AUSTRALIAN TRADE COMMISSION v SOLAREX PTY LIMITED

NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.319 of 1987

On appeal from the General Administrative Division of the Administrative Appeals Tribunal

Respondent CORAM: NEAVES, BEAUMONT and WILCOX JJ PLACE: SYDNEY DATE: 1 DECEMBER 1987

2. The applicant pay to the respondent its costs of the appeal.

Note: Settlement and entry of orders 1s dealt with in Order

NEW SOUTH WALES DISTRICT REGISTRY No. G 319 of 1987

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN : AUSTRALIAN TRADE COMMISSION Applicant AND: SOLAREX PTY LIMITED Respondent

CORAM: Neaves, Beaumont and Wilcox JJ. DATE: 1 December 1987

This 18 an application by the Australian Trade Commission ("the Commission") by way of appeal from a decision of the General Administrative Division of the Administrative Appeals Tribunal given on 16 June 1987. By that decision, the Tribunal, by majority, set aside a decision of the Commission under the Export Market Development Grants Act 1974 (Cth) ("the Export Grants Act") refusing to determine whether Solarex Pty Limited ("the company") had an entitlement to a grant under that Act in respect of the period (called a "grant year") which commenced on 1 July 1984 and ended on 19 May 1985. The

Tribunal remitted the matter to the Commission with a direction

that the amount of the company's grant entitlement in respect

The ground upon which the Commission had refused to determine whether the company was entitled to a grant in

respect of the above period was that a claim for a grant had not been submitted by the company to the Export Development Grants Board ("the Board") within the statutorily prescribed

immediately prior to 16 October 1985 was in the following

""(1) A person desiring to obtain a grant shall submit a claim to the Board.

shall be submitted in the form and manner approved by the Board.

(2A) A claim relating to a grant year shall be submitted within 5 months after the end of

that year, or within such further time as_ the Board allows.

(3) A claim shall be deemed not to have been submitted until 1t has been received by the Board or has been received on behalf of the Board by a member of the staff assisting the Board or by a person appointed by the Board to receive claims under this Act.

(4) The Board may refuse to consider a claim unless the claimant supplies such further information, or makes available to the Board such books, records or documents, as the Board specifies, being information, books, records or documents that' the Board requires for the performance of its functions under this Act."

"Grant year" was defined i1n sub-s.3(1) to mean the year commencing on 1 July 1974 or any of the 13 next succeeding

The Board was required to consider every claim duly made and to determine whether the claimant had ai grant entitlement and, 1f so, the amount of that entitlement (sub-s.12(1)). Where the Board determined that a claimant had a grant entitlement and the amount of that entitlement, a grant equal to the amount so determined was payable to the

On 16 October 1985 the Export Market Development Grants Amendment Act 1985 (Cth) received Royal Assent. By that Act, s.13 of the Principal Act was amended by omitting sub-s. (2A) and substituting sub-ss(2A) and (2B). Sub-section (2B) is of no relevance tor present purposes but

"(2A) A claim relating to a grant year shall be submitted -

(a) in the case of acclaim relating to a grant year other than the grant year

referred to in paragraph (b) - within 5 months after the end of that grant year; and

(b) in the case of a claim relating to the grant year commencing on 1 July 1984 - on or before 30 November 1985."

The amendment so effected was deemed to have taken effect on

"(a) the year commencing onl July 1974 or any of the 9 next succeeding years;

(b) the period commencing on 1 July 1984 and ending on 19 May 1985;

(c) the period commencing on 20 May 1985 and ending on 30 June 1986; or

(d) the year commencing onl July 1986 or any of the 3 next succeeding years;".

Australian Trade Commission Act 1985 (Cth), a provision

Commonwealth of Australia Gazette 1985 No.S.551). The functions of the Commission included administering the Export Grants Act (see s.8(a)(viii)). On the same date, 6

January 1986, relevant provisions of the Australian Trade

Commission (Transitional Provisions and Consequential

Amendments) Act 1985 (Cth) came into operation. By those provisions "the Commission" was substituted for "the Board" 1n the Export Grants Act. Sub-section 44(2) relevantly provided that, where a claim for a grant had been submitted to the Board under the Export Grants Act as in force at any time before the commencing day (6 January 1986) but the Board had not determined that claim before that day, the claim might be dealt with under that Act as amended and in force on and after that day by the Commission as 1f 1t had

Before the Tribunal, the company contended that the claim for a grant under the Export Grants Act had been despatched by post on 30 October 1985 in an envelope, postage prepaid, addressed to the Board at its private post box number at the Royal Exchange Post Office at Sydney. Thereafter, the company had assumed that the claim had been received by the Board. However, on 8 July 1986 a telephone call to the Commission's offices revealed that there was no evidence of its receipt. The Commission contended that the

A majority of the members of the Tribunal, after reviewing the evidence, found that, on the balance of probabilities, the claim was posted to the Board on 30 October 1985 1n a manner and form which was sufficient in the ordinary course of post for it to reach the Board within the necessary time and that it was not returned to the company as undelivered mail. Further, the members of the Tribunal forming the majority considered that the material before the Tribunal, including material relating to the handling of mail during a mail strike in Sydney from 18 to 28 October 1986 and in the period immediately thereafter, did not raise a reasonable possibility that the envelope was lost whilst 1t was in the custody of the Australian Postal Commission. Indeed, they considered that the material before them led to the strong probability that mail posted

on 30 October 1985 would have been delivered before 30

November 1985. Those members of the Tribunal then posed for

themselves the question what had happened to the claim on the assumption that the envelope had been placed in the Board's private post box at the Royal Exchange Post Office. On that assumption, they concluded, on the balance of probabilities, that 1t was mislaid by some means unknown. They expressed themselves as being "quite unconvinced" by the material which had been presented on behalf of the Commission to establish that the claim had not, in fact,

Dealing with the question whether the company had established that the claim "had been received by the Board"

as required by sub-s.13(3) of the Export Grants Act, the

"We are prepared to find on the facts that delivery should be presumed because the common law presumption of delivery in the ordinary course of post operates in the absence of any evidence of non-delivery (e.g. return to sender or proved loss)".

