DI NATALE & ANOR v. KELLY (AN OFFICER OF THE RSPCA, NSW) [2006] NSWCCA 201

DI NATALE & ANOR v. KELLY (AN OFFICER OF THE RSPCA, NSW) [2006] NSWCCA 201 - NSWCCA 2005 case summary — Zoe

[24]

12 At the time these proceedings were instituted, s.63 of the Justices Act 1902 provided in part:- "63 Manner of service of summons (1) Subject to this section every summons shall be served by a member of the police force or other person upon the person to whom it is directed by delivering it to him personally or, if he cannot conveniently be met with, by leaving it with some person for him at his last or most usual place of abode. (2) Subject to this section a summons in respect of an information for an offence punishable summarily before a Justice or Justices laid by a member of the police force or a public officer may be served by posting it not less than twenty-eight days before the return day by prepaid letter post addressed to the person to whom it is directed- (a) where that person is a natural person, at his last known place of residence or business; (b) where that person is a body corporate, at a place where it trades or carries on business; or (c) in either case referred to in paragraphs (a) and (b):- (i) where there is a prescribed address for the person; and (ii) where there is no circumstances making it appear to a court that the prescribed address for that person is not the address referred to in paragraph (a) or, as the case may require, paragraph (b) in relation to that person, at the prescribed address for that person. … (5) The Justice or Justices at the hearing or adjourned hearing of an information in respect of which a summons has been issued may, notwithstanding service of the summons in the manner provided by subsection (2), order that a further summons in respect of the same offence be served in the manner provided by subsection (1), and may adjourn or further adjourn the hearing to enable that summons to be served in accordance with that order." 13 The questions of law for determination posed in the case stated were in the following terms:- "5. QUESTION OF LAW FOR DETERMINATION The question of law for determination is: (a) Did I err in law in holding that compliance with s.63(2) of the Justices Act 1902 was:- (i) not mandatory; and/or (ii) a condition precedent to the matter proceeding further?" 14 It is noted that the word "not" before the word "mandatory" should appear before sub-paragraph (i)

[32]

When and in relation to what proceedings ought objection to have been made? 25 On the hearing before Sorby, DCJ., Mr. Vasic argued that, having regard to the nature of the appeal, objection taken at an early point in time in the District Court proceedings was sufficient to preserve the appellants' rights to argue that the service of the summonses contravened what he contended were mandatory requirements as specified in s.63(2) of the Justices Act. On 2 May 2005, the transcript records Mr. Vasic's submission:- "… just one last point which does cover all three arguments that I am raising, and that is that your Honour in an all ground appeal sits as the magistrate. Your Honour is viewed with all the powers of the magistrate. So in my respectful submission it would be inaccurate for your Honour to examine what occurred before the magistrate and say, 'well, in effect, no objection was taken then and there'. Your Honour is in effect sitting as the magistrate." 26 Whether or not counsel for the appellants elected to argue the matter on this basis by reason of the possibility that an argument may be available and advanced by the Prosecutor that his clients may have waived their right to object to service of the summonses when the proceedings were in the Local Court, is not a question that requires examination. I consider, instead, that a primary point that arises in the current appeals is whether or not the submission of counsel set out in paragraph [25] above was correct as a matter of law. I am of the opinion, in that respect, that the submission was not correct. The answer to the question turns upon the nature of the appeals to the District Court. I will, accordingly, turn to deal with that aspect of the matter. 27 In Camilleri's Stock Feeds Pty. Limited (1993) 32 NSWLR 683, Kirby, P. (as he then was) restated the principles concerning the recognised categories of appellate jurisdiction and in doing so cited the well-known passage in Turnbull v. New South Wales Medical Board (1976) 2 NSWLR 281 at 297-298. Glass, JA. in that case included within the relevant categories of appeal:-

[34]

