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HIGH COURT OF AUSTRALIA

Dooney v Henry

[2000] HCA 44

Callinan J

24 August 2000 - Canberra

Callinan J.    In these matters, which I have heard together, the plaintiffs have delivered Statements of Claim which all seek substantially the same relief and raise the same points for decision. In every case a Reply has also been delivered, and these also raise similar issues for determination. The defendants, who are the applicants in these matters, take no point on the attempt to raise by way of Reply, rather than by Statement of Claim, further issues.

  2  In every case, the defendant (the applicant) has issued a summons seeking orders substantially as follows:

   

 1.  the statement of claim be struck out on the ground that the Plaintiff has no standing to bring the action;
 2.  in the alternative, the statement of claim be struck out on the ground that it does not disclose a reasonable cause of action;
 3.  in the further alternative, the statement of claim be struck out on the basis that it is unnecessary or that it may tend to prejudice, embarrass or delay the fair trail [sic] of the action;
 4.  the action be struck out on the basis that it is frivolous or vexatious;
 5.  alternatively, the action be dismissed or permanently stayed on the basis that the issues raised in the statement of claim are or could be raised in existing proceedings in another court …
 6.  alternatively, such further or other orders or directions in relation to the further conduct of this action, including an order that it be remitted to the Federal Court of Australia for hearing and determination;
 7.  the plaintiff pay the costs of and incidental to this application and, as the case may be the action, including, if the Court or Justice thinks fit, an order that those costs be paid as between solicitor and client.

  3  It is convenient to start with, as an exemplar, the prayer for relief in the Statement of Claim of the plaintiff (the respondent) in Vincent Morgillo v Spencer Ross De Vere.[1] Six orders are sought:

   

 1.  That the Defendant be prohibited from acting for any person illegally delegated contrary to s 8(1) of the Taxation Administration Act 1953 (Cth) (TAA) and s 34AB(b) of the Acts Interpretation Act 1901 (Cth) in the preparation, issuing, maintenance and prosecution of proceedings in any court for any reason or in the seeking of moneys from any person, company or fund under the instructions of such illegally delegated persons.
 2.  That any Winding Up orders obtained by the presentation to any court by the Defendant acting as a person illegally claiming to be a delegate of Stephen Chapman or the Deputy Commissioner of Taxation or both be set aside.
 3.  In the event of a Winding up Order or Orders being set aside that an order for full restitution be made against the Defendant.
 4.  That costs be awarded on an indemnity basis against any person or persons acting under purported delegations contrary to law and against any person knowingly acting on behalf of such person or persons to the detriment of the Plaintiff.
 5.  A declaration that the [Australian Taxation Office] is a body without legal persona.
 6.  Damages to be assessed.

  4  It is alleged in Vincent Morgillo v Spencer Ross De Vere that the plaintiff is a director of a company, Shercorp Pty Ltd,[2] upon which a Deputy Commissioner of Taxation, Stephen Chapman, caused to be served a Statutory Notice of Demand said to be pursuant to s 459 of the Corporations Law. The demand was for income tax payable by the company. There could be no doubt that the tax in question was payable, because it was tax shown and accepted as being payable by the company in its annual income tax return. But in any event there is a self-assessment provision in s 166A of the Income Tax Assessment Act 1936 (Cth) (the ITAA 1936) which deems such a return to be an assessment. That section relevantly provides:

   

Deemed assessment

 

(1) Where a taxpayer that is a relevant entity within the meaning of Division 1B of Part VI furnishes a return in respect of income of a year of income to which that Division applies:

 (a)  the Commissioner is taken to have made, on the day on which the return is furnished, an assessment of the relevant taxable income or net income, as the case may be, and of the tax payable on that taxable income or net income, being those respective amounts as specified in the return …

  5  It is alleged in the Statement of Claim that the Statutory Notice of Demand was defective because it was not issued by the Deputy Commissioner personally, or, as I read the pleading, by a person under a lawful delegation to do so. Other allegations are made: that the debt referred to in the Notice was not the subject of any attempt to establish it in a court of law; and, that no Notice of Assessment as required by s 177 of the ITAA 1936 was issued.

  6  There then follows an allegation, purportedly supported by a number of particulars, which need not be repeated, that the ATO is a body without a legal existence.

  7  This last allegation, and the misconceived claim for relief in respect of it (prayer 5), can be immediately disposed of. The ATO is not a legal personality, the applicant does not contend that it is, and whether the ATO is, or is not a legal personality, is not a matter of the slightest relevance to any issue or efficacious remedy that might be available to the respondent.

