Muli Muli Local Aboriginal Land Council v Kyogle Shire Council

[2005] HCATrans 669

[2005] HCATrans 669

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S95 of 2005

B e t w e e n -

MULI MULI LOCAL ABORIGINAL LAND COUNCIL

Applicant

and

KYOGLE SHIRE COUNCIL

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 10.46 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If your Honours please, I appear with MR A.L. McAVOY for the applicant.  (instructed by Zabow & Wise)

MR T.F. ROBERTSON, SC:   If the Court pleases, I appear with MS L.M. BRYNE for the respondent.  (instructed by McInnes Legal)

GUMMOW J:   Yes, Mr Gageler.

MR GAGELER:   May we show your Honours first the statutory provisions and then where we say the Court of Appeal principally went wrong.  The statutory provisions your Honours have annexed to the applicant’s list of authorities in the most convenient form.  If your Honours really go through the folios one by one, in the Local Government Act in section 546(1) it provides that:

A rate or charge is levied on the land specified in a rates and charges notice by the service of the notice.

Then in section 574(3):

An appeal must be made within 30 days after service of the rates and charges notice.

There is no provision for an extension of that appeal period.  Then in section 710, for the different ways in which a notice may be served ‑ ‑ ‑

GUMMOW J:   I am sorry, what is the critical provision in 574?

MR GAGELER:   Subsection (3).

GUMMOW J:   Yes, thank you.

MR GAGELER:   Then in section 710, provision is made for the different ways in which a notice may be served.  Your Honours may note subsection (2)(g) provides that one method of service is depositing the notice in a document exchange box, in which case subsection (3) speaks specifically as to the time of service.  Subsection (2)(c) provides that another – and your Honours will appreciate in practice the most frequently used method of service is posting by prepaid letter, in which case section 710 itself is silent as to the time of service.  In our respectful submission, that silence is filled by section 76 of the Interpretation Act, that your Honours will see by going two pages over.  Section 76(1)(b) provides that:

unless evidence sufficient to raise doubt is adduced to the contrary, [service is] taken to have been effected on the fourth working day after the letter was posted –

Now, critical to the reasoning in the Court of Appeal appears to have been section 710(8), which was treated as displacing section 76(1)(b) in its entirety.  Section 710(8) says only that:

Proof by affidavit or orally that a notice has been posted in ‑ ‑ ‑

GUMMOW J:   Yes, they are talking about posting.

MR GAGELER:   Yes.  Your Honours, it appears to us that it is better seen as going to the proof of the fact of service and saying nothing at all about the time of service, which would be most consistent with ‑ ‑ ‑

GUMMOW J:   You say it goes to the fact of posting?

MR GAGELER:   The fact of posting, yes.  But, your Honours, if it was seen to speak in any way to the subject matter of section 76(1)(b), then, in our respectful submission, it is best read as going to the qualification – that is, if your Honours flick over to section 76(1)(b), at most, it would cut out the qualification “unless evidence sufficient to raise doubt is adduced to the contrary”.  Now, perhaps it might be said that it prevents evidence to the contrary, leaving only the deemed service taken to be effected on the fourth working day after the letter was posted.

HAYNE J:   Do you accept that 76(1)(a) is the subject of, I will not say contrary provision, but the provisions of 710(2)(c) make resort to 76(1)(a) unnecessary?

MR GAGELER:   No, your Honour.  We seem them as complementary provisions.  They work entirely coherently and in a complementary way.  We do not see any inconsistency at all.  If your Honours go to the application book page 37, line 10 – it is difficult to find the passage where we say the court goes wrong but this is perhaps one of the most critical ones.  This is addressing section 710(8).  Justice Tobias said this:

It is possible that the draftsman’s adopted method of providing a “contrary intention” for the purpose of s 5(2) of [the Interpretation] Act was to provide specifically that proof that a notice had been posted in accordance with s 710(2)(c) would be “conclusive evidence of service”, intending thereby to displace the statutory presumption in s 76(1)(b).  In clear terms the effect of s 710(8) would be to deny the person to be served the right to rebut the presumption by “evidence sufficient to raise doubt . . . to the contrary”.  I can see no other explanation for the inclusion of sub-section (8) and none has been suggested.

Now, the difficulty with that, your Honours, is it may well be right.  It is perhaps a possible construction that section 710(8) denies the right to rebut the presumption.  What is the consequence of that?  It leaves the presumption in place, that is, it makes it conclusive.  What you are left with is a perfectly sensible rule that there is a fixed date of service four days after posting, which in the ordinary course one would expect would lead to the letter being received.

GUMMOW J:   What do you say about your opponent’s point on page 60, 2.1?

MR GAGELER:   Well, I think that is the point that I have sought to address your Honours.  If it is a conclusive evidence provision, what is the extent of the inconsistency?  The extent of the inconsistency, in our respectful submission, lies in respect of that part of section 76(1)(b) which is the ability to qualify the statutory presumption by evidence to the contrary.  So, in other words, it leads to a blue pencilling of “unless evidence sufficient to raise doubt is adduced to the contrary”, leaving a statutory presumption.

