The Institute of Taxation Research and Wayne Levick

The Institute of Taxation Research was formed in 1998, promising that one could make any tax liability voluntary if they used their services. The strategy centered around the proposition that the taxation legislation is invalid, as the whole legal system has no basis in law and the constitution is invalid, so there is no basis in law for the exercise of the legislative powers of the state and federal Parliaments or the executive powers of Australian governments. The argument contended that Australia became a sovereign nation with the signing of the Treaty of Versailles and the acceptance into the League of Nations, and therefore the continued use of UK enactments such as the Commonwealth and the State constitutions contravened various provisions of international law, such as the Covenant of the League of Nations, the United Nations Charter, and the Statute of the International Court of Justice. 1

Click to access the-institute-of-taxation-research.pdf

Most of the themes expressed by the Institute of Taxation Research were compiled in a publication prepared by the Institution for Constitutional Education and Research, entitled Australia: the concealed colony!which purported to be “…a report to the United Nations on the continuance of the application of British law within the territory of the independent sovereign nation Australia”. 2

Click to access australia-the-concealed-colony.pdf

The Institute of Taxation Research employed multi-level marketing schemes, paying commissions to those that brought them clients. Many prominent figures in the movement were involved with the group, such as barrister David Fitzgibbon, solicitor Wayne Levick, and Wolter Joosse. The directors of the Institute of Taxation Research were Ian Sidney Henke, Lance Stewart Miller, and Robyn Diane Coningham. The Deputy Commissioner of Taxation alleged that the Institute of Taxation Research was operating a “professional and smoothly run scam” as not a single case out of hundreds had ever been successful.

It is clear that there was a relationship between Wolter Joosse and the Institute of Taxation Research and its director Ian Henke from the start. As stated in Newman v Financial Wisdom Ltd [2004] VSC 216 (at 157) 3 regarding Roger Duncan, he was introduced to both Ian Henke and Wolter Joosse in early 1999 by an accountant named Peter Schimana, and that they were:

“…connected with an organisation called the “Institute of Taxation Research, who Schimana said could help him negotiate with the ATO. Henke told Mr Duncan that the Institute of Taxation Research could prove that all taxation legislation in Australia was unconstitutional and unenforceable.”

In Joossé v Commissioner of Taxation [2007] FCA 445, 4 Wolter Joosse admitted (at 53) that he had not appeared in the Supreme Court to defend the company, which he thought was already defunct but had been concerned, instead, “to allow the opportunity to raise irregularities in law promoted by the Institute of Taxation Research which funded any such challenges”.

Although there were some earlier cases the same year in the Supreme Courts and Federal Court in Batten v Police [1998] SASC 6778, Australian Securities Commission v White, Errol John [1998] FCA 790 and Walsh & Anor v Professional Nominees Pty Ltd & Anor [1998] QCA 259, Wolter Joosse ran the first case of this particular contention in the High Court, in Joosse v Australian Securities and Investment Commission [1998] HCA 77 contending that there had been “…an unremedied, perhaps even irremediable, “break in sovereignty” in Australia” by the Treaty of Versailles so that subsequent legislation is invalid. He further alleged that since the references in the Constitution to the Queen were intended as references to the Queen “in the sovereignty of the United Kingdom” since the Royal Style and Titles Act 1973 (Cth), the Royal Assent has not been validly given. He also included the notion that as a sovereign nation certain international treaties have direct operation in Australian domestic law. The court responded:

“It is, then, to the Constitution and to laws made by the Parliament of the Commonwealth under the Constitution that the courts must look. And necessarily, of course, that will include laws made by the States whose Constitutions are continued, the powers of whose parliaments are continued, and the existing laws of which were continued (subject, in each case, of course, to the Constitution) by ss 106, 107 and 108 of the Constitution. It is not relevant to the inquiry required by covering cl 5 to inquire how Australia has been treated by other nations in its dealings with them or to inquire whether the Westminster Parliament could or could not pass legislation that has effect in Australia. Covering cl 5 provides that the Constitution and the laws made by the Parliament of the Commonwealth under the Constitution are binding on the courts, judges, and people of every State and of every part of the Commonwealth. None of the points that the applicants seek to make touches the validity of any of the laws that are in question or would make those laws any the less binding on the courts, judges, and people.

As I have noted earlier, the second of the three themes identified by the applicants relies on the Royal Style and Titles Act. As I understand it, the principal burden of the argument is that an Act of Parliament, changing the style or title by which the Queen is to be known in Australia, worked a fundamental constitutional change. The fact is, it did not. So far as Commonwealth legislation is concerned, it is ss 58, 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Federal Parliament. So far as now relevant, s 58 governs. It provides that the Governor‑General “shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name”. And there is no material that would suggest that has not been done in the case of each Commonwealth Act that now is challenged.”

See also Re Application to Issue a Proceeding; Ex parte Joosse (1999) 162 ALR 128 5

Click to access joosse-v-australian-securities-and-investment-commission-1998-hca-77.pdf

By early 1999, the theory was taken up and placed regularly in private mailers and the newsletters of many smaller ‘advocacy’ groups, and then on seemingly more professional looking sites supporting challenges to Australian taxation law. This prompted the Commissioner of Taxation to issue the following tax agent advice and media release entitled “You pay for wacky advice”.

wacky-page-001

In Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56, David Fitzgibbon appeared for Mr Murphy, instructed by Wayne Levick & Associates, alleging a break in the sovereignty of Australia at the Treaty of Versailles meant that current law and courts were inoperative.  It was further contended that the judges who had heard the earlier case should be disqualified for judicial bias as they had already rejected those concepts. The court upheld the previous judgment and ruled that following precedent does not constitute bias. The court noted that the legal issues were very similar to those that were discussed in Joosse v Australian Securities and Investment Commission [1998] HCA 77which are likewise resolved by covering clause 5 of the Constitution. The Institute of Taxation Research wasn’t mentioned in this case, but from the litigation that followed it becomes obvious where Wayne Levick had gained the concepts contended in this case from. 

