Kyogle Shire Council v Muli Muli [2005] NSWCA 4 (16 February 2005)

CITATION: Kyogle Shire Council v Muli Muli [2005] NSWCA 4

FILE NUMBER(S):

40162/04

HEARING DATE(S): Wednesday 19 January 2005

JUDGMENT DATE: 16/02/2005

PARTIES:

Kyogle Shire Council

Muli Muli Local Aboriginal Land Council

JUDGMENT OF: Ipp JA Tobias JA Brownie AJA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L&E 31053/03

LOWER COURT JUDICIAL OFFICER: Cowdroy J

COUNSEL:

A: Mr T Robertson SC / Ms L Byrne / Mr Siva

R: Mr R Margo SC / Mr A McAvoy

SOLICITORS:

A: McInnes Legal Commercial Lawyers, Ballina

R: Zabow & Wise, Sydney

CATCHWORDS:

PRACTICE AND PROCEDURE - Service of council rates - Service by posting - Time at which service is effected - Whether s 710 Local Government Act 1993 provides for both the modes and time of service - Whether s 76(1) Interpretation Act 1987 applies to determine time of service

CONSTRUCTION AND INTERPRETATION - "Contrary intention" - Interpretation Act 1987 s 5(2)

LEGISLATION CITED:

Local Government Act 1993

Interpretation Act 1987

Interpretation Act 1897

DECISION:

(1) Appeal allowed

(2) Orders made by Cowdroy J on 6 February 2004 be set aside

(3) Declare that the respondent's appeal to the Land and Environment Court constituted by the filing of its Application on 3 September 2003 was made more than 30 days after service upon the respondent of the subject rates and charges notice

(4) Order that the Application filed on 3 September 2003 be dismissed

(5) Order the appellant pay the respondent's costs of the summons for leave to appeal and of the appeal

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40162/04

L&E 31053/03

IPP JA

TOBIAS JA

BROWNIE AJA

Wednesday 16 February 2005

KYOGLE SHIRE COUNCIL v MULI MULI LOCAL ABORIGINAL LAND COUNCIL

HEADNOTE

The appellant Council posted a rates notice on 31 July 2003 to the respondent Aboriginal Land Council at its post office box number. The operator of the Post Office placed the notice in the respondent's post office box on 1 August 2003. The respondent cleared its box and came into possession of the notice on 4 August 2003. If the date of service was 31 July or 1 August as the appellant Council contended the respondent was out of time in instituting an appeal to the Land and Environment Court pursuant to s 574 of the Local Government Act 1993 against the levying of the rate in respect of its land. If the date of service was 4 August 2003 or later, the respondent was within time.

Section 710 of the Local Government Act provided a number of modes of service of a rates notice, including "by posting the notice by prepaid letter addressed to ... the post office box of the person to be served" (s 710(2)(c)). The respondent's contention that service did not occur until 6 August 2003 was founded on s 76(1)(b) of the Interpretation Act 1987, which provided that if any Act required a document to be served by post, service was taken to have been effected on the fourth working day after the document was posted.

Cowdroy J of the Land and Environment Court accepted the respondent's submission that the notice was served on 6 August 2003, applying the provisions of s 76(1)(b) of the Interpretation Act. The appellant Council appealed to the Court of Appeal.

HELD by Tobias JA, Ipp JA and Brownie AJA agreeing, allowing the appeal:

1. Section 710 of the Local Government Act 1993, when read as a whole, is a code that provides not only for the permissible means or modes of service of rates notices but also for the time of service thereof. Each of the modes of service in s 710 contains within it all that is necessary to enable determination of when the particular mode of service has been effected. It followed that the act of posting a notice by prepaid letter addressed in accordance with s 710(2)(c) not only effected the act of service but also identified the time of service.

2. Accordingly, s 710 constitutes a "contrary intention" to the application of the Interpretation Act within the meaning of s 5(2) of that Act, with the consequence that s 76(1) had no application.

