66

INDUSTRIAL MATTER-Continued.
the complaint. A special case was stated for
the consideration of the Industrial Court in
accordance with s. 51 of the Act, and at the
hearing of the special case by the Industrial
Judge, the latter made an order referring the
case back to the Magistrate to ascertain
by admission of the parties or otherwise
certain facts which did not appear in the special
case and upon which no evidence had been
given or admissions made before the Magistrate.
In obedience to this order, the Magistrate re-
opened the case, and proceeded to take fresh
evidence. Witnesses were examined, and the
Magistrate made further findings of fact, which
were sent back to the Industrial Judge, with the
depositions taken. The Judge thereupon, after
expressing the opinion that the facts and
evidence disclosed an offence against The
Industrial Peace Act of 1912, ordered that the
case be remitted to the Magistrate with the
opinion of the Court thereon, and that he should
enter an adjournment and proceed to hear and
determine the same. In obedience to this order,
the Magistrate again called the parties before
him, and entered an adjournment, and, not-
withstanding objection, convicted and fined the
defendant. On the hearing of a motion for an
order absolute for prohibition directed to the
Industrial Court, the complainant, and the
Magistrate,

Held, that the Industrial Judge, in making the
order referring the case back to the Magistrate to
ascertain by admission of the parties or other-
wise certain facts not previously found, was
acting beyond his power and outside his juris-
diction, the conviction was ultra vires, and the
order nisi for prohibition should be made
absolute.

THE KING v. THE INDUSTRIAL COURT OF
QUEENSLAND AND OTHERS, Ex parte CENTRAL
MILL COMPANY LIMITED
. F.C. 88

INFANT Custody-Parent and child-Right
of father-No misconduct-Welfare of child-
Habeas corpus-Payment for maintenance of
child-The Guardianship and Custody of Infants
Act of 1891 (55 Vic., No. 13), ss. 10, 11.

An application for a writ of habeas corpus
was made by the father for the custody of a male
child aged three years and nine months. The
mother of the child died when the infant was
seven months old, and for a few weeks after
wards the paternal grandparents had care of
the infant, when, with the father's consent,
he was taken to the home of the maternal
grandparents, and from that date was well and
carefully cared for and maintained. The father
had not been guilty of any misconduct or
impropriety to disentitle him to the custody
of the child. He was at the date of the applica-
tion a widower living in lodgings.

The learned Judge of first instance refused to
give the custody of the child to the father, but
stated that the order was not final, and when
circumstances should justify that course the
father could renew the application, and that
if subsequently granted, he would order the
payment by the father of a reasonable sum for
the child's maintenance during the period the
child was maintained by the maternal grand-
parets.

Held, on appeal, that the order was a proper
order and within the jurisdiction of the learned
Judge.

During the period between the date of the
application for habeas corpus and the hearing
of the appeal, the father married a second
time and provided a home. The Court, in
dismissing the appeal, indicated that the altered
circumstances might justify a renewal of the
application.

CO-OPERATIVE
.. F.C. 245

2. -Diseases in sheep-Assessment-Fail-
ure to pay assessment—“ Owners of sheep "-
Stock kept or depastured on 1st January'
Return· Posssssion of sheep on 1st January
under written contract which permitted pro forma
delivery and which provided expressly that the
property in the sheep passed on payment therefor—
Obligation to make return-Construction of
statute-Practice-Objection to complaint not
taken in Court below and not raised in order nisi—
Lapse of time-The Diseases in Sheep Act of
1867 Amendment Act (34 Vic., No. 26), 8. 3—
The Stock Returns Act of 1893 (57 Vic., No. 10),
ss. 2 and 3-The Diseases in Sheep Act of 1867
(31 Vic., No. 35), s. 2.

JUSTICES-Continued

The Diseases in Sheep Act of 1867 Amendment
Act of 1871, s. 3, provides :- In order to pro-
vide for the expenses of carrying into effect the
provisions of the Act thirty-first Victoria,
number thirty-five, a return shall be made
annually on or before the first day of January
to the Crown Lands Commissioner of the
district in which the sheep are at the time
depastured or to such other person as may
be authorised in that behalf in the form of the

schedule appended hereto by every sheepowner
of the number of sheep owned by him, and he
shall at the same time pay into the Colonial
Treasury the sum of 58. as an assessment upon
every thousand or part of a thousand sheep."
Owner" is defined to mean, Any owner,
whether jointly or in severalty, superintendent
or person in possession or charge of any sheep.',
The Stock Returns Act of 1893, s. 2 provides:
"On the 1st day of January, or within one
month thereafter, in each year, every owner of
stock shall, in lieu of the returns of stock
required to be furnished under the provision of
any Act or Acts now in force, make and forward
to the Clerk of Petty Sessions of the Petty
Sessions District in which his stock are kept or
pastured a return in the form of the Schedule
to this Act of the number . . . of all stock
kept or pastured on the first day of January;
and in the case of travelling stock such return
shall be made by the drover or person in charge
to the Clerk of the Petty Sessions District in
which the stock shall be on the first day of
January, and any owner failing or neglecting
to make such return within one month from the
date on which it was due
shall be
liable to a penalty not exceeding fifty pounds."
"Stock is defined to mean any one or more
horses, cattle, sheep.

