Did Mr Miller take all reasonable steps to cause an administrator to be appointed to each of the companies?

1. There is no evidence that Mr Miller took reasonable steps to cause an administrator to be appointed to ACIB or ACI for the purpose of s 269-15(2)(ii) of sch 1 to the TAA.
2. Mr Miller admits, as was the case, that no administrator was appointed to ACIB or ACI.[52]
3. The defence under s 269-35(2)(a)(ii) of sch 1 to the TAA therefore fails.

Did Mr Miller take all reasonable steps to cause each of the companies to begin to be wound up?

1. There is no evidence that Mr Miller took reasonable steps to cause ACIB or ACI to begin to be wound up for the purpose of s 269-15(2)(c) of sch 1 to the TAA.
2. ACIB was not wound up until 22 Decmeber 2015.[53] ACI was not wound up until 23 July 2015.[54]
3. The defence under s 269-35(2)(a)(iii) of sch 1 to the TAA therefore fails.

Is the Deputy Commissioner estopped from bringing the claim against Mr Miller or has she waived the right to do so?

1. There is no evidence to support Mr Miller's estoppel claims in any of the forms advanced. In any event, for the reasons that follow, the Deputy Commissioner is not estopped from bringing the claim against Mr Miller. Nor can the Deputy Commissioner have waived the right to do so.
2. An estoppel may arise in certain circumstances to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment.
3. The principles relating to estoppel by representation or conduct, estoppel by convention and equitable estoppel were comprehensively summarised by Owen J in The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9].[55] As Owen J noted in that case,[56] the criteria necessary to establish an equitable estoppel were set out in the often cited passage of the judgment of Brennan J in Waltons Stores (Interstate) Ltd v Maher,[57] as follows:
   1. The plaintiff has assumed that a particular legal relationship then existed between the plaintiff and the defendant or has expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship.
   2. The defendant has induced the plaintiff to adopt that assumption or expectation.
   3. The plaintiff has acted or has abstained from acting in reliance on the assumption or expectation.
   4. The defendant knew or intended him to do so.
   5. The plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled.
   6. The defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
4. For the purposes of explanation, the references in those six matters to the plaintiff is a reference to the party asserting the estoppel, and the reference to the defendant is a reference to the party against whom the estoppel is asserted.
5. In The Commonwealth v Verwayen,[58] Deane J described the conceptual foundation and essential operation of the doctrine of estoppel by conduct, which he referred to as having emerged as a coherent body of substantive and consistent principle, as follows:
   1. While the ordinary operation of estoppel by conduct is between parties to litigation, it is a doctrine of substantive law the factual ingredients of which fall to be pleaded and resolved like other factual issues in a case ...
   2. The central principle of the doctrine is that the law will not permit an unconscionable or, more accurately, unconscientious departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation.
   3. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party.
   4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party (a) has induced the assumption by express or implied representation; (b) has entered into contractual or other material relations with the other party on the conventional basis of the assumption; (c) has exercised against the other party rights which would exist only if the assumption were correct; (d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting on the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. ...
6. No evidence has been adduced by Mr Miller as to the representations alleged to have been made by the Deputy Commissioner or as to the conduct of the Deputy Commissioner said to give rise to the alleged assumption. Nor has any evidence been adduced as to Mr Miller adopting the alleged assumption, the Deputy Commissioner's knowledge that Mr Miller had adopted the alleged assumption, Mr Miller's alleged reliance on the assumption or the detriment or significant disadvantage alleged to have been or to be suffered by him as a result.
7. For the reasons that follow, this defence cannot succeed, in any event.
8. The principles of estoppel have evolved largely in the context of private law and not legal relations arising from legislation.
9. In the legislative context, depending on the nature and construction of the relevant statute and its purpose, it is generally not possible to hold a public officeholder to a representation that exceeds the powers or defeats the duties given to them under the statute.[59]
10. No conduct on the part of the Deputy Commissioner could operate as an estoppel against the operation of the TAA.[60] Specifically, any conduct of or representation made by the Deputy Commissioner cannot give rise to any estoppel, election or waiver, or analogous doctrine, which would conflict with the operation of the TAA and her statutory duties relating to the collection and recovery of unpaid tax-related liabilities due and payable under the TAA.
11. Mr Miller's claims that the Deputy Commissioner is estopped from bringing a claim against him to recover the unpaid director penalties or has waived the right to do so must therefore fail.

Did each of the companies make the payments alleged by Mr Miller against the PAYG withholding amounts?

1. Mr Miller has not made out this aspect of his defence to the Deputy Commissioner's claim.
2. There is no evidence that any payments were made against the PAYG withholding amounts the subject of the Deputy Commissioner's claim, either as set out in Schedule 2 to the Defence, or at all.

