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DEPUTY COMMISSIONER OF TAXATION v MEREDITH [2007] NSWCA 354 (10 December 2007)

Last Updated: 11 December 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: DEPUTY COMMISSIONER OF TAXATION v MEREDITH [2007] NSWCA 354

FILE NUMBER(S):
40251/07

HEARING DATE(S): 6 November 2007

JUDGMENT DATE: 10 December 2007

PARTIES:
Deputy Commissioner of Taxation – Claimant
Lynnette Anne MEREDITH - Opponent

JUDGMENT OF: Giles JA Ipp JA Basten JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2613/05

LOWER COURT JUDICIAL OFFICER: Quirk DCJ

LOWER COURT DATE OF DECISION: 27 October 2006

COUNSEL:
D J Fagan SC/D Liebhold – Claimant
G Segal - Opponent

SOLICITORS:
Australian Government Solicitor – Claimant
Forbes-Smith and Company - Opponent

CATCHWORDS:
EVIDENCE – presumption of delivery in course of post – relationship of Evidence Act 1995 (Cth) to other Acts – Evidence Act 1995 (Cth), ss 160 and 163[ ][ ]NOTICE – service by post – letter from Commonwealth agency – evidence of non-delivery or non-receipt – Acts Interpretation Act 1901 (Cth) s 29 – Income Tax Assessment Act 1936 (Cth) s 222AOF – Evidence Act 1995 (Cth) ss 160 and 163[ ][ ]TAXATION – liability for failure to remit tax withheld from salary entitlements – Income Tax Assessment Act 1936 (Cth) s 222AOE [ ][ ]WORDS & PHRASES – “contrary intention” in statute – “give”, “serve”, “send” a notice – “sending it by post”

LEGISLATION CITED:
[Acts Interpretation Act] 1901 (Cth), ss 2, 28A, 29, 40
[Acts Interpretation Act] 1956 (Qld), ss 13, 39
[Corporations Law], s 109Y
[Civil Procedure Act] 2005 (NSW), s 100
[District Court Act] 1973 (NSW), s 127
[Evidence Act] 1995 (Cth), ss 4, 5, 160, 163, 182
[Income Tax Assessment Act] 1936 (Cth), ss 222ANA, 222AOC, 222AOE, 222AOF, Division 9, Pt 6
[Income Assessment Act] 1997 (Cth), s 950-100
[Insolvency (Tax Priorities) Legislation Amendment Act] 1993 (Cth), s 16
[Interpretation Act] 1987 (NSW), s 76
[Hire-Purchase Act] 1959 (Qld), s 42
[Justices Act] 1886 (Qld), s 56
[Local Government Act] 1919 (NSW), s 628
[Local Government Act] 1993 (NSW), s 710
[Migration Act] 1958 (Cth), ss 494A and 494B
[Supreme Court Act] 1970 (NSW), s 75A
Supreme Court Rules 1970 (NSW), Pt 51 r 4

CASES CITED:
[Alexander v Stocks & Holdings (Sales) Pty Ltd] [1975] VicRp 83; [1975] VR 843
[Buresti v Beveridge] [1998] 1136 FCA; (1998) 88 FCR 399
[Cheong v Webster] (1986) 20 A Crim R 107
[Cousins v Gosford Shire Council] (1970) 92 WN(NSW) 263
[Deputy Commissioner of Taxation v Coco] [2003] QSC 119
[Deputy Commissioner of Taxation v Dick] [2007] NSWCA 190
[Deputy Commissioner of Taxation v George] [2002] NSWCA 336; (2002) 55 NSWLR 511
[Deputy Commissioner of Taxation v Gruber] [1998] NSWSC 64; (1998) 43 NSWLR 271
[Deputy Commissioner of Taxation v Mutton] (1988) 12 NSWLR 104
[Deputy Commissioner of Taxation v Nercessian] [2006] NSWCA 268; (2006) 67 NSWLR 215
[Deputy Commissioner of Taxation v Saunig] [2002] NSWCA 390; (2002) 55 NSWLR 722
[Deputy Commissioner of Taxation v Taylor] [1983] 2 NSWLR 139
[Deputy Commissioner of Taxation v Trio Site Services Pty Ltd] [2007] FCA 776
[Deputy Commissioner of Taxation v Woodhams] [2000] HCA 10; (2000) 199 CLR 370
[Deputy Commissioner of Taxation (Cth) v Woodhams] [1998] VSCA 126; (1998) 148 FLR 230
[Fancourt v Mercantile Credits Ltd] [1983] HCA 25; (1983) 154 CLR 87
[Forsyth v Deputy Commissioner of Taxation] [2004] NSWCA 474; (2004) 62 NSWLR 132
[In re 88 Berkeley Road, NW9; Rickwood v Turnsek] [1971] Ch 648
[Kyogle Shire Council v Muli Muli Local Aboriginal Land Council] [2005] NSWCA 4; (2005) 62 NSWLR 361
[McCallum v Purvis] [1906] VicLawRp 99; [1906] VLR 578
[McClelland v Amcil Industries Pty Ltd] (1983) 1 NSWLR 615
[Murphy v Teakbridge] (1999) NSWSC 1231
[R v Westminster Unions Assessment Committee] [1917] 1 KB 832
[Repatriation Commission v Gordon] [1990] FCA 41; (1991) 100 ALR 255
[Scope Data Systems Pty Ltd v Goman] [2007] NSWSC 278
[Skalkos v T & S Recoveries Pty Ltd] [2004] FCAFC 321; (2004) 141 FCR 107
[ ]Pearce and Geddes, [Statutory Interpretation in Australia] (6th ed, 2006) at [6.1]

DECISION:
(1) Grant leave to appeal.[ ][ ](2) Direct that the Commissioner of Taxation file a notice of appeal in accordance with the draft notice of appeal which accompanied the leave application within seven days of the date of this judgment.[ ][ ](3) Allow the appeal and set aside the judgment and orders in the District Court made on 27 October 2006.[ ][ ](4) In lieu thereof:[ ](i) give judgment for the plaintiff in the amount of $67,576 together with interest to be calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW);[ ](ii) without disturbing any costs orders made prior to 27 October 2006, order that the defendant pay the plaintiff’s costs in the District Court.[ ][ ](5) Order that the Opponent pay the Claimant’s costs in this Court.[ ][ ](6) Grant the Opponent a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40251/07

DC 2613/05

GILES JA

IPP JA

BASTEN JA

10 December 2007

DEPUTY COMMISSIONER OF TAXATION v MEREDITH

Headnote

The Opponent was the director of Merro Holdings Pty Ltd. Between 1 March 2002 and 21 June 2004, the company withheld amounts of tax from the salary entitlements of its employees but failed to remit those amounts to the Commissioner of Taxation, rendering her liable for a penalty equivalent to those amounts under s 222AOC of the Income Tax Assessment Act 1936 (Cth).

By letter dated 27 July 2004, the Commissioner of Taxation gave notice to the Opponent of her liability and the available options to discharge the liability. The Opponent said that she had not received the notice, that if it had been delivered she would have received it, and that therefore it had not been delivered. If it had not been delivered, she was not liable. On 27 October 2006, Quirk DCJ found on the balance of probabilities that the penalty notice had not been delivered and dismissed the Commissioner’s claim for an amount of $67,576.

The Commissioner seeks to appeal from the decision of Quirk DCJ.

The Court held, granting leave to appeal and allowing the appeal:

(per Giles JA dissenting)

1. While it may be accepted that Part 6, Div 9 of the Income Tax Assessment Act 1936 (Cth) sets out a stringent scheme of recovery for directors of companies which have failed to remit tax, this does not exclude s 222AOF of the Income Tax Assessment Act from the application of s 29 of the Acts Interpretation Act 1901 (Cth): [30].

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87; Cheong v Webster (1986) 20 A Crim R 107; Deputy Commissioner of Taxation v Gruber [1998] NSWSC 64; (1998) 43 NSWLR 271; Deputy Commissioner of Taxation v Nercessian [2006] NSWCA 268; (2006) 67 NSWLR 215; Deputy Commissioner of Taxation v Coco [2003] QSC 119, considered.

Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361, distinguished.

2. Section 222AOF(1) of the Income Tax Assessment Act does not stand alone, but is affected by the rebuttable presumption in s160(1) of the Evidence Act 1995 (Cth): [42].

Buresti v Beveridge (1998) 88 FCR 399, referred to.

3. No error was shown in the trial judge's finding that on the balance of probabilities the penalty notice had not been delivered: [48].

(per Basten JA, Ipp JA agreeing)

4. There is no presumption that, in the absence of an express intention to the contrary, Parliament intended both a general provision in the Acts Interpretation Act and a provision in a separate Act to have concurrent operation: [66]. Restraint should be exercised in finding a “contrary intention” in relation to a definition in a particular Act. However, a clear contrary intention can be revealed without express reference to s 29 of the Acts Interpretation Act: [67].

Buresti v Beveridge (1998) 88 FCR 399; Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104; Forsyth v Deputy Commissioner of Taxation [2004] NSWCA 474; (2004) 62 NSWLR 132; Deputy Commissioner of Taxation v Dick [2007] NSWCA 190, referred to.

5. Although the purpose of "service" is to bring a document to the notice of the intended recipient, statutory provisions which deem service to have occurred in particular circumstances will not fail in their purpose because of evidence of non-receipt: [78].

Deputy Commissioner of Taxation v Gruber [1998] NSWSC 64; (1998) 43 NSWLR 271, considered.

6. Section 222AOF of the Income Tax Assessment Act reveals a clear intention that the Commissioner will satisfy the precondition to the entitlement to recover the penalty if a notice is sent by post to the director’s address as found in ASIC records: [75], [86]. Section 222AOF provides a self-contained means of satisfying the precondition to recovery specified in s 222AOE, and is not itself subject to the operation of s 29 of the Acts Interpretation Act: [82].

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87; Deputy Commissioner of Taxation v Woodhams [2000] HCA 10; (2000) 199 CLR 370; Deputy Commissioner of Taxation v Gruber [1998] NSWSC 64; (1998) 43 NSWLR 271; Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361; Deputy Commissioner of Taxation v Nercessian [2006] NSWCA 268; (2006) 67 NSWLR 215, considered.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40251/07

DC 2613/05

GILES JA

IPP JA

BASTEN JA

10 December 2007

DEPUTY COMMISSIONER OF TAXATION v MEREDITH

Judgment

1 GILES JA: The appellant brought proceedings to recover from the respondent, as a penalty recoverable pursuant to s 222AOC of the Income Tax Assessment Act 1936 (C’th) (“the Act”), tax withheld but not remitted by a company of which the respondent was a director. By s 222AOE of the Act, the appellant was not entitled to recover the penalty until the end of 14 days after there had been given to the respondent a notice setting out details of the penalty amount and stating that the penalty would be remitted if at the end of the 14 days one of a number of things had happened (“a penalty notice”). The issue in the District Court was whether the appellant had given the respondent a penalty notice.

2 Section 222AOF of the Act provides -

“222AOF How notice may be given

(1) If it appears from ASIC documents that a person is, or has been within the last 7 days, a director of the company, the Commissioner may give the person a notice under section 222AOE by leaving it at, or sending it by post to, an address that appears from such documents to be, or to have been within the last 7 days, the person’s place of residence or business.

Note: Sections 28A and 29 of the Acts Interpretation Act 1901 are also relevant to giving a notice under section 222AOE.

(2) In this section:

ASIC document means a return:

(a) lodged with the Australian Securities and Investments Commission under section 205A, 205B or 346C of the Corporations Act 2001; or

(b) lodged with a person under a law that, for the purposes of the Corporations Act 2001, is a previous law corresponding to section 205A, 205B or 346C of that Act.”

3 It is convenient at this point to set out ss 28A and 29 of the Acts Interpretation Act 1901 (C’th) -

“28A Service of documents

(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:

(a) on a natural person:

(i) by delivering it to the person personally; or

(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

(b) on a body corporate—by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.

(2) Nothing in subsection (1):

(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or

(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection.

29 Meaning of service by post

(1) Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2) This section does not affect the operation of section 160 of the Evidence Act 1995.”

4 In the District Court the evidence called for the appellant established that a penalty notice had been posted by pre-paid post to the respondent at her address obtained from ASIC documents as her place of residence. The address was in fact the address of her place of residence.

5 It was accepted that it was insufficient for the respondent to give evidence that she had not received the penalty notice: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87; Deputy Commissioner of Taxation v Gruber [1998] NSWSC 64; (1998) 43 NSWLR 271. The respondent and her husband gave evidence from which the respondent submitted that, from their household’s practice in collecting and dealing with mail and their knowledge of the importance of such a notice coupled with its non-receipt, it should be found that the penalty notice had not been delivered. The respondent submitted that non-delivery, as distinct from non-receipt, meant that the penalty notice had not been given as required by s 222AOE of the Act.

6 The appellant contested that the evidence sufficed to prove non-delivery. The appellant did not submit that under s 222AOF(1) giving a penalty notice was complete upon putting it in the post, so that a finding of non-delivery was irrelevant.

7 Quirk DCJ upheld the respondent’s submissions. Referring amongst other cases to Murphy v Teakbridge (1999) NSWSC 1231 (Macready M), her Honour held -

“Although the evidence of a system in the present case is not quite as detailed as the evidence in Murphy, taking into account the other matter that Macready M considered relevant, ie the unlikelihood, in circumstances where there was a purported delivery by post to residential premises, as opposed to mail sent to a business address, that the mail could go missing or be taken by another occupant of the premises, and given that there has been no direct challenge to the evidence of the defendant and her husband, I accept that their evidence establishes that the penalty notice, on the balance of probabilities, was not delivered.

There is sufficient evidence of non delivery to displace the presumption contained in the Acts Interpretation Act.”

8 The presumption in the Acts Interpretation Act (C’th) to which her Honour referred was the deeming in its s 29. Her Honour’s reasoning came down to -

(a) section 222AOF(1) authorised service of the penalty notice by post;

(b) section 29(1) then stated how the service was to be effected and, subject to proof to the contrary, when it was effected;

(c) the contrary of deemed service effected at the time of delivery in the ordinary course of post could be proved by proof of non-delivery; and

(d) on the balance of probabilities, non-delivery was proved.

Extension of time and leave to appeal

9 The amount of the penalty was $67,576. The appellant needed leave to appeal: District Court Act 1973, s 127(2)(c). A holding summons for leave to appeal had been duly filed. The ordinary summons for leave to appeal should have been filed within three months thereafter (Supreme Court Rules, Pt 51 r 4(3)), but was filed about two months late. An extension of time within which to apply for leave to appeal was also necessary.

10 The delay in filing the ordinary summons for leave to appeal was explained: the appellant could not obtain the transcript or, more importantly, the corrected reasons for judgment for the White Book which should accompany it. The appellant so informed the respondent prior to the expiry of the three months and asked for consent to an extension of time, but consent was declined. The respondent said nothing in opposition to an extension of time, and it should be granted.

11 The appellant’s primary contention on appeal was that, by force of s 222AOF(1) of the Act (hereafter, s 222AOF(1)), it was sufficient for giving the penalty notice that it was put in the post addressed to the address ascertained from ASIC documents. The appellant said that s 29(1) of the Acts Interpretation Act (C’th) (hereafter, s 29(1)) with its provision for proof to the contrary of deemed service had no application, and that proof of non-delivery was irrelevant. The appellant’s secondary contention was that the evidence of the respondent and her husband was insufficient for proof of non-delivery and the judge had been in error in her finding that the penalty notice had not been delivered.

12 The primary contention had not been the appellant’s position in the District Court, where the appellant had accepted that service by posting in accordance with s 222AOF(1) could be negated by proof of non-delivery. However, it was a question of law, and the respondent accepted that it could not have been met by further or different evidence. The contention had not adequately been brought out in the appellant’s summary of argument filed prior to the hearing, but the respondent did not assert inability to deal with it. It raises an important matter in the operation of the provisions concerned with recovery of penalties under s 222AOC of the Act, a matter which has not previously clearly been decided. Notwithstanding the change in the appellant’s position, leave to appeal should be granted; and I do not think that there is sufficient reason to exclude from the leave the appellant’s secondary contention. The change in position could nonetheless have costs consequences.

