I think that, notwithstanding any individual intentions, the Queensland Act as actually enacted should be read in a sense which would leave it perfectly valid. The "organization" spoken of in the Statute is one which the Act assumes it is in the power of the State to control, to fine, to deprive of its property (sec. 50), and consequently to destroy.

A State cannot exert these powers over the federal organization as such: if such an authority were permitted, it could destroy the organization altogether, or make membership an offence. In my opinion, therefore, the word "organization," in order to save the Act in this respect, should be construed to mean a State organization, the word being a generic term applicable and very commonly applied to labour associations. If not so construed, the provision is, in my opinion, invalid, or, at all events, pro tanto nugatory.

The next partial objection relates to the Board of Reference. As to this, the particular provision objected to, namely, the judicial determination as to an alleged offence, is, I agree, outside the province of arbitration, and should be simply struck out.

Subject to that, and to the elimination of the 65 men who abandoned the claim, I am clearly of opinion that this application for prohibition should be refused, with costs.

The applicants in this case seek for orders prohibiting the Commonwealth Court of Conciliation and Arbitration and the President thereof from proceeding with an award made by him in the proceedings before the Arbitration Court.

The hearing before the President of the Arbitration Court occupied 93 days; and the learned President of the Court, after examining the written evidence (688 exhibits), hearing all the oral evidence, and seeing the demeanour of the witnesses under examination and cross-examination, came to the conclusion that there was an inter-State industrial dispute with the claimant organization, and that the claimant was entitled to an award, and he accordingly made an award. In his judgment the President said[48]: - "I have no doubt that there is in this case a genuine dispute between the claimant and the several respondents, other than Coburg; and I see no reason for saying that the Registrar's certificate to the effect that the dispute extends beyond one State has been rebutted by the evidence. I find on both these facts in favour of the claimant. ... In coming to the conclusion that there is a dispute - a real dispute, a dispute of real substance - I do not rely on the mere fact that the Association's log, containing the Association's definite requests, was twice sent, in May and in September, to each of the respondents and rejected; but I decline to accede to the argument to the effect that a fact so important should be coolly ignored. I conceive it to be my duty to examine all the circumstances, including the nature of the work and the conditions, the nature of the requests made, the attitude, character, manner, and explanations of the witnesses, the whole history of the case. The submission and rejection of the log, taken with what appears in the transcript of the shorthand notes, would, in my opinion, be sufficient to establish the existence of a dispute for the bare purpose of founding jurisdiction."

The evidence submitted to the Arbitration Court consisted of 5,300 pages of transcript from the shorthand notes and 688 exhibits. The additional evidence submitted to this Court consisted of 66 affidavits filed on behalf of the applicants and respondents, containing over 200 pages of foolscap, and the oral evidence given by A. G. Warton (of New South Wales) before this Court, which occupied two days. It is, therefore, impracticable from such a mass of evidence to set out all the facts that have led me to come to the conclusion I have arrived at; and it is unnecessary for me to do so, because my learned brother Isaacs has dealt so fully with the facts of the case and the law as to disputes. I, therefore, refrain from giving in detail all the facts I rely on for my decision.

At the same time, I think it necessary as a Justice of this Court to mention some of the reasons why I hold there was in this case an inter-State industrial dispute, and as Deputy President of the Arbitration Court to state why I think - as this Court holds (by a majority) that there was not any dispute with the registered organization (the claimants) - Parliament should consider the question whether it is not necessary to amend the Act so as to simplify proceedings, do away with technicalities in the procedure to get to the Arbitration Court, and allow parties to retain the benefits of awards obtained. This appears to me to be necessary, if the good work done by that Court under the Presidency of the late O'Connor J. and of the present President of the Court is to be continued.

In this case it has been contended, apparently successfully, that (1) there was no dispute as to 65 employees in Brisbane because they did not intend to persist in the claim, and wished to withdraw from the plaint after the demand was refused; (2) there was no dispute as to the rest of the members of the organization, although they did persist in their claim before and at the hearing, but they only persisted in their claims before the plaint before the Court, and did not strike.

There was no dispute as to 440 Brisbane employees of the same company, although they did persist in their claim before the plaint and at the hearing, and although they went so far as to insist on part of it, because they ended their employment by striking to enforce one of their demands in the plaint by what it was contended was a strike. None of the three classes of employees mentioned, therefore, apparently have any chance of keeping an award when they get it under the Act as it stands at present.

I understand that the majority of my learned colleagues do not hold that it is necessary to strike to make a dispute, but only that in this case the respondents have not satisfied them that there was a dispute. Personally, I do not see what the organization could possibly have done more than it did, after the log was adopted by the members, to prove a dispute, especially as the applicants for prohibition refused to see its officers or acknowledge any letter sent by the organization or its officers.

Under sec. 19 of the Commonwealth Conciliation and Arbitration Act it is clear that the Court has jurisdiction if there is an industrial dispute, and that industrial dispute has been submitted to the Court by an organization by plaint. I do not see how any other question is material if there is an industrial dispute and if any of the conditions set out in sec. 22 of the Act have been complied with. Condition (a) of sec. 22 has been complied with. If I am right there was an industrial dispute - it was submitted by a registered organization by plaint - and the necessary condition set out in sec. 22 has been complied with. The Court therefore had jurisdiction.

As to the question whether there was an inter-State industrial dispute, I propose to refer to some important facts to show why, in my opinion, there was a dispute, whether the evidence of the applicants' witnesses, or the evidence given by the witnesses for the claimant organization, is believed. A few facts, which I think are clearly proved, stand out like islands in the ocean of disputed facts and contentions.

Before stating those facts I think it as well to mention that this Court, although it has always refused to state what are the necessary indicia in every dispute, has held that there was a dispute in every case, so far submitted to it, where there was: (1) prior dissatisfaction of employees with existing industrial conditions known or communicated to the employers before the plaint filed; (2) a real common demand by a registered organization for the employees for new conditions claimed and a reasonable time allowed for compliance with the demands or for a conference; (3) a refusal or neglect by the employers to grant the conditions claimed or to confer; (4) persistence in the demand and refusal.

This Court has also held by the necessary statutory majority that the Arbitration Court has jurisdiction under the "power to prevent disputes" to arbitrate and to make a binding award if there is a threatened, pending or probable dispute; an actual dispute is not necessary. See Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. Ltd. [No. 1][49]. That decision has not been questioned, and although I did not agree with it I feel bound to follow it. While that decision remains as a decision of this Court we ought not to grant prohibition even if the Court finds on the facts of this case that there was not a dispute, unless the Court also finds that on the facts there was not even a "probable, threatened or impending dispute."

If the facts proved in this case do not prove even a probable, threatened or impending dispute I confess I do not understand the meaning to be attached to those three words in the Commonwealth Conciliation and Arbitration Act.

