Hardwick v Federal Commissioner of Taxation & Anor

Supreme Court of NSW|2015-10-21|Before: Beech-Jones J

Solicitors: In person - Plaintiff Australian Government Solicitor - First Defendant Commonwealth Director of Public Prosecutions - Second Defendant File Number(s): 2014/294318

Judgment (revised from ex tempore)

In October 2014 the plaintiff, Rodney Charles Hardwick, commenced these proceedings. In April 2015 he filed a statement of claim naming the Federal Commissioner of Taxation (the "Commissioner") and the Commonwealth Director of Public Prosecutions (the "CDPP") as defendants.

Background

In his affidavit verifying his statement of claim Mr Hardwick described himself as a "barrister at law". From the Bar table he has advised me that he is admitted to practise in Queensland.
On 7 July 2014 there was filed in the Local Court at Mount Druitt a Court Attendance Notice ("CAN") charging Mr Hardwick with thirteen offences under s 8C(1)(a) of the Taxation Administration Act 1953 (the "TAA"). The first of the offences was charged as follows: "1. On or about 2 July 2014 at CAMPBELLTOWN in New South Wales the defendant failed to give a document to the Commissioner of Taxation when and as required pursuant to a taxation law, namely section 162 of the Income Tax Assessment Act 1936 contrary to paragraph 8C(1)(a) of the Taxation Administration Act 1953 and it is averred, pursuant to section 8ZL of the Taxation Administration Act 1953, that: (i) the defendant was required by the Deputy Commissioner of Taxation, Tax Practitioner and Lodgement Strategy, by notice in writing dated 6 May 2014 to give to the Commissioner of Taxation on or before 1 July 2014 a document, namely an income tax return in the approved form duly signed setting forth a complete statement of all income derived by the defendant from all sources in Australia and elsewhere during the year 1 July 2000 to 30 June 2001 ("the notice"); (ii) at all material times the Commissioner of Taxation had delegated his powers and functions to approve in writing the form for an income tax return for the year 1 July 2000 to 30 June 2001 to the Assistant Commissioner of Taxation (Senior Tax Counsel - Trevor Jones) and this delegation has not at any material time been revoked; (iii) at all material times the Assistant Commissioner of Taxation (Senior Tax Counsel - Trevor Jones) had approved in writing the form for an income tax return for the year 1 July 2000 to 30 June 2001; (iv) at all material times the Commissioner of Taxation had delegated his powers and functions in respect of the issue and contents of the notice to Deputy Commissioner of Taxation, Tax Practitioner & Lodgement Strategy and this delegation was not at any material time revoked; (v) the notice was duly served on the defendant by serving it on 13 May 2014 on the defendant. At his address for service, namely xxxxxx CAMPBELLTOWN NSW 2560; (vi) the defendant failed to give a return in compliance with the notice; (vii) the period of time provided by the notice to give the return was reasonable."
It can be seen that this offence relates to an outstanding tax return for the financial year 2000/2001. The charge recited the requirement to provide a return which was given by notice dated 6 May 2014. The other 12 charges were in the same form, except they related to tax returns for the financial years 2002 to 2013 respectively.
The notice dated 6 May 2014 was tendered on this application. It was addressed to Mr Hardwick to an address in Campbelltown. It relevantly stated as follows: "Final notice to lodge income tax returns for Rodney Charles Hardwick. Under section 162 of the Income Tax Assessment Act 1936, as delegate of the Commissioner, I now require you to furnish the Commissioner of Taxation the following income tax returns for: Rodney Charles Hardwick by: 1 July 2014."
The letter then referred to financial years from 2001 to 30 June 2013 and continued: "Each return needs to: ● give a full statement total income from all sources in and out of Australia, and ● be completed in the approved form and signed by you or your authorised agent."
The balance of the notice indicated the address to lodge the return, advised that fines could be imposed for a failure to comply, the penalties that could be imposed for lodging late returns, and provided details as to how more information could be obtained. The letter was in the name of the Deputy Commissioner of Taxation, said to be the delegate of the Commissioner.
Mr Hardwick was served with the CAN on 13 July 2014. The proceedings in the Local Court were first mentioned on 28 August 2014. They were adjourned to 25 September 2014. The proceedings were then adjourned to 9 October 2014 as Mr Hardwick sought to file notices under s 78B of the Judiciary Act.
On 8 October 2014, Mr Hardwick filed a notice of motion in the Local Court seeking a stay of the prosecution. On the same date he filed the summons in these proceedings.
On 9 October 2014, Mr Hardwick's notice of motion seeking a stay was dismissed. From that time until 30 June 2015 the proceedings in the Local Court at Mount Druitt were adjourned. They were then transferred to the Downing Centre. As I understand it, they have been adjourned pending the outcome of at least these motions.