1. For the reasons set out above:
   1. I am satisfied that the amount of $361,841 claimed by the Deputy Commissioner is due and payable by Mr Miller.
   2. Mr Miller has not made out:

(a) the statutory defence under s 269-35(2)(a) of sch 1 of the TAA that he took all reasonable steps to cause ACIB and ACI to comply with its obligations in relation to the PAYG withholding amounts, to cause an administrator to be appointed or for the companies to begin to be wound up;

(c) his defence that the companies made payments as alleged against the PAYG withholding amounts.

1. Having found in favour of the Deputy Commissioner and that none of the defences raised by Mr Miller have been made out, I will enter judgment for the Deputy Commissioner in the amount claimed of $361,841 together with interest pursuant to s 32 of the Supreme Court Act.
2. I will hear from the parties in relation to the final form of orders and in relation to costs.

Taxation Administration Act 1953 (Cth)

Division 12 - Payments from which amounts must be withheld

Subdivision 12-B - Payments for work and services

An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as an employee (whether of that or another entity).

A company must withhold an amount from a payment of remuneration it makes to an individual:

(a) if the company is incorporated - as a director of the company, or as a person who performs the duties of a director of the company; or

(b) if the company is not incorporated - as a member of the committee of management of the company, or as a person who performs the duties of such a member.

Subdivision 16-B - To pay withheld amounts to the Commissioner

When and how to pay amounts to the Commissioner

(1) An entity that withholds an amount under Division 12 must pay the amount to the Commissioner in accordance with this Subdivision.

16-75 When amounts must be paid to Commissioner

(3) Subject to subsection (4), if a *small withholder withholds an amount under Division 12 (other than section 12-175 or 12-180) during a month in a *quarter, it must pay the amount to the Commissioner by the end of the 21st day of the month after the end of that quarter.

(a) withholds an amount under Division 12 (other than section 12-175 or 12-180) during a month in a *quarter; and

(b) is a *deferred BAS payer on the 21st day of the month after the end of that quarter;

the small withholder must pay that amount to the Commissioner as shown in the table:

If the amount is withheld during the *quarter ending on:

the amount must be paid to the Commissioner by the end of:

16-150 Commissioner must be notified of amounts

(1) An entity that must pay an amount (even if it is a nil amount) to the Commissioner under:

(a) subsection 16-70(1) (about amounts withheld under Division 12); or

Part 4-15 - Collection and recovery of tax-related liabilities and other amounts

(1) The following table is an index of each tax-related liability under the Income Tax Assessment Act 1936. The key provision for the liability, as set out in the table, specifies when the liability becomes due and payable.

Tax-related liabilities under the Income Tax Assessment Act 1936

Taxation Administration Act 1953

Taxation Administration Act 1953

Division 255 - General rules about collection and recovery

(1) A tax-related liability is a pecuniary liability to the Commonwealth arising directly under a *taxation law (including a liability the amount of which is not yet due and payable).

Note 1: See section 250-10 for an index of tax-related liabilities.

Note 2: A taxation law, or a provision of it, may be excluded from being applied to this Part. See section 265-65.

255-5 Recovering a tax-related liability that is due and payable

(1) A tax-related liability is a pecuniary liability to the Commonwealth arising directly under a *taxation law (including a liability the amount of which is not yet due and payable).

Note 1: See section 250-10 for an index of tax-related liabilities.

Note 2: A taxation law, or a provision of it, may be excluded from being applied to this Part. See section 265-65.

(2) The Commissioner, a *Second Commissioner or a *Deputy Commissioner may sue in his or her official name in a court of competent jurisdiction to recover an amount of a *tax-related liability that remains unpaid after it has become due and payable.

Note: The tables in section 250-10 set out each provision that specifies when an amount of a tax-related liability becomes due and payable. The Commissioner may vary that time under Subdivision 255-B.

Division 269 - Penalties for directors of non-complying companies

(1) This Division applies as set out in the following table:

Obligations that directors must cause company to comply with

This Division applies if, on a particular day (the initial day), a company is a company registered under the Corporations Act 2001, and on the initial day ...

and the company is obliged to pay to the Commissioner on or before a particular day (the due day) ...

the company receives an *alienated personal services payment

an amount in respect of that alienated personal services payment in accordance with Division 13 and Subdivision 16-B.

an amount in respect of that benefit in accordance with Subdivision 16-B.

superannuation guarantee charge for the quarter in accordance with the Superannuation Guarantee (Administration) Act 1992.

an *assessed net amount for the tax period in accordance with the *GST Act.

a GST instalment quarter (within the meaning of the *GST Act) ends

a GST instalment (within the meaning of the GST Act) for the quarter in accordance with the GST Act.

(1) The directors (within the meaning of the Corporations Act 2001) of the company (from time to time) on or after the initial day must cause the company to comply with its obligation.