Click to access helljay-investments-pty-ltd-v-deputy-commissioner-of-taxation-1999-hca-56-74-aljr-68-166-alr-302.pdf

The premise became known as “The Murphy furphy” after the applicant in this case, Mr Murphy.

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The theory went global with the same basic premise being extended to Canada and New Zealand. The February 2001 issue of Investigate magazine claimed that

“…on January 10, 1920, sovereignty had just been transferred from the British Crown to the people of New Zealand, but the transfer of power was not legally ratified by the colonial New Zealand Government. There was no switch-over. All the old laws and political machinery continued…”

In Poonon Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1121 the applicants resisted a winding up order, with David Fitzgibbon as counsel, instructed by Wayne Levick & Associates. The grounds included this issue relating to sovereignty which the court noted was the subject of the judgments of Hayne J in Joosse v Australian Securities and Investment Commission [1998] HCA 77 and Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56. It was also alleged that the legislation constituting the Australian Taxation Office was not validly gazetted and promulgated as required by law, which the court noted the issue had also been raised in proceedings before Hill J in the Federal Court of Australia in Deputy Commissioner of Taxation v Levick [1999] FCA 1580; 168 ALR 783. Next, was the assertion that the Income Tax Assessment Act 1936 (Cth) was never validly assented to by the Governor-General of the time, Lord Gowrie, because of the absence of letters patent during the interregnum between the reigns of Edward VIII and George VI, and the assertion that the Corporations Law of New South Wales (and presumably the Corporations Laws of each other State and Territory) are invalid, extrapolating on the decision of the High Court of Australia in Sue v Hill (1999) HCA 30, that since the Australia Acts 1986, it was somehow unconstitutional for Acts of the Commonwealth and State Parliaments to be assented to by the Governor-General and Governors respectively, because they were representatives of a foreign sovereign. The arguments were rejected, the defendant’s application for a stay of the orders denied, and the notice of motion was dismissed.

Click to access poonon-pty-ltd-v-deputy-commissioner-of-taxation-1999-nswsc-1121.pdf

The Australian Financial Review published the following public notice, on 16 October 2000. 6

“I Joseph Richard Bryant attended a public meeting held at the Burwood RSL Club on Sunday 8 October 2000. The meeting was called by The Institute of Taxation Research (ITR) and was addressed by a Mr John Lamont (M.D.) and Mr Wayne Levick (lawyer). The speakers announced that the ITR and its co-organisation The Institution for Constitutional Education and Research has invited the United Nations into Australia to:

  • Establish an interim military government in Australia.
  • Install an interim Constitution filed with the UN by the ITR.
  • Abolish the existing Federal, State and Local governments.
  • Abolish all foundation and existing law.
  • To give Australia a totally new start.
  • That copies of the interim constitution filed with the UN are not available.
  • That the speakers had not seen the interim constitution.
  • That this was too be the last ITR public meeting due to the fact that they would be completely tied up with UN procedures from this point of time.
  • That they expect the UN to take control within weeks.
  • Two books of papers said to be the UN application were on display.
  • On sale a book containing the papers as filed with the UN (not including the filed constitution) to bring about the above actions.

This is the first time I have been made aware of the proposal. I spoke against it at the meeting. The proposal is an act of treason of the highest order.”

The Australian Financial Review reported on 28 March 2001: 7

“The Institute of Taxation Research has lost its long-running battle to have Australia’s tax laws declared technically invalid, following an order by the South Australian Supreme Court that the company be wound up. The court appointed a liquidator to oversee the wind-up of ITR and ordered the company to repay the legal costs of the Australian Taxation Office. ITR has spent the past few years arguing that changes to Australia’s international sovereignty since 1901 meant that the laws passed by the Federal and State governments were illegal, including the laws governing income tax and the GST. During that time it launched more than 35 legal challenges on behalf of clients, none of which has been successful…”

The article went on to point out that in February 2001 the Federal Court in Brisbane ruled the ITR and NSW solicitor Wayne Levick were guilty of providing misleading advice, following action by the Australian Competition and Consumer Commission, who published the following notice. 8

ACCC stops tax experts _ ACCC-page-001

These days the group itself has been disbanded, although still spreads the ideas through a website called Basic Fraud. 9 as Wayne Levick stated when he was interviewed by Vinnie Eastwood 10 on his show on 15 October 2018, and later uploaded onto his own YouTube channel, 11 where he makes clear he still believes in the validity of these concepts, despite their being thoroughly refuted by the courts in many cases, and it had cost him his career pursuing the concepts.

In Deputy Commissioner of Taxation v Levick [1999] FCA 1580; 168 ALR 783, 12 Hill J. made an order imposing on Mr Levick personal liability for costs incurred by the Deputy Commissioner of Taxation in relation to bankruptcy proceedings against Paul Quinn, a client of Mr Levick. David Fitzgibbon had appeared for Mr Quinn in the case, instructed by Mr Levick. The written submissions were prepared by Mr Fitzgibbon, asserting that “the legal steps necessary to establish the Australian Taxation Office as an arm of the Commonwealth Government were not completed nor gazetted” and that the “Income Tax Assessment Act 1936 was not validly assented to according to law in June of 1936 by the then Australian Governor General Lord Gowrie”

The Australian Government Solicitor filed a Notice of Motion, seeking orders that Mr Levick be joined as a party to the proceeding and be ordered to pay his costs on an indemnity basis, on the grounds the submissions constituted an abuse of process, brought in disregard of a proper consideration of the prospects of success, which was unreasonable behaviour on the part of the solicitor.

