FEDERAL COURT OF AUSTRALIA

White v Commissioner of Taxation [2024] FCA 185

ORDERS

OTHER MATTERS

A.    As a result of the refusal of the Applicant’s application for leave to appeal dated 7 October 2023, the suppression and non-publication orders made in proceeding NSD1216/2023 on 15 December 2023 (as amended on 18 January 2024) have now expired.

B.    As a result of the refusal of the Applicant’s application for leave to appeal dated 7 October 2023, the suppression and non-publication orders made in proceeding NSD1216/2023 on 8 February 2024 have now expired.

THE COURT ORDERS THAT:

1.    The Applicant’s application for leave to appeal dated 7 October 2023 be dismissed.

2.    The Applicant’s interlocutory application dated 6 February 2024 be dismissed.

3.    The Applicant pay the First Respondent’s costs of the application for leave to appeal dated 7 October 2023.

4.    The Applicant pay the First Respondent’s costs of the interlocutory application dated 6 February 2024.

5.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the ground referred to in s 37AG(1)(a) of that Act, there be no disclosure, by publication or otherwise, of:

(a)    documents filed in proceeding NSD884/2023 (Underlying Proceeding), proceeding NSD1216/2023 (Leave to Appeal Proceeding), or a proceeding in which the Applicant seeks leave to appeal from the dismissal of paragraph 5 of the Applicant’s interlocutory application dated 6 February 2024 (Further Leave Application Proceeding), or information contained in those documents, including the fact that the documents have been filed, insofar as they refer to the name of the Applicant, witnesses and taxpayers;

(b)    that claims in the nature contended for in the Underlying Proceeding, Leave to Appeal Proceeding or a Further Leave Application Proceeding have been brought against the Applicant;

(c)    any medical conditions or medical treatment of the Applicant, insofar as referred to in material filed in the Underlying Proceeding, Leave to Appeal Proceeding or a Further Leave Application Proceeding;

(d)    the report of [redacted] attached to her affidavit as sworn on 8 February 2024 and any draft of that report;

(e)    any psychological conditions or treatment of the Applicant, insofar as referred to in material filed in the Underlying Proceeding, Leave to Appeal Proceeding or a Further Leave Application Proceeding; or

(f)    the name of any treating psychologist of the Applicant, insofar as referred to in material filed in the Underlying Proceeding, Leave to Appeal Proceeding or a Further Leave Application Proceeding,

except

(g)    to the legal advisers of Fairfax Media Publications Pty Ltd and the legal advisers of Ernst & Young, for purposes of enabling them to participate in the Leave to Appeal Proceeding or a Further Leave Application Proceeding;

(h)    by the Commissioner of Taxation for the purposes of compliance with any statutory obligations;

(i)    by the parties for the purposes of the conduct of the Underlying Proceeding, Leave to Appeal Proceeding or a Further Leave Application Proceeding, provided that the party notifies the person to whom disclosure is made of these orders (and any variation to these orders); or

(j)    by the parties to the Attorney-General of the Commonwealth of Australia or the Attorney-General’s Department, in connection with the Senate Finance and Public Administration References Committee and non-publication and suppression orders in the Underlying Proceeding, Leave to Appeal Proceeding or a Further Leave Application Proceeding, provided that the party notifies the person to whom disclosure is made of these orders (and any variation to these orders).

6.    Order 5 applies:

(a)    to all media including but not limited to print, radio, television, internet and social media;

(b)    to all persons, including any media organisation, present in the court whether in person or electronically;

(c)    to the Applicant and to the Respondents and any other persons who are notified of this order;

(d)    anywhere in the Commonwealth; and

(e)    until the later of:

(i)    4pm on 20 March 2024; or

(ii)    if the Applicant commences a Further Leave Application Proceeding before 4pm on 20 March 2024, until determination of that application (if leave to appeal is refused) or until final determination of the appeal (if leave to appeal is granted).

7.    Until the later of the times referred to in Order 6(e) above, no access is to be granted to any document filed in the Underlying Proceeding, Leave to Appeal Proceeding or a Further Leave Application Proceeding which includes the information referred to in Order 5(a)-(f) above to any person apart from:

(a)    the parties in the Underlying Proceeding, Leave to Appeal Proceeding or a Further Leave Application Proceeding and their respective legal advisers;

(b)    the legal advisers of Fairfax Media Publications Pty Ltd; or

(c)    the legal advisers of Ernst & Young.

8.    These orders and reasons for judgment be published only in redacted and pseudonymised form (so as to remove references identifying the name of the Applicant and medical condition of the Applicant) until the later of the times referred to in Order 6(e).

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

REASONS FOR JUDGMENT

ANDERSON J

INRODUCTION

1    In the underlying proceeding, the Commissioner of Taxation (Commissioner), has commenced proceedings against the applicant in this proceeding (Leave Applicant) seeking, amongst other things, declarations that the Leave Applicant contravened s 290-50(1) of Schedule 1 to the Taxation Administration Act 1953 (Cth) (TAA), by being the promoter of a tax exploitation scheme, and a pecuniary penalty.

2    Section 290-55(4) in Schedule 1 of the TAA provides that the Commissioner “must not make an application under section 290-50 in relation to an entity’s involvement in a *tax exploitation scheme more than 4 years after the entity last engaged in the conduct that resulted in the entity or another entity being a *promoter of the tax exploitation scheme”. By s 290-55(6), the limitation in sub-s (4) does not apply to a “*scheme involving tax evasion”.

3    The Commissioner’s primary case is that the Leave Applicant contravened s 290-50(1) by engaging in conduct that resulted in him being a promoter of a single tax exploitation scheme, which is described in the Originating Application as the “Tax Loss Access Scheme”. The Commissioner’s alternative case is that the Leave Applicant contravened s 290-50(1) by engaging in conduct that resulted in him being a promoter of three tax exploitation schemes, which are described in the Originating Application as the Bonar Street Scheme, the Kings Court Scheme and the Menangle Park Scheme. The Leave Applicant has filed a draft defence which generally puts the Commissioner to proof.

4    On 21 September 2023, the Leave Applicant filed a further amended interlocutory application seeking, amongst other things, suppression orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) (Act) on two grounds – first, that those orders were necessary to prevent prejudice to the proper administration of justice (Act, s 37AG(1)(a)); secondly, that the orders were necessary to protect the safety of any person (Act, s 37AG(1)(c)). On 3 October 2023, the primary judge dismissed that application: Commissioner of Taxation v White [2023] FCA 1176 (Judgment).

5    On 7 October 2023, the Leave Applicant filed an application for leave to appeal the primary judge’s decision (Leave to Appeal Application). The draft notice of appeal accompanying the Leave to Appeal Application only challenged the primary judge’s finding that suppression orders were not necessary to prevent prejudice to the proper administration of justice within the meaning of that expression in s 37AG(1)(a) of the Act.

