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Bishop v Chung Bros

Bishop v Chung Bros

Case [1907] HCA 23 24 June 1907

Jurisdiction

Appeal

Statutory Construction

Procedural Fairness

Remedies

Abuse of Process

Statutory Interpretation

Commercial Law

Civil Procedure

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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…

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 Bishop v Chung Bros

Details

AGLC: Bishop v Chung Bros [1907] HCA 23
Case: [1907] HCA 23
Decision Date: 24 June 1907

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning a prosecution against a firm, "Chung Brothers," for an offence under the *Factories and Shops Act 1905* (Vic.). The firm, comprising members A and B, was convicted under its firm name for permitting a person to work in their factory after 2:30 pm on a Saturday. The Supreme Court had made absolute an order nisi to review the conviction, finding it to be wrong.

The central legal issue before the High Court was whether a firm, as such, could be lawfully prosecuted and convicted for an offence under the *Factories and Shops Act 1905*, or if the prosecution and conviction must be against the individual members of the firm. This involved interpreting sections 42, 162(c), and 162(d) of the *Factories and Shops Act 1905*, and section 9 of the *Factories and Shops Act 1905 (No. 2)*, in light of common law principles regarding criminal liability.

A majority of the High Court, comprising Griffith C.J., Barton and Isaacs JJ., held that while section 162(c) of the *Factories and Shops Act 1905* permitted the use of a firm's name in the statement of an information, this provision was procedural and did not alter the fundamental common law principle that criminal convictions must be against identifiable individuals. They reasoned that the Act did not expressly create a legal personality for firms capable of committing offences, and that the enforcement of penalties, particularly imprisonment, necessitated individual conviction. Therefore, the conviction of "Chung Brothers" as a firm was deemed wrong.

The High Court allowed the appeal, reversed the decision of the Supreme Court, and remitted the case to the justices. The intention was for the justices to ascertain the individual members of the firm who were proven to have committed the offence and to convict them accordingly, ensuring that the Court had jurisdiction over those individuals.

Orders