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HEALY -v- DEPUTY COMMISSIONER OF TAXATION [2015] WASCA 44

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 44
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:37/2014	Heard:	6 NOVEMBER 2014
Coram:	BUSS JA NEWNES JA MURPHY JA	Delivered:	6/03/15
No of pages:	40	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	JAMES GERARD MICHAEL HEALY DEPUTY COMMISSIONER OF TAXATION
Catchwords:	Service Service of notice under s 222AOE of Income Tax Assessment Act 1936 (Cth) Postal Service When notice given to appellant Effect of s 29(1) of Acts Interpretation Act 1901 (Cth) Effect of s 160 of Evidence Act 1995 (Cth) Ordinary course of post Evidence of non-receipt but not non-delivery
Legislation:	Acts Interpretation Act 1901 (Cth), s 29 Evidence Act 1995 (Cth), s 5, s 160, s 182 Income Tax Assessment Act 1936 (Cth), s 222AOB, s 222AOC, s 222AOE, s 222AOF Taxation Administration Act 1953 (Cth)
Case References:	Bellway Corporation Ltd v Ausdrill Ltd [1995] 13 ACLC 1663 Bowman v Durham Holdings Pty Ltd [1973] HCA 55; (1973) 131 CLR 8 Brady v Millgate [1965] NSWR 247 Commissioner of Taxation v Barroleg Pty Ltd [1997] NSWSC 428; (1997) 37 ATR 190 Deputy Commissioner of Taxation v Starpicket Pty Ltd [2012] FCA 1196; (2012) 212 FCR 578 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Gusdote Pty Ltd v Ashley [2011] FCA 250; (2011) 193 FCR 227 Kemp v Wanklyn [1894] 1 QB 583 Kolistasis v Deputy Commissioner of Taxation; Wade v Deputy Commissioner of Taxation [2005] NSWCA 186; (2005) 59 ATR 551 Kudeweh v T & J Kelleher Builders Pty Ltd [1990] VR 701 Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176 Workers Compensation Nominal Insurer v Lozito-Strada Pty Ltd [2013] FCA 625

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HEALY -v- DEPUTY COMMISSIONER OF TAXATION [2015] WASCA 44 CORAM : BUSS JA

NEWNES JA

MURPHY JA

HEARD : 6 NOVEMBER 2014 DELIVERED : 6 MARCH 2015 FILE NO/S : CACV 37 of 2014 BETWEEN : JAMES GERARD MICHAEL HEALY

Appellant

AND

DEPUTY COMMISSIONER OF TAXATION

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WAGER DCJ

Citation : DEPUTY COMMISSIONER OF TAXATION -v- HEALY [2014] WADC 35

File No : CIV 7 of 2007

Catchwords:

Service - Service of notice under s 222AOE of Income Tax Assessment Act 1936 (Cth) - Postal Service - When notice given to appellant - Effect of s 29(1) of Acts Interpretation Act 1901 (Cth) - Effect of s 160 of Evidence Act 1995 (Cth) - Ordinary course of post - Evidence of non-receipt but not non-delivery

Legislation:

Acts Interpretation Act 1901 (Cth), s 29

Evidence Act 1995 (Cth), s 5, s 160, s 182
Income Tax Assessment Act 1936 (Cth), s 222AOB, s 222AOC, s 222AOE, s 222AOF
Taxation Administration Act 1953 (Cth)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Ms C H Thompson

Respondent : Mr A J Musikanth

Solicitors:

Appellant : Norton & Smailes

Respondent : Australian Government Solicitor

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

Bellway Corporation Ltd v Ausdrill Ltd [1995] 13 ACLC 1663
Bowman v Durham Holdings Pty Ltd [1973] HCA 55; (1973) 131 CLR 8
Brady v Millgate [1965] NSWR 247
Commissioner of Taxation v Barroleg Pty Ltd [1997] NSWSC 428; (1997) 37 ATR 190
Deputy Commissioner of Taxation v Starpicket Pty Ltd [2012] FCA 1196; (2012) 212 FCR 578
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Gusdote Pty Ltd v Ashley [2011] FCA 250; (2011) 193 FCR 227
Kemp v Wanklyn [1894] 1 QB 583
Kolistasis v Deputy Commissioner of Taxation; Wade v Deputy Commissioner of Taxation [2005] NSWCA 186; (2005) 59 ATR 551
Kudeweh v T & J Kelleher Builders Pty Ltd [1990] VR 701
Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176
Workers Compensation Nominal Insurer v Lozito-Strada Pty Ltd [2013] FCA 625

1 BUSS JA: The appellant appeals against a judgment of Wager DCJ (the primary judge). Her Honour dismissed an appeal by the appellant from a decision of a registrar of the District Court who had refused to set aside a judgment in default of appearance entered by the respondent/plaintiff (the Commissioner) against the appellant/defendant in a District Court action.

The background facts and circumstances

2 At all material times, the appellant was a director of World Class Service Pty Ltd (WCS).

3 WCS withheld amounts for the purposes of div 12 in sch 1 to the Taxation Administration Act 1953 (Cth) (the TAA).

4 The directors of WCS, including the appellant, failed to comply with s 222AOB of the Income Tax Assessment Act 1936 (Cth) (the ITAA) in relation to the amounts withheld. That is, the directors, including the appellant, failed to cause WCS to do at least one of the things set out in s 222AOB(1), read with s 222AOB(2), on or before the due date, namely:

(a) comply with subdiv 16-B in sch 1 to the TAA in relation to the amounts withheld for the purposes of div 12 in that schedule;

(b) make an agreement with the Commissioner under s 222ALA of the ITAA in relation to WCS's liability under subdiv 16-B in sch 1 to the TAA in respect of the amounts withheld for the purposes of div 12 in that schedule;

(c) appoint an administrator of WCS under s 436A of the Corporations Act 2001 (Cth); or

(d) begin to be wound up within the meaning of the Corporations Act.

5 By reason of the non-compliance with s 222AOB, the appellant became liable, by force of s 222AOC(1) of the ITAA, to pay to the Commissioner, by way of penalty, an amount equal to the unpaid amount of each of the amounts withheld by WCS. The total of those amounts was $164,731.96.

6 By s 222AOE of the ITAA, the Commissioner was not entitled to recover from the appellant the penalty payable by him pursuant to s 222AOC(1) 'until the end of 14 days after the Commissioner gives to [the appellant] a notice that':

(a) sets out details of the unpaid amount of the liability referred to in subsection 222AOC(1) … ; and

(b) states that the person is liable to pay to the Commissioner, by way of penalty, an amount equal to that unpaid amount, but that the penalty will be remitted if, at the end of 14 days after the notice is given:

(i) the liability has been discharged; or

(ii) an agreement relating to the liability is in force under section 222ALA; or

(iii) the company is under administration within the meaning of the Corporations Act 2001; or

(iv) the company is being wound up.

7 Section 222AOF(1) of the ITAA specified how the notice under s 222AOE may be given:

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

Note: Sections 28A and 29 of the

Acts Interpretation Act 1901

are also relevant to giving a notice under section 222AOE.

(2) In this section:

ASIC document means a return:

(a) lodged with the Australian Securities and Investments Commission under section 205B or 345 of the

Corporations Act 2001

; or

(b) lodged with a person under a law that, for the purposes of the Corporations Act 2001, is a previous law corresponding to section 205B or 345 of that Act.

8 At all material times, an ASIC document specified that the appellant's place of residence or business was 82 Limetree Circuit, Mindarie, WA, 6030. Mindarie is a suburb of Perth.

