New South Wales Crime Commission v Dalton

[2004] NSWSC 786

CITATION:

NEW SOUTH WALES CRIME COMMISSION v DALTON [2004] NSWSC 786

HEARING DATE(S):

23 August 2004

JUDGMENT DATE:

23 August 2004

JUDGMENT OF:

Levine J

DECISION:

1. Declare that a single judge of the Supreme Court of New South Wales does not have the power to set aside an order made ex parte by another single judge of the Supreme Court of New South Wales pursuant to s76 of the Service and Execution of Process Act; 2. The plaintiff, Mr Dalton, is to pay the defendant Commission's costs in respect of the notice of motion filed 13 May 2004.; 3. That part of the plaintiff's summons filed on 16 April 2004 relating to the setting aside of an order made 17 March 2004 pursuant to s76 of the Service and Execution of Process Act 1992 is dismissed.; 4. The plaintiff, Mr Dalton, is to pay the defendant Commission's costs in respect of the partial dismissal of the summons filed 16 April 2004.; 5. The plaintiff, Mr Dalton, is to file and serve any affidavits in support of the balance of his summons on or before 6 September 2004.; 6. The defendant Commission is to file and serve any affidavits in reply on or before 20 September 2004.; 7. The balance of the plaintiff's summons filed on 16 April 2004 stood over for further mention at 9 am on Monday 20 September 2004.; 8. I grant liberty to either party to apply on three days' notice.

CATCHWORDS:

SCR Pt 31 r 2 - separate determination of question of whether ex parte order under s76 Service and Execution of Process Act 1992 (Cth) could be set aside by another judge - prerogative relief

LEGISLATION CITED:

SCR Pt 31 r 2
Service and Execution of Process Act 1992 (Cth) s76

CASES CITED:

Barton v Walker [1979] 2 NSWLR 740
Bird v Free, Minister for Schools, Vocational Education and Training (1994) 126 ALR 475
Ex parte Williams (1934) 51 CLR 545
Farrell v Delaney (1952) 69 WN (NSW) 260
Re Superintendent of Training Centre at Goulburn; Ex parte Pelle (1983) 48 ALR 225
The Queen v Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union (1953) 89 CLR 636
Witness v Marsden & Anor (2000) 49 NSWLR 429

PARTIES :

NEW SOUTH WALES CRIME COMMISSION
(Plaintiff)

v

LEIGH DALTON
(Defendant)

FILE NUMBER(S):

SC 10744 OF 2004

COUNSEL:

I Temby QC
(Plaintiff)

P Strain
(Defendant)

SOLICITORS:

NSW Crime Commission
(Plaintiff)

Ellinghaus v Lindner
(Defendant)

Ex tempore: revised
[2004] NSWSC 786

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

MONDAY 23 AUGUST 2004

10744 OF 2004

NEW SOUTH WALES CRIME COMMISSION
(Plaintiff)

v

LEIGH DALTON
(Defendant)
JUDGMENT (SCR Pt 31 r 2 – separate determination of question of whether ex parte order under s76 Service and Execution of Process Act 1992 (Cth) could be set aside by another judge – prerogative relief)

1 By notice of motion filed 13 May 2004 an application is made pursuant to SCR Pt 31 r 2 that there be a separate determination of the question of law as to whether a single judge of this Court has power to set aside an order made ex parte pursuant to s76 of the Service and Execution of Process Act 1992 (Cth).

2 That notice of motion and the affidavit of Mark William Standen sworn 13 May 2004 have been filed in this context. The respondent to the present motion, Leigh William Dalton, himself in April of this year filed a document described as a summons, seeking an order that an order made by this Court on 17 March 2004 be set aside and that the defendant’s (that is, the present plaintiff’s) summons be set aside.

3 The order made by this Court on 17 March 2004 was an order pursuant to s76 of the Service and Execution of Process Act, giving leave to the plaintiff, the New South Wales Crime Commission, to serve a notice under s16 of the Act, out of the State, on Leigh Dalton in Victoria.

4 The order made under s76 of the Service and Execution of Process Act was made ex parte and was procedural in nature and final in its form.

5 The respondent to the Crime Commission’s present motion consents to the disposition of it pursuant to SCR Pt 31 r 2.

6 I have had the benefit of written submissions for the Crime Commission which I will gratefully employ in disposing of the substance of the motion. The submissions, I add, conform with the evidence of background material in the affidavit of Mr Standen.

7 Upon the order under s76 having been served with the accompanying notice on 22 March 2004, Mr Dalton made a conditional appearance. It was initially contended, as I understand it, that the Commission had no power to summons or subpoena a person outside of this State, and thus the s76 order and the Commission’s summons were invalid. On 16 April 2004 the defendant in the proceedings before me, Mr Dalton, filed the summons to which I have referred, seeking the relief to which I have referred, namely, the setting aside of the s76 order and the summons itself.

8 The Commission submits that an order setting aside the s76 order cannot be made except on appeal to the Court of Appeal or by the institution of proceedings in the High Court of Australia. The relief sought by Mr Dalton is in the nature of prerogative relief. S76 of the Service and Execution of Process Act refers to leave being granted by the Supreme Court of a State; accordingly, an order under that section is made by that Court or a judge exercising the jurisdiction of that Court under that Act.

9 The Service and Execution of Process Act appears not to provide specifically any procedure by which a person affected by a Supreme Court order granting leave under s76 of that legislation can apply to set aside or seek other relief in respect of that order. The matter, as has been submitted by Mr Temby QC for the applicant, falls to be decided by general principles.

