R v Hibble [1920] HCA 83

A Special Tribunal was constituted under the Industrial Peace Act 1920 in espect of the coke industry. The Tribunal consisted of H., as chairman, and

r cight other persons. An award (so-called) was issued by H., who signed as "Chairman, Coke Industry Special Tribunal." An order nisi was issued from the High Court calling upon H. and the eight other members of the Tribunal and the Union that asked for the award to show cause why a writ of prohibition should not issue prohibiting the members of the Tribunal and the Union " from further proceeding" upon the award. There was no power for the Tribunal to enforce the award.

Held, by the whole Court, that the alleged award was invalid, as not being the award of the Tribunal but of H.

Held, by Knox, C.5., Gavan Duffy and Starke JJ. (Isaacs, Higgins and Rich it of prohibition should issue to H., directing him not

JJ. dissenting), that a wr to further proceed with the alleged award.

On the application of the Broken Hill Proprietary Co, Ltd. an order nisi was issued by the High Court calling upon Charles Hibble, Chairman, and Frank Howard Flemming, Henry Alfred Mitchell,

Villis, Albert Edward Phillips and John Michael Walker, members of the Coke Industry Special Tribunal, and the Australasian Coal ind Shale Employees' Federation, an organization registered under the Commonwealth Conciliation and Arbitration Act, to show cause why a writ of prohibition should not issue to prohibit the said persons and the said organization from further proceeding upon a certain award purporting to be promulgated by the Chairman of the ke Industry Special Tribunal ; or, in the alternative, why a writ of certiorari should not issue to remove the proceedings held before e Coke Industry Special Tribunal into the High Court. The material ground of the order nisi was " (9) that the alleged d is not the act of the said Coke Industry Special Tribunal does not purport to be such."

A motion was also made to the Full High Court by the Broken Proprietary Co, Ltd., on notice to the Australian Coal and Shale Employees' Federation, under sec. 27 of the Industrial Peace Act 1920 for a decision on certain matters which, in the events that happened, it is not material to state.

The material facts are set out in the judgment of Knor C.J. and m Duffy J. hereunder.

Watt K.C. (with him J. A. Ferguson and Owen Dizon), for the prosecutor. That which purports to be an award is bad on its 'The Special Tribunal appointed under sec. 13 of the Zndustrial Act 1920 consists of representatives of employers and employees chairman (sec, 14), and an award must be made by all or at by a majority of all of them, Here the award, in-so many is made by the Chairman alone, and the award is not that f the Special Tribunal.

Flannery K.C. (with him Cantor), for the respondent organization. Prohibition will not lie under the circumstances of this case. The

ribunal, having made an award, is functus officio, and there is nothing for prohibition to act upon. Accepting the decision in the Builders' ers' Case (1) that prohibition would lie to the Commonwealth of Conciliation and Arbitration, it proceeded on the assump- that that Court had power to enforce its awards. Here the (1) 18 C.L.R., 224, '

Ivo Clarke, James Manners Dixon, John Marcus Baddeley, Albert C. H.C. or A.

Hiesce ; EX PARTE Broken Hirt Pro- PRIETARY Co. Lap.

Special Tribunal has no power to enforce its award (sec. 17). The power to vary the award is not sufficient to support prohibition, because the Court cannot vary an award of its own volition. The rule as to common law prohibition, which is the same as to a pro- hibition under sec. 75 (y.) of the Constitution, is that prohibition will not go unless something can be done by the tribunal by way of enforcement of the order which is said to be made without or in excess of jurisdiction (Roberts v. Humby (1); In re Poe (2); In re Knowles v. Holden (3) ;

In re Denton v. Marshall (4), and cases collected in Curlewis & Edwards on Prohibition, pp. 374 et seq.}.

[Knox C.J. referred to Tramways Case [No. 1] (5); In re London Scottish Permanent Building Society (6); Farquharson v. Morgan (7); Jones v. Owen (8); Marsden v. Wardle (9).

Certiorari will not lie, for it only lies where a tribunal is exercising a common law jurisdiction by procedure outside the common law. It does not lie to Courts exercising statutory jurisdiction (see Halsbury's Laws of England, vol. x., pp. 160, 192).

[Isaacs J. referred to Colonial Bank of Australasia v. Willan (11).)

The mere fact that the award is published in Hibble's name is not conclusive that it was not the award of the Special Tribunal. On the evidence the award was promulgated with the prior consent of all the members of the Tribunal except Mitchell. A majority of those present may act for the Tribunal if all have been summoned (Veley v. Burder (12) ).

Leverrier K.C. (with him Jaques), for the Commonwealth inter- vening. Prohibition will not lie where another tribunal has to enforce the determination (Chabot v. Lord Morpeth (13); Ex parte MW' Innes (14) ).

e following written judgments were delivered : - _Kyox C.J. anp Gavan Durvy J. This was a motion to make lute an order nisi calling on Charles Hibble, Chairman of the e Industry Special Tribunal appointed under the Industrial Pee Act 1920, the members of that Tribunal and the Australian and Shale Employees' Federation, to show cause why a wuit of hibition should not issue to prohibit the said persons and Federa- tion from further proceeding on the award purported to be promul- ted by the Chairman on 15th October 1920. The order nisi was nted on a number of grounds, of which it is necessary to consider one, viz., (9) that the alleged award is not the act of the said e Industry Special Tribunal and does not purport to be such. By notice published in the Commonwealth Government Gazette, No, 83, dated 8th October 1920, it was notified that the Governor- al in Council, in pursuance of the Industrial Peace Act 1920, appointed a Special Tribunal, to be known as the Coke Industry ial Tribunal, for the prevention or settlement of any industrial dispute or disputes which had arisen or might arise in the coke a' , such Tribunal to consist of the nine individuals named as ondents ; the respondent, Charles Hibble, being appointed an. alleged award now in question was published in the Common- Government Gazette, No. 92, of 25th October 1920, and is in the ollowing terms : - * To all coke workers in New South Wales, being \bers of the Australasian Coke and Shale Employees' Federation, | award as follows : (1) All adult day wage workers, an increase of per day ; (2) contract workers, an increase of 174 per cent. ; (3) boys and youths, an increase of 20 per cent; (4) all existing rates, ustoms and conditions not expressly altered by this award are to in in foree; (5) this award shall be operative on and from ay, the 27th day of September 1920, and shall remain in force

The original award was not produced in evidence before us, but was not disputed that the copy published in the Gazette was a

true copy. It is plain, on the face of the award as published in

HIBBLE ; EX PART BROKEN Hitt Pro- PRIETARY Co. Lrp.

the Gazette, that it purports to be the award not of the 'Special Tribunal but of Mr. Hibble as Chairman thereof - the operative words are "| award" and the signature is that of Mr. Hibble. Mr. Flannery, for the respondent Federation, contended that, although this was so, the question whether the award was or was not the awazal of the Special Tribunal could not be decided by merely looking at the form of the award as it appeared in the Gazette, and that the evidence showed that it was in fact if not in form the award of the Tribunal. In support of this contention he relied on the transeript tecord of the proceedings of a conference held on 5th October, at which all the persons who were afterwards appointed members of the Special Tribunal were present. This meeting appears to have constituted itself a "voluntary tribunal," the Coke Industry Special Tribunal not having been appointed until 8th October. It is sufficient to say that the transcript record shows that at that meeting Mr. Hibble, after some discussion had taken place, announced his intention of making an award as soon as the Special Tribunal should be constituted, and there and then announced the terms of his proposed award, which had obviously not been pre- viously submitted to those present at the meeting. It is abundantly clear from the transcript that the proposed award was announced as being the award of Mr. Hibble alone. Of course the Tribunal, which was constituted subsequently, could not be bound by any arrangement arrived at at this meeting, but it is clear that if anything was assented to by those present at that meeting, it was that Mr. Hibble should make an award in the terms then indicated. He neither asked for nor received the concurrence of the other persons present in the making of the award as their award.

