Bishop v Chung Bros

[1907] HCA 23

4 CLR 1262

CHUNG BROTHERS

DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA. Factories and Shops Act 1905 Vict.) ) No. 1975), secs. 42, 162*-Factorie and Shops

Act 1905 (No. 2) (Vict.) (No. 2008), sec. 9t-Prosecution against firm-Un of firm name in proceedings-Conviction. MELBOURNE,

A firm, of which A. and B. were the members, being the occupiers of a June 5, 6, 10,

factory, were informed against and convicted under the firm name of the offence under sec. 42 of the Factories and Shops Act 1905 of permitting a person to work in their factory after half-past two on a Saturday afternoon.

Held (Higgins J. dissenting) that, notwithstanding sec. 162 (c) and (d) of that Act, and sec. 9 of the Factories and Shops Act 1905 (No. 2), the convie- tion was wrong, and that it should have been of the members of the firm in

An order to review the conviction was made absolute by the Supreme Held, per Griffith C.J., Barton and Isaacs JJ., that the case should have been remitted to the justices to convict the persons proved to be members of

Judgment of Chomley J.: Bishop v. Chung Bros., (1907) V.L.R., 61; 28 A.L.T., 106, reversed. *Sec. 162. " The following pro-

+Sec. 9. "In any prosecution for a contravention of section forty-two of to proceedings before Courts of Petty

the Principal Act the occupier of a factory or work-room shall be deemed (c) It shall be sufficient to state the

to have permitted a person to work in name of the ostensible occupier of the

contravention of the said section if any factory work-room bakehouse or shop

person whomsoever is proved to have or the title of the firm or company by

been working in the factory or work- which the occupier of the factory work-

room of such occupier during the time room bakehouse or shop is usually

during which work is prohibited by

4 CLR 1263

APPEAL from the Supreme Court of Victoria.

At the Court of Petty Sessions at Melbourne, on 16th August 1906, an information was heard wherein Albert A. Bishop was named as informant and "Chung Brothers of George's Lane, in the City of Melbourne, in the State of Victoria, manufacturers" were named as defendants. The charge stated was "that the said Chung Brothers at George's Lane in the City of Melbourne in the said bailiwick on the twenty-eighth day of July 1906, being the occupier of a certain factory or work-room within the meaning of the Factories and Shops Acts, did then and there permit a person, whose name is to this informant unknown, to work on the day aforesaid, the same being a Saturday, after two o'clock in the afternoon to wit, between the hours of two o'clock and three o'clock, in such factory or work-room, in partly manufacturing an article of furniture contrary to the form of the Statute in that case made and provided." The summons attached to the information was addressed to "Chung Brothers of George's Lane, in the City of Melbourne, in the State of Victoria, manufacturers."

At the hearing of the information, Chung Brothers were repre- sented by their solicitor, who, before any evidence was given, objected that a firm could not be prosecuted under the Factories and Shops Acts, but only the individual members thereof, but the magistrates overruled the objection. The evidence given on behalf of the prosecution included a notice under the Factories and Shops Act 1905 to the Chief Inspector of Factories signed Chung Brothers" stating that they desired to occupy certain premises in George's Lane, Melbourne, as a factory and work- room, and that the "name of occupier or firm in full" was

Chung Foon and Chung Tin trading as "Chung Bros."

The magistrates convicted Chung Brothers and in the register of convictions the conviction was stated to be of "Chung Brothers."

An order nisi to review this conviction was obtained by Chung Brothers" on the ground that the defendant firm as such could not be prosecuted and convicted for the offence alleged," and was made absolute by Chomley J.: Bishop v. Chung Bros.

4 CLR 1264

From this decision Bishop, by special leave, appealed to the High Court.

Bryant (with him Arthur), for the appellant. The effect of sec. 9 of the Factories and Shops Act 1905 (No. 2) is that the occupier of a factory may be guilty of an offence under sec. 42 of the Factories and Shops Act 1905, and, under sec. 162 (c) of the latter Act, if a firm is the occupier of a factory, the members of the firm may be prosecuted in their firm name. The prosecution being in that form, the conviction of the members of the firm is properly in the firm name.

Even if the conviction should have been of the members of the firm in their own names, the Judge should have amended the conviction.

