Deputy Commissioner of Taxation v Webb
[2017] FCCA 1137
•30 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEPUTY COMMISSIONER OF TAXATION v WEBB | [2017] FCCA 1137 |
| Catchwords: BANKRUPTCY – Constitutional law – power of a registrar of the Federal Circuit Court of Australia to make a sequestration order – whether an impermissible conferral of judicial power upon an officer who was not a Chapter III judge – application dismissed. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.27, 31A, 35, 35A, 52, 102(2)(i), 103 Commonwealth of Australia Constitution Act 1900, ss.5, 58, 59, 60, 79, 80 |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 The Honourable Justice Kenneth Hayne AC, Statutes, Intentions and Courts: What Place Does The Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction? (2014) 13(2) Oxford Commonwealth Law Journal, 271 |
| Applicant: | DEPUTY COMMISSIONER OF TAXATION |
| Respondent: | GRAEME LEE WEBB |
| File Number: | MLG 1313 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 10 May 2017 |
| Date of Last Submission: | 10 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Wilson |
| Solicitors for the Applicant: | The Australian Government Solicitor |
| Respondent in person |
THE COURT DECLARES THAT:
The sequestration order made against the estate of Graeme Lee Webb on 10 November 2016 was validly made.
The application for review filed on 30 November 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1313 of 2016
| DEPUTY COMMISSIONER OF TAXATION |
Applicant
And
| GRAEME LEE WEBB |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 30 November 2016 Graeme Lee Webb sought the review of orders made by a registrar of this court pursuant to which,
on 10 November 2016, a sequestration order was made against
Mr Webb’s estate.
In his application for review Mr Webb sought orders setting aside the registrar’s sequestration order and orders dismissing the applicant’s petition filed on 22 June 2016.
In essence, Mr Webb asserted that –
a)the registrar did not have authority to adjudicate upon this matter;
b)the Deputy Commissioner of Taxation (“the applicant”) did not have authority to prosecute the proceeding founded on the creditor’s petition; and
c)the Income Tax Assessment Act 1936 (Cth) (“ITAA”) was not lawfully enacted “as it does not have a proclamation certificate as prescribed by the Commonwealth Constitution”.[1]
[1] Paragraph 4 of the affidavit of Graeme Lee Webb affirmed 22 March 2017.
The applicant and Mr Webb’s trustee in bankruptcy disputed
Mr Webb’s contentions in this case.
Synopsis
For the reasons that follow, in my judgment –
a)the application for review must be dismissed;
b)the registrar in fact had full lawful authority to make the sequestration order on 10 November 2016;
c)the applicant in fact had full lawful authority to prosecute the proceeding founded on the creditor’s petition; and
d)the ITAA was lawfully enacted.
Short factual narrative
On 28 September 2012 the applicant entered default judgment against Mr Webb for $108,801.04 (“the judgment debt”).
On 25 November 2015 (over three years later) the Official Receiver issued a bankruptcy notice against Mr Webb in which the amount due was expressed as being $144,707.74. The difference between that amount and the judgment debt was $35,906.70 being interest accrued since the entry of the judgment debt.
On 6 January 2016 at 4.35 p.m. Betty Dyer, a process server, personally served Mr Webb with the bankruptcy notice and a copy of the default judgment.
Mr Webb did not respond to the service upon him of the bankruptcy notice within 21 days, in accordance with the provisions of the Bankruptcy Act1966 (Cth) (“the Act”). He thereby committed an act of bankruptcy within the meaning of the Act.
On 22 June 2016 the applicant in this proceeding filed a creditor’s petition. In it the applicant correctly recorded the amount of the judgment debt, the amount of interest on that sum and a payment of $1,000.00 made by Mr Webb. The act of bankruptcy recorded in the creditor’s petition was Mr Webb’s failure to comply on or before
27 January 2016 with the requirements of the bankruptcy notice served on him on 6 January 2016 or to satisfy the court he had a counterclaim, set-off or cross-demand equal to or more than the sum claimed in the bankruptcy notice, being a counterclaim, set-off or cross-demand that he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained.
