Electronic Rentals Pty Ltd v Anderson - [1971] HCA 13 - HCA 1971 case summary — Zoe

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Electronic Rentals Pty Ltd v Anderson

[1971] HCA 13

High Court of Australia|1971-05-05|Before: Owen JJ, McTiernan J, Menzies J

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Source facts

Court

High Court of Australia

Decision date

1971-05-05

Before

Owen JJ, McTiernan J, Menzies J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

The applicant is a shopkeeper. The offences said to have been committed by it were its allowing a shop at Auburn to be open at times when it was required by law to be kept closed. Summonses, purporting to have been issued by a justice of the peace pursuant to an information laid before him, were served upon the applicant in each case. The applicant appeared by counsel in the Magistrate's Court in response to these summonses. It did not plead in answer to the charges. It sought to escape doing so by taking a preliminary objection to the validity of the process by which it had been summoned to appear, knowing that, if this objection were sustained, it would be too late for the procecution to proceed anew.

[2]

I derive the following account of what occurred from the judgment of Asprey J.A. in the Supreme Court. Before the return day of the summonses, the solicitors for the applicants had written to the Under-Secretary of the Department of Labour and Industry giving notice that it would not be admitted that there had been valid informations to found the proceedings; and that the two justices of the peace concerned were required to be present at the hearing to give evidence of the circumstances surrounding the laying of the informations. The Under-Secretary agreed to this course, and the two justices of the peace were at the court. I may observe here that I do not understand on what grounds the Under-Secretary could be required to have them there. They were not his servants and he had no power to require their attendance. However they came. Counsel for the defendant, the present applicant, made it abundantly clear at the outset that objection was taken to the validity of each information, and asked that their validity be considered as a preliminary point. The solicitor representing the informants, a departmental officer, agreed to this course. After some discussion as to who would call them, each of the justices before whom informations were said to have been laid was called as a witness for the informants, examined in chief and then cross-examined by counsel for the applicant.

[5]

It seems surprising that what were in form informations for an offence committed at a shop in Parramatta Road, Auburn were put before a justice of the peace at Wollongong in the one case, and in the other before a justice of the peace, a public servant stationed at Dubbo, who at the time was in Newcastle. But these geographical peculiarities, although they may seem odd procedures by officers of a Government Department, have no legal significance; for in New South Wales the commission of the peace is for the whole of the State. It has been so from the commencement of the Colony, Governor Phillip and his successors being authorized by their commissions to appoint justices of the peace for their territory. There were at one time some territorial limits upon the jurisdiction of justices - see 14 Vict. No. 43, s. 5 and 17 Vict. No. 39, s. 12 - but these were not carried into the Justices Act, 1902. Wherever a justice performs the duties of his office they must be performed regularly and in strict accordance with law. His commission so commands, and by his oath he acknowledges himself to be so bound. To think otherwise is a heresy that was noticed by an early writer in New South Wales, J. F. McArthur whose Justices' Assistant was published in 1846. In the preface he said: "Strange as it may appear to lawyers, there are many persons, even among the magistracy, who do not conceive that the statutes under which the justices are empowered to act, are required to be administered according to law." He rightly and earnestly combated this notion, saying that: "To be possessed of a competent knowledge of his powers, and the laws regulating the practice of those powers, is not the privilege of a justice of the peace; but the duty, as far as in him lies." It may be that, as was said to us, this exhortation has remained unheeded. It was suggested that today some honorary justices, as distinct from stipendiary and police magistrates, lack the capacity, or do not exercise the care, that their responsible office demands. If that be so, and we have no evidence of it, it would be no reason for condoning irregularity. If the facts of the present case were as the justices of the peace said before the magistrate that they were, they were not solely responsible for their failure to perform their duties. They were, by their own account, misled. If it were a fact that they issued summonses without giving any consideration to what was put before them to found the summonses, then obviously they acted improperly. But - and again I say if the facts be as was said - they were induced and permitted to do so by the informants, officers of the Department of Labour and Industry, who failed to make known to them what was asked of them.

[7]

