Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd (No 1) [1913] HCA 76

Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd (No 1) [1913] HCA 76 - HCA 1913 case summary — Zoe

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H.C. or A. from the very nature of a case stated, I do not think there is 1913. anything in the sub-sections themselves to affect this opinion, ee. It is proper now to consider how far our duty and our power © to answer any of the questions put to us are affected by this view - of see. 31 (2) and (3). In three of the questions we are asked to assume the truth of etn the facts stated in affidavits filed on behalf of the claimant River organization, which are before the Court of Arbitration in the age course of a reference inter partes, and on that assumption we are (No. 1.] asked to decide a question of law. If, indeed, we were asked to os come to a conclusion upon this material, we should be obliged to draw a number of inferences. But what is placed before us is a ie hypothesis. The learned President informs us that there are also affidavits on the part of the respondents, or some of them. These. affidavits are not before us. The affidavits annexed to the case were filed on the question whether there is an industrial dispute between the claimant and some at least of the respondents. - Though their truth is in controversy, we are asked to assume . it. We cannot make the assumption asked. We are not fur- nished with facts, and therefore, in my opinion, we have no right to answer any of these three questions, all of which depend upon. assumption. {n questions 2 and 3 we are further asked to assume that certain employers refused the demands of the claim- ant organization. This is asking us to assume a fact essential to the existence of a dispute. Obviously, we cannot do this either. While the majority of the Court are of opinion that we cannot properly answer questions 1 and 2, which I therefore dismiss from consideration, there is a difference of opinion as to the treatment of question 3. In my opinion, the same reasons for which the first two questions are not proper to be answered apply with equal force to question 3. It is not a question of law arising upon a concrete state of facts. But as I am in a minority in holding this opinion, I must endeavour to give some answer to that question. This duty involves the necessity of interpreting question 3 in some sense admitting of a practical answer. I can only do this by treating the two assumptions already mentioned as states of fact. But I protest that this Court cannot properly take that course, for in its basis this

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question is identical with question 2, which it has been decided that we cannot answer. However, assuming that the suppo- sitions offered to us are facts, and assuming further that an implication, that demands not expressly refused had been refused by an employer, actually arose out of circumstances in which he had a reasonable opportunity of considering the demands, and of conferring upon them with other employers upon whom the like demands were made, some of whom would no doubt carry on business many hundreds of miles away from him, I should say that the Arbitration Court would be justified in finding, but only pro hac vice and not as a finding giving it jurisdiction, that there is an actual industrial dispute, and in proceeding to investigate the merits. But I must observe that my answer depends upon the concurrence of a number of facts which cannot be ascertained as such until the evidence on both sides has been fully given and closely analyzed. Facts then, the existence of which is usually controverted, must, if the question is to be answered in any sensible way, be in this case assumed as existing. For instance, it is usually testified and disputed that before the demand was made there was on the part of the employés a general dissatisfac- tion with the conditions of their employment, which expressed itself so openly and under such circumstances that the employers in all probability knew of the discontent. There is also in every real dispute evidence of a concrete demand and refusal of definite alterations of the conditions, and if we assume that certain employers, knowing of the discontent, refused the demands made upon them after sufficient opportunity to discuss and consider them, then if the demands were persisted in, and if there is evi- dence that an express or implied refusal was persisted in, the Arbitration Court would probably be justified in finding for the mere purpose of the hearing, and not as establishing the jurisdic- tional fact finally, that an actual industrial dispute existed. Let it be clearly understood that I do not say that there can be no dispute without the concurrence of all these indicia, but I do say that a genuine and not a mere paper demand, and a real refusal, are involved, and that such circumstances as I have instanced are of the class of facts which go toshow genuineness. But I wish to make it plain that my answer is based perforce on the several

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It is common ground that there must be parties and a subject matter before resort can be had to arbitration. Arbitration is - in itself a judicial proceeding for adjusting a difference between - two or more parties as to something. It is argued that parties - may differ about something without being in dispute. The parties - and the difference, it is said, may co-exist, and yet the thing or - subject matter be so little defined that the stage of actual dispute _ has not been reached. But, if the thing is undefined, it is - nebulous. I must leave to quicker-witted people the duty of defining an arbitration upon the nebulous. If A complains that - his wages are too low, and his employer, B, denies it, how can C arbitrate between them without first finding out what A's wage is, what A claims that it ought to be, and whether B refuses to pay it? The same thing occurs when A says his hours are too long. If A says that B's manager is tyrannical and B denies it, how can C arbitrate between them without finding out what are the alleged instances of tyranny, and whether B admits them? The object of the arbitration in such a case is not merely to pro- cure a general reproof of the manager, but to prevent a continu- ance or recurrence of specific conduct. To my mind it is impossible to arbitrate unless the subject matter is definite. True, outside the operations of this Act a reference may be expressed in very general terms, but that does not enable an arbitratot to do his work until he knows what is claimed on one side and refused on the other. If, therefore, the process of arbitration presupposes some dispute, how can there be arbitration to pre- vent the dispute? It is bare justice to assume that on all the subjects on which the Constitution, in sec. 51, gave power to legislate, the framers were thinking of things practical and prac- ticable. he application of this test of practicability is helpful in the construction of sub-sec. Xxxv., because it shows that even if Parliament meant conciliation to be applicable both to prevention and settlement, conciliation being practicable for both purposes, it did not necessarily mean to authorize the attempt to apply arbitration to both of the same purposes where as to one of them it is impracticable. Even if the sub-section is not to be con- strued reddendo singula singulis, it does not follow that for the

