Case: Mallinson v Scottish Australian Investment Co Ltd [1920] HCA 51 ; (1920) 28 CLR 66 
Outcome: applied
Commissioner's primary submission is that each amount, the subject of a notice under s 260- 5 , is recoverable by an action in debt under the principles of the general law as explained by the High Court in the following passage from its unanimous judgment in Mallinson v Scottish Australian Investment Co Ltd [1920] HCA 51 ; (1920) 28 CLR 66: The rule applicable here is stated in Shepherd v Hills as follows, viz, 'Wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary'; and where the amount is liquidated the action of debt is appropriate. The obligation is none the less a debt because the statute gives no particular method of enforcing it. In cases in which the statute contains no express denial of the right to bring an action, the proper course to adopt in order to determine whether it contains 'some provision to the contrary' within the meaning of the rule stated above is to consider whether it appears from the whole purview of the Act that it was the intention of the Legislature that the remedy provided should be a substitute for the right of action which would otherwise exist; and in determining this question it is material to consider whether the obligation imposed by the Act was designed to benefit a particular class of persons .... It is also material to consider whether the provision made by the Act for compelling obedience to its commands is in the nature of a penalty for disobedience or in the nature of compensation to the person whose rights are affected by the failure to perform the obligations imposed by the Act. [The case citations have been omitted]. The respondent argues, applying the Shepherd v Hills proviso adopted in Mallinson , that s 260-20 constitutes a "provision to the contrary", which denies the right to sue for recovery that would otherwise arise by implication. This is because, it submits, s 260-20 provides a sanction for non-compliance with a notice under the criminal law, with power in the criminal court in its discretion to order payment of an appropriate sum to the Commissioner. Section 260-20 relevantly provides: Offence (1) The third party must not fail to comply with the Commissioner's notice. Penalty: 20 penalty units (2) The court may, in addition to imposing a penalty on a person convicted of an offence against subsection (1) in relation to failing to pay an amount under the notice, order the person to pay to the Commissioner an amount not exceeding that amount. As to s 260-20, there is no general principle that the availability of civil remedies is excluded by provision for a criminal sanction with a discretionary power to order payment of monies due. I do not consider that the Parliament intended the criminal sanctions in s 260-20 to be the exclusive means of enforcing a notice. The respondent further submits that s 255-5, which provides for an express regime of civil recovery but does not extend to amounts arising under s 260-5, is also "a provision to the contrary". This seeks, in effect, to apply the maxim expressio unius est exclusio alterius as an aid to construction. It is an aid which must be used with caution: Houssein v Under Secretary of Industrial Relations and Technology [1982] HCA 2 ; (1982) 148 CLR 88 at 94; Barratt v Howard [1999] FCA 1132 ; (1999) 165 ALR 605 at 615 per Hely J. If applied in this case it would bring about a result which I doubt the Parliament intended: Ainsworth v CJC [1992] HCA 10 ; (1992) 175 CLR 564 at 575. The existence of affirmative provisions elsewhere in the Act does not, in my opinion, override the principle articulated in Mallinson . The references to "tax payable" and "tax due" are significant. I apprehend the Court here was saying no more than that under s 218 the third party was, unlike s 255, not liable to pay the "tax payable". Section 255(1)(c) rendered the "controller" of monies of a non-resident personally liable for the tax payable on behalf of the non-resident. Section 218, by contrast, created a new obligation for payment to the Commissioner of "money due, accruing or (which) may become due" by a person to a taxpayer, albeit the payment of that money by the person to the Commissioner was to be credited against the taxpayer's liability to tax. However, it did not in terms enable the Commissioner to recover from the other person the tax due by the taxpayer. The provisions to which I have referred in the ITAA36 concerning assessments of tax have no immediate application in respect of s 218. This, in my view, is how the distinction between ss 218 and 255 referred to in Bluebottle should be understood. I would expect that had the Court meant that s 218 provided no capacity for the Commissioner to sue for recovery of amounts the subject of a notice other than through criminal proceedings, it would have referred to earlier High Court authority on the subject such as Clyne and particularly the principle explained in Mallinson . Indeed Clyne was applied in Bluebottle in dealing with another issue and Mallinson was also referred to but not on this point. I do not regard Bluebottle as overruling the principle articulated in Mallinson.