Further statutory provisions

13 Section 29(2) of the Acts Interpretation Act (C’th) provides that the section “does not affect the operation of section 160 of the Evidence Act 1995”. This must refer to the Evidence Act 1995 (C’th), see s 40(1)(c) of the Acts Interpretation Act (C’th).

14 Section 160 of the Evidence Act (C’th) provides -

“160 Postal articles

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(2) This section does not apply if:

(a) the proceeding relates to a contract; and

(b) all the parties to the proceeding are parties to the contract; and

(3) In this section:

working day means a day that is not:

(a) a Saturday or a Sunday; or

(b) a public holiday or a bank holiday in the place to which the postal article was addressed.

Note: Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency.”

15 Section 160 of the Evidence Act (C’th) applies in relation to proceedings in a federal court or an ACT court (s 4(1) and the definitions in the Dictionary). However, as the note to s 160 indicates, by s 182 it applies more widely, including (s 182(4A)) “in relation to postal articles sent by a Commonwealth agency as if [it] applied to the extent provided for in section 5”. Section 5 provides for application “to all proceedings in an Australian court”. The definition of “Commonwealth agency” in the Dictionary includes a person or body holding office or exercising power under or because of a law of the Commonwealth, and the definition of “postal article”, taking up the meaning in the Australian Postal Corporation Act 1989, is effectively any article which may be carried by post. Accordingly, s 160 applies in the District Court to a penalty notice posted by the Commissioner.

16 Section 163 of the Evidence Act (C’th) was referred to in submissions. It also applies in the District Court, because by s 5 of the Evidence Act (C’th) it applies in relation to all proceedings in an Australian court. It provides -

“163 Proof of letters having been sent by Commonwealth agencies

(1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

(2) In this section:

business day means a day that is not:

(a) a Saturday or a Sunday; or

(b) a public holiday or bank holiday in the place in which the letter was prepared.

letter means any form of written communication that is directed to a particular person or address, and includes:

(a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and

(b) any envelope, packet, parcel, container or wrapper containing such a communication; and

... ”

The primary contention

17 A notice under s 222AOE of the Act need not be given in accordance with s 222AOF(1). Section 222AOF(1) states that the Commissioner “may” give a penalty notice in the manner for which it provides and he may not. That is the point of the note drawing attention to ss 28A and 29 of the Acts Interpretation Act (C’th). The note refers to giving a notice under s 222AOE, not to giving a notice by posting in accordance with s 222AOF(1). Even if an address can be ascertained from ASIC documents, a penalty notice can be given by personal service, or by leaving it at or sending it by post to some other address being the address of the last known place of residence or business.

18 Section 28A authorises service in these ways, and ss 222AOE and 222AOF of the Act do not exhibit a contrary intention. Section 29(1) then applies to the sending by post in accordance with s 28A, spelling out what is required for sending by pre-paid post (albeit with duplication of prepayment) and when the service is effected. (In McClelland v Amcil Industries Pty Ltd (1983) 1 NSWLR 615 at 619 Samuels JA speaks of the broadly equivalent provision of the Interpretation Act 1987 being “intended to flesh out” provisions for service by post.)

19 If the Commissioner does avail himself of s 222AOF(1), does it alone govern how and when a penalty notice is given? Or, as the respondent submitted, does s 29(1) apply, as it does for the sending by post in accordance with s 28A, to spell out what is required for sending by post and when the service is effected? If the former, it may still be necessary to ask whether “sending it by post” in s 222AOF(1) is fulfilled upon putting the penalty notice in the post, without regard to delivery. If the latter, it is open to prove to the contrary of deemed service effected at the time at which the penalty notice would be delivered in the ordinary course of post.

20 The appellant accepted that proof to the contrary under s 29(1) extended to proof that the penalty notice was not delivered at all, see Repatriation Commission v Gordon [1990] FCA 41; (1991) 100 ALR 255 at 265 per Spender J. Given the acceptance, there is no occasion to question this position, which was suggested to be anomalous in Fancourt v Mercantile Credits Ltd at 97; see also Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107 at [16]- [25].

21 Section 163 of the Evidence Act (C’th) does not intrude into this. It is not concerned with what must be done for sending by post or when the service by sending by post is effected. It is concerned, in the case of a letter from a Commonwealth agency, with when the sending by post occurred. In the present case there is no doubt about when the sending by post occurred, which was a matter of evidence.

22 Section 160(1) of the Evidence Act (C’th) does, however, call for consideration. The Acts Interpretation Act (C’th) goes beyond interpretation. The second limb of s 29(1) states the deemed consequence of the act of properly addressing prepaying and posting a document as a letter, namely, that the service is effected at the time at which the letter would be delivered in the ordinary course of post. Section 160(1) also states, as a rebuttable presumption, the consequence of the act of sending a postal article by prepaid post, namely, that it was received (in context meaning delivered) on the fourth working day after being posted. Section 29(2) resolves the inconsistency between them by giving primacy to s 160. (The relationship between s 29(1) and s 160(1) of the Evidence Act (NSW), which is in the same terms as s 160(1) of the Evidence Act (C’th), is contentious, see Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278, but is not of present relevance.) If s 160(1) (of the Evidence Act (C’th)) has primacy, and if rebuttal of the presumption may extend to proof that the letter was not delivered at all, then proof of non-delivery may be available to negate service by posting in accordance with s 222AOF(1) by force of s 160(1) instead of or as well as by force of s 29(1).

23 I go first to s 222AOF(1). Its terms attract s 29(1). Where it speaks of giving a penalty notice by sending by post, the sending by post being the means of giving the penalty notice, that is authorising a document to be served by post; the duality of giving by sending is within the use of “any other expression” to signify serving by post.

24 Two consequences follow. First, unless the contrary intention appears the service is deemed to be effected by properly addressing prepaying and posting the penalty notice as a letter. Secondly, unless the contrary is proved service is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post.

25 I do not think a contrary intention appears whereby the first consequence is excluded. Section 222AOF(1) refers to sending by post, but does not state what amounts to sending other than that the address to which the penalty notice is sent is an address appearing from ASIC documents. The reference in s 29(1) to “properly addressing” remains apt – if the letter bears that address, it is properly addressed. Prepaying and posting as a letter are consistent with sending by post, indeed probably are no more than would otherwise have been understood. The second consequence is not to be excluded by a contrary intention, but by contrary proof; s 222AOF(1) does not state when the giving by sending by post is effective, and consistently with it s 29(1) can state that the service is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post unless the contrary is proved.

26 By s 2(1) of the Acts Interpretation Act (C’th), it applies to all Acts “[e]xcept so far as the contrary intention appears”. The question is whether, notwithstanding that the terms of s 222AOF(1) attract s 29(1), s 29(1) does not apply to the Act so far as s 222AOF provides for a manner of giving a penalty notice.

27 Slightly elaborated, the appellant’s argument for a contrary intention was to the following effect.

28 Division 9 of Pt 6 of the Act makes detailed provision for a scheme of recovery from directors of tax which their companies have failed to remit. The legislative scheme was considered in Deputy Commissioner of Taxation v Woodhams [2000] HCA 10; (2000) 199 CLR 370, see also Deputy Commissioner of Taxation v George [2002] NSWCA 336; (2002) 55 NSWLR 511 and Deputy Commissioner of Taxation v Dick [2007] NSWCA 190. It has the purpose of ensuring that a company either meets its obligations or goes promptly into voluntary administration or liquidation, the recovery of penalties being an incentive for the directors to cause this (see in particular s 222ANA of the Act). It is a stringent scheme – in Deputy Commissioner of Taxation v Gruber Stein JA, with whom Powell JA and Sheppard AJA agreed, referred at 278 to “the potentially draconian effect of the provisions”.