I hold that the complainant proved (inter alia): that there was a registered organization of tramway employees, under the name of the Australian Tramway Employees' Association (registered on 5th January 1911), and only one registered federal organization for tramway employees; that persons were authorized by name by all the employees of all the respondents - as members of the Australian Tramway Employees' Association - to make the first demand of 19th May 1911 on the respondents, whether the persons so authorized were or were not technically appointed officers of the registered organization; and that the employees of the respondents, as members of the Australian Tramway Employees' Association, ratified and confirmed in the most complete way possible the action of the officers purporting to act for the registered claimant organization, especially in persisting in the demands on their behalf, in submitting the plaint to the Court, and in persisting with the demands in the plaint before the Court.

Whether the ratification and confirmation by the members were in strict accordance with the rules or not, it is clear that, even if the persons purporting to act as agents of the organization were not legally authorized to lodge the plaint in the first instance, the registered Association adopted the plaint after it was lodged, and appeared in Court in support of the plaint, and of all the claims made in it. The respondents did not concede the demand made, or any part of it, and refused to confer about a settlement, but the majority of the respondents, including the Adelaide Tramway Trust, one of the applicants for the rule nisi, met in June 1911 and decided to fight the claims. Even if that demand of May was not technically and legally authorized under the rules of the organization, the solicitors for the registered organization made the second demand on the employers on 11th September (before they lodged the plaint for the registered organization - on 26th October 1911), and the plaint rests on that demand, not on the first demand in May. The second demand was made for claims, set out in the plaint later on, and for a settlement, or conference if no settlement was arrived at, but none of the respondents conceded the claims, or any of them, or agreed to submit them to a conference for settlement.

The Commonwealth Conciliation and Arbitration Act recognizes collective bargaining by organizations of employers and employees, and by registered federal organizations conducted by officers.

The two applicants, the Brisbane Tramway Company Limited and the Adelaide Tramway Trust, positively declined to recognize the officers of any federal organization - the only persons capable of bargaining for all its members - by refusing to see any officer, or to answer any letter from any officer of any federal organization. They insisted on seeing only their own employees about matters affecting their wages or conditions. The secretary and president could not be employees of every respondent in every State. For this reason all demands made by or on behalf of the federal registered organization were unanswered, and the applicant respondents now contend that there was not any dispute, as no claim which they would recognize had been made on them.

The registered organization applied to the President in September 1911 to call a compulsory conference of the officers of the registered organization and the respondents, to see if the demands could be settled by such a conference. The learned President caused letters to be sent to all the respondents in September 1911 asking whether a conference would be likely to settle the actual or threatened industrial dispute, but all the respondents (except one West Australian company) replied informing the President that a conference would be useless - the claims would not be conceded or settled; and yet there was not any dispute - so it is held. The registered organization after the two demands, one in May and another in September 1911, and after three attempts to obtain conferences, caused the plaint to be filed on 26th October 1911. The solicitors for the registered organization who made the demand in September lodged the plaint on behalf of the registered organization. All the respondents filed answers to the plaint, recognizing the registered organizations as the body who made the demands, and after disputing jurisdiction, disputed (using the word "dispute") every claim made in it as unreasonable and excessive.

After the hearing had proceeded for some time eight of the ten respondents in dispute decided to settle the dispute, and did settle it with the registered organization. Only two of the ten respondents had actually settled the dispute before the award was made by the President; so that eight of the respondents in four States at that time had not settled the dispute. Six of the eight respondents subsequently to the award being made, namely, between 1st January and 12th August 1912, did settle the dispute by agreements so far as they were concerned. The other two - the present applicants - applied for the orders nisi for prohibition now under consideration.

The evidence that there was a dispute at the time the plaint was filed, with the two respondents who did not settle (the Brisbane Tramway Company Limited and the Adelaide Tramway Trust), is undoubtedly very much stronger than the evidence as to a dispute with those who did settle. It is, however, contended that there was no dispute even with the eight respondents who settled; that they only imagined there was a dispute, and that it was with the registered organization, when, in reality, there was not any dispute at all; and that if there was any dispute, it was not (because of a host of technicalities) with the registered organization, but with some supposed association which had never filed any plaint. The imaginary disputes were settled by formal written agreements made with business men, directors of companies or trusts, carrying on important tramway services (cable or electricity) in Melbourne, Hobart, Perth, Fremantle, Ballarat and Bendigo. These business men, in my opinion, knew whether they had a dispute or not, and with whom their dispute was, and what the dispute was about. In each of these written agreements (a separate one for each respondent Company) the parties are the respective respondents and the claimant registered organization (as "The Australian Tramway Employees' Association," registered under the "Commonwealth Conciliation and Arbitration Act 1904-1911"), and the matters dealt with are referred to as set out in the Association's plaint (No. 16 of 1911), which it is now decided was never filed by or for the registered organization. In some of the agreements referred to I find the following recital: - "And whereas the parties hereto have met in conference and have with the assistance of the President of the Court agreed to a settlement of the matters in dispute as hereinafter appears" &c. The agreements produced under which the disputes were settled were formally presented to the President of the Court by the representatives for both parties for his certificate under sec. 24 of the Commonwealth Conciliation and Arbitration Act 1904-1911. Agreements under that section are only valid as awards if they are agreements made in settlement of inter-State industrial disputes, and as the majority of the Court finds there was not any dispute at all, the agreements are, I presume, waste paper.

It was contended that there was not any industrial inter-State dispute between the registered organization and the ten respondents, or any of them, notwithstanding the two demands, the persistence in the demands and in refusals before and after the plaint, three attempts to obtain conferences to settle the dispute, and the settlements by eight out of the ten respondents. It appears to me only necessary to refer especially to the two applicants for the rule nisi, because I cannot bring myself to find that there was not any inter-State industrial dispute with the other eight respondents, when they admit there was, when they signed agreements settling the dispute and asked the Court for a certificate which only gives to those agreements the effect of an award if there was an inter-State dispute. As to the other two respondents, no formal demand was made by the officers of the Association for the wages and conditions the members required before the demand of May 1911, for the following reasons: - Prior to the registration of the Association the employees of the Brisbane Tramway Company Limited were debarred by discrimination from joining any federal association and from joining any State union not consisting solely of the employees of the Company. In May 1910 the Brisbane employees did not, for that reason, send any representatives to a general conference of tram employees called in Sydney in May 1910. Discrimination against employees joining unions outside the Company's employees was clearly proved. Prior to registration of the Association, the employees of the Adelaide Tramway Trust were also debarred from submitting any requests through any officers of any federal or State association or union if such officers were not employees of the Adelaide Trust. Subsequently to the registration of the Association both these respondents continued the same practice, and any requests for recognition or demands made on behalf of the employees by the officers of the federal organization formed under the authority of federal legislation were ignored. The President in his judgment in this case, referring to the demands of the organization, said[50]: - "A collective demand from a strong and broad union is often the only mode of relief that is open. The agents of such a union do not, in my experience, spread discontent; they generally spread hopes of getting relief from existing grievances, by arbitration instead of strike. If, however, the crude doctrine should ever be established that there can be no dispute for the purposes of the Arbitration Court, unless the men" (personally) "either worry the employer, or resort to a strike, it is easy to see what will happen." Some of the witnesses truly said in this case: - "If two of our fellow employees voiced all our complaints the employers would look upon them as dissatisfied men and agitators, and would soon make some excuse to get rid of them. Outsiders are the only persons who can properly bargain for us with our employers." This refusal to recognize the federal law and to consider any requests made by a registered organization was in a way relied upon by the applicant respondents as a proof that there was not any dispute - on the ground that claims were not made by the only persons recognized by the employers, namely, employees of the local Company or Trust, and therefore there could not be a dispute. As the Company would not receive communications from, or confer with the officers appointed by the federal organization, formal demands by registered letter were therefore necessary before plaint. One was made by the officers, and one by the solicitors of the registered organization. The employees did ask for minor matters such as special concessions on Christmas Day, alterations of time tables, &c., after the plaint, and that was used, not quite fairly I think, to show that the employees asked for what they really wanted, and that the log demanded was not a demand they intended to persist in.

