Deputy Commissioner of Taxation v Jetbird Holdings Pty Ltd - [2004] WASC 66

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DEPUTY COMMISSIONER OF TAXATION -v- JETBIRD HOLDINGS PTY LTD [2004] WASC 66

CORAM: MASTER NEWNES

HEARD: 2 MARCH 2004

DELIVERED : 13 APRIL 2004

FILE NO/S: COR 290 of 2003

BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Plaintiff
AND
JETBIRD HOLDINGS PTY LTD (ACN 075 504 237)
Defendant

Catchwords:

Corporations - Winding up - Statutory demand - Facsimile of creditor's signature affixed by rubber stamp - Whether statutory demand duly signed under s 459E(2)(f)

Legislation:

Corporation Act 2001 (Cth), s 459E(2)(f)

Taxation Administration Act 1953 (Cth), s 8

Result:

Winding up order made

Category: B

Representation:

Counsel:

Plaintiff: Ms E Chong
Defendant: Mr I A Morison

Solicitors:

Plaintiff: Australian Taxation Office
Defendant: Geoffrey Coad

Case(s) referred to in judgment(s):

Dennis Hanger v Kanambra Pty Ltd, unreported; Fed Ct; Heerey J; 21 February 1992
Deputy Commissioner of Taxation (Vic) v Boxshall (1988) 83 ALR 175 (FC)
Deputy Commissioner of Taxation (Vic) v Players' Entertainment Network Pty Ltd & Anor (1988) 13 ACLR 541
Deputy Commissioner of Taxation v Pollock, unreported; SCt of WA; Library No 930545; 12 October 1993
Dooney v Henry (2000) 174 ALR 41
Goodman v J Eban Ltd [1954] 1 QB 550
Jenkins v Gaisford [1863] 164 ER 1208
McRae v Coulton (1986) 7 NSWLR 644 (CA)
MP Management (Australia) Pty Ltd v Churben [2002] QSC 320
Muirhead & Anor v Commonwealth Bank of Australia (1997) 1 Qd R 567
O'Reilly v Commissioner of the State Bank of Victoria (1983) 153 CLR 1
R v Justices of Kent [1873] LR 8 QB 305
Vincent v Johnstone Shire Council (CA) (Qld) App 87 of 1995

Case(s) also cited:

Achiever Investments Pty Ltd v Newtone Pty Ltd [2002] WASC 71
Aizen v Essendon Travel (Vic) Pty Ltd (1994) 12 ACLC 299
D Thomas & Co Pty Ltd v Deputy Commissioner of Taxation [1999] QSC 367
Daewoo Australia Pty Ltd v Suncorp Metway Pty Ltd (2000) 33 ACSR 481
David Grant & Co Pty Ltd & Ors v Westpac Banking Corp (1994) 14 ACSR 569
Deputy Commissioner of Taxation v Australian Machinery Investment Co (1945) 47 WALR 9
Deputy Commissioner of Taxation v Collie [1998] 2 VR 106
Deputy Commissioner of Taxation v Ho (1996) 32 ATR 269
Deputy Commissioner of Taxation v Loftus [2002] FSC 68; (2002) 49 ATR 131
Deputy Commissioner of Taxation v Mackey (1982) 13 ATR 547
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
Engler v Commissioner of Taxation (No 2) [2003] FCA 411
F J Bloeman Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 360
GS Technology Pty Ltd v GSA Industries (Aust) Pty Ltd (1988) 43 APR 409
Hamilhall Pty Ltd (In Liq) v A T Phillips Pty Ltd (1994) 15 ACSR 247
In the matter of Simionato Holdings Pty Ltd (1997) 15 ACLC 477
McAndrew v Federal Commissioner of Taxation (1956) 98 CLR 263
Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACSR 362
Muirhead & Anor v Commonwealth Bank of Australia (1996) 139 ALR 561
Nitz v Evans (1993) 19 MVR 55
Pikor v Barrett (1990) 11 MVR 345
Sharp & Anor v Deputy Commissioner of Taxation (NSW) & Ors (1988) 86 ALR 77
Snow v Deputy Federal Commissioner of Taxation (WA) (1987) 14 FCR 119
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 24 ACSR 353
The State of His Honour Judge P J Rowe [1951] IR 172
Topfelt Pty Ltd v State Bank of NSW Ltd (1993) 120 ALR 155
Wobelea Pty Ltd v Deputy Commissioner of Taxation (1996) 20 ACSR 436

