New South Wales
Court of Appeal
CITATION: Bagshaw v Carter & 3 Ors [2006] NSWCA 113 HEARING DATE(S): 08/05/06
JUDGMENT DATE:
12 May 2006JUDGMENT OF: Giles JA at 1; Ipp JA at 2; McColl JA at 43 DECISION: The claimant's summons is dismissed with costs. CATCHWORDS: CONSTITUTIONAL LAW - validity of committal proceedings - constitutional validity of s 68 of the Judiciary Act 1903 (Cth) - whether s 68 has the effect of allowing the States to determine the content of federal law - jurisdiction of State courts in committal proceedings - R v Murphy (1985) 158 CLR 596 applied - whether s 68 results in inequality before the law - effect of differences between committal proceedings in different States - Leeth v The Commonwealth (1992) 174 CLR 455 applied - whether committal proceedings negate a claimant's right to a fair and impartial trial. - STATUTES - application under s 48(2)(c) of the Supreme Court Act 1970 (NSW) for Court of Appeal to hear amended summons. D LEGISLATION CITED: Bankruptcy Act 1966 (Cth), s 269
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), s 65
Judiciary Act 1903 (Cth), ss 68(1), 68(2), 78B
Supreme Court Act 1970 (NSW), ss 48(1)(a)(iv), 48(2)(c)CASES CITED: Leeth v The Commonwealth (1992) 174 CLR 455
Reg v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338
R v Butler (1991) 24 NSWLR 66
R v Gee (2003) 212 CLR 230
R v Murphy (1985) 158 CLR 596
Sergi v Director of Public Prosecutions (unreported, NSWCA, 10 September 1991)
Williams v The King [No 2] (1934) 50 CLR 551PARTIES: Leith Gordon Bagshaw (Claimant)
Robyn Carter (AFP Federal Agent) (Australian Federal Police) (First Opponent)
Her Honour Magistrate Jillian Orchiston (Second Opponent)
Director of Public Prosecutions (Commonwealth) (Third Opponent)
District Court of NSW (Fourth Opponent)FILE NUMBER(S): CA 40083/06 COUNSEL: R Killalea/M Eirth (Claimant)
S Vorrieter (First Opponent)
Submitting appearance (Second Opponent)
H Dhanji (Third Opponent)
No Appearance (Fourth Opponent)SOLICITORS: City Law Pty Ltd (Claimant)
Australian Government Solicitor (First Opponent)
I V Knight, Crown Solicitor (Second Opponent)
Commonwealth DPP (E Hayes) (Third Opponent)
No Appearance (Fourth Opponent)LOWER COURT JURISDICTION: Local Court LOWER COURT JUDICIAL OFFICER: Magistrate J Orchiston LOWER COURT DATE OF DECISION: 09/14/2004
CA 40083/06
Friday 12 May 2006GILES JA
IPP JA
McCOLL JA
LEITH GORDON BAGSHAW v ROBYN CARTER (AFP FEDERAL AGENT) (AUSTRALIAN FEDERAL POLICE) & 3 ORS
Judgment
1 GILES JA: I adopt the reasons of Ipp JA as the expression of my reasons for concurring with the orders of the Court.
2 IPP JA: The claimant commenced proceedings in this Court by summons. The summons was amended twice. The latest version, termed the second amended summons, claimed the following relief:
“1. Declaration that Her Honour Magistrate Jillian Orchiston , a Magistrate of a Local Court in New South Wales, did not have jurisdiction to commit Leith Gordon Bagshaw to trial in the District Court of New South Wales.
2. Declaration that the decision of…
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- AGLC
- Bagshaw v Carter and 3 Ors [2006] NSWCA 113
- Case
- [2006] NSWCA 113
- Decision Date
CaseChat Overview and Summary
The claimant, Bagshaw, challenged the constitutional validity of committal proceedings conducted in New South Wales, specifically questioning the operation of section 68 of the *Judiciary Act 1903* (Cth). The dispute concerned whether this federal legislation, which confers jurisdiction on State courts to conduct committal proceedings for federal offences, improperly allowed State laws to dictate the content of federal law or resulted in inequality before the law due to variations in committal procedures across different States. The matter came before the Court of Appeal of New South Wales.
The primary legal issues before the Court were whether section 68 of the *Judiciary Act 1903* (Cth) was constitutionally valid, particularly in its effect on the conduct of committal proceedings in State courts. This involved determining whether the section impermissibly allowed State laws to define the substantive content of federal law, whether it created inequality before the law contrary to constitutional principles, and whether the nature of committal proceedings under State procedures could negate a claimant's right to a fair and impartial trial.
The Court applied established High Court authority, including *R v Murphy* and *Leeth v The Commonwealth*, to resolve these issues. It was held that section 68 validly confers jurisdiction on State courts to conduct committal proceedings in accordance with State procedural laws, without thereby allowing States to determine the content of federal law. The Court found that differences in committal procedures between States did not offend constitutional principles of equality before the law, as the conferral of jurisdiction was a valid exercise of Commonwealth legislative power. Furthermore, the Court determined that the committal process itself, as conducted under the relevant State laws, did not inherently negate a claimant's right to a fair and impartial trial.
Consequently, the claimant's summons was dismissed with costs.
The primary legal issues before the Court were whether section 68 of the *Judiciary Act 1903* (Cth) was constitutionally valid, particularly in its effect on the conduct of committal proceedings in State courts. This involved determining whether the section impermissibly allowed State laws to define the substantive content of federal law, whether it created inequality before the law contrary to constitutional principles, and whether the nature of committal proceedings under State procedures could negate a claimant's right to a fair and impartial trial.
The Court applied established High Court authority, including *R v Murphy* and *Leeth v The Commonwealth*, to resolve these issues. It was held that section 68 validly confers jurisdiction on State courts to conduct committal proceedings in accordance with State procedural laws, without thereby allowing States to determine the content of federal law. The Court found that differences in committal procedures between States did not offend constitutional principles of equality before the law, as the conferral of jurisdiction was a valid exercise of Commonwealth legislative power. Furthermore, the Court determined that the committal process itself, as conducted under the relevant State laws, did not inherently negate a claimant's right to a fair and impartial trial.
Consequently, the claimant's summons was dismissed with costs.
Orders
Orders of the court
The claimant's summons is dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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