DEPUTY COMMISSIONER OF TAXATION -v- WOLSKI [2026] WADC 44

[2026] WADC 44 [2026] WADC 44 (PC) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : DEPUTY COMMISSIONER OF TAXATION -v- WOLSKI [2026] WADC 44 CORAM : RITTER DCJ HEARD : 15 MAY 2025 DELIVERED : 16 JUNE 2026 FILE NO/S : CIV 3181 of 2023 BETWEEN : DEPUTY COMMISSIONER OF TAXATION Plaintiff AND ZYGMUND WOLSKI Defendant Catchwords: Appeal of registrar's decision - Summary judgment application - Recovery of tax related liabilities - Director penalty regime - Pay As You Go Withholding provisions - Statutory defences - Estoppel - Legal status of the Australian Taxation Office - No power over the living - UNIDROIT - Appeal dismissed Legislation: Commonwealth of Australia Constitution Act 1900 (UK) Corporations Act 2001 (Cth) District Court of Western Australia Act 1969 (WA) -- 1 of 24 -- [2026] WADC 44 [2026] WADC 44 (PC) Page 2 District Court Rules 2005 (WA) Rules of the Supreme Court 1971 (WA) Supreme Court Act 1935 (WA) Taxation Administration Act 1953 (Cth) Result: Appeal dismissed Representation: Counsel: Plaintiff : Ms V E Long-Droppert Defendant : In person Solicitors: Plaintiff : Australian Taxation Office, Legal Services Branch Defendant : Not applicable Case(s) referred to in decision(s): Bendigo and Adelaide Bank Ltd v Smith [2019] WASC 296 Canty v Deputy Commission of Taxation [2005] NSWCA 84 Cappelleri v Cappelleri [2024] VSCA 173 Deputy Commissioner of Taxation v Lewer [2001] VSC 114 Deputy Commissioner of Taxation v Quach [2020] WASC 291 Deputy Commissioner of Taxation v Roche [2014] WASC 222 Deputy Commissioner of Taxation v Rojas (No 2) [2013] NSWDC 9 Deputy Commissioner of Taxation v Wolski [2024] WADC 78 Kelly v Fiander [2024] WASC 275 Kolichis v Deputy Commissioner of Taxation [2014] WASCA 76 Re Palmer [2023] VSCA 322 Re Scobie; Ex parte Commissioner of Taxation (1995) 59 FCR 177 Roche v Deputy Commissioner of Taxation [2015] WASCA 196 Snell v Deputy Commissioner of Taxation [2020] NSWCA 29 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Webb v Deputy Commissioner of Taxation [2017] FCA 1520 -- 2 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 3 RITTER DCJ: The plaintiff's claim 1 In these proceedings the plaintiff, the Deputy Commissioner of Taxation (DCT) claims the defendant, Mr Zygmund Wolski, is indebted to the Commonwealth of Australia (Commonwealth) for director penalties. The claim is, essentially, for the defendant to pay director penalties under s 269-20 of sch 1 to the Taxation Administration Act 1953 (Cth) (TAA) in the sum of $502,443.91. 2 A writ with a statement of claim was served on the defendant, and the defendant entered an appearance and filed a defence. Summary judgment application 3 By chamber summons dated 28 March 2024 the DCT sought summary judgment pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (the Rules). These Rules apply to the District Court except in the case of conflict or inconsistency.1 In the present case there is no asserted conflict or inconsistency. 4 The application for summary judgment sought the following orders: (a) summary judgment against the defendant for tax-related liabilities in the amount of $502,443.91; (b) interest pursuant to s 32 of the Supreme Court Act 1935 (WA); and (c) costs fixed in the amount of $2,931.97. 5 Affidavits were filed in support of and against the summary judgment application. They will be listed shortly. 6 The application was heard by a registrar of the court. The registrar granted the application and made the orders sought by the DCT. The registrar provided detailed reasons for decision.2 An appeal against the registrar's decision 7 The defendant has appealed against the decision. 1 The Rules, r 6. 2 Deputy Commissioner of Taxation v Wolski [2024] WADC 78 (registrar's reasons). -- 3 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 4 8 In the appeal notice the defendant specifies that the order appealed against is the summary judgment decision of Registrar Nairn on 18 September 2024. The order sought on appeal is specified as being the 'setting aside of the registrar's order granting judgment to the plaintiff'. 9 Rule 15 of the District Court Rules 2005 (WA) (District Court Rules) provides for appeals from the decisions of registrars. Rule 15(6) of the District Court Rules provides that the appeal is to be by way of a new hearing of the matter that was before the registrar. 10 Accordingly it is not for the defendant to establish any particular error in the decision of the registrar. It remains for the DCT to establish that the summary judgment must be granted. 11 Despite this there is no reason why the reasons of the registrar may not be referred to in the court's consideration of the facts and law relevant to the summary judgment application. Summary judgment application 12 Order 14 r 2 of the Rules provides that an application for summary judgment must be supported by an affidavit verifying the facts on which the claim is based and stating that in the deponent's belief there is no defence to the claim. As set out shortly, such an affidavit has been filed. 13 Order 14 r 3 of the Rules provides that the court may grant summary judgment unless it dismisses the application or the court is satisfied that there is an issue or question in dispute which ought to be tried, or there is some other reason why a trial is necessary. Pursuant to O 14 r 4 of the Rules, a defendant may be given leave to defend by showing cause against an application for summary judgment by affidavit or otherwise to the satisfaction of the court. 