Dickson v Commonwealth; Dickson v Director of Public Prosecutions (Commonwealth)

[2022] NSWSC 1122

Supreme Court

New South Wales

Medium Neutral Citation:

Dickson v Commonwealth; Dickson v Director of Public Prosecutions (Commonwealth) [2022] NSWSC 1122

Hearing dates:

25 March 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

In 2021/164929:

(1) Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed generally on the basis that the proceedings are an abuse of process of the Court.

(2) The plaintiff is to pay the defendant’s costs of this motion and of the proceedings.

(3) Any future listings are vacated.

In 2021/165953:

(1) Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed generally on the basis that the proceedings are an abuse of process of the Court.

(2) The defendant is relived of the obligation to file a Defence in the proceedings.

(3) The plaintiff is to pay the defendant’s costs of this motion and of the proceedings.

(4) Any future listings are vacated.

Catchwords:

CIVIL PROCEDURE - Declaratory proceeding – Damages proceedings – challenge to conviction in the trial by jury – challenge to sentencing at trial – challenge to determinations upon appeal – invalidity – constitutional issues – notices of motion to dismiss summary for declaratory relief and statement of claim for damages – abuse of process – unlikely to succeed – summons and statement of claim dismissed

Legislation Cited:

Commonwealth Constitution

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Director of Public Prosecutions Act 1983 (Cth)

Judiciary Act 1903 (Cth)

Supreme Court Act1970 (NSW)

Uniform Civil Procedure Rules2005 (NSW)

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Clone Pty Ltd v Players Pty Ltd [2018] HCA 12

Dickson v R (No 2) [2018] NSWCCA 183

Dickson v R (No 3) [2018] NSWCCA 242

Dickson v R [2016] NSWCCA 105

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421

Hassan v Sydney Local Health District [2022] NSWSC 954

Hunter v Chief Constable of West Midlands [1982] AC 529

Kirk v Industrial Court of NSW (2010) 239 CLR 531

PFC v New South Wales [2015] NSWSC 1507

Pratton v The Commonwealth of Australia [2017] HCA Trans 124

Quail v Gibson [2021] FCA 1115

R v Antony James Dickson (No 18) [2015] NSWSC 268

R v Dickson [2015] NSWSC 268

Re v Jarman; Ex Parte Cook (No 1) 1997 188 CLR 595

Reichel v Magrath (1889) 14 App Cas 665

Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178

Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260

State of New South Wales v Kable (1996) 189 CLR 51

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591

Wentworth v Rogers [No 5] (1986) 6 NSWLR 534

Category:

Principal judgment

Parties:

2021/164929
Anthony James Dickson (Plaintiff)
Commonwealth of Australia (Defendant)

2021/165953
Anthony James Dickson (Plaintiff)
Director of Public Prosecutions (Defendant)

Representation:

Counsel:
Plaintiff in person
B Narula (Defendants)

Solicitors:
Australian Government Solicitor (Defendants)

File Number(s):

2021/164929; 2021/165953

Judgment

INTRODUCTION

1. HIS HONOUR: The plaintiff, Mr Anthony James Dickson, has brought two proceedings in this Court. The first was commenced by Summons (file number 2021/00165929) and seeks declarations that his conviction and sentence in this Court before Beech-Jones J (as his Honour then was) are “void” (“the Declarations Proceeding”). The second was commenced by a Statement of Claim (file number 2021/00165953) and seeks declarations that the trial and sentence decisions are “void” and “inconsistent with the Australian Constitution”, that he “be acquitted”, the convictions “be quashed”, a “verdict of acquittal be entered” and orders for damages totalling $840,000,000 (“the Damages Proceeding”). The Commonwealth of Australia and Commonwealth Director of Public Prosecutions (“CDPP”) are the defendants in the Declarations Proceeding and Damages Proceeding, respectively. (For simplicity, I will refer to both defendants as simply “the defendants” or “the Commonwealth”).

2. The matter that was listed before me concern two Notices of Motion (“the Notices of Motion”) filed on 3 June 2022 by the defendants seeking to dismiss the Summons and Statement of Claim pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or in the inherent jurisdiction of this Court. In the alternative, the Commonwealth seeks that the Statement of Claim in the Damages Proceeding be struck out pursuant to r 14.28 of the UCPR.

FACTUAL BACKGROUND

3. The plaintiff was found guilty on 22 December 2014 following a trial before Beech-Jones J (as his Honour then was) and a jury of 12 in this Court. He was convicted of two offences: the first offence was tax fraud conspiracy under s 135.4(5) of the Criminal Code Act 1995 (Cth) (“Criminal Code”) and the second being money laundering conspiracy under ss 11.5(1) and 400.3(1) of the Criminal Code (“the trial decision”).

4. On the 20 March 2015, Beech-Jones J sentenced the plaintiff to imprisonment for seven years and six months for tax fraud conspiracy, commencing 20 December 2014, and nine years for money laundering conspiracy, commencing 22 December 2016, with a single non-parole period of seven years expiring on 21 December 2021.

5. The offences were sophisticated and complex but a broad summary of the offences follows. First, the tax fraud conspiracy charge involved the plaintiff and a co-conspirator agreeing to cause a company called NueMedix Health Australasia Pty Ltd (“NHA”), of which the plaintiff and his co-conspirator were directors, to make false depreciation claims in tax returns of many hundreds of millions of dollars: R v Antony James Dickson (No 18) [2015] NSWSC 268 at [9] (“Dickson (No 18)”). As a consequence of the false depreciation claims, no tax debt would arise in favour of the Commonwealth.

6. Secondly, the plaintiff was convicted of a money laundering charge, where he and his co-conspirator agreed to deal with the proceeds of crime, namely, the amounts derived from the tax fraud conspiracy held across several different bank accounts that represented cash distributions from the trusts to NHA. These funds were, in turn, distributed to various offshore accounts controlled by entities associated with the plaintiff and then repatriated to Australia, largely for the plaintiff and his co-conspirator’s benefit: Dickson (No 18) at [10].

7. Without delving into the complex yet strong circumstantial evidence adduced by the Commonwealth Crown, it was established beyond reasonable doubt that the plaintiff’s use of false identities was an aspect of his modus operandi in carrying out both of the conspiracies: Dickson (No 18) at [34].

8. It was accepted by the plaintiff that the total amount payable for three to five years under the assignment agreements by NHA was approximately $450 million. It was found in Dickson (No 18) at [74]-[76] that it was intended to apply that entire amount in false deductions to offset declared income. The extent of the intended loss, or risk of loss, was 30 per cent of this figure, being approximately $135 million.

