Plenty v Dillon

[1990] HCATrans 176

A -l.)1 AUSTRALIA,,.i=-- -~~)'>$-«(<c<'-'-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A38 of 1989

B e t w e e n -

SYDNEY GRAHAM PLENTY

Appellant

and

MICHAEL KENNETH DILLON

First Respondent

ROBYN ANN WILL

Second Respondent

ROBERT RAYMOND JENNINGS

Third Respondent

THE STATE OF SOUTH AUSTRALIA

Fourth Respondent

MASON CJ

BRENNAN J

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDING

AT ADELAIDE ON MONDAY, 20 AUGUST 1990, AT 2.16 PM

Copyright in the High Court of Australia

Plenty(8) 1 20/8/90

MR M.L. ABBOTT, OC:  May it please the Court, I appear for

the appellant with my learned friend,

MR T.J. MELLOR. (instructed by Mellors)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court please, I appear with my friend,

MR w.c. CHIVELL, for the respondents. (instructed

by the Crown Solicitor for South Australia)

MASON CJ: Yes, Mr Abbott.

MR ABBOTT: If I could hand up, for the Court's assistance,

a book of authorities and texts which are mentioned

in our list of authorities and a book of the

relevant legislation.

MASON CJ: It is a rather formidable book of authorities.

MR ABBOTT:  If Your Honour pleases, it is not intended that

I should make reference to every one of them. They are there for the assistance of the Court and every

authority that was initially on our list which we

filed over a week ago has been copied.

MASON CJ:  I hope it does not unnecessarily add to the costs of the application.

MR ABBOTT:  I hope so too. There is also a book of the

legislation which was relevant as at 1978, being

the date of these proceedings. I also have, for

the Court's assistance, a chronology; a list of

authorities which includes three new authorities,

so in that sense it is an updated list; and

finally, along with the list of authorities, an

outline of submissions.

MASON CJ:	Thank you.
MR ABBOTT:	It will be seen that perhaps the central

question which arises for the consideration of this

Court is whether at common law there is, or was,

power to enter a private property against the will	of the person in lawful possession merely to serve
a summons. Our argument proceeds on the basis that
there was no power to enter at common law. There
is no statute expressly giving power to enter to
serve a summons, and that if a power to enter is to
be implied under any statute in relation to serving
a summons, it should be no greater power than that
which existed at common law. And so we come back,
on our argument, to ascertaining what is or was the
power to enter upon private property against the will of the person in lawful possession for the
purposes of serving a summons.

I should say at the outset that perhaps the

strongest argument we put forward is that

Plenty(8) 2 20/8/90

other process had to be executed, whereas here,

what was attempted to be done was service, and we draw a distinction which we say we can support by

reference to the authorities between execution on the one hand and service on the other. And if it

be that this Court holds that the process in this

_ case was a process of the monarch within the

~eaning of Semayne's case then we still say that

they were trespassers because what they were trying

to do with that process was to serve it, not

execute it. Our submission is that the difference

between service and execution is very well set out,
for example, in the Service and Execution of

Process Act which divides up into parts service of

summonses in its first part, and execution of

warrants and writs of attachment on the other.

If I may go to our outline of argument and

deal with the first heading: the majority of the
Court of Appeal erred in holding that no trespass

to the appellant's land had occurred, and take the

Court to the passages in the judgment that we say

demonstrate that error. In volume two of the

appeal books at page 399 - I should say at the

outset that what happened in this case that that on

5 December 1978 the first and second respondents

endeavoured to enter upon the land of the appellant

and serve a summons on him, such summons being

directed to his 14-year-old daughter, and they also
endeavoured to serve a notice upon the appellant
and his wife, such notice being issued pursuant to

section 29 of the Juvenile Courts Act.

The facts are set out - at least those facts

are set out at page 393 in the judgment of

Mr Justice White in which he refers very briefly to

those facts. It should also be noted that - and I

think this is admitted at least for the purposes of

this appeal - any implied leave or licence to enter

had been withdrawn and the implied licence to

enter, which is so often featured in a number of

cases, not the least of which being Halliday v

Nevill, has, on our submission, no application or
no place in the consideration in this case.	Upon
that basis, Justice White held, page 399, at
line 12:

The underlined passages all indicate the possibility of the existence of a public duty requiring a police officer to go on to land

against the wish of the owner or possessor and

a corresponding right to do so - for example,

to arrest a person committing or suspected of

committing a felony or other indictable

offence ..... or to execute a warrant of

attachment or a warrant of execution of land

or goods -

Plenty(8) 20/8/90

And then he went on to say, this is at line 25,

that:

Dillon was not following or seeking out

Mr Plenty to arrest him for a minor or

indictable offence. However, he did enter to

serve process in proceedings to which "the

Queen was a party" .

And he poses the question at the bottom of the

page:

Does that mean that the police have an over- riding duty (and corresponding right) to enter

upon land to serve process issued out of the

Juvenile Court when the defendant is under 16

years -

He did say, at page 400, line 14, that:

Service is quite unlike execution.

A comment with which we agree. He says:

It is concerned with the initiation of curial

proceedings, not endorsement of court orders.

But he went on to say, at page 400, line 20:

Nevertheless, it will be seen below that it

was important to enter upon Mr Plenty's land

in this case for the purpose of serving the
summons on the daughter either personally or
non-personally. It could not reasonably be

argued that the police had to wait until the

child was at school to serve her personally or

until Mr Plenty left his farm for supplies to

serve it non-personally.

And his conclusion was, page 401, line 11:

The public interest in the due administration

of justice here tended to over-ride

Mr Plenty's private interest in keeping

"trespassers" away.

We submit that there is no warrant in the common

law for that statement and that unless it is

supported by the common law, whatever the public

interest might be in administration of justice, it

would not override the interest that a man has in

keeping his home secure from persons who wish to

enter on it. His Honour then said, at page 404,

again on the public interest aspect, line 9:

The public interest in insisting that

defendants answer to the charges against them,

Plenty(8) 4 20/8/90

even on seemingly minor matters in complaints,

over-rides their imagined rights to stay away
from the court, hide within their house or
"close" and deny leave or licence to process

servers to come upon the land. Sanctuary of

this kind is no longer recognized by the law.

And he then refers to Your Honour Justice Brennan

in the reference in Halliday's case. He then, at

the bottom of page 404, deals with the notice,

which I will come to later on.	The next, and last
passage which is relevant is at page 405.	He said,
line 8:

However, the police had a right to be there on

the land to effect service at least under
s27(1) of the Justices Act, in order to serve
the daughter's summons non-personally upon

Mr Plenty. That statutory right to be there coupled with the exigencies of the occasion

(including the need for summary curial
attention to the allegation of need of care
and control and the necessity to serve the

parents) combined, in my opinion, to

constitute an over-riding duty for the police

to attend at the land and to go on to the land

on December 5 1978; and an over-riding right

of the police to be there. Accordingly, the

first and second defendants were not

trespassers.

It is our submission that His Honour has first

of all looked to the common law and then looked to

the statute and it would be our submission that he

has ended up, in fact, by saying, well, the common

law has taken him so far, but you can imply a right

to enter by virtue of the right to serve.

MASON CJ: And is that because the magistrate directed

service of the notices on the parents personally?

MR ABBOTT:  In part, I think he gets the "exigencies of the

occasion" phrase by virtue of the direction the
magistrate gave in relation to the notices.	It is

our submission, just going ahead a little bit, that

as you will see from the outline, the notices were

invalidly issued in that the child had never been

brought before the juvenile court and that the only power to issue such notices was after the child had
been brought. And secondly, that there was no
power for the magistrate to give any directions in
relation to their service other than by virtue of

section 29(4) of the Juvenile Courts Act which provides for service by post if the magistrate

wishes it to be so. Otherwise, service is required

to be by virtue of section 27 of the Justices Act,

the provisions of the Justices Act operating where

Plenty(8) 20/8/90

Juvenile Court Act not provide for only personal service; they provide for personal and non-personal service, and our submission is that the magistrate was not able to direct, under the Justices Act that a lawful means of service, namely non-personal, should not occur.

the is silent in relation to

service of any summons or notice under the Juvenile

The other judge who formed the majority, his

short judgment is to be found at pages 416 and 417.

His judgment proceeded on the short point which we

can see at line 12:

There was no trespass on to the

plaintiff's land. The police officers were

entitled to go there seeking to serve the

Juvenile Court Summons addressed to the plaintiff's daughter. They were seeking to

execute a process of The Queen, - the service

of a summons.

So His Honour equates service of a summons with execution of a process and he said, at the bottom of the page, line 23, after dealing with the

implied licence to enter:

The independent right derived from the duty to

execute a lawful process cannot.

So he came to the conclusion, on slightly different

grounds from that of the other judge in the

majority, that service of a summons and execution of a process were synonymous for present purposes

and tha~ the common law provided for the breaking

of doors and the forceful entry on to land for the execution of process, therefore it was appropriate

to do so for serving a summons, therefore there was

no trespass.

May I turn to paragraph 2 of the outline where

we refer to Semayne's case which really is the

fountain-head of all that thereafter has followed.

Semayne's case, decided in 1604, in our book of authorities at pages 1 to 9, we have set out and collected the various reports of Semayne's case

that one can find in the various authorities and I

propose to use the one that appears in the English

Reports, (1604) 77 ER 194. This case is concerned,

in our submission, primarily with resolution 3 on

page 1 of the book of authorities where, in the

English Report reprint of Coke's Reports,

resolution 3 on page 1 is in these terms:

In all cases where the King is party, the

sheriff may break the house, either to arrest

or do other execution of the King's process,

Plenty(8) 6 20/8/90

if he cannot otherwise enter. But he ought

first to signify the cause of his coming, and

make request to open the doors.

And that is also found on page 2 of the book of

authorities, resolution 3:

In all cases when the King is party, the

sheriff (if the doors be not open) may break

the party's house, either to arrest him or to

do other execution of the K.'s process, if

otherwise he cannot enter. But before he

breaks it, he ought to signify the cause of

his coming, and to make request to open doors;

It is our submission that even if it be said

that the summons and two notices were the King's
process, and we argue that it is not the King's
process, the power or right to open doors of
private property exists in cases where the King is

a party only for the purposes of arresting or doing other execution. It is our submission that it does

not exist for the purpose of serving.

BRENNAN J: There is no question of do.ors being broken open

here, is there?

