R v Commonwealth Court of Conciliation & Arbitration; Federated Clerks Union of Australia

High Court of Australia|1950-07-01|Before: Kitto JJ, Dunphy J

The applicant contends that the document constituting the summons was lodged with the Industrial Registrar and that it may therefore be regarded as an application lodged with the Industrial Registrar. The summons specifies the election in respect of which it is said that the application is made. The applicant made a statutory declaration on 4th August 1949 in which he described himself as "the applicant referred to in an application of even date herewith." There was no application of even date and the summons which is relied upon as an application bore date 5th August. The statutory declaration also contained a statement that the facts set out in an annexure thereto were the grounds referred to in the said application and were true to the best of the knowledge and belief of the deponent. The annexure (as it appears in the transcript placed before this Court) consists of forty-seven typed pages detailing incidents (some possibly significant, some obviously insignificant) occurring in connection with the challenged election from 30th May 1949 to 24th June 1949. It is not possible, except by a process of speculation, to ascertain the grounds upon which the applicant might rely in support of the summons.

Section 96B (1) is in the following terms: - "Where an application under the last preceding section is lodged with the Industrial Registrar, he shall - (a) if he is satisfied - (i) that there are reasonable grounds for an inquiry into the question whether there has been an irregularity in or in connexion with the election, which may have affected or may affect the result of the election; and (ii) that the circumstances of the matter justify an inquiry by the Court under this Division, grant the application and refer the matter to the Court; or (b) if he is not so satisfied, refuse the application and inform the applicant accordingly."

On 30th August 1949 the Industrial Registrar, in a document which recited the holding of the election, and the claim of Grace that irregularities had taken place in or in connection therewith, and stated that he had made an application pursuant to s. 96A of the Act for an inquiry, certified that he (the Industrial Registrar) was satisfied - "(1) That there are reasonable grounds for an inquiry into the question whether there has been an irregularity in or in connection with the election, which may have affected or may affect the result of the election; and (2) That the circumstances of the matter justify an inquiry by the Court."

He therefore granted the application and referred the matter to the court.

It is accordingly contended in these proceedings that there was an application made to the Industrial Registrar for an inquiry and that he duly referred the matter of the application to the court.

Section 96A (1) requires that a person desiring an inquiry into irregularities in connection with an election may lodge an application for an inquiry by the court into the matter. Section 96A (2) requires that the application shall be in writing in accordance with the prescribed form. It is quite plain that what is relied upon as an application in the present case was not in accordance with the prescribed form. This section also requires that the application shall be lodged with the Industrial Registrar. The issue of a summons calling persons before the court to show cause why a particular order should be made may be an application to the court, but it is not an application which is lodged with the Industrial Registrar for the Registrar to deal with as the Act requires. The summons does specify the election in respect of which the alleged application is made. It does not specify the irregularities relied upon or the facts relied upon and there is no statutory declaration declaring that "the facts stated in the application" are to the best of the applicant's knowledge and belief true.

Section 96B (1), which has been quoted, makes it clear that the application to which s. 96A refers is an application which is lodged with the Industrial Registrar and which is to be dealt with by him. It is the Industrial Registrar who is to grant the application or refuse the application. Accordingly a summons requiring persons to appear before the court cannot be regarded as satisfying the requirements of s. 96A. Section 96C provides that upon the reference of a matter to the court under s. 96B "the inquiry shall be deemed to have been instituted in the court." Thus the inquiry for which the Act provides is not an inquiry which is ordered by the court after hearing the parties. It is an inquiry which is instituted upon a reference by the Industrial Registrar made after consideration by him of an application which he has granted. Section 96B (6) provides that "An act or decision of the Industrial Registrar under this section shall not be subject to appeal to the court." An act or decision of the Industrial Registrar under the section includes an act or decision to grant or to refuse an application. This provision puts beyond doubt the fact that an inquiry is instituted, not as the result of an order of the court, but as the result of an unappealable decision of the Industrial Registrar upon an application made to him and not upon an application made to the court.

Section 96D provides that where an inquiry has been instituted a judge shall fix a time and place for conducting the inquiry and that the judge may give necessary directions for the representation of persons at the inquiry. Thus at no time does the court order that an inquiry be made. When the inquiry has been instituted in the manner stated the court then is bound to fix a time and place for conducting the inquiry and may then exercise its power as it thinks proper.

