Re Australasian Meat Industry Employees' Union v RJ Gilbertson (Queensland) Pty Ltd [1988] FCA 369; 26 IR 237 (21 October 1988)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
And: R.J. GILBERTSON (QUEENSLAND) PTY LTD
Nos. Q 11-28 of 1987
Criminal Law and Procedure - Industrial Law
26 IR 237

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Criminal Law and Procedure - information - whether signature of authorized agent "signature of prosecutor" - whether information a nullity - whether absence of signature goes to jurisdiction or is a "defect or irregularity" - duty of registrar in receiving information and issuing summons - alleged inconsistencies between informations.

Industrial Law - employer and employee - alleged dismissal by reason of proscribed circumstances - whether informations disclosed offences - whether exclusion from being a regular daily employee could amount to injury in employment or alteration of position to prejudice.

Conciliation and Arbitration Act 1904 s.191(2), s.136

Federal Court of Australia Act 1976 s.38(1), s.51(1)

Federal Court Rules O.49 r. 1(1)

Conciliation and Arbitration Regulations reg. 156

HEARING

BRISBANE
21:10:1988

Counsel for the Prosecutor: Mr D. Hall

Solicitor for the Prosecutor: Poteri Woods & Co.

Counsel for the Defendant: Mr M. Cockburn with Mr K. Watson

Solicitor for the Defendant: Morris Fletcher Cross.

DECISION

These eighteen separate proceedings were listed for trial together on Monday 10th October 1988. Each proceeding is the subject of an information laid on 24th December 1987 before a Deputy District Registrar of the Court, and a summons issued on the same day. The defendant appeared by counsel at several directions hearings prior to 10th October 1988.

2. On Friday 7th October 1988, the defendant filed and served a notice of motion, seeking to have all the proceedings struck out. The affidavit filed and served with the notice of motion alleged that the proceedings were invalidly commenced, but neither the notice of motion nor the affidavit gave any clue as to the grounds of invalidity. Counsel for the defendant moved the Court on 10th October. Because of the inadequate notice, counsel for the Australasian Meat Industry Employees' Union ("the Union") was granted an adjournment until 11th October, before being called upon to respond. In the event, argument was not completed until the morning of 12th October. At that stage, I dismissed the motion. Because of the large number of authorities cited, and because of the importance of some of the matters argued, I asked counsel whether there was any objection to my publishing my reasons at a later date. In the absence of such objection, I reserved my reasons for judgment. I now publish those reasons.

3. The proceedings alleged offences against s.5 of the Conciliation and Arbitration Act 1904 ("the C. & A. Act"). The relevant portions of sub-s. (1) of that section are as follows:
"5(1) An employer shall not dismiss an

employee, or injure him in his employment, or
alter his position to his prejudice, by reason
of the circumstance that the employee -
(a) is or has been, or proposes, or
has at any time proposed, to
become, an officer, delegate or
member of an organization, or of
an association that has applied to
be registered as an organization;
or
.......
(f) being an officer, delegate or
member of an organization, has
done, or proposes to do, an act or
thing which is lawful for the
purpose of furthering or
protecting the industrial
interests of the organization or
its members, being an act or thing
done within the limits of
authority expressly conferred on
him by the organization in
accordance with the rules of the
organization.
Penalty: $400.00."

4. Section 4(1) of the C. & A. Act contains definitions which apply throughout the C. & A. Act, "except where otherwise clearly intended". The definitions of "employee" and "employer" are as follows:

""Employee" means any employee in any industry
and includes any person whose usual occupation
is that of employee in any industry;
"Employer" means any employer in any industry
and includes any person who is usually an
employer in an industry and also includes a
Club."

5. The alleged offences relate to six persons. The defendant is charged with three offences in respect of each such person. The charges fall into three groups. In the first group, which consists of the matters numbered Q11, 16, 19, 22, 24 and 27 of 1987, it is alleged that the defendant dismissed each of the six persons from his or her employment by reason of one or more of the circumstances referred to in paragraphs (a) and (f) of s.5(1) of the C. & A. Act. An example of a matter in the first group is matter No. Q 11 of 1987, in which the relevant part of the information was as follows:

"At the time and place specified below the
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION of
appears before DEPUTY
DISTRICT REGISTRAR ALLEN of the Federal Court
of Australia and informs the said DEPUTY
DISTRICT REGISTRAR ALLEN that on 3 April, 1987
at the Cannon Hill Abattoir at Brisbane in the
State of Queensland R.J. GILBERTSON
(QUEENSLAND) PTY LTD, a company duly
incorporated, of Colmslie Road, Cannon Hill,
Brisbane, in the State of Queensland and an
employer dismissed ROBERT CHARLES DOBSON from
his employment by reason of the circumstance
that the said ROBERT CHARLES DOBSON......".

There follows a recital of four of the circumstances referred to in s.5(1)(a) and (f). The other informations in the first group are in similar terms, in the relevant parts, although they refer to different persons, and in some cases the circumstances alleged are different.

