Young v Sprague

Chronology

1. The plaintiff's residential address was specified in each of the CANs as "Grangers Close, Gundary", which was a remote rural property with no mail delivery. On 19 July 2011 the defendant posted the CANs to the plaintiff's post office box and, on 22 July 2011 each CAN was filed at Goulburn Local Court, the defendant having completed the statement of service of each, attesting to service by post. The first return date of the CANs before the Goulburn Local Court was 24 August 2011. On that date, the plaintiff appeared in person before the presiding Magistrate at Goulburn Local Court. For various reasons the hearing did not proceed. Communications ensued between the defendant's solicitor and the plaintiff and, on 22 September 2011, the plaintiff obtained subpoenas for production of documents from the Local Court against a number of persons, each returnable on the next mention date, 30 September 2011. Further communications ensued between the defendant's solicitor and the plaintiff and, on 30 September 2011, the matter came before Magistrate Stoddart at the Goulburn Local Court. The defendant was represented by counsel, the plaintiff appeared in person. He confirmed his plea of not guilty (foreshadowed on 24 August 2011) and indicated that he wished to make certain interlocutory applications. Those proceedings were listed for hearing on 25 October 2011 and the substantive prosecution for 12 and 13 December 2011. On 25 October 2011 the interlocutory applications came before Magistrate Beattie at Goulburn Local Court and, when her Honour declined to accede to the plaintiff's application that she should disqualify herself from hearing the matter, he left the court room. Her Honour dealt with the outstanding applications, adjourning one to 13 December 2011, confirming the hearing dates of 12 and 13 December 2011 and directing the Registrar to notify the plaintiff of the orders. Those dates were subsequently vacated and the matter fixed for hearing on 27 and 28 February 2012. On 27 February 2012 the matters came on for hearing before Magistrate Beattie. The plaintiff was represented by Mr Doughty, a solicitor, who challenged the validity of the CANs and also contended that the mode of service did not comply with the Local Court Rules, hence, that the court had no jurisdiction to hear and determine the CANs. For the defendant, Mr Bodor SC submitted that the modes of service were permissive and that there could be no doubt that the plaintiff had received the notices, since he had appeared at court on the first return date in response to them. The objection to jurisdiction was rejected by the Magistrate and the prosecution case then proceeded on the merits. It was adjourned part heard to 14 May 2012. On the plaintiff's applications this was changed to 24 and 25 September 2012. The hearing was again adjourned part heard to 9 and 15 November 2012. In his evidence on 15 December 2012, the plaintiff disclosed that he was served with the CANs some time before August 2011. On 11 December 2012 the magistrate convicted the plaintiff of all charges. The plaintiff immediately lodged appeals against his convictions to the District Court. They proceeded in that court on 9, 11 and 12 December 2013, 9 and 14 March 2014, 15 August 2014 and 7 November 2014 and are presently adjourned for mention only, pending the present application.

Legislation

1. Criminal Procedure Act 1986 (NSW) - s 177 Service of court attendance notices (1) A court attendance notice issued by a police officer must be served by a police officer or prosecutor in accordance with the rules. (2) … (3) … (4) … s 190 Time for hearing (1) On the first return date for a court attendance notice in any summary proceedings, or at such later time as the court determines, the court must set the date, time and place for hearing and determining the matter. (2) The court must notify the accused person of the date, time and place, if the accused person is not present. (3) However, if the accused person is not present at the first return date or at any subsequent mention of the proceedings and has not lodged a written plea of not guilty in accordance with section 182, the court may proceed to hear and determine the matter on the first or a subsequent day on which the matter is listed for mention at its discretion. (4) The court may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the mention date.
2. Local Court Rules 2009 (NSW) - r 5.9 Service of court attendance notices in summary proceedings (1) A court attendance notice commencing proceedings for a summary offence may be served: (a) personally, (b) by sending the notice by post, addressed to the person, to the person's residential address, (c) by faxing a copy of the notice, addressed to the person, to the person's facsimile number (if that method of service has been consented to by the person), (d) by transmitting an electronic copy of the notice, addressed to the person, to the person's electronic service address (if that method of service has been consented to by the person). (2) If service of the notice is effected by post, facsimile or any other electronic means, the notice must be served on the person not less than 21 days before the first listing of the offence.