The Special Tribunal having been appointed on 8th October, a meeting was held on 15th October, at which Mr, Hibble as Chairman, Mr. J. M. Walker representing the Federation and Messrs. I. Clarke, H. A. Mitchell and J. M. Dixon representing the employers were present. The purpose of the meeting appears from the follow- ing statement of Mr. Hibble : - '' This is a sitting of the Tribunal kmown as the Coke Industry Special Tribunal, formed under the Industrial Peace Act 1920. Its constitution is gazetted on Friday 8th instant - Commonwealth of Australia Government Gazette, No. 83.

¢ Chairman read the official notification.) 1 formally lay the withority on the table under which this Tribunal is constituted. will be within your recollection that prior to the issue of the constituting this Tribunal we met under what was known the Coke Industry Tribunal. That was a voluntary body con-

nder that Tribunal of 5th October 1920 an award was issued. his award was eventually, it was understood between the parties, be finally issued under the authority of the Industrial Peace Act. in the meantime the Tribunal has been gazetted and constituted under that Act. I have received an application from the pro- ors of the coke works that the Tribunal shall be called together r the purpose now of promulgating this award, so that it should have ll force and edaiaak You have been summoned here to-day for at purpose." Upon this statement being made, Mr. Mitchell immediately denied that the Broken Hill Proprietary Co. Ltd. had made any ication for Mr. Hibble to make an award, and lodged objections

the jurisdiction of the Tribunal. After some discussion the follow- ing conversation took place : - ' The Chairman (to Mr. Walker) : are representing the employees now sitting as a tribunal under Industrial Peace Act on behalf of the Australasian Coal and Shale loyees' Federation, and do I understand that you refer to this

fribunal the same dispute as was in existence when the matter was lealt with by the voluntary tribunal? Mr. Walker: Exactly. 'he Chairman: I formally ask the proprietors' representatives if accept that submission. Mr, Clarke: Yes. Mr. Mitchell : '0; so far as the Broken Hill Proprietary is concerned, they say vou have no jurisdiction. Mr. Dixon: We accept it. The Chair- : I would ask the Tribunal if they will accept the notes which have already been taken under the coal tribunal and the coke untary tribunal as a record of the proceeding of this Tribunal ler the Zndustrial Peace Act. Mr. Clarke: Yes, certainly. The

an: I have received these objections from Mr. Mitchell as to 1e jurisdiction of the Tribunal ; I have perused them and I treat them with every possible respect. Mr. Mitchell: They are sub- ed with the greatest respect to you. The Chairman: At the

same time I formally overrule all the objections, and I shall now deliver this award under the Industrial Peace Act, that is to say, that to all day wage coke workers in New South Wales who are members of the Australasian Coal and Shale Employees' Federation I award an increase of 3s. per day, and in the case of contract

• workers being also members of the said Federation, an increase of

174 per cent on their contract rates, and to the boys and youths, being also members of the said Federation, working in the coke industry, I order that their wages shall be increased by 20 per cent., and I further order that the payment shall date on and from 27th September 1920. The whole of the existing customs and conditions of the industry, except as varied by this award, shall continue and remain in force and the award itself shall be operative from the said 27th day of September 1920, and shall remain in force until it is varied or rescinded. I shall now take immediate steps to have the award sent on to the Federal Government for gazettal."

Under these circumstances it is, in our opinion, impossible to hold that the award in question was the award of the Tribunal or of any one except Mr. Hibble. There were only five members present at the meeting, and, even assuming that this was not merely an award of Mr. Hibble personally and that an award made by a majority of a Special Tribunal is an award of that Tribunal, it appears clearly that this award had not the assent of more than four out of nine members of the Tribunal, and so was not the award of the majority of the members. But it is clear that no member of the Tribunal except Mr. Hibble took any part in framing or promulgating the award; for the transcript shows that at the meeting in question, after the award had been read, Mr. Dixon required information as to whether the award applied in favour of coke workers who were not members of the Federation, and Mr. Hibble described the award as " the award which I have made." We are therefore of opinion that the award was neither in form nor in fact the award of the Special Tribunal.

It was not disputed that this objection, if sound, was fatal to the validity of the award as an award under the Industrial Peace Act, but Mr. Flannery for the Federation and Mr. Leverrier for the Commonwealth raised the point that inasmuch as the award had

en made the Tribunal was functus officio, and that it was too late H. ©. or A.

this Court to interfere by way of prohibition, It was assumed -_ _~

if the application for prohibition had been made before the Tux

wd was completely made the applicants would have been entitled Hina

0 a writ of prohibition, but it was said that as nothing more pes

mained to be done by the Tribunal in the matter, prohibition would Hx Pro- i fg eh PRIETARY lie. This objection appears to us to be founded on the assumption 'Gosia

that prohibition will not lie to a Court or person acting in a judicial yr quasi-judicial capacity unless the applicant can establish that

uch Court or person has power to take some step to enforce the order which is found to have been made in excess of jurisdiction. e answer to this objection is that the practice of this Court has nsistently been to grant prohibition to the Arbitration Court ter award, and its power to do so was asserted in (among others) e Builders' Labourers' Case (1) - see per Griffith C.J. at pp. 236-237, J. at p. 238 and Powers J. at p.272. In our opinion there is ground for departing from the conclusions arrived at in that ease. _ The real object of the writ was not merely to prevent an individual g vexed by an order which might affect him in his person or

to make such an order, but having no such jurisdiction, but also to ent any person or tribunal from assuming a jurisdiction which not been conferred on him or it. So far as the writ is regarded a means of protection for the individual who has not disentitled by his conduct, the necessity of the case demands that it

lained of has been completely exhausted. If, on the other the issue of the writ be regarded as intended to keep an erior Court within the limits of its jurisdiction, it should never e too late to get rid of what might be regarded in the future as a nt for the exercise of a jurisdiction which is not really by the law. _ In our opinion, so long, at any rate, as a judgment or order made jurisdiction remains in force so as to impose liabilities on an individual, prohibition will lie to correct the excess of itil This view is supported by the decisions in Roberts v. (1) 18 C.LR,, 224,

Humby (1) - see per Alderson B. at p. 127; Farquharson v. Morgan (2); Buggin v. Bennett (3); Ex parte Thackeray (4); Marsden vy. Wardle (5); Leman v. Goulty (6); Bridge v. Branch (7); Mac- namara v. Bell (8).

Now, assuming this so-called award to remain in force, it imposes on every person engaged in the coke industry in New South Wales who employs therein a member of the respondent Federation the | obligation of complying with the terms of the award, and this obligation is to continue until the award is rescinded or varied by the Special Tribunal. It is true that the Special Tribunal is not invested with the power of enforcing the award, but by sec. 17 of - the Industrial Peace Act an award of a Special Tribunal is made binding on the parties and is to be enforced as an award of the Arbitration Court, i.e., by proceedings in a District, County or Local _ Court or Court of summary jurisdiction (see sec. 44 (1) of the Com- - monwealth Conciliation and Arbitration Act introduced by amending - Act No. 39 of 1918). On principle, it appears to us quite irrelevant _ whether the enforcement of the order made without jurisdiction is left in the hands of the Court which made that order or is committed to some other tribunal. No doubt the test usually applied in cases decided in England for the purposes of determining whether the opera- tion of the order complained of has been exhausted is to inquire whether the Court which made the order can proceed to enforce its per- formance, but probably the reason for this is that in those cases the order if enforceable at all would be enforceable in the Court which made the order. So far as we can ascertain, no case has been brought - before the Courts in England in which the tribunal which made the order had thereby completely performed its function, the enforce- ment of the order, when made, being taken out of the hands of that - tribunal and committed to another tribunal of a judicial or quasi- judicial character.

Order absolute for prohibition against respondent Charles Hibble. No order as to costs.

