Dooney v Henry

[2000] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S33 of 1999

B e t w e e n -

GEORGE GREER

Applicant

and

DEPUTY COMMISSIONER OF TAXATION

Respondent

Application to set aside decision of Gleeson CJ

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 26 APRIL 2000, AT 10.00 AM

Copyright in the High Court of Australia

MR D.C. FITZGIBBON:   May it please the Court, I appear for Mr Greer.  (instructed by W. Levick & Associates)

MR R.S. QUINN:   I appear for the Deputy Commissioner.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Fitzgibbon.

MR FITZGIBBON:   Your Honour, the matter, despite some haste - I tried to have a set of papers placed in front of the Court by the extended deadline of 4 pm on Thursday.  I apologise for that, but we only received notice of it in fact the very date we sought an extension of time - my client did - and he saw us on the Monday and hence the reason for that. 

Your Honour, in relation to the outline of submissions as to cases, I note, having looked through my friend's outline of submissions, that the cases I would have cited in my case are almost identical to the ones that he has.  So apart from that part where we depart quite markedly at the end as to the merits of the appeal, in fact we, as far as case law is concerned, we would be on the same position as such as to the general principles.

HIS HONOUR:   Yes.

MR FITZGIBBON:   Just as to ‑ ‑ ‑

HIS HONOUR:   What is the special leave ground that is relied on in this particular case, because there are two sets of documents before me.  What is it that is relied on?

MR FITZGIBBON:   As I see it, the earlier appeal notice that was filed by the client, and that dealt with the issue of him being an aggrieved person under section 14ZZ. As I see it that still would remain as part of the appeal. But in addition to that there are those additional grounds as to the validity of the signing of the 1936 Income Tax Assessment Act and there are two other supplementary grounds also contained in that ‑ ‑ ‑

HIS HONOUR:   These are the Dietrich grounds?

MR FITZGIBBON:   Yes.  It is not strictly a Dietrich Case, of course your Honour would know that, but it is, in broad principle, what he has raised there as an issue of what one would term fairness.  I put that very broadly indeed.

HIS HONOUR:   Yes, I understand.

MR FITZGIBBON:   Thank you.  Your Honour, perhaps if I can commence with this position.  As I understand the time line to be, and I note that my friends ‑ ‑ ‑

HIS HONOUR:   Perhaps I can - first of all, Justice Burchett's reasons have not yet been filed.  I understand an index has been printed and would be available today.

MR FITZGIBBON:   That is correct, your Honour.

HIS HONOUR:   If I was to extend the time, the books would have to be printed within 30 days and the matter could be listed for hearing on 4 August or perhaps get into the list for 4 August.  Having regard to that, you are asking me now to extend a discretion in respect of an application which is deemed to have been abandoned.

MR FITZGIBBON:   Yes.

HIS HONOUR:   The question is why should I extend the time, having regard to these factors which I will now put to you.  First of all, none of these points were taken before Justice Burchett or before the Full Court.  That, in itself, would indicate a very slight, if not most remote, prospect of this Court even considering those grounds.  The second point is the arguability of the grounds.  The constitutional point has been described by Justice Hill, a very experienced judge in this field, as nonsense.  It does not seem to me to have any real prospects of success.  The 14ZZ ground not taken.  I am not quite sure I understand how it fits in at the moment.  The fairness ground, again another ground I would have thought had no reasonable prospects of success.  But why should I put the Commonwealth to the expense of defending the special leave application?  Why should your client be put to the expense of filing and printing a book?  I do not know whether this is done pro bono or not, but assuming he is paying for legal costs, why should he be put to the expense of that and why should a litigant be deprived of a hearing on the 4th - that is another litigant in the special list ‑ be deprived of a hearing because your matter is in here, when the matter seems to me to be really bordering on hopeless?

MR FITZGIBBON:   Yes.  Your Honour, if I can commence to answer by this.  Dealing first of all with the ‑ ‑ ‑

HIS HONOUR:   Mr Fitzgibbon, it is both public and private interests seem to me to be affected.  First of all, there is the question of this Court's time being taken up by an application which gets very close to being frivolous, if I might say so.  Secondly, there is the private interest both of the Commonwealth, their expense, also your client.  He would have to go to the expense of printing books and being legally represented, I assume.  I do not know.  But assuming even if it is done pro bono, there would certainly be outgoings.  Now, why, in those circumstances, what can you say that should persuade me to exercise a discretion, given the factors that point against it?