9 On Wednesday, 23 August 2006, the Commissioner sent a letter to the appellant, by prepaid post, addressed to the appellant at 82 Limetree Circuit, Mindarie, WA, 6030.

10 The letter contained a notice (the penalty notice) under s 222AOE of the ITAA in respect of the appellant's liability pursuant to s 222AOC(1).

11 David Paul Wimmer, an employee of the Australian Taxation Office, prepared the penalty notice, enclosed it in the prepaid letter and, on Wednesday, 23 August 2006, deposited it in the Australia Post box located near the corner of Chandler and College Streets in Belconnen, a suburb of Canberra.

12 The appellant's application in the District Court to set aside the judgment in default of appearance was supported by an affidavit sworn by him on 5 November 2012. In the affidavit, the appellant said:

(a) the first time he became aware of the existence of the penalty notice was when he received a facsimile transmission from the Commissioner on 1 September 2006;

(b) on 16 September 2006, he was personally served with a copy of the penalty notice; and

(c) he believes that the Commissioner may have posted the penalty notice to him on 23 August 2006, but he did not receive the penalty notice in the mail.

13 On 12 September 2006, an administrator of WCS was appointed. At all material times after that date, WCS was under administration within the meaning of the Corporations Act.

14 The Commissioner considered that the appellant was liable to pay the unpaid amount specified in the penalty notice because, in the Commissioner's view, none of the conditions for the remission of the penalty, as specified in s 222AOE of the ITAA and as stated in the penalty notice, had been satisfied at the end of 14 days after the penalty notice was given.

15 The Commissioner therefore filed a writ of summons in the District Court and, on 9 January 2007, the writ was served on the appellant. The time for entering an appearance to the writ expired on 19 January 2007. Judgment in default of appearance was entered on 21 March 2007. The Commissioner issued a bankruptcy notice on 2 April 2007. The Commissioner filed a petition in the Federal Court on 23 July 2007 for a sequestration order in relation to the appellant's estate, and on 19 November 2007 the order was made.

16 On 8 December 2010, the appellant was discharged from bankruptcy. On 22 October 2011, he paid the balance of the judgment debt, having earlier paid part of it.

17 On 3 December 2012, the appellant filed an application in the District Court to set aside the judgment in default of appearance.

18 On 5 June 2013, the Federal Court annulled the sequestration order.

The relevant statutory provisions relating to proof of when the penalty notice was given

19 Section 29 of the Acts Interpretation Act1901 (Cth) provides:

29 Meaning of service by post

(1) 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 the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter 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.

(2) This section does not affect the operation of section 160 of the Evidence Act 1995.

20 The word 'document' is broadly defined in s 2B of the Acts Interpretation Act.

21 By s 2 of the Acts Interpretation Act, that Act applies to all Acts, but the application of the Acts Interpretation Act or a provision of that Act to an Act or a provision of an Act is subject to a contrary intention.

22 Section 160 of the Evidence Act1995 (Cth) provides:

160 Postal articles

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(2) This section does not apply if:

(a) the proceeding relates to a contract; and

(b) all the parties to the proceeding are parties to the contract; and

(c) subsection (1) is inconsistent with a term of the contract.

(3) In this section:

working day

means a day that is not:

(a) a Saturday or a Sunday; or

(b) a public holiday or a bank holiday in the place to which the postal article was addressed.

Note: Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency.

23 The term 'postal article' is defined in the Dictionary at the end of the Act to have the same meaning as in the Australian Postal Corporation Act 1989 (Cth). The penalty notice sent by the Commissioner to the appellant in the present case was a postal article.

24 By s 182(4A) of the Evidence Act, s 160 applies in relation to postal articles sent by a 'Commonwealth agency' as if s 160 applied to the extent provided for in s 5.

25 The term 'Commonwealth agency' is defined in the Dictionary. The Commissioner is a Commonwealth agency.

26 By s 5 of the Evidence Act, the provisions of s 182 in relation to, relevantly, postal articles sent by Commonwealth agencies, apply to all proceedings in an 'Australian court'.

27 The term 'Australian court' is defined in the Dictionary to include, relevantly, a court of a State.

Australia Post's annual report for the 2006/2007 year

28 In District Court proceedings, the Commissioner filed and relied on an affidavit of Carla Kovacevic sworn 14 March 2013. Copies of Australia Post's annual report for the 2006/2007 year and other relevant documents were annexed to the affidavit.

29 The documents state in effect:

(a) For some purposes, New South Wales includes the Australian Capital Territory (GAB 46).

(b) During the 2006/2007 year, the delivery standard applicable to the delivery of a regular letter between the metropolitan area of a capital city in one State and the metropolitan area of a capital city in another State was two business days (GAB 47).

(c) During the 2006/2007 year, 96.3% of such letters were delivered in accordance with the delivery standard (that is, within two business days) (GAB 60, 63, 66, 67).

(d) During the 2006/2007 year, 99% of such letters were delivered within the delivery standard plus one day (that is, within three business days) (GAB 63, 67).

(e) During the 2006/2007 year, the actual delivery performance of Australia Post in Western Australia was not materially different from the national averages referred to in pars (c) and (d) above. In that year 95.3% of regular letters were delivered in Western Australia within two business days, and 99% of such letters were delivered within three business days, after posting (GAB 67).

(f) During the three-month period ended 30 September 2006, 96.3% of regular letters were delivered in Western Australia within two business days, and 99.2% of such letters were delivered within three business days, after posting (GAB 67).

(g) The statistics to which I have referred include regular letters posted from Canberra to Perth.

30 By letter dated 23 August 2007, the Auditor-General expressed the opinion that Australia Post was, in all material respects, in compliance with its performance standards during the year ended 30 June 2007.

31 By letter dated 17 July 2007, Research International said that its monitoring of Australia Post's domestic letter service against its delivery undertakings for the year ended 30 June 2007 showed that 'Australia Post delivered 96.3% of all letters early or on time, and 99.0% of letters were delivered on time or not more than one working day' after the performance standards (GAB 63).

32 By letter dated 19 July 2007, Deloitte Touche Tohmatsu said that it had reviewed the monitoring undertaken by Research International and 'nothing [had] come to [its] attention that would suggest the results reported by Research International [had] not been calculated in accordance with the business rules or [did] not fairly represent the performance of Australia Post's domestic letter service for the year ended 29/06/2007 [sic]' (GAB 66).

33 The accuracy of the statistics and other information in the Australia Post report was not challenged by the appellant.

The issues in contention before the primary judge

34 The issues in contention before the primary judge were as follows:

(a) Did the appellant have a reasonably arguable defence to the Commissioner's claim?

(b) Did the appellant have a reasonable explanation for failing to enter an appearance and allowing default judgment to be entered?

(c) Did the appellant delay in applying to set aside the default judgment and, if so, did he have a reasonable explanation for the delay?

(d) Did any delay by the appellant cause prejudice to the Commissioner?

The primary judge's resolution of the issues in contention

35 As to the first issue in contention, the primary judge found that the appellant did not have a reasonably arguable defence to the Commissioner's claim. Her Honour's reasoning was as follows:

(a) Australia Post's annual report for the 2006/2007 year was 'appropriate and relevant' and was unchallenged [40]. Her Honour said there was no reason why the statistics and other information in the report should not be accepted [40].

(b) After referring to s 29 of the Acts Interpretation Act and s 160 of the Evidence Act, and noting the appellant's submission that s 29 'must be considered in light of' s 160, her Honour said the presumption referred to in s 160 of the Evidence Act did not arise 'because the evidence does not raise a doubt' [40].

