Deputy Commissioner of Taxation v Palmer (No 2)
[2022] VCC 2001
| 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 GARETH PALMER | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2022 | |
DATE OF JUDGMENT: | 22 November 2022 | |
CASE MAY BE CITED AS: | Deputy Commissioner of Taxation v Palmer (No 2) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2001 | |
REASONS FOR JUDGMENT
---
Subject:APPLICATION FOR JUDICIAL REVIEW OF JUDICIAL REGISTRAR’S DECISION; TRIAL OF ACTION; CLAIM FOR UNPAID TAX AND PENALTIES
Catchwords: Proceedings by Deputy Commissioner of Taxation to recover tax-related liabilities – whether legislation of Commonwealth Parliament after Royal Style and Titles Act 1973 valid – whether Queen of the United Kingdom and Ireland referred to in the Commonwealth of Australia constitution is the same person as the Queen of Australia referred to in the Royal Style and Titles Act 1973 – whether Deputy Commissioner of Taxation Plaintiff properly described – whether following resignation of original Deputy Commissioner a new Deputy Commissioner may continue to prosecute proceeding – whether solicitors for the plaintiff competent to act – whether defendant exempted from taxation liability by reason of statement over telephone by Taxation Department officer – authority of plaintiff and jurisdiction of court established – production of assessments and certificates by Deputy Commissioner of Taxation establishing the quantum of liability – refusal of judicial registrar summarily to dismiss proceeding affirmed – judgment for the plaintiff
Legislation Cited: Income Tax Assessment Act 1997 (Cth); Taxation Administration Act 1953 (Cth); Statute of Westminster Adoption Act 1942; Colonial Laws Validity Act 1865 (imp); Australia Act 1986; Royal Style and Titles Act 1973 No 114 of 1973; Royal Style and Titles Act 1953 (Cth); Bankruptcy Act 1966 (Cth); County Court Act 1958; Fair Work Act 2009 (Cth); Queensland Rail Transit Authority Act 2013 (Qld); A New Tax System (Australian Business Numbers) Act 1999; A New Tax System (Goods and Services Tax) Act (1999); Income Tax Assessment Act 1936 (Cth); Imperial Acts Application Act 1922; Constitution Act 1975; Legal Profession Practice Act 1928; Legal Profession Practice Act 1958; Legal Profession Uniform Law Application Act 2014; Legal Practice Act 1996;
Cases Cited:Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; Parisienne Basket Shoes v Whyte (1938) 59 CLR 369; Tallack v Tallack [1927] P 211; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Cameron v Cole (1944) 68 CLR 571; Posner v Collector for Inter-state Destitute Persons (Vict) (1946) 74 CLR 461; Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590; Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Piccinin v Deputy Commissioner of Taxation [2002] FCAFC 282; The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited (1920) 28 CLR 129; Joosse v ASIC (1998) 159 ALR 260; [1998] HCA 77; Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171; R v Davison (1954) 90 CLR 280; Commonwealth of Australia v The Hospital Contribution Fund of Australia (1982) 150 CLR 49; Kotsis v Kotsis (1970) 122 CLR 69; Knight v Knight (1971) 122 CLR 114; LibertyWorks Inc v Commonwealth of Australia 2021 HCA 18; James v Deputy Commissioner of Taxation (1957) 97 CLR 23; Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; FJ Bloenen Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 360; Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; Bell Group NV (in liquidation) v Western Australia [2016] HCA 21; Deputy Commissioner of Taxation v Buzadzic [2019] VSCA 221; Deputy Commissioner of Taxation v Lewer [2001] VSC 114; Deputy Commissioner of Taxation v Hua Wang Bank Berhad (No 2) [2010] FCA 1296
Judgment: There be judgment for the plaintiff in the sum $2,241,339.76. Costs reserved.
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Ms A Wilson with Mr V Tavolaro | Australian Government Solicitor |
| For the Defendant | Self-represented |
HIS HONOUR:
Background
1By a writ dated 19 June 2018, the plaintiff described as “Deputy Commissioner of Taxation” sought judgment for debts said to be outstanding under various Commonwealth tax enactments in the sum of $1,587,646.19, said to be the amount payable as at 19 June 2018, together with further interest accruing thereafter under the terms of the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953 of the Commonwealth. The Statement of Claim was subscribed with a facsimile signature apparently of “Robert John Ravanello … a Deputy Commissioner of Taxation of the Commonwealth of Australia”. (Court Book (“CB”) 710, paragraph 2)
2The Statement of Claim sought recovery of an amount the subject of assessments of tax, said to have been made on 26 February 2018, for income tax for each financial year ending 30 June 2008 until the financial year ending 30 June 2018. Interest was sought accruing as at a series of dates, the first of which for the year ending 30 June 2008, being 5 June 2009, and for all subsequent years, in the November next succeeding the end of such financial year. These assessments were apparently default assessments, viz made by the Commissioner based upon his own judgment and investigations and without the advantage of, or reference to, income tax returns lodged by or on behalf of Mr Palmer. There were also claims for certain administrative penalties.
3Mr Palmer filed a document styled “Conditional Defence of Defendant” dated 23 October 2019. This document gave Mr Palmer’s email address as “[email protected]”. It described Mr Palmer as being “a de jure solemn et naturale” and as being “a subject of the Crown United Kingdom of Great Britain and Ireland (pursuant to s117 of the Commonwealth Constitution) and that Crown is defined as ‘a body of law’ that has been established through proper due process …”. It also described Mr Palmer as a “living, breathing man,” stating that he was acting “for and on behalf of the Defendant as the Person’s Personal Representative of person Michael Gareth Palmer, and as the beneficiary of that constructive trust …”. According to the “Conditional Defence”, Mr Ravanello, the plaintiff, was not “a lawfully appointed Deputy Commissioner of Taxation – at best he is a Second Commissioner of Taxation who has purportedly been ‘assigned’ the duties of a Deputy Commissioner of Taxation – and does not, in fact, have the right to enforce the taxation laws within the Commonwealth of Australia.” The defence proceeded to deny the lawfulness of the assessments of taxation made against Mr Palmer, alleging that Mr Ravanello “unlawfully accessed private foundation accounts … of which the Defendant was merely a participant (not the sole beneficiary of) without a lawful warrant …” The defence said that the Taxation Administration Act, as referred to in the Statement of Claim, “has not been lawfully amended and there exists no valid proclamation certificate for the sections referred to in the Statement of Claim.” The defence denied at length the various allegations in the Statement of Claim. Mr Palmer also denies the jurisdiction of this Court to entertain the plaintiff’s claim. Hence, the “conditional” nature of his defence. The document concluded:
“The Defendant requires the matter to be struck out, with prejudice, on the grounds that it is frivolous, vexatious and an abuse of process, and the proceeding is, in its entirety, a legal nonsense.