It was then contended that even if there was a dispute with any of the respondent companies it was not with the registered organization: (1) because some of the rules they acted on were not technically passed by the organization; (2) because the employees outside Victoria, although they thought they joined the registered Association, did not do so in fact, and were not members of the registered organization, but members of some supposed association - some fairy association no one could locate. This supposed association, apparently, acted on rules passed by the registered Association before it was registered, and not by the fairy association. It was admitted that the "supposed" or "fairy" association was never registered, that there was only one registered association in the Commonwealth for tramway employees, and that association was called the Australian Tramway Employees' Association, and that if the members joined a registered association at all they were members of the claimant Association.

As to No. 1 objection - that is based on the fact that the registered Association did not, after its registration, formally repass rule 28 which it had passed as an association before it was registered, and which rule it had lodged with the Registrar before registration. Days were spent in showing how fatal this technical objection was to all the proceedings before the Arbitration Court. The facts are that the Association before registration passed rules in accordance with the Commonwealth Conciliation and Arbitration Act, and lodged them with its application for registration. Sixteen days after, and before registration, the same Association passed rule 28 and lodged that as one of the registered rules with the Registrar. The Registrar, rightly or wrongly, decided that he could only register the Association as one with the rules lodged at the same time as the application for registration, but he registered the Association after rule 28 had been passed and lodged, and his attention had been drawn to it. At the suggestion of the Registrar the additional rules (referred to as rule 28) passed before the registration, and lodged with him, were retained by him as amendments of the rules of the registered organization, and placed with the rules lodged with the application for registration. The registered Association acted on rule 28 afterwards as one of the rules of the registered Association. Rule 28 only added other provisions for carrying into effect the objects set out in the rules lodged with the application.

This Court by a majority, of which I formed one, held that rule 28 did not legally become one of the rules of the registered Association as a corporate body, but I have referred to it for three reasons: (1) because I think rule 28 only added other provisions for carrying into effect the objects set out in the rules lodged with the application, and was not therefore inconsistent with those rules; (2) because rule 28 was in fact passed by the members of the registered Association before registration, and was acted upon by the registered Association only - (if it did not legally become a rule of that Association, it never became a rule of any other Association); (3) because, I think, even if rule 28 was inconsistent with the registered rules, it does not affect the question - for if a registered Association does act on rules inconsistent with the registered rules, it does not render the Association void or the acts done illegal. The Act specially provides that if a registered association acts contrary to its rules the Arbitration Court shall on application cancel the registration - that is, the registration is voidable, but not void.

In this very case an application was made to the Arbitration Court to cancel the registration of this registered Association, and although the Court stated that there appeared to be a jumble of rules (and rule 28 was specially referred to), it held that the registered Association had not acted contrary to its rules - and the application for cancellation was refused. (See In re Australian Tramway Employees' Association; Ex parte Ryan[51]). No attempt was made to interfere with that decision.

The Arbitration Court also held that the officers of the registered Association, Messrs. Prendergast and Warton, were properly appointed[52]. The President said: - "The president and secretary are, in my opinion, employees within the meaning of the Act, and have been validly appointed." No attempt was made to interfere with that decision. On Warton's oral evidence before this Court (uncontradicted) supported by exhibits verified by him, in addition to the evidence before the President, I hold A. C. Warton was general secretary of the registered organization from 11th February 1911.

As to the objection that the employees outside Victoria were not members of the registered Association, and the Victorian members were the only members, and that the dispute, if any, therefore, was not with the registered Association, I cannot understand how such a contention can be accepted. Take the eight respondents in three of the States who settled the dispute with the registered Association. They recognized their employees as members of the registered organization. The employees as members of the organization adopted the settlement effected for them by the officers of the registered Association. The members in Victoria registered rules differing from the rules of the registered organization as rules of the Victorian branch of the registered Association. The Court held[53]: - "The Victorian branch was not a registered Association. ... The Victorian rules are not applicable to the registered organization." And yet it is now contended that the registered Association consisted of Victorian members only. The Victorian members evidently did not think so, nor did the learned President of the Court in the judgment referred to.

All the evidence given by the members themselves shows that the members of each branch acted as if that branch was a branch of the registered Association. They intended to become members of the registered Association, and of that Association only, after 22nd November 1910. They all personally signed applications to become members of that Association. The general secretary for the time being, before the award, formally accepted their applications in writing. In the meantime they paid entrance fees to the branch secretary and paid capitation fees to the registered Association as members of that Association. They sent representatives to conferences of members of the registered Association. They personally authorized the registered Association to make demands on the employers on their behalf, and to file a plaint asking only for better wages and better conditions for members of the registered Association. Their representatives were recognized by the registered Association. The employees gave evidence as members of the registered Association in support of the plaint filed on their behalf by the solicitors of the registered Association. They persisted as members of the registered Association in demands made on their behalf from May 1911 up to the present date, to be conceded only to members of the registered Association; and yet it is now contended they did all that for an association they were never members of, and therefore they cannot get the benefit of the award obtained.

These members are told that they were under a delusion - that they did not really join the registered Association, "but some fairy association, because the registered Association did not legally pass rule 28 after registration, and it was not therefore a rule of the registered Association as a corporate body." To my mind it is clear that they joined the registered Association simply because it was a registered association, and they did not at the time see, or ask to see, the rules of that Association, or care what the rules were. The rules passed on 6th November, recognized as legal rules of the registered Association, as a matter of fact provided for branches and for members in all States to join the registered Association. The evidence shows that the members of the branches did not know what the rules were for some months after they joined. They pressed for copies of the rules for the first time after they became members.