(c) The time of delivery of the penalty notice, 'in the ordinary course of post', was 'a maximum of three working days after 23 August 2006' [40].

(d) The penalty notice was therefore given by the Commissioner to the appellant, for the purposes of s 222AOE of the ITAA, on Monday, 28 August 2006 [40].

(e) The date by which an administrator of WCS had to be appointed, in accordance with s 222AOE(b)(iii) of the ITAA, for remission of the penalty, was 11 September 2006, being 'the end of 14 days after the [penalty] notice [was] given', within s 222AOE(b) [40].

(f) The administrator of WCS was not appointed until 12 September 2006 [40].

(g) The administrator was therefore appointed 'one day too late' [40].

36 As to the second issue, her Honour found that:

(a) In about March 2006, the appellant and his wife separated and this had a significant impact on the businesses they operated [45].

(b) From 24 April 2006, the appellant received psychiatric treatment and was prescribed medication for depression and attention deficit hyperactivity disorder [45].

(c) The appellant believed he was not personally liable for the amounts which WCS had failed to pay to the Commissioner because an administrator of WCS was appointed on 12 September 2006. He therefore did not enter an appearance. Also, the appellant understood 'he was not required to do anything with the writ because [the administrator] was settling the debt owed by WCS to the [Australian Taxation Office]' [46]. Further, the appellant believed that 'once the debt was settled, the [Australian Taxation Office] would withdraw the writ as a matter of course' [46].

37 Her Honour accepted that the appellant's understanding 'may have been marred by his health problems up to the time he received the writ and possibly for a short period thereafter' [47].

38 As to the third issue, her Honour found that the appellant's delay 'prior to and after 2010 [was] inordinate being in total a period of five years and eight months' [53].

39 As to the fourth issue, her Honour accepted that the Commissioner would suffer 'less prejudice than a smaller entity placed in a position of being required to pay back a significant sum of money after a period of many years' [54]. However, if the default judgment was set aside the Commissioner would be required to call evidence at trial 'in respect of the usual course of post in 2006' and, after seven years, 'it [was] likely to be difficult to locate witnesses involved in the postal delivery service in August and September 2006 who would have clear recollections of procedures, dates and processes' [54]. Her Honour concluded that the 'difficulty faced by prospective witnesses' would prejudice the Commissioner [54].

40 Accordingly, the primary judge, having found that there was no credible defence on the merits and that the appellant's delay was inordinate, dismissed the appeal.

The grounds of appeal before this court

41 The appellant relies on three grounds in his appeal to this court.

42 Ground 1 alleges the primary judge erred in law in finding that the appellant did not have a reasonably arguable defence on the merits.

43 Ground 2 alleges her Honour erred in finding that there was no reasonable explanation for the appellant's delay in applying to set aside the default judgment.

44 Ground 3 alleges her Honour erred in finding that the Commissioner would suffer prejudice.

Ground 1: the appellant's submissions

45 Counsel for the appellant submitted that the effect of s 29 of the Acts Interpretation Act, read with s 160 of the Evidence Act, is that 'when relying on postal service, a penalty notice is given at the time that it would have been delivered in the ordinary course of post, which is presumed to be the fourth working day after posting, unless there is evidence in respect to the particular notice which displaces the presumption'. It was further submitted that a party 'seeking to displace the presumption in section 160 of the Evidence Act must point to evidence which proves the contrary of the deemed time of service'.

46 According to counsel, the primary judge erred by relying on evidence of the overall performance standards of Australia Post for the whole of Australia and for the entire year 2006/2007, 'and treating that as evidence of when this particular penalty notice, or indeed any correspondence sent from Belconnen to Mindarie in August 2006, would have been received in the ordinary course of post, so as to displace the presumption' in s 160.

47 Counsel for the appellant asserted that the evidence adduced by the Commissioner, and relied on by her Honour, 'did not descend to the level of specificity necessary to displace the presumption in section 160 [of the Evidence Act] because it [said] nothing about postal deliveries between Belconnen and Mindarie, or even [between] the [Australian Capital Territory] and Western Australia, between 23 and 30 August 2006'. It was contended that '[t]he approach taken to the evidence [was] far too general'.

48 Counsel criticised the primary judge's finding that the presumption in s 160 of the Evidence Act did not arise 'because the evidence does not raise doubt' [40]. According to counsel, this finding was 'wrong' and failed to address the correct question. It was submitted that the 'correct question was whether there was evidence sufficient to raise doubt about the operation of the presumption' in s 160.

49 Counsel argued that the delivery by Australia Post of 99% of regular letters within three business days nevertheless resulted in a very significant number of letters being delivered after that period. Counsel also argued that the appellant's evidence that he had not received the letter containing the penalty notice in the mail was sufficient to establish a reasonably arguable case of non-delivery.

50 Finally, counsel for the appellant submitted that 'all [the Commissioner had] demonstrated [was] the overall achievements of Australia Post, throughout the [whole] of Australia for the whole of the 2006-2007 year', and that was not evidence 'of sufficient particularity to displace the presumption in [s 160 of the Evidence Act]' as to what the 'ordinary course of post' was at the relevant time 'between the relevant locations, in late August 2006'.

Ground 1: the 'ordinary course of post'

51 In Bowman v Durham Holdings Pty Ltd [1973] HCA 55; (1973) 131 CLR 8, Stephen J (Barwick CJ & Menzies J agreeing) said:

(a) the 'ordinary course of post' is concerned with 'the general delivery practices of the postal service' and not the particular idiosyncrasies of a particular addressee; and

(b) the 'ordinary course of post' is not concerned with particular circumstances of an addressee which may, if known to the postal service or its representatives, deter the postal service from attempting to effect delivery to a particular addressee (14).

52 Stephen J referred with approval to the following observations of Lord Esher MR in Kemp v Wanklyn [1894] 1 QB 583:

The Post Office is the authority which, under its statutory powers, determines the ordinary course of the post - that is to say, how the letters shall be carried, and at what time they shall, as a general rule, be delivered within any particular district to the persons taken as a body who reside in that district. It appears to me that all the objector has to do under s 100 is to look at the Post Office regulations, and to see whether a letter posted at the place, from which he proposes to send the notice, would, according to the ordinary course of post, be delivered to any person resident within the district to which he is posting the notice, as to whom there is no exceptional mode of delivering letters, on or before August 20. He is not bound to inquire whether within the district there may be some people who, by some special arrangement with the post-office officials there, made either with or without the authority of the Post Office, have their letters delivered in an exceptional manner. Such a special arrangement would be, not the ordinary, but an extraordinary, course of post (585).

See also

Deputy Commissioner of Taxation v Starpicket Pty Ltd

[2012] FCA 1196; (2012) 212 FCR 578 [74] (Greenwood J).

71 So, for example, in a particular case, where:

(a) an Act authorises or requires a document to be

served

(including given or sent) within s 29(1);

(b) the Act does not evince an intention that s 29(1) should not apply;

(c) the conditions prescribed by s 29(1) and s 160 in relation to posting or sending are satisfied; and

(d) the time at which the letter containing the document would have been delivered to the specified address, in the ordinary course of post, is not proved within s 29(1),

then, in the absence of evidence sufficient to raise doubt about the rebuttable presumption created by s 160, that presumption will be engaged for the purposes of the second limb of s 29(1), and the letter will be taken to have been delivered to or received at the specified address on the fourth working day after it was posted.