29 Against that background, it is apparent from s 222AOF that it authorises a particular manner of giving a penalty notice, separate from that authorised by s 28A of the Acts Interpretation Act (C’th) and turning on use of addresses appearing from ASIC documents. The distinction from s 28A is marked in that an address appearing from ASIC documents may not be the address last known to the Commissioner, and may be out of date by up to seven days, but the Commissioner is still entitled to give a penalty notice by leaving it at or sending it by post to that address. Section 222AOF stands alone, and its particular manner of giving a penalty notice should be given effect without addition or cutting down by the application of s 29(1). So far as there might be concern about recovery of a penalty when a penalty notice has been posted but has not been delivered, so that the director has not had the opportunity to cause the company to meet its obligations or go promptly into voluntary administration or liquidation, it was well established that there could be recovery although a penalty notice had not been received; giving s 222AOF(1) effect whereby there could be recovery although a penalty notice had not been delivered did not involve significantly greater harshness.

30 I do not find the argument persuasive. It may be accepted that Div 9 of Pt 6 of the Act sets out a stringent scheme with the purpose stated above, as part of which the Commissioner may give penalty notices by sending them to addresses appearing from ASIC documents. But that does not exclude fleshing out the bald “sending it by post” in s 222AOF(1) by the statement in s 29(1) of how the service is to be effected and when it is effected. As I have said, if s 222AOF alone governs how and when a penalty notice is given it may still be necessary to ask whether “sending it by post” is fulfilled upon putting the penalty notice in the post, but it would require a clear intention to take away the application of s 29(1) to s 222AOF(1) in the same manner as it applies to s 28A of the Acts Interpretation Act (C’th). The distinction between s 222AOF and s 28A in the former’s use of ASIC addresses – which may also constitute last known addresses for the purposes of s 28A – does not detract from the application of s 29(1) to both. Further, there is quite a difference between non-receipt and non-delivery, and the equanimity with which recovery although a penalty notice had not been received is accepted does not readily extend to recovery although a penalty notice had not been delivered. Delivery but non-receipt will normally be because of the director’s default in maintaining a correct address or attending to collection of mail sent to the address. Non-delivery casts on the director the risk of failure of the postal system, over which the director has no control. There is significantly greater harshness.

31 The respondent relied on Fancourt v Mercantile Credits Ltd, in which it was held that the provision in s 42(1)(c) of the Hire Purchase Act 1959 (Qld) for service of notices on owners or hirers by post was not inconsistent with s 39(1) of the Acts Interpretation Act 1956 (Qld), which was in similar terms to s 29(1). The Court’s attention was upon whether s 42 called for receipt of the notice as distinct from delivery. It was held that it did not, and that in that respect the Hire Purchase Act (Qld) did not express an intention contrary to s 39(1). The contrary intention in question was different from that in question in the present case, and in any event the legislation was different, in particular in that s 42(2) of the Hire Purchase Act (Qld) referred to evidence of posting as prima facie evidence of due service and so recognised that the due service could be rebutted. I do not think the decision assists the respondent, but nor is it against her.

32 The appellant referred to two decisions of this Court, acknowledging that they were not decisive.

33 In Deputy Commissioner of Taxation v Gruber it was held, applying Fancourt v Mercantile Credits Ltd, that a penalty notice could be validly served in accordance with s 222AOF(1) even if it was not in fact received. The reasons of Stein JA included, at 277 -

“The Commissioner submits that s 222AOF was complied with and therefore the notices were validly served. Reliance is placed on what was said by Lee J in Deputy Commissioner of Taxation v Taylor (1983) 2 NSWLR 139 at 143:

‘But the very fact that a mode of service other than personal service is permitted, of itself ordinarily means that service will be complete when the requirements stipulated for service have been fulfilled.’

In my opinion, the statement by Lee J is apposite to s 222AOF.”

34 This was said in relation to sending to the address appearing in ASIC documents, and I do not think it should be taken to exclude the application of s 29(1). A few paragraphs later his Honour said, “Should it be necessary to refer to or rely upon s 28A and s 29 of the Acts Interpretation Act 1901 (Cth) ... then the presumptions inherent in the sections apply and are not displaced by the respondent’s evidence of non-receipt.” His Honour may have had in mind that s 29(1) could be relied on, although from the reference to s 28A he may not have intended to link s 29(1) with s 222AOF. It is enough that the decision did not address the present question.

35 In Deputy Commissioner of Taxation v Nercessian [2006] NSWCA 268; (2006) 67 NSWLR 215 the question was whether the Commissioner could obtain the address from ASIC’s database or whether it was necessary to search the return or notice from which the address had been extracted. It was held that the database was a sufficient source for the address. Santow JA, with whom Mason P and McColl JA agreed, said at [32] that it was not necessary to resolve whether there was an alternative basis for giving the penalty notice in ss 28A and 29 of the Acts Interpretation Act (C’th). His Honour expressed at [36] “the provisional view that s 28A and s 29 are capable of application as alternative modes of satisfying s 222AOF [sic: ? s222AOE] ... ” .

36 This supports that s 222AOF provides a manner of giving a penalty notice distinct from that authorised by s 28A, which as appears earlier in these reasons I accept, but it is reading too much into his Honour’s provisional view to find support for s 29(1) applying only to the manner of giving a penalty notice authorised by s 28A and not to giving a penalty notice in accordance with s 222AOF(1).

37 In Deputy Commissioner of Taxation v Coco [2003] QSC 119 Mullins J said at [27] that the Commissioner, who had sent a penalty notice in accordance with s 222AOF, could “rely on the deeming provision contained in s 29 of the Acts Interpretation Act 1901 (C’th)”. If the Commissioner can rely on it, the director can seek to prove to the contrary of the deemed time of service.

38 The attention of the parties was drawn to Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; [2005] 62 NSWLR 361. The Local Government Act 1993 provided in s 710(2) for service of notices in a number of different ways, including (in s 710(2)(c)) “by posting the notice by a pre paid letter addressed to the last known place of residence or business or post office box of the person to be served”. Whether the LALC was out of time in appealing against the levying of rates turned on when the rate notice posted by the Council was served. Tobias JA, with whom Ipp JA and Brownie AJA agreed, considered that s 710 evidenced a contrary intention such that s 76(1) of the Interpretation Act 1987, broadly equivalent to s 29(1), did not apply, and said at [35] that “it is the act of posting that constitutes service and, once posted, the act of service is complete and the time of completion is self evident”.

39 However, s 710 was in very different terms from s 222AOF. Of the many ways of service in s 710(2) other than that in s 710(2)(c), all but one were complete in themselves - delivery to premises, facsimile transmission, fixing on a building and so on. There was specific provision in the case of the one, service by way of a document exchange, for when service was taken to be effected until the contrary was proved. In his Honour’s view, s 710(4)(c) making particular provision for how service of a rate notice “may be effected” indicated that the ways of service in s 710(2) meant that service was “effected” by performing the act or acts specified therein. He considered that the act of posting in s 710(2)(c) should have the same effect as did the other ways of service, and that that legislature had directed its attention to the only exception in the case of service by way of a document exchange.

40 There is none of this textual guidance in the case of s 222AOF(1), and in my opinion Kyogle Shire Council v Muli Muli Local Aboriginal Land Council is distinguishable.

41 Another case in which it was held that service was by the act of posting is Cheong v Webster (1986) 20 A Crim R 107. It was held at 109 that s 39(1) of the Acts Interpretation Act (Qld) was “inconsistent with and repugnant to the true intent and object of” s 56(1) of the Justices Act 1886 (Qld), which provided for service of a summons by posting to the last known business or residential address. The Court observed that s 56 provided a number of modes of service which may well not lead to the process coming to the notice of the defendant, and was influenced by the justices’ power to adjourn, to re-open proceedings and to set aside a conviction or vacate or vary an order where the summons had not come to the notice of the defendant. There is no equivalent safety net in relation to giving a penalty notice.

42 Turning then to s 160(1) of the Evidence Act (C’th), there is no provision for a contrary intention whereby it does not apply (although that does not necessarily preclude inapplicability: Buresti v Beveridge [1998] 1136 FCA; (1998) 88 FCR 399 at 401). If there were room for a contrary intention, for similar reasons to those in the preceding paragraphs I do not think that s 222AOF(1) should be held to stand alone, unaffected by the rebuttable presumption in s 160(1). If negation of service by posting can be available by force of s 160(1) instead of or as well as by force of the second limb of s 29(1), the result is the same.