MR ABBOTT:	No, sir, there is no question of doors being broken. It was a country property.
BRENNAN J:	Does the third proposition is Semayne's case

bear upon entry upon land simpliciter?

MR ABBOTT:  We would submit that it does.

BRENNAN J: Is there any case that says so?

MR ABBOTT:  There is no case in which it says so

specifically, and there are very few cases that

deal with Semayne's case and resolution 3. We have

proceeded on the basis that for the purposes of

resolution 3, that states the common law in

relation to entry upon property, whether the

property be through a gate or over a fence or

whatever.

BRENNAN J: But is the assumption well founded?

MR ABBOTT: Perhaps not, but I have not been able to find

authority which indicates that the assumption is

erroneous. That is not to say that such authority

does not exist.

I am reminded of Your Honour's words in

Halliday v Nevill where Your Honour, at page 10,

said that:

Plenty(8) 7 20/8/90

A police officer who enters or remains on

private property without the leave and licence

of the person in possession or entitled to

possession commits a trespass and acts outside

the course of his duty unless his entering or

remaining on the premises is authorized or

excused by law.

we would say that the only authorization or excuse

that the common law gave are the cases or the

resolutions set out in Semayne's case. I agree

that the resolution does not specifically speak of

entry upon land other than via a party's door.

If I could turn to the third paragraph of the

outline where we have collected, or endeavoured to

collect, some of the reference to Semayne's case

that appear, firstly, in the cases, and secondly,

in the texts. The first case, if I might briefly

read from a couple of these authorities, to which I

wish to refer is the case of Harvey v Harvey - - -

MASON CJ: What is the purpose of going to these

authorities; what are they going to demonstrate?

MR ABBOTT:  Hopefully that on the occasions in which the

sheriff or officer of the law was allowed to

legally enter upon premises, forcibly enter or

enter against the will of the person lawfully in

possession, it was confined to cases of either

executing something or arresting. For example, in

Harvey v Harvey, although it was a civil case,

Justice Chitty held in effect that on the issue of

a writ of attachment for contempt of court the

person executing the writ of attachment may break

open the door of a man's home. The best reference

is at page 650 and part of page 651 of Harvey's

case where Justice Chitty said, this is line 6 on

page 650:

And without going into the other books cited

by the Attorney-General to shew that the

privilege of keeping the outer door shut	against process is confined to process in
civil suits, it is sufficient to refer to
Semayne's Case -

and then they deal with Semayne's case -

and that the sheriff might not break any man's

house to take execution unless in the Queen's

case, or for a contempt,' etc. We understand

by this a contempt of any of His Majesty's

Courts of Justice;

At the bottom of the page the court continued to

speak of Semayne's case and said:

Plenty(S) 20/8/90

"Then as to the breaking of the outer door to

execute the warrant, I think that whoever

reads Semayne's case will see that Lord Coke

was making the distinction between those cases

in which the King, standing forward as

prosecutor on behalf of the subject on public

grounds, was party, and other cases in which

the subjects were parties only in respect of

their private rights; but he was not meddling

with cases of contempt. Process of contempt,

however, has been held in other cases to

warrant the breaking of the outer door for the

purpose of executing it:

Then a very brief reference, if I may, to Southam v

Smout which is in our book of authorities at pages

51 and following and at page 63 of the book of

authorities, which is in fact page 320 of the

report in Southam v Smout, Lord Denning, after
referring to Harvey v Harvey dealt with Semayne's

case in this way:

What is the law as to the entry of a

sheriff's officer or a bailiff to enforce

civil process?

He then referred to Semayne's case and to the Earl of Chatham and then he said:

The question in this case is: what

justification by law had the bailiffs to enter

into this house? The most typical case of

process, of course, is entry at the suit of

the King, criminal process.

Then he referred to the third resolution of

Semayne's case. And to that we would add that

Lord Denning was in fact referring to execution of

criminal process, not serving of criminal process,

because he goes on to say, "This request" - that is

the request for entry:

was made in the customary demand:  "Open in

the name of "the King." So at the King's suit
the outer doors may be broken. But it is

otherwise in civil process at the suit of an
individual. It was always lawful for the

sheriff to enter on civil process when the

door was open. The fourth resolution in

Semayne's case said: "Where the door is open

the Sheriff may enter, and do execution at the

suit of a subject, and so also in such case

may the lord, and distrain for his rent or

service."

In our submission, what Lord Denning was

talking about in his elaboration of the resolutions

Plenty(8) 20/8/90

in Semayne's case was basically execution of

criminal process, he was not talking about service

of any criminal service.

To a similar effect, the case of McLorie v

Oxford, which is at page 159 of the book of

authorities, the relevant passage being at

page 165, letter B, where they deal with the

hallowed phrase, "An Englishman's home is his

castle", and then at the bottom of the page, the

last paragraph:

The common law power of entry to effect

an arrest without warrant appears to be and

always to have been extremely limited.

The court then referred to Swales v Cox, and then

at page 166, letter A, in the first paragraph:

Semayne's case confirms the right to enter in hot pursuit of a felon, but, apart

from that, the case is concerned with the

rights of a sheriff to enter a house on the

King's business. This, to our mind, implies that the sheriff had the King's warrant rather

than that he was entering under common law

powers.

TOOHEY J:  Was McLorie a case, Mr Abbott, in which the court

was concerned with entry on to land as opposed to

entry into premises?

MR ABBOTT: It was a dwelling-house.

TOOHEY J:  I know there was a dwelling-house involved, but

was there a question of entry into the dwelling-

house?

MR ABBOTT:  I know they went into the yard because that was

where the car was. Yes, I see at page 160 of our

book of authorities, page 1291 of the report, where

the facts are stated, about 10 lines from the

bottom: 

They found the vehicle subject of their search

in the rear yard of the house - - -

TOOHEY J: The case may stand in a slightly different

category as to some of the other cases where entry

into premises was involved.

MR ABBOTT:  Yes, it may.

TOOHEY J:  Or it may not. At least on the facts there

appears to be a bit of a difference between this
case and some of the others. There is reference to

premises and just at a glance it may be that the

Plenty(8) 10 20/8/90

term there is used to include not only the house

but the land upon which the house is situated.

MR ABBOTT:  Yes. They do say, at page 167 of the book of

authorities, page 1298 of the report, letter B:

We have no doubt that the constables

could have entered 141 Alder Street without a

warrant and despite objection by the occupier

if, but only if, they had followed the driver

to that address, i.e. , if it was a "hot

pursuit" case.

Then they talk about, at letter D:

If they had then returned and were refused

entry -

presumably to the yard -

they would have been entitled to use such

force as was necessary in order to re-enter.

So it appears then that they were dealing with a

car situated in the yard. Your Honour in Semayne's case in your judgment in Halliday v

Nevill. The report of that case begins at page 191

of the book of authorities and Your Honour referred

to Semayne's case at page 201 to page 202 where

Your Honour referred to the privacy of the home, I

think in this passage making no distinction between

the front fence and the front door, but treating the home as a concept of a building around which

there was at least some parameter established and said this, three lines from the bottom of page 11

of the judgment and 201 of the book of authorities:

The first proposition laid down in Semayne's

Case that everyone's house "is to him as his castle and fortress, a~ well for his defence

against injury and violence, as for his

repose" was qualified by the third proposition

in the same case. It was laid down -

and then Your Honour cites the third proposition,

and said:

Where entry is sought to effect an arrest for

a criminal offence, it is a case "when the

King is party". The person effecting the

arrest is entitled not only to enter as of

right but to break down the outer doors of the

offender's home after making the customary

demand - "Open in the name of the King":

Plenty(8) 11 20/8/90

And Your Honour, at the bottom of the page, said,

the last four lines:

At common law, a constable is entitled to

enter on private property to effect an arrest

within the limits of his common law power to

arrest without warrant, although he would be a

trespasser if he entered or remained on the

property for any other purpose.

Well, we are not here, of course, concerned with

arrest but service of a summons and whether that

constitutes execution or whether it is something

different from execution of process, assuming

always that resolution three is the appropriate

resolution that states accurately the common law

applicable.

The last case which I will not read from, but

it is set out in our third paragraph of our outline

of submissions, is the recent case of Lippl v

Haines, a decision of the Court of Appeal of

New South Wales, and I now very briefly want to

turn to the text which we have set out as

references. There is one further text which is not

there, because we were only able to photocopy it

this morning, and that is Bacon's Abridgement of

1832 and I would like to hand up copies of Bacon's

Abridgement for the use of the Court. We have

photocopied pages 204 to 209 which is the section

of Bacon's Abridgement on the execution of writs

but the relevant part is at page 207, Chapter 3, of

this part where the learned author speaks, under

the topic of "Of his breaking open Doors". We say

this is perhaps one of the better expositions of

the law, albeit a couple of hundred years after

Semayne's case, but at least stated the law in

succinct and correct terms as at 1832.

After dealing with Semayne's case in the first

ten lines, the learned author then speaks of

various writs, particularly -

capias, fieri facias, or other process at the

suit of a common person, the sheriff, after

request to open the doors, and denial, cannot break the house of the defendant, and in such

case the sheriff would be a trespasser, though

the execution would be good.

Then the learned author says:

But, notwithstanding this general rule,

yet in all cases where the king is party -

and this is a restatement of resolution 3 of

Semayne's case -

Plenty(8) 12 20/8/90

if the door be not open, the sheriff may break

the door of the party, either to take him, or

to execute the process, if he cannot otherwise

enter therin; but, before he enters, he ought

to signify the cause of his coming, and make

request to have the door opened.

And it is our submission that the expression used

by the learned author "either to take him, or to

execute the process" refers to either arresting or

apprehending on the one hand or executing process

in the nature of apprehending or arresting on the other, because the learned author then goes on to

say, in the penultimate paragraph:

In execution of criminal process against

a party guilty of a misdemeanor -

and I stress already found guilty of a

misdemeanor -

a demand must be made before an outer door can

be broken .....

Upon a capias grounded upon an indictment for

any crime whatsoever, or upon a capias from

the King's Bench or Chancery, to compel a man
to find sureties for the peace or good

behaviour, or even upon a warrant from a
justice of peace, for such purpose the officer

may break open the door of a dwelling-house.

