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NOVEMBER 6, 1908.
THE QUEENSLAND LAW! REPORTER.
59. Poisons—Opium-Possession of opium by person to whom
its use had been prescribed by a medical practitioner-The
Act, 1897 (61 Vic., No. 17), s. 22.
The facts found by the Magistrate were that the appellant on 20th August, 1908, was found in possession of a small quantity of opium ; that the appellant was addicted to the opium habit ; that on 16th April, 1907, a medical practitioner gave the appellant a prescription for one ounce of opium for personal use for the purpose of alleviating any suffering caused by abstention from the use of opium ; that the appellant used the opium for the purpose prescribed ; that if the appellant had suddenly discontinued the use of opium it would have affected him seriously that it is immaterial in what form the opium is used to alleviate such suffering that the opium found was not a substance compounded exclusively for medicinali purposes.
The question submitted by the Magistrate was, Whether, on the facts found, the appellant was rightly convicted ?
Jameson, for appellant: The conviction was wrong. The case is covered. by Moroney v. Quok Yen (1908 St. R. Qd.). The respondent did not appear.
CHUBB J.: This conviction must be quashed, but I adhere to what I said in Moroney v. Quok Yen. Each case depends upon its own merits, and it is not sufficient to produce a prescription as a complete answer when a person is found in possession of opium. The possession must be bona fide, reasonable, and consistent with the prescription, which itself also must be bona fide. In this case the Magistrate found bona fides, but he has not found that the opium found in appellant's possession exceeded in quantity the one ounce prescribed by the medical practitioner, nor that it did not form part of the ounce so prescribed.. The conviction will be quashed, but without costs against respondent, as I consider he was justified in prosecuting under the circumstances.
King 1. Ah LIN, 30th September, 1908, CHUBB J. (IN THE NORTHERN ('OURT).. Counsel: Jameson. Solicitors : S. X. Johnson.
60. Scamen— Engagement of seaman--Unlawful engagement
Desertion-The Water Police Act of 1853 (17 Vic., No. 36), ss. 4, 7-The Merchant Shipping Act, 1894 (57 and 58 Vic.,
c. 60), ss. 221, 694. QUASHING ORDER.
O'Connell, a coal trimmer on the s.s. Bingera, was charged with deserting from the ship at Townsville. He was convicted and sentenced to fourteen days' imprisonment, and to forfeit his wages, £l 178. 4d., to be applied in payment of the costs of the prosecution.
A rule nisi to quash the conviction was granted by Chubb J., on the ground" (inter alia) that the applicant was not lawfully engaged in accordance with the provisions of the statute. The Water Police Act of 1853 (17 Vic., No. 36), s. 4.
The facts are stated in the judgment.
Macnaughten moved the order absolute, and cited The Water Police Act of 1853 (17 Vic., No. 36), ss. 4, 12, 7; and Ex parte Douglas (1 S.C.R. (N.S.W.) 25)..
Jameson showed cause, and cited The Merchant Shipping Act of 1894, ss. 221, 711; The Water Police Act of 1853, s. 7.
CHUBB J.: The prosecution in this case purported to be instituted by the master of the Bingera under s. 221 of The Merchant Shipping Act of 1894, which provides that if a seaman lawfully engaged deserts from his ship, he shall beguilty of the offence of desertion, and be liable to forfeit his effects aboard and the wages then earned, and also (except in the United Kingdom) be liable to im-prisonment for not exceeding twelve weeks, with or without hard labour. The Magistrate convicted and sentenced the appellant to fourteen days' imprisonment, and forfeited his wages, £l 178. 4d., and ordered them to be applied towards the costs of the prosecutor. At the hearing before the Justices, the ships' articles, sigi by the appellant, and initialled by a person purporting to be a Shipping
THE QUEENSLAND LAW REPORTER.
NOVEMBER 6, 1908.
