Joseph Guss v Eddie Storace (Australian Taxation Office)
[2018] VSCA 121
•14 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0091
| JOSEPH GUSS | Applicant |
| v | |
| EDDIE STORACE (AUSTRALIAN TAXATION OFFICE) | Respondent |
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| JUDGES: | McLEISH and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 May 2018 |
| DATE OF JUDGMENT: | 14 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 121 |
| JUDGMENT APPEALED FROM: | [2017] VSC 396 (Digby J) |
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PRACTICE AND PROCEDURE – Service – Service by post – Applicant found guilty in Magistrates’ Court of offences against Taxation Administration Act 1953 (Cth), s 8C – Finding of guilt required proof of service of notice of requirements under Income Tax Assessment Act 1936 (Cth), s 162 – Internal mail collection system – Letter to applicant placed in mail tray – Contents of tray given to Australia Post driver – Staff member unable to say whether letter to applicant included – Whether service by post proved – Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869; Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262; Re Harris Scarfe Ltd (recs and mgrs apptd) (in liq);Dwyer v Cannon Australia Pty Ltd [2007] SASC 100; Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126; Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216 distinguished.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | -- |
| For the Respondent | Ms R J Sharp | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
McLEISH JA
HARGRAVE JA:
On 20 October 2016, the applicant was found guilty in the Magistrates’ Court of four charges under s 8C of the Taxation Administration Act 1953 (Cth), in that he failed to give a document to the Commissioner of Taxation, when and as required under or pursuant to a taxation law to do so. The Commissioner had alleged that he had required the applicant under s 162 of the Income Tax Assessment Act 1936 (Cth) to give him income tax returns for the four years from 1 July 2009 to 30 June 2013, and that the applicant had not done so within the time required.[1]
[1]The applicant filed the returns in question at a later date.
In respect of each charge, the charge-sheet relevantly averred, pursuant to s 8ZL of the Taxation Administration Act 1953 (Cth), that a notice in writing dated 5 March 2014 requiring the applicant to give the Commissioner the relevant returns was served on the applicant ‘by posting it on 5 March 2014 by prepaid letter post to the [applicant’s] address for service namely PO Box 454, Collins Street West, Vic 8007’. The applicant contended before the magistrate that the respondent, who was the informant in the Magistrates’ Court, had failed to prove service upon the applicant of the notice in question.
After the magistrate upheld the charges, the applicant appealed to a judge in the Trial Division under s 272 of the Criminal Procedure Act 2009 on a question of law. That appeal was unsuccessful and the applicant now seeks leave to appeal against the judge’s decision in this Court.
The question sought to be agitated on the appeal is, in short, whether the magistrate erred in law in finding that the respondent had proved service of the notice. For the reasons that follow, there can be no question that the judge was correct to find that it was open to the magistrate to reach the conclusion she did. On that basis, leave to appeal must be refused.
It is necessary briefly to set out the evidence upon which the respondent relied in the Magistrates’ Court. It may first be noted that, by reason of s 8ZL of the Taxation Administration Act 1953 (Cth), the averments in the charge sheets are ‘prima facie evidence’ of the matters averred. However, the matter did not proceed solely on the basis of this provision. The respondent relied on the evidence of three witnesses to seek to establish affirmatively that the notice had been served. It is therefore not necessary to say anything further about s 8ZL.
The evidence of the three witnesses called by the respondent was as follows. First, a retired taxation office employee, Ms Angela Bennett, gave evidence that on 5 March 2014, while still employed at the taxation office, she prepared a draft notice to the applicant requiring him to give the Commissioner the relevant returns under s 162. She stated that she obtained the address for the notice from the taxation office records system at that time. She then forwarded the draft notice to Mr Matthew Briggs within the same office for his approval and further attention. On 2 May 2014 she checked on the system and found that the notice had not been returned to sender.
