DCT v Palmer
[2019] VCC 1401
•3 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-02619
| Deputy Commissioner of Taxation | Plaintiff |
| v | |
| Michael Palmer | Defendant |
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JUDGE: | Judicial Registrar Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2019 (additional written submissions filed 11 June 2019, 24 June 2019, 12 August 2019, 14 August 2019 and 16 August 2019) | |
DATE OF RULING: | 3 September 2019 | |
CASE MAY BE CITED AS: | DCT v Palmer | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1401 | |
REASONS FOR RULING
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Subject: TAXATION LAW - Jurisdiction
Catchwords: Conditional Appearance – Objection to Jurisdiction - Standing of Deputy Commissioner of Taxation – Defendant a person – Jurisdiction of County Court – Jurisdiction of Judicial Registrar
Legislation Cited: Commonwealth Constitution, ss 75, 76, 77; County Court Civil Procedure Rules 2018 (Vic), Rule 8.08; Judiciary Act1903 (Cth), s39; Taxation Administration Act1953 (Cth), Schedule 1
Cases Cited:Daniels v DCT [2007] SASC 114; DCT v Levick (1999) 168 ALR 383 at 392; Dooney v Henry (2000) 174 ALR 41; Garrett v Foster’s Wine Estates Limited [2007] FCA 253; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154; Swee & Yen Tay v Migration Review Tribunal (2009) 178 FCR 1
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A. R. Wilson | Australian Government Solicitor |
| For the Defendant | Mr M. Palmer |
JUDICIAL REGISTRAR:
Introduction
1 Michael has been sued by the Deputy Commissioner of Taxation (“DCT”) in debt. The DCT claims that Michael paid no income tax for the nine year period, from 1 July 2007 – 30 June 2016, and that his income tax debt for this period is $1,019,524.20, plus penalty amounts totalling $561,723.33.
2 Michael says that there is no jurisdiction for the DCT to bring, or the Court to hear, the DCT’s claims. He has applied for the proceeding to be struck out.
3 Michael relies upon eight grounds which he says establish that the proceeding should be “struck out”:[1]
[1]See my Order of 4 February 2019. Since 4 February 2019, Michael has made extensive oral and written submissions, which have been extremely wide ranging in their nature. As far as possible, I have confined these reasons to those submissions, which go to the 8 specified grounds raised by Michael on 4 February 2019.
1. that the purported Deputy Commissioner of Taxation is a non-entity;
2. that the purported Deputy Commissioner of Taxation has no authority to sue the Defendant;
3. that the “Michael Gareth Palmer” referred to in the Writ and Statement of Claim must be a corporation or artificial entity, which is not the person who made submissions today in Court, known as Michael Gareth Palmer;
4. that the DCT cannot collect money on behalf of a purported Australian government authority (the Australian Taxation Office) but only on behalf of the Commonwealth;
5. that the amount sought by the DCT was fraudulent and incorrect;
6. that as a claim for breach of statute this proceeding was a criminal proceeding in nature, and ought to be brought in the name of the Queen;
7. that the Defendant required trial by jury; and
8. that I, as a Judicial Registrar, lacked jurisdiction to do anything other than strike the proceeding out.
4 Michael is not represented by a lawyer in these proceedings. It is possible that this is because he lacks the funds to pay a lawyer. It is also possible that it is because he is of the view that he is better placed to make the arguments he wishes to make himself. He appeared to me to be intelligent, articulate and experienced with Court procedure. Nevertheless, given he did not have a lawyer representing him, I have allowed him significant leeway in relation to strict compliance with the usual procedural requirements of the Court.
Procedural background
5 The DCT filed its Writ against Michael on 19 June 2018. On 28 November 2018, Michael filed a conditional appearance. On 3 December 2019, I made some case management directions orders. I had recorded in the “Other Matters” section of the note of my orders that “The Defendant’s conditional appearance will have effect as an unconditional appearance unless an application is made by Summons under rule 8.08(3) of the County Court Civil Procedure Rules 2018 (“the Rules”) by 4 pm on 13 December 2018”. Sub-rules 8.08(3) and (4) of the Rules provide:
(3) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless on application by the defendant the Court otherwise orders.
