Federal Court of Australia

Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 1) [2022] FCA 577

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice:

(a)    The following information in the Affidavit of David Keng Yew Chu sworn 15 February 2022 not be published, made available or disclosed to any person:

(i)    The tax file number of the first respondent on page 8 of Exhibit DC-1.

(ii)    Bank account details of the second respondent on page 596 of Exhibit DC-1.

(iii)    The document titled [REDACTED] at pages 505-544 of Exhibit DC-1 and the reference to this document at item 16 of Annexure A.

(iv)    The words [REDACTED] from lines 3 to 4 in paragraph 28.

(v)    The words [REDACTED] and [REDACTED] from lines 1 and 2 respectively of paragraph 29.

(vi)    The words [REDACTED] from lines 3 to 5 in subparagraph 29(b).

(vii)    The letter from [REDACTED] to [REDACTED] in pages 566-567 of Exhibit DC-1, the reference to this letter at item 18 of Annexure A, and paragraphs 41-43.

(viii)    The letter from [REDACTED] to [REDACTED] contained in pages 571-576 of Exhibit DC-1 and the reference to this letter at item 20 of Annexure A.

(ix)    The letter from [REDACTED] to [REDACTED] in pages 568-570 of Exhibit DC-1 and the reference to this letter at item 19 of Annexure A.

(x)    The letter from [REDACTED] to [REDACTED] in pages 578-584 of Exhibit DC-1 and paragraph 46 of the Affidavit.

(b)    The following information in the Affidavit of Khaled Metlej sworn 15 February 2022 not be published, made available or disclosed to any person:

(i)    The letter from White & Case to Craddock Murray Neumann Lawyers at pages 3-4 of the Affidavit.

2.    Pursuant to section 37AJ of the Act:

(a)    Order 1(a)(i) shall operate until such time as s 8WB of the Taxation Administration Act 1953 (Cth), or legislation to substantially equivalent effect, no longer exists;

(b)    Order 1(a)(ii) to (x) and Order 1(b) shall operate until midnight on 1 March 2026 or further order of the Court.

3.    Pursuant to s 37AF of the Act, on the ground that it is necessary to prevent prejudice to the proper administration of justice:

(a)    The unredacted version of these orders and reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of the Court.

(b)    Within 7 days the parties provide to the Associate to Thawley J a proposed redacted version of these orders and reasons for judgment which the parties consider is appropriate for publication.

4.    Within 7 days the respondents file and serve a copy of the affidavits of Mr Chu sworn 15 February 2022 and Mr Metlej sworn 15 February 2022 containing redactions to reflect orders 1(a) and 1(b) of these orders.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    By an interlocutory application filed on 11 March 2022, the first respondent (State Grid) sought suppression and non-publication orders pursuant to section 37AF(1)(b)(iv) of the Federal Court of Australia Act 1976 (Cth) in respect of evidence filed by the applicant (Deputy Commissioner) in this proceeding, being an affidavit of David Keng Yew Chu sworn on 15 February 2022, an affidavit of Khaled Metlej sworn on 15 February 2022 and the annexures and exhibits to those affidavits.

2    State Grid advanced two alternative sets of orders in its interlocutory application. State Grid sought a non-publication order in respect of the affidavit of David Keng Yew Chu sworn on 15 February 2022 and in respect of the affidavit of Khaled Metlej sworn on 15 February 2022. Alternatively, it sought (in substance) a non-publication order in respect of certain identified confidential information in the affidavits.

3    The affidavits were filed and relied upon by the Deputy Commissioner at an urgent hearing seeking freezing orders before Perry J on 15 February 2022: Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited [2022] FCA 139.

4    On 22 February 2022, the Court received an application for non-party access to the affidavits.

5    On 14 March 2022, State Grid filed its interlocutory application.

6    The Deputy Commissioner agreed that it was appropriate for there to be a non-publication order with respect to the tax file number (TFN) contained in the affidavit of Mr Chu, but otherwise neither consented to nor opposed the application.

7    State Grid relied on section 37AF(1)(b)(iv) of the Act which provides:

37AF      Power to make orders

(1)      The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of: …

(b)      information that relates to a proceeding before the Court and is: …

(iv)     information lodged with or filed in the Court.

