ligh Court - Jurisdiction - Question as to limits inter se of constitutional powers of Commonwealth and State - " In any cause pending" in Supreme Court of State - Appeal from inferior Court of State - Judiciary Act 1903-1920 (No. 6 of 1903 - No. 38 of 1920), secs. 2, 39, 40a.

Sec. 24 (1) of the Commonwealth Conciliation and Arbitration Act 1904-1920 provides that "if an agreement between all or any of the parties as to the whole or any part of the dispute is arrived at, a memorandum of its terms shall be made in writing and certified by the President, and the memorandum _ when so certified shall be filed in the office of the Registrar, and unless other- wise ordered and subject as may be directed by the Court shall, as between

the parties to the agreement, have the same effect as, and be deemed. an award for all purposes including the purposes of section thirty. By sec. 3 of the Commonwealth Conciliation and Arbitration Act 1921 was assented to on 16th December 1921) sec. 24 (1) was amended by ins after the words "parties to the agreement " the words "or any suce

any assignee or transmittee of the business of a party bound by the ment, including any corporation which has acquired or taken over the |

Held, by Isaacs, Higgins and Starke JJ., that sec. 24 (1) as so am applies as from 16th December 1921 to an agreement made, and to a cessor, &e., who has become such, prior to that date.

Held, also, by Isaacs, Higgins and Starke JJ. (Knox C.J. and Gavan Duj dissenting) that, so interpreted, sec. 24 (1) as so amended is within the conferred on the Commonwealth Parliament by sec. 51 (xxxv.) and (xx3 of the Constitution.

Australian Boot Trade Employees' Federation v. Whybrow & Co. (1910 C.L.R., 311, distinguished.

Sec. 101 of the Justices Act 1902 (N.S.W.) provides that "(1) Any pi to the proceedings, if dissatisfied with the determination by any jus justices in the exercise of their summary jurisdiction of any informati complaint as being erroneous in point of law may . . . apply in to the said justice or justices to state and sign a case + + setting the facts and grounds of such determination for the opinion thereon Supreme Court" &e. $ 106 provides that " (1) The Court shall hear s determine the question or questions of law arising on such case ; " &e.

Held, by Isaacs, Higgins and Starke JJ., that upon a case stated w see. 101 the Supreme Court may entertain an objection of law which not raised before the Court of Petty Sessions if it cannot be cured by evid

Knight v. Halliwell, (1874) LR. 9 Q.B., 412, and Ex parte Anderson, 20 S.R. (N.S.W.), 207, followed.

Held, also, by Isaacs, Higgins and Starke JJ., that an appeal to the Sup Court of a State from an inferior Court of that State is a "cause pendin the Supreme Court of a State " wi Act 1903-1920.

appeal to the Supreme Court thas: the appeal cannot be completely d de without a decision on a question as to the limits of the const powers of the Commonwealth and of the States, it is the duty of the Court to drop the case and make no order of any sort.

monwealth Conciliation and Arbitration Act, by its secretary, ohn Culbert, charged that George Hudson Ltd., being an employer subject to the provisions of an agreement made on 10th November 10 pursuant to the provisions of the above Act and a memorandum if which certified by the President of the Commonwealth Court of onciliation and Arbitration had been filed in the office of the egistrar of that Court on 17th December 1920, did commit a breach if such agreement by failing to observe it, in that the defendant did not on 14th February 1922 keep a copy of such agreement posted in 1 conspicuous place on its works readily accessible to employees. At the hearing it appeared that one of the parties to the agreement sa respondent was George Hudson & Son Ltd., and that George Hudson Ltd. was incorporated on 30th December 1920 and carried on the business until then carried on by George Hudson & Son Ltd. There was evidence that George Hudson Ltd. had failed to post a

21, which was assented to on 16th December 1921, was not etrospective. It was also contended that the agreement was ultra es in relation to the clause as to the posting of a notice of the

efendant and imposed a fine, the defendant appealed to the Supreme Jourt by way of case stated pursuant to sec. 101 of the Justices Act 902 (N.S.W.), the question for the Supreme Court being whether the determination of the'Stipendiary Magistrate was erroneous in point oflaw. On the hearing of the appeal before the Full Court, to which it was referred by Wade J., that Court made a rule the substantial tion of which was as follows: " This Court doth, subject to the ermination of the constitutional question arising herein, affirm the determination in respect of which the said case was stated" : Aus- tralian Timber Workers' Union v. George Hudson Ltd. (1).

7 The matter now came on for hearing before the High Court.

'It was admitted during the argument in the High Court that there 22 s.R. (N.S.W.), 534.

H.C. of A. 1922-1923. 'ial Gores Hupsox Lr. AUSTRALIAN

had been an assignment of the business of George Hudson Ltd. to George Hudson Ltd. Other material facts are stated in the judgments hereunder,

Bavin AG, for N.S.W. (with him Sherwood), for the appell Sec. 24 (1) of the Commonwealth Conciliation and Arbitratio 1904-1920, as amended by sec. 3 of the Commonwealth Co and Arbitration Act 1921, should be construed to apply only

agreements made, and to successors who have become after the latter Act became law. The Act is penal, and should | strictly construed (Remmington v. Larchin (1) ). The effect of t amendment is to interfere with existing rights, and the presumpt is that it is not intended to be retrospective (In re Athlumney ; | parte Wilson (2): R. v. Ipswich Union (3); In re School B Election for Parish of Pulborough; Bourke v. Nutt (4); B Broken Hill Proprietary Co. v. Simmons (5)). The amend made by see. 3 of the Act of 1921 is beyond the power confe on the Commonwealth Parliament by sec. 51 (xxxv.) and (xxx1 the Constitution ; for it purports to impose a liability upona p who was not a party to the dispute or to the agreement. Parliament attempts to bind persons, not because they are pa a dispute, but because they are engaged in an industry, it goes beyo! its powers, This case is governed by the decisions in R. v. Com wealth Court of Conciliation and Arbitration; Ex parte Whybrow Co. (6), and Australian Boot Trade Employees' Federation v. Whyb & Co, (7). Such a provision is not incidental to the power confei by sec. 51 (xxxv.). The power conferred on the Commonwealth Co of Conciliation is necessarily limited by the subject matter 0 particular dispute. Sec. 3 purports to bind employers whol independently of the subject matter of the dispute, and s impose the obligations of an agreement on successors whether it or was not in dispute that successors should be hound. The q tion of the validity of sec. 3 is a question of the limits inter se of constitutional powers of the Commonwealth and the States (Jo

(1) (1921) 3 K.B., 404, at p. 408, (5) (1921) 30 C.L.R., 102. (2) (1898) 2 Q.B., 5 (6) (1910) 11 C.LLR., 1. (3) (1877)2 Q.B.D., 269. (7) (1910) 11 C.L.R., 311.

nonwealth Court of Conciliation and Arbitration (1)). On a H- © oF A.

. , 1922-1923. stated pursuant to sec. 101 of the Justices Act 1902 (N.S.W.) as

e Supreme Court has jurisdiction to entertain a question of law Grorce

ich was not raised in the Court below (Zz parte Anderson (2) ). Tf pee that case is good law, an objection can be taken in the Supreme Court Perce aig th ough that objection is one which the Supreme Court has no juris- Tuer

A a i ue Workers' ction to decide. The point which was taken as to the validity of | Usroy.

3 of the Act of 1921 was one arising on the case within the mean-

ich was in the Supreme Court is removed into the High Court, h can finally decide the rights of the parties in that matter. R. v. Maryborough Licensing Court; Ex parte Webster & Co.

gave the Court of Petty Sessions original Federal jurisdiction to ertain the information, and gave the Supreme Court appellate ederal jurisdiction to entertain the case stated (Ah Yick v. Lehmert

K.C. and F. L. Flannery, for the respondent. The Parlia- it having power to legislate as to the making an agreement on the parties, the question whether it had also power to uke the agreement binding on successors of the parties is not a estion of the limits inter se of the powers of the Commonwealth

ind the States. When a matter comes before the High Court pur- suant to sec. 40a of the Judiciary Act, it is before that Court in the xercise of its original jurisdiction, and not of its appellate jurisdic- Matters which have been decided by the Supreme Court can

ly come before the High Court by appeal in the ordinary way.

(2) (1920) 20 S.R. (N.S.W B (6) (1919) 27 C.L.R., 249.

• (3) (1874) LR. 9 Q.B., 412. (7) (1921) 29 C.L.R., 243, (4) (1914) 3 K-B., 160. (8) (1905) 2 C.L.R., 593.

8 (1917) A.C., 528 ; 24 C.L.R., 396. (5) (1869) 34 J.P., 150.