6    Interim suppression orders are in place pending the determination of the Leave to Appeal Application.

7    The Leave to Appeal Application was listed for hearing on Thursday, 8 February 2024. On Tuesday, 6 February 2024, the Leave Applicant, by his solicitors, informed the Court that the Leave Applicant sought to file a further interlocutory application on the Leave to Appeal Application seeking various relief including:

(a)    leave to file a further interlocutory application before a single Judge in respect of s 37AG(1)(c) of the Act on the basis of fresh evidence; or

(b)    alternatively:

(i)    leave to amend the Leave to Appeal Application (Amendment Application) to include a further ground of appeal in the draft notice of appeal that, in the light of further evidence, suppression orders should be made on the ground in s 37AG(1)(c) of the Act that those orders are necessary to protect the safety of any person;

(ii)    leave to admit further evidence on the Amendment Application and the Leave to Appeal Application.

8    For convenience, the further interlocutory application will be referred to as the Further Evidence Application.

9    The “further” or “fresh” evidence central to the Further Evidence Application was as follows:

(a)    two affidavits of a clinical psychologist (Psychologist) which respectively annexed reports prepared by the Psychologist dated 31 January 2024 (First Psychologist Report) and 8 February 2024 (Second Psychologist Report) (together, Psychologist Reports). Those reports referred to the Leave Applicant’s [redacted] condition and the effect of lifting the interim suppression orders on that condition. It is not necessary to identify the Psychologist as her expertise is not in issue;

(b)    two solicitor’s affidavits dated 6 and 8 February 2024 which respectively provided a chronology of events leading to the Further Evidence Application. It is also not necessary to identify the deponents of these affidavits.

10    At the hearing of the Leave to Appeal Application, I refused the substantive relief sought in the Further Evidence Application. My reasons for doing so are set out in this judgment. I will also dismiss the Leave to Appeal Application for the reasons set out in this judgment.

BACKGROUND FACTS

11    The Commissioner served its Originating Application and Statement of Claim on the Leave Applicant on 29 August 2023.

12    Following a media request, a Client Services Officer at the Court emailed the parties on 4 September 2023, requesting that the Leave Applicant confirm whether the Leave Applicant intended to make an application for suppression orders in respect of information contained in the Statement of Claim and Originating Application. On 6 September 2023, the Leave Applicant confirmed an intention to make such an application.

13    On 13 September 2023, the Leave Applicant filed an interlocutory application seeking, amongst other things, interlocutory orders in the form of suppression orders under ss 37AF of the Act. The Leave Applicant filed an amended interlocutory application on 15 September 2023 and a further amended interlocutory application on 21 September 2023 which also sought interlocutory orders in the form of suppression orders under ss 37AF of the Act. The further amended interlocutory application made clear that interlocutory suppression orders were sought on the grounds referred to in s 37AG(1)(a) and/or (1)(c) of the Act.

14    On 17 September 2023, the Leave Applicant attended his first appointment with the Psychologist. The evidence as to what occurred at that appointment is not entirely consistent. A letter from the Psychologist dated 22 January 2024 stated that [redacted]. However, the Second Psychologist Report stated that, at the first appointment, the Psychologist [redacted]. The Psychologist further stated that [redacted]. Nonetheless, the Psychologist described the 17 September 2023 consultation as [redacted].

15    On 20 September 2023, the Leave Applicant filed written submissions in support of the further amended interlocutory application. Amongst other things, those submissions referred generally to the Leave Applicant having commenced seeing a psychologist following commencement of the proceedings, with a concern being [redacted]. That submission was not supported by evidence from the Psychologist as to the Leave Applicant’s mental state.

16    The Leave Applicant’s application for interlocutory suppression orders was heard on 29 September 2023. On 3 October 2023, the primary judge handed down the Judgment and made orders dismissing the application for interlocutory suppression orders. Notwithstanding this decision, the primary judge made interim suppression orders in place pending the determination of the Leave Applicant’s Application for Leave to Appeal.

17    On 7 October 2023, the Leave Applicant filed and served the Leave to Appeal Application. Following a case management hearing on 1 November 2023, the Leave to Appeal Application was listed for hearing on Thursday, 8 February 2024.

18    At 6.24pm on Tuesday, 6 February 2024, the Leave Applicant informed my chambers for the first time of the Leave Applicant’s intention to make the Further Evidence Application at the hearing of the Leave to Appeal Application. My chambers were then provided with the further evidence summarised at [9] above on a rolling basis. The most detailed of the affidavits relied on by the Leave Applicant on the Further Evidence Application – an affidavit of the Psychologist annexing the Second Psychologist Report – was emailed to my chambers at 8.24am on Thursday, 8 February 2024. The Leave to Appeal Application and Further Evidence Application were heard at 9.30am on the same day.

19    It appears from the evidence provided to my chambers that the context for the Further Evidence Application was a series of further consultations between the Leave Applicant and the Psychologist which occurred after the primary judgment handed down the Judgment on 3 October 2023. Those consultations occurred on 6 October 2023, 10 November 2023, 15 December 2023, 12 January 2024 and 19 January 2024. The consultations resulted in the Psychologist issuing to the Leave Applicant’s lawyers a letter dated 22 January 2024 and the Psychologist Reports. It is apparent from email correspondence between the Leave Applicant and the Psychologist on 28 December 2023, that the 22 January 2024 letter and the Psychologist Reports were, to some degree, prompted by communications between the Leave Applicant and the Leave Applicant’s lawyers. The content of those communications was not disclosed, however, following an email from the Leave Applicant’s solicitor to the Leave Applicant on 28 December 2023, the Leave Applicant emailed the Psychologist, [redacted]. The Psychologist responded, confirming that the Psychologist was able to provide the Leave Applicant with a [redacted].

20    The Second Psychologist Report provided a chronological overview of the various consultations attended by the Leave Applicant. It is not necessary to summarise each of those consultations. It is sufficient to note the following:

(a)    On 6 October 2023, the Psychologist [redacted].

(b)    During the consultation on 12 January 2024, the Psychologist identified a [redacted].

(c)    During the consultation on 19 January 2024, the Psychologist observed that [redacted].

(d)    In the First Psychologist Report, the Psychologist opined that [redacted].

(e)    In the Second Psychologist Report, the Psychologist ultimately [redacted]. The Psychologist stated that [redacted]. The Psychologist stated that [redacted]. The Psychologist also stated that lifting the non-publication and suppression orders would [redacted].

JUDGMENT

21    The primary judge held that the Leave Applicant had not made out the ground for suppression orders under s 37AG(1)(a) of the Act. In reaching this conclusion, the primary judge relevantly stated:

(a)    the prospect of reputational and commercial damage to the Leave Applicant by reason of the disclosure of the allegations against him was obvious (Judgment [10]);

(b)    adverse personal consequences to a litigant provide a basis for an order on the ground set out in s 37AG(1)(a) only if they are seen to lead to a potential adverse consequence to the administration of justice itself (Judgment [11]);

(c)    on the authorities, such a link may be found where the reputational and commercial damage is such that it would deter a litigant from bringing proceedings to vindicate their rights, but such reasoning would not apply to justify suppression orders in favour of a respondent to a proceeding (as the Leave Applicant was in the underlying proceeding) (Judgment [23]-[25]); and

(d)    the relevant authorities were difficult to reconcile with the proposition that s 37AG(1)(a) is satisfied where damaging allegations against the Leave Applicant may not be tested in a proceeding (Judgment [24]).

