R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia

[26]

The nature of the writ of mandamus and the circumstances in which it is granted have been discussed in this Court in several cases, including R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1] ; R. v. Trebilco; Ex parte F. S. Falkiner & Sons Ltd. [2] ; Cuming Campbell Investments Pty. Ltd. v. Collector of Imposts (Vict.) [3] ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [4] ; Water Conservation and Irrigation Commission (N.S.W.) v. Browning [5] . The general powers of a Conciliation Commissioner with respect to industrial disputes, that is, disputes as to industrial matters which extend beyond the limits of any one State, are contained in Part IV, comprising ss. 34 to 58 of the Commonwealth Conciliation and Arbitration Act. Section 36 provides, so far as material, that a Conciliation Commissioner shall carefully and expeditiously hear, inquire into and investigate every industrial dispute which is before him. The same section provides that he shall do so by attempting to reconcile the parties and inducing settlement of the dispute by amicable agreement in the first instance. Section 38 provides that if no agreement as to the whole dispute is arrived at, he shall by order or award determine the dispute, or (if an agreement has been arrived at as to a part of the dispute) so much of the dispute as is not settled by the agreement. The first inquiry which a Conciliation Commissioner has to make under Part IV is whether there is an industrial dispute before him because that is the subject-matter with which he is concerned. This is an issue of fact. The Commissioner has not declined to hear and determine this issue. He has heard and determined it. It is not a collateral fact. It is a fact for his determination. The prosecutor must therefore show "that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void" (Bott's Case [1] ).

[30]

It may well be that this Court, if it had to decide this question for itself, would not attach the same weight to these considerations as the Commissioner, but this Court must be careful not to substitute its opinion for that of the Commissioner. The prosecutor is really seeking to do the very thing which it is said in Bott's Case [7] a prosecutor is not entitled to do, that is to say, ask this Court to enter upon an examination of the correctness of the tribunal's decision, and the sufficiency of the evidence supporting it, and the weight of the evidence against it. As is there said: "The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies." In R. v. Dayman [1] Lord Campbell C.J., in a case where a police magistrate had to decide whether a street was a new street within the meaning of a certain Act, said: - "He was bound to hear and to adjudicate upon this. I think he did do so; the question was whether Dawson Place was or was not a new street; on that issue was joined. He heard the parties and the evidence, and gave a solemn judgment that it was not a new street. Could we, supposing we should think that he was wrong in so determining, make an order that he shall give an opposite judgment? I think that we cannot do so. We have no authority to do more than order him to hear and adjudicate" [2] . In my opinion that case is on all fours with the present case. At one stage this Court had power under s. 21AA of the Act to determine the question of fact whether an industrial dispute or any part thereof existed, or was threatened or impending or probable, as an industrial dispute extending beyond the limits of any one State. But this statutory power was taken away when s. 21AA was repealed by the Commonwealth Conciliation and Arbitration Act 1947 which came into force on 10th October 1947. The repeal of that section and the general structure of the present Act and the language of some of its specific provisions, particularly s. 16, indicate to my mind an intention on the part of the legislature so far as it can to empower a Conciliation Commissioner conclusively to decide whether or not there is before him an industrial dispute extending beyond the limits of any one State, just as in Dayman's Case [1] it was for the magistrate conclusively to decide whether a street was or was not a new street. The prosecutor is really asking the Court to act as though s. 21AA was still in the Act.

[49]

Generally speaking, when a tribunal, other than a superior Court in the technical sense, is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked. That question may depend on questions of law or questions of fact or on questions both of law and of fact. As Griffith C.J. said in Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Pty. Co. Ltd. [3] : - " the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense." In the same case Barton J. said: - "Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance" [1] . But the important point is that the decision or finding with regard to the existence of jurisdiction, whether it be affirmative or negative, stands in a radically different position from a decision or finding given or made within jurisdiction on the merits of the case. The latter is conclusive and binding subject only to any appeal that may be given: if no appeal is given, it is absolutely conclusive and binding. The former is not conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It is open, if it be negative and wrong, to mandamus. The position is very clearly put by Coleridge J. in Bunbury v. Fuller [2] , in a passage quoted by Isaacs J. in the Engine-Drivers' Case [3] . His Lordship said: - "Suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits; and on its being presented, the Judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not proceed with the principal subject-matter according as he finds on that point; but this decision must be open to question, and if he has improperly either forborne or proceeded on the main matter in consequence of an error, on this the Court of Queen's Bench will issue its mandamus or prohibition to correct his mistake."

