Dickson v Commonwealth Director of Public Prosecutions; Dickson v Commonwealth of Australia

Court of Appeal (NSW)|2023-05-31|Before: Ward P, Kirk JA

Primary judgment

The primary judge emphasised in his reasons for judgment (at [44]) that before the Court were the notices of motion seeking the dismissal or striking out of the applicant's summons and statement of claim and said (at [45]) that the applicant had failed to engage with the issues raised by the notices of motion (noting that the applicant's submissions substantially repeated the evidence and argument adduced from the trial decision and in subsequent appeals). The primary judge (at [46]) made clear that he rejected the applicant's attempts to introduce new factual propositions.
From [52], his Honour considered whether the applicant's claims in both proceedings amounted to a collateral attack against his convictions, concluding that they were (at [53]) and that both proceedings thereby brought the administration of justice into disrepute and were an abuse of process (see at [55]-[61]).
On that basis alone, his Honour considered that the respective proceedings should be dismissed. However, his Honour went on to address some of the issues raised by the respondents, concluding that the applicant's claims did not amount to a reasonable cause of action, were misconceived and were an abuse of process (at [83]).
In this regard, his Honour considered that the proceedings, insofar as they sought to invoke the supervisory judicial review jurisdiction of the Court pursuant to s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) went beyond the power of the Court (see at [62]-[66]), though this was not necessary to decide; that the applicant had no prospects of success in the declaratory relief sought (and there was no novelty in the issues raised in the respective proceedings as might provide a stronger basis for the applicant to resist the notices of motion) (at [67]-[73]); that the applicant's claims of fraud did not rise above mere assertion (at [74]), there was no reasonable cause of action for breach of a prosecutor's "duty" of disclosure in the circumstances of the case (see [75]-[78]), and the constitutional claim was hopeless (at [79]-[81]); and that, to the extent that the applicant was seeking damages for malicious prosecution, this was unavailable as the criminal proceedings did not terminate in the applicant's favour (at [82]).
Further, in relation to the Damages Proceeding Application (against the CDPP), his Honour noted (at [84]) that, to the extent that the CDPP had breached some duty of disclosure, damages could not be awarded because the CDPP had statutory immunity pursuant to s 32A of the Director of Public Prosecutions Act 1983 (Cth).
At [86], his Honour concluded that: Ultimately, the contentions made by the plaintiff are wholly without merit and misconceived in their response to the Notices of Motion. The proceedings initiated by the plaintiff are an abuse of process. They are productive of unjustified trouble or harassment. I am satisfied that the defendant has demonstrated that there is a high degree of certainty that the ultimate outcome of the proceeding would be that the plaintiff's claims would be dismissed. It is so obviously untenable that the claims cannot succeed. In these circumstances, both the Declarations and Damages Proceedings must be dismissed.
His Honour made orders accordingly, dismissing both sets of proceedings with costs, on the basis that the proceedings were an abuse of process of the Court.

Section 78B notices

On 1 May 2023, the applicant issued notices under s 78B of the Judiciary Act to the respective Attorneys-General throughout the Commonwealth (see affidavit of Monika Markechova affirmed on 3 May 2023 at [1]-[2]). In the s 78B notices, the applicant asserts, inter alia, that: the summons seeks consequential declarations including that Dickson (No 18) be set aside; the prosecution case at trial "required proof that the taxpayer actually underpaid its federal income tax" and this was misconceived, and required a particular direction to the jury; the trial judge erred in directing the jury; the operation of s 135.4(5) of the Criminal Code is constitutionally invalid, inter alia because the Supreme Court cannot determine whether income tax has been underpaid by a taxpayer because it is not a justiciable matter; the Supreme Court's summary dismissal "overrides and annihilates" the original jurisdiction of the High Court created by Chapter III of the Constitution; and that, at the heart of the applicant's argument is that the trial decision was made outside the "judicial power" of the Supreme Court. The applicant maintains that once the declaration of constitutional invalidity is made by the Court the criminal trial decision is to be set aside.
Insofar as the applicant in oral submissions on 31 May 2023 maintained that this Court does not have jurisdiction to hear his application (see T 3.42-4.12; 31 May 2023), the applicant nevertheless did not withdraw his application, instead putting his submissions in the alternative in the event that this Court does (contrary to his belief) have jurisdiction to hear the application.
No Attorney-General has sought to intervene on the present applications.

