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 PARTIES: DI NATALE, Salvatore v. KELLY, Andrew (An Officer of the RSPCA, NSW) DI NATALE, Phillip v. KELLY, Andrew (An Officer of the RSPCA, NSW) FILE NUMBER(S): CCA 2005/915; 2005/939 COUNSEL: App: B. Vasic Resp: P. O'Donnell SOLICITORS: App: Samuel Jones Legal Services Resp: Smythe & Mallam LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/22/3005 04/22/3004 LOWER COURT JUDICIAL OFFICER: Sorby, DCJ. LOWER COURT DATE OF DECISION: 13 May 2005 IN THE COURT OF CRIMINAL APPEAL 2005/915 2005/939 GROVE, J. HALL, J. SMART, AJ. FRIDAY 30 JUNE 2006 SALVATORE DI NATALE v. ANDREW KELLY (AN OFFICER OF THE RSPCA, NSW) PHILLIP DI NATALE v. ANDREW KELLY (AN OFFICER OF THE RSPCA, NSW) Judgment 1 GROVE, J: I agree with Hall, J. 2 HALL, J: These proceedings are brought by way of case stated from the decision of Sorby, DCJ. in the District Court of New South Wales. The appellants, Phillip Di Natale and Salvatore Di Natale, are, respectively, father and son. They were each prosecuted in the Picton Local Court for four offences (a total of eight alleged offences) relating to alleged animal cruelty at premises at Joadja. The facts 3 Informations were laid in relation to the alleged offences spanning a range of dates between 19 October 2002 and 20 November 2002. The proceedings were summary in nature and in each case the informations were required to be laid within six months of the alleged offence in question. The summonses issued charged each of the appellants with the alleged offences under the provisions of the Prevention of Cruelty to Animals Act 1979. 4 The informations were laid before a Justice at Bankstown and that Justice authorised the issue of the summonses. Four summonses were issued to Salvatore Di Natale and four were issued to Phillip Di Natale. All were returnable at Bowral Local Court on 14 April 2003. On 22 April 2003 the summonses were extended by a Justice at Bankstown Local Court as there was a problem locating and serving the appellants. The extended return date was 10 June 2003. Section 63(2) of the Justices Act 1902 required that summonses served by post be served not less than 28 days prior to the return day. The information and summonses were served on the appellants by post "on or about" 25 May 2003. This, it will be seen, was less than 28 days prior to the return date. 5 The appellants acknowledge that they received the summonses. Each of them signed and lodged a form described as a written "Notice of Pleading". They each indicated on the forms that they were intending to plead "Not Guilty". There was no complaint of any asserted breach of s.63(2) recorded by the appellants in the notices. The matter was listed for hearing at Picton Local Court on 26 September 2003. There was no appearance by either of the appellants. They were each found guilty in their absence. 6 The appellants sought leave to appeal against conviction to the District Court. On 27 September 2004 leave to appeal was granted. On 13 December 2004, the appeals against convictions were listed before her Honour Judge Gibb. Counsel appearing for the appellants indicated that formal objection was taken to the matter proceeding further as the summonses had not been served in accordance with s.63(2) of the Justices Act. The matter was adjourned until the 2 May 2005 for the hearing of legal argument before his Honour Judge Sorby. 7 In his judgment of 3 May 2005, the learned District Court judge stated that, in the absence of authority or statute mandating strict compliance as a condition precedent, he was not persuaded that non-compliance with the provisions of s.63(2), on the evidence before him, was anything more than procedural. On that basis, the application, he held, failed. 8 On 13 May 2005, Sorby, DCJ., sitting at Campbelltown District Court, on the application of the appellants, submitted to this court two questions of law pursuant to s.5B of the Criminal Appeal Act 1912. Section 63 of the Justices Act 1902 9 These proceedings were commenced prior to the repeal of the Act (the Justices Act 1902 was repealed on 7 July 2003). Accordingly, the provisions of the Justices Act 1902 continued to apply to the case. 10 The Justices (Amendment) Act 1967 introduced amendments to s.63 of the Justices Act 1902, to authorise summonses issued under the Motor Traffic Act to be served by post. Subsections (1A) and (1B) were introduced and they provided as follows:- "63(1A) Subject to subsection (1B) of this section, where a summons in respect of an offence punishable on summary conviction under any Act is directed to the holder of a licence issued under the authority of that Act, the summons may be served by forwarding it:- (a) by post to the address specified by that person in his application for grant or, as the case may be, renewal of the license as his address for the service of notices; or (b) where no such address has been so specified by that person or where no such address is required to be specified by or under the Act under the authority of which the licence was issued, by certified or registered post to the address appearing in the licence in force at the time the summons is forwarded." 11 Further amendments were made to s.63 under the Justices (Amendment) Act 1970. The amending Act required a summons to be posted not less than 28 days before the return day. Section 63(2) was introduced under the amending Act. It provided:- "63(2) Subject to this section a summons in respect of an offence punishable on summary conviction under an Act specified in Part I of the Fifth Schedule to this Act, or under a rule, regulation, ordinance, by-law or order made under such an Act, or an offence punishable on summary conviction under a rule, regulation, ordinance, by-law or order specified in Part II of the Fifth Schedule to this Act, may be served by posting it not less than 28 days before the return day by ordinary prepaid post addressed to the person to whom it is directed." 12 At the time these proceedings were instituted, s.63 of the Justices Act 1902 provided in part:- "63 Manner of service of summons (1) Subject to this section every summons shall be served by a member of the police force or other person upon the person to whom it is directed by delivering it to him personally or, if he cannot conveniently be met with, by leaving it with some person for him at his last or most usual place of abode. (2) Subject to this section a summons in respect of an information for an offence punishable summarily before a Justice or Justices laid by a member of the police force or a public officer may be served by posting it not less than twenty-eight days before the return day by prepaid letter post addressed to the person to whom it is directed- (a) where that person is a natural person, at his last known place of residence or business; (b) where that person is a body corporate, at a place where it trades or carries on business; or (c) in either case referred to in paragraphs (a) and (b):- (i) where there is a prescribed address for the person; and (ii) where there is no circumstances making it appear to a court that the prescribed address for that person is not the address referred to in paragraph (a) or, as the case may require, paragraph (b) in relation to that person, at the prescribed address for that person. … (5) The Justice or Justices at the hearing or adjourned hearing of an information in respect of which a summons has been issued may, notwithstanding service of the summons in the manner provided by subsection (2), order that a further summons in respect of the same offence be served in the manner provided by subsection (1), and may adjourn or further adjourn the hearing to enable that summons to be served in accordance with that order." 