  8  Other of the allegations can be equally, quickly disposed of. Section 459E of the Corporations Law, the section which the respondent incorrectly identified as s 459, does not require that a Statutory Notice of Demand be supported by a judgment. It relevantly provides as follows:

   

Creditor may serve statutory demand on company

 

(1) A person may serve on a company a demand relating to:

 (a)  a single debt that the company owes to the person, that is due and payable and whose amount is at least the statutory minimum; or
 (b)  2 or more debts that the company owes to the person, that are due and payable and whose amounts total at least the statutory minimum.

 

(2) The demand:

 (a)  if it relates to a single debt - must specify the debt and its amount; and
 (b)  if it relates to 2 or more debts - must specify the total of the amounts of the debts; and
 (c)  must require the company to pay the amount of the debt, or the total of the amounts of the debts, or to secure or compound for that amount or total to the creditor's reasonable satisfaction, within 21 days after the demand is served on the company; and
 (d)  must be in writing; and
 (e)  must be in the prescribed form (if any); and
 (f)  must be signed by or on behalf of the creditor.

 

(3) Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:

 (a)  verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and
 (b)  complies with the rules.

 

(4) A person may make a demand under this section relating to a debt even if the debt is owed to the person as assignee.

  9  Neither does a Statutory Notice of Demand need in any way, as alleged by the respondent, to be preceded by any attempt to prove it in a court of law, and it is certainly not for a creditor, as the Commonwealth of Australia is, to go out to seek evidence of the insolvency of a company before serving a Statutory Notice of Demand, a matter which is also alleged in the respondent's pleading.

  10  There are only 2 other matters outstanding on the Statement of Claim. The first is a contention that the foundation for any winding-up proceedings is unsound because there has been an unlawful sub-delegation by a Deputy Commissioner of Taxation whose facsimile signature has been applied to the Statutory Notice of Demand. In O'Reilly v State Bank of Victoria Commissioners[3] Gibbs CJ said:[4]

   

The question whether s 264[5] requires that the Commissioner (or his delegate) should personally sign the notice in writing is simply one of construction. In In re Whitley Partners Ltd,[6] Bowen LJ said:

   

In every case where an Act requires a signature it is a pure question of construction on the terms of the particular Act whether its words are satisfied by signature by an agent. In some cases on some Acts the Courts have come to the conclusion that personal signature was required. In other cases on other Acts they have held that signature by an agent was sufficient. The law on the subject is thus summed up by Blackburn J in Reg v Justices of Kent:[7] "No doubt at common law, where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it; nevertheless there may be cases in which a statute may require personal signature". Quain J then says, "We ought not to restrict the common law rule, qui facit per alium facit per se, unless the statute makes a personal signature indispensable".

There can be no doubt that as a general proposition at common law a person sufficiently "signs" a document if it is signed in his name and with his authority by somebody else, but if by statute a document has to be personally signed the duty of signing cannot be delegated to a third person: see London County Council v Agricultural Food Products Ltd.[8] Exactly the same principles apply when the power is given by statute to a designated person to issue a notice. The notice may be given by the authorized agent of the designated person, whose act will be the act of the principal, unless the statute on its proper construction requires the notice to be issued only by the person who is designated.

  11  Later his Honour added:[9]

   

