Hua Wang Bank Berhad v Commissioner of Taxation (No 16) [2014] FCA 1407

Hua Wang Bank Berhad v Commissioner of Taxation (No 16) [2014] FCA 1407

The recusal application failed because the adverse credit findings and comments in the principal judgment did not create a reasonable apprehension that Perram J would not bring a fair mind to the distinct question whether suppression orders should be revoked. The suppression orders were set aside because the criminal proceedings that originally justified them had been withdrawn, possible future charges were contingent and unlikely to reach a jury for a substantial period, and ordinary criminal trial safeguards and stay jurisdiction meant there was no substantial risk to the administration of justice requiring continued suppression.

Jurisdiction
Australia
Judgment Date
19 December 2014
Procedural Posture
Applications Concerning Revocation of Non Publication Orders and Judicial Recusal / After Delivery of Reasons in Principal Tax Proceedings; Hearing on 19 December 2014
Outcome
Recusal application dismissed; orders made on 8 April 2014 set aside; temporary non-publication order made until 11:30 am on 19 December 2014; Mr Gould and Mr Leaver ordered to pay the Commissioner's costs of the application to set aside the orders of 8 April 2014.
Legal Topics
['non Publication Orders' 'suppression of Reasons for Judgment' 'apprehended Bias' 'recusal' 'open Justice' 'pending or Possible Criminal Proceedings']
['practice and Procedure' 'taxation'] ['non Publication Orders' 'suppression of Reasons for Judgment' 'apprehended Bias' 'recusal' 'open Justice' 'pending or Possible Criminal Proceedings']

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Procedural Posture

Applications Concerning Revocation of Non Publication Orders and Judicial Recusal / After Delivery of Reasons in Principal Tax Proceedings; Hearing on 19 December 2014

Legal Issues

  1. 1 ["Whether Perram J should recuse himself from hearing the Commissioner's application to revoke suppression orders because of adverse credit findings and the description of behaviour as 'disgraceful' in the principal reasons." 'Whether orders made on 8 April 2014 suppressing the reasons for judgment should be set aside where criminal proceedings against Mr Gould and Mr Leaver had been withdrawn but an investigation was ongoing.' 'Whether possible future criminal proceedings created a sufficient risk to the administration of justice to justify continued suppression under s 37AF of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

The recusal application failed because the adverse credit findings and comments in the principal judgment did not create a reasonable apprehension that Perram J would not bring a fair mind to the distinct question whether suppression orders should be revoked. The suppression orders were set aside because the criminal proceedings that originally justified them had been withdrawn, possible future charges were contingent and unlikely to reach a jury for a substantial period, and ordinary criminal trial safeguards and stay jurisdiction meant there was no substantial risk to the administration of justice requiring continued suppression.

Court Disposition

Recusal application dismissed; orders made on 8 April 2014 set aside; temporary non-publication order made until 11:30 am on 19 December 2014; Mr Gould and Mr Leaver ordered to pay the Commissioner's costs of the application to set aside the orders of 8 April 2014.

Orders

  • ["The applicant's, respondent's or respondents' recusal application be dismissed." 'The orders made on 8 April 2014 be set aside.' 'Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the reasons for decision in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 not be published to any...