The creditor’s petition was duly served personally upon Mr Webb by Ms Dyer at 7.58 p.m. on 28 June 2016. Other documents referred to in Ms Dyer’s affidavit sworn 6 July 2016 were also personally served upon Mr Webb.
On 18 August 2016 the hearing of the creditor’s petition came
before Registrar Ryan of this court. On that day, the registrar
adjourned the further hearing of the petition to 29 September 2016.
On 29 September 2016, the registrar heard the adjourned hearing of the creditor’s petition and adjourned it to 10 November 2016.
On 9 November 2016, that is to say the day before the sequestration order was made against the estate of Mr Webb, a public servant employed by the Australian Taxation Office (“ATO”) swore an affidavit verifying Mr Webb’s ongoing indebtedness to the applicant in the sum claimed. The affidavit also pointed out that the applicant in this case was not the ATO but rather, the applicant in this case
was a natural person by the name of Robert John Ravanello, a
Deputy Commissioner of Taxation.
Having reviewed the affidavit material and other documentation in existence before Registrar Ryan on 10 November 2016, I am
satisfied that Registrar Ryan, quite properly and regularly,
made the sequestration order against the estate of Mr Webb on
10 November 2016.
Mr Webb applied to review the registrar’s sequestration order by application to this court made within the prescribed time limited by s.104(2) of the Federal Circuit Court of Australia Act 1999 (Cth).
When hearing a review of the decision of a registrar of this court pursuant to which a sequestration order was made, the proceeding is
de novo. The Honourable Justice Gordon said as much in Moran v Lydiard Financial Services Pty Ltd.[2]
[2] [2007] FCA 872.
In a de novo hearing all issues must be retried, as was pointed out by Glass JA in Turnbull v New South Wales Medical Board.[3] The party that was successful when the case was first heard enjoys no advantage and must, if possible, win for a second time, as was held in Sweeney v Fitzhardinge.[4] Other authorities have made holdings along similar lines. Those other authorities include Pattison v Hadjimouratis[5] (Jacobson J) and O’Meara v Hitwise Pty Ltd[6] (Kiefel, Sundberg and Gyles JJ). Those authorities bind me whereas the decision referred to in paragraph 39 of the applicant’s submissions, being a decision of a magistrate, is of no precedent value to me and I decline to follow it.
[3] [1976] 2 NSWLR 281, 296.
[4] (1906) 4 CLR 716.
[5] (2006) 155 FCA 226, 235.
[6] (2007) 160 FCR 518, 521.
One of two joint and several trustees of Mr Webb’s estate swore an affidavit on 9 May 2017. Several important matters emerged from
Michael Carrafa’s affidavit. They may be catalogued as follows –
a)Mr Webb has failed to provide his trustees in bankruptcy with a statement of affairs with the consequence that Mr Webb committed an offence under the Act;
b)the estimated value of Mr Webb’s total assets was between $500,000.00 and $560,000.00 whereas his actual liabilities were $545,799.00;
c)applying the conservative estimated realisable value of the assets ($500,000.00) and deducting therefrom the actual total liabilities ($545,799.00), an estimated deficiency of $45,799.00 was thereby produced;
d)Mr Webb may additionally be required to make compulsory income contributions from his net assessable income to the estate;
e)it is unlikely Mr Webb has sufficient funds to pay creditors of his estate;
f)the trustee’s costs stood at $29,217.86 on 9 May 2017;
g)Mr Webb has failed to cooperate with the trustees; and
h)Mr Webb is insolvent.
The details recorded in the creditor’s petition were correct. Proof was adduced that the petition had been duly served. Proof was given that Mr Webb was and remains insolvent. Proof was also given that the searches required by r.4.06 of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (“the rules”) had been made. I was satisfied that the applicant’s formal proofs were in order with the consequence that the applicant satisfied the requirements of s.52(1) of the Act.
Absent any of the grounds advanced by Mr Webb having been established, the applicant was entitled to an order that the estate of
Mr Webb be sequestrated.
