McGlew v New South Wales Malting Co Ltd [1918] HCA 72; (1918) 25 CLR 416 (28 November 1918)

HIGH COURT OF AUSTRALIA

McGlew Plaintiff; and The New South Wales Malting Company Limited Defendants.

H C of A

28 November 1918

Griffith C.J., Barton, Gavan Duffy, Powers and Rich JJ.

Knox K.C. (with him Bavin), for the defendants.

Leverrier K.C. (with him Rogers), for the plaintiff.

Blacket K.C. (with him Flannery), for the Commonwealth intervening.

Knox K.C., in reply.

Nov. 28

Griffith C.J. and

Barton, Powers and Rich JJ.

The efficacy of the civil process of a Colony was limited by the territorial limits of the Colony, beyond which limits the writs of the Supreme Court were, as it used to be said, mere waste paper.

By the Constitution (sec. 51 (XXIV.)) power was given to the Commonwealth Parliament to legislate with respect to the service of State writs throughout the Commonwealth and the execution of judgments obtained under them. This power is obviously not limited to the mode of performance of the manual act of service, but extends also to the extra-territorial operation of the writ when served. Similar provision had been made by the Federal Council Act.

Such provisions, by the effect of which a defendant might be summoned to appear in the Supreme Court of a distant State, and defend at his own expense a claim possibly without any foundation, were obviously open to great abuse. It was incidental, in our opinion, to such provisions to take precautions against that danger. Pl. XXXIX. of sec. 51 would, we think, clearly cover such a case, even if it were not sufficiently implied by the nature of the power itself. (On that point see per Lord Selborne L.C. in Small v. Smith[1].)

The mode adopted by the Parliament was to allow a defendant to seek for and obtain from the plaintiff security for the costs of the action. Such proceedings are familiar in domestic Courts, and are invariably the subject of judicial determination; that is to say, they are determined by the exercise of judicial power. If, then, the Parliament could provide for the giving of security, it follows that it could also enact that the propriety of giving it should be determined judicially—in other words, by the exercise of the judicial power of the Commonwealth. The jurisdiction to exercise that power was original jurisdiction, which, in such case, would arise, within the meaning of sec. 76 (II.) of the Constitution, under a law made by the Parliament, and might therefore be conferred upon the High Court. By sec. 77, any Court of a State might be invested with a like jurisdiction. This is exactly what the Parliament did. It provided in sec. 10 for the exercise of judicial power, i.e., the judicial power of the Commonwealth, and said that it should be exercised by the Supreme Courts of the States in which the suits were pending. In our opinion, the Courts were thereby invested with Federal jurisdiction in respect of such matters.

The Act in question is not the only instance of investing State Courts with Federal jurisdiction in respect of merely incidental matters in a suit (see, e.g., Judiciary Act, secs. 17 and 45). No particular form of words is necessary to invest the Court with such jurisdiction; it is sufficient that the Court is empowered to exercise it.

The objection that the Act is an invasion of State rights is therefore without foundation.

The cause having been removed into this Court, we must pronounce the proper judgment upon the motion, which, in our opinion, is that it be dismissed with costs, including costs in both Courts.

(After reading the above judgment, Griffith C.J. stated that Gavan Duffy J. desired him to say that he did not propose to deliver any judgment in the case.)

Motion dismissed with costs in the High Court and the Supreme Court. Stay of proceedings for three weeks.

Solicitors for the plaintiff, Isbister, Hayward & Magarey, Adelaide, by Sly & Russell.

Solicitors for the defendants, Perkins, Stevenson & Co.

Solicitor for the Commonwealth, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[1] 10 App. Cas., 119, at p. 129.