Hacienda Caravan Park Pty Ltd v Mountfort

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.
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. ….. 11 Proof of service … (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.

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Judgment (9 paragraphs)

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