Slatcher v Globex Shipping S.A

Case [2019] QCA 167

SUPREME COURT OF QUEENSLAND

CITATION:

Slatcher v Globex Shipping S.A. [2019] QCA 167

PARTIES:

MATTHEW JOSEPH SLATCHER
(appellant)
v
GLOBEX SHIPPING S.A.
(respondent)

FILE NO/S:

Appeal No 7442 of 2018
SC No 8772 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2018] QSC 138 (Davis J)

DELIVERED ON:

27 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2018

JUDGES:

Fraser and Philippides JJA and Douglas J

ORDERS:

1.   Appeal allowed.

2.   Set aside the orders made in the Trial Division.

3.   Respondent to pay the appellant’s costs of the proceedings in the Trial Division and in this appeal.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – PROSECUTION – COMMITTAL FOR TRIAL BY JUSTICE OR CORONER – POWERS AND DUTIES OF MAGISTRATE OR CORONER – OTHER MATTERS – where the appellant alleged that the Panamanian-flagged ship “Regina” committed offences by discharging oil into the exclusive economic zone and outer territorial sea off the coast of Queensland – where a complaint and summons concerning the alleged offences and directed to the respondent, a corporation registered in South Korea, was delivered to locations within Australia including the offices of Thynne + Macartney – where the magistrate ruled that the complaint and summons had been duly served upon the respondent – where the primary judge declared inter alia that the complaint and summons had not been served upon the respondent, and that the Magistrates Court has no power to proceed with an examination of witnesses in the absence of service or waiver of the requirement for service – whether the complaint and summons was served upon the respondent – whether the Magistrates Court has power to conduct an examination of witnesses in the absence of service or waiver of the requirement for service of a complaint and summons

Justices Act 1886 (Qld), s 54(1A), s 56(1)
Magistrates’ Court Act 1989 (Vic), s 34, s 41
Navigable Waters (Oil Pollution) Act 1960 (Vic)
Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth), s 9, s 29A
Transport Legislation Amendment Act 1991 (Cth)

Capper v Thorpe (1998) 194 CLR 342, [1998] HCA 24, cited
Cuttler v Browne & Anor[2010] QCA 346, cited
FKP Commercial Developments Pty Ltd v Albion Mill FCP Pty Ltd [2018] 3 Qd R 258; [2017] QSC 322, cited
Goodes v James Patrick & Co [1963] VR 334; [1963] VicRp 50, cited
Guss v Magistrates’ Court at Victoria [2003] VSC 365, considered
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; [1996] NSWSC 314, cited
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37, applied
Nitz v Evans (1993) 19 MVR 55; [1993] VicSC 177, distinguished
Pino v Prosser [1967] VR 835; [1967] VicRp 107, applied
Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5, applied
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28,…

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Details
AGLC
Slatcher v Globex Shipping S.A [2019] QCA 167
Case
[2019] QCA 167
Decision Date

CaseChat Overview and Summary

The case of Slatcher v Globex Shipping S.A involved a dispute over the alleged discharge of oil by the Panamanian-flagged ship “Regina” into the waters off the coast of Queensland. The appellant, Slatcher, brought a complaint against the respondent, Globex Shipping S.A, a corporation registered in South Korea, alleging that the ship committed offences by discharging oil into the exclusive economic zone and outer territorial sea. The complaint and summons were delivered to various locations within Australia, including the offices of Thynne + Macartney, a firm of solicitors. The case was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the complaint and summons had been properly served upon the respondent and whether the Magistrates Court had the jurisdiction to proceed with an examination of witnesses in the absence of service or waiver of the requirement for service. The appellant argued that the primary judge had erred in finding that the complaint and summons had not been lawfully served upon the respondent and in declaring that the Magistrates Court had no jurisdiction to proceed with an examination of witnesses.

