Deputy Commissioner of Taxation v. Vermont Chemical and Seed Pty. Ltd.
Members:Murphy J
Tribunal:
Supreme Court of Victoria
Murphy J.: This was the return of an Order Nisi to review a decision of the Magistrates' Court at Melbourne constituted by Mr. Proposch, Stipendiary Magistrate, exercising Federal jurisdiction on the 15th day of December of 1975, whereby he dismissed an information that the defendant, being a group employer, did on 8th July, 1975 fail to pay to the Deputy Commissioner of Taxation the sum of $2,112.91, being the amount of deductions made from the wages of employees in respect of the month of June 1975 and did further on 9th September, 1975 fail to pay to the Deputy Commissioner of Taxation the sum of $2,165.16 being the amount of deductions made from the wages of employees in respect of the month of August 1975 contrary to the provisions of sec. 221F(5)(a) of the Income Tax Assessment Act 1936 as amended. (See as to Joinder of Charges sec. 221W of the Income Tax Assessment Act 1936-1973.)
The order nisi was granted by Master Collie on the 15th day of January of 1976 on some eight grounds but as they were not all argued by the informant's counsel before me I do not think I need to enumerate all of them. Mr. O'Bryan, one of Her Majesty's Counsel, who, with Mr. Lopes, appeared for the informant Deputy Commissioner of Taxation, stated that he relied principally upon grounds 2, 4, 6, and 7. These grounds read:
``2. That there was no or insufficient evidence that the provisions of the said section 221F(7) had been invoked by the
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Informant in respect of either or both of the alleged offences.4. That the Stipendiary Magistrate misdirected himself as to the onus of proof which lay on the Defendant, that the provisions of the said section 221F(7) had been invoked by the Informant in respect of either or both of the alleged offences.
6. That on the evidence the Defendant ought to have been convicted on each of the offences alleged in the information.
7. That the Stipendiary Magistrate should have found as a matter of law that the alleged offences were committed and completed by the 9th day of July 1975 and the 9th day of September 1975 respectively.''
Mr. Sweeney of counsel appeared for the defendant company, Vermont Chemical and Seed Pty. Ltd. He relied upon the terms of an affidavit which was sworn on 31st March, 1976 by Hugh Alexander Scott-MacKenzie to which affidavit was exhibited a copy of handwritten notes of the proceedings which the deponent swore ``substantially reproduces what took place at the hearing''. (See Exhibit ``B'' to the said affidavit.)
At the outset Mr. O'Bryan stated that, for the purposes of these proceedings, the informant was content to accept the material set out in the said Exhibit ``B'' as an accurate account of what happened in the court below and, accordingly, the case was conducted before me on that basis.
In the course of his submission, Mr. O'Bryan applied for leave to tender further evidence pursuant to sec. 160 of the Justices Act, but, having heard detailed argument from both sides on this application, and in the exercise of my discretion, I refused the application. I delivered my reasons for doing so during the course of the hearing. I there set out the material piece of cross-examination which apparently led the Magistrate to dismiss the information. It is contained at pages 9, 10 and 11 of the said Exhibit ``B'' in some thirteen questions and answers given by the witness Leonard Gladstone Davies, an employee in the office of the Deputy Commissioner of Taxation holding the office of Senior Inspector. He said in examination-in-chief that on 8th October, 1975 he called at the registered office of the defendant and interviewed the Managing Director, Raymond Joseph Le Cerf, who signed a statement. This statement was Exhibit ``C'' to the affidavit of Kevin Francis Skahill, sworn 15th day of January 1976, and was apparently tendered in evidence before the Magistrate. The managing director admitted that the defendant was a company registered as a group employer under Group No. 54942 and had been so registered for and during the period 1st July, 1975 to 30th August, 1975. Le Cerf admitted that the amount of tax instalment deductions made from the wages paid to the company's employees during the months of June 1975, July 1975, August 1975 and September 1975 were $2,112.91, $2,453.56, $2,165.16 and $2,016.93 and ``that these amounts were paid on 10th September 1975; the second amount was mailed on or about 19th September 1975 and the last two amounts are outstanding.''
The managing director was then asked for an explanation and he said, ``We have had bad debts totalling $20,000 and our inability to collect our debts because of the poor state of the horticulture and agriculture industries.'' He said that the money which should have been ``remitted to the Department'' was with the debtors and that the outstanding money will ``be remitted to the Department'' - ``by arrangement with the Department.''
I do not intend to repeat the cross-examination.
It is perfectly clear that the pro forma statement, Exhibit ``C'', and Mr. Davies throughout his evidence used the words ``the Department'' and the word ``Commissioner'' without discrimination to mean one and the same thing. Mr. O'Bryan has mounted a submission that because of the use of the word ``Department'', there is no evidence in the case which could justify a conclusion by any Magistrate that the Commissioner referred to in sec. 221F varied any of the requirements of subsec. (5) of sec. 221F. He based this on a submission that the Department was a different entity altogether from the Commissioner.
In my opinion on the evidence in the case it was perfectly reasonable for all concerned (the Magistrate included), particularly having regard to the pro forma printed terms of Exhibit ``C'', to Mr. Skahill's affidavit and Mr. Davies' evidence-in-chief and in cross-examination, to regard references to ``the
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Department'' as references to the ``Commissioner''. The words ``Commissioner'' and ``Department'' are used in the said printed form, which is Exhibit ``C'', referring to one and the same person and, indeed, the only reference to the ``Commissioner'' himself is contained in question 6 of Exhibit ``C''.Although Mr. Sweeney has submitted to the contrary, it appears to me from the cross-examination of Mr. Davies by Mr. Sweeney that it was after the due date (whatever that date was) for the payment of the instalments had passed that an arrangement was made which was confirmed by letter that the money, the subject of the informations, would be paid at $750 per month and that a letter confirming the arrangement was written at some time before the issue of the information. It was, in my opinion, open to the Magistrate so to find and it appears from his reasons for judgment that he probably did so find.
The Magistrate found also that there was some evidence of a variation of the requirements of sec. 221F(5)(a) but that the evidence was insufficient to enable him to say beyond reasonable doubt (as he put it) what the terms of the variation were. Nor did the Magistrate find when the variation was made. In his reasons he stated that the Commissioner ``has power to make the variation retrospective'' and he also said, ``It does not only relate to future payments.''
I gather from these statements that the Magistrate acceded to Mr. Sweeney's submission that the power of the Commissioner pursuant to sec. 221F(7) is not limited to a power to vary the date of and the amount of prospective payments of instalments yet to fall due under sec. 221F(5)(a) but extended to circumstances where instalments were already overdue and had not been paid by the time stipulated under sec. 221F(5)(a). This ruling was challenged before me by the informant.
Subsection (7) of sec. 221F does give to the Commissioner very wide discretionary power. It reads as follows:
``The Commissioner may by notice in writing served on a group employer vary in relation to that group employer in such instances and to such extent as he thinks fit any of the requirements of sub-section (5) of this section and that group employer shall comply with those requirements as so varied.''
The power is to be exercised by the Commissioner unilaterally; that is to say, power to vary is independent of agreement or arrangement with the group employer.