14 As in any summary judgment application the DCT, as the plaintiff, has the legal onus to establish that there is no real question to be tried. However once the requirements of O 14 r 2 of the Rules are satisfied, a plaintiff has a prima facie right to an order for summary judgment, and the evidentiary burden moves to a defendant to satisfy the court there is a triable issue or arguable defence.3 3 Bendigo and Adelaide Bank Ltd v Smith [2019] WASC 296 [24] (Strk AJ). -- 4 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 5 15 The principles to be applied in deciding a summary judgment application are not in doubt. They were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd as follows:4 The principles to be applied on an application for summary judgment are well-established. Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55]. Evidence 16 In support of the summary judgment application and the appeal, the DCT has filed the following affidavits: 1. Affidavit of Craig Mitchell affirmed on 28 March 2024 (Mitchell affidavit). This affidavit was filed in compliance with O 14 r 2 of the Rules; 2. Affidavit of Barbara Ann Martin affirmed on 29 April 2024 (Martin affidavit); 3. Affidavit of Victoria Elizabeth Vuori affirmed on 13 June 2024 (Vuori affidavit); 4. Affidavit of Arulkumaran Jeganathan affirmed on 1 July 2024 (Jeganathan affidavit); and 5. Affidavit of Sayeda Islam affirmed on 13 May 2025 (Islam affidavit). 17 In opposing the application for summary judgment the defendant has filed: 1. Affidavit of Zygmund Wolski sworn on 16 May 2024 (Wolski affidavit); and 4 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]. -- 5 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 6 2. Affidavit of Zygmund Wolski sworn on 25 November 2024 (Second Wolski affidavit). Written submissions 18 Both parties filed written submissions in the appeal. The document filed by the defendant on 25 November 2024 is headed 'Affidavit and Submissions of Zygmund Wolski in Opposition to Summary Judgment'. However, the document reads as an affidavit. 19 In written submissions filed by the DCT there is a comprehensive statement of the law and facts in support of the summary judgment application, in terms which I accept. Recovery of tax-related liabilities 20 Pursuant to s 255-5(1) of sch 1 to the Taxation Administration Act 1953 (Cth) (TAA), a tax-related liability that is due and payable is a debt due to the Commonwealth and payable to the Commissioner of Taxation.5 21 The DCT may recover any unpaid tax-related liability in a court of competent jurisdiction.6 22 The following evidential provisions apply in proceedings to recover an amount of a tax-related liability: (a) a statement or averment about a matter in the plaintiff's complaint, claim or declaration is prima facie evidence of the matter.7 Evidence given in support or rebuttal of the matter must be considered on its merits;8 (b) evidence may be given by way of affidavit;9 and (c) the production of an evidentiary certificate signed by the Commissioner, a Secondary Commissioner, a Deputy Commissioner or a delegate of the Commissioner that states that, from the time specified in the certificate, an amount is 5 'Tax-related liability' is defined in s 255-1 of sch 1 to the TAA to mean 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). Section 995-1(1) of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997), which applies sch 1 to the TAA by operation of subsection (3AA)(2) to the TAA defines 'taxation law'. 6 Section 255-5(2) of sch 1 to the TAA. 7 Section 350-20(1) of sch 1 to the TAA. 8 Section 350-20(4) of sch 1 to the TAA. 9 Section 350-25(a) of sch 1 to the TAA. -- 6 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 7 payable under a taxation law to the Commissioner, is prima facie evidence that the amount is payable from that time and the particulars stated in the certificate are correct.10 11 12 23 The use of evidentiary certificates and reliance on prima facie provisions in Commonwealth taxation legislation has been widely accepted by the courts.13 24 More specifically in Kolichis v Deputy Commissioner of Taxation, the Court of Appeal decided that for the purposes of O 14 r 2(1) of the Rules the Commissioner's claim could be sufficiently verified by deposing to and annexing a true copy of the relevant evidentiary certificate.14 Director penalty regime - introduction 25 The director penalty regime in div 269 of sch 1 provides for penalties to be imposed on directors of non-complying companies. Section 269-5 provides that objects of the division include that a company meets its obligation to pay amounts including those withheld under div 12, to the Commissioner, in accordance with subdiv 16-B (Pay As You Go Withholding (PAYGW) obligation) or it goes promptly into voluntary administration under the Corporations Act 2001 (Cth) or into liquidation. Pay As You Go Withholding provisions15 26 Pursuant to div 12 of sch 1, relevantly, a corporation is required to withhold an amount from payments including those made to employees or officeholders. The withheld amounts must be paid to the Commissioner in accordance with s 16-70(1) by the due dates set out in s 16-75. 10 Section 350-10(3) and s 350-12 of sch 1 to the TAA. 11 Regulation 24 of the Taxation Administration Regulations 2017 (Cth) provides for presumptions as to the regularity of documents; Section 350-15 of sch 1 to the TAA provides that judicial notice must be taken of signatures of the Commissioner, a Deputy Commissioner or a delegate of the Commissioner. 12 The submissions of the DCT and these reasons reflect the amendments to sch 1 to the TAA made by the Treasury Laws Amendment (2019 Measures No 3) Act 2020 (Cth) (the TLA Act). Item 131 of sch 3 to the TLA Act repealed s 255-45, s 255-50 and s 255-55 of sch 1 to the TAA and replaced those provisions respectively with s 350-12, s 350-20 and s 350-25 of sch 1 to the TAA, commencing 1 July 2020. These new provisions are substantively identical to the repealed provisions, except that the power to issue an evidentiary certificate previously found in s 255-45 is now found in s 350-10(3). In view of the absence of any substantive change to the provisions, the DCT submitted that the case law on the now repealed provisions remains relevant to the application of the new provisions. This was accepted in Deputy Commissioner of Taxation v Quach [2020] WASC 291 [34]. 