Inspector, were produced, and evidence of the agreement and desertion were given. If the evidence had stopped there, the case was prima facie proved. The Merchant Seamen Act of 1849 (13 Vic., No. 28), s. 5; The Water Police Act of 1853 (17 Vic., No. 36), s. 7; The Merchant Shipping Act, 1894, s. 694, subsec. 4. But the prima facie case was displaced by the respondent's evidence that the appellant was engaged for twelve months on the Bingera, and signed the articles at sea after leaving Townsville, and the evidence that the initials of the Shipping Inspector were stated to be those of an officer at the port of Brisbane. The appellant, therefore, was clearly not lawfully engaged. By ss. 4 and 7 of The Water Police Act of 1853, no seainan shall be engaged except by the master or owner, and at the office and with the sanction and in the presence of the Shipping Master at the port of engagement, and s. 12 of the Act imposes a penalty of £20 on the master or owner for engaging a seaman otherwise than before the Shipping Master, and in the manner prescribed. How the initials of the Shipping Inspector at Brisbane got on the articles did not appear, and even on the evidence it was left in doubt who actually-the master, the chief engineer, the fourth engineer, or the purser-formally engaged the appellant. The purser read the articles to the appellant, and wrote his signature thereto, and the fourth engineer heard the articles read; but whether the master was present was not proved. The conviction is quashed. Defendant to be released from custody. Respondent to pay appellant's costs.
Order absolute, with costs. COWIE 1. O'CONNELL, 22nd June, 1908, NOPTHERN COURT, CHUBB J., (IN CHAMBERS). Counsel : Macnaughton, Jameson. Solicitors : Hobbs, Wilson -& Co.; Roberts, Leu, & Barnett.
61. Practice-Costs Trial with jury Joint defendants in
action for defamation-Substantial damages against one
order-0. XCI., rr. I and 2. SUMMONS.
This was an application to discharge or vary a judgment as settled by the Registrar. The trial of the action, in which the plaintiff claimed damages for defamation against joint defendants, took place before Power J. and a jury at Rockhampton. All the material facts are stated in the judgment.
Miskin (solicitor), for the applicant: This is an application to have the judgment pronounced in Court correctly expressed in the formal judgment as settled by the Registrar, which is not correct, for in its present form the taxing officer would be precluded upon taxation from distinguishing between the whole costs of the action and costs arising in consequence of the joinder of defendant Hay, against whom the plaintiff has failed. 0. LXVII, rr. 54, 55, and 56. Nothing concerning costs was included in the judgment pronounced, and the Registrar had no power to add the words, costs of this action to be taxed.” Rule 1 makes costs follow the event, except in cases coming under r. 2; r. 2 deprives a party of costs then he fails to recover above £30 ; r. 3 makes costs of each issue follow the. event. There were two issues here--viz., the claim against defendant Briggs, and that against defendant Hay. Plaintiff succeeded in the first, but failed in the second, for he recovered one farthing only, and was thereby deprived of costs. The English rules are different. Cf. O. LV., r. 1. The plaintiff, therefore, is not entitled to recover the whole costs of action against Briggs, but only those costs which were not occasioned by joining Hay as a defendant. Kelly's Directories v. Gavin & Lloyds ( 2 Ch.D. 763), Stumm v. Dixon ( 22 Q.B.D. 529), Beaumont v. Senior & Bull ( 1 K.B.D. 282), Annual Practice, 1907, pp. 886, 887. The judgment, as settled, should be discharged, at any rate as to the words,
costs of this action to be taxed,” or it should be varied by the addition thereto of the words, “except so far as such costs were occasioned by the claim against the defendant James Geddes Hay.”'
Ryan, for the plaintiff : The judgment, as settled, is the judgment which was pronounced by the Court. It is clearly right, and cannot be varied. Roxburgh v. Sully (1 Q.L.J. 148). In jury cases, costs follow the event. 0. XCI., r. 1, and O. LV., r. 1, of English Rules. The judgment means what it meant on the day it was pronounced, and the taxing master can make the proper distinctions
NOVEMBER 6, 1908.