Mr Hardwick's principal complaint

Before outlining the details of Mr Hardwick's statement of claim and addressing the Court's jurisdiction to entertain these proceedings, it is necessary to address what appears to be the core of Mr Hardwick's contention that he is not required to file a taxation return in accordance with the current "approved form" applicable to such returns.
It seems that Mr Hardwick is the father of two ex-nuptial children. It also seems that he objects to making child maintenance payments for them under the scheme established by the Commonwealth. This scheme was established by the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988. That legislation provides a scheme for the registration of liabilities to make child maintenance payments, the assessments of those payments and the recovery of those liabilities. The mechanism of enforcement involves, or at least includes, the substitution of a new obligation on the non-custodial parent in the form of a debt owed to the Commonwealth in place of the obligation owed to the carer.
In Luton v Lessels [2002] HCA 13; 210 CLR 333, the High Court held that this scheme did not involve the imposition of taxation such that no possibility of a breach of s 55 of the Constitution arose in relation to its enactment. It was also held that the scheme did not involve a vesting of judicial power in a non-judicial officer contrary to Chapter III of the Constitution.
Although the liability created by this scheme does not have the character of a tax, as a debt due to the Commonwealth there is scope for it to be recovered via the tax system. To that end, s 72 of the Child Support (Registration and Collection) Act enables the Registrar of Child Support to require the Commissioner to pay any amount due by way of a tax refund to the Registrar to discharge a debt for child maintenance.
Further, s 202 of the Income Tax Assessment Act 1936 (the "ITAA 1936") sets out the objectives of the system of tax file numbers. Those objects relevantly include the object of facilitating the administration of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 (ITAA 1936, s 202(ga)).
Consistent with this, and although s 8WA(1) of the TAA precludes a person requiring or requesting another person to quote their tax file number, that prohibition is relaxed in a case of, inter alia, a person such as the Commissioner when acting in a manner consistent with s 202(ga) (see Whittaker v Child Support Registrar [2002] FCA 1430 at [4] per Dowsett J).
In separate proceedings now before the Family Court the Registrar of Child Support has sought recovery of outstanding child maintenance payments from Mr Hardwick. In those proceedings, Mr Hardwick has challenged the Constitutional validity of at least so much of the scheme of child support as relates to ex-nuptial children, presumably on the basis that the marriage power does not support such laws (Constitution, s 51(xxi); Re F; ex parte F [1986] HCA 41; 161 CLR 376). Amongst other things, as I understand it, Mr Hardwick contends that no power to make such laws in respect of ex-nuptial children has been the subject of any referral or, at least a valid referral, by the Queensland Parliament.
However, the prosecution of Mr Hardwick in the Local Court and these proceedings do not directly concern child maintenance obligations. Instead they concern Mr Hardwick's obligations to submit annual tax returns at least when directed to do so by the Commissioner.
As noted, Mr Hardwick has been prosecuted under s 8C(1)(a) of the TAA. It seems that one contentious matter is the form that this legislation took in the period 1999 to 16 October 2014. Various amendments were made to that provision between March 2012 and October 2014. However, ultimately on 16 October 2014 the provision was relevantly amended with retrospective effect to 22 December 1999 by the Tax and Superannuation Laws Amendment (2014 Measures No 4) Act 2014 so that, from that date, it is taken to have read as follows: "8C. Failure to comply with requirements under taxation law: (1) A person who refuses or fails when and as required under or pursuant to a taxation law to do so (a) to give an approved form or any information or document to the Commissioner or another person ; … is guilty of an offence."
The relevant "requirement" so far as Mr Hardwick is concerned is one which finds its source of power in s 162 of the ITAA 1936, which relevantly provides: "A person must if required by the Commissioner whether before or after the end of the year of income give the Commissioner within a time required and in the approved form: (a) a return or further or fuller return for a year of income or a specified period whether or not the person has given the Commissioner a return for the same period or (b) any information, statement or document about the person's financial affairs." (emphasis added)
Apparently it has been the case that since at least the financial year 2001, (and no doubt prior), that the Commissioner has published notices requiring the submission of income tax returns for the respective years by all tax payers. However, what is presently relevant is the requirement the subject of the charge against Mr Hardwick namely that set out in the letter of 6 May 2014. It appears that Mr Hardwick has a technical argument to the effect that the letter did not constitute a valid "requirement" to lodge the documents specified by the Commissioner. As I will explain, it is not necessary to address that argument but it may be a matter that he can agitate in the Local Court.