Mr. O'Bryan informed me that as a matter of practice the Commissioner does, in some instances, exercise his power so as to require group employers to pay instalments on a date earlier that that set out in subsec. (5)(a), as well as in other circumstances extending the due date for the payment of the instalments.
It is an interesting question whether a power to ``vary'' the requirements of a statute, a breach of which constitutes an offence punishable by imprisonment, includes the power to stipulate more stringent requirements than those laid down in the Act itself. A breach of the requirements of subsec. (5)(a), as varied by the Commissioner pursuant to subsec. (7), is similarly punishable by imprisonment. See subsec. (7), subsec. (11) and subsec. (12) of sec. 221F.
On its face and in its context this power appears to me to be a power to ameliorate and not to make more stringent the requirements of the Act itself, but I do not need to enter upon further discussion upon this matter in this case, nor to decide it. Here, the simple question is whether the Commissioner, under sec. 221F(7), has power to vary the requirements of sec. 221F(5)(a) unilaterally and retrospectively so as to stipulate, as it were, that facts which have already occurred and amount to an offence, shall be no offence.
It seems clear that the Commissioner's power to administer the Act (see sec. 8), and to exercise a great number of discretionary powers extends, in many instances, so as to entitle him to abandon what is referred to in the Act as a penalty, namely, the ``excess'' over certain specified sums. (See, for example, sec. 223, subsec. (2), and sec. 234.)
``Additional tax'' is encompassed by the word ``penalty''. See
Jackson v. Gromann (No. 2) (1948) V.L.R. p. 408, 409.
McGovern v. Hillman Tobacco Pty. Ltd. (1949) 4 A.I.T.R. 272.
The word ``penalty'' where used in sec. 233(2) and sec. 234 must, I think, mean the penalty set out in the Act and not the penalty adjudged by
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the Court or a Judge. (See sec. 235.) This power to waive the excess which is given to the Commissioner is a power analogous to that given to the Controller by the Customs Act. (See sec. 245, andChristie v. Permewan Wright & Co. 1 C.L.R. p. 693, 697-8.) But it would be an extraordinary power if the Commissioner could, after an offence had been committed against the Act, by his unilateral decision, absolve, as it were, the offender from that offence by subsequently varying the requirements of sec. 221F(5)(a) and laying down new requirements, the breach of which, in turn, is made an offence by the Act itself.
I am told by counsel that they have found no authority precisely in point, and having regard to the research that has clearly gone into this matter, I am, I believe, safe in assuming that there is none. In the absence of such authority I, myself, should be reluctant to find that the Commissioner had such a power, unless it was clearly spelt out in the Act itself.
In my opinion, sec. 221F(7) clearly does give the Commissioner power by notice in writing served on a group employer before the due date for compliance with the requirements of sec. 221F(5) has arrived, to vary to such extent as he thinks fit any of the requirements of subsec. (5). This is a discretionary power vested in the Commissioner himself.
In other contexts it has been stated that the Commissioner cannot, by his conduct, alter the effect of the Act of Parliament, for no estoppel can be created against the operation of the Act. See
F.C. of T. v. Wade, 84 C.L.R. p. 105, per Kitto J. at p. 117.
It is also clear that the Commissioner's duty is to obey the law, just as it is the taxpayer's duty to do so. See
Maritime Electric Co. v. General Dairies Ltd. (1937) A.C. p. 610, 620-1.
Similarly, it is not arguable that there is any principle of law which precludes a person such as the Commissioner from ``alleging that the invalidity of that which the statute has, on grounds of general public policy, enacted shall be invalid.'' See In
re a Bankruptcy Notice (1924) 2 Ch. p. 76, per Atkin L.J. at p. 97.
But, these references from the foregoing cases may tend to beg the question which arises here.
Mr. Sweeney referred me, in support of his argument, to Professor Glanville Williams' treatise on the Criminal Law, chapter 19, in which the following statement appears under the heading ``Consent must be before the Act. Undertaking not to prosecute'':
``There is an exception of doubtful scope where a binding promise may be made not to prosecute. This is where the crime does not amount to a felony, and the circumstances are such that the promisor has a right of action for damages in respect of the crime; here, it is said, he may validly compromise not only his civil action but a criminal prosecution.''
I have considered the cases of
Keir v. Leeman (1846) 115 E.R. at p. 1324 and
Fisher v. Apollinaris Co. L.R. (1875) 10 Ch. App. at p. 303, to which the learned author refers.
However, I do not see that a consideration of these cases or of this doubtful exception throws any helpful light on the construction to be given to sec. 221F(7).
Mr. O'Bryan submitted, as a generalisation, that it is beyond the power of the Gods to alter the past, but this, though no doubt true, would not prevent Parliament from enacting that the Commissioner has the right to expunge, retrospectively, a breach of the Act, if Parliament chose to give him such a power.
The prior history of what is now sec. 221F(7) appears to me to support the view that the power given is a power to vary prospectively, and not retrospectively. Section 221F(7) has its origin in 1940 in the Income Tax Assessment Act (No. 2) sec. 15, which added Division 2 of Part VI of the Income Tax Assessment Act 1936-1940. Section 221D, insofar as is relevant, reads:
``Where the Commissioner so varies the amounts to be deducted, he shall notify the employer of the employee or class of employees, in writing, of the variation, and the employer shall... thereafter make deductions... from the salary or wages payable to the employee or employees in accordance with the amounts so notified.''
The power to ``vary'' is, itself, ambiguous, for in different statutes the word ``vary'' has been given different meanings according to its context. (See, for example, some of the cases collected in Young v. Young (No. 2) (1962) p. 218.)
In my opinion, therefore, the power of the Commissioner is a power simply to vary prospectively, and not to vary retrospectively.
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Mr. Sweeney, however, also submitted that in any event the Magistrate could have entertained doubts whether a variation in the terms of sec. 221F(7) had occurred before the due date stipulated by sec. 221F(5)(a). It is possible that the Magistrate could have been in doubt about this matter, but, if so, he did not decide the issue, for, as I read his reasons, he found that even a retrospective variation was sufficient to avoid the consequences of any earlier failure to pay in accordance with sec. 221F(5)(a). Allied to this point, Mr. Sweeney submitted that there was no evidence before the Magistrate that the provisions of sec. 221F(5)(a) had not been varied pursuant to subsec. (7) prior to the due date, that is to say, the date set out in subsec. (5)(a).
Mr. O'Bryan, on the other hand, contended that it was not open to the Magistrate to find on the evidence that there was a variation at any time of the requirements of sec. 221F(5)(a). It was his submission that the onus of proof of any such variation rested on the defendant, and that the provisions of subsec. (7) were in the nature of an excuse, proviso, exception, exemption or qualification of subsec. (5)(a), the onus of proof of which rested not on the prosecution, but on the defendant.
He referred me in support to the principles expressed in
Barritt v. Baker (1948) V.L.R. p. 491 to p. 495;
Harris v. MacQuarie Distributors Pty. Ltd. (1967) V.R. at pp. 257 to 258;
Horman v. Bingham (1972) V.R. 29 at p. 33;
Everard v. Opperman (1958) V.L.R. 389 at p. 391;
Dowling v. Bowie (1952) 86 C.L.R. 136.
