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[1907] HCA 23
High Court of Australia
1907-07-01
Higgins J, Isaacs JJ, Chomley J
Original judgment source is linked above.
ON APPEAL FROM THE SUPREME COURT OF VICTORIA. H.C. or A, Factories and Shops Act 1905 ( Vict.) No. 1975), secs. 42, 162* - Factories and Sho}
"EE A firm, of which A. and B. were the members, being the occupiers June 56,10, factory, were informed against and convicted under the firm name o offence under sec. 42 of the Factories and Shops Act 1905 of permit oes person to work in their factory after half-past two on a Saturday afte Higgins Jd Held (Higgins J. dissenting) that, notwithstanding sec. 162 (c) and
that Act, and sec. 9 of the Factories and Shops Act 1905 (No. 2), the tion was wrong, and that it should have been of the members of the their own names.
An order to review the conviction was made absolute by the Su Court.
Held, per Grifith C.J., Barton and Isaacs JJ., that the case should hi been remitted to the justices to convict the persons proved to be mem the firm.
Judgment of Chomley J.: Bishop v. Chung Bros., (1907) V-LB., A.L.T., 106, reversed. es
*Sec. 162. 'The following pro- +8ec. 9. "In any prosecution visions shall have effect with reference contravention of section forty- to proceedings before Courts of Petty the Principal Act the occupi Sessions for offences under this Act: - - _ factory or work-room shall be d
(c) It shall be sufficient to state the - _ to have permitted a person to name of the ostensible occupier of the _ contravention of the said section factory work-room bakehouse or shop rson whomsoever is proved to hi or the title of the firm or company by bent working in the factory or | which the occupier of the factory work- room of such occupier di the t room bakehouse or shop is usually during which work is pro known." the said section."
Appeat from the Supreme Court of Vietoria. At the Court of Petty Sessions at Melbourne, on 16th August 1906, an information was heard wherein Albert A. Bishop was
named as informant and "Chung Brothers of George's Lane, in Gy5x0' Bros,
_ the City of Melbourne, in the State of Victoria, manufacturers" were named as defendants. The charge stated was "that the said Chung Brothers at George's Lane in the City of Melbourne in the said bailiwick on the twenty-eighth day of July 1906, being the occupier of a certain factory or work-room within the _ meaning of the Factories and Shops Acts, did then and there permit a person, whose name is to this informant unknown,
to work on the day aforesaid, the same being a Saturday, after _ two o'clock in the afternoon to wit, between the hours of two
o'clock and three o'clock, in such factory or work-room, in partly manufacturing an article of furniture contrary to the form of the Statute in that case made and provided." The summons attached to the information was addressed to "Chung Brothers of George's Lane, in the City of Melbourne, in the State of Victoria, manufacturers."
At the hearing of the information, Chung Brothers were repre- sented by their solicitor, who, before any evidence was given, objected that a firm could not be prosecuted under the Factories and Shops Acts, but only the individual members thereof, but the magistrates overruled the objection. The evidence given on behalf of the prosecution included a notice under the Factories and Shops Act 1905 to the Chief Inspector of Factories signed "Chung Brothers" stating that they desired to occupy certain premises in George's Lane, Melbourne, as a factory and work- room, and that the "name of occupier or firm in full" was "Chung Foon and Chung Tin trading as "Chung Bros."
'The magistrates convicted Chung Brothers and in the register of convictions the conviction was stated to be of "Chung Brothers."
An order nisi to review this conviction was obtained by "Chung Brothers" on the ground that " the defendant firm as such could not be prosecuted and convicted for the offence alleged," and was made absolute by Chomley J.: Bishop v. Chung Bros. (.
