F.C. 1898 In re FORBES. Williams, J. one. asking that the order of 17th June 1898 be reversed, and that a rule nisi issued for a writ of certiorari should be discharged. The rule nisi was obtained from Madden, C.J., apparently upon eight grounds, some of which are merely repetitions of the same ground, and the learned Chief Justice went seriatim through these objections. We do not think it necessary to consider, and we do not express any opinion upon, any of these objections except We confine our judgment to that one (the 7th) objection, and we must not be understood to assent to the validity or otherwise of the other grounds of objection stated in the order nisi for prohibition. That seventh objection is that the said Court did not find the said W. Chalmers Forbes guilty of an offence under the Marine Act 1890 justifying the suspension of his certificate. The Chief Justice held that that objection, amongst others, was a good one, and in effect he says that the finding of the Board was too general and too vague in its terms. Without coinciding with all the reasons and illustrations mentioned in his judgment in dealing with that objection, we think his decision upon that objection right. The matter turns upon the meaning and construction of sec. 183 of the Marine Act 1890, by which the Court of Marine Inquiry is authorized to make inquiry into misconduct on the part of certificated masters of ships. That section provides that "When any such investigation is directed by the Board to be held into the alleged incompetency or misconduct of any master mate or engineer holding a certificate whether of competency or service the said Court of Marine Inquiry shall hold the same and may determine that any such certificate held by a master mate or engineer should be cancelled or suspended if such master mate or engineer upon any such investigation shall-" [And then it creates three classes of offences, as they may be termed, and provides that in the event of any such master being found guilty of offences (a), (b), and (c), his certificate may be suspended.] (a.) Be found guilty of any gross act of misconduct drunkenness or tyranny. "(b.) Be found to be incompetent. (c.) Be found to have occasioned by his wrongful act or default the loss abandonment of or serious damage to any ship or loss of life." Now, in this case the Court has purported to find Forbes guilty of an offence under class (a). The exhibit which contains their finding is exhibit G, and, omitting formal parts, it states that the Court, having carefully inquired into the circumstances of the above charge, finds that the charge of misconduct preferred against the said William Chalmers Forbes has been sustained, and that such misconduct amounts to gross misconduct. Now, we think that that finding of the Board is too indefinite and vague, and also too general, not only upon the wording, and having regard to the terms of the portion of sec. 183 to which I have alluded, but also upon general principles. That part of the section designated by the letter (a) provides—“ if he be found guilty of any gross act of misconduct." What the Court found him guilty of was of misconduct amounting to gross misconduct. What the Act says is that it has to find him guilty of a gross act of misconduct. It has not done so. Upon that ground the finding is bad. It ought to have gone further. The charge against the master was general in its terms. He was charged with misconduct. That charge may be sufficient. But when the Court comes to its finding and finds him guilty it must find him guilty of a specific act of gross misconduct. And we think that it ought to have gone further not only ought it to find him guilty of a gross act of misconduct, but it should have proceeded to specify the gross act of misconduct of which it found him guilty. Leaving the Act and adverting to general principles, it is a principle well established that a man charged with an offence. should know the nature of the offence of which he is found guilty, and from the vague and indefinite nature of this finding it is impossible even for this Court to ascertain from the finding of the Court of Marine Inquiry of what act of gross misconduct he has been found guilty. The records of the Court should always show the specific F.C. 1898 In re FORBES. Williams, J. F.C. 1898 In re FORBES. Williams, J. offence of which a man has been found guilty, and in respect of which his certificate has been suspended. Upon that ground we sustain the finding of the Chief Justice, and dismiss the motion, with costs. Motion dismissed. Solicitor for William Chalmers Forbes: Croker. Solicitor for the Marine Board, etc.: Guinness, Crown Solicitor. R. H. C. 1898 November 24. Hood, J. [IN CHAMBERS.] PEARCE. TOWER MANUFACTURING AND NOVELTY COMPANY. A foreign company is not carrying on its business in Victoria by reason only of the fact that it employs a commercial traveller resident in Victoria to receive orders on commission and to