Filipowski v Frey

Relevant facts 5 The offence allegedly occurred on 30 April 2001. The matter was investigated and, on 1 May 2001, the defendant executed an authority and undertaking authorising Mr Liddy to accept service of process and appear on his behalf in any proceedings instituted by the Sydney Ports Corporation. By letter sent on 1 September 2003 the defendant revoked this authority. The Sydney Ports Corporation became aware of the revocation on 2 September 2003. 6 The defendant is believed to be outside Australia and is often at sea. Attempts to communicate directly with him have not been successful. 7 The evidence discloses that the agent for the Vessel was P&O Nedlloyd Limited and its address was originally 120 Sussex Street, Sydney. When service of documents in other proceedings was attempted at 120 Sussex Street on 30 July 2003, it became apparent that the office had changed to 160 Sussex Street and the documents were served at the new address. A search of the relevant records confirmed the change of address. 8 On 10 September 2003 Mr Liddy was served with the relevant documents at his home. Although he indicated that he was not authorised to accept service, the documents were left with him. 9 The Sydney Ports Corporation was informed of the revocation of the authority to Mr Liddy by a letter from a firm of English solicitors, dated 1 September 2003. A copy of the defendant's letter of revocation, which was not dated, was attached to the solicitor's letter. The letter of revocation refers to a copy of the original authority from which it is possible to establish that it is a copy which was attached to the affidavit of Shane Hobday sworn in these proceedings on 6 March 2003. Accordingly, the revocation must have been made after that date but before 1 September 2003. It is also apparent that the defendant must have had a copy of the authority he had given to Mr Liddy which had been taken from the affidavit.

The nature of the proceedings and the mechanism for service 10 The proceedings are class 5 proceedings in which the defendant is prosecuted in the exercise of the Court's summary jurisdiction. Accordingly, the proceedings are subject to Div 5 of Pt 4 of the Land and Environment Court Act 1989 (NSW), s 41 of which provides that Pt 5 of Ch 4 of the Criminal Procedure Act 1986 (NSW) applies. 11 The proceedings are controlled by Div 2 of Pt 75 of the Supreme Court Rules 1970 (Pt 6 r 2 of the Land and Environment Court Rules). Accordingly, Pt 9, r 1-11, r 13 and r 14 of the Supreme Court Rules which relate to service are relevant to the proceedings. 12 Class 5 proceedings are commenced by filing a summons pursuant to Pt 75 r 7 of the Supreme Court Rules. In the present case as required by the Rules, the summons seeks an order that the defendant appear before the Court to answer the charge that he caused the discharge of oil from the Vessel contrary to s 8 of the Marine Pollution Act 1987. The order, which must be made by a judge, is made pursuant to s 246(1)(a) of the Criminal Procedure Act (formerly s 41 of the Land and Environment Court Act). 13 Part 75 r 9(2) of the Supreme Court Rules ("SCR") provides that a minute of the order and any affidavits to obtain that order shall be served personally on the defendant. The summons seeking the order is to be served with the order (SCR Pt 75 r 9(1)). Apart from the requirements of Pt 75 r 9, Pt 9 r 1 requires that any originating process shall be served personally on each defendant. 14 The Supreme Court Rules provide for the manner of effecting personal service. Leaving a copy of a document with the person to be served or putting a copy down in his/her presence and telling him/her the nature of the document will be sufficient to effect service (SCR Pt 9 r 3). 15 Part 9 r 9 provides that a defendant may agree that originating process or any other document may be served in such manner or at such place as may be agreed. 16 Where technical compliance with the Act or rules may have proved difficult, the Court may direct that the document be taken to have been served if "steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of that person" (SCR Pt 9 r 11).