3. In the present case the date of posting the rates notice constituted the date of its service, namely, 31 July 2003 and the respondent was therefore out of time in instituting its appeal against the levying of the rate.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40162/04

L&E 31053/03

IPP JA

TOBIAS JA

BROWNIE AJA

Wednesday 16 February 2005

KYOGLE SHIRE COUNCIL v MULI MULI LOCAL ABORIGINAL LAND COUNCIL

Judgment

1 IPP JA: I agree with Tobias JA.

2 TOBIAS JA: One of the major, if not the major, sources of finance available to a New South Wales local government council is the income received from the making and levying of ordinary and special rates on rateable land within its area. Those rates are required by law to be levied on land by way of service of a rates and charges notice. It would be fair to say that such notices are normally served by way of post in accordance with s 710(2)(c) of the Local Government Act 1993 (the 1993 Act).

3 The date or time of service of the notice is of significance to both the council serving the notice as well as the person who under the 1993 Act is liable to pay the rates. In the case of the former, the time of service of the notice is relevant to the date upon which the rates become due and payable for it is from that date that interest accrues on any amount remaining unpaid. In the case of the latter, the date of service is relevant to the commencement of the period within which a limited right of appeal may be brought against the levying of the rate.

4 This appeal is of general importance to councils as it raises clearly the question of when a rates notice is taken to be served when it is posted to the person to be served in accordance with the statutory provision referred to. In the present case Kyogle Shire Council (the appellant) posted a rates notice on 31 July 2003 by way a pre-paid letter addressed to Muli Muli Local Aboriginal Land Council (the respondent) at its post office box number at Woodenbong Post Office. The licensee and operator of the Post Office placed the notice in the respondent's post office box on 1 August 2003. The respondent cleared its box and thereby came into possession of the notice on 4 August 2003. If the correct date of service is 31 July 2003 or 1 August 2003 as the appellant contends, the respondent was out of time in instituting an appeal to the Land and Environment Court against the levying of the rate in respect of its land. 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.

5 Cowdroy J of the Land and Environment Court held that the notice was not served until 6 August 2003, applying the provisions of s 76(1)(b) of the Interpretation Act 1987 (the 1987 Act). It is against that decision that the appellant appeals to this Court.

The facts

6 The appellant issued a number of rate notices in the name of the respondent for the rating year 1 July 2003 to 30 June 2004. It was common ground that those rate notices were posted on 31 July 2003 by delivering envelopes containing the notices to Kyogle Post Office. The address on the envelopes containing the notices was the respondent's post office box number at Wodenbong Post Office. All envelopes were prepaid. It is relevant to observe that the foregoing facts were established by the affidavit of Mr Arthur Piggott, Director of Corporate Services of the appellant, sworn 18 November 2003.

7 It was further established by the affidavit evidence of Ms Sonia Hoffman, the licensee and operator of the Wodenbong Post Office, that the subject rate notices were received at the post office on 1 August 2003 and, on that date, placed in the respondent's post office box. However, the respondent did not clear its post office box until the following Monday, 4 August 2003, on which date it physically received the notices.

8 On 3 September 2003 the respondent instituted an appeal to the Land and Environment Court purportedly pursuant to s 574(1) of the 1993 Act against the levying of one of the rates on the ground that its land was not rateable thereto. By notice of motion filed 20 November 2003, the appellant sought dismissal of the appeal pursuant to Part 13 rule 5(1) of the Supreme Court Rules 1970 (which had been adopted by Part 6 rule 1 of the Land And Environment Court Rules) upon the ground that the appeal was instituted outside the 30 day period prescribed by s 574(3) of the 1993 Act.

9 On 6 February 2004 the primary judge dismissed that notice of motion holding that the appeal had been instituted within time.

The relevant statutory regime

10 Pursuant to s 491 of the 1993 Act, a council may obtain income from, inter alia, rates that are either ordinary or special rates: s 492.

11 Special rates are made and levied pursuant to s 495 of the 1993 Act although such a rate relating to water supply is levied pursuant to s 552. We were informed that in the present case the appeal was instituted against a special rate levied pursuant to s 495. However, as it appears that the rate in question was described as the "Muli Muli Water Supply Special Water Rate", it is more probable that it was levied pursuant to s 552. However, nothing turns upon this.

