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High Court of Australia Transcripts |
Office of the Registry
Perth No P48 of 1997
B e t w e e n -
SAMUEL PHILIP CAPPER
Appellant
and
ANDREW CECIL THORPE
Respondent
GAUDRON J
McHUGH J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 10 FEBRUARY 1998, AT 10.15 AM
Copyright in the High Court of Australia
MR R.M. GARRATT, QC: If the Court pleases, I appear with my learned friend, MR S.F. POPPERWELL, for the appellant. (instructed by Chalmers & Partners)
MR R.L. LE MIERE, QC: If the Court pleases, I appear for the respondent. (instructed by Amidzic & Co)
MR GARRATT: The statute which is the focus of this appeal requires a notice to be served before a vendor may exercise certain rights, but is silent as to what is service. It has been common ground between the parties, and so held by all judges below, that in using the word "served" the statute picks up the statute interpretation provisions of Western Australia which permit service by means in addition to personal service. Thus arise the central questions in this appeal: are the statutory provisions exhaustive, in the context of the Sale of Land Act, of the permissible modes of service of the default notice in question, or are the parties free to agree on another mode of service for a default notice? And, if the statutory provisions are exhaustive of the modes of the service of default notices, are the parties, nevertheless, free to agree between themselves as to where a notice which is to be served by one of the modes, post here, may be served, and as to when it is to be treated as having been received.
The Interpretation Act 1984 here is, of course, the Interpretation Act
of Western Australia. The Act which requires the service of the default notice is the Sale of Land Act 1970 of Western Australia. Plainly enough, the Interpretation Act 1984 was not in force when the 1970 Act was enacted. There was then an earlier Interpretation Act 1918 . However, the 1984 Act in section 3 makes it plain that it is Parliament's intention that the meaning of the word "served", in existing as well as future legislation, is to be derived from the 1984 Act.
KIRBY J: You start with the Interpretation Act 1984 , but may it not be that one should start with the Sale of Land Act and the scheme that it introduces, the regime it introduces for the purpose of ensuring that parties in particular circumstances have particular protections?
MR GARRATT: In our submission, no, your Honour, one must start with both Acts, because what Parliament - - -
KIRBY J: But the Interpretation Act is a general Act of general application; the Sale of Land Act is a specific Act which is dealing with the transaction which your client was involved in.
MR GARRATT: That is so, but Parliament has drawn an Act by reference to its own dictionary. It has a dictionary in its interpretation legislation, what the meaning of the word "served" is. It has written that Act in terms of the dictionary. One should not, therefore, in our submission, interpret the Act in isolation but with a dictionary side by side.
KIRBY J: But the dictionary is a general dictionary applicable to all statutes and must be used in a way that achieves the objects of the particular statute, which is the Sale of Land Act.
MR GARRATT: That is true, but in discerning what is the intention of Parliament one cannot overlook the fact that it has chosen to use a general word, doubtless conscious that a more elaborate phrase could have been used had it been intended to exclude what would otherwise be taken to be the reading of its word in the dictionary.
McHUGH J: But that does not help you, talking about dictionaries, does it, because you have to disregard the dictionary and say that section 6(1) enables you to serve a document notwithstanding that you have not complied with the dictionary? You start with this proposition. Section 6 says that the vendor must serve on the purchaser a notice in writing. Prima facie one would have thought that meant service in fact. However, section 76 says:
Where a written law authorizes or requires a document to be served -
it may be effected by one of four methods and 75 fills out one of those methods. You cannot bring yourself within 76, therefore, that is the finish of it.
MR GARRATT: That is not the case, in our submission, your Honour, for, first, the reason that I have indicated - I am sorry, if I may approach it this way. If I may say the basis of your Honour's contention is that there is a contrary intention in the Sale of Land Act which excludes recourse to Parliament's dictionary. There is a definition of the word "served".
McHUGH J: No, that is not what I am putting to you at all. What I am putting to you is that in its natural and ordinary meaning "served" in section 6 means served, served in fact. It is nothing to do with deeming. However, because section 6 does require a document to be served, section 76 gives you four methods by which you may serve it within the meaning of that. Well, you cannot bring yourself within any of those four methods, but where do you find then the authority to go outside section 6 and say, "We do not have to serve it in fact. It is sufficient we deem it by some contractual arrangement"?
MR GARRATT: Your Honour, the starting point is the meaning of "served" in the Act. I will be taking the Court to the parliamentary debates, which make plain that this- - -
McHUGH J: "Served" in section 6(1)?
MR GARRATT: Yes, that "served" in section 6(1), according to the debate, did not contemplate a notice which was necessarily received.
MR HAYNE: So you say it would be appropriate or possible for parties, by contract, to stipulate that the statutory notice required by section 6(1) might be given, if I can use that neutrally, by simply nailing it up to a portion of the land?
MR GARRATT: What we submit is that "served" does not have the meaning of actual service only, personal service only, and the parties are at liberty to employ a means which is apt to bring the document to the attention of the person to be served.
MR HAYNE: So that the parties are free to make contractual stipulations about the way in which they will fulfil the statutory obligation?
MR GARRATT: They are free to make arrangements which are apt to bring the document to the attention of the other party. In other words, to chose for themselves within what would be the range of ordinary options for serving a document. They cannot chose something which could not, on any ordinary sense, be apt to bring a document to the attention of another, but they are free to select any means which is apt, and they may do so by facts or service on the solicitor or the like.
McHUGH J: But it is not a question of bringing to the attention; it is a question as to whether the vendor has served on the purchaser a notice.
MR GARRATT: I would, in due course, take the Court to the parliamentary debate which is the foundation for the submission that "served" does not mean actual service, it means dispatched in a means apt to bring it to the attention of the other side. Once that is so, then one sees, in our submission, that what Parliament does in section 76 and what the parties would do outside 76 is pick an occurrence which is to be treated as the equal of receipt. There is only on one occasion, of course, that service equals actual receipt and that is personal service.
In all the other modes in section 76 one has an occurrence which is treated to be the equivalent of receipt for reasons of commercial certainty, be it posting, be it leaving, be it delivering at premises or last known address and the plain intention of the Parliament in section 76, for example, is that this alternative occurrence is to be treated as the equivalent of service. The High Court said as much in Fancourt as to the other modes of service referred to in the Queensland Interpretation Act. We embrace that proposition and say that Parliament did not intend actual service. The parties are free to agree between themselves on a mode which is apt to bring it to the attention of the other party and necessarily must, therefore, also be free to agree that service is effected by that mode. In other words, the event which is the substitute for actual service is the time of service actually occurring for the purposes of their arrangement.
McHUGH J: That will be one of the critical questions when we come to the debates because the debates will not help you unless the debates recognise that the parties can come to their own arrangements in respect of service outside the manner contemplated by section 76.
MR GARRATT: I will elaborate on the submissions at that point, if the Court please, rather than anticipate them at this point.
KIRBY J: Could I just ask a very practical question? It is probably completely legally irrelevant but, here were parties with solicitors and who were faxing merrily to the business address of the respondent. Was it ever revealed as to why that form of service, which is the service that would have achieved the purpose of section 6, not followed? I suppose it is left to inference but the solicitor might have though, "Well, I have to play by the rules here and in the contract it says that it is to be served in a particular way", but it is just speculation, I imagine.
MR GARRATT: It is speculation but one might expect - - -
KIRBY J: But as a matter - having been a solicitor for six years, I mean, one would have thought that one would have done the practical thing and given the notice to the place at which you were sending all your faxes.
MR GARRATT: Not wishing to cast aspirations on your Honour's experience as a solicitor, I think - - -
KIRBY J: Solicitors tend to be very practical people. I mean, when we get up into this place it is all up in the clouds but that is the way it normally is done and that would achieve the purpose of section 6.
MR GARRATT: As the learned trial judge observed, your Honour, when one comes to an event as solemn as a default notice, one might expect the solicitor to go back to the contract and just check precisely what should be done and one sees that is exactly what the solicitor did.
The Court has, if I may say, the factual materials, and I will just skim through them to make certain that the sequence, that is the factual matrix to the problem, is traced, but I expect, without wishing to try the Court that the Court - - -
KIRBY J: There is no dispute about the facts, is there?
MR GARRATT: Has read the materials. The contract of sale is at page 8 of the court book and one sees in the contract of sale the purchaser giving his address right at the outset of the contract, about line 24, "We (`the purchaser')(full name and address)", and Mr Thorpe gives his full name and address, which is the address to which the default notice was sent in due course. I shall not read irrelevant parts of the contract. One turns the page and one sees in condition 3, which is line 4 or 5 of page that the "Joint Form of General Conditions for the Sale of Land" are incorporated into the contract. Those general conditions are contained in the appeal book at page 21 and following.
GAUDRON J: Were they physically incorporated, or incorporated by reference only?
MR GARRATT: By reference only.
GAUDRON J: Thank you.
MR GARRATT: But they are the standard conditions which apply to conveyancing in Western Australia in all transactions.
GAUDRON J: Yes, I know. But if they are incorporated by reference only, they may not bring matters directly to the attention of the parties.
MR GARRATT: I take your Honour's point. In those circumstances, I should draw the Court's attention to the acknowledgment, at the bottom of page 9 of the contract, that each party has received a copy. As your Honours will see, on page 9, the parties sign by way of acceptance, and then sign again at the foot of the document that they have received the document, together with a copy of the joint conditions. So, it is not incorporated, but certainly taken away with them. The general conditions are at page 21. The relevant obligation here that was not performed on the due date, 5 September 1995, was to settle - to pay the purchase price. That obligation one sees set forth in condition 4(4) that, at settlement, the parties will do various things.
KIRBY J: Which condition is it?
MR GARRATT: 4(4). It has never been in dispute that, from 5 September, the purchaser was in default in not completing the purchase. One sees, on the next page, in condition 13, a condition dedicated entirely to the subject matter of Terms Contracts. One then has, on page 23, the provision dealing with default notices. It is necessary to read it in part:
Except as otherwise specifically provided in these Conditions.....
(1)(b) neither the Vendor nor the Purchaser is entitled to terminate the contact on the ground of the other's default in performing or observing any obligation imposed on that other party under the contract:
unless
(i) the party not in default has first given to the party in default a written notice specifying the default complained of, which notice shall require that the default be remedied within the period stipulated in the notice: and
(ii) the party in default fails to remedy the default within the period stipulated in that notice.
(2) The period stipulated in the written notice.....shall not be less than fourteen (14) days from the date of service of that notice, or, if the contract is a terms contract, not less than the period of notice stipulate in Section 6 of the Sale of Land Act.
As your Honours would be aware, there are two periods of notice stipulated there, one which is 28 days from money default, otherwise reasonable notice. The service of the notice is taken up in condition 21 on the next page;
(1) A notice or other communication to be given or made under these Conditions shall be in writing and may be signed by the party giving it or that party's representative and unless otherwise provided in these Conditions is deemed to have been duly given or made if served on the party concerned.
(a) by delivering the notice to the party personally;
(b) .....posting to the party at the party's address specified in the contract or other address for service from time to time notified in writing -
(c) relates to corporations. Then subcondition (2):
A notice or other communication posted shall be deemed to have been served at the expiration of forty eight (48) hours of the time of posting.
KIRBY J: What does "deemed" mean in this context? Does it mean conclusively presumed or does it simply mean deemed unless the contrary is shown? Deem is an artificial concept; it is a fiction. Why is it not subject to being shown that the true facts do not bear it out?
MR GARRATT: Because, in our submission, the ordinary meaning of the word in the context is agreed; it is what the parties have agreed to be the conventional basis for their dealings.
GAUDRON J: This provision has not previously been interpreted in that way, has it? Has "deemed" been interpreted in this contract in that way, in any prior proceedings?
MR GARRATT: Not that we are aware of, your Honour.
KIRBY J: In statutes there is authority in this Court that says deemed is a fiction, and why is not "deemed" in a contract here a fiction which you can displace if you can prove the truth?
MR GARRATT: Deemed is always a fiction, and with any service other than actual service, there is always a fiction, namely, that some other event stands for service, for actual service.
KIRBY J: Why does it have to be read as conclusively deemed? That is what you are seeking to do.
MR GARRATT: I read it that way, or we read it that way because of two things: first, we say that is the natural meaning of the language in the context; and we say it is also the purpose which is sought to be promoted, certainty as the basis for the dealings of the parties.
KIRBY J: I think that is a strong argument that runs for you in these cases where a purchaser, say, skips to Bahrain. You have got to have a formula and a method whereby you can have certainty. That certainly is an argument which I find attractive; I think I did in Miller.
MR GARRATT: That is so, your Honour. Your Honour there adopted the reasoning of Justice Hope in Shaddick's Case and we rely on both cases and the adoption of certainty in commercial dealings, and conveyancing dealings in particular, as a goal which the Court seeks to uphold to allow the parties to achieve certainty for themselves.
KIRBY J: That seems to be the drift of authority in Victoria in Alexander v Stocks and Holdings.
MR GARRATT: Precisely.
KIRBY J: Though by a 2:1 and reversing the Chief Justice, so there is a sort of an equal line up of judges.
MR GARRATT: That is always final countdown.
KIRBY J: Type of authority.
MR GARRATT: The Court will have seen the sequence of events that, at the time of the contract in April, indeed Mr Thorpe was living at the address given in the contract, Mosman Park, which is a suburb of Perth. In May, it appears from an affidavit in the materials that he moved from that address. Settlement was due for 5 September. In the events which had happened the contract was varied to extend the date, but did not take place and thereafter there was default. On 6 September the notice of default is posted by certified mail. Mr Thorpe received notice that attempted delivery of an article by certified mail had occurred at 16 Beagle Street. He asked for the item to be redirected to the Pier Street Post Office in the central business district of Perth, which was done, and in fact he collected it from that post office on 3 October, 1995. In the meantime he had however received, a day of two before 19 September, a copy of the default notice in correspondence between the solicitors, and so, on 19 September he wrote, formally notifying of a new address for the service of notices. One sees that letter at page 15 of the appeal book where Mr Thorpe, who is a solicitor and is acting for himself in the transaction, writes:
We have your letter of the 15th of September 1995 and the copy notice enclosed therewith.
It is common ground that that notice was the default notice.
We are instructed that our client no longer resides at 16 Beagle Street, Mosman Park.
It is a slightly disembodied character to this correspondence; Mr Thorpe is writing in the third person about himself as his own client, but that is the effect of it. So, for the purposes of condition 21 of the general conditions, at least from 19 September there had been notified a new address in writing for the service of notices. And so it was - - -
KIRBY J: What is the relevance of that, once the notice has been given?
