Young and Rees v Quaine

[1910] HCA 1

10 CLR 110

Frederick Pollock in his work on Torts, 6th ed., p. 40, gives it as

his opinion that such an action would doubtless be treated as an action of contract if it became necessary for any purpose to assign it to one or the other class.

I agree that the appeal of the husband should be allowed.

Appeal of Agnes Brown dismissed. Appeal

of Duncan Brown allowed. Solicitors, for appellants, Atthow &McGregor. Solicitors, for respondent, Bouchard &Holland.

YOUNG AND REES. QUAINE

PEASE AND OTHERS QUAINE

ON APPEAL FROM THE SUPREME COURT OF Criminal law-Information-Conviction-Duplicity-No - offence disclosed-Special

leave to appeal to High Court-Industrial - Disputes Act 1908 (N.S. W.) (No. 3 of 1908), secs. 42,* * 45. MELBOURNE,

*Sec. 42 of the Industrial Disputes

he shall be liable to a penalty not Act 1908 provides that :-

exceeding one thousand pounds, or in 'If any person-

default to imprisonment not exceeding (a) does any act or thing in the nature of a lock-out or strike, or takes

"Provided that nothing in this sec- part in a lock-out or strike, or suspends

tion shall prohibit the suspension or or discontinues employment or work in

discontinuance of any industry or the any industry; or

working of any persons therein for any " (b) instigates to or aids in any of

cause not constituting a lock-out or the above-mentioned acts,

10 CLR 111

Certain defendants were proceeded against in the Industrial Court of New South Wales upon informations charging them with instigating other persons " to do an act in the nature of a strike, to wit, to discontinue work in the said industry, such discontinuance not being for a cause not constituting a strike," &. They were convicted and fined, the convictions following the words of the informations, and in default of payment were imprisoned. Rules nisi for habeas corpus were obtained on the ground that their detention was illegal inasmuch as the convictions were bad either for duplicity or uncertainty or disclosed no offence. The orders nisi having been discharged,

Held, that special leave to appeal to the High Court should be refused on the ground that the case being a criminal one was not one in which special leave should be granted; and

Per Griffith C.J., Barton J., O'Connor J., and Isaacs J., on the further ground that the information sufficiently charged an offence under sec. 42 of the Industrial Disputes Act 1908 (N.S.W.), and that the conviction was good.

APPLICATIONS for special leave to appeal from decisions of the Supreme Court of New South Wales.

Robert Young, Daniel Rees, Thomas Pease and eight other persons were proceeded against in the Industrial Court of New South Wales for offences under sec. 42 of the Industrial Dis- putes Act 1908.

The information in each case alleged that the defendant did unlawfully instigate certain coal miners and other persons being employés in a certain industry "to do an act in the nature of a strike, to wit, to discontinue work in the said industry, such dis- continuance not being for a cause not constituting a strike, con- trary to the Act in such case made and provided."

The informations were heard on 29th December 1909 and each of the defendants was convicted and fined £100, and in default of payment was ordered to be imprisoned for two months, one month being allowed within which to pay the fine. The convic- tions followed the form of the informations.

The defendants Robert Young and Daniel Rees not having paid the fines were on 31st January 1910 arrested and imprisoned in the Maitland gaol of which James Quaine was the keeper. The other defendants were similarly arrested and imprisoned in the Maitland gaol on 23rd February 1910.

Rules nisi were obtained from the Supreme Court on behalf of Robert Young and Daniel Rees calling upon Quaine to show

10 CLR 112

cause why a writ of habeas corpus should not issue on the ground that those prisoners had been illegally convicted and that there was no legal warrant for their confinement inasmuch as the convictions were bad either for duplicity or uncertainty and QUAINE.

disclosed no offence.

On the return of the rules nisi on 18th February 1910 the QUAINE.

Full Court discharged them.

On 25th February 1910 application was made on behalf of Thomas Pease and the eight other defendants for rules nisi for habeas corpus on similar grounds, but the Supreme Court, follow- ing their decisions in the cases of Young and Rees, refused the rules nisi.

The defendants now applied to the high Court for special leave to appeal from these decisions of the Supreme Court.

Wise K.C., (with him Arthur), for the defendants. By sec. 42 of the Industrial Disputes Act 1908 two separate offences are, among others, created, viz., instigating the doing of an act in the nature of a strike, and instigating the discontinuance of work. The proviso relates only to the second of these offences. The information in this case charges the first offence and then defines that offence in terms of the second offence. It is as if a man were charged with stealing " one sheep, to wit, one bale of wool." The result is that the information is bad on its face as it discloses no offence, and therefore the conviction which follows the language of the information is also bad: Ex parte Little 1; Smith V. Moody 2; Paley's Summary Convictions, 8th ed., p. 224. The fact that no one was embarrassed is immaterial: Ex parte Hop- kins 3.

[GRIFFITH C.J.-It is material before this Court, for the granting of leave to appeal is discretionary.]

This objection goes to a matter of substance R. v. North 4; Cotterill v. Lempriere 5. An information must contain "a direct, positive, single, and definite charge" R. v. Morley 6. The important principle involved in this case is that a man shall not be liable to be twice vexed for the same charge. The charge

12 S.R. (N.S.W.), 444. 2(1903) I K.B., 56. 317 Cox Cr. Ca., 444. 46 Dowl. &R., 143. 524 Q.B.D., 634. 61 Y. &J., 221, at p. 225. 10 CLR 113

must be SO that he can plead autrefois convict or autrefois acquit. The information could not have been amended for no offence was disclosed: Toohey v. Kerr 1; Knox v. Bible 2; Ex parte Sin Kye 3; Ex parte Price 4. Sec. 52 of the Industrial Disputes Act 1908 does not apply SO as to prevent the conviction being challenged, for, as there was no offence disclosed, the whole pro- ceedings were coram non judice.

GRIFFITH C.J. We think there is no ground for granting special leave to appeal in this case. The information accused the defendants of instigating certain persons to do an act in the nature of a strike, and then went on to describe the act, which is mentioned in the Statute, and is in its essence in the nature of a strike. If the offence had been charged in the bare words of the Statute without the videlicet the information would be good. The point, therefore, is at best one of extreme technicality. I see however, no reason for thinking that there is anything in it.

But if there were any such reason, this is not a case in which special leave to appeal should be granted, and that is SO whether sec. 52 does or does not apply. It must not be assumed that we think it does not apply.

BARTON J. concurred.

O'CONNOR J. concurred.

ISAACS J. concurred.

HIGGINS J. I wish to add that I concur upon the ground that this, being a criminal case, is not one in which special leave to appeal should be granted.

Solicitors, for the applicants, J. Woolf for Reid &Reid, Newcastle.

11907 Q. W.N., 21. 2(1907) V.L.R., 485; 29 A.L.T., 23. 315 W.N. (N.S.W.), 205. 4