As to the employees of the two applicants for the rule nisi, all that I have just mentioned applied to them also; but, in addition, we have the evidence, uncontradicted, that so long as the Tramway Association was not a registered one the employees of the Brisbane Tramway Company Limited dare not join it, because of the discrimination exercised by the Company against those who joined any union but a union of the Company's employees. When the conference before registration was called in Sydney, the Brisbane employees did not send any representative. When they were assured that the Association was registered as a federal organization, and that they were protected from discrimination by the provisions of the Commonwealth Conciliation and Arbitration Act because of registration, over 400 members joined within a few days, without seeing any of the rules, and joined the registered Association solely because it was registered. They personally signed applications to join the registered Association by its registered name; they were accepted by the then secretary, Mr. Duke, in accordance with the rules of 6th November 1910; and yet they are now told they only imagined that they were members of the registered Association. The 65 Brisbane members who opposed the registration of the Association (at the expense of the Brisbane Tramway Company Limited) opposed the registration because they were members of the Association now registered, not as outsiders. If the 65 were members of the registered organization, so were the other 440 members.

As to the employees of the Adelaide Tramway Trust - in addition to the acts done by the members of the nine branches to which I have referred, they joined the registered Association at a public meeting held in Adelaide, and they passed a resolution declaring themselves to be a branch of the Australian Tramway Employees' Association (the only registered Association of that name), and they also applied later on individually in writing to join the Australian Tramway Employees' Association; they were accepted as members; they paid entrance fees to the branch and capitation fees to the registered Association, and in numerous other ways acted in a way consistent only with the fact that they were members, and accepted members, of the registered Association.

It was contended that the minute submitted of 30th November 1910 showing that the South Australian employees joined the registered Association as a branch was tampered with, and that such a resolution had never been passed in the form it was submitted. Prendergast, an informer, said that it was not passed in the form submitted, and that it had been added to, but he, admittedly, was not present at the meeting when the resolution was alleged to have been passed. To prove the genuineness of the minute the mover and seconder swore to it as a resolution passed at the meeting of 30th November 1910. The president (a member of Parliament), other members of the Association present at the meeting, and the secretary, who was present and wrote out the minute, swore that it was passed on the day the minute recorded it as passed. A great deal of time was spent over this minute, and I think unnecessarily, because I find in minutes (which were admitted to be genuine) between that date and the date of the plaint in this case, several direct references to the fact that the South Australian members formed a branch of the registered Association "The Australian Tramway Employees' Association." One minute particularly, on 12th July 1911, shows that the subordinate position they occupied as a branch was recognized. In it the following appears: - "Mr. W. S. Holmes asked: Has this branch power to accept Mr. Irvine's resignation, he being a federal officer? The secretary explained that this branch could receive the resignation and forward it to the federal Executive with a recommendation that it be accepted." All the minutes show the South Australian members recognized themselves as a branch of the Association which was registered, and which was engaged on their behalf in pressing the claims and preparing the plaint. There was no need to invent or tamper with the minute of 30th November 1910 (in February 1912), when so many other minutes in 1910 and 1911 proved that the South Australian members joined the registered Association as a branch.

Then hours were spent in showing that the South Australian employees, because they signed the pink forms formerly used by the South Australian Association before it joined as a branch, could not have intended to join the Australian Tramway Employees' Association as the word "South" before Australian had not been crossed out of some of the forms when they signed. This objection was rendered useless when Mr. Arthur produced 400 white forms signed by the employees applying to join the Australian Tramway Employees' Association, including the majority of those members who had also signed the pink forms.

One other reference to the objection that the employees were not members of the registered Association. Parliament, in an attempt to avoid technical objections, and to save the time of the Arbitration Court in deciding upon membership, has cast upon the Registrar the duty of satisfying himself (and the Arbitration Court) who are members of the registered Association. (See sec. 21A of the Commonwealth Conciliation and Arbitration Act.) He certified under that section to the fact that all the members who now claim to be members of the registered Association were on 16th October 1911 members of the registered Association. Parliament has declared that that certificate is to be conclusive evidence of membership. The certificate referred to was obtained and tendered in evidence. The Registrar, who gave the certificate, knew the circumstances under which rule 28 was passed. Not a particle of evidence was given to show that any members resigned between 16th October 1911 and the date the plaint was filed - 26th October 1911. The Act further declares that no member can legally be removed or withdraw from his membership while proceedings are pending. The employees of the two applicants are included in the certificate, and were therefore members of the registered organization on 16th October 1911, and have not since resigned (with the exception of 65 of the employees of the Brisbane Tramway Company, but they also continued to be members because the Act prevented members legally withdrawing during proceedings).

That being so, as no resignations were tendered and accepted between 16th and 28th October 1911 the employees of the respondents are still members of the registered organization. On the evidence without the certificate I hold they were members of the registered Association; and, under the Act, I feel bound to accept the certificate of the Registrar as to membership if I had any doubt about it otherwise.

Was there a dispute? All the necessary elements of a dispute previously referred to by me have, in my opinion, been proved under the circumstances mentioned, namely: (1) dissatisfaction of employees with wages and conditions known to the employers; (2) a real common demand on the employers allowing a reasonable time for settlement and conference; (3) refusal or neglect to grant wages or conditions claimed or to confer; (4) persistence in the demand and refusal.

It was contended that there was no real dissatisfaction, and that if there was dissatisfaction it was not known or expressed to the employers. If the ex parte statements of Mr. Goodman (Adelaide) and Mr. Stephens (Brisbane) on the application for a rule nisi, referred to by the learned Chief Justice, disclosed the real state of affairs between employers and employees, and the employers had not refused to treat with the organization or its officers, I would agree that there was not dissatisfaction known to the Brisbane respondent at the date of the plaint; but in my opinion it was proved to be incorrect, both by evidence given on behalf of the applicants and on behalf of the respondents. The cablegrams and letters from Mr. Stephens to Mr. Badger, the manager, then in the United States, and his replies, and those referred to by my brother Isaacs, show that he (Mr. Stephens) knew that the Company's employees, because of dissatisfaction with their conditions, proposed to join this federal Association to assist in enforcing their claims. The 56 witnesses of the claimant organization, without any exception, swore to dissatisfaction with wages and conditions before plaint, and I do not find any evidence to make me disbelieve all those witnesses for the claimants. Mr. O'Halloran, counsel for the Adelaide Trust, said that if the award was upheld it would mean an increased expenditure to the Trust of £20,000 per annum. Accepting counsel's statement as correct, the fact that they were receiving £20,000 per annum less than a Justice of this High Court, as President, found that they ought to be paid in Adelaide was surely sufficient to justify dissatisfaction so far as the Adelaide employees are concerned. The Brisbane Company also informed the President that the claims, if conceded, would greatly add to the cost of the working of the Company's tramways. The evidence, I hold, shows that there was reason for dissatisfaction, that there was dissatisfaction, and that the dissatisfaction was known to the employers before the plaint was filed. The dissatisfaction was not expressed to the Brisbane and Adelaide respondents by the organization before the formal demand in May, because those respondents would neither see nor correspond with the federal representatives of their employees; but it was expressed to the respondents by the officers of the organization in May, and by the solicitors for the organization in September, and for the organization in October 1911 through the president, who asked about a conference to settle the dispute before the plaint was filed.

