R v Resource Planning and Development Commission

[2000] TASSC 11

[2000] TASSC 11

CITATION:              R v Resource Planning and Development Commission [2000] 11

PARTIES:  R
  v

RESOURCE PLANNING AND DEVELOPMENT COMMISSION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M292/1999
DELIVERED ON:  23 February 2000
DELIVERED AT:  Hobart
HEARING DATES:  23 February 2000
JUDGMENT OF:  Evans J

CATCHWORDS:

Procedure - Supreme Court Procedure - Tasmania - Practice under Rules of Court - Service - Service of a general order to show cause on persons affected must be by personal service.

Acts Interpretation Act 1931, s29AB.

Rules of the Supreme Court (Tas) 1965, O72, r2, r3, O83, r13.

Aust Digest Procedure [268]

REPRESENTATION:

Counsel:
           Prosecutor:  A M Blow, QC
           Respondent:  T J Ellis
           Meander Valley Council:             M J Brett
Solicitors:
           Prosecutor:  Ogilvie McKenna
           Respondent:  Director of Public Prosecutions
           Meander Valley Council:             Rae & Partners

Judgment Number:  [2000] TASSC 11
Number of Paragraphs:  1

Serial No 11/2000
File No M292/1999

THE QUEEN v
RESOURCE PLANNING AND DEVELOPMENT COMMISSION

REASONS FOR JUDGMENT  EVANS J
(GIVEN ORALLY)  23 February 2000

1. To prove service of a general order to show cause on the persons affected, as directed by that order, the prosecutor relies on service by mail and says that this is authorised by the Acts Interpretation Act 1931, s29AB. The orders made as to service do not specify the manner of service. The Rules of Court, pursuant to which those orders were made also do not specify the manner of effecting service.  Insofar as what is required to be served is an order to show cause which, for the purposes of the persons served, is the originating document in proceedings, the result of which they will be bound by, I would have expected the means of service to be personal as is required for originating proceedings by O9, r1.  Personal service is not, however, expressly required by O72, r2 or r3.  That being so, is service by mail sufficient?  In the absence of any contrary intention in the Rules of Court, the Act, s29AB, would apply to allow service by mail. In my view a contrary intention to the application of that section is manifested by, O83, r13.  Pursuant to this rule, service by mail is only allowed where a person has an address for service and the service is by certified mail. In result, service by mail is only authorised if effected by certified mail, and this form of service can not be utilised until a party has been personally served and entered an appearance or otherwise has an address for service.  To me, the presence of this rule in the Rules of Court is a clear indication of an intention that s29AB has no application in relation to service pursuant to the Rules and does not authorise service by mail in the circumstances before me.  The relevant documents should be personally served on the affected parties and I will so order.