12 Section 546(1) of the 1993 Act provides that:

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

13 Section 560(1) provides that the owner for the time being of land on which a rate is levied is liable to pay the rate to the council. Accordingly, the respondent as the owner of the relevant land became liable to pay the subject rate. If the notice was served on or prior to 1 August, then s 552(3) provided that the first instalment of the rates was payable by 31 August whereas, if the notice was not served by 1 August, s 552(4) provided that the relevant instalments were payable by 30 November or

"by the day that is 30 days after service of the notice, whichever is the later."

14 Pursuant to s 556 interest accrues on rates that remain unpaid after they become due and payable.

15 Section 574 provides for an appeal to the Land and Environment Court by a person who has an estate in the land in respect of which the rate notice is served against the levying of the rate on the ground that the land or part thereof is not rateable or not rateable to the particular rate.

16 Of particular relevance to the present appeal is s 574(3) which provides as follows:

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

17 Chapter 17 of the 1993 Act provides the means for enforcement of the Act and Division 3 of Part 2 of Chapter 17 contains provisions relating to notices by a council. Section 710 is headed "Services of notices on persons". It is the critical provision for the purpose of resolving this appeal and I set it out in full:

"(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:

(a) personal, or

(b) by delivering the notice at or on the premises at which the person to be served lives or carries on business, and leaving it with any person apparently above the age of 14 years resident or employed at the premises, or

(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

(d) by facsimile transmission to a number specified by the person (on correspondence or otherwise) as a number to which facsimile transmissions to that person may be sent, or

(e) by fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person, or

(f) in the case of an offence involving a vehicle, by attaching the notice to the vehicle, or

(g) if the person to be served maintains a box at a document exchange established in New South Wales, by depositing the notice in that box or leaving it at another such exchange for transmission to the first mentioned exchange for deposit in that box.

(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.

(4) In addition to the means of service prescribed by subsection (2):

(a) in any case where the person to be served is, or after inquiry appears to be, absent from New South Wales, the service may be on the agent of that person by any of the means prescribed by subsection (2)(a), (b), (c) or (d), and

(b) in any case where the land, building or premises are unoccupied and the owner or the owner's address or place of residence is not known to the council, the service may be by advertisement in the approved form published in a newspaper circulating in the district in which the land, building or premises are situated, and

(c) in the case of the service of a rates and charges notice, the service may be effected by delivering the notice to the premises at which the person to be served lives or carries on business and depositing it in a box or receptacle at, on or in the proximity of those premises that is provided, used or designed for the reception of letters addressed to that person.

(5) The notice may be addressed by the description of "rateable person" or "owner" or "occupier" of the land, building or premises (naming or otherwise sufficiently indicating the same) in respect of which the notice is served, and without further name or description.

(6) The notice may be wholly printed, wholly written or partly printed and partly written.

(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) For the purposes of this section, a justice of the peace is authorised to take and receive an affidavit, whether any matter to which the affidavit relates is or is not pending in any court."

18 The respondent's case before the primary judge was that service of the subject rate notice did not occur (to use a neutral term) until the expiration of the fourth working day after the letter containing the notice was posted on 31 July. That day was 6 August. This contention was founded on s 76(1) of the 1987 Act which I also set out in full:

"(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."

The decision of the primary judge

19 The primary judge held (at [24]) that s 710(2)(c) of the 1993 Act only made provision for service by post and not for the time at which service by that means was deemed or taken to have been effected. In other words, his Honour considered that s 710(2) and, in particular, sub-paragraph (c) thereof, was directed to the mode of service of notices and not to the time of service. Accordingly, it was necessary to look elsewhere in order to determine the date upon which service was effected.

20 The primary judge resolved this issue by reference to s 76(1)(b) of the 1987 Act. Although he was conscious of the provisions of s 5(2) of that Act which provided for the application of the 1987 Act

"except insofar as the contrary intention appears ... in the Act ... concerned",

his Honour considered (at [30]) that

"since s 710(2)(c) of the [1993] 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 [1987 Act]."