9. In Dickson (No 18) at [82], it was found that “loss” in the Criminal Code relevantly includes a loss to the Commonwealth if it does not get property that it would otherwise be owed, namely a tax debt owed by NHA.

10. The object of the conspiracy was to claim false tax deductions to avoid raising a tax debt in favour of the Commonwealth. Despite this, the completion of the conspiracy was frustrated by authorities. It was held in Dickson (No 18) at [85] that, even if NHA were able to obtain amended tax assessments, the estimated temporary loss to the Commonwealth would still remain in excess of $100 million. An attack on these findings form part of the plaintiff’s submissions for the present proceedings.

11. The plaintiff appealed against his convictions and the Crown appealed the sentence.

12. On 10 June 2016, the Court of Criminal Appeal in Dickson v R [2016] NSWCCA 105 dismissed the plaintiff’s conviction appeal and upheld the Crown’s sentence appeal. The plaintiff was resentenced to imprisonment for nine years, commencing 22 December 2014, for the tax fraud conspiracy and twelve years for the money laundering conspiracy with a single non-parole period of nine years and three months expiring 21 March 2024 (“the 2016 decision”).

13. On 30 June 2016, the plaintiff applied to the High Court for special leave to appeal against the Court of Criminal Appeal’s Decision. Bell and Keane JJ refused special leave on 16 December 2016.

14. The plaintiff is currently serving his sentence imposed by the New South Wales Court of Criminal Appeal.

15. On 20 November 2017, the plaintiff made an application to the Court of Criminal Appeal to re-open its decision from 2016, raising a further 30 grounds of appeal against his conviction and 13 grounds against his sentence. He also submitted to the Court of Criminal Appeal that it had failed to determine ground 7 of his original appeal.

16. On 27 August 2018, the Court of Criminal Appeal dismissed this application in Dickson v R (No 2) [2018] NSWCCA 183 on the basis it had no jurisdiction (“the August 2018 decision”).

17. On 10 September 2018, the plaintiff made an application to set aside the Court of Criminal Appeal’s decision of 27 August 2018 and re-open the decision of 30 June 2016. This application was dismissed by the Court of Criminal Appeal in Dickson v R (No 3) [2018] NSWCCA 242 on 26 October 2018 (“the October 2018 decision”).

18. On 5 March 2019, the plaintiff sought special leave to appeal from both the August and October 2018 decisions from the Court of Criminal Appeal. Nettle and Gordon JJ refused special leave on 12 June 2019.

19. The plaintiff unsuccessfully attempted to re-open the Court of Criminal Appeal decision of 30 June 2016 by writing to the Registrar of this Court.

THE PRESENT PROCEEDINGS

Plaintiff’s Initiating Documents

20. By Summons filed in this Court on 3 June 2021, the plaintiff sought declaratory relief, which included:

1. A declaration that the operation of ss 135.4(5) of the Criminal Code, where the requisite loss to the Commonwealth relates to underpaid and uncollectable federal income tax, is invalid and that his conviction under this provision is thereby void;

2. A declaration that the operation of s 400.3(1) of the Criminal Code, where the proceeds of crime is considered money that should be paid to the Federal Commissioner of Taxation, is invalid and that his conviction under this offence is void;

3. Declarations were also sought in respect of ss 135.4(5) and 400.3(1) of the Criminal Code and ss 16A to 16D of the Crimes Act1914 (Cth) (Crimes Act), as they related to “underpaid and uncollectable federal income” are invalid;

4. A declaration that the sentencing decision in R v Dickson [2015] NSWSC 268 (“sentencing decision”) is void; and

5. A declaration that his convictions be “quashed and a verdict of acquittal be entered for both convictions”.

21. By way of Statement of Claim, also filed on 3 June 2021, the plaintiff sought damages and further sought:

1. Declarations that the trial decision and sentencing decision in this Court are void; and

2. A declaration that the trial decision is inconsistent with the Constitution;

3. A declaration that he be “acquitted” and the convictions be “quashed and a verdict of acquittal be entered”; and

4. Orders for damages and exemplary damages totalling $840 million.

22. The defendant in both proceedings was the Commonwealth after an amendment to the Statement of Claim brought in the Commonwealth as a defendant.

Defendant’s Motions

23. On 8 November 2021, the defendants filed the Notices of Motion, seeking the dismissal of both the Summons and the Statement of Claim, pursuant to r 13.4(1) of the UCPR or in the inherent jurisdiction of the Court, and costs. In the alternative, it was sought for the proceedings to be struck out pursuant to r 14.28 of the UCPR or the inherent jurisdiction of the Court.

Evidence

24. Mr Dickson relied on the following evidence in support of the Summons and the Notices of Motion:

1. Affidavit of Anthony James Dickson, affirmed 15 February 2021 (“Plaintiff’s February Affidavit”);

2. Affidavit of Anthony James Dickson, affirmed 23 June 2021 (“Plaintiff’s June Affidavit”); and

3. Affidavit of Anthony James Dickson affirmed 9 December 2021 (“Plaintiff’s December Affidavit”).

25. He also relied upon the outline of submissions in support of the Summons dated 15 February 2021.

26. In support of the Statement of Claim, Mr Dickson relied on the evidence adduced in support of the Summons, furthermore, he produced:

1. The outline of submissions in support of the Statement of Claim, which was filed 3 June 2021; and

2. A Notice of Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth) dated 19 July 2021.

27. In support of the Notices of Motion, the defendants relied on the:

1. Affidavit of Ben May from the Australian Government Solicitor, affirmed on 8 November 2021 (“Defendant’s Affidavit”); and

2. Written submissions of the Commonwealth on the Motion filed 14 February 2022.

28. In response to the Notices of Motion, Mr Dickson relied on the written submissions dated 14 March 2022.

PLAINTIFF’S EVIDENCE AND SUBMISSIONS

Summons

29. In support of the Summons, the plaintiff relied on his Plaintiff’s February Affidavit, where he deposed the facts, matters and circumstances which he asserted should have been found by the jury at trial, all of which led to a wrongful conviction. This affidavit challenged the findings made in the trial decision and Dickson (No 18).

30. In essence, the plaintiff’s evidence and submissions in support of the Summons aimed to reagitate issues which had already been decided. In summary, Mr Dickson contended:

1. That he was employed by Rand Stone Consulting, who was professionally engaged by Health For All Children Private Equity Partnership (“HFAC”). He was directed by HFAC as to how to invest the funds in Australia and that he “executed those payment directions”.

