Joossee v Deputy Commissioner of Taxation

[2002] VSCA 47

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8385 of 2001

WOLTER JOOSSÉ
	Applicant
v.
DEPUTY COMMISSIONER OF TAXATION	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2002
DATE OF JUDGMENT:	12 April 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 47

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CONSTITUTIONAL LAW - Victorian Constitution - Collateral attacks on validity of The Constitution Act (1855) and Constitution Act 1975 rejected.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms H. Riley	Australian Government Solicitor

BATT, J.A.:

1. The Court has before it an application by Wolter Joosse under s.74(2D) of the County Court Act 1958 for leave to appeal from an order made by His Honour Judge Holt in the County Court Practice Court on 5 November 2001 dismissing the applicant's application to set aside a judgment entered against him in default of a notice of defence and, presumably, an application for the continuation of the stay granted by this Court on 7 December last.

1. The application for leave to appeal has been before the Court on two previous occasions - 7 December and 22 February last - but each time it was adjourned without any substantive hearing. After considerable argument this morning, it transpired that Mr Joossé seeks today an adjournment of his application until two questions raised by him in an application he has filed today, he tells us, in the High Court District Registry, for removal of this cause into the High Court of Australia under s.40 of the Judiciary Act 1903 (Cth), have been determined. He said an adjournment was necessary or desirable because, amongst other things, the Court of Appeal's existence and jurisdiction were in question and it would be unseemly (that was not his word, but that was the essence of it) for us to proceed in such circumstances. Necessarily the proposed adjournment would be of indefinite duration, and there is, of course, no certainty that the High Court will remove the cause. I would add that the pendency of the removal application without an order for removal having yet been made does not, as I understand it, preclude this Court from hearing and determining Mr Joossé's application for leave, in contradistinction to what was the position in former times as soon as an inter se question arose.

1. The two points raised by the removal application, and, I think it fair to say, already raised in this application in this Court by Mr Joossé, are:

(1)That the Court of Appeal has, and the County Court had, no jurisdiction to entertain the action, in the case of the County Court, or, in the case of this Court, an appeal therefrom or, I think Mr Joossé asserted, even his application for leave to appeal, because of the terms of s.75(iii) of the Commonwealth of Australia Constitution.

(2)That the Constitution Act 1975 of Victoria, by which the Supreme Court of Victoria was continued and, after amendment, the Court of Appeal Division created, was not validly enacted, so that, amongst other things, the Court of Appeal does not lawfully exist and cannot lawfully hear the application and any appeal.

In order to determine whether the adjournment, which is opposed, should be granted, we have heard argument on these two points. 

1. The first point is an idle one. It flies in the face of s.77(iii) of the Constitution and s.39(2) and, if necessary, s.39A of the Judiciary Act, to which may be added s.221R(1) of the Income Tax Assessment Act 1936 (Cth). The action and this application are, contrary to Mr Joossé's submission, not within s.38(c) of the Judiciary Act.

1. In support of the second point, Mr Joossé raised at least three sub-points.  First, he claimed that the Second and Third Readings of the Bill for the Constitution Act 1975 had to be carried by an absolute majority of the whole number of the Members of the Legislative Council and of the Legislative Assembly respectively, and he said that that had not been done. He said that he relied on the voting in the Legislative Assembly and the Legislative Council on the Second Reading Speech only. His case regarding the Council is hopeless, even on the figures to which he took us, but there was a glimmer of hope for him with the Legislative Assembly, for page 4968 of the Assembly Hansard for 15 April 1975 showed 37 ayes and he told us, though I do not regard this as established, that there were 74 members in all. However, Ms Riley has satisfied me, by production of a certified copy of the Bill as passed by both Houses, being Exhibit 2 before us, and by production of the Votes and Records of both Houses, being Exhibits 3, 4 and 5 before us, and reliance on s.60 of the Evidence Act 1958, that the Second and Third Reading Speeches were carried by the required absolute majorities, those majorities being required by s.LX of The Constitution Act, which is a schedule to the Imperial Act of 1855. So far as amendments made by the Legislative Council and agreed to by the Legislative Assembly are concerned, they did not require absolute majorities: ss. LX and LXI of The Constitution Act and McDonald v. Cain[1].