13 Deputy Commissioner of Taxation v Lewer [2001] VSC 114[6]. 14 Kolichis v Deputy Commissioner of Taxation [2014] WASCA 76 [23]. 15 In this part of the reasons, the legislative references are to sch 1 to the TAA unless otherwise stated. -- 7 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 8 Director penalty regime - director's obligations 27 Section 269-10(1) of sch 1 to the TAA identifies the obligations which a director must cause the relevant company to comply with.16 The obligations on the director arise if on a particular day (the initial day), relevantly, the company withholds an amount under div 12 and the company is obliged to pay to the Commissioner the amount in accordance with subdiv 16-B on or before a particular day (the due day).17 28 Section 269-15(1) provides the directors of the company, from time to time, on or after the initial day must cause the company to comply with its obligation. 29 Section 269-15(2) provides that the directors of the company, from time to time, continue to be under that obligation until: (a) the company complies with its obligation; (b) an administrator is appointed to the company under s 436A, s 436B or s 436C of the Corporations Act 2001; or … (c) the company begins to be wound up within the meaning of the Corporations Act. Director penalties 30 A director is liable to pay a penalty if the obligations of that director pursuant to s 269-15 are not complied with at the end of the due day.18 31 The penalty is due and payable at the end of the due day.19 32 The amount of the penalty is equal to the unpaid amount of the company's liability pursuant to its obligations.20 16 Section 269-15(1) of sch 1 to the TAA provides that the director penalty regime applies to directors as defined in the Corporations Act 2001 (Cth). 17 Section 269-10(2) of sch 1 to the TAA provides that div 269 applies in relation to an amount that the company purports to withhold under div 12, but is not required to withhold, as if the company were required to withhold the amount. 18 Section 269-20(1) of sch 1 to the TAA. Pursuant to s 269-15(2), s 269-20(1) applies even if a director ceased to be a director before the end of the due day. 19 Section 269-20(2) of sch 1 to the TAA. 20 Section 269-20(5) of sch 1 to the TAA. -- 8 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 9 Recovery of director penalties 33 The Commissioner must not commence proceedings against a director to recover a penalty unless the Commissioner has given 21 days' notice to the director setting out what the Commissioner thinks is the unpaid amount of the company's liability under its obligations.21 The penalty is remitted if, before or within 21 days after the Commissioner gives the director penalty notice (DPN), the director stops being under the obligation because the company's liability has been discharged; or an administrator is appointed to the company; or the company begins to be wound up.22 34 The remittal of the penalty provision is subject to s 269-30(2) of sch 1 to the TAA which prescribes circumstances in which the penalty will not be remitted despite the appointment of an administrator or the winding up of the company. The provisions of s 269-30(2) are often referred to as the 'lockdown provisions'. Relevantly, s 269-30(2) provides that in respect of a PAYGW obligation a penalty is not remitted to the extent that the company does not notify the Commissioner on or before the last day of the three months after the due day under s 16-150 of the amount the company is obliged to pay, or an administrator is appointed, or the company begins to be wound up after the last day of the three months after the due day.23 35 The DPN does not of itself impose a liability or create a right of action. It is simply a temporal precondition to the power of the Commissioner to commence proceedings to recover the penalty. Additionally, the obligations of a director do not commence with the issue and receipt of a DPN. Directors are under an obligation to comply at all times from the time when the company has the obligation. That obligation continues beyond the due date until one of the three matters, referred to above and as outlined in s 269-15(2), occurs.24 36 The purpose of the DPN is simply to inform the recipient of the unpaid amount and alternative courses available to result in the remission of the penalty. 21 Section 269-25 of sch 1 to the TAA. The meaning of 'thinks' was discussed in Snell v Deputy Commissioner of Taxation [2020] NSWCA 29 [38] - [39] (Snell). The notice is often referred to as a director penalty notice or DPN. The contents of a DPN are otherwise prescribed by s 269-25(2) of sch 1 to the TAA. 22 Section 269-30(1) of sch 1 to the TAA. 23 Item 1 of the table in s 269-30(2) of sch 1 to the TAA. 24 Re Scobie; Ex parte Commissioner of Taxation (1995) 59 FCR 177, 182 - 183. -- 9 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 10 37 A DPN may be given to a director in different ways, being: (a) given at the time the Commissioner leaves or posts it with or to a director;25 or (b) by the Commissioner leaving it or posting it to an address that appears from information held by the Australian Securities and Investments Commission (ASIC) to be or have been within the last seven days the place of residence or business of the director.26 38 A DPN is validly served even if not in fact received by the addressee.27 The claim of the Deputy Commissioner of Taxation against the defendant 39 As deposed to in the Mitchell affidavit: (a) Mint Investments Pty Ltd (ACN 070 135 170) (the company) was incorporated on 30 June 1995;28 (b) the defendant became a director of the company on 30 June 1995 and ceased to be a director on 11 January 2018;29 (c) the company was wound up on 11 January 2018; and30 (d) the defendant's liability for director penalties arises in respect of the Company's failure to pay the Commissioner by the relevant due dates actual amounts withheld under the PAYGW provisions, in the sum of $502,443.91.31 40 In par 2 of his defence, the defendant has admitted that he was a director of the company at all relevant times. 