The motion by the Broken Hill Proprietary Co. Ltd., being

(1) 3 M. & W., 120. (5) 23 LJ. Q.B., 263. (2) (1894) 1 Q.B., 552. (6) 3 T.R., 3. (3) 4 Burr., 203: (7) 1 C.P.D., 633.

(4) 13 S.C.R. (N.S.W.), L, at pp. 76-78. (8) 26 N.Z.L.R., 1231.

os AND Ricu JJ. (delivered by Isaacs J.). This is an applica- n to the Court in its original jurisdiction under sec. 75 (v.) of the mmonwealth Constitution for a prohibition restraining certain s as members of a Federal tribunal called "' The Coke Iftdustry Tribunal" from " further proceeding upon the award pur- ed to be promulgated by the Chairman" of the Tribunal on 15th ber 1920. This is the only order in the nature of prohibition the Court is asked to make or can make. We shall refer to he members as a whole as "' the Tribunal "' in contradistinction to Hibble, the Chairman, who, however, like all the rest, is only pro- ed against as an integral portion of the Tribunal. It is of the " Tribunal" as such which is sought to be prohibited - ing short of that is claimed, or, if granted, would affect its bers for the time being officially. There is in the order nisi an tive claim for certiorari; but for various reasons that was lropped, and need not be considered. The prohibition, however, 't also against '* The Australasian Coal and Shale Employees' tion," who are not " officers of the Commonwealth."

mong the many grounds taken in the order nisi are grounds going the constitution of the Tribunal, the existence of a dispute, the State nature of the dispute if any existed, the status of the nization in relation to the dispute, the reference of the dispute o the Tribunal, the constitutional power of the Parliament to nact certain portions of the new Act, the jurisdiction of the Tribunal ke such an award, and, finally, that the alleged award was not | fact and does not purport to be the award of the Tribunal ght to be prohibited. It will be perceived, therefore, that the dings challenge the jurisdiction of the Tribunal and the juris- of Parliament. It happens that the questions raised as to jurisdiction of Parliament and of the Tribunal have not been argued, since, in the view taken by the Court, they are unnecessary. In this case the validity of the legislation and of the constitution of the Tribunal is assumed. The one defect acted on is the fact that

e award is not in reality and does not purport to be the award of 'VOL. XXVIII, 30

itingent on the Court holding that it had no jurisdiction to issue H.C. o A.

e HIBBLE ; Ex parte Broken Hit Pro- PRIETARY Co. Lev. Isaacs J. Rieh J.

H. C. or A. the Tribunal, but only of one member of it, Mr. Hibble, the Chairman,

Greatly as we regret there should be any difference of opinion on a matter of such great public importance, we are unable to concur in the decision to grant a prohibition in this case. In the first place, we shall state succinetly the steps of reasoning which guide our minds to the conclusion we have reached, and then as some of those steps involve considerations more or less controverted or complex, but all of them very important to the Commonwealth in many aspects, we later on state in detail the reasons for each successive step.

1. The first question which this Court has to consider in this case is its own jurisdiction to do what is asked. As the only power it possesses for the purpose is under sec. 75 (v.) of the Constitution, it is necessary that the Coke Tribunal should itself be amenable in the circumstances. Otherwise no prohibition can be granted against the Federation of Employees, whatever a common law Court might do in such a case; our own opinion, however, being that even at common law the position would be the same.

2. The duty of this Court to consider well its own jurisdiction in the particular circumstances in all cases where its interference with Commonwealth industrial awards is invoked, we are strongly of opinion, should, as a matter of principle, be very strictly pursued, in view of the clearly expressed will and policy of Parliament, repeated emphatically in the latest Act, that while full opportunity should be and is afforded for the assistance of this Court to indus- trial tribunals pending arbitration proceedings, yet in the interests of industrial peace absolute finality should exist, once an award is made. This principle, in our opinion, follows directly from the Constitution, which makes Parliament within the ambit of its powers the supreme interpreter of the will of the Australian people. We regard as by far the most important feature of the present case our outstanding duty to be specially careful that, unless the most absolute necessity is forced upon us by the facts, we should not interpose our authority so as in any way to oppose or counteract the distinct policy of Parliament for the peaceful progress of industry by assuring disputants that awards after arbitration are as reliable as settlements after strikes.

g established by the applicant for prohibition against proceeding a decision that the tribunal sought to be prohibited is either ling, or has a present intention to proceed, further in relation that decision. And in an application such as this a specially case " should, as we have said, be required. |. In the present case the decision complained of is the award ly " promulgated," and not any new award or varied award, md on high authority an applicant for prohibition should be held rie tly to his case. 5, Assuming that award to be an award of the Tribunal, so far m the facts showing a "clear case" of intended proceeding by he Tribunal the document indicates that the Tribunal has finished 'ly with the matter so far as it can at present see, and does not Cm , a8 far as appears, to do anything more. 6. In any case - both as to the Tribunal as a whole and as to le the Chairman - whoever it was that made the award was officio. The award was not the act of a Court, which makes follows up its orders till they are obeyed. It was not an exercise ¢ judicial power of the Commonwealth, but - according to the ed views of four of the present members of this Court, found and previous cases - an act in aid of legislation, That is to r, it is part of the method required by the Constitution under ¢, 51 (xxxv.) to be followed by the Parliament in determining , tory obligations of industrial disputants, and, once declared,

er ceases or another statutory rule applies in its place.

. Future variation by the Tribunal should not in any event be med unless an application were made, and the fear that a ion might be made upon such an application is not a legal for prohibition.

rd promulgated is not in fact an award of the Tribunal and does at even purport to be an award of that Tribunal. We agree with hat and consider it, as a determinative fact among the various mstances we have to consider, absolutely fatal to the success e application.

But the ninth ground of the applicant's rule nisi is that the

yet Tue Kine v Hipee ; Ex PARTE Broken Hut Pro- PRIETARY Co. Lap.

. That duty consists on all occasions of insisting on a " clear case " H.C. or A.

H.C.or A. 9. Inasmuch as the ninth ground is true, it follows necessarily pou that the statement as to variation and rescission in the award is not Tue Krxc and does not purport to be a statement by the Tribunal; and it Siu; Would be absurd to suggest and no one has suggested, for it would ne be futile in every way, that Hibble alone intends or is able to vary Hurt Pro- or rescind an award on his own personal independent authority. peas 10. On the applicant's own case, therefore, not only is there

nothing to support its claim to prohibit the Tribunal or its mem-

Isaacs J. Rich J. pers as such on the ground that the cireumstances show an intention

in fact on its or their part ever to proceed on the award, but the fact is conclusively established to the contrary. :

11. Finally, there is no right as contended for to prohibit the Federation of Employees on the ground that, apart from any intended action on the part of the Tribunal, the award creates an obligation which, if not declared unlawful, might be enforced before some ordinary Court of justice. Consequently, in our opinion, on all grounds the prohibition should be refused.

We now proceed to deal in order more fully with each of the matters we have indicated.

