R v Forbes; Ex parte Bevan

These orders nisi concern interlocutory orders made on applications by the claimants in two proceedings brought by them respectively under s. 141 of the Conciliation and Arbitration Act 1904-1970 Cth (the Act). The present applicants are, in the case of each order, respondents in those proceedings respectively. It is sufficient to dispose of each order nisi to determine that to which Mr. W. G. Forbes is a respondent.

The short question to be decided is whether on an application ex parte by a claimant in proceedings under s. 141 the Commonwealth Industrial Court has jurisdiction to grant an injunction to preserve matters in status quo so that the relief claimed may be effective if granted at the trial. The Court is declared by s. 98 of the Act to be a "Superior Court of Record". It is argued that this declaration carries with it a formal investing of the Court with power to grant the equitable remedy of injunction. I think that this is an exaggeration of the scope and intention of s. 98. To support this view I refer to a passage in Modern Equity by Hanbury, 5th ed. (1949), at p. 664. Referring to a change made by the Common Law Procedure Act, 1854 UK the learned author says that "prior to 1854 courts of law could not grant injunctions at all." There is no general grant of jurisdiction to administer equitable remedies to be found in the provisions of the Conciliation and Arbitration Act. Regulation 46 of the Conciliation and Arbitration Regulations cannot extend the jurisdiction of the Court under s. 141 so as to enable it to make either order which is here in question.

In my opinion the word "order" in s. 141 is wide enough to include an interlocutory order which is made to effectuate the object of each order which is in dispute in the present matter. What is essentially wrong is that neither order was made after giving any person against whom it was made an opportunity of being heard. The condition enacted in the section that the other side be heard is, in my opinion, a prerequisite to the making of the order, not merely a procedural provision. It should be observed that the section says that any person who fails to comply with such directions shall be guilty of an offence, the penalty for which is one hundred dollars. This is a novel sanction, if the jurisdiction exercisable under the section is an emanation from equitable jurisdiction. The provision of the sanction could explain the insertion in the section of the express condition that the person against whom an order is sought must be given an opportunity to show cause before an order is made.

Each order nisi, in so far as it relates to prohibition, should in my opinion be made absolute. But I would not order that certiorari should issue.

Orders nisi for prohibition and certiorari in two matters were returnable together. The fate of one is the fate of the other and it is convenient to deal with all the matters by considering the application by Bevan and others against Forbes and another for prohibition.

Bevan is the secretary of the Boilermakers and Blacksmiths Society of Australia. Forbes had commenced proceedings against Bevan and others in the Commonwealth Industrial Court for orders under s. 141 of the Conciliation and Arbitration Act 1904-1970 Cth. On 16th March 1972, an order nisi was granted by Kerr J. calling upon the respondents in those proceedings to show cause why orders should not be made requiring them to observe the rules of the society by treating as null and void a ballot relating to the amalgamation of the society with two other trade unions. This order nisi was returnable on 26th April 1972. On 1st April 1972, Dunphy J. upon application ex parte on behalf of Forbes restrained the respondents to the proceedings under s. 141 (the present applicants) until the hearing and determination of the orders nisi granted by Kerr J. from withdrawing moneys from the society's bank accounts or transferring moneys or securities belonging to the society to any person or organization except moneys reasonably required for the ordinary daily functioning of the society. This order was made upon the representation that the society in anticipation of the amalgamation already mentioned would close its accounts with the Commonwealth Trading Bank of Australia and the Commonwealth Savings Bank of Australia and withdraw its funds from those accounts. The applicants challenge the jurisdiction of the Commonwealth Industrial Court to make this order which I shall hereafter describe as "the order".

The order was not, I think, based upon s. 141 of the Act. It makes no reference to the rules of the society; it simply restrains certain acts pending the hearing of the application under s. 141. Had it taken the form of requiring performance of the rules of the society by refraining from doing the acts restrained, it would have been outside the power conferred upon the Court by s. 141 which in terms requires the Court as a condition of making an order under the section to give "any person against whom an order is sought an opportunity of being heard". No such opportunity was given to the applicants before the order was made.

If, then, the Court had jurisdiction to make the order, the source of that jurisdiction must be found outside s. 141. Two sources were suggested. First an inherent power in the Court to prevent proceedings properly before it from being rendered nugatory by acts of parties before the pending proceedings could be heard and determined. The second source of power was, so it was said, to be found in regs. 46 and 47 of the Regulations made under the Act (s. 198) which, it was contended, gave the Industrial Court like powers to those conferred upon the High Court by High Court Rules, O. 49, rr. 1 and 3, which could be exercised by the Industrial Court or a judge thereof in the manner set out in O. 51, r. 5 (1) of the High Court Rules.