It is our submission that if that accurately states

the law at that time, the common law at that

time, then whilst there was power for the King's

representative to break down the door and forcibly

enter upon land against the will of the person in

lawful possession, it only applied in relation to

the execution of warrants or writs issued on behalf

of the King, it did not apply to summons.	We
stress the omission of anything to do with
summonses from this text.	We argue that no mention
of summons implies that summonses were something

separate because there is no doubt of the existence

of the summons at that stage, and we would argue

and we do argue that the failure to add into the

list of what process gives the right to break down
the door of a dwelling-house, and for that list not

to include summons, implies that in serving a

summons one cannot do so.

That submission is strengthened when one

considers what a summons is. It does not give

power to lay hands - that is to trespass - upon a

person; it does not give any right to lay hold of a

person in any way. The cases refer to it as - in

fact, Pollock and Maitland's History of English Law

Plenty(8) 13 20/8/90

refers to the summons as "the polite summons" on
the one hand and contrasts it with the most violent

form of process, that of outlawry, on the other,

and we say that if you look at just what a summons

is, and the fact that it has to be served not

executed, then there is good reason for its

omission in a text such as this which deals with

the occasions when a man's privacy, that is the

privacy of his home, can be invaded by someone

coming along with a legal document because, as you

see from page 208 and following, it is not even
every warrant from a justice of the peace that

gives rise to the right of the King's

representative to break open the door of a

dwelling-house; it is only some warrants, some of

which are mentioned at pages 208 and following.

To a similar effect, the reference in the text

- the last one - Wood's Institute of the Laws of

England which is to be found at page 280 of our book of authorities and the reference, Wood's

Institute of the Laws of England, published in

1720, page 281 of our book of authorities and at

page 121 of the book, the learned author

encapsulates Semayne's case by saying, in

paragraph ( f) :

In all Cases where the Process concerns

the King, as in a Writ of Quo minus out of the

Exchequer Court in a Civil Cause, or other

Action, where the King is Party, and in

Criminal Causes, as Treason, Felony, etc, the

Sheriff or other Officer (after a Demand to

open a Door, and signifying the Cause of their

Coming, and a Refusal) may break open the Door

of a House to execute his Process.

MASON CJ: But at the moment I do not see how you make this

proposition applicable to entry upon land as such

as distinct from being a prohibition against

breaking open the door of a house.

MR ABBOTT:  I can only argue that in this case the police

were told not to come on the land. It was as

though, metaphorically, the outer door of the house

had been removed to the front of the property; the police knew that entry upon the property was entry against the will of the person in lawful possession

and notwithstanding that they knew that, and that

the implied licence to enter, if there be one, had

been withdrawn, they then proceeded to enter upon

the private property, albeit the land and not the

house, of the appellant.

MASON CJ: But this proposition says nothing about entry

into a house where the door is open, does it?

Plenty(8) 14 20/8/90

MR ABBOTT:	No.
MASON CJ:	Does it say anything about entry into a house

where the door is not locked and can be opened

merely by turning the handle of the door or the

latch?

MR ABBOTT: That is referred to in the texts.

MASON CJ: Is that a breach of the proposition?

MR ABBOTT:  We would say that the cases - we argue that in

cases where a sheriff's officer has got in by

turning the door, he has done so because no one has

said to him, "Don't turn the door handle", the line

has not been drawn at that point in time. He has

got into the house without the owner demonstrating

a desire that the sheriff should not come in that far. The various alternatives are set out in - I

think we will find them in Burn's Justice of the

Peace, which deals with 14 situations in which

arrest can occur. The reference to Burn's is at

page 233 and following of the book of authorities

BRENNAN J: Why are we looking at arrest? Is this not a

case of here is some land which is in the peaceable

possession of Mr Plenty.	A police officer enters
upon it.	In order to justify that and make it not
a trespass, he must show some justification.	He
has not got leave or licence. Where is the
statute? Is that not the proposition?

MR ABBOTT:  Yes.

BRENNAN J: Well, why are we worried about arrests and

MR ABBOTT: Because I was endeavouring to head off an

argument that power to serve under a statute gives

an implied power to enter.

BRENNAN J: That may be so.
MR ABBOTT:	And the question is, if it does give an implied

power to enter, what power to enter is that? The

answer, according to the New South Wales Court of

Appeal being the same power to enter as you had at

common law. So I was endeavouring to start on the

basis that this Court might possibly find there was
some implied power to enter and our submission

being that it would be no higher than that at

common law. But I can proceed straight to the

statute and go on from there without further

considering at this stage the common law.

BRENNAN J:  I do not wish to take you out of the course of

your argument. It is just that I am trying to

Plenty(S) 15 20/8/90

understand what are the issues and it seemed to me

that we were, if I might pun a little, pushing at

an open door. It is the case of there being no door, we are only concerned with somebody being

upon somebody else's land.

MR ABBOTT:  We would say it is as simple as Your Honour has

put it, that they have to show that they have some

right - you said it in Halliday v Nevill at page 12

- they have to show justification or a law that

permits them to do so. The only justification in

law that they can do so is by reference to the

right or the power to serve.

If I could then just briefly go to the - so

the Court can understand what statutory basis there

was for anything being done or not being done, it

is necessary to briefly refer to the legislation

because as you will see from proposition 4 of our

outline, there was an attempt to serve a complaint

and summons addressed to the appellant's daughter

and two notices.	Our outline of argument gives the
Court the reference to those documents.	The

relevant statutory basis from what one can discern

in the evidence appears to be this, that the

appellant's daughter was alleged to have committed

the offence of shop-lifting but had not been

arrested. She was therefore reported under

section 8 of the Juvenile Courts Act, section 8(3).

Section 8 is at page 6 of the book of legislation.

Section 8(3) refers to this section, section 15.

Miss Plenty was thereafter - her matter was

referred by the juvenile aid panel to the Juvenile aid panel or a member of the juvenile aid panel"

caused a "complaint to be laid against the child

alleging that" she "was a child in need of care and

control." That complaint had to follow the

requirements of section 8(1) and (2):

Where it is alleged that a child ..... has

committed an offence, the child shall not be

charged with the offence but a complaint

may •••.. be laid against the child, alleging

that he is in need of care and control.

But you must also allege, by section 8(2), the commission of the offence. Thereafter a justice

summonsed the appellant's daughter and the

complaint and summons was issued under section 61,

at page 30 of the book of legislation.

Section 61(1) - and I draw the Court's attention

that the justice had an option of either issuing a

complaint and summons or, under section 61(2):

Plenty(8) 16 20/8/90

A justice may, instead of issuing a summons, issue a warrant under his hand for

the apprehension of the child ..... until the
hearing of the complaint.

By virtue of section 21 of the Juvenile Courts Act, on page 11, the provisions of the Justices Act applied. In accordance with those provisions

section 57 of the Justices Act, on page 60 of the

book of legislation, provided for the issuing of a

complaint and summons - - -

McHUGH J:  I am sorry, Mr Abbott, what page is that?

MR ABBOTT: Section 57 on page 60 provided for a summons to

issue after a complaint had been made, although it would have been possible under a combination of the

Justices Act, section 61(2), as I have said, to

issue a warrant, and that feature is also borne out
by the Justices Act, section 58(2)(c) which speaks

of on a complaint:

under any Special Act which authorizes the

issue of a warrant in the first instance -

and the Juvenile Courts Act is such a special Act - a justice may, instead of issuing his summons,

issue his warrant.

Justices Act complaint but a summons was issued upon the

So by a combination of the and the

complaint and as the Court will see from the

chronology, it was not the first summons that the

police were attending to serve on 5 December; it

was a fresh summons, but for present purposes we
would submit that makes no difference, that they

had been there once, they were back again with a

fresh complaint and summons which they were

attempting to serve on 5 December 1978.

The service of such summons was under, if any

power at all, section 27 of the Justices Act on

page 48 of the book of legislation. Section 27
provides not only for the services of summonses but

also for any "notice required or authorized by this

Act" and provides for a dual method of service,

alternative method of service, either:

..... personally; or

leaving the same for him at his last or most

usual place of abode -

and those two methods of service applying not only

to summonses but also to notices.

Plenty(8) 17 20/8/90

BRENNAN J:  But if you may serve a person by delivering the

same to him personally, when you do deliver the

same to him personally you commit no assault.

MR ABBOTT:	By touching him with it.
BRENNAN J:	By touching him.  Why is it, if you deliver it

to him personally on his property you commit a

trespass?

MR ABBOTT:  Because you commit a trespass if he has excluded

any implied right or licence for you to come on to

his property.

BRENNAN J: But are you not simply doing what section 27

authorizes to be done, if you go on to his property

and serve him?

MR ABBOTT:  Yes. In one sense the entry on to property can

be said to be coincidental to the service, but the authorities to which I will be referring shortly -

and there are a number of them - have all said that

the power to serve does not imply a power to enter.

BRENNAN J:	I see.
MR ABBOTT:	And those authorities, including

BRENNAN J: That is the question, is it?

MR ABBOTT:  - - -Your Honour's reference in Halliday v

Nevill, page 17, where Your Honour, I think, put

that proposition - - -

TOOHEY J: Are you drawing any distinction at the moment,

Mr Abbott, when you say "him", service on him and

"he" may preclude the police from entering upon the

premises, between the situation of the owner who is

the person to be served and the owner who is not

the person to be served?

MR ABBOTT:  I am drawing a distinction in terms of who has

objected to the police coming on to effect any

service.

TOOHEY J: Whether upon himself or upon anybody who happens

to be on the premises at that time?

MR ABBOTT:  Yes, but I would not like to go that far because

that may give considerations to persons who are in

fact trespassers already on the person's property.

Restricting it to the person in lawful possession

and members of his immediate family who are there.

Just dealing with the notices, the notices were

issued to the appellant and his wife under
section 29 of the Juvenile Courts Act, page 13 of

our book of legislation and section 29(1) provides:

Plenty(8) 18 20/8/90

Where a child is for any reason brought

before a juvenile court, the court may order

that his parents or guardian shall attend at
the court before which the case is heard or

determined during all the stages of the

proceedings, unless sooner excused by the

court.

Subsection (4):

The clerk of court shall cause every such

order to be served upon the parent or guardian

named therein.

Subsection (2):

When the court makes an order under

subsection (1) of this section directed to a guardian of the child who is not a parent of the child, the attendance of the father or the

mother of the child, or both, may also be

ordered.

Then subsection (5) of section 29 deals with service by post and subsection (6) deals with the

power to fine but no power still to bring parents

to court if they do not want to come to court, only

a power to impose a fine on them. And

subsection (7), a power to proceed in their

absence.

