General Benefits Pty Ltd & Tomblin v Australian Securities and Investments Commission No. Scciv-01-471

GENERAL BENEFITS PTY LTD & TOMBLIN v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
[2001] SASC 137
Magistrates Court (Civil)
DOYLE CJ

This is an appeal against a decision by the Magistrates Court.
The outcome of the appeal turns mainly on the validity or effectiveness of certain notices given by Australian Securities and Investments Commission (“ASIC”) to a company, in exercise of powers conferred by the Australian Securities Commission Act 1989 (Cth) (“the ASC Law”).
Background
General Benefits Pty Ltd (“GB”) is a company registered pursuant to the Corporations Law. Mr Tomblin is a Director of GB.
The ASC Law gives to ASIC certain powers to require the production of “books” as defined by the ASC Law. The definition is a wide one, and encompasses a range of documents. These powers may be exercised only for purposes specified by s 28 of the ASC Law. There is no dispute that circumstances enlivening the power existed. Section 30 of the ASC Law provides as follows:
“30(1) The Commission may give to:
(a)a body corporate that is not an exempt public authority; or
(b)an eligible person in relation to such a body corporate;
a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to affairs of the body.”
Section 33 of the ASC Law provides as follows:
“33 The Commission may give to a person a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books that are in the first-mentioned person’s possession and relate to:
(a)affairs of a body corporate; or
(ab)affairs of a registered scheme; or
(b)a matter referred to in any of paragraphs 31(1)(g) to (m), inclusive, and 32(1)(j) to (p), inclusive.
(c)… ”
Sections 31 and 32, which do not arise in the present case, provide respectively for a power to require the production of books about securities and books about futures contracts.
By s 63(1) of the ASC Law, it is an offence to fail to comply with a requirement made under s 30 or s 33 “without reasonable excuse”. By s 64(1) of the ASC Law it is an offence, “in purported compliance with a requirement” made under s 30 or s 33, to make a statement “that is false or misleading in a material particular”.
As I understand it, it is not in dispute that ASIC was investigating the affairs of E C Consolidated Capital Limited (“ECCC”), and in particular was investigating a suspected contravention by ECCC of various provisions of the Corporations Law. Accordingly it is not disputed that circumstances existed under which ASIC was entitled to exercise the powers conferred by s 30 and by s 33 of the ASC Law.
At a time relevant to the investigation being conducted by ASIC, Mr Tomblin caused GB to deposit a substantial amount of money with ECCC on behalf of various clients. Again, as I understand it, it is not disputed that the deposit of those moneys was relevant to the investigation being conducted by ASIC.
On 15 April 1997 Mr Dent, a delegate of ASIC, executed a notice addressed to GB. Omitting the heading and the sections of the Corporations Law referred to in the notice, the notice was as follows:
“To: General Benefits Pty Ltd
193 West Terrace
ADELAIDE 5000
In relation to an investigation into the affairs of EC Consolidated Capital Ltd (“ECCC”) ACN 055 108 739 in the period from 1 January 1994 to the date of this notice and, in particular, in relation to suspected contraventions of Sections …. of the Corporations Law.
you are hereby notified that under section 30 of the ASC Law, you are required to produce to Stuart Clifford Dent
on 18 April 1997
at 1.00pm
at the Office of the Australian Securities Commission, Document Control Unit, Level 17, 485 Latrobe Street, Melbourne VIC 3000,
the following books relating to a subscription for preference shares in E C Consolidated Capital Limited (“ECCC”) in December 1996:
1.All documents supplied to General Benefits Pty Ltd by ECCC or any other party, such as accounts of ECCC, offer documents or information memorandum; and
2.Copies of any documentation such as subscription agreements and share certificates.
(signed) Stuart C Dent 15 April 1997 Date”
I will refer to this notice as “the first notice”.
The first notice was posted to GB with a covering letter marked for the attention of Mr Tomblin. On two occasions this letter referred to the notice as a “notice issued under s 33 of the ASC Law”. The letter did not at any stage refer to s 30. As well, on 15 April Mr Dent sent a facsimile to Mr Tomblin with a copy of the notice, again referring to it as “a section 33 notice”.
On 17 April 1997 GB sent a letter to ASIC. The letter refers to the notice of 15 April 1997, referring to it (correctly) as a section 30 notice. The letter states that GB had not subscribed for any shares in ECCC, and that GB had not been supplied with any of the documents referred to in the notice.