2. In challenging the factual findings of the trial decision, Mr Dickson contended that Dampier Finance Asia Pacific Finance Limited was escrow agent for HFAC and directed HFAC to make payments; that Athena Health Patents Inc (“Athena”) was an undisclosed agent for HFAC; that HFAC received “significant funds” from NHA, which were paid at the direction of HFAC; and that HFAC directed the plaintiff to invest funds in various real estate investments.

3. Whilst he cooperated with his brother, Mr John Dickson, who was based in Hong Kong and “occasionally provided advice”, neither the plaintiff nor his brother could agree to “any level of control of those companies”.

4. It was a deliberate strategy employed by the Australian Tax Office (“ATO”), the Australian Federal Police (“AFP”) and the CDPP to suppress certain documents, which had the effect of “shifting the onus” to the plaintiff to “refute the prosecution’s hypothetical assertions”. He also contended that the proceedings were brought to “financially paralyse him” and the search and seizure of materials by the ATO and AFP was deficient. He further asserted that the refusal of a subpoena in the trial decision prevented him from adducing documents which could rebut the Crown’s evidence from being released. The “late disclosure” of some material proved that the Commonwealth had access to undisclosed evidence.

5. He made further complaints about the manner and content of the trial judge’s summing up, including; failing to explain the ATO’s “unsatisfactory conduct”; did not attribute a document being a “sham” to any of the elements of the offence; that the jury were not directed to make a unanimous finding in respect of the findings of tax underpayment for at least one year; that the jury were not asked to stand in the shoes of the ATO; that the jury were not informed that the prosecution had not disclosed documents; and excluded reference to the plaintiff’s rebuttal evidence.

6. Mr Dickson made complaints about the manner and content of the Crown’s closing submissions, arguing that the prosecution was selective and ignored elements of his evidence. He also claims the prosecution omitted to inform the jury of the non-disclosure not put in front of them of parts of his evidence, that the jury were asked to “ignore” aspects of his evidence and that his contentions were mocked.

7. Mr Dickson took issue with the evidence of Mr Harvey of the ATO, who he described as failing to address all the elements of the offence under s 135.4(5) of the Criminal Code or how the facts applied to the elements of the case.

8. The plaintiff made further complaints concerning the findings in the sentencing decision and Dickson (No 18). These complaints included asserted errors about Justice Beech-Jones’ incorrect use of taxation terminology and mixed tax-legislation concepts. In particular, a finding of Beech-Jones J that there was a temporary delay in obtaining the tax debt of $104,152.053, which the plaintiff contended was “incomprehensible”.

9. Further complaints concerning the alleged failure of the ATO to respond to NHA’s objections to the amended tax assessments and the detailed tax advice filed by the plaintiff which the prosecution “ignored” were raised in any of the relevant aforementioned 2016 proceedings.

31. Mr Dickson’s submissions attempted to raise numerous matters of law and fact to ultimately assert that he was wrongly convicted and submitted that his “trial was fundamentally unfair” and his “conviction is unconstitutional”.

Statement of Claim

32. Mr Dickson’s Statement of Claim was also filed on 3 June 2021 and to a large extent, repeated his affidavit and submissions in the Summons. In summary, he contended:

1. The Court of Criminal Appeal ignored the plaintiff’s arguments, written submissions, a “specially prepared summary” and an entire ground of appeal.

2. Beech-Jones J did not “allocate any evidence whatsoever to any of the essential elements…nor to the matters to be proven under the federal income tax legislation” or refer to “defence alternative inferences”.

3. Beech-Jones J failed to consider all questions of law required to determine amended assessments and consequent income tax liability.

4. The jury were not informed about the prosecution’s failure to disclose material and the reasons for discharging the co-conspirator.

5. The jury were given a direction to produce a unanimous result in relation to the patented technology but were not directed to give a unanimous decision in relation to any particular year in which this may have happened.

6. The Commonwealth had relied on the Supreme Court’s jurisdiction, even though it did not have the requisite jurisdiction to determine the matter.

7. The Commonwealth had failed to communicate the essential elements of the offences to the jury; failed to tender documents; failed to provide analysis of all the relevant tax legislation; failed to call witnesses; denied to the jury that it had not disclosed all documents; and distilled the question of guilt to a binary answer, leading the jury to produce a verdict in an unfair trial. Ultimately, he contended that the prosecution had “intended to keep the Court in ignorance of the truth”.

8. Where Commonwealth had failed to disclose documents that it had failed to prove its case.

9. That the Commonwealth committed a “fraud by omission” and “fraud by commission” because it had only produced a “subset” of documents and did not disclose the documents seized by the AFP or ATO and did not disclose all of its material or findings to the defence.

10. In the absence of all the relevant material facts, the jury were “induced” to make a guilty verdict for both of the offences and that he sought damages on the basis that he has suffered substantial personal loss as a result of being wrongfully.

11. He sought exemplary damages because the Crown acted in a deliberate dishonest, unethical and knowingly pernicious manner causing the wrongful conviction.

1. In addition to this, he provided two bases for impeaching the trial decision; the deliberate suppression of material by the Commonwealth and the evidence presented by the Commonwealth was cherry-picked. To this extent, the jury was directed to ignore large parts of his evidence, which led to his conviction. Where fraud can be proved, the Court is entitled to vitiate the decision. He referred to the decisions of Wentworth v Rogers [No 5] (1986) 6 NSWLR 534 and Clone Pty Ltd v Players Pty Ltd [2018] HCA 12 to impeach a “judicial decision for fraud”. He accepted that “fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case and obtaining that decree by that contrivance” and that he must specify what the real facts of the case actually were.

Notice of the Constitutional Matter

33. On 18 October 2021, the plaintiff filed a Notice of a Constitutional Matter pursuant to s 78B of the Judiciary Act. The s 78B Notice alleged that this Court did not have jurisdiction to determine offences because only the Federal Commissioner of Taxation is empowered to do so. This is because this Court did not exercise judicial power, but rather exercised a hypothetical opinion, contrary to the independence and integrity of the Supreme Court. It also breached the separation of powers, sought to make a binding decision on the Federal Commissioner of Taxation who was not a party, and was invalid pursuant to s 109.

34. He reiterated his contention that the CDPP had stringent obligations which it failed to meet. He asserted that the fraud on the Court, was that the prosecution communicated a false and incomplete case to the Court. As the Crown had supressed seized documents, the trial was not fair in accordance with s 80 of the Australian Constitution, requiring that the trial be held by jury.

