George Hudson Limited v Australian Timber Workers' Union [1923] HCA 38

George Hudson Limited v Australian Timber Workers' Union [1923] HCA 38 - HCA 1923 case summary — Zoe

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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 -

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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.

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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

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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

At a glance

Court

Decision date

Before

Source

Judgment (248 paragraphs)

H.C. or A. 1922-1923.

Cited By (2)