Ammann v Wegener

I would answer the question in each stated case "No".

I have had the opportunity of reading the reasons for judgment of Gibbs J. and, in the light of those reasons, need say no more than that I agree with them and with his conclusions that in each of these cases the question should be answered "No".

In the course of a hearing before Meares J. in the Supreme Court of New South Wales of applications by Doris Helen Ammann and Janelle Robinson under s. 19 of the Service and Execution of Process Act, 1901-1968 (which I shall call "the Federal Act"), it was submitted by counsel on behalf of the applicants that s. 16 (2) of that Act was invalid on the ground that it was ultra vires s. 51 (xxiv.) of the Commonwealth of Australia Constitution Act. The submission raised an inter se question and by force of s. 40A of the Judiciary Act, 1903-1969, the applications were removed to this Court. When the applications came before me, at the request of the applicants and the respondent Ian Jack Wegener, I directed that the question of the validity of s. 16 (2) should be argued before a Full Court pursuant to s. 18 of the Judiciary Act. That question now arises for decision.

The proceedings have their origin in informations which were laid against Albert Raymond Anderson, a medical practitioner, for unlawfully using an instrument with intent to procure the miscarriage of each of the applicants, contrary to s. 81 of the Criminal Law Consolidation Act, 1935-1971 SA. A special magistrate for the State of South Australia, acting under s. 23 of the Justices Act, 1921-1969 SA, issued a witness summons to each applicant requiring her to appear at the Adelaide Magistrates' Court on 17th April 1972 to give evidence in the committal proceedings against Anderson. The magistrate, acting under s. 16 (1) of the Federal Act, granted leave for the service of the summonses upon the applicants in New South Wales. The summonses were served on the applicants in Sydney but neither applicant attended court at Adelaide on 17th April 1972.

On 17th April 1972 at Adelaide a warrant was issued by a special magistrate for the State, acting under s. 16 (2) of the Federal Act and in view of the powers conferred by s. 24 of the Justices Act, to bring the applicant Robinson before him at the Adelaide Magistrates' Court forthwith to give evidence in the committal proceedings. On the following day a like warrant was issued by the same magistrate to bring the applicant Ammann before him.

On 18th April 1972 the applicant Robinson was arrested by New South Wales police officers upon a provisional warrant issued under s. 19A of the Service and Execution of Process Act at Ryde in the State of New South Wales on 17th April 1972. On the following day the applicant appeared in the Sydney Central Court of Petty Sessions and was remanded on bail until the following day when the respondent Wegener, a South Australian police officer, travelled to Sydney with the warrant issued in that State. He then secured, under s. 18 (1) of the Federal Act, an indorsement of the warrant to the effect of the form in the 2nd Sch. to the Act authorizing its execution in the State of New South Wales. On the same day he apprehended the applicant upon the warrant.

Again on the same day the respondent Wegener secured a like indorsement on the warrant which had been issued in respect of the applicant Ammann. On 21st April 1972 in Sydney he apprehended the applicant Ammann under that warrant.

The two applicants were brought before the Sydney Central Court of Petty Sessions and were remanded on bail until 8th May 1972 when they appeared before the respondent Walter John Lewer, the stipendiary magistrate in Sydney Central Court of Petty Sessions. After hearing evidence and submissions by counsel on behalf of the two applicants Mr. Lewer made orders under s. 18 (3) (b) of the Federal Act requiring that each applicant be admitted to bail on a recognizance herself and surety of $100 or cash in lieu of surety, on condition that she appear at the Adelaide Magistrates' Court at 10 a.m. on 13th June 1972.

The applicants each applied under s. 19 to a judge of the Supreme Court for a review of the order made against her. It was on the hearing of these applications by Meares J. that the submission was made by counsel for the applicants which had the effect of removing the proceedings into this Court. Other sub-missions were then made in support of the case for review but they do not presently arise for consideration.

It has been said of the word "process" that "in its broader sense it includes all proceedings in the course of litigation, but in its narrower sense it is restricted to refer to the summons, writ or other mandate by which a person is brought into court and the litigation is formally commenced" - Boilermakers' Society of Australia, Queensland Branch, Union of Employees v Brisbane Welding Works Pty Ltd , per Gibbs J. [1] . Here it is not disputed that in s. 51 (xxiv.) the word includes a subpoena or summons requiring a witness to attend and give evidence.