22    The Leave Applicant’s application for suppression orders before the primary judge rested on the characterisation of the underlying proceeding as “incompetent” as it had not been commenced within four years. The primary judge noted that, on the Leave Applicant’s submissions, if the proceeding was incompetent, the underlying proceeding would necessarily be dismissed without any finding on the substantive merits of what was alleged against the Leave Applicant, thus depriving the Leave Applicant of the opportunity to respond to the allegations in the proceeding: Judgment [15]. In response to this submission, the primary judge held that it was unrealistic to expect the Leave Applicant’s limitation defence to be heard and determined following a preliminary hearing: Judgment [19]. Even if this was possible, such a hearing would canvas whether the Leave Applicant’s conduct involved “evasion”, and the Leave Applicant would have an opportunity to answer the Commissioner’s evidence on this topic: Judgment [20]. In any case, the primary judge held that prejudice to the administration of justice was not established simply because the allegations against the Leave Applicant may not be tested and decided on their merits: Judgment [22].

23    The primary judge also rejected the Leave Applicant’s application for suppression orders under s 37AG(1)(c) of the Act. In reaching this conclusion, the primary judge stated that:

(a)    there was no evidence capable of being tested concerning the effect of the potential disclosures on the Leave Applicant’s mental health (Judgment [28]);

(b)    the evidence also did not account for the fact that proceedings were already on foot in the Supreme Court of New South Wales, in which the Leave Applicant was sued by some of the persons to whom he was alleged to have promoted the tax exploitation schemes. No suppression orders had been sought in the Supreme Court of New South Wales. The primary judge held that it was far from clear that suppression orders in the present case would play a significant part in protecting the Leave Applicant’s health: (Judgment [29]).

24    For the above reasons, the primary judge dismissed the further amended interlocutory application insofar as it sought interlocutory suppression orders.

PRINCIPLES

Leave to appeal

25    In exercising the power to grant leave to appeal, the Court must have regard to the requirement in s 37M(3) of the Act that the power to grant leave be exercised in the way that best promotes the overarching purpose in s 37M(1), being the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [2] (Lee J, Allsop CJ and Rares J agreeing).

26    The principles applicable on an application for leave to appeal from an interlocutory decision were recently set out in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96. In that case, Perram, Moshinsky and Hespe JJ (at [5]) relevantly stated (citations omitted):

In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong ... The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal “have general importance beyond the concerns of the parties”.

27    The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other. The two considerations identified in Miraki at [5] are cumulative such that leave ought not be granted unless each limb is made out: Nationwide News at [3].

28    It should be noted, however, that a decision under s 37AF of the Act is not relevantly “discretionary” and, consequently, the principles set out in House v The King (1936) 55 CLR 499 at 504-5 are not engaged in an application for leave to appeal from such a decision.

Further evidence

29    Section 27 of the Act provides as follows:

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a)     on affidavit; or

(b)     by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)     by oral examination before the Court or a Judge; or

(d)     otherwise in accordance with section 46.

30    The principles governing applications to adduce further evidence on appeal are well established. The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry: District Council of Streaky Bay v Wilson (2021) 287 FCR 538 at [149] (Mortimer, Perry and SC Derrington JJ), quoting the Full Court in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (Griffiths and White JJ). While the discretion conferred by s 27 of the Act is unfettered, two considerations are normally relevant to its exercise: Wilson at [149], quoting Quall (No 3) at [16]. The first may be framed at a high level as the extent to which the evidence has the ability to affect the result of the proceeding: Agency Group Australia Ltd v H.A.S. Real Estate Pty Ltd [2023] FCAFC 203 at [27] (Yates, Markovic and Kennett JJ). The second consideration is whether the party seeking to adduce the evidence was truly unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Wilson at [149], quoting Quall (No 3) at [16].

31    The authorities reveal that the Court ordinarily expects an applicant to meet a relatively high threshold in demonstrating that the further evidence may affect the result of the proceeding. So, in Quall (No 3) at [16], as quoted in Wilson at [149], Griffiths and White JJ stated that the Court will inquire as to whether the further evidence is such that had it been adduced at trial, the result would “very probably have been different”. An equivalent formulation was similarly adopted by Markovic, Thomas and Halley JJ in BVZ21 v Commonwealth of Australia [2022] FCAFC 122 at [12], in which their Honours stated that “the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different”. This formulation was quoted with approval in BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 184 at [27] (Yates, Raper and Jackman JJ).

Overarching principles concerning suppression orders

32    Section 17(1) of the Act provides that: “Except where, as authorized by this Act or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court”.

33    Sections 37AF and 37AG of the Act relevantly provide as follows:

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:

(a)     information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

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

(i)     information that comprises evidence or information about evidence; or

(ii)     information obtained by the process of discovery; or

(iii)     information produced under a subpoena; or

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

(2)     The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

37AG Grounds for making an order

(1)     The 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;

…

(c)     the order is necessary to protect the safety of any person;

…

34    Section 37AE of the Act provides:

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

35    Section 17(1) and 37AE of the Act reflect the fundamental rule of the common law that, with very limited exceptions, the administration of justice must occur in open court: Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) (2022) 294 FCR 221 at [23] (Rares, Perry and Hespe JJ). One reason for the common law principle, which is reflected in ss 17(1) and 37AE of the Act, is the importance of the common law right of any person to make fair and accurate reports of judicial proceedings: Ogawa at [26].

36    Pursuant to s 37AG(1) of the Act, suppression orders must be “necessary”. That is a strong word. It is insufficient that the making of the order is “convenient, reasonable or sensible”, or that it serves “some notion of the public interest”: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30], [31], [39] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). It follows that suppression orders should only be made in exceptional circumstances. The paramount consideration is the need to do justice. Publication can only be avoided where necessity compels departure from the open justice principle: Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377 at [8] (Allsop CJ, Wigney and Abraham JJ). If, however, the Court is satisfied that it is necessary to make suppression orders on the grounds identified in s 37AG, then the power to do so is enlivened, and there is no discretion to withhold making the order: Hogan at [32]-[33].

37    In Ogawa at [27] the Full Court observed:

“[c]onsiderations of embarrassment, convenience or personal sensitivity to the publication of personal and often very private circumstances given in evidence or revealed in the course of a proceeding in open court, of themselves, cannot justify or support the exercise of any … power of a court to suppress or prohibit the publication of those matters”.