6. The second group of informations consists of matters Nos. Q 12, 14, 17, 21, 25 and 26. In this group, it is alleged that, in May 1987, the defendant injured each of the persons in his or her employment by doing various acts in respect of that person. An example of an information in this group is afforded by that in matter No. Q 12 of 1987, the relevant parts of which are as follows:

"At the time and place specified below the
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
of appears before DEPUTY
DISTRICT REGISTRAR ALLEN of the Federal Court
of Australia and informs the said DEPUTY
DISTRICT REGISTRAR ALLEN that in the month of
May, 1987 at the Cannon Hill Abattoir at
Brisbane in the State of Queensland R.J.
GILBERTSON (QUEENSLAND) PTY LTD, a company
duly incorporated, of Colmslie Road, Cannon
Hill, Brisbane in the State of Queensland and
an employer injured ROBERT CHARLES DOBSON
in his employment by -
(a) Excluding him from his usual occupation
as a regular daily employee at the said
company's undertaking at the Cannon Hill
Abattoir,
(b) Refusing to re-engage him in his usual
occupation at the said company's
undertaking at the Cannon hill (sic.)
Abattoir upon the resumption of work
thereat,
(c) Failing to re-engage him in his usual
occupation as a regular daily employee at
the said company's undertaking at the
Cannon Hill Abattoir upon the resumption
of work thereat,
(d) Requiring that employees at the said
company's undertaking at the Cannon Hill
Abattoir and the said ROBERT CHARLES
DOBSON acquiesce in the exclusion of the
said ROBERT CHARLES DOBSON from his usual
occupation as a regular daily employee at
the said undertaking as a condition of
the resumption of work thereat,
by reason of the circumstance that the said
ROBERT CHARLES DOBSON......".

The same four circumstances as appear in matter No. Q 11 of 1987 are set out. The other informations in the second group are in similar terms to this information, although a different person is referred to in each case, and the circumstances alleged may not be the same.

7. The third group of informations consists of matters Nos. Q 13, 15, 18, 20, 23 and 28 of 1987. Each of these alleges that in May 1987 the defendant prejudiced one of the six persons in his or her employment. An example of an information in the third group is that in matter No. Q 13 of 1987. The relevant portions of that information are:

"At the time and place specified below
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION of
appears before DEPUTY
DISTRICT REGISTRAR ALLEN of the Federal Court
of Australia and informs the said DEPUTY
DISTRICT REGISTRAR ALLEN that in the month of
May, 1987 at the Cannon Hill Abattoir at
Brisbane in the State of Queensland R.J.
GILBERTSON (QUEENSLAND) PTY LTD, a company
duly incorporated, of Colmslie Road, Cannon
Hill, Brisbane in the State of Queensland and
an employer prejudiced ROBERT CHARLES DOBSON
in his employment by -
(a) Excluding him from his usual occupation
as a regular daily employee at the said
company's undertaking at the Cannon Hill
Abattoir,
(b) Refusing to re-engage him in his usual
occupation at the said company's
undertaking at the Cannon hill (sic.)
Abattoir upon the resumption of work
thereat,
(c) Failing to re-engage him in his usual
occupation as a regular daily employee at
the said company's undertaking at the
Cannon Hill Abattoir upon the resumption
of work thereat,
(d) Requiring that employees at the said
company's undertaking at the Cannon Hill
Abattoir and the said ROBERT CHARLES
DOBSON acquiesce in the exclusion of the
said ROBERT CHARLES DOBSON from his usual
occupation as a regular daily employee at
the said undertaking as a condition of
the resumption of work thereat,
by reason of the circumstance that the said
ROBERT CHARLES DOBSON......".

The same four circumstances are again set out. The relevant parts of all informations in the third group are similar, although different persons are referred to, and different circumstances may be alleged.

8. The first point taken by counsel for the defendant concerned the manner in which each information was signed. The Union is named as prosecutor in the title to each proceeding, and each information recites the Union as having appeared before the Deputy District Registrar and as having informed him of the alleged offence. The signature on each information is "R.M. Richardson". It appears immediately above the words "Signature of Prosecutor".

9. By O.49 r. 1(1) of the Federal Court Rules, a prosecution for an offence is required to be commenced by summons upon information. Order 49 r.1(2) provides, "The person bringing the prosecution shall be called a prosecutor, and the person against whom the prosecution is brought shall be called a defendant." Order 49 r. 2(2) provides "A summons and an information shall be in the forms numbered 51 and 52 in the First Schedule.". The First Schedule to the Federal Court Rules contains a form 52 in the following terms:

" INFORMATION FOR AN OFFENCE
(Order 49, rule 2 and
Order 4, rule 16)
At the time and place specified below (name of
prosecutor) of (address of prosecutor) in the
State of appears before (name
of Registrar) (description of Registrar) and
informs the said (name of Registrar) that on
(Date and place of offence)
(Name and address of defendant) did, (or
failed to do)
(Set out details of offence and specific
description of legislation creating the
offence)
...............................
(Signature of Prosecutor)
Time: (Date and time prosecutor appears before
Registrar).
Place:(Address of Court)
Signed by the abovenamed prosecutor before me
-
Date e.g. 7 May 19 . Registrar."

