SLAUGHTERMEN'S STRIKE.

Otago Witness, Issue 2779, 19 June 1907, Page 38

SLAUGHTERMEN'S STRIKE.

KECOVERST OF FIXES. DECISION OF JUDGE WILLIAMS WRIT OF ATTACHMENT REFUSED.

His Honor Mr Justice Williams gave judg ment on the 17th in the matter of an order of the Court of Arbitration whereby H. Millar was ordered to pay to Peter Keddie, Inspector of Awards at Timaru, the sum of £5 as a fine. Mr Macassey appeared on bebalf of the Inspector of Award?. His Honor's judgment was as follows: — The fifteenth section of " The Industrial Conciliation and Arbitration Act. 1905," declares that any worker who takes part in a strike shall be guilty of an offence, and shall be liable to a fine, and may be proceeded against in the same manner as if he •were guilty of a breach of an award. The one hundred and first section of the Industrial Conciliation and Arbitration Act of the tune year deals with the enforcement of awards, and provides (sub-section b) that if any party on whom the award is binding commits any breach thereof the Inspector of Awards or any party to the award may apply to th« Arbitration Court for the enforcement of the award. Sub-section (c) provides that on the hearing of such application the court may, by order, impose such fine for the breach of the award as it deems just. Sub-section (d) provides that if the order imposes a fine it shall specify the parties liable to pay the same and the parties or persons to whom the sum is payable. The respondent was » worker, *nd under section 15 of the Amendment Act was fined £5 by ike Arbitration Court for taking part in » strike, and was ordered to pay the amount ©I th« fine to the applicant. Sub-section (c) of section 101 provide* 'or the enforcement of pajment. It enacts that for the purpose of enforcing payment of tbe fine and costs payable under any order of the court a certificate in the prescribed form specifying the amount payable and the respective parties or persons Dy and to whom the same is payable may be filed in any court having civil jurisdiction to the extent of such amount, and shall thereupon, according to its tenor, be enforceable in all respects as a final judgment of such court in its civil jurisdiction. The certificate required has been filed in the present case in the Supreme Court. It certifies: that the Court of Arbitration ordered that the sum of £6 should be payable by ths respondent to the applicant, and that the eaid amount was then payable by the respondent to the applicant. The question is whether by virtue of sub-section (c) of section 101 a writ of attachment can issue against the respondent, so that he can bd committed to prison, for making default in payment of the fine. If he can be so committed it is only because by making default in payment of a penalty or sum in the nature of a penalty he comes within the first exception in section 3 of " The Imprisonment for Debt Abolition Act, 1874," and is punishable accordingly. Unless he comes within the excepted cases in that section no person can be imprisoned for non-payment of a sum of money. Section 3 was adopted from section 4 of £he English Debtors' Act, 1863. The effect of section 4 has been discussed in various cases. In Middleton v. Chichester (6 Ch., 132) Lord Hatnerley says that the exceptions in the section all relate to debts the incurring of which was in some degree worthy of being visited with punishment, and that in every case there is something of the character of delinquency pointed out. In is Smith, Hands v. Andrews (1893, 2 Ch., 1), Kekewich, J.. says that the remedy by committal or attachment under " The Debtors Aot, 1869," is punishment for an offence, and he distinguishes it from a remedy to enforce payment of a debt. Lindley, L.J.. in delivering the judgment of the Court of Appeal iv the same case, says : — " The punitive character of section 4 of " The Debtors Act, 1869," •which was pointed out in Middleton v. Chichester has been since so often recognised that it cannot now be questioned." After referring to Eome cases he goes on to say: "In these cases, however, the fact that a commitment under section 4 is not to be re. garded simply as a form of civil process, but as punitive, is distinctly recognised " In Cobham v. Daltou (L.ll, 10 Ch , 657), Melhsh, L.J., had said, with reference to this section, that arrest for debt was intended as a means of enforcing pajment, and not as a punishment. This was controverted by Lmdley L.J., and Cobham v. Dahon was dissented from. So also was it dissented from in in re Edgcome, ex pnrte Edgcome (1902, 2 X..8 , 403). In that case Vaughmi Wiiham«, LJ. makes it perfectly cleai that tee exceptions to section 4 of the act of 1869 are all punitive, and are not to be treated as process for euforcing pajment of tne debt. Now, sub-section (,e) of section 101 does not r>retend to give power to pitman for noa-paymeiit of the fine It merely presence- v. bat may bo done for the purpc=e of en f oriir.g pa}ment. As shown by the Cngh-ii caEes. viumshment by imprisonment for default m payment la not a piocess for enforcing payment. SuT>section (c) prescribes that the certificate, according tc its tenor, is to be enforceable in all respects as a 'final judgment ot the court in its civil jurisdiction. a fine is not enforceable by the court in it* civil jurisdiction. The order for pavmer.t, therefore, is to be treated, not as a fine, but as a final judgment in a civil action: It is to be enforced according to its tenor The tenor of it simply is that £5 is payable t-o the applicant by the Respondent. The Arbitration Court had ordered this sum to be paid By the respondent to the applicant Where a court of competent jurisdiction h«s ordered a man to pay a sum of money to another, that is a debt due from the one to the other (per James, VC. iv Eewitson v bherwin. L R 10, Eg at pdge 54i The wsct.ou contemplates that the order is to be enforced as if it were a fhi.il jiid*ment for the recovery oi the di-bt Th^t \i made perfectly clear by the prov.so m si 'j-t"ctiun (c) and sub-sections if) and (gi, vthich speak of the judgment debtor and judgment creditor. and prescribe remedies agan.st the property of the judgment debtoT for the recovery of the debt. For the purpose of enforcing payments, sub-section (c) does not appear to me to rate the claim, any higher than a claim for an ordinary debt. Even, however, if. for the purposes of enforcement, it could be treated as a penalty, it is none the less a debt payable to th» claimant by virtue of the order of the Arbitration Court. If no otheT remedy had been given him he would have had to sue for it in a court baring civil jurisdiction and hare recovered it in an action for debt. Actions by common informers for penalties •i» actions for debt (English Encyclopaedia of Law— title "Debt"), and by rule 363 of

