Coal Miners' Industrial Union of Workers (WA) v Amalgamated Collieries of Western Australia Ltd

Coal Miners' Industrial Union of Workers (WA) v Amalgamated Collieries of Western Australia Ltd - [1960] HCA 68 - HCA 1960 case summary — Zoe

[7]

In this Court the fact that s. 75 (v) of the Constitution invests jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth has necessarily affected the interpretation of similar clauses in Commonwealth legislation. Such a provision cannot deny the remedy where it properly lies. But in relation to statutory as distinguished from constitutional limitations, restrictions or restraints on the authority of a federal tribunal, the provision may be taken into account in ascertaining what the apparent restriction or restraint actually signifies when it is necessary to determine whether the situation is one in which prohibition properly lies. I have explained this in R. v. Murray; Ex parte Proctor [10] . I repeat portion of the passage here because it refers to the more general doctrine obtaining independently of any constitutional fetter upon legislative power to exclude the remedy of prohibition. What was there under examination was the effect of a provision that an award or order of a Board should not be challenged, appealed against, quashed or called in question or be subject to prohibition, mandamus or injunction in any court on any account whatever. After stating that in form the provision might appear to be an attempt to say that even where the law denied to the Board all authority over the proceedings so that they could not result in a lawful and effective exercise of power there should nevertheless be no prohibition, the passage proceeds - "But even in jurisdictions where there is no constitutional limitation upon legislative power similar enactments have not received so drastic an interpretation. They have been read rather as meaning that, where the tribunal has made a bona fide attempt to exercise its authority in a matter relating to the subject with which the legislation deals and capable reasonably of being referred to the power possessed by the tribunal, the acts of the tribunal shall not be invalidated and accordingly shall not be the subject of prohibition." [1] . Then follows a list of authorities including some of those cited above.

[12]

The power in question is conferred by s. 137 (1) of the Industrial Arbitration Act 1912-1952. The sub-section is divided into a number of clauses and although the divisions are exhibited very clearly to the eye the generality, not to say vagueness, of the expressions employed makes any exact application of the provision difficult. It is perhaps best to set out the material part of the sub-section which is as follows: "Where it appears reasonably likely to the Court that an act, omission or circumstance will occur, or has occurred, or having occurred, will be repeated or continued; and that the result of the act, omission, circumstance, repetition, or continuance is or will be (a) to cause, contribute to, or hasten the occurrence of a lock-out or strike the (Arbitration) Court may make such order as it considers necessary to terminate or avoid that result." I have omitted four alternative paragraphs lettered (b), (c), (d) and (e) which are inapplicable to the facts. It may be remarked that the opening expression clearly enough means "Where it appears to the Court to be reasonably likely that" etc. It is perhaps a small point but the meaning of par. (a) seems to be that the occurrence of a lock-out or strike will be caused contributed to or hastened, not that a lock-out or strike will be caused or contributed to or its occurrence hastened. Though a suggestion was made that perhaps the Arbitration Court made its order to avert a strike, it is quite certain that the whole proceeding was based on the apprehension or supposed apprehension of a lock-out and not a strike as indeed the heading of the proceeding shows. It is therefore with the word "lock-out" and not the word "strike" that we are concerned. "Lock-out" is a defined expression. The definition which is contained in s. 6 need be quoted only so far as material. The word is to include any closing of a place of employment or any suspension of work or any refusal by an employer to continue to employ any number of his workers with a view to enforce compliance with the demands made by any employer on any workers.

[13]