• Sec. 3 of the Commonwealth Conciliation and Arbitration Aet

• applies to agreements made and to successions which take }

before the Act was passed. The word "shall" in sec. 24 (] mandatory, and does not import futurity (see Page v. B

The Commonwealth Conciliation and Arbitration Act is a and not a penal Act, and the rules of construction for penal should not be applied. The amendment made by sec. 3 of of 1921 is not beyond the powers of the Commonwealth Parliar The framers of the Constitution should be taken to have had in sideration the rules of law. At equity an assignee who pr business with knowledge of a decree made in respect of it ta business subject to the obligations of the decree (Pratten v. Pea (3) ). The doctrine of lis pendens is necessarily implied in the power the Commonwealth Parliament. It is incidental to the power : conciliation and arbitration to enact that persons who take Ov business shall take over the agreements as well as the awards w are in force as to that business. The matter is improperly befé Court. If the Supreme Court of New South Wales has, under Justices Act 1902, power to entertain a point of law not taken bel the inferior Court, that power extends only to points of law 1 which the Supreme Court has power to deal. (See Kates v. Jeffe (4).) The words " any cause pending " in sec. 40a of the Judici Act refer to any matter pending in the original jurisdiction of t Supreme Court, and not to a matter pending in its appellate jurisd tion. The definition of " cause " in sec. 2 of the Judiciary Act do not include this case. The only method in which this matter « be brought before this Court is by an appeal under sec. 39. ;

[Isaacs J. referred to Stockton and Darlington Railway v. B

Kyox C.J. The majority of the Court is of opinion that the ques tion asked by the case stated should be answered No, and that

(1) (1860) 2 Giff, 117. (4) (1914) 3 K.B,, at p. 164. (2) (1911) 2 Ch., 1, at p. 11. (5) (1860) 9 H.L.C., 246. (3) (1899) 20 N.S.W.L.R. (Eq.), 147.

ts in the Supreme Court and in this Court should be paid by the fendant company. The reasons will be given later.

Kyox C.J. Before 10th November 1920 there was an industrial pute extending beyond the limits of one State between the respon- lent Union and a number of employers in the timber trade, including limited company incorporated as George Hudson & Son Limited. 10th November 1920 this dispute was settled by an industrial

iliation and Arbitration Act, and that agreement was on 17th December 1920 filed in the office of the Registrar. It was a term

arties to the agreement. . 30th December 1920 the appellant, which is a limited company orporated under the name of George Hudson Ltd., became, by ignment, the owner of the business formerly carried on by George Hudson & Son Ltd., and it is not disputed that the former company he "* successor in business "' of the latter company. By sec. 3 of the amending Act No. 29 of 1921, which became law on 16th ember 1921, it was provided that sec. 24 of the Principal Act should be amended by inserting in sub-sec. 1, after the words " parties to the agreement," the words " or any successor, or any assignee or mittee of the business of a party bound by the agreement, includ- ing any corporation which has acquired or taken over the business of such party." In the month of March 1922 the appellant was arged on information before a Police Magistrate with a breach of the agreement of 10th November 1920 in that it did not on 14th 'ebruary 1922 keep a copy of the agreement posted in a conspicuous place in its works. The magistrate convicted the appellant, and at its "request stated a case for the opinion of the Supreme Court. On the argument before the Supreme Court it was for the first time con- tended that, if the effect of the amendment introduced by sec. 3 of the Act of 1921 was to impose obligations on persons who were not :

H.C. or A. parties to the dispute in settlement of which the agreement

1922-1925. made, that enactment was beyond the powers of the Commonweal

Grorce Parliament. On this question being raised, the Supreme Cow

HPPSOS being of opinion that on its true construction sec. 3 had this effe Pan abstained from deciding the question submitted by the case state AUSTRALIAN

a the magistrate, and the matter was set down before this Court w Txron. _ the provisions of sec. 40a of the Judiciary Act 1903-1920, Three questions were argued before us, namely, (1) wheth

the matter was properly before the High Court; (2) whether ¢

its true construction sec. 3 of the amending Act of 1921 extende to cases in which the agreement was made and the succession toc place before the passing of that Act: (3) whether sec. 3 of th amending Act of 1921 was within the powers of the Commonwe

On the first and second of these questions I do not propose 1

say more than that while my mind is not free from doubt I do

dissent from the conclusions arrived at by the majority of the men bers of the Court.

The remaining question is whether it was within the powe the Commonwealth Parliament to enact that an agreement mad between parties to an industrial dispute should be binding not o on those parties, but also on the successor in business or the as of the business of any party to the agreement. In effect, sec. 3 the amending Act provides that an agreement made, certified

on the successor in business of any party to such agreement eve though such successor was not a party to the industrial dispute it settlement of which the agreement was made or, as in the presen case, was not even in existence while the dispute existed or when the agreement settling the dispute was made. The question may be stated thus : Has Parliament power, for the purposes of preventing or settling an industrial dispute, apprehended or existing, betweer

the dispute or part of it shall be binding on C, a person who while the dispute exists has no connection with either of the disputants or the businesses? In my opinion this question can, consistently with the

ision in Whybrow's Case (1), only be answered in the negative. n that case the Court decided unanimously that it was beyond the er of Parliament to enact that persons not parties to an industrial

yind by an award of that Court duly made for the purpose of pre- ing or settling that dispute. The Court held also that the fact a dispute could not be effectively prevented or settled except making the award binding on persons not parties to the dispute 'not warrant the enactment as being incidental to the exercise power to legislate for the prevention or settlement of the pute. Different reasons were given by the members of the Court i report of i conclusions. Griffith C.J. (ieuele iis there

certainable difference capable of being composed. Barton J.

id at pp. 323-324 : - * To empower the Court to declare that any ndition of employment, or the like, prescribed by its award shall be a mmon rule binding the whole industry and all engaged in it, is plainly end the authority of the Court beyond the ambit of the dispute d to bind persons other than the disputants by the decisions of Court. This can by no means be considered as in its nature dental to the settlement of a dispute which only the disputants t or could bring before the Court. The award itself is the prescribed for the settlement of the dispute as between the parties. If the award did more it would be an excess of juris- to that extent, even if expressly confined in its operation the immediate parties and their industrial affairs. If it not only ncluded more than the subject matter of the dispute but involved than the parties, the case would be worse. How then can it bettered, if the attempt is made to produce any such effect either is to parties or subject matter by nominally separating the opera- s and giving the name of a common rule to the excess? The cess cannot possibly be merely incidental to that which depends its validity upon the limitation of the adjudication to the subject of the dispute and the parties thereto. And the mere citing of persons not parties to the dispute, even by serving process on them (1) (1910) 11 C.L.R., 311.

A. instead of calling upon them, generally and not even by name,

• advertisement, would not make that lawful which previously

constitutional warrant." O'Connor J.said at p. 329: - ' But whatey incidents or attributes these various legislatures may, in framin their arbitral systems, have added to, or taken from, the sy: adjudication previously known to the common law as arbitrati neither in that legislation nor elsewhere is there to be found ai meaning of the term which would justify its being used to d a method of adjusting industrial rights, which is wanting in elemental incidents and attributes which the word arbitration i itself must necessarily connote. One can have no mental conce} of arbitration without parties in difference over some matter capal of judicial adjustment by an arbitrator. The exercise of an auth to impose conditions of employment upon employers and empl between whom there exist no such differences, even though it may b exercised by a standing arbitral tribunal, is not and cannot be : application of arbitral power. No fair reading of sub-sec. xxxv. sec. 51 of the Constitution can justify the Parliament of the Com wealth in conferring such an authority on the Federal Arbitrat Court." Isaacs J. said at p. 335 : - ' The next contention is thi assuming that arbitration like conciliation applies even to cases difference not yet matured into disputes where the issues categorically stated, yet arbitration is not, any more than is concilié tion, an intelligible conception except where some difference can | perceived, and expressed in terms, however general, between the part who are to be affected by the decision. I agree with that. The

of action may be voluntary, or compulsory ; unanimity or majority of opinions may control its decisions, further there may be light 0 heavy sanctions for non-compliance, or there may be none at all; notice may be given personally or by advertisement : all this is for the will and discretion of Parliament, but a limit is fixed beyond

legislative control - the process must be either conciliation or arbitré tion or both, and one prime essential both of reconcilement b

uasion or influence, and of authoritative settlement is that there

t be some disagreement, some want of harmony calling for the exercise of those offices." And at p. 337 : - " But the words of the tment are not reasonably open to such construction. They were lainly intended to confer, and if validly enacted would confer, jurisdiction to establish by official pronouncement a binding rule of duct extending over the whole industry, not merely over the hole area of the dispute in that industry, and applying to every person engaged in it, although he was in no way involved in any dispute either by personal activity, or as a member of an organiza- tion, or as a working unit of one of two opposing classes in actual contest though not formally organized." Higgins J. said.at p. 339 : - "The difficulty arises from the fact that the persons engaged in the industry, not parties to the award, whom it is the common rule, are not in need of any conciliation and arbitration,

s they are not engaged in or threatened with any dispute." And it p. 343: - * So far, it seems clear enough that the words of the onstitution do not warrant this provision in the Act for extending ny regulation in an award to persons who are not in a dispute, and between whom a dispute is not threatened or probable. Such an ension is not within the connotation of conciliation or of arbitra-

e supported as " incidental" to the exercise of the main power,

s J. said at pp. 337-338 : - '' Then it was sought to support

The view presented was that the Court could act under the sub- tions, whenever it was found necessary for the effective settlement of the actual dispute. It is true that the grant of a power carries

ith it the grant of all proper means not expressly prohibited to effectuate the power itself. See the cases cited in Baater v. Commis- sioners of Taxation (N.S.W.) (1). No instance of this principle could be stronger than the case of Attorney-General for Canada v. Cain

), where the Privy Council held that the legislative power to exclude bo connoted the power to expel, as a necessary complement of the

power of exclusion. But that was because the power of exclusi could not otherwise, even within its own admitted limits, be effec ually exercised and enforced. The case is quite different when it found that a given power, though fully and completely exereis and enforced, is not effectual to attain all the results desi expected. The matter is then one for the consideration of authority in whom resides the right of granting a power more sive. It is not open to the grantee of the power actually bestoy to add to its efficacy, as it is called, by some further means out: the limits of the power conferred, for the purpose of more effecti coping with the evils intended to be met." And Higgins J. s at p. 345: "Nothing is incidental to that power which is not directly aimed at the precise method of dealing with industrial dispute: conciliation and arbitration - which the Constitution contemplate

The decision in that case appears to me to be an authority for tl

or through the medium of an arbitrator, obligations on persons wh are not parties to an existing or probable industrial dispute.

