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Filipowski v Frey

Filipowski v Frey

Case [2004] NSWLEC 182 27 April 2004

Jurisdiction

Service of Process

Retrospectivity of Legislative Amendments

Marine Pollution

Procedural Fairness

Environmental Law

Civil Litigation & Procedure

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Land and Environment Court

of New South Wales

CITATION: Filipowski v Frey [2004] NSWLEC 182

PARTIES: Barbara Filipowski (Prosecutor)
Theo Frey (Defendant)

FILE NUMBER(S): 50067 of 2003

CORAM: McClellan CJ

KEY ISSUES: Environmental Offences :- Marine pollution
Summary prosecution
Commencement of proceedings
Validity of service
Summons and order made pursuant to a summons
Retrospectivity of legislative amendments

LEGISLATION CITED: Marine Pollution Act 1987 (NSW)
Land and Environment Court Act 1989 (NSW)
Criminal Procedure Act 1986 (NSW)
Justices Act 1902 (NSW)
Pesticides Act 1978 (NSW)
Supreme Court Act
Interpretation Act 1987 (NSW)
Service and Execution of Process Act 1992 (Cth)
Mutual Assistance in Criminal Matters Act 1987 (Cth)

CASES CITED: Australian Securities and Investment Commission v Sweeney (No 2) (2001) 38 ACSR 743;
Beckwith v The Queen (1976) 135 CLR 569;
Fisher v Hebburn Ltd (1960) 105 CLR 188;
Laurie v Carroll (1958) 98 CLR 310;
Maxwell v Murphy (1957) 96 CLR 261;
Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155;
Plenty v Dillon (1991) 171 CLR 635;
Ricegrowers Co-operative Ltd & Anor v ABC Containerline NV & Ors (1996) 138 ALR 480;
Rodway v The Queen (1990) 169 CLR 515;
Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134;
Taylor v Environment Protection Authority (2000) 50 NSWLR 48;
Thompson v Noall (1980) 30 ALR 162;
Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595

DATES OF HEARING: 5-6 November 2003

DATE OF JUDGMENT: 04/27/2004

LEGAL REPRESENTATIVES:

R G Forster SC/A Hill (Prosecutor)
Dibbs Barker Gosling (Solicitors)
G J Nell (Amicus Curiae)
Ebsworth & Ebsworth (Solicitors)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50067/03

McCLELLAN J

FILIPOWSKI

Applicant

FREY

Respondent

Judgment

1 On 24 July 2003 the Prosecutor commenced proceedings against the defendant in respect of an alleged discharge of oil from the vessel “P&O Nedlloyd Fos” (“the Vessel”) into the waters of Brotherson Dock, Port Botany on 30 April 2001.

2 The defendant was the Chief Engineer of the Vessel. He is prosecuted as a person whose actions are alleged to have caused the discharge of oil from the Vessel contrary to s 8(1) of the Marine Pollution Act 1987 (NSW) (“the Act”). The Master and owners of the Vessel were also prosecuted and have both pleaded guilty.

3 The present issue is whether the defendant has been properly served. The Prosecutor submits that service of the summons commencing the proceedings and other relevant documents was effected in either of two ways:

(a) by their delivery to the offices of the Vessel’s agent, P&O Nedlloyd Limited, on 30 July 2003 in reliance on s 57 of the Act; or

4 The matter originally came before Talbot J who identified the issue and fixed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Filipowski v Frey

Details

AGLC: Filipowski v Frey [2004] NSWLEC 182
Case: [2004] NSWLEC 182
Decision Date: 04/27/2004

CaseChat Overview and Summary

In the case of Filipowski v Frey, the Land and Environment Court of New South Wales was tasked with determining whether the defendant, Theo Frey, had been properly served with the summons initiating proceedings against him for an alleged marine pollution offence under the Marine Pollution Act 1987 (NSW). The defendant, who was the Chief Engineer of the vessel "P&O Nedlloyd Fos" at the time of the alleged offence, was alleged to have caused a discharge of oil into the waters of Brotherson Dock, Port Botany on 30 April 2001. The Prosecutor initiated proceedings against Frey on 24 July 2003, and the primary issue before the Court was whether the service of the summons and related documents had been validly effected.

The Court considered two potential methods of service: (a) delivery of the documents to the offices of the vessel's agent, P&O Nedlloyd Limited, on 30 July 2003, pursuant to section 57 of the Marine Pollution Act; and (b) personal service on Simon Liddy, a solicitor, on 10 September 2003, in reliance upon an authority and undertaking executed by the defendant on 1 May 2001. The defendant had revoked the authority given to Mr. Liddy on 1 September 2003, after service had been attempted on P&O Nedlloyd on 30 July 2003. The Court found that neither method of service was valid, leading to the conclusion that the defendant had not been properly served.

Regarding the service on P&O Nedlloyd Limited, the Court held that section 57 of the Marine Pollution Act did not permit service of the summons in proceedings before the Land and Environment Court, as the section was intended to operate when proceedings were to be prosecuted in the local court. The Court found that the language of section 57 could not be readily accommodated to the procedures applicable in the Land and Environment Court and, therefore, could not be used to effect service of process in these proceedings.

As for the service on Mr. Liddy, the Court found that the revocation of the authority given to him rendered any service on him ineffective. The Court also rejected the argument that the summons and related documents be taken to have been served on the defendant under Part 9 rule 9.11 of the Supreme Court Rules, as it was not established that it was impracticable to serve the defendant.

In conclusion, the Court found that the defendant had not been properly served, and the proceedings against him could not continue without valid service. The Court's judgment highlights the importance of strict compliance with service requirements in criminal proceedings, particularly when dealing with international shipping and the potential challenges that may arise.

Orders