Mr Webb’s grounds of opposition
In paragraph 3 above I have set out the grounds advanced by Mr Webb in his opposition to the making of an order for the sequestration of his estate. Those grounds were taken from his application for review. In an affidavit filed by Mr Webb immediately prior to the hearing of the proceeding before me, Mr Webb advanced a collection of further grounds to which the applicant has responded more formally. The more expanded collection of grounds subsumed the three grounds expressed in the application for review. I have addressed the more expanded grounds in the passages that follow.
The question is whether one or more or any of those grounds had merit.
None did.
Let me explain why.
First ground – the registrar did not have authority to adjudicate this matter and to make the sequestration order
In my judgment, the registrar did.
The reasoning that best expresses the legal determination of this ground may be stated in the following manner –
a)the Act is the source of the power of the Federal Circuit Court of Australia (“FCCA”) to make a sequestration order;
b)the Federal Circuit Court of Australia Act permits certain powers conferred upon judges of the FCCA to be exercised by a registrar of the FCCA, including powers prescribed by the rules; and
c)item 9 of schedule 1 of the rules provides that the power to make a sequestration order against the estate of the debtor is a power of the FCCA that may be exercised by a registrar.
Let me develop those concepts.
Pursuant to s.27 of the Act, the Federal Court of Australia (“FCA”) and the FCCA are concurrently seized of the power of the court exercisable under the Act. That jurisdiction is exclusive of the jurisdiction of all courts other than the High Court of Australia under s.79 of the Commonwealth of Australia Constitution Act 1900 (“the Constitution”) and of the Family Court of Australia under ss.35 or 35A of the Act.
According to the FCCA’s annual report for the financial year ended
30 June 2016, the FCCA dealt with 3,874 matters in the bankruptcy jurisdiction of the court, the majority of which were sequestration orders made by registrars.
Certain powers vested in the FCCA may be exercised by a registrar. Section 102(2)(i) of the Federal Circuit Court of Australia Act so provides. In addition, under s.103 of the Federal Circuit Court of Australia Act, under the rules of court applicable to the FCCA any of the powers of the FCCA or a judge thereof may be delegated to a registrar.
Under s.5 of the Federal Circuit Court of Australia Act, “registrar” is defined to mean a registrar of the FCCA. The registrar who made the order for Mr Webb’s estate to be sequestrated was a registrar of the FCCA.
Under s.103(2) of the Federal Circuit Court of Australia Act, when a registrar exercises the power conferred on that registrar, the exercise of that power by that registrar is taken to have been for all purposes the exercise of power by a judge of the FCCA.
As to the specific powers under the Act and the person authorised to exercise those specific powers, schedule 1 of the rules sets out the FCCA’s powers that may be exercised by a registrar, item 9 of which provides that the power to make a sequestration order against the estate of the debtor is exercisable by a registrar.
Mr Webb, as a litigant in person, did not cite any authority for his contention that the registrar who made the sequestration order in this case lacked the power to make the order. As the High Court observed in Re KL Tractors Ltd (in liq),[7] the absence of authority on a particular point is usually explicable on the basis that there has been general consensus of opinion that the point is not tenable (Fullagar J).
[7] (1961) 106 CLR 318.
The point has in fact been previously considered, albeit in the specific context of a registrar of the FCA exercising powers under the Act
when making a sequestration order. In Cheesman v Waters &
Attorney-General (Cth)[8] (“Cheesman”) the Full Court of the Federal Court of Australia (Hill, Heerey and Sundberg JJ) considered a contention that the conferral of the power to make a sequestration order on a registrar of the FCA involved the conferral of judicial power contrary to Chapter III of the Constitution of the Commonwealth of Australia. In that case, the Commonwealth Attorney-General had intervened in respect of the constitutional validity of the conferral of power upon a registrar of the FCA to make a sequestration order.[8] (1997) 148 ALR 21.