During the argument it was suggested that if this provision wer held to be beyond the power of Parliament it would follow thi

Act, that an award should be binding on all members of organ tions bound by the award; but, even if this be so, it affords no re for extending by judicial construction the powers conferred Parliament by the Constitution.

In my opinion, Parliament had no power to enact the provis of sec. 3 of the amending Act of 1921.

My brother Gavan Duffy desires me to say that he agrees with #l conclusion at which I have arrived on this question.

Isaacs J. In this case judgment has already been form pronounced dismissing the appeal ; and I now state my reasons.

This case was originally argued on what I may term the merits the case itself. It was then placed in the list for argument on what may be called, by way of distinction, preliminary points, tho these points are in themselves very important. I do not meé

iy that they present to my mind any real difficulty of solution, but at, if the objections raised could be sustained, the consequences would be very serious. I deal with the preliminary points in logical order.

1, Sec. 106 of the Justices Act 1902. - An objection was taken on e new argument that, if well founded, destroys the basis of our own urisdiction to hear this case. It was that sec. 106 of the Justices Act 1902 did not extend to any point of law on a case stated, unless it had been taken before the Court of Petty Sessions. The words

e case " may be" in the form in the Third Schedule, setting forth the facts and grounds of the determination for the opinion thereon the Supreme Court; it was contended that, inasmuch as grounds " were to be mentioned, they were all the Supreme Court could pass upon. The language of the provision appears to me entirely opposed to the contention. The Supreme Court's " opinion " is not directly as to the "* grounds " any more than as to the " facts," which equally have to be stated. Nor is it as to the " determina- mn," but the "opinion" is to be "thereon," that is, on " the ase." For centuries, as was pointed out in Merchant Service Guild Australasia v. Newcastle & Hunter River Steamship Co. |No. 1} ). the two expressions "state a case" and "opinion" have n coupled together and received a definite signification. Some s enable definite questions to be put to the superior Court for the authoritative guidance of the primary tribunal, others leave to that Court the complete determination of the controversy by its wn judgment; or these functions may be combined. The legisla- ion in sec. 101 and sec. 106 is substantially and in all relevant spects identical with that in the Imperial Act 20 & 21 Vict. c. 43,

H.C. oF A. 1922-1923. w Grorce Hupson Lrv. v AUSTRALIAN TrBER WorkERS" Unston.

secs. 2 and 6, No schedule is there provided corresponding to tl New South Wales Third Schedule; but the latter is not obligat and is only a suggested form, following the usual form found in almo any English book of practice dealing with justices' law. For instan see Scholefield and Hill's Appeals from Justices of the Peace (publis in 1902), at pp. 329-330. Now, the legislation was introduced into South Wales by Act 45 Vict. No. 4 of 1881, copying in all relevant respects the language of the English legislation and with the fu knowledge by Parliament that a definite interpretation had b attached to that language. That is a clear case of adoption o language as interpreted. The interpretation had been placed w the English legislation in at least two conspicuous cases. In parte Markham (1) the Court of Queen's Bench (Cockburn C.J. and Blackburn, Mellor and Lush JJ.) held that a fatal objection in la y may be taken in the appellate Court, though not noticed before justices, the condition being that it could not be cured by furtl evidence. The basis of that decision obviously is that in law th whole matter is open to the appellate Court on the law with respect to the facts, but, that being open, the ordinary dictates of justic require that neither party shall be prejudiced by the late diseovery of the new point. If it is incurable, he is not prejudiced, except perhaps as to costs; but, if curable by evidence, he may be prejudiced and, therefore, on grounds of natural justice the party taking must bear his own misfortune rather than pass it on to the other party. This is a course followed in all appellate jurisdiction where no statutory provision prevents it. It is the rule in this Court in the Privy Council; and is exemplified in numerous cases. 1874, in Knight v. Halliwell (2), the principle was reaffirmed.

question arose very neatly. A notice to have a child vaccina' dated 10th March 1872, had been given, and on this the appellant had been convicted previously. He contended before the justice that the same notice was insufficient for the then present proceed- ings. because it had been exhausted by the prior conviction, The magistrates ruled against that contention, and it was set out in th case. But in the Court of Queen's Bench a new point was stal namely, that, whether there had been a prior conviction or not,

(1) (1869) 34 J.P. 150. (2) (1874) LR. 9 Q.B., 412.

stituted. The objection was taken that the point had not been before the justices. The Court overruled the objection, md considered the point - two Judges not even limiting it to

_ That was the settled law nearly fifty years ago : and in 1881 the lew South Wales Legislature, with the full knowledge of that interpretation repeated and settled, adopted the same language. » In Ex parte Anderson (1) the Supreme Court took the same view. A mandamus was granted to compel justices to state a case so as to enable the appellant to argue before the Supreme Court a point

the Court was of opinion that it could entertain, however it might ultimately decide, the new point, the mandamus would have been

dence, if a litigant, merely because some decisive but unusual point escapes attention, were to be debarred from the benefit of the Supreme Court's ruling on the point, Parliament would have failed _ to meet an obvious necessity. The decisions I have quoted show

• that, in the opinion of the Judges who gave them, that failure did "not exist ; and I agree with them. That establishes, in my opinion, t, so far as the State Act operates, the case stated was open to the Supreme Court to decide every point of law that was relevant to the ts stated. Unless, therefore, some competent law intervenes to (1) (1920) 20 S.R. (N.S.W.), 207.

incurability, but the third (Blackburn J.) so limiting it. They ,

H.C. or A. 1922-1993.

• _ GEORGE Hopsox Lap, AUSTRALIAN Tieer Worxers' Usrow.

cut down that jurisdiction, it could and should be exercised whatever the point of law may be, subject only to recognized principles gua ing that exercise, as, for instance, curability already mentioned.

2. Cause Pending. - First, when the matter was in the Supreme Court, was it a " cause" within the meaning of the Judiciary det? Next to " matter," "cause" is the most comprehensive of terms in this connection. " Matter" is independent of parties, " cause" : not: " matter" includes an incidental proceeding ; " cause " refers to the main controversy between the parties. But, given a subjee of litigation and contesting parties, then any lawful process' instituted for the determination of the controversy is a " cause." The Oxford Dictionary gives even a wider connotation to the word than I, having regard to the specific provisions of the Judiciary Act, think necessary. I do not fail to observe that the Act employs the word ' includes " and not ' means," and I do not say it wo not be possible to gather a larger meaning of the word " cause" if requisite to carry out the main intention of Parliament. Bu accepting for this purpose the limited meaning of "cause that I have ascribed to it, the next question is what is included

• cause "

the word " pending." Is that expression restricted to a which is still in the Court in which it originated ? Or is it applicable to the cause when it has reached a higher Court by way of appeal o1 removal ? One very noticeable use of the word " pending " oc in sec. 45 which shows that the Legislature understood that a cause might be " pending " in the High Court though not originally com menced there, And, if remitted under that section, would the caust be pending in the Court to which it was remitted ? Clearly it would. This indicates that the ordinary mPa of "cause pending " is meant to be adhered to. That a cause is " pending" in the Court which it has reached on appeal is demonstrable. In South Australian Land Mortgage and Agency Co v. The King (1) I quoted a passage from the judgment of Ellsworth C.J. in Wiscart v. Dauchy (2), begin- ning : - * An appeal is a process of civil law origin, and removes a cause entirely ; subjecting the fact as well as the law, to a review a retrial." The House of Lords so regards it. 'Two instances taken

at random will illustrate this - Stockton and Darlington Railway v. (1) (1922) 30 C.L.R., 523, at p. 552. (2) (1796) 3 Dall., 321, at p. 327. -

Brown (1), in 1860, and Williams Bros. v. E. 2), in 1914. The Imperial Legislature so regards it (see Judicature Act 1873, sec. 24, sub-sec. 5).

3. Sec. 40a of the Judiciary Act - The case has reached this Court, and it is so argued, via sec. 40a of the Judiciary Act.

The first problem as to that is whether it was at any time a

"cause pending in the Supreme Court." I leave aside for a moment the words "there arises any question as to the limits inter se," &c. Assuming my view as to secs. 101 and 106 of the Justices Act to be correct, the case, so far as the provisions of the State law were concerned, was properly brought into the Supreme Court on appeal. What Federal law prevented that ? Not sec. 38a, because that section assumes that an appeal may be properly instituted in the Supreme Court and that in the course of the appeal the question inter se arises. When that does arise, and not before, the hand of the Supreme Court is stayed so as to deprive it of all power thenceforth to "entertain or determine" the matter. From that moment the " matter " - whether a though unchanged in itself so far as sec. 38a is concerned, is taken out of the hands of the Supreme Court altogether. What becomes of it? It may have been up to that moment a purely State matter - as, for instance, under a State income tax law, or a State stamp law,

ora liquor law; or it may have been under a Federal law. But, what- ever its previous nature, it becomes at the moment the constitu- tional question arises, and not before, a Federal matter of which the State Court is, by virtue of sec. 77 (11.) of the Constitution, completely divested. But it is still a living " cause " ; and, as to what is then to be done, the section (sec. 384) says: " The jurisdiction of the High Court shall be exclusive of the jurisdiction of the Supreme Court." That is in express terms defining pro tanto under sec. 77 (11.) * the extent to which the jurisdiction of any Federal Court shall be exclusive of that which" (1) " belongs to " (State jurisdiction) "or" (2) "isinvested in" (Federal jurisdiction) "the Courts of the States." And, as it relates to Courts both " of first instance " and * of appeal," it follows that the High Court jurisdiction spoken of is both original and appellate. That double inclusion is obviously intended so as to

