Deputy Commissioner of Taxation v Kelly [2007] FCA 1109 (24 July 2007)

Last Updated: 10 August 2007

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Kelly [2007] FCA 1109

DEPUTY COMMISSIONER OF TAXATION v GRAHAM EDMUND KELLY, SILVERCOURT PROPERTIES PTY LTD AND PALL MALL FINANCE COMPANY LIMITED
NSD 1291 OF 2007

ALLSOP J
24 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1291 OF 2007

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Applicant
AND:	GRAHAM EDMUND KELLY First Respondent SILVERCOURT PROPERTIES PTY LTD Second Respondent PALL MALL FINANCE COMPANY LIMITED Third Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	24 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The public may have access upon request to:

a) document 16 (‘outline of contentions’);
b) document 17 (order of Emmett J, 9 July 2007, redacted);
c) document 20 (‘document confidentiality management’);
d) document 18 (copy of a redacted affidavit of Prashant Singh, sworn 9 July 2007).

2. Subject to further order, the public may have access upon request to further documents placed on the file entitled ‘document confidentiality management documents’, being documents agreed between the solicitors for the parties as to what documents have been dealt with in what way and what confidentiality orders have been made.




Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1291 OF 2007

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Applicant
AND:	GRAHAM EDMUND KELLY First Respondent SILVERCOURT PROPERTIES PTY LTD Second Respondent PALL MALL FINANCE COMPANY LIMITED Third Respondent

JUDGE:	ALLSOP J
DATE:	24 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Ms Suzannah Moran, a journalist working for Nationwide News Ltd, and Mr Michael Evans, a journalist working for John Fairfax Ltd, made individual media requests for access to documents on 20 and 19 July 2007, respectively. Those requests, in effect, cover five documents, being documents 16, 17, 18, 19 and 20 on the Court’s file. I will make orders for access in terms which I will identify in relation to documents 16, 17, 20 and 18. The order will be as follows:

That the public may have access upon request to document 16 ("outline of contentions"), document 17 (order of Emmett J, 9 July 2007, redacted), document 20 ("document confidentiality management") and document 18 (copy of a redacted affidavit of Prashant Singh, sworn 9 July 2007).

2 Those documents are either the equivalent of pleadings or particulars of the case (see document 16), a useful management document for the purposes of understanding what is confidential and what is not (see document 20), or evidence read in open court in support of orders (see documents 17 and 18).

3 Given that is the character of the documents, I think it is appropriate that they be made available to those interested in the conduct of the case. One matter should be noted about document 18. Paragraphs 10 and 11 in their current form make certain statements about a firm of accountants and the conduct of its business. Those statements are made generally and raise what will be serious issues relating to people involved in the investigation. The matters there identified were deposed to by Mr Singh in support of confidentiality orders to underpin the integrity of the investigation currently being undertaken, known publicly, I understand, as Operation Wickenby. They were not directed by the deponent and were not relied on in this context by the applicant as commenting upon the behaviour or position of Mr Kelly. That is not to say that issues may not arise in relation to Mr Kelly’s position, but these paragraphs were not read to assert any wrongdoing by Mr Kelly, but rather to protect the integrity of the investigation.

4 Document 19 is an unread affidavit of Carolyn Malcolm. Apparently there was some oversight in earlier evidence tendered before Emmett J. The affidavit has been filed in a sense to correct that material. However, there is no application before me in which any party seeks a discharge of any order on the basis of misleading the Court, or a failure to disclose anything before the Court. The affidavit may remain and should remain on the file in case any such application is made in those circumstances. I do not see any good basis for the disclosure of the affidavit, therefore the application for access to document 19, the affidavit of Ms Malcolm, is refused. I will also make an order that:

Subject to further order, the public may have access upon request to further documents entitled ‘document confidentiality management documents’, being documents agreed between the solicitors for the parties as to what documents have been dealt with in what way and what confidentiality orders have been made.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated: 9 August 2007

Counsel for the Applicant:	Miss R M Henderson
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the First and Second Respondents:	Mr A Robertson SC
Solicitor for the First and Second Respondents:	Minter Ellison
Counsel for the Third Respondent:	Mr D Crennan
Solicitor for the Third Respondents:	Colin Biggers & Paisley
Counsel for Nationwide News Ltd & John Fairfax Ltd (intervening)	Ms S Chrysanthou
Date of Hearing:	24 July 2007
Date of Judgment:	24 July 2007