appellant. 1. Extend the time for lodging the Notice of Appeal to 3 February 2020. 2. Appeal allowed. 3. Set aside the order made in each of the applications on 11 November 2019, as amended on 20 November...
Key principles
Where initiating process issued by a State tribunal is served by post on a company in another State, service under the Service and Execution of Process Act 1992 (Cth) (SEPA)...
Section 52(2) of the SEPA prevents the tribunal from taking a step in the proceeding before the end of the 21 day period after service (unless a shorter period is allowed); where...
A State tribunal has no power to dispense with or override the SEPA requirements governing inter‑state service; compliance with SEPA is a jurisdictional precondition to the...
An extension of time to lodge an internal appeal may be granted even where lodgement is out of time, where the question raises jurisdictional error under SEPA and the interests...
Issues before the court
Did the Tribunal have jurisdiction to make orders on 11 November 2019 when initiating process for the applications had been served by post on the...
Plain English Summary
The Appeal Panel set aside Tribunal orders made after a hearing held in the caravan park operator's absence because the operator, a Queensland company, had not been validly served in accordance with the federal Service and Execution of Process Act. There was no evidence proving the day the initiating documents were posted to the company's registered office in Queensland and no showing that the 21 day period under SEPA had elapsed before the Tribunal proceeded. Because the Tribunal lacked jurisdiction, the appeal was allowed, the orders set aside, and the matters remitted for rehearing. The Panel also granted an extension of time to lodge the late appeal because of the jurisdictional importance and merits of the issue.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Should the Appeal Panel grant an extension of time to lodge an internal appeal given the appellant lodged the Notice of Appeal late?
Did the Tribunal's later amendment under s 63 (to correct the name of the respondent) cure the earlier jurisdictional defect?
Cited legislation
7 cited instruments linked from this judgment.
Deep Dive
2,058 words · generated 19/07/2026
What happened
Background
Six residents of the Tweed River Hacienda Holiday Park (the respondents) applied to the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, seeking access to electricity supplier invoices from the caravan park operator under s 83 of the Residential (Land Lease) Communities Act 2013 (NSW) (the RCA). The operator is Hacienda Caravan Park Pty Ltd (the appellant), a company with its registered office in Southport, Queensland [Overview 1–2].
The tribunal hearing and orders
The matters were listed for hearing at Mullumbimby on 11 November 2019. The hearing proceeded in the operator's absence and the Tribunal made orders on that date requiring production of the electricity account for a specified period [Relevant circumstances]. The orders were later amended on 20 November 2019 to correct the name of the respondent (an amendment under s 63 of the NCAT Act).
Service and discovery of the documents
The initiating documents included Notices of Conciliation and Hearing (dated 29 October 2019), and Form 4 notices under the Service and Execution of Process Regulations 2018 (Cth) dated 25 October 2019. These were sent to the appellant's registered office in Southport, Queensland. The appellant contends it first received the package on 13 November 2019 and that it could not have attended the 11 November hearing because it had not then received the documents. The Tribunal records show “received” date stamps of 13 November 2019 on the copies of the notices included in the Tamworth registry files [Relevant circumstances].
Post‑hearing procedural steps
On 13 November 2019 the appellant emailed the Tamworth registry asserting non‑receipt prior to the hearing and requesting re‑listing. The registry replied on 13 November 2019 acknowledging the communication and advising on appeal avenues. The orders were amended on 20 November 2019. Renewal proceedings were commenced on 26 November 2019 for non‑compliance. The appellant attended a directions hearing on 16 January 2020, informed the Tribunal it had not received notice before 11 November, and was then given time to lodge an appeal and stay application by 24 January 2020. The appellant lodged a Notice of Appeal (dated 24 January 2020) which was received by the registry on 3 February 2020. The Appeal Panel later extended the appeal period and allowed the appeal on jurisdictional grounds [Relevant circumstances; Extension of time; Orders on appeal].
The core legal contest
The appeal turned on whether inter‑state service of the initiating process had been effected in accordance with the Service and Execution of Process Act 1992 (Cth) (SEPA): in particular, whether the appellant had been validly served prior to the 11 November 2019 hearing such that the Tribunal could properly proceed at that date. If service was not proved and the 21 day waiting period in s 52(2) had not elapsed, the Tribunal would lack jurisdiction to take a step in the proceeding and the orders made on 11 November would be void.