(1) (1860) 9 H.L.C., at p. 262. (2) (1914) A.C., 510, at p. 534,

make sec. 384 accord with the terms of sec. 74 of the Constitutior But, having deprived all State Supreme Courts of jurisdiction ei original or appellate to deal with the matter and having said that: High Court's jurisdiction to deal with it shall be exclusive, the next question is, what is meant by the High Court's jurisdiction ? _ cannot be limited to appellate jurisdiction, for a very simple and clusive reason. Since "matters involving any question, arising, as to the limits inter se,' may originate as a purely Sta matter of jurisdiction, let us suppose it originates in the Suprem Court and proceeds half way through a trial (not for indictal offence). The Supreme Court is seised of the matter, but at a gi moment the question postulated by sec. 38a arises. At that moment the Supreme Court is stripped of jurisdiction and the High Court's "jurisdiction" is exclusive. What jurisdiction? Not appellat for there is as yet nothing to satisfy the provisions of sec. 73 of Constitution, and these cannot be enlarged. Clearly, then, sec. 3 includes original High Court jurisdiction to be exercised by vi of sec. 30. Carry the matter further : - Suppose the trial ends and Judgment is given by the Supreme Court as a Court of first instance, without any suggestion of a Federal question; and suppose appeal to the Supreme Court, that Court exercising appellate juris- diction, there arises in the course of argument the necessary questi of limits 'ter se : again the hands of the Supreme Court on appeal are stayed. Is the cause a "cause pending" in the Supreme Court ? I should say, indubitably yes. Is it then pending in original jurisdic~ tion? I should say, indubitably no. Then comes the crucial inquiry : Is it "a cause pending in the Supreme Court " within the meaning of sec, 404? Can.that question be reasonably answered except affirmatively ? In my opinion it cannot. But if so, it is, though in the appellate jurisdiction of the Supreme Court, " removed " to the High Court just as before. It is thrust out of the Supreme Court, and, unless it is homeless or a legal outcast for the time being, its home is by force of the statute in this Court. And what is true of the appellate jurisdiction of the Supreme Court in one case is true in all. Let us see what the section says. Sec. 40a says: " When, in any cause pending in the Supreme Court of a State, there arises any ques- tion as to the limits inter se" &c., then it shall be the duty of the -

Court to proceed no further in the cause and the " cause shall be by irtue of this Act, and without any order of the High Court, removed othe High Court." '* Cause pending " being, as I have said, a term applicable to both original and appellate jurisdiction of the Supreme 'ourt, the "cause," whatever it is, is "removed" by the self- operating provisions of the section to this Court, which by later words is directed to hear it as in its original jurisdiction. The theory of the legislation is plain. The original jurisdiction of the High Court ean only exist in certain matters. One of these is the class mentioned in sec. 30 as involving the interpretation of the Constitution. The

• never comes into existence as such for the purpose of

"matter see. 40a until a certain event happens, namely, the arising of the ques- ion postulated by sec. 38a or sec. 40a. The moment that arises he jurisdiction of the Supreme Court vanishes and the cause passes by force of the statute to the High Court to be dealt with under its original jurisdiction. All the rest is procedure. This case was a cause pending in the Supreme Court up to the instant the fatal point rose, and then the Jaw removed it into this Court. It is in our hands, ready to be determined.

4, Construction of Sec. 3 of the Act of 1921. - I now proceed to the matters of substance of the case itself - construction of sec. 3 of Act No. 29 of 1921. The first question of substance is as to the con- struction of the amending enactment. The Attorney-General of New South Wales took up two positions. His first and main position was that the amending Act was to be read prospectively so as to apply only 'to such successors or assignees or transmittees of the business of a party bound by the agreement as became such successors, &c., after 16th December 1921 - when the amending Act was passed. Thatisa well-known form of argument as to the non-retrospective operation ofan Act. Then, in the course of the argument, he developed a further contention, which appears to be novel. And before dealing with

tetrospectivity on the ordinary basis I shall consider this second contention. He said that, not only does the new Act require the "successors," &c., - the new feature in the legislation - to be prospect- ive, but it also requires, for the purpose of binding successors, that the "agreement ' - one of the old features in the legislation - must be

"same reasoning must apply to make the other former fea

prospective. Obviously, if he is right as to the " agreement,

prospective, that is, the "dispute" and the " business " - espe the " business," because that is mentioned for the first time in 1 t, in connection with agreements, though clearly impli

new the former legislation. The contention was that " agreement now in sec. 24 (1) must be read " distributively."" In one sense tha is always so - in the sense, I mean, that every agreement that con up for consideration must be tested to see whether it answers 1

description and conforms with the conditions of the section, Bu on that basis there is no need to go beyond the Attorney-Genera first ground. If '

distributively " goes further, as he second contends, it means, if I gather his argument aright, that, when word "agreement" is considered in relation to the words " parties to the agreement" simply, it means any agreement within section made after 15th December 1904, the date of the Prineipa Act; but, when the word "agreement" is considered in relation the phrase * the parties to the agreement or any successor, or assignee or transmittee of the business of a party bound by tl agreement," then it means only such an agreement as is made a 16th December 1921, the date of the amending Act. This, it was sug- gested, was the proper outcome of the language of futurity found it the sub-section, namely, (1) a memorandum of its terms shall be made in writing, &¢.; (2) the memorandum when so certified shall be filed ; (3) " and unless otherwise ordered . . . shall, between the parties to the agreement, have the same effect as, and be deemed to be, an award," &e, Sub-sec. 2 continues where no agreement is arrived at, and says: "' The Court shall, by an awa determine the dispute," &c. All these instances where " shall" is used were said to indicate futurity. So they do in one sense : the sense in which every command indicates it - because it is always something to be done or observed in the future. But the expressions: referred to are like the expression "to be provided" in Batt v. Metropolitan Water Board (1). That phrase was expanded by Lord - Wrenbury (then Buckley L.J.) as equivalent to "shall be pro- vided " (2). The argument was that " to be provided " was at Teast (1) (1911) 2 K.B., 965. 3 (2) (1911) 2 K.B., at p. 980,

it so absolutely clear as to compel the Court to construe it prospect- Now, in arguendo, Lord Wrenbury said (1) : - '* The operation a statute is correctly said to be retrospective when it enacts that nething which was not the law at a date anterior to its passing be treated as having been the law at that date. An enactment ich provides that in future the liability to repair certain existing shall rest upon certain persons upon whom it did not rest before s not retrospective in that sense." That was, in effect, what he had said in West v. Gwynne (2) a few months before. During the ment I quoted that case, and will not now do more than say that words "all leases " in that case are precisely similar for present poses to "any successor" in this case. Reverting to Buatt's Lord Moulton (then Fletcher Moulton L.J.) said (3) that the below "take the phrase 'to be provided ' as applying only to not existing at the date of the passing of the Act. To my mind e words 'to be' in the phrase * to be provided' have no relation 0 futurity, but to obligation. The supply of water to which the ection relates is, of course, a future one, i.e., one which takes place ubsequently to the passing of the Act." Lord Wrenbury said the me (4). So far as one case can assist another in construction, that is greatly in point. In principle there is no distinction. And, applying the principle so clearly stated by Lord Moulton, I am unable oread the enactment that the agreement " shall have the same effect asan award " and shall be deemed to be an award, as anything but a legislative command how the agreement is to be regarded in law. So as to the other phrases 1» pari materia: "* A memorandum of its s shall be made" and " shall be filed." Those are not simple futurity as if they were " will be" made and filed. They indicate the imperative conditions of legal vigour ; and, if complied with, then he next two phrases indicate the imperative nature of that legal vigour. I therefore hold that the Attorney-General's " distributive " contention is not sound.

I deal with his first contention that, assuming " agreement " to ontinue to have the meaning it had immediately before the amend- 'ment, the words " successor, assignee or transmittee " refer to persons

(1) (1911) 2 K.B., at p. 970. (3) (1911) 2 K.B., at p. 978. (2) (1911) 2 Ch., at pp. 11-12. (4) (1911) 2 K-B,, at p. 980.

who became such after the passing of the Act. Much of what I hay said, and notably the reference to West v. Gwynne (1) and Batt Case (2), apply with equal force to this contention. But there 4 additional considerations on both sides. The Attorney-Generi relied on cases which relate to impairment of existing rights obligations or the legality of past transactions. He quoted In Athlumney ; Ex parte Wilson (3), and Bourke v. Nudt (4), and he on the principle that, unless the language was so plain as to a of but one reasonable construction, the enactment ought, like penal act, to be construed as not imposing a burden on successo who became such prior to its passing.

In presence of decisions and judicial utterances apparently 0 varying aspect, it behoves the Court to find the basic principle b which to test any given case. That principle is stated in Marwell on Statutes, 6th ed., at p. 381, on the authority of the Institutes (2 Inst. 292) in these terms: "' Upon the presumption that the Legislature do not intend what is unjust rests the leaning against giving certai statutes a retrospective operation." That is the universal touch- stone for the Court to apply to any given case. But its application is not sure unless the whole circumstances are considered, that is to say, the whole of the circumstances which the Legislature may be assumed to have had before it. What may seem unjust when regarded from the standpoint of one person affected may be abso- lutely just when a broad view is taken of all who are affected. There is no remedial Act which does not affect some vested right, but, when contemplated in its total effect, justice may be overwhelmingly on the other side.