(4) Application under paragraph (3) shall be made by summons within 14 days after the day the conditional appearance is filed.
6 On 7 December 2018, the Court received an email from Michael attaching a document entitled “Notice to Show Cause” addressed to me. It stated as follows:
“To Judicial Registrar Tran,
You are required to show Just Cause with respect to:
1.The County Court of Victoria being a court that complies with Chapter III of the Commonwealth Constitution, under the Crown of the United Kingdom.
2.The presiding Judge proving that he/she has sworn an oath to the Queen of the United Kingdom.
3.The County Court Civil Procedure Rules 2008 complying with a Parliamentary Order as per section 87 of the Judiciary Act 1903 (Cth).
4.Why the County Court of Victoria is allowing a matter to proceed when consent cannot be possible because a non-entity – in this case, a purported Deputy Commissioner of Taxation who has not been lawfully appointed – cannot lawfully contract with an entity – in this case, a subject of the Crown of the United Kingdom.
5.Why the County Court of Victoria is allowing this proceeding to take place with the Plaintiff being listed as a purported Deputy Commissioner of Taxation, for the non-legal entity, the Australian Taxation Office, instead of the Plaintiff being listed as The Crown/The Queen/Regina/R.”
7 There then followed correspondence between Michael and my Associate, in which Michael was reminded that if he did not file a summons under Rule 8.08(3) his appearance would become unconditional. Michael said that he did not consent to being bound by the Rules.
8 On 4 February 2019, a directions hearing was listed before me. Michael had not filed a summons under Rule 8.08(3) within 14 days of his conditional appearance. However, given he had throughout made it plain to the DCT and the Court that he maintained his objection to the jurisdiction of the Court, and sought orders striking out the proceeding on the grounds of lack of jurisdiction (and taking into account that he was self-represented), I waived the requirement in Rule 8.08(4) and listed Michael’s objections to jurisdiction for hearing after each party had had an opportunity to file and serve evidence and written submissions.
9 Ultimately, the hearing was held on 27 May 2019, after which I gave a number of further opportunities, to both the DCT and Michael, for further submissions and evidence to be filed and served.
Preliminary issue: nature of application and onus of proof
10 It has been said that “Jurisdiction…is a word of many, too many, meanings”.[2]
[2]Steel Co v Citizens for a Better Environment, 523 U.S. 83, 90 (1998) (quoting United States v Vanness, 85 F.3d 661, 663 n. 2 (CADC 1996) (Justice Scalia)).
11 Typically, the sense in which “jurisdiction” is used, where a conditional appearance has been entered under Rule 8.08, is jurisdiction over the defendant – whether by reason of the defendant being within the jurisdiction at the time of service or by reason of some rule or statute permitting service outside the jurisdiction. If the Court does have jurisdiction over the defendant a secondary point may arise, which is whether the Court should decline to exercise that jurisdiction on the grounds that there is another more appropriate forum for the dispute or that the present forum is clearly inappropriate.
12 This is not the typical case. Michael was served pursuant to an order for substituted service. There is no suggestion that Michael was outside the jurisdiction at the time he was served. Nor is there any suggestion that there is a more appropriate forum for this dispute.
13 Nevertheless, there is precedent for considering broader jurisdictional grounds in an application made under (or perhaps more accurately as adjunct to) Rule 8.08(3). For example, in Garrett v Foster’s Wine Estates Limited,[3] Finn J relied upon a power under the Federal Court Rules analogous to Rule 8.09 to strike out an originating process for lack of standing. In Swee & Yen Tay v Migration Review Tribunal,[4] Jessup J held that a respondent could raise an argument that there was no justiciable controversy or matter within the meaning of paragraph 39B(1A)(c) of the Judiciary Act 1903 (Cth) in an application under Order 9 Rule 7 of the Federal Court Rules. Jessup J explained at [21]:
The authorities establish that O 9 r 7(1) is not confined to cases where there has been service outside the jurisdiction. While O 9 r 7(1)(b), (c) and (d) refer to service of an originating process, (a) does not, and under that subparagraph an originating process may be set aside where the Court does not have jurisdiction to entertain the claim made in it, or where the originating process constitutes an abuse of process: F Sharkey & Co Pty Ltd v Fisher (1980) 50 FLR 130; 33 ALR 173; Cell Tech Communications (at 370). The second respondent’s first ground [that there was no justiciable controversy or matter] raises an issue of jurisdiction and, if made good, engages the power to set aside the originating process.