Ah Ket and Lowe, for the respondent firm. A firm is juristic person, and cannot be guilty of an offence except by the express provisions of a Statute. Sec. 42 of the Factories and Shops Act 1905 does not enable a firm to be prosecuted for any offence. Sec. 162 of that Act merely means that, where it is necessary to aver and prove that a person or firm is the occupier of a factory, the mere statement that a particular person or firm is the occupier of a factory shall be sufficient proof of that fact until the con- trary is shown. It only applies where occupation of a factory is a necessary ingredient of the offence, and not to a case in which the offence is one by an owner, and occupation is made evidence of ownership. Occupation of a factory is not a necessary ingredient of an offence under sec. 42 of the Factories and Shops Act 1905, but there are offences under the Factories and Shops Acts of which such occupation is a necessary ingredient. See Factories and Shops Act 1905, secs. 18, 20, 21, 22, 26, 27, 63, 74. The meaning of sec. 9 of the Factories and Shops Act 1905 (No. 2) is that, if a person is being prosecuted for an offence under sec. 42 of the Factories and Shops Act 1905, and in the course of that prosecution it appears that that person is the occupier of the factory, the onus of proof that he did not permit a person to work in his factory is cast upon him. If a firm could be prosecuted for an offence under sec. 42 of the Factories and Shops Act 1905, a member of the firm could not avail himself of the protection

4 CLR 1265

afforded by sec. 160 2. In England under 41 &42 Vict c. 16, a firm might be charged with an offence; not by virtue of sec. 91, which is the prototype of sec. 162 of the Factories and Shops Act 1905, but by virtue of the provision of sec. 96 of the Act that the word "person" includes a body of persons corporate or unincor- porate. At common law there is no such thing as a joint offence: Morgan v. Brown 1; R. v. Littlechild (2); Stone's Justices Manual 1906, p. 825.

[HIGGINS J. referred to R. v. Cridland 3.] Unless the conviction is of each individual defendant the pro- visions of the Justices Act 1890 for imprisonment in default of payment of the penalty cannot be enforced.

[Counsel also referred to Ross v. Heil 4; Ruegg and Mossop's Law of Factories and Workshops, pp. 20, 337: Hardcastle on Statutory Law, 3rd ed., p. 307; Bowstead on Agency, 3rd ed., p. 442; Lindley on Partnership, 7th ed., p. 297.

Bryant, in reply, referred to the Partnership Act 1891, sec. 14.

Our. adv. vult.

GRIFFITH C.J. The question for decision in this case is whether a firm can as such be convicted of an offence under the Fac- tories and Shops Act 1905. That Act contains elaborate pro- visions for regulating factories and shops. Sec. 11 provides that: - Every person going into occupation of any factory or work- room shall within fourteen days of such going into occupation" give notice in the prescribed form to the proper official, and it further prescribes that the notice is to contain, amongst other things, particulars of the name of such person, and of the name of the firm under which the business is carried on. Then the Act imposes various duties upon occupiers, to two or three of which I will refer merely by way of illustration. Sec. 27 pro- vides that the Chief Inspector may give to the occupier of a factory which is dilapidated a certain notice, and, if the occupier

2L.R. 6 Q.B., 293 40 L.J.M.C., 1A. &E., 515. 37 El. &Bl., 853. 427 V.L.R., 157 ; 23 A.L.T., 35. 137. 4 CLR 1266

fails to comply with the notice, the inspector may summon him

before a Court of Petty Sessions to show cause why the registra- tion of the factory should not be cancelled. Sec. 40 prescribes conditions to be observed in employing children or women in a factory for more than forty-eight hours in a week, and requires the occupier of a factory, amongst other things, to keep a record of every day on which he avails himself of the provisions of sub- sec. (2) of the section, and provides a penalty for the breach of this provision. Sec. 64 provides that when an accident happens in a factory the occupier must send notice to the inspector of the district, otherwise the occupier will be liable to a penalty. In all these cases-they are only illustrations-it is of the essence of the offence that the defendant should be an occupier, and an offence cannot be committed except by an occupier. On a charge, therefore, of an offence under any of these sections, it is neces- sary to allege in the information that the defendant was an occupier. To give another illustration, sec. 74 provides that every occupier of a factory, and the agents and servants of such occupier, shall give certain information to an inspector when required to do SO, and that every person who contravenes the provisions of the section shall be guilty of an offence. A charge for an offence under that section must allege that the defendant is either an occupier, or the agent or servant of an occupier, of a factory, and it is necessary to name the occupier in the infor- mation. So that it is clear that under this Act there are cases in which it is necessary, and other cases in which it is not necessary to allege in the charge that the person charged is an occupier of a factory. In many other sections of the Act-a majority of them, indeed-the usual word is "person." In those cases it is immaterial whether the defendant is an occupier or not, although sometimes the fact that he is an occupier is made evidence of a further fact to be proved.

The present charge is brought under sec. 42, which provides that "In any factory or work-room where any Chinese person is at any time employed or authorize or permit any person whomsoever to work" except between certain hours, and it goes on to provide that, if any person offends against any of the provisions of the section, he

4 CLR 1267

shall be liable to a certain penalty. It is clear that under that section an offence may be committed by an occupier or by any one else, and, in case of a prosecution for that offence, it is quite immaterial to allege that the defendant was an occupier.