He relied both upon the statutory provisions of sec. 14 of the Commonwealth Crimes Act 1947-1973 and sec. 219 of the Justices Act of 1958 in Victoria as well as on the common law principles of statutory interpretation.
Having regard to the terms of sec. 221F and in particular to the provisions of subsec. (5)(a), subsec. (7) and subsec. (11) and subsec. (12), I doubt whether subsec. (7) can be considered to be an exception, exemption, proviso, excuse or qualification to subsec. (5)(a), as those words are to be understood when applying either the statutory provision or the common law principles. Subsection (7) sets out circumstances in which a particular employer is to be subject to varied requirements, a breach of which constitutes an offence. (See subsec. (11).)
To establish an offence under sec. 221F(11) an informant must prove, as I see it, that a group employer has failed to comply with a provision of sec. 221F ``which is applicable to him''; that is to say, applicable to that particular employer. Section 221F reads:
``An employer who contravenes or fails to comply with any provision of this section which is applicable to him shall be guilty of an offence.''
In my view if a charge is to be sustained against a group employer for a breach of the provisions of sec. 221F, then the informant must prove that the particular provision of sec. 221F alleged to have been breached was, at the relevant time, a provision which was applicable to the particular employer. As the provisions of subsec. (5), or the provisions of subsec. (5) as varied by subsec. (7) may be applicable to any group employer, it must be proven, in my opinion, which is applicable. (See
Atkinson v. Hanel (1954) V.L.R. p. 596.)
This, of course, would not be a matter difficult for the informant to prove, but in the present case there was no direct evidence led on the matter.
There was certainly evidence before the Magistrate, which he apparently accepted, that after the due date had passed for payment of instalments (whether as stipulated in subsec. (5)(a) or as varied pursuant to subsec. (7)) some arrangement was made for payment by monthly amounts of the instalments due and that these amounts were the subject of the prosecution.
The difficult questions to decide on this issue are:
- (1) whether there was evidence on which a Magistrate could find that a prima facie case was made out of a breach of subsec. (5)(a). (See May v. O'Sullivan 92 C.L.R. p. 654.) In other words, was there a prima facie case made out that sec. 221F(5)(a) was ``applicable to the defendant''?
- (2) if so, was a prima facie case made out that its provisions were breached?
It is clear that on 8th October, 1975 the witness Davies saw the managing director of the defendant company and had a talk with him and that Exhibit ``C'' to Mr. Skahill's affidavit was signed by the managing director on that date. There was evidence that at that time the due date (whatever it was) for the
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payment of instalments had passed. (See question 2 and 5 of Exhibit ``B'' to Mr. Scott-MacKenzie's affidavit sworn 31st March, 1976.) Whether that was sufficient to enable the inference to be drawn that the provisions of sec. 221F(5)(a) were ``applicable'' to the defendant or whether such an inference could reasonably have been arrived at by a Magistrate is the question.The due date for the payment of instalments, although passed, could, as Mr. Sweeney submits, have been some varied date fixed by notice in writing given by the Commissioner pursuant to sec. 221F(7) prior to 7th July, 1975 and prior to 7th September, 1975 respectively. In the latter event, the information should have alleged non-payment by the varied date and, in accordance with the requirements, as varied pursuant to subsec. (7). Mr. O'Bryan rightly pointed out to me that sec. 221F(12) refers to a ``failure to comply with para. (a) of subsec. (5) of this section or with the requirements of that paragraph as varied in pursuance of subsec. (7) of that section.''
In my opinion on a consideration of all the evidence, and as a matter of law, it could not have been said at the conclusion of the case for the informant that a reasonable Magistrate could not have found that the provisions of subsec. (5)(a) of sec. 221F(11) [sic.] were applicable to this defendant and were breached. It follows that the Magistrate should not have acceded to defendant counsel's submission. (See May v. O'Sullivan (supra).) The Magistrate made his ruling because he considered that the Commissioner could retrospectively vary the requirements of sec. 221F(5)(a) and had apparently varied them, although how and when, he could not say. Although I have found that he was wrong on this matter, I am not to be taken as saying that the Magistrate should have found that the provisions of subsec. (5)(a) were in fact applicable to this defendant or that he himself should have been satisfied beyond reasonable doubt or according to any other standard of proof on the matter. This would have been a matter for him to determine on the evidence and in my opinion the onus of proof of this matter rested at all times on the informant. But as a matter of law, since in my view the defendant could on the evidence lawfully have been convicted, a submission of no case to answer on this ground should have failed. The Magistrate could, following a ruling that there was a case to answer, nonetheless, have decided, even if no further evidence was called, that he was not satisfied beyond reasonable doubt of the defendant's guilt. (See May v. O'Sullivan (supra).)
If the matter rested there, the case would have to be remitted to the Magistrates' Court for determination according to law. The matter does not rest there, for there were many other arguments submitted before me by Mr. Sweeney as counsel for the defendant. The information, a photostat copy of which is Exhibit ``A'' to Mr. Skahill's affidavit of 15th January 1976, is apparently a printed form commonly used by the Deputy Commissioner in prosecutions for offences against sec. 221F(5)(a) of the Income Tax Assessment Act 1936 as amended. There are certain spaces left for the insertion of details which may be applicable to the case in question at any time. The name of the informant is printed (not typed) at the top of the information and reads: ``Deputy Commissioner of Taxation''. It should be noted that the order nisi is taken out in the name of Leo Thomas Fitzgerald, Deputy Commissioner of Taxation, but that the name Leo Thomas Fitzgerald does not appear on the information before me. Accordingly, the order nisi is wrongly entitled and in a material respect. The name of the defendant company is typed on the information in a position in which it was apparently intended to designate it as defendant. It then reads, ``The information of'' and then in capital letters ``LEO THOMAS FITZGERALD'' followed by the words ``Deputy Commissioner of Taxation for the State of Victoria of 350 Collins Street, Melbourne, by'' then typed ``John Hourigan'', followed by the printed words ``an officer of the Australian Taxation Office stationed at 350 Collins Street, Melbourne aforesaid, the person authorised by the Deputy Commissioner of Taxation to lay this information in his name'' - then appear the counts alleged, the offences, as to which I will have more to say later. Then the document has printed in capital letters once again the words ``LEO THOMAS FITZGERALD'' and underneath that the word ``Informant'' and then beneath that the printed word ``by'' and then appears some handwriting which appears to read ``J. Hourigan''.
The information in its originally printed form alleged a contravention of sec. 221F(5)(a) of the Act in that the defendant being a group employer ``did fail to pay to the Deputy
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Commissioner of Taxation'' a specified sum. If there is to be an offence against sec. 221F(5)(a), it must be ``a failure to pay to the Commissioner'', for it is to the Commissioner only and not the Deputy Commissioner that subsec. (5) refers. The duty to pay to the Commissioner may be satisfied inter alia by payment of the sum due to any Deputy Commissioner. See reg. 54G. This regulation reads:``A group employer required to pay any amount to the Commissioner may pay that amount
(a) by delivery of cash, bank notes or cheques at the office of the Commissioner or any Deputy Commissioner;
(b) by remitting the amount to the Commissioner or any Deputy Commissioner by bank draft, cheque, postal money order or postal order payable in the State or Territory to which the remittance is sent; or
(c) by depositing the amount to the credit of the Commissioner or a Deputy Commissioner at any branch of the Reserve Bank of Australia.''
