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DCV2494 414/02 VMB-F2

THE DISTRICT COURT
OF NEW SOUTH WALES
CIVIL JURISDICTION

JUDGE DELANEY

PARRAMATTA: WEDNESDAY 24 APRIL 2002

349/00 - DEPUTY COMMISSION OF TAXATION v JOHN WILSON

JUDGMENT on application to grant to file a cross claim.

HIS HONOUR: On 23 January 2002 Mr Wilson filed a Notice of Motion in the District Court in which he sought the following orders:
1. That a notice of cross claim which was filed on 17 October 2000 in the Registry of the District Court of New South Wales at Parramatta be reinstated into the proceedings in the action upon the grounds that the Registrar of the District Court committed an act of civil wrong by rejecting that cross claim. He violated the rules of natural justice and committed an offence against section 138 of the Crimes Act 1900, number 40 as set out in the statement of claim filed in the Supreme Court of New South Wales, John Wilson v The State of New South Wales.

The argument for the respondent on this motion is that the court has already dealt with the issue in the Supreme Court and also that it is within the province of the Registrar to deal with any matters before it, subject to any application that might be made by an aggrieved person by the failure of the Registrar to file a document, it being expected that such an application would be made pursuant to part 43, rule 15 of the District Court rules.Part 43, rule 15 of the District Court rules reads as follows:
"Where a registrar gives a direction or makes an order or does any other act in any proceedings the court may, on application by any party, review the direction, order or act and make such order by way of confirmation, variation, discharge or otherwise as the court thinks fit."

The rules that applied to the entitlement of the defendant in this case to file a cross claim required pursuant to part 20, that the cross claim be filed in accordance with the rules. The rules provide at part 20, rule 10,
"A defendant to an action or cross claim may plead a cross claim by filing the cross claim.

2. The cross claimant may file a cross claim
(a) within three months after the date on which the cross claimant is served with the statement of claim commencing the action or
(b) if the period referred to in paragraph a has expired only with the leave of the court."

The position is that these proceedings were originally commenced by a statement of claim dated 16 March 2000. A period of three months would be 16 June 2000. The request for a cross claim was filed by the defendant according to the court records which appear here, that cross claim was filed out of time, therefore the registrar was correct in refusing to accept it. The acceptance of the cross claim required leave. The question is, and I deal with it in this fashion, whether the leave of the court should be granted to file the cross claim. Accordingly, it is necessary to look at that cross claim to see what it is that is being alleged on behalf of the applicant to have a cross claim filed. I have a copy of the cross claim in which the cross claimant who says today that the amount that he seeks of five million dollars, and which he does not abandon, to come within the jurisdiction of this court of $750,000 is insufficient and indeed the damages that he seeks are greater. He pleads the cause of action as follows:

1. Tort. I have suffered civil wrong at the hands of persons employed by the Crown where those persons are the Deputy Commissioner of Taxation because of unfair taxes and judicial officers in State and Federal Courts, because of persecution and the denial of right and justice. The Crown is vicariously liable for the tort committed by persons in the service of the Crown.

2. The imposition of unfair taxes as outlined in sections b and c below

3. The persecution and denial of right and justice began with Master Greenwood in the Supreme Court on 17 September 1996 (the applicant then sets out a number of issues, including matters which appear on his web site).

In paragraph B he alleged the method of levying tax was wrong. He said, "Levying tax on the Australian people by an income tax and provisional tax is now wrong in a moral sense because a much fairer and simpler equitable system has been tabled in the 1996 National Tax Reform Summit". He seeks that the court overturn the imposition of taxation upon him on the basis that there should be some debit tax scheme.

In paragraph C he alleged that the relevant laws were invalid which include the Income Tax Assessment Act and other legislation to which he refers in detail, many of which issues have already been determined -by both the High Court and the Federal Court in relation to those issues in other cases and by which higher courts I am bound as to their opinion.

Finally he restated in paragraph D the right to trial by jury.

