Tasbulk Pty Ltd v Royal Wolf Trading Australia Pty Ltd
[2012] TASSC 87
•21 December 2012
[2012] TASSC 87
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasbulk Pty Ltd v Royal Wolf Trading Australia Pty Ltd [2012] TASSC 87
PARTIES: TASBULK PTY LTD
v
ROYAL WOLF TRADING AUSTRALIA PTY LTD
BRIGHTON COUNCIL
FILE NO: 783/2012
DELIVERED ON: 21 December 2012
DELIVERED AT: Hobart
HEARING DATE: 11 October 2012
JUDGMENT OF: Porter J
CATCHWORDS:
Environment and Planning – Tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal – Right of appeal – Notices of decisions and actions – Appeal to be lodged within 14 days after the day on which notice served – Provision enabling service by various means including post – Notice "is effectively served" if notice posted to one of specified addresses – Act of posting a notice completes act of service and identifies the time of service.
Campbell v Brighton Council (1995) 4 Tas R 430, followed.
Kyogle Shire Council v Muli Muli Aboriginal Land Council (2005) 62 NSWLR 301; Commissioner of Taxation v Soong [2009] NSWSC 495, applied.
Land Use Planning and Approvals Act 1993 (Tas), ss61 and 84.
Aust Dig Environment and Planning [597]
REPRESENTATION:
Counsel:
Appellant: S G Wright
First Respondent: No appearance
Second Respondent: No appearance
Solicitors:
Appellant: Wright Gilmour
First Respondent Don Armstrong
Second Respondent Abetz Curtis
Judgment Number: [2012] TASSC 87
Number of paragraphs: 52
Serial No 87/2012
File No 783/2012
TASBULK PTY LTD v ROYAL WOLF TRADING AUSTRALIA PTY LTD
REASONS FOR JUDGMENT PORTER J
21 December 2012
Introduction
This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal (the Tribunal) constituted solely by A F Cunningham as Presiding Member. The decision, made on 6 September 2012, related to the preliminary issue of whether a notice of appeal by Tasbulk Pty Ltd from a decision of a planning authority, was lodged within the prescribed time. The Tribunal determined that it was not.
The Brighton Council had granted a permit to Royal Wolf Trading Australia Pty Ltd for a development relating to machinery sales and hire. Under s57(5) of the Land Use Planning and Approvals Act 1993 (the Act), Tasbulk had made a representation in opposition to the grant of the permit. As s57(7) of the Act required it to do, the Council served notice of its decision on Tasbulk. The Council's notice of the grant of the permit was sent by post on 19 July 2012. Service of notices by post is permitted by s84(a)(ii) and (b)(ii) of the Act. There was no issue that it was received by Tasbulk on 20 July 2012. By virtue of s61(5) of the Act, Tasbulk had the right to appeal against the grant of the permit "within 14 days after the day on which the notice was served … ". Tasbulk lodged its appeal on 3 August 2012.
The Council raised the issue of the appeal being lodged out of time, and the issue was canvassed at a preliminary conference involving all parties. A direction was made that Tasbulk have seven days in which to file an application to extend time, or alternatively to make submissions on the validity of the point taken. It chose the latter course. Written submissions were exchanged. Tasbulk asserted that the reference in s61(5) to "the day on which the notice was served" meant the day of receipt. It argued that the 14 day period allowed by s61(5) was reckoned from the day of receipt in accordance with s29(1) of the Acts Interpretation Act 1931, and the appeal was thus lodged within the required time.
The Acts Interpretation Act, s29(1), is as follows:
"29 Reckoning of time
(1) Where by or under any Act any period of time, dated or reckoned from a given day, act, or event, is prescribed or allowed for any purpose that period of time shall be reckoned exclusively of that day, or of the day of that act or event, as the case may be."
Royal Wolf and the Council argued that the 14 day period commenced on the day of posting, 19 July, with 2 August being the last day on which the appeal could have been lodged. It was said to be accepted law that by virtue of s84 of the Act, the "day on which the notice was served" referred to in s61(5), is the day on which the notice is posted. This submission was based on the proposition that with postal service under s84, service is effected upon posting; the date of receipt is irrelevant. The Tribunal accepted that argument and ruled that the last day for lodging the appeal was 2 August 2012. The Tribunal ruled that accordingly it had no jurisdiction to consider the appeal.
Section 84 of the Act is in the following terms:
"84 Service of notices or other documents
A notice or other document is effectively served under this Act if —
(a)in the case of a natural person, it is —
(i)given to the person; or
(ii)left at, or sent by post to, the person's postal or residential address or place or address of business or employment last known to the server of the notice or other document; or
(iii)sent by way of facsimile to the person's facsimile number; and
(b)in the case of any other person, it is –
(i)left at, or sent by post to, the person's principal or registered office or principal place of business; or
(ii)sent by way of facsimile to the person's facsimile number."