Before examining the holding of the Full Court in that case, it is important at this juncture to make several preliminary observations. First, in this case Mr Webb has asserted that the relevant want of power related to a registrar of the FCCA rather than of the FCA, the latter being the registrar with which the court was concerned in Cheesman. Second, it will be recalled that s.27 of the Act conferred coterminous authority upon both the FCA and the FCCA in matters under the Act, that authority included the power to make a sequestration order.
Third, on principles of statutory construction, learning in the
High Court and elsewhere has set out various precepts that guide an intermediate Court such as the FCCA (me, in this case). Let me state them as succinctly as possible.
[11] (1976) 137 CLR 208.
Ultimately, it is the primacy of the words used in the legislation itself that determines the proper construction of the legislation. Since the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (“Project Blue Sky”),[9] Australian law has held that the primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute.[10]
That much is consistent with the observations of Barwick CJ in
Taylor v Public Service Board (NSW).[11]According to Lord Scarman’s speech in the House of Lords in Southwest Water Authority v Rumble’s[12] as well as the observations of Wilson and Mason JJ in Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation,[13] the meaning of a particular legislative provision must be determined by reference to the language of the instrument viewed as a whole.
The context, the general purpose and policy of the provision of a piece of legislation as well as its consistency and fairness are surer guides to meaning than is the topic with which the legislation is constructed.[14]
As was held in Toronto Suburban Railway Co v Toronto Corporation,[15] Minister for Lands (NSW) v Jeremias[16] and K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd,[17] the process of construction must always begin with an examination of the context of the provision that is being construed.
[12] [1985] AC 609.
[13] (1981) 147 CLR 297.
[14] (1998) 194 CLR 355 at [69].
[15] [1915] AC 590,597.
[16] (1917) 23 CLR 322
[17] (1985) 157 CLR 309.
[9] (1998) 194 CLR 355.
[10] (1998) 194 CLR 355 at [69].
High Court authority of very long standing has prescribed that a court construing a statutory provision must strive to give meaning to every word of the relevant provision. So much was held in
TheCommonwealth v Baume[18] as well as in Chu Kheng Lim v Minister for Immigration.[19] No sentence, clause or word is superfluous, void or insignificant if by any other construction they may all be made useful and pertinent.[20]
[18] (1905) 2 CLR 405, 414 and 419.
[19] (1992) 176 CLR 1, 12.
[20] R v Berchet [1794] EngR 1806.
In Project Blue Sky the majority pointed out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended those words to have.[21] Ordinarily, that meaning will correspond with the grammatical meaning of the relevant provision.
[21] (1998) 194 CLR 355 (at [78]).
More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[22] the majority (Hayne, Heydon, Crennan and
Kiefel JJ) held that the task of statutory construction must begin with a consideration of the text itself and that historical considerations and extrinsic material cannot be relied upon to displace the clear meaning of the text.[23] Other decisions of the High Court reflect similar reasoning such as Yanner v Eaton,[24] Yarmirr v Northern Territory,[25] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue,[26] Stevens v Kabushiki Kaisha Sony Computer Entertainment,[27] Carr v Western Australia,[28] Director of Public Prosecutions for Victoria v Le[29] and Northern Territory v Collins.[30]
[22] (2009) 239 CLR 27.
[23] (2009) 239 CLR 27 at [47].
[24] (1999) 201 CLR 351, 366 (at [17]).
[25] (2001) 208 CLR 1, 38–39 (at [13]–[14]).
[26] (2001) 207 CLR 72.
[27] (2005) 224 CLR 193.
[28] (2007) 232 CLR 138.
[29] (2007) 232 CLR 562.
[30] (2008) 235 CLR 619.
In many respects, modern Australian jurisprudence on the subject of statutory interpretation has placed former High Court Justice,
the Honourable Justice Kenneth M Hayne at the vanguard. His
extra-judicial writing on point is illuminating: The Honourable Justice Kenneth Hayne AC, Statutes, Intentions and Courts: What Place Does The Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction?[31]
[31] (2014) 13(2) Oxford Commonwealth Law Journal, 271.