MR FITZGIBBON:   Your Honour, can I deal very quickly with the facts which I say are foundational.  I think it is important, your Honour, that although the Chief Justice deemed the matter to be abandoned under 69A rule 13 due to the failure of the applicant to file the documents, it is important to realise what had happened prior to that.  In effect, there was a letter - and I will deal with these quickly because they are common between the parties - a letter, 4 August 1999, which set out 69A rule 13 and sought that the argument of summary be filed by ‑ ‑ ‑

HIS HONOUR:   You need not worry about those.  I would be quite prepared to extend the time if I thought this case had any substance  So would you deal with that.

MR FITZGIBBON:   Thank you.  With the substance issue?

HIS HONOUR:   Yes.  Given the fact that none of these points were taken before Justice Burchett or before the Full Court, and so the prospects of this Court granting you leave to appeal with respect to such matters being ordinarily remote, quite apart from the individual merits of the point.

MR FITZGIBBON:   Yes, all right.  Your Honour, I hear that as a proposition, but I think it is important to deal with what I see as the merits of the case.  In essence, there never has been a hearing.  Despite whatever has happened, there never really has been a hearing where the substantive issue, when my client was assessed in prison for a very very large sum of money, based on unsupported hearsay, innuendo and all the other things that go with it, so ‑ ‑ ‑

HIS HONOUR:   The fact of the matter is that the matter came before the AAT as long ago as 1994, 1995.  By consent, in November 1995, the application for review was dismissed.  Then your client sought reinstatement.  It was refused.

MR FITZGIBBON:   I could not deny a long and tumultuous history.  But what I am really saying is, despite all that, at the end of the day, your Honour, there has never been a hearing as such.

HIS HONOUR:   But a hearing of what?

MR FITZGIBBON:   A hearing as to whether this man really owes the $1.3 million.

HIS HONOUR:   But this Court is not going to determine that issue. 

MR FITZGIBBON:   No, that is true.  But, nevertheless, it never has been a matter and what happened, according to my instructions, is that when he did get to the - perhaps to the Appeal Court of the Federal Court, he really then is in the position where he is unrepresented as such.  Hence, that I believe is, in part, an answer to why some of these issues, including the Income Tax ‑ ‑ ‑

HIS HONOUR:   It is not an answer to why this Court should now allow these issues to be raised, they not having been raised in the courts below.  We do not sit here to give advisory opinions.

MR FITZGIBBON:   I agree with that, your Honour.  I would be the first to ‑ I would not press it on your Honour, but in fact that is one of the major background arguments, I say, that the matter should ‑ ‑ ‑

HIS HONOUR:   You can take it as accepted that the points were not taken because the client did not know about them.

MR FITZGIBBON:   That is right.

HIS HONOUR:   The first question is, that being so, why should this Court grant leave in respect of them?

MR FITZGIBBON:   The answer to that, your Honour, is this.  Despite Mr Justice Hill's findings - and he strongly disagreed, you might gather, on that, and that, of course, is subject to other action ‑ the fact is that the issue of what is termed the interregnum is in fact a very straightforward issue of a constitutional nature.  I mean ‑ ‑ ‑

HIS HONOUR:   Yes, and it has a straightforward answer.

MR FITZGIBBON:   It has a straightforward answer, so it is not a matter that requires great reams of evidence or anything like that.  It is in fact nothing more or less than an issue:  did the Governor‑General, when Lord Gowrie appendaged his signature to that, did he sign in the name - and forgive me, I mean no disrespect ‑ the dead King, the King yet to be crowned and, with the greatest of respect to Justice Hill, the English constitutional law is heavily against him on that issue, with respect, or the King to come.  So, on that issue - and that is foundational, of course, to each and every ‑ ‑ ‑

HIS HONOUR:   Mr Fitzgibbon, I had better tell you this.  You do not get more time to argue an application for an extension of time than you get for a special leave application.

MR FITZGIBBON:   I am sorry, I will be quick for that reason.  So, your Honour, I say that that is capable of, despite what Justice Hill says, resolution on quite a narrow base and it is a constitutional issue which affects that issue.  The other two ancillary issues ‑ ‑ ‑

HIS HONOUR:   But there are all sorts of other issues that will arise which does not make the case a suitable vehicle.  Let me point out some of them.  The first is the Act has been amended on numerous occasions since 1938.