The Regulations under the Act provide for the procedure to be followed in applying for an order made under s. 137 and they include an important provision which is reg. 93. By reg. 93 it is provided that in urgent cases the application may by leave of the President be heard by the Court ex parte in chambers. It is also provided that any person named in or affected by an ex parte order may move the Arbitration Court on twenty-four hours notice to the applicant to vary, suspend or cancel the order. The appellant, the Coal Miners' Industrial Union of Workers of Western Australia, availed themselves of reg. 93 and on 10th December 1959 with the leave of the President on the ground that the application to the Court was of an urgent nature applied to the Arbitration Court in chambers for "an injunction" restraining the respondent Amalgamated Collieries of W.A. Ltd. "from carrying out a proposed lock-out." The order which the Supreme Court has quashed was the result of the application. As a general rule the materials upon which a court or tribunal acts in making an order which it is sought to quash or prohibit on the ground of complete absence of jurisdiction ought not to affect the question of jurisdiction on prohibition or certiorari. But it will have been noted that upon the terms of s. 137 (1) the power of the Arbitration Court arises "where to the Court it appears reasonably likely that" the required facts exist or will occur. That may give materiality to what the Arbitration Court had before it. What in fact was made to appear to that Court may be stated very shortly. On 2nd December 1959 a meeting took place between the chairman and no doubt other directors and officers of the respondent company and members of the executive and other representatives of the combined unions concerned. From a circular letter to all employees from the respondent company's chairman written next day it appears that the respondent company said that production of coal in its mechanized pits had in the last four weeks fallen by 2,000 tons a fortnight. The letter contains the following passage: "At a meeting last evening with the Executive of the Combined Unions and other representatives of such Unions I made it clear that unless production in the mechanized pits immediately increases to a quantity sufficient to enable the Company to meet its orders and carry on its mining operations otherwise than at a loss the Company would have no option but to cease its operations." This letter was circulated on Friday, 4th December. On Tuesday, 8th December, some members of the union reported that they had been informed that officers of the company had said that some dismissals would take place on Friday, 11th December. The president of the appellant union said that he communicated with the superintendent and the general manager of the respondent company but they would not confirm or deny the statement. The latter stated, so it was said, that the company would be guided by the economic situation. The Arbitration Court thereupon made an ex parte order the operative part of which is as follows: "the Court hereby orders and directs that the respondent company be and is hereby prohibited during the continuance in force of this order from giving to any members of the Applicant Union employed by the Company notice terminating their said employment because of a failure or refusal by the workers employed by the Company by their efforts to increase to a figure desired by the Company the production of coal from the Company's mechanized pits." A direction followed for service of the order and endorsed thereon was a notice that a party affected by the order might move the Court on twenty-four hours notice to the applicant to vary, suspend or cancel the order. The respondent company did not make such an application to the Arbitration Court but on 11th December 1959 obtained from the Supreme Court an order nisi for prohibition or certiorari directed to the Arbitration Court. Why on the return of the order nisi the Supreme Court preferred to make an order in the nature of certiorari rather than prohibition does not appear. Certiorari is expressly taken away by s. 108 while prohibition is not directly mentioned. But the point is not material: for I think neither prohibition nor certiorari could properly be granted.

[14]

The objections made to the order depend in part upon the grounds upon which it is said to have been based, in part upon the terms of the order and in part upon the construction placed on s. 137 (1) on behalf of the respondent. It is contended that at the root of the order is a misapprehension of the definition of "lock-out" and of the manner in which it applies to s. 137 (1). For as a result of the definition the material part of the conception depends upon the existence in the minds of the employers of an animating purpose of enforcing compliance with demands made on workers. When the definition is applied accordingly to s. 137 (1) it means that the act, omission or circumstance that has occurred or will occur or is likely to occur will have or is likely to have a result which will cause, contribute to or hasten the closing of the place of employment or suspension of work or refusal by the employer to continue to employ some number of his workers and that the view with which it is done by the employer is, will be or is likely to be to enforce compliance with the demands made by him on any worker. It is contended for the respondent that the Arbitration Court either misconceived this provision or misconstrued the fact; for the relevant fact, according to the argument, simply was that unless production was raised the employers harboured an intention to close the pits, or at all events stated an opinion that they would be unable to avoid doing so. The difficulty about such a contention is that it ignores the criterion of jurisdiction which results from a combination of s. 108 with the terms of s. 137 (1). Section 137 (1) by its introductory words "where it appears reasonably likely to the Court" commits to the Court the judgment of the very facts which the foregoing contention of the respondent treats as jurisdictional. Section 108 then operates in the manner that has been explained at the commencement of this judgment. The result is to make it impossible to base prohibition or certiorari on any error of the Arbitration Court made in a bona fide attempt to apply these conceptions in the course of exercising the power which that Court possesses, a power to which the order might reasonably be referred. Plainly it is not a misapprehension which would take the order completely outside the scope of the Arbitration Court's authority.

