Deputy Commissioner of Taxation v Soong

[2011] HCATrans 212

[2011] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S122 of 2011

B e t w e e n -

DEPUTY COMMISSIONER OF TAXATION

Applicant

and

DESLEY SOONG

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 AUGUST 2011, AT 10.37 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MS M.A. PERRY, QC and MS S.M. FODA for the applicant.  (instructed by Australian Government Solicitor)

MR S.D. ROBB, QC:   May it please the Court, I appear with my learned friend, MR S.J. FREE, for the respondent.  (instructed by Diamond Conway Lawyers)

MR GAGELER:   Your Honours will have seen from the slim application book that the case raises a short question of construction with significant consequences.

FRENCH CJ:   But which has been overtaken of course by amendments, so it is really the consequences you are focusing on.

MR GAGELER:   In the interim. 

FRENCH CJ:   Is there any question of ongoing principle that is raised by the ‑ ‑ ‑

MR GAGELER: There is a question of the nature of the test to be applied to determine whether or not there is, in terms of section 28A and 29 of the Acts Interpretation Act a contrary intention manifested in the scheme of an Act, but, your Honours, there is, in the interim, something quite significant to be said about the consequences here.  Our point is that the Court of Appeal was correct as a matter of construction the first time, but sufficiently for special leave, in our submission, the Court of Appeal was not clearly wrong the first time and $143 million in revenue have now been put in jeopardy because the Court of Appeal has changed its mind.

On that point, before I develop the point of construction, your Honours will note from the affidavit that is contained in the application book at page 74, line 30, it is shown that the ATO changed its practice in 2008 to follow Meredith and to be told in 2011 by a differently constituted Court of Appeal that Meredith was wrong, now affects the liability of some 2,000 taxpayers – that is noted at page 76, about line 20 – for some $200 million, noted in the same place, of which – as shown at page 105, about line 50 – some $143 million is likely to be practically irrecoverable. 

FRENCH CJ:   This is all in the nature of penalties?

MR GAGELER:   Yes, director penalties.  So there is that significant consequence, but there is, your Honours, a question of principle that relates to the point of construction itself.  To make that point good, rather than taking your Honours to the detail of the judgment below, can I take your Honours to the provisions in question.  Your Honours should have an applicant’s book of authorities and legislation and your Honours have within that, beginning at page 23, an extract from the 1936 Act, Subdivision B of Division 9 of Part VI, which deals with directors penalties.

The last time the High Court looked at these provisions was in Woodhams in 2000 and what emerges from that case and what emerges in any event from a clear reading of the provisions is that the purpose of this legislative scheme is to ensure that a company that makes PAYG deductions either meets its obligations to remit those deductions to the Commissioner or goes quite promptly into either liquidation or administration and the means adopted to achieve that purpose is to impose a continuing obligation on the directors of the company to ensure that the company meets those obligations.  You see that at page 25 in section 222AOB. 

Subsection (1) is the obligation and, over the page, subsection (3) makes clear that that is a continuing obligation.  The obligation is then enforceable by penalty, that is section 222AOC at page 28.  That penalty is recoverable by the Commissioner in civil proceedings but only after giving the 14 days notice required by section 222AOE.  Section 222AOE was described in Woodhams as a notice before action provision requiring the Commissioner to give 14 days notice before commencing a civil action, that giving then the director the last chance to comply with the continuing obligation so as to have the benefit of the remission for which section 222AOG then provides.  The question, and the only question in this case, is from what date does that 14 day notice period run in ‑ ‑ ‑

CRENNAN J:   You are going to take us to 222AOF and show a contrary intention?

MR GAGELER:   Yes.  I was going to say, you start with section 222AOE and you would read section 222AOE and read the word “gives” there in conjunction naturally with the provisions of the Acts Interpretation Act.  Your Honours have the provisions of the Acts Interpretation Act at pages 34 and 35.  So in section 222AOE you start by reading the word “gives”.  You then turn, naturally, the Acts Interpretation Act and you see within section 28A the different ways in which a document can be given, unless the contrary intention appears. One way is to give it to the person personally. The other way is to send 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 –

You then go to section 29, naturally, in conjunction with section 28A and you find that in the case of giving by post:

the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter –

and then as to the timing ‑

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.