It suffices to state for these proceedings that the letter required Mr Hardwick to lodge returns for the outstanding financial years in the "approved form", being the standard form tax return that was apparently designated by the Commissioner relevant to all tax payers (see s 388-50 of Schedule 1 of the TAA). The essence of Mr Hardwick's complaint appears to be that the submission by him of information in accordance with that approved form would somehow involve him effectively consenting to the imposition of liabilities under the child support scheme described earlier. At the very least presumably it would involve him providing a tax file number which in turn could be provided to the Child Support Registrar pursuant to the provisions of the ITAA referred to above.
The nature of Mr Hardwick's complaint is encapsulated by [69] of his statement of claim, which states as follows: "From 30 June 2001 to present, the Plaintiff exercised his claim of right and refused to submit the 'approved form' demanded by the First Defendant on the ground that it was ultra vires the power of the First Defendant, thereby preventing the First Defendant from invoking the factum of the child support scheme, the statutory authority for the administering and facilitating the statutory benefit of child support pursuant to section 202(ga) of the Income Tax Assessment Act 1936 and attaching such statutory benefit to the Plaintiff."
Paragraph 70 of his statement of claim makes the same complaint, except that it substitutes "unconstitutional" for "ultra vires".
The "right" that is referred to in these paragraphs appears to be a reference to something which is particularised in [20] of his statement of claim as follows: "20. On the creation of the new TFN system the Federal Parliament created new rights and obligations upon persons who had been statutorily issued a TFN. PARTICULARS (I) One new obligation created upon a person, was that the person had to check for any new legislative purpose within section 202 of the Income Tax Assessment Act 1936, as amended by Federal Parliament, and provide such expressed consent through the submission of a yearly tax return, thereby authorising the First Defendant to provide the person's personal information and taxable income details to any other Government Agency as legislated by the Federal Parliament. (II) One new right created upon a person, was that the person had the right to consent to any new legislative purpose within section 202 of the Income Tax Assessment Act 1936, as amended by the Federal Parliament, and provide such expressed consent through the submission of a yearly tax return, thereby authorising the First Defendant to provide a person's personal information and taxable income details to any other Government Agency as legislated by the Federal Parliament. (III) Another new right created upon a person, was that the person had the right NOT to consent for their personal information and taxable income details to be provided to any other Government Agency pursuant to section 202 of the Income Tax Assessment Act 1936, as legislated by the Federal Parliament."
The short answer to all of these assertions is that there is no such "right" of a kind pleaded in [20] in the statement of claim and referred to in [69]. In his oral submissions, Mr Hardwick sought to articulate that he had a "right" to choose whether to be subject to the obligations imposed by the child support scheme. This appears to reflect the form of right that is referred to in [20]. However, the laws establishing the scheme and the relevant tax laws operate according to the terms and not according to Mr Hardwick or any other person's preference, choice or consent. In the absence of there being any legal basis whatsoever for the form of "right" that is asserted, there is no basis for impugning the validity of the approved form that is applicable to tax payers' returns.
Otherwise, for the reasons already noted, s 8WA(1) of the TAA does not preclude the Commissioner making a request for a tax file number to a person and upon receipt of a tax file number using that number to facilitate the child support scheme. Otherwise, as noted by Gotterson JA in The Queen v Whittaker [2015] QCA 116 at [4], the proposition that the "lawful making of a request by the Commissioner under s 162 is, in some way, constrained by the tax file number system" is untenable.
It also needs to be stated that this rejection of any suggestion that Mr Hardwick has a "right" of the kind he asserts or any other basis from immunity from the legal requirement to submit tax returns on the approved form is applicable irrespective of whether he is successful in demonstrating the invalidity of the child support scheme so far as it applies to ex-nuptial children. No part of the tax legislation that relates to the requirements for lodging tax returns is dependent upon the validity of the child support scheme so far as it applies to ex-nuptial children.

