Deputy Commissioner of Taxation v Levick

Introduction 1 On 5 March 1999 the Deputy Commissioner of Taxation ("the Deputy Commissioner") filed with the Court a creditor's petition against Paul Quinn in the New South Wales District Registry of the Court. The petition was based upon a failure by Mr Quinn on or before 25 November 1998 to comply with the requirements of a bankruptcy notice which had been served on Mr Quinn on 4 November 1998. The bankruptcy notice in turn was founded on a final judgment obtained by the Deputy Commissioner in the District Court of New South Wales in the sum $46,173.30. 2 On 4 August 1999 Mr Levick, the respondent to the present application and acting as solicitor for Mr Quinn, filed with the Court a notice of Mr Quinn's intention to oppose the petition. That notice contained seven grounds. Three alleged that Mr Quinn had suffered physical and psychiatric illness as a result of an assault and had not been able to understand the significance of the Court proceedings. It may be noted that no attempt was made to file any evidence covering the alleged assault, or the physical or psychiatric illness to which these three grounds referred. It may thus be inferred that a decision was made to abandon these grounds. The remaining four grounds were as follows: "1. The Applicant having found by reason of responses to applications under the Freedom of Information Act 1982 that the legal steps necessary to establish the Australian Taxation Office as an arm of the Commonwealth Government were not completed and gazetted. Therefore the Applicant challenges the delegation of power by officers of the Australian Taxation Office who are prevented by law from delegating such powers. 2. The Applicant says that the delegation of powers by officers of the Australian Taxation Office does not exist in law. 3. Further the Applicant seeks to challenge the appointment of the Commissioner of Taxation on constitutional grounds arising from the findings of this Honourable Court in Sue v Hill HCA 30 of 1999. 4. The demands upon which the judgement was obtained against me in the District Court of New South Wales at Newcastle in matter Plaint Number: 5026 of 1998 had no basis in law." 3 Subsequently on 27 August 1999 Mr Levick filed with the Court a document headed "Notice of Constitutional Matter". The document was also forwarded to the Attorney-General of the Commonwealth and the Attorneys-General for the States and Territories. That document is a little peculiar in that in part it suggests that the present proceedings were pending in the Supreme Court of New South Wales. The document claimed that questions would arise involving the Constitution and its interpretation. It alleges that questions of conflict arose between the Constitution on the one hand and the following Acts or instruments, namely: "a. The Treaty of Peace Act 1919 b. The Charter of the United Nations Act 1945 c. The Taxation Administration Act 1953 d. The Income Tax Assessment Act 1936 (as amended) e. The Public Service Act 1922 f. The Acts Administrations Act g. The Human Rights and Equal Opportunity Act h. The Australia Act 1985 (Cth) i. The Australia Act 1986 (UK) j. The Corporations Law (Cth) k. The Corporations Law (NSW)" 4 The notice averted to some at least of the questions raised in the notice of opposition. It referred to a decision of Hayne J in Joosse v the Australian Securities Investment Commission (1998) 73 ALJR 232, a decision of the High Court in Sue v Hill (1999) 163 ALR 648 and perhaps suggested some conflict between those cases. The document then continued: "A ruling is therefore requested from this Honourable Court that the passing of the Treaty of Peace Act 1919 and the Charter of the United Nations Act 1945 complied with the ruling of Hayne J and if Covering clause 5 is held to be valid and unaltered then the aforementioned Acts make the Treaty of Versailles, including the League of Nations Covenant, and the Charter of the United Nations, including the declaration of the preamble agreeing to uphold international law, binding on the courts of the states and the Commonwealth. 3. In addition the Queen of the United Kingdom referred to in Covering Clause 2 is redefined as a foreign monarch who by definition under domestic United Kingdom law (namely the Act of Settlement 1701), is an inseparable part of the legislature of the United Kingdom. Further by self declaration the Monarch, in the Accession Declaration prescribed by the Accession Declaration Act 1910 UK, delivered at the first State sitting of the Westminster Parliament following the Coronation, states as follows: "I, (here insert the name of the Sovereign) do solemnly and sincerely in the presence of God profess and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my power according to law." and thereby acknowledges subjugation to the above mentioned Act of Settlement as a condition of holding the Throne in the Protestant line of succession and is therefore an integral part of the legislature with the Commons and the Lords which by the judgement of this Honourable Court can play no part in the governmental structures of the Commonwealth and the States. It is therefore respectfully submitted that Her Majesty as Queen cannot be separated from the legislature of the United Kingdom in any respect since separation would remove the Right of Succession to hold the Throne and therefore Royal Assent granted under the terms of S58, 59 and 60 of the Constitution is in fact the Assent of the legislature of a foreign power as defined by this Honourable Court rendering any Act so Assented to invalid. 