MR FITZGIBBON:   True.

HIS HONOUR:   The question is whether or not, even assuming that the Act had not been properly proclaimed, whether or not it was still in force by reason of the subsequent amendments.  Further, another issue that would have to be considered is the question of the de facto officer's doctrine.

MR FITZGIBBON:   The court, of course, considered that in Bond's Case and looked at it with precision.  We have never - and I would stand to be corrected - ever adopted the de facto officer's argument.  It has been adopted in Canada, the United States, but never ‑ ‑ ‑

HIS HONOUR:   No, I appreciate that.

MR FITZGIBBON:   So, your Honour, the demands ‑ ‑ ‑

HIS HONOUR:   But these are all issues that have to be considered.

MR FITZGIBBON:   Perhaps I can answer it very quickly.  The demands in this case were made solely, and solely on the basis of the 1936 Act.  Now, two other matters, your Honour, and I am bearing in mind the time factor.  I have raised in there perhaps rather cheekily the - I put my head on the block, so to speak - the fact that it is an issue, in my submission, that this man should be prosecuted by the State, dealt with by the State, and your Honour will know that I have raised in there, and it is part of the appeal, that then, of course, he is denied the issue of legal aid.  That is a lesser issue.  But equally coming into that is something that, in my submission, is important, and that is the importance, of course, of this man's rights under the UN Charter.

HIS HONOUR:   He has no rights under the UN Charter because ‑ ‑ ‑

MR FITZGIBBON:   I know the Court's position, but nevertheless, I believe that it is a matter that is going to become increasingly a matter of public perception and interest.  Indeed, I know what the Court says and I have been against it so often, but what I am really saying, your Honour, is this, that in fact, despite the apparent problems with it, they are matters.

The only other matter I would raise for your Honour is this.  Your Honour would be aware of your brother Justice Gummow's decision in the Mystic Crystals leave application, I take it.

HIS HONOUR:   No, I am not.

MR FITZGIBBON:   May I then take the liberty of handing to the Court ‑ it is printed off the Internet.  That is the only place available.  In particular, on page 3 of the document, his Honour, at about point 8 takes the view that if there is an application somewhat similar to what we are dealing with here it may far be better dealt with in a leave application, and that comes into the Ebert doctrine.

HIS HONOUR:   Yes, but there is a world of difference.  I mean, you are out of time.  You are now seeking a privilege.

MR FITZGIBBON:   Yes.

HIS HONOUR:   You have to show positive reasons why time should be extended, having regard to the issues of private interests and public interests that are involved in the case.

MR FITZGIBBON:   Your Honour, all I can say is this, that on the time frame - and I know your Honour is aware of this, but I do not know whether your Honour is as aware of the tightness of the time frame involved here, because what happened was a letter was sent.  He complied with that.  Two days later a letter was sent which he says he never received, and that was the letter involving - because on the 15th - on 18 October, in fact, the Crown filed their submissions and ‑ ‑ ‑

HIS HONOUR:   When you talk about, in effect, technicalities, the fact is that Justice Burchett's reasons have not been filed to this day.

MR FITZGIBBON:   I think there has been a seeking - my instructions are my client has sought those but I do not know whether he has been able to obtain them.

HIS HONOUR:   They must have been before the Full Court in the Federal Court to begin with.

MR FITZGIBBON:   Yes.

HIS HONOUR:   So that argument hardly washes. 

MR FITZGIBBON:   That, as I say, appears to be ‑ ‑ ‑

HIS HONOUR:   What is more, they are on the Internet.  I have them.

MR FITZGIBBON:   I doubt my client has the Internet, but that is no excuse.  But, your Honour, that is apparently the only outstanding document as such and, as I say, the schedule was extremely tight and my client, in fact ‑ ‑ ‑

HIS HONOUR:   It is tight only of his own making.  He puts this story forward that his mother has a private telephone number and he cannot be contacted on it.  Justice Kirby, on the previous occasion, spoke of that as trifling with the Court, and I would agree with those remarks.  If he wants to be a litigant in this Court, then he has to comply with the rules and give a proper telephone number where he can be contacted.