The real common demands in May and September 1911 allowing reasonable time for settlement have been fully referred to, also the three requests for conferences to settle the dispute. The refusals to grant conditions or to confer have also been dealt with, including the decision of several of the respondents in June 1911 to fight the claims.

Was there an intention to persist in the demand and in the refusals? The evidence of every witness for the claimant organization is definite on that point. They intended to persist in the claims, and did so, complaining only of the delay, or pressing the demands by the organization. In the case of the employees of the two applicant respondents, uncontradicted evidence was given that the president of the registered Association was urgently called to Adelaide and to Brisbane to prevent the members striking without waiting for the proceeding. What they intended to strike about at the time is in dispute, but, whatever it was, they intended to persist in it, because of dissatisfaction, to the extent of striking. The intention of the respondents to persist in the refusal to grant the claims is beyond question, and was never denied. It has been said that the members never intended to press for the log of prices and conditions which they demanded. All the witnesses say they did intend to do so; and with eight out of the ten respondents they succeeded in obtaining by their persistence the log of prices and conditions. In each agreement of settlement quite as many items of the log were granted by the eight respondents as the learned President granted in the award against the other two. am not justified in believing against this evidence and the oaths of all the other witnesses for the claimant organization, that the Brisbane and Adelaide members did not intend to persist in the log also. They intended to persist in the demand, and did so to the fullest extent possible (except by an illegal strike in Adelaide) from the date of the first demand up to the present date. I fail to see why an intention to persist in a claim in the only way now authorized by law cannot be accepted as proving a dispute, just as much as a strike proved it before strikes were declared to be illegal and punishable by fine.

If persistence in a claim made with the intention to persist in it before the plaint - and before a Court if necessary - instead of persisting in it by a strike, is not sufficient to prove a dispute under the Act or under the Constitution, it is difficult to conceive how disputes are in future to be proved.

I hold there was an inter-State dispute for a common demand in all the five States, which the members of the registered organization intended to persist in, and did persist in, on their own behalf, with the exception of a few items applicable in one State only. These local claims did not form part of an inter-State dispute, but they did not prevent the general claim being dealt with by the Arbitration Court. See Whybrow's Case[54], to which I refer more fully later on.

Before dealing with the other points to be considered in this particular case I think it my duty, as Deputy President of the Court, to emphasize what has already been said by my learned brother Isaacs with reference to an amendment of the Arbitration Act, and, in the absence of the President of the Court, to refer to what he has already said about the necessity for some action to be taken, and to the means he suggested to remedy the difficulties the Arbitration Court has to contend with. The decision of the Court in this case must be loyally followed, and that fact makes it all the more necessary to refer to the matter. In considering this question it must be remembered and recognized that the Arbitration Act was passed to provide a tribunal for the workers to resort to, instead of striking to enforce demands; and if the intention to persist in a demand, and the persistence in a demand for improved wages and conditions later on, before the Arbitration Court - such as there was in this case - does not prove a dispute within the meaning of the Constititution, surely it is a matter for consideration by Parliament whether the penalties imposed on those who resort to a strike, instead of to the Court, ought not to be abolished, or, in the alternative, that the amendments of the Act suggested by my brother Isaacs, and also by the President in his judgment in this case and in other cases to which I intend to refer, should be considered by Parliament.

Take this case as an example of what may happen in any case before the Arbitration Court as the law now stands. Because the members generally did not strike, or do something more to enforce their claims - but only persisted in their claim for increased wages and better conditions before the plaint and before the Arbitration Court, and waited for an award - they are held not to be in dispute and cannot hold their award, and those members in Brisbane who persisted in their claims before the Court, and at the Court, and did strike to enforce part of their claim, are also to lose the benefit of the award because they did strike and would not wait for the award. Putting it another way: Those who have persisted in the demands before the plaint, and since then before the Arbitration Court at every stage for nearly three years, to the extent of spending hundreds (if not thousands) of pounds, are assured now by this Court that they really did not intend to persist in their demands sufficiently to prove a dispute; and those who did strike to get part of their demand, and persisted in the rest of their demand before the plaint and before the Court, are told that they thereby ended their employment and deprived themselves of any right to an award.

The two complaints against the Arbitration Court are (1) the delay in obtaining an award, and (2) the difficulty of retaining it when obtained. The first at least is justified. At the rate the work has proceeded in the past, with one President and two Deputies sometimes assisting, the plaints and other applications already filed (one in 1912), without any new work, will - unless the war makes a difference - probably take the Arbitration Court more than a year, with one Judge, to dispose of, although the merits alone could be dealt with in less than half the time. The present case, for instance, was dealt with by the Arbitration Court finally on 21st December 1912. The employees have waited to get the benefit of the award ever since. It is now being finally dealt with, more than one year and nine months after the award was made by the Arbitration Court. Almost every plaint that comes before the Court is greatly delayed by the defence that is raised that there is no inter-State dispute, or no industrial dispute; and as the Arbitration Court cannot decide that question at present, the evidence must be taken at great length to see if the Court is justified in proceeding, and to satisfy this Court also later on that there was a dispute extending beyond the limits of one State. An unsuccessful respondent also knows that, even if he does not succeed on prohibition, he prevents the employees from getting the benefit of the award until it is finally dealt with by this Court; and delay is thereby encouraged.

The President has made many attempts to get some opinion from the High Court as to what are the necessary indicia of a dispute, and as to whether facts submitted to the Court in particular cases constituted a dispute, so as to prevent lengthy inquiry as to the merits if the facts before the Arbitration Court did not, in the opinion of this Court, prove a dispute.

The applications have not been successful, as the High Court holds that it is a question of fact, and not a question of law, whether there is or is not a dispute. Later on, when the same facts are submitted on a motion for prohibition, and then only, the High Court can decide whether there was or was not a dispute in fact. I have had the same experience as the learned President. In the Felt Hatters' Case[55] the proceedings were delayed for some months because I thought it necessary, before proceeding to hear the merits, to submit to the Court the question whether there was a dispute on all the facts the claimant organization submitted or intended to submit to prove a dispute. The High Court declined to answer the question on the ground that it was not a question of law, but one of fact, and decided by a majority that I was justified in proceeding to ascertain as a fact whether there was an inter-State dispute, and proceeding to investigate the merits. I am not complaining of the decisions of this Court. I personally was an assenting member of the Court which gave some of the decisions. The decisions I accept as correct under sec. 31 of the Arbitration Act, which only allows the President to submit questions of law arising in the proceedings to the High Court. I am only pointing out that the work of the Arbitration Court is further delayed by the Act as it at present stands.

