At a hearing before a magistrate, the foreign corporate respondent contended it had not been properly served with a complaint and summons under the Justices Act 1886, and that as a result, the magistrate did not have the power to proceed upon the complaint. After the magistrate ruled that the respondent had been served inter alia by virtue of its knowledge of the complaint, the respondent sought judicial review. On review the primary judge found that service in accordance with s 56(1) Justices Act had not taken place, and that service under that section was a pre-condition of the power of the magistrate to proceed. The appellant appealed to the Court of Appeal. Fraser JA (Philippides JA and Douglas J agreeing) allowed the appeal, finding that the Justices Act empowered the magistrate to proceed upon a complaint and summons charging a corporation with an indictable offence where service in accordance with s 56(1) of the Act took place, or where the respondent was afforded procedural fairness by virtue of its having knowledge of the content of those documents.
Fraser and Philippides JJA and Douglas J
27 August 2019
The appellant made a complaint under the Justices Act 1886 (“Justices Act”) that the respondent, a foreign corporation, committed an indictable offence under the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) (“POTS Act”) because it owned a ship that discharged oil into Australian waters. –, . A copy of the complaint and a summons requiring the respondent to appear at a committal hearing were delivered to the offices of Thynne + Maccartney (“T+M”), who were associated with the ship’s insurance club, and Monson, a shipping agent located in Western Australia that had formerly acted for the ship. , –.
T+M returned the documents on the footing that they did not have instructions to accept service for the respondent, and were not “agents of the ship” for the purpose of service under s 29A POTS Act. . Counsel instructed by T+M later appeared conditionally before a magistrate to argue that the respondent had not been properly served with the complaint and summons under the Justices Act or the POTS Act, and that the magistrate therefore had no power to proceed upon the complaint. , –. After the magistrate ruled that the respondent had been served both because it was aware of the documents and because T+M and Monson were agents of the ship under s 29A POTS Act, the respondent sought judicial review. –, .
On review, the primary judge found that the respondent’s knowledge did not constitute service in accordance with the Justices Act and that T+M and Monson were not agents of the ship for the purpose of service under the POTS Act. –, , . The primary judge further held that service of the complaint and summons was a pre-condition of the power to conduct an examination of witnesses under the Justices Act, such that the magistrate had no power to proceed upon the complaint. . The appellant appealed the primary judge’s decision to the Court of Appeal. .
The power to conduct an examination of witnesses under the Justices Act
Fraser JA observed that no construction of the relevant provisions of the Justices Act was completely reconcilable with their text, and noted that particular provisions of the Act that were concerned with procedure in relation to an indictable offence were inapt in the case of a corporate defendant. –. His Honour also highlighted that no provision of the Justices Act expressly made service in accordance with s 56(1) of the Act a pre-condition of the power of justices to conduct committal hearing in relation to a complaint that a corporate defendant had committed an indictable offence. .
The purpose of service of a complaint and summons under the Justices Act was to afford a defendant with procedural fairness in respect of the complaint. –. Fraser JA explained that while cases such as Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 considered different legislation, they concerned broadly similar circumstances relating to procedural fairness and statutory jurisdiction, and were illustrative of how the purpose of a provision may influence its construction. –.
In that context, his Honour concluded that s 56(1) Justices Act did not require a summons upon a complaint of an indictable offence by a corporation to be “properly served” in one of the ways described in s 56(1)(b). . Instead, justices were empowered to proceed upon a complaint of an indictable offence by a corporate defendant where the complaint and summons were served in a way described in s 56(1)(b), or where procedural fairness was afforded to the defendant because it had acquired knowledge of the content of the documents in some other way. .
In the result, Fraser JA (Philippides JA and Douglas J agreeing) allowed the appeal; set aside the orders made by the primary judge, and ordered that the respondent pay the appellant’s costs. –.