(2) The directors of the company (from time to time) continue to be under their obligation until:

(b) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Act 2001; or

(c) the company begins to be wound up (within the meaning of that Act).

(1) You are liable to pay to the Commissioner a penalty if:

(a) at the end of the due day, the directors of the company are still under an obligation under section 269-15; and

(b) you were under that obligation at or before that time (because you were a director).

Note: Paragraph (1)(b) applies even if you stopped being a director before the end of the due day: see subsection 269-15(2).

(2) The penalty is due and payable at the end of the due day.

Note: The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269-25.

(5) The amount of a penalty under this section is equal to the unpaid amount of the company's liability under its obligation.

Note 1: See section 269-40 for the effect on your penalty of the company discharging its obligation, or of another director paying his or her penalty.

Note 2: See section 269-45 for your rights of indemnity and contribution.

(a) set out what the Commissioner thinks is the unpaid amount of the company's liability under its obligation; and

(b) state that you are liable to pay to the Commissioner, by way of penalty, an amount equal to that unpaid amount because of an obligation you have or had under this Division; and

(c) explain the main circumstances in which the penalty will be remitted.

269-30 Effect on penalty of directors' obligation ending before end of notice period

(1) Subject to subsection (2), a penalty of yours under this Division is remitted if the directors of the company stop being under the relevant obligation under section 269-15:

(a) before the Commissioner gives you notice of the penalty under section 269-25; or

(b) within 21 days after the Commissioner gives you notice of the penalty under that section.

(2) You are not liable to a penalty under this Division if:

(a) you took all reasonable steps to ensure that one of the following happened:

(i) the directors caused the company to comply with its obligation;

(ii) the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001;

(iia) the directors caused a small business restructuring practitioner for the company to be appointed under section 453B of that Act;

(iii) the directors caused the company to begin to be wound up (within the meaning of that Act); or

(b) there were no reasonable steps you could have taken to ensure that any of those things happened.

(3) In determining what are reasonable steps for the purposes of subsection (2), have regard to:

(a) when, and for how long, you were a director and took part in the management of the company; and

269-40 Effect of director paying penalty or company discharging liability

(1) This section applies to the following liabilities:

(a) the liability of the company under its obligation referred to in section 269-10;

(b) the liability of each director (or former director) to pay a penalty under this Division in relation to the liability of the company referred to in paragraph (a);

(c) a liability under a judgment, to the extent that it is based on a liability referred to in paragraph (a) or (b).

Discharging one liability discharges other liabilities

(2) If an amount is paid or applied at a particular time towards discharging one of the liabilities, each of the other liabilities in existence at that time is discharged to the extent of the same amount.

(3) If, because of section 268-20 (Nature of liability to pay estimate), one of the liabilities is discharged at a particular time to the extent of a particular amount, each of the other liabilities in existence at that time is discharged to the extent of the same amount.

(4) This section does not discharge a liability to a greater extent than the amount of the liability.

Part 4-90 - Evidence

(a) is signed by the Commissioner, a *Second Commissioner, a *Deputy Commissioner or a delegate of the Commissioner; and

(b) states that, from the time specified in the certificate, an amount was payable under a *taxation law (whether to or by the Commissioner);

(d) the particulars stated in the certificate are correct.

350-12 Prima facie evidence - particulars stated in evidentiary certificate

(1) Without limiting subsection 350-10(3), the particulars that may be stated in a certificate under that subsection include the matters in subsections (2) and (3) of this section.

(a) that a person named in the certificate has a *tax-related liability; or

(e) that a sum specified in the certificate is, as at the date specified in the certificate, a debt due and payable by a person to the Commonwealth.

All courts, and all persons having by law or consent of parties authority to hear, receive and examine evidence, must take judicial notice of the signature of every person who is or has been:

if the signature is attached or appended to an official document for the purposes of a *taxation law.

350-20 Certain statements or averments in proceedings to recover tax-related liabilities

(1) In a proceeding to recover an amount of a *tax-related liability, a statement or averment about a matter in the plaintiff's complaint, claim or declaration is prima facie evidence of the matter.

(2) This section applies even if the matter is a mixed question of law and fact. However, the statement or averment is prima facie evidence of the fact only.

(3) This section applies even if evidence is given in support or rebuttal of the matter or of any other matter.

(4) Any evidence given in support or rebuttal of the matter stated or averred must be considered on its merits. This section does not increase or diminish the credibility or probative value of the evidence.

(5) This section does not lessen or affect any onus of proof otherwise falling on a defendant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] See Deputy Commissioner of Taxation of the Commonwealth of Australia v Woodhams [2000] HCA 10; (2000) 199 CLR 370 [19]; Snell v Deputy Commissioner of Taxation [2020] NSWCA 29 [40]; Re Scobie; ex parte Commissioner of Taxation (1995) 59 FCR 177, 182 - 183.

