O'Reilly and Ors. v. Commissioner of the State Bank of Victoria and Ors.

Gibbs CJ

Mason J
Murphy J
Wilson J

High Court of Australia

Judgment date: Judgment handed down 16 December 1982.

Gibbs C.J.

I have had the advantage of reading the reasons for judgment prepared by my brother Mason and those prepared by my brother Wilson . I need not set out in full the facts of the case or the text of the sections of the Income Tax Assessment Act 1936 (Cth.) as amended (``the Act'') which appear in those judgments but may proceed immediately to state my reasons for the conclusions which I have reached.

The answers to questions 1 and 2 of the case stated depend on the proper construction of sec. 263 of the Act. That section presents difficulties of construction, and is of such importance that it would not be desirable that its effect should be decided by a Court which, because of the untimely death of our late brother Aickin , is constituted by only four members. For those reasons, I would adjourn questions 1 and 2 for argument before a full bench of the Court early in the new year.

Questions 3 to 6 raise two questions in relation to sec. 264 of the Act. That section provides, inter alia:

``(1) The Commissioner may by notice in writing require any person...

  • ...
  • (b) to attend and give evidence before him or before any officer authorized by him in that behalf concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.''

The powers of the Commissioner under this section were delegated by the Commissioner to Deputy Commissioners by a delegation made under sec. 8(1) of the Taxation Administration Act 1953 (Cth.), as amended, and dated 13 November 1979. The notices given in the present case bore a facsimile of the signature of a Deputy Commissioner. The facsimile was stamped on the document by Mr. Holland, who held and occupied the position of Chief Investigation Officer in the Taxation Department. The Deputy Commissioner had

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no personal knowledge that Mr. Holland intended to issue the notice. However, the Deputy Commissioner had, by an authorization made on 23 September 1980, subject to certain conditions authorized officers occupying or performing the duties of Chief Investigation Officer to exercise the following powers and functions:

``Authorize issue of notices other than notices requiring the giving of information or evidence on oath.

Imprint facsimile of my signature upon such notices.''

The important question that falls for decision is whether the giving of the notices was a valid exercise of the power given by sec. 264.

Section 264 in terms confers power only on the Commissioner. However, it is not disputed that the delegation by the Commissioner to the Deputy Commissioner was valid. Equally, it is common ground that the Deputy Commissioner had no power of sub-delegation. On behalf of the defendants it was submitted that the authorization given by the Deputy Commissioner on 23 September 1980 was an invalid sub-delegation or, alternatively, that the Deputy Commissioner had no power to authorize anyone else to exercise the power on his behalf.

The question whether sec. 264 requires that the Commissioner (or his delegate) should personally sign the notice in writing is simply one of construction. In In
re Whitley Partners, Limited (1886) 32 Ch.D. 337 at pp. 340-341 , Bowen L.J. said:

``In every case where an Act requires a signature it is a pure question of construction on the terms of the particular Act whether its words are satisfied by signature by an agent. In some cases on some Acts the Courts have come to the conclusion that personal signature was required. In other cases on other Acts they have held that signature by an agent was sufficient. The law on the subject is thus summed up by Blackburn J. in
R. v. Justices of Kent Law Rep. 8 Q.B. 305 , at p. 307 : `No doubt at common law, where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it; nevertheless there may be cases in which a statute may require personal signature.' Quain J. then says, `We ought not to restrict the common law rule, qui facit per alium facit per se, unless the statute makes a personal signature indispensable'.''

There can be no doubt that as a general proposition at common law a person sufficiently ``signs'' a document if it is signed in his name and with his authority by somebody else, but if by statute a document has to be personally signed the duty of signing cannot be delegated to a third person: see
London County Council v. Agricultural Food Products Ltd. (1955) 2 Q.B. 218 at pp. 223-224 . Exactly the same principles apply when the power is given by statute to a designated person to issue a notice. The notice may be given by the authorized agent of the designated person, whose act will be the act of the principal, unless the statute on its proper construction requires the notice to be issued only by the person who is designated.

It would serve no useful purpose for me to canvass all the authorities in which questions of this kind have been considered in relation to the exercise of statutory powers; they are discussed in De Smith's Judicial Review of Administrative Action (4th ed.) at pp. 303-309. The answer to the question whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: cf.
Re Reference under Ombudsman Act sec. 11 (1979) 2 A.L.D. 86 at p. 93 , per Brennan J. However, I should mention the line of authorities which commenced with
Carltona Ltd. v. Commrs. of Works (1943) 2 All E.R. 560 and which are discussed in In
re Golden Chemical Products Ltd. (1976) Ch. 300 . Those authorities established that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department. This result depended in part on the special position of constitutional responsibility which Ministers occupy, and in that respect these authorities are distinguishable from cases such as the present. However, they also rest on the recognition that the functions of a Minister are so multifarious that the business

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of government could not be carried on if he were required to exercise all his powers personally. Ministers are not alone in that position. This has been judicially recognized. In
Commrs. of Customs and Excise v. Cure & Deeley Ltd. (1962) 1 Q.B. 340 at p. 371 , it was said that the Commissioners in that case were in a position parallel to that of Ministers, and in Ex parte Forster;
Re University of Sydney (1963) S.R. (N.S.W.) 723 at p. 733 , the senate of a university was regarded as being in a similar situation. I can see no reason why, in construing sections of the Act which confer powers on the Commissioner, it should not be proper to consider the undoubted fact that the Commissioner could not possibly exercise all those powers personally.

