Dalton v NSW Crime Commission - [2004] NSWCA 454

Reported Decision:
151 A Crim R 56
62 NSWLR 77

Court of Appeal

CITATION: DALTON v NSW CRIME COMMISSION [2004] NSWCA 454

HEARING DATE(S): 26 October 2004

JUDGMENT DATE:
15 December 2004

JUDGMENT OF: Spigelman CJ at 1; Mason P at 14; Wood CJatCL at 94

DECISION: Proceedings dismissed with costs.

CATCHWORDS: CONSTITUTIONAL LAW - Constitution, s51 (xxiv) - Service and Execution of Process Act 1992, s76 - New South Wales Crime Commission - interstate service of summons - whether interstate service valid under federal law - whether s76 supported by s51(xxiv) - concept of "process" - whether "process" in s51(xxiv) confined to proceedings directly connected with the determination of legal rights or the enforcement of law - whether wide enough to encompass compulsory attendance at statutory authority investigating criminal activity. (D)

LEGISLATION CITED: Arbitration Act 1891 (SA)
Constitution s51(xxiv)
Federal Council of Australasia Act 1885 (Imp)
New South Wales Crime Commission Act 1985 (NSWCC Act)
Service and Execution of Process Act 1901 (Cth) s16(1)
Service and Execution of Process Act 1992 (Cth) s76

CASES CITED: Quick & Garran, The Annotated Constitution of the Australian Commonwealth, 1901 ed, reprinted pp617-20
W Harrison Moore, "Executive Commissions of Inquiry" (1913) 13 Colum L Rev 523
Peter M Hall, Investigating Corruption and Misconduct in Public Office: Commissions of Inquiry - Powers and Procedures (2004) Law Book Co
Alliance Petroleum Australia NL v Australian Gas Light Company (1983) 34 SASR 215
Ammann v Wegener (1972) 129 CLR 415
Aston v Irvine (1955) 92 CLR 353 at 364.
Barton v The Queen (1980) 147 CLR 75
Boilermakers' Society of Australia, Queensland Branch, Union of Employees v Brisbane Welding Works Pty Ltd [1965] Qd R 598
Cheney v Spooner (1929) 41 CLR 532
Clough v Leahy (1904) 2 CLR 139
Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27
Grassby v The Queen (1989) 168 CLR 1
Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330
In re Beall [1894] 2 QB 135
Lockwood v The Commonwealth (1954) 90 CLR 177
McGuinness v Attorney-General (Vic) (1940) 63 CLR 73
Ng v The Queen [2003] HCA 20
Singh v The Commonwealth [2004] HCA 43
The Queen v Murphy (1985) 158 CLR 596
The Queen v Rogerson (1992) 174 CLR 268
Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25

PARTIES :
Leigh William DALTON
NSW Crime Commission
Commonwealth Attorney-General (Intervening)
New South Wales Attorney-General (Intervening)

FILE NUMBER(S): CA 40816/04

COUNSEL: Appellant: P Faris QC / Dr J Bleechmore
Respondent and Attorney-General for NSW: M Sexton SC SG / K Richardson
Commonwealth A-G: D Bennett QC SG / M Leeming

SOLICITORS: Appellant: R M Ellinghaus & Lidner
Respondent and Attorney-General for NSW: I V Knight (Crown Solicitor)
Commonwealth A-G: Australian Government Solicitor

CA 40816/04

SPIGELMAN CJ
MASON P
WOOD CJ at CL
Wednesday 15 December 2004

Leith William DALTON v NEW SOUTH WALES CRIME COMMISSION

BACKGROUND

The plaintiff was served in Victoria, where he resides, with a summons requiring…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 454
Decision Date: 15 December 2004

CaseChat Overview and Summary

The New South Wales Crime Commission sought to serve a summons on Mr Dalton, who resided in Victoria, in connection with an investigation into criminal activity. Mr Dalton challenged the validity of this interstate service. The matter came before the Supreme Court of New South Wales, Court of Appeal.

