Electronic Rentals Pty Ltd v Anderson [1971] HCA 13; (1971) 124 CLR 27 (5 May 1971)

HIGH COURT OF AUSTRALIA

ELECTRONIC RENTALS PTY. LTD. v. ANDERSON [1971] HCA 13; (1971) 124 CLR 27

Summary proceedings

High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Summary proceedings - Information - Not read by justice of peace - Issue of summons - Discretion - Whether evidence of justice as to state of mind admissible - Information laid before justice being officer of same department of government as informant - Propriety - Interest - Justices Act, 1902-1966 (N.S.W.), ss. 52, 60,62.*

HEARING

Sydney, 1970, December 9, 10.
Melbourne, 1971, May 5. 5:5:1971
APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

DECISION

1971, May 5.
The following written judgments were delivered :
BARWICK C.J. I have had the advantage of reading the reasons written by my entirely with my brother's reasons and do not desire to add anything to them. (at p30)

McTIERNAN J. In my opinion the judgment of the Court of Appeal of the Supreme Court of New South Wales in these matters was correct and these are not cases in which special leave to appeal should be granted. (at p30)

MENZIES J. There were heard together five applications for special leave to appeal from orders of the Court of Appeal of the Supreme Court of New South Wales refusing applications for prohibition to prevent the further hearing of five informations, each alleging an offence by an applicant under s. 86 (2) of the Factories, Shops and Industries Act, 1962, as amended (N.S.W.). (at p30)

2. In each case grounds for prohibition relied upon were as follows :

"1. 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.
2. By reason of the matters stated in paragraph 1 above, the
receiving of the information and the issuing of the
summons thereon invalidated the information and the
summons and accordingly the Acting Chief Industrial
Magistrate has no jurisdiction to hear the charge."

In three cases there was an additional ground, viz :

"The justice of the peace before whom the informations
were laid was disqualified by interest in that he was an officer
of the same Department, to wit, the Department of Labour
and Industry, as the informants."

I will dispose of this additional ground first. (at p30)

3. To succeed upon this ground the applicants would have to maintain successfully that a justice of the peace, being a civil servant in a government department, is ipso facto disqualified by interest from accepting an information from another civil servant employed in the same department and from issuing a summons thereon. So it would be that if one officer in the Department of Justice were to lay an information before another officer in that Department, be he a Chamber Magistrate, a Clerk of Petty Sessions or a Justice of the Peace, there could be no valid proceedings upon the information. Such a general proposition is obviously insupportable, and I agree with all the members of the Court of Appeal in rejecting it. These are not matters in which it is possible to draw a line, having regard to all the circumstances of the case, to prevent injustice or the appearance of injustice. The proposition to be maintained, which is both simple and wrong, is that mere holding of office in the same department as the informant automatically disqualifies. (at p31)

4. Turning now to the other grounds, it is to be observed that it was not in issue that the informations were laid before the justices concerned. The ground for prohibition was that, an information having been laid, each justice "failed to exercise a judicial discretion in the process of receiving the information and the issuing of a summons thereon". That is the ground with which I propose to deal. In support of this contention depositions taken upon the hearing of the informations before a magistrate were exhibited, which showed, in substance, that the justices who had received the informations and issued the summonses had given evidence to the effect that they had not read, or understood, or considered, the informations laid before them, and had, in fact, in some instances, thought that they were doing no more than witnessing signatures. (at p31)

5. These depositions, in my opinion, provided no basis for the Supreme Court prohibiting the further hearing of the informations. (at p31)

6. In the first place, in the Supreme Court the depositions were no more than evidence of what had happened at the hearing of the informations before the magistrate. They were not evidence of what the justice of the peace had or had not done at the time of signing the informations and issuing summonses thereon. (at p31)

7. In the second place, the magistrate did not lose jursidiction to hear and determine the information simply because of evidence given before him by a justice that he had failed in his duty. Suppose the magistrate had said - as well he might, having regard to what appeared upon the face of the informations and summonses - that he was satisfied that the justice was mistaken in the evidence which he had given and that he could not have thought he was merely witnessing the signature of someone else. Could he not have continued with the hearing? (at p31)

