Deputy Commissioner of Taxation v Soong

Deputy Commissioner of Taxation v Nercessian (2006) 67 NSWLR 215 DCT v Meredith [2007] NSWCA 354; 69 ATR 876 CASES CITED : Kavanagh v Federal Commissioner of Taxation (2007) 157 FCR 551 Kolistas v DCT (2005) 59 ATR 551 Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361

PARTIES : Plaintiff - Deputy Commissioner of Taxation Defendant - Desley Soong

COUNSEL : Plaintiff - Mr R Quinn, counsel Defendant - Mr J Mendel, counsel

SOLICITORS : Plaintiff - Australian Government Solicitor Defendant - Diamond Conway

• 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13826/08 DEPUTY COMMISSIONER OF TAXATION v DESLEY SOONG

JUDGMENT 1 HER HONOUR: By statement of claim filed in July 2008, the plaintiff claimed the sum of $1,059,520.67 as penalties imposed under Division 9 of Part VI of the Income Tax Assessment Act 1936 (Cth). The penalties are sought in relation to the failure of Palmarac Pty Ltd ('Palmarac'), Entarmi Pty Ltd ('Entarmi') and Dimpara Pty Limited ('Dimpara') to comply with s 222AOB of the Income Tax Assessment Act, which required them to deal with deductions made from employee salaries and wages (PAYG deductions), withheld for the purpose of Division 12 of Schedule 1 to the Taxation Administration Act 1953 (Cth). It is claimed that the moneys withheld were not paid to the plaintiff on the due dates and that as a result, the defendant, as a director of Palmarac, Entarmi and Dimpara, is liable to pay penalties under ss 222AOC and 222AOD of the Income Tax Assessment Act, in relation to those failures. 2 It was not in contest that since the commencement of the proceedings, credits had accrued, which had reduced the amount of the claim to $1,049,384.17. The total penalties finally claimed in relation to Palmarac was $303,216.57, Entarmi $407,725.50 and Dimpara, $338,442.10. Interest and costs are also sought.

Issues 3 The only issue lying between the parties was whether the plaintiff gave the defendant the notices required to be served upon him on the date on which the notices were posted, 29 November 2007, or on the date they were received, 1 December 2007. The defendant had fourteen days to comply with the notices. There were four possible courses of action available to the defendant under s 222AOB, which, if taken, would have had the result that the penalties were remitted. The defendant chose to appoint an administrator, one of those available avenues, but the appointment was not made until 14 December. On the plaintiff's case, the time for compliance with the notice expired on 13 December, the fourteen days running from the date of posting the notices, that being the date that they were 'given' to the defendant. On the defendant's case, the time ran from the date of receipt of the notices.

