LOCAL GOVERNMENT STANDARDS PANEL
Established under section 5.122 of the Local Government Act 1995 (WA)
Complaint Number
SP 6 of 2013
DLG 20130047
Legislation
Local Government Act 1995 (WA)
Complainant
Mr Michael Southwell
Subject of complaint
Local Government
Regulation
Panel Members
Councillor Antonino Pratico
Shire of Bridgetown-Greenbushes
Regulations 11(2) of the Local Government
(Rules of Conduct) Regulations 2007
Mr B Jolly (Presiding Member)
Cr P Kelly (Member)
Mr P Doherty (Deputy Member)
Heard
26 June 2013
(Determined on the documents)
Result
Breaches established
FINDINGS AND REASONS FOR FINDING
DEFAMATION CAUTION
The general law of defamation, as modified by the Defamation Act 2005, applies
to the further release or publication of all or part of this document or its
contents. Accordingly, appropriate caution should be exercised when considering
the further dissemination and the method of retention of this document and its
contents.
1
1.
Summary of the Panel’s Decision
1.1
The Panel found that Cr Pratico committed two breach of regulation
11(1) of the Local Government (Rules of Conduct) Regulations 2007 by
failing to disclose an impartiality interest at:
(a)
an Ordinary Council Meeting of the Shire held on 28 February
2013; and
(b)
a Standing Committee Meeting of the Shire held on 11 April
2013.
2.
Introduction
2.1
In these Reasons unless otherwise indicated:
(a)
a reference to a regulation is a reference to the corresponding
regulation of the Local Government (Rules of Conduct)
Regulations 2007 (Regulations), and a reference to a section is
a reference to the corresponding section of the Local Government
Act 1995 (Act); and
(b)
the term “viewed objectively” means “as viewed by a reasonable
person” (the reference to a reasonable person being a reference
to a hypothetical person with an ordinary degree of reason,
prudence, care, self-control, foresight and intelligence, who
knows the relevant facts).
3.
Jurisdiction
3.1
By written complaint dated 16 April 2013 Mr Michael Southwell
(Complainant) lodged a complaint of a minor breach (being SP 6 of
2013) with the Department of Local Government (Department)
regarding alleged conduct by Shire President Cr Antonino Pratico of the
Shire Bridgetown-Greenbushes (Shire) on 28 February 2013 and 11
April 2013 (Complaint).
3.2
On or about 1 May 2013 the Shire’s Complaints Officer sent the
Complaint to the Local Government Standards Panel (Panel) in
accordance with the requirements of section 5.107 of the Act.
3.3
The Complainant alleges that:
(a)
at an Ordinary Council Meeting of the Shire held on 28 February
2013 (OCM); and
(b)
at a Standing Committee Meeting of the Shire held on 11 April
2013 (SCM);
Cr Pratico failed to disclose a partiality interest in relation to matters
concerning the Yornup Hall (Community) Committee (YHC) and in so
doing committed a breach of regulation 11(2) of the Regulations.
3.4
The Regulations are rules of conduct for the purposes of section 5.104(1)
of the Act.
3.5
A breach of the Regulations is a “minor breach” as defined in section
5.105(1)(a) of the Act.
2
3.6
Pursuant to section 5.110(2) of the Act, the Panel is required to make a
finding as to whether the breach alleged in the Complaint occurred or to
send the Complaint to the Chief Executive Officer of the Department of
Local Government (Department) under section 5.111 of the Act.
3.7
The Panel had been informed by the Department, and so finds that
Cr Pratico:
3.8
(a)
was at the relevant times (i.e. 28 February 2013 and
11 April 2013) and remains currently, an elected member of the
Council of the Shire (Council); and
(b)
satisfies the requirements of being an elected member of the
Council as:
(i)
he is qualified to be an elector of the district under
section 2.19(1)(b) of the Act;
(ii)
there is no evidence to indicate that he is disqualified for
Council membership under sections 2.21, 2.22, 2.23 or
2.24 of the Act; and
(iii)
he is not disqualified from continuing his membership of
the Council under section 2.25 of the Act.