• (f) Appeals involving a hearing de novo , eg., appeals from a Court of Petty Sessions to a Court of Quarter Sessions, (the equivalent now of the Local Court and the District Court). 28 The appeal provisions in Camilleri were those in s.5AA(3) of the Criminal Appeal Act 1912 which are in similar terms to s.18(1) of the Crimes (Local Courts Appeal and Review) Act 2001. Section 5AA(3) provided:- "Any such appeal shall be by way of re-hearing on the evidence , if any, given in the proceedings before the (Land and Environment Court) in its summary jurisdiction and on any evidence in addition to or in substitution for the evidence so given. (emphasis added) 29 Kirby, P. observed that, having regard to the emphasised words in s.5AA(3), it was clear that the "re-hearing" proceeded, by virtue of the terms of the sub-section, upon the basis of the evidence before the Land and Environment Court. 30 Kirby, P. (with whom Campbell and James, JJ. agreed) stated that the context of the particular wording of s.5AA(3) does not lend itself to an interpretation favouring the conferral of jurisdiction of an original nature, such as a hearing de novo generally requires. As the learned former President there observed, in a de novo appeal, the matter is entirely re-litigated and determined on completely new evidence. 31 Section 18(1) does not contain the additional phrase in s.5AA(3) "and on any evidence in addition to or in substitution for the evidence so given". However, that is of no consequence to the present case. Kirby, P. held that even that phrase did not qualify the meaning to be given to the provisions of s.5AA(3). The words in s.18(1) which do not contain the latter phrase, in my opinion, plainly and similarly indicate that the hearing of an appeal by the District Court pursuant to that section is a re-hearing and not a hearing de novo. The provisions of s.18(2) which provide that fresh evidence may only be given by leave of the District Court confirms that construction. 32 It follows, accordingly, that the hearing before Sorby, DCJ. involved a re-hearing and not a de novo appeal. Accordingly the District Court in this matter did not have conferred upon it nor did it exercise in these matters jurisdiction of an original nature. 33 That conclusion as to the nature of the appeal, accordingly, means that the District Court on appeal was required to examine the way in which the proceedings were conducted before the Local Court and whether or not the appellants at that level and before any conviction was entered, waived their right to object to the Local Court's jurisdiction on the basis that the summonses in question were not served within the time specified in s.63(2). It will, accordingly, be necessary to return to this issue later in this judgment (paragraphs [58] to [74]).

[47]

(a) Ex parte Gobbert; re Wilkes v. Anor (1941) 58 WN(NSW) 113 - Service of a valid summons was a condition precedent to jurisdiction :- 44 In Ex parte Gobbert; re Wilkes & Anor, an application was made to make absolute two rules nisi for statutory prohibitions in respect of two convictions upon charges under s.3 of the Secret Commissions Prohibition Act 1919, that the applicant Gobbert corruptly gave to one McCarthy, agent for C.H. Slade & Co., two sums of money. 45 Objection was taken to the jurisdiction of the magistrate to proceed in the absence of what was said to be a proper summons. The summons had originally been issued. It was not served within the time contemplated and from time to time the informant obtained altered dates for appearance. On each occasion, the informant handed the summons to an officer of the Central Police Office who altered the date. The Justices Act required that when an information is laid before a Justice against any person, such Justice may issue his summons for the appearance of such person and that every summons shall be under the hand and seal of the Justice issuing it. 46 It was held in that case that the specified procedure as to the issue of summons was a condition precedent. Jordan, CJ. stated at 114:- "Where the procedure is by summons, it is a condition precedent to the possession of jurisdiction by a Magistrate that the defendant should be duly served with a valid summons, or, if he has not been so served, that he should appear to the charge without objecting to the absence of a summons: Dixon v. Wells …" In the present case, objection was raised; and the question therefore is whether on 26 February 1941, there was any summons in existence requiring the defendant to appear on that day." 47 Jordan, CJ. held that, on the evidence, the summonses served on the defendant were not summonses issued by the magistrate at all "… but (were) summonses from some other officer at the Central Police Office who used for the purpose the pieces of paper which had previously been used by (the magistrate) for his then long defunct summonses" (at p.114) 48 Accordingly, in that case, the "purported summons", as it was described, was invalid. That is a different circumstance from the present case. There is no attack on the validity of the information or summons but rather as to the validity of service of the summons, having regard to the non-compliance with the requirements as to service of a summons by post.

[48]