The Commonwealth Conciliation and Arbitration Act is not a penal - Act ; nor is it at all proper to regard it simply as imposing obligations or impairing rights. To regard it so would be to mistake its real import. It is a statute embodying a great public policy. Its pur- pose - of which the adventages or disadvantages are quite outside the province of a Court to discuss, since its inscription on the Statute Book is the declared national will - is to encourage and maintain industrial peace in the Commonwealth. To this end it establishes

(1) (1911) 2 Ch., 1. (3) (1898) 2 Q.B., at pp. 551-552. (2) (1911) 2 K.B., 965. (4) (1894) 1 Q.B., 725.

event or settle disputes which menace the industries of the Com- monwealth. Industrial disputes of course involve wages, hours of labour, safety, sanitation and other incidents of industry. The

modification of legal relations between employers and employees in relation to these matters in respect of those subjects is of course involved, and that means alteration of rights and obligations. But

is not the prime purpose of the legislation ; it is the neces

s of achieving the great object in view - the elimination of stop- in industries that serve the people of the Commonwealth as a whole. The interests of the disputants are great ; but it is because st uggles over their individual interests are detrimental to the great general interests of the Commonwealth that the incidental alteration 'of legal relations of those engaged in industry is undertaken. What resemblance has an enactment with that vast scope, charged with the welfare of a whole community, to an Act imposing a penalty on n individual, or altering the rights of a bankrupt? The Legislature s well aware that in various industries awards and agreements 'in the nature of awards had been made and were in operation over vast portions of this continent. The timber industry was an example; and Parliament must be taken to have known prior to its amending Act that in this very industry with which we are now concerned a dispute had arisen and was settled, partly by an award and partly by agreement regulating the mutual rights and interests of a large number of employers and employees in every State but Queensland. Parliament knew that to let some employers escape from the adjusted obligations would or might be grossly unfair to others, both in the 'same State and in other States, and grossly unfair to the employees _who had been led to make an agreement on the assumption that it "was as stable as a compulsive award. Parliament knew, moreover,

that a successor to a business could not become so without knowing

the statutory obligations of his predecessor to his employees. Parlia-

ment does not act in such a case without a comprehensive view of the

situation. Let us suppose the settled rights of those employees, and

the rights of competing employers under the same or a corresponding

statutory obligation, and also the general rights of the public to a

maintenance of industrial peace, to be placed by Parliament in one

high public authority, which by conciliation and arbitration may H. ©. or A.

scale of justice, and the claims of the successor of the business t¢ disregard individually the declared right of the employees to settled yemuneration and other industrial conditions in the other scale which can we suppose to weigh the heavier? In other words, apply- ing the test as stated in Mazwell, on which side is justice ? What case is made for restricting the application of the statute to he smallest ambit consistent with any possible construction of its words? To my mind the very opposite construction should be given to it as: remedial statute - as a statute which endeavours to replace stril and lockouts with public examination and decision and to remo industrial discontent by abolishing industrial injustice. The effort may or may not be successful, it may or may not be attended wi difficulty and error, its policy may be right or wrong - that is fo the Legislature to decide; but, as long as it is the legislative will maintain it, and, as the recent amendment shows, to confirm and t¢ strengthen it where judicial decisions have declared it weak, it is, 1 apprehend, the function of this Court to construe it in the spirit of its manifest purpose. I find this to be the acknowledged principle enunciated by highest judicial authorities. In The Pieve Superiore; Giovanni Dapueto v. Wyllie & Co. (1), the Privy Council, speaking of The statute being remedial ofa grievance . . . ought, according to the general rule applicable | to such statutes, to be construed liberally, so as to afford the utmos relief which the fair meaning of its language will allow." In Bist v. London and South-Western Railway Co. (2) Lord Loreburn LG (speaking of the Workmen's Compensation Act 1897, which, like the Arbitration Act, certainly in a sense imposed obligations on employers) said : " It is quite true that this Act is a remedial Act, and, like all such Acts, should be construed beneficially." For the purpose of giving effect to the manifest intention of Parliament in a remedial - statute, even the literalism of the Act may be departed from. The House of Lords did so in McDermott v. Owners of Steamship Tintoretto - (3) (see per Lord Loreburn L.C. (4) and Lord Atkinson (5) ). Lord Shaw (6) made a valuable contribution when he observed: "I

(1) (1874) LR. 5 P.C., 482, at p. 492. (4) (1911) A.C., at p. 38. (2) (1907) A.€., 209, at p. 211. (5) (1911) A.C., at p. 43. (3) (911) A.C., 35. (6) (1911) A.C., at p. 46.

chief, to interpret a remedial statute in the spirit of meticulous ee "w

Up on these considerations I reject also the first contention of the ae

torney-General, and hold that the words "successors," &e. eee 3 AusTRALTAN

to the same "agreements" as to the words " the partie

fo summarize my view, I state in connected form the legal effect paerit sub-sec. 1 of sec. 24 as amended : - * If an agreement between or any of the parties as to the whole or any part of the dispute rived at (at any time after 15th December 1904), a memorandum ts terms shall be made in writing and certified by the President, the memorandum when so certified shall be filed in the office of egistrar and unless ordered and subject as may be directed by ourt shall, as between the parties to the agreement or (as from

th December 1921) any successor or any assignee or transmittee

urposes, including the purposes of section thirty-eight." The Validity of the Amendment. - This was a question left over erv. B. W. Roach & J. B. Milton Pty. Ltd. (1). I cannot enter- n any doubt that the amendment is valid. There is a constant of overlooking the true meaning of " industrial disputes " id of confusing them with individual disputes. There is also a ger of limiting one's vision by conscious or unconscious reference the previous words of the statute, as distinguished from the er words of the Constitution. It is true that Parliament has ot legislated to the full extent of its powers; especially was that so f But the present amendment must be tested by the breadth

0 certain ascertained employers and employees - if that is the character of the dispute. Nevertheless, the essential nature of an

• 'industrial dispute " is quite distinguishable from that of an i

vidual dispute. The former concerns an individual employ affected in his industrial character. It does not assume to"

but is concerned with his obligations towards a class of employe of which the individuals may yet be unknown. When those obligations of the employer towards the class of employees settled, it is not beyond the essential nature of an industrial dis that they should be settled for his present and his future indi operations of the nature involved in the dispute. He might sistently be bound for the duration of the industrial bargain, bo respect of his present and of any future business of the class con in the dispute. It is within the competence of Parliament to how far this obligation shall extend ; whether, the rights of employ once accrued, the employer, regarding him in his capacity of ow of a particular business, can rid that business of those aceru rights by transferring it, or whether he can rid himself of # obligations towards the class of employees by engaging in an house of business of precisely the same nature.

In the present instance Parliament has thought it expedient, i order to prevent injustice or even a defect of the scheme of ind trial peace intended by the statute, to enact that the employe rights shall not be disturbed by the mere fact that the owner of tl business happens to be another individual. In this case the onl difference, so far as appears, is a mere change in name. It may ¢ may not be substantial. It is "" George Hudson Limited " inst of " George Hudson and Son Limited " ; and the change was eff in less than a fortnight after the agreement was registered. Inn opinion it was not ultra vires of Parliament to enact that the ne company should be bound by the obligations of the business. If) was not, neither can new employees in a business, though member of the same organization, be bound or benefited by an award ; the whole fabric of the constitutional power may be, and in practice must be, utterly ineffective and useless.

My brother, the Chief Justice, thinks this view is contrary to unanimous decision in Whybrow's Case (1), in which it was h

it the common rule as enacted by Parliament was beyond its 'tutional powers. Some passages are cited from the judg- ments in that case. The decision in that case was not " that it was:

beyond the power of Parliament to enact that persons not parties to an industrial dispute might, by means of an order of the Court of Arbitration, be bound by an award of that Court duly made for the purpose of preventing or settling that dispute." It may be confidently said that the Court that decided that case had no notion hat it was holding that where an organization got an award, whether by conciliation agreement or compulsorily, say for five years, no member of the organization who became so after the date of the dis- e, could derive any benefit from it, or be bound by it under sec. 29 (d), but was excluded from its operation. Such a notion is con- ary to every award that has been made for nearly twenty years, without challenge. The decision was that it was beyond the power of Parliament to enact that the Arbitration Court could award "a common rule," that is, to impose obligations on those engaged in the industry but altogether outside the area of the dispute. turton J. says (1) that the law "cannot overpass the area of the dispute as to subject matter or as to disputants." That, I think, is

so the view of O'Connor J. For myself I referred to " the whole area of the dispute in that industry" (2). It is true that it was held that an award can only be made as between the formal disputants ; and is is right because they necessarily delimit the area of the dispute, ind therefore an enactment which assumed to give power to make an award as to persons outside the area, that is, as between persons other than the formal disputants, was invalid, because inherently incon- mt with arbitration. But while the award can only be made as veen the formal disputants, it no more follows that the subject matter of their dispute is limited to them personally than it follows that acontract is necessarily limited at common law to the persons actually entering into the contract. The judgment of Lord Halsbury L.C. Don Jose Ramos Yzquierdo y Castaneda v. Clydebank Engineering and Shipbuilding Co. (3) is instructive as to this, with respect to successors." Whether the word "assigns" can be read into a

~ (1) (1910) 11 C.L.R., at p. 322. (2) (1910) 11 C.L.R., at p. 337. F (3) (1902) A.C., 524, at p. 530.