In Grant's Case [1] it was held that the Commonwealth Court of Conciliation and Arbitration had jurisdiction to decide whether the conditions of s. 96A (2) had been satisfied and that the court could, under s. 40 (m) of the Act, correct, amend or waive any error, defect or irregularity, whether in substance or in form. These powers can be exercised when a matter is before the court and may be used to correct an irregularity in an application which in reality is an application. But these powers of the court, extensive as they are, do not enable the court to act upon a reference by the Industrial Registrar which is not authorized by the statute. The whole foundation of proceedings by way of an inquiry into irregularities in an election is an application to the Registrar which is considered and dealt with by the Registrar without appeal and in pursuance of which the Registrar may refer the matter of the application to a court. In the present case there has been no such application. As I have already said, a summons requiring persons to attend before the court is not an application to the Industrial Registrar and this fact is not altered by the circumstance that the Registrar had satisfied himself upon the matters referred to in s. 96B (1). I am therefore of opinion that the reference to the court was made without authority and that the court has no jurisdiction to proceed with the matter upon the basis of the material at present before it, so that the order nisi should be made absolute upon this ground. But the order should not be made absolute against the Industrial Registrar, who is not professing to act and cannot act further in the matter of the alleged application.

In my opinion the order nisi should be made absolute in respect of the court and discharged in respect of the Industrial Registrar.

This application is based on two grounds: - (1) that the amending Act of 1949 did not apply to this election; and, if it did, then (2) that there was no application for an inquiry under that Act and no jurisdiction in the Industrial Registrar or the court.

As to (1): the remedy provided by the amending Act would be inadequate if persons claiming to be officials of registered unions when the Act was assented to were beyond its range. But nothing in the terms of the Act and no principle of construction of statutes warrant such a restricted view. The first ground fails.

As to (2): there was no application under s. 96A (2) of the amending Act. The summons was not substantially in accordance with Form 46 as required by reg. 133a. It was in fact a summons to appear before the court to show cause why an order should not be made by the court. It bore no resemblance to an application in Form 46. There was then no application which the Industrial Registrar could have granted and nothing he could have referred to the court that could constitute proceedings before the court; so the court could not treat the reference by the Industrial Registrar, and could not, and did not treat the summons and supporting documents as proceedings within s. 40 of the principal Act. Nor was there any order by the court. Foundation for the application of ss. 32 and 40 of the principal Act was lacking. The Industrial Registrar and the court were without jurisdiction and their acts without protection. Grant's Case [1] does not apply: Belmore Property Co. (Pty.) Ltd. v. Allen [2] applies. In Grant's Case [1] the applicant was for some reason able to anticipate the form to be prescribed and so fully complied with it. Further the court made an order in pursuance of the reference. The second ground succeeds.

(1950) 81 C.L.R. 27. 2. (1950) 80 C.L.R. 191. 3. (1950) 81 C.L.R. 27.

The order should be made absolute except as against the Industrial Registrar.

Order nisi for prohibition against proceeding further with an inquiry under Division 3 of Part VI. of the Commonwealth Conciliation and Arbitration Act 1904-1949. The Industrial Registrar has purported to refer a matter to the court under s. 96B (1) of the Act. The jurisdiction of the court is denied on two grounds.

The first ground is that the election in question was completed before the coming into operation of the Commonwealth Conciliation and Arbitration Act 1949, which inserted Division 3 of Part VI. in the principal Act, and that Division 3 of Part VI. does not apply to or in respect of elections which were completed before it became law. What constitutes the "completion" of an election may in some cases be a matter of controversy, but in the present case it was common ground that the election was completed before the commencement of the Act of 1949. The question, therefore, is whether Division 3 of Part VI. applies to elections which were completed before it came into operation. The argument for the applicant was that to construe s. 96A as applying to or in respect of elections which had been completed before it became law would be to give to the statute a retrospective effect, that there was a presumption that a statute was not intended to have a retrospective effect, and that there was nothing in Division 3 of Part VI. to indicate affirmatively that this statute was intended to have such an effect.

