Palmer v No Respondent

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0096

MICHAEL GARETH PALMER	Applicant
v
NO RESPONDENT	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 322
JUDGMENT APPEALED FROM:	[2023] VSC 458 (Tsalamandris J)

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TAXATION – Income tax – Judgment against applicant for in excess of $2m for unpaid income tax – Attempt by applicant to file judicial review proceeding – Proposed judicial review proceeding constituting an abuse of process – Application for leave to appeal from primary judge’s refusal to direct Prothonotary to accept and seal proposed originating motion – Application for leave to appeal having no prospects of success – Pseudo-legal gibberish – Mumbo jumbo – Application for leave to appeal totally without merit – Application for leave to appeal refused.

Supreme Court Act 1986, ss 14C and 14D.

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Counsel
Applicant:		Unrepresented
Respondent:
Solicitors
Applicant:
Respondent:

BEACH JA:

In June 2018, the Deputy Commissioner of Taxation (‘the Deputy Commissioner’) commenced a proceeding in the County Court against Michael Gareth Palmer (‘the applicant’) seeking to recover $1,019,524.20 plus penalty amounts totalling $561,723.33. The Deputy Commissioner alleged that the applicant had paid no income tax for the nine year period from 1 July 2007 to 30 June 2016.
The applicant’s initial responses to the Deputy Commissioner’s proceeding are catalogued in a judgment of Tran JR (as her Honour then was) in Deputy Commissioner of Taxation v Michael Palmer.[1] They included filing a conditional appearance and sending a document entitled ‘Notice to Show Cause’ addressed to Tran JR, requiring her ‘to show Just Cause with respect to’ (amongst other things):
1.The County Court of Victoria being a court that complies with Chapter III of the Commonwealth Constitution, under the Crown of the United Kingdom.
2.The presiding Judge proving that he/she has sworn an oath to the Queen of the United Kingdom.
3.The County Court Civil Procedure Rules 2008 complying with a Parliamentary Order as per section 87 of the Judiciary Act 1903 (Cth).[2]
[1][2019] VCC 1401 (‘Reasons of Tran JR’).
[2]For completeness, I should note that, of course, the applicant had no entitlement to send any such notice to Tran JR, nor any entitlement to require any judicial officer ‘to show cause’ of anything or to prove that he or she has sworn any oath.
After various communications with the County Court, and a directions hearing, the applicant made an application for the summary dismissal or striking out of the Deputy Commissioner’s claim, ‘with prejudice, on the grounds that it is frivolous, vexatious and an abuse of process, and … is, in its entirety a legal nonsense’. In this application, the applicant also claimed ‘costs and damages’.
The applicant’s application was heard by Tran JR on 27 May 2019.[3] Amongst the arguments the applicant advanced at this hearing was that the Deputy Commissioner’s proceeding should be struck out on the basis that:
the “Michael Gareth Palmer” referred to in the Writ and Statement of Claim must be a corporation or artificial entity, which is not the person who made submissions today in Court, known as Michael Gareth Palmer.
[3]Additional written submissions were filed on 11 and 24 June, and 12, 14 and 16 August 2019.
On 3 September 2019, the judicial registrar delivered 19 pages of reasons,[4] dismissing the applicant’s application.
[4]Tran JR’s Reasons.
The Deputy Commissioner’s proceeding then appears to have lain dormant for a few years (perhaps because of COVID). Nevertheless, the applicant was dissatisfied with Tran JR’s decision, and sought a review before a judge.
On 14 November 2022, pursuant to an order made on 3 November 2022, the application to review Tran JR’s decision and the trial of the substantive proceeding came on for hearing before Judge Macnamara. Four days were set aside for the hearing of the review application and the trial. In the result, the review application and the trial were all conducted within one day (14 November 2022) — albeit that the hearing occupied 150 pages of transcript. The flavour of this hearing can be gleaned from the applicant’s announcement of his appearance to the judge. In response to the judge’s seemingly innocuous statement, ‘And Mr Palmer, you represent yourself’, the applicant said:
I’m Michael, and we are that person’s personal representative in private capacity in being. We appear under duress as the beneficiary of that constructive estate to ensure that that estate is not unlawfully damaged. We act as the mind, body, spirit in being and we are here as an inquirer, first and foremost, in respect of jurisdiction.
On 22 November 2022, Judge Macnamara delivered 29 pages of reasons,[5] in which he addressed the evidence and the applicant’s submissions (in commendable detail), before dismissing the applicant’s application and determining that judgment should be given in favour of the Deputy Commissioner ‘for the total of the amounts certified as being due and payable … as at 11 November, namely, $2,241,339.76’.[6] On 27 January 2023, his Honour made orders accordingly, including that ‘there be judgment for [the Deputy Commissioner] against [the applicant]’ in that sum.
[5]Deputy Commissioner of Taxation v Palmer (No 2) [2022] VCC 2001 (‘Reasons of Judge Macnamara’).
[6]Reasons of Judge Macnamara, [99].
On 27 March 2023, the applicant attempted to file an originating motion in the Supreme Court seeking judicial review of Judge Macnamara’s decision. The originating motion sought, amongst other things, that his Honour’s orders ‘be declared null and void or, alternatively, quashed’. He also sought an order, ‘by way of judicial writ of mandamus’, that:
the claimed debt, purportedly owed by the Plaintiff/Applicant to Child Support Services, based on the figures created by the Deputy Commissioner of Taxation in this matter, be extinguished/declared null and void and un-enforceable.
The applicant’s proposed originating motion contained five proposed grounds of review. Within these proposed grounds, 36 errors of law allegedly made by Judge Macnamara were identified. These included:
•‘failing to establish jurisdiction over a subject of the Crown, separate from the Holy See of Rome, as dictated by the 1688 Bill of Rights’;
•‘failing to establish jurisdiction over a living, breathing man, a de jure solemn et naturale’;
•‘failing to establish the source and fountain of justice that flowed through the court that was operating within Australia’s Constitutional Monarchy’;
•‘stating that the Court was operating under the title of the “King of Australia”, but then ignore[ing] the fact that there was no instrument at law that established that title to be used in relation to Australia and its territories, which extends to the State of Victoria’;
•‘ignoring the fact that the subject of the Crown clearly stated that he did not agree, or consent, to act as surety for the Defendant entity’; and
•‘ignoring evidence — by way of the County Court of Victoria Annual Report — that the County Court was a trading corporation operating under a trading name with an ABN, and could not make lawful orders’.
On 4 April 2023, the Prothonotary informed the applicant that he had rejected the applicant’s proposed filing and that he had refused to seal the originating motion. The Prothonotary provided detailed reasons for that decision in a letter dated 3 April 2023. In short, the Prothonotary advised the applicant that each of the applicant’s grounds were ‘doomed to fail’ and that his application for judicial review was ‘sufficiently irregular as to warrant refusal’.
Following the Prothonotary’s decision refusing to seal the applicant’s originating motion, the applicant sought a direction from the Court to the Prothonotary to seal and accept the document pursuant to r 28A.04(5) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). That application came before Tsalamandris J sitting in the Practice Court for a determination on the papers.
On 4 August 2023, her Honour made an order dismissing the applicant’s application for a direction to the Prothonotary, and an order directing the Prothonotary (pursuant to r 28A.04(2) of the Rules) to refuse to seal the applicant’s proposed originating motion.[7] Having carefully considered the Reasons of Judge Macnamara, together with the proposed originating motion,[8] her Honour concluded that each of the applicant’s proposed grounds of appeal was bound to fail,[9] his proposed originating motion was an abuse of process,[10] and that the Prothonotary was correct not to seal it.[11]
[7]Re Palmer [2023] VSC 458 (‘Reasons of Tsalamandris J’).
[8]Reasons of Tsalamandris J, [24].
[9]Ibid.
[10]Ibid [27].
[11]Ibid.
On 14 September 2023, the applicant filed an application for leave to appeal to this Court, together with a written case, a list of authorities and a summary for the Court of Appeal. The application for leave to appeal identifies six proposed grounds of appeal as follows:
1.The Justice has misunderstood and/or misinterpreted what actually occurred at the County Court on the 14th of November 2022, being the matter which judicial review of is sought.
2.The Justice in chambers has misunderstood and/or misinterpreted what the County Court Judge actually ‘held’ on the 14th of November 2022, being the matter which judicial review of is sought.
3.Whilst the Justice in chambers has correctly identified the 5 grounds for judicial review, he has erred in law when making his decision in respect of each of those grounds.
4.The conclusion of the Justice in chambers is fundamentally flawed, as there is no lawful basis for the conclusions arrived at based on the misunderstanding and misinterpretation of what occurred in the County Court on the 14th of November 2022 – being the matter which judicial review of is sought – and the errors in the application of the law with respect to the 5 grounds of judicial review.
5.The Justice in chambers himself refers to a case that dictates that, except in exceptional circumstances, a refusal to file a proceeding would constitute an abuse of process of the court but then proceeded to uphold the refusal to file, without establishing any exceptional circumstances and knowing that there was no opportunity for the grounds to be fully ventilated by way of oral argument, which is a basic legal right that should be afforded to any litigant and, most importantly, to a self-represented litigant, especially when seeking something as important as a judicial review of a decision made by an entity exercising governmental power, as specifically referred to in the case referenced by the Justice in chambers.
6.The analysis of the Justice in chambers is fundamentally flawed and contains outlandish statements that have no basis in law and/or factually incorrect.
Pursuant to r 64.15(1) of the Rules, the Registrar of the Court of Appeal has referred the application for leave to appeal to a single Judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar’s referral, and notwithstanding the applicant’s request for an oral hearing, I considered that it was neither necessary nor desirable to have an oral hearing of the application.[12]
[12]See rr 64.15(2) and (5) of the Rules, and s 14D(1) of the Supreme Court Act 1986.