35. In oral submissions on 25 March 2022, Mr Dickson contended:

1. That it was critical for the Court to determine whether the Supreme Court has the requisite jurisdiction to determine whether income tax is underpaid or not by a taxpayer. He argued that the Court lacked this jurisdiction and argued that this engaged s 109 of the Constitution. He submitted that it appeared to be a conflict between state and federal laws. If it was constitutionally invalid, his conviction should be set aside.

2. It was almost “incomprehensible” to ask a jury to prove, pursuant to federal taxation laws, that tax was excessive and then determine whether the tax was underpaid to a criminal standard: a contention he labelled as “a double standard of proof”.

3. He asked for this Court to “stand in the shoes of the Federal Commissioner of Taxation” to make decisions that income tax is underpaid and requested for this Court to occasion “some sort of abbreviated method of determining whether income tax is underpaid”.

Amended Statement of Claim

36. As mentioned, on 12 April 2022, Mr Dickson filed an Amended Statement of Claim, after the hearing for these proceedings took place. It is unnecessary to consider the Amended Summons separately as the conclusions reached on the Notice of Motion with respect to the damage’s proceedings would have equal force in that respect.

COMMONWEALTH’S NOTICES OF MOTION AND SUBMISSIONS

37. On 8 November 2021, the Commonwealth filed the Notices of Motion. The dismissal of both of the plaintiff’s proceedings were sought on the basis that this Court lacks jurisdiction; the proceedings were frivolous or vexatious; that no reasonable cause of action is disclosed; or the proceedings are an abuse of process.

38. In oral submissions on 25 March 2022, the Commonwealth provided three bases for which the Court should dismiss or strike out the proceedings, in accordance with the Notices of Motion:

1. Mr Dickson sought declaratory relief, on the basis that he was wrongfully convicted and his convictions should be quashed. The Commonwealth submitted that declarations of that kind would create no foreseeable consequences because Mr Dickson’s convictions were entered following the trial by jury upon order of this Court, and those convictions merged in August at the Criminal Court of Appeal, dismissing his conviction appeal. A declaration could not set these orders aside.

2. Mr Dickson submitted that his cause of action in the Statement of Claim is not one in tort, but rather, fraud on the Court. The Commonwealth contends there is no basis whatsoever provided for how a claim to set aside a judgment for fraud gives rise to a claim for a civil wrong in damages for $840 million. Absent a civil wrong, there is no entitlement to damages. The manner in which the claim was presented by Mr Dickson was an abuse of process and would require him to collaterally attack his convictions, by which the civil action would be turned into a de facto criminal appeal outside the carefully constructed statutory framework of criminal appeals.

3. In the alternative, should the Statement of Claim assert to set aside the trial judgments on the basis of fraud on the Court, this does not give rise to damages. Fraud needs to be clearly pleaded and proved. The assertions of fraud, which primarily consisted of general complaints about the trial judge and the prosecution, falls far short of amounting to an actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that degree by contrivance. It was submitted that Mr Dickson’s pleadings appear more akin to complaints trying to circumvent the appellate framework.

39. The Commonwealth also addressed Mr Dickson’s claim of constitutional invalidity. On 29 July 2021, the Australian Government Solicitor’s Constitutional Litigation Unit sent a letter to Mr Dickson to advise that the Commonwealth Attorney General would not be intervening in the proceedings.

40. In oral submissions on 25 March 2022, the Commonwealth relied on State of New South Wales v Kable (1996) 189 CLR 51 at [31] where it was held that “all Courts, whether superior or inferior, have the authority to decide whether a claim that is made in the Court is within its jurisdiction”.

41. In response to the Notices of Motion, Mr Dickson made the following oral submissions:

1. Mr Dickson emphasised that the Court needed to approach the question raised by the motion by looking separately at the Summons and the Statement of Claim. This was no doubt because much of his argument in defence of the motions placed reliance on the merits of the propositions advanced in support of the Summons and the Statement of Claim as I have earlier summarised them.

2. In any event, as to the Summons, Mr Dickson contended that the singular issue underlying the question of constitutional invalidity was whether the Supreme Court could determine whether income tax is underpaid or not by a taxpayer.

3. He emphasised that it was necessary to examine the statutory provisions closely. He emphasised that it was important to note that it was necessary for the prosecution to prove that the company NHA had actually underpaid income tax. The prosecution at the trial and the Crown witnesses did not mention the fact that NHA had filed compensating adjustment applications and did not mention the fact that the Commissioner of Taxation had considered those applications. It was argued that the elements of the offence required the Crown to prove that income tax was actually underpaid.

4. It was also argued that it was contrary to the institutional integrity of this Court to “attempt to stand in the shoes of the Commission of Taxation”. A mere full statement on a tax return does not give rise to the underpayment of income tax.

5. It was accepted that the constitutional issue sought to be raised was not raised at trial or in subsequent proceedings except when the applicant had made the application to reopen his appeal with the Court of Criminal Appeal.

6. As his constitutional invalidity claims are novel and have not been previously agitated before the Court, Mr Dickson submitted that it is “totally inappropriate” to dismiss proceedings where there is an early stage of litigation which involve novel questions of law.

7. He also submitted that to dismiss the proceedings, it was required to have a high degree of certainty about the ultimate outcome of the matter. He contended that the Commonwealth strategically avoided his submissions and the Courts had only had the briefest of opportunities to be acquainted with them. In such circumstances, it would be a “grave error” to summarily dismiss the proceedings.

8. The Summons was not a collateral attack because “this is a direct attack [on] the conviction”. There is no suggestion that the issue of constitutional invalidity involves any issue of estoppel or res judicata. Nor is it a de facto appeal.

9. As to the question of the Statement of Claim, Mr Dickson raised similar issues as to novelty and the requirement for a high degree of certainty.

10. He emphasised that his Statement of Claim sought that “the conviction once again to be set aside”. He stated that the nub of his case was based upon the “extensive and gross non-disclosure of seized documents” and there were two elements of fraud. The first involved senior counsel for the prosecutor who was said to have conveyed a false case because the trial Court received only a subset of available evidence. The prosecution had additional evidence which was not provided to Mr Dixon so that the entirety of the material could not be made available to the Court. It was “fraud by omission”.

11. The second basis for fraud was that senior counsel did not advise that the jury had “seen everything” and that they had everything they needed to make a decision.

12. The prosecution case focused on the incomplete documentation. On one occasion senior counsel for the prosecutor disclosed that thousands of pages had been seized and not disclosed to the defence.

13. Authority indicates that an application to set aside an order for fraud is a permitted collateral attack and a decision may be vitiated by fraud or a separate proceedings alleging fraud.

