Matchett J M v Deputy Commissioner of Taxation; Lattimore J C v Deputy Commissioner of Taxation; Lattimore V M v Deputy Commissioner of Taxation; Matchett J F v Deputy Commissioner of Taxation

Supreme Court of NSW|2000-10-23|Before: Matchett J, Lattimore J, O'Keefe J, Mr P

CITATION : Matchett J M v Deputy Commissioner of Taxation; Lattimore J C v Deputy Commissioner of Taxation; Lattimore V M v Deputy Commissioner of Taxation; Matchett J F v Deputy Commissioner of Taxation [2000] NSWSC 975 revised - 4/12/2000 FILE NUMBER(S) : SC 12139/2000; 12140/2000; 12141/2000; 12142/2000 HEARING DATE(S) : 9/10/00;10/10/00;13/10/00;16/10/00 JUDGMENT DATE : 23 October 2000

Janice Margaret Matchett v Deputy Commissioner of Taxation PARTIES : Jonathan Charles Lattimore v Deputy Commissioner of Taxation Vivienne Maree Lattimore v Deputy Commissioner of Taxation John Frederick Matchett v Deputy Commissioner of Taxation JUDGMENT OF : O'Keefe J

COUNSEL : Mr Wayne Levick - For plaintiff Mr P Rodionoff - For defendant Wayne Levick & Associates Blacktown For Plaintiffs SOLICITORS : Australian Government Solicitor Sydney For Defendants CATCHWORDS : Appeal from Local Court - Constitutional Law - Operation of Constitution - Sovereignty - Break in Sovereignty - Governor General - Letters Patent of Appointment - Validity of legislation - Treaties - Effect of treaties in municipal law - Matter arising under any treaty - Matter directly arising under any treaty - Practice and Procedure - Courts and judicial system - Relationship between State and Federal Courts - Application to remove matter to High Court - Costs - Indemnity costs - Costs against solicitor Commonwealth of Australia Constitution Act, 1900 (Imp) Income Tax Assessment Act, 1936 (Cth) Income Tax Assessment Act, 1997 (Cth) Human Rights Act, 1998 (UK) Judiciary Act, 1903 (Cth) Treaty of Peace Act, 1919 (Cth) LEGISLATION CITED : Charter of the United Nations Act, 1945 (Cth) Supreme Court Act, 1933 (ACT) Crimes (Internationally Protected Persons) Act, 1976 (Cth) Public Order (Protection of Persons and Property) Act, 1971 (Cth) Trading with the Enemy Act, 1939-52 (Cth) Statute of Westminster 1931 (Imp) Statute of Westminster Adoption Act, 1942 (Cth) Australia Acts, 1986 (Cth) Bonser v La Macchia (1968-69) 122 CLR 177 Australian Securities Commission v Marlborough Gold Mines Limited (1992-93) 177 CLR 458 Joose v Australian Securities and Investment Commission (1998) 73 ALJR 232 Chow Hung Ching v The King (1948) 77 CLR 449 Bradley v The Commonwealth (1973) 128 CLR 557 Greer v Deputy Commissioner of Taxation (High Court, unreported, 26 April 2000) Helljay Investments Pty Limited v Deputy Commissioner of Taxation (1999) 166 ALR 362 CASES CITED : McKewins Hairdressing and Beauty Supplies Pty Limited (In liq) v Deputy Commissioner of Taxation (2000) 171 ALR 335 Deputy Commissioner of Taxation v Levick (1999) 166 ALR 302 Dooney v Henry (2000) 8 HCA 44, unreported 24 August 2000 In re Judiciary and Navigation Acts (1921) 29 CLR 257 Reg v Donyadideh (1993) ACTR 1 Bluett v Fadden (1956) 56 SR (NSW) 254 R v Commonwealth Court of Conciliation and Arbitration: ex parte Barrett (1945) 70 CLR 141 Felton v Mulligan (1971) 124 CLR 367 Hooper v The Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 655 DECISION : Summonses dismissed.; Plaintiffs to pay costs on an indemnity basis.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No:12139/00 - JANICE MARGARET MATCHETT v DEPUTY COMMISSIONER OF TAXATION &ANOR No: 12140/00 - JONATHAN CHARLES LATTIMORE v DEPUTY COMMISSIONER OF TAXATION & ANOR No: 12141/00 - VIVIENNE MAREE LATTIMORE v DEPUTY COMMISSIONER OF TAXATION & ANOR No: 12142/00 - JOHN FREDERICK MATCHETT .v. DEPUTY COMMISSIONER OF TAXATION & ANOR

HIS HONOUR: INTRODUCTION 1 The plaintiffs, Janice Margaret Matchett (Mrs Matchett), Jonathan Charles Lattimore (Mr Lattimore), Vivienne Mary Lattimore (Mrs Lattimore) and John Frederick Matchett (Mr Matchett), each seek orders that decisions made against them on 20 July 2000 by Colin A Elliot a Magistrate in the Local Court at Newcastle be quashed and set aside. 2 Each of the plaintiffs was sued in the Newcastle Local Court by the Deputy Commissioner of Taxation (DCT) for monies alleged to be outstanding in respect of income tax, additional tax, interest and in three of the cases, provisional tax. The amounts claimed were: (i) Mrs Matchett - $7,145.49 (ii) Mr Lattimore - $8,345.23 (iii) Mrs Lattimore - $12,686.83 (iv) Mr Matchett - $7,181.89. 3 In each action a defence was filed. In their defences Mr and Mrs Lattimore pleaded that: (i) the DCT had no right to make a claim as it was "defective under the Treaty and Constitutional provisions relating to Treaties as contained in the Constitution of Australia"; (ii) the Local Court had no jurisdiction to hear the matter, it being a matter in the exclusive jurisdiction of the High Court, "pursuant to section 38 of the Judiciary Act 1903 and s 75(1) (sic) of the Constitution"; (iii) the questions raised by the two preceding grounds of defence were currently before the High Court in Helljay Investments Pty Limited v DCT ; (iv) "this matter should be adjourned sine die until the case of Helljay Investments...currently before the High Court is decided". There then followed a number of defences asserting the nonexistence of the Australian Taxation Office, the absence of a valid delegation to the DCT, the invalidity of any notice issued in the name of the Australian Taxation Office. All of these were in a form the same as had been pleaded in the other two actions (as to which see below). Mr and Mrs Lattimore's grounds of defence each concluded as follows: "The defendant intends to rely on the following facts to show that the transaction sued on is void (or voidable) in point of law and that the Respondent's (sic) claim is not otherwise maintainable". No facts were included in the grounds of defence to support this defence. 4 The defences filed by Mr and Mrs Matchett denied the indebtedness, traversed the various allegations made by the DCT in the statements of claim and:

(i) put in issue the validity of the Commonwealth of Australia Constitution Act 1900 (Imp) on the basis that it was the law of a foreign power as far as Australia was concerned which breached "my rights under International Treaty and are subject to review of the full High Court and the International Court of Justice"; (ii) denied the validity of the Income Tax Assessment Act 1936 on the bases that: (a) it had not received Royal Assent; (b) the Income Tax Assessment Act 1997 had been passed in which many similar areas were dealt with in similar terms thus indicating a legislative intent to repeal the Income Tax Assessment Act 1936; (iii) asserted that the provisions of the Income Tax Assessment Act 1997 made the position of the Income Tax Assessment Act 1936 too vague to be capable of enforcement or use; (iv) asserted that as the Income Tax Assessment Act 1936 was made under the Commonwealth of Australia Constitution Act 1900 (Imp), it was subject to the Human Rights Act 1998 (UK) and since it contained violations of that Act was "invalid in its entirety"; (v) denied the right of the Australian Taxation Office to claim monies on the basis that it was an unregistered business name whose existence had not been advertised in the Government Gazette; (vi) asserted that the delegation to the DCT in relation to the relevant assessments and actions was invalid; (vii) relied on a claim that the Income Tax Assessment Act 1936 was currently before the High Court of Australia in Dooney v Commissioner of Taxation (B71 of 1999) and other nominated cases and an application for leave to appeal in the matter of Levick v Deputy Commissioner of Taxation (N7261/99) was also currently before the High Court. 5 The DCT applied to the Local Court to strike out the grounds of defence lodged by each of the plaintiffs and to enter judgment against them on each of the Statements of Liquidated Claim. The Magistrate struck out the defences and judgment was entered in each case. It is from those decisions that the plaintiffs now appeal. COURSE OF HEARING 6 When the matter was called on for hearing, Mr Levick, solicitor for the plaintiffs, sought an adjournment. He relied on two grounds: first, so that the matter could be heard on a date which would be convenient to particular counsel, Mr D Fitzgibbon; second, so as to enable him to put before the court that a submission had been made to the United Nations concerning the status of Australia and its laws, including the Income Tax Assessment Act 1936. In this regard he informed the court that the submission had been made by the "sovereign people of Australia". He further informed the court that investigators from the United Nations had come to or were in Australia pursuant to the submission and that he anticipated that the matters raised in the submission and incorporated into various of the grounds of defence would go before the International Court of Justice. 7 Although I declined to grant Mr Levick an adjournment, the demands of the duty list in which the matters appeared were such that they were not able to be dealt with on the day on which they were first listed. They therefore carried over until the following day when Mr Levick produced two substantial volumes which incorporated 35 annexures. The volumes were entitled "Australia: The Concealed Colony!" and were in the form of a report on "the continuing use of British Law within the Sovereign Territory of the Independent Nation of Australia". It had been prepared by the Institute of Constitutional Education and Research of Seaford Victoria, which claimed copyright. 8 In the foreword of the submission it was asserted that: "This submission establishes that those exercising the power to govern over the sovereign people of Australia do so without the authority of those same people. Instead they govern through the application of a current Act of domestic law of the Parliament of the United Kingdom, a foreign power to Australia". 9 It then sought the right for the presenters to "individually and collectively present our cause before the General Assembly of the United Nations". According to the submission, the purpose of such presentation was: "(1) to establish, within the territory of Australia, an International Tribunal to investigate, with the view to the confirmation of, the allegations contained in this submission and as a result have all Australian governments at all levels declared, under international law, invalid. (2) to establish within the territory of Australia an International Criminal Tribunal, to prosecute individuals named in the annexures of this report and any other individuals who have been seen to have been aiding and abetting the continuing breach of international law through the application of United Kingdom law within the territory of the sovereign nation State, the Commonwealth of Australia

... (5) to declare Australia's representative at the United Nations persona non grata until such time as a representative is nominated by a Government which validly represents the sovereign and federated people of Australia, that is, the Commonwealth of Australia." 10 In their summonses, the plaintiffs limited the basis on which they sought to reverse the decision of the Magistrate to a claim that the striking out of the defence and entry of judgment was in contravention of the provisions of s 38 of the Judiciary Act 1903 and s 75 of the Commonwealth of Australia Constitution Act 1900 "when the Magistrate knew or ought to have known that matters arising under Treaty had been pleaded". Counsel for the DCT drew attention to and relied on this limited ground of attack on the decision of the Magistrate. THE PLAINTIFFS' ARGUMENTS 11 When the matters came on for hearing the counsel for whose presence an adjournment had been sought was not available. As a consequence Mr Levick argued the matters himself. He did so with persistence and a grasp of the historical material both factual and legislative to which reference was made. He relied on a number of arguments which related to grounds additional to those included in the summonses, although no amendment was sought. These drew on the submission to the United Nations referred to above. A number of such arguments were not articulated clearly or were mutually inconsistent or involved wholesale rejection of relevant decided cases. Whilst the arguments were often difficult to understand or crystallise into propositions I have nonetheless tried to do so as best I can. 12 The arguments related to the additional grounds of defence claimed that the Income Tax Assessment Act 1936 was invalid. This was said to be for a number of reasons:

(i) the Australian Constitution which was the purported source of power, was not valid or operative in 1936 and hence all legislation purportedly passed under it was of no effect; (ii) even assuming that the Australian Constitution was valid and operative in 1936, the Income Tax Assessment Act 1936 was still invalid since it had not received Royal Assent; (iii) there was no lawful demand made on the plaintiffs by the DCT because: (a) there was no DCT as a result of the Income Tax Assessment Act 1936 being invalid; (b) there was no lawful delegation of relevant function to the DCT; (iv) there had been "a break in sovereignty". This occurred in one of the years 1919, 1928/29, 1945 or 1986. On one of the above dates the Commonwealth of Australia Constitution Act 1900 (Imp) became inoperative within the Commonwealth of Australia and as a consequence legislation thereafter was invalid or became inoperative. 13 The primary date selected for the "break in sovereignty" was 1919. This is said to have occurred when Australia signed the Treaty of Versailles on 1 October 1919. The "break in sovereignty" was said to arise in the following way: 14 Prior to Australia becoming an independent nation, it was a colony of the United Kingdom as a result of the Commonwealth of Australia Constitution Act 1900 (Imp). The Constitution, so the argument ran, could only remain as the law in Australia whilst ever Australia remained a colony of the United Kingdom. The Treaty of Versailles was signed by Australia as an independent sovereign nation and Australia was recognised as such in the Treaty. Under that Treaty, Australia, as one of the High Contracting Parties, agreed to the Covenant of the League of Nations. The provisions of the Covenant on which reliance was placed by the plaintiffs were Articles 10 and 20. They provide: "Article 10 The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means upon which this obligation shall be fulfilled. Article 20 The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagement inconsistent with the terms thereof. In case any member of the League shall, before becoming a Member of the League have undertaken any obligations inconsistent with this Covenant it shall be the duty of such Member to take immediate steps to procure its release from such obligations."

INVALIDITY OF LEGISLATION 15 These Articles were said to be inconsistent with the maintenance of the Australian Constitution which thereby "became inoperative within the Commonwealth of Australia". Why this was so was never articulated except to the extent that the provisions referred to above were a recognition of "sovereignty" and "independence" on the part of Australia. How the existence of the Australian Constitution infringed respect for territorial integrity or existing political independence (Article 10) was never explained, nor was it explained how the Commonwealth of Australia Constitution Act 1900 amounted to an obligation or understanding inter se which was inconsistent with the terms of the Covenant (Article 20). 16 Speeches about the Treaty were made in the Australian Parliament. The Prime Minister of the day, the Rt Hon William Morris Hughes, stated that Australia was a sovereign and independent nation and the Treaty of Peace Act 1919 was enacted (No 20 of 1919 Cth). However relevantly that Act did no more than give power to the Governor General to make such regulations and do such things as appeared to him necessary for carrying out and giving effect to the provisions of Pt X (Economic Clauses) of the Treaty, including regulations for the punishment of offences against the regulations and conferring particular jurisdiction on the High Court. Neither Clause 10 nor Clause 20 of the Covenant is within Part X. The Treaty of Versailles was never adopted by Act of the Australian Parliament. Furthermore, the status of that Treaty following World War II has never been determined judicially or otherwise. At the 21st and final Assembly of the League of Nations, the League was formally dissolved by resolution of 18 April 1946. (Australian Multilateral Treaty List, Australian Treaties Library). 17 The alternative position adopted on behalf of the plaintiffs was that on signing the Charter of the United Nations, Australia confirmed its independent and sovereign status and when such signing was approved by the Charter of the United Nations Act 1945 (Cth), the Australian Constitution, being sourced in an Imperial Act, ceased to have effect in Australia insofar as Australian citizens were concerned, as did laws made pursuant to it. 18 The provisions of the Charter of the United Nations on which the plaintiffs relied were Articles 2.1 and 2.4. These provide as follows: "The Organisation and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following principles: 1. The Organisation is based on the principles of sovereign equality of all its Members. ... 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations." 19 The Purposes of the United Nations are stated in Article 1 of the Charter to be: "1. To maintain international peace and security, and to that end: To take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment of settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonising the actions of nations in the attainment of these common ends." 20 How these provisions affected the Australian Constitution or the validity of the Income Tax Assessment Act 1936 was not made clear. No argument was advanced to demonstrate the respect or respects in which the Australian Constitution was contrary to the principles of sovereign equality as set out in Article 2.1. Nor was it made clear how any of the provisions of the Australian Constitution involved a threat of force against the territorial integrity or political independence of Australia or were otherwise inconsistent with the Purposes of the United Nations (Article 2.4). 21 In the course of argument in an endeavour to test the consequences that would flow from the adoption of the plaintiff's arguments based on the Treaty of Versailles and the Charter of the United Nations, Mr Levick was asked what law would, on his argument, be in force in the Commonwealth from either 1919 or 1945. His reply was that the only law in force in Australia was international law. 22 A number of problems is raised by the acceptance of the arguments that have such a consequence. The first is that they fly in the face of commonsense and reality. A second is that the situation would then be totally vague as to what aspects of international law are in force in Australia. A third is that the notion that international law as such is part of domestic or municipal law flies in the face of a wealth of authority from the highest sources in a number of countries in which the common law operates and whose systems of law and government are the same as those in Australia. A fourth is that the High Court, and in particular Barwick CJ, took a different view in Bonser v La Macchia (1968-69) 122 CLR 177. That case was concerned with the validity of a law to control fishing operations in Australian waters beyond territorial limits made pursuant to s 51(x) of the Australian Constitution. The High Court upheld the validity of the legislation. Barwick CJ (at 189) considered in detail the status of Australia following the enactment of the Commonwealth of Australia Constitution Act (Imp). He considered that at some point at or since the passage of the Statute of Westminster in 1931 in implementation of the Balfour Declaration, Australia became an independent nation state. Notwithstanding that conclusion he upheld the validity of the legislation which depended upon the validity and operation of the Australian Constitution. 23 Windeyer J also considered the position of the Commonwealth as a sovereign nation and contrasted the situation of the Commonwealth with the situation of the Australian States. The Commonwealth had sovereignty in the sense of both imperium and dominium as those terms were used by Grotius and are understood in countries in which the civil law operates. By contrast at no time did any of the States have the status of an independent "sovereign" state. The States are not and never were nations, whereas Australia was recognised as having "grown into nationhood" so that it was "a sovereign nation, competent to exercise rights that by the law of nations are appurtenant to or attributes of sovereignty" (supra at 224). Windeyer J saw no difficulty in propounding this statement of the law whilst at the same time determining that the law relating to fisheries passed pursuant to s.51(x) of the Constitution was a valid enactment of the Australian Parliament. 24 If there is any substance whatsoever in the arguments advanced by Mr Levick, it is inconceivable that the High Court would have overlooked the dramatic consequence that would flow from them being correct. In my opinion the views expressed in Bonser v La Macchia (supra) and the decision in that case are inconsistent with the arguments to which I have referred. 25 The argument in support of the ground of defence that there had been no Royal Assent given to the Income Tax Assessment Act 1936 assumed the validity and ongoing operation of the Australian Constitution but asserted that Lord Gowrie VC, the Governor-General who purported to give the Royal Assent, was not in law the Governor-General. This, it was argued, came about because the appointment of Lord Gowrie was pursuant to Letters Patent issued by His Majesty King George V on 20 December 1935. Lord Gowrie's commission was not gazetted until 23 January 1936. His Majesty King George V died on 20 January 1936 and no new Letters Patent were issued in respect of Lord Gowrie until 10 January 1938, following the accession of His Majesty King George VI. Between the date of the death of King George V and the coronation of King George VI, it was argued that there was no King, because His Majesty King Edward VIII had never been crowned. There was thus "an interregnum" as a consequence of which Lord Gowrie had no power to assent to the Income Tax Assessment Act 1936. 26 Each of the arguments referred to above has been the subject of decision either by a Justice of the High Court or by the Federal Court. In each of the cases in which such arguments were considered they were rejected. Recognising that this posed problems for his submission, Mr Levick boldly submitted that this court should not follow such decisions because it was not bound by any of them, since there was no appeal from this court to either the Federal Court or to a single Justice of the High Court. However, he was unable to point to any authority in which the relationship between decisions of the Supreme Court on the one hand and decisions of the Federal Court and of single Justices of the High Court on the other had been considered. 27 Undoubtedly decisions of a single Justice of the High Court must be afforded the greatest respect and treated as highly persuasive, even if not technically binding. This arises out of the need to give proper weight to the position of Justices of the High Court as members of the ultimate court of appeal in Australia. 28 The relationship between decisions of the Supreme Court and those of the Federal Court was dealt with in Australian Securities Commission v Marlborough Gold Mines Limited (1992 to 1993) 177 CLR 485. In that case the Supreme Court of Western Australia had declined to follow a decision of the Federal Court concerning s 411 of the Corporations Law. On appeal Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said: "It is somewhat surprising that the Full Court of the Supreme Court of Western Australia and more particularly Mr Commissioner Ng, declined to follow what was said by the Full Court or the Federal Court in Windsor. Although the considerations applying are somewhat different from those applying in Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation...is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong" (supra at 492)." 29 In the present case a number of the arguments referred to above relate to the Australian Constitution and Federal legislation. The statement by the High Court in Australian Securities Commission v Marlborough Gold Mines Limited (supra) is there apposite. 30 In Joose v Australian Securities and Investment Commission (1988) 73 ALJR 232, Hayne J was called upon to consider the validity and operative effect of the Income Tax Assessment Act 1936 and a number of related taxation statutes including the Income Tax Assessment Act 1997. The argument advanced was that there had been a break in sovereignty in Australia with the consequence that much of the legislation purportedly passed by the Australian Parliament was invalid. This argument depended primarily upon the invalidity or inoperativeness of the Australian Constitution. However, it was also argued that the Royal Assent had not been validly given to the Acts in question. Furthermore, it was submitted that when Australia signed the Treaty of Versailles as a recognised and independent sovereign entity, the Australian Constitution ceased to have effect. 31 The arguments raised before Hayne J bear a remarkable similarity to a number of those raised in the present case. In dismissing such arguments Hayne J said: "the points that it is sought to agitate are not arguable", and "none of the applicants identifies a point having sufficient merit to warrant removal of the cause concerned into this Court" (supra at 235).