The Defendant claims costs and damages.”
4An application for summary dismissal or strike-out in terms of this assertion came on for hearing before Judicial Registrar Tran, as her Honour then was, on 27 May 2019. She published a reserved written ruling dated 3 September 2019, [2019] VCC 1401, in which she considered an assertion inter alia that she had not been validly appointed as a judicial registrar.
5For reasons not entirely apparent, though perhaps associated with the COVID‑19 pandemic and shutdown and the complexity of the matters being urged by Mr Palmer, matters rested there until the proceeding came on for hearing before me on 14 November 2022 for the purposes of trial and also to deal with an application on the part of Mr Palmer for the same relief, which he had unsuccessfully sought from the judicial registrar.
6These two matters were fixed for hearing on 14 November by order of Judicial Registrar Muller made 3 November 2022. Four days were set aside for the trial.
7At the outset, Mr Palmer, reiterating the assertion relative to his identity and proper mode of address, which I have quoted from the Conditional Defence (which I confess I cannot follow), asked to be addressed as “Michael”. He denied that he had been validly impleaded and therefore objected to being designated as “the defendant”. I did not follow the logic of his objection to being addressed as Mr Palmer. In the circumstances, I determined to address him as “Sir”, and in discussions with the plaintiff’s counsel, Ms Wilson, to refer to him as “your opponent”.
8Mr Palmer began by raising matters which he said constituted a challenge to jurisdiction, calling upon me in effect to establish that I had jurisdiction, and also to determine his review application prior to dealing with the plaintiff’s claims at trial. It seems that, broadly, the same complex issues were raised in support of the review application and to controvert the plaintiff’s claim at trial. Mr Palmer said logically I should deal with the review application first in light of the history of the matter and the fact that the same consideration raised by Mr Palmer seemed to be relied upon. On the review application and at trial, it seemed to me convenient that Mr Palmer advance all of his arguments and evidence at the outset, leaving it to plaintiff’s counsel, Ms Wilson, to respond but giving Mr Palmer a right of reply.
Defendant’s contentions
9I will turn first therefore to the various matters urged by Mr Palmer, challenging the court’s jurisdiction and seeking to controvert the plaintiff’s claim.
Jurisdiction
10According to Mr Palmer, it was incumbent on every judicial officer to satisfy himself or herself that he or she has jurisdiction to deal with the matter presented. He referred to a decision of the High Court in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398. Next, he referred to the High Court’s decision in Parisienne Basket Shoes v Whyte (1938) 59 CLR 369 for the proposition that where there was a disregard or failure to observe the conditions of jurisdiction, the matter was “coram non judice”; that is, as if there were no judge and the proceeding constitute a nullity.
11Mr Palmer then referred to an array of decisions, many of them from United States courts, to the effect that a determination made without a jurisdiction was of no effect. He also referred to an article in the “Sydney Law Review”, “Submission to the Jurisdiction of a Foreign Court” referring to a then unreported decision of the Supreme Court of New South Wales, given at first instance by Kinsella J and in the Full Court by Street CJ, Owen and Walsh JJ, and in 1957 in Re A Lund & Co (Bilden Textiles) Ltd, A Lund & Co (Bilden Textiles) Ltd v Wembley Wear Pty Ltd, where the learned author of the notes stated:
“One of the broad rules of English and New South Wales private international law is that a court has jurisdiction in an action in personam if the defendant has been served within its jurisdiction or if he has submitted to the jurisdiction. Conversely, we (in England and in New South Wales) recognise that a foreign court has jurisdiction in the international sense if the defendant was served within its jurisdiction or submitted to it: no distinction being drawn between what constitutes a submission to our own court’s jurisdiction (apart from any special domestic legislation) and what constitutes a submission to a foreign court’s jurisdiction. The problem thus arises as to what constitutes a submission.”
12The photocopy extract which Mr Palmer handed up does not disclose the volume number of the Review in which the note or article appears, save to say that the extract begins at p580 and ends at p589. The article refers to a decision of Tallack v Tallack [1927] P 211. Mr Palmer’s authorities also included another decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, where Mr Palmer quoted the court at [51] as stating that an administrative decision involving jurisdictional error “is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.”
13It is doubtless correct that a court or other decision-making body should satisfy itself that it has jurisdiction before embarking upon the process of adjudication. Beyond that, Mr Palmer’s contentions conflate some three different situations:
(a) the situation as to domestic jurisdiction of a superior court of record as, for instance, the Supreme Court of Victoria or the Federal Court of Australia;
(b) the situation as to jurisdiction in a domestic court other than a superior court of record as, for instance, in the case of this Court; and
(c) the issue as to jurisdiction in private international law or “conflict of laws”, as it is sometimes described.
14As to superior courts of record, orders made even without jurisdiction remain valid and effective unless and until set aside on appeal. In Cameron v Cole (1944) 68 CLR 571, 590, Rich J said “It is settled by the highest authority that the decision of the superior court, even if in excess of jurisdiction, is at the worst voidable and is valid unless and until it is set aside”; to similar effect, Posner v Collector for Inter-state Destitute Persons (Vict) (1946) 74 CLR 461, 489. These statements of principle were approved by Stephen, Murphy and Wilson JJ in Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590, 602. Secondly, relative to matters of international jurisdiction in proceedings in personam, a court may acquire jurisdiction where a foreign resident voluntarily submits to the jurisdiction. Thirdly, in the case of courts other than superior courts of record, including this court, an administrative body, a step taken or an order made without jurisdiction is a decision that “lacks legal foundation” and is no decision at all in accordance with the passage quoted from Bhardwaj’s case by Mr Palmer. In Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, a judge of the District Court of New South Wales, after the plaintiff had recovered a judgment for a liquidated sum against two defendants, made an order restraining them from selling or otherwise disposing of or encumbering or further encumbering or dealing with their interests in a house property until further order or until payment of the amount of the judgment. The High Court held that the District Court did not have jurisdiction to make that order. Consequently, there was no power to punish one of the defendants for breaching the order, even although it had not been set aside on appeal when it was breached.
15Leaving to one side the international conflict of laws issues referred to in the article or note in the Sydney Law Review, a court cannot acquire jurisdiction by estoppel or agreement between parties. The jurisdiction either exists or it does not. Accordingly, the “conditional” nature of Mr Palmer’s defence and the attempt which he made to maintain the appearance which he filed as being conditional only were unnecessary. If this court lacks jurisdiction, its lack of jurisdiction would not be made good by any step which Mr Palmer might take or refrain from taking in the proceeding, or any admission which he might make or decline to make.