Those provisions applied to section 222AOE, that is, 222AOE read with section 28A and with section 29, allow for the 14‑day period to run from an uncertain date, either the date of actual delivery which may not be the date of actual receipt or the date of deemed delivery provided for in section 29. You then, though, move to section 222AOF and, in our submission, the relationship between section 222AOE and section 222AOF is that section 222AOF provides a specific and self‑contained method of giving notice in the particular class of case to which it refers. It says:

If it appears from ASIC documents that a person is, or has been within the last 7 days, a director of the company –

That is a very specific situation and it applies in a legislative context where a person who is a director of a company has obligations under the Corporations Act to keep the ASIC records up to date in that very particular case –

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.

Your Honours, in our submission, properly read, section 222AOF is saying, despite the general provisions in sections 28A and 29 of the Acts Interpretation Act in this particular and specific class of case, there is a particular method of giving notice and the act of giving notice for the purposes of section 222AOE is complete at the point of sending. The point of the note that then follows is to make clear that the provisions of sections 28A and 29 of the Acts Interpretation Act are not wholly displaced by this specific method of fulfilling the giving in section 222AOE.

FRENCH CJ:   That would be so without the note, would it not?

MR GAGELER:   That would be so without the note.  The note is to make clear that the provision in section 222AOF is facultative and not exclusive of the way of giving notice under section 222AOE. 

CRENNAN J: Posting under 222AOF is not the same as posting under section 29. It must be different, must it not? Does not your whole argument turn on this?

MR GAGELER:   No, “posting” is an ordinary English word and can be read as meaning nothing more than that in section 222AOF, that is, it is not necessary to have any explanation of the content of the word “post” for section 222AOF to be given its ordinary operation and, importantly, to fix the date of the notice at the point of posting.

CRENNAN J: That is the point though. I mean, you are contending no resort to section 29.

MR GAGELER:   Yes.  Your Honour, the benefit of such a construction is the benefit of certainty, that is, instead of the variable date from which the 14‑day period runs that one might have in circumstances where section 222AOF does not apply, one has a fixed date from which the 14‑day period runs known to everyone, that is, known to the Commissioner and known to the recipient it is 14 days from the date of notice, and that benefit of certainty is coherent with the legislative policy, as Justice Basten said in Meredith and as is confirmed in the express provisions of the current form of the legislation that your Honours would have seen as a postscript to the judgment of Justice Gzell at page 52 of the application book.  So as a matter of legislative policy, legislative coherence, this requirement of certainty so that everybody knows where they stand is perfectly understandable.

FRENCH CJ:   The function of the note is governed by section 95‑100 of the Act, is it?

MR GAGELER:   Yes, it is made a part of the Act.

FRENCH CJ:   So it more than obviously a helpful observation.

MR GAGELER:   That is right.  The case turns partly on the construction of the note, what does the word also mean and, in our respectful submission, consistently with the view taken by Justice Basten, what the note is saying is when you read section 222AOF, do not forget that there are other ways that notice may be given in fulfilment of section 222AOE.

FRENCH CJ:   So the statement of relevance in the note is not relevance to the section to which it is a note?

MR GAGELER:   No, and it points ‑ ‑ ‑

FRENCH CJ:   It is relevance to other things.

MR GAGELER:   That is because the section to which it is a note is a section that deals with the section before and the note also deals with the section before and says, do not forget there are other ways that the section before can be fulfilled.  This is a very specific way and it is the specificity of this way, self‑contained and clear, concrete and certain, that Justice Basten emphasised in the earlier Meredith decision as producing a result that was, one, consistent with the legislative scheme and, two, manifesting of a contrary intention for the purpose of the provisions of the Acts Interpretation Act.  Your Honours have Meredith earlier in the same bundle.  If you go back to page 16 of the bundle, paragraph [67] in the judgment of Justice Basten, he said, at the beginning of that paragraph:

The phrase “contrary intention” in the Acts Interpretation Act may readily be seen to give way a particular provision in another Act, and especially one dealing with a specific subject matter.

