Guss v ATO
[2017] VSC 396
•26 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
S CI 2016 4593
| JOSEPH GUSS | Appellant |
| v | |
| EDDIE STORACE (AUSTRALIAN TAXATION OFFICE) | Respondent |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 June 2017 |
DATE OF JUDGMENT: | 26 June 2017 |
CASE MAY BE CITED AS: | Guss v ATO |
MEDIUM NEUTRAL CITATION: | [2017] VSC 396 |
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APPEAL – Leave to appeal from Magistrates’ Court of Victoria – Final Notice issued by the Commissioner of Taxation – Income Tax Assessment Act 1936, s 162 – Taxation Administration Act 1953, s 8C(1)(a), s 8ZL – Income Tax Regulations 1936, Regs 36, 37A and 40 – Acts Interpretation Act 1901 (Cth), s 29 – Criminal Procedure Act 2008 (Vic), s 272 – Interpretation of Legislation Act 1984 (Vic), s 49 – Evidence Act 2008 (Vic), s 160.
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APPEARANCES: | Solicitors | |
| For the Appellant | Mr J Guss appeared in person | |
| For the Respondent | Ms R Sharp of Counsel | Director of Public Prosecutions (Cth) |
HIS HONOUR:
Introduction
By Notice of Appeal dated 10 November 2016 Joseph Guss (the appellant) appeals the decision of Magistrate McLean in proceeding No. E11966467 of 20 October 2016. The appellant, in this appeal, relies upon his:
(a) Notice of Appeal dated 10 November 2016;
(b) two affidavits sworn 10 November 2016 and 13 February 2017 and their accompanying exhibits;
(c) written submissions dated 28 March 2017 and oral submissions made 26 June 2017.
The respondent relies upon:
(a) the affidavit of Eddie Storace affirmed 20 December 2016 and accompanying exhibits;
(b) written submissions dated 11 April 2017 and oral submissions made 26 June 2017.
Background
By Final Notice dated 5 March 2014 (Final Notice) issued by the Commissioner of Taxation (the Commissioner) under s 162 of the Income Tax Assessment Act 1936 (the ITAA), the appellant was required to give the Commissioner income tax returns in the approved form on or before 16 April 2014, for the years 1 July 2009 to 30 June 2010, 1 July 2010 to 30 June 2011, 1 July 2011 to 30 June 2012 and 1 July 2012 to 30 June 2013.
The Commissioner’s Final Notice was addressed to Joseph Guss, PO Box 454 Collins Street West Vic 8007.
Failure to provide the income tax returns required by the Final Notice is an offence under s 8C(1)(a) of the Taxation Administration Act 1953 (the TAA). That offence is in the nature of a criminal offence.
On behalf of the Commissioner, Mr Storace of the Australian Taxation Office (the respondent) issued four charges (one in respect of each required income tax return) as specified in the Charge Sheet and Summons dated 5 June 2014, averring pursuant to s 8ZL of the TAA that, inter alia, the Final Notice was duly served on the appellant by posting it on 5 March 2014 by pre-paid letter to the appellant’s address for service, namely PO Box 454 Collins Street West VIC 8007. The same Final Notice was also sent by pre-paid letter addressed to the appellant at 140 William Street, Melbourne 3000.
The appellant failed to furnish income tax returns referred to in the Final Notice within the time prescribed.
Accordingly, as a consequence the appellant faced four charges of failure to comply with a requirement of the Commissioner to duly furnish an approved form pursuant to s 162 of the ITAA contrary to s 8C(1)(a) of the TAA.
On 14 July 2016 the said charges against the appellant were heard in the Magistrates’ Court at Melbourne, and after a period during which the learned Magistrate’s decision was reserved, on 20 October 2016, her Honour found the four charges referred to against the appellant proved.