MR GARRATT: Just to complete the sequence, your Honour, that what then happens is a termination notice is served and it is sent to the address notified now in this latter of 19 September.
KIRBY J: Is it your submission that the logic of the respondent's argument is that if such a letter had not been sent, as is on page 15, and if the respondent had simply taken his time to pick up his certified mail, that the respondent, by his own action and dilatoriness, could just delay indefinitely the receipt of the notice?
MR GARRATT: That must be the inevitable conclusion, in our submission, from the alternative proposition.
KIRBY J: But, equally, the other proposition is that though you might know that the respondent had left his address, that you by giving it to an old address which you knew was not the address and which had no connection with his current address that you could, as it were, have time running against you and defeat the purpose of the Sale of Land Act, which is to give people time to raise money and extricate themselves from the problem.
MR GARRATT: Your Honour, I have no doubt that the Court would be rich enough to prevent someone contriving to defeat the requirement of the statute and the letter of the agreement in that way, or the spirit of the agreement. Doubtless there must be an implied term of the agreement that you behave reasonably to some measure in serving a notice or serve a notice which you bona fide believe is directed to the last known address as the only appropriate address. There must be some implied term, I think, which would prevent a colourable evasion of that sort.
HAYNE J: Some at least of those problems are avoided by adopting the first method of service, namely, delivering it to the person personally.
MR GARRATT: If you can. If you cannot, on the view that service must mean actual service, you can never terminate the agreement.
KIRBY J: I can understand a solicitor in his office looking at the contract and saying, "Well, now, I have got to do this very formally. The contract contains an address and I am going to give it to that address." And if a party has not notified a new address and the word "notify" informally involves a formality, then that is on the party's head, but it is a certain sense of disquiet that you were dealing with another address and that the purpose of the Sale of Land Act is to give parties formal notice of time and time to raise money, which would be the usual problem.
MR GARRATT: The solicitor is caught in this difficulty: the contract says this is what you must do if you are going to embark upon the solemn act of terminating the contract. It would be a very courageous solicitor who, implementing his client's instructions, did not do what the contract required but sent the notice instead to an address which had been used for informal mechanical matters in the transaction.
KIRBY J: It would be a very a practical solicitor who sent it to both.
MR GARRATT: That would be so.
HAYNE J: Or, instead of resorting to post, either served personally or, if you say that is capable of evasion, left it, as the statute says, at "usual or last known place".
MR GARRATT: Yes, one could do that. Again, one has the deeming working - - -
HAYNE J: So where is this commercial difficulty to which you refer in support of your argument, Mr Garratt?
MR GARRATT: I certainly do not say that one cannot effectively serve the notice - on our argument you can by many means. If you are restricted to actual service, then the means of evasion is obvious.
HAYNE J: What?
MR GARRATT: If you are restricted to actual service, then here, for example - - -
HAYNE J: But you are not. You can serve actually by delivering personally or by leaving it at "last known place of abode".
MR GARRATT: But your Honour is assuming there, if I may say so, with respect, that "served" in section 6 has a broader meaning than actual service which was, as I understood it, part of the proposition which his Honour Justice McHugh was advancing. If "service" has the broader meaning that section 76 of the Interpretation Act accords to it then that must be so and, of course, what one would have there - - -
HAYNE J: You wish to go beyond section 76. You wish to go to include section 76 and whatever the parties stipulate by contract.
MR GARRATT: As a means which, objectively, is apt to bring a document to the notice of the person to be served. There may be means, indeed, which are far more apt than those in section 76, for example, service on the solicitor or service by fax the solicitor for the conveyancing party. It is, in our submission, not likely to be assumed that Parliament intended to preclude the parties from using an even more effective means of service than Parliament contemplated in section 76.
While we are on section 76 I can take the Court to its provision. One sees in section 76 that what Parliament is contemplating is, certainly in relation to actual service, that service occurs at the point of personal receipt but otherwise service occurs by reason of some occurrence and at the time of some occurrence entirely unrelated to actual receipt. Indeed, actual receipt does not necessarily enter into the matter at all and so, a document which is posted, as this Court has held, is treated as served on delivery whether or not it is then received.
Similarly, a document which is left is treated as served at the point of leaving and at the date of leaving, whether or not it is ever actually received and that can be by being left at the last known abode which may be a very different thing from the actual current abode.
KIRBY J: I am not familiar with the earlier authority of the Court. I have seen it referred to but I am not - what was the context there? Was it a context like this statute which is parliamentary intention to give a period of grace and that has a utility that time is important for that period of grace to be effective.
MR GARRATT: Yes, it is Fancourt's Case which is referred to in the submissions. That was a case of some sapphire miners in Queensland who had taken on hire purchase some expensive equipment and they defaulted under the hire purchase arrangements and the question arose whether the finance company had served a schedule 4 notice, the notice required by Schedule 4 of the Hire Purchase Act of Queensland, before terminating the contract and calling up the balance of the debt.
The Hire Purchase Act for Queensland simply used the word "served" a Schedule 4 notice but plainly the point of it was to give the hirer the opportunity to remedy the situation. The hirer, in his contract, had given his post office box as the address for the purpose of their dealings and the High Court said the Hire Purchase Act in using the word "served" picks up the interpretation legislation of Queensland which is in very similar terms to the provision we are looking at. It permitted service by post and that having been done it was not to the point that the notice had not, in fact, been received because, as the High Court said, these provisions exist so that there can be some certainty in the dealings of the parties.
Because what is plain and one must not overlook, in that case as in this, is that the party in default knows that they are in default. This is not the sort of case where one is dealing with a person whose rights are changed or he is in breach of his rights, without his knowledge, simply by the service of the notice. All this notice does is inhibit the vendor from taking a further step in respect of the party who is in breach and must know he is in breach of his contractual obligation.
McHUGH J: It does more than that, does it not? It does more than inhibit the vendor. It warns the purchaser that unless he or she or it complies with the terms of the contract within 28 days, the contract is liable to be terminated.
MR GARRATT: That it is voidable.
KIRBY J: Solicitors would tell their clients. They have to give you notice. You have to be served with notice. Until you are served with notice you do not really have to worry.
MR GARRATT: What your Honours will see, when I take the Court shortly to the parliamentary debate, is Parliament balancing the right between vendor and purchaser and saying just this, that I have said, that in balancing these matters as a matter of fairness, one should not lose account of the fact, or lose sight of the fact, that one has a purchaser who is in default, who must know he is in default. The whole purpose of the provision is to give a right to notice, but is not simply to vary the contract, necessarily, to provide a further 28 days for payment, as it were.
KIRBY J: That is the effect of it, though, is it not?
MR GARRATT: Well, it is the effect if you actually receive a notice, or perhaps it is the effect in any event, but if Parliament had intended, for example, that that would be so, then the provision would have been cast in that way. If Parliament had intended, for example, that the purchaser would actually have had the notice, section 6 would have been cast in a different way. It would have said, "Unless and until a purchaser has had a default notice for 28 days, a vendor may not". But it does not say that. It says, linguistically, that, "A vendor may not terminate unless and until he is given a notice which has this content".
KIRBY J: It had to do it that way because it would not be entirely unknown that a vendor goes up in thin air, disappears.
MR GARRATT: A purchaser, your Honour?
KIRBY J: I am sorry, a purchaser, yes.
MR GARRATT: The Parliament is balancing the position between both parties, as the Court will see. The trial judge held that this default notice was served, or governed by, I should say, the general conditions of the contract and that is our submission too. When one looks at condition 4, subcondition (4), condition 16 with its reference to default notice in the period required by the Sale of Land Act, the only fair conclusion, in our submission, is that the default notice was a notice governed, at least by the agreement of the parties, by the general conditions. Of course, whether effectively so governed is another matter, but in terms of the agreement of the parties, it was intended to be governed by the general conditions.
In the Full Court the presiding judge said that was not so. In his opinion, the language of condition 16 and 21 was such that the notice provisions in the general conditions did not apply to a default notice under the contract of sale. For the reasons which we have given, in relation to the particular conditions, we say that is not so. The default notice, in respect of a terms contract, is clearly contemplated by the general conditions and is a notice served under those conditions within the meaning of condition 21.
KIRBY J: He said that notwithstanding the mention of the Sale of Land Act, that it did not incorporate - I did not quite understand his reasoning there.
MR GARRATT: We submit that he is in error, in fact, because what the general conditions contemplate must be arrived at as a matter of construing the general conditions. When one construes them, they plainly do, in our submission, contemplate a default notice in respect of the terms contract is governed by those general conditions.
KIRBY J: He must have been meaning that such a construction would defeat the effectiveness of the Sale of Land Act, or undermine the achievement of the parliamentary purpose.
MR GARRATT: He is, in fact, running together two ideas at that very point and, in our submission, yes, that was part of what he was writing.
KIRBY J: I hope you will get, ultimately, to section 6 of the Sale of Land Act, because it seems to me that is really the starting point and everything else is servant to the achievement of the purpose which section 6 was seeking to gain.
MR GARRATT: Yes. Well, I shall.
KIRBY J: Do not let me take you off your - - -
MR GARRATT: I am simply covering the preliminary material to make sure I tick all the squares, as it were, as I go through the material, your Honour. That last argument is a necessary step in our case; that this default notice is governed by the general conditions and, so, condition 21, with its deeming consequence, applies, as the trial judge observed. If, of course, the contract does not contemplate a default notice under the Sale of Land Act[cedilla] as governed by its provisions, then, of course, one does not look at the contract at all, one is throwing on to other provisions such as the Interpretation Act alone, which is the way in which Justice Kennedy, in the Full Court, resolved the matter. But we say, as a matter of construction, that is just not so. The general conditions plainly contemplate and apply to a default notice such as the one here. Indeed, we do not see, in the respondent's submissions, that they would contend otherwise. May we come, then, to section 6? It is convenient to begin with the parliamentary debate materials.
GAUDRON J: We go to them because of some ambiguity, do we?
MR GARRATT: We go to them because the Western Australian Act says, in section 19 - sorry, the Interpretation Act says, in section 19, that resort may be had to such materials:
(a) to confirm that the meaning of the provision is the ordinary meaning.....or
(b) to determine the meaning of a provision when -
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text -
takes into account -
the purpose or object underlying the written law -
In section 18 - - -
GAUDRON J: You do not want us to go to it to confirm the ordinary meaning?
MR GARRATT: Well, we do. We say that when one has a piece of legislation in relation to conveyancing, using an ordinary word like "served" which, to a lawyer's mind, always carries many possible meanings, one is entitled to just check which of the ordinary meanings is meant.
Statutes require documents to be served all the time and it is a recurrent question in relation to agreements of parties and statutes as to what is meant by the word "served".
KIRBY J: What is that section of the Interpretation Act?
MR GARRATT: Section 19, if the Court please.
KIRBY J: Thank you.
MR GARRATT: Section 18 as well is prayed in aid by the respondent in particular as entitling recourse to the parliamentary debate, namely to be certain of achievement of the purpose or effect of the particular measure. The particular measure, of course, was the product of a project by the Law Reform Committee of Western Australia. The Law Reform Committee put forward two reports to the Minister for Justice, the Honourable Mr Griffith, who was a member of the Legislative Council of Western Australia at the time. The Law Reform Committee was composed of very eminent members. Membership changed between the two reports, but the members always included a senior Crown law officer, two individuals who later became justices, one of the Family Court and another of the Supreme Court.
KIRBY J: Law reform committees and commissions are always composed of very distinguished people; I do not think you need to go into elaborate this.
MR GARRATT: Not just interesting, your Honour, but of the highest calibre, such that one ought not ordinarily assume that they slipped, for example, in not saying personal service if they meant personal service. The other member, Mr Edwards, was then or very shortly soon after became Dean of the Law School of Western Australia, a position he held, I think, until his retirement.
Now part of the transcript of Hansard appears as an attachment to the respondent's outline of submissions. One sees the second reading speech. If I might say, just for the purpose of completeness, the first reading took place on 3 November 1995. Of course, in the ordinary way, first readings do not go into the subject matter. The second reading began on 3 November. One sees in the first paragraph of page 1741 of the Hansard that this is another Bill which:
This is another Bill which proposes to implement the recommendations of the Law Reform Committee.
One sees the second-last paragraph in the right-hand column reference to the fact that the:
paper was distributed to members of the judiciary, magistracy, Law School, practitioners interested in the subject, law reform committees and commissions of other States, and the Real Estate Institute. All local commentators on the paper agreed that a case existed for reform and generally agreed with the proposals of the committee.
So the committee report has achieved the widest circulation. One sees on the next page in the second reading speech in the first column about 10 lines down:
Recommendations of the committee were that -
(a) legislation be enacted to ensure that in a terms contract the purchaser is given a right of notice -
and we stress the word "a right of notice" and one sees reference to clause 6 about the middle of that page where the honourable member records that:
Clause 6 provides that a terms contract for the purchase of land cannot be determined unless the vendor serves a notice on the purchaser requiring him to remedy the breach of contract.
And he summarises its effect. One then sees that debate was adjourned.
HAYNE J: Just before you go to that. I am lost obviously, Mr Garratt. What is it that you get out of this? I do not understand the point that you make based on these debates.
MR GARRATT: I am going to take your Honour, if I may, to the resumption of the debate. I was simply making certain your Honours had the fact that it was a Law Reform Committee proposal which had achieved the widest distribution before being brought to Parliament.
KIRBY J: I can tell you that you can have the widest possible distribution and nobody reads it. So that does not prove anything at all.
MR GARRATT: I might have passed up the second reading speech continuation. There are two sections. The one on top is the second reading speech continuation and the other is the treatment of the Bill in committee. To reassure Justice Hayne, there is only one passage in this first document handed up to which I refer. One sees, indeed, the resumption of the second reading speech from 4 November. There had been debate on the 4th which we do not place before the Court because it does not assist either way. The debate concludes one sees on the last page of this attachment with the Minister at page 1892, having listened to the contributions of all the members, just over halfway down the page, recording that he:
would like to express to members who have spoken to this Bill my appreciation of their acceptance of the principles embodied in it. The Bill attempts to give equitable protection, within reason, to both vendor and purchaser. I am sure it was not in the minds of members of the Law Reform Committee to suggest legislation which would in any way inhibit decent business practices, but one of the principles behind the legislation is to give a means of protection to purchasers which has not previously existed.
