VIC Serving Fencing Notice

[MariaPan]

I sent the Fencing Notice to my neighbour via registered post. Looking at the Australia Post tracking, I can see that delivery was unsuccessful and the letter was sent back to the local post office awaiting collection from the neighbour. It's been almost 2 weeks now and neighbour still hasn't collected the letter. I had previously communicated with my neighbour about getting fence quotes as half the fence had fallen over from strong winds and even then she was quite evasive.

What can I now do? I was willing to wait 30 days before taking it further at the Magistrates Court, but if she refuses receipt of the letter with the Fencing Notice, I can't proceed to file Form 5A? I read on the court's website that I could do an affidavit that I "served" the form 5A but if she's so evasive already, how can it be served to her?

 

[Rod]

Did you select the wrong option when sending via registered post?

Do not select delivery confirmation or person to person. You only need to show delivery.

Redo your dates and resend.

 

[MariaPan]

Thanks Rod for replying.
I did not tick "delivery confirmation" or " person to person."
But online tracking says the neighbour has yet to collect letter from local post office as she wasn't home initially.
Is the fact I sent registered post, even if neighbour never collected from post office, enough for me to say I sent Fencing Notice and the date of registered post was the start of the 30 days countdown?

 

[Rod]

Most likely yes. I letter will be deemed to have been delivered if you can show postage. There is no law saying a person must check their letterbox.

 

[Atticus]

Is the fact I sent registered post, even if neighbour never collected from post office, enough for me to say I sent Fencing Notice and the date of registered post was the start of the 30 days countdown?

Taking into account the two sections below from the relevant acts, I'd say so.
She would also have been left a note to say she has registered post to collect

37 Giving notices under this Act
(1) A notice under this Act may be given to a person
by delivering it personally to the person or by
post.
Notes
1 Section 49(1) of the Interpretation of Legislation
Act 1984 sets out when service of a document by
post is effected.
SOURCE >> https://content.legislation.vic.gov.au/sites/default/files/2021-03/68-7733aa072 authorised.pdf

49 Service by post
(1) Where an Act or subordinate instrument
authorizes or requires a document to be served by
post (whether the expression "serve" or the
expression "give", "send" or "deliver" or any other
expression is used), the service shall—
(a) unless the contrary intention appears, be
deemed to be effected by properly
addressing, prepaying and posting the
document as a letter to the person on whom
it is to be served; and

(b) unless the contrary is proved, be deemed to
have been effected at the time at which the
letter would be delivered in the ordinary
course of post

SOURCE >> https://content.legislation.vic.gov.au/sites/default/files/2023-09/84-10096aa131-authorised.pdf

 

[MariaPan]

Most likely yes. I letter will be deemed to have been delivered if you can show postage. There is no law saying a person must check their letterbox.

Thanks so much!

 

[MariaPan]

Taking into account the two sections below from the relevant acts, I'd say so.
She would also have been left a note to say she has registered post to collect

37 Giving notices under this Act
(1) A notice under this Act may be given to a person
by delivering it personally to the person or by
post.
Notes
1 Section 49(1) of the Interpretation of Legislation
Act 1984 sets out when service of a document by
post is effected.
SOURCE >> https://content.legislation.vic.gov.au/sites/default/files/2021-03/68-7733aa072 authorised.pdf

49 Service by post
(1) Where an Act or subordinate instrument
authorizes or requires a document to be served by
post (whether the expression "serve" or the
expression "give", "send" or "deliver" or any other
expression is used), the service shall—
(a) unless the contrary intention appears, be
deemed to be effected by properly
addressing, prepaying and posting the
document as a letter to the person on whom
it is to be served; and

(b) unless the contrary is proved, be deemed to
have been effected at the time at which the
letter would be delivered in the ordinary
course of post

SOURCE >> https://content.legislation.vic.gov.au/sites/default/files/2023-09/84-10096aa131-authorised.pdf

It is really reassuring information