Federated Engine Drivers' and Firemen's Association of Australasia Claimants; and Colonial Sugar Refining Company Limited [1916] HCA 55

High Court of Australia|1916-07-01|Before: Rich JJ, Barton J, Gavan Duffy J

es: 'MEN'S ASSOCIATION OF AUS- CLAIMANTS ; _ TRALASIA bal | Se Sipe tb

tional Law - Power of Commonwealth Parliament - Validity of legislation - yy. op a. Court - Exception from appellate jurisdiction - Jurisdiction conferred on org, one Sustice - Chambers - Prohibition - The Constitution (63 & 64 Viet. c. 12), "es 51, 73, 75, 76, 79 - Commonwealth Conciliation and Arbitration Act 1904- \erpourne, 15 (No. 13 of 1904 - No. 35 of 1915), sec. 2a. Sept. 5, 6, 20.

The whole of see. 2144 of the Commonwealth Conciliation and Arbitration grimth 0.1. ct 1904-1915 is a valid exercise of the legislative power of the Parliament Pays mac

Held, also by Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ., that the provision in sub-sec. 4 of sec. 2144 that the decision of the Justice is not to be subject to any appeal to the High Court in its appellate jurisdiction is an Ui exception from that jurisdiction within the meaning of sec. 73 of the Consti-

By Isaacs, Gavan Duffy and Rich JJ. - Sub-sce. 4 of see. 2144 only applies to a decision of a Justice sitting in Chambers.

ection would be valid; and it is the duty of the Justice before whom the ion comes to proceed with the inquiry in pursuance of the words of , eee and to leave the effect of his decision for oe in which the

H.C. or A. RerereNce. i A plaint having been instituted in the Commonwealth Court o' » Conciliation and Arbitration in which the Federated Engine Drivers' and Firemen's Association of Australasia were claimants and th

Finexen's Colonial Sugar Refining Co. Ltd. and a large number of other com- IREMEN'S z

Association panies, corporations, firms and individuals were respondents, the or Ausrran-

asia Claimants moved the High Court for a decision on the question Couoxtar, (énter alia) whether an industrial dispute or any part thereof existed _

Pekan between the claimants and the respondents, or was threatened or Co. Lrp. impending or probable, as an industrial dispute extending beyond © the limits of any one State. The motion came on for hearing before

Gavan Duffy J., who referred the matter to the Full Court.

J. A. Ferguson, for the applicants. If sub-sec. 4 of sec. 2144 of the Commonwealth Conciliation and Arbitration Act 1904-1915 is invalid the whole section is invalid. But sub-sec. 4 is not invalid. The matter with which sec, 2144 deals is within the original juris-_ diction of the High Court under sec. 75 (tv.) of the Constitution, - for the parties are residents of different States. As to the locality of the organization, see secs. 51 and 52 of the Commonwealth Con- : ciliation and Arbitration Act. At any rate the matter is one as to which the Parliament has conferred original jurisdiction upon the High Court under sec. 76 (1.) and (11). The provision made by sub: : sec. 4 of sec. 2144 is an exception from the appellate jurisdiction of the High Court, and is authorized by sec. 73 of the Constitution. -

See Quick and Garran's Constitution of the Australian Commonwealth p. 742.

Mann, for the Brisbane Tramways Co. and other respondents. These respondents do not contest the validity of sec. 214a. This Court will not determine the validity of sub-sec. 4 until the necessity - for doing so arises. Sub-sec. 3 does not exclude the exercise of the =f jurisdiction by the Full Court or by a Justice sitting in Court. Sub-sec. 4 only applies to a Justice sitting in Chambers, as is shown by the use of the words " the Justice." Here the application was made to the Court by motion, and therefore sub-sec, 4 has no applica- tion and its validity need not be considered. The word " may "

sub-sec. 3 should not be read as " must." Even if sub-sec. 4 1 ©. or A.

applies to Justices or a Justice sitting in Court, the provisions of ras

ub-secs. 1, 2 and 3 are severable from that of sub-sec. 4. Provisions Feprrarep

Ey erring jurisdiction may be severed from provisions limiting the peiyrns?

effect of a judgment when pronounced. If the validity of sub-sec. ,, A%P

thas to be considered it would seem to be in conflict with sec, Assoctation or AusTRAL-

5 (v.) of the Constitution, under which the High Court has power ASIA determine on prohibition whether the Commonwealth Court of prep

iliation and Arbitration is acting within the powers conferred Pheer sec. 51 (xxxv.) of the Constitution. Prohibition will still lie to ©o- Lp. President of the Arbitration Court notwithstanding sub-sec. which is not aimed at taking away the right of prohibition nted by sec. 75 (v.) of the Constitution. This is not the time,

Owen Dizon (Stanley R. Lewis with him), for the Colonial Sugar ing Co. Ltd. and other respondents. Sub-see. 4 of sec. 214, her by reason of its construction or by reason of its invalidity,

Arbitration Court. As to the remainder of the section its ity or invalidity is a matter of indifference to these respondents.