Consideration

The applicant was right to refer to the passage in Deane J’s judgment in Staats v United States of America,[13] that:
The rule of law which permeates our system of government requires that all persons have access to the courts of the land. That principle is at its most important in a case where proceedings against government and those exercising governmental power are involved.[14]
But as his Honour went on to say:
Nonetheless, considerations of justice, the interests of plaintiffs themselves and the public interest combine to require that there be procedures for ensuring that a court can prevent the institution or maintenance of frivolous or vexatious proceedings.[15]
[13](1992) 66 ALJR 793.
[14]Ibid.
[15]Ibid.
Similarly, there must be (and, in fact, are) procedures for ensuring that a court can prevent the institution of proceedings which, if issued, would be an abuse of process. Rule 28A.04 provides one such procedure.
The applicant’s proposed originating motion, if accepted for filing and sealed, would undoubtedly be an abuse of process. Tsalamandris J was entirely correct to so conclude. None of the applicant’s proposed grounds of review or errors of law asserted in the originating motion have any prospect of success. Much (if not the great bulk) of the applicant’s submissions and contentions are pseudo-legal gibberish. They appear to be founded on delusional arguments which have been comprehensively rejected whenever they have been advanced in the past.[16]
[16]See, for example, Stefan v McLachlan [2023] VSC 501, [25]–[29] (John Dixon J). See also, Bradley v The Queen [2020] QCA 252, where Sofronoff P (with whom Mullins JA and Bodice J agreed) referred to the ‘citizen sovereign’ arguments advanced in that case as ‘a jumble of gobbledygook’.
Notwithstanding the absurdity of many of the applicant’s arguments, both Tran JR and Judge Macnamara patiently engaged with them in an attempt to explain to the applicant why his contentions had no foundation in law or reality. With respect, they are to be commended for their patience and the detail in which they engaged with some of the applicant’s submissions.
Moreover, to the extent that the applicant complains about Tran JR or Judge Macnamara (and more particularly Judge Macnamara) failing to address various aspects of his submissions in their reasons, there is no substance in those complaints. By way of example, it is difficult to know how any judicial officer could respond sensibly to a contention that the defendant named in the Deputy Commissioner’s writ ‘must be a corporation or artificial entity, … not the person who made [oral] submissions … in court, known as Michael Gareth Palmer’ — perhaps other than to say that if the person in court was not the person named in the writ, then he had no business being in court and advancing submissions in relation to the Deputy Commissioner’s proceeding. As to what a sensible response might be to the applicant’s statement to Judge Macnamara, that ‘I’m Michael, and we are that person’s personal representative in private capacity in being …’,[17] is anybody’s guess.
[17]See [7] above.
Contrary to the applicant’s proposed grounds of appeal and written case in this court, there is no basis for contending that Tsalamandris J misunderstood or misinterpreted what actually occurred during the hearing before Judge Macnamara. While the applicant advanced various arguments to the effect that Judge Macnamara did not actually conduct a full hearing of the Deputy Commissioner’s proceeding, the transcript of 14 November 2022 shows the contrary. There is no doubt that a full hearing was conducted; nor any doubt that Judge Macnamara was entitled to conduct that hearing at the same time as he heard the applicant’s strike-out application; nor any doubt that his Honour was entitled to rule on the application at the same time as giving reasons for judgment on the claim; nor any doubt that his Honour was entitled to make the order he made on 27 January 2023; nor any doubt about the correctness of that order.
Similarly, there is no merit in any of the other arguments made in the proposed grounds of appeal and written case. When one examines all of the material, it is plain that the only conclusion Judge Macnamara could reasonably have come to following the hearing on 14 November 2022 was that there should be judgment for the Deputy Commissioner on the claim for the reasons he gave. That being so, the judicial review proceeding the applicant attempted to institute was (apart from its other manifest defects in the assertion of some arguments that were at best mumbo jumbo) one which could only be described as foredoomed to fail, and thus an abuse of process.
Finally, I should note that in the heading of the various documents filed by the applicant in this Court on 14 September 2023, the applicant is described as ‘Michael Gareth Palmer a subject of the King of the United Kingdom’. No doubt this was done in order to provide some support for one or more of the various submissions made to the courts below and/or in support of one or more of the many errors of law for which the applicant now contends. It is sufficient to say that the addition of the words ‘a subject of the King of the United Kingdom’ does not make the applicant’s proposed appeal to this Court any more or less arguable.[18]
[18]The identification of the respondent in the documents as ‘no respondent’ appears to have come from the cover sheet of the Reasons of Tsalamandris J. Perhaps the better course would have been to identify the parties named in the proposed originating motion as the defendants in the court below and the respondents in this Court. Nothing turns on this, however, and no more needs to be said about it.
The applicant’s proposed appeal from the orders made by Tsalamandris J has no prospects of success. It having no prospects of success, leave to appeal must be refused.[19] Additionally, the application for leave to appeal is ‘totally without merit’ within the meaning of s 14D(3) of the Supreme Court Act1986.[20]
[19]See s 14C of the Supreme Court Act 1986.
[20]By reason of s 14D(3) of the Supreme Court Act 1986, the determination of the application for leave to appeal is totally without merit and precludes the applicant from any right to apply to have the dismissal of his application for leave to appeal set aside or varied.

Conclusion

For the reasons given above, the application for leave to appeal will be refused.
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[2023] VSCA 322

15 December 2023