66

Per REAL AND CHUBB JJ.: The power may
be conferred by the local Legislature on itself
under the power and authority from time
to time to make laws altering or repealing all
or any of the provisions of the Order-in-Council
contained in par. 22 of the Order-in-Council
of 6th June, 1859.

Held further that, although The Parliamentary |
Bills Referendum Act of 1908 may be available
for ordinary legislation in regard to which it is
not necessary to alter the Constitution, and
thereby create powers not previously existing,
it is not applicable to an amendment when the
alteration and the creation of a power is neces-
sary, and therefore is not applicable to the above
Bill. In so far as any attempt under The
Parliamentary Bills Referendum Act of 1908 to
alter the Constitution would be futile, an attempt
to submit the above Bill to referendum under
that Act is unauthorised by law.

Quare, whether The Constitution Act Amend-
ment Act of 1908 was such as was required by
law to be reserved for the signification of His
Majesty's pleasure; and whether it was
necessary that s. 33 of The Australian Constitu
tion Act of 1842 should be complied with before
it had any operative effect.

The date of the proposed referendum was
fixed for the same day as the elections of mem-
bers of the Senate and House of Representatives
in the Parliament of the Commonwealth. The
plaintiffs sought a declaration that this was
contrary to s. 4 of The Commonwealth Elections
(War Time) Act of 1917, and invalidated the
proposed referendum. The Attorney-General
objected to the jurisdiction of the Court under
The Judiciary Act, ss. 38A and 40A.

Held, that an objection under those sections
is only valid when it goes either to the whole

cause of action or constitutes a defence to the
whole claim, or to a part so interwoven with
the other parts as to be inseparable therefrom.

Held, that an objection to parties on the
ground that all the members of the Legislative
Council were not joined as plaintiffs should not
prevail.

TAYLOR AND OTHERS v. ATTORNEY-GENERAL
AND OTHERS
F.C. 208

CONSTRUCTIVE DESERTION—

See DESERTED WIVES AND CHILDREN. 1.
CONVERSION—

See WILL. 2.
CONTRACT-Construction-Loan or subsidy-
Advance by Government for development work on
mine-Advance on basis of £1 for £1-Repayment
out of profits-Interpretation-Expressio unius
est exclusio alterius-Rectification.

The defendants were the owners of copper
mines and smelting works, and for many years
mined and smelted copper, winning much
metal from the ground, and establishing and
maintaining a small settlement about their
properties. In 1911, the mines and works
were closed. Application was made for financial
assistance to the Government, and after the
Minister for Mines had received a favourable
report from the State Mining Engineer, the
Government, by Executive minutes, recom-
mended that a loan of £1 for every £1 expended
by the defendants up to £3000 should be
granted for the jurpose of assisting the defend-
ants in further developing their mines, on the
condition that should payable mineral be
discovered the money was to be re-paid, with
interest, as soon as the mines were worked at a
profit. Negotiations were continued, and at the
request of the Minister, the defendants prepared
a draft agreement, which, after reciting the
application for a "loan or subsidy" and the
agreement to advance £3000 on the £1 for £1
basis for the purpose of carrying out the
development work indicated in the State
Engineer's report, stated, inter alia, Clause 6——
"The amount so advanced as aforesaid shall
be repaid to the Government out of the profits
which shall hereafter be derived by or accrue
to the company from the working of the said
mines before the declaration of any dividend,
but shall not be otherwise payable" (certain
items to be taken into consideration in estimat-
ing profits were then stated). The draft was
signed by the Minister for Mines, and on the
assumption of its final completion the work
of development was commenced. Several weeks
later the Under Secretary for Mines suggested
an alteration in Clause 6 by striking out the
words but shall not be otherwise payable,"
and by providing inter alia, that no sale of the

CONTRACT-Continued.

defendants' properties should be made unless
the liabilities under the agreement had been
discharged or unless the purchaser agreed to
pay those liabilities or the defendants agreed to
apply the purchase money in repayment of the
loan. The defendants pointed out that the
proposed amendment would operate to make
the assets of the company liable for the repay-
ment, and that in the event of a winding up
the liquidator would be compelled to provide
for the advance as a debt. This amendment
was not inserted, and Clause 6 was allowed to
stand, but the words " but shall not be otherwise
payable" were not re-inserted. The money
provided by the Government and an equal
amount provided by the company was spent in
accordance with the terms of the agreement.
The company went into liquidation. The
Crown proved for the whole of the money
advanced under the agreement as a debt due.
The liquidator refused to accept the proof
and by agreement between the parties, the
question was referred to the Court, in an action
brought on information by the Attorney-General
against the company and the liquidator, seeking
declarations of right, injunction, and damages,
and the repayment of the money advanced.
The defendants denied liability, on the ground
that the money was payable only out of profits,
and counterclaimed for rectification of the
agreement in the event of any other interpreta-