The Statement of Claim

As noted on 8 October 2014, Mr Hardwick filed a summons. He named the Commissioner as the sole defendant to the proceedings. In the summons he sought various declarations as to the constitutional validity of the child support scheme. As noted, he has now raised those issues in the Family Court. Subsequently, on 23 April 2015, Mr Hardwick filed a statement of claim which, as I have stated, names the Commissioner and the CDPP as defendants.
The statement of claim includes 23 prayers of relief, none of which appear to correspond with the relief sought in the summons. In its written submissions the Commissioner stated that he was proceeding on the basis that the case as pleaded represented the case sought to be made by Mr Hardwick. In his written and oral submissions Mr Hardwick did not dispute that contention. The Court will proceed on the same basis.
The structure and content of the statement of claim can be summarised as follows.
Prayer 1 seeks a declaration that s 39B(1B) of the Judiciary Act applies to these proceedings. As I will explain, this appears to be nothing more than a statement of this Court's jurisdiction.
Prayer 2 seeks a declaration that the plaintiff falls within a particular class of person, namely those who are the non-married parents of ex-nuptial children who have not applied for or received any Commonwealth pension, benefit or child support and who have allegedly "not elected" through the provision of the "approved form" to invoke s 202(ga) of the ITAA 1936, but have instead "requested the Federal Commissioner of Taxation to provide the 'approved form' which recognises the plaintiff's standing in not accepting the statutory benefit conferred by s 202(ga)". Thus, this prayer for relief reflects the right that I discussed earlier that is asserted by Mr Hardwick.
Prayers 3, 5, 7 and 9 of the statement of claim seek declarations that s 8C of the ITAA generally or in its application to a particular set of circumstances is unconstitutional as it "removed a person's constitutional guarantee under the Constitution of freedom of contract".
Prayers 4, 6, 8 and 10 seek declarations that certain amendments to s 8C some of which have retrospective effect do not "cure the defect" in s 8C being its supposed infringement of the alleged constitutional guarantee to which I have just referred.
Prayer 11 seeks a declaration that s 8C(1)(a) of the ITAA is constitutionally invalid so far as it applies to offences under s 162 of the ITAA 1936 "as it dishonestly and fraudulently obtained a person's consent for the administration and facilitation of the federal statutory benefit pursuant to s 202(ga)" of the ITAA 1936. The prayer alleges that this action is a "deliberate breach of duty by the Federal Parliament".
Prayer 12 seeks a declaration that "the Federal Parliament cannot empower" the Commissioner to prosecute a person for an offence under s 8C when the defendant is a person in the category which the plaintiff supposedly falls within, being the category identified in prayer 2.
Prayers 13 to 15 seek various forms of consequential relief in the form of mandamus or an injunction against the Commissioner which appear to relate to prayer 12.
Prayer 16 seeks a similar declaration to prayer 12 in respect of the power of Federal Parliament to empower the CDPP to prosecute a person who falls within a specified class for an offence against s 8C of the TAA.
Prayer 17 seeks an order in the nature of an injunction against the CDPP from prosecuting Mr Hardwick.
Prayer 18 seeks an order in the nature of mandamus against the Commissioner ordering him to inform the Child Support Registrar of the plaintiff's "true legal standing" that namely "he belongs to a 'specific class' of persons" referred to in prayer 2.
Prayers 19 to 20 seek orders in the form of prohibition or injunction restraining the Commissioner from providing any of the plaintiff's personal information and taxable income details to the Child Support Registrar.
Prayer 21 seeks a transfer of the criminal proceedings pending in the Local Court to this Court. Prayer 22 seeks a stay of the proceedings and prayer 23 seeks an order that those proceedings be dismissed.
In some respects it is difficult to relate the facts pleaded in the statement of claim to the relief sought. Paragraphs 2 to 20 of the statement of claim plead various facts surrounding the introduction of the tax file numbers system in 1988. In relation to this section of the statement of claim I have already outlined the "right" that is asserted in paragraph 20.
Paragraphs 21 to 24 recite what is said to be the effect of statutory provisions concerning the inclusion in the TAA of the requirement to submit "an approved form". Paragraph 26 pleads that in 2000 and 2001 the Commissioner acting as the Child Support Registrar issued garnishee notices to Mr Hardwick's employer and "obtained by fraud" his wages.
Paragraph 27 recites that on 30 June 2001, Parliament introduced s 202(ga) into ITAA 1936. Paragraphs 32 to 43 plead that between 2001 and 2013 the Commissioner "failed to provide the approved form for the sub class of persons to which the Plaintiff belongs". Again, this allegation appears to reflect the plaintiff's contention that somehow he had some form of right not to be subjected to child support obligations, not to be subject to s 202(ga) of ITAA 1936 and instead to have some separate type of "approved form" applicable to his circumstances.
Paragraphs 44 to 49 of the statement of claim recite various facts concerning the notices issued to Mr Hardwick under s 8C and the filing of a CAN in these proceedings. Paragraphs 50 to 53 recite certain events concerning the making of amendments to s 8C as well as the assumption of the prosecution against him by the CDPP. Paragraph 65 of the statement of claim recites the effect of the notices issued under s 78B of the Judiciary Act by Mr Hardwick in February 2015.
Paragraphs 66 to 82 purport to summarise Mr Hardwick's contentions. I have already outlined the effect of paragraphs 69 and 70.
Paragraphs 71 to 74 plead the invalidity or illegality of various acts and decisions all of which are predicated on an acceptance of the proposition that Mr Hardwick cannot be required to provide a tax return in accordance with the current approved form. Paragraphs 75 and 76 repeat the assertions about the effects of various amendments to s 8C of the TAA which I have referred to above.