16According to Mr Palmer, there are a number of reasons why this Court did not have jurisdiction to entertain the claim brought against him. At the outset, after my tipstaff had given the proclamation opening to the court, he asked “is this Court operating under the King of Australia?” I replied in accordance with the proclamation that had just been given that it was. (T4, L16-20) Mr Palmer then said “so, where’s the instrument for the valid creation of His Majesty, the King of Australia, given that covering clause 5 of the Commonwealth Constitution binds all courts, judges and people of every State to the heir and successor of the sovereignty of the United Kingdom, not Australia, …”. (Ibid, L21-26)
17He referred to a decision of the Full Court of the Federal Court of Australia in Piccinin v Deputy Commissioner of Taxation [2002] FCAFC 282, where the court Black CJ, Wilcox and Moore JJ rejected a contention that the Local Court and the Supreme Court of Western Australia were courts of a foreign power, namely the United Kingdom of Great Britain and Northern Ireland. [21] Their Honours said [28]:
“The authority by which judicial appointments in Western Australia are made is that of the Queen of Australia, who is relevantly a different constitutional entity to the Queen of the United Kingdom of Great Britain and Northern Ireland: see Australia Act 1986 (Cth), ss 7 and 10; Constitution, s 107.”
18A corrigendum to the court’s judgment indicates that the reference to the Commonwealth Constitution should be to s106 not s107.
19According to traditional constitutional analysis in the British Empire and later the Commonwealth of Nations, the statement made by their Honours would appear to be heterodox. In the famous case of The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited (1920) 28 CLR 129, the High Court considered the extent to which agencies of the states could be subjected to the jurisdiction of the Commonwealth Court of Conciliation and Arbitration, earlier authorities of the court having recognised the states as possessing intergovernmental immunity from interventions of Commonwealth law. The court rejected the existence of such immunities in the states and their agencies in what was regarded as a “new start” in Australian constitutional law.
20Referring to the doctrine of immunity of the states, the joint judgment given on behalf of Knox CJ, Isaacs, Rich and Starke JJ noted that the Commonwealth Constitution recited a determination of the Australian colonies (now states):
“… ‘to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.’ ‘The Crown,’ as that recital recognizes, is one and indivisible throughout the Empire. Elementary as that statement appears, it is essential to recall it, because its truth and its force have been over looked, not merely during the argument of this case, but also on previous occasions. Distinctions have been relied on between the ‘Imperial King,’ the ‘Commonwealth King’ and the ‘State King.’ It has been said that the Commonwealth King has no power to bind the first and the last, and, reciprocally, the last cannot bind either of the others. The first step in the examination of the Constitution is to emphasize the primary legal axiom that the Crown is ubiquitous and indivisible in the King’s dominions. Though the Crown is one and indivisible throughout the Empire, its legislative, executive and judicial power is exercisable by different agents in different localities, or in respect of different purposes in the same locality, in accordance with the common law, or the statute law there binding the Crown.” (1920) 28 CLR 129, 152
21If the Crown be one and indivisible and ubiquitous throughout the Empire, what has changed since the Engineers’ case? Has anything changed?
22There has been no amendment to the Commonwealth Constitution on these matters. There have, however, been enactments of the Imperial Parliament which have been adopted by the Commonwealth Parliament.
23In 1931, the Imperial Parliament adopted what is known as the “Statute of Westminster 1931”. The text of that Statute is a schedule to a Commonwealth Statute known as the “Statute of Westminster Adoption Act 1942”. The Statute of Westminster is described as “an Act to give effect to certain resolutions passed by Imperial conferences held in the years 1926 and 1930”.
24Amongst the matters resolved at those conferences was that “it would be in accord with the established constitutional position of all members of the Commonwealth [viz the British Commonwealth of Nations] in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Title shall hereafter require the assent as well of the Parliaments of all the dominions as of the Parliament of the United Kingdom.”
25Most notably, the Statute of Westminster provided that the Colonial Laws Validity Act 1865 should not apply to enactments by dominion Parliament and no law made by the Parliament of a dominion should be void and inoperative on the ground that it was “repugnant to the law of England, or the provisions of any existing or future act of the Parliament of United Kingdom …”. (s2)
26Certain provisions were expressed not to apply to Australia. In 1942, the Commonwealth Parliament enacted the Statute of Westminster Adoption Act to adopt the provisions of the Statute of Westminster with effect from the outbreak of World War II [viz 3 September 1939].
27The next enactment, both by the Imperial Parliament and by the Commonwealth Parliament was the Australia Act 1986, which is referred to by their Honours in Piccinin’s case. The provisions referred to by their Honours was s7, whose chapeau is “powers and functions of Her Majesty and Governors in respects of states”, providing that the representative in each state should by the Governor and that the Queen’s powers and functions within the state should be exercised in accordance with the advice of the Premier of that state.
28Section 10 provided:
“After the commencement of this Act Her Majesty’s Government in the United Kingdom shall have no further responsibility for the government of any state.”
29Until the enactment of this provision, the monarch acted upon the advice of the United Kingdom Ministers in appointing Governors of Australian States.
30It is difficult to see how the enactments just surveyed and, in particular, those referenced by their Honours in Piccinin’s case, revised the situation stated by the High Court in the Engineers’ case. A regime whereby a State Governor acts upon the advice tendered to him or her by the State’s Premier is in no way inconsistent with the “one and indivisible Crown” referred to in the quoted passage from the joint judgment in the Engineers’ case.
31Mr Palmer’s contention was that what represented the constitutional break in the continuity and precluded those courts, officials and others purporting to derive their authority from the Commonwealth Constitution was a Commonwealth enactment entitled “The Royal Style and Titles Act 1973 No 114 of 1973”. He made passing reference also to the Royal Style and Titles Act 1953. The 1953 Act was to be the assent of the Commonwealth Parliament “to the adoption by Her Majesty for use in relation to the Commonwealth of Australia and its territory, in lieu of the Style and Titles at present appertaining to the Crown, of the Style and Titles set out in the schedule”.
32The schedule showed the Style and Titles as being “Elizabeth II by the grace of God of the United Kingdom, Australia and her other realms and territories, Queen Head of the Commonwealth Defender of the Faith”. The Governor-General, Sir William McKell, rather than assenting to the Statute on the Queen’s behalf, endorsed the words “I reserve this Act for Her Majesty’s pleasure”. The print that I have shows Her Majesty’s assent in her handwriting “Elizabeth R”, April 3rd, 1953.