Principles as to leave to appeal

There is no dispute that the applicant requires leave to appeal from the orders for the summary dismissal of the respective proceedings because the decision was interlocutory (see s 101(2)(e) of the Supreme Court Act; Macatangay v New South Wales (No 2) [2009] NSWCA 272 at [11]-[13]).
As noted by the respondents, in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], Gleeson JA (Macfarlan and Payne JJA agreeing) stated that: Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].
The respondents also point to the recognition in the authorities that leave to appeal will be refused where its grant would lack utility (Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 (Kassam) at [27] per Bell P, as his Honour then was, with whom Meagher and Leeming JJA agreed) in the sense that the court's determination will have no practical effect as between the parties or at all (it not being the role of this Court to give advisory opinions on what may have become hypothetical questions) (see Kassam at [28]).

Alleged errors

There is considerable overlap in the grounds of appeal sought to be raised by the applicant on the respective appeals.

Proceeding 2022/00311465 (Declarations Proceeding Application heard on 31 May 2023)

In his outline of submissions, the applicant identifies eight alleged errors of law, complaining that the summary dismissal decision permanently terminates his ability to have a serious constitutional issue determined by the Supreme Court. That central issue is identified as being the constitutional validity of the operation of s 135.4(5) of the Criminal Code, in the context of a loss/risk to the Commonwealth comprising underpaid federal income tax; specifically, whether the determination of the essential elements of the s 135.4(5) offence, in the context of the applicant's trial involving the underpayment of federal income tax, was constitutionally valid.
Complaint is made that the primary judge failed to provide a precise answer to the following questions (at [7] of the applicant's outline of submissions): (1) Can the Supreme Court, within the Chapter III judicial power, decide whether a company taxpayer has underpaid federal income tax? (2) Is the determination of various elements of the s 135.4(5) offence requiring proof that federal company income tax has been/will be underpaid a justiciable controversy capable of being determined by the Supreme Court? (3) Is it "hypothetical" and "abstract" for the Supreme Court to decide that a company taxpayer has underpaid, or will underpay, federal income tax? (4) Can the fundamental requirement of due process in a criminal trial for the s 135.4(5) of the Code offence be respected in the context of alleged underpaid federal income tax where the Supreme Court has no jurisdiction or capacity to determine whether a company underpaid federal income tax? (5) How does s 109 of the Constitution effect [sic] the State legislation requiring proof beyond reasonable doubt, in the context of a liability to federal income tax which is determined on the balance of probabilities with the burden of proof resting on the taxpayer and not the Crown?
The applicant submits that the primary judge erred in relying on three legal principles to support the summary dismissal decision: abuse of process, relying on the principle that the proceedings are a collateral attack on the earlier trial decision and decision of the Court of Criminal Appeal; the Court's "authority to exercise its discretion to deny a declaration order where there is insufficient utility to the beneficiary of the declaration"; and the principle of merger.
The eight alleged errors of law (which are largely replicated by the errors identified in the Damages Proceeding Application) are as follows.
First, the refusal of the primary judge to exercise the original jurisdiction conferred on the High Court by the Constitution (ground 1 of the draft notice of appeal), referring to ss 75(iii) and 76(i) of the Constitution; and ss 30(a) and 39(2) of the Judiciary Act. (In oral submissions, seemingly contradicting the premise of this ground 1, the applicant argues that neither the Supreme Court nor the Court of Criminal Appeal has the power to exercise the original jurisdiction of the High Court (see T 6.11-37; 31 May 2023).) The applicant also contends that the summary dismissal decision "annihilates the High Court's authority" to decide the matter covered by the summons.
Second, error in the exercise of the discretion to deny the declarations sought (ground 3 of the draft notice of appeal); the complaint here being that this annihilates the original jurisdiction of the High Court invested in the Supreme Court to determine the matter. The applicant complains that the primary judge failed to understand the substance of the applicant's arguments and failed to weigh up all the factors to decide whether to exercise the discretion to deny the declaratory relief. Complaint is made that the primary judge misunderstood the application of the merger principle. There is also an allegation of a failure to provide reasons weighing up the applicant's interests in the declarations sought.
Third, the error in deciding that the summons involved an abuse of process because the proceedings seek a collateral attack on the trial decision and Court of Criminal Appeal decision (ground 4 of the draft notice of appeal). The applicant contends that the principle of collateral attack has no relevance to the challenge to the constitutional invalidity of the operation of s 135.4(5) of the Criminal Code.
Fourth, misapplication of the principle of merger (ground 5 of the draft notice of appeal). The applicant contends that the operation of the challenged provision in the context of underpaid federal income tax is outside the judicial power of the Supreme Court and, as such, the principle of merger cannot apply to the trial decision or Court of Criminal Appeal decision.
Fifth, that there was an insufficient basis to support the conclusion that the proceeding was hopeless and involved no reasonable cause of action (ground 6 of the draft notice of appeal). Complaint is made that the primary judge failed to evaluate and determine the central issue and ignored the applicant's submissions and evidence (ground 2 of the draft notice of appeal). The applicant contends that the primary judge failed clearly to rule that the operation of s 135.4(5) of the Criminal Code in the context of requiring the prosecution to prove that federal income tax was, or will be, underpaid is constitutionally valid; and argues that this ruling is critical and necessary to support the decision that the proceedings are an abuse of process and should be otherwise dismissed.
Sixth, error in the conclusion that the proceedings involved insufficient novelty (ground 7 of the draft notice of appeal).
Seventh, error in misunderstanding the significance and relevance to the applicant's summons of Gageler J's comments in relation to s 40 of the Judiciary Act in Pratten v Commonwealth of Australia [2017] HCATrans 124 (Pratten) (ground 8 of the draft notice of appeal). The applicant maintains that Gageler J's comments (which the applicant says are correct but not counter to his submissions) relate to one minor question (whether a Supreme Court can decide, as a question of fact, whether an amount of cash received is "ordinary income" as that term is used in federal income tax legislation).
Eighth, that the primary judge erred in that the Court of Criminal Appeal is not "invested with the original jurisdiction of the High Court" and therefore the matter covered by the summons could not be determined by the Court of Criminal Appeal.