RULE 13.4 AND RELEVANT PRINCIPLES

42. Rule 13.4 of the UCPR provides:

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

43. In Hassan v Sydney Local Health District [2022] NSWSC 954, I summarised the relevant principles at [73]-[83] as follows:

[73] In Global Partners Fund Ltd v Babcock & Brown Ltd (In liq) (2010) 267 ALR 144; [2010] NSWSC 270, Hammerschlag J (as his Honour then was) stated at 159 [74] (Global Partners):

“Part 13 r 13.4 UCPR gives the court a discretionary power to dismiss proceedings where the plaintiff’s case is so hopeless that it cannot possibly succeed. A party will not be denied a contested merits hearing unless the absence of a cause of action is clearly demonstrated. If it is demonstrated that there is a real question to be tried the court should not determine the matter summarily. Summary dismissal brings the proceedings to end at an interlocutory stage. The test is a demanding one and exceptional caution is required: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; Webster v Lampard (1993) 177 CLR 598; Agar v Hyde (2000) 201 CLR 552.”

[74] In Uger v Attorney General for New South Wales [2019] NSWCA 86, White JA (with whom Meagher and Brereton JJA agreed) commented at [70]:

“One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications.”

[75] The principles attending summary dismissal are well-known. While the applicable test has been variously expressed, “all of the verbal formulae” merely indicate the need for “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at 576 [57] (Gaudron, McHugh, Gummow and Hayne JJ) (Agar).

[76] For the defendants to succeed, the claim may be “so obviously untenable that it cannot possibly succeed” even if argument is required “to evoke the futility of the plaintiff’s claim”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130 (Barwick CJ) (General Steel).

[77] The test to be applied is very demanding. There must be “a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way”: Agar at 576 [57] (Gaudron, McHugh, Gummow and Hayne JJ). In Dey v Victorian Railways Commissioners (1949) 78 CLR 62, Dixon J said at 91:

“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury … but once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

[78] In Webster v Lampard (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ emphasised the stringency of the test to be applied before entering summary judgment. Their Honours said at 599 and 603:

“The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.’ …

Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.”

[79] The approach to summary dismissal in a case turning on questions of law, rather than evidence, was discussed by Macfarlan JA (with whom Spigelman CJ and Allsop P, as his Honour then was, agreed) in Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90 at 566 [75]:

“Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. While caution is also required where, as here, the application turns on questions of law and there is no reasonable prospect that deficiencies in what is pleaded will be able to be cured by amendment, opportunities to summarily dismiss or strike out claims will arise more frequently.”

[80] The above principles applicable to summary dismissal of proceedings were summarised by Macfarlan JA (with whom Beazley P, as Her Excellency then was, agreed) in O'Brien v Bank of Western Australia [2013] NSWCA 71 at [3]:

“The High Court decision in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application:

(a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).

(b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid).

(c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24]).”

[81] Where a deficiency is curable by amendment, the Court may instead strike out the proceeding. As this proceeding is commenced by Summons, not a Statement of Claim, r 14.28 of the UCPR does not strictly apply: see UCPR r 14.1 and Vangu Kitoko v State of New South Wales [2021] NSWSC 545 at [42], [44] (N Adams J).

[82] Nevertheless, “the court has, as a necessary incident of its jurisdiction, the power to control its own proceedings and procedure in the same way as if the proceedings were conducted on pleadings in the strict sense”: Global Partners at 159 [77] (Hammerschlag J, as his Honour then was).

[83] I also note, at the outset, that when the jurisdiction of the Court to entertain a particular cause of action is challenged, the Court is required to satisfy itself that it has jurisdiction before proceeding further with the hearing of the proceedings: R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 215 (Gibbs J); National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585 (Kirby P). Moreover when that question is raised, it is incumbent upon the party invoking the Court’s jurisdiction to demonstrate that such jurisdiction exists: Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 426 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Meehan v Commissioner of Police (1999) 47 NSWLR 284; [1999] NSWCA 292 at 285 [4] Mason P).

CONSIDERATION

Introduction

44. Contrary to the plaintiff’s beliefs, the current proceedings do not present an opportunity to reagitate issues which have already been decided. Rather, they are an opportunity to respond to the Notices of Motion to dismiss or strike out his Summons and Statement of Claim.

45. In reviewing the evidence adduced by Mr Dickson, what has become most apparent, is the failure to engage with the issues raised squarely by the Notice of Motion. His submissions substantially repeat the evidence and argument adduced from the trial decision and in subsequent appeals.

46. His attempts to introduce new factual propositions must also be rejected. Mr Dickson had a statutory right to raise these issues in the trial, in his appeal to the Court of Criminal Appeal and in the special leave applications in the High Court (and application to re-open). Not only are these proposed factual circumstances not consonant with the findings made by the jury in the trial decision, but these contentions were absent from any of the evidence or submissions adduced at the later proceedings.

47. The contention of Mr Dickson, that the Commonwealth failed to disclose documents has little or no prospects for success on two bases. First, this can be explained, at least in part, by the fact that the plaintiff withdrew his subpoena requesting documents: R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595 (Beech-Jones J) at [21] (“Dickson (No 12)”).

48. Secondly, Mr Dickson contended their preclusion at trial severely disadvantaged him. The primary issue with this contention is that the plaintiff made an informed forensic decision about how he wished to run his case at trial and provided clear instructions to his senior counsel.

49. The plaintiffs’ difficulties are further illustrated by the history and circumstances of the late disclosure of documents at the plaintiff’s criminal trial as described in the Commonwealth’s submissions:

1. In the 2016 Decision their Honours noted at [65] that the plaintiff’s written submissions referred to the late disclosure issue however “[s]ince there is no ground of appeal that raises the issue of late disclosure by the Crown, and the use subsequently made of the documents it has no apparent relevance to ground 2 as framed. It is not further considered”.

1. The trial judged noted that on two occasions following the late disclosure (on 5 and 7 November 2014):

Senior Counsel for Mr Dickson, Mr Gross QC confirmed that he had express instructions on behalf of his client not to seek a discharge of the jury in respect of him (emphasis added): Dickson (No 12) (Beech-Jones J) at [3]).

3. This was referred to in the 2016 Decision at [54] where their Honours noted that the plaintiff “did not join” the co-conspirator’s application to discharge the jury.

4. The trial judge set out the circumstances of this late disclosure which arose as a result of key word searches undertaken by an ATO officer based on the content of the plaintiff’s evidence at his trial, some of which had emerged for the first time: Dickson (No 12) (Beech-Jones J) at [43], [45], [48], [51], [81]).