(b) Nitz v. Evans (1993) 19 MVR 55 - Mandatory requirement to serve a true copy of a summons not complied with - document served not a true copy of the summons - no waiver by defendant 49 The appellants relied upon the decision in Nitz v. Evans, a decision of the Victorian Supreme Court (Hayne, J.). A close reading of the judgment in that case reveals that the circumstances were not unlike those considered by Jordan, CJ. in Ex parte Gobbert. 50 A charge was filed with the Registrar of the Magistrates' Court at Heidelberg. The Registrar signed or stamped with a facsimile signature stamp and printed his title on one or more copies of the document against the printed words on the form "issued by (signature) …". A copy of the document was served on Nitz, but the copy served did not indicate that it had been signed by the Registrar and did not indicate that the Registrar's title had been noted on the document. 51 When the matter came before the Magistrates' Court at Heidelberg for mention, counsel announced an appearance under protest on behalf of Nitz contending that the summons had not been served properly. The relevant provision, s.34(1), provided that every summons to answer a charge, except where otherwise expressly enacted "(a) must be served at least 14 days before the mention date; and (b) must be served on the defendant by (i) delivering a true copy of the summons to the defendant personally …". 52 The question in the case was whether, given that what was served on the defendant was not a true copy of the summons that had been issued, the learned magistrate was entitled to proceed to hear and determine the charge. 53 Hayne, J. observed that, when s.34 required the service of a true copy of the summons, it required service of a true copy of the summons that had been issued:- "… it follows in my opinion, that s.34 requires the service of a copy which will show to the defendant that fact of issue. Thus, it requires service of a copy which will show that it has been signed by the issuing authority and what was signed in this case did not." 54 Hayne, J. held that the document served on the defendant was not a summons in accordance with the Act. Further, the appellant at no time waived the defect in service of which he complained. He stated:- "The Act requires that every summons be served and be served in one of two ways … This summons was not served in accordance with the Act. The defendant did not waive the defect. That being so, it follows that the learned Magistrate should not have gone on to hear and determine the charge until the defendant had been properly served as the Act required." 55 It is clear that the central matter at issue in that case was the fact that the defendant had not been served as required by the Act ("must be served on the defendant by … delivering a true copy …) with a copy of the summons as required by statute. In other words, it was not merely a case of irregularity in the manner of service, but rather there had been no compliance with the statutory requirement that a true copy be served in accordance with the legislation.

[66]