38    Similarly, in Rinehart v Welker (2011) 93 NSWLR 311 at [32], Bathurst CJ and McColl JA relevantly stated:

… in general parties have to accept the embarrassment and damage to their reputation, and the possibility of consequential loss, which may be inherent in being involved in litigation. It is the price of open justice that allegations about parties are aired in open court. Those parties can make their response in the same forum and if the media publishes the allegations it would ordinarily be obliged to publish the response …

39    The Court’s power to make a pseudonym order in the proceeding is also based on considerations of the public interest in the administration of justice and is therefore exercisable only in limited circumstances. In making a pseudonym order, the Court must have regard to the requirements of ss 17(1) and 37AE, and the use of the word “necessary” in s 37AG(1). That is, the Court must determine that justice cannot be done without the use of a pseudonym or other derogation from open justice: Ogawa at [30].

Section 37AG(1)(c): Safety of persons

40    In AB (a pseudonym) v CD (a pseudonym) (2019) 364 ALR 202, Nettle J considered an application for a non-publication order under s 77RE of the Judiciary Act 1903 (Cth) on the ground that it was necessary to protect the safety of the applicant’s children. His Honour articulated the following relevant principles at [14]-[15]:

This application is made on the basis that the orders sought are necessary to protect the safety of HI and JK. As this Court has observed, “necessary” is a word which denotes more than what is merely convenient, reasonable or sensible. As a constituent of the collocation “necessary to protect the safety of any person”, “necessary” connotes that the Parliament is not concerned with trivialities. It has been suggested that “necessary” in this context permits of two possible constructions: either that it must be established on the balance of probabilities that, absent the order sought, the person would suffer harm; or alternatively, satisfaction on the balance of probabilities that the order is necessary to protect the person’s safety, the latter being a conclusion informed by the nature, imminence and degree of likelihood of apprehended harm. As it appears to me, the latter construction is to be preferred.

The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of “necessary to protect the safety of any person” that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.

41    The above principles have been cited with approval by this Court in considering the application of s 37AG(1)(c): De Pyle v Commonwealth of Australia [2023] FCA 597 at [17] (SC Derrington J); DSLB v Comcare [2023] FCA 1222 at [111]-[115] (Katzmann J).

42    Thus, the Court favours a “calculus of risk” approach to a “probable harm” approach. On the favoured approach, the Court does not require proof on the balance of probabilities of harm in the absence of an order, and instead may take into account the nature, imminence and degree of likelihood of harm to occur to the relevant person: Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383 at [229] (Bathurst CJ, Leeming JA and Simpson AJA); Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 at [16]-[17] (Besanko J).

43    During the hearing of the Further Evidence Application, I was taken to two cases relevant to the application of s 37AG(1)(c), in which applicants had sought suppression orders on the basis that the disclosure of information in the case may cause them psychological harm: EFA and Director of Public Prosecutions v EN [2023] VSC 724.

44    EFA concerned an appeal from orders of the New South Wales Civil and Administrative Tribunal made in a disciplinary proceeding against a barrister. The barrister sought non-publication orders under an equivalent provision to s 37AG(1)(c) in the Court Suppression and Non-Publication Orders Act 2010 (NSW). In that case, the New South Wales Court of Appeal made a limited order restricting publication of identifying information relating to the barrister. In reaching this conclusion, the Court took into account psychiatric and psychological evidence that further reporting, and identification of the barrister, would cause further damage to the barrister’s “already fragile mental health”, and exacerbate the barrister’s currently diagnosed conditions: EFA at [230].

45    I note that an important consideration in EFA, which was not applicable to the Leave Applicant, was that previous media reporting about the barrister’s case had been inaccurate. In AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at [103], the Court found that the only effect of a non-publication order would be to “prevent the further identification of the applicant and his family in connection with these proceedings with the aim of eliminating or minimising vigilante conduct engendered by the misreporting of the proceedings”. The Court in EFA at [232] referred to this finding and described it as “apposite in the present case”.

46    In EN, Elliot J in the Supreme Court of Victoria refused an application for suppression orders under an equivalent provision to s 37AG(1)(c) in the Open Courts Act 2013 (Vic). The applicant had been charged with the murder of her 3-year-old son. The applicant suffered from serious mental health issues and had engaged in self-harming acts. In refusing the application for suppression orders, Elliot J relevantly made the following findings:

(a)    Elliot J considered that there was insufficient evidence to support a conclusion that publication of details of the alleged offending would cause the applicant additional psychological or physical harm. Elliot J noted in this regard that the applicant’s feelings, which his Honour accepted were having a significant impact on the applicant’s psychological wellbeing, were “an almost unavoidable and completely expected consequence of facing the charges relating to the alleged offending”: at [45].

(b)    Elliot J also did not consider that a sufficient causal link had been established between the absence of suppression orders and a materially increased risk to the applicant’s safety: at [46].

(c)    Elliot J also noted that the applicant was receiving professional care and mental health treatment in custody and that various protective measures had been put in place to reduce the degree and potential consequences of any risk of exacerbation of the applicant’s mental health issues: at [47].

47    The above cases illustrate that an application for suppression orders on the ground that the orders are necessary to protect the safety of any person will ultimately depend on all of the facts, including the cogency of any expert evidence adduced in support of the application.

Section 37AG(1)(a): Prejudice to the proper administration of justice

48    To establish that an order under s 37AF is “necessary to prevent prejudice to the proper administration of justice” within the meaning of s 37AG(1)(a), the party seeking that order must “identify the contended prejudice to the proper administration of justice that would result if the order is not made”, and identify the link “between the contended harm and s 37AG(1)(a)”: Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272 at [90], [93], [95] (Thawley, Stewart and Abraham JJ) (Lee FC) and Deputy Commissioner of Taxation v Lee [2022] FCA 1307 at [40] (Bromwich J) (Lee PJ).

49    It is not sufficient merely to point to the possibility of reputational damage or commercial harm. That a person will suffer such damage or harm by reason of publication of evidence relied upon in open court “does not have the necessary consequence that the proper administration of justice is or will be prejudiced”: Lee FC at [90].

50    The necessary link between the contended harm to the administration of justice and s 37AG(1)(a) may be established by evidence or made through argument. There are “categories” of situations which arise more regularly than others – eg, the publication of bank account numbers which might be misused if published and which are wholly irrelevant to the Court’s reasons – but there is no set of closed “categories”: Lee FC at [95].

FURTHER EVIDENCE APPLICATION

Leave Applicant’s submissions

51    By the time of the hearing of the Further Evidence Application, three issues had crystallised as potential grounds for refusing that application: first, whether any further interlocutory application before a single Judge in respect of s 37AG(1)(c) of the Act would constitute an abuse of process; secondly, whether the Leave Applicant could have obtained a detailed psychologist’s report and relied on it at the hearing before the primary judge; and thirdly, if the evidence was sought to be relied on in the Leave to Appeal Application, whether the Psychologist Reports were of sufficient weight to warrant their admission into evidence.