On 22 April 1997 Mr Dent as delegate of ASIC signed a further notice. The notice, again omitting the heading and section numbers, is as follows:
“To: General Benefits Pty Ltd
193 West Terrace
ADELAIDE 5000
In relation to an investigation into the affairs of EC Consolidated Capital Ltd (“ECCC”) ACN 055 108 739 in the period from 1 January 1994 to the date of this notice and, in particular, in relation to suspected contraventions of Sections … of the Corporations Law.
you are hereby notified that under section 33 of the ASC Law, you are required to produce to Stuart Clifford Dent
on Wednesday 23 April 1997
at 1.00pm
at the Office of the Australian Securities Commission, Document Control Unit, Level 17, 485 Latrobe Street, Melbourne VIC 3000,
the following books relating to any funds lodged with E C Consolidated Capital Limited (“ECCC”) in December 1996:
1.All documents supplied to General Benefits Pty Ltd by ECCC or any other party in relation to the funds lodged;
2.Copies of any documentation such as trust deeds, correspondence, schedules as to the beneficial owners of the funds;
3.Accounting records relating to the funds lodged; and
4.Details of any commissions received by General Benefits Pty Ltd or an associated person or paid to any third parties.
(signed) Stuart C Dent 22 April 1997 Date”
I will refer to this notice as “the second notice”.
The second notice was posted to GB on 22 April 1997, with a covering letter signed by Mr Dent. The letter correctly refers to the notice, on two occasions, as a notice issued under section 33 of the ASC Law. But in a facsimile sent to Mr Tomblin on 22 April, and in a proof of service completed on 22 April by Mr Dent, the second notice is referred to as a notice pursuant to section 30 of the ASC Law. The same mistake is repeated in a facsimile and letter sent by Mr Dent to Mr Tomblin on 6 May 1997.
No response satisfactory to ASIC was made to the second notice.
A summons was issued by ASIC charging GB and Mr Tomblin with certain offences. I will refer only to the counts relevant to the appeal.
Count 1 charged GB and Mr Tomblin with an offence of failing to comply with a requirement made under s 30 of the ASC Law by the first notice. The charge against Mr Tomblin was brought pursuant to s 5 of the Crimes Act 1914 (Cth) on the basis that he was a person knowingly concerned in the commission of the offence.
Count 2 charged GB and Mr Tomblin with failing to comply with a requirement made under s 33 of the ASC Law by the second notice.
Counts 4 and 5 charged Mr Tomblin with making a statement that was false in a material particular, contrary to s 64(1) of the ASC Law. The statements relied upon were the two statements made in his letter of 17 April 1997.
The Magistrate convicted GB and Mr Tomblin on counts 1 and 2, and Mr Tomblin on counts 4 and 5.
Grounds of Appeal
The first ground of appeal is that the first notice and the second notice are not valid notices pursuant to s 30 and s 33 respectively of the ASC Law.
The second ground is that the Magistrate erred in admitting the notices into evidence. The submission is that the Magistrate should have exercised the discretion identified in Bunning v Cross (1978) 141 CLR 54, or a discretion based on fairness, to exclude from evidence the first notice and the second notice.
The first ground
Section 30 of the ASC Law enables ASIC to require the production of books relating to the affairs of the body to which the notice is given. The first notice was given to GB.
The Australian Securities Commission Regulations (“the ASC Regulations”) prescribe a form to be followed for a notice to be given under s 30 or s 33. The prescribed Form 2 is as follows:
“To: ¹
In relation to ²
you are hereby notified that, under section 30³/subsection 31(1)³/ subsection 32(1)³/section 33³ of the ASC Law, you are required to produce to ⁴
at ⁵
on ⁶
at ⁷
the following books ⁸
dated ⁶
Signature of person requiring the production of books:
…..
¹insert full name and address of the person to whom the notice is to be given
²insert the nature of the matter to which the request for production relates
³strike out or delete if inapplicable
⁴insert the full name of the person to whom the books are to be produced
⁵insert time of day
⁶insert date
⁷insert full particulars of the address of the place at which the books are to be produced
⁸insert description(s) of the books that are to be produced.”
The first notice and the second notice are in the required form.