MR FITZGIBBON:   I accept that.  But all I urge on your Honour is this, that the set of letters were such that when he arrived in this Court in front of the Chief Justice, it was his thought, and his thought alone, that he was to receive further directions and the matter would be set down.  So really, it is that technicality we are dealing with.

HIS HONOUR:   Yes.

MR FITZGIBBON:   Unless there is anything further.

HIS HONOUR:   Yes, thank you very much, Mr Fitzgibbon.  What do you say, Mr Quinn?

MR QUINN:   Your Honour, I would adopt most of the remarks which you have made but, again, it is a question of whether, in the exercise of the discretion under the Rules, this litigant should be let in and the submissions which I have filed with the Court advert to the question of merits.  In my respectful submission, this case has no merits at all.  Justice Hill has dealt with, firstly, the interregnum argument.  I believe that the decision there is correct.  The other matters - the comment which Justice Hill made about that argument was that it was - I think it was untenable and nonsense. 

There is the question that these matters were not raised before any court previously.  The parameter which the applicant on the special leave must show is a question of public importance.  In my submission, these matters do not even approach that issue.  There is the other question of the right to legal representation.  There is authority that the Dietrich principle does not apply to bankruptcy proceedings.  The Dietrich principle is a manifestation of the procedural fairness but, again, given the situation, this was a simple exercise of discretion by Justice Burchett as to whether to make a sequestration order in the circumstances and Justice Burchett was well aware of the delay which had been occasioned on previous times the matters were before the court.  That has been the subject of comment by Justice Sackville.  In these circumstances, it would not be an appropriate exercise of discretion for the Court to allow the applicant in. 

I do not think I can put any other matters to your Honour, apart from what is it ‑ ‑ ‑

HIS HONOUR:   What about the 14ZZ point?  What do you say about that?

MR QUINN:   That was a situation where the question whether the applicant was a person dissatisfied with an objection at the time Justice Burchett heard the matter, the proceedings had been dismissed.  Justice Burchett did consider the fact that there was a - at page 5,191 of the judgment in 98 ATC, Justice Burchett was aware that there was an appeal to the Federal Court in respect of the decision to dismiss the proceedings in the AAT.  He was also aware that there was a further application, this would be the third application in the AAT, to lodge an appeal in the AAT.  His comment in respect of those was that:

The argument for the debtor requires me to pile possibility on possibility.  If, as is possible, the appeal to this court, or the application to reinstate the matter in the Administrative Appeals Tribunal, should succeed, so that there would again be a viable application to that Tribunal to review the disallowance of the debtor's objections, there would then be a  further possibility that such a proceeding in the Administrative Appeals Tribunal could succeed; although, accepting that there are genuine grounds to challenge the quantum of the assessments, there are not genuine grounds, it seems clear, to challenge the full liability.

It is a case in which repeated delays, and almost constant irresolution as to the pursuit of attempts to appeal against the assessments, have continued over a lengthy period.  These matters must either undermine the genuineness of any appeal or, at the least, provide strong reasons in themselves why the court should not now, at the eleventh hour, withhold its hand, when the Deputy Commissioner seeks the remedies provided under the Bankruptcy Act.

This was a case where his Honour was of the view that the principle in Ahern should give way.  His Honour was quite firm in that view.  He said:

if there is ever a case in which the general rule laid down in
Ahern and in Adamopoulos should not be applied, as both of those Full Court decisions assert there is, then this matter must be an example of such a case.

At the end of the day, the Commissioner or the State is a creditor and even as late as last week, there have still been proceedings to restrain the Official Receiver from registering properties in the name of the bankrupt in the Official Receiver's name.  There was an injunction sought last week.

HIS HONOUR:   The point has just suddenly occurred to me.  Is there any problem about the applicant's standing for this application?  Probably not, I suppose.

MR QUINN:   I do not believe so.  I have considered that point and I cannot see that there is a legitimate point.  But unless there is anything else, your Honour, those are my submissions.

HIS HONOUR:   Thank you, Mr Quinn.  Anything is reply, Mr Fitzgibbon?

