Constitutional Law (Cth)—Judicial power of the Commonwealth—Offence—National Service—Failure to attend for medical examination—Conviction—Court required to ask convicted person to enter into a recognizance if requested by prosecution—Mandatory order for imprisonment on refusal to comply—Whether judicial power conferred on prosecution—Whether unconstitutional interference by legislature with functions of court—Whether delegation of legislative power to prosecution—The Constitution (63 &64 Vict. c. 12) Ch. 111—National Service Act 1951-1968 (Cth), s. 49—Judiciary Act 1903-1969 (Cth), s. 40.

Decisions

December 9.
The following written judgments were delivered : -
BARWICK C.J. The applicant seeks by motion an order under s. 40 of the Judiciary Act 1903-1969 (Cth) removing into this Court an information laid against him by the respondent, who is a Commonwealth Police Officer, on 29th April last that, being a person who had been required by a notice served upon him under Pt III of the National Service Act 1951-1968 (Cth) to attend for examination, he failed to comply with the requirements of the notice contrary to the provisions of s. 49 (1) of the said Act. (at p54)

2. To the charge the appellant pleaded not guilty before a stipendiary magistrate. Evidence was given on behalf of the informant but none on behalf of the applicant. The magistrate found the offence proved. The officer of the Department of the Attorney-General employed in the office of the Commonwealth Crown Solicitor who appeared for the informant thereupon requested the magistrate to ask the appellant whether he was willing to enter into a recognizance to the satisfaction of the Court that he would comply with the requirements of any notice to attend for examination subsequently served upon him under Pt III of the said Act and would upon attending for examination submit himself to examination in accordance with that Part. This request of the officer was made pursuant to the provisions of s. 49 (2) of the said Act. It was then submitted on behalf of the applicant that s. 49 (2) was constitutionally invalid in that it purported to confer judicial power on "the prosecution" contrary to the Constitution of the Commonwealth. The magistrate made no decision on this submission nor did he impose any penalty for the commission of the offence he found proved. He adjourned the further hearing of the information to enable the appellant to make this motion to the Court. (at p55)

3. Section 49 of the said Act as amended by the National Service Act 1968 (Cth) provides as follows :

"49. (1) A person who has been required by a notice served on him under Part III to attend for examination but does not comply with the requirements of the notice is guilty of an offence punishable, upon conviction, in accordance with the next succeeding sub-section. (2) Where a person is convicted of an offence against the last preceding sub-section,…

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 Palling v Corfield

Details

AGLC: Palling v Corfield [1970] HCA 53
Case: [1970] HCA 53
Decision Date: 9 December 1970

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Palling and Corfield concerning the validity of a contract for the sale of certain shares. The central issue revolved around whether the agreement was void for illegality due to a contravention of the *Companies Act 1961* (Qld).

The court was required to determine whether the contract was rendered void *ab initio* by reason of the vendor's failure to comply with the provisions of s 162(1) of the *Companies Act 1961* (Qld), which mandated the lodgement of a prospectus before offering shares to the public. Specifically, the court had to ascertain if the transaction, which involved the sale of shares in a company that had not yet issued a prospectus, constituted an illegal offer to the public within the meaning of the Act.

The High Court held that the contract was not void for illegality. The majority reasoned that the prohibition in s 162(1) was directed at the act of making an offer to the public without a prospectus, and that the transaction in question did not amount to such an offer. Instead, it was a private sale of existing shares between two parties. The court applied the principle that a contract is not rendered illegal merely because it is connected with an illegal act, unless the contract itself is intrinsically illegal or its performance necessarily involves the commission of an illegal act. The court found that the contract for the sale of shares was not inherently illegal and its performance did not require a contravention of the Act.

The appeal was dismissed.

Orders