JACKA v Lewis.

JACKA v Lewis. - [1944] HCA 6 - HCA 1944 case summary — Zoe

[8]

Fraser, for the applicant. If the High Court has jurisdiction in this matter, it must be on the basis that s. 73 (ii.) of the Constitution has not been excluded by legislation. However, it is submitted that s. 73 (ii.) is excluded by s. 31 (1) of the Commonwealth Concilia- tion and Arbitration Act 1904-1934. This submission as to the effect of s. 31 (1) is supported by the history of that sub-section. In its original form, in the Act of 1904, s. 31 (1) provided: "No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever." By Act No. 6 of 1911, s. 14, the sub-section was amended by the insertion of (1) the phrase '"' or order" after "award" and (2) a provision that the award or order should not be subject to prohibition or mandamus. By Act No. 18 of 1914, s. 11, the provision relating to prohibition and mandamus was extended to include injunction ; and s, 214a was inserted, making provision for the determination of questions of law by the High Court. Act No. 43 of 1930, s. 24, inserted the words " Except as in this Act provided " at the beginning of the sub-section and the words "other than the High Court" after "in any other Court"; the nature of these amendments suggests that the language of the section was being revised so that it would be more apt. It is important in this connection to observe that in R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Whybrow & Co. (1) it had been decided that the legislature could not take away or restrict the original jurisdiction of the High Court under s. 75 (v.) of the Constitution in matters "In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth." That being so, the language of s. 31 (1), as it stood before the 1930 Act, was inappropriate inasmuch as its purport was inconsistent with s. 75 (v.) of the Constitution and the insertion of the words " other than the High Court " was necessary to cure the inconsistency. On the proper construction. of s. 31 (1) those words attach to the reference to prohibition, &c., and not to the earlier words of the section, so that the sub-section has two branches (each subject to other provisions of the Act) : (1) no award or order of the Court shall be challenged, &c., the implication being that neither the High Court nor any other court shall review the award or order; (2) no such award or order shall

[22]

Tt has been argued for the respondent that the section should be read as if the words "in any other Court other than the High Court " were attached only to the words " be subject to prohibition mandamus or injunction," and not also to the prior words " challenged, appealed against, reviewed, quashed, or called in question." When the words " other than the High Court" were inserted by the amending Act No. 43 of 1930, s. 24, it was probably the intention of Parliament merely to include in the section a recognition of the fact that s. 75 (v.) of the Constitution gave a constitutional right in certain cases to a party to institute proceedings for prohibition, mandamus or an injunc- tion in the High Court. This constitutional right had been affirmed in R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Whybrow & Co. (1), and in the Tramways Case {No. 1] (2). Such a right cannot be destroyed by any Commonwealth statute. The history of the section supports the suggestion that the intention of Parliament was probably as stated. The section was enacted in 1904 and was amended in 1911, 1914 and 1930. Originally the section applied only to awards and was in the following terms : "No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever.' Thus the words "challenged, &c.," and the words "in any other Court " appeared in the section before it con- tained any reference to prohibition, mandamus or injunction. The amendment of 1911 (Act No. 6, s. 14) applied the section to orders of the Court and introduced an exclusion of proceedings for pro- hibition or mandamus. Act No. 18 of 1914, s. 11, excluded proceed- ings for an injunction. The words "other than the High Court " were introduced by Act No. 43 of 1930, s. 24. The words "in any other Court other than the High Court " cannot be read as applying only to proceedings by way of prohibition, mandamus or injunction and not to the other proceedings mentioned in the section.

[59]

Section 31 (1) begins by excepting from its operation any proceed- ings which are authorized by the provisions of the Act. The pro- ceedings which are thereby excepted from the prohibitory words do not include an appeal to the High Court from an award or order of the Arbitration Court. That appeal, as has been observed, would lie independently of the Act by force of s. 73 of the Constitu- tion unless s. 31 (1) has taken it away. The prohibitory words of the sub-section are expressed to extend to proceedings, which include an appeal from an award or order of the Arbitration Court, being taken "in any other Court other than the High Court." The words " Except as in this Act provided " are capable of referring to the provisions of the Act relating to proceedings both in the Arbitra- tion Court and in the High Court. As these words are capable of this meaning, the words " in any other Court " are capable of mean- ing in any court other than the Arbitration Court or the High Court. The words "other than the High Court" are an exception upon the words "in any other Court." If these words "in any other Court" mean any court other than the Arbitration Court or the High Court, the effect of inserting the exception " other than the High Court" is to make the prohibition contained in the words beginning with "no award" down to the end of the sub-section, apply to every court other than the Arbitration Court. I think that the words " Except as in this Act provided," which, as I have said, are capable of applying to the provisions in the Act regarding proceedings in the Arbitration Court and in the High Court should be read as so applying. The words " other than the High Court " are in my opinion consequential upon the words " Except as in this Act provided." That reading brings the whole of the provisions of s. 31 (1) into harmony with the provisions of the Act regarding pro- ceedings in the Arbitration Court and the High Court in respect of awards or orders of the Arbitration Court or a conciliation commis- sioner. 'That reading also avoids the suggestion that the Parlia- ment did per incuriam alter the rule, which it had consistently adopted previously to the passing of the Commonwealth Conciliation and Arbitration Act of 1930, of excepting appeals to the High Court from the appellate power granted to the High Court by s. 73 of the Constitution.

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Judgment (65 paragraphs)

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