The Panel also finds that:
(a)
the Complaint is made in writing in the form approved by the
Minister pursuant to section 5.107(2) of the Act;
(b)
the Complaint was sent to the Complaints Officer of the Shire
within two years after the breaches alleged in the Complaints
occurred, as required by section 5.107(4) of the Act;
(c)
the Complaint is not one that ought to be sent to the Chief
Executive Officer of the Department under section 5.111 of the
Act; and
(d)
it has jurisdiction to determine whether the breach alleged in
the Complaint occurred.
4.
Legislative background
4.1
The Regulations include the following regulations:
“11(1) In this regulation —
“interest” means an interest that could, or could
reasonably be perceived to, adversely affect the
impartiality of the person having the interest and includes
an interest arising from kinship, friendship or
membership of an association.
(2)
A person who is a council member and who has an
interest in any matter to be discussed at a council or
committee meeting attended by the member must disclose
the nature of the interest —
(a) in a written notice given to the CEO before the
meeting; or
3
(b) at the meeting immediately before the matter is
discussed.
(3)
Subregulation (2) does not apply to an interest referred to
in section 5.60 of the Act.
(4)
Subregulation (2) does not apply if —
(a) a person who is a council member fails to disclose an
interest because the person did not know he or she
had an interest in the matter; or
(b) a person who is a council member fails to disclose an
interest because the person did not know the matter
in which he or she had an interest would be
discussed at the meeting and the person disclosed the
interest as soon as possible after the discussion
began.
(5)
If, under subregulation (2)(a), a person who is a council
member discloses an interest in a written notice given to
the CEO before a meeting then —
(a) before the meeting the CEO is to cause the notice to
be given to the person who is to preside at the
meeting; and
(b) at the meeting the person presiding is to bring the
notice and its contents to the attention of the persons
present immediately before a matter to which the
disclosure relates is discussed.
(6)
If —
(a) under subregulation (2)(b) or (4)(b) a person’s interest
in a matter is disclosed at a meeting; or
(b) under subregulation (5)(b) notice of a person’s interest
in a matter is brought to the attention of the persons
present at a meeting,
the nature of the interest is to be recorded in the minutes
of the meeting.”
5.
The Panel’s Role
5.1
The Panel observes that:
(a)
clause 8(6) of Schedule 5.1 of the Act requires the Panel’s
members to have regard to the general interests of local
government in Western Australia;
(b)
a finding of a minor breach is a serious matter as it may affect
an individual both personally and professionally;
(c)
by section 5.106 of the Act, in order for the Panel to make a
finding that a minor breach has been committed by a council
member, the finding is to be “based on evidence from which it
may be concluded that it is more likely that the breach occurred
than that it did not occur”;
4
(d)
when making this determination:
(i)
the seriousness of an allegation made, the inherent
unlikelihood of an occurrence of a given description, or
the gravity of the consequences flowing from a particular
finding are considerations which must affect the answer
to the question whether the issue has been proved to the
reasonable satisfaction of the [determining body]”, such
as the Panel: Briginshaw v Briginshaw (1938) 60 CLR 336
per Dixon J in at 362; and
(ii)
where direct proof is not available, it is enough if the
circumstances appearing in evidence give rise to a
reasonable and definite inference: they must do more
than give rise to conflicting inferences of equal degrees of
probability so that the choice between them is mere
matter of conjecture. But if circumstances are proved in
which it is reasonable to find a balance of probabilities in
favour of the conclusion sought then, though the
conclusion may fall short of certainty, it is not to be
regarded as a mere conjecture or surmise: Bradshaw v
McEwans Pty Ltd (1951) 217 ALR 1 at 5.
6.