Why the court decided this way
Statutory framework
The Appeal Panel analysed the SEPA provisions that govern service of initiating process of tribunals in another State. Key provisions applied were:
s 9: service on companies is effected by leaving at, or sending by post to, the company's registered office;
s 11(4): service by post on a company is taken to be proved only if it is shown (inter alia) when the document was posted (the day on which it was posted);
s 52(2): if the law of the place of issue does not provide for a procedure to enter an appearance, no step is to be taken in the proceeding before the end of 21 days after service (unless a shorter period is allowed);
Acts Interpretation Act s 29: where service is by post, absent contrary proof it is deemed effected at the time the letter would be delivered in the ordinary course of post.
The Tribunal has no power to dispense with the operation of the SEPA provisions; compliance is a precondition to extraterritorial jurisdiction [The SEPA issues 3–6, and text of SEPA provisions included in Reasons].
Application to the facts
The Tamworth registry files contained copies of notices stamped “received” on 13 November 2019 and documents dated 25 and 29 October 2019. The Appeal Panel focused on the lack of evidence demonstrating the day on which the initiating documents were posted to the company as required by s 11(4)(b) SEPA. There was no affidavit or other proof under s 11(5) establishing posting or the ordinary course delivery time under Acts Interpretation Act s 29. The registry files did not show the practice of posting, nor could the panel infer the day of posting from the dates on the documents alone. As a consequence, service by post could not be proved to have occurred before the 11 November hearing. Because s 52(2) required a 21 day wait after valid service before a step could be taken (and no application had been made to shorten that period), the Tribunal had acted before it could lawfully take a step in the proceedings. That made the 11 November orders void for want of jurisdiction [The SEPA issues, paras discussing s 11 and s 52].
Why other arguments failed
The respondents relied on submissions about procedural fairness and the appellant's later attendance and participation. The panel distinguished those arguments from jurisdictional SEPA compliance: procedural fairness remedies do not remedy defective statutorily required inter‑state service. The later amendment under s 63 to correct an "obvious error" (the respondent’s name) did not cure the jurisdictional defect which arose because the Tribunal had acted before valid service was proved [The SEPA issues; Remaining Grounds of Appeal].
Conclusion on extension of time
Although the appellant’s delay in lodging the internal appeal was substantial and explanations unsatisfactory, the Appeal Panel treated the SEPA issue as jurisdictional and of sufficient merit that interests of justice warranted extension of time to permit the appeal to be heard. The panel relied on the principles for extensions set out in Jackson v NSW Land and Housing Corporation and related authorities, considering length of delay, reasons, prospects of success, and prejudice [Extension of time in which to appeal].
Before and after state of the law
Before
SEPA has long been understood to govern inter‑state service of tribunal process and to impose evidentiary requirements where service is by post. The Acts Interpretation Act s 29 provides presumptions as to the timing of postal service but allows rebuttal by evidence.
After
This decision reinforces that for tribunal initiating process, particularly where service is effected on corporate registered offices interstate, strict compliance with SEPA’s proof requirements (notably s 11(4)(b) showing the day of posting, or appropriate affidavit proof under s 11(5)) is necessary; absent that proof, an interstate tribunal risks acting without jurisdiction. The decision underscores that registries should preserve evidence of posting or mailing practices and that parties relying on inter‑state postal service must prove posting date and delivery timing or seek orders under s 52 to shorten the 21 day period.
Practical consequence
Tribunals and litigants should not assume that stamping a document “received” on a particular date discharges the SEPA proof obligation. Where inter‑state service by post is used, practitioners should obtain contemporaneous proof (eg postal receipts, affidavits of posting, or use tracked post) and registries should record posting dates where they arrange dispatch.
Key passages with plain-English translation
Court passage (plain language)
"Service on the company in Queensland by post before the hearing on 11 November 2019 could not be taken to be proved ... because there was no evidence as to the day on which the documents ... were posted."
Translation: The Tribunal had no evidence of when the papers were put in the mail; without that, the federal service law does not treat the company as having been validly served before the hearing.
Court passage (plain language)
"Section 52(2) ... a step is not to be taken in the proceeding before the end of a period of 21 days ... after service of the process."
Translation: After someone is served under the federal rules, you normally must wait 21 days before the tribunal does anything further, unless that waiting period is shortened by the tribunal on application.
Court passage (plain language)
"No power to dispense with the operation of the SEPA provisions has been conferred on the Tribunal."
