Commissioner of State Revenue v Kimiora
[2016] FCCA 1229
•20 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMISSIONER OF STATE REVENUE v KIMIORA | [2016] FCCA 1229 |
| Catchwords: STATUTORY INTERPRETATION – Interest payable under STATUTORY INTERPRETATION – Principles to be applied in ascertaining the intention of Parliament. |
| Legislation: Bankruptcy Act 1966 (Cth), s.306 Corporations Act 2001 (Cth) |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Berchet [1794] EngR 1806 The Honourable Justice Kenneth Hayne AC, Statutes, Intentions and Courts: What Place Does The Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction? (2014) 13(2) Oxford Commonwealth Law Journal 271 |
| Applicant: | COMMISSIONER OF STATE REVENUE |
| Respondent: | METUAVAINE MATAGARO KIMIORA |
| File Number: | MLG 106 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 7 April 2016 |
| Date of Last Submission: | 7 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R T Wodak with Mr D Ternovski |
| Solicitors for the Applicant: | State Revenue Office |
| No appearance by the Respondent |
ORDERS
The estate of Metuavaine Matagaro Kimiroa be sequestrated under the Bankruptcy Act 1966 (Cth) (“the Act”).
The applicant creditor’s costs fixed in the sum of $6,281.00 be paid from the estate of the respondent debtor in accordance with the Act.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 106 of 2016
| COMMISSIONER OF STATE REVENUE |
Applicant
And
| METUAVAINE MATAGARO KIMIORA |
Respondent
REASONS FOR JUDGMENT
Introduction
By orders made on 3 March 2016, Registrar Caporale referred the hearing of the application of the Commissioner of State Revenue
(“the applicant”) for a sequestration order to me for determination.
This case raised an unusual peculiarity about the circumstances in which an affidavit in support of the creditor’s petition was affirmed. The case also raised a point about the relevant legislation pursuant to which interest was calculated. In the passages that follow I have canvassed both of those matters.
Synopsis
For the reasons that follow, in my judgment –
a)
the affidavit made in support of the petition for the bankruptcy of Metuavaine Matagoro Kimiora (“the respondent”) was not regular when filed but by reason of s.306 of the
Bankruptcy Act 1966(Cth) (“the Act”), the amended petition upon which the applicant relies (incorporating a properly sworn affidavit in support of the creditor’s petition) is now in proper form;
b)the interest applicable was calculated under the correct legislation, that is to say, the Taxation Administration Act 1997 (Vic) (“the T A Act”); and
c)a sequestration order should be made against the respondent’s estate.
Factual setting
On 20 January 2016, the applicant filed in this Court a creditor’s petition against the respondent. In that petition, the applicant recited that the respondent owed the applicant the sum of $18,878.22. That sum was said to have been made up of an unpaid tax in the form of duty and interest.
The judgment debt
The applicant issued proceeding D12434930 in the Magistrates Court of Victoria at Frankston on 16 August 2013. In that proceeding, the applicant sought payment of a tax liability alleged to have arisen under the T A Act. In that proceeding, the applicant claimed $15,561.03 plus costs of $1,303.00. In the statement of claim[1] endorsed on the complaint in that proceeding, the applicant asserted that it had the conduct of the general administration of taxation laws as defined in
s.4 of the T A Act. The applicant further alleged that pursuant to s.8 of the T A Act, the applicant assessed two persons, one of whom was the respondent, for a tax liability of $15,561.03 allegedly owing under the Duties Act 2000 (Vic). The applicant contended that those two persons previously assessed for tax liability were jointly and severally liable for the payment of the sum of $15,561.03. The applicant further alleged that the respondent had been served with an assessment and that he had failed to pay that assessment by the due date with the consequence that the respondent became liable for the payment of not only the sum of $15,561.03 but also further interest imposed under Pt.5 of the T A Act.
[1] Affidavit affirmed by Toby Tucker on 31 March 2016 at Exhibit “TT1”.
The sum of $15,561.03 was made up of several component parts. They were recorded in tabular form on the applicant’s statement of claim.[2] Expressed in narrative form, the amount of $15,561.03 was owed against assessment number 424482 dated 20 April 2007, the due date for payment of which was 21 May 2007. The applicant sought payment of unpaid stamp duty of $8,421.00 plus interest included in the assessment of $353.02. Aside from the unpaid duty, the next largest component of the sum sought by the applicant on the assessment was interest that was accrued from the due date for payment shown in the assessment to the date of the demand, calculated in the sum of $6,787.01. When the amount of unpaid duty of $8,421.00 was added to the sum of $353.02 (being interest included in the assessment) plus the sum of $6,787.01 (being interest accrued from the due date for payment that shown in the assessment to the date of the demand) the sum sought in the statement of claim was thereby derived, being $15,561.03.
