As report in Thomson Reuters Weekly Tax Bulletin (Issue 4 of 2014), the Supreme Court of NSW has refused the Tax Commissioner’s application to access a court file in relation to ongoing proceedings involving a family trust. The Tax Office is seeking access to the court file to determine any possible income tax and CGT consequences from a purported extension of the vesting date of the trust (including any professional tax advice given on the matter).
In refusing the Commissioner access to the file, the Court relied on its own “Practice Note SC Gen 2 Supreme Court – Access to Court Files“. The Practice Note states that access to material in any proceedings is generally restricted to parties, except with the leave of the Court. However, the Practice Note provides that:
7. Access will normally be granted to non-parties in respect of:
- pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;
- documents that record what was said or done in open court;
- material that was admitted into evidence; and
- information that would have been heard or seen by any person present in open court,
unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.
The Court said that access to the file was not to be given to the Commissioner prior to the conclusion of the proceedings as the material sought may not have been yet read in open court or admitted into evidence. In this regard, the Court noted that the substantive matter had not yet been concluded and that such materials sought may concern matters that are required to be kept confidential. The Court also noted that to grant such access to the ATO before completion of the matter would mean that the Court itself would have to segregate the documents which have been read in evidence and those subject to confidentiality orders. Noting that the court file is 30 lever arch folders, the Court said this was not its function. While the Court had previously permitted media to have access to specified pleadings or affidavits, the Court said such requests had been for access to a particular document which has been read in open court.
Nevertheless, the Court said it would consider granting the ATO access to inspect the relevant material – but only after the parties to the case had been afforded an opportunity to check that any material not in evidence or subject to confidentiality orders had been redacted. To this end, the Court said the ATO should make an application specifying with particularity (and not merely by reference to their subject matter or content) the documents to which it seeks access, and serve notice of the application on the parties. Similarly, the Court required the ATO to lodge a notice of motion with a return date, and appear in person for that purpose, rather than simply emailing a request to the Court.