From this decision Bishop, by special leave, appealed to High Court. is
Bryant (with him Arthur), for the appellant. The effect sec. 9 of the Factories and Shops Act 1905 (No. 2) is that th occupier of a factory may be guilty of an offence under sec, ¥ the Factories and Shops Act 1905, and, under see. 162 (¢) of tl latter Act, if a firm is the occupier of a factory, the members the firm may be prosecuted in their firm name. The prosecutio being in that form, the conviction of the members of the firm s properly in the firm name. Even if the conviction should hay been of the members of the firm in their own names, the Judg should have amended the conviction. "
Ah Ket and Lowe, for the respondent firm. A firm is not juristic person, and cannot be guilty of an offence except by th express provisions of a Statute. See. 42 of the Fuctories and 8 Act 1905 does not enable a firm to be prosecuted for any off See. 162 of that Act merely means that, where it is necessary t aver and prove that a person or firm is the occupier of a factory, the mere statement that a particular person or firm is the occupi of a factory shall be sufficient proof of that fact until the co trary is shown. It only applies where occupation of a fa a necessary ingredient of the offence, and not to a case in ¥ i the offence is one by an owner, and occupation is made evider of ownership. Occupation of a factory is not a m ingredient of an offence under sec. 42 of the Factories and Act 1905, but there are offences under the Factories and Acts of which such occupation is a necessary ingredient. s Factories and Shops Act 1905, secs. 18, 20, 21, 22, 26, 27, 63,1 The meaning of sec. 9 of the Factories and Shops Act 1905 f 2) is that, if a person is being prosecuted for an offence sec. 42 of the Factories and Shops Act 1905, and in the coi that prosecution it appears that that person is the oceupier factory, the onus of proof that he did not permit a person to in his factory is cast upon him. If a firm could be p 'for an offence under sec. 42 of the Factories and Shops Act a member of the firm could not avail himself of the pro
ded by sec. 160 (2). In England under 41 & 42 Vict ¢. 16, a H. 0. oF A. might be charged with an offence; not by virtue of sec. 91, pelle
hich is the prototype of sec. 162 of the Factories and Shops Act - Bisuor 1905, but by virtue of the provision of sec. 96 of the Act that the Guyx4 Bros, ~ word "person" includes a body of persons corporate or unincor- te. At common law there is no such thing as a joint offence : foryan v. Brown (1); R. v. Littlechild (2); Stone's Justices Manual 1906, p. 825.
Bryant, in reply, referred to the Partnership Act 1891, see. 14. Cur, adv. vult.
E., 515. (3) 7 El. & BL, 853. Q.B., 293; 40 L.J.M.C., (4) 27 V.L.R., 157; 23 A.L.., 35.
fails to comply with the notice, the inspector may summon | before a Court of Petty Sessions to show cause why the re tion of the factory should not be cancelled. See. 40 prescribe conditions to be observed in employing children or women it
factory for more than forty-eight hours in a week, and requit e the occupier of a factory, amongst other things, to keep a re of every day on which he avails himself of the provisions of sec. (2) of the section, and provides a penalty for the breach of thi provision. See. 64 provides that when an accident happens in factory the occupier must send notice to the inspector of th district, otherwise the occupier will be liable to a penalty. Tall these cases - they are only illustrations - it is of the essence o the offence that the defendant should be an occupier, and offence cannot be committed except by an occupier. On a charge therefore, of an offence under any of these sections, it is nec sary to allege in the information that the defendant was occupier. To give another illustration, sec. 74 provides that every occupier of a factory, and the agents and servants of su occupier, shall give certain information to an inspector wh required to do so, and that every person who contravenes th provisions of the section shall be guilty of an offence. A ch for an offence under that section-must allege that the defendan is either an occupier, or the agent or servant of an occupier, of
factory, and it is necessary to name the occupier in the mation. So that it is clear that under this Act there are case
which it is necessary, and other cases in which it is not necessar to allege in the charge that the person charged is an occup a factory. In many other sections of the Act - a majority
sometimes the fact that he is an occupier is made evidence 0 further fact to be proved.