Mr Briggs gave evidence that he received and approved the draft notice prepared by Ms Bennett. He printed the notice, folded it and placed it in a window-faced envelope which he then sealed. He placed the notice in the internal mail tray in the office in order for it to be posted. A notice dated 5 March 2014 requiring the applicant to give the Commissioner the returns in question was tendered through Mr Briggs.
Neither Ms Bennett nor Mr Briggs had any personal knowledge of what happened to the letter after Mr Briggs placed it in the mail tray. For that matter, Ms Bennett had no personal knowledge that the letter had been placed in the mail tray. However, Ms Julie Anne Llewellyn gave evidence about her general mail duties when she had been responsible for external mail at the Geelong taxation office. In particular, she gave evidence as to a daily afternoon mail run in which she collected mail from three collection points in the office. After collecting the mail in the afternoon, she would turn over the outgoing mail tray so that all staff would know that the mail had been cleared for the day, leaving a note on the tray instructing staff not to leave mail there for that reason.
Ms Llewellyn gave evidence that the Australian Taxation Office had a charge account with Australia Post. She said that no postage stamps were placed on outgoing letters. Instead, envelopes were imprinted with the words ‘Postage Paid Australia’ in a square on the envelope.
Several documents were tendered through Ms Llewellyn. First, a mail delivery check sheet for the period including 5 March 2014 was tendered to show that Ms Llewellyn had collected the outgoing mail on that date. Secondly, a document entitled ‘Daily Mail Statistics’ was tendered, bearing the date 5 March 2014. The document indicated that 22 ordinary standard letters had been charged to an account. Ms Llewellyn stated that the document indicated how many letters she had received on that day from the mail stations. Thirdly, a ‘mailing statement’ bearing the logo of Australia Post was tendered, indicating that 22 ordinary small letters had been ‘lodged’ on 5 March 2014. It was Ms Llewellyn’s evidence that, after this document was generated, she would give the mail to the Australia Post driver who would collect it from the taxation office.[2]
[2]Evidence was also given of the sending of a copy of the notice to another address and the sending of a letter advising that enforcement action was to be taken. However, these matters were not critical to proving the service alleged in the charge-sheets.
The magistrate stated that she was ‘comfortably satisfied that the prosecution has made out the elements of the charges brought against [the applicant] to the requisite criminal standard’. She found that Ms Bennett had prepared a final notice to lodge income tax returns for the four years in question. She accepted Ms Bennett’s evidence that the notice was addressed using the address of the applicant on the taxation office database which she had accessed. The magistrate also accepted that Mr Briggs had approved the notice, placed it in an addressed prepaid envelope and then placed it in an outgoing mail tray adjacent to his office on 5 March 2014. She accepted that Ms Llewellyn had collected the mail from the designated outgoing mail trays and lodged that mail with an Australia Post employee who attended at the office and collected the mail for processing and delivery by Australia Post. She found that the envelopes were prepaid as to postage and were not returned to the taxation office undelivered. The magistrate also relied on the fact that it was averred that the notice was served and that she therefore had before her prima facie evidence of that fact. She stated that there was no evidence before her sufficient to cast any doubt, let alone to rebut, the prima facie evidence that the notice was served.
In conclusion, the magistrate said:
The placing of articles in an outgoing mail tray which there is no dispute Mr Briggs did, with the envelopes containing the final notice, the collection by Ms Llewellyn, the person authorised to do [so,] and their delivery to the person authorised by Australia Post for their collection constitutes posting in my view. Accordingly service of the final notice has been effected as required.
Accordingly, the magistrate found the charges proven.
In this Court, there was some debate between the parties as to the test to be applied in order to determine whether the magistrate made an error of law for the purposes of s 272 of the Criminal Procedure Act 2009 in reaching the above conclusion. The respondent submitted that the applicant was essentially arguing that there was no evidence upon which the findings could be made.[3] The applicant submitted that it was necessary for him to show only that it was not open for the magistrate reasonably to have come to the conclusion she did.[4]
[3]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356 (Mason CJ); O’Connor v Bradshaw (2015) 70 MVR 31, 43 [32].