It is s84(b)(i), of course, which applies in this case. There was no dispute that the notice was sent by post to the company's address in accordance with that paragraph. Section 84 does not make any express reference to the time at which a notice sent by post is taken to have been served.
The sole ground of the appeal to this Court is that:
"The Resource Management and Planning Appeal Tribunal erred in fact and in law in determining the Appeal lodged by the Appellants was lodged out of time determining there was no valid appeal before the Tribunal."
Both Royal Wolf and the Council have filed notices submitting to the Court's jurisdiction. The principal issue to be determined is whether "the day on which the the notice was served" as referred to in s61(5) (and other similar subsections of s61), means, when service by post is utilised, the day on which the notice is posted or the day on which it is received. That determination involves an examination of the question of whether s84 of the Act only prescribes permissible means of service, or whether its provisions, at least as to service by post, also operate to determine the time at which such service is effected. For the reasons which follow, I take the view that the Tribunal was correct, and that the appeal should be dismissed.
The Tribunal's decision
After referring to the essential facts, the Tribunal referred to an earlier decision of the Tribunal which was relied on by the Council: N Newstead v Hobart City Council [2006] TASRMPAT 131. It was noted that Tasbulk sought to distinguish this decision. After setting out ss61(5) and 84 of the Act, the Tribunal continued:
"The Tribunal in N Newstead was in fact concerned with the same issue in the calculation of the fourteen day period within which a notice of appeal could validly be lodged. That was, whether service was effected on the date of receipt of the notice or on the date when the notice was posted
As the Tribunal stated at para 5:
'Mr Newstead says that he did not receive that letter until the 18th of April 2006 and that time for any appeal runs from that date. When he received it is irrelevant. Section 84(a)(ii) makes it plain that service is effected upon posting, and not receipt, of the notice. If any authority for this conclusion is needed it is to be found in the judgment of Zeeman J in Campbell v Brighton Council [1995] TASSC 59; (1995) 4 Tas R 430 at page 434.'
The Tribunal in S Jordan v Burnie City Council and Index Mineral Processors [2007] TASRMPAT 22 was similarly dealing with the issue as to whether the fourteen day appeal period ran from the date when the Appellant received his notification or the date when the notice was sent by post. The Tribunal in that case referenced the Newstead decision and a paragraph of Zeeman J in Les C Campbell v Brighton Council and Others (1995) 4 TAS Reports 430 where he stated at page 434:
'The appellant was the owner of land adjoining the land the subject of the application so that reg11(c) required that he be served with notice thereof. He was so served on 9 February 1994 when notice was sent to him by post. By virtue of the Act, s84(a)(ii) the notice was effectively served on the appellant upon it being placed in the post. The requirements of reg11(a) and (b) were satisfied on the same day.
A similar approach was adopted by the New South Wales Court of Appeal in Kyogle Shire Council v Muli Muli Aboriginal Land Council (2005) 62 NSWLR 361 which concerned the application of Section 710 of the Local Government Act 1993 NSW which is in similar terms to Section 84 of LUPAA. At paragraph 35, Tobias JA stated:
'There seems to me to be no reason why the act of posting in accordance with Section 710(2)(c) should not have the same effect as to the time of completion of service as do the other modes of service referred in the subsection. Provided the letter is prepaid and properly addressed in accordance with the paragraph, it is the act of posting that constitutes service and, once posted, the act of service is complete and the time of completion is self-evident.'
With respect to Mr Wright's reliance to Section 29 of the Acts Interpretation Act 1931, reference is made to paragraph 13 of the Tribunal's decision in S Jordan which stated as follows:
'13 A definition of service of notices and other documents is contained in Section 29AB of the Acts Interpretation Act 1931 which states that unless an Act provides otherwise service on a natural person shall be by either giving it to the person or "by leaving it at or sending it by post to, the person's residential or postal address or place or address of business or employment whichever is last known to the server of the notice or other document". (emphasis added) This provision is consistent with the terminology of Section 83 of LUPA in that it is the act of sending the notice by post that constitutes service and not the receipt of the document by the person.'
In line with the above decisions, it is the Tribunal's determination that service of the notice was effected on 19th July 2012 when the Council sent notice of its decision to the Appellant by post. The fourteen day period commences on the day after service was effected and concludes on Thursday 2nd August 2012. As the Notice of Appeal in this matter was filed on Friday 3rd August 2012, it was filed outside of the fourteen day timeframe specified in Section 61 of LUPAA and therefore does not constitute a valid appeal." [Original emphasis]
The appellant's submissions
As can be seen, in holding that s84 operates so that the date of posting is the date of service, the Tribunal relied on Campbell v Brighton Council (1995) 4 Tas R 430, and Kyogle Shire Council v Muli Muli Aboriginal Land Council (2005) 62 NSWLR 301. As to Campbell, counsel for Tasbulk argues that the Tribunal misinterpreted what Zeeman J said in the passage quoted and that in any event the decision is distinguishable, and argues that Kyogle Shire Council is also distinguishable because of the statutory provisions considered in that case.