Sta 'ke, for the Commonwealth intervening. It is in the public that the validity of the whole of sec. 2144 should be now ined. If sub-sec. 4 is invalid the other sub-sections are not rendered invalid. Sub-sec. 4 is not a condition of the

not affect the validity of sub-sec. 1, 2 or 3. The validity of judicial powers which arise out of the exercise of the legislative conferred by sec. 51 (xxxv.) of the Constitution must be 'ined according to the judicial power conferred by the Con- itution. Apart from sub-sec. 4 there are manifest advantages to parties in sub-sees. 1, 2 and 3. They could get a decision as n the parties which, if not appealed from, would be binding n them, Sub-sec. 4 is not ultra vires. Under sec. 79 of the

Constitution the Parliament may confer this jurisdiction upon one Justice, and sec. 73 contains ample power in the Parliament to tal away the right of appeal from any Justice exercising the original jurisdiction of the High Court. It is within the absolute discretion - of the Parliament to determine to what extent the appellate po of the High Court shall be exercised, and whether it shall be exercis at all. See Willoughby's American Constitutional System, pp. 970, 975, 976 ; Durousseau v. United States (1); Ex parte McCardle (2)

[Isaacs J. referred to Ex parte Yerger (3); Cross v. Burke (4).

A decision under sec. 214A is a decision inter partes. If after wards one of the parties should apply for prohibition to the Arbit tion Court, alleging want of jurisdiction on the same ground which had been already litigated under sec. 21a, this Court, in the exercise" of its discretion, would refuse the writ : Farquharson v. Morgan (5) Whether prohibition would go to a Justice acting under sec. 2144 _ would depend on whether he was acting as a Justice of the High Court. Prohibition does not, go to the Court itself or a membei ~ of the Court or to a co-ordinate Court.

[Isaacs J. referred to R. v. Bloomsbury Income Tax Commissioner: (6) :

[Counsel also referred to Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. [No. 1] (7); Warren vy. - Mayor &c. of Charlestown (8); El Paso and North Eastern Railway Co. v. Gutierrez (9).]

Grirrirx C.J. read the following judgment : - -These matters come before us on a reference made by Gavan Duffy J. under sec. 18 of the Judiciary Act, of certain questions which arose upon "applicatio made to him under sec. 214a of the Commonwealth Conciliation and Arbitration Acts, which was added to the Acts by Act No. 18 of 1914 That section is as follows : -

(1) 6 Cranch, 307. (6) (1915) 3 K.B., 768, at p. 782. (2) 6 Wall, 318. (7) 16 C.L.R., 591, at p. 647.

(8) 2 Gray (Mass.), 84, at p. 99. (9) 215 U.S., 87.

z " (1) When am alleged industrial 'dispute is submitted to the H.C. or A.

(a) in the case of a dispute submitted to the Court by plaint Feprxarep

the complainant or respondent organization or associa- oe tion; and aon

(yi in any other case - any party to the proceeding or the Assoctatio: Ri or AvsTRAL- egistrar, ASTA apply to the High Court, for a decision on the question whether Goraticits dispute or any part thereof exists, or is threatened or impending ,Svear

REFINING probable, as an industrial dispute extending beyond the limits Co. Lrn. any one State or on any question of law arising in relation to the grimtn 0.3, spute or to the proceeding or to any award or order of the Court.

"(2) The High Court shall have jurisdiction to hear and deter- mine the question. _ "(3) The jurisdiction of the High Court under this section may exercised by any Justice of the High Court sitting in Chambers.

"(4) The decision of the Justice on the question shall be final and conclusive, and shall not be subject to any appeal to the h Court in its appellate jurisdiction, and shall not be challenged, yppealed against, reviewed, quashed, or called in question, or be

bject to prohibition mandamus or injunction, in any Court on any account whatever." . _ Upon the matter being opened; it appeared to my brother Gavan

(1) Whether he had any jurisdiction to make such an order as ed, or, in other words, whether the section was a valid law within the competence of the Commonwealth Parliament :

(2) What is in law a dispute extending beyond the limits of any

_ (3) What rules of evidence should be applied on the hearing of e application.

The foundation of the whole matter is, of course, the much

debated provision of sec. 51, pl. xxxv., of the Constitution, which empowers the Parliament to make laws for the peace, order, and good

government of the Commonwealth with respect to conciliation and

AND | FIREMEN's: ASSOCIATION or AUsTRAL- ASIA v. CoLoNraL Sucar REFINING Co. Lrp.