[52]

While, as I have said, the superior court which is invited to issue mandamus or prohibition must decide for itself on the material before it every question of law and every question of fact, there must, almost of necessity, be a difference in its attitude to the decision of the inferior court according as the question of jurisdiction depends on matter of law or matter of fact. If it depends on matter of law the question of law must simply be decided like any other question of law. But, if the jurisdiction depends on matter of fact, considerable weight is attached to the view of the facts taken by the inferior court. The position is clearly indicated in two passages quoted by Isaacs J. in Caledonian Collieries Ltd. v. Australasian Coal & Shale Employees' Federation [1] . The first is taken from the judgment of Kennedy L.J. in R. v. Assessment Committee of Metropolitan Borough of Shoreditch; Ex parte Morgan [2] , and is as follows: - "Where the evidence upon which the inferior tribunal has decided in exercising or refusing to exercise jurisdiction, is conflicting, that circumstance, though not conclusive upon the Court so as absolutely to deprive it of the discretionary power of granting the prohibition or the mandamus, will so far influence the Court that very strong grounds will be required before it interferes with the decision. " The second is from the judgment of Griffith C.J. in R. v. Yaldwyn [3] and is as follows: - "If the decision of justices on a question on which their jurisdiction depends is manifestly wrong, the Court will not pay any attention to their finding; if it manifestly proceeded upon a wrong notion of the law, the Court would not pay any attention to their finding; but if the facts upon which their jurisdiction depends were investigated by them, and their finding was not manifestly wrong, the Court will hesitate very much before it will interfere. That does not import that the Court abrogates its right to inquire into the jurisdiction of inferior Courts, but that it will decline to interfere when it is very doubtful whether the facts are different from what the inferior Courts have found. " After quoting, Isaacs J., referring to an arbitrator or a judge of an inferior court said: - "If he errs in law that is manifest. As to fact a doubt as to error is resolved in favour of jurisdiction" [1] . The case which was under consideration was a case of prohibition, and it may be that Isaacs J. had not in mind a case of mandamus. It may be more correct to say that, as to fact, a doubt as to error is resolved in favour of the decision of the inferior tribunal.

[55]

The Commissioner has decided that there was not a real and genuine dispute and has refused to deal with the application for an award. What he has decided is a jurisdictional fact, and this Court must examine his finding and decide whether it is correct or not, though, since the question is a question of fact, or at least involves questions of fact, it will, as I have said, regard with respect the Commissioner's view and will not grant mandamus unless satisfied that he was wrong. But, on the material before us, I feel satisfied that he was wrong. A log of claims was served on employers, and that claim was rejected or not granted. Whatever other view may initially have been open, it is now well settled that a demand and refusal of this kind is sufficient prima facie to constitute a dispute. In The Felt Hatters' Case [1] Higgins J. said: - "There was an industrial dispute, as the employees had demanded and the employers had (in effect) refused the letter of demand of 2nd August 1912." In the Burwood Cinema Case [2] , Knox C.J. and Gavan Duffy J., in the course of a joint judgment, said: "The dispute referred to the Arbitration Court was constituted by the refusal of the employers on whom the log was served to comply with the demands contained in it". In Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [3] , Evatt J. said: - "It need not be shown that in making the demand the demandants were ready to enforce it by strike or lock-out.". Of course the demand must be genuine in the sense that it is seriously put forward for serious consideration. Evatt J., in the case cited and on the same page, said that the question to be asked was whether the demand upon the respondents in two or more States was genuine or was a sham or pretended demand. He added: - "If, after considering all the circumstances, it is determined that the demands were genuinely made in the interests of an organization or its members, and they have not been acceded to, then, so long as the geographical limits of one State are exceeded, there is a dispute extending beyond the limits of one State" [4] .

R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia - [1950] HCA 40 - HCA 1950 case summary — Zoe

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Judgment (76 paragraphs)

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Cases Cited (1)