I will not have a legal representative at the court hearing." 60 On 3 June 2003, the appellants lodged what is termed a "written notice of pleading". In relation to the form of notice, s.75 of the Justices Act 1902 provided, so far as is relevant, as follows:- "75 Written pleas (1) A defendant who is issued a summons or an attendance notice may lodge with the clerk of a Local Court a notice in writing that the defendant will plead guilty or not guilty to the offence or offences the subject of the information concerned. (2) The notice is to be in the prescribed form and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence. …" 61 The Justices (General) Regulation 2000 prescribed the form to which s.75(2) refers and as set out in paragraph [59]. It will be seen that Form 2 in the Regulation prescribes the form which is divided into three parts, Part 1 entitled "Details about your court case", Part 2 entitled "Pleading not guilty" and Part 3 entitled "Pleading guilty". 62 In determining whether the notices lodged by the appellants constituted a waiver by each of them, it is necessary to refer to the concepts inherent in the doctrine of waiver as they apply in relation to these appeals. 63 In general terms, a right is waived only when the time comes for its exercise. If a party at such point knowingly abstains from exercising it, then a waiver may arise. The question then is whether the content and timing of the two written notices of pleading could be said to constitute or give rise to a waiver by the appellants as to the necessity for compliance with the requirements as to service. 64 On one view, there was no necessity for the appellants to declare their hand on the validity of service until the proceedings were actually listed for hearing before the Local Court. Until then it may be said, with some justification, that there could not have been an abandonment of the irregularity of service point. Waiver involves the concept of the abandonment of a right at an expectant time in the sense that, if a point is to be taken, there is not only an opportune time to do it but there is an appropriate time to do so. Hence, in Commonwealth of Australia v. Verwayen (1990) 170 CLR 394, Dawson, J. spoke of waiver as arising where a party has "failed to insist upon his right at an appropriate time" (p.457). 65 The question may be recast in the following terms: should the appellants, by their conduct in completing and lodging their notices which conveyed their intention to plead not guilty to the charges against them, be thereby found to have been precluded from subsequently raising the validity of service point? Had they, by such conduct, lost or renounced their respective right to do so? 66 In Sargent v. ASL Developments Pty. Limited (1974) 131 CLR 634 at 655, Mason, J. stated that any discussion of the principles governing the circumstances in which a party's words or conduct may preclude him or her from exercising a legal right which he or she possesses is beset with difficulties. In the context of the present case, the issue is, in my opinion, to be resolved by deciding whether the two notices of pleading constituted a renouncement by the appellants of their right to take advantage of the procedural irregularity in the service of the summonses. For that to have occurred as a matter of law their conduct had to be deliberate. Otherwise, an inference of waiver could not be inferred from their conduct: Verwayen (supra) per Toohey, J. at 473. 67 The prescribed form of written notices of pleading are intended to serve a particular purpose, namely, that of providing notice of intention of entering either a plea of guilty or a plea of not guilty. The prescribed form also operates as an acknowledgement or an agreement that the person signing the form is the defendant named in the summons or attendance notice served on that person. In doing so, the notice thereby acknowledges the physical fact of service of the summons or attendance notice. 68 The introductory paragraph to the written prescribed notice of pleading provides advice that legal advice be obtained before the person to whom it relates completes the form, such legal advice, the form records "is important because you need to know if you can use the form and, if so, what effect it has". 69 In oral submissions, Mr. Vasic relied upon the fact that there was no physical appearance/attendance by the appellants before the Local Court. He contended that the first opportunity they had to object to service was at the hearing before the District Court when an objection was made as recorded earlier in this judgment. 70 As the history of the matter reveals, the hearing on 26 September 2003 at Picton Local Court proceeded ex parte. That came about in circumstances explained by the appellants' counsel when addressing Sorby, DCJ. on 2 May 2005 (transcript p.16), namely, the fact that the notice of listing has been sent to the wrong address. Counsel for the Prosecutor did not dispute that fact. I note (at transcript p.23) him stating:- "… They respond to it by return notice of pleading. That caused the court to adjourn proceedings for a defended hearing, that is, relying on the notice of pleading and it was at that defended hearing that the two appellants failed to appear, and I hear my friend say that there was a problem with notice as to that date and I accept what he says …" 71 On this basis, two irregularities in fact occurred at the Local Court level. The first is the irregular service of the summons. The second (which is not a ground of appeal, but is a related fact) is the failure of the appellants to appear at Picton Court not through their own fault or neglect, but by reason of the notice of listing apparently being sent to the wrong address. 72 There was no provision made in the prescribed form of notice of pleading for notice to be given of any question concerning the validity of proceedings (whether of the information, summons or service of the summons). Equally, there is no prescribed form for entering a conditional appearance as a step to contesting the validity of proceedings. 73 In a Local Court, once proceedings are listed for hearing, typically counsel who seeks to challenge the validity of process, will, at the outset of the hearing, do so by making protest or objection to the validity of the information, summons or service: see, for example, Dixon v. Wells (1890) 25 QBD 249 and Nitz v. Evans (supra). The opportunity for the appellants appearing by counsel at the Local Court at Picton and protesting to the validity of service in the present cases never occurred because the notice of listing was apparently sent to the wrong address. Convictions were accordingly entered against them in their absence. 74 I do not consider that the appellants waived their rights to dispute validity of service by lodging the prescribed notices. Those notices, in other words, did not, in my opinion, constitute an unconditional submission to jurisdiction by the appellants. The indication in the notices that the proceedings would be defended by entering not guilty pleas was not, in my view, inconsistent with their right at the commencement of the hearing to dispute validity of service. Certainly their notices of pleading could not, in my opinion, be considered as abandoning their right to do so. The notices were, as earlier indicated, principally intended as a means of providing advance warning as to whether the summonses would be contested or not. The notices could not, either by their express terms or by implication, constitute conduct of the appellants, from which any such waiver could be inferred. It follows that I am unable to accept as valid the Prosecutor's submission that the notices of pleadings constituted unconditional appearances by the appellants.

[67]

Determination 75 The prosecutor failed to comply with the statutory requirements as to time of service prescribed by s.63(2). Those provisions are not merely procedural in nature but were, in my opinion, prescribed as conditions precedent and upon which validity of service depends. 76 The words in s.63(2) "… may be served by posting" operate as prescribing an alternative mode of service to service as prescribed by s.63(1). The succeeding phrase "… by posting it not less than 28 days before the return date …" are, I consider, emphatic words as to the necessary minimum period for service by post before the return date of the summons. They are in that sense, mandatory, and in my view, in their context, are no less so that the provisions of s.34(1)(a)(ii) considered in Nitz (supra) and Platz (supra), namely "every summons … (a) must be served at least 14 days before the mention date …". 77 The intention and purpose of s.63(2) is to ensure the right of a person to whom a summons is addressed to respond to it within the time prescribed. In that sense, it provides an important procedural safeguard. 78 The question of determining the effect of non-compliance with a statutory requirement is not simply a question of categorisation in terms of the mandatory/directory dichotomy: B v. Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120 per Merkel, J. at 9. As there observed, it is a question of legislative intent to be discerned in the words of the relevant statutory provisions construed in the context of the statute as a whole: Australian Broadcasting Commission v. Redmore Pty. Limited (1989) 166 CLR 454 at 457 per Mason, CJ., Deane and Gaudron, JJ. See also Victoria v. Commonwealth & Connor (1995) 134 CLR 81 at 179 wherein the underlying principle is explained. 79 The legislative objective behind s.63(2) - to ensure due notice of proceedings and the provision of a proper opportunity to respond to a summons - is plainly one of primary importance. To construe the provisions of s.63(2) as mandatory in nature, as I do, clearly supports the attainment of the legislative objective: see generally the discussion of legislative purpose and related issues of statutory construction in Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355, especially at 389-391. 80 There is no provision whereby a court could vary the 28 day minimum period specified in s.63(2). The statutory provisions specify a time for service which the legislature prescribed as the minimum time required. Strict compliance with a requirement that is imperative or mandatory is a precondition to valid action: see Hunter Resources Limited v. Melville (1988) 164 CLR 234 at 241, 245, 248-249, 251, 267-257 and Hamilton v. Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 at 358-361. This, in my opinion, applies equally to validity of service pursuant to such a requirement: see Platz (supra) at [9]. 81 There was, for reasons stated above, no waiver by the appellants of their respective right to dispute validity of service of the summonses by lodging their notices of pleading. 82 The questions of law in the case stated should accordingly be answered:-