Before the Tribunal, and in this appeal, Tasbulk argued that s84 of the Act was only concerned with the permissible means of service, and says nothing about determining the time of service. Service of the notice on Tasbulk by post was permissible under par(b)(i). That being so, it is argued that as the notice was in fact received on 20 July 2012, s29(1) of the Acts Interpretation Act applied. Computation of time under that section means that the last day of the 14 day period was 3 August 2012.
However, the submission assumes that in the case of service by post, the determination of the "day, act, or event" from which time is to be reckoned under s29(1), is simply when it occurs. Counsel for Tasbulk did not identify any provision which has that effect. There are obvious difficulties were the scheme created by ss61(5) and 84 to operate in that way. The period in which an appeal may be lodged may not commence for a long time after the notice was posted, or not at all.
Observations
Counsel for Tasbulk did not refer to s30 of the Acts Interpretation Act. That section provides as follows:
"30 Effecting service by post
(1) Where any Act, including this Act, authorizes or requires any notice or other document to be given, sent, served, or delivered by post, such giving, sending, serving, or delivery shall be deemed to be effected by properly addressing, prepaying, and posting the document as a letter, and, unless the contrary is proved, shall be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post."
In the scenario advanced by Tasbulk, the date of service would be simply a question of fact to be determined without the benefit of any presumptions. The application of both ss29 and 30 are dependent on s4(1) of the Acts Interpretation Act which is in the following terms:
"4 Application of Act
(1) Except where otherwise expressly provided, the provisions of this Act shall be applied in the interpretation and construction of every Act whenever passed (including this Act) and of all regulations made under any Act, except in so far as —
(a)any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act or regulation to be interpreted; or, in case of a regulation, with the true intent and object of the Act under which such regulation purports to have been made;
(b)the interpretation which any provision of this Act would give to anything contained in such particular Act or regulation is inconsistent with the context thereof or with any definition or interpretation contained in such particular Act or regulation or in the Act under which such regulation is made."
As s84 of the Act is a provision which authorises service by post, it must be the case that s30 of the Acts Interpretation Act applies unless the relevant provisions of the Act expressly or impliedly exclude its operation. Were s30 to apply, evidence would ordinarily be required to establish when a letter would be delivered in the ordinary course of post, where the contrary is not proved: Scope Data Systems Pty Ltd v Goman as representative of the Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176 per White J at 186 – 187.
Section 84 of the Act deals with service of notices and other documents under the Act. In this case I am not dealing with any issues of proof of service or assertions of non-delivery (as distinct from non-receipt[1]). The issue is the identification of "the day on which the notice was served" within the meaning of s61, by reference to the service provision – s84. When looking at the question of whether s84 of the Act is self-contained in the sense that it deals with both the means and time of service, with service by post taken to have been effected on the day of posting, the alternative to that proposition seems to be that the date of service by post is governed by s30 of the Acts Interpretation Act.
Discussion
Statutory interpretation – the provisions of the Act
[1] As to the distinction, see Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 95 – 97; Dwyer v Canon Australia Pty Ltd [2007] SASC 100 at [8] – [9].
In the context of the operation of s84, there are very few provisions in the Act which require or provide for service of notices or documents other than those which notify of a decision in respect of which a right of appeal arises under s61.[2] Predominantly then, but not exclusively, s84 deals with the service of notices, the act of service of which notices create rights of appeal. The Act contains 11 instances in which various persons are required to be served with notice of a decision or action.[3] Assuming single identities, the persons who are required to be served in any particular instance range from one to four.
[2] Without intending this to be exhaustive, it appears that they are s33(3) – notice of a decision as to whether or not to initiate an amendment of a planning scheme, s43E(1) – notice requiring additional information about an application for a permit when an amendment to a planning scheme is requested, s57(3) and (5A) – respectively notices of an application for a permit and the withdrawal of a representation, and s58A(3) – notice of a grant of a permit conditional upon entry into an agreement about use or development where the grantee is not the owner of land to which the agreement is to relate.
[3] Sections 43K(3), (4) and (5), 54(1) and (3), 56(3) and (4), 57(2) and (7), 58(3) and 59(8).
Section 61(3), (3A), (4), (5) and (6) create rights of appeal in persons notified under the 11 instances, and in each of those subsections of s61, the appeal is to be made "within fourteen days after the day on which notice was served" under the particular provision. It is in that context that the text of s84 needs to be examined. I must first look to the ordinary grammatical sense of the text, with assistance to be gained from context and purpose. It is that way in which Parliament's intention as to meaning is to be established.
