The attention of the Profession is directed to the following Rules of Court as of Saturday, the twentyfirst day of April, 1917 :— AMENDMENT OF O. LXXI., R. 48. It is ordered by the Honourable Sir Pope Alexander Cooper, Knight Commander of the Most Distinguished Order of St. Michael and St. George, Chief Justice of Queensland, the Honourable Patrick Real, Esquire, Senior Puisne Judge, the Honourable Charles Edward Chubb, Esquire, the Honourable William Alfred Byam Shand, Esquire, and the Honourable Lionel Oscar Lukin, Esquire, Justices of the Supreme Court of the said State, in pursuance of all powers and authorities enabling them in this behalf as follows: The Rules of the Supreme Court shall be and are hereby amended as follows: 66 In Rule 48 of Order LXXI. the words "or the Bond or Policy of the State Insurance Commissioner " shall be inserted after the words approved by a Judge" and before the words "may be accepted." And the words "or the State Insurance Commissioner" shall be inserted after the words "Joint Stock Company" in the third paragraph of the said Rule. And the words "or of the State Insurance Commissioner" after the word "Company" at the end of the said Rule. POPE A. COOPER, C.J. W. A. B. SHAND, J. CHAS. S. NORRIS, Registrar. 15. Practice-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. The Crown was not directly or indirectly interested in maintaining the validity of the award. Held, that the Attorney-General was wrongly joined as a party. COLONIAL SUGAR REFINING CO. LTD. v. ATTORNEY-GENERAL AND HOWE, 23rd October and 11th December, 1916, FULL COURT (Cooper C.J., REAL, CHUBB, SHAND, AND LUKIN JJ.). Counsel: Stumm K.C. and Walsh (for Hart, on active service with His Majesty's Forces); Wassell and Hobbs; Ryan A.G. and Real (for Henchman, on active service with His Majesty's Forces). Solicitors: Flower & Hart; Foxton, Hobbs & Macnish, for MacDonnell & Hannam, Cairns; The Crown Solicitor. THE QUEENSLAND LAW REPORTER. MAY 4, 1917. 16. Industrial law-Arrears of wages under Sugar Award—Plaint not made within ninety days--Extension of time not asked forPlaint not proceeded with within sixty days after making claim -Appeal from Industrial Magistrate-Industrial Peace Act of 1912 (3 Geo. V.. No. 19), s. 31-Industrial Arbitration Act of 1916 (7 Geo. V., No. 16), s. 64. APPEAL TO COURT OF INDUSTRIAL ARBITRATION. A plaint was made under s. 64 of The Industrial Arbitration Act of 1916 on 10th February, 1917, for balance due for work and labour done by the plaintiff for the defendant company from 14th to 28th August, 1916. Plaintiff was paid at the rate prescribed in the award made on 27th May, 1914, prescribing rates of wages for workers in the sugar industry. On 29th September, 1916, an award was made by Dickson A.J.I.C. granting an increased rate, and the award was made retrospective as from 1st July, 1916. The plaintiff claimed the difference between the rate prescribed in the award of 29th September, 1916, and the rate paid. The evidence showed that in September, 1916, plaintiff made a claim in writing for the amount alleged to be due in accordance with s. 31 of The Industrial Peace Act of 1912, but did not prosecute his claim within sixty days as prescribed by that section. At the hearing of the plaint the defendant's solicitor asked for a dismissal, on the ground that the proceedings had not been brought within ninety days after the money became due, as required by s. 64 of The Industrial Arbitration Act of 1916. The Industrial Magistrate dismissed the plaint. The plaintiff appealed to the Court of Industrial Arbitration. The facts of the case are sufficiently stated in the judgment of the Court, which was delivered by MCCAWLEY J. This is an appeal from the decision of Mr. R. B. Hetherington, Industrial Magistrate at Bundaberg, dismissing an application made in pursuance of subsec. 2 of s. 64 of The Industrial Arbitration Act of 1916. The applicant, David Muir, sought from the Industrial Magistrate an order that the Fairymead Sugar Company Limited should pay him the sum of £6 13s. Sd., being the balance alleged to be due for work and labour done from the 14th to 28th August, 1916, for which work the price or rate had been fixed by an award of the Industrial Court of Queensland, published in the Government Gazette, dated 15th September, 1916. The solicitor for the defendant company asked for dismissal, on the ground, amongst others, that the proceedings were too late, as, under s. 64 of The Industrial Arbitration Act of 1916, proceedings had to be brought within ninety days after any such money became due. The proceedings were commenced on 10th February, 1917, so that the point taken is fatal to the appellant, unless he can show that the Court or an Industrial Magistrate allowed an extension of the time. The papers before the Court contain no record of any request for the allowance of any extended time, nor of any allowance having been made. The appellant, however, suggested that the Industrial Magistrate had, in fact, extended the time, and it was thought advisable to ascertain