G & M Aldridge Pty Ltd v Walsh

HIGH COURT OF AUSTRALIA

GUMMOW J

McKEWINS HAIRDRESSING AND
BEAUTY SUPPLIES PTY LTD (IN LIQUIDATION)                 APPLICANT

AND

DEPUTY COMMISSIONER OF TAXATION               FIRST RESPONDENT

WAYNE LEVICK  SECOND RESPONDENT

McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation
[2000] HCA 27
5 May 2000
S123/1999

ORDER

1. The notice of motion filed 1 May 2000 is dismissed.

1. The document described as a notice of discontinuance, which was filed on 1 May 2000, is set aside.

1. The notice of motion for removal filed on 29 July 1999 is amended to add Wayne Levick as second respondent but is then dismissed.

1. The second respondent, Mr Levick, is to bear the costs of the Deputy Commissioner of Taxation of and incidental to his two motions and of Mr Levick's motion filed on 1 May 2000.  Such costs are to be taxed on the basis, in each case, that the costs include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the Deputy Commissioner is completely indemnified by Mr Levick for the Deputy Commissioner's costs.

1. Certify that these motions were a matter proper for the attendance of counsel in chambers.

2.

1. Otherwise dismiss the Deputy Commissioner's motions filed on 2 February 2000 and 27 April 2000.

Representation:

No appearance for McKewins Hairdressing and Beauty Supplies Pty Ltd (In Liquidation)

R G Orr QC with G L Ebbeck for the first respondent (instructed by Australian Government Solicitor)

D C Fitzgibbon for the second respondent (instructed by Wayne Levick & Associates)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation

High Court – Practice and procedure – Removal of causes – Constitutional arguments raised in application untenable – Application made on instructions of a third party to the litigation – Solicitor's duties to Court.

Constitutional law – Office of Governor-General – Validity of commission and appointment of.

Practice and procedure – Joinder of solicitor – Costs – Award of costs against solicitor – Award of costs on indemnity basis – Discontinuance under O 27 r 1(1) of High Court Rules – Notice thereunder purportedly given by a person other than the applicant on record.

Words and phrases – "indemnity costs".

Constitution, ss 2, 4, 58.
Corporations Law, s 471A.
Judiciary Act 1903 (Cth), ss 40, 78B.
High Court Rules, O 27 r 1(1).

1. GUMMOW J.   On 19 September 1999, the Supreme Court of New South Wales ordered that McKewins Hairdressing and Beauty Supplies Pty Ltd ("McKewins") be wound up on the application of the Deputy Commissioner of Taxation.  Mr Warren Pantzer was appointed liquidator.

2. Earlier, on 29 July 1999, there had been filed in this Court two documents. The first is an application in the name of McKewins and signed by a solicitor, Mr Wayne Levick, "on behalf of the [a]pplicant" seeking removal of part of…