transmit them to its office abroad. SUMMONS IN CHAMBERS. Lydia Pearce, trading as the Kalizoic Company, entered into an agreement in November 1897 with William Lewis, as agent for the Tower Manufacturing and Novelty Company, a foreign company carrying on business in the United States of America, for the purchase of certain goods by sample from the latter company. The goods were paid for by draft. The goods were delivered after the draft was met; but some of them were alleged to be not in accordance with the sample. After some negotiation Pearce issued a writ against the Tower Company, claiming damages in respect of the alleged breach of contract, and served it upon one Charles Bott, at No. 284 Post-Officeplace, Melbourne, upon premises having the name of the defendant company inscribed outside upon a brass plate. Upon an application on motion for that purpose by the defendant company, Hood, J., set aside the service of the writ upon the ground that the affidavits filed on behalf of the defendant showed that Bott was not an agent of the company for the acceptance On a of service, but was the servant of William Lewis, the agent of the company, who resided in New South Wales. subsequent date Hood, J., made. an order exparte that substituted service should be effected upon the defendant company by serving Bott and Lewis. The defendant company now applied on summons to set aside the order for substituted service. W. H. Williams for the defendant company. J. E. Mackey to oppose. During argument reference was made to-Newby v. Von Oppen (a); Haggin v. Comptoir d'Escompte de Paris (b); The Companies Act 1896 (No. 1482), sec. 70 (3); Rules of Supreme Court 1884, Order IX., r. 8; Grainger & Son v. Gough (c). HOOD, J. The defendant company is a manufacturing company, registered in New York, where it carries on its business, and it has an agent in Sydney, one Lewis, whose power of attorney is somewhat limited, but whose business is to sell the goods of the company to any person in these colonies. There was no statement as to how Lewis was to be paid, but I draw the conclusion that he was to be paid by commission. Lewis employed a person named Bott to obtain orders for the company's goods from people in Melbourne. Lewis himself was in the habit of visiting Melbourne two or three times a year, and when his business here was done he transmitted the orders he had obtained to the company in New York, where they were fulfilled by the goods being sent to Lewis, who did not hand them over until a draft for them had been accepted or the goods had been otherwise paid for. The company, either through Lewis or through Bott-it is not clear which of them, Lewis, I think-made a contract with the plaintiff Pearce for the sale of certain goods. Pearce, being dissatisfied with the performance of it by the company, issued a writ against the latter (b) [1889] 23 Q.B. D. 519. (a) [1872] L. R. 7 Q. B. 293. (c) [1896] A. C. 325. 1898 PEARCE v. TOWER MANUFACTURING AND NOVELTY COMPANY. Hood, J. 1898 PEARCE v. TOWER MANUFACTURING AND NOVELTY COMPANY. Hood, J. for breach of contract. In the first instance the writ was served on Bott. I set aside this service upon the ground that there was in the affidavits filed on the company's behalf an uncontradicted statement by Lewis that Bott was his clerk and was not connected with the company. The plaintiff then obtained an exparte order for substituted service of the writ upon the company by serving it upon Lewis and Bott, upon the ground that the company was carrying on business here, and that one of them was its manager or chief officer. This application is now made to set aside the order for substituted service on the ground that the company was not carrying on business here. I think the point raised by the company a shabby and contemptible one, and if it succeeds it will leave the plaintiff practically without remedy. At first I felt disposed to dismiss this summons and compel the plaintiff to appeal against my decision, in order that full publicity might be given to the matter. But from the affidavits filed and read before me I think full publicity will be given to the matter, as the company's customers will now see that they are compelled, if they desire to sue the company, to travel to New York in order to do so. I therefore decide the case for myself. The company does not, as a matter of fact, carry on its business here. The mere fact that a commercial traveller is employed by it for the taking of orders here is not sufficient. It would never do to hold that the employment of a commercial traveller meant the carrying on of business so as to make service on that traveller a sufficient service. I arrive at this conclusion with great regret. I shall allow the application, but without costs. I hope, if the plaintiff can find no other remedy, that she will be able to appeal and upset this decision. Summons allowed; service set aside. Solicitors for the plaintiffs: Fox & Overend. R. H. C. |