Translation: The Tribunal cannot ignore or override the SEPA requirements; they must be followed for the Tribunal to exercise jurisdiction over someone in another State.
What fact patterns trigger this precedent
Initiating process issued by a State tribunal is served by post on a company whose registered office is in another State, and no contemporaneous proof of posting or delivery timing exists.
A tribunal proceeds to hear and determine the matter within 21 days of the alleged posting dates, and no application was made (or order made) shortening that 21 day period under s 52(2).
Registry records show an apparent late receipt stamp, or there is dispute about whether the defendant received notice prior to hearing.
Cases where appellants seek to challenge ex parte or in‑absentia orders on grounds of defective inter‑state service and want orders set aside.
In those fact patterns, Hacienda Caravan Park v Mountfort establishes that a failure to prove the day of posting and delivery timing under SEPA will likely invalidate tribunal action taken before the statutory period has expired.
How later courts have treated it
This decision is an Appeal Panel decision of the NSW Civil and Administrative Tribunal Appeal Panel. It applies SEPA strictly to tribunal process and should be followed by tribunals and practitioners handling interstate service issues in NSW. It cites established appellate principles on extension of time and postal service evidential rules; those authorities (eg Brennan, Advanced Mining) are used to support the requirement for concrete proof of posting/delivery. Practitioners should expect lower tribunals to adhere to the approach of requiring compliance with s 11 proof requirements when interstate service is used.
Note: As this is a 2020 Appeal Panel decision, subsequent appellate treatment in higher courts would need to be reviewed to determine whether it has been applied, distinguished or doubted; practitioners should check current authorities and any amendments to SEPA or regulations affecting proof of service. The decision itself cites and applies existing authorities on extensions and on proof of posting.
Still-open questions
Minimum acceptable proof for s 11(4)(b): The panel emphasised the absence of evidence of the day of posting. What degree and form of contemporaneous evidence (eg registry internal mailing logs, Australia Post tracking data, affidavits of a registry officer of the day of posting) will be sufficient to meet s 11(4)(b) and s 11(5) remains practically significant. Practitioners will need clear guidance on whether a registry's routine post date stamping, or an unsigned office memo, suffices.
Electronic service and SEPA/regulatory fit: The case concerned post to a registered office. With growing use of electronic service mechanisms, questions remain about how SEPA's postal proof requirements interact with electronic methods authorised by corporations law provisions or tribunal rules; the decision reminds that s 109X of the Corporations Act does not apply to SEPA service under s 9 (see judgment), so clarity on electronic alternatives is needed.
Interaction with natural justice remedies: The panel distinguished SEPA jurisdictional defects from ordinary natural justice complaints. But the practical interplay where a litigant both claims non‑receipt and alleges denial of natural justice may require further elucidation: for instance, when defective SEPA service is alleged but the respondent later participates in the matter, when will the Tribunal be able to regularise the proceedings without rehearing?
Registry systems and procedural fairness: The decision places emphasis on registry practice and record‑keeping. Whether tribunals will be required to adopt particular mailing or proof standards as standard operating procedure to avoid jurisdictional challenges remains to be seen.
Takeaway
For tribunals and practitioners: treat SEPA proof requirements as jurisdictional gates. When serving corporate respondents interstate by post, obtain and preserve firm proof of the day of posting and, where possible, proof of delivery timing. If a tribunal proceeds within the 21 day period without valid proof, orders risk being void and the matter may have to be reheard.
Judgment (9 paragraphs)
[1]
Overview
Six residents of the Tweed River Hacienda Holiday Park, a residential community in northern New South Wales, the respondents to this appeal, brought separate applications at the same time in the Tribunal seeking access to the invoices disclosing the charges levied by the electricity supplier to the operator of the community. They obtained an order in respect of such charges pursuant to section 83 of the Residential (Land Lease) Communities Act 2013 (NSW) (the RCA).
The order was made on 11 November 2019 following a hearing that day that took place in the absence of the operator of the community park, the appellant company, which now appeals against the making of that order. It seeks that the order be set aside.
The appellant is a company having its registered office in Queensland. Service of the Tribunal application and notice of hearing purported to be effected at the appellant's registered office by sending the documents in the post.
The appeal was lodged out of time. However, because of our conclusion that the requirements under the Service and Execution of Process Act 1992 (Cth) (the SEPA) concerning service out of New South Wales and the time before the Tribunal takes a step in the proceedings have not been satisfied, we have decided that an extension of time in which to lodge the appeal should be granted and the appeal should be allowed.