Mr Boucaut, counsel for the appellants, makes the point that the first notice is addressed to GB and given to GB, and apparently requires the production of books, but that the first notice requires the production of books relating to the affairs of the ECCC. He submits that on its face the notice refers to the production of books relating to the affairs of ECCC. He points to the first four lines of the notice, inserted in response to note 2 on the prescribed form. He submits that the books in question relate to the affairs of ECCC, not to the affairs of GB.
I do not accept that submission. I consider that the first part of the notice is intended to and does identify matters which, pursuant to s 28 of the ASC Law, enliven the powers conferred by s 30 and by s 33. In other words, the first notice begins by identifying an investigation into the affairs of ECCC, and in particular suspected contraventions of certain sections of the Corporations Law, as the matters which enliven the powers under s 30 and s 33.
In this respect, the first notice appears to have been prepared in a manner that would satisfy requirements identified by Davies J in MacDonald v Australian Securities Commission (1993) 116 ALR 514. There His Honour held that a notice under s 30 must give a sufficient description of “the nature of the matter to which the investigation relates”, as required by note two to the prescribed form in the Regulations. He held that this requirement was not satisfied by referring simply to “an investigation of the affairs of” a particular company. Something more specific must be provided. His Honour said (at 517):
“Provisions such as s 30 are interpreted as requiring the giver of the notice to identify in the notice, expressly or by necessary inference, the information or documents which are sought and the matter or matters within the concern of the giver of the notice to which the information and the documents sought relate. Such identification should enable the recipient of the notice to perceive that the giver of the notice is entitled to require the production of the information or documents demanded therein.”
His Honour applied the following general principle identified by Gibbs ACJ in FCT v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 525, in relation to a provision of the Income Tax Assessment Act:
“To be valid a notice to produce documents under s 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However, the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require.”
In my opinion the first notice, in the introductory paragraph, is to be read as identifying the circumstance referred to in s 28 of the ASC Law which enlivened the power under s 30. Although not challenged on this basis, the first notice and the second notice identify with sufficient clarity the nature of the matter to which the investigation by ASIC relates.
However, having said that, the question remains whether the first notice requires the production of books relating to the affairs of GB. Mr Boucaut submits that because the first notice requires the production of books relating to the affairs of ECCC, it is not a notice requiring the production of books relating to the affairs of GB, as permitted by s 30. He submits that it is a notice to GB requiring the production of books relating to the affairs of ECCC, and so is a notice of the type provided for by s 33. Accordingly, it is not a valid s 30 notice, but an ineffective attempt to give a s 33 notice.
To the extent necessary to support this submission, Mr Boucaut relies also on the fact that the letter and facsimile earlier referred to each refer to the notice as a notice under s 33.
In relation to the second notice a similar submission is advanced. No criticism is made of the notice itself, because it is a notice addressed to GB and on its face Mr Boucaut accepts that it requires the production of books relating to the affairs of a body corporate, namely ECCC. However, he relies on the error in the proof of service and in the facsimiles and letter referred to above, which refer to this notice as a notice under s 30.
I mention here that Mr Dent gave evidence before the Magistrate. The Magistrate accepted him as a truthful witness. The Magistrate found that Mr Dent intended to exercise the powers conferred by s 30 when he signed the first notice, and the powers conferred by s 33 when he signed the second notice. He accepted Mr Dent’s explanations for the various mistakes that Mr Dent made. I need not detail those explanations here. It suffices to say that they reflect a significant lack of attention to detail.
There is no need to attempt a general statement of what is required for a valid and effective notice under each of the sections in questions.
For present purposes I proceed on the basis that to be effective a notice given under s 30 or s 33 must identify the source of the power invoked, and (as is obvious), on the basis that the demand made by the notice must be supported by the power invoked. This is consistent with what Gibbs ACJ said. For the notice to show that ASIC is entitled to require the production of the relevant document, it must identify the source of power pursuant to which the requirement is made.
On their face, the first notice and the second notice unambiguously identify s 30 and s 33 respectively as the provisions pursuant to which the notices are given. That being so, and subject to the effect of the letter and facsimiles referred to, the real question is whether the requirement made in each notice is a requirement supported by the relevant section.
Thus, in relation to the first notice, the question is whether the notice requires the production of books relating to the affairs of GB. Of course, as I have already observed, the first notice begins by identifying the fact that the power conferred by s 30 is being exercised in relation to the affairs of ECCC, and in particular in relation to suspected contraventions of certain sections of the Corporations Law, presumably arising in the course of the affairs of ECCC.