Of immediate note is that unlike s29AB(1) of the Acts Interpretation Act[4], the introductory words of s84 are more than merely permissive. The words in s84 "A notice or other document is effectively served under this Act if …" are of great significance, particularly those which I have highlighted. The New Shorter Oxford Dictionary defines "effect" as including to "bring about (an event or result); accomplish (an intention or desire)". "Effectively" is an adverbial form of that meaning. According to the Macquarie Dictionary the adjectival word "effective", means "serving to effect the purpose; producing the intended or expected result". That a document "is effectively served" if a certain act is done, must mean that by doing that act in accordance with the provision, the end of service is achieved. That is the literal and ordinary interpretation of the words.
[4] "29AB Service of notices and other documents
Although neither s84 nor any other provision of the Act expressly provides that the provisions of the Acts Interpretation Act should not be applied in relation to s84, it seems to me that the language of s84 itself is such as to engage the exceptions set out in s4(1)(a) and (b) of the Acts Interpretation Act. In other words, the text and context of s84 impliedly exclude the application of s30 of that Act. On that basis, the appeal would fail. However, it is true that the introductory words in s84 should be given the meaning set out above, unless the consequences are seriously anomalous, and there is also the Acts Interpretation Act, s8A, to consider. That provides that in the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to one which does not. As I need to deal with arguments about the authorities, I will return to a discussion about the consequences of the obvious literal interpretation.
The authorities
I need to consider the case of Campbell v Brighton Council, to the extent that it bears on the operation of s84 of the Act. That authority seems to have been applied in the two earlier Tribunal cases referred to in the passage from the Tribunal's reasons which I have set out. The facts in Campbell's case were that an application for a permit for the construction of a house was made to the local council as the planning authority. Mr Campbell was the owner of adjoining land.
Section 57(3) of the Act provided that unless the planning authority required the applicant to give notice, the authority must give notice, as prescribed, of an application for a permit. The council did not summarily refuse the application as it was entitled to do under s57(2), and did not require the applicant to give notice. Notices under s57(3) of the Act were governed by the Land Use Planning and Approvals Regulations 1993, reg11. Although s57(3) used the words "gives notice" reg11(c) required notice by a planning authority to be "served" on the owners and occupiers of properties adjoining the land the subject of the application.
The council sent the notice to Mr Campbell by post on 9 February 1994 and, purportedly in accordance with s57(5), advised him that he was entitled to make representations relating to the application during a "period of fourteen (14) days from the 9th of February 1994". Section 57(5) of the Act actually provided that representations can be made "during the period of 14 days commencing on the date on which notice … is given under subsection (3) or such further period not exceeding 14 days as the planning authority may allow".
Mr Campbell lodged a representation on 23 February 1994. A permit was granted and Mr Campbell lodged a notice of appeal to the Tribunal. Some months later, a further application for a permit was made to the council for development of the same land, and effectively the same things happened. Notice was sent by the council to Mr Campbell by post on 8 June 1994, with advice that he was entitled to make representations during a "period of fourteen (14) days from 8th June 1994". On 22 June 1994, Mr Campbell made representations concerning the application. The permit was granted and he lodged a notice of appeal to the Tribunal.
The Tribunal ruled that it had no jurisdiction in relation to Mr Campbell's appeals because, as he had not made representations within the time required, he had no standing. The date on which the notice was sent in the post was treated as the date on which notice was given, so that the 14 day periods expired on the days before the representations were lodged. The Tribunal rejected an argument that under s22 of the Resource Management and Planning Appeal Tribunal Act 1993[5], the Tribunal had the power to excuse the failure to lodge the representations in time. Mr Campbell appealed to the Supreme Court.
[5] "22 General powers
The primary argument before Zeeman J was that the Tribunal had the power under s22 to excuse the appellant's failure. His Honour held against the appellant on that point. However, a second question was whether by the wording of the notices, the council had, pursuant to its power under s57(5), allowed the appellant a further period of one day. His Honour held that the word "from" in s57(5), was to be read as "after", and accordingly the computation of time under the provision excluded the day from which it was to be calculated. At 443 his Honour said:
"Each of the notices given to the appellant … was given in conformity with the requirements of s57(3) and reg11(e). Regulation 11(e) required that by each notice the appellant was advised of his right to make representations in accordance with s57(5). The nature and extent of that right may vary depending on whether or not the relevant planning authority has exercised its undoubted right to allow a period in excess of the prescribed period of fourteen days within which such representations are to be made. By giving a notice which informs the recipient that he has such a right, the last day for the exercise of which is the last day of the period of fifteen days commencing on the date on which notice of the application was given, a planning authority is to be taken as having allowed one day longer than the prescribed period."