32 I respectfully agree with these conclusions and with the reasons for such conclusions. 33 In the course of his reasons Hayne J discussed the meaning of sovereignty. He distinguished between the meaning of sovereignty in the political sense on the one hand and sovereignty in the sense of the supreme legislative authority recognised in a particular legal system on the other. The fact that Australia is, and is properly described as, a sovereign and independent nation state is, he said: "in part a statement about politics and in part about...the realities of the relationship this century between the United Kingdom and Australia" (supra 235-236).

34 Although no arguments were advanced on behalf of the plaintiffs based on the Statute of Westminster 1931 (Imp), the Statute of Westminster Adoption Act 1942 (Cth) or the Australia Acts 1986, all deal with aspects of political sovereignty. So too do the Treaty of Versailles and the Charter of the United Nations. Those Treaties are concerned with Australia's place in the international community and with its international dealings. Those treaties are not part of the law to be applied in this court. As Hayne J pointed out: "Provisions of an international treaty to which Australia is a party do not form part of domestic law unless incorporated by statute". (supra at 237). 35 This statement reaffirms law of longstanding. It recognises that whilst treaties may operate internationally and as part of international law, they are not, nor is international law as such, part of the law of Australia. For example, in Chow Hung Ching v The King (1948) 77 CLR 449 Latham CJ said: "International law is not as such part of the law of Australia...but a universally recognised principle of international law would be applied by our courts". (Supra at 462).

36 Dixon J said: "The true view...is 'that international law is not part, but one of the sources, of English law'...'in each case in which the question arises the court must consider whether the particular rule of international law has been received in, and so become a source of English law'. (Sir William Holdsworth, Relations of English Law to International Law; Essays in Law and History, p 267" (supra at 277);

and "...a treaty, at all events one which does not terminate a state of war, has no legal effect upon the rights and duties of the subject and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty." (Supra 478). 37 These statements of the law make it unarguably clear that the Treaty of Versailles as such was never part of the domestic law of Australia and therefore had no legal effect on the rights and duties of Australian citizens. Accordingly, reliance upon it in a court of law as a defence to a legal claim will be ineffective and the defence based on it must fail and should be struck out. 38 The Charter of the United Nations does not have the force of law in Australia either (Hayne J supra 237). This statement of the law adopts what was said by Barwick CJ and Gibbs J in Bradley v the Commonwealth (1973) 128 CLR 557. In that case the Post Master General had withdrawn postal and communication facilities from the Rhodesia Information Centre on the basis that the Security Council of the United Nations had described the regime then in power in Rhodesia as illegal and had requested Member States to take action under Article 41 of the Charter of United Nations against the representatives of such regime. In deciding that the Post Master General had acted unlawfully in withdrawing facilities it was said that s 3 of the Charter of the United Nations Act 1945 did not make the Charter binding on persons within Australia as part of municipal law. Neither the Charter nor the resolutions of the Security Council had been carried into effect by legislation into Australia. Barwick CJ and Gibbs J said: "The Parliament has passed the Charter of the United Nations Act 1945 (Cth), s 3 of which provides that 'the Charter of the United Nations (a copy of which set out in the schedule to this Act) is approved.' That provision does not make the Charter itself binding on individuals within Australia as part of the law of the Commonwealth;"

