SOLOMONS v DISTRICT COURT OF NEW SOUTH WALES & ORS

Cecil Gregory Solomons - Claimant PARTIES : District Court of New South Wales - First Opponent State of New South Wales - Second Opponent The Queen - Third Opponent JUDGMENT OF : Mason P at 1; Sheller JA at 27; Foster AJA at 67

LOWER COURT JURISDICTION : District Court LOWER COURT 98/11/0264 FILE NUMBER(S) : LOWER COURT Keleman SC DCJ JUDICIAL OFFICER :

J Basten QC/S Beckett - Claimant COUNSEL : C P O'Donnel - First Opponent P Bushberger - Second Opponent (Submitting) SOLICITORS : John Bettens & Co - Claimant Commonwealth Director of Public Prosecutions - First Opponent CATCHWORDS : FEDERAL JURISDICTION - Vested in State court - Prosecution on indictment of person charged with Commonwealth offence - Trial conducted by State court in exercise of federal jurisdiction - Combined effect of Costs in Criminal Cases Act 1967 (NSW) and Judiciary Act 1903 (Cth) - Whether State court can entertain application under Costs in Criminal Cases Act - CRIMINAL LAW - Practice and procedure - Costs - Prosecution on indictment of person charged with Commonwealth offence - Power of State court to grant certificate under Costs in Criminal Cases Act 1967 (NSW), s2 - "proceedings relating to any offence" - Judiciary Act 1903 (Cth), ss 39, 68, 79 - R Costs in Criminal Cases Act 1967 Criminal Appeal Act 1912 (NSW) Customs Act 1901 (Cth) LEGISLATION CITED : Interpretation Act 1987 Judiciary Act 1903 (Cth). Law Reform (Limitation of Actions) Act 1956 Suitors' Fund Act 1951 Supreme Court Act 1970 Ah Yick v Lehmert (1905) 2 CLR 593 Australian Postal Commission v Dao [No 2] (1986) 6 NSWLR 497 Bass v Permanent Trustee Co Ltd [1999] HCA 9, 161 ALR 399; 73 ALJR 522 Breavington v Godleman (1998) 169 CLR 41 Commissioner of Stamp Duties (NSW) v Owens (1953) 88 CLR 67 Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 Felton v Mulligan (1971) 124 CLR 367 Fencott v Muller (1983) 152 CLR 570 Gould v Brown (1998) 193 CLR 346 Gurnett v The Macquarie Stevedoring Company Pty Limited [No 2] (1956) 95 CLR 106 John Robertson & Co Ltd (In Liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 CASES CITED: LNC Industries Ltd v MBW (Australia) Ltd (1983) 151 CLR 575 Maguire v Simpson (1977) 139 CLR 362 Peel v The Queen (1971) 125 CLR 447 Pedersen v Young (1964) 110 CLR 162 R v Moffatt [1998] 2 VR 229 Re Wakim; ex parte McNally (1999) 73 ALJR 839 Rohde v Director of Public Prosecutions (1986) 161 CLR 119 Seaegg v The King (1932) 48 CLR 251 The Commonwealth v Mewett (1997) 191 CLR 471 The Queen v Bull (1974) 131 CLR 203 The Queen v Murphy (1985) 158 CLR 596 Williams v The King [No 1] (1933) 50 CLR 536 Williams v The King [No 2] (1934) 50 CLR 551 DECISION : Summons dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40992/99 DC 98/11/0264

MASON P SHELLER JA FOSTER AJA

SOLOMONS v DISTRICT COURT OF NEW SOUTH WALES & ORS The issue in this case was whether a District Court Judge had power to grant a certificate under s2 of the Costs in Criminal Cases Act 1967 (NSW) in respect of proceedings for the prosecution on indictment of a person charged with a Commonwealth offence. Section 2 of the Costs Act gave the court "in any proceedings relating to any offence" the power to grant to the defendant a certificate provided, inter alia, that the defendant was acquitted in circumstances where, had all the relevant facts been known, institution of the proceedings by the prosecution would not have been reasonable. Such a certificate then enabled the defendant to apply for payment of costs incurred in the proceedings. Section 39(2) of the Judiciary Act 1903 (Cth) stated: "The several Courts of the States shall within the limits of their several jurisdictions … be invested with federal jurisdiction …" subject to certain exceptions. Section 68(1) provided for the application, to persons charged with Commonwealth offences, of State laws respecting the arrest and custody of offenders and the procedure for their trial and conviction. Section 68(2) stated that State courts exercising jurisdiction with respect to the trial and conviction on indictment of persons charged with State offences should, subject to the section and s80 of the Constitution, have "the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth". Section 79 made State laws, where applicable, binding on State courts exercising federal jurisdiction except as otherwise provided for by the Constitution or Commonwealth laws. Costs Act Held: (by Mason P, Sheller JA, and Foster AJA) The words "proceedings relating to any offence" in s2 of the Costs Act refer only to proceedings of a State court exercising State jurisdiction in relation to a State offence. Interpretation Act 1987 (NSW), s12(1), applied. Combined effect of the Costs Act and the Judiciary Act Held: Section 68 of the Judiciary Act

1. Section 68(1) of the Judiciary Act is confined in its scope to "the procedure for … trial and conviction on indictment". This is incapable of picking up the provisions of the Costs Act because that Act is not a law respecting trial procedure (so held by Mason P and Foster AJA, Sheller JA dissenting).
2. The Costs Act does not form a necessary part of the State court's jurisdiction with respect to trial and conviction on indictment and accordingly s 68(2) does not apply (so held by Mason P and Foster AJA, Sheller JA dissenting). Section 79 of the Judiciary Act
3. The scope of s79 of the Judiciary Act is limited by its ability to only pick up State laws with their meaning unchanged. As surrogate Commonwealth law, the Costs Act would not extend to offences arising under Commonwealth laws (so held by Mason P). Pederson v Young (1964) 110 CLR 162, applied.
4. An application under the Costs Act is not incidental to the federal jurisdiction invested in the Judge and is not picked up by s79 of the Judiciary Act (so held by Foster AJA). Legislation:

Costs in Criminal Cases Act 1967 Criminal Appeal Act 1912 (NSW) Customs Act 1901 (Cth) Interpretation Act 1987 Judiciary Act 1903 (Cth) Law Reform (Limitation of Actions) Act 1956 Suitors' Fund Act 1951 Supreme Court Act 1970

Ah Yick v Lehmert (1905) 2 CLR 593 Australian Postal Commission v Dao [No 2] (1986) 6 NSWLR 497 Bass v Permanent Trustee Co Ltd [1999] HCA 9, 161 ALR 399; 73 ALJR 522 Breavington v Godleman (1998) 169 CLR 41 Commissioner of Stamp Duties (NSW) v Owens (1953) 88 CLR 67 Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 Felton v Mulligan (1971) 124 CLR 367 Fencott v Muller (1983) 152 CLR 570 Gould v Brown (1998) 193 CLR 346 Gurnett v The Macquarie Stevedoring Company Pty Limited [No 2] (1956) 95 CLR 106 John Robertson & Co Ltd (In Liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 LNC Industries Ltd v MBW (Australia) Ltd (1983) 151 CLR 575 Maguire v Simpson (1977) 139 CLR 362 Peel v The Queen (1971) 125 CLR 447 Pedersen v Young (1964) 110 CLR 162 R v Moffatt [1998] 2 VR 229 Re Wakim; ex parte McNally (1999) 73 ALJR 839 Rohde v Director of Public Prosecutions (1986) 161 CLR 119 Seaegg v The King (1932) 48 CLR 251 The Commonwealth v Mewett (1997) 191 CLR 471 The Queen v Bull (1974) 131 CLR 203 The Queen v Murphy (1985) 158 CLR 596 Williams v The King [No 1] (1933) 50 CLR 536 Williams v The King [No 2] (1934) 50 CLR 551

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40992/99 DC 98/11/0264 MASON P SHELLER JA FOSTER AJA

