Mitchell v Scales

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales, which had affirmed a magistrate's dismissal of an information. The appellant, Mitchell, had prosecuted the respondent, Scales, for pretending to tell fortunes, an offence under the Imperial Vagrancy Act 1824 (5 Geo. IV, c. 83). The central dispute was whether this English Act was in force in New South Wales at the time of the alleged offence.

The legal issues before the High Court were whether the Imperial Vagrancy Act 1824 was ever applicable in New South Wales under the provisions of the New South Wales Act 1828 (9 Geo. IV, c. 83), and if it was, whether it had been repealed by implication by subsequent New South Wales legislation, specifically Ordinance 6 Wm. IV. No. 6. The Court was required to consider the suitability of the English Act's provisions to the colonial conditions and the effect of local legislation on its continued operation.

The High Court, by majority, dismissed the appeal. Griffith C.J. and Barton J. held that the Imperial Vagrancy Act 1824 was never in force in New South Wales because its provisions, viewed as a whole, were unsuitable for the colony's conditions at the time of its introduction. They also found that even if it had been in force, Ordinance 6 Wm. IV. No. 6, which comprehensively dealt with vagrancy in New South Wales, had repealed it by implication. Isaacs J. expressed no concluded opinion on whether the Act was ever in force but was clear that Ordinance 6 Wm. IV. No. 6 effectively superseded it from its enactment, either by legislative declaration or by implied repeal due to its comprehensive and distinct provisions.

The appeal was dismissed with costs.