Proceeding 2022/00311455 (Damages Proceeding Application heard on 23 June 2023)

The applicant again complains of eight alleged errors of law.
First, the refusal of the primary judge to exercise the original jurisdiction of the High Court pursuant to s 75(iii) of the Constitution (ground 1 of the draft notice of appeal, again putting this error on the basis that the primary judge erred in summarily dismissing the statement of claim "effectively annihilating the original jurisdiction of the High Court pursuant to s 75(iii) of the Australian Constitution"). In his written submissions at [6], the applicant again argues that the summary dismissal decision "annihilates the High Court's authority to decide the matter covered by the Statement of Claim". The applicant says that, additionally, the statement of claim matter (i.e., the Damages Proceeding) may be viewed as part of one single matter with the proceedings covered by the applicant's summons (i.e., the Declarations Proceeding) arguing the constitutional validity of s 135.4(5) of the Criminal Code, which the applicant says has also been wrongly summarily dismissed.
Second, the decision of the primary judge that the Damages Proceeding is an abuse of process because the proceeding aims to mount a "collateral attack" on the original trial decision and subsequent Court of Criminal Appeal decision (ground 2 of the draft notice of appeal). The applicant contends that the primary judge misapplied the concept of "collateral attack" to the proceedings and erred in failing to recognise fundamental principles of law relating to actions for fraud on the court; and that his Honour misunderstood and misapplied the principle of merger and the High Court decisions in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1998] HCA 24 (Kable v DPP) and New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 (NSW v Kable).
Third, the determination that the cause of action was "hopeless" without considering the applicant's case (ground 3 of the draft notice of appeal). Complaint is here made that the primary judge has not exercised jurisdiction on the basis that the primary judge has failed to consider the detailed pleadings, submissions, and affidavit evidence.
Fourth, that the primary judge has misunderstood the circumstances of the early exit of the applicant's co-accused from the original trial and has erred in considering the significance of the early exit to the fraud on the court action (ground 4 of the draft notice of appeal).
Fifth, that the primary judge has failed to understand the novelty of the issues involved in the proceedings (specifically, as to how Australian courts should deal with a fraud on the court proceeding caused by the prosecution's deliberate suppression of seized evidence). The applicant contends that the summary dismissal "is an approval to prosecution bodies to permit enforcement agencies to seize and suppress evidence and to explicitly deny the suppression to a superior court jury".
Sixth, that the primary judge failed to recognise the significant amendment to the statement of claim.
Seventh, that the primary judge failed to comprehend the gravamen of the s 135.4(5) of the Criminal Code offence proved by the prosecution "being an agreement which was actually implemented which actually caused federal company income tax to be actually underpaid" (ground 5 of the draft notice of appeal). The applicant contends that the primary judge failed to comprehend that the prosecution case was based on actual underpaid company income tax in the 2007 to 2010 financial years.
Eighth, that the primary judge failed to comprehend that the Court of Criminal Appeal "is not invested with the original jurisdiction of the High Court".

