Federal Court of Australia

Deputy Commissioner of Taxation v Wu (No 2) [2024] FCA 269

ORDERS

THE COURT ORDERS THAT:

1.    The application for an order under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) in respect of [41(2)] and [61(1)] of the reasons for judgment in Deputy Commissioner of Taxation v Wu [2024] FCA 250 is dismissed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

THAWLEY J:

1    On 18 March 2024, the Court made various orders, including orders under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), in relation to certain material which had been relied upon by the Deputy Commissioner of Taxation in obtaining freezing orders against the respondents.

2    Reasons for making those orders were delivered on 18 March 2024, but publication of those reasons was restricted to the parties until 4:00pm on 20 March 2024 to facilitate any application the respondents might wish to make, including for redactions to any part of the reasons for judgment: Deputy Commissioner of Taxation v Wu [2024] FCA 250.

3    The respondents have now applied for orders under s 37AF(1) of the FCA Act to suppress publication of parts of [41(2)] and [61(1)] of the reasons delivered on 18 March 2024.

4    The content of those paragraphs must be read in the context of the reasons for judgment as a whole, particularly the matters referred to in [16] of those reasons. The facts include that the Commissioner has issued assessments to the respondents in amounts of over $200m and sought and obtained freezing orders by reason of his concern of a risk of dissipation of assets. The material over which no suppression order has been granted indicates that the Commissioner has taken the view that:

(a)    the respondents failed to declare income from the sale of shares in Nature’s Care by entities in the British Virgin Islands which the Commissioner considers are each a “Controlled Foreign Company” of the respondents; and

(b)    two of the respondents, Mr Alex Wu and Ms Jina Chen (the parents of Mr Michael Wu and Mr Jack Wu), sought to mislead the Commissioner during an audit about the true nature of transactions examined during that audit.

5    The material also indicates that the position of the respondents includes that the British Virgin Islands entities are not Controlled Foreign Companies and that they do not have a direct or indirect interest in those entities.

6    There has not yet been any adjudication by a Court or Tribunal about whether the Commissioner’s position or the respondents’ position is correct. No Court of Tribunal has made any finding of wrongdoing by the respondents on the basis of what the Commissioner contends. More specifically, there has been no adjudication of whether Mr Alex Wu and Ms Jina Chen either sought to, or did, mislead the Commissioner during the audit.

7    I am not satisfied that the parts of [41(2)] and [61(1)] of the reasons for judgment delivered on 18 March 2024 in respect of which an application is made should be suppressed. An order under s 37AF(1) is not necessary on the ground in s 37AG(1)(a) when those paragraphs are, as they must be, read and understood in context, particularly in the context of [16]. Further, I am not satisfied that sufficiently substantial commercial or other harm would arise from the general statement of the Commissioner’s position summarised in paragraphs [41(2)] and [61(1)], particularly in a context where the allegations are unexplained by any evidentiary material and are known not to have been tested in the proceedings. I accept that the respondents may suffer commercial and reputational harm as a result of the steps the Commissioner has taken in issuing assessments and obtaining freezing orders and as a result of the information which is in the public domain about the dispute between the Commissioner and the respondents. I do not accept that the general summary in [41(2)] and [61(1)] is likely to cause any additional harm.

8    For those reasons, the application for an order under s 37AF(1) in relation to [41(2)] and [61(1)] of the reasons for judgment of 18 March 2024 is dismissed.

Associate:

Dated: 20 March 2024