The argument focussed on the words "(Signature of Prosecutor)" and the words "Signed by the abovenamed prosecutor before me -".

10. There can be no doubt that, as a general rule, where a statute requires the signature of a person, an agent may sign for that person. In R. v. Justices of Kent (1873) LR 8 QB 305, at p 307 Blackburn J. said:

"No doubt at common law, where a person
authorises another to sign for him, the
signature of the person so signing is the
signature of the person authorising it;
nevertheless there may be cases in which a
statute may require personal signature."

This principle has been followed in a number of cases: see Re Whitley Partners, Limited (1886) 32 Ch D 337, Equity Trustees Executors & Agency Co. Ltd. v. Harston (1908) VLR 23 and London County Council v. Agricultural Food Products Ltd. (1955) 2 QB 218.

11. Cases in which statutes have been held not to permit signature by an agent include Hyde v. Johnson [1836] EngR 695; (1836) 2 Bing (NC) 776, in which it was held that a particular statute requiring signature was to be read together with the statute of frauds, which made express provision for signature by agents where that was appropriate. In Re Prince Blucher; Ex parte Debtor (1931) 2 Ch 70, it was held that the words "signed by him" in a statute dealing with bankruptcy required the personal signature of the debtor.

12. Where it is contemplated that a corporation may sign a document, it is recognised that signature by a servant or agent is necessary. An artificial legal personality has no hands with which to sign, and can only sign by the hand of a natural person. See Equity Trustees Executors & Agency Co. Ltd. v. Harston (1908) VLR 23, at pp 28-31, City of Melbourne v. Holdenson and Nielson Fresh Foods Pty. Ltd. (1959) VR 626, at pp 630-632 and London County Council v. Agricultural Food Products Ltd. (1955) 2 QB 218. In the present case, it was conceded by counsel for the defendant that the Union, being a registered organization under the C. & A. Act, and therefore a body corporate by virtue of s.136 of the C. & A. Act (see Williams v. Hursey [1959] HCA 51; (1959) 103 CLR 30, at p 52 in the judgment of Fullagar J.), is unable to sign except by the hand of a natural person.

13. Reference should also be made to reg. 156 of the Conciliation and Arbitration Regulations. The relevant parts of that regulation are:

"156. Except where otherwise provided by
these Regulations...if any document is
required by the Act...to be taken out,
made or signed or may be taken out,
made or signed,...by
any...organization...that document may
be taken out, made or signed...on
behalf of that...organization... -
(a) ......
(b) in the case of an
organization...by a person
thereunto duly authorized by, or
in accordance with the rules of
the organization..."

To the extent to which s.191(2) of the C. & A. Act makes an information a document either required to be taken out, made or signed (a question discussed later in these reasons for judgment), or which may be taken out, made or signed, reg. 156 operates to permit an information to be signed by a servant or agent of the organization, authorized by or in accordance with its rules.

14. Counsel for the defendant was prepared to assume, for the purposes of argument, that Mr. Richardson was duly authorised to sign on behalf of the Union. Counsel for the Union sought to go further, and to prove Mr. Richardson's authority. He relied on affidavit evidence, and on a certified copy of the rules of the Union and a certificate of a Deputy Industrial Registrar, tendered pursuant to s.155 of the C. & A. Act. The evidence disclosed that Mr. Richardson was elected to the position of Southern District Secretary in the Queensland branch of the Union on 6th September 1985. Rule 53(1) of the rules of the Union provides for an election in every fourth year for that position. Mr. Richardson has continued to hold that position. By virtue of rule 49 of the rules of the Union, the holder of that position is a member of the Committee of Management of the Queensland branch, and also of the Branch Executive, which administers the business of the branch between meetings of the Committee of Management. Under rule 51, the functions of the Branch Executive are "to administer the rules for the benefit of the members, to carry out the policy of the Union to deal with all matters and transact such business as may arise, and endeavour to carry out the objects of the Union." On 10th December 1987, at a meeting of the Branch Executive, a decision was taken to institute these proceedings. On 24th December 1987, Mr. Richardson attended at the office of the Deputy District Registrar, with the solicitor for the Union, and signed the informations in the presence of Mr. Allen, a Deputy District Registrar of the Court.

15. Counsel for the Union relied on rule 33(2) of the rules of the Union, as the source of Mr. Richardson's authority. That provision is as follows:

"The Federal Secretary shall be the officer to
sue and be sued on behalf of the Union but
within the limits of the respective Branches
any officer of the Union as defined by the
Federal or Branch Rules, or any member of the
Committee of Management or Branch Executive of
a Branch or by any other person if such person
is duly authorised by the Federal Council or
Executive or Committee of Management or Branch
Executive of a Branch who is resident within
the area of the Branch in which the cause of
action arises, may, on behalf of the Union,
sue or prosecute or initiate legal proceedings
of any kind against any person, firm or
corporation or other body, in any court of
competent jurisdiction, for any cause arising
within the Branch in respect of which the
Union might or could sue or prosecute or
initiate proceedings, and for such purpose may
sign any application, affidavit, declaration,
information or other document necessary to
initiate, carry out or give effect to such
proceedings."

