Thompson, John Cranston v Noall, James Ogilvie also known as Basil Winston trading as Slim Now Laboratories [1980] FCA 207

seecnecosoec ¢

CATCHWORDS JUDGMENT No. 204, GO

Practice and Procedure - Offence against Part V of the Trade Practices Act 1974 - Service of originating process outside the jurisdiction unde

Rules of the Federal Court - Whether applicable to criminal proceedings

O

Rules of the Federal Court:Order 8, Rules 1, 2. and'4.

JOHN CRANSTON THOMPSON v. JAMES OGILVIE NOALL also known as Basil Winst trading as "Slim Now Laboratories".

N.S.W No. G54-57 of 1979

Coram: Deane J.

Sydney Friday 18 April, 1980.

IN THE FEDERAL COURT OF AUSTRALIA

) ) GENERAL DIVISION ) No. G54-57 of 1979 ) )

NEW SOUTH WALES DISTRICT REGISTRY ©

BETWEEN: JOHN CRANSTON THOMPSON a

"y

Prosecutor

AND: JAMES OGILVIE NOALL

also known as Basil Winstor trading as "Slim Now Laboratories"

Defendant

CORAM: Deane J.

Friday, 18 April, 1980.

REASONS FOR JUDGMENT

The fact that I proceed to give judgment in this matter forthwith should not be seen as indicating any lack of appreciat- ion of the skill and fairness with which counsel for the informant has presented his argument. Indeed, the thoroughness

of that argument enables me to deal with the matter without

taking time for consideration.

On 9 April, 1980, four summonses issued out of this Court against James Ogilvie Noall, also known as Basil Winston,

trading as "Slim Now Laboratories" ("the defendant"). Each

.

summons alleged that, on the particular date and in the particular place specified, the defendant committed an offence

against s.79 of the Trade Practices Act, 1974 ("the Act") in

that he did, "in contravention of s.53(c) of the Act, in

trade and commerce, in connection with the promotion by use of the postal services of the supply of goods described as "Slim Now represent that the said goods had benefits that they did not have". The summonses issued upon the Informations of John

Cranston :Thompson ("the informant") .

The defendant is apparently outside Australia. An application is made, on behalf of the informant, for leave to serve the summonses upon him outside the jurisdiction pursuant to the provisions of Order 8, Rule 2, of the Rules of the Federal Court.

The proceedings against the defendant for allegea

breaches of the provisions of Part V of the Act are criminal in

their nature (see Thompson v. Mastertouch T.V. Service Pty.

.

Limited (1978) 19 A.L.R. 547 at p. 594). 'The question which is raised by the present application for leave to serve outside the jurisdiction is of considerable general importance. That question, viewed at its narrowest, is whether jurisdiction is conferred upon this Court, either by Act of the Parliament or by Rules of the Court, to make an order authorising service, outside the jurisdiction, of the originating process in a

criminal prosecution for an offence against Part V of the Act.

Service outside the jurisdiction is not ordinarily

available in criminal matters. Indeed, the general rule is that, in the absence of special legislative provision to the contrary, criminal proceedings can only be had if the accused is both within the jurisdiction and actually present at the proceedings. Legislative provisions would, in my view, need

to be clear and unambiguous before they should, as a matter of construction, be treated as authorising service of the originating process in a criminal matter outside the jurisdict-

ion of the Court.

'The only basis advanced by the informant to support his application for leave to serve the summonses in the present matter outside the jurisdiction is what is contained in the provisions of Order 8 of the Rules of Court. Rule 1 of Order 8 lists a series of different circumstances in which originating

process may be served outside the Commonwealth. Among the

circumstances indicated are:

"(b) where the proceeding is founded on a breach of an Aet, where the breach is committed in the Commonwealth; '

(e) where the proceeding ts founded on a breach, wherever occurring, of an Act, and is brought in respect of, or for the recovery of, damage suffered wholly or partly in the Commonwealth;

(e) where the person to be served its domiciled, in- corporated or ordinarily resident in the Commonwealth, or being a corporation ecarrtes on business tn the Commonwealth or is registered in any State or Territory as a foreign company".

Rule 2 of Order 8 provides that service outside the

Commonwealth of originating process is not valid under the

Order unless: *s

-4-

"(a) the service is in accordance with the prior leave of the Court given under sub-rule (2); (b) the Court confirms the service under sub-rule (4); or (ce) the person served waives objection by entering an appearance". Sub-rule (2) of Rule 2 provides: :

"Where the Court ts sattsfted of the following matters ~

{a)

(b)

Ce)

that the proceeding is a proceéding in which the Court has jurisdiction; ,

that the proceeding ts a proceeding to which rule l applies; and

that the applicant has a prima facte case for the reltef which he seeks,

the Court may, by order, grant leave to serve ortiginat- ing process outside the Commonwealth under this Order".

Sub-rule (4) of the Rule provides:

"Where ortginating process has been served outside the Commonwealth without a prior motion for leave under sub-rule (2), and the Court ts satisfied --

(a) (b)

on the matters menttoned in sub-rule (2); and

that the fatlure to apply for leave is suffictentl explained, the Court may by order confirm the service".

Rule 4 of Order 8 provides:

"Subject to thts Order and subject to any conventton, the Rules apply to service outside Australia under this Order as they apply to service tnside Australia".

A careful examination of the provisions of Order 8 of

the Rules of Court fails to convince me that the provisions of

the Order should be construed as authorising service outside

the jurisdiction of the originating process in criminal matters.

Indeed, consideration of the provisions of the Order leads me

to a contrary conclusion in that the words used in the Order tend

to confirm rather than rebut the presumption that service out-

side the jurisdiction was intended to be confined to civil

proceedings.

(a)

(b)

(c)

For example: the words used in clause (c) of Rule 2(2), requirinc

the Court to be satisfied that the applicant has a prima facie case for "the relief which he seeks", are inappropriate to refer to proceedings which are criminal in nature. In criminal proceedings, the prosecutor, 'himself, cannot properly be seen as having any personal interest at stake for which

he seeks particular relief;

the references to "convention" in Order 8: in particular, the statement in Rule 4 that subject

to both the Order and "to any convention", the

Rules apply to service outside Australia under the Order as they apply to service inside Australia.

By definition, in Order 1, Rule 4, "convention"

is expressly restricted to an agreement, arrange- ment, treaty or convention "regarding legal proceed-

ings in civil matters";

the reference in clause (b) of Rule 1 to a proceed- ing "founded on" a breach of an Act, as opposed to

a proceeding "for" a breach of an Act, delineates the type of proceedings which the clause contemplate The words used are more apposite to civil proceed-—

ings than*to proceedings which are criminal in

nature. This reading of the words is supported by clause (c) of Rule 1 where the same words are used in a context in which they clearly refer to civil, and not criminal, proceedings. In the result, I hold that Order 8 does not authorise the giving of leave to 'serve the summonses in the present matter outSide the Commonwealth. The application for such

leave iswdismissed.

1 certify that 1 ant hercia of true copy of the reas

is Honour Mr. Justice Deane. . His hon MK. Meet

ASSOCIATE

pata (5-4 1989