That is the very general statement. I then take the Court to the committee treatment to the Bill and in particular an amendment which was moved to clause 6 which, in our submission, is to be read in this context. Ordinary or decent business practices are not irrelevant to the construction to be given. One sees the Bill being treated in committee in the Legislative Council on 12 November. On the left-hand side one sees "Sale of Land Act Bill In Committee"; clauses 1 to 4, clause 5. One passes over to the next column and one sees recorded in the first complete paragraph in the third column across the page, reference to the fact that the Minister has referred the amendments to the Law Reform Committee:
which sees it its way clear to find favour with them. I also contacted the Parliamentary Draftsman who examined the situation in order that I could be satisfied that the amendments would meet with the accord not only of the Law Reform Committee, but also of the draftsman himself.
Then one sees in the next paragraph reference to the fact that:
I am satisfied with the amendments. One member of the Law Reform Committee, a Crown Law officer, is present this afternoon merely to give us any assistance we might require.
In that context - an amendment was then moved, further down that page, by Mr Medcalf to clause 6, clause 6 being the critical provision of the Bill. Mr Medcalf wanted to have the notice period of 28 days reduced to 14. There then ensues, over the next page and a half, a debate as to what is fair as between vendor and purchaser as to a period of notice and the function which it is to serve. I shall not read it full, but we rely upon it. We rely in particular on a couple of paragraphs on the following page. On page 2098 Mr Medcalf is speaking to his amendment, and shortly before halfway down the page there is a paragraph beginning:
I believe we should try to look at this fairly from the point of view of both parties - namely, the purchaser and the vendor - and not only from the point of view the purchaser. For this reason, 14 days would be an equitable compromise. A fortnight would enable a person who was in arrears to look around to find the instalment. Of course, if he could not get the instalment it would not matter what the period was. I consider that 14 days should be sufficient time for an average purchaser to find the money. After all, it is no only 14 days after the amount becomes due but 14 days after the notice has been given. In the first place there is a date for payment of the instalment, then a notice, then a period of 14 days, or 28 days as has been suggested. If the notice were not sent for a week or two that would represent additional time.
The Minister observes:
The notice could be sent the next day.
The Leader of the Opposition interjects:
He may not receive it.
Mr Medcalf responds:
No, he may not receive it. However, there is a provision for receipt of notices in that the average contract usually provides that a person will be deemed to receive a notice in the ordinary course of post. I believe there is something in the Property Law Act on this subject but it escapes me at the moment. I think parliament amended that legislation with regard to notices. Certainly there is now a method of sending notices.
HAYNE J: What proposition of law do you contend for that is supported by that course of debate?
MR GARRATT: That it is the intention of those bringing this measure before Parliament or voting on it that service is not restricted to actual service, that service may be effected by other means such as those in the provisions in the Property Law Act or the Interpretation Act and that it is consistent with the measure of protection afforded by the Bill or the Act, as it became, that in an extreme case the notice may not be received at all.
McHUGH J: That may be so because of the provisions of section 76 of the Act. Like Justice Hayne, I do not see what you are getting out of this debate. In its natural and ordinary meaning the word "served" means give or deliver unto and it need not be by personal service. It can be by post, it can be by any number of means but it must be given or delivered to the person on whom it is served and here the critical date is 11 September.
You have to terminate the contract on the date you did. You have to show that this default notice was served on the respondent on or before 11 September. Now you cannot point to anything in section 76 to get you home and nothing in the contract enables you to say that this document was given or delivered to the respondent by 11 September. He never got it, it was never given to him, it was never delivered to him by that date.
MR GARRATT: If I may say, your Honour, the fallacy in the proposition advanced by your Honour, in our submission, is that your Honour perceives in the use of the word "served" a requirement in the intention of Parliament that the document actually be received at some point.
McHUGH J: Well that is the ordinary meaning of "served". I have just had a look at half a dozen cases in Stroud's dictionary and that is the ordinary meaning of it.
MR GARRATT: In our submission, when Parliament enacted this provision, intending that "served" have a meaning as defined in interpretative provisions such as the Interpretation Act or the Property Law Act Parliament plainly contemplated, as shown by the debate, that a document might be served for the purposes of section 6 effectively from a time even though it is not received, and time would run from that time even though the notice is not received.
McHUGH J: That is true but that arises by reason of the terms of section 76 together with section 75.
MR GARRATT: But that is the concept of service with which we are working, in our submission, in section 6. It is not, in our submission, actual delivery, actual receipt, it is at least that but, in addition, service by any means apt to bring a document to the attention of the person to be served in which case the time of service is the date of the implementation of those means and time runs from then.
KIRBY J: Do you accept Justice McHugh's assertion that you cannot get any help out of section 76?
MR GARRATT: No, not at all. Section 76, in our submission, plainly shows Parliament taking, in addition to actual service, three, four or five, other modes of service and treating the person as served by the occurrence of an event which is not receipt of the document.
McHUGH J: Section 76 gives an extended meaning of the word "served".
MR GARRATT: Yes.
McHUGH J: But you cannot get any help out of it. You cannot bring yourself within 76. So you have to fall back on the contract and you have to say, "Well, if we serve this document in accordance with the contract, we serve it in accordance with section 6". Now, the natural and ordinary meaning of the term does not help you and I cannot see a single word in the debate that helps you. This precise proposition for which you are contending was never put. They are talking in generalities. It is one or two members of Parliament, to begin with. This is a new terror for those bound by statutes, that some remark made by a single member of Parliament, in some way, two members of Parliament, alters the ordinary and natural meaning of words.
HAYNE J: Can I add to half remembered effects of the Property Law Act, to boot.
MR GARRATT: This is not some fleeting observation. We have a debate focussed in committee on an amendment to clause 6 of the Bill. The debate involving the proponent of the amendment, the Minister responsible for the Bill who has members of the Law Reform Committee in Parliament or a member in Parliament for the purpose of the debate and the Leader of the Opposition. One could not have a more focussed crucible of parliamentary intention or attention than that conjunction of forces. It is our submission that it is a mistake to start from a notion of what the ordinary meaning of "served" is in section 6 when Parliament has said, ordinarily the word "served" permits service by means other than actual service.
McHUGH J: It has not said that at all.
MR GARRATT: Well, it is our submission that when one sees in section 6 the word "served", one looks at that statute, one sees what Parliament has said generally about the meaning of the word "served" and one asks oneself, does "served" have the meaning which Parliament generally contemplates, or must it have some narrower meaning? In our submission, one cannot say it must have a narrower meaning of actual service in that context.
McHUGH J: That is true, Mr Garratt, but one can surely say with some confidence this, that it does not have a wider meaning than what Parliament has said in section 76?
MR GARRATT: We disagree. What Parliament is requiring is service. It is saying the document must be served. We offer you, says Parliament, various modes of serving a document, only one of which is guaranteed to come to the attention of the parties. The others are apt to come to the attention of the party. In using the word "service", in our submission, Parliament is doing nothing more than saying, "You may use a means, or the documents can be served by a means which is apt to come to the attention of the party." We are not - -
GAUDRON J: One of specified means which are apt - one of a number of specified means. You have to go beyond it to say it includes a means not specified by the Parliament.
MR GARRATT: Yes, and in section 76 what Parliament says is you may employ one of these means, not that you must. They are not exhaustive. It is our contention that the Parliament has not intended to deprive the parties of their ordinary contractual freedom to stipulate for themselves a mode of service which is apt - perhaps the most apt means of bringing a document to the attention of the party to be served. We say it is impossible to read into section 6 a construction of the word "serve", given where it appears and how it appears, which deprives parties of an ability to agree on what is plainly a mode of service and, indeed, one which is even more apt than those which Parliament has offered in section 76.
GAUDRON J: Do you rely on section 56 of the Interpretation Act?
MR GARRATT: Yes.
GAUDRON J: Well, where is the power? Is section 76 conferring a power, or specifying a procedure? Section 56(1) seems to be limited in its application to provisions which confer a power.
MR GARRATT: I take the force of your Honour's observation that certainly section 76 is not conferring a statutory power. But we would say that, at least by analogy, section 76 is to be read as a facultative provision - analogy with section 56 - - -
KIRBY J: I suppose you could say, in its ordinary meaning, by the use of the word "may" and by the "or" at the end of each of the subparagraphs it contemplates that, having regard to the options that are available and those which apply, for example (d) only applies to corporation, the server may, at its option, chose one of any of the alternatives or all, but the problem is, as I see it, that (a) does not apply because it is personally, (c) does not apply because you did not leave an address, (d) does not apply because it is not a corporation; therefore you are limited to (b) by post, in accordance with section 75. That takes you back to section 75 and you have got four problems there: "deemed", and the debate we have earlier; "pre-paid post", well his Honour determined that against the respondent, and that is not reargued; "last known address", well that is not the specified address in the contract, it is the last known address, and you knew, because of the faxes - - -
MR GARRATT: There is an absence of evidence on that point, your Honour.
KIRBY J: Very well, unless the contrary is proved, and the contrary has been proved.
MR GARRATT: Your Honour, I will need to address, and perhaps this is as good a time as any, a submission to the Court about some evidentiary matters. It is this: your Honours will recall how the matter was dealt with before Justice Owen; he records it in his reasons that the parties filed affidavit material in relation to the originating summons. It came on for hearing on 15 April. Four arguments were advanced which were based on the construction of the contract. The matter then was stood over until - your Honours will see the history of it recorded, I should say, in the appeal book pages 50 to 51. The principal debate came on on 15 April. At the bottom of the page, line 45, his Honour records it:
was listed for hearing on 15 April 1996. At the hearing I heard from the solicitors for both parties. I then took the unusual course of acceding to a request by the defendant that he be permitted to make additional submissions himself. During these submissions the defendant raised an argument that had not been disclosed in the written outlines.....I told the parties that I would entertain further written submissions provided that they were lodged within 48 hours and were limited to that one issue. On 17 April 1996 I received a letter from new solicitors saying they had been appointed to act for the defendant. They enclosed written submissions dealing only in a most peripheral way with the issue upon which leave had been given and raising entirely new issues. The solicitors sought leave to make further oral submissions.
This was a most unusual and unsatisfactory situation. With the utmost reluctance I decided to grant the defendant a further indulgence and I re-opened the matter for oral argument......Further argument was heard on 19 April 1996.
I turn to page 52. One sees at line 20:
At the hearing on 15 April 1996 four issues were identified and argued.
And they are listed. At the bottom of the page, line 50:
When the hearing resumed on 19 April 1996 the focus shifted. The defendant raised a fifth issue -
This is after all the evidence is in -
namely, that the service of the Default Notice was governed by the SLA and the Interpretation Act rather than by the Contract and that it was not properly served in accordance with the provisions of those statutes.
And then his Honour gives his reasons and one sees at the end of his reasons his Honour saying, at page 71, line 12:
This conclusion makes it unnecessary for me to rule on the specific objections which the defendant submitted would have invalidated the Default Notice had SLA applied. I can say briefly that the question whether the notice was sent to "the last known address".....is a different issue from the "address for service" problem raised under clause 21(1)(b) of the General Conditions. It may have ended in a different result but there are subjective elements to the dispute that may well have necessitated the taking of oral evidence.
Then deals with another matter and towards the end of that paragraph he, in the last sentence, says:
On the other hand, there was no evidence as to what constitutes the "ordinary course of post" for the purposes of s75(1). That would be a matter of evidence.
So what his Honour plainly contemplated was, having allowed these arguments on section 75 in at this very late stage without necessary evidence having been taken on them, had they been determinative he would have allowed - he, in fact, would have required the presentation of any evidence which the parties wanted to put on those matters. What we say in this Court is, if ultimately the Court comes to the view that the matter has to be resolved by reference to those factual matters implicit in section 75(1), then the matter should be remitted to the trial judge for final determination.
KIRBY J: Yes, but the critical one of those factors is the one "unless the contrary is proved" and the contrary was proved. There was no dispute and you outlined the facts that the actual receipt of the notice was at a later date.
MR GARRATT: No. What I said, your Honour, was that Mr Thorpe collected the notice on 3 October from the post office. There would be debate, if it became necessary in the context of section 75(1) and those factual issues, as to what "delivery" means and whether, indeed, when the postman goes with the article to 16 Beagle Street on the day when he went and left the card saying "no one is home, please come to the post office" that, in fact, in itself was not delivery.
GAUDRON J: Of the notice?
MR GARRATT: Yes, but those are evidentiary matters and the legal matter which would in that limited outcome, we say, need to be referred back to the trial judge.
McHUGH J: But it is the service - - -
GAUDRON J: I am sorry, was that a suggestion that you put at any stage below, albeit that the issue arose, as it were, towards the end of the proceedings at first instance?
MR GARRATT: It was the trial judge's handling of the matter.
GAUDRON J: Did you ever put that delivery of the card from Australia Post telling the man to come to the post office was ever delivery of the notice?
MR GARRATT: No, that was not formally put.
McHUGH J: And it cannot be put on the construction of the section, can it, Mr Garratt, because what the section says:
unless the contrary is proved, to have been -
that is the service -
effected at the time when the letter would have been delivered in the ordinary course of post.
Well, it does not matter what the ordinary course of post was or when it would have been delivered in the ordinary course, what was proved here, that there was no service effected until 3 October.
MR GARRATT: We would say that the intent, your Honour, on that view there never was a surplus because he collects the article rather than he is, in effect, physically served. But I suppose that would be unreal.
McHUGH J: Once he reads it, it is served on him. It has been given to him or delivered to him, or whatever you - - -
MR GARRATT: But that is not what the statute says. It says "served" and, indeed, if your Honour were to leave the article with the person to be served's mother, give it to her, actually serve it on her, knowing that she is not he and - - -
KIRBY J: Well, what work has this phrase - - -
MR GARRATT: - - -she later gives the article to her son who reads it, that would not be service on him in any active sense.
McHUGH J: Why not?
MR GARRATT: It would not have been served. He may have got it. He may have learnt about it, just as he - - -
McHUGH J: Why not? If you look at what Lord Esher said in one of the cases in the last century, it just simply means "given to" and "delivered to". And other cases talk about actually receiving notice of it.
HAYNE J: Time may run only from the point where mother gives it to him rather than from the point where the process server hands it to mother, that is a separate question. He is served.
MR GARRATT: Yes.
KIRBY J: What work does the phrase "unless the contrary is proved" have to do in your construction of section 75(1)?
