Deputy Commissioner of Taxation v Wolski - [2024] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   DEPUTY COMMISSIONER OF TAXATION -v- WOLSKI [2024] WADC 78
CORAM:   REGISTRAR NAIRN
HEARD:   14 AUGUST 2024
DELIVERED          :   19 SEPTEMBER 2024
FILE NO/S:   CIV 3181 of 2023
BETWEEN:   DEPUTY COMMISSIONER OF TAXATION
Plaintiff
AND
ZYGMUND WOLSKI
Defendant

Catchwords:

Summary judgment - Self-represented defendant - Tax-related liability - Director's liability in respect of a company's PAYG withholding obligations - Defences available to a director - Estoppel - Standing of the Deputy Commissioner of Taxation to sue - Whether an arguable defence made out

Legislation:

Administration Act 1903 (WA), s 17, s 17A
District Court of Western Australia Act 1969 (WA), s 50
Judiciary Act 1903 (Cth), s 78B
Taxation Administration Act 1953 (Cth), s 255-5 of sch 1, s 269-15 of sch 1, s 269-20 of sch 1, s 269-35 of sch 1

Result:

Application for summary judgment granted

Representation:

Counsel:

Plaintiff	:	Ms V E Long-Droppert
Defendant	:	In person

Solicitors:

Plaintiff	:	Australian Taxation Office - Legal Services Branch
Defendant	:	Not applicable

Case(s) referred to in decision(s):

Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd [2001] FCA 1062
Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529
Canty v Deputy Commissioner of Taxation [2005] NSWCA 84; (2005) 63 NSWLR 152
Cappelleri v Cappelleri [2024] VSCA 173
Carbone as Trustee for the S & N Carbone Family Trust v Mills [2019] NSWCA 15
Chinalink Asia Holdings Ltd v Invitrocue Ltd [2024] WASC 263
Conroy v Deputy Commissioner of Taxation [2005] QSC 206
Deputy Commissioner of Taxation v Coco [2003] QSC 119
Deputy Commissioner of Taxation v Levick [1999] FCA 1580
Deputy Commissioner of Taxation v Roget [No 2] [2014] WADC 25
Deputy Commissioner of Taxation v Woodhams [2000] HCA 10; (2000) 199 CLR 370, 376
Dooney v Henry [2000] HCA 44; (2000) 174 ALR 41; (2000) 74 ALJR 1289; (2000) 35 ACSR 155; (2000) 21 Leg Rep 2; 45 ATR 113
Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch)
Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 198 ALR 250; (2003) 77 ALJR 1195; (2003) 24 Leg Rep 20; (2003) 53 ATR 101
In the matter of Glenevan Pty Ltd [2015] NSWSC 201
Kavanagh v Londy [2024] QCA 140
Kelly v Fiander [2024] WASC 275
Kiley v McMahon [2024] VSC 228
Miller v Deputy Commissioner of Taxation [2022] WASCA 126
Moeliker v Chapman B8/2000 [2000] HCATrans 490
Nutrien AG Solutions Fertiliser Pty Ltd v Fremantle Port Authority [2024] WASC 178
Palmer [2023] VSCA 322
Pham v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1310
Planck v Planck [2024] FedCFamC1F 341
Ponnambalam v The State of Western Australia [2013] WASCA 101
Quarries Pty Ltd v J J & L L Reardon Pty Ltd [2014] NSWSC 1175
Roche v Deputy Commissioner of Taxation [2014] WASC 222
Roche v Deputy Commissioner of Taxation [2015] WASCA 196
Snell v Deputy Commissioner of Taxation [2020] NSWCA 29
Stefan v McLachlan [2023] VSC 501; (2023) 105 MVR 214
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Webb v Deputy Commissioner of Taxation [2017] FCA 1520
Westpac Banking Corporation v Figliomeni [2024] WASC 292

REGISTRAR NAIRN:

The plaintiff's claim against the defendant (Mr Wolski) is for the recovery of director penalties under div 269 of sch 1 to the Taxation Administration Act 1953 (Cth) (TAA) in the sum of $502,443.91.[1]
[1] Statement of claim, pars 4 - 11.
By chamber summons dated 28 March 2024, the plaintiff applies for summary judgment against Mr Wolski. The application is made pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (RSC).
The application was heard before me at a special appointment on 14 August 2024.
Mr Wolski appeared in person. In broad terms, Mr Wolski contended that he had three arguable defences to the plaintiff's claim which ought to be left for determination at trial:
(a)first, an arguable defence under s 269-35(2) of sch 1 to the TAA on the basis that Mr Wolski had undertaken certain 'reasonable steps' as required under that section;
(b)secondly, an arguable defence on the basis that the plaintiff ought to be estopped from pursuing its claim in the action; and
(c)thirdly, an arguable defence on the basis that there are certain defects in the plaintiff's standing and the court's jurisdiction such that Mr Wolski could not be found to be liable to the plaintiff.
For the reasons set out in detail below, I consider that Mr Wolski has no arguable defence to the plaintiff's claim, and that the plaintiff is entitled to summary judgment.

Legal principles relevant to a summary judgment application

The general principles of summary judgment applications were not the subject of any argument and are well settled. A convenient recent statement of the relevant principles is contained in Chinalink Asia Holdings Ltd v Invitrocue Ltd:[2]
8An application under RSC O 14 must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.
9[….] If it is not possible to say, on the whole of the material, that there is no question to be tried, the defendant should have the opportunity to defend the action.
10As the Court of Appeal said in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
11The plaintiff bears the legal burden of persuading the court that the claim is a good one and there is no defence to it. If the plaintiff's affidavit in support of an application makes out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or another reason there ought to be a trial.
12A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence. Where an issue or question is raised, summary judgment should only be granted in favour of the applicant where they can demonstrate that the question will certainly be resolved in their favour.
[2] Chinalink Asia Holdings Ltd v Invitrocue Ltd [2024] WASC 263 [8] - [12] (Master Russell) (footnotes omitted).

Timing of the application

I note that the plaintiff's application was brought within the period of time permitted by the court, specifically via the orders made on 13 March 2024. As such, no question of leave (to bring the application out of time) arises.

The written materials

The application was supported by the following affidavits:
(a)affidavit of Craig Mitchell affirmed 28 March 2024 (Mitchell affidavit);
(b)affidavit of service of Barbara Ann Martin affirmed 29 April 2024 (Martin affidavit);
(c)affidavit of Victoria Elizabeth Vuori affirmed 13 June 2024 (Vuori affidavit); and
(d)affidavit of Arulkumaran Jeganathan sworn 1 July 2024 (Jeganathan affidavit).
The plaintiff also filed outlines of submissions on 29 April 2024 and 14 June 2024.
Mr Wolski also filed an affidavit in opposition to the application, sworn 16 May 2024 (Wolski affidavit), and an outline of submissions on 30 May 2024.
Mr Wolski also filed a defence on 29 November 2023.