52    As to the first issue, as explained in the Leave Applicant’s written submissions dated 6 February 2024 at [2] and [6]-[7], the Leave Applicant sought leave to amend the Leave to Appeal Application to add a further ground in the notice of appeal that suppression orders should be made on the ground that such orders were necessary to protect the safety of any person. The Leave Applicant explained that an alternative, albeit perhaps preferable, course was for the Court to adjourn the Application for Leave to Appeal and make directions for the filing of an application for suppression orders before a single Judge, and lead fresh evidence on that application. The Leave Applicant’s written submissions at [7] candidly recognised the prospect of abuse of process arising from the alternative course.

53    As to the second issue, at the hearing of the Further Evidence Application, counsel for the Leave Applicant submitted that the evidence demonstrated that there were four “stages” in which the Leave Applicant’s lawyers came to be aware of the evidentiary basis for an application for suppression orders under s 37AG(1)(c). The first stage was what occurred before the decision of the primary judge. Counsel for the Leave Applicant submitted that, at this stage, the Leave Applicant had only had one appointment with the Psychologist (being the appointment on 17 September 2023 referred to at [14] above), which only permitted a “light touch” submission to the primary judge as to the basis for suppression orders under s 37AG(1)(c). The second stage was described by counsel as involving “exploration” of the prospect of the Leave Applicant’s condition having changed. The third stage was described as the identification of the Leave Applicant’s condition having changed. The relevant changes were said to be, in overview: [redacted]. The fourth stage was described as the Leave Applicant’s lawyers being informed of the Leave Applicant’s change in condition and acting promptly to obtain a more detailed report from the Psychologist.

54    As to the third issue, the Leave Applicant placed reliance on the New South Wales Court of Appeal’s reasons in EFA and submitted that, adopting the “calculus of risk” approach endorsed in that case, the further evidence set out at [8] above would very probably affect whether the Full Court would make a different order to the order made by the primary judge.

Consideration

55    As previously noted, at the hearing on 8 February 2024, I refused the substantive relief sought in the Further Evidence Application. My reasons follow.

56    I first considered the Leave Applicant’s Amendment Application and the application to admit further evidence on the Leave to Appeal Application. There were two interrelated difficulties with these applications. Taken together, those difficulties rendered untenable those applications.

57    First, it was clear on the authorities that, if evidence was to be adduced on an appeal, the Court would normally need to be satisfied that the further evidence, had it been adduced before the primary judge, would very probably have meant that the result would have been different. I considered this was a relatively demanding standard. The further evidence – most critically, the Psychologist Reports – did not meet this standard.

58    I accepted that the Psychologist Reports referred to [redacted]. Most notably, the Second Psychologist Report referred to [redacted].

59    Notwithstanding this, I considered that the weight to be given to the Psychologist Reports was affected by the following considerations:

(a)    As a preliminary matter, I considered that only the Second Psychologist Report was framed with anything like the precision required to support an application for suppression orders pursuant to s 37AG(1)(c). The letter dated 22 January 2024 and the First Psychologist Report were brief and framed at a very high level. They merely recorded the Psychologists’ vaguely expressed conclusions [redacted]. The letter and First Psychologist Report could not, therefore, be relied on to support the Leave Applicant’s application for suppression orders under s 37AG(1)(c).

(b)    The Second Psychologist Report was more detailed. Nonetheless, the key risk identified – [redacted] – was not quantified in the report. Instead, the Psychologist [redacted], and went on to state that [redacted]. The Psychologist further stated that [redacted]. This statement also did not identify the level of risk that [redacted].

(c)    Critically, the Second Psychologist Report, when read in the context of the letter dated 22 January 2024 and the First Psychologist Report, identified a range of stressors in addition to the risk of lifting the interim suppression orders that had contributed to the Leave Applicant’s current mental state. The letter of 22 January 2024 referred to a [redacted] event related to the Australian Taxation Office’s conduct when investigating the Leave Applicant. The First Psychologist Report stated [redacted]. It went on to state that the [redacted]. The Second Psychologist Report did, at various points, state that [redacted]. However, even in this report, the Psychologist identified [redacted]. In circumstances where the Psychologist recognised multiple stressors contributing to the Leave Applicant’s [redacted] issues, the necessity for the suppression orders sought was contestable.

(d)    As noted at Judgment [29], a difficulty with the Leave Applicant’s application for suppression orders on the ground of s 37AG(1)(c) before the primary judge was that the Leave Applicant’s evidence did not account for the fact that proceedings had already been commenced in the Supreme Court of New South Wales against the Leave Applicant by persons to whom he allegedly promoted the tax exploitation schemes. At Judgment [29], the primary judge stated that there was “a significant factual overlap” between the New South Wales proceedings and the present case. I agreed with that characterisation. Although the pleadings filed in the New South Wales proceedings did not contain an allegation that the Leave Applicant contravened s 290-50(1) of Schedule 1 to the TAA as a promoter of a tax exploitation scheme, the pleadings did plead conduct by the Lead Applicant of a similar nature to that pleaded in the Statement of Claim filed in the underlying proceeding. No suppression orders have been sought in the Supreme Court. I considered this created a significant difficulty for the Court in accepting that it was the disclosure of the specific allegations in this proceeding that would cause harm to the Leave Applicant’s mental health. That difficulty was not remedied by the filing of the Psychologist Reports.

60    In the light of each of these matters, I was not satisfied that, if the further evidence had been adduced before the primary judge, it would “very probably” have meant that the result would have been different.

61    Secondly, I was not satisfied that evidence of a similar nature to the further evidence sought to be relied on by the Leave Applicant could not have been, with reasonable diligence, adduced before the primary judge. The primary judge heard the Leave Applicant’s application for interlocutory suppression orders on 29 September 2023, with that application being dismissed on 3 October 2023. By the time of the hearing before the primary judge, the Leave Applicant had attended a consultation with the Psychologist on 17 September 2023. At that consultation, the Psychologist had identified [redacted], notwithstanding that the first consultation was [redacted]. By the time of the second consultation on 6 October 2023, some three days after the primary judge handed down the Judgment, the Leave Applicant was [redacted].

62    In circumstances where the first consultation with the Psychologist was necessarily [redacted], and had identified [redacted], it was not apparent to me why the Leave Applicant did not arrange a further urgent consultation to obtain a report from the Psychologist to establish any link between the Leave Applicant’s condition and the threat of the lifting of the interim suppression orders ([redacted]).

63    Further, no satisfactory explanation was provided as to why, if more time was required to obtain such a report, the Leave Applicant did not seek an adjournment of the hearing before the primary judge to obtain that report. The evidence of the Leave Applicant’s solicitor was that he did not know of [redacted] at the time that submissions were made to the primary judge, or when the matter was heard by the primary judge. The Leave Applicant’s solicitor stated that he did not have a reason to seek an adjournment. The Leave Applicant’s solicitor also noted the requirement that an application for suppression orders be determined as a matter of urgency under s 37AI(2) of the Act. Whatever is meant by the solicitor’s statement [redacted], it is clear that the Leave Applicant’s lawyers were aware of [redacted], as this matter was expressly identified in their submissions before the primary judge. It is difficult to accept the proposition that the primary judge would have been unwilling to countenance a short adjournment to allow the Leave Applicant to obtain a report from the Psychologist in support of the application for suppression orders if such an adjournment was required.