5. The plaintiff received a forensic advantage due to the late disclosure because the Crown did not use some material which cut “right across” the plaintiff’s case at trial, including one document that Beech-Jones J described as follows:

“…the evidence is capable of demonstrating that “MM” is Michael Harper. He said he did not commence work with NHA until July 2009. Other handwritten annotations on the document make provisions for the inclusion of HFAC as a party. Thus this document is capable of supporting a conclusion that sometime after July 2009 Mr Anthony Dickson instructed Mr Michael Harper to amend the Deed to include references to HFAC and then backdate its execution. It was no doubt for this reason that this document was described by the Crown Prosecutor as cutting “right across this case”. Nevertheless the Crown accepted that the timing of the document's production meant that it could not be used against Mr Dickson… (emphasis added).”

6. The trial judge also noted that the documents recently provided had the potential to be “highly damaging” to the plaintiff’s case however that “[l]eaving aside the question of use by the Crown in the case against him, no other prejudice was asserted on Mr Anthony Dickson’s behalf and, as I said, he does not seek a discharge”: Dickson (No 12) (Beech-Jones J) at [70].

7. The co-conspirator’s senior counsel was also unable to cross-examine the plaintiff on the “highly damaging” documents to the plaintiff. Beech-Jones J noted that, if the co-conspirator’s trial continued, Mr Issakidis’ counsel would be able to cross-examine the plaintiff in relation to the documents that are “highly incriminatory of Mr Anthony Dickson and, because of their late production, as a matter of fairness he should not be confronted with them in his own case well after the Crown case has closed”: Dickson (No 12) (Beech-Jones J) at [71].

8. Further, in relation to a subpoena that the plaintiff issued on the Australian Taxation Office (ATO) prior to his trial, Beech-Jones J noted that “Mr Dickson withdrew the subpoena”: Dickson (No 12) (Beech-Jones J) at [21].

50. As to the plaintiff’s objection to the summing up of the trial judge, in the plaintiff’s 2016 appeal to the Court of Criminal Appeal, he agreed that the “trial judge had provided a comprehensive summary of the evidentiary basis by which the jury had found the appellant guilty”. The Court of Criminal Appeal also confirmed in its 2016 proceedings the trial judge’s summary was a “succinct account of the complex arrangements which lay at the heart of the Crown’s Case” in its 2016 decision at [8]. Specifically addressing his Honour’s findings about the temporary delay in obtaining tax debt, the Court of Criminal Appeal held at [162]-[163] that there was no error in those findings.

51. In relation to the Summons, Mr Dickson focused upon the elements of the offences charged and the need for the prosecution to prove underpayment of tax and the relationship with his constitutional invalidity point. I will return to those issues below.

The Collateral Attack is an Abuse of Process

52. The plaintiff asserted that facts, matters and circumstances which should have been (and were not) found by the jury at his trial led to his “wrongful conviction”. In the Statement of Claim, he contends that this “wrongful conviction” entitled him to an award of damages and exemplary damages.

53. The plaintiff’s claims amount to a collateral attack because, on the case that he puts to this Court, it is necessary to review and determine the validity of an administrative or judicial act in order for him to succeed in the grant of declaratory relief or damages. (For relevant principles and issues relating to the mounting of a collateral attack, see Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178.)

54. The collateral attack on his convictions and sentences follows from both a jury trial in this Court and the Court of Criminal Appeal’s dismissal of his conviction appeal. In circumstances where special leave to appeal to the High Court was refused, the plaintiff avenues for appeal are well and truly exhausted.

55. It is an abuse of process to seek to impugn his convictions which were already determined. The attempt to circumvent the established statutory framework for criminal appeals brings the administration of justice into disrepute.

56. In Hunter v Chief Constable of West Midlands [1982] AC 529, Lord Diplock (with whom Lord Russell of Killowen, Lord Keith of Kinkel, Lord Roskill and Lord Brandon of Oakbrook agreeing) held at 541:

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the ocutr by which it was made.

57. In Reichel v Magrath (1889) 14 App Cas 665, Lord Halsbury LC stated at 668:

My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.

58. In PFC v New South Wales [2015] NSWSC 1507 (which was not disturbed on appeal by the Court of Appeal), Fagan J observed at [17]:

[L]itigating this issue [that there was a false imprisonment that could have been the justification for an arrest] would necessarily require that the Plaintiff prove he was wrongly convicted of the offence on 26 June 2009. It is an abuse of process to mount a cause of action which involves calling into question a conviction entered in a court of appropriate jurisdiction following trial.

59. In my view, both proceedings bring the administration of justice into disrepute because the plaintiff is mounting a collateral attack against his convictions by means of a civil action in relation to a decision that has been finally reached by the trial court and on appeal in the criminal jurisdiction and in relation to which the plaintiff had full opportunity to contest matters. Allowing a collateral challenge to a criminal conviction would convert civil actions to a “de facto avenue of appeal outside the carefully constructed statutory framework of criminal appeals”: Quail v Gibson [2021] FCA 1115 at [28] (Abraham J) (“Quail”). The impact of a successful collateral challenge “would be destructive of public confidence in the administration of justice” because “there may be two conflicting decisions from proceedings, which would have been conducted under different circumstances”: at Quail at [26] (Abraham J).

60. It can be observed that both the Declarations and Damages Proceedings are based on a successful collateral attack. If no collateral attack is available or it fails on the merits, the plaintiff would not be entitled to any relief on the case that he has pled.

61. In my view, the collateral attack amounts to an abuse of process. On this matter alone, the proceedings initiated by the plaintiff must be dismissed. However, I have also considered some of the issues raised by the defendants.

Jurisdictional Issue

62. The Commonwealth contended, to the extent that the plaintiff asserted that the judicial proceedings involved his trial and sentence were beyond the jurisdiction of the Supreme Court and accordingly his convictions and sentence were, as variously referred to in the declaratory proceedings and the damages proceedings, void or invalid and that the Court should quash them, he appeared to invoke the Courts supervisory judicial review jurisdiction pursuant to s 69 of the Supreme Court Act1970 (NSW).

63. There is substance in the description of the plaintiff’s causes of action in this respect just as there is substance in the contentions made by the Commonwealth in answer.

64. It is well established that this Court cannot issue prerogative writs to itself: see Re v Jarman; Ex Parte Cook (No 1) (1997) 188 CLR 595 at 601, 604; Kirk v Industrial Court of NSW (2010) 239 CLR 531 at [98].

65. The Commonwealth also correctly submitted, in my view, that even though the plaintiff sought to impeach is convictions and sentences following a trial by jury in this Court, the operative orders were those in the Criminal Court of Appeal in the same jurisdiction. As the Commonwealth submitted, the incongruity is demonstrated by the fact that the plaintiff would need to join the body responsible for the decision as a defendant: see r 59.4(3) UCPR and Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260 at [11] (Leeming JA).

