Commissioner of the Australian Federal Police v Ying
[2016] VSC 556
•10 October 2016
| Not Restricted |
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 02407
IN THE MATTER of the Proceeds of Crime Act 2002 (Cth)
BETWEEN
| THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Applicant |
| v | |
| LANG TAO YING | Respondent |
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JUDGE: | Zammit J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 August 2016 |
DATE OF RULING: | 10 October 2016 |
CASE MAY BE CITED AS: | Commissioner of the Australian Federal Police v Ying |
MEDIUM NEUTRAL CITATION: | [2016] VSC 556 (First Revision 8 November 2016) |
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PROCEDURE —Proceed of Crimes Act 2002 (Cth) ss 180, 182, 183 — Postal service of s 180 examination notice — Acts Interpretation Act 1901 (Cth) ss 1A, 2, 15AA, 15AB, 28A —Whether Judiciary Act 1903 (Cth) s 79(1) ‘picks up’ Supreme Court (Criminal Procedure) Rules 2008
r 6.04(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | T Gyorffy QC Simon McGregor | |
| For the Respondent | Ex parte |
HER HONOUR:
Introduction
The Commissioner for the Australian Federal Police (‘the Applicant’) seeks orders that a notice of an application under s 180 of the Proceeds of Crime Act 2002 (Cth) (‘POC Act’) may validly be given to the Respondent, Mr Ying, by post. The background to the application for the examination order with respect to Mr Ying is set out in a previous judgment of this Court, AFP v Wang .[1]
[1][2016] VSC 243.
In the Applicant’s Submissions Supporting Postal Service (‘Submissions’), the Applicant submitted that:
(a) notice of an application under s 180 of the POC Act may validly be given by post, relying on s 28A of the Acts Interpretation Act 1901 (Cth) (‘AI Act’). The decision of J Forrest J to the contrary in Commissioner of the AFP v Kaur [2016] VSC 13 (‘Kaur’) is clearly wrong and should not be followed; and
(b) in the alternative, the Supreme Court should make orders under r 6.04(3) of the Supreme Court (Criminal Procedure) Rules 2008 (Vic) (‘the Rules’) directing that Mr Ying be served by post.[2]
[2]Applicant’s Submissions Supporting Postal Service dated 8 August 2016 [3.1], [3.2] (‘Submissions’).
At the hearing before me on 11 August 2016, Counsel for the Applicant abandoned the alternative argument, submitting that r 6.04(3) is invalid.[3] In effect, the Applicant seeks that this Court make a declaration that r 6.04(3) is invalid for the purposes of Judiciary Act 1903 (Cth) (‘Judiciary Act’) s 79.
[3]Transcript page 2, line 25.
Service requirements
The POC Act is relatively silent as to the manner in which service must be effected. Rule 6.04 relates to service under both the Confiscation Act 1997 (Vic) (‘Confiscation Act’) and the POC Act. The rule relevantly provides as follows:
6.04 Notice and service generally
(1) If notice is required by or under the [Confiscations] Act or this Order to be given to any person, it shall be in writing and served on that person in accordance with section 137 of the Act.
(2) If notice is required by or under the Commonwealth Act to be given it shall be in writing.
(3) A copy of an application, a copy of an affidavit and a notice given in a proceeding under the Commonwealth Act shall be served personally or in such other manner as the Court directs.
Evidently, r 6.04(3) requires that notice be provided to Mr Ying personally, or in such other manner as directed by the Court.
Applications under the POC Act are within federal jurisdiction
In Kaur J Forrest J held that service of proceedings under the POC Act in Victoria ‘should be executed in accordance with the Victorian Rules’, and Judiciary Act s 79(1) was not ‘engaged’. The Applicant submits that this conclusion is plainly wrong, for the following reasons.