Applicant's submissions

For each application, the applicant submits that leave to appeal should be granted, and provides six reasons for each, which largely overlap.
In the Damages Proceeding Application, the reasons are as follows: first, that the summary dismissal decision is attended by sufficient doubt to warrant its reconsideration by this Court (citing Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 397 at 398-400); second, that substantial injustice would result if leave is refused because the summary dismissal decision was in error in many respects and the decision "effectively terminates the applicant's rights and does not merely relate to procedural questions" (citing Ex parte Bucknell (1936) 56 CLR 221; [1936] HCA 67); third, that the summary dismissal decision annihilates the High Court's original jurisdiction pursuant to s 75(iii) of the Constitution; fourth, that the statement of claim and summary dismissal decision raise novel questions which have not been considered by the Australian Courts and the summary dismissal will wrongly stultify the development of the law (citing Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373-374; Gibson v Parkes District Hospital (1991) 26 NSWLR 9, Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572); fifth, that the summary dismissal decision misunderstands the ratio decidendi of the High Court decisions in Kable v DPP and NSW v Kable; and, last, that the summary dismissal decision wrongly extends and misapplies the principle of collateral attack to the proceedings.
In the Declarations Proceeding Application, the reasons are as follows: first, that the summary dismissal decision terminates the applicant's ability to have an important constitutional issue considered by the Supreme Court; second, that the authority to decide the matter is within the original jurisdiction of the High Court "invested in the Supreme Court" created by Chapter III of the Constitution; third, (again) that the matter is novel and that summarily to dismiss the summons will stultify the development of constitutional law and federal criminal law, and is of public importance; fourth, that the summary dismissal decision fundamentally misunderstands and misapplies three legal principles (being "collateral attack", merger in the context of court decisions made outside the "judicial power", and the Court's inherent jurisdiction to exercise a discretion to annihilate a litigant's proceedings arguing the unconstitutional operation of federal legislation); fifth, that the primary judge failed to support the finding that there is a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial (citing Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41); and, last, that the summary dismissal decision is plainly not in the interests of justice as it "annihilates the applicant's constitutional right to have the High Court exercise its original jurisdiction".
The applicant further maintains that the matters in both proceedings are of broad community interest: in the Damages Proceeding Application asserting that "[t]he prosecution's pernicious behaviour in seizing and suppressing evidence needs to be examined by the court"; and in the Declarations Proceeding Application asserting that "the [c]onstitutional issue raised by the [s]ummons is relevant to many past and future 'tax fraud' prosecutions and needs to be examined by the court".
In oral submissions on 31 May 2023 (on the Declarations Proceeding Application), the applicant accepted that the consequence of obtaining declarations as to the constitutional invalidity of s 135.4 of the Criminal Code would be that his trial decision would be invalid but maintains that it is in the interests of justice to clarify "this very unsatisfactory area of the law" (see T 7.01-23; 31 May 2023). The applicant maintains that the declaration he seeks is broader than merely going to his case.