The secondary contention

43 The judge summarised the evidence as follows -

“Ms Meredith, in her affidavit sworn 14 September 2006, deposes relevantly as follows:-

That she lived with her husband at [the residential address] with three of her children; that she collected the mail each day and divided it into various piles; that she opened any mail addressed to her and left the other mail for each of the recipients, namely her husband and the children, to open; that it had always been the practice of the family that they do not open each other’s mail without permission; that she had first seen the director penalty notice annexed to the affidavit of Virginia Smith; that if she had received such a notice she would have given it to her husband as she always has with any legal document over the 34 years of their marriage.

She deposed further that her husband was a practising solicitor until seven years ago and had practised for more than 27 years as a solicitor, and was also a practising tax agent during this period and was conversant with the requirements for legal documents issued by the Australian Tax Office as well as other legal documents. She deposed that on or around 27 July 2004 she and her husband were working at a hotel which was, as I understand it, the place of operation of the business, at [the business address] and travelled home together. On arriving home, she picked up the mail, as was her usual practice, and stated that she ‘would have sorted any mail as normal.’

She deposed to not having seen the director penalty notice until sighting it attached to the affidavit of Virginia Smith and that the notice was never received by her at any time prior to the commencement of the proceedings and that otherwise she would have given it to her husband and would have contacted the Taxation Office about it. She deposed to having had previous dealings with the Taxation Office and having had constant contact with Barbara Ackland of the Newcastle Taxation Office between 2001 and 2003 when she was paying off an old tax debt, which is now fully paid off.

She deposed to having knowledge of the importance of notices received from the Taxation Department and the need to comply with them.

Her husband’s affidavit is, as I have said, in very similar terms.”

44 Her Honour noted that neither the respondent nor her husband was required for cross-examination, and said that for that reason she did not “make any adverse comment” about their evidence because of its similarity.

45 The appellant submitted that the evidence was “loose and inconclusive”, such that the evidence of non-receipt was not evidence of non-delivery. It was said that there was no evidence of the receptacle for the mail addressed to the residence, a letter box or otherwise, or of the safety of that receptacle, and that the evidence of the respondent and her husband was evidence of their practice rather than of recollection of collecting mail. It was said that there remained a real possibility that mail was lost or mislaid after delivery rather than collected and, particularly because the children might have had a hand in collecting it, that it might have been misdirected.

46 The appellant submitted that the evidence fell short of that in Murphy v Teakbridge. That case was concerned with proof of non-delivery in connection with service of a statutory demand by post in accordance with s 109Y of the Corporations Law. There was evidence from a Mr Adams that the postal address was a home unit in Sydney where he normally resided over the weekend and sometimes on Monday; that he was the person who received the mail, except when the letter box became too full when his neighbour would take it out and later give it to him; that he was in Sydney on the days on which the letter would have been delivered in the ordinary course; that he was aware of the importance of a statutory demand and would not have ignored it if it had been received; and that it was not received. The Master (as his Honour then was) said -

“22. It seems to me that it is important in this case that we are not dealing with a letter which was sent to a business address where other people may open mail or where there is a likelihood of it being mislaid. There is no doubt that the letter was posted but it seems to me that the evidence given by Mr Adams is sufficient evidence ‘to the contrary’ to disprove delivery of the letter.”

47 In the appellant’s submission, on the evidence in the present case other people might open mail or it might be mislaid.

48 It is a question of fact in each case. The judge made her finding on the balance of probabilities. In my opinion, the evidence entitled her to make it. It is correct that the evidence did not specify the receptacle for the mail, only that the respondent picked it up upon arriving home. But the appellant did not cross-examine, and the ordinary inference that there was a letter box of the kind commonly encountered can readily be drawn. Letter boxes at residences are not necessarily locked, but malicious removal of mail is not lightly to be considered as a real possibility. The evidence was that the respondent collected the mail and divided it up, without participation of the children. I do not think that error has been shown in the judge’s finding, which in my opinion was correct.

Orders

49 I propose the orders -

1. Extend the time for filing the application for leave to appeal.

2. Grant leave to appeal and direct that the notice of appeal be filed within seven days.

3. Dismiss the appeal with costs.

50 IPP JA: I agree with Basten JA.

51 BASTEN JA: Between 1 March 2002 and 21 June 2004 a company, Merro Holdings Pty Ltd, of which the Opponent was a director withheld amounts on account of tax from the salary entitlements of its employees, but failed to remit those amounts to the Commissioner of Taxation (“the Commissioner”). Upon the company failing to make such payments, the Opponent, as a director, became liable automatically to a penalty equal to the amount which the company had failed to remit: Income Tax Assessment Act 1936 (Cth) (“the Assessment Act”), s 222AOC.

52 By letter dated 27 July 2004, the Commissioner gave notice to the Opponent of her liability and setting out ways in which it might be remitted. The Commissioner was required to take this step at least 14 days before commencing proceedings to recover the amount of the penalty: s 222AOE. By way of defence, the Opponent stated that she had not received the notice and was therefore not liable. During the course of the hearing in the District Court, it was accepted that the defence could succeed (if at all) only on the basis that the Opponent proved non-delivery of the notice.

53 In a judgment delivered on 27 October 2006, Quirk DCJ found on the balance of probabilities that the penalty notice had not been delivered and dismissed the Commissioner’s claim. The amount involved in the claim was $67,576, which amount, being below the statutory limit, necessitated an application for leave to appeal.

54 The primary case put by the Commissioner in seeking leave to appeal turned on the proper construction of s 222AOF(1) of the Assessment Act which, the Commissioner contended, provides that the obligation to give notice is satisfied merely by sending a notice by post to a director at an address which appears in the records of the Australian Securities and Investments Commission (“ASIC”). The primary case for the Commissioner also depended on the non-application of s 29 of the Acts Interpretation Act 1901 (Cth), being a provision which might provide an amelioration of the strict construction given to s 222AOF, by permitting the director to call evidence to establish non-delivery of the notice.

55 The operation of these provisions provides an important element in facilitating the recovery by the Commissioner of penalties on account of unpaid company tax. If the Commissioner’s contentions are correct, the judgment below was in error and the Opponent was liable for the penalty. Although these provisions (and analogous provisions in other statutes) have been the subject of earlier judicial consideration, the matters now raised have not been authoritatively determined. The question raised is one of public importance. In order to agitate the matters identified in the draft notice of appeal, the Commissioner requires an extension of time to excuse the late filing of the summons seeking leave to appeal and a grant of leave to appeal. The delay (which is a matter of weeks) has been explained by way of an affidavit filed for the Commissioner and the Opponent said nothing in opposition to the application: accordingly it is appropriate to grant the extension of time. It is also an appropriate case in which to grant leave to appeal.

56 For the reasons which follow, the appeal should be allowed and the judgment below set aside. In lieu thereof, judgment should be given for the Commissioner in the amount of the claim.

Statutory provision for giving notice

57 The Assessment Act provides that, before recovering a penalty from a director, the Commissioner must give notice setting out details of the liability and the available options to discharge the liability, in the following terms:

“222AOE The Commissioner is not entitled to recover from a person a penalty payable under this Subdivision until the end of 14 days after the Commissioner gives to the person a notice that:

(a) sets out details of the unpaid amount of the liability referred to in subsection 222AOC(1), (1A) or (2) (whichever relates to the penalty); and

(b) states that the person is liable to pay to the Commissioner, by way of penalty, an amount equal to that unpaid amount, but that the penalty will be remitted if, at the end of 14 days after the notice is given:

(i) the liability has been discharged; or

(ii) an agreement relating to the liability is in force under section 222ALA; or

(iii) the company is under administration within the meaning of the Corporations Act 2001 ; or

(iv) the company is being wound up.”

58 The key provision in issue in the present proceedings is the following section, s 222AOF, which provides for the method of giving notice. It reads:

“222AOF (1) If it appears from ASIC documents that a person is, or has been within the last 7 days, a director of the company, the Commissioner may give the person a notice under section 222AOE by leaving it at, or sending it by post to, an address that appears from such documents to be, or to have been within the last 7 days, the person's place of residence or business.