In Maxwell on the Interpretation of Statutes, 8th ed., (1945) p. 189, it is said that "it is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication." This statement of the rule was approved by Kennedy L.J. in West v. Gwynne [1] . But in the same case Cozens-Hardy M.R. [2] said: " "Retrospective operation" is an inaccurate term. Almost every statute affects rights which would have been in existence but for the statute." And [3] Buckley L.J. (in a passage adopted by Isaacs J. in South Australian Land Mortgage & Agency Coy. Ltd. v. The King [4] said: "Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective." A little later his Lordship said: "There is, so to speak, a presumption that an Act speaks only as to the future. But there is no presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament do, in fact, interfere with existing rights."

(1911) 2 Ch. 1, at p. 15. 2. (1911) 2 Ch., at p. 11. 3. (1911) 2 Ch., at pp. 11-12. 4. (1922) 30 C.L.R., at pp. 546, 547.

True retrospective legislation is rare. A good example is to be found in the Land Tax Assessment Act 1930 (Act No. 1 of 1930) which was passed in consequence of the decision of this Court in Clark Tait & Co. v. Federal Commissioner of Land Tax [5] . The argument against the prosecutors here does not involve giving to the statute a true retrospective operation. The prosecutors, however, really rely on what is, I think, a subsidiary or derivative rule of construction, which was stated by Cockburn C.J. in R. v. Ipswich Union [6] . His Lordship said: "It is a general rule that, where a statute is passed altering the law, unless the language is expressly to the contrary, it is to be taken as intended to apply" (i.e. to apply only) "to a state of facts coming into existence after the Act." It is perhaps only stating the same rule in other words when it is said that a statute is prima facie to be construed as not affecting vested rights.

(1929) 43 C.L.R. 1. 2. (1877) 2 Q.B.D. 269, at p. 270.

Such rules are doubtless of value in a case of real ambiguity. As Wright J. said in Re Athlumney; Ex parte Wilson [1] , "if the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only." But, where the natural meaning of language used is reasonably plain, they can seldom, if ever, afford a reason for departing from that natural meaning. And where, as here, the statute is "remedial" in the sense that it is enacted to provide a means of overcoming what the legislature regards as an evil or an injustice, they can, in my opinion, have no force. In The Ironsides [2] , the statute gave jurisdiction to the High Court of Admiralty in certain cases of breach of contract in which the injured party had formerly no practicable remedy. It was argued that the statute did not apply where the cause of action arose before its commencement. But Dr. Lushington said [3] : "It does not in any degree alter the contract of the ship-owners: it only gives an additional remedy for a breach of the contract: it takes away no vested right, for I think it is a misnomer to call the prior state of things a vested right. I cannot conceive that a power to commit a breach of contract without making compensation, a power to commit injustice with impunity, can be truly denominated a vested right." The present case seems to me to be entirely analogous to that case. Analogous too, I think, is the case of Westbury-on-Severn v. Barrow-in-Furness [4] , where Cleasby B. said: - "In reality the legislation is designed to remove difficulties of proof rather than to introduce a law intrinsically better There is as much reason for applying such legislation to the past as to the future." The statute in the present case is not designed to remove difficulties of proof, but it is designed to give a practicable remedy for an evil, and the same considerations must apply.

(1898) 2 Q.B.D. 547, at p. 552. 2. (1862) Lush. 458 [ 167 E.R. 205]. 3. (1862) Lush., at p. 466 [ 167 E.R., at p. 210]. 4. (1878) 3 Ex. D. 88, at p. 94.

The natural meaning of the language of s. 96A (1) seems to me to comprehend elections which have been completed at its commencement, and I can see no reason for excluding such elections from its scope. There would, indeed, I think, have been a good reason for excluding such elections if sub-s. (2) (b) of s. 96A had been construed as the applicant in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Grant [1] invited this Court to construe it. According to that construction an application under sub-s. (1) must have been made before the completion of an election unless and until a regulation was passed prescribing a time after completion within which it could be made. On this view the section, at the moment of its commencement, could not be applied to an election then completed, and it could hardly be held that its operation in this respect could be altered by the making of a regulation. In Ex parte Grant [1] , however, I expressly rejected this construction, and I do not understand any of my learned brothers to have accepted it. On the construction which I adopted, an application could be made at any time unless and until a limitation of time were imposed by regulation.

(1950) 81 C.L.R. 27. 2. (1950) 81 C.L.R. 27.

In my opinion, s. 96A authorized the making of applications in respect of elections completed at the date of its commencement.