to S. The evidence proved that S. and the
that
on unfriendly terms;
prisoner were
prisoner, in January, 1916, set fire to S.'s tent,
when S. was asleep within; and that he had
over S.,
previously thrown sulphuric acid
causing a severe burn. The maximum penalty
for the above offence is imprisonment for life
with hard labour, with or without solitary
confinement. The sentence imposed was im-
prisonment, with hard labour, for fifteen years.
Held, on appeal against the sentence
excessive, that the appeal should be dismissed.
R. v. BUCKMASTER

2.

as

C.C.A. 30

Unlawful carnal knowledge of girl
under
seventeen
age of
years-Evidence-
Corroboration of evidence of girl-Commencement
of period of sentence-The Criminal Code,
ss. 215 (1), 671a., subsec. 3.

Held, on the facts, that there was sufficient
corroboration of the evidence of the prosecutrix
in a charge of having unlawful knowledge of a
girl under the age of seventeen years.
R. v. LEE

3.

.. C.C.A. 102

-Rape-Attempted rape-Evidence-
Criminal appeal—Application for leave to appeal
-Prisoner not represented by counsel-Prisoner
not present.

The evidence given at the trial was clearly
sufficient to support a conviction of rape.
The jury, however, found the prisoner guilty
of attempt to commit rape, and he was sentenced
to seven years' imprisonment. In the notice for
leave to appeal the prisoner stated that he
desired counsel to be assigned to him, and that
he did not wish to be present at the hearing of
the appeal.

An application for leave to appeal was refused
by a Judge in Chambers. The prisoner there-
upon gave notice that he desired the application
for leave to appeal to be heard by the Court of
Criminal Appeal. This application was heard
in the absence of the prisoner, and the Court
considering that no useful purpose would be
served by granting legal assistance, did not
assign counsel to him.

DESERTED WIVES AND CHILDREN

Continued.

Deserted Wives and Children Act of 1840 (4 Vic.,
No. 5), s. 2-The Deserted Wives and Children
Act Amendment Act of 1858 (22 Vic., No. 6), s. 6.
A wife who had left the marital home,
claimed maintenance against her husband,
alleging that she had been constructively
deserted by him. The husband had a suitable
home, and was willing at all material times to
receive his wife in the home. The reason given
by her for leaving the home was that she had
been told by her daughter that the daughter
had seen another woman in bed with the
husband. This evidence was objected to at the
hearing, but was admitted by the Magistrate.
The husband denied the allegation, and the
daughter, while admitting that she had made
the statement, swore that it was not true. The
Magistrate ordered the husband to pay a certain
sum per week to his wife as maintenance.

Held, that the evidence of the wife as to the
statement made by the daughter was wrongly
admitted; that there was no evidence on which
the Magistrate was justified in ordering the
payment of maintenance; and that his order
should be quashed.

FENCING-Dividing fence-Contribution to cost
of repair-Equal proportions-The Fencing Act
of 1861 (25 Vic., No. 12), ss. 3, 5, 6.

A. served a notice on B. requiring him to
assist in or contribute towards the repair of a
dividing fence and stating that after the
expiration of three months he would execute
the repairs and take steps to recover B.'s share
of the cost. B. failed to take any action within
that period, and after its expiration A. proceeded
to erect a new fence along the boundary. At the
same time B. commenced the work of repairing
the fence.

A. ceased the erection of a new fence
after one chain, costing £2 4s., had been put
up. B. continued his work until the whole
fence was repaired. By complaint under The
Fencing Act of 1861, A. made claim for one-half
of the money expended by him, and the Justices
adjudged him to be entitled to that amount.
Held, that as the Justices had failed to take
into consideration the value of the work done

by B. their order could not be supported.
YOUNG v. MIELAND, Ex parte MIELAND.
FINDINGS OF JURY-

See SALE OF GOODS. 1, 2.

1917, Q.W.N. 5

GOODS

See SALE OF Goods.

GOODWILL

See REVENUE-Income Tax. 3.

HABEAS CORPUS

See INFANT.

F.C. 99

INDEMNITY AGAINST INCOME TAX-
See REVENUE-Income Tax.

INDUSTRIAL MATTER-

3.

1. Court of Industrial Arbitration-Con-
struction of statute-Preference to unionists-
"Industrial matter "-The Industrial Arbitration
Act of 1916 (7 Geo. V., No. 16), ss. 4, 7.

In re EMPLOYEES IN WOOL STORES AND
OTHERS
1917, Q.W.N. 41