13 The questions of law for determination posed in the case stated were in the following terms:- "5. QUESTION OF LAW FOR DETERMINATION The question of law for determination is: (a) Did I err in law in holding that compliance with s.63(2) of the Justices Act 1902 was:- (i) not mandatory; and/or (ii) a condition precedent to the matter proceeding further?" 14 It is noted that the word "not" before the word "mandatory" should appear before sub-paragraph (i) Issues raised by the questions of law 15 Section 63(2) of the Justices Act 1902 prescribes both a method (by post) and a time for service of a summons. The section indicates that where a summons is served by post, it is to be served not less than 28 days before the return day. The issues for determination in these proceedings include:- • whether the time prescribed for the service of a summons prescribed by the provisions of s.63(2) of the Justices Act 1902 is a mandatory requirement; • whether service of a summons by posting it less than 28 days constitutes a contravention of s.63(2) of the Justices Act 1902 which has the effect of invalidating service of a summons served by post. • whether the requirements of s.63(2) may be waived by a person to whom a summons is directed. • if such a waiver is permitted as a matter of law, whether the appellants, in fact, waived their right to object to non-compliance with respect to the summonses served upon them. The appeal to the District Court 16 Each of the appellants lodged an annulment application pursuant to s.4 of the Crimes (Local Courts Appeal and Review) Act 2001. The applications were declined. 17 The appellants then sought and obtained leave to appeal against a conviction to the District Court, pursuant to s.12 of the Crimes (Local Courts Appeal and Review) Act 2001. 18 According to the case stated, on 27 September 2004 leave to appeal was granted and a direction made that the appeals against conviction proceed by way of "hearing de novo" by his Honour Judge Sides. For reasons stated below, this was an incorrect characterisation or description of the nature of the appeal to the District Court. 19 When the proceedings were listed before her Honour, Judge Gibb, for hearing of the appeals against conviction on 13 December 2004, Mr. Vasic of counsel (who also appeared on behalf of the appellants on this appeal) appeared for the appellants before her Honour and announced that a formal objection was taken to the hearing of the informations on the ground, amongst others, that the requirements of s.63(2) of the Justices Act 1902 had not been complied with. An adjournment was granted on that occasion by her Honour, the proceedings being adjourned for hearing to 2 May 2005 for the hearing of legal argument. 20 On 2 May 2005, Mr. Vasic of counsel again appeared for the appellant and again objected to the matter proceeding to hearing, on the ground that s.63(2) of the Justices Act had not been complied with. It was then submitted by Mr. Vasic that the provisions of s.63(2) were mandatory and, accordingly, the summonses were invalid. He sought that the summonses and informations be quashed or struck out. The appeal provisions applying to the District Court proceedings 21 The Crimes (Local Courts Appeal and Review) Act 2001 provides (s.12(1)) that a person who has been convicted by a Local Court in the person's absence may appeal to the District Court against conviction, but only by leave of the District Court. As indicated above, the appellants obtained the leave of the District Court to appeal from the orders of the magistrate. 22 It is important to observe that by s.18(1) in respect of appeals against conviction, such appeals are by way of a re-hearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by s.19, which latter provision is not relevant to the present appeals. 23 The transcript of the District Court proceedings of 2 May 2005 reveal that Mr. Vasic of counsel objected to service of the summonses stating:- "… if no objection is taken, there is good law to suggest that the convictions were perfectly validly entered and the proceedings are valid until objection is taken to the service." 24 Mr. Vasic went on to explain that objection had been taken when the proceedings were listed before her Honour Judge Gibb, and he sought to rely upon that objection on the basis that the proceedings in the District Court involved what he described as a "… de novo hearing, all ground appeal …". When and in relation to what proceedings ought objection to have been made? 25 On the hearing before Sorby, DCJ., Mr. Vasic argued that, having regard to the nature of the appeal, objection taken at an early point in time in the District Court proceedings was sufficient to preserve the appellants' rights to argue that the service of the summonses contravened what he contended were mandatory requirements as specified in s.63(2) of the Justices Act. On 2 May 2005, the transcript records Mr. Vasic's submission:- "… just one last point which does cover all three arguments that I am raising, and that is that your Honour in an all ground appeal sits as the magistrate. Your Honour is viewed with all the powers of the magistrate. So in my respectful submission it would be inaccurate for your Honour to examine what occurred before the magistrate and say, 'well, in effect, no objection was taken then and there'. Your Honour is in effect sitting as the magistrate." 26 Whether or not counsel for the appellants elected to argue the matter on this basis by reason of the possibility that an argument may be available and advanced by the Prosecutor that his clients may have waived their right to object to service of the summonses when the proceedings were in the Local Court, is not a question that requires examination. I consider, instead, that a primary point that arises in the current appeals is whether or not the submission of counsel set out in paragraph [25] above was correct as a matter of law. I am of the opinion, in that respect, that the submission was not correct. The answer to the question turns upon the nature of the appeals to the District Court. I will, accordingly, turn to deal with that aspect of the matter. 27 In Camilleri's Stock Feeds Pty. Limited (1993) 32 NSWLR 683, Kirby, P. (as he then was) restated the principles concerning the recognised categories of appellate jurisdiction and in doing so cited the well-known passage in Turnbull v. New South Wales Medical Board (1976) 2 NSWLR 281 at 297-298. Glass, JA. in that case included within the relevant categories of appeal:- • (e) Appeals from a judge by way of re-hearing , eg., appeals under s.75A of the Supreme Court Act 1970 ; and • (f) Appeals involving a hearing de novo , eg., appeals from a Court of Petty Sessions to a Court of Quarter Sessions, (the equivalent now of the Local Court and the District Court). 28 The appeal provisions in Camilleri were those in s.5AA(3) of the Criminal Appeal Act 1912 which are in similar terms to s.18(1) of the Crimes (Local Courts Appeal and Review) Act 2001. Section 5AA(3) provided:- "Any such appeal shall be by way of re-hearing on the evidence , if any, given in the proceedings before the (Land and Environment Court) in its summary jurisdiction and on any evidence in addition to or in substitution for the evidence so given. (emphasis added) 29 Kirby, P. observed that, having regard to the emphasised words in s.5AA(3), it was clear that the "re-hearing" proceeded, by virtue of the terms of the sub-section, upon the basis of the evidence before the Land and Environment Court. 