THE QUEENSLAND LAW REPORTER.
when taxing costs. The fact of one farthing damages against one defendant only excuses that defendant from his liability to pay costs, it cannot excuse the defendant against whom substantial damages have been found from his liability to pay the whole costs of the action. The issues were not separate, as the defences were exactly the same in the case of both defendants. Stumm v. Dixon (22 Q.B.D. 529, per Esher L.J., at p. 533), Hayes v. Tait ( 1 K.B. 656).
Miskin, in reply: Unless the words objected to are excised, the defendants will be deprived of their rights to object upon taxation to the method by which costs are to be apportioned between them.
Power J. : This action was tried before me with a jury at the last civil sittings, and it being a jury case no costs were asked for at the time the judgment was entered by me. The Associate's certificate states---“ The Judge directed that judgment should be entered for the plaintiff against the defendant Charles Briggs for £250 and that judgment should be entered for the plaintiff against the defend. ant James Geddes Hay for one farthing.” The Registrar, in drawing up the judgment against Charles Briggs, added to the words in the Associate's certificate the words and costs of this action to be taxed.” It has been contended in argument that, as no mention of costs is made in the Associate's certificate, the Registrar was wrong, even in a jury case, where, in the absence of an express direction from the Court or the Judge, the incidence of costs is settled by the rules, in making any mention of them in the form of judgment ultimately drawn up and settled by him. On the authority of Hayes v. Tate (, 1 K.B. 636), I do not hold this view, but think the Registrar was right in including costs when drawing up the judgment. The question which now remains for me is—Has the Registrar rightly settled the judgment ? In other words—Is it the judgment that was pronounced in Court after the jury's verdict had been taken ? Our Rules of Court (0. XCI., r. 1) provide shortly that in a jury case the costs shall follow the event unless the Judge otherwise orders, subject to the proviso in r. 2 that the verdict shall be over £30. In my opinion, very little assistance can be obtained from the English cases which have been cited, as this proviso does not appear in the English rules. The plaintiff, though nominally successful against the defendant Hay, failed to this extent, that he secured a verdict which did not
He failed to secure his costs against the defendant Hay. Can it be said that his verdict against the co-defendant Briggs secures to the plaintiff his costs of joining a defendant against whom, under 0. XCI., r. 2, he has failed to secure costs ? I am of opinion that the words costs shall follow the event in 0. XCI., r. 1, do not cover a case such as this. I think, therefore, that the judgment settled by the Registrar against the defendant Briggs should be varied in terms of the summons. The order will be : “ That the judgment in this action against the defendant Charles Briggs settled by the Registrar, and filed on the 3rd of September instant, and dated the 28th August, 1908, be varied by adding to the words ‘ and costs of this action to be taxed 'the words except so far as such costs were occasioned by the claim against the defendant James Geddes Hay.' Plaintiff to pay to the defendants their costs of this application.”
HEMPENSTALL V. BRIGGS AND Hay, 24th September, 1908, POWER J., IN CHAMBERS (CENTRAL COURT). Counsel : Ryan. Solicitors : J. F. Fitzgerald & Walsh; W. H. Miskin.
62. Small Debts Court--Jurisdiction--Claim for wages-Court
holden in and for the district where the defendant shall usually
No. 27), s. 12.
The prosecutor, Smith, engaged Jamieson as a servant, and Jamieson worked for him from November, 1906, to August, 1907. Smith resided at a place outside the Petty Sessions District of Biggenden, the place where the agreement for service was made, and the place where the service was performed of being also situated ontside the district of Biggenden. In July, 1908, Jamieson issued a plaint, in which he claimed £16, the balance of wages due, and the prosecutor was served with a summons therein to appear at the Court of Petty Sessions at Biggenden. Judg. ment by default was given in the action for the amount claimed, and costs.
