67 FOSTER AJA: This is an application brought pursuant to s69 of the Supreme Court Act, 1970. It seeks relief in the nature of certiorari in respect of a judgment given in the District Court of New South Wales Criminal Jurisdiction by Keleman DCJ on Friday, 24 July 1998.
68 His Honour had presided over a trial in which the applicant, Cecil Gregory Solomons had been found not guilty, by direction, in respect of two counts of being knowingly concerned in the importation of a trafficable quantity of the drug ecstasy, pursuant to s233B (1)(d) of the Customs Act 1901 (Cth) ("The Customs Act"). After the claimant had been so acquitted, he made application to the judge for a certificate under s2 of the Costs in Criminal Cases Act 1967 (NSW) ("The Costs Act"). His Honour refused this application on the basis that, the prosecution having been brought under the Commonwealth Act, and, consequently, having been dealt with by the court in the exercise of federal jurisdiction, he lacked jurisdiction to grant the relief sought. It is asserted by the claimant that his Honour was in error and that, he had, as a matter of law, the necessary jurisdiction to hear and determine the application.
69 The relevant sections of the Costs Act are set out in full in the judgment of Sheller JA and I shall not set them out again in these reasons. I shall later refer to their effect.
70 It was submitted on behalf of the claimant that the Costs Act applied by its own force, to the proceedings for the prosecution of the claimant under the Customs Act. I am in agreement with Mason P and Sheller JA that this submission must be rejected. The Costs Act can apply, in itself, only to proceedings heard in the Courts of New South Wales; furthermore, the words in s2 "any proceedings relating to any offence" refer to an offence defined by the common law or prescribed by a New South Wales Statute (Interpretation Act 1987 (NSW), s12(1)).
71 The question is, therefore, whether any provisions of federal law can produce the result that the Costs Act is rendered applicable to the situation of the claimant's acquittal of the charge brought pursuant to the Customs Act.
72 It is clear, of course, that the New South Wales District Court had jurisdiction to hear the charge against the claimant as a result of its being invested with federal jurisdiction for this purpose. Its jurisdiction to do so was provided by the Commonwealth of Australia Constitution Act ("the Constitution") and the Judiciary Act 1903 (Cth) ("the Judiciary Act"). Section 71 of the Constitution provides, so far as relevant, that "The judicial power of the Commonwealth shall be vested in …such other courts as [the Parliament] invests with federal jurisdiction. …". Section 77 (iii) makes further provision in this regard. It provides, so far as relevant, that the Parliament may make laws investing any court of a State with Federal jurisdiction with respect to any of the matters mentioned in ss75 and 76 of the Constitution. Section 76(ii) provides for the conferring of jurisdiction in respect of any matter "arising under any laws made by the Parliament."
73 Pursuant to this Constitutional power the Parliament has conferred Federal jurisdiction on State Courts by the enactment of ss39 and 68 of the Judiciary Act.
74 Section 39 (2) relevantly invests State Courts "within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise" with "federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it…".
75 Section 68 of the Judiciary Act makes additional provision in respect of the criminal jurisdiction to be exercised by State Courts in relation to offences created by Commonwealth legislation. Section 68 (2) provides, so far as relevant, as follows:-
"The several Courts of a State …exercising jurisdiction with respect to:
(a) ….
(b) ….
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State …shall …have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth."
76 In dealing with the claimant in respect of the charge laid pursuant to s233 B (1)(d) of the Customs Act, the District Court was exercising jurisdiction pursuant to these sections. The question for determination in this appeal is whether his Honour was correct in holding that the application made to him on behalf of the claimant under the Costs Act fell outside the jurisdiction he was so exercising.
77 Connected with this question are considerations as to whether s68(1) and s79 of the Judiciary Act have the effect of bringing within the ambit of the jurisdiction so exercised applications under the Costs Act, notwithstanding that such applications, considered alone, relate only to offences cognisable under State jurisdiction.
78 Section 68 (1), so far as relevant provides as follows:-
"The laws of a State …respecting (the arrest and custody of offenders or) persons charged with offences, and the procedure for:
(a) …
(b) …
(c) their trial and conviction on indictment;…
(d) …
shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State…by this section."
79 Section 79, so far as relevant, provides as follows:-
"The laws of each State…including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State…in all cases to which they are applicable."