It was really that principle that he applied when he got to page 18 of the bundle and at paragraph [75] placing section 222AOF, as he says at the beginning of that paragraph, within the broader scheme of the Division, he says at the middle of the paragraph:

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.

Then his Honour’s correct interpretation of the note appears at page 19 at the end of paragraph [79] when he says, in the last sentence:

the note does not purport to qualify or affect the operation of s 222AOF:  it refers to a further means –

and we would say the residual means –

of giving notice under s 222AOE.

All of these notices ‑ ‑ ‑

CRENNAN J:   Meredith was not concerned with the 14 days, was it?

MR GAGELER:   Not specifically in the terms ‑ ‑ ‑

CRENNAN J:   Or to do with the ‑ ‑ ‑

MR GAGELER:   That is right.

CRENNAN J:   Yes.

MR GAGELER:   But it was an authority as to the construction of section 222AOF that went to this timing of the giving of the notice and was seen as an authority that could not be distinguished by the present Court of Appeal, but rather to be overruled as clearly wrong.  Your Honours, it was not clearly wrong.  It was a correct interpretation of section 222AOF of the note.  It is correct application of the principle as to when a contrary intention will be manifested for the purposes of the Acts Interpretation Act and its coherence with legislative policy is confirmed ‑ ‑ ‑

FRENCH CJ:   But we are not concerned, of course, here with whether the Court of Appeal applied a wrong principle in overruling one of its own previous decisions, we are just concerned with the merits of the construction issue.  I am not saying you have contended that, I just wanted to make sure you ‑ ‑ ‑

MR GAGELER:   Well, the Court of Appeal ‑ ‑ ‑

FRENCH CJ:   You say they were not clearly wrong; they were right.

MR GAGELER:   We say they were not clearly wrong and we cannot find fault with the way in which the Court of Appeal articulated the principles as departing from a previous decision.  However, in the application of those principles, the Court of Appeal, in our submission, was quite wrong.  That is, we do say that the Court of Appeal should not have found itself on the earlier occasion to have been clearly wrong.  We realise, however, that to win the appeal we still have to win on the point of construction.  If the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Solicitor.  Yes, Mr Robb.

MR ROBB:   Your Honours, I noticed belatedly that the applicant’s book of materials did not include section 222ANA.  Could I have leave to hand your Honour those?

CRENNAN J:   Yes.

FRENCH CJ:   Yes.

MR ROBB:   This is one of those statutes which contains a statement of its objects in relation to the relevant Division.  If it please the Court, I would first deal with the substantive issue and then come to the particular basis that is proffered by the applicant in this case for there to be general importance in relation to the special leave question.  Your Honours will see from section 222ANA that the object of Division 7 when it existed was:

(1)The purpose of this Division is to ensure that a company either meets its obligations under Division 8 of this Act . . . or goes promptly into voluntary administration under Part 5.3A of the Corporations Act2001 or into liquidation.

The second proposition is:

(2)The Division imposes a duty on the directors to cause the company to do so.  The duty is enforced by penalties.  However, a penalty can be recovered only if the Commissioner gives written notice to the person concerned.  The penalty is automatically remitted if the company meets its obligations, or goes into voluntary administration or liquidation, within 14 days after the notice is given.

It follows, in our respectful submission, that while Division 9 is ultimately concerned with the protection of the revenue, the direct and immediate purpose is not to secure to the Commissioner an entitlement to receive the penalty from the director in lieu of the company.  The primary object is, so to speak, to use the possibility of the penalty as a stick to encourage the directors to do what the object is and that is, either pay or secure payment of the unremitted instalments or to put the company into administration or liquidation and, in our submission, that has important though somewhat subtle significance for the purpose of interpreting the following sections of the Division.  I will come to it a little bit more when my learned friend talks about the importance of certainty.

My friend says that there is a beneficial certainty if the notice is given at the time it is posted and we will say that is not a relevant certainty because from the perspective of the recipient, the date when the notice is posted is, in many circumstances, an unknown.  The earliest date which is a certain date of giving is the date the letter is received in one’s postal address.  If I could then move on to section 222AOE.  Your Honours will find that page 29 of the applicant’s materials.  I will not go over the sections that my learned friend has already taken the Court to unless I have specific reason to do so.

