1909.

October 26, 27, 28.
November 5.

Cooper C.J.
Real J.
Chubb J.
Shand J.

[IN THE FULL COURT.]

CARTER v. RENFREY, Ex parte RENFREY.

Master and servant-Shearing agreement-Workmen unlawfully and without reasonable cause refusing to perform workArbitration Court agreement-Discharge of shearer—Consent of majority of shearers-The Masters and Servants Act of 1861 (25 Vic., No. 11), s. 3-Order for term of imprisonment in default of sufficient distress-Amendment of order.-The Justices Act of 1886 (50 Vic., No. 17), s. 163, 164, 165The Justices Act Amendment Act of 1892 (56 Vic., No. 23), 8. 2.

A number of shearers contemplating employment proceeded to Aberfoyle station on 1st April, 1909. After their arrival the overseer, in collectively engaging them, called a roll of their names and told them that the work was to be done "under

the Arbitration Court agreement verbally," and that they must all remain at the
work until the finish of the shearing. The shearers acquiesced by a chorus of
"Hear, hear." The first, second, and sixth clauses of this agreement state:—
(1) The shearer hereby agrees to shear with all reasonable despatch and to the
satisfaction of the employer or his agent all the sheep required by the said
employer or his agent on...... station, provided that the total number of sheep to
be shorn by the whole of the shearers shall not be more than....nor less than....
(2) The shearer shall be at...... station or run ready to begin shearing on the
......day of........., and the employer agrees to be ready to commence shearing
on that date, and to keep the shearer fully supplied with sheep till the completion
of shearing unless prevented by any unforeseen cause or causes. (6) The shearer
shall not absent himself from work excepting in case of illness, but if he be
discharged-which he may be for breach of this agreement-or in case he leave
before the completion of the shearing owing to sickness, accident, or other
unavoidable cause, or by the permission of the employer or his agent (such
permission not to be given without the consent of a majority of the remaining
shearers), he shall be paid in full for all sheep shorn by him after making certain
deductions therein specified. Later in the day the manager told the shearers'
chairman that there were between 33,000 and 35,000 sheep to be shorn. After
the work had continued for some time, the men ceased work to determine
whether the sheep were too wet to be shorn. A majority decided that they were
dry enough, and work was resumed by all except two, who refused to resume.
These two were immediately dismissed. During the course of the day the shearers
held a meeting, and subsequently the shearers' chairman informed the employer
that the men who had been dismissed must be reinstated. This request was not
granted, and thereupon all the men except one, Heydon, ceased work. They were
summoned and convicted for having unlawfully and without reasonable cause
refused to perform the work undertaken by them under the verbal agreement.

Held (Real J. diss.), that the circumstances surrounding the making of the agreement known to the parties rendered the agreement sufficiently definite.

Per Real J.: As no maximum or minimum number of sheep was stated, the agreement was terminable at the will of either party, and the defendant was therefore wrongly convicted.

Held, also, that the justices could reasonably come to the conclusion that the shearers had no reasonable cause for refusing to work.

Held, also, that Heydon was wrongly convicted for he was willing to work but could not, as the machinery could not be kept in operation to accommodate one shearer. In making their order the justices inflicted a fine, and in default of payment thereof directed levy and distress, and in default of sufficient distress, ordered a term of imprisonment.

Held, that the justices had no jurisdiction to impose a term of imprisonment until default had been made in payment of the fine, and that their order should be amended by striking out that part.

APPEAL from a judgment of Power J.