SOLOMONS v DISTRICT COURT OF NEW SOUTH WALES & ORS JUDGMENT

1 MASON P: At issue is the power of the District Court to grant a certificate under the Costs in Criminal Cases Act 1967 (the Costs Act) to a person tried and acquitted in that Court on an indictment charging offences under a Commonwealth Act. 2 I have had the benefit of reading the judgment of Sheller JA which sets out the facts and statutory provisions and discusses the leading cases. 3 In my view the summons should be dismissed. 4 The starting point is the Costs Act. On its true construction, this Act speaks only to the Courts of New South Wales; and the reference in s2 to "any offence" is to be read as a reference to an offence arising under the common law or a New South Wales enactment. This limited ambit of s2 is confirmed by s12(1) of the Interpretation Act 1987. 5 Of course, the mere fact that such a prosecution involved the exercise of federal jurisdiction would not take the matter outside the primary scope of the Costs Act, because it is well known that federal jurisdiction will spring up as soon as a party invokes an issue involving the Constitution or a federal Act (LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575). 6 Does federal law change this? 7 The claimant invokes provisions of the Judiciary Act 1903 (Cth), especially ss39(2), 68 and 79. 8 So far as presently relevant, s39(2) and s68(2) deal with the investing of federal jurisdiction in State courts. Section 68(2) supplements the general provisions of s39(2). In the present case, it invested the District Court of New South Wales with federal jurisdiction in relation to the claimant's trial on indictment for offences arising under s233B(1)(d) of the Customs Act 1901. Whether s68(2) has impact upon the present matter is a question to which I shall return. 9 Section 68(1) and s79 address the content of the law to be applied in the exercise of federal jurisdiction in different, but overlapping, situations. In their application to State courts, the two provisions are expressly limited to the exercise of federal jurisdiction. They thereby ensure that the confines of Commonwealth legislative power are not exceeded, because s77(iii) of the Constitution, which confers power to make laws investing any court of a State with federal jurisdiction, applies only "with respect to" any of the nine matters mentioned in s75 and s76 of the Constitution. The extent to which s51(xxxix) of the Constitution may confer ancillary power to invest federal jurisdiction is an unresolved question on which conflicting opinions have been expressed (see The Queen v Murphy (1985) 158 CLR 596 at 613-4). What is clear is that: …the power conferred by s77(iii) is limited by the principle, which has been distilled from Ch III and the dispositions it makes with respect to the judicial power, that only judicial functions and functions incidental thereto may be invested in a State court ( The Queen v Murphy at 614) .

10 Within their constitutional and statutory limits, s68(1) and s79 incorporate State enactments by reference and cause them to become, for the purpose of the exercise of federal jurisdiction, "surrogate Commonwealth law" (Murphy J used this expression in: Maguire v Simpson (1977) 139 CLR 362 at 408). 11 It is convenient to look first at s79. Section 79 is not confined to State and Territory courts, nor is it limited to procedural laws. 12 There is, however a presently relevant limitation in the scope of s79. Section 79 "does not purport to do more than pick up State laws with their meaning unchanged" (Pedersen v Young (1964) 110 CLR 162 at 165. See also Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 at 170; Maguire at 376; The Commonwealth v Mewett (1997) 191 CLR 471 at 556). 13 This limitation precludes s79 from drafting the Costs Act into federal service as regards a Commonwealth offence. That is because, as surrogate Commonwealth law, the Costs Act would still not extend to offences arising under laws of the Commonwealth (see par 4, above). 14 Section 68(1) supplements s79 in incorporating by reference State laws "so far as they are applicable" to persons such as the claimant. But s68(1) is narrower in its terms than s79. (That is not to say that it excludes s79, but merely that s68(1) as an independent enactment has a narrower scope than the later provision.) That narrower scope is relevantly confined to "the procedure for … trial and conviction on indictment" . This is incapable of picking up the provisions of the Costs Act because that Act cannot be characterised as a law respecting trial procedure. It is true that s2 of the Costs Act confers a power which is exercisable "in" any proceedings relating to any offence, but that does not convert s2 or the Costs Act as a whole into a matter of procedure. The Costs Act confers a substantive right against a non-party exercisable (relevantly) "where a defendant, after a hearing on the merits, is acquitted or discharged as to the information then under inquiry" (emphasis added). 15 Does s68(2) take the claimant any further? As indicated above, the primary operation of that subsection is to invest or confer jurisdiction. However, enactments may have a double function of dealing with substantive liabilities or substantive legal relations and of granting jurisdiction with reference to them (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (1995) 184 CLR 620 at 655). 16 The case law relating to s68(2) illustrates that, in the conferring of federal jurisdiction involving a Commonwealth offence, rights may incidentally be given to both the prosecutor and the defendant. For example, rights of appeal conferred by a State enactment may be made applicable to federal offences by s68(2) (see Peel v The Queen (1971) 125 CLR 447, Rohde v Director of Public Prosecutions (1986) 161 CLR 119). As Sheller JA demonstrates, the judgments in Williams v The King [No 1] (1933) 50 CLR 536 ("Williams [No 1]") and Williams v The King [No 2] (1934) 50 CLR 551 ("Williams [No 2]") explain how this comes about through the conferral on State Courts exercising State jurisdiction with respect to trial on indictment etc of "the like jurisdiction" with respect to persons charged with offences against the laws of the Commonwealth. 17 In Williams [No 2] Dixon J said (at 561): When sec 68(2) speaks of the 'like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth,' it recognises that the adoption of State law must proceed by analogy.

See also Williams [No 1] at 543 (Starke J), 549 (Evatt and McTiernan JJ); Rohde at 124 (Gibbs CJ, Mason, Wilson J) for other references to adoption of State law by analogy. 18 The claimant submits that he is seeking merely to apply the Costs Act by analogy. This throws up the statutory and constitutional ambit of s68(2), a topic upon which the Court received comparatively little assistance. (The State of New South Wales declined the opportunity to put submissions, leaving it to the Crown in right of the Commonwealth to assist the Court in a matter in which its interest as contradictor is difficult to perceive.) 19 Following the decision in Seaegg v The King (1932) 48 CLR 251, s68 of the Judiciary Act was amended (by the Judiciary Act 1932): (a) by inserting in sub-section (1) after paragraph (c) the following paragraph: "and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith"; and (b) by inserting in sub-section (2), after the word "State" (second occurring) the words ", and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith,". 20 The words "out of any proceedings connected therewith" in each added provision clearly qualify "appeals" and thereby identify an extended category of State appellate jurisdiction made applicable to matters involving persons charged with offences against the law of the Commonwealth. The range of first instance criminal proceedings applied by analogy to federal offences was not enlarged. For present purposes, the field remains that of State Courts "exercising jurisdiction with respect to … the trial and conviction on indictment". 21 I do not see how an application for the grant of a certificate under the Costs Act is with respect to any part of federal jurisdiction invested by s68. As indicated above, it certainly does not constitute part of the procedure for trial and conviction on indictment (within s68(1)). Nor does it form a necessary part of the jurisdiction with respect to trial and conviction on indictment (within s68(2)). 22 The right of a defendant to apply for a certificate under the Costs Act only arises after acquittal or discharge (Costs Act, s2(a)) and the subject of inquiry is the information available to the prosecutor before the proceedings were instituted (ibid, s3(1)(a)). The application is quite collateral to the trial itself, and its determination (in a lis to which the prosecutor need not be a party) forms no part of the disposition of the trial. 23 In Gurnett v The Macquarie Stevedoring Company Pty Ltd [No 2] (1956) 95 CLR 106 the High Court was considering the role of the Full Court of the Supreme Court of New South Wales when addressing an application for a certificate under the Suitors' Fund Act 1951. The majority held that the function of the Full Court under s6(1) of the Suitors' Fund Act was not "consequential upon and intimately bound up with the disposition of the appeal" to that Court (the words of Dixon CJ (dissenting) at 112). The other members of the High Court regarded the function under the Suitors' Fund Act as not part of the function of disposing of the appeal (see the passages set out in the judgment of Sheller JA). There are differences between the Suitors' Fund Act and the Costs Act, but the analysis in Gurnett reinforces the conclusion that the determination of an application under s2 of the Costs Act is not something that should be viewed as part of the exercise of jurisdiction with respect to trial and conviction on indictment, within s68(2) of the Judiciary Act. 24 Australian Postal Commission v Dao [No 2] (1986) 6 NSWLR 497 was solely concerned with the scope of the Suitors' Fund Act as a matter of State law. The Court of Appeal granted a certificate with respect to a successful appeal from a State Tribunal upon being satisfied that the Tribunal was relevantly a "court" and that the appeal had succeeded on a question of law. The appeal involved the exercise of federal jurisdiction because there was a constitutional point, but this was correctly not seen to be an impediment (although no point appears to have been taken on this account). The matter was subsequently clarified by the insertion of s2(2) into the Suitors' Fund Act which states in effect that it extends to courts exercising federal jurisdiction. I would venture to doubt whether the amendment was essential in the light of what was done in Dao (No 2) implicitly. But none of this assists the claimant, in my view, because his problem in the present case involves much more than the fact that the trial involved the exercise of federal jurisdiction (see further par 5, above). 25 Because no section of the Judiciary Act has the effect contended for, it becomes unnecessary to consider the power of the federal Parliament to pass a law having the effect of imposing a financial liability upon a State with respect to the default of a federal prosecutor in proceedings involving an offence under a law of the Commonwealth. If that power were in issue the matter could be tested by asking about the validity of a federal enactment passed in the terms of the Costs Act save for the express inclusion of reference to federal offences. It is difficult to see the constitutional basis for such a provision. These musings should, however cease because no party issued a notice under s78B of the Judiciary Act and because counsel for the active opponent (the Commonwealth Director of Public Prosecutions) did not suggest any deficiency in federal constitutional power. This is hardly surprising and not in any sense discreditable. 26 The summons should be dismissed with costs.