41 Additionally with respect to the defence to the summary judgment application the defendant has not filed evidence to contest the tax-related liability or the prima facie conclusions arising from the evidentiary certificates. 25 Section 269-25(4) of sch 1 to the TAA. 26 Section 269-50 of sch 1 to the TAA. 27 Deputy Commissioner of Taxation v Rojas (No 2) [2013] NSWDC 9 [26]. 28 Mitchell affidavit, Annexure CM-1, page 10. 29 Mitchell affidavit, par 7 and Annexure CM-1, pages 11 - 12. 30 Mitchell affidavit, Annexure CM-1, page 11. 31 Mitchell affidavit, par 10 and Annexures CM-2 - CM-4. -- 10 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 11 42 The company has failed to pay the amounts due by the due dates.32 As a result, the defendant became liable to pay the Commissioner a penalty of an amount equal to each unpaid amount. 43 As asserted by the DCT, the lockdown provisions apply to the amount of $502,443.91 with respect to the PAYGW obligation. This is because in respect of that amount, the company did not notify the Commissioner in the period of three months following the due date under s 16-150 of sch 1 to the TAA, of the amount the company was obliged to pay (the lockdown amount). 44 Written notice of the penalty was given to the defendant on 4 June 2018 and 27 September 2018.33 An administrator was appointed to the company on 12 September 2012.34 45 With respect to the lockdown amounts, the penalty was not remitted under s 269-30(1) of sch 1 to the TAA despite the appointment of an administrator or the winding up of the company. This is due to the lockdown provisions in s 269-30(2).35 The defendant's defence 46 The DCT asserts the defendant has not raised any arguable defence to the DCT's claim. 47 As summarised by the DCT, the defence pleads the defendant took all reasonable steps to ensure the company met their obligations, and in the alternative that on each of the due days the company was solvent and the appointment of a voluntary administrator or winding up of the company was not reasonable, and further there were no reasonable steps that could have been taken to ensure the company complied with its taxation obligations. 48 There was some amplification of these assertions by the defendant in the affidavits and submissions filed in opposition to the summary judgment application. Statutory defences 49 Section 269-35 of sch 1 to the TAA provides for statutory defences to penalties imposed by div 269. 32 Mitchell affidavit, par 10. 33 Mitchell affidavit, pars 13 and 16. 34 Mitchell affidavit, Annexure CM-1, page 12. 35 Mitchell affidavit, pars 14 and 17. -- 11 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 12 50 The statutory defences provide for those defences relied upon by the defendant in the defence as just set out.36 The onus is on a director to prove the defences in s 269-35(2).37 51 Relevantly s 269-35(2) and s 269-35(3) refers to the all reasonable steps defence in the following terms: (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; … (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 (b) all other relevant circumstances. 52 The written submissions of the DCT set out the following principles it asserts are established with respect to these defences and their precursor provisions. However, I think the principles are more accurately expressed in the reasons of the registrar as follows:38 (a) What is reasonable for the purposes of s 269-35(2) is an objective test, and specifically the director must prove that he or she took all steps which were reasonable having regard to what the director knew or ought to have known.26 36 See in particular s 269-35(2) of sch 1 to the TAA. 37 Section 269-35(4) of sch 1 to the TAA. 38 Registrar's reasons [54]. -- 12 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 13 (b) Compliance with s 269-35(2) requires the director to have taken reasonable steps to ensure that one of the three alternative events (payment, appointment of an administrator, or winding up) happened. The director is only relieved from taking reasonable steps to bring about the relevant event where the director demonstrates there were no reasonable steps that available to the director. Otherwise, the director must take all reasonable steps to ensure the relevant event happened.27 (c) The director's obligation to take reasonable steps commences on the 'initial day' in s 269-10, and it is necessary for the director to show that reasonable steps were taken for the entire period during which the director was under the relevant obligation.28 (d) A director is under a continuing obligation to undertake such enquiries as are necessary to ensure that the company's tax obligations are discharged and cannot take advantage of any ignorance resulting from a failure to enquire.29 (FN26: Roche v Deputy Commissioner of Taxation [2015] WASCA 196 [29]) (FN27: Roche v Deputy Commissioner of Taxation [2015] WASCA 196 [35], [40]) (FN28: Canty v Deputy Commissioner of Taxation [2005] NSWCA 84 [45]; (2005) 63 NSWLR 152; Deputy Commissioner of Taxation v Coco [2003] QSC 119 [44], [49]) (FN29: Roche v Deputy Commissioner of Taxation [2015] WASCA 196 [43]). 