Glenmont Investments v Royal Agricu & Horticultural Society SA & Ors

[2001] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S182 of 2000

B e t w e e n -

CECIL GREGORY SOLOMONS

Applicant

and

DISTRICT COURT OF NEW SOUTH WALES

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

THE QUEEN

Third Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2001 AT 9.33 AM

Copyright in the High Court of Australia

__________________

MR J. BASTEN, QC:  If the Court pleases, I appear for the applicant.  (instructed by John Bettens & Co)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:  If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the second respondent.  (instructed by I.V. Knight, Crown Solicitor)

MR S.J. GAGELER, SC:  If the Court pleases, I appear for the third respondent who is correctly identified as the Commonwealth Director of Public Prosecutions.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   There is a certificate from the Deputy Registrar saying that she has been informed by the first respondent that the first respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.  Yes, Mr Basten.

MR BASTEN:   If the Court pleases, the case raises two significant questions concerning the Commonwealth’s scheme for investiture of authority in State courts exercising federal jurisdiction.  One question concerns the extent of the jurisdiction so vested.  The other concerns the process by which State laws are picked up and applied in a court exercising federal jurisdiction.  Your Honours, we start with the proposition, as expressed by Justice Dixon in Williams and set out at page 71 of the application book at about line 33, that the policy disclosed by section 68 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 justice.

That comment on the policy, your Honours, is also reflected in the terms of section 79 and 80 of the Judiciary Act which require the application of State laws in all cases to which they are applicable.  As your Honours will be conscious, in Pedersen v Young Justice Kitto said that that meant that State laws were picked up with their meanings unchanged.  Your Honours, the President’s conclusion in this case, which was that the term “offence” in the Costs in Criminal Cases Act could not apply to a federal offence, would have far reaching ramifications.

The Costs in Criminal Cases Act provisions are perhaps most conveniently set out at page 28 of the application book.  Section 2 provides “The Court . . . in any proceedings relating to any offence” may grant a certificate.  If federal prosecutions in State courts involved the application of an Evidence Act or a Bail Act which does not of its own force deal with offences under federal law – and one would think that would always be the case – then according to the approach which the President appears to have accepted, those Acts would never apply in relation to federal offences.  That is neither consistent with authority nor with the underlying policy which Justice Dixon expressed in Williams.

The second question, your Honours, is whether the Costs in Criminal Cases Act did not apply because despite its name, it did not apply in the exercise of the court’s criminal jurisdiction but independently of it.

GLEESON CJ:   Mr Basten, there seems to be a matter of general importance.  We have a division of opinion in the Court of Appeal on the subject.  Perhaps we might be assisted by hearing what the Solicitor has to say at this stage.

MR BASTEN:   If the Court pleases.

GLEESON CJ:   Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, we do not suggest that the operation of section 79 and section 68 of the Judiciary Act are not matters of importance or matters that are also intrinsically interesting.  What we do say is that this is not a case where the operation of those two provisions can be usefully examined by this Court because, in our submission, this Court will almost inevitably come to the same conclusion as that reached by the Court of Appeal.  It is true that in the Court of Appeal there were some differences as to reasoning but, in our submission, the result that was reached by the Court of Appeal is one that would be almost inevitably reached by this Court.

We say that because, in relation to section 79, if the question be whether the relevant provision of the New South Wales legislation is applicable, in the terms used by section  79, to the hearing of federal offences, then we say that one has only to consider the proposition of whether a failed federal prosecution should result, in effect, an order for costs or a recovery of costs against the New South Wales consolidated revenue.

McHUGH J:   But what Justice Kitto said in Pedersen v Young cannot be translated literally.  Some gloss is put on it in John Robertson in relation to court where it was said a statute that refers to a court, which would mean a court of a State, could nevertheless be picked up by 79, and it may well be that in the light of what was said in that case and some of the subsequent cases that some of the statements in the earlier cases in this area might have to be looked at again.

MR SEXTON:   Well, your Honour, there is obviously a difference between a case where there is a reference to a court – and there is a number of authorities on that proposition – and this kind of situation here where, of course, it is not the reference to the court that is in issue.

McHUGH J:   No.

MR SEXTON:   But in our submission, it is the question of applicability that really determines the operation of section 79 and apart from the – the question of principle has just put it forward.

McHUGH J:   Does not the force of your argument depend upon the proposition that like jurisdiction in respect of offences against the laws of the Commonwealth is not – sorry, the jurisdiction of the Commonwealth in relation to offences against the laws of the Commonwealth is not a like jurisdiction as to that of State laws?