21 Having found that there was no "contrary intention" within the meaning of s 5(2) of the 1987 Act, the primary judge turned his attention to whether

"evidence sufficient to raise doubt [had been] adduced to the contrary"

within the meaning of that expression in s 76(1)(b).

22 Having considered that there was nothing in the 1987 Act which suggested the nature of the "doubt" to which reference is made in that expression, his Honour considered that he should draw the inference that the qualification to the presumption could be utilised in instances in which the posted rate notice was, in fact, never received. He thus expressed the view (at [29]) that:

"[t]he words in s 76(1)(b) of the [1987] Act 'unless evidence sufficient to raise doubt is adduced to the contrary' is intended to apply to circumstances such as those prevailing before Denning M R."

23 The reference to Lord Denning was to his Lordship's decision in Hewitt v Lester Corporation [1969] 1 WLR 855 where it was held that the presumption 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, was rebutted when a letter was returned and marked "gone away".

24 The primary judge summarised his conclusions in the following passage of his judgment:

"31. The provision of s 76(1)(b) of the [1987] 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 [1987] Act."

25 It is apparent from the above passage that his Honour considered that it was not open to the appellant to adduce evidence sufficient to raise a doubt within the meaning of s 76(1)(b) unless that evidence raised a doubt as to the receipt of the letter by the addressee. In particular, it is apparent that he considered that the adducing of evidence to the effect that the letter was delivered to the relevant address or, in the present case, the nominated post office box, was not sufficient to displace the statutory presumption. The appellant challenges that interpretation of the sub-section.

The issues on the appeal

26 The appellant submits that s 710 of the 1993 Act, when read as a whole, is a code that provides not only for the permissible means or modes of service of notices but also for the time of service thereof. Accordingly, as the section covers the field (as it were), it constitutes a "contrary intention" within the meaning of s 5(2) of the 1987 Act with the consequence that s 76(1) of that Act has no application to the service of notices pursuant to s 710.

27 Alternatively, the appellant submits that in the event that s 76(1)(d) of the 1987 Act is applicable to the present case, evidence "sufficient to raise doubt ... to the contrary" at the very least includes evidence of the date of actual delivery of the letter containing the relevant notice to the place to which it is addressed.

28 In response, the respondent submits that s 710 is, except for sub-section (3), confined to making provision for the means of service of a notice and says nothing as to the time at which such service is effected. Accordingly, the statutory presumption in s 76(1)(b) of the 1987 Act applies with the consequence that service is presumed to have been effected on the fourth working day after the date of posting of the subject notice.

29 The respondent further submits that the "doubt" in respect of which evidence may be "adduced to the contrary" is, in the case of sub-paragraph (b) of s 76(1), confined to evidence raising doubt as to the actual receipt by the addressee of the relevant document. This is to be contrasted with sub-paragraph (c) in respect of which the presumption operates when the letter containing the document would have been delivered in the ordinary course of post so that the "doubt" referred to in that paragraph concerns doubt as to delivery as distinct from receipt.

Does s 710 of the 1993 Act constitute a code?

30 Section 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 (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.

31 Thus 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] NSWSC 64; (1998) 43 NSWLR 271 at 277 B-C.

32 In my opinion, and with only one exception, 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 referred to in s 710(2)(c)) the mode of service referred to in

· sub-paragraph (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;

· sub-paragraph (d) is complete when the facsimile transmission referred to therein is successful in that actual transmission (which is instantaneous) has been achieved;

· sub-paragraph (e) is complete upon the fixing of the notice to the relevant part of the land or building;

· sub-paragraph (f) is complete at the moment of attachment of the notice to the vehicle;

· sub-paragraph 4(b) is complete at the time the newspaper containing the relevant advertisement is published; and

· sub-paragraph 4(c) is complete once the notice is actually deposited in the relevant box or receptacle.

33 It 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.

34 In 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 sub-paragraphs makes it clear that the sub-section provides for service to be "effected" by performing the act or acts specified therein.