As they were of opinion that the presumption of delivery at the private post box in the ordinary course of post had not been rebutted by positive evidence of non-delivery, the majority of the Tribunal concluded that the claim had been

was the first of the grounds stated in the notice of appeal

filed on behalf of the Commission. That ground is that' the

Tribunal "erred in law in adopting the common law presumption of 'delivery in the ordinary course of post' for the purpose of determining whether the respondent's claim for the 1984/85 year had been 'received' within the meaning

of section 13(3) of the Export Market Development Grants Act 1974".

There can be no doubt, and it was not argued to the contrary, that, in order to establish entitlement to a grant under the Export Grants Act, a claimant must show that the claim ror the grant was received by the Board within the prescribed time. That 1s clearly the effect of sub-s.13(3)

As has already been mentioned, the members of the Tribunal forming the majority expressed themselves as being satisfied that the claim had been duly posted and that it had not been returned undelivered. They were unconvinced by the material put forward by the Board in order to show that the claim had not, in fact, been received. The Tribunal also had material before 1t as to the course of business adopted by the Australian Postal Commission to ensure

delivery of mail in the circumstances prevailing at the relevant time. The question is whether the members of the Tribunal were entitled, upon those findings and that material, to infer that the claim had been received by the Board within the prescribed time. The answer to that question must be in the affirmative unless the relevant

The Commission relied upon sub-s.13(3) of the Export Grants Act as having that effect either expressly or

by necessary implication. it was submitted that the sub~section requires, not only an affirmative finding that the claim has been received by the Board, but that the finding to that effect be based upon direct evidence of such receipt. The Court should, it was submitted, adopt a Similar approach to the requirements of sub-s.13(3) as was taken by Toohey J. in relation to ss.188 and 189 of the Income Tax Assessment Act 1936 (Cth) in Raccuia v. Deputy Commissioner of Taxation (1984) 4 F.C.R. 437 at 440. In that case his Honour expressed the opinion, without elaboration, that the rule of the common law regarding proof of delivery of letters had to yield to the express provisions of those sections of the Income Tax Assessment

I am unable to agree that sub-s.13(3) of the Export Grants Act has the effect for which the Commission contends. The provision 18 concerned only with prescribing the requirement that must be satisfied before a claim for a grant will be considered. It is not concerned to prescribe the kind of material by reference to which that requirement 1s to be satisfied nor to prescribe the reasoning processes which may be employed in considering the question. Those are matters for the primary decision-maker and, on review, for the Tribunal. In relation to the reliance that was

placed on Raccuia v. Deputy Commissioner of Taxation

\supra), 1 1s sufficient to say that the legislation with

which that case was concerned was expressed in quite

different language from that of the provision now under

not err in law in arriving at the conclusion that the

company's claim had been received by the Board in proper

the preceding 8 pages are a true copy of the Reasons for Judgment herein of the

) NEW SOUTH WALES DISTRICT REGISTRY ) No. G319 of 1987

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: AUSTRALIAN TRADE COMMISSION Applicant AND: SOLAREX PTY. LIMITED Respondent

BEAUMONT J. I agree with Wilcox J., for the reasons he

It is necessary to distinguish the requirement of $.13(3) of the Export Market Development Grants Act 1974 that the Board has received the claim, on the one hand, from the method of proof of that fact, on the other. One is substantive; the other is adjectival. It 1s not, and could not be, disputed that receipt by the Board must be established. The only issue, one of fact, is whether, on the whole of the evidence, receipt was

The majority of the Tribunal (Mr. R.C. Jennings 0.C. and

Mr. C.J. Stevens) found, as a fact, that the claim was posted;

and that it was not returned undelivered or lost or destroyed in transit (cf. Fancourt v. Mercantile Credits Ltd. (1983) 154 C.L.R. 87 at p.95). The majority further expressed dissatisfaction with the evidence called in an effort to establish that the claim had not been received by the Board (see at pp.12-13 of their reasons). The Tribunal, calling in aid the common law presumption of delivery in the case of a posted

document, Found that the claim had been duly received.

Administrative Appeals Tribunal Act 1975, no error of law has

been demonstrated. The question is essentially one of fact. The Tribunal was not bound by the rules of evidence and may inform

itself on any matter in such manner "as 1t thinks appropriate"

It is trite law that there is a prima facie presumption of fact that an envelope addressed and posted and not afterwards returned reached its destination in the ordinary course of post

(see Cushing v. The Lady Barkly Gold Mining Company Registered

(1883) 9 V.L.R.(E) 108 per Holroyd J. at p.122; James v. Twiss €1929] S$.A.S8.R. 110 per Murray C.J. at pp.116-7; Smith Brothers v. Madden Brothers (H. Ct. of A.) (1945) Q.W.N. 39 per Dixon J. at p.45). The presumption, as Wilcox J. points out, is derived from the conventional wisdom that proof of the general course of any business is some evidence that the general course was followed in the particular case (see Connor v. Blacktown District Hospital €1971] 1/N.S.W.L.R. 713 per Jacobs J.A. at pp.715-6;

per Asprey J.A. at p.721; Trade Practices Commission v. T.N.T.

Management Pty. Ltd. (1983) 56 A.L.R. 647 per Franki J. at p.703;

Cross on Evidence, 3rd Aust. ed. (D.M. Byrne, Q.C., J.D. Heydon

At the adjectival level, it was open to the Tribunal to apply this presumption here. This would be so even if the Tribunal were bound by the rules of evidence. The applicant can

only succeed if, on the true construction of the Export Market

Development Grants Act the presumption is not available.