30 Kirby, P. (with whom Campbell and James, JJ. agreed) stated that the context of the particular wording of s.5AA(3) does not lend itself to an interpretation favouring the conferral of jurisdiction of an original nature, such as a hearing de novo generally requires. As the learned former President there observed, in a de novo appeal, the matter is entirely re-litigated and determined on completely new evidence. 31 Section 18(1) does not contain the additional phrase in s.5AA(3) "and on any evidence in addition to or in substitution for the evidence so given". However, that is of no consequence to the present case. Kirby, P. held that even that phrase did not qualify the meaning to be given to the provisions of s.5AA(3). The words in s.18(1) which do not contain the latter phrase, in my opinion, plainly and similarly indicate that the hearing of an appeal by the District Court pursuant to that section is a re-hearing and not a hearing de novo. The provisions of s.18(2) which provide that fresh evidence may only be given by leave of the District Court confirms that construction. 32 It follows, accordingly, that the hearing before Sorby, DCJ. involved a re-hearing and not a de novo appeal. Accordingly the District Court in this matter did not have conferred upon it nor did it exercise in these matters jurisdiction of an original nature. 33 That conclusion as to the nature of the appeal, accordingly, means that the District Court on appeal was required to examine the way in which the proceedings were conducted before the Local Court and whether or not the appellants at that level and before any conviction was entered, waived their right to object to the Local Court's jurisdiction on the basis that the summonses in question were not served within the time specified in s.63(2). It will, accordingly, be necessary to return to this issue later in this judgment (paragraphs [58] to [74]). Proceedings at first instance – manner of service of summons: appellant's submissions 34 In the written submissions on behalf of the appellants, it was correctly stated that the service of the summonses did not comply with the requirements of s.63(2) in that they were not served not less than 28 days before the return date. The return date was 10 June 2003. The summonses were posted on 25 May 2003, that is, 15 days prior to the return date. It was submitted by the appellants that the operation and meaning of s.63 is clear and unambiguous. Reference was made in the context of s.63(1) to the word "shall" as used to impose a duty upon members of the Police Service and other persons and ought to be read as "must": s.9(2) Interpretation Act 1987 (NSW). Accordingly, subject to s.63 itself, every summons must be served in accordance with the provisions of s.63(1). 35 In relation to a summons for an offence, which is punishable summarily (informations for which are laid by a member of the Police Service or a public officer), there is the alternative authorised mode of service of a summons, namely, by post. If service by such alternative method is chosen, counsel for the appellants emphasised, then other conditions must be complied with, namely:- (a) posting is to be not less than 28 days before the return date; (b) service is to be by pre-paid letter post; and (c) service is to be effected at specified places. 36 Mr. Vasic further submitted that there was no power to allow service to be effected less than 28 days before the return date. It was contended that assistance for such a view is gained from the terms of s.63(5), (which is reproduced on p.5) which allows a Justice to order the service of a further summons in the manner provided by s.63(1), where there has, in fact, been compliance with s.63(2). 37 In light of s.63(5), it was submitted that it is apparent that there is no provision which would enable a Justice to order or allow service by post which did not strictly comply with the terms of s.63(2). Further, it was stated that s.63(7) provides that no other provision of any other Act can operate in derogation of the specific provisions of the section. 38 Finally, it was submitted:- (a) to interpret s.63(2) in such a way as to allow for the service of a summons by post less than 28 days before the return date would render its operation nugatory; (b) further, to read s.63(2) as permitting a court to proceed in such circumstances would be to avoid the otherwise mandatory requirements of s.63(2); (c) strict compliance with s.63(2) was a condition precedent to the matter proceeding further and that Sorby, DCJ. should not have gone on to hear and determine the charges until the appellants had been properly served as the Act requires. Waiver of procedural requirements 39 Before examining the question as to whether the appellants could be said to have failed to preserve their rights based on s.63(2) before the Local Court, I will first consider whether a statutory requirement such as that contained in s.63(2) as to mode and manner of service is, as a matter of law, susceptible to waiver. If so, the next question will be whether the appellants waived their respective rights to object to irregular service. 40 It is a characteristic of a right susceptible to waiver that it is one that was introduced solely for the benefit of the party said to have waived the right. A condition precedent to the jurisdiction of a court to grant relief, however, cannot be waived: Park Gate Iron Co. v. Coates (1870) LR 5 Crown 634. 41 Statutory rights, of course, are not necessarily jurisdictional and, unless jurisdictional, are themselves capable of waiver unless the statute in question was enacted for some public interest wider than that of the private parties: Gordon v. Berowra Holdings Pty. Limited (2005) NSWCA 27 per Mason, P. at [46]. The former position, in my opinion, arises in respect of statutory requirements such as those specified in s.63(2) of the Justices Act 1902, that is, they are susceptible to waiver. The requirements as to the manner of service specified in s.63(2) are, in my opinion, conditions precedent of a procedural nature that must be satisfied and, if not satisfied, may, absent waiver, provide a basis for an objection to the proceedings on the basis that they are irregular. 