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Key decisions

  • Young v Sprague [2015] NSWSC 1874
  • Skelton v R [2015] NSWCCA 320
  • Glover v R; Stuart v R [2015] NSWCCA 285
  • Bignill v DPP [2016] NSWCA 13

Young v Sprague [2015] NSWSC 1874

In a decision which is relevant to all practitioners, but particularly for those who represent rural and remote clients, the Supreme Court has considered how Court Attendance Notices (CANs) must be served.

Young was prosecuted by the RSPCA for alleged contraventions of the Prevention of Cruelty to Animals Act 1979 (NSW). He owned a mare which was examined by an inspector. The mare was found to be emaciated and suffering from other ailments; it was ultimately euthanized.

Young lived on a remote rural property with no mail delivery. As long ago as 2011 (a lapse of time which could not have assisted the accused in this appeal), the RPSCA issued court attendance notices by posting them to the accused’s Post Office box. Evidently he received them, because he came to court as required. Nevertheless, his representatives argued that the Local Court had no jurisdiction to hear the case because service had not been effected in accordance with the Local Court Rules 2009 (NSW). Those rules provide that a CAN may be served personally, or by post – to the person’s residential address, which his PO box plainly was not (the rules also allow for service by electronic means, if the accused agrees).

In the Supreme Court on appeal, Adams J found that the accused had been validly served: ‘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.’ (at [13])

It should perhaps be observed that the rules do actually specify the manner of personal service. Local Court Rules 2009 (NSW) r 5.3, ‘How personal service effected generally’, provides a procedure that will be familiar to all lawyers. It is not clear whether that rule was brought to his Honour’s attention. His Honour also left hanging the Magistrate’s original reason for determining that service had been valid: the rules provide that service ‘may’ be effected by one of the listed means, which on one view is permissive, rather than restrictive.

Nevertheless, what is clear from the conclusions reached by Adams J (including in particular a reference to Greek mythology that this author had to Google to understand) is that service of CANs will not be viewed over-strictly by the Supreme Court. That must be particularly so where the accused actually attends court, which served here as proof that the accused had received the CANs, even though his Honour left open that more proof might have been required if he had not attended court.

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