Globex Shipping S.A. v Magistrate Mack

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SUPREME COURT OF QUEENSLAND

CITATION:

Globex Shipping S.A. v Magistrate Mack & Anor [2018] QSC 138

PARTIES:

GLOBEX SHIPPING S.A.

(applicant)

v
MAGISTRATE MACK

(first respondent)
MATTHEW JOSEPH SLATCHER
(second respondent)

FILE NO/S:

No 8772 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2018

JUDGE:

Davis J

ORDER:

1.    IT IS DECLARED THAT:

      a.      The complaint and summons has not been lawfully served upon the applicant in accordance with s 29A of the Protection of the Sea (Prevention of Pollution) Act 1983 (Cth) or otherwise.

      b.      There has been no waiver of the requirement for service.

      c.      In the absence of service of the complaint and summons and in the absence of waiver of the requirement for service, the Magistrates Court has no jurisdiction to proceed with an examination of witnesses.

2.    Each party is to deliver written submissions on costs by 28 June 2018 and the question of costs will be determined without oral hearing unless either party, in their written submissions on costs, contends that there should be an oral hearing.

CATCHWORDS:

ENVIRONMENT AND PLANNING – POLLUTION – WATER POLLUTION – OFFENCES – JURISDICTION, PROCEDURE AND EVIDENCE – PROCEDURE – OTHER MATTERS – where the applicant was charged with offences pursuant to the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) – where the relevant Act provides for service on “the agent of the ship” – whether service was effected on “the agent of the ship”

MAGISTRATES – OTHER PRE-HEARING PROCEDURES – NOTICE TO ACCUSED OF COURT APPEARANCE – OTHER MATTERS RELATING TO VALIDITY – where the applicant was charged with offences pursuant to the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) – where the applicant had been purportedly served with the complaint and summons – where the applicant challenged the purported service in the Magistrates Court – whether service was properly effected – whether service was required for the Magistrates Court to have jurisdiction to proceed with an examination of witnesses

Acts Interpretation Act 1901 (Cth) s 15AA
Acts Interpretation Act 1954 (Qld) s 32
Judicial Review Act 1991 (Qld) s 43
Justices Act 1886 (Qld) s 4, s 42, s 53, s 54, s 55, s 56, s 103, s 104, s 113A, s 141, s 142, s 142A, s 143
Magistrates Court Act 1989 (Vic) s 34, s 41

Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) s 3, s 9, s 29A

Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, cited
Capper v Thorpe (1998) 194 CLR 342, distinguished
FKP Commercial Developments Pty Ltd v Albion Mill FCP Pty Ltd & Anor [2017] QSC 322, followed
Goodes v James Patrick & Co Ltd [1963] VR 334, distinguished
Guss v Commissioner of Taxation [2015] VSC 259, distinguished
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531,…

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Details
Case
[2018] QSC 138
Decision Date

CaseChat Overview and Summary

Globex Shipping S.A. challenged the service of a complaint and summons issued against them by the Magistrates Court. The summons was issued pursuant to the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) (POTS Act) and the alleged offence related to a discharge of oil into the exclusive economic zone and the outer territorial sea of Australia. The applicant contested the validity of the service of the complaint and summons on the grounds that it was not served on their agent in Australia, as required by the POTS Act, and that they had not waived the requirement for service. The court was required to determine whether the service of the complaint and summons was lawful and whether the Magistrates Court had jurisdiction to proceed with an examination of witnesses.

The court held that the service of the complaint and summons was not lawful as it was not served on the agent of the ship, as required by the POTS Act. The court also found that there had been no waiver of the requirement for service. The court held that the Magistrates Court did not have jurisdiction to proceed with an examination of witnesses in the absence of lawful service of the complaint and summons and the absence of a waiver of the requirement for service. The court declared that the complaint and summons had not been lawfully served upon the applicant and that there had been no waiver of the requirement for service. The court also declared that in the absence of lawful service and waiver of the requirement for service, the Magistrates Court had no jurisdiction to proceed with an examination of witnesses.

The court ordered that each party deliver written submissions on costs by 28 June 2018, and the question of costs would be determined without an oral hearing unless either party contended that there should be an oral hearing.

