Muli Muli Local Aboriginal Land Council v Kyogle Shire Council

[2004] NSWLEC 20

Land and Environment Court

of New South Wales

CITATION:

Muli Muli Local Aboriginal Land Council v Kyogle Shire Council [2004] NSWLEC 20

PARTIES:

APPLICANT
Muli Muli Local Aboriginal Land Council

RESPONDENT
Kyogle Shire Council

FILE NUMBER(S):

31053 of 2003

CORAM:

Cowdroy J

KEY ISSUES:

Practice and Procedure :- service of rate notice - date of service - distinction between prescribed mode of service and date of service

LEGISLATION CITED:

Interpretation Act 1987, s 5(2), s 36, s 76
Land and Environment Court Rules, Pt 6 r 1
Local Government Act 1993 s 574, s 710
Supreme Court Rules 1970, Pt 13 r 5(1)

CASES CITED:

Australian Trade Commission v Solarex Pty Ltd (1987) 78 ALR 439;
Coomealla Aboriginal Housing Pty Limited v Wentworth Shire Council [1998] NSWLEC 107;
Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271;
Deputy Commissioner of Taxation v Taylor [1983] 2 NSWLR 139;
Elsediek v Barri (Hunt J, Supreme Court of New South Wales Administrative Law Division, 30 April 1987, unreported);
Fancourt and Another v Mercantile Credits Limited (1983) 154 CLR 87;
Hewitt v Leicester Corporation [1969] 1 WLR 855;
In re 88 Berkeley Road, NW 9; Rickwood v Turnsek and Another [1971] 1 Ch 648;
Johnson v Lake Macquarie City Council and Gordon Pacific Ltd (1991) 72 LGRA 144;
McClelland and Another v Amcil Industries Pty Ltd [1983] 1 NSWLR 615;
Nicholson v Tapp [1972] 1 WLR 1044;
Prospect County Council v Lethorn and Another [1980] 2 NSWLR 464;
Regina v County of London Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 QB 682;
The King v The Westminster Unions Assessment Committee. Ex parte Woodward & Sons [1917] 1 KB 832

DATES OF HEARING:

16/12/2003

DATE OF JUDGMENT:

02/06/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Wright (Barrister)

SOLICITORS
Zabow & Wise

RESPONDENT
Mr T. Robertson SC

SOLICITORS
McInnes Legal

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

31053 of 2003

Cowdroy J

6 February 2004

Muli Muli Local Aboriginal Land Council

Applicant
V

Kyogle Shire Council

Respondent

Judgment

Introduction

1 By notice of motion filed 20 November 2003 the respondent seeks a dismissal of these proceedings pursuant to Pt 13 r 5(1) of the Supreme Court Rules 1970 (“the Supreme Court Rules”). The motion is founded upon the ground that no reasonable cause of action is disclosed since the applicant’s class 3 application was filed outside the 30 day period prescribed by s 574(3) of the Local Government Act 1993 (“the LG Act”).

2 The applicant’s class 3 application was made pursuant to s 574(1) of the LG Act appealing from the levying of the Muli Muli Water Supply Special Water Rate on lot 1 in deposited plan 881617 in the Parish of Lindsay in the County of Buller (“the subject land”). The applicant claims that the subject land is not rateable pursuant to the Muli Muli Water Supply Special Water Rate.

3 Section 574(1) of the LG Act provides:-

(1) A person who has an estate in land, or who is the holder of a licence or permit for land under the Crown Lands Act 1989 , in respect of which a rates and charges notice is served may appeal to the Land and Environment Court:
(a) in the case of a rate—against the levying of the rate on the ground that the land or part of it is not rateable or is not rateable to a particular ordinary rate or a particular special rate, or
(b) in the case of a charge—against the levying of the charge on the ground that the land is not subject to any charge (excluding a charge limited under section 503 (2)) or is not subject to the particular charge.

Section 574(3) of the LG Act provides:-

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

4 Part 13 r 5(1) of the Supreme Court Rules provides:-

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) no reasonable cause of action is disclosed,

(b) the proceedings are frivolous or vexatious, or

(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.