The effect of the Commissioner’s averments, to which I have referred, in the proceeding before the learned Magistrate, pursuant to s 8ZL of the TAA[1] is that the facts in the Charge Sheet and Summons so averred were established prima facie, although susceptible to rebuttal by evidence to the contrary.
[1]T112-113.
At the hearing below the appellant submitted to the learned Magistrate that the relevant Final Notice was neither delivered to nor received by him. The appellant’s evidence also included that his address for communications and service by the Australian Taxation Office (ATO) had for many years been to his tax agents, Rundles, at 500 Collins Street, Melbourne.[2]
[2]T57.13-14; T57.21-22.
Before the learned Magistrate the appellant submitted that the ATO had not established that it had posted the subject Final Notice. The appellant submits that posting the Final Notice as letters could only have been achieved by placing those articles properly addressed with postage paid envelopes in the authorised post.[3]
[3]Appellant’s Submissions, 28 March 2017, [11] and page 7 and [12]-[18].
The learned Magistrate clarified that the core issue was that: “the prosecuting authority cannot prove to the standard required as a matter of law that the document was indeed served on you, the tax payer, as required by the Act and the regulations”.[4]
[4]T93.13-16.
In the learned Magistrate’s Judgment on 20 October 2016, her Honour concluded that: [5]
Mr Guss gave evidence that he did not receive at either address the final notice to lodge the outstanding returns. I do not accept that evidence but that does not end the matter. It is averred that the final notice was served. Accordingly I have before me prima facie evidence of that fact. There is no evidence before me which in my view is sufficient to cast any doubt let alone rebut the prima facie evidence that the relevant document was served. The documents were sent by mail through Australia Post receipt in a manner consistent and in accordance with the daily mail management processes adopted at the ATO Geelong Office. The mail addressed to Mr Guss was not returned undelivered.
[5]T115.2-15.
Her Honour, in her Judgment, also cited s 29 of the Acts Interpretation Act 1901 (Cth), (AIA) which provides:
Where an act authorises 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 the service shall be deemed to be affected by properly addressing, prepaying and posting the document as a letter. Unless the contrary is proved to have been affected at the time at which the letter would be delivered in the ordinary course of post.
At the conclusion of the hearing on 20 October 2016, the appellant stated to the learned Magistrate that he intended to appeal her ruling on a question of law and sought to defer finalisation of the matter before her Honour pending the outcome of his appeal. The learned Magistrate acceded to that course. The learned Magistrate adjourned the matter sine die pending the determination of the appeal to this Court.[6]
[6]T117.14-22.
The appellant filed four returns on 28 May 2015.[7] No tax was payable in respect of any of those returns.[8]
[7]T34.11.
[8]T58.16-17.
Grounds of Appeal
The grounds of appeal as set out in the appellant’s Notice of Appeal dated 10 November 2016 are as follows:
1. That the evidence on which the learned Magistrate relied for making her decision did not support the findings that the charges were proven.
2. The learned Magistrate failed to apply and follow the authorities cited to her by the appellant and on which he relied to the effect that the charges were not made out in that the notices referred to in the charges and service of which it was necessary for the informant to prove service of according to law as a condition precedent to the making out of the said charges, were in fact served according to law as required by the provisions of s 162 of the ITAA.
3. The decision was against the weight of the evidence led by the respondent which did not and could not prove that the said charges were made out according to law.
4. In fact the said notices not having been proved to be served according to law the said charges should have been dismissed.
Orders sought
By his Notice of Appeal the appellant seeks the following orders:
(a) That the decision of Magistrate McLean that the charges were proven be set aside and the charges dismissed.
(b) Such other orders as the Court deems just.
Submissions
The Appellant’s Submissions
Ground 1 and 3 – No Proof of Service by Post
Essentially, the appellant asserts that the prosecution evidence before the learned Magistrate on the issue of whether the Notices were served on him, the establishment of which service is a precondition to liability pursuant to s 8C(1)(a) of the TAA for failing to comply with a s 162 Notice, was not sufficient to establish service by post.