It is true that s.13(3) requires that receipt by the Board be established. But, as has been said, this 18 a substantive provision. . It does not address the different question, adjectival in character, as to how such receipt may be demonstrated. That, understandably, is left at large so that it was open to the respondent to prove that fact by any means.

There is no provision in the Export Market Development Grants

Act, express or to be implied, restricting the method of proof of receipt of a claim by the Board. It was open to the Tribunal, therefore, to apply the presumption, as part of its reasoning

process, in concluding that the claim was, in fact, received.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont.

NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.319 of 1987

On appeal from the General Administrative Division of

Respondent CORAM: NEAVES, BEAUMONT and WILCOX JJ PLACE: SYDNEY DATE: 1 DECEMBER 1987

WILCOX J: This appeal, which comes to the Court from a decision of the Administrative Appeals Tribunal (Deputy President RC Jennings QC and Mr C J Stevens, Sir William Prentice dissenting), raises a short but important question in

connection with the operation of the Export Market Development

As is well known, that Act provides for the making of grants by the Commonwealth, in partial recoupment of particular types of expenditure incurred by them, to persons engaged in developing Australia's export trade. The short question 1s whether there 1s any scope, in the scheme of the Act relating to claims, for the application of the presumption that, 1n the absence of evidence of non-receipt, a letter proved to have been posted in a properly addressed pre-paid envelope, and proved not to have been returned undelivered, was received by the addressee at the time when such a letter

Part II of the Export Market Development Grants Act

specifies procedures for claiming and making grants. As it

stood at material times, s.13(1) required that a person

desiring to obtain a grant shall submit a claim to the Export

Development Grants Board, an entity established under s.21 of the Act but now replaced by the Australian Trade Commission, the present applicant. Section 13(2) provided that, subject to the regulations, "a claim shall be submitted in the form and manner approved by the Board". Sub-section (2A) of s.13 required that, in the case of a claim relating to the grant year commencing on 1 July 1984 -- the year relevant to the present case -- the claim shall be submitted on or before 30 November 1985. Sub-section (3), which is the critical provision in this case, spelled out what was meant by "submitted". It read: "(3) A claim shall be deemed not to have been submitted until it has been received by the Board or has been received on behalf of the Board by a member of the

staff assisting the Board or by a person appointed by the Board to receive claims under this Act."

The effect of the sub-section is that it 1s not enough that a claim be posted. Unless, in a contested case, the tribunal of fact can find that the claim was received, it must be held not to have been submitted. It follows that, 1£ a claim is shown to have gone astray in the post, the claimant is unable to rely upon the fact of posting; a result which may have been different in the absence of sub-s.(3). But this leaves

unresolved the question of what is necessary to establish

Prior to the 1984-1985 grant year Solarex Pty Limited, the respondent to this appeal, had made a number of successful applications for grants under the Act. The Tribunal found, on the evidence, that in September 1985 a claim was prepared, 1n connection with the 1984-1985 grant year, for a further grant in the sum of $118,170. The Tribunal further found that an envelope containing the claim, addressed to the Board at the post office box shown on the printed claim form issued by it, was posted in a pre-stamped envelope at Chester Hill post office on 30 October 1985 and that this envelope was not returned undelivered. Notwithstanding some evidence led by the Commission regarding the procedures adopted by the Board at the relevant time, and as to certain searches which were made when the respondent made inquiries some months later as to the progress of its claim, the Tribunal was not satisfied that the claim had failed to reach the Board. Its final conclusion of fact was

"We accordingly find that on the balance of probabilities the documents which we are satisfied were posted on 30 October 1985, were mislaid by some means unknown after they were placed in the respondent's postal box at the Royal Exchange."

The Tribunal held that, upon the basis of these primary findings of fact, 1t was open to 1t to apply what it called "the common law presumption of delivery in the ordinary course of post" and which 1s described in the fourth edition of Halsbury "Laws of England" (vol.17, para.211) in these words:

1t was prepaid, properly addressed, and not returned undelivered, is evidence of its

The Tribunal considered, but rejected, a submission made on behalf of the present applicant that s.13(3) rendered

that presumption inapplicable. Evidence was accepted by the Tribunal that, notwithstanding the effects of a marl strike which had occurred between 18 and 28 October 1985 and which continued to disrupt mail deliveries until 15 November 1985, in the ordinary course of post the envelope would, 1f posted on 30 October, have been delivered by 30 November 1985. Accordingly, the Tribunal found as a fact that the claim had been "received" -- within the meaning of s.13(3) -- by the Board before 30 November 1985 and that it had, therefore, been "submitted" in due time in accordance with s.13(2). The Tribunal set aside the decision of the Commission, made as

sucessor to the Board, refusing to accept the claim upon the

ground that 1t had not been received in time and remitted the matter to the Commission with a direction that the amount of

The presumption of due delivery is merely an example of what Phipson, "Evidence", describes as "Facts relevant to prove the main fact". The learned editor of the 13th edition of that work explains at para.9.01 what 1s meant by that description:

been impossible; are relevant and in general admissible."

In short, they are primary facts from which inferences may be drawn as to the existence or non-existence of secondary facts. The justification for the inference 1s that, as a matter of ordinary human experience, there 1s commonly a particular relationship between the fact proved and the fact to be

A category of "Facts relevant to prove the main fact", 1n Phipson's analysis, 1s facts concerning the course of business. In para.9.22 the principle is set out:

"To prove that an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case."

Phipson (para 9.23) describes the probability as being "especially strong in the case of public offices, e.g. the

Being only a matter of evidence, the principle 1s merely a presumption of fact. It is rebuttable in any case by evidence sufficient to lead the tribunal of fact to conclude, upon the balance of probabilities, that in a particular case there was a departure from the ordinary course of business. Once such a conclusion 1s reached, the "presumption" has no further effect. The presumption of due delivery is not a presumption of law, that 1s to say, it is not a deeming provision whereby the Court 1s required by law to reach a

particular conclusion regardless of the true facts.

