Federal Court of Australia

Deputy Commissioner of Taxation v Peever [2025] FCA 460

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the ground in s 37AG(1)(a), the parts identified in Table 1 (as provided to the parties only) of the written Outline of Submissions of the Deputy Commissioner of Taxation filed on 6 December 2024, are not to be published or otherwise disclosed to any person or entity except to the parties to this proceedings, their legal representatives, the Court and Court staff.

2.    The Applicant is to file by 4pm on 14 May 2025 a version of the Outline of Submissions of the Deputy Commissioner of Taxation filed on 6 December 2024, which has been redacted to give effect to Order 1 (Redacted Submissions).

3.    Subject to any party exercising the liberty to apply in Order 4, and unless the Court orders otherwise, Order 1 continue in effect as follows:

(a)    in relation to the personal details of the First and Second Respondent, being their dates of birth, until the death of each of the First and Second Respondent respectively; and

(b)    in relation to the remaining personal and financial details, until 4.00pm 9 May 2035.

4.    The parties have liberty to apply within 7 days of the date of this judgment to advance any alternative duration, provided in Order 3 pursuant to s 37AJ of the FCA Act which is appropriate.

5.    Costs be each parties’ costs in the proceedings.

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

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTION

1    These proceedings were commenced by the Commissioner of Taxation, in which he sought, by way of an urgent ex parte interlocutory application, freezing orders against the First to the Thirty-Fifth Respondents. On 9 December 2024, his Honour Justice Rangiah made certain freezing orders on that urgent ex parte application.

2    The Australian newspaper, as a media representative, has made a non-party access application pursuant to the Court’s process provided in the “Access to Documents and Transcripts Practice Note (GPN-ACCS)” dated 10 February 2023, seeking access to the following documents:

(1)    the Originating Application filed 5 December 2024 by the Commissioner;

(2)    the Interlocutory Application filed 5 December 2024 by the Commissioner;

(3)    the Applicant’s Genuine Steps Statement filed 5 December 2024 by the Commissioner; and

(4)    the Commissioner’s Outline of Submissions filed 6 December 2024 (Commissioner’s Submissions).

3    The Australian’s application is made directly to the Court and without notice to the parties to the proceedings. To ensure the parties were provided with an opportunity to be heard, the Court engaged in correspondence with the parties to ascertain the parties’ views on the release of the documents sought.

4    The result of that correspondence was that:

(1)    there was agreement that some not all of the material sought by The Australian should be provided;

(2)    subject to the Court’s satisfaction, there was agreement as between the parties as to certain redactions which should be made to the material sought by the Australian; and

(3)    the Second to Thirty-Fifth Respondents maintained a select number of additional matters, which it was submitted should also be redacted from the Commissioner’s Submissions.

5    Further, during that process, The Australian was provided what are termed “unrestricted documents” in paragraph 1.3 of the GPN-ACCS, with reference to r 2.32(2) of the Federal Court Rules 2011 (Cth) (FCR). That being documents (1)-(3) from paragraph [2] above.

6    As a result of this process, the limited issues that remained were then the subject of a hearing on 26 March 2025.

7    For the reasons set out below, I am satisfied that in accordance with the principles of open justice, The Australian should be provided with all the documents which it seeks access to, subject to the redactions as are recorded in Table 1. However, to ensure the confidentiality of such matters remains, Table 1 will not be published with these reasons and will only be provided to the parties. The redactions to be applied are limited redactions as were agreed.

THE PRINCIPLES OF OPEN JUSTICE

8    The principle of open justice is fundamental to the common law. As Gibbs J said in Russell v Russell (1976) 134 CLR 495; [1976] HCA 23 at 520:

It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view” (Scott v. Scott [1913] A.C. 417, at p. 441.). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.