[2] Affidavit affirmed by Toby Tucker on 31 March 2016 at Exhibit “TT1”.
In the prayer for relief in the statement of claim, the applicant sought interest on top of the amount of $15,551.03 pursuant to Pt.5 of the
T A Actfrom the date of the complaint until payment in full.
By affidavit affirmed at 31 March 2016, Toby Tucker, a senior solicitor employed by the applicant deposed to the arithmetic in the applicant’s statement of claim as has been recorded above.
During the hearing before me, counsel for the applicant informed me that the obligation upon the respondent to pay stamp duty arose from a transaction to which the provisions of the First Home Owner Grant Act 2000 (Vic) (“the FHOG Act”) applied. For present purposes, it is not necessary for me to investigate the provisions of the FHOG Act as the interest provisions of relevance in this case arose under the provisions of the T A Act.
On 24 March 2014, the applicant entered default judgment against the respondent for $15,561.03 together with interest of $985.25 and costs of $840.52 making in total a judgment debt of $17,386.80
(“the judgment debt”). A certified extract of the judgment debt dated
18 November 2015 was given in evidence as Exhibit “A” to the affidavit of Amanda Girdler sworn 8 December 2015.
On 26 November 2015, the Official Receiver issued a bankruptcy notice against the respondent on the application of the applicant in which the stated amount was the judgment debt of $17,386.80 plus accrued interest since the date of judgment of $1,491.42 making in total the sum of $18,878.22. After service of the bankruptcy notice upon the respondent, the respondent failed within 21 days of service to apply to the court on the basis that he had a counter-claim, set off or cross demand equal to or exceeding the sum of $18,878.22 that the applicant claimed in the bankruptcy notice. The arithmetic on the bankruptcy notice was deposed to by Amanda Girdler in her affidavit sworn 8 December 2015.
By reason of the respondent’s failure to pay the sum stipulated in the bankruptcy notice or to compound with the applicant to its satisfaction, the respondent committed an act of bankruptcy empowering the applicant to issue the creditor’s petition referred to above.[3]
[3] Creditor’s Petition filed 20 January 2016.
The applicant’s proofs
The applicant adduced proofs of all formal matters in accordance with the stipulations of the rules that govern the hearing of bankruptcy matters, except for two.
On 3 March 2016, when the applicant’s creditor’s petition came for hearing before Registrar Caporale, the Registrar picked up on two apparent anomalies. The first related to the circumstances of the swearing of the Part 2 affidavit.[4] The second related to the applicant’s claim for interest and the legal basis for such a claim. The Registrar gave the applicant until 1 April 2016 to file any further affidavit material in relation to the first matter.
[4] Creditor’s Petition filed 20 January 2016 at p.4.
Registrar Caporale acted with utmost propriety in identifying those two important issues. The making of an order by which a person’s estate is sequestrated is a very serious step. In tracing the authorities since Cameron and Cole,[5] Collier J made observations to that effect in Mulhern v Pearce (No. 2).[6] It is a step that should only be made after the Court carefully examines all relevant factors, evidentiary and legal matters. Once a sequestration order is made, the person affected is disabled in the conduct of his or her financial affairs, a trustee in bankruptcy is superimposed upon the bankrupt and the bankrupt suffers from the commercial and reputational stigmatization of having been declared a bankrupt. The fact of being made a bankrupt seriously impairs a person’s credit history, it inhibits his or her ability to hold office under the Corporations Act 2001 (Cth) and ownership of that person’s assets vests in the trustee in bankruptcy. The bankrupt becomes amenable to examination during which the most searching investigations can be made into the bankrupt’s previous dealings, none of which could occur in the absence of a sequestration order or specific legislation empowering such investigation. As I have said, the Registrar was keenly attuned to those consequences when identifying the two issues that arose in this case. The consideration of those issues has been of benefit to both the applicant and the respondent in this case.
[5] Cameron v Cole (1944) 68 CLR 571
[6] [2014] FCA 805 at [73].