The critical question for the Tribunal in this case was whether the claim of the respondent was submitted by 30 November 1985. According to the Tribunal's findings of fact, 1t was posted well before that date. But s.13(3) precludes an argument that this 1s enough. That sub-section provides that a claim shall be deemed not to have been submitted until it has been received on behalf of the Board. However, an assertion that a document was received by a particular person by a particular date is an assertion of fact. Like any other assertion of fact it may be proved either by direct evidence of the fact asserted or by the proof of other facts from which, as a matter of logic and common experience, it is reasonable to infer the existence of the fact asserted. As counsel for the applicant agrees, proof that the claim form was delivered to the Board would furnish proof that it was "received", within the meaning of s.13(3). Whatever

criticisms may be made from time to time of Australia Post, it

happily remains true that the overwhelming majority of pre-stamped, properly addressed letters reach their destinations within a few days. Founded as 1t is upon everyday experience, there is no reason to decline to draw an

inference of due delivery from evidence of due posting.

Counsel for the applicant submits that, however compelling the inference may be as a conclusion of fact, the words of s.13(3) preclude its use in the present case. The argument 1s that the word "received" in s.13(3) indicates a legislative intention that there be direct evidence of actual receipt, thus excluding the presumption of due delivery from any practical application to claims made under s.13. In support of this submission reliance 1s placed upon Raccuia v Deputy Commissioner of Taxation (1984) 4 FCR 437. That case concerned the question whether the applicant taxpayers had, in due time, requested the Deputy Commissioner to refer toa Board of Review his disallowance of their objections to an assessment of income tax. As it stood at the time, s.187 of

the Income Tax Assessment Act 1936 permitted a taxpayer who 1s

dissatisfied with the decision of a Deputy Commissioner upon an objection to request, within 60 days after service of notice of the decision, that the matter be referred to a Board of Review. Section 188 required the Commissioner to refer the decision, if the request were accompanied by the appropriate fee. Evidence was given before Toohey J of the due posting of a letter containing a request for reference but, having heard evidence from officers of the Australian Taxation Office, his

Honour reached a conclusion of fact "that, whatever the

reason, the respondent did not receive the applicants' letter". This finding, which stands in marked contrast to the finding of the Tribunal in the present case, would be enough to deprive of application the "presumption" of due delivery; that evidentiary presumption yielding to acceptable direct

evidence that, in fact, the letter was not received.

However, Toohey J went on to make some observations about the relationship between ss.187 and 188 of the Income Tax Assessment Act and s.29 of the Acts Interpretation Act 1901. That section enacts an evidentiary presumption, akin to the common law presumption of due delivery, in cases where a Statute either authorizes or requires service by post. It reads:

"29. 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."

"I am prepared to assume that s 187 authorises a request to be served by post. But in my view, by reasons of the provisions of ss 188 and 189 of the Income Tax Act, a contrary intention appears and the provisions of s.29 of the Acts Interpretation Act 1901 (Cth) must yield to the provisions of the Income Tax Act."

His Honour went on to refer to the common law rule, holding that it also was excluded by the provisions of the Income Tax

The actual decision in Raccula was, with respect, plainly right. As I have pointed out, there was no room for any evidentiary presumption -- whether under s.29 or under the common law -- once 1t had been found that the letter was not in fact received. The subsequent observations of Toohey J depend upon the language of ss.188 and 189 of the Income Tax Assessment Act. The Court has heard no argument as to the construction and application of those sections and, under those circumstances, I make no comment about those observations. Obviously, it is open to the legislature to exclude the application to a particular case of either or both of s.29 of the Acts Interpretation Act and the common law rule. The question in any particular case is whether, upon the proper construction of the relevant statute, the legislature has done so, either expressly or by necessary implication. The observations made in Raccuia relate only to the intent indicated in ss.188 and 189 of the Income Tax Assessment Act. Those observations cannot be extrapolated to

other statutory provisions couched in different language.

I do not derive from s.13(3) any implication excluding the application of the common law presumption. In my view Parliament has been content to permit the tribunal of fact, in any contested case, to determine in the usual way the question whether a claim was received by the due date. Had it intended to exclude from the determination of that question the inference which would usually be applied, upon evidence of

due posting and in the absence of acceptable evidence of

non-receipt, I should have expected it to say so plainly. As counsel for the respondent emphasizes, the exclusion from s.13 of the ordinary presumption would have the consequence that a claimant could not safely act upon the request, made by the Board itself, to address posted claims to its post office box at Royal Exchange post office. Claimants, who may be expected to be scattered throughout Australia, would become well advised either to arrange hand delivery to the Board's office in Sydney or to post the claim, by a form of postage involving a recipient's receipt, to the Board's office rather than to the post office box. Although considerations such as these must always give way to any expressed legislative intention, the inconveniences which.I have mentioned are legitimate reasons for caution before imputing to Parliament an intention to exclude in this particular case a relevant evidentiary

principle, founded on ordinary experience and commonsense.

In my opinion the Tribunal did not fall into any legal error in applying the presumption of delivery in this

I certify this and the nine (9) preceding pages to be a true copy of the Reasons for Judgment of

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: Mallesons, Stephen Jaques

ADMINISTRATIVE LAW - Claim for export market development grant

• Statutory requirement for receipt of claim by specified date
• Finding that claim duly posted in time for delivery by

specified date ~ Claim not returned undelivered - No

acceptable evidence as to non-receipt - Whether presumption of

EVIDENCE - Presumption of due delivery of posted document.