In the Supreme Court it seems that the argument proceeded as if the question was whether examining the justices before the magistrate was or was not legitimate. Their evidence, the informants submitted, was inadmissible. This contention was based primarily on a rule supposedly founded on passages in Duke of Buccleuch v. Metropolitan Board of Works [1] . There were two main questions in that case. The first was whether an arbitrator's evidence explanatory of his award is admissible in proceedings in which its validity is questioned: the second, as to the measure of compensation for depriving the Duke's land of its frontage to the Thames has no bearing on the present matter. The case as a whole is interesting because of the wealth of judicial learning and labour expended upon it. It was tried at nisi prius when a verdict was given for the plaintiff, the Duke. It then came before the Court of Exchequer on a motion for a non-suit pursuant to leave reserved [2] . The four members of that Court unanimously upheld the verdict for the plaintiff. Then the matter went to the Exchequer Chamber. There, by a majority of four to three, the judgment of the Court of Exchequer was reversed [1] . Then the case was taken to the House of Lords by proceedings in error. The judges were summoned: six of them attended, two of whom had taken part in the proceedings in the courts below. In the result the case had the attention at various stages of Kelly L.C.B., Martin, Bramwell and Channell BB.; Blackburn, Keating, Mellor, Lush, Willes, Smith and Brett JJ.; and in the House of Lords of Lord Chelmsford, Lord Westbury, Lord Colonsay and Lord Cairns. When so much was said by so many it seems to me unwise to rely on dicta gathered here and there from the judgments. The final decision, so far as relevant, was that an arbitrator can be called as a witness in a legal proceeding concerning his award. He may be questioned as to what matters were presented for his consideration. He cannot be asked what passed in his mind leading him to exercise his discretion in the way he did in relation to any matter he had to decide. That is all. But the two learned judges who were in the majority in the Supreme Court got more from the case. They said that "the evidence that the justices of the peace had not read or had not sufficiently read the informations laid admitted, can be given no weight". This proposition was, they considered supported by remarks in the House of Lords by Cleasby B. [1] where he said:

[8]

We can properly investigate the acts of a judge or arbitrator in prosecuting a particular inquiry, and his judgment founded upon it; but how can we investigate his secret thoughts or intentions? He is the only master of them, and what he says must be conclusive, as there is nothing which can contradict or explain it. And by Lord Chelmsford [2] : To ask the umpire, as the counsel for the defendants did, what led him to the conclusion as to the proper sum to be awarded, was really to inquire what passed through his mind before he formed his judgment. It would be, in my opinion, contrary to all principle so to scrutinize the exercise by an arbitrator of a discretionary power to award compensation; and I think that all the questions put with this object were objectionable, and the evidence given upon them ought to be struck out. And by Lord Cairns [1] : It appears to me that upon every point which may be considered to be a matter of fact with reference to the making of the award, the evidence of the arbitrator or umpire was properly admissible. He was properly asked what had been the course which the argument before him had taken - what claims were made and what claims were admitted; so that we might be put in possession of the history of the litigation before the umpire up to the time when he proceeded to made his award. But there it appears to me the right of asking questions of the umpire ceased. No one, I suppose, would wish to controvert any of that. But I have not been able to see its application to the present case. The justices were not asked to say what passed through their minds. Their evidence was not of what led them to exercise a discretion. What they said was that they did not exercise any discretion at all - in effect that they did not know what they were doing beyond signing their names. They were told, they said, that their signatures were required as witnesses: that is to say that they were asked to authenticate the acts of another person. But what they actually signed were summonses purporting to be their own acts, commands issued by them as a result of informations duly laid. They were, they say, misled. I cannot agree that their evidence to the magistrate was in the circumstances inadmissible: and if there had been evidence before the Supreme Court of the events they recounted to the magistrate, it seems to me that it could not have been brushed aside as inadmissible or not weighty. I agree generally in what Asprey J.A. said in his judgment in the Supreme Court on this aspect. However, the applicant having sought a remedy in the Supreme Court, and failed to obtain the relief it sought, cannot now reopen the matter. When the cases are resumed before the magistrate it will thus be on the basis that he has jurisdiction to hear them on the merits. 1. (1872) L.R. 5 H.L. 418. 2. (1868) L.R. 3 Ex. 306. 3. (1870) L.R. 5 Ex. 221. 4. (1872) L.R. 5 H.L., at p. 434. 5. (1872) L.R. 5 H.L., at pp. 457-458. 6. (1872) L.R. 5 H.L., at p. 462.

[11]

It is in general requisite in all summary proceedings of a penal nature that there should be an information or complaint, which is the basis of all subsequent proceedings, and without which the justice is not authorised in intermeddling. This long-standing passage is supported by much authority. It is applicable in New South Wales, where the relevant law is to be found in the Justices Act, 1902-1966. Historically the distinction between laying an information and making a complaint is that a complaint is the first step when an order is sought, while an information is the first step in proceedings of a penal character which will end in either conviction or acquittal: Halsbury's Laws of England, 3rd ed., vol. 25, p. 185. The distinction is verbally preserved in New South Wales in the Justices Act, although it may have worn thin elsewhere: see Reg. v. Nottingham Justices; Ex parte Brown [1] . In the cases presently before us an offence was alleged and documents couched in the form of informations were momentarily before the justices. Does this mean that an information was "laid before a justice", within the meaning of s. 52 of the Justices Act, if the justice was not told the nature of the document put into his hand, did not read it, and as a result of what was said to him believed it to be not what it was? I do not think so. The word "lay", like the word "exhibit", is well known in law as meaning the present or put forward an accusation or charge (usually in the form of an information or indictment) or some other relevant allegation as in "lay the damages" or "lay the venue". An information is not laid by handing a document to a justice and misleading him as to its nature. Such misinformation is not an information. A written information is only duly laid before a justice when he receives it as information for his attention. However, it appears that before the Supreme Court it was not really urged for the applicant that there was no information. The ground taken on the motion for prohibition was expressed to be that "the justice of the peace before whom the information was laid failed to exercise a judicial discretion in the process of receiving the information and the issuing of a summons thereon". 1. [1960] 1 W.L.R. 1315; [1960] 3 All E.R. 625.