At paragraph [7] of the appellant’s written submissions, the appellant sets out what he submits was the evidence relied on by the prosecution from Ms Bennett, Mr Briggs and Ms Llewellyn.
The appellant’s submissions include his summary of the evidence given by Mr Briggs that after the relevant s 162 Notices were given to him by Ms Bennett for electronic approval, and after such approval, Mr Briggs put the notices in two window-faced envelopes but did not personally post them, placing them in a mail tray. The appellant emphasises that Mr Briggs has no personal knowledge of what happened to those letters after they were placed in the mail tray.
In relation to Ms Llewellyn’s evidence regarding the handling of outgoing mail at the Geelong ATO office, the appellant submits that, in summary, her evidence was that:
(a) her duties relating to the mail entailed collecting outgoing mail from mail trays at three locations in the building and taking them to the mail room where she recorded the quantities of large and small envelopes. In this role Ms Llewellyn worked for Decipha, a contractor to the ATO;
(b) the outgoing mail was then collected by an Australia Post driver but no individual record was made of the name and address of each addressee to which outgoing mail is sent, unless an express or registered post was relevant. No mail was sent to the appellant by express or registered post;
(c) no postage stamps were put on outgoing letters, instead outgoing mail envelopes are imprinted with the words “Postage paid Australia”.
Substantively, the appellant argues that the evidence of the handling of outgoing mail in accordance with the procedures in place at the Geelong ATO offices did not amount to “posting” the mail, such that it was, proved that the notices were “served by post”.
The appellant submits that the highest that the prosecution evidence reached is that Mr Briggs put the relevant envelopes containing the s 162 Notices in the outgoing mail trays on his floor. The appellant further submitted that the prosecution evidence at trial did not establish whether there had been “actual posting”. Accordingly, the appellant submits that there is no evidence that the subject envelopes were collected by an Australia Post driver and therefore there is no proof of “actual postage”.
The appellant also submits there were gaps in the evidence at trial. He submits that the evidence did not establish that the envelopes containing the notices were in fact placed in the outgoing mail tray on 5 March 2014. He submits that there is no evidence that, if they were placed in the outgoing mail tray, they were ever collected on that day. The appellant submits that at most the evidence at trial was that the relevant envelopes were left in the mail tray, but there was no evidence as to what happened to the envelopes subsequently.
The appellant also submits that it is a requisite element of proof under s 29(1) of the AIA that “the ordinary course of post be established”. The appellant submits that has not been established in this case.
Ground 2 - The Authorities
The appellant submits that in this case there is no evidence that the posting of the s 162 Notices was in accordance with the authorities to which he referred the learned Magistrate, and to which the appellant refers in his written and oral submissions on this appeal. In particular, he refers to several articulations of what he submits are the requirements for establishing service by post.
The first is the statement of Brereton J in Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd[9] setting out four matters which the appellant says are required to be proved to establish service by post:
[9][2006] NSWSC 1216 at [12].
(a) Proof that the envelope bore the correct name and address;
(b) Proof that the envelope contained the relevant document to be served;
(c) Proof that the envelope bore the correct cost of postage; and
(d) Proof that the envelope was placed in the post.
The appellant also relies upon the statement of Debelle J in Dwyer v Cannon Australia Pty Ltd[10] where four elements were also identified as necessary to establish service by post as follows:
In order to establish service by post upon a company, it is therefore necessary to prove that the letter was
·properly addressed,
·pre-paid,
·posted as a letter, and
·sent to the registered office of the company.
[10][2007] SASC 100 at [6].
The appellant further relies upon passages in Brown v Bluestone Property Services Pty Ltd in the judgment of Barrett J:[11]
In order to prove service by post, it is necessary that the evidence of one or more witnesses establish a number of core and indispensable matters: that the document said to have been served by posting of it to a given address was placed inside an envelope, that the envelope had that address written or typed on its face, that a postage stamp or franking of the necessary amount was affixed to the envelope and that the envelope so addressed and stamped or franked was physically deposited in the post either at a post office or by being dropped into a post box for the reception of mail articles.
