Re Palmer
[2023] VSC 458
•4 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S ECI 2023 01310
| IN THE MATTER of a proposed proceeding | |
| BETWEEN: | |
| MICHAEL PALMER | Proposed Plaintiff |
| v | |
| NO RESPONDENT | Proposed Defendant |
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JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 4 August 2023 |
CASE MAY BE CITED AS: | Re Palmer |
MEDIUM NEUTRAL CITATION: | [2023] VSC 458 |
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PRACTICE AND PROCEDURE – Refusal by Prothonotary to accept documents for filing as originating process – Plaintiff seeking direction to Prothonotary to accept documents – Decision of Prothonotary upheld – No direction given to the Prothonotary to accept the proposed originating process – Supreme Court (General Civil Procedure) Rules2015 (Vic), r 28A.04.
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APPEARANCES: | Counsel | Solicitors |
| For the Proposed Plaintiff | No appearance (the application being referred on the papers by the Prothonotary) | |
| For the Proposed Defendant | ||
HER HONOUR:
On 27 March 2023, the proposed plaintiff, Mr Michael Palmer, sought to file an application for judicial review against a decision of the County Court via this Court’s e-filing platform RedCrest. The originating document was a proposed originating motion dated 24 March 2023, accompanied by a sworn affidavit of Mr Palmer dated 29 March 2023.
The proposed originating motion seeks judicial review of the orders and reasons of Judge Macnamara (the primary judge) delivered on 22 November 2022. The County Court proceeding before the primary judge involved a claim by the Deputy Commissioner of Taxation for debts it claimed were owed by Mr Palmer under various Commonwealth tax enactments (the substantive proceeding), as well as an application for review of a Judicial Registrar’s refusal to summarily dismiss the claim. The primary judge upheld the decision of the Judicial Registrar and entered judgment in favour of the Deputy Commissioner for the total of the amounts certified as being due and payable by Mr Palmer (the judgment).0F[1]
[1]Deputy Commissioner of Taxation v Palmer (No 2) [2022] VCC 2001.
On 4 April 2023, the Prothonotary of this Court refused to seal or accept for filing the proposed originating motion lodged by Mr Palmer on the basis that the document was ‘substantially irregular’ in accordance with r 28A.04(2) of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules).
Mr Palmer now seeks a judicial direction from the Court to the Prothonotary to seal and accept the proposed originating motion pursuant to r 28A.04(5) of the Rules.
This request has come before me sitting in the Practice Court in the week commencing 24 July 2023 for determination on the papers. A copy of the County Court orders, the published reasons of the primary judge, and a transcript of the subject proceeding, were exhibited to Mr Palmer’s affidavit filed in support of the originating motion.
For the reasons that follow, the Prothonotary was correct to refuse to seal and accept the proposed originating motion for filing. It therefore follows that I am not persuaded to direct the Prothonotary to accept Mr Palmer’s proposed originating motion.
Procedural Background
On 19 June 2019, the Deputy Commissioner commenced a proceeding in the County Court against Mr Palmer for the claimed debt, comprising unpaid income tax, penalties and interest, totalling a sum of $1,587,646.19 (the claimed debt).
Mr Palmer filed a ‘conditional’ defence alleging, amongst other things, that the Deputy Commissioner was not lawfully appointed and was not entitled to enforce taxation laws in Australia, and that the County Court did not have jurisdiction to determine the claim. Mr Palmer also made an application for summary dismissal or strike-out of the claim on the grounds that it was frivolous, vexatious, an abuse of process, and ‘a legal nonsense’.
On 3 September 2019, Mr Palmer’s application was heard and dismissed by Judicial Registrar Tran (as her Honour then was).1F[2]
[2]DCT v Palmer [2019] VCC 1401.
Mr Palmer subsequently sought review of the Judicial Registrar’s ruling (the review application).
On 14 November 2022, the proceedings commenced before the primary judge for both the review application (conducted as a de novo hearing),2F[3] and the substantive proceeding. The primary judge ruled that as Mr Palmer relied upon the same matters in both the review application and in his defence of the substantive proceeding, and the ‘same complex issues were raised’ it was convenient for all arguments and evidence to be advanced by Mr Palmer at the outset.3F[4] The Deputy Commissioner then responded, and Mr Palmer was given a right of reply.
[3]Palmer (No 2) [58].
[4]Ibid, [8].
In respect of the review application, in short, his Honour held that:
(i) Mr Palmer’s challenge to the County Court’s jurisdiction to determine the proceedings must fail;4F[5]
[5]Ibid, [10]-[43].
(ii) Mr Palmer’s challenge to the Deputy Commissioner’s authority must fail;5F[6]
[6]Ibid, [44] and [77]-78].