The parties' cases 4 The plaintiff's case was that Palmarac, Entarmi and Dimpara did not make the payments due in relation to PAYG deductions withheld from employees' salary and wages, on the due dates. The Income Tax Assessment Act imposes an obligation on directors to ensure that such payments are made, or to take other specified action (see Div 9 of Part VI). Non compliance automatically renders directors 'liable to pay to the Commissioner, by way of penalty, an amount equal to the unpaid amount of the company's liability' (s 222AOC(1)). There is a continuing obligation imposed by s 222AOB(3) to bring about compliance, if the payment required by s 222AOB(1) is not made. 5 Recovery of the penalty requires the Commissioner to give a director notice of the 'details of the unpaid amount of the liability' and the alternatives available (s 222AOE). If the company meets its obligations or takes other remedial action within fourteen days after the notice is given, the penalty is automatically remitted. This is the last chance a director has, to negate the liability for the penalty (see Kolistas v DCT (2005) 59 ATR 551 at [26].) 6 In this case, the required notices were given, but the administrator was not appointed within fourteen days of the notice being posted on 29 November 2007, with the result that the penalties were not remitted. 7 The plaintiff relied on both the provisions of s 255-50 of Schedule 1 of the Taxation Administration Act to establish a prima facie case and s 255-45 of Schedule 1 of that Act, to establish a prima facie case in relation to the matters stated in certain certificates, which were in evidence. There was no issue between the parties as to these matters, or as to the address to which the notice was posted, or that it was there received. 8 As to service of the notices, the plaintiff relied on the provisions of s 222AOF of the Income Tax Assessment Act, submitting that where service is so effected, a notice is deemed to have been given (see DCT v Meredith [2007] NSWCA 354; 69 ATR 876.) Evidence of non receipt is irrelevant, as is evidence that the address obtained from relevant ASIC records is no longer current, or is inaccurate (see Kavanagh v Federal Commissioner of Taxation (2007) 157 FCR 551.) 9 The defendant's case was that while the Court as presently constituted was bound by the judgment of the majority in Meredith, in this case, what was in issue was the date from which the fourteen day period specified in s 222AOG commenced, a matter not in issue in Meredith. What arose for consideration in this case, namely the construction of s 222AOG, that is, whether the period commenced from the date the notice was posted, or the date it was received, showed that the majority in Meredith had erred, by failing to have proper regard to the ordinary meaning of the word 'give' where used in s 222AOF. When the factual circumstances which had here arisen were considered, it was apparent that the approach of Giles J, in dissent in Meredith, was correct, with the result that the notices were not given to the defendant until they were received on 1 December 2007. The appointment of the administrator on 14 December, was therefore within the time specified.

Consideration 10 In evidence were letters dated 29 November 2007, enclosing notices also dated 29 November, which were posted that day to the defendant. The letters, entitled a 'Director Penalty Notice: PAYG Withholding Amounts', were in similar terms, enclosing the Notice and advising that:

Please find enclosed a notice of your liability to pay a penalty equal to the amount(s)of certain specified PAYG withholding liabilities that DIMPARA PTY LIMITED, ACN 113 484 076, (the company), that you are or were a director of at relevant times, failed to pay to the Commissioner. You automatically became liable to pay the penalty when the company failed to pay the amount(s) set out in the enclosed notice by the due date(s).

We will commence action for the recovery of the penalty without further warning unless, at the end of 14 days from the date the enclosed notice is given to you:

(a) the company's liability has been discharged; or (b) an agreement relating to such liability is in force under section 222ALA of the Income Tax Assessment Act 1936 ; or (c) the company is under administration within the meaning of the Corporations Act 2001 ; or (d) the company is being wound up.

The penalty will be remitted if any one of these options is adopted within 14 days from the date the enclosed notice is given to you .

You should keep in mind that you will continue to be liable to a penalty if any one of the options has not been adopted at the end of 14 days after you are given the enclosed notice (that is, any agreement would need to be executed by both the company and the Commissioner before the expiration of the 14 days).

(The bolded words appeared in bolding in the letter.)

11 The 'Notice of Director's Liability To Pay A Penalty To The Commissioner of Taxation PAYG Withholding Amounts', given under s 222AOE, were also each in similar terms, advising in each case of the amount of the outstanding liability and that: 'The penalty in respect of each unpaid amount of the company's liability as detailed in the above table will be remitted if, at the end of 14 days after this notice is given to you ...'

(The bolded words again appeared in bolding in the notice.)

12 One of the specified steps were taken by the defendant. 13 The letters and notices were received by the defendant on 1 December. The defendant then took steps to have an administrator appointed to each of the companies. If the appointment was made within the time prescribed, namely 'within 14 days after the Commissioner gives the person such a notice', then the defendant was not liable for the penalties here claimed, they were remitted (s 222AOG). On the Commissioner's case, those steps were taken out of time, because the 14 days ran from 29 November, not 1 December. 14 Patently, given how they were couched, the letters and notices sent to the defendant were open to misinterpretation. It was argued for the defendant that the ordinary meaning of the word 'give', comprehends receipt and that was what the defendant understood. There is some force in that submission. 15 In the Online Macquarie Dictionary, the word 'give' is defined as:

