RIDER v. FREEBODY. CANTY v. MILLER. CANTY v. BAKER. Order to review-“ Person aggrieved"—Informant-Justices Act 1890 (No. 1105), 88. 141, 154-Article of food-Sale-Nature and composition-Health Act 1890 (No. 1098), ss. 43, 46. The words " person aggrieved" in sec. 141 of the Justices Act 1890 include an informant whose information has been dismissed by a court of petty sessions. A sale is effected "to the prejudice of the purchaser "within the meaning of sec. 43 of the Health Act 1890 (No. 1098), when the purchaser is supplied with an article of food wholly different to the particular article demanded by him. ORDERS TO REVIEW. RIDER v. FREEBODY. Henry Rider, an inspector of the Prahran municipality, prosecuted John H. Freebody, a grocer, in the Court of Petty Sessions at Prahran, upon information under sec. 43 of the Health Act 1890, for having sold, to the prejudice of the purchaser, an article of food—to wit, limejuice-not of the nature, substance, and quality demanded by the purchaser. Rider asked for limejuice in Freebody's shop, in Chapel-street, Prahran, and paid 6d. for a bottle of it. The "limejuice" so called was found upon analysis to contain about 96.4 per cent. of water and 2.9 per cent. of citric acid. The justices dismissed the information, with 10s. 6d. costs. The further facts necessary to the report of this case may be gathered from the judgment. CANTY V. BRUSSELS. In these cases the defendants were severally charged in the Court of Petty Sessions, Melbourne, upon information under the Police Offences Act 1890, sec. 40 (4), as occupiers of houses frequented by persons who had no lawful means of support. The justices dismissed the several informations. Orders to review these decisions obtained by the informants came on for hearing before Hodges, J. It was objected by the F.C. 1898 September 27, 28. F.C. 1898 RIDER V. FREEBODY. v. BRUSSELS. v. MILLER. v. BAKER. defendant in each case that the informant was not a person "aggrieved" within the meaning of sec. 141 of the Justices Act 1890, and was therefore not entitled to move for an order to review. Hodges, J., referred the orders to the Full Court. Argument upon the objection was heard in all the cases at the same time. Box (Cussen with him) to move the order absolute in the first case. Isaac A. Isaacs, A.G. (Finlayson with him) to move the order absolute in the other cases. Bryant for the defendant Freebody to show cause-The informant is not a "person aggrieved" within the meaning of sec. 141 of the Justices Act 1890. The governing words in the section are "aggrieved by summary conviction or by any order" (this means an order of a civil nature) “or against whom any warrant has been issued "-that is to say, a person may be aggrieved first by a conviction, second by a civil order, third where his liberty is affected. [HODGES, J. Why should an order dismissing a civil matter be different from one dismissing a criminal matter?] In the latter case a new trial cannot be had. This is what is asked here by the informant. "Order" is defined by sec. 4 of the Justices Act, but it is used with varying meanings throughout the Act. "Person aggrieved" is first used in Act No. 267, secs. 136, 151, the latter section being taken from 20 & 21 Vict., c. 42, sec. 2. The words " either party to the proceedings' are left out of, and the words "person aggrieved" inserted in, our Act. The object was not to affect third persons, but to limit the powers given. In Davys v. Douglas (a) the effect of sec. 2 of 20 & 21 Vict., c. 43, is discussed, and stress is laid upon the words "either party to the proceedings." In 6 & 7 Vict., c. 68, sec. 20, the word "aggrieved" is used. The general principle is shown in Reg. v. Duncan (b), viz., that the language destroying the fundamental principle must be clear. (a) [1859] 4 H. & N. 180; 28 L.J. M.C. 193. (b) [1881] 7 Q.B.D. 198. Counsel referred to R. v. Meyer (c); Smith v. Union Bank of London (d); Exparte Sidebotham (e), Bankruptcy Act 1879 (Eng.) 32 & 33 Vict., c. 71, sec. 71; R. v. Keepers of Peace of London (f). The object of the Act must be looked at, together with the definition: In re Reed, Bowen & Co. (g). Exparte Walter (h), referred to in Exparte Sidebotham, is practically followed in In re Langtree (i). A distinction is drawn between "person aggrieved" and "person affected": Stokes v. Checkland (k). A person dissatisfied is not necessarily a person aggrieved. An inspector is not a person who feels himself aggrieved within the meaning of sec. 141. He merely gets a statutory right to prosecute in certain cases. [WILLIAMS, J. Would not the definition in In re Reed, Bowen & Co. affect this case ?] There is no criminal element in that case. Under the Health Act 1890, secs. 