Dooney v Henry [2000] HCA 44 

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.”

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