(iii) as the review application proceeded as a de novo hearing, if there was an issue as to the Judicial Registrar’s jurisdiction, this was cured by having the matter determined by a judge;6F[7]
[7]Ibid, [58].
(iv) there was no break in sovereignty within Australia in 1973, and thus Mr Palmer failed to establish that laws enacted after that date were invalid;7F[8]
[8]Ibid, [61].
(v) there is no basis for Mr Palmer to contend that he is not a person, and nor can it be contended that he is outside the definition of ‘tax payer’ for the purposes of income tax legislation;8F[9]
[9]Ibid, [67].
(vi) in respect of the funeral of Queen Elizabeth II, any failure to mention her as being the ‘Queen of Australia’ does not divest the standing of the Royal Style and Titles Act 1973 (Cth);9F[10]
[10]Ibid, [69].
(vii) there was no invalidity in the title of the proceedings, and in particular the name of the plaintiff, as Deputy Commissioner;10F[11]
(viii) there was no operative objection or appeal process in progress relative to the claimed debt.11F[12] However, even if there was, this would not constitute a bar to the continuation of the proceeding;12F[13] and
(ix) in the event it was accepted that an officer of the Australian Taxation Office (the ATO) informed Mr Palmer that he could be removed from ‘the tax roll’ and not lodge tax returns (a claim about which the primary judge was highly sceptical), there can be no estoppel by representation in public law and this would not have any effect on Mr Palmer’s tax liability.13F[14]
[11]Ibid, [82]
[12]Ibid, [85].
[13]Ibid, [86].
[14]Ibid, [88].
In view of the above, on 22 November 2022 the primary judge dismissed the review application.
In respect of the substantive proceeding, the primary judge accepted the Deputy Commissioner’s submission that evidence as to the claimed debt was conclusive, and that it was not open to Mr Palmer to challenge the validity of assessments of taxation in the proceedings before the court. The primary judge noted that Mr Palmer’s submissions went to the standing of those involved in issuing the assessments, and not the accuracy of the figures assessed. The primary judge rejected such submissions, and ordered judgment in favour of the Deputy Commissioner.14F[15]
[15]Ibid, [98]-[99].
On 27 January 2023, the primary judge ordered judgment against Mr Palmer in the sum of $2,241,339.76, that being the total certified amounts payable as at 11 November 2022 (the judgment debt).
Proposed originating motion
Mr Palmer now seeks judicial review of the judgment, and in doing so sought to file the documents the subject of this decision. Mr Palmer’s proposed originating motion claims the following relief:
1.That, by way of prerogative writ of certiorari, the order of Judge Macnamara, of the County Court of Victoria, on 27 January 2023, be judicially reviewed pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, and be declared null and void or, alternatively, quashed.
2.That, by way of an order of prohibition, the order of Judge Macnamara, of the County Court of Victoria, on 27 January 2023, be judicially reviewed pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, and be declared null and void on the grounds that jurisdiction had been assumed, not established.
3.In the alternative, that the order of Judge Macnamara, of the County Court of Victoria, on 27 January 2023, be judicially reviewed pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, and be set aside and referred back to the County Court for an actual trial and determination.
4.That, by way of judicial writ of mandamus, an order be made for all enforcement action taken against Michael Gareth Palmer by the Deputy Commissioner of Taxation, in breach of s.81 of the Commonwealth Constitution, to be reversed, and compensation be awarded to the Plaintiff/Applicant.
5.That, by way of judicial writ of mandamus, 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.
Mr Palmer seeks to rely upon five grounds of review, which can be summarised as follows:
(1) The judge erred at law by failing to establish the court’s jurisdiction so the matter could proceed;
(2) The judge erred at law by failing to establish the jurisdiction of the Judicial Registrar to make valid, lawfully binding orders in a court exercising Federal jurisdiction;
(3) The judge erred at law by failing to establish the legal standing of the alleged Deputy Commissioner and their representatives;
(4) The judge erred at law in that, by failing to conduct an actual trial of the matter before issuing a final order, his Honour ignored the requirement for procedural fairness; and
(5) The judge erred at law by misinterpreting the law and rulings of higher courts and/or giving them undue weight and attention, contrary to the doctrine of stare decisis.
The Prothonotary’s reasons
By letter dated 3 April 2023, the Prothonotary informed Mr Palmer of its refusal to accept the documents (Reasons for refusal). The Reasons for refusal address each of Mr Palmer’s five grounds of review and relevantly state:
3.The grounds for this review are loosely set out in five submissions. It is imperative to review each of the grounds. If any one of the grounds could reasonably be argued before this court then the proposed documents should be accepted for filing, even if the remaining grounds are frivolous, irregular or an abuse of process.
Ground 1
4.The first ground argues that the “Judge erred at law by failing to establish the jurisdiction of the court”. The argument postures that the applicant is a “subject of the Crown” and a “living breathing man, a de jure solemn et naturale”. This argument seems to assert that the court has an onus to prove they have jurisdiction to hear and determine a matter involving a person who claims to be a subject of the Crown.