It is our submission that the issuing of the notice in this case, and they are to be found in

book two, pages 337 through to pages 340, the

notices were invalidly issued. The child never

having been brought before a juvenile court, the

notices themselves state:

WHEREAS YOU Sydney Graham PLENTY -

the address, et cetera -

a parent -

and then his daughter's name is mentioned -

a child brought before the Juvenile Court at

PORT PIRIE -

McHUGH J:  You are reading "is brought" in section 29 of the

Juvenile Court;s Act; as meaning "has been brought".

MR ABBOTT:  Yes, not to be brought.

McHUGH J: Well that has some odd consequences, has it not?

Does it mean that if a child is to be brought

before the Juvenile Court, no notice can be given

Plenty(8) 19 20/8/90

to the parents until the child has actually

appeared before the court?

MR ABBOTT:  The summons makes mention of that. The summons

says, at page 336, down the bottom:

The court requests that a parent or guardian of the child attend at the hearing with the

child.

It seemed to imply that there is no power to issue

these notices when you issue the summons but the

child is to, as it were, take notice of that and

speak to its parents. But I agree that it would

appear to be an odd consequence that no notice

could be given. On the other hand, I suspect that in 99 per cent of cases, at least one parent would

attend with the child and it may be that Parliament

used the language it does use in section 29 on the

basis that invariably parents will come and that

section 29 was designed to deal with the odd case,

and the very few cases, where neither parent

attends and it is necessary to send a notice to

them to come along.

McHUGH J: But it cannot have that construction, can it,

because of the words "during all the stages of the

proceedings" -

the court may order that his parents or

guardian shall attend at the court ..... during

all the stages of the proceedings -

That must mean from the very first moment the child

is brought before the court, surely.

MR ABBOTT:	I have to argue that it means all further stages of the proceedings after the child has been brought
there.

TOOHEY J: But it is really looking not so much to a

temporal situation as a, as it were, factual

situation in which a child is before the Juvenile

Court, not necessarily on the day on which the proceedings are to be dealt with, but by reason of

some initiating process - in this case a summons -

in which event notice is required to be given to

the parents. And it would be odd if the notice

alerting the parents to the fact that their child

was before the court was not to be given, as it

were, contemporaneously with the issue of the

summons.

MR ABBOTT:  Yes, I agree with that.

TOOHEY J: Because the summons itself identifies the time

and place at which the child is to be dealt with.

Plenty(8)	20	20/8/90
MR ABBOTT:	Yes.	We raise it as a point, but our main point

is that the service of the notice is no better and

no worse than the service of the summons; both

being governed by the provisions of section 27 of the Justices Act and that you do not get any more

or greater power to enter by virtue of the fact

that the notices are notices under section 29 of

the Juvenile Courts Act when the service of the
notices is governed by section 27 of the Justices

Act along with the service of the summons.

But something was made of this by

Justice White in his judgment about the fact that

the magistrate had directed that the service of the

notice take place personally.

May I now turn to our paragraph 5 of our

outline which puts the proposition, in our

submission, that serving a summons and executing a warrant or other "Kings Process" are fundamentally

different activities in law and that if Semayne's

case has some reference to the common law rights to

do things, then serving a summons is nothing to do

with execution and is different from it. The

reference there is to Reg v Holsworthy Justices

which is to be found in the book of authorities at page 48, and at page 49 Lord Goddard who was there

dealing with section 46 of the Offences against the

Person Act and it was argued that the jurisdiction

of the justices to hear and determine the charge of

assault which was an assault upon the process

server was ousted because what had happened in this
case was there was an attempt, so it was said, to

levy execution under the process of any court of

justice.

MASON CJ:  But why are we returning to this question? I

thought we had managed to sidestep it earlier, as a

result of Justice Brennan's observations to you.

Are we not concerned with the existence of

statutory power or statutory obligation and how

does this help us to ascertain whether or not there

is statutory authority to serve in this way?

MR ABBOTT:  Only if one decides to then investigate how much

power to enter is derived from the power to serve

under the Justices Act.

MASON CJ:  Is this case really going to help us on that,

because as I understand it, it determines the

question of King's process.

MR ABBOTT:  Yes. Well, I will not refer any further to that

case then, if Your Honour pleases. I will go to

those cases in which the power to enter or lack of

it has been discussed in terms of a power to do

something else and those cases are set out in

Plenty(8) 21 20/8/90

paragraph 9 of our outline of argument.

Paragraph 9 subparagraph (ii): in our submission a

mere power to serve summonses and notices under

either the Justices Act or Juvenile Courts Act, or

both, in our submission does not confer or imply

any power to enter upon private property against

the will of the person in lawful possession. And

we refer there to the judgment of Justice Cox in

~he minority of the Court of Appeal. His judgment

is to be found at pages 446 and following of volume

two of the appeal book. At page 409 he dealt with

this very question, the existence of a statutory

power. Line 10 he said:

That leaves the question whether the

police in this case had a statutory power to
enter regardless of the appellant's wishes.

The relevant provisions of the Juvenile Courts

Act and the Justices Act are described in

White J.'s reasons. Certainly there is no

express power to enter land conferred by the

legislation and, having in mind the common

law's deeply entrenched mistrust of

ministerial claims of this sort, such a power
should not lightly be inferred. Mere

inconvenience in the carrying out of the

statutory scheme would not, I think, be

enough. If the Acts can be made to work

without relying upon coercive powers of

service, then probably such powers should not

be read into them.

MR ABBOTT:  He then dealt with the notice which I need not

concern the Court with.	He went on to say at
page 412~ line 6:

The courts have been pressed time and again,

as the reported cases testify, to infer a

Parliamentary grant of power to an official to enter private property against the owner's

wishes on the ground that a particular

legislative policy would be frustrated, to a

greater or lesser degree, without it, yet such

invitations to erode the protection of the

individual that is secured by the law of

trespass have always been declined in the

absence of express terms or plain necessity.

For some examples taken from different

jurisdictions -

he has then referred to a number of cases, all of

which are on our list of authorities, and we add to

those the Australian authorities of Lippl v Haines,

(1989) 18 NSWLR 620, which is the most recent

discussion - that is at page 211 of our book of

authorities - and the judgment of Acting Judge of

Appeal Hope, at page 630 to 635, deals with this

Plenty(8) 22 20/8/90

situation. He poses the question, at page 632 of

the report, page 223 of the book of authorities, at

letter B, and this is in relation to the New South

Wales Crimes Act:

The question thus arises whether the section

is to be construed as importing a power to

enter to effect an arrest, that is, to make an

arrest anywhere, and if that involves entering

premises or breaking the door of any premises

in order to enter to effect the arrest, to do

so. In the alternative, powers conferred by the section being to arrest without warrant, does a person acting pursuant to the section

have the same powers of entry which the common

law gave to a person holding a warrant to
arrest?

Whilst I recognize that the cases on our list have all been, I think, cases of attempted arrest and

reference has been made to the statutory power to
arrest, as to whether that gives a power to enter,
it is our submission that the cases by and large
show that the courts have set their face against

inferring any power to enter from the existence of

a power to arrest and, in our submission, how much

more so should that occur where one is arguing that

a power to serve should not give rise to a power to

enter.

The authorities are dealt with in some length

by the judge in Lippl's case at page 632 and

following, and His Honour concluded, at page 635 of

the report, or page 226 of the book of authorities,

just above letter E:

Having regard to the nature of the

legislation and its purpose, I have concluded,

as did the Supreme Court of Canada, that a

constable or other person exercising a power

of arrest under s 352 has the same powers of

entry as he would have had if he were

exercising a common law power to arrest.

And then he said, a few lines further down:

In either case the person effecting the arrest

has the s.ame powers of entry as those given by

the common law, but in my opinion has no great

powers.

And a few lines further down:

Again it is not to be imagined that Parliament

intended to confer on constables intending to

effect an arrest without warrant wider powers

of entry than those they would have if they

Plenty(S) 23 20/8/90

held a warrant for the arrest. It follows

that the powers of entry are subject to the

important qualifications which were described

in Eccles v Bourque.

The Chief Justice said at page 622 of the report,

and page 213 of the book of authorities, just above
letter B, that he agreed with the reasons of Judge

of Appeal Hope, and agreed that:

the law as expounded by the Supreme Court of

Canada in Eccles v Bourque -

applied, and then he said, just between letters B
and C:

If a police officer is authorized bys 352 to arrest a person without warrant then,

according to common law principles, it may be

lawful for him to engage in conduct that would

otherwise amount to a trespass for the purpose

of making, or endeavouring to make, such an

arrest. His conduct will be lawful where the

entry is reasonably necessary for the purpose

mentioned, but always provided two conditions

are satisfied. First, he must believe on reasonable and probable grounds, prior to

entry, that the person he is seeking to arrest

is on the premises. Secondly, save in what

the Supreme Court of Canada described as "exigent circumstances", there. must be a proper announcement prior to entry.

Now, we say, in our submission, the power to enter upon premises for the purposes of arresting, whatever its ambit may be in South Australia, is

carefully circumscribed and the case of Lippl v

Haines demonstrates the way in which courts have

continually set their faces against giving any wide

power to enter, even in cases of arrest. How much

more so, in our submission should the power be

circumscribed for the purpose of mere service of

something like a summons.

TOOHEY J: Well, just so that I understand the last

submission, Mr Abbott, if a statute provides, say

in terms comparable to the Justices Act, that

process may be served personally, or by leaving the

summons with a person apparently over the age of 16
at the last known place of abode of the defendant,

and the defendant is known to be at home - let us
assume that other persons are known to be there as

well - but the defendant denies entry to the
process server - and we will take it, entry into

the house - that is the end of the matter, is it,

as far as service on that occasion is concerned?

Plenty(8) 24 20/8/90

MR ABBOTT:  Yes, the summons can be returned and the justice

can issue a warrant.

TOOHEY J:  Or the process server can wait outside until

somebody emerges?

MR ABBOTT:  Yes. But another example of converting one's

home to a mini Alsatia - or whatever the exact

words were in this Court in the judgment of the

majority in Halliday v Nevill.

TOOHEY J: Yes, I understand.

MR ABBOTT:  In Western Australia, in the cases of Dobie v

Pinker, which is one our list of authorities, which

I will not read from, the Western Australian Full

Court has said much the same, and recently, and

this case is not on our list of authorities but it

is referred to in Lippl v Haines, there has been

another decision of the Western Australian Full

Court adopting Dobie v Pinker; that is the case of

Letts v R, (1988) WAR 76, and the relevant

references being at pages 79, 82 and 83.

