Harrison v Fournier
[2016] QMC 19
•1 November 2016
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 the territorial limits of Queensland (the jurisdiction of the court pursuant to the Justices Act 1886) and the Commonwealth of Australia (the extended jurisdiction of the court pursuant to the Service and Execution of Process Act 1992).
As to the argument that the Summons is invalid because Mr Fournier’s address is in a foreign country, I can find no provision in the Justices Act 1886 or indeed the Service and Execution of Process Act 1992 that would invalidate the Summons on that basis. I therefore find that the Summons as drafted is not invalid on its face.
It is the law, and it is accepted, that a Summons is not perfected until properly served[1]. In this case, the Respondent/Complainant sought the assistance of the Extradition and Mutual Assistance, International Crime Co-operation Central Authority in Canberra regarding service of the Complaint and Summons on Mr Fournier in Canada.[2] This request was made in accordance with the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the MA Act) which has as its objects, the following –
(a) to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws); and
(c) to facilitate the obtaining by Australia of international assistance in criminal matters.[3]
[1]Laurie v Carroll (1957-8) 98 CLR 310.
[2] Paragraph 8, Affidavit of Melanie Michelle Morris dated 19 July 2016.
[3]Mutual Assistance in Criminal Matters Act 1987 (Cth), Section 5.
It is argued by Mr Fournier that there are no provisions in the MA Act which authorise service of an initiating process, but that the MA Act simply facilitates the gathering of evidence. He relies on Section 12 of that Act which sets out the provisions relating to requests by Australia to a foreign country for assistance in accordance with a “mutual assistance treaty”.[4] These are, inter alia, to request a foreign country to “arrange for evidence to be taken in the foreign country, or a document or other article in the foreign country to be produced for the purposes of a proceeding or investigation relating to a criminal matter in Australia”;[5] to give assistance in relation to search and seizure,[6] stored communications,[7] use of surveillance devices[8], telecommunication data,[9] and to arrange for persons to give evidence or assist investigations.[10]
[4] Ibid., Section 7(2)(a).
[5] Ibid., Section 12 (1)(a), (aa) and (b).
[6] Ibid., Part III.
[7] Ibid., Part IIIA.
[8] Ibid., Part IIIBA.
[9] Ibid., Part IIIB.
[10] Ibid., Part IV.
The “Treaty between the Government of Australia and the Government of Canada on Mutual Assistance in Criminal Matters”[11] (the Treaty) forms Regulation 3 to the Schedule of the Regulations to the MA Act. Its scope is as follows –
[11] Article II.
1. The Parties shall provide…mutual assistance in all matters relating to the investigation, prosecution and suppression of offences.
2. Assistance shall include:
(a) exchanging information and objects;
(b) locating or identifying persons, objects and sites;
(c) serving documents;
(d) taking of evidence and obtaining of statements of persons;
(e) …
Mr Fournier has submitted that the Treaty cannot extend the operation of the MA Act as a regulation is limited by the principal Act. Further, he says that even if the Treaty did extend the operation of the MA Act, the mutual assistance with regard to the serving of documents does not include the service of initiating process, such as the Summons.
In Bollag & Anor v Attorney-General (Cth) and Ors[12] Justice Merkel of the Federal Court found that Section 6 of the MA Act expressly preserved the power of the executive government to make requests outside the Act and that the framework contained in the MA Act did not forbid, limit or circumscribe requests for such assistance. Even though Section 7 of the MA Act did not expand the effect of Section 12 to authorise such a request, Merkel J found that Sections 10 and 40 of the MA Act “provided statutory authorisation and conferred power on the Attorney-General or his or her delegate to make a request for international assistance in accordance with the Treaty.” Section 7 of the Act requires that such a request must comply with any limitations, conditions, exceptions or qualifications in the Treaty.
[12] (1997) 149 ALR 355.
In finding that Sections 12 and 14 of the MA Act did not express a “code that defined and exhausted the powers of the executive government to request such assistance”, Merkel J stated that “(t)he manifest intention of parliament in passing the Act was to provide additional sources of power for requests for international assistance.”