The statutory regime upon which the plaintiff's claim is based

Mr Wolski was at all material times a director of Mint Investments Pty Ltd (the Company).
The plaintiff's claim arises out of the Company's failure to meet its Pay As You Go (PAYG) obligations under div 12 and div 16‑B of sch 1 to the TAA, specifically to pay amounts withheld under div 12 to the Commissioner in accordance with div 16-B.
The liability for a director in respect of that failure is addressed by div 269 of sch 1 to the TAA, which has been conveniently summarised in the following terms:[3]
The Commissioner's claim was made under div 269 of sch 1 to the Taxation Administration Act 1953 (Cth) (div 269). Section 269-15 of div 269 relevantly imposes an obligation on directors of a company to ensure that the company either meets its PAYG obligations or is promptly placed into administration or liquidation. Section 269-20 of div 269 imposes a penalty on directors for breach of that obligation equal to the unpaid amount of the company's liability. [….]
[3] Miller v Deputy Commissioner of Taxation [2022] WASCA 126 [4]. See also Roche v Deputy Commissioner of Taxation [2015] WASCA 196 [24] - [28].
The purpose of the statutory regime is to '… protect the revenue, by making directors of non‑remitting corporate employers liable to penalties equivalent to the amounts which the corporation fails to remit'.[4]
[4] Snell v Deputy Commissioner of Taxation [2020] NSWCA 29 [20], applying Deputy Commissioner of Taxation v Woodhams[2000] HCA 10 [13]; (2000) 199 CLR 370, 376.

Prima facie case made out

For the reasons that follow, I find that the plaintiff has made out a prima facie case that its claim is a good one and there is no defence to it.
I am satisfied that the application, as required by O 14 r 2(1) RSC, has been supported by affidavit stating the deponent's belief there is no defence to the claim.[5]
[5] For deposition that there is no defence to the claim, see Mitchell affidavit, par 24; Jeganathan affidavit, par 7.
Further, I am satisfied that the application, as also required by O 14 r 2(1) RSC, has been supported by affidavit evidence which verifies the facts upon which the plaintiff's claim is based.
The plaintiff's claim is articulated in a statement of claim filed with the writ on 30 June 2023.
By par 1, the plaintiff sets out the entitlement of a Deputy Commissioner of Taxation to sue to recover tax‑related liabilities pursuant to s 255-5(2) of sch 1 to the TAA. This is admitted by Mr Wolski's defence.[6]
[6] Defence, par 2.
In this regard, I accept the plaintiff's submissions that the plaintiff is granted certain procedural advantages when seeking to enforce the statutory regime. Relevantly:
•By s 350-20 of sch 1 to the TAA, in a proceeding to recover an amount of a tax‑related liability, a statement or averment about a matter in the plaintiff's claim involving a matter of fact is prima facie evidence of that fact.
•By s 350-10(3) of sch 1 to the TAA, the production of a certificate that is signed by a Deputy Commissioner that states (from a time specified in the certificate) that an amount was payable under a taxation law is prima facie evidence that the said amount is payable from that time and that the particulars stated in the certificate are correct.
Paragraphs 2 and 3 plead the material facts of the Company's existence under the Corporations Act2001 (Cth), and Mr Wolski's role as a director at all relevant times. These pleas are admitted by Mr Wolski.[7]
[7] Defence, par 2; Wolski affidavit, par 5.
Paragraph 4 pleads that the Company withheld amounts under div 12 in sch 1 to the TAA but failed to meet its obligations under div 16-B in sch 1 to the TAA to pay each amount withheld to the Commissioner of Taxation (Commissioner). In other words, the Company failed to meet the relevant PAYG obligation. This plea is also admitted.[8]
[8] Defence, par 3.
Paragraph 5 provides particulars of the relevant withheld amounts, including the due day by which each of those relevant withheld amounts was to be paid to the Commissioner. While the particulars are not admitted on the pleadings, the basis of them is verified by affidavit,[9] and Mr Wolski made no attempt to challenge these particulars.
[9] Mitchell affidavit, pars 8 - 10.
Paragraph 6 sets out, in substance, that at the end of the day on which the relevant amount withheld was due to be paid to the Commissioner (due day), the Company's directors remained under an obligation under s 269‑15 in sch 1 to the TAA to cause the Company to comply with its obligation under div 16-B in sch 1 to the TAA. This is also admitted.[10]
[10] Defence, par 4.
Paragraph 7 pleads that, at or before the due day, Mr Wolski was under the s 269-15 obligation by virtue of him being a director of the Company. This plea is also admitted.[11]
[11] Defence, par 5.
Paragraph 8 pleads in effect that the Company's total relevant liability was reduced to a figure of $502,443.91 to account for receipt by the Commissioner of the sum of $36,517.09. While not admitted, Mr Wolski offered no contrary position, and I consider that the factual elements of the plea have been adequately verified by the plaintiff.[12]
[12] Mitchell affidavit, par 10. I also note that the aggregate liability figure of $502,443.91 is further supported by the Mitchell affidavit, pars 20, 21 and 22 and the evidentiary certified addressed in these reasons.
Paragraph 9 pleads that, in respect of the various amounts withheld, by operation of s 269-20(1), s 269‑20(2) and s 269-20(5) of sch 1 to the TAA, Mr Wolski became liable to pay a penalty equivalent to the unpaid value of such amounts by the end of the due day applicable to each amount.
Paragraph 10 pleads that the unpaid amount of each penalty is a tax‑related liability within the meaning of s 255-1 of sch 1 to the TAA, which is payable to the Commissioner under s 255‑5 of sch 1 to the TAA.
Finally, par 11 pleads in effect that Mr Wolski is liable for penalties in the total sum of $502,443.91.
While pars 9, 10 and 11 are denied by Mr Wolski,[13] Mr Wolski has offered no basis for such denials beyond the grounds of defence which I examine further below. At any rate, I am satisfied that pars 9 and 10 accurately set out the manner in which the TAA operates in the context of the plaintiff's claim.
[13] Defence, pars 7 - 9.
In further support of its claim the plaintiff has produced evidentiary certificates from a Deputy Commissioner of Taxation dated 27 March 2024 and 1 July 2024 respectively (issued under s 350‑10(3) of sch 1 to the TAA).[14]
[14] Mitchell affidavit, attachment 'CM-5'; Jeganathan affidavit, attachment 'AJ-1'.
These certificates indicate that as at 27 March 2024 and 1 July 2024 respectively an amount of $502,443.91 was payable by Mr Wolski under a taxation law to the Commissioner of Taxation in respect of the tax‑related liabilities referred to in the certificate.
I accept that these certificates have the evidentiary effect provided for by s 350‑10(3).
Further, I am satisfied on the unchallenged evidence before me that Mr Wolski was served with the relevant director penalty notices (DPNs), which are a precondition to the plaintiff's ability to pursue the claim.[15]
[15] Mitchell affidavit, pars 13 and 16; Martin affidavit. Further, Mr Wolski accepts he was served with the relevant penalty notices: Wolski affidavit, pars 32 and 34.