Background – the claimed “interest”
6.1
It is not disputed that at 28 February 2013 and 11 April 2013:
(a)
Cr Pratico was a member of the Yornup Hall Management
Committee (Management Committee) and was appointed to
that committee by the Shire;
(b)
the Management Committee is a committee of Council formed
under Section 5.9(2) of the Act;
(c)
the Management Committee is comprised of two councillors
appointed by the Shire and four members of the public; and
(d)
Cr Pratico, in a private capacity, was also member of the YHC, a
community based and not-for-profit committee which is
comprised of users of the Yornup Hall (Yornup Hall).
7.
The Complaint
7.1
The Complaint alleges that:
(a)
at the OCM:
(i)
Item C.02/0213 was considered by the Council (Item);
(ii)
the Item concerned the future management of Yornup Hall;
(iii)
the Officer’s Recommendation in relation to the Item was
“that Council request the CEO to investigate and report
back to the April 2013 Standing Committee meeting on the
possibility of leasing the Yornup Hall to the [YHC] and
consequential disbanding of the [Management Committee]”
(Recommendation);
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(b)
(iv)
the Council (including Cr Pratico) unanimously resolved in
terms of the Recommendation with Cr Pratico seconding
the motion to do so; and
(v)
Cr Pratico did not declare an interest in the Item prior to
voting on the same;
at the SCM:
(i)
Item SC.05/0413 was considered by the
Committee, which included Cr Pratico (Item 2);
(ii)
Item 2 concerned a proposed lease to the YHC;
(iii)
the Officer’s Recommendation in relation to Item 2
included doing all that was required to enable Yornup Hall
(and an adjoining oval) to be leased to the YHC and
endorsing the terms of a proposed draft lease (Draft Lease)
to the YHC (Second Recommendation);
(iv)
the
Standing
Committee
(including
unanimously
resolved in
terms of
Recommendation, as amended1; and
(v)
Cr
the
Standing
Pratico)
Second
Cr Pratico did not declare an interest in Item 2 prior to
voting on the same;
(c)
Cr Pratico had an “interest” in the Item and the Second Item
within the meaning regulation 11(1) of the Regulations, in that
when those items were considered he was a member of the YHC;
and
(d)
Cr Pratico’s failure to disclose that interest constituted a breach
of regulation 11(2) of the Regulations.
8.
The Response
8.1
The Department sent a copy of the Complaint (along with a “Complaint
Summary” prepared by the Department) to Councillor Pratico by letter
dated 24 May 2012 and invited him to respond to the same.
8.2
Cr Pratico responded to the allegations by way on an undated Elected
member’s Response (Response) which was received by the Department
on 5 June 2013.
8.3
In the Response, Councillor Pratico accepted the information detailed in
the Complaint Summary and stated as follows in response to the
question “[d]o you accept that you committed the alleged minor breach
as detailed in the Complaint Summary?”:
1
The amendment added the following to paragraph 3 of the Second Recommendation:
“subject to the lease being changed from a 10 year term (sic to) that of a 10 year
term with the Lessee having an option in 2023 to extend the lease for an
additional 10 year term”;
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“As a Council appointed member of the [Management
Committee] I attend these meetings and bring back to Council
matters requiring a Council decision. I have always been of the
understanding that as member of this Committee (a Council
Committee) I am not obliged to declare an impartiality interest
as my role on the Management Committee is to be Council’s
representative on the Committee and report back to Council.
I had assumed this would also apply to the [YHC].
I do note that simply being a member of a community
committee, sporting organisation or the like is not deemed to be
a relationship with “closely associated persons” as defined under
Section 5.62 of the Local Government Act. I also note that
under Section 5.63 of the Local Government Act an interest need
not be disclosed if the interest arises only because the relevant
person is or intends to become a member or office bearer of a
body with non-profit making objects. The [YHC] is such a body.