MASTER NEWNES: This is an application by the plaintiff to wind up the defendant on the ground of insolvency, the defendant having failed to comply with a statutory demand dated 1 August 2003 within 21 days of service.
The application was opposed by the defendant on the sole ground that the statutory demand was a nullity because it was not signed "by or on behalf of the creditor" within the meaning of s 459E(2)(f) of the Corporations Act 2001 (Cth) (the "Act"). The signature on the statutory demand was a facsimile of the signature of Erin Holland, Deputy Commissioner of Taxation, and had been affixed by means of a rubber stamp. It had been affixed by Ms Robinson, an officer of the Australian Taxation Office.
The application has a somewhat unusual history. It was initially agreed by the parties that it could be determined on written submissions. The written submissions which were subsequently filed raised issues which were not sufficiently canvassed and I heard oral argument on 2 March 2004. In view of matters raised in the course of that argument, I granted leave to the parties to put in further written submissions. The defendant's submissions were filed on 4 March 2004 and the plaintiff's on 12 March 2004.
The defendant accepted that the plaintiff had power to authorise a person to sign a document on her behalf: Dooney v Henry (2000) 174 ALR 41. The defendant submitted, however, that that could not be done by affixing to the statutory demand a facsimile of the plaintiff's signature. The statutory demand was not duly signed within the meaning of s 459E(2)(f) unless it was signed by Ms Holland personally, or on her behalf by her authorised delegate signing personally in the delegate's own name. In the alternative, it was submitted that if the signature on the statutory demand could be affixed by a rubber stamp, the officer of the department who affixed it, Ms Robinson, was not authorised to do so.
In Dooney v Henry (supra), Callinan J found that a statutory demand signed by affixing to it a facsimile copy of the signature of the Deputy Commissioner of Taxation was duly signed. The defendant sought to distinguish that case on the basis that it was not there in issue that the signature had to be a personal signature; what was in issue there was whether there had been an unlawful sub‑delegation by the Deputy Commissioner of the power to sign the statutory demand. I am not convinced that the effect of the decision is so limited, but I consider the defendant's contention must fail in any event.
It is clear that under s 8 of the Taxation Administration Act 1953 (Cth), the Commissioner of Taxation may delegate to, among others, a Deputy Commissioner of Taxation, all or any of the Commissioner's powers or functions under a taxation law or any other law of the Commonwealth or Territory, other than the Commissioner's powers of delegation.
On 1 November 2002, the Commissioner delegated his powers and functions under certain specified Acts and Regulations to, among others, the person from time to time holding or occupying the position, or assigned the duties, of Deputy Commissioner of Taxation, Operations Program. The Acts referred to in the instrument of delegation included the Corporations Law. A copy of the instrument of delegation is annexed to an affidavit of Ms Robinson sworn 5 December 2003.
On 1 November 2002, the Commissioner assigned to Ms Holland the duties of Deputy Commissioner of Taxation, Operations Program, effective from 1 November 2002 to 31 January 2003. On 3 February 2003, the Commissioner assigned to Ms Holland the same duties effective from 3 February 2003 to 17 February 2003. On 4 February 2003, the Commissioner announced the appointment of Ms Holland to the position of Deputy Commissioner of Taxation, Operations Program to take effect from 17 February 2003. Copies of the documents constituting the relevant assignments and the announcement are annexed to Ms Robinson's affidavit of 5 December 2003.
It follows that, on 1 August 2003 when the statutory demand was signed, Ms Holland was authorised by the Commissioner to exercise all of the Commissioner's powers and functions under the Corporations Act. It was not in dispute that the Commissioner's powers included the power to sign and issue a statutory demand under the Corporations Act.