The plaintiffs have not proved these things. The evidence says nothing about an envelope or the placing of anything into an envelope (in particular, the letter dated 26 February 2010 and the documents listed in it). The evidence says nothing about the writing or typing of a name and address on the face of any envelope or about any stamp or franking. No one deposes to having handed over a stamped and addressed envelope at a post office or deposited it into a post box for the reception of mail articles.
[11][2010] NSWSC 869 at [13]-[14].
The appellant relies upon the case of Pearlburst Pty Ltd v Summers Resort Group Pty Ltd[12] in which Barrett J, referring to the cases of Northumbrian Ice Cream and Dwyer, sets out the requirements for proof of service. The evidence before the court in that case was that:
In the present case, there is no direct evidence about what appeared on the face of the envelope; there is only evidence of what appeared on the letter of 15 August 2007. Indeed, there is no direct evidence of the existence of any envelope, in that, while it is said in Mr Bailey’s affidavit that the letter was sent by prepaid post there is no explicit statement that the letter (and the annexure “B” documents said to have been enclosed with it) were put into any envelope. There is no evidence of the amount or value of any stamp or franking affixed to any such envelope. And there is no direct evidence that anyone lodged any stamped or franked envelope (and contents) at any post office or in any post box.
[12][2007] NSWSC 1126 at [24].
The appellant submits that the above statements of Brereton, Barrett and Debelle JJ are consistent with statements made by Daubney J in Grant Thornton (Qld) Pty Ltd v Green Global Technology.[13] There his Honour referred to Pearlburst, Northumbrian Ice Cream and Dwyer and noted that there was no evidence before him of:
… any of the processes within the applicant’s solicitor’s office which could give me any proper basis for concluding that posting of the documents in question in an envelope addressed to the registered office of the respondent company actually occurred.
[13][2009] QSC 262.
The appellant also relies on passages from Young v Paddle Bros Pty Ltd[14] and Taylor v Armour & Co Pty Ltd[15] and also alternative statements by way of judicial pronouncement in the cases of Rodger v Wojcik[16] and O’Connor v Bradshaw[17] as to whether, on appeal, the court was able to ascertain that it was open on the evidence to reach the conclusions which are appealed.
[14][1956] VLR 38.
[15][1962] VR 346.
[16][2014] VSC 308.
[17][2015] VSCA 39.
The appellant’s submissions at trial regarding the authorities were in substance that posting of a document as a letter could only mean placing that article in an authorised letterbox for collection and then delivery by Australia Post employees or agents.
The learned Magistrate however found that this submission was “far too narrow a meaning particularly in the context of large organisations with considerable mail volumes”. The learned Magistrate also further found that, on the basis of the evidence given at the trial before her, and the effect of the averments in the charges, service by post for the Final Notice had been effected.
In his oral submissions before me the appellant also in substance contended that the learned Magistrate’s considerations took into account an irrelevant factor concerning the mail handling issues and practicalities affecting large organisations like the ATO.
The appellant submits that the finding that Mr Briggs placed the envelope containing the notices in the outgoing mail tray, and the finding by the Magistrate rejecting the appellant’s submissions regarding the authorities, were contrary to the evidence and to principle.
The appellant submits that accordingly, service of the s 162 Notices has not been proved to be effected in accordance with law, and therefore the decision below and the charges should be set aside.
The appellant also makes a number of more tangential arguments. He submits that references to written submissions and statements by the learned Magistrate during the hearing, were inappropriate.
The appellant’s arguments, I observed at trial, are substantively the same as those argued on appeal before me.
It is to be noted that the appellant submits that despite the learned Magistrate’s observations as to the transcript to which he refers in his written submissions, the learned Magistrate made the findings she did on 20 October 2016.[18] In essence, in relation to these matters, the respondent submits that the learned Magistrate cannot relevantly fall into error by simply articulating the arguments of the parties.
