De Vos v Daly [1947] HCA 12

De Vos v Daly [1947] HCA 12

Notwithstanding s. 46 of the Commonwealth Conciliation and Arbitration Act 1904-1946, a magistrate sitting in NSW as a court of summary jurisdiction, exercising Federal jurisdiction, is required to apply s. 82(2) of the Justices Act 1902-1940 (NSW) and adjudge imprisonment in default of payment of fine and costs for an offence under s. 49 of the Commonwealth Conciliation and Arbitration Act. The refusal to do so was erroneous in law.

Parties
Appellant: William Edward De Vos; Respondent: W. Daly
Jurisdiction
Australia
Procedural Posture
Appeal by Way of Case Stated / High Court Determination on Case Stated
Outcome
Appeal allowed
Legal Topics
Enforcement of Penalties, Federal Offences, Procedure in Summary Jurisdiction, Imprisonment in Default of Payment, Application of State Law in Federal Prosecutions
Industrial Law Criminal Law Federal Jurisdiction Enforcement of Penalties Federal Offences Procedure in Summary Jurisdiction Imprisonment in Default of Payment Application of State Law in Federal Prosecutions

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Parties

William Edward De Vos

Appellant

W. Daly

Respondent

Procedural Posture

Appeal by Way of Case Stated / High Court Determination on Case Stated

Legal Issues

  1. 1 Whether a magistrate sitting as a Court of Petty Sessions in NSW, exercising Federal jurisdiction, should apply s. 82(2) of the Justices Act 1902-1940 (NSW) and adjudge imprisonment in default of payment of fine and costs for an offence under s. 49 of the Commonwealth Conciliation and Arbitration Act 1904-1946
  2. 2 Whether s. 46 of the Commonwealth Conciliation and Arbitration Act 1904-1946 provides an exclusive method of enforcement, precluding application of the Justices Act (NSW)
  3. 3 Competency of appeal by way of case stated for refusal to order imprisonment in default

Ratio Decidendi

Notwithstanding s. 46 of the Commonwealth Conciliation and Arbitration Act 1904-1946, a magistrate sitting in NSW as a court of summary jurisdiction, exercising Federal jurisdiction, is required to apply s. 82(2) of the Justices Act 1902-1940 (NSW) and adjudge imprisonment in default of payment of fine and costs for an offence under s. 49 of the Commonwealth Conciliation and Arbitration Act. The refusal to do so was erroneous in law.

Court Disposition

Appeal allowed

Orders

  • Question answered by declaring that the determination of the magistrate was erroneous
  • Magistrate should have adjudged that in default of payment of the fine and costs the defendant should be imprisoned in accordance with Justices Act 1902-1940 (NSW) s. 82(2)