MR GARRATT: What we say is to - and there are two points about that, your Honour. First, if one is looking only at section 75(1), and that is the only provision which applies, then it offers the person served the opportunity to defeat service by disproving delivery, and that is what the High Court said in Fancourt. It tells you nothing about actual service. It allows you to defeat the deemed service by defeating the event which gives rise to the deeming, namely the delivery.
KIRBY J: It does not undo the deeming, it undoes the receipt by whoever it was that constitutes the deeming.
MR GARRATT: No. As the High Court said in Fancourt, the hirers of the sapphire equipment, mining equipment, all gave evidence that they had not received the notice. It had not come to their attention, but the High Court said that is neither here nor there. The statutory mechanism is that delivery is the equivalent of receipt and all those words at the end allow you to do, is if you can disprove delivery, nullify receipt. But it is not sufficient to adduce any manner of evidence about not having received it. That will not undue the deeming.
KIRBY J: Is that said in a short passage in Fennell? This is Fancourt v Mercantile Credits, is it?
MR GARRATT: Yes, reported in [1983] HCA 25; 154 CLR 87. One sees, on page 95, the provisions of the Queensland Act set out. One sees that one may serve by sending:
by properly addressing, prepaying, and posting a letter.....and
(b) Unless the contrary is proved, to have been effected at the time when the letter or packet would be delivered in the ordinary course of the post."
so that, the language is very similar -
In the present case, the notices were not returned undelivered and there was no other circumstance which suggested that they did not reach their destination.
Further up that page, though, you will see the evidence which the appellants gave. About a third of the way down:
The appellants swore that they did not receive the notices but it was not contended that this amounted to proof that they were not served with them. Such a contention would have been difficult having regard to the fact that there is nothing to show that the notices were not delivered as addressed and having regard to the fact that s. 42(1) clearly contemplates in pars. (b) and (c) service other than personal service.
And then, over the page, in relation to this deeming provision, second line:
Sub-section (2) is merely intended to allow evidence to be called to rebut evidence of the doing of those acts which are deemed by s. 42(1) to constitute service. Paragraphs (b) and (c) of s. 42(1) contemplate the possibility of something less than actual receipt by the person to be served.
McHUGH J: The passage that supports you is at the top of page 97.
MR GARRATT: Yes.
McHUGH J: And I must say, it is contrary to the view I would have taken of the section.
MR GARRATT: I am just coming to that, but I was setting the context so that the Court could see what the evidence had been, and was. Then there is reference to the line of cases, and that is cited in the judgments below, and then the result at the top of the next page. I suppose I should - I do read the lot of that, but the particular sentence is, again, I suppose about 15 lines up from the bottom of the left-hand column in 96:
The effect of the cases appears to be that proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of the post and cannot be established as having taken place at any other time. The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service, notwithstanding that service by post is in the circumstances permitted and the requirements of the Interpretation Act 1984 are observed.....It may be thought that there is an anomaly in such a result because it means that , notwithstanding the adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery. It is, however, unnecessary to pursue these decision here save to remark that they are all cases in which delivery was disproved.
GAUDRON J: And that is the situation in this case.
McHUGH J: But it is the next sentence that is the one that supports your argument:
Despite remarks in the judgments about non-receipt, it was non-delivery which was significant because the second limb of section 26 of the Interpretation Act refers to proof of the contrary of delivery.
That does not, with great respect to their Honours, seem to me to be correct, I would have thought, looking at it.
MR GARRATT: They continued - or five of them jointly - - -
McHUGH J: Yes, I know.
MR GARRATT: - - - to say:
As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery. It follows that the application of section 39(1) of the Acts Interpretation Act in no way affects the proof of service of the notices in this case in accordance with section 42(1)(c) of the Hire-Purchase Act -
McHUGH J: They take the view that the words "unless the contrary is proved" is referring to delivery and not to service which is the antecedent of the clause I mean, delivery does not come into it right until the end.
MR GARRATT: But these provisions are not - the provisions obviously derive back to the English interpretation legislation at the end of the last century.
McHUGH J: No, I would have thought, with respect, that the remarks about non-receipt in the earlier cases was correct and that their Honours were wrong. However, that is what we have said, so you have got that in your favour.
GAUDRON J: It does not help you, though, does it, because non-delivery was established?
MR GARRATT: Two points, your Honour, if I may - I am sorry, I did not mean to cut you off.
GAUDRON J: Non-delivery in the ordinary course of post. If you sent a letter by certified mail or something of that effect which does not get delivered, you are required to go and get it yourself.
MR GARRATT: Two points we would make. First, that that is on the facts. On the question of the law - and I will come back to the facts - on the law, when one is looking at the notions which Parliament is invoking by the words "served" one sees that Parliament is, when it uses that word in a context such as this, contemplating that parties may employ a means apt to bring a document to the attention of the party to be served. The document will be treated as having been served once those means are employed, and that is to be treated as the equivalent of actual receipt. That is on the level of interpretation, and we say that is just what Parliament is doing in section 6. When one looks at the debate in the Legislative Council plainly that is the context. Similarly, that the parliamentarians are considering the issue, that provided the - the parties may agree, and Parliament allows them to do so, to employ a means other than actual service which will be effective according to its tenor.
CALLINAN J: You only have to go to the post office to collect it if you are not at home when the postman comes, is that correct?
MR GARRATT: That is the normal course, your Honour. Then the argument becomes this: if you do not ever go to the post office, does that mean you have never been served?
CALLINAN J: Was there any explanation as to why the respondent took so long to collect the notice? Was there any evidence about that?
MR GARRATT: None at all. All the respondent's affidavit says is he cleared his mail from time to time. Of course, we do know from having seen that letter that he already knew before 19 September because he already had a copy of the default notice what was coming.
KIRBY J: The inference is that he had moved his house, he had moved to next door to the development property and he was busily and merrily exchanging faxes at his business address. He might have thought that this was some far lost relative who was trying to contact him and thought they can wait because it could not be possible that you would try to serve him there because you were always sending him faxes to his business address. Anyway, this is all speculation.
I mean, it does seem Fancourt focuses on delivery as distinct from service and says that, in order to get out of the presumption, you have to show non-delivery as distinct from non-service and the policy that would lie behind that, quite apart from the language of the Act, is upholding certainty in formalities of delivery.
MR GARRATT: Decent business practices as referred to in the parliamentary debate.
HAYNE J: And indeed, may serve also to highlight the distinction which the Interpretation Act draws between service by post and service by registered or certified post. The means of service adopted here was certified post, was it not?
MR GARRATT: Yes, your Honour.
HAYNE J: Which does not ordinarily mean the mail simply being delivered to the nominated address. It must be handed to someone and signed.
MR GARRATT: The contract allowed for simply post, but the solicitors, as a precaution, employed certified mail.
McHUGH J: I know and curiously enough they did not ask for a receipt . On the document, I remember seeing it somewhere or other, the actual receipt - they did not ask for a receipt. "Do you require a return receipt?" and they have ticked the "no" box.
HAYNE J: 75(1) may be drawn bearing in mind the ordinary course of prepaid ordinary post leaving 75(2) to deal with the problems of certified mail. Delivery therefore, in 75(1) may have about it the notion of simple delivery by leaving in the mailbox without need for cards, calling at the post office and the like.
MR GARRATT: Yes.
HAYNE J: Which leads me back to the question, your fundamental contention must remain, must it not, that section 6 notwithstanding, the parties may stipulate for means of service other than the 75, 76 means?
MR GARRATT: Yes.
KIRBY J: It was argued below that 75(1) did not apply because prepaid post did not apply to certified post. His Honour the primary judge determined that against the respondent and that has not, I think, been reagitated.
MR GARRATT: Precisely. No reference to considerable authority; he resolved the point.
McHUGH J: There is no notice of contention on the point.
MR GARRATT: No, not at all.
MR GARRATT: No, not at all. There is one passage which I have not referred to in the legislative record, or the parliamentary record. In the following column of the Legislative Council debate, on page 209 - - -
KIRBY J: Just before you go into these mysteries of the debates, you seem to be terribly interested in getting us into Parliament - I am more interested in the terms of the Act. What about the words at "last known address"? I mean, that is not the same as the "specified address" or "the address nominated in the contract", it is the "last known address". The "last known address" to you, the one at which you were merrily sending your faxes, was a business address.
MR GARRATT: As your Honours have already seen, Mr Thorpe is writing in the third person as if he is a solicitor himself, which he is entitled to do, and what he is doing, in our submission, is nothing more than really using his work address in the same way that anyone uses a solicitor's address, as an agency address. It is not his address, any more than my chamber's address is my address, in this context.
KIRBY J: But it would be your last known address if I was engaged in correspondence with you. I think that is an important distinction between the statute and the contract. The contract has provision for nominating an address, but the statute addresses attention to the factual question - what was the last known address? Your client's solicitor, quite understandably, covered his tracks by going to the nominated address but if he had really wanted to cover his tracks about the last known address, he would have also sent the fax off to the address to which he was sending all other correspondence.
MR GARRATT: As an additional, supplementary belt and braces - - -
KIRBY J: Arguably, that was the last known address.
MR GARRATT: In our submission, no, your Honour. I mean, Mr Thorpe had been in practice at that address for a very long time and it is not his last known address, it is his professional address. The known address that we are given is the one in the contract, 16 Beagle St. We later learned that after we had served the default notice, that he no longer resides there. He writes telling us that. But, the fact that he also has a professional address does not mean, and we correspond with him, that we now know that his last known address has changed. "Last known address" has a linear quality about it which suggests there is only ever one last known address. There are now two or three addresses which are last known. We would say "last known", in this context, means the address at which he is residing. He may have a professional address all the time.
KIRBY J: In favour of that construction is that if this is a dictionary and the statute is trying to provide with particularity, specificiting and clarity, the nominated address, the one address to which you send it, then you are not going to be having a system whereby you can give it to all and sundry addresses. It is trying to define which is the address and that will be the one address that engages the statute.
MR GARRATT: Yes, exactly so. Say, for example, if he wrote to us - he went on holiday and wrote a letter to us, that does not become his last known address, for our purpose, we would say. We would still be obliged and entitled to send the default notice to the address which was his permanent address, as known to us, as opposed to a professional or a temporary or some other address.
I had intended simply to draw to the Court's attention in the Parliamentary debate, in the next column of the conclusion - - -
KIRBY J: Do not let me take you off that. It is always light relief to go to the parliamentary debates after looking at the statutes.
MR GARRATT: To the response of the Minister, simply to point out in the second paragraph in the second column on page 2098, the reference to the Minister in balancing this question of 14, 21 or 28 days. What the parliamentarians apparently have in mind is that;
it will not alter the fact that the purchaser is a person who has a continuing prior knowledge of his obligation. He knows he is making a purchase and he knows what his commitment is.
That is the conclusion of this sequence about, well, he may not get the notice. Yes, it is true, he may not and may be served under the Property Law Act or some other provision, but, says the Minister, in balancing this thing, never lose sight of the fact that he knows what his obligation is and he must know that he is in default. That concludes the references to the Hansard record that I was to make.
We say in relation to section 6 that given the eminence and the quality of the people who were drawing up the proposal - the Bill was prepared by the Law Reform Committee and pored over obviously by parliamentary counsel - the omission of the word "personally" in section 6 is of significance. I mean, had it been the intention to require personal service, nothing would have been easier than to have stipulated for it, but we say that was not the intention of Parliament. That is shown by Parliament's writing of this legislation in the context of its own dictionary and shown by the debate in the House about the provision. Personal service was not what was required or contemplated.
KIRBY J: If that adverb had been added, you would have been up here saying, "Well, it is just `personally' as it is deemed."
MR GARRATT: I might pass to the respondent's submissions. The platform of the respondent's decisions is the contention that the word "served" in section 6 has the natural and ordinary meaning which you would ascertain and which you arrive at independently of section 76 and the use by the writing by Parliament of this legislation in the context, we would say, of its own dictionary. Our submission is that that is not the way in which one goes about the interpretation of section 6. One must read it as Parliament intended it to be read, in the context of a dictionary which Parliament has for words unless you see a contrary intention in the legislation and one does not say that and the respondent does not assert that.
The respondent says, and we agree, "served" in section 6 picks up the language of section 76. It invokes that very dictionary and we say that is right, as all four judges below said, and that being right, you cannot say, invoking that dictionary you, therefore, must assume a natural and ordinary meaning which is one only of the meanings - - -
GAUDRON J: But where does this take you? You have still got to come back to an argument that you can serve by some means other than those specified in section 76, do you not?
MR GARRATT: Well, our point, your Honour, is this, that what Parliament provides in section 6 is, notwithstanding any stipulation to the contrary, a notice must be served and what we say that means is provided what you do meets with ordinary notions of service or the means you employ are apt to achieve service then you have done and you have not evaded what Parliament requires.
KIRBY J: Forgive me if I am wrong, but I understand your argument to be, right or wrong, section 6 says you have got to serve.
MR GARRATT: Yes.
KIRBY J: There is a special provision in the Interpretation Act of Western Australia, a general provision, that says service can be done where it appears in an Act in one of four ways. You lock into the second way. That takes you to 75 and you say you meet all the requirements there. Is that correct?
MR GARRATT: No. We say, yes, you go to section 76, it says you can do it in one of these ways. That shows you that what is being meant by "service" is not actual service, but what is being employed by Parliament is the general notion of service; employing a means to bring a document to the attention of another.
KIRBY J: So you do not rely on section 75?
GAUDRON J: Well, you do not claim to have satisfied it.
MR GARRATT: No. In the alternative, if we are forced back to and those issues came up, the evidentiary matters which his Honour reserved, yes, then we have to, but our primary submission is, Parliament uses in section 6 a notion of service which is, if you like, a meaning such as this, the employment of means, acts, to bring a notice to the attention of another, whether or not they actually succeed. But as long as you do that you are doing what Parliament commands; you are serving a notice.
KIRBY J: No, but if it is a dictionary you have got to conform to the dictionary.
MR GARRATT: The dictionary, we say, illustrates what the meaning is that Parliament is employing; it is employing a meaning of the word "served" which is the one I have indicated. It is not defining a catechism of service, we say.
KIRBY J: It looks like - what you call, a "catecism"; I would normally reserve catecism for something more important than the service of notices. It has got a list of four possibilities and each of them is linked by the word "or"; normally that would be exclusive, would it not? It is not as it if is a non-exclusive list; each one of them is an alternative, but there are not any other possibilities mentioned. They exhaust the field.