When the matter came before Hill J, Mr Fitzgibbon asked Hill J to rule on the motion for costs, but his Honour declined to do that in advance of hearing the argument to be advanced in support of the Notice of Opposition. Both Mr Fitzgibbon and Mr Levick then withdrew from the case, and did not want to put anything else.  Hill J thereupon made a sequestration order against Mr Quinn.  Apparently, Mr Fitzgibbon and Mr Levick remained in Court while this was done.

After an examination of the points raised in the documents filed by Mr Levick, Hill J concluded that:

“The discussion of the arguments put … demonstrates that they are untenable – indeed one might even say of them that they were nonsense.  If it matters it can be inferred that both Mr Levick and Mr Fitzgibbon of counsel knew that this was so when the moment that a third party cost order was raised they immediately expressed the desire to withdraw, presumably so as to avoid the third party order.  This hardly displayed any confidence in the arguability of the matters which they previously indicated they intended to advance.”

“It is not as if these arguments would have originated from the client.  They clearly originated with the lawyers.  It is obvious enough that they were intended to delay as long as possible the making of a sequestration order against Mr Quinn.  But it is not necessary to go that far to justify the making of an order that the solicitor pay the costs of the Deputy Commissioner on an indemnity basis occasioned by the raising of these matters.  There is, as well, an ethical question which arises where solicitor or counsel advise their clients to pursue spurious arguments before the Courts.”

Click to access deputy-commissioner-of-taxation-v-levick-1999-fca-1580.pdf

Levick v Deputy Commissioner of Taxation [2000] FCA 674 13 was an appeal against this order. When this appeal came on for hearing, none of these points was argued by counsel for Mr Levick, they virtually conceded to the court all the points were unarguable, but maintained that Hill J erred in making an order against their client.  The court rejected the contention, responding that in the present case, Hill J inferred that the subject arguments “clearly originated with the lawyers”; that is, Mr Levick and Mr Fitzgibbon, and that no challenge can be made to that inference. It held that this is a case where the lawyers themselves thought up the “legal” points and advanced them on behalf of the client, and it was unreasonable, in the sense of a dereliction of duty (to both the client and the court), for any lawyer to take that course without first being satisfied that the points are, at least, seriously arguable. The appeal was dismissed with costs.

Click to access levick-v-deputy-commissioner-of-taxation-2000-fca-674.pdf

In McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27, David Fitzgibbon again appeared for the second respondent, Wayne Levick, who was again joined as a party and ordered to pay the costs of the Deputy Commissioner on an indemnity basis, due to the nature of the submissions being rejected in his own cases.  The documents were signed by Mr Levick, as solicitor for or on behalf of the applicant. The effect of Mr Levick’s evidence was that, in proceedings respecting McKewins, he had received instructions, including the text of two documents, not from the directors of the company but from the Institute of Taxation Research. He said he has a number of matters on which instructions are received from the Institute of Taxation Research.

“I’ve met a number but not all of the directors. They are engaged in, as I understand it, research into the Constitution with particular regard to taxation. They have also, or members of that group have also prepared and, I believe, filed a two volume application relating to these issues with a number of United Nations bodies and that was filed, I am told and verily believe, on 1 September last year.”

The court held that:

“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 Deputy Commissioner of Taxation v 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 308.

See also McKewins Hairdressing v Deputy Commissioner of Taxation [2000] HCATrans 183 14

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

In Dooney v Henry [2000] HCA 44 several matters were heard together, as the plaintiffs delivered Statements of Claim which all sought substantially the same relief and raised the same points for decision.  In every case a Reply had also been delivered, and these also raised similar issues for determination. Counsel for all the plaintiffs was David Fitzgibbon, and some of the arguments addressed were:

(at 6): “There then follows an allegation, purportedly supported by a number of particulars, which need not be repeated, that the Australian Taxation Office is a body without a legal existence. This last allegation, and the misconceived claim for relief in respect of it (prayer 5), can be immediately disposed of.  The Australian Taxation Office is not a legal personality, the applicant does not contend that it is, and whether the Australian Taxation Office is, or is not a legal personality, is not a matter of the slightest relevance to any issue or efficacious remedy that might be available to the respondent.”

(at 18): “Although it was obscurely put, the respondent also sought to argue that the Commonwealth of Australia, as a creditor under the Act, could not avail itself of the winding up provisions in the Corporations Law because that legislative scheme was a State enactment. The argument is untenable. It, or the same argument under a different guise, has been fully considered and found to be without substance in a number of cases in some of which Mr Fitzgibbon, counsel for the respondent appeared:

Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56 74 ALJR 68; 166 ALR 302; Greer v Deputy Commissioner of Taxation unreported, High Court of Australia (McHugh J), 26 April 1999; Re Application to Issue a Proceeding; Ex parte Joosse (1999) 162 ALR 128; McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27 74 ALJR 1000; 171 ALR 335; Walsh & Anor v Professional Nominees Pty Ltd & Anor [1998] QCA 259 (Pincus  JA, Thomas and Derrington JJ), 20 July 1998; Deputy Commissioner of Taxation v Hoperidge Pty Ltd unreported, Supreme Court of Queensland (Muir J), 28 July 1999; Re Kevjen Pty Ltd unreported, Supreme Court of Queensland (Muir J), 4 August 1999.

