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Parisienne Basket Shoes Pty ltd v Whyte

Parisienne Basket Shoes Pty ltd v Whyte

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Case Copied 25 February 1938 44 min read

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59 CLR 369

PARISIENNE BASKET SHOES PROPRIETARY

LIMITED AND OTHERS WHYTE

ON APPEAL FROM THE SUPREME COURT OF Prohibition-JusticesJurisdictionLimitation of time-Information to be laid

within two months of offence-Erroneous decision of justices that information laid within statutory period-Factories and Shops Act 1928 (Vict.) (No. 3677), sec. 229 (a). Justices-SummonsReturn day irregularly extended-Justices Act 1928 Vict.) Nov. 11, 12.

(No. 3708), sec. 23 (3)-Justices Act Rules 1936 (No. 1), r. 23.

Sec. 229 (a) of the Factories and Shops Act 1928 (Vict.) requires that an information in respect of certain offences under that Act "shall be laid within two months after the commission thereof."

Held, by the whole court, that the justices before whom an information came for hearing had jurisdiction to determine whether it was laid within the statutory period or not, that, if they made an erroneous decision in SO doing, they were still acting within the limits of their jurisdiction, and, accordingly, that prohibition would not lie.

The return of two summonses to answer informations before justices having been irregularly extended, in one case the defendants appeared, were charged and pleaded to the information, no objection being taken to jurisdiction, and in the other case the defendants did not appear, but counsel on their behalf objected to the jurisdiction of the court.

59 CLR 370

Held, as to the first case, by the whole court, and, as to the second case, by Starke, Diron, Evatt and McTiernan JJ. (Latham C.J. dissenting), that the irregularity did not affect the jurisdiction of the justices and, accordingly, was not a ground for prohibition.

Decision of the Supreme Court of Victoria (Full Court) affirmed. APPEAL.

On 20th June 1936 John Moffatt Whyte, an inspector of factories under the Factories and Shops Act 1928 (Vict.), laid information, and procured summonses to be issued calling upon the defendants, Parisienne Basket Shoes Pty. Ltd., George Marinoff and Angel Petroff, to answer charges for breaches of sec. 233 of the Act. One informa- tion alleged that the defendants did in respect of the period com- mencing on the 17th day of April 1936 and ending on the 23rd day of April 1936 employ one Papas at a lower rate than the rate determined by a wages board appointed under the Factories and Shops Act. The original return day named in the summons was 9th July 1936, but, on 3rd August 1936 and before service, this date was extended to 13th August 1936. The summons was served some time between 3rd and 10th August 1936. The other infor- mation made a charge in respect of the same period in the case of another employee named Zorich. The original return day named in this information was 9th July 1936, but on 3rd August 1936 this date was extended to 3rd September 1936. The summons on this information was served after 3rd August 1936 and about 27th August 1936. In both cases the extension of the return days was made by a justice of the peace on information…

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.

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Details

Case: [1938] HCA 7
Decision Date: 25 February 1938

CaseChat Overview and Summary

The case of *Parisienne Basket Shoes Pty Ltd v Whyte* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellants, Parisienne Basket Shoes Pty Ltd and two individuals, were charged with breaches of the *Factories and Shops Act 1928* (Vic.). The dispute arose from the alleged employment of two individuals, Papas and Zorich, at a rate lower than that determined by a wages board. The core of the legal challenge was whether the informations were laid within the statutory time limit and whether the summonses had been validly extended, thereby affecting the jurisdiction of the justices.

The High Court was required to determine two primary legal issues. Firstly, whether the requirement under section 229(a) of the *Factories and Shops Act 1928* that an information be laid within two months of the commission of an offence was a jurisdictional prerequisite, such that a failure to comply would oust the jurisdiction of the justices. Secondly, the court had to consider whether the purported extension of the return dates of the summonses, which were not made upon oath or affidavit as required by section 23(3) of the *Justices Act 1928* (Vic.), rendered the summonses invalid and deprived the justices of jurisdiction.

The court held that the justices had jurisdiction to determine whether an information was laid within the statutory period. An erroneous decision on this point did not oust their jurisdiction, and therefore, prohibition would not lie. This principle was applied to both cases. Regarding the summonses, the court found that in the case concerning Papas, where the defendants appeared and pleaded without objection to jurisdiction, any irregularity in the extension of the summons did not affect the justices' jurisdiction. However, in the case concerning Zorich, where the defendants did not appear but objected to jurisdiction through their counsel, the majority of the court (with Latham C.J. dissenting) found that the irregular extension of the summons meant the justices were not properly seised of the matter, and prohibition should issue. The decision of the Supreme Court of Victoria was affirmed in part and overturned in part.

Orders