(c) any unenclosed written communication that is directed to a particular person or address.
… "
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 (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) 199 CLR 370, see also Deputy Commissioner of Taxation v George (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) 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] 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 -