The petition’s irregularity
Mr Wodak of counsel for the applicant characterised the affidavit irregularity that I address below as a “formal defect” that “ought not and does not invalidate the creditor’s petition”.[7] In opening the case for the applicant, Mr Wodak explained the event that gave rise to the Registrar’s concerns in précis form in the following terms –
[7] Transcript of proceedings, 7 April 2016 at p.8.
HIS HONOUR: - Now, would you mind taking me to what went wrong.
MR WODAK: - Yes, sir. That’s summarised very briefly at paragraph 7 of Mr Tucker’s affidavit and then expanded on. He prepared and executed irregular petitions in error, he recognised the error and intended to discard them, and prepared proper documents – regular documents – but then accidentally discarded the regular documents and filed the irregular documents. That’s the short version. Then there is a detailed expansion below.[8]
[8] Transcript of proceedings, 7 April 2016 at p.10.
When Registrar Caporale first detected an issue arising from
Mr Tucker’s affidavit, the Registrar made orders in the following
terms -
2. By 1 April 2016, the applicant file and serve any further affidavit(s) setting out the circumstances of the purported swearing of the Part 2 affidavit in the creditor’s petition filed on 20 January 2016.[9]
[9] Orders of Registrar Caporale dated 3 March 2016 at Order 2.
The Registrar’s reference to “the purported swearing of the Part 2 affidavit in the creditor’s petition filed on 20 January”[10] was a reference to the “affidavit” of John Raymond Cahir.[11] I say “affidavit” in inverted commas because the document was not truly sworn and thereby did not assume the evidentiary character of an affidavit, properly so called. In that document, Mr Cahir recorded that he was a team leader employed by the applicant in the Debt Management Services, Operations Division of the State Revenue Office. He stated in that document that the statements made in paragraphs 1, 2 and 3 of the creditor’s petition were, within his own knowledge, true. He also stated that the respondent had not, within 21 days after service of the bankruptcy notice, paid the debt or made arrangements to the applicant’s satisfaction for the payment of the debt.
[10] Ibid.
[11] Creditor’s Petition filed 20 January 2016 at p.4.
The Part 2 affidavit appeared on page 4 of the creditor’s petition.[12] Immediately above the words “[signed, deponent]” no signature appeared in the place where one would have expected Mr Cahir to have signed the document had he regularly and properly made that affidavit and duly sworn to its contents. Instead, the mark that Mr Tucker made was Mr Tucker’s signature that appeared against the words
“Before me”and immediately above the words “[signed, authorised witness]” as well as above Mr Tucker’s stamp that he seems to have used as having witnessed Mr Cahir’s signature. Yet Mr Cahir did not sign the document despite Mr Tucker signing, and therefore purportedly attesting to the fact that the document had in fact been sworn by Mr Cahir before Mr Tucker when self-evidently it had not. Without Mr Cahir’s signature to that document, the document assumed no formal status as an affidavit and was of no evidentiary value. Worse, on its face and in the absence of further explanation, a first-blush reading of the document indicated, at least superficially, that
Mr Tucker, a senior solicitor, had falsely attested to his having witnessed the execution of a document that purported to be an affidavit when he had not so witnessed the deponent’s execution of that document. Without explanation, other more sinister issues bearing upon the behaviour of a legal practitioner may have become enlivened.
[12] Creditor’s Petition filed 20 January 2016.
But explanation was duly given.
A substantial explanation was given from the two persons involved, that is to say, by Mr Cahir and by Mr Tucker.
Mr Cahir’s version
On 2 March 2016, Mr Cahir swore that Part 2 of the petition was filed but that the document had not been signed by him. That much is apparent from the face of the document itself as no signature by him appeared on the document. He swore recalling sighting the petition and that he believed he did sign a version of the petition but that the signed version was not filed due to an administrative oversight. He did not say what the so-called administrative oversight was.
On 31 March 2016, Mr Cahir swore a second affidavit to be used in this proceeding as well as in a related proceeding. In that further affidavit, Mr Cahir deposed to the physical layout of the applicant’s offices, the number of employees dealing with debt service management matters and the role of Mr Tucker. Mr Cahir swore that Mr Tucker was “principally responsible for conducting the vast majority of proceedings”[13] filed in the Federal Circuit Court of Australia by the applicant. Mr Cahir swore that Mr Tucker was principally responsible for overseeing legal proceedings in which the applicant sued on tax debts in all levels of the state courts in Victoria.