The next matter which the respondent raises is the so-called “interregnum argument” based upon an asserted deficiency in the appointment of Lord Gowrie VC as Governor-General and in the giving of Royal Assent to the Act. The substance of the same argument is set out at length in the reasons for judgment, and emphatically rejected, in McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27 74 ALJR 1000; 171 ALR 335 by Gummow J.  I fully concur in his Honour’s reasoning and argument in regard to it.

The final substantive matter advanced by the respondent is to be found in the Reply of the respondent, that the proclamation on 8 March 1986, after the commencement of the Australia Act 1986 (Cth) on 3 March 1986, of Her Majesty’s Letters Patent dated 14 February 1986 under the Royal Sign Manual and the Great Seal of the United Kingdom reconstituting the office of Governor of Queensland, was an invalid exercise of sovereignty by the United Kingdom with respect to Queensland. It followed, it was submitted, that appointments of judicial officers in Queensland are invalid. How this could have any relevance to Judges appointed before 1986 is left entirely unexplained. However put, the argument misconceives and misunderstands the comprehensive scheme of United Kingdom, Australian and State legislation which collectively was enacted as the Australia Acts pursuant to the “request and consent” provisions then found, so far as Australia and the States were concerned, in ss 4 and 9(2) and 9(3) of the Statute of Westminster 1931 (Imp) and in s 51(xxxviii) of the Commonwealth Constitution.  The Letters Patent of 14 February 1986 formed part of that scheme and anticipated the enactment by the United Kingdom Parliament of the Australia Act 1986 (UK), assent to which was given on 17 February 1986.  At the time when the Letters Patent were signed and sealed the use of the Great Seal of the United Kingdom in conjunction with the Royal Sign Manual was appropriate, having regard to the residual responsibilities of the United Kingdom in relation, relevantly, to Queensland at that time.  The proclamation thereafter of those Letters Patent was no more relevant to their validity than was the proclamation, after the death of King George V, of His Majesty’s commission appointing Lord Gowrie VC to the office of Governor-General.  While this is enough to dispose of the argument, I note in relation to Queensland that the operation of the Letters Patent of 14 February 1986 has, in any event, been superseded by the Constitution (Office of Governor) Act 1987 (Q) which presently provides for and affirms the office of Governor and the authorities and powers of that office.”

Click to access dooney-v-henry-2000-hca-44.pdf

In 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; 45 ATR 541 the plaintiffs were successfully sued for outstanding taxes, and sought orders that the decisions made against them be quashed and set aside. They were represented by Wayne Levick, who sought an adjournment so that the matter could be heard on a date which would be convenient to David Fitzgibbon, and 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. 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” which had been prepared by the Institute of Constitutional Education and Research.

The grounds of defence were that the Income Tax Assessment Act 1936 was invalid because  (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 Deputy Commissioner of Taxation because (a) there was no Deputy Commissioner of Taxation as a result of the Income Tax Assessment Act 1936 being invalid; (b) there was no lawful delegation of relevant function to the Deputy Commissioner of Taxation; (iv) there had been “a break in sovereignty” in 1919 when Australia signed the Treaty of Versailles, so that 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. Further, it was contended that the continued use of UK enactments was in contravention of Articles 10 and 20 of the Covenant of the League of Nations.

The court rejected these contentions, referring to Joosse v Australian Securities and Investment Commission [1998] HCA 77, Greer v Deputy Commissioner of Taxation (High Court, unreported, 26 April 2000), Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56, McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27. Dooney v Henry (2000) HCA 44, even Deputy Commissioner of Taxation v Levick (1999) 166 ALR 302 where Wayne Levick had costs awarded against him for the same contentions. Mr Levick pointed out that the defences filed in the local court by each of the plaintiffs were filed before he or his firm were involved in the matter, and hence costs were not awarded against him in this case. However, the judge noted that:

“…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. 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.”

Click to access 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-taxat.pdf

In Money Tree Management Services Pty Ltd & Anor v Deputy Commissioner of Taxation (No 6) [2000] SASC 315 15 both the Institute of Taxation Research and the applicants solicitor Mr Peter Kerin were joined as a party to the action after an application by the Commissioner, and ordered to pay his costs on an indemnity basis. This follows the order of the Chief Justice in Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 54 16 that the applicants pay the Commissioner’s costs, as it should have been clear to Money Tree, or at least to its advisers, that the submissions were “…manifestly untenable and that there was no prospect of the proceedings being successful”, and further in Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 2) (2000) 207 LSJS 287 17 where the Chief Justice made an order joining the Institute of Taxation Research as a party.  The solicitors for the Institute of Taxation Research filed a notice of appeal against the Chief Justice’s order, but failed to set the appeal down for hearing, to prepare an appeal book, or to further respond, and the application by the Commissioner was granted. See also Money Tree Management Services Pty Ltd & Institute of Taxation Research v Deputy Commissioner of Taxation (No 3) [2000] SASC 286, Money Tree Management Services Pty Ltd & Institute of Taxation Research v Deputy Commissioner of Taxation (No 4) [2000] SASC 313 18 and Money Tree Management Services Pty Ltd & Institute of Taxation Research v Deputy Commissioner of Taxation (No 5) [2000] SASC 314. 19 The Institute of Taxation Research filed a notice of appeal in Money Tree Management Services Pty Ltd & Institute of Taxation Research v Deputy Commissioner of Taxation [2000] SASC 345 20 but it was dismissed.