SHELLER JA: INTRODUCTION 27 On 22 July 1998 the claimant, Cecil Gregory Solomons, was found not guilty of two counts of being knowingly concerned in the importation of a trafficable quantity of ecstasy pursuant to s233B(1)(d) of the Customs Act 1901 (Cth). The claimant applied to the trial Judge, Judge Keleman SC, for a certificate under s2 of the Costs in Criminal Cases Act 1967, a State Act. The learned Judge refused that application because, in his opinion, the court had no power to grant such a certificate in respect of proceedings for the prosecution on indictment of a person charged with a Commonwealth offence. In coming to that conclusion, his Honour relied upon Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 (Owens [No 2]). The claimant, after considerable delay, applied by summons for an order setting aside the trial Judge's decision and remitting the application to the District Court to be considered according to law. The application was made pursuant to s69 of the Supreme Court Act 1970 and was for relief in the nature of certiorari. 28 As filed, the only opponent to the summons was the Queen in right of the Commonwealth. The Commonwealth Director of Public Prosecutions had prosecuted the claimant. When the hearing of the appeal began, the claimants sought and obtained leave to add the District Court of New South Wales as an opponent. The District Court filed a submitting appearance. During the hearing of the appeal, following the Court's suggestion, the claimant was granted leave to join the State of New South Wales, which appeared by a solicitor who announced that the State wished to make no submission in the matter. No party submitted that the application involved a matter arising under the Constitution or involving its interpretation; s78B(1) of the Judiciary Act 1903 (Cth). I do not think notices under that section were required to be given. The application involved the proper construction and effect of the Costs in Criminal Cases Act and the Judiciary Act.

THE RELEVANT LEGISLATION 29 The Costs in Criminal Cases Act provided, at the relevant time, as follows: "2. The Court or Judge or Justice or Justices in any proceedings relating to any offence, whether punishable summarily or upon indictment, may - (a) where a defendant, after a hearing on the merits, is acquitted or discharged as to the information then under inquiry; or (b) where, on appeal, the conviction of the defendant is quashed and - (i) the defendant is discharged as to the indictment upon which he or she was convicted; or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. 3. (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Justice or Justices granting the certificate - (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. (2) A certificate granted under this Act by a Justice or by Justices shall specify the amount of costs that the Justice or Justices would have adjudged to be paid if the Justice or Justices had made an order for costs against the informant, prosecutor or complainant, as the case may be. 3A. (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in paragraph (a) of subsection (1) of section 3 to all the relevant facts is a reference to such of the relevant facts as were established in those proceedings together with such further relevant facts as the defendant, on the application for the certificate, has established to the satisfaction of the Court or Judge or Justice or Justices. (2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Justice or Justices to which or to whom the application is made may - (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts; and (b) if the Court, Judge, Justice or Justices, think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. 4. (1) In this section "Under Secretary" means the Under Secretary of the Department of the Attorney General and of Justice. (2) Any person to whom a certificate has been granted pursuant to this Act may, upon production of the certificate to the Under Secretary, make application to the Under Secretary for payment from the Consolidated Revenue Fund of the costs incurred by that person in the proceedings to which the certificate relates. (3) Subject to subsection (4), the Under Secretary shall, as soon as practicable after receiving an application under subsection (2), furnish to the Treasurer a statement, signed by the Under Secretary, setting forth the particulars of the application and the certificate to which it relates and specifying - (a) (i) where an amount for costs has been specified in the certificate pursuant to subsection (2) of section 3, the amount so specified; or (ii) where an amount for costs has not been so specified, the amount that, in the opinion of the Under Secretary, would reasonably have been incurred for costs by the applicant in the proceedings to which the certificate relates; and (b) any amounts which, in the opinion of the Under Secretary, the applicant has received or is entitled to receive or would, if the applicant had exhausted all relevant rights of action and other legal remedies available to the applicant, be entitled to receive, independently of this Act, by reason of the applicant's having incurred those costs. (4) The Under Secretary may defer furnishing to the Treasurer any statement under subsection (3) for as long as the Under Secretary considers it necessary to do so to enable the Under Secretary to specify the amounts referred to in subparagraph (ii) of paragraph (a), and paragraph (b), of that subsection. (5) Where the Treasurer, after receiving the Under Secretary's statement relating to any such application, considers that, in the circumstances of the case, the making of a payment to the applicant is justified, the Treasurer may pay to the applicant his or her costs or such part thereof as the Treasurer may determine. (6) Any payments under subsection (5) may be made without further appropriation than this Act. 5. (1) Where payment is made to any person pursuant to section 4, the Under Secretary shall be subrogated, to the extent of the payment, to all the rights and remedies of that person, other than those provided under this Act, to recover costs incurred in the proceedings in respect of which application for the payment was made. (2) Any moneys recovered by the Under Secretary pursuant to subsection (1) shall be paid to the Consolidated Revenue Fund."

30 Section 2 of the Costs in Criminal Cases Act referred to proceedings relating to any offence. The power to grant a certificate under the Act was vested in the Court or Judge in the proceedings. This at once identified the Court or Judge which had to deal with the application and suggested that the application, though separately initiated, was closely connected with and should be dealt with as part of the proceedings. 31 The criteria for the grant of the certificate, which had to be specified in the certificate, were that it would not have been reasonable to institute the proceedings if the prosecution had been in possession of evidence of all the relevant facts and that any act or omission of the defendant that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances. In short, the question was whether, if all the relevant facts had been known, the institution of the proceedings would not have been reasonable. The relevant facts were not only those established in the proceedings but also further relevant facts established to the satisfaction of the Court on the application for the certificate. The Court might give leave to the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application, to comment on the evidence of those further facts and, in certain circumstances, to examine witnesses and adduce evidence. 32 A successful applicant produced the certificate to the Under Secretary of the Department of the Attorney General and of Justice and applied for payment from the consolidated revenue fund of the costs incurred by that person in the proceedings. The Under Secretary then furnished to the Treasurer a statement setting forth the particulars of the application and the certificate and the Treasurer, after receiving the Under Secretary's statement, considered it. If the Treasurer considered that the making of the payment to the applicant was justified, the Treasurer might pay to the applicant the applicant's costs or such part thereof as the Treasurer might determine. 33 The claimant's primary submission was that the Act applied of its own force to enable Judge Keleman to grant the certificate. Alternatively, the claimant relied upon the Judiciary Act, the relevant sections of which provide as follows: " Federal jurisdiction of State Courts in other matters 39. (1) …… (2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions: (a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise. Special leave to appeal from decisions of State Courts though State law prohibits appeal (c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge. Exercise of federal jurisdiction by State Courts of summary jurisdiction

(d) The federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction, or an arbitrator on whom the jurisdiction, or part of the jurisdiction, of that Court is conferred by a prescribed law of the State, within the limits of the jurisdiction so conferred. 68. Jurisdiction of State and Territory courts in criminal cases (1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: (a) their summary conviction; and (b) their examination and commitment for trial on indictment; and (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith; and for holding accused persons to bail, 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 or Territory by this section. (2) The several Courts of a State or Territory exercising jurisdiction with respect to: (a) the summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. …..