The present charge is brought under sec. 42, which pro that: "In any factory or work-room where any Chinese p at anytime employed . . . noperson . . . shall em or authorize or permit any person whomsoever to work" ¢ between certain hours, and it goes on to provide that, if D person offends against any of the provisions of the
'shall be liable to a certain penalty. It is clear that under that H. C. or a. section an offence may be committed by an occupier or by any ae one else, and, in case of a prosecution for that offence, it is quite - Brsnop immaterial to allege that the defendant was an occupier. 'Quved Boon Sec. 162 deals with procedure and procedure only - including - s - - . . . Griffith C.J. that term evidence. It provides that: "The following pro-
words are : - "It shall be sufficient to state . . . the ti the firm . . . by which the occupier of the factory . | is usually known." Words of that sort can only apply to
where it is necessary to state that he is the occupier. We a to suppose that Parliament has made this provision simply: the prosecutor may gratify his fancy by making an irreley; allegation, and so acquire a right to proceed against several p under a firm name. This provision deals only with the sta ment of the charge, and has nothing to do with the process bringing the offender before the Court, or with the trial or ju ment, or with the mode of enforcing the judgment. See. 162( is: - ' The onus of proof that the person firm or company nami a summons is not the occupier of the factory work-room bakel or shop shall be on the defendant." 'That also can only deal wit cases where a person, firm or company is properly named i int summons as an occupier of a factory &c. If the name is uw merely to gratify the fancy of the prosecutor, the law will not
him. I take leave to doubt whether sec. 162 (d) applies at all cases in which the occupation by the defendant is a necessar ingredient of the offence. If it were intended to apply to th cases one would have expected the provision to have been the onus of proof that the person &. nwmed as defendant in t summons is not the occupier should be on the defendant. not necessary, however, to determine that point. The rest of th sub-sections deal only with matters of evidence when the offend is properly before the Court. ;
Then it is said that sec. 9 of the Factories and Shops Act (No. 2) makes a tlfference. That section only deals with evidence, and provides that, when it is necessary to prove thé certain offence has been permitted by the occupier of a faet shall be sufficient to prove that a particular person is the oce of the factory without calling evidence of permission on his p That has nothing to do with pleading, and the section aj whether the defendant is or is not the occupier.
With reference to the particular facts of this case, the is that Chung Brothers, being the occupiers of a certain fa did permit a person to work on a Saturday after 2 o'clock i afternoon in such factory in manufacturing an article of
"contrary to the form of the Statute in that case made and pro- -yided, I have already pointed out that the allegation that the _ defendants were the occupiers of the factory is entirely imma- "terial, and adds nothing to the effect of the information. I doubt whether it was intended by sec. 162 (c) of the Factories and Shops Act 1905 to refer at all to the manner of describing the defendant in the proceedings. It seems, however, to be accepted
Factories and Workshops, that defendants may be described by their firm name in the summons. There may be some practical conveniences in adopting that course, but there may be some _ practical difficulties. If the defendants appear, the case can go on, but if they do not appear, there may be difficulty in making use of the provisions of the Justices Act 1890 for proceeding in default of appearance. Again, a question of jurisdiction may arise. It is impossible to suppose that it was intended by such a provision as that in sec. 162 (c) of the Factories and Shops Act 1905 to give the justices jurisdiction over members of a firm not resident in Victoria. If Parliament intended that result, the attempt is ineffectual, because they have no power to do so.
endants is amendable, and is a matter that ought to be mended. That section provides that : - "On the hearing of ny information or other proceedings before any Court of Petty Sessions or justice no objection shall be taken or allowed to any information warrant or summons for any defect therein in sub-
justices who take the examinations of the witnesses in that half as heretofore or hereinafter mentioned." I think that, hen persons are charged by a firm name and they appear, the Ss ought to proceed against the persons who appear, and
in England, as would appear from Ruegy and Mossop's Law of
inquire whether the charge is proved against them. It mu
Supreme Court against the conviction are the persons w appeared in answer to the summons. There is, I think, irregularity in the appeal to the Supreme Court in its not been brought in the names of the particular appellants. I do think that that irregularity can put them in a better position thi if they had done what they ought to have done. But the Statute goes no further - even if it goes so far - than to allow the nam
the firm to be used in the summons. When the matter g beyond that point, the conviction must be of the indiy persons who have been proved to be guilty of the offence, judgment must be given and execution must be awarded a those individual persons. It is necessary, therefore, before t conviction is made, to ascertain the identity of the members. the firm, and that the Court has jurisdiction to deal with This being a step that must be taken sooner or later, I think may as well be done first as last. In this case, however, justices convicted the defendants in the firm name. Chomley was of opinion that that was wrong, and he was inclined to think that the information also was wrong. I concur with hit on both pots. But what follows? Chomley J. thought the conviction should be set aside. But under the Justices 1890 the Supreme Court has jurisdiction, amongst other things to remit a case to the justices for hearing with a direction of la In my opinion, where defendants are properly convicted upon th evidence, and there is an error of form in drawing up the viction, the proper course is to send the case back to the ju to correct the error. We are not in a position to impose a fi upon the respondents, for that must be done by the justices them selves. In my opinion, therefore, the order that Chomley J. have made was to remit a case to the justices to convict persons as are shown by the evidence to be members of tl firm. The justices must also, of course, ascertain that the p accused are within their jurisdiction. I think that, under circumstances, there should be no costs of the proceedings in
Supreme Court, and that the appellant should pay the ¢ 0 this appeal.