The claim that was made by the Deputy Commissioner of Taxation was for money due and payable by virtue of the failure of the defendant to pay taxation by virtue of a Notice of Assessment sent to him in respect of the years of income 1999/2000 and in respect of provisional tax. Paragraph 7 of the Statement of Claim reads "by reason of the failure to pay income tax by the due date the defendant became liable to pay general interest charged pursuant to section 204 of the Income Tax Assessment Act 36 and division 1 of part 2A of the Taxation Assessment Act 53". Paragraph 8, "The defendant failed to pay instalments of provisional tax for the years of income ended 30 June 1999 and 30 June 2000".

The discretion to grant leave to file a cross claim out of time is wide but it appears to me that it is necessary that some cause of action needs to be identified. The question raised in paragraph 1 of the cross claim has already to a degree been determined by the judgment of Grove J in the Supreme Court and the other matters which are raised about invalidity of laws whilst capable of being argued in relation to the various aspects thereof, do not argue anything other than-that the laws in Australia are made by the Crown of the United Kingdom of Great Britain and Ireland where they are State and Federal laws. This matter has already been the subject of determinations by both the Federal and the High Court.

The only other aspect that is dealt with in a rambling and unspecific allegation cross claim is the right to trial by a jury.

As I have already stated today in other matters it is a matter of concern to shut out any citizen in relation to a cross claim or claim of any type which they wish to pursue but there has to be something on the face of the record to indicate that it is a matter which comes within the jurisdiction of this court. This court's jurisdiction is restricted to $750,000 and the cross claim seeks five million. This is outside the jurisdiction of this court and accordingly should be a claim that is made by the applicant in another jurisdiction.

The application to file a cross claim out of time is refused. I trust that that also dealt with the application, as he put it, to reinstate the cross claim.


DCV2494 414/02 VMB-F2

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THE DISTRICT COURT
OF NEW SOUTH WALES
CIVIL JURISDICTION

JUDGE DELANEY

PARRAMATTA: WEDNESDAY 24 APRIL 2002

349/00 - DEPUTY COMMISSION OF TAXATION v JOHN WILSON

JUDGMENT on application for grand jury

HIS HONOUR: On 10 April 2002 Mr John Wilson, the defendant in these proceedings, filed a requisition for a grand jury with the District Court at Parramatta. In support of that application he filed an affidavit of himself which sets out a number of the arguments which he has advanced orally before me today. His affidavit is dated 10 April 2002. During the course of argument I pointed out to Mr Wilson my view that as a judge of the District Court I had limited powers. The application was opposed by Mr Fleming.

The jurisdiction of the District Court is provided by section 9 thereof. This reads:
"1. The court shall have a civil jurisdiction consisting of
(a) its jurisdiction conferred by part 3 and
(b) the jurisdiction conferred by or under any other Act or law on the court and being its jurisdiction referred to in sub-section 2."

In the footnote to that jurisdictional section in the District Court Practice the following appears and I should quote it,
"The court is an inferior court of record and therefore does not have the inherent jurisdiction derived from the Royal Courts of Justice. However, the court has all these powers which are necessary to enable it to act effectively within its jurisdiction and which are necessary in that context to secure the proper administration of justice. The distinction between implied power, which the court does have, and inherent jurisdiction which it does not have is important. The implied power is confined to whatever may be necessary to effectively exercise an expressly conferred power. Necessary in the same sense means a power to make orders which are reasonably required or legally ancillary to the accomplishment of the express or* specific powers. On the contrary, the Supreme Court has an inherent jurisdiction identified by reference to unlimited powers of the courts at Westminster.  The District Court, unlike the Supreme Court, does not have a general responsibility for the administration of justice beyond the confines of it jurisdiction".