5.No such burden of proof is required. The County Court clearly has power to hear civil matters under numerous Acts of Parliament not the least of which being the County Court Act 1958. No individual can select to stand outside of the reach of the court’s power.
6.The absurdity of this claim is perhaps best exemplified by the fact that the applicant seeks to rely on the powers of Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (The Rules) to review a decision of the County Court. If the applicant is correct that the County Court has no inherent power to hear a matter involving a subject of the crown, then nor can the Supreme Court.
7.Furthermore, if this court has no jurisdiction, then I too would have no power as Prothonotary to assess any proposed documents pursuant to r28A.04(2) of the Rules. I am convinced that my power to assess these documents is enlivened by the Rules and triggered by the applicant seeking to file an originating motion. Similarly, I see no merit in the argument that the County Court had any impediment to jurisdiction over the applicant.
Ground 2
8.This ground argues that the Judicial Registrar (JR) who heard an interlocutory application, did not have jurisdiction because part or all of the jurisdiction of that hearing was Federal. If the JR had no power to hear the interlocutory application then the orders referring it for trial could not have been made.
9.This is similar to the first grounds in that it seeks to disqualify a judicial officer from making ordinary and uncontroversial decisions. Claiming that there is a constitutional issue elevating this to a Federal matter is querulous and nonsensical. The applicant has not identified any jurisdictional issue by the JR.
10.It should be noted that the Judgment of Judge Macnamara indicates that the application by Mr Palmer to the JR for summary dismissal was never finally determined by Judicial Registrar Tran so it is difficult to see how the jurisdiction of the JR could in any way affect the outcome of the trial. The JR did not exercise any Federal powers.
Ground 3
11.The third ground seeks to challenge the legal standing of the Deputy Commissioner of Taxation who was the plaintiff in the County Court proceeding. The applicant elaborates various arguments including distinctions between “appointed” power and “delegated” power, constitutional restraints and a failure by the legal representatives to provide a copy of their oath consistent with the Imperial Acts Application Act 1922.
12.The applicant fails to offer any cogent or even arguable submissions that could lead to a conclusion that the plaintiff at the County Court lacked the authority to litigate an application to pay outstanding taxation debts.
Ground 4
13.The applicant claims that the “Judge erred at law by ignoring the requirement for procedural fairness by failing to conduct an actual trial of the matter”. There are spurious claims about failing to return to the trial after adjourning “sine die” which should be and is discounted.
14.On the face of it, there is a better argument regarding witnesses by affidavit not being made available for cross examination. Even this argument though is unfounded as is pointed out by Judge Macnamara. At paragraph 92 of His Honour’s judgment, he quotes Bongiorno J in Deputy Commissioner of Taxation v Lever [2001] VSC 114;
“The Deputy Commission of Taxation enjoys a number of procedural advantages over ordinary litigants conferred upon him by the legislation which permits tax to be collected and arranges for the mechanism to do so. One of those advantages is the ability to conduct a trial of this nature on affidavit,”
15.The transcript of the trial before Justice Macnamara indicates that at no point did Mr Palmer seek leave to cross examine affidavit evidence. That request was therefore never refused. No right was repudiated.
Ground 5
16.The final ground is perhaps the most absurd and difficult to follow. The applicant claims that “The Judge erred at law by misinterpreting the law and rulings of higher courts, and / or giving them undue weight and attention.”
17.This proposed ground once again seems to challenge the jurisdiction of the court. The applicant references the distinction between the Queen of the United Kingdom and the Queen of Australia; the ‘defacing of the Great Seal of the Commonwealth of Australia’; the failure to accept Mr Palmer’s irregular interpretation of the word, “person”; and the relevance of the “subject of the Crown’s family crest, evidencing his traceability back to the true Crown of the United Kingdom of Great Britain and Ireland.”
18.None of these arguments either alone or in combination provide any salient argument which could form the basis for the orders sought.
The Reasons for refusal then conclude:
19.If each of the grounds above are doomed to fail, then the application for judicial review is sufficiently irregular as to warrant refusal. In my opinion, the applicant has not presented any grounds for review that could reasonably be assessed as sufficiently robust as to create any hope that the court would grant the relief sought.
20.Further, the proposed proceeding has the potential, perhaps unintentionally, to embarrass the Victorian legal system by questioning the jurisdiction of the County Court. The rule of law in Victoria and Australia would be diminished by certain citizens not being subject to the various laws and authorities established by Acts of Parliament.