42 In relation to the nature of the provisions of s.63(2) and associated issues concerning waiver of statutory requirements, the following propositions are noted:- • The purpose or object of the provisions of s.63(2) is to protect a summonsed person by providing him or her with the opportunity that flows from the obligation to give the specified period of notice. • The provisions of s.63(2), are plainly statutory provisions introduced for the benefit of persons such as the appellants who have been charged with offences. Such persons may waive a statutory provision that has been enacted for his or her benefit: Brown v. The Queen (1985-1986) 160 CLR 171 at 178. • In Sandringham CC v. Rayment (1928) 40 CLR 510 at 527 Isaacs, J. stated:- "It is a well-known principle of law that a man may, by this conduct, waive a provision of an Act of Parliament intended for his benefit." • The limitations to this principle which exempt from its operation a requirement of law which is for the public benefit, does not, in my opinion, operate in relation to s.63(2). Section 63(2) is not a statutory provision enacted for the benefit of the public generally which a private individual cannot waive, see generally, Davies v. Davies (1919) 26 CLR 348 at 355. The provisions of s.63(2), as I have earlier stated, essentially establish a requirement in the nature of a condition precedent of a procedural nature. It was a requirement that was capable of being waived by the appellants in accordance with accepted principles. Case law: non-compliance: question of validity of summons process 43 The parties referred the court to a number of cases in which issues concerning validity of service of summonses were considered and which were said to be relevant to the issues in these appeals. Before further analysing issues of waiver and validity of service of the summonses the subject of these appeals, I will deal with each of the cases raised in submissions below:- (a) Ex parte Gobbert; re Wilkes v. Anor (1941) 58 WN(NSW) 113 – Service of a valid summons was a condition precedent to jurisdiction :- 44 In Ex parte Gobbert; re Wilkes & Anor, an application was made to make absolute two rules nisi for statutory prohibitions in respect of two convictions upon charges under s.3 of the Secret Commissions Prohibition Act 1919, that the applicant Gobbert corruptly gave to one McCarthy, agent for C.H. Slade & Co., two sums of money. 45 Objection was taken to the jurisdiction of the magistrate to proceed in the absence of what was said to be a proper summons. The summons had originally been issued. It was not served within the time contemplated and from time to time the informant obtained altered dates for appearance. On each occasion, the informant handed the summons to an officer of the Central Police Office who altered the date. The Justices Act required that when an information is laid before a Justice against any person, such Justice may issue his summons for the appearance of such person and that every summons shall be under the hand and seal of the Justice issuing it. 46 It was held in that case that the specified procedure as to the issue of summons was a condition precedent. Jordan, CJ. stated at 114:- "Where the procedure is by summons, it is a condition precedent to the possession of jurisdiction by a Magistrate that the defendant should be duly served with a valid summons, or, if he has not been so served, that he should appear to the charge without objecting to the absence of a summons: Dixon v. Wells …" In the present case, objection was raised; and the question therefore is whether on 26 February 1941, there was any summons in existence requiring the defendant to appear on that day." 47 Jordan, CJ. held that, on the evidence, the summonses served on the defendant were not summonses issued by the magistrate at all "… but (were) summonses from some other officer at the Central Police Office who used for the purpose the pieces of paper which had previously been used by (the magistrate) for his then long defunct summonses" (at p.114) 48 Accordingly, in that case, the "purported summons", as it was described, was invalid. That is a different circumstance from the present case. There is no attack on the validity of the information or summons but rather as to the validity of service of the summons, having regard to the non-compliance with the requirements as to service of a summons by post. (b) Nitz v. Evans (1993) 19 MVR 55 - Mandatory requirement to serve a true copy of a summons not complied with – document served not a true copy of the summons – no waiver by defendant 49 The appellants relied upon the decision in Nitz v. Evans, a decision of the Victorian Supreme Court (Hayne, J.). A close reading of the judgment in that case reveals that the circumstances were not unlike those considered by Jordan, CJ. in Ex parte Gobbert. 50 A charge was filed with the Registrar of the Magistrates' Court at Heidelberg. The Registrar signed or stamped with a facsimile signature stamp and printed his title on one or more copies of the document against the printed words on the form "issued by (signature) …". A copy of the document was served on Nitz, but the copy served did not indicate that it had been signed by the Registrar and did not indicate that the Registrar's title had been noted on the document. 51 When the matter came before the Magistrates' Court at Heidelberg for mention, counsel announced an appearance under protest on behalf of Nitz contending that the summons had not been served properly. The relevant provision, s.34(1), provided that every summons to answer a charge, except where otherwise expressly enacted "(a) must be served at least 14 days before the mention date; and (b) must be served on the defendant by (i) delivering a true copy of the summons to the defendant personally …". 52 The question in the case was whether, given that what was served on the defendant was not a true copy of the summons that had been issued, the learned magistrate was entitled to proceed to hear and determine the charge. 53 Hayne, J. observed that, when s.34 required the service of a true copy of the summons, it required service of a true copy of the summons that had been issued:- "… it follows in my opinion, that s.34 requires the service of a copy which will show to the defendant that fact of issue. Thus, it requires service of a copy which will show that it has been signed by the issuing authority and what was signed in this case did not." 54 Hayne, J. held that the document served on the defendant was not a summons in accordance with the Act. Further, the appellant at no time waived the defect in service of which he complained. He stated:- "The Act requires that every summons be served and be served in one of two ways … This summons was not served in accordance with the Act. The defendant did not waive the defect. That being so, it follows that the learned Magistrate should not have gone on to hear and determine the charge until the defendant had been properly served as the Act required." 55 It is clear that the central matter at issue in that case was the fact that the defendant had not been served as required by the Act ("must be served on the defendant by … delivering a true copy …) with a copy of the summons as required by statute. In other words, it was not merely a case of irregularity in the manner of service, but rather there had been no compliance with the statutory requirement that a true copy be served in accordance with the legislation. (c) Platz v. Barmby [2002] VSC 531- The provisions as to mode and time for service of process in s.34(1)(a)(ii) of the Magistrates Court Act 1989 (Vic) were mandatory and the magistrate fell into error in proceeding pursuant to s.41(2) where the summons was not served in accordance with s.34 56 The appellants also relied upon the decision of the Supreme Court (Byrne, J.) in Platz v. Barmby. In that case, the appellant, whilst driving her car, was subjected to a blood alcohol test. She was charged with driving with a blood alcohol content in excess of the specified statutory amount. A summons was issued for attendance but was not served within the time specified due to circumstances outlined in the judgment. Neither the appellant nor her lawyer appeared on her behalf on the return date to answer the charges. The magistrate then proceeded to hear and determine them in her absence pursuant to s.41(2) of the Magistrates' Court Act. 57 Byrne, J. stated that s.34(1) prescribed in paragraph (a) the time within which service was to be effected and in paragraph (b) the mode of service. Each commenced with the expression "must be served". He held, following Nitz v. Evans (supra), that the requirements of s.34 were mandatory. He also sought to follow the approach taken in Sinclair v. Magistrates' Court of Victoria at Ringwood [1998] VSC 170 and concluded that the magistrate fell into error in proceeding pursuant to s.43(2) where the summons was not served in accordance with s.34. 