Council prosecutions: a ‘how to’ guide for serving defendants

One of the core functions of local authorities is prosecuting and enforcing non-compliance with regulatory requirements, such as breaches of the Building Act and/or the Resource Management Act, and under the Dog Control Act.

Once a charge has been laid in the District Court, a defendant needs to be served with the charge, and summonsed. Before the prosecution can proceed, the Court will need to be satisfied that a defendant has been “served”, with the relevant documents, so that the defendant is properly notified of the charge they are facing. The responsibility of serving the defendant is on the Council, as prosecutor.

Rule 2.5 of the Criminal Procedure Rules 2012 sets out how a defendant may be served. Either documents may be served on a defendant by personal service, by sending it to their address for service, or (in the event no address has been provided) by sending it their last known postal address or place or residence or business, or by leaving it with a family member over the age of 18, or by any other method agreed by the parties or approved by the Court or a Registrar.

Usually service is pretty straight forward, and a person, or their lawyer, will accept service. But sometimes it is not.

What if a person runs away every time a process server gets near? What if a person cannot be found? What if a person denies being the defendant (even though they are)? What if a person has no known abode? Sometimes defendants will try to avoid service, to try to prevent or stall a prosecution. These are all situations that we have faced in prosecuting for councils around the country. So, what to do? Surely Joe Bloggs can’t avoid being prosecuted for a serious breach of the RMA, just because he keeps running away from the Council’s process server?

We do not recommend the approach taken by Olivia Wilde’s ex-husband who waited until she was performing on stage in a live event, before serving her with divorce papers…!

But, if the usual means of service have been unsuccessful, thankfully, there are other options to effect service. One option is to apply to the Court for substituted service, being an order for service by another means. This can include service by email, by social media such as through Facebook. Another option may be to serve it on a defendant’s landlord. The Courts have discretion to approve other methods of service.

The Court will want to see proof that the Council has taken reasonable steps to try to effect service. An affidavit of service from the process server setting out a clear record of service attempts is often the best way to demonstrate this.

Councils have important regulatory functions in ensuring compliance with various statutes and upholding and maintaining public, building and environmental standards and safety. Rest assured, even with the most difficult of defendants, there is always a way to satisfy the Court that reasonable attempts to affect service have been made, and that a defendant can’t avoid justice by just running away.


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