Returning to Cheesman, the Full Court considered the functions of the registrar in concluding that some were essentially clerical involving little more than ascertaining whether a proffered document complied with a statutory requirement. Insofar as other functions of the registrar related to sequestration and distribution, the Full Court held that it did not follow that the making of a sequestration order was a judicial function of a kind that was inherently incapable of valid delegation to a non-judicial officer. The Full Court reasoned that the making of a sequestration order by a registrar was subject to a complete right of rehearing de novo before a judge, as prescribed by ss.31A(6) and (7) of the Act. The Full Court said that the making of a sequestration order was very often a routine and simple function that involved assessing the non-compliance with a bankruptcy notice, the issue and service of the petition and that the statutory requirements of the Act and of the rules made under it had been complied with. The Full Court held that practically speaking, claims under the Act such as the setting aside of fraudulent dispositions or the avoidance of preferences were more likely to give rise to difficult and complex factual and legal issues calling for resolution before a Chapter III judge.
The Full Court quoted from the joint judgment of Mason CJ and
Deane J in Harris v Caladine[32] (“Harris”) ultimately concluding that the trial judge was correct when holding that the facts of Cheesman were indistinguishable from the facts of Harris. The relevant passage from Harris was as follows –
We must emphasise that the role of the officers of the court such as judicial registrars and registrars is secondary to that of the judges. The role of the officers is to assist the judges in the exercise of the jurisdiction, powers and functions of the court. Although it is a commonplace characteristic of modern courts that officers such as masters and registrars exercise jurisdiction, powers and functions in a wide variety of matters, those matters are, generally speaking, subsidiary in importance to matters which are heard and determined by judges.[33]
[32] (1991) 172 CLR 84.
[33] (1997) 148 ALR 21, 28.
So far as any constitutional argument in this case turned on the validity of the delegation to a registrar of the FCCA of a power to make a sequestration order, guidance was given by the decision of the
High Court in Harris. Relevantly distilled, the position is best expressed in the way the Full Court expressed it in Cheesman –
a)a delegation must not be either practically or theoretically an abdication by the court of its jurisdiction, powers or functions so that the judges can no longer be said to constitute the court; and
b)a delegation must not be inconsistent with the obligation of a court to act judicially and the decisions of the officers of the court in the exercise of the delegated jurisdiction, powers and functions must be subject to review by a judge or judges of the court.
As to both, in my view –
a)the delegation of the power to make a sequestration order was, neither practically nor theoretically, an abdication of the court’s jurisdiction, powers or functions;
b)the conferral of power on the registrar to make a sequestration order was not a delegation of power in such manner that it could no longer be said that the judges constitute the court;
c)the delegation of power to a registrar to make a sequestration order is not inconsistent with the obligations of the FCCA to act judicially; and
d)the delegated jurisdiction, powers and functions in the registrar making the sequestration order are subject to review by a judge of the FCCA, in precisely the manner as has been done by me in this case.
While Mr Webb did not specifically contend as much, it is beyond doubt since the High Court’s decision in Re Bryant; Ex parte Guarino[34] (“Re Bryant”) that this court is a court properly established under the Constitution as a Chapter III court.
[34] (2001) 75 ALJR 478.
In Simandl v Deputy Commissioner of Taxation[35] (“Simandl”)
Cowdroy J of the FCA addressed an argument that was very similar to Mr Webb’s argument in this case. That case concerned an order for substituted service made by a registrar. The applicant in that case applied for an order setting aside the bankruptcy notice. She brought that application in (what was then) the Federal Magistrates Court.
The proceeding was referred to the FCA for determination of the applicant’s application dated 4 February 2008 in which she objected to the power of the registrar of the Federal Magistrates Court to the issue of the relevant bankruptcy notice and to the making of an order for substituted service.
[35] [2008] FCA 451.