But the production of books “relating to affairs” of GB might be required for the purposes of such an investigation. The issue in the present case is whether the notice requires production of books relating to the affairs of GB. Books that relate to the affairs of GB might also relate to the affairs of ECCC. The fact that the books relate to the affairs of ECCC, does not mean that they are not also books relating to the affairs of GB.
The first notice states that GB is required to produce books relating to a subscription for preference shares in ECCC. The notice should have stated, but does not state, that the relevant subscription is a subscription by GB. This deficiency in the notice is the main basis of the submission by Mr Boucaut that the books required to be produced do not relate to the affairs of GB. While the criticism of the notice is fairly made, I consider that it is sufficiently clear that the notice is to be read as referring to books relating to a subscription by GB, either in its own right or on behalf of some other person, for preference shares in ECCC. That implication flows from the fact that the notice is addressed to GB, but more significantly from the fact that item one requires the production of documents supplied to GB by ECCC or some other party. In my opinion it is sufficiently plain from all this that the reference must be to a subscription by GB for preference shares: cf Ryneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565 at 571.
If the first notice is to be so read, it calls for the production of documents supplied by ECCC or some other party to GB, relating to a subscription by GB for preference shares in ECCC. I consider that such documents are capable of being books (as defined) of GB relating to the affairs of GB.
As I have already said, “books” are widely defined by s 5(1) of the ASC Law. Mr Boucaut did not submit that the documents described in the first notice were not capable of falling within that definition.
By s 30 and s 33 of the ASC Law permit ASIC to require the production of books that relate to the affairs of a body corporate. The word “affairs” in that context has the same meaning as in s 260 of the Corporations Law: s 5(1) of the ASC Law. That meaning is to be found in s 53 of the Corporations Law. The “affairs of a body corporate” are there defined to include a wide range of matters: Bond Corporation Holdings v Sulan (1990) 2 ACSR 97 at 100; (1990) 2 ACSR 435 at 441. Mr Boucaut did not submit that a subscription by GB for preference shares in ECCC was not capable of being an aspect of the affairs of GB or an aspect of the affairs of ECCC. His submission, as I have already noted, was that the first notice did not specify that the books required to be produced were books relating to the affairs of GB. I have already explained why I do not accept that submission.
Despite the deficiency in the notice already referred to, and the fact that generally it is poorly drawn, in my opinion it describes books which are capable of falling within s 30 of the ASC Law. It is sufficient for the validity of the notice that that is so.
I now turn to a point not the subject of specific submissions before me, but closely related to the point raised on appeal. It is not necessary for the notice on its face to describe the books called for, and to identify them, with such detail and precision that the reader is satisfied from the face of the notice that the books called for in fact have the required characteristic. Neither notice does this. It is sufficient for the validity of the notice that, as described, the books are capable of meeting the statutory requirement.
In the event that GB is in possession of documents which appear to meet the description in the notice, but which GB contends are not books as defined, or do not relate to its affairs, the appropriate response for GB is to refuse to produce the books on that basis, and either to bring the basis for its refusal to the notice of ASIC or to rely upon the reason for its refusal as a reasonable excuse for failing to produce the books.

The decision of the High Court in FCT v Australia and New Zealand Banking Group Ltd supports this conclusion. Earlier in these reasons I set out a short passage from the reasons of Gibbs ACJ in that case. That passage could be read as requiring a notice like the present notices to show on its face how the books called for relate to the affairs of GB. But it is clear that this is not what Gibbs ACJ intended. He upheld the validity of notices which required the production of documents, which documents were simply said to be required in connection with the income or assessment of named persons. The notices did not provide facts or make assertions concerning the existence of that connection. They simply called for the production of documents which answered the relevant description: FCT at 528.
The point emerges more clearly from the reasons of Mason J, which whom, (on this point) Jacobs J (at 541) and Murphy J (at 547) agreed. Mason J said (at 537-538):
“What par (1)(b) has in mind is that a notice may be given requiring the recipient to produce ‘all books, documents and other papers’ in his custody or control ‘relating thereto’, that is, to the income or assessment of the person whose name is stated in the notice. It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty.