6. (on official documents) executed and delivered as of the date specified 16 In the Online Oxford English Dictionary it is defined as:

B . Signification. General sense: To make another the recipient of (something that is in the possession, or at the disposal, of the subject). 17 Undoubtedly the defendant may have understood that the notices were only 'given' to him, as the letters and notices provided, once they were received and that accordingly, he had fourteen days from that date, to take action, so that the penalty would be remitted. 18 For the plaintiff, however, it was argued that in the scheme of this part of the Income Tax Assessment Act, the word 'give' has a different meaning, as the majority in Meredith concluded. The crucial sections are s 222AOE, s 222AOF and s 222AOG, which provide: 222AOE Commissioner must give 14 days' notice before recovering penalty 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. 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. 222AOG Remission of penalty if section 222AOB, 222AOBAA or 222AOBA complied with before notice period ends If: (a) a penalty is payable by a person under this Subdivision; and (b) section 222AOB, 222AOBAA or 222AOBA (whichever relates to the penalty) is complied with at a time when the Commissioner has not yet given the person a notice under section 222AOE, or within 14 days after the Commissioner gives the person such a notice; the penalty is remitted because of this section.

19 The plaintiff argued that the notion of receipt is not comprehended in these sections. It is the act of posting the notice, not its receipt, which has the result that the notice has been given by the plaintiff, as the Act requires. As the defendant accepted, that is certainly the import of the judgment of the majority in Meredith. 20 Nevertheless, while the advice given in the letters and notices sent to the defendant in this case, was undoubtedly advice given in accordance with the words used in the statutory scheme, in their terms the letters and notices did not clearly indicate to the defendant when the 14 day notice period expired. Nor did they indicate that the 14 days had to be calculated from the date that the notice was posted, rather than the date on which it was received. 21 Indeed, what date the documents were posted, would certainly not have been apparent to the defendant. They might have been posted when the letters and notices were dated, but it could have been later, although obviously, it must have been before they were received on 1 December. It is, it seems to me, understandable in the circumstances, that the defendant proceeded on the basis that the 14 day notice period ran from the date on which he received the notices. That, however, is not sufficient to dispose of what here lies between the parties. 22 It was common ground that the Court as here constituted is bound by the decision in Meredith, with the result that the orders sought by the Commissioner must be made. Nevertheless, it was argued to be relevant that the circumstances in Meredith were different to those which arose here for consideration. In that case, the defendant had led evidence that the notice had never been received. In this case, the evidence was that the notice had been received, with the result that the question to be decided is the date from which the 14 days specified in s 222AOG must be calculated - the day that the notice was posted by the plaintiff, or the date on which it was received by the defendant. 23 The meaning of words in issue are those appearing in s 222AOG(b), namely if the applicable section is complied with 'within 14 days after the Commissioner gives the person such a notice'. It is in s 222AOF, that the legislature has specified how a notice may be given and s 222AOE, which provides that the Commissioner may not recover a penalty until 'the end of 14 days after the Commissioner gives to the person a notice'. 24 It was argued for the defendant that in Meredith, in considering the meaning of s 222AOF, no account was taken by the Court of Appeal of the ordinary meaning of the word 'give'. If that word, which is also used in s 222AOG, is given its ordinary meaning, which includes receipt, then the 14 days there specified would be calculated from the date that the notice was received by the defendant, not the date that it was posted by the plaintiff. That this was a possibility, was hinted at by the majority in Meredith, Basten AJ observing at [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.