[74]

(f) The matters were listed for hearing at Picton Local Court on 26 September 2003. There was no appearance by the appellants who were convicted on all 8 counts. 89 The written Notice of Pleading in each case stated that the defendant was pleading not guilty to the offence. It also contained a statement that the summons was served on him. Each defendant asked the Court for a later hearing date. The Notice also stated that the identity of the solicitor or barrister representing the applicant at the hearing was to be advised. 90 When the matters came before the Bowral Local Court on 10 June 2003 they were adjourned to 11 August 2003. The prosecution brief of evidence was served by registered post by letter dated 27 July 2003. That letter and the brief contained no reference to any hearing date of the summonses. When the matters were subsequently mentioned before the Bowral Local Court on 11 August 2003 neither the defendants nor their legal representatives were present and the matter was mentioned by a solicitor on behalf of the prosecution for both parties. The defendants were not notified of the adjourned hearing date at Picton Local Court on 26 September 2003 and the former solicitors for the defendants did not receive the letter which the Court Registry posted notifying those solicitors of the hearing date. Put simply the defendants were not notified of the adjourned hearing date. They did not know when they were required to attend at Court. 91 What the facts reveal is that the summonses were not posted 28 days before the return day, but only about 15/16 days, that the appellants, about 4 June 2003, faxed to the Court a Written Notice of Pleading acknowledging that the summonses were served on them, never appeared before the Bowral Local Court, did not know that the matter was adjourned for hearing to Picton Local Court on 26 September 2003, and did not appear at the adjourned hearing. 92 Section 52 of the Justices Act 1902 (now repealed) provided that an information may be laid before a Justice in any case where any person has committed, or is suspected to have committed an offence or an act in New South Wales for which he is liable, upon summary conviction before a Justice to be punished by fine, imprisonment or otherwise. 93 Section 60 provides that whenever an information is laid before a Justice, he may issue his summons for the appearance of that person. Section 62 specifies the requirements for the summons. Section 63, which deals with the manner of service of the summons, relevantly provided at the material dates: "(1) Subject to this section every summons shall be served by a member of the police force or other person upon the person to whom it is directed by delivering it to him personally or, if he cannot conveniently be met with, by leaving it with some person for him at his last or most usual place of abode. (2) Subject to this section a summons in respect of an information for an offence punishable summarily before a Justice or Justices laid by a member of the police force or a public officer may be served by posting it not less than twenty-eight days before the return date by prepaid letter post addressed to the person to whom it is directed - (a) where that person is a natural person, at his last known place of residence or business; (b) … (c) in either case referred to in paragraphs (a) and (b) - (i) where there is a prescribed address for the person; and (ii) where there are no circumstances making it appear to a court that the prescribed address for that person is not the address referred to in paragraph (a) or, as the case may require, paragraph (b) in relation to that person, at the prescribed address for that person.

