Federal Court of Australia
Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2)  FCA 719
AUSNET SERVICES LTD ACN 603 317 559
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The application made by the first respondent by email dated 23 May 2022 be dismissed.
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. 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  FCA 139.
2 A part of the context of the interlocutory application seeking non-publication orders was that a third party (Access Applicant) had sought access to material filed in the proceedings, including to the affidavits which had been read in Court on the application for freezing orders.
3 The Court made orders on 17 March 2022 for the filing of written submissions and determination of the interlocutory application on the papers. State Grid filed submissions signed by its solicitor, Mr De Zilva, on 30 March 2022 and the Deputy Commissioner filed submissions signed by its solicitor, Mr Metlej, on 7 April 2022.
4 Orders for various redactions were made on 18 May 2022 together with orders to the effect that the reasons for judgment and orders not be published in unredacted form until further order and that the parties provide a redacted form of the judgment and orders which the parties considered appropriate for publication – see Deputy Commissioner of Taxation v State Grid International Development Company Limited (Application for Non-Publication Orders No 1)  FCA 577.
5 By way of email dated 23 May 2022 from Mr De Zilva, State Grid then sought further redactions. According to Mr De Zilva’s email: “Counsel for [State Grid] did not identify these disclosures until after [State Grid] had filed its Interlocutory Application on 11 March 2022”. It is not clear when these disclosures were identified by “counsel”, but presumably it was after State Grid had filed its submissions and after the Court had made orders and delivered reasons on 18 May 2022 disposing of the interlocutory application. If it was not after this date, it is not clear why the issue was not raised earlier.
6 The further redactions sought related to what was described as “personal information” concerning the directors of State Grid which was disclosed in a “Company Particulars Search” (Company Extract) at pages 1-2 of Exhibit DC-1 of Mr Chu’s affidavit. State Grid sought a non-publication order over the names (in English and in Chinese) of the three directors, the Hong Kong Identification Number of one of those directors and the passport numbers of two of them disclosed on the Company Extract.
7 On 30 May 2022, my Associate wrote to Mr De Zilva and Mr Metlej (and others) stating amongst other things:
As things presently stand and recognising that no formal application has been made, the information that the respondent seeks to be restricted from publication appears to be publicly available or accessible information. There is no apparent reason why a confidentiality order should be made in respect of a company search.
Unless a proper basis for the order is advanced by the respondent by 5.00pm today his Honour proposes to finalise publication of the orders and judgment without making a confidentiality order in relation to the information at pages 1-2 of Exhibit DC-1 to Mr Chu’s affidavit.
8 Mr De Zilva responded later on 30 May 2022 stating, amongst other things, that the information was “not freely available or accessible information”. It was said that obtaining the information required “registration with a Hong Kong government authority” and that the information “will become publicly available only if an order restricting its publication is not granted”. It was also submitted that:
an order restricting the publication of the directors’ information (specifically the directors’ names, Hong Kong Identification Number and passport numbers) is necessary to prevent prejudice to the proper administration of justice under section 37AG(1)(a) of the Act;
the information is personal and confidential and relates to third parties who are not parties to the proceedings in their personal capacity, they being directors of the respondent, State Grid;
the substantive litigation between the Deputy Commissioner and State Grid remains on foot and, therefore, an order restricting the publication of the information is necessary to prevent prejudice to the proper administration of justice with respect to the ongoing substantive litigation;
the fact that State Grid “cannot declare with certainty how the Access Applicant might use the [i]nformation (including the extent to which the Access Applicant may publish the [i]nformation) does not in itself preclude a non-publication order from being necessary under s 37AG(1)(a) (BlueScope  FCA 1532 at )”; it is enough for the respondent to show that granting the Access Applicant access to the information may prejudice the administration of justice. The publication of the information may prejudice the administration of justice by making information which is otherwise not publicly available (addressed below) publicly available and by prejudicing the administration of justice with respect to the ongoing substantive litigation;
the Access Applicant will be handed the directors’ information that otherwise sits behind a monetary and administrative obstacle;
an order restricting the publication of the directors’ information would not undermine the Court’s objective in safeguarding the public interest in open justice. The information was personal and confidential, and had no bearing on Justice Perry’s reasons for judgment handed down on 22 February 2022 in respect of the 16 February 2022 freezing orders. Indeed, the company search was relied on by her Honour in Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited  FCA 139 only to the extent that it evidenced that the respondent was “a private company limited by shares incorporated in Hong Kong on 6 May 2013, with its registered office in Hong Kong”.