Findings of fact

1. In her judgment of 27 February 2012 the Magistrate found that the defendant had posted the CANs to the plaintiff on 19 July 2011. Although the address on them was "Granger's Close, Gundary", they had been posted to the post office box, details of which had come to her from the plaintiff by way of an email. The return date was 24 August 2011. The learned Magistrate considered that the methods of service stipulated in Rule 5.9 were optional, sub-rule (1) stating that a CAN "may be served" (emphasis added) in the various specified ways, the key question being whether the CANs came to the notice of a defendant. Her Honour concluded that, by reference to s 76 of the Interpretation Act 1987 (NSW), the notices would have been delivered to the post office box four working days after they were served. She concluded that there was therefore sufficient time allowed to enable compliance with the Rules.

Submissions

1. Mr Baran, appearing pro bono for the plaintiff, submitted that the service requirements of the rules were a closed list so that, although the word "may" is used, it applied to the specified choices, an interpretation strengthened by the absence of the use of "or" for each method listed. So far as the argument that, in the result the CANs were personally served in the sense that, although they were delivered to the plaintiff's post office box, he personally obtained them (as distinct from merely having notice of them), Mr Baran submitted that this argument had not been put before the Magistrate.
2. Mr Baran referred to Di Natale & Anor v Kelly [2006] NSWCCA 201; 66 NSWLR 130 where Hall J (Grove J agreeing, Smart AJ dissenting), held that the various kinds of service of summonses prescribed by s 63 of the Justices Act 1902 (NSW) (now repealed), which included service by post, were not merely procedural in nature but conditions precedent, upon which validity of service depended and, in turn, valid proceedings. Section 63(2) permitted the summons in question to be served by post not less than 28 days before the return day. However, it had been posted only 15 days prior to the return date and, accordingly, the requirements of s 63(2) had not been complied with. Although the appellants acknowledged that they received the summonses and signed and lodged a form described as a written "notice of pleading" indicating that they were intending to plead "not guilty", Hall J considered that this was not a waiver of the requirement under s 63(2) as to service within the specified time, although had they attended court and the hearing proceeded without objection being taken to the validity of service it may be that this would amount to an abandonment of the point (at [63] - [64]). As it happened, when the matter first came on, the appellants did not appear; the court adjourned the proceedings for a defended hearing but the notice of the new date had been sent to the wrong address, so that the appellants failed to appear and suffered convictions against them in their absence. Hall J noted that there was no provision enabling variation of the 28 day minimum period specified in s 63(2) and strict compliance was a precondition to valid action (at [80]). It will be seen that the question of whether, in the circumstances, the summons had been served personally did not arise; indeed, personal service, it may be, could only be effected in the manner specified by s 63(1). Such methods are not mentioned, let alone prescribed, by r 5.9.
3. Mr Baran also took me to Scope Data Systems Pty Ltd v David Goman as Representative of the Partnership BDO Nelson Parkhill [2007] NSWSC 278; 70 NSWLR 176 dealing with service of a statutory demand, crucially as to when the statutory demand had been served. The demand was sent by the defendant to the plaintiff addressed to the latter's registered office, which was that of its accountant. By arrangement between the accountant and the post office all mail addressed to it at its place of business was placed in a post office box and collected in due course by the accountant. Although the demand had been posted on 25 September 2006, it was not collected by the accountant until 3 October 2006. If this date were regarded as the date of service, the plaintiff's application to set aside the statutory demand was made in accordance with s 459G of the Corporations Act 2001 (Cth) but, if it had been served earlier, the application was out of time. The statutory demand was never delivered by Australia Post to the company's registered office because of the accountant's arrangements with the post office. White J concluded that the time the demand was actually delivered to the postal address was when it was brought by the accountant after he collected it from the post office. The presumption as to delivery by post did not therefore operate; delivery to the post office box was not the same as delivery to the company's registered office, differing in this respect from the contrary view expressed by Hodgson JA in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 at [56]. Mr Baran argued that, by analogy, delivery to the plaintiff's post office box could not be delivery to his residence. Mr Baran also referred me to Director-General NSW Department of Primary Industries v Richard Bagnall [2007] NSWSC 1388 where the relevant rule permitted service of a court attendance notice "by sending it by post or facsimile to the person's residential address not less than 21 days before the first listing date for the offence". As it happened, the notice was served on the home of the defendant's mother, where she resided on her own, although he had lived there with his mother from time to time. It was accepted that he was not a permanent resident at his mother's home at the relevant time and had not been in permanent residence at that address for some considerable period. Nor could he be said to ordinarily or usually reside at his mother's home. At the relevant time, however, the defendant visited his mother frequently and would stay overnight for one or two nights every alternate weekend. More significantly, he used his mother's address as his mailing or postal address. Fullerton J was satisfied that the relevant process, addressed to the defendant at his mother's address, had been given to him. He did not put this in issue and there was no doubt that he used that address as his mailing or postal address. Fullerton J held that the terms "residential address" and "usual place of residence" as used in the rules were to be given their ordinary English meaning and considered in the context of the rules (at [22] - [23]). Her Honour found that the defendant's "usual place of residence" and his "residential address for service by post" were different and he was effectively served since the notices were sent by post "to the very address he acknowledged was his residential address for such purposes". It followed that the notices were validly served. Mr Baran makes the point that a post office box, although it might be accepted as an address for service of notices by the plaintiff, could on no count be regarded as the plaintiff's "residential address" within the meaning of subparagraph (b) of r 5.9(1).