“As the Chief Justice noted in his reasons for judgment published on 1 March 2000, the arguments advanced by Money Tree in this case are substantially the same as arguments considered by Hayne J in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation(1999) 74 ALJR 68 and Joosse v Australian Securities and Investment Commission (1998) 73 ALJR 232. One argument which attacked the validity of the Income Tax Assessment Act was identical with an argument dismissed by Hill J in Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383. 21 The Chief Justice adopted the reasoning of Hayne J and Hill J in those decisions. Other arguments raised by the applicant are dealt with by the Chief Justice in paras 18 to 24 of his reasons. His Honour held that there was simply no substance in the applicant’s argument. I respectfully agree. I add that the Chief Justice is clearly correct. There was no merit in any of the arguments advanced in support of the application. That conclusion is reinforced by the fact that several judges, including three judges of the High Court, have also decided that the arguments relied on are untenable. In addition to the decisions of Hayne J in Helljay and Joosse, two applications based on similar grounds were decided in the High Court after the Chief Justice had published his reasons. Both applications were dismissed, the first by McHugh J in Greer v Deputy Commissioner of Taxation (unreported, 26 April 2000) and the second by Gummow J in McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 335. It is pertinent to add that all or, if not all, almost all, of those applications are based on documents prepared by ITR. Those arguments have been consistently rejected in the decision to which I have referred. To the extent that the notice of appeal seeks to advance arguments led before the Chief Justice, I think they are bound to fail.”

Click to access money-tree-management-service-pty-ltd-v-deputy-commissioner-of-taxation-no-3-2000-sasc-286-45-atr-262.pdf

Prior to Greer v Mulcahy [2000] NSWSC 668 22 there has been a sequence of litigation proceedings between the applicant and the Deputy Commissioner of Taxation, which resulted in bankruptcy. This included Greer v Deputy Commissioner of Taxation [2000] HCA S33/1999 (26 April 2000), in which the atypical Institute of Taxation Research contentions were rejected. David Fitzgibbon of Wayne Levick and Associates appeared once more, arguing that there is no such entity as the Australian Taxation Office and no grounds for any claim for tax being made. The court responded:

“So far as the arguments about the existence or non-existence of the Australian Taxation Office are concerned at least at the present time that matter has been determined in accordance with the decision of Hill J in the Federal Court of Australia in Deputy Commissioner of Taxation v Levick, (1999) FCA 1580. The judge in that case pointed out that the existence or non-existence of the office has no bearing whatsoever on the right of the Deputy Commissioner of Taxation to recover tax due to the Commonwealth. That decision was upheld by the Full Court of the Federal Court of Australia.”

Click to access greer-v-mulcahy-2000-nswsc-668.pdf

In Buckingham Gate International Pty Ltd v Australia New Zealand Banking Group Limited; MWW Baker Pty Ltd v Australia New Zealand Banking Group Limited; Jasorc Pty Ltd v Australia New Zealand Banking Group Limited [2000] NSWSC 946, 23 each of the five proceedings involved the issuance of a Statutory Demand by Australian and New Zealand Banking Group Limited, and in each, Mr Levick, the solicitor for the five companies, sought to have the Statutory Demand set aside, contending that the Corporations Law depends for its validity upon the Commonwealth Constitution and that constitution is itself invalid or has become so prior to the enactment of the Corporations Law. It was ordered that indemnity costs were to be paid as a joint and several liability by the relevant plaintiff in each case and by Mr Levick as its solicitor. The court noted:

“There are a long series of cases which have been brought either by Mr Levick, or by counsel (Mr Fitzgibbon) instructed by him, which in various forms have unsuccessfully sought to challenge the unconstitutionality of legislation including the Corporations Law. The common feature of those challenges has been the unsuccessful attempt to find some fundamental deficiency in either the process of executive approval of legislation by the relevant Governor or Governor-General, as for example going to the validity of their appointment, or otherwise by reference to the Constitution and the changed sovereignty of the Commonwealth. .. In several of these, cost orders were made on an indemnity basis and upon Mr Levick. They do not appear to have dented his enthusiasm to produce yet again the same unsuccessful argument, or recognised variants. This is notwithstanding the common thread running through those cases, that there was no arguable case ever put in support of each challenge. ..  Mr Levick added, when given that opportunity, that he was acting under instructions from his clients. However such instructions could not prevail over Mr Levick’s duty to the Court. That includes a duty not to waste the Court’s time with arguments that have self-evidently no prospects of success, more especially when the fate of analogous cases should have brought this home. Indeed there may come a time where the duty owed to the court, now both by client and legal adviser, may need to be reinforced by more effective sanctions. In fairness to other litigants, the court’s time should not be wastefully occupied in dealing with untenable submissions, more especially when this has now occurred with the same legal adviser on repeated occasions undeterred by indemnity cost orders against him.”

Click to access buckingham-gate-international-pty-ltd-mww-baker-pty-ltd-jasorc-pty-ltd-v-australia-new-zealand-banking-group-limited-2000-nswsc-946.pdf

Two of the plaintiffs in this case, John Robert Lamont and Martin William Webb Baker were subsequently sequestrated in bankruptcy in Australia & New Zealand Banking Group Limited v Baker and Lamont [2000] FCA 1812. 24 The Notice of Intention to Oppose filed by each Respondent has raised identical grounds of opposition in support of the contention that each Bankruptcy Notice was invalid and of no effect, with the consequence that the Petitions would therefore be without foundation. Wayne Levick & Associates again represented the parties, but was spared the costs in this proceeding.