[18]T113.25-T114.25, T115.26-T116.7.
The appellant also submits that s 49 of the Interpretation of Legislation Act 1984 (Vic) applies in this instance, and not s 29 of the AIA. The appellant in addition submits that s 160 of the Evidence Act 2008 (Vic) applies because the proceeding is in a Victorian Court.
Furthermore, the appellant emphasises in his submissions that there was no evidence before the learned Magistrate to establish that he had ever advised or notified a “preferred address for service” for the purposes of the Income Tax Regulations 1936, in particular Regulation 40.
The appellant submits that his address for service by the ATO was, he believed, his tax agents, Rundles at 500 Collins Street, Melbourne 3000, although the appellant conceded that the tax office would know of his address at PO Box 454 Collins Street West 8007 and his business address at 140 William Street Melbourne 3000.[19]
[19]T57.20-31, T58.1-7.
Finally, the appellant submitted that the averments of the respondent, insofar as they may have amounted to prima facie evidence under s 8ZL of the TAA, have been rebutted by his evidence that he did not receive the subject notices and further, for the reasons he argues, there was no proper evidence upon which the notices posted to him could be substantiated as posted, as required.
The Respondent’s Submissions
The respondent submits that the appellant’s four grounds in the Notice of Appeal are fundamentally arguing two errors of law. Namely, that grounds 1 and 3 assert that that there was no evidence on which the learned Magistrate could find that the Notice was “served by post”, and that ground 2 asserts that the learned Magistrate erred in misapplying the authorities relied on by the appellant at trial.
I note in this regard that ground 4 is also in substance raising the same error as grounds 1 and 3, and that ground 2 is also centrally focused on the identification of the evidence said to be required to establish service by post.
The respondent submits that the two relevant questions for determination are as follows:
(a) Was the Notice in the outgoing mail handed to the Australia Post driver on 5 March 2014.
(b) If the Notice was in the outgoing mail that was handed to the Australia Post driver on 5 March 2014, did handing the Notice to the Australia Post driver in all the circumstances amount to “service by post”.
The respondent submits that the answers to both these questions is “yes”, and therefore neither of the errors of law asserted can be established and the Notice of Appeal ought to be dismissed.
The respondent argues that there is no demonstrative error shown to arise from there being no evidence from which the learned Magistrate could be satisfied that the said notices were posted. The respondent submits that it is not the case here that there was no evidence upon which the learned Magistrate could have concluded that the notices were posted and thereby served.
In essence the respondent’s answer is that the appellant is not able to demonstrate that there was no evidence available to the learned Magistrate upon which she could make the findings which she made.
The respondent submits that in order to succeed on grounds 1 and 3, indeed I interpolate all four grounds, the appellant must show that there was no evidence upon which the learned Magistrate could have found that the Notices were duly served. The respondent points out that if there is some evidence to support the learned Magistrate’s findings the appellant’s grounds of appeal will not be made out.
The respondent submits that:[20]
[20]Respondent’s Submissions, 11 April 2017, [8]-[12].
8.To succeed on this point, the Appellant must show that there was no evidence on which the Magistrate could have found the Notice was duly served.
9.As Mason CJ observed in Australian Broadcasting Tribunal v Bond:[21]
[21][1990] HCA 33; (1990) 170 CLR 321 at [88]–[89], 356.
88.But it is said that “(t)here is no error of law simply in making a wrong finding of fact”: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J at p 77. Similarly, Menzies J observed in Reg v The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654:
“Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.”
89. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
10.As Santamaria JA noted in O'Connor v Bradshaw & Anor,[22] citing Bond:
[22][2015] VSCA 39 at [32], Kyrou and Ferguson JJA agreeing.
An error of law occurs where a finding is made where there is no evidence to support it.