It may be seen that rule 33(2) gives to a member of the Committee of Management or Branch Executive of a branch power "on behalf of the Union" to sign any document necessary to initiate proceedings. The question which arises is whether such a provision gives authority to such a person to initiate proceedings in the name of the Union, or whether it gives authority to the person to represent the Union in his or her own name. In my view, the former is the case. Regulation 115(1)(d)(vi) of the Conciliation and Arbitration Regulations, in conjunction with reg. 115(2) and s.132(2) of the C. & A. Act, requires that the rules of a registered organization provide for the mode in which documents may be executed by or on behalf of the organization. In my view, rule 33(2) is intended to make such a provision. It is intended that the persons specified as having authority to sign should be entitled to sign for the Union itself, and not merely in their own separate rights.

16. I am therefore of the view that Mr. Richardson had the necessary authority to sign each of the informations. The crucial question is whether he was entitled to sign them in his own name, without reference to the name of the Union. Perhaps more accurately, the question is whether the signature of Mr. Richardson in his own name, with authority to sign on behalf of the Union, was the "signature of the prosecutor", for the purposes of fulfilling the requirement of form 52 in the First Schedule to the Federal Court Rules.

17. On this issue, counsel for the defendant argued that Mr. Richardson was obliged to write something to indicate that he was signing on behalf of the Union, before his signature could be that of the Union. Heavy reliance was placed on certain passages in London County Council v. Agricultural Food Products Ltd. (1955) 2 QB 218. At p 222, Denning L.J. said:

"In the ordinary way, when a formal document
is required to be "signed" by a person, it can
only be done by that person himself writing
his own name upon it, or affixing his own
signature upon it with his own hand,...but
there are some cases where a man is allowed to
sign by the hand of another who writes his
name for him."

At pp 223-224, Romer L.J. said:

"It is established, in my judgment, as a
general proposition that at common law a
person sufficiently "signs" a document if it
is signed in his name and with his authority
by somebody else;"

At p 225, Parker L.J. quoted a passage from Stroud's Judicial Dictionary, 3rd ed. vol. 4, p 2783, with approval:

"Speaking generally, a signature is the
writing, or otherwise affixing, a person's
name, or a mark to represent his name, by
himself or by his authority...with the
intention of authenticating a document as
being that of, or as binding on, the person
whose name or mark is so written or
affixed...".

It was said that these passages showed that the only acceptable method by which an agent can sign is to write the name of the principal. That proposition was not, however, at issue in London County Council v. Agricultural Food Products Ltd. (1955) 2 QB 218. In that case, the question was whether an agent who had written only the name of the principal, with nothing to indicate that it had been written by an agent, had sufficiently signed the document concerned. Positive statements as to the manner in which an agent may sign are not to be taken as exhaustive on that question. The passages to which counsel for the defendant referred do not contain negative statements to the effect that an agent can sign in no other way than that specified.

18. Indeed, the proposition that an agent cannot sign in the agent's name alone is not to be found in any authority. It does not appear from reg. 156 of the Conciliation and Arbitration Regulations, which simply provides that a document may be signed by a person duly authorised. The negative proposition does not emerge from Deputy Commissioner of Taxation v. Vermont Chemical and Seed Pty. Ltd. (1976) 26 FLR 351. That case concerned an information, purportedly laid by or on behalf of the Deputy Commissioner of Taxation, one Leo Thomas Fitzgerald. At the foot of the information the words "Leo Thomas Fitzgerald" appeared as printed, followed by the words "by J. Hourigan", in handwriting. It was held that the printed words did not constitute a signature, and that there was no evidence that the person who signed "J. Hourigan" had any authority to sign on behalf of the Deputy Commissioner of Taxation or Leo Thomas Fitzgerald. No conclusion was reached as to whether a simple signature "J. Hourigan" would have been sufficient.

19. As I have pointed out, in Hyde v. Johnson [1836] EngR 695; (1836) 2 Bing (NC) 776, the agent had signed in his own name alone, but the case turned on the inability of the principal to sign by an agent at all under the statute in question. This was recognised clearly in Re Whitley Partners Limited (1886) 32 ChD 337, at p 339 in the judgment of Cotton L.J., and in Equity Trustees Executors and Agency Co. Ltd. v. Harston (1908) VLR 23, at p 29. It is perhaps significant that neither of those cases contains any statement as to the inability of an agent to sign in his or her own name.