Section 264 confers on the Commissioner a power whose exercise will be likely adversely to affect rights of individuals. This is a reason for inclining in favour of the view that it must be exercised personally. On the other hand, that section, and a number of other hand, that section, and a number of other sections of the Act, confer on the Commissioner powers which may be expected to be exercised in myriads of cases. Those other sections include sec. 166-169, 170 and 174, which give power to make and amend assessments and to serve notice of assessments. Since there are literally millions of taxpayers (according to Year Book Australia 1982 at p. 577, there were over 5.6 million individual taxpayers in the year 1979-80) it would reduce the administration of the taxation laws to chaos if the powers conferred by those sections could be exercised only by the Commissioner or a Deputy Commissioner personally. It cannot be supposed that the Parliament intended such a result. By sec. 13 of the Act any reference in the Act to the Commissioner is deemed to include, 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. The power of delegation conferred by sec. 8(1) of the Taxation Administration Act 1953 (Cth.), as amended, enables the Commissioner to make a delegation ``to a Deputy Commissioner of Taxation or other person''. In Re Reference under Ombudsman Act see. 11 at p. 94, Brennan J. said that -

``The practical administrative necessity which warrants an authority's exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other.''

The existence of a power to delegate is of course an important consideration in deciding whether the designated authority may act through an authorized agent. However, the fact that the Act itself contemplates that the delegation will be to a Deputy Commissioner only (notwithstanding that sec. 8(1) of the Taxation Administration Act confers a wider power of delegation) suggests that it was not intended that there should be a wholesale delegation of powers to comparatively minor officials. But in any case it would hardly be practicable to make a delegation of that kind, and it seems to me that there exists, as the Parliament must have known, a practical necessity that the powers conferred on the Commissioner by the Act should be exercised by the officers of his Department who were acting as his authorized agents. On the whole I have reached the conclusion that the powers conferred by sec. 264 were not intended to be exercised only by the Commissioner or his delegate personally but may be exercised through a properly authorized officer. This is consistent with the decision in
Lee v. F.C. of T. (1962) 107 C.L.R. 329 at p. 335 where it was held that the acts of the Commissioner's officers (no doubt acting within the course of their authority) in performing duties under other sections of the Act were the acts of the Commissioner for the purposes of the Act. In opposition to this view reliance was placed on the fact that express reference to officers authorized by the Commissioner is made in sec. 263 and 264, and this, it was said, indicated an intention to exclude action by authorized officers in other cases. Section 263, which refers to ``the Commissioner or any officer authorized by him'', is concerned with rights, whereas sec. 264 is concerned with powers; one may conclude that a power may be exercised through an agent more readily than that a right is conferred upon an agent. The reference in sec. 264(1)(b) to ``any officer authorized by him'' may be explained by the fact that in the context of that provision it is necessary to specify the officer before whom the recipient of the notice is

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required to attend. The fact that authorization is expressly mentioned in these provisions does not assist the conclusion that sec. 264 otherwise excluded any possibility of authorization.

For these reasons, in my opinion, Mr. Holland was authorized to exercise, on behalf of the Deputy Commissioner, the power to issue notices under sec. 264.

The second question raised in relation to sec. 264 is as to the form of the notices. The notices required the persons to whom they were addressed to attend and give evidence ``before Edward Henry Cornell (an officer of the Australian Taxation Office, who is authorized in that behalf)''. Mr. Cornell was a Supervisor, Investigation Section, in the Taxation Department and the authorization of 23 September 1980 to which I have already referred authorized officers occupying or performing the duties of that position to ``Examine addressees and receive evidence, books, documents and papers''. However, it was submitted on behalf of the defendants that an ``officer authorized by him in that behalf'' within the meaning of sec. 264(1)(b) means an officer authorized in respect of the particular matter in relation to which the notice was given. It was said that the notices would have been sufficient if they had included the word ``hereby'' before the word ``authorized'', but are insufficient without it. There is no substance in this submission. It is unnecessary to decide whether sec. 264 makes it necessary that the officer before whom the recipient of the notice is required to attend and give evidence must have been specially authorized in that particular matter or whether a general authority is sufficient. If (as I incline to think) the latter is the correct view, Mr. Cornell was authorized under the general authorization which I have held to be effective. If, on the other hand, the section requires an authority in the particular case, the notices, on their proper construction, can only be read as authorizing Mr. Cornell to receive the evidence and documents in that particular case.

For these reasons, in my opinion, questions 3(a), 3(b), 4, 5(a), 5(b) and 6 should all be answered, Yes.

Questions 7 and 8 raise the important question whether a solicitor served with a notice under sec. 264 can claim to refuse to produce documents on grounds of professional privilege and confidence. I agree to the answers proposed to those questions by my brothers Mason and Wilson, and could not usefully add to what they have said on the matter.

I would direct that questions 1 and 2 be reargued and would answer the other questions in the case stated as follows:

  • 3. Yes, in each case.
  • 4. Yes.
  • 5. Yes, in each case.
  • 6. Yes.
  • 7. No, in each case.
  • 8. Unnecessary to answer.

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