11.As Aronson, Dyer and Groves observe:[23]
If there is some evidence, no matter how unconvincing, and no matter how overwhelmed it might have been by evidence to the contrary, the traditional approach is to treat the complaint as being factual …
12.If there is some evidence to support the Magistrate’s finding, the ground cannot be made out. On an appeal pursuant to s 272 of the CPA it is not for the Respondent to satisfy this Court that the elements of the offence have been proven beyond reasonable doubt.[24]
[23]Aronson, Dyer and Groves: Judicial Review of Administrative Action, 4th ed, Thomson Reuters at [4.370].
[24]In Rodger v Wojcik [2014] VSC 308, Croucher J was considering an appeal pursuant to an appeal pursuant to s 272 of the Criminal Procedure Act 2008 (Vic) in which a “no evidence” ground was asserted. His Honour observed at [32] that: The question is not whether I would have been satisfied beyond reasonable doubt on the evidence that the appellant exceeded the speed limit but whether it was open to the judicial registrar to reach that conclusion.
Further, the respondent notes that in an appeal such as this under s 272 of the Criminal Procedure Act 2008 (Vic), it is not for the respondent to satisfy the court that the elements of the offence have been proven beyond a reasonable doubt, it is for the appellant to identify an error of law.
The respondent submits that there was ample evidence before the learned Magistrate that the notices were served. The respondent points to the following findings of fact, none of which were challenged by the appellant and which, in the respondent’s submission, support the findings and inferences that the Final Notice addressed to the appellant was in fact posted and validly served:
(a) Ms Bennett’s evidence that she prepared a Final Notice to lodge income tax returns in respect of the appellant;[25]
[25]Reasons of Magistrate McLean, T113.27–29, T15.27-30 and T19.28-31.
(b) the Final Notice being addressed to the appellant;[26]
[26]Ibid T114.1-6, T19.12-15, T113.27–29, T15.27-30 and T19.28-31.
(c) a copy of the Final Notice being addressed to the appellant’s business address;[27]
[27]Ibid T114.6-12, T57.20-29, T113.27–29, T15.27-30 and T19.28-31.
(d) Mr Briggs’ evidence that on 5 March 2014 the notices were approved and placed in pre-paid envelopes and also her evidence that they were placed in the “outgoing mail tray” by Mr Briggs;[28]
(e) Ms Llewellyn’s evidence that on 5 March 2014 she collected the mail from the outgoing mail trays and lodged it with an Australia Post employee for processing and delivery;[29] and
(f) the evidence that neither of the Notices were returned to the ATO “undelivered”.[30]
[28]Ibid T114.13-16, T30.25-31, T31.1-21, T32.1-15.
[29]Ibid T114.17-23, T42-52, T46.30-47.4, T49.23-27, T52.34.
[30]Ibid T114.24-25.
The respondent also submits that the learned Magistrate relied, as she was entitled to do, as to the service of the notice, on the basis of the averments in the charges and the operation of s 8ZL(1) of the TAA. The content of the statements that were relevant to the averments, and established prima facie evidence, are set out in the Charge Sheet and Summons.[31] The respondent submits that in such circumstances that prima facie evidence alone is sufficient to dismiss grounds 1 and 3 of the appellant’s appeal.
[31]Affidavit of Joseph Guss, 10 November 2016, Exhibit “JG-1”.
The respondent submits that in addition to the averments referred to, there was a significant body of evidence on which the learned Magistrate could be satisfied, beyond reasonable doubt that the Final Notice was served on the appellant and sufficient evidence to support all the findings of fact made by the learned Magistrate, in particular those findings referred to in the respondent’s written submissions at paragraph 13(a) to (f).
Conclusions
In my view, the factual evidence to which I have made reference when addressing the respondent's submissions, provide more than sufficient evidence to render it open to the learned Magistrate to find that the appellant was properly served with the Final Notice. The body of evidence to which I have referred in paragraph [54] above is in my view ample to found a basis upon which the learned Magistrate could either directly find or, where necessary infer, that the Final Notice addressed to the appellant was posted and thereby served as required.
