Director-General NSW Department of Primary Industries v Richard Bagnall

[2007] NSWSC 1388

CITATION:	Director-General NSW Department of Primary Industries v Richard Bagnall [2007] NSWSC 1388 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19 November 2007
JUDGMENT DATE :	29 November 2007
JUDGMENT OF:	Fullerton J
DECISION:	1. The Magistrate erred in concluding that she had no jurisdiction to hear the proceedings.; 2. I remit the proceedings back to the Local Court to be dealt with according to law.; 3. I make no order as to costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - Statutory interpretation - Service of Court Attendance Notices by post - Residential premises and usual place of residence
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Fisheries Management Act 1994
CASES CITED:	Di Natale & Anor v Kelly [2006] NSWCCA 201; (2006) 66 NSWLR 130 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 Sharman v Director of Public Prosecutions [2006] NSWSC 135; (2006) 161 A Crim R 1
PARTIES:	Director-General NSW Department of Primary Industries Richard Bagnall
FILE NUMBER(S):	SC 2007/12459
COUNSEL:	DK Jordan/M Daniels TM Healey
SOLICITORS:	Crown Solicitor Bilbie Dan
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Trad LCM
LOWER COURT DATE OF DECISION:	23 April 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

FULLERTON J

29 NOVEMBER 2007

2007/12459 DIRECTOR-GENERAL NSW DEPARTMENT OF PRIMARY INDUSTRIES v RICHARD BAGNALL

JUDGMENT

HER HONOUR:

1 This is an appeal brought by the Director General of the Department of Primary Industries (“the Department”) pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 from a decision of her Honour Magistrate Trad delivered on 23 April 2007 in the Local Court at Toronto.

2 On that day, two Court Attendance Notices were listed for hearing charging Mr Bagnall with having in his possession prohibited sized fish, namely lobsters, contrary to s 6(1) of the Fisheries Management Act 1994 and alleging a breach of clause 108 of the Fisheries Management (General) Regulation by reason of his interference with setting fishing gear, namely commercial lobster traps. Both offences were alleged to have been committed on 4 April 2004.

3 The circumstances giving rise to the alleged breaches of both the Fisheries Management Act and the Regulations do not need to be detailed here since the decision from which the appeal is brought is limited to whether her Honour erred in holding that the Court Attendance Notices had not been served on Mr Bagnall in accordance with the regime provided for in the Criminal Procedure Act 1986 and Local Courts (Criminal and Applications Procedure) Rule such that the Local Court was without jurisdiction to hear and determine the substantive proceedings.

4 The Department seeks declaratory relief and a direction that the matter be remitted to the Local Court for a hearing in accordance with law.

5 It was not in issue in the proceedings before her Honour or on the appeal that Mr Bagnall was entitled to dispute the validity of service of the Court Attendance Notices and that his attendance at the hearing, as required by the Notices, did not constitute a waiver of that right (see Di Natale & Anor v Kelly [2006] NSWCCA 201; (2006) 66 NSWLR 130).

The legislative scheme

6 The position taken by the Department in the proceedings before the learned Magistrate and on appeal was that service had been validly effected in accordance with the statutory scheme provided for in s 172, s 177 and s 178 of the Criminal Procedure Act 1986 and rule 18 of the Local Courts (Criminal and Applications Procedure) Rule. I note that this scheme was introduced in 2003 following the repeal of the Justices Act 1902 (see Sharman v Director of Public Prosecutions [2006] NSWSC 135; (2006) 161 A Crim R 1).

7 At the relevant time (that is, at the time of issue of the CAN in January 2006, as to which see paragraphs 12 and 13 of this judgment) sections 172, 177 and 178 provide as follows (relevant parts underlined):

“ 172 Commencement of proceedings by court attendance notice
(1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.
(2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.
(3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.

177 Service of court attendance notices
(1) A court attendance notice issued by a police officer must be served by a police officer in accordance with the rules.
(2) A court attendance notice issued by a public officer must be served by a police officer, public officer or other person of a class prescribed by the rules, in accordance with the rules.
(3) A copy of a court attendance notice issued by a person other than a police officer or a public officer must be served by a person of a class prescribed by the rules in accordance with the rules.
(4) A copy of a court attendance notice must, except with the leave of a Magistrate or a registrar of the court, be filed in a court not later than 7 days after it is served and must contain an endorsement as to service.
(5) Leave may be granted under subsection (4) after the expiry of the 7-day period referred to in that subsection.