33The 1973 Act was in similar terms with the schedule Style and Titles being “Elizabeth II by the grace of God Queen of Australia and her other realms and territories, Head of the Commonwealth”. The Governor-General, Sir Paul Hasluck, rather than assenting on the Queen’s behalf, reserved the matter for Her Majesty, whose handwritten signature appears on the Statute “Elizabeth R, 19 October 1973”.
34These enactments and the Styles and Titles are consistent with the formulation in the Engineers’ case. Employment of a different title for the sovereign in different parts of her dominions does not destroy the indivisibility of the Crown which is a fundamental constitutional principle.
35The provisions of the Statute of Westminster which have been specifically adopted in Australia reflecting an agreement between the United Kingdom Government and inter alia the Government of the Commonwealth of Australia that the latter is to be consulted on matters of succession to the throne is inconsistent with the thought that the Queen or King of the United Kingdom, and the Queen or King of Australia might be a different person.
36The conclusion of the Full Court of the Federal Court for the purposes of determining the issue under the Commonwealth Bankruptcy Act 1966 arising for its determination in Piccinin’s case that the courts of Western Australia are, as regards the Commonwealth of Australia and the Federal Courts of Australia, “courts of a foreign power”, is plainly right. The Crown, however, remains one and indivisible as it was in 1920.
37Arguments similar to the ones relied on by Mr Palmer relative to the Royal Style and Titles Act 1973 were considered by Hayne J as a single Justice of the High Court in Joosse v ASIC (1998) 159 ALR 260; [1998] HCA 77. His Honour had before him some five separate proceedings, each of which were the subject of applications for them to be removed from various courts in Victoria to the High Court of Australia on the basis that each “arises under the Constitution or involves its interpretation”. His Honour said at [11]:
“In all five proceedings the applicants contend that there has been an unremedied, perhaps even irremediable, ‘break in sovereignty’ in Australia that leads to the conclusion that some (perhaps much) legislation apparently passed by the Parliament of the Commonwealth, or one or more State Parliaments, is invalid.”
38His Honour continued, explaining that it was contended on behalf of the applicants that the:
“references to the Queen in the sovereignty of the United Kingdom , yet since the Royal Style and Titles Act 1973 (Cth) the Queen has been the Queen of Australia and there has been no alteration to the Constitution. Accordingly, so the argument goes, the Royal Assent has not been validly given to a number of Acts of the Commonwealth Parliament.” (1998) 159 ALR 260, 263 [12]
39The resemblance of this argument to the one pressed by Mr Palmer and now under consideration is obvious. His Honour said:
“each application should be dismissed. None of the applicants identifies a point having sufficient merit to warrant removal of the cause concerned into this Court. The points that it is sought to agitate are not arguable.” (Ibid, [15])
40This is as downright a rejection of a legal argument as can be made. His Honour considered the concepts of sovereignty and the evolution of Australia’s constitutional position from its colonial past to a fully sovereign independent nation by reference to the various legal steps referred to above, such as the Statute of Westminster, the Statute of Westminster Adoption Act and the Australia Act. In considering the argument as to the alleged break in sovereignty, his Honour said it was covering clause 5 of the Constitution which was key. The clause states:
“This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.” ((1998) 159 CLR 260, 265 [19])
41His Honour continued:
“It is, then, to the Constitution and to laws made by the Parliament of the Commonwealth under the Constitution that the courts must look. And necessarily, of course, that will include laws made by the States whose Constitutions are continued, the powers of whose parliaments are continued, and the existing laws of which were continued (subject, in each case, of course, to the Constitution) by ss 106, 107 and 108 of the Constitution.” (Ibid, [19])
42As to the Royal Style and Titles Act, his Honour said:
“As I understand it, the principal burden of the argument is that an Act of Parliament, changing the style or title by which the Queen is to be known in Australia, worked a fundamental constitutional change. The fact is, it did not.” (Ibid, [20])
43The jurisdictional challenge based on changes in the monarch’s Styles and Titles failed.
44Logically, the same reasoning leads to the conclusion that insofar as Mr Palmer challenged the entitlements of the Deputy Commissioner on the same basis of a break in sovereignty, such challenge to the Deputy Commissioner’s authority must likewise fail.
45Mr Palmer also challenged the court’s jurisdiction on the basis that it was a trading corporation and, as such, could not exercise judicial power.
46The first point to note relative to this contention is that there is nothing in the County Court Act 1958, or any other statute, which constitutes the court as a corporation, either aggregate or sole.
47Mr Palmer’s contention in this respect was based on a decision of the High Court of Australia, namely Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171. He took me to material obtained online relative to Australian Business Numbers, indicating that state bodies or instrumentalities, such as the court and the Office of the Governor, held Australian Business Numbers. This, he said, indicated that the court was a trading corporation.
48Assuming without deciding that if the court were a trading corporation it would be disabled from exercising judicial power for matters relied on by Mr Palmer does not establish that the court is a trading corporation. In the Queensland Rail case, the High Court considered a series of questions including whether the Commonwealth Fair Work Act 2009 applied to Queensland Rail and its employees to the exclusion of a state statutes, Queensland Rail Transit Authority Act 2013. The Commonwealth Act would have overriding operation relative to Queensland Rail. Inter alia, if Queensland Rail were considered to be a trading corporation within the meaning of s51(XX) of the Commonwealth Constitution. It was contended on behalf of Queensland Rail that it was not a trading corporation because its constituent statute established it as an entity which was “not a body corporate”.
49The court analysed the functions and operations of Queensland Rail and concluded that it did engage in a commercial enterprise and so should be regarded as being “a trading corporation” for constitutional purposes.
50It may be that the Queensland Rail case constitutes an answer to the matter which I raised earlier, namely that there is nothing in the County Court Act, or any other legislation, which constitutes this Court as a corporation. What is lacking, however, is a demonstration that its activities constitute it as a trading corporation. Mr Palmer drew attention to the Australian Business Number and said that the court was in the business of “hiring out courtrooms”. Whether that accurately characterises some of the court’s activities I am unable to say. I do not have exhaustive knowledge of all of the court’s operations. I know sufficient of its activities, however, to be confident that they are predominantly judicial and therefore governmental rather than trading or commercial. If any trading or commercial activities is in fact undertaken, it is minor and incidental to the dominant judicial and governmental, such that the court does not bear the overall character of a trading corporation.