Further, in my view, Ms Llewellyn's evidence as to the process which she followed and the production by her of the daily mail statistics from 5 March 2014, which were not challenged or contradicted by the appellant at trial provides a key element of such evidence.
It is to be noted that the appellant on this appeal accepted that the relevant Final Notice was approved and placed in the outgoing mail tray and it was not argued otherwise.
The appellant's evidence was, however, that he did not receive either of the copies of the Final Notices. The learned Magistrate rejected that evidence.[32]
[32]Reasons of Magistrate McLean, T115.1-5.
In my view, it was also open to the learned Magistrate to rely upon the service of the Notices by reason of the averments in the charges as provided by s 8ZL(1) of the TAA. In my view, the learned Magistrate was, on that basis alone, entitled to find that the facts in the statements in the averments were made out as prima facie evidence.
Accordingly, I am satisfied that there was evidence before the learned Magistrate that the Final Notice was approved and placed in an envelope addressed to the appellant and also evidence that the notice was copied and placed in a second envelope with a letter addressed to the appellant's place of work. There was evidence that the envelopes were pre-paid and placed in the relevant out tray at the ATO and that, on the day in question, twenty-two standard letter items of mail were collected and delivered to the Australia Post driver, along with four items of larger mail.[33]
[33]Evidence referred to in paragraph 54(a) to (f) of these Reasons for Judgment; Affidavit of Joseph Guss, 13 February 2017, Exhibits “JG-9” and “JG-10”.
It is also of significance, in my view, in evaluating the evidence available to the learned Magistrate, that it was not suggested to Mr Briggs that he did not put the envelopes in the outgoing tray, nor was it put to Ms Llewellyn that she did not collect all of the envelopes in the outgoing tray on the relevant date. It was not suggested to her that she did not give all the mail, on that day, to an Australia Post driver.
Furthermore, it was not suggested to her, or any other relevant witness, that the ATO, or the mail subcontractor Decipha, were not under an engagement whereby the latter processed all the ATO’s Geelong office internal and external mail, all of which is “imprinted” and thereby charged to the ATO’s Australia Post account.
Further, in my view, the second ground relied upon by the appellant, in connection with the authorities also fails to give rise to any identified error of law on the part of the learned Magistrate.
I do not accept the appellant’s argument that handing the outgoing mail to an Australia Post driver who attended the ATO’s offices for the purpose of collecting that mail, in accordance with a procedure that had been in place for a number of years, did not amount to “posting” the mail, such that the notices were not “served by post”.
The appellant relies on a number of authorities that consider what amounts to “posting” a particular item. In my view, the learned Magistrate carefully considered those authorities and properly rejected the appellant's argument as asserting “far too narrow a meaning particularly in the context of large organisations with considerable mail volumes”.[34] Furthermore, each of the authorities relied on by the appellant can be distinguished.
[34]Reasons of Magistrate McLean, T115.26-33.
The Northumbrian Ice Cream case, which concerned whether a sealed Statement of Claim had been served, is distinguishable. On the particular facts before Brereton J, the evidence in that matter was only to the extent which established that an envelope had been placed in an outgoing mail tray and that was not evidence sufficient to establish posting.
In this case on the evidence before the learned Magistrate, it was established that they were the steps to which I have referred in relation to the processing of mail placed into the outgoing mail tray on 5 March 2014 and the process by which the same mail placed in that tray was cleared to Australia Post via Decipha, the mail handling subcontractors. It was established that the mail was collected, processed, and delivered to Australia Post, at least, there was evidence available to the learned Magistrate to be so satisfied to the required level.
