This passage was applied by Stein JA, with whom Powell JA and Sheppard A-JA agreed, in Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 at 277 B-C.
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.