The other ground argued for the prosecutors was based on s. 96A (2) (a) and (c). It was said that the court had no jurisdiction to enter upon an inquiry under Division 3 of Part VI. of the Act except upon a reference by the Registrar, and that the Registrar had no power to "refer" a matter except upon an application which complied with the requirements of s. 96A (2). In the present case, it was said, there had been no application "in writing in accordance with the prescribed form" or "specifying the election in respect of which the application was made or the irregularity which was claimed to have occurred or stating the facts relied on in support of the application." The argument really, I think, was that no application at all had been made to the Registrar under s. 96A (2).

What actually happened was that on 5th August 1949 a summons was filed in the office of the Court of Conciliation and Arbitration in Sydney on behalf of Claude Bernard Grace. The summons was addressed to the New South Wales Branch of the Federated Clerks' Union and to Thomas James Bond, and it required them to show cause why an inquiry should not be held by the court into irregularities in connection with an election in the Branch, the result of which was declared on or about 27th June 1949. It also required those to whom it was addressed to show cause why certain orders should not be made for the avoidance of the election held and the holding of a new election "on the grounds appearing in and by the statutory declaration of Claude Bernard Grace made and sworn the 4th day of August 1949." At the same time or a few days later a statutory declaration by Claude Bernard Grace was filed. It was in the following terms: - "I am the applicant referred to in an application of even date herewith issued out of the Commonwealth Court of Conciliation and Arbitration, New South Wales Registry. The facts set out in the annexure hereto and marked with the letter "A" are the grounds referred to in the said application and are true to the best of my knowledge and belief." A later statutory declaration by Grace, made on 11th August 1949, set forth the names of the elected and defeated candidates and the number of votes cast for each. The "annexure" to the earlier statutory declaration was a document of some forty-five pages in the form of a sort of diary running from 30th May to 24th June 1949. I am not prepared to say that there cannot be collected from odd parts of it allegations of material irregularities, but the great bulk of it is a mass of irrelevancies. The Registrar apparently found allegations of irregularities in it, because on 11th August 1949 he signed an instrument referring the matter to the court and issued a summons returnable on 7th December before Dunphy J. Whether this summons was the same as that which had been filed on 5th August does not appear. It was served on the union and on Bond, and on 7th December I gather that the parties appeared before Dunphy J., who indicated that he would not require the respondents to the summons to proceed until particulars of the irregularities alleged had been delivered to them. Particulars were delivered on or about 20th December, and on 11th May 1950 the Registrar notified the parties that the matter would be listed for hearing by Dunphy J. on 30th May. On 26th May the prosecutors obtained from Williams J. the order nisi for prohibition which is now under consideration.

It seems evident that the Registrar (possibly at the request of Grace or his solicitors) treated the "summons" which was filed on 5th August as an "application" by Grace under s. 96A for an inquiry. The summons was in writing and it did purport to seek (inter alia) an inquiry into irregularities in connection with an election which was specified. But it was certainly not in the prescribed form: its form bore not the remotest resemblance to the prescribed form: its form and its substance were alike misconceived. And neither it nor any of the accompanying documents "specified" any irregularity which was claimed to have occurred. It stated no facts, and the facts stated in the annexure to the statutory declaration were, to a very large extent, irrelevant.

There was, in my opinion, a very substantial failure to comply with the requirements of s. 96A (2). The question then arises whether such a non-compliance justifies a writ of prohibition to the Court. It will do so, if, but not unless, substantial compliance with s. 96A (2) (a) is a condition of the Registrar's power to refer the matter to the court under s. 96B (1). The question which thus arises is the question which arose in three cases on which Mr. Ashkanasy relied. Those three cases are McIntosh v. Simpkins [1] , Alderson v. Palliser [2] and Ridley v. Whipp [3] . The question may be stated as being whether substantial compliance with the requirements of s. 96A (2) is a condition precedent to the power of the Registrar to refer a matter, or whether s. 96A (2) merely prescribes certain rules of a procedural character, compliance with which is required but the enforcement of which lies in the hands of the Registrar and the Arbitration Court, who alone have the task of deciding whether there has been compliance, and, if there has not, what consequences are to follow. In the former case, prohibition will lie, because, unless there is substantial compliance with s. 96A (2), the Registrar cannot lawfully refer the matter, and the court cannot acquire jurisdiction to make the inquiry. In the latter case prohibition will not lie: see generally per Lord Esher M.R. in R. v. Commissioners for Special Purposes of the Income Tax [4] - a passage quoted by Isaacs J. in R. v. Deputy Industrial Registrar; Ex parte J. C. Williamson Ltd. [5] . On any view, of course, what is required is substantial compliance with the statute or rules, not "literal and technical" compliance (see McIntosh v. Simpkins [6] per Collins L.J.). But I have already expressed my view that in the present case there was substantial and serious non-compliance with s. 96A (2).