After the decision in this case, in addition to the evidence to be heard on the question of a dispute, much of the time of the Court must also be taken up in future with lengthy and complicated evidence and legal arguments as to proper registration of organizations - evidence that rules were legally passed by real members and at the proper time - evidence of membership of the organization, and proof that the members legally joined the corporate body as well as the Association - evidence as to legal compliance with the Act and Rules of Court, and proof of strict compliance with the rules of the Association.

In Keates v. Lewis Merthyr Consolidated Collieries Ltd.[56] Lord Atkinson in delivering judgment said: - "It is obvious that this peculiar quasi-parental jurisdiction was conferred in the interest of industrial peace, and should not be hampered by rules of pleading." It must also be remembered that all these legal technicalities have to be dealt with by an Arbitration Court in which either party to the proceedings has the right - which is generally exercised - to prevent counsel or solicitor or any paid agent from appearing for either party. The danger of preventing the Court from doing useful work because of the difficulty in obtaining an award, and maintaining it when obtained, was pointed out by the President in giving a judgment in August 1911, and again in this case. In his absence I propose to quote what he then said. In giving judgment on 5th August 1911 in the case of the Australian Boot Trade Employees' Federation v. Whybrow & Co.[57] the learned President said: - "I have given merely one instance out of many that could be adduced to show the increasing difficulties of this Court. At present, the approach to the Court is through a veritable Serbonian bog of technicalities; and the bog is extending. After full consideration, I must state it as my opinion that these decisions as to the limits of the Court's power, with all the corollaries which they involve, will make it impracticable to frame awards that will work - will entail, indeed, a gradual paralysis of the functions of the Court. Yet this Court, if it be trusted - and unless it can be trusted it ought not to exist - shows magnificent promise of usefulness to the public. It is in a position to solve problems which cannot be solved, to settle disputes which cannot be settled, by any tribunal except one that has authority in all parts of Australia. In this very case, in my reasons for award, I showed that in industries as to which there is inter-State competition the State Wages Boards confessedly cannot do justice. It would not be well to go into further detail on this subject, for obvious reasons. But I am clearly entitled - I am even in duty bound - to make known the obstacles and dangers which confront the Court, and before it is too late."

Later on in the judgment in this tramway case on 21st December 1912 the President said[58]: - "The position of the question - Does a dispute exist? - is most unsatisfactory. The Act assumes that the existence of a dispute is the most obvious thing in the world; and, according to the High Court, Parliament has not given me any jurisdiction to decide the question. I understand that my finding on the question is not even to be treated as primâ facie right; and yet, when the question comes before the High Court, the High Court takes no evidence on the subject. As actually happened in the Merchant Service Guild Case115 C.L.R., 586., I may spend days and weeks in going into the merits of claims; and, after I have made an award, some dissatisfied party makes an application for prohibition; and the whole proceedings become a nullity, because the High Court cannot find, in the transcript, any sufficient evidence of what it understands by the word dispute. My time and energies, which belong to the public, are wasted; and the irritated employees are put under a temptation to strike work. There are two courses which occur to me that Parliament could adopt to put an end to this position. One is to commit the question of the existence of a dispute to the High Court, and to forbid this Court to arbitrate until the High Court certifies that there is a dispute. The other is - if Parliament think that this Court, having the opportunity of meeting the employers and employees face to face, and of seeing the conditions of labour, should be able to form a better judgment - to commit to this Court jurisdiction to ascertain whether there is a dispute or not. Something must be done to improve the present anomalous position; but it is for Parliament to say what ought to be done." I entirely agree with the second suggestion.

The power to prohibit the Arbitration Court from proceeding when this Court holds that there was no dispute, and therefore that the Arbitration Court had no jurisdiction, is contained in sec. 75 (V.) of the Constitution. If employees are to continue to resort to the Court instead of to strikes, the bog of technicalities which has extended since 1911 must, I think, be cleared out of the way, and a safe and easy method provided of submitting disputes to the Court with some chance of retaining awards when obtained. Some idea of the extent of the technicalities submitted for consideration in this case may be formed from the fact that the greater part of the time of this Court was occupied in arguing them. The argument before this Court lasted 23 sitting days, and out of that time I estimate 17 days were occupied in arguing technicalities in order to obtain an order for prohibition on technical grounds, even if there was an inter-State industrial dispute. I do not see how the work of the Arbitration Court can be continued on present lines, after the decision in this case, until the Act is amended; and I have felt it my duty, therefore, as Deputy President of the Court, to point out the position at some length.

Other reasons were given why the award should be set aside, even if there was a dispute.

It has been said that the dispute was only manufactured - not real. The dispute between Austria and Servia, it is generally believed, was also manufactured; but the dispute became a real one after demand and refusal. Whatever the intentions of the first promoters were when the Association was first suggested, it developed into a real federal organization, with branches in five States determined on behalf of the employees to make demands on the employers and to persist in them.

Prendergast as original promoter may have started the movement in Melbourne (as he said he did when he became an informer) to secure a good billet as organizer; but the organization later on found it necessary, in order to carry out the objects it had in view, to dispense with the services of its promoter. It did not want a president who thought only of a billet, and not of properly pressing for the claims the members insisted upon. The demand made before plaint was a real demand, and there was a real dispute with a registered federal organization long before the plaint was filed.

It was contended that, although the log contained some items the members intended to persist in, the demand was for a log of prices and conditions the major part of which they did not intend to press for, and therefore the demand as a whole was not one they intended to persist in, and the Court had no jurisdiction. This question has practically been decided by this Court in Whybrow's Case[60]. The learned President in that case held that, out of 23 claims made in the log and in the plaint, he could only make an award as to two claims because some of the claims were not in respect of matters in dispute, and as to other claims the Court had no jurisdiction. The High Court held that under the circumstances the learned President was right in making an award with respect to the only two matters (in the log) in dispute[61]. The learned Chief Justice[62], referring to the contention that the demand, taken altogether, did not represent the real dispute (if any) at all, and therefore the jurisdiction failed, said: - "I am unable to accept this contention. If a separable part of the demand represented a real dispute then existing, I do not think that the addition of other demands affected that fact." The learned President was therefore justified in eliminating matters not really in dispute in the plaint[63] and confining the award to matters which he held were really in dispute between the parties.