9    The New South Wales Court of Appeal described the principle in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 40 at [32] as follows:

32    … The principle of open justice is one of the most fundamental aspects of the system of justice in Australia: John Fairfax Publications Pty Ltd v District Court of New South Wales at [18] (Spigelman CJ; Handley JA and MW Campbell AJA agreeing). Open justice ensures public confidence in the administration of justice: see Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [100] (Heydon J); Hogan v Hinch at [20] (French CJ); R v Tait (1979) 46 FLR 386 at 401–403 (Brennan, Deane and Gallop JJ)…

10    The Full Court referred to this principle in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) (2022) 294 FCR 221; [2022] FCAFC 160 at [23]:

23    Relevantly, the Federal Court Act requires in s 17(1) that, except where that or another Act authorises, “the jurisdiction of the Court shall be exercised in open court”. This reflects the fundamental rule of the common law that, with very limited exceptions, the administration of justice must occur in open court: Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476 per McHugh JA, with whom Glass JA agreed. In addition, at common law, a court can only depart from the principle of open justice if such a course is necessary in the interests of justice: Scott v Scott [1913] AC 417; Dickason 17 CLR at 51; Hogan v Australian Crime Commission (2010) 240 CLR 651.

11    Section 17 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that except in certain circumstances the jurisdiction of the Court shall be exercised in open court. Section 37AF is such an exception: Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272; [2023] FCAFC 22 at [85]. Section 37AE of the FCA Act puts the principles of open justice as a primary matter to be taken into account when considering a suppression order or non-publication order: Lee at [83]. The Court has the power to prohibit or restrict the publication or disclosure of “information” (broadly defined in s 37AA) as provided for in ss 37AF(1)(a) and (b), by making a suppression or non-publication order: Ogawa at [24]. The Court may make a suppression or non-publication order on the basis of the grounds provided in s 37AG(1) and the Court must specify the ground or grounds for making such an order: s 37AG(2); Ogawa at [24]-[25].

12    Each of the grounds in s 37AG(1)(a)-(d) use the word “necessary” which is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 561 at [30] and although it is not to be given an unduly narrow construction, suppression or non-publication orders should only be made in exceptional circumstances: Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377; [2020] FCAFC 44 at [8]-[9]. Whether such an order is necessary will depend on the particular circumstances of the case involved: Country Care at [9].

13    Section 37AG provides that the Court “may” make a suppression or non-publication order on the grounds in ss 37AG(1)(a)-(d), however, that is not to introduce an exercise of discretion. If the Court is satisfied that an order is necessary, it would be an error not to make that order: Hogan at [33]; Country Care at [9]; Lee at [88]. That is, the correctness standard applies, to undertake, what may be a significant evaluative judgment: Farrell v Super Retail Group Limited [2025] FCA 170 at [24] (and the authorities referred to therein).

14    The party seeking the suppression or non-publication order bears the onus, which has been described as “a very heavy one”, to satisfy the Court that that order should be made: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8]; C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [13].

15    Apart from s 37AG(1)(d), which is not relevant in this case, none of the grounds in s 37AG(1)(a)-(c) refer to grounds which include embarrassment, convenience or personal sensitivity to the publication of personal and private circumstances, which is why, of themselves, such matters cannot justify or support the making of a suppression or non-publication order: Ogawa at [27]; Hogan at [43]; Rush v Nationwide News Pty Ltd (2018) ALR 473; [2018] FCA 357 at [187]-[188].

SHOULD THE AGREED REDACTIONS BE MADE?

16    All of the parties agreed that some limited redactions should be applied to the Commissioner’s Submissions before being provided to The Australian. Despite that agreement, the parties also recognised that the Court must still be satisfied that such redactions were necessary in accordance with s 37AG(1)(a) of the FCA Act. These proposed redactions can be described as follows:

(1)    individual dates of birth;

(2)    residential addresses of individuals;

(3)    bank account numbers for various bank accounts; and

(4)    registration and VIN numbers for particular vehicles.

17    These specific matters identified are of a limited extent and are all of a category which can be described as personal details, including sensitive financial information, which would leave the particular individuals vulnerable to identity theft: Lee at [77], [91], [94], and [97]; Bayles by his Litigation Representative Bayles v Nationwide News Pty Ltd (No 3) [2020] FCA 1397 at [2] and [8]; Australian Securities and Investments Commission (ASIC) v Ferratum Australia Pty Ltd (In Liq) (2023) 169 ACSR 553; [2023] FCA 1043 at [58]; Australian Securities and Investments Commission (ASIC) v NGS Crypto Pty Ltd (No 4) [2024] FCA 986 at [16]; Australian Securities and Investments Commission (ASIC) v 24-U Pty Ltd [2025] FCA 321 at [60].  It would bring the administration of justice into disrepute if the Court were to publish such sensitive personal details and financial information.

