Harrison v Fournier - [2016] QMC 19

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Harrison v Fournier [2016] QMC 19

PARTIES:

Paul Kevin HARRISON

(Complainant)

V

Jean-Denis FOURNIER

(Defendant)

FILE NO/S:

MAG-00147100/15(9)

DIVISION:

Criminal

PROCEEDING:

Application to strike out

ORIGINATING COURT:

Dalby Magistrates Court

DELIVERED ON:

1 November 2016

DELIVERED AT:

Dalby

HEARING DATE:

10 October 2016

MAGISTRATE:

K Ryan

ORDER:

Application dismissed

CATCHWORDS:

COMPLAINT SWORN AND SUMMONS – whether capable of service in Canada – whether Summons compels a defendant to appear

TREATY – whether the Treaty between the Australian and Canadian governments on mutual assistance provides for service of an initiating process issued in Queensland

SERVICE AND PROOF OF SERVICE – whether service of a Complaint Sworn and Summons issued in Queensland has been properly served in Canada – whether proof of service has been made out

LEGISLATION –

Justices Act 1886 (Qld)

Mutual Assistance in Criminal Matters Act 1987 (Cth)

Oaths Act 1867 (Qld)

Petroleum and Gas (Production and Safety) Act 2004 (Qld)

Service and Execution of Process Act 1992 (Cth)

CASES –

Bollag and Anor v Attorney-General (Cth) and Ors (1997) 149 ALR 355

Laurie v Carroll (1957-8) 98 CLR 310

Plenty v Dillon (1990-1) 171 CLR 635

COUNSEL:

Mr B McMillan for the Applicant/Defendant

Ms J Sharp for the Respondent/Complainant

SOLICITORS:

Sparke Helmore

Gilshenan and Luton Legal Practice

A Complaint Sworn and Summons alleging offences committed by Mr Fournier, the Applicant/Defendant, against Sections 693(c) and 699 of the Petroleum and Gas (Production and Safety) Act 2014 was filed on 16 July 2015 and extended for service by this court on 20 October 2015.

It is common ground that a conditional appearance was made by Mr Fournier for the purposes of objecting to the jurisdiction of the court to hear the Complaint. Subsequently, an application to strike out the Complaint and Summons for want of jurisdiction was filed.

Both parties provided written submissions as well as oral submissions when the jurisdictional point came on for hearing. In addition, the Respondent/Complainant filed two affidavits, deposing to the steps taken to have Mr Fournier served in Canada where he now resides. An affidavit of service sworn by a Commissioner for Oaths for the Province of Alberta is exhibited to the affidavit material.

Section 837 of the Petroleum and Gas (Production and Safety) Act 2014 provides that proceedings for an offence against that Act must be taken in a summary way under the Justices Act 1886. Section 19 of the Justices Act 1886 provides summary jurisdiction to a Magistrates Court to hear and determine matters which are not declared to be indictable offences.

At the outset, it was agreed that in the absence of statutory authority, the service of the Summons is limited to the jurisdiction of the court.

Mr Fournier argues that the Summons on its face is invalid as it purports to notify him at an address in Canada of the complaint made and to advise him to appear before the court (emphasis added). He further argues that the purported service has been made outside…

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 Harrison v Fournier

Details

AGLC: Harrison v Fournier [2016] QMC 19
Case: [2016] QMC 19
Decision Date: 1 November 2016

CaseChat Overview and Summary

The matter of Harrison v Fournier involved a dispute over the proper service of a complaint sworn and summons issued in Queensland. The defendant, Fournier, was residing in Canada at the time of the proceedings, leading to the question of whether the summons was capable of being served in Canada. Additionally, the court had to determine if the summons compelled the defendant to appear in the Queensland court. The case also examined the application of the Treaty between Australia and Canada on mutual assistance, questioning whether this treaty provided for the service of an initiating process issued in Queensland.

The central legal issues revolved around the interpretation and application of the relevant legislation and treaty provisions concerning the service of legal documents. Specifically, the court needed to decide whether the summons was validly served in Canada and if the proof of service met the necessary legal requirements. Furthermore, the court had to assess whether the summons was indeed compelling the defendant to appear in the Queensland court.

In addressing these issues, the court found that the summons did not compel the defendant to appear in Queensland as it did not specify any requirement for the defendant to attend court proceedings. Additionally, the court concluded that the service of the summons in Canada did not meet the requirements under the relevant legislation and treaty provisions. Consequently, the proof of service was deemed insufficient, leading to the dismissal of the application.

The court dismissed the application, finding that the summons had not been properly served in Canada and the proof of service was inadequate. No further orders were made beyond the dismissal of the application.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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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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CITATION:	Harrison v Fournier [2016] QMC 19
PARTIES:	Paul Kevin HARRISON (Complainant) V Jean-Denis FOURNIER (Defendant)
FILE NO/S:	MAG-00147100/15(9)
DIVISION:	Criminal
PROCEEDING:	Application to strike out
ORIGINATING COURT:	Dalby Magistrates Court
DELIVERED ON:	1 November 2016
DELIVERED AT:	Dalby
HEARING DATE:	10 October 2016
MAGISTRATE:	K Ryan
ORDER:	Application dismissed
CATCHWORDS:	COMPLAINT SWORN AND SUMMONS – whether capable of service in Canada – whether Summons compels a defendant to appear TREATY – whether the Treaty between the Australian and Canadian governments on mutual assistance provides for service of an initiating process issued in Queensland SERVICE AND PROOF OF SERVICE – whether service of a Complaint Sworn and Summons issued in Queensland has been properly served in Canada – whether proof of service has been made out LEGISLATION – Justices Act 1886 (Qld) Mutual Assistance in Criminal Matters Act 1987 (Cth) Oaths Act 1867 (Qld) Petroleum and Gas (Production and Safety) Act 2004 (Qld) Service and Execution of Process Act 1992 (Cth) CASES – Bollag and Anor v Attorney-General (Cth) and Ors (1997) 149 ALR 355 Laurie v Carroll (1957-8) 98 CLR 310 Plenty v Dillon (1990-1) 171 CLR 635
COUNSEL:	Mr B McMillan for the Applicant/Defendant Ms J Sharp for the Respondent/Complainant
SOLICITORS:	Sparke Helmore Gilshenan and Luton Legal Practice