Sec. 162 deals with procedure and procedure only-including in that term evidence. It provides that "The following pro- visions shall have effect with reference to proceedings before Courts of Petty Sessions for offences under this Act - Provision (a) is as to the time within which an information must be laid. Provision (b) is a pleading provision :- It shall be sufficient to allege that a factory or work-room bakehouse or shop is a factory or work-room bakehouse or shop within the meaning of this Act without more." That is, without describing what sort of a factory &. it is. Provision (c), which is the provision which is said to be material to the present case, :- It shall be sufficient to state the name of the ostensible occupier of the factory work-room bakehouse or shop or the title of the firm or company by which the occupier of the factory work-room bakehouse or shop is usually known." It is said that, under that provision, a firm may be summoned qua firm, and that the names of the defendants need not be mentioned. There is no doubt that Parliament can authorize a firm to be sued or prosecuted and convicted and punished under the criminal law. The question in the present case is whether Parliament has done SO. The general rule is that the criminal law affects natural persons only. Considering that the criminal law is ultimately enforceable by imprisonment, it is obvious that that must be SO. In the case of corporations, of course, execution can only go against the goods of the corpora- tion, although under the provisions of the Justices Act 1890 any person who takes part in the committing of the offence is also liable personally. In every prosecution there are involved certain elements. First, there must be an accused person; the common law makes that necessary: Secondly, there must be a statement of the offence which the accused person is alleged to have com- mitted Thirdly, there must be process to compel his appearance Fourthly, there must be a trial on evidence, followed by judg- ment and execution. All these matters are subject to the control of Parliament. With which of them does sec. 162 (c) deal ? The

4 CLR 1268

words are :-" It shall be sufficient to state

by which the occupier of the factory is usually known." Words of that sort can only apply to cases where it is necessary to state that he is the occupier. We are not to suppose that Parliament has made this provision simply that the prosecutor may gratify his fancy by making an irrelevant allegation, and SO acquire a right to proceed against several persons under a firm name. This provision deals only with the state- ment of the charge, and has nothing to do with the process for bringing the offender before the Court, or with the trial or judg. ment, or with the mode of enforcing the judgment. Sec. 162 (d) is:- The onus of proof that the person firm or company named in a summons is not the occupier of the factory work-room bakehouse or shop shall be on the defendant." That also can only deal with cases where a person, firm or company is properly named in the summons as an occupier of a factory &. If the name is used merely to gratify the fancy of the prosecutor, the law will not assist him. I take leave to doubt whether sec. 162 (d) applies at all to cases in which the occupation by the defendant is a necessary ingredient of the offence. If it were intended to apply to these cases one would have expected the provision to have been that the onus of proof that the person &. named as defendant in the summons is not the occupier should be on the defendant. It is not necessary, however, to determine that point. The rest of the sub-sections deal only with matters of evidence when the offender is properly before the Court.

Then it is said that sec. 9 of the Factories and Shops Act 1905 (No. 2) makes a difference. That section only deals with rules of evidence, and provides that, when it is necessary to prove that a certain offence has been permitted by the occupier of a factory, it shall be sufficient to prove that a particular person is the occupier of the factory without calling evidence of permission on his part. That has nothing to do with pleading, and the section applies whether the defendant is or is not the occupier.

With reference to the particular facts of this case, the charge is that Chung Brothers, being the occupiers of a certain factory, did permit a person to work on a Saturday after 2 o'clock in the afternoon in such factory in manufacturing an article of furniture

4 CLR 1269

contrary to the form of the Statute in that case made and pro- vided. I have already pointed out that the allegation that the defendants were the occupiers of the factory is entirely imma- terial, and adds nothing to the effect of the information. I doubt whether it was intended by sec. 162 (c) of the Factories and Shops Act 1905 to refer at all to the manner of describing the defendant in the proceedings. It seems, however, to be accepted in England, as would appear from Ruegg and Mossop's Law of Factories and Workshops, that defendants may be described by their firm name in the summons. There may be some practical conveniences in adopting that course, but there may be some practical difficulties. If the defendants appear, the case can go on, but if they do not appear, there may be difficulty in making use of the provisions of the Justices Act 1890 for proceeding in default of appearance. Again, a question of jurisdiction may arise. It is impossible to suppose that it was intended by such a provision as that in sec. 162 (c) of the Factories and Shops Act 1905 to give the justices jurisdiction over members of a firm not resident in Victoria. If Parliament intended that result, the attempt is ineffectual, because they have no power to do SO. Other difficulties might arise from following this procedure, and I do not see that any particular advantage would follow from it, because sooner or later the individuals comprising the firm must be named and their identity established. It is clear that justices have no jurisdiction except over persons present in Victoria when the offence is committed. I think, however, that under sec. 187 of the Justices Act 1890 the erroneous description of the defendants is amendable, and is a matter that ought to be amended. That section provides that :-" " On the hearing of any information or other proceedings before any Court of Petty Sessions or justice no objection shall be taken or allowed to any information warrant or summons for any defect therein in sub- stance or in form, or for any variance between it and the evidence adduced on the part of the prosecution before the Court or justices who take the examinations of the witnesses in that behalf as heretofore or hereinafter mentioned." I think that, when persons are charged by a firm name and they appear, the justices ought to proceed against the persons who appear, and