53 If a director fails to establish any of the three steps contained in s 269-35(2) of sch 1 to the TAA, or that contained in s 269-35(3), then the liability to pay the penalty remains. 54 As set out in the written submissions of the DCT, the facts as to why all avenues of relief under s 269-35(2) were not available to the defendant are outlined in the Mitchell affidavit at par 14. In summary that is the company did not notify the Commissioner of the actual PAYGW amounts for the lockdown periods by the last three days after the due days stated in the Mitchell affidavit at par 10. The defendant was unable to achieve remission of the director penalties other than by causing the company to comply with its obligations to pay the lockdown amounts. -- 13 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 14 55 As set out by the DCT in its written submissions at par 49, in par 7.3 of the defence, it is asserted that on each of the due days and up to at least August 2012, the company was solvent or that the defendant otherwise had reason to believe the company was solvent. There is no evidence adduced about that in opposition to the summary judgment application. In addition, however this does not establish that the defendant took all reasonable steps in relation to any of the three options open to directors under s 269-35(2), to avoid liability. Nor can the defendant's evidence possibly establish that, in accordance with s 269-35(2)(b) there were, no reasonable steps he could have taken to ensure that any of the things set out in s 269-35(2)(a) happened. 56 Although the defendant could contend that he could not cause the company to comply with its obligations within 21 days of the DPN being issued to the company entering voluntary administration, on 12 September 2012, that cannot establish that he could not have caused the company to comply with its taxation obligations between the breach of the obligation on the due date, and the expiry of the DPN.39 This includes ensuring the company lodged on time and paid its taxation obligations as they fell due. Defendant's evidence in support of the defences in s 269-35(2) of sch 1 of the Taxation Administration Act 1953 (Cth) 57 The Wolski affidavit set out the evidence relied upon by the defendant to support an assertion that one of the defences contained in s 269-35(2) of sch 1 to the TAA applied. The evidence is set out in the plaintiff's written submissions and also the reasons of the registrar. 58 In summary: (a) from 2010 to 2012 the defendant worked in the 'field' in the mining industry. During that time he was not involved in the day-to-day running of the office of the company;40 (b) during that period the defendant relied upon advice from the company's external bookkeeper to ensure the company complied with its taxation obligations from time to time;41 39 See Canty v Deputy Commission of Taxation [2005] NSWCA 84 [42] - [46]. 40 Wolski affidavit, par 6. 41 Wolski affidavit, par 7. -- 14 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 15 (c) from in or about February 2011, the defendant attempted to obtain 'specific information' from the external bookkeeper but this was delayed due to their ill health;42 (d) in about September 2011, the defendant 'demanded the accounts' and was then 'overwhelmed with the total amount outstanding';43 (e) due to the discovery of the 'deficiencies' in September 2011, the defendant appointed a firm of accountants to investigate the company's affairs and liaise with the external bookkeeper.44 The external accountant was Crowe Horwath. (f) from September 2011 to September 2012 the defendant's process of investigation continued, including meetings between Crowe Horwath and the defendant and other representatives of the company. This was to ascertain the company's taxation obligations;45 (g) by about September 2012, the defendant appreciated the extent of the problems with the work of the external bookkeeper and based upon advice from Crowe Horwath, the company entered voluntary administration on 12 September 2012;46 (h) the Wolski affidavit then asserts that at a point in time, presumably shortly before the company was placed in administration: (i) the defendant understood all of the company's reporting obligations as to its taxation obligations had been or were being complied with; (ii) the defendant understood that all liabilities owed by the company at that point in time, including the taxation liabilities the subject of the present claim, had been paid; and (iii) the defendant believed on reasonable grounds that the company was solvent and there was no reason to appoint an administrator or otherwise take steps to wind up the company;47 42 Wolski affidavit, par 8. 43 Wolski affidavit, par 8. Again, I infer the demand was made to the external bookkeeper. 44 Wolski affidavit, pars 8 and 9. 45 Wolski affidavit, par 11. 46 Wolski affidavit, pars 10 - 13. 47 Wolski affidavit, pars 14 - 16. -- 15 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 16 (i) the defendant then asserts it was not within his powers, following the company entering administration, to ensure it had complied with its taxations obligations.48 59 The evidence contained in the Wolski affidavit does not raise an arguable defence under s 269-35(2) of sch 1 to the TAA. In addressing this point, the plaintiff relies upon analogous facts in Deputy Commissioner of Taxation v Roche.49 In that case Master Sanderson found there was no arguable defence. 60 There is no evidence that the defendant received information or assurances to establish the company had satisfied its obligations in relation to PAYGW. This was not asserted to be the position of the defendant based upon information provided by the external bookkeeper or Crowe Horwath. There is no evidence from the defendant that he was misled by the external bookkeeper or Crowe Horwath as to the company's financial position or whether or to what extent the company had discharged its obligations in relation to PAYGW. 