(1901) 1 Q.B. 487. 2. (1901) 2 K.B. 833. 3. (1916) 22 C.L.R. 381. 4. (1888) 21 Q.B.D., at pp. 319-320. 5. (1912) 15 C.L.R., at pp. 583-584. 6. (1901) 1 K.B., at p. 491.

In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Grant [7] I was disposed to take the view that s. 96A (2) did impose conditions of jurisdiction. If this were so, the time limit imposed by s. 96A (2) (b) could not be a matter for final determination by the Registrar or the Arbitration Court, such cases as R. v. Deputy Industrial Registrar; Ex parte J. C. Williamson Ltd. [8] and Parisienne Basket Shoes Pty. Ltd. v. Whyte [9] could have no application, and prohibition would lie. I did not find it necessary to express a concluded opinion on the point because, on the construction which I placed upon s. 96A (2) (b), the application had been lodged with the Registrar within the time allowed. Latham C.J., with whom Williams and Webb JJ. agreed, took the view that s. 96A (2) (b) did not impose a condition of jurisdiction. Latham C.J. [1] said: - "The Arbitration Court had jurisdiction to determine whether the application was in due time. Even if that decision be wrong it does not afford any ground for prohibition." It cannot be that pars. (a) and (c) of s. 96A (2) provide conditions of jurisdiction while par. (b) does not. I think, therefore, that the point is covered by authority, and that we are bound to say that s. 96A (2) does not lay down conditions of jurisdiction. It is not that I reluctantly follow a view with which I strongly disagree. On the contrary, I am not at all sure that the view which I was disposed to take in Ex parte Grant [2] was the correct view: anyhow, I think it is just the kind of question which one is glad to find covered by authority. The differences of opinion which may legitimately be entertained in such a case are well illustrated by the dissent of Isaacs J. in Ridley v. Whipp [3] .

(1950) 81 C.L.R. 27. 2. (1912) 15 C.L.R. 576. 3. (1937) 59 C.L.R. 369. 4. (1950) 81 C.L.R., at p. 50. 5. (1950) 81 C.L.R. 27. 6. (1916) 22 C.L.R. 381.

In my opinion, the proper conclusion in this case is that, although there has been substantial non-compliance with s. 96A (2) (b), prohibition does not lie. It is for the Arbitration Court to determine what consequences are to follow from that non-compliance. It is open, I think, to the Arbitration Court to hold that there has been a waiver by reason of what took place on 7th December 1949, so that it is no longer possible for the union and Mr. Bond to maintain that the inquiry cannot, or should not, be allowed to continue.

I agree with the reasons for judgment of the Chief Justice.

I would add, in relation to the question whether an application for an inquiry was lodged with the Industrial Registrar, that even if the form of summons as originally lodged with the Industrial Registrar were construed as incorporating by reference the facts stated in the annexure to the statutory declaration, and even if, on that footing, the form of summons were to be regarded as specifying not only the election in question but also the irregularities claimed to have occurred and as stating the facts relied on, the position of the respondents in these proceedings would not be improved.

On the construction most favourable to the respondents the form of summons when lodged with the Industrial Registrar could not amount to an application to him for anything more than the issue of a summons by which a judge's order for an inquiry was sought. But, as the Chief Justice has pointed out, it is the Industrial Registrar to whom the Act has given the authority to grant or refuse an inquiry. The statutory foundation for an inquiry is absent if no application has been lodged with the Industrial Registrar by which he himself is asked to grant an inquiry; and no such application can be said to have been lodged in this case.

I therefore agree that the order proposed by the Chief Justice should be made.

High Court of Australia Latham C.J. McTiernan, Webb, Fullagar and Kitto JJ. R v Commonwealth Court of Conciliation & Arbitration; Federated Clerks Union of Australia (NSW Branch), Ex p [1950] HCA 29

At a glance

Court

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Judgment (38 paragraphs)

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Cases Cited (1)