Matchett & Lattimore v Deputy Commissioner of Taxation [2000] NSWSC 975; 45 ATR 541

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.”

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