As at the date on which Mr Wilson made the application for a grand jury, 10 April 2002, the relevant section that dealt with the jurisdiction of this court to grant a jury was se'ction 76A. It was argued that this did not apply and that in fact the provisions of sub clause 8 of part 5 of schedule 3 still applied. This provides that the Courts Legislation Amendment Civil Juries Act 2001 which commenced on 18 January 2002 provides "a provision of sub-division 8 of division 3 of part 3 as in force immediately before its amendment by the Courts Legislation Amendment Civil Juries Act 2001 continues to apply in relation to actions commenced but not finally determined before the commencement of that amendment as if the provisions had not been amended".

Accordingly, the question for the court on the application that has been made by the applicant is whether there is any such body under the District Court rules as a grand jury. I have looked at the Act and I can find no such entity. There is certainly the power to order that a jury be summoned for the hearing of an action, but not ancillary proceedings. Dunford J in dealing with another application Mr Wilson made in the Supreme Court, in paragraph 14 of his judgment, decided on 8 October 2001 said, "The Supreme Court Procedure Act 1990 was repealed by the Supreme Court Act 1970 section 5 in the first schedule. In any event it never provided for trial by jury in applications such as the present. I am therefore satisfied that I have jurisdiction to hear and determine the defendant's application without a jury".

The various provisions of the Act to which I have already referred in the previous judgment given today on preliminary proceedings referred to the provisions of the District Court Act as they were before 18 January 2002. It is necessary for the applicant to comply with the rules in respect of the application for a jury, be it a grand jury or otherwise. I find, as I said, that there is no such thing as a grand jury which may be permitted in this court. Whether another court would find that it had the jurisdiction to do so, I do not know. But my task is to decide whether there is power to make the order sought.

I conclude that the relevant section is section 78 as it stood before the alterations on 18 January 2002. This reads "In any action, other than an action to which section 79 applies, where the amount claimed exceeds $5,000, any party may, within the prescribed time, by filing a requisition for trial with a jury and paying the fee prescribed by the regulations made under section 150, require that a jury be summoned to try the action and a jury shall be so summoned".

I conclude that in this case on the application as made by the applicant for a grand jury that there is no power to grant the application for a grand jury. I consider that the matter that should now be considered is whether or not the applicant is entitled to a jury at all, Certainly pursuant to the application of 10 April 2002 I find he is not so entitled.
 


DCV2494 414/02 VMB-G1

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THE DISTRICT COURT
OF NEW SOUTH WALES
CIVIL JURISDICTION

JUDGE DELANEY

PARRAMATTA: WEDNESDAY 24 APRIL 2002

349/00 - DEPUTY COMMISSION OF TAXATION v JOHN WILSON

JUDGMENT on application for summary judgment

HIS HONOUR: As I have already outlined today in the course of these proceedings from which Mr Wilson has now absented himself, the Deputy Commissioner of Taxation has sought the payment of income tax pursuant to a Statement of Liquidated Claim filed on 16 March 2000. The Deputy Commissioner alleged that a notice of assessment in respect of the year ended 30 June 1999 and instalments of provisional tax for the end of the year 30 June 99 and 30 June 2000, together with interest, were owing.

In this respect I read the affidavit of Gregory Phillips of 28 November 2000 which sets out the formal details and the mechanism by which the Taxation Office raised the taxation notices directed to the defendant. The affidavit sets these matters out and none of those matters, other than the allegation of illegality set out in part of the Notice of Grounds of Defence filed by the defendant and which has already been ruled upon by the High Court and the Federal Court, are traversed by that Notice of Grounds of Defence.

The submissions which are made on the basis of these affidavits and a fair reading of the Notice of Grounds of Defence filed by the defendant in April 2000 and a further document filed later that year which sought to amend it is that the claim that is made by the plaintiff for income and provisional tax and charges for late payment are matters which have not been the subject of any defence. The counsel for the applicant said that there was no triable issue of fact and that the case was therefore an appropriate matter for summary judgment pursuant to part 11A, rule 2 of the District Court rules. As counsel submitted the defendant in his Notice of Grounds of Defence did not traverse any of the facts pleaded by the plaintiff in the Statement of Liquidated Claim and is accordingly said to have made admissions in respect of such facts (see part 9, rule 14 of the District Court rules).