See also reg. 54H and 54J. It follows that payment to a particular Deputy Commissioner or in the instant case to Leo Thomas Fitzgerald is not the only way in which the defendant or any other group employer for that matter could comply with the provisions of sec. 221F(5)(a).
Accordingly, the printed form of information, when specifying the particulars of the alleged breach of sec. 221F(5)(a) (that is to say, in the words commencing ``in that being a group employer'' etcetera) did not specify any offence against sec. 221F(5)(a). The group employer is not bound to pay ``deductions'' to the Deputy Commissioner and his failure to do so does not constitute an offence. He may pay the Commissioner in a number of other ways.
The offence is committed only if payment is not made to the Commissioner as required by subsec. (5)(a) in any of the ways specified in reg. 54G.
Sections 6(1), 13, 176 and 209 of the Income Tax Assessment Act 1936, as amended, referring, as they do, to the Deputy Commissioner, do not appear to me to have anything to do with this point.
It may be a matter of some little importance, for it bears indirectly on the authority of the Deputy Commissioner for the State of Victoria to bring the proceedings in his official name or at all, and that of John Hourigan, to be authorised to do so in his official name or at all. It also goes to the question of proof required to establish an offence against sec. 221F(5)(a).
There is a clear distinction drawn by the Act between criminal proceedings against a group employer for an offence against a provision of sec. 221F ``which is applicable to him'' and proceedings for the recovery of the amount payable to the Commissioner. (See sec. 221R.)
Section 221R relates only to the recovery of the amounts ``payable to the Commissioner'' and states that such amount ``shall be a debt due to the King on behalf of the Commonwealth and payable to the Commissioner''. In the case of the ``debt'' the Commissioner or a Deputy Commissioner may sue ``in his official name'' to recover it (see sec. 221R(1)), and a certificate in writing signed by specified persons and setting out specified matters as to the debt ``shall be prima facie evidence of the matters stated in the certificate''. (See sec. 221R(2), and as to ``prescribed delegate of the Commissioner'', see reg. 3 and 61 of the Income Tax Assessment Act Regulations.)
Again, sec. 209 of the Act states, ``Any tax unpaid may be sued for and recovered in any court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his official name''.
But, again, this section relates only to a civil action to recover the tax due, and has no relationship to a prosecution for an offence against the Act.
As a matter of law, the printed information does not disclose any offence, in that the facts particularised do not amount to an offence.
After I had written this judgment, but before pronouncing it as I am now doing, I called counsel into court in order to ensure that there was not some section of the Act or some Regulation which may have escaped my notice, and which made a non-payment to the Deputy Commissioner an offence against sec. 221F(11). The form of information in which reference to the Deputy Commissioner occurs is obviously a commonly used stereotyped or printed form.
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Counsel were not able to point to any such section or regulation. Mr. O'Bryan relied upon sec. 13(b) of the Act. I do not myself see that sec. 13(b) has anything to do with this matter.
Mr. O'Bryan also took the opportunity to say that if the information disclosed no offence, he would apply to substitute the word ``Commissioner'' for the words ``Deputy Commissioner'' wherever appearing in the substance of the two counts of the information.
I informed him that I had considered this matter, and I would allow no further amendments to be made at this stage. In my view, to do so would be to do an injustice to the defendant. See Christie v. Permewan Wright & Co. (1904) 1 C.L.R. p. 693, 701. It may be said that this is a matter which could have been the subject of an amendment in the court below, if objection had been taken. See Broome v. Chenoweth 73 C.L.R. p. 583, 601.
In my opinion, however, at this stage different considerations apply. The whole of the debate before me, which proceeded for several days, proceeded on the basis that the Deputy Commissioner sought payment, that he was entitled to payment, and that payment had not been made to him.
It appears also to me that any amendment of the words ``Deputy Commissioner'' to read ``Commissioner'' might immediately give rise to many fresh objections, and criticisms of the information, and would, of course, squarely raise the right or entitlement of the Deputy Commissioner to bring the information, and would also highlight the absence of proof in the court below in relation to matters of this sort. In the exercise of my discretion, I would not allow any further amendment at this stage, should it be sought.
During the course of his able submission, Mr. Sweeney also submitted with relation to the wording of this printed information that although subsec. (11) of sec. 221F reads, ``An employer who contravenes, or fails to comply with, any provision of this section which is applicable to him shall be guilty of an offence'', the provisions of subsec. (7) and subsec. (12) make it clear that the only offence relative to subsec. (5)(a) or subsec. (7) is ``a failure to comply with'' the requirements of whichever of the subsections is applicable to the employer, and there is no such offence as a ``contravention'' of the relevant subsection.
Contravention, in this context, means, in Mr. Sweeney's submission ``a going against'' or ``infringement of'' or ``an act in defiance of'' the particular provision. It is, he submitted, an act of misfeasance rather than an act of non-feasance, the latter being more properly expressed by the words ``shall comply with'', ``fails to comply with'' and ``any failure to comply with'', all appearing in subsec. (7), subsec. (11) and subsec. (12) of sec. 221F respectively.
Yet the printed form of information itself charged that the defendant company did ``contravene sec. 221F(5)(a)''. Mr. Sweeney submitted that the evidence did not disclose a contravention, and further, that as the first part of subsec. (12) of sec. 221F relating to an offence against subsec. (5)(a) and subsec. (7) imposed no penalty for a ``contravention'' of sec. 221F(5)(a), such a contravention, if proven as an offence, could only attract a penalty of $200 under the second part of subsec. (12).
His general submission on the point seemed to me to be correct, and apparently Mr. O'Bryan also so regarded it, for during the course of the debate he immediately sought leave to amend the printed information by substituting the words ``fail to comply with'' in place of the word ``contravene'' where that word twice appears in the printed information. This application was opposed by Mr. Sweeney, but I granted Mr. O'Bryan leave to amend the information in this way and this was done, I believe, without injustice. See sec. 200 of the Justices Act 1958 (Vic.). Section 239 Income Tax Assessment Act 1936 as amended. Section 21A(1) Crimes Act 1914-73 (C'wealth).
Broome v. Chenoweth 73 C.L.R. p. 583, per Dixon J. at p. 600-1.
Banks v. Watford (1922) V.L.R. p. 531, 535-6.
Knox v. Bible (1907) V.L.R. p. 485, 500-1.
Crothers v. Sheil 49 C.L.R. p. 399, 407-8.
Next, Mr. Sweeney made several submissions based on the nature and form of the information, and also on the several sections of the Income Tax Assessment Act.
