e Commonwealth. BAILEY Boa aes DEFENDANT, *The Justices Act 1902 (N.S.W.), e. 101 (1), provides that 'any party e proceedings, if dissatisfied with letermination by any justice or in the exercise of their summary iction of any information or com- as being erroneous in point of »may . . . apply in writing to 'said justice or justices to state and nacase . . , setting forth the and grounds of such determination AND OF AUSTRALIA. Rule nisi discharged. ' Solicitor for the appellant, J. G. Tenison Woods. Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for B.L. (HIGH COURT OF AUSTRALIA.) APPELLANT 3 RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. When an information for an offence against the provisions of the Pure Food Act 1908 (N.S.W.) is dismissed by a Stipendiary or Police Magistrate in the exercise of his summary jurisdiction, the prosecutor has the right of appeal for the opinion thereon of the Supreme Court." The Public Health Act 1902 (N.S.W.), see. 107, provides, by sub-sec. 1, that * penalties imposed by this Act .. . may be recovered before, and offences against this Act may be heard and determined by, a police or stipen- diary magistrate or any two justices in petty sessions in a summary manner according to the provisions of the Act or Acts for the time being regulating H.C. or A. 1925-1926. Tae Kine vw Deputy FeperaL Commis- SIONER OF TAXATION (S.A.) 5 Ex PARTE Hooper. Food—Offence—-Dismissal of prosecution—Right of prosecutor to appeal—Pure 4. ©. ox A. Food Act 1908 (.S.W.) (No. 31 of 1908), secs. 1*, 10, 36, 39, 40*—Public Health Act 1902 (N.S.W.) (No. 30 of 1902), secs. L07*, 109—Justices Act 1902 (N.S.W.) (No. 27 of 1902), secs. 4, 101*—TInterpretation Act 1897 (N.S.W.) (No. 4 of 1897), 1926. ae Sypney, Mar. 30 ; April 12. Knox 0.J., Isaacs and Gavan Duffy JJ. H.C. or A. 1926. Kencn Battey. HIGH COURT by way of special case given by sec. 101 of the Justices Act 1902 (N.S.W.) there being nothing in sec. 107 of the Public Health Act 1902 (N.S.W.) whi assuming the prosecutor not to be a "person aggrieved," takes away th right. Decision of the Supreme Court of New South Wales (Full Court): Keng v. Bailey, (1925) 26 $.R. (N.S.W.) 36, reversed. AppeaL from the Supreme Court of New South Wales. an information was heard whereby Arthur Kench charged Francis Walter Bailey with an offence against the provisions of the Pure Food Act 1908 (N.S.W.), namely, selling adulterated milk. information having been dismissed, the informant appealed to Supreme Court by way of special case, pursuant to sec. 101 of the Justices Act 1902 (N.S.W.). The Full Court, by a majority (Stre C.J. and Ferguson J., Campbell J. dissenting), dismissed the ap on the ground that the informant had no right to appeal: Ke v. Bailey (1). From that decision the informant now, by special leave, appealed to the High Court. q K. W. Street (with him W. J. V. Windeyer), for the appellant. the Pure Food Act 1908 stood alone, unaffected by the Public Health Act 1902 (N.S.W.), where a prosecution under the former Act was dismissed the prosecutor would have a right of appeal under sec, 101 of the Justices Act 1902. Assuming that the prosecutor in an unsuccessful prosecution is not a " person aggrieved," sub-sec. 2 of sec. 107 of the Public Health Act 1902 does not take away the right of appeal given by the Justices Act 1902. That sub- section is an enlarging provision, and not a limiting provision, and contains no negative words which would cut down that right; and sec. 109 of the Public Health Act 1902 shows that the right of gs before justices"; and, by with the Public Health Act 1902; and, proce' sub-sec. 2, that "any person aggrieved by sec. 40, provides that "penalties ant by any judgment, conviction, or order forfeitures imposed by or under th given or made under this section may Act . . . may be recovered appeal therefrom in the manner pro- enforced in a summary way by astipen- vided by the Justices Act 1902." 'The diary or police magistrate or any Pure Food Act 1908 (N.S.W.), by sec. 1, justices in petty sessions." provides that this Act shall be construed (1) (1925) 26 S.R. (N.S.W.) 36. OF AUSTRALIA. Tf sec. 107 of the Public Health Act was intended to govern in respect of prosecutions for offences under the Pure Food then sec. 40 of the latter Act was unnecessary. [Counsel was . W. Shand, for the respondent. By virtue of sec. 1 of the Pure Act 1908 and sec. 12 of the Interpretation Act 1897 (N.S.W.) the Food Act 1908 is to be read as if it were a part of the Public Act 1902 (see Bedingfeld v. Keogh (1) ; Sweeney v. Fitzhardinge That being so, sec. 107 of the Public Health Act by sub-sec. 1 es the procedure for recovering penalties imposed by the Food Act and by sub-sec. 2 establishes the class of persons to yhom alone a