The evidence in the certificate under section 177(1) of the Act provides "A notice of assessment shall be conclusive proof of the due making of an assessment except in proceedings on a review or appeal relating to that assessment". Counsel referred me to F J Bloemen Pty Limited v Federal Commissioner of Taxation, 81 Australian Taxation cases, 4280. More recently this section has been considered in the Deputy Commissioner of Taxation v Walter Pty Limited 127ALR when the court referred to its earlier decisions and Mason CJ said "The terms of the first limb in the sub-section are not directed to curial jurisdiction or to a party's right to resort to the courts. Instead the sub-section gives conclusive evidentiary effect to a notice of assessment when produced in much the same ways that parties by contract give conclusive effect to a certificate stating the amount of one party's indebtedness to another".

The affidavit of Gregory Phillips sworn on 28 November produces the relevant notices of assessment and section 221Y(H)(i) of the Act provides that a production of a notice of assessment purporting to be, or a document purporting to be a copy of such notice shall be prima facie evidence that the amount of provisional tax and all particulars relating thereto are correct. Both the question of the tax, provisional tax and the claim for interest thereon are supported by Mr Phillips affidavit evidence.

As was mentioned during the course of other parts of these proceedings during today's hearing the defendant pleaded hardship, that the method of levying tax was wrong and issues related to a cross claim which has already in part been dealt with elsewhere. I refer to, in particular, the views which were expressed by Dunford J in Wilson v The State of New South Wales, unreported 8 October 2001. It was submitted by Mr Fleming that if, in the defendant's pleading, it was intended to raise the matters referred to in the document entitled "Notice of Cross Claim', that the defendant was merely expressing an opinion as to policy. In any event I have now determined that the request for leave to file that cross claim should be refused and that is no longer a matter for consideration on this application.

The defendant alleged that the Income Tax Assessment Act was not a valid enactment of the parliament of Australia pursuant to 'section 512 of the Commonwealth of Australia constitution. The validity of the relevant legislation has been consistently upheld and applied by the courts. Similar arguments which have been based on issues as to whether or not the executive power of the Commonwealth is vested in the Queen, the laws of Australia are made by the Crown of the United Kingdom, the High Court has declared that the United Kingdom is a foreign power, the signing by Australia of the Treaty of Versaille as an independent nation nullified all the laws of Australia, including the constitution and other matters, have all been the subject of views expressed in different jurisdictions particularly in a very helpful decision in Machett v The Deputy Commissioner of Taxation and another, unreported, Supreme Court New South Wales 23 October 2000 in the judgment of O'Keefe J which dealt with all of these matters and referred to the previous decisions of both the Federal and High Courts on these matters.

It was submitted by Mr Fleming that there was no proper defence to the plaintiff s claim and that therefore the plaintiff is entitled to judgment in the amount set out in the affidavit of Gregory Phillips of 8 February 2001 updated to 23 April 2002.

It is not necessary, in my view, having regard to my adoption of the views expressed by O'Keefe J to further go through the various aspects of the issues raised on this application for summary judgment. Mr Wilson has seen fit to absent himself fronra hearing of the application and did not address any submissions to it, notwithstanding the fact that he was given an opportunity to do so.

In my view all of the matters which are referred to by Mr Fleming have been amply made out and in the circumstances the order that I make is that the defence filed herein, be it the first or second defence filed, are both struck out and judgment be entered for the plaintiff.

The order I make is that there be judgment for the plaintiff in the sum of $35,131.19 and that the defendant pay the plaintiff's costs of these proceedings to include all the costs of all the notice of motions that have been before the court and all appearances from the time when the court first commenced to deal with these applications.