In Suncorp Finance v Klego [2000] NSWSC 1073 25 Mr Levick was once again ordered to pay the costs of the plaintiffs in his clients case due to the same repetitive premises being contended. The court noted:

“This case has similarities to what has occurred in a number of other cases in which Mr Levick has acted.  There is now a considerable body of authority that supports the application now made in this case.  It is not necessary to embark upon a detailed history of what has happened in these particular proceedings. The history is indeed very long.  It suffices to mention that it is another of those cases in which proceedings have been defended by Mr Levick on behalf of his client on an untenable basis.  There have been many adjournments.  These adjournments and other conduct in the proceedings have had the effect of bringing about substantial delay and substantially increasing the costs that are now payable.”

Click to access suncorp-finance-v-klego-2000-nswsc-1073.pdf

In Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26 the Institute of Taxation Research was instead joined as a party to the proceedings and ordered to pay the costs of the respondent. It was recognised that Ian Henke was the controlling mind and Executive Director of the Institute of Taxation Research, and that he acted in an entrepreneurial way in soliciting “clients” by paying commissions to people who introduced “clients” to them. Arundel was at all material times controlled by Dr Brown, who had acted as an agent on behalf of the Institute of Taxation Research to find such clients. When asked how much he was paid, he replied “…it would have been probably in the order of about $12,000, something like that.” The court noted:

“I do not doubt that ITR is a money-making enterprise and that he stood to, and wished to gain from the promotion of proceedings of the kind which Arundel brought here.  It may well be that he also genuinely holds a conscientious belief that he and those gullible people who rely upon ITR are pursuing a cause for the benefit of other Australians.  Even if that be so, such a belief cannot justify or excuse the conduct of ITR, particularly as Mr Henke well understands the consequences of activities of the kind which ITR has promoted.”

See also Arundel Chiropractic v Deputy Com of Tax [2000] HCATrans 489 26

Click to access arundel-chiropractic-centre-pty-ltd-v-deputy-commissioner-of-taxation-2001-hca-26.pdf


Misleading and deceptive conduct

In Australian Competition and Consumer Commission v Institute of Taxation Research Pty Ltd & Wayne Levick [2001] FCA 1366 27 the Federal Court declared that the respondents, Institute of Taxation Research and Wayne Levick, engaged in misleading and deceptive conduct contravening the Trade Practices Act 1974, by making representations that there are arguments available to avoid payment of taxes and that by using their services one can make the payment of any Commonwealth or State imposed tax optional. The arguments were centered around the proposition that:

(a) the Australian legal system has no basis in law;
(b) the Australian Constitution is invalid;
(c) there is no basis in law for the exercise of the legislative powers of the state and federal Parliaments;
(d) there is no basis in law for the exercise of the executive powers of Australian governments; and
(e) Australian taxation legislation is invalid.

It was recognised that the Institute of Taxation Research and Wayne Levick had brought proceedings for about half of their 700 clients and had never won any of them on the grounds proposed. The case listed in Schedule 1 some of the cases where the arguments had been rejected:

Note: There are further cases with the same contentions that are not listed on this schedule, you can locate many on this website under the Tags “Sir Harry Gibbs letter“, “The Treaty of Versailles 1919” and “A break in sovereignty“.

The court ordered that the respondents be restrained from making representations, in trade or commerce, to any person, expressly or by implication, including representations made via the internet, to the effect that these conclusions of law are correct, and that arguments leading to these conclusions can be successfully advanced and relied upon by persons who acquire its services to avoid payment of taxes, or to defend or challenge proceedings for the recovery of taxes, unless at the same time the person is specifically informed that none of the conclusions of law have been held to be correct by any Australian Court, and the inevitable consequences of pursuing this action.

Further, the second respondent was restrained from making representations via the internet or for or on behalf of any corporation, in trade or commerce, to any person, expressly or by implication, to the effect that a former Justice of the High Court of Australia endorses or agrees with the conclusion of law that the Australian legal system has no basis in law and/or that the Australian Constitution is invalid. (See article on the Sir Harry Gibbs Letter)

The respondents were also ordered to send to each person or corporation who has since 10 March 2000 agreed to acquire taxation advice or consultancy services where such advice or services was based on, a letter informing them that:

letter-page-002

Click to access the-australian-competition-and-consumer-commission-v-institute-of-taxation-research-pty-ltd-2001-fca-1366.pdf

In Miller v Chapman [2001] FCA 105 the Institute of Taxation Research was again joined as a party to the proceeding, and ordered to pay the costs of the first respondent, the Deputy Commissioner of Taxation, who alleged that the Institute of Taxation Research was operating a “professional and smoothly run scam”.

“The Deputy Commissioner of Taxation submitted that I should further find that ITR, in its involvement with the applicant, demonstrated that it was “preying on the gullible” for its own benefit, namely the earning of fees from its clients by encouraging them to maintain what it knew or should have known were unmeritorious legal arguments.  He further submitted that that practice imposed considerable disadvantage upon its clients, both emotionally and economically.  I accept that, in the case of the applicant, his contract with ITR from about April 1999 took place when he was emotionally distressed for reasons unrelated to his taxation liability, and was also hard pressed to meet that liability.  His communications with ITR from time to time thereafter would have disclosed those circumstances to ITR.  He clearly became entirely dependent upon its advice, in a trusting and naive way.  Ultimately, when he learned that the matters he was claiming had been the subject of a number of other adverse judgments, he was clearly very disappointed and distressed.”