Section 57 of the Marine Pollution Act 1987 17 It will be obvious that when dealing with offences relating to shipping there will often be difficulties with service. International shipping is constantly on the move and will often be controlled by persons who are not Australian residents. For this reason, special provision is made for service under s 57 of the Marine Pollution Act. 18 At the time of the alleged offence in the present case, s 57 provided a means by which a "summons" against a master or owner of a ship could be validly served, other than by personal service. The Act was amended with effect from 1 November 2002, extending the operation of the section to a crew member. It now reads: "Services of summons (1) Notwithstanding section 63 of the Justices Act 1902, any summons to be served on the owner, master or crew member of a ship in respect of an offence against this Act may be served by serving it on the agent of the ship in any manner in which it might have been served on the owner, master or crew member under that section. (2) A summons served on an agent of a ship pursuant to subsection (1) shall be deemed to have been served on the owner, master or crew member to whom the summons relates of the ship. … (4) In this section: agent , in relation to a ship, includes: (a) the agent (if any) for the berthing or working of a ship while it is in port, and (b) where the ship has left port - that agent, or if there was another agent for the ship when it left port, the lastmentioned agent." 19 It is plain from the form of s 57 that it was enacted at a time when proceedings for the relevant offence, if prosecuted in the local court, would be prosecuted pursuant to the Justices Act 1902 (NSW). That Act has now been repealed. 20 Under the Justices Act, proceedings were commenced by laying an information (s 52) and the issue of a summons for the appearance of the defendant (s 60). The procedure is now found in the Criminal Procedure Act 1986, which provides that proceedings in the local court are commenced by the issue of a court attendance notice (s 172). Notwithstanding the repeal of the Justices Act, it does not appear that s 57 of the Marine Pollution Act has been amended. 21 When proceedings are prosecuted in this Court, the rules of the Court provide that the Supreme Court Rules shall apply, with such adaptations as may be necessary. Accordingly, as I have indicated, proceedings are commenced by summons claiming an order that the defendant be dealt with according to law for commission of the offence (SCR Pt 75 r 7). The summons fulfils the role of the information in the local court and the order the role of a summons issued in the local court requiring the defendant to answer the charge. The summons is not served on the defendant unless and until the relevant order has been made (SCR Pt 75 r 9). 22 The question raised in these proceedings is whether the word "summons" in s 57 should be understood as referring only to a document with the formal title "summons", and then a summons issued in the local court, or should be understood as extending to the documents by which the proceedings are initiated being a summons, an order, if it applies, and affidavits and which, but for s 57, must be personally served. Personal service is required to ensure procedural fairness, no person being required to answer a charge of which they have not been given notice. 23 Part 9 r 2 of the Supreme Court Rules provides for personal service of an "originating process". Originating process means a statement of claim, a summons or a cross-claim (SCR Pt 1 r 8). In Taylor v Environment Protection Authority (2000) 50 NSWLR 48, the Court of Criminal Appeal held in relation to a prosecution in this Court for an alleged breach of the Pesticides Act 1978 (NSW) that a "summons" under Pt 75 r 7 includes an "information" within the meaning of the relevant section in the Pesticides Act. Sperling J drew attention to the fact that the Pesticides Act had been expressly amended to allow prosecution in this Court for an alleged breach of its provisions. Accordingly, it was necessary to understand the provisions relevant to the bringing of proceedings in this Court in a manner which was compatible with the Pesticides Act. The reference to "information" in the Pesticides Act was to be construed to include a summons. 24 The word "summons" is commonly understood as a document which requires a person to attend court to answer a claim (see Butterworths' Australian Legal Dictionary and the discussion in Plenty v Dillon (1991) 171 CLR 635). Although not used in this Court where the title "application" is used instead, proceedings in the Supreme Court may be commenced by taking out a summons. Such a summons does not require the defendant to attend but serves to give the defendant notice of the matter and when it will be listed for consideration by the Court. 25 A summons issued pursuant to s 62 of the Justices Act was a "summons for the appearance of" a relevant person. The summons was required to state the matter of the information or complaint and require the defendant to attend at the nominated time and place (s 62). It was the document served on the defendant which "ordered" his or her attendance to answer the charge. 26 The Parliament must be taken to have known when enacting the Marine Pollution Act and when amending s 57 of the Act that proceedings in this Court are instituted by a summons seeking a relevant order and that the summons is not to be served on the defendant unless an order is made. It must also have known that the relevant rule of the Supreme Court required the summons, order and any affidavits in support of the summons to be personally served. However, it is the order and not the summons which requires the defendant to attend to answer the charge. Even if, contrary to the Rules, the summons was served on the defendant without the order, it would not require him to do anything. 27 Section 57 is expressed as an exception to s 63 of the Justices Act. It contains no reference to the Land and Environment Court Act or the Supreme Court Act or Rules. This would suggest that the legislature only intended the section to operate when a decision was made to prosecute for an offence in the local court. This position is confirmed by the fact that the alternate form of service is to be effected in accordance with the provision of the Justices Act, there being no reference to the Supreme Court Act or Rules. No provision is made for the service of the order made by this Court. 28 In my opinion the language of s 57(1) does not allow it to be used to effect service of proceedings commenced in this Court. This case is not like the problem in Taylor where, unless the construction adopted by the court was accepted, the clear legislative purpose would be defeated. In the present case, it is readily apparent that when a decision to prosecute in the local court is taken, different provisions with respect to service may be appropriate to those which apply when the more significant step of prosecuting proceedings in a superior court is taken. Unless the language of the section can be readily accommodated to the procedures which apply in this Court, and in my opinion it cannot, I am satisfied that the section is not available to the prosecutor to effect service of process in proceedings in this Court. The proceedings being for the prosecution of an alleged offence it is, in my view, appropriate to adopt a strict approach to the construction of s 57: Beckwith v The Queen (1976) 135 CLR 569 at 576 (per Gibbs J); Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139.