We urge, in support of our argument, not only

the Canadian case of Eccles v Bourque, not only the
Australian cases to which I have referred, but the

United Kingdom cases of Morris v Beardmore and

Clowser v Chaplin and the New Zealand case of

Transport Ministry v Payn, all of which are

referred to by Your Honour Justice Brennan in

Halliday v Nevill. As our final reference on this,

Your Honour Justice Brennan, in dealing with the proposition of what incidental powers flow from a

power to-arrest; Your Honour dealt with that at

pages 15 and 16 of 155 CLR, and then at page 17 of

the report which is at page 207 of our book of

authorities, Your Honour said, at line 8:

The powers conferred by ss. 458 and 459

were not novel statutory powers, such as the

power to require the provision of a sample of
breath.	The presumption that a statute

creating general powers of arrest intends to

confer a power of entry corresponding with the

common law is not applied to a statute

creating a novel power of a different nature.

The common law presumes that when Parliament

creates a novel power, it does not intend

thereby to authorize the commission of a

trespass to facilitate its exercise. The

general protection which the common law

accords to persons in possession of private

property is undiminished by the creation of the novel power unless Parliament expressly

provides otherwise.

Plenty(8) 25 20/8/90

It is our submission that the power to serve,

and indeed the power for substituted service,

provided by section 27 of the Justices Act,

although, of course, not the ordinary power to

service, but the power of substituted service, at

least when substituted service came in it could

have been said to be novel, and a departure from

the common law, which provided that service could

only be personal and although the power for

substituted service has been part of the English

law since, I think, 1870 something, and in South

Australian law, under our Justices Act, for many many years, it was, at the time of its introduction, at least a novel power of the sort

which Your Honour was describing in Halliday v

Nevill.

BRENNAN J: Are there are cases where the question whether

the power to serve a summons or initiating process

has carried with it a power to enter upon land to

do so? Has that question arisen in any case?

MR ABBOTT:  I have not found such a case.

BRENNAN J: Well in the cases that Mr Justice Cox referred

to at page 412, they are perhaps analogous cases,

but that is as far as it goes.

MR ABBOTT:  Yes, and so far as this case is concerned, so

are the cases that Your Honour referred to in

Halliday v Nevill, analogous only.

BRENNAN J: Yes.

MR ABBOTT:  Our researches have failed to find a case that

provides an example to Your Honour's question, and

so our final point is that if there was neither the

power at common law, nor an implied power to enter

under statute, then the first and second

respondents were trespassers and accordingly there

should have been judgment for the plaintiff. If

the Court pleases.

MASON CJ: Thank you, Mr Abbott. Yes, Mr Solicitor.

MR DOYLE:  Does the Court have our outline?

MASON CJ: Yes. Mr Solicitor, I notice that you also have handed in a volume of authorities and, of course,

needless to say, the authorities to some extent are

common. I reiterate the point I made earlier that

the copying of authorities can, on occasions, and

this may be one of them, unnecessarily add to the

costs of litigation.

MR DOYLE:  Yes, Your Honour. I appreciate that, Your

Honour. Sometimes I am afraid there just does not

Plenty(8) 26 20/8/90

seem to be.time to make arrangements with the other

side to avoid duplication of photocopying, but I take Your Honour's point. I think in most of the other cases in the list we have been able to do

that. I am not suggesting it is any good for my

friend's solicitors, but this particular one we

embarked on our photocopying some weeks ago and

then overlooked making arrangements to ensure that

there was not duplication.

MASON CJ: Yes, well it may be necessary for the Court to

take some steps to ensure that co-operation does

take place with a view to obviating unnecessary

costs.

MR DOYLE:  Yes. If the Court pleases, could endeavour just

to put our submission in a nutshell at the outset

before developing it, and it is that, as my learned

friend said a moment ago, there appears to be no

authority precisely on point, so in a sense it can

be said there is no clear answer in this case on

the existing authorities, but in our submission,
the Court should hold that in serving a summons
under the Justices Act there is a right - and I
underline right notionally - to enter on land - and
again I would underline land notionally - in the

ordinary way - and again I would underline ordinary

way notionally.

That right derives either from the common law

- and one of our submissions will be that at common

law that there must have been such a right

attaching to one who served a summons - or

alternatively, that it arises quite simply and

directly. as a natural implication of the terms of

section 27(a) of the Justices Act and that if that

section authorizes one to serve process personally,

then surely it must authorize entry on the land,

because while that is not the only way of serving

personally, as was said a moment ago, one can of

course, as it were, camp outside the premises and

wait for someone to exit.

But, in our respectful submission,

notwithstanding the common law's great protection

to land owners, there is no particular reason in

relation to the service of a summons, to read the

statute restrictively and as saying, "Well,

although personal service is provided for, you have

got to do it in a way which avoids entry on land".

So we come at it from those two directions, from

the common law, and I will have to go to some of
the old authorities, although briefly, because they
are a little tangential, and then secondly, the

natural implication from the terms of the section,

and in its nature that is one of those points that

while I can repeat it, there is not a great deal I

Plenty(8) 27 20/8/90

can say to develop it. And as the common law -

again just putting it in a nutshell - we submit	that the salient things are that these proceedings
are, within the sorts of principles adumbrated in
Seymayne's case, that they are the King's process -
I will use that term although I should say Queen -
and secondly, we simply point to the function of
the summons and if the personal service does not
carry the right to enter on land then in the
earlier days when personal service seemed to be the
only type of service provided for - non-personal was not provided for - it would seem then that in
truth that one literally would have to either arrest or camp outside the premises.

The other two or three preliminary points we

would make, if the Court pleases, is that this is

not a case which in any way concerns the breaking of doors or forcible entry and so while we refer,

in general terms, to Seymayne's case we submit that one has to be careful not to assume that principles

which relate to forcible entry into the dwelling

house necessarily apply here, because one thing is

clear and that is that the courts gave greater

protection in relation to the dwelling house than

they did as to other parts of the property, and I

will refer a little later just to one of the

footnotes in Seymayne's case which makes it clear

that what it says generally does not, for instance,

apply to a barn on the property. Seymayne's case

is dealing very much with the dwelling house and so

one should be careful not to apply its principles

too widely.

I should also just make the point that my

learned friend not only seems to base his case very

much on Seymayne's case, but he seems to apply here

first of all principles which relate to the

breaking of doors, and secondly he reads the term

"executing process" in a rather narrow sense and

says, "That excludes service of a summons", and

again that is an assumption ·which we do not accept,

although, obviously in some situations one would

read "executing process" as the enforcement of an
order, but in our submission, there is no reason to

read it generally as excluding service of a

summons.

McHUGH J: But at the time Seymayne's case was decided that

can be the only meaning of it, could it not?

MR DOYLE: Well, Your Honour, my submission is simply that

not in all contexts need one read "execution of

process" as meaning, as it were, the enforcement

against the personal goods of an individual as

some compulsive court order. In our submission -

and this may seem a rather bald answer to Your

Plenty(8) 28 20/8/90

Honour, but why should we, as of the date of

Seymayne's case, read it in that narrow sense? The

summons is process.

McHUGH J: Well, because the only way you could get a person

before the courts in terms of criminal process was

by a capias, was it not?

MR DOYLE:  The only way you could force him to attend?

McHUGH J: Yes.

MR DOYLE:	Yes. But, Your Honour, if one accepts that a summons is process - and will refer to one law
dictionary later, but I think Your Honour would find that other law dictionaries support that
view - that process can include a summons, it is
not unnatural in relation to the King's officials
to say they are executing the King's process if
they are serving a summons in proceedings which are the King's process, or if they are executing a capias, or some other type of order.
McHUGH J:	The divisional court did not think that in

Holsworthy Justices, they said execution of

process.

MR DOYLE: True, Your Honour, but that was a section which -

and I will come to it a little later just in an

endeavour to distinguish the case on this very

point - but in the context of that particular

section, in my submission, one would rather

naturally tend to think it had the narrower

meaning. So I do not, for a moment, deny that in

certain contexts one would read it as excluding

service of a summons. My submission is that there

is no particular reason to read it as in all

contexts as excluding service of a summons,

particularly when one bears in mind that a summons

is process. We talk of the writ of summons as the

initiating process and while, as a matter of habit,

we tend not to always or not perhaps readily talk

of service of a summons as execution of a process,

it is process and, in my submission, serving it can

readily be seen as executing it.

Your Honours, the other just general point I

would make, to make things clear, is that we do not

submit in this case that the defendants were able

to rely upon an implied permission from the owner.

The Full Court proceeded on the basis that that

implied permission had.effectively been withdrawn

by Mr Plenty; that the Crown was content to argue

it on that basis before the Full Court and so we

continue to approach it on that basis. So our case

must rest upon a right, not an implied consent from

Plenty(B) 29 20/8/90

the owner, and as we submit, a right derived from

the common law, or from the terms of section 27(a).

McHUGH J:  Can I just follow this? Do you equate the

service of summons with the common law power of

arrest then?

MR DOYLE: .Could Your Honour just elaborate a little? When

you say equate - - -

McHUGH J: Take this particular case: supposing the

daughter was at a children's birthday party at some

strangers; could the officers involved here break

down the door of the neighbour's house to serve the

summons on the child?

MR DOYLE: It is an horrific thought, Your Honour.

Your Honour, in my submission, it is not necessary

in this case to decide whether service of a summons

carries powers which extend to either forcible

entry, or the breaking down of doors of a house,

and in my submission, it cannot be said that as a

matter of logic if I submit that there is a right

to enter that the rest must follow. For instance,

in the area of civil process Southam v Smout, which

I will come to later, says that the sheriff, in

executing civil process can enter a door in the usual way if it is not locked. But clearly the

case says he cannot break the door down.

So, in my submission, there is no need as it

were to say, "Well either it is every power, right

through to the final forcible entry, or no power".

The law acknowledges situations in which there are

limited powers, or rights of entry, and in my

submission it is not necessary in this case to

decide whether there is, in fact, a power to break
doors, although I have to concede that one would

think probably not, because when one looks back at

Seymayne's case it does seem to have been an

endeavour - although one must be careful when

looking at older cases - to state comprehensively
the position as to the breaking of doors.	So I

accept, Your Honour, that probably there is no

power to break doors, but in my submission it does

not follow then, as it were reasoning backwards,

that you have automatically excluded the power to

make entry in the ordinary way on to land.