MR GARRATT: We say they do not exhaust the field, in the sense that Parliament is offering or allowing a range of options, but not to be interpreted as intending an exclusive range of options. It is saying, where were you served, and we do not in the statute require personal service, you may do any of these things. Parliament is not saying, but if you do not do at least one of these you will not have effectively served, and we say that is the point of distinction. We say what Parliament meant in section 6 when it used the word "served" was the employment of a means, acts, to bring a document to the attention of the other side.
KIRBY J: Parliament was saying you can do it one of these four ways, and we do not really care how you do it, you can do it any old way you like, we are just giving you these four examples. I mean, that does not seem likely.
MR GARRATT: Exactly. We are giving you these four examples. We are not saying you must only use these four examples.
KIRBY J: But this is a matter of precision and this is a general statute that is requiring precision, because the purpose of Parliament is to ensure a certain time.
MR GARRATT: The purpose of Parliament is to ensure the ready measurement of a certain period of time, not necessarily that the purchaser has actually had that period of time. One sees that because the document had been left but not read, not received. The document may be delivered but not opened or got, I should say. That is what Parliament is addressing.
McHUGH J: Well, it is a bit misleading on your argument, in any event, is it not, to be talking about sections 75 and 76 the way you seek to invoke them because they are found in the Interpretation Act and the relevant Interpretation Act 1918 , when the Sale of Land Act, section 6, was passed, was the 1918 Interpretation Act?
MR GARRATT: Yes.
McHUGH J: So, if one was looking for the dictionary of "served", as the Parliament would understand, it would be the 1918 Interpretation Act, would it not?
MR GARRATT: As at the time that Act was passed, yes. And then when the 1984 Act was passed, it provided, in section 3(1), that its provisions were to apply in lieu of the Interpretation Act.
McHUGH J: Well, I accept that, but that is not the way you have been seeking to use sections 75 and 76. You have been seeking to use them to give content to the word "served" in section 6. What I am putting to you is they cannot be used for that purpose.
MR GARRATT: In our submission, they can.
McHUGH J: But how can they? One Act is passed 14 years earlier.
MR GARRATT: In Parliament, in the later Act, has made plain that the use of the word "served" in the earlier Act is to be given the new meaning.
McHUGH J: I accept that, no problem about that, and you can rely on those sections to effect service. But your argument has two strands, as I understand it. First of all, you seek to rely on the actual terms of 75 and 76, but arguably - it has been held below in all events - you do not come within it. But you have a second strand of your argument. You seek to use 75 and 76 to interpret what Parliament meant when it enacted section 6, and what I am putting to you is that you cannot use it for that purpose.
MR GARRATT: I do not disagree with that, your Honour.
McHUGH J: Yes.
MR GARRATT: There was a similar set of interpretative provisions in the 1918 Act.
McHUGH J: Is there? I have sent out for them, to see if I can - - -
MR GARRATT: They are not as extensive as in 76, but they allowed service by post and so on - delivery, I think.
CALLINAN J: Mr Garratt, could I be quite clear? You say that there is no basis, on any of the findings, for you to rely upon section 75, is that correct?
MR GARRATT: What I say about section 75, your Honour, is there is a fall-back position. If the position is taken that Parliament - - -
CALLINAN J: I mean as at present. As at present, you do not assert that you could rely upon section 75. It may be that, if the matter goes back - if the matter were to go back, there might be evidence which would lead to a finding which would entitle you to rely on section 75 but, at present, there is no such basis, is that correct?
MR GARRATT: Yes At present, on the materials, I do not say that we come within section 75.
GAUDRON J: But how can you rely on it, even if you go back, when the evidence is that it was not delivered in the ordinary course of post?
MR GARRATT: There would be arguments in relation to that, at that time. We would want to - - -
GAUDRON J: Why? What arguments are there? The evidence is that it was not, in fact, delivered in the ordinary course of post until it was collected at some later time.
MR GARRATT: We would want to contend, if the matter goes back in relation to those factual questions, that, when the postman went to the door with - - -
GAUDRON J: But you have had ample opportunity to raise that matter. You could have raised it at first instance, you could have raised it in the Court of Appeal. Why would you be allowed to say, in this Court, that "We should have an opportunity to go back and raise that matter in the Court of Appeal."? I simply do not understand it.
McHUGH J: And could I just add to what Justice Gaudron is saying? If you had mentioned this argument on the special leave application, your application may have been rejected.
MR GARRATT: Your Honour, it was in the materials, as it were, in that the judge said, because of the way the matter had been argued, these further factual points, the whole -- -
GAUDRON J: Yes, but the factual points were not that the card delivered by Australia Post, telling the respondent to go to the post office was, in fact, delivery of the notice in the ordinary course of post.
MR GARRATT: I accept, your Honour, that the legal argument was not put and, if we are precluded, we are precluded. But what we say is that the way in which the matter arose at first instance, after the evidence was in, and the judge reserving it, we would seek leave, at least, to be able to advance what is a pure argument of law based on - - -
KIRBY J: But if it is a pure argument of law, this Court can deal with the matter just as well as the primary judge. I mean, the undisputed facts are the notice is sent; it is done by certified mail; it was received on a given date, and not actually delivered to the - the letter is not actually delivered to the respondent until a much later date. Now, all those facts are laid out. It is just a pure question of law, as you say.
GAUDRON J: And it was the issue on which you lost in the Court of Appeal, in essence, because you could not bring yourself within 75, is it not?
MR GARRATT: Yes, your Honour, because it was held to be not governed by the contract - outside the contract, governed though entirely by section 75, wanted evidentiary material.
KIRBY J: Is not the safe way to approach this that the obligation of a court is to apply section 6? True use of the semi-ambiguous word "served". You go to the dictionary and you, in order to get yourself out of what is a long line of authority that suggests that "served", and particularly in a purpose like this, is personal service. You have to try and fit yourself into one of the others and then that takes you to 75 and if you do not fit within it, then you are out. I mean, that would seem to be the logical way to approach the construction of the statute, not to be fussing around in the contract which is a private matter which cannot override the statute.
MR GARRATT: That is our second submission, as it were. Our first is that when Parliament uses "served" it is employing what is the ordinary concept of service. "Employing it" means apt to bring a document to the attention of another.
KIRBY J: Even if it undermines or diminishes the effectiveness of Parliament's purpose in section 6, you can give it any old meaning you like?
MR GARRATT: We do not say it undermines or diminishes it, your Honour, at all because of its necessary content. Employment of it means apt to bring a document to the attention and that is exactly what Parliament itself sets out in section 76 as alternative modes. Parliament does not undermine its own intention in section 76 - the intention of section 6 by section 76, nor do we by saying - - -
GAUDRON J: The difficulty with that argument, of course, is it leaves undetermined when the service would be taken to have occurred. When you go to 76 and 75 you have spelt out the times at which service other than personal service is taken to have occurred so there is no certainty on your argument of "apt to come to the notice" because it just leaves undecided when service would occur except when it, in fact, does come to the notice.
MR GARRATT: Not at all, with respect, your Honour. What one sees in section 76 is personal service and then various alternative modes and the time of service is the alternative event stipulated as the equivalent of service. Whenever one has offered a mode other than actual service one has to define the occurrence and it is the occurrence which is the timing of the service so it is the time of leaving or the time of delivery which is the event, the timing of which, dictates the service.
Similarly, if you were to employ any other means such as service by fax, it will be the date of faxing or service on a solicitor. It will be the date of service on the solicitor. Whatever the alternative event is will necessarily and inherently bring with it the alternative time or the substitute time for service because it is the timing of that event whether it be delivery, leaving, faxing or the like, in our submission.
GAUDRON J: I am not too sure that that would follow. Let us assume that the fax is sent to a solicitor's office, that being a permitted mode of service or that being a matter apt to come to the attention of someone. It is sent at five minutes to midnight on a Friday before a long weekend. No one would realistically consider that that notice was served on the Friday.
MR GARRATT: Maybe, but the main construction which would defeat that would also defeat leaving the document under the door at five minutes to midnight. Conversely, if it does not defeat that, then there is no reason why it should defeat the former.
HAYNE J: That is why it is leaving it at the place of abode. The Act fastens on leaving it at the place of abode rather than at the solicitor's office.
MR GARRATT: Or the last known place of business, for example, your Honour. It might be a disused business and - - -
KIRBY J: I still do not have clear in my mind how you say, where 76 provides the definition and provides four possibilities, one of which is where there is service by post, that it has to be done in accordance with 75(1), how you can possibly then try to say where there is a postal service that you can still get service even though you did not comply with 75(1)? It just seems to be an exclusive definition.
MR GARRATT: That is the further proposition which your Honour is drawing from section 75. Our primary proposition, though, is that the word "served", when one looks at it in section 6, carries with it a meaning which is not exhaustively defined in section 76. True it is one sense from 76 that Parliament in section 6 is using "served" in a sense other than actual service as the only means. We say that what Parliament - - -
KIRBY J: Against that are the "or"s which appear at the end of each of the subparagraphs, because they make it fairly clear that these are the - not alternatives, because you can only have two alternatives - these are the possibilities.
McHUGH J: I have no problem with that argument. I see no reason at all why a document is not served within the meaning of section 6 if it was served by fax, even though it is not delivered personally, it is not by post, it is not by leaving it, but the document is given to, or whatever it is, the contents are brought to the notice of the person concerned. Your problem here is that in this particular case this document was obviously brought to the notice of this man, the respondent, long before he went to the post office, because the letter, his letter of 19 September shows that he had a copy of it. He actually knew it; he knew it, and in every sense he was served. There is no doubt about that, to my mind, that is service within the meaning of the cases. The problem from your point of view is it was too late, having regard to the date when you gave the notice.
MR GARRATT: That is true.
McHUGH J: Can I just, while I think of it, notwithstanding what this Court said in Fancourt about notice and delivery, the history of section 75 would seem to suggest that what the Court said is not right. Let me tell you why. Because in its earlier form, section 75's predecessor was section 31 of the 1918 Act and it made it plain that it is service about which they are talking when they are speaking about the contrary to be proved. It says so in terms. Section 31(3) provides:
In the case of service by post, whether service by post is required by the Act or not, the service shall be presumed, unless the contrary is shown, to have been effected at the time when, by the ordinary course of post, the letter would be delivered.
So it is service that was presumed and you had the option of showing that you had not been served. Now having regard to the terms of section 75's predecessor, why should not section 75(1) be interpreted differently from what the Court said in Fancourt?
MR GARRATT: Well, your Honour, I must say I am taken a bit on the hop about that.
McHUGH J: Okay, you think about it.
MR GARRATT: I would need to read the provision, I think. Perhaps after lunch I could respond to that.
McHUGH J: Yes.
MR GARRATT: We come back to this proposition which is that, in our submission, Parliament is not in section 6 to be taken as stipulating that parties cannot agree for themselves on a mode of service if what they select is a means apt to bring a document to the attention of the party to be served. If they employ a means and one ordinarily might say, "Yes, that is a means of service," then one cannot say of section 6 or find in section 6, in our submission, an intention to prevent the parties from so doing. All that Parliament requires is the service of a notice and given that service may be performed in many ways, in our submission, it is not open to find in section 6 an intention to exclude the ability of the parties to agree upon what for them should be service.
McHUGH J: Well, you have put this proposition a number of times and some of the cases go so far as to say that there can be service when the relevant matter is brought to the notice of a person who is required to be served, but you want to go further than that. You want to say "apt", "apt" to be brought to that person's notice.
MR GARRATT: Yes, and that is employing a means of service and we would say Parliament does not exclude the contractual freedom of parties to agree upon a mode of service.
KIRBY J: I do not want to be tedious, but when Parliament says that you can do it in something other than the ordinary meaning, it gives an exclusive list, and you have not fitted within that list arguably.
MR GARRATT: Yes, I appreciate your Honour's view.
KIRBY J: That may just be my view, so do not waste your time on it.
MR GARRATT: Well, your Honour, I simply bring to a conclusion really a submission that one cannot, in our submission, find in section 6 one natural and ordinary meaning which, as the foundation for your Honour's argument, is then elaborated and only elaborated in a way which deviates from that meaning - - -
KIRBY J: It has to be a meaning which has two consequences: one, as Justice Gaudron points out, it fixes with precision, so that nobody is left in doubt as to a, not necessarily immediately ascertainable, but provable point; and two,that it does not frustrate the purpose of section 6, which is to ensure that there is a certain amount of time within which a purchaser can raise money, which is the usual problem in completion of contract.
MR GARRATT: We substantially agree with that. We would say that although the objective of section 6 is to afford notice, it is not its objective to guarantee notice. Parliament has balanced the matter in the way in which Parliament has by allowing the implementation of means which plainly enough do not guarantee notice. What we say is there is nothing unusual in that; that is what ordinarily happens when parties agree upon modes of service. There is rarely, in human affairs, a means of guaranteeing receipt and what we say is one cannot, in our submission, read section 6 as excluding the freedom of parties to, for themselves, determine what should be the mode of service and its timing.
Nor would we say, in relation to provisions such as the presumption at the end of section 75, that Parliament intends, by section 6, to exclude the freedom of the parties to waiver reliance on that provision or stipulate something else more certain for it. What one has in section 75(1), at the end, is the introduction of a personal right for the benefit of the party to be "served", to defeat the deeming by defeating delivery. It is, in our submission, a provision, a right, which is introduced solely for the benefit of the purchaser of a personal character, not for considerations of State or for all public policy. Therefore, it is a right capable of waiver, capable of being dealt with. Of course, the relevant law is to be found in Verwayen's Case 170 CLR 395 in the judgment of the Chief Justice at 405-406, of Justice Brennan at 424 to 426; and Justice Toohey at 473 to 475; and Justice Gaudron at 485 to 487.
We say that if, for example, this contract had said, "And the purchaser agrees not to rebut or rely upon the rebutting provision in section 75", there would be nothing preventing a court giving effect to that agreement. A mode of service would have been employed of the kind contemplated by Parliament and the parties, for the purposes of certainty, had agreed to waive access to the rebutting presumption, the presumption which allows you to defeat the deeming by defeating delivery rather than establishing non-receipt, because what is being dealt with is not service. The document has been "served". What one is dealing with is a power conferred by the Interpretation Act 1984 to defeat a fiction by another fiction.
We say that condition 21 is to be seen in just this way. What the parties have done is use a mode of service allowed for by Parliament but, for the purposes of certainty in their dealings, further agreed that any right to defeat the fiction by attacking its basis is waived. Instead, the parties place their dealings on the footing that two days, or 48 hours, after the date of posting shall be the time of service. They have employed a mode of service, they have not defeated service. They have simply, for their own purposes, established a certain conventional state of affairs.
