R v Ward

[1978] HCA 27

HIGH COURT OF AUSTRALIA

Gibbs A.J.C. , Stephen, Mason, Jacobs and Aickin JJ.

THE QUEEN V. WARD

(1978) 140 CLR 584

22 June 1978

Bankruptcy

Bankruptcy—Offences—Jurisdiction—Court not specially invested with bankruptcy jurisdiction—Appeal—Bankruptcy Act 1966 (Cth), ss. 5, 27, 38*, 269, 273—judiciary Act 1903 (Cth), ss. 39 (2), 68. (1978) 140 C.L.R. 584, at p. 588.

Decision

June 22.
THE COURT delivered the following written judgment: -
The only question before the Court for decision in this appeal is whether the District Court of Queensland has jurisdiction to try and convict a person for offences committed against s. 269 of the Bankruptcy Act 1966 (Cth), as amended. The appellant contends that s. 39 (2) of the Judiciary Act 1903 (Cth), as amended, which operates generally to invest federal jurisdiction in State courts, and s. 68 of the same Act confer jurisdiction on the District Court. The respondent contends that the provisions of the Bankruptcy Act displace the operation of the Judiciary Act and that jurisdiction to try offences against the Bankruptcy Act on indictment is confined to the courts enumerated in s. 27 of that Act. (at p587)

2. Clearly the District Court of Queensland is not a court having jurisdiction in bankruptcy. The District Court is not included amongst the courts invested with jurisdiction in bankruptcy by s. 27 (1) of the Bankruptcy Act, as amended by Act No. 61 of 1976. The courts so invested with jurisdiction are the Federal Court of Australia, the Supreme Courts or the Courts of Insolvency of the various States and the Supreme Court of the Northern Territory. (at p587)

3. Section 5 of the Bankruptcy Act provides (inter alia) that "'bankruptcy', in relation to jurisdiction or proceedings, means any jurisdiction or proceedings under or by virtue of this Act". (at p587)

4. The first step in the respondent's argument is to say that the trial on indictment for an offence against the Bankruptcy Act constitutes "proceedings under or by virtue of this Act", which forms part of the jurisdiction invested by s. 27. Section 269 creates an offence which is punishable by imprisonment for three years. Section 273, which deals with trial of offences, provides:

"(1) Subject to this section, an offence against this Act, other than an offence that is punishable by a fine only, is punishable either on indictment or on summary conviction. (2) Where proceedings for an offence that is punishable as provided by the last preceding sub-section are brought in a court of summary jurisdiction, the court may either determine the proceedings or commit the defendant for trial, but shall not, if it determines the proceedings, impose a period of imprisonment exceeding one year in respect of the offence. (3) Subject to the next succeeding sub-section, an offence against this Act that is punishable by a fine only is punishable by a court of summary jurisdiction. (4) The Court has jurisdiction to try summarily any offence against this Act. (5) Where proceedings for an offence other than an offence that is punishable by a fine only are brought in the Court, the Court may either determine the proceedings or commit the defendant for trial before a court of competent jurisdiction, but shall not, if it determines the proceedings, impose a period of imprisonment exceeding one year in respect of the offence. . . ."

Sub-sections (6) and (7) are not relevant to the present question. (at p588)

5. The expression "the Court" is defined by s. 5 of the Bankruptcy Act so as to designate all and any of the courts enumerated in s. 27. When the provisions of s. 273 are read in the light of this definition it becomes apparent that s. 273 itself is conferring jurisdiction on, or investing jurisdiction in, courts in respect of the trial of offences against the Bankruptcy Act and that in some instances the section explicitly contemplates that jurisdiction will be exercised in respect of such offences by courts which are not s. 27 courts. Section 273 (4) specifically states that s. 27 courts have jurisdiction to try summarily any offence against the Bankruptcy Act. The sub-section is significant in two respects. First, it gives jurisdiction to s. 27 courts to try offences summarily or acknowledges that they have that jurisdiction; it would be an unnecessary provision if those courts already had general jurisdiction to try offences summarily and on indictment by virtue of s. 27. Secondly, sub-s. (4) does not give, or acknowledge the existence of, any jurisdiction to try offences on indictment. Conformably with this view of sub-s. (4), sub-s. (5) then proceeds to authorize the s. 27 courts to commit a defendant for trial before "a court of competent jurisdiction". (at p588)