Part 13 r 5(1) of the Supreme Court Rules is adopted by the Land and Environment Court Rules (“the Court Rules”): see Pt 6 r 1 of the Court Rules.

Respondent’s submissions

5 The respondent submits that s 574(3) of the LG Act is obligatory and that period in which to institute an appeal cannot be extended. It says that the Court lacks jurisdiction to hear and determine the appeal if the proceedings are not commenced within 30 days after service of the rate notice: see Johnson v Lake Macquarie City Council and Gordon Pacific Ltd (1991) 72 LGRA 144.

6 On 31 July 2003 the respondent posted a rate notice to the applicant by prepaid letter addressed to PO Box 68, Woodenbong 2476 (“the rate notice”). On 1 August 2003 the rate notice was placed in the applicant’s post office box at Woodenbong by Ms Hoffman who is the licensee and operator of the Woodenbong Post Office. The respondent alleges that the applicant collected its mail from the post office and received the rate notice on 4 August 2003. This fact is not challenged by the applicant. On 3 September 2003 the class 3 application was filed.

7 The respondent refers to s 36 of the Interpretation Act 1987 (“the Interpretation Act”) which relevantly provides:-

(1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.

(2) If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls:


(a) on a Saturday or Sunday, or
(b) on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,
the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.


Accordingly the respondent submits that if the rate notice was served on Friday 1 August 2003, the last day for filing an appeal was Monday 1 September 2003, being the thirtieth day after 1 August 2003 not falling on the weekend. Alternatively if the rate notice was served when it was received by the applicant on Monday 4 August 2003, the last day for filing the class 3 application was Wednesday 3 September 2003 being 30 days after 4 August 2003.

8 Section 710 of the LG Act relevantly provides:-

(1) A notice required by or under this Act to be served on a person may be served as provided by this section.

(2) The service may be:
…
(c) by posting the notice by prepaid letter addressed to the last known place of residence or business or post office box of the person to be served, or

…
(3) If a notice is deposited in a box, or left at a document exchange, service of the notice is, until the contrary is proved, taken to be effected 2 days after the day on which the notice is so deposited or left.

(7) If a notice has been served by any of the means prescribed by this section, all inquiries required under this section are taken to have been made, and the service is conclusive evidence of them.
(8) Proof by affidavit or orally that a notice has been posted in accordance with this section is conclusive evidence of service.

9 The respondent submits that s 710(2) of the LG Act prescribes various modes of service, each of which has the capacity of bringing the rate notice to the attention of the ratepayer. However the respondent says that none of the methods in s 710(2) of the LG Act, except for personal service, require the rate notice to be received by or otherwise made known to or comprehended by the ratepayer. The respondent submits that the law has never required the receipt of the rate notice for service to be effective. Delivery is sufficient to constitute service. The respondent refers to the observations of Lee J in Deputy Commissioner of Taxation v Taylor [1983] 2 NSWLR 139 at p 143 where his Honour said:-

But the very fact that a mode of service other than personal service is permitted, of itself ordinarily means that service will be complete when the requirements stipulated for service have been fulfilled.

Accordingly the respondent submits that service is effected by the mere posting of the rate notice.

10 The respondent alternatively submits s 76 of the Interpretation Act raises a presumption that “unless evidence sufficient to raise doubt is adduced to the contrary”, the letter was served on the fourth working day after it was posted. Section 76(1) of the Interpretation Act provides:-

(1) If an Act or instrument authorises or requires any document to be served by post (whether the word “serve”, “give” or “send” or any other word is used), service of the document:

(a) may be effected by properly addressing, prepaying and posting a letter containing the document, and
(b) in Australia or in an external Territory—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and
(c) in another place—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.

11 The respondent relies upon the observations of the High Court in Fancourt and Another v Mercantile Credits Limited (1983) 154 CLR 87 where their Honours said at p 97:-

As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.

The respondent also relies upon the observations of Stein JA in Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 where his Honour at p 277 observed that “ Proof of non-receipt is not proof of non-delivery .” His Honour’s judgment made reference to Fancourt .

