Howard, R.C. v. Gallagher, N.L. [1988] FCA 122

Howard, R.C. v. Gallagher, N.L. [1988] FCA 122

The Court held that s.191(2) of the Conciliation and Arbitration Act 1904 constitutes a contrary intention for the purposes of s.42 of the Acts Interpretation Act 1901, meaning that proceedings for offences under s.182 may be instituted without indictment and do not require trial by jury; s.80 of the Constitution does not require jury trial absent indictment. The informations disclosed offences even though the conduct occurred after Commission proceedings were concluded. There was no abuse of process or improper institution, and the prosecutor had standing to bring proceedings.

Parties
Prosecutor: Robert Charles Howard; Defendant: Norman Leslie Gallagher
Jurisdiction
Australia
Judgment Date
25 March 1988
Procedural Posture
Criminal / Applications for Leave to Appeal And, If Leave Granted, the Appeals From Interlocutory Orders Regarding Trial by Jury, and to Quash Informations/strike Out Summonses
Outcome
Leave to appeal granted; appeals dismissed.
Legal Topics
Trial by Jury, Abuse of Process, Indictable Offences, Summary Procedure, Jurisdiction, Construction of Statutes, Standing to Prosecute
Industrial Law Criminal Law Constitutional Law Trial by Jury Abuse of Process Indictable Offences Summary Procedure Jurisdiction +2 more

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Parties

Robert Charles Howard

Prosecutor

Norman Leslie Gallagher

Defendant

Procedural Posture

Criminal / Applications for Leave to Appeal And, If Leave Granted, the Appeals From Interlocutory Orders Regarding Trial by Jury, and to Quash Informations/strike Out Summonses

Legal Issues

  1. 1 Whether offences under s.182 of the Conciliation and Arbitration Act 1904 are indictable and require trial by jury
  2. 2 Whether s.191(2) of the Act constitutes a contrary intention under s.42 of the Acts Interpretation Act 1901
  3. 3 Whether proceedings without indictment violate s.80 of the Constitution

Ratio Decidendi

The Court held that s.191(2) of the Conciliation and Arbitration Act 1904 constitutes a contrary intention for the purposes of s.42 of the Acts Interpretation Act 1901, meaning that proceedings for offences under s.182 may be instituted without indictment and do not require trial by jury; s.80 of the Constitution does not require jury trial absent indictment. The informations disclosed offences even though the conduct occurred after Commission proceedings were concluded. There was no abuse of process or improper institution, and the prosecutor had standing to bring proceedings.

Court Disposition

Leave to appeal granted; appeals dismissed.

Orders

  • The defendant have leave to appeal from the order made on 27 October 1986 and the appeal be dismissed.
  • The defendant have leave to appeal from the order made on 17 July 1987 and the appeal be dismissed.