voker v FCT

High Court of Australia|1918-07-01|Before: Rich JJ, Limited J

H.C. or A. Constitutional Law - Legislative power of Commonwealth Parliament - Civil process

Grifith C.2., Barton, Gavan Dufty, Powers and Rich JJ.

of State Court - Service and execution in another State - Security for costs - Investing State Court with Federal jurisdiction - Matter arising under law mad by Commonwealth Parliament - The Constitution (63 & 64 Vict. c. 12), secs, 51 (xx1v.) and (xxxrx.), 76, 77 - Service and Execution of Process Act 1901- 1912 (No. 11 of 1901 - No. 18 of 1912), sec. 12.

'The power conferred by sec. 51 (Xx1V.) of the Constitution on the Common- wealth Parliament to make laws with respect to the service and execution throughout the Commonwealth of the civil process and the judgments of the Courts of the States extends to the extra-territorial operation of writs of summons issued by such Courts when served. It is incidental to the execution of that power that a defendant should be enabled to seek for and obtain from the plaintiff security for the costs of an action instituted by a writ to which extra-territorial operation is so given. The Parliament has power under sec. 76 (11.) of the Constitution to confer upon the High Court original juris: diction to determine judicially the propriety of ordering such security to be given, and under sec. 77 (m1t.) to invest the Courts of the States with similar Federal jurisdiction.

Held, therefore, that sec. 10 of the Service and Execution of Process Act 1901- 1912, which provides that any defendant served under the Act with a writ of summons may apply to the State Court out of which the writ was issued or a Judge thereof for an order compelling the plaintiff to give security for costs, and that upon such application the Court or Judge may make the order, confers Federal jurisdiction upon such Court and is within the legislative power _ of the Commonwealth Parliament.

On 9th April 1918 a writ of summons was issued in the Supreme Court of South Anstralia by Charles Thomas McGlew, a resident of South Australia, for service in New South Wales upon the New South Wales Malting Co. Ltd., a company incorporated in New South Wales and having its registered office in Sydney. The Company

had no branch office, nor did it carry on business, in any other State.

By the writ the plaintiff claimed £282 9s. 11d. as damages for breach of a contract alleged to have been made between the plaintiff and the defendants in South Australia. The writ was served on the defendants in New South Wales. The defendants not having

tered an appearance to the writ, the plaintiff on 5th June 1918

oo an interlocutory judgment. The damages were subse- quently assessed at £257 19s. Id., and on 15th July 1918 judgment was entered for the plaintiff for that sum and costs. On 26th 4 August 1918 a certificate of that judgment was registered in the Supreme Court of New South Wales pursuant to sec. 21 of the Service and Execution of Process Act 1901-1912. The defendants thereupon moved in that Court to set aside the registration of that certificate on the ground (inter alia) that the judgment was a nullity within New South Wales.

_ Pursuant to sec. 40a of the Judiciary Act the cause was removed into the High Court, and the motion now came on for hearing.

Knox K.C. (with him Bavin), for the defendants. The Service and Execution of Process Act 1901-1912 is invalid by reason of the provisions of sec. 10 being ultra vires the Commonwealth Parliament. 1e Act is passed under the power conferred by sec. 51 (xxtv.) of e Constitution, which is intended to enable effective service of a it issued by a Court of a State to be made outside the territorial mits of that State. But sec. 10 imposes a condition that the Court of which the writ is issued may order security for costs to be given, which is a matter with regard to which the Parliament of the e alone has power to legislate. The Commonwealth Parliament , under the guise of imposing a condition, legislate as to matters

hich are within the exclusive jurisdiction of the States (R. v. 'VOL. XXV. 29

Barger (1) ; Attorney-General for the Commonwealth v. Colonial Refining Co. (2)). The Parliament of the Commonwealth ca authorize a Court of a State to do something which the Parliame t of that State has not authorized that Court to do, unless it im that Court with Federal jurisdiction. The only relevant power to invest the Courts of the States with Federal jurisdiction is that wit respect to matters arising between residents of different States, but residence in different States is not made the test of the application of the Service and Execution of Process Act. The language of s 10 is not apt to confer Federal jurisdiction, and sec. 13 shows that th intention of the Act was merely to extend the arm of the State Court so as to enable parties to be brought before them. It was the intention of sec. 51 (xxtv.) of the Constitution to enable that to be d and not to authorize Federal jurisdiction to be conferred upon tl State Courts. The Commonwealth Parliament might have provide that no process should be effective under the Service and Execution o Process Act unless the Court from which such process issued hi jurisdiction to order security for costs to be given. If 10 is ultra vires, the whole Act falls with it, for it is not severable (R. v. Commonwealth Court of Conciliation and Arbitration ; parte Whybrow & Co. (3); Owners of s.s. Kalibia v. Wilson

the writ was issued, does not make the judgment which was ob in this case one which will be enforced in New South Wales. mere presence of a defendant in a State at the time a writ is served does not necessarily enable a Court of that State to pronounce. judgment which will be enforced in another State. There must b something that can be called residence of the defendant in that State. If the Court decides against the defendants, a stay should be granted to enable them to apply to the Supreme Court of Sout Australia for leave to defend the action. A question as to the limit inter se of the constitutional powers of the Commonwealth an