1. On the very threshold of this case, as we have said, stands the question as to the jurisdiction of this Court in the circumstances to interfere at all. Prohibition is for the avowed purpose of main- taining the strict letter of the law in relation to jurisdiction, and solely to prevent any attempted usurpation of judicial power. In - Cowan's Case (1) Abbott C.J. said for the whole Court: "The Court, whose assistance may be invoked to correct an excess of juris- diction in another, will, without doubt, take care not to exceed its - own." To fail in this would be exempli pessimi in any case, for it would be not law but despotism ; but in a case like the present we ; cannot but feel the strongest obligation to observe very special - care not to exceed the limits of the power the law has given us. - The case arises - as nearly every similar case in this Court has arisen - under the Federal enactments by which Parliament, as - representing the will of the people, has sought to preserve without - interruption by internal disputes the continued operation of the national industries of Australia. Recently, in promotion of this

ce Act 1920, and under this Act the Tribunal referred to was

First, it is unquestionably our duty, where occasion strictly Is for it, to declare regardless of consequences the pre-eminence the Constitution over any attempted legislation unauthorized. it is equally the duty of the Court where its judicial action is invoked, to respect and, if necessary, to enforce the directions of liament as the sole interpreter of the national will unless such ons are upon due occasion and argument solemnly adjudged to invalid, And further it is the duty of this Court, whatever be the ralidity or invalidity of any Parliamentary enactment, not to inter- we unless the Constitution either directly or through the authority Parliament confers, in the particular instanee, the power and duty upon the Court to interfere. Otherwise the interference e Court, whether the matter in question be valid or invalid, /an unwarrantable intrusion and a breach of law as great as any assumes to correct. (See per Fry L.J. in London and Blackwall ilway Co. v. Cross (1).) In some instances, it is true, no practical ury immediately results; nevertheless, it is unlawful and is a In the present case, for example, the result might or

ot be measured by the particular result of a case. The point iat presses us most in the present application is that Parliament 1 fact has, beyond all question, in attempting to cope with wide- d industrial unrest taken into account competing considera- s for the general welfare, and has selected as the best upon the ole a definite expedient, the principle of which is well known, is clearly expressed in Tabernacle Permanent Building Society v. (2) by Lord Halsbury L.C. On the one hand, it had the ssible course of settling industrial disputes once and for all by of appointed tribunals, and, while giving directions to its 8, yet trusting those tribunals to observe the directions, and

ing amply for obtaining from this Court the fullest directions (1) 31 Ch, D,, 345, at p. 371. (2) (1892) A.C., 298, at p. 302.

t, a further enactment was passed called The Industrial H.C. or A

1920, ~~ Tue Kine v. Hiseie; EX PARTE Broken Hitt Pro- PRIETARY Co. Lap.

Tue Kine v HIssBie ; Ex PARTE Broken Hitt Pro- PRIETARY Co. Lrp.

as to law while the arbitration was pending, yet not permitting any errors which tribunals might inadvertently fall into to invalidate their final action. On the other hand, it had the possible course of allowing employers and employees after the supposed settlement of their disputes and at any period of time after the award, when perhaps evidence had disappeared and men and women were relying on the assurance of the public tribunal, to drag each other through

the law Courts contesting every step, insisting on rigid adherence to

technical provisions at the peril of destroying the arrangement

arrived at, and leaving the opposing parties in the same state of -

antagonism as before, but exasperated by additional litigation, and one side at least embittered by the struggle, defeat and loss, and at the same time leaving the public at large individually and collee- tively to suffer. Parliament, having weighed both sets of considera- tions and after several prohibitions by this Court, followed by sug- gestions from some of its members, has, in the interests of public peace, in fact and beyond controversy deliberately chosen the former (sec. 28 and other sections) whatever its powers to do so might be, and its powers are not now passed upon. We may add that even if its powers were in this respect exceeded - though apart from

sec. 75 (y.) of the Constitution we do not even suggest they were - the mere enactment of public policy is a very weighty consideration in our minds. We conceive it to be our duty on all such occasions as this to serutinize with the utmost care the case presented by those who invite us to use the weapon of prohibition after an award is made, and thereby act in opposition to the expressly declared will and purpose of Parliament by annulling a settlement in fact arrived

at; and we believe it to be our judicial duty, having regard to the

authority of decided cases, to insist that the legal necessity for our -

intervention shall in this case be established beyond all reasonable doubt.

3. It is settled law both in England and Australia that before a person. can obtain a prohibition, even in a matter of ordinary impor- tance, he must make out a "clear case." So said Jervis C.J. in Re Birch (1). And in the same case Cresswell J. said (2): "We are not bound to grant a prohibition . . . unless we are clearly satisfied

(1) 15 C.B., 743, at p. 755. (2) 15 G.B., at p. 756.

the inferior jurisdiction is about to exceed its powers." This prin- ple was recognized in Elston v. Rose (1) by Judges of great emin- , and was followed by this Court in R. v. President of Common lth Court of Conciliation and Arbitration; Ex parte Australian icultural Co. (2). In the interests of public peace, in the clear line f our duty to respect the high public policy which Parliament, as the expositor of the public will, has established so far as it can to settle, not to haye again unsettled, the industrial struggles which if to continue must paralyse the progress of this or any nation, ve deem it our special obligation to follow the high judicial authority ed by us, and previously followed by this Court. We therefore ely scrutinize the facts before us, and unless we find a " clear " is established, one which " clearly satisfies" the Court that Coke Tribunal, whatever has happened in the past, is in fact to proceed in the future upon an unlawful course, we are of on the Court ought to refuse the prohibition asked for. _ In passing, and before inquiring whether there exists this ase" as to the Tribunal itself, we desire to say that with respect to "party " sought to be prohibited we are by no means satisfied,

much as the Employees' Federation is not an " officer," that e exists any power in any circumstances to grant the prohibition. fot being a common law Court, and having only defined statutory s, we have no jurisdiction to extend it to cases which other possess by virtue of common law powers more extensive. We ay this, however, mainly in order to prevent future misunder-

In the view that prevails, this is immaterial in the present because that view maintains the liability of the Tribunal itself to prohibition. But it may be important to remember for future and, as we shall presently point out, it is very important even incidentally, having regard to one of the arguments addressed

_ 4, Now, as to the Tribunal, the prohibition sought, as already is against "' further proceeding on the award promulgated."

is to be ordered not to proceed further to carry out or force the award as it stands - not some other award, not a different

H.C. or A. award, not even that award altered in some particulars, but that

award, letter for letter as it has been " promulgated." It is laid

we down by the Court of Appeal in England (R. v. Commissioners

for General Purposes of Income Tax for Kensington (1) ) that even the grounds for a prohibition should be stated in the rule, and, as Lord Sterndale (then Pickford L.J.) said (2), in the absence of amendment the party should be confined to the grounds stated. A fortiori, as it seems to us, should he be confined to the thing sought to be prohibited. Nothing should be strained in favour of prohibi- tion against industrial awards. If the law affords a remedy by way of defence in the ordinary course, it is open to every one concerned. If the established public policy of the law is to deny the power of impeaching an award in the ordinary way, we think that is a reason for this Court being extremely cautious not to defeat that public policy unless we are absolutely driven to do so by the most inexor- able duty. Now, so far from there being a " clear case " that the Tribunal is about to proceed with the award " promulgated," we think the contrary is established. There is not a word or a syllable to prove or even suggest that the Tribunal has ever threatened or attempted to "' proceed " with the award. There is not a word to indicate that the Tribunal has any present intention to take the least step to enforce or even alter the " award" as made and pub- lished. No one has ventured to suggest the contrary. It is urged, however, that proceeding with the award " promulgated " includes it - that is, making it different, or "' rescinding it," that is, annihilating it ; and that for these purposes sec. 16 of the new

Act confers all the powers of the Court upon the Tribunal, including the power contained in sec. 38 (0) of the Commonwealth Conciliation and Arbitration Act, namely, " to vary its orders and awards and to reopen any question," and that by par. 5 of the award in this case reference is made to variation and rescission. To that contention, assuming, contrary to our opinion, its relevaney to this case, there are several potent answers. First, on the face of the section, the suggested power is not given. The Arbitration Court's powers incorporated by sec. 16 are all limited by the words " for that purpose," which means the purpose of the " power to hear and

(1) (1914) 3 K.B,, 429, (2) (1914) 3 K.B., at p. 444.

