The Second Notice
51 The primary judge accepted that the Second Notice is less explicit insofar as it attempts to identify the customers the Notice seeks to address: R [180].
52 Before the primary judge (R [157]), and again on appeal, ANZ contended that in para 2, second appearing, the expression "any identifiers", and the expression in para 3 "any identifiers of the officers of the customer", where the customer is not a natural person, are too uncertain to make the Notice capable of being complied with.
53 At R [185] the primary judge concluded:
I do not accept ANZ's submission that the reference to 'any identifiers' in paragraphs 2 and 3 of the Second Notice is uncertain.
54 We agree with the primary judge's conclusion that the references to "any identifiers" in both paras 2 and 3 do not render uncertain the information sought from ANZ; as his Honour went on to say (at R [185]):
… it means any piece of information in the GIW that ANZ can identify, that might be used to identify the customer, such as the customer's date of birth, gender, telephone number or address [and] [w]here the customer caught by the criteria is a company, and ANZ has details of 'identifiers' of officers of that company in the GIW, then it must provide that information.
55 On the other hand, in the case of para 3, it is in the Second Notice's use of the defined term "Officer", that uncertainty arguably arises. At R [158], the primary judge said:
Paragraph 3 [of] the second notice requires ANZ to identify the officers of the customer. ANZ argued that it would have to know where each corporate customer was incorporated or registered so as to identify who might be an officer within the meaning of the legislation which authorises the incorporation or registration. That, it was said, would require ANZ to search in any jurisdiction in which the corporate customer might have been incorporated.
56 Having regard to the definition of "Officer" for the purposes of the Second Notice, in particular the words:
… or any equivalent provision under the relevant legislation where the entity has been incorporated, established, licensed and/or registered
the submission of ANZ recorded at R [158] must be correct, but his Honour does not seem to have returned to address the submission.
57 The validity of the Notice on the ground of the certainty of the information it requires to be furnished, must stand or fall on the terms of the Notice.
58 If the Notice had defined "Officer" as being any person designated in the GIW as a director, secretary and/or servant of the customer, there may well have been sufficient certainty and no difficulty. But that is not this case.
59 The Second Notice is, in our view, uncertain in relation to so much of the information it seeks in paras 3, 4, 5 and 6 which refers to "officers" or "officer" of the customer. While the recipient of the Second Notice may without difficulty have assumed that the references to "officer of the customer" in paras 4, 5 and 6 were limited to cases where the entity was other than a natural person and may have assumed further that "officer" in those paragraphs included the plural "officers" as referred to in para 3, that is only the beginning of the task.
60 The Second Notice requires the recipient of it to go to the relevant Vanuatu legislation to work out which of the three statutes applies and then to examine the definitions of "officer", "director" or "agent" bearing in mind that the definition in the Second Notice includes reference to a "director, secretary and/or a servant of the customer". For a corporate entity which is not incorporated in Vanuatu, having ascertained the place of incorporation, establishment, licensing or registration the recipient is in each case to go to the other body of legislation identified by that place. Having worked out what is the relevant equivalent legislation, the recipient is then required to work out what are the provisions in that legislation equivalent to the matters in the Vanuatu legislation, and then work out from that legislation whether a person is or is not an officer under those definitions "as the context requires", again bearing in mind that the definition includes reference to a "director, secretary and/or a servant of the customer".
61 We accept the appellant's submission that the Second Notice requires the addressee to work out what are the positions in a corporate customer which, under the various systems of law that are applicable, would fall within the concept of "officer", and then to work out who are the persons within the GIW who occupy those various positions. That being the case, in our opinion, subject to severance, the Second Notice is uncertain.
62 The respondent submitted that the recipient of the Second Notice was required to go to the GIW and to see whether there was any entry in any of the fields in the GIW which matched the definition of "Officer" but, in our opinion, that is merely to restate the problem.
63 The Second Notice is uncertain because it does not sufficiently delineate, by criteria provided in the Notice and by reference to information known by the appellant, the information that the appellant is to produce. Rather, in order to answer the Notice, the appellant must undertake the task we have described above involving permutations and combinations to determine information not already known to it or otherwise identifiable from the GIW. The Second Notice essentially requires the appellant to undertake the task that was cautioned against in Fieldhouse, namely, to construe provisions of legislation, rather than answer the Notice by reference to words of ordinary English usage: see at 198 per Lockhart J; see also 211-212 per Hill J. The Second Notice is not therefore framed in terms consistent with the clarity which the parties accepted was required of it. It leaves too much of its meaning and application to be worked out by the appellant. The issue is not one of the mere difficulty of the task or the mere burden of compliance but is the number and nature of the judgments or appraisals which the appellant is required by the Second Notice to make.
64 The question which then arises is whether the uncertain parts of the Notice can be severed or whether the uncertainty infects the whole of the Notice. In our opinion it is not possible to delete the references to "officers" or "officer" in paras 3, 4, 5 and 6 nor the material under the word "Officer". The latter material cannot be disentangled. As to the former references, a contrary view would involve deleting para 3 entirely and all references to entities which were not natural persons. On the face of the Second Notice this requirement is central. To sever would be to give the Second Notice a new operation for the purpose of saving it. Further, in this respect, we are of the view that we are entitled to have regard to the covering letter to the Second Notice, not to construe the terms of the Second Notice, but to identify its purpose. The purpose of the Second Notice is identified in the third paragraph of the covering letter and it is clear that the information sought in paras 3, 4, 5 and 6 of the Second Notice is central to that purpose.
65 In these circumstances, we are of the view that ANZ should not be put to the task of disentangling the valid and invalid components "by delicate papyrian exercises with scissors and paste" or undertaking "abstruse questions of construction demanding the extraction (and performance) of some valid obligation from a matrix of invalidity": Fieldhouse at 195 per Lockhart J and at 204 per Burchett J.
66 For these reasons, we conclude that the Second Notice is invalid for the uncertainty of the information it requires ANZ to furnish and that that uncertainty so infects the Second Notice that the invalidity cannot be cured by severance of the offending parts.