Deputy Commissioner of Taxation v Nicholls [2009] FCA 122 (19 February 2009)

Last Updated: 20 February 2009

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Nicholls [2009] FCA 122

DEPUTY COMMISSIONER OF TAXATION v ARTHUR CHRISTOPHER NICHOLLS

SAD 137 of 2008

MANSFIELD J
19 FEBRUARY 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 137 of 2008

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Applicant
AND:	ARTHUR CHRISTOPHER NICHOLLS Respondent

JUDGE:	MANSFIELD J
DATE:	19 FEBRUARY 2009
PLACE:	ADELAIDE

REASONS FOR RULING

1. The issue has arisen as to public access to this Court file in this matter.
2. The parties were notified of the issue and have made submissions.
3. The applicant does not oppose the public having access to the documents on the file which are governed by O 46 r 6(1) and (2) of the Federal Court Rules (Cth). No other documents on the file have been read or relied upon in open Court. The respondent opposes the documents covered by O 46 r 6(2) and any other documents on the file, being available for inspection. He has submitted that “the proceedings” should be confidential, and that alternatively, the documents on the file should be ordered to be confidential and not available for inspection because they “relate specifically to the confidential tax affairs of my wife and me”. He has sought an order in respect of the contents of the file under s 50 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and relying upon the “confidentiality” provisions of the “taxation laws” as explained in the Australian Taxation Office Taxpayer’s Charter January 2007. Section 50 of the FCA Act empowers the Court to prohibit the publication of evidence as appears to the Court to be necessary to prevent prejudice to the administration of justice or the security of the Commonwealth.
4. The respondent did not identify any particular provision of the Taxation Administration Act 1953 (Cth) or the Income Tax Assessment Act 1936 (Cth) which might apply to protect from publication the documents on the Court file which are governed by O 46 r 6(2) of the Rules. Nor did he identify any content of those documents which might in fact disclose information about the taxation affairs of himself or his wife. Nor did he identify any basis upon which s 50 might be enlivened in respect of that material.
5. I see no reason why O 46 r 6(1) and (2) should not apply so as to make available for public inspection the documents to which it refers. They are:
   
   • Application of 10 July 2008
     
   • Order of FM Brown of 17 July 2008
     
   • Amended Application of 17 July 2008
     
   • Order of FM Simpson of 22 August 2008
     
   • Order of FM Simpson of 29 August 2008
     
   • Order of FM Simpson of 9 September 2008
     
   • Order of Mansfield J of 15 October 2008
     
   • Order of Mansfield J of 24 October 2008
     
   • Order of Mansfield J of 28 November 2008
     
   • Order of Mansfield J of 24 December 2008
     
   • Order of Mansfield J of 15 January 2009
     

They are the documents which identify why the Court is addressing the circumstances at all, and then they simply record what has occurred in open Court.

6. The respondent also sought an order preventing access to those documents whilst he sought and obtained legal advice. In the proceedings generally to date, he has been represented by counsel, although not on this particular issue. I may have been disposed to make such an order were he able to identify some possible argument in support of the confidentiality which he seeks with respect to those documents. However, he has been unable to do so. He did not identify any content of any of those documents which might attract a confidentiality order, either under any taxation legislation or under s 50 of the FCA Act. Moreover, the respondent, through his counsel, did not suggest at any time during the events to which the documents relate, that the Court should be or should have been closed. I note also that s 50 of the FCA Act may not apply in any event to any of the documents save to the extent that they relate to the name of a party, as they are not evidence. The name of the parties has now become public information by the proceedings, and the conduct of the proceedings to date, in open Court.
   

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Mansfield.

Associate:

Dated: 19 February 2009

Counsel for the Applicant:	L Chapman
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	The Respondent appeared in person

Date of Hearing:	9 February 2009
Date of Written Submissions:	Applicant’s: 4 February 2009
	Respondent’s: 3 February 2009 and 11 February 2009
Date of Ruling:	19 February 2009