72 Further, for example, in a particular case, where:

(a) an Act authorises or requires a document to be

served

(including given or sent) within s 29(1);

(b) the Act does not evince an intention that s 29(1) should not apply; and

(c) the conditions prescribed by s 29(1) and s 160 in relation to posting or sending are satisfied,

then, if evidence is adduced that is sufficient to raise doubt about the rebuttable presumption created by s 160, that presumption will not be engaged for the purposes of the second limb of s 29(1), and the deeming provision in the second limb of s 29(1) will not apply unless the time at which the letter containing the document would have been delivered to the specified address, in the ordinary course of post, is proved.

73 In the present case, the Commissioner sought to invoke s 29(1) of the ActsInterpretation Act and, in that connection, to prove that:

(a) the Commissioner gave the appellant the penalty notice under s 222AOE, in the manner specified in s 222AOF(1), of the ITAA;

(b) the conditions prescribed by s 29(1) in relation to the posting of the penalty notice as a letter had been satisfied;

(c) the letter containing the penalty notice would have been delivered, in the ordinary course of post, from Belconnen to the specified address in Mindarie on or before Monday, 28 August 2006 (that is, on or before the third business or working day after having been posted);

(d) in the circumstances, there was evidence sufficient to raise doubt about the presumption in s 160 of the Evidence Act; and

(e) the deeming provision in the second limb of s 29(1) therefore applied.

74 By contrast, the appellant sought, in the present case, to invoke s 160 of the Evidence Act for the purpose of establishing that he had at least a reasonably arguable defence to the Commissioner's claim on the basis that the penalty notice was presumed by s 160 to have been received at the specified address on Tuesday, 29 August 2006, being the fourth working day after it was posted.

75 In my opinion, s 222AOE, read with s 222AOF, of the ITAA does not require that a penalty notice be actually received by the person to whom it is sent. My reasons are as follows.

76 First, s 222AOF(1) states, relevantly, that the Commissioner may give a person a penalty notice under s 222AOE by 'leaving it at, or sending it by post to, … an address that appears from [ASIC] documents to be, or to have been within the last 7 days, the person's place of residence or business'. The focus of s 222AOF(1) is upon a place, namely the relevant address. Section 222AOF(1) authorises the Commissioner to leave a penalty notice at, or send a penalty notice by post to, an address that appears from ASIC documents 'to have been', within the last seven days, the person's place of residence or business, even though that address may not actually be the person's place of residence or business at the time when the penalty notice is left or posted. Section 222AOE, read with s 222AOF, therefore contemplates the possibility that a penalty notice may not actually be received by the person named as the addressee.

77 Secondly, the note to s 222AOF(1) states, relevantly and in effect, that s 29 of the Acts Interpretation Act is also relevant to giving a penalty notice. By s 13(1) of the Acts Interpretation Act, Parliament has made notes, in the statutory text, part of the Act. Section 29(1) is relevant to the giving of a penalty notice under s 222AOE, read with s 222AOF, in that the ITAA authorises a penalty notice to be given by being sent by post and the expression 'serve' in s 29(1) includes, in effect, the expression 'give' used in s 222AOE and s 222AOF.

78 Thirdly, where the conditions prescribed by s 29(1) in relation to the posting of a document as a letter are satisfied, the first limb of s 29(1) deems the document to have been served (including given or sent), and the second limb of s 29(1) deems the document to have been served (including given) at the time at which the letter would have been delivered, in the ordinary course of post, unless the contrary is proved. Section 29(1) is concerned with the delivery of the document as a letter to the place specified on the letter as the address, as distinct from the delivery of the document as a letter to the person named as the addressee. Proof to the contrary, within the second limb of s 29(1), involves proof of non-delivery to the specified address, not proof of non-receipt by the person to whom the letter is addressed. The fact of non-receipt by the person named as the addressee does not displace the deeming provision in the second limb of s 29(1).

79 In the present case, it is necessary, in determining the merits of ground 1, to evaluate the relevant facts and circumstances by reference to the following components of s 222AOE read with s 222AOF(1) of the ITAA, s 29(1) of the Acts Interpretation Act and s 160 of the Evidence Act:

(a) Did the ITAA authorise or require the penalty notice to be served by post?

(b) If so, was the penalty notice enclosed in an envelope that was properly addressed to the appellant, at an address that appeared from an ASIC document to be, or to have been within the last seven days, the appellant's place of residence or business, and sent as a letter to that address by prepaid post?

(c) If so, does the ITAA evince an intention that service of the penalty notice should not be deemed to have been effected by enclosing the penalty notice in an envelope that was properly addressed to the appellant and sent as a letter by prepaid post?

(d) If not:

(i) was evidence adduced that was sufficient to raise doubt about the rebuttable presumption created by s 160;

(ii) was evidence adduced that established when the letter containing the penalty notice would have been delivered to the appellant's specified address in the ordinary course of post?

(e) Is it reasonably arguable that the letter containing the penalty notice was not delivered to the appellant's specified address until on or after Tuesday, 29 August 2006?

80 As to component (a), the ITAA authorised the penalty notice to be served by post. See s 222AOE read with s 222AOF.

81 As to component (b), Mr Wimmer gave sworn evidence that he prepared the penalty notice, enclosed it in a prepaid letter addressed to the appellant at his place of residence, as specified in an ASIC document, and, on Wednesday, 23 August 2006, deposited the letter in the Australia Post box located near the corner of Chandler and College Streets in Belconnen. This evidence was not disputed.

82 As to component (c), the ITAA does not evince an intention that service of the penalty notice should not be deemed to have been effected by enclosing the penalty notice in an envelope that was properly addressed to the appellant and sent as a letter by prepaid post. Indeed, by the note to s 222AOF(1), the ITAA evinces an intention that s 29 of the Acts Interpretation Act applies to the giving of a penalty notice under s 222AOE of the ITAA. As I have mentioned, by s 13(1) of the Acts Interpretation Act, Parliament has made notes, in the statutory text, part of the Act.

83 As to component (d), the Commissioner relied on affidavit evidence that was probative of the time at which the letter addressed to the appellant would have been delivered in the ordinary course of post.

84 In the present case, the notion of the 'ordinary course of post' is concerned with the general delivery practices of Australia Post at the material time. It relates to the transport of letters from one geographic area to another, including the time that elapsed as a general rule between the posting of letters in one geographic area and their delivery in another. The determination of those matters involved questions of fact and required findings of fact. The 'ordinary course of post' is not concerned with unusual, exceptional or extraordinary events or circumstances.

85 It is apparent from Australia Post's annual report for the 2006/2007 year that Australia Post arranged its letter delivery standards of service on the basis of postings from and deliveries to metropolitan areas and country areas. The geographic unit for these standards of service in metropolitan areas was, relevantly, capital cities within each State or Territory, and not individual suburbs, streets or addresses within the capital cities.

86 In the present case, I am satisfied that delivery in the ordinary course of post refers, relevantly, to delivery at the material time from Canberra to Perth generally and not, as the appellant submitted, delivery at the material time from Belconnen to Mindarie. In any event, there is no reason to suspect that at the material time the standards of service for postal deliveries between Belconnen and Mindarie were different from the standards of service for postal deliveries between Canberra and Perth generally. The Commissioner was not required to adduce evidence about postal deliveries between Belconnen and Mindarie as distinct from postal deliveries between Canberra and Perth generally.

87 I am also satisfied that the evidence as to Australia Post's delivery standards, and its rate of success in achieving those standards, in relation to regular letters between the Australian Capital Territory and Western Australia generally throughout the 2006/2007 year, and in particular during the three-month period ended 30 September 2006, was sufficient evidence as to the ordinary course of post between Canberra and Perth in late August 2006. There is no reason to suspect that the statistics for the 2006/2007 year, or the statistics for the three-month period ended 30 September 2006, between the Australian Capital Territory and Western Australia generally did not accurately reflect what occurred in late August 2006 in relation to postal deliveries between Canberra and Perth.

