51. (XXIV.) The service and execution throughout the Commonwealth of the civil and

criminal process and the judgments of the courts of the States:

§ 74. "SERVICE AND EXECUTION.”

LEGISLATION.

SERVICE AND EXECUTION OF PROCESS ACT 1901-1912. This legislation deals with the service, in other parts of the Commonwealth, of writs of summons and other process issued by the Courts of a State; the execution, in other parts of the Commonwealth, of warrants issued by the Courts, judges and magistrates of a State; and the enforcement, in other parts of the Commonwealth, of the judgments of the Courts of a State. A writ of summons may be defined as, in effect, a written command from the Crown to a defendant to enter an appearance in the action: Dicey, Conflict of Laws, page 234.

As regards the service of writs of summons, the Act follows the Australian Civil Process Act 1886, passed by the Federal Council of Australasia, which in turn is based to a large extent upon English law and practice as to service out of the jurisdiction (Cf. Common Law Procedure Act 1852, c. 76, sec. 18; Judicature Rules, O. XI, r. 1).

A writ of summons issued out of any State Court of Record (defined to include any Court which is required to keep a record of its proceedings) may, if it bears the prescribed endorsement, and a statement of the time limited by the Act for appearance, be served on the defendant in any other State or part of the Commonwealth.

On the return of the summons it must be made to appear to the Court or Judge that the writ was personally served on the defendant or in the case of a corporation served on its principal officer or manager or secretary within the State or part in which service is effected; or that reasonable efforts were made to effect personal service thereof on the defendant, and that it came to his knowledge or in the case of a corporation, that it came to the knowledge of such officer as aforesaid (in which case it shall be deemed to have been served on the defendant.)

If the defendant appear the originating Court may, if it thinks fit, on the application of the plaintiff, order the defendant to give security for costs. Where no appearance is entered or made by

the defendant, the originating Court may, if the suit is in respect of a subject-matter-land or property-within the State, or a contract made or broken or an act done within the State, or if the defendant was, when his liability arose, within the originating State, or (in a matrimonial cause) is domiciled in the originating State, the Court may give the plaintiff liberty to proceed; and the judgment will have the same force and effect as if the writ had been served in the said State.

Other process in a suit may, subject to the Rules of the Supreme Court of the State in which the process is issued, be effected in the same way, and will have the same force and effect, as if served in that State. A summons for an offence, issued on a sworn information, or (by leave of the issuing Court or magistrate) a subpoena to give evidence in any civil or criminal proceeding, may be similarly served in other parts of the Commonwealth, and proceedings may be taken to enforce attendance.

The provision for the execution of warrants is based on the old system, embodied in the English Justices Acts, and later in the Fugitive Offenders Act, of backing warrants. A warrant, issued in one State for the apprehension of a person who is charged with an offence or has disobeyed an order of a Court, may be indorsed by a justice in the State where the defendant is to be arrested, and may be executed accordingly. Provision is also made for arrest on a provisional warrant, pending the arrival and indorsement of the original warrant.

The provision for the enforcement of judgments is based on the Australasian Judgments Act 1886, passed by the Federal Council of Australasia. A certificate of the judgment may be registered in the appropriate Court of the State in which it is to be enforced and proceedings may then be taken on the certificate as if it were a judgment of the Court.

Section 10 of the Act, providing that a defendant served with a writ may apply to the originating Court for an order requiring the complainant to give security for cost, is valid. McGlew v. N.S.W. Malting Co. Ltd. (1918), 25 C.L.R., p. 416.

Extra-territorial Service.

Before the passing of this Act the question of the competency of the jurisdiction of the Colonial and State Courts to deal with persons served with process outside their territorial limits was governed partly by local legislation and partly by the rules of

private international law. In Australia, before Federation, a Court could be empowered by the laws of its own Colony, such as the Common Law Procedure Act, to entertain an action against a defendant out of the jurisdiction in a neighbouring Colony and under certain conditions to render judgment against him.

A judgment entered under such an Act within the originating Colony was by the decision given in the case of Ashbury v. Ellis, (1893) App. Cas., 339, held to be valid and it could be enforced against the person or property of the defendant within that Colony. But it was not necessarily valid outside the limits of that Colony. In other words, the Courts of other Colonies were not bound to recognize its validity, and to allow their process to be used for the purpose of enforcing it against the property or person of the defendant within their jurisdiction. Whether they would do so or not, depended upon the rules of private international law, as these have been laid down in the English Courts; and not upon the law of the Colony in which the judgment was rendered.