[3][2007] FCA 253.
[4](2009) 178 FCR 1.
14 Justice Jessup went on to conclude that, in contrast, the second ground (that the applicant did not have a prima facie case on the merits)[5] was not a ground for setting aside the Writ under Rule 9.07 as it was not jurisdictional in nature.
[5]Unless service took place outside the jurisdiction, in which case a prima facie case on the merits (for example in relation to a tort committed within the jurisdiction) may be necessary to found jurisdiction - Swee & Yen Tay v Migration Review Tribunal (2009) 178 FCR 1 at [24].
15 Bearing in mind the above, I have treated grounds as jurisdictional where they go to the standing of the DCT; the capacity of Michael to be sued in his name; the jurisdiction of this Court to decide the dispute; and my jurisdiction as a Judicial Registrar to determine Michael’s application. Grounds which go to the merits of the dispute are not jurisdictional and are matters for another day.
16 A foundational point for the entirety of Michael’s submissions was that “the burden of proving jurisdiction rests upon the party asserting it”[6] and that “Once jurisdiction has been challenged, it must be proven”.[7] He argued from this that, as he had challenged “jurisdiction”, the DCT was required to prove, by admissible evidence, “jurisdiction” sourced back to the Constitution. In essence, he submitted that I ought to strike out the proceeding unless the DCT could establish “jurisdiction” by admissible evidence specifically proving not just that the DCT was appointed by the (purported) Commissioner, but that the (purported) Commissioner was validly appointed by a validly appointed Governor-General under a validly enacted legislative provision, which had been validly assented to by a validly appointed Governor General. He also asserted that a similar onus lay upon this Court to produce evidence that it (and myself, as a Judicial Registrar) had jurisdiction, sourced back to the Commonwealth Constitution, to determine the dispute.
[6]Bindell v City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991).
[7]Hagens v Lavine, 415 U.S. 528 (1974).
17 In its submissions on this issue, the DCT accepted that where existence of jurisdiction depended on the existence of a jurisdictional fact,[8] the DCT bore the onus of establishing that fact on the balance of probabilities, although he also submitted that there is “some support for the notion” that the defendant bears the onus of proving absence of jurisdiction when relying upon the conditional appearance procedure.[9] However, the DCT contended that the only “jurisdictional fact” which arose was whether the plaintiff was a Deputy Commissioner of Taxation. Everything else, the DCT submitted, was a question of law in relation to which no issue of the burden of proof arose.
[8]I am, here, using the DCT’s terminology not my own.
[9]See The Alambie Wine Co Pty Ltd v Austflavour Pty Ltd (Hedigan J, unreported, 1 November 1993); Tallerman and Co. Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 at 107-8; Flaherty v Grigis (1987) 162 CLR 574.
18 I accept that there is a distinction between facts which go to jurisdiction, which may be proven by evidence, and questions of law (e.g. interpretation of statutes or the Constitution), which do not require evidence[10] and are not conducive to analysis on the basis of “burden of proof”. However, I am not sure that this distinction is sufficient to answer the logic of Michael’s submission that, as a matter of fact, the plaintiff could only be a Deputy Commissioner of Taxation if validly appointed by a Commissioner who was validly appointed by a validly appointed Governor-General under a validly enacted legislative provision, which had been validly assented to[11] by a validly appointed Governor-General.
[10]Although at times extrinsic evidence may be admissible to aid interpretation.
[11]On the question of enactment and assent, the DCT relied upon Legislation Act 2003 (Cth), s15ZB.
19 On the other hand, the justice system would grind to a halt if in each and every case, in which jurisdiction was challenged, such exhaustive proofs were required.