Whether there is any arguable defence to the claim

The plaintiff having made out a prima facie case, the evidentiary burden passes to Mr Wolski to show there is an arguable defence or another reason there ought to be a trial.
In opposing the plaintiff's application, Mr Wolski raised three broad arguments which I address in turn below.

Mr Wolski's reasonable steps argument

The argument and the evidence in support

Mr Wolski's first argument in opposition to the application is that he is entitled to rely on s 269-35(2) of sch 1 to the TAA, which in substance provide a director with a defence to a penalty for unpaid tax if the director takes 'all reasonable steps' to do certain things (for ease of reference I shall refer to this as the 'reasonable steps argument').
At the relevant time, s 269‑35(2) of sch 1 to the TAA provided that the director will not be liable to penalty where any of the following circumstances apply:
(a)the director took all reasonable steps to ensure that the directors caused the company (to which the penalty relates) to comply with its obligation (s 269‑35(2)(a)(i));
(b)the director took all reasonable steps to ensure the directors caused an administrator to be appointed to the company under the relevant provisions of the Corporations Act 2001 (Cth) (s 269‑35(2)(a)(ii));
(c)the director took all reasonable steps to ensure the directors caused the company to be begun to be wound up (s 269‑35(2)(a)(iii)); or
(d)there were no reasonable steps the director could have taken to ensure any of the above things happened (s 269‑35(2)(b)).
In his written submissions, Mr Wolski submits that he 'took all reasonable steps to ensure that the liability was met'.[16] I understand the liability he is referring to be the Company's obligation referred to s 269‑35(2)(a)(i) and being the Company's obligations under div 16‑B to pay withheld amounts to the Commissioner (see s 269-5(a)(i)).
[16] Wolski submissions filed 30 May 2024, par 3.
The reasonable steps identified by Mr Wolski are as follows:
(a)employing an external bookkeeper to undertake the accounting obligations of the Company;
(b)seeking information from that bookkeeper from time to time to ensure the bookkeeper had complied with all of the Company's obligations;
(c)appointing an external accountant once he became aware of any problem; and
(d)appointing an administrator to the Company once the extent of the shortfall became known.
It is necessary to consider the evidence in support of the reasonable steps argument.
Mr Wolski's affidavit asserts that in the period 2010 to 2012, there was a downturn in the mining industry which coincided with him spending time in the field, and during which time he was not involved in the day to day running of the Company's office.[17]
[17] Wolski affidavit, par 6.
Mr Wolski says that during that period he relied on the advice of the Company's external bookkeeper to ensure that the Company complied with its taxation obligations from time to time.[18]
[18] Wolski affidavit, par 7.
Commencing in or about February 2011, Mr Wolski says attempted to obtain 'specific information' but says this was delayed due to the bookkeeper's ill health.[19]
[19] Wolski affidavit, par 8.
Mr Wolski says in September 2011 he 'demanded the accounts' and was 'overwhelmed with the total amount outstanding'.[20]
[20] Wolski affidavit, par 8.
Mr Wolski asserts that as a result of the September 2011 discovery of the 'deficiencies', he appointed a firm of accountants to investigate the Company's affairs and liaise with the bookkeeper.[21]
[21] Wolski affidavit, par 9.
Mr Wolski further says that in the period September 2011 to September 2012, this investigation in effect continued, and Mr Wolski was consulted in that process. By about September 2012, Mr Wolski says he 'appreciated the extent of the problem in [the bookkeeper's work]' and, based on advice from the accountants, the Company entered voluntary administration on 12 September 2012.[22]
[22] Wolski affidavit, pars 10 - 13.
Mr Wolski goes on to assert that at a point in time (which is not entirely clear given ambiguity in the affidavit, but which I infer to be at a point time shortly before the Company was placed in administration, being in or about August 2012):
(a)Mr Wolski understood that all reporting obligations as to the relevant taxation obligations of the Company had been or were being complied with;
(b)Mr Wolski understood that that all liabilities owed by the Company as at that point in time (including the taxation liabilities that underpin the Commissioner's claim) had been paid; and
(c)Mr Wolski believed on reasonable grounds that the Company was solvent and there was no reason to appoint an administrator or otherwise take steps to wind up the Company.[23]
[23] Wolski affidavit, pars 14 - 16.

Mr Wolski then goes on to assert that, following Company entering administration (and shortly thereafter liquidation) it was not within his power to ensure that the Company complied with its taxation obligations.[24]
[24] Wolski affidavit, pars 17 - 21.
I note that Mr Wolski has not adduced any evidence from either the bookkeeper or the external accountant to corroborate or supplement his account.

The plaintiff's submissions on the reasonable steps argument

The plaintiff's submissions filed 29 April 2024 set out the legal principles relevant to Mr Wolski's reasonable steps argument. Mr Wolski did not contest any of those principles.
The plaintiff's responsive submissions filed 14 June 2024 address whether the evidence of Mr Wolski gives rise to an arguable s 269‑35(2) defence. In doing so, the plaintiff draws an analogy between the facts in this case, and the facts of Roche v Deputy Commissioner of Taxation (Roche), in which Master Sanderson found that there was no arguable defence.[25]

Disposition

[25] Roche v Deputy Commissioner of Taxation [2014] WASC 222 (Roche). Upheld on appeal in Roche v Deputy Commissioner of Taxation [2015] WASCA 196.