4 CLR 1270

inquire whether the charge is proved against them. It must be

taken in the present case, that the persons who appealed to the Supreme Court against the conviction are the persons who appeared in answer to the summons. There is, I think, an irregularity in the appeal to the Supreme Court in its not having been brought in the names of the particular appellants. I do not think that that irregularity can put them in a better position than if they had done what they ought to have done. But the Statute goes no further-even if it goes SO far-than to allow the name of the firm to be used in the summons. When the matter gets beyond that point, the conviction must be of the individual persons who have been proved to be guilty of the offence, and judgment must be given and execution must be awarded against those individual persons. It is necessary, therefore, before the conviction is made, to ascertain the identity of the members of the firm, and that the Court has jurisdiction to deal with them. This being a step that must be taken sooner or later, I think it may as well be done first as last. In this case, however, the justices convicted the defendants in the firm name. Chomley J. was of opinion that that was wrong, and he was inclined to think that the information also was wrong. I concur with him on both points. But what follows ? Chomley J. thought that the conviction should be set aside. But under the Justices Act 1890 the Supreme Court has jurisdiction, amongst other things, to remit a case to the justices for hearing with a direction of law. In my opinion, where defendants are properly convicted upon the evidence, and there is an error of form in drawing up the con- viction, the proper course is to send the case back to the justices to correct the error. We are not in a position to impose a fine upon the respondents, for that must be done by the justices them- selves. In my opinion, therefore, the order that Chomley J. should have made was to remit a case to the justices to convict such persons as are shown by the evidence to be members of the firm. The justices must also, of course, ascertain that the persons accused are within their jurisdiction. I think that, under the circumstances, there should be no costs of the proceedings in the Supreme Court, and that the appellant should pay the costs of this appeal.

4 CLR 1271

BARTON J. read the following judgment:-This was an appeal from an order of the Supreme Court of Victoria, made by Chomley J., making absolute an order nisi to review a conviction under sec. 42 of the Factories and Shops Act 1905 (No. 1975).

The information of Albert Bishop, Inspector of Factories and Shops, now appellant, set out that Chung Brothers being the occupier of a certain factory or work-room" did on the 28th of July 1906 permit a person whose name was to the informant unknown to work on that day, being a Saturday, after two o'clock in the afternoon, in the factory or work-room in partly manufac- turing an article of furniture.

Upon this information a summons to 'Chung Brothers" was founded, and Chung Brothers" were adjudged guilty of the offence charged, and fined 40s. and costs.

This conviction and order are the subject of the order to review and of this appeal.

Sec. 42 of the Act of 1905, under which the information was admittedly laid, prohibits any person in any factory or work- room where any Chinese person is at any time employed, and in any factory or work-room where any person whosoever is em- ployed in preparing or manufacturing or partly preparing or manufacturing any article of furniture, from working for himself or for hire or reward, either directly or indirectly, or from employing or authorizing or permitting any person whomsoever to work on any day between certain hours, and renders the offender liable "for each and every day in which he offends

on conviction to a penalty for the first offence of not more than Ten pounds, and for a second or subsequent offence of not less than Five pounds or more than Twenty-five pounds and the registration of a factory or work-room the occupier of which is convicted under this section of a third offence shall be forth- with cancelled by the Chief Inspector."

It will be observed that the occupancy of the premises is not under this section an ingredient of the offence. Any person who does the forbidden work or any person who authorizes, employs, or permits any other person to do it, commits the offence, and that whether he is the occupier of the premises or not. Hence the averment in the information that " Chung Brothers" were at

4 CLR 1272

A. the time of the act charged " the occupier" is mere surplusage

and proof of the commission of the offence would be complete without any proof of such occupancy.

As it was wholly unnecessary that the averment of occupancy should be made or proved, it is out of the question that the prosecution should reap any advantage from alleging it.