51Australian Business Numbers are required inter alia for government entities defined to include Commonwealth and State Departments and other government agencies. A number system (Australian Business Numbers Act 1999, s5) regime was apparently established to facilitate the collection of taxes by the Commonwealth. It is an ordinary enactment of the Commonwealth Parliament not a constitutional amendment. It is not apt to impose a trading character upon the court or its activities.
52A further subset of Mr Palmer’s jurisdictional challenge was a contention that Judicial Registrar Tran (as her Honour then was) was not authorised to exercise Federal judicial power as a judicial registrar. He referred to R v Davison (1954) 90 CLR 280. In that case, the High Court invalidated as contrary to the provisions of Chapter III of the Constitution, purporting to authorise a registrar in bankruptcy to make sequestration orders. The Court concluded that the regime purported to authorise a person [viz the registrar] who did not constitute a court, in particular, did not constitute the then Federal Court of Bankruptcy with authority to exercise Commonwealth judicial power and was therefore invalid.
53Mr Palmer said an arrangement which purported to authorise the judicial registrar to deal with his application for a summary dismissal of this proceeding was likewise offensive to Chapter III of the Commonwealth Constitution. It was common ground that this proceeding in its entirety is a Federal matter and must therefore be determined in accordance with Chapter III of the Commonwealth Constitution.
54Ms Wilson on behalf of the plaintiff referred to a later decision of the High Court in Commonwealth of Australia v The Hospital Contribution Fund of Australia (1982) 150 CLR 49, where the Commonwealth had sought declaratory relief against the fund contending that a Master of the Supreme Court of New South Wales did not have power to deal with subpoenas that had been issued by the fund against a Commonwealth Minister.
55In accordance with earlier authorities, such as Kotsis v Kotsis (1970) 122 CLR 69 and Knight v Knight (1971) 122 CLR 114, the High Court held that a Master of the Supreme Court of New South Wales was not a “component part of the court”. Nevertheless, the court held that references in the Constitution and the Commonwealth Judiciary Act to “courts of a state” referred to the relevant courts as institutions and not the persons of which they were composed and, in the circumstances, the Master could be regarded as constituting the Supreme Court of New South Wales for the purpose of the exercise of the powers which were conferred upon him. Kotsis v Kotsis and Knight v Knight, which had invalidated bestowal of federal jurisdiction on Masters, were overruled. ((1982) 150 CLR 49)
56Mr Palmer correctly observed that the HCF case dealt with the situation of a master not a judicial registrar. Davison’s case does not seem to have been expressly overruled in the HCF determination. However, the Registrar in Bankruptcy in Davison’s case was not attached to any particular court, albeit controlled by the Federal Court of Bankruptcy.
57The logic of HCF tells in favour of judicial registrars as much as masters being able to constitute a State court and exercise Federal judicial power.
58In the end, it is unnecessary for me to determine this question. Rule 84.03 of the Court’s rules, dealing with review by judge or judicial registrar decision, by sub-rule (5) provides “A review under this rule shall be conducted by way of a hearing de novo”. Even if there were an issue as to the judicial registrar’s jurisdiction, bringing the matter before a judge of the court would cure that problem. This element of Mr Palmer’s jurisdictional challenge also fails.
59Mr Palmer relied on Bills prepared as part of the Constitution Commission Report 1988, which provided for deletions “omitting obsolete words and so as to recognise the Queen of Australia”. These Bills were never enacted. Mr Palmer said that the fact that they were not enacted indicates that one cannot simply treat the references in the 1900 Constitution to the Queen of the United Kingdom et cetera as equivalent to a reference to the Queen of Australia.
60The fact that these Bills were not enacted might be regarded as indicative of an opinion that they were unnecessary, which is consistent with the view advocated here by the plaintiff.
61Another element of Mr Palmer’s contention of a radical break in constitutional continuity in 1973, such that enactments since that date are invalid, is based upon the defacing of the former Great Seal of the Commonwealth of Australia and its replacement with a new seal in 1973. Mr Palmer produced material from the National Archives of Australia, including a Royal Warrant signed by the Prime Minister of Australia as at 1973, the Honourable EG Whitlam, directing the Governor-General of Australia to deface the existing Great Seal adopted on 16 February 1954, adopting in lieu of that former seal the new one submitted. This document is styled “Royal Warrant” and is endorsed by Her Majesty “Elizabeth R”. Also included in the material was advice to the Governor-General from Mr Whitlam, as prime minister, to the effect that, whilst there was no legal necessity for the 1973 Statute to be “reserved for Her Majesty’s pleasure”, it was appropriate nevertheless for the 1973 Bill to be submitted to Her Majesty. As we have seen, she assented. Where Queen Elizabeth the Second, the monarch in proper succession to Queen Victoria, the monarch at the time of the adoption of the Commonwealth Constitution, assented to the defacement of the 1954 version of the Great Seal and the adoption of a new one, it is not evident why this should represent a radical break in sovereignty so as to invalidate subsequently enacted laws assented to by Her Majesty under her new title, Queen of Australia.
Personhood
62I have already drawn attention to the unorthodox manner by which Mr Palmer refers to himself on court documents in the heading the suffix “Being a subject of the King of the United Kingdom”.
63In a set of questions headed “Defendant’s Updated Conditional List of Issues”, at paragraph 76 Mr Palmer said “How can the plaintiff establish that the defendant is a ‘person’ for the purpose of the legislation they rely on when a ‘person’ is defined as ‘an abstraction, a creature of the mind only. It is imaginary, having neither actuality nor substance, is foreclosed from obtaining parity with the tangible such as the living man or woman, as per Cutchell v Denver and Spalding v Denver, as well as the LibertyWorks Inc v Commonwealth of Australia 2021 HCA 18 case, when the defendant is quite clearly a living, breathing man a de jure solum et naturale.
64He noted that the definition of tax payer in the Income Tax Assessment Act 1936 referred to a “person deriving income or profits or gains of a capital nature”. He referred to the definition of person in s195.1 of the Statute, “A New Tax System (Goods and Services Tax Act 1999) as being “includes a company”. He said “it does not, however, state that it includes a man or a woman”.
65The Oxford English Dictionary online edition gives one of the principal meanings to the noun “person” as “an individual human being; a man, woman, or child”. Most words in a statute are not the subject of specific definition. They bear their ordinary meaning as used in the English language.