I do not think the objection raised that there were two awards is fatal. There was one award and one judgment. In the award the claims allowed against the Brisbane Tramway Company Limited were first set out, and then the claims allowed against the Adelaide Tramway Trust, but the main claims allowed in both were exactly the same - some in the same words, and others to the same effect. Items affecting one respondent only were also included. As to these items not included as part of a common claim required by all members, the award would not be valid - that is, where the claim made was only against a respondent or respondents in one State.

It was contended that no award could legally be made against the Brisbane Tramway Company Limited as to preference to unionists, because there was only a dispute as to this matter between the organization and the Brisbane Tramway Company Limited, if there was any dispute at all, although claimed against all the respondents in the log. The claim was, however, persisted in against all the respondents, and undertakings were given by most of the respondents not to discriminate against unionists when they settled the dispute by the agreements. The dispute as to this claim was still in existence in South Australia, in Queensland and in Victoria at the date of the award. On the whole of the evidence, in the President's opinion the organization was not entitled to an award as to preference to unionists against the Adelaide Tramway Trust. The dispute as to preference to unionists was not settled in Victoria until August 1912 (eight months after the award), and it was then settled by an agreement between the organization and the Melbourne Tramway & Omnibus Co. There was therefore clearly an inter-State dispute, and not a Brisbane dispute only, at the date of the award, so that a legal award as to that claim could be made.

Some of the employees (about 440) of the Brisbane Tramway Company Limited (members of the organization) foolishly insisted on wearing a union badge, and thus enforcing the demand as to part of the claim, after the plaint was filed. The employers refused to allow the men to continue to work while wearing a badge, and it was contended that that was a determination of the employment which deprived the members of any right to an award. This Court has already held that the question whether the cessation of work ends the employment so as to prevent a dispute continuing must be decided on the facts in each case (see Colliery Employees Federation v. Brown[64]; Merchant Service Guild Case[65], and Broken Hill Case[66]). In this case the dispute was with the organization, and the dispute continued although some of the members were not allowed to work under the circumstances mentioned. The uncontradicted evidence of the men shows clearly that they were prepared to go back to work, and wished to go back, as soon as the dispute was settled. Mr. Mitchell admitted that if men had not been obtained to take their places the dispute, if any, might have continued, and that the dispute, if there was one, would have continued if they had gone on working. The question whether there is or is not a dispute continuing does not depend on whether the members are or are not working. It is sufficient if at the time the dispute started the men were employees of the respondents and were members of the organization with which the respondents are in dispute, and were ready and willing to go to work as soon as the dispute was settled. As the dispute with the organization was not settled and the Court had cognizance of it for settlement prior to the cessation of work, up to the date of the award, it cannot properly be said that the dispute with the organization was at an end before the award was given because some of its members were not allowed to work under the circumstances.

It is held that if an organization does not order a strike, or its members do not individually worry their respective employers, it does not intend to insist on its claims, and there is no dispute; and that if it does order a strike, or any of its members strike, it ends the employment, and all the members lose all right to benefits under the Arbitration Act. That is placing on the word "dispute" a construction I do not see my way to agree with.

The point was again raised that as tramways are local in each State and do not compete with each other a dispute cannot extend beyond the limits of one State. I do not wish to add anything to what I have already said on this point in The Builders' Labourers' Case[67] and Holyman's Case[68], but in this particular case the President said[69]: - "The dispute, so far as the troubles and grievances of the employees are concerned, is substantially one all over the tramway systems, and even on the several subjects of dispute the unanimity is striking."

An objection was raised that the award as to preference to unionists in Queensland was bad because the Industrial Peace Act of 1912 Qd. prevented any such discrimination. I hold the Act does not apply to federal awards in inter-State disputes, but only to associations over which the State has jurisdiction: See decision of this Court in Whybrow's Case[70], where the Court held that in a Victorian Act, No. 2241 (which on the face of it apparently intended to prevent federal awards from having any effect), the words "compelled or compellable" must be construed as meaning "compelled or compellable" by any power over which the Victorian legislature had legislative authority.

The additional evidence submitted to this Court proved that the learned President was misled by the representative of the organization at the hearing. Minutes were put in as genuine minutes made in the ordinary way, when they were, in fact, dictated twelve months after, from memory. Membership cards were put in, altered after they were signed, without informing the Court of the fact. One important minute was written in the minute book while the case was proceeding, between two minutes, and submitted as genuinely entered at the time it was passed (without stating that it was), and in other ways the Court was misled. That was very reprehensible indeed, but the evidence shows that the meetings were actually held, the resolutions were passed, the membership cards were genuine, and the president of the organization (Prendergast), who had the conduct of the proceedings, was the only person who with evil intent misled the Court, and his services were during the proceedings dispensed with by the organization. The Arbitration Court, if all the real facts as now known had been disclosed to it, must therefore have come to the same conclusion as it did on the real questions to be decided in this case.

As to 65 Brisbane members who withdrew from the plaint: This Court has held in Holyman's Case[71] that parties to a dispute may, after plaint failed, settle the dispute without the Court's consent or award, or withdraw from the proceedings. I hold that the members referred to made a claim which they did not intend to persist in, because when it was refused they attempted to resign as members, to withdraw from the plaint and to prevent the claim being pressed. There was not, therefore, any existing dispute. These 65 were the only members who did not insist on their claim, and their action helps to confirm me in the view that all the others made the claims with the intention of persisting in them before the Court proceedings and at the hearing, or by a strike if necessary, and that they did persist in them.

I agree that that part of the award dealing with general references to the Board of Reference of matters not specified, and those by which the Board is constituted as a tribunal to decide matters the President himself had no power to decide, after the dispute was determined, is ultra vires. As to these two matters I agree with my brother Isaacs, prohibition should be granted. As to the rest of the award, I hold that prohibition should be refused.

Two orders nisi for prohibition were argued together, and a number of interesting and difficult points were raised and discussed. These points may arise for determination on another occasion, but we do not think they need be dealt with at present. If no industrial dispute extending beyond the limits of any one State existed in either Queensland or South Australia, both orders should be made absolute. It has been said that the statesmen who designed the Constitution and the Parliament which gave it life wished to settle, not to create, industrial disputes, and that the Commonwealth Parliament, in establishing the Court of Conciliation and Arbitration, did not intend to produce a crop of disputes which would never have existed had there been no such tribunal. Be this as it may, it is now well established that the language of sec. 51 (XXXV.) of the Constitution does permit the creation of a dispute for the special purpose of having it settled by the Court. If the dispute exists, it is nothing to the purpose to inquire how or where it originated, or whether the claims of any of the disputants are reasonable or unreasonable; but the dispute, whether spontaneous or fabricated, must exist, the Court cannot claim jurisdiction merely because the parties on one side or the other would have taken steps for the purpose of producing a dispute had they been aware of the necessity for doing so.

