Clyne v Deputy Commissioner of Taxation (Cth)

High Court of Australia MASON ACJ Clyne v Deputy Commissioner of Taxation (Cth)

ORDER Order Order that the stay which arose under O 70, r 12(2) on the lodging of security by the appellant be removed. Order that the costs of the application be the respondent's costs in the appeal. Mason ACJ

This is an application under O 70, r 12 of the High Court Rules for a removal of a stay of proceedings which came into operation under the rules when the appellant Mr Clyne lodged security in the sum of $100 in connexion with his appeal to this court from a decision of the New South Wales Court of Appeal.

The facts material to the application may be shortly stated. The appellant was assessed to tax in the years ended 30 June 1977, 1978 and 1979 (including provisional tax for the year ended 30 June 1980) in the sum of $364,976.98. The Deputy Commissioner, the respondent to the appeal, commenced an action in the Supreme Court of New South Wales against the appellant for that amount and additional tax for late payment less credits. The appellant's defence to the action was that the assessments were invalid. He contended, inter alia , that the relevant section under the Income Tax (Rates) Act 1976 (Cth) and the Income Tax Assessment Act 1936 (Cth), as amended, (the Assessment Act) were ultra vires the Commonwealth Parliament because they discriminated between parts of States and contravened ss 51(ii)and 99 of the Constitution and because they attempted to authorize the acquisition of property without providing just terms pursuant to s 51(xxxi) of the Constitution. He also sought to argue that the assessments were invalid because they were made for improper purposes not authorised by the Assessment Act.

The primary judge (Hunt J) found for the Deputy Commissioner, giving judgment in his favour for $334,826.25 with costs, after allowing for credits which included an amount of $108,829.07 recovered by the Deputy Commissioner from a bank and a building society with which the appellant had deposited moneys. The Court of Appeal dismissed an appeal from this decision with costs.