20 The better answer to Michael’s submission is found in the presumption of regularity. There are both common law and statutory presumptions of regularity. Express statutory presumptions of regularity, which may be applicable in the present case, include s255-50(1) of Schedule 1 of the Taxation Administration Act1953 (Cth) (“the Act”) to the effect that in a proceeding to recover a tax-related liability, a statement in the plaintiff’s claim is prima facie evidence of that matter; s15ZB of the Legislation Act2003 (Cth) and s143 of the Evidence Act 2008 (Vic) in relation to judicial notice being taken of acts and regulatory instruments; and reg 24 of the Taxation Administration Regulations 2017 (Cth) in relation to documents appearing to have been signed by the Commissioner, a Second Commissioner or a Deputy Commissioner.[12]
[12]There are also “conclusive evidence” provisions in the Act which may be relevant, such as Item 1 in s350-10(1) of Schedule 1 to the Act. Although the specific provisions relevant in this case arguably do not “impair the curial function” or “reduce the judicial function of fact finding to the merest formality” within the meaning of DCT v Buzadzic [2019] VSC 141 at [38]-[39]. Nevertheless, in view of that decision and the lack of argument on its effect, I have not relied upon any of the conclusive evidence provisions in the course of these reasons.
21 The common law presumption of regularity was explained by McHugh JA in Minister for Natural Resources v New South Wales Aboriginal Land Council:[13]
[13](1987) 9 NSWLR 154 at 164.
In my opinion, this was a classic case for the application of the maxim whose rationale was explained by Lord Simonds in Morris v Kanssen [1946] AC 459, a company case, where his Lordship said (at 475):
“…one of the fundamental maxims of the law is the maxim ‘omnia praesumuntur rite esse acta’. It has many applications … The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order.”
The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office: M'Gahey v Alston (1836) 2 M & W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318-319. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.
The maxim was applied in a statutory context in this Court in Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 where objection was taken to the validity of the imposition of “parking area rates” on the ground that the resolutions, which imposed the rates, did not recite that in the opinion of the Council certain works or services would be of special benefit to the areas rated. The formation of such an opinion was a pre-requisite to the valid exercise of the power to make the rate under the Local Government Act 1919, s 121. Moffitt JA, giving the judgment of the Court, applied the maxim. His Honour said (at 46-47):
“…as the case is one where the opinion required by s 121(1) was open to be held, it is to be presumed, in default of reason to conclude to the contrary, that the rate was regularly made and therefore was made upon the prerequisite opinion having been formed … In applying the presumption I do not think that any distinction should be drawn between the exercise of a power by an individual and the exercise of such power by a body or group which acts by way of resolution, or vote.”
A particular application of the maxim which is relevant to this case is stated in Broom's Legal Maxims, 10th ed (1939) at 642 as follows:
“…where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium - everything is presumed to be rightly and duly performed until the contrary is shown.”
22 The presumption of regularity is particularly apt in the present case. To paraphrase the dicta of Lord Simmonds extracted above, the wheels of justice will not go smoothly if a litigant, in any case, may by objecting to jurisdiction require specific documentary proof of every step in the jurisdictional chain back to the Constitution, even when no evidence is tendered to suggest that any such step is invalid.
23 Finally, I note for completeness that an alternative basis for Michael’s application would be that it is an application to stay the proceeding under Rule 23.01 on the grounds that it is scandalous, frivolous or vexatious or an abuse of process of the Court. This would accord with the language used by Michael in the Proposed Court Order he submitted to the Court. If it were such an application, the onus of proof would clearly lie upon Michael. A Court ought not grant such an order under Rule 23.01 unless it is satisfied:[14]
“…that by no proper amendment of the pleading can the plaintiff raise a good cause of action because the claim so completely lacks foundation in fact or law that no legitimate pleading amendment could save it. On an application under r 23.01 of the Rules, any party may rely upon evidence given on affidavit or, by leave, orally…The court will not make an order under this rule unless it is clear on the pleadings or from extrinsic evidence that the claim is unsustainable in fact or in law. The burden on this question lies on the party impeaching the claim.”