18    I am satisfied that for the purposes of s 37AG(1)(a) that an order preventing publication of these limited redactions of personal and financial details is necessary to prevent prejudice to the proper of administration of justice.

19    The necessary matters are listed in Table 1, with the paragraphs to the Commissioner’s Submissions where this information is recorded, together with the specific matter to be redacted. Table 1 is not published with these reasons. Those redactions should be applied to the Commissioner’s Submissions, before provision of this document to The Australian.

SHOULD THE DISPUTED REDACTIONS BE MADE?

20    The Second to Thirty-Fifth Respondents sought additional redactions. Those redactions concerned:

(1)    matters relating to the Commissioner’s audit;

(2)    details of income tax returns for certain income years;

(3)    details of assessments issued by the Commissioner;

(4)    the amount and basis of administrative penalties; and

(5)    the Commissioner’s view about certain transactions and actions.

21    The key reasons advanced by the Second to Thirty-Fifth Respondents to support why it is necessary for the Court to make the suppression or non-publication orders were that:

(a)    the material sought to be redacted was limited, just being background, and it was a distraction from the real issues in the context of the Commissioner’s Submissions which were very detailed at 42 pages in length; and

(b)    the Third to Thirty-Fifth Respondents (being corporate entities) were carrying on an enterprise and that if such serious (untested) allegations were made public it may result in reputational damage and loss of a business opportunity.

22    The Second to Thirty-Fifth Respondents rely on s 37AG(1)(a) of the FCA Act.

23    The position of the Second to Thirty-Fifth Respondents commenced by submitting that this matter should be considered as The Australian’s request made pursuant to r 2.32(4) of the FCR. Rule 2.32 provides for the inspection of documents. Rule 2.32(2) provides that a person who is not a party (which would include The Australian) can inspect certain documents, referred to as “unrestricted” documents in GPN-ACCS. Any document falling outside the documents listed in r 2.32(2) are treated as a “restricted” document (a term defined at paragraph 1.3 of, and used in, the GPN-ACCS). Rule 2.32(3) expressly provides that a person who is not a party is not entitled to inspect a document, relevantly that the Court has ordered be confidential or is forbidden from or restricted from publication. The note to this rule refers to s 37AF and s 37AI of the FCA Act. Rule 2.32(4) provides that a person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect. In this context, reliance was placed on Deputy Commissioner of Taxation v Hawkins (2016) 341 ALR 255; [2016] FCA 164 at [7] that members of the public do not have an unfettered right to inspect the documents in the proceeding but may be given leave pursuant to r 2.32(4) of the FCR. Furthermore, the principle of open justice is not a free standing right and may be restricted where the interest of justice require otherwise: Hawkins at [8]; Baptist Union v Roberts (2015) 241 FCR 135; [2015] FCA 1068 at [27].

24    However, r 2.32 of the FCR cannot be read in isolation. It must be read in the relevant legislative context of the FCA Act, particularly Part VAA. In Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 at [8] the following observation with which I agree, was made:

8    … it would not be appropriate to make an order engaging the terms of r2.32(3) in relation to inspection where the Court was not satisfied that the power in s37AF(1) should be exercised on the basis of one of the grounds in s 37AG(1). In the face of the legislative scheme represented by Division 2 of Part VAA of the FCA Act, the content of the term “confidential” in r 2.32(3) should be construed commensurately with the grounds set out in s 37AG of the FCA Act, read with s37AE and s37AF.

25    The real controversary is whether any suppression or non-publication orders should be made, including the additional redactions sought by the Second to the Thirty-Fifth Respondents. That requires the Second to the Thirty-Fifth Respondents to discharge the “heavy” onus and establish that suppression is “necessary” on the basis of s 37AG(1)(a) of the FCA Act.