79. State or Territory laws to govern where applicable The laws of each State or Territory, 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 or Territory in all cases to which they are applicable."

FEDERAL JURISDICTION VESTED IN STATE COURTS 34 There is no doubt that the claimant's trial was conducted by the District Court in the exercise of federal jurisdiction vested in it pursuant to s39(2) and s68(2) of the Judiciary Act by the Federal Parliament under power derived from ss51 (xxxix), 71 and 77(iii) of the Constitution; see The Queen v Bull (1974) 131 CLR 203 at 275 where Mason J said: "This is not the occasion to undertake an exposition of the precise relationship between s39(2) and s68(2) of the Judiciary Act . For present purposes it is sufficient to say that it has been accepted that the specific provision made in s68(2) respecting the conferment of jurisdiction on State courts with respect to persons charged with offences against the laws of the Commonwealth does not displace, in criminal matters, the general grant of federal jurisdiction which flows from s39(2). 'To exclude its operation upon any part of federal jurisdiction, more is required than a special provision conferring part of the jurisdiction, either original or appellate, which s39 also confers'. Adams v Cleeve (1935) 53 CLR 185 at 190."

35 In Ah Yick v Lehmert (1905) 2 CLR 593 at 603 Griffith CJ said: "In the case of the High Court, the extent to which that Court may exercise judicial power is defined by the Constitution; in the case of other courts it is not defined by the Constitution, and must, again of necessity, be defined by the Commonwealth law which creates those Courts or invests them with federal jurisdiction. The term 'federal jurisdiction' means authority to exercise the judicial power of the Commonwealth, and again that must be within limits prescribed."

His Honour continued at 603-4: "Section 75 defines and enumerates five classes of cases in which the High Court has original jurisdiction, and s76 four others in which Parliament may confer original jurisdiction upon the High Court. ...Then s77 provides that Parliament may make laws '(i) Defining the jurisdiction of any federal Court other than the High Court', and '(iii) Investing any Court of a State with federal jurisdiction.' Now, the power to create a federal Court depends upon s71…..Taking s71 into consideration, s77(i) means that the Parliament may establish any Court to be called a federal Court, and may give it jurisdiction to exercise any judicial power of the Commonwealth, which the Parliament may think fit to confer upon it, either by way of appellate or original jurisdiction. Subsection (iii) must receive a precisely similar interpretation. Parliament may invest any Court of a State with authority to exercise federal judicial power, again to the extent prescribed by the Statute." 36 At 605, referring to s39(2) of the Judiciary Act, his Honour said: "……as to the nine classes of cases enumerated in sections 75 and 76 of the Constitution the several Courts of the State are invested with federal jurisdiction……But the jurisdiction with which those courts are invested is qualified by the words 'within the limits of their several jurisdictions'……In my judgment, s39 confers authority on each State Court to exercise the judicial power of the Commonwealth in the enumerated classes of cases, as to all such matters as are in other respects within the limits of its jurisdiction as defined by the State laws by which it is established. And I think that that authority is conferred to the same extent, and for the same purposes, and is to be exercised in the same manner, as if the Court had been established as a federal Court with jurisdiction to exercise the federal judicial power to the extent, and for the purposes, for which it was actually established."

37 At 614 Barton J, referring to the expression "whether such limits are as to locality, subject-matter or otherwise", said: "that in using the words 'or otherwise' it was intended to apply to the purposes of the section the whole State jurisdiction not already mentioned - the whole of the jurisdiction possessed by any Court of a State, whether that jurisdiction was civil or criminal, original or appellate. …Therefore, I conclude that it was the intention of s39(2) to invest the State Courts with federal jurisdiction, not only as to locality and subject matter, but also as to quality."

38 In Seaegg v The King (1932) 48 CLR 251 at 256 the High Court said: "Section 39(2) does confer upon State Courts Federal jurisdiction coextensive with their State jurisdiction in respect of matters which are, or may be placed, within the original jurisdiction of this High Court: but something further appears to be required to make the State Criminal Appeal Act apply to Federal prosecutions. It has not, so far, been decided that s39(2) can operate to increase or vary the subject matter of the jurisdiction. In the present instance, the subject matter is confined to appeals against convictions upon indictment preferred under State law. It may well be that s39(2) cannot convert the jurisdiction over that subject matter into a Federal jurisdiction over a different subject matter, viz., appeals against convictions upon indictment preferred pursuant to s69 of the Federal Judiciary Act 1903-1927."

After that decision, on 5 December 1932, s68 of the Judiciary Act was amended: "(a) by inserting in sub-section (1) after paragraph (c) the following paragraph: 'and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith'; and (b) by inserting in sub-section (2), after the word 'State' (second occurring) the words ', and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith,'."

39 In Williams v The King [No 2] (1934) 50 CLR 551 the High Court considered whether s68 of the Judiciary Act operated on s5D of the Criminal Appeal Act 1912 (NSW) to enable the Commonwealth Attorney General to appeal on the ground of inadequacy of sentence to the Court of Criminal Appeal. That Court had upheld the appeal and increased the sentence. The prisoner sought leave to appeal. One of the grounds of appeal was that the conferring of a right to appeal by s5D of the Criminal Appeal Act on a named officer, the State Attorney General, could not, by analogy, be held to confer a right of appeal on some Commonwealth officer. The Court being equally divided, leave was refused. Dixon J, who would have refused leave and with whose reasons Starke J concurred, said at 558-562: "(1) Section 51 (xxxix) of the Constitution and s77(iii) as construed in Ah Yick v Lehmert confer ample power upon the Parliament to invest the Courts of a State with power to entertain, and to authorize the prisoner or the Crown to take, any proceedings by way of appeal or review in the case of offences against Federal law which the State law allows in cases of offences against State law. (2) The power or powers derived from s51 (xxxix) and s77(iii) in combination may be exercised by the Parliament without discriminating in its enactment between these sources of authority. The provision should not be referred to s77(iii) alone and construed as doing no more than that power may be considered to authorize. Thus, even if it were correct that s77(iii) is not a source of power to enact new remedies, but only of power to give State Courts a Federal authority to administer existing remedies, it would not follow that s68(2) of the Judiciary Act 1903-1932 should receive an interpretation which, with respect to appeals after trial upon indictment, restricted its operation to conferring upon the State Courts capacity to entertain appeals elsewhere given by Federal law to the prisoner or the prosecution. (3) The provision in s68 upon which the question turns was inserted by Act No 60 of 1932 in consequence of the decision of this Court in Seaegg's Case . It is, therefore, certain that the amendment was intended to confer upon the Courts of Criminal Appeal of the States a jurisdiction to hear and determine appeals in the case of Federal offences such as existed in the case of State offences and to confer upon prisoners, at any rate, a right to invoke that jurisdiction and to obtain analogous remedies. No construction of the provision should be adopted which defeats that object, unless the language in which it is expressed is found incapable of any construction that would accomplish it. (4) To effect the object, the enactment provides that the several Courts of a State exercising jurisdiction with respect to the hearing and determination of appeals arising out of the trial or conviction on indictment, or out of any proceedings connected therewith, 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. Thus, the method pursued is, so to speak, to take up and adopt 'with respect to persons who are charged with offences against the laws of the Commonwealth' all the jurisdiction of the State Court to hear and determine appeals which answer the description 'appeals arising out of the trial or conviction on indictment, or out of any proceedings connected therewith, of offenders or persons charged with offences against the laws of the State.' A provision conferring jurisdiction to hear and determine appeals of a specified kind may, perhaps, be taken to mean to do no more than to say which shall be the Court to entertain appeals and administer the remedies that other provisions of the law give to the party. But it is also open to an interpretation by which it gives a jurisdiction to review proceedings not hitherto subject to appeal and so creates new remedies by conferring power to administer them. The first construction would defeat the clear object of the Legislature. The second would achieve it, and ought, therefore, to be adopted. (5) But when this construction is given to the words of the provision, they necessarily extend to all remedies given by State law which fall within the description 'appeals arising out of the trial or conviction on indictment or out of any proceedings connected therewith.' This accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice. It is, in my opinion, no objection to the validity of such a provision that the State law adopted varies in the different States. (6) Section 5D of the New South Wales Criminal Appeal Act , which authorizes the Attorney-General of the State to appeal against any sentence to the Court of Criminal Appeal and empowers that Court to impose such sentence as it thinks fit, does give an appeal which falls within the description 'appeals arising out of the trial or conviction on indictment or out of any proceedings connected therewith.' The word 'conviction' is capable of including sentence, and a construction which confines the description to appeals from verdict and incidental proceedings, and excludes appeals from sentence, appears to me inconsistent with the evident purpose of the Legislature of giving to prisoners, at any rate, the same remedies by way of appeal in the case of Federal offences as exist in the case of State offences. (7) I do not think that the contention is well founded that, in spite of the prima facie meaning of the general description, it should be interpreted as relating to appeals by the prisoners only, or as insufficient to include such an innovation as an appeal from sentence by the prosecution. Conceding that such a proceeding is a marked departure from the principles theretofore governing the exercise of penal jurisdiction, it is a departure sanctioned by State law, and it had already been made when the amendment in the provisions of s68(2) was introduced. General words adopting an existing set of provisions of State law appear to me to be of a different order from general words which are not referential, but deal independently with the subject matter. The general language of s3 of the Appellate Jurisdiction Act 1876, which enacted that, subject to certain exceptions, an appeal lies to the House of Lords from any order of the Court of Appeal in England, has been held to give no right of appeal from an order for discharge from custody made upon the return of a writ of habeas, although expressed in terms sufficient to do so, because it could not be supposed 'that a section couched in terms so general availed to deprive the subject of an ancient and universally recognized constitutional right' (per Lord Birkenhead, Secretary of State for Home Affairs v O'Brien [1923] AC 603 at 610). But such a process of interpretation does not appear to me to be applicable to an enactment dealing with the existing and known provisions of a particular department of the statutory law of the States and by a general description adopting it for Federal purposes. Whatever, upon the natural meaning of the language, falls within the description should, I think, be understood as within the legislative intention. (8) The New South Wales section gives the right of appeal against sentence to the Attorney-General of the State. It gives it to him in virtue of his office. He is the proper officer of the Crown in right of the State for representing it in the courts of justice. When s68(2) speaks of the 'like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth,' it recognizes that the adoption of State law must proceed by analogy. The proper officer of the Crown in right of the Commonwealth for representing it in the Courts is the Federal Attorney-General. I do not feel any difficulty in deciding that, under the word 'like' in the expression 'like jurisdiction,' the functions under s5D of the State Attorney-General in the case of State offenders fall to the Federal Attorney-General in the case of offenders against the laws of the Commonwealth."