64    I accepted that [redacted]. Nonetheless, by the time of the first consultation, the Psychologist had formed the view that the [redacted]. It was open to the Leave Applicant’s solicitors, acting with reasonable diligence, to seek a detailed report at that time which addressed the link, if any, between the risk of public disclosure of those proceedings and the Leave Applicant’s condition. Such a submission would not have been frivolous. As noted in the Leave Applicant’s submission, the likelihood of harm to mental health, falling short of the risk of suicide, may in an appropriate case be sufficient to justify a suppression order: quoting EFA at [226]. Ultimately, the Leave Applicant did not adduce any probative evidence at the hearing of the Leave Applicant’s further amended interlocutory application. The consequence of this was that the primary judge rejected the Leave Applicant’s application for suppression orders. I was concerned that, in granting leave for the Leave Applicant to rely on the further evidence on the Leave to Appeal Application, I would be extending an opportunity to the Leave Applicant to, in substance, “tidy up” deficiencies in the evidence before the primary judge.

65    For these reasons, taken together, I refused the Leave Applicant’s Amendment Application and the application to admit the further evidence on the Leave to Appeal Application.

66    Having reached the above conclusion, I also formed the view that it was inappropriate for this Court to adjourn the Leave to Appeal Application to permit the Leave Applicant to file a further interlocutory application before a single Judge in respect of s 37AG(1)(c) of the Act on the basis of fresh evidence.

67    The primary judge’s dismissal of the Leave Applicant’s further amended interlocutory application did not give rise to a res judicata or estoppel: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 (McLelland J). Nonetheless, the making of a claim which was made in an earlier proceeding may constitute an abuse of process, even when the earlier proceeding does not give rise to an estoppel: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [26] (French CJ, Bell, Gageler and Keane JJ). The principles concerning abuse of process circumscribe the ability of a party to re-litigate interlocutory matters after they have been thoroughly determined: Dallas Buyers Club LLC v iiNet Ltd (No 5) (2015) 115 IPR 544 at [14] (Perram J).

68    In P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466, Goldberg J considered the authorities in relation to attempts to obtain interlocutory orders that had been the subject of a previous application. His Honour stated (at [49]) that, to have an interlocutory application effectively reheard, the applicant must satisfy one or more of the following factors:

(a)    there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made on 2 November 2007 and 4 July 2008;

(b)     there has been a material change in the circumstances since those orders were made;

(c)    there are exceptional circumstances which warrant re-consideration of the matter, the subject of their notice of motion; and

(d)    as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter, the subject of their notice of motion.

69    The above approach has been followed by this Court in cases such as Food Channel Network Pty Ltd v Television Food Network, GP [2010] FCA 372 at [16] (Jagot J); Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2) [2015] FCA 272 at [44] (Reeves J) and Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109 at [6] (Jackson J).

70    The Leave Applicant sought, by the further amended interlocutory application dated 21 September 2023, interlocutory suppression orders on the ground that those orders were “necessary to protect the safety of any person” within the meaning of s 37AG(1)(c) of the Act. That application was refused by the primary judge on the basis of deficiencies in the Leave Applicant’s evidence. To the extent that the Leave Applicant sought to cure those deficiencies by relying on further evidence on the Leave to Appeal Application, I considered that such leave ought not be granted. This was because, amongst other things, I was not satisfied that evidence of a similar nature to the further evidence could not have been, with reasonable diligence, adduced before the primary judge. Having reached this conclusion, I also concluded that the further evidence sought to be relied on in a further interlocutory application before a single judge would not constitute new evidence which was not available or reasonably available, at the time of the hearing of the further amended interlocutory application before the primary judge. This conclusion also disposed of the question whether there had been a material change in circumstances since the primary judge made orders dismissing the interlocutory orders sought in the further amended interlocutory application.

71    While I accepted the evidence of the Psychologist raised issues relating to the Leave Applicant’s health that were serious in nature, I was not satisfied that this was an exceptional case or that, as a matter of discretion, the justice of the matter required that the Leave Applicant be allowed to revisit the question of whether suppression orders ought to be made on the ground that those orders were “necessary to protect the safety of any person” within the meaning of s 37AG(1)(c) of the Act.

72    Ultimately, I considered that the concerns that inform the principles of estoppel had to be brought to bear by a Court in considering whether to permit a second interlocutory application as to the same subject matter, and the principles concerning abuse or process continued to apply: Kayler-Thomson v Colonial First State Investments Limited (No 3) [2023] FCA 606 at [49] (Colvin J). I considered that, consistently with the reasons of Hayne JA in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 602, unless limits are placed on applications to reopen issues which have already been decided, the Court creates the risk of conflicting decisions, the possibility of a party being vexed by successive applications and the risk that an application may be “hawked” from judge to judge until a judge is found who is willing to accede to an applicant’s argument: see also Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Ltd (No 2) [2010] FCA 1093 at [12] (Finkelstein J).

73    I therefore considered that it would be an abuse of process for the Leave Applicant to file a further application for suppression orders before a single Judge.

LEAVE TO APPEAL APPLICATION

Leave Applicant’s submissions

74    As I understand the Leave Applicant’s submissions, the form of suppression order sought by the Leave Applicant is a pseudonym order. The Leave Applicant contends that it has been recognised that, when a pseudonym order is made, the “derogation from the principle of open justice would not be great”: Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222 (Emmett, Allsop and Edmonds JJ).

75    The Leave Applicant accepts that embarrassment and damage to his reputation by itself is not enough to justify suppression orders. The Leave Applicant also appears to accept that apprehended reputational damage is by itself not enough to warrant suppression orders. In the present case, the Leave Applicant points to two contextual factual matters that place the Leave Applicant’s application for suppression orders on a different footing. First, it is said that the Commissioner has raised the issue of whether the underlying proceeding is incompetent. Secondly, the Leave Applicant points to the unchallenged finding of the primary judge that the prospect of reputational and commercial damage to the Leave Applicant by reason of the disclosure of the allegations against him is obvious (Judgment [10]).