extending beyond the limits of any one State. As was pointed out by the Judicial Committee in the recent case of Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. (1), "the burden rests on those who affirm that the capacit to pass" the Act '' was put within the powers of the Commonweallt! Parliament to show that this was done." The capacity to pass laws which will operate upon an industrial - dispute is made by pl. xxxv. dependent upon two questions, one a - question of law - what is the meaning of the expression "an indus: trial dispute extending beyond the limits of any one State," - th other a question of fact, that is, whether the facts relating to a : alleged dispute are such as to bring it within the words of the Con- _ stitution properly interpreted. If an alleged dispute is not within - the ambit of the power the Commonwealth cannot by any law which it passes bring it within that power, any more than a man can by taking thought add a cubit to his stature. The remedy - provided by the Constitution forf usurpation of jurisdiction by a judicial officer of the Commonwealth is provided by sec. 75 (v. namely, prohibition, and no law of the Commonwealth can take away or diminish that remedy. The remedy for usurpation of 4 legislative authority by the Parliament is provided by the Courts: of law, which will- refuse to give effect to a law passed without - authority.

shown by weeks of weary litigation, a mixed question, and sometimes a difficult one, of law and fact, upon which it may almost be said Quot judices tot sententiw. But there can be only one true rule of law on the subject. A case is now before the King in Council for - decision which raises the whole question, but it is apparently desired - that this decision should be anticipated by the decision of a single Justice without appeal.

entertains an application for an award with respect to an industrial dispute which, either in fact or in law, is not within the ambit of

(1) (1914) A.C., 237, at p. 255; 17 C.L.R., 644, at p. 653.

the power of the Court, the proceedings are coram non judice and can beattacked by prohibition. It follows also that the Commonwealth Parliament cannot by any law take away that right.

Bearing these considerations in mind, I proceed to consider the provisions of sec. 214a, I leave for the present some questions of construction which arise upon the first three paragraphs, and pass to the fourth paragraph, which, as Mr. Ferguson very properly admits, is the only one which his clients regard as conferring any substantial right worth fighting for.

What does that enactment mean? Its words are to the ordinary mind plain enough. The declaration of the Justice is to be final and without appeal, and is not to be subject to appeal to the High Court in its appellate jurisdiction or to be challenged, appealed against, reviewed, quashed or called in question, or be subject to prohibition, mandamus or injunction in any Court on any account e whatever. The language could not be wider, although the word

of the High Court. The intended reference is obviously to an appli- 'tion for a prohibition directed to the Arbitration Court and made notwithstanding the declaration. In my opinion that which the Commonwealth Parliament intended to enact was that a decision asingle Justice, both on the vexed question of law and on questions fact, should have the effect of a judgment in rem or of a judgment the question of status, and should be binding upon all the world : that is to say, that, whether upon the true construction of pl. xxxv. ere was or was not a dispute extending beyond the limits of any one State, his decision that upon his view of the law there was such a dispute should be final and conclusive for all purposes, and as against all persons ; so that, if an application for a prohibition to the Arbitration Court should afterwards be made, the High Court vould be precluded from entertaining the point, and would be bound ) hold that proceedings which were really coram non judice were, vertheless, within the jurisdiction of the Arbitration Court. On rhat point I have nothing to add to what I have already said. In y judgment such an enactment is wholly invalid. 'The Judiciary Act 1912 enacts (sec. 3) that a Full Court consisting

or AUSTRAL- ASIA v. COLONIAL Sucar REFINING Co. Lrp.

< of the Commonwealth, the concurrence of four Justices in the deci

on a question affecting the constitutional powers of the Common wealth unless a majority of all the Justices concur in the decision, It follows that, upon an application to the Full Court for a prohib tion to the Arbitration Court raising the question whether a

ticular dispute is in law a dispute within the ambit of the po

would be necessary. It is obvious that the four Justices wou not be bound by the opinion, on the matter of law, of the si Justice who made a declaration under sec. 21aa (Gray v. Dalgety & Co. Lid. (1)). The decision would, therefore, so far, be futile I do not think that sec. 214a can be construed as a repeal pro tanto of the enactment of 1912. j It is, however, suggested that par. 4 may be supported on ground that it would be wholly inoperative and inefficacious, ani that it is therefore unnecessary to declare it invalid. This con tion, which is not very respectful to the Parliament, raises a important question as to the construction of sec. 2144 as a whole with which I will afterwards deal. I will first show that the section" would for all practical purposes be inoperative unless constrned the sense that would make it invalid. The supposed order would be made as an incident to a proceeding in the Arbitration Cou over which ex concessis that Court may have no jurisdiction, relating to matters which may not be within the ambit of the Com- monwealth power. It would be, as I will afterwards show, a order in the nature of a mandamus or prohibition. Such an ordé cannot be relied upon as an estoppel, even as against parties who de facto attend the proceedings. In the next place, if the order ha any such effect, it would be only as res judicata inter partes, and - only as to the sole question determined, that is, whether the all dispute did, in fact, at the date of the plaint or of the order extend beyond the limits of a single State. It might, perhaps, also be adjudication that at that date a particular person was a party t the dispute. But, for reasons already given, it could not be set up as res judicata as to a matter of law. Upon an application n : to the High Court for a prohibition against the Arbitration Cour by a person aggrieved by the award but not a party to the previous (1) 21 C.LR., 509.