40 From Dixon J's judgment can be derived the following principles relevant to this application: · The general policy disclosed by s68 of the Judiciary Act is to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal judgment. · Section 68(2) should not receive an interpretation which restricts its operation to conferring upon the State Courts capacity to entertain applications elsewhere given by federal law to the prisoner or the prosecution. · General words adopting an existing set of provisions of State law are of a different order from general words which are not referential, but deal independently with the subject matter. An enactment dealing with the existing and known provisions of a particular department of the statutory law of the States and by general description adopting it for federal purposes should include whatever upon the natural meaning of the language falls within the description. · When s68(2) speaks of the "like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth", it recognises that the adoption of State law must proceed by analogy. In Williams v The King [No 1] (1933) 50 CLR 536 at 543 Starke J said: "A 'like jurisdiction' is, I apprehend, a jurisdiction analogous, similar or corresponding to that of the State court in respect of offences against the laws of the State."

See also per Evatt and McTiernan JJ at 549 and The Queen v Bull at 258 per Gibbs J. Thus, the functions under a State enactment of the State Attorney General in the case of State offenders fall to the Federal Attorney General in the case of offenders against the laws of the Commonwealth. · The federal jurisdiction given with respect to trial and conviction on indictment such as existed in the case of State offences would extend at least to confer upon the accused a right to invoke remedies available to a State accused. In this regard, I think, one can take account of the language of para (d) added to s68(1) by the 1932 amendment, which dealt with appeals arising not only out of any such trial or conviction but also "out of any proceedings connected therewith". · The interpretation was open and should be adopted that s68(2) created new remedies by conferring authority to administer them. When this construction is given to the words of the section, they necessarily extend to all remedies given by State law which fall within the relevant description. 41 In Williams v The King [No 2] the Court being equally divided in opinion, the order was made in accordance with s23(2)(a) of the Judiciary Act. Speaking of a like situation in Gould v Brown (1998) 193 CLR 346 Gummow and Hayne JJ said in Re Wakim; ex parte McNally (1999) 73 ALJR 839 at 860: "That is, there was no opinion on the issues raised that was an opinion commanding the assent of a majority of the Court. It follows that, although the decision in Gould v Brown disposed finally of the appeal and bound other courts in Australia to arrive at a like result on the issues it dealt with, it established no principle or precedent having authority in this Court."

42 However, the High Court has applied what Dixon J said; see Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 124-5. Accordingly, for present purposes it seems to me to matter not, unless there was some inconsistency, that the power to grant a certificate and its consequences found in the Costs in Criminal Cases Act is not found in federal law or that the prosecutor is a federal officer. On the other hand I do not think that the process of analogy can extend to converting the claim on State consolidated revenue to a claim on Commonwealth consolidated revenue. Obviously, s4(6) of the Costs in Criminal Cases Act can only appropriate from State consolidated revenue; compare ss53 and 54 of the Constitution. OWENS [NO 2] 43 In Commissioner of Stamp Duties (NSW) v Owens (1953) 88 CLR 67, the Commissioner of Stamp Duties successfully appealed in the High Court against a decision of the Full Court of the Supreme Court of New South Wales. The respondents were ordered to pay the costs of the appeal and applied to the High Court (Owens [No 2]) for a certificate under the Suitors' Fund Act 1951 (NSW). Section 6 of the Suitors' Fund Act, as then in force, provided that where an appeal against the decision of any court on a question of law succeeded, the court determining the appeal might grant to the respondent thereto a certificate, which the section called an indemnity certificate. Subsection (2) then enacted that such a certificate should entitle the respondent to be paid from the Suitors' Fund the costs which he might be ordered to pay, and paid, to the appellant and the costs of the appeal incurred by the respondent, the whole not to exceed £500. Subsection (3) provided as follows: "Where a court of appellate jurisdiction (in this subsection referred to as the 'court of higher appellate jurisdiction') grants an indemnity certificate to the respondent to the appeal heard by it, an indemnity certificate granted previously to any person who is a party to such appeal by a court of lower appellate jurisdiction in the appeal or series of appeals which preceded the appeal to the court of higher appellate jurisdiction shall be vacated."

44 At 169, the High Court (Dixon CJ, Williams, Webb, Fullagar and Kitto JJ) said: "Section 6 operates to impose upon the courts to which it applies a duty to hear and consider applications for indemnity certificates and to exercise a judicial discretion in granting or refusing them. It is apparent that this Court, the jurisdiction of which depends upon the Constitution of the Commonwealth and the laws validly made thereunder, could not in such a matter be affected by an exercise of the authority of the State legislature. It is therefore not a court to which s6(1) of its own force can apply. Nor is there any reason to think that the term 'Court' in s6(1) was intended to include the High Court of Australia. No one could suppose that the general words of s5 were used with any idea that they would cover proceedings in the High Court and that no doubt is true of the word 'Court' in s6(1). But in any case, since s6 cannot apply to the High Court, it follows that, on ordinary principles, it should not be construed as intending to do so."

45 The argument was put that s6 was a law of the State of New South Wales which was made binding on the High Court, as a court exercising federal jurisdiction, by s79 of the Judiciary Act. Their Honours said: "Section 79 has, in our opinion, no bearing on the matter. 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."