That, in our submission, is not contracting out of section 6 in any sense, it is using the mode of service which section 6, itself, contemplates. It is using a deeming provision, just as Parliament does. It differs only in that - although Parliament, through section 75, allows disproof of delivery, the parties, instead of allowing for disproof of delivery, have substituted, for their own purposes, agreed certainty as to the timing at which this service by one of the means contemplated by Parliament is to be taken as having occurred.
So, that really brings us to our conclusion, then. Overall, we say that Parliament has used, in section 6, "served" in the sense in which I have indicated, and it does not exclude the right of parties, contractually, to use a means apt to bring a notice to their attention. Indeed, what we have done is use one of the means employed by Parliament - post. We have modified it by, instead of saying "last known abode" address in the contract, and that is the mode of service. We have also, for certainty reasons, agreed that the rebutting mechanism allowed for in section 75 will not apply for the purposes of our contract. So, if you use that mode of service, the timing of it is to be taken as 48 hours after the time of posting.
We would submit that nothing in section 6 is eroded by that, given the modes of service contemplated by Parliament. What we are doing is achieving certainty. Certainty in the contractual terms which you get with the contract. Certainty which does not require you to go through Acts of Parliament to find out where the answer might ultimately lie. We say that Parliament in section 6 is not to be lightly assumed to be wanting to take away from the parties that contractual freedom to achieve that certainty for themselves, given the means they have employed is a means apt to bring notice to the attention of the other.
Those, if the Court pleases, are the submissions of the appellant.
GAUDRON J: Thank you, Mr Garratt. Yes, Mr le Miere?
MR LE MIERE: If it please the Court. In our submission, the starting point is that which several of your Honours have referred to in the course of argument, namely, the ordinary and natural meaning of section 6 of the Sale of Land Act, and that requires that notice must be actually served on the purchaser, not less than 28 days before the vendor may terminate. That plainly requires service, in fact, respect the effect of the appellant's argument is to strike from the section the word "served" or to substitute for it some form of words which is to the effect of sending a notice by means apt to come to the attention of the purchaser. In our submission, the direct route to the answer in this case, is that that is not the plain and ordinary meaning of section 6 and there is no basis, in this case, for departing from that natural and ordinary meaning.
KIRBY J: Some support for that meaning is given by the words "not less than", I think, at least arguably. The section, read as a whole, suggests a parliamentary purpose of a certain amount of time, and that for the good reason of ensuring that its object can be achieved.
MR LE MIERE: Yes, indeed, your Honour. I wish to perhaps make some reference to the particular form of the words in relation to what I have characterised as the argument put by the appellant, which is to the effect that section 6 is a directory provision or has the effect that non-compliance with section 6 does not invalidate the notice. Perhaps, if I may, I would like to return to the point that your Honour Justice Kirby raises in relation to that matter.
KIRBY J: I did not hear the appellant use those tired old words "directory" and "mandatory".
MR LE MIERE: No. They have figured quite prominently below, certainly before Justice Owen and in effect, if not in words, appear in the outline of submissions. Perhaps, if I might put it this way, with respect, your Honour, we say that whilst those words are not used by the appellant in putting the argument to this Court, that is the effect of what the appellant is putting, because it is being put that notwithstanding the words in section 6 and, in our submission, the plain requirement in section 6 that there be service - and as your Honour Justice Kirby has drawn attention to, not less than 28 days notice is required - notwithstanding that, the appellant argues that the notice will be valid or effective provided that it is sent or in some way, some mode of service, to use my learned friend's expression, is adopted which is apt to come to the attention of the purchaser. That is, a quite different notion is sought to be introduced into section 6: instead of "service" the appellant would read in or would substitute for "service" the notion of adopting some method of communication which is apt to come to the attention of the purchaser.
If I might perhaps move from section 6 then to go to the Interpretation Act provisions. In our submission, the Interpretation Act in section 76 has the effect of extending the available means of complying with the requirement in section 6 of the Sale of Land Act for service. It has, in effect - it extends the notion of service in section 6 of the Sale of Land Act and, of course, if the vendor, if the appellant in this case is able to satisfy the requirements of section 76 in relation to post, those of section 75 then, by that means, the requirement of service in section 6 of the Sale of Land Act is complied with.
What the appellant seeks to do, in our submission, is to engage in the logical fallacy of saying that because, in effect, the Interpretation Act provisions in section 76 extend the meaning of service in section 6 of the Sale of Land Act, therefore the requirement of service in section 6 which in its natural ordinary meaning is service in fact, is somehow abrogated, that is the argument has the effect, in effect, is that by extending the notion of service in a specific way and to a limited extent, by section 76 of the Interpretation Act, that is to have the effect of leaving at large what is or may be service.
That, with respect, is to give to section 76 of the Interpretation Act a meaning plainly at odds with what it says. Furthermore, within its own terms, section 76 extends the notion of service by providing that service may be effected in one of the four ways specified in section 76 of the Interpretation Act. One of those four ways is service by post. Then section 75 of the Interpretation Act deals with the situation where service is effected by post and the legislature in section 75(1) specifically provides that where service is effected by post - the introductory words of the section are:
Where a written law authorises or requires a document to be served by post -
I am sorry, returning to the Interpretation Act 1918, the words in section 31(3) of the 1918 Act were "in the case of service by post". This is not, for my present purposes, materially different. The point I make is that then in section 75 the legislator deals with a situation where service has been authorised or required by post, and provides that in such a case service will be deemed to have been effected when the document is delivered in the ordinary course of post, unless the contrary intention is proved. So that the legislature specifically provides that the party who is intended to receive the notice may prove, in fact, that he did not or that the document was not delivered at that time.
The interpretation for which, or the argument for which the appellant argues is to set at naught the specific provision in section 75 of the Act. The appellant can afford to say, in effect, that, notwithstanding that the legislator has said that you may serve "by post" in section 76, and in section 75 that where, in the case of service by post, then it is deemed to be served when "delivered in the ordinary course of post" unless the contrary intention is proved. The appellant says that that can all be disregarded and the parties may adopt some set of provisions which are not only different from but, indeed, inconsistent with, contrary to those which the legislature has set forward. We say that that is simply not a proper instruction of the Sale of Land Act and the Interpretation Act.
Returning to the provisions of section 6 of the Sale of Land Act, which, of course, was always the starting point, the requirement is that the vendor may not determine the contract:
unless and until the vendor has served on the purchaser a notice in writing specifying the breach complained of and requiring the purchaser to remedy the breach within the time mentioned -
that being 28 days -
and the purchaser has failed to do so.
We submit that those requirements must be met in total. All of them must be met in order for the notice of default to be effective, that is, failure to comply with any of those parts of the subsection invalidates the notice. We say that a departure from any of those requirements is invalidatory for three principal reasons. The first is because of the purpose and object of section 6 of the Sale of Land Act. We say that any other consequence would defeat the very purpose and object of the Act.
GAUDRON J: Which is?
MR LE MIERE: It might be put in these three ways, your Honour. First of all, it is a measure of protection for a purchaser. It is intended to give a purchaser warning that the contract may be terminated and, thirdly, it is to give the purchaser an opportunity to remedy the default, and the first of those is the most general one, that it is a measure of protection for the purchaser. One of the words in the second reading speech that my learned friend read to the Court when the Minister, Mr Griffith, was giving the second reading speech, he referred to one of the recommendations of the committee as being - - -
GAUDRON J: The trouble with these arguments is that they can be expressed in any of a number of ways. One could just as easily and legitimately say that the object of section 6 was to balance the rights of the vendor and purchaser, and, in fact, I think that is what was said in the committee.
MR LE MIERE: Only in this way, your Honour: in looking to see what measure of protection, or what right should be introduced for the purchaser, a balance should be struck between the rights of the vendor and the purchaser. But the object of introducing the section was for the benefit of the purchaser. Prior to the - and without section 6 in the Sale of Land Act, the vendor was able to terminate a contract without any notice and immediately upon a default by the purchaser. Perhaps I might invite the attention of the Court to the Law Reform Committee report, which I - - -
GAUDRON J: I think we are all familiar with the general legal situation prior to the enactment of provisions such as section 6.
MR LE MIERE: Indeed, your Honour, the committee, in the early parts of the report, when talking about, in essence, the reason for the committee inquiring into the matter, refers to the hardship to purchasers which can result from the legal position which then prevailed; that being that there was no requirement for any notice, no requirement for any time, no opportunity to remedy. The very purpose for this legislative change was to give to the purchaser a measure of protection.
It was then, in the course of determining what measure of protection should be given to the purchaser, what the terms of the amendment should be, that, not surprisingly, attention is given to trying to balance the rights and interests of the vendor and purchaser. But that does not detract from the point that the very purpose of the section was for the protection of purchasers and, in effect, to confer upon a purchaser a right which a purchaser did not have before and without that section. In my respectful submission, section 6 can be seen as, in effect, conferring upon a purchaser a right to notice, or a warning that the contract may be terminated and, secondly, to give to the purchaser an opportunity to remedy the default.
And the time is important, in relation to those matters. Indeed, in the debates which my learned friend has referred to, reference is made to that. My learned friend took the Court to that part of the debate in the committee stage where Mr Medcalf moved an amendment to the clause to reduce the notice period from 28 days to 14 days. And in the course of the debate upon that amendment, reference was made by one, I think, more than one member to the fact that the purchaser may require a certain amount of time in order to be able to remedy the default. Reference is made to arranging finance so that the purchaser may be in a position to remedy the default, being the failure to pay the money.
So, the period of time is important. It is significant - in my submission, the most significant aspect of the motion moved by Mr Medcalf in the committee stage, is that it was defeated and that, in committee stage, the Parliament considered that 14 days was not sufficient, that the purchaser ought to have the full 28 days in which to have the opportunity to remedy the default, to make arrangements for finance and so on.
All of those considerations point to the fact that both the receipt of notice, and to have the opportunity of the full 28 days notice and opportunity to remedy the default are at the very heart of section 6 of the Sale of Land Act, the very purpose for which it was introduced, and to allow a departure from that scheme is to defeat the very purpose of the statutory provision.
The second consideration to which I refer is the form of the words themselves, a matter which, I am not sure whether in this or in perhaps a different context your Honour Justice Kirby referred to earlier. The form of section 6 relevantly is that"
the terms contract shall not be determined or rescinded on account of a breach by the purchaser of any term of the contract unless and until the vendor has -
given the notice within the period specified, being 28 days. The two parts I draw attention to is the words "shall not", obviously being, to use the expression, mandatory or in terms of the provisions of the Interpretation Act, of course, "shall not" is to be given the word, or "shall" be given the word, must "shall not", must not, and importantly, in this context, the words "unless and until", so the "until" drawing emphasis to the temporal aspect that, in our submission, the full 28 days are to be afforded to the purchaser.
KIRBY J: Do you say there is a provision in the Interpretation Act relating to "shall".
MR LE MIERE: Yes, your Honour. It is section 56.
KIRBY J: Right. I will look at that.
GAUDRON J: Well, again, I think, that might be subject to some of the same problems. It is about a function, is it not?
MR LE MIERE: Yes.
GAUDRON J: The conferral of a function.
MR LE MIERE: Yes, your Honour. It is a different notion. Subsection (1), as your Honour drew attention to earlier, refers to "conferring a power". Subsection (2), "conferring a function". In my submission, it is not a distortion of language to refer to - - -
GAUDRON J: You can rely on the ordinary and natural meaning.
MR LE MIERE: Yes, indeed, your Honour. Perhaps, I need not labour any further on that.
The third factor that we draw attention to in submitting that a departure from the terms of section 6 invalidates the notice is, in some ways, an aspect of the first matter, and that is, we say, that section 6, in effect, confers a right upon a purchaser. It is an important provision and given that it ought not to be lightly construed so as to, in effect, not give that right to the purchaser when anything less than 28 days actual notice are received by the purchaser.
The outline of submissions referred to a decision of his Honour Justice Gummow in the Secretary Department of Social Security v Garratt [1992] FCA 337; (1992) 109 ALR 149. That is a case on a very different statutory provision and, indeed, the particular section or passage to which I drew attention was in any event strictly obiter in that case. It is for the force of his Honour's words which I take the Court. The case, briefly, was about social security provisions. The respondent had been in receipt of a family allowance provision. A decision was made by the department to terminate the allowance because of a failure to respond to a letter requiring some financial information.
The respondent having, in effect, asked for the pension to be restored, a decision was made to recommence the benefit and the relevant issue was whether that ought to be, in effect, backdated and, if so, to what date. The matter was decided on provisions which are not relevant to this point, but at page 156 his Honour Justice Gummow, having said that the basis on which he had then dealt with the matter was sufficient to dispose of the appeal, then said, about a dozen lines from the bottom:
But I should refer to some further submissions.
The result which I have indicated differs from that which would obtain if the cancellation had been reviewed upon application made by the respondent under s 173. There would then have been no discretion exercisable under s 168(4). The determination would take effect either upon the date of the cancellation (para (a)) or the date on which the review was sought (para (b)). Which of these was applicable would depend upon whether notice of the making of the decision to cancel the family benefit had been given to the respondent, within the meaning of para (a). On the facts, there had in truth been no such notification received by her.
Your Honours, the statutory provisions which his Honour was there referring to are found at page 153 of the report in subsection (4) at about line 27. It says:
A determination.....takes effect:
(a) if the determination is made following a person having applied to the Secretary under subsection 173(1) for review of a previous decision where:
(i) a notice was given to the person to whom the relevant pension.....was.....payable.....within 3 months after that notice was given; or
(ii)no notice was given - - -
KIRBY J: I hope you are not going to take us to every case of - - -
MR LE MIERE: This, your Honour, is the only case which I propose to refer to at all and I take this rather long way to get to what his Honour then said which is at page 157, starting at line 8. His Honour said:
Paragraphs (a) and (b) of s 168(4) are not directed to any particular manner of service of notices. They are concerned with the fixing of a date which is determinative of the right of persons in relation to pensions, benefits and claims under the Act. The date is fixed by criteria which operate favourably or adversely to those persons by reference to their action or inaction over a particular period after notice was given. The paragraphs operate after there has been, upon application by person or persons affected by it, a review by the Secretary under s 173(1) of the decision of which notice was given.
In this setting, the rights of persons should not readily be construed so as to fix upon something less than the giving of notice and to accept an imputed notification as sufficient for the operation of the legislation. The delay which has adverse consequences as specified in paragraphs (a) and (b) is delay after notice.