88 The appellant's affidavit evidence that he did not receive the letter containing the penalty notice in the mail is not of any significance. His evidence is merely probative of non-receipt by him of the letter. It is not probative of the non-delivery of the letter to 82 Limetree Circuit, Mindarie or its non-receipt at that address. As I have explained, s 222AOE, read with s 222AOF, of the ITAA does not require that a penalty notice be actually received by the person to whom it is posted or sent. The appellant did not adduce any evidence to the effect that the letter containing the penalty notice was not or may not have been delivered to 82 Limetree Circuit, Mindarie within three business days or at all.

89 The primary judge found in effect that 'a very high percentage, over 99% of items were delivered within three working days in 2006/2007' [34]. Her Honour also found that 'evidence of the Australia Post annual report statistics 2006/2007 provide[s] a true indication of the likely time by which mail was delivered in 2006' [35]. Her Honour concluded that there was 'no reason why the Australia Post evidence should not be accepted' [40]. Those findings and that conclusion were not merely open to her Honour. They were plainly correct.

90 In my opinion, the evidence before her Honour proved, on the balance of probabilities, that at the material time a properly addressed letter sent by prepaid post from Canberra (including Belconnen) to Perth (including Mindarie) would be delivered, in the ordinary course of post, within three business days after posting.

91 In the circumstances, there was evidence sufficient to raise doubt about the presumption in s 160 of the Evidence Act and evidence sufficient to prove, on the balance of probabilities, when the letter containing the penalty notice would have been delivered in the ordinary course of post.

92 It follows that the evidence before the primary judge proved, on the balance of probabilities, that the letter containing the penalty notice would have been delivered, in the ordinary course of post, from Belconnen to the appellant's residential address at 82 Limetree Circuit, Mindarie on or before Monday, 28 August 2006 (that is, on or before the third business or working day after having been posted).

93 As to component (e), her Honour correctly found that it was not reasonably arguable that the letter containing the penalty notice was not delivered to the appellant's specified address until on or after Tuesday, 29 August 2006.

94 Ground 1 fails.

Ground 2

95 I agree with Newnes JA, for the reasons he gives, that ground 2 is without merit.

Ground 3

96 I agree with Newnes JA, for the reasons he gives, that ground 3 has been made out.

Conclusion

97 The primary judge was correct in finding that there was no reasonably arguable defence on the merits and that the appellant's delay was inordinate. Those findings are not affected by her Honour's error in deciding that the Commissioner would suffer prejudice. The appeal must therefore be dismissed.

98 NEWNES JA: This is an appeal from a judgment of Wager DCJ in the District Court, dismissing an appeal from the decision of a registrar who had refused to set aside a default judgment entered against the appellant.

Background

99 The appellant was at the material time a director of World Class Service Pty Ltd (WCS). WCS was required under the Income Tax Assessment Act 1936 (WA) and div 12 in sch 1 to the Taxation Administration Act 1953 (Cth) (div 12), to withhold income tax from the salaries and wages of its employees and officeholders, and to remit the amount of that income tax to the Commissioner of Taxation (the Commissioner) on a monthly basis, together with a monthly business activity statement setting out the amount withheld.

100 At the time, div 9 of pt VI of the Income Tax Assessment Act dealt with penalties for a director of a company where the company failed to remit to the Commissioner an amount of income tax withheld from employees or officeholders. Relevantly, s 222AOB provided, in substance, that on or before the due date for deduction of the income tax the directors of the company must cause the company to take one or more of following steps: pay the amount withheld to the Commissioner, make an agreement with the Commissioner for it to be paid, appoint an administrator, or commence winding up.

101 If the company failed to take any of those steps, each of the directors was personally liable to pay the Commissioner, by way of penalty, an amount equal to the unpaid amount of the company's liability: s 222AOC(1). However, the Commissioner was not entitled to recover the penalty from a director until 14 days after the Commissioner gave that person a director penalty notice (DPN) in accordance with s 222AOE. If within that 14 day period certain steps were taken, relevantly in this case an administrator was appointed to the company, the penalty was automatically remitted: s 222AOG. A DPN is to give a director a 'last chance' to negate the penalty: Kolistasis v Deputy Commissioner of Taxation; Wade v Deputy Commissioner of Taxation [2005] NSWCA 186; (2005) 59 ATR 551 [26].

102 WCS failed to pay to the Commissioner an amount of $164,731.96 in income tax withheld from employees or officeholders and, on 23 August 2006, a DPN was sent to the appellant in respect of that amount. An employee of the Australian Taxation Office at that time, Mr Wimmer, has deposed that he prepared and posted the DPN to the appellant on 23 August 2006, having addressed it to the appellant at his last known residential address as shown in the documents of the Australian Securities and Investment Commission (ASIC): see s 222AOF(1) of the Income Tax Assessment Act. Mr Wimmer's evidence was not challenged.

103 The appellant claims that he did not receive the DPN by post and first became aware of it on 1 September 2006 when a representative of the Australian Taxation Office sent him a copy by facsimile.

104 An administrator was appointed to WCS on 12 September 2006. It follows that if the DPN was given to the appellant on or after 29 August 2006, the penalty was automatically remitted pursuant to s 222AOG. If it was given before that date the penalty was not remitted and the appellant was liable for the amount of it.

105 The Deputy Commissioner, the delegate of the Commissioner, took the view that the DPN was given before that date and commenced proceedings against the appellant for the amount of the penalty. The appellant was served with the writ of summons on 9 January 2007 and he was therefore required to enter an appearance by 19 January 2007. He failed to do so and, on 21 March 2007, default judgment was entered against him in the sum of $164,731.96 plus costs of $732.70.

106 On 2 April 2007, the Deputy Commissioner caused a bankruptcy notice to be issued and a sequestration order was made against the appellant's estate on 19 November 2007. The appellant was discharged from bankruptcy on 8 December 2010 and, on 5 June 2013, his bankruptcy was annulled by order of the Federal Court.

107 On 3 December 2012, the appellant applied to set aside the default judgment. A registrar of the District Court dismissed the application and the appellant appealed to a judge of that court against the registrar's decision. On 21 March 2014, the primary judge dismissed the appeal.

The reasons of the primary judge

108 The primary judge found that the administrator had not been appointed within 14 days of the service of the DPN and therefore the penalty had not been remitted [40]. It followed that the appellant did not have an arguable defence to the claim.

109 In determining the date upon which the DPN was given to the appellant, her Honour relied upon s 29(1) of the Acts Interpretation Act 1901 (Cth), which (so far as relevant) provides, in effect, that unless the contrary is proved, service of a document posted as a letter is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. Based on statistics contained in Australia Post's Annual Report for 2006-2007 (the annual report), which was put into evidence by the respondent, her Honour found that in the ordinary course of post the DPN would have been delivered to the appellant's address in Mindarie within three working days of being posted in Canberra. The evidence of the respondent that the DPN was posted in Canberra on 23 August 2006 was not uncontested. Accordingly, the DPN was deemed to have been delivered to the appellant's address on or before 28 August 2006 (26 and 27 August 2006 being a Saturday and a Sunday) [40].

110 The primary judge rejected a submission by the appellant that the position was altered by the presumption in s 160 of the Evidence Act 1995 (Cth) that an article sent by prepaid post to a specified address in Australia was received on the fourth working day after being posted. Her Honour noted that the presumption arose 'unless evidence sufficient to raise doubt about the presumption is adduced' and concluded that in this case it did not arise 'because the evidence does not raise doubt'. Her Honour considered the evidence established that in the ordinary course of post the DPN would have been delivered within three days after being posted [40].

