Bishop v Chung Brothers [1907] HCA 23

Bishop v Chung Brothers [1907] HCA 23 - HCA 1907 case summary — Zoe

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'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-

yisions shall have effect with reference to proceedings before Courts of Petty Sessions for offences under this Act :' - Provision (a) is as to the time within which an information must be laid. Provision (b) is a pleading provision : - "It shall be sufficient to allege that a factory or work-room bakehouse or shop is a factory or work-room bakehouse or shop within the meaning of this Act without more." That is, without describing what sort of a factory &e. it is. Provision (¢), which is the provision which is said to be
material to the present case, is: - " It shall be sufficient to state the name of the ostensible occupier of the factory work-room bakehouse or shop or the title of the firm or company by which the oeeupier of the factory work-room bakehouse or shop is usually known." It is said that, under that provision, a firm may be summoned qua firm, and that the names of the defendants eed not be mentioned. 'There is no doubt that Parliament can authorize a firm to be sued or proseeuted and convicted and punished under the criminal law. The question in the present e is whether Parliament has done so. The general rule is that the criminal law affects natural persons only. Considering that : the criminal law is ultimately enforceable by imprisonment, it is obvious that that must be so. In the case of corporations, of course, execution can only go against the goods of the corpora- tion, although under the provisions of the Justices Act 1890 any erson who takes part in the committing of the offence is also ible personally. In every prosecution there are involved certain elements. First, there must be an accused person; the common aw makes that necessary : Secondly, there must be a statement of the offence which the accused person is alleged to have com- ; Thirdly, there must be process to compel his appearance : ly, there must be a trial on evidence, followed by judg- 'ment and execution. All these matters are subject to the control 'Parliament. With which of them does sec. 162 (c) deal? The

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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

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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

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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

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