He first submitted that the information was not a ``taxation prosecution'' within the meaning of sec. 222 of the Act. Section 222 is the first section in Part VII of the Act headed
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``Penal Provisions and Prosecutions'' and it reads, ``in this Part, `taxation prosecution' means a proceeding by the Crown for the recovery of a pecuniary penalty under this Act''. It is worth noting that the words are ``under this Act'', and not ``under this Part''. Other sections of Part VII of the Act were repeatedly referred to and they include sec. 233, 243 and 244.Section 233 reads:
``(1.) A taxation prosecution may be instituted in the name of the Commissioner by action in the High Court or in the Supreme Court of any State or Territory of the Commonwealth.
(2.) Where the penalty sought to be recovered does not exceed one thousand dollars, or the excess is abandoned, the prosecution may be instituted in the name of the Commissioner or a Deputy Commissioner by information in a court of summary jurisdiction.''
Section 243 reads:
``(1.) In any taxation prosecution, every averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter averred.
(4.) This section shall not apply to -
- (b) proceedings for an indictable offence or an offence directly punishable by imprisonment.''
Section 244 reads:
``(1.) Where any taxation prosecution has been instituted by an officer in the name of the Commissioner or a Deputy Commissioner the prosecution shall, unless the contrary is proved, be deemed to have been instituted by the authority of the Commissioner or the Deputy Commissioner, as the case may be.
(2.) The production of a telegram purporting to have been sent by the Commissioner or a Deputy Commissioner and purporting to authorise an officer to institute any taxation prosecution shall be sufficient evidence of the authority of the officer to institute the prosecution in the name of the Commissioner or Deputy Commissioner, as the case may be.''
Mr. Sweeney relied upon the decision of the Full Court of the High Court in
Gaal v. Wilson (1956) 96 C.L.R. p. 522. The judgment of the Court, delivered by Dixon C.J., does not appear to have been a reserved judgment, and although I understand, as I believe, the decision, I have had some difficulty in appreciating what, exactly, is its ratio. The information in that case was sworn by a Mr. Gaal, an officer of the Department of Taxation in Sydney, and it alleged an offence against sec. 221F(5)(a) of the Act.
The High Court, which comprised Dixon C.J., Williams, Fullagar, Kitto and Taylor JJ., (if I may say so, with the greatest respect, a very strong court) held unanimously that ``the information is not a taxation prosecution within Part VII of the Income Tax and Social Services Contribution Assessment Act 1936-1954 because it is not a proceeding by the Crown for the recovery of a pecuniary penalty under that Act. (See sec. 222.) The jurisdiction of the Court of Petty Sessions to hear it as a summary offence arises by reason of sec. 68 of the Judiciary Act 1903-55 and sec. 43 of the Acts Interpretation Act 1903-1950.''
It is quite clear that sec. 221F is not in Part VII of the Act. It is in Part VI, generally entitled, ``Collection and recovery of the tax'' and is in Division 2 which is entitled, ``Collection of Income Tax by Instalments''. In Part VII immediately after sec. 222, which defines ``taxation prosecution'', there are created in secs. 223, 224, 226, 227, 228, 229, 230, 231 and 232 specific offences ranging from failure to furnish returns and refusal to give evidence, to furnishing false returns, certificates or declarations and fraudulent avoidance of tax and obstructing officers. All of these provisions are punishable by pecuniary penalties which are set out. Then sec. 233 appears relating to ``taxation prosecution''. If I accept Gaal v. Wilson to be authority to the effect that I am not here concerned with taxation prosecution under the Income Tax Assessment Act 1936 as amended, it follows that sec. 243, which I may term the averment provisions, could not be applicable to this prosecution. They would have nothing to do with this matter nor would sec. 233 and 244 apply. It has been stated more than once that taxation prosecutions under Part VII partake more of civil proceedings than criminal proceedings and that the onus of proof in taxation prosecution is not properly expressed
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as an onus to prove the case beyond reasonable doubt. SeeJackson v. Butterworth (1946) V.L.R. p. 33; and (1945) 8 A.T.D. 214;
F.C. of T. v. McStay (1945) 7 A.T.D. 527; Jackson v. Gromann (1948) V.L.R. 408. In McStay's case, Mr. Justice Williams said of proceedings under Part VII:
``Further, proceedings under Part VII of the Act are not strictly criminal proceedings. The defendant is not sent to gaol as a direct punishment for having committed the offence. If he was, sec. 243(4)(b) would prevent the section applying to any of the averments.''
It should also be appreciated, of course, that if the prosecution is not a taxation prosecution under the Act, then presumably the onus of proof would be the normal criminal onus of proof.
If, on the other hand, Gaal v. Wilson is not authority for the proposition that this proceeding is not a taxation prosecution, then I would need independently to decide whether this is a proceeding by the Crown for the recovery of a pecuniary penalty under the Act so as to render it a taxation prosecution within the meaning of Part VII.
Mr. O'Bryan stated that he was instructed to submit that the information was a taxation prosecution and he sought to distinguish Gaal v. Wilson simply on the ground that the defendant in this case, being a company, could not be imprisoned pursuant to sec. 221F(12). Implicit in his submission was the apparent assumption that where a term of imprisonment could be directly imposed by way of penalty on conviction the proceedings were not a taxation prosecution. Mr. O'Bryan no doubt had in mind the precise words of sec. 222. But sec. 243, the averment provisions applicable ``in any taxation prosecution'', contains subsec. (4)(b), which reads:
``This section shall not apply to (a)... (b), proceedings for an indictable offence or an offence directly punishable by imprisonment.''
This provision would seem to be mere surplusage, if the sole test to be applied in order to determine whether or not an information for an offence is a taxation prosecution is whether or not it is directly punishable by imprisonment.
Nonetheless, I find it extremely difficult to see any point in defining, ``taxation prosecution'' in sec. 222 as a ``procseding by the Crown for the recovery of pecuniary penalty under the Act'' if it also includes proceedings by the Crown for an offence directly punishable by imprisonment under the Act. The precise words of sec. 222 would seem to exclude such a construction, even though it may be that the emphasis in sec. 222 is on ``a proceeding by the Crown'' as distinct from a proceeding by some other person.
Until
Stuckey v. Iliff (1960) 105 C.L.R. 164, a reserved judgment of the Full Court of the High Court, it seems perhaps to have been accepted, from reading the books, that ``taxation prosecution'' as defined in sec. 222 only applied to prosecutions for offences against Part VII of the Act, despite the use in sec. 222 of the words, ``under this Act''. However, Stuckey v. Iliff makes it clear that a ``taxation prosecution'' as defined by sec. 222 can be brought in the manner set out in sec. 233(1) or sec. 233(2), whichever is appropriate, for an offence against any part of the Act. In a joint judgment, Dixon C.J., McTiernan, Kitto, Menzies, Windeyer JJ. said:
- ``... it is sufficiently clear that a prosecution for the offence created by sec. 251L(1)'' (under Part VIIA) ``is a prosecution for the recovery of a pecuniary penalty under this Act within the meaning of sec. 222. If the prosecution in this case could be regarded as a proceeding by the Crown it would therefore be capable of falling within the definition which applies to sec. 243.''
(See at page 170 above citation.)
