R v Hibble [1920] HCA 83

R v Hibble [1920] HCA 83 - HCA 1920 case summary — Zoe

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'a party who desires to retain the award as it is will ever move to ind or vary it, or that the Tribunal will ever do anything so nlawful as to attempt to rescind or vary without the necessary appli- cation ? And if the Judge prohibited were functus officio, as Wright J. thought he was, after making the order of 23rd March, which was the ordinary course of winding up the Society under the Building 'ies Act 1874, a jurisdiction clearly conferring general and con- tinuous powers on the Court much larger than those of the Coke ibunal, it is difficult to see any escape from the conclusion that Tribunal or Hibble was /unctus officio here. 5, But as a third reason, which is one of fact, par. 5 of the award in our opinion looks entirely the other way from that suggested. It indicates a distinct intention to retain indefinitely the award as le and published or, using the expression in the order nisi, as promulgated," and it means that, having to give some intimation as to continuance, the award is to be regarded and acted on as in permanent. The Tribunal, or whoever made it, has done with it. It is to stand, so far as appears, as a definite final state- ment of the opinion of the Chairman as to the proper remuneration ol coke workers, but, as to its effect in law and its binding character ind its enforcement, that depends, not on the Chairman's will, not on the Tribunal, but on the Act itself (sec. 17). The Tribunal has ed and is functus officio, as soon as its award - if it is its award is " promulgated." If we ascribe a present intention to " vary" heo wise the word " varied" occurs, we must ascribe a present intention to " veseind" ; and who could imagine such a thing ? _ 6. The "award " is not an exercise of the judicial power of the Commonwealth : it is not like an order of a Court, as to which, as the House of Lords has said, the Court is not functus officio until the rder is fully obeyed. It is a part, and a necessary part, of the hod of legislation by sec. 51 (xxxv.), and when the Arbitrator's pinion ( for that is all the award amounts to) as to the dispute is announced, the statute takes it up (see. 17) and stamps it with legislative force as a legal obligation, the duty of enforcement being in e hands not of the Coke Tribunal but of the ordinary Courts. We

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The final proposition of the applicant may be thus stated : Wherever any decision has been given without or in excess of juris- diction, and at any time so long only as the decision retains any obligatory force, prohibition lies against the tribunal that gave the decision and also against the successful party, and notwithstanding the tribunal is functus officio and has no actual intention of taking any step in relation to its decision. The reason urged in support of that proposition is that prohibition lies in every case where by reason of a decision without jurisdiction a party is exposed to liability in some way dependent on the decision, and that conse- quently the tribunal itself is subject to prohibition, but that, whether or not the tribunal is subject to prohibition, the party always is. We conceive that to be fundamentally erroneous, and to be due to a radical misapprehension of the nature of prohibition and, it may be, of some expressions to be found in the books if read detached from their setting, but which, read with their surroundings, we think are not open to a construction which would support the proposition relied on. There is, to begin with, no decision, in any English Court which will support that proposition - a proposition which as applied to industrial awards we regard as disastrous. There is, as far as we can see, only one case which lends even colour to part of it, and which is to some extent exceptional. But that case, in that respect, is not only contrary to principle and prior authority but has to that extent been discountenanced in England and America. It must be remembered in limine that, since Parliament has not so far affirmatively given it, there would, but for sec. 75 (v.) of the Con- stitution, be no original jurisdiction whatever in this Court in a case like the present to issue a writ of prohibition. And, as the provision indicates, the " officer " is certainly necessary to the juris- diction. Whether he is not the only person subject to that constitu- tional power is not before us for determination. But without him

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ton v. Jeffries (1) Brett J., after referring to the standard authori- ties, said : - ' These authorities show that the ground of decision, in considering whether prohibition is or is not to be granted, is not whether the individual suitor has or has not suffered damage, but is, whether the royal prerogative has been encroached upon by reason of the prescribed order of administration of justice having been disobeyed. If this were not so, it seems difficult to understand why a stranger may interfere at all." At p. 383 he said it issues when the Court is clearly convinced that an inferior Court is acting without jurisdiction or is exceeding its jurisdiction, Willes J., in Cox's Case (2), quotes Coke's passage: '' Prohibitions by law are to be granted, at any time, to restrain a Court to intermeddle with or execute anything which by law they ought not to hold plea of, and they are much mistaken that maintain the contrary." And we would add that the mistake is not less, when the words "at any time " are read without reference to the expressions which follow, namely, "restrain" and "intermeddle with or execute." So iong as " intermeddling or execution " is possible and " restraint " is necessary to prevent the same, it is never too late to apply the remedy. But restraint connotes a real danger of intermeddling or executing in the future, either because it is actually in progress or threatened, or is in the ordinary course of practice of the tribunal. So in Fitz-Herbert (Nat. Brev., 46) it is said: " After judgment given and execution awarded in the county or in other Court baron, which hath not power to hold plea . . . the party defendant shall have a writ of prohibition unto the bailiffs, or unto the sheriff or officer of the Court, that they do not execution ; and if they have distrained the party to make satisfaction, that then they release the distress, and that they revoke what they have done therein." Revocation there, of course, means revocation of authority to (1) LR. 10 C.P., 379, at p. 382. (2) LR. 2 HLL, at p. 254.