Please note I am not an office bearer of the [YHC], I am simply a
member. Membership is open to any interested user of the
Yornup Hall at an annual membership of $2.00.
My
understanding is that the Committee is currently undertaking a
review of membership with account last year indicating
membership was in excess of 100.
Up until recently the [YHC] has worked closely with the
[Management Committee] in that the bank account for the hall
was maintained by the [YHC] but the authority to spend a good
proportion of those funds (revenue from hall hire) was with the
Council appointed [Management Committee]. Again due to this
close relationship between the committees I was of the view that
an interest didn’t exist.”
9.
The Documents
9.1
Save for the information provided to the Panel by the Department (as set
out under the heading “Jurisdiction” above) the Panel determined the
Complaint on the papers after considering the Complaint and the
Response as well as the minutes of the OCM2 and the SCM3.
10.
Elements of the offence and determination
10.1
The essential elements or issues of a breach of regulation 11(2) of the
Regulations are that it is more likely than not that:
(a)
2
3
a person who is a current council member;
Available from:
http://www.bridgetown.wa.gov.au/search?SearchableText=28.2.13
Available from:
http://www.bridgetown.wa.gov.au/publications/standingminutes/scminutes201
3/scm11042013/view?searchterm=11.4.13
7
(b)
had a private or personal interest (being a non-pecuniary
conflict of interest, or a real or apparent bias) that could
reasonably be perceived to adversely affect the person’s
impartiality on a matter – noting that such a private or personal
interest includes any such interest that flows or arises from
kinship, friendship or membership of an association, but
excludes an interest referred to in section 5.60 of the Act;
(c)
that matter was discussed at a council or committee meeting
attended by the council member; and
(d)
the council member did not disclose the nature of his or her said
private or personal interest in either of the ways required by
regulation 11(2)(a) or 11(2)(b) of the Regulations.
11.
Findings
11.1
In the Response Cr Pratico referred to sections 5.62 and 5.63 of the Act,
but the Panel does not understand him to be contending that those
provisions were relevant to the Complaint.
11.2
In any event, those provision are not relevant to the Complaint because:
11.3
(a)
the operation of section 5.63(1) of the Act is confined to sections
5.65, 5.70 and 5.71 of the Act; and
(b)
section 5.63 does not qualify the operation of section 5.105 of
the Act or regulation 11(2) of the Regulations.
The Panel has considered the available evidence and applied the
Briginshaw4 principles and is satisfied that it is more likely than it is not
that:
(a)
as at 28 February 2013 and 11 April 2013 Cr Pratico was a
member of the Council, and remains currently a member of the
Council;
(b)
each of the matters set out in paragraphs 7.1 (a), (b) and (d)
have been established; and
(c)
neither prior to, not during, either the OCM or the SCM did Cr
Pratico disclose an interest pursuant to regulation 11 of the
Regulations;
and that each of the elements set out in subparagraph 10.1 (a), (c) and
(d) have been established.
11.4
The remaining issue is whether Cr Pratico’s membership of the YHC was
an “interest” that he ought to have disclosed at or before both the OCM
and the SCM pursuant to regulation 11(2) of the Regulations.
11.5
Regulation 11(2) of the Regulations requires the disclosure of an
“interest”.
4
Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J in at 362.
8
11.6
Regulation 11(1) of the Regulations defines an “interest” as meaning “an
interest that could, or could reasonably be perceived to, adversely affect
the impartiality of the person having the interest and includes an
interest arising from kinship, friendship or membership of an
association”.
11.7
In Bradley and Local Government Standards Panel [2012] WASAT 44
(Bradley) at paragraph [42] Member McNab found that an allegation
that a council member has committed a breach of regulation 11(2) of the
Regulations “is an allegation of undeclared conflict or bias (apparent or
real) clouding the exercise of public duty”.