ARTON J. read the following judgment : - This was an appeal an order of the Supreme Court of Victoria, made by Chomley 'making absolute an order nisi to review a conviction under ec, 42 of the Factories und Shops Act 1905 (No. 1975).
"The information of Albert Bishop, Inspector of Factories and Shops, now appellant, set out that: eines Brothers being the of a certain factory or work-room" did on the 28th of July 1906 permit a person whose name was to the informant inknown to work on that day, being a Saturday, after two o'clock the afternoon, in the factory or work-room in partly manufac- ing an article of furniture.
Upon this information a summons to "Chung Brothers" was founded, and "Chung Brothers" were adjudged guilty of the charged, and fined 40s. and costs.
This conviction and order are the subject of the order to review nd of this appeal.
See. 42 of the Act of 1905, under which the information was dmittedly laid, prohibits any person in any factory or work- room where any Chinese person is at any time employed, and in factory or work-room where any person whosoever is em- ployed i in preparing or manufacturing or partly preparing or anufacturing any article of furniture, from working for himself for hire or reward, either directly or indirectly, or from iploying or authorizing or permitting any person whomsoever } work on any day between certain hours, and renders the
'. on conviction to a penalty for the first offence of not e than Ten pounds, and for a second or subsequent offence of less than Five pounds or more than Twenty-five pounds ; and e registration of a factory or work-room the occupier of which is convicted under this section of a third offence shall be forth- ith cancelled by the Chief Inspector."
"It will be observed that the occupancy of the premises is not er this section an ingredient of the offence. Any person who the forbidden work or any person who authorizes, employs, permits any other person to do it, commits the offence, and whether he is the occupier of the premises or not. Hence averment in the information that " Chung Brothers" were at
the time of the act charged "the occupier" is mere surplu and proof of the commission of the offence would be without any proof of such oecupaney. As it was wholly unnecessary that the averment of occupa should be made or proved, it is out of the question ' prosecution should reap any advantage from alleging it. Now let us turn to sec. 162, sub-see. (¢), which is relied support the legality of the proceedings - at any rate of a ; viction following that information. The words of this en cannot make it necessary to overload an information witl ments merely for the purpose of making one of them " suffi so as to aid in realising some ulterior purpose, nor can sue intention be imputed to the legislature. The obvious constr tion seems to me to be the true one, namely, that as sub-see. (¢): sec. 162 can only relate to what is material to be stated, it that the statement there mentioned shall be sufficient if it' comes necessary to make such a statement, 7.e., such an ave So, as to sub-sec. (d). Where it is in question whether a " son firm or company" named in a summons is the ocew the factory itself, it is enacted that the defendant must und the burden of proof that such " person &c." is not the oe By "in question" I mean that, unless it is a feature in the ¢ material to be proved on one side or the other, the enactn cannot apply to it. It would be superfluous to point matters out but for the fact that the contention for the pi tion seems to involve their denial. But then it is said that the enactment will be meaning useless unless it can be applied in the manner urged. to the rest of the Act of 1905, it is apparent that there are ma provisions in which occupancy seems to be a material fi or the offence. Such are sec. 20, sub-sec. (5), sec. 21, sub-se (2) and (3), sees. 23, 26, 27, 28, 64, 74, 142, 146 and 155, doubt there are others. In most if not all of these cases it w appear that sec. 162, sub-sees. (c) and (d), can be app! that power finds abundant scope in relation to them. Ise reason why we should extend its scope in the manner cont for. In my opinion occupancy was not an ingredient of the offem
_ information, so as to justify "the statement of the name of the "occupier " of the factory or work-room, or " the title of the tirm or company by which the occupier" was usually known. In the absence of such necessity the information should have described _ the defendant or defendants by name.