DCV2494 414/02 VMB-E2

THE DISTRICT COURT
OF NEW SOUTH WALES
CIVIL JURISDICTION

JUDGE DELANEY

PARRAMATTA: WEDNESDAY 24 APRIL 2002

349/00 - DEPUTY COMMISSION OF TAXATION v JOHN WILSON

JUDGMENT on preliminary proceedings

HIS HONOUR: There are a number of matters listed before the court today.  First is a Notice of Motion dated 5 December seeking summary judgment on the part of the plaintiff. The second is a Notice of Motion seeking that a cross claim be reinstated. This is a motion on behalf of the defendant. There is also a Notice of Motion by the defendant seeking the appointment of a grand jury. These motions are all listed today, having been adjourned from previous days over time partly to enable Mr Wilson to seek leave to appeal to the Court of Appeal and the Supreme Court in relation to a number of matters but in particular to the rejection by the Registry of his cross claim seeking damages of five million dollars.

When the matter was called on this morning I asked Mr Wilson if he maintained matters which he had raised on previous occasions with me that I should not be hearing any part of any of these proceedings without a jury and he said he did. Mr Wilson has now provided submissions in support of that contention that I should not be hearing any of the notices of motion which are before the court today or even the preliminary matters without a jury. He has set this out very clearly. It is his passionate belief that the rights of the individual in Australia are, and should be in the future, governed by the will of the people. It is his view expressed forcefully and with considerable research that the history of laws of Australia suggest that-all cases should be- heard by a jury because it is only in the hands of the jury that sovereignty can be found. These submissions, as I said, he passionately believes in to the extent that he has, on other occasions and before me on mentions and motions earlier on in these proceedings, expressed all those views. I state at the outset that notwithstanding the passion with which Mr Wilson has expressed those views, I have on the many occasions that he has been here always found him to be a courteous man who, in a straight forward way, puts his point of view. I trust that I have been the same to him, even though he may not agree with all that I say and do.

I now deal with the issues that he has raised, in order.

Firstly I wish to set out some short history of the District Court proceedings.  The District Court Act 1973 commenced on 1 July 1973. Section 8 provided for the establishment of the District Court which should be a court of record. The jurisdiction of the Court is provided by section 9. It says paragraph 1,
"The court shall have a civil jurisdiction consisting of
(a) Its jurisdiction conferred by part 3 and
(b) The jurisdiction conferred by or under any other law or Act not being its jurisdiction referred to in sub-section 2."

In the unamended Act the sections relating to questions of trial by jury are contained in part 3, division 3, subdivision 8. Section 77 provided,
1. In an action the Judge shall determine all questions of law.
2. In an action the Judge shall, subject to sub section 5 determine all questions of fact unless a jury has been summoned.
3. Subject to section 78 and 79 an action shall be tried without a jury unless the court makes an order (which may be made on terms) to the contrary.
4. The court may order that any questions of fact in an action be tried before any other questions of fact in the action.
5. In an action where a jury has been summoned
(a) the court may order that all or any issues of fact be tried without a jury if
(b) any prolonged examination of documents or scientific or local investigation is required a cannot conveniently be made with a jury or (2) all parties consent to the order and
(c) Issues of fact on a defence arising under section 63(5) or 64(1)(c) of the Workers Compensation Act 1926 shall be tried without the jury.

Section 78 provided
"1. In any action (other than an action to which an action to which section 79 applies) where the amount claimed exceeds one hundred dollars, any party may, within the prescribed period by filing a requisition for trial with a jury and paying a fee prescribed by the regulations made under section 150, require that a jury be summoned to try the action and a jury shall be so summoned.

2. Where the court makes an order under section 77(3) or 79(1) the plaintiff shall pay the fee prescribed by the regulations made under section 150 and shall not be entitled to take any further step in the action until the fee is paid.