The existence of this hazard is not a sufficient basis for the conclusion that the section requires the Commissioner to give a notice in such terms as would enable the recipient on reading it and on examining the documents in his custody or control to determine whether they fall within the ambit of the Commissioner’s powers. To so hold would be to impose an impossible burden on the Commissioner. In many, if not most, cases he will be unaware of the contents of the documents of which he seeks production. And there will be cases in which a recipient who is not the taxpayer will lack the degree of knowledge of the taxpayer’s affairs and of the Commissioner’s approach to his assessment that is necessary to determine whether the documents relate to the taxpayer’s income or assessment. Not only would the suggested requirement frustrate the object of conferring the power, it would be inconsistent with the section as I have explained it.
…
As the Commissioner’s coercive power to require production is limited, any notice given in exercise of the power must in terms conform to the statutory limitations if it is to be valid. It will in my view conform to those limitations only if it clearly confines the documents to be produced to the class of which the Commissioner is authorized to require production, though it may go on to include particular documents on the footing that they fall within that class. If not so limited, the notice fails on its face to express the limitation which the section places on the Commissioner’s authority. Because the exercise of the power casts onerous obligations on the recipient of a notice, and because the recipient (not being the taxpayer) is only justified, vis-à-vis the taxpayer, in producing the taxpayer’s documents without his consent in response to a valid demand, it is for the Commissioner so to formulate his notice that this limitation on his authority is drawn to the attention of the recipient.”
In my opinion it follows from what Mason J said, and from the form of the notices that he found to be valid, that it is sufficient that a notice issued under a provision like s 30 or s 33 identifies the documents called for by reference to the characteristic that the section requires they have. It is not necessary for the notice to show how that characteristic is established in any particular case. That is something for the recipient of the notice to consider.
What I have said is consistent with the decision of Spender J in Australian Securities Commission v Zarro (1991) 105 ALR 227 at 237, where he said:
“In the view I take of the matter, if the documents sought do objectively satisfy the statutory test, namely, that they relate to the affairs of a body corporate, the recipient of a notice is obliged to comply with it and has to take the consequences of a decision not to comply.”
A little earlier he said (at 235):
“In my opinion, it would be an impossible imposition on the ASC if its enquiries were to be predicated on an obligation in every case to detail the basis of the asserted connection between the document sought and the body’s corporate the subject of investigation.”
To a like effect is the decision of Davies J in MacDonald v Australian Securities Commission (1993) 116 ALR 514 at 520 when he dealt with a similar point among other points taken in relation to the validity of a notice issued under s 30.
Accordingly my tentative conclusion is that the first notice is a valid notice under s 30, subject to the effect of the letter and of the facsimile.
I turn now to the effect of the letter and of the facsimile on the validity or effectiveness of the first notice. I was not referred to any cases in point, nor have I been able to find any. I agree that each of the documents referred to had the capacity to cause confusion. However, in my opinion, the notice is the critical document. There may be circumstances in which a document accompanying a notice under s 30 would cause one to regard the notice as something other than what it purported to be. However, here the first notice stated on its face that it is a notice under s 30. The letter and the facsimile might cause the reader some doubt, but in the end, in my opinion, the effectiveness and validity of the notice must be determined on the face of the notice. It might well be another question if the notice did not itself clearly identify the section under which it was issued.
There are two other points that I should mention. The first is that item 2 of the first notice may be beyond power. Mr Boucaut did not address submissions to this point. However, unless item 2 is read as referring to copies of the documents referred to in item 1, it is difficult to give it a meaning that it within the scope of s 30. The second point is that the validity of the notice does not turn upon the way in which GB or Mr Tomblin subjectively understood it. But, if that matter is relevant, I note that the response to the notice, a letter signed by Mr Tomblin, referred to the notice as a s 30 notice.
The submissions in relation to the second notice were to the same effect. Those submissions should not be accepted. On its face that notice was issued under s 33 of the ASC Law. There is no difficulty in reading the second notice as requiring the production of books relating to the affairs of a body corporate. The relevant body corporate for the purpose of the second notice is ECCC. In its concluding part the notice calls for the production of books relating to funds lodged with ECCC. The lodgment of funds with ECCC is an aspect of the affairs of ECCC, even if also an aspect of the affairs of GB.
In that respect the second notice is also undesirably vague. I take it to intend to refer to books relating to funds lodged by GB with ECCC. That is not stated in terms. This notice, in item 4, calls for “details of any commissions received by General Benefits Pty Ltd or an associated person or paid to any third parties”. That requirement is not, on its face, confined to documents, but would have to be so read if it is to be effective.