Counsel for the applicants submitted that s. 51 (xxiv.) should be read as if the words "of the courts of the States" governed the expression "the civil and criminal process" as well as the words "the judgments". He then argued that the issue of a summons to a witness requiring the witness to give information in committal proceedings before a magistrate under the Justices Act SA did not form part of the civil and criminal process of the courts of South Australia. The conclusion was, so it was argued, that s. 16 (2) of the Federal Act, to the extent that it authorized the service outside the State of a witness summons in connexion with such proceedings, was ultra vires the legislative power conferred by s. 51 (xxiv.). No direct attack was made on the validity of s. 16 (1) and s. 18, but it was conceded by counsel that, if his submission be correct, those provisions also were invalid.

In Aston v Irvine [1] the Court in its judgment read s. 51 (xxiv.) as referring to the civil and criminal process of the States, rather than the civil and criminal process of the courts of the States. No persuasive reason has been advanced for departing from this view of the provision. There is a question whether or not the power extends to the process of Royal Commissions and tribunals which are not courts in the strict sense, but it does not arise for decision in this case. Nor is the existence of that question a reason for departing from what was said in Aston v Irvine [1] .

1. (1955) 92 C.L.R. 353. 2. (1955) 92 C.L.R. 353.

This conclusion is in itself enough to dispose of the applicants' case but there is another reason why it should be rejected. It was crucial to the second step in the applicants' argument that the witness summons was not process of a court because the summons required the attendance of the applicant to give evidence in committal proceedings before a magistrate. It was said that under s. 106 of the Justices Act the function which the magistrate performs is ministerial and that he sits as an officer, not as a court.

In my opinion the argument is misconceived. The assumption is misplaced, for in my view the summons is process of a court if it is issued by or out of a court and it commands the witness to appear and give evidence in proceedings in that court. In each case the witness summons was issued by a magistrate under s. 12 and s. 23 of the Justices Act and required the witness to give evidence in the matter of an information laid in a court of summary jurisdiction. It was, accordingly, a process of that court.

Little need be said of the other aspect of the argument, the suggestion that it is relevant, indeed important, to ascertain whether the proceedings involve an exercise of judicial power. Apart from such special requirements as may be prescribed by Ch. III of the Constitution respecting the federal judicature, there is no principle of law that confines courts to the exercise of judicial power in the strict sense of that expression. It is well known that State courts may exercise functions that are administrative in character. There is therefore no warrant for reading the word "courts" in s. 51 (xxiv.) otherwise than as a reference to the institutions of the States ordinarily described by that word.

The submissions advanced on behalf of the applicants must therefore be rejected. There is, however, another question which was discussed. It was suggested that s. 16 (2) of the Federal Act is invalid because the legislative power conferred by s. 51 (xxiv.) does not extend to authorizing the issue of process. Section 16 (2), it was suggested, is a grant of federal authority to the persons mentioned to issue a warrant.

Section 16 (2) is to be read in conjunction with s. 18 (1) and (2). Section 18 (1) provides for the indorsement in the State in which execution is to be effected of a warrant issued in another State "in accordance with section sixteen of this Act or the law of a State". Section 18 (2) provides that a warrant so indorsed is sufficient authority to the person bringing the warrant and to others, including constables and peace officers in the State in which execution is to be effected, to apprehend the person named in the warrant there. Section 18 appears in Pt III of the Act, which has the heading "Execution of Warrants and Writs of attachment".

Section 16 (2), on the other hand, appears in Pt II, which deals with "Service of Process". Moreover, it is found in Div. 2, which relates to "Service of other Process", after Div. 1, which deals with "Service of Writs of Summons". Section 16 (2) does not in terms authorize the issue of a warrant for the apprehension of a particular person; nor does it provide that the warrant shall be a sufficient authority for the apprehension of a particular person. It provides that in the circumstances mentioned in the sub-section the court or the persons designated may "issue such warrant for the apprehension of such persons" as might have been issued if the summons or subpoena had been served in the State or part of the Commonwealth in which it was issued.

