Devane v Gati [1956] HCA 46; (1956) 95 CLR 174 (17 August 1956)

HIGH COURT OF AUSTRALIA

DEVANE v. GATI [1956] HCA 46; (1956) 95 CLR 174

Industrial Arbitration (Cth.)

High Court of Australia
Dixon C.J.(1), Fullagar(1) and Taylor(1) JJ.

CATCHWORDS

Industrial Arbitration (Cth.) - Award - Binding on partnership - Bound in firm name - Breach of award - Prosecutions against partners in firm - Partners named individually in information - Regularity of prosecution - Clothing Trades Award 1950 - Conciliation and Arbitration Act 1904-1952 (No. 13 of 1904 - No. 34 of 1952), s. 59.

HEARING

Sydney, 1956, August 17. 17:8:1956
APPEAL from the Chief Industrial Magistrate at Sydney, New South Wales.

DECISION

The judgment of the Court was delivered by DIXON C.J.
This appeal is from an order or orders dismissing six informations. The 1904-1952 (Cth.) for breaches of the award called the Clothing Trades Award 1950. (at p175)

2. The defendants named in the informations are Albert Gati and Thomas Sebastian. They in fact carried on business as the Gaty Clothing Co. of 112 King Street, Newtown. By the award of 15th July 1954 a large number of persons was named in the schedule as persons upon whom the Clothing Trades Award was binding according to its terms. Among the persons named was the Gaty Clothing Co. of 112 King Street, Newtown. The two individual partners who formed that company were not expressly mentioned in the schedule. (at p175)

3. When the informations came on for hearing before the court of petty sessions the objection was taken that the defendants could not be proceeded against because in the award only the firm was bound and, further, that the firm was not a separate legal entity. The magistrate gave effect to this objection and dismissed the informations. (at p175)

4. In our opinion the objection was without foundation. It was quite competent for the Court of Conciliation and Arbitration to deal in the firm name with a partnership carrying on business in the firm name. The partners of the firm against which proceedings in the Court of Conciliation and Arbitration were so carried on would be bound by an order or award made naming the firm, that is assuming that in all other respects the court had jurisdiction to bind them by the order or award. It is, of course, true that a partnership is not a separate legal entity. But the firm name is nevertheless a description of the individuals who compose the partnership and it describes them for the purpose of the firm's business. The rule of the common law was that for the purpose of suits and proceedings in the ordinary courts of justice the parties must be named as individual persons and the firm name did not satisfy this requirement, although for many other purposes it is recognized as a collective description. But the rule does not govern the industrial proceedings of the Court of Conciliation and Arbitration. It was perfectly proper for the informant to name them individually in the informations and, indeed, that was the only manner in which they could regularly be prosecuted in the present proceedings. (at p176)

5. The rule which the magistrate applied was inapplicable to the proceedings and accordingly the dismissal was based on an erroneous ground. The informations were not heard on the merits; it is therefore necessary to remit them for hearing. (at p176)

6. The order of the Court will be as follows: - Appeal allowed with costs against the defendants respondents. Order of the court of petty sessions set aside. Informations remitted to the court of petty sessions for rehearing. Costs of the former hearing to abide the order of the court of petty sessions disposing of the informations. (at p176)

ORDER

Order accordingly.