4. In the alternative, if the Sections of a British domestic law being Clauses 1 to 8 of the Commonwealth of Australia Constitution Act 1900 (UK) are held to be valid and unchanged then by reason of Order 1b of this Honourable Court in Sue v Hill then such law cannot apply unchanged to Australian citizens who are excluded from any entitlements under British domestic law by reason of the Immigration and Asylum Act 1971 (UK) as amended in 1972 and 1973. 5. Further since the Governors of every State, notwithstanding the Australia Acts 1986, are appointed under Letters Patent issued in 1986 by the Queen of the United Kingdom and signed by the then Permanent Secretary of the Lord Chancellor's Office then the resultant interference in the governmental structures of the States is by ruling of this Honourable Court unlawful and all and Appointments made or Royal Assent granted to bills of the state parliaments under such Letters Patent are null and void ab initio including the Corporations Law (NSW). 6. It is respectfully submitted to this Honourable Court that the defining event of independence said by Callinan J in Sue v Hill at 291 to be unascertained and unascertainable is in fact clearly defined in the formal declaration of the Imperial Conference 1921, reported in a Prime Ministerial statement recorded in the official record of the House of Representatives on 30th September 1921, when the Conference under the Presidency of the Prime Minister of the United Kingdom, Mr Lloyd George, formally and officially set its seal on his declaration opening the said conference that the Dominions had now 'joined the comity of nation … they have achieved full national status'. 7. In evidence of this change Canada then negotiated the Halibut Fisheries Treaty 1922 with the United State of America without involvement at any level of the Imperial Government. 8. It is therefore respectfully submitted that there is overwhelming evidence recorded in the Hansard of the Parliament during the Treaty of Peace Act debate 1919, in the cables between the Australian and Imperial Government in 1919 and in the debates relating to the other Peace Treaties and the Accession by Australian to membership in the League of Nations that the United Kingdom Government was translated into a foreign power not later than 1921 as defined under the seal of the Imperial Conference. 9. It is therefore also respectfully submitted that the Public Service Act 1922 could not receive Royal Assent that in any manner involved the Parliament of the United Kingdom in the governmental structures of the Commonwealth and the states as defined by the Full Court and that any appointments made under that Act are therefore null and void, in particular the appointment of the Commissioner of Taxation. 10. It is also respectfully submitted that the Taxation Administration Act 1953 suffers from the same basic defect and therefore any purported delegation under Section 8 of that Act is ultra vires. 11. In the alternative if the Taxation Administration Act 1953 is found by this Honourable Court to be valid then a ruling is requested that any purported delegation of powers by the Deputy Commissioner of Taxation pursuant to S8 of the above Act is defective at law since S8(1) specifically declares that the Deputy Commissioner possesses all the powers of the Commissioner except the power of delegation." 5 Prior to the hearing of the petition, Mr Levick filed with the Court written submissions. The written submissions proclaimed that they had been prepared by counsel, Mr Fitzgibbon. The submissions were in the following terms: "1. The Respondent having found by reason of responses to applications under the Freedom of Information Act 1982 that the legal steps necessary to establish the Australian Taxation Office as an arm of the Commonwealth Government were not completed nor gazetted and neither was the Act promulgated according to law. The Respondent will rely upon the affidavits filed in court of Peter Batten and David Lamont. In addition 15 volumes of the Official Government Gazette for the years 1972, 1973 and 1974. 2. The Applicant says that the delegation of powers to the Commissioner of Taxation allows them to delegate his powers and functions to Deputy Commissioners and other officers by reason of Section 8 of the Taxation Administration Act 1953. The Respondent submits that the Commissioner of Taxation is not empowered under the Australian Constitution Act 1900 to delegate his powers and functions to Deputy Commissioners and other officers of the Australian Taxation Office and to so delegate his powers and functions is to breach the limited powers of delegation contained in O'Reilly and Ors v The Commissioners of the State Bank of Victoria and Ors 1983 153 CLR 1. 3. That the Respondent says that all demands made in this matter were made under the name of the Australian Taxation Office which is in the Respondent's submission a non-existent entity in law and in the alternative the powers of delegation claimed by the Commissioner of Taxation exceed the limits set out by Chief Justice Gibbs of the High Court in the matter of O'Reilly 1983 153 CLR 1. 