tb* Supreme Court Code, a writ of attachment cannot issue for the non-payment of money recovered in an action for debt. If default in payment was to be punished, why may the certificate for a v sum within the jurisdiction of the Magistrate's Court be filed in a court which has no power to punish? I find nothing in sub-3ection (c) to suggest that the Legislature intended that, in the event of d-sfauit in payment of a fine inflicted by the Arbitration Court under section 101, the person m default should be punished by imprisonment. When the Legislature intended that default in payment of a fine inflicted by the Arbitration Court for an offence should be punished by imprisonment it has expressed itself very clearly. Sections 81, 107, 112, 113, and 118 of the principal act create offences punishable by fine. Section 103 gives the Arbitration Court exclusive jurisdiction to deal with these offences. Proceedings are to bs taken before that court as summary proceedings are taken under " The Justices of the Peace Act, 1882. When the court makes an order for payment of the fine it is filed in the nearest Magistrate-; Court, and is thereupon to be enforced as a final judgment, conviction, or order made by a Stipendiary Magistrate under the summary provisions of

• The Justices of the Peace Act, 1882." That brings into play section? 31 to 97 (inclusive) of the latter act, and makes default in payment punishable by imprisonment for a period not exceeding the terms mentioned m the scale set out in section 96. According to that scale where the amount exceeds £1, but does not exceed £5, one month is the maximum. If the contention of the applicant is correct that non-payment of a fine inflicted under section 101 of the act of 1905 can be punished by imprisonment under sub-section (c). the maximum terms for the most trivial fine wou'd be one year, the period beyond which, by the third section of the act of 1874, no person can be imprisoned for non-payment of money. Further than this, if a man has served his term of imprisonment under Eection 96 he is no longer liable to the fine. If, hor.-ever, he is imprisoned under a writ of attachment his property appealed still to remain liable (the Queen v. Hemßworth. 3 C.8., p. 744; Roberts v. Ball, 3 sm. and g. 168, 24 L J., ch«p. 471). The Legislature certainly considered the offencea under the sections mentioned in section 103 more serious than those under section 101, and the startling result would follow that more serious liabilities would be incurred for the lesser offence than for the more serious one. The Legislature had clearly before it two classes of fines — those inflicted under section 101 and those inflicted under the sections mentioned in section 103. As to the latter, it made express provision for punishment by imprisonment in default of payment As to the former, it made no such provision, but enacted that payment should be enforced practically as if they were civil debts. It would have been simple enough to have placed both classes in the same category, and the fact that the Legislature refrained from douisj so is the strongest possib'e reason for holding that it had no intention that imprisonment should follow on default of payment of a fine inflicted under section 101. When also the Legislature passed the Amendment Act it had before it sections 101 and 103 of the principal act. If it had intended that default in payment of a fine undeT section 15 of the Amendment Act was to be punished by imprisonment proceedings would have been directed under section 103, and not under section 101. The law must be e'ear, and not a matter of doubtful inference, if the liberty oi the subject is to be interfered with. In a former case Mr Justice Cooper took a contrary view to that which I now take. He. however, was under a great disadvantage in having had only one side of the case presented to him I feel justified, therefore, in differing from his conclusion, although, if he had heard the case argued as I have heard it, and his judgment had followed on such an argument, I should have greatly hesitated before doing so. I have the satisfaction of knowing that if my decision is wronfc- the Court of Appeal can eet it right very shortly If, on the other hand, there is a hole in the act requiring a patch Parliament is at hand to patch it. Motion refused.

His Honor added that there would be one set of costs for the whole of the ca°es. and disbursements in each case