[14]Annesley v Westpac [2016] VSC 323 at [68]-[69], per Derham AsJ.
24 Bearing in mind these preliminary matters, I turn to consider each ground relied upon by Michael in support of his application.
1)That the purported Deputy Commissioner of Taxation is a non-entity
25 It was not in dispute before me that the plaintiff, described in the Writ and Statement of Claim as the “Deputy Commissioner of Taxation”, was a Mr Robert Ravenello.[15]
[15]I was informed by the DCT just prior to the delivery of my reasons that Mr Ravenello had recently resigned. In ordinary debt cases, a change in the identity of the plaintiff would require an application for an Order substituting one plaintiff for another. However, in this case, the substitution would not require any change in the description of the plaintiff. In any event, no such application has yet been made and I leave the appropriate procedure for another day.
26 Deputy Commissioner is defined in s1 of the Act as follows:
“Deputy Commissioner" means any Deputy Commissioner of Taxation.
27 Section 7 of the Act states that:
“There shall be such Deputy Commissioners of Taxation as are required”.
28 The DCT relies upon an affidavit of an employee “in the debt section of the Australian Taxation Office”, in which the employee states that she knows Robert Ravanello to be a Deputy Commissioner of Taxation. She does not set out expressly the grounds for that belief, although she goes on to exhibit (among other things) a document dated 12 December 2011 and purported to be signed by the Commissioner of Taxation. That documents states:
ASSIGNMENT OF DUTIES OF DEPUTY COMMISSIONER OF TAXATION, CHIEF OPERATING OFFICER, OPERATIONS
I, Michael D’Ascenzo, Commissioner of Taxation, having the powers of an Agtency Head for the purposes of the Public Service Act 1999 and pursuant to section 25 of that Act, do hereby assign Robert Ravanello, Senior Executive Band 2, the duties of Deputy Commissioner Chief Operating Officer, Senior Executive Band 2, Operations Sub Plan, Position Number 1049387, Australian Taxation Office with effect from 30 January 2012.
29 I am not certain that it is technically correct to describe an appointment as Deputy Commissioner of Taxation for the purposes of the Act as an “assignment of duties” under s 25 of the Public Service Act 1999 (Cth). That section seems to me to be more apt for the assignment of specific duties to a particular APS employee, rather than the appointment of a person to a statutory role. However, the reasonable interpretation of the meaning of the words of this document, in the statutory context, is that the Commissioner intended to appoint Robert Ravanello as a Deputy Commissioner of Taxation.
30 The DCT can also rely upon statutory and common law presumptions to establish that Robert Ravanello is a Deputy Commissioner of Taxation. Under s 255-50 of Schedule 1 of the Act, the claim made in the statement of claim that the plaintiff is a Deputy Commissioner of Taxation is prima facie evidence of that fact.[16] Further, under the common law presumption of regularity, given Robert Ravanello is acting in the public office of Deputy Commissioner of Taxation, he is presumed to have been validly appointed unless that presumption is rebutted by admissible evidence.
[16]Section 255-50 of Schedule 1 to the Act.
31 Michael relied upon a copy of a letter dated 30 January 2019 and sent to a Mr Darren Dickson, on Attorney-General Department letterhead, in relation to an FOI request. That letter appears to respond to an FOI request by Mr Dickson for:
the head of power to create the corporations known as the Commissioner and Deputy Commissioner for taxation
the head of power to create tax payer corporations from tax file number applications
the head of power to create an entity known as the “Australian Crown or Crown of Australia
by stating that “the department does not hold any documents within the scope of your request”.
32 Whether a particular “head of power” (presumably intended to refer to a constitutional head of power) exists is a question of law not fact. It is not capable of being proven or disproven by such a letter sent in response to an FOI request well after the relevant appointment of the DCT. This letter has no probative value to any issue in dispute in this proceeding.
33 Further, neither party has pointed to any formal requirements for the appointment of a Deputy Commissioner of Taxation. It does not appear that any formal legislative requirements exist. This may be contrasted to a delegation of the powers of a Commissioner under s 8 of the Act, which must be in writing signed by the Commissioner.