[2]
Relevant circumstances
The relevant circumstances concerning each of the applications and the appeal are the same. We will address them by reference only to those concerning Mr Mountfort, who is one of the respondents.
Section 83 of the RCA provides:
83 Access to information about utility charges
The operator of a community must provide a home owner with reasonable access to bills or other documents in relation to utility charges payable by the home owner to the operator.
Following an unsuccessful attempt to obtain documents concerning his electricity charges, Mr Mountfort commenced proceedings in the Tribunal. In his application the address given for the appellant was an address in Southport, Queensland. At the hearing of the appeal, we were informed by the appellant's representative, Ms Hickling, that this address was the appellant's registered office. This is confirmed by a company search of the appellant, contained in the original file for each application, which we refer to below.
The first hearing of the applications was fixed to be heard at the Mullumbimby Court House on 11 November 2019 at 1:45 PM. On that occasion, the only appearance from the parties was that of Ms Gilbert representing the applicants (the respondents on the appeal). An order was made that day by the Tribunal covering each of the applications as follows:
1. On or before 18 November 2019, the respondent is to provide reasonable access to the applicant, by way of providing a photocopy to the applicant, of the account the respondent's electricity supplier rendered on the respondent, for the supply of electricity to the respondent at the residential community ( Tweed River Hacienda Holiday Park) for the period 27 September 2019 to 25 October 2019.
It appears that the orders were amended under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on 20 November 2019 to correct the name of the respondent to each application (the appellant on the appeal).
We were told by Mr Glover, who appeared on the appeal for the respondents, that he was instructed that on 11 November 2019 oral reasons were given by the Tribunal for the making of the order. Unfortunately, no sound recording of the hearing that day, or of the reasons given, was available because of an equipment malfunction. We were also informed by Mr Glover that he was instructed that the Tribunal did address the appellant's absence in the oral reasons that were given. No request was made by the appellant (or the respondents) for written reasons for the decision.
It is not clear how the appellant received notice of the order made on 11 November 2019 but the appellant said in Annexure C to the Notice of Appeal that, immediately it learned of the order, it sent the email of 13 November 2019 referred to below. The Notice of Appeal states that notice of the decision made on 11 November 2019 was received on 13 November 2019.
By an email sent on 13 November 2019 to the Tamworth registry of the Tribunal, Ms Hickling, on behalf the appellant, said that they had received that day Notices of Conciliation and Hearing (Group List) for these applications and that the appellant had not been able to attend the hearing because it did not receive these notices prior to the hearing date of 11 November 2019. She said in the email that if notice had been received prior to the hearing the respondent would have attended. She requested that the matter be re-listed for another hearing and conciliation date in order for the respondent to have an opportunity to attend.
The Notices of Conciliation and Hearing were dated 29 October 2019. The appellant included in the documents filed in support of its appeal a copy of the Notice in respect of Mr Mountfort's application. That copy bears a "received" stamp recording a date of receipt of 13 November 2019. At the hearing of the appeal, Ms Hickling said that she placed this received stamp on each of the Notices and that it was on this date that the documents were delivered to the registered office. No sworn evidence was presented by Ms Hickling or from anyone else about the date of delivery or receipt of these documents.
The Notices of Conciliation and Hearing state that the applications are enclosed.
In addition to these Notices, there is no dispute that there was also sent to the appellant, to its registered office in Southport, Queensland, a Form 4 notice, as prescribed by the Service and Execution of Process Regulations 2018 (CTH), in respect of each of the applications. These Form 4 notices were dated 25 October 2019. They give the Tamworth registry as the relevant registry for the Tribunal. They state that the application to the Tribunal is attached and that service of the attached process outside New South Wales is authorised by the SEPA if the claim made falls within any of the six connections to New South Wales outlined in the form. It specified the particular connections to New South Wales relied upon for the service outside New South Wales in this case.
The copy of the Form 4 notice in respect of Mr Mountfort's application included in the appellant's documents contains the same received stamp as appears on the Notice of Conciliation and Hearing giving a date of receipt of 13 November 2019.
In its written submissions on appeal, the appellant stated that the Notice of Conciliation and Hearing was accompanied by the Form 4 notice dated 25 October 2019. It was also said in the submissions that the Notice of Conciliation and Hearing and Form 4 notice were not received by the appellant until 13 November 2019.
