In this matter Davis J considered whether service of a summons was a precondition to the exercise of power by the Magistrates Court to proceed on a complaint made under the Justices Act 1886. The complaints alleged that the applicant, the owner of the ship, had committed offences against s 9(1B) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) when oil was discharged from its ship. Davis J also considered whether the lawyers acting for the applicant were the “agent of the ship” within the meaning of the Act.
14 June 2018
In August 2017, the first respondent, a stipendiary magistrate, made a ruling in relation to complaints made under the Justices Act 1886. . It was alleged, on charges by the second respondent, that the applicant had committed offences against s 9(1B) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) (the “POTS Act”), when oil was discharged from a ship into the exclusive economic zone and the outer territorial sea. . The charges alleged that the applicant was, at the relevant time, the owner of the ship “Regina”. .
The applicant argued before the first respondent that the summons issued on the complaint had not been served and therefore that the Magistrates Court did not have jurisdiction to hear an examination of witnesses in relation to the offences. . The first respondent rejected this argument and ruled against the applicant. . The applicant challenged the ruling. .
The Regina arrived in Australia in June 2011. . At that time, the ship’s owner was the applicant, and Monson Agencies Bunbury (“Monson”) was the local ship’s agent for the ship. . In July 2015, the ship passed through waters near the east coast of Australia on its way to New Zealand. . It was alleged that, at that time, the applicant was the ship’s owner. . Further, it was during this journey that the ship allegedly discharged oil into the exclusive zone and the outer territorial sea. .
During the course of the investigation into the alleged oil spill, Maritime Safety Queensland wrote to Thynne & Macartney, who were the solicitors acting for the applicant. . Thynne & Macartney confirmed they had instructions on behalf of the owners of the ship. . The matter was subsequently referred to the Commonwealth Director of Public Prosecutions (the “CDPP”). . The CDPP then purported to serve the applicant by serving Thynne & Macartney, and Monson with the complaint and summons. . Thynne & Macartney advised:
“We do not hold any instructions to accept service of the charges against the defendants and our firm is also not an agent of the ship as contemplated by the Protection of the Sea (Prevention of Pollution from Ships) Act 1983. We therefore return each Complaint and Summons to you.” .
The issue of the validity of service of the complaint and summons against the applicant was heard by the second respondent, who held that service had been effected and therefore that the Magistrate’s Court had jurisdiction. .
In the applicant’s challenge to this ruling before Davis J, three issues arose for consideration, each dealt with under the headings below.
Was service of the summons a precondition to the exercise of power?
The first issue was whether service was a mandatory precondition to the Magistrates Court proceeding to hear the examination of witnesses. . After having considered the text and context of the Justices Act, Davis J held that “[i]t is clear from the Justices Act considered as a whole that where a complainant relies upon a summons to bring a defendant to court (as opposed to arrest, or notice to appear) the summons must be served”. . The mere fact that Thynne & Macartney had appeared at the Magistrates Court, therefore, did not waive the right to proper service. .
Was Thynne & Macartney “the agent of the ship”?
The second issue was whether Thynne & Macartney were “the agent of the ship” for the purpose of s 29A of the POTS Act. . That section provides that documents to be served on the owner of a ship in respect of an offence against the POTS Act “may be served on the agent of the ship instead”. .
Davis J strongly suspected that the term “agent of the ship” had a meaning in the maritime industry gained from common usage, however accepted that its meaning must be discerned from a consideration of the statutory text in context. . Nonetheless, after considering that context, his Honour concluded that the term “agent of the ship” must mean “a person who has authority in relation to the ship” and that the section contemplates, “at least, the classic shipping agent, namely an agent of the owner within the jurisdiction making arrangements to accommodate and manage the ship on its voyage through Australian ports”. , .
Davis J noted that Thynne & Macartney were “not shipping agents and played no part in the management of the ship in 2015 when the ship passed through Australian waters or when it berthed in Australia in 2011”. . Thynne & Macartney’s involvement as lawyers representing the applicant in connection with criminal allegations did not render the firm as “the agent of the ship”. .
Was Monson “the agent of the ship”?
As noted above, Monson was the agent of the ship in 2011. . However, as Davis J explained, the issue was when a shipping agent ceases to be the “agent of the ship”. . His Honour accepted that it would defeat the purpose of s 29A of the POTS Act if the agency relationship could be determined as soon as the ship leaves Australian waters. . However, his Honour rejected the submission that if Monson was “the agent of the ship” for a voyage in 2011, then it was the “agent of the ship” for all subsequent voyages. . There was no evidence that Monson was the agent of the ship at the time of the oil spill in 2015 or at the time of the service of the complaint and summons. . Accordingly, insofar as service of the complaint and summons was concerned, Monson was not “the agent of the ship”. .