Orders

Orders of the court

1. IT IS DECLARED THAT:

a. The complaint and summons has not been lawfully served upon the applicant in accordance with s 29A of the Protection of the Sea (Prevention of Pollution) Act 1983 (Cth) or otherwise.

b. There has been no waiver of the requirement for service.

c. In the absence of service of the complaint and summons and in the absence of waiver of the requirement for service, the Magistrates Court has no jurisdiction to proceed with an examination of witnesses.

2. Each party is to deliver written submissions on costs by 28 June 2018 and the question of costs will be determined without oral hearing unless either party, in their written submissions on costs, contends that there should be an oral hearing.

Background

Background to the litigation

Charge 1 against the applicant alleges a discharge of oil into the “exclusive economic zone” and charge 2 alleges a discharge of oil into the “outer territorial sea”. The POTS Act defines “outer territorial sea” as part of the “territorial sea”.[8] Both the exclusive economic zone and the territorial sea are areas of the seas off the shores of Australia and recognized in the Sea and Submerged Lands Act 1973 (Cth).[9] Nothing on this application turns on either the identification of, or the distinction between, these two areas of the sea.[8] Protection of the Sea (Prevention of Pollution from Ships) Act 1983 s 3(1D).[9] See Part 2.Background facts The “Regina”[10] is a ship which is registered in Panama. On 17 June 2011 the ship arrived in the port of Bunbury, Western Australia, and left shortly thereafter. At that point the ship’s owner was the applicant; the operator was a charterer, Samsun Logix Corporation.[11] That seems to be the only occasion the ship has berthed at a port in Australia. On that occasion, “Monson Agencies Bunbury” (Monson) was the local ship’s agent for the ship. Monson is the last agent for the ship recorded on the Australian Border Force data base.[12][10] Which is now renamed as the M V Kamenitza.[11] Affidavit of Matthew Troy Hockaday, filed 27 September 2017, CFI 4, exhibit MTH-8 at 101 (“Hockaday affidavit”).[12] At 97–98. On 16 July 2015, a little over four years after the ship had docked in Bunbury, the ship passed through waters near the east coast of Australia on its way to New Zealand. It is alleged that at this time the applicant was the ship’s owner and Jang was the ship’s master. During this journey, the ship allegedly discharged oil into the exclusive economic zone and the outer territorial sea (the alleged oil spill). This was the occasion of the alleged offences. By 24 July 2015, oil had begun to wash ashore on various islands and parts of the coastline in what can be broadly described as the Townsville area.[13][13] At 94. After the alleged oil spill, Maritime Safety Queensland (a Queensland Government authority; “MSQ”) and the Great Barrier Reef Marine Park Authority (a Commonwealth Government agency) jointly set up an investigation.[14] On 16 June 2016, MSQ wrote to Thynne & Macartney. Thynne & Macartney are solicitors practising in Brisbane and who acted for the applicant both before the Magistrates Court in Townsville and in the application before me. Their involvement in the matter is of critical importance to the second respondent’s submissions on the application.[14] At 94. In the letter of 16 June 2016, written to Thynne & Macartney some 11 months after the alleged oil spill, MSQ said this:“On 17 July 2015 Australian Authorities were informed of an oil spill within waters of the central Great Barrier Reef, off Cape Upstart, Queensland, Australia. On 24 July 2015 oil began to wash ashore on the Islands and the mainland areas of Hinchinbrook Island, the Palm Isle Group, and Halifax; and nearby coastal areas between Townsville & Lucinda. Authorities conducted a significant clean-up and sampling operation over several days as a consequence of the oil spill.The joint agency investigation team comprising of investigators from Maritime Safety Queensland and the Great Barrier Reef Marine Park Authority have conducted an investigation; and believe it has sufficient evidence to identify the Panama flagged cargo ship M V Regina IMO 9575527 (the ship) as responsible for the oil discharge.The investigation has determined that Globex Shipping S.A. was the owner of the Ship and SAMSUN LOGIX CORPORATION was the operator of the ship at the time of the incident. Both the owner and operator of the ship are corporations registered in South Korea. We understand that the ship is now named M V Kamenitza and that ownership has changed.It is also our understanding that the P & I Club representing the owner of the ship at the time of the incident was Steamship Mutual U/W (Bermuda) and that your firm is their local legal representative.”[15][15] At 94.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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