GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
CECIL GREGORY SOLOMONS APPELLANT
AND
DISTRICT COURT OF NEW SOUTH WALES & ORS RESPONDENTS
Solomons v District Court of New South Wales [2002] HCA 47 10 October 2002 S150/2001
ORDER
1. Appeal dismissed.
2. Appellant to pay the costs of the appeal of the three respondents.
On appeal from the Supreme Court of New South Wales
Representation:
J Basten QC with M N Allars for the appellant (instructed by John Bettens & Co)
No appearance for the first respondent
M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming and B K Baker for the second respondent (instructed by Crown Solicitor for the State of New South Wales)
S J Gageler SC for the third respondent (instructed by Director of Public Prosecutions (Commonwealth))
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth of Australia with R G McHugh intervening on behalf of the Attorney-General of the Commonwealth of Australia (instructed by Australian Government Solicitor)
P A Keane QC, Solicitor-General of the State of Queensland with G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor of the State of Queensland)
R J Meadows QC, Solicitor-General for the State of Western Australia and J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
B M Selway QC, Solicitor-General for the State of South Australia with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Solomons v District Court of New South Wales
Criminal law and practice – Costs – Trial and acquittal in State court on indictment charging offences under a law of the Commonwealth – Power of State court to grant certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) ("the Costs Act") entitling defendant to apply to Under Secretary of Attorney-General's Department for payment of costs from State Consolidated Revenue Fund – Whether s 68 or s 79 of the Judiciary Act1903 (Cth) ("the Judiciary Act") rendered provisions of the Costs Act applicable so as to authorise grant of certificate in federal jurisdiction.
Constitutional law (Cth) – Jurisdiction and powers of State court exercising federal jurisdiction in the trial of a federal offender – Application of the Costs Act – Whether the Costs Act picked up and applied to federal jurisdiction by force of the Judiciary Act – Whether any such operation would be contrary to the provisions and requirements of the Constitution – Whether any such application would be inconsistent with the disposal of the constitutional matter within federal jurisdiction – Whether it would involve the purported exercise…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Solomons v District Court of New South Wales [2002] HCA 47
Case
[2002] HCA 47
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Solomons against the District Court of New South Wales. Mr Solomons had been tried and acquitted in the District Court on an indictment charging offences under a law of the Commonwealth. He sought a certificate under the *Costs in Criminal Cases Act 1967* (NSW) to enable him to apply for payment of his costs from the State's Consolidated Revenue Fund. The central dispute concerned whether the *Judiciary Act 1903* (Cth) rendered the NSW Costs Act applicable to the District Court when exercising federal jurisdiction.
The legal issues before the High Court were whether sections 68 or 79 of the *Judiciary Act* operated to make the provisions of the NSW Costs Act applicable to a State court exercising federal jurisdiction. Specifically, the Court had to determine if such an application would be consistent with the Australian Constitution, particularly Chapter III concerning the exercise of judicial power, and whether it would impose non-judicial functions or burdens on State ministers, officers, and revenue.
The High Court dismissed the appeal, holding that the NSW Costs Act was not applicable to the District Court when exercising federal jurisdiction. The Court reasoned that section 79 of the *Judiciary Act*, which allows State laws to be binding on federal courts, is limited to cases where those laws are applicable and does not extend to provisions that impose non-judicial functions or are integral parts of a State legislative scheme that would be altered if severed. The Court found that the grant of a certificate under the NSW Costs Act was part of a State-established machinery for indemnifying litigants from a State fund, and that such a function could not be picked up by section 79 and imposed on a federal court without infringing constitutional requirements.
The appeal was dismissed, and Mr Solomons was ordered to pay the costs of the appeal.