178 When proceedings commence
(1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.
(2) A court attendance notice may be filed even though it has not been served if:
(a) a warrant is sought under this Part for the arrest of the accused person, or
(b) the notice is not able to be served, despite reasonable attempts to do so, or
(c) the registrar gives leave to do so after forming the opinion that it is not reasonable in the circumstances of the case to require prior service of the notice.
(3) Nothing in this section affects any other Act or law under which proceedings are taken to have been commenced on another date.”

8 Rule 18 provide as follows:

“ 18 Service of court attendance notices in summary proceedings
(1) A court attendance notice commencing proceedings for a summary offence is to be served on a person (the accused person ) against whom the proceedings are commenced in accordance with this clause.

(2) Service of a court attendance notice may be effected:
(a) by handing it to the accused person, or
(b ) by handing it to a person at the accused person’s usual place of residence or business who is apparently of or above the age of 16 years, or
(c) if the accused person is an inmate of a correctional centre, by handing it to the officer in charge of the correctional centre or by sending it by post or facsimile or other electronic communication to the officer in charge of the correctional centre, or
(d) 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, or
(e) by sending it by electronic communication to the person’s email address.

(2A) In the case of a court attendance notice concerning proceedings in relation to which the accused person is represented by a legal practitioner, service of the notice may also be effected:
(a) by handing it to the legal practitioner, or
(b) by handing it to a person at the legal practitioner’s usual place of business who is apparently of or above the age of 16 years, or
(c) by sending it by post or facsimile to the legal practitioner’s business address, or
(d) by sending it by electronic mail to the legal practitioner’s email address,
but only if the legal practitioner has agreed to accept service of the notice and only in accordance with a mode of service agreed to by the legal practitioner.

(3) Service of a court attendance notice on a corporation may be effected by serving the notice in accordance with subclause (2) on a principal officer of the corporation or, if provision is made by or under any other Act for service of a document on the corporation, by serving the notice in accordance with that provision.

(4) If, on tender of a court attendance notice to a person, the person refuses to accept it, the notice may be served by putting it down in the person’s presence after the person has been told of the nature of the notice.

(5) Subclause (2) (d) and (e) do not apply to service of a court attendance notice relating to an indictable offence that is dealt with summarily.”

Her Honour’s reasons for decision

9 It would appear that her Honour took the view that on the evidence personal service of the Court Attendance Notices on Mr Bagnall’s mother at 1 Cutter Close Corlette may have been effected, thereby invoking the operation of Rule 18(2)(b), or service by post at the same address, thereby invoking Rule 18(2)(d). Her Honour did not see the need to resolve the question as she came to the view that in either event at the relevant time the nominated address for service on the Notices, was not Mr Bagnall’s usual place of residence as provided for in Rule 18(2)(b) or his residential address as provided for in Rule 18(2)(d) and, that since the scheme for service of Court Attendance Notices is a mandatory scheme and that she was satisfied that service of the Court Attendance Notices on Mr Bagnall had not been validly effected, the Court was without jurisdiction to hear the substantive proceedings against him.

10 Whatever may have been the position in the Local Court, it was common ground on the appeal that Rule 18(2)(d) was the only provision I needed to be concerned with. The uncontradicted evidence before me established that a Departmental officer, Ms Hams, prepared the two Court Attendance Notices for service by post, that each Notice specified the address for service as 1 Cutter Close, Corlette and that the Notices were lodged for service by ordinary post within the Department. In addition, she gave evidence that no mail items were returned and that there was no note on the file for a RTA check to be done as is customary when served notices are returned.

11 Accordingly, the question for determination on the appeal was whether her Honour erred in finding that Mr Bagnall had not been validly served with the Court Attendance Notices by post at his residential address as provided for in Rule 18(2)(d).