Now we say that analogy applies in this case that the section 6 of the Sale of Land Act 1918 has the effect of operating adversely or favourably upon the rights of the purchaser depending upon the action or inaction delay of the purchaser after the service of the notice, and it is an important right, a context is the termination of a terms contract, which may have consequences - the obvious consequence is to the purchaser. In that context we say, borrowing the words of Justice Gummow in that case, "in such a context or setting a meaning of section 6 should not lightly be construed so as to fix upon something less than 28 days notice in fact".
GAUDRON J: Would this be a convenient time, Mr Garratt?
MR GARRATT: If it please, your Honour.
GAUDRON J: The Court will adjourn at this stage until 2.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GAUDRON J: Yes, thank you, Mr le Miere.
MR LE MIERE: If it please the Court. Compliance with section - or with the statutory requirement of 28 days actual notice is a condition precedent to the exercise of the vendor's right to terminate the contract.
KIRBY J: Does it say "actual notice"?
MR LE MIERE: Well, in my submission, no, of course, the words do not appear in section 6 but that, in my submission, is the ordinary natural meaning of section 6. So, one starts from the position that that is the natural and ordinary meaning. Then, in this case, the appellant seeks to overcome that, to disregard, in effect, that condition by relying upon clause 21(2) in the General Conditions. Now, as the Court is aware, clause 21(2) of the General Conditions is, in effect, a deeming clause. It creates a fiction that the document was served at a particular time when, in fact, it was not. It deems a posted notice to be served:
at the expiration of 48 hours from the time of posting.
The parties may agree that that fiction is to apply to things done under the contract. They may agree to conclusively deem notices served by post to be deemed served 48 hours after the posting. However, they cannot agree to apply a fictitious meaning to the word "served" in the statutory requirement in section 6 of the Sale of Land Act.
KIRBY J: Justice McHugh referred to a judicial dictionary in which "served" has been given meanings. Have you got a best definition? Has this Court ever passed on what the word "served" means in its ordinary connotation.
MR LE MIERE: No, your Honour, I am not able to - - -
KIRBY J: We have just got to comb through all those dictionary meanings. Is it your submission that the word "served" prima facie means "personally served"?
MR LE MIERE: No. It means,prima facie, that it is actually received by, comes to the - is actually received by the recipient, to the extent that "personally served" connotes the actual handing - - -
KIRBY J: There is a bit of difficulty with that, is there not, that the problem with which the Sale of Land Act is grappling is a failure of the purchaser to make good the contractual obligations.
MR LE MIERE: Yes.
KIRBY J: And one explanation of that, that would not be entirely uncommon, is that the purchaser just disappears, or is uncontactable, or has gone overseas. It just is not performing the contractual obligation. Now, your meaning would impose, in effect, a veto by one party to the contract on being able to complete the contract. That is a bit unfair and unlikely that the Parliament would not provide that way.
MR LE MIERE: Yes, because Parliament, in using the word "served", is and is taken to have regard to the provisions of the Interpretation Act. Under the provision of the Interpretation Act that provides for a means of effective service which would enable the document to be effectively served notwithstanding the sort of situations your Honour refers to. So that if the purchaser has taken him or herself off to Bahrain or wherever, the document may still be served effectively by relying upon the provisions of sections 76 and 75 of the Interpretation Act. It may be done by delivering the notice to the last known place of address of the purchaser or by availing the vendor -availing themselves of the provisions for postal service.
Indeed, the substantive difference between the regime which the legislature has set in place and that which the conditions of contract put forward is that the Interpretation Act provides for a - or an evidentiary presumption that when notice is given by post then the document is presumed to have been delivered in the ordinary course of post but that, of course, the actual state of affairs may be established to contradict that.
What the conditions of contract do in clause 21(2), the substantive difference, is that it purports not merely to provide, as it were, an evidentiary presumption but to make that a conclusive presumption and hence, in my submission, it creates a fiction. So that even where it is, obviously as in this case, established that, as a matter of fact, the notice was not delivered, then the conditions of contract would have the effect that service of documents under the contract is deemed to be served and is effective, whereas on the statutory regime it is not. Now that provides no impediment to a vendor being able to give an effective notice. Indeed, as one or two of your Honours, I think Justice Hayne, in particular, remarked this morning, the particular provisions of section 76 can be availed of by a vendor and indeed some of them, even in the situation where a purchaser might even deliberately be seeking to evade service.
So those policy considerations do not provide any reason for departing from the natural and ordinary meaning of section 6 in the Sale of Land Act and the scheme of the Act, when taking into account the provisions of the Interpretation Act.
KIRBY J: Is it your submission that the four categories in section 76 are exclusive or may notice be given by, for example, fax; that not being one which was then provided?
MR LE MIERE: It is, but it is not necessary to our argument, your Honour. We do say it is exclusive but even if it were not, that would not assist the vendor in this case because even if section 76 is not an exhaustive list of the modes of service and some other mode of service may be adopted, such as the use of a facsimile, section 6 of the Sale of Land Act still requires that the service be effected 28 days before the notice can take effect. That is, there must be actual service; it must actually be received by, come to the attention of the purchaser.
So, we say, it does not - all of that - is not in the end to the point, whether or not it is an exhaustive list. The attempt which is being made by the appellant, as indicated in the outset, is to introduce into section 6 something quite different to the words. Again, whether or not "service" means "personal service", or whether it means personal service in the usual sense of actually being delivered by one person to another, or whether it encompasses any mode of service which actually results in the document being received by, or coming to the attention, of the purchaser, whichever it means, again, does not advance the appellant's argument because, either way, what section 6 requires is that it actually be received by, come to the notice of, the purchaser, not less than 28 days before the vendor may terminate the contract.
HAYNE J: Is that right? How can that sit with 76? Is not a construction of the two provisions this - that service may occur in many ways. Unless it occurs in one of the ways prescribed by section 76, the time at which service occurs is the time at which it comes into the hands of, perhaps comes to the attention of - I leave that to one side - the intended recipient of the notice. But if 76 methods are adopted the time of service is the time of the doing of the act specified in 76, such, for example, as leaving it at the premises.
MR LE MIERE: Yes, if I understand your Honour correctly, yes, our submissions are to that effect.
HAYNE J: But that means that it may be necessary in at lease some kinds of case to distinguish two questions: how may service be affected and when does service take place?
MR LE MIERE: Yes, your Honour, and that was again, if I following your Honour correctly, that was the reason for my submission that whether or not section 6 other than - except in so far it is extended by the Interpretation Act provisions, whether or not section 6 requires personal service or permits some other mode of service is a separate question from what I think your Honour would categorise as the timing question, that is the question of when such service takes effect. So that the submission which I make is that whether or not section 6 permits some mode of service other than personal service or service in accordance with the Interpretation Act provisions, that service, the timing of it, it must take effect when the document is received by or comes to the attention - - -
McHUGH J: Not document - writing.
MR LE MIERE: Yes, your Honour.
McHUGH J: Writing?
MR LE MIERE: Yes.
McHUGH J: It could be by way of the Internet.
MR LE MIERE: I was going to say, your Honour, start with the proposition that I saw in one case that it was said that reading a notice over the telephone is not to give notice in writing. One can see that point. Perhaps at the interface with the Internet it gets a little harder but I - - -
KIRBY J: Even I know the Internet comes out in electronic messages that look writing.
MR LE MIERE: The difficulty, your Honour, I suppose is that until the recipient actually prints it out and accesses it there are some difficult questions, or may be difficult questions in that situation whilst the form that it is, whether or not that meets the requirement of notice in writing and, whether it does or not, of course, is just highlighting the question or such an inquiry as focusing upon the question of the actual receipt or the coming to the notice, the attention of the purchaser.
All of those inquiries just serve to emphasise that, in this case, that is where the appellant falls down. Whatever mode - whether or not, as I have probably said already, section 6 permits some other mode of service, the question one comes back to is whether or not the document has been received by or come to the attention of the purchaser not less than 28 days prior to the purported termination and, of course, on any view, on any approach in this case, it had not.
The appellant to succeed must establish not only that section 6 permits some mode of service other than personal service and other than the four means provided for in section 76 of the Interpretation Act, but the appellant must go beyond that and show that section 6 of the Sale of Land Act may be complied with by doing something which does not bring about the result that the purchaser receives or has brought to his attention the notice, the written document, not less than 28 days before the purported termination and not in accordance with the section 76 of the Interpretation Act provisions.
KIRBY J: That is an arguable construction, but the other view might be that you are expected to get your own house in order and to be organised in such a way that you give an address for service, which is not an unusual thing to do, and to be able to get anything served at that address pretty promptly and the 28 days is time enough for you to organise yourself on those hypotheses. I mean, that is the other construction that is urged. After all, Mr Medcalf wanted to narrow it down to 14 days.
MR LE MIERE: He did.
KIRBY J: But it stayed at 28 days and 28 days is arguably enough time for you, from the time when it is served at the address for service, to get your house in order. You are the one who is in default of contract.
MR LE MIERE: Yes. Two matters, your Honour, that arise from what Mr Medcalf's proposed amendment - - -
KIRBY J: Do not worry too much about that. I am just saying 28 days is quite a term. It is a privilege. It is a benefit to you. You are in default.
MR LE MIERE: But there are two aspects to it, your Honour. One is the number of days and the other is that you actually get some notice at all. It is the first stage to talk about whether or not 14 days or 27 days even would be sufficient as distinct from 28, but if the appellant's construction is correct, if the contract may effectively deem some service regime to be effective, then that may, of course, or that permits to be effective a mode of service which results in the notice not coming to the attention of the purchaser at all and that, as we set out at the beginning, is contrary to the very purpose for which section 6 was enacted.
McHUGH J: Do you place any emphasis on the words in section 6:
served on the purchaser a notice in writing -
Arguably, "served on the purchaser" may require - - -
MR LE MIERE: Personal service, your Honour, is leading to - - -
McHUGH J: Personal service. But if that is so, that would probably mean that section 76 could not apply, because section 76 only applies where a law authorises or requires a document to be served, without directing it be served in a particular manner.
KIRBY J: That would defy 800 years of legal history, because you can normally serve on a party by their attorney. I mean, why should you have to serve it personally? Parliament would know that normally people give addresses for service, generally their solicitors.
MR LE MIERE: We do not go that far, your Honour, and do not need to go that far. Indeed, another argument, I suppose, in relation to 76 - there is also the question of whether this within section 6 would, in fact, be manifesting an intention to the contrary of the provisions of section 76.
McHUGH J: It is not a question of manifesting an intention, it is a question as to whether, within the words of section 76, it directs it to be served in a particular manner.
MR LE MIERE: Yes.
McHUGH J: There may be nothing in it, I just - - -
MR LE MIERE: Well, certainly we have not taken that point at any stage until now and, I think, would not be permitted - - -
KIRBY J: It is about the only point you have not taken up until now.
MR LE MIERE: Well, it would be too late, in any event, now, your Honour. But certainly - - -
McHUGH J: Your case throws up a point of law without any merits. You do not seem to have much merit. You were aware of this some time between 15 and 19 May. Arguably, you were served at that stage but, for present purposes, that is too late.
MR LE MIERE: Your Honour, the chronology of the matter - yes, indeed, as your Honour says, some time between the 15th and the 19th the respondent became aware of that.
McHUGH J: Not only became aware of it, he was actually given a copy of the document.
MR LE MIERE: Yes, and what can be seen on 13 October, the respondent sent a letter to the appellant saying that he was ready, willing - - -
McHUGH J: 13 September, I think.
MR LE MIERE: I am sorry, your Honour?
McHUGH J: 13 September.
MR LE MIERE: No, your Honour, 13 October.
McHUGH J: There was a letter of 13 September.
MR LE MIERE: There was a letter, yes. But on 13 October, the respondent sent a letter to the appellant saying that he was ready, willing and able to complete. So that, what the respondent did was precisely, in our submission, what section 6 of the Sale of Land Act envisages and intends. If one takes, for example, the position that some time between 15 and 19 September he was aware of the vendor's wish to, or intention to take action, the respondent then put himself in a position to be able to remedy the default, and was in a position to do that by 13 October and, on 13 October, informed the appellant that he was ready, willing and able to complete. So that, in my submission, illustrates the very - precisely what the legislature intended should happen; that he had that period of grace, that he took advantage of it, and was ready to complete on 13 October.
KIRBY J: And that is within the 28 days of actual notice?
MR LE MIERE: Yes, your Honour. And, indeed, whilst it is hard to see that it would be relevant in the final outcome of the matter, I should make some reference to - one of your Honours, this morning, referred to the delay of the respondent in collecting the notice, that is the one sent by certified mail. What happened was that the notice was sent back to the post office at Mosman Park. It was not until mid-September that the respondent was informed that there was at the Mosman Post Office an item of mail to be collected. He then telephoned the Mosman Post Office and asked that that item be taken to the City Post Office, at which he collected his business mail, as he set out in his affidavit in the papers, that is, because he was not able to go to the Mosman Park Post Office during business hours.
It was not until 29 September that he was informed then that the item had been received at the City Post Office, and he collected that on the first business day following which was 3 October. So, the reasons for the delay were primarily the workings of the post office rather than the collection by the respondent.
KIRBY J: Well, I think you can blame Australia Post, but the heart rending tale you have just told us does not overcome the fact that you are the one who nominated the Mosman Park address as the address for service in the contract, and you never bothered to correct that, nominate another address.
MR LE MIERE: Yes, we accept that was the finding of the trial judge, your Honour
KIRBY J: It on the face of the document, the address you put in the document.
MR LE MIERE: Indeed. The point that I would come to, your Honours, is that the effect of the appellant's argument is that the parties, by contract, are able to provide that receipt by - or the document coming to the notice of the purchaser less than 28 days before purported determination, or, indeed, not at all, may be a valid effective notice under section 6. That is, the appellant's argument involves the proposition that by contract the parties can make a stipulation to the contrary of what is set out in section 6.
KIRBY J: That may horrify you, but in terms of policy, if it be a construction that is open, it does (a) underline the need in Western Australia for parties to keep up to date the address for service they have nominated, and (b) it introduces a high degree of certainty. You give the notice to that address, that is it, time is running. If you have not changed your notification, that is your look out. Everybody knows where they stand; it is very clear.