Section 264 confers on the Commissioner a power whose exercise will be likely adversely to affect rights of individuals. This is a reason for inclining in favour of the view that it must be exercised personally. On the other hand, that section, and a number of other sections of the Act, confer on the Commissioner powers which may be expected to be exercised in myriads of cases. Those other sections include ss 166-169, 170 and 174, which give power to make and amend assessments and to serve notice of assessments. Since there are literally millions of taxpayers (according to Year Book Australia 1982 at 577, there were over 5.6 million individual taxpayers in the year 1979-80) it would reduce the administration of the taxation laws to chaos if the powers conferred by those sections could be exercised only by the Commissioner or a Deputy Commissioner personally. It can not be supposed that the Parliament intended such a result. By s 13 of the Act any reference in the Act to the Commissioner is deemed to include, in respect of matters as to which a Deputy Commissioner has exercised any power or function conferred upon him by delegation, a reference to that Deputy Commissioner. The power of delegation conferred by s 8(1) of the Taxation Administration Act 1953 (Cth), as amended, enables the Commissioner to make a delegation "to a Deputy Commissioner of Taxation or other person". In Re Reference Under Ombudsman Act 1976 (Cth), s 11,[10] Brennan J said that "The practical administrative necessity which warrants an authority's exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other." The existence of a power to delegate is of course an important consideration in deciding whether the designated authority may act through an authorized agent. However, the fact that the Act itself contemplates that the delegation will be to a Deputy Commissioner only (notwithstanding that s 8(1) of the Taxation Administration Act 1953 (Cth) confers a wider power of delegation) suggests that it was not intended that there should be a wholesale delegation of powers to comparatively minor officials. But in any case it would hardly be practicable to make a delegation of that kind, and it seems to me that there exists, as the Parliament must have known, a practical necessity that the powers conferred on the Commissioner by the Act should be exercised by the officers of his Department who were acting as his authorized agents. On the whole I have reached the conclusion that the powers conferred by s 264 were not intended to be exercised only by the Commissioner or his delegate personally but may be exercised through a properly authorized officer. This is consistent with the decision in Lee v Federal Commissioner of Taxation,[11] where it was held that the acts of the Commissioner's officers (no doubt acting within the course of their authority) in performing duties under other sections of the Act were the acts of the Commissioner for the purposes of the Act. In opposition to this view reliance was placed on the fact that express reference to officers authorized by the Commissioner is made in ss 263 and 264, and this, it was said, indicated an intention to exclude action by authorized officers in other cases. Section 263, which refers to "the Commissioner or any officer authorized by him", is concerned with rights, whereas s 264 is concerned with powers; one may conclude that a power may be exercised through an agent more readily than that a right is conferred upon an agent. The reference in s 264(1)(b) to "any officer authorized by him" may be explained by the fact that in the context of that provision it is necessary to specify the officer before whom the recipient of the notice is required to attend. The fact that authorization is expressly mentioned in these provisions does not assist the conclusion that s 264 otherwise excluded any possibility of authorization.

  12  Murphy J[12] did not deal with the point, but expressed no dissent from it in agreeing with the reasons and answers given by the Chief Justice in respect of questions to which the matters referred to in the quoted passages were relevant.

  13  Wilson J said:[13]

   

It seems to me that a clear distinction is to be drawn between the delegation of a power and the exercise of that power through servants or agents: see the informative discussion by Brennan J in Re Reference under Ombudsman Act 1976 (Cth), s 11.[14] In Carltona Ltd v Comrs of Works[15] Lord Greene MR described, in words which have become well-known, the necessity in modern government for the shared performance of duties short of delegation. He said:

   

It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible.

Denning LJ (as he then was) made the same point in Metropolitan Borough and Town Clerk of Lewisham v Roberts,[16] when he said:
   

Now I take it to be quite plain that when a minister is entrusted with administrative, as distinct from legislative, functions he is entitled to act by any authorized official of his department. The minister is not bound to give his mind to the matter personally. That is implicit in the modern machinery of government: see Carltona Ltd v Commissioners of Works and an article by Professor Willis.[17]

Cf also Reg v Skinner;[18] In re Golden Chemical Products Ltd.[19]

 

The defendants make two submissions in answer to the plaintiffs. They would dismiss the English authorities to which I have referred as dealing with the relationship of Ministers of the Crown to their departments. It is true that the emphasis in the cases is primarily expressed in that way. Yet I find the logic of the principle equally persuasive in its application to the head of any large government department, and, a fortiori, to a Deputy Commissioner of Taxation responsible within a State for the implementation of the Commonwealth's laws with respect to taxation. No permanent head of a department in the Public Service is expected to discharge personally all the duties which are performed in his name and for which he is accountable to the responsible Minister. I share the view expressed by Sachs J in Commissioners of Customs and Excise v Cure & Deeley Ltd:[20]

   

The commissioners are in a position parallel to that of the Ministers referred to in the judgment of Lord Greene in the Carltona case,[21] in that their functions are so multifarious that they could never personally attend to them all, and the powers given to them are normally exercised under their authority by responsible officials of the department.

  14  Later his Honour said:[22]

   

Nor does the plaintiffs' argument have the result that s 8 of the Taxation Administration Act 1953 (Cth) is otiose, in that there is no need for a power of delegation. There is every need for such a power, in the interests of administrative efficiency and a sensible devolution of power and responsibility throughout Australia. Without the power of delegation, every act performed by departmental officers throughout Australia would be in law the act of the Commissioner, for which he would be responsible. By delegating substantially all of his powers and functions to Deputy Commissioners he transfers the power base to the geographic regions of the country, allowing the Department to operate in each of the States more or less as a separate administrative unit, with the Deputy Commissioner as its head. Without a power of delegation, this decentralisation would be impossible.