Preparation of and service of the Court Attendance Notices

12 Ms Hams gave evidence that in May 2004 she opened a file in Mr Bagnall’s name in relation to the offences alleged to have been committed on 4 March 2004 under the Fisheries Management Act 1994 and the Fisheries Management (General) Regulation. For reasons that are not explained, the Court Attendance Notices were not issued until 23 January 2006. Ms Hams gave evidence that she obtained the Cutter Close address as the address for service from a previously issued Court Attendance Notice in Mr Bagnall’s name, a Notice which was contained within the Departmental file opened in May 2004. I note that the previous Court Attendance Notice was dated November 2004. There was no evidence as to how 1 Cutter Close, Corlette came to be recorded on the previous Court Attendance Notice save for the fact that Mr Bagnall was resident at his mother’s home for a time after a motor cycle accident in July 2004. Despite the fact that Mr Bennet, a Departmental officer, gave evidence that he arranged for service of the previous Court Attendance Notice, and that he believed at that time that the Cutter Close address was Mr Bagnall’s residential address, no evidence was led from him as to the basis for that belief. Moreover, Mr Bennet gave no evidence at all to substantiate his belief that Mr Bagnall’s usual place of residence (or residential address) was 1 Cutter Close, Corlette in January 2006 or that he communicated his views to Ms Hams in that regard. In the result, the only evidence as to why that address was nominated as the address for service came from Ms Hams. She said that she made no inquires to confirm that the address at 1 Cutter Close, Corlette was an address which might properly be described as Mr Bagnall’s residential address in accordance with Rule 18(2)(d). In fact, it would appear that she simply proceeded on the untested assumption that the address was in fact his residential address by reference to the Court Attendance Notice issued in November 2004. She also fairly conceded that having elected to process the Notices for service by post that she made no arrangements or enquires so as to enable a Departmental officer to effect personal service upon Mr Bagnall in accordance with rule 18(2)(a), and made no enquires of the informant or other officers as to any information they may have about Mr Bagnall’s usual place of residence or his residential address.

Mr Bagnall’s places of residence between 2004 and 2006

13 The uncontested evidence before her Honour was that at the time of issue of the Notices and the posting of the Notices in January 2006, Mr Bagnall’s mother resided on her own at 1 Cutter Close, Corlette, a locale proximate to Nelson Bay, and that Mr Bagnall lived at Lot 22 Appletree Glen Burrapine, some distance out of Macksville on the North Coast of New South Wales. Although there was some suggestion in the questions put to Mr Bagnall in cross-examination that he had taken deliberate steps to ensure that his mother and the Department were unaware of where he lived in 2006, there was no evidence that this was in fact the case.

14 Mr Bagnall gave evidence that he took up residence at the Burrapine address towards the end of 2004 after having spent eight weeks at his mother’s residence recovering from injuries he sustained in a motorcycle accident in July 2004. He gave evidence that he was hospitalised for two months following the accident after which he recuperated at his mother’s home. He said, in effect, that after leaving his mother’s in October/November 2004, he had lived permanently at the Burrapine address before moving to another country residence in the same district about 12 months before the matter came on for hearing before her Honour in April 2007.

15 On any view of the evidence, he was not a permanent resident at his mother’s home at the time of issue or service of the Court Attendance Notices, and had not been in permanent residence at that address for some considerable time. He could not even be said to ordinarily or usually reside at his mother’s home accepting as I do what Lockhart J understood that term to mean in the context of the Bankruptcy Act in Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 at 198. His Honour said:

“The concept of “ordinary residence” for the purposes of the Act connotes a place where in the ordinary course of a person's life he regularly or customarily lives.”

16 The Department submitted that the fact that Mr Bagnall did not live permanently at his mother’s home is not determinative of what is comprehended by the concept of the person’s residential address as that phrase is used in Rule 18(2)(d) since a person may have more than one residential address. While it is doubtless true that a person may reside at more than one place as a matter of routine or custom, even if one of the two is the more dominant residence, for reasons that I will make clear presently, I do not consider that this bears materially on the question that falls for determination on the appeal.

Was 1 Cutter Close Corlette Mr Bagnall’s residential address at the relevant time

17 Although the Department accepted that Mr Bagnall was not living at 1 Cutter Close, Corlette at the time of service of the Court Attendance Notices, it sought to persuade me of other indicia of 1 Cutter Close being his residential address at that time for the purposes of Rule 18(2)(d). The Department placed reliance on two distinct matters.

18 The first was Mr Bagnall’s routine practice of visiting his mother every alternate weekend in order to exercise access rights to his children and that he would stay overnight at her home with the children for one or two nights for that purpose. Mrs Bagnall gave evidence that this arrangement had been in place from at least mid way through 2005 up to and after March 2006.

