F.C.

WHITE . WHITE (No 2).

Lukin J.

LUKIN J. Had this appeal been competent, many questions of law might have arisen for consideration which on the view now taken upon the preliminary point-that there is no right of appeal to the Court, as the decision of the learned Judge is final-become unnecessary to decide.

I propose to deal with the only two relevant questions:(1) Whether there was an appeal from the Police Magistrate to Shand J.? (2) Whether there is an appeal from Shand J. to this Court?

(1) As to the right of appeal to Shand J.: Under The Justices Act of 1886 appeals to a District Court or Court of Quarter Sessions were, before the passing of The Supreme Court Act of 1921, regulated by the provisions contained in ss. 237-250 of that Act. Under The Supreme Court Act of 1921 District Courts have been abolished by s. 3, sub-sec. 3; and whenever in the repealed Act or any other Act any jurisdiction is conferred on a District Court or a Judge of the District Court, such Act shall be read and construed as if the Supreme Court or a Judge of the Supreme Court were respectively referred to. By sub-sec. 4. where in any repealed Act provision is made for an appeal to a District Court or Court of General or Quarter Sessions, and no other court of appeal from such decision is specified, the appeal shall be taken to the Supreme Court or a Judge thereof. Such Judge may, if he thinks fit, refer any question of law arising upon such appeal to the Full Court.

It was contended for the appellant that the learned Judge had no jurisdiction to hear and determine the appeal to him, as the order made by the Police Magistrate was not an order within the meaning of s. 237 of the Justices Act, because it did not come within the definition of "order" contained in s. 4 (interpretation clause) of the Justices Act. I am inclined to agree that the order actually made by the Magistrate does not come within the definition contained in that section. That definition, however, is expressly made subject to the qualification "unless the context otherwise requires." Is the word "order" in the clause “as against whom an order is made by Justices" to be confined to the restricted meaning contained in the interpretation section, or does the context require its natural and more extended meaning? Section 237 and its following sections dealt, before the amendment, with all appeals given expressly by the terms of other Acts to the District Court, and deals, since the amendment, with the same

Lukin J.

appeals, now expressly given to the Supreme Court for the purpose F.C. of regulating the appeals from Justices so given by other Acts. WHITE WHITE (No. 2). It is quite clear that s. 10 of The Deserted Waves and Children Act by the use of the words" and every person feeling aggrieved by any order shall be entitled to appeal therefrom" gave the respondent in this Court--the appellant before Shand J.-the right of appeal, for it cannot, I think, be disputed that the order made by the magistrate was an order within the meaning of The Deserted Wives and Children Act, whatever it may be under The Justices Act. It is also quite clear, under s. 3, sub-secs. 3 and 4 of The Supreme Court Act of 1921, that there is a right of appeal to a Judge of the Supreme Court from such order made under such Act. Then, sections 237 and the following sections of the Justices Act were the only, and were obviously intended to be, sections making provision for regulating all appeals to the District Court or Court of Quarter Session given under either Acts. Such being the case, in my opinion the context requires the same meaning to be applied to the word "order" in both the Acts referred to that is to say, the ordinary and natural though extended meaning of the term, and not the restricted meaning contained in the interpretation section of The Justices Act. The remarks of the Privy Council in the case of Lennon v. Gibson & Howes Ltd. (1) on words in a Queensland statute seem to be appropriate. Lord Shaw said: "It appears plain to their Lordships that these meanings are to be so given only where the context so permits, and that in (the relevant section) the context

prevents the attachment of a non-natural or artificially limited meaning to very plain and general words." In my opinion, then, under the joint effect of s. 10 of The Deserted Wives and Children Act, of s. 4 of The Supreme Court Act of 1921 (supra) and of the provisions of The Justices Act referred to, the appeal to Shand J. was in accordance with the express words of those sections properly brought before, and determined by him.

2. Then arises the question, "Is there an appeal from Shand J. to this Court?" Section 237 of The Justices Act and the following section being applicable, the operation of s. 3, sub-sec. 3 of The Supreme Court Act of 1921 on s. 242 renders it necessary to read s. 242 in these words (unnecessary parts being omitted)" The Judge of the Supreme Court shall hear and determine the matter of the appeal and such decision shall be final between (1) [1919] A.C., 709 at p. 714.

Lukin J.

F.C. the parties." The finality of decision is subject, of course, to WHITE U. WHITE s. 245, which enables the Judge to state a special case on a question (No. 2). of law, and to the last paragraph of s. 4 of The Supreme Court Act of 1921 which enables the Judge to refer the appeal to the Full Court, neither of which happened in this case. Subject to these qualifications the word "final" in s. 242 means, I think, what it says, that both in law and in fact it is the final and unalterable judgment of the State Courts on the matter. Many instances occur in our statutes where the judgments of a Court are made final in matters within its jurisdiction-e.g., The Small Debts Act, 1867, s. 34.; The District Court Act of 1891, s. 144.

O'Sullivan J.

It was contended that s. 10 of The Judicature Act, and O. LXX of the Rules of Court thereunder, conferred on the present appellant a right of appeal to this Court, but that argument is met and overcome by the contention that The Judiccture Act is a general enactment, and subject to the later special and particular enactment which limited the right of appeal in the manner therein prescribed. Where there is a general provision which if applied in its entirety would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision in so far as it is inconsistent with the special provision, must be deemed not to apply. Per O'Connor J. in Goodwin v. Phillips (1). It follows then, in my opinion, that this appeal is misconceived and incompetent and must be dismissed, and being an unsuccessful and legally unjustifiable one by a husband against his wife, I do not see how we would be justified in doing other than making the usual order as to costs. If an authority be needed to justify the order in regard to costs I think the case of Pritchard v. Howard Smith & Sons Ltd (2) is sufficient.