MR SEXTON:   Yes, it does, your Honour, but it is perhaps more analogous to Owens v Commissioner of Stamp Duties where, in that case, without really spelling out the propositions that were being made in relation to section 79, it is pretty clear that the court thought that the notion of applicability was out of the question in a situation where it was a State law, that simply, on the face of it, would not be picked up by section 79.  So, in our submission, if one looks at the section 79 question, and putting aside for a moment how it was addressed, in some respects in the Court of Appeal the conclusion that would be reached in this Court, we say, is that section 79 would not pick up this particular provision of the New South Wales legislation.

It would be an extraordinary proposition that an approach could be made to the relevant New South Wales official to recover the costs of a prosecution for a federal offence, that, on the face of it, section 79, would not have that operation.  So that although there may be some interesting questions as to the operation of section 79, in a general sense, we say that this is not the right case to look at those because the same conclusion or the same result as that arrived at in the Court of Appeal will be reached by this Court and that one can say that pretty confidently now.

Now, your Honours, on the question of section 68, we say that the same proposition operates.  In other words, that if one looks at section 68 and the question of whether this is the application under the State legislation with respect to the trial and conviction of the accused, that, on all the authorities, the conclusion will be that it is not and that in those circumstances section 68 will not operate either to pick up the particular State provision.  So that, in those circumstances, the result will be in this Court the same as that arrived at in the Court of Appeal.  On this particular question the majority judgments in the Court of Appeal were effectively of the same tenor.

McHUGH J:   To what extent does your argument depend upon an application under the Costs Act being something quite separate from the actual trial itself and its procedures ‑ ‑ ‑

MR SEXTON:   Well, in relation to section 68, it does depend on that proposition, but we say that all the authorities, for example, Gurnett and other authorities, the ones referred to by my learned friend, would be to that effect.  So that section 68 ultimately will not assist my friend and, as we have suggested, neither will section 79.

Now, as your Honours appreciate, and as your Honour Justice McHugh has said, the authorities in this area are not entirely, perhaps, consistent across a period of years and there may be cases that would squarely raise some of the problems raised by those decisions and in Edensor some of these matters were argued and some of the judgments in that case address some of these questions.  But, in our submission, this case will not squarely raise those questions because it is not a case where, in our submission, there is any real uncertainty as to what the result will be, however it might be arrived at.

GLEESON CJ:   I saw some references in the materials to the possibility of the State Treasury being made liable for the cost of a failed Commonwealth prosecution.  The State Treasury is already bearing part of the cost of a failed Commonwealth prosecution anyway and I always used to be told that was taken care of in the Grants Commission, which is impenetrable.

MR SEXTON:   Well, I imagine in a general financial sense, your Honour, that there are those arrangements, but looking at it conceptually in the way that the Judiciary Act was intended to operate, particularly section 79, it is our submission that would be a very unlikely result even though, of course, outside the court system, it could be addressed financially in another way.  I simply cannot tell your Honour how it is addressed at the moment in a general sense but, in our submission, in terms of how section 79 is intended to operate, we would say that that would be a most unexpected result and, therefore, it would, along the lines of Owens v Commissioner of Stamp Duties, be a case where there was a finding that the relevant State law was not applicable and so not picked up by section 79.  Your Honours, I cannot really add on either of those two issues.  They are our submissions, your Honours.

GLEESON CJ:   Thank you.  Mr Gageler.

MR GAGELER:   Your Honours, standing back from the detail of the precedent and looking at the result in the Court of Appeal, it is that the State of New South Wales is not by force of Commonwealth law made liable to pay the costs of an accused or defendant in a failed prosecution by a Commonwealth officer for a breach of Commonwealth law.

GLEESON CJ:   Well, it pays for the judge and it pays for the court.

MR GAGELER:   It does so, and that follows from section 77 of the Constitution, that is, it is a result of vesting federal jurisdiction in State courts. Here there is something rather different going on and, your Honours, the result is hardly a surprising result and, in my submission, it was reached by the majority of the Court of Appeal along entirely orthodox means. The present, in my respectful submission, is not a case in which it is appropriate to explore some of the more interesting questions that may well arise in the application of section 68(2) or 79 of the Judiciary Act.

If your Honours look at the relevant provision in issue, that is, section 2 of the Costs in Criminal Cases Act, your Honours will see, on its face, that it is properly construed as applying only to “proceedings relating to any offence” against State law.  One gets that simply as a matter of interpretation, particularly when one applies section 12 of the Interpretation Act of New South Wales.  It applies only, relevantly, after the trial and acquittal.  Your Honours will see that an order under the section does not in any way determine rights.

GLEESON CJ:   How does this work in a case where a person that is charged with drug offences, some of them being offences against the law of the Commonwealth to do, for example, with importation and some of them being offences against a State law to do with selling them and distributing them?

MR GAGELER:   Well, your Honour, in those circumstances, there would be no difficulty with the word “offence” in subsection (2).