The problems of retrospectivity 29 If the alleged offence had been committed after 1 November 2002, there could be no argument that s 57 of the Marine Pollution Act did not operate to authorise service of a summons in the relevant circumstances on the ship's agent. In the present case, the alleged offence occurred on 30 April 2001 although the agent was "served" with the relevant documents only on 30 July 2003. 30 Mr Nell submits that on 1 November 2002 the reach of s 57 was confined to the "owner or master of a ship", and the amendment cannot have retrospective operation. The submission has the following elements:

(a) an amending enactment is prima facie to be construed as having a prospective operation only: Fisher v Hebburn Ltd (1960) 105 CLR 188; and

(b) the general rule is that a statute changing the law ought not, unless the intention appears with reasonable certainty to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to these past events: Maxwell v Murphy (1957) 96 CLR 261; Rodway v The Queen (1990) 169 CLR 515; Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595;

(c) there is an exception to the general rule for matters described as procedural provisions, for example the manner in which the trial for a past offence is to be conducted: Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595; Rodway v The Queen (1990) 169 CLR 515. 31 The difference between substantive law and procedure is often difficult to draw and statutes which were commonly (and formerly) classified as procedural - for example statutes of limitation - may operate in such a way as to effect existing rights and obligations. When they operate in that way, they are not merely procedural and they fall within the presumption against retrospective operation: Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595; Rodway v The Queen (1990) 169 CLR 515; Maxwell v Murphy (1957) 96 CLR 261. 32 The approach described above is also to be found in s 30 of the Interpretation Act 1987 (NSW), in particular in s 30(c). 33 Mr Nell submits that the amendments to s 57 of the Marine Pollution Act 1987 which commenced in 2002 are not amendments to the manner in which a trial of a past offence is to be conducted (see Rodway) or which otherwise only affect mere matters of procedure, such that the presumption against retrospectivity has no application to them. Rather, those amendments affect substantive rights and liabilities of a defendant to a prosecution under the Act, in particular a defendant not present within Australia. This is because the amendments to s 57 have the effect of conferring upon the Court from 1 November 2002 jurisdiction to hear a prosecution against a defendant not present within Australia in circumstances (namely upon service of the summons on the Vessel's agent within Australia) where prior to 1 November 2002 the Court did not have that jurisdiction and the defendant would not otherwise have been amenable to the Court's jurisdiction. 34 It is submitted that the Court only has jurisdiction to hear the prosecution of a defendant where that defendant is validly served with the appropriate summons, minute of order and accompanying affidavit(s). Subject to the exceptions earlier identified, these must be served personally. Personal service may only be affected on the defendant if present within the Court's jurisdiction. Service outside of the jurisdiction is not ordinarily available in criminal matters, at least in the absence of express legislative provision (see Thompson v Noall (1980) 30 ALR 162 at 163). There are express statutory provisions permitting service of originating process issued in New South Wales, including originating process in criminal proceedings issued elsewhere in Australia (Service and Execution of Process Act 1992 (Cth) s 24 and s 27). But there are no legislative provisions permitting service of a class 5 summons (let alone the other documents required by Pt 75 r 9 SCR to be served) on a defendant outside of Australia (cf Pt 10 SCR, which is not picked up Pt 75 r 2 or r 6 SCR). 35 Accordingly, it is submitted that prior to 1 November 2002, this Court would only have had jurisdiction to hear and determine a prosecution against a defendant if the defendant was in Australia and personally served or the Prosecutor was able to effect service in accordance with one or other of the limited alternative means then available. 