[13] Affidavit of John Raymond Cahir sworn 31 March 2016 at para.15.
After describing in significant detail the open plan office in which
Mr Tucker worked, in his 31 March 2016 affidavit Mr Cahir deposed to there being readily available scripts to enable a person properly entitled so to do, to administer an oath on a variety of religious texts or an affirmation. Mr Cahir described in his 31 March 2016 affidavit the usual process that was followed when an affidavit verifying the creditor’s petition was prepared and sworn. Mr Cahir’s recital of the usual practice accorded with a proper and professionally responsible method. Mr Cahir descended in his affidavit into matters that went beyond the issues with which I am presently concerned. Helpful as those additional matters were to better understand the way the applicant’s staff usually dealt with discrete matters, it is not necessary for me to go into those additional matters here.
It must be said that Mr Cahir’s careful and systematic explanation of the way affidavits for filing in the bankruptcy jurisdiction of this Court were prepared has been both probative and persuasive. It provided a useful introduction to Mr Tucker’s version of the events in issue.
Mr Tucker’s version
In response to the invitation given by Registrar Caporale on
3 March 2016, Mr Tucker made three affidavits, one on 2 March 2016 and two on 31 March 2016. It is necessary to separately address each.
In his affidavit sworn 2 March 2016, Mr Tucker deposed to his being a senior solicitor employed by the applicant in the Debt Management Services, Operations Divison of the State Revenue Office. He affirmed that Part 2 of the creditor’s petition, as filed, was not signed by
Mr Cahir and that he (Mr Tucker) had affixed his signature to the Cahir affidavit “inadvertently” and that he filed the version that Mr Cahir had not signed “due to an administrative oversight”.[14] He did not say what his inadvertence was nor did he say what the administrative oversight to which he deposed was.
[14] Affidavit of Toby Tucker affirmed 2 March 2016 at para.6.
Be that as it may, in one of his two 31 March 2016 affidavits,
Mr Tucker addressed events at the sign up of Mr Cahir’s “affidavit” in support of the applicant’s creditor’s petition. He affirmed that he recollected in part the preparation and filing of Mr Cahir’s affidavit. He conceded he did not possess a complete and independent recollection of the events as the matters he affirmed as having occurred were drawn from a combination of his actual recollection, his knowledge of his usual practice, his adoption of his daily routine and his belief that he did not on that occasion deviate from his usual practice.
As a matter of human experience, especially in respect of an activity that may be repetitive or which is required to follow a standard,
non-deviation procedure, often, if not ordinarily, the person who performs the activity has no special recollection of the specific event enquired after. Ordinarily (at least in my experience over more than
35 years in the practice of the law) the witness will swear to adopting his or her usual practice then describe in significant detail what that practice is, adding that he or she did not deviate from his or her usual practice in the specific circumstances enquired after. Naturally, according to best evidence principles, more compelling evidence might be given by direct evidence drawn from a specific recollection of a specific event. But in high volume transactions, from example, of which Mr Tucker affirmed that Mr Cahir’s documentation preparation was an instance, the usual practice evidence can and ordinarily will be as persuasive as is direct evidence, particularly in the absence of a contradictor.
Most of the events affirmed by Mr Tucker were prefaced with the phrase “while I do not specifically recall it”, then he described the event that next happened. Relevantly, Mr Tucker affirmed that he prepared what he called “the irregular petitions”.[15] He did not say why those documents were irregular. Suffice it to say, he affirmed that he noticed the error in them and intended to discard them, creating in their place replacement documents that were regular in all respects. He affirmed that he inadvertently disposed of the regular petitions and then electronically filed the irregular petitions.
[15] Affidavit of Toby Tucker affirmed 31 March 2016 at para.7(b).
Over several pages of his affidavit affirmed 31 March 2016, Mr Tucker addressed what he believed he did and in very considerable detail.
Lest it be necessary or desirable to attribute a reason for the creation of the irregular petitions, Mr Tucker affirmed that on the days of 19 and 20 January 2016 he shouldered an unusually intense workload causing him to work more rapidly than usual and leading to interruptions.