The defendant submitted, however, that the statutory demand was not signed by or on behalf of Ms Holland within the meaning of s 459E(2)(f) by impressing upon it a facsimile of Ms Holland's signature by means of a rubber stamp.
The defendant acknowledged that s 459E(2)(f) did not expressly prohibit a signature being affixed by a rubber stamp, but submitted that that provision implicitly required a personal signature. If a facsimile signature were sufficient, it was argued, there would be no need for the additional words "or on behalf of". Therefore, the statutory demand must either be signed personally by the creditor or personally by a delegate on behalf of the creditor. It could not be signed by affixing a copy of a signature by means of a rubber stamp.
It is well‑established that at common law a document is signed by a person if it is signed in that person's name by someone with authority to do so: Jenkins v Gaisford [1863] 164 ER 1208; O'Reilly v Commissioner of the State Bank of Victoria (1983) 153 CLR 1 per Gibbs CJ at 10 ‑ 11; McRae v Coulton (1986) 7 NSWLR 644 (CA); Deputy Commissioner of Taxation (Vic) v Boxshall (1988) 83 ALR 175 (FC); Vincent v Johnstone Shire Council (CA) (Qld) App 87 of 1995); Muirhead & Anor v Commonwealth Bank of Australia (1997) 1 Qd R 567 (CA); Dooney v Henry (supra) per Callinan J at 45.
In Jenkins v Gaisford (supra), a question arose as to the validity of a codicil to a Will under s 9 of the Wills Act 1863 (UK), which required any codicil to be signed by the testator. Because of the testator's increasing infirmity, he had an engraving of his signature made and this was used under his direction by an agent to sign the codicil. The Court concluded the codicil was duly executed. The Court said (at 1209):
"It has been decided that a testator sufficiently signs by making his mark, and I think it was rightly contended that the word 'signed' in that section must have the same meaning whether the signature is made by the testator himself or by some other person in his presence or by his direction, and therefore a mark made by some other person under such circumstances must suffice. Now, whether the mark is made by a pen or by some other instrument cannot make any difference, neither can it in reason make a difference that a facsimile of the whole name was impressed on the Will instead of a mere mark or X. The mark made by the instrument or stamp used was intended to stand for and represent the signature of the testator."
In Goodman v J Eban Ltd [1954] 1 QB 550, the issue was whether a bill of costs had been "signed by the solicitor" for the purposes of the relevant legislation by virtue of the fact that the bill of costs was accompanied by a letter which bore a facsimile signature impressed by a rubber stamp. In upholding the sufficiency of the stamp's signature, Romer LJ said (at 563):
"It is stated in Stroud's Judicial Dictionary (3rd edition) … that generally speaking a signature is the writing, or otherwise fixing, a person's name or a mark to represent his name, by himself or by his authority with the intention of authenticating a document as being that of, or as binding on, the person whose name or mark is so written or affixed. This statement appears to me to be in accordance with the authorities … "
See also Deputy Commissioner of Taxation v Pollock, unreported; SCt of WA; Library No 930545; 12 October 1993, MP Management (Australia) Pty Ltd v Churben [2002] QSC 320.
There may, however, be cases where a statute requires a personal signature: R v Justices of Kent [1873] LR 8 QB 305; O'Reilly v The Commissioner of the State Bank of Victoria (supra). If a statute requires that a document has to be signed personally, the duty of signing cannot be delegated to a third person: O'Reilly v The Commissioner of the State Bank of Victoria (supra) per Gibbs CJ at 11.
The defendant submitted that this was such a case; that under s 459E(2)(f) a personal signature was required. Accordingly, where a statutory demand is signed by the creditor, it must be signed personally by the creditor; that duty cannot be delegated. The only basis for that contention, however, appeared to be that otherwise the additional words in s 459E(2)(f), "or on behalf of the creditor", would be unnecessary.
