On Wed 12.10.2016, the Full Federal Court refused a taxpayer’s request for suppression or non-publication orders under Pt VAA of the Federal Court of Australia Act 1976, in particular s37AF, in relation to certain information claimed to be confidential information.
The Court gave judgment on 22 September 2016 on the substantive issues in the appeal, in Tech Mahindra Limited v FCT [2016] FCAFC 130, in which it dismissed the taxpayer’s appeal, effectively upholding the judgment of Perry J (in Tech Mahindra Limited v FCT [2015] FCA 1082) that a company resident in India and registered in Australia, and which carried out IT services for Australian clients both from its permanent establishment (PE) in Australia and by employees located in India, was liable to tax in Australia (Australian royalty withholding tax) in respect of part of the income derived from the services provided from India.
The taxpayer was concerned the release of the information would damage its commercial interests if the information, which was highlighted, a small fraction of the original claim, fell into the hands of its competitors.
After reviewing the matter, the Court said it did not accept that a suppression order or non-publication order was necessary to prevent prejudice to the proper administration of justice in respect of the information specified.
(Tech Mahindra Limited v FCT (No 2) [2016] FCAFC 136, Full Federal Court, Robertson, Davies and Wigney JJ, 12 October 2016.)
[LTN 197, 12/10/16]
FEDERAL COURT OF AUSTRALIA ACT 1976 – SECT 37AG
Grounds for making an order
(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.