Mr Tucker deposed to his many years of practice in the legal profession. Prior to his work with the applicant, he was a solicitor with Corrs Chambers Westgarth. He stated in his affidavit that he took his responsibilities as an officer of the Court very seriously and that he strived at all times to maintain good standing in the courts in which he practised. He stated that he was very disappointed (I infer at a personal level) that the error disclosed in this case became manifest. He stated that he had never deliberately purported to witness an affidavit in circumstances other those in which he physically observed and thereby witnessed the deponent executing the affidavit in his presence.
Mr Tucker affirmed that since the events with which this case was concerned, he has implemented a particular policy within his team and among his colleagues with a view to eliminating any recurrence of the events exhibited here, even to the extent of ensuring that the same pen is used by deponent and witness when an affidavit is sworn or affirmed. Mr Tucker presently enjoys more assistance in his job thereby reducing the fact of and risks associated with work overload.
Mr Tucker’s affidavit of 31 March 2016 was frank, fair and balanced. In no way did he seek to attribute blame elsewhere than with himself. I accept his evidence without reservation. His candour and honesty, while refreshingly freely given, was no less than I would have expected from an officer of the court and the member of an ancient, noble and honourable profession.
Section 306 of the Bankruptcy Act 1966 (Cth)
Mr Wodak directed my attention to s.306 of the Act. It provides as follows –
Formal defect not to invalidate proceedings
(1)Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.
(2)A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a power or function under this Act or under a personal insolvency agreement entered into under this Act does not invalidate an act done by him or her in good faith.[16]
[16] Bankruptcy Act 1966 (Cth), s.306.
Mr Wodak submitted that the irregular petition (to use Mr Tucker’s wording) was a “formal defect” for the purposes of s.306 of the Act and as such, this proceeding was not thereby invalidated by reason of any such formal defect. Mr Wodak submitted that the Act contained no definition of “formal defect” and that this case did not present a factual scenario where the formal defect could not be remedied.[17]
[17] Transcript of proceedings, 7 April 2016 at p.13.
In the second affidavit affirmed by Mr Tucker on 31 March 2016, he exhibited as Exhibit “TT3” a copy of the letter posted to the respondent that notified the respondent of the new hearing date of this application. With that letter Mr Tucker provided a copy of Registrar Caporale’s orders made on 3 March 2016 together with a copy of the amended petition. Mr Tucker’s letter was dated 17 March 2016 and assuming it was posted by ordinary prepaid post, that letter together with its enclosures were likely to have reached the respondent the day after it was posted or thereabouts. Mr Wodak submitted that the respondent did not take issue with that correspondence nor did he appear, notwithstanding that the respondent and the other addressee of the letter were specifically on notice of the issues raised by the Court.
When the so-called amended petition (part of Exhibit “TT3”)[18] is examined, no signature of Mr Cahir appears on the affidavit at all. In other words, the same petition was served on 17 March 2016 as was before the Court on 3 March 2016 when the case was before Registrar Caporale. Exhibit “TT3” did not reveal the way in which the petition was amended. Mr Tucker’s letter did not tell the respondent how the documents served with the 17 March 2016 letter were different to the petition filed nor did Mr Tucker say why another copy of the petition was being provided to the respondent.
[18] Affidavit of Toby Tucker affirmed 31 March 2016.
I accept that notice of the hearing before me on 7 April 2016 was duly given to the respondent, that he did not appear, and that he was called outside court in case he had appeared. Nevertheless the evidence revealed that he had not been served with the regular version of the petition bearing the signature of Mr Cahir on the affidavit verifying paragraphs 1, 2 and 3 of the creditor’s petition.
To my mind, it is axiomatic that before a sequestration order is made, the affected debtor should know the extent of the evidence on which the petitioning creditor relies. He was subsequently served with the petition and the Cahir affidavit in proper form.
Interest calculation
Mr Ternovski, counsel for the applicant, addressed the second of Registrar Caporale’s concerns, that is to say, the statutory basis for the calculation of interest. Understandably, having regard to the fact that the judgment debt was obtained in the Magistrates Court of Victoria, the Registrar enquired about the statutory basis for the calculation of interest applicable to a proceeding in that court. When the case came before me, I asked Mr Ternovski whether interest was calculated under the provisions of the Judgment Debt Recovery Act 1984 (Vic), under the Penalty Interest Rates Act 1983 (Vic), under the Magistrates Court Act 1989 (Vic) (“the M C Act”) or under some altogether different legislation.
Mr Ternovski submitted that interest was calculated and due from the date on which the assessment fell due until payment. He said the
T A Actmade provision for that.