58 The decision in Platz (supra) does, in my view, provide some support for the appellants in the present proceedings. The decision in that case did, however, turn on the specific provisions in question which were emphatic in their terms "must be served". I will return to discuss Platz below. Was there a waiver of the requirement under s.63(2)? 59 The Prosecutor contended below and in these appeals that even if the provisions of s.63(2) created a condition precedent to valid service, they were capable of being waived and the appellants did so. It is necessary in this respect to consider whether the lodging of written notices of pleading by the appellants constituted a waiver by each of them. I reproduce the relevant parts of the prescribed form of written notice below:- " Written notice of pleading ( Justices Act 1902 , section 75) Important (please read this before filling in the form) Filling in this form You should get legal advice about this form before you fill it in. Legal advice is important because you need to know if you can use the form and, if so, what effect it has. When you have completed this form, you must sign it in front of a Justice of the Peace (JP) or a legal practitioner. Your local Court House has a JP you can use. Send or take this form to the Court Send or take this form to the Clerk of the Court where your case will be heard. The address of the Court is shown in the summons or attendance notice. When the Court must get this form You must make sure that the Court receives this form at least 5 days before the date of the court hearing shown in the summons or attendance notice. Part 1 Details about your court case Please either attach to this form a copy of the summons or attendance notice (OR) fill in the details below using the information on the summons or attendance notice: Name of defendant (your name): ..................................................... Offence: ..........................................................…………………….. Place of court hearing (name and address of court): ...............…... ..........................................................………………………………… Date of court hearing: ..........................................................……… Part 2 Pleading not guilty Please read and complete this Part if you want to plead not guilty to the offence listed in the summons or attendance notice: My name is: ..........................................................……………….. My address is: ..........................................................…………….. I agree that I am the person named as the defendant in the summons or attendance notice that was served on me for this offence: ..........................................................…………………….. I want to plead not guilty to that offence. I ask the Court to list this matter for hearing on a later date. I will bring this number: .......... of witnesses to the court hearing on that later date. I cannot be at court on these dates during the next 3 months: ..........................................................……………………………….. If the Court needs to speak to me, I may be contacted by telephone on this number: ..........................................................… (Only one of the next 2 statements applies to you. Please cross out the one that does not apply:) The name of the solicitor or barrister representing me at the court hearing is: ..........................................................………………….. I will not have a legal representative at the court hearing." 60 On 3 June 2003, the appellants lodged what is termed a "written notice of pleading". In relation to the form of notice, s.75 of the Justices Act 1902 provided, so far as is relevant, as follows:- "75 Written pleas (1) A defendant who is issued a summons or an attendance notice may lodge with the clerk of a Local Court a notice in writing that the defendant will plead guilty or not guilty to the offence or offences the subject of the information concerned. (2) The notice is to be in the prescribed form and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence. …" 61 The Justices (General) Regulation 2000 prescribed the form to which s.75(2) refers and as set out in paragraph [59]. It will be seen that Form 2 in the Regulation prescribes the form which is divided into three parts, Part 1 entitled "Details about your court case", Part 2 entitled "Pleading not guilty" and Part 3 entitled "Pleading guilty". 62 In determining whether the notices lodged by the appellants constituted a waiver by each of them, it is necessary to refer to the concepts inherent in the doctrine of waiver as they apply in relation to these appeals. 63 In general terms, a right is waived only when the time comes for its exercise. If a party at such point knowingly abstains from exercising it, then a waiver may arise. The question then is whether the content and timing of the two written notices of pleading could be said to constitute or give rise to a waiver by the appellants as to the necessity for compliance with the requirements as to service. 64 On one view, there was no necessity for the appellants to declare their hand on the validity of service until the proceedings were actually listed for hearing before the Local Court. Until then it may be said, with some justification, that there could not have been an abandonment of the irregularity of service point. Waiver involves the concept of the abandonment of a right at an expectant time in the sense that, if a point is to be taken, there is not only an opportune time to do it but there is an appropriate time to do so. Hence, in Commonwealth of Australia v. Verwayen (1990) 170 CLR 394, Dawson, J. spoke of waiver as arising where a party has "failed to insist upon his right at an appropriate time" (p.457). 65 The question may be recast in the following terms: should the appellants, by their conduct in completing and lodging their notices which conveyed their intention to plead not guilty to the charges against them, be thereby found to have been precluded from subsequently raising the validity of service point? Had they, by such conduct, lost or renounced their respective right to do so? 66 In Sargent v. ASL Developments Pty. Limited (1974) 131 CLR 634 at 655, Mason, J. stated that any discussion of the principles governing the circumstances in which a party's words or conduct may preclude him or her from exercising a legal right which he or she possesses is beset with difficulties. In the context of the present case, the issue is, in my opinion, to be resolved by deciding whether the two notices of pleading constituted a renouncement by the appellants of their right to take advantage of the procedural irregularity in the service of the summonses. For that to have occurred as a matter of law their conduct had to be deliberate. Otherwise, an inference of waiver could not be inferred from their conduct: Verwayen (supra) per Toohey, J. at 473. 