HAYNE J:   Assume that the Court of Appeal is wrong in its understanding of section 710(8) or the effect of section 710(8).  Was the evidence below evidence that revealed when the document was in the relevant post box?

MR GAGELER:   Yes.  There is evidence your Honour will see at page 25 – this is well summarised in Justice Tobias’ judgment – about line 10.  The notice was placed in the box on 1 August.  The respondent cleared the box on 4 August, and about line 19:

If the correct date of service was 4 August 2003 or some later date as the respondent contends, then the appeal was instituted within time.

HAYNE J:   But it was delivered into the box on 1 August, is that right?

MR GAGELER:   Yes, that is correct, your Honour.  If your Honour assumes for a moment that my client, instead of having a post box, which most people and certainly most organisations of this sort do not clear every day, had a DX box, then ‑ ‑ ‑

HAYNE J:   Yes, if things were different, things would be different I am sure.  I can accept that proposition readily, Mr Gageler.

MR GAGELER:   I know that, your Honour.

GUMMOW J:   You can claim this with some merit.

MR GAGELER:   All I am seeking to suggest, your Honour, is that there is a coherence about this legislative scheme.  If the Court pleases.

GUMMOW J:   Yes, Mr Robertson.

MR ROBERTSON:   Your Honour, we would respectfully submit that there are two flaws in my friend’s argument.  The first is to equate a contrary intention with the notion of inconsistency.  There does not need to be inconsistency to find a contrary intention.  There just has to be an intention on the part of Parliament to deal with the subject matter of service in section 710 for section 76 to be displaced.  It is as sufficient to point to section 76(1)(a) as the means of addressing the letter, as any other part of it, to demonstrate the contrary intention.

GUMMOW J:   Why is that?  Section 76(1) latches onto the phrase “served by post”, does it not?

MR ROBERTSON:   Yes, “served by post”.  Then it deals with the way post can be effected, which is already dealt with in section 710.

GUMMOW J:   It says “authorises”.

MR ROBERTSON:   Correct.

GUMMOW J:   So it does not have to be the exclusive method.

MR ROBERTSON:   It does not, no, but this more usually supplements legislation which merely refer to post as a method of service rather than stipulate in great detail, as section 710 does, each of the various methods of service.  So that intruding section 76 into section 710, we respectfully submit, upsets the legislative scheme.  The second difficulty that we detect in my friend’s submissions is that it really asks the wrong question.  The question is:  what does “service” mean in section 574?  If you turn to that provision, subsection (3) says:

An appeal must be made within 30 days after service of the rates and charges notice.

The question is:  what did the legislature mean by the term “service” in section 574?

GUMMOW J:   You say it means by posting.

MR ROBERTSON:   Yes, that is right.

GUMMOW J:   It is 30 days and that is a quite comfortable period.

MR ROBERTSON:   Indeed, and the various acts stipulated in subsection (2) demonstrate that the deeming provision for service was intended by the legislature not merely to describe the modes of effecting service, but to treat service as itself effected upon the doing of the various act on the part of the councils.  In other words, not relying upon third parties to do things, it simply suffices that the Council is able to do those things and can prove them under subsection (8) by way of affidavit. 

We do not rely upon subsection (8), and we did not in the court below, as a provision indicating a contrary intention to section 76.  It is simply a provision which is consistent with what we detect to be the intention of Parliament, that the doing of the acts stipulated in subsection (2), which can be proved in one case by a conclusive affidavit under subsection (8), is sufficient to meet the meaning of “service” in section 574.  If it please the Court.

HAYNE J:   Does it come to this, that either 710 makes putting the letter into the postal system the act of service, or it does not?

MR ROBERTSON:   That is so.

HAYNE J:   If it does not, section 76(1)(b) is engaged and permits, though it does not require, inquiry into when the document was actually in the postal receptacle at the recipient’s end.

MR ROBERTSON:   That is the second difficulty that we say this case involves, because the treatment of the presumption as effectively irrebuttable if you can accelerate the time is, we respectfully submit, plainly contrary to the allowance in section 76 for proof to the contrary.  If the Court pleases.

GUMMOW J:   Thank you.  Yes, Mr Gageler

MR GAGELER:   Your Honours, our learned friend’s submission really confuses the method of service with the time of service in an act that is otherwise making time of the essence in section 574(3).  Adopting a principle of harmonious interpretation, and particularly a principle that has a draftsman deemed to understand the provisions of the Interpretation Act that otherwise governs statutes in its polity.  The fact that this Act is silent as to the time of service in the case of posting of a notice leads one, we

suggest, comfortably to the view that the draftsman had in mind that section 76(1)(b) would govern.  If the Court pleases.

GUMMOW J:   There are insufficient prospects of success in any appeal in this matter to warrant a grant of special leave.  Accordingly, special leave is refused with costs.

AT 11.01 AM THE MATTER WAS CONCLUDED