Consistent with the plaintiff's written submissions, the relevant principles to a s 269-35(2) defence are as follows:
(a)What is reasonable for the purposes of s 269-35(2) is an objective test, and specifically the director must prove that he or she took all steps which were reasonable having regard to what the director knew or ought to have known.[26]
(b)Compliance with s 269‑35(2) requires the director to have taken reasonable steps to ensure that one of the three alternative events (payment, appointment of an administrator, or winding up) happened. The director is only relieved from taking reasonable steps to bring about the relevant event where the director demonstrates there were no reasonable steps that available to the director. Otherwise, the director must take all reasonable steps to ensure the relevant event happened.[27]
(c)The director's obligation to take reasonable steps commences on the 'initial day' in s 269‑10, and it is necessary for the director to show that reasonable steps were taken for the entire period during which the director was under the relevant obligation.[28]
(d)A director is under a continuing obligation to undertake such enquiries as are necessary to ensure that the company's tax obligations are discharged and cannot take advantage of any ignorance resulting from a failure to enquire.[29]
[26] Roche v Deputy Commissioner of Taxation [2015] WASCA 196 [29].
[27] Roche v Deputy Commissioner of Taxation [2015] WASCA 196 [35], [40].
[28] Canty v Deputy Commissioner of Taxation[2005] NSWCA 84 [45]; (2005) 63 NSWLR 152; Deputy Commissioner of Taxation v Coco [2003] QSC 119 [44], [49].
[29] Roche v Deputy Commissioner of Taxation [2015] WASCA 196 [43].
Mr Wolski's evidence is inadequate to give rise to an arguable defence under s 269‑35(2) of sch 1 to the TAA.
There is no evidence that Mr Wolski was positively misled by any other person as to the Company's financial position or state of discharge of its taxation obligations.
At its highest, Mr Wolski's case was that his bookkeeper delayed in providing him relevant information in the period from about February to September of 2011. However, if there was delay on the part of the bookkeeper, then it was incumbent on Mr Wolski to take steps (beyond merely waiting for the bookkeeper) to ascertain the true state of affairs. There is no evidence that Mr Wolski took any such steps, at least until September 2011 when the external accounting firm was engaged.
From that point, it is not adequately explained what happened in the period leading up to the decision to appoint administrators, taken in or about August 2012. There is no evidence that Mr Wolski was taking any reasonable steps as contemplated by s 269‑35(2); rather he seems to have simply to have been 'information gathering' in the period February 2011 to August 2012.
Notwithstanding Mr Wolski's assertions referred to in [49] above, it is apparent Mr Wolski knew something was amiss in the taxation affairs of the Company well before August 2012. Aside from asking questions of his bookkeeper (on his evidence) as early as February 2011, at least by September 2011 (when he saw fit to appoint external accountants) he was 'overwhelmed with the total amount outstanding'.[30] In that factual context, Mr Wolski needed to do more than merely gather information.
[30] Wolski affidavit, par 8.
I accept the plaintiff's submission that the factual scenario here is broadly similar to that in Roche.
In the circumstances, I find that there is no arguable defence available to Mr Wolski under s 269‑35(2) of sch 1 to the TAA.

Other matters arising under the Taxation Administration Act 1953 (Cth)

I have also considered whether there is an arguable defence arising under s 269‑35(1) of sch 1 to the TAA.
Section 269‑35(1) provides a director with an alternative defence (to a penalty under div 269-A) where good reason is shown as to why the director was unable to participate in the management of the company.
Although Mr Wolski did not appear to expressly advance that particular defence in his oral or written submissions, I am cognisant of the fact that Mr Wolski is self‑represented, and that the plaintiff made submissions about the defence.[31]
[31] Plaintiff's submissions filed 14 June 2024, pars 7 - 10.
I find that no arguable defence arises under s 269-35(1) substantially for the reasons submitted by the plaintiff.
While there might have been times that Mr Wolski was focused on things other than the management of the Company's affairs, the evidence does not demonstrate an arguable case that Mr Wolski was unable to participate in the management of the Company.

Mr Wolski's estoppel argument

The argument and the evidence in support

Mr Wolski's second argument in opposition to the application is that the plaintiff is estopped from pursuing its claim.
The argument emerges from Mr Wolski's submissions filed 30 May 2024.[32] Attached to the submissions is an extract of a note on the law of estoppel, referencing both common law estoppel (including estoppel by deed, by convention and representation) and equitable estoppel. Mr Wolski did not make any substantive oral submissions in support of the written submissions.
[32] Wolski submissions, par 4.
In support of the estoppel argument, Mr Wolski's submissions refer to that part of Mr Wolski's affidavit which details the following matters:
(a)the plaintiff was present (by telephone) at creditor's meetings of the Company but did not mention the debt the subject of the plaintiff's claim;[33]
(b)prior to 2018, the plaintiff never contacted Mr Wolski about the debt;[34]
(c)a settlement deed was signed on 24 December 2015 which contained a clause barring the bringing of further claims;[35]
(d)Mr Wolski would not have entered the deed had he known that he could be pursued by the plaintiff in the manner in which it now pursues him in these proceedings;[36] and
(e)upon being issued with the penalty notices, Mr Wolski wrote to the plaintiff in respect of its claim in September 2018 and July 2022 but did not receive a response.[37]

The plaintiff's submissions and evidence on the estoppel argument

[33] Wolski affidavit, par 25.

[34] Wolski affidavit, par 31.

[35] Wolski affidavit, pars 26 - 27.

[36] Wolski affidavit, par 28.

[37] Wolski affidavit, pars 35 - 36.

In response to Mr Wolski's estoppel argument, the plaintiff filed responsive submissions on 14 June 2024, as well as the Vuori affidavit.
The Vuori affidavit evidences that the plaintiff's office was in contact with the liquidators of the Company in respect of its taxation liabilities and submitted a formal proof of debt to the Company's liquidator which resulted in a dividend being declared in favour of the plaintiff in 2017.

Disposition

It is not entirely clear which species of estoppel Mr Wolski seeks to advance. I shall address each potentially relevant species in turn. Based on the materials before me, none are reasonably arguable.

Equitable promissory estoppel

The law of equitable promissory estoppel has been recently summarised in the decision of Strk J in Nutrien AG Solutions Fertiliser Pty Ltd v Fremantle Port Authority.[38] I respectfully adopt this summary and for the sake of brevity I do not restate it here.
[38] Nutrien AG Solutions Fertiliser Pty Ltd v Fremantle Port Authority [2024] WASC 178 [127] - [137].
Mr Wolski has failed to make out an arguable equitable estoppel.
The evidence before me does not suggest that there is any conduct, including any express or implied representation, on the part of the plaintiff or the Commissioner such as would give rise to an equitable promissory estoppel.
I contrast this case to that of Deputy Commissioner of Taxation v Roget [No 2][39] where there were positive statements made by Australian Taxation Office (ATO) staff such as to give rise to an arguable estoppel defence.[40]
[39] Deputy Commissioner of Taxation v Roget[No 2] [2014] WADC 25.
[40] Deputy Commissioner of Taxation v Roget[No 2] [85] - [98].
Further the evidence falls short of making out any detrimental reliance by Mr Wolski on the conduct of the plaintiff.
As to the settlement deed referred to by Mr Wolski, Mr Wolski asserts that he would not have entered that settlement deed had he appreciated he would be pursued personally by the plaintiff (as it has done).
Even assuming for the purposes of this application that this is true, Mr Wolski has not demonstrated that this is due to any actionable conduct on the part of the plaintiff. Put another way, Mr Wolski did not rely on the conduct of the plaintiff in entering that deed.
Further, it is not apparent to me that Mr Wolski suffered any relevant detriment in entering the deed. Generally, to establish a promissory equitable estoppel the detriment suffered must be a material or significant detriment or disadvantage, of such a character that it makes it unconscionable for the other party to resile from its representation.[41]
[41] Kavanagh v Londy [2024] QCA 140 [140] - [141] (Davis J).
I do not consider that merely to enter a deed can itself be sufficient of itself to evidence arguable detriment. While Mr Wolski identifies that the deed contained a claim barring clause (binding the parties to the deed),[42] Mr Wolski has not identified how he suffered from the deed, including by material loss of any opportunity.
[42] It was not clear whether Mr Wolski was separately contending that the barring clause in the settlement deed somehow precluded the plaintiff in these proceedings. To the extent that Mr Wolski seeks to make that contention, I do not consider it raises an arguable defence since the plaintiff was not a party to the deed, and the deed does not in its terms purport to compromise or bar the plaintiff's claim in this action.
Put another way, it is not apparent that Mr Wolski would be any better off had he not entered the deed, and Mr Wolski's affidavit does not assist in this regard.