Fullagar J. stated that he was not satisfied that sec. 243 applied to proceedings for an offence against sec. 251L of the Act. He did not state any reasons for his lack of satisfaction. But, having regard to his earlier decision in Jackson v. Butterworth (supra) and Jackson v. Gromann (supra) (both whilst a Judge of the Supreme Court of Victoria) and to the apparently popular view held since Gaal v. Wilson (supra) that proceedings for offences outside Part VII were not taxation prosecutions, it may be that these considerations led to his lack of satisfaction. He went on to state:
``The provisions of Part VII of this Act are notoriously confused and difficult and it would, I think, be a good thing if they were subjected to revision by the Parliament in the near future.''
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That case was heard and determined some 16 years ago since which sec. 222, 243, 244 and 245, all being most material provisions in Part VII, have not been altered in any way, and sec. 233 has been only incidentally amended by Act No. 143 of 1965 (see sec. 6 and the schedule thereto) by merely adding the words, ``or Territory of the Commonwealth''. In fact, no amendments have been made to Part VII which attempt to cure the interpretative difficulties flowing from it. These difficulties in my opinion still abound.
In Iliff's case, no reference appears to have been made, by counsel in argument or by the court in its judgment, to Gaal v. Wilson (supra). However, having regard to the decision in Iliff's case, the decision of Gaal v. Wilson must, I think, be considered simply as applying to the facts of that case. Its ratio seems accordingly to be that, because Gaal swore out the information in his own name, the proceeding could not be a ``taxation prosecution'', which by sec. 223 must be a proceeding ``by the Crown''. Nevertheless, the court held that the proceeding was not invalid and that the Court of Petty Sessions had jurisdiction to hear it by reason of sec. 68 of the Judiciary Act and sec. 43 of the Acts Interpretation Act.
It also appears that the Chief Justice, Sir Owen Dixon, may have had this question as to whether the information was a ``proceeding by the Crown'' foremost in his mind when in Stuckey v. Iliff (at page 166 of the report 105 C.L.R.) he asked Mr. Gibbs Q.C., counsel for the informant, ``Where is the provision which enables a prosecution to be maintained on behalf of the Crown by the Commissioner? Is it express or implied?'' Mr. Gibbs replied that the expression, ``by the Crown'' in sec. 222 is really defined by sec. 233 and that those words mean, ``by the Commissioner or his officers''. On looking at the precise wording of sec. 233, subsec. (1) refers to an action ``in the name of the Commissioner'' and subsec. (2) refers to a prosecution by information, ``instituted in the name of the Commissioner or Deputy Commissioner''. There is no reference whatever to what Mr. Gibbs referred to as ``officers'', as far as I can see.
The court in Stuckey v. Iliff held that if the prosecution in that case could have been regarded as a proceeding by the Crown, it would have been capable of falling within the definition of ``taxation prosecution'' in sec. 222 which applied to sec. 243, the averment provision. It went on to find that because the complaint was a complaint of Iliff, for his own name appeared as complainant and not that of the Commissioner or Deputy Commissioner, it could not be a ``taxation prosecution''. It may be important to have regard to the precise facts of that case as set out in 105 C.L.R. at pages 164 to 165.
``Charles Stuckey was proceeded against in the Court of Petty Sessions, at Brisbane, Queensland, for an offence against sec. 251L(1) of the Income Tax and Social Services Contribution Assessment Act 1936-1959 (C'th) on the complaint of Edgar Austin Iliff, an officer of the Taxation Branch of the Department of the Treasury, in the name of and on behalf of the Deputy Commissioner of Taxation for the State of Queensland. The complaint alleged that he was such officer and had been authorised by Philip Gower Johnston, the Deputy Commissioner of Taxation for the State of Queensland, to institute the prosecution in the name of and for and on behalf of the Deputy Commissioner of Taxation...''
It is also to be noted in passing that the complaint and averments therein and the regulations were tendered in Stuckey v. Iliff and admitted as evidence. No other evidence was led. None of these steps were taken in the instant case.
The High Court held in Stuckey v. Iliff that the averment provisions of sec. 243 did not apply. They allowed the appeal and quashed the conviction. However, as I see it, the point decided in that case is again different from the point arising here.
The general rule with regard to the interpretation of penal provisions in taxation statutes is expressed by Lord Haldane in
Lumsden v. I.R. Commrs. (1914) A.C. 877 as follows:
``No larger application should be given to the definition... than clear language or unmistakably necessary intendment requires. Where the words of the statute leave the intention obscure, they should be construed as they stand with only such extraneous light as is reflected from within the statute itself; a mere conjecture that Parliament entertained a purpose which, however natural, has not been embodied in the words literally interpreted is no sufficient reason for departing from the
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literal interpretation; to adhere to the literal construction unless the context makes it plain that it cannot be put on the words, is a rule especially important in cases of statues which impose taxation.''
This passage was quoted with approval by Dixon C.J., in Broome v. Chenoweth (1946) 73 C.L.R. 583 and 597-598 and at 8 A.T.D. 218, 223-224.
Bearing this principle in mind, it seems clear that in Part VII a ``taxation prosecution'', as defined by sec. 222, does not include a proceeding for an offence the direct punishment for which may be a term of imprisonment. That could not be said to be a proceeding for the recovery of a pecuniary penalty.
It appears to me that sec. 244(4), which may by implication tend to suggest otherwise, should not override what is clearly expressed in sec. 222. The provisions of Part VII are not so clear that the rule that one should not readily construe words in a statute as mere surplusage, should override what are, otherwise, plain enough words in sec. 222 (cf.
Income Tax Commissioner v. Pemsel (1891) A.C. p. 532 per Lord Macnaghten at p. 589).
Moreover, it would seem to me to be oppressive to expose a person to the risk of a term of six months' imprisonment on conviction for an offence, even though the tribunal is not satisfied of his guilt beyond reasonable doubt. One ought not, I think unless compelled, attribute such an intention to the Legislature.
If, then, a prosecution for an offence against sec. 221F(5)(a) or (7) is not to be considered a ``taxation prosecution'', as defined by sec. 222, if the person charged is an individual and can be sentenced directly to six months' imprisonment, (see sec. 221F(12)), can it, nonetheless, be such a taxation prosecution if the person charged with the same offence is a body corporate and unable per se to be so imprisoned?
There are very few sections of the Act which stipulate that a person may be imprisoned for a breach of the provisions of the Act. Section 221, sec. 229 and sec. 221F(12) do so stipulate, and all relate to breaches which are of the nature of true criminal offences such as theft and perjury.
Mr. O'Bryan submitted that the fact that the defendant was a company and incapable of being imprisoned made this particular prosecution a taxation prosecution, even though, had the defendant been an individual, it would not have been such. I have already indicated that the cases clearly establish that proceedings by way of ``taxation prosecution'' under Part VII partake more of civil proceedings than of criminal proceedings. I should also refer to
Mallan v. Lee 80 C.L.R., p. 198.
I find it extremely difficult to see how one could consider proceedings under sec. 221F, or, for example, sec. 221 or sec. 229, whether taken against an individual or a company, as a ``taxation prosecution'', as that word is defined in Part VII and interpreted in the decided cases. I think that the better view is that these proceedings are, of their nature, not a taxation prosecution falling within sec. 222.