I do not see any reason why provision for a statutory demand to be signed "on behalf of" a creditor should affect the manner in which the creditor itself may sign the statutory demand. The section simply provides two means by which a statutory demand may be signed. It may be signed by an agent, in the agent's own name, on behalf of the creditor, or it may be signed by the creditor in the creditor's own name. Such demands are often prepared by solicitors, who sign the demand in their own name on behalf of the creditor and arrange service of it. No doubt it is often practical and convenient for the creditor that their solicitors do so. But the fact that an agent may sign on behalf of a creditor seems to me irrelevant to the manner in which a creditor may sign a demand where the creditor chooses to do so. I can see no basis in s 459E(2)(f) for the conclusion that the creditor should be required to do so by a personal signature, rather than by other accepted means by which documents may be signed.
The common law rule, that a document is signed by a person if it is signed in that person's name - including by affixing a facsimile copy of their signature by means of a rubber stamp - by someone with authority to do so, is well established and of long standing. It is a rule well adapted to the large, diffuse organisations common in modern business and government. If Parliament had intended to displace the application of that rule in s 459E(2)(f) one would have expected it to do so by clear language. There is nothing, in my opinion, in s 459E(2)(f) that indicates any intention to do so.
I do not therefore accept that a personal signature is required by s 459E(2)(f). In my view, a statutory demand may be signed in the name of the creditor if it is signed in their name with their authority.
It also follows that I do not accept the defendant's submission, put in its written submission of 4 March 2004, that if Ms Holland authorised Ms Robinson to affix a facsimile of Ms Holland's signature that was an unlawful sub‑delegation of the powers delegated to Ms Holland by the Commissioner. In Dooney v Henry (supra), Callinan J found that no question of sub‑delegation arises in these circumstances. In O'Reilly v The Commissioner of the State Bank of Victoria (supra), Wilson J (at 30) noted that a clear distinction is to be drawn between the delegation of a power and the exercise of that power through servants or agents. In my view, the authorisation of Ms Robinson to affix Ms Holland's signature involved no delegation of Ms Holland's powers.
The defendant also put in issue the question of the authority of Ms Robinson to affix Ms Holland's signature. The defendant submitted that, even if the affixing of a facsimile signature was in law effective, there was no evidence that Ms Robinson was authorised to affix the stamp in this case.
In my view, there is no substance in this submission. There is nothing to suggest that the affixing of the signature was not authorised. In the absence of any evidence of a lack of authority, it was not necessary for the plaintiff affirmatively to approve such authority: Deputy Commissioner of Taxation (Vic) v Players' Entertainment Network Pty Ltd & Anor (1988) 13 ACLR 541; Dennis Hanger v Kanambra Pty Ltd, unreported; Fed Ct; Heerey J; 21 February 1992. In fact, Ms Robinson has deposed in her affidavit of 5 December 2003 that she had express authority. Annexed to the affidavit is a document dated 1 November 2002, signed by Ms Holland in her capacity as Deputy Commissioner of Taxation, Operations Program, in which Ms Holland authorised officers holding the position of APS Level 2 and above "in relation to any recovery action; - (a) to affix a facsimile of the Deputy Commissioner of Taxation's signature on any certificate, notice or other document". Ms Robinson has deposed to the fact that at the relevant time she was an officer holding the position of APS Level 4. It is apparent from the documents to which I referred earlier that as at 1 November 2002 Ms Holland had been assigned the duties of Deputy Commissioner of Taxation, Operations Program.
In my view, the authorisation of 1 November 2002 applied to a statutory demand issued by the Deputy Commissioner of Taxation and, accordingly, Ms Robinson had express authority to affix a facsimile of Ms Holland's signature to the statutory demand in this case.
I consider that the defendant's objections to the statutory demand must fail. I am satisfied that the plaintiff is entitled to the winding‑up order it seeks and I would make orders accordingly.