Jurisdiction

Ultimately, it was common ground between the parties that this Court has jurisdiction to entertain and, if so, to dismiss the various claims for relief in these proceedings. Nevertheless as that matter is not clear, the basis for that jurisdiction needs to be identified. This is particularly the case because, in respect of one matter, the source of the jurisdiction conditions the manner of its exercise.
Section 38 of the Judiciary Act provides that the High Court's jurisdiction in respect of the subject matters identified in s 38(a) to (e) is exclusive of the jurisdiction of the several Courts of the States which, of course, includes this Court. One such subject matter is matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or the Federal Court. Nevertheless, there are four relevant grants of jurisdiction to this Court to be found within the Judiciary Act, namely ss 39(2), 39B(1B), 44(3) and 68. Of these, provisions s 39 and s 39B are of particular relevance. Those provisions provide: "Federal jurisdiction of State Courts in other matters 39(1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section. 39(2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions: …" "39B Original jurisdiction of Federal Court of Australia (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. … (1B) If a decision to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or Territory: (a) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and (b) the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced is invested with, or has conferred on it, jurisdiction with respect to any such matter."
In relation to s 39(2), one matter which is within the High Court's jurisdiction but which is not exclusive to that Court's jurisdiction as stated in s 38 is a matter arising under the Constitution (see Constitution, s 76(i), Judiciary Act s 30). As no issue arises in relation to the relevant limits on this Court's power by reason of subject matter or locality, it follows that this Court can deal with Mr Hardwick's claim that s 8C(1)(a) is constitutionally invalid.
One matter that is exclusive to the High Court and is thus not conferred by s 39(2) is the power to issue a writ of mandamus or prohibition to or grant injunction against a Commonwealth officer. However, at least so far as the relief claimed in this Court concerns a "matter" in which a person seeks such a writ or injunction against an officer or officers of the Commonwealth in relation to the decision to prosecute Mr Hardwick for an offence against Commonwealth law in a State Court, namely s 8C, then s 39B(1B) confers jurisdiction on the Court to consider that matter. This power was not spent on the prosecution being actually commenced (see Phong v Attorney General and Ors (2001) 114 FCR 75 at [67] to [69]).
Prayers for relief 13 and 17 answer that description in that they seek orders against each of the Commissioner and the CDPP preventing them from prosecuting Mr Hardwick. However, prayers 14, 15, 19 and 20 do not answer that description. As stated, they seek orders against the Commissioner the effect of which is to require him to provide some special form of approved form to Mr Hardwick and precluding the provision of his personal information and taxable income details to the Child Support Registrar. These claims appear to be distinct from the other claims in the proceedings.
The only other source of jurisdiction in this Court to consider those claims is s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the "Commonwealth Cross-Vesting Act") which relevantly provides: "Additional jurisdiction of certain courts (1) Where: (a) the Federal Court or the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and (b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter; then: (c) in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory) - that court is invested with federal jurisdiction with respect to that matter; or (d) in the case of the Supreme Court of a Territory (including the Australian Capital Territory and the Northern Territory) - jurisdiction is conferred on that court with respect to that matter. …"
In respect of prayers for relief 14, 15, 19 and 20 the Federal Court certainly does have jurisdiction with respect to claims for mandamus prohibition or injunction against a Commonwealth officer (Judiciary Act s 39B(1)). For the reasons already stated, the effect of s 39(1) and (2) of the Judiciary Act is that this Court does not, apart from s 4(1)(b) of the Commonwealth Cross-Vesting Act, have jurisdiction with respect to such matters. It follows that s 4(1)(a) and (b) of the Commonwealth Cross-Vesting Act are satisfied (see Hopkins v Governor General [2013] NSWCA 365).
However, as this aspect of the proceedings fall within the original jurisdiction of the Federal Court by virtue of s 39B of the Judiciary Act they constitute a "special Federal matter" within the meaning of s 3(1) of the Jurisdiction of the Court (Cross-Vesting) Act (NSW) (the "State Cross-Vesting Act"). By the operation of s 6(1) of the State Cross-Vesting Act, this Court must transfer the proceedings to the Federal Court (or a Court referred to in s 6(2)(b)) unless the Court makes an order under s 6(3) of the State Cross-Vesting Act.
Under s 6(3) the Court can order that the proceedings be determined by this Court if it is satisfied that there are "special reasons for doing so". Before making an order notice must be given to the Attorney General and the Commonwealth Attorney General (s 6(4)). Notice has been given.
In my view there are "special reasons" for this Court proceeding to determine these claims. The claims have some connection to the proceedings that are pending in this Court which concern the prosecution of the person that is pending in a state Court, namely the Local Court. Most significantly, for the reasons I have already partly addressed and will expand upon, the proceedings are properly characterised as frivolous. Neither another Court nor the parties should be burdened with the cost and expense of dealing with these proceedings any further (see Hammond v The State of NSW [2013] NSWSC 1930 at [41] per Adamson J). Further, any further delay in these proceedings has the potential to interfere with the orderly disposition of the work of the Local Court.