The files maintained in the Tamworth Registry in respect of the respondents' applications (the Tamworth registry files) each contain a letter from the Tribunal to the appellant, addressed to its registered office, dated 13 November 2019, responding to the 13 November 2019 email. The letter acknowledged receipt of the appellant's communication and stated that in limited circumstances a party may apply to the Tribunal to set aside or vary a Tribunal decision or lodge an Internal Appeal to the Tribunal's Appeal Panel. It informed the appellant that it should seek independent advice. The letter said that it was not possible to reconsider the decision on the basis of the appellant's communication and that no further action would be taken until a completed application was lodged with the applicable fee.
After the correction of the 11 November 2019 orders on 20 November 2019, the following occurred:
1. An amended Notice of Order, dated 20 November 2019, addressed to the appellant at the address of the registered office in Southport, Queensland, was received by the appellant.
2. Renewal proceedings were commenced by each of the respondents on 26 November 2019 because of the appellant's non-compliance with the 11 November 2019 orders. The renewal applications gave the appellant's address as an address in Chinderah, New South Wales, apparently a site or unit within the Tweed River Hacienda Holiday Park.
3. The Tribunal sent a letter to the appellant dated 28 November 2019 stating that the renewal proceedings had been listed for telephone directions and required that the appellant provide a telephone number to the Tribunal on or before 12 December 2019. A notice of the directions hearing was said to be enclosed with this letter. The letter gave Ms Hickling's email address as the address of the appellant.
4. A Notice of Directions Hearing, dated 11 December 2019, addressed to the appellant, was received by the appellant. This notice stated that the application to renew the proceedings was listed before the Tribunal on 16 January 2020.
5. The appellant was represented at the hearing on 16 January 2020. It is not disputed that at this hearing the Tribunal was informed by the appellant that it had not received notice of the hearing on 11 November 2019 and that the appellant alleged that the Tribunal had no jurisdiction to make the orders that it did on that day. It is also not disputed that on that occasion the Tribunal ordered that each of the renewal applications be adjourned to a date to be fixed and made orders for the lodging of an appeal and stay application by 24 January 2020.
The Notice of Appeal, dated 24 January 2020, appealing against the 11 November 2019 orders made in each of the six applications, was lodged on 3 February 2020.
The Tamworth registry files reveal that an application to set aside the 11 November 2019 orders under Regulation 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) was also made by the appellant. This was also dated 24 January 2020. The set aside application was made on the basis that the orders were made in the absence of the appellant. The application made reference to the Notice of Appeal as containing the material that was relied upon by the appellant in support of the set aside application.
The Tamworth registry files contain a Notice of Order, dated 4 February 2020, dismissing the set aside application and giving reasons for that dismissal. Included in the reasons was reference to Regulation 9 (5) (a) of the Civil and Administrative Tribunal Regulation (NSW) 2013, which provides that a set aside application cannot be brought by a party when an internal appeal has been lodged.
[3]
Extension of time in which to appeal
Whilst the Reply to the appeal said that the respondents did not oppose a grant of an extension of time in which to lodge the appeal, in their written submissions the respondents did oppose the grant of such an extension.
The delay in lodging the appeal is substantial. In this case, the appellant was required to lodge any appeal within 14 days of receiving notice of the orders appealed from: Rule 25 (4) (b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). This is because the appeal was from an order made in residential proceedings: see the definition of "residential proceedings" in s 3 (1) of the NCAT Rules.
As we have already mentioned, according to Annexure C to the Notice of Appeal, the appellant first learnt of the 11 November 2019 order on 13 November 2019. Hence, the appeal should have been lodged by 27 November 2019. Instead, the appeal was not lodged until 3 February 2020.
There is no satisfactory explanation for this considerable delay. The fact that, as it acknowledged in the attachments to its Notice of Appeal, the appellant is an experienced litigant in the Tribunal makes the delay all the more unsatisfactory. In Annexure C to the Notice of Appeal, the appellant contended that the Tribunal did no more than acknowledge receipt of the request for another hearing made in Ms Hickling's email of 13 November 2019. In its written submissions, the appellant contended that following the email of 13 November 2019 no further communication was received from the Registrar of the Tribunal (paragraph 13). Later in these written submissions, the appellant contended that no "substantive response" was received to the request for another hearing made in the email of 13 November 2019 (paragraph 27).
