Posted on October 15, 2014 by Stuart Simington
Service of orders under the LG Act : a salutory reminder
The Local Government Act 1993 authorises the service of statutory orders on an individual by sending the order by prepaid post to the recipient. It might also be thought that it would be sufficient to leave an order in the recipient’s mailbox. But are either of these methods of service advisable?
In Tweed Shire Council v Furlonger  NSWLEC 156 (view decision), the defendant was prosecuted for failing to comply with an order issued under s124 of the LG Act. The order related to rectification of a relocatable home which did not comply with certain standards.
The Council attempted to serve the order by leaving it in the defendant’s mailbox. When the work was not done, the Council commenced the prosecution proceedings without further notice.
Before the Court, the defendant argued that the charge should be dismissed because the defendant had been unaware of the order. The Court agreed and dismissed the charge, relying on two grounds.
Firstly, the Court held that as a matter of fact, the order had not been ‘served’ on the defendant. This was so, even though it had been left in the defendant’s mailbox. The Court accepted that it was likely that a third party removed the order from the site’s mailbox; it may well also have been that the defendant was not living at the site at the relevant times. Consequently the order had not been ‘given’ to the defendant as required by s628 of the LG Act.
[I]n my opinion, where a person does not receive a document hand delivered to their mailbox, that not being a method of service authorised by s 710 [of the LG Act], it has not been served.
However, it would also not have been sufficient to rely on the methods of service allowed by and set out in s710 of the LG Act, such as the pre-paid post method of service.
Section 710 allows the service of an order on an individual to be effected by sending it by prepaid post addressed to the recipient at the address specified by the person or at the last known place of abode or business. Service is effected whether or not the document is actually received.
Nevertheless, where this method of service is utilised, a defendant can still seek to rely on s628(5) of the LG Act which provides a defence to a prosecution for failure to comply with an order where the defendant was unaware of the order:
(5) It is a sufficient defence to a prosecution for an offence to which this section applies if the defendant satisfies the court that the defendant was unaware of the fact that the activity in respect of which the offence arose was the subject of an order under Part 2 of Chapter 7.
Therefore the second basis for a defence in this case, was that, as the Court had accepted that the order did not ever came to the attention of the defendant, the defence in s628(5) would also have been established.
The implication is that, even if a Council has validly effected service of an order by pre-paid post (rather than by merely putting the order in the mailbox) the defence in s628(5) will be available to a defendant who nevertheless does not become aware of the order so ‘given’.
In conclusion, if enforcement action is contemplated for failure to comply with an order, it is strongly advisable to serve the order in person. Even if only civil enforcement is contemplated (so the defence in s628(5) does not pose an obstacle), simply leaving the order in the recipient’s mailbox is problematic because it may be very difficult to prove that the order came to the attention of the recipient if this is denied by the recipient. If so, the order may be held not to have been ‘given’ and if so will not be able to be enforced.