4. Mr Sutherland SC took up this point by submitting that the plaintiff had consistently used in affidavits filed for the purposes of proceedings his post office box as his address and that this was analogous to the mother's residence in Bagnall. I do not accept this submission. Amongst other things, it seems to me, that the Rule, by specifying a residence in the context of post and not a post office box, implicitly excludes the latter as available for service. Mr Sutherland also pointed out that, in Di Natale, the plaintiffs had never appeared in person in the proceedings and were never effectively given a notice of the hearing date. He submitted that, in effect, the Magistrate had decided that, one way or another there was no doubt that the CANs had been delivered to the plaintiff. At all events, the specified means were not an exclusive list, he had received the notices and the Court had jurisdiction to hear and determine them. If, however, the Magistrate erred in this respect, any irregularity in the manner of providing notice to the plaintiff of the first return date did not go to the jurisdiction of the court to deal with the CANs which were before it. It was submitted that the conduct and appearances of the plaintiff following his first appearance demonstrated that he had appropriate notice of the hearing dates and had actively participated in the court processes on a number of occasions prior to the argument raised concerning validity of service. It was contended that by his conduct and that of his legal representative following rejection of his submissions regarding service and his active participation in a substantive hearing occupying some six days, the plaintiff had waived any entitlement to rely on the procedural irregularities. Reliance was, in particular, placed upon the procedural scheme prescribed by Div 3 of the Criminal Procedure Act, in particular s 190. Subsection (4) provides that the court "may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the mention date." [Emphasis added.] This shows that the only impediment, as it were, involving notice is the absence of reasonable notice. Providing, therefore, that reasonable notice was given by any means, s 190(4) implicitly permits the court to proceed to hear and determine the matter. This demonstrates, it is contended, that the provisions as to service are facultative and not jurisdictional, though they might be decisive in the absence of personal service if the defendant fails to appear. No question could arise here as to the plaintiff having received "reasonable notice" and it followed there was no impediment to the Local Court exercising its jurisdiction to hear and determine the CANs.
5. Mr Sutherland SC referred to Guss v Magistrates' Court at Victoria [2003] VSC 365 where the court considered the effect of s 34 of the Magistrates' Court Act 1989 (Vic) which provided for service (amongst other methods) by "delivering a true copy of the summons to the defendant personally". Service could also be effected by leaving a copy of the summons at the defendant's last or most usual place of residence or of business with a person over the age of 16 years apparently residing or working there. Service had been effected, it was alleged, by leaving a copy of the summons with a person over the age of 16 at appropriate business premises. The plaintiff deposed that he was not a director of the company which carried on business at that address and the premises were not his most usual place of business, although, at the time of purported service, he would have attended the premises several days a week but not a full day at a time, acting in his capacity as a consultant to the company which carried on business there. He agreed, however, that he had in fact received a copy of the summons within a "couple of days" after it was left for him. When the matter came on for hearing, counsel for the plaintiff announced his appearance "under protest" and contended that the plaintiff had not been properly served. The magistrate concluded that, indeed, the summons had not been served at the plaintiff's "most usual place of business" but nevertheless, having regard to the fact that no issue had earlier been raised despite attendances at court (of a procedural kind) it was too late now for the objection to be raised as to jurisdiction. Osborn J held that, as the plaintiff himself gave evidence that he had personally received the copy summons left for him, the "evidence of service before the magistrate ultimately did not rest upon the leaving of the document at the premises but upon the fact of personal receipt by the plaintiff" (at [12]). His Honour concluded - "[20] In my opinion the defendant's evidence established not only that a true copy of the summons had been delivered to him personally within the ordinary meaning of those words but also established that he had been served personally in the sense in which that concept has been articulated by authority [to which his Honour had earlier referred] in this State. Furthermore, there is no underlying purpose which can be identified in the provision which might lead to the conclusion that it should be given other than its ordinary meaning."
6. His Honour found it unnecessary to determine whether a defect in service in accordance with the Act could be waived but observed that there is "longstanding authority to suggest that it might", citing Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1937-8) 59 CLR 369 per Latham CJ.