ition, as, for instance, by the Attorney-General of a State ted by the award, or even by a stranger so affected, it would even be admissible in evidence. I do not-think it necessary cite authorities for these propositions, which seem to me to be mentary. 'It follows that the intention of the Commonwealth Parliament expressed in par. 4 of sec. 214a cannot be carried into effect, the double reason that it endeavours to bring within the ambit mmonwealth powers matters which may be outside them, d that such an endeavour is futile. now pass to the question of the construction of sec. 214A as a Mr. Ferguson, for the claimants, contends that par. 4 is able from the rest of the section, and is valid, and he says, and I agree with him - that if it is invalid the rest of the ction would be useless. I will consider for a moment what would e the effect of the first three paragraphs of the section standing ne. The only question that could be raised under these para- phs would be one as to the jurisdiction of the Arbitration Court. provisions may, therefore, be regarded from one point of view new form of procedure, authorizing a suitor, instead of waiting see whether the Court will or will not entertain his suit, to ask ra declaratory order to the effect that, if it does not, a mandamus be granted, and that, if it does, a prohibition will not be granted, t vice versd. This would be an entirely novel form of procedure, ous in some respects to the old bill Quia timet. I am not d by the objection of novelty, but I ask what would, accord- to ordinary rules of law, be the effect of a judgment in such a For reasons which I have already given, it could not have operation except as against tlie parties in whose presence it made, and could only bind them as to the precise point deter- namely, that the Court ought or ought not to proceed to the suit as against them. It would be exactly analogous to order granting or refusing a new trial, and could not have the lect of a judgment in rem or declaration of status binding upon the world. It would therefore be useless for the purpose for

vhich par. 4 of sec. 214A was passed. The result would be of

FEDERATED ENGINE Drivers' AND Firemen's ASSOCIATION or AUSTRAL- ASIA v. CoLonraL Sucar REFINING Co. Lrp.

H.C.or A. a whole. The elimination of par. 4 would, therefore, have the 1916. :

Feprrarep ment. In other words, par. 4 is so essential a part of the whole

DAC", enactment that, if it is left out, the Parliament would in effect Fw zy's be declared to have enacted a law which they did not intend Assocration enact. I think, therefore, that the whole section is invalid.

For these reasons I am of opinion that my brother Gavan Duff had no jurisdiction to make the order asked for.

As to the second point submitted, it would, I think, be indecorot

REFINING : at ba ie Co. Lrp. to answer it pending the decision of the Judicial Committee in tl

Grimthcg. case now before it. If, therefore, it were necessary to answer it, this case should stand over until we have the advantage of Committee's decision. And I cannot bring myself to believe th any member of this Court would, pending that decision, pronounce a decision with the idea of overriding any decision which the Judicial Committee may give to the contrary.

It is not necessary to answer the third question, but I think plain that in any judicial inquiry before this Court the eviden must be taken in conformity with the ordinary rules of evidence. Sec. 25 of the Commonwealth Conciliation and Arbitration Act has application to such a case.

I have not thought it necessary to deal with a question which was debated before us as to the construction of sec. 214a with par. 4 omitted. I think the better view is that it would give jurisdiet i to the High Court, to be exercised either by a Full Court or a sing! Justice, and, in the latter case, whether sitting in Court or Chambers.

Barton J. I have read and considered the judgment which has - just been delivered. I agree in its reasons and therefore in it conclusions.

The judgment of Isaacs, Gavan Durry and Ricw J.J., which was read by Isaacs J., was as follows : - x : In the result, there is only one question which the Court ha to answer, namely, "Is sec. 214a valid?" If it is valid, then

ive order, that is, an order as effective as the Legislature intended H. C. or A. u 1po n a proper construction of its words, can, of course, be made. = Learned counsel on all sides found themselves unable to con- Feprrarep nd absolutely that the section was wholly invalid. On the one PXGN®

counsel for the Association urged that if sub-sec. 4 were | ASP. Frmemen's

invalid as an unwarranted attempt to cut down the appellate Assocratros r of the High Court - which, however, he contended it was" AG" °.

then, because in his view that sub-section was inseparable orontar, n the rest, it would render the whole section unlawful. He _Se¢a®

4 . oom REFINING id he was impelled to say this because the section in that case Co. Lrv.

d be useless to his clients. It is plain that, even if that reason ility were well founded - which it certainly is not, - it could " affect the Court's decision. The enactment was not passed for

benefit of any one association or class of persons. It was passed the general benefit of the Commonwealth, and to cure an evil eting the whole community that had manifested itself in con- able proportions and had been referred to in this Court.