67 The prescribed form of written notices of pleading are intended to serve a particular purpose, namely, that of providing notice of intention of entering either a plea of guilty or a plea of not guilty. The prescribed form also operates as an acknowledgement or an agreement that the person signing the form is the defendant named in the summons or attendance notice served on that person. In doing so, the notice thereby acknowledges the physical fact of service of the summons or attendance notice. 68 The introductory paragraph to the written prescribed notice of pleading provides advice that legal advice be obtained before the person to whom it relates completes the form, such legal advice, the form records "is important because you need to know if you can use the form and, if so, what effect it has". 69 In oral submissions, Mr. Vasic relied upon the fact that there was no physical appearance/attendance by the appellants before the Local Court. He contended that the first opportunity they had to object to service was at the hearing before the District Court when an objection was made as recorded earlier in this judgment. 70 As the history of the matter reveals, the hearing on 26 September 2003 at Picton Local Court proceeded ex parte. That came about in circumstances explained by the appellants' counsel when addressing Sorby, DCJ. on 2 May 2005 (transcript p.16), namely, the fact that the notice of listing has been sent to the wrong address. Counsel for the Prosecutor did not dispute that fact. I note (at transcript p.23) him stating:- "… They respond to it by return notice of pleading. That caused the court to adjourn proceedings for a defended hearing, that is, relying on the notice of pleading and it was at that defended hearing that the two appellants failed to appear, and I hear my friend say that there was a problem with notice as to that date and I accept what he says …" 71 On this basis, two irregularities in fact occurred at the Local Court level. The first is the irregular service of the summons. The second (which is not a ground of appeal, but is a related fact) is the failure of the appellants to appear at Picton Court not through their own fault or neglect, but by reason of the notice of listing apparently being sent to the wrong address. 72 There was no provision made in the prescribed form of notice of pleading for notice to be given of any question concerning the validity of proceedings (whether of the information, summons or service of the summons). Equally, there is no prescribed form for entering a conditional appearance as a step to contesting the validity of proceedings. 73 In a Local Court, once proceedings are listed for hearing, typically counsel who seeks to challenge the validity of process, will, at the outset of the hearing, do so by making protest or objection to the validity of the information, summons or service: see, for example, Dixon v. Wells (1890) 25 QBD 249 and Nitz v. Evans (supra). The opportunity for the appellants appearing by counsel at the Local Court at Picton and protesting to the validity of service in the present cases never occurred because the notice of listing was apparently sent to the wrong address. Convictions were accordingly entered against them in their absence. 74 I do not consider that the appellants waived their rights to dispute validity of service by lodging the prescribed notices. Those notices, in other words, did not, in my opinion, constitute an unconditional submission to jurisdiction by the appellants. The indication in the notices that the proceedings would be defended by entering not guilty pleas was not, in my view, inconsistent with their right at the commencement of the hearing to dispute validity of service. Certainly their notices of pleading could not, in my opinion, be considered as abandoning their right to do so. The notices were, as earlier indicated, principally intended as a means of providing advance warning as to whether the summonses would be contested or not. The notices could not, either by their express terms or by implication, constitute conduct of the appellants, from which any such waiver could be inferred. It follows that I am unable to accept as valid the Prosecutor's submission that the notices of pleadings constituted unconditional appearances by the appellants. Determination 75 The prosecutor failed to comply with the statutory requirements as to time of service prescribed by s.63(2). Those provisions are not merely procedural in nature but were, in my opinion, prescribed as conditions precedent and upon which validity of service depends. 76 The words in s.63(2) "… may be served by posting" operate as prescribing an alternative mode of service to service as prescribed by s.63(1). The succeeding phrase "… by posting it not less than 28 days before the return date …" are, I consider, emphatic words as to the necessary minimum period for service by post before the return date of the summons. They are in that sense, mandatory, and in my view, in their context, are no less so that the provisions of s.34(1)(a)(ii) considered in Nitz (supra) and Platz (supra), namely "every summons … (a) must be served at least 14 days before the mention date …". 77 The intention and purpose of s.63(2) is to ensure the right of a person to whom a summons is addressed to respond to it within the time prescribed. In that sense, it provides an important procedural safeguard. 78 The question of determining the effect of non-compliance with a statutory requirement is not simply a question of categorisation in terms of the mandatory/directory dichotomy: B v. Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120 per Merkel, J. at 9. As there observed, it is a question of legislative intent to be discerned in the words of the relevant statutory provisions construed in the context of the statute as a whole: Australian Broadcasting Commission v. Redmore Pty. Limited (1989) 166 CLR 454 at 457 per Mason, CJ., Deane and Gaudron, JJ. See also Victoria v. Commonwealth & Connor (1995) 134 CLR 81 at 179 wherein the underlying principle is explained. 79 The legislative objective behind s.63(2) - to ensure due notice of proceedings and the provision of a proper opportunity to respond to a summons - is plainly one of primary importance. To construe the provisions of s.63(2) as mandatory in nature, as I do, clearly supports the attainment of the legislative objective: see generally the discussion of legislative purpose and related issues of statutory construction in Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355, especially at 389-391. 80 There is no provision whereby a court could vary the 28 day minimum period specified in s.63(2). The statutory provisions specify a time for service which the legislature prescribed as the minimum time required. Strict compliance with a requirement that is imperative or mandatory is a precondition to valid action: see Hunter Resources Limited v. Melville (1988) 164 CLR 234 at 241, 245, 248-249, 251, 267-257 and Hamilton v. Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 at 358-361. This, in my opinion, applies equally to validity of service pursuant to such a requirement: see Platz (supra) at [9]. 81 There was, for reasons stated above, no waiver by the appellants of their respective right to dispute validity of service of the summonses by lodging their notices of pleading. 