26    The arguments advanced for the Second to Thirty-Fifth Respondents were enunciated in ten points.

27    First, as the principle of open justice is “a” primary consideration, not “the” primary consideration, this, so it was submitted, supports the limited redactions sought. The position advanced is not one where entire documents are sought to be suppressed and as such other primary considerations mean that these matters should be redacted. The majority of the document, being the Commissioner’s Submissions, would be available and the additional matters sought to be redacted, as described above at [20], should be redacted. This was put on the basis that it was necessary to prevent prejudice to the proper administration of justice.

28    Although the position advanced by the Second to Thirty-Fifth Respondents may appear reasonable and seek to align with the principles of open justice, that cannot of itself support the ground in s 37AG(1)(a) as a basis for suppression or non-publication. Whether all of the material was relevant, critical or provided for context and background, it was included in the Commissioner’s Submissions, which was part of the material before the Court, on the application for the freezing orders. Those submissions were considered and read in open court, on the urgent ex parte application and orders were made. I am unable to accept the submission that some assessment or degree of relevance would support a finding that such material should be redacted as it is necessary to prevent prejudice to the proper administration of justice. Further, more restrained or limited redactions still need to satisfy the requirements of s 37AG(1)(a). The fact that such an approach is taken cannot, of itself, support that such material should be redacted as it is necessary to prevent prejudice to the proper administration of justice.

29    Second, the Second to Thirty-Fifth Respondents rely on there being no right of access to Court documents, and that the principle of open justice, is just that, a principle and not a right. This is correct, in so far as it goes. However, the Second to Thirty-Fifth Respondents must satisfy the ground in s 37AG(1)(a) to support the Court making a suppression or non-publication order. Absent the Court exercising the power in s 37AF, which requires the Second to Thirty-Fifth Respondents to discharge the “heavy” onus and establish that it is “necessary” to make such orders, on the grounds from s 37AG(1), the principle of open justice usually supports the disclosure of the material deployed in open court: Lee at [86]. Furthermore, “[t]here was an obvious public interest in disclosing the material, namely the public interest in understanding the evidentiary basis on which the court exercised an invasive power”: Lee at [86].

30    Third, the Second to Thirty-Fifth Respondents argued that there is no requirement to demonstrate “exceptional circumstances”. This submission was made with reference to HIH Insurance Australia Ltd & Ors FAI Insurance Ltd (In Liquidation) & Ors v Guy Carpenter & Co Pty Ltd [2006] NSWSC 128 at [21]. There Hoeben J stated:

21    As a start point I do not accept the proposition put forward by the applicants that the principle of open justice requires that access be granted unless there are exceptional circumstances why it should not be granted.

31    This was in the context of considering an application for documents under the Uniform Civil Procedure Rules 2005 (NSW) and Practice Note SC Gen 2 (in that court).

32    However, the Full Court of this Court (by which I am bound), when considering s 37AF and s 37AG of the FCA Act, has expressly stated that “[s]uppression or non-publication orders should only be made in exceptional circumstances”: Country Care at [8]; see also Commonwealth of Australia v De Pyle [2024] FCAFC 43 at [27], endorsing these principles.

33    As such, I do not accept this submission. In this Court, the requirements of s 37AG will usually only be met in exceptional circumstances, which will support the making of suppression or non-publication orders.

34    Fourth, the Second to Thirty-Fifth Respondents submit that r 2.32(4) strikes a balance between what a non-party is able to freely access, being unrestricted documents in r 2.32(2), and what are restricted documents. This was submitted to tend to support the additional limited redactions sought. The purpose of the rule may well strike a balance and facilitate a mechanism by which non-parties can access other documents, generally referred to as restricted documents: see paragraph 1.3 of the GPN-ACCS. However, it is to be read together with the overarching legislative scheme in Division 2 of Part VAA of the FCA Act. That includes s 37AE, which provides that “[i]n 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.” The Court’s power to make orders under s 37AF requires the Court to be satisfied of one of the grounds in s 37AG(1), each ground of which must be established as being “necessary”. As such, I do not interpret r 2.32(4) as tending towards support for the proposed additional redactions sought by the Second to Thirty-Fifth Respondents.