111 In addition, her Honour found, first, that the appellant had not provided a reasonable explanation for the delay of five years and eight months in seeking to set aside the default judgment ([48] - [53]), and, secondly, that the respondent would suffer prejudice if the default judgment was set aside, in that it was likely to find it difficult to locate witnesses involved in postal delivery in August and September 2006 who had any clear recollection of procedures, dates and processes [54].

The grounds of appeal

112 There are three grounds of appeal. They are, in substance:

1. The primary judge erred in law in finding that the appellant did not have a defence on the merits as her Honour should have found that it was arguable an administrator was appointed to the company within 14 days after the DPN was given to the appellant, with the result that the penalty was remitted;

2. The primary judge erred in fact in finding there was no reasonable explanation for the delay in seeking to set aside the default judgment; and

3. The primary judge erred in fact and law in finding that the respondent would suffer prejudice if the default judgment was set aside.

The disposition of the appeal

Ground 1

113 This ground is crucial to the appellant's case on the appeal. As counsel for the appellant correctly conceded, unless the appellant can make good this ground the other grounds do not arise (ts 4 - 5).

114 It is convenient to turn first to the relevant statutory provisions. Section 29(1) of the Acts Interpretation Act provides:

(1) Where an Act authorises or requires any document to be served by post, whether the expression 'served' 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, prepaying and posting the document as a letter 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.

(2) This section does not affect the operation of s 160 of the Evidence Act 1995.

115 At the relevant time, s 222AOF(1) of the Income Tax Assessment Act provided, in effect, that the Commissioner may 'give' a person a DPN by sending it by post to an address that appears from 'ASIC documents' to be, or to have been within the last 7 days, the person's place of residence or business. It was not in issue that the address to which the DPN was sent was the appellant's place of residence or business as appeared from 'ASIC documents'.

116 Section 160 of the Evidence Act provides:

Postal articles

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external territory was received at that address on the fourth working day after having been posted.

…

(3) In this section: working day means a day that is not:

(a) a Saturday or a Sunday; or

(b) a public holiday or a bank holiday in the place to which the postal article was addressed.

117 Section 160 of the Evidence Act applies in the present case by virtue of s 5 and s 182(4A) of the Evidence Act. That was not in issue on the appeal.

118 While s 29(1) of the Acts Interpretation Act refers to the 'time at which the letter would be delivered' to the specified address and s 160 of the Evidence Act refers to the time at which a postal article was 'received at [the specified address]', I respectfully agree with the view of White J in Scope Data Systems Pty Ltd v David Goman as Representative of the Partnership BDO Nelson Parkhill [2007] NSWSC 278; (2007) 70 NSWLR 176 [49], that there is no distinction between the delivery of a letter or postal article to a specified address or place, and its receipt at that address or place.

119 The application of s 29(1) of the Acts Interpretation Act and s 160 of the Evidence Act to the circumstances of this case, and their interaction, was not in issue on the appeal. In my view, the effect of those provisions is as follows:

(1) evidence which establishes the actual time of delivery to the postal address establishes the time at which service is effected (there is no such evidence in this case);

(2) if the evidence does not establish actual delivery, then, pursuant to s 29(1) of the Acts Interpretation Act, unless the contrary is proved, delivery is deemed to be effected in the ordinary course of post, the date upon which delivery would occur in the ordinary course of post being a question of fact to be proved by evidence. In the absence of such evidence, there will be no proof that the article was delivered at a particular time;

(3) if it is established that the article was not delivered in the ordinary course of post, but the evidence does not establish when it was delivered, then, pursuant to s 160 of the Evidence Act, the letter is presumed to have been delivered on the fourth working day after having been posted, unless evidence sufficient to raise doubt about the presumption is adduced;

(4) if evidence sufficient to raise doubt about the presumption is adduced, then there will be no proof of delivery by post having occurred.

See Scope Data Systems [38] - [39].
120 The appellant contended that the statistics as to postal delivery times contained in the annual report were at too high a level of generality to establish when the DPN would have been delivered to the appellant's address in the ordinary course of post. The primary judge therefore erred in relying upon s 29(1) of the Acts Interpretation Act in determining date of delivery. Instead, her Honour should have applied the presumption in s 160 of the Evidence Act. Pursuant to s 160, the DPN was presumed to have been delivered to the appellant's address on the fourth working day after posting. The fourth working day after 23 August 2006 was 29 August 2006. The administrator appointed to the company on 12 September 2006 was therefore appointed within 14 days after the DPN was given to the appellant and the penalty was automatically remitted.

121 The respondent submitted that the primary judge had correctly found that the statistics contained in the annual report established that in the ordinary course of post the DPN would have been delivered to the appellant's address on or before 28 August 2006 and accordingly, by virtue of s 29(1) of the Acts Interpretation Act, the DPN was deemed to have been given to the appellant on or before that date. The presumption contained in s 160 of the Evidence Act did not come into play.

122 The question, therefore, is whether the evidence before the primary judge established that in the ordinary course of post the DPN would have been delivered to the appellant's residential address on or before 28 August 2006.

123 The relevant evidence was contained in an affidavit of Ms Kovacevic, a solicitor employed by the Australian Government Solicitor. Ms Kovacevic annexed to her affidavit a copy of the annual report. In the annual report, it is stated that:

One of the obligations that [Australia Post] must meet is 94 per cent on-time delivery of non-bulk letters. In 2006/07, we again exceeded that target, delivering 96.3 per cent of domestic letters on time or early (compared with 95.6 per cent the previous year). Nearly all of the remaining 3.7 per cent of letters were delivered the following day.

124 The annual report identifies the interstate delivery standard for letters between metropolitan areas of capital cities to be the second business day. On that basis, a letter posted in the metropolitan area of Canberra on 23 August 2006 would be delivered to an address in the metropolitan area of Perth on 28 August 2006.

125 In a breakdown of the above statistics, the annual report states that, in 2006/2007, 95.3% of letters delivered in Western Australia were delivered in accordance with the delivery standard and 99% were delivered by the following day. Specifically in relation to the quarter ended 30 September 2006, it states that 96.3% of letters delivered in Western Australia were delivered on time and 99.2% were delivered by the following day.

126 The annual report includes a report of monitoring of mail delivery times by Research International, based on what is described as a 'properly prepared, statistically valid sample of approximately 302,175 test letters'. Research International states that the monitoring showed that Australia Post delivered 96.3% of all letters early or on time, and 99% of letters were delivered on time or not more than one day after the due delivery date. The Research International monitoring was itself reviewed by Deloitte Touche Tohmatsu which stated that nothing had come to its attention that would suggest the results reported by Research International do not fairly represent the performance of Australia Post's domestic letter service for the year ended 29 June 2007.

127 It was submitted on behalf of the appellant, first, that the statistics given in the annual report do not establish that a letter posted in the metropolitan area of one capital city to the metropolitan area of another capital city would necessarily be delivered within three working days. Even on the basis of a 99% success rate, given the very large volume of mail involved a significant amount of mail did not reach its capital city destination within three working days.

128 That much may be accepted, but it does not address the question whether the evidence established that in the ordinary course of post a letter would be delivered within three working days. The phrase 'in the ordinary course of post' does not mean that each and every letter would be delivered within the specified time, but simply that ordinarily a letter would be delivered within that time. What degree of compliance with the delivery standard is necessary to constitute 'the ordinary course of post' cannot be reduced to a hard and fast figure but in this case a figure of 99%, in my view, plainly fits that description. I should add that there was no evidence that at the relevant time there was any disruption to the postal service that might affect delivery times, such as industrial action: cf Gusdote Pty Ltd v Ashley [2011] FCA 250; (2011) 193 FCR 227.

