Bain v Ah Kee - [1914] HCA 2

an alleged error in fact on the part of the Judge, into which any

one might fall, it is a very difficult thing, indeed, to take excep- tion to it after the jury have given their verdict. There is also another consideration. The sum in question, £93 1s. 2d., was a sum in dispute as to which the onus of proving the right lay upon the defendant, as part of his affirmative case upon his set-off. When found, it would be deductible from the damages on the plaintiff's case, but up to the moment of finding it the onus lay on the defendant to establish it. Looking carefully at the evidence, I do not see any statement there which could be regarded as evidence fit to be submitted to a jury to overcome the ordinary presumption of law that work done by one person for another at the request of that other is to be paid for. There- fore, if it came to that particular point, I should still be in favour of the plaintiff. There are the other considerations I have men- tioned, and, looking at the case on the whole, I agree that the appeal should be allowed.

GAVAN DUFFY J. I also think that the appeal should be allowed.

POWERS J. concurred.

RICH J. I agree that the construction placed upon the con- tract by Street J. is the correct construction.

It is a canon of construction that where a phrase recurs in any instrument the same meaning should be given to it unless the contrary intention appears. It is clear from the context that where the phrase "harvesting season" first occurs in the agree- ment in question, it means harvesting season on the farm the subject of the agreement. There is nothing in the agreement to show that any different meaning should be given to the expres- sion where it appears at the end of the agreement. It is signifi- cant that this meaning was given to the contract by the letter of the respondent's agent dated 31st January 1912.

With regard to the item of £93 1s. 2d. for fallowing, for which the respondent gave the appellant credit in the statement of account dated 27th May 1912, I also agree that the onus of

17 CLR 434

proving that this sum should be allowed him rested on the respondent, and he has not discharged that onus.

Appeal allowed. Order appealed from dis-

charged with costs. Respondent to pay costs of appeal. Solicitor, for the appellant, P. F. Meagher, Temora, by T. J. Purcell.

Solicitor, for the respondent, M. T. Farrell, Temora, by F.R. Cowper.

[HIGH COURT OF AUSTRALIA.] BAIN

AH KEE

ON APPEAL FROM A COURT OF PETTY SESSIONS OF Prohibited immigrant-Evidence--1 - Prior conviction for being a prohibited immigrant

-Immigration Restriction Act 1901-1912 (No. 17 of 1901-No. 38 of 1912), secs. 3, 4, 5, 7.

The fact that a person has been convicted under the Immigration Restriction Act 1901-1912 of…

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.

Continue reading Bain v Ah Kee

Details

AGLC: Bain v Ah Kee [1914] HCA 2
Case: [1914] HCA 2
Decision Date: 16 February 1914

CaseChat Overview and Summary

In this matter before the High Court of Australia, William John Bain appealed against a decision of a Police Magistrate who dismissed an information charging Ah Kee with being a prohibited immigrant found within the Commonwealth. The core of the dispute concerned whether a prior conviction for being a prohibited immigrant, coupled with the individual's subsequent presence in Australia, was sufficient to establish guilt on a new charge.

The legal issues before the High Court were whether a previous conviction under the Immigration Restriction Act 1901-1912 for being a prohibited immigrant constituted evidence that the same person was a prohibited immigrant on a subsequent occasion. The court was also required to consider whether such a prior conviction, in conjunction with the individual's presence within the Commonwealth, was sufficient to justify a new conviction and the imposition of a further term of imprisonment.

The High Court, in allowing the appeal, reasoned that a prior conviction for being a prohibited immigrant does not, in itself, serve as evidence that the individual remains a prohibited immigrant at a later date. The Court held that the grounds for being a prohibited immigrant under the Act are not necessarily of a continuing nature. Therefore, a conviction in 1909, for reasons that might have been temporary (such as failing a dictation test or having an infectious disease), was not relevant to establishing that the individual was a prohibited immigrant in November 1913. The Court emphasised that the prosecution must prove the elements of the offence at the time it is alleged to have occurred, and a past conviction does not automatically prove a current status.

The appeal was allowed, and the order of the Police Magistrate was discharged. The respondent was to pay the costs of the appeal.

Orders