Mr Campbell's case before the Tribunal and before Zeeman J contained an implicit acceptance of the proposition that notice under s57(3) had been given on the day on which the notice was posted. The point was not the subject of a ground of appeal and it does not seem to have been the subject of any argument. At 434, in the passage cited by the Tribunal (which for the sake of convenience I will set out again) his Honour said:
"The appellant was the owner of land adjoining the land the subject of the application so that reg11(c) required that he be served with notice thereof. He was so served on 9 February 1994 when notice was sent to him by post. By virtue of the Act, s84(a)(ii) the notice was effectively served on the appellant upon it being placed in the post." [Emphasis added]
In this case, counsel for Tasbulk submits that this passage does not apply to a notice under s57(7) because that is required to be "served", whereas s57(3) and (5) refer to notice being given. However, I have already explained that according to the relevant regulations which prescribe how notice is to be given, "service" is required. Counsel also submits that it cannot be derived from this passage that his Honour intended to say that s84 operated so that in the case of sending by post, the date of posting was deemed to be the date of actual service. However, as I have noted, that was the premise on which the entire proceedings were conducted. Moreover, Zeeman J said (at 442):
"The Act, s57(5) specifically provides that a representation is to be made during the period of fourteen days commencing on the date of which notice of the application is given. The Tribunal clearly was correct in holding that neither of the representations made by the appellant was made within this period because in each case the appellant made his representation on the day after the expiration of the relevant period." [Emphasis added]
It seems clear enough that although the question of the identification of the date of service was not argued, Zeeman J nonetheless specifically addressed it in the course of dealing with the arguments put. On that basis, I should follow his Honour's approach to s84 unless I am persuaded that it is "clearly or plainly wrong": see the discussion by Blow J in Motor Accidents Insurance Board v Young [2011] TASSC 26 at [8]. I am not able to conclude that Zeeman J was in error.
The same type of question as arises in this case was dealt with by the Court of Appeal in Kyogle Shire Council v Muli Muli Aboriginal Land Council (above). In that case, the court was concerned with s710 of the Local Government Act 1992 (NSW). Relevantly, that section provided that a notice required to be served on a person may be served by (amongst other ways) posting it by pre-paid letter addressed to the last known place of residence or business or post office box of the person to be served: s710(2)(c). The Interpretation Act 1987 (NSW), s76(1)(b), provided that if any Act authorised or required a document to be served by post, service could be effected by properly addressing, pre-paying and posting a letter containing the document, and in Australia, service was taken to be effected on the fourth working day after the letter was posted.
In the Kyogle Shire Council case, a rates notice was sent by post to the respondent's post box. The date of service was relevant to the required time for payment. The respondent also had a right to appeal from the levying of the rates within a certain time of the date of service. There was a dispute about whether the notice was served when posted or when actually put in the post office box a day later, or alternatively, either when the respondent actually came into possession of it two days after it was put in the post office box, or a further two days later in accordance with the deeming provision in the Interpretation Act. The judge at first instance held that the Interpretation Act, s76, applied and that service was effected on the last of the relevant dates.
The appeal was successful. Tobias JA, with whom Ipp JA and Brownie AJA agreed, posed the question of whether s710 of the Local Government Act constituted a code so that the Interpretation Act had no operation. Although lengthy, it is best to set out the relevant part of the response in full. At 368 – 369 [30] – [35], his Honour said:
"30Section 710(2) sets out seven modes of service. Section 710(4)(b) and (c) add a further two modes. It is important to appreciate, and was properly acknowledged by the respondent, that with the exception of personal service, none of the other eight modes requires the person to be served actually to receive the notice before service may be taken to be effected. By 'effected' I mean no more than that service is taken to have occurred in the manner prescribed. Nor, in my opinion, does it necessarily follow that because s 710(2) and s 710(4)(b) and (c) provide for differing modes of service, it is necessary to look outside the section to ascertain when service has been effected in the sense referred to.
31Thus, in Deputy Commissioner of Taxation v Taylor [1983] 2 NSWLR 139 at 143, Lee J 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'. This passage was applied by Stein JA, with whom Powell JA and Sheppard A-JA agreed, in Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 at 277 B-C.
32In my opinion, and with only one exception [the use of a document exchange] each of the modes of service referred to in s 710 contain within them all that is necessary to enable determination of when the particular mode of service has been completed or effected. Thus (leaving to one side the mode of service [by post] referred to in s 710(2)(c)) the mode of service referred to in
• subpara (b) is complete when the notice is left with a person apparently over the age of 14 years resident or employed at the relevant premises;
• subpara (d) is complete when the facsimile transmission referred to therein is successful in that actual transmission (which is instantaneous) has been achieved;
• subpara (e) is complete upon the fixing of the notice to the relevant part of the land or building;
• subpara (f) is complete at the moment of attachment of the notice to the vehicle;
• subpara 4(b) is complete at the time the newspaper containing the relevant advertisement is published; and
• subpara 4(c) is complete once the notice is actually deposited in the relevant [letter] box or receptacle.