Note: Sections 28A and 29 of the Acts Interpretation Act 1901 are also relevant to giving a notice under section 222AOE.

(2) In this section:

‘ASIC document’ means a return:

(a) lodged with the Australian Securities and Investments Commission under section 205B or 345 of the Corporations Act 2001; or

(b) lodged with a person under a law that, for the purposes of the Corporations Act 2001, is a previous law corresponding to section 205B or 345 of that Act.”

59 In the present case, the Commissioner presented unchallenged evidence sufficient to engage the provisions of s 222AOF(1), namely that a notice had in fact been sent in accordance with s 222AOE, by posting it to the address of the Opponent given in a current ASIC record. That evidence, the Commissioner contended, satisfied the precondition to recovery of the penalty in circumstances where, again concededly, none of the steps referred to in s 222AOE(b) had been taken with the result that the penalty had not been remitted. The Commissioner further contended that any evidence given by the Opponent to the effect that the notice had not been delivered to her address on or about the time of its dispatch, on 27 July 2004, was simply irrelevant, as it did not challenge, nor did it purport to challenge, compliance by the Commissioner with s 222AOF.

60 The Opponent resisted this conclusion by reliance on s 29 of the Acts Interpretation Act which provides:

“29 Meaning of service by post

(1) Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2) This section does not affect the operation of section 160 of the Evidence Act 1995.”

61 Before considering the interrelationship of ss 222AOF of the Assessment Act and 29 of the Acts Interpretation Act, it is convenient to note two provisions in the Evidence Act 1995 (Cth). With certain exceptions, the Evidence Act (Cth) only applies in federal courts: see s 4, Evidence Act (Cth). However, ss 160 and 163 of the Evidence Act apply in the present proceedings: s 163 applies in a State court by virtue of s 5, whilst s 160 applies by virtue of s 182(4A) in relation to postal articles sent by a Commonwealth agency. The terms of s 160(1) should be referred to in order to understand the scope of s 29.

“160 (1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.”

62 Section 163 states, so far as relevant:

“163 (1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

(2) In this section: ...

‘letter’ means any form of written communication that is directed to a particular person or address ....”

63 As explained by Lindgren J in Deputy Commissioner of Taxation v Trio Site Services Pty Ltd [2007] FCA 776 at [26]- [30] it may be helpful to treat s 29 of the Interpretation Act as having two limbs, namely a deeming of the conduct sufficient to constitute service (the first limb) and a separate deeming of the time at which service is effected (the second limb): see also Alexander v Stocks & Holdings (Sales) Pty Ltd [1975] VicRp 83; [1975] VR 843 at 853 (25) (Lush J). So understood, the presumption in s 160 affects only the time, referred to in s 29(1) as the “time at which the letter would be delivered” and, in s 160 of the Evidence Act, as the day on which it would be “received” at the address to which it was posted. However, in considering whether s 222AOF demonstrates a “contrary intention” it is necessary to consider the cumulative effect of the two limbs of s 29(1). Taking the first limb separately, there is arguably no conflict between provisions which permit the giving of notice either by “sending it by post” or by “posting the document”. On the other hand, if the intention of s 222AOF is that the requirement in s 222AOE is satisfied by the dispatch of the document to the relevant address, then the implicit requirement of the delivery and fixing of the time at which service occurs by reference to the time at which delivery is presumed to occur, pursuant to the second limb of s 29(1), a clear element of conflict or contrariety is apparent.

64 In truth, the first limb of s 29(1) is unlikely to have separate significance. It requires the server to properly address, pre-pay and post the document, requirements which are unlikely to add much to the statutory provision which is the precondition to the operation of s 29 and is identified as a provision which authorises or requires the document to be “served by post”. Such a provision is s 28A of the Interpretation Act itself, which provides that any other provision which merely uses the expressions “serve”, “give” or “send” may be satisfied by sending the document to the last known address of the place of residence or business of the intended recipient: Acts Interpretation Act, s 28A(1)(a)(ii). That is, if anything, more specific than the first limb of s 29(1). However, s 28A has no equivalent to the temporal element in the second limb and the two provisions may therefore both operate, in relation to a third provision in another Act.

65 The Commissioner treated s 28A as providing an alternative mechanism for giving a notice under s 222AOE, in circumstances where s 222AOF was not relied upon. The provisions were alternative at least in the sense that s 222AOF of the Assessment Act provided for service at an address found in a current ASIC document, whereas s 28A of the Acts Interpretation Act identified as the relevant address the last known place of residence or business of the person. Section 28A was not relied upon in the present case.

66 Before returning to the question whether s 222AOF reveals a “contrary intention” to that which may be derived from s 29 of the Acts Interpretation Act, it is necessary to consider the proper approach to such a question. The search for a “contrary intention” in an Interpretation Act does not engage any presumption that, in the absence of an express intention to the contrary, Parliament intended both a general provision in the Interpretation Act and a provision in a separate Act to have concurrent operation: cf Deputy Commissioner of Taxation v Dick [2007] NSWCA 190 at [18] (Spigelman CJ), [85] and [115]-[122] (Santow JA) and [139]-[141] in my judgment. The Acts Interpretation Act is replete with provisions recognising that a contrary intention may appear in legislation to which the Act would otherwise apply. Reference to a “contrary intention” is to be found in many provisions, including ss 28A and 29, but also in s 2 which provides:

“2 (1) Except so far as the contrary intention appears, this Act applies to all Acts, including this Act.”

67 The phrase “contrary intention” in the Acts Interpretation Act may readily be seen to give way to a particular provision in another Act, and especially one dealing with a specific subject matter. Arguably greater restraint should be exercised in finding a “contrary intention” in relation to a definition in a particular Act, lest the task of the drafter become unduly difficult and meaning unnecessarily uncertain: see Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006) at [6.1]; Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 at 108F-109F (Mahoney JA) and see Buresti v Beveridge (1998) 88 FCR 399 at 401-402 (Hill J). However, a clear contrary intention can be revealed without express reference to s 29: see, dealing with that phrase in the Interpretation Act 1987 (NSW), Forsyth v Deputy Commissioner of Taxation [2004] NSWCA 474; (2004) 62 NSWLR 132 at [28] (Spigelman CJ, Giles JA and Gzell J agreeing). Provisions such as ss 494A and 494B of the Migration Act 1958 (Cth) demonstrate a contrary intention with unmistakeable clarity, but they do not expressly refer to s 29.

68 Of immediate application in the present case is the approach adopted in relation to similar legislation in Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87. In that case the High Court considered the operation of s 39(1) of the Acts Interpretation Act 1956-1962 (Qld) which was in terms comparable to s 29 of the Acts Interpretation Act (Cth). The application of that section was addressed in the context of s 42 of the Hire-Purchase Act 1959 (Qld) which made provision for a notice to be served on or given to an owner or hirer. One available mechanism was by posting the notice to the last known place of abode or business: s 42(1)(c). However, the section also had the following provision:

“42 (2) The affidavit or oral evidence of an owner or his servant or agent as to the delivery or posting of any notice or document required to be served by this Act shall be admissible as prima facie evidence of the due service of the document or notice if the deponent swears to the facts necessary to prove due service either from his own knowledge or to his information and belief based on and verified by the records of the owner.”

69 The appellants, who were the hirers under the relevant agreements, resisted payment of outstanding moneys on the basis that they had not been properly served with notices required under the Hire-Purchase Act. Their first submission was that the notices sent to them “c/- Post Office, Sapphire, Q” were not sent to a place of abode or business. The Court held that s 42(1)(c) had been complied with: pp 94-95. Their second argument was identified as follows (p 95):

“The appellants swore that they did not receive the notices but it was not contended that this amounted to proof that they were not served with them. Such a contention would have been difficult having regard to the fact that there is nothing to show that the notices were not delivered as addressed and having regard to the fact that s 42(1) clearly contemplates in pars (b) and (c) service other than personal service.