After addressing the constitutional law issue of the Federal Magistrates Court being a Chapter III court and that it was valid, according to Hayne J in Re Bryant, Cowdroy J held that the registrar of that court (identical in this case to the registrar of the FCCA) properly exercised powers of the Federal Magistrates Court. His Honour specifically addressed the registrar’s powers in a bankruptcy proceeding to make orders in relation to the bankruptcy notice and in relation to substituted service. His Honour relied on s.102(2)(i) of the Act and on the
schedule to the Federal Magistrates Court (Bankruptcy) Rules. Citing Cheesman, Cowdroy J concluded that a registrar of the
Federal Magistrates Court had power to make orders pursuant to the Federal Magistrates Court (Bankruptcy) Rules.
The enabling legislation pursuant to which the FCCA was established (or, more properly, renamed) contains ss.102 and 103 as was the situation in Simandl. The reasoning is identical in respect of the application of the holding in Simandl concerning the registrar’s powers under the legislation relevant to the Federal Magistrates Court as it is in relation to the application of legislation relevant to the FCCA and the power of the registrar.
In my judgment, the registrar did possess the requisite power to make the sequestration order against Mr Webb’s estate.
Second ground – the applicant’s authority to prosecute this proceeding
Mr Webb asserted that the applicant had no authority to prosecute this proceeding.
For the reasons that follow, I am of the view that his assertion is wrong. In my judgment, the applicant validly commenced this proceeding.
Let me explain why by reference to the provisions of the Taxation Administration Act 1953 (Cth) (“TAA”).
Under s.4 of the TAA, the Governor-General has power to appoint a Commissioner of Taxation and three Second Commissioners of Taxation. Section 7 of the TAA provides that there shall be such Deputy Commissioners of Taxation as are required. When suing to recover the payment of a tax-related liability, as defined, Division 255 of the TAA applied. Section 255–5 of the TAA provides that an amount of tax-related liability that is due and payable is a debt due to the Commonwealth, it is payable to the Commissioner and (among others) a Deputy Commissioner may sue in his or her official name in a court of competent jurisdiction to recover that amount of a tax-related liability.
In this case, pursuant to the authority conferred by s.255-5 of the TAA, a Deputy Commissioner suing in his official name commenced litigation in the County Court of Victoria in proceeding CI–12–02637. The Deputy Commissioner obtained a default judgment against
Mr Webb for $108,801.04 and that amount was a “tax-related liability”, being a pecuniary liability to the Commonwealth arising directly under a taxation law for the purpose of s.255-1 of the TAA.
In my judgment, contrary to the assertion advanced by Mr Webb,
the applicant had statutory authority –
a)to commence the County Court proceeding and enter default judgment in that proceeding;
b)to issue the bankruptcy notice;
c)to rely upon the act of bankruptcy committed by Mr Webb’s failure to comply with the bankruptcy notice within the time stipulated; and
d)to petition the FCCA with a view to it making a sequestration order against Mr Webb.
[40] [1999] HCA 56.
[36] [1999] FCA 1580.
Unsurprisingly, the Deputy Commissioner was the named party in the decision handed down by Cowdroy J in Simandl. So was the
Deputy Commissioner the relevant and proper party in
Deputy Commissioner of Taxation v Levick[36](“Levick”), Dooney
v Henry[37] (“Dooney”), Daniels v Deputy Commissioner of Taxation[38] (“Daniels”), McKewins Hairdressing & Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation[39] (“McKewins”),
Helljay Investments Pty Ltd v Deputy Commissioner of Taxation[40](“Helljay”) and Young v Deputy Commissioner of Taxation (“Young”).[41]
[41] [1998] HCA 77.
[37] [2000] HCA 44.
[38] [2007] SASC 114.
[39] [2000] HCA 27.
In view of the provisions of s.255-5(2) of the TAA, it would be surprising if the Commissioner or a Deputy Commissioner of Taxation sued in any name other than in his or her official name.
In my view ground 2 failed.
Third ground – ATO is not a legal entity
This argument I accept. But the argument is irrelevant to this case because the petitioning creditor was the Deputy Commissioner of Taxation and not the ATO.
The status of the ATO as a legal entity has been the subject of a number of authoritative pronouncements. In Levick, Hill J said that the ATO does not exist for legal purposes.