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 [the relevant] details of the unpaid amount . . . 

(b)states that the person is liable to pay to the Commissioner, by way of the penalty, [a certain] amount . . . but that the penalty will be remitted if, at the end of 14 days after the notice is given –

one of the objectives stated in section 222ANA is achieved.  This is additional to the material that my learned friend took your Honour to.  The statute itself requires that the notice state something, and it does.  It is not before your Honour, but the notice in this case that was received by Mrs Soong said that the penalty would be remitted at the end of 14 days after the notice is given, certain things have happened, and she achieved those things with 14 days of the date of the notice and the covering letter ‑ ‑ ‑

FRENCH CJ:   It was 15 days after posting, was it?

MR ROBB:   Yes.  That is why this is a very stark case.  In fact, the objective of the legislation was achieved.  The question is whether it was achieved one day late, so that the Commissioner achieves the objective and gets the money as well to the extent that it can be recovered.  But, in our submission, that is very important because (a) the Parliament itself specified what the notice had to say and it used the word “given”, (b) so far as the recipient of the notice is concerned, subject to that recipient having ready access to the Income Tax Assessment Act and other matters, the recipient is most likely to act upon the notice and it should be presumed that that is what the Parliament understood and intended would happen.

So the relevant thing is that the person under jeopardy of these consequences is standing at their letterbox looking at a notice of a very official type from the Commissioner or Deputy Commissioner that requires that something be done within 14 days of the notice being given.  In our submission, that is actually relevant to the interpretation of the provisions and it would assist taking a view that the word “given” be understood in a manner which it would be thought that most recipients would understand.  The question is, how many people think they were given a notice at some date before it is received in their letterbox which is inherently a date which is in many cases unknowable.

In this case, of course, it happens that the date on the notice was the day preceding receipt in the letterbox, so there was only one day, but in any case where the notice was dated more than one day before it went into the letterbox, this certainty, which is urged upon the Court, is a certainty from the Commissioner’s perspective but is absolutely uncertain from the recipient’s perspective.  The recipient will not, in our submission, and does not have to presume that the notice was posted on the date that it bears and if Justice Basten’s view is correct, it is not the date of the notice, it is the date of posting which is the date that the notice is given.  Then your Honours, one turns over to page 30 to section 222AOF, “How notice may be given”.  This, of course, is the essential provision:

If it appears from ASIC documents that . . . 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 –

et cetera.  Then there is a note which is accepted by all to be part of the statute:

Sections 28A and 29 of the Acts Interpretation Act 1901 are also relevant to giving a notice under section 222AOE.

In our submission, first, the natural reading of subsection (1) is that it authorises an additional manner of service and says nothing at all about the date of effect of the service. There is nothing specific that, frankly, lawyers would read, let alone members of the public, as going further than authorising the giving in a particular manner. When one goes to section 28A, I do not need to take your Honour to that, that is clearly a list of alternative methods of giving service or notice, but the last page of the document contains section 29. I will not stand here and read it to your Honours, but, in our submission, when one reads section 29(1) as the Court of Appeal in this case did, where it says:

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 . . . 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.

FRENCH CJ:   So you would say, in effect, that 222AOF just hooks in the ASIC address?

MR ROBB:   Yes.

CRENNAN J:   It talks about two ways of going about giving the notice.

MR ROBB:   Yes.

CRENNAN J:   I think as was pointed out in the Court of Appeal, if it is left on 1 July versus being posted on 1 July, there will be different days available; 14 versus 13 on one construction.

MR ROBB: Could I just say about that, it so happens that all of the other methods of giving either are leaving it at the address, which is one of the matters dealt with in 222AOF, it is clear that the giving will take place at the certain time when the document is left on the premises. In relation to the alternatives in section 28A, I will not detain the Court with them, but in those cases there is clarity because either it is an alternative means of service, so it is personal service, or it is, for instance, posting to the last known place of address, and in that case section 29 will apply. So shortly put, the only candidate for the proposition that service happens before delivery into the post box of the recipient is the second alternative in section 222AOF, which is the one that is relevant in this case.

