Poonon Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1121

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 an 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 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.