Certain shearers were prosecuted separately for having unlawfully and without reasonable cause refused to perform certain shearing work which they had by parol agreement undertaken to do for the appellant. The Justices convicted each of them. The respondent was one of the shearers so convicted. He was ordered to pay a fine of £10, and £3 2s. costs, in default levy and distress, and in default of sufficient distress, sentenced to two months' imprisonment. From this conviction he appealed to the Central Court under s. 209 of The Justices Act of 1886. The grounds on which the order nisi was obtained were :-That there was no evidence to support the conviction; that evidence was wrongfully admitted by the Police Magistrate on the hearing of the said complaint; that there was no evidence of a definite agreement as required by The Masters and Servants Act of 1861; that the complainant failed to prove that the defendant had not reasonable cause for his refusal (if any) to fulfil his agreement (if any), or that he bona fide believed he had such reasonable cause; that the ordering of an alternative of imprisonment as in the conviction was bad in law; and that the said Police Magistrate did not proceed judicially on the hearing of the said complaint. The order nisi to quash the conviction was made absolute, with costs, by Power J.

From this decision, this appeal was brought on the grounds --That the judgment was contrary to law; that there was sufficient evidence to support the conviction; that the reference by the Police Magistrate to the tally book on which the learned Judge

F. C. CARTER V. RENFREY, Ex parte RENFREY.

F. C.

CARTER V RENFREY, Ex parte RENFREY.

quashed the conviction did not influence the decision of the Police Magistrate; that evidence was improperly admitted by the Judge on the hearing; and that the judgment was against the evidence and the weight of evidence.

The facts of the case are summarized in the head note and fully appear in the judgments of Cooper C.J. and Shand J.

Stumm, for the appellants. The agreement under which the shearers contracted to conduct the Aberfoyle shearing was on the terms stated in the Arbitration Court Agreement. The blanks are supplied by implication from the surrounding circumstances. The agreement was definite. There was ample evidence to support the findings of the Magistrate, and his decision ought not to be interfered with, unless clearly wrong. He cited Ex parte Bennett (1), Unwin v. Clarke (2), Irving v. Gagliardi (3), R. v. King, Ex parte King (4), Groshanig v. Vaughan (5), Berg v. Semeloff (6), Davis v. Lawrence, Ex parte Lawrence (7).

Ryan and E. A. Douglas, for the respondents: The two men had reasonable ground for refusing to shear and for condemning the sheep as wet, and they were wrongly dismissed. At any rate, the men believed bona fide that they had a right to stop work under the circumstances, and had reasonable cause. Youle v. Mappin (8), Abrath v. North Eastern Railway Co. (9), Chisholm v. Boulton (10). If they were wrong, the maxim, ignorantia juris haud excusat, does not apply, for the ignorance was of a private right. Rider v. Wood (11), Ashmore v. Horton (12), Willett v. Boote (13), Neighbour v. Moore (14), Earl of Beauchamp v. Winn (15), Culter v. Turner (16), Cooper v. Phibbs (17). The principle underlying the agreement was adherence to unionism, a breach of the agreement with one of the shearers was a breach with all. There was no mutuality. Leake on Contracts, 9th Ed., p. 5. The agreement was not definite, for the number of

sheep to be shorn was not stated, and the time was not fixed. They referred to the Arbitration Court Agreement, clauses 1, 2, and 6, and rule 18 of the rules embodied in the agreement. Lees V. Whitcomb (1), Aspdin v. Austin (2), Groshanig v. Vaughan (3), Ex parte Tighe (4). They also cited Arida v. Sid (5), Craven v. Harte (6). The order for imprisonment was clearly wrong. The Justices Act of 1886, ss. 163, 167, 173, 174; The Justices Act of 1892, s. 2; Hawe v. Cassidy, Ex parte Hawe (7), Ex parte Waters (8). If the agreement embodied the Arbitration Court agreement, any breach thereof was punishable under that Act. If it cannot be enforced in the manner mentioned in the Conciliation and Arbitration Act, the parties have only their civil rights, and no criminal proceedings for punishment are available. R. v. Gracey, Ex parte Gracey (9), R. v. Twose (1), Kuhn v. Ringelstein (11), Seth Turner's Case (12), Behn v. Burness (13), Glaholm v. Hays (14).