But then there was an appearance in defence to the informa- tion and summons. That appears to me to cure the defect jin the information, which moreover I think was amendable: Justices Act 1890, sec. 187. But does the appearance or defence justify a conviction of " Chung Brothers," and the imposition on at entity of a fine of 40s. and costs wpon a conviction? If the reasons already urged would have been sufficient as objections inst the information, as I think they would have been if not ually abandoned by the continuance of the defence under the _ name of " Chung Brothers," then a conviction in these terms could 'ly not be good. But if (1) the defect of the information has n cured, or if (2) the information is good, then whatever
nnot be supported: R. v. Ha arrison "0, and this is much such unless it can be found that the Statute gives a new quality such a conviction, and this I cannot find. It is an ordinary e of statutory construction that a Statute is not read to affect common law to a greater extent than its expressions clearly " dicate, for there is no presumption that a Statute is intended to erride the common law. See cases cited in Hurdeastle on Statu- y Law, 3rd ed., pp. 306 et seg.; also Clancy v. Butchers' Shop yployés Union (2), where in dealing with an industrial arbitra-
: 'ST.R., 508, (2) 1 C.L.R., 181, at p. 201. 5 BP VOL, TY, 82 ,
in this case, and its averment was not a necessary part of the 4.
tion the Chief Justice of this Court said - - " In construing it should be borne in mind that it is an Act in restriction of | common law rights of the subject, and, though that is no why the fullest effect should not be given to its provisions, it reason why the meaning should not be strained as agai liberty of the subject." That is a principle which appli as strongly as it did there. See. 9 of Act No. 2008 (Facto Shops Act 1905) (No. 2) ) was strongly pressed upon us, agree with what the Chief Justice has said on that section, 1 not think it carries the matter any further, or justifies a cont tion against a firm name even where the firm name, as stat d the information, has been justified by sec. 162 (c). That ist still the conviction, to be good, must be against some persons individually. In the present case it is impossible who is or are to pay the fine and costs, and in the event of payment, say by "Chung Brothers" upon distress, who is committed to prison (Justices Act 1890, sec. 99)? Is it "Chung Brothers " - a mere name? That of course is out of t question.
It is clear, however, to me that we ought not to dis i appeal. We can and ought to send the case back to the Court Petty Sessions for the purpose of a proper conviction being ma against the individuals whom that Court finds to be guilty. learned Judge has made the order to review absolute, it is im sible to arrive at the result I think right without allowi appeal and discharging that order. The case should back to the Petty Sessions with an instruction to convict. person or persons within the State jurisdiction as the Co holds liable upon the evidence. 3
Isaacs J. read the following judgment: - The only q raised in this appeal is whether the defendants could lawfully informed against and convicted in their firm name.
This assumes every fact against them. They assert the ¢ viction must be upset on the sole ground that they were and convicted under the name of " Chung Brothers," a fact they were a firm and traded under that name, committed the offence charged, although the evidence ¥
punishment which the law justified. A more technical objec- on cannot well be imagined. No injustice to the defendants 'could be suggested by the learned counsel representing them.
o Still the objection, technical as it is, must prevail, unless by eans of some statutory provision the case can be rescued from he rigid common law rule laid down in R. v. Harrison (1) that Il proceedings against an accused person must be taken in his dividual name.