_ power of the Court in sec. 38, namely, that in par. (a). Next, even the Tribunal had the power suggested. the power of variation is a ver conditioned by sec. 39 of the same Act, and requires as a prior

n be implied, and here the prior event has not occurred. Authority hardly needed for so plain a proposition, but it exists. As an ly case, in Gould v. Gapper (1) Lord Ellenborough C.J. acted on e principle that the superior Court has no reason to suppose the erior tribunal will determine wrong. As a later case, there is Wills v. Luff (2). There a judgment for foreclosure absolute having Teen given, Chitty J. held that the case was " at an end," 'notwith- ling the well known power of the Court (see Campbell v. Holy- (3) ) to reopen the matter, and alter the judgment to permit the defendant to redeem. But unless and until such an application made, the Court, as the learned Judge held, is powerless to add line to the judgment. We do not think any one would venture to say that because of that conditional power Chitty J. was attempt- 'ing to exercise the jurisdiction of reopening the foreclosure. But at is the analogue of "variation" in relation to an award. We should by parity of reasoning - as we think - be constrained to d the same even in the case of the Arbitration Court, particularly since the decision in Waterside Workers' Federation of Australia v.

. W. Alexander Ltd. (4) denying to that tribunal the judicial s of enforcement. For, if the argument pressed be sound to awards under the new Act, it certainly throws open to pro- ibition at any time awards under the Court's Act. It should mentioned, in view of the reference during the argument to the ers' Labourers' Case (5), that not only what was there prohibited a delegation of judicial functions purporting to be continuous e pp. 226 and 252), but the opinions of Griffith C.J. and Barton J. avowedly based on what, with deep respect, we hold without itation to be a mistaken view of what one Judge - not the pre- ling Judge - said in Roberts v. Humby (6), a view, furthermore, (1) 5 East, 345, at p. 364. (8) 25. CLR. 434.

38 Ch,'D., 197. (5) 18 C.LR., 224. 7 Ch. D., 166. (6) 3M. & W,, 120.

ermine any industrial dispute," and that is only the very first H.C. or A.

that, if correct as to the common law, is not correct with respect to our Constitution, There has never been any decision of this Court that - on the assumption of the Arbitration Court not having judicial

powers - an award dealing with arbitral matters can be prohibited. In ee those circumstances we think what Lord Parker said, when Judge of Hiv Pro- first instance, applies to this case. In Wigan v. English and Scottish Co. Ley. Law Life Assurance Association (1) that learned Judge, when asked to assume from a prior decision that some particular point was neces- sarily involved, said: "I do not know how that may be, but I do

not think that any inference can be drawn from a case of that sort

which would justify me in treating it as a decision of law on a matter with which the Judges were evidently not intending to deal in the slightest degree." And in any event the question is,one of funda- mental law, which we hold as we have stated, and particularly of constitutional law, which is superior to any unauthorized slips in practice. A fortiori should the reasoning we have set out as to the Tribunal being functus officio with respect to arbitration be applied to the Coke Tribunal. A case very much in point is In re London Scottish Permanent Building Society (2). Prohibition was sought against the Judge of the City of London Court in respect of two orders he had made, one being dated 23rd March and the other dated 13th June, which discharged the first order and directed the payment of costs. The two learned Judges who composed the Court expressed very important opinions which are relevant here. Charles J. for the purpose of the order of 13th June assumed that the order of 23rd March was within jurisdiction, and on that assumption held that the later order was without jurisdiction. But why ? His Lordship said (3) : " For a Judge to discharge or vary his own final order without the con- sent of the parties is clearly an excess of jurisdiction warranting an application for prohibition." Wright J. held (3) " prohibition must go against the order of the 13th of June, which the Judge had clearly no power to make, since he was /wnctus officio in regard to the whole matter." The words " discharge or vary " in the judgment of Charles J. are very pertinent to this case, and, as it would in any case be an unauthorized act to proceed to vary or rescind an award however

'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

good without a prior application, why are we to assume éither that H.C. oF A.

we Tue Kive v. Hisar ; Ex Parte Broken Hit Pro- PRIETARY Co. Lrp.

have fully expounded our views as to this in Alewander's Case (1); and our brother Powers's view at p. 485 is, as we read it, in accordance with our own. It is also held by our brother Higgins in Australian Boot Trade Employees' Federation v. Whybrow & Co. (2), basing it, as we have based it in Alexander's Case, on the principle laid down by the Privy Council in Powell v. Apollo Candle Co. (3). It stands, therefore, on the authority of four, that is, an absolute majority, of the present members of this Court, that an award is of a ~ legisla- tive" nature because it is a " factum"' on which the law operates. The Tribunal, then, is functus officio unless and until it is by law put again in motion, but only for the purpose of creating a different " factum "' either wholly new or by way of variation. But in the meantime, and with regard to the completed award, how can it reasonably or legally be said that the Tribunal is about to do any- thing? And, still more, for that is what should determine our right to issue prohibition, how can it be said that a " clear case" of such intended action is made out ?

7. The utmost that could be said, so far as the Coke Tribunal is concerned, is that if an application should be made and jf the Tribunal were to entertain it, it might, according to the attitude of the Tribunal when applied to, evidence an intention to proceed. Putting that into simpler language, it means that there is a fear of a possible usurpation of jurisdiction, Lord Dunedin, for the Privy Council in Attorney-General for Canada v. Ritchie Contracting and Supply Co. (4), has very plainly stated what a party must prove quia timet even where that is a valid reason for interference. But nothing is better established in relation to prohibition than that prohibitions are not granted quia timet. That has been acknow- ledged law for about three hundred years (Hill v. Bird (5) ), has been acted upon recently by the Lord Chief Justice of England in cireumstances much more indicative of intention to proceed than exist in this case (Ex parte Burns (6) ), and we think, for all the reasons stated, we are bound to adhere to it and act upon it. We are therefore clearly of opinion that, even treating Hibble as the Tribunal for this purpose, prohibition is not competent.

(1) 25 C.L.R., at pp. 462-464. (4) (1919) A.C., 999, at p. 1005. (2) 10 C.LR. (5) Aleyn, 56. (3) 10 App. (6) 86 LJ.

8. But further, one of the grounds, indeed the very first one argued,

for upholding the prohibition to the Tribunal (ground number 9

'in the rule), is that the award does not even purport to be that of the Tribunal, and was not in fact that of the Tribunal. Now, as there is nothing in the facts to support the case against the " Tribunal " as attempting a usurpation of jurisdiction except something which, as 'the applicant says - and effectively says - neither is nor purports to be the award of the " Tribunal," we regard it as entirely incon- 'sistent and legally impossible to go on and urge that there is a suffi-

cient or rational proof of intention to proceed in ied to maintain prohibition against the Tribunal.

_ 9. Hibble, the Chairman, personally, it is said and with truth, is not the " Tribunal " for the purpose of the award ; how, then, is the Tribunal to be made identical with him for the purpose of the prohibition? If Hibble and not the Tribunal is the person who purports to have made the award and who actually made it, must not Hibble and not the Tribunal be also regarded as the person who purports to intend and does intend - if anybody does - to " vary or rescind it." But nothing is sought against him apart from his membership of the Tribunal - any such claim would be useless as well as outside the present application, for nobody imagines he so

• intends.

10. In our view the applicant's position taken altogether in relation to the Tribunal is not only impossible to be maintained on the admitted facts, but has been disproved if intention to proceed is a necessary element in prohibition as we think it is, and we accor- dingly reject it.

11. In the circumstances, however, we have to consider still 'another contention advanced by the applicant. It is one which has on several occasions, over many years, been pressed upon this Court; it has often, including the present case, occupied a consider- able portion of public time and evoked diverse expressions of opinion on the part of members of this Court. Hitherto a judgment on that point has not been found necessary; it is now necessary, having regard to our opinion on the rest of the case. We believe it desirable, and that in the long run it will conduce to the greatest economy of time so far as we are concerned, if we state once and for

H. C. or A. all with as much clearness as we can command the views which we 1920. s

entertain and have from time to time expressed, and in which renewed examination of the authorities on the present occasion confirms us. We regret that, as frequently happens, a mere reference to the cases is insufficient, because different views are held as to their effect. It is necessary to examine them carefully.