NSW G.319 of 1987 AUSTRALIAN TRADE COMMISSION v SOLAREX PTY LIMITED

Neaves, Beaumont and Wilcox JJ Sydney 1 December 1987

NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.319 of 1987

On appeal from the General Administrative Division of the Administrative Appeals Tribunal

Respondent CORAM: NEAVES, BEAUMONT and WILCOX JJ PLACE: SYDNEY DATE: 1 DECEMBER 1987

2. The applicant pay to the respondent its costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order

NEW SOUTH WALES DISTRICT REGISTRY No. G 319 of 1987

QN APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISTON OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN : AUSTRALIAN TRADE COMMISSION Applicant AND: SOLAREX PTY LIMITED Respondent

CORAM: Neaves, Beaumont and Wilcox JJ. DATE: 1 December 1987

This is an application by the Australian Trade Commission ("the Commission") by way of appeal from a decision of the General Administrative Division of the Administrative Appeals Tribunal given on 16 June 1987. By that decision, the Tribunal, by majority, set aside a decision of the Commission under the Export Market Development Grants Act 1974 (Cth) ("the Export Grants Act") refusing to determine whether Solarex Pty Limited ("the company") had an entitlement to a grant under that Act in respect of the period (called a "grant year") which commenced on 1 July 1984 and ended on 19 May 1985. The

Tribunal remitted the matter to the Commission with a direction

that the amount of the company's grant entitlement in respect

The ground upon which the Commission had refused to determine whether the company was entitled to a grant in respect of the above period was that a claim for a grant had not been submitted by the company to the Export Development Grants Board ("the Board") within the statutorily prescribed

immediately prior to 16 October 1985 was in the following

"(1) A person desiring to obtain a grant shall submit a claim to the Board.

(2) Subject to the regulations, a claim shall be submitted in the form and manner approved by the Board.

(2A) A claim relating to a grant year shall be submitted within 5 months after the end of that year, or within such further time as' the Board allows.

(3) A claim shall be deemed not to have been submitted until it has been received by the Board or has been received on behalf of the Board by a member of the staff assisting the Board or by a person appointed by the Board to receive claims under this Act.

(4) The Board may refuse to consider a claim unless the claimant supplies such further information, or makes available to the Board such books, records or documents, as the Board specifies, being information, books, records or documents that the Board requires for the performance of its functions under this Act."

"Grant year" was defined in sub-s.3(1) to mean the year commencing on 1 July 1974 or any of the 13 next succeeding

The Board was required to consider every claim duly made and to determine whether the claimant had ai grant entitlement and, if so, the amount of that entitlement (sub-s.12(1)). Where the Board determined that a claimant had a grant entitlement and the amount of that entitlement,

a grant equal to the amount so determined was payable to the

On 16 October 1985 the Export Market Development Grants Amendment Act 1985 (Cth) received Royal Assent. By

that Act, s.13 of the Principal Act was amended by omitting

sub-s.(2A) and substituting sub-ss( 2A) and (2B). Sub-section (2B) 1s of no relevance for present purposes but

"(2A) A claim relating to a grant year shall be submitted -

(a) in the case of a claim relating to a grant year other than the grant year

referred to in paragraph (b) - within 5 months after the end of that grant year; and

(b) in the case of a claim relating to the grant year commencing on 1 July 1984 - on or before 30 November 1985."

The amendment so effected was deemed to have taken effect on

"(a) the year commencing onl July 1974 or any of the 9 next succeeding years;

(b) the period commencing on 1 July 1984 and ending on 19 May 1985;

(c) the period commencing on 20 May 1985 and ending on 30 June 1986; or

(d) the year commencing onl July 1986 or any of the 3 next succeeding years;".

The Commission was established by s.7 of the Australian Trade Commission Act 1985 (Cth), a provision which came into operation on 6 January 1986 (see Commonwealth of Australia Gazette 1985 No.S.551). The functions of the Commission included administering the Export Grants Act (see s.8(a)(viii)). On the same date, 6 January 1986, relevant provisions of the Australian Trade

Commission (Transitional Provisions and Consequential

Amendments) Act 1985 (Cth) came into operation. By those provisions "the Commission" was substituted for "the Board" in the Export Grants Act. Sub-section 44(2) relevantly provided that, where a claim for a grant had been submitted to the Board under the Export Grants Act as in force at any time before the commencing day (6 January 1986) but the Board had not determined that claim before that day, the claim might be dealt with under that Act as amended and in force on and after that day by the Commission as if it had

Before the Tribunal, the company contended that the claim for a grant under the Export Grants Act had been despatched by post on 30 October 1985 in an envelope, postage prepaid, addressed to the Board at its private post box number at the Royal Exchange Post Office at Sydney. Thereafter, the company had assumed that the claim had been received by the Board. However, on 8 July 1986 a telephone call to the Commission's offices revealed that there was no evidence of its receipt. The Commission contended that the

A majority of the members of the Tribunal, after reviewing the evidence, found that, on the balance of probabilities, the claim was posted to the Board on 30 October 1985 1n a manner and form which was sufficient in the ordinary course of post for it to reach the Board within the necessary time and that it was not returned to the company as undelivered mail. Further, the members of the Tribunal forming the majority considered that the material before the Tribunal, including material relating to the handling of mail during a mail strike in Sydney from 18 to 28 October 1986 and in the period immediately thereafter, did not raise a reasonable possibility that the envelope was lost whilst 1t was in the custody of the Australian Postal Commission. Indeed, they considered that the material before them led to the strong probability that mail posted on 30 October 1985 would have been delivered before 30

November 1985. Those members of the Tribunal then posed for

themselves the question what had happened to the claim on the assumption that the envelope had been placed in the Board's private post box at the Royal Exchange Post Office. On that assumption, they concluded, on the balance of probabilities, that 1t was mislaid by some means unknown. They expressed themselves as being "quite unconvinced" by the material which had been presented on behalf of the Commission to establish that the claim had not, in fact,

Dealing with the question whether the company had established that the claim "had been received by the Board" as required by sub-s.13(3) of the Export Grants Act, the

"We are prepared to find on the facts that delivery should be presumed because the common law presumption of delivery in the ordinary course of post operates in the absence of any evidence of non-delivery (e.g. return to sender or proved loss)".