Estoppel by acquiescence

I have also considered whether there is any arguable 'estoppel by acquiescence' or 'estoppel by inaction'. I do not understand this to be a separate species of estoppel, but it is not necessary that I resolve that matter for the purposes of dealing with the application.
Rather, I have considered whether, under any of the known species of estoppel, the facts adduced by Mr Wolski give rise an estoppel based on the inaction of the plaintiff.
I note that estoppel by acquiescence was recently addressed by the Victorian Court of Appeal in Cappelleri v Cappelleri.[43] In that case, the applicants sought to rely on another party's (Leonie's) knowing inaction and acquiescence with respect to a corporate share sale transfer in order to raise an estoppel preventing Leonie from challenging the legal efficacy of the transfer.
[43] Cappelleri v Cappelleri [2024] VSCA 173.
The estoppel was advanced by the applicants on two alternative bases.
The first basis was a particular application of estoppel principles in the context of shareholdings in a company, which is not presently relevant.[44]
[44] Cappelleri v Cappelleri [138] - [139]. The argument was in any event rejected: [144] - [147].
The second basis (which is presently relevant) was by reference to the decision in Waltons Stores (Interstate) Ltd v Maher[45] (Waltons Stores) which enunciated the principles of promissory equitable estoppel.[46] In Waltons Stores, Mason CJ and Wilson J's judgment referred to inaction being capable of constituting 'clear encouragement or inducement to the respondents to continue to act on the basis of the assumption which they had made'.[47] The argument of the applicants in Cappelleri v Cappelleri was that Leonie's silence and inaction in respect of the share transfer amounted to inaction such as would justify an estoppel.
[45] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387.
[46] Cappelleri v Cappelleri [140] - [141].
[47] Waltons Stores (407).
This argument was rejected by the Court of Appeal. The court observed that Mason CJ and Wilson J's judgment in Waltons Stores went on to detail that the appellant's conduct was more than mere inaction and amounted to unconscionable conduct. Specifically, it was found that:
(a)the appellant in Waltons Stores knew that the respondents were exposed to detriment by acting on the basis of a false assumption; and
(b)given that knowledge, it was unconscionable for the appellant to 'adopt a course of inaction which encouraged [the respondents] in the course they had adopted'.[48]
[48] Cappelleri v Cappelleri [148]; citing Waltons Stores (407) - (408) (Mason CJ & Wilson J).
The Court of Appeal in Cappelleri v Cappelleri refused the applicants leave to appeal given that the facts of that case were not in the same category.[49]
[49] Cappelleri v Cappelleri [149].
Returning to this case, I similarly consider that the conduct of the plaintiff does not fall into the category of a knowing inaction which has encouraged Mr Wolski to adopt or maintain a wrongful assumption.
Specifically, there is no evidence to demonstrate that the plaintiff knew that Mr Wolski had adopted any particular assumption, nor that the plaintiff knew or intended that Mr Wolski would act in any particular way. There is no element of unconscientious encouragement on the part of the plaintiff.
I also note I have already concluded above in the context of equitable promissory estoppel that the evidence does not show that Mr Wolski relied on the conduct of the plaintiff in entering the settlement deed.
Insofar as there was inaction on the part of the plaintiff after that time, including in not responding to Mr Wolski's letters of September 2018 and July 2022, there is no evidence that Mr Wolski relied on such inaction to his detriment.
Accordingly, there is no arguable estoppel arising out of inaction or acquiescence.

Estoppel by representation

The principles of estoppel by representation are conveniently stated by Sackville AJA in Carbone as Trustee for the S & N Carbone Family Trust v Mills.[50] Again, I respectfully adopt this summary without restating it.
[50] Carbone as Trustee for the S & N Carbone Family Trust v Mills [2019] NSWCA 15 [70] (Sackville AJA, Beazley P & Barrett AJA agreeing).
There is no reasonably arguable estoppel by representation defence here for similar reasons as to why there is no equitable estoppel defence.
I accept the plaintiff's submission that the plaintiff never represented that he would not seek payment of the Company's (or Mr Wolski's) taxation liability. There is no relevant representation made by the plaintiff to Mr Wolski at all.

Estoppel by convention

The principles of estoppel by convention were recently summarised in Quarries Pty Ltd v J J & L L Reardon Pty Ltd.[51] Again, I respectfully adopt that summary without restating it.
[51] Quarries Pty Ltd v J J & L L Reardon Pty Ltd [2014] NSWSC 1175 [62] - [63].
Here there is no arguable estoppel by convention since on the evidence before me there is no mutually adopted assumption between the parties that could give rise to a relevant estoppel. Mr Wolski's unilateral beliefs and assumptions are insufficient to found an estoppel of this kind.

Estoppel by deed

Any argument based on estoppel by deed is misconceived and bound to fail, since the plaintiff is not a party to any deed with Mr Wolski. This includes the deed which is annexed to Mr Wolski's affidavit.[52] At any rate, and unsurprisingly, the subject matter of the deed does not purport to deal with the liabilities which underpin the plaintiff's claim in this action.
[52] Wolski affidavit, attachment 'ZW3'.

Mr Wolski's no authority argument

This leaves for consideration Mr Wolski's third argument, namely that he has an arguable defence to the plaintiff's claim on the basis that there are certain defects in the plaintiff's standing and the court's jurisdiction such that Mr Wolski cannot be found to be liable to the plaintiff (no authority argument). The no authority argument was pressed both in the written materials and by oral submissions.
In fairness to Mr Wolski, it is appropriate I set out my understanding of Mr Wolski's no authority argument, which contains numerous elements.