33It is to be noted that s 710(4)(c) expressly states that 'service may be effected' by delivering the notice to the relevant premises and depositing it in the relevant box or receptacle. In other words, once those acts are performed, service has been 'effected' or is complete. It must logically follow that the date or time of service is when each of the stipulated acts has been performed.
34In my opinion, s 710(2) should be construed consistently with s 710(4)(c). The opening words '[t]he service may be' followed (except with respect to personal service) by the preposition 'by' in each of the following subparagraphs makes it clear that the subsection provides for service to be 'effected' by performing the act or acts specified therein.
35There seems to me to be no reason why the act of posting in accordance with s 710(2)(c) should not have the same effect as to the time of completion of service as do the other modes of service referred to in the subsection. Provided the letter is pre-paid and properly addressed in accordance with the subparagraph, it is the act of posting that constitutes service and, once posted, the act of service is complete and the time of completion is self-evident.
36I see no reason to distinguish between the mode of service provided by subpara (c) and those provided by the other subparagraphs. Thus it is the act of delivering the notice to the relevant premises and leaving it with the identified person that not only completes service in accordance with the mode referred to in subpara (b) but also determines when service is effected. It is the act of transmission of a facsimile referred to in subpara (d) that determines both the completion of that mode of service and the time in which it occurs. After the identification of a conspicuous part of the land, building or premises, it is the act of fixing the notice thereto that completes service and pinpoints the time of service under subpara (e). It is the act of publication that completes service in accordance with subs (4)(b) and identifies the time at which that act is complete. It is the depositing of a notice in the relevant box or receptacle referred to in subpara (4)(c) that completes or 'effects' that mode of service and identifies the time at which such service has been 'effected'.
37In my opinion, it follows that the act of posting a notice by pre-paid letter addressed in accordance with subpara (c) not only 'effects' or completes the act of service, but also identifies the time of service." [Emphasis added]
Tobias JA went on to reject the submission that service by post under s710 was governed by s76(1) of the Interpretation Act. Section 5(2) of that Act made its provisions applicable to any Act, "except in so far as the contrary intention appears in this Act or in the Act … concerned". Section 710(3) provided that in the case of a notice deposited in a box at, or left at, a document exchange, service was taken to have been effected two days after the day on which the notice was so deposited or left, until the contrary was proved. It was argued that s76(1)(b) dealt with the presumption of service where posting was the selected means, whereas s710(3) provided that different presumption in relation to those other means, leaving the effecting of service in accordance with other modes to be determined in accordance with the particular requirements.
At 370 [41] Tobias JA said that the submission could not be reconciled with the provisions of s710(8) which provided that "Proof by affidavit or orally that a notice has been posted in accordance with this section is conclusive evidence of service", the existence of that provision suggesting an intention to displace the statutory presumption in s76(1)(b). After noting that counsel were unable to explain why service by post had been singled out for special attention in s710(8), his Honour continued:
"42 … On reflection, however, it may well be that the draftsman of s 710(8) did have in mind s 76(1)(b) of the Interpretation Act. It is possible that the draftsman's adopted method of providing a 'contrary intention' for the purpose of s 5(2) of that 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 subs (8) and none has been suggested."
It was held that the terms of s710 were such that the contrary intention to the application of s76(1)(b) was made to appear.
Counsel for Tasbulk submits that Kyogle Shire Council is distinguishable on the basis that the Act contains no equivalent to s710(8) as referable to service by post under s84. That is true, but I do not see such an absence as affecting the conclusion that the act of posting a notice addressed in accordance with s84 effects or completes the act of service, and at the same time identifies the time of service. No doubt in any case where a proof of service by any means under s84 is required, proper evidence would need to be adduced. As I see it, Tobias JA said that it was possible that the explanation for the existence of s710(8), was that it was the draftsman's method of providing a "contrary intention" for the purposes of s5(2) of the Interpretation Act. His Honour said that there did not seem to be any other explanation, but I do not see these remarks as critical to the outcome in that case, and I do not see the issue as affecting the outcome of the case as it may be applied to s84 of the Act.
Further authority
In Deputy Commissioner of Taxation v Meredith (2007) 245 ALR 150, the issue concerned the service of a notice under the provisions of the Income Tax Assessment Act 1936 (Cth), relating to the recovery of penalties. Section 222AOE of that Act provided that the Commissioner was not entitled to recover from a person a penalty payable under the scheme until the end of 14 days after a notice setting out specified matters had been given to the person. Section 222AOF provided that the Commissioner "may give" persons such a notice by leaving it at, or sending it by post, to an address that appears from ASIC documents to be, or to have been within the last seven days, the person's place of residence or business. Section 29 of the Acts Interpretation Act 1901 (Cth) was in similar terms to s30 of the Tasmanian Acts Interpretation Act.