Counsel for the respondents, on the other hand, so far from ting invalidity, gave reasons for maintaining the validity of section. As to sub-secs. 1, 2 and 3 taken by themselves, no ubt could be suggested. Sees. 76 (1.) and (11), 79, and 51 (xxx1x.) f the Constitution plainly support them.

m would be good, because separable ; and all that would result be a good and binding order in the first place, subject, however, if made by a single Justice, to appeal to the Full Court. They ed that such an order even if appealable would he of great benefit 'their clients and others in a similar position. Again it is to be that for reasons already stated, such a consideration not sway the Court in determining the validity of the enactment. her this nor any other Court has the function of considering .

wisdom or usefulness of the measures that Parliament has

H.C. or A. deliberately chosen to adopt. Whether or not they are suffici

to meet a given evil, is a question for the Legislature alone.

Feprrarep can such considerations be entertained for the purpose of conj

AND understood would not bear. If such an indirect approach to th FireMen's

Association meaning of any document were allowed, no form of words, ho

or AUSTRAL- |. t g asia distinct, would secure them from misapprehension, Corowiaz, A Suggestion was made by which such an indirect approach wi Sucar adopted. The steps in the reasoning were these : - (1) Parliament REFINING t :

Co. Lrp. must have meant to provide for an effective order; (2) no orde

isaacag, can be effective unless it prevents the Court on an application

Sean prohibition from inquiring whether there is or is not an inter-Sts

dispute; (3) therefore sub-sec. 4 though in its literal terms

fined to the order of the High Court must be construed as intended

to protect an unauthorized award of the Arbitration Court when

prohibition is applied for; (4) such an enactment is unconstitu-

tional, and, being inseparable from the rest of the section, vitiates the

. whole. The premises, if correct, so profoundly affect the worki

ing some meaning in an enactment which its words as ordi

of the Constitution that they merit the most careful scrutiny. It is obvious that the answer to the first step is, that no assum) tion of parliamentary intention can be made except from wl Parliament itself has said. If it be within its powers to autho a certain order, then the Court cannot attribute to it any inten' except to authorize that specific order with precisely what eve consequence, effective or ineffective, the law will attach to it. go beyond that is to violate the very first canon of interpretation and to judge of intention by conjecturing what a writer intend to say and not by what he has said - that is, to read his mind ap from his words, instead of reading it by means of his words alone. The second step assumes there can be no effectiveness short that suggested. As a practical proposition both the contesta parties to this application have expressed their dissent, and agree with them. As a legal proposition also, we are of opinion is unsound. If a judicial decision of a Justice, not open to appea in Australia, that an alleged dispute does or does not exist has legal efficacy, neither has a judicial decision to the same eflect the fullest Bench of this Court. And if the proposition suggested

e as to an alleged inter-State dispute, it must be equally true to an alleged trade mark, or an offence against Commonwealth alleged to have been committed within Australian territory.

_In our opinion, the inherent fallacy in the suggestion is the failure '0 recognize that what a competent Court has decided must be all events as between the parties - as true both in fact L in law, until lawfully reversed or set aside. Of course it is

to say that Parliament cannot determine whether a given

function of some Court exercising the judicial power. Nor can Parliament empower a Court to determine that something which snot within the Constitution is within it. Any enactment purport- to do so - if we could imagine such an enactment - would be But it is equally true that the Constitution has not authorized Court, nor could Parliament authorize this Court, to prohibit Arbitration Court from proceeding where there is an inter-State pute, or to prohibit any Court from exercising its proper juris- on. The solvent of the whole difficulty is in not forgetting the

test of whether a given set of circumstances comes within the stitution or not as an inter-State dispute. For instance, could

of the parties be permitted to say that the various instances of ibition already granted by this Court to the Arbitration Court contrary to the Constitution, because there was in each case, -t, an actual dispute? What would the answer be? That we have given, namely, the decision of this Court so long as a unimpeached finally decides the question of dispute or ispute - at all events as between the litigants.

'liament in the exercise of legislative power may validly under 76 (1.) and (1) authorize this Court to determine any judicial tion there referred to in original jurisdiction. It might assign prohibition jurisdiction under sec. 75 (v.) to one Judge. If

ENGINE Drivers' AND FrreMeN'3 ASSOCIATION or AusTRAL- ASTA

tion. As between them at all events the law speaks with no un tain voice, and unquestionably with no double voice. The judicial

power of the Commonwealth having in such case validly and solemnly

AND determined that any given subject matter - whether it is a mai Frremen's nee:

Assocration or a trade mark, or a crime, or an industrial dispute is immaterial or Ausrrat- , " Bibi ane eS _ ASIA is or is not within the Constitution, the same judicial power is not Coxontar. Svoar to the same parties precisely the reverse. If it is, then it may REFINinc sé

Co.Lrp. again and again, by differently constituted Courts, disregardi

so self-contradictory or inconsequential as to say on another oceasion

isaaes J. entirely all prior determinations, alter its mird and its pronounce-

"ment. It might, for instance, first prohibit a Court from procee and, without reversing or setting aside that judgment, subsequently issue a mandamus to compel the Court to proceed. That is too obviously wrong to require comment. The principle is clear that "it is not competent for the Court, in the case of the same questi a arising between the same parties, to review a previous decisi not open to appeal" (Badar Bee y. Habib Merican Noordin (1) A distinct authority bearing directly on the present question 1 the Federated Engine-Drivers' and Firemen's Association of Australas v. Broken Hill Proprietary Co. Ltd. (2). We refer particularly to

The result is that in a prohibition motion the Court, if it finds question already finally decided by the Court itself, is preclud from entering into any further inquiry, but is bound to determine according to its own recorded decision.

that he would. Whether he could or could not, however, depends - not on the words of the section but on general principles of Jaw, which do not now call for decision and as to which we express no- opinion. i

The third step in the reasoning impeaching the validity of the section is met by the same considerations as apply to the first.