66As to the definitions beginning with the words “means” or “includes”, according to Pearce and Geddes Statutory Interpretation in Australia (7th edition), “The orthodox, and it is submitted, the correct approach to the understanding of the effect of these expressions [viz means and includes] is that ‘means’ is used if the definition is intended to be exhaustive, while ‘includes’ is used if it is intended to enlarge the ordinary meaning of the word.” ([6.61] 248)
67The normal meaning of the word “person” is as quoted from the Oxford English Dictionary. The word “includes” in the definition to be found in the Goods and Services Statute has the effect of extending the meaning. Assuming that the definition in the Goods and Services Tax Statute relied on by Mr Palmer had any relevance (which it does not), its effect would be that person means human beings in accordance with its ordinary meaning as an English word, but also extends to companies. There is no basis for the contention that Mr Palmer is not a person and therefore is outside the definition of “tax payer” for the purposes of the income tax legislation.
King Charles III
68Mr Palmer noted the accession of King Charles III to the throne, observing “On the 19th of September 2022 the Queen’s funeral was televised around the world and, at the time [she] was about to be buried, her full list of titles was read out – there was no mention of her being ‘Queen of Australia’.”
69I have already referred to the 1973 Statute as to the late Queen’s title as Queen of Australia to which she acceded in her own handwriting. The manner in which her funeral ceremony was conducted cannot divest the standing of that instrument.
Solicitors unable to act
70Mr Palmer said that he despatched an email to the solicitors for the plaintiff advising “they would be required to produce a copy of the oath they have taken”. He referred to an oath prescribed by s8 of the Imperial Acts Application Act 1922, which he said “applies in this matter through s3 of the Constitution Act 1975”. Accordingly, he said “the solicitors for the plaintiff can no longer act in this matter and, unless the plaintiff is prepared to represent himself, the matter must be struck out.
71Section 88 of the Imperial Acts Application Act 1922 provided:
“Except so far as may be otherwise specially provided by or under any Act every person shall before he is admitted and enrolled as a barrister and solicitor take the oath of allegiance and an oath that he will well and honestly demean himself in the practice of the profession of a barrister and solicitor according to the best of his knowledge and ability and admission shall be deemed not to be complete until an order of the Court for admission has been taken out and the roll signed.”
72In the edition of the Imperial Acts Application Act published as part of the 1928 consolidation of Victorian legislation, this section is struck out with the note that the subject matter is now dealt with in ss2 and 5 of the Legal Profession Practice Act 1928. Section 2 repeals s88 of the Imperial Acts Application Act and s5(2) reacts s88 as part of the Legal Profession Practice Act. Section 5(2) of the Legal Profession Practice Act 1958 was to similar effect. The 1958 Act has now been repealed. The current statute governing admission to the legal profession is the Legal Profession Uniform Law Application Act 2014. Section 16(1)(c) stipulates the taking of an oath of office or an affirmation of office, but not an oath of allegiance. The Legal Practice Act 1996, which was the statute governing admission of practitioners when Ms Wilson, plaintiff’s counsel, was admitted (1998) required in s6(1)(c) the taking of an oath as required by the Supreme Court. In any event, such oaths or affirmations, whether of office or of allegiance, are taken orally in the same way as the oath or affirmation made by a witness giving evidence in court is administered and given orally.
73Therefore, a person who has taken such an oath would not have a document which could be tabled on the demand of a litigant such as Mr Palmer. The presumption of regularity which attends all legal and administrative steps means that it is not incumbent on the solicitors for the plaintiff to prove that they have been regularly admitted to practice.
74If Mr Palmer had advanced some prima facie evidence to call the regularity of their admission to practice into question, it may be that it would have been incumbent upon them to respond in some way. As it is, such grounds to doubt their admission has been made out and this objection to the regularity of the proceeding likewise must be rejected.
Misconduct by the plaintiff
75Amongst the matters urged by Mr Palmer as constituting abuse of process such that the plaintiff’s claim should be summarily dismissed, was the contention that it said that the assessments which the plaintiff sued on were created as a result of notices to corporations. He said that the statute empowered a Commissioner, not a Deputy Commissioner, to issue those notices, continuing “problem is, sir, that every single one of those … were issued by purported Deputy Commissioner of Taxation.” (T55, L24‑28) Speaking of Mr Ravanello, he said “this second Commissioner of Taxation is acting as a Deputy Commissioner of Taxation.” (T56, L16‑17) He said that this was fraud and “that fraud vitiates all contract, including court orders.” (Ibid L28-29) The position of Mr Ravanello, the officer in whose name the notices in question were served and in whose name this proceeding was launched, was dealt with in a number of the plaintiff’s affidavits.
76Mr Dung Dinh, in an affidavit sworn 18 February 2019, deposed that he knew Mr Ravanello to be a Deputy Commissioner of Taxation by reason of Mr Dinh’s employment in the debt section of the Australian Taxation Office. He exhibited an extract from the Australian Public Service Gazette dated 11 January 2007, announcing the promotion of Mr Ravanello to Senior Executive Band 2 (First Assistant Commissioner of Taxation), and a letter from the Commissioner, Mr D’Ascenzo, to Mr Ravanello relative to his promotion. (CB 710, 713‑14) Mr Kumar swore an affidavit exhibiting an extract from the Executive Council minutes appointing Mr D’Ascenzo as Commissioner of Taxation, together with an Order in Council in the name of the Governor General. (CB 737‑8) Mr Dinh also exhibited correspondence from the Australian Public Service Commissioner authorising the Commissioner to appoint Mr Ravanello to “Senior Executive Band 2” and an instrument signed under the Public Service Act 1999 by the Commissioner, Mr D’Ascenzo, assigning the duties of Deputy Commissioner to Mr Ravanello. (CB 716‑18) Mr Palmer said that assigning duties was not the equivalent of appointing Mr Ravanello as a Deputy Commissioner.
77Documents establish that Mr Palmer’s assertion that Mr Ravanello was a Second Commissioner is incorrect. Mr Palmer seeks to draw a distinction between “appointment” of a Deputy Commissioner on the one hand and “assignment of duties” on the other. He contends that “assignment of duties” is not the equivalent of an appointment. Mr Palmer also drew attention to the definition of a Deputy Commissioner at s995‑1 of the Income Tax Assessment Act 1997 which states that a Deputy Commissioner is a Deputy Commissioner of Taxation. The definition says nothing about such a Deputy Commissioner having to be “appointed”, as distinct from having the relevant duties assigned to him or her. The model apparent in the Public Service Act 1999 is that the concept of appointment used in various sections pertains to the most senior officers such as the Public Service Commissioner, Special Public Service Commissioners, Secretaries of Departments and so forth. It would seem to follow that for senior appointments, albeit at a lower level, the appropriate mode is assignment of duties under s25 of the Act, which is what the documentation here appears to require. In any event, Ms Wilson referred to s175 of the Income Tax Assessment Act 1936 headed “Validity of Assessment”, which provides “the validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.” The effect, she said, was that even if there were an irregularity in Mr Ravanello’s appointment, the validity of the assessments would not be called into question.