8. Finally, it being conceded that informations had been laid, it does appear to me that what was attempted at the hearing before the magistrate was to prove from the mouth of each justice that his mind had not gone with his action in accepting the informations and issuing the summonses. I do not say that the contention that a proceeding was a nullity because a justice had not exercised his office because he acted mistakenly or improperly in the exercise of his functions would not, in a proper case, raise a matter of great importance in the administration of the law. If a justice of the peace, before whom an information has been laid, can be called upon to give evidence upon the hearing of the information to prove that he had not exercised a judicial discretion in issuing a summons, so, I suppose, could a judge of any inferior court be called in proceedings in another court to prove that he had not exercised a judicial discretion entrusted to him to nullify proceedings based upon his act. Thus, were a licensed victualler to sue for liquor supplied, it would appear to me to be an important question whether the defendant could call the magistrate who had granted the licence to prove that he had failed to exercise his judicial discretion in doing so. I concede, therefore, the importance of the general proposition for which the applicants contend, although, like the Justices of the Supreme Court, I doubt its soundness. However, I am not in doubt that the application should be refused. These are just not cases in which the important matter, to which I have referred, could be satisfactorily determined. (at p32)

9. As I am satisfied that, if special leave were to be granted, the appeals would fail because this Court could not, upon the material which would be before it, grant prohibition, it is my opinion that the applications should be refused. (at p32)

WINDEYER J.

Electronic Rentals Pty. Ltd. v. Anderson and Williams.
Electronic Rentals Pty. Ltd. v. Bainbridge and Williams. (at p32)

2. These applications for special leave to appeal from decisions of the Supreme Court of New South Wales were heard last year. The applications were then refused, reasons to be given later. (at p32)

3. The Supreme Court by majority - Jacobs and Moffitt JJ.A., Asprey J.A. dissenting - discharged two orders nisi for prohibition that had been obtained by the present applicant, Electronic Rentals Pty. Ltd., by which it was sought to restrain the informants, Anderson in the one case and Bainbridge in the other, both of them officers of the New South Wales Department of Labour and Industry, and Mr. T. G. Williams, a stipendiary magistrate, from proceeding further on informations alleging that the applicant had committed breaches of the Factories, Shops and Industries Act, 1962 (N.S.W.). It was intimated for the magistrate, who was duly served, that he did not wish to take any part in the argument. The respondents who were heard are the two informants. (at p33)

4. 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. (at p33)

5. 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. (at p33)

6. In the first case the information was said to have been laid before a justice of the peace, Mr. G. Perusco, who is a tax consultant of Wollongong. He gave evidence that he knew the informant Anderson as an inspector of the Department of Labour and Industry at Wollongong; that he had called on him and asked him to witness his signature to documents he presented. Anderson, he said, signed the documents and then he, Perusco, added his signature. When asked whether there was any conversation between Anderson and himself as to the nature of the documents he said: "I do not think so. He might have said 'would you witness some signatures, we have to issue some summonses'." The documents on which Mr. Perusco put his signature were, it is said, a written information signed by Anderson and a summons. He said that he did not read them, and that he did not have any other conversation about them with Anderson. He may have been mistaken in saying that Anderson and he signed both the information and the summons, as his signature was not required on the information and Anderson's signature would have been out of place on the summons. If his memory of what occurred was accurate Mr. Perusco's conduct seems to have been at least perfunctory; and that of Anderson, who gave no evidence on the point, seems to have been reprehensible, for he is said to have misled the justice as to what was required of him in a matter in which he had a serious duty to perform. (at p34)

7. In the other matter the information was witnessed by a Mr. D. Paxton, a justice of the peace who is a public servant in the Department of Child and Social Welfare carrying out his duties in Dubbo. His evidence before the magistrate was that the informant Bainbridge, whom he had not previously met, had called on him and asked him to witness his signature on documents, but had told him nothing about them except that they were legal documents. He put his signature on what were in fact a written information and a summons. He said that he had no idea of their contents: that he did not read them at all. The information is expressed to have been laid in Sydney, whereas in fact it and the summons were put before Mr. Paxton in Newcastle. (at p34)

8. 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. (at p35)