35 There 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 sub-section. Provided the letter is pre-paid and properly addressed in accordance with the sub-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.

36 I see no reason to distinguish between the mode of service provided by sub-paragraph (c) and those provided by the other sub-paragraphs. 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 sub-paragraph (b) but also determines when service is effected. It is the act of transmission of a facsimile referred to in sub-paragraph (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 sub-paragraph (e). It is the act of publication that completes service in accordance with sub-section (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 sub-paragraph (4)(c) that completes or "effects" that mode of service and identifies the time at which such service has been "effected".

37 In my opinion, it follows that the act of posting a notice by pre-paid letter addressed in accordance with sub-paragraph (c) not only "effects" or completes the act of service, but also identifies the time of service.

38 The sole exception to the foregoing is to be found in s 710(3). It is common ground that that provision is directed to the mode of service referred to in s 710(2)(g). The respondent submitted that it also related to the mode of service referred to in s 710(4)(c) but I would not accede to that submission. It is thus clear that the legislature has expressly addressed its mind to providing an exception in the case of service by way of a document exchange which, without that exception, would otherwise result in the service being complete and the time of service being identified by the act of depositing the notice in the relevant box at the exchange.

39 Thus it is noteworthy that that is the only exception to what would otherwise, as a matter of both construction and common sense, be the completion of the act of service "by" delivering, posting, transmitting by facsimile, fixing, attaching, publishing, and depositing the notice in accordance with the modes referred to in the various sub-paragraphs of s 410(2) and (4). In my opinion, this lends support to the proposition that it was not intended by the legislature to differentiate between the different modes in s 710(2) and (4) as to the time of service except with respect to the mode referred to in sub-paragraph (g).

40 It may well be that one should assume that the legislature was fully aware of the provisions of s 76(1) of the 1987 Act when it came to enacting s 710 of the 1993 Act. It was thus submitted by the respondent that there was no inconsistency in applying s 76 of the 1987 Act to the mode of service referred to in s 710(2)(c) of the 1993 Act. It was contended that s 76(1)(b) dealt with the presumption of service where posting was the mode of service selected whereas s 710(3) provided a different presumption regarding service where the selected mode was that referred to in sub-paragraph (g), leaving the effecting of service in accordance with the other modes referred to in s 710(2) and (4) to be determined in accordance with the requirements of those sub-paragraphs.

41 However, such a submission cannot in my opinion be reconciled with the provisions of s 710(8) which bears repetition:

"Proof by affidavit or orally that a notice has been posted in accordance with this section is conclusive evidence of service."

42 During argument counsel were asked whether they could explain why the legislature saw it as necessary to confine s 710(8) to service by post and why it was not extended to the other modes of service. Understandably, counsel were unable to explain why service by post had been singled out for special attention. On reflection, however, it may well be that the draftsman of s 710(8) did have in mind s 76(1)(b) of the 1987 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 sub-section (8) and none has been suggested.

43 The respondent pressed upon us the argument that to conclude that the act of posting a rate notice "effected" its service would constitute extreme unfairness to the rate payer who never actually received the rate notice because, for instance, the post office where the letter is posted is destroyed by fire before the letter is delivered to its nominated address or where it is not declared due to industrial action. Obviously, there is some element of unfairness where the service of a notice (be it a rate notice or some other council issued notice) imposes obligations or confers rights of which the addressee may be unaware in the event that he or she does not receive the notice due to some event outside the parties' control.

44 However, 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.

45 The imagination of counsel can always proffer examples (often somewhat extreme) of unfairness, but these must be balanced against two considerations. Firstly, 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. Secondly, 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, namely, 31 July 2003.

46 Before concluding this aspect of the matter, I should refer to the decision of this Court in McClelland v Amcil Industries Pty Limited [1983] 1 NSWLR 615 which was relied upon by the primary judge to support the proposition that s 710(2) and (4) were concerned only with stipulating the means by which service might be effected and not the time at which it was effected.