   [1][1953] V.L.R. 411 at 421, 422 and 423.

1. The second sub-point was that the 1975 Bill had been assented to by the Governor of Victoria at the time, Sir Henry Winneke, and not, as required by s.LX of The Constitution Act, by Her Majesty Queen Elizabeth the Second. But the proclamation in the Government Gazette of 19 November 1975 (Exhibit 1), particularly when taken with s.50 of the Evidence Act 1958, is an answer to that. The copy of the Bill for the Act sent from the United Kingdom to Mr Joossé, or a colleague of his assisting him, rather than supporting his argument, is quite against it, for it shows that the Governor reserved the Bill for the signification of Her Majesty's pleasure.

1. The third sub-point was said to be that Her Majesty's assent to the 1975 Bill was not approved by the Parliament at Westminster.  The short answer to that is that a mere assent did not require Parliamentary approval.

1. Mr Joossé, in reply, exposed two further points which, in fairness, he had hinted at in his opening submissions. They related to the 1855 Constitution. Where, if they were right, they would lead, I do not pause to investigate. He said that the 1855 legislation had resulted from an unlawful alteration by the Colonial Secretary of a Bill which had been sent to London from Victoria for enactment at Westminster. But what was sent was only a Bill, and as such it could not prohibit alteration of its terms or compel a special mode of altering them. Indeed, the Colony of Victoria could not inhibit or circumscribe the Imperial Parliament. Further, the Bill as altered was in fact enacted[2].  Mr Joossé also said that the 1855 Bill had not been signed by Queen Victoria - or, at any rate, the copy which he said had been returned to Australia had not been so signed.  It is far too late in the day to take a point like that, in my view, when the Act was acted upon for a century and a quarter and then repealed and, indeed, was accepted in Court as valid in, for instance, McDonald v. Cain.  The submission is inconsistent with the Preamble to the Constitution Act 1975.

   [2]Its history is summarised in the Preamble to the Constitution Act 1975.

1. In my opinion, therefore, neither of the two points which Mr Joossé agitated is a good one.  Rather, they are utterly without merit.  Those concerned for the integrity of our democratic institutions can only view the collateral attack on them constituted by the second point with dismay, if not repugnance.

1. There are strong discretionary factors pointing against the grant of an adjournment.  There seems to me no reason why this hearing should await whatever the High Court might say on the two questions, assuming it entertains the application for removal or any appeal that might be brought to it by special leave if this Court should give any decision on the leave application adverse to Mr Joossé.  If this Court in proceeding to hear the latter application should err, that can be corrected by the High Court.  Further, Mr Joossé has advanced no submission that he will be prejudiced by the refusal of an adjournment.  Moreover, there is an affirmative reason why an adjournment should be refused.  This is the third day that this application has been in the list on a Friday.  Five judges have already had to read the papers, which grew in length each time.  I have had to read them twice.  This is a strain on scarce judicial resources.  The list on Fridays is now almost invariably very heavy.  The Court is entitled to keep the cases in its list moving if they do not appear to be going anywhere.  Further, the respondent Deputy Commissioner of Taxation is entitled to know where she stands as regards the leave application, so that she may execute upon the judgment if leave is refused.

1. For these reasons I would refuse the adjournment sought.

BUCHANAN, J.A.:  I agree.

(Discussion ensued.)

BATT, J.A.: 

1. Mr Joossé has drawn my attention to the fact that, in seeking to cover the various matters he raised, I overlooked one, which might be taken as a fourth attack on the 1975 Constitution. This was that the Victorian Parliament could not repeal an Act of the United Kingdom Parliament because that would violate the Colonial Laws Validity Act. However, during argument I pointed out that s.LX of The Constitutiton Act expressly provided that the legislature of Victoria should have full power and authority to repeal all or any of the provisions of that Constitution and to substitute others in lieu thereof. I understood, during argument, Mr Joossé to accept that, and he countered, as my note shows, by saying, "Yes, but the repealing Act must be reserved for Her Majesty's pleasure". That is a point that I have already dealt with.

BUCHANAN, J.A.:  I agree.

BATT, J.A.:  The application for adjournment is refused.

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