The court examined the evidence relating to the service of the complaint and summons. The appellant had sworn an oath stating that the respondent had been served with a copy of the complaint and summons by registered post addressed to Thynne + Macartney. The court noted that Thynne + Macartney had received correspondence regarding the alleged oil spill and had responded to inquiries from the Queensland Department of Transport and Main Roads and the Commonwealth Director of Public Prosecutions. However, Thynne + Macartney had denied having instructions to accept service of the charges against the defendants.

The magistrate had ruled that the complaint and summons had been duly served upon the respondent, finding that the respondent was acutely aware of the proceedings and that service was effective on that basis. The primary judge, however, disagreed, declaring that the complaint and summons had not been served upon the respondent and that the Magistrates Court had no power to proceed with an examination of witnesses in the absence of service or waiver of the requirement for service.

The court held that service of the summons was indeed a precondition to the exercise of the power to proceed on the complaint in the absence of waiver of the necessity for service. Furthermore, the court found that Thynne + Macartney was not “the agent of the ship” for the purposes of s 29A of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth), nor was Monson an “agent of the ship” for the purposes of s 29A of the POTS Act.

Consequently, the appeal was allowed, and the orders made in the Trial Division were set aside. The respondent was ordered to pay the appellant’s costs of the proceedings in the Trial Division and in the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders made in the Trial Division.

3. Respondent to pay the appellant’s costs of the proceedings in the Trial Division and in this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant contends that the primary judge erred (ground 1) in declaring that the complaint and summons had not been lawfully served upon the respondent and (ground 2) in declaring that the Magistrates Court had no jurisdiction to proceed with an examination of witnesses.Evidence relating to service In an oath of service sworn on 21 March 2017, the appellant stated that he had served the respondent with a copy of the complaint and summons by registered post on that day in a letter addressed to the respondent at the address of a firm of solicitors, Thynne + Macartney, which was described as the last place of business of the respondent known to the appellant. The evidence before the magistrate concerning the role of Thynne + Macartney is to the following effect:(a)A search of the maritime database “Seaweb” on the ship “Regina” showed that the Protection and Indemnity (P&I) Club History for the Ship identified Steamship Mutual U/W (Bermuda) (“the Club”). A search of its website showed that the ship was on the “List Entered Vessels” and the worldwide list of “Correspondents for the Club” included, for Brisbane, Thynne + Macartney. The contact persons for that firm, including the partner of that firm who subsequently had the conduct of the matter for the respondent, were named. The text on the Club’s website includes statements that a listed correspondent “acts for the shipowner/charterer whose vessel is entered with the Association” and the “Club does not appoint Agents when difficulties arise at or near any of the places listed below” but “Members or their Masters are recommended to apply to any of the following firms for assistance”.(b)On 16 June 2016, an officer of the Queensland Department of Transport and Main Roads wrote to Thynne + Macartney informing that firm of the alleged oil spill and clean up and sampling operation over several days. The officer referred to the belief of a joint agency investigation team comprising investigators from Maritime Safety Queensland and the Great Barrier Reef Marine Park Authority that it had sufficient evidence to identify the ship as responsible for the oil discharge. The officer stated that the investigation had determined (as was common ground before the primary judge) that the respondent was the owner of the ship and Samsun Logix Corporation was the operator of the ship at the time of the incident, that both were corporations registered in South Korea, and that the ship had since been re-named and its ownership had changed. The letter continued that it was the understanding of the joint investigation team 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 Thynne + Macartney was its local legal representative. The officer wished to offer an opportunity to participate in recorded interviews concerning the matter to persons authorised on behalf of the owner (the respondent), the operator, and the chief engineer at the time of the incident, and enquired whether Thynne + Macartney acted on behalf of the Club or the respondent shipowner and operator.(c)On 14 July 2016, Thynne + Macartney replied that the firm had received instructions on behalf of the owners of the ship in relation to the letter of 16 June 2016, the owners declined the request to participate in a recorded interview, the Department’s comments that it believed the owners had committed an offence had been noted, and the Department was invited to provide details of the alleged offences and evidence obtained in that respect.(d)On 22 December 2016 an officer in the Commonwealth Director of Public Prosecutions wrote to Thynne + Macartney referring to previous correspondence between it and the Great Barrier Reef Marine Park Authority in relation to the ship (which was not in evidence). It was noted that the office had received a brief of evidence from that authority in relation to the alleged oil spill originating from the ship, that at the time of the incident one Kuk Hyun Jang was the master of the ship, the respondent was the owner of the ship, and Samsun Logix Corporation was the operator of the ship, offences had been referred in relation to all three parties, a brief had been considered by the office, and it had been determined that proceedings should be commenced against those three parties. The writer stated that complaints were currently being drafted and enquired whether Thynne + Macartney acted for any of the parties referred to and, if so, whether it held instructions to accept service of the complaints and summons.(e)On 2 February 2017 (after a reminder letter from the Director) Thynne + Macartney replied that the firm did not have any instructions in relation to the Director’s letter. On 26 April 2017 Thynne + Macartney wrote to the Director referring to the sending of the complaint and summons to the respondent and Jang to Thynne + Macartney’s office, purportedly by way of service, and observing that the firm did not hold any instructions to accept service of the charges against the defendants and that the firm also was not an agent of the ship as contemplated by the POTS Act. Those copies of the complaint and summonses were returned under cover of that letter.(f)On 18 May 2017 Thynne + Macartney wrote a letter to the registrar of the Townsville Magistrates Court, with a copy to the Director, which recorded the solicitor’s instructions to appear in relation to the complaint and summons, denied that the respondent had been properly served, and stated that the respondent wished to be heard “subject to the proviso that our appearance should not be taken as any waiver of defective service or as a submission to the jurisdiction of the court”.

