Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Limited [1913] HCA 71

Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Limited [1913] HCA 71 - HCA 1913 case summary — Zoe

[147]

proceeding on the second plaint rather than on the first. This is Frremen's not a matter with which this Court is concerned, but I take leave Sete very humbly to suggest that they might both be retained, and if "5™ necessary consolidated. Broken Under ordinary cireumstances it might appear that, since the aes President's jurisdiction was not validly invoked until November ©? 47? 1911, the previous proceedings were altogether wasted. But Grititn cv. that difficulty is obviated by sec. 25, which provides that "In the hearing and determination of every industrial dispute, and in exercising any duties or powers under or by virtue of this Act, the Court or the President shall act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms, and shall not be bound by any rules of evidence, but may inform its or his mind on any matter in such manner as it or he thinks just." Upon the hearing, which, in my opinion, must be regarded as a fresh hearing (instead of a further hearing, which I suppose would in any case have naturally taken place after so long a lapse of time), the President can under this provision avail him- self of all the evidence which he has already heard, just as he might make use of evidence given before a Royal Commission or before a Select Committee of Parliament in a like case. He would, of course, have the same power if he proceeded on the new plaint. It was from this point of view that I said that the matter involved is in one respect almost purely technical. For these reasons I think that the first question submitted should be answered in the affirmative, but not with a simple "Yes." I think that the answer should be qualified by adding "on the basis that the plaint first came into valid existence on 23rd November 1911." The second question submitted by the case is whether the respondents the Corporation of the City of Melbourne are subject tothe jurisdiction and award of the Court in any and what respect.

[208]

H.C. or A. "Tt appears to me that what the Statute in terms provides for is 1913. an 'opinion' of the Court to be given to the arbitrator or umpire; ee and that there is not to be any determination or decision which D Excixe- amounts to a judgment or order." RIVERS AND Firemey's I cannot help thinking that the words "hear and determine awed govern paragraph 2 of sec. 31, and that the "hearing and deter- as' mination" there prescribed is a judicial act, so closely equiva: Broxen lent to a judgment that an appeal would lie from such a decision pe given by this Court to the Judicial Committee of the Privy Co. Lrp. Qouncil, subject, of course, to special leave. I think that on the Barton J. statement of a case the question becomes transferred from the Court of Arbitration to the High Court, to be there determined, - though the result is remitted to the President. I think the question submitted is to be determined by this Court once for all, and not to be determined over again one way or the other by the learned President, and that our decision binds the Court of Arbi- tration and the parties as well. The parties are heard and the - question is determined, although the result of the decision may ; be embodied in the award of the Court when the President pro- - nounces it. Nor need it be embodied expressly so long as the award does not contravene, but conforms to, the law which it determines. Suppose, for instance, that the question is one concerning the constitutional powers of the Commonwealth within the meaning of sec. 3 of the Judiciary Act of 1912, will it be contended that where a majority of all the members of this Court has determined such a question, for example, in favour of the powers of the Commonwealth, it is open to the learned Pre- sident to decide it the other way, and to award accordingly? Of course, there is the corrective jurisdiction of this Court, but cases may arise in which it may not be exercisable effectively. But though the determination is equivalent to a judgment of this Court, so as to be appealable, I do not say that it also amounts to a judgment of the Arbitration Court. It is conclusive between and upon the parties in the sense that it is res judicata, and can- not be afterwards controverted by them ; but, as I have indicated, the President must take his direction from it, and receive it as the law which his judgment or award is to enforce.

[219]

tion of Statute law. eS It is common knowledge that at the time of our decision, reported in 12 C.L.R., 398, associations of members of the sam crafts, registered or seeking registration, were as common associations of members of the same industries pursuing similar objects. It is probable the former were the more numerous class of associations. Those which had gained registration had, of course, undertaken many burdens, and they had also acquired property of one kind or another as bodies incorporated for the purposes of the Statute. In the case of those which had been or were associations of craftsmen, their incorporation had been made invalid by the decision in the registration case; many of their acts had become void; many of what they had supposed their rights, untenable. The Court had struggled against giving the decision. Here was clear reason for see. 4 to validate their registration, and to confirm their proprietary rights and their : compacts by consequence. But what is there in the section to warrant the construction that it retrospectiyely subverts that - which as between these parties the Court declared to be the law binding them and detining their rights inter se? Such an inten- tion will not be presumed. Where is it expressed ? Day v. Kelland (1) is a case which illustrates the principle that where the rights of parties in suit have been ascertained by the order of a competent Court, and a Statute afterwards - enacted applies expressly to transactions which took place before - as well as to those which took place after the commencement of - the Act, the Statute will not be construed so as to alter the rights ascertained before its passage. There may be room, indeed, to question whether the Parliament has power to validate a pro-_ ceeding in an action, void when taken and pronounced to be void _ by a competent tribunal before the making of the Statute. That, - however, it is not necessary to decide. It is sufficient that where an enactment is open to either of two constructions, one of which involves and the other averts the alteration of rights already -

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Before

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Judgment (338 paragraphs)