It is only the covering facsimile and the later letter and facsimile that are capable of causing confusion, and for reasons already given in relation to the first notice, in my opinion they do not render the notice invalid or ineffective.
I have referred already to the fact that the Magistrate heard evidence from Mr Dent as to his subjective intention when issuing the notices.
I consider that the source of power relied upon to support each notice, and the capacity of that power to support each notice, is to be determine objectively, by examining the contents of the notice in question.
However, I accept that the intention of Mr Dent may be relevant to the validity of the notice in a different sense. If it were shown, for example, that Mr Dent never intended to sign a notice under s 30 or s 33, and that his signature was obtained by some deception, I accept that that could invalidate the notice. Such evidence would invalidate the notice if it went so far as to establish that Mr Dent never intended to issue the notice bearing his signature. The cross-examination of Mr Dent before the Magistrate was intended to show that when he issued the first notice he was intending to issue a notice under s 33, and that when he issued the second notice he was intending to issue a notice under s 30. I am prepared to assume that a mistake like this is capable of invalidating a statutory notice. That is, if it were shown that the person who issued a notice under a given section, intended to issue a notice under a different section, it might be that there was never an intention to issue the notice in fact issued, and for that reason the notice would be ineffective. However, the difficulty that the submission confronts in the present case is that the Magistrate found that Mr Dent intended to issue the notice under the section which appeared on the face of each notice. While the series of mistakes made by Mr Dent in the letters and facsimiles referring to the first notice and to the second notice are capable of causing one to conclude that in each case he issued a notice bearing a reference to a section other than the section that he intended to invoke, the evidence is equally capable of leading to the conclusion that the mistakes were due to a recurring lack of attention to detail. Indeed, the repetition of the mistakes in one sense suggests that. It is hard to believe that when Mr Dent issued the first notice under s 30, he in fact intended to invoke s 33, and that when he issued the second notice under s 33, he in fact intended to invoke s 30. I think that the more likely conclusion is that Mr Dent intended to invoke the sections to which he referred in each notice, and that he carelessly dealt with the correspondence relating to the notices. That, in any event, is the conclusion that the Magistrate reached. It is a conclusion that was open to him, and is one that I am unable to say is wrong.
The second ground
The submission is that the erroneous and potentially confusing facsimiles and letter gave rise to a discretion to exclude those documents as evidence when tendered by the prosecution. The discretion relied upon is that identified by the High Court in Bunning v Cross (1978) 141 CLR 54. The discretion in question is generally understood as relating to evidence of facts or things ascertained or procured by means of unlawful or unfair acts: R v Ireland (1970) 126 CLR 321 at 355 Barwick CJ. The discretion rests upon considerations of public policy.
The notices in the present case do not constitute facts or things ascertained by means of unlawful or unfair acts. Nor, in my view, is there anything unlawful about the notices. A question of unfairness might arise, as a result of the circumstances under which the notices were given to GB. However, even if that were so, the unfairness does not affect the notices themselves as items of evidence. It seems to me that if it has any potential effect, it is on the response by GB. As I have already pointed out, there is no suggestion in this case that GB was in fact confused or prejudiced in any way by the letters or facsimiles. There was no evidence adduced by GB to suggest that it was in any way unfairly affected by the confusing information in the letters and facsimiles.
In my opinion the second ground must fail. No basis was made out upon which the Magistrate should have excluded from evidence either the notices or the letter in response to the notice, or should have included proof that there had been no satisfactory response.
One other matter was raised by a supplementary outline of submissions provided by counsel for the respondent. The point was taken that the notices could not be attacked by a “collateral challenge” in a criminal court. The point was not developed in oral submissions. The issue of the first notice and of the second notice is an administrative act, and in accordance with established authority the validity of such a notice is open to collateral review in criminal proceedings provided, as it is in this case, the issue arises as an element of the judicial controversy before the Court: see Ousley v The Queen (1998) 192 CLR 69 and Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 108; [1999] HCA 28 at [36].
Conclusions
For the reasons that I have given, I am satisfied that the notices in question were not invalid on the grounds suggested, that they were effective to the extent required to support the charges before the Magistrates Court, that the Magistrate rightly admitted the evidence before him in proof of guilt, and accordingly that the appeal should be dismissed.

[2001] SASC 137

2 May 2001