36 Prior to 1 November 2002, in the absence of an express authority from a defendant appointing the Vessel's agent as the defendant's agent for the purpose of accepting service, service of a summons upon the Vessel's agent did not constitute valid and effective service, and therefore was not deemed personal service on a defendant, especially a defendant who was not present in the jurisdiction. Accordingly, this Court could not exercise jurisdiction to entertain such proceedings solely for that reason. 37 It is submitted that the effect of the amendments to s 57 of the Marine Pollution Act 1987, introduced on 1 November 2002, was to introduce from that date a new means by which a member of the crew of a vessel being prosecuted for having caused a discharge of oil from the vessel contrary to that Act could be validly served with proceedings and thereby made amenable to the jurisdiction of the Court in respect of that prosecution, other than by having been served with those proceedings personally. The amendments to s 57 thereby introduced a new exception to the general rule that otherwise applied, which requires originating process in criminal proceedings to be served both personally and upon the defendant in the jurisdiction (Australia). The amendments thereby provided a new means by which the Court could secure jurisdiction over a crew member who was not present in the jurisdiction, who therefore could not and had not been personally served, and who was therefore not otherwise amenable to the Court or its jurisdiction. 38 Finally, it is submitted that such amendments are more than a mere matter of procedure. Even if the permitted manner of service is classified as a procedural provision, it is nonetheless a procedural provision that affects substantive rights and whose amendment affects substantive rights. 39 I acknowledge the assistance of Mr Nell's carefully prepared submission in this matter. However, in my opinion the amendment to s 57 was relevantly procedural and merely provides for the manner of affecting service of process in proceedings in respect of breaches of the Act which may have occurred. 40 The relevant principles applicable to determining whether or not a legislative enactment has retrospective operation are conveniently considered in the High Court's decision in Rodway, where the Court observed (at CLR 518): "The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events." 41 The Court went on to say (at CLR 519-520): "It was recognition of the fact that the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have a retrospective operation which no doubt led Dixon CJ in Maxwell v Murphy to formulate the general rule in terms which did not rest simply upon that classification. He said: 'The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done." [footnotes omitted] 42 Finally, the Court said (at CLR 521): "… The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: see also Wright v Hale, per Wilde B; Attorney-General v Sillem, per Lord Wensleydale; Warner v Murdoch, per James LJ." [footnotes omitted] 43 It is suggested by Mr Nell that a person who may have committed an offence within the State has a "right", which will be protected by the courts, not to be prosecuted for the offence so long as the defendant is absent from the jurisdiction. Although, subject to other means of service, absence from the jurisdiction may render a defendant unable to be prosecuted, this does not amount to a right. The means by which a defendant may be served merely regulates one of the procedural aspects relating to the manner by which he may be prosecuted for an alleged offence. 44 There are two further difficulties in Mr Nell's submission. The first is that at the time when the offence was committed, the defendant was liable to have process served upon him pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth). Although the procedure may be complex, nevertheless it would have been available. However, perhaps the more substantive matter is that at the date of the amendment, by reason of the authority given to Mr Liddy, the defendant was amenable to service within the jurisdiction. Any suggestion that the amendment eliminates a right not to be prosecuted so long as the defendant remains absent from the jurisdiction, is at odds with the existence of the authority.