20. There are cases which suggest that an agent signing a contract in the agent's own name, with authority to do so on behalf of the principal, can bind the principal to the contract. See Graham v. Musson [1839] EngR 791; (1839) 5 Bing (NC) 603 and Heard v. Pilley (1869) LR 4 Ch App 548. It should be noted that neither of these cases turned on the law relating to undisclosed principals.

21. In McRae v. Coulton (1986) 7 NSWLR 644, the New South Wales Court of Appeal was asked to hold that London County Council v. Agricultural Food Products Ltd. (1955) 2 QB 218 gave rise to a rigid principle that an agent signing in the name of a principal was bound to write the principal's name first. This argument was rejected. At p 666, Hope J.A., who delivered the judgment of the Court of Appeal, said:

"I would accordingly doubt very much the
inflexibility of any principle that where a
statute or other instrument requires a
signature but a signature by an agent is
permitted by the principle I have discussed,
the agent must first write his principal's
name."

In that case, a number of applications for a joint water supply scheme were signed with the name of a firm of solicitors, under which were written the words "Solicitors for and on behalf all applicants per", followed by a signature. This was held to be sufficient to satisfy the requirements of a form which required "signatures of all applicants".

22. At a late stage in argument, reference was made to one case which is nearly in point. In Erceg v. Erceg (1981) 2 NZLR 214, a question arose whether a notice of appeal from a court of summary jurisdiction to the High Court of New Zealand was valid when signed in the name of the appellant's solicitors alone. The legislation prescribing the appropriate form contained the words "signature of appellant". It had been held in a previous case that the requirement of the form was not satisfied by a signature in the name of a solicitor or firm of solicitors alone. Thorp J. disagreed. He held that signature by an appellant's solicitor in the solicitor's name was sufficient. Counsel for the defendant in the present case sought to distinguish that case on the basis that it related to an appeal, and not to the institution of a criminal proceeding, as does the present case. He also drew attention to the provision of the relevant New Zealand legislation, requiring that a notice of appeal be in the form prescribed, or in a form "to the like effect". Those words do not appear in the Federal Court Rules; rather, O.49 r.2(2) requires that an information "shall" be in the prescribed form. Further, s.38(1) of the Federal Court of Australia Act 1976 requires that the practice and procedure of the Court "shall" be in accordance with rules of Court made under the Act.

23. Undoubtedly, the question whether a particular form of signature is sufficient to satisfy a statutory requirement is one of construction of the particular statute. In the present case, the question is not whether the provisions of the Federal Court Rules are mandatory in requiring a "signature of the prosecutor". The question is whether a signature of the prosecutor's agent, in the agent's own name, is a signature of the prosecutor. The real importance of Erceg v. Erceg (1981) 2 NZLR 214 is that it shows that there is no principle that, where an agent may sign, the agent cannot sign in his or her name alone.

24. There is no sound policy reason for taking a technical view on this question. The provisions of the rules are, in a sense, enabling provisions. They enable the commencement of proceedings, and should therefore be as free from technical requirements as possible. Counsel for the defendant sought to argue that informations in the form of those before the Court would leave their recipient in doubt as to who was the prosecutor. I reject this argument. On the face of each information, the Union is clearly named as the prosecutor in the heading, and as the informant in the body of the document. I also reject the argument that to allow informations in that form is to assist unauthorised persons to commence proceedings in the names of others. In any proceeding, lack of authority to commence the proceeding in the name of the initiating party can always be relied on to vitiate the proceeding. It is no harder for an unauthorised person to sign in the name of another than it is to sign in his or her own name.

25. I therefore hold that, in each of the informations before the Court, the signature "R.M. Richardson" is the signature of the prosecutor, for the purposes of satisfying the requirement in form 52 in the First Schedule to the Federal Court Rules.

26. It must be recognised that the law is not abundantly clear on the point. In case I have taken a wrong view, I should also proceed to consider what the result would be if the signature "R.M. Richardson" were not the signature of the prosecutor. Counsel for the defendant argued that the result of that view was that each information was a nullity, and that the Court had no jurisdiction to proceed to hear any of the charges.

27. The jurisdiction of the Court comes from a series of statutory provisions. The first is s.19(1) of the Federal Court of Australia Act 1976, which provides:

"19(1) The Court has such original
jurisdiction as is vested in it by laws made
by the Parliament."

Section 191 of the C. & A. Act provides as follows:

"191(1) A person who has committed an offence
against this Act or the regulations may be
charged accordingly before the Court and the
Court may impose the penalty provided by this
Act or the regulations in respect of that
offence.
191(2) Proceedings before the Court under
this section may be instituted by summons
issued upon information, without indictment."