Mr Wolski's arguments as articulated in the written materials

Mr Wolski's written articulation of the no authority argument in writing was by way of a 'submission by annexure'. Attached to each of his affidavit[53] and submissions[54] is what appears to be an article entitled 'Is the ATO Lawful?'. The two documents are similar but not identical. For convenience I shall refer to these documents as 'the article'.
[53] Wolski affidavit, attachment 'ZW6'.
[54] Wolski submissions filed 30 May 2024, attachment 'B'.
Mr Wolski deposes that he believes the 'ATO has no lawful authority to collect the debt' for the reasons set out in the article attached to his affidavit.
I have carefully considered the contents of the article, which are not clearly expressed. Doing the best I can, I identified a number of contentions advanced in the article, only some of which are of conceivable relevance to this case.

The contention as to the legal status of the Australian Taxation Office

The first contention is that the ATO is not a lawful entity and has no legal standing to take any action against a person.
The basis for this contention is that no Government Gazette to support the establishment of the ATO in 1973 has been produced, and that Justice Callinan has previously accepted that the ATO was not a legal entity.[55]
[55] The article references Moeliker v Chapman B8/2000 [2000] HCATrans 490 (24 August 2000), being a transcript of certain High Court proceedings before Callinan J.
At the outset it can be seen that this contention is irrelevant to the plaintiff's application. It is a Deputy Commissioner of Taxation, not the ATO, that is the named plaintiff in these proceedings. Moreover, Mr Wolski has expressly admitted in his defence that the plaintiff is entitled to sue to recover a tax‑related liability by virtue of s 255‑5(2) of sch 1 to the TAA.[56]
[56] Defence, par 2.
Further, the reference to Justice Callinan's (alleged) remarks in the article is inapt. The reference provided does not actually support Mr Wolski's contention as Justice Callinan did not appear to address the legal characterisation of the ATO at all on that occasion.
However, the plaintiff identified the decision of Justice Callinan in the Dooney v Henry[57] in which his Honour addressed the point directly, and stated:
6There then follows an allegation, purportedly supported by a number of particulars, which need not be repeated, that the Australian Taxation Office is a body without a legal existence.
7This last allegation, and the misconceived claim for relief in respect of it (prayer 5), can be immediately disposed of. The Australian Taxation Office is not a legal personality, the applicant does not contend that it is, and whether the Australian Taxation Office is, or is not a legal personality, is not a matter of the slightest relevance to any issue or efficacious remedy that might be available to the respondent.
[57] Dooney v Henry [2000] HCA 44 [6] - [7]; (2000) 174 ALR 41; (2000) 74 ALJR 1289; (2000) 35 ACSR 155; (2000) 21 Leg Rep 2; 45 ATR 113.

These observations are equally apt here, and underline the irrelevance of Mr Wolski's submission that the ATO does not exist.[58]
[58] See also Deputy Commissioner of Taxation v Levick [1999] FCA 1580 [22] (Hill J). For a more recent example of a taxpayer party raised a similar argument about the ATO's legal status without success, see Webb v Deputy Commissioner of Taxation [2017] FCA 1520.
If there is an issue of standing in this case, it is whether the plaintiff has standing - not the ATO. On that issue, I am comfortably satisfied that the plaintiff has standing to bring these proceedings ‑ indeed, so much is admitted on the pleadings.
Aside from such admission, I note that attacks on the standing of the Deputy Commissioner of Taxation to bring proceedings to enforce the taxation laws of the Commonwealth have proven fruitless in other cases.[59]
[59] For example, see Webb v Deputy Commissioner of Taxation. In that case, not only did the taxpayer seek to invoke the (irrelevant) argument that the ATO was not a legal entity, he also sought to argue that the Deputy Commissioner of Taxation had no standing. O'Callaghan J found that these arguments were 'self‑evidently misconceived' ([16] - [17]). See also Palmer [2023] VSCA 322, in which the appellant unsuccessfully sought to challenge the standing of the Deputy Commissioner of Taxation.
There is no arguable defence emerging from the matters raised in the article connected to the standing of the plaintiff.

The contention that Australian laws are invalid

The second contention raised by the article is that Australian laws are invalid, relevantly encompassing the taxation legislation upon which the plaintiff depends to sue.
The basis of this contention - as best as I can apprehend it from the article - is as follows:
(a)the validity of Australian taxation legislation depends on a valid appointment of the Governor‑General;
(b)following a hearing on 9 March 2004 (heard by Master Bowman), the Chancery Division of the High Court in London made a ruling on 25 June 2004 that Letters Patent, issued under the Great Seal of Australia, for the appointment of Governors‑General, have been issued incorrectly;
(c)as a result of this ruling, the Governor-General of Australia holds no executive power; and
(d)consequentially all current Australian laws purportedly assented to by the Governor‑General have been unlawfully issued and are invalid.
As this contention is necessarily dependent on an asserted legal precedent, I noted the decision of Lightman J in Fitzgibbon v HM Attorney General (Fitzgibbon).[60] As set out in the judgment, the procedural history of that matter was relevantly:
(a)the claimant, Mr Fitzgibbon, sought various declarations including that (in effect) the Great Seal of Australia had been used incorrectly, when the Great Seal of the United Kingdom ought to have been used, including when issuing Letters Patent in 1984 providing for the appointment of the Governor‑General;[61]
(b)as a result of the incorrect seal, the 1984 Letters Patent were invalid and from that point on all appointments of Governors‑General of Australia were invalid;[62]
(c)the Attorney-General applied to strike out the action and, in a reserved decision dated 25 June 2004, Master Bowman granted the application, following which leave was granted to Mr Fitzgibbon to appeal (which appeal Lightman J was ruling upon).
[60] Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch).
[61] Fitzgibbon [1].
[62] Fitzgibbon [4] - [10].
Pausing here, it can be immediately seen that this must be the same Chancery Division case referred to in the article, as it relates to a decision of Master Bowman made on 25 June 2004.
Tellingly, Lightman J dismissed the appeal from Master Bowman and in doing indicated that:
(a)the High Court of Justice had no jurisdiction to grant the relief being sought;[63] and
(b)even if the court had jurisdiction, the court would not grant the relief both as a matter of international comity[64] and because the decision would have no binding or practical effect on Australia or the operation of its laws.[65]
[63] Fitzgibbon [16].
[64] Fitzgibbon [18].
[65] Fitzgibbon [19].
Plainly, the article relied on by Mr Wolski is inaccurate and misleading in how it characterises the relevant authority.[66]
[66] I also note that a similarly misguided attempt to rely on the decision of Master Bowman was rejected by Brereton J in In the matter of Glenevan Pty Ltd [2015] NSWSC 201 [17] - [19].
At any rate, no arguable defence arises based on the contention that Australian laws are invalid (and the associated attack on the appointment of Governors‑General). This is for the following reasons:
(a)there is a general presumption of regularity forming part of Australian law, the effect of which is that it is incumbent on Mr Wolski to raise an evidentiary basis for a claim challenging the validity of legislation;[67]
(b)there is authority dismissing similar arguments attacking the validity of appointments of the Governor‑General,[68] including on the basis that the Great Seal of Australia was incorrectly used;[69]
(c)I am not aware of any legal authority supporting the contention that Her Majesty used the incorrect form of seal on any material occasion, or that (even if Her Majesty had done so) that such use would result in the invalidation of the instrument under seal;
(d)in Planck, it was held that the choice of Her Majesty to use any particular form of seal, including the Great Seal of Australia, was not impeachable, at least when done with Parliament's assent;[70]
(e)as observed in Fitzgibbon,[71] a complaint based about the use of a wrong form of seal is a complaint of form rather than substance, there being no doubt that Her Majesty intended to convey her assent to the sealed instrument; and
(f)as observed in Planck, the purpose of the use of a seal is not to grant legal force to an instrument, rather it is to signify the sovereign's assent to that instrument,[72] and by extension it is far from self-evident that a formal error in the application of the seal renders the underlying instrument invalid.