The issue was whether or not evidence of non-receipt of the notice, as opposed to non-delivery, was sufficient to rebut the presumption of delivery contained in s29. The majority (Ipp and Basten JJA) after discussing the distinction between non-delivery and non-receipt[6] held that the pre-condition to the entitlement to recover the penalty under s222AOE was satisfied if a notice was sent by post to the address as found in ASIC records. That is, s 222AOF provided a self-contained means of satisfying the pre-condition to recovery, and was not subject to the operation of s29 of the Acts Interpretation Act 1901 (Cth); delivery of the notice is deemed to be effected upon completion of the prescribed action of posting. At 169 – 170 [83] – [85], Basten JA (with whom Ipp JA agreed) referred to the Kyogle Shire Council case as providing "some further support for the commissioner's construction of 'the section providing for service'."
[6] See footnote 1.
Of more direct relevance to this case is Commissioner of Taxation v Soong [2009] NSWSC 495. The same scheme under the Income Tax Assessment Act arose for consideration, but the issue was essentially the same as in this case. The question was not one of non-receipt, but one of the time from which a 14-day period was to commence. Section 222AOG provided for the remission of the penalty if one of a number of things was done "within 14 days after the Commissioner gives the person" the s222AOE notice. The parties were agreed that the decision in Meredith had to be followed, with the result that the act of posting constituted the giving of the notice. However, it was argued that as the notice had actually been received, unlike in Meredith, the 14 days referred to in s222AOG was not to be calculated from the date of posting, but from the date of actual receipt.
At [42] – [43], Schmidt AJ noted that it had not been argued that the word "give" was not used consistently in the statutory scheme, and accepting that once the Commissioner gives a notice by posting it as permitted by s222AOF, the 14 day period fixed by s222AOG, ran from the date of posting, that being when the notice was given.
In the Act which I am considering, the relevant subsections of s61 and the introductory words to s84 all use the word "serve" or variants of it. As Schmidt AJ noted in Soong there is a presumption that the same words used in the one context are used in the same sense, although it is readily rebuttable: Pearce & Geddes, Statutory Interpretation in Australia, 7th ed at 119 – 122 [4.6] – [4.7]. If it is right that s84 operates so that the time of service is the time at which the notice is posted, the phrase, "the day on which notice was served" as appears in s61, would ostensibly have the same meaning. That brings me to a consideration of the consequences of the interpretation adopted by the Tribunal and that which I think to be the correct one.
Section 84 – a literal interpretation?
I previously mentioned the proposition that the literal and ordinary meaning of the introductory words to s84 is subject to the qualifications that it should not produce seriously anomalous consequences, or amount to an interpretation that does not promote the purpose or object of the Act, when a different interpretation which does is reasonably open.
As I have shown, looking across all of the provisions of the Act, s84 is predominantly concerned with the service of notices which give rise to rights of appeal. The planning authority and interested persons not adversely affected by the decision or action, have no interest other than they may have to respond to an appeal. As has been seen, the scheme of the Act culminating in various provisions of s61, is to grant to specified persons rights of appeal within 14 days after the day on which a notice was served on that person.
Section 84 prescribed four means of service in the case of a natural person. They are, giving it to the person, leaving it at the person's postal or residential address, or place or address of business or employment last known to the server, sending it by post to any of those addresses, or sending it by facsimile to the person's facsimile number. In the case of any other person, there are three prescribed means: leaving it at the person's principal registered office or principal place of business, sending it by post to any of those places, or sending it by way of facsimile to the person's facsimile number.
Leaving aside giving a notice to a natural person, it is obvious that with either a natural person or "any other person", the other means of service may not immediately bring the person's attention to the notice. The issue with postal service is self-evident. All that needs to be done is to comply with the requirement; that is, post it to one of the stated addresses[7]: Northumbrian Icecream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216 at [12]. In the case of facsimile transmissions, service is effected when the notice is sent to the person's number, at least in such a manner in which actual transmission is successful so as to provide a complete and legible copy, as if it were a letter sent in the ordinary way: NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26 at 36; Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (above) at 368 [32].
[7] Unlike s29AB of the Acts Interpretation Act, there is no requirement that the post be pre-paid, although it may be safe to imply such a requirement.
With s84 given its literal interpretation, and service under s61 having the same meaning, significant unfairness might be said to be created where there is a delay in the person actually receiving the notice sent. It will be recalled that in the Kyogle Shire Council case, the date of service determined the time for payment of the rates, and also the time in which an appeal could be lodged. In the arguments about the construction of s110, it was suggested that a conclusion that the act of posting a rate notice itself effected service, would lead to extreme unfairness to the ratepayer who did not actually receive the notice. The same observation applies to somebody who actually receives a notice after relevant time limits.
