Schattin & Anor v Wollongong City Council [2010] NSWLEC 32

Land and Environment Court of New South Wales

CITATION : Schattin & Anor v Wollongong City Council [2010] NSWLEC 32

FIRST APPLICANT Michael John Schattin SECOND APPLICANT PARTIES : Manal Schattin

RESPONDENT Wollongong City Council

FILE NUMBER(S) : 10077 of 2010

CORAM: Sheahan J

KEY ISSUES: PRACTICE AND PROCEDURE :- motion to dismiss appeal as filed out of time - service of documents by post

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Evidence Act 1995 Interpretation Act 1987

CASES CITED: Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278

DATES OF HEARING: 11 March 2010

EX TEMPORE JUDGMENT DATE : 11 March 2010

THE APPLICANTS First Applicant in person LEGAL REPRESENTATIVES: RESPONDENT Mr M Cotton, Solicitor of Kells The Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Sheahan J

11 March 2010

No. 10077 of 2010 MICHAEL JOHN SCHATTIN & ANOR v WOLLONGONG CITY COUNCIL

EXTEMPORE JUDGMENT

1 His Honour: Council has asked the court to dismiss this appeal brought by Mr and Mrs Schattin in class 1 of the court's jurisdiction, because it says the appeal was filed out of time, the stipulated period being "within 28 days". 2 The Council order appealed against was issued under s 121B of the Environmental Planning and Assessment Act 1979 on 7 January 2010 and posted by registered post on 8 January 2010 to the applicants' usual or preferred PO Box address. Such service is clearly appropriate in this case. 3 The parties are agreed that the Australia Post tracking record indicates the Order's delivery to Figtree Post Shop on Friday 8 January 2010, during the summer holiday period. Mr Schattin went to clear the box on Thursday 14 January. He attended to the identification and other formalities on receipt of the usual Post Office note left in the box, and took delivery of the Order. 4 On 9 February he posted to the court his Class 1 application. It was delivered to the court on 10 February and filed on 11 February. 5 If one takes the date of service of the order as 8 January, the appeal is out of time. 6 Mr Schattin on behalf of his wife and himself argues strongly that the real date of service is the date of receipt, 14 January 2010, so the appeal is within time. 7 The relevant rules and statutory provisions date from a time before barcode tracking of mail items became possible, and, then, the norm. They should probably be reviewed in the light of technological developments. 8 The Evidence Act 1995 and Interpretation Act 1987 enable the deeming of dates upon which ordinary mail items are delivered, but the relevant statutes governing jurisdictional timing matters distinguish a document's service from its actual or deemed receipt in certain circumstances. 9 Section 121U provides that the order takes effect on service, if no later date is specified in it. 10 Section 121ZK(3) requires the appeal to be made within 28 days of service of the order. 11 Section 153 deals with service of orders and notices. Section 153(1)(a)(ii) specifies "sending it by prepaid post". Section 153(2) deems it to be served "at the time at which the notice … would be delivered in the ordinary course of post". 12 If not registered, the order involved here would have been delivered in such "ordinary course" on 8 January 2010, regardless of when the box was cleared. 13 Mr Cottom referred me to a helpful summary of the dilemma facing the court in circumstances such as the present, in par [38] of White J's judgment of 18 April 2007 in Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278. 14 The court sympathises with the applicants' situation, but clearly the relevant statutory provisions require that I find that their appeal has been filed out of time. 15 The Council's motion for dismissal is upheld, but, in my discretion, I order that each party should pay its own costs of the proceedings.