The applicant argues that the operation of s 135.4 of the Criminal Code is repugnant to the Constitution because only the Federal Commissioner of Taxation (not the Court) can decide whether income tax is payable and unpaid (see T 7.44-50; 31 May 2023). The applicant maintains that the elements of the criminal offence in his case required the Crown to prove that tax was actually underpaid (see T 5.31-38; 31 May 2023) and that this is not a justiciable issue or one which the Supreme Court has the institutional integrity to decide (see T 5-8; 31 May 2023).
In the Damages Proceeding Application, the applicant in oral submissions emphasised the decision of Perry J in Commissioner of Taxation v Rawson Finances Pty Ltd [2023] FCA 617 (Rawson Finances) in which her Honour considered an application by the Commissioner of Taxation to set aside a judgment of the Full Court of the Federal Court on the basis that it was procured by fraud (referring in particular to [64]-[68] of that judgment) (see T 2.25-48; 23 June 2023).
The applicant argued that her Honour's decision was in the context of suppressed evidence and that it was not a pre-condition of the exercise of power to set aside a decision that reasonable diligence must have been exercised by a party or its legal representatives. The applicant quotes from Gould v Vaggelas; (1985) 157 CLR 215; [1985] HCA 75 (at 252) that "[a] knave does not have escape liability because he is dealing with a fool" (likening himself and his counsel during the trial to fools) (see T 3.01-08; 23 June 2023).
The applicant contends that the suppression at the heart of the fraud in his proceedings was the seizure and suppression of thousands and thousands of pages of documents (T 3.16-24; 23 June 2023) (referring to his written submissions regarding the Damages Proceeding dated 14 March 2022 at pp 6-18); and maintains that the primary judge misunderstood the suppression as being only of five bundles of documents that allowed the co-accused (Mr Michael Issakidis) to "exit" the original trial. The applicant argues that the issue during his criminal trial was that the trial judge's hands were tied because the trial judge had not seen the thousands and thousands of pages of seized and suppressed documents and had no understanding of how they might affect the prosecution (or defence) case; and had no ability to compel the prosecution to tender evidence during the trial (referring to Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23). The applicant complains that he and his legal representatives saw only the five bundles of documents which had formed the basis on which Mr Issakidis exited the trial (T 3-4; 23 June 2023).
The applicant's complaint is that the jury heard evidence from an Australian Federal Police officer that he had not seized the suppressed documents and the prosecution made that submission but that the prosecution had told the trial judge that documents had been suppressed. The applicant says that this meant that the jury was left with a binary decision - to decide whether he was "a complete liar and three folders of documents had been created and concocted post arrest", or that he was telling the truth and the jury could rely on his documents (which the applicant believes were exculpatory) (see T 4.19-43; 23 June 2023).
The applicant's complaint is that the primary judgment suggests that the suppression amounted to the "mere five bundles of documents" that led to Mr Issakidis' exit from the trial, and ignores the admitted suppression of thousands and thousands of pages of documents (see T 5.11-15; 23 June 2023).
Insofar as the respondents emphasised the requirement in Dickson v Commissioner of Australian Federal Police [2019] NSWSC 1293 by Wright J as to the need to identify each person identified in the alleged contrivance to keep the Court in ignorance of the real facts and particulars of that alleged contrivance (see the passage quoted in Rawson Finances at [71]), the applicant says that the respondent has not asked for particulars.