9. After the justices had given their evidence the magistrate by consent adjourned the further hearing of each case. The informants had given no evidence, and the magistrate had made no finding as to what had occurred before the justices. However, the applicant obtained in the Supreme Court orders nisi for writs of prohibition on the ground that the magistrate had no jurisdiction to hear the matters because the justices had acted improperly. The only evidence that the applicant put before the Supreme Court in support of their applications for writs of prohibition was the depositions of the proceedings before the magistrate. These depositions were received in the Supreme Court as evidence of what had occurred before the magistrate. That they were : but it appears that they were regarded as proof too of the facts to which the witnesses had deposed. That they were not. It seems that counsel for the informants did not in the Supreme Court contest the correctness of the justices' evidence in point of fact because his contention was simply that, true or not, it was inadmissible. He is not I think to be taken to have admitted that it was true. What witnesses, not parties to the proceedings, said before the magistrate is not in other proceedings evidence of the facts they stated. The application for prohibition in the Supreme Court ought therefore I think to have been refused on the ground that the facts on which the applicant relied were not there proved. That is enough to dispose of this application for special leave to appeal. I could leave the matter there : but as I would not wish it to be thought that I agree with the approach that the majority of the learned judges in the Supreme Court took, or with the conclusion that they reached on the facts as they assumed them to be, I shall say more. (at p36)

10. 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 (1872) LR 5 HL 418 . 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 (1868) LR 3 Ex 306 . 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 (1870) LR 5 Ex 221 . 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. (1872) LR 5 HL, at p 434 where he said :

"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 (1872) LR 5 HL, at pp 457-458 :

"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 (1872) LR 5 HL, at p 462 :

"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. (at p38)

11. I pass now to other matters that in the course of the argument were discussed on the assumption that we should approach the question as if the evidence given before the magistrate had been given before the Supreme Court. This, as I have said, is in my opinion an erroneous approach : nevertheless some remarks are I think called for. (at p38)

12. In the editions of Paley on Summary Convictions that were published before the alteration of the statute law in England in 1952, it is said :

"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 (1960) 1 WLR 1315 ; (1960) 3 All ER 625 . 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". (at p39)

13. Section 60 of the Justices Act provides that whenever an information is laid before a justice, against any person, he may issue his summons for the appearance of such person. He is not bound to issue a summons. Before doing so he should consider the information to see what it alleges. (at p39)

14. "A summons", said Lord Goddard C.J., "is the result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons" : R. v. Wilson ; Ex parte Battersea Borough Council. (1948) 1 KB 43, at pp 46-47 . This does not mean that the issuing of a summons is a judicial act in the same sense as is an adjudication to determine the rights of parties. Probably it would be better described as an administrative or ministerial act, or, as this Court said in Donohue v. Chew Ying [1913] HCA 20; (1913) 16 CLR 364 , as a matter of procedure. But, however described, a justice who receives an information must decide whether or not he should issue a summons. He has a discretion and he must exercise it in a judicial manner. This is well shewn in the learned judgments of the Supreme Court of New South Wales in Ex parte Qantas Airways Ltd ; Re Horsington (1969) 71 SR (NSW) 291 ; 90 WN (Pt 2) 55 . A justice must not arbitrarily refuse to issue a summons. If, without some good and sufficient reason, he refuses to do so after he has received and considered an information or complaint duly laid, mandamus will lie : see e.g. R. v. Scott ; Ex parte Church (1924) SASR 220 . (at p40)

15. "The general rule of common law is that an information, either written or oral, must be laid before a magistrate has jurisdiction to try a criminal charge." Owen J., delivering the judgment of the Supreme Court in Ex parte Findlay ; Re James (1953) 53 SR (NSW) 174, at p 177 took that to be fundamental doctrine as expounded by Jordan C.J. in Ex parte Walker ; Re Goodfellow (1944) 45 SR (NSW) 103, at p 107 . He went on to say that it also emerged from that judgment that :

"Where a person is in fact before a magistrate, and no
matter how he may have come there, he may object that no
information has been laid, in which case he is entitled to go
free unless an information is then and there laid, thus providing
the court with the necessary basis for the exercise of jurisdiction,
but if he makes no objection to the absence of an information
and is convicted, he cannot thereafter complain." (at p40)

16. In each of the present cases the justice had in fact signed a summons. That, it was said, precluded the applicant from questioning whether a supporting information had been laid. In the majority judgment in the Supreme Court their Honours seem to have accepted this, for they said :

"It may well be that a justice may be asked what happened
before him and what was presented to him, but when in his
summons he states that information to a certain effect was
laid before him he cannot later depose that he was unaffected
by that information. It would be quite different if he were
to state in the summons that information was laid before him
when it was never so laid."