right of appeal is given. Sec. 40 of the Pure Food {ct was inserted in order to provide for the recovery of forfeitures, nd the word " penalties " should be disregarded as being surplusage. en if sec, 40 applies to informations, sec. 107 of the Public Health {ct must still be looked at to find who is entitled to appeal. There nothing in the Pure Food Act which can be regarded as a repeal of sec. 107 of the Public Health Act. The provisions of sec. 109 the Public Health Act apply only to rights and remedies which hen existed and to offences and penalties which had already been Cur, adv. vult. following written judgments were delivered :— x C.J. anp Gavan Durry J. The only question raised by of appeal by way of special case given by sec. 101 of the Act 1902. In the Supreme Court it was decided by the y of the Full Court (Street C.J. and Ferguson J., Campbell J. ing) that no such right existed. The decision was founded he view that the case was governed by sec. 107 (2) of the Public th Act 1902, which gives a right of appeal only to "a person (2) (191213 CLR. 6oL, at p. 606. (2) (1906) 4 CLR. 716. il given by the Justices Act 1902 was not intended to be taken H. C. or A. 1926. Kencn v BalLey. April 12. H.C. or A. 1926. Kencu v BAILey. Knox 0.3. Gavan Duffy J. HIGH COURT aggrieved," it being admitted in argument in the Supreme Court that a disappointed prosecutor did not come within that description. The question turns on the provisions of the Acts above referred to, The information in this case charged an offence against the provisions of sec. 10 of the Pure Food Act. Sec. 36 of that Act prescribes penalties for offences against its provisions; and sec. 39 provides, in case of conviction, for the forfeiture by order of the magistrate of the article to which the conviction relates. Sec. 40 is in the words following: " Penalties and forfeitures imposed by or under this Act or the regulations may be recovered and enforced in asummary way by a stipendiary or police magistrate or any two justices in petty sessions.'" Sec. 4 (1) of the Justices Act 1902 is in the words following,: 'Where by any Act, past or future, or by any rule, regulation, or by-law made under or by virtue of any such Act, any person is made liable to imprisonment or other punishment, or to any fine, penalty, or forfeiture. or to pay any sum of money or costs, for any offence, act, or omission, upon the: conviction or order of a justice or justices, it shall be deemed to be provided that the matter shall be heard and determined by a justice or by two or more justices, as the Act dealing with the matter may prescribe, in a summary manner, according to the provisions of the Act or Acts for the time being regulating proceeding: before justices, although no such provision be expressly made in the Act dealing with the matter; and the matter shall be so heard and determined accordingly." If these were the only provisions to be considered, it would clear—indeed, it is not denied—that sec. 101 of the Justices Ai 1902, which gives to any party to the proceedings, if dissatisfied with the determination of justices as being erroneous in point of law, the right to appeal by way of case stated to the Supreme Court, would apply. But it is said that the joint effect of sec. 1 of the Pure Food Act, sec. 12 of the Interpretation Act 1897 and sec. 107 (2) of the Public Health Act is to deprive the prosecution of such right of appeal. The argument may be stated thus :—The title of the Pure Food Act shows that it is an Act to amend the Public Health Act 1902, and sec. 1 provides that it shall be construed with that Act, which is referred to as the Principal Act. Sec. 12 of the 7 CLR.] OF AUSTRALIA. Interpretation Act 1897 provides that every Act amending another Act shall be construed with the amended Act and as part of it unless the contrary intention appears in the amending Act. Sec. 107 (1) of the Public Health Act 1902 makes substantially the same provision for the recovery of penalties, as distinct from forfeitures, as sec. 40 of the Pure Food Act, and sub-sec. 2 of sec. 107 gives a tight of appeal to any person aggrieved. It is said that the effect of these provisions is to make the provisions of sec. 107 of the Public Health Act applicable to prosecutions for offences against the provisions of the Pure Food Act, and thus to limit the right of appeal in the case of such prosecutions to " persons aggrieved " to the exclusion of an unsuccessful prosecutor. In our opinion this argument cannot be sustained. Assuming, 'not unfavourably to the respondent, that the effect of sec. 12 of the Interpretation Act is that the Pure Food Act is to be construed as 'if its provisions were inserted in the Public Health Act, the question under discussion may be treated