Sovereign immunity protects state actors from jurisdiction if their acts are governmental and not commercial.

[1] These are my grounds of judgment in respect of an application by the defendants (encl 16) to strike out and dismiss the Originating Summons dated 22 July 2016 (encl 2)("the OS"), pursuant to O 18 r 19(1)(a) or (b) or (c) or (d), Rules of 2012 ("ROC"). The striking out application is predicated on, inter alia, a plea of "sovereign immunity". The issue is whether by reason of the defendants' plea of sovereign immunity, this Court should decline jurisdiction to hear the claim by the plaintiff and strike out/dismiss the OS accordingly.

[2] Briefly stated, the plaintiff is a Malaysian citizen and a tax-payer in Malaysia and in other jurisdictions. He is a multi-jurisdictional businessman with a considerable reputation. He has assets and conducts business in various jurisdictions. His ex-wife and children are in Australia, predominantly for the children's educational purposes. He is presently in a rather invidious position as he finds himself inextricably entangled with the tax authorities of Australia. His principal grievance is that he has been wrongly and unfairly declared by the Australian tax authorities as a tax resident for Australian tax purposes.

[3] Under the Australian tax legislation, "world-wide tax" is imposed on persons who are declared as Australian tax residents. As a result, upon being determined to be an Australian tax resident, the plaintiff was assessed to tax on income derived from his businesses outside as well as within Australia. Thus, the plaintiff's Australian tax liability was initially determined by the Australian Tax Office ("ATO") to be Australian $89,098,935.48 and after objection by the plaintiff, was subsequently reduced to Australian $49,774,128.20. The plaintiff judicially challenged the imposition of world-wide tax by the Australian tax authorities through the process of objections and appeals before the Australian tribunals and the courts. The chronology of the plaintiff's journey through the tax tribunals and courts in Australia and ATO's enforcement proceedings in Papua New Guinea are as stated in the Chronology of Events in para 20 of this judgment.

[4] The Australian tax authorities have since initiated enforcement proceedings in Papua New Guinea, where the plaintiff runs his timber business. The plaintiff now seeks reliefs from the Courts in Malaysia. He filed the OS on 22 July 2016 wherein he sought various declarations with regard to his Australian tax residency and to declare as null and void, the decision of the Australian tax authority which decided that the plaintiff is a tax resident in Australia.

[5] In his affidavit in support of the OS, the plaintiff made an impassioned plea for intervention by this Court so as to ensure that Malaysian citizens and tax payers like him are not subjected to the same fate. The plaintiff's affidavit reads as:-

"104. It is public knowledge that the Australian government, their business community and universities alike have consistently invited Malaysians to either invest or educate our children in Australia. Many Malaysians like me have accepted this invitation to do so but then the Australian Authorities have taken advantage of the situation by unilaterally deciding subsequently that these Malaysians now can be deemed Tax Resident's of Australia by virtue of assets owned in Australia or visits to meet their children in Australia. It is not just superfluous but an under handed tactic by the Defendants to earn taxes from foreign nationals. If left unheeded many Malaysians and citizens of other nations will be trapped to pay unwarranted taxes to