Relevant legislation and authorities
The powers of the Prothonotary to refuse to accept a document filed in RedCrest are provided by r 28A.04(2):
(2)The Prothonotary or the Registrar may reject a document if the Prothonotary or Registrar considers that—
(a)a document, if it were sealed, would be substantially irregular or constitute an abuse of process; or
(b)there has been a failure to comply with the Rules, an order of the Court or a direction of the Prothonotary or the Registrar after a reasonable opportunity to do so.
In circumstances where the Prothonotary rejects a document under r 28A.04(2), the exercise of the Court’s power is provided by r 28A.04(5), which states:
(5) If the Prothonotary or the Registrar—
(a) fails to seal a document within a reasonable time; or
(b) refuses to seal a document; or
(c) rejects a document—
the Court may—
(d)direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document was first submitted in RedCrest for filing;
(e)direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document is so sealed;
(f)make any other order or give any direction that it considers appropriate.
In Staats v United States of America15F[16] Deane J outlined the principle underlying the power of a court to refuse the filing of a proceeding which would constitute an abuse of process of the court:
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.
…
Nonetheless, considerations of justice, the interests of plaintiffs themselves and the public interest combine to require that there be procedures for insuring that a court can prevent the institution or maintenance of frivolous or vexatious proceedings. The interests of justice demand that a defendant (and those who are alleged to have acted unlawfully on behalf of a defendant) be protected from the cost, time and personal stress involved in defending such proceedings. The experience of those involved in the administration of justice in this country is that a plaintiff who persists in bringing hopeless proceedings is commonly convinced of the righteousness of his or her cause and will suffer increased stress, damage to health and, commonly, financial ruin if proceedings which are clearly foredoomed to fail are not halted at the outset. The public interest demands that court time and facilities, particularly the very limited time and facilities of this Court, are not devoted to pointless and misconceived litigation to the detriment of genuine disputes.16F[17]
[16](1992) 66 ALJR 793.
[17]Ibid, 793.
I note the recent comments of John Dixon J in Austin v Dwyer & Ors:17F[18]
The task of the Prothonotary under… [r] 28A.04(5) (in respect of documents filed by RedCrest) is administrative, to ensure compliance with court rules and processes. In the first instance, the inquiry is whether the process is regular, that is in conformity with the requirements of the Rules. To the extent that it might be said the process is an abuse, no adjudication on the merits of any issue raised or determination of any preliminary dispute is required. If there is an arguable basis for permitting filing it should be allowed. ‘Grave doubts’ about a plaintiff’s claim will not be sufficient, rather it must be obvious without argument that the claim is untenable.
The decision whether to direct the Prothonotary to seal originating process concerns only the document as presently formulated and not some amended form of the originating motion.
In determining whether a proposed proceeding is hopeless or its prospects of success are fanciful, the impact of the proposed proceeding on the proposed defendants can be a relevant factor. Hopeless and vexatious litigation is a burden upon the persons against whom such litigation is brought. The Court, which is a public resource, is required to be available for the hearing and determination of cases of real substance. In rare and exceptional cases, the court will protect the administration of justice generally by refusing to receive documents that would constitute an abuse of process.18F[19]
[18][2023] VSC 76.
[19]Ibid, [13]-[16] (citations omitted).
Analysis
Having carefully considered the primary judge’s reasons, together with the proposed originating motion, I am satisfied that each of Mr Palmer’s grounds of review are bound to fail. There is no arguable case in respect of any of the points he seeks to raise.
The primary judge dealt in considerable detail with Mr Palmer’s extensive submissions which challenged the jurisdiction of the County Court, and the legitimacy of the proceedings issued by the Deputy Commissioner. This included an analysis by the primary judge of a multitude of authorities and other extraneous material Mr Palmer relied upon. There is no basis for Mr Palmer to contend that the primary judge acted contrary to the doctrine of stare decisis. I note there is no detail in the proposed originating motion as to what decision the primary judge was bound (and failed) to follow. There is no basis to contend that the primary judge ignored the requirement of procedural fairness. The primary judge ruled that he would hear both applications together, that Mr Palmer could call evidence, and that he would have the right to reply to the Deputy of Commissioner’s submissions. Mr Palmer’s proposed grounds of review are a querulous attempt to reagitate his fanciful assertions properly dismissed by the primary judge.
In my view, the proceeding seeking to be brought by Mr Palmer is properly categorised as misconceived, without merit and is bound to fail. Hopeless litigation is a burden upon the person against whom such an action is brought. It also unnecessarily wastes court time and facilities, and diverts limited resources away from genuine disputes. Whilst I acknowledge the right of all persons to have access to the courts, the Prothonotary was correct in refusing to accept the proposed originating motion. This is one of the rare cases in which it would be pointless to allow the case to proceed.
Conclusion
For the aforementioned reasons, Mr Palmer’s proposed originating motion is an abuse of process and the Prothonotary was correct not to accept it. Therefore, I will decline the direction sought by Mr Palmer.
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