R v Owens and Farrington - [1933] HCA 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,…

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 R v Owens and Farrington

Details

AGLC: R v Owens and Farrington [1933] HCA 20
Case: [1933] HCA 20
Decision Date: 27 April 1933

CaseChat Overview and Summary

The applicant, Alfred Joseph Seaton, sought a writ of prohibition from the High Court of Australia to restrain further proceedings upon his conviction by a magistrate for breaches of a Commonwealth Conciliation and Arbitration Act award. Seaton, the licensee of Larkin's Hotel, had been charged as a successor, assignee, or transmittee of a business bound by the award. The magistrate had amended the informations to substitute the name of Sharpe for Grimsley, and convicted Seaton on the basis that the licence had been transferred through successive persons to him, binding him to the award. An order nisi for prohibition was granted by a Judge of the Supreme Court of New South Wales, returnable before the Full Court of the High Court.

The legal issues before the High Court included whether the order nisi for prohibition had been validly obtained and whether the Court had jurisdiction to grant special leave to appeal. Specifically, the Court had to determine if the procedure adopted by the applicant, in obtaining an order nisi from a State Supreme Court Judge rather than a High Court Justice, was correct. Further, the Court considered whether it possessed the power to extend the time for appeal if the original appeal was out of time, and whether the facts presented warranted the granting of special leave to appeal, particularly concerning the interpretation of section 29(ba) of the Commonwealth Conciliation and Arbitration Act and the evidence of Seaton being a successor bound by the award.

The High Court found that the applicant's procedural steps were incorrect. Relying on precedent, the Court held that a Judge of a State Supreme Court lacked jurisdiction to grant an order nisi for prohibition returnable before the High Court. The Court also affirmed its previous decisions that it had no power to extend the time for appeal once the statutory period had expired. Regarding the application for special leave to appeal, the Court determined that the facts did not clearly raise the intended point of law, and in light of an undertaking given by the respondent regarding other charges, special leave was not warranted.

Consequently, the High Court refused special leave to appeal and struck out the appeal with costs.

Orders