PrcK v ADELAIDE

PrcK v ADELAIDE - [1914] HCA 31 - HCA 1914 case summary — Zoe

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Grirrira C.J. This is an appeal from a decision of the Supreme Court of New South Wales granting a so-called prohibi- bition against a conviction by a stipendiary magistrate. The respondents were charged for that, being an organization bound by an award of the President of the Commonwealth Court of Conciliation and Arbitration, they failed to pay to J. A. Robertson, a chief engineer in their employment, a sum of money earned between 27th December 1912 and 11th March 1913 as overtime payment, such non-payment being contrary to the award. The complaint did not allege that the award was applicable to the engineer in question, but no objection was taken on that ground. The award came into operation on 31st October 1912. Robertson was chief engineer of the steamship Clan Ross of which the Clan Line Steamers Ltd. were the owners, and Cayzer Irvine & Co. Ltd., of Glasgow, were the registered managers. The port of registry of the ship was Sydney. Robertson was originally engaged by the owners in Scotland in 1911 under a two years' engagement. At the time when the payment for overtime is alleged to have been earned the ship was under charter to the respondents, having been placed at their disposal on 31st May 1912 under a charter-party dated 12th April 1912. It is common ground that in order to establish the liability of the respondents to pay the sum claimed for overtime it is necessary to show the existence of the relation of employer and employee between Robertson and the respondents, In June 1912, after the Clan Ross had been placed at the disposal of the respondents as charterers, the old articles were cancelled, and fresh articles were entered into at Australian rates of wages for a term of six months, which Robertson signed. On 18th December 1912, those articles having expired, new articles were entered into for a further term of six months, during the currency of which the payment for overtime in question is alleged to have been earned. They were signed by Robert Nicholson as master and by

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Company made overtime payments. But those clauses were arrangements between the owners and the respondents, and no member of the crew, of course, was party to any such arrange- ment. From the terms of the articles it is quite clear that the contract of the officers and the crew was with the owners and with the captain as their agent. No claim to be the employees of the respondent Company can be based upon these articles, even though the exempt master was paid by the respondents by arrangement with the owners. The charter-party merely settled the relations between the owners and the charterers. It was contended that it amounted to a demise to the respondent Com- pany. It abounds with internal evidence that it is merely a hiring agreement; and clause 3 shows that the providing and maintaining of the complement of officers, engineers, firemen and crew, and the payment for their provisions and wages, was undertaken by the owners. The extent of the charterers' authority was the power to direct the voyages, loadings, and unloadings of the ship and the carriage of passengers, and they had no power to deal with the employment or direction of the ship's complement or with her navigation or management. It is true that the officers and men were not parties to this document, but as the complainant relied on it as a demise giving the entire dominion over the ship and her complement, one may refer to its contents as amply rebutting that contention. The respondent, then, had no such authority over the ship's complement as would afford ground for inferring the relation of employer and employed. It has been seen that that relation existed between the men and the owners under the ship's articles. Unless, there- fore, there is evidence controlling the effect of the articles in relation to a ship which was hired fully equipped by the respon- dents from the owners, it is impossible to say that these men were employed by the respondent Company. In view of the documents and their plain effect, which cannot be controlled by seraps of interpretative oral evidence, I am clearly of opinion that the depositions contain nothing on which a finding that the men were so employed could reasonably be based.

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In the depositions the statement of the conviction and order in each case is preceded by the following words: - "Court decides that the Company has to pay the difference between the rates and holds that wages and overtime are the same." It is said that these words show that the stipendiary magistrate did not apply his mind to the evidence, but decided the case upon a misconstruction of the legal effect of the documents. I am not at all sure that this is the case, but if it were I do not think that the power of the superior Courts to deal with the case by way of statutory prohibition is at all affected. Upon the evidence it is clear to me that the appellant as complainant failed to make out his case, and I quite agree with the remarks of Cullen C.J. and Pring J. on that subject ; but I think it would be quite erroneous to say that the Supreme Court has no jurisdiction to deal with an application for a statutory prohibition where it appears that the magistrate has decided the matter purely upon an erroneous view of the law. It is true that a point of law can be raised upon a special case stated by justices for the Supreme Court, but that is a comparatively recent remedy. The power to grant a statutory prohibition was first given in New South Wales by the Act 14 Vict. No. 43, sec. 12. I think with Owen J. in Ex purte Oesselmann (1), that such an application is in substance an appeal. As that learned Judge pointed out, the right to apply is given to any person who "feels aggrieved by the summary conviction or order of any justice or justices." That is sec. 12 of the Act of 1850, now sec. 112 of the consolidation of 1902. And for very many years it afforded the only means by which a per- son who had been summarily convicted through a magistrate's mistake could obtain redress, except the appeal to the Quarter Sessions, which is not a tribunal for the rectification of errors in law by magistrates (see 5 Will. IV. No. 22 and 39 Vict. No. 38). In my opinion the opportunity to resort to a case stated by the justices gives a merely superadded remedy (see 45 Vict. No. 4 and the consolidation of 1902).