O'SULLIVAN J. I concur in the dismissal of this appeal on the ground that the decision of Shand J. is final between the parties so far as this Court is concerned. As the Full Court is precluded from considering the appeal on its merits, and as the question of our jurisdiction to hear such an appeal now arises for the first time, and is a question of some difficulty, I think the dismissal of the appeal should be without costs.

Appeal dismissed with costs.

Solicitors for appellant: McSweeny & Wilford.

Solicitor for respondent: J. Crawford.

(1) 1908, 7 C.L.R. 1 at p. 14.

(2) 1891, 4 Q.L.J. 64

[IN THE SUPREME COURT.]

LACEY AND OTHERS v. SHANKS AND OTHERS. Friendly Society-Suspension of branches by Grand Lodge executive for disobedience of rule-Rule invalid―Injunction-Resolution of Grand Lodge-Internal dispute-Jurisdiction of Court to interjere The Friendly Societies Act of 1913 (4 Geo. V., No. 13), ss. 2, 13, 20, Second Schedule, clauses 37, 40.

1923.

Shand J.

The Friendly Societies Act of 1913 provides (s. 20): The provisions set forth in the Second Schedule to this Act governing the business proceedings and property February 21, 26. of societies shall be observed. The Second Schedule, clause 40 (1) states: Every dispute between a member or person claiming through a member or under the rules and the Society or branch or an officer thereof, or between any registered branch or an officer thereof and the registered Society or branch of which the other party to the dispute is a registered branch or an officer thereof, and or between any two or more registered branches or an officer thereof, or between any two or more registered branches or any registered Society or branch or any officers thereof respectively shall be decided in manner directed by the rules. (2) The decision so made shall be binding and conclusive on all parties without appeal, and shall not be removable into any Court of law or restrainable by injunction.” Rule 63 of the Society's rules provides: Should any dispute arise between the Board of Directors and any lodge or officers, the party aggrieved by the action of the Board may appeal to the Grand Lodge against such action.

Prior to the meeting of the United Ancient Order of Druids (Grand Lodge of Queensland), a society registered under The Friendly Societies Act of 1913, held in April, 1922, the Board of Directors of the Society gave notice of a proposed amendment of the Society's laws or rules by the addition of a new rule providing for a levy of threepence per quarter payable by all members on account of a monthly paper which was being published by the Society. The proposed new rule was adopted by the Society at its April meeting, but was never approved by the certifying barrister. Section 2 of the Friendly Societies Act provides that an amendment of the rules includes a new rule, and s. 13 provides that no amendment of a rule shall be valid until it has been approved by the certifying barrister and registered under the Act. Rule 47 of the Society's rules provides, inter alia, that : "Each lodge shall contribute to the management fund ninepence per quarter for each member good on the books, or such other amount as may be fixed by the Grand Lodge in session." In July, 1922, the Board of Directors passed a resolution that the payments from the various branches to the management fund of the Grand Lodge be ninepence and threepence per quarter as from the first day of July, 1922, the latter payment being, as the branch lodges were advised, on account of the monthly paper. Certain lodges refused to collect or forward the levy of threepence to the Board of Directors, who thereupon suspended those lodges.

LACEY AND

OTHERS . SHANKS AND OTHERS.

Clause 37 (2) of Schedule II. of the Act provides that no society shall suspend any branch from benefit except for default in payment of a penalty imposed on the branch or of any contribution or levy payable by the branch in accordance with the rules.

In an action instituted by the trustees of six suspended lodges against the Board of Directors and the Trustees of the Society, in which the plaintiffs claimed an injunction restraining the defendants and the Society from enforcing or endeavour. ing to enforce the levy of threepence per member, and restraining the defendant directors from suspending or continuing to suspend the lodges in question, it was agreed that the motion for an interlocutory injunction should be taken as the hearing of the action, and on such hearing it was

Held, that under the circumstances of the case, the jurisdiction of the Court was not ousted by the provisions of s. 20 of the Act or of the Second Schedule thereto; and further

Held, that the resolution of the Board of Directors purporting to increase the payments to the management fund was invalid, and that the Board of Directors in suspending the six lodges was not administering the Act or the rules of the Society.

ACTION FOR INJUNCTION.

The plaintiffs, John Lacey and others, were and claimed as the trustees of six of the lodges or branches of the United Ancient Order of Druids (Grand Lodge of Queensland), a society registered under the provisions of The Friendly Societies Act of 1913 (4 Geo. V., No. 13); the defendants were and were sued as the Board of Directors or as trustees of the said Society.

The indorsement on the writ claimed certain declarations and an injunction restraining the defendant directors and the Grand Lodge of the society from enforcing or endeavouring to enforce a levy made by the Board of Directors on the said lodges, and restraining the said Board of Directors from suspending or continuing to suspend the said lodges.

Notice was given of an application for an interlocutory injunction, and the application was, by consent, treated as the hearing of the action for an injunction, and was heard by Shand J. on February 21st, 1923.

The facts and the relevant provisions of The Friendly Societies Act and the Second Schedule thereto appear in the head-note, or in the judgment, or in the reports of counsels' arguments.

Lehane for the plaintiffs.

Walsh for the defendants other than Holt.