As they were of opinion that the presumption of delivery at the private post box in the ordinary course of post had not been rebutted by positive evidence of non-delivery, the majority of the Tribunal concluded that the claim had been

was the first of the grounds stated in the notice of appeal

filed on behalf of the Commission. That ground is that the

Tribunal "erred in law in adopting the common law presumption of 'delivery in the ordinary course of post' for the purpose of determining whether the respondent's claim for the 1984/85 year had been 'received' within the meaning

of section 13(3) of the Export Market Development Grants Act 1974".

There can be no doubt, and it was not argued to the contrary, that, in order to establish entitlement to a grant under the Export Grants Act, a claimant must show that the claim tor the grant was received by the Board within the prescribed time. That is clearly the effect of sub-s.13(3)

As has already been mentioned, the members of the Tribunal forming the majority expressed themselves as being satisfied that the claim had been duly posted and that it had not been returned undelivered. They were unconvinced by the material put forward by the Board in order to show that the claim had not, in fact, been received. The Tribunal also had material before it as to the course of business adopted by the Australian Postal Commission to ensure delivery of mail in the circumstances prevailing at the relevant time. The question is whether the members of the Tribunat were entitled, upon those findings and that material, to infer that the claim had been received by the Board within the prescribed time. The answer to that question must be in the affirmative unless the relevant

The Commission relied upon sub-s.13(3) of the Export Grants Act as having that effect either expressly or by necessary implication. lt was submitted that the sub-section requires, not only an affirmative finding that the claim has been received by the Board, but that the finding to that effect be based upon direct evidence of such receipt. The Court should, it was submitted, adopt a Similar approach to the requirements of sub-s.13\3) as was taken by Toohey J. in relation to ss.188 and 189 of the

Income Tax Assessment Act 1936 (Cth) in Raccuia v. Deputy Commissioner of Taxation (1984) 4 F.C.R. 437 at 440. In

that case his Honour expressed the opinion, without elaboration, that the rule of the common law regarding proof of delivery of letters had to yield to the express

provisions of those sections of the Income Tax Assessment

I am unable to agree that sub-s.13(3) of the Export Grants Act has the effect for which the Commission contends. The provision 1s concerned only with prescribing the requirement that must be satisfied before a claim for a grant will be considered. It is not concerned to prescribe the kind of material by reference to which that requirement 1s to be satisfied nor to prescribe the reasoning processes which may be employed in considering the question. Those are matters for the primary decision-maker and, on review,

for the Tribunal. In relation to the reliance that was

placed on Raccuia v. Deputy Commissioner of Taxation

\supra), 1t 1s suffacient to say that the legislation with which that case was concerned was expressed in quite different language from that of the provision now under

It follows that, in my opinion, the Tribunal did not err in law in arriving at the conclusion that the

company's claim had been received by the Board in proper

the preceding 8 pages are a true copy of the Reasons for Judgment herein of the

) NEW SOUTH WALES DISTRICT REGISTRY ) No. G319 of 1987

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: AUSTRALIAN TRADE COMMISSION Applicant AND: SOLAREX PTY. LIMITED Respondent

BEAUMONT J. I agree with Wilcox J., for the reasons he

s.13(3) of the Export Market Development Grants Act 1974 that the Board has received the claim, on the one hand, from the method of proof of that fact, on the other. One is substantive; the other is adjectival. It is not, and could not be, disputed that receipt by the Board must be established. The only issue, one of fact, is whether, on the whole of the evidence, receipt was

The majority of the Tribunal (Mr. R.C. Jennings 0.C. and

Mr. C.J. Stevens) found, as a fact, that the claim was posted;

and that it was not returned undelivered or lost or destroyed in transit (cf. Fancourt v. Mercantile C ts Ltd. (1983) 154 C.L.R. 87 at p.95). The majority further expressed dissatisfaction with the evidence called in an effort to establish that the claim had not been received by the Board (see at op.12-13 of their reasons). The Tribunal, calling in aid the common law presumption of delivery in the case of a posted

document, found that the claim had been duly received.

In my opinion, for the purposes of 3.44(1) of the Administrative Appeals Tribunal Act 1975, no error of law has

been demonstrated. The question is essentially one of fact. The Tribunal was not bound by the rules of evidence and may inform

itself on any matter in such manner "as it thinks apprcpriate""

It is trite law that there is a prima facie presumption of fact that an envelope addressed and posted and not afterwards returned reached its destination in the ordinary course of post (see Cushing v. The Lady Barkly Gold Mining Company Registered (1883) 9 V.L.R.(E) 108 per Holroyd J. at p.122; James v. Twiss €19293 S.A.S.R. 110 per Murray C.J. at pp.116-7; Smith Brothers v. Madden Brothers (H. Ct. of A.) (1945) Q.W.N. 39 per Dixon J. at p.45). The presumption, as Wilcox J. points out, is derived from the conventional wisdom that proof of the general course of any business is some evidence that the general course was followed in the particular case (see Connor v. Blacktown District Hospital €1971] 1N.S.W.L.R. 713 per Jacobs J.A. at pp.715-54;

per Asprey J.A. at p.721; Trade Practices Commission v. T.N.7.

Management Pty. Ltd. (1983) 56 A.L.R. 647 per Franki J. at p.703; Cross on Evidence, 3rd Aust. ed. (D.M. Byrne, Q.C., J.D. Heydon

At the adjectival level, it was open to the Tribunal to apply this presumption here. This would be so even if the Tribunal were bound by the rules of evidence. The applicant can only succeed 1f£, on the true construction of the Export Market

Development Grants Act the presumption is not available.