I am unable to agree with that, if it means that what appears in a document in form a summons signed by a justice must be taken to be true although he did not read that document and did not know what it was that he signed. I agree, of course, with the second sentence in the above passage : and it seems that it fits this case if the facts be as the Supreme Court assumed them to be, that is to say if the evidence the justices gave was taken to be true in fact. But I cannot think that a statement in a summons could ever establish that what was in fact not done must be taken to have been done. A summons does not confer jurisdiction. It is merely a process commanding the accused to attend and notifying him of the charge. In Reg. v. Hughes (1879) 4 QBD 614, at p 625 Hawkins J. put this clearly:

" The information, which is in the nature of an indictment,
of necessity precedes the process; and it is only after the
information is laid, that the question as to the particular form
and nature of the process can properly arise. Process is not
essential to the jurisdiction of the justices to hear and
adjudicate. It is but the proceeding adopted to compel the
appearance of the accused to answer the information already
duly laid, without which no hearing in the nature of a trial
could take place (unless under special statutory enactment)."

I have emphasized the word "duly" in this passage. (at p41)

17. 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 (1911) 1 KB 880 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, [1967] UKHL 2; (1968) AC 58 by Lord Reid (1968) AC, at pp 73-74 and by Lord Upjohn (1968) AC, at pp 104-105 , 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 (1897) 23 VLR 88, at p 93 , 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." (at p42)

18. The requirement, in s. 62, that a summons be under the hand and seal of the justice is not to be disregarded. To be under his hand means, I take it, that it must bear his signature. At common law one person may authorize another to sign a document for him: see London County Council v. Agricultural Food Products Ltd. (1955) 2 QB 218 . But when a document is required by statute to be under a man's hand or signed by him what is ordinarily meant is that he must personally sign it, with his name or his mark, by a pen or by a stamp: Bennett v. Brumfitt (1867) 37 LJCP 25 ; Ex parte Dryden (1893) 14 NSWLR 77 ; Ex parte Durack (1915) 32 WN (NSW) 18 ; Ex parte McQuillan ; Re Priddis (1932) 49 WN (NSW) 87 ; cf. R. v. Burchill and Salway; Ex parte Kretschmar (1947) QSR 249 . So much for "under his hand". Now for the words "and seal". They mean that the seal must be "his", the seal of the justice affixed to the document. Such a seal may be wax, or a wafer, or a rubber stamp or any other impression put on as a seal: cf. R. v. Deputy Recorder of Wolverhampton; Ex parte Director of Public Prosecutions (1951) 1 All ER 627n ; Stromdale & Ball Ltd. v. Burden (1952) Ch 223, at p 230 . But anything that is to be his seal upon a summons must be put there by the justice, or put there by his authority and adopted by him as his seal when he issues the summons. It must be something affixed or added to the document as an incident of its being issued. Neither it nor the signature can be something already printed on a blank form before it was filled in, signed and issued: Reg. v. Cowper (1889) 24 QBD 60, 533 ; Ex parte Dryden (1893) 14 NSWLR 77, at p 78 . (at p43)

19. I interpose here that the authority that justices have to command persons to appear before them by a summons issued in accordance with the statute, after an information duly laid, is not to be likened too closely to originating processes in the superior courts. Judicial writs and citations are there issued in the name of the Sovereign, with the teste of the Chief Justice or other prescribed person, and sealed with the seal of the court. They differ in their histories, their nature and their form, from summonses that a justice of the peace may issue. (at p43)