Seymayne's case itself, in my submission, seems to

acknowledge that different principles will apply,

and I referred a moment ago to a footnote relating

to entry to a barn on part of a person's property.

GAUDRON J: But what is, "in the ordinary way",

Mr Solicitor? If you happen to know it is somebody

else's property the "ordinary way" - does it extend

beyond implied licence?

Plenty(8) 30 20/8/90

MR DOYLE:  Yes, Your Honour. My argument is certainly

fundamentally different from the implied licence

and in the ordinary way - I think I took those

terms from Southam v Smout, where Lord Denning, I

think, referred to opening the door "in the

ordinary way" - in my submission ordinary peaceful

entry onto land can be called entry in the ordinary

way. One would ordinarily enter land in that way

and I did not use it in any more technical sense

than that, and whether one can then, if the owner

is standing there, barring the way, force one's way

past him, well that is the further issue of

forcible entry. But in this case we are concerned

only with, in a sense, the sort of issue that
confronted the Court in Southam v Smout, what I

will call, adding another adjective, peaceable
entry in the ordinary way, and in my submission

that power at least surely exists and the Court

should say it does.

McHUGH J: But speaking generally about this whole question

of summonses; there is no problem in finding upon
the grant or the imposition of a duty, a power to

do all that is necessary to carry out the duty, but

the implication arises from necessity and it is

limited by necessity. So, why should you imply a

right to enter in respect of a power to serve? I

mean, it is not necessary.

MR DOYLE:  No, Your Honour, but again, with respect, I would

challenge Your Honour's premise that one always

limits the implications to those things that can be

said to be implied of necessity. In my respectful

submission, one of the most obvious ways of serving

a summons personally would be to go to the person's

home and endeavour to give it to him.	If I could
contrast the -

McHUGH J: Yes, but you are seeking a power to do it.

MR DOYLE:	Yes, I am, Your Honour.
McHUGH J: There is nothing to stop somebody doing it that

way?

MR DOYLE:  No.

McHUGH J: And you are seeking a power?

MR DOYLE:  Yes, Your Honour, but I do on the basis that if

we could contrast for instance, the breath test

cases, one cannot necessarily say, in my

submission, that one of the most obvious ways of

administering a breath test is to enter upon the person's land whether he gives you permission or

not. One would expect, in my submission, not unnaturally in that context, that if Parliament

Plenty(8) 31 20/8/90

meant the administration of a breath test to carry
with it the right to enter on land it would have

said so. But when we are talking of personal

service of a summons, in my respectful submission,

the first and most natural thing to do with

personal service is not to camp in the street, or

to, as it were, hunt the person down at his place

of employment, and one would think this must have

been so for all time and history. The most natural

thing to do would be to go to his home, knock on

the door and ask for him. And so, in my

submission, while what Your Honour put to me as a

general principle may be right, with respect, there

is just no reason in the case of personal service

of a summons to read it as excluding what is, I

would submit, the most obvious and natural way of

doing it.

McHUGH J: But this must apply to all forms of summons,

civil and criminal, so that any process server must

have a right to go on an employer's land, a

stranger's land, simply to serve.

MR DOYLE:  Yes, Your Honour. Again I am limiting my

proposition obviously because I can see

difficulties in the wider proposition all the time

to peaceable entry in the ordinary way.	But it may
at first - - -

McHUGH J:  Even though leave and licence has been withdrawn

- that is the hypothesis?

MR DOYLE:  Yes. Even though he knows, as in this situation,

that it has been withdrawn. Query if the owner

then actually resists, but again even if we take

non-personal service, when one thinks about it, the

odd thing is, how do you serve non-personally, but

by leaving the summons at the place of abode, and

so while for a moment the ability to serve
non-personally may argue against the power, in my

submission, the oldest alternative to personal

service, non-personal service, would always involve

going to the place of abode.

McHUGH J: But that is because there is an implied licence

to go on to land and do what is legitimate.

MR DOYLE: Well, I would submit, Your Honour, that obviously

if it hinges on the implied licence then my

argument goes. My submission is, why should we

assume when Parliament in the earlier days gave two

means of service, personal or by leaving at the

place of abode, that it was leaving it all to hinge

upon an implied permission from the owner not

revoked, because for the person seeking to avoid

service then there is nothing simpler than saying,

"I revoke the permission", and it is not stretching

Plenty(8) 32 20/8/90

things to suggest that in earlier times in smaller

communities people would frequently know when

process was likely to be coming their way and all

they would have to do would be send a message to

the sheriff saying, "I withdraw any permission to

come on my land" .

McHUGH J: -Well then they run the risk of being arrested.

MR DOYLE: 

True, and obviously the power to arrest may cut

against my argument, but the fact is that when we
look back into the history very briefly, we do find

that the summons had to be served personally in the

earlier days of the common law, but in my

submission it would be very odd if that all

depended upon the permission of the owner when one

bears in mind that it was one of the two basic ways

of getting proceedings on foot.  Of course, there

is no authority for me or against me and it is a

matter of what implication one draws from that - I

prefer to draw the most optimistic implication,
that it is so obvious, Your Honour, that authority

was not thought to be necessary.

TOOHEY J: Well, it appears to have been accepted by the

Australian courts that the common law in this

respect, as it stood at settlement, became part of

the common law of Australia.

MR DOYLE:	Yes, Your Honour.
TOOHEY J:	Do any of the cases touch on that point at all?
MR DOYLE:	On the significance of the common law being received?

TOOHEY J: Yes, and differences in conditions that might

exist in Australia in the 19th century compared

with England of the 16th or 17th century.

MR DOYLE:  Not that I am aware of, Your Honour, and I say

with some confidence no, but not complete certainty. It is the sort of case, Your Honour,
where when one cannot find direct authority, you

tend to spend a lot of time looking at extremely

peripheral authority, thinking sooner or later you

are going to find something on point, and so

gradually the search goes in ever widening circles

and perhaps of diminishing utility too.

Your Honours, just turning then to the

submissions in the outline, if we take the moment

when Constable Dillon entered the property, that

that moment he had with him the summons which was

to be served either personally or non-personally,

and the notices to the parents which could be

served personally or by post and I think my friend

Plenty(8) 33 20/8/90

has given the Court references to the relevant

we, with respect, would submit that the notices sections of the legislation, and just on that point

were clearly validly issued. There is no reason to

read "brought" in the relevant section in the

narrow sense as meaning a child who has already
been brought before the court.

So Constable Dillon had the choice of personal service and non-personal service and again I just

make the point I made a moment ago that one must not

overlook that non-personal service does itself

involve entry on land unless the place of abode is

right on the boundary, so that one can knock on the

door without entering on the land. So our first

general point is that these proceedings can properly

be described as - and I refer to the proceedings as the King's process, and I just want to refer to two

or three sections in the legislation to make that

clear. First of all the section that my friend has

already referred to, section 8 of the Juvenile

Courts Act, which is in his book of legislation and

I do not think we copied that separately. It is page 6 of my friend's book. So first of all it is

necessary to allege an offence. These are not, as

it were, purely protective proceedings or purely

welfare proceedings.

And then if one turns to section 36 of the

Juvenile Courts Act:

Where a child appears before a juvenile

court constituted of a Judge or special
magistrate on an information charging the child
with an indictable offence (other than

homicide) to which the child does not plead

guilty, the court may, subject to this Act,

hear and determine the matter before the court

in a summary way or proceed to hold a

preliminary examination in respect of the

alleged offence.

That is section 36, Your Honours, page 16 of

my friend's book of legislation and I will not read

from them, but sections 38 and 39 make it clear that

if the child denies the offence then what ensues are

what we would generally recognize as criminal

proceedings in the ordinary way and they may be
disposed of summarily or they may result in a trial

before a jury. Now those proceedings would clearly

be a criminal matter. If the matter was not dealt

with summarily, there would be a jury trial in which

the Crown would formally be a party and so, in our

respectful submission, these proceedings can be

regarded as the King's process because they are for

a criminal offence and they are brought by way of

proceedings, which in the ordinary course of events

Plenty(8) 20/8/90

would result in what we would all recognize as a

criminal trial and in our submission the principles

in Semayne's case do not require for one to say,

"This is process of the King", that there be on

foot, at the relevant moment, proceedings in which

the Crown is a formal party.

For instance, if one thinks simply of the

right of arrest and the powers of entry which go

with that, seem, in relevant respects, to be traced

back to Semayne's case or to be stated there, an

arrest of course will almost always be a mere

preliminary to proceedings and at that stage, that

is of the arrest, there are no proceedings on foot

in which the Crown is a party, and yet an arrest has

been said to be the execution of the process of the

King and in our respectful submission there is no

reason to read "the process of the King" in that

very limited sense. Just on that point could I

refer to what Your Honour Justice Brennan said in

Halliday v Nevill, (1984) 155 CLR 1, and it is case

number 5 in our book of authorities and at page 12

near the top of the page and immediately below the

reference to Semayne's case,

Your Honour Justice Brennan said, this is

about line 8:

Where entry is sought to effect an arrest for

a criminal offence, it is a case "when the

King is party". The person effecting the

arrest is entitled -

et cetera, and Your Honour there clearly took the

view that that was so, even though, at that moment,

there were no proceedings on foot and we would

respectfully adopt that approach, and a similar

point made in that judgment at page 16:

Whether the person seeking to arrest another for a criminal offence is exercising a common

law or statutory power, the case is one "when

the King is party" and when the public

interest in the prosecution of crime prevails

over private possessory interests in land.

And again, we would submit, that that supports the

general approach which we take here. We also rely

in relation to that point, Your Honours, on a short

passage in Harvey v Harvey, which is in my friend's
book of authority and although it may have been

read from I just want to touch on it very briefly.

It is Harvey v Harvey ( 1881) 26 Ch 644 No 3 in his

list at page 22 of the book. This was a writ of

attachment in contempt proceedings and the

particular passage that I rely upon is at pages 649

to 651. If I could start at page 648. It is page

26 of the book. His Honour Justice Chitty, Your

Plenty(8) 35 20/8/90

Honours, is here reading a rather extended passage

from the judgment of Lord Ellenborough in Burdett v

Abbot and at the bottom of the page, page 648,

reading from Lord Ellenborough, he says:

And likewise Choke said, 'Where the King has

an interest, that the writ is a -

I will not endeavour to read that, my Latin is not

good enough -

So the liberty of the party's house shall not

hold where, et cetera, but otherwise it is for

debt or trespass; the sheriff or other cannot break open his house to take him; for this is only the particular interest of the party.