35    Fifth, the Second to Thirty-Fifth Respondents rely on the taxpayers’ right to request a private hearing before the Administrative Review Tribunal in Part IVC review proceedings under the Taxation Administration Act 1954 (Cth) (TAA), which might be relevant to whether a suppression order is necessary under s 37AG(1)(a) of the FCA Act. This submission was made with reference to Lee at [104]. However, that paragraph from Lee must be read in the context of the surrounding paragraphs from [100]-[105]. There the Full Court explained that the disclosure of the material did not result in any loss of the statutory right to have the Part IVC proceedings in the Tribunal, pursuant to s 14ZZE determined in private. Merely seeking a private hearing in the Tribunal cannot have the automatic consequence that any information deployed in open court in other proceedings should be the subject of a suppression order, if the proceedings are in some way related. However, depending on the particular circumstances of a case, the practical utility of that statutory right to have the hearing in private might be diminished. The Full Court did not accept the broad submission that the suppression orders were necessary to prevent the proper administration of justice in connection with the statutory right in s 14ZZE, as it would rob them of the practical utility of that right. The Full Court observed that the Part IVC proceedings would likely include a substantial amount of different evidence to that adduced on the ex parte application.

36    This reasoning and approach can be applied to the circumstances of this case. The Second to Thirty-Fifth Respondents put this submission at a high level of abstraction, similar to how it was advanced in Lee. No particular reason was advanced. The Second to Thirty-Fifth Respondents will, if they seek to review any objection decision in the Tribunal (of course, those provisions do not apply to a taxation appeal in this Court), be able to seek a private hearing pursuant to s 14ZZE of the TAA. This submission, in the absence of a specific, particular reason, does not support the making of the additional redactions, by way of an order for suppression or non-publication orders.

37    Sixthly, the Second Respondent relied on the reasoning in A v Commissioner of Taxation [2016] FCA 1307 and says that it is applicable to the circumstances of this case.

38    The Second Respondent has provided a short affidavit dated 24 March 2025, which in a section headed “Prejudice to me”, seeks to provide evidence of a business opportunity concerning an offshore mining company, which is majority owned by a foreign government. The Second Respondent says that these business opportunities are “wholly attributable to my personal contacts.” He also says that “contractors and consultants may refuse to work with me if such serious allegations were made public” and that these “allegations have not yet been tested”. That is, he relies on damage to his reputation and consequential commercial damage to the Sixth Respondent, which he is concerned may arise from disclosure of the nature of the allegations made against him.

39    I accept there is a prospect of reputational damage arising.

40    In A orders were sought pursuant to s 37AF, including anonymisation of the parties. The application was one for judicial review seeking to set aside various notices issued to the applicant by the Commissioner. The notices required information to be provided about his own and various related companies tax affairs. The Commissioner had conducted a covert audit and issued notices of amended assessment which substantially increased the applicant’s taxable income. The Court described the applicant’s position at [6] in terms which were deliberately not meant to provide sufficient identifying material. The evidence before the Court from the group’s Chief Executive Officer was that the revelation of the fact that the applicant was involved in a dispute with the Commissioner, in which it was alleged that the applicant had engaged in fraud and evasion was likely to have three effects, being:

(a)    a negative impact on the reputation of the applicant;

(b)    a negative impact on the business interests of the group of companies with the applicant was associated with; and

(c)    industry participants with which the group transacts its business would be less likely to do business with it in the future.

41    The Court in A at [7] described the business in which the group was involved as “substantial” in an industry which was “large and important”. There was also evidence that the group’s clients commonly asked, during negotiations leading to transactions with it, whether any of the directors are presently accused of any crime. Although the applicant was not a director, he was sufficiently closely associated with the group that it could be said that any reputational damage to him, will accrue to the group. At [8], the Court accepted these matters and four additional factual matters which supported the making of orders under s 37AF. At that stage in the proceedings, the whole of the dispute was confidential and was not the subject of Court proceedings under Part IVC of the TAA: A at [9].

