[2017] WASC 161

JURISDICTION : SUPREME COURT OF WESTERN IN CHAMBERS

CITATION : DEPUTY COMMISSIONER OF TAXATION -v- CASLEY [2017] WASC 161

CORAM : LE MIERE J

HEARD : 1 JUNE 2017

DELIVERED : 16 JUNE 2017

FILE NO/S : CIV 3132 of 2016

BETWEEN : DEPUTY COMMISSIONER OF TAXATION Plaintiff

AND

LEONARD GEORGE CASLEY Defendant

FILE NO/S : CIV 1603 of 2017

BETWEEN : DEPUTY COMMISSIONER OF TAXATION Plaintiff

AND

ARTHUR WAYNE CASLEY Defendant

Catchwords: Practice and procedure - Summary judgment - Application for summary judgment brought by plaintiff - Whether summary judgment ought to be entered - Whether jurisdiction to hear claim - Turns on own facts

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Practice and procedure - Application to set aside writ of summons - Turns on own facts

Legislation: Commonwealth of Australia Constitution Act 1900 (Imp) Constitution (Cth), s 116 Income Tax Assessment Act 1936 (Cth) Income Tax Assessment Act 1997 (Cth), s 5-15 Judiciary Act 1903 (Cth), s 40 Taxation Administration Act 1953 (Cth), pt IVC, pt 11A, sch 1 s 350-101, sch 1 s 255-45, s 8AAZF

Result: Application for summary judgment granted Application to set aside writ of summons dismissed

Category: B

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Representation:

CIV 3132 of 2016

Counsel: Plaintiff : Mr A J Musikanth Defendant : In person

Solicitors: Plaintiff : Australian Government Solicitor Defendant : In person

CIV 1603 of 2017

Counsel: Plaintiff : Mr A J Musikanth Defendant : In person

Solicitors: Plaintiff : Australian Government Solicitor Defendant : In person

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

Bell Group NV (in liq) v (2016) 331 ALR 408 Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146

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LE MIERE J:

Summary

1 In CIV 3132 of 2016 the plaintiff, the Deputy Commissioner of Taxation, claims against the defendant, Leonard Casley for debts due and payable for income tax, interest and penalties in respect of the income years ended 30 June 2006 to 30 June 2013. Leonard Casley has entered a conditional appearance and applied for an order that the writ of summons be set aside 'for reasons of jurisdiction'. The Deputy Commissioner has applied for summary judgment.

2 In CIV 1603 of 2017 the Deputy Commissioner claims against Arthur Casley for debts due and payable for income tax, interest and penalties in respect of the income years ended 30 June 2006 to 30 June 2012. Arthur Casley has applied for an order that the writ of summons be set aside on the ground that the court does not have jurisdiction to hear the claims. The Deputy Commissioner has applied for summary judgment.

3 In each action the Deputy Commissioner's claim arises in consequence of the Deputy Commissioner issuing notices of assessment and notices of amended assessment to the defendant. Production of a notice of assessment, or an amended assessment, is conclusive evidence that the assessment was properly made and, excepting proceedings under pt IVC of the Taxation Administration Act 1953 (Cth) (TAA) on a review or appeal, that the amounts and particulars of the assessment are correct. Further, a certificate issued under s 255-45 of Schedule 1 to the TAA is prima facie evidence of the matter stated in the certificate. In CIV 3132 of 2016 the Deputy Commissioner has issued a certificate that $2,770,177.63 is due and owing by Leonard Casley at the date of the hearing. In CIV 1603 of 2017 the Deputy Commissioner has issued a certificate that $242,669.53 is due and owing by Arthur Casley at the date of hearing.

4 Each of the defendants has stated that the amounts set out in each notice of assessment, amended assessment and certificate is incorrect and the amounts stated are not due and owing. However, neither defendant has adduced any evidence in support of that contention.