12 The respondent says that since the letter was delivered to the applicant’s post office on the day after posting, the statutory presumption is displaced and service was effected on 1 August 2003. That is, the common law presumption that prepaid mail is delivered “in the ordinary course of the post applies” (see Australian Trade Commission v Solarex Pty Ltd (1987) 78 ALR 439 at p 442, p 443, p 445) because it has been proved that “the ordinary course” of post in this case ensured that the rate notice was delivered on the day following the posting.

13 The respondent submits that although it would be open to conclude that service is effected upon posting rather than delivery to the post office box so that the provisions of s 76 of the Interpretation Act are displaced, it is unnecessary to do so because delivery was effected more than 30 days before the appeal was commenced.

14 The respondent says its submissions are consistent with the findings of Bignold J in Coomealla Aboriginal Housing Pty Limited v Wentworth Shire Council [1998] NSWLEC 107. Furthermore the respondent claims its submissions are also consistent with the scheme of the LG Act. It submits that service of the rate notice could not depend upon the time when the ratepayer received or comprehended such notice, otherwise the ratepayer might simply refuse to visit the post office, or clear all the rate notices from the post office box, or leave unopened envelopes received in their letter box, or leave unread a faxed copy of the rate notice. Where a statutory scheme provides for a method of service, it is to prevail: see The King v The Westminster Unions Assessment Committee; Ex parte Woodward & Sons [1917] 1 KB 832 at p 838-9, p 840, p 841-2 and In re 88 Berkeley Road, NW 9; Rickwood v Turnsek and Another [1971] 1 Ch 648.

Applicant’s submissions

15 The applicant says that the rate notice was deemed to have been served on Wednesday 6 August 2003, being the fourth working day after the rate notice was posted by the respondent on Thursday 31 July 2003. The applicant submits that the 30 day period should be calculated by starting from but not including 6 August 2003. Therefore in accordance with s 36 and s 76 of the Interpretation Act the last day for filing the class 3 application was Friday 5 September 2003 which was two working days after the class 3 application was filed.

16 The applicant submits that the entitlement to appeal a rate notice constitutes a valuable right. The applicant says that the recipient of a rate notice is entitled to certainty as to the time within which the right to appeal must be exercised. Such certainty is provided by s 76(1)(b) of the Interpretation Act. Therefore the recipient must determine whether it is to exercise the right of appeal within that time and where a rate notice is posted to it, the time is to be calculated in accordance with the relevant presumption in s 76 of the Interpretation Act.

17 The applicant does not deny the fact that the rate notice was received. Nor is it seeking to displace the presumption in s 76(1)(b) of the Interpretation Act by suggesting that it received the rate notice at some date later than the fourth working day after it was posted.

18 The applicant says that if the respondent’s submissions are accepted the applicant would need to know the actual date the rate notice was placed in its post office box in order for it to determine the date by which the appeal was to be lodged.

19 The applicant submits that the common law presumption of the ordinary course of the post does not apply. Instead the scheme provided by s 76 of the Interpretation Act is clear. That is, where service is to be effected by post it is taken to be effected on the fourth working day after the letter was posted. Where service is effected everywhere else, service is effected when the letter would have been delivered in the ordinary course of the post.

20 The applicant submits that the respondent now seeks to displace the presumption in s 76(1)(b) of the Interpretation Act even though it chose to have the rate notice served by post. The applicant alleges that such presumption can only be displaced by proving the date upon which the applicant received the rate notice. The applicant says that evidence of the date upon which the rate notice was placed in the applicant’s post office box on 1 August 2003 is not evidence of receipt by the applicant. The respondent has therefore not led sufficient evidence to raise doubt which would displace the presumption.

21 The applicant submits that it is not clear from Coomealla Aboriginal Housing whether the argument before Bignold J was directed to the proper application of the presumption in s 76(1)(b) of the Interpretation Act. Furthermore Bignold J’s decision turned on the particular facts before him. His Honour was satisfied on the evidence that the appeal was commenced within 30 days of the relevant notices being placed in the post office box of Coomealla Aboriginal Housing Pty Ltd.