[4]Taylor v Armour & Co Pty Ltd [1962] VR 346, 351–2; Young v Paddle Bros Pty Ltd [1956] VLR 38, 41; R v Hopkins (1915) 20 CLR 464, 475 (Isaacs J).
It is not necessary to resolve the difference between these formulations, if indeed there is any practical distinction between them. That is because, whichever test is applied, the applicant has failed to establish any error. However, bearing in mind that the authorities upon which the respondent relied involved judicial review rather than appeals on a question of law under s 272, it is preferable to assume that the applicant’s test applies.
The applicant relied heavily on the fact that Ms Llewellyn was unable to give evidence that a letter addressed to the applicant was among the items which she collected from the mail tray on 5 March 2014, or the items which she subsequently handed to the Australia Post driver. Equally, there was no evidence that any specific amount had been paid for such a letter to be mailed. He submitted that these features amounted to gaps in the evidence which, by virtue of previous authorities concerning service by the posting of documents, ought inevitably to have led the magistrate to find that service had not been proved.
In particular, reliance was placed on a statement by Brereton J in Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd,[5] that:
[5][2006] NSWSC 1216 [12] (‘Northumbrian Ice Cream’).
Proof of service by post requires, at least:
·proof that the envelope bore the correct name and address;
·proof that the envelope contained the relevant document to be served;
·proof that the envelope bore the correct cost of postage; and
·proof that the envelope was placed in the post.
The applicant made reference to several other authorities in which both evidence that a letter had been posted as a letter by being dropped into a post box or deposited at a post office and evidence that the correct postage had been paid was said to be required in order to establish service by post.[6] It was submitted that the requirements set out in these cases were more stringent than those identified by the judge in the Trial Division, extracted in the paragraph below, and that the cases also showed that evidence that merely established a ‘system’ for the dispatch of mail was inadequate.
[6]Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869 (‘Brown v Bluestone’); Re Harris Scarfe Ltd (recs and mgrs apptd) (in liq); Dwyer v Cannon Australia Pty Ltd [2007] SASC 100 (‘Dwyer’); Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126 (‘Pearlburst’); Re Green Global Technologies Ltd;Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262 (‘Grant Thornton’).
In his reasons, the judge stated, after referring to these authorities:[7]
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.
[7]Guss v Storace (Australian Taxation Office) [2017] VSC 396 [75].
It can be seen that this formulation is slightly different from those in the cited authorities, in so far as it allows for the possibility of there being ‘some other basis’ upon which it can be concluded that postage has been paid and states that the envelope need only be ‘placed into the custody’ of Australia Post without necessarily being placed in a post box or taken to a post office.
In our opinion, the authorities upon which the applicant relies are of no assistance to him. The question whether the notice in question was served upon the applicant by post was a question of fact for the magistrate to determine. Previous cases decided upon different facts, and in respect of different statutory regimes, may be of use in guiding the court as to the steps that may be taken in the course of service by posting a letter and in respect of which proof is required.[8] However, the discussion in those cases cannot be taken as prescribing binding requirements of proof in every case. In particular, the cases in question do not address the possibility of postage being paid other than by stamping or individually franking an envelope. Nor do they address the possibility of placing documents into the post other than at a post box or at a post office. The judge rightly allowed for these possible modes of achieving the posting of a letter in his above summary.
[8]The parties were agreed that service of notice of a requirement under s 162 of the Income Tax Assessment Act 1936 (Cth) was capable of being effected by post. Some reference was made in argument before the judge to statutory provisions as to service by post (in particular to s 29 of the Acts Interpretation Act 1901 (Cth) and s 49 of the Interpretation of Legislation Act 1984), but those provisions are premised on there being a statutory provision authorising or requiring service by post and it was not suggested by either party that this was the case here. Even if it were to be suggested that there was any specific requirement of those provisions that was not met, the provisions are permissive rather than mandatory as to how posting may be effected and proved, and the parties placed no reliance on them before us. Similarly, the parties placed no reliance on s 160 of the Evidence Act 2008, which provides for a presumption of receipt by a certain time of articles sent by prepaid post.