42    In A, a similar approach to that employed by the Court in ASE16 v Australian Securities and Investment Commission (2016) 112 ACSR 36; [2016] FCA 321 at [86]-[94], was adopted, where the Court made orders pursuant to s 37AG(1)(a) of the FCA Act. The key factor underpinning the orders in ASE16 was the “likely detriment and/or commercial disadvantage to the applicants' business if their names were disclosed in connection with the litigation”. The key aspect in A, was the “commercial damage which will accrue to the group, and the inability of the applicant usefully to respond to the Commissioner’s fraud and evasion opinions…”. The respective Courts in ASE16 at [91] and A at [14] each had evidence that the applicants would suffer more than mere embarrassment or inconvenience. Rather, the applicants in each case established that they would experience reputational scrutiny and damage which would also damage their businesses and give their competitors a competitive advantage.

43    When A was delivered, the Full Court had not yet heard the appeal from ASE16. In the appeal from ASE16, the Full Court set aside the suppression orders made at first instance, in Oreb v Australian Securities and Investment Commission [2016] FCAFC 192 (the first instance judgment was subsequently published as Oreb v Australian Securities and Investment Commission (2016) 247 FCR 316; [2016] FCA 321). The appellants’ in Oreb sought to maintain the pseudonym which had been assigned to them. The Full Court considered the primary judge’s reasons in ASE16 at [7]-[12], particularly noting [88]-[89] (which were part of the reasons relied upon in A at [14]). The Full Court in Oreb held at [16] that the orders made by the primary judge were beyond the Court’s jurisdiction. In addition, and in any event, the Full Court also held at [18] that the orders made by the primary judge were beyond what was necessary to protect any legitimate interests of the appellants in the administration of justice. The Full Court also observed at [18] that by the time of the making of the orders at first instance, the appellants’ names and evidence had been in the public domain without any limitation on their publication.

44    Three distinct interpretations of A have thus far been offered: Youseff v Commissioner of Taxation (De-anonymisation) [2024] FCA 1033 at [15]. In addition, A was the subject of observation in Lee at [92]-[94].

45    The arguments advanced in Lee relied on matters of reputational, financial or commercial damage: Lee at [13]-[18]. Reliance was placed on A, at first instance: Lee at [69]-[70]. The Full Court at [94] observed that the necessary link, between the reputational and commercial harm to s 37AG(1)(a) was apparent in A.

46    I respectfully agree and adopt the observations in Federal Commissioner of Taxation v [Respondent] (2023) 117 ATR 45; [2023] FCA 1176 at [24] that if A stood for the broad proposition that damaging allegations which may not be tested in the proceeding, would be sufficient to support a ground in s 37AG(1)(a), that is difficult to reconcile with the authorities which hold that reputational damage, inconvenience and embarrassment do not in themselves justify or support the making of a suppression or non-publication order: Ogawa at [27]; Lee at [90]; Hogan at [43]; Rush at [187]-[188]. Furthermore, A cannot stand for the proposition that untested allegations of themselves are sufficient to support a conclusion that suppression of such allegations is necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a) of the FCA Act): Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293; [2006] FCA 836 at [28] and [37]; Rush at [191]-[194]; Dye v Commonwealth Securities Limited (2010) 273 ALR 248; [2010] FCAFC 115 at [10]; Reiche v Neometals Ltd (No 2) [2025] FCA 125 at [516].

47    However, it is not necessary to resolve the precise basis of the decision in A for the purposes of this case. This is because the requirement to establish a link between the contended harm and s 37AG(1)(a) of the FCA Act has not been established: Lee at [95]; [Redacted] v Commissioner of Taxation [2024] FCA 185 at [48]-[50] (which was satisfied in A, see Lee at [94]).

48    There are “categories” of situations which arise more regularly than others and which I am willing to make orders protecting, regarding those matters that were agreed as between parties (explained above): Lee at [95].

49    The Second to Thirty-Fifth Respondents written submissions were as follows:

B.     DCT’s interlocutory application ought to be dismissed

7.    There are two key aspects to the DCT’s case as outlined in the written submissions relied upon by the DCT in support of their interlocutory application which were filed on 9 April 2025.