document is a matter of construction (Anglo-Newfoundland Deve ment Co. v. Newfoundland Pine and Pulp Co. (1) ). The principle familiar in equity that a third person not named as a party may s either of the contracting parties if possessed of an actual benefici right which places him in the position of cestui que trust under contract (Gandy v. Gandy (2) ). This principle, also in certain

a common law principle, was applied by this Court to Commonwe:

arbitration in Mallinson v. Scottish Australian Investment Co, There a person who was not one of the " disputants," and as to whom nominatim no award could possibly have been made, was hy entitled to sue a respondent to the award. If " disputants " o can be affected by an award, under the Constitution, the Court

clearly wrong in saying (4): " The new right created in the emplo by the Act operating on the award." That was the precise point on which this Court differed from the Supreme Court of New South Wales (see Mallinson v. Scottish Australian Investment Co. in the Reports (5) ). But if persons other than the formal disputants - say, members of organizations, and particularly those who become so after the date of the award - can by Parliamentary enactment be gra rights because they are within the contemplated area of the dispute they can equally be required to bear burdens, provided again they are. within "the area of the industrial dispute." That all raises

necessity of considering what is the true interpretation of an " ind trial dispute." I have so often stated my view as to the inevital result of overlooking the fundamental difference between such "dispute " and an ordinary. " individual" dispute which concerns primarily only the mutual rights and liabilities of the actual litigants, that I content myself primarily with a reference to R. v. Com- monwealth Court of Conciliation and Arbitration and Merchant Service - Guild of Australasia (6), at pp. 607 et seqq., and the references there given, The real principle applicable to the present case is this : - Given the area of dispute limited by reference to disputants, - that is, limited so to speak in superficial extent, the question is what - is the subject of their dispute, and what persons are contemplated

(1) (1913) 83 LJ. P.C., 50, at p.52, (5) (1920) 20 S.R. (N.S.W.), 251, at (2) (1885) 30 Ch. D., 57. pp. 257-258.

(3) (1920) 28 C.L.R., 66. (6) (1912) 15 C.L.R., 586. : (4) (1920) 28 C.L.R., at p. 72.

y that dispute to be affected ; that is to say. while preserving the superficial area of the dispute, how deep does the dispute extend - in other words, what persons are intended to be affected as repre- ented by the formal disputants, as well as what conditions are to affect them and for what period of time. This at once avoids the common rule," which is an extension of the superficial area of the dispute, and gives full effect to an award in respect of the 'industrial dispute " by making it effective throughout the whole iod of the operation of the award for and against those who

The very nature of an " industrial dispute," as distinguished from an individual dispute, is to obtain new industrial conditions, not merely for the specific individuals then working from the specific individuals then employing them, and not for the moment only, but for the class of employees from the class of employers limited by the bit of disturbance or dislocation of public services which has isen or which might arise if the demand were not acceded to and observed for a period really indefinite. The concept looks entirely beyond the individuals who are actually fighting the battle. It is a battle by the claimants, not for themselves alone and not as against he respondents alone, but by the claimants so far as they represent their class, against the respondents so far as they represent their lass. "Successors" in the employer's business are in exactly the e position as '* successors" in Vzquierdo's Case (1). If Parlia-

ment therefore chooses to include " successors," it may. 1 requote a passage from the judgment of Lord Shaw in Butler v. Fife Coal Co. (2): - * The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which s that,

"consistently with the actual language employed, the Act shall be

confront or threaten persons or classes of His Majesty's subjects

interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable." Applying those words to the constitutional provision which was designed to secure to the people of the Commonwealth a means of averting or ending industrial disturbance or dislocation by inducing (1) (1902) A.C, at p. 530. (2) (1912) A.C, 149, at pp. 178-179.

H. C. or A. 1922- ~~ Grorce Hupsox Lap. e. AUSTRALIAN Treer Workers" Unton.

or awarding fair conditions, I am utterly unable to give the "industrial dispute" a connotation that would not merely fail : secure the end aimed at. but would even introduce additional evi by discriminating between employees who became such after # dispute and those who were employees before, and would enal employers, by a mere technical transfer of a business or a mine to different legal entity, to defeat any award whatsoever. That has. hitherto been the understanding of the Australian people ; and T

not prepared to introduce it. In my opinion the decision of the Stipendiary Magistrate correct, and should be affirmed.

Hicerxs J. The appellant company has been convicted by Stipendiary Magistrate of a breach of an agreement certified filed under see, 24 of the Commonwealth Conciliation and Arbitrat Act 1904-1920, The breach consisted of failure to carry out 34' Employers shall keep a copy of this agreement posted i a conspicuous place on each works, readily accessible to employe There are two objections of substance taken to the conviction- (1) that on the true construction of sec. 24, as amended in 1921, appellant is not bound by the agreement; (2) that if the section as amended purports to bind the appellant, it is beyond the power of the Federal Parliament. Objection 2 was not taken before magistrate or mentioned in the special case stated by the magis under the Justices Act of New South Wales for the opinion of Supreme Court of the State.

It appears that during the course of proceedings in a disp

of the respondents, a company called "George Hudson and Si Limited * made an agreement with the Union as to the matters dispute. The agreement was made on 10th November 1920; having been certified by the President, it was filed on 17th Decemb 1920. But on 30th December 1920 a new company was incorpo) ated called "George Hudson Limited." It is not disclosed whe the new company had or had not the same shareholders holding t] same proportion of shares as in the former company ; but it has be admitted before us that there was not a mere change of name

al resolution under the New South Wales Companies Act, and it the whole business and assets were assigned to the new com-

should be binding on " any successor, or any assignee or trans- ttee of the business of a party bound by the award, including any oration which has acquired or taken over the business of such ty; and sec. 24 (1) provided that agreements are to " have he same effect as, and to be deemed to be, an award for all purposes." jut on 17th November 1921 the High Court decided, by a majority. hat sec, 29 (ba) did not apply to agreements (Carter v. E. W. Roach J. B. Milton Pty. Ltd. (1) ). Parliament promptly took steps to Iter the law as declared in Carter's Case, and on 16th December #21 an Act was passed (No, 29 of 1921) which inserted in sec. 24 the section as to agreements, after the words " parties to the greement," the words " or any successor. or any assignee or trans- ee of the business of a party bound by the agreement, including corporation which has acquired or taken over the business of uch party." That is to say, not only were awards to be binding n assignees, but agreements were to be binding. This position is ot disputed, but it is contended by the appellant that the amend- nent applies only to agreements made ajter the amending Act. The leged offence took place on 14th February 1922, after that Act.

But before dealing with the two points of substance, this Court is

Judiciary Act - * When, in any cause pending in the Supreme Court of a State, there arises any question as to the limits inter se of the stitutional powers of the Commonwealth and those of any State it shall be the duty of the Court to proceed no

The company was convicted of the offence on 7th March 19 and, in accordance with sec. 101 (1) of the Justices Act 1902, t magistrate stated a case for the opinion of the New South Wi Supreme Court. The Supreme Court gave its decision on August 1922, purporting to affirm the determination of the mag trate, but "subject to the determination of the constitutio question arising herein." I concur with my learned colleagues i the view that if sec. 40a applies at all to the case, at all evel the appeal to the Supreme Court could not be completely decide¢ without a decision on the constitutional point, the Supreme should have dropped the case, and made no order of any sort; fo under sec. 40a, it becomes " the duty of that Court to proceed further in the cause," and all the proceedings are to be transmit to the registry of the High Court.

But it is urged for the Union that sec. 40a does not apply to t case at all - that the words "cause pending in the Supreme Court' does not include an appeal pending in that Court. If this view | right, Parliament has failed in achieving the manifest object of Judiciary Act 1907 - the Act amending the Judiciary Act 1903 e taining sections which are now sec. 38a, the amendments of sec. and sec. 40, sec. 40a, sec. 41, and the amendment of sec, 43. manifest object was to get rid of the awkward position created the decision of Webb v. Outrim (1) given in 1906. The Constitutio had not abolished the right to appeal direct from the Supreme Cor of the States to the Privy Council; and, on such an appeal froma Supreme Court, the Privy Council had decided that Federal officer were subject to State income tax, whereas the High Court had decided to the contrary. The object of the Act of 1907 was to prevent recurrence of such a position, by depriving the Supreme Courts of jurisdiction to decide constitutional questions as to the limits inter se of the powers of the Commonwealth and the powers of any State. See. 38a therefore provided that on such questions the jurisdiction of the High Court shall be "exclusive of the jurisdiction of the Supreme Courts " so that the Supreme Court " shall not have juris- | diction to entertain or determine any such matter, either as a Court of first instance or as a Court of appeal from an inferior Court" ; and

, 40a (sec. 5 of the Act 1907) fills the gap created by sec. 38a. At all events, if sec. 40a does not relate to appeals when such a ques- 'ion arises in the Supreme Court, there are no means provided for having such a question determined at all; and it is our duty to pre- me that Parliament did not intend such an absurdity. and to treat the word " cause " in sec. 40a as including an appeal cause unless there is a clear provision to the contrary. There is nothing in the

word "cause" in itself to prevent us from treating " cause pending 'inthe Supreme Court" as including a special case stated for the opinion i the Supreme Court ; but it is said that we are precluded from so

ating it by sec. 2 of the Principal Act of 1903. Under sec. 2

"unless the contrary intention appears ' - '' cause" includes (not eans) any suit, and also includes criminal proceedings ; and "* suit " includes any action or original proceeding between parties ; and matter" includes any proceeding in a Court whether between parties or not; and "appeal" includes an application for a new trial, &c. To say, however, that a word "includes" A is not to ay that the word excludes B; and sec. 2 contains nothing to negative that application of " cause " in sec. 40a to which, but for it. the words of secs. 384 and 40a would obviously point.