80 In my view s68 (1), as a matter of construction, is not capable of conferring upon the District Court jurisdiction to entertain an application under the Costs Act. Such an application, in my opinion, cannot be regarded as falling within the concept of "procedure for…trial and conviction on indictment."
81 However, s79 casts a wider net. Although the laws referred to include those relating to procedure, evidence and competency of witnesses, they are not restricted to those categories. If the Costs Act is otherwise "applicable" and not excluded by the Constitution or the laws of the Commonwealth, it can be "picked up" by the section and converted into a "surrogate Commonwealth law" (per Murphy J, Maguire v Simpson (1976-1977) 139 CLR 362 at 408), notwithstanding that it can apply, by its own force, only in respect of offences under New South Wales law.
82 It is necessary to consider the effect of decisions dealing with the operation of the section.
83 Commissioner of Stamp Duties (NSW) v Owens & Anor (1953) 88 CLR 168 was accepted by Keleman DCJ, in the present case, as necessarily excluding jurisdiction under the Costs Act. The High Court had allowed an appeal from a decision of the Supreme Court of New South Wales, reversing its decision in favour of the respondent. The respondent applied to the High Court for an "indemnity certificate" under the Suitors' Fund Act 1951 (NSW) ("the Suitors' Fund Act), s6 of which authorised the grant by an appellate Court of such a certificate to a respondent, where an appeal had succeeded on a question of law. The certificate entitled the respondent to be paid, from the Suitors' Fund, costs which he might be ordered to pay to the appellant and also his own costs of the appeal, up to a certain sum. It was held that the Act could not apply, of its own force, to impose upon the High Court a duty to hear and consider an application for such a certificate, nor did s79 of the Judiciary Act require that the New South Wales legislation become binding on the High Court, as a Court exercising federal jurisdiction. The Court said (at 170):-
"The function which s6 imposes upon State courts forms a step in the machinery provided for indemnifying an unsuccessful litigant in respect of costs out of a fund set up and administered by the State. That is outside the scope of s79. The purpose of that section is to adopt the law of the State where federal jurisdiction is exercised as the law by which, except as the Constitution or federal law may otherwise provide, the rights of the parties to the lis are to be ascertained and matters of procedure are to be regulated.
Whether or not s79 applies to the appellate jurisdiction of this Court, it is no part of its purpose to pick up, so to speak, a provision of State law imposing on State courts such a function as that assigned to them by s6 (1) and convert it into a provision imposing a like function on federal courts. The circumstance that an application for a certificate of indemnity is made consequential upon the litigation does not alter the character of that proceeding and certainly is not enough to bring it within s79. It forms no part of the subject matter with which s79 deals."
84 It is submitted on behalf of the appellant that Owens is necessarily restricted in its application to situations where the High Court itself is being asked to make an order under the State legislation, the case not being determinative in situations where a State court is exercising federal jurisdiction pursuant to s39 or s68 of the Judiciary Act. Support for this submission is gained from the reasons of Dixon CJ in Gurnett v The Macquarie Stevedoring Co Pty Limited No. 2 (1956) 95 CLR 106 at 110-111, a decision to which I shall return. I indicate at this stage, however, that I agree, with respect, in the reasons given by Sheller JA for holding that Owens is not necessarily dispositive of the question in the present case.
85 The case of Pedersen v Gunn (1964) 110 CLR 162 must next be considered. This was an action for negligence arising out of a motor vehicle accident in Queensland. It was brought in the High Court as an action between residents of different states pursuant to s75(iv) of the Constitution. It was commenced in the New South Wales Registry of the High Court more than three years after the date of the accident alleged in the statement of claim. The defendant, in his defence, relied upon The Law Reform (Limitations of Actions) Act 1956 of the State of Queensland which imposed a relevant limitation period of three years. The plaintiff demurred, asserting that the Queensland statute could afford no defence. The defendant relied upon s79 of the Judiciary Act to "pick up" the Queensland defence.
86 Kitto J held that s79 could not have the effect contended for, even if the action were tried in Queensland. This was so, "because the Judiciary Act does not purport to do more than pick up State laws with their meaning unchanged." His Honour cited Owens for this proposition and continued by stating that s79 could not give to the Queensland section "a new meaning, converting it into a provision limiting the time for the commencement of actions outside Queensland." He said that "for that reason" the Queensland statute did not "even by force of the Judiciary Act, afford a defence to an action commenced, as the present action was commenced, outside the time it allows but in New South Wales."