The central legal issue before the Court was whether section 76 of the *Service and Execution of Process Act 1992* (Cth) was constitutionally valid, specifically whether it was supported by the Commonwealth's legislative power under section 51(xxiv) of the *Constitution* to make laws with respect to the service and execution of the process of the courts of the States. This required the Court to consider the meaning of "process" in section 51(xxiv) and whether it extended beyond proceedings directly related to the determination of legal rights or the enforcement of law, to encompass compulsory attendance at a statutory authority investigating criminal activity.

The Court reasoned that the power conferred by section 51(xxiv) of the *Constitution* was not confined to the traditional understanding of court process but extended to the service and execution of any process issued under the authority of a State, including that of a statutory body like the NSW Crime Commission. The Court found that the summons issued by the Commission constituted "process" within the meaning of section 51(xxiv), and therefore section 76 of the *Service and Execution of Process Act 1992* was a valid exercise of Commonwealth legislative power.

The proceedings were dismissed with costs.

Orders

Orders of the court

Proceedings dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	DALTON v NSW CRIME COMMISSION [2004] NSWCA 454
HEARING DATE(S):	26 October 2004
JUDGMENT DATE:	15 December 2004
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 14; Wood CJatCL at 94
DECISION:	Proceedings dismissed with costs.
CATCHWORDS:	CONSTITUTIONAL LAW - Constitution, s51 (xxiv) - Service and Execution of Process Act 1992, s76 - New South Wales Crime Commission - interstate service of summons - whether interstate service valid under federal law - whether s76 supported by s51(xxiv) - concept of "process" - whether "process" in s51(xxiv) confined to proceedings directly connected with the determination of legal rights or the enforcement of law - whether wide enough to encompass compulsory attendance at statutory authority investigating criminal activity. (D)
LEGISLATION CITED:	Arbitration Act 1891 (SA) Constitution s51(xxiv) Federal Council of Australasia Act 1885 (Imp) New South Wales Crime Commission Act 1985 (NSWCC Act) Service and Execution of Process Act 1901 (Cth) s16(1) Service and Execution of Process Act 1992 (Cth) s76
CASES CITED:	Quick & Garran, The Annotated Constitution of the Australian Commonwealth, 1901 ed, reprinted pp617-20 W Harrison Moore, "Executive Commissions of Inquiry" (1913) 13 Colum L Rev 523 Peter M Hall, Investigating Corruption and Misconduct in Public Office: Commissions of Inquiry - Powers and Procedures (2004) Law Book Co Alliance Petroleum Australia NL v Australian Gas Light Company (1983) 34 SASR 215 Ammann v Wegener (1972) 129 CLR 415 Aston v Irvine (1955) 92 CLR 353 at 364. Barton v The Queen (1980) 147 CLR 75 Boilermakers' Society of Australia, Queensland Branch, Union of Employees v Brisbane Welding Works Pty Ltd [1965] Qd R 598 Cheney v Spooner (1929) 41 CLR 532 Clough v Leahy (1904) 2 CLR 139 Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 Grassby v The Queen (1989) 168 CLR 1 Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 In re Beall [1894] 2 QB 135 Lockwood v The Commonwealth (1954) 90 CLR 177 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 Ng v The Queen [2003] HCA 20 Singh v The Commonwealth [2004] HCA 43 The Queen v Murphy (1985) 158 CLR 596 The Queen v Rogerson (1992) 174 CLR 268 Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25
PARTIES :	Leigh William DALTON NSW Crime Commission Commonwealth Attorney-General (Intervening) New South Wales Attorney-General (Intervening)
FILE NUMBER(S):	CA 40816/04
COUNSEL:	Appellant: P Faris QC / Dr J Bleechmore Respondent and Attorney-General for NSW: M Sexton SC SG / K Richardson Commonwealth A-G: D Bennett QC SG / M Leeming
SOLICITORS:	Appellant: R M Ellinghaus & Lidner Respondent and Attorney-General for NSW: I V Knight (Crown Solicitor) Commonwealth A-G: Australian Government Solicitor