and "Section 3 of the Charter of the United Nations Act 1945 was no doubt an effective provision for the purposes of international law but it does not reveal any intention to make the Charter binding upon persons within Australia as part of the municipal law of this country, and it does not have that effect." (Supra 582) 39 In Joose v Australian Securities and Investment Commission (supra) Hayne J posed the question: "...what law is to be applied in the courts of Australia." (at 236)

and answered it as follows: "It is...to the Constitution and to laws made by the Parliament of the Commonwealth under the Constitution that the courts must look". (id) 40 The decisions referred to above are a powerful basis for rejecting the arguments raised on behalf of the plaintiffs and which relate to the asserted invalidity or inoperativeness of the Australian Constitution. 41 In Greer v the Deputy Commissioner of Taxation (High Court S 33 of 1999, unreported, 26 April 2000) McHugh J considered an application under Order 60 r 6 of the High Court rules for an extension of time for complying with the rules relating to special leave. Counsel for the applicant, Mr D Fitzgibbon, was instructed in that matter by the solicitor in the present matter. He advanced arguments described as "constitutional" together with an argument that Lord Gowrie VC was not in law the Governor-General when he appended the Royal Assent to the Income Tax Assessment Act 1936. McHugh J described the "constitutional" arguments as "very close to being frivolous" and later as having "no merit at all". In rejecting the argument concerning the invalidity of the Royal Assent he said: "The second point sought to be raised concerns the constitutional validity of the Income Tax Assessment Act 1936. This argument is based on the proposition that, at the time when Lord Gowrie gave his assent to the Income Tax Assessment Act 1936, His Majesty King George V, who had appointed Lord Gowrie on 20 December 1935, had died on 20 January 1936 and that Lord Gowrie's commission was not gazetted until 23 January 1936. It is argued that the Letters Patent which were the source of the appointment of Lord Gowrie, expired with the death of the King and that no new Letters Patent were issued until 10 January 1938 after King George VI ascended the throne of the United Kingdom. The applicant contends that, as a result, Lord Gowrie had no power to assent to the Income Tax Assessment Act . This argument was raised in Deputy Commissioner of Taxation v Levick 4 ATR 621. Hill J rejected the argument and, in my view, the reasons his Honour gave for rejecting it were well taken." 42 In Helljay Investments Pty Limited v Deputy Commissioner of Taxation (1999) 166 ALR 302 application was made for removal of proceedings from the Supreme Court of the Australian Capital Territory to the High Court on the basis that a number of Commonwealth Acts, including the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997 and the Supreme Court Act 1933 (ACT), were invalid. The bases on which such invalidity was asserted included the arguments to which references have been made earlier in this judgment. An argument based on the Covenant of the League of Nations, which it was again argued recognised the sovereign status of Australia, was also advanced. In refusing the application for removal Hayne J said: "In my opinion none of the contentions which it is sought to urge against the validity of the...Acts...is arguable and, for that reason, no order for removal should be made. For the reasons I gave in Joose, I consider that the contentions advanced confuse questions of political sovereignty with the question of identifying the supreme legislative authority recognized in this legal system and the rules for recognizing its valid laws. As I said in Joose, the questions which the present application seeks to agitate are resolved by covering cl 5 of the Constitution. Considering the history of relations between this country and the United Kingdom or the history of international dealings of this country is not to the point...(and) the conclusion that the United Kingdom is a foreign power within the meaning of s 44(i) (of the Constitution) does not support the argument that the impugned acts are invalid." (supra at 308). 43 In McKewins Hairdressing and Beauty Supplies Pty Limited (in Liq) v the Deputy Commissioner of Taxation (2000) 171 ALR 335 Gummow J considered an application to remove a matter from the Supreme Court of New South Wales into the High Court pursuant to s 40 of the Judiciary Act 1903. The application was made on the basis that the matter involved questions arising under the Commonwealth Constitution or involving its interpretation which were said in turn to impact on the constitutional validity of the Income Tax Assessment Act 1936. The plaintiffs raised the so-called "interregnum" constitutional argument and, that there had been no valid Royal Assent to the Income Tax Assessment Act 1936. In dismissing the application Gummow J said that the constitutional arguments were "without foundation" (supra at 337). In that regard he agreed with what had been said by Hill J in Deputy Commissioner of Taxation v Levick 1999 (168 ALR 383 at 391-394). He also adopted the statement of the law by McHugh J in Greer v Deputy Commissioner of Taxation (supra) and concluded that: "There was never any prospect of an order for removal being made...on the present application. Indeed, the arguments were so lacking in substance that the solicitor for the applicants was added as a party and ordered to pay costs on an indemnity basis." 44 In Dooney v Henry (High Court 2000 8 HCA 44, unreported 24 August 2000) and ten other associated actions, Callinan J considered applications to strike out or grant a permanent stay of, each of the actions on the basis that, inter alia, none of them disclosed a reasonable cause of action or were frivolous or vexatious. The actions concerned claims for the payment of income tax which had been made against Dooney and ten other persons. Defences had been pleaded which put in issue the lawfulness of the delegation to the DCT, denied the existence of the Australian Taxation Office and raised the so-called "interregnum" constitutional argument which denied the validity of the Royal Assent of Lord Gowrie VC as Governor-General to the Income Tax Assessment Act 1936. 45 In permanently staying the actions, Callinan J rejected the argument concerning the lawfulness of the delegation and nonexistence of the Australian Taxation Office, describing the latter argument as "misconceived" (page 5). The interregnum argument he rejected for the reasons given by Gummow J in McKewins Hairdressing and Beauty Supplies Pty Limited v Deputy Commissioner of Taxation (supra) with whose reasons he fully concurred. 46 I respectfully agree with and adopt what has been said by the Justices of the High Court in the decisions referred to above. 47 In Deputy Commissioner of Taxation v Levick (supra) Hill J considered a number of the arguments which had been advanced on behalf of the plaintiffs in the present matters. These included:

• the absence of a valid delegation to DCT; • that the Income Tax Assessment Act 1936 was invalid because of the absence of Royal Assent, arising out of the circumstances of the appointment of Lord Gowrie as Governor General; 48 These arguments were rejected by Hill J who concluded that they had no chance or no real chance of success or were untenable. As a consequence, he made an order joining the solicitor, Mr Levick, as a party and then ordered him to pay the costs of the matter. The detailed reasons given by Hill J have been approved by various of the Justices of the High Court in a number of respects. I respectfully agree with the reasons of Hill J and, to the extent that they touch upon the arguments presented in the present matter, adopt them. 49 An appeal was lodged from the decision of Hill J. The Full Court of the Federal Court ((2000) 44 ATR 315; Wilcox, Burchett and Tamberlin JJ) dismissed the appeal. Although the appeal related, inter alia, to the points argued before Hill J, when it came on for hearing none of those points was argued, indeed counsel then appearing for Mr Levick "virtually conceded all the points were unarguable" (supra at 320). However, it was necessary for the Full Federal Court to consider the arguments which had been advanced before Hill J in order to determine whether there was occasion for the special orders for costs that had been made. In determining that there was occasion for such an order, the Court distinguished the case before it from cases in which a client wished to pursue a difficult case in court or gave instructions that a case should be presented notwithstanding that the lawyer presenting the case regarded it as bound to fail. The Court then propounded the following test: " ... it (is) not necessary ... that the lawyers be satisfied that the points would succeed; but it (is) necessary that they be satisfied there was a rational basis on which they might succeed." (Supra at 355). 50 In the light of the above test, the decision reached by the Full Court of the Federal Court must be regarded as involving the conclusion that there was no rational basis on which the arguments advanced could succeed. 51 For the reasons set out above I am of the opinion that the additional arguments advanced on behalf of the plaintiffs at the hearing of this matter are without foundation and must fail. Accordingly, it would be inappropriate to permit an amendment of the summons in order to allow such arguments to be relied on. As to section 75 of the Constitution and section 38 of the Judiciary Act 1903 52 Chapter III (ss 71- 80) of the Australian Constitution is concerned with The Judicature. Section 75 provides that: "In all matters - (i.) Arising under any Treaty: (ii.) Affecting consuls or other representatives of other countries: (iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth is a party: (iv.) Between States, or between residents of different States, or between a State and a resident of another State: (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: The High Court shall have original jurisdiction."

53 Section 76 of the Constitution empowers the Parliament to make laws conferring original jurisdiction on the High Court: "...in any matter - (i.) Arising under this Constitution or involving its interpretation: (ii.) arising under any laws made by the Parliament ..." 54 Section 77 of the Constitution further empowers the Parliament to make laws "with respect to any of the matters mentioned in ss 75 and 76" defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is vested in the courts of the States. As contemplated by this provision, the Parliament has legislated in s 38 of the Judiciary Act 1903 for matters in which the jurisdiction of the High Court is exclusive. These include "matters arising directly under any treaty".

Section 78 of the Constitution confers power on the Parliament again using the phrase "in respect of matters". 55 The consistent use of the description "matters" in ss 75, 76, 77 and 78 involves the consequence that decisions in relation to the meaning of that word as it occurs in a particular section in Chapter III of the Constitution can be applied to the same word in other sections of that Chapter. The situation is the same in relation to the phrase "arising under" as used in s 75 (i), s 76(i) and s 76 (ii). 56 In order to deal with the claims that the cases before the Court should be referred to the High Court, it is necessary to consider the ambit and application of s 75 (i) of the Constitution. 57 In re Judiciary and Navigation Acts (1921) 29 CLR 257 the High Court (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ) decided that it was beyond the legislative power of the Parliament of the Commonwealth to confer on the High Court jurisdiction to determine abstract questions of law without the right or duty of any body or person being involved. The Court said: "We do not think that the word `matter' in section 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by determination by the Court."(at 265)

and " ... a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment by some act inhibited by law." (Supra at 266) 58 The importance of this formulation in the context of the present case is that a "matter" must involve a right or protection (defence) given by the law - the law that is the expression of the supreme legislative authority recognised in our legal system and applied in the Courts of Australia. Neither the Treaty of Versailles nor the Charter of the United Nations answers to this description. Neither has been made part of the law of Australia. Neither directly confers any rights to make claims or provides any protections or defences in the Courts. As a consequence those defences against claims made by the DCT, which on the arguments advanced on behalf of the defendants invoke the Treaty of Versailles and the Charter of the United Nations, are without foundation and must fail. 59 Furthermore, since neither of the treaties is part of the law of Australia, and since the defences which seek to rely upon them are not "matters" within the meaning of that term as used in s 75 (i) of the Constitution, they are not "matters" as required by s 38 of the Judiciary Act 1903 in order to confer exclusive jurisdiction on the High Court. This conclusion is supported by what was said by Hayne J in Joose v Australian Securities and Investments Commission (supra at 236 - 237, para 21). 60 Furthermore, in the course of argument Mr Levick conceded that even if the defences involved matters arising under a treaty within the meaning of s 75 (1) of the Australian Constitution and were thus within the original jurisdiction of the High Court, such original jurisdiction was not exclusive, although in arriving at my conclusion I have not relied on that concession. 61 It should be noted that no treaty is specified in the defences filed in the Local Court. So on their faces the grounds of defence which plead: "1. .(a) The plaintiff has no legal right to make a claim on the defendant as such purported legal rights are defective under the Treaty and Constitutional provisions relating to Treaties as contained in The Constitution of Australia ... " (b) That this Honourable Court is not possessed of jurisdiction to hear this matter and that pursuant to section 38 of the Judiciary Act 1903 and section 75 (1) of the Constitution that exclusive jurisdiction to hear this matter rests with the High Court."