78The attack on Mr Ravanello’s appointment as Deputy Commissioner therefore fails.
Title of proceeding
79Schedule 1 to the Taxation Administration Act 1953 provides inter alia:
“(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.”
80Mr Ravanello appears to have purported to avail of this empowering provision in commencing the present proceeding. Mr Palmer contended that the “official name” of Mr Ravanello included his surname and given name, rather than simply his designation as a Deputy Commissioner of Taxation, which is the manner in which the proceeding has been commenced. Ms Wilson referred to and relied on a decision of the Federal Court of Bankruptcy constituted by Clyne J in Re Smith; ex parte the Deputy Commissioner of Taxation Petitioner (1958) 18 ABC 75, where his Honour remarked:
“While it seems to be a fairly common practice to prefix the full name of the Deputy Commissioner in petitions against defaulting taxpayers, it seems to be an unnecessary practice.”
81At that stage, the relevant statutory provision empowering a Deputy Commissioner to sue for and recover outstanding tax debts “in his official name” is to be found in s208 of the Income Tax Assessment Act 1936. The Deputy Commissioner who had presented the petition in bankruptcy died shortly before the hearing in the Federal Court of Bankruptcy commenced. His Honour said that another person could, by virtue of the powers bestowed by the relevant legislation, continue the proceeding commenced by the late Deputy Commissioner as long as that person was himself or herself a Deputy Commissioner. In reaching this conclusion, his Honour relied inter alia upon a decision of the High Court in James v Deputy Commissioner of Taxation (1957) 97 CLR 23, 35 where, in a joint judgment, Dixon CJ, Fullagar and Kitto JJ said:
“We think that the Commissioner or Deputy Commissioner is empowered to take proceedings in bankruptcy for the recovery of the tax as a Crown debt. The officer may proceed in his own name but he sues for the Crown and as plaintiff or actor it is not in his own right but that of the Crown that he proceeds. … His is but an official name, but it is the correct name in which the Crown sues.”
82These authorities also deal with the situation as to Ms Melinda Smith, who has succeeded Mr Ravanello as Deputy Commissioner and is now the person prosecuting the claim against Mr Palmer. The same authorities vested in Mr Ravanello are vested now in Ms Smith. The documentation relative to her appointment is to be found at pages 312‑314 of the CB. In accordance with the principles stated in Smith’s case, no amendment to the proceeding is required to accommodate the change.
Model litigant
83Mr Palmer criticised the Deputy Commissioner for failing to observe his obligations as a model litigant. He complained about the court proceeding that had gone on “for four and a half years.” He remarked “I would hate to think what fees have been racked up …”. (T51, L20‑22) He said “does it not strike you as a little bit strange that after four and a half years, there has not been one single conversation between the plaintiff and the defendant? There has been no attempt to mediate, no conversations about how can we settle this? Are there any points of agreement?” (T50, L23‑28) Mr Palmer said that he had responded to all correspondence. He continued “I’ve said [I am] more than happy to pay anything that I’m obligated to pay … file any document that I’m lawfully obligated to file.” (T51, L2‑5) He conceded, however, that “we were in mediation before the case began.” (Ibid, L12) He then said “I don’t have any assets, I haven’t got any money, … what are they going to do, just bankrupt me just to go, oh well, you’ve been a naughty boy. We’re going to punish you by bankrupting you.” (T53, L5‑9) As far as lodging tax returns is concerned, he said that this would be equivalent of slavery, or that it constituted slavery “which was outlawed a very long time ago.” (T126, L15‑16)
84In the circumstances, it is difficult to treat Mr Palmer’s protestations about lack of communication from the Commissioner as being sincere. It seems there was a mediation. If, as he said, he has no assets, his promise to pay anything which it was legally established he was required to pay would seem to be empty. Mr Palmer has refused to accept the standing and authority of any of the persons with whom he has dealt, including judges of this Court, a judicial registrar, the Deputy Commissioner of Taxation, and the Commissioner’s solicitors. He declines even to admit that he is a person.
Objections
85As I explain below, the regime for the collection of income tax and, if it matters, other federal and state imposts entails an assessment system which may be the subject of objection or appeal with the assessment standing and being enforceable unless and until revoked or set aside under the objection or appeal process. In this instance, whilst Mr Palmer has lodged documents purporting to be objection, they have not been accepted as such by the Commissioner. The result is that there are no operative objection or appeal processes in progress relative to the taxes which the Deputy Commissioner claims are owing by Mr Palmer. The forms of objection lodged, or purportedly lodged, by Mr Palmer are to be found at CB 402‑406. The Commissioner’s response was that the objection or objections were invalid. (CB 408) This was reiterated by a further notice which is to be found at CB 414. Rather than engaging with the issues arising under the income tax legislation or using the proper objection form, Mr Palmer’s correspondence effectively demands proof of authority and challenges the authority of those with whom he is corresponding.
86Even if there were effective appeal or review proceedings in existence relative to the amounts claimed in this proceeding, their pendency would not constitute a bar to the continuation of this proceeding. (Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473)
Statement attributed to Commissioner’s officer
87Mr Palmer said that on one occasion during the ongoing drama, he “picked up the phone and … called the Australian Taxation Office. (T139, L29‑30) He explained the position which he took and, according to him, his interlocutor at the Tax Office said “well, look, you know, given what you’re saying, perhaps the best thing is if we just remove you from the tax roll. Okay? And then you don’t have to file those tax returns anymore.” (T140, L3‑6) He said this conversation took place about 15 years ago. (Ibid, L13‑14) As I understood his position, it was that this conversation, in effect, exempts him from paying tax from then on.
88The Commissioner of Taxation and his or her officers are given statutory powers and statutory duties under income tax legislation. It is not evident to me that even the Commissioner himself or herself would be empowered under the income tax legislation to grant the sort of exemption which Mr Palmer says he was given. I am clear that an officer in a call centre would have no such authority. By reason of considerations such as these, the doctrine of estoppel by representation generally has no operation in public law. This matter was considered at length by Gummow J as a judge of the Federal Court of Australia and a member of its Full Court in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193. Even if a taxation officer said what Mr Palmer attributed to him or her (as to which I am highly sceptical) it would not have any effect on his tax liability.
Conclusion on review application
89The authorities are numerous and too well-known to require rehearsal here that no summary disposition in favour either of plaintiff or defendant should be made other than in the clearest of cases. Since I have not found the various matters urged by Mr Palmer to be well-founded, his application to have the judicial registrar’s determination declining to effect a summary dismissal reversed must fail.