In this case, the statutory scheme for the imposition and payment of the interest the applicant sought arose under the T A Act as has been observed above. The respondent failed to pay sums of duty that were levied and assessed under the Duties Act. Pursuant to s.4 of the T A Act, a “taxation law” for the purposes of the T A Act includes the provision of the Duties Act. Unpaid duty under the Duties Act is “unpaid tax” for the purposes of the T A Act. The phrase “tax” is defined in s.3(1) of the
T A Actto include duty under a taxation law (hence duty assessed under the Duties Act) as well as interest and penalty tax under Part 5 of the T A Act plus “any other amount paid or payable” under a taxation law.
Assessed but unpaid duty payable under the Duties Act is therefore unpaid tax due under a taxation law.
Interest on unpaid tax is dealt with under s.24 of the T A Act. In essence, under that section a person liable to pay tax and who fails to pay such tax incurs on the unpaid amount simple interest calculated on a daily basis from the end of the last day for payment until the day the tax is paid. Under s.27 of the T A Act, interest on a judgment debt that includes unpaid tax continues to accrue until the tax is paid.
Judgment debts not based on liabilities to which the T A Act applies may attract interest calculated in accordance with s.100(7) of the
M C Act. While it is true that the M C Act does not expressly exclude judgment debts to which the T A Act applies, conversely, the T A Act expressly makes provision in respect of interest on judgment debts when those judgment debts are founded on a liability to pay for tax arising, as is the case here, under the Duties Act.
It follows in my judgment that upon a proper construction deduced from the ordinary words of the sections of each piece of legislation (the M C Act on the one hand and the T A Act on the other) the provisions relevant to interest in the T A Act were intended to apply to unpaid tax due under the Duties Act.
At one level, certain provisions of the M C Act and of the T A Act bear upon the question of the application of interest to a judgment debt. At one level, it is arguably open to apply s.100(7) of the M C Act to a judgment debt even where the judgment debt relates to unpaid tax to which the provisions of the T A Act apply and even though s.27 of the T A Act appear to be aimed specifically at a judgment debt that includes unpaid tax as defined in the T A Act.
On behalf of the applicant Mr Ternovski submitted that only s.27 of the T A Act applied to interest upon a judgment debt where that judgment debt was made up in whole or in part of a unpaid tax. In written submissions prepared by both Mr Wodak and Mr Ternovski and later in verbal submissions delivered by Mr Ternovski before me, it was submitted on behalf of the applicant that s.100(7) of the M C Act is a general provision whereas s.27 of the T A Act is a specific provision that deals specifically with a judgment debt that includes unpaid tax. It was also submitted that s.27 of the T A Act was enacted after s.100(7) of the M C Act reflecting the legislative intent that s.27 of the T A Act “overrides”[19] s.100 (7) of the M C Act.
[19] Applicant’s Outline of Submissions filed 1 April 2016 at para.17.
The concept that s.27 of the T Act “overrides” s.100(7) of the M C Act is not a concept that I endorse in the context of the construction of two pieces of state legislation. The issue is not so much as determining the overriding nature of one or the other of those two sections but rather, the issue is distilling the intention of Parliament and ascribing an intention as to which of s.27 of the T A Act or s.100(7) of the M C Act is to apply in the specific context of a judgment debt founded in whole or in part on unpaid tax.
Ultimately, it is the primacy of the words used in the legislation itself that determines the proper construction of the legislation. Since the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (“Project Blue Sky”),[20] Australian law has held that the primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute.[21] That much is consistent with the observations of Barwick CJ in Taylor v Public Service Board (NSW).[22] According to Lord Scarman’s speech in the House of Lords in Southwest Water Authority v Rumble’s[23] as well as the observations of Wilson and Mason JJ in Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation,[24] the meaning of a particular legislative provision must be determined by reference to the language of the instrument viewed as a whole. The context, the general purpose and policy of the provision of a piece of legislation as well as its consistency and fairness are surer guides to meaning than is the topic with which the legislation is constructed.[25] As was held in Toronto Suburban Railway Co v Toronto Corporation,[26] Minister for Lands (NSW) v Jeremias[27] and K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd,[28] the process of construction must always begin with an examination of the context of the provision that is being construed.
[20] (1998) 194 CLR 355.
[21] (1998) 194 CLR 355 at [69].
[22] (1976) 137 CLR 208.