46 In addressing the proposition that New South Wales legislation of its own force could affect the High Court, the Court held that the Suitors' Fund Act could not apply to impose upon it a duty to hear and consider an application by a respondent under the Act in the case where an appeal against the decision of a State court on a question of law succeeded in the High Court. 47 With respect to the meaning and operation of both the Suitors' Fund Act and s79 of the Judiciary Act, the focus was on whether either the State Act or the Federal Act imposed a duty under the Suitors' Fund Act on the High Court. The Court held that they did not. In Gurnett v The Macquarie Stevedoring Company Pty Limited [No 2] (1956) 95 CLR 106 at 110, Dixon CJ said that Owens [No 2] was concerned with a claim to indemnity out of the fund in respect of costs incurred in the High Court, not in respect of costs incurred in the court from which the appeal came to the High Court. The question which Gurnett's Case raised was whether the function which s6 of the Suitors' Fund Act confided to the Supreme Court lay outside the ambit of the power of the High Court, in the language of s37 of the Judiciary Act, to confirm, reverse or modify the judgment appealed from and give such judgment as ought to have been given in the first instance (see 111). In dissenting from the opinions of the other members of the Court, the Chief Justice at 112 said: "The function under the Suitors' Fund Act is new but it is consequential upon and intimately bound up with the disposition of the appeal." 48 The other members of the Court regarded the function under the Suitors' Fund Act as not one part of the Court's disposing of an appeal. At 115 McTiernan J said: "Section 6(1) of the Suitors' Fund Act does not make the function of granting an indemnity certificate one to be performed by the appellate court in the course of determining the appeal. The words 'the court determining the appeal' are a description of the court in which the discretion to grant or refuse an indemnity certificate is vested. …. In my judgment, upon the true construction of the Suitors' Fund Act , the right of a respondent to an indemnity certificate arises after the determination of the appeal, if it succeeds."

Similarly, at 117 Williams J said: "The question whether the Supreme Court should grant or refuse a certificate is a question entirely collateral to the subject matter under appeal."

At 117-118 Webb J emphasised that on an application for a certificate to the Supreme Court, only the applicant was entitled to be heard. The application was outside the limits of the contest between the parties. At 119, Taylor J said: "At the most it is, it seems to me, a collateral function and the grant of a certificate forms no part of the judgment disposing of any such appeal." 49 In both Owens [No 2] and Gurnett, the High Court was concerned with its own function under federal law in disposing of an appeal. In Owens [No 2], the question was whether the Suitors' Fund Act affected the High Court by requiring it where it allowed an appeal to consider an application for an indemnity certificate by an unsuccessful respondent. The Court considered that s79 of the Judiciary Act had no bearing on the matter. In Gurnett's Case the question was whether, as part of allowing an appeal from the Supreme Court and giving such judgment as ought to have been given in that Court, the High Court should consider granting a certificate to the unsuccessful respondent in that Court. 50 The present case is not about the imposition of a function imposed by State law upon the High Court or federal courts. In proceedings relating to any State offence, the District Court of New South Wales was clothed by the State Act with authority to grant certificates under the Costs in Criminal Cases Act. The question is whether the vesting in the District Court of jurisdiction to try federal offences embraces or pursuant to s79 of the Judiciary Act picks up that authority and, by analogy, enables the Court to grant such certificates in federal prosecutions. It is not decisive or even relevant that the State Act does not by its own language purport to apply to federal proceedings. With due respect, I do not think that either Owens [No 2] or Gurnett assists in resolving this question.

THE COMPOSITE LAW APPLICABLE 51 In Pedersen v Young (1964) 110 CLR 162 the Court was concerned with a defence under the Queensland Law Reform (Limitation of Actions) Act 1956 raised in proceedings brought in the High Court in the New South Wales registry. At 167-8 Menzies J said: "As at present advised I do not think 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: Owens [No 2] ."

52 State courts have found no difficulty, when exercising federal jurisdiction vested in them, in granting certificates under s6 of the Suitors' Fund Act; see for example, Australian Postal Commission v Dao [No 2] (1986) 6 NSWLR 497, a case decided before the 1987 amendment of the Suitors' Fund Act inserting subs 2(2) which provided that the Act applied to and in respect of a court exercising State or federal jurisdiction. In the Second Reading Speech of the Amending Bill, the Attorney General said that the amendment would "confirm that the Act has application to proceedings involving an exercise of federal as well as State jurisdiction." 53 Section 68 of the Judiciary Act, as its title states, concerns the jurisdiction of State and Territory courts in criminal cases. Subsection (2), in combined operation with s39(2), vests analogous, similar or corresponding jurisdiction, described as "the like jurisdiction", in the several courts of a State exercising jurisdiction with respect to the trial and conviction on indictment of persons charged with offences against the laws of the State, subject to the section and s80 of the Constitution, "with respect to persons who are charged with offences against the laws of the Commonwealth". The subsections that follow subs (2) descend to some particularity about the nature and extent of that jurisdiction. 54 In Felton v Mulligan (1971) 124 CLR 367 at 393 Windeyer J said: "In most cases where there is a conflict between rights, whether of appeal or otherwise, arising under federal and State law the question is resolved by s109 of the Constitution. In other cases it seems to me that the difficulty need not really arise. The existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication. But once a court is duly seised for adjudication of a matter arising under a Commonwealth law, it seems to me impossible to say that it is not exercising federal jurisdiction and that the provisions of s39(2) of the Judiciary Act are not to apply" 55 Having quoted this passage in Fencott v Muller (1983) 152 CLR 570 at 607, Mason, Murphy, Brennan and Deane JJ said: "Subject to any contrary provision made by federal law and subject to the limitation upon the capacity of non-federal laws to affect federal courts, non-federal law is part of the single, composite body of law applicable alike to cases determined in the exercise of federal jurisdiction and to cases determined in the exercise of non-federal jurisdiction (cf Felton v Mulligan at 392 and 399). It follows also that, though the facts upon which a non-federal claim arises do not wholly coincide with the facts upon which a federal claim arises, it is nevertheless possible that both may be aspects of a single matter arising under a federal law."

56 In R v Moffatt [1998] 2 VR 229 at 248 Hayne JA, as his Honour then was, referred to such expressions as: "there being in this country what Deane J described in Breavington v Godleman (1988) 169 CLR 41 at 134 as 'a comprehensive and truly unitary system of substantive law' or there being an 'integrated Australian judicial system for the exercise of the judicial power of the Commonwealth' (as to which see Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 per Gaudron J at 102; per Gummow J at 137-8); or there being a single common law of Australia as opposed to the common law of individual States ( Kable per McHugh J at 113)…."

At 249, referring to Kable , his Honour said: "All of the judges who decided the case accepted that the State courts are the creatures of the States and that when the Commonwealth invests judicial power of the Commonwealth in a State court, it must take that court 'constituted and organised as it is from time to time' ( Kable per Brennan CJ at 67) and must, at least in that sense, take the State court 'as it finds it' ( Federated Sawmill, Timber Yard and General Workers Employees Association v Alexander (1912) 15 CLR 308 at 313 per Griffith CJ)."

57 A State court invested with jurisdiction by subs (2) must apply the laws of the State respecting the arrests and custody of offenders or persons charged with offences and the procedure for their trial and conviction on indictment "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 … by [s68]"; see subs (1). 58 In the Second Reading Speech on the introduction of the Costs in Criminal Cases Bill, the Minister of Justice referred to the prerogative of the Crown not to pay costs and the practice of the Crown not to seek to receive them and the view that the awarding of costs to a successful accused would place a prize of cash, either to be deprived from one party or gained by another and would remove the essential impartiality from a criminal proceeding. The Minister said that the proposed legislation: "departs from the old English conception that costs in criminal trials should only be awarded in exceptional cases. On the other hand it establishes criteria which, when applied judicially, permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the prosecutor or the accused."