8.    First, the DCT alleges that there has been a “material change in circumstances” which warrants a variation to the Freezing Orders in favour of the orders sought by the DCT.

9.    Second, in very broad terms, the DCT alleges that it has a proprietary claim in relation to the assets and funds the subject of the Freezing Orders, except those in relation to Mr Peever. As a consequence, the funds are held on trust for the Commissioner and ought not be available to be used to pay for legal expenses other than those incurred in relation to the Freezing Order Proceeding and the tax objections. Relatedly, the DCT also says that the interests of justice weigh in favour of making the orders it seeks rather than the orders sought by Mr Peever and the Companies.

50    The oral submissions advanced also did not identify the necessary link. Counsel for the Second to Thirty-Fifth Respondents advanced the argument as “the proper administration of justice oughtn’t entertain such serious allegations of this nature being made public in circumstances where my client hasn’t had an opportunity to explain.” Later arguing that “[t]he proper administration of justice ought not entertain a situation where prejudicial information is made public on an untested basis, where such information was not – was a – was not entirely relevant to the making of the order.”

51    One of the controversies between the Second to Thirty-Fifth Respondents and the Commissioner is whether an enterprise was being conducted. The Second Respondent has given some evidence in relation to this, in relation to the Sixth Respondent. It was also submitted that if the additional matters sought to be redacted were not redacted, the Second to Thirty-Fifth Respondents may be represented as those who do not comply with their tax affairs (and personally of the Second Respondent). However, none of this arises above a submission that as these allegations by the Commissioner are untested and that such matters may cause reputational damage, inconvenience and embarrassment, they should be suppressed.

52    As explained above, A does not stand for such broad propositions and such submissions of themselves are contrary to the authorities mentioned above, which provide that such matters of themselves are insufficient to support a conclusion that suppression of such allegations is necessary to prevent prejudice to the proper administration of justice.

53    In the absence of such a link and because A cannot stand for the broad propositions outlined above, this submission does not establish that a suppression or non-publication order is necessary to prevent prejudice to the proper administration of justice

54    Seventhly, the Second to Thirty-Fifth Respondents relied on Lee and submitted it supported the making of the additional redactions sought. This was in the context, so the argument was advanced, where the objection process was continuing, a review in either the Tribunal or the Court had not yet commenced and a decision as to which avenue would be undertaken, had not been made. However, it was open to the Second to Thirty-Fifth Respondents to have that review in the Tribunal where it could be conducted in private, in accordance with s 14ZZE of the TAA.

55    This was advanced with express reference to Lee at [94], with the reference to A. This was submitted as part of the “cascading argument” advanced by the Second to Thirty-Fifth Respondents. Importantly, as observed by the Full Court in Lee, the Court in A did find the necessary link to s 37AG(1)(a) of the FCA Act.

56    In addition, the Second to Thirty-Fifth Respondents referred to the approach in Lee which was contrary to what was being sought in this case. In Lee, the argument was advanced on an all or nothing basis, whereas the Second to Thirty-Fifth Respondents were only seeking limited redactions. It was submitted that not seeking a “blanket order”, but seeking a very specific order, was important given the observations in Lee. However, it was accepted that the test to be applied was the same, regardless of whether limited redactions were sought or whether an entire document or file was sought to be suppressed. In light of the reasoning in Lee, the submission was maintained that it was relevant to consider the scope of the removal of material from the public arena.

57    Although it may be more difficult for an applicant to satisfy that it is necessary to prevent the prejudice to the proper administration of justice by seeking a “blanket order”, than an applicant who advances a more sensible, reasonable position by only seeking specific redactions that does not, of itself, support the making of a suppression order pursuant to s 37AG(1)(a) of the FCA Act. The requirements to support the link and the ground in s 37AG(1)(a) remain the same, which as already observed, have not been established.

58    Eighth, it was submitted that many of the decisions relied on by the Commissioner in opposition to the additional redactions sought could be distinguished. In particular the matters of Llewellyn and Rush, do not deal with restricted documents.

