[IN THE FULL COURT]. COLONIAL SUGAR REFINING CO. LTD. v. ATTORNEY GENERAL AND HOWE. Practice-Parties--Action claiming declaration that award of The Central Cane Prices Board, constituted under The Regulation of Sugar Cane QUESTION OF LAW REFERRED. The Central Cane Prices Board, a body constituted under The Regulation of Sugar Cane Prices Act of 1915, made an award for the Goondi Mill District under the circumstances which are set out in R. v. The Central Cane Prices Board and Others, Ex parte The Colonial Sugar Refining Co. Ltd. (1). The plaintiffs challenged the validity of the award by the proceedings stated in that case; and also sought redress by this action, which was brought by the plaintiffs against the Attorney-General and Howe, a canegrower growing cane in the district to which the award applied, and in which the plaintiffs asked for a declaration that the award of the Central Sugar Cane Prices Board for the Goondi Mill for 1916 was made without and in excess of jurisdiction, and was contrary to law, and void and of no effect, and was not binding on the plaintiff company; and an injunction restraining the defendant Howe from enforcing the award or claiming or attempting to enforce it against the plaintiff company. By an order of Cooper C.J., certain questions of law involved in the action were referred to the Full Court. O. XXXVIII., r. 2. It is not necessary to set these out, because by the judgment in the case mentioned (1), which was heard before the present case, the matters of 'aw raised by the questions referred, had been decided. (1) 1917, St. R. Qd. 1. 1916. October 23. December 11. Cooper C.J. Real J. Lukin J. F. C. COLONIAL This case is reported solely on the question of whether or not SUGAR REFINING the Attorney-General had been properly joined as a party thereto. Co. LTD. v. ATTORNEYGENERAL AND HOWE. Shand J. Stumm K.C. and Walsh (for Hart, on active service with His Majesty's Forces), for the plaintiffs. Ryan A.G. and Real (for Henchman, on active service with His Majesty's Forces), for the Attorney-General. Real (with Ryan A.G.), for the Attorney-General: The Attorney-General has been wrongly joined as a party, and the action in its present form is not maintainable against him. The statement of claim discloses no cause of action against him. Dyson v. Attorney-General (1), Ryder v. Foley (2), Sefton v. Dickson (3), Nireaha Tamaki v. Baker (4), Burghes v. AttorneyGeneral (5), Alliance Assurance Co. v. Attorney-General (6), Colonial Sugar Refining Co. Ltd. v. Attorney-General of the Commonwealth (7). The proper remedy, if any, is by a prerogative writ. Even if a declaratory judgment is given, no costs should be allowed against the Attorney-General. Dyson v. Attorney-General (1), Burghes v. Attorney-General (5). Stumm K.C. The Attorney-General is properly joined. A declaratory judgment may be made against him. Dyson v. Attorney-General, per Farwell L.J. (10). The underlying question for consideration is whether the Local Cane Prices Boards were properly constituted by Orders-in-Council. Eastern Trust Co. v. MacKenzie, Mann & Co. Ltd. (11), Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. Ltd. (12), Lofthouse Colliery Ltd. v. Ogden (13), Guarantee Trust Co. of New York v. Hannay & Co. (14). The judgment of the Court was read by SHAND J. In our opinion, the Attorney-General has been wrongly joined as a party-wrongly made a defendant in this case. The cases relied upon by counsel for the plaintiffs-Dyson v. Attorney-General (1), Eastern Trust Coy. v. Mackenzie Mann & Co. Ltd. (11), and The Colonial Sugar Refining Co v. The AttorneyGeneral of the Commonwealth (3)—were all cases of departmental (1) [1911] 1 K.B. 410, at p. 415. (4) [1901] A.C. 561, at p. 575. (5) [1911] 2 Ch. 139, at p. 155. (6) 1916, St. R. Qd. 135. (7) 1912, 15 C.L.R. 182. (10) [1911] 1 K.B. 410. (11) [1915] A.C. 750, at p. 759. (12) [1914] A.C. 237. (13) [1913] 3 K.B. 120. (14) [1915] 2 K.B. 536. (15) 1912, 15 C. L.R. 182; [1914] A.C. 237 F.C. COLONIAL Co. LTD. v. ATTORNEYGENERAL AND HOWE. Shand J aggression for the benefit of the Crown, or cases of wrongful interference by the Crown with private rights; but in the SUGAR REFINING actions now under consideration it is not alleged nor is it the fact that the Crown is seeking to support the awards of the Central Cane Prices Board, or that the Crown is in any way, directly or indirectly, interested in maintaining their validity. It also follows from the judgments delivered by the Court at the last sittings upon the various motions for prohibition, certiorari, and mandamus-The King v. The Central Cane Prices Board and Others (1) that, on the merits, the question of law referred to the Court for its opinion in this action, can only be answered in accordance with the reasons given in those judgments. The question will therefore be answered in the negative. The plaintiffs must pay the defendant's costs of these proceedings. Judgment accordingly. Solicitors for plaintiffs: Flower & Hart. Solicitors for defendant Howe: Foxton, Hobbs & Macnish, for MacDonnell & Hannam, Cairns. Solicitor for the Attorney-General: The Crown Solicitor. (1) 1917, St. R Qd. 1 1916. October 24. Real J. [IN THE FULL COURT.] CLAXTON v. CLAXTON, Ex parte CLAXTON. Deserted wife-Constructive desertion-Order to quash conviction— Wrongful admission of evidence-No evidence to support complaint-The 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. ORDER NISI FOR A QUASHING Order. . The defendant was convicted, and ordered to pay a certain sum weekly for maintenance of his wife, on a complaint that "she being a married woman, had been unlawfully deserted by her husband . . having been compelled to leave her said husband's residence under circumstances reasonably justifying her withdrawal therefrom." The defendant had a suitable home, and was at all material times willing to receive his wife therein, and to there maintain her. The wife gave evidence that she had left the defendant's house on 25th August, 1916. She was asked, What was your reason for leaving? The solicitor for defendant objected to the question; the objection was overruled, and the answer given, "I left because Susan Claxton (the defendant's daughter) told me on 24th August she had seen Mrs." X. "in bed with my husband." The daughter was called as a witness. Her evidence on this point was objected to, but was admitted, and she admitted that she had made the above statement, but she said that the statement was false. The defendant and Mrs. X. denied the truth of the statement. An order nisi calling on the complainant and the Police Magistrate to show cause why the conviction should not be quashed was granted on the grounds that there was no evidence to support the complaint; that there was no evidence that complainant had been unlawfully deserted by her husband or compelled to leave his residence under any circumstances reasonably justifying her withdrawal; that evidence was wrongly admitted; and that there was evidence of a bona fide offer by the defendant to support and provide a home for the complainant. Real moved the order absolute. There was no appearance of the respondent. Per Curiam: There is no evidence which justifies the order of the Magistrate. The evidence of what the complainant was told by the defendant's daughter was not admissible, and, indeed, the daughter, when called as a witness, admitted that her statement to the complainant was untrue. No circumstances justifying the complainant in withdrawing from the marital abode were given in evidence, and the order must be quashed. The order nisi does not ask for costs, and no costs will be allowed. Judgment accordingly. Solicitors for appellant: McGrath & Hunter. F. C. CLAXTON V. CLAXTON, Ex parte CLAXTON. |