59 Standing alone, I do not think one would read s2 of the Costs in Criminal Cases Act when it speaks of proceedings relating to any offence as referring to other than proceedings of a State court exercising State jurisdiction in relation to a State offence. The limited ambit of s2 alone is confirmed by s12(1) of the Interpretation Act 1987 which provides that a reference to a statutory body is a reference to a statutory body in and for New South Wales and a reference to a jurisdiction or other matter or thing as a reference to such jurisdiction or other matter or thing in and of New South Wales. No more before its amendment would one read s6 of the Suitors' Fund Act as referring other than to proceedings in which the State court was exercising State jurisdiction. 60 But it should be observed first that the Costs in Criminal Cases Act did not discriminate between proceedings brought by the Director of Public Prosecutions, a police officer or a private citizen, or relating to any offence, whether punishable, summarily or upon indictment. 61 Secondly, only the Federal Parliament can impose upon a State court federal jurisdiction to entertain the prosecution of an offence against federal law. The District Court of New South Wales is a court in which the Judiciary Act has invested such federal jurisdiction. What s2 of the Costs in Criminal Cases Act made plain was that the court which exercised the power there conferred was doing so "in" proceedings relating to an offence. The court in those proceedings, faced with an application for a certificate under the Act, was bound to decide in terms of the Act whether to grant a certificate. That was an integral part of the court's authority in State prosecutions and was, in my opinion, appropriately translated to federal prosecutions by the vesting of the "like jurisdiction with respect to persons" charged with offences against the laws of the Commonwealth. 62 A separate and independent question is whether s79 of the Judiciary Act picked up and made binding on the State court exercising federal jurisdiction in that State the Costs in Criminal Cases Act. Did that Act become a surrogate law of the Commonwealth? Section 79 could not operate to pick up some but not all of the otherwise applicable terms of the New South Wales Act, for to do so would be to give an altered meaning to the State legislation: see Maguire v Simpson (1977) 139 CLR 362 at 376 and The Commonwealth v Mewett (1997) 191 CLR 471 at 556. But the Costs in Criminal Cases Act could be applied in a federal prosecution in the District Court without any alteration of meaning. The process that followed the grant of a certificate applies unchanged. Recourse is had to the consolidated revenue fund of the State.

CONCLUSION 63 In the present case, in my opinion, the District Court had authority to adjudicate upon the application for a certificate in the proceedings on indictment against the claimant. No provision of the Federal law was inconsistent with or contrary to the provisions of the Costs in Criminal Cases Act. Had the Judge been exercising State jurisdiction, the Judge had power to grant a certificate under the Act. By analogy the Judge remained clothed with that power in the federal proceedings. 64 The State of New South Wales, although joined, put no argument. The Crown in right of the Commonwealth was the lone contradictor. As I have said, the Costs in Criminal Cases Act did not, nor could it, enable money to be appropriated from Commonwealth consolidated revenue. But the process provided by the State under the legislation enabled recourse to be made by the claimant against State consolidated revenue. 65 The application to this Court was brought after considerable delay. The claimant proffered an explanation for this in an affidavit of 16 December 1999, the contents of which were not challenged. None of the opponents is shown to have suffered any prejudice by the delay. The delay should not, in my opinion, operate to deny the claimant relief. 66 I propose the following orders: 1. Bring up the record of the District Court relating to the application of Cecil Gregory Solomons for a certificate under the Costs in Criminal Cases Act 1967 in proceedings DC 98/11/0264; 2. Order that the order made by his Honour Judge Keleman SC on 24 July 1998 refusing the application be quashed; 3. Order that the application be remitted to the District Court to hear and determine the matter of the application to that court for a certificate under the Costs in Criminal Cases Act by the said Cecil Gregory Solomons according to law; 4. Order that the opponent, the Crown in right of the Commonwealth pay the claimant's costs of the summons.

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."

