McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27

In McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27, Mr Wayne Levick appeared on behalf of the applicants, challenging the validity of the commission and appointment of the Office of Governor-General. The court responded:

“The constitutional arguments which are propounded in the s 78B notice and the written outline are without foundation. They are untenable. I agree in that regard with what Hill J said in his judgment in Levick (1999) 168 ALR 383 at 391‑394..  I also agree with what was said by Hayne J in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) HCA 56 at 73; 166 ALR 302 at 308. I should also add that at least some of these matters had been canvassed in the submissions McHugh J dealt with in Greer v Deputy Commissioner of Taxation (Unreported, 26 April 2000.) in which the applicant was represented by the same counsel and solicitor.  His Honour said, after dealing with various submissions, (at 11):

“But, in addition to that, it seems to me that two of the points really have no merit at all.  The second point sought to be raised concerns the constitutional validity of the Income Tax Assessment Act 1936 [(Cth) (‘the Act’)]. This argument is based on the proposition that, at the time when Lord Gowrie gave his assent to [the Act], 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 Act]. This argument was raised in Deputy Commissioner of Taxation v Levick.  Justice Hill rejected the argument and, in my view, the reasons his Honour gave for rejecting it were well taken.”

Mr Wayne Levick had already brought these matters in previous proceedings, and an order for costs was made against him.  The court noted:

“The power to make such an order should be exercised sparingly, in particular where the order sought is one for indemnity costs.  However, it is of the first importance that solicitors observe the basic professional requirement and obligation to the courts before which they appear that they not institute and conduct litigation on instructions for some third party which is a stranger to that litigation.  It is not to the point that Mr Levick may have believed that what was sought to be done would have benefited the company or its directors or that for a time at least the directors may have acquiesced in this course.  This must be all the more so where a liquidation has supervened in the proceedings and where those proceedings, in any event, have no prospect of success. In all the circumstances, not only should Mr Levick bear the costs of the Deputy Commissioner but this should be on an indemnity basis.”

Click to access mckewins-hairdressing-and-beauty-supplies-pty-ltd-v-deputy-commissioner-of-taxation-s123-1999-2000-hca-27.pdf

See also Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No 3) [2000] SASC 286; 45 ATR 262, Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56, Joosse v Australian Securities and Investment Commission [1998] HCA 77, Buckingham Gate International Pty Ltd v Australia New Zealand Banking Group Limited [2000] NSWSC 946, Batten v Police [1998] SASC 6778, Petrie; Trustee of the property of Aitken (Bankrupt) v Aitken & Ors [2019] FCCA 16, St. Edward’s Crown, The Sir Harry Gibbs letter, Steven Spiers, Commonwealth of Australia?  Nah, it’s now called STRAYA! and other articles on this website under the Tag “A break in sovereignty“.

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