66. To the extent that Mr Dickson’s submissions acted to the propositions I have summarised above, then it may be concluded that the proceedings brought extend beyond the power of this Court of a supervisory nature. However, it is unnecessary to decide this matter as I have resolved the issues raised by the Notices of Motion on other bases.

Declaratory Relief has No Prospects of Success

67. I next turn specifically to the declaratory relief sought, as distinct from other relief in these proceedings. Mr Dickson primarily seeks declaratory relief; however, declarations do not create rights capable of enforcement and cannot be stayed. In essence, the plaintiff seeks relief which does not ameliorate the grievances he mounts in his proceedings.

68. Whilst superior courts have an inherent power to grant declaratory relief, it remains a “discretionary power which is neither possible nor desirable to fetter”: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 (Gibbs J, as his Honour then was).

69. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582, Mason CJ, Dawson, Toohey and Gaudron JJ explained that the discretion to grant declaratory relief is “confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions”. Consequent of this, the party seeking a declaration must have a “real interest”.

70. As iterated in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, Gaudron J observed at [52]:

[A] declaration cannot be made if it "will produce no foreseeable consequences for the parties." That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth.

71. In Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 (“Aussie Airlines”), Lockhart J (with whom Spender and Cooper JJ agreed) said at 414:

For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:

The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: In Re Judiciary and Navigation Acts (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties.

The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen': University of New South Wales v Moorhouse (1975) 133 CLR 1 per Gibbs J at 10; or if the Court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority (NSW) [1977] 52 ALJR 180 at 180 per Mason J and at 189 per Aickin J.

The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 per Gibbs J at 437; and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 per Lord Dunedin.

Generally there must be a proper contradictor: Russian Commercial and Industrial Bank at 448; and Ainsworth at 596 per Brennan J.

72. The 2016 decision of the Court of Criminal Appeal “holds the field” and is now the basis on which the plaintiff is sentenced. In the result, the declaratory relief in this case does not have utility for the plaintiff. In my view, the plaintiff has no prospects of success in receiving declaratory relief.

73. Further, I do not consider that there is novelty in the issues raised by the declaratory proceedings or the damages proceedings as might provide a stronger basis for Mr Dickson resisting a Notice of Motion.

There is No Reasonable Cause of Action

74. I agree with the Commonwealth that the plaintiff’s claims of fraud do not rise above mere assertion. The argument that the decisions of this Court and the Court of Criminal Appeal were procured by fraud has no basis and to entertain such an argument without a basis in evidence would bring the proper administration of justice into disrepute.

75. It would seem the plaintiff contends that there is a breach of a prosecutor’s “duty” of disclosure. This much was dealt with by Allsop ACJ (as his Honour then was) and Basten JA in Re Application of Potier [2012] NSWCA 222 at [30]-[31] as follows:

The underlying cause of action, stated in negligence, was a breach of the prosecutor’s duty to disclose relevant material at the trial …

To say that the prosecution has a “duty” with respect to the conduct of a criminal trial is not to say that the accused has a corresponding entitlement to bring a claim in damages for breach of that duty. The remedy is to be found within the criminal proceedings and any appeal from a conviction.

76. In Nguyen v The Queen (2020) 269 CLR 299, Kiefel CJ, Bell, Gageler, Keane and Gordon JJ stated at [35], in relation to the discretion of the prosecutor to determine what evidence will be called, that:

The discretion is not reviewable … Whilst the decision remains one for the prosecutor to make, the reality is that if the exercise of that discretion miscarries the accused might be denied a fair trial… It is not to be understood as a duty owed to an accused. It forms part of the functions of a prosecutor.

77. The issues as to a prosecutor’s “duty” of disclosure or the calling of evidence are ones within the realm of the trial court and any appellate court in relation to that proceeding. It is not for this Court, in a civil proceeding, to question or review the prosecutor’s exercise of its discretion or duty.

78. Further, I consider there is no reasonable cause of action in this case because the plaintiff had expressly instructed his senior counsel, reflected in submissions on two occasions, that he did not seek a discharge of the jury in respect of the late disclosure. This was recorded in Dickson (No 12) at [3]. This aspect of the has, therefore, no prospects for success.

79. The plaintiff’s constitutional claim can also be described as hopeless. The plaintiff did not advance how there was a conflict between a State law and a Commonwealth law such as to attract the operation of s 109 of the Constitution. In any case, to the extent that such an inconsistency could be established, the Commonwealth law would prevail to the extent of that inconsistency. I fail to see how s 109 of the Constitution can be engaged in a way that would invalidate (or, more properly, make inoperative) the relevant provisions of the Criminal Code or Crimes Act such that the plaintiff’s convictions could be “void”.

80. The suggestion that this Court can or cannot determine issues as to whether income tax has been underpaid or not is misconceived. The jury and the Court was determining whether the plaintiff was guilty of a Commonwealth criminal offence. This Court is invested with jurisdiction under the Judiciary Act to conduct a trial with respect to an offence against the laws of the Commonwealth. There is no basis to attack the Court’s exercise of power in this respect.

81. Further, the plaintiff’s claims that there was a separation of powers or that this Court could not apply taxation legislation is fundamentally flawed for two primary reasons:

1. The contention misconceives the charges which were alleged against the plaintiff which were conspiracy charges that included risk of loss including temporary loss to the Commonwealth.

2. A reference should be made in this respect to the judgment in Dickson (No 18) at [84]-[54]. Beech-Jones J ruled on a submission by Mr Dickson that there was a possibility that applying the taxation legislation would reduce NHA’s assessable income which was required for a proper assessment of the actual loss to the Commonwealth. His Honour found that it could not be known whether this would occur and was no more than a possibility. He found that it “does not affect the assessment…that the loss resulting from the commission of count 1 was a temporary loss to the Commonwealth of a tax debt in excess of $100m”. This conclusion was not reversed on appeal.