In addition, the cases upon which reliance was placed all reveal significant gaps in the attempt of proof which are not revealed in the present case. So, in Northumbrian Ice Cream, there was no evidence of the address on the envelope. Nor was there evidence of posting beyond a bald statement that the envelope was ‘caused … to be placed with [the] outgoing mail’.[9] In Brown v Bluestone there was, similarly, evidence only of an ‘outgoing mail register’; there was no evidence of an envelope or anything being placed in it, nothing about how it was addressed or about any stamp or franking, and nothing about it being handed over at a post office or deposited into a post box.[10] In Dwyer, there was evidence as to a system for posting letters but no evidence from the assistant whose responsibility it was to do the actual posting and therefore no evidence that the letter in question had actually been posted; nor was there any record to prove postage — merely stating that office procedures were followed was insufficient.[11] Again, in Pearlburst the evidence was of a solicitor having caused the letter to be sent; there was no evidence of an envelope or its contents, or of any stamping or franking of an envelope, and no evidence that anyone lodged any envelope at any post office or in any post box.[12] The same position applied in Grant Thornton.[13]
[9]Northumbrian Ice Cream [2006] NSWSC 1216 [6], [14].
[10]Brown v Bluestone [2010] NSWSC 869 [9], [14].
[11]Dwyer [2007] SASC 100 [17]–[19].
[12]Pearlburst [2007] NSWSC 1126 [24].
[13][2009] QSC 262.
The position here is entirely different. There was evidence from Mr Briggs that he placed the notice in an envelope with a window through which the address could be seen. He placed it in an outgoing mail tray. Ms Llewellyn stated that the office used envelopes marked ‘paid’ and that postage was paid on a charge account with Australia Post. She collected all the letters in the mail tray and recorded their number for charging purposes before giving them to an Australia Post driver for delivery. Although Ms Llewellyn could not say that the contents of the mail tray included an envelope addressed to the applicant, Mr Briggs could, and did. Not only was it open to the magistrate to infer from this evidence that postage had been effected, the conclusion was inescapable.
The cases upon which the applicant relied do not stand for the proposition that proof of postage requires proof that an envelope bore a stamp or that it was franked. The question did not arise for consideration in those cases and any such requirement would be entirely arbitrary in circumstances where there are alternative means of payment for postal services. Equally, the cases did not decide that mail can only be posted at a post office or by means of a post box. Again, it would make no sense to exclude the prospect of proof of posting by the handing of mail to a postal employee in the course of their employment at a location in the delivery chain other than a post office. To hand mail to a driver in the course of that person’s collection of mail for the purpose of delivery is self-evidently as effective to achieve postage as handing the mail to an employee over a counter at an earlier stage in the delivery process.
The applicant submitted that, since Ms Llewellyn could not say that an envelope addressed to him had been among the items she collected or those that she posted on 5 March 2014, the respondent had not excluded the possibility that the envelope sealed by Mr Briggs and placed by him in the outgoing mail tray had subsequently been dropped or otherwise lost after he did so, in the course of the process described by Ms Llewellyn. Acknowledging that no such possibility had been raised with Ms Llewellyn in cross-examination, the applicant submitted that the onus was on the respondent to prove service and that this included excluding such possibilities.
It is true that the respondent bore the onus of proving service. But the evidence he led sufficed to do so. In those circumstances, it was for the applicant to seek to displace that evidence, or to adduce evidence undermining the inferences which the respondent sought to draw from it. It was also incumbent on the applicant to put to the witnesses factual possibilities which he wished to raise by way of submission. But even leaving these considerations to one side, the possible breaks in the chain of evidence to which the applicant pointed rise no higher than speculation. They do not justify a conclusion that the magistrate could not reasonably have found service proven to the requisite standard on the evidence before her.
For these reasons, service by post was properly found proven and the applicant has established no error on the part of the magistrate. The proposed appeal has no real prospect of success and leave to appeal should be refused.
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