[30]

In an attempt to show that if the Court misconstrued s. 137, the order dependent upon that error was made in excess of jurisdiction, great reliance was placed upon the decision of this Court in R. v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. [1] where it was decided that an order made by an Industrial Authority altering rates of remuneration was made without jurisdiction because it was only by misconstruing the word "anomalous" that the Authority became satisfied that the existing rates of pay were anomalous. Latham C.J. said: "There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act - it is a condition of jurisdiction" [2] . After referring to a number of authorities, including Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust [3] , the Chief Justice said: "It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form" [4] . Speaking of the task of the Court dealing with a challenge to jurisdiction, the Chief Justice said: "It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed" [4] . Starke J. said: "The Industrial Authority must be satisfied that the rates of remuneration are anomalous. But he must be so satisfied upon a proper construction of that regulation and not upon his own arbitrary, capricious and mistaken opinion of its meaning" [1] . Williams J., with whom Rich J. agreed, said: "It appears to me that Connell, whose good faith is not challenged, adopted a wrong view of the meaning of anomaly in reg. 17 (1) (b), and that, if he had adopted its true meaning, there was no evidence on which he could have been satisfied that an anomaly existed. He therefore adopted a wrong and inadmissible test and acted beyond his powers, so that clauses 1 and 2 of the award are void and unenforceable [2] . The distinction that I draw between that case and this is that there the grant of power was construed as not extending to the formation of an unchallengeable opinion unless and until a correct interpretation had been put upon the word "anomalous," whereas here, as I construe s. 137, the matter upon which the Court must itself form an opinion includes the meaning of the word "lock-out." " In like fashion, it seems to me that the decision of the Privy Council in Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust [3] is to be distinguished. In this case it cannot be said that the Court of Arbitration did not form an opinion upon the matters, including the possibility of a lock-out, which had to appear to it to be "reasonably likely"; the most that can be said is that it formed a wrong opinion. Here, as in cases such as Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section [4] and R. v. Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service [5] , the construction of the provision in question is a matter within the jurisdiction of the tribunal to which power is committed. In the former case, the joint judgment contains this passage [6] : "The proceeding before us is not an appeal, and no appeal lies to this Court in respect of the order made by the Arbitration Court. The proceeding is an application for a writ of prohibition, and "the law is well settled that superior Courts will not interfere by way of prohibition with the decisions of inferior Courts of limited jurisdiction unless want of jurisdiction is clearly established" - per O'Connor J. in Amalgamated Society of Carpenters and Joiners v. Haberfield Pty. Ltd. [7] There was a proceeding regularly before it (the Arbitration Court), an application for relief which it was authorized by the Act to entertain. In the course of entertaining that application, it had of necessity to consider the question of the construction and effect of s. 96M (6). The determination of that question was a matter within its jurisdiction, and, where the remedy sought is prohibition, it is not to the point to say that it determined that question wrongly. There may or may not have been "miscarriage in the course of the inquiry." There was "jurisdiction to enter upon the inquiry." Cf. generally Parisienne Basket Shoes Pty. Ltd. v. Whyte [1] ".

[32]

In any event, I consider that, even if there were an excess of jurisdiction, the proceedings of the Court of Arbitration and its order are protected by s. 108 of the Industrial Arbitration Act, which provides that "proceedings in the Court shall not be impeached nor shall the same be removable to any Court by certiorari or otherwise; and no order, or proceeding of the Court shall be liable to be challenged or called in question by any Court of judicature on any account whatsoever." There is a strong judicial tradition against regarding sections protecting inferior courts and tribunals from control by superior courts as extending to control to prevent excesses of jurisdiction by means of the prerogative writs. So it is that it has for a long time been accepted that certiorari and prohibition must be taken away explicitly and not by general words: R. v. Nat Bell Liquors Ltd. [2] . Section 108, however, in express terms protects proceedings in the Court of Arbitration from removal and quashing by certiorari, and it is certiorari that the Supreme Court employed to remove and quash the order made by the Court of Arbitration. Furthermore, although not named, there can be no doubt from the words used that the section takes away prohibition as well as certiorari. This construction of s. 108 does not, however, conclude the matter, because it is well established that an inferior court which manifestly disregards limits upon its jurisdiction and undertakes to do something that is altogether outside the sphere of the jurisdiction conferred upon it, is subject to control by means of the prerogative writs, notwithstanding a protective section which, according to its terms and taken by itself, would deny any such control: The Colonial Bank of Australasia v. Willan [3] . The basis of this rule is that two conflicting provisions of the legislature, one imposing obviously fundamental restrictions upon an inferior court or tribunal and the other protecting the proceedings of that inferior court or tribunal from examination, have, as a matter of construction, to be reconciled. The position that has been reached in this Court was expressed by Dixon J. in R. v. Hickman; Ex parte Fox and Clinton [4] in a passage relating to sections of this character which has come to be regarded as classical: "They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body" [1] . It seems to me that the decision of the Court of Arbitration here is clearly within this proposition, and because this is so, s. 108 protects the order that was made from being challenged or called into question either by certiorari or by prohibition.

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Judgment (34 paragraphs)

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