(1) (1909) A.C., 615, at p. 623. (2) 16 C.LR., 245.

| to the fourth, which is the conclusion, it' necessarily falls with H.C. or A. 1916.

: Rae: 'The question propounded to us must really be determined in the Frprerarep al way, by first construing the enactment according to ordinary Polat

irciples, and then asking whether such a provision is authorized ,, 48? . FIREMEN'S

the Constitution. Reading the section as a whole, and reading Association ih it the provisions of the Judiciary Act, notably secs. 15 and 16," Ce effect is that an application such as is referred to in sub-sec. 1 may corowian 'made to, and determined by, the High Court in original jurisdic- oe that this jurisdiction of the High Court may be exercised by one Co. Lav. or more Justices ; that, if exercised by one Justice, he may sit either traces

in Court or in Chambers; and that, if exercised by one Justice in banal as Chambers, his decision is to be " final and conclusive," that is, unap-

able to the High Court in its appellate jurisdiction (see Water-

ouse & Co. v. Gilbert (1) and Lyon v. Morris (2)). To prevent any misapprehension as to the meaning of the word " appeal" and to

displace by anticipation any argument that the word had a narrower

' ing than the same word used in the Constitution, other words

added, even to saying that the decision of the Justice authorized

the section should not be attacked by prohibition or any other

ieans. Those additional expressions are really superfluous ; they

emphasize the intention of the Parliament to confer the fullest isdiction it could confer on the single Justice sitting in Chambers, to take away, to the fullest extent it could take, the appellate sdiction of the High Court in relation to the decision of that ice in Chambers. They have no reference whatever to any mination or award of the Arbitration Court, and in no way port to touch the jurisdiction as to prohibition conferred on this by sec. 75 (v.) of the Constitution, which, of course, does not e prohibition to the High Court itself. to the power of the Parliament to except this order from the pellate power, it is beyond serious question. The relevant words referred to in the Tramways Case[No. 1] (3), where some English nd American authorities are also cited. In fact, since the argument n this case, the point has been actually decided unanimously by

}) 15 Q.B.D., 569. (2) 19 Q.B.D., 139. (3) 18 C.L.R., 54, at p. 76.

H.C. or A. the Court in R. v. Murray and Cormie; Ex parte The Commonwea eae (1) in relation to article 2 of the Second Schedule to the Common-

wealth Workmen's Compensation Act (No. 29 of 1912). Jn our opinion sec. 214 is valid.

Firemen's go 3 Association - Haars J. read the following judgment : - There is here no ca or AusrRan- A

ASIA stated, or question reserved for the Full Court; but our lea

Corowtax, brother Gavan Duffy J. informs us verbally that he has directe

Caldas that a motion which was made to him be argued before the Co. Lrp. Court under sec. 18 of the Judiciary Act. The motion was ma by the Federated Engine Drivers' and Firemen's Association unde sec. 21aa of the Commonwealth Conciliation and Arbitration Act

for a decision on the question whether an alleged industrial d

pute extending beyond one State exists or is threatened, &c. and as no special case has been stated, no specific question reserved for us, as the whole application is directed to be argued before us, it would seem to he our duty to determine on the evidence, whether there is such a dispute - unless, indeed, sec. 214 is altogethe invalid, so that no such determination can be made. The argument for the invalidity of the whole section comes, curiously enough, from the applicant union, which urges, thro its counsel, that if the final clause (4) - which purports to make th

urges that the final clause (4) is valid. Even if the final clause (4) is invalid, I see no ground for saying that the whole section is invalid. No doubt, Parliament desire : that the decision on the application should not be subject to appeal ; but even if Parliament could not achieve that end completely thet is no reason for thinking that it would not have provided a mean for getting a decisior from the High Court which would be bindi on the parties to the application subject to the right of appeal. - Before the enactment of sec. 21aa, the position might fairly be called monstrous. An alleged two-State dispute would be presented - to the Court of Conciliation ; and after that Court had spent days, weeks, months, in satisfying itself of the existence of the dispute (1) Post.