It 1s true that s.13(3) requires that receipt by the Board be established. But, as has been said, this is a substantive provision. . ft does not address the different question, adjectival in character, as to how such receipt may be demonstrated. That, understandably, 1s left at large so that it

waS open to the respondent to prove that fact by any means.

There is no provision in the Export Market Development Grants

Act, express or to be implied, restricting the method of proof of receipt of a claim by the Board. It was open to the Tribunal, therefore, to apply the presumption, as part of its reasoning

process, in concluding that the claim was, in fact, received.

preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice

NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.319 of 1987

On appeal from the General Administrative Division of the Administrative Appeals Tribunal

Respondent CORAM : NEAVES, BEAUMONT and WILCOX JJ PLACE: SYDNEY DATE: 1 DECEMBER 1987

WILCOX J: This appeal, which comes to the Court from a decision of the Administrative Appeals Tribunal (Deputy President R C Jennings QC and Mr C J Stevens, Sir William Prentice dissenting), raises a short but important question in

connection with the operation of the Export Market Development

As 1s well known, that Act provides for the making of grants by the Commonwealth, in partial recoupment of particular types of expenditure incurred by them, to persons engaged in developing Australia's export trade. The short question is whether there is any scope, in the scheme of the Act relating to claims, for the application of the presumption that, in the absence of evidence of non-receipt, a letter proved to have been posted in a properly addressed pre-paid envelope, and proved not to have been returned undelivered, was received by the addressee at the time when such a letter

Part II of the E&xport Market Development Grants Act

specifies procedures for claiming and making grants. As it

stood at material times, s.13(1) required that a person desiring to obtain a grant shall submit a claim to the Export

Development Grants Board, an entity established under s.21 of the Act but now replaced by the Australian Trade Commission, the present applicant. Section 13(2) provided that, subject to the regulations, "a claim shall be submitted in the form and manner approved by the Board". Sub-section (2A) of s.13 required tnat, in the case of a claim relating to the grant year commencing on 1 July 1984 -- the year relevant to the present case -- the claim shall be submitted on or before 30 November 1985. Sub-section (3), which 1s the critical provision in this case, spelled out what was meant by "submitted". It read: "(3) A claim shall be deemed not to have been submitted until it has been received by the Board or has been received on behalf of the Board by a member of the

staff assisting the Board or by a person appointed by the Board to receive claims under this Act."

The effect of the sub-section is that it 1s not enough that a claim be posted. Unless, in a contested case, the tribunal of fact can find that the claim was received, 1t must be held not to have been submitted. It follows that, if a claim 1s shown to have gone astray in the post, the claimant is unable to rely upon the fact of posting; a result which may have been different in the absence of sub-s.(3). But this leaves

unresolved the question of what is necessary to establish

Prior to the 1984-1985 grant year Solarex pty Limited, the respondent to this appeal, had made a number of successful applications for grants under the Act. The Tribunal found, on the evidence, that in September 1985 a claim was prepared, in connection with the 1984-1985 grant year, for a further grant in the sum of $118,170. The Tribunal further found that an envelope containing the claim, addressed to the Board at the post office box shown on the printed claim form issued by it, was posted in a pre-stamped envelope at Chester Hill post office on 30 October 1985 and that this envelope was not returned undelivered. Notwithstanding some evidence led by the Commission regarding the procedures adopted by the Board at the relevant time, and as to certain searches which were made when the respondent made inquiries some months later as to the progress of 1ts claim, the Tribunal was not satisfied that the claim had failed to reach the Board. Its final conclusion of fact was

"We accordingly find that on the balance of probabilities the documents which we are satisfied were posted on 30 October 1985, were mislaid by some means unknown after they were placed in the respondent's postal box at the Royal Exchange."

The Tribunal held that, upon the basis of these primary findings of fact, it was open to 1t to apply what it called "the common law presumption of delivery in the ordinary course of post" and which 1s described in the fourth edition of Halsbury "Laws of England" (vol.17, para.211) in these words:

"Proof that a letter has been posted, and that 1t was prepaid, properly addressed, and not

returned undelivered, is evidence of its delivery in the'ordinary course of post."

The Tribunal considered, but rejected, a submission made on behalf of the present applicant that s.13(3) rendered that presumption inapplicable. Evidence was accepted by the Tribunal that, notwithstanding the effects of a mail strike which had occurred between 18 and 28 October 1985 and which continued to disrupt mail deliveries until 15 November 1985, in the ordinary course of post the envelope would, 1f posted on 30 October, have been delivered by 30 November 1985. Accordingly, the Tribunal found as a fact that the claim had been "received" -- within the meaning of s.13(3) -- by the Board before 30 November 1985 and that it had, therefore, been "submitted" in due time in accordance with s.13(2). The Tribunal set aside the decision of the Commission, made as

sucessor to the Board, refusing to accept the claim upon the

ground that 1t had not been received in time and remitted the

matter to the Commission with a direction that the amount of

The presumption of due delivery is merely an example of what Phipson, "Evidence", describes as "Facts relevant to prove the main fact". The learned editor of the 13th edition of that work explains at para.9.01 what 1s meant by that description:

"Facts which, as a matter of ordinary logic or experience, tend to render the existence of the main fact probable or improbable, .e.g. those which are only or chiefly consistent with its existence, and in rebuttal those which are inconsistent, or show 1t to have been impossible; are relevant and in general admissible."

In short, they are primary facts from which inferences may be drawn as to the existence or non-existence of secondary facts. The justification for the inference is that, as a matter of ordinary human experience, there is commonly a particular relationship between the fact proved and the fact to be

fact", in Phipson's analysis, 1s facts concerning the course

of business. In para.9.22 the principle is set out:

"To prove that an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case."