61 There is no evidence from the defendant that he did not have access to the company's books or records to check himself that all taxation obligations were met. It is insufficient to establish 'reasonable steps' that a director was ignorant of the affairs of a company and its failure to meet its taxation obligations. 62 As set out above the Wolski affidavit asserted the company's external bookkeeper delayed in providing the defendant with information from about February to September 2011. However, it remained the obligation of the defendant to take steps, other than waiting for the external bookkeeper, to ascertain the financial position of the company and taxation obligations. The defendant did not do anything other than wait for the information from the external bookkeeper until Crowe Horwath were appointed. This was not until at least September 2011. 63 Up until the time of the decision to appoint administrators, apparently about a month before this occurred in September 2012, there is no evidence that the defendant was taking reasonable steps in accordance with s 269-35(2). Instead, there was just an attempt to gather information from the whole of the period between 48 Wolski affidavit, pars 17 - 21. 49 Deputy Commissioner of Taxation v Roche [2014] WASC 222 (Roche), upheld on appeal in Roche v Deputy Commissioner of Taxation [2015] WASCA 196. -- 16 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 17 February 2011 to August 2012. The defendant needed to do more than merely try to gather information to possibly invoke the statutory defence under s 269-35(2). From the evidence referred to the defendant knew there were taxation problems significantly before August 2012. The defendant asserted he was overwhelmed with the total amount outstanding but did not do anything more about that other than try and gather information. 64 Also, similarly to Roche, there was no evidence from the defendant that would support any contention that the company was solvent until August 2012. 65 The registrar also considered whether there was an arguable defence based upon s 269-35(1). This provides a director with another defence to a penalty where 'good reason' is shown as to why the director was unable to participate in the management of the company. The evidence of the defendant referred to earlier, does not provide any such 'good reason'. As submitted by the plaintiff whether there is a good reason must be determined objectively. That question is to be determined against the background of the responsibilities of a director and the high standard of skill and care required by them. As stated in the reasons of the registrar, although there may have been times that the defendant was focused on things other than the management of the company's affairs, this does not provide a good reason showing why the defendant was unable to participate in the management of the company. 66 The defendant has also contended that after the company entered voluntary administration on 12 September 2012, there were no reasonable steps he could have taken to ensure the company complied with its PAYGW obligations. This was because he did not then have management or control of the company.50 However as submitted by the plaintiff, the defendant could whilst the company was in administration, have discharged its PAYGW obligation by paying the debt personally. Moreover, because the amounts owing was lockdown amounts, the only avenue available to the defendant to have the penalties remitted was to cause the company to meet its PAYGW obligations, by paying the debt personally, which he did not. 50 Wolski affidavit, pars 17 - 18. -- 17 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 18 Estoppel 67 The defendant has argued that the plaintiff is estopped from pursuing its claim. 68 This contention was comprehensively dealt with by the registrar in his reasons by reference to equitable promissory estoppel, estoppel by acquiescence, estoppel by representation, estoppel by convention and estoppel by deed. 69 Although the present appeal is by way of a new hearing, in my opinion, the relevant evidence of the defendant, the applicable legal principles and the conclusions were accurately expressed and found by the registrar. In my opinion there is no arguable defence based upon estoppel. 70 In particular at no time did the plaintiff represent or assert that it would not be seeking payment of the company's taxation liability. There is no evidence that the plaintiff knew that the defendant was exposed to a detriment on the basis of a false assumption, such that it was unconscionable for the plaintiff to adopt a course of inaction which encouraged the defendant not to pay any taxation obligation owed by himself or the company.51 71 At all relevant times the plaintiff appropriately pursued the company and the defendant to satisfy its taxation obligations. 72 In support of an estoppel argument, the defendant annexed to the Wolski affidavit a settlement deed dated 24 December 2015. The defendant asserts that because of the deed, the plaintiff is barred from issuing the present proceedings.52 73 It is apparent however that the plaintiff was not a party to the settlement deed. Accordingly, the plaintiff is not bound by its terms. Nor does the settlement deed contain any representations made by the plaintiff. The settlement deed does not address the taxation liabilities of the company. Accordingly, the contention of the defendant that he would not have entered the deed had he known that he could be pursued by the plaintiff in the present proceedings, does not estop the plaintiff from doing so.53 51 Compare Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 407; Cappelleri v Cappelleri [2024] VSCA 173 [148]. 