Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Dari Satu Pty Ltd t/a Espresso Drive ‘N’ Save [2002] QIRC 81 (2002) 170 QGIG 164

164 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 June, 2002 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for recovery of unpaid wages Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Dari Satu Pty Ltd t/a Espresso Drive ‘N’ Save (No. W53 of 2002) COMMISSIONER BLADES 27 May 2002 Application for an order to recover unpaid wages – Service on a corporation – Service by post – Non-appearance of corporation – Documents posted by pre-paid registered post to registered office of the corporation – Documents returned by postal authority with the notation “left address” – Whether service affected – Rules 27 and 62 Industrial Relations (Tribunals) Rules 2000 – Section 39A Acts Interpretation Act 1954 – Held service not proved. DECISION The Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (the ALHMWU) is the applicant for an order for wages payable on behalf of Daniel Gallagher, a member, and seeks to utilise the provisions of Rule 62 of the Industrial Relations (Tribunals) Rules 2000 where the respondent company has failed to appear. Rule 62 provides that the Commissioner may hear and decide an application under s. 278 of the Industrial Relations Act 1999 if the Commission is satisfied (a) the application contained a warning that the application may be dealt with in the respondent’s absence, (b) the applicant has proved service of the application on the respondent and (c) the application contains sufficient particulars relied on in support of the application. As to (a) and (c), I am satisfied. The problem arises with regard to (b). On two occasions, the applicant has forwarded by pre-paid registered post to the registered office of the company, the appropriate documents. On both occasions, the documents have been returned unclaimed with the notation on the envelopes “left address”. The question is whether a valid service on the company has been proved. Rule 27 provides, so far as is relevant: “(1) The following are ways by which a document may be served on the person to be served – . . . (f) posting the document to the relevant address; . . .”. Under Rule 27(4)(c), the “relevant address” for a corporation is its head office or its principal or registered office. However, when reading Rule 27(1)(f), the reader’s attention is directed by means of a footnote, to s. 39A of the Acts Interpretation Act 1954 for the meaning of service by post. That section provides: “(1) If an Act requires or permits a document to be served by post, service - (a) may be affected by properly addressing, prepaying and posting the document as a letter; and (b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.”. The question is whether the words “unless the contrary is proved” operate so as to void the service by posting because it is clear that the company did not receive the documents. The matter has been before the Courts on a number of occasions and it has been said that a conclusion reached under one piece of legislation can provide little assistance in the interpretation of a different piece of legislation – Lee J in Federal Commissioner of Taxation v Taylor (1983) 72 F.L.R. 283 at 286. In that case, a notice of assessment to income tax was served on a taxpayer by posting it to him at his address for service. The taxpayer was overseas at the time and did not receive the notice. It was held that the relevant section of the Income Tax Assessment Act 1936 did not require that a notice of assessment must be shown to have come to the attention of the taxpayer. It is, I think, of some significance that the notices were in fact received at the taxpayer’s nominated address for service but when on-forwarded by the taxpayer’s agent, were then returned unclaimed. In Fancourt & Anor v Mercantile Credits Ltd (1983) 57 A.L.J.R. 621, similar questions arose in the interpretation of service provisions of the Hire Purchase Act 1959 (Qld) and the then s. 39(1) of the Acts Interpretation Act 1954 (Qld) which is similar to the present s. 39A(1). The appellants had sworn that they did not receive certain notices posted to them. However, there was nothing to show that the notices had not been delivered as addressed. The High Court referred to a line of cases, the effect of which was that proof of non-delivery means that service cannot be deemed to have taken place and that proof of non-delivery is as effective as proof of non-service. The Court however, distinguished those cases but significantly I think, because they were all cases in which delivery was disproved. The Court held that delivery for the purposes of s. 39(1) of the Acts Interpretation Act 1954 may be different from receipt by the intended recipient, and provided delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected in accordance with s. 39(1)(b). What is to be noted is that in this case, delivery has been disproved by the return of the envelopes marked by the Post Office “left address”. It is not a case where the Company gives evidence that it did not receive the documents. The final case to which I would refer is that of Gem Po-Chioh Cheong v Webster ex parte Gem Po-Chioh Cheong (1986) 2 Qd. R. 374. This case concerned the provisions of s. 56 of the Justices Acts 1886-1982 wherein it was provided that “a summons shall be properly served if it is served in accordance with this subsection, that is to say, … by posting …”. The summons in that case had been returned marked “unclaimed”. The Full Court held that the summons had been properly served. It also held that s. 39(1) of the Acts Interpretation Act 1954-1977 had no relevant application as s. 39(1) was inconsistent with and repugnant to the true intent and object of s. 56(1) of the Justices Act 1886-1982. Because of the presence of the footnote in Rule 27(1)(f) directing the reader’s attention to s. 39A of the Acts Interpretation Act 1954, I see great difficulty in holding that in this case, the provisions of that Act are inconsistent with and repugnant to the true intent and object of Rule 27. While the footnote is not part of the Act (s. 14(6) Acts Interpretation Act) it is “extrinsic material” which can be used as an aid in interpretation (s. 14B Acts Interpretation Act). -- 1 of 2 -- 7 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 165 The Rule provides for ways that a document may be served but then makes a specific reference to the provisions of service by post in the Acts Interpretation Act. The result of the application of those provisions is that where there is proof to the contrary, service cannot be taken to have been effected. That result is consistent with the line of cases cited in Fancourt and is not inconsistent with the decisions in Taylor or Webster. I have also referred to s. 109X of the Corporations Act 2001 which deals with the service of documents but in my view the provisions of ss. 28A and 29 of the Acts Interpretation Act 1901 (Cwlth) operate in a similar manner. I am therefore satisfied that because these documents have been returned with postal markings “left address”, the documents have not been served in accordance with Rule 27 and there is no authority to proceed under Rule 62. The application is adjourned to a date to be fixed for proof of service. B.J. BLADES, Commissioner. Hearing Date: 23 May 2002. Released: 27 May 2002 Appearances: Mr R. Robinson for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. -- 2 of 2 --