GLEESON CJ:   What would happen in practice?

MR GAGELER:   In practice there would be a question as to whether the entirety of the proceedings were in federal jurisdiction.  If they were in federal jurisdiction by virtue of section 39(2) of the Judiciary Act, then there would be a question as to – well, no, then section 79 would pick up the State Act and in so far as the State Act applied to State offences, that would be the end of the matter.  The State Act would be applicable to the State offences that were pursued in federal jurisdiction.

GLEESON CJ:   But how would that work in practice?

MR GAGELER:   With no violence to the Act at all.

GLEESON CJ:   How would you work out the costs?

MR GAGELER:   Well, the costs – and this is a point that I was going to come to, your Honour – the question of working out the costs is an administrative decision that is made by the Director‑General of the State Attorney‑General’s Department under section 4.  So it would be an administrative decision to be made by the Director‑General after a certificate is granted under section 2 and the Director‑General would properly exercise his discretion only to deal with those costs that relate to the State offences, if any.  That is how it would work.

Your Honours, that is another point that I wish to make, that section 2 is simply a machinery provision, that is, it does not determine rights and it certainly does not determine the rights of the parties to the prosecution.  It is simply a preliminary step which then may or may not lead to a State official exercising a discretion under section 4(2) which, if exercised, will then lead to a payment out of consolidated revenue under section 4(6).  Now, that is the way this Act works.  If one then goes to the two provisions of the Judiciary Act that are said to pick it up, section 68(2) can only pick it up if the law is characterised as one “with respect to . . . the trial and conviction on indictment” of an offence.

Now, the words “with respect to” are words of degree.  They require a judgment to be made.  They require a line to be drawn and, in my submission, the line is here appropriately drawn.  It is further removed from

the trial and conviction than is an appeal which this Court has held did not fall within that language in section 68(2) in that it does not involve the same parties.  It cannot affect in any way the trial process or the outcome of the trial.  If section 68(2) were to pick up the law, then it could only pick it up and apply it by analogy, and the analogy must break down.

The analogy breaks down after section 2 of the law.  The analogy does not flow through to the entirety of the legislation.  It cannot make a Commonwealth official stand in the shoes of the State official who would otherwise exercise the discretion.  Your Honours, that is why section 68(2) does not apply.  Section 79 of the Judiciary Act certainly ‑ ‑ ‑

GLEESON CJ:   Just before you go any further, is that the proposition for which the minority judgment in the Court of Appeal would stand, that somebody other than the New South Wales Director‑General would respond to this certificate?

MR GAGELER:   No.  My point was to say, your Honour, what one would have would not be the State law operating in a manner that one can understand is consonant with the intention of the New South Wales Parliament.  One would have a very odd operation of the State legislation for that to be picked up by section 68(2).  So far as section 79 of the Judiciary Act is concerned, there are two reasons why it is inapplicable, only one of which is that section 79 does not do anything more than pick up a State law with its meaning unchanged.  But the separate and preliminary reason is that this section is entirely beyond the scope of section 79 in that it has nothing to say about the rights of parties to a matter within federal jurisdiction.

That was the point in Owens’ Case and Owens’ Case, your Honours will recall, was favourably cited for that proposition in ASIC v Edensor at paragraph 79 and paragraph 139.  So that is a reason why one does not even get to the potentially more interesting question of what it means to pick up State laws with their meaning unchanged.  If your Honours please.

GLEESON CJ:   Thank you.  Mr Basten.

MR BASTEN:   Your Honours, it is clear from subsection (3) of the Act that the identity of the prosecutor is not a factor upon which possible liability of the State depends because it is clear, perhaps from subsection (2) and (3), that there may be a private prosecution before a justice which would be picked up by this provision.  Secondly, if there is an issue as to whether, at the end of the day, rights are determined, it would appear that Mr Gageler is seeking to raise a question as to whether this is a non‑judicial function being imposed on a State court.  That is an interesting question,

although it was not one which was relied upon below.  It can be addressed and the answer is by no means clear, we would say.

Thirdly, your Honours, in relation to the question of the recovery of costs from the State Treasury, the form of that question pressed by the Solicitor is again a matter of interest.  If it is suggested that there can never be an imposition by the Commonwealth law on the State Treasury, then that, one would think, is too broad a proposition.  If it is said that there is some limitation on the combination of 77(iii) and perhaps the incidental power which is raised by this case, then that merely means that there is a constitutional issue as well as the other issues of construction which underlie the arguments my friends seek to put.  That, so far, has not been put either.  In my submission, nothing my friends raised would suggest that the case is one which does not raise a difference of opinion which is open to be determined either way.  If the Court pleases.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal.

AT 9.57 AM THE MATTER WAS CONCLUDED