3. The fee paid under sub section 1 and 2 shall be treated as costs in the action unless the court otherwise orders."

Various amendments have been made to the sections of the Act to which I have referred. Setting aside those amendments which are not substantive or which are not relevant to the instant case I note that substantial changes were made by the District Court Procedure Amendment Act 1984. Schedule 3, clause 29 of that Act (which commenced 1 July 1985) increased the monetary threshold in section 78 from one hundred to five thousand dollars. In 1987 the District Court Amendment Act 1987 again made substantive amendments. Paragraph 77(5) (a) was omitted. Schedule 1, clause 2 of that same Act inserted 79A which provided "in any action the court may order, despite sections 77, 78 and 79, that all or any questions of facts be tried without a jury".

As earlier discussed the Act was further amended in 2001 by the Courts Legislation Amendment Civil Juries Act 2001 which commenced 18 January 2002. Schedule 1 of that Act created section 76A which provides:
"1. An action is to be tried without a jury unless the court otherwise orders.
2. The court may make an order under sub-section 1 that an action be tried with a jury if
A. Any party to the action
(1) files within the prescribed time a requisition for trial with a jury and
(2) pays the fee prescribed by the regulations under section 150 and
B. The court is satisfied that the interests of justice require that the action be tried by a jury."

Mr Wilson has argued that interlocutory proceedings should be dealt with by a jury notwithstanding the fact that the District Court as opposed to the Supreme Court is entirely a Court created by statute. As a Judge of the District Court I am bound by the statute passed by parliament indicating what it is that I can do as far as the jurisdiction of the court is concerned. If I am not given the powers I cannot exercise them. I have no inherent powers. I have discretions in relation to the exercise of powers given to me by the court.

The position is that the argument put forward by Mr Wilson as to the entitlement of a jury to deal with the Notices of Motion before the court today which I am dealing now with in a preliminary fashion as he has requested, is an argument which cannot be sustained.

The history of dealing with interlocutory matters in courts in Australia has been that interlocutory matters have never been conducted with a jury and I have, so far as I understand the provisions of the District Court Act, no power to do so. In addition, I would not do so even if I had the power because of the fact that the issues to be determined are issues dealt with in relation to the various procedural matters of this court. Mr Wilson submitted that in those circumstances there should be a jury to decide for example whether or not the cross claim should be restored or a jury to decide whether there should be a jury. These procedural matters, as I said, have always been matters dealt with by a judge sitting alone. His submissions in that regard in my view cannot be sustained.

Accordingly, in the first matter that Mr Wilson raises, that is his submission that to decide any of these matters at all there needed to be a jury summoned, I have reached the conclusion for much the same reason as referred to by Dunford J in Wilson v The State of New South Wales, 8 October 2001 that this is in the circumstances a misconceived submission. In addition I also rely upon the general views about Mr Wilson's jury argument which were agitated before the High Court in Wilson v the State of New South Wales an application heard by Justices McHugh and Callinan on 23 November 2001 in which Mr Wilson very forcefully and, may I say, with some skill argued the issue before Justice McHugh during the period of time that he was given on that leave application.

I now turn to the first submissions that Mr Wilson made, that is because this is a federal matter and I am not a federal judge that I have no power to hear the proceedings. Many matters are the subject of legislation both by Commonwealth and State legislatures. The jurisdiction of this court is not governed by whether the State parliament or the Federal parliament passed the law, but whether or not a person seeking to be a litigant in the proceedings has the right to approach this court for determination of issues between one or another member of our society.

The District Court Act, to which I have already referred to in the other part of this judgment on the preliminary issue raised by Mr Wilson, sets out quite clearly the extent of the jurisdiction of the court. This is to be found in sections 46, 47 and 48 in particular and throughout Division 2. The fact is that the court has, unless prohibited by some other statute, that is for example there are cases in which no appeal can be brought to the District Court or the proceedings have to be brought in another court, but the fact is that there is no restriction on the Deputy Commissioner of Taxation bringing these proceedings in the District Court because it is within the ambit of the civil jurisdiction of that court to accept a statement of claim filed by the Deputy Commissioner and to deal with the issues raised by it. Accordingly, the second preliminary point raised by Mr Wilson is rejected and I rule that I can now hear the three Notices of Motion without a jury.
 


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