  15  These 3 Justices constituted the majority, Aickin J having died before judgment was given[23] and Mason J being the only Justice in dissent on this issue.

  16  Whilst it is true that the administration of the ITAA 1936 is vested in the Commissioner and there is an express power of delegation with respect to some matters provided for in the ITAA 1936, the nature of the Commissioner's activities as discussed by Gibbs CJ and Wilson J in the passages set out above, and reg 170[24] of the Income Tax Regulations 1936, made under the ITAA 1936, make it clear that it would be impossible for the Commissioner, or indeed all of the Deputy Commissioners, to carry out personally the functions which have to be carried out in order to give the ITAA 1936 effective operation.

  17  There is no reason to suppose, and indeed there is no allegation in the respondent's pleadings that the officer who actually issued the Statutory Notice of Demand acted in any aberrant, unauthorised or otherwise unlawful manner. The respondent's argument that there has been an unlawful delegation is therefore rejected.

  18  Although it was obscurely put, the respondent also sought to argue that the Commonwealth of Australia, as a creditor under the ITAA 1936, could not avail itself of the winding-up provisions in the Corporations Law because that legislative scheme was a State enactment. The argument is untenable. It, or the same argument under a different guise, has been fully considered and found to be without substance in a number of cases[25] in some of which Mr Fitzgibbon, counsel for the respondent appeared.

  19  The next matter which the respondent raises is the so-called "interregnum argument" based upon an asserted deficiency in the appointment of Lord Gowrie VC as Governor-General and in the giving of Royal Assent to the ITAA 1936. The substance of the same argument is set out at length in the reasons for judgment, and emphatically rejected, in McKewins Hairdressing and Beauty Supplies Pty Ltd v DCT[26] by Gummow-J. I fully concur in his Honour's reasoning and argument in regard to it.

  20  The final substantive matter advanced by the respondent is to be found in the Reply of the respondent, that the proclamation on 8 March 1986, after the commencement of the Australia Act 1986 (Cth) on 3 March 1986, of Her Majesty's Letters Patent dated 14 February 1986 under the Royal Sign Manual and the Great Seal of the United Kingdom reconstituting the office of Governor of Queensland, was an invalid exercise of sovereignty by the United Kingdom with respect to Queensland. It followed, it was submitted, that appointments of judicial officers in Queensland are invalid. How this could have any relevance to Judges appointed before 1986 is left entirely unexplained.

  21  However put, the argument misconceives and misunderstands the comprehensive scheme of United Kingdom, Australian and State legislation which collectively was enacted as the Australia Acts pursuant to the "request and consent" provisions then found, so far as Australia and the States were concerned, in ss 4 and 9(2) and 9(3) of the Statute of Westminster 1931 (UK) and in s 51(xxxviii) of the Constitution (Cth). The Letters Patent of 14 February 1986 formed part of that scheme and anticipated the enactment by the United Kingdom Parliament of the Australia Act 1986 (UK), assent to which was given on 17 February 1986. At the time when the Letters Patent were signed and sealed the use of the Great Seal of the United Kingdom in conjunction with the Royal Sign Manual was appropriate, having regard to the residual responsibilities of the United Kingdom in relation, relevantly, to Queensland at that time. The proclamation thereafter of those Letters Patent was no more relevant to their validity than was the proclamation, after the death of King George V, of His Majesty's commission appointing Lord Gowrie VC to the office of Governor-General.[27] While this is enough to dispose of the argument, I note in relation to Queensland that the operation of the Letters Patent of 14 February 1986 has, in any event, been superseded by the Constitution (Office of Governor) Act 1987 (Qld) which presently provides for and affirms the office of Governor and the authorities and powers of that office.

  22  I have therefore formed a clear view that the Statement of Claim and the Reply, taken separately and together, do not allege facts which, if proved would entitle the respondent to any relief either of the kind which he seeks or otherwise.

  23  It is unthinkable that any of the actual relief sought would, or could possibly be granted by a court in any circumstances relevant to this respondent. The first order is claimed in respect of unspecified proceedings, in the future, in any court, for any reason, or, in respect of acts done under the ITAA 1936. If in the future any proceedings are taken in a court by the applicant against the respondent then that will be the occasion for that court to decide whether the proceedings are properly constituted and may properly be taken. So too, if any other action, if it be of an illegal kind, is sought to be taken by the applicant that would provide the occasion for an appropriate response by the respondent in a court having jurisdiction to deal with the matter.