[23] [1985] AC 609.
[24] (1981) 147 CLR 297.
[25] (1998) 194 CLR 355 at [69].
[26] [1915] AC 590,597.
[27] (1917) 23 CLR 322
[28] (1985) 157 CLR 309.
High Court authority of very long standing has prescribed that a court construing a statutory provision must strive to give meaning to every word of the relevant provision. So much was held in
TheCommonwealth v Baume[29] as well as in Chu Kheng Lim v Minister for Immigration.[30] No sentence, clause or word is superfluous, void or insignificant if by any other construction they may all be made useful and pertinent.[31]
[29] (1905) 2 CLR 405, 414 and 419.
[30] (1992) 176 CLR 1, 12.
[31] R v Berchet [1794] EngR 1806.
In Project Blue Sky the majority pointed out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended those words to have.[32] Ordinarily, that meaning will correspond with the grammatical meaning of the relevant provision.
[32] (1998) 194 CLR 355 (at [78]).
More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[33] the majority (Hayne, Heydon, Crennan and
Kiefel JJ) held that the task of statutory construction must begin with a consideration of the text itself and that historical considerations and extrinsic material cannot be relied upon to displace the clear meaning of the text.[34] Other decisions of the High Court reflect similar reasoning such as Yanner v Eaton,[35] Yarmirr v Northern Territory,[36] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue,[37] Stevens v Kabushiki Kaisha Sony Computer Entertainment,[38] Carr v Western Australia,[39] Director of Public Prosecutions for Victoria v Le[40] and Northern Territory v Collins.[41]
[33] (2009) 239 CLR 27.
[34] (2009) 239 CLR 27 at [47].
[35] (1999) 201 CLR 351, 366 (at [17]).
[36] (2001) 208 CLR 1, 38–39 (at [13]–[14]).
[37] (2001) 207 CLR 72.
[38] (2005) 224 CLR 193.
[39] (2007) 232 CLR 138.
[40] (2007) 232 CLR 562.
[41] (2008) 235 CLR 619.
In many respects, modern Australian jurisprudence on the subject of statutory interpretation has placed former High Court Justice, the Honourable Justice Kenneth M Hayne at the vanguard. His extra- judicial writing on point is illuminating: The Honourable Justice Kenneth Hayne AC, Statutes, Intentions and Courts: What Place Does The Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction?[42]
[42] (2014) 13(2) Oxford Commonwealth Law Journal, 271.
Applying those canons of construction to the facts of this case, I have carefully examined the whole of the provisions in each of the M C Act and the T A Act. I have examined the context, general purpose and policy of s.100(7) of the M C Act as well as s.27 of the T A Act, particularly the context in which each section finds itself along with the purpose and policy to which each section is directed. In undertaking that examination, I have carefully considered each word, clause and sentence of s.100(7) of the M C Act as well as s.27 of the T A Act. In seeking to distil the proper construction of s.100(7) of the M C Act and s.27 of the T A Act, the text of the legislation itself has been the lamp that has lit the way.
In my view, s.100(7) of the M C Act is of general application to the calculation of interest. That provision does not apply to judgment debts to which the provisions of the T A Act apply. In the specific context of a taxation law (as defined) the calculation of a debt payable under a taxation law and the calculation of interest on a judgment debt arising out of non-payment of an amount arising under a taxation law, the provisions of the T A Act operate as a code rendering inapplicable legislation such as the M C Act.
Having examined the legislative basis for the amounts of interest claimed in this case by the applicant as well as the arithmetical calculations themselves, I am satisfied that the applicant has properly calculated the sums legally due by the respondent. Mr Tucker exhibited a table[43] that set out the rate over various periods between 1 July 2001 to 30 June 2016, the lowest of which was 10.15% in the period
1 July 2015 to 30 June 2016 and the highest was 15.75% in the period 1 July 2008 to 30 June 2009. Over the corresponding period, the lowest market rate was 2.15% in the period 1 July 2015 to 30 June 2016 and the highest was 7.75% in the period 1 July 2008 to 30 June 2009.
[43] Affidavit of Toby Tucker affirmed 31 March 2016 at Exhibit “TT2”.
Conclusion
In my judgment, the applicant has proved its entitlement to the making of a sequestration order against the estate of the respondent. Trustees in bankruptcy have consented to act if appointed.
I make orders in accordance with the applicant’s minute.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 20 May 2016
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