The language of s. 16 (2) and the context in which it appears make it plain that its function is to ensure that a like warrant may be issued for execution outside the State or Territory as that which might have issued if the subpoena or summons had been served within the jurisdiction. It was evidently thought that under the law of the jurisdiction in which the subpoena or summons issued authority to issue a warrant for failure to comply with a subpoena or summons served outside the jurisdiction may have been lacking or defective and that further provision should be made to overcome a difficulty of that kind. It will be noted that s. 18 (1) provides for the indorsement of a warrant issued either in accordance with s. 16 (2) or State law.

The difficulties which had existed in the Australian colonies in the nineteenth century affecting the service or execution in a colony of process issued in another colony lent some force to the notion that the law of a State may not have made adequate provision for the issue of a warrant in circumstances where a subpoena or summons issued in that State was served in another State and was not complied with. It was an established rule of construction that the process of a court did not run beyond its territorial jurisdiction (City Finance Co Ltd v Matthew Harvey & Co Ltd [1] ). And the courts of one colony might declare that a statute of another colony providing for an extra-territorial operation of its process was ultra vires on the ground that it exceeded the power to legislate for the good government of the colony (see Ray v M'Mackin [1] and the judgments in Reg v Call; Ex parte Murphy [2] ).

1. (1915) 21 C.L.R. 55. 2. (1875) 1 V.L.R. (L.) 274. 3. (1881) 7 V.L.R. (L.) 113.

In the light of the law as it has been established it is not now open to question that a State may validly legislate so as to authorize the service of originating process outside the State (see City Finance Co Ltd v Matthew Harvey & Co Ltd [1] ; Ashbury v Ellis [1] ). The same comment may be made with respect to the service of a subpoena or summons to a witness, although in the absence of inter-state or Federal legislation to provide backing for a warrant, the subpoena or summons, if served outside the jurisdiction, would have lacked any effective sanction.

The rule of construction to which I have already referred applied with equal force to the issue of a warrant for execution out of the jurisdiction. What is more, the existence of legislative authority in the State of issue for the execution of the warrant out of the jurisdiction would not constitute legal authority by the law of that other State for the apprehension in another State, unless the warrant was backed by the legislation of that other State or by Federal legislation.

The Fugitive Offenders Act 1881, s. 15 made provision for the enforcement of the attendance in proceedings for an offence in one colony of a witness in another colony. There was therefore no point in a colony before Federation enacting legislation authorizing the issue of a warrant for the apprehension outside the jurisdiction of a witness who had failed to comply with a subpoena or summons served outside the jurisdiction.

The Justices Act SA contains no provision which expressly empowers a court, magistrate or a justice to issue a warrant for execution outside the jurisdiction in these circumstances. It was to this situation that s. 16 (2) was apparently addressed; it represented an endeavour to remedy what was thought to be a possible defect under existing State laws, lack of authority or defective authority to issue a warrant for failure to comply with a subpoena or summons served outside the jurisdiction.

Enough has been said to show that the purpose of s. 16 (2) is to enable the execution of a warrant outside the State or Territory of its issue where there has been a failure to comply with a subpoena or summons served outside the State. As such it makes provision for the enforcement of the command contained in the initial process issued by the State court and incidentally facilitates the execution of the new process outside the State of issue.

In my opinion, so far as it relates to subpoenas and witness summons, the power conferred by s. 51 (xxiv.) is not confined to the making of laws which merely enable the service outside a State or Territory of the process issued in that State or Territory, but extends to the making of a law authorizing the issue of a warrant for the apprehension of a witness who has failed to comply with process so served on him, thereby ensuring the attendance of the witness, that being the object of the process initially served on him. Such a law, appearing as it does in a series of provisions dealing with the service of subpoenas and witness summons issued by and out of State courts, is a law with respect to the service and execution of process because it carries into effect process which has as its object securing the attendance of a witness to give evidence in proceedings.

As I have said, s. 16 (2) is limited in its scope. It assumes that the State court has power to issue a warrant for non-compliance with initial process and authorizes the issue of a like warrant for non-compliance with initial process served outside the State pursuant to the Federal Act.

In my opinion it is a valid law and I would answer the question in the negative.