Findings

22 The issue to be resolved is whether service of the rate notice was effected when it was posted or placed in the applicant’s post box or effected four days after the rate notice was posted in accordance with s 76 of the Interpretation Act. It is not disputed by the parties that the rate notice was posted on 31 July 2003 and collected by the applicant on Monday 4 August 2003. The resolution of the issue lies in the distinction which must be drawn between the mode of service and the time when service is effected.

Mode of service

23 Section 710 of the LG Act provides that service may be effected, inter alia, by posting the rate notice, being the mode of service selected by the respondent. Once the conditions in s 710(2)(c) of the LG Act have been fulfilled, namely that the notice is posted by prepaid mail addressed to the last known place of residence or post office box of the person to be served, service is effected, subject to any other statutory provisions.

24 In The King v The Westminster Unions Assessment Committee at p 838 Viscount Reading CJ came to the following conclusion in relation to the provisions of the Valuation (Metropolis) Act 1869 (UK):-

On a consideration of this statute I have come to the conclusion that once there has been proved the sending by post of a prepaid letter properly addressed containing a notice the assessment committee have proved all that is necessary, and that there is an end of any question of service.

The Act under consideration in that case however contained a specific provision which dealt with the time at which the relevant notice was deemed to have been served, namely delivery in the ordinary course of post. In contrast whilst s 710(2)(c) of the LG Act makes provision for service by post, it does not make provision for the time at which service is deemed to have been effected.

25 Section 710(8) of the LG Act is a facultative provision clearly intended to assist in establishing conclusively that service of a rate notice has been effected. Proof of such service, where the method of post is adopted, is to be established by evidence that the rate notice was posted. In Deputy Commissioner of Taxation v Taylor Lee J said at p 143 (with reference to the Income Tax Assessment Act 1936 (Cth)):-

But the very fact that a mode of service other than personal service is permitted, of itself ordinarily means that service will be complete when the requirements stipulated for service have been fulfilled.

By analogy the same observations can be made by reference to the provisions of s 710(2)(c) of the LG Act. A person may give evidence of the date of posting the rate notice in accordance with the requirements of s 710(2)(c) of the LG Act but such evidence does not determine the date of when service is effective.

26 The Court’s interpretation of s 710(2)(c) of the Interpretation Act is similar to that of Samuels JA in McClelland and Another v Amcil Industries Pty Ltd [1983] 1 NSWLR 615 in relation to s 37 of the Consumer Claims Tribunals Act 1974 which was adopted by Hunt J in Elsediek v Barri (Hunt J, Supreme Court of New South Wales Administrative Law Division, 30 April 1987, unreported). Hunt J said at p 2 in Elsediek v Barri:-

S37 of the Consumer Claims Tribunal Act deems the posting by pre-paid post to the last known address of the person of any notice required by the Act to be given to that person to be sufficient service of that notice. That provision has been given some attention by the Court of Appeal in McClelland v Acmil Industries Pty Ltd [1983] 1 NSWLR 615 ...

Both s29 and s41 of the Act require the registrar to cause notices to be sent as to the time and place of proceedings before a tribunal. In my view, s37 is directed to the mode of service of such notices, but not to the time of that service. It does not provide - as for example s63(4)(b) of the Justices Act 1902 provides - that a notice sent by pre-paid post shall be deemed to have been served at any particular time. However, s27(I) of the Interpretation Act 1897 operates prima facie to deem such document to have been served at the time at which it would be delivered in the ordinary course of post.

That was the interpretation given to s37 by Samuels JA in McClelland v Acmil Industries Pty Ltd. Hope JA assumed that the notice was effective once it was in fact received, but his Honour did not go on to deal with any particular interpretation of s37. Hutley JA held that s37 was directed to both the mode and the time of service. For the reasons given by Samuels JA, I am not prepared to follow what Hutley JA said. The fact that the legislature has done nothing since that decision to amend what would be, as Hutley JA himself conceded, a gross injustice to respondents if he were correct in his interpretation suggests very strongly that the views expressed by Samuels JA rather than those expressed by Hutley JA are to be preferred.