So consistency and certainty and, let me say it, fairness is only served by treating the second alternative in section 222AOF in the same manner as all the other possibilities and it obviates the risk that a person standing at their letterbox cannot know when the start gun went off, that will depend upon the facts.  It obviates the risks that some people get longer periods than others, because you cannot assume in Australia that the post is always delivered the next day, and it does increase the certainty.  In fact, there will always be risks of doubt if people are not wise enough to clear their letterboxes everyday.

So one does not have absolute certainty, but, in our submission, the certainty that is fair is that adopted by the Court of Appeal and that when one looks at the operative provisions in the judgment of Justice Gzell, who effectively spoke for the Court of Appeal – they are at application books 47 to 49 – essentially what I have said is simply what his Honour had to say and it started from the proposition that when Justice Basten treated the note as establishing a complete alternative to section 222AOF, that is true for section 28A, but on the ordinary wording of section 29 is not true and, as the Chief Justice I believe mentioned, the note is a note to section 222AOF. It would be natural to think that it was relevant to and potentially qualified that statutory provision. May I just move to another point ‑ ‑ ‑

CRENNAN J:   I suppose I am returning to a point, but it means if one director had the notice left at his premises and another director had it posted, they would have different periods running.

MR ROBB:   Yes, your Honour.  That is an example I had not, with respect, thought of.  It is very specific and cogent example of the problem that I tried to summarise of their being the possibility not only of different dates of notice, that might not be entirely eradicable, but there is also the problem of the notice period starting at an unknown date to the recipient.

CRENNAN J:   If 29 is resorted to, those directors are on an even playing field as to the effluxion of 14 days.

MR ROBB:   Yes, your Honour.  So far as Meredith is concerned, I will not say much about that, if it please the Court, but it is important, in our respectful submission, to note what Justice Basten said at paragraph [54], which is at page 13.  I take your Honours to this because this is where Justice Basten is stating what the issue was:

The primary case put by the commissioner in seeking leave to appeal turned on the proper construction of s 222AOF(1) of the Assessment Act, which, the commissioner contended, provides that the obligation to give notice is satisfied merely by sending a notice by post to a director at an address . . . The primary case for the commissioner also depended on the non‑application of s 29 of the Acts Interpretation Act 1901 (Cth), being a provision which might provide an amelioration of the strict construction given to s 222AOF, by permitting the director to call evidence to establish non‑delivery of the notice.

Meredith, which was the first case to decide the point, decided the case, one would think, in an exceptional context, that is, the post has miscarried, and there was evidence of non‑receipt which was accepted as being non‑receipt in the sense of non‑delivery by the post. What the Court of Appeal was there dealing with is the question of whether section 29 goes so far as to not simply enable proof that delivery happened on a different date than it is presumed, but that it did not happen at all and, in that context, whether section 222AOF was saying there was at least a contrary intention to the extent that if there was no delivery, posting was enough.

All we would say about that is we put a submission that Meredith was distinguishable, the Court of Appeal held against us, it was not distinguishable, and there is no issue on that before your Honours today, and the reason that was simply held is that when one looked at the ultimate statement of principle by the majority, their statement of how section 222AOF should be interpreted was stated in a way that would apply not only in cases of non‑delivery, but also in cases of delivery. 

All we say about that is that specifically the Court of Appeal in this case left the actual issue in Meredith open.  They have only to decide the

point where the recipient of the notice gets it and the difficult questions that may still exist, bar the fact that the Division has been repealed but at least may exist in some other context, of non‑delivery and how section 29 works in that case is open and not decided and, indeed, Meredith may be right in the very point that it decided on the facts of that case. 

Your Honours, that brings us to the issues that are said to make this case a matter of general public importance, even through from 1 July 2010 the statutory provisions that I have been addressing were replaced by provisions which effectively enacted the Meredith solution as a generality, that is, in the case of posting to the ASIC address, it is now express that the giving takes effect at the date of posting.  We have two propositions which I will put to your Honours shortly.  The first is this.  At relevant times section 222AOE, as I have taken your Honour to, had an express requirement that the notice state that the penalty would be remitted if one of the four steps was taken within 14 days of the notice being given. 