In s.4(1) of the C. & A. Act, the phrase "The Court" is defined as meaning the Australian Industrial Court. By s.118A(1), however, the jurisdiction and powers expressed to be vested in or exercisable by the Australian Industrial Court became vested in and exercisable by this Court, and a reference in the C. & A. Act to the Court (other than in certain specified sections) is required, in relation to, and to matters arising out of, that jurisdiction or those powers, to be read as a reference to this Court in its Industrial Division. This Court therefore has jurisdiction to hear charges of offences under the C. & A. Act, at least where proceedings upon those charges are instituted by summons issued upon information. The word "information" is not defined in the C. & A. Act. Counsel for the defendant contended that the word "information" has a clear meaning, and that it requires a written form, bearing the signature of the person informing. The notion that there is some strict common law form of information is inconsistent with the decision of the High Court of Australia in Menges v. R. [1919] HCA 37; (1919) 26 CLR 369. In that case, a document which was entitled "indictment", and followed the form of indictment required by legislation of New South Wales, was held sufficient to satisfy a requirement for an "information" in legislation relating to the territory of Norfolk Island. Indeed, at common law, it appears that an information could be laid before a Justice of the Peace without any document at all. In other words, an information could be oral. See R. v. Scott Ex parte Church (1924) SASR 220, at p 232, in the judgment of Poole J. and Ex parte Findlay; Re James (1953) 70 WN (NSW) 115, at p 116.

28. Counsel for the defendant then attempted to argue that form 52 in the First Schedule to the Federal Court Rules had become definitive of what is an "information" for the purposes of s.191 of the C. & A. Act. Section 38(1) of the Federal Court of Australia Act 1976 does give force and effect to the Federal Court Rules. That sub-section, however, is expressed to be "Subject to any provision made by or under this or any other Act with respect to practice and procedure". The provision is, therefore, subject to s.191 of the C. & A. Act. Indeed, it is difficult to accept the proposition that the rule-making power of the Judges of this Court can exclude the statutory right of a litigant to invoke the jurisdiction of the Court. If the information in each of these eighteen proceedings is an "information" within the meaning of s.191(2), then the prosecutor has properly invoked the jurisdiction of the Court. In my view, the documents answer that description.

29. Nor should it be overlooked that s.38(1) of the Federal Court of Australia Act 1976 is expressly made subject to the other provisions of that Act. Section 51(1) provides:

"51(1) No proceedings in the Court are
invalidated by a formal defect or an
irregularity, unless the Court is of opinion
that substantial injustice has been caused by
the defect or irregularity and that the
injustice cannot be remedied by an order of
the Court."

The strictness which might otherwise attend the provisions of the Federal Court Rules is ameliorated automatically by this provision, where any error or omission can properly be described as a formal defect or an irregularity. Sub-s. (2) gives to the Court power to make an order declaring that a proceeding is not invalid by reason of a formal defect or irregularity. It is open to a party to apply under that sub-section to ensure that the proceeding can continue. Such a declaration is unnecessary, however, as sub-s. (1) operates in its own right with respect to every formal defect or irregularity.

30. Counsel for the defendant argued that the signature "R.M. Richardson" in each of these cases amounted to a defect going to jurisdiction, and not merely to a formal defect or irregularity. Standing in the way of that argument is the decision of the Full Court of the Supreme Court of New South Wales in R. v. Painter (1870) 9 NSW SCR 277. In that case, the accused was charged and put on trial on an information which was not signed by the Crown Prosecutor, as required by statute. The absence of a signature was discovered after the close of the prosecution case. The trial judge let the case go to the jury, with the result that the accused was found guilty. He then stated a case for the opinion of the Full Court. The judgment of the Full Court is brief, and is as follows:

"The conviction is not vitiated by the
irregularity. The reason why informations are
signed is to identify the prosecutor; and, if
he prosecutes personally, his signature to the
information exhibited by him does not seem to
be absolutely necessary. At all events, the
prisoner waived the objection by pleading to
the information."

It is to be noted that the complete absence of a signature on an information was described by the Court as an "irregularity". It is also to be noted that such an irregularity was regarded as capable of waiver. This is a clear indication that it did not go to jurisdiction.

31. Some assistance on the question whether a defect goes to jurisdiction is also to be found in Crothers v. Sheil [1933] HCA 42; (1933) 49 CLR 399. In that case, the relevant statute required that any prosecution under it be taken in the name of the Milk Board by the secretary or other authorised officer of the board. An information was laid by an authorised officer of the board, but in his own name. At pp 407-408, Rich J., with whom the other members of the Court concurred, rejected the proposition that the commencement of proceedings in the wrong name was a matter going to jurisdiction. Counsel for the defendant endeavoured to rely on R. v. Nottingham Justices; Ex parte Brown (1960) 1 WLR 1315 as authority for the proposition that a defect in an information deprives a court of jurisdiction to try a charge of an offence. That case, however, concerned an information disclosing an offence not known to the law; its subject matter should have been found in a civil complaint. It is not surprising that a defect of that nature should go to jurisdiction.

32. In my view, at worst, the signature, "R.M. Richardson" on each of the informations in the present cases is no more than a formal defect or irregularity. No attempt was made by the defendant to establish a case of substantial injustice arising from such defect or irregularity. In reply, counsel for the defendant did attempt to rely upon the trouble and expense to which the defendant had been put to prepare to defend itself against the charges. The point with respect to signature could have been taken very much earlier, however. The defendant has been content to attend by counsel a number of directions hearings, and to request a number of orders in the proceedings. It cannot claim substantial injustice arising from the late stage at which it has taken the point.