129 Secondly, it was submitted by the appellant that the statistics lack the necessary degree of specificity; in particular, that they do not, as they would need to do, provide any information about the delivery time in the ordinary course of post between Belconnen in Canberra and Mindarie in Perth, or, at least, between Canberra and Perth. Counsel for the appellant was unable to refer to any case in which it was found that a degree of specificity of such a nature was required and I do not accept that it was required.

130 The effect of the statistical evidence contained in the annual report was that in the ordinary course of post a letter posted from any location in the metropolitan area of one capital city would be delivered to any location in the metropolitan area of another capital city within three working days. It was not disputed by the appellant that Belconnen is in the metropolitan area of Canberra or that Mindarie is in the metropolitan area of Perth. There was nothing to suggest that in terms of capital city metropolitan area mail delivery, Belconnen or Mindarie was exceptional in any relevant respect and no reason was advanced why, in the ordinary course of post, a letter passing between those two locations might take longer than the normal delivery time of two (or at most, three) working days.

131 Thirdly, the appellant contended it was arguable that for the purposes of s 29(1) of the Acts Interpretation Act, the appellant had shown that the DPN was not delivered in the ordinary course of post; that is, that 'the contrary [was] proved'. In support of that contention, counsel for the appellant referred to three passages in the appellant's affidavit. They were as follows:

12. The first time I became aware of the existence of the [DPN] was when I received the facsimile from the [Deputy Commissioner] on 1 September 2006.

…

14. On 16 September 2006, I was personally served with a copy of the [DPN].

…

18. Based upon the response to the FOI request, I believe that the [Deputy Commissioner] may have posted the [DPN] to me on 23 August 2006. However, I did not receive the [DPN] in the mail. The first time I became aware of the existence of the [DPN] was when I received the facsimile from the [Deputy Commissioner] on 1 September 2006.

132 There is, however, a clear distinction between delivery of a letter to a particular place and the receipt of the letter by a particular person. It was accepted (correctly) by counsel for the appellant that if delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of post: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 96 - 97.

133 Counsel for the appellant argued that evidence of non-receipt was nevertheless relevant to establishing non-delivery and was sufficient in this case to establish an arguable case of non-delivery. I do not accept that. While evidence that a document was not receivedby a person may be relevant to establishing non-delivery to a particular place and, taken together with evidence of other relevant circumstances, may permit a proper inference of non-delivery to be drawn, the difficulty for the appellant is that the evidence in this case did not go beyond evidence that the DPN was not received by the appellant.There was no evidence capable of proving that it was not delivered to his address. There was, for instance, no evidence as to who was occupying the premises at the address at the relevant time or as to what happened to mail after it was delivered to the address, including whether there was any system or routine for collecting the mail and who had access to it.

134 That is to be contrasted with a case such a Scope Data Systems, upon which the appellant sought to place some reliance, where it was found that a letter had not been delivered on the day on which it would have been delivered in the ordinary course of post, there being evidence that the recipient's post office box had been checked several days after that day and the letter was not in it. The letter was found in the post office box upon a further check several days later again. In other words, there was evidence not merely that the letter was not received by the addressee but that it was not delivered to the address. That is quite different to the present case.

135 In the circumstances, the evidence of non-receipt of the DPN by the appellant was incapable of establishing an arguable case that the DPN was not delivered to the appellant's address.

136 It follows that, pursuant to s 29(1) of the Acts Interpretation Act, the DPN was deemed to have been delivered to the appellant on or before 28 August 2006. The administrator was therefore appointed more than 14 days after the DPN was given to the appellant. Accordingly, the penalty was not remitted and the amount of it remained a debt due and owing to the Commissioner.

137 The appeal should be dismissed. In light of that conclusion, grounds 2 and 3 do not arise. Nevertheless, it is appropriate to say something briefly about them.

Ground 2

138 I am not persuaded the primary judge erred in concluding that the appellant had failed to provide a satisfactory explanation for the delay in applying to set aside the default judgment.

139 The default judgment was entered on 21 March 2007. The appellant says that, on or about 19 June 2007, he received a bankruptcy notice based on the judgment debt and, on 23 July 2007, a summons to attend the Federal Court on the respondent's creditor's petition in bankruptcy. He says he asked his brother to deal with the notice and summons on his behalf and his brother subsequently told him he had engaged solicitors to handle the matter. The appellant says he was not given any advice by the solicitors that he could apply to set aside the default judgment and he did not become aware that it was possible to make an application to set aside the judgment until 'several years' after judgment was entered.

140 The appellant does not, however, say that he sought such advice or that the solicitors were ever told that he disputed his liability for the debt. That is despite the fact that in his affidavit of 3 February 2014 the appellant says that when he was served with the writ he believed he was not personally liable for the penalty because the receiver had been appointed to WCS on 12 September 2006.

141 It appears from the affidavit of Mr Patrick Healy, the appellant's brother who dealt with the solicitors on the appellant's behalf, that advice was sought from the solicitors only in respect of the bankruptcy notice and creditor's petition. There is nothing to suggest that he told the solicitors the debt was disputed and it is difficult to believe that had the solicitors been instructed that it was disputed no advice would have been given that an application could be made to set the judgment aside.

142 The result was that the judgment remained unchallenged for a period of more than five years and it was not until 3 December 2012 that the appellant applied to set it aside. In the circumstances, it was open to the primary judge to conclude, as her Honour did, that the delay was inordinate and had not satisfactorily been explained. Had it been necessary to determine this ground, I would have dismissed it.

Ground 3

143 I consider, with respect, that the primary judge erred in finding that the respondent would be prejudiced by the delay. Her Honour concluded that it was likely to be difficult for the respondent to locate witnesses 'involved in the postal delivery service in August and September 2006 who would have clear recollections of procedures, dates and processes' [54]. There was, however, no evidence to that effect and, given the nature of the evidence that would be required by the respondent if the action were to go to trial, it is not evident that there would be any real difficulty.

144 Had it been necessary to determine this ground, I would have upheld it.

Conclusion

145 I would dismiss the appeal.

146 MURPHY JA: The relevant background is set out in the judgments of Buss JA and Newnes JA.

147 Counsel for the appellant accepted that if ground 1 of the appeal did not succeed, then the appeal should not succeed. It is only necessary to focus on ground 1.

148 Ground 1 concerns the proper construction and application of s 29 of the Acts Interpretation Act 1901 (Cth) (Interpretation Act), particularly against the background of s 160 of the Evidence Act 1995 (Cth).

149 Section 29 of the Interpretation Act provides:

(1) 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 effected by properly addressing, prepaying and posting the document as a letter 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.

(2) This section does not affect the operation of section 160 of the Evidence Act 1995.

150 Section 160 of the Commonwealth Evidence Act provides:

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(2) This section does not apply if:

(a) the proceeding relates to a contract; and

(b) all the parties to the proceeding are parties to the contract; and

(c) subsection (1) is inconsistent with a term of the contract.

(3) In this section:

'

working day

' means a day that is not:

(a) a Saturday or a Sunday; or

(b) a public holiday or a bank holiday in the place to which the postal article was addressed.