In the High Court, Callinan J held in Dooney that the ATO is not a legal personality.
In the Supreme Court of South Australia, David J in Daniels held that the ATO was not a legal entity. David J pointed out that the
Deputy Commissioner of Taxation has the power and authority to institute a proceeding to recover tax-related liabilities under s.255-5 of the TAA.
Other authorities are to the same effect including Miller v Chapman[42] and Deputy Commissioner of Taxation v Vats.[43]
[42] [2001] FCA 105.
[43] [2014] FCCA 1744.
To my mind, this ground missed the point because the current party with statutory authority to sue in fact brought the proceeding in the County Court. That party also petitioned this court for the sequestration order of Mr Webb’s estate. The status of the ATO as a separate legal entity had nothing to do with this case.
Fourth ground – the ITAA was not lawfully enacted
Over many years, many resourceful yet ultimately misguided litigants have endeavoured to obtain rulings from various courts in Australia about the validity of the ITAA. All have failed. Mr Webb was yet another who sought such a ruling.
The point is untenable.
In Joose & Anor v Australian Securities and Investments Commission[44] (“Joose”), Hayne J dealt with five separate cases that raised similar issues. In one of those five cases, Young, various pieces of legislation of a taxation nature put in issue the 1997 iteration of the ITAA. It was argued in all five proceedings by each applicant that an unremedied, perhaps irremediable break in sovereignty in Australia supported the conclusion that (relevantly here) the ITAA passed by the Parliament of the Commonwealth was invalid.
[44] [1998] HCA 77.
His Honour rejected the contention. His Honour held that clause 5 of the Constitution answered the point. His Honour held that clause 5 stated that all laws made by the Parliament of the Commonwealth under the Constitution “shall be binding on the courts, judges, and the people of every state and of every part of the Commonwealth”.
So far as the Royal assent point was concerned, Hayne J held that ss.58, 59 and 60 of the Constitution addressed the way Royal assent was given to bills. Those sections provided that the Governor-General declared that he or she assented to the bill in the Queen’s name.
In relation to the legislation then before the court, including the ITAA, Hayne J said that nothing in the case suggested that proper assent had not been given. In the result, his Honour refused to declare the ITAA constitutionally invalid.
In Helljay, Hayne J had occasion to revisit his Honour’s decision in Joose in the context of an attack on the constitutional validity of the 1997 iteration of the ITAA. Many of the arguments in that case
(as recorded in the amended notice of motion in that case) resembled aspects of Mr Webb’s contentions in this case. Hayne J referred to the “breadth of the attack” then recited 19 separate bases including –
a)
a request to rule on the domestic sovereignty of the
Royal Commission into the Constitution, 1927;
b)a request to rule that sovereignty of the people of Australia was the only foundation of law within the Commonwealth; and
c)the ITAA was ultra vires,
and others.
Other, more fanciful claims were made in the applicant’s amended notice of motion in that case.
Hayne J held that none of those contentions were arguable. His Honour held that questions of alleged invalidity, especially of the ITAA, were determined by clause 5 of the Constitution and his Honour repeated what his Honour held in Joose on point.
[45] [1999] FCA 1580 at [33].
In more strident and less charitable terms, in Levick Hill J described the argument that the 1936 iteration of the ITAA being invalid was
“quite without merit”[45]and that it “may be thought to be bizarre”.[46] Hill J held that the sovereign (at the time, Edward VIII) in whose name the Governor-General assented to the enactment of the ITTA, was the King and that it did not matter whether by the date the
Governor-General gave his assent to the enactment of the ITAA
King Edward VIII had been crowned. Hill J held that the ITAA was valid.
[46] [1999] FCA 1580 at [26].
In McKewins, Gummow J dealt with an argument concerning the constitutional validity of the 1936 iteration of the ITAA. His Honour approved of the comments of Hill J in Levick and of the observations of Hayne J in Helljay and rejected the argument about invalidity.
In Daniels, David J did likewise.