Respondents' response

Briefly to summarise the respondents' position, the respondents contend that leave should be refused in both proceedings on the basis that the primary judgment: is not attended with sufficient doubt to warrant its reconsideration; no real issue of principle is raised; there is no substance to any questions of general public importance; and there is no injustice. It is further submitted that the appeals would lack utility and have no practical effect, noting that the applicant has exhausted his appeal rights in relation to his criminal convictions.
Insofar as complaint is made that the primary judge refused to exercise its authority pursuant to the original jurisdiction of the High Court and annihilated that Court's original jurisdiction, the respondents point out that the primary judge exercised federal jurisdiction (noting that r 13.4 of the UCPR applied by virtue of s 79 of the Judiciary Act). The respondents maintain that there is no limitation on the Court of Criminal Appeal dealing with constitutional issues raised on appeal (referring by way of example to authorities including R v Kinghorn (2021) 106 NSWLR 322; [2021] NSWCCA 313 at [146]-[149] per Bathurst CJ and Payne JA) and they note that the Court of Criminal Appeal is the Supreme Court for the purposes of s 73(ii) of the Constitution (referring to Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27 at [6] (Basten JA; Howie and Johnson JJ)).
As to the various grounds challenging the constitutional validity of s 135.4(5) of the Criminal Code and the "novelty" of applicant's argument (grounds 2, 4-8 in draft notice of appeal in the Declarations Proceeding Application; grounds 2, 5 in the draft notice of appeal in the Damages Proceeding Application) the respondents maintain that the verdict of the jury in the applicant's criminal trial merged in the judgment in the 2016 CCA decision which "holds the field" (referring to the primary judgment at [72]) (see the authorities cited in footnote 32 of the respondents' submissions at [14]); and that the effect of the criminal conviction is to merge in that conviction or judgment "all of the material upon which it proceeded".
The respondents emphasise that finality is a central and pervading tenet of the judicial system and say that both of the Common Law Division proceedings (in which the applicant, having exhausted his appeal rights, seeks declarations that his convictions be quashed and that he be acquitted, and that damages be awarded as a result of being "wrongfully convicted") amount to a collateral attack against his convictions by means of a civil action in relation to a decision that has been finally reached by the trial court and on appeal in the criminal jurisdiction (as the primary judge found). It is submitted that the impact of a successful collateral challenge would be destructive of public confidence in the administration of justice because there may be two conflicting decisions from the proceedings, which would have been conducted under different circumstances (the respondents here referring to the primary judgment at [52]-[61] and the authorities cited at footnote 40 of the respondents' submissions at [14]).
To the extent that the applicant sought to invoke the Court's supervisory judicial review jurisdiction under s 69 of the Supreme Court Act by asserting that his convictions, sentence and appeal were void, invalid, and should be quashed, the respondents note that the Supreme Court could not issue prerogative writs to itself or to the Court of Criminal Appeal (referring to the primary judgment at [62]-[66] and references in respondents' submissions at footnotes 42 and 43 at [14]).
The respondents contend that his Honour correctly found that declaratory relief does not have utility because it could not set aside the jury's verdict or the Court of Criminal Appeal's dismissal of the applicant's conviction appeal (referring to the primary judgment at [67]-[72]; references in respondent's submissions at footnote 44 at [14]).
Further, the respondents maintain that it is incorrect for the applicant to suggest that the trial court determined underpayment of income tax. The respondents point out that the charges were conspiracy charges which included the risk of loss including temporary loss to the Commonwealth; and that Beech-Jones J made findings about the possibility that applying taxation legislation would reduce the assessable income of the company in question (which findings were upheld on appeal). The respondents submit that a similar argument was previously rejected by Gageler J in Pratten (referring to the primary judgment at [80]-[81]). The respondents submit that the primary judge correctly considered the applicant's arguments as to novelty (at 41, (9); [73]). Reference is made to the 2016 CCA decision at [162]-[163] in this regard.
As to the complaint made in the Damages Proceeding Application as to a failure by the primary judge to understand the applicant's claims (grounds 3-4 in the draft notice of appeal), the respondents submit that the applicant's claim that his "wrongful conviction" entitles him to an award of damages of $840 million is a collateral attack against his convictions by means of a civil action and is an abuse of process; and they argue that it undermines the principle that orders of superior courts are valid until set aside even if the orders are made in excess of jurisdiction, whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction (referring to NSW v Kable at [32], [56]).
The respondents argue that the applicant's assertions of fraud (see the primary judgment at 32) do not rise above mere assertion and that the argument that the decisions of the Court and the Court of Criminal Appeal were procured by fraud has no basis (and to entertain such an argument without a basis in evidence would bring the proper administration of justice into disrepute) (referring to the primary judgment at [74]).
The respondents point out that a breach of a prosecutor's "duty" of disclosure does not give an entitlement to damages (citing Re Application of Malcolm Huntley Potier [2012] NSWCA 222 at [30]-[31] (Allsop ACJ, Basten JA)) and they say that, in any event, the applicant had withdrawn his subpoena to the ATO; and had instructed his senior counsel (twice) that he did not seek a discharge of the jury due to the imperfect disclosure (see primary judgment at [47], [49], [78]; R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595 at [3] (Dickson (No 12)). In this regard, the respondents submit that the applicant received a significant forensic advantage because highly damaging evidence (see Beech-Jones J at [54], [70] in Dickson (No 12)) was not used against him. It is also noted that the applicant did not raise the imperfect disclosure issue on appeal.
Finally, the respondents say that there was no failure by the primary judge to understand the amendment application and that the primary judge proceeded and heard from the applicant in relation to the summons and statement of claim in both their filed and proposed amended forms. Further, the respondents say that there was no misunderstanding about the co-conspirator's exit (the primary judge having referred to the 2016 CCA decision and Dickson (No 12) at [47], [49], [78]).