87 It is important, in my opinion, that Kitto J's statement of principle be read as a whole. The portion which refers to the Judiciary Act not purporting "to do more than pick up State laws with their meaning unchanged" must be read in context. The statute purported to apply only to actions commenced in Queensland. To extend its operation to actions commenced outside that State would be, necessarily, to change its meaning.
88 The other judgments in the case are instructive. Taylor J, whilst agreeing that the demurrer should be upheld, did so "on the simple ground" that the Queensland statute had "no application to actions properly commenced in this Court in a State other than Queensland." His Honour preferred to leave unanswered the question of the effect of s79 of the Judiciary Act "if the action had been commenced in this Court in Queensland."
89 Menzies J, however, did enter upon a consideration of this question. His Honour said (at 167):
"If it should happen that the action is heard and determined in Queensland, this Court will then be exercising its jurisdiction there and such laws of that State as are applicable will apply (Judiciary Act, ss79 and 80). As at present advised I do not think that the laws of a State relating to proceedings in State courts cannot apply in this Court by virtue of ss79 and 80 merely because, upon their true construction, as State Acts they relate only to the courts of the State. It may well be a part of the office of ss79 and 80 to make applicable in this Court some State statutes which, upon their true construction, apply of their own force only to courts governed by the laws of the State in which the court is exercising its federal jurisdiction although it is clear that some such statutes are outside the scope of these sections: Commissioner of Stamp Duties (NSW) v Owens [No. 2]. "
90 Windeyer J did not find it necessary to refer to s79 of the Judiciary Act in reaching his decision. Owen J, however, indicated that had the proceedings commenced in the Brisbane Registry, s79 would have had the effect of making available a defence based upon the Queensland statute "despite the fact that that section is directed and could only be directed to the barring by lapse of time of actions commenced in the courts of the State of Queensland." His Honour continued (at 171):
"It is plain, that the only actions to which the section applies are those which are commenced in Queensland. This action was not so commenced and for this reason alone I am of opinion that the demurrer should be upheld."
91 I conclude that Pedersen is not authority for a proposition that a State Act such as the Costs Act is not capable of being applied by a Court of that State when exercising federal jurisdiction, simply because, as a matter of construction, the State Act applies, by its own force, only to proceedings in State Courts exercising State jurisdiction. This fact alone does not preclude s79 from operating to convert the State Act into "surrogate federal law."
92 In my opinion, the decision of the High Court in John Robertson & Co Limited (In Liquidation) v Ferguson Transformers Pty Limited (1973) 129 CLR 65 supports this view of the operation of s79. The case also involved the provisions of a limitations statute. Proceedings had been commenced in the Adelaide Registry of the High Court and there was an issue as to whether the action was barred by the Limitation Of Actions 1936 of South Australia Act. The situation was, therefore, different from Pedersen in that the action was commenced in the State where the limitation applied. However, the Limitation of Actions Act did not apply, of its own force, to proceedings commenced in the High Court. Menzies J adhered to the views he had expressed in Pedersen. Walsh J (at p 83) said:-
"When s79 applies it 'does not purport to do more than pick up State laws with their meaning unchanged': see Pedersen v Young (1964) 110 CLR 162 at p.165, per Kitto J. The extent of the operation of State laws governed by s79 is, of course, changed. Its purpose is to extend their operation so that they apply in courts exercising federal jurisdiction in that State."
93 Gibbs J (at p. 88) dealt with the matter in the following passage:-
"It is.. settled, that s79 does not give a new and more extensive meaning to State laws which it renders binding on a court exercising federal jurisdiction; it applies those laws with their meaning unchanged: Commissioner of Stamp Duties (N.S.W.) v Owens [No 2] (1953) 88 CLR 168, Pedersen v Young (1964) 110 CLR at pp 165-166; Re Young's Horsham Garage Pty Ltd , [1969] VR 977 at p 979. To that last proposition it is, however, necessary to add a qualification. Section 79 may render applicable in a court exercising federal jurisdiction a State statute which either by its express provisions or upon its proper construction is limited in its application to the courts of the State: see per Menzies J. in Pedersen v Young (1964) 110 CLR at pp 167-168. If the laws of a State could not apply if, upon their true construction as State Acts, they related only to the courts of the State, it would seem impossible ever to find a State law relating to procedure, evidence or the competency of witnesses that could be rendered binding on courts exercising federal jurisdiction, because most, if not all, of such laws, upon their proper construction, would be intended to apply in courts exercising jurisdiction under State law."