34 Michael placed a great deal of emphasis in his submissions on the fact that the ATO was a “non-entity”. However, the plaintiff in this proceeding is not the ATO but Robert Ravanello, in his capacity as DCT. The question of whether or not the ATO is an “entity” or person has no relevance to the capacity of Mr Ravanello.[17]
[17]See further Daniels v DCT [2007] SASC 114 at [42]; Dooney v Henry (2000) 174 ALR 41 at [6]-[7]; DCT v Levick (1999) 168 ALR 383 at 392 at [22].
35 I have carefully considered the detailed submissions and evidence presented by Michael on this application. In my view, there is no admissible evidence before me to suggest that Robert Ravanello is not a Deputy Commissioner of Taxation (nor, for the sake of completeness, that any of the steps in the chain from Deputy Commissioner back to Commissioner and ultimately back to the Constitution were invalid).
36 In the circumstances, I am satisfied on the balance of probabilities that Robert Ravanello was a Deputy Commissioner of Taxation at the time these proceedings were commenced.
2)That the purported Deputy Commissioner of Taxation has no authority to sue the Defendant
37 The plaintiff in this proceeding is named as “Deputy Commissioner of Taxation”. This is a departure from the ordinary requirement that a party to a proceeding be named.[18] It also differs from a standard common law debt claim brought by a creditor, because the Deputy Commissioner of Taxation is not the creditor - the alleged debt is owed to the Commonwealth and payable to the Commissioner.[19]
[18]Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875.
38 The DCT relies upon s 255-5 of Schedule 1 to the Act in establishing his standing to bring this proceeding in this manner. Section 255-5 provides as follows:
255-5 Recovering a tax-related liability that is due and payable
(1) An amount of a * tax-related liability that is due and payable:
(a) is a debt due to the Commonwealth; and
(b) is payable to the Commissioner.
(2) The Commissioner, a * Second Commissioner or a * Deputy Commissioner may sue in his or her official name in a court of competent jurisdiction to recover an amount of a * tax-related liability that remains unpaid after it has become due and payable.
39 This provision suffices to authorise the plaintiff to be described as Deputy Commissioner of Taxation (his official name) and to sue to recover the tax-related liability alleged to be owed by Michael to the Commonwealth.
40 Michael submitted that a delegated authority could not be delegated and that as the power to collect revenue had already been delegated to the Commissioner of Taxation, it could not be further delegated to the DCT. However, the DCT in this proceeding does not rely upon a delegation but an express statutory power to bring these proceedings under s 255-5 of Schedule 1 of the Act.
41 Michael also submitted that the DCT had no power to claim “Failure to lodge penalties”, “Administrative Penalties” and “General Interest Charges” as s 55 of the Constitution states that “Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect”.
42 The statutes which the DCT relies upon in relation to these penalties and charges are the Act, the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth). These three Acts are laws with respect to taxation (and so within the head of power in sub-section 51(ii) of the Constitution) but not laws imposing taxation (which would be governed by s 55 of the Constitution).[20] They do not breach s 55 of the Constitution.
[20]See for example Moore v Commonwealth (1951) 82 CLR 547 at 576; Re Dymond (1959) 101 CLR 11; FCT v Munro (1926) 38 CLR 153.
43 Other questions as to whether Michael in fact owes a tax-related liability and if so, the amount of that liability (including with respect to interest or penalties), and when it was due, go to the merits of the dispute and are not jurisdictional in nature and so will not be addressed further here.
3)That the “Michael Gareth Palmer” referred to in the Writ and Statement of Claim must be a corporation or artificial entity, which is not the person who made submissions today in Court, known as Michael Gareth Palmer
44 Michael accepted that he was a “living breathing man” and, although he preferred to be called Michael or “Michael of the family Palmer” in Court, referred to himself on many occasions in his written submissions as “Michael Palmer”.
45 As I understand this aspect of his submissions, he contended that:
a) he was not a “person” within the meaning of the relevant legislation; and
b) the DCT was not suing him, but a “corporation” created either by the issuing of a birth certificate or by the creation of a tax file number.
