Linehan, D.L. v. Australian Public Service Association (Four Division) [1982] FCA 220

Linehan, D.L. v. Australian Public Service Association (Four Division) [1982] FCA 220

The summonses as issued were defective by reason of the words 'or forfeiture' but the defect was one of uncertainty, not of substance; the prosecutions were validly commenced by summons upon information, and amendment to delete the surplus words does not constitute commencement of a new prosecution out of time nor cause injustice. The motions to dismiss are unsuccessful and the matters may proceed upon amendment.

Parties
Prosecutor: Desmond Lawrence Linehan (on behalf of the Industrial Relations Bureau); Defendant: The Australian Public Service Association (Fourth Division Officers)
Jurisdiction
Australia
Judgment Date
12 October 1982
Procedural Posture
Prosecution for Offence Under Industrial Law / Order and Interlocutory Ruling on Motions to Dismiss and Amendment of Summonses
Outcome
Defendant's motions dismissed; prosecutions may proceed upon amended summonses.
Legal Topics
Defects in Process, Duplicity, Uncertainty, Amendment of Summons, Prosecution Commencement, Consolidation of Proceedings
Industrial Law Criminal Procedure Defects in Process Duplicity Uncertainty Amendment of Summons Prosecution Commencement Consolidation of Proceedings

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Parties

Desmond Lawrence Linehan (on behalf of the Industrial Relations Bureau)

Prosecutor

The Australian Public Service Association (Fourth Division Officers)

Defendant

Procedural Posture

Prosecution for Offence Under Industrial Law / Order and Interlocutory Ruling on Motions to Dismiss and Amendment of Summonses

Legal Issues

  1. 1 Whether the prosecutions were validly commenced in time considering alleged defects and amendments in the summonses
  2. 2 Whether the presence of the words 'or forfeiture' in the summonses rendered them nullities or incurable for uncertainty or duplicity after the statutory prosecution deadline
  3. 3 Whether amendment of the summonses after expiry of the prosecution commencement period was permissible

Ratio Decidendi

The summonses as issued were defective by reason of the words 'or forfeiture' but the defect was one of uncertainty, not of substance; the prosecutions were validly commenced by summons upon information, and amendment to delete the surplus words does not constitute commencement of a new prosecution out of time nor cause injustice. The motions to dismiss are unsuccessful and the matters may proceed upon amendment.

Court Disposition

Defendant's motions dismissed; prosecutions may proceed upon amended summonses.

Orders

  • The defendant's motions are dismissed.
  • Strike out the words 'or forfeiture' in paragraphs 1 and 13 of each summons.