20. The requirement that the summons be under seal may today seem to be purposeless subservience to an archaic formality. But it is not for a justice of the peace to disregard the express command of Parliament; and, however unimportant the presence of a seal may seem, a lack of it means that a summons does not satisfy the statutory requirement: cf. Wing v. Epsom Urban District Council (1904) 1 KB 798 . The judges in the Supreme Court were thus mistaken in saying that the justices in this case had issued the summonses under their hand and seal. Had they in fact done so, it may be that the question that has arisen would never have arisen. That is because when a justice has to affix his seal to an instrument he is likely to be thereby made aware that what he is doing is exercising his own authority, in a matter of moment, doing something himself as a result of the exercise of his personal discretion. It is this that makes the provisions of s. 62 more than the prescription of an idle formality. Justices of the peace in New South Wales are today called upon to do so much by way of authenticating others' acts, witnessing signatures, taking statutory declarations, administering oaths to the deponents of affidavits and the like, that the special formalities required when they have to perform the more responsible discretionary duties of their office are not unimportant reminders for them. However, the lack of a seal, apparent on the face of the summons, was not noticed by the Supreme Court. In any event it would not be a ground for an appeal because, as I have already said, the jurisdiction of a magistrate depends upon there being an information. It does not depend upon a summons. The invalidity of a summons therefore does not affect the jurisdiction to hear the charge. Davidson J. pointed that out in Ex parte Hughes; Re Moulden (1946) 47 SR (NSW) 91, at p 97 . Moreover, the applicant, a corporation, appeared before the magistrate by counsel: and it well knew what was the offence with which it was charged. (at p44)

21. If the facts be as the Supreme Court took them to be, I would think that what was said, in the judgment of the majority there, for discharging the orders nisi was mistaken. But the facts of what occurred between the informants and the justices were not proved by any evidentiary material submitted to the Supreme Court. Even if they had been, that would not necessarily justify special leave to appeal to this Court. The whole circumstances would have to be considered. It would not be enough that the Supreme Court decision seemed erroneous. Special leave is not given to enable every questionable decision to be examined in this Court. The applicant complains of the decision of the Supreme Court only because it means that this has frustrated its attempt to escape having to answer an accusation that it had broken the law. Those who choose to run away hoping to avoid having to fight another day should be sure that they get to shelter. The applicant sought refuge in a technicality, but it has failed to produce evidence necessary to give it shelter there. (at p44)

22. In my opinion this case was not one for special leave to appeal.

Electronic Rentals Pty. Ltd. v. Slattery and Williams.
Consolidated Appliances Ltd. v. Loves and Williams.
Electronic Rentals Pty. Ltd. v. Harvie and Williams. (at p44)

23. These are three applications for special leave to appeal from decisions of the Supreme Court of New South Wales refusing to prohibit the continuance before Mr. Williams, a stipendiary magistrate, of proceedings on informations alleging breaches by the applicants of the Factories, Shops and Industries Act, 1962 (N.S.W.). These cases were heard in this Court as they were in the Supreme Court, at the same time as two other matters (No. 74 of 1970 and No. 75 of 1970) in which we are now also giving our reasons for declining to grant special leave to appeal. In the present matters, as in the other two, the applicants sought writs of prohibition in the Supreme Court on the ground that in each case the process which initiated the proceedings was invalid. But in these cases, unlike the other two, it is not said that informations were not duly laid, or that the justice of the peace had failed to consider them before he issued his summonses to the applicants. What is said is that the justice, a Mr. Seto, was disqualified to act at all because of circumstances that could create a reasonable suspicion of bias in him. The facts were not firmly established by evidence admissible in these proceedings; but from what appears in the judgments in the Supreme Court, and from what counsel told us from the bar table, I take them to be as follows. The informants are officers of the Department of Labour and Industry. Seto is also an officer of that Department having clerical duties which include those of clerk to the Industrial Magistrate's Court, a court held by a stipendiary magistrate. In the present case written informations were put before Seto; he read them and satisfied himself, by endorsements thereon, that in each case the informant was a person authorized to lay the information. He then issued summonses. (at p45)

24. In Ex parte Qantas Airways Ltd.; Re Horsington (1969) 71 SR (NSW) 291 ; 90 WN (Pt 2) 55 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. (at p46)

OWEN J. I have read and agree with the reasons prepared by my brother Windeyer for refusing special leave to appeal in these cases. (at p46)

ORDER

Special leave refused. Application dismissed with costs.