Phipson (para 9.23) describes the probability as being "especially strong in the case of public offices, e.g. the

Being only a matter of evidence, the principle is merely a presumption of fact. It is rebuttable in any case by evidence sufficient to lead the tribunal of fact to conclude, upon the balance of probabilities, that 1n a particular case there was a departure from the ordinary course of business. Once such a conclusion 1s reached, the "presumption" has no further effect. The presumption of due delivery 1s not a presumption of law, that is to say, 1t is not a deeming provisicn whereby the Court 1s required by law to reacn a

particular conclusion regardless of the true facts.

The critical question for the Tribunal in this case 'was whether the claim of the respondent was submitted by 30 November 1985. According to the Tribunal's findings of fact, it was posted well before that date. But s.13(3) precludes an argument that this is enough. That sub-section provides that a claim shall be deemed not to have been submitted until 1t has been received on behalf of the Board. However, an assertion that a document was received by a particular person by a particular date is an assertion of fact. Like any other assertion of fact it may be proved either by direct evidence of the fact asserted or by the proof of other facts from which, as a matter of logic and common experience, 1t 1s reasonable to infer the existence of the fact asserted. As counsel for the applicant agrees, proof that the claim form was delivered to the Board would furnish proof that it was "received", within the meaning of s.13(3). Whatever

criticisms may be made from time to time of Australia Post, 1t

happily remains true that the overwhelming majority of pre-stamped, properly addressed letters reach their destinations within a few days. Founded as it is upon everyday experience, there is no reason to decline to draw an

inference of due delivery from evidence of due posting.

Counsel for the applicant submits that, however compelling the inference may be as a conclusion of fact, the words of s.13(3) preclude its use in the present case. The argument is that the word "received" in s.13(3) indicates a legislative intention that there be direct evidence of actual receipt, thus excluding the presumption of due delivery from any practical application to claims made under s.13. In support of this submission reliance is placed upon Raccuia v Deputy Commissioner of Taxation (1984) 4 FCR 437. That case concerned the question whether the applicant taxpayers had, in due time, requested the Deputy Commissioner to refer toa Board of Review his disallowance of their objections to an assessment of income tax. AS 1t stood at the time, s.187 of the Income Tax Assessment Act 1936 permitted a taxpayer who is dissatisfied with the decision of a Deputy Commissioner upon an objection to request, within 60 days after service of notice of the decision, that the matter be referred to a Board of Review. Section 188 required the Commissioner to refer the decision, 1f the request were accompanied by the appropriate fee. Evidence was given before Toohey J of the due posting of a letter containing a request for reference but, having heard evidence from officers of the Australian Taxation Office, his

Honour reached a conclusion of fact "that, whatever the

reason, the respondent did not receive the applicants' letter". This finding, whicn stands in marked contrast to the finding of the Tribunal in the present case, would be enough to deprive of application the "presumption" of due delivery; that evidentiary presumption yielding to acceptable direct

evidence that, in fact, the letter was not received.

However, Toohey J went on to make some observations

about the relationship between ss.187 and 188 of the Income

Tax Assessmert Act and s.29 of the Acts Interpretation

Act 1901. That section enacts an ev.aentiary presumption, akin to .be common law presumption of due delivery, in cascs where a statute either authorizes or requires service by post. it reads:

"29. 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 1s 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 1s proved to have been effected at the time at which the letter would be delivered in the ordinary course of post."

"I am prepared to assume that s 187 authorises a request to be served by post. But in my view, by reasons of the provisions of ss 188 and 189 of the Income Tax Act, a contrary intention appears and the provisions of s.29 of the Acts Interpretation Act 1901 (cth) must yield to the provisions of the Income Tax Act."

His Honour went on to refer to the common law rule, holding that 1t also was excluded by the provisions of the Income Tax

The actual decision in Raccuia was, with respect, plainly right. As I have pointed out, there was no room for any evidentiary presumption -- whether under s.29 or under the common law -- once it had been found that the letter was not in fact received. The subsequent observations of Toohey J depend upon the language of ss.188 and 189 of the Income Tax

Assessment Act. The Court has heard no argument as to the

construction and application of those sections and, under those circumstances, I make no comment about those observations. Obviously, it is open to the legislature to exclude the application to a particular case of either or both of s.29 of the Acts Interpretation Act and the common law rule. The question in any particular case is whether, upon the proper construction of the relevant statute, the legislature has done so, either expressly or by necessary implication. The observations made in Raccula relate only to the intent indicated in ss.188 and 189 of the Income Tax Assessment Act. Those observations cannot be extrapolated to

other statutory provisions couched in different language.

I do not derive from s.13(3) any implication excluding the application of the common law presumption. In my view Parliament has been content to permit the tribunal of fact, 1n any contested case, to determine in the usual way the question whether a claim was received by the due date. Had it intended to exclude from the determination of that question the inference which would usually be applied, upon evidence of

due posting and in the absence of acceptable evidence of

non-receipt, I should have expected 1t to say so plainly. As counsel for the respondent emphasizes, the exclusion frem s.13 of the ordinary presumption would have the consequence that a claimant could not safely act upon the request, made by the Board itself, to address posted claims to 1ts post office box at Royal Exchange post office. Claimants, who may be expected te be scattered throughout Australia, would become wel advised either to arrange hand delivery to the Board's office in Sydney or t~ nost the claim, by a form of postage involving a recipient's receipt, to the Board's office rather than to the post office bcx. Although considerations such as these must always give way tc any expressed lagislative intention, the inconveniences which.I have mentioned are ley1timate reasons for caution berore imputing to Parliament an intention to exclude in this particular case a relevant evidentiary

principle, founded on ordinary exrctrience and commonsense.

In my opinion the Tribunal did not fall into any legal error in applying the presumption of delivery in this

I certify this and the nine (9) preceding pages to be a true copy of the Reasons for Judgment of

Solicitor for the Applicant; Australian Government Solicitor

Solicitor for the Respondent: Mallesons, Stephen Jaques