Stumm, in reply, referred to Norton on Deeds, pp. 534-536, Carter v. Scargill (15), Smart v. Pessol (16), R. v. Grover (17), Ex parte Cameron (18), Ex parte Bennett (19); 4 Will. IV., c. 7, s. 4; R. v. Osborne (20), Herbert v. Range (21), Irvine's Justice of the Peace, 2nd Ed., p. 220.

The following judgments were read :

C.A.V.

COOPER C. J. This is an appeal from the order of Power J. of the 18th August last, quashing a conviction made by the Police Magistrate at Tangorin against a number of shearers for unlawfully and without reasonable cause refusing to perform certain work undertaken by them under a verbal agreement. It appears that the shearers in question, eighteen in number, and two others, named Arthur Fraser and Kaselow, were all verbally engaged

(1) 1828, 5 Bing. 34.

(2) 1844, 5 Q.B. 671. (3) 1891, 4 Q.L J. 50. (4) 1858, 2 Legge. 1100. (5) 1894, 6 Q L.J. 6. (6) 1897, 8 Q.L.J. 142. (7) 1907, St. R. Qd. 21. (8) 1891, 7 N.S.W.W.N. 94. (9) 1897, 8 Q.L.J. 104. (10) 1879, 14 Cox C.C. 327. (11) 1898, 9 Q.L.J. 74.

(12) 1846, 9 Q.B. 80.
(13) 1863, 3 B. & S. 751.
(14) 1841, 2 Man. & G. 257.
(15) 1875, L. R. 10 Q.B. 564.

(16) 1874, 30 L.T. 632.

(17) 1881, 7 V.L R. (L.) 334.

(18) 1890, 11 N S. W.L.R. 422.

(19) 1892, 13 N.S.W.L. R. 15; 8
N.S.W.W.N. 118.
(20) 1909, St. R. Qd. 310.
(21) 1910, St. R. Qd. 17.

F. C. CARTER V. RENFREY, Ex parte RENFREY.

Cooper C.J.

F. C. CARTER V. RENFREY, Ex parte RENFREY.

Cooper C.J.

66

in a body at Aberfoyle Station in April last to shear the Aberfoyle
sheep under the terms of "The Arbitration Court Agreement,"
which contains certain well-known stipulations as to price and
other particulars. Clause 6 of the Agreement is as follows:-
The shearer shall not absent himself from work except in the
case of illness; but if he be discharged, which he may be, for breach
of this Agreement, or in case he leave before the completion of
shearing, owing to sickness, accident, or other unavoidable
cause, or by the permission of the employer or his agent (such
permission not to be given without the consent of a majority
of the remaining shearers), he shall be paid in full for all
sheep shorn by him after deducting fifteen shillings per week,
or any rate the majority of shearers agree upon for his board,
cook's remuneration included, such sum to be a first charge upon
and to be deducted from the amount earned and placed to the
credit of the shearers' mess account." During the argument,
counsel for the respondents, I think correctly, interpreted
the condition, "such permission not to be given without the
consent of a majority of the remaining shearers," as meaning a
check upon an employer who might wish to favour individual
shearers by enabling them, as the shearing drew to an end, to get
away before the others, and forestall them in entering upon a
new engagement at another shed. The number of sheep on the
station was not mentioned at the time the engagement took place,
but was stated to the "chairman," or spokesman, of the men as
between 33,000 and 35,000. If any of them did not know the
number of the sheep to be shorn, I should say that such ignorance
was solely the result of their indifference. They began shearing
on the 6th April, and continued till the 29th. On the 30th,
a question arose about the fleeces of the sheep, whether they were
""
wet or "dry," ten of the shearers voting that they were
dry," and therefore that the sheep were fit to be shorn, and
nine voting the other way. The "chairman" did not vote, though
he said he was of opinion that the sheep were
"wet." The
shed overseer was of opinion that the sheep were perfectly dry.
All the men went to work at once with the exception of A. Fraser
and Kaselow, who refused to shear, and were dismissed by the
shed overseer. The other men continued shearing for about an