Summary dismissal

The principles applicable to a summary dismissal were stated by Gleeson JA in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196] to [200] as follows: "196. It is not in dispute that 'great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal': General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ). 197. More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]: 'Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.' 198. Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24]. 199. In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]: 'The question is … whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated.' 200. Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24]."
Consistent with the last paragraph of this passage, none of the following reasons for dismissing any part of Mr Hardwick's claim turns upon any relevant question of fact.
The first matter to be addressed is so much of the statement of claim that is predicated on the existence of a so-called "constitutional guarantee … of freedom of contract". Any claim that such an implied freedom exists is completely without foundation. The existence of such an implication is inconsistent with almost all grants of Federal legislative power especially but not restricted to that conferred by s 51(xxxv) of the Constitution, which confers power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the states. Of necessity, laws made under those heads of power and, in particular, that head of power, will interfere with contractual rights.
The closest support for any such concept is to be found in those judgments that identify s 92 of the Constitution as protecting an individual's freedom to engage in interstate trade (see, for example, Samuels v Readers' Digest [1969] HCA 6; 120 CLR 1 at 15 per Barwick CJ). Of course, even that doctrine was limited to interstate trade and, in any event, it has now passed into history (Cole v Whitfield [1988] HCA 18; 165 CLR 360). Otherwise there has never been an equivalent to the outcome of the decision of Lochner v New York (1905) 98 US 45 in this country.
Further, the only suggested interference with any such right pleaded in the statement of claim is the obligation imposed by s 8C of TAA and s 162 of the ITAA 1936 to submit tax returns. The operation of those provisions has been explained. They do not interfere which any contractual rights. They compel the production of the information for the purpose of administering the tax laws of the Commonwealth.
It follows that prayers 3, 5, 7 and 9 must be dismissed.
Prayers 4, 6, 8 and 10 are all predicated on the existence of some form of constitutional "defect" identified in prayers 3, 5, 7 and 9. It follows that they must be dismissed.
Second, prayer 11 attacks the capacity of the Federal Parliament to enact s 8C(1)(a) on the basis that "it", being Federal Parliament, "dishonestly and fraudulently obtained a person's consent" presumably being Mr Hardwick's consent. As I have stated, the prayer for relief also alleges that those actions by Parliament constituted a "deliberate breach of [its] duty". Prayers 12 and 16 attack the capacity of the Federal Parliament to enact laws empowering the Commissioner and the CDPP to prosecute persons under s 8C who fall into the category identified in prayer 2.
The legislative basis for the power to prosecute is not identified. In any event, all of these declarations appear to rest upon the premise that the people who fall into the category that Mr Hardwick asserts he does are immune from the requirement under s 162 of ITAA 1936 to complete their tax returns on the forms applicable to everyone else. For the reasons already stated, that contention is baseless. Otherwise legislation is not amenable to attack on the basis that the Parliament's motives in enacting it were either dishonest or fraudulent. It follows that the claims in prayers 11, 12 and 16 must be dismissed.