It may also be helpful to consider whether it could be suggested that proceedings against a company under sec. 221F are a taxation prosecution, but proceedings against a person for aiding and abetting the company to commit the same offence are not. Yet, the person aiding and abetting could, of course, be punished by imprisonment, (cf. Mallan v. Lee, above citation, at p. 212, per Latham C.J., p. 216-7, Dixon J.).
In the present case there was, in any event, no averment such as is commonly made in a statement of claim in an action brought in the High Court or in the Supreme Court of the State. There was no averment of any sort tendered in the way of a document, and I find it difficult to consider the information per se as an averment. It was not, as I understand it, tendered before the Magistrate, (cf. Stuckey v. Iliff (supra)). The note of the Magistrate's ruling when he refers to averments is not clear to me, and I find difficulty in knowing exactly what he is referring to at all. In my opinion, the averment provisions of sec. 243 of the Income Tax Assessment Act are inapplicable in any event, in these proceedings.
Mr. Sweeney next submitted: (1) That the printed name, ``LEO THOMAS FITZGERALD'', appearing on the information was not a signature, (2) that there was no proof that Leo Thomas Fitzgerald was the Deputy Commissioner, and (3) that the information was not a certificate, notice or other document within reg. 62. The Regulations were not, apparently, referred to in the court below and they were not tendered
ATC 4282
there or before me. But as to this see sec. 266 andBrebner v. Bruce 82 C.L.R. p. 161, at p. 167-9.
I would agree that the printed words, ``LEO THOMAS FITZGERALD'' are not a signature and do not purport to be one. The Magistrate's finding on this matter was, in my opinion, wrong. See page 5 of Exhibit ``B'' of Mr. Scott-MacKenzie's affidavit of 31st March, 1976.
I also agree that there was no proof that Leo Thomas Fitzgerald was a or the Deputy Commissioner, and that sec. 4A of the Evidence Act 1905-73 requiring judicial notice to be taken of certain documents, does not assist the informant here.
Regulation 60 of the Income Tax Regulations relating to notices, and to notices purporting to be signed by the authority of the Commissioner, again would not appear to me to be applicable.
Regulation 62 reads:
``Any certificate, notice, or other document bearing the written stamped or printed signature of the Commissioner, the second Commissioner, a Deputy Commissioner or a prescribed delegate of the Commissioner, shall, unless the contrary is proved, be deemed to have been duly signed by the person by whom it purports to have been signed.''
I have already stated that I do not consider that the printed words in capital letters appearing on the information, namely, LEO THOMAS FITZGERALD, are or purport to be a signature, and I do not consider them to be so under the terms of the Regulations.
It seems quite clear that these words were printed by a letter press on the information when the pro forma document was printed, presumably in large numbers. Accordingly, I do not see how they can be considered to be a signature. Nor is there any evidence in the case that the signature appearing, in fact, beneath the printed words, LEO THOMAS FITZGERALD, which appears to be ``J. Hourigan'', is the signature of any person who is a ``prescribed delegate'' of the Commissioner, or authorised by the Deputy Commissioner in any way to lay informations in his name, or to sign his name.
Section 176 of the Income Tax Assessment Act, if applicable to informations, which I doubt, is inapplicable because there was here no signature of the Deputy Commissioner. In any event, the words ``official document'' in sec. 176 must, I think, in their context, relate to documents in the nature of assessments. Nor does sec. 177 apply, being confined, as it is, to notices of assessment, and documents purporting to be copies of a notice of assessment.
Regulations 53 and 55 of the Income Tax Regulations do not apply. They are regulations which can be called in aid in actions for the recovery of income tax and proceedings for failing to furnish a return.
Mr. O'Bryan relied upon sec. 13(b) of the Act which reads:
``Any reference in this Act to the Commissioner shall be deemed to include
(a)...
(b) in respect of matters as to which a Deputy Commissioner has exercised any power or function conferred upon him by delegation, a reference to that Deputy Commissioner.''
He submitted that that section, considered alongside the presumption of regularity, was sufficient to enable the Magistrate to find that the proceedings were properly instituted. There was no evidence of any conferring by delegation of a power or function and I am unable to accept this submission.
When Mr. Sweeney objected in the court below that the information was bad because it was not signed by the informant, as required by sec. 18 of the Justices Act, and he referred in support to
Waldron v. Bird CCH Company Law Cases \sp\ 40-122; (1974) V.R. p. 497, p. 503, the Magistrate said, ``The information is signed by J. Hourigan''. If that was so, then, of course, he is not the informant. Following this objection, the prosecutor sought and obtained an adjournment in order, he said, to obtain some documents, and to seek instructions. After he had done this presumably, and on resumption, the prosecutor referred the Magistrate to sec. 13(b) of the Crimes Act 1914-75 of the Commonwealth and sec. 245 of the Income Tax Assessment Act 1936-75.
He submitted that the authority to sign an information goes with the authority to appear on his behalf. See sec. 245.
Mr. Sweeney then submitted that sec. 18 of
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the Justices Act 1958 (Vic.) applied, and was not affected by either the Commonwealth Crimes Act sec. 13(b), or the Income Tax Assessment Act sec. 245, which related only to appearances before the court and not to the institution of proceedings. See Brebner v. Bruce 82 C.L.R. p. 161, 166-7.The Magistrate appears to have agreed with the prosecutor's submission. In my opinion, he was wrong in doing so. Mr. Sweeney's submission that sec. 245 applies only to appearance and not to the institution of proceedings is, in my view, correct. See Brebner v. Bruce (supra).
The Justices Act requires that the informant shall sign the information. Here the informant was Deputy Commissioner of Taxation (see Stuckey v. Iliff (supra)), and he personally did not sign, nor did he purport to sign. His signature does not appear on the information at all, nor was it proven that Deputy Commissioner of Taxation, the informant in this matter, was Leo Thomas Fitzgerald, nor did he sign the information.
In Christie v. Permewan Wright & Co. 1 C.L.R. p.693, the words of sec. 18 of the Justices Act (Victoria) were interpreted by the Full Court of the High Court, in the light of sec. 245 and sec. 248 of the Customs Act (No. 6 of 1901). Section 245 required prosecutions to be instituted in the name of the Collector. The Court held that this meant that an information could not be brought by anyone else in his own name, even if so authorised. However, there is no relevant section in the Income Tax Assessment Act which enables prosecutions, other than taxation prosecutions, to be brought in the name of the Deputy Commissioner (see sec. 233(2)).
On one view of sec. 233 of the Income Tax Assessment Act, it is taxation prosecutions only which may be instituted ``in the name of the Commissioner'', subsec. (1), or ``in the name of the Commissioner or a Deputy Commissioner'', subsec. (2) depending on the relevant circumstances. That is to say, on that view the section is an enabling section. On another view of sec. 233, a ``taxation prosecution'' can only be brought by the Crown in the manner outlined therein. It does not appear to be necessary to decide this point here.