First, application under the POC Act is a ‘matter arising under a law of the Parliament’ within s 76(ii) of the Australian Constitution (‘Constitution’) and is accordingly within federal jurisdiction. The effect of vesting federal jurisdiction in State courts by Judiciary Act s 39 is to exclude State jurisdiction with respect to those matters. Accordingly, the Applicant contends, ‘in other words, a federal matter can only be determined by a State court in the exercise of federal jurisdiction’. [4]
[4]Submissions [11] (emphasis in submissions).
Referring to APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322[5], the Applicant notes that the consequence of this is that State Parliaments do not have legislative power ‘with respect to the exercise of federal judicial power’.[6] This means that a state law regulating the exercise of jurisdiction can only apply to a federal matter if it is picked up and applied by a Commonwealth law — it cannot do so of its own force as a State law.[7]
[5](2005) 224 CLR 322, 406 [230].
[6]Submissions [12].
[7]Ibid [11] citing as examples Bass v Permanent Trustee Ltd (1999) 198 CLR 334, 352 [35]; Gordon v Tolcher (2006) 231 CLR 334, 345 [30].
As the present case is a federal matter, the Rules cannot apply of their own force, and can only apply if they are picked up by Judiciary Act s 79 or a comparable provision. The Applicant then observes that, by its terms, Judiciary Act s 79 ‘will not pick up a State law if the Constitution or Commonwealth law “otherwise provides”’.[8] The Applicant contends that r 6.04(3) is not picked up by Judiciary Act s 79 for the following reasons.
[8]Submissions [15].
First, r 6.04(3) would stultify the exercise of federal jurisdiction. Judiciary Act s 79 will not pick up a ‘stultifying’ state law.[9] The Applicant contends that this is because:
(a) r 6.04 purports to impose a more onerous procedure for service for proceedings under the POC Act, as compared to the procedure under the Confiscation Act .
(b) without any justification for the different treatment, such a state law ‘is invalid as an interference with the exercise of federal jurisdiction’.[10]
[9]Referring to ASIC v Edensor Nominees Pty Ltd (2000) 204 CLR 559, 591 [68].
[10]Submissions [18].
Second, the Applicant contends that AI Act s 28A ‘otherwise provides’ for the purposes of Judiciary Act s 79(1), thus displacing state law. It is necessary to set out the Applicant’s submission on this point in some detail:
[19] [Rule] 6.04(3) is not picked up because s 28A of the AI Act “otherwise provides”. The test is one of “repugnancy” between the Commonwealth law and the State law to be picked up by s 79(1), namely, whether the operation of the Commonwealth law would so reduce the ambit of the State law that the Commonwealth law is irreconcilable with the State law.
[20] Section 28A(1) of the AI Act applies when a Commonwealth Act permits a document to be served on a person.
[20.1] Part 3-1, Div 1 of the POC Act does not refer expressly to a person being “served”, “given” or “sent” notice of an application under that Division. However, s 182(2) provides that the court “must consider an application for an *examination order without notice having been given to any person if the *responsible authority requests the court to do so”.
[20.12] Section 182(2), by implication, permits notice of an application to be given to a person in all other cases. That is sufficient to engage s 28A(1) of the AI Act.
[21] When s 28A(1) applies, then the document “may” be served by one of the methods set out in s 28A(1). This provision confers a right on a decision-maker to use the facility created by s 28A(1). A State law that purports to set out an exclusive code for service in a case to which s 26A applies “alters, impairs or detracts from” the right created by s 28A(1). To the extent that the State law purports to exclude other methods of service, s 28A(1) “otherwise provides” for the purposes of s 79(1) of the Judiciary Act.
[22] Section 28A(2) does not detract from this analysis. Section 28A(2) only preserves the operation of State laws that “authorise” (rather than require) the service of a document otherwise than as provided by s 28A(1). In other words, the creation of a facility for the service of documents in s 28A(1) does not override State laws that also create a facility for the service of documents. However, if a State law purports to create an exhaustive code for service of particular documents, the State law is repugnant with s 28A to the extent it purports to exclude other methods of service, and s 28A(2) does not preserve the operation of that State law to that extent.[11]
[11]Ibid [19]-[22] (asterisks in original and citations omitted).
