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Roberts v Ahern

Roberts v Ahern

Case [1904] HCA 17 10 August 1904

Appeal

Jurisdiction

Statutory Construction

Administrative Law

Statutory Interpretation

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1 CLR 406

[ ] ROBERTS AHERN

RESPONDENT INFORMANT.

ON APPEAL FROM COURT OF PETTY SESSIONS, Police Offences Act 1890 (Victoria) (No. 1126), sec. 5-Application of Act to Crown

-Protection of servants and agents of Crown-Appeals to High Court from inferior Courts of States. MELBOURNE,

The Executive Government of the Commonwealth or of a State is not bound June 3, 7, S,

by a Statute unless the intention that it shall be bound is apparent. 9, 10. August 10.

Held, therefore, that sec. 5 of the Police Offences Act 1890 (Victoria) did not, when it came into force, affect the Government of Victoria, and does not now affect the Government of the Commonwealth or its agencies in the management of departments transferred to the Commonwealth.

Where an act may lawfully be done by the Crown either at common law or by statute, the Crown is not restricted in its choice of agents or in the form of their appointment or in the mode of their remuneration, and the agents may do the act by their own hands or by those of their servants.

Held, therefore, that a person who, being the servant of an independent contractor employed by the Government of the Commonwealth to remove night- soil from Commonwealth premises, carried out that work without a licence from, and without having given any security to, the local authority, was not guilty of an offence under sec. 5 (vii.) of the Police Offences Act 1890.

Observations as to appeals direct from inferior State Courts to the High

APPEAL from the Court of Petty Sessions at Inglewood, Victoria.

The appellant, Roberts, was charged on information by the respondent, Ahern, inspector of nuisances for the Borough of Inglewood, for that "on the 25th March, 1904, he carted away

1 CLR 407

nightsoil without a licence from, and without having given any such security as is required by, the local authority, contrary to the Act in such case made and provided." The prosecution was instituted under sec. 5 (vii.) of the Police Offences Act 1890 (Victoria). The appellant having been convicted and fined an order was made ex parte giving him special leave to appeal to the High Court.

From the affidavits used on the hearing of the appeal it appeared that the appellant had on the day in question carted away nightsoil from the Post Office at Inglewood, and that he had not obtained a licence to do SO from the Borough of Ingle- wood, and had not given any security to that Borough. It also appeared that on the hearing of the information, the appellant had said " I was employed by one Appleby, who has a contract with the Commonwealth, and I was acting as his servant on behalf of the Commonwealth through the Postmaster;" that he asked for an adjournment in order that he might get professional assistance, and that an adjournment was refused.

Mitchell, K.C., and Robinson, for the defendant appellant. Sec. 5 (vii.) of the Police Offences Act

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 Roberts v Ahern

Details

AGLC: Roberts v Ahern [1904] HCA 17
Case: [1904] HCA 17
Decision Date: 10 August 1904

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the application of the *Police Offences Act 1890* (Vic) to the Crown and its servants or agents. The dispute involved the actions of the respondents, who were acting in their capacity as servants or agents of the Crown.

The central legal issue before the Court was whether the *Police Offences Act 1890* applied to the Crown and its agents, thereby potentially limiting or regulating their conduct. The Court was required to determine the extent to which the Act could bind the Crown, particularly in circumstances where the respondents were acting under the authority of the Crown.

The Court reasoned that the general principle of statutory interpretation is that legislation binds the Crown unless it is expressly stated otherwise or the contrary is clearly implied. In this instance, the Court found no such express provision or clear implication within the *Police Offences Act 1890* that would extend its operation to the Crown or its servants acting in their official capacity. Consequently, the Act was held not to apply to the respondents in the circumstances of their actions as agents of the Crown. The appeal was dismissed.

Orders