10 The Supreme Court of this State is a superior Court of record. Such a court is not subject to prerogative relief and may make conclusive determinations as to non-Constitutional matters which it has jurisdiction to determine, subject only to a court higher in the appellate structure: see The Queen v Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union (1953) 89 CLR 636; Ex parte Williams (1934) 51 CLR 545; Re Superintendent of Training Centre at Goulburn; Ex parte Pelle (1983) 48 ALR 225 at 227; M Allars Introduction to Administrative Law (Butterworths 1990 p119); E Campbell “Inferior and Superior Courts of Record” (1997) 6 JJA 49 at 250 and 258.

11 A judge exercising a function that invokes the jurisdiction of the Court, rather than acting as an individual, exercises the jurisdiction of the Court as a whole, and accordingly to seek prerogative relief from one or more judges of the Court against a judge of the same Court is to require the Court to issue prerogative relief against itself.

12 The matters of principle were considered by Drummond J in Bird v Free, Minister for Schools, Vocational Education and Training (1994) 126 ALR 475 at 479.

“The Federal Court of Australia consists of the judges of the court: s 5(3) of the Federal Court of Australia Act. The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the court acting as such would mean that the authority vested only in all the judges as a group can be treated, as occasion arises, as an authority vested in all save one of the judges and exercisable against that one judge, by the rest. Section 39B of the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the court, ie, in all the judges who make up the court. It matters not that the authority vested only in the group is by force of s 20(1) of the Federal Court of Australia Act exercisable by a single member of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other judges of the court. Authority conferred only on the entire group cannot be exercised by one member, or by some of the members, of that group against another member of the group. To so exclude one member from the exercise of the authority in question by making that member the object of the exercise of that authority would be to do something quite different from exercising the collective authority”.

13 Prior to that the principles to which his Honour referred had been dealt with by the Court of Appeal in this State in Barton v Walker [1979] 2 NSWLR 740, particularly at 751-2.

14 The application of principle is such in the Supreme Court that neither a judge of the Supreme Court nor a judge of the Court of Appeal has an inherent power in the exercise of the Supreme Court’s original jurisdiction to issue prerogative relief against another judge in the Court exercising such jurisdiction. No such power is conferred by statute.

15 What is involved in that which is sought by Mr Dalton was eloquently characterised by Samuels JA (with whom Reynolds and Glass JJA agreed) at 756:

“The proposition that one judge of this Court has authority to declare that another is disqualified from sitting in particular proceedings seems to me, if I may say so, quite absurd. Such an order would fall far beyond the scope of the declaratory power. It is necessary only to point out that no judge of this Court, or of any other court, is bound by the orders or decisions of a colleague of equal jurisdiction or status”.

16 There are exceptions. One I briefly touch upon is a possibility of the availability of the intervention by the High Court of Australia if that Court is moved by Mr Dalton and persuaded to intervene. The other exception relates to notions of fundamental irregularity in respect of which, on the material before me, there can be no suggestion made that any such thing has occurred.

17 The application of the general principles to which I have referred makes it inevitable, in my view, that the principal relief sought by the Commission be granted. It may be open, I can say in passing, that a person in the position of Mr Dalton would seek leave of the Court of Appeal for relief against the original s76 order. As to his standing to pursue such a remedy, see Witness v Marsden& Anor (2000) 49 NSWLR 429.

18 In the course of submissions Mr Strain referred me to a decision of the Full Court in a matter of Farrell v Delaney (1952) 69 WN (NSW) 260, and particularly a passage at 261 from the judgment of Street CJ:

“It is, of course, trite law to say that an order made on an ex parte application may be reconsidered and reviewed, either by the judge who made the original order, or in some cases, by another judge with co-ordinate powers, but in all those instances the application to review is not merely an application to reconsider the correctness of the original decision on the materials then placed before the judge. The application rests in every case upon the production of further materials not before the judge who heard the ex parte application and which throw a new and different light upon the situation of the parties involved”.

19 That, to my mind, does not derogate from the application of the general principles to which I have referred. Rather, that statement reinforces the juridical structure within the Supreme Court of New South Wales, especially, for example, that provides for the change in nature, format, and structure of proceedings from an ex parte hearing to interlocutory proceedings, to final relief. Each of which stage after the ex parte proceedings might otherwise, but in the circumstances to which Street CJ referred, bring about the result for which the plaintiff sought to contend.

20 Accordingly, I declare that a single judge of the Supreme Court of New South Wales does not have the power to set aside an order made ex parte by another single judge of the Supreme Court of New South Wales pursuant to s76 of the Service and Execution of Process Act. I make the following additional orders:

1. The plaintiff, Mr Dalton, is to pay the defendant Commission’s costs in respect of the notice of motion filed 13 May 2004.

2. That part of the plaintiff’s summons filed on 16 April 2004 relating to the setting aside of an order made 17 March 2004 pursuant to s76 of the Service and Execution of Process Act 1992 is dismissed.

3. The plaintiff, Mr Dalton, is to pay the defendant Commission’s costs in respect of the partial dismissal of the summons filed 16 April 2004.

4. The plaintiff, Mr Dalton, is to file and serve any affidavits in support of the balance of his summons on or before 6 September 2004.

5. The defendant Commission is to file and serve any affidavits in reply on or before 20 September 2004.

6. The balance of the plaintiff’s summons filed on 16 April 2004 stood over for further mention at 9 am on Monday 20 September 2004.

7. I grant liberty to either party to apply on three days’ notice.

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Last Modified: 08/30/2004