76    The Leave Applicant’s written submissions, as elaborated in oral submissions, make a series of overlapping points, that can generally be grouped into the following topics:

(a)    First, contrary to the decision of the primary judge, the Leave Applicant submits that the authorities do not foreclose the possibility that prejudice to the proper administration of justice may arise where damaging allegations against a respondent are unable to be tested in a proceeding. The Leave Applicant, citing Lee FC at [91], submits that the categories of situations where the Court may make suppression orders are not closed. The Leave Applicant emphasises three cases: A v Federal Commissioner of Taxation [2016] FCA 1307, Applicant X v Australian Prudential Regulation Authority [2005] FCA 1288, and Applicant Y. In A v FCT, Perram J made suppression orders in favour of an applicant who had commenced proceedings seeking to set aside notices issued by the Commissioner. In making the suppression orders, Perram J observed at [13]-[14] that, in the absence of the orders, there was a risk that the Commissioner’s allegations of misconduct against the applicant would enter the public domain, but the proceeding would not provide any occasion to answer those allegations. In Applicant X, Lindgren J made orders suppressing the identities of applicants who sought orders to the effect that the respondent, the Australian Prudential Regulation Authority (APRA), had no power to make orders disqualifying them. In Applicant Y, the Full Court took the same approach in relation to the appeal from Lindgren J’s judgment on the substantive issues in the case, and made suppression orders on the appeal. The primary judge distinguished these decisions. His Honour did so principally on the basis that, in these cases, the applicant for suppression orders was also the moving party in the proceeding and would have been dissuaded from commencing the proceeding in the absence of suppression orders. The Leave Applicant submits that s 37AG(1)(a) is engaged, and prejudice to the proper administration of justice arises, not just where an applicant would be deterred from commencing proceedings or responding to proceedings, but in a broader range of circumstances.

(b)    Secondly, and relatedly, the Leave Applicant contends that relevant prejudice to the proper administration of justice is established, where the following “prospects” arise in an incompetent proceeding in which serious allegations are made:

(i)    prejudice arising from allegations in incompetent proceedings being publicly made by a regulator.

(ii)    prejudice arising from allegations in incompetent proceedings being publicly admitted (if admitted).

(iii)    prejudice arising from allegations in incompetent proceedings being upheld in part (if they are upheld), when determining the competence question.

(iv)    prejudice arising where the competence question involves only part of the allegations in the incompetent proceedings, in which case the allegations which did not need to be determined may be determined or, alternatively, the allegations which did not need to be determined are not determined.

The Leave Applicant submits that if suppression orders are not made, then if he is correct in arguing that the proceeding is incompetent, each of the above examples are potential prejudices that will have arisen, with the effect that he will be denied the “fruits of victory”: relying on Applicant Y at [16].

(c)    Thirdly, the Leave Applicant notes that, before the primary judge, the Commissioner relied on paragraphs from a solicitor’s affidavit to highlight the risk posed by the Leave Applicant to the community as a reason why the application for suppression orders should be refused. The Leave Applicant contends that the Commissioner should not achieve a regulatory objective (that is, protection of the community by disclosure of the allegations against the Leave Applicant) by proceedings where the question whether the proceedings are competent is yet to be decided.

77    The Leave Applicant submits that the questions raised on the Leave to Appeal Application are “not free from difficulty” (an expression adopted by the Full Courtin Applicant Y at [13]) and that as a consequence, the Judgment is attended by sufficient doubt to warrant the grant of leave to appeal: at [13]. The Leave Applicant submits that substantial injustice would result if leave to appeal were refused, supposing the decision of the primary judge to be wrong. This is because damage to the Leave Applicant’s reputation among clients and prospective clients (and consequential commercial damage) which may arise from the disclosure of the nature of the allegations against him is obvious (Judgment [10]).

Consideration

78    The principles relevant to the determination of the Leave to Appeal Application are set out at [25]-[28] (concerning the test for leave to appeal), [32]-[39] (concerning the overarching principles relating to the making of suppression orders, including pseudonym orders) and [48]-[50] (concerning the making of suppression orders under s 37AG(1)(a)). Having regard to those principles, for the reasons that follow, the primary judge’s decision is not attended by sufficient doubt to warrant a grant of leave to appeal.

79    What emerges from the Leave Applicant’s submissions, which are summarised at [76] above, is that central to the Application for Leave is the Leave Applicant’s assertion that the underlying proceeding is incompetent. The Leave Applicant contends that the primary judge should have found that the orders sought under s 37AF were “necessary to prevent prejudice to the proper administration of justice” within the meaning of s 37AG(1)(a) of that Act because this case involves “something more” than reputational damage or commercial harm. The “something more” to which the Leave Applicant points is that “the moving party has raised the issue of whether the proceedings are incompetent”. The substance of the Leave Applicant’s position is that the Leave Applicant should have the benefit of having his name and the nature of the claims made against him suppressed until the issue of competency of the underlying proceeding has been determined by the Court. The Leave Applicant submits that it is oppressive and prejudicial to the proper administration of justice for the Leave Applicant’s name and the nature of the Commissioner’s claims to be made public when the question of the competency of the proceeding is yet to be determined by the Court.

80    There are three difficulties with the Leave Applicant’s reliance on the alleged incompetence of the underlying proceeding as a basis for the suppression orders sought.

81    First, before the primary judge, the Leave Applicant did not make substantive submissions to demonstrate that the proceeding was in fact incompetent or at risk of being found to be so. The Leave Applicant merely foreshadowed to the primary judge making an argument that any conduct engaged in after 18 August 2019 was not conduct that resulted in him being a promoter of a tax exploitation scheme within the meaning of s 290-55 (4) of Schedule 1 to the TAA. By the time of the hearing before the primary judge, the Leave Applicant had filed a draft defence dated 26 September 2023. It is not necessary to describe the contents of the draft defence save to say that it does not in any meaningful way plead that the proceeding is in fact incompetent. Nor has any application been filed by the Leave Applicant to have the proceeding dismissed, or pleadings struck out, on the basis that the proceeding or part of the proceeding is incompetent. It follows that the “something more” upon which the Leave Applicant relies is merely the fact that he may wish to challenge the competence of some or all of the underlying proceeding on a basis that he has not yet fully identified in his defence or any other Court document.

82    Secondly, a review of the Commissioner’s Statement of Claim filed in the underlying proceeding reveals that the Commissioner pleads four different contraventions of s 290-50(1) of Schedule 1 of the TAA relating to the Tax Loss Access Scheme, the Bonar Street Scheme, the Kings Court Scheme and the Menangle Park Scheme. The Commissioner’s case is that the Leave Applicant engaged in conduct as a promoter of the Tax Loss Access Scheme until 13 April 2021, the Bonar Street Scheme up to (at least) 19 September 2019, the Kings Court Scheme up to 22 August 2019 and the Menangle Park Scheme up to at least 26 September 2019. On that case, only the contravention relating to the Kings Court Scheme is capable of being determined to be incompetent. The Leave Applicant put to the primary judge, and the primary judge accepted at Judgment [16], that the dates pleaded by the Commissioner were not admitted, so that it could not be assumed that any part of the relevant conduct would be found to have occurred after the relevant time for the purposes of s 290-55(4) or (5) of Schedule 1 of the TAA. However, the basis for any claim that the entire proceeding is incompetent is not revealed in any Court document filed by the Leave Applicant, nor was it explained at the hearing of the Application for Leave to Appeal. This is a significant difficulty for the Leave Applicant in seeking to establish that the suppression orders sought are “necessary” to prevent prejudice to the proper administration of justice within the meaning of s 37AG(1)(a), as the Leave Applicant is required to do.

