Skyring v Commissioner of Taxation

[1991] HCATrans 314

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B24 of 1991

B e t w e e n -

ALAN GEORGE SKYRING

Applicant

and

COMMISSIONER OF TAXATION

Respondent

Application for leave

to appeal

BRENNAN J GAUDRON J MCHUGH J

Skyring(l2) 1 6/11/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 NOVEMBER 1991, AT 11.48 AM

Copyright in the High Court of Australia

MR A.G. SKYRING:  I appear in person, if it please the

Court.

MR c.M. ERSKINE:  May it please the Court, in this matter I

appear for the respondent. (instructed by the

Australian Government Solicitor)

BRENNAN J: Yes, Mr Skyring.

MR SKYRING:  The immediate matters in issue are set out in the documentation which I have to hand. I thought,

mention briefly the background to how we come to be	in order to put this matter in context, if I just
in this situation.

Basically, while the immediate application is

for leave to appeal, the appeal itself is in
respect of a judgment by the Chief Justice, in
essence, in respect of the order that he gave on
the matter of costs for the hearing which was held

in Brisbane. But the whole activity that brought

that lot on was an application to remove into this

Court, for the purposes of making a proper

determination on what seems to me to be a fairly

fundamental matter which despite a number of

attempts has not really yet been satisfactorily

resolved. This has caused me a few problems.

BRENNAN J: What is the fundamental matter?

MR SKYRING: Basically, the small matter of what actually

constitutes legal tender in this country.

BRENNAN J: That is the question you want removed into this

Court?

MR SKYRING:  In essence, that is the bottom line of what has

to be determined. What has brought this matter to

a head, although this started off at first instance

in respect of the taxation case which really got

under way in 1980 when I basically challenged that

on two basic grounds. Firstly, I was attacking

the - - -

BRENNAN J: This is the same question that you have raised

in this Court on a number of occasions.

MR SKYRING:  Yes, Your Honour, but to my mind we still have

not got to the bottom line of the issue which is

why I keep coming back.	Now, what has
happened -

BRENNAN J: This is the same point that was dealt with by

Justice Deane in an application in February 1985?

Skyring(l2)	2	6/11/91
MR SKYRING:	That is when it started, Your Honour.	My view

was

BRENNAN J: Is it the same point?

MR SKYRING:  In essence yes, but my view of that matter was

that he only ever stated the case at that time.

There was never an opposing argument to - at least

there was nobody else there at the time.

BRENNAN J:  Mr Skyring, you have endeavoured to bring this

matter before this Court time after time. Now, on

each occasion, as I understand it, you failed.

MR SKYRING: Well, it is a moot point whether I have,

Your Honour. That is the common perception, and I

take your point on that. But have I really?

BRENNAN J: The Court has heard your applications on several

occasions. You have been given full liberty to

develop your arguments -

MR SKYRING:  And I have taken the best of that but because

of the sheer size of the matter which is in issue,

Your Honour - - -

BRENNAN J:  Be it so, the Court does not have the time or

the resources to allow you repeatedly to come to

this Court agitating a question on which you have

repeatedly failed.

MR SKYRING:  But have I failed, Your Honour? In support of

that contention, might I put the point that if, in

fact, the rulings that have been given are coherent

and consistent and proper, then how come, in

connection with the last federal election when I

put my nomination fee on the table, that is, $250

in gold coin which is strict legal tender in terms

of the Currency Act, which cost me almost $1500 to

get, in terms of what purports to be legal tender,

how come that can happen? Now, it seems to me

there has got to be something terribly wrong.

BRENNAN J:  Mr Skyring, I know the point that you wish to

raise. The Court has heard it several times

before. You shall have five minutes in which you

can develop whatever you wish to say in order to

obtain leave to appeal from the Chief Justice's

order, but no more.

MR SKYRING:  Fair enough. I thought I might have got rather

a longer time, Your Honour. If I could just hand

these up. It was a rather more comprehensive

argument. There are just a couple of points that I

would speak to, if I may, to try to answer your

point.

BRENNAN J: You have five minutes, develop it as you wish.

Skyring(l2) 3 6/11/91

MR SKYRING: Fair enough, okay. If I just go through it

very quickly. It was the first four pages in that
lead item which got me on to the subject, basically

questioning the ultimate legality of taxation,

half-way down page 19, which is on the back of the

first page:

Though it was and still is the law that a tax

on property is not a diminution of property

rights, this is a very legalistic

interpretation, because in fact taxation must

be met out of property.