Having regard to Stuckey v. Iliff (supra), I tend to prefer the latter view. If a proceeding for the recovery of a pecuniary penalty is brought, other than as outlined in sec. 233, it is not to be considered to be a ``taxation prosecution'', according to the reasoning which apparently was accepted in Stuckey v. Iliff. If it had not been for Stuckey v. Iliff (supra) I believe I would have preferred the former view. It was also held in Stuckey v. Iliff (supra) that ``prosecution'' in subsec. (2) of sec. 233 means ``taxation prosecution''.
There does not appear to be any appropriate provision in the Income Tax Assessment Act, relating to the bringing of prosecutions other than taxation prosecutions.
If the principle in Gaal v. Wilson applies, it would seem to follow that any person may bring a prosecution for a breach of sec. 251F(5)(a) of the Act.
However, even if this be so, the information would have to comply with the provisions of the Justices Act (Vic.), for the provisions conferring Federal jurisdiction do not alter the relevant State procedural laws.
I agree with Mr. Sweeney's submission that J. Hourigan, whose signature appears at the bottom of the information but who was not the informant, was not shown by the evidence (1) to be a person at all, (2), to be authorised to lay an information in the name of Leo Thomas Fitzgerald or anybody else and (3), to be authorised to prosecute anybody for an offence against sec. 221F(5)(a) in the name of the Deputy Commissioner of Taxation, or (b) to sign as agent for Leo Thomas Fitzgerald or for any Deputy Commissioner. As I said, he was not the informant. Section 244(1) does not apply. It applies only to taxation prosecutions for recovery of a pecuniary penalty.
Mr. Sweeney referred in support of all his submissions to a large number of authorities and I do not intend to canvas them in detail but simply to enumerate some few of them:
- 1. On the subject of judicial notice and sufficiency of signature:
Teague v. Farrell (1886) V.L.R. 408, 411;
Kozmenaky v. Schurmann (1881) 7 V.L.R. 474;
Sutherland v. Cooley (1898) 24 V.L.R. 410, 413;
Union Finance v. Woolcott (1889) 15 C.L.R. 504. - 2. As to requirement of signing the information:
R. v. Justices of Kent (1873) L.R. 8 Q.B. 305; In
re Whitely Partners (1886) 32 Ch.D. 337;
R. v. Cowper (1890) 24 Q.B.D. 533;
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In
re Prince Buchler (1931) 2 Ch. 70, 74;
London City Council v. Agricultural Food Products (1955) 2 Q.B. 218, 222; Stuckey v. Iliff (1960) 105 C.L.R. 164, 170.
Mr. Sweeney also submitted that even if the proceedings here were a taxation prosecution, and sec. 232(2) and sec. 244(1) applied, the information should nonetheless have been brought in the personal name of the Deputy Commissioner and not in his official name. He further submitted that Hourigan's signature was not verified in any way and he emphasised the contrast in the wording used in sec. 233(2) and 244 with that used in sec. 209 and sec. 221A, where an action may be brought by the Commissioner or Deputy Commissioner ``in his official name''.
I find it unnecessary in the circumstances to rule on this latter submission but there certainly is something to be said for the view that, if ``taxation prosecutions'' are to be brought by a Deputy Commissioner in Victoria, they should be brought in the name of Leo Thomas Fitzgerald or whoever is Deputy Commissioner rather than in the official name of the Deputy Commissioner. Then, if the matter is brought for example in the name of Leo Thomas Fitzgerald by an officer, sec. 224(1) would apply to a ``taxation prosecution''.
Mr. Sweeney based further argument on sec. 8 of the Taxation Administration Act, namely, that the power of the Commissioner to delegate did not include power to delegate the issuing of an information and, further, that even if it did, it would be necessary to prove the delegation, which was not done in this case. Again, I find it unnecessary to rule on the matter but I tend to agree with that submission. See reg. 61 of the Income Tax Regulations.
As mentioned above, he also submitted that sec. 221F(11) and (12) clearly contained a ``contrary intention'' and that therefore sec. 13(b) of the Commonwealth Crimes Act did not apply. This was an argument similar to that which, because of the specific provisions of the Customs Act, Impressed the Full Court of the High Court in Christie v. Permewan Wright (supra). Mr. Sweeney also relied upon the reasoning expressed in Brebner v. Bruce (supra) and Ridley v. Briggs (1966) V.R. 239. I am not able to accept this submission. I find no contrary intention expressed in the Income Tax Assessment Act.
In my opinion sec. 13(b) of the Commonwealth Crimes Act does apply.
Many other arguments were ably advanced by Mr. Sweeney but I hope I may be excused if I do not touch upon them as it appears unnecessary to do so. In my opinion, there was no evidence before the court below to enable it to say that the proceedings were properly instituted. More of the objections to which I have referred were taken in the court below. No amendments to the information were sought there. I am of the view that sec. 18(b) of the Justices Act applies to this prosecution brought apparently pursuant to sec. 13(b) of the Crimes Act of the Commonwealth and that there was no signature of the informant on the information. Moreover, there was no evidence of any delegation either to the Deputy Commissioner (if there was power to do so), or of any authority given to J. Hourigan to bring these proceedings in the name of the Deputy Commissioner or to sign the name of Leo Thomas Fitzgerald (if he had done so). It was quite clear that the Deputy Commissioner did not bring the proceedings himself. Even if he did, there is no relevant provision requiring the court to take judicial notice of him. The information is in the official name, Deputy Commissioner of Taxation. There is no provision in the Act enabling this to be done. J. Hourigan purported to be the duly authorised agent of the Deputy Commissioner of Taxation to lay the information in his name, but there was no evidence that he was or that Hourigan even existed. There was no evidence that Leo Thomas Fitzgerald was Deputy Commissioner of Taxation nor has it been shown that he had power to delegate. Whether the maxim delegatus non potest delegare applies is not perhaps necessary here to decide. I am also inclined to the view, having regard to the context of the Act, that, had this been a taxation prosecution, Leo Thomas Fitzgerald should have been the informant suing in his own name and not in his official name. In such circumstances sec. 233(2), 243 and 244 could have been called in aid, on the assumption that it was a ``taxation prosecution''. In any event the particulars of the information, even as amended as they were in the course of argument before me, in my opinion disclosed no offence against sec. 221F(5)(a) or sec. 221F(11). Some of the defects might possibly have been cured by further amendments but others depended on evidentiary material which was absent in the case.
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Having regard to all the circumstances I believe that justice would not be served by allowing any further amendments at this stage. The decision of the Magistrate, although, I believe, based upon the finding that could not be sustained, should be upheld on any one of a number of other grounds. In the circumstances it is appropriate to reiterate, with respect, the remarks of Fullagar J, in Stuckey v. Iliff (supra) although, as I say, made 16 years ago. The confusion and difficulty to which he referred and which he found in interpreting and implementing Part VII of the Income Tax Assessment Act continues today. In a statute of such universal importance it is regrettable that such ambiguities are allowed to continue and that the Commissioner and the Deputy Commissioners, who for practical purposes have the responsibility to administer the Act, are placed in such a difficult position in performing their duties under the Act.
The order nisi will be discharged, with costs fixed at $200.
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