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But it is objected by the respondents that prohibition cannot be granted against the tribunal as it is functus officio, does not intend to proceed any further. The rule nisi is for a writ of prohibition directed not only to the Chairman and the other eight members of the Tribunal but also to the Australasian Coal and Shale Employees' Federation, "to prohibit the said persons and Federation from further proceeding upon the award." The Tribunal is not going to proceed further. Under see. 16 of the Act, power is conferred on - the Tribunal (assuming it to be properly constituted) to " hear and determine any industrial dispute of which it has cognizance"; and " for that purpose" the Tribunal has all powers which are given to the Court of Conciliation as regards an industrial dispute of which the Court has cognizance. That is to say, it is enabled to " hear" a dispute, just as the Court of Conciliation can hear a dispute under sec. 23 of the Conciliation and Arbitration Act, and it can " deter- mine" the dispute (if there be no agreement), just as the Court of Conciliation can determine a dispute under sec. 24. There the power of the Tribunal ends. In my opinion, all the powers conferred are confined to the purpose of the hearing and determination of the dispute before it (see Conciliation Act, sec. 38 (a)). But even if the Tribunal could be regarded as having power to vary its award, as under sec. 38 (0) of the Conciliation Act, it cannot vary an award which is not the award of the Tribunal but of Mr. Hibble; and certainly not unless and until a distinet application be made to it. The Tribunal's power is, at the best, not higher in this respect than that of the Court of Conciliation, and, under sec. 39 of the Concilia- , tion Act, although the Court has power to do many things of its own motion, it is provided as follows: '' But no order or award shall be varied and no submission shall be reopened except on the application of an organization or person affected or aggrieved by the order or award." The position, then, is that, as matters stand, until a distinct application be made for a variation (if even then) the Tribunal cannot vary the award, cannot proceed further; and prohibition will not be granted against a tribunal unless there be ;

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a judicial character where none existed (Tramways Case [No. 1] (1) - Isaacs J. at p. 71; Lloyd's Law of Prohibitions, p. 8). It follows, in my opinion, that this Court has jurisdiction to issue a writ of pro- hibition directed to the members of a Special Tribunal exceeding their jurisdiction or to any person who assumes to usurp the juris- diction of a Special Tribunal. Objection has, nevertheless, been made that it is too late now to issue a prohibition though the usurpa- tion of jurisdiction is beyond dispute.. It is clear law, however, that whenever the want of jurisdiction appears on the face of any pro- ceedings prohibition will go after judgment and even after sentence (2 Inst., 602; Roberts v. Humby (2)). But there are some cases in the books showing that the Courts have refused a writ of prohibition after a judgment or sentence has been fully executed and there is nothing capable of being restored. Poe's Case (3) is perhaps the strongest of this line of cases. In that case the sentence of a Court Martial had been confirmed by the King and carried into execution. The Court itself was dissolved. All the important cases of this kind are, I believe, collected in Lloyd's Law of Prohibition, pp. 16-23, and fully explained. They rest, in my opinion, upon the futility of any action being taken by the Court. There was nothing, as Lloyd says (p. 22), " capable of being restored or to which prohibition could attach." The case of Jones v. Owen (4) illustrates the limits of the doctrine. A rule nisi for a prohibition had been obtained in this case to restrain a County Court Judge from proceeding in a matter relating to the delivery up of possession of certain premises. The Judge had given judg- ment with immediate execution, and possession was delivered to the plaintiff the day after the rule nisi was drawn up, but before it was served. It was objected that prohibition was too late as execution was complete. Patteson J. found no difficulty in making the rule absolute, and he even commanded restitution. Gardner v. Booth (5),

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