  24  Again, if there be an illegal delegation (of which this case is not an example) then, to the extent that any such illegality may be relevant to the respondent, action may at that time be taken.

  25  The second prayer for relief is equally misconceived. There has been no false presentation to any court by any person or persons illegally claiming to be delegates and in any event any claims of that kind, if they had any substance, would fall to be decided in the future.

  26  There are other serious defects in the respondent's claims and action. The action has been brought by a natural person, a director, in order to seek relief in favour of, that is, effectively on behalf of, a company in liquidation. A director is not a proper party in any such proceedings. If there is to be any challenge to the winding-up order it must be made by the company itself with leave pursuant to s 471A of the Corporations Law.[28] The respondent's case should be struck out on that ground also.

  27  There is yet another basis upon which these cases should not be permitted to be maintained. All of the relief which has been sought, to the extent that it has been formulated in an intelligible way, is relief which a court would have a discretion to grant or not to grant. So far as can be ascertained the respondents are seeking injunctions, and perhaps prohibition and declarations. On discretionary grounds alone it would seem to me that no court would grant relief of these kinds here. All of the matters in question could, and should have been raised in the winding-up and other proceedings in other courts.[29] To give a different judgment now in the cases in which orders of courts have been made, would be to allow a collateral challenge to, and conflict with, decisions of other courts. (In some of the cases[30] the winding-up order has not yet been made.) To the extent that any matters may remain fully undecided the parties in them can argue such matters as they are entitled to and able to argue when they come on for hearing.

  28  In 3 of the cases[31] the factual situation is different from the factual situation in the others. Although winding-up proceedings were commenced in them they have been terminated, or the application for winding up has been dismissed by agreement, or stayed on payment of creditors. These different factual situations do not relevantly give rise to any different approach to the applicant's applications in all of the cases. Substantially the same relief is sought and generally similar facts are alleged in these last-mentioned 3 cases as in the others, and, therefore, if anything, there being no winding up on foot, there is even less basis for the making of the claims by the plaintiffs that they do in those proceedings.

  29  The applicants seek to have the Statements of Claim struck out in each case pursuant to O 26 r 18 of the High Court Rules 1952[32] on the ground that none of the Statements of Claim discloses a reasonable cause of action. This is clearly so and I would strike out the Statements of Claim. The applicant also seeks orders that each action be dismissed, or permanently stayed on the basis that it is frivolous or vexatious. In my opinion these proceedings are vexatious, not only as they are articulated, but in any way that they could be articulated in reliance on the facts alleged. The basic points raised by the Statement of Claim and Reply are unarguable. The proceedings are in my opinion hopeless and vexatious.[33]

  30  The only question is whether I should permanently stay them or dismiss them. There has not been a full hearing and I do not think it appropriate to dismiss the actions. I am prepared to stay them permanently and I would so order.

  31  It would follow that the respondents in each case should pay the applicant's costs of all of the proceedings to date. The applicant asks for costs on an indemnity basis. In view of the fact that the arguments were untenable and that some of them have been found wanting in other proceedings I do think the costs should be paid on an indemnity basis.

  32  In William Gair v Stephen Chapman[34] the applicant submits that the respondent's solicitor, Mr Sockhill, should be ordered to pay the costs on an indemnity basis. The applicant submits that I should follow the same course as followed by Gummow J in McKewins Hairdressing and Beauty Supplies Pty Ltd v DCT.[35]

  33  Mr Sockhill has not been heard in action B5 of 2000[36] so far on the question whether he should pay the costs personally, and whether, if he should, he should do so on an indemnity basis.

  34  In each of matters B70 of 1999, B71 of 1999, B79 of 1999, B80 of 1999, B86 of 1999, B87 of 1999, B88 of 1999, B89 of 1999, B5 of 2000, B7 of 2000 and B8 of 2000, I make the following orders:

 1.  That the action be permanently stayed;
 2.  That the respondent plaintiff or plaintiffs pay the applicant defendant's costs of the action (including this application) on an indemnity basis.
 3.  In action B5 of 2000 I order that:
 (i)  each party file any further material intended to be relied on before 25 September next;
 (ii)  that written submissions be filed by each party before 10 October next; and
 (iii)  that the applicant's summons be adjourned to a date to be fixed.


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