Ex parte WEEKES. Justices-1902 No. 27, s. 63—Summons—Validity of service—Jurisdiction. Although the magistrate acting on an affidavit of personal service which subsequently was proved to be false, convicted, the Full Court refused to grant a prohibition inasmuch as there had been in fact a good service in accordance with the Justices Act at the last place of abode. Certiorari-Notice to justices-13 Geo. II. c. 18, s. 5.-Justices Act, 1902 (No. 27), 8. 118 (2), (3). The Full Court refused to grant an application for certiorari on the ground that the notices required by 13 Geo. II. c. 18, s. 5, had not been given. PROHIBITION OR CERTIORARI. This was an application for a prohibition, or, in the alternative, a certiorari. In the information it was alleged that the applicant did use a ticket the time for using which had expired, travelling in a carriage the property of the Railway Commissioners of N.S.W. The applicant did not appear, and upon an affidavit of personal service being produced the magistrate heard the case, convicted and fined the applicant. It appeared from the affidavits that the constable's affidavit of personal service was incorrect, that the constable had made a mistake through inadvertence, and that he had left the summons with one Norah Weekes at her residence, the Metropolitan Hotel, Orange. Norah Weekes told the constable that she was the applicant's mother, that the applicant was away from home and that she did not know where he was. In her affidavit in support of this motion, Norah Weekes said "it was the applicant's usual custom to leave Orange every year for the purpose of following the occupation of a shearer and to be absent for a period of six months or more. His usual place of residence is at Orange.” The applicant now moved to make the rule absolute on the grounds that the conviction and order were contrary to natural justice, inasmuch as the applicant was not duly served with the 1905. August 21, 23. The C.J. summons a reasonable time before the time appointed for his appearance or at all, and had no opportunity of being heard. Carlos, for the applicant. A pro C. B. Stephen, for the respondent, was called upon. hibition will not be granted unless the justices acted without jurisdiction. The depositions show that the applicant attempted to travel on an expired railway ticket, and by paying the amount to the station master he practically admitted his guilt. There is no affidavit as to merits, and a prohibition will not go: The Queen v. Davis (22 L.J. M.C. 143). Though the constable made a mistake, there was practically a good service at the applicant's last place of abode. The justices, therefore, had jurisdiction, for under the Justices Act, 1902 (No. 27), s. 63, the service was complete. The fact that notice had not been given in accordance with 13 Geo. II. c. 18, s. 5, is a fatal objection to a writ of certiorari: Ex parte Stelling (4 S.R. 201). There must be merits here there are none. Sect. 75 of 1902 No. 27 shows the procedure where a defendant does not appear. The summons having been served in accordance with s. 63, the justices had jurisdiction to proceed, and, having come to a decision, this Court cannot now inquire into the matter. The Queen v. Evans (19 L.J. M.C. 151) shows that the only question to be considered is whether there was a good service, and not whether it had come to the defendant's knowledge. He also referred to In re Williams (21 L.J. M.C. 46); The Queen v. Damarell (L.R. 3 Q.B. 50); The Queen v. Farmer ([1892] 1 Q.B. 637); The Queen v. Webb ([1896] 1 Q.B. 587). The applicant may depend on The Queen v. Smith (L.R. 10 Q.B. 604); but it is not applicable to this case in that it was an application for a writ of certiorari and not for a prohibition, and the facts as to service are very different. He referred to In re Zohrab (17 L.J.Q.B. 174); In re Lenaghan (2 Exch. 333); Ex parte Hickey (4 S.C.R. 23); Ex parte Bucknell (6 S.C.R. 96); Queen v. Lee (52 Justice of the Peace). Carlos, in reply. We are entitled to a writ of certiorari even though notice had not been given to the justices. Under s. 118 (2), (3) of the Justices Act, the Court may dispense with the notice. I do not ask the Court to overrule Ex parte Stelling, but I would point out that s. 118 was not referred to in that case. I am now applying for the writ, and ask the Court to dispense with the notice. THE CHIEF JUSTICE. The application for the writ was made when you applied for the rule nisi, and that is the time that s. 118 (3) refers to. Carlos. With regard to the other point, I submit that the principles which would guide the Court when granting a prohibition are the same as would guide it when granting a certiorari. There is no distinction, except the conditions precedent necessary in a case of certiorari. It is admitted that there was no personal