329, 331, the whole penalty, if recovered, goes to the municipal council. In Attfield v. Box (l) there was merely an order for the issue of a warrant. If the warrant does not issue the person desiring it is aggrieved. If no hearing has taken place the informant has a right to demand that the proceedings be heard and determined. He is then a "person aggrieved." By sec. 154 of the Justices Act a special remedy is given if the justices refuse to hear. [A'BECKETT, J. Sec. 141 is a sort of drag-net. In In re Reed, Bowen & Co. the Judge is dealing strictly with a criminal appeal.] Sec. 141 is a combination of secs. 1 and 4 of Act No. 571. The matter has been discussed, but not decided in our Courts: Shillinglaw v. Taff's (m); O'Loughlin v. McCay (n). If there is no right to review an acquittal the mere tacking on of an order for costs will not give the right. [HODGES, J. An order to review is not like certiorari, a (c) [1875] 1 Q.B.D. 173. (i) [1894] 70 L.T. 736. (k) [1893] 68 L.T. 457. F.C. 1898 RIDER v. FREEBODY. v. BRUSSELS. v. MILLER v. BAKER. F.C. 1898 RIDER v. FREEBODY. V. BRUSSELS. CANTY V. MILLER. v. BAKER. bringing up of the proceedings below. It merely reviews them.] Mitchell (Purves, Q.C., with him) for defendant Brussels to show cause-In this case no costs were awarded against the prosecuting constable. The Court treats the words "deemed to be a person aggrieved" as equivalent to "person aggrieved:" Graves Case (0). [HODGES, J. The person in that case was really in the same position as any other member of the public.] Counsel referred to Powell v. Birmingham Vinegar Co. (p); Kennedy v. Purser (q); Reg. v. Keepers of the Peace (r); Burn's Justice (30th ed.), p. 626. Coldham for defendants Miller and Baker to show cause referred to Rex v. Middlesex Justices (s); Davys v. Douglas (t); Drapers' Co. v. Haddon (u); Rex v. Oxford (Inhabitants) (v) ; Reg. v. Russell (w); Rex v. Reason (x). [HODGES, J. The Justices Act 1890, sec. 77 (17) seems to contemplate an appeal in a case of dismissal.] The last case was followed in Rex v. Smith (y), cited in R. v. Grover, exparte Parsons (z). Where a sufficient remedy by appeal is provided by statute, no other remedy will be allowed: R. v. Fetherston, exparte Roberts (a). [Cussen-An order to review is deemed an abandonment of the right of appeal.] The Justices of the Peace Act 1865, sec. 150, limited an appeal to points of law and to an application for a case stated. As to what is an "order" within the meaning of Act No. 571, see R. v. Webster, exparte Collins (b). In In re Mercantile Bank, exparte Millidge (c), it is shown that when the word "order" is met with in a section it does not necessarily mean that the full effect of the interpretation clause is to be given to it. It has been held that where a prohibition is asked for dismissal of a case is not an order: Exparte Schneider (d). Counsel referred to R. v. Antrim Justices (e). Box in reply-The Justices Act 1890, sec. 141, decides the point. [HODGES, J. The question is whether that section gives a right of appeal in a case of dismissal.] The jurisdiction given by that section to the Court is to order a rehearing in every case where justices are wrong in law (Counsel was stopped.) [PER CURIAM. We are with you independently of the question of the award of costs.] WILLIAMS, J., delivered the judgment of the Court [WILLIAMS, A'BECKETT, and HODGES, JJ.] In all these cases a preliminary objection was taken by counsel for the several defendants. The point raised is a very important one, and appears never to have been expressly decided in this colony. The objection, shortly put, is that there is no appeal in these cases under sec. 141 of the Justices Act 1890-in other words, that an order to review cannot be obtained under sec. 141 where the defendant to an information has been acquitted, and that the defendant, once he is acquitted by the justices, is secure, so to speak, from being harassed by further proceedings in relation to the same charge, and therefore this section does not cover the case of a review of the acquittal of a defendant or of the dismissal of an information against him. Whether that is a good objection or not depends upon the construction to be placed upon the first part of sec. 141, which is as follows:-" Where any person who feels aggrieved by the summary conviction or by any order of any Court of Petty Sessions or justice or against whom any warrant has been issued by any Court of Petty Sessions justice or clerk of petty sessions shows by affidavit to a Judge of the Supreme Court sitting in Court or (d) [1872] 11 N.S. W.R. (L.) 100. (e) [1895] I. R. 2 Q.B. & Ex. 603. V.L.R., Vol. XXIV. CC F.C. 1898 RIDER v. FREEBODY. บ. BRUSSELS. V. MILLER. บ. ВАКЕК. |