In relation to the Dwyer case, relied on by the appellant, I accept the respondent's submissions that there was evidence that the process within the firm for handling outgoing mail existed, but there was no evidence that the process had been followed. The learned Magistrate in this case had evidence which established that the mail handling and mail dispatching process put in place by the ATO was followed on the relevant day in respect of the Final Notice in question.
In the Pearlburst case, there was no direct evidence about several aspects regarding the relevant envelope and mailing process. Here, as I have emphasised on a number of occasions, there was a relatively comprehensive body of evidence available at trial that Mr Briggs, Ms Llewellyn and Ms Bennett undertook the key elements regarding production of and the handling and posting of the particular Notices within the Geelong ATO office on 5 March 2014.
The appellant also relies upon the Grant Thornton case. The respondent submits that Daubney J in that case noted that he did not have evidence before him regarding a process within the solicitor's firm which could have given him a proper basis to conclude that posting had occurred.
Here, however, there was the oral and documentary evidence, to which I have referred, before the learned Magistrate as to the process of generating, handling and posting mail at the Geelong ATO on the relevant date.
In relation to the case of Brown relied upon by the appellant, the appellant refers to Bartlett J's statements at [13] where his Honour sets out a number of core and indispensable matters that must be established by evidence in order to prove service by post. In Brown however there was little or no evidence which was available to establish those matters.
In my view to establish service of a document by post there must be evidence that:
(a) the envelope containing the document had been correctly addressed, including to the correct person;
(b) the envelope had been stamped or franked or there was some other basis upon which to conclude that it had been paid in respect of its postage; and
(c) the envelope was placed into the custody of Australia Post for the purposes of delivery as a letter.
In this case I am persuaded that there was evidence available before the learned Magistrate upon which it was open to her Honour to find that each of the key elements, referred to in the last preceding paragraph, required to establish that a postal item had in fact been posted are made out.
Accordingly, I consider that, for the above reasons, the appellant's grounds of appeal are not made out.
Finally, in relation to the appellant's more tangential arguments, firstly in respect of s 29 of the AIA and, in particular, the appellant's arguments in paragraphs [16] to [18] of his written submission addressing the learned Magistrate's treatment of s 29 of the AIA, in my view, that Act is of application to all Commonwealth legislation, save in instances where relevant legislation evinces an express contrary intention or necessary intendment which excludes application.[35]
[35]Further, s 160 of the Evidence Act 2008 (Vic) applied to the proceedings (rather than s 160 of the Evidence Act 1995 (Cth), see Scope Data Systems Pty Ltd v David Goman as Representative of the Partnership BDO Nelson Parkhill [2007] NSWSC 278 at [10]), although the learned Magistrate made no reference to s 160 in the Reasons.
The learned Magistrate appears to have relied upon s 29 of the AIA which deems the service of items which have been posted in accordance with the section, subject to contrary evidence. In my view, it was open for the learned Magistrate to so conclude. The basis for that finding were the facts that I have referred to, summarised in the learned Magistrate’s reasons,[36] combined with the rejection of the potential rebutting evidence of the appellant which was not accepted by the learned Magistrate.[37] Accordingly, there was no evidence displacing the application of s 29 of the AIA although, given her Honour’s finding, any reliance on the section was, with respect, unnecessary.
[36]Reasons of Magistrate McLean, T112-116.
[37]Ibid T115.2-5.
As to the observations of the learned Magistrate during the course of argument in relation to the appellant’s submissions, in my view, the criticisms made by the appellant do not amount to an error of law of the type which is required to be established on an appeal of this nature.
For the above reasons I am not satisfied that the appellant has made out any of the grounds in his Notice of Appeal and I shall dismiss his appeal.
Orders
Accordingly I order that:
(a) The appellant’s Notice of Appeal dated 10 November 2016 is dismissed.
(b) The matter (E11966467) be remitted to the Magistrates’ Court of Victoria.
(c) A copy of this Order and these Reasons for Judgment be provided to the Magistrates’ Court of Victoria for the attention of the learned Magistrate.
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