25 Like in Meredith, in this case there was also no issue as to the date that the notice was posted. What was here in issue was the time available to the defendant to take the action provided for in s 222AOG, if the penalty which flowed from s 222AOE, was to be remitted. 26 Despite what Basten JA observed at [86], given the conclusions his Honour earlier reached as to the meaning of s 222AOF, it was accepted that the conclusion here urged for the defendant, as to the meaning of s 222AOG, was not available. Nor could the provisions of s 160 of the Evidence Act 1995 (Cth) lead to the result urged. 27 Certainly, it is apparent that neither in the judgment of Basten JA, nor that of Giles JA, was any reference made to the ordinary meaning of the word 'give', where used in s 222AOF, or how it was used in s 222AOG. Presumably no submissions were directed at questions such as this, given the factual situation which arose for consideration in Meredith. 28 For the plaintiff it was argued that the word 'give' was not used in its ordinary meaning in these provisions. Section 222AOF contemplated that the act of giving a notice was complete, once the notice was left at, or was sent by post to, a particular address. In that statutory context, the word 'give' did not permit of the concept of receipt, as the majority concluded in Meredith, even where used in s 222AOG. While, undoubtedly, the statutory scheme was a harsh one, giving a director, in reality, less than 14 days in which to take one of the steps available under s 222AOG, which would result in the remission of the penalty, if the notice was posted, rather than left at the relevant address, that was the consequence of the approach which the legislature had adopted. 29 That outcome, it has to be observed, appears to be somewhat curious. It was accepted for the plaintiff that there was another means of service of a notice available to the Commissioner, namely service in accordance with the provisions of s 28A and s 29 of the Acts Interpretation Act 1901 (Cth) (see the note to s 222AOF(1)). It was further accepted for the plaintiff that if the notice was served in accordance with those provisions, then the question of delivery would be relevant. In such a case, the time from which the 14 days provided in s 222AOG ran, would be calculated from the date the notice was delivered to the relevant address. 30 That result flows from the provisions of s 28A and s 29 of the Acts Interpretation Act, which provide:

(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.

(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 .

31 That further highlights the difficulty with the advice here given by the plaintiff. It is difficult to see that this was a fair means of notifying the defendant of the time during which he had the opportunity to take one of the alternative steps available to him under s 222AOG, if the penalties to which he was already exposed by operation of s 222AOC, were to be remitted. 32 Nevertheless, it was both parties' cases that the approach of the majority in Meredith is binding and must be applied. It is difficult to see how that conclusion may be avoided. 33 In Deputy Commissioner of Taxation v Nercessian (2006) 67 NSWLR 215, the Court of Appeal observed:

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 in either form. 34 In Meredith, the Court of Appeal was also concerned with the proper construction of s 222AOF. By majority (Ipp JA agreeing with Basten JA), it was held that on the proper construction of s 222AOF, the obligation to give notice is satisfied by sending the notice by post, to the director at an address which appears in the records of the Australian Securities and investments Commission (ASIC). In that case there was evidence that the notice had been sent, as the section required, but evidence, accepted by the trial judge, that it had never been received.

35 Basten JA observed at [75] - [76]: 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) 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] 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 62 NSWLR 132 at [57]-[63]. That was not attempted in this case.

36 At [79], in relation to the effect of s 29 of the Acts Interpretation Act, his Honour took the view that:

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.

37 A similar view had been reached by the Court of Appeal in Nercessian, where Santow JA, with whom Mason P and McColl JA agreed, concluded at [36]:

36 Because this mode of service was not relied upon in argument below beyond passing references to s 29 of the Acts Interpretation Act (Cth), and because this matter involves a factual dispute that could not now be resolved on appeal, I make no finding as to the application or otherwise of s 28A. 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 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. 38 Support for the conclusion of the majority in Meredith was also found in the judgment in Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361, which was also concerned with the question of whether service was effected by the act of posting a notice, there required by the Local Government Act 1993. 39 As I have noted, in this case, it is not a question of non receipt of the notices, but rather a question of the time from which the period specified in the notices ran, when the notices were posted, a mode of service contemplated by s 222AOG. 40 In Meredith, Basten JA referred to the provisions of the Evidence Act and their potential impact at [86], the relevant provisions providing: 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 (c) subsection (1) is inconsistent with a term of the contract. (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.