It is further urged for the Union that no question arises here as to the limits of powers of State and Commonwealth inter se. But the ion of the Judicial Committee in the Builders' Labourers' Case (Jones v. Commonwealth Court of Conciliation and Arbitration (1) ) compels us to hold that objection 2 involves a question as to the its inter se.

Then it is urged that the question as to the limits inter se did not e in a "cause pending in the Supreme Court" ; for the question was neither raised before the magistrate nor referred to in the special case stated by him for the Supreme Court. As I read the special _ case, it does not contemplate this question at all. The case states that two points were taken - (1) that the Act of 1921, sec. 3, amend- ing the Conciliation Act, has no retrospective effect, does not apply agreements made before the Act of 1921; and (2) that the agree- "Ment as to posting (clause 34) does not deal with an " industrial "matter." Then he states: "I determined that the matter" (sic) (1) (1917) A. C., 528; 24 C.L.R., 396,

H.C. or A. 1922-1923.

Gxrorce Hupsox Lap. AUSTRALIAN Tos Wor Usto

"hereinbefore stated afforded no ground of answer or defence 1 the said information. The question for the opinion of the Court whether my said determination was erroneous in point of law." confess that but for certain decisions in England, and the decision o the Supreme Court in Ex parte Anderson (1), 1 might have b inclined to the view that the question as to the limits inter se did no arise for determination in the Supreme Court at all. But the Court of King's Bench, in dealing with the Act from which the Justices 4 1902, Part V., is copied, treated the special case as enabling higher Court to entertain all objections to the conviction whether mentioned in the special case or not (Knight v. Halliwell (2) ). This view has been accepted as the true view in other cases (Ex pa Markham (3); Kates v. Jeffery (4) ); and I think that where an Act (such as the Act 20 and 21 Vict. ¢. 43) has been copied by one of our legislatures from an English Act, it should, prima facie, be construe in the same way, taken with the interpretation accepted in the English Courts, At all events, as the English cases have not bei attacked, I do not feel free to examine the position as if it involved a novel and unsettled point; and my conclusion is that see. 4 enables us to deal with the objections of substance now, although there has been no formal appeal or security. 7

In support of objection 1, the appellant relies on the well-known presumption against treating a statute as retrospective. It is, course, a mere presumption, which must yield to express words But, in my opinion, it is an abuse of language to call the amendi Act of 1921 retrospective if it merely imposes a future duty on exist ing persons as to existing agreements. On the magistrate's decision sec. 3 of the amending Act of 1921 does not impose any duty other than a duty for the future - after 16th December 1921. Sec. 3 says" that sec. 24 of the Principal Act "is amended " - that is to say, amended as from that date. From that date onwards, it is to be an offence for a successor or assignee of a business not to keep an award posted. The assignee of a business is not to be treated as an offender because of not posting the award before 16th December 1921. for there is no duty imposed on him until that date. Then, when the L

(1) (1920) 20 S.R. (N.S.W.), 207. (3) (1869) 34 J.P., 150. (2) (1874) LR. 9 Q.B., 412, (4) (1914) 3 K B., 160.

de, certified and filed under the original Act ; for sec. 24 applies any such agreement, and there is not a vestige of intention shown

mistake to suppose that because the duty imposed is future, all

be treated as future also. The Chief Justice of New South Wales, judgment, has aptly referred to the case of R. v. Inhabitants of _ Mary, Whitechapel (1). Tn that case there w & 10 Vict. c. 66, providing that " no woman residing in any parish th her husband at the time of his death shall be removed

r twelve calendar months next after his death." Before the Act,

s set aside after the Act; for the section, though prospective as he removals contemplated, was not retrospective for the mere that part of the requisites for the operation of the section s drawn from a time antecedent to the passing of the section. Lord Denman C.J. said (2). " the clause is general, to prevent all ovals of the widows described therein after the passing of the Act : description of the widow does not at all refer to the time when 1e became widow." So here, the description of " agreement." or of suecessor,"" or of " assignee," does not at all refer to the time when e agreement was made, or the time when the succession or assign- ent took place. The same principle was adopted in R. v. Inhabitants ( Christchurch (3). Before the Act, 9 & 10 Vict. c. 66, five years esidence in a parish made paupers irremovable; but that Act xcluded from the computation of the five years the time during hich a person " shall receive " not reside ; and the Act was held - notwithstanding the word " - to apply toa case where such relief had been received before passing of the Act. The Court there said that the argument

d on retrospectivity was founded on a misconception: " The ite is prospective only : its direct operation is only on removals . . this space of time may consist in part of time passed before

a (1) (1848) 12 Q.B., 120. (2) (1848) 12 Q.B., at p. 127. 7 (3) (1848) 12 Q.B., 149.

e words of the Act or section to which the duty is to be applied are

'words are inserted in sec. 24, they clearly apply to any agreement H. C. oF A.

scription ; but they are not therefore classed with the retrospee statutes." Soin Ex parte Dawson; In re Dawson (1), it was held tl sec. 91 of the Bankruptcy Act 1869 applied to settlements made bef the pass

property " made by a trader (not for value, &c.) should be voi against the trustee in bankruptcy if the bankruptcy took place w ten years from the settlement, unless it were proved that the banl rupt was, at the time of the settlement, able to pay all his debts. post-nuptial settlement was made in 1865; the Bankruptcy Act wit this section was passed in 1869; the bankruptcy took place in 1 and it was held that the section applied to the settlement. So in this case, the provision of the amending Act of 1921, imposing:

assignees of a business the burden, as well as the benefit of an agr ment made by the assignor, imposes the burden as from December 1921 on " any assignee," whether the assignment t place before or after that date. The appellant here asks us, in

to treat the new words in sec. 24 as if they were not " any assi

ber 1921." If there is a licence fee imposed by Act on hawkers, th is no presumption that the Act does not apply to existing hawke See also Page v. Bennett (2); Ex parte Pratt; In re Pratt (3); We v. Gwynne (4). In the case last mentioned the members of tl Court of Appeal point out the loose way in which the word * spective" is used in argument. A statute is not " retrospective because it interferes with existing " rights"; " almost every statut affects rights which would have been in existence but for tl ~ If an Act provides that as at a past date the law sh: be taken to have been that which it was not, that Act I underst to be retrospective." '' The question here is whether a cei

provision as to the contents of leases is addressed to the case of Act." "There is . . . a presumption that it" (the "speaks only as to the future. But there is no like presumption

(1) (1875) LR. 19 Eq., 433. (3) (1884) 12 Q.B.D., 334. (2) (1860) 2 Giff, 117. (4) (1911) 2 Ch.

an Act is not intended to interfere with existing rights. Bis do." The Attorney-General, however, has placed strong reliance on a se of Bourke v. Nutt (1). In my opinion, that case, when closely mined, conflicts in no way with West v. Gwynne (2). Under the ementary Education Act of 1870, when a member of a school board came bankrupt (under the Bankruptcy Act 1869). his office became ited, but he was eligible for re-election. One N. became bankrupt, his bankruptcy was still pending when the Bankruptcy Act 1883 passed, That Act had the drastic provision that " where a debtor djudged bankrupt he shall . . . be disqualified for being elected" school board. N. was in fact elected after that Act. Two of e Judges of the Court of Appeal, Lord Esher M.R. dissenting, held, ing two Judges of the Queen's Bench Division, that the ion of the Act of 1883 did not apply to candidates who became krupt before the Act. This decision was based on two grounds - ) on the form of the words, "is adjudged bankrupt," meaning. a facie, hereafter adjudged : (2) on sec, 169 of the Act of 1883, ch, in repealing the Act of 1869, provided that all the provisions the Act of 1869 should apply to pending bankruptcies " as if this " of 1883 "had not been passed." The case is really an thority against the Attorney-General; for Davey L.J. lays stress the words used (3), " where a man is adjudged bankrupt," as prima facie " if any man shall or may hereafter be adjudged nkrupt "; and he says that if the words were " where a man is adjudicated bankrupt," they would refer to a " certain quality of e subject which may just as well attach to him by a previous udication as by a subsequent one." The case of In re Athlumney ; parte Wilson (4), is also clearly distinguishable. The presump- on against retrospectivity was applied by Wright J. to the case of n who had already, before a new Act. a complete vested right nder what was equivalent to a judgment of a Court. Under the picy Act of 1890 it was provided that when a debt has been d on an estate the interest should be calculated at 5 per cent. y. without prejudice to the right of a creditor to receive out of the

) (1894) 1 Q.B., 725. (3) (1894) 1 Q.B., at p. 740. (2) (1911) 2 Ch, 1. (4) (1898) 2 Q.B., 547.

estate any higher interest which his agreement gave him, a debts had been paid in full. But, before the Act of 1890, creditor, had proved his debt, and it included interest at a hi rate, than 5 percent. Then there had been a scheme of arranger adopted and confirmed, and approved by the Court, under which net estate was to be distributed among the creditors accordin their proofs. It was merely held that the new Act did not dives of his rights under his proof, and the scheme of arrangement. is all.

In my opinion, the decision of the Supreme Court on the constru tion of the Act is right. Parliament has shown with sufficier clearness that it intends to alter the law as applied in Carter v. EW Roach & J. B. Milton Pty. Lid (1), and to make agreements,

The second point taken is that the amendment made by sec. 3 of tl Act of 1921 is beyond the powers of the Federal Parliament, becau it purports to affect persons who were not parties to the disput which the agreement or award was made. If the point is right, follows that sec. 29 (ba), as to awards, is beyond the powers of th Parliament, and is beyond the powers of all the State legislati for no State legislatures can deal with disputes extending beyon one State. It is urged that the only relevant power conferred of the Federal Parliament is that conferred by sec. 51 (xxxv. make laws for " conciliation and arbitration for the prevention ar settlement of industrial disputes extending beyond the limits of an one State " ; and that there can be no conciliation or arbitration exes as to parties to the dispute. It is usually forgotten that the pows in sec, 51 is not to make laws for conciliation, &c., but to mal ' with respect to " conciliation, &c. But it is sufficient for my purpose to point to sec. 51 (xxxrx.) - Parliament can make k with respect to " Matters incidental to the execution of any po vested by this Constitution in the Parliament."