Click to access miller-v-chapman-2001-fca-105.pdf


Liquidated

The Institute of Taxation Research went into liquidation, after the Supreme Court of South Australia ordered that it be wound up, after a failure to meet a statutory demand for payment of $15 352.13, being the amount due in costs awarded against the Institute of Taxation Research in the matter of Deputy Commissioner of Taxation v Harry Miller. Bruce James Carter was appointed liquidator.

Through a notice of appeal signed by solicitors acting for the Institute of Taxation Research, the company sought to appeal against the decision that it be wound up. The Institute of Taxation Research opposed the making of the order on a number of grounds which included challenges to the validity of the Corporations Law and the validity of judicial appointments in South Australia.  Submissions were also directed to challenging both the appointments of the Commissioner of Taxation and a Deputy Commissioner of Taxation and their power to bring the proceedings.  The Judge in  rejected the various grounds of objection and it was subsequently dismissed. In Deputy Commissioner of Taxation v Institute of Taxation Research [2001] SASC 118 28 the Deputy Commissioner sought an order for costs on an indemnity basis against the solicitors acting for the Institute of Taxation Research, who signed and filed the notice of appeal.  In substance, the Deputy Commissioner argued that the solicitor involved, Mr Waters, acted in dereliction of his duty in not giving reasonable or proper attention to the relevant law and facts in circumstances where if such attention had been given it would have been apparent that there were no worthwhile prospects of success. The court ordered that Mr Waters pay the costs on an indemnity basis in respect of the notice of appeal from the date of the filing of that notice of appeal up to and including 30 March 2001.

Click to access deputy-commissioner-of-taxation-v-institute-of-taxation-research-2001-sasc-118.pdf

In Miller and Ors v Chapman and Ors [2001] HCATrans 187 29 the directors of the Institute of Taxation Research Lance Stewart Miller, Ian Sidney Henke and Robyn Diane Coningham, as plaintiffs, against Stephen Chapman, Michael Joseph Carmody and Bruce Carter, as defendants, with David Fitzgibbon as counsel.  The plaintiffs alleged the defendants had knowingly issued and pursued proceedings against the Institute of Taxation Research in courts wherein the sole source of judicial authority derives directly from defective instruments of authority issued on 14 February 1986 and subordinate documents issued under the legislative authority of the United Kingdom Parliament contrary to Section 10 of the Australia Act 1986. Further, it was sought that the court issue a certificate enabling the plaintiffs to place before Her Majesty in Council questions relating to defective Instruments of Authority used in Australia but issued under laws of the United Kingdom. By summons the defendants in the proceeding applied for an order that the statement of claim be struck out and the proceeding dismissed, or alternatively permanently stayed, on the grounds that it does not disclose any, or any reasonable, cause of action or is frivolous or vexatious.   The court concluded that the action brought by the plaintiffs in this Court is an abuse of process and that the defendants should have judgment.

In Miller and Ors v Chapman and Ors [2002] HCATrans 30 30 David Fitzgibbon again appeared for the applicants, as he done in all the following applications to the High Court.

In Henke v Carter [2002] FCA 252 the Institute of Taxation Research was ordered to produce all relevant documents to the examination. 31

Click to access henke-v-carter-2002-fca-252.pdf

In Henke, Ex parte – Re O’Loughlin and Ors [2002] HCATrans 101 32 and Henke, Ex parte – Re O’Loughlin and Ors [2002] HCATrans 104, 33 Ian Sidney Henke was again represented by David Fitzgibbon, in an application for a Writ of Mandamus and Prohibition against the Judge of the Federal Court O’Loughlin J. claiming the court had no jurisdiction to make the order.

Click to access henke-ex-parte-re-oloughlin-and-ors-2002-hcatrans-101.pdf

Click to access henke-ex-parte-re-oloughlin-and-ors-2002-hcatrans-104.pdf

Miller v Carmody and Ors [2002] HCATrans 2 34

Click to access miller-v-carmody-and-ors-2002-hcatrans-2.pdf

In Miller v Commonwealth Director of Public Prosecutions [2005] FCA 482 35 Mr Miller requested that charges be laid against Mr Carter and the four Finlaysons solicitors, complaining that the defendants had acted unlawfully by misusing documents during the course of the public examinations, the confidentiality of which was protected by various Commonwealth statutes. The Director had declined to prosecute the offences, so Mr Miller then determined to bring a private prosecution against the defendants. The court held that the application for judicial review of the Director’s decision to take over and discontinue the prosecution was both misconceived, and clearly foredoomed to fail, and it was summarily dismissed.

Click to access miller-v-commonwealth-director-of-public-prosecutions-2005-fca-482.pdf


Solicitor no more

Wayne Ronald Levick was admitted to practice as a legal practitioner on 18 December 1987. He practiced as a sole practitioner from 1995 and he held a practicing certificate until 28 November 2000 when was cancelled by the Council of the Law Society pursuant to section 37(1)(b) and (f) of the Legal Profession Act 1987, on the grounds he had failed to comply with the condition he enroll and successfully complete the Solicitors Trust Accounting Course, and that he contravened the provisions of Section 62 in that he failed to maintain trust accounting records that disclose the true position in relation to moneys received in respect of a number of companies, in a manner that enabled them to be conveniently and properly audited in respect of such companies. It also sought the appointment of a receiver to the trust property of the plaintiff.