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 (c) any unenclosed written communication that is directed to a particular person or address. Note 1: The NSW Act has no equivalent provision for section 163. Note 2: Section 5 extends the operation of this section to proceedings in all Australian courts. 41 Section 182, provides relevantly:

(4A) Section 160 applies in relation to postal articles sent by a Commonwealth agency as if that section applied to the extent provided for in section 5.

Section 5 provides: 5 Extended application of certain provisions The provisions of this Act referred to in the Table apply to all proceedings in an Australian court, including proceedings that: (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) relate to sentencing. TABLE Provisions of this Act Subject matter Subsection 70(2) Evidence of tags and labels in Customs prosecutions and Excise prosecutions Section 143 Matters of law Section 150 Seals and signatures Section 153 Gazettes and other official documents Section 154 Documents published by authority of Parliaments etc. Section 155 Official records Section 155A Commonwealth documents Section 157 Public documents relating to court processes Section 158 Evidence of certain public documents Section 159 Official statistics Section 163 Proof of letters having been sent by Commonwealth agencies Section 182 Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents

Note 1: Australian court is defined in the Dictionary to cover all courts in Australia. The definition extends to persons and bodies that take evidence or that are required to apply the laws of evidence. Note 2: The NSW Act has no equivalent provision for section 5.

42 Here, there was no question as to the date on which the notices were posted or received, so no questions under s 160 of the Evidence Act arose to be considered. If it applied, the presumption arising from s 163 of the Evidence Act was here also displaced, given the evidence. Nevertheless, because of the view of the majority in Meredith, that the statutory scheme is not concerned with the receipt of the notices, they are given when they are posted, as s 222AOF(1) provides, then it follows that there is no work for s 163 of the Evidence Act to do, when the provisions of s 222AOG arise for consideration, if there is evidence as to the date of posting. The question of receipt is not relevant to the provision made in ss 222AOE, 222AOF, or 222AOG of the Income Tax Assessment Act, once it is accepted that the Commissioner gives a notice, by posting it as s 222AOF(1) permits. The fourteen day period fixed by s 222AOG, runs from the date of posting, that being when the notice is given. 43 The defendant did not argue that the word 'give' is not used consistently in this statutory scheme. That is the ordinary view. (See the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 6th ed at [4.6] -[4.7]). The rebuttal of the presumption is difficult to see in this context. The result of such a rebuttal, in the present case, would appear to have the consequence that in the case of a director who established that the notice posted by the Commissioner was never received, the 14 day period specified in s 222AOG, could not run. That seems to be a considerable difficulty standing in the way of the construction here urged for the defendant, given the views reached by the majority in Meredith as to the proper construction of s 222AOF. 44 In Meredith, Giles JA, in the minority took the view that s 28A and s 29 of the Acts Interpretation Act were not excluded from operation when a notice was given in accordance with s 222AOF. His Honour also concluded at [42] that:

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.

45 Arguably, his Honour's approach provides support for the view here urged for the defendant, namely that the fourteen days provided in s 222AOG must be calculated from the date of receipt of the notice, but, as the defendant accepted, that view is not open, given that his Honour was in the minority. 46 As I observed at the hearing, it would appear sensible for the plaintiff to revisit the terms of the notices given under these provisions. Nevertheless, it follows that despite the difficulties with the terms of the letters and notices sent to the defendant in this case, it appears that the plaintiff is entitled to the orders sought, as the defendant conceded.

Orders 47 For the reasons given, there must be judgment in favour of the plaintiff in the sum specified in the certificate annexed to Mr Elmer's affidavit, together with interest. The usual order would be that the defendant pay the plaintiff's costs as agreed or assessed. The parties should formulate the terms of the orders to reflect the judgment and if there is any disagreement as to costs, they should approach within 7 days.

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