Richardson v Commissioner of Taxation

REASONS FOR JUDGMENT 1 On Tuesday, 6 March 2007 I granted Ms Susannah Moran ('Ms Moran'), a journalist with Nationwide News Pty Limited ('Nationwide News'), access to documents which had been filed in the New South Wales Registry of this Court by the Commissioner of Taxation ('the Commissioner'), pursuant to O 52B r 5(2) of the Federal Court Rules, on Monday, 5 March 2007. 2 In doing so, I acted under the misapprehension that the documents to which access was being given were the same kind of documents to which access was given in the second half of last year in proceeding NSD 1375 of 2006 between the same parties, namely the Commissioner's Appeal Statement and the applicant's Statement of Facts, Issues and Contentions. They were not. 3 Indeed, I was not aware that the documents to which access was granted were the Commissioner's O 52B r 5(2) documents ('the Order 52B documents'). Had I been aware of this I would have been aware of the nature of the documents and known that some of them were not of the same kind to which access was given in proceeding NSD 1375 of 2006. 4 There is no utility in reciting the circumstances which gave rise to my misapprehension because ultimately I must accept responsibility for the mistake that was made. I hasten to add that nothing Ms Moran wrote in her application for access contributed to the misapprehension. 5 Had I known the nature of the documents to which access was being sought or that the documents were the Commissioner's Order 52B documents, I would not have granted access to any of the documents without giving the applicant the opportunity of submitting why I should not and I have no doubt the applicant would have opposed access to all documents. In the face of that opposition, it is unlikely that I would have granted access to any of the documents because they were limited to: 1. The applicant's 1996 income tax return. 2. The applicant's notice of assessment for the year ended 30 June 1996. 3. The applicant's notice of amended assessment for the same year. 4. Adjustment Sheet for the year ended 30 June 1996. 5. Taxation objection to the Amended Assessment in 3. 6. Notice of objection decision and accompanying reasons. Notably, they did not include any documents of the kind to which access was granted in proceeding NSD 1375 of 2006 between the same parties. 6 On Wednesday, 7 March 2007 an article was published on page 1 of The Australian newspaper entitled 'ATO hits Richo with $2.3m bill, accusing him of fraud'. The article drew on information contained in the documents listed in 3, 4 and 6 in [5] above. The article did not draw on any information contained in the applicant's income tax return for the year ended 30 June 1996. 7 At the request of the applicant's solicitors, I listed the matter before me late on the afternoon of Wednesday, 7 March 2007. The Commissioner also appeared, represented by the Australian Government Solicitor. Following the conclusion of that hearing, I made an order in the following terms: 'Until further order, the proprietor and publisher of The Australian newspaper be prohibited from publishing in that newspaper or in any other newspaper owned and published by it any material concerning the income tax affairs of Graham Richardson in reliance on information obtained by Susannah Moran through her being granted access to Court file no. NSD 120 of 2007 on 6 March 2007.' 8 At the request of the solicitors for Nationwide News I again listed the matter before me late on the afternoon of Thursday, 8 March 2007. Nationwide News was represented by counsel, the applicant by his counsel and the Commissioner by the Australian Government Solicitor. I granted leave to Nationwide News to file in Court a notice of motion, returnable instanter, and supporting affidavit of Robert James Todd sworn that day, seeking, inter alia, an order to vary the order in [7] above. I also gave leave to the applicant to file in Court a notice of motion, returnable instanter, seeking orders that: 1. The leave granted to Ms Moran to have access to the Order 52B documents filed by the Commissioner in this proceeding be revoked. 2. The order in [7] above be varied although, not surprisingly, not in the same manner sought by Nationwide News. 3. The proprietor and publisher of The Australian newspaper deliver to the applicant's solicitor by 4:00 p.m. on 9 March 2007 the following documents in its possession or control: (a) copies of the documents (other than the Application and any Notice of Appearance) on the Court File No. NSD 120 of 2007 to which Susannah Moran was granted access on 6 March 2007; (b) notes and other documents (other than copies of The Australian newspaper of 8 March 2007) recording or referring to information contained in, or obtained from, the accessed documents. 4. The proprietor and publisher of The Australian newspaper destroy, by 4:00 p.m. on Friday, 9 March 2007, all electronic copies of the documents referred to in the preceding order. 9 During the course of hearing submissions from all parties present, I indicated I would revoke the access granted to Ms Moran to the Order 52B documents filed by the Commissioner in this proceeding. Of course, this revocation will only operate on a prospective basis. 10 To avoid the need for me to consider whether or not to make the order sought in 3(a) of the applicant's notice of motion, counsel for Nationwide News sensibly undertook to surrender to the Court the photocopy of the Order 52B documents made by Ms Moran at the New South Wales Registry and the only two other copies of those documents which he said were in the possession or control of Nationwide News. The Court received all three photocopies on Friday, 9 March 2007. 11 The applicant argued that the order in [7] above should be varied by inserting the words 'and from publishing in any other way (except to its lawyers for the purpose of obtaining legal advice)' after the words 'published by it'. Nationwide News argued that the order be varied by deleting all words after the words 'any material' and inserting instead 'derived solely from the return of income of the applicant for the year ended 30 June 1996'. 12 There were two strands to Nationwide News' argument. First, that, even absent misapprehension, access would have been granted to all Order 52B documents with the exception of the applicant's 1996 income tax return. For the reasons I have already indicated in [5] above, this is unlikely and I reject the submission as a basis for varying the order in [7] above. 13 Second, the Court will not make, to which I would add maintain, any order which is futile. The material contained in the Order 52B documents, with the exception of the applicant's 1996 tax return, has been very widely disseminated by prominent publication on the front page of the national newspaper. See Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 54 per Mason J; Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513, at 524 - 525 per Powell J; Cashman v Ackland [2001] NSWSC 863 at [6]. Unlike the situation in Westpac, here the detail has passed into the public domain. So much can be gauged from a comparison of the article, as it appeared in The Australian (Ex 1) and the relevant Order 52B documents. 14 Moreover, Nationwide News submits that it would be a quite unjust, and possibly logistically unworkable, result if Nationwide News, and only Nationwide News, were to be restrained from discussing material of public interest which is now in the public domain and which the rest of the community can and will freely discuss. It is unnecessary to consider the slightly more controversial situation where the publicity is itself by a wrongdoer. Here there was no wrongdoing of any kind. Access was sought to documents the content of which were not even known. And Nationwide News had no way of knowing that the leave which was granted rested on a misapprehension. 15 The applicant argued that republication of untested allegations would only go to further damage the applicant's reputation and that Nationwide News should continue to be restrained in terms of the order in [7] above as varied in the manner sought by the applicant. But that submission does not answer the inescapable - because the detail is in the public domain, any republication is going to be 'old news'; if there is any damage to the applicant's reputation it has already occurred; any further damage will, at the very worst, be marginal. Nor does it answer the difficulty with restraining Nationwide News, but no one else. Counsel for the applicant suggested that there be a general prohibition, but that is not a real answer; any such general restraint would be unworkable. In any event, for the reasons already ventilated, it would be futile. 16 This morning, supplementary written submissions on behalf of the applicant were received in my chambers. At the time of their receipt I had already written these reasons. There is nothing in the supplementary submissions which would cause me to alter what I have written. 17 For these reasons, I propose to: 1. Revoke the access granted to Ms Moran to the Order 52B documents filed by the Commissioner in the proceeding. 2. Vary the order in [7] above in terms of that sought in [1] of Nationwide News' notice of motion. Implicit in this is that I do not propose to vary that order in the terms sought in [4] of the applicant's notice of motion.