Broome v Chenoweth [1946] HCA 53

Broome v Chenoweth [1946] HCA 53 - HCA 1946 case summary — Zoe

[24]

Barry K.C. (with him Gowans), for the appellant. The con- struction of s. 221c¢ for which the informant contended and which was accepted in the Supreme Court does not give effect to the words "in respect of " in the expressions, in sub-s. (1), "in respect of any week or part thereof," and, in sub-s. (1a), "in respect of a period of time in excess of one week." Where the employee renders services when he feels disposed and is paid in the manner agreed in this case, he is not paid "in respect of " a period of time at all, but is paid in respect of the task done. This construction is not impeded by the expression "(whether at piece-work rates or otherwise)" in the definition of " salary or wages " in s. 2214 ; a person may be employed to work for a period of time and, nevertheless, be paid at piece-work rates for what he does in that time. The opposing construction would have the effect that all payments in excess of £2 for personal services are deemed to be payments of salary or wages. Where the legislature has intended such a result, it has used quite a different form of words, one which leaves no doubt as to the intention (Pay- roll Tax Assessment Act 1941-1942, s. 3 (3)). [He referred to Queensland Stations Pty. Ltd. v. Federal Commissioner of Taxation (1)]. The appellant was entitled to succeed on the plea of autrefois acquit. On the first information the defendant could have been convicted on evidence such as was given on the second information ; this being so, it is immaterial that there were variations between the two in- formations (R. v. Hmden (2) ; R. v. Barron (3) ). The only objection that could have been taken to the first information is that it lacked particularity ; any deficiency in this regard could have been cured (Justices Act 1928 (Vict.), s. 196 ; Income Tax Assessment Act, ss. 238, 239). It is immaterial whether the dismissal was or was not on the merits. When the defendant answered and pleaded to the first in- formation he was in jeopardy ; he was in the hands of the court,

[32]

s. 221c (1) and (14) the words "in respect of " are satisfied if the money is earned within the week or other period mentioned. The words of sub-s. (1) are "receive . . . in respect of any week or part thereof salary or wages," while those of sub-s. (14) are in a differ- ent order, "receives . . . salary or wages in respect of a period of time in excess of one week"; but, as sub-s. (14) is intended to be complementary to sub-s. (1), it cannot have been intended to refer to payments of a different character. The effect of the section is to assign a period to all work to which it relates. The section is directed to the earning rate, not to the terms of the contract of employment. The Pay-roll Tax Assessment Act throws no light on the meaning of s. 22lc; its scheme is different. Moreover, if, as is submitted, the respondent's construction gives the words of s. 221c their ordinary meaning, it is not to the point that another Act achieves a similar result in a different way. As to the plea of autrefois acquit, the first information did not disclose any offence ; it omitted the ingredients necessary to make up the offence under s. 221¢, and was no bar to the second information (Spencer Bower, Res Judicata, p. 36; R. v. Green (1)). An "acquittal"? on an' information which does not disclose an offence is nothing more than a statement that the defendant did not do the thing alleged which is not an offence. There is no "information " at all for the purposes of ss. 239, 240, of the Income Taa Assessment Act where that which purports to be an information does not disclose an offence. It is not material that the information could have been amended ; it must be taken as it stood at the time of the dismissal (O'Connell v. Lee (2); Jenkins v. Merthyr Tydvil Urban District Council (3); Ramm y. Gralow (4); Anderson v. Ayscough (5); Halsted y. Clark (6)). The general rule is that a decision on the merits is essential ; it is not enough that the defen- dant was in jeopardy ; the issue must have been tried and deter- mined (Spencer Bower, Res Judicata, p. 32; Hough v. Causer (7) ; R.v. Trench ; Ex parte Chalmers (8) ; New Brunswick Railway Co. v. British and French Trust Corporation Ltd. (9) ; Ex parte Curry (10) ; Haynes v. Davis (11) ). isle also referred to Flatman v. Light (12) ; Foreman v. McNamara (13) ; Ex parte Spencer ; Sherwood v. Spencer (14) ; Chia Gee v. Martin (15) ; Li Wan Quai v. Christie (16) ; R. v. Cleary (17); Dray v. Mitchell (18) }.

[72]

Standing alone, the words " in respect of any week or part thereof " or "in respect of a period of time in excess of one week " in s. 221¢ according to the grammatical and ordinary meaning of those words support the argument. But they do not stand alone. Salary and wages according to the definition in s. 2214 means salary, wages, commission, bonuses or allowances paid whether at piece-work rates or otherwise and includes payments under any contract for the labour of the person to whom the payments are made and so forth. And the Commissioner therefore argues that the section applies to payments in respect of work done during a week or part of a week and is not limited to payments calculated on a time basis. Macfarlan J. acceded to this view and I think he was right. Salary and wages as defined include payments that are not related to periods of time for instance piece-work rates, commission, bonuses and allowances. The grammatical and ordinary meaning of the words in s. 2210 do not give effect to the definition and cannot therefore be accepted. Penal statutes it was said, however, must be construed strictly ; but the duty of the Court in all cases is to ascertain the intention of the legislature from the language employed, having regard to the context in connection with which it is employed (Attorney-General vy. Carlton Bank (1) ; Craies, Statute Law, 4th ed. (1936), pp. 454-456). T should add that the appellant did not contend that the sum of £5 6s. 8d. was not properly calculated on the facts of this case. Another argument made for the appellant is summed up in the maxim, Nemo debet bis vexari pro una et eadem causa. The appellant was charged upon an information in October 1945 which was not proceeded with and was dismissed for want of prosecution. It is unnecessary, for my purposes, to consider the legal operation of the words " for want of prosecution " for, in my opinion, the information disclosed no offence under s. >. The 238th section of the Act provides that all informations shall suffice if the offence is set forth as nearly as may be in the words of the Act. But the informa- tion was not drawn in accordance with this provision. It merely alleged that the appellant, on 25th March 1945, contrary to the provisions of s. 221c of the Act, being the employer of Healy at wages in excess of £2 per week at the time of payment of wages to Healy, failed to make the deduction required from such wages as prescribed by the regulations made under the Act. And as the information did not follow the words of the Act then it should have stated the facts and circumstances which constituted the offence with

[106]

Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion. Some Victorian cases will be found discussed by Cussen J. in Knox v. Bible (1), and the matter is very fully examined by Clark J. in Davies y. Andrews (2), where cases from other jurisdictions are collected. Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an inform- ation may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment. It is, perhaps, enough to say that I think that the earlier information in the present case, although defective, was not outside the power of amendment conferred by s. 239 (1). But that does not establish that the defendant must be considered so to have stood in jeopardy upon the information as to be able to avail himself of his discharge therefrom as an answer to the sub- sequent charge. For in fact the information was not amended. In R. vy. Green (3), the judges upon a case reserved decided that, upon a plea of autrefois acquit, they should consider the former indictment as it was and not as it might have been made by amendment. At first sight, perhaps, it may appear not easy to reconcile Halsted v. Clark (4) with this view, and it may be thought to be a view which fails to give effect to the reality of the situation of a prisoner tried upon a defectively drawn indictment which, upon objection taken, he may be sure would be amended. But the two cases were very different. In Gireen's case (3) the acquittal was the result of the error in the indictment. In Halsted v. Clark (4) the dismissal of the in- formation was upon the ground that the commission of the offence was not proved, even if the charge were to be amended.

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Judgment (122 paragraphs)