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H.C. or A. there was no conflict of evidence - the facts were clear and sty undisputed - for the purposes of the case stated. The whole Petes difficulty arose in the interpretation of the words "industrial Sete = dispute." It appears to be hard to satisfactorily define the class- Avstrat- name "dispute"; it is always easier to say whether a certain ao state of facts comes under the class name; so I asked: - *On the facts stated in the affidavits, is there an industrial dispute within the meaning («) of the Constitution, () of the said Act, Co. Lrp. and between whom ?" [No. 1.] No doubt, the question "Is there an industrial dispute?" is a mixed question of law and fact ; but when the facts are stated on which the claimant relies for proof of a dispute, it is a question of law whether they amount to a dispute (per Lord Maenaghten in Hoddinott v. Newton, Chambers & Co. Ltd. (1)). Whether a bicycle is a carriage within the Highway Act was treated as a question of law in Taylor vy. Goodwin (2). If there were a question of easement of light by user, and all the facts and dates were set out as alleged by the person claiming the easement, but were not yet proved, the Court might be asked, " Do these facts, if uncontradicted, justify the inference of a grant?" or "Do these facts disclose a primd facie case of easement by user?" and these would be questions of law. The matter is put plainly by Lord Brampton in Hoddinott v. Newton, Chambers & Co. Ltd. (3): - "I thoroughly agree that the arbitrator or County Court Judge is the proper tribunal to find every fact which is necessary for the determination of the question whether the arrangement in the particular case before it is or is not 'scaffolding' within the meaning of the Act. Such, for instance, as the mode in which the arrangement is put together, the component parts of it, the materials used for its construction, the use to which it is applied, the place and the size of the place in which it is used, the dimen- sions of it, &e.; and his finding upon such facts is, according to the general rule, final ; but whether upon the facts so found, the arrangement so constructed is a scaffolding sufficient to satisfy the requirements of sec. 7 is, in my opinion, a question of law, which in the first instance must be adjudged by him to enable

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drawing inferences from the facts. The Judge could not ask the guidance of the higher Court on facts, as facts were not within his function. But in civil cases the objection to the con- founding of functions could be waived: Maskelyne v. Stollery (1). In equity, there was no jury; and, from the facts proved, the Judge drew the proper inferences: Cf. Gresley's Hvidence in Equity, 2nd ed., pp. 459, 473. Where a presumption of law arose, the right of the jury to draw inferences was a mere fiction; for the Judge charged the jury that they must find in accordance with the presumption. The Courts of equity never referred such a presumption, although rebuttable, to a trial before a jury: Ellison v. Cookson (2). The doctrine that forbids the use of a special case "except for the purpose of obtaining the decision of questions of law arising upon facts which are admitted" is, as Lord Watson cautiously expresses it, one of the "rules which govern procedure on the common law side of the High Court of Justice": Burgess v. Morton (3). Even in the common law Courts, the theory that inferences from facts are not for the Judge has broken down, as illogical, unscientific, and impracticable, in several conspicuous instances, such as the issue of reasonable and probable cause in actions for false imprisonment, &c. Why are we to go back to the jury theory for our guidance in the case of such a Court as the Arbitration Court, or of a Court such as the High Court, in which the principles of equity are to prevail if the principles of the common law are in any way in conflict? I can see no objection, either practical or theoretical, to the President stating a case to this effect: - Here are the facts on which the claimant relies as showing an industrial dispute; the members of the High Court have been differing from the President and from one another as to the meaning of the words in the Constitution ; the High Court has not yet laid down any definition ; the respondents here say that even if all those facts alleged are true they do not show a dispute; before I plunge into a long and costly trial, I ask the High Court to say whether the facts alleged, if proved, as they stand, bring the case within the proper definition of the words "industrial disputes." I de-

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"conciliation and arbitration " - refer to both terms - * prevention and settlement." Nor is this position affected by the cheap and obvious criticism, that you cannot arbitrate between people unless they are in actual dispute. There are many cases in which the intervention of a conciliator-arbitrator may be most salutary, before the points of dispute have been formulated, before they have become " fairly definite" within the language of Conway v. Wade (1). As I said during the argument, Servia and Bulgaria may be massing troops on each side of a river, pre- paving for battle as to the division of Macedonia - there may even be a battle - although as yet neither State has made a definite demand. There may be two nations arming against each other, jealous, suspicious, bitter and abusive; there may be no definite matter in dispute between them; and yet a stray spark may at any moment produce an explosion. In industrial matters as well as in other evils, prevention is better than cure; and an arbitrator can often do good service by bringing the parties together to discuss an agreement if they are standing apart and preparing for a strike; by even getting them to formulate their precise demands, and to reduce the hostility to precise issues; by bringing them out of the region of hot antagonism into the region of cold reason. There is nothing either impracticable or absurd in the intervention of an impartial arbiter before diseon- tent has taken shape in definite demands, before growling has turned into biting. If A is complaining that his wages are too low, without saying what they should be, it may be that the matter is as yet too indefinite to amount to a " dispute"; but what is absurd or impracticable in the Court taking cognizance of the threatened dispute, trying to get the parties to come to an amicable agreement, and, if they will not, arbitrating? It must be borne in mind that, unless the Court can take cognizance of a threatened dispute for the purposes of arbitration, it cannot take cognizance of it for the purposes of conciliation (secs. 19,23). It is true that one of the first steps taken by the conciliator- arbitrator in the proceedings would probably be to ask the parties what the one claims and what the other offers, so as to narrow and make definite the difference; but we must not

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Before

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Judgment (449 paragraphs)