Now let us turn to sec. 162, sub-sec. (c), which is relied on to support the legality of the proceedings-at any rate of a con- viction following that information. The words of this enactment cannot make it necessary to overload an information with aver- ments merely for the purpose of making one of them "sufficient"

SO as to aid in realising some ulterior purpose, nor can such an intention be imputed to the legislature. The obvious construc- tion seems to me to be the true one, namely, that as sub-sec. (c) of sec. 162 can only relate to what is material to be stated, it means that the statement there mentioned shall be sufficient if it be comes necessary to make such a statement, i.e., such an averment. So, as to sub-sec. (d). Where it is in question whether a "per- son firm or company" named in a summons is the occupier of the factory itself, it is enacted that the defendant must undertake the burden of proof that such "person &." is not the occupier. By "in question" I mean that, unless it is a feature in the case material to be proved on one side or the other, the enactment cannot apply to it. It would be superfluous to point these matters out but for the fact that the contention for the prosecu- tion seems to involve their denial.

But then it is said that the enactment will be meaningless or useless unless it can be applied in the manner urged. Turning to the rest of the Act of 1905, it is apparent that there are many provisions in which occupancy seems to be a material factor in the offence. Such are sec. 20, sub-sec. (5), sec. 21, sub-secs. (1), (2) and (3), secs. 23, 26, 27, 28, 64, 74, 142, 146 and 155, and no doubt there are others. In most if not all of these cases it would appear that sec. 162, sub-secs. (c) and (d), can be applied, and that power finds abundant scope in relation to them. I see no reason why we should extend its scope in the manner contended for.

In my opinion occupancy was not an ingredient of the offence

4 CLR 1273

in this case, and its averment was not a necessary part of the information, SO as to justify "the statement of the name of the occupier" of the factory or work-room, or "the title of the firm or company by which the occupier" was usually known. In the absence of such necessity the information should have described the defendant or defendants by name.

But then there was an appearance in defence to the informa- tion and summons. That appears to me to cure the defect in the information, which moreover I think was amendable Justices Act 1890, sec. 187. But does the appearance or defence justify a conviction of " Chung Brothers," and the imposition on that entity of a fine of 40s. and costs upon a conviction If the reasons already urged would have been sufficient as objections against the information, as I think they would have been if not virtually abandoned by the continuance of the defence under the name of Chung Brothers," then a conviction in these terms could clearly not be good. But if (1) the defect of the information has been cured, or if (2) the information is good, then whatever departure from the well understood principles of the common law might be sanctioned by sec. 162 (c) as to the information, I am convinced that it cannot extend to protect this conviction. Nothing in the whole of sec. 162 goes beyond questions of procedure- nowhere is it said, or are we driven to infer, that there is a sub- stantial alteration of the principles of the common law as respects the conviction of persons charged with offences. The section does not on its face go beyond the facilitation of pleading and proof. At common law a conviction against such an one and company cannot be supported: R. v. Harrison (1), and this is much such a case unless it can be found that the Statute gives a new quality to such a conviction, and this I cannot find. It is an ordinary rule of statutory construction that a Statute is not read to affect the common law to a greater extent than its expressions clearly indicate, for there is no presumption that a Statute is intended to override the common law. See cases cited in Hardcastle on Statu- tory Law, 3rd ed., pp. 306 et seq. also Clancy v. Butchers' Shop Employés Union (2), where in dealing with an industrial arbitra-

(2) 1 C.L.R., 181, at p. 201.

4 CLR 1274

tion the Chief Justice of this Court said :- In construing the it should be borne in mind that it is an Act in restriction of the common law rights of the subject, and, though that is no reason why the fullest effect should not be given to its provisions, it is a reason why the meaning should not be strained as against the liberty of the subject." That is a principle which applies here as strongly as it did there. Sec. 9 of Act No. 2008 (Factories an Shops Act 1905) (No. 2) ) was strongly pressed upon us, but I agree with what the Chief Justice has said on that section. I do not think it carries the matter any further, or justifies a convic- tion against a firm name even where the firm name, as stated in the information, has been justified by sec. 162 (c). That is to say, still the conviction, to be good, must be against some person or persons individually. In the present case it is impossible to say who is or are to pay the fine and costs, and in the event of non- payment, say by "Chung Brothers" upon distress, who is to be committed to prison (Justices Act 1890, sec. 99) ? Is it to be Chung Brothers a mere name ? That of course is out of the question.

It is clear, however, to me that we ought not to dismiss this appeal. We can and ought to send the case back to the Court of Petty Sessions for the purpose of a proper conviction being made against the individuals whom that Court finds to be guilty. As the learned Judge has made the order to review absolute, it is impos- sible to arrive at the result I think right without allowing the appeal and discharging that order. The case should then go back to the Petty Sessions with an instruction to convict such person or persons within the State jurisdiction as the Court holds liable upon the evidence.

ISAACS J. read the following judgment:-The only question raised in this appeal is whether the defendants could lawfully be informed against and convicted in their firm name.

