Case: Secretary, Department of Social Security v Garratt (1992) 109 ALR 149
Outcome: distinguished
The applicant also relied on the obiter observations of Gummow J in Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 at 157-158, approved in obiter by a Full Court in Secretary, Department of Social Security v O'Connell (1992) 38 FCR 540 at 551-554. In my view Garratt is readily distinguishable. The statutory scheme in s 168(3) and (4) of the Social Security Act 1947 (Cth) (the SSA) was entirely different from that in the Act. Section 168(4) dealt with the time at which a determination upon internal review would take place. If the person concerned had sought review within three months after "a notice was given to the person ... advising the person of the making of the previous decision", or if no such notice was given, the determination took effect on the date of the previous decision. Otherwise, the determination took effect on the date of the application for review. 20 Unlike the present case, there was no provision in the SSA that required a notice to be given of a cancellation decision. Although the Act implicitly permitted the Secretary to serve such a document, and to serve it in accordance with s 28A of the AIA, there was no statutory link between that document and the notice of the previous decision referred to in s 168(4)(a). Thus in O'Connell at 552, the question whether the Secretary was entitled to serve a notice of cancellation in accordance with s 28A was treated as separate from whether notice had in fact been given of the previous decision for the purposes of s 168(4)(a). By contrast, s 36(7) of the Act expressly requires a notice to be served, and sub-s (8) refers to the service of that notice. That is to say, the time period specified in sub-s (8) begins to run on "the service of the notice" under sub-s (7). This is not analogous to the legislative setting in Garratt , where the relevant provisions fixed a date which was "determinative of the right of persons in relation to pensions, benefits and claims under the Act": Garratt at 157. 21 It was submitted by the applicant, again by analogy with Garratt at 157, that a contrary intention was constituted by the fact that s 36(8) brought about the forfeiture of property. I do not think that constitutes a contrary intention. In Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 at 96, speaking of a Queensland provision in the same form as s 28A, the High Court said: "Paragraphs (b) and (c) of s 42(1) contemplate the possibility of something less than actual receipt by the person to be served. As was observed by Tindal CJ in Bishop v Helps in relation to a comparable provision, although leaving notices at a place of abode or sending them through the post involve the possibility of non-receipt by the intended recipient: 'It was probably considered that the public convenience would be promoted by the present provision, and that its advantages would greatly outweigh the inconvenience which, in some few cases, might possibly arise from it.' Nevertheless, proof of the use of any one of the methods of service provided by s 42(1) constitutes proof of service for the purpose of the Hire Purchase Act ...."