Other contentions

[67] Planck v Planck [2024] FedCFamC1F 341 (Riethmuller J) (Planck). See also Pham v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1310 [26] - [27] (Middleton J).

[68] For example, Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd [2001] FCA 1062 [27] (Goldberg J); Pham v Secretary, Department of Education, Employment and Workplace Relations [23] - [27] (Middleton J).

[69] Conroy v Deputy Commissioner of Taxation [2005] QSC 206 [9].

[70] Planck [17] (Riethmuller J).

[71] Fitzgibbon [14].

[72] Planck [17] (Riethmuller J).

The article relied on by Mr Wolski makes a variety of other contentions, including as to Australia's currency, the role and conduct of Australia's political parties, and the asserted criminality of the ATO.
I have been unable to discern the relevance of these contentions to the plaintiff's claim. It suffices to say that none of the contentions made in the article provide Mr Wolski with an arguable defence to the plaintiff's claim.

Mr Wolski's arguments as articulated in oral argument

Mr Wolski made a variety of oral submissions which substantially expanded the basis of the no authority argument.

Mr Wolski's statements in the course of his oral submissions

In this regard, Mr Wolski stated that:

•Mr Wolski appeared in court as a 'living being, a flesh and blood man'.[73]
[73] ts 11.
•Mr Wolski was not an artificial person, being the 'all caps letters name' to whom the director penalty notices were addressed.[74]
[74] ts 12.
•The plaintiff is a public servant and it is an illegal criminal act for a public servant to extract moneys from a living being (in this case, Mr Wolski himself).[75]
[75] ts 13, ts 20.
•The plaintiff, being a Deputy Commissioner of Taxation, is a corporation, and as such has no jurisdiction over Mr Wolski's living being.[76]
•Mr Wolski was acting in the 'capacity as executive administrator of the estate of person Zygmund Wolski created by the all caps birth certificate owned by the State'.[77] In that capacity, and based on a power granted to Mr Wolski in s 17 of the 'Western Australian Administration Act', Mr Wolski was appointing the plaintiff as a trustee of the Zygmund Wolski estate with power to 'execute the estate and discharge any encumbrances before the court'.[78]
•The veracity of the DPN depended on the validity of the Australian Constitution. The 'Australian Constitution is a corporation. It is UNIDROIT and was started in 1973. It has no jurisdiction over the Commonwealth Constitution or a subject of the Commonwealth Constitution'.[79] Pausing here, I interpret the reference to the 'Australian Constitution' to in fact to be a reference to either the plaintiff or the 'Australian Taxation Office', as that is the only way I can make any sort of sense of that submission. That interpretation also enables me to reconcile the submission with Mr Wolski's later submission that the court's and the plaintiff's powers needed to be founded in the Constitution.[80]
•The 'Australian Constitution is fraud [and is] a foreign power. It's the Commonwealth Constitution of Australia that we work under …'.[81]
•All the laws relied on by the plaintiff are 'null and void' and do not exist.[82]
•The plaintiff has failed to demonstrate to Mr Wolski's satisfaction that the plaintiff has the necessary legal authority to pursue Mr Wolski, including to issue the DPN.[83]
•The court itself had failed to demonstrate to Mr Wolski's satisfaction that it had jurisdiction in respect of the plaintiff's claim.[84] Similar to the submission developed with respect to the plaintiff itself, allied to this submission was a submission that there is no presumption that the court had power, and that 'the burden of proof lies on those who assert its existence'.[85]

The discrete arguments distilled

[76] ts 13.

[77] ts 12.

[78] ts 12. A similar submission was made at ts 16.

[79] ts 13.

[80] ts 16. If I am wrong in my interpretation, and Mr Wolski was intending to contend that the Constitution is a corporation, that is manifestly nonsense and cannot give rise to an arguable defence to the plaintiff's claim. If on the other hand Mr Wolski was intending to persuade the court that there is a relevant distinction between a (valid) 'Commonwealth Constitution' and an invalid 'Australian Constitution', I address that argument later in these reasons.

[81] ts 14.

[82] ts 13.

[83] ts 14.

[84] ts 14.

[85] ts 16.

From the above, I discern the following discrete arguments.
First, Mr Wolski contends that a distinction is to be drawn between the physical living being that was Mr Wolski (the 'real' Mr Wolski), and a fictional legal entity sharing the same name as Mr Wolski (the 'fictional' Mr Wolski). This had various consequences including that:
(a)the DPN had been issued to the fictional Mr Wolski as opposed to the real Mr Wolski; and
(b)Mr Wolski, in his separate capacity as a living being, was immune from suit from the plaintiff.
I shall refer to this as the 'living being argument' for ease of reference.
Second, Mr Wolski contends that the Mr Wolski (as a 'living being') was entitled to exercise certain powers and rights under the Administration Act 1903 (WA), and Mr Wolski was purporting to exercise those rights to appoint the plaintiff as a trustee of 'Zygmund Wolski estate' and that this act enables a discharge of Mr Wolski's liability to the plaintiff. I shall refer to this as the 'Administration Act argument'.
Third, Mr Wolski contends the plaintiff and court were each obliged to demonstrate that they had the requisite legal authority to act in these proceedings but had failed to do so. Mr Wolski contends that there is no presumption that the plaintiff had power, and that 'the burden of proof lies on those who assert its existence'.[86] I shall refer to this as the 'unproven authority argument'.
[86] ts 16.
Fourth, Mr Wolski contends that the plaintiff had no authority to pursue its claim against Mr Wolski for the following reasons:
(a)the plaintiff is a corporation and as a corporation it can have no authority over living beings, including Mr Wolski; and
(b)the plaintiff is a public servant and it is illegal for a public servant to demand monies from living beings, including Mr Wolski.
I shall refer to this as the 'no standing argument', it being an extension of Mr Wolski's written argument attacking the standing of the plaintiff. I classify this argument as separate to the unproven authority argument since Mr Wolski is asserting positive reasons why he says the plaintiff cannot pursue him.
Fifth, Mr Wolski contends that the plaintiff was seeking to enforce laws that were null and void. The reasons for this were not clearly articulated, but as best as I can apprehend the argument runs that all laws that the plaintiff was reliant upon were constitutionally invalid.
In this regard, Mr Wolski apparently draws a distinction between what Mr Wolski describes as the 'Australian Constitution' and 'Commonwealth Constitution'. Mr Wolski contends that the 'Commonwealth Constitution' is the valid founding instrument, and that the 'Australian Constitution' is by contrast fraudulent and invalid.
I shall refer to this as the 'invalid laws argument'.