46 It is well accepted that “person” includes “natural person” or (to use Michael’s terminology) a “living breathing man”.[21] On the face of the Writ and Statement of Claim, the DCT appears to be suing a natural person by the name of Michael Gareth Palmer rather than a corporation.
[21]Pharmaceutical Society v London and Provincial Supply Association Ltd(1880) 5 AC 857 at 861; Bennett-Hullin v Clark (TP) & Co [1944] VLR 45 at 46.
47 Further, Michael also swore an affidavit dated 17 May 2019 which commenced:
“I, Michael Palmer, a subject of the Crown of the United Kingdom of Great Britain and Ireland, a de jure solemn et natural, living, breathing man, make oath and say as follows:
I am listed as the Defendant in these proceedings…”
48 On the evidence before me, I am satisfied that Michael is the named defendant to these proceedings.
4)That the DCT cannot collect money on behalf of a purported Australian government authority (the Australian Taxation Office) but only on behalf of the Commonwealth
49 As discussed above under Ground 2, the DCT sues pursuant to s 255-5(2) of Schedule 1 to the Act in relation to a tax-related liability that is due and payable to the Commonwealth, not the “ATO”.
5)That the amount sought by the DCT was fraudulent and incorrect
50 This is not a jurisdictional point. It will be a matter for trial, assuming Michael files and serves a defence which properly pleads and particularises any such allegation.
51 During the course of oral submissions, Michael also suggested that he could not have made a profit because he had only earnt “worthless fiat currency”. This point is not jurisdictional in nature. To the extent that this may have been an attempt to re-agitate an argument previously made and rejected in Permanent Custodians Ltd v Virgin Investments Pty Ltd [2009] VSC 429, I agree with Forrest J that “it does not warrant any further attention”.[22]
6)That as a claim for breach of statute this proceeding was a criminal proceeding in nature, and ought to be brought in the name of the Queen
[22]Permanent Custodians Ltd v Virgin Investments Pty Ltd & Palmer [2009] VSC 429 at [51] (Forrest J).
52 The mere fact that a claim relies upon a debt which arises as a result of a statute does not make this proceeding criminal in nature. On its face it is a claim for a debt. As previously noted, s 255-5 of Schedule 1 of the Act authorises this proceeding to be brought in the name of the DCT.
53 Michael also submitted that the fact that this proceeding was commenced in the Commercial Division, which is part of the “civil” jurisdiction of the Court meant that the Court was purporting to exercise civil law in the Roman sense. The word “civil” has many meanings. In relation to the civil jurisdiction of the Court it is used in contradistinction to the Court’s criminal jurisdiction,[23] not the civil law which is sourced from Roman law.
7)That the Defendant required trial by jury
[23]See, for example, the definition of “civil proceeding” in Civil Procedure Act 2010 (Vic) s 3.
54 The Defendant may apply for a trial by jury pursuant to Order 47 of the Rules by email to the Commercial Registry ([email protected]), copied to all parties. This is not a jurisdictional point.
8)That the County Court, or I, as a Judicial Registrar, lacked jurisdiction to do anything other than strike the proceeding out.
55 It was submitted by Michael that:
a) this Court did not have jurisdiction to determine the dispute; and
b) unless I provided evidence of the validity of my appointment, I lacked jurisdiction to do anything other than strike the proceeding out.
Jurisdiction of the Court
56 The dispute, which is the subject matter of this proceeding, is within the High Court’s original jurisdiction as a matter “in which the Commonwealth or a person suing…on behalf of the Commonwealth…is a party” (sub-section 75(iii) of the Constitution) and is also a matter “arising under” a law made by the Commonwealth Parliament (sub-section 76(ii) of the Constitution).
57 Sub-section 77(iii) empowers the Parliament to invest any court of a State with federal jurisdiction with respect to matters mentioned in s 75 or s 76 of the Constitution.
58 Sub-section 39(2) of the Judiciary Act 1903 (Cth) provides that:
“The several Courts of the State shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred on it.”
59 The County Court is one of the several Courts of the State of Victoria. There is no pecuniary limit on its jurisdiction in relation to civil disputes.[24] Accordingly it is invested with jurisdiction with respect to the “matter” the subject of this proceeding by s39(2) of the Judiciary Act 1903.