33. I am therefore of the view that, even if the signature "R.M. Richardson" is not the signature of the prosecutor for the purposes of form 52 in the First Schedule to the Federal Court Rules, the proceedings are not thereby invalidated.

34. The defendant's second point related to the content of the informations, and to alleged inconsistencies between them.

35. The argument as put was that the Deputy District Registrar had not discharged properly his duty to receive and examine the informations before issuing the summonses. Much reliance was placed on cases relating to informations laid before justices of the peace. In particular, counsel for the defendant referred to Ex parte Qantas Airways Ltd.; Re Horsington (1969) 14 FLR 414, a case which involved an appearance of bias on the part of a justice of the peace before whom an information was laid, on the ground that the justice of the peace was employed by the registered organization whose Federal Secretary was the informant, and was a subordinate of the Federal Secretary. Reference was also made to Electronic Rentals Pty. Ltd. v. Anderson [1971] HCA 13; (1971) 124 CLR 27, especially at pp 44 and 45 in the judgment of Windeyer J. That case involved similar allegations of bias. On the footing of these cases, counsel for the defendant contended that the Deputy District Registrar was obliged to consider all of the informations, separately and together, for the purpose of determining whether they disclosed sustainable cases. It was put that the fact that the Deputy District Registrar had issued a summons upon each information should lead to the conclusion that he had not given the required consideration.

36. The detailed judgment of Fitzgerald J. in Linehan v. Australian Public Service Association (Fourth Division Officers) [1982] FCA 198; (1982) 66 FLR 90 is instructive as to the respective functions of an information and summons in respect of an alleged offence under the C. & A. Act. At pp 97-98, his Honour issued a warning about reliance upon decisions under other statutes. The passage repays reading. At its conclusion, his Honour said:

"Unqualified reliance upon decisions relating
to prosecutions in inferior Courts accordingly
tended to introduce what seemed to me to have
been irrelevant complications into the debate
and to have led, at times, to unwarranted
further assumptions, including an assumption
that jurisdiction was in doubt in these
proceedings."

37. It is curious that there appears to be no legislative prescription of the duties of a registrar of this Court when dealing with an information. Indeed, the only reference to any power of a registrar to deal with an information appears to be found in the form of information prescribed in form 52 in the First Schedule to the Federal Court Rules. No doubt s.37 of the Federal Court of Australia Act 1976 operates to require the signature of a registrar, district registrar or deputy district registrar on each summons issued from the Court. A registrar of the Court does not have general judicial powers such as those commonly exercised by justices of the peace in earlier times. Even in the case of a justice of the peace, Walters J. in Lang v. Warner (1975) 10 SASR 289, at p 296 made it perfectly clear that a justice of the peace was not "called upon to decide whether there is good cause to take" an information. To hold that a registrar of this Court has a duty to decide whether an informant could prosecute successfully on an information laid before him or her might be to raise constitutional difficulties.

38. At all events, it is plain that the question of the powers of the Deputy District Registrar in the present cases was not at the heart of the matter. The informations are either good or bad. If they are good, the Deputy District Registrar acted properly in issuing a summons on each one. If they are bad, the Court must dismiss them, irrespective of whether the Deputy District Registrar has issued summonses.

39. It should also be pointed out that the defendant led no evidence as to the nature of the consideration given by the Deputy District Registrar to the informations. What is known, from the evidence led on behalf of the Union, is that the Deputy District Registrar did enquire of Mr. Richardson whether he was an officer of the Union and whether he was authorised to lay the informations on behalf of the Union, and received affirmative answers from Mr. Richardson. The Deputy District Registrar also made enquiry of the Union's solicitor as to the general nature of the proceeding. Further, he did not seal the summonses with which he was then provided instantly, but retained them for consideration, and returned them to the solicitor in sealed form later in the day. It is clear, therefore, that at least the Deputy District Registrar had the opportunity to give proper consideration to each information. It would be wrong to conclude, in the absence of evidence, that his consideration of the informations was not proper. The possibility exists that the Deputy District Registrar considered all of the arguments which counsel for the defendant put to the Court in respect of the informations, and reached the wrong conclusion about them. To reach a wrong conclusion could not be said to involve a dereliction of duty.

40. Even if the Deputy District Registrar had failed to give proper consideration to the documents, a question would arise as to the consequences of such failure. In reliance upon the cases dealing with bias in justices of the peace, counsel for the defendant contended that such a failure would vitiate the receipt by the Deputy District Registrar of the informations, and deprive the Court of jurisdiction to hear the charges. It is easier to see how the appearance of bias in a justice of the peace could vitiate the exercise of his or her functions with respect to an information than it is to see how a failure to give sufficient consideration to an information by a Deputy District Registrar of this Court could turn a resultant proceeding into a nullity. Counsel for the defendant conceded that the issue of a summons was not a matter of great importance. No doubt this concession was wise, in the light of the decision in Linehan v. Australian Public Service Association (Fourth Division Officers) [1982] FCA 198; (1982) 66 FLR 90. The defendant has appeared before the Court on a number of occasions on directions hearings in these proceedings, and has not protested the invalidity of the proceedings until a late stage. In my view, even if there were a failure by the Deputy District Registrar to give proper attention to the informations, the result is that the proceedings are still on foot.