This assumes every fact against them. They assert the con- viction must be upset on the sole ground that they were sued and convicted under the name of Chung Brothers," although in fact they were a firm and traded under that name, although they committed the offence charged, although the evidence was suffi-

4 CLR 1275

cient to prove it, and the Court believed that evidence and inflicted a punishment which the law justified. A more technical objec- tion cannot well be imagined. No injustice to the defendants could be suggested by the learned counsel representing them.

Still the objection, technical as it is, must prevail, unless by means of some statutory provision the case can be rescued from the rigid common law rule laid down in R. v. Harrison 1 that all proceedings against an accused person must be taken in his individual name.

So far as the information is concerned, sec. 162 (c) of Act No. 1975 does in my opinion suffice of itself to answer the defendants' objection. If the occupiers of a factory are satisfied to trade under a firm name, to register their factory under a firm name, and to place that name on their door for factory law purposes, the legis- lature has considered it sufficient to describe them by that name in an information for breach of the Factories Act for the purpose of bringing them before the Court to answer the charge. This intention may be gathered from an examination of various sec- tions of the Act when read in relation to each other. The regis- tration of factories is provided for. Sec. 11 requires all persons occupying a factory to serve a formal notice on the inspector containing particulars of the names of the persons occupying the factory, and a description of the factory, and the name of the firm under which the business of the factory is carried on.

The occupier of a factory is entitled, on forwarding the required particulars and on payment of a fee, to have the factory registered. In the register all the particulars referred to are to be entered.

The Statute therefore prescribes for the recognition for the purposes of the Act of the firm name of the persons occupying the factory.

Sec. 20 requires the firm name to be placed legibly near the outside of the factory.

The term "occupier" is used in many sections to denote those persons, and where SO used is merely a compendious expression denoting the person or persons in occupation of a factory.

Sec. 42, under which the prosecution took place, expressly con- templates in sub-sec. (2) that the occupiers of a factory should be

18 T.R., 508. 4 CLR 1276

OF A. proceeded against as such for contravention of the provisions of

the section, because it provides for a cancellation of the factory registration on the third conviction of the "occupier," and there fore, if sub-sec. (c) of sec. 162 operates at all to permit defendants to be summoned by a firm name, it ought to apply to this case.

That sub-section is a remedial provision, and intended to sim- plify procedure, and ought therefore, in my opinion, to be given its full operation. But, unless it is extended to naming the defendants in cases where persons are in occupation of factories, it may fall far short of the simplification of procedure contemplated by the legislature. I think the information was in proper form. Nor do I see any legal difficulty in working out the subsequent proceedings.

If, however, there be any want of formality in the description of the defendants, they appeared, and the justices by sec. 187 of the Justices Act 1890 could and should have amended so far as to have cured the defect.

Whittle v. Frankland 1 was a case somewhat resembling this in respect of this particular objection. The appellant was convicted by justices in petty sessions of an offence against the Master and Servants Act and sentenced to a month's imprisonment with hard labour. By the Act under which the prosecution took place the complaint had to be made on oath by the person or persons, or any of them, with whom such servant &., contracted, or by his or their agent, &. The information was laid by the respondent as agent to "Thomas Bolland and his partners." It appeared on the hearing that the agreement was made between the defendant and Thomas Bolland on behalf of himself and his partners, constituting The Rotherham, Masborough, and Holmes Coal Company (Limited)." The principal, properly described, was therefore a corporation, a distinct entity: see per Crompton J. 2. It was held, however, that the Statute (11 &12 Vict., c. 43, S. 1), corresponding sub- stantially with sec. 187 of the Justices Act 1890, got over the objection on the ground of variance. So far for the information.

But, once the matter is launched before the Court, the identity of the partnership members is an essential fact for the Court to

12 B. &S., 49 31 L.J.M.C., 81. 231 L.J.M.C., 81 at p. 84. 4 CLR 1277

determine. Whatever be the result of the proceedings-whether conviction or acquittal-it is equally necessary to prevent the same persons being harassed again, to prevent a guilty person escaping or an innocent person suffering, that the Court should then and there ascertain who the persons really are that compose the firm.

In this case, as it happens, there is not really any doubt, upon the evidence as it stands, that Chung Foon and Chung Tin were members of the firm. It is possible that other persons were also members, and if further evidence had been given it might have been established who they were, or even that Chung Foon and Chung Tin had ceased to be members of the firm at the time the offence took place.

But, taking the case as it now appears without more, it would be altogether in opposition to the evidence to find that Chung Foon and Chung Tin were not occupiers.

The Court of Petty Sessions convicted " Chung Brothers" as the memorandum of the order shows, because in the column headed Accused or Defendant" the name is stated as " Chung Brothers," and in the column headed "Decision, Memo. of Con- viction or Order " the following appears Fined 40/-; Costs, £2 - 12 - 0."