[2] Deputy Commissioner of Taxation of the Commonwealth of Australia v Woodhams [13] (Gleeson CJ, McHugh, Gummow, Kirby & Callinan JJ), considering the equivalent predecessor provisions in Income Tax Assessment Act 1936 (Cth), div 9.

[3] Re Scobie; ex parte Commissioner of Taxation 183 - 184.

[4] Further amended statement of claim filed 20 September 2018, par 4 (SOC), Amended defence filed 16 January 2020, par 4 (Defence); Notice to admit facts, par 4; Response to notice to admit facts, par 1.

[5] SOC, par 13; Defence, par 16; Notice to admit facts, par 9; Response to notice to admit facts, par 1.

[6] Notice to admit facts, pars 15 - 23; Response to notice to admit facts, pars 3 - 4.

[12] Defence, pars 5.1, 5.2, 16.1 and 16.2.

[13] Exhibit 3, pars 29 - 32, 'YD-11', 'YD-12' and pars 59 - 62, 'YD-27', 'YD-28'.

[16] SOC, pars 7 - 8 and 16 - 17; Exhibit 3, pars 33 - 34, 36, 63 - 64 and 66.

[17] Defence, pars 7.1, 7.2, 8, 18.1 - 18.2 and 19.

[18] Defence, pars 7.3 - 7.4 and 18.3 - 18.5.

[19] SOC, pars 9 - 12; Exhibit 3, pars 33 - 35.

[20] SOC, pars 18 - 21; Exhibit 3, pars 63 - 65.

[22] Exhibit 3, pars 37 - 42, 'YD-13' - 'YD-16'.

[23] Exhibit 3, pars 43 - 47, 'YD-17' - 'YD-19'.

[24] Exhibit 3, pars 48 - 53, 'YD-20' - 'YD-23'.

[25] Exhibit 3, pars 54 - 58, 'YD-24' - 'YD-26'.

[26] Exhibit 3, pars 77 - 82, 'YD-35' - 'YD-38'.

[27] Exhibit 3, pars 83 - 87, 'YD-39' - 'YD-41'.

[28] Exhibit 3, pars 88 - 92, 'YD-42' - 'YD-44'.

[29] Exhibit 3, pars 33 - 34, 63 - 64 and 94 - 95, 'YD-7' - 'YD-10'.

[30] Plaintiff's written submissions, pars 45; Exhibit 3, pars 94 - 95 and 98.

[32] Deputy Commissioner of Taxation v Miller [2021] WADC 29.

[33] Defence, pars 5.2.1 and 16.2.1 and schedule 1. See also Defence, pars 7.3 - 7.4, 9.1.4, 10.2, 11.2, 17.2, 18.3 - 18.5, 20.2, 21.2 and 22.2.

[36] Further amended schedule 1 to Defence.

[41] Reply to amended defence filed 29 January 2020 (Reply), pars 2 - 7.

[43] Defence, pars 9, 17, and 20 and Schedule 2.

[45] Exhibit 3, pars 29 - 35 and 59 - 65.

[46] Exhibit 3, pars 33 - 34, 63 - 64 and 94 - 95, 'YD-7' - 'YD-10'.

[49] See Snell v The Deputy Commissioner of Taxation [52] - [57], referring to Canty v Deputy Commissioner of Taxation [2005] NSWCA 84; (2005) 63 NSWLR 152 [45] and Deputy Commissioner of Taxation v George [2002] NSWCA 336; (2002) 55 NSWLR 511 [27]. (Both referring to predecessor provisions in Income Tax Assessment Act 1936 (Cth), which were to substantially the same effect as the relevant provisions in div 269 of sch 1 to the TAA.) See also Deputy Commissioner of Taxation v Arora [2017] NSWSC 1016; (2017) 106 ATR 257 [55], [58].

[52] Defence, pars 7.2, 7.3, 18.2 and 18.3.

[55] The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 [3459] - [3553]; see also Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191 [194].

[56] The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [3539].

[57] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 428 - 429.

[58] The Commonwealth of Australia v Verwayen (1990) 170 CLR 394, 443 - 445.

[59] Maritime Electric Co Ltd v General Dairies Ltd [1937] UKPC 16; [1937] AC 610. See also Commissioner of Taxation v Croft [2016] QSC 190, [41] - [42]; Oamington Pty Ltd (Receiver & Manager Appointed) v Commissioner of Land Tax (1997) 98 ATC 5051; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 208 ff (Gummow J).

[60] Federal Commissioner of Taxation v Wade [1951] HCA 66; (1951) 84 CLR 105, 117 (Kitto J); AGC (Investments) Ltd v Federal Commissioner of Taxation (1991) 91 ATC 4180, [4194] - [4195] and the authorities there referred to.