Turning now to the Federal Service and Execution Act it must be noted that there is a great difference between the legislative power of the Commonwealth Parliament which passed this Act and the Colonial Parliaments which passed the Common Law Procedure Acts. Under the Federal Act it is provided (1) That a writ of sum mons issued out of any Court of Record in one State may be served on a defendant in another State (section 4); (2) That if the defendant does not appear to such a writ, the plaintiff may, under certain conditions, obtain leave to proceed with the action up to judgment (section 11); (3) That a judgment so obtained shall have the same force and effect as if the writ had been served in the State in which it was issued (section 12). The Federal Parliament has power to authorize State Courts to issue such commands, to persons in other States, and it has done so. It could hardly be contended that if the defendant choose to disobey the command, the Court out of which it is issued has no jurisdiction over him. A judgment obtained in default of appearance under the provisions of Colonial laws authorizing service out of the jurisdiction, was not necessarily regarded as valid by the Courts of other Colonies. But under the Federal law the position is entirely different. The Federal Parliament has power to pass laws, with respect to the particular subjects confided to it, which bind everyone in the Commonwealth. A defendant served with a writ under a law of the Commonwealth is bound to obey the command in the writ. The Federal law must

mean this if it means anything. If he is bound by a valid law to obey the command in the writ, he is subject to the jurisdiction of the Court which issues it. If this is so, that Court, on all the established principles of private international law, can render against him a judgment which is not only valid in the State of issue, but must be recognized as such in every Court of the Commonwealth. The Service and Execution of Process Act expressly provides for this, for by section 12 it is enacted that "when a judgment is given or made against a defendant who has been served with a writ of summons under this Act, such judgment shall have the same force and effect as if the writ has been served on the defendant in the State in which the writ was issued." If a writ is served within a State, the Courts of that State clearly have a jurisdiction that is recognized by foreign Courts: Commonwealth Law Review, vol. II., p. 64.

Attention is drawn to these considerations in consequence of a judgment of Mr. Justice COHEN given in the Supreme Court of New South Wales in the case of Blunt v. Collingwood Tin Mine Co., 20 W.N., 158. His Honor there suggested that section 4 of the Federal Act was intended, not to extend the jurisdiction of the State Court, but to authorize the service in another State of a writ of summons in cases where the particular State Court out of which the writ issues, has jurisdiction, apart from the provisions of the Service and Execution of Process Act. In Pringle v. Musgrove, 20 W.N., 280, Mr. Justice PRING stated that he was not prepared to follow the decision given in Blunt's Case. The restricted view suggested by Mr. Justice COHEN has not been adopted by any other Court.

51. (xxv.) The recognitions throughout the Commonwealth of the laws, the public Acts

and records, and the judicial proceed. ings of the States:

$75. "RECOGNITION."

LEGISLATION.

STATE LAWS AND RECORDS RECOGNITION ACT 1901.

All Courts within the Commonwealth are required to take judicial notice of Acts of Parliament of any State, of the seal of any State, and of the signatures and seals of various State officials

and the seals of State Courts. It also provides for the proof, in all Courts within the Commonwealth, of various public documents and records of the States, and of judicial proceedings of State Courts. It enjoins all Courts to take judicial cognizance of the signatures of Ministers of State of the Commonwealth and officials named in the Act and other officials named in proclamations issued by the Governor-General such as State Commandants, and the Common

wealth Statistician.

51. (xxvI.) The people of any race76 other than the aboriginal race in any State, for whom

it is deemed necessary to make special laws:

§ 76. "THE PEOPLE OF ANY RACE."

LEGISLATION.

There has been no legislation by the Federal Parliament which derives its main support from this paragraph, though there are a few enactments to which it might be called in aid.

By the Naturalization Act 1903, aboriginal natives of Asia, Africa, or the islands of the Pacific (excepting New Zealand) are excluded from the privilege of naturalization; and by the Commonwealth Franchise Act 1902 the same persons, and also aboriginal natives of Australia, are excluded from the right to vote at elections for the Federal Parliament.

By the Invalid and Old-age Pensions Act 1908-1912, section 3, Asiatics (unless born in Australia) and aboriginal natives of Australia, Africa, the islands of the Pacific, or New Zealand, are disqualified for pensions.

By the Post and Telegraph Act 1901, section 16, contracts made on behalf of the Commonwealth for the carriage of mails must contain a condition that only white labour shall be employed; and by the Sugar Bounty Acts (now repealed) and other Acts granting bounties, the payment of bounty is made conditional on only white labour being employed.

For the Pacific Island Labourers Act 1901-1906, see notes to section 51 (xxx.), infra.