The Court therefore convicted the defendants as Chung Brothers" and did not actually find who the individuals were. In my opinion that was wrong. If the conviction is ever to be enforced, it must at some stage be determined who the individuals were that committed the offence, and I cannot imagine anyone other than the Court, who tried the charge and had the parties before it, making that determination. Consequently the convic- tion is technically wrong-on the ground that the magistrates have not gone on to find specifically the identity, and state in the memorandum of conviction, the names of Chung Foon and Chung Tin. The case of Reg. v. Littlechild (1) may be referred to. Littlechild and Heslop were charged on a joint information for the offence of using a gun to kill game. They were separately convicted on separate convictions. The defendant appealed and argued that the information was wrong because it was joint,

(I) L.R. 6 Q.B., 293.

4 CLR 1278

but that if it was right the conviction was wrong because that was separate. The Court, however, held against both objections, and Mellor J. said it would have been wrong to have convicted

CHUNG BROS.

them jointly. Here the defendants were convicted jointly, which in my opinion was wrong. But it does not follow that the con- viction must be entirely set aside and treated as a nullity. The defect, which has no merit in it, SO far as the defendants are concerned, can and ought to be cured. Sec. 146 of the Justices Act 1890 enables the Supreme Court to remit the case to the Court of Petty Sessions with a direction in law, and this I think Chomley J. ought to have done instead of absolutely quashing the conviction.

The order nisi, which His Honor made absolute, was actually obtained by defendants in the name of Chung Brothers." It is rather grotesque that defendants' argument to quash their con- viction, on the ground that they had to be described in their individual names and convicted separately and not jointly as Chung Brothers," should succeed on an order nisi they obtained and had made absolute also in the joint name of "Chung Brothers" and not in their individual names, there being no more justification for styling them by their firm name in the one case than the other. It appears to me that, if their argument was good as to the conviction, it should have proved immediately fatal to their own order nisi.

Laying aside that technical point, however, this Court can now and ought to give the judgment which the Supreme Court should have made, and I therefore agree to the order proposed by the learned Chief Justice.

HIGGINS J. read the following judgment:- concur with the other members of the Court in allowing this appeal; and I am also of opinion that the justices were right, and that both the information and the conviction are in a form permitted by the Factories and Shops Act 1905. The informant Bishop is an inspector of factories and shops, and he laid an information in the Court of Petty Sessions against Chung Brothers"- that name-for that they being the "occupier" of a factory did permit a person, name unknown, to work on a Saturday after

4 CLR 1279

two o'clock in the afternoon (sec. 42). A solicitor appeared for

Chung Brothers," and objected that a firm could not be prose- cuted under the Factories Acts, but only the individual members thereof. The Bench overruled the objection, and, after hearing the evidence, convicted the defendants, imposing a penalty of forty shillings and costs. An order nisi to review was taken out by

Chung Brothers" on the ground, purely technical, "that the defendant firm as such could not be prosecuted and convicted for the offence alleged," and the order was made absolute with costs by Chomley J. In the evidence before the justices there was put in a notice of a desire to occupy the factory, signed 'Chung Brothers," and in it the name of the occupiers or firm is given as Chung Foon and Chung Tin trading as Chung Brothers." The learned Judge considered that both the information and the con- viction should have been drawn up against the individuals, not against the firm; and he made the order absolute in favour of

Chung Brothers."

I am of opinion that the Act permits of an information against factory occupiers under their firm name, and that the conviction rightly follows the form of the information: Jackson V. Litchfield 1. The Act imposes a great many duties on the "occupiers" of factories and shops in the interests of human life and health. The employer of the persons working in a factory is called the "occupier" throughout the Act (sec. 13). Before going into occupation he has to give notice, not only of his own name, but of 'the name of the firm under which the business of the factory or work-room is carried on" (sec. 11 (2)). That the "occupier" for the purposes of the Act may be a company or "firm of persons" is apparent from the form of the language in sec. 20 (3). This is also clear from sec. 162 (d); for it is enacted there, with regard to proceedings for offences, 'that the onus of proof that the person firm or company named in a summons is not the occupier of the factory

shall be on the defendant." Moreover, by the amending Act (No. 2008), which (sec. 1) is to be construed as one with the Act of 1905, it is provided that :- In any prosecution for a contravention of sec. forty-two" of the Act of 1905, "the occupier of a factory

shall be deemed to

1S Q.B.D., 474, at p. 478, per Brett L.J. 4 CLR 1280

have permitted a person to work in contravention of the said

section if any person whomsoever is proved to have been working in the factory or work-room of such occupier" during prohibited hours (sec. 9). So far, it is clear that, if any person be found working during prohibited hours in a factory the "occupier" is responsible; that the "occupier" is liable to a penalty therefor; and that a firm may, for the purposes of the Act, be the "occupier." But further, as to the form of the information, it is enacted (sec. 162 (c) ) that :-" It shall be sufficient to state the name of the ostensible occupier of the factory title of the firm or company by which the occupier of the factory