52 See Second Wolski affidavit, pages 15 - 16. 53 Wolski affidavit, par 28. -- 18 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 19 No authority argument 74 On a number of bases the defendant has submitted that he has an arguable defence to the claim because the plaintiff does not have standing to pursue the claim, the court does not have jurisdiction to find the defendant can be liable to the plaintiff or the laws providing for the defendant's liability are invalid. I will now deal with these arguments. Legal status of the Australian Taxation Office 75 It is contended by the defendant that the Australian Taxation Office (ATO) is not a lawful entity and does not have legal standing to take action against a person.54 This submission cannot succeed because it is a Deputy Commissioner of Taxation and not the ATO who is the plaintiff in the proceedings. 76 The defendant also submits that the DCT has no lawful authority in these proceedings. However, the defendant has expressly admitted in his defence that the plaintiff is entitled to sue to recover a tax-related liability by virtue of s 255-5(2) of sch 1 to the TAA. Arguments that the DCT has no authority to bring proceedings to enforce Commonwealth taxation laws have been dismissed in other cases, which I follow. This argument has no prospect of success.55 Australian taxation laws arguably invalid 77 Attached to the Wolski affidavit is an article entitled 'Is the ATO lawful'. The article contends that Australian laws including the taxation legislation upon which the plaintiff relies are invalid. In the Second Wolski affidavit, it is specifically contended that the legislation creating the DPN was invalid.56 78 This argument was comprehensively considered and decided by the registrar in his reasons.57 The registrar's reasons set out the basis of the contention as apprehended from the article, a decision relied upon in the article and reasons why there is no arguable defence based upon the contention that Australian laws are invalid. 79 In my opinion, the reasons of the registrar accurately describe and dispose of this argument. 54 Second Wolski affidavit, pars 6 - 21. 55 Webb v Deputy Commissioner of Taxation [2017] FCA 1520 [16] - [17]; Re Palmer [2023] VSCA 322. 56 Second Wolski affidavit, par 27. 57 Registrar's reasons [116] - [121]. -- 19 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 20 No power over the living 80 In the Second Wolski affidavit it is contended that the ATO has no power over the living and so the plaintiff's action cannot succeed.58 81 This relies upon a contention that there is some distinction between the defendant as a living being or the real Mr Wolski and a fictional legal entity sharing the same name. It is argued that the DPN was issued to the fictional Mr Wolski and not the real Mr Wolski. And further that Mr Wolski as a living being is immune to being sued by the plaintiff. This argument has been rejected by courts in Australia including the Supreme Court of Western Australia.59 I must follow that decision. I also agree with it. 82 The contention does not give rise to an arguable defence to the plaintiff's claim. 83 To the extent that the submission of the defendant argues that the plaintiff does not have authority to bring the claim and the court does not have jurisdiction to determine the claim, both are untenable. I have already dealt with the issue of the authority of the plaintiff to bring the claim. The court clearly has jurisdiction to hear and decide the plaintiff's application. The court's jurisdiction is provided for by s 50(1)(a) of the District Court of Western Australia Act 1969 (WA). The court has jurisdiction in respect of personal actions up to the jurisdictional limit of $750,000. Section 255-5 of sch 1 to the TAA establishes that the amount of a tax-related liability due to the Commonwealth is a debt for which the DCT may sue in a court of competent jurisdiction. Accordingly the court has jurisdiction. 84 To the extent that the defendant argues the Australian Constitution or laws made thereunder are invalid, this is patently untenable. Additional arguments contained in the Second Wolski affidavit or made by the defendant at the hearing 85 In the Second Wolski affidavit, pars 4 and 5 the summary judgment application is opposed on four bases being: (a) The Australian Taxation Office is a corporation created in October 1973 as a result of Australia becoming a member of UNIDROIT in 1973. 58 Second Wolski affidavit, par 28. 59 Kelly v Fiander [2024] WASC 275 [26] - [31]. -- 20 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 21 (b) The Deputy Commissioner of Taxation has no lawful authority. (c) The legislation that created the Director Penalty was not enacted correctly according to Chapter 12, section 8 of the 1900UK Act. (d) A corporation has no power over the living. 86 The issues of the lawful authority of the DCT whether the plaintiff may pursue the claim over the defendant as a living being has already been dealt with. 87 The reference to the UNIDROIT treaty in the Second Wolski affidavit is to the Statute of the International Institute for the Unification of Private Law (UNIDROIT) as amended. This was entered into force for Australia on 20 March 1973. However, the contents of UNIDROIT do not have legislative force in Australia unless they are enacted under legislation. 88 Contrary to the submissions of the defendant in the Second Wolski affidavit: (a) there has not been, by the UNIDROIT, any legislation or executive act purporting to alter the Australian Constitution; (b) the UNIDROIT treaty did not introduce the continental concept of inquisitive law into aspects of Australian life; (c) the UNIDROIT treaty did not divest sovereign power from the Parliament of Australia; (d) the UNIDROIT treaty did not restore a star chamber to Australian law; and (e) the ATO was not created as a result of Australia becoming a member of the UNIDROIT in 1973. 