Determination

It is important to bear in mind that in order to warrant the grant of leave to appeal something more must be demonstrated than that the decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164). Where the decision challenged is one that involves the exercise of discretion, then error of the kind referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 must be shown.
The principal basis on which the primary judge determined that the Common Law Division proceedings should be summarily dismissed (and indeed the basis that his Honour considered would have been sufficient alone to warrant the summary dismissal of the proceedings) was that the proceedings were an abuse of process as they amounted to a collateral attack on the applicant's convictions. That this conclusion was correct is demonstrated by the applicant's submissions before the primary judge in the Declaration Proceeding, in which he derides as "bizarre" the argument by the respondent that there would be no utility in the grant of the orders there sought (see at section I of the applicant's submissions regarding the Declaration Proceeding dated 14 March 2022), describing the utility of the relief sought as obvious: that he will be released from prison and not be subject to any further sentence; and may be entitled to prosecute further legal remedies (giving by way of example the remedy of the tort of malicious prosecution).
The primary judge had regard to the principle applicable in considering why it is an abuse of process to mount a collateral attack on conviction in circumstances where the applicant has exhausted his avenues of appeal therefrom. No error of law or principle has been identified by the applicant in that regard. Insofar as the applicant invokes authorities where applications to set aside judgments procured by fraud have been obtained to suggest that this is not a collateral attack against his convictions, even apart from the fact that his argument is based on conjecture (as to the content of the suppressed documents and what the jury might have made from the conflict in evidence as to the suppression and seizure of the documents), the difficulty is that the applicant has been aware of the fact that "thousands and thousands of pages" of documents were seized since the time of his trial (even though not aware of the contents of those documents). He has had ample opportunity to raise issues about this in the context of the appellate processes that he has now exhausted. The decision of Perry J in Rawson Finances does not assist the applicant insofar as it emphasises the need for particularity as to the fraud alleged. There is no error in the observation by the primary judge that the claims based on fraud rise no higher than mere assertion.
What is clear is that the applicant, having exhausted his avenues of appeal from conviction, is now seeking to raise matters that either were or could have been raised in the course of those earlier challenges (such as the alleged constitutional invalidity of s 134.5 of the Criminal Code) and the professed novelty of his arguments in that regard does not assist him. True it is that in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 at [137]-[138], Kirby J emphasised the need for restraint in determining summary judgment applications where the law is uncertain "and especially where it is in a state of development", noting that the court "owes its duty to the law". However, the only utility in the raising of the arguments here sought to be pressed by the applicant lies in the challenge to his convictions.
The applicant has not established that there is a reasonable argument that the primary judge erred in summarily dismissing the two Common Law Division proceedings as a collateral attack against his convictions. No error of principle has been established. Even if there was a misapprehension of facts as to the suppressed documents, it is not one which leads to the conclusion that there would be a substantial injustice if leave were not given to raise that argument on appeal, there being no error in his Honour's conclusion that the prosecution's duty of disclosure in the conduct of a criminal trial does not give rise to a corresponding entitlement to bring a claim for damages for a breach of that duty.
The public interest in the finality of litigation has been emphasised in numerous cases (including by Perry J in Rawson Finances at [72]). In the present case this principle is particularly important given the number of appeals and applications for special leave to appeal that the applicant has already made in respect of his conviction.
As to the particular errors identified by the applicant, these can be disposed of briefly as follows.
As to the complaints that the primary judge refused to exercise the original jurisdiction of the Hight Court, even apart from the fact that only the High Court can do so, the fact remains that the primary judge was exercising federal jurisdiction in determining the notices of motion for summary dismissal and nothing that his Honour did in allowing the applications for summary dismissal "annihilated" the High Court's authority or jurisdiction. The complaints that his Honour failed to understand the substance of the applicant's arguments and failed to weigh up the factors to decide whether to exercise the discretion have no foundation. His Honour addressed the arguments raised by the applicant and his reasons for the exercise of discretion summarily to dismiss the proceedings were sufficient to comply with the duty of a judicial officer to provide reasons (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Mahoney JA (at 269-70) where his Honour repeated his earlier observations in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-6 to that effect). The complaint that the primary judge failed to provide a "precise answer" to the questions set out in the applicant's submissions in this Court fails to appreciate that it is not the duty of the judge to decide every matter raised in argument and that the judge may decide in a way which does not require the determination of a particular submission if the decision on a particular submission is not within, or an obstacle to, the judge's reasoning to the final conclusion.