Mr Fournier submits that Bollag’s case is distinguishable, as it was concerned with the obtaining of documents and the issue and execution of search warrants in Switzerland, and not with service as in this case. Whilst I accept that the requests are different and indeed certain Articles of the respective Treaties are different, the principles stated by Merkel J with regard to the interpretation of the MA Act itself, remain the same. I therefore find that the provisions of the Treaty between Australia and Canada prevail over the MA Act.
The scope of the Treaty includes requesting assistance in “serving documents” in all matters relating to the “prosecution…of offences”. Taking into account the objects of the MA Act and a strict interpretation of the Treaty, I find that assistance can be requested to serve initiating process in Canada pursuant to the Treaty and that the subject Summons can be served in Canada. A further confirmation that this is the correct interpretation is found in Article XV of the Treaty which relates to service of documents. Clause 2 of that article refers to “a request for the service of a document pertaining to a response or appearance in the Requesting State”. (emphasis added). If this contention is found to be incorrect, I make the following findings.
The Respondent/Complainant says that as the Summons does not coerce or compel it is not a process which must bow to the jurisdiction and has referred me to the decision of the High Court in Plenty v Dillon[13] where the court found –
A summons to appear before a court of summary jurisdiction to answer an information or complaint does not itself compel a defendant to appear. Its primary purpose is to ensure that natural justice is accorded to a defendant by giving the defendant notice of the subject of the complaint and an opportunity to be heard. Service of a summons….does not coerce a defendant to appear, though a failure to appear in answer to the summons may lead to the issue of a warrant.[14]
[13] (1990-1) 171 CLR 635.
[14] Ibid., p. 641.
Applying the High Court decision in Plenty v Dillon, I find that the Summons does not coerce or compel Mr Fournier to appear. Therefore, service of the Summons would come within the assistance identified in Article II 2 (a) of the Treaty. I am not persuaded otherwise by the argument that because the court has jurisdiction to deal with the matter ex parte pursuant to section 142A of the Justices Act 1886, the Summons is a document which does not come within the purview of the Treaty.
Whether the court is seized of jurisdiction in this matter depends on proper service of the Summons. Section 46 of the Justices Act 1886 (Qld) sets out the requirements for the proper service of a Summons. This includes personal service. Section 56(3) provides that a person who serves a summons “shall…attend before any justice of the peace having jurisdiction in the State or part of the State or part of the Commonwealth in which such summons was served and depose, on oath and in writing endorsed on a copy of the summons, to the service thereof.”
An Affidavit of Service sworn by Donald Dunlop, a Commissioner for Oaths for the Province of Alberta is p 76 of Exhibit 1 to the Affidavit of Melanie Michelle Morris dated 19 July 2016. Mr Dunlop has also endorsed the Oath of Service attached to the Complaint Sworn and Summons.[15] It is argued by Mr Fournier that proper service has not been affected, as Mr Dunlop has not executed his Affidavit of Service “before a justice of the peace having jurisdiction in Queensland as required by ss56(3).”[16] Mr Fournier further argues that neither the Affidavit of Service nor the Oath of Service are endorsed on a copy of the summons. I am satisfied that the Oath of Service, appearing at page 77 of Exhibit 1 has been endorsed on a copy of the Summons which was served on Mr Fournier. Further, I find the documents exhibited to Ms Morris’ affidavit at pages 76 and 77 of Exhibit 1 are proof of that service.
[15] Affidavit of Melanie Michelle Morris, Exhibit 1, p.77.
[16] Applicant’s Submissions at paragraph 48.
There is a further argument by Mr Fournier relating to proving the oath taken by Mr Dunlop complies with the Oaths Act 1867 (Qld). Article XV of the Treaty sets out the procedures to be taken for the service of documents and includes a provision that the “Requested State shall return a proof of service in the manner required by the Requesting State.” Based on the evidence contained in the supporting affidavits filed by the Respondent/Complainant, I am satisfied that –
1. The returned proof of service complies with the Treaty;
2. The Treaty forms part of the law of the Commonwealth of Australia through the operation of the MA Act;
3. “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”[17]
[17]Commonwealth of Australia Constitution Act, Section 109.
I therefore find that there has been proper service of the Summons on Mr Fournier. The Applicant/Defendant’s application therefore fails and is dismissed.
0
0
5