Third, as I have stated, prayers 13 and 17 seek injunctions restraining the CDPP and the Commissioner from prosecuting Mr Hardwick. The statement of claim, especially paragraphs 55 to 58, make it clear that the basis for that contention is an asserted intention of Parliament to remove the requirement for a tax payer to lodge the "approved form".
The basis for that contention appears to be an amendment that was made to s 8C on 21 March 2012 by the Tax Laws Amendment (2011 Measures No 9) Act 2012 and, in particular, by item 29 Part 4 Schedule 6 which retrospectively amended s 8C(1)(a) from 22 December 2009 so that it read that an offence was committed by a "person who refuses or fails, when and as required under or pursuant to a taxation law to do so to give any information or document to the Commissioner or another person"; i.e. it removed the reference to "approved form" in s 8C(1)(a).
However, this contention in the statement of claim is specious. First, the reference to "approved form" was re-introduced into s 8C with retrospective effect by the legislation referred to earlier. Second, at all material times s 162 of the ITAA 1936 contained a reference to "approved form". The charge against Mr Hardwick alleges that he failed to comply with a notice under s 162 to "give a document". All the versions of s 8C contained a reference to the requirement to "give" a document. The document in question is the tax return prepared in accordance with the approved form. Thus, prayers 13 and 17 are untenable and must be dismissed.
As noted, prayers 14 and 15 seek orders requiring the Commissioner to provide an "approved form" to Mr Hardwick. This appears to be predicated upon his contention that he had some special entitlement to receive an "approved form" because of the class of persons which he claims to be a part of. For the reasons stated, this proposition is untenable. These prayers will be dismissed.
Fifth, prayer 18 seeks an order that the Commissioner advise the Child Support Registrar of the plaintiff's "true legal standing" which, as I have stated, appears to be a reference to the assertion that he falls within the category of people described in prayer 2. Prayers 19 and 20 seek prohibition or an injunction preventing the plaintiff's personal taxation and information details being provided to the Child Support Registrar. These claims appear to be predicated on the pleaded contention that in seeking Mr Hardwick's tax returns, the Commissioner "acted to facilitate the function of administering and facilitating the federal statutory concept of child support and not taxation". Even if the issue of the notice was undertaken for that purpose, it would not matter. The issuing of a notice seeking the lodgement of a tax return in the knowledge or understanding that such information as is obtained will be released to the Child Support Registrar is a matter that is specifically contemplated by the statutory regime. It follows that prayers 18, 19 and 20 must be dismissed.
Sixth, as stated, prayer 21 seeks a transfer of the criminal proceedings pending in the Local Court to this Court. The prayer seeks to invoke s 140(1) of the Civil Procedure Act 2005. However, that provision operates upon civil proceedings, not criminal proceedings (see Civil Procedure Act s 4(1)). The claim is untenable and must be dismissed.
Seventh, as stated, prayer 22 seeks a stay of the criminal proceedings. The basis of the stay is said to be s 67 of the Civil Procedure Act. For the reasons I have already stated, the Civil Procedure Act is not the source of power to make such an order. Nevertheless, this Court does have the power to stay criminal proceedings in the Local Court if it is relevantly satisfied that they are an abuse of process. However, there is nothing pleaded in the statement of claim that could tenably support a contention that those proceedings are an abuse of process. This claim must be dismissed.
Eighth, as stated, prayer 23 seeks an order that the proceedings be dismissed. No basis for any such order, much less any basis for the power of this Court to make such an order, has been demonstrated. This claim must be dismissed.

