Lee Fay v Vincent - [1908] HCA 70

7 CLR 389

CASE STATED, TRANSMITTED FROM THE SUPREME COURT OF Factories Act (W.A.), (No. 22 of 1904), sec. 46-Case removed under sec. 5 of

Judiciary Act 1907 (No. 8 of 1907)-Judiciary Act 1903 (No. 6 of 1903), sec. 18 -The Constitution (63 &64 Vict. C. 12), sec. 117-Discrimination between residents of different States.

7 CLR 390

The appellant was convicted in a Court of Petty Sessions of an offence under the Factories Act 1904 of which offence it was an element that there should be employed a Chinese who had not been so employed on or before 1st November 1903. Objection was taken to the validity of the Act, on the ground of its imposing a discrimination between residents of different States.

A case was stated by the magistrate for the consideration of the Supreme Court, which, on the assumption that the case fell within sec. 5 of the Judiciary Act 1907, ordered the proceedings to be transmitted to the High

Held, that no question as to the limits inter se of the constitutional powers of the Commonwealth and the States was in question, and that therefore the Supreme Court had power to determine the case.

But, held, that the case should under the circumstances be treated as a case stated by the Supreme Court under sec. 18 of the Judiciary Act 1903 for the consideration of the High Court.

Held, that whether the Factories Act did or did not apply to Chinese who were employed in a factory on 1st November 1903 in another State, the provision was not ultra vires the legislature of Western Australia as discrimin- ating between residents of different States also, that the construction of the Act was a matter of which the High Court had not original jurisdiction, but was a matter which they could only determine on appeal from the Supreme

The case was accordingly remitted to the Supreme Court for determination.

THE appellant was convicted in a Court of Petty Sessions for that being the occupier of a factory he employed one Lee New, a Chinese, who had not been SO employed on or immediately before 1st November 1903, contrary to the provisions of sec. 46 of the Factories Act 1904. Lee New was a naturalized British subject, now resident in Western Australia, who was employed in a factory in the State of Victoria on 1st November 1903, but had not been SO employed in Western Australia. A case was stated by the magistrate for the consideration of the Supreme Court which, acting on the assumption that the case fell within sec. 5 of the Judiciary Act 1907, ordered the matter to be transmitted to the High Court.

Barsden, for the appellant. The word "factory' taken to include factories situated outside the State of Western Australia; otherwise there would be a disability or discrimination

7 CLR 391

created contrary to the provisions of sec. 117 of the Common- wealth Constitution: Minnesota v. Barber 1.

[GRIFFITH C.J. referred to Miller…

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 Lee Fay v Vincent

Details

AGLC: Lee Fay v Vincent [1908] HCA 70
Case: [1908] HCA 70
Decision Date: 6 November 1908

CaseChat Overview and Summary

The appellant, Lee Fay, was convicted in a Court of Petty Sessions for an offence under section 46 of the Factories Act 1904 (W.A.). The charge alleged that the appellant, as the occupier of a factory, employed a Chinese person who had not been employed in a factory on or immediately before 1 November 1903. The Chinese person in question was a naturalized British subject residing in Western Australia, who had been employed in a factory in Victoria on the relevant date but not in Western Australia. The appellant objected to the validity of the Act, arguing it imposed unlawful discrimination between residents of different States. A case was stated for the Supreme Court of Western Australia, which, assuming jurisdiction under section 5 of the Judiciary Act 1907, transmitted the proceedings to the High Court.

The High Court was required to determine two principal questions. Firstly, whether the Supreme Court had the power to determine the case, particularly in light of the Judiciary Act 1907 and the nature of the constitutional questions raised. Secondly, the court needed to consider the validity of the Factories Act 1904, specifically whether its provision discriminated between residents of different States, contrary to section 117 of the Commonwealth Constitution, and whether the Act was within the legislative competence of Western Australia. The court also had to address the interpretation of the term "factory" within the exemption clause of section 46.

The High Court held that the case did not involve a question as to the limits inter se of the constitutional powers of the Commonwealth and the States, nor between the powers of different States. Therefore, the Supreme Court retained jurisdiction to determine the matter. However, the court treated the case as if it had been stated by the Supreme Court under section 18 of the Judiciary Act 1903 for the consideration of the High Court. The court found that section 117 of the Constitution, which prohibits discrimination against residents of other States, was inapplicable as the person in question was a resident of Western Australia and the rights were asserted within that State. The question of whether the Factories Act applied to employment in factories outside Western Australia was not a matter of federal jurisdiction, and the High Court could only consider it on appeal.

Consequently, the High Court remitted the case back to the Supreme Court of Western Australia for determination of the remaining issues, including the interpretation of the Factories Act. The appellant was ordered to pay the costs of the appeal to the High Court.

Orders