The Applicant takes issue with Kaur in this regard: ‘[t]here is every reason to suppose that the “silence” in ss 180 and 182 of the POC Act (a Commonwealth Act) would be supplemented by the interpretation rule in s 28A of the AI Act, which leads to a uniform national application of those provisions across different States and across different courts, rather than relying on disparate court rules’.[12]
[12]Submissions [23.1].
The Applicant further contends that its position is supported by various cases considering service under the Corporations Act 2001 (Cth) (‘Corporations Act’). In particular, The Site Foreman v Brand,[13] and Austar Finance Group Ptd Ltd v Campbell.[14] It is argued that the reasons given in Kaur for finding that these decisions were not relevant were incorrect.
[13](2011) 81 NSWLR 96 (‘The Site Foreman’).
[14](2007) 215 FLR 464 (‘Austar’).
Consideration
Federal jurisdiction
I accept the Applicant’s Submissions regarding this court’s exercise of federal jurisdiction, and the consequences this has for the Rules. I refer to the statement of Gummow J in APLA Ltd v Legal Services Commissioner (NSW) as follows:
Fifthly, the exclusivity of the powers of the Parliament with respect to the conferring, defining and investing of federal jurisdiction (found in s 77 and supported by ss 78, 79 and 80) has the consequence, well recognised in the authorities that the laws of a State with respect to limitation of actions and other matters of substantive and procedural law which are “picked up” by s 79 of the Judiciary Act, could not directly and of their own force operate in the exercise of federal jurisdiction. This generally results from an absence of State legislative power rather than the operation of s 109 of the Constitution with respect to the exercise of concurrent powers.[15]
[15](2005) 224 CLR 322, 406 [230]; see also Kruger v Commonwealth (1996) 190 CLR 1, 140-141 (Gaudron J); Bass v Permanent Trustee Ltd (1999) 198 CLR 334; Gordon v Tolcher (2006) 231 CLR 334.
Consequently, the rule in question can only apply if it is ‘picked up’ by Judiciary Act
s 79.
Is r 6.04(3) ‘picked up’ by Judiciary Act s 79?
The Applicant contended that rule 6.04(3) was not picked up by Judiciary Act s 79 because:
a) the rule stultified the exercise of federal jurisdiction; and
b) the AI Act ‘otherwise provided’ for the purposes of s 79.
Stultification
The Appellant states that r 6.04(3) is not picked up by Judiciary Act s 79(1) as s 79(1) will not pick up a State law that would ‘stultify’ the exercise of federal jurisdiction. The appellant cites Australian Securities and Investments Commission v Edensor Nominees Pty Ltd for this proposition:
It is well established from the decisions under s 79 of the Judiciary Act, most recently that in Austral Pacific Group Ltd v Airservices Australia, that a State statute may be applicable as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies. Indeed, as Gibbs J indicated in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd, were that not so the operation of federal jurisdiction might readily be stultified. There might be withdrawn from courts exercising federal jurisdiction (including this Court) the effective authority to quell controversies in respect of which, by reason, for example, of the identity of parties, s 75 of the Constitution had conferred original jurisdiction upon this Court and s 77 empowered the Parliament to grant authority to the other federal courts and to State courts exercising federal jurisdiction. An attempt by State law to achieve that result would, as to this Court, be repugnant to s 75 of the Constitution. Where jurisdiction was conferred by a law made by the Parliament in exercise of its powers under s 77 of the Constitution, the State law also would be invalid for inconsistency under s 109 of the Constitution.[16]
[16](2000) 204 CLR 559, 591 [68] (Gleeson CJ, Gaudron and Gummow JJ) (citations omitted).
I do not consider this statement supports the Applicant’s contention regarding ‘stultification’. The reference to stultification in that extract is clearly to the established principle that ‘a State statute may be applicable as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies’, which operates to prevent stultification of federal jurisdiction.[17]
[17] Again, the observations of Kruger v Commonwealth (1996) 190 CLR 1, 140-141 (Gaudron J); see also John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65, 88 (Gibbs J).
