A big part of what local governments do on a day-to-day basis includes serving statutory notices.
From Show Cause Notices under the Planning Act 2016, to Reasonable Entry Notices under the Local Government Act 2009, and everything in between across the many pieces of legislation Councils administer, getting the notice process right is essential for this important Council function to work properly.
While serving statutory notices can seem like the simplest part of the process, it can also be the part that is most exposed to the risk of legal challenge, often on very technical grounds.
Where to start?
The service requirements for a statutory notice are generally contained in two sources:
- The Act, Regulation or another instrument under which the notice is being served; and
- The Acts Interpretation Act 1954 (“Interpretation Act”) covers the field if the Act under which the notice is served is silent.
Section 39 of the Interpretation Act allows a document to be served:
- on an individual – personally, or by leaving it at their last known place of residence or business by post, telex, facsimile, or similar facility;
- on a body corporate – by leaving it at or sending it to their registered office by post, telex, facsimile, or similar facility.
Specific legislation might modify or expand the Interpretation Act. For example, the Planning Act contains a provision allowing service via an electronic medium such as Dropbox, and the Local Government Act provides a process for substituted service via newspaper and gazette notices.
Section 39A of the Interpretation Act says that service of a document by post is effected by properly addressing, prepaying, and posting the document as a letter, and service is taken to have been effected at the time the letter is delivered in the ordinary course of the post unless the contrary is proved.
This requirement is very important when setting the timing for compliance under statutory notices. It means that if a notice requires a person to do something within a certain time of the date the notice is served, then Council must account for the time it takes to serve the notice in the ordinary course of post if Council is serving the notice by post.
The “ordinary course of post” can be determined by accessing the Australia Post website and determining how long it takes a notice to be sent by post.
To email or not to email?
The reference in the Interpretation Act to serving a notice “by telex, facsimile or similar facility” gives rise to an important question in the digital age: does a “similar facility” include email?
There is competing case law on this point. A 2011 District Court decision found that the words “a similar facility” included email transmission. However, authorities in other States considered a similar provision in the New South Wales context and considered email was not “similar” because a facsimile machine produced a paper copy of the notice at the receiver’s end.
The ambiguity means that unless an Act specifically authorises the service of a statutory notice by email, Councils should not rely on email service to legally serve a document. Some legislation, including the Planning Act, contains specific provisions enabling emailed or another electronic service.
That does not mean that a local government cannot send a notice by email and serve it in other ways to draw the recipient’s attention to the notice as quickly as possible.
Another critically important piece of the service puzzle is ensuring that the local government has collected enough information throughout the process to prove service if the issue is ever challenged.
For example, simply dropping a notice and covering letter to an administrative assistant for them to arrange to post might give rise to challenges down the track in proving service. The council might need to prove that the notice provided to the administrative assistant was the statutory notice in question, and the administrative assistant might need to prove that they put that notice in an envelope and dropped it in the post box – a real headache!
When serving notices by post, the best practice to ensure that service can be proved is for the same person to:
- physically place the notice in the pre-paid envelope;
- take a photocopy of the notice and the front of the envelope showing the addressee;
- seal the envelope;
- themselves walk the envelope to a post box and drop it in;
- take a file note of the date and time the envelope was dropped in the post box, and attach that to the photocopies.
If service is ever questioned, the same person can give evidence that the statutory notice in question was the one that was placed in the envelope, and put in a post box addressed to the place the notice was meant to get to.
We can help
While it may seem like a very simple part of the enforcement process, effectively serving notices can be the area most prone to mistakes, and most exposed to legal challenges.
A successful challenge to the valid service of a statutory notice can bring even the strongest enforcement processes crashing down.
The key starting point is understanding the requirements of the Interpretation Act, along with any specific requirements of the legislation under which the statutory notice is being given.
We assist local governments across Queensland in all aspects of Council regulatory processes. If you have any questions about this blog or local government regulatory processes generally, please contact Local Government Partner Julian Bodenmann on 07 4052 0717.