In Mrs Soong’s case, that is what it said.  It conformed precisely with the required wording of the statute.  The evidence now is that, for reasons which are unexplained, the Commissioner, after Meredith, changed the wording on the notices to say 14 days after the date on this notice.  Of course, what the Court of Appeal decided in Meredith is that section 222AOE was satisfied by a notice posted under AOF on the date of posting, not the date of the notice.  It may be that the Commissioner would like to think that the two dates are the same, that is, in every single instance if the notice bears a certain date it is posted on that date, but at least as a matter of fact and law, they are conceptually different dates.

FRENCH CJ:   You will need to come to a finish now, Mr Robb.

MR ROBB:   Yes.  The second point is this, your Honours.  It is not at all clear what the evidence about the potential outstanding tax really means.  We would respectfully submit, and I put this very shortly, it can only be an ambit.  Nothing is said about why, in relation to these debts that arose between December 2007 and July 2010, they are still outstanding and what has done about then, whether they are recoverable, whether proceedings have started, whether any defences have been raised and, in particular, whether this defence has been made.  Thank you.

FRENCH CJ:   Yes, thank you, Mr Rob.  Yes, Mr Solicitor.

MR GAGELER: Your Honours, our learned friend’s explanation of the statutory scheme treats a notice as if it were merely an encouragement to compliance; it is not. Section 222AOB(3) places the director under a continuing obligation. Section 222AOC imposes an existing liability. The point of the notice is to provide a last chance for compliance with that existing obligation so as to have an opportunity for remission of the existing liability under section 222AOG. As to the question of which construction produces the greater certainty or the greater fairness, it must be recalled that section 29 of the Acts Interpretation Act is concerned with the date of delivery and, in some cases, the date of deemed delivery if actual delivery is not proved.  It is a long way from a certain date. 

The construction of the notice provision that we contend for produces a certain notice of a quite clear kind.  If your Honours turn to page 80 of the application book, you see the standard form of notice, which in the standard practice of the ATO, as set out in the affidavit, is, as one might expect, posted on the day that it is issued and it is quite clear, line 10, in saying clearly to the recipient of the notice, that the notice is to take effect from the date of the notice, they are the bolded words.  So if you take the two directors of the same company who are issued notices on the same day, whenever they might check their post box and however far they may live away from the ATO office from where the notice is published, they will both know that they both have to comply to avoid civil action by exactly the same day.  That is the greater fairness and the greater certainty.

My learned friend then goes to section 222AOF and says, well, just look at the words, as a matter of construction, the words say nothing about the date of effect of service.  The words do say everything about the content to be given to the word “give”.  If you leave the document at the address, you are giving.  That is the event that fixes the giving.  If you send it by post to that address, it is the sending that fixes the giving.  The section says everything that needs to be said about the event and about the placement of that event in time.

FRENCH CJ:   Unless you simply read it as stating mechanism by which you give.

MR GAGELER:   That is right, and once you have invoked that mechanism, it is given, and that is the end of it.

FRENCH CJ:   Well, a mechanism by which you give does not deem the mechanism to be the giving.

MR GAGELER: Well, there is not other way to read “leaving”, your Honour, and reading “leaving” consistently with “sending”, it is the act of the Commissioner in leaving or in sending that constitutes the giving. Finally, your Honours, in explaining the note our learned friend passed over, I think that is his language, passed over, section 28A, but of course section 28A can have no application in its terms. It is incapable of having any application to section 222AOF. Section 222AOF, when dealing with ASIC records and the place of residence shown by the ASIC records, is

clearly complete on its face and it is complete on its face, in our respectful submission, in respect of sending as well.  You do not go to 28A, there is no reason to go to 28A, nor is there any reason to go to 29.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor. 

The decision of the Court of Appeal in respect of which this application for special leave is brought involves the resolution of a contested question of statutory construction.  The relevant provision has been amended, but the Commissioner points to significant penalties that will go unrecovered in the event that the decision of the Court of Appeal stands.  Notwithstanding that concern, we are not satisfied that the decision of the Court of Appeal is attended by sufficient doubt to warrant the grant of special leave or that the decision raises any question of a general principle which would warrant such a grant.

Special leave will be refused with costs.

The Court will now adjourn to reconstitute.

AT 11.25 AM THE MATTER WAS CONCLUDED