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

g for the moment that a common law Court couid do so by e of the principle stated by Willes J. in London Corporation Cox (1). It is indispensable therefore in this Court, acting under ¢. 75 (v.) of the Constitution, to establish the right to prohibit the 'Tribunal itself even though the common law were otherwise. We e, however, having regard to the general importance of the sub- and the argument so often addressed to us, to say that to our s the common law is the same. There might be practical ties - as the absence of the tribunal from the Realm - in

is no difference between the proceedings against the party and the ,, except in the expressions " sequi placitum," " trahere in placi- " " multipliciter fatigare," and the like, for the one, and "tenere itum," for the other. In short, the prohibition went against the to " hold plea," or its equivalent, down to complete execution 'its judgment, and against the party from " following plea," or its quivalent, down to complete execution of the judgment in that Court. It must be "the same Judge" (Smallbrook v. Slader (3) ), that is, the same " tribunal " - a condition which the proposition contended entirely overlooks. Reason, indeed, precludes any other view. or instance, assume some inferior tribunal to pronounce a decision nly beyond its jurisdiction and assume the successful party to upon it in the Supreme Court of a State, could it be said that hibition could be granted against the party restraining him from e in the Supreme Court? Only one answer is possible. basis of prohibition would there be wanting, namely, the usurpation of judicial authority by the tribunal concerned. And e answer to an application would be that the Supreme Court ould have jurisdiction to pronounce on the validity of the decision. reference to such a situation Rowlatt J. in R. v. Chester Licen- Justices; Ex parte Bennion (4) said : - * A more grotesque view

nted to prevent an inferior tribunal usurping jurisdiction, and it

(1) LR. 2 H.L., 239, at p. 280. (8) 1 Keb., 731. (2) LR. 2 HLL, at pp. 280-281. (4) (1914) 3 K.B., 349, at p. 354.

'it is beyond argument incompetent to prohibit the party, even con- H- C- or A.

• involves this, that the inferior tribunal is doing something which it

The essential nature of the writ of prohibition is thus stated by Blackstone (3 Comm., 112): "A-writ . . . directed to the Judge and parties of asuit in any inferior Court, commanding them to cease from

• the prosecution thereof." Observe the word " thereof." In Worthing-

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.

further, because, as held in Hall v. Norwood (1), the Court 's Bench laid down the principle that after judgment and

late to move for prohibition, the Court observing, " since is no person to be prohibited, and possessions are never taken or disturbed by prohibitions." That case was cited and acted

, quoting Darby v. Cosens (3), that there "' something remained » be done," that is, of course, by the tribunal. As is said in Short Mellor's Crown Practice, 2nd ed., at p. 253, the difference between junction and a prohibition is that the latter is " directed to the itself."

do not refer to Roberts v. Humby (4) as an exceptional case, gh, as has happened on prior occasions, it has been quoted if it were by reason of Baron Alderson's judgment. The e was one of prohibition against. the Court of Requests to train that Court " from proceeding." A judgment had been given and costs against Humby, and he had been notified that ion would be issued unless he paid on or before 20th November. from the question whether the Court below had jurisdiction e the order, the only matter in contest was whether after prohibition would lie notwithstanding execution had not issued. The Court on 25th November, the rule having been d some days before, held that it would. Lord Abinger C.B. (5) that prohibition is "to restrain the inferior Court from eding."" Alderson B. said (6): "I think a writ of prohibition y ite granted even after execution." He then quotes the Articuli from Coke's Institute to support his opinion. But the learned jaron could not have intended to say anything inconsistent with 'Lord Abinger had said, nor with what he himself had said in do (7) when he used the expression " to restrain the inferior s from proceeding upon a sentence passed." Nor could he

• that when a party who "for his long continued e is laid in prison upon the writ of excommunicato

165; 1 Keb., 614. (5) 3M. & W., at p. 125. (6) 3M. & W,, at p. 127. (7) 3M. & W., at p. 123.

ition (which in Keble appears to have been completed) it was

H.C. or A. capiendo " is there otherwise than by reason of the continuous act

1920. of the Court in enforcing its sentence. In Austen v. Dugger (1) Sir John Nicholl said: "This Court is not functus officio till it has Ms enforced the execution of its decree." Lord Selborne's reference

cpa to that case in Mackonochie v. Penzance (2) ought, we think, OKED

Hitt Pro- to place the matter beyond controversy. Roberts v. Humby (3),

ate consequently, is no exceptional case, nor did Alderson B. attempt

Imag, any revolutionary step. A case of Bridge v. Branch (4) cited during

Nich J. the argument was relied on to support the view supposed to be adopted by Alderson B., namely, that a judgment given without jurisdiction is subject to prohibition, although the Court that gave it is functus officio. The Mayor's Court had given a judgment which had been removed under statute to the Court of Common Pleas. That Court, nevertheless, granted prohibition to the Mayor's Court, but it did so under circumstances which make the case an authority against the view contended for. The rule nisi was twofold: (1) to set aside the judgment so far as it was a judgment of the superior Court, and then (2) to prohibit the Mayor's Court from enforcing it. The Court took the first step, which in law restored the judgment to the Mayor's Court, and only then prohibited that Court. So far there is no case diverging from the strict line of prohibition. The

really exceptional case is Jones v. Owen (5). In that case Patteson J. held that where a rule for prohibition was obtained while the unauthorized execution proceedings were in progress, it might be made absolute though in the meantime they had come to an end, and that the rule should be drawn up ordering restitution, which indeed was the only effective order that could be made. The judg- ment in that case was based on the fact that the rule was obtained before the execution was completed, and that would be sufficient to distinguish it from this case. But it is inherently wrong. In In re Denton v. Marshall (6) Pollock C.B. held, in somewhat similar circumstances, that there was nothing to prohibit. Martin B. held similarly ; and Channell B. agreed that " the application was too late." Martin B. (7) expressly declined to admit the authority of Jones

(1) 1 Add,, 307, at p. 310. (5) 5 Dowl. & L., 669, (2) 6 App. Cos., 424, at p. 435. (6) 1H. & C,, 654, (7) 1H. & C., at p. 661.

oberts v. Humby (3) and other cases were cited, it- was held er J. delivering the judgment) that the writ of prohibition can- %t do more than stay any further proceedings by the prohibited Hoffman's Case is well worth perusal. And Jones v. is opposed so far as restitution is concerned, and therefore to the actual decision of the case, to the recent case of Kensington ne Tax (4), to be presently dealt with. esides the authorities above cited, there are two classes of cases should be mentioned: first, cases in which affirmative 'ions are found enunciating the principle of prohibition, ions which we think would be misleading unless they were yarded as implying a negative; and a second class of cases h expressly determine the negative. mong the first class are these: (a) Paxton v. Knight (5);

e v. Steele (8), as cited by Willes J. in Cox's Case (9) ; ipson v. Ingham (10), the declaration in which averred that pondents "are still proceeding in the said plaint"; (e) per J. in Byerley v. Windus (11) ; (f) Ellis v. Fleming (12) ; (g) In on Scottish Permanent Building Society (13), where Wright "an application for prohibition is never too late so long as is something left for it to operate on " (" it," of course, means prohibition, not the decision) ; (h) Kavanagh v. Herbig (14); (i) ¢ v. De la Bere (15), where Chitty J. felt compelled to ascertain. er the Ecclesiastical Court was functus officio, before he had

Ad. & E., at p. 309. R. 2 HL. at p. 270. G.B. (N.S), 231, at p. 234.

n (1). In United States v. Hoffman (2), in circumstances H- C. or A.

aes Tae Kise Hinpie ; EX PARTE Broken Hit Pro- PRIETARY Co. Lrp.