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possibly arrive at a conclusion upon it, the finding could not be interfered with." In 1881 was Ex parte Elliott (1). In that case Martin C.J, said (2) :- - " We need not inquire whether, if we had heard it in the first instance, we should have arrived at the same conclusion. We can only consider whether the justices had suffi-- cient evidence before them to justify them in fining the defendant should they, for some reason or other, not have been influenced by the evidence called in his defence." 'The learned Chief Jus- tice quoted Godfrey's Case (3) with approval, and said : - * Appeal is one thing; rehearing is another." Windeyer J. (4) said: - i "There was conflicting evidence, but it is sufficient for us to say - that there was evidence on which the justices could come to their - conclusion." In 1896, in Bartlett's Case (5), Darley C.J. said + "We look at the depositions to see whether there was that evi- dence, and we find that they do not contain any such evidence." In 1897 came Davis's Case (6), before Stephen, Owen and Cohen JJ. It is noteworthy for a special reason. Stephen J. said (7): - " All we have to decide is whether there is any evi- dence to justify the conviction. We cannot reverse the decision "unless it be manifestly mistaken, or wrong beyond all reasonable doubt': Ex parte Tranter (8). . . . I think that there was some evidence to satisfy the magistrates." Cohen J. agreed and added (9): - "The evidence was certainly very slight, but I think that the application should be refused." Owen J. dis- sented, and thought himself entitled to enter into an independent consideration of the facts. In Hx parte Tully (10) in 1900 Stephen J. said of the magistrate's finding: - * We cannot set it aside unless we see that his decision is such that no reasonable man should" (?could ) "have come to." In 1901 in Ex parte Damsiell (11) Cohen J. in Chambers found that certain evidence was improperly admitted, and said: - "The question therefore whether the evidence being erroneously admitted the conviction should be set aside." He referred to Ex parte Ward (12), and - concluded thus: - *'The rule having thus been laid down by the

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from the evidence in question there was ample evidence on which to convict the applicant this rule must be discharged." In 1902 came the case of Hr parte Oesselmann (1). The point was whether the word "appeal" in a Commonwealth Act included statutory prohibition. All three Judges - Stephen, Owen and Cohen JJ. - thought it did, on the ground that the word "appeal" in the Act in question was not limited to any narrow signification in State decisions. Owen J. alone made some observations relied on here for the respondents. But, with great respect to his Honor, the error is palpable. First, it must not be forgotten that the same learned Judge took a different view from the rest of the Court in Davis's Case (2). And in Oesselmann's Case (1), while recalling the principle that the magistrate's finding was to be regarded in the same way as the verdict of a jury, the learned Judge overlooked the fact that the analogy applied only to a Judge's verdict attacked on the ground that it was against evidence.. Mr. Ralston was asked if any other judicial utterance could be found to support this wide statement, and the only case he referred to in that connection was Ex parte Gaynor (3). That, however, was a common law prohibition, and contains nothing to support the view urged. Lastly, in 1904 was the important case of Ex parte Moy Shing (4), before Darley C.J. and G. B. Simpson and Pring JJ. The Chief Justice, after again quoting the initial case of Ex parte Ward (5), said (6): - " Since, therefore, there was before the Court below sufficient evidence to support the conviction, this Court must, under the provisions of sec. 115 of the Justices Act, refuse this application." G. B. Simpson J. said (7): - "I entirely concur with his Honor in all he has said as to our duties in considering whether a writ of prohibition should be granted under sec. 115 of the Justices Act. In all such matters we are, in my opinion, bound strictly to follow the provisions of that section." Pring J. said in agreeing (7), "I -base my decision upon the construction of sec. 115 and upon Ex parte Ward" (5).

At a glance

Court

Decision date

Before

Source

Judgment (109 paragraphs)

Parties