the facts from the Magistrate. The Registrar accordingly depatched a telegram to the Industrial Magistrate, who has replied, "No application made on behalf of complainant to extend time of ninety days mentioned in s. 64, Industrial Arbitration Act, and none granted." It is therefore clear that on this point alone the Industrial Magistrate's decision was justified in law. As this is sufficient to dispose of the appeal, the Court finds it unnecessary to express any opinion upon the other questions raised, including the question whether an employee who, when The Industrial Arbitration Act of 1916 came into operation, had already allowed the expiry of the period of 60 days from the date of his claim (the time limited for proceedings by s. 31 of The Industrial Peace Act of 1912), can, nevertheless, proceed under s. 64 of the present Act as to which reference may be made to the observations of Channell J. in Rex v. Chandra Dharma ([1905] 2 K.B. 335, at p. 339). Appeal dismissed, with £10 10s. costs. Muir v. The FAIRYMEAD SUGAR COMPANY LIMITED, Ex parte MUIR, 12th and 13th March, 1917, COURT OF INDUSTRIAL ARBITRATION (MCCAWLEY AND MACNAUGHTON JJ.). Counsel: Mahoney; Stumm K.C. and Grove. Solicitors: E. E. Quinlan; Morris & Fletcher. 17. Fencing Dividing fence-Contribution to cost of repair-Equal proportions-The Fencing Act of 1861 (25 Vic., No. 12), 88. 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, 23rd and 24th October, 1916, FULL COURT (COOPER C.J., CHUBB, SHAND AND LUKIN JJ.). Counsel: Neal Macrossan; McGill. Solicitors: W. R. Scott, for Summerville & Delaney, Ipswich; Osborne & Waugh, for Bowman & Darvall, Boonah. 18. 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. APPLICATION IN CHAMBERS. The applicant, M. P. Hanly, as attorney for T. M. Hanly, a sergeant in the Australian Imperial Forces on service abroad, had been managing a farm near Dalby, which was the property of T. M. Hanly, for two years, during which time T. M. Hanly had enlisted in 1914, and had been on active service, with the exception of a small period of time during which he had been invalided home to Australia. The farm, with other property of T. M. Hanly, had been mortgaged to the Queensland National Bank Limited in 1911 to secure repayment of moneys advanced by the bank to the mortgagor, which at that time amounted to a sum of £3705 13s. 4d. On the 27th July, 1916, the bank went into possession of the mortgaged property, and were still in possession at the date of the application. During its possession the Bank took off the property and sold a crop of wheat which had been planted on the farm before the date on which possession was taken. After paying working expenses and crediting the mortgagor's account with a half-yearly payment of interest, the bank credited the account with the balance of the proceeds of the crop, thus reducing the account from the sum of £2569 12s. 9d., at which it stood on June 30, 1916, to £2302 16s. 2d., which was shown as the balance owing on January 19th, 1917. The mortgage contained provision whereby interest under the mortgage was payable half-yearly, but deemed to accrue due from day to day and on the respective half-yearly balancing days of the mortgage all interest then accrued due was to be treated as if converted into principal, and also provisions empowering the mortgagee on taking possession to lease for a term or terms of years not exceeding twenty-one years. On the hearing of an application by motion in Chambers, on behalf of the mortgagor, forbidding the Bank from exercising any power of sale or foreclosure under the mortgage, and for an order restoring to the mortgagor's attorney possession of the mortgaged property: Walsh (for Hart, serving with His Majesty's Forces), for the applicant, referred to Statutory Rules, 1916, No. 163, rr. 3, 8, 9; 1916, No. 283, rr. 2, 3, 13; 1916, No. 284, rr. 2, 4, 8; 1917, No. 13, r. 3. Feez K.C. (Macgregor with him), referred to Statutory Rules, 1917, No. 13, r. 2, and contended that there was no jurisdiction to order a mortgagee to vacate the mortgaged property where the mortgagee had taken possession prior to the issue of the Regulations. THE QUEENSLAND LAW REPORTER. MAY 4, 1917. SHAND J. stated that, although he inclined to the opinion that the mortgagee was not entitled to remain in possession after a half-yearly payment of interest had been made, and that as the time for any payment of principal money secured by a mortgage had been postponed so that such payment should fall due upon the expiration of six months after the war (Statutory Rules, 1916, No. 163), the mortgagee could not, against the wish of the mortgagor, apply any portion of the proceeds of the crop in reduction of the principal debt owing by the mortgagor, yet he thought he had no power on this application to order the mortgagee to vacate the mortgaged property; and he made the following order: Without prejudice to any further relief to which the applicant may be entitled under Statutory Rules, 1916, No. 283, the Queensland National Bank Limited is forbidden to