9 The Deputy Commissioner sought an opportunity to make submission against the further redactions sought. In the circumstances, the Court permitted the Deputy Commissioner to file written submissions in relation to the proposed further redactions by 3 June 2022 and for State Grid to file submissions in reply by 6 June 2022.
10 The Deputy Commissioner submitted that the information was publicly available. The Company Extract was one which Mr Chu had caused to be obtained on 15 February 2022. The Deputy Commissioner submitted (footnotes omitted):
3. State Grid is a private company limited by shares incorporated in the Hong Kong Special Administrative Region. It is subject to the Hong Kong Companies Ordinance (Ordinance), being the corporations law of the Hong Kong Special Administrative Region. The Ordinance provides for:
(a) the appointment of a Registrar who is conferred functions under the Ordinance (ss 21 and 22);
(b) the payment of fees to the Registrar for the provision of services connected with or incidental to the performance of the Registrar’s functions (s 26(1)); and
(c) the keeping of records in a “Companies Register” (ss 2 and 27).
4. Section 45 of the Ordinance provides as follows:
45 Registrar must make Companies Register available for public inspection
(1) The Registrar must make the Companies Register available for public inspection at all reasonable times so as to enable any member of the public—
(a) to ascertain whether the member of the public is dealing with—
(i) a company to which this subsection applies, or its directors or other officers, in matters of or connected with any act of the company;
(ii) a director or other officers of such a company in matters of or connected with the administration of the company, or of its property;
(iii) a person against whom a disqualification order has been made by a court;
(iv) a person who has entered into possession of the property of such a company as mortgagee;
(v) a person who is appointed as the provisional liquidator or liquidator in the winding up of such a company; or
(vi) a person who is appointed as the receiver or manager of the property of such a company; and
(b) to ascertain the particulars of the company, its directors or other officers, or its former directors (if any), or the particulars of any person mentioned in paragraph (a)(iv), (v) or (vi).
(3) For the purposes of subsection (1), the Registrar must, on receiving the fee payable under the regulations made under section 26, allow a person to inspect any information on the Companies Register in any form that the Registrar thinks fit.
(4) For the purposes of subsection (1), the Registrar may, on receiving the fee payable under the regulations made under section 26, produce to a person a copy or a certified true copy of any document or information on the Companies Register, in so far as the document or information may be made available for public inspection, in any form that the Registrar thinks fit. …
5. Pages 1-2 of Exhibit DC-1 is a “Company Particulars Search” extracted on 15 February 2022 from Integrated Companies Registry Information System (ICRIS) maintained by the Companies Registry of the Hong Kong Special Administration Region (Company Extract). It is information made publicly available by the Registrar pursuant to s 45 of the Ordinance. Upon the payment of a modest fee, the Company Extract can be obtained by any member of the public through an online search. It may be obtained by a registered or unregistered user.
11 Mr De Zilva filed written submissions in response. State Grid relied, first, on s 37AG(1)(a) of the Act. It was submitted that the names of the directors and the identification numbers were “personal and highly confidential”. It was submitted that there was a material risk that disclosing the information may prejudice the proper administration of justice with respect to any ongoing litigation between the parties and that the absence of a non-publication order would grant access to the information which the media might then “disseminate publicly”. As with the submissions made in the email of 30 May 2022, there was no identification of how there was a “material risk that disclosing the information may prejudice the proper administration of justice with respect to any ongoing litigation”.
12 Mr De Zilva submitted that the “non-publication orders sought would also help preserve the integrity of the litigious process, ensuring that commercial competitors do not abuse Court process to obtain commercially sensitive information”. Potential commercial competitors were not identified, the potential abuse of the Court process was not identified and it was not explained how the information contained in the Company Extract was “commercially sensitive” or could be used to obtain “commercially sensitive information”.
13 State Grid also relied on s 37AG(1)(c). Mr De Zilva submitted “that a non-publication order … is necessary to protect the [d]irectors’ safety in accordance with s 37AG(1)(c) of the Act”. It was submitted, by reference to Ferguson v Tasmanian Cricket Association (t/as Cricket Tasmania) (No 2)  FCA 125 at , that this Court has accepted that “the term ‘safety’ ought to be broadly construed” and that “an adverse effect on the mental health of a person may be so serious as to threaten the safety of that person”.
14 There was no express submission that there was a mental health issue which was relevant to the present case. There was no evidence to support the implicit submission, but unlikely proposition, that a director’s mental health might be adversely affected.