Further, in relation to the argument that r 6.04 ‘stultifies’ federal jurisdiction by imposing more onerous requirements on the POC Act than the Confiscation Act: Confiscation Act s 137 provides an exhaustive list on how a document is to be served. There is no such equivalent in the POC Act and as discussed below, AI Act s 28A(2) does not displace state law regarding service. The difference between r 6.04(3) and
r 6.04(1) reflects the difference in the Acts that they refer to. Comparing these rules does not establish that r 6.04(3) ‘interferes’ with federal jurisdiction as the Applicant contends. I cannot find that rule 6.04(3) ‘stultifies’ or interferes with federal jurisdiction in the manner contended.
However I emphasise that this does not answer the Applicant’s Submissions regarding ‘repugnancy’, considered below.
‘Otherwise provides’
Section 79(1) of the Judiciary Act is as follows:
79 State or Territory laws to govern where applicable
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
This provision allows a state court exercising federal jurisdiction to apply state laws relating to procedure, unless those laws are displaced by a Commonwealth law or the Constitution. As earlier observed, for state laws to be applied by a court exercising federal jurisdiction, those laws must be ‘picked up’ and applied as ‘surrogate’ federal laws by a Commonwealth provision.[18]
[18]See Commonwealth v Mewett (1997) 191 CLR 471, 554 (Gummow and Kirby JJ).
It is suggested by the Applicant that s AI Act s 28A operates to ‘otherwise provide’ the requisite means of service for an examination order and to displace state law for the purposes of s 79(1).
The Applicant submitted that the test is ‘repugnancy’.[19] The Applicant referred to Austral Pacific Group Ltd v Airservices Australia[20] (‘Austral’) in this regard:
The question remains whether s 79 was inapplicable because provision otherwise was made by another law of the Commonwealth, namely the Compensation Act. The criteria to be applied are indicated in Northern Territory v GPAO. The question is whether the operation of the Compensation Act would so reduce the ambit of the Contribution Act [Queensland] that the provisions of the Compensation Act are irreconcilable with the other law. If so, the Compensation Act ‘otherwise provides’ within the meaning of s 79 of the Judiciary Act. GPAO shows that the question is not answered by application of the doctrine identified, in the decisions construing s 109 of the Constitution, with the phrase ‘covering the field’.[21]
[19]Submissions [19].
[20](2000) 203 CLR 136 (‘Austral’).
[21]Ibid 144 [17] (Gleeson CJ, Gummow and Hayne JJ); 154 [52] (fn 58) (McHugh J). .
The decision in Austral relied heavily on the criteria and consideration of the phrase ‘otherwise provides’ in Northern Territory v GPAO.[22] It is worth setting out the Court’s views regarding the operation of s 79 at some length:
[22](1999) 196 CLR 553.
"Otherwise provided"
[78] The text of s 79 is set out earlier in these reasons. It was derived from s 34 of the Judiciary Act 1789, enacted by the First Congress of the United States and more often referred to as the Rules of Decision Act. Section 34 stated:
‘That the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.’
It has been said of s 34 that, if the federal courts are directed to apply federal law, it governs by ‘displacing’ state law, even on matters of substance (III), and that this operation of s 34 is dictated by the Supremacy Clause of the United States Constitution (Art VI, cl 2).
[79] In applying the phrase ‘otherwise provided’ in s 79, Latham CJ and Starke J asked whether the particular law of the Commonwealth was to be regarded in any way as ‘inconsistent’ with the application of the State Act which was said to be ‘picked up’ by s 79. Later, Menzies asked whether the law relied upon as a law of the Commonwealth was one ‘displacing’ the law of the State. In Australian National Airlines Commission v The Commonwealth, Mason J said:
Section 26A of the High Court Procedure Act [1903 (Cth)], which provides that judgments of the Court shall carry interest, should be regarded as a comprehensive expression of the entitlement in this Court of a litigant to interest on damages to the exclusion of any provision in State law which would otherwise be made applicable by virtue of s 79.
