; and

f.    Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.    Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.    The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.    The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.    The contents of the interlocutory application filed in Court on 16 October 2013;

b.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.    the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.    the transcript of the interlocutory hearing; and

f.    Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.    Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.    The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.    The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.    The contents of the interlocutory application filed in Court on 16 October 2013;

b.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.    the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.    the transcript of the interlocutory hearing; and

f.    Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.    Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.    The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.    The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.    The contents of the interlocutory application filed in Court on 16 October 2013;

b.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.    the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.    the transcript of the interlocutory hearing; and

f.    Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.    Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.    The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.    The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

a.    The contents of the interlocutory application filed in Court on 16 October 2013;

b.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

c.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

d.    the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

e.    the transcript of the interlocutory hearing; and

f.    Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.    Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.    The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.    The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 16 October 2013 I made an order closing the Court so that an application could be made by Mr Tod McGrouther to set aside a subpoena to give evidence. Subsequently I made orders suppressing, on an interim basis, the publication of the materials placed before me on the application and the transcript of the application.

2    The power to make an interim order that kind is conferred by s 37AI of the Federal Court of Australia Act 1976 (Cth) (‘the Act’). Subsequently, in circumstances explained in Hua Wang Bank Berhad v Commissioner of Taxation (No 12) [2013] FCA 1091 the Commissioner decided not to call upon the subpoena rendering the application otiose. The question remains what should be done in respect of the suppressed aspects of the application.

3    I propose to make the interim orders for a more extended duration. The basis upon which I do so is that such a course is necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a) of the Act). By s 37AJ the Court must specify the duration of the order. In this case the parties agreed at my suggestion that the order should expire on 22 October 2033.

4    It is not possible to identify in these reasons why the proper administration of justice requires this course to be taken. Mr McGrouther has been identified in open court as a proposed witness and I am not satisfied that any orders I could make would undo that situation. Revelation of the nature of Mr McGrouther’s application would defeat its very purpose.

5    It is nevertheless appropriate that I give reasons for reaching the conclusion I have. I will do this in a separate judgment which will not be publicly published. During the course of this application a party appeared who will only be identified in those reasons.

6    The orders I propose to make are:

    1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):

        a.    The contents of the interlocutory application filed in Court on 16 October 2013;

        b.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising five pages plus annexures and filed in Court on 16 October 2013;

        c.    The contents of the affidavit of Justeen Dormer sworn 16 October 2013 comprising two pages and filed in Court on 17 October 2013;

        d.    the written submissions of counsel for the applicant in the application to set aside the subpoena, Mr Dhanji, dated 16 October 2013;

        e.    the transcript of the interlocutory hearing; and

        f.    Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

not be disclosed to anyone other than the parties and their legal representatives, Mr McGrouther and his legal representatives, and the additional party referred to in Hua Wang Bank Berhad v Commissioner of Taxation (No 14) [2013] FCA 1096.

2.    Pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth) the above order is to remain in force until 22 October 2033.

3.    The items referred to Order 1 a – d and 1 f are to be placed in a sealed receptacle to be placed with the Court file which is not to be opened without the leave of a Judge of this Court until 22 October 2033.

4.    The ground upon which these orders are made is that they are necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

Associate:

Dated:    22 October 2013