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

Reported Decision : 66 NSWLR 130

New South Wales Court of Criminal Appeal

CITATION: DI NATALE & ANOR v. KELLY (AN OFFICER OF THE RSPCA, NSW) [2006] NSWCCA 201 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Thursday 8 September 2005

JUDGMENT DATE: 30 June 2006

JUDGMENT OF: Grove J at 1; Hall J at 2; Smart AJ at 84

DECISION: The questions of law in the case stated should accordingly be answered (a) yes; (b) yes. Accordingly, the following orders are made: (a) Pursuant to s.5B(1) of the Criminal Appeal Act 1912, the proceedings be remitted to the District Court of New South Wales for further hearing in accordance with this Court's answers to the questions in the case stated; (b) Costs of the appeal by way of case stated be awarded in favour of the appellants against the respondent.

CATCHWORDS: Service of summons by post - summons to be served not less than 28 days before return date - whether the time prescribed is a mandatory requirement - whether the requirements may be waived - waiver of procedural requirements - validity of service of summonses - appellants lodged written notices of pleading - effect of non-compliance with a statutory requirement

Prevention of Cruelty to Animals Act 1979 Justices Act 1902 LEGISLATION CITED: Criminal Appeal Amendment Act 1912 Justices (Amendment) Act 1967 Justices (Amendment) Act 1970 Crimes (Local Courts Appeal & Review) Act 2001

Camilleri's Stock Feeds Pty. Limited (1993) 32 NSWLR 683 Turnbull v. NSW Medical Board (1976) 2 NSWLR 281 Park Gate Iron Co. v. Coates (1870) LR 5 Crown 634 Gordon v. Berowra Holdings Pty. Limited [2005] NSWCA 27 Brown v. The Queen (1985-86) 160 CLR 171 CASES CITED: Sandringham CC v. Rayment (1928) 40 CLR 510 Davies v. Davies (1919) 26 CLR 348 Ex parte Gobbert; re Wilkes & Anor (1941) 58 WN(NSW) 113 Nitz v. Evans (1993) 19 MVR 55 Platz v. Barmy [2002] VSC 531 Sinclair v. Magistrates Court of