as if the Pure Food Act were inserted by amendment in the Public Health Act as Part IX. of that Act in place of secs. 76 to 93 which were repealed by sec. 3 of the Pure Food Act, the necessary verbal amendments being made. See. 40 would then read as follows : 'imposed by or under this Part of this Act or the regulations made in pursuance thereof may be recovered" &c. If the legislation were in this form, it would, we think, be impossible to maintain " Penalties and forfeitures that the general provisions of sec, 107 relating to the recovery of penalties imposed by the Act should be construed as overriding or 'Superseding the special provisions made by the earlier section for _ the recovery of penalties imposed by or under Part IX. of the Act. On ordinary principles of construction the cases covered by the ecial provision would be treated as excepted from the operation the general provision, applying the maxim Generalia specialibus derogant. Adapting a phrase from Maawell on the Interpretation Statutes, 3rd ed., at p. 244, the general provision is read as silently 4 luding from its operation the cases which have been provided w by the special one. And we think the result is not affected by fact that the Pure Food Act is in form a separate Act. In no way can the provisions of the two sections be read as consistent H. C. or A. 1926. Kencu v. Batey. Knox C.J. Gavan Duffy J. H.C. or A 1926. Kencu Ca Baitey. Knox C.J. Gavan Dutty J. HIGH COURT with one another, having regard to the inclusion in sec. 40 of the word " penalties." Indeed, Mr. Shand for the respondent properly admitted that the construction for which he contended invoh reading sec. 40 as if the word " penalties' were omitted from it We can find nothing in the legislation to justify the Court construing the plain words of sec. 40 in this manner. For these reasons we are of opinion that the appeal to the Supreme Court was competent; and, as that Court has not d with the appeal on its merits, we think the proper order is that 1 accordance with this opinion. Isaacs J. I agree that this appeal should be allowed. It is not necessary to consider whether the appellant was a " pers aggrieved." I think that upon the authorities it is by no means a closed question. But, assuming he was not a " person aggrieved" within the meaning of sub-sec. 2 of sec. 107 of the Public Healt Act 1902, I am of opinion he has a right of appeal under sec. 101 of the Justices Act 1902. a I entirely agree with all that was said in the majority judgment: of the Supreme Court as to the manner of construing Acts of Parliament. But, applying to the enactments we have to consider those well established methods, I arrive at the conclusion I have stated. Sec. 101 of the Justices Act 1902 is an enactment of general and standing application to all decisions of justices, unless in a later Act there is found some inconsistent provision. In the present case it is urged that the Pure Food Act 1908, by reason of its identification, through sec. 12 of the Interpretation Act 1897, with the Public Health Act 1902, provides one specific appeal in sec. 107 (2) of the last mentioned Act. That specific appeal, it is said, is exclusive and excludes any one but a " person aggrieved " from appealing at all. No doubt appeal is the creature of statute, and, if there were no other provision for appeal, sub-sec. 2 of sec. 107 would be exclusive. But there is other provision by sec. 101 of the Justices Act. There are no negative or repugnant words in sec. 107 of the Public Health Act which cut away or are inconsistent with appeals given expressly 37 C.L.R.] OF AUSTRALIA, d to repeal, for the purposes of the Public Health Act, so think it would have done so expressly. It had again the subject ore it in 1908, and again was silent. The improbability of tacit is heightened by the circumstance that it would have removed e of the most important means of ensuring the due observance legislation for the preservation of the public health. Those derations in themselves suffice, in my opinion, to show that c. 101 of the Justices Act applies to this case. But there is still fact that sec. 109 of the Public Health Act expressly reserves tights and remedies given by other Acts. Those rights and to the Supreme Court for determination of the appeal from the ripendiary Magistrate. Appeal allowed. Order appealed from discharged with costs, Case remitted to Supreme Court to do what is right in accordance with this judgment. Appellant to pay costs of appeal pursuant to his undertaking. Solicitor for the appellant, J. V. Tillett, Crown Solicitor for New South Wales. Solicitors for the respondent, J. E. A. Florance & Crocker. be persons who are not "persons aggrieved." If Parliament H- ©. or A- 1926. Kencn v. Battery. Isaacs J