The appellants purchased certain sheep in
December, 1915, under the terms of an agree.
ment, in writing, which, inter alia, provided
that pro forma delivery of the sheep could be
taken by the appellants, but also provided
that the actual delivery or transfer of the
property in the sheep would occur when pay.
ment for the sheep was made to the vendor.
W. took pro forma delivery in December, 1915,
and paid the price about 5th January, 1916.

The appellants were convicted of an offence,
alleging that they, on or about 1st day of
January, 1916, being owners of certain sheep
within the meaning of The Diseases in Sheep
Acts, 1867-1890, neglected to pay into the
State Treasury the sum of five shillings per
1000 as provided by The Diseases in Sheep
Act of 1867 Amendment Act of 1871." No
objection was taken at the hearing of the
complaint or among the grounds on which the

order nisi was granted, that s. 3 of the Amend-
ment Act of 1871, under which the appellants
wholly or in part by The Stock Returns Act of
were charged and convicted, had been repealed

1893.

The Justices Act of 1886,
On an applicction for a quashing order under

Held, that the appellants were not on or before
January 1st, 1916, owners of the sheep, and the
conviction was wrong.

Semble, that the section under which the

appellants were convicted was virtually repealed
by The Stock Returns Act of 1893; that an
objection on this ground to the complainant
would have been fatal; but that as the objection
was not raised at the hearing of the order nisi,
it was too late.

CARDELL v. WINTEN AND WINTEN, Ex parte
WINTEN AND WINTEN
F.C. 136

3. -Factories and Shops prosecution-Pay-
ment of factory worker at less than prescribed
rate-Minimum wage payment--Rate of wage-
The Factories and Shops Act of 1900 (64 Vic.,
No. 28, s. 45)-The Factories and Shops Act
Amendment Act of 1908 (8 Edw. VII., No. 4),

8. 12.

Section 45 of The Factories and Shops Act of
1900, as amended by s. 12 of the Amendment
Act of 1908, provides that-" Every person who
is employed
in a factory

shall be entitled to receive
payment
for his work at such rate as is agreed on, being
not less than .
(b) in the case of a
person not under twenty-one years of age who
has been employed
in a factory
for a period of not less than four years
a rate of not less than
seventeen shillings and sixpence per week for
the next and succeeding years."

An employee, who was over twenty-one years
of age, was employed by a factory owner in a
factory, and had been so employed for more than
four years. The wages paid were fixed by
agreement between the employee and the factory
owner at the rate of 19s. per week. It was the
practice of the factory owner to deduct from
the wages payable in any week a proportionate
part thereof in cases where employees were
absent from work on account of holidays, sick-
ness, late attendance, etc. A public statutory
holiday occurred in the week ending 6th May,
and the factory was closed on that holiday;
and for that week the employee received 158. 3d.,
which was the proportionate part of 198.
complaint was made by an Inspector of Shops
and Factories, charging the factory owner with
an offence against the above section, and the
factory owner was cnvicted.

A

Held, that the conviction was wrong; that
the section prescribed a minimum weekly rate

as

See REVENUE-Succession Duty.
LIQUOR Licensing Court Jurisdiction
to locality-Sale of liquor by licensee at place not
being his licensed premises-District in which
prosecution may be taken-The Liquor Act of 1912
(3 Geo. V., No. 29), ss. 11, subsecs. 1 and 3, s. 156.
The appellant, who was the holder of a
licensed victualler's license for premises situated
in the Licensing District of Mount Morgan, was
convicted in the Licensing Court at Mount
Morgan of an offence of selling liquor away from
his licensed premises at a place which was
situated outside the Licensing District of
Mount Morgan and within the Licensing District
of Rockhampton.

Held, that the Licensing Court exceeded its
jurisdiction.

THE KING V. THE LICENSING JUSTICES OF
MOUNT MORGAN AND QUINLAN, Ex parte

BATTLE

LOAN OR SUBSIDY

See CONTRACT.

LOCAL AUTHORITY-

F.C. 248

1. -By-law-License for theatre-Discretion
of Local Authority-Refusal to license-Validity
of by-law-Mandamus-The Local Authorities
Act of 1902 (2 Edw. VII., No. 19), Part IX.

By The Local Authorities Acts, 1902 to 1915,
Local Authorities have power to make by-laws
in respect of, inter alia, the following matters:—
(i.) The situation, form, and construction of
buildings, rooms, gardens, and other places,
which are, or are intended to be used, kept, or let
for
theatres or cinematograph ex-
hibitions
or for other places of public

amusement; (ii.) the licensing and inspection
of such premises.

