Legal Beagle by Graeme Edgeler

31

Sanctuary!

When you sue someone, you have to serve the first set of documents on them personally - literally hand them to them, or place them down in their presence and clearly bring them to their attention. They have to provide an "address for service" for later documents (usually their lawyer), but for the first set personal service is required, unless you get express agreement (which you often do).

Process serving is something that many young lawyers get to experience. There are times when you need to hire an expert, but a common job for young lawyers, especially in small practices, is to serve proceedings in cases where it won't prove too difficult, and as the tradition is that they get to keep the service fee, it's a nice bonus. Which is nice. I've effected personal service a couple of times. I rang up in advance and made an appointment with both. One was expecting me, and other was away from his office. I read the paper, and a copy of Salient (this one was a staff member at Victoria University), and after spending an hour or so there, returned the following day, during which I walked around the department until I found him (having printed off their photo from the uni website). I don't think they were being difficult, so much as fitting the profile of a stereotypical absent-minded professor.

But, because of parliamentary privilege, service on a member of Parliament can be more diffcult.

In 2003, Race Relations Commissioner Joris de Bres gave a speech in which he compared the European Settlers of New Zealand to the Taliban. Murray McCully took offence, and complained to the Human Rights Commission (of which de Bres was a member) and then to the Human Rights Review Tribunal. As part of that hearing, de Bres claimed that he had a statutory immunity from being taken to the HRRT for what he said as part of his job. Rather than have this complex legal question determined by the Tribunal, de Bres's QC sought to have that legal question decided in advance by the High Court. To do this, the application had be served on McCully, who in his now sadly departed email column, told the story of the young lawyer from local Wellington firm Brandons (don't ask me how I recall this detail because I have no idea), who was tasked with filing and serving the documents. The lawyer went down to McCully's office at Parliament, and although McCully may have been tempted to allow him to serve him in contempt of Parliament, he instead sent the lawyer back from whence he came (there may have been an apology involved), and told him to telephone through, during which a time was arranged for McCully to leave Parliament grounds to be served, which I understand is the usual practice. I understand that the Backbencher is often used, but McCully tells of just going outside the gate in that instance.

Which brings us to Andrew Little and Trevor Mallard, who have recently been sued by Judith Collins in defamation. Collin's solicitor's have apparently written to Little and Mallard asking for their agreement to serve their lawyers, rather than them personally. This is common practice, but as is their right, they are insisting upon personal service. I have never been sued, but as being served is probably the part of it that is the most fun, who can blame them?

The Herald reports:

Mr Little said the minister would need to hire process servers to track him down outside of parliament grounds and issue him with the papers.

And Stuff notes:

Little said if Collins wanted to pursue the matter she would have to arrange a ''process server'' to track down the MPs and physically hand them papers.

''The letter is somewhat threatening. It says having to serve you can be inconvenient because these guys tend to be pretty thuggish kind of characters.''

Papers cannot be served on MPs in Parliament so they would have to be tracked down outside of their workplace.

I would bet quite a lot of money, at quite poor odds, that while the letter might say that personal service can be inconvenient (and it might be somewhat annoying) it will say nothing about thuggish characters, and I wonder whether the transcription of Little's comments could have done with being someone differently punctuated, in order to show that the thuggish character line was Little's interpolation. But I am more interested in the claim than MPs cannot be served legal process in Parliament.

Mostly, because it simply isn't true. There is a limitation, but it's not nearly as extensive as Andrew Little appears to believe. Standing Order 407 lists as example of a contempt of Parliament:

(c) serving legal process or causing legal process to be served within the parliamentary precincts, without the authority of the House or the Speaker, on any day on which the House sits or a committee meets:

The House is currently in recess. And even when the House is sitting, or a committee is meeting, the Speaker can still give permission for service to be effected (he might, for example, allow it on a day when no committee that member is on is sitting, or on Tuesday morning before the House sits, and during which time select committee's rarely meet).

Of course, if some recently graduated lawyer turn up at their office unannounced on a sitting day, with no idea about Parliamentary Privilege they should feel free to make fun of them in an email column, but unless they're planning on being unfindable for next couple of years, it might be better to get it over with. If the case is as likely as they claim to prove embarrassing for the Minister, one might wonder why they don't want to bring it on.

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