As to this argument, Tobias JA at 370 [43] conceded some element of unfairness where the service of a notice imposed obligations or conferred rights of which the addressee may be unaware in the event that he or she did not receive the notice due to some event outside the parties' control. His Honour continued:
"44However, as I have already observed, it is clear from the various modes of service referred to in s 710 (other than personal service) that service may be effected without there being any proof or requirement that the notice has actually been received by the person to be served. Thus, for instance, a young person (albeit over the age of 14) with whom a notice is left pursuant to the mode of service referred to in s 710(2)(b) may lose the notice and not tell anyone about it. Again, a building to which a notice is affixed pursuant to the mode of service referred to in s 710(2)(e) may be destroyed by fire before it comes to the attention of the addressee. Such events are inherently unlikely to occur and certainly would be very much the exception rather than the rule.
45The imagination of counsel can always proffer examples (often somewhat extreme) of unfairness, but these must be balanced against two considerations. First, the legislature has not made it a requirement of the service of council notices that they actually be received by the person to be served. Second, and certainly in the case of posting a notice, the chances of the letter containing the notice being destroyed or going astray before it reaches its destination should fairly be regarded as reasonably remote although, of course, not out of the question. In these circumstances, I do not regard the somewhat remote possibility that the post office at which the letter containing the notice is posted might be destroyed by fire or other catastrophe or, perhaps, the less remote possibility of industrial action delaying delivery as militating against what I regard as the clear intent of the legislature that the act of posting the notice in accordance with the requirements of s 710(2)(c), at least where proven, should constitute conclusive evidence that service by that mode has been 'effected' at the time the letter containing the notice is posted. It follows from that conclusion that in the present case the date of posting the subject notice constituted the date of its service, ... ."
Similarly, in Deputy Commissioner of Taxation v Meredith (above) the potential harshness of service being effected at the time of posting the notice was addressed by Basten JA at 167 [76] in the following terms:
"… A provision such as s 222AOF also places the risk of loss within the postal system on the intended recipient. That risk may be extremely low, but it is not non-existent; the potential for unfairness arises because the intended recipient has no control over the postal service. Nevertheless, the intended result is clearly expressed and must be given effect: [references omitted]."
See also Deputy Commissioner of Taxation v Soong (above) at [28] where Schmidt AJ noted that whilst the statutory scheme may be a harsh one, "that was the consequence of the approach which the legislature had adopted".
These comments can be applied to the situation under the Act. Parliament has by the introductory words of s84, and the use of the same language in s61, plainly shown an intention that service of notices under s61 is effected when specified steps for service in s84 are complied with. Adopting that approach gives a greater degree of certainty to the planning authority and to those who may be the subject of an appeal. The risk of unfairness was obviously seen to be outweighed by the need to avoid arguments about when notices would have been received in the ordinary course of post, or were otherwise received.
I do not regard the consequences of that approach to be seriously anomalous. The interpretation also seems to me to be one which is more likely to promote the purpose or object of the Act. Section 8A(2) of the Acts Interpretation Act says that the section applies whether or not the purpose or object is expressly stated in the Act. No doubt subsumed within the purpose or object of the Act as it relates to the appeal process, although not expressly stated in PtsI or II of Sch1 to the Act, would be to achieve certainty and order.
Outcome
Applying the outcome of the process of statutory interpretation which I have explained, and in accordance with the authorities which I have considered, I hold that s84 of the Act prescribes the means by which service may be effected and also identifies the time at which service is effected. Posting a notice in accordance with its terms completes the act of service and identifies the time of service. The phrase "the day on which notice was served" where it appears in s61 of the Act is to be construed as meaning the day fixed by the operation of s84. That phrase does not mean the day of receipt. The appeal is dismissed.
(1) If an Act authorizes, requires or permits a notice or other document to be served on a person, whether the expression 'serve', 'deliver', 'give' or 'send' or any other expression is used, without directing it to be served in a particular manner, the notice or document may be served —
(a)on a natural person —
(i) by giving it to the person; or
(ii) by leaving it at, or sending it by post to, the person's residential or postal address or place or address of business or employment whichever is last known to the server of the notice or other document; or
(b)on any other person by leaving it at, or sending it by post to, the person's principal or registered office or principal place of business."
(1) For the purpose of an appeal, the Appeal Tribunal may do all things necessary or convenient to be done for or in connection with the hearing and determination of the appeal.
(2) Where a person appeals, or purports to appeal, to the Appeal Tribunal and it appears to the Appeal Tribunal that —
(a)a failure to comply with a requirement of this Act or of another Act or law affects the appeal or purported appeal, or decision or purported decision, against which the appeal or purported appeal has been brought; and
(b)it would not be unjust or inequitable to exercise the powers conferred by this subsection —
the Appeal Tribunal may excuse the failure by ordering that, subject to such conditions as may be determined by the Appeal Tribunal, the requirement be dispensed with to the necessary extent."
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