89 The defendant also argued that, in effect, the Commonwealth did not have the power to enact the TAA. This is incorrect. The legislative powers of the Commonwealth are set out in s 51 of the Australian Constitution. Section 51(ii) specifically authorises legislation to be made about taxation. The TAA is such a law. 90 As set out earlier the defendant alleges the legislation creating the director penalty was not enacted correctly according to ch 12, s 8 of the '1900 UK Act'. -- 21 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 22 91 The '1900 UK Act' is a reference to the Commonwealth of Australia Constitution Act 1900 (UK). Chapter 12 provided that it was an act to constitute the Commonwealth of Australia. Section 9 provided that the Constitution of the Commonwealth (of Australia) shall be as follows. Then followed the Constitution of the Commonwealth in the form as it was then enacted. 92 At that time and as at the present time the Constitution included s 51(ii), referred to above. 93 As stated, the TAA has been enacted by the Commonwealth pursuant to that legislative power. The TAA has been considered in many decisions of the courts of Australia. In none of them has it been decided that the TAA has not been legally enacted as a law of the Commonwealth. 94 This argument of the defendant does not contain any arguable defence to the plaintiff's claim. The creditor's meeting minutes 95 During the hearing of the appeal the defendant provided the court with the minutes of the annual general meeting of creditors of Mint Investments Pty Ltd (in liquidation) dated 25 August 2015. It was suggested that the contents of these minutes provided a reason why the plaintiff should not be able to proceed or be successful in its claim against the defendant. This is incorrect. To the extent that the minutes refer to the resolution of claims against the defendant, it refers to claims by the company as opposed to any claims by the DCT. The contents of the minutes do not provide for any representation made by the plaintiff against the defendant which could arguably form the basis of any estoppel. The contents of the minutes do not provide for any arguable defence against the summary judgment application. The defendant's reservation 96 In his submissions at the hearing,60 the defendant said he reserved … my rights without prejudice not to be compelled to perform under any contract or commercial agreement that I did not enter into knowingly, willingly, voluntarily, or intentionally, and I furthermore do not accept any liability of any compelled benefit of any unrevealed contract or commercial agreement ... 60 ts 48. -- 22 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 23 97 This is an irrelevant submission. The claim against the defendant is not made by the plaintiff under any contract or commercial agreement. It is made pursuant to the provisions of the TAA. Request for documents 98 In the Second Wolski Affidavit and the submissions of the appellant at the hearing there is reference to communications between the defendant and the ATO or the plaintiff requesting documents establishing the authority of the plaintiff or the ATO of its existence and to commence the present proceedings. This does not lead to any arguable defence. The DCT has, as referred to earlier, authority to commence the proceedings. This is dependent upon the terms of the TAA. It does not need to be established by any document provided by the plaintiff or the ATO. Alleged delay in arising director penalty notice 99 In his oral submissions the defendant also referred to Mint Investments Pty Ltd being deregistered on 30 June 2018, which then triggered the DPN notice. It was asserted that prior to this, he did not know what a DPN was and in six years the ATO had stayed silent.61 However in the written submissions of the plaintiff in reply it was pointed out that in accordance with Annexure CM-1 to the Mitchell affidavit there is an ASIC search of Mint Investments Pty Ltd which says that the date of deregistration of the company was 11 January 2018. It was also pointed out by reference to Annexures CM-3 and CM-4 to the Mitchell affidavit that the first DPN was issued against the defendant on 4 June 2018 and the second on 27 September 2018. Accordingly there was no significant delay between deregistration and the issuing of the DPN. Further, any delay does not contain any representation or inaction by the plaintiff such as would cause the defendant to have an arguable defence based on estoppel or otherwise. Conclusion 100 The evidence produced by the defendant and the defendant's submissions do not provide any arguable defence to the plaintiff's action or any other reason supporting a conclusion that summary judgment should not be granted. The claim of the plaintiff has been proven by the affidavits filed including the annexed certificates and their legal evidentiary force. 61 ts 61. -- 23 of 24 -- [2026] WADC 44 RITTER DCJ [2026] WADC 44 (PC) Page 24 101 Accordingly, the appeal must be dismissed. The plaintiff is entitled to summary judgment against the defendant in the sum of $502,443.91. 102 These reasons will be provided confidentially to the parties prior to a hearing to make orders allow the plaintiff's application for summary judgment, interest and costs. 103 The plaintiff is, prior to that hearing, to provide a minute of proposed orders setting out all of the orders sought including any orders additional to those I have identified. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. EJ Associate to the Judge 11 JUNE 2026 -- 24 of 24 --