'So far as the information is concerned, sec. 162 (c) of Act No. 1975 doesin my opinion suffice of itself to answer the defendants' dbjection. If the occupiers of a factory are satisfied to trade under firm name, to register their factory under a firm name, and to lace that name on their door for factory law purposes, the legis- ture has considered it sufficient to describe them by that name in an information for breach of the Fuctories Act for the purpose bringing them before the Court to answer the charge. This ntion may be gathered from an examination of various sec- tions of the Act when read in relation to each other. The regis- ion of factories is provided for. See. 11 requires all persons pying a factory to serve a formal notice on the inspector taining particulars of the names of the persons occupying the ory, and a description of the factory, and the name of the under which the business of the factory is carried on. oceupier of a factory is entitled, on forwarding the required lars and on payment of a fee, to have the factory registered. register all the particulars referred to are to be entered, Statute therefore prescribes for the recognition for the
¢. 20 requires the firm name to be placed legibly near the side of the factory.
The term "oceupier" is used in many sections to denote those
ms, and where so used is merely a compendious expression the person or persons in occupation of a factory.
42, under which the prosecution took place, expressly con-
tes in sub-sec. (2) that the occupiers of a factory should be
t to prove it, and the Court believed that evidence and inflicted H. C. oF A.
proceeded against as such for contravention of the pro the section, because it provides for a cancellation of the fi registration on the third conviction of the " occupier," and th fore, if sub-see. (c) of see. 162 operates at all to permit def to be summoned by a firm name, it ought to apply to this ¢ That sub-section is a remedial provision, and intended to plify procedure, and ought therefore, in my opinion, to be gi full operation. But, unless it is extended to naming the defen in cases where persons are in occupation of factories, it may far short of the simplification of procedure contemplated by legislature. I think the information was in proper form. do I see any legal difficulty in working out the subse proceedings. If, however, there be any want of formality in the deseri of the defendants, they appeared, and the justices by see. the Justices Act 1890 could and should have amended so far have cured the defect. Whittle v. Frankland (1) was a case somewhat resemblit this in respect of this particular objection. The appellant convicted by justices in petty sessions of an offence the Master and Servants Act and sentenced to a imprisonment with hard labour. By the Act under w the prosecution took place the complaint had to be mad oath by the person or persons, or any of them, with who such servant We., contracted, or by his or their agent, &. information was laid by the respondent as agent to " Bolland and his partners." It appeared on the hearing the agreement was made between the defendant and Thon Bolland on behalf of himself and his partners, constituting Rotherham, Masborough, and Holmes Coal Company ( i The principal, properly described, was therefore a corporatio distinct entity: see per Crompton J. (2). It was held, h that the Statute (11 & 12 Vict., c. 43, s. 1), correspon stantially with sec. 187 of the Justices Act 1890, got ov objection on the ground of variance. So far for the in ' But, once the matter is launched before the Court, the id of the partnership members is an essential fact for the © (1) 2B. &S., 49; 31 L.J.M.C., 81. (2) 31 L.J.M.C., 81 at p. 84
d Whatever be the result of the proceedings - whether conviction or acquittal - it is equally necessary to prevent the e persons being harassed again, to prevent a guilty person ing or an innocent person suffering, that the Court should
this case, as it happens, there is not really any doubt, upon e evidence as it stands, that Chung Foon and Chung Tin were mbers of the firm. It is possible that other persons were also bers, and if further evidence had been given it might have established who they were, or even that Chung Foon and Tin had ceased to be members of the firm at the time the ce took place.
n and Chung Tin were not occupiers. The Court of Petty Sessions convicted "Chung Brothers" as memorandum of the order shows, because in the column
The Court therefore convicted the defendants as "Chung thers" and did not actually find who the individuals were.
it, making that determination. Consequently the convie- is technically wrong - on the ground that the magistrates 'not gone on to find specifically the identity, and state in the andum of conviction, the names of Chung Foon and Chung The case of Reg. v. Littlechild (1) may be referred to.