15 Mr De Zilva submitted that “the publication of the Hong Kong Identification Number and Passport Numbers (which the absence of a non-publication order may result in) could jeopardise the [d]irectors’ personal safety by making publicly available such highly confidential information”. It was said that “[s]hould these numbers be obtained by nefarious actors, there is no quantifying the harm that could be incurred by the [d]irectors”.
16 There was no material from which it could reasonably be inferred that the non-publication order was necessary to protect the safety of any of the directors, nor any submission advanced as to how the directors’ safety could possibly be compromised if a non-publication order were not made.
17 Mr De Zilva submitted that the information was “not freely available or accessible because it sits behind a pay-wall and requires submitting many items of personal information to the Hong Kong Companies Registry in order to be obtained”. He submitted that “[a]ny person attempting to access the [i]nformation is required to submit a raft of personal information, including their name, passport number, and payment card details” and that the “[i]nformation is therefore not ‘publicly available’”. He submitted: “Indeed, the [i]nformation will become publicly available only in the absence of the non-publication order sought”. He submitted that the third party seeking access “will be handed the [i]nformation that, but for the absence of an order restricting publication, sits behind a monetary and administrative obstacle”. As noted at  above, Mr De Zilva submitted that “registration” was required to obtain the Company Extract.
18 The evidence did not establish what the “raft of personal information” was that had to be provided in order to obtain the Company Extract. Whatever information was required, it was not so oppressive as to prevent the Deputy Commissioner obtaining the Company Extract. The evidence did not establish that the information could not be obtained by any member of the public accessing the Company Extract in the same way as the Deputy Commissioner had obtained that information or as contemplated by the Hong Kong Companies Ordinance. The evidence did not establish that a person had to be “registered” to conduct a company search.
19 I am satisfied that the information is publicly available. The fact that a member of the public wanting to access a public register must pay for access and submit certain information to obtain access does not mean that the information is not publicly available.
20 Contrary to the submissions advanced for State Grid, the names of directors of a company, available by public search, is not “personal and highly confidential” information. It is the ordinary information one would expect to be available on a company search.
21 The Court may have been inclined to order non-publication of the identification numbers, if a proper basis had been shown, and were it not for the fact that the information is publicly available and evidently considered by the relevant Hong Kong authorities as appropriate for publication to any member of the public in accordance with the Hong Kong Companies Ordinance. It was not made clear how this publicly available information might be misused. The submission that “[s]hould these numbers be obtained by nefarious actors, there is no quantifying the harm that could be incurred by the [d]irectors” was unaccompanied by any evidence or explanation as to why that was so or why such nefarious actors would not already have the information. Further, there was no basis in the evidence to conclude that an Access Applicant or any other person would “disseminate” the information.
22 The Company Extract was admitted into evidence on the Deputy Commissioner’s application for freezing orders without objection. State Grid’s connection to Australia and the identity and location of State Grid’s directors were relevant in that application.
23 The making of an application for a suppression or non-publication order can, and regularly does, impose a significant burden on parties to proceedings and on the Court system. Such applications are becoming increasingly common and increasingly informal. The making of such applications, especially in an incremental way, increases costs and delay. Parties should be conscious of the duties imposed on them by the Act. The parties to a proceeding must conduct proceedings in a way which is consistent with the “overarching purpose”: s 37N(1). That extends to all aspects of proceedings including applications of the present kind. A party’s lawyer must take account of the duty imposed by s 37N(1) and assist the party to comply with it: s 37N(2). The objectives of the overarching purpose include “the efficient use of all judicial and administrative resources” and the “efficient disposal of the Court’s overall caseload”: s 37M(2)(b) and (c).
24 If an application for a non-publication order is to be made, proper consideration should be given to whether there is a sound basis for the application and whether the application is supported by sufficient evidence.
25 If, for example, a party’s lawyer is instructed to bring an application for a non-publication order on the basis that the order is required for the safety of a person (or the mental health of a person), the application must have an evidentiary foundation unless that proposition is obvious, or one which can legitimately be inferred, from the nature of the information sought to be suppressed. There must be some material upon which the Court can reasonably reach the conclusion that it is “necessary” to make the proposed order – see: s 37AG(1) of the Act; Liverpool City Council v McGraw-Hill Financial, Inc  FCA 1289 at  (Lee J).
26 The Court is not satisfied that it is necessary to make the further redactions sought in Mr De Zilva’s email of 23 May 2022.