66

The Local Authority of Toombul duly made a
by-law, the first clause of which provided:-
No building, room, garden, or other place
within the Shire shall be used, kept, or let for
a theatre
cinematograph

exhibition or any other public performance
or amusement unless the conditions prescribed
by this by-law any any statute in that behalf
are complied with and it is licensed under this
by-law." The other clauses of the by-law
prescribed the fees payable for licenses, made
rules for the conduct of the business on licensed
premises, and required certain provisions to be
made for sanitation and safety.

The appellant applied by letter to Local
Authority of Toombul for a license for his
premises as an open-air theatre, and enclosed
the license fee. The Local Authority considered
the application, decided to refuse the grant of a
license, and notified the appellant of their
refusal. A few days afterwards the appellant
used his premises for a cinematograph exhibition,
although no license had been obtained for their
use for that purpose. He was convicted of an
offence against Clause 1 of the By-law.

Held (Lukin J. dissenting), that the by-law
was valid; that the by-law invested the Local
Authority with a discretionary power to grant
or withhold a license.

Semble, If appellant was entitled to a license
which the Local Authority was wrongly with-
holding, mandamus would be his proper remedy.

An order nisi for a prerogative writ of manda-
mus and an order nisi for a quashing order
under The Justices Act of 1886 should be taken
as separate proceedings.

BUCKLE v. COOK, Ex parte Cook .. F.C. 144

2. Local Authorities-Election-Notice of
election-Erroneous and misleading statements of
fact in notice-Invalidity of election-Ouster from
office-The Local Authorities Acts, 1902-1913,
s. 17, Third Schedule, Clause 3.

One of three councillors was compelled to
retire from office by rotation. The Returning
Officer published a public notice of election by
advertisement, which stated that he would
receive nominations for an election to fill the
place of A., who retired in accordance with
the provisions of the Act. In fact and law B.,
and not A., was the councillor who should have
retired from office. A. made protest, pointing
out that his term of office had not expired, but
the Returning Officer proceeded with the
election. The nomination of C. was the only
nomination received, and the Returning Officer
declared C. elected. A. wrote to C., requesting
him to disclaim the office. On application for
an order to oust C. from office,

Leave to discontinue an action was granted
to the plaintiff on the terms that the costs of

in respect of the same cause of action be
brought, and that in the event of instituting
such further action security for the costs thereof
be given.

SHARPE v. WREN

Real J. 317

MEAT SUPPLY FOR IMPERIAL USES ACT

7.

OF 1914-

See TRESPASS.

MINIMUM WAGE--

See JUSTICES. 3.

MORATORIUM-Moratorium Regulations-
Mortgagee in possession prior to Regulations--
Mortgagor a member of the Australian Imperial
Forces-Application to compel mortgagee to
vacate possession--Order forbidding lease, sale,
or foreclosure-The War Precautions Acts, 1914-
1916 The War Precautions (Postponement of
Payments) Regulations, 1916, Statutory Rules,
1916, No. 163 and No. 283-The War Precautions
(Moratorium) Regulations, Statutory Rules, 1916,
No. 287, 1917, No. 13.

In re HANLY AND THE QUEENSLAND NATIONAL
BANK LTD.
1917, Q.W.N. 18
MORTGAGE

See MORATORIUM.

NEGLIGENCE - No action for damages for
negligence when worker's compensation received.
See WORKERS' COMPENSATION.

NON-SUIT

See PRACTICE. 5.

"ON OR BEFORE".

8.

Unreasonable on evidence.
See SALE OF GOODS. 1.

JOINDER OF PARTIES.

-Parties-Action claiming declaration
that award of Central Board constituted under
The Regulation of Sugar Cane Prices Act of 1915
was illegal-Attorney-General joined as defendant
Improper joinder.

The Central Cane Prices Board, constituted
under The Regulation of Sugar Cane Prices Act
of 1915, made a certain award on appeal from
the Goondi Local Cane Prices Board. The
plaintiffs brought an action against the Attorney-
General and a grower of sugar cane in the
district within which the award operated,
seeking a declaration that the award was
illegal and ultra vires of the Central Cane Prices
Board on the ground (inter alia) that the
Goondi Local Cane Prices Board had not been
properly constituted by Order -in-Council.
in maintaining the validity of the award.
Crown was not directly or indirectly interested

The

Held, that the Attorney-General was wrongly
joined as a party.

COLONIAL SUGAR REFINING CO. LTD. V.
ATTORNEY-GENERAL AND HOWE
F.C. 83

See SALE OF Goods.

OUSTER-

See LOCAL AUTHORITY. 2.

POWER OF ATTORNEY-

See PROBATE AND ADMINISTRATION. 2.

10.

PRACTICE-

See SALE OF GOODS. 1.

JUDGMENT.

-Setting aside findings of jury—No

evidence to support findings.

ACTION.

See SALE OF GOODS.

1.

2.

PRICES.