should not be regarded as specifying a fact or facts as required by the rules of the Local Court. They are thus defective as to form and were properly struck out for this reason also. 62 There are also other grounds for upholding the decision of the Magistrate. In R v Donyadideh (1993) ACTR 1 Miles CJ had to consider whether certain offences which were before the Court arose under a treaty. Charges had been laid pursuant to s 8 (2) and s 16 (a) of the Crimes (Internationally Protected Persons) Act 1976 (Cth) and the Public Order (Protection of Persons and Property) 1971 (Cth). Objection was taken that the Supreme Court of the Australian Capital Territory did not have jurisdiction in relation to the charges involving offences against the Crimes (Internationally Protected Persons) Act 1976. Section 7 of that Act gives approval to the ratification by Australia of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, to which Australia was a signatory. That convention was an annexure to United Nations resolution 3166 (xxviii) adopted by the General Assembly by consensus on 14 December 1973 (Crimes Against Internationally Protected Persons: Prevention and Punishment. An Analysis of the UN Convention: Bloomfield and Fitzgerald (1975) page 249). That Convention provided, inter alia, that the international commission of murder, kidnapping or other attacks upon the person or liberty of an internationally protected person should be made a crime under its internal law by each state party and further provided that each state party was required to make such crimes punishable by appropriate penalties, which took into account their grave nature. The English text of the Convention was included as a schedule to the Act and so the definition of "internationally protected person" was to be found within the confines of the Act. 63 Miles CJ concluded that the charges under the Crimes (Internationally Protected Persons) Act 1976 did not arise under a treaty and therefore fell outside the provisions of s 75 (i) of the Constitution. In reaching his conclusion he said: "It is not enough that recourse is to be had to the treaty in order to decide the matter in issue. What is necessary is that the right, duty or liability in question `owes its existence' to the treaty or depends upon the treaty for its enforcement or has its source in the treaty). (supra at 6) 64 Having found that the treaty created no rights, duties, obligations or liabilities which were justiciable in Australian Law, Miles CJ held that the prosecution of a person for an offence under the Act was not a matter arising under the treaty even though it was necessary to look at the treaty (presumably as set out in the schedule to the Act) in order to determine the meaning of the term "internationally protected person". 65 That a matter arises under a treaty does not have the consequence of depriving a court of a State or Territory of jurisdiction in relation to such matter. Whilst s 75 (i) of the Constitution confers original jurisdiction on the High Court in respect of such a matter, its jurisdiction is not exclusive. Exclusivity of High Court jurisdiction in relation to a matter arising under a treaty depends upon s 38 of the Judiciary Act 1903. In order for the jurisdiction of the High Court to be exclusive the matter must be one which arises directly under a treaty. Furthermore, the Crimes (Internationally Protected Persons) Act 1976, includes a specific provision (s 16) that a matter arising under the Act, "including a question of the interpretation of the Convention for the purposes of the Act" should "be deemed not to be a matter arising directly under a treaty" for the purposes of s 38 of The Judiciary Act 1903. Thus in R v Donyadideh (supra) the fact that the Convention had to be referred to or interpreted in order to determine whether or not the persons in respect of or against whom the offences had been committed would not fall within the ambit of s 38 of The Judiciary Act 1903, even if interpreting the schedule to the Act were to be regarded as interpreting the Treaty. As a consequence the Supreme Court of the Australian Capital Territory was not deprived of jurisdiction to hear and determine the matter, which was what Miles CJ decided. 66 In reaching his conclusion Miles CJ expressly stated that he differed from the view expressed by McLelland J in Bluett v Fadden (1956) 56 SR (NSW) 254. In that case McLelland J had to consider the jurisdiction of the Supreme Court of New South Wales to hear a matter which turned on whether shares in a company had been vested in the Controller of Enemy Property pursuant to the provisions of the National Security Act (Enemy Property) Regulations. The regulations had been promulgated for the purposes of giving effect to Article 6 of an international agreement, namely the Agreement on Reparations from Germany on the Establishment of an Inter-allied Reparation Agency and on the Restitution of Monetary Gold of which Australia was a signatory. The regulations were expressed to have been made pursuant to the Trading with the Enemy Act 1939 - 1952. 67 Article 6 of the treaty provided: " (a.) Each Signatory Government shall, under such procedures as it may choose, hold or dispose of German enemy assets within its jurisdiction in manners designed to preclude their return to German ownership and control and shall charge against its reparation share such assets... E. The German enemy assets to be charged against reparation shares shall include assets which are in reality German enemy assets despite the fact that the nominal owner of such assets is not a German enemy. Each Signatory Government shall enact legislation or take other appropriate steps if it has not already done so to render null and void all transfers made, after the occupation of its territory or its entry into the war, for the fraudulent purpose of cloaking German enemy interests and thus saving them harmless from the effect of control measures regarding German enemy interests."

68 McLelland J said that: "It is the legislation which creates the rights which are justiciable and I am of opinion that having regard to this fact the rights can only be said to arise under the legislation and cannot be said to arise under the treaty. Section 75 must, I think, be taken to refer to cases where the decision of the case depends upon the interpretation of the treaty. In such cases, the matter in question arises under the treaty" (supra at 261) 69 To this point there is no divergence between Miles CJ and McLelland J. However McLelland J continued: "It is, of course, primarily the legislation that has to be interpreted but, where the terms of the treaty have by legislation been made part of the law of the land, it is in a very real sense the treaty that is being interpreted. I may add that I find it difficult to ascertain any subject matter falling within section 75, if section 75 does not refer to the type of case I have mentioned." (supra at 261). 70 He was further of the opinion that the word "arising" means "necessary for the decision on the ascertained or asserted facts of the case". His conclusion in this regard referred to the judgment of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration: Ex Parte Barrett (1945) 70 CLR 141 at 152 which he used for the purpose of determining that there were three possible interpretations as to the types of cases in which it may be said there are matters arising under a law of the Commonwealth or Treaty. Whether those categories are as limited as the law stated by Latham CJ then suggested is now open to question in the light of later decisions of the High Court. Furthermore, Latham CJ himself was of the view that if the right claimed or defence raised is a right or defence conferred by or under a Federal statute, then the claim or defence arises under such statute, but the fact that the construction of a Federal law and perhaps even its validity is involved is not necessary for the matter to be one that arises under that law. Latham CJ was also of the view that the decisions of the United States Supreme Court, which were referred to and relied upon by McLelland J, were not of very great assistance. In relation to s 76 (i) of the Constitution he said: " ... a case may involve the interpretation of the Constitution without arising under the Constitution". 71 In relation to s 76 (ii) of the Constitution he said: "The inquiry to be made is not whether the determination of the matter involves the interpretation of a Federal Law. The relevant inquiry is whether the matter arises under the law. Thus ... a matter may properly be said to arise under a Federal law if the right or duty in the matter owes its existence to Federal law or depends upon Federal law for its enforcement whether or not the determination of the controversy involves the interpretation (or validity) of the law." (supra at 154). 72 This decision was considered in Felton v Mulligan (1971) 124 CLR 367. Walsh J, with whose reasons Barwick CJ agreed, said that: "The fact that the interpretation of a law is involved does not necessarily mean that there is a matter arising under the law." (at 408) within the meaning of that phrase as used in Chapter III of the Constitution. In this respect the phrase "arising under", which occurs in s 75 (i) and 76 (i) and (ii), is to be contrasted with the phrase "involving its interpretation" which also occurs in s 76 (i) and is used to express an alternative to "arising under". 73 Windeyer J adopted the following statement of the law by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration: Ex parte Barrett (supra): " ... a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law ..." (supra at 387). Windeyer J also said: "In my view a matter does not arise for adjudication under a law made by the Commonwealth Parliament unless a statute is relied upon for giving a right claimed or as the direct source of a defence asserted." (supra at 388). 74 McLelland J used as the criterion for determining whether a matter arises under a treaty that "the decision of the case depends upon the interpretation of the treaty" (supra at 261). Applying that criterion he decided that a defence which pleaded: "That this suit involves a matter directly arising under a treaty within section 38 of the Judiciary Act"