[19]

Their Honours in the Supreme Court seem to me to have attached undue importance to the fact that, as they expressed it, the justice "issued the summons under his hand and seal". Even if any weight could, in the circumstances, be given to the terms of the summonses, it is a mistake to say that they were under the justice's hand and seal. We did not see the actual documents, but counsel for the respondent informants told us that they were in the form prescribed in the second schedule to the Justices Act, concluding with the words "Given under my hand and seal". That statement was not true. We were told that there was no seal on the document. It was a printed form on which was depicted a place for a seal: but that, of course, is not a seal. I realize that in many English textbooks it was commonly said that the absence of a seal is only a formal defect on which no objection can be based because of the provisions in Jervis's Act, which in New South Wales are s. 65 of the Justices Act. For this proposition the decision in R. v. Garrett-Pegge; Ex parte Brown [2] is cited. The judgments in that case are most illuminating. The decision was in point and applicable to the law of New South Wales from 1850 onwards when Jervis's Acts were adopted for the Colony by the Act 14 Vict. No. 43: but it ceased to be applicable when the Justices Act, 1902 came into force. In the second of Jervis's Acts, 11 & 12 Vict. c. 43, dealing with summary proceedings, the form in the schedule indicated that a summons should be under the hand and seal of a justice. But when in New South Wales earlier statutes were consolidated in 1902 this was not left simply as a direction to be gathered from the form. It became, by s. 62 of the Act of 1902, a mandatory requirement: "Every summons for the appearance of any person shall (a) be under the hand and seal of the justice issuing it " In R. v. Garrett-Pegge [2] the judgments - especially that of Avory J. contrasting the express mandatory provisions in Jervis's Act relating to warrants for arrest with the implicit, and merely directory, provisions of the form of summons - make it clear that s. 62 altered the law in New South Wales. It is true that the learned commissioner for the consolidation of the statute law in his certificate, given to accompany the Bill for the new Act, said that "this Bill solely consolidates, and in no way alters, adds to, or amends the law as contained in the Acts therein consolidated". But the effect of the Act of 1902 must be determined by what in terms it provides, not by what Parliament was told would be the result of it. In saying that I do not overlook the important statements in Beswick v. Beswick, [1] by Lord Reid [2] and by Lord Upjohn [1] , concerning the matters which guide Parliament when it has a consolidation Bill before it: and I am mindful of the recognition, by others of their Lordships in that case, that a consolidation Act is presumed not to alter the law. Nevertheless the question is: did it? In 1902 the Parliament of New South Wales substituted an express statutory requirement for what had theretofore been merely the prescription of a nonessential form. In McManamny v. Ross [2] , A'Beckett J. said: "The authorities are clear that where a statute requires that an instrument shall bear a seal it is invalid without one."

[30]

In Ex parte Qantas Airways Ltd.; Re Horsington [1] the Supreme Court of New South Wales (Sugerman, Asprey and Mason JJ.A.) had occasion to consider the case of a justice of the peace employed in the office of a trade union who, having received a complaint made by the secretary of the union, had issued a summons to an employer, alleging a failure to pay award wages. The learned judgments delivered in the Supreme Court in that case state, carefully, and I respectfully think correctly, the principles on which a justice of the peace may in a particular case be disqualified from receiving and acting on an information or complaint by reason of his connexion with a party interested. I do not doubt that these principles were there rightly applied. However, I see no reason for questioning the decision of the Supreme Court that the present cases are essentially distinguishable in their facts from that earlier case. I think that on the material that was before the Supreme Court their Honours' unanimous decision cannot be regarded as mistaken. Special leave should be refused. Nevertheless, I do not wish to be taken as approving without any qualification a procedure that may well be questionable in some cases. I think that when a Crown official intends to launch summary proceedings against a subject for breach of a penal law, it is, generally speaking, most undesirable that the information be laid before a justice of the peace who is a subordinate officer in the Department concerned to prosecute the proceedings. Because of manifold tasks of a routine administrative character that today have to be performed by justices of the peace - such as witnessing signatures to declarations and other documents and so forth - Government Departments, as well as banks, insurance companies and other institutions apparently find it convenient, for themselves and their customers, to have a justice of the peace employed on the premises. But the convenience of there being a justice readily available to perform administrative duties still leaves it in my view undesirable for him to exercise the discretionary functions of a justice in proceedings in which his employer is in substance a party. But what is thus undesirable is not necessarily disqualifying. Circumstances can alter cases and in the present instances the evidence does not, I consider, suffice to require the grant of special leave to appeal.