83    Thirdly, as correctly observed by the primary judge, it is unrealistic to expect that the issue of the competence of the proceeding will be determined as a preliminary issue. Rather, as his Honour observed, that issue would have to be heard and determined with all the other issues in the proceeding as part of the final judgment (Judgment [19]); or at least in a manner which canvassed the substantive allegations against the appellant (Judgment [20]). In these circumstances, there can be little doubt that the Leave Applicant will have the opportunity to respond to the allegations made against him. It is apparent from the reasons of Perram J in A v FCT at [12], that one of the reasons for the Court’s ordinary position that the parties must accept the reputational damage associated with litigation is that such damage happens in an arena where the parties are heard and in which each may make a response to the other: see also Rinehart at [32]. That rationale is applicable in the Leave Applicant’s case.

84    The Leave Applicant contends that, even if he has the opportunity to ultimately respond to the Commissioner’s allegations at a final hearing, the Leave Applicant will still suffer prejudice such as the prejudice of allegations having been publicly made by the regulator, and the prejudice arising from allegations in incompetent proceedings being publicly admitted. However, those examples merely demonstrate that, like any other respondent in a proceeding, the Leave Applicant will sustain reputational damage and the possibility of consequential loss inherent in being involved in litigation: see Rinehart at [28]. The authorities make clear that this is an insufficient basis for a suppression order: Lee FC at [90].

85    The same difficulty applies to the Leave Applicant’s contention that prejudice arises by the Leave Applicant having to decide whether and how to respond to the allegations made in the underlying proceeding. Again, far from demonstrating any prejudice to the administration of justice, that contention only demonstrates that, like any other respondent to a proceeding, the Leave Applicant will need to make decisions about how to respond to allegations made in the proceeding.

86    During the hearing, I put to counsel for the Leave Applicant that the prejudice identified in the Leave Applicant’s submissions was no different to that experienced by any litigant in contested proceedings. The distinction identified by counsel in response was the legislative mandate in s 290-55(4) of the TAA, which provides that the Commissioner “must not” commence a proceeding more than four years after the entity last engaged in the relevant conduct. I have not been taken to any authority which establishes the proposition that the fact of such a mandate supplies the necessary link between the contended harm to the administration of justice and s 37AG(1)(a). Nor am I satisfied that any of the authorities to which I was taken by the Leave Applicant are capable of supporting such a proposition.

87    As noted above, the cases primarily relied on by the Leave Applicant on the Application for Leave to Appeal are A v FCT, Applicant X and the Full Court’s related decision on the appeal in Applicant Y. The primary judge distinguished those decisions on the basis that, in those cases, the applicant for suppression orders was also the moving party in the proceeding, and would have been dissuaded from commencing the proceeding without a suppression order: Judgment [23]-[24].

88    In Applicant Y at [16], the Full Court expressly noted that the applicants would not have commenced the proceedings or continued it without suppression orders. I accept that this was not the sole reason for the Full Court making suppression orders in that case. However, it was an important consideration that makes Applicant Y (and Lindgren J’s judgment below, Applicant X) distinguishable from the present case. The primary judge was correct to distinguish Applicant Y and Applicant X from the Leave Applicant’s case on this basis.

89    In the case of A v FCT, it is apparent from Perram J’s reasons that his Honour’s concern was the inability of the applicant to respond to allegations made by the Commissioner in the proceeding. At [12], his Honour referred to the observation in Rinehart at [32] that, in litigation, parties have the opportunity to respond to allegations in the same forum in which they are made. At [13], his Honour stated that, in the absence of suppression orders, “allegations against the applicant will be placed in the public domain … in circumstances where the applicant will have had no opportunity to respond” because the correctness of the Commissioner’s views will not be called to be resolved in the proceeding. At [14], his Honour described the “key aspects” as “the commercial damage” which would accrue to the applicant’s group of companies if suppression orders were not made and “the inability of the applicant usefully to respond to the Commissioner’s fraud and evasion opinions in the present proceeding”. As previously noted, unlike the applicant in A v FCT, the Leave Applicant will have the opportunity to respond to the allegations put by the Commissioner. The primary judge, at Judgment [21], correctly observed that this made the Leave Applicant’s case “quite different” from that in A v FCT.

90    It is ultimately unnecessary for me to consider the correctness of the primary judge’s further conclusion, at Judgment [24], that the outcome in A v FCT was underpinned by the fact that the applicant in that proceeding was also the moving party in the proceeding, and therefore may have been deterred from commencing proceedings without the protection of a suppression order. What is clear is that the authorities relied upon by the Leave Applicant do not support the proposition for which the Leave Applicant contends – namely, that suppression orders will be necessary to prevent prejudice to the proper administration of justice in circumstances where the Leave Applicant wishes to allege that a proceeding has been brought contrary to a statutory mandate, but will nonetheless have the opportunity to respond to any potentially damaging allegations canvassed in the proceeding. The primary judge was correct to observe at Judgment [25] that some additional factor involving the frustration of the processes of the Court would be needed to supply the necessary link between the asserted necessity of the suppression orders and the prevention of prejudice to the proper administration of justice.

91    The primary judge in his reasons clearly identified why the Leave Applicant had failed to identify a connection between the asserted necessity of the suppression orders that he sought and the prevention of prejudice to the proper administration of justice. There is, in my opinion, no reason to doubt the correctness of the primary judge’s conclusion that the suppression orders sought were not “necessary to prevent prejudice to the proper administration of justice” within the meaning of s37AG(1)(a) of the Act.

92    For the above reasons I am not satisfied that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered by a Full Court. That is sufficient to dispose of this application.

93    I am also not satisfied that the Leave Applicant would suffer substantial injustice supposing the decision of the primary judge to be wrong. At Judgment [10], the primary judge found that the prospect of reputational and commercial damage to the Leave Applicant by reason of the disclosure of the allegations against him was obvious. While that prospect is obvious, it must also be borne in mind that the Leave Applicant has had proceedings brought against him in the Supreme Court of New South Wales which contain a significant factual overlap with the present proceeding. I am not satisfied that the mere prospect of reputational damage to the Leave Applicant means that substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong.

DISPOSITION

94    For the reasons given above, the Application for Leave to Appeal and Further Evidence Application will be dismissed. The Leave Applicant will pay the Commissioner’s costs.

95    On 1 March 2024, my chambers circulated draft reasons to the parties, to enable them to consider whether any ancillary orders ought to be made at the hand down of judgment. At a hearing on 6 March 2024, the Leave Applicant informed the Court that the Leave Applicant may file a further leave to appeal application against a part of my judgment, and sought interim suppression orders to preserve the status quo pending any appeal. The Leave Applicant’s position was opposed by the Commissioner and the interveners.

96    I consider that it is appropriate to make interim suppression orders to permit the Leave Applicant to avail itself of any contended for appeal right. I will make interim suppression orders accordingly. Those orders will include an order that these reasons for judgment be published only in redacted and pseudonymised form (so as to remove references identifying the name of the Applicant and medical condition of the Applicant) until the expiry of the period for the Leave Applicant to pursue any right of appeal from this judgment.

Associate:

Dated:    8 March 2024

SCHEDULE OF PARTIES