5 Each of the defendants has filed an affidavit and written submissions and made oral submissions to the effect that the court does not have jurisdiction over the defendant or to hear the matter because they are the sovereign of, or citizen of, the Hutt River Province which is an independent sovereign state. That argument has no legal merit or

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substance. Anyone can declare themselves a sovereign in their own home but they cannot ignore the laws of Australia or not pay tax.

6 Each of the defendants advances the pseudo legal straw man argument. The straw man argument has no legal merit or substance. Leonard Casley advances an argument based on the Hutt River Province being the political and financial branch of the church of Nian. That argument has no legal merit or substance. The defendants have made other assertions in their affidavits and submissions which are irrelevant and raise no defence to the claims against them. In each action the defendant has no defence to the claims by the Deputy Commissioner. In each action judgment will be entered in favour of the Deputy Commissioner against each defendant.

Notices of assessment - conclusive evidence

7 As I have said, the Deputy Commissioner's claim arises from the Deputy Commissioner issuing notices of assessment and notices of amended assessment to each of the defendants. Production of a notice of assessment, or an amended assessment under a taxation law, that is an act of which the Commissioner of Taxation has the general administration, is conclusive evidence that the assessment was properly made and, excepting proceedings under pt IVC of the TAA on a review or appeal, that the amounts and particulars of the assessment are correct: TAA Schedule 1, s 350-10(1) (item 2 of the table). The effect of s 350-10 of Schedule 1 to the TAA is to confine the taxpayer to pt IVC in challenging the amount or particulars of the assessment: Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 [64] - [67] where the High Court concluded that s 177 of the Income Tax Assessment Act 1936 (Cth), the predecessor of TAA s 350-10, operates as a limitation upon the evidence which may be received in proceedings other than those under pt IVC of the TAA. See also Bell Group NV (in liq) v Western Australia (2016) 331 ALR 408 where the plurality, referring to both s 177 of the ITAA 1936 and s 350-10 of the TAA, confirmed that the legal operation and practical effect of the Tax Acts is such that the production of a notice of assessment is conclusive evidence of the due making of the assessment of a taxation liability and, excepting proceedings under pt IVC of the TAA, that the amount and all the particulars of the assessment are correct [54].

8 A copy of each relevant notice of assessment and amended assessment relied upon by the Deputy Commissioner in each action has been adduced in evidence by the Deputy Commissioner. In so far as the

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Deputy Commissioner's claims relate to a RBA deficit debt relating to a Running Balance Account (RBA) the production of an RBA statement is prima facie evidence that the RBA was duly kept and the amounts and particulars in the statement are correct: TAA s 8AAZI.

9 Section 255-45 of Schedule 1 to the TAA provides that a certificate issued under that section is prima facie evidence of the matters stated in the certificate. At the hearing of these matters the Deputy Commissioner produced certificates pursuant to s 255-45 certifying that a total of $2,770,177.63 was as at 30 May 2017 due and payable by Leonard Casley to the Commonwealth and a certificate pursuant to s 255-45 certifying that a total sum of $242,669.53 was as 1 June 2017 a debt due and payable by Arthur Casley to the Commonwealth.

10 The Deputy Commissioner has established his entitlement to be paid the sums set out in the certificates. The defendants have not adduced any evidence that the debts claimed in these proceedings are not correct.

The jurisdiction argument - secession

11 Each of the defendants asserts that the court has no jurisdiction over them or no jurisdiction to hear these claims. In essence, they say that the land on which they reside is part of the Principality of Hutt River which seceded from Australia and is no longer part of Australia, that they are the sovereign or a citizen of Hutt River, a sovereign independent state, they are not residents of Australia, the laws of Australia and in particular the taxation laws do not apply to them and this court has no jurisdiction over them.

12 In 1970 Leonard Casley was a wheat farmer. He was aggrieved by the wheat quotas allocated to his business. He served a notice of secession on the Western Australian Premier, the Governor, the Prime Minister and the Governor General. He also notified the Queen. Since then he has taken other steps which he believes are the acts of an independent sovereign state including declaring war on Australia. He is convinced that, in taking these steps, he succeeded in separating Hutt River from Australia.