4. That the Income Tax Assessment Act of 1936 was not validly assented to according to law in June of 1936 by the then Australian Governor General Lord Gowrie and we seek declarations from the court on the following issues: (a) Is it a fact that the Commonwealth of Australia Constitution Act 1900 (Imp) contains no aspect of sovereignty other than section 8 which defines the Commonwealth as a 'self governing colony'? (b) If the answer to question one is 'yes', are the authors Quick and Garran correct in 'The Annotated Constitution of the Australian Commonwealth 1901' at page 367 when they state 'under the Crown' to include 'The Commonwealth … is constitutionally a subordinate and not an independent sovereign, community or state'? (c) Does the Commonwealth of Australia Constitution Act 1900 (Imp) by section 3 and section 58 establish the role of the Governor General as the appointee of the Monarch of the United Kingdom of Great Britain and Ireland when Lord Gowrie was appointed by letters patent by King George V on or about 2nd of November 1934? (d) If the answer to question three is 'yes', did the power to grant royal assent by the Governor General emanate from the Letters Patent: that is, the Commission of Appointment and the instructions to the Governor by the monarch of the day, George V when he granted Letters Patent to Lord Gowrie? (e) If the answer to question four is 'yes', is the Income Tax Assessment Act 1936, said to be the basis of the judgment in this matter, a valid enactment of the Commonwealth of Australia in that Lord Gowrie, the Governor General of Australia purported to give assent to the Act on 2nd of June 1936, when the letters patent were extinguished in January 1936 when King George V died and new letters patent did not issue until 10th of January 1938 after George VI ascended to the throne of the United Kingdom? (f) Further, in the High Court of Australia decision of Sue v Hill (HCA 23/06/1999) concerning section 1 of the Australia Act 1986 (UK and Cth) at paragraph 65 it was stated that: 'It follows that, at least since 1986 with respect to the exercise of legislative power, the United Kingdom is to be classified as a foreign power.' This statement is consistent with the fact that Australia in 1936 had not adopted the Statute of Westminster and did not do so until 1942 and therefore Australia remained a federated colony of the United Kingdom. Consequently, in the absence of any convention which permitted the Governor General to assent to the Income Tax Assessment Act 1936 (Cth), upon which section of the Commonwealth of Australia Constitution Act 1900 (Imp) or upon which power did the Governor General rely to purportedly assent to the Income Tax Assessment Act in 1936? (g) Further in Sue v Hill at paragraph 74 it is stated that 'the same is true of the exercise of the power vested by section 4 of the Constitution in the monarch to appoint a person to administer the government of the Commonwealth and the power given to the monarch by section 126 to authorise the Governor General to appoint deputies within any part of the Commonwealth'. With the death of the Monarch, in January 1936 by virtue of the Bill of Rights 1689 and the Act of Settlement 1701, all writs of the Sovereign, including Letters Patent died with the Sovereign. As such, was the purported assent to the Income Tax Assessment Act 1936 (Cth) in the name of a deceased Sovereign, and in the absence of a reigning Monarch, without authority and therefore was the entry of judgment against the applicant pursuant to the provisions of that Act null and void and the subsequent orders of sequestration without lawful authority? 5. As a consequence of the findings of the High Court of Australia in Sue v Hill HCA 30 of 1999judgment given 23rd June 1999 the applicant says that the appointment of the Commissioner of Taxation is not valid on constitutional grounds arising from the decision and therefore any claimed power to act pursuant to the Public Service Act of 1922 to enable the Commissioner to collect tax is invalid in law. 6. By reason of the above submissions the Respondent says that the demands made upon him and the judgment which was obtained in the District Court of New South Wales at Newcastle in Plaint Number 5026 of 1998 have no legitimate foundation in law." 6 On 12 October 1999 Mr Levick wrote to the Australian Government Solicitor advising that he would be raising the above arguments at the hearing set down for 20 October 1999. 7 On 13 October 1999 shortly before the petition was listed for hearing the Deputy Commissioner filed a notice of motion addressed to Mr Levick seeking orders, inter alia, that Mr Levick, as solicitor for Mr Quinn be joined as a party and that he pay the Deputy Commissioner's costs on an indemnity basis in respect of the issues in the notice of intention to oppose the petition (other than the issues that related to Mr Quinn's health.) 8 When the petition was called on for hearing Mr Fitzgibbon who appeared for Mr Quinn asked that the Court rule on the indemnity costs motion before proceeding with the hearing. He indicated that Mr Levick would "withdraw" if faced with a costs order. I refused to make such a ruling. I said it was impossible to deal with the question of costs payable by the solicitor until the argument which was raised on Mr Quinn's behalf had been put and ruled upon. Thereupon Mr Fitzgibbon announced that his instructions to appear for Mr Quinn had been withdrawn. I then asked whether Mr Quinn was in court. He was not. I noted that Mr Quinn was still represented by Mr Levick and that Mr Quinn was aware the matter was to be heard. I noted also that Mr Levick did not have leave to withdraw. Mr Levick then requested that he be given leave. I indicated that was a matter for him but gave no leave. I asked him for submissions as to why a sequestration order should not be made. Mr Levick replied that he wished to withdraw and did not wish to put anything. Since a solicitor could not withdraw, at least ethically, without advising his client that he wished to withdraw, or seeking an adjournment, I assumed that he continued to represent Mr Quinn. Counsel for the Deputy Commissioner then proceeded to prove the matters relating to the petition. No submissions were made in opposition to the petition and I accordingly made a sequestration order. The following reasons relate only to the application made by the Deputy Commissioner for costs to be ordered against the solicitor.