There has been no error shown as to the decision that the respective proceedings involved an abuse of process because they sought a collateral attack on the applicant's convictions. The fact that the applicant now seeks to impugn those convictions by challenging the constitutional validity of the operation of s 135.4(5) of the Criminal Code does not change that. Nor is it the case that error in the application of the principle of merger has been shown.
The complaint that there was an insufficient basis to support the conclusion that the proceedings were hopeless or raised no reasonable cause of action is not established and in any event the principal basis for dismissing the proceedings was (as already noted) the fact that they amounted to an abuse of process as a collateral attack on conviction. The complaint as to a failure to conclude that the proceedings involved sufficient novelty has already been addressed.
As to the alleged error in misunderstanding the relevance to the applicant's summons in the Declaration Proceeding Application of the comments made by Gageler J as to s 40 of the Judiciary Act in Pratten, no such error has been established. Gageler J there rejected the submission that the question whether Mr Pratten had obtained a financial advantage through a reduction in his liability to pay income tax consequent on failure to disclose assessable income could not be out to a jury (as it was hypothetical) until a determination had been made under the relevant taxation legislation. What the primary judge accepted in the present case was a submission that the applicant had been charged with conspiracy offences and that the Crown in relation to those charges did not have to prove a causal nexus between the conspiracy and the object of that conspiracy or whether or not the conspiracy was in fact achieved (see the 2016 CCA decision at [104]-[105]).
Finally, the primary judge did not err in concluding that the matters raised in the summons in the Declaration Proceeding Application could have been determined by the Court of Criminal Appeal.
As to the separate grounds raised in the Damages Proceeding Application, the primary judge has not been shown to have erred in his application of the concept of collateral attack in circumstances where the applicant is alleging that there is an action for fraud on the court (as already considered). There is no substance to the complaint that the primary judge failed to consider the detailed pleadings, submissions and affidavit evidence. The primary judge's reasons disclose that his Honour was well aware of the pleaded claim and addressed the submissions in that regard. It was not necessary to delve into the affidavit evidence at the stage of the interlocutory hearing.
The complaint as to the misunderstanding of the circumstances of the early exit of the co-accused have been dealt with above; as has the complaint as to the failure to understand the novelty of the issues involved (in this context that relating to how to deal with fraud on the court caused by the alleged deliberate suppression of seized evidence by the prosecution). The complaint that his Honour failed to recognise the significant amendment to the statement of claim fails to take into account that his Honour expressly proceeded by reference to both forms of the pleading.
Finally, as to the complaint that the primary judge failed to consider that the prosecution case was based on "actual underpaid company income tax" this in essence goes to the contentions raised in the Declaration Proceeding Application that this Court does not have institutional integrity to determine the issue of underpayment of income tax and that it is not a justiciable matter. Neither contention is well founded.

Conclusion

For the reasons set out above, the orders that should be made in each proceeding are: 1. If required, leave be granted under the Felons (Civil Proceedings) Act 1981 (NSW) for the bringing of the application for leave to appeal. 2. Leave to appeal is refused. 3. The applicant is to pay the respondent's costs of the application for leave to appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2023

Pratten v Commonwealth of Australia [2017] HCATrans 124 R v Anthony James Dickson (No 18) [2015] NSWSC 268 R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595 R v Kinghorn (2021) 106 NSWLR 322; [2021] NSWCCA 313 Re Application of Malcolm Huntley Potier [2012] NSWCA 222 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 Category: Principal judgment Parties: Proceeding 2022/00311455 (Damages Proceeding) Anthony James Dickson (Applicant) Commonwealth Director of Public Prosecutions (Respondent)

Solicitors: Director of Public Prosecutions (Respondents) File Number(s): 2022/00311455; 2022/00311465 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2022] NSWSC 1122 Date of Decision: 28 September 2022 Before: Walton J File Number(s): 2021/00165953; 2021/00165929

(2021) 106 NSWLR 520

(2021) 106 NSWLR 322

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