82 The questions of law in the case stated should accordingly be answered:- (a) yes; (b) yes. 83 I accordingly propose the following orders:- (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. 84 SMART, AJ: The background appears in the judgment of Hall J. We have been appraised of additional facts which reveal that the matter has, during its long journey through the Local and District Courts, been the subject of a most unfortunate series of slips. It is not necessary to rehearse these in detail. 85 When Sides DCJ directed that the appeals proceed by way of a hearing de novo, he was using a form of shorthand that is often used when there has been an ex parte hearing before the Magistrate. It would have been understood by all present that each witness before the Magistrate should attend before the District Court, give his evidence in chief again, possibly supplementing what had previously been said, and be cross-examined. The prosecutor may have wished to supplement the evidence below as ex parte proceedings are usually brief. 86 Technically, the judge should have indicated that he would consider making orders under s 18(2) and s 19(1)(b) of the Crimes (Local Courts Appeal and Review) Act consequent upon an application (s 19(2)). That would have tidied up the procedural loose ends. Apparently the parties had arranged for their witnesses to attend the hearing. No practical problem was likely to arise. 87 However, I agree with Hall J that the hearing before the judge was not technically a hearing de novo, but a rehearing on the transcript before the Magistrate supplemented by any additional evidence the judge permitted. 88 The Stated Case contains these findings: (a) Four informations were laid before a Justice against Phillip Di Natale on 28 March 2003 and four summonses were issued for him to appear at Bowral Local Court on 14 April 2003. (b) Four informations were laid before a Justice against Salvatore Di Natale and four summonses were issued for him to appear at Bowral Local Court on 14 April 2003. (c) The summonses were not served and were extended by a Justice and made returnable before Bowral Local Court on 10 June 2003. (d) The summonses were posted to the appellants on 25 May 2003 and received by them through the post on or about that day (e) A form titled "Written Notice of Pleading" was signed by each of the appellants on 3 June 2003 and sent by FAX to the Bowral Local Court on 4 June 2003. (f) The matters were listed for hearing at Picton Local Court on 26 September 2003. There was no appearance by the appellants who were convicted on all 8 counts. 89 The written Notice of Pleading in each case stated that the defendant was pleading not guilty to the offence. It also contained a statement that the summons was served on him. Each defendant asked the Court for a later hearing date. The Notice also stated that the identity of the solicitor or barrister representing the applicant at the hearing was to be advised. 90 When the matters came before the Bowral Local Court on 10 June 2003 they were adjourned to 11 August 2003. The prosecution brief of evidence was served by registered post by letter dated 27 July 2003. That letter and the brief contained no reference to any hearing date of the summonses. When the matters were subsequently mentioned before the Bowral Local Court on 11 August 2003 neither the defendants nor their legal representatives were present and the matter was mentioned by a solicitor on behalf of the prosecution for both parties. The defendants were not notified of the adjourned hearing date at Picton Local Court on 26 September 2003 and the former solicitors for the defendants did not receive the letter which the Court Registry posted notifying those solicitors of the hearing date. Put simply the defendants were not notified of the adjourned hearing date. They did not know when they were required to attend at Court. 91 What the facts reveal is that the summonses were not posted 28 days before the return day, but only about 15/16 days, that the appellants, about 4 June 2003, faxed to the Court a Written Notice of Pleading acknowledging that the summonses were served on them, never appeared before the Bowral Local Court, did not know that the matter was adjourned for hearing to Picton Local Court on 26 September 2003, and did not appear at the adjourned hearing. 92 Section 52 of the Justices Act 1902 (now repealed) provided that an information may be laid before a Justice in any case where any person has committed, or is suspected to have committed an offence or an act in New South Wales for which he is liable, upon summary conviction before a Justice to be punished by fine, imprisonment or otherwise. 93 Section 60 provides that whenever an information is laid before a Justice, he may issue his summons for the appearance of that person. Section 62 specifies the requirements for the summons. Section 63, which deals with the manner of service of the summons, relevantly provided at the material dates: "(1) Subject to this section every summons shall be served by a member of the police force or other person upon the person to whom it is directed by delivering it to him personally or, if he cannot conveniently be met with, by leaving it with some person for him at his last or most usual place of abode. (2) Subject to this section a summons in respect of an information for an offence punishable summarily before a Justice or Justices laid by a member of the police force or a public officer may be served by posting it not less than twenty-eight days before the return date by prepaid letter post addressed to the person to whom it is directed - (a) where that person is a natural person, at his last known place of residence or business; (b) … (c) in either case referred to in paragraphs (a) and (b) - (i) where there is a prescribed address for the person; and (ii) where there are no circumstances making it appear to a court that the prescribed address for that person is not the address referred to in paragraph (a) or, as the case may require, paragraph (b) in relation to that person, at the prescribed address for that person. (2A) In subsection (2) 'public officer' means person acting in an official capacity - … (e) as an officer within the meaning of the Prevention of Cruelty to Animals Act 1979. … (5) The Justice or Justices at the hearing or adjourned hearing of an information … may, notwithstanding service of the summons in the manner provided by subsection (2), order that a further summons in respect of the same offence be served in the manner provided by subsection (1) and may adjourn or further adjourn the hearing to enable that summons to be served in accordance with that order …" 94 The primary mode of service of the summons is personal service upon the defendant. If he cannot conveniently be met with he may be served by leaving it with some person for him at his last or most usual place of abode. 95 Section 63(2) is facultative. It provides an additional method of service, namely service by prepaid post. It specified that if this manner of service is to be employed the summons may be served by posting it not less than 28 days before the return day. That allows for delays in the post and sufficient time for the summons to be returned to the sender, whether a police officer or public officer, if the designated recipient of the summons is not known at the address to which the summons has been posted or has left that address. 