MR LE MIERE: Two matters, your Honour. First of all, it overlooks - and, indeed, in my submission, the fatal problem for the appellant, if there were not others, is the opening words of section 6 which provides, "Notwithstanding any stipulation to the contrary -" So the legislature has expressly stated that the parties cannot set up some other regime. The parties cannot, whether it be because they perceive it to be in the interests of certainty or because of some other policy or convenience which one or both the parties may wish to enshrine in the contract, the Act does not permit them to set up their own service regime which is outside - contrary to that provided in the section.
KIRBY J: The argument in answer to that is that this is not contrary, this is simply a means of effecting it by nominating the place of service.
MR LE MIERE: That then requires the provisions of section 6 requiring that the document be served on the purchaser and that the purchaser has not remedied the default within 28 days, but all of that may take place without the purchaser in fact having received or even knowing of the notice. So perhaps it is to do little more than, in effect, come to what your Honour Justice Kirby puts to me in a different way.
KIRBY J: Only if the purchaser does not keep up to date with his notice of address. I mean, it seems more consistent with what Justice Hope said in that case, with what the Court of Appeal said in a case I sat in, in Morris, with what this Court said in the 154 CLR and what the Victorian court have said, in this business of land transfer there is a great premium on certainty; no one is left in doubt.
MR LE MIERE: I think the cases which your Honour is primarily referring to are ones dealing with provisions for service under a contract and where it is the contractual arrangements that have been made by the parties. Certainly I think one of the cases your Honour might be referring to that your Honour sat in was Dunsford v Shaddick and the earlier decision of Justice Hope in Miller. My case is concerned with meeting the conditions of contract and it is one thing for the parties having set up contractual arrangements for the parties to be able to set up their own regime for deeming service to take place in some way which is a fictional service. But, in our submission, it is a different matter entirely to come along to a particular statutory provision and then say that the parties may, by agreement, put in place a regime which has the effect of changing the arrangement put by the statute.
In particular, of course, section 6 of the Sale of Land Act was enacted in a context where it was intended to provide a protection for purchasers against contractual provisions. Indeed, there is a reference in the Law Reform Committee report, to the fact that the parties may have agreed on terms, and they often do, in case of the purchaser, either with little regard to the terms or having been drafted by a vendor, and that what is intended by section 6 is to provide a protection to the purchaser, over and above, in addition to anything which is provided in the contract. It would be entirely, in our submission, contrary to the purpose of section 6 if the content of that protection for the purchaser, in effect, the right conferred upon the purchaser, could be diminished by the terms of the contract itself. In our submission, that would be to enable section 6 to be altered by a stipulation to the contrary; contrary to the opening words of section 6.
The only other matter which I wish to address the Court on was the submission by my learned friend which was put as being the fall-back position, that in the event that the Court was otherwise to dismiss the appeal, then it ought to be remitted to the court below or back to the trial judge, perhaps. In relation to that, we say these things: that the matter was raised before the trial judge in the way in which my learned friend said. The trial judge did, at page 71 in the appeal book, refer to the necessity for evidence to be taken in relation to some other matters, had the trial judge come to a different decision to that which he came to, but they are not the matters which are raised by the appellant today. At page 71 in the appeal book at about line 20, or starting at 15, his Honour said:
This conclusion makes it unnecessary for me to rule on the specific objections which the defendant -
now respondent -
submitted would have invalidated the Default Notice had SLA applied. I can say briefly that the question whether the notice was sent to "the last known address" of the defendant, as required by s75(1), is a different issue from the "address for service" problem raised under clause 21(1)(b) of the General Conditions. It may have ended in a different result but there are subjective elements to the dispute that may well have necessitated the taking of oral evidence. In my opinion the second issue, namely whether the Default Notice was defective because it required compliance "within 28 days", has no merit.
Then at the bottom his Honour, four lines from the bottom of that paragraph:
This is what the Default Notice required and I can see no meaningful challenge to its validity on that basis. On the other hand, there was no evidence as to what constitutes the "ordinary course of post" for the purposes of s75(1). That would be a matter of evidence.
So the two matters his Honour was referring to was the last known address or the address for service of the now respondent and, secondly, what is the "ordinary course of post". His Honour there did not refer to evidence being required as to delivery. Secondly, we say that the now appellant did not seek to raise those matters before the Full Court on appeal to the Full Court and, finally, or in the chain of it, the Full Court decided the very question which we take now to be argued against, commencing at page 87 in the appeal book, where his Honour Justice Kennedy at about line 16 of page 87 said:
It follows that, in my opinion, the ultimate question in this case is whether service of the notice is deemed by s75(1) of the Interpretation Act to have been effected at the time when the letter would have been delivered in the ordinary course of post or whether the contrary has been proved. I consider the latter to be the case.
His Honour then referred to Fancourt v Mercantile Credits and the meaning of - - -
KIRBY J: What is the contrary to be the case? Is that that the contrary has been proved?
MR LE MIERE: Yes, your Honour. His Honour shows that at the top of page 89 where he says:
In the present case, in my view, the only inference which can be drawn from the evidence before us is that the notice of default was not delivered prior to the time when it was collected by the appellant from the Post Office in Pier Street, Perth. It was never delivered to the premises at 16 Beagle Street, Mosman Park. The respondent is therefore unable to rely upon the deeming provision in s75(1).....that service was effected when the notice would have been delivered in the ordinary course of post.
So those matters, having been expressly determined by the Full Court, were not the subject - are not raised in the appeal to this Court, and we say that really is the end of the matter.
Furthermore, we say, in any event, the argument which we apprehend is sought to be made, is simply not arguable. We understand that what is sought to be argued is that delivery under section 75(1) is complied with by a representative of Australia Post calling at the address and there leaving a card to the effect that an item of mail is awaiting the addressee at the post office. Now, we submit that it is simply unarguable to argue that that can constitute delivery of the notice of default. May it please the Court, those are my submissions.
GAUDRON J: Thank you, Mr le Miere.
MR GARRATT: Some short points, your Honour.
GAUDRON J: Thank you.
MR GARRATT: The respondent accepts that, prima facie, the meaning of "service" in section 6 is not confined to "personal service". That necessarily means that there is contemplated by Parliament other modes of service all of which necessarily entail a selection of an artificial criterion as the equivalent of service.
HAYNE J: What do you mean by that?
MR GARRATT: An artificial criterion, being a criterion other than actual receipt.
McHUGH J: Your opponent never conceded that proposition.
MR GARRATT: No, I did not say he conceded that. What he conceded was that the meaning of "service" in section 6 is, prima facie, not confined to personal service. My point is every mode of service which is not personal service carries with it the identification of some criterion, be it leaving, posting, faxing or the like, as the circumstance fixed upon as the equivalent of service. One sees that in section 76, for example. It must follow as a matter of analysis, in our submission. That is, after all, only all what the parties have attempted to achieve by their contract here. Identification of a means other than personal service apt to come to the attention of the other side.
McHUGH J: But you see it seems to me, to use a term you used in respect of a proposition that I put to you, the fallacy in your argument is that you keep using the word "apt" and "apt" - you cannot get that out of the word "service". "Service" is service, except where the legislature extends it as it does in section 76 or 75.
MR GARRATT: In effect, your Honour is saying "service" means actual service in its ordinary conception. There is no wider conception of service other than personal receipt.
McHUGH J: Yes, that is the ordinary meaning of "service". It either is a question of delivery or, in some statutory context, it may include a person receiving notice of it, as in some of the bankruptcy cases on service. But you can go through the cases and, as far as I am aware, there are none which hold that "deemed service" is service within the ordinary and natural meaning of that term.
MR GARRATT: The nub question of the appeal, your Honour, is when Parliament used "served" and requires service or notice - refers to a notice being served in section 6 - whether it is actually requiring actual service, or is contemplating a wider conception of service; in other words, the employment of means other than actual service, in our submission, to bring a document to the attention of the purchaser. I do not want to go through it again but I was simply teasing out, as I saw it, the implication of what is common ground; that "service", in section 6, is not confined, conceptually, to personal service, but it countenances the employment of means directed to achieving delivery of the document which, as I was advancing, necessarily carries with it the identification of some other circumstance as the equivalent of actual receipt.
McHUGH J: It is one thing to say that by reason of the existence of the then section 31 the legislature recognised that service - that situations could arise where a contract could be terminated, although the purchaser had not received the notice. But it does not follow that, in enacting section 6, the legislature accepted that the parties could agree that the purchaser should be deemed to be served by means of communication, or attempted communication, falling outside sections 75 and 76. That is what you have got to argue for.
MR GARRATT: Your Honour is correct, and we do argue that prima facie the conception of "service" in section 6 is not personal service, is not confined to it, that section 76 is not to be construed as definitive and exhaustive of the means which parties may employ towards the service of documents.
HAYNE J: Thus the parties could stipulate for service by publication once of an advertisement in a newspaper circulating in the area?
MR GARRATT: There will always be definitional limits to what falls within ordinary concepts, but conceivably yes. If they both live in a small town, for example, that may be a very effective means of achieving service for someone who is evading service, for example.
HAYNE J: Or stipulate for service by posting the document on the land?
MR GARRATT: If in the circumstances that were a means apt to bring it to the attention of the other party, yes.
HAYNE J: What is the criterion then that you implicitly say must be applied?
MR GARRATT: The criterion must be that it can be seen that the parties have bona fide directed themselves towards means of bringing the document to the attention of the defaulting party.
McHUGH J: Could I just put this to you: for much of this argument - in fact, all of it - I have seen this case as concerned with issues of "serve", but the question that Justice Hayne asked your opponent earlier suggests to my mind that perhaps the real question in the case in this appeal is whether, consistently with section 6, that 28-day period can commence to run when, pursuant to a contractual provision, the parties deem it to run. Perhaps that is what the real issue is.
MR GARRATT: Certainly in so far as Parliament has weighed in section 76, the answer of Parliament is clear, yes.
MR HAYNE: Therefore you say the parties could stipulate that if served by post it shall be deemed to be received the next business day after and as we may be taken to know, that is not necessarily the ordinary course of post.
MR GARRATT: Well as I say, your Honour, these are matters of judgment. One needs to be able to say of the contractual means that it is bona fide adapted to service and if that is so, then that should suffice. The parties should be able to achieve certainty for themselves. My learned friend accepts the decisions of the Court which say that parties in conveyancing contracts ought to be able to achieve certainty for themselves. Why less so, in conveyancing statutes, should Parliament not have the same goal?
McHUGH J: Because, as Justice Gaudron said, it has attempted to strike a balance between the rights of vendors, rights of the purchaser. It is done so against the background of the then section 31 of the Interpretation Act and it has used the word "served". It is recognised that there may be situations where you can utilise section 31, in fact authorises you to do that, but that is the beginning and end of it.
MR GARRATT: A couple of points, finally, to be made about that. Section 6 does not say that the purchaser fails to comply with a notice; it says the purchaser fails to remedy the default. You can remedy the default without receiving the notice. Section 6 is casting the form of an obligation on a vendor to give notice, not in the form of a right on the part of the purchaser to have had 28 days notice before the vendor may terminate the contract.
Those are both matters which militate against a rigid construction which says it is the clear intention of Parliament that you will have had 28 days notice before the vendor can take the next step. That would be weighed in the balance of construing section 6 as to what is intended;. whether Parliaments intends, as we say, to cut down the freedom of the parties to agree upon a service regime in a matter in which it certainly is important. Lastly - - -
HAYNE J: Does the fact that the section is cast in terms of a prohibition affect the view one should form of it? It was cast in terms of, in effect, "Thou shalt not terminate unless". Notwithstanding any stipulation to the contrary, "Thou shalt not terminate unless".
MR GARRATT: Plainly, in my submission, the document is not a prohibition. There is no penalty imposed on a vendor who serves a notice which happens to be ineffective. It is simply - my learned friend says an invalidatory provision. I do not think it really goes quite that far, it is an inhibitory provision. You can do whatever you like. You are not going to commit a penalty by doing it but it will not be effective as an Act in the law if the notice does not comply with the provisions of section 6.
There are two remaining points by way of reply material. Justice McHugh raised the question of section 31(3) of the Interpretation Act (WA) . I must say, having looked at it over lunch, it is our submission that, twofold, there is no linguistic difference of substance between section 31(3) of the 1918 Act and the Queensland provision in Fancourt or, in our view, between the 1918 Act and the 1984 Western Australian Act. That carries with it all the flavour of assertion, which it is.
McHUGH J: You say that even under 31(3), the "unless" clause is to be read as qualifying delivery and not service.
MR GARRATT: Yes, we say that is the natural reading of it. It is just one of those arguments, your Honour, which one states and the here or either agrees or disagrees, ultimately, with it as a matter of grammar.
The last point relates to this question of whether any other steps should be taken in the event that factual questions in relation to section 75(1) become ultimately determinative. The point is reserved at the end of the judgment of Justice Owen.
KIRBY J: It does not look as though you did. His Honour does not refer to that.
MR GARRATT: There is another passage in his judgment to which I would refer and it is this. It is on page 51 in the middle, line 25. His Honour states the legal principles upon which his Honour is proceeding. What is apparent, in our submission, is that his Honour is approaching the matter essentially as an interlocutory question, not as a final question.
GAUDRON J: Well, there is a convenient difference in some cases, but is there any substantial difference between the two in this case? The caveat goes.
MR GARRATT: Only to this extent. I am not suggesting more than this, that his Honour was prepared to deal with the matter on the material which he had had and on which he had already received submissions up to 15 April, but when he came to write his reasons he was accepting that if that documentary material left open further questions upon which some oral evidence would be needed to have a final resolution of all points, he was leaving it open.
McHUGH J: Well, that is different to what you said on the special leave application, is it not, because Justice Kirby raised with you at page 4 of the transcript that this was an interlocutory decision and you said:
It is not an interlocutory decision, if I may address that point first, your Honour. This was an originating summons on agreed facts, a short point of construction as to whether a contract had been terminated. It was a final decision.
KIRBY J: Effectively final.
MR GARRATT: Effectively final and resolves the matter once and for all.
MR GARRATT: And, indeed, your Honour, that was my state of understanding of what had happened procedurally until two days ago. I was not at trial or in the appeal. I have been perplexed, if I may say, by the form of the procedure to this extent, that one had an originating summons which ordinarily comes to a final hearing, but at the end of the reasons given in the judgment plainly there is left open a reopening of the proceeding or continuation of the proceedings. I made the submission that I did on the special leave application, working off the papers as I understood them to be, the final hearing of an originating summons. If the Court please.
GAUDRON J: Yes, thank you, Mr Garratt. The Court will consider its decision in this matter.
AT 3.07 PM THE MATTER WAS ADJOURNED
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