[80]

(c) the defendant being given adequate time to investigate the matter and prepare his defence. 97 If insufficient time has been allowed an adjournment is granted. 98 The legislation may make it a condition precedent to the Magistrate's jurisdiction to hear and dispose of the charge that the summons was posted 28 days before the return day: Dixon v Wells, 24 QBD 249 at 256-257. 99 In Ex Parte Gobbert (1941) 58 WN (NSW) 113 at 114, Jordan CJ with the agreement of Street and Roper JJ, said:- "Where the procedure is by summons it is a condition precedent to the possession of jurisdiction by a magistrate that the defendant should be duly served with a valid summons or if he has not been so served, that he should appear to the charge without objecting to the absence of a summons: Dixon v Wells ; Justices Act s 133." 100 In Exp Walker Re Goodfellow & Anor (1945) 62 WN (NSW), Jordan CJ, with the concurrence of Davidson and Halse Rogers JJ, said at 59-60: "The statement in Ex parte Gobbert that a valid summons is essential to jurisdiction is incorrect as a general proposition or as applicable to the Justices Act 1902 . It is correct only where as in Dixon v Wells some statute, according to its proper construction, prescribed a summons as a condition precedent." 101 Jordan CJ held that there was nothing in the language of the Justices Act which justifies a conclusion that the Act has the effect of making a valid summons or warrant a condition precedent to jurisdiction. Jordan CJ added: "Prima facie procedural provisions do not touch jurisdiction." 102 In Nitz v Evans (unreported, SC (Vic), 7 April 1993), Hayne J considered the provisions of the Magistrates' Court Act 1989 (Vic). Section 34 of that Act provided: "Every summons to answer a charge, except where otherwise expressly enacted (a) must be served at least 14 days before the mention date and (b) must be served on the defendant by (i) delivering a true copy of the summons to the defendant personally or (ii) leaving a true copy of the summons for the defendant at the defendant's last or most usual place of residence or business with a person who apparently resides or works there and who is apparently not less than 16 years of age." 103 The Magistrates' Court General Regulations 1990 Reg 302 provides that the Registrar issues the summons by signing or stamping it with a facsimile signature stamp. The copy summons served on Nitz did not indicate that it had not been signed by the Registrar and the Registrar's title had not been noted on the document. When the matter came on for mention counsel for Nitz announced an appearance under protest. That stance was renewed when the matter came on for hearing: 104 Hayne J said: "Much of the argument on the appeal was couched in terms of whether in the events that had happened the Court below had jurisdiction. In the end I doubt that it is useful to speak in terms of presence or absence of jurisdiction in the Court below: at least without going on to identify the sense in which the expression is used. (See Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369) As I have said, there is no doubt that a criminal proceeding had been validly commenced and a summons had been regularly issued. It may be, then, that analogies can be drawn between the charge and summons on the one hand and the information and process spoken of in R v Hughes (1879) 4 QBD 614) on the other. In that case Hawkins, J said (4 QBD at 625) that: 'The information, which is in the nature of an indictment, of necessity precedes the process; and it is only after the information is laid, that the question as to the particular form and nature of the process can properly arise. Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place (unless under statutory enactment).' The question at issue in the present matter is whether the defects in service were such as to preclude the Court from proceeding to hear and determine the charge. In my view it is not necessary to decide whether the difficulties about service go to the jurisdiction of the Court or go only to the question of whether a 'hearing in the nature of a trial could take place' (to adopt the words of Hawkins, J)". 105 Hayne J held that s 34 was cast in mandatory terms requiring the summons to be served by one of two prescribed methods: 106 Hayne J concluded: "This summons was not served in accordance with the Act. The defendant did not waive the defect. That being so, it follows that the learned magistrate should not have gone on to hear and determine the charge until the defendant had been properly served as the Act requires." 107 The approach of Hayne J in Nitz was followed by Warren J in Sinclair v Magistrates' Court of Victoria at Ringwood & Anor (unreported SC (Vic) 9 December 1998) and by Byrne J in Platz v Barmby (unreported, SC (Vic) 26 November 2002). 108 In the three Victorian decisions considerable weight was placed upon the words in s 34 of the Magistrates' Court Act that the summonses "must be served" and in Nitz the words "a true copy" were also emphasised. The Justices Act, 1902, is not cast in mandatory terms. 109 Under s 75 and 75A of the Justices Act where a defendant does not appear at the time and place appointed by the summons or summonses what has to be proved before the Justice can proceed is "due service … upon [the defendant] a reasonable time before the time appointed for his appearance". The test as to time is a reasonable time before the time appointed for the defendant's appearance. The reference to due service is a reference to one of the methods of service permitted by s 63, that is, personal service, leaving the summonses with some person for the defendant at his last or most usual place of abode, or posting it by prepaid letter post to his last known place of residence or business. In view of the reference to "a reasonable time" it is difficult to contend that it is mandatory to post the summonses 28 days before the return day. 110 I have reached the following conclusions:

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