11.8
Determining whether a conflict of interest exists, requires an analysis as
to the relationship, as reasonably perceived, between the interest and
the decision to be made: McGovern and Another v Ku-Ring-Gai Council
and Another [2008] 72 NSWLR 404 at [26].
11.9
Determining whether bias exists involves a consideration of the extent to
which the decision maker brought a closed mind to the decision to be
made: McGovern and Another v Ku-Ring-Gai Council and Another [2008]
72 NSWLR 404 at [26].
11.10
The Panel finds that when viewed objectively, in the context of the facts
found by the Panel, that both the Item and Item 2:
(a)
related to the future management and control of the Yornup Hall
and the income derived from that source;
(b)
involved considering whether to lease Yornup Hall to the YHC,
and the terms of any such lease;
and by virtue of Cr Pratico’s membership of the Council and the
Standing Committee (on the one hand) and the YHC (on the other) he
had a personal or private interest that could, or could reasonably be
perceived to, adversely affect his impartiality when determining the
matter and that this was therefore an interest that he was obliged to
have disclosed pursuant to Regulation 11(2) of the Regulations.
11.11
For the above reasons, the Panel finds that Cr Pratico committed two
breaches of regulation 11(2) of the Regulations.
Brad Jolly (Presiding Member)
Paul Kelly (Member)
Peter Doherty (Deputy Member)
9
LOCAL GOVERNMENT STANDARDS PANEL
Established under section 5.122 of the Local Government Act 1995 (WA)
Complaint Number
SP 6 of 2013
DLG 20130047
Legislation
Local Government Act 1995 (WA)
Complainant
Mr Michael Southwell
Subject of complaint
Local Government
Regulation
Panel Members
Councillor Antonino Pratico
Shire of Bridgetown-Greenbushes
Regulations 11(2) of the Local
Government (Rules of Conduct)
Regulations 2007
Mr B Jolly (Presiding Member)
Cr P Kelly (Member)
Mr P Doherty (Deputy Member)
Heard
3 October 2013
(Determined on the documents)
Outcome
Complaint dismissed
DECISION AND REASONS FOR DECISION
SANCTIONS
DEFAMATION CAUTION
The general law of defamation, as modified by the Defamation Act 2005, applies
to the further release or publication of all or part of this document or its
contents. Accordingly, appropriate caution should be exercised when considering
the further dissemination and the method of retention of this document and its
contents.
10
12.
Definitions
12.1
In these Reasons, unless otherwise indicated:
(a)
a reference to a section is a reference to the corresponding
section in the Local Government Act 1995 (WA), and a reference
to a regulation is a reference to the corresponding regulation in
the Local Government (Rules of Conduct) Regulations 2007
(Regulations); and
(b)
words appearing in bold in the Panel’s Finding and Reasons for
Finding in these matters (Breach Findings) bear the same
meaning in these Reasons.
13.
Summary of Breach Findings
13.1
The Panel has made two findings of minor breach in relation to the
Complaint – namely that it is more likely than it is not that Cr Pratico
committed breaches of regulation 11(2) of the Regulations by failing to
disclose an impartiality interest at:
(a)
an Ordinary Council Meeting of the Shire held on 28 February
2013; and
(b)
a Standing Committee Meeting of the Shire held on 11 April
2013.
(Minor Breaches)
14.
Summary of Decision
14.1
The Panel considered how the Minor Breaches are to be dealt with under
section 5.110(6) of the Act and concluded, for the following reasons, that
the Complaint should be dismissed pursuant to subsection (a) of that
section.
15.
Procedural fairness
15.1
The Panel gave to Cr Pratico:
(a)
notice of the Minor Breaches (Notice);
(b)
a copy of the Breach Findings; and
(c)
a reasonable opportunity for him to make submissions about
how the Minor Breaches should be dealt with under section
5.110(6) of the Act.
16.