exercise any power of sale, foreclosure, or lease without prior application to the Court. The applicant is to have the costs of this application." In re THE WAR PRECAUTIONS ACT OF 1914-1916, AND THE WAR PRECAUTIONS (MORATORIUM) REGULATIONS AND In re HANLY AND THE QUEENSLAND NATIONAL BANK LTD., 12th February, 1917, SHAND J. IN CHAMBERS. Counsel: Walsh; Feez K.C. and Macgregor. Solicitors: Ure & Ure, Agents for W. R. Ross, Clifton ; Flower & Hart. 19. Industrial Peace Act of 1912-Industrial award-Breach of award-Complaint for breach of industrial award—Dismissal of complaint by Magistrate-Appeal to Industrial Court by special case-Reference back by Industrial Judge for finding of further facts-Fresh evidence taken-New findings of fact by Magistrate-Submission of fresh evidence and findings to Industrial Court-Further reference to Magistrate with opinion of Industrial Judge that conviction should be entered-Conviction by Magistrate-Jurisdiction of Industrial Court to direct taking of fresh evidence-Prohibition-The Industrial Peace Act of 1912 (3 Geo. V., No. 19), ss. 11, 16, 51-The Justices Act of 1886 (50 Vic., No. 17), s. 226. At the hearing by a Police Magistrate of a complaint made under The Industrial Peace Act of 1912 for a breach of an industrial award made under that Act, the Magistrate dismissed 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, notwithstanding 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 otherwise certain facts not previously found, was acting beyond his power and outside his jurisdiction, the conviction was ultra vires, and the order nisi for prohibition should be made absolute. THE KING . THE INDUSTRIAL COURT OF QUEENSLAND AND OTHERS, Erx parte CENTRAL MILL COMPANY LIMITED, 24th and 25th October and 15th December, 1916. FULL COURT (COOPER C.J., SHAND AND LUKIN JJ.). Counsel: McGill; Ryan A.G. and Mahoney (for Henchman, serving with His Majesty's Forces). Solicitors: Foxton, Hobbs & Macnish, Agents for MacDonnell & Hannam, Cairns; The Crown Solicitor. 20. 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. CLAXTON V. CLAXTON, Ex parte CLAXTON, 24th October, 1916, FULL COURT (REAL, CHUBB, SHAND, LUKIN JJ.). Counsel: Real. Solicitors: McGrath & Hunter. 21. The Industrial Arbitration Act of 1916-Workers-StrikeJurisdiction of Court to make award giving preference to Unionists. CASE STATED FOR THE OPINION OF FULL BENCH. The special case submitted by the learned President to the Full Bench was as follows: “A strike of certain employees of the Mount Morgan Gold Mining Company has taken place. Assuming that the employment of non-unionists is a contributory cause of the strike, has the Court, on the hearing of an application by any party on that behalf, jurisdiction to order or award (a) preference to unionists, (b) that the employer shall make it a condition of engagement, continuance of employment, or re-employment of non-unionists that they shall become members of a union, (c) that the employer shall discontinue the employment of any worker who fails to become a member of a union if there is a member of the union qualified and ready and willing to perform the work required to be done?" The following judgments were delivered : THE PRESIDENT: The determination of this case involves the consideration of the powers of the Court under The Industrial Arbitration Act of 1916 in relation to the granting of preference to unionists. The contention of the Mount Morgan Gold Mining Company is, in effect, that disputes as to preference to unionists must be decided by strikes and lockouts, that the Court is powerless to award or order preference. 66 66 The Court has power to hear and determine any question arising out of an industrial matter (s. 7). The term industrial matters is defined by s. 4 as meaning "matters or things affecting or relating to work done or to be done, or the privileges, rights, or duties of employers or employees, or of persons who have been or intend or propose to be or may become employers or employees The term includes (paragraph (b) of the definition) "the qualification or status of employees, and the mode, terms, and conditions of employment or non-employment, including the question whether any persons shall be disqualified for employment ."; paragraph (d) the employment of any person or persons or class of persons or a claim to dismiss or to refuse to employ any particular person or persons or class of persons, or any question whether any particular person or persons or class of persons ought (having regard to public interests, and notwithstanding the common law rights of employers or employees and notwithstanding the provisions of any Act, or any rules or regulations authorised thereby) to be continued or reinstated in the employment of any particular employer." Paragraphs (g) and (i) also are relevant. These provisions, apart altogether from the extended definition of industrial matters provided by paragraph (1), to which I shall later refer, are sufficient to enable the Court to award preference to unionists in an industrial dispute. It |