Bird v Colonial Spark Plugs Pty Ltd - [1942] HCA 11

COLONIAL SPARK PLUGS PROPRIETARY

RESPONDENT. LIMITED

ON APPEAL FROM THE SUPREME COURT OF National Security-Offence-Summary prosecution-Consent-Attorney.General

Solicitor-General-Delegation of power-National Security Act 1939-1940 (No. 15 of 1939-No. 44 of 1940), sec. 10 (4)-Solicitor-General Act 1916 (No. 28 of 1916), secs. 2 (2), 3 (1).

A delegation under the Solicitor-General Act 1916 of the Attorney-General's powers under sec. 10 (4) of the National Security Act 1939-1940 empowers the Solicitor-General to authorize another person to consent to the summary McTiernan JJ. prosecution of offences against the last-mentioned Act.

APPLICATION for special leave to appeal from the Supreme Court of Victoria.

Two informations were laid by Henry Scorer Bird against Colonial Spark Plugs Pty. Ltd. charging it with contraventions of reg. 19 (3A) of the National Security (Supplementary) Regulations in that it closed its premises on part of certain days when the regula- tions required that they should not be closed.

These prosecutions were consented to in writing by Francis Felix Clausen, Deputy Crown Solicitor for the State of Victoria, in pursuance of an authority in writing given by the Solicitor-General to consent to such prosecutions, the Attorney-General having, by virtue of sec. 2 (2) of the Solicitor-General Act 1916, delegated to the Solicitor-General the powers conferred upon him by sec. 10 (4) of the National Security Act 1939-1940.

66 CLR 44

The company was convicted and fined in respect of each informa- tion.

Orders nisi to review the decisions of the magistrate were obtained by the company from the Supreme Court of Victoria. Upon the return of the orders nisi Lowe J. made them absolute, quashed the convictions and set aside the informations on the ground that the prosecutions were not authorized by sub-sec. 4 of sec. 10 of the National Security Act 1939-1940. His Honour held that it was unnecessary to consider the provisions of the Solicitor-General Act 1916, especially sec. 3 thereof.

The informant applied to the High Court for special leave to appeal against these decisions. The Court directed that notice of the motion should be served on the company SO that if special leave were granted the appeal might be disposed of without delay.

Upon the hearing of the application the Court was informed on behalf of the informant that he desired an expression of opinion on the legal question involved.

Fullagar K.C. and Tait, for the applicant. Ellis, for the respondent.

Cur. adv. vult. The following written judgments were delivered :-

RICH J. In this matter two informations were laid against the defendant company charging it with a contravention of a provision of the National Security Regulations. The company was convicted and then applied for and obtained orders nisi to review based on two grounds. Of these grounds the first forms the subject of this motion for special leave to appeal. The second ground, which is concerned with the merits, was not pressed or argued. The Court directed notice of the motion to be served on the defendant company,

SO that if the…

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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Details

Case: [1942] HCA 11
Decision Date: 5 June 1942

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal from a decision of the Supreme Court of Victoria. The applicant, Henry Scorer Bird, had laid informations against Colonial Spark Plugs Pty. Ltd. for contraventions of the National Security (Supplementary) Regulations. The company was convicted in the Court of Petty Sessions, but these convictions were subsequently quashed by the Supreme Court on the ground that the prosecutions lacked the necessary consent required by section 10(4) of the National Security Act 1939-1940.

The central legal issue before the High Court was whether the Deputy Crown Solicitor for Victoria was lawfully authorised in writing to consent to the summary prosecution of the company for offences against the National Security Act 1939-1940. This depended on the interpretation of section 10(4) of the National Security Act 1939-1940, which requires the written consent of the Attorney-General or a person authorised in writing by the Attorney-General for summary prosecutions, and the provisions of the Solicitor-General Act 1916, specifically sections 2(2) and 3(1), which allow the Attorney-General to delegate his powers and functions to the Solicitor-General.

The court reasoned that the Attorney-General had validly delegated his powers under section 10(4) of the National Security Act 1939-1940 to the Solicitor-General pursuant to section 3(1) of the Solicitor-General Act 1916. The Solicitor-General, acting under this delegation, then lawfully authorised the Deputy Crown Solicitor in writing to consent to the summary prosecutions. The judges held that the delegation to the Solicitor-General was not limited to the Attorney-General's power of delegation itself, but extended to his powers and functions under any Act, including the power to authorise another person to consent. Therefore, the Deputy Crown Solicitor's consent was valid, and the Supreme Court had erred in quashing the convictions on this ground.

Despite finding in favour of the applicant on the legal question, the High Court refused special leave to appeal. The judges considered the prosecution to be a "trumpery" matter and, while providing an opinion on the important legal question for guidance, ordered the applicant to pay the respondent's costs of the application.

Orders