High Court of Australia|1984-05-15|Before: McTiernan JJ

R v Bowen; Ex Parte Federated Clerks Union [1984] HCA 30; (1984) 154 CLR 207 (15 May 1984)

THE QUEEN v. BOWEN; EX PARTE FEDERATED CLERKS UNION [1984] HCA 30; (1984) 154 CLR 207

Mason(1), Murphy(1), Wilson(1), Brennan(1) and Dawson(1) JJ.

High Court - Original jurisdiction - Certiorari - The Constitution (63 & 64 Vict. c. 12), s. 75(v).

This is an application for mandamus and certiorari directed to the Full by the applicant, the Federated Clerks Union of Australia ("the Union"), under s. 143 of the Conciliation and Arbitration Act 1904 (Cth), as amended, for an order directing the cancellation of the registration of the Waterside Workers Federation of Australia ("the Federation") or for certain alternative relief in the nature of directions. (at p209)

2. The primary ground on which the application was made was that the Federation had engaged, or was engaging, in conduct or activities not authorized by or in accordance with its rules: see par. (k) of s. 143(1). The Union claimed that the relevant conduct or activities, namely the recruitment of tally clerks by the Federation, was not in accordance with its rules because, according to the Union, on its true interpretation r. 6(a) of those rules did not entitle the Federation to recruit tally clerks. (at p209)

3. The case presented by the Union in the Federal Court was that a tally clerk was not a waterside worker within the meaning of the expression "occupation of a waterside worker" in r. 6(a). The Full Court rejected the Union's case, holding that the words:

". . . 'occupation of a waterside worker' as used in rule 6 of the Federation's rules, should be construed as encompassing the occupation of a tally clerk whose predominant working activities are based on a ship, on a wharf, or in the vicinity of a wharf and which constitute part of the overall stevedoring operations of loading and unloading ships. Those activities include not only the physical transportation or storing of goods, but include the checking of the work being done by the persons who are engaged in the physical transportation and storing of goods, accounting, recording and, where necessary, weighing of goods and cargo." (at p209)

4. In reaching this conclusion, the Federal Court considered evidence placed before it by the Union of the common understanding in the industry of the term "occupation of a waterside worker", evidence which the Union suggested showed that the common understanding of the term excluded tally clerks. The Federal Court held that the evidence did not have this effect and that, on the contrary, an examination of the work actually done by tally clerks assisted the conclusion which the court reached. (at p209)

5. The case for relief sought in this Court hinges primarily on the application for mandamus. Initially counsel for the Union did not contest that the availability of relief by way of certiorari, in the circumstances of this case, rested on the existence of a bona fide claim to relief by way of mandamus. (at p209)

6. Counsel for the Union submitted that mandamus will issue whenever it appears that the court or tribunal below has made a fundamental error of law, and he uses the expression "fundamental error", in the sense of "serious or important error". The authorities do not support this proposition; instead, they insist that the claimant for relief must show that the ostensible determination by the court or tribunal whose decision is challenged is not a real exercise of the jurisdiction conferred, or a real performance of the duty imposed on it: see, e.g. R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, at p 242 . And, as Rich, Dixon and McTiernan JJ. (1933) 50 CLR, at p 243 pointed out, the claimant

". . . who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies." (at p210)

7. The Union seeks to show that there has been a constructive failure by the Federal Court to exercise its jurisdiction because it arrived on an incorrect interpretation of r. 6(a), thereby precluding the relief which the applicant sought under s. 143, and because it took extraneous considerations into account in arriving at the interpretation which it favoured. However, it is conceded that the interpretation of the rule was a matter which the Federal Court was required to determine in the exercise of its jurisdiction under s. 143. Indeed, it was an essential element of the Union's case for relief under the section that r. 6(a), on its true interpretation, did not entitle the Federation to recruit tally clerks as members of the Federation. An incorrect interpretation of r. 6(a) could only ground relief by way of mandamus if s. 143 could be construed as imposing on the Federal Court an imperative duty correctly to give effect to the true interpretation of the rules of a registered organization as they apply to the facts of a given case, and as conferring a corresponding right on the party independent of any decision of the Federal Court and enforceable by mandamus against that Court: see Reg. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte Ellis [1954] HCA 6; (1954) 90 CLR 55, at p 64 . (at p210)

8. Plainly, s. 143 does no such thing. Section 143(2), operating in conjunction with s. 143(1)(k), by conferring jurisdiction to make an order for cancellation of registration in the circumstances mentioned, proceeds on the footing that the Federal Court will determine, in the exercise of that jurisdiction and as an incident of it, whether the conduct or activities of the organization were authorized by or in accordance with its rules. Section 143(1)(k) does not make the correctness of the Federal Court's determination on that issue an imperative duty so as to create a right to review of that determination by mandamus. Finally, on this aspect of the case, the existence of the statutory bar provided by s. 118B(2) of the Conciliation and Arbitration Act against the bringing of an appeal from decisions of the Federal Court under s. 143 is an added reason for thinking that the section was not intended to make a decision by the Court on the interpretation of an organization's rules reviewable in this Court. (at p211)

9. The submission that the Federal Court had regard to extraneous material is based on the suggestion that the court, in dealing with the evidence of common understanding, looked to the actual work which tally clerks performed and called that in aid as a reason for sustaining its interpretation of r. 6(a). It is said that in so doing the court failed to give weight to the consideration that common understanding may develop in disconformity with logic and with the facts as correctly analysed. This is to assert no more than that the Federal Court made an error in the course of exercising the jurisdiction which the statute conferred. If there was an error, and we should be careful to say that we express no view upon that question, then it was an error that did not evidence a constructive or real failure to exercise the jurisdiction conferred by s. 143. The same comments may be made of the Federal Court's reference to statutory provisions relating to waterside workers in stevedoring legislation, another matter which the Union claimed to be an extraneous consideration. (at p211)

10. Counsel for the Union made the further submission that s. 75(v) of the Constitution, though it makes no reference to certiorari, impliedly confers original jurisdiction on this Court to grant certiorari in a case in which the Court does not otherwise possess original jurisdiction. This submission is untenable. (at p211)

11. Accordingly, there is simply no basis for the relief sought and the application is dismissed. (at p211)

Application for a writ of mandamus and a writ of certiorari refused.

Conciliation and Arbitration Act 1904(Cth)

R v Bowen; Ex Parte Federated Clerks Union [1984] HCA 30;

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R v Bowen; Ex Parte Federated Clerks Union [1984] HCA 30; (1984) 154 CLR 207 (15 May 1984)

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