did not raise a question of the interpretation of the relevant treaty and as a consequence that "no matter (had) arisen under a treaty" and as a consequence that the suit "(did) not involve a matter arising directly under a treaty within the meaning of s 38 of the Judiciary Act ." (supra at 262, 263). 75 In the instant case the defence which was pleaded, but struck out by the Magistrate, was in a form no more effective than that dealt with by McLelland J to bring the defence within section 38 of the Judiciary Act 1903. 76 There is nothing in the defence which, as it emerged, seeks to rely on the Treaty of Versailles which calls for the construction or interpretation of the clauses of that treaty. The Treaty of Versailles is not part of the law of Australia; nor is the Charter of United Nations. Their terms therefore do not require construction or interpretation. Thus even applying the approach adopted by McLelland J the defence does not arise under a treaty within the meaning of section 75 (i) of the Constitution. A fortiori, it does not arise directly under a treaty so as to confer exclusive jurisdiction upon the High Court. 77 Adopting the approach of McLelland J in Bluett v Fadden (supra) the pleading of the defendants which seeks to invoke the exclusive jurisdiction of the High Court was properly struck out; a fortiori if the approach adopted by Miles CJ in R v Donyadideh (supra) is adopted. 78 Another way of considering the defences which seek to invoke the Treaty of Versailles and the Charter of the United Nations is to regard them as allegations that are merely colourable, not raising any real question under the treaties, not bona fide, not genuinely raised. These various criteria were applied in Hooper v The Egg & Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665 at 673 per Latham CJ, at 677 per Starke J, and at 681 per Evatt J. In my opinion the assertions in the defences that the legal rights of the DCT "are defective under the Treaty and Constitutional provisions relating to Treaties" and that the Court "is not possessed of jurisdiction to hear this matter" are, in the words of Starke J (supra), "merely colourable: they do not raise any real question (under a treaty) ... and are mere pleading allegations". (supra at 677). 79 In reaching this conclusion I have applied the test suggested by Professor PH Lane (Australian Constitutional Law page 139) namely: " ... a litigant will exhibit 'bona fides' ... if the state of existing law leaves room for argument; his 'bona fides' would be suspect if there existed an authority four-square against him". 80 In the present case the "treaty" defence as pleaded in each of the actions is general, non-specific. There is no nomination of any particular treaty or treaties. There is a mere allegation in a pleading that there is a matter arising under a treaty. Furthermore, existing authority is four-square against the defence. 81 For the foregoing reasons I am of the opinion that there is no basis for the claim made by the plaintiffs in their summonses that the Magistrate acted in contravention of s 38 of the Judiciary Act 1903 (Cth) and section 75 of the Commonwealth of Australia Constitution Act 1900 in striking out the notice of grounds of defence of each of the plaintiffs and entering summary judgment against them. 82 The summonses should be dismissed. 83 (Argument as to costs ensued). 84 In a number of matters in which the same or cognate defences have been considered, or in which applications for removal of matters into the High Court have involved some at least of the arguments advanced on behalf of the plaintiffs in the present matters, special orders for costs have been made. 85 In Levick v Deputy Commissioner of Taxation (supra) Hill J made such an order and his order was upheld on appeal by the Full Court of the Federal Court. However in that case, the Full Court (Wilcox, Burchett and Tamberlin JJ) were careful to make it clear that special orders of the kind made in that case should be considered as a rarity and exceptional, not the norm. Secondly, although orders for indemnity costs were made in some of the cases, for example in Dooney v Chapman (supra) and the other ten related cases, the indemnity costs order did not extend to or go to the extent of requiring the solicitors to pay them. 86 In the present case Mr Levick has correctly pointed out that the defences filed in the local court in Newcastle by each of the plaintiffs in the present matters, who in those matters were the defendants, were filed before he or his firm were involved in the matter. 87 True it is that the summonses in this court in those matters were drafted by Mr Levick, but, as the judgment in this matter indicates that as drafted they relied on s75(1) of the Constitution and s38 of the Judiciary Act 1903. In relation to this defence there was, and notwithstanding what I have decided remains, a divergence between Miles CJ in R v Donyadideh (supra) on the one hand and McLelland J in Bluett v Fadden (supra) on the other. Those considerations seem to be me to be adequate reason for not making an order for costs against Mr Levick. 88 However, viewing the matters as a whole, I am left with the distinct impression that those raising the defences could not have been unaware of the course of decision to which I have referred in the judgment. The defences are too detailed for that to be the case. 89 The way in which arguments raised in previous cases have been tracked in the defences suggests a close attention to the arguments previously raised that would, to my mind, be likely to involve some understanding of the likely difficulties involved in their success. Even if that were to be put to one side, the proceedings in this Court followed arguments in the local court at Newcastle in which matters of the kind argued before this court clearly were or were open to be raised. 90 This matter has taken a considerable amount of the Court's time at hearing and a not inconsiderable amount of judicial time in formulating the reasons for judgment since the matter was argued on Monday of last week. That is a matter which I think can properly in the circumstances be reflected in the order for costs. 91 The plaintiff will pay the defendants costs of each of the proceedings on an indemnity basis. **********

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(Imp), the Statute of Westminster Adoption Act 1942(Cth)

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