Cr Pratico’s response and submissions
16.1
Cr Pratico responded to the Panel by an undated letter in which he did
not dispute having committed the Minor Breaches and asked that the
Panel give consideration to dismissing the Complaints, or ordering
training in lieu of the other options available to the Panel as he believed
‘that participation in any training session would only improve [his]
ability to perform the duties as a Local Councillor’.
17.
Panel’s views
17.1
Section 5.110(6) of the Act specifies the sanctions that may be imposed
by the Panel for the Minor Breaches. The Panel may:
(a)
dismiss the complaint;
(b)
order that —
11
(i)
the person against whom the complaint was made be
publicly censured as specified in the order;
(ii)
the person against whom the complaint was made
apologise publicly as specified in the order; or
(iii)
the person against whom the complaint was made
undertake training as specified in the order;
or
(c)
17.2
order 2 or more of the sanctions described in paragraph (b).
In considering an appropriate sanction or sanctions for the Minor
Breaches the Panel notes that Cr Pratico has not previously been found
to have beached the Regulations.
Principles
17.3
A public censure of the kind ordered by the Panel is a significant
sanction. It involves a high degree of public admonition of the conduct of
the council member concerned.5 While a public censure has that
character or effect it is aimed at reformation of the offending council
member and prevention of further offending acts.
17.4
A breach of regulation 11 of the Regulations is a serious matter and will
often deserve the sanction of a public censure – not only as a reprimand
aimed at reformation of the offending council member but as a deterrent
to others from committing like offending acts.
17.5
A public apology of the kind ordered by the Panel is also a significant
sanction, as it involves a high degree of public admonition of the
conduct of the council member concerned.
17.6
The circumstances that will in almost all occasions deserve the sanction
of a public apology to another person include those where a council
member’s offending conduct is or conveys a slight or a personal attack
on the other person, particularly where the other person is an employee
of the council member’s local government.
17.7
The circumstances in which it may be appropriate for the Panel to order
that the council member concerned undertake training include where
the type of training is reasonably available for the member to undertake,
and the member communicates to the Panel:
(a)
his or her acknowledgement that he or she has committed the
minor breach found by the Panel to more likely than not have
occurred, and his or her willingness to undertake training; or
(b)
his or her acknowledgement that he or she has committed the
minor breach found by the Panel to more likely than not have
occurred, but that such breach occurred through his or her lack
of knowledge or education on the issue or issues concerned; or
Mazza and Local Government Standards Panel [2009] WASAT 165 per Judge J
Pritchard (Deputy President) as her Honour then was, at [107].
5
12
(c)
the member communicates to the Panel his or her remorse or
contrition for his or her offending conduct in committing the
minor breach found by the Panel to more likely than not have
occurred, and the Panel’s view is that training may be of use to
the member so as to not repeat his or her offending conduct.
17.8
In the present case, the Panel considers that the Minor Breaches fall
towards the lower end of seriousness as far as breaches of the
Regulations are concerned.
17.9
The Panel also observes that:
17.10
(a)
as a Council appointed member of the Management Committee
of Yornup Hall, Cr Pratico said that he understood that he was
not obliged to declare that membership as an impartiality
interest at Council meetings when matters related to Yornup
Hall were discussed (presumably on the basis that such
membership could not reasonably be perceived to adversely
affect his impartiality, or the Council, having appointed him to
that committee, must be taken to have known that);
(b)
Cr Pratico said (and the Panel accepts) that he mistakenly
believed that the same position prevailed in relation to his
membership of the YHC;
(c)
Cr Pratico was not an office-bearer of the YHC and was, along
with other members of the public, simply a member of the YHC;
and
(d)
through the Breach Findings Cr Pratico has effectively received
instruction as to the obligations imposed by regulation 11 of the
Regulations.
