Deputy Commissioner of Taxation, In the Matter of Piccinin v Piccinin

REASONS FOR JUDGMENT 1 This is the return of a creditor's petition dated 9 March 2001 issued against Neil Piccinin and Jeanny Piccinin. The petition was based upon judgments of the Local Court of Western Australia given on 28 August 1998 in the amounts of $11,749.44 and $5,703.93. The judgment in relation to the sum of $11,749.44 was the subject of a bankruptcy notice served on each of the respondents on 16 January 2001. 2 The act of bankruptcy relied upon in the petition is the failure on or before 6 February 2001 in each case to comply with the requirements of the bankruptcy notice. There is no dispute that the bankruptcy notice was not complied with and that the relevant act of bankruptcy has occurred. An affidavit of debt and search of the National Personal Insolvency Index filed on 6 September indicates that, other than the petition in relation to these proceedings, no bankruptcy proceedings in the Bankruptcy District of the State of Western Australia were pending against the respondents and there was no record that either of them is a bankrupt. The record in relation to the respondents shows that the sum claimed in the creditor's petition remains due and owing by the respondents. None of those matters was in issue today. 3 In opposition to the petition the respondents raised a number of points going to the validity of the judgment obtained in the Local Court of Western Australia which was based upon notices of penalties issued by the applicant in relation to unpaid group tax connected with the administration by the respondents of corporations of which they were directors and which were themselves the subject of winding-up applications in the Supreme Court and, indeed, winding-up orders in that court. 4 It is not necessary to go into the detailed history of the winding-up proceedings and the related proceedings in the High Court which were subsequently discontinued, nor the detailed history of proceedings in the Local Court which ended in a default judgment which was the subject of an application to set aside which was in the event dismissed. 5 The two issues which are directed to the validity of the judgment in the Local Court are the validity of the appointments of Western Australian judges and magistrates, which is raised by Mr Piccinin on the basis that such appointments have been made by the Governor acting under the authority of Letters Patent issued by the Queen of England. They are said to be invalid as not made under the provisions of the Commonwealth and State Constitutions. Secondly, he raises the question of the authority of the relevant officers of the Commissioner to issue notices of penalty which grounded the judgments made in the Local Court. He does not bring evidence to establish that there is any break in that chain of authority, but simply indicates that the Australian Taxation Office has so far been unable to satisfy him that there is a relevant continuity in the chain of authority. 6 There is no substance in the validity of appointment question. It was adverted to recently by Hayne J in the High Court in the matter of Miller v Chapman, M31/2001, an ex tempore judgment which was given on 18 July 2001. His Honour there observed, in response to a similar argument, that the complaint about invalidity of judicial appointments was without foundation: "The Constitutions of the States, in accordance with which judicial appointments are made, were continued by operation of section 106 of the Commonwealth Constitution and the complaints now made seek to challenge steps taken by the constitutional monarch of Australia under those State Constitutions."