In Levick v Law Society of New South Wales [2002] NSWSC 481 36 the plaintiff appealed against the cancellation of his practicing certificate and sought an order that it be quashed, and moved for a stay of the decision pending the hearing of his appeal and for an order that he be allowed to practice as a solicitor with the restriction that he not conduct or operate a trust account. Although the plaintiff had initially represented himself, he later retained the services of an experienced solicitor who continued to act on his behalf until 22 January 2001, when she gave notice that she was ceasing to act because she had given her client “certain advice, which advice he failed to accept”.

By 22 June 2001  a deficiency of $56,988.44 in the plaintiff’s trust account had been reported and remained unexplained, and the plaintiff had still not complied with a number of the orders that had been made, nor with certain of the undertakings that he had given. Instead, he gave notice under s 78B of the Judiciary Act 1903 to the Attorneys General of the Commonwealth, of each of the States and of the Australian Capital Territory and the Northern Territory, that he proposed to contend at the resumed hearing that the appointment of the person who was Governor of the State of New South Wales at the time of the enactment of the Act was “defective and void since the source of his authority derived directly from a Royal prerogative, which did not and does not exist in Australian legislation or law.” He also informed the Attorneys General that he proposed to argue that the Act was “defective and void” and that “the laws pertaining to the use of the Royal Sign Manual, under which the commission of appointment of the Governor of New South Wales is issued are solely domestic laws of the United Kingdom and therefore lie outside the jurisdictional authority of the courts of the State of New South Wales”. Further, it was contended that the Law Society did not have the power to cancel the plaintiff’s practicing certificate, that there was no power in the Law Society to issue practicing certificates to, or to licence legal practitioners to practice as, solicitors in New South Wales, because the Act is invalid.

The practicing certificate then held by the plaintiff was due to expire on 30 June 2001, and in the circumstances the existing stay was revoked and any further stay refused, with the plaintiff indicating that he did not propose to make application to the Law Society for the renewal or grant of a practicing certificate anyway. When the matter came on for final hearing on 3 December 2001 the plaintiff sought a further adjournment of his appeal, which was refused.

In the course of the argument, the plaintiff contended that as from 1986 no statutes passed by the New South Wales Parliament were valid. Furthermore, he contended that as at the date of the Australia Act 1986, any commission of the Governor that may then have been in force was revoked and indeed, at one stage it was argued that the State of New South Wales, as well as the other States of the Commonwealth, had ceased to exist. When pressed on this, the plaintiff contended that since the signing of the Treaty of Versailles in 1919, the Commonwealth of Australia as constituted under the Commonwealth Constitution had ceased to exist, that there were no States of the Commonwealth and that there were no valid laws in Australia, other than perhaps the common law of Australia.

The court noted  that the submissions were essentially the same as some advanced by the plaintiff in a matter in which he appeared as solicitor for the parties, namely Matchett v Deputy Commissioner of Taxation (two cases) and Lattimore v Deputy Commissioner of Taxation (2000) 158 FLR 171. His submissions in that case were rejected. Like arguments were also rejected by Callinan J in Dooney v Henry (2000) 74 ALJR 1289. The court concluded that:

  • 1. The Legal Profession Act 1987 is a valid enactment of the legislature of New South Wales and is, and at all material times has been, an effective law of the State.
  • 2. The notice given by the defendant to the plaintiff on 28 November 2000 was authorised by the Legal Profession Act 1987.
  • 3. The grounds included in such notice have been established.
  • 4. There is no basis on which the Court should set aside or otherwise interfere with such notice.
  • 5. The plaintiff no longer has a practicing certificate under the Legal Profession Act, and is not entitled to practise as a solicitor within the State of New South Wales.
  • 6. For the reasons set out above, I am of opinion that the summons should be dismissed with costs.

Click to access levick-v-law-society-of-new-south-wales-2002-nswsc-481.pdf


Conspiracy to defraud

In R v Huston; R v Fox; R v Henke [2011] QCA 349 37 the applicants, including two of the former directors of the Institute of Taxation Research, Ian Sidney Henke and Lance Stewart Miller, appealed their convictions for conspiracy to defraud the Commonwealth. Wayne Levick was also involved in the scheme.

“The appellants stood trial on an indictment which charged: “Between about the first day of July 1999 and about the twenty-third day of May 2001 at Brisbane … and elsewhere Robin David Huston, Ian Sidney Henke, Brian Francis Fox, Clarence Lawry Marae, Philip Bruce Northam, and Lance Stewart Miller did conspire together to defraud the Commonwealth.” Particulars of the conspiracy were that the appellants, and others, “… conspired with each other to devise, promote and implement a scheme, by the use of dishonest means as set out in the accompanying overt acts, to strip companies of their assets so that the companies were ultimately unable to meet their obligations to the Australian Taxation Office, thereby putting at risk the revenue of the Commonwealth.”

On these charges, David Fitzgibbon appeared for 2 years for Ian Henke in the Brisbane Magistrates Court and the Supreme Court of Queensland, but at the time of this appeal Mr Fitzgibbon was the respondent in disciplinary proceedings in his home State brought by the New South Wales Bar Association,  so he was unable to appear. (See article on David Fitzgibbon) The court held that none of the grounds of appeal relied on by Henke had been made out, and the appeal against the conviction was dismissed.

Click to access r-v-huston-r-v-fox-r-v-henke-2011-qca-349.pdf

The Institute of Taxation Research was dissolved by 2002, but in 2004, David Fitzgibbon took it one step further, bringing a case before the British High Court regarding Australia, in Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch). The case was dismissed, first by Master Bowman, and on appeal by Justice Lightman, both cases referring to earlier jurisprudence, that the British Courts had no jurisdiction over Australian affairs.

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