Decision

Reasons for decision

The magistrate ruled that the complaint and summons had been duly served upon the respondent for the following reasons. The purpose of service of a complaint was to put the defendant upon notice of the charges against it; the respondent was “acutely aware of the proceedings”, and service was effective upon that basis. There was no other explanation for the defendant’s appearance or for the interaction of the Thynne + Macartney partner with a variety of witnesses in relation to the matter. It was “clear, just on the face of it, that they have been served”. As reasons for that conclusion, other than “the obvious fact that they [were present] and they [were] aware of it”, the magistrate remarked that it was clear that when the complaint and summons were delivered to Thynne + Macartney, that firm had taken some instructions in relation to the matter. That was why the partner had been apprised of the factual surroundings of the allegations. In the partner’s capacity as a representative of the respondent he was aware of the complaint and summons and in consequence the respondent was aware of them. The respondent was served on the basis that, at that time, the partner or his firm were acting as agents for the respondent. The magistrate also accepted submissions that Monson was served as the last known agent of the ship, reasoning that Monson’s agency persisted until someone else was appointed as agent for the ship.The primary judge’s conclusions The primary judge framed the following questions for consideration:(i)In the absence of waiver of the necessity for service, was service of the summons a precondition to the exercise of the power to proceed on the complaint?(ii)Was Thynne + Macartney “the agent of the ship” for the purposes of s 29A of the POTS Act?(iii)Was Monson an “agent of the ship” for the purposes of s 29A of the POTS Act? The primary judge gave an affirmative answer to question (i), holding that the Magistrates Court has no power to hear an examination of witnesses in the absence of service under s 56 of the Justices Act or some other statutory provision whereby documents might be served (such as s 29A of the POTS Act).[2] The primary judge gave negative answers to questions (ii) and (iii).[2]Reasons at [98]. Those answers are in issue in this appeal.Question (i): In the absence of waiver of the necessity for service, if a summons issued under the Justices Act upon a complaint that a corporation committed an indictable offence is not served in a way authorised by a different Act, is service of the summons in a way described in s 56(1)(b) of the Justices Act a precondition of the power of justices to conduct an examination of witnesses?[3][3]The reference to service in a way authorised by a different Act comprehends service under s 29A of the POTS Act, which is the subject of questions (ii) and (iii). Otherwise the appellant does not submit that any other Act authorised service. Nor does the appellant submit that the necessity for service was waived.

Ratio Decidendi

Legal Principle Established

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