In these circumstances, the Panel determines that:
(a)
as neither of the Minor Breaches involved a slight or personal
attack on another person, a public apology is not an appropriate
sanction for the Minor Breaches;
(b)
as the Minor Breaches fall towards the lower end of seriousness
as far as breaches of the Regulations are concerned, the
admonition of a public censure is not an appropriate sanction
for the Minor Breaches; and
(c)
as Cr Pratico has effectively received instruction as to the
obligations imposed by regulation 11 of the Regulations, and the
Panel is presently unaware of any training that is available that
would significantly advance this training, further training is
neither a necessary nor appropriate sanction for the Minor
Breaches;
(d)
the Breach Findings themselves will be sufficient to deter (a) Cr
Pratico from committing further breaches of the Regulations and
(b) others from committing like offending acts; and
(e)
the Complaint in relation to the Minor Breaches be dismissed.
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18.
Panel decision
18.1
Having regard to the Breach Findings, the matters mentioned in
paragraphs 5 and 6 above, and the general interests of local government
in Western Australia, the Panel’s decision on how the Minor Breaches
are to be dealt with under section 5.110(6) of the Act, is that the
Complaint in relation to the Minor Breaches be dismissed pursuant to
subsection (a) of that section.
Brad Jolly (Presiding Member)
Paul Kelly (Member)
Peter Doherty (Deputy Member)
14
NOTICE TO THE PARTIES TO THE COMPLAINT
RIGHT TO HAVE PANEL DECISION REVIEWED BY THE STATE
ADMINISTRATIVE TRIBUNAL
The Local Government Standards Panel (Panel) hereby gives notice that:
(1)
Under section 5.125 of the Local Government Act 1995 the person making
a complaint and the person complained about each have the right to
apply to the State Administrative Tribunal (the SAT) for a review of
the Panel’s decision in this matter. In this context, the term “decision”
means a decision to dismiss the complaint or to make an order.
(2)
By rule 9(a) of the State Administrative Tribunal Rules 2004, subject to
those rules an application to the SAT under its review jurisdiction
must be made within 28 days of the day on which the Panel (as the
decision-maker) gives a notice [see the Note below] under the State
Administrative Tribunal Act 2004 (SAT Act), section 20(1).
(3)
The Panel’s Breach Findings and these Findings and Reasons for
Finding – Sanctions, constitute the Panel’s notice (i.e. the decisionmaker’s notice) given under the SAT Act, section 20(1).
Note:
(1)
This document may be given to a person in any of the ways provided for by sections 75 and
76 of the Interpretation Act 1984. [see s. 9.50 of the Local Government Act 1995]
(2)
Subsections 75(1) and (2) of the Interpretation Act 1984 read:
(3)
“(1)
Where a written law authorises or requires a document to be served by post, whether
the word “serve” or any of the words “give”, “deliver”, or “send” or any other similar
word or expression is used, service shall be deemed to be effected by properly
addressing and posting (by pre-paid post) the document as a letter to the last known
address of the person to be served, and, unless the contrary is proved, to have
been effected at the time when the letter would have been delivered in the
ordinary course of post. [Bold emphases added]
(2)
Where a written law authorises or requires a document to be served by registered post,
whether the word “serve” or any of the words “give”, “deliver”, or “send” or any other
similar word or expression is used, then, if the document is eligible and acceptable for
transmission as certified mail, the service of the document may be effected either by
registered post or by certified mail.”
Section 76 of the Interpretation Act 1984 reads:
“Where a written law authorises or requires a document to be served, whether the word
“serve” or any of the words “give”, “deliver”, or “send” or any other similar word or
expression is used, without directing it to be served in a particular manner, service of that
document may be effected on the person to be served —
(a)
by delivering the document to him personally; or
(b)
by post in accordance with section 75(1); or
(c)
by leaving it for him at his usual or last known place of abode, or if he is a principal of a
business, at his usual or last known place of business; or
(d)
in the case of a corporation or of an association of persons (whether incorporated or
not), by delivering or leaving the document or posting it as a letter, addressed in each
case to the corporation or association, at its principal place of business or principal
office in the State.”
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