"Inherent jurisdiction" is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as "inherent jurisdiction", which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have "inherent jurisdiction". Counsel for the respondent did seek to justify the order by reference to the maxim "ubi aliquid conceditur, conceditur etiam id sine quo res ipsa esse non potest" but I have found nothing in the Act to which that maxim could apply to authorize the making of the order. Section 141 is certainly not susceptible of extension to warrant an ex parte order not limited to requiring the observations of the rules by an organization. An examination of the provisions of the Act which do confer jurisdiction upon the Court or upon a judge of the Court provides no warrant for implying a power to make the order. I refer particularly to ss. 140 (2), 109, and 111.

The only basis upon which inherent jurisdiction to make the order can plausibly be suggested is the establishment of the Industrial Court as a "Superior Court of Record", s. 98. Has then the Court jurisdiction to make the order because it is such a court in which proceedings under s. 141 were pending at the time? I think not. In the first place, if the Court has inherent power to make some order for the preservation of the status quo pending the determination of the proceedings instituted under s. 141 that power would not, I think, extend to freezing the society's funds. The proceedings under s. 141 do not relate to the property of the society. They relate to the cancellation of the registration of the society and to its amalgamation with other unions. The orders sought under s. 141 could be made even if the society had, in the meantime, transferred its funds lawfully or unlawfully from its bank accounts. This is not a case where the ownership of a fund is in question in pending litigation and a party seeks an order for the preservation of the fund, while the ownership is determined. In such a case the disappearance of the fund would frustrate the litigation but as I have pointed out the proceedings under s. 141 could continue effectively regardless of what has been done in the meantime with the society's funds. There is, however, a more fundamental objection to recognizing the order as a valid exercise of inherent jurisdiction. In my opinion a court with the limited jurisdiction of the Commonwealth Industrial Court has not by virtue of its being a superior court of record, jurisdiction in relation to the property of an organisation which is party to litigation in the Court where no question of the exercise of powers or duties under the rules of the organization in relation to such property is involved.

The Court is not concerned with property and the protection of property. It is, as its name and charter indicate, an industrial court and although part of its statutory jurisdiction is to exercise control over registered organizations, it has not inherent jurisdiction to do so. Provisions such as ss. 109 and 141, expressed in limited terms, cannot be extended by resort to so-called inherent jurisdiction. Such inherent jurisdiction as the Court may have, could not go beyond protecting its function as a Court constituted with the limited jurisdiction afforded by the Act.

In R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1] , this Court considered the significance of the establishment of the Commonwealth Court of Conciliation and Arbitration as a superior court of record and held that because of specific limited provisions in the Act relating to the enforcement of its orders, that Court had no jurisdiction to punish for contempt arising from its being a superior court of record notwithstanding the recognition that so to punish is part of the inherent jurisdiction of a court of record (see per Dixon J. [1] ). By parity of reasoning the existence of a limited provision such as s. 141 tells against the existence of the wider power which the making of the order asserts. Furthermore, I am far from satisfied that all superior courts of record have power to make orders for the interim preservation of whatever it may be is the subject pending litigation. It is well known that in the days of the division between law and equity resort was had to the Court of Chancery to preserve the property the subject of proceedings at law. (See Spry, Equitable Remedies: Injunction and Specific Performance (1971), pp. 410-411.)

1. (1951) 82 C.L.R. 208. 2. (1951) 82 C.L.R., at pp. 253-256.

It is for the foregoing reasons that I cannot accept the contention that the Industrial Court had inherent jurisdiction to make the order.

The alternative sources of power relied upon for the making of the order cannot be recognized unless O. 49, rr. 1 or 3 of the High Court Rules would authorize this Court to make such an order. I find it difficult to translate the power given to the High Court by these rules into a matter such as a motion to require the observations of the rules for an organization; but, leaving upon one side what I regard as a basic difficulty, I am content to say that I find nothing in the rules relied upon that can be regarded as authority for the making of the order. Rule 1 is clearly inapplicable. Rule 3 relates to property "the subject of a proceeding or as to which a question arises in a proceeding". As I have already said, the proceedings instituted under s. 141 of the Act are not concerned with the ownership or the use of money in the society's bank accounts.

I find no jurisdiction in the Court to make the order. I consider that the order nisi for prohibition should be made absolute.

What I have said in this matter applies equally to the other matter before the Court.

I am of opinion that in each of these applications the order nisi for prohibition should be made absolute. I agree with the reasons for judgment of Menzies J. and do not wish to add anything to them.

I agree with the reasons for judgment of Menzies J. and have nothing to add thereto. In each of these applications the order nisi for prohibition should be made absolute.