So clearly he is basing it on the King having an

interest in the matter, not the formality of

proceedings being on foot in which the King is a

formal party. And likewise, the bottom of

page 649, page 27 of the book:

Upon the authority, therefore, of that case I
should say that it stands perfectly clear,

that an execution at the suit of an individual

cannot be carried into effect by breaking open

the outer door; and therefore it remains to

be considered whether in this case the house

was broken in the execution of process for the

particular interest of an individual, or

whether it was done for the public weal. That

it falls under the latter description cannot,

I think, be doubted.

Again basing it rather broadly and then finally at

page 651, and he is now into the judgment of

Mr Justice Bayley, still reading from

Burdett v Abbott, at the very top of the page:

I think that whoever reads Semayne's case will

see that Lord Coke was making the distinction

standing forward as prosecutor on behalf of
the subject on public grounds, was party, and

other cases in which the subjects were parties

only in respect of their private rights -

between those cases in which the King,

In my submission that passage also supports the general view that one should not read the notion of the King's process too narrowly. So, we first of

all submit that one can treat these proceedings as

proceedings which meet the description "the King's process" and, for a start, in our submission, that

suggests that at connnon law there would have been a

right of entry, and not dependent upon the

permission of the owner.

Plenty(S) 36 20/8/90

BRENNAN J:  When was a summons - perhaps you are going to

come to this - but when did a summons first come to

be issued with a view to effecting the presence of

a defendant before justices?

MR DOYLE:  I cannot, Your Honour, put a date on that. All I

can say is that it seems to be an ancient

proceeding and I am coming to that point now and
perhaps I will deal with it immediately. It does

appear, as I said, Your Honours, that the summons

is a long-established procedure for the use in the

commencing of summary proceedings before a justice

and while in the 19th century those procedures were modernized and the range of matters which a justice

could deal with were extended, nevertheless, the

summons itself is by no means a modern invention

and if I could go first of all to the passage from Blackstone, which is No 6 in our book, and we have

extracted here what I would take to be an unaltered

text. In other words an original text of

Blackstone. I am afraid the pages here,

Your Honours, are arranged in reverse, so with this

particular authority the pages come up rather than

go down, so we start at the last page. This was

written in, I think, 1759. Page 277, Your Honours,

which is the beginning of "Chapter the Twentieth.

Of Summary Convictions." and the author says there

that his plan is:

to take into consideration the proceedings in

the courts of criminal jurisdiction •.... These

are plain, easy, and regular; -

And then he says:

And these proceedings are divisible into two kinds; summary, and regular:

And he begins with summary and he says:

principally such as is directed by several

acts of parliament (for the common law is a

stranger to it ..... In these there is no

intervention of a jury, but the party accused

is acquitted or condemned by the suffrage of

such person only, as the statute has appointed

for his judge.

And then going on to the next page, 278:

Of this summary nature -

And clearly, if I could interpolate, he is not

talking of something that is, to him, a new thing -

Plenty(8) 37 20/8/90

are all trials of offences and frauds contrary

to the laws of the excise, and other branches

of revenue:

Towards the bottom of the page, II:

Another branch of summary proceedings is that

before justices of the peace, in order to
inflict divers petty pecuniary mulcts, and

corporal penalties,

And he gives instances of them. And then over the

next page, page 279, near the bottom of the page:

The process of these summary convictions, it

must be owned, is extremely speedy. Though the courts of common law have thrown in one

check upon them, by making it necessary to

summon the party accused before he is

condemned. This is now held to be an

indispensable requisite: though the justices
long struggled the point; forgetting the rule

of natural reason expressed by Seneca, -

And he then refers to the verse. And then, at the

bottom of that page he goes on to deal with

"attachment". So it is clear that he is talking of

a process which is not new to him and it is clear

again that it is a process to which the summons was
indispensable. If we could then go to

Stephen's Commentaries which is - - -

BRENNAN J: No, but indispensable only to ensure that the

party is heard before conviction.

MR DOYLE: Yes, Your Honour, and I should have added one

other qualification and also subject, of course, to

cases of arrest, where the party is brought before

the court in custody, but yes, I accept what

Your Honour says.

BRENNAN J: But the point may be this, may it not, that if

this is the true nature of a summons and its

origin, then we are concerned not with something
which is a coercive direction to appear, but

something which is directed to somebody to give them an opportunity to be heard and that rather

takes the analogy out of "King's process" does it

not?

MR DOYLE: Well, with respect, Your Honour, I would actually

submit one can put it the other way that the common

law sought is essential that the person be served

personally. There was no power to proceed if he

were not served personally, although once he was

there were powers to proceed ex parte and that, in

my respectful submission, rather reinforces the

Plenty(8) 38 20/8/90

suggestion that there must have been a power and a

right to go ahead and serve and it would seem odd

if the common law recognized this method and yet

limited its effectiveness by leaving one to resort

to arrest, unless the owner gave permission.	One
does not find in the cases any commentary
suggesting that if the person will not let the

sheriff's officer on the land, then, of course, he

must resort to arrest. Now this was a negative

point and suffers from the obvious limitation to that sort of point, but it is odd when one reads the cases and the text, that one does not find as

it were, in effect "Well now here Mr Sheriff, bear

in mind if you cannot get the owner's permission to

be on the land, you will have to resort to arrest"

and when one bears in mind how much more tender

land owners in those days seem to have been of

their rights, one would have thought that if there

was no right to come on land in a peaceable way,

that that would have been spelt out surely in one

of these many text books.

There is no doubt that the life of the sheriff

in those days was far more exciting, if not

dangerous, than it is now, and yet one finds

nowhere, as it were, the cautionary warning to the

sheriff, that without, at least, the implied

permission of the owner, he is in jeopardy if he

goes on land to serve.

Your Honours, I go then to No 7, Stephen's

Commentaries, and this is just to show the

transition to the more modern times and then I will

move on to a couple of references dealing with

service. This is the 1880 edition of Stephen and

as Your Honours will know it, it seems to be in the

form of a commentary on Blackstone. At page 323 we

find he is really repeating the words of

Blackstone, at the top of the page:

We are next, according to the plan we laid

down, to take into consideration the

proceedings which obtain in the several

courts ..... divisible into two kinds, summary

and regular:

At the bottom of that page again he refers to the

laws of the "excise" and matters determined by

"commissioners of revenue". And then over the
page:

Another branch of summary proceedings, is that which takes place before justices of the

peace.

That is at II. Then at page 330 he says towards

the bottom of the page:

Plenty(8) 39 20/8/90

The course of proceeding before a court of

by the statute 11 & 12 Vict.c.43; summary jurisdiction in general is regulated

Which was, of course, the statute which established

the modern form of summary jurisdiction and that

statute did provide for non-personal service. It

provided for service to be either personal or non-

personal by leaving at the place of abode. My

recollection is that it did not include place of

business. But then describing how matters

proceeded:

Where a written information has been laid

before any justice -

et cetera -

he is to issue his summons to the party

charged, requiring him to appear and answer

the charge: and, if the summons be disobeyed,

he may then issue a warrant~

And so, that is all I seek to read there,

Your Honours. And then could I go to Paley on

Summary Convictions, which is reference No 8, to

look back to some of the history of the summons.

Your Honours, in the interest of time I will not read from page one and following, but there is

beginning there a useful historical summary of the

growth of the jurisdiction of justices. Could I go

across to page 204, which is about half-way through

the photocopied extract. At the bottom of the

page, section 3 - The Summons:

If the information or complaint appears

to justify the interferance of the court of

summary jurisdiction, the next step is for the

magistrate who has received the information to

issue either a summons -

McHUGH J: Which page is this, Mr Doyle?
MR DOYLE:	Page 204 of Paley and it is the first page after

the pages printed in italics. So there are pages

in italics numbered 1 to 11 and then the photocopy

is from a later section of the book.

McHUGH J:	I see, yes, thank you.
MR DOYLE:	So he refers to the summons and at the top of 205

says:

The office of a summons is to inform the

party to be charged of the offence -

and towards the bottom of the page:

Plenty(8) 40 20/8/90

The procedure by way of summons is

prescribed in the S.J.Act, 1848; but,

independently of positive enactment, the law

declares that the magistrates, ..... are bound

to observe the rules of natural justice-one of

which is that the accused should have an

opportunity of being heard before he is

condemned.

McHUGH J: But do any of these books say that summonses could

be issued before 1848, the time of

Sir John Jervis's Act?

MR DOYLE: Yes, Your Honour. Well, Blackstone, in my

submission. He is talking of the summons as the

indispensable requirement, putting aside arrest and

the matters I acknowledge to Justice Brennan, but

what he said was that the common law had laid this

requirement on the justices, that - and I will come

to Burn in a moment - but it is at the bottom of

page 279 of the extract from Blackstone,

Your Honour, which is because it is in reverse.

McHUGH J: Yes, he talks about making it necessary to

summons the party accused before he is condemned,

but that is different from the summons. My

recollection was that, and it is probably wrong, was

that the justice had the power to grant a warrant in order to compel a person to attend before him in any
case in which either his commission extended to or

which he had power under a statute. I thought it
was Sir John Jervis's Act which gave the power to

issue summonses as we know them, but I may be just -

MR DOYLE:  No, Your Honour, I am not denying that the

justice had power to issue a warrant and have the

person brought before him by force, but it is clear,

in my submission, that the alternative method of the

summons is an ancient method and not the result of

Sir John Jervis's legislation, but a couple of other

passages in a moment may make this a bit clearer.

MCHUGH J: Yes.
MR DOYLE:	Going back to Paley and now going over to page

208, Your Honours, in Paley, "Personal Service":

The common law rule, in so far as it is

to be taken as requiring that a defendant must

have strictly personal notice of proceedings

affecting him, may, however, be modified or

wholly abrogated by the provisions of

particular statutes -

And he goes on to deal with them, but Your Honours

will note that he takes the common law as having

required strictly personal notice of proceedings

Plenty(8) 41 20/8/90

and, in my submission, that must mean truly

personal service. He refers, on that page, to some

instances where the common law has said it was not

necessary. At the top of page 209, citing

Lord Cockburn:

"justices ought to be very cautious how they

proceed in the absence of a defendant, unless

they have strong ground for believing that the

summons has reached him and that he is

wilfully disobeying it."