In August an order nisi for å writ of prohibition was granted, on the grounds that the Justices had no jurisdiction, and that the Justices proceeded in a manner not authorized by The Small Debts Court Act of 1867. The second ground was not relied upon on the motion for the order absolute. It raised the question of reasonTHE QUEENSLAND LAW REPORTER.
NOVEMBER 6, 1908.
able notice, the service of the summons having been made on 31st July, 1908, for a day of hearing fixed for 4th August following. The evidence by affidavit clearly showed that the Court for the Petty Sessions District of Tiaro had jurisdiction in the matter. After judgment, a warrant of execution was issued, and a cheque was given to satisfy it; the payment of this cheque was subsequently stopped. The order nisi was granted on the terms that the prosecutor paid £18 into the Court of Petty Sessions, to abide the decision on the motion for prohibition.
O'Sullivan moved the order absolute, and referred to R. v. The Justices of Toowoomba, Ex parte Fraser (1902, St. R. Qd. 203), R. v. Justices of Isisford, Ex parte Armstrong (1902 St. R. Qd. 251).
0 Rourke showed cause. The joint effect of s. 12 of The Small Debts Act of 1867 and S. 139 of The Justices Act of 1886, enabled the Court of Petty Sessions at Biggenden to exercise jurisdiction over the place where the defendant resided. In this case there is nothing to prohibit, for execution was issued, and the bailiff holds a cheque for the plaintiff. Ex parte Foster (11 S.C.R. (N.S.W.) 195), Ex parte Medlyn (9 N.S.W. W.N. 185). The remedy of the prosecutor herein is against the bailift, not against the defendant, by way of prohibition. There is no affidavit that this application was authorized by the prosecutor. Ex parte Weingarth (20 N.S.W. W.X. 136), Ex parte Ah Fat (20 N.S.W. W.Y. 153).
O'Sullivan, in reply: No affidavit that the application is authorized by the applicant is necessary. It is required only in mandamus. 0. LXXXI., r. 13.
Held that the order nisi should be made absolute; the money in Court paid out to the prosecutor; and the costs of obtaining the order nisi paid by the respondent.
R. v. THE JUSTICES OF BIGGENDEN, Ex parte SMITH, 1st September, 1908, Full C'OURT (REAL, ('HUBB AND POWER, JJ.). Counsel: O'Sullivan; O'Rourke. Solicitors : O'Sullivan & Scott, for ('. S. McGhie, Maryborough; E. K. Tully, for J. P. Forde, Biggenden.
63. Workers' compensation-- Application for hearing in a Petty
Sessions District other than that in which the injury happened
Compensation Act of 1905 (5 Edw. VII., No. 26), s. 5.
Acting under reg. 89 of The Regulations of 2nd July, 1908, a Police Magistrate made an order granting consent to the filing of an application for the hearing and determination of a question of liability under The Workers' ('ompensation Act of 1905, at G., a town in a district other than that in which the injury happened, on the ground that the poverty of the applicant rendered it impracticable that the matter should be heard in the district where the accident happened, and that it was more convenient to hear it at G. From this direction the employer appealed to the Full Court by way of special case, stated by the Police Magistrate under s. 5.
During the argument it was stated that some doubt had been entertained as to whether the appeal should be by way of special case or prohibition, and that an order nisi for prohibition had been granted .
Held : There is no appeal by way of special case under s. 5 of The Workers' Compensation Act of 1905, from a consent given by a Police Magistrate to the hearing of a claim for compensation in a district other than that in which the injury happened ; the powers given by that section to state a special case only arise when some question has arisen concerning the liability to pay compensation or the amount or duration of compensation payable under the Act. The question of costs will be reserved until after the determination of the motion for a prohibition now pending. Liberty to apply.
In re HAJLET, 4th September, 1908, Full ('OURT (COOPER C.J., CHUBB AND PowER JJ.) ('oumsel : Lilley; A. E. Douglas. Solicitors : Morris & Fletcher, for Hamilton & Neilson, Bundaberg: Chambers, McNab & Me Nab, for Power & Pack, Gympie.