The reference to an acknowledgement of receipt of Ms Hickling's email of 13 November 2019 must be a reference to the letter from the Tribunal dated 13 November 2019, to which we have referred above. No specific reference to the Tribunal's letter was made in any of the appellant's documents on the appeal. As we have already mentioned, the Tribunal's letter, specifically, referred to the avenue of an appeal.
In Annexure C to the Notice of Appeal, and in its written submissions, the appellant also sought to explain the delay on the basis that, in the absence of obtaining legal advice, it believed it could put its case against the order made on 11 November 2019 in the renewal proceedings. However, the Tribunal's letter of 13 November 2019 suggested otherwise.
[4]
The Grounds of Appeal
The Grounds of Appeal set out in the Notice of Appeal raised two alleged errors of law. First, that the Tribunal erred in finding that it had jurisdiction to hear and determine the application. Secondly, that the Tribunal erred in making an order contrary to the terms of s 83 of the RCA.
As to the error concerning jurisdiction, the appellant relied upon three matters. First, non-compliance with s 52 (2) of the SEPA. Secondly, that the application for the order was not served upon the appellant until after it had been heard. Thirdly, that the Tribunal, not being a Court of a State, was precluded from determining the matter given that the matter was and remains a "Federal Matter" - the issue raised here was not the issue dealt with in Burns v Corbett (2018) 92 ALJR 423; [2018] HCA 15 arising from a dispute between residents of different States.
In setting out the argument concerning the SEPA issues the appellant gave emphasis to the s 52 issue, as it also did in its written submissions, whilst also taking the point that it did not concede that s 11 of the SEPA (concerning proof of service) had been complied with.
[5]
The SEPA issues
For the reasons below, in our opinion, the appellant's arguments based upon non-compliance with the SEPA should be upheld.
At the outset, four matters should be noted.
First, the issues concerning compliance with the SEPA raise a threshold question as to the authority of the Tribunal to exercise extraterritorial jurisdiction over the appellant company through service at the company's registered office in Queensland. This raises a like issue to that arising with the inter-state service of proceedings in a Court of a State: see, for example, Davies, Bell & Brereton, Nygh's Conflict of Laws in Australia, 8th ed at [3.5]-[3.15]; Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd [2008] NSWSC 1139.
This is a distinct issue from that which has arisen in other cases, not involving an inter-state element, concerning the procedural fairness of the Tribunal determining a matter in the absence of a respondent who claims not to have received notice of a hearing. In the latter situation, questions can arise as to the application by the Tribunal of the rules of natural justice, the application of the provision for service of documents in Rule 13 of the NCAT Rules, the application of Rule 35 of the NCAT Rules giving the Consumer and Commercial Division of the Tribunal power to proceed ex parte, and the significance of any application (or lack of such an application) by a respondent to set aside a decision under Regulation 9 of the Civil and Administrative Tribunal Regulation 2013.
Secondly, the relevant provisions in the SEPA confer an authority on the Tribunal, on terms, to adjudicate a dispute through inter-state service of the Tribunal's initiating process. The service provisions in the NCAT Act do not in their terms seek to authorise service of initiating process inter-state and are presumed not to have such extraterritorial effect: Herzfeld, Prince & Tully, Interpretation and Use of Legal Sources, The Laws of Australia at [25.1.2040]. In any event, the SEPA provisions apply to the exclusion of any State law provisions authorising inter-state service: s8 (4) of the SEPA.
Thirdly, no power to dispense with the operation of the SEPA provisions has been conferred on the Tribunal.
Fourthly, whilst the appellant company accepts that it did come to receive the respondents' applications (and accompanying notices of hearing), significantly, it disputes that it did so before the order was made on 11 November 2019. It is at that time that the question as to the jurisdiction of the Tribunal to make the order is to be determined.
[6]
Remaining Grounds of Appeal
Given our conclusion concerning the lack of jurisdiction of the Tribunal to make the order on 11 November 2019, it is unnecessary for us to deal with the remaining grounds of appeal, and we think that it is not appropriate that we do so.
[7]
Orders on appeal
For the above reasons, we grant an extension of time to 3 February 2020 in which to lodge the Notice of Appeal, we allow the appeal and order that the order made by the Tribunal on 11 November 2019 (as amended on 20 November 2019) in each of the applications be set aside.
The Tribunal's lack of jurisdiction on 11 November 2019 by reason of the appellant not having been served has long been rectified, and the 21 day period required to elapse before a step can be taken in the proceedings has long expired. The applications should be remitted to the Consumer and Commercial Division for hearing and determination.