Now, under the scheme which Parliament had adopted for ciliation and arbitration, the primary duty of the President of Court is to secure agreement between the disputing parties; and only to make a compulsory award when an agreement cannot be secu ed

23 (2), 24). But nothing would be so likely to prevent agree- nts as the knowledge, on the part of the unions, that the employer ould get rid at any time of his obligations under it by assigning his ess - even by assigning it to a new company having the same shareholders holding shares in the same proportions as in the former

npany. It is only by some such provision as the present that the greement - or the award - can be made effective. In my opinion

the provision that assignees of the business shall be bound is " inci-

dental" to the power to make laws for conciliation and arbitration : just as a provision that executors of a party to the dispute should be und would be " incidental " to that power. Indeed, the Attorney- feneral has been driven logically to contend that a provision for binding executors of a party would also be invalid - the executors t having been parties. The Attorney-General has relied on the sion of this Court in the case as to the common-rule provision (Australian Boot Trade Employees' Federation v. Whybrow & Co. (1) ). ut the distinction between that case and the present is, to my mind, obvious. In that case, the provision enabling the Court to declare by order that any condition of employment, &c., determined by an ard shall be a common rule of any industry in connection with hich the dispute arises, would empower the Court of Conciliation to compel a condition of employment to be observed by employers who were not in dispute at all with their employees, and who had no relation with those in dispute. The provision did not relate to conciliation or arbitration in any way. But the provision here, that agreement (or award) made by parties in the course of concilia- tion (or of arbitration) shall be binding on assignees of the business, elates directly to conciliation and arbitration for the prevention and settlement of industrial disputes. I have read again my judgment in the Boot Trade Case (2), in which I concurred with all the other members of the Court in holding that the provision for making a common rule was invalid; and I am compelled to refer to that judg- ment as showing the distinction, as it appears to my mind, between "matters incidental" to the power conferred by sec. 51 (xxxIx.), and matters which are not incidental. I find that I said (3) : - " We are

(1) (0910) 11 CLR, 311. (2) (1910) 11 C.L.R., at p. 338, 4 (3) (1910) 11 C.L.R., at p. 345.

H.C, oF A. 1922-1923. ad Grorcr Hopson Lrv. v. AUSTRALIAN TrmBeR Workers' Unton.

to examine first the express power ; and the express power is not power to prevent or settle industrial disputes, but a power to make laws with respect to conciliation and arbitration (for the prevention, &e,): and any power to be implied must be a power incidental to con- ciliation and arbitration. It is not enough that it should be incident to, or appropriate to, or useful in aid of, the prevention or settlem: of industrial disputes. . . . Nothing is incidental to that power" (to legislate as to conciliation and arbitration) " which is not directly aimed at the precise method of dealing with industrial disputes - conciliation and arbitration - which the Constitution contemplates. In this case, the provision for binding assignees, &c., is directly aime at that method, so as to make the provisions for conciliation o1 arbitration effective. It is a provision directly conducive to the exercise of the power granted by sec. 51 (xxxv.) of the Constituti Men are not so likely to submit to peaceful methods of settling theit disputes, by agreement (conciliation) or award (arbitration) if th feel that those with whom they dispute can evade the obligations imposed by transferring their business to their sons, or by assig

it to a company having a new name and the same shareholde The Supreme Court of the United States has given a still more liberal construction to the " incidental " power. Under their Constitution, Congress has power " to make all laws which shall be necessary and proper for carrying into execution the foregoing powers" ; and it was held, in McCulloch v. Maryland (1), that because Congress had the power to levy and collect taxes, to borrow money, to regulate com- merce (inter-State and foreign), to declare war, to raise and suppo armies and navies, it had an incidental power to incorporate private banking company which the Government might use for the purposes of its business. According to that decision, it is not even essential to show that the Act passed as in exercise of the incidental power is absolutely necessary for the exercise of the express power; - it is sufficient to show that it is appropriate, or could fairly be deemed appropriate or suitable (see also United States v. Fisher (2); Hepburn v. Griswold (3) ). This last principle applies a fortiori to sec. 51 (xxx1x.) of our Constitution, which uses the words "' matters incidental."

(1) (1819) 4 Wheat., 316. (2) (1804) 2 Cronch, 358 (3) (1869) 8 Wall., 603, at p. 615

In my opinion, therefore, sec. 3 of Act No. 29 of 1921 is valid, and conviction should stand.

st ~rkE J. George Hudson Limited was charged on information it it did not keep a copy of an industrial agreement posted on its rks, contrary to the terms of an agreement certified and filed ursuant to the Commonwealth Conciliation and Arbitration Act, and ntrary to the provisions of the said Act. A Stipendiary Magis- e, before whom the case was heard, convicted the defendant, d imposed a penalty. He then stated a case pursuant to the ices Act 1902 of New South Wales, sec. 101, for the opinion of e Supreme Court, which purported to affirm the decision of the wistrate, subject to the determination of the constitutional ques- n arising in the case, namely, whether the provisions of sec. 3 of Act No. 29 of 1921 were within the powers of the Parliament of ommonwealth. The case was removed to this Court, pursuant, it was claimed, to the provisions of sec. 40a of the Judiciary Ad. d this Court on a former day announced that the determination the magistrate was correct in point of law, and should be affirmed, that reasons for this conclusion would be given on a later date. yw, I have had the privilege and advantage of reading and con- lering the reasons prepared by my brother Jsaacs, and I entirely ree with them. But I would add, in my own words, a few observa- ms upon the validity of the provisions in question here.

he constitutional power to prevent and settle industrial disputes ending beyond the limits of a State by means of arbitration and jon, was confined in its application, it was said, to the actual urticipators in the conflict. In my opinion, however, the real basis f the power is industrial disturbance and disorganisation. No oubt there cannot be an industrial disturbance without some uticipators, nor could there be conciliation without some person 0 conciliate, nor arbitration without some parties. But insistence on absolute definiteness of parties ignores very largely the known of industrial disturbances. They are not confined to the participators ; historically, the great industrial fights shave en waged by unions, for the benefit of all their members, employed

unemployed, present and future. And in Jumbunna Coal VoL. Xxxm, 31

associations or unions. As O'Connor J. said (2), " any attempt effectively prevent and settle industrial disputes by either of tl means " (conciliation or arbitration) "would be idle if individ workmen and employees only could be dealt with, . . . s system was therefore essential by which the powers of the Act ¢ be made to operate on representatives of workmen, and on bodies workmen, instead of on individuals only. But if such representati

representative body must have the right to bind and the power { persuade not only the individuals with whom the dispute has a but the ever changing body of workmen that constitute the trade." the other side, the Common Rule Case (3) was relied upon. The was decided that the provisions of the Arbitration Act which pt ported to authorize the Commonwealth Arbitration Court to deela a common rule in any particular industry, was beyond the powers ¢ the Parliament. But the observations of my brother Jsaaes ( embody the reasons for that decision and, in truth, the subsi distinction between the Common Rule Case and the Jumb

in it, although he was in no way involved in any dispute either personal activity, or as a member of an organization, or as a workin unit of one of two opposing classes in actual contest though not formally organized."

In the provisions now under consideration the Parliament k within the actual area of the industrial disturbance. As dra sec. 24 bound the parties to the dispute who made an agreemen

(1) (1907-08) 6 C.L.R., 309. (3) (1910) 11 C.LR., 311. (2) (1907-08) 6 C.L.R., at p. 358. (4) (1910) 11 G.L.R., at p. 337.

v, by the amending Act, the successors, &c., of the business of the H- ©. or 4. F . 922-1923

rty who made the agreement are also bound. The constitutional Ce "3

wer is not so weak, in my opinion, that it is limited to the settle- Gzorcx

nt of an industrial disturbance between the actual participators er

. If so limited, the power would be practically ineffective : ou irray industrial disturbances are to be settled or prevented, then the Towser |

5 i Worker: ower must extend to the ever changing body of persons within the eam

a of such disturbances. (See Attorney-General for Canada v. and Gilhula (1).)

Question asked by case stated answered No. Costs in Supreme Court and in this Court to be paid by the defendant company.

[HIGH COURT OF AUSTRALIA.] In rE THE JUDICIARY ACT 1903-1920 AND In rE THE NAVIGATION ACT 1912-1920.

litulional Law - High Court - Jurisdiction - Original and appellate jurisdictions 14 (, or A,

• The Constitution (63 & 64 Vict. c. 12), sec. 74. ee

The statement in In re Judiciary and Navigation Acts, (1921) 29 CLR, 267, 5 - ~ "at p. 264, that secs. 73 and 74 of the Constitution deal with the appellate power Sa a ec. 6.

of the High Court is not an authority for the proposition submitted to the Privy Council in Minister for Trading Concerns for the State of Western Australia v. Amalgamated Society of Engineers, (1923) A.C., 170, at p. 173, that the High Court has held that sec. 74 does not apply to a decision of the High Court in its original jurisdiction.

_ Dictum in In re Judiciary and Navigation Acts, (1921) 29 C.L.R., 257, at p.

• 264, explained.