Mr Hardwick's written submissions

Mr Hardwick lodged written submissions in response to the notices of motion filed by the Commissioner and the Director and the very fulsome submissions that were put in support thereof. Part of his written submissions recount the difficulties that he encountered with his computer system, which appear to be very considerable. Nevertheless, in the final submissions, he was able to address various arguments. However, it should be noted that he did not seek to respond to the arguments that were put forward concerning the defects with his statement of claim, most of which are reflected in this judgment, although it was clear that he had an opportunity to do so.
In oral submissions the Court called upon Mr Hardwick first. He was given a further opportunity to address the matters raised but, in substance, he could put nothing.
The substantive part of Mr Hardwick's written submissions appear to argue that the notice of 6 May 2014 was invalid as a matter of form. It sought to rely upon notice that had been issued by the Commissioner in January 2014 and then later withdrawn. No part of Mr Hardwick's statement of claim makes any complaint of this kind. Accordingly, I have not sought to address it. I note that it may be a matter that Mr Hardwick could seek to argue in any defence of the charges against him in the Local Court.

Conclusion

All the claims for relief and the matters put in support of them in the statement of claim are completely untenable. It follows that the Court orders that: (1) The proceedings be dismissed. [Parties addressed on costs.]
No special costs order is sought, but otherwise Mr Hardwick accepts that costs must follow the event. Accordingly, the Court orders that: (2) The plaintiff pay the defendants' costs of the proceedings.

Amendments 30 October 2015 - Paragraph 11 amended by removing "of" between "Deputy" and "Commissioner".

Paragraph 21 amended by inserting "i" into s 51(xx).

Paragraph 55 amended by inserting "of the" between "exclusive" and "jurisdiction". 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: 30 October 2015

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (8)

Cases Cited (16)

Cited By (1)