19 The second matter was that as at January – March 2006, Mr Bagnall used his mother’s address as his mailing or postal address. This was confirmed by Mrs Bagnall. She gave evidence that from November 2004 when he left her home to live elsewhere after recuperating following his accident she would frequently receive mail addressed to her son and would either hold his mail for him until she next saw him or send it on to a post office box at Macksville used by Mr Bagnall’s father. I am satisfied that it was by this means that the envelope from the Department addressed to Mr Bagnall at his mother’s address, and containing the Court Attendance Notices prepared by Ms Hams, were given to Mr Bagnall. He does not put this in issue. In fact, he gave evidence in chief that he received them from his mother in March 2006. While there was no evidence as to why he used his mother’s address as his mailing or postal address, save for the suggestion that it carried over from the time when he was recuperating at his mother’s home in the second half of 2004, it is clear beyond doubt that he did so.

20 Mr Bagnall submitted that neither matter relied upon by the Department was indicative, much less determinative, of the issue of validity of service since the phrase the person’s residential address in Rule 18(2)(d) connotes an address at which the person is domiciled and spends the preponderance of their time. The fact that Mr Bagnall may have visited his mother with regularity at the Cutter Close address and had mail delivered there for his collection was, so it was submitted, not to the point.

Was service validly effected?

21 On the basis of what I consider is the proper construction of Rule 18, I have come to the view that service was validly effected by post at Mr Bagnall’s residential address as provided for in Rule 18(2)(d). In my view, her Honour failed to appreciate the significance of the fact that Mr Bagnall utilised his mother’s residence at 1 Cutter Close, Corlette in the context of construing what is meant by the concept of a person's residential address in Rule 18(2)(d) and that this has been productive of error.

22 Neither residential address in Rule 18(2)(d) nor usual place of residence in Rule 18(2)(b) are defined terms. This is hardly surprising. It would be difficult to see the need for a special or technical meaning of either phrase in either the Criminal Procedure Act 1986 or Local Courts (Criminal and Applications Procedure) Rule given the regular use of them, or phrases like them, in procedural regimes in both Commonwealth and State statutes.

23 I am satisfied that after giving the phrases their ordinary English meaning and considering them in the context of the Rules in which they find expression, they have quite different work to do (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355). Rule 18(2)(b) provides for service at a person’s usual place of residence or usual place of business but service under this Rule must be on a person at those premises apparently over 16 years of age. There is no time limitation for service imposed in the Rule itself. In addition, Rule 18(2)(b) omits any reference to the ‘address’ at which a person usually lives or works.

24 By contrast, the reference to service by post or facsimile in Rule 18(2)(d) can only be to the person's residential address and the notice must be served by post or facsimile not less than 21 days before the first day listed for hearing. Importantly, there is no provision in Rule 18 or any sub-rule for service by post or facsimile to a person’s business or commercial address. In addition, the legislature has not utilised the concept of a person’s postal address as an effective address for service by post or facsimile under Rule 18 at all. This may be in recognition of the fact that while it is not unusual for a post office box address or a business or commercial address to be nominated as a person’s postal address, by limiting Rule 18(2)(d) both as to the place where the Court Attendance Notice might be sent by post or facsimile (namely a residential address) and the time within which it must be sent (not less than 21 days before the first day listed for hearing), the possibility of the Court Attendance Notice not coming to the attention of the person to be served might be avoided. While Rule 18(2)(d) assumes that the residential address for posting and/or faxing is discernible and definitive, when Rule 18(2)(d) is read in the context of Rule 18 in its entirety and Rule 18(2)(b) in particular, it also contemplates that a person’s usual place of residence and a person’s residential address may not be the same address even if in most cases they will be.

25 On the facts of this case Mr Bagnall’s usual place of residence and his residential address for service by post were different. In my view he was effectively served since the Court Attendance Notices were sent by post to the very address he acknowledged was his residential address for such purposes. It is immaterial that Ms Hams was unaware that this was in fact his residential address for the purposes of service by post and that service was effected fortuitously. What remains is that he was validly served when the Notices sent by Ms Hams to 1 Cutter Close, Corlette were received there by him.

26 The orders I make are as follow:

1. The Magistrate erred in concluding that she had no jurisdiction to hear the proceedings.
2. I remit the proceedings back to the Local Court to be dealt with according to law.
3. I make no order as to costs.
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28/03/2014 - quotation of paragraphs (a)-(c) added to section 178 When proceedings commence - Paragraph(s) 7