[80] The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself. Seen in that light, the notion of ‘inconsistency’ involved in the phrase ‘otherwise provided’ in s 79 is akin to that first identified by Mason J in the passage from the judgment in University of Wollongong v Metwally set out earlier in these reasons. This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source. The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth.
[81] The issue whether the Family Law Act makes relevant provision otherwise to s 97(3) of the Community Welfare Act [NT] may be approached by asking whether the operation of the former so reduces the ambit of the latter that the provisions of the Family Law Act are irreconcilable with those of the Territory law, with the result that the Family Law Act ‘otherwise provide[s]’.[23]
[23]Ibid 578-579 [78]-[81] (citations omitted).
In University of Wollongong v Metwally Mason J considered ‘repugnancy’:
Inconsistency or repugnancy is a long-standing concept in the field of statutory law. Where the provisions of two statutes are in conflict, so much so that they cannot be reconciled one with the other, there is a consequential need to resolve the problem created by the conflict. In the case of conflicting statutes enacted by one legislature the problem is resolved by regarding the later statute as impliedly repealing the earlier statute to the extent of the inconsistency. In the case of conflicting statutes, one enacted by the Imperial Parliament, the other by a colonial legislature, the problem was resolved in favour of the primacy of the Imperial statute, even if it be the first in time.[24]
[24](1984) 158 CLR 447, 463.
The Applicant submitted that r 6.04(3) alters, impairs and detracts from the ‘right’ purportedly created by AI Act s 28A(1). The Applicant submits that this language, used in the context of the Constitution s 109, can be adopted for considering ‘repugnancy’ under Judiciary Act s 79. Accordingly, the Applicant relied on the following extract from Telstra v Worthing:
[27] The applicable principles are well settled. Cases still arise where one law requires what the other forbids. It was held in Wallis v Downard-Pickford (North Queensland) Pty Ltd that a State law which incorporated into certain contracts a term which a law of the Commonwealth forbad was invalid. However, it is clearly established that there may be inconsistency within the meaning of s 109 although it is possible to obey both the Commonwealth law and the State law. Further, there will be what Barwick CJ identified as ‘direct collision’ where the State law, if allowed to operate, would impose an obligation greater than that for which the federal law has provided. Thus, in Australian Mutual Provident Society v Goulden, in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question ‘would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Life Insurance Act 1995 (Cth)’. A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question. But that is not this case.
[28] In Victoria v The Commonwealth, Dixon J stated two propositions which are presently material. The first was:
When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.
The second, which followed immediately in the same passage, was:
Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.
The second proposition may apply in a given case where the first does not, yet, contrary to the approach taken in the Court of Appeal, if the first proposition applies, then s 109 of the Constitution operates even if, and without the occasion to consider whether, the second proposition applies.[25]
[25](1999) 197 CLR 61, 76-77 [27]-[28] (citations omitted).
The Applicant then suggests that ‘[t]o the extent that the State law purports to exclude other methods of service, s 28A(1) ‘otherwise provides’ for the purposes of s 79(1) of the Judiciary Act’, contrary to the following finding in Kaur:
Finally, as a general rule, where there is some conflict between a State law and a Commonwealth law, the Commonwealth law prevails. However, there is no conflict here. The [AI Act], which applies generically to all legislation, is not intended to override and render null a rule which is designed to provide the exhaustive means of service in precisely these types of applications.[26]
[26][2016] VSC 13 [45].
In coming to that conclusion, his Honour relied on s 2(2) of the AI Act. His Honour clearly conveys that he considers that r 6.04(3) demonstrates a ‘contrary intention’ such that the AI Act would not apply.
Assessing the Applicant’s Submissions requires a close examination of the POC Act and AI Act s 28A.
Consideration
The Applicant’s Submissions move from the POC Act to the AI Act based on the contention that POC Act s 182(2) implicitly engages AI Act s 28A, or alternatively, because POC Act ss 180 and 182 are ‘silent’ regarding service.