59    The Commissioner, in written submissions, provided reference to many authorities to outline the necessary relevant principles. The submission was not advanced that such authorities provided a direct case comparison which ought to be followed in this case. As such, this submission does not assist the Second to Thirty-Fifth Respondents establish that the additional redactions sought, ought to be the subject of a suppression or non-publication order.

60    Ninth, no submission was put forward by The Australian. That is so. However, The Australian made its application in accordance with GPN-ACCS. The parties were given notice of it, and it is now to be decided. It is not determinative of the application that The Australian has not put forward any submissions. The Australian has also not withdrawn its application for access to the documents.

61    Tenth, the Second to Thirty-Fifth Respondents submitted that it was unclear why the reasons for judgment of the primary judge for making the freezing orders (which are published) are not sufficient for The Australian to provide accurate reporting to the public. This may not be clear, however that is not the relevant test to be applied and in oral submissions it was accepted that this of itself was insufficient.

62    The Australian has made a request for access to documents. The principles of open justice, as a primary consideration, must be taken into account when determining whether or not to make orders for suppression or non-publication order. Open justice enables the public to understand how the justice system works and facilitates public scrutiny. Where the Court has exercised an invasive power, by way of the freezing orders, there is an obvious public interest in disclosing the material relied upon: Lee at [84]-[86] and see more generally, Country Care at [30]; Ogawa at [26]; Rinehart at [32]; Llewellyn at [25]-[29]; Rush at [186]-[189] and [195]-[197]. It is not the role of the Court to supervise the media report to ensure they report in a fair and accurate way, that is the responsibility of the media themselves: Tasmanian Cricket at [6]; Rush at [193]-[194]; Rinehart at [33] and [54].

63    Finally, the Second to Thirty-Fifth Respondents also sought to advance their position on a cumulative or cascading basis. There was a somewhat inconsistent position advanced by the Second to Thirty-Fifth Respondents in only seeking the limited redactions identified. This was because some of the allegations of concern or similar to those identified were proposed to remain unredacted. It was sought to be explained that this was because the allegations were framed in a “balanced” way. It is difficult to reconcile that position with the one advanced.

64    However, even taking all of the ten matters raised together, the necessary link between any reputational or financial damage and how the limited redactions sought are necessary to prevent prejudice to the proper administration of justice is missing.

65    As such, I decline to make any order by way of suppression or non-publication of the additional redactions sought by the Second to Thirty-Fifth Respondents.

TIME – S 37AJ

66    None of the parties addressed the Court as to the period for which the redactions which are to be made to the Commissioner’s Submissions should be made: s 37AJ of the FCA Act. The Order is to be for no longer than is reasonably necessary to achieve the purpose for which it is made: s 37AJ(2). There is conflicting authority about whether the suppression or non-publication order can be expressed to operate “until further order”: Ferratum at [60]-[66].

67    The dates of birth should be suppressed until the death of each of the individuals concerned: Ferratum at [67].

68    However, the other matters may change. The individuals may move, change their residential address, change or close their bank accounts, or sell vehicles. As such, subject to hearing from the parties, I am provisionally of the view that 10 years is appropriate: Porter v Dye (2022) 402 ALR 659; [2022] FCAFC 116 at [30].

conclusion

69    The principle of open justice is fundamental to the common law. Section 17 of the FCA Act requires, subject to certain exceptions, that the jurisdiction of the Court shall be exercised in open court. Although s 37AF permits suppression or non-publications orders, on the basis of the matters in s 37AG(1)(a)-(d), that provisions must be read together with s 37AE which puts the principles of open justice as a primary matter to be taken into account when considering a suppression order or non-publication order.

70    The parties proposed certain very limited (agreed) redactions be applied to the Commissioner’s Submissions. I am satisfied that for the purposes of s 37AG(1)(a) that an order preventing publication of these limited redactions of personal and financial details is necessary to prevent prejudice to the proper of administration of justice.

71    However, in so far as the Second to Thirty-Fifth Respondents sought additional redactions, I am not satisfied that those redactions are necessary to prevent prejudice to the proper of administration of justice.

Associate:    

Dated:    9 May 2025

SCHEDULE OF PARTIES