Conclusion

1. It seems to me that the issues here have been unnecessarily complicated by Procrustean attempts to fit the mode of service of the CANs into the framework of those parts of the Rule which do not describe what happened. The CANs came into the plaintiff's possession, on his own admission well before the return date. The Magistrate was invited to hold this was an inescapable inference from his attendance on that occasion and his undoubted familiarity with their content. In my view the submission was correct. This is personal service. The Rules do not specify the manner in which it is to be effected. Providing the CANs come into the possession of the defendant or to his notice, personal service has occurred, however it was undertaken, including by posting them to the defendant's post office box. (Of course, if the defendant did not attend court, the absence of proof of service by the other specified methods would prevent further proceeding with the matter unless there were other evidence that proved his collection of the process from his box - and, hence, personal service.) Since the matter is one of jurisdiction, this Court is entitled to look also at the plaintiff's admission of receipt, although it came after her Honour's conclusion that service was effective. It will be noted that the methods of service listed in the rule other than personal service do not assume, let alone require, that the notice actually come to the attention of the defendant; the service is complete upon the (unilateral) acts of the server. This is scarcely surprising, since one of the purposes of the alternative modes is to permit, after further procedures have been undertaken, to permit the matter to be heard or determined in the absence of any response or appearance by a defendant. Here, for the reasons given, those methods are irrelevant. I am satisfied that the plaintiff was personally served with the CANs within the meaning of r 5.9(1)(a) of the Local Court Rules. The mere fact that the learned magistrate rejected the plaintiff's objection upon different grounds does not affect the fact that the court had jurisdiction to proceed with the hearing.
2. The summons must be dismissed with costs.

Amendments 11 December 2015 - paragraph 11, first sentence - spelling of counsel's name corrected paragraph 13, second sentence - word "attempts" deleted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2015