in determining the merits of the dispute, and in framing an any one dissatisfied party could bring an application for ition ; in that application the whole question of dispute or dispute was open to inquiry, the finding of the Court of Concilia- tion was not treated as being even primd facie right ; and if a major- ity of the Full High Court thought that the two-State dispute was not established, the long labours of the Court of Conciliation were ered useless, the expenditure of the parties was lost, and the

ent for the parties before entering on the labour and expendi- of arbitration, to get a decision from the High Court or a Justice , Which will be final and conclusive unless an appeal be ; on the appeal, the decision will be treated as primd facie ht ; and if the time for appealing has expired before the arbitra- n comes on, the decision must be treated as conclusively right between the parties to the application. Henceforth, under these , the parties and the Court can, after the decision, proceed th confidence in the arbitration, and the country's industries will not be liable, as hitherto, to be thrown into chaos, This of tself is a great gain, even if there were no clause 4; and what bt can there be that Parliament would take the qualified finality

give an authoritative decision on the question which is at the dation of the jurisdiction of the Court of Conciliation, is there spute, actual or threatened, extending beyond one State ; the er was to make that decision final and conclusive as between » parties. If the first object can be attained and the other not, eis absolutely no ground suggested for supposing that Parlia- 'ment would not seek to attain its first object. If the first three ses of sec. 214A were in one Act, and clause 4 in a subsequent there could be no doubt as to our conclusion ; and the mere +t that clause 4 happens to be in the same Act cannot alter the As I pointed out during the argument, the provision in sec.

FEDERATED ENGINE Drivers' AND FirEMEN's: ASSOCIATION or AuSTRAL- ASIA v. COLONIAL Sugar Rerininc Co. Lrp.

award shall be subject to prohibition has been held by the Court be invalid, and yet no one has suggested that because this provision is invalid, the whole provisions of the Act are invalid. 4 It follows, from what I have said, that in my view the provisions of the first three clauses of the section are very far indeed from futile. It is true that sec. 75 (v.) of the Constitution still remains, which gives the High Court original jurisdiction to issue a writ 0 prohibition against " an officer of the Commonwealth" ; and it has been held that the President of the Court of Conciliation is a officer withir. these words. But sec. 75 (v.) has no greater authority than sec. 79, which would enable Parliament to commit the juris- diction of prohibition to a single judge, or than sec. 73 under whi Parliament could make the decision of a single judge final and withow : appeal. Moreover, if an application were made for prohibition under sec. 75 (v.) by a party to the application under sec. 2144, the decision of the single judge under the first three clauses of sec. 2144 would be binding against that party under a plea of res judicata; and [rather think that if that party obtained an order nisi for prohibition an order would be made setting aside the order nisi as- having been improperly obtained, or staying proceedings. In cases _ somewhat analogous, such as a shareholder suing on behalf of him- - self and other shareholders, when it turns out that the shareholder who so sues is precluded by his conduct from complaining, the bill, or action, is dismissed, although the other shareholders have a good - cause of action (Burt v. British Nation Life Assurance Association (1) ) It is not necessary for this decision, from my point of view, to sa} whether clause 4 makes the decision of a Judge in Chambers final, but fails to make the decision of the same Judge in open Court final. But if clause 4 does perpetrate this absurdity, the clause does not apply to the present case, which is an application in open Court ; and therefore the provision for finality in clause 4 cannot affect the duty of the High Court to decide the question under clauses 1 and But I entertain no doubt as to the validity of clause 4. Under ' sec. 73 of the Constitution, Parliamert has power to make excep- : tions from the jurisdiction of the High Court to hear appeals from

ments or orders; and it has made an exception in this case

Ea parte McCardle (1) on. the corresponding clause in the Ameri-

_ The whole case having been sent to us to be argued, it appears to e that if we do not hear argument as to the merits of the motion,

on - if there is now power to remit it. Leet the eis this case should be treated as a precedent, so far as my own onal view is concerned, I may venture to say that in future the course in such cases would be simply to obey the words of the to make the inquiry and give a decision, leaving the question to the validity of clause 4 to be tested if the beaten party desired ) test it afterwards. Nothing is clearer than that a Court should sume the validity of an Act of Parliament until the time comes the question of validity can no longer be evaded or .post-

Drivers' and Firemen's Association of Australasia under the ity of sec. 21aa of the Commonwealth Conciliation and tration Act 1904-1915 applied to my brother Gavan Duffy as

nd Arbitration Court) or any part thereof exists, or is threatened, impending, or probable - as an industrial dispute extending nd the limits of any one State. The application was made to a

t of the Commonwealth Conciliation and Arbitration Court. matter was referred by my brother Gavan Duffy to this Court. Sec. 21aa has already been quoted. The principal question for e consideration of the Court is whether sec. 2144 as a whole is

Counsel for the respondents did not contend that it was not vithin the power of the Commonwealth Parliament to pass sub-secs.

ASSOCIATION or AUSTRAL- \ASIA v. COLONIAL Sucar REFINING Co. Lap.

FEDERATED ENGINE Drivers' AND FrreMen's ASSOCIATION or AUSTRAL- ASIA v. COLONIAL Sugar Rerinine Co. Lrp.