• proceedings were not terminated, for though judgment was recovered

there was still something left to be done"); (k) Kensington Income

; Tax Case (1). The latest of the cases mentioned of the first class,

namely, the Kensington Income Tax Case (2), should be specially stated. The General Commissioners for Kensington had confirmed assessments on a taxpayer called Aramayo for the years 1908, 1909, 1910 and 1911 respectively; a prohibition was sought in respect of all the assessments. The Court of Appeal held that the assessments were all made without jurisdiction, that the Commissioners were subject to prohibition in a proper case, that the prohibition should be granted as to all the assessments except one, and that it should be refused in the one instance because, the amount having been paid, there were, as Swinfen Eady L.J. said (3), "not any further pro- ceedings to prohibit." That meant " proceedings " by the Com- missioners. Pickford L.J. said as to that one case (4), " there are no further proceedings to be taken." On appeal to the House of Lords, the decision was upheld (5). There are two points to observe as to that case : - (1) Prohibition was refused where payment had been made. This makes it quite clear that prohibition does not lie merely to declare null and void a judgment given without juris- diction; and it shows that what Lord Denman C.J. said in Boden- ham v. Ricketts (6) as to " a precedent if allowed to stand without impeachment " has reference to a judgment not entirely completed by execution. And it also shows that in Farquharson v. Morgan - (7), what the language of that case appears to us to indicate independently, the underlying assumption of the learned Judges was that something still remained to be done by the Court that was prohibited, namely, to enforce its award - the only contest being - whether, the want of jurisdiction being patent, the applicant could - contract himself out of the right to prohibition. (See as to this R. v. Kensington Income Tax Commissioners; Ex parte Princess - Edmond de Polignac (8).) (2) Prohibition was granted to restrain - the Commissioners from proceeding on the assessments. That had

(1) (1914) 3 K.B., 429; approved (5) (1916) 1 A.C., 215. (1916) 1 A.C., 215. (6) 6 N. & M,, 170, at p. 176.

(3) (1914) 3 K.B., Re nf 443. (8) (1917) 1 K-B., 486, at p. 517.

Act 1880, secs. 86 to 89, by which they can distrain and and even imprison. (See Lumsden v. Burnett (1) and Elliott v. (2).)

Among the second class, which, of course, are the more decisiv

: (a) Chabot v. Morpeth (3); (b) Serjeant v. Dele (4); (c) United tes v. Hoffman (5); (d) Ex parte M'Innes (6); (e) Ex parte Bennett );(f) Ha parte Fangett (8). In Chabot v. Morpeth the material its were as follows : - The Commissioners of Woods and Forests notice to take Chabot's lands ; and, no agreement as to com- tion being come to, the Commissioners issued their warrant

o the sheriff to summon a jury to determine the amount of eom- tion, At the inquiry the sheriff, at the instance of the Com- s' counsel, directed the jury to inquire into the plaintiff's le as to some of the land, and on that basis a verdict for only £756 was returned, for which sum the sheriff gave judgment. The heriff had not recorded the verdict or the judgment, nor had the Commissioners. A prohibition was moved for against the sheriff to in him from recording the verdict and judgment and against the jioners to restrain them from using the verdict or judgment. Campbell C.J. held (1) that the sheriff was /unctus officio ; (2) that he duty of recording was not cast on him ; and (3) that therefore, art from any other reason, no prohibition lay against the sheriff.

"recording " still might take place, but by a body other than he sheriff or the Commissioners. As to the Commissioners it was sfused because they were not judicial but executive officers. The nportant points to observe are: (1) a judicial error, possibly ting to want of jurisdiction, had resulted in a judgment tive against the party ; (2) the Court that erred was /unctus io; and (3) one party to the judgment was able to use the judg- ent to the detriment of the party complaining. Nevertheless, ohibition was refused by a Court composed of Lord Campbell C.J. (6) 4 N.S.W.LR., 143.

e to their powers of " recovery" given by the Taxes Man- 4: ©. or A.

Tae Kixo . HIBBLE ; EX PARTE Broken Hitt Pro- PRIETARY Co. Lap.

H.C. or A. and Patteson, Wightman and Erle JJ. In Serjeant v. Dale (1) apro-

hibition was moved for, directed to the Arches Court of Canterbury, to restrain further proceedings in a case where a monition had been

ued, then an inhibition, and lastly a sequestration. Lush J. (for him- self and Mellor J.) held that prohibition should go, but only because "if not stayed it" (the sentence) " will or may end in deprivation " (2). After the case of Mackonochie v. Penzance (3) it is established beyond discussion that deprivation is a step in the proceeding, a

mode of execution of the sentence. One can hardly imagine anything more permanently affecting the rights of a party than a sentence which, if deprivation had already taken place or had been impossible, would clearly, in the opinion of the Court, not have been open to "prohibition." Hoffman's Case (4) has already been referred to. In Ex parte M'Innes (5) Sir James Martin C.J. stated the law with his accustomed clearness and precision. A magistrate had on appeal made a municipal assessment. Prohibition was sought both against the municipality and the magistrate. The Chief Justice held (among other grounds) that prohibition would not lie against either, saying (6): - * A municipality is not a tribunal, and a prohibiiton only issues to a Court or pretended Court which assumes to exercise judicial functions. To the magistrate it cannot go, because he has nothing further to do, the enforcement of the assessment not depending on the order made by him, the municipality having the power indepen- dently of him to enforce the assessment or not."" In Ex parte Bennett (7) the Supreme Court of New South Wales, in a case where a local Land Board made a certain finding on which the Minister could act, held that the Board, having dealt with the matter, had nothing further to do, and, the Minister not being a judicial tribunal, prohibition would not lie. In Ex parte Fangett (8) Parker C.J. dealt with a case where a magistrate had made an order to estreat recognizances, which order was attacked by prohibition for want of jurisdiction. But the order had passed into a judgment of the Supreme Court, and there was nothing which the magistrate could do. Prohibition

(2) 2Q.B. (3) 6 App. Cas., particularly at pp. 436, 444, 448, 449, 451, 457. (4) 71 U.S., 158.

'Those are our reasons for holding that this application should be lismissed. But inasmuch as the view which according to law must ptevail is to the contrary, we have to accept that as the decision of Court, and state our agreement that the ninth ground is estab- ed, namely, that in actual fact the Coke Tribunal neither made purported to make the award promulgated, and as to which it is sought to be prohibited.

• Hicarns J. The rule nisi for prohibition has been obtained inst the Chairman and the other eight members of a Special [ribunal, which the Governor-General purported to appoint under c. 13 of the Industrial Peace Act 1920, " for the prevention or ement of any industrial dispute or disputes which have arisen which may arise in the coke industry." The Act was assented to 13th September. The appointment of the Tribunal was ed in the Commonwealth Gazette of 8th October, but the of the appointment is not mentioned. In the Gazette of 25th er there is announced an award of 15th October, containing he words which have been set out in the judgment of the Chief Justice. There are twelve grounds stated in the rule and urged by the Company as justifying a prohibition ; but the Court has required respondents to confine themselves in argument for the present grounds 9 and 11. If the award is invalid on any ground, that is

h. It is to be clearly understood, however, that the Court

not overrule any of the other grounds. These grounds, 9 and are: "(9) that the alleged award is not the act of the said Coke Industry Special Tribunal and does not purport to be such;

try." I coneur with what the Chief Justice has said to the binding under the Act on employers of coke workers in New

South Wales, including this Company. I am also of opinion that e award purports to prescribe a common rule for employers and

held inapplicable either as to the magistrate or the complainant. 4- C. or A.

