R v Owens and Farrington

[1933] HCA 20

49 CLR 20

THE KING

OWENS AND FARRINGTON;

Ex PARTE SEATON. Practice-High Court-Appeal from inferior Court of State exercising Federal juris-

diction-Writ of prohibition-Order nisi returnable before High Court granted by Judge of Supreme Court of State--JurisdictionTime for appeal-Extension SYDNEY,

-Special leave to appeal-Judiciary Act 1903-1927 (No. 6 of 1903-No. 9 of April 27.

1927). sec. 17-High Court Procedure Act 1903-1925 (No. 7 of 1903-No. 5 of 1925), sec. 37-High Court Rules, Part II., Sec. IV., r. 1.

On 17th February 1933 the applicant was convicted by a magistrate for breaches of an award made under the Commonwealth Conciliation and Arbitra- tion Act. Upon affidavits filed in the High Court Registry the applicant obtained, on 9th March 1933, from a Judge of the Supreme Court of New South Wales, an order nisi for prohibition returnable before the Full Court of the High Court.

49 CLR 21

ORDER NISI for prohibition.

Upon separate informations, laid under sec. 44 of the Common- wealth Conciliation and Arbitration Act 1904-1930, by the secretary of the New South Wales branch of the Federated Liquor and Allied Trades Employees Union of Australia, Alfred Joseph Seaton, the licensee of Larkin's Hotel, 653 George Street, Sydney, was charged before a magistrate that " being an employer subject to and bound to comply with an award of the Commonwealth Court of Conciliation and Arbitration made

on 17th December 1928 ,, in a matter in which the above-mentioned Union was the claimant, and the United Licensed Victuallers' Association of the Commonwealth of Australia was a respondent and "being the successor assignee or transmittee of the business of T. M. Grimsley formerly the licensee of

Larkin's Hotel

aforesaid, the said Grimsley being a member of the said United Licensed Victuallers' Association of the Commonwealth of Australia" and "being the licensee of and carrying on the business of a publican at the said

hotel" he committed various breaches of the award in question. Records from the Metropolitan Licensing Court were produced in evidence and showed that transfers of the licence of Larkin's Hotel had been granted as follows:-On 21st May 1928, from Clara Frances Hutchinson to Leon Sharpe; on 16th June 1930, from Sharpe to John Ray Palmer; on 6th July 1931, from Palmer to Thomas Norman Grimsley; on 11th July 1932, from Grimsley to Robert Louis Glover; and on 12th September 1932, from Glover to Seaton. Evidence was given by the secretary of the Association that Seaton was not a member thereof; that Grimley was not a member of the Association in July 1931 but became a member in September 1932; that Sharpe was a member from 6th October 1927 until 1st September 1929; and that Palmer was not a member between 21st May 1928 and 12th September 1932. Receipts for membership fees paid by Sharpe were put in evidence. The magistrate allowed the informations to be amended by substituting for the name of Grimsley therein the name of Sharpe. Submissions that, though the licence had been handed down, Seaton was not thereby made a successor, assignee or transmittee within the meaning

49 CLR 22

of sec. 29 (ba) of the Commonwealth Concitiation and Arbitration Act

1904-1930, and that a successor was a person who had some contractual relationship with his predecessor, were overruled by the magistrate who, on 17th February 1933, held that, as the licence,; which had been granted by the Government, had been transferred

from Sharpe through successive persons to Seaton, and, as the business attached to the licence, the latter was bound by the award. Seaton was convicted and fined. Upon an application made by Seaton on 9th March, a Judge of the Supreme Court of New South Wales made an order nisi calling upon the informant and the magistrate to show cause before the Full Court of the High Court why a writ of prohibition should not issue, directed to them, restraining them from further proceeding upon the convictions, upon the grounds, inter alia, 1 that the magistrate's decision as to the interpretation of the award, and that Seaton was a successor, or assignee, or transmittee of the business in question within the meaning of sec. 29 (ba) of the Commonwealth Conciliation and Arbitration Act 1904-1930 was wrong in law (2) that sec. 29 (ba) was ultra vires and did not apply (3) that there was no evidence that Seaton was the successor, assignee or transmittee of the business of a party bound by the award; (4) that there was no evidence that Sharpe was bound by the award, or that he transferred or assigned the business after the making of the award; and (5) that there was no evidence that Seaton was bound by the award.

The matter now came on for hearing before the High Court. O'Mara, for the informant, respondent. There is a preliminary objection that the matter has not been brought before this Court in the manner prescribed by the High Court Rules, Part II., sec. IV., r. 1, the method followed in this case being the method prescribed by sec. 112 of the Justices Act (N.S.W.), which is not applicable. The Judge of the Supreme Court had no jurisdiction to grant an order nisi for prohibition returnable before this Court (Symons V. City of Perth (1) ). Nor is this a case where leave to appeal should be granted, because such appeal would not have been brought

1(1922) 30 C.L.R. 433. 49 CLR 23

within the time prescribed, and this Court has no power to extend such time (Delph Singh v. Karbowsky 1; see also Muramats V. Commonwealth Electoral Officer (W.A.) 2 ).