Orders
Orders of the court
1. Appeal dismissed.
2. Appellant to pay the costs of the appeal of the three respondents.
Background
Background to the litigation
In my view, that argument is determinative of the outcome of the appeal. If it were possible to ignore the requirements of the Constitution, I would, as a matter of construction, have been with Sheller JA. But with the advantage of the constitutional submissions, I agree that the appeal must be dismissed.The facts and applicable legislation The relevant facts and the procedural history of this case are stated in other reasons[61]. Also stated there are the applicable provisions of the Costs Act[62] and Judiciary Act[63], invoked by the appellant.[61]Reasons of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ ("the joint reasons") at [2]-[7].[62]Joint reasons at [8], [10]-[12]; reasons of McHugh J at [35]. The Costs Act is referred to as it stood on 24 July 1998, the date upon which the primary judge declined a certificate to the appellant. The Costs Act was subsequently amended.[63]Joint reasons at [17], [22]. The offence of which the appellant had been charged, and in respect of which proceedings had been brought before the District Court, was a federal offence[64]. Accordingly, the appellant's trial was held by the District Court in the exercise of federal jurisdiction vested on that Court pursuant to the Constitution[65] and the Judiciary Act[66]. In the conduct of that trial, the District Court was performing functions envisaged in respect of federal matters, by what is commonly (possibly inaccurately) described as the "autochthonous expedient"[67]. The relevant "matter" that was the subject of the jurisdiction so conferred was "the claim or charge that the person charged has committed an offence against a particular law of the Commonwealth"[68]. [64]Customs Act 1901 (Cth), s 233B(1)(d). The offence was being knowingly concerned in the importation of a trafficable quantity of the prohibited drug popularly known as ecstasy.[65]Constitution, ss 51(xxxix), 71 and 77(iii). [66]Especially the Judiciary Act, ss 39(2) and 68(2).[67]Felton v Mulligan (1971) 124 CLR 367 at 393 per Windeyer J.[68]R v Murphy (1985) 158 CLR 596 at 617.The need for federal statutory authority Exercise of federal jurisdiction: The District Court is created by a statute of the Parliament of New South Wales[69]. Being the creation of legislation, its powers are not at large. They are limited to the powers conferred by the constituting Act, by any other statutes and by any powers necessarily implied either from such express grants of powers or from that Court's character as a court[70]. Such a court has no inherent powers[71].[69]District Court Act 1973 (NSW), s 8. The criminal jurisdiction conferred on the District Court exercising State jurisdiction is found in the District Court Act 1973 (NSW), s 166 and the Criminal Procedure Act 1986 (NSW), s 11.[70]Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 625-626; Stanton v Abernathy (1990) 19 NSWLR 656 at 671; R v Mosely (1992) 28 NSWLR 735; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 422-423 [108]; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 479 [134].[71]Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623-624; Grassby v The Queen (1989) 168 CLR 1 at 16; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 422-423 [108]; cf Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 490-491 [166].
Counsel for the Director correctly pointed to three relevant limitations in the text of s 79. First, the section operates only where there is already a court "exercising federal jurisdiction", "exercising" being used in the present continuous tense. Secondly, s 79 is addressed to those courts; the laws in question "shall … be binding" upon them. The section is not, for example, directed to the rights and liabilities of those engaged in non‑curial procedures under State laws. Thirdly, the compulsive effect of the laws in question is limited to those "cases to which they are applicable". To that it may be added, fourthly, the binding operation of the State laws is "except as otherwise provided by the Constitution".Conclusions The first limitation may, as is indicated above, be conceded as satisfied, but a combination of the second, third and fourth is fatal to the appellant's submissions. It was pointed out in The Commonwealth v Mewett[12] that, where a particular provision of State law is an integral part of a State legislative scheme, s 79 could not operate to pick up some but not all of it, if to do so would be to give an altered meaning to the severed part of the State legislation. The point was taken further in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd where Gleeson CJ, Gaudron and Gummow JJ said[13]:"Section 79 of the Judiciary Act renders State and Territory law binding only in cases to which they are applicable. As to State law, this may be taken to reflect what otherwise would be the operation of Ch III. In Kruger v The Commonwealth[14], Gaudron J said:'There may be statutory provisions couched in terms which make it impossible for them to be "picked up" by s 79 of the Judiciary Act. Similarly, there may be provisions which impose functions which are beyond the reach of s 79. Even so, I see no reason why s 79 cannot "pick up" limitation laws or other statutory provisions merely because they are expressed in terms applying specifically to State or Territory courts.'An example in the second category of provisions imposing functions beyond the reach of s 79 would be those insusceptible of exercise as part of the judicial power of the Commonwealth. In Mellifont v Attorney-General (Q)[15], Mason CJ, Deane, Dawson, Gaudron and McHugh JJ observed that:'[I]n the absence of a constitutional separation of powers, there has existed the possibility that the Supreme Courts of the States might be entrusted with a jurisdiction that did not involve the exercise of judicial power.'As to the first category identified by Gaudron J, the provisions of the Suitors Fund Act 1951 (NSW) considered in Commissioner of Stamp Duties (NSW) v Owens [No 2][16] may be an example of provisions expressed in terms making it impossible for them to be 'picked up' by s 79 of the Judiciary Act. The grant of a certificate under s 6 of the State Act formed a step in machinery which had been established for the indemnification out of a fund set up and administered by New South Wales of an unsuccessful litigant in respect of costs. This Court held that s 79 could not operate to convert the function imposed on State courts into a provision imposing a function on federal courts."[12](1997) 191 CLR 471 at 556.[13](2001) 204 CLR 559 at 593‑594 [72]-[74]. See also at 609‑610 [129]-[130] per McHugh J.[14](1997) 190 CLR 1 at 140.[15](1991) 173 CLR 289 at 300.[16](1953) 88 CLR 168.