In other words, unless they have got strong grounds

for believing that he was in fact served

personally, and if they proceed, ex parte, without

such strong grounds, then they were putting

themselves in jeopardy, and at about the middle of

that page:

The following case affords an illustration of an implied dispensation of strictly personal

notice to the party liable to be affected by

the judgment of a Court: -

And then he gives some instances. So again he is

talking of the common law, in my submission,

harking back to the year prior to Jervis's Act and

indicating that strictly personal service was

required. And at page 210, or just makes the point

at the top of the page, that there is the option of

the -

summons or a warrant of apprehension.

If we go ·then to Burn's Justice of the Peace, which

is reference No 12 in our book and is the 1869

edition, Your Honours will see from the first page,

but in my submission again, he is talking of law

that goes back earlier than that. At the bottom of

page 1125, the author refers to

Sir John Jervis's Act 11 & 12 Victoria. He sets

out the section from it and at the middle of the

next page 1126, he says: 

It was before the statute absolutely requisite in all cases, unless where the

legislature has in express terms dispenses

therewith, that the defendant should be

summoned, in order that he may have an

opportunity of being heard and making his

defence.

And he refers to some cases there.

This is but natural justice, and if a

magistrate should proceed against a person

Plenty(8) 42 20/8/90

without summoning or hearing him, he would be

guilty of a misdemeanor, -

et cetera. And at 1128, dealing with service

of the summons, Your Honours will see the side-note

about the middle of the page:

In general it is necessary that the

service of the summons should be on the person
of the defendant, unless where personal
service is dispensed with, as is sometimes the

case by statute, or by defendant's appearance.

And, Your Honour, we have supplied, and they should

be loose in the back of Your Honours' books, copies

of the first two cases he refers to there,

Reg v Hall and Reg v Commins, and simply to

illustrate that those judgments in those cases do

in fact maintain that strictly personal service was

necessary, and I will not delay the Court by

reading from them now, but I submit that they

support that proposition. And back to Burn then,

and still at 1128, towards the bottom of that page:

In some statutes it is expressly directed that a service of the summons at the

defendant's dwelling-house shall suffice, and
in these and the like cases, leaving a copy at

the house has been sufficient -

And clearly treating that as the exception. And,

Your Honours, on that point, we also rely upon one

other case which is in the book, although it is a

very by-the-by part of the judgment, Reg v Simpson, (1716-1717) 10 Mod Rep 341, it is No 4 in the book,

and, as the headnote indicates, it was a question

of whether the person, being duly summonsed, if he

then neglect to appear, the justices could then

proceed to examine the case and on proof of the

offence could convict him. And over the page at

757 in the judgment of the Chief Justice Parker,

about four lines from the bottom:

I am of opinion, that the summons must be

personal and therefore it is altogether as

easy to take as to summon.

And the court went on to say that if he was in fact

duly summoned, which in the Chief Justice's view

clearly meant personally summoned, then the court

could proceed. And that emerges a little more

clearly about three pages on, page 771. The case

where the reasons for the court were delivered in

more detail and as the headnote indicates:

Plenty(8) 43 20/8/90

Justices of peace may convict an offender in his absence, upon his default to appear, after

being duly summoned.

So, Your Honours, just pausing there, what we draw

from all that is that first of all this Slli"11lllOns can

be regarded as the King's process.

McHUGH J: Well, could I just take - I am still not

convinced that this was really a common law

conception. You started off with the information and for a long period the justices would not even serve summonses, people would be convicted in their

absence, but when you talk about a summons and

these cases talk about a summons, I am not sure

that you are doing any more than you would under

the ordinary rules of natural justice now. That

you give the defendant an opportunity to be heard.

That is what I was asking you about before, as to

whether or not this question of summons was a

common law requirement which would be served

immediately the information was filed or at the

same time. Does your research show how this method

of serving summonses developed? Did it follow any

particular form other than this notice of the

proceedings?

MR DOYLE:  No, Your Honour, the books to which we had access

were either mainly or entirely books with printing

dates after Lord Jervis's Act, so the forms they

included were relatively modern forms, but in

answer to Your Honour's point, in my respectful

submission, it is anything but clear that, at

common law, defendants were convicted in their

absence if they had not first been either duly

summonsed or, at some earlier stage, duly brought

before the court by a means other than a summons,

and certainly - - -

McHUGH J: Well I think there were some cases where

convictions were upheld, where they were not

proceedings, and that was held sufficient. served, but they had some knowledge of the

MR DOYLE:  Yes, Your Honour, I am not denying that where it

was proven, I have noticed in some of the books

allusions to that and indeed it may be - I think

even one of those two cases I referred to as being loose in the back of the book. I think the second of them is a case where the court upheld the

conviction in the absence of an accused saying that

he clearly knew about it. Yes, my friend just

suggested that it maybe helpful for Your Honours to

look at the extract from an earlier edition of

Burn's Justices which was in Mr Abbott's materials.

This is the 1793 edition of Burns. We see at the

bottom of page 233 - Your Honours see that - and

Plenty(8) 44 20/8/90

then going through to page 248 under the heading

"Summons", and I would submit this bears out what I

have been saying:

In all legal proceedings, the person complained of ought to have notice of the

charge laid against him, and to have an
opportunity of being heard in his own defence.

Consequently, where a person is accused before

the justices, they ought to summon the party

to appear, or issue their warrant to bring him

before them.	The manner of conveying the
parties -

et cetera. And over the page is a general form of

a summons. Your Honours will see that.

McHUGH J: Yes.

MR DOYLE:  So it clearly pre-dates Lord Jervis's Act and in

my submission, while the author is there saying

"ought", in my submission he is clearly enough

saying what they must do, either summons or bring

the person before them by warrant and I was just

saying that I think one of those two cases that was

loose in the back of our book did refer to a
situation where the person was not served, but knew

of the proceedings. Yes, it is the second of the

cases, Your Honours. It is Reg v Commons (1827)

VIII D & R:

This was a rule calling upon the

defendant, a justice of the peace, to show
cause why a criminal information should not be

filed against him, for illegally and corruptly

convicting one William Crudge, in a penalty of

20 pounds.

It refers to the affidavits and the fact that he -

had not been duly sumrnoned ..... to answer the

information laid against him, inasmuch as no

summons for that purpose had been personally served upon him:

And despite that the defendant went ahead and heard

the case. Over the page Chief Justice Abbott said,

about 10 lines from the bottom:

It is admitted that the summons was not personally served, which is clearly irregular; for we have recently decided, that the record of a conviction by default, must show that the

defendant has been personally summoned to

appear to the information. It seems clear,

however, that the prosecutor knew of the

Plenty(8) 45 20/8/90

summons having been taken out against him;

and therefore, though he was not personally

served with it, he has not sustained any

injury, for he might have appeared if he had

thought proper.

So it was only because he clearly knew of the

process and indeed, I think the headnote indicates

that in fact for part of the proceedings he was

actually represented, because I think there is a

reference - it is back in the precis of the

affidavits,"an attorney employed by the prosecutor

attended on his behalf at the hearing of the

information, but was prevented by the defendant

from cross-examining the witnesses". So, at that

stage the court was saying, "Well even though he
was represented by an attorney, the proceedings are
irregular, but as he clearly knew of them, the

court did not grant him the relief".

McHUGH J:  It rather indicates that the whole matter is tied

up with the rules of natural justice rather than

being regarded as part of the process of the court

which was required to be served as a matter of

common law.

MR DOYLE: Well, not in my respectful submission,

Your Honour. Of course, those words are there in

Blackstone but at times, as Your Honour knows, his

language is rather flowery and while, as he says

somewhere else, the course of criminal process is

easy, simple and regular, or something like that,

in my submission all the material suggests that

while the writers of those times may have sourced

the requirement to natural justice, it was

undoubtedly part of the procedural law of the court

and, witness then, Chief Justice Abbott saying,

well, these proceedings are plainly irregular

because they were not served but as he clearly knew

of the proceedings and, indeed, had an attorney

there, we will not grant him any relief.

BRENNAN J: It does give a flavour though, does it not, to

the construction of section 27 which says that it

may be served personally or otherwise. In other

words, section 27 is facultative in the sense that

it does not have to be served personally in order

that jurisdiction may be attracted; it may be

served in the alternative manner.

MR DOYLE:	Yes.
BRENNAN J:	So it really is not conferring a power in any

relevant sense at all.

MR DOYLE:  I would submit it is, Your Honour, because if we

bear in mind the history of it we come from a

Plenty(8) 46 20/8/90

process which must be served personally; then we

find, prior to Lord Jervis' Act as the texts

indicate -

McHUGH J: But if I can just interrupt you, Mr Solicitor,

because that is the whole point, is it not, of

Collins' case, it does not have to be served

personally; it is sufficient that you have got

notice.

MR DOYLE:  Bear in mind he was represented, Your Honour, not

just notice, and of course it could be said - I

have to take the words exactly as they are - but he

was represented by an attorney, and in my

submission that surely is a very significant

qualification to mere notice.

So in answer to Your Honour Justice Brennan,

my submission would be that when we look at the

history of the thing we find a process which had to

be served personally. It would seem in the latter

part of the 18th century and going into the 19th

century statutes begin to provide for non-personal

service. Then Lord Jervis' Act provides it was

complete alternatives. But no one suggests than

when non-personal service becomes a general

alternative that a right which was there before,

namely to go on the land, has now been taken away.

And in my submission, if we look at the process of

service as one of, as it were, historical accretion

where more methods have been made available, it
would be wrong to approach section 27 as one might

if it were a provision coming for the first time,

in my submission we should see it really as

reflecting the history: there is the summons that·

had to be served personally and then here are the

additional statutory means, and no commentators in
particular suggesting, after Lord Jervis' Act, that
the situation as to service has altered in the

sense that rights or powers which were there before

are no longer there.

Of course, my argument is a bit bootstraps in

that if the power was not there ever, no one would
comment, but in my submission one should not read
the addition of the right to serve non-personally as
taking away something that was there before,

assuming the relevant thing was there.

MASON CJ:  We will adjourn until 10 o'clock tomorrow

morning.

AT 4.37 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 21 AUGUST 1990

Plenty(8) 47 20/8/90