hild and Heslop were charged on a joint information for
ed on separate convictions. The defendant appealed and that the information was wrong because it was joint,
but that if it was right the conviction was wrong because was separate. The Court, however, held against both objec and Mellor J. said it would have been wrong to have cony them jointly. Here the defendants were convicted jointly, wh in my opinion was wrong. But it does not follow that the e viction must be entirely set aside and treated as a nullity, defect, which has no merit in it, so far as the defendants concerned, can and ought to be cured. See. 146 of the Jusi Act 1890 enables the Supreme Court to remit the case to Court of Petty Sessions with a direction in law, and this I h Chomley J. ought to have done instead of absolutely qu the conviction. 7 The order nisi, which His Honor made absolute, was actu obtained by defendants in the name of "Chung Brothers." It) rather grotesque that defendants' argument to quash their viction, on the ground that they had to be described in th individual names and convicted separately and not jointly "Chung Brothers," should succeed on an order nisi they obtaine and had made absolute also in the joint name of "Chu Brothers" and not in their individual names, there being no moi justification for styling them by their firm name in the one than the other. It appears to me that, if their argument w good as to the conviction, it should have proved immedi tel fatal to their own order nisi. é Laying aside that technical point, however, this Court can and ought to give the judgment which the Supreme Court sh have made, and I therefore agree to the order prope by learned Chief Justice.
Hicers J. read the following judgment : - I concur with | other members of the Court in allowing this appeal; and also of opinion that the justices were right, and that b information and the conviction are in a form permitted by | Factories and Shops Act 1905. The informant Bishop is
name - for that they being the "occupier" of a facto ;
"two o'clock in the afternoon (sec. 42). A solicitor appeared for H.C. or A. "Chung Brothers,' and objected that a firm could not be prose- as cuted under the Factories Acts, but only the individual members - Bisnor thereof. The Bench overruled the objection, and, after hearing ¢, ,.< Bros. the evidence, convicted the defendants, imposing a penalty of forty "shillings and costs. An order nisi to review was taken out by "Chung Brothers" on the ground, purely technical, "that the 'defendant firm as such could not be prosecuted and convicted for the offence alleged," and the order was made absolute with costs by Chomley J. In the evidence before the justices there was put jn a notice of a desire to occupy the factory, signed "Chung Brothers," and in it the name of the occupiers or firm is given as Chung Foon and Chung Tin trading as Chung Brothers." The learned Judge considered that both the information and the con- vietion should have been drawn up against the individuals, not against the firm; and he made the order absolute in favour of "Chung Brothers."
I am of opinion that the Act permits of an information against factory occupiers under their firm name, and that the 'conviction rightly follows the form of the information : Jackson -y, Litchfield (1). The Act imposes a great many duties on the "occupiers " of factories and shops in the interests of human life 'and health. The employer of the persons working in a factory 'is called the "occupier" throughout the Act (sec. 13). Before sing into occupation he has to give notice, not only of his own 'name, but of "the name of the firm under which the business of the factory or work-room is carried on" (sec. 11 (2)). That the "occupier" for the purposes of the Act may be a company or "firm of persons" is apparent from the form of the language in sec, 20 (3). This is also clear from see. 162 (d) ; for it is enacted there, with regard to proceedings for offences, "that the onus of proof that the person firm or company named in a summons is not the occupier of the factory . . . shall be on the defendant." Moreover, by the amending Act (No. 2008), which (see. 1) is to be construed as one with the Act of 1905, it is provided that : - " In any prosecution for a contravention of sec. forty-two " of the Act of 1905, "the occupier of a factory . . . shall be deemed to