Section 1A of the AI Act indicates the Act’s purpose:
This Act is like a dictionary and manual to use when reading and interpreting Commonwealth Acts and instruments made under Commonwealth Acts.[27]
[27]AI Act s 1A.
In Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485, Gleeson CJ stated:
Acts of Parliament are drafted, and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of a particular Act is to be understood in the light of the interpretation legislation.[28]
[28]Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485, 492-493.
The Applicant’s Submissions go as far as to contend that AI Act s 28A confers a ‘right’ to serve by post.[29] With respect, that seems to overstate the purpose of the AI Act. The AI Act appears capable of providing clarity when interpreting powers conferred by Commonwealth legislation. The Applicant has not referred to any authorities in which the AI Act was analysed in isolation to determine whether one of its provisions ‘provided otherwise’ for the purposes of Judiciary Act s 79(1) — nor have my researches found any such authority.
[29]Submissions [21].
The Applicant’s Submissions point to POC Act ss 180 and 182. The Applicant has not referred to POC Act s 183. That provision gives some indication as to how an examination notice is to be served. POC Act s 183(1) reads:
An approved examiner may, on application by the responsible authority, give to a person who is the subject of an examination order a written notice (an examination notice) for the examination of the person.[30]
[30]Proceeds of Crime Act 2002 (Cth) s 183(1) (emphasis added).
The POC Act defines ‘responsible authority’ as ‘the proceeds of crime authority that made the application for the order’, being either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions.[31]
[31]Ibid s 338. See definitions for ‘responsible authority’ and ‘proceeds of crime authority’.
The ordinary, natural meaning of ‘give’ includes to ‘hand over’.[32] This would indicate handing over in person, ie personal service. However, it does not necessarily exclude postal service. The AI Act can assist in interpreting the meaning of ‘give’ under POC Act s 183.
[32]Macquarie Dictionary Online.
AI Act s 28A reads:
28A Service of documents
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate—by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.
Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
(2) Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection.
(emphasis added)
It is unclear what is meant by the words ‘otherwise than as provided’ in AI Act s 28A(2)(a) and (b). There are two possible readings of s 28A(2). Either s 28A(2) allows for state legislation to authorise additional means of service other than those set out in s 28A(1), or s 28A states that if the requisite means of service set out in s 28A(1) conflicts with the requisite means of service under state legislation, then s 28A(2) does not affect state service provisions.
In interpreting ‘otherwise than as provided’ in s 28A(2), the interpretation that would best achieve the purpose or object of the AI Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.[33]
[33]Ibid s 15A. See also s 2(1), 1A.
Section 2 of the AI Act also gives a sense of the Act’s purpose:
2 Application of Act
(1) This Act applies to all Acts (including this Act).
Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.
(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
Adopting a purposive interpretation of the AI Act does not clarify the meaning of ‘otherwise than as provided’ in s 28A(2). Extrinsic materials, including the explanatory memorandum, can be referred to[34] in determining the meaning of s 28A(2). The explanatory memorandum for s 28A states:
Proposed sub-section 28A(2) provides that the operation of proposed sub-section 28A(1) will not affect contrary provisions in any other specific legislation, (including State and Territory legislation) dealing with service of documents or the power of a court to authorize service of a document.[35]
[34]Ibid s 15AB(2)(e).
[35]Acts Interpretation Amendment Bill 1984, Explanatory Memorandum [24].
Based on the explanatory memorandum, ‘otherwise than as provided’ in AI Act
s 28A(2) sets out that if s 28A(1) is contrary to state law relating to procedure, then
s 28A will not ‘affect’ the operation of state law. That is, AI Act s 28A does not displace state law regarding service.
Reading POC Act s 183 together with AI Act s 28A, a ‘proceeds of crime authority ‘may’ be able to effect postal service of an examination notice, but that does not displace state law regarding service.
Accordingly, I consider that by the very language of its provisions — which give primacy to state rules regarding service —s 28A cannot ‘otherwise provide’ for the purpose of Judiciary Act s 79. This conclusion is also supported by the purpose of the Act, and its explanatory memorandum. There is no authority to support the contrary conclusion. Accordingly, the Applicant’s Submissions must be rejected.