3. Thirdly, I accept the argument, mounted by the Commonwealth in this respect with respect to the judgment of Gageler J in Pratton v The Commonwealth of Australia [2017] HCA Trans 124. The Commonwealth submitted:

“129.9 Secondly, a similar argument was made and rejected in Pratten v Commonwealth of Australia [2017] HCATrans 124 (Gageler J). Inter alia, Mr Pratten had been charged with counts of dishonestly obtaining a financial advantage from the Commonwealth related to his failure to disclose assessable income in a tax return, with a resultant reduction in his liability to pay income tax. He commenced proceedings in the original jurisdiction of the High Court seeking, inter alia, declaratory and injunctive relief on the basis that the financial advantage (the reduction of liability to pay income tax consequent to a failure to disclose assessable income) before the jury was hypothetical until a determination under the Taxation Legislation. income in a tax return, with a resultant reduction in his liability to pay income tax. He commenced proceedings in the original jurisdiction of the High Court seeking, inter alia, declaratory and injunctive relief on the basis that the financial advantage (the reduction of liability to pay income tax consequent to a failure to disclose assessable income) before the jury was hypothetical until a determination under the Taxation Legislation.

129.10. Gageler J held:

Mr Pratten seeks to frame his constitutional argument in a variety of ways. One is in reliance on covering cl 5 of the Constitution. Another is in reliance on the doctrine of separation of powers deriving from Ch III of the Constitution. While stressing that he is not a lawyer and that his precise formulation of the argument may not be optimal, Mr Pratten seeks to illustrate the gravamen of his argument by pointing out the incongruity of there being one outcome in the criminal proceeding and another outcome in the proceedings under Pt IVC, both of which would ultimately be appealable to the High Court.

Whatever way the constitutional argument might possibly be formulated, I cannot consider it viable. For the purpose of determining his criminal liability, the question of whether Mr Pratten obtained a financial advantage through a reduction in his liability to pay income tax consequent on his failure to disclose assessable income was a question of fact. No doubt, it might have been sought to have been proved in a number of ways. But, as a question of fact, it was properly a question for the jury.

What the jury plainly could not do was determine Mr Pratten’s civil liability to pay income tax. But the jury was distinctly not asked to do that. The verdicts of the jury cannot bind the Tribunal in the conduct of the Pt IVC proceedings. Nor could it be suggested that the continuation of those proceedings by Mr Pratten would be an abuse of process in light of his convictions: see Saffron v Commissioner of Taxation (1991) 30 FCR 578.

There is, as Mr Pratten points out, the theoretical potential for the continuation of his proceedings under Pt IVC to produce a result which is inconsistent with the implicit finding of the jury that he obtained a reduction in his liability to pay income tax consequent on his failure to disclose assessable income in each of the relevant years of income. But inconsistency between outcomes on similar issues in different proceedings cannot alone be indicative of a constitutional difficulty. The conclusion that Mr Pratten’s constitutional argument is not viable is sufficient to lead to summary dismissal of the declaration proceeding as well as dismissal of the removal proceeding (emphasis added).

129.11. The plaintiff’s argument is potentially even less meritorious than the one rejected by Gageler J in Pratten. This is so because Mr Pratten was not charged with conspiracy offences, but rather substantive offences of obtaining a financial advantage by deception under s 134.2 of the Criminal Code. Gageler J noted that the financial advantage alleged on each count was “a reduction in Mr Pratten’s liability to pay income tax consequent on his failure to disclose assessable income” and the jury were instructed they would come to their own opinion “as to whether income tax was payable and whether income was received”.

129.12. Conversely, the plaintiff was convicted of conspiracy charges. It is well established that it is the fact of the agreement, or combination to engage in a common enterprise, that is the nub of the offence of conspiracy: Ahern v The Queen (1988) 165 CLR 87 at 93 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ); Agius v The Queen (2013) 248 CLR 601 at [26] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

129.13. As their Honours held in the 2016 CCA Decision at [104]-[105]:

… What was charged, and what the Crown had to prove, was an agreement to dishonestly cause a loss. The Crown did not have to prove a causal nexus between the conspiracy and the object, and no direction to that effect was necessary.

The focus in any conspiracy is upon what the conspirators intended or conspired to bring about, not on whether or not the object was in fact achieved. A Code conspiracy is complete where the conspiratorial agreement between two or more persons has been reached, and where an overt act is undertaken pursuant to the agreement (emphasis added).

129.14. Their Honours further explained in the 2016 CCA Decision at [107]-[108] thats 135.4(10) specifically provides for a finding of guilt “even where the object of the conspiracy was impossible” and, there “could hardly be a causal nexus in a conspiracy with an impossible object”.

82. Further, to the extent that the plaintiff is seeking claims for malicious prosecution, this is unavailable as the criminal proceedings did not terminate in the plaintiff’s favour: A v New South Wales (2007) 230 CLR 500 at [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).

83. In my view, the plaintiff’s claims do not amount to a reasonable cause of action. They are misconceived and are an abuse of process.

In Any Case, the CDPP Has A Statutory Immunity in the Damages Proceedings

84. To the extent that the CDPP has breached some duty of disclosure, I am satisfied that the damages could not be awarded because the CDPP is provided statutory immunity pursuant to s 32A of the Director of Public Prosecutions Act 1983 (Cth). Subsection (1) provides:

(1) No civil action, suit or proceeding lies against the following persons:

(a) the Director;

(b) a member of the staff of the Office;

(c) a person to whom functions or powers are delegated under section 31;

in relation to an act done, or omitted to be done, in good faith by the person in the performance or exercise, or the purported performance or exercise, of any function, duty or power under, or in relation to, this Act.

85. I agree with the defendants that it is groundless to assert that the CDPP or staff employed by her did not act in good faith. The frank disclosure of the material in open Court during the trial (albeit only on day 51) was done in good faith. The statutory immunity would preclude any damages being awarded against the CDPP in the Damages Proceeding.

CONCLUSION

86. Ultimately, the contentions made by the plaintiff are wholly without merit and misconceived in their response to the Notices of Motion. The proceedings initiated by the plaintiff are an abuse of process. They are productive of unjustified trouble or harassment. I am satisfied that the defendant has demonstrated that there is a high degree of certainty that the ultimate outcome of the proceeding would be that the plaintiff’s claims would be dismissed. It is so obviously untenable that the claims cannot succeed. In these circumstances, both the Declarations and Damages Proceedings must be dismissed.

ORDERS

87. In relation to the proceedings commenced by Summons (2021/00165729, the Court makes the following orders:

1. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed generally on the basis that the proceedings are an abuse of process of the Court.

2. The plaintiff is to pay the defendant’s costs of this motion and of the proceedings.

3. Any future listings are vacated.

88. In relation to the proceedings commenced by Statement of Claim (2021/00165953), Court makes the following orders:

1. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed generally on the basis that the proceedings are an abuse of process of the Court.

2. The defendant is relived of the obligation to file a Defence in the proceedings.

3. The plaintiff is to pay the defendant’s costs of this motion and of the proceedings.

4. Any future listings are vacated.

**********

Decision last updated: 04 October 2022