6. Courts of competent jurisdiction are obviously not identical to, or co-extensive with, the courts enumerated in s. 27. The expression "court of competent jurisdiction" is apt to signify a court which is otherwise endowed with jurisdiction, as for example by the provisions of the Judiciary Act. (at p589)

7. Accordingly, when s. 27 and s. 273 are read together, they take their place alongside s. 39 and s. 68 (2) of the Judiciary Act. Section 273 (5) proceeds on the footing that a s. 27 court, which is not given jurisdiction to try on indictment by the Bankruptcy Act, will commit a defendant for trial on indictment by courts possessing jurisdiction in that respect under the provisions of the Judiciary Act. (at p589)

8. In Pearce v. Cocchiaro (1977) 137 CLR 600 , Gibbs J. (with whom Stephen, Jacobs and Aickin JJ. agreed) found it unnecessary to decide whether ss. 39 (2) and 68 (2) of the Judiciary Act would have conferred on a special magistrate jurisdiction to determine summarily the proceedings in that case. Whether or not s. 273 confers a wider jurisdiction on a s. 27 court than that which would be conferred by the Judiciary Act (ss. 39 (2) and 68) in the case of summary proceedings is of no consequence when considering which are the courts of "competent jurisdiction" in relation to trials on indictment. (at p589)

9. In passing we note that Rich, Dixon and Evatt JJ., in their joint judgment in Adams v. Cleeve (1935) 53 CLR 185, at pp 190-191 , said:
"Section 39 is expressed in terms of perfectly general application, and such an application accords with the principles upon which the enactment proceeds. To exclude its operation upon any part of Federal jurisdiction, more is required than a special provision conferring part of the jurisdiction, either original or appellate, which s. 39 also confers. If the special provision conferred a different authority, or imposed conditions or restrictions or otherwise disclosed an intention at variance with the full operation of s. 39, an intention to exclude it might be inferred." (at p589)

10. We do not think that by the last sentence their Honours were saying that wherever the "special provision" confers a jurisdiction different from that conferred by s. 39 of the Judiciary Act s. 39 is thereby totally excluded. No doubt their Honours had in contemplation a contradictory or inconsistent authority from which it might be deduced that the Parliament was displacing pro tanto the grant of jurisdiction contained in s. 39. As Gibbs J. said in Reg. v. Bull (1974) 131 CLR 203, at p 257 , "s. 39 (2) invests the several courts of the States with federal jurisdiction in any matter arising under any Commonwealth law". In our opinion, this grant of jurisdiction will only be displaced in whole or in part by another statute when that statute evinces an intention to exclude or otherwise limit the jurisdiction conferred by s. 39. (at p590)

11. The Full Court of the Supreme Court was therefore incorrect in granting certiorari and in quashing the respondent's convictions. Moreover, the Court of Criminal Appeal which had earlier decided that it had no jurisdiction to entertain an appeal from the District Court was also incorrect. The Court of Criminal Appeal thought that by virtue of s. 38 an appeal could only be taken from a conviction on a trial by indictment to the Federal Court. The section provides:
"An appeal from a judgment, order or sentence given or pronounced after the commencement of this section by a State Court exercising jurisdiction in bankruptcy or by the Federal Court of Bankruptcy may be brought to the Federal Court of Australia and not otherwise." (at p590)

12. For the reasons which we have already given, a State court which exercises jurisdiction in a trial on indictment in respect of an offence against the Bankruptcy Act is not exercising bankruptcy jurisdiction. Consequently, an appeal lay in this case from the District Court to the Court of Criminal Appeal, not to the Federal Court of Australia. It follows that the ground assigned by the Court of Criminal Appeal for striking out the appeal to it was incorrect. (at p590)

13. It is by no means clear why the Parliament provided that some criminal appeals in bankruptcy offences should go only to the Federal Court, leaving other appeals in trials on indictment to go to State Courts of Criminal Appeal. We do not know whether it is the consequence of advertence or inadvertence. Be that as it may, it is not a matter which justifies us in refusing to give effect to what we regard as the plain words of ss. 27, 38 and 273 read in the light of the statutory definitions contained in s. 5. (at p590)

14. We would allow the appeal. (at p590)

Orders

Appeal allowed.

Order of the full court set aside and in lieu thereof order that the order nisi be discharged.