Coomealla Aboriginal Housing Pty Limited v Wentworth Shire Council

[1998] NSWLEC 107

Land and Environment Court

of New South Wales

CITATION:	COOMEALLA ABORIGINAL HOUSING PTY LIMITED v. WENTWORTH SHIRE COUNCIL [1998] NSWLEC 107 (7 May 1998) [1998] NSWLEC 57
PARTIES:	COOMEALLA ABORIGINAL HOUSING PTY LIMITED v. WENTWORTH SHIRE COUNCIL [1998] NSWLEC 107 (7 May 1998)
FILE NUMBER(S):	30117 of 1997
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:
DATES OF HEARING:	7 May 1998
EX TEMPORE JUDGMENT DATE :	05/07/1998
LEGAL REPRESENTATIVES:	Mr B Green, Barrister Mr T Hale, Barrister

JUDGMENT:

By its amended Points of Defence filed on 4 May 1998 the Respondent in paragraph 5 asserts a lack of jurisdiction in the Court to hear and determine the Applicant’s appeal by reason that the appeal is said to have been made outside the period specified by s574(3) of the Local Government Act 1993 , namely 30 days after the service of the rates notice.

It is common ground that the Applicant filed its appeal to the Court on 19 August 1997. Since the matter raised goes to the Court’s jurisdiction, and with the parties’ concurrence, I decided to determine immediately, and as a discrete matter, the question of jurisdiction.

The Respondent’s assertion of lack of jurisdiction ultimately depends upon a finding of fact, namely that the 33 rate notices (the subject of the present appeal) addressed to the Applicant’s Post Office box at Dareton Post Office were placed in that box before 20 July 1997.

Since each of the rate notices records 17 July 1997 as the date of posting and there is evidence from the Respondent’s General Manager that on that day, he did post, prepaid at the Post Office Wentworth, all the Rate Notices issued for the rate period 1 July 1997 to 30 June 1998, realistically the Respondent’s case depends upon a finding by the Court that the 33 rate notices were placed in the Applicant’s private post office box at the Dareton Post Office on Friday 18 July and not Monday 21 July, as the Applicant’s evidence would have it.

Ultimately I have not been persuaded that service of the rate notices was effected on Friday 18 July 1997. The preponderating weight of the evidence strongly suggests, as a matter of probability, that the rate notices were not placed in the Applicant’s private post box at the Dareton post Office until Monday 21 July 1997. On the evidence I find, as a matter of probability, that the rate notices addressed to the Applicant (i) were delivered by the Respondent to the Wentworth Post Office on Thursday 18 July 1997, (ii) were thereafter delivered by the postal service from Wentworth Post Office to Dareton Post Office (Dareton is 30 minutes distant by vehicle from Wentworth) later that day or the next day, (Friday 18 July 1997), (iii) but were not placed in the Applicant’s private post box until Monday 21 July 1997.

Having regard to the mode of service adopted in the present case for the rate notices (see s710(2)(c) of the Local Government Act 1993) I would conclude, based upon my aforesaid findings, that service of the rate notices did not occur until they were placed in the Applicant’s post office box on Monday 21 July 1997.

It follows that the Applicant’s appeal filed in Court on 19 August 1997 was made within the 30 days period prescribed by s574(3) of the Local Government Act 1993.

It further follows that the Court’s jurisdiction has been relevantly invoked and that the Respondent’s defence raised in paragraph 5 of its Amended Points of Defence fails.

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I HEREBY CERTIFY THAT THIS AND THE PRECEDING 2 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.

Associate