The argument based on Part 9 rule 9.11 45 The Prosecutor submits that, on the facts of this case, the Court should make an order pursuant to Pt 9 r 11 directing that the summons and related order and affidavits be taken to have been served on the defendant. Part 9 r 11 is in the following terms: "9.11 Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by the rules, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of that person, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order." 46 In support of this submission, the Prosecutor draws attention to the following facts:

(a) The defendant is presently overseas but his address is unknown.

(b) Service of the summons, order and affidavits was affected on P&O Nedlloyd on 30 July 2003.

(c) At least at the time of the alleged offence, the defendant was the employee of P&O Nedlloyd.

(d) On 1 May 2001 the defendant gave written authority to Mr Liddy, a solicitor of Ebsworth and Ebsworth, to accept service.

(e) The revocation of the authority to Mr Liddy was only revoked on 1 September 2003, approximately one month after P&O Nedlloyd was served.

(f) When notice of the revocation was communicated by London solicitors apparently acting for the defendant, a copy of the authority which the defendant gave to Mr Liddy was forwarded with an annexure note, making plain that the defendant had received a copy of an affidavit of Mr Hobday sworn 6 March 2003. The copy of the authority forwarded by the solicitors has the annexure note included on it.

(g) Mr Liddy was served with the relevant documents on 10 September 2003. 47 I am satisfied that this is an accurate statement of the relevant facts. 48 Mr Nell submits that Part 9 rule 9.11 may not be used to make the contemplated order when the reason for the impracticability of serving the defendant is the fact that he is outside the jurisdiction of the Court. It is submitted that in the absence of direct authority on the point, the Court should be guided by cases relating to applications for substituted service pursuant to Part 9 rule 10 of the Supreme Court rules. 49 In relation to substituted service the following principles are relevant:

(a) In order to establish impracticability in the context of an application for substituted service, some attempt to effect service in accordance with the rules should be made or it must be shown to be obviously futile to attempt service: Ricegrowers Co-operative Ltd & Seatide Pty Ltd v ABC Container line NV & MED Containerline Antwerp NV (1996) 138 ALR 480.

(b) Substituted service is not a means of enlarging the territorial jurisdiction of the Court. If personal service is not available because the defendant is beyond the jurisdiction of the Court, substituted service cannot be obtained: Laurie v Carroll (1958) 98 CLR 310.

(c) Substituted service must not be used to side step the requirements for service abroad (where that is permitted under the rules or some Act): Australian Securities and Investment Commission v Sweeney (No 2) (2001) 38 ACSR 743; Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155. 50 I accept the submission of Mr Nell that the same approach to the question of whether service is "impracticable" should be adopted for both r 9.10 and r 9.11. 51 In the present case, beyond the fact that the defendant is overseas and may travel in the course of his employment, I am not satisfied that it has been shown that it is "impracticable" in the relevant sense to effect service upon him. Although limited attempts to communicate with him directly appear to have failed and the London solicitors who wrote advising of the revocation of his authority to Mr Liddy do not otherwise act for him, no evidence of other inquiries has been put before the Court. 52 In any event it may be that although the defendant is aware in some general manner of these proceedings, I do not believe that the circumstances which would justify an order under r 9.11 exist in the present case. I accept that when notifying the withdrawal of his authority the defendant attached a copy of the authority taken from an affidavit filed in the proceedings. However, I know nothing of the circumstances in which he came upon that document. It is conceivable that it was the only document given to him. There is nothing which would presently satisfy me that he is aware of the summons and the order made by the Court.

Service on Mr Liddy 53 It is a curious aspect of this case that although Mr Liddy was vested with authority to accept service on 1 May 2001 his authority was only withdrawn on 1 September 2003, and then after service had been affected on P & O Nedlloyd on 30 July 2003. If Mr Liddy had been served on 30 July 2003, the present argument would have been avoided. 54 The authority originally obtained from the defendant during the course of the investigation to serve Mr Liddy was, no doubt, intended to ensure that service on Mr Liddy would be sufficient, having regard to the provisions of r 9.9. However, there was no impediment to the defendant withdrawing this authority and once withdrawn the consequence must be that service on Mr Liddy was not effective.

Conclusion 55 It follows that for these reasons I am not satisfied that the defendant has been properly served. **********

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