(See also per Mason J at pp 93-95). 94 I note also that in Maguire v Simpson (1976-1977) 139 CLR 362 Gibbs J adhered to his previous view. He said (at 376):- "… s79 'does not purport to do more than pick up State laws with their meaning unchanged': Pedersen v Young (1964) 110 CLR 162 at p.165; and see Commissioner of Stamp Duties (N.S.W.) v Owens [No. 2] (1953) 88 CLR 168 at p.170. It was pointed out in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 that there is an exception to the generality of that statement; a State law may be rendered applicable by s79 to a court exercising federal jurisdiction, which is not a State court, notwithstanding that the law according to its own terms is limited in its application to the courts of the State." 95 I note, also, what was said by Gummow and Kirby JJ in The Commonwealth of Australia v Mewett (1996-1997) 191 CLR 471 at 556 where, in relation to the application of the Limitation Act 1969 (NSW) to proceedings being heard in the Federal Court of Australia sitting in New South Wales, their Honours spoke of the "regime of extensions of limitation periods" in the legislative scheme and said:- "Section 79 could not operate to pick up some but not all of the otherwise applicable terms of the NSW Act, for to do so would be to give an altered meaning to the State legislation. This would be in the face of the authorities discussed by Gibbs J in Maguire v Simpson (1977) 139 CLR 362 at 376 ." 96 There is no suggestion in the present proceedings that an application made to the trial judge under the Costs Act would involve any relevant change in the meaning of that Act. I am, accordingly, of the view that s79 of the Judiciary Act would enable the application to be made unless, in terms of the section, its operation was necessarily excluded. In this regard a State law may be found to be "not applicable" (Ferguson Transformers) or excluded by a law of the Commonwealth (Bass v Permanent Trustee Co Limited [1999] HCA 9, 161 ALR 399; 73 ALJR 522). In my view these considerations do not apply in the present case. There is no suggestion that the Costs Act would not, if otherwise available, be "applicable", or that any law of the Commonwealth would exclude it from operation. 97 However, regard must be paid to possible exclusionary effects of the Constitution having regard to the fact that the State Court is exercising federal jurisdiction. The vesting of that jurisdiction must, of course, comply with and be circumscribed by the relevant Constitutional sources of power which support it. I have already set out the relevant provisions of the Constitution. To these may be added the "incidental" power provided by s51(xxxix). 98 In The Queen v Murphy (1985) 158 CLR 596, the full bench of the High Court considered (at p. 613) the Constitutional parameters of the vesting of State courts with federal jurisdiction. Their Honours said:- "The power given to the Parliament by s77(iii) of the Constitution to make laws investing any court of a State with federal jurisdiction is 'with respect to' any of the nine matters mentioned in ss75 and 76. These matters include matters arising under any laws made by the Parliament: s76(ii). To what extent s51(xxxix) of the Constitution may confer ancillary power to invest federal jurisdiction is an unresolved question on which conflicting opinions have been expressed; R. v Murray and Cormie ; Ex parte The Commonwealth (1916) 22 CLR 437 at p.452; Lorenzo v Carey (1921) 29 CLR 243 at p.252; The Commonwealth v Limerick Steamship Co. Ltd and Kidman (1924) 35 CLR 69 at pp.105, 115-116; Le Mesurier v Connor (1929) 42 CLR 481 at pp.498, 514. According to the authorities, the power conferred by s77(iii) is limited by the principle, which has been distilled from Ch. III and the dispositions it makes with respect to the judicial power, that only judicial functions and functions incidental thereto may be invested in a State court." 99 It follows, in my opinion, that no State law can be "picked up" by s79 unless it is appropriate to the exercise of federal jurisdiction by the State court in question. To be so appropriate it must be integral with the adjudicative process in respect of a "matter" referred to in s75 and s76 of the Constitution or be incidental to that process. In the present case the invested federal jurisdiction relates to a matter arising under a law made by the Parliament (s76 (ii)) and the law conferring the jurisdiction, s68(2) of the Judiciary Act, relates, relevantly, to "trial and conviction on indictment" (s68 (2)(c)). It is clear that an application under the Costs Act does not form part of any adjudicative process involved in such trial and conviction. The question, therefore, is whether such an application can properly be regarded as "incidental" to such a process. If it is not, then s79 cannot incorporate it in the federal jurisdiction being exercised by the District Court. 100 The answer to this question depends upon a consideration of the significant features of an application under the Costs Act. As it is necessary to consider these features in relation to the question whether s68(2) can operate to include the application under the Costs Act within the federal jurisdiction being exercised by the District Court, I shall defer consideration of this question in relation to s79 until the latter task has been completed. 101 The question arising under s68(2) is whether the expression "like jurisdiction", contained therein, is apt to include within the federal jurisdiction exercised by the District Court the power to hear and determine an application under the Costs Act. The effect of the section is that a State court exercising federal jurisdiction in respect of charges relating to offences against the laws of the Commonwealth is to have "like jurisdiction" to that of a State court exercising jurisdiction with respect to the trial and conviction on indictment of offenders or persons charged with offences against the laws of the State. In Williams v The King [No 1] (1933) 50 CLR 536 at 560, Dixon J said, in relation to the section, that it "accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice." (See also The Queen v Murphy at 617). 102 The expression "like jurisdiction" received early consideration in Williams v The King [No. 1] (1933) 50 CLR 536. Starke J at 543 said: "(a) 'like jurisdiction' is, I apprehend, a jurisdiction analogous, similar or corresponding to that of the State Court in respect of offences against the laws of the State." 103 In Williams v The King [No 2] (1934) 50 CLR 551, Dixon J (at 561) agreed with this approach. He said: "When s68(2) speaks of the 'like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth', it recognises that the adoption of State law must proceed by analogy". 104 This view has been consistently followed. In Peel v The Queen (1971) 125 CLR 447 it was held that the section operated upon s5D of the Criminal Appeal Act 1912 (NSW), so as to enable the Attorney-General of the Commonwealth to appeal to the Court of Criminal Appeal against a sentence pronounced by the Supreme Court upon the conviction of a person charged with an offence against Commonwealth law, the majority holding that an approach by way of analogy produced this result. A similar result was arrived at by the same process of reasoning in Rohde v The Director of Public Prosecutions (1986) 161 CLR 119 in respect of a provision of the Crimes Act 1958 (Victoria) comparable to s5D of the NSW Act. 105 Applying this approach in the present case, the question becomes whether an application made under the Costs Act in respect of proceedings relating to an offence under the law of New South Wales can properly be regarded as part of the State Court's jurisdiction with respect to the trial and conviction on indictment of a person charged with a State offence. The resolution of this question requires a consideration of the features of an application under the Costs Act. This analysis has been undertaken in the judgment of Sheller JA. I shall not repeat what his Honour has done. 106 It is clear that the Costs Act does not give to a defendant, who has been acquitted after a hearing on the merits, any direct right to an order for costs against the prosecution. He has the right to apply for a certificate in a particular form. The application is made to the Court or judge in the proceedings after they have concluded. The application is thus made to the judge who heard or presided over the proceedings and the certificate is granted by the judge "in" those proceedings. 107 The certificate, if so granted, states the opinion of the judge that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all relevant facts it would not have been reasonable to institute proceedings and that any act or omission of the defendant that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances. 108 The certificate, if granted, also requires the specification by the judge of an amount of costs that would have been ordered if an order for costs against the prosecutor had been made. The "relevant facts" refer not only to facts established in the proceedings but any further facts established by the applicant in the making of the application. If such further facts are established the judge may allow the prosecutor or, in his absence, a person authorised by the Minister to comment on the further facts so adduced and, after considering such comments, may give leave to the prosecutor to examine witnesses and adduce further evidence. A certificate given at the end of these proceedings may be produced to the Under Secretary of the Department of the Attorney General and of Justice and an application made for the payment of the amount of the costs from consolidated revenue. Thereafter the Under Secretary is to approach the Treasurer, who has a discretion as to whether payment of the costs should be made to the defendant. 109 Is this application relevantly part of the jurisdiction of the Court in relation to the trial and acquittal of an applicant, or is it separate and distinct from it? 110 In deciding this question, in my opinion, assistance may be gained from the decision of the High Court, in what I consider to be reasonably analogous circumstances in the case of Gurnett v The Macquarie Stevedoring Co. Pty Limited referred to above at [18]. That case involved an application for an indemnity certificate under the Suitors' Fund Act. 111 An appeal had been made to the High Court from an order of the Full Court of the Supreme Court of New South Wales dismissing an appeal by the appellant, who had been a plaintiff at first instance and against whom a verdict had been entered by direction by the trial judge. The High Court, in upholding the appeal, held that the verdict by direction should not have been given. The order of the Full Court of the Supreme Court was discharged and, in lieu thereof, it was ordered that the appeal to that Court be allowed with costs. The defendant in the action applied to the High Court to vary the cost order by adding a provision granting an indemnity certificate under s6 of the Suitors' Fund Act. This application was made on the basis that the High Court could make such an order in the course of exercising its jurisdiction to give such judgment as ought to have been given in the Court appealed from. It was contended that the Full Court of the Supreme Court, had it upheld the appeal, would have granted such a certificate to the unsuccessful respondent. 112 Dixon CJ was of the view that the variation sought could be granted. He held (at 112) that the application under the Suitors' Fund Act was "consequential upon and intimately bound up with the disposition of the appeal." He stated that "The essence of s6 of the Suitors' Fund Act is to give the State court determining the appeal an ancillary or incidental authority". He, accordingly, held that the jurisdiction of the Full Court in relation to the appeal included the power to hear and determine an application under the Suitors' Fund Act consequent upon the outcome of the appeal. The other judges of the Court did not agree. McTiernan J held (at 115) that the Suitors' Fund application was "separate from and subsequent to the appeal". Consequently the "appeal to the High Court from the judgment of the Full Court on the motion for a new trial did not bring within the appellate jurisdiction of the High Court the discretion, which the Full Court of New South Wales would have had, to grant or refuse an indemnity certificate, if that motion had succeeded there." Williams J held (at 117) that the question of the granting or refusing of a certificate by the Supreme Court was a question "entirely collateral to the subject matter under appeal." It did not arise between the parties to the appeal at all. Webb J found that the application was outside the limits of the contest between the parties. It was a consequence of the appeal without being incidental to it. He said (at 118) "The provision in s6 (1) of the Act that the court determining the appeal is to deal with the application for the certificate has not, I think, the purpose of making the application part of the appeal, or an incident of the appeal: it is simply to ensure that the application will be disposed of by judges acquainted with the case." Taylor J agreed saying that (at 119) the application was not a function exercisable as part of the process of determining the appeal. It was collateral to it. 113 Although an application under the Costs Act is made in different circumstances from an application under the Suitors' Fund Act there are many similarities between them. Each is made to the judge or judges dealing with the substantial matter in which the applicant is involved. The application is made after the conclusion of that matter, be it a hearing at first instance or an appeal. In each case the application is for the exercise of a discretion in favour of the applicant. In the case of the Suitors' Fund the exercise of the discretion in favour of the applicant does not depend upon the merits of the case, it being necessary, only, that a question of law was involved. In respect of the Costs Act, it is necessary that the applicant have been acquitted after a hearing on the merits. In each case the application is made after and is dependent upon the outcome of the main proceedings. In each case the costs, if payable, are paid from a fund not associated with or under the control of the other party to the proceedings. In the case of the Suitors' Fund, the other party has no right or interest to be heard in respect of the application. In the case of the Costs Act, in the circumstances referred to, the prosecutor may be asked to comment, examine the applicant's witnesses, or call rebutting evidence. 114 Do the differences between the two applications produce the result that the application made under the Costs Act is not merely collateral to the prosecution proceedings but is incidental to it, such that the jurisdiction to hear and determine the application is part of the general jurisdiction relating to the prosecution? Can it properly be described as incidental to it? In my view the question arising under s68 (2) in this regard is the same question as arises under s79. Il the Cost Act application incidental to the prosecution brought in exercise of federal jurisdiction or is it merely collateral to and separate from it? 115 I have come to the view that the similarity between the Suitors' Fund Act and the Costs Act applications are of greater significance in determining this matter than are the differences. With respect, I find the reasoning of the majority in Gurnett persuasive and properly capable of being applied in the present proceedings. The jurisdiction to hear and determine an application under the Costs Act could not, in my view, be part of the jurisdiction of the State Court in respect of the trial and conviction or acquittal of the claimant had these proceedings been brought in respect of a State offence. Accordingly they were not part of the "like jurisdiction" conferred by s68(2) of the Judiciary Act, with the result that Keleman DCJ was not authorised by that section to hear and determine them. Nor was the application "incidental" to the federal jurisdiction invested in the judge and, accordingly, was not "picked up" by s79 of the Judiciary Act. 116 For these reasons I agree with Mason P that this summons should be dismissed with costs.

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