MR FITZGIBBON:   Yes, thank you, your Honour.  Your Honour, I think it is important to remind your Honour very quickly that when in fact my client appeared before Justice Burchett he went on from there in front of the Full Court and he was not legally represented before the Full Court.  Part of that first application for leave said this, in brief.  There was the 14ZZ issue, but there was also the issue, of course, that though he was legally unrepresented, not through choice, the court was made aware that the appellant's pro bono application for assistance was still being considered by the Bar Association and that was the case.  I do not think anyone doubts from that.  For that reason, your Honour, of course, when he stood before the Full Court that was the position on that and, as he rightly points out in his instructions to me, the delay here was a technical delay and nothing more, and he certainly came in front of the Chief Justice on that day fully expecting to in fact see the final directions on them because that is what the document says.  He says "further orders".  Thank you, your Honour.

HIS HONOUR:   Thank you.

This is an application to extend the time under Order 60 rule 6 of the High Court Rules for complying with the rules relating to the special leave procedure.  The jurisdiction to extend time is given for the sole purpose of enabling this Court to do justice between the parties to the litigation.  In order to determine whether or not the granting of an extension of time would work an injustice it is necessary, as I said in Gallo v Dawson 93 ALR 479, to consider the conduct of the parties, the history of the proceedings, the nature of the litigation and the consequences for the parties regarding a grant or refusal of an application for extension of time. Most importantly for present purposes, however, as I pointed out in Gallo, is the prospect of the applicant succeeding in the appeal or, as in this case, the special leave application.  In Jackamarra v Krakouer 195 CLR 516 Chief Justice Brennan and I pointed out that if an appeal has no merits, then the Court should not extend time. That principle applies to the case of special leave applications.

The applicant in the special leave application seeks to raise three broad issues.  None of these issues were argued in any of the courts below.  That seems to me a formidable hurdle to the applicant being granted special leave to appeal in respect of matters that were not argued in any of the courts below, with the result that this Court is deprived of the assistance of the judgments of those courts. 

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. This argument is based on the proposition that, at the time when Lord Gowrie gave his assent to the Income Tax Assessment Act 1936, 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 Income Tax Assessment Act.  This argument was raised in Deputy Commissioner of Taxation v Levick 4 ATR 621. Justice Hill rejected the argument and, in my view, the reasons his Honour gave for rejecting it were well taken.

The third point is that implied fairness provisions of Chapter III of the Constitution required that the applicant be given legal assistance for his case in the Federal Court. The precise nature of the argument is not easy to follow. But it is a point , in my view, without any substance. In so far as it seeks to invoke the decision of this Court in Dietrich v The Queen as an analogue, it is clear that Dietrich has no application outside the criminal field and there is no reason for extending that judgment to civil litigation.  In my view, the fairness point based on Chapter III has no prospect of success.

The first point that is relied on in the special leave application is that the courts below failed to fully recognise that the applicant was a "person dissatisfied" within the meaning of section 14ZZ of the Taxation Administration Act 1953. As I have pointed out, this matter was not raised in argument in the courts below. A bankrupt debtor ordinarily lacks standing to apply to the Tribunal for review of an objection decision because the bankrupt has been divested of liability for the taxation debt. In such case, it is the trustee of the estate which has the standing. There may be an argument as to whether or not the applicant had standing or whether the court should have recognised he was a person dissatisfied within the meaning of section 14ZZ. Where it would lead to in this case, if successful, is, to my mind, far from clear. But the point was never raised in the Federal Court and in my view this Court would not allow the point to be raised on a special leave application, it not having been taken in either court below.

For those reasons, I refuse the application for extension of time.  I might add that the case is one in which it seems to me that both the public and private interest require that it should be dismissed.  The Court's time would be taken up by hearing a special leave application which has no real prospect of succeeding.  In addition, looking at it from a private interest point of view, the respondent to this application would be put to the expense of briefing counsel on a special leave application with, I would imagine, little prospects of recovering the costs, having regard to the bankrupt status of the applicant.  From the applicant's own point of view, to now grant him leave to extend the time for complying with the special leave procedures would mean that he would be put to the expense of preparing an application book and, depending upon whether or not his advisers are doing the matter pro bono, incurring legal expense.  In all the circumstances, it seems to me that the interests of justice require that this application be dismissed.

MR QUINN:   I would seek costs, your Honour.

HIS HONOUR:   There is nothing you can say about that?

MR FITZGIBBON:   There is nothing I can say, your Honour, to it, thank you.

HIS HONOUR:   Thank you, Mr Fitzgibbon.  The application is dismissed with costs.

AT 10.41 AM THE MATTER WAS CONCLUDED