41. It remains to consider whether the informations disclose offences known to the law, and whether they are otherwise bad for inconsistency, both within each information and between informations. In this respect, three complaints were made on behalf of the defendant.

42. The first argument was that an inconsistency exists between the informations in the first group and those in the second and third groups. This inconsistency arises from the fact that the first group of informations all allege dismissals of the persons concerned on 3rd April 1987. The informations in the second and third groups allege employment of those persons by the defendant in May 1987. It was argued that, if the persons concerned were dismissed in April, they could hardly be employed in May. In the absence of evidence, however, this proposition cannot be sustained. It is possible, for instance, that persons might have been dismissed in April, and re-employed shortly thereafter, so as to be in employment in May. Even if that were not so, the charges might be treated as alternatives. The prosecutor may say that there is evidence supporting the proposition that people were dismissed from their employment on 3rd April. If the Court should find that no such dismissals occurred, there may be evidence which would lead to the conclusion that other offences were committed with respect to those persons in their continuing employment in May. There is no bar to a prosecutor charging offences as alternatives. Perhaps the most common example of such charges is the practice of charging stealing and receiving or handling of stolen goods in the alternative. Further, it is wrong to suggest that the validity of an information can be determined by looking at another information laid at or about the same time. The defendant's argument is that, because there are inconsistencies between the first group of informations and the second and third groups of informations, all of the informations are bad. In other words, each is bad because of inconsistency with another. There is no reason, however, why the first group should be considered bad, even if the second and third groups are. The inconsistencies suggested are not reciprocal.

43. The second ground for complaint concerns the informations in the second group. It was argued that it is impossible to injure a person in his or her employment by excluding him or her from being a regular daily employee, or by refusing or failing to re-engage him or her as a regular daily employee. A person could not be both in employment and refused engagement as an employee, it was said. Again, the argument makes certain assumptions about what the evidence might be. There is no reason, other than some prohibition under a statute or award, why a contract of employment should not provide that the employee only works on days when required by the employer. Such an arrangement does not necessarily lead to the conclusion that a new contract of employment comes into existence on each day on which the employee works. See Australasian Meat Industry Employees' Union v. Sunland Enterprises Pty. Ltd. (Federal Court of Australia, Gray J., 28th April 1988, unreported) at pp 15 and 16. If such a continuing contract, with a right to engage for actual work from time to time, existed, it might be said that a person who was not engaged at all was injured in his or her employment by being excluded from being a regular daily employee, or by refusal or failure to re-engage as a regular daily employee. The determination of this issue must await the evidence.

44. The third complaint was in respect of the third group of informations. It was similar to the second complaint. It was said that each of the persons named could not be prejudiced in his or her employment by being excluded as a regular daily employee, or by a refusal or failure to re-engage him or her as a regular daily employee. Similar considerations to those governing the second complaint apply in this respect. In addition, account must be taken of the definitions of "employee" and "employer" in s.4(1) of the C. & A. Act, particularly the reference in each case to "any person whose usual occupation is that of" employee or employer. In cases where a contract of employment is made on a daily basis, it might be said that the parties to such a contract are persons whose usual occupations are those of employer and employee. Nothing in s.5 of the C. & A. Act discloses a clear intention to exclude the definitions of employee and employer. It is plainly possible for someone who usually employs someone else to alter the latter's position to his or her prejudice by refraining from such employment. In Linehan v. Northwest Exports Pty. Ltd. [1981] FCA 199; (1981) 57 FLR 49, at pp 61-62, it was held that a person whose contract of employment was terminated at the end of each day had his position altered to his prejudice when his regular employer refused to continue engaging him from day to day.

45. Counsel for the defendant drew attention to s.144A(5) of the C. & A. Act. That sub-section contains offences phrased in similar terms to those in s.5 of the C. & A. Act. It contains in addition, an offence of refusing to employ a person by reason of a named circumstance. It was argued that a comparison between that provision and s.5 of the C. & A. Act showed an intention that a refusal to employ should not be an offence under s.5. Clearly there are differences between the two provisions. The mere fact that an offence of refusing to employ appears in s.144A(5), however, is not to be taken as establishing that the offence of altering the position of a person whose usual occupation is that of an employee to his or her prejudice is not to be an offence.

46. For these reasons I held that it had not been shown that the informations disclose no offence known to the law, or are otherwise bad, or were received and dealt with improperly by the Deputy District Registrar.

47. For all of these reasons, I ruled that the defendant's motion should be refused, and that the proceedings should be continued.