[The Court then set out s 39(1) of the Acts Interpretation Act (Qld) and continued:]

In the present case, the notices were not returned undelivered and there was no other circumstance which suggested that they did not reach their destination. Hence under s 39(1)(b) service is deemed to have been effected at the time when the notices would have been delivered in the ordinary course of the post.”

70 The Court considered whether s 39(1), which was subject to an expression of contrary intention in another Act, was displaced by s 42(2) of the Hire-Purchase Act. The Court held that it was not, a conclusion relied upon by the Opponent in the present case to support her argument that s 222AOF demonstrated no contrary intention to that expressed in s 29(1).

71 Whilst it is true that the High Court found no contrary intention, the purpose for which that exercise was undertaken was to see if deemed delivery were sufficient or whether there might be some indication in s 42 of the Hire-Purchase Act of a requirement for actual receipt of the documents. In that regard the Court concluded (pp 95-96):

“In referring to ‘prima facie evidence’ of due service, s 42(2) is not intended to allow evidence of service by the means provided by s 42(1)(b) and (c) to be rebutted by proof of non-receipt. Sub-section (2) is merely intended to allow evidence to be called to rebut evidence of the doing of those acts which are deemed by s 42(1) to constitute service. Paragraphs (b) and (c) of s 42(1) contemplate the possibility of something less than actual receipt by the person to be served.”

72 The Court then referred to a line of English authority suggesting that proof of non-delivery may be sufficient to rebut the presumption of delivery in the ordinary course of the post and, in the absence of any presumption of delivery at any other time, thereby establish non-service. The Court commented (p 97):

“It may be thought that there is an anomaly in such a result because it means that, notwithstanding the adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery.”

73 Despite references to “non-receipt” in the English judgments, the High Court confirmed that the relevant issue was “non-delivery” and stated:

“As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery.”

74 In considering the nature and extent of the information required to be included in the notice, for the purposes of s 222AOE, the High Court noted in Deputy Commissioner of Taxation v Woodhams [2000] HCA 10; (2000) 199 CLR 370 at [34]:

“The primary source of guidance as to the statutory purpose of the notice before action required by s 222AOE is to be found in s 222ANA. Division 9 seeks to achieve the object that either the deducted amounts are remitted or paid to the Commissioner or the company is promptly taken out of the control of the directors and dealt with under the insolvency laws.”

Although of no direct relevance for present purposes, the High Court overruled the decision of this Court in Deputy Commissioner of Taxation v Gruber [1998] NSWSC 64; (1998) 43 NSWLR 271 in relation to the supposed requirement that the notice was required to set out the due dates of amounts to be remitted: at [39]. (To the extent that, despite reservations, the Victorian Court of Appeal had followed Gruber in Deputy Commissioner of Taxation (Cth) v Woodhams [1998] VSCA 126; (1998) 148 FLR 230, that decision was also overruled.)

75 Following that line of reasoning, it may be noted that the role played by s 222AOE in the broader scheme of Part 6, Div 9 of the Assessment Act, is to allow a director an opportunity to have a penalty remitted, either by discharging the liability, entering into an agreement with the Commissioner or commencing winding-up of the company. It is clear that the allowance of only 14 days notice in which to take such steps is intended to impose a tight timetable with the real possibility of inflicting hardship on a director: see Deputy Commissioner of Taxation v Saunig [2002] NSWCA 390; (2002) 55 NSWLR 722 at [29] (Heydon JA, Sheller JA and Gzell J agreeing). Nevertheless, s 222AOF reveals a clear intention that the Commissioner will satisfy the precondition to the entitlement to recover the penalty if a notice is sent by post to the director’s address as found in ASIC records. The risk of the notice going astray in the post has been treated as tolerable, in order to effect the policy underlying the scheme. The greater risk may be seen to lie in failure to ensure that ASIC records are up to date, but in that case the responsibility must be borne by the director and not by the Commissioner.

76 The fact that the precondition may be satisfied merely by posting a notice to the required address, takes service a step further away from ensuring receipt by the individual recipient, than does s 29. Nevertheless, s 29 was not concerned with receipt as such, but only delivery to the nominated address. Thus the potential hardship identified by the Opponent as resulting from reliance upon s 222AOF without permitting a role for s 29 may prove too much to the extent it depended upon absence of receipt. Section 29 in effect imposes on the intended recipient responsibility for ensuring that the document does not go astray after delivery to the postal address. A provision such as s 222AOF also places the risk of loss within the postal system on the intended recipient. That risk may be extremely low, but it is not non-existent; the potential for unfairness arises because the intended recipient has no control over the postal service. Nevertheless, the intended result is clearly expressed and must be given effect: see McCallum v Purvis [1906] VicLawRp 99; [1906] VLR 578 at 583 (Hood J), and In re 88 Berkeley Road, NW9; Rickwood v Turnsek [1971] Ch 648 at 653-654 (Plowman J) applying R v Westminster Unions Assessment Committee [1917] 1 KB 832, approved in Fancourt at 96. No doubt a director can seek to challenge the Commissioner’s evidence as to sending by post to a relevant address – an exercise undertaken, unsuccessfully, in Forsyth: see [2004] NSWCA 474; 62 NSWLR 132 at [57]- [63]. That was not attempted in this case.

77 The Commissioner sought support for this result in dicta in this Court in Deputy Commissioner of Taxation v Gruber [1998] NSWSC 64; (1998) 43 NSWLR 271 at 276G-277C (Stein JA, Powell JA and Sheppard AJA agreeing). At 277B-C, his Honour stated:

“The Commissioner submits that s 222AOF was complied with and therefore the notices were validly served. Reliance is placed on what was said by Lee J in Deputy Commissioner of Taxation v Taylor [1983] 2 NSWLR 139 at 143:

‘But the very fact that a mode of service other than personal service is permitted, of itself ordinarily means that service will be complete when the requirements stipulated for service have been fulfilled.’

In my opinion the statement by Lee J is apposite to s 222AOF.”

78 Because in Gruber both notices were held to be invalid for other reasons, this statement was obiter. Furthermore, the reliance on Taylor’s case went no further than to establish the proposition that, although the purpose of “service” is to bring a document to the notice of the intended recipient, statutory provisions which deem service to have occurred in particular circumstances will not fail in their purpose because of evidence of non-receipt. The service provision under consideration in Taylor was similar to s 29 of the Acts Interpretation Act. Further, in Gruber Stein JA continued at 277E-F:

“Should it be necessary to refer to or rely upon s 28A and s 29 of the Acts Interpretation Act 1901 (Cth) (see the ‘Note’ specifically included within s 222AOF) then the presumptions inherent in the sections apply and are not displaced by the respondent’s evidence of non-receipt.”

79 It is apparent that Gruber provides only limited support for the Commissioner in respect of the present argument. Indeed, Gruber is against the Commissioner’s position in so far as it left open the possibility that the “Note” to s 222AOF picked up ss 28A and 29 of the Acts Interpretation Act. Section 222AOF, with the note, was inserted in the Assessment Act by the Insolvency (Tax Priorities) Legislation Amendment Act 1993 (Cth), s 16. Section 950-100 of the Income Assessment Act 1997 (Cth) (“the 1997 Act”) provides that “the notes and examples (however described) that follow provisions of this Act” form part of “this Act”. The Dictionary to the 1997 Act defines “this Act” to include the Assessment Act: accordingly the note to s 222AOF of the Assessment Act forms part of the section, thus displacing the general rule to the contrary found in s 13(3) of the Acts Interpretation Act. However, the note does not purport to qualify or affect the operation of s 222AOF: it refers to a further means of giving notice under s 222AOE.

80 Of greater assistance is the decision of this Court in Deputy Commissioner of Taxation v Nercessian [2006] NSWCA 268; (2006) 67 NSWLR 215, handed down after argument in the District Court in the present case. The issue in Nercessian was whether the Commissioner was required to search beyond the electronic database maintained by ASIC for the purpose of identifying the address to which a notice might be sent under s 222AOF. Santow JA (Mason P and McColl JA agreeing) held that it was sufficient if the relevant address appeared from the electronic database, stating at [31]:

“Therefore, in terms of s 222AOF, the relevant notices were ‘given’ to Raffie Nercessian by sending them by post to the address that ‘appears’ from the ASIC documents (being the MASCOT database) to be his place of residence, as established by the Deputy Commissioner of Taxation’s search of that database. That satisfies the requirements of s 222AOF... .”