151 In my view, ground 1 should be dismissed for the following cumulative reasons.

152 First, a sound guide to the meaning of the words 'ordinary course of post' may be found in the judgment of Lord Esher (Davey LJ concurring) in Kemp v Wanklyn [1894] 1 QB 583:

The Post Office is the authority which, under its statutory powers, determines the ordinary course of the post - that is to say, how the letters shall be carried, and at what time they shall, as a general rule, be delivered within any particular district to the persons taken as a body who reside in that district (585).

153 Lord Esher's observations in Kemp were referred to with evident approval by Stephen J (Barwick CJ & Menzies J agreeing) in Bowman v Durham Holdings Pty Ltd [1973] HCA 55; (1973) 131 CLR 8, 14 - 15. They have also been referred to in first instance decisions, including Deputy Commissioner of Taxation v Barroleg Pty Ltd matter no 3208/97 [1997] NSWSC 428; (1997) 37 ATR 190 (24 September 1997) (Young J); Kudeweh v T & J Kelleher Builders Pty Ltd [1990] VR 701, 709 (Ormiston J).

154 Secondly, the ordinary course of post is a question of fact: Gusdote Pty Ltd v Ashley [2011] FCA 250; (2011) 193 FCR 227 [54]; Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176 [38]; Kudeweh (709).

155 Thirdly, relevantly for present purposes, the fact that would need to be proved is whether (as at the relevant date) an inference could be drawn that there existed, objectively, a time by which, as a general rule, letters posted from Belconnen in the Australian Capital Territory were delivered to the persons, taken as a body, who resided in Mindarie, Western Australia.

156 Fourthly, judicial notice may be taken of the fact that Mindarie is a suburb of Perth in Western Australia and Belconnen is a suburb of Canberra.

157 Fifthly, there was statistical evidence from Australia Post to the effect that at the relevant time, 96.3% of regular letters posted from one metropolitan area in another State or Territory in Australia to the Perth metropolitan area, were delivered within two business days after posting, and 99.2% of such letters were delivered within three business days after posting (GB 51, 59, 60, 67).

158 The appellant accepted in this appeal that the evidence was contained in a business record of Australia Post (ts 9). In addition, the evidence before the judge (GB 61 - 66) included a report from the Auditor-General, a 'survey certification' report from Research International, and a further 'survey certification' report by Deloitte. It is unnecessary for present purposes to set out the detail of those reports. It is sufficient to say that when each is read as a whole, it supports the inference that the Australia Post business record provides a fair and accurate representation of its performance in the delivery of mail. Although the reports to some extent contain references to qualifications which are perhaps not unusual in reports of this nature, the overall effect of this evidence is that it confirms the reliability of the Australia Post material.

159 It was open to the judge to infer from the evidence that as a general rule, it took Australia Post, at most, three business days for letters posted in Belconnen to be delivered to persons, taken as a body, resident in Mindarie.

160 The appellant's argument to the effect that the evidence was inconclusive in this regard, and that there was an arguable case that the respondent had not proved service within the requisite time period, should be rejected.

161 The first argument advanced by the appellant was that the evidence effectively only disclosed periods of delivery between Canberra and Perth, and not suburbs within each of those two cities. I am not persuaded that the judge erred in this regard. The evidence referred to delivery 'between metropolitan areas of capital cities' (GB 51, 60). That would include Belconnen in Canberra and Mindarie in Perth.

162 The second argument advanced by the appellant was that even at the rate of 99.2% delivery of all letters within a period of three business days, given the overall volume of postal material, there nevertheless remained a very large number of letters that would fall outside that delivery period. That may be so. It may also be, generally speaking, that where the evidence is to the effect that a percentage of the total volume of letters delivered to a district are delivered within a particular time, then the lower that percentage, the less ready the court may be to infer that the evidence supports a finding that as a general rule letters are delivered to that district within that time. It is unnecessary to consider for present purposes whether any lesser percentage would be inconsistent with the inference that there existed, objectively, a general rule for the time of delivery of letters to Mindarie posted from Belconnen. For present purposes, it is sufficient to observe that if 99.2% of letters were delivered within three business days, that is sufficient to enable an inference of a general rule to be drawn, and that the remaining 0.8% of letters fall outside the general rule.

163 The appellant next contended that s 160 of the Commonwealth Evidence Act applied and that as a result, it was presumed that the relevant letter was received on the fourth working day after having been posted. I would reject that submission. Section 29(2) of the Interpretation Act provides in effect that s 29(1) does not 'affect the operation' of s 160. In other words, it allows s 160 of the Commonwealth Evidence Act to operate according to its terms, where it applies, but, importantly, s 29 is not expressed to be 'subject to' the operation of s 160. Thus, where there is proof as to the time of delivery in the ordinary course of post, and no proof that the letter in question was not delivered within that time, the deeming effect of s 29(1) is fully engaged, and is not made subservient to the operation of s 160. The result is that there is then no scope for the application of the presumption in s 160 of the Commonwealth Evidence Act on the question of when service was effected, because that question has been answered by reference to s 29(1). It should be noted in this context that both parties referred in their submissions to the observations of White J in Scope Data Systems [38] - [40]. There was some dispute about the meaning and effect of his Honour's observations. It is sufficient to note that, relevantly for present purposes, I would not understand the burden of his Honour's observations to be materially different from that outlined above.

164 A final observation may be made about s 160(1) of the Commonwealth Evidence Act. Insofar as it refers to a presumption as to when a postal article is 'received' at an address, the reference to receipt at that address, by necessary implication, imports the notion of delivery to that address. Receipt at, or delivery to, a postal address may, however, be different from actual receipt by the intended recipient of a letter: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 97; Scope Data Systems [49].

165 Finally, the appellant contended that there was an issue as to the date of delivery because s 29(1) of the Interpretation Act only deemed service to have been effected in accordance with the ordinary course of post 'unless the contrary is proved', and the appellant, by affidavit dated 5 November 2012 (some six years after the events in question) deposed in support of his application to set aside judgment:

12. The first time that I became aware of the existence of the [notice] was when I received the facsimile from the [Deputy Commissioner] on 1 September 2006.

…

14. On 16 September 2006, I was personally served with a copy of the [notice].

…

18. Based upon the Response to the FOI request, I believe that the [Deputy Commissioner] may have posted the [notice] to me on 23 August 2006. However, I did not receive the [notice] in the mail. The first time that I became aware of the existence of the [notice] was when I received the facsimile from the [Deputy Commissioner] on 1 September 2006.

166 Four observations may be made about that evidence. First, contrary to the appellant's submissions, the sending of a faxed copy of the notice on 1 September 2006, and personal service of a copy of the notice on 16 September 2006, could not, in the circumstances, reasonably be treated as an admission by the respondent of earlier non-delivery of the original notice. Secondly, the substantive focus of the evidence is on the state of mind of the appellant, ie, the first time he became 'aware' of the notice. His state of mind is irrelevant. Thirdly, there is a lack of cogency in the evidence given its vagueness and generality. The appellant did not depose, for example, to whether he, or any other person, was responsible for, or had the practice of, collecting or opening the mail at the relevant postal address; nor does he give any details of his conduct in relation to mail, or the practice that existed at the relevant time. Fourthly, even if the evidence were read as indicating that he did not personally receive the notice, as noted earlier, delivery may be different from actual receipt by the intended recipient. In Fancourt, the High Court said:

The appellants swore that they did not receive the notices but it was not contended that this amounted to proof that they were not served with them. Such a contention would have been difficult having regard to the fact that there is nothing to show that the notices were not delivered as addressed.

…

In the present case, the notices were not returned undelivered and there was no other circumstance which suggested that they did not reach their destination.

As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery (95), (97).

167 Those observations are equally applicable to this case.

168 The appeal should be dismissed.

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