Kyogle Shire Council v Muli Muli Local Aboriginal Land Council

The appeal concerned the time at which service of rate notices was effected. The appellant, Kyogle Shire Council, had posted rate notices to the respondent, Muli Muli Local Aboriginal Land Council, on 31 July 2003. The respondent instituted an appeal to the Land and Environment Court on 3 September 2003, arguing that the land was not rateable. The appellant sought to dismiss this appeal, contending it was filed outside the 30-day time limit prescribed by section 574(3) of the *Local Government Act 1993* (NSW). The primary judge in the Land and Environment Court had found that service was effected on 6 August 2003, applying section 76(1)(b) of the *Interpretation Act 1987* (NSW), and dismissed the appellant's motion. The appellant appealed this decision to the Court of Appeal.

The central legal issues before the Court of Appeal were whether section 710 of the *Local Government Act 1993* provided for both the mode and the time of service by post, and if not, whether section 76(1) of the *Interpretation Act 1987* applied to determine the time of service. The court also considered whether section 710 of the *Local Government Act 1993* expressed a "contrary intention" within the meaning of section 5(2) of the *Interpretation Act 1987*, which would exclude the operation of section 76(1).

The Court of Appeal allowed the appeal. It reasoned that section 710(2)(c) of the *Local Government Act 1993* only prescribed the mode of service by post, not the time at which service was deemed to be effected. Consequently, section 76(1) of the *Interpretation Act 1987* was applicable. The court found that section 710 did not express a contrary intention to section 76(1), meaning the latter provision applied. Section 76(1)(b) presumes service is effected on the fourth working day after posting, unless evidence sufficient to raise doubt is adduced. The court held that the primary judge erred in his interpretation of when evidence sufficient to raise doubt could be relied upon, and that the facts established that the notices were received by the respondent on 4 August 2003, not 6 August.

The Court of Appeal set aside the orders of the primary judge. It declared that the respondent's appeal to the Land and Environment Court was made more than 30 days after service of the rates and charges notice. The court ordered that the respondent's application be dismissed and that the appellant pay the respondent's costs of the summons for leave to appeal and of the appeal.