96 There are three objectives as to the service of proceedings: (a) adequate notice of the time and day of the hearing of the proceedings being given to the defendant. (b) the defendant being given adequate notice or particulars of the case to be met (c) the defendant being given adequate time to investigate the matter and prepare his defence. 97 If insufficient time has been allowed an adjournment is granted. 98 The legislation may make it a condition precedent to the Magistrate's jurisdiction to hear and dispose of the charge that the summons was posted 28 days before the return day: Dixon v Wells, 24 QBD 249 at 256-257. 99 In Ex Parte Gobbert (1941) 58 WN (NSW) 113 at 114, Jordan CJ with the agreement of Street and Roper JJ, said:- "Where the procedure is by summons it is a condition precedent to the possession of jurisdiction by a magistrate that the defendant should be duly served with a valid summons or if he has not been so served, that he should appear to the charge without objecting to the absence of a summons: Dixon v Wells ; Justices Act s 133." 100 In Exp Walker Re Goodfellow & Anor (1945) 62 WN (NSW), Jordan CJ, with the concurrence of Davidson and Halse Rogers JJ, said at 59-60: "The statement in Ex parte Gobbert that a valid summons is essential to jurisdiction is incorrect as a general proposition or as applicable to the Justices Act 1902 . It is correct only where as in Dixon v Wells some statute, according to its proper construction, prescribed a summons as a condition precedent." 101 Jordan CJ held that there was nothing in the language of the Justices Act which justifies a conclusion that the Act has the effect of making a valid summons or warrant a condition precedent to jurisdiction. Jordan CJ added: "Prima facie procedural provisions do not touch jurisdiction." 102 In Nitz v Evans (unreported, SC (Vic), 7 April 1993), Hayne J considered the provisions of the Magistrates' Court Act 1989 (Vic). Section 34 of that Act provided: "Every summons to answer a charge, except where otherwise expressly enacted (a) must be served at least 14 days before the mention date and (b) must be served on the defendant by (i) delivering a true copy of the summons to the defendant personally or (ii) leaving a true copy of the summons for the defendant at the defendant's last or most usual place of residence or business with a person who apparently resides or works there and who is apparently not less than 16 years of age." 103 The Magistrates' Court General Regulations 1990 Reg 302 provides that the Registrar issues the summons by signing or stamping it with a facsimile signature stamp. The copy summons served on Nitz did not indicate that it had not been signed by the Registrar and the Registrar's title had not been noted on the document. When the matter came on for mention counsel for Nitz announced an appearance under protest. That stance was renewed when the matter came on for hearing: 104 Hayne J said: "Much of the argument on the appeal was couched in terms of whether in the events that had happened the Court below had jurisdiction. In the end I doubt that it is useful to speak in terms of presence or absence of jurisdiction in the Court below: at least without going on to identify the sense in which the expression is used. (See Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369) As I have said, there is no doubt that a criminal proceeding had been validly commenced and a summons had been regularly issued. It may be, then, that analogies can be drawn between the charge and summons on the one hand and the information and process spoken of in R v Hughes (1879) 4 QBD 614) on the other. In that case Hawkins, J said (4 QBD at 625) that: 'The information, which is in the nature of an indictment, of necessity precedes the process; and it is only after the information is laid, that the question as to the particular form and nature of the process can properly arise. Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place (unless under statutory enactment).' The question at issue in the present matter is whether the defects in service were such as to preclude the Court from proceeding to hear and determine the charge. In my view it is not necessary to decide whether the difficulties about service go to the jurisdiction of the Court or go only to the question of whether a 'hearing in the nature of a trial could take place' (to adopt the words of Hawkins, J)". 105 Hayne J held that s 34 was cast in mandatory terms requiring the summons to be served by one of two prescribed methods: 106 Hayne J concluded: "This summons was not served in accordance with the Act. The defendant did not waive the defect. That being so, it follows that the learned magistrate should not have gone on to hear and determine the charge until the defendant had been properly served as the Act requires." 107 The approach of Hayne J in Nitz was followed by Warren J in Sinclair v Magistrates' Court of Victoria at Ringwood & Anor (unreported SC (Vic) 9 December 1998) and by Byrne J in Platz v Barmby (unreported, SC (Vic) 26 November 2002). 108 In the three Victorian decisions considerable weight was placed upon the words in s 34 of the Magistrates' Court Act that the summonses "must be served" and in Nitz the words "a true copy" were also emphasised. The Justices Act, 1902, is not cast in mandatory terms. 109 Under s 75 and 75A of the Justices Act where a defendant does not appear at the time and place appointed by the summons or summonses what has to be proved before the Justice can proceed is "due service … upon [the defendant] a reasonable time before the time appointed for his appearance". The test as to time is a reasonable time before the time appointed for the defendant's appearance. The reference to due service is a reference to one of the methods of service permitted by s 63, that is, personal service, leaving the summonses with some person for the defendant at his last or most usual place of abode, or posting it by prepaid letter post to his last known place of residence or business. In view of the reference to "a reasonable time" it is difficult to contend that it is mandatory to post the summonses 28 days before the return day. 110 I have reached the following conclusions: (a) The laying of the information vested jurisdiction in the Magistrate. (b) Service of the summonses by post without allowing 28 days from the date of posting to the return day is an irregularity, but such failure does not amount to a condition precedent to the jurisdiction of the Magistrate or otherwise prevent the Magistrate from proceeding to hear and determine the matter. (c) The hearing before the District Court is not a hearing de novo but a rehearing on the Local Court transcript, subject to any further evidence adduced by leave or in cross-examination pursuant respectively to leave granted or orders made under ss 18 and 19 of the Crimes (Local Courts Appeal and Review) Act 2001. (d) While the judge did not err in holding that compliance with s 63(2) was neither mandatory nor a condition precedent to the matter proceeding further this is not a case where, in the light of the now known facts, the magistrate should have proceeded to hear and determine the matters on 26 September 2003. The objectives as to good service of the summonses had not been achieved. The convictions should not have been recorded and the penalties imposed were wrongly imposed. I would answer the case stated in the terms set out in this paragraph. ********** 24/08/2006 - Amending to case citation - Paragraph(s) 79 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.