The plaintiff’s claim
90The Commissioner of Taxation of the Commonwealth and other revenue raising authorities are in a peculiarly advantaged position as litigants. The scene of a stressed parent arguing with a recalcitrant child is fairly familiar. The parent issues a directive and the child asks “why?” Eventually the parent explodes explaining “because I say so.” The Commissioner and the Deputy Commissioners are in proceedings such as the present in the same position as the parent except the “because I say so” is given full legal force.
91Ms Wilson noted that by virtue of s350‑10 Schedule 1 of the Taxation Administration Act 1953, an assessment of taxation was conclusive evidence that it had been properly made and except in review or appeal proceedings, that the amounts and particulars of the assessment are correct. She noted the authority under the predecessor to this provision, namely, s177 of the Income Tax Assessment Act 1936, establishing that in debt collecting proceedings such as the present, the validity of the assessment could not be challenged. FJ Bloenen Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 360, 375; Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, 166 [64]‑[65]; and Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 1237 CLR 473, 491‑3 [40]-[45]. She said that in a joint judgment, French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ said in Bell Group NV (in liquidation) v Western Australia [2016] HCA 21 [54]:
“The legal and practical effect of the Tax Acts was such that the production of a notice of assessment is conclusive evidence of the due making of the assessment of a taxation liability and except in proceedings under part IVC of the TAA [that is, appeal or objection proceedings under the Taxation Administration Act] that the amount and all particulars of the assessment are correct.”
92She said the Victorian Court of Appeal had recently applied this principle in Deputy Commissioner of Taxation v Buzadzic [2019] VSCA 221, special leave to appeal denied by the High Court, 11 March 2020. She referred to s350‑15 of Schedule 1 to the Taxation Administration Act and Regulation 24 of the Taxation Administration Regulations 2017 as establishing that a document purporting to be signed by inter alia a Deputy Commissioner was presumed to have been duly signed unless it was proved that the document was issued without authority. She referred to a statement by Bongiorno J in Deputy Commissioner of Taxation v Lewer [2001] VSC 114 [6], where, in summarising the advantages enjoyed by the Commissioner and the Deputy Commissioner in proceedings such as the present, his Honour said:
“The Deputy Commission of Taxation enjoys a number of procedural advantages over ordinary litigants conferred upon him by the legislation which permits tax to be collected and arranges for the mechanism to do so. One of those advantages is the ability to conduct a trial of this nature on affidavit, provision being found in s.255-55 of Schedule 1 of the Taxation Administration Act 1953 (Commonwealth) which provides a number of items of administrative assistance to the Commissioner in proving his claim. For one thing, as I have indicated, he can proceed by way of affidavit. Secondly, he can proceed by way of an evidentiary certificate which provides prima facie evidence of the matters contained in it including matters relating to the service of assessments, the quantum of assessments and the total amount owing.”
93She reiterated that the existence of appeal or review proceedings did not block the Commissioner from taking recovery proceedings such as the present, referring to the judgment of Kenny J in Deputy Commissioner of Taxation v Hua Wang Bank Berhad (No 2) [2010] FCA 1296 [49].
94According to Ms Wilson, the present proceeding had been brought in a court of competent jurisdiction and fell within federal jurisdiction. She referred to s39(2) of the Judiciary Act 1903 of the Commonwealth in that regard, which states:
“The several Courts of the States 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 upon it …”
95As to the various portions of the plaintiff’s claim, Ms Wilson relied on a series of certificates being either conclusive or prima facie evidence. Given that this proceeding has been on foot for some four and a half years, I propose referring only to the most up-to-date of the relevant certificates rather than to those which have been superseded by the passage of time.
96The most recent certificates are to be found exhibited to an affidavit sworn by Mr Dinh, 11 November 2022, which attaches some three certificates. The first is expressed to be made under s350‑10(3) of the Taxation Administration Act 1953, Schedule 1. This sub-section provides:
“Conclusive evidence
(1) The following table has effect:
Conclusive evidence
Item
Column 1
The production of …
Column 2
is conclusive evidence that …
3
a notice under any of the following:
(a) section 18‑140 in this Schedule;
(b) section 102UR, 177EA or 177EB of the Income Tax Assessment Act 1936;
(c) section 271‑90 in Schedule 2F to that Act;
(a) the notice was properly given; and
(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the notice—the amounts and particulars of the notice are correct.”
97Crucially, this certificate over Deputy Commissioner of Taxation, Ms Melinda Smith, states that from 11 November 2022 an amount of $1,439,301.71 was payable by Michael Gareth Palmer under a taxation law to the Commissioner of Taxation in respect of the tax-related liabilities referred to in this certificate inclusive of associated general interest. The certificate earlier referred to each of the assessments for tax years 2008 to 2016, which were made 26 February 2018. The second certificate, also a conclusive certificate under s350‑10(3) of the Act, refers to failures to lodge and the levying of administrative penalties certifying that:
“From 11 November 2022 an amount of $9,032.14 was payable by Michael Gareth Palmer under a taxation law to the Commissioner of Taxation in respect of the tax-related liabilities referred to in the certificate.”
98The third certificate refers to administrative penalties for failure to provide a document for several period, being the periods ending 30 June for each of the years 2008 to 2016. The assessments for these penalties are referred to in paragraph 2 of the certificate and paragraph 4 says “from 11 November 2022, an amount $793,005.91 was payable by Michael Gareth Palmer under a taxation law to the Commissioner of Taxation in respect of the tax-related liabilities referred to in this certificate (inclusive of associated general interest charge).” Ms Wilson pointed out at paragraph 15 of her opening submissions that the certificates were under the terms of the Taxation Administration Act “conclusive evidence that the assessments [were] properly made and the amounts and the particulars of the assessments are correct.” She referred to s350‑10 of the Taxation Administration Act. The authorities already recited indicate that it is not competent for a taxpayer in a proceeding such as this to challenge the validity of the assessment. To the extent that these certificates are prima facie only they will carry the day, particularly in light of the existence of the assessments, which has not been denied, in the absence of evidence to the contrary. None of the matters advanced by Mr Palmer described above and rejected goes to the accuracy of the figures. His attack, rather, was upon the standing of those involved, or purportedly involved, in making the assessment and giving the certificate.
99Accordingly, judgment should be given in favour of the Deputy Commissioner for the total of the amounts certified as being due and payable by the defendant as at 11 November, namely, $2,241,339.76.
Costs
100I have heard no submissions on the question of costs so they will be reserved.
28
0