8    A suppression or non-publication order under s 37AF can only be made on the basis of one of the grounds in s 37AG. State Grid relies on s 37AG(1)(a). This requires that the “order is necessary to prevent prejudice to the proper administration of justice”.

9    Section 37AE of the Act requires the Court in deciding whether to make a suppression order or non-publication order to “take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”. Section 37AJ(2) requires the Court “to  ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made”.

10    In its submissions in support of an order under s 37AF, State Grid also referred to the Access to Documents and Transcripts Practice Note (GPN-ACCS) at [4.10] which sets out the matters which a Court will consider in relation to a request for documents by a person who is not a party to the proceeding:

(a)     whether the Access Applicant is a party or non-party;

(b)     whether the documents fall initially within a restricted or unrestricted category;

(c)     the context surrounding, and purpose underpinning, the Request;

(d)     the nature of the documents sought (eg. whether the documents have been admitted into evidence or read out in open court, whether the documents are confidential, restricted from publication, the subject of legal privilege, contain scandalous material etc);

(e)     the principles set out in Part 2 of this practice note, including whether the Request may result in an undue burden on the Court.

11    The Practice Note is relevant to decisions under rule 2.32 of the Rules whether to grant public access to evidence tendered in a proceeding. That is a different issue to whether a non-publication order should be made. The relevant question on this application is whether the Court is satisfied on the basis of one of the grounds in s 37AG that a suppression or non-publication order should be made under s 37AF.

consideration

12    For the reasons which follow, I am satisfied on the ground that it is necessary to prevent prejudice to the proper administration of justice to make limited non-publication orders.

13    State Grid observed that the Deputy Commissioner’s affidavit material included the TFN of State Grid. The Deputy Commissioner submitted that it should be inferred that Mr Chu did not intend for any TFN to be made publicly available, consistently with s 8WB of the Taxation Administration Act 1953 (Cth) I accept that submission. It is appropriate for the TFN to be suppressed.

14    State Grid also observed that the affidavit material contained a reference to the bank account details of AusNet. I am satisfied, having considered the principle of open justice, that it is appropriate to make a non-publication order in respect of this information to prevent prejudice to the proper administration of justice. The information is of no benefit to an understanding of what has occurred to date and why and, although perhaps unlikely, the information could be misused.

15    State Grid submitted:

(1)    The affidavits contained commercially sensitive information which included allegations made by the Deputy Commissioner relating to the making of false and misleading statements.

(2)    If it had been provided with more time before the commencement of the hearing, State Grid would have made objections to the admissibility and relevance of the affidavit material and much of the material may never have been admitted.

(3)    The affidavits contained confidential correspondence between the Deputy Commissioner and third parties who have not been given an opportunity to object to the public disclosure of documents concerning them.

(4)    The publication of the affidavit material is not necessary to “elucidate or contextualise” Justice Perry’s reasons for judgment and that suppression would not undermine the public interest in open justice.

16    As to the first submission, commercial sensitivity can provide a proper basis for the making of a suppression or non-publication order provided it is properly linked to a ground in s 37AG(1). Further, as Perram J explained in Motorola Solutions, Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 at [8]–[9], a carte blanche approach to applications for s 37AF on the basis of commercial confidentiality would jeopardise the interest of the public in being able to access court documents and engage meaningfully with reasons published by the Court.

17    As to the second submission, the difficulty is that the material was admitted into evidence. There has not been any argument about relevance or other bases which could have been relied upon for challenging admissibility. Nor has there been argument on the question of the extent to which the material which might have been objected to was relied upon at the hearing or by Perry J in making orders.

18    A primary objective of the administration of justice is to safeguard the public interest in open justice. I have considered the interests of the public in being able to access court documents and engage meaningfully with the Court’s published reasons. The orders which the Court will make are narrow in scope and do not unduly encroach upon those interests.

19    I accept that, in the circumstances, some of the details of the enquiries from the ATO to non-parties to the proceeding, where those enquiries are ongoing and not publicly known, should be the subject of a non-publication order. I also accept that the disclosure of sensitive commercial transaction information, being sale and acquisition prices of businesses and valuations made of those businesses, may have adverse commercial consequences. I accept that there should be limited non-publication orders in this respect. I am not satisfied that an order to suppress the entirety of the affidavits is necessary to prevent prejudice to the proper administration of justice.

Associate:

Dated:    21 June 2022