service, therefore there was no evidence before the magistrate of any service. If there had been any evidence from which the magistrate could have held that there had been a good service, then I would not be here. THE CHIEF JUSTICE. There was evidence of personal service before the magistrate, who therefore had jurisdiction to hear the case. We now find that there had not been personal service, but your affidavits show that the applicant had been duly served in accordance with the Act. Carlos. I submit that there is no evidence of service at the last place of abode. The affidavits only refer to Orange, and not to any particular house in Orange. The case of The Queen v. Smith (L.R. 10 Q.B. 604) is an exactly similar case to this one. See also Ferguson v. Mahon (11 A. & E. 179); Ex parte Tranter (7 S.C.R. 213); The Queen v. Evans (19 L.J.M.C. 151); The Queen v. Lee (58 L.T.R.N.S. 384 at 385). Here jurisdiction was wrongly given, and that is the same as if the justices had given themselves jurisdiction. PRING, J. The fact is the magistrates rightly decided that they had jurisdiction, but upon the wrong set of facts. Carlos. In Ex parte Campbell (9 W.N. 208), judgment was signed on an affidavit of personal service. Personal service had not been effected, and the Court granted a prohibition. 1905. Ex parte WEEKES. 1905. Ex parte WEEKES. THE CHIEF JUSTICE. In that case there was no service at all. Here there was a good service. Carlos. But there was no evidence of it before the magistrate. He also referred to Ex parte Williams (4 W.N. 133). THE CHIEF JUSTICE. It is clear in this case that the parties did not take the proper steps under 13 Geo. II. c. 18 to enable this Court to grant a writ of certiorari. See Ex parte Stelling (4 S.R. 201). It is quite clear that 13 Geo. II. c. 18 applies, and s. 118 of the Justices Act 1902 is something in addition to that Act and not in substitution therefor. (His Honour referred to the facts, and said)-The summons was in point of fact served at a place which was the applicant's last place of abode under s. 63 of the Justices Act 1902. There was no personal service because the applicant was not in Orange, but service on his mother at the place the evidence shows to have been, his last place of abode. There was therefore a good service under the Act. It appears that the day before the case came on for hearing the applicant, who was then at Cobar, was informed that the matter was coming on next day. No doubt he had then no opportunity of being present, but the question we have to decide is whether we can set the magistrate's decision aside, since beyond all question the magistrate had jurisdiction over the matter. A good service was proved before the magistrate, untrue no doubt, but so far as he was concerned he had jurisdiction to do what he did. We have been referred to two cases, Ex parte Jones (1 L.M. & P. 357) and The Queen v. Farmer ([1892] 1 Q.B. 637). They were both cases of certiorari. In both cases the magistrates acted within their jurisdiction, but the applicants were able to show that the service was not at the last place of abode. The distinction between that case and this is that in Jones' case, and also in Farmer's case, there was no service, whereas here there was a good service. Now assume that we were considering this matter on the application for a certiorari. It would appear, no doubt, that the affidavit of personal service was erroneous, but it would also appear that there had been a good service within the meaning of the Act. Would the Court under those circumstances interfere and say 1905. Ex parte WEEKES. we will quash these proceedings because the evidence as to service before the magistrate was erroneous, although there had been in point of fact a good service? Clearly not. In The Queen v. Farmer there was no service, and accordingly there the writ The C.J. of certiorari issued. These cases show that the Court in cases of certiorari will go into other evidence than that before the justices to determine the question of jurisdiction. Then the applicant might show that he had not been served at all. But here he could not show that he had not been served at all because he had been properly served at his last place of abode, and therefore had no cause of complaint. I confess I regret that this man has never had an opportunity of being heard, if only in mitigation of the penalty, but at the same time I am clearly of opinion that we cannot grant a writ of certiorari because there had been a good service, and that it is not a matter for a prohibition in that the magistrate had jurisdiction. On these grounds, the rule must be discharged, with costs. COHEN and PRING, JJ., concurred. Rule discharged, with costs. Attorneys for the applicant: Curtis & Barry (agents for McKay & Casey, Orange). Attorney for the respondent: J. S. Cargill. |