have permitted a person to work in contravention of th section if any person whomsoever is proved to have been wor in the factory or work-room of such occupier " during pi hours (sec. 9). So far, it is clear that, if any person b working during prohibited hours. in a factory the " oceupi responsible ; that the " occupier" is liable to a penalty th and that a firm may, for the purposes of the Act, be | "occupier." But further, as to the form of the information, it enacted (sec. 162 (c) ) that : - "It shall be sufficient to state name of the ostensible occupier of the factory title of the firm or company by which the occupier of the is usually known." I think that this provision ap ta all parts of the information, including that part which st the name or names of the defendants, I see no reason implying an exception to sec. 162 (c) which the legislature not expressed. The plain meaning is that, wherever the info has to mention the name of the occupier in the informat may put the title of the firm, whether he has to mention the na of the occupier as defendant or otherwise. It is true that name of the occupier might be inserted in informations und sec. 74 and sec. 159, for purposes other than that of naming asa defendant. I do not say that his name must necessari appear even in informations under these sections. But it appear in a proceeding against "A. B. an agent or servant of | D. the occupier" &c. There is no ground, however, for the generality of the words of this enabling clause to such a exceptional case. It is urged, however, that the provisions of the Justices A 1890 for enforcing a penalty are not applicable to a cony firm. I do not see any difficulty in applying the primary of enforcing the penalty by warrant of distress against the g the firm (see. 94; and see Partnership Act 1891, sees. 14, 27). may be all that the prosecutor wants. Under sec. 97 there is power for the justices issuing the warrant of distress to orde defendant to be kept in custody until the return of the wi unless he give security for appearance at the time appointed fo the return ; and, under sec. 100, if the return be that no suffi goods can be found, a justice may by warrant commit the dele
to gaol. Itis certainly hard to conceive of " Chung Brothers " ig detained under that name, or of "Chung Brothers" being mmitted. What, then, is to happen when the legislature allows 1 information to be laid against a firm of persons, by their firm e, but does not provide machinery for enforcing to the point
Ity, and, in default of payment, payment may be enforced by ess on the goods of the firm. But if sufficient goods of the firm cannot be found, there is certainly a diffieulty - I am not that it is insuperable (see, for example, sec. 67 of the tices Act 1890) in pressing the matter further. Yet this ulty is not sufficient, to my mind, to justify us in dis- ding the plain terms of the Act. We should carry out the Act so far as its provisions allow us, and then stop. On the il side, orders for payment are not followed by imprisonment, en when the officer returns nulla bona; and there are for many offences penalties that cannot be enforced by imprisonment. this case, if a corporation were the defendant, distress could be followed by imprisonment, and yet it is admitted that a
culiarly characteristic of cases against Chinese, with regard to name and identity. I cannot concur with the view that, although information is laid against the firm as such, the conviction be against the individual members. This is contrary to the doctrine laid down in Jackson v. Litchfield (1) that the judgment follow the writ ; and the membership of the firm would not in issue before the justices. The case of Reg. v Littlechild (2) ery different. For there both the defendants were specifically med in the one information, and the evidence established the against each ; the defendants were liable under the Act to ite penalties; and the justices were held to have a right, in diseretion, to try both offenders jointly. Also, as Lush J. it (3): - "I think they (the two defendants) might be itely convicted, because the penalty incurred is separate."
8Q.B.D., 474. (2) L.R. 6 Q.B., 293. (3) L.R. 6 Q.B., 293, at p. 296.
H.C. cr A. In the present case, the penalty incurred is joint. Two 1907. persons are sued under a common firm name in pursuance 0 wae Act ; and the only matter in issue, the only matter as to: ; the justices can take evidence, is this, was a person w the premises occupied by the firm during prohibited Occupation by this firm is an essential part of the inforn case in this prosecution. I am therefore of opinion Factories ond Shops Act allows an information and against a firm as well as against a corporation; and prosecutor is entitled to have the conviction entered aga defendants by their firm name, and to take such m enforcing the penalty as the law may allow him.
Appeal allowed. Order appealed charged. Case remitted to j 'Bibicht . Appellant to pay costs of the wppeal.
Solicitor, for the respondents, Field Barrett, Melbourne. ' oF Gone But i: Bip
Folly Deaf (ee 4 ne Reetygoar SesAGeseh Refato in Gee Sovent igs [HIGH COURT OF AUSTRALIA.) Gene BATAILLARD . .: e ; 4 \CrimR 496 AND THE KING. - E ly Z , - . C. oF A.
Appeals to High Court in criminal cases - Special leave - Grounds for réf Question of fact involved - Comment upon accused person refraining, evidence on oath - Crimes A ct 1900 (N.S. W.), (No. 40 0f 1900), sec. 407, 9
Griaith O4., The High Court will not entertain an appeal from the Supreme fsaacs an
Higgins JJ. State in a criminal case on a mere question of fact.