13 Covering cl 5 of the Commonwealth of Australia Constitution Act 1900 (Imp) (Constitution Act) relevantly provides:

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and every part of the Commonwealth, notwithstanding anything in the laws of any State …

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This court is bound by and to give effect to the Constitution Act and to any law made by the Parliament of the Commonwealth under the Constitution, including the TAA.

14 In 2007 Leonard Casley applied to the High Court to remove two sets of proceedings from the Magistrates Court to the High Court under s 40 of the Judiciary Act 1903 (Cth). Each of the proceedings related to offences of not filing taxation returns. The applicants contended that they reside in the so called Hutt River Province and that that is not part of Australia and not subject to Australian taxation laws. In dismissing their applications Heydon J said:

The arguments advanced by the applicants are fatuous, frivolous and vexatious: Casley v Commissioner of Taxation [2007] HCA Trans 590.

The observations of Heydon J are apt to describe the arguments advanced by the defendants in this case.

Jurisdiction - Straw man

15 In an affidavit filed by Leonard Casley he swore:

2. I am the Real Man, Leonard George Casley born at Western Australia on 27 August 1925.

3. Upon the registration of my birth certificate, it is claimed that I became a ward of the state. Owing allegiance to the Monarch, under contract and the Monarch undertakes the protection of myself and my property.

…

5. I am Leonard George Casley, a real man not a straw man.

6. The Straw Man is a fictitious body, which does not exist, but is that which is controlled by the State, and the State's judiciary.

An affidavit filed by Arthur Casley contains similar statements. This appears to be a variant of the strange pseudo-legal straw man theory. The theory holds that an individual has two personas, one of himself as a real flesh and blood human being and the other, a separate legal personality who is the straw man. The idea is that an individual's debts, liabilities, taxes and legal responsibilities belong to the straw man rather than the physical individual who incurred those obligations, conveniently allowing one to escape their debts and responsibilities. It is all gobbledygook.

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Jurisdiction - church of Nain

16 Leonard Casley referred to the establishment of the church of Nain. In a document filed in the court Mr Casley said that the Hutt River Province Principality is the political and financial branch of the church of Nain. In answer to a question from the court Mr Casley referred to s 116 of the Constitution which precludes the Commonwealth from making laws for establishing any religion, imposing any religious observance or prohibiting the free exercise of any religion. It has nothing to do with the defendants' liability to pay tax.

Other matters advanced by defendants

17 In affidavits and submissions filed by the defendants they made numerous other statements irrelevant to the issues before the court. They range from the merely irrelevant to the bizarre, such as the statement that the ATO has been utilising a form of torture known as 'Old Hags Nagging'. It is not sensible or a proper use of judicial resources to recite and analyse all of the defendants' utterances masquerading as legal submissions. It is sufficient to say that none of them raises a defence to the Deputy Commissioner's claims or any reason why there ought to be a trial of the claims.

Conclusion

18 The defendants have not made out any of their assertions that the court does not have jurisdiction over them or jurisdiction to hear the plaintiff's claims. The application of each of the defendants to set aside the writ will be dismissed.

19 The plaintiff has made out his claims. The defendants have not satisfied the court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the claims against them.

20 In CIV 3132 of 2016 judgment will be entered for the plaintiff against the defendant, Leonard Casley, in the amount of $2,770,177.63 together with general interest charge accrued to the date judgment is entered pursuant to s 5-15 of the Income Tax Assessment Act 1997 (Cth) s 8AAZF and pt IIA of the TAA and s 298-25 of Schedule 1 of the TAA.

21 In CIV 1603 of 2017 judgment will be entered for the plaintiff against the defendant, Arthur Wayne Casley, in the amount of $242,669.53 together with the general interest charge accrued to the date judgment is entered pursuant to s 5-15 of the Income Tax Assessment Act

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1997 s 8AAZF and pt IIA of the TAA and s 298-25 of Schedule 1 of the TAA.

22 In each action the defendant shall pay the plaintiff's costs of the application and the action such costs to be taxed if not agreed.

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