1, 2 and 3 of sec. 21aa, but they contended that the Comm wealth Parliament could not pass sub-sec. 4 of that section, and if, as they contended, the sub-sections were not properly severable, the whole section should be declared invalid because beyond the powers of the Commonwealth Parliament. It was admitted by counsel for all parties that the Constitution (secs. 76 and 79) authorized ; Parliament to make laws conferring original jurisdiction, includi matters involving the interpretation of the Constitution, on

Justice of the High Court, and therefore that sub-secs. 1, 2 and of sec. 214A were not ultra vires, even if the matter referred to it that section involved an interpretation of any part of the Con tution. The only disputed point, so far as the parties are c cerned, was whether sub-sec. 4 of sec. 2144 making the de

of the Justice of the High Court exercising the jurigdiction of High Court under the section, final and conclusive and not subj to any appeal to the High Court in its appellate jurisdiction, wa: within the powers of the Commonwealth Parliament.

Sec. 73 of the Constitution confers the appellate jurisdiction the High Court to hear and determine appeals from all judgment: decrees, orders, and sentences, inter alia, "' (1.) of any Justice or Jus- tices exercising the original jurisdiction of the High Court." T appellate jurisdiction is, however, conferred on the High Court by sec. 73 of the Constitution "with such exceptions and subject to" There is no doubt' that sec. 214a makes an exception in the particular matter refe to, by declaring that the decision is to be final and cor clusive an not subject to appeal to the High Court; but it was contended that the exception made car not be held to be within the exception: referred to in sec. 73 of the Constitution.

During the present sittings this Full Court of seven Judges decided that the Commonwealth Parliament can, under the po to make such exceptions as the Parliament prescribes (sec. 73) make decisions of County Courts in New South Wales (exercising - federal jurisdiction) under the Commonwealth Workmen's Compen- sation Act 1912 final and not subject to appeal to the High Court | (see R. v. Murray and Cormie; Ex parte The Commonwealth (1).

appeal to the High Court, even if the case involved questions Jaw and fact. I do not see any good reason why the Common- th Parliament cannot make the exception it has made in case and say that the decision of a Justice of the High Court reising original jurisdiction on the question whether there is or not an industrial inter-State dispute is to be as final as if it had decided by a Full Bench. (See secs. 76 and 79 of the Con- ution.) I cannot take on myself to say what exceptions Parlia- mt is to make, or what exceptions I think it should not make, thin its jurisdiction. That is for Parliament alone under the ywers given to it by the Constitution to decide. Personally, I do not think that one Justice should be authorized to decide finally any matter "involving the interpretation of the Constitution," am not here to legislate, but to interpret the law as it stands.

ive without sub-sec. 4. I agree that Parliament must have intended to pass the on as a whole, and that it had authority under the Constitution make the exception it did, I do not propose to refer to the ques- n of severability or any of the other questions raised during the ment, except to point out that we are only asked to deal with e power of Parliament to make the decision of a Justice of the High ourt exercising the original jurisdiction of the High Court - and not the decision of a Judge of the Arbitration Court - final on evi- nee submitted to him. I am not considering the question whether award of another Justice of the High Court as President or puty President of the Commonwealth Conciliation and Arbitra- 1 Court, possibly on different evidence, at a different time, when he deals with the dispute, is subject to prohibition or not. hold that the Commonwealth Parliament had power to pass

errritH C.J. I must not be supposed to concede that the

FeperateD ENGINE Drivers' AND FireMEn's AssocraTIoNn or AUSTRAL-

H. C. or A. provision in sec. 21.44 that no appeal shall lie from the decision of 1818: single Justice is an exception within the meaning of sec. 73 of tl

Feprravey Constitution. On that question I reserve my judgment.

ENGINE Drivers' : i leealeess Declaration that sec. 214 is valid. Order tha

SaUpAR Solicitors for the respondents, Blake & Riggall ; Derham, Rober

Co. Lev. son & Derham; Fink, Best & Hall. ar Solicitor for the Commonwealth, Gordon H. Castle, Crown Solicitor

SANDS & McDOUGALL PROPRIETARY } Drrenpanih LIMITED : : : " ih

H.C. or A. Copyright - Infringement - Original literary work - Map - Exemption from liability 1916. to pay damages - Knowledge of existence of copyright - Name of author on map:

SYDNEY, Geo. Vc. 46), secs. 1, 2, 5, 6, 7, 8 31, 35. Aug. 29, 30, sede ; a a Bey 'The word " original" in sec. 1 (1) of the Copyright Act 1911 means Mensourne, Pied," "not imitated."

Sept. 14. Held, therefore, thet a map which is produced by a cartographer applying his faculties to the best sources of information within his reach, and which is in no sense a copy but presents points of difference from previous map according to the use to which he purposes to apply it, is an original literary

work within the meaning of sec. 1 (1), and entitled to copyright.

At a glance

Court

Decision date

Before

Source

Judgment (178 paragraphs)