H.C. or A. extend beyond New South Wales, and that it is for this reason also 1920.

invalid (Australian Boot Trade Employees' Federation v. Whybrow

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 ;

ally and appropriately, for a prohibition against " further ing upon the award." What further proceeding is contem- ted here by the Tribunal? What proceeding is even possible ? the case of Courts which can execute their judgments, a writ of hibition may be claimed at any time before the execution is

omplete, but not afterwards (Heyworth v. London Corporation (1) ; Hall v. Norwood (2); Yates v. Palmer (3); Inre Poe (4); In re Denton y. Marshall (5) ). In Jones v. Owen (6) the rule for prohibition was

v. Cosens (7) the costs had not been paid; in Marsden v. dle (8) there had been no levy. The dictum of Alderson B. in v. Humby (9) that prohibition will lie even after execution not necessary to the decision (for there had been no execution), it probably refers to the case of execution not having been leted by full satisfaction. In Jones v. Owen the rule was de absolute after complete execution, but the rule had been ined before complete execution by possession given, and the e had to insert a clause in the rule commanding restitution of ion. The power of the Judge to insert such a clause has been ibted (In re Denton v. Marshall). There has been no case which supports the argument that prohibition lies against a for mere " jactitation " of its judgment (or award), or for e to admit its error in doing what it had already done. It is e that the rule is also directed against the Australasian Coal and

le Employees' Federation, the union which obtained the award ; and it is said that the union might proceed in the Police Court for 4 penalty for breach of the award (secs. 38 (d), sec. 44 of Conciliation

(6) 18L.J. Q.B.,8. (7) 1 T.R., 552. (8) 23 LJ. Q.B., 263. (9) 3M. & W., 120.

om ething still to be done by it, unless it be " further proceeding" H- ©. or A.

~ Tue Krxe e. HiBBie ; EX PARTE BROKEN Hut Pro- PRIETARY Co. Lap.

Act; sec. 16 of Industrial Peace Act 1920). But the Federation does not propose to proceed further before the Tribunal. Pro- hibitions are granted against a tribunal exercising judicial functions, and against those who move the tribunal to act. The party interested in urging the tribunal to act has to be heard, because the tribunal itself has no pecuniary or material interest in acting as moved, and may not appear against the rule. There is now no judicial proceeding to take place before the tribunal, and there is nothing to prohibit as regards any action, or proposed action, of the tribunal, (See Chabot v. Morpeth (1).)

This opinion, however, as to prohibition being inapplicable after award, does not seem to be consistent with prohibitions which have been granted as to awards made by the Court of Conciliation ; but this objection to prohibition does not seem to have been pressed, or, in some cases, even taken by counsel in the arguments (see per Gavan Duffy and Rich JJ. in the Builders' Labourers' Case (2) ). At the time that these prohibitions were granted, however, it had not yet been established that the Court of Conciliation has no power to enforce its own awards (see Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. (3)). Moreover, the provisions of sec. 39 of the Conciliation Act do not appear to have been brought to the attention of the Full Court. I was not a member of the Full Court that heard the applications for prohibition, and I have often wondered how the difficulty was surmounted - the difficulty that the Court of Conciliation did not propose to proceed any further. As it appears clearly now that the Tribunal does not propose to proceed any further, I feel myself free to treat the objections as fatal. -

In my opinion, although the award is invalid, prohibition must be refused. But should proceedings be taken for a penalty before a Court of summary jurisdiction, it would be apparent on its face that the award is not the award of the Tribunal, and that therefore sec. 28 (1) of the Industrial Peace Act does not cover the award with

(1) 15 Q.B., 446. (2) 18 C.L.R., at p. 253. (3) 25 C.L.R., 434.

be supported as an award of the Special Tribunal appointed by the Governor-General for the prevention and settlement of disputes hich had arisen or which might arise in the coke industry. And I also satisfied that this Tribunal never made any award. The s for this conclusion are sufficiently set forth in the opinions 'the Chief Justice and my learned brethren.

'Tt is true that the Chairman (Mr. Charles Hibble) assumed to xercise the powers and authorities of the Special Tribunal under e mistaken construction of the Industrial Peace Act 1920, but hh exercise of power was without any lawful warrant. The pro- on contained in sec. 28 (1) of the Act, whatever its effect may be, t prevent a person challenging a determination which is not, fact, the award or order of a Special Tribunal.

number of other grounds were raised in support of the order for prohibition, but, in view of the decision of the Court on the already mentioned, it becomes unnecessary to express any ion upon them.

'he question whether prohibition can issue after an award has en made, whether by a Special Tribunal or by some person purport- exercise the powers of a Special Tribunal, though of little ance in this case, is a matter which calls for decision.

'he Constitution, see. 75, provides that " Inall matters... in writ of . . . prohibition . . . is sought against an of the Commonwealth the High Court shall have original iction." In the Tramways Case [No. 1] (1) it was held that

Commonwealth within the meaning of sec. 75 of the Constitu- on, and that he exercised powers of a judicial or quasi-judicial character. There seems no reason to doubt that the members of ial Tribunal appointed under the Act No. 21 of 1920 are in e same position as the President and Deputy President of the of Conciliation and Arbitration.

Starke J. The document dated 15th October 1920 cannot H. ©. oF A.

Tue Krxe v. Hiesu Ex P. Bro. Hitt Pro- PRIETARY Co. Lrp.

HIBsBieE ; EX PARTE BROKEN Hitt Pro- PRIETARY Co. Lrp.

The writ of prohibition was issued at common law to keep the Judges of inferior Courts within their jurisdiction, but the remedy

; was also applicable to restrain persons claiming to exercise powers of

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),

v. Clerke (1) and Leman v. Goulty (2) are further H.C. oF A. trations in support of the same view. In this Court the 1 ractice has been in accordance with these decisions (Builders' Tux Kruse

Labourers' Case (3) ). 1 also refer to the remarks of two illustrious yysure: ges: - Holt C.J., in Parker v. Clerke said that " it is never Ex Panne

too late to move B. R. for a prohibition where the spiritual Hm Court had no original jurisdiction." Brett L.J., as he then was, '¢ n R. v. Local Government Board (4), said: "My view of the. ooaeg, er of prohibition at the present day is that the Court d not be chary of exercising it, and that wherever the Legis- we entrusts td any body of persons other than the superior

s the power of imposing an obligation upon individuals, the

n T have not overlooked the comments on this opinion in Zn 're Local Government Board ; Ex parte Kingstown Commissioners (5). Tn the present case the award of Mr. Hibble has not been executed. is, to use the words of Lush J. in Serjeant v. Dale (6), " still in eration," and if not stayed it may lead to further proceedings, if not before the Special Tribunal, at all events before other tribunals. The provisions of the award itself purport to reserve power to he usurping authority to vary and rescind it. "The object of prohibitions in general is, the preservation of the . . . ease and quiet of the subject. For it is the wisdom and policy of the law, to suppose both best preserved when everything runs in its right nnel, according to the original jurisdiction of every Court ; for by the same reason that one Court might be allowed to encroach, another might; which could produce nothing but confusion and disorder in the administration of justice": Bacon's Abridgment, tit, Prohibition, vol. v1., p. 564. It is true that the award in

• the present case is a nullity, but what if an award were in fact made by a Special Tribunal in excess of its jurisdiction? It was said in argument that it would be too late to exercise the power

(1) 3 Salk., 87. (4) 10 Q.B.D., 309, at p. 321. (2) 3 TR, 3. (5) 16 L.R. Ir., 150, at p. 159. (3) 18 C.L.R., 224. (6) 2Q.B.D., at p. 568.

to grant a prohibition under sec. 75 of the Constitution, and that sec. 28 of the Industrial Peace Act 1920 prevented the award being then challenged by prohibition or otherwise in any other Court on any account whatever. I say nothing as to the true limits of see. 28, but a decision refusing prohibition im this case makes such an argument possible, and if it were ultimately sue- cessful nothing but "confusion and disorder in the administration of justice " could result.

In my opinion prohibition should issue to Mr. Charles Hibble restraining him from further proceeding on the award of 15th October 1920. It should not issue to the other members of the Special Tribunal, for they have made no award nor are they parties to Mr. Hibble's award.

Finally, I express my concurrence in the order proposed by the Chief Justice on the motion made by the Broken Hill Proprietary Co. Ltd. under sec. 27 of the Industrial Peace Act 1920,

Order absolute for prohibition against respondent Charles Hibble.

Solicitors for the prosecutor, Minter, Simpson & Co., for Moule, Hamilton & Kiddle, Melbourne.

Solicitors for the respondent organization, Cecil A. Coghlan & Co.

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