In view of the foregoing between paragraphs 65 and 75, the weight of authority is overwhelmingly against Mr Webb on this point. It cannot be sensibly contended, whether on the ground argued by Mr Webb or at all, that the ITAA is invalid as a matter of constitutional law.
Turning more specifically to Mr Webb’s argument, he said the ITAA did not have a proclamation certificate. That argument overlooked entirely s.58 of the Constitution. That section required the
Governor-General to give Royal assent so as to turn a bill into law. It is worth observing that proof is not required in a proceeding in a court that the act was formerly assented to. That is the import of s.15ZB(1)(a) of the Legislation Act 2003 (Cth).
[51] [2013] FCAFC 84.
One other point emerged. To say as Mr Webb said that the ITAA was relevant at all missed the point in relation to the bankruptcy petition. Under the Act, a petitioning creditor that meets the requirements of s.52 of the Act has a prime facie right to a sequestration order.
The authorities on that issue are of considerable veneration including
Cain v Whyte,[47] Rozenbes v Kronhill,[48] Deputy Commissioner of Taxationv Cumins,[49] Russell v Polites Investments Pty Ltd,[50]
Clapham v Commonwealth Bank of Australia[51]and Endresz v Australian Securities and Investments Commission (No 2).[52]
[52] [2015] FCAFC 33.
[47] (1933) 48 CLR 639.
[48] (1956) 95 CLR 407.
[49] (2008) 70 ATR 855.
[50] [2012] FCA 11.
The fourth ground advanced by Mr Webb failed.
Fifth ground – a right to a jury trial
In annexure four of his affidavit made 22 March 2017, Mr Webb asserted that he enjoyed a right to a trial before a jury. His assertion was unspecific. Self-evidently, this case does not involve a trial nor is it a criminal case.
Insofar as a jury trial is concerned, s.80 of the Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. It was held as early as 1928 that s.80 of the Constitution relates only to trials on indictment. The High Court said as much in R v Archdall & Roskruge; Ex parte Carrigan.[53]
[53] (1928) 41 CLR 128.
This case does not involve crime, nor an indictable offence. It involves a creditor’s claim for sequestration order. Section 80 of the Constitution has no application. This ground was misconceived.
Sixth ground – a challenge to the FCCA’s jurisdiction
On the day of the hearing before me, Mr Webb was not in court when the case was called. He arrived in a nonchalant manner about
10 minutes late. He did not announce his appearance.
Almost immediately he asked whether he could ask me a question.
I said he could. He asked whether I was a Chapter III judge. I said I was.
That debate did not go near the point he sought to make in annexure four of his affidavit made 22 March 2017. In that annexure Mr Webb said that all acts of Parliament since 1919, with the signing of the Treaty of Versailles, have not been lawfully enacted.
In large measure, Hayne J addressed that point in Joose, specifically about the Treaty of Versailles. His Honour rejected the point saying that s.5 of the Constitution resolved the matter. It would be absurd for me to hold that since 1919 no law of the Commonwealth Parliament was valid. I reject the argument.
A Constitutional point?
Mr Webb was keen to demonstrate that his contentions in this case raised constitutional matters warranting the giving of notices to the Federal Attorney-General under s.78B(1) of the Judiciary Act 1903 (Cth).
I do not agree
Only if the point is arguable is a court, under s.78B of the
Judiciary Act, duty-bound to not proceed until notice of the cause is given to the Attorney-General. So much was said by French J, then of the FCA, in Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd.[54] A duty to not proceed is not imposed and will not arise if the asserted constitutional point is frivolous or vexatious. In my view, there is real force in the submission of counsel for the applicant that Mr Webb’s arguments are manifestly unarguable or hopelessly untenable, nor do they raise a constitutional point of interpretation, as was said in Re Culleton.[55]
[54] (1999) 95 FCR 292.
[55] [2017] HCA 3.
Conclusion
None of the grounds advanced by Mr Webb have been made out.
No basis exists for concluding that the registrar was anything but correct when making the sequestration order.
Orders
I dismiss Mr Webb’s application for review.
I affirm the sequestration order made on 10 November 2016.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 30 May 2017
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