47 McClelland concerned s 37 of the Consumer Claims Tribunal Act 1974 which was in the following terms:

"Where, by or under this Act, the registrar is required to cause any notice or other document to be given to any person, the posting of the notice or document by pre-paid mail to that person at his or last known address shall be deemed to be sufficient service".

48 Hutley JA (at 618 E-F) considered that s 37 was directed to both the mode and time of service. Samuels JA was of a contrary view, while the third member of the Court, Hope JA, did not deal with this particular issue. At 619 C-E, Samuels JA said this:

"I do not consider that this section does more than authorise service by pre-paid mail as a mode of service alternative for example to personal service. All that it says is that service by post in the manner specified shall be deemed to be sufficient service. There are a number of similar provisions in other Acts and rules, for example, the Justices Act, 1902, s 63(2); the Supreme Court Rules, 1970, Pt 9, r 4(i)(b); and the District Court Rules, 1973, Pt 52, r 15.

Unless the provision which authorises service by post itself includes a stipulation as to when service by that means shall be regarded as having been effected, as the Supreme Court Rules do, in order to determine when service occurs, it is necessary to turn to the Interpretation Act, 1987, s 27(1). The terms of that subsection, it seems to me, support the construction of s 37 which I suggest, by drawing a clear distinction between service, as the means by which an endeavour is made to draw a document to the attention of the proposed recipient, and the time at which the recipient becomes aware or is deemed to become aware of it."

49 In Elsediek v Barri, 30 April 1987 (unreported), David Hunt J adopted the views expressed by Samuels JA in McClelland rather than those of Hutley JA with respect to the proper interpretation of s 37 of the Consumer Claims Tribunal Act. In my opinion, the remarks of Samuels JA in McClelland, confined as they are to the construction of s 37 of the Consumer Claims Tribunal Act, are inapplicable to a detailed provision such as s 710 of the 1993 Act. Although s 27(1) of the Interpretation Act 1897 (the predecessor of s 76 of the 1987 Act) applied "unless the contrary intention appears", it was apparently not suggested that such an intention was evidenced by the Consumer Claims Tribunal Act generally or by s 37 in particular.

50 In my opinion, that is not so in the present case where s 710 evidences a "contrary intention" within the meaning of s 5(2) of the 1987 Act.

51 Accordingly, in my respectful view the primary judge erred when he held that service of the subject rate notice was effected four working days after 31 July 2003 (being the date of its posting) with the result that it was taken to have been served on 6 August 2003. In my opinion, the notice was served on 31 July 2003. The 30 days within which the respondent could appeal to the Land and Environment Court against the levying of the rate the subject of the notice therefore expired on 31 August 2003. As the appeal was not filed until 3 September 2003, it follows that it was filed out of time.

52 In view of the conclusion to which I have come, it is unnecessary to deal with the appellant's alternative argument that if s 710 is not a code so that s 76(1)(b) of the 1987 Act applies to define the time at which service by post pursuant to s 710(2)(c) is taken to have been effected, it has been displaced by "evidence sufficient to raise doubt ... adduced to the contrary". Resolution of this issue requires consideration of whether the statutory presumption may be rebutted by evidence that the letter containing the notice was in fact delivered on 1 August 2003 or whether the relevant doubt is confined to the adducing of evidence with respect to the letter's receipt by its addressee. The primary judge considered that such evidence was confined to the non-receipt of the letter containing the document. In the circumstances, it is unnecessary to resolve finally this issue but my failure to do so should not be construed as necessarily indicating my agreement with the view expressed by his Honour.

Conclusion

53 In my opinion the following relief should be granted:

(1) Appeal allowed;

(2) Orders made by Cowdroy J on 6 February 2004 be set aside;

(3) Declare that the respondent's appeal to the Land and Environment Court constituted by the filing of its Application on 3 September 2003 was made more than

30 days after service upon the respondent of the subject rates and charges notice;

(4) Order that the Application filed on 3 September 2003 be dismissed;

(5) Order the appellant pay the respondent's costs of the summons for leave to appeal and of the appeal.

54 BROWNIE A-JA: I agree with Tobias JA.

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LAST UPDATED: 17/02/2005