It is also worth noting that in Northern Territory of Australia v GPAO (1999) 196 CLR 553, Gleeson CJ and Gummow J analysed whether the Family Law Act 1975 (Cth) ‘left room’ for the operation of a Northern Territory provision.[36]
[36]Northern Territory of Australia v GPAO (1999) 196 CLR 553, 589 [84].
As POC Act s 183 read together with AI Act s 28A does not displace state law regarding service, it would appear that POC Act s 183 and AI Act s 28A ‘leave room’ for the operation of r 6.04(3), allowing for a Judge of this Court to apply their discretion to grant leave for postal service.
On this basis, and having already found that POC Act s 183 read together with AI Act s 28A does not ‘otherwise provide’ for the purposes of Judiciary Act s 79(1), I find that Judiciary Act s 79(1) ‘picks up’ r 6.04(3).
Consequently r 6.04(3) applies to the present case, and absent any other order of the Court, personal service is required.
Are the Corporations Act cases (The Site Foreman and Austar) distinguishable?
Given my findings above it is not strictly necessary for me to consider the Applicant’s Submissions regarding J Forrest J’s consideration of The Site Foreman and Austar in Kaur.
In Kaur, his Honour rejected analogies with these cases, as follows:
[47] However, The Site Foreman concerned a matter under the Corporations Act 2001 (Cth) and was subject to s 5C of the Corporations Act, which in terms stated that the [AI Act] applies. Indeed, the Court’s attention does not appear to have been drawn to s 2 of the [AI Act], a provision which is fundamental to the operation of that Act. Accordingly, I do not accept the Commissioner’s analogy with The Site Foreman.
[48] For completeness, I should add that the cases which were followed in The Site Foreman were apt to the particular legislative context, but not to the position in this case. For instance, the Court followed Austar Finance Group Pty Ltd v Campbell (and, indeed, some of the other cases cited follow Austar as well). Austar dealt with the same legislative context as that in The Site Foreman. Thus s 5C of the Corporations Act was significant there, but is not of relevance here. Further, the Court noted that the rule for service under the UCPR was a general one — it applied broadly to service of originating processes in proceedings in the Supreme Court of New South Wales. It is not surprising that a court would be slow to interpret a broad rule for service, which applies generically across a range of different situations, as shutting out other options for service that apply in a more targeted way to particular applications.[37]
[37]Kaur [2016] VSC 13 [47]-[48].
The Applicant submits that there are two apparent bases to his Honour’s conclusion regarding these cases in Kaur:
(a) first, that the conclusion in those cases depended on s 5C of the Corporations Act; and
(b) second, those decisions did not consider s 2 of the AI Act.
The Applicant observes that at the date of the decisions in The Site Foreman and Austar, AI Act s 28A(1) contained a requirement to the same effect of the present s 2(2). The present s 2(2) was introduced in late 2011, at which point the words ‘unless the contrary intention appears’ were removed from s 28A(1), and other provisions in the AI Act.
While it may be, as the Applicant submits, that at the time these cases were considered there was an equivalent to AI Act s 2(2) (albeit not as a standalone provision), whether an Act displays a ‘contrary intention’ must be determined by reference to the particular Act in question, and not by analogy to cases occurring in a different legislative context.
Conclusion
I find that the Applicant has not made out either of its arguments that r 6.04(3) is not picked up by Judiciary Act s 79(1). AI Act s 28A does not ‘otherwise provide’ for the purposes of Judiciary Act s 79(1) and r 6.04(3) does not ‘stultify’ or interfere with federal jurisdiction.
Rule 6.04(3) is ‘picked up’ by s 79 of the Judiciary Act and is valid. Based on this finding, I note that the Applicant could have sought orders under r 6.04(3) that Mr Ying be served by post, but that counsel chose to abandon that application at the hearing.
I also note that this Court has in the past granted leave for service by email and even to an individual’s social media account. The Applicant is free to make an application on summons.
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