is usually known." I think that this provision applies to all parts of the information, including that part which states the name or names of the defendants. I see no reason for implying an exception to sec. 162 (c) which the legislature has not expressed. The plain meaning is that, wherever the informant has to mention the name of the occupier in the information, he may put the title of the firm, whether he has to mention the name of the occupier as defendant or otherwise. It is true that the name of the occupier might be inserted in informations under sec. 74 and sec. 159, for purposes other than that of naming him as a defendant. I do not say that his name must necessarily appear even in informations under these sections. But it may appear in a proceeding against 'A. B. an agent or servant of C. D. the occupier" &. There is no ground, however, for limiting the generality of the words of this enabling clause to such a very exceptional case.

It is urged, however, that the provisions of the Justices Act 1890 for enforcing a penalty are not applicable to a convicted firm. I do not see any difficulty in applying the primary means of enforcing the penalty by warrant of distress against the goods of the firm (sec. 94; and see Partnership Act 1891, secs. 14, 27). This may be all that the prosecutor wants. Under sec. 97 there is also power for the justices issuing the warrant of distress to order the defendant to be kept in custody until the return of the warrant, unless he give security for appearance at the time appointed for the return; and, under sec. 100, if the return be that no sufficient goods can be found, a justice may by warrant commit the defen-

4 CLR 1281

dant to gaol. It is certainly hard to conceive of Chung Brothers" being detained under that name, or of " Chung Brothers" being committed. What, then, is to happen when the legislature allows an information to be laid against a firm of persons, by their firm name, but does not provide machinery for enforcing to the point of imprisonment the penalty imposed ? The firm may pay the penalty, and, in default of payment, payment may be enforced by distress on the goods of the firm. But if sufficient goods of the firm cannot be found, there is certainly a difficulty-I am not sure that it is insuperable (see, for example, sec. 67 of the Justices Act 1890) in pressing the matter further. Yet this difficulty is not sufficient, to my mind, to justify us in dis- regarding the plain terms of the Act. We should carry out the Act SO far as its provisions allow us, and then stop. On the civil side, orders for payment are not followed by imprisonment, even when the officer returns nulla bona; and there are for many offences penalties that cannot be enforced by imprisonment. In this case, if a corporation were the defendant, distress could not be followed by imprisonment, and yet it is admitted that a corporation may be prosecuted and convicted in the corporate name. It may be that in this case the prosecutor prefers to take his chance of finding sufficient goods, rather than the difficulties peculiarly characteristic of cases against Chinese, with regard to name and identity. I cannot concur with the view that, although the information is laid against the firm as such, the conviction must be against the individual members. This is contrary to the doctrine laid down in Jackson v. Litchfield 1 that the judgment must follow the writ; and the membership of the firm would not be in issue before the justices. The case of Reg. V Littlechild 2 is very different. For there both the defendants were specifically named in the one information, and the evidence established the offence against each; the defendants were liable under the Act to separate penalties; and the justices were held to have a right, in their discretion, to try both offenders jointly. Also, as Lush J. expressed it 3:-" I think they (the two defendants) might be separately convicted, because the penalty incurred is separate."

18 Q.B.D., 474. 2L.R. 6 Q.B., 293. 3L.1 6 Q. B., 293, at p. 296. 4 CLR 1282

In the present case, the penalty incurred is joint.

persons are sued under a common firm name in pursuance of the Act; and the only matter in issue, the only matter as to which the justices can take evidence, is this, was a person working on the premises occupied by the firm during prohibited hours Occupation by this firm is an essential part of the informant's case in this prosecution. I am therefore of opinion that the Factories and Shops Act allows an information and conviction against a firm as well as against a corporation; and that the prosecutor is entitled to have the conviction entered against the defendants by their firm name, and to take such means of enforcing the penalty as the law may allow him.

Appeal allowed. Order appealed from dis-

charged. Case remitted to justices. Appellant to pay costs of the appeal. Solicitor, for the appellant, Guinness, Crown Solicitor for Victoria.

Solicitor, for the respondents, Field Barrett, Melbourne. (1909) 9 CLR

[HIGH COURT OF AUSTRALIA.] BATAILLARD

THE KING.

ON APPEAL FROM THE SUPREME COURT OF May 17.

Appeals to High Court in criminal cases--Special ave-Grounds for refuning-

Question of fact involved-Comment upon accused person refraining from giving May 24, 27.

evidence on oath-Crimes Act 1900 (N.S.W.), (No. 40 of 1900), sec. 407, sub-se 2

The High Court will not entertain an appeal from the Supreme Court of a State in a criminal case on a mere question of fact.