81 Because the question in Nercessian was identification of the appropriate address, the Commissioner had put forward an alternative approach which relied upon s 28A and, at least incidentally, s 29 of the Acts Interpretation Act, thus permitting service by sending a notice to the last known address of the intended recipient. Santow JA set out the argument relied upon by the Commissioner (at [34]) but concluded that it was not necessary to approach the matter on that basis. His Honour concluded at [36]:

“Dealing only with the legal arguments for or against the potential application of s 28A, I would express the provisional view that s 28A (and s 29) are capable of application as alternative modes of satisfying s 222AOF [intending to refer to s 222AOE?] of the Income Tax Assessment Act 1936 (Cth) where the notices are posted in conformity with those provisions to the last-known place of address.”

82 Although the point in issue in Nercessian was not that now before this Court, it appears that the Court accepted the Commissioner’s argument that s 222AOF provided a self-contained means of satisfying the precondition to recovery specified in s 222AOE, and was not itself subject to the operation of s 29. (See also Forsyth at [59].)

83 Some further support for the Commissioner’s construction of s 222AOF may be found in Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361. That case involved service of a rate notice under the Local Government Act 1993 (NSW) which permitted service “by posting the notice by pre-paid letter addressed to the last known place of residence or business or post office box of the person to be served”: s 710(2)(c). The question was whether that provision not only identified the relevant act of service (posting the notice), but also identified the time of service, namely the time at which the act occurred. Tobias JA (with whom Ipp JA and Brownie AJA agreed) held that it did, stating at [35]:

“There seems to me to be no reason why the act of posting in accordance with s 710(2)(c) should not have the same effect as to the completion of service as do the other modes of service referred to in the subsection. Provided the letter is pre-paid and properly addressed in accordance with the paragraph, it is the act of posting that constitutes service and, once posted, the act of service is complete and the time of completion is self-evident.”

84 The Court held that the provision relating to the time at which service by post is taken to have been effected, to be found in s 76(1) of the Interpretation Act 1987 (NSW), did not operate because the Local Government Act expressed a “contrary intention” within the meaning of s 5(2) of the Interpretation Act, being a general provision equivalent to s 2(1) of the Acts Interpretation Act 1901 (Cth).

85 Although each provision must be viewed in its own terms and statutory context, Kyogle provides significant support for the approach contended for by the Commissioner. Section 710 of the Local Government Act provided a number of methods of service, in addition to personal service: all but two involved physical transmission to the person or premises. In the case of one of the exceptions, namely deposit in a document exchange, express provision was made for service to be taken to be effected two days after the day on which the deposit occurred, until the contrary were proved: s 710(3). The inference that in the other case (service by post) the drafter might have relied upon the general provision in s 76(1) of the Interpretation Act was rejected. A similar conclusion was reached by Hope J in relation to an earlier provision, namely s 628 of the Local Government Act 1919 (NSW) in Cousins v Gosford Shire Council (1970) 92 WN(NSW) 263 at 269-271, referred to with approval in Fancourt.

86 In the present case, no issue arises in relation to the date on which notice was given. Section 163 of the Evidence Act clearly envisages that the date on which a letter is “sent”, as opposed to the date on which it was “received” – see s 160 – may be critical. In this case s 163 would have had no application because there was clear evidence as to the date on which it was sent. It is not necessary to consider how the Evidence Act may assist a person who is required to do things within a particular time based on a contemporaneous assessment of the period available. It is sufficient to dispose of the present appeal to conclude that the statutory precondition to recovery under s 222AOE was satisfied by sending the notice by post to the relevant address. There was no challenge to the evidence adduced by the Commissioner that it was so sent.

Alternative approach

87 On the construction of s 222AOF accepted above, evidence adduced for the Opponent that she collected all mail delivered to her home address and that she did not receive the notice sent by the Commissioner would be irrelevant. Although the evidence appears to have been directed to establishing non-receipt (as pleaded), it was treated by the trial judge as relevant to non-delivery. However, even the question of non-delivery is irrelevant if the statutory precondition to recovery is satisfied by the act of sending the notice in accordance with the statutory prescriptions.

88 Even if non-delivery were relevant, the Commissioner sought to contend that evidence of non-receipt was not evidence of non-delivery, in accordance with the approach adopted by the High Court in Fancourt v Mercantile Credits.

89 The Opponent accepted that mere evidence of non-receipt would not be capable of overcoming the statutory presumption of delivery. Nevertheless, she submitted that the combination of non-receipt, together with specific evidence of a system for collecting and distributing all mail delivered was capable of overcoming the presumption.

90 Although the grounds of appeal were expressed in terms of the capability of the evidence for the intended purpose, the Commissioner ran a further argument attacking the inference drawn by the primary judge on the facts of the case. This submission was not foreshadowed either in the written submissions or in the draft notice of appeal, but the Commissioner contended that the Court should address it, as an alternative basis for overturning the judgment below.

91 The present appeal being by way of rehearing, pursuant to s 75A of the Supreme Court Act 1970 (NSW) and there having been no oral evidence before the primary judge, it would no doubt be open in an appropriate case for this Court to consider whether there was error demonstrated in the approach taken to the evidence at trial and for this Court to draw its own inferences from the available written material. Nor was it suggested that any further evidence would have been relied upon by the Opponent, if this ground of challenge had been properly foreshadowed.

92 In my view it is not necessary, nor appropriate, for the Court to embark on these questions. Statements to be found in the authorities that evidence of non-receipt is not evidence of non-delivery may be open to further analysis in an appropriate case. Assuming that a document was sent by post, evidence that it was not received by the intended recipient, if accepted, may, depending on the circumstances, give rise to an inference that it was not delivered, either in the ordinary course of the post or at all. The proper assessment of such evidence and its effect in the context of a statutory presumption, should be addressed in circumstances where that is necessary for the resolution of the appeal.

Conclusions

93 Whether any orders were entered is unclear. The parties proceeded in this Court on the basis that the relevant orders were to be gleaned from the following statements at the conclusion of her Honour’s judgment of 27 October 2006, namely:

“As the service of the penalty notice is a prerequisite to the enforcement of the liability of the defendant by the plaintiff, the statement of claim should be dismissed. ... The plaintiff to pay the defendant’s costs but for the other orders made, I think, in the interlocutory matters which are not disturbed by this order.”

94 In the draft notice of appeal, which must now be filed within seven days, the Commissioner assumed that her Honour had made an order “entering verdict for the defendant”. Apart from the fact that it is usual to enter judgment based upon a verdict of a jury, this was not the language her Honour adopted. Given the uncertainty, it is preferable simply to set aside the orders made on 27 October 2006 in the District Court.

95 The draft notice of appeal also seeks a judgment for the Commissioner in the sum of $77,873.47. That was not the amount sought in the statement of claim and presumably includes an amount by way of pre-judgment interest, though the date to which the calculation extends does not appear from the notice or from the Claimant’s submissions. The Commissioner should have a judgment for the amount of the penalty, together with interest. If the parties are unable to agree on the calculation of interest, the matter can be remitted to the District Court for it to resolve any such dispute, in the unfortunate result that no agreement is reached.

96 Accordingly, I would propose the following orders:

(1) Grant leave to appeal.

(2) Direct that the Commissioner of Taxation file a notice of appeal in accordance with the draft notice of appeal which accompanied the leave application within seven days of the date of this judgment.

(3) Allow the appeal and set aside the judgment and orders in the District Court made on 27 October 2006.

(4) In lieu thereof:

(i) give judgment for the plaintiff in the amount of $67,576 together with interest to be calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW);

(ii) without disturbing any costs orders made prior to 27 October 2006, order that the defendant pay the plaintiff’s costs in the District Court.

(5) Order that the Opponent pay the Claimant’s costs in this Court.

(6) Grant the Opponent a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the appeal.

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LAST UPDATED: 10 December 2007

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