Time when service is effective

27 Section 76(1)(b) of the Interpretation Act provides a statutory presumption for the date of service of documents to be served by post. For the present purposes such documents include a rate notice issued under the provisions under the LG Act.

28 The presumption so created deems service to have been effected on the fourth working day after the letter was posted “unless evidence sufficient to raise doubt is adduced to the contrary”.

29 No indication is provided by the Interpretation Act to suggest that the nature of the “doubt”, and the Parliamentary debates leading to the inclusion of s 76(1)(b) in the Interpretation Act do not assist. In these circumstances, the Court must draw the inference that the qualification to the presumption could be utilised in instances in which the posted rate notice was never received. This was precisely the circumstances considered by Denning MR in Hewitt v Leicester Corporation [1969] 1 WLR 855. In that case a statutory presumption was raised by the Interpretation Act 1889 (UK) which deemed service to be effected when the letter would have been delivered in the ordinary course of the post. The letter was returned and marked “gone away”. Denning MR held that service in such circumstances had not been effected. At p 858 Denning MR said:-

We are not bound to “deem” a notice to be served at a particular time when we know that in fact it was not served at all.

The words in s 76(1)(b) of the Interpretation Act “unless evidence sufficient to raise doubt is adduced to the contrary” is intended to apply to circumstances such as those prevailing before Denning MR. See also Regina v County of London Quarter Sessions Appeals Committee. Ex parte Rossi [1956] 1 QB 682 which confirmed that proof of non-receipt of a document in the ordinary course of post nullified the presumption. For a decision of similar consequence, see Nicholson v Tapp [1972] 1 WLR 1044. See also Prospect County Council v Lethorn and Another [1980] 2 NSWLR 464 at p 469.

30 The Interpretation Act “applies to all Acts and instruments…whether enacted or made before or after the commencement” of such Act. Section 5(2) of the Interpretation Act provides:-

(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

Since s 710(2)(c) of the LG Act does not stipulate the time of service, its provisions do not express a contrary intention to the provisions of s 76(1)(b) of the Interpretation Act. Section 710(8) of the LG Act is also consistent with 76(1)(b) of the Interpretation Act. The latter provision complements the provisions of s 710 of the LG Act by providing a specific date upon which service is deemed to have been effected.

31 The provision of s 76(1)(b) of the Interpretation Act creates the certainty necessary to establish the date of service. In the present circumstances the date of service of the rate notice issued by the respondent would be 6 August 2003 unless there is evidence of doubt concerning its receipt. The evidence of the respondent establishes that the rate notice was placed in the applicant’s post office box on 1 August 2003. The respondent, by adducing such evidence seeks to truncate the statutory period of four working days from the date of the posting of the rate notice. However no doubt concerning service exists, since the applicant has not claimed that it did not receive the rate notice. Accordingly there is no basis in these circumstances for reducing the time for service allowed by s 76(1)(b) of the Interpretation Act.

32 The Court has been referred to the ex-tempore judgment of Bignold J in Coomealla. It is not clear how his Honour reached his decision that service was effective from the time that the rate notice was placed in the applicant’s post office box, and it appears that his Honour’s attention was not drawn to the provisions of the Interpretation Act. In these circumstances the Court does not gain assistance from such decision.

33 The Court notes that s 710(3) of the LG Act is not relevant to s 710(2)(c) of the LG Act. The reference to “deposited in a box” is at first sight confusing and could suggest a post office box. However when read in context with s 710(2)(g) of the LG Act it is apparent that s 710(3) of the LG Act is relevant to such subsection.

Conclusion

34 Service of the rate notice was effected four working days after 31 July 2003 being the date of its posting. Accordingly the rate notice was served on 6 August 2003. It follows that the appeal was to be lodged by 5 September 2003, being 30 days after the date of service not including 6 August 2003: see s 36 of the Interpretation Act.

35 It follows that the motion must be dismissed as the appeal has been instituted within the prescribed period and is therefore competent.

Orders

36 The Court orders that:-

1. The notice of motion filed 20 November 2003 be dismissed;

2. Costs reserved.