It was that which started me on the whole

thing, which made me suspect whether in fact
taxation as a means of funding the Crown's purposes

is legal. I believe, on the basis of that, it was

not. The other side of the argument is - okay, if

that is legal, that is a Crown charge which ought

to be paid in the Queen's money, which in terms of
the Currency Act is in gold and silver coin, which

we do not have any of.

If we jump over very quickly, at the top of

page 43 there, about the third page in, talking

about the case of perpetuities by which he meant

the laws of England:

expressed some apprehension that an Act of

Parliament might sweep away what he called

'all these perpetuities', by which he meant

especially the laws and liberties of England.

Now the point in respect of that I would make

is that while no single Act has in fact done that,

there has been - by a series of acts of slow

attrition, in fact, these liberties have been

slowly encroached on. It comes up in the form of

money. In terms of the interpretation of statutes,

the next couple of items out of Gifford, which I

previously presented:  the Plain Meaning Rule,

that overrides everything else. If we get

absurdities, which is the basis of my original
application, at the bottom of page 72 - no sorry,

the next couple of pages over:

An absurd result •.. is only to be accepted if

there is no acceptable alternative available.

That is under the heading "Manifest Absurdity". It

is in respect of that that I say manifest absurdity

does exist in respect of the currency.

In terms of the currency what we are supposed

to have - there is an extract out of the

Currency Act which states what in fact is legal

tender, and in the item in the schedules it is gold

Skyring(l2) 4 6/11/91

and silver coin only. No mention is made in terms

of paper money - specifically excluded. This

matter came up when my taxation case came up on

appeal to the Federal Court in 1984. I

specifically raised the point: "How should I pay

it?" Very clearly stated "By legal tender", and

then went on some nice things about the argument.

I had got on to that lot in view of what

Justice McPherson said in his original judgment in

my tax case in 1983:

In this court the matter of the law governing

the discharge of obligation is determined by
the Currency Act 1965, section 16 of which

prescribes what is legal tender. That Act

binds me.

Then he went on to make other statements which I queried him on, which is how the whole matter came

up. So very clearly what is legal tender is stated there. It was that which I followed through I was

unable to get. I sought to have the fundamental

statutes which I believe had been lost to sight basically reinstalled, so to speak, put back in

their rightful place, in fact, with the Act of

Parliament in Queensland, No 70 of_l984. This was,

in fact, done, which puts Magna Carta right back at

the top of the pile, item 1 schedule 1.	We
therefore have the text then out of

Sir Edward Coke's famous text on the subject, which

is what I had formed the basis of my action

against.

On the appeal, there was an interesting effort

came up before the Federal Court which was a

judgment in chambers by the then Chief Justice of

the day on the matter of security costs and payment

of same in a case in this Court in 1981. The clear

inference from the body of that is that it is taken

as right and proper that there should be this

encroachment of property rights to pay legal costs.

The contention in terms of Sir Edward Coke's

observations on Magna Carta, which in Queensland is

now reinstated - and indeed always has been the

law; it is just that it has been lost to sight and

it has rather lost its force - is that that has
never been on. The fact is that a situation has

never been evolved whereby justice can be done to

this end.

That brings us then to the powers of the

Federal Parliament which is set up to legislate in

this area and should give us a set of laws which

will satisfy these requirements. I just cite there

in respect of taxation - the essential point is

they shall make laws for the peace, order and good

Skyring(l2) 5 6/11/91

government of a nation. If this is not done, they

are not doing their duty properly.

There are very severe constraints on what they

can do, not only in terms that they are restricted

to their own area, but bear in mind that this

Constitution is an Act of British Parliament. It

therefore has to be read in conjunction with other

relevant Acts which are in fact this celebrated

Magna Carta and indeed the Bill of Rights. All

three must be taken together and if the feds do

anything which violates that, then it is just -

BRENNAN J:  Your time has expired, Mr Skyring. We need not

trouble you, Mr Erskine.	The application is
refused.

MR ERSKINE:  I seek an order for costs, may it please the

Court.

MR SKYRING:  I am unable to pay in a strictly legal manner.

If I am unable to pay, I shall not pay at all.

That is the point that I sought to have addressed

by this action to allow a process to be instituted

which will allow that to be brought in properly.

Because you have denied me this, you have denied me

justice and I am quite unable to - much as I would

desire to, I am physically constrained from meeting your order. I cannot do it. It is not that I will

not; I cannot, strictly legally.

BRENNAN J: It will be refused with costs.

AT 12.00 PM THE MATTER WAS ADJOURNED SINE DIE

Skyring(l2) 6 6/11/91