When does such a dispute exist? In The Builders' Labourers' Case[72] we said: - "A dispute extends beyond the limits of any one State when it exists in more than one State, that is to say, extends over an area which embraces territory of more than one State. When persons engaged in industrial disputes, and living some in one State and some in another, join together to insist, and do insist, on the concession of common industrial conditions which are definitely and finally refused by those from whom they are demanded, the words of the sub-section are satisfied. The submission by employees to employers in two or more States of industrial conditions in the shape of a common log, and the refusal by employers to concede those conditions, do not necessarily constitute such a dispute, but they are evidence of its existence. The demand may be the outcome of a settled determination on the part of the employees to have that which they demand by lawful or it may be even by unlawful means; the refusal may be the result of an equally deliberate determination on the part of the employers. If so there is a dispute. On the other hand the demand may merely represent what the employees would like to have though they are not really discontented with existing conditions, or, being discontented, are not disposed to insist on concessions; the employers' refusal may represent a mere unwillingness to give too easily that which, if pressed, they would be ready to consider or concede. In such a case there may be no dispute."

Did such a dispute exist in Queensland or South Australia? This depends on the facts in each case; and the evidence furnished to us is vague, fragmentary and ill-arranged, and some of it is quite untrustworthy. But it is on this evidence not the very different evidence which was before the Court of Conciliation and Arbitration, that we must act. Dealing with this evidence as well as we are able, we have come to the conclusion that the employees in both States believed that the trouble and expense of an appeal to the Court of Conciliation and Arbitration would be amply repaid if they could obtain an award, and that the chances of obtaining an award justified the necessary expenditure of time and money. So believing, they were willing and even anxious that the claim should be submitted to the Court on their behalf in such form as would be likely to secure them the most advantageous terms. They were also willing and even anxious that all conditions should be fulfilled in order to enable the Court to adjudicate on their claim. They and those to whom they entrusted the conduct of the proceeding probably thought that the submission of the log and the refusal by the employers constituted a sufficient dispute to give jurisdiction to the Court, and had they not thought so they no doubt would have taken any further step that was considered necessary to give such jurisdiction, but they were so engrossed in the production of a satisfactory claim and its carriage through the Court that they overlooked the necessity for a substantial dispute, or pretermitted the function of creating one. The service of the log on the employers was no more than a formal step on the road to arbitration, and was not effected with the expectation or even with the desire of obtaining any concession from or conference with the employers, except in so far as they might be obtained as incidents in the arbitration proceedings. The log, as a whole, did not represent the real grievances of any body of employees, what they were determined to get, or even what they thought they were entitled to get as a matter of fair play between themselves and their employers. It was merely the claim which those who had the carriage of the business considered would be likely to obtain the most favourable award from the Court. No doubt it contained some items which employees in all the States considered they were fairly entitled to claim, and many items which the employees in some two or more States thought reasonable, but we do not think that it contained any item about which there could be said to exist in either Queensland or South Australia a "dispute extending beyond the limits of any one State," as described in the words we have already cited from The Builders' Labourers' Case[73]. That being so, the Court of Conciliation and Arbitration had no jurisdiction to make an award in respect to the applicants in either case, and both orders should be made absolute.

Solicitors, for the Brisbane Tramways Co. Ltd., Blake & Riggall, for Thynne & Macartney, Brisbane.

Solicitors, for the Municipal Tramways Trust, Adelaide, T. S. O'Halloran.

Solicitors, for the Australian Tramway Employees' Association, Brennan & Rundle.

Solicitor, for the Commonwealth, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[1] [1914] HCA 32; 18 C.L.R., 224.

[3] [1905] HCA 62; 3 C.L.R., 255.

[4] [1909] HCA 20; 8 C.L.R., 419.

[5] [1910] HCA 8; 10 C.L.R., 266.

[6] [1914] HCA 32; 18 C.L.R., 224.

[7] [1912] HCA 85; 15 C.L.R., 586, at p. 606.

[8] (1908) 2 K.B., 907, at p. 921.

[9] [1912] HCA 86; 15 C.L.R., 576, at p. 583.

[10] [1855] EngR 178; 15 C.B., 743, at p. 755.

[12] [1912] HCA 85; 15 C.L.R., 586, at p. 610.

[13] [1913] HCA 76; 16 C.L.R., 591, at p. 632.

[15] L.R. 7 C.P., 43, at pp. 58-63.

[18] (1906) A.C., 196, at p. 203.

[19] [1914] HCA 36; 18 C.L.R., 273.

[20] [1914] HCA 32; 18 C.L.R., 224.

[22] [1912] HCA 85; 15 C.L.R., 586, at pp. 618 et seqq.

[23] [1914] HCA 32; 18 C.L.R., 224.

[24] [1914] HCA 32; 18 C.L.R., 224.

[27] [1858] EngR 1254; 26 Beav., 306, at p. 312.

[28] 27 L.J. Ex., 301, at p. 304.

[31] (1900) A.C., 366, at pp. 371, 372.

[32] (1900) A.C., 366, at p. 379.

[33] (1900) A.C., 366, at p. 382.

[35] [1914] HCA 36; 18 C.L.R., 273.

[36] [1913] HCA 53; 17 C.L.R., 680.

[40] [1912] HCA 85; 15 C.L.R., 586, at p. 619.

[41] (1909) A.C., 506, at p. 511.

[43] (1914) 2 I.R., 285, at p. 306.

[45] (1909) A.C., 506, at p. 509.

[46] Stephen's History of the Criminal Law, vol. iii, p. 225.

[47] [1909] HCA 43; 8 C.L.R., 465, at pp. 519 et seqq.

[49] [1913] HCA 76; 16 C.L.R., 591, at p. 592.

[54] [1910] HCA 33; 11 C.L.R., 1, at pp. 28, 29.

[55] [1914] HCA 20; 18 C.L.R., 88.

[56] (1911) A.C., 641, at p. 643.

[59] [1912] HCA 85; 15 C.L.R., 586.

[60] [1910] HCA 33; 11 C.L.R., 1.

[61] [1910] HCA 33; 11 C.L.R., 1, at pp. 28, 29.

[62] [1910] HCA 33; 11 C.L.R., 1, at p. 29.

[64] [1905] HCA 62; 3 C.L.R., 255.

[66] [1909] HCA 20; 8 C.L.R., 419.

[67] [1914] HCA 32; 18 C.L.R., 224.

[68] [1914] HCA 36; 18 C.L.R., 273.

[70] [1910] HCA 8; 10 C.L.R., 266, at pp. 288, 300, 310.

[71] [1914] HCA 36; 18 C.L.R., 273.

[72] [1914] HCA 32; 18 C.L.R., 224, at p. 225.

[73] [1914] HCA 32; 18 C.L.R., 224.