(1) 6GLR., 41. (3) 11 C.LR., 1, at p. 26. (2) (1914) A.C., 237, at p. 254; 17 (4) 11 C.L.R., 689, at pp. 697, 7 C.LR., 644, at p. 653. :

of a State, within the meaning of sec. 40a of the Judiciary Act, for if sec. 10 of the Service and Execution of Process Act is ralid a State law forbidding the Supreme Court of a State to order urity for costs to be given would be invalid.

ier K.C. (with him Rogers), for the plaintiff. Sec. 10 of the ce and Execution of Process Act is a valid exercise of the power by sec. 51 (xxtv.) and (xxx1x.) of the Constitution. The ion for security for costs is one reasonably necessary to etually carry out the power given by sec. 51 (xxtv.). The ament might have said that a judgment obtained under the ct should not be enforceable unless the defendant had had an portunity of obtaining security for costs, and it could appoint on to whose satisfaction security for costs should be given, who should judicially determine whether such security should given. It might have enacted that a Judge of the High wt should determine whether security should be given, and might

er sec. 76 (11.) of the Constitution have conferred jurisdiction n the High Court to determine the matter. The necessity for provision for security for costs is a matter arising under made by the Commonwealth Parliament, namely, the Service jzecution of Process Act. If the Parliament could have conferred iction on the High Court to deal with the ordering of security 'costs to be given, it could under sec. 77 (111.) invest a Court State with Federal jurisdiction to deal with the matter; and 'is what has been done by sec. 10.

et K.C. (with him Flannery), for the Commonwealth inter-

Know K.C., in reply. The question of security for costs is not a

arising under a law made by the Commonwealth Parlia-

within sec. 76 (11.) of the Constitution. Such a matter only

where a law within the competence of the Parliament confers or obligations.

New Sour territorial limits of the Colony, beyond which limits the writs of the

The judgment of Grirrira C.J. and Barron, Powers and Ric JJ., which was read by Grirritu C.J., was as follows : - The efficacy of the civil process of a Colony was limited by the

Supreme Court were, as it used to be said, mere waste paper.

By the Constitution (sec. 51 (xxiv.)) power was given to Commonwealth Parliament to legislate with respect to the se of State writs throughout the Commonwealth and the executi of judgments obtained under them. This power is obviously n limited to the mode of performance of the manual act of service, but extends also to the extra-territorial operation of the writ when

Act. Such provisions, by the effect of which a defendant might summoned to appear in the Supreme Court of a distant State,

were obviously open to great abuse. It was incidental, in our opinion, to such provisions to take precautions against that da Pl. xxxrx. of sec. 51 would, we think, clearly cover such a even if it were not sufficiently implied by the nature of the pi itself. (On that point see per Lord Selborne L.C. in Small v. Smil (1).) : The mode adopted by the Parliament was to allow a defendant to seek for and obtain from the plaintiff security for the costs of the action. Such proceedings are familiar in domestic Courts, and are invariably the subject of judicial determination ; that is to say they are determined by the exercise of judicial power. If, then, the Parliament could provide for the giving of security, it follows that it could also enact that the propriety of giving it should be deter mined judicially - in other words, by the exercise of the judicial power of the Commonwealth. The jurisdiction to exercise that power wa original jurisdiction, which, in such case, would arise, within tht meaning of sec. 76 (11.) of the Constitution, under a law made by the Parliament, and might therefore be conferred upon the High Court. By sec. 77, any Court of a State might be invested with a like juris- diction. This is exactly what the Parliament did. It provided (1) 10 App. Cas., 119, at p. 129. q

nsec. 10 for the exercise of judicial power, i.c., the judicial power Commonwealth, and said that it should be exercised by the me Courts of the States in which the suits were pending. In it opinion, the Courts were thereby invested with Federal juris- iction in respect of such matters,

Act in question is not the only instance of investing State s with Federal jurisdiction in respect of merely incidental ers in a suit (see, ¢.g., Judiciary Act, secs. 17 and 45). No ticular form of words is necessary to invest the Court with such iction ; it is sufficient that the Court is empowered to exercise

objection that the Act is an invasion of State rights is there- » without foundation.

cause having been removed into this Court, we must pronounce proper judgment upon the motion, which, in our opinion, is that be dismissed with costs, including costs in both Courts.

van Duffy J. desired him to say that he did not propose to deliver iy judgment in the case.)

Motion dismissed with costs in the High Court and the Supreme Court. Stay of

proceedings for three weeks.

citors for the plaintiff, Zsbister, Hayward & Magarey, Adelaide, y & Russell.

Solicitors for the defendants, Perkins, Stevenson & Co.

Solicitor for the Commonwealth, Gordon H. Castle, Crown tor for the Commonwealth.

At a glance

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Judgment (39 paragraphs)

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