[STARKE J. referred to Bell v. Stewart 3.] This Court is bound by sec. 37 of the High Court Procedure Act 1903-1925. This is not a case for the granting of special leave to appeal unless the Court is prepared to overrule its previous decisions on the matter.

Webb, for the applicant. Prior to the granting of the order nisi, affidavits relating to the matter had been filed in the Registry of this Court and had become part of the record, sufficient to make it a "matter pending in the High Court" within the meaning of sec. 17 of the Judiciary Act 1903-1927. If the order nisi was wrongly made, then special leave to appeal from the decision of the magistrate should be granted. There is no evidence that the applicant was a successor in title to the person bound by the award. The evidence does not show that Sharpe was a member of the Licensed Victuallers' Association; therefore it has not been proved that he was bound by the award. The decision in George Hudson Ltd. v. Australian Timber Workers' Union 4, SO far as it has the effect of deciding that the provisions of sec. 29 (ba) of the Commonwealth Conciliation and Arbitration Act are not ultra vires, should be reconsidered.

[EVATT J. referred to Carter v. E. W. Roach and J. B. Milton Pty. Ltd. 5.]

This Court should now grant an order nisi for prohibition, or, alternatively, special leave to appeal. The application for the order nisi granted by the Supreme Court Judge was made under sec. 112 of the Justices Act 1902 (N.S.W.) and was made within the time allowed. If that application is not in order, the Court should, in the circumstances, extend the time SO as to permit the making of another application. The question arises as to whether a successor in the licence is a successor in the business; a licensee is not neces- sarily the owner of the business. There is no definite legal nexus

1(1914) 18 C.L.R. 197. 2(1923) 32 C.L.R. 500. 3(1920) 28 C.L.R. 419. 4(1923) 32 C.L.R. 413. 5(1921) 29 C.L.R. 515. 49 CLR 24

OF A. or privity between the applicant and a predecessor who was bound

by the award (Bransgrove v. Ward and Syred 1 ). The applicant

KING was not the immediate successor of a person bound by the award.

FARRINGTON;

[0' Mara informed the Court that in the event of the dismissal of the application the applicant would not be held to an undertaking given by him to plead guilty in respect of other charges of breaches of the award preferred against him, and gave an undertaking that such dismissal would not be regarded as an estoppel upon the hearing of such further charges.]

THE COURT delivered the following judgment :-------- In this matter several points of procedure have been raised. The applicant adopted the course of obtaining an order nisi made by a Judge of the Supreme Court instead of a Justice of the High Court. But this procedure was declared to be wrong in the case of Symons V. City of Perth 2. Mr. Webb endeavoured to support the order nisi under sec. 17 of the Judiciary Act. At the time when the order was obtained there was no matter pending in the High Court, and therefore a Judge of the Supreme Court had no jurisdiction under that section to make the order. The same contention was advanced by Mr. Flannery in the case mentioned, and the point was necessarily involved in that decision. It was next suggested by Mr. Webb that the time for appealing should be extended. But, when the time for appealing has expired, it has been decided by this Court that the Court has no power to extend the time in the case of appeal (Delph Singh v. Karbowsky 3 ). In the absence of a Full Bench that decision should not be disturbed. Mr. Webb then suggested that this Court should grant a rule nisi, but no application was made within time to a Justice of this Court. Finally an application was made that special leave should be granted. But the facts appearing in the case do not very clearly raise the point of law which Mr. Webb wishes to argue, and, further than that, in view of the undertaking given by Mr. O' Mara that his client, the organization, will not hold the present applicant to his undertaking to plead guilty

1(1931) 30 A.R. (N.S.W.) 272. 2(1922) 30 C.L.R. 433. 3(1914) 18 C.L.R. 197. 49 CLR 25

to other charges and will not contend that he is estopped in any other proceedings, this does not appear to be a case in which special leave should be granted.

Special leave is therefore refused and the appeal struck out with costs.

Appeal struck out with costs. Solicitor for the applicant, R. C. Kirby. Solicitors for the respondent, Marsland &Co.

[HIGH COURT OF AUSTRALIA.]

ADELAIDE DEVELOPMENT COMPANY

PROPRIETARY LIMITED POHLNER

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Sale of and-Contract-Illegality-Subdivision-PlanApproval by town planner

-Deposit of plan-Condition precedent to sale of land-Failure to deposit- Illegality of sale-Plan deemed to have been deposited on receipt of letter of approval from town planner-Different plan approved from that subsequently deposited- MELBOURNE, Non-compliance with statutory requirements-Town Planning and Development March 16, 17. Act 1920 (S.A.) (No. 1452), secs. 32, 35-Town Planning Act 1929 (S.A.) (No. 1945), sec. 22.

The appellant brought an action against the respondent for damages for breach of a contract for the purchase of certain lots of land on a plan of sub- division in South Australia. The defendant pleaded illegality, relying on the appellant's failure to comply with the requirements of sec. 23 (c) of the Town