Disposition

For the reasons that follow, no arguable defence to the plaintiff's claim emerges from the matters raised by Mr Wolski in oral submissions.

The living being argument

The argument that there is somehow a legally relevant distinction to be drawn between an individual's 'living being' and some legal fictional manifestation or construct of that individual has been consistently rejected by Australian courts, including the Supreme Court of Western Australia.[87]
[87] A few recent examples will suffice; see Kelly v Fiander [2024] WASC 275 [26] - [31] (Musikanth J), including the authorities cited at footnote 7; Palmer; Stefan v McLachlan [2023] VSC 501; (2023) 105 MVR 214 [12], [23] - [26], [29].
Accordingly, I find that Mr Wolski's living being argument does not give rise to an arguable defence to the plaintiff's claim.

The Administration Act argument

Mr Wolski's Administration Act argument is manifestly nonsensical.
Mr Wolski referred to s 17 of the 'Western Australian Administration Act'. If this was intended to be a reference to either s 17 or s 17A of the Administration Act 1903 (WA), I cannot see the relevance of those provisions to the plaintiff's claim, since those provisions deal with the power of a court to deal with infant's property in the context of a deceased estate.
At any rate, I cannot see how Mr Wolski has any power to appoint the plaintiff to fulfil any relevant legal role or position, nor how any provision of the Administration Act operates to impact Mr Wolski's liability in respect of the plaintiff's claim in any way.
The Administration Act argument also appears to rely (in part at least) on the living being argument in the sense that Mr Wolski, in purporting to appoint the plaintiff under the Administration Act, again drew upon his asserted distinction between his 'living being' self and his legal fictional counterpart. This distinction has already been rejected above.
The Administration Act argument does not give rise to an arguable defence to the plaintiff's claim.

The unproven authority argument

The unproven authority argument as identified above is raised with respect to both the plaintiff and the court, in that the contention is that the plaintiff and court must each demonstrate (presumably to Mr Wolski's satisfaction) that they have the requisite authority to act.
I do not consider that this gives rise to any arguable defence.
I am satisfied that this court has jurisdiction to rule upon the plaintiff's application under the District Court of Western Australia Act 1969 (WA), and I am satisfied that the action has been properly brought by the plaintiff. The plaintiff's claim is a claim for a debt in respect of which the plaintiff has an entitlement to sue and is within the jurisdictional limit of the court.[88]
[88] Section 255‑5 of sch 1 to the TAA establishes that the amount of a tax-related liability due to the Commonwealth is a debt, for which a Deputy Commissioner of Taxation may sue in a court of competent jurisdiction. By s 50(1)(a) of the District Court of Western Australia Act 1969 (WA), this court has jurisdiction in respect of personal actions up to the jurisdictional limit of $750,000.
Further, in respect of the court's jurisdiction, I note that Mr Wolski filed an unconditional appearance which I consider to be a submission by Mr Wolski to this court's jurisdiction.[89]
[89] Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529, 539; Westpac Banking Corporation v Figliomeni [2024] WASC 292 [21] (Master Russell).
Nothing in the material put before me gives me any cause to doubt either the plaintiff's entitlement to bring this action or the court's jurisdiction to rule upon the plaintiff's application.

The no standing argument

Mr Wolski's no standing argument invoked the living being argument in that it was suggested that living beings were somehow immune from suit from the plaintiff. As indicated above, the living being argument finds no basis in law, and any reliance on that argument to attack the standing of the plaintiff is misplaced.
I reiterate that I am satisfied that the plaintiff has standing to bring the action against Mr Wolski.
Nothing in Mr Wolski's oral submissions in support of the no standing argument caused me to doubt the plaintiff's standing.

The invalid laws argument

This leaves the invalid laws argument.
The invalid laws argument was based on a contention that there was a distinction to be drawn between a valid 'Australian Constitution' and an invalid 'Commonwealth Constitution'. That contention is manifestly untenable and without merit.
Nothing in Mr Wolski's oral submissions identified any arguable basis for finding that any law relevant to the plaintiff's application was null and void.

Judiciary Act 1903 (Cth)

For completeness, in view of Mr Wolski's arguments referencing the Constitution, I have had regard to the potential application of s 78B of the Judiciary Act 1903 (Cth), which operates where a cause before a court involves a matter arising 'under the Constitution' or involves the interpretation of the Constitution.
The plaintiff submitted that no true constitutional issue is properly raised by Mr Wolski, and s 78B of the Judiciary Act does not prevent the court from proceeding to determine the matter where a Constitutional point taken is hopeless: Glennan v Commissioner of Taxation.[90]
[90] Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 198 ALR 250; (2003) 77 ALJR 1195; (2003) 24 Leg Rep 20; (2003) 53 ATR 101 [14] (Gummow, Hayne & Callinan JJ). See also Ponnambalam v The State of Western Australia [2013] WASCA 101 [9] (McLure P, Buss & Newnes JJA agreeing).
I accept that submission. In circumstances where Mr Wolski has been unable to identify any arguable defence (including with respect to any matter arising under the Constitution or involving its interpretation), I do not consider that s 78B of the Judiciary Act precludes me from proceeding to determine the application.[91]
[91] See Kiley v McMahon [2024] VSC 228 [108] ‑ [116] (Harris J).

Outcome

The plaintiff is entitled to judgment against Mr Wolski in the amount of $502,443.91, plus interest thereon pursuant to s 32 of the Supreme Court Act 1935 (WA) up to the date of judgment.
I shall hear further from the parties on calculation of interest and on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DP
Court Officer
19 SEPTEMBER 2024