[24]Paragraph 37(1)(a) of the County CourtAct1958 (Vic).
Jurisdiction of Judicial Registrar
60 The position of Judicial Registrar is created by the County Court Act1958 (Vic). Sub-section 17O (1) provides that:
On the recommendation of the Attorney-General under section 17N, the Governor in Council may appoint a person as a judicial registrar of the court for the period, not exceeding 5 years, specified in his or her instrument of appointment.
61 Section 71PA states that:
(1)A judicial registrar must take an oath or affirmation of office in the prescribed form and manner.
(2)Subsection (1) only applies to a person who is appointed or re-appointed as a judicial registrar on or after the commencement of section 88 of the Courts Legislation Miscellaneous Amendments Act 2014.
(3)A failure by a person to take an oath or affirmation of office in accordance with this section does not invalidate anything done by that person as a judicial registrar.
62 Sub-section 4(1C) of the Act states:
(1C)Without limiting subsection (1B), the court may be constituted by a judicial registrar in the case of a proceeding for which provision is made by Rules for—
(a) the court to be so constituted; and
(b)the delegation to judicial registrars of powers of the court to hear and determine such a matter or proceeding.
63 Order 84 of the Rules provides that:
(1) Subject to paragraph (2), a judicial registrar may perform the duties and exercise all or any powers or authorities of the Court in all matters and proceedings including, but not limited to, the following— (a) administrative mentions; (b) directions hearings including any application by summons or otherwise pursuant to these Rules, including— (i) the assessment of damages; and (ii) the taking of an account or the making of an inquiry; (c) the conduct of a mediation under Rule 50.07.1; (d) the conduct of judicial resolution conferences; (e) the conduct of the trial of a proceeding, if a Judge has by order referred or transferred the conduct of the trial to a judicial registrar.
64 Michael repeatedly asserted during the course of his submissions that I (or the Court) was required to “prove” or “establish” jurisdiction by, for example, producing evidence of my appointment (by a validly appointed Governor-General pursuant to validly enacted legislation etc); or that I had sworn an oath to the “Queen of the United Kingdom”.
65 It is neither the role of the Court nor my role specifically to tender evidence to prove jurisdiction. Evidence is tendered by the parties, not the Court.
66 In response to a request from Michael at the hearing on 27 May 2019, my Associate did forward to the parties a copy of an Order in Council dated 24 April 2018 recording my appointment under sub-s17O(1) of the County Court Act 1958 (Vic) which was obtained from the records of the Court. However, as Michael rightly points out, this document has not been tendered in evidence by either party.
67 In the absence of any evidence that I have been invalidly appointed, the presumption of regularity in relation to my appointment has not been rebutted. I am satisfied that I have jurisdiction to hear and determine Michael’s application.
Conclusion
68 Michael has, it seems, not paid tax for over 9 years. He has provided extensive written and oral submissions to the Court arguing that notwithstanding this, the DCT has no power to sue him for unpaid tax and that this Court has no power to determine the DCT’s claims. In the course of those submissions he has relied upon, among other things, a number of cases relating to constitutional principles applicable in the United States of America. In the end, I have determined that none of his jurisdictional objections can be sustained.
69 I conclude these reasons with a quotation of my own from Benjamin Franklin, a contributor to the drafting of the American constitution and one of America’s Founding Fathers: [25]
[25]Benjamin Franklin, in a letter to Jean-Baptiste Leroy, 1789.
“Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.”
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Certificate
I certify that these 19 pages are a true copy of the reasons for ruling of Judicial Registrar Tran, delivered on 3 September 2019.
Dated: 3 September 2019
Susan Thomas
Associate to Judicial Registrar Tran
See s255-1 of Schedule 1 to the Act: “A tax-related liability is a pecuniary liability to the Commonwealth arising directly under a taxation law” and sub-s255-5(1) which provides that “An amount of a tax-related liability that is due and payable (a) is a debt due to the Commonwealth; and (b) is payable to the Commissioner”.
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