[8]
Orders
1. Extend the time for lodging the Notice of Appeal to 3 February 2020.
2. Appeal allowed.
3. Set aside the order made in each of the applications on 11 November 2019, as amended on 20 November 2019.
4. Remit each of the applications the subject of the appeal to the Consumer and Commercial Division of the Tribunal for hearing and determination.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 May 2020
Parties
Applicant/Plaintiff:
Hacienda Caravan Park Pty Ltd
Respondent/Defendant:
Mountfort
Legislation Cited (7)
Civil and Administrative Tribunal Regulation 2013(NSW)
1. Extend the time for lodging the Notice of Appeal to 3 February 2020. 2. Appeal allowed. 3. Set aside the order made in each of the applications on 11 November 2019, as amended on 20 November 2019. 4. Remit each of the applications the subject of the appeal to the Consumer and Commercial Division of the Tribunal for hearing and determination.
The principles applicable to extensions of time were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In that case the Appeal Panel said that the time limit for lodging an internal appeal should generally be strictly enforced but exceptions might be made where the interests of justice so require (at [21]). In that decision, the Appeal Panel added (at [22]):
The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal),
- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
Despite the unsatisfactory explanation from the appellant, because of the jurisdictional nature of the appeal concerning the application of the SEPA and the merits of the appeal we have decided to grant the required extension of time.
The provisions of the SEPA with specific application to the Tribunal are as follows:
Part 4 - Service of process of tribunals
Division 1 - Preliminary
47 Interpretation
In this Part:
proceeding means a proceeding in a tribunal in connection with the performance of an adjudicative function by the tribunal.
subpoena means a process that requires a person to do one or both of the following:
(a) to give oral evidence before a tribunal;
(b) to produce a document or thing to a tribunal;
but does not include a process that requires a person to produce a document in connection with discovery and inspection of documents.
tribunal of issue, in relation to a process, means the tribunal by which the process was issued.
Division 2 - Service of initiating and other process related to adjudicative functions
48 Application of Division
This Division applies with respect to a proceeding that concerns:
(a) real property within the State in which the tribunal is established; or
(b) a contract, wherever made, for the supply of goods or the provision of services of any kind (including financial services) within that State; or
(c) an act or omission within that State; or
(d) the carrying on of a profession, trade or occupation within that State; or
(e) a pension or benefit under a law of that State; or
(f) the validity of an act or transaction under a law of that State.
….
50 Initiating process may be served in any part of Australia
(1) An initiating process issued in a State may be served in another State.
…..
(3) Service on a company or a registered body must be effected in accordance with section 9.
…..
51 Information to be provided
Service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served.
52 Time for appearance
(1) If the person served is required or permitted to enter an appearance under a law of the place of issue, the period after service within which that person may enter an appearance is:
(a) 2l days; or
(b) such shorter period as the tribunal of issue, on application, allows.
(2) If the law of the place of issue does not provide for a procedure by which the person served may enter an appearance, a step is not to be taken in the proceeding before the end of a period of 21 days, or such shorter period as the tribunal, on application, allows, after service of the process.
(3) The matters that the tribunal must take into account in determining an application to allow a shorter period include:
(a) urgency; and
(b) the places of residence or business of the parties; and
(c) whether a related or similar proceeding has been commenced against the person or another person.
The SEPA also contains provisions of general application which are relevant to the issues raised by this appeal:
9 Service on companies and registered bodies
Service of a process, order or document under this Act on a company is to be effected by leaving it at, or by sending it by post to, the company's registered office.
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11 Proof of service
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(4) Service of a process, order or document under this Act by post on a company, a registered body or any other body corporate is taken to have been proved only if the following are proved:
(a) it was sent by pre‑paid post to an address for service on the company, registered body or other body corporate under section 9 or 10;
(ab) it was addressed to the company, registered body or other body corporate, or, if the address for service is the office of a solicitor, to that solicitor;
(b) the day on which it was posted.
(5) Service of a process, order or document under this Act may be proved:
(a) by affidavit sworn before:
(i) any justice of the peace having jurisdiction in the State or part of the State in which the service was effected; or
(ii) a Commissioner for Affidavits or Declarations; or
(iii) a notary public for that State or part of that State; or
(iv) a person who is a barrister or a solicitor, or both; or
(b) in any way in which the service might have been proved if it had been effected within the State in which the process, order or document was issued.
12 Effect of service
Subject to this Act, service of a process under this Act:
(a) has the same effect; and
(b) may give rise to the same proceedings;
as if the process had been served in the place of issue.
We note that provision for service of a document on a company by the means set out in s109X (1) and (2) of the Corporations Act 2001 (Cth) does not apply to a process or document that may be served under s 9 of the SEPA: see s 109X (3) .
Correctly, in our opinion, the respondents accept that the SEPA, in particular, ss 9, 11, 48, 50 and 52 applied to the applications. It was uncontroversial that the applications were proceedings in a tribunal in connection with the performance of an adjudicative function by the tribunal, that the required connection with New South Wales as specified in s 48 was satisfied, that the applications were "initiating process" within the meaning of s 52 (1) and that ss 9 and 11 had to be complied with in relation to the service of the applications on the appellant, out of New South Wales, in Queensland.
Section 29 of the Acts Interpretation Act 1901 (Cth) is applicable to service of process under the SEPA and makes provision for the time of service as follows:
29 Meaning of service by post
Where an Act authorises or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
In our opinion, on the material in this case, these provisions raise the following insuperable problems for the respondents in seeking to establish, as they must, relevant service of the applications before the making of the orders on 11 November 2019 and compliance with the time requirement in s 52 (2):
1. service on the company in Queensland by post before the hearing on 11 November 2019 could not be taken to be proved in accordance with s 11 (4) of the SEPA because there was no evidence as to the day on which the documents containing the applications were posted: see s 11 (4) (b). The fact that the documents were addressed to the appellant company at the address of its registered office and, admittedly, received at that address is sufficient to establish the matters set out in s 11 (4) (a) and (ab). However, there is nothing to establish the day of posting. The Tamworth registry files disclose no indication of such date. There is, for example, no indication as to the practice of that registry concerning the posting of letters, including whether the Form 4 notices (dated 25 October 2019), and accompanying applications, were sent separately from and in advance of the Notices of Hearing and Conciliation (dated 29 October 2019), which documents also enclosed the applications. In these circumstances, it is not possible to conclude that the documents were posted on the date that they bear. The remarks of Basten JA in Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298 at [35] and those of Davies J in David Harris & Deidre Harris t/as Wellington Concrete v Mayne [2011] NSWSC 1551 at [36] provide some support for our conclusion.
2. There was no proof of such service on the appellant company, of the nature referred to in s 11 (5) (a) or (b) of the SEPA.
3. Even if the respondents overcame the obstacle of proving the day of posting, there was no material establishing the time of delivery in the ordinary course of post, as provided for in s 29 of the Acts Interpretation Act (Cth): see Advanced Mining & Civil Pty Ltd v Westcat Plant Hire Pty Ltd [2016] WASC 413.
4. In any event, given the dates of 25 and 29 October 2019 for the relevant documents enclosing the applications, it is not possible for the 21 day period prescribed in s 52 (2) of the SEPA to have elapsed before the Tribunal took the step of conducting a hearing and making orders on 11 November 2019. Section 52 (2) applies to these proceedings because there is no provision for entering an appearance by a respondent to the applications. Furthermore, no application was made to shorten the 21day period and there was no order shortening that period.
The respondents' submissions contained no answer to these points. In oral submissions, Mr Glover contended that it should be inferred that the service requirements of the SEPA had been complied with. He invited us to make the necessary inferences from the dates of the relevant documents. As outlined above, we are not prepared to do so. None of the respondents' submissions confronted the additional problem presented by non-compliance with s 52 (2) of the SEPA. Rather, the submissions addressed the question whether the appellant had been denied procedural fairness. As to this, it was submitted that even if it was assumed that the appellant did not receive notice of the hearing on 11 November 2019, it did appear at the hearing on 20 November 2019 and had the opportunity to oppose the making of an amendment to that order. We do not understand the basis of this submission. The amendment of the orders on 20 November 2019 occurred pursuant to s 63 of the NCAT Act. That provision permits the Tribunal to amend orders to correct an "obvious error". In this case that error involved the name of the respondent (appellant on the appeal). There was no need for there to be a hearing and there is no suggestion in the Tamworth Registry files that a hearing took place. In any event, the respondents' submission fails to deal with the flaws with the making of the order on 11 November 2019 without which there never would have been any amended order made on 20 November 2019.