R v Hickman [1945] HCA 53

[1945] HCA 53

High Court of Australia|1945-07-01

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Source facts

Court

High Court of Australia

Decision date

1945-07-01

Source

Original judgment source is linked above.

Judgment (123 paragraphs)

[1]

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[2]

[16]

Evidence before the Board showed that the partnership was engaged in the business of carrying coal, cattle, lime, metal, sleepers, shale and other commodities. Under a contract with Clinton's Nattai Collieries Pty. Ltd., a company which owned and operated the Nattai-Bulli Colliery situated at Burragorang Valley, N.S.W., the partnership and others carted the daily output of the colliery from the colliery by motor trucks to the depot of the partnership at Narellan, some twenty-three miles from the colliery. When the coal arrived at the depot, it was dealt with by the partnership according to instructions given daily by Joseph Scott, coal agent, the selling agent for the colliery company. It was loaded into railway trucks in some cases in the condition in which it arrived, and in other cases after being graded was then despatched by rail to consignees nominated by Scott. In some instances, coal was not taken from the colliery to the depot but was driven direct to consignees at Liverpool and other places in and around the Sydney metropolitan. area, In carrying out its contract with the colliery company, the partnership employed approximately twenty truck drivers to drive trucks, owned and maintained by the partnership, between the colliery and the depot. Under instructions from the partnership, all but a few of the truck drivers did not enter the colliery premises but, as instructed, parked their empty trucks at a place outside those premises at which place the trucks were taken over by employees of the colliery company, driven by those employees to coal bins, loaded and then driven back to the said place outside the colliery premises where they were handed over to the truck drivers. The truck drivers were not exclusively engaged in carting coal from the colliery to the depot but at various times each of them was employed carting cattle, lime, metal, sleepers, shale and other commodities. All the persons engaged in despatching or grading coal from the depot at Narellan were employees of the partnership. The partner- ship under contract with the colliery company received from that company the sum of sixpence per ton on all coal passing through the depot for the service rendered to the company in grading.

[36]

The order of the Local Reference Board was made upon an application made on behalf of the Federated Mining Mechanics' Association of Australasia, an industrial union of employees. The Board acted under reg. 14 (1) (a), which provides that, subject to the Regulations, a Local Reference Board shall have power to settle disputes as to any local matters likely to affect the amicable relations of employers and employees in the coal mining industry. Regulation 2 provides that the Regulations " shall apply to industrial matters in relation to the Coal Mining Industry." These provisions are, in my opinion, plainly provisions which prescribe, and, in pre- scribing, limit, the jurisdiction of the Board. An authority with a limited jurisdiction cannot give itself jurisdiction by a wrong determination as to the existence of a fact wpon which its jurisdiction depends, or by placing a wrong construction upon a statute upon which its jurisdiction depends, unless by a valid provision the authority is given power to act upon its' own opinion in relation to the existence of the fact or in relation to the construction of the statute. This principle has frequently been applied in the case of the Arbitration Court, and has also been applied in the case of other industrial authorities: See e.g. R. v. Foster; Ex parte Crown Crystal Glass Co. Pty. Ltd. (1) and R. v. Connell ; Ex parte Hetton Bellbird Collieries Ltd. (2). The jurisdiction of this Court which is invoked by the prosecutors depends upon s. 75 (v.) of the Commonwealth Constitution, which provides that the Court shall have original jurisdiction in all matters, inter alia, in which a writ of prohibition is sought against an officer of the Commonwealth. The members of the Board appointed under the Regulations are officers of the Com- monwealth. Prima facie, therefore, the Court has jurisdiction to grant a writ of prohibition against them if they exceed their juris- diction. Regulation 17 provides, inter alia, that a decision of a Local Reference Board " shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, man- damus or injunction, in any court on any account whatever." Such a provision, it is settled, cannot exclude the jurisdiction conferred. upon this Court by s. 75 (v.) of the Constitution: See R. v. Common- wealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. (3). That provision (s. 75 (v.) ) is not limited to the grant of prohibition upon constitutional grounds. It extends also to the

[102]

I prefer to call them, contained in the orders under consideration do not assume to impose any continuing liabilities upon the employers named therein, and that they fall outside the principles upon which this Court acts in deciding whether a writ of prohibition may be issued in respect of a judicial act. Those principles were settled by the judgments of Know C.J., Duffy J. and Starke J. in the case of R. v. Hibble; Ex parte Broken Hill Pty. Co. Lid. (1). The Court in that case was evenly divided. But the Court has since applied those principles in the decision of a number of cases: See R. v. Connell ; Ex parte Hetton Bellbird Collieries Ltd. (2) and also R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (3); R. v. Foster; Ex parte Crown Crystal Glass Co. Pty. Ltd. (4), though there no formal order had been drawn up and perhaps that remained to be done. These decisions, I think, rest upon the view expressed by Starke J., as follows : - 'Tt" (the award) "is, to use the words of Lush J. in Serjeant v. Dale (5), ' still in operation', and if not stayed it may lead to further proceedings, if not before the Special Tribunal, at all events before other tribunals" (6). It is open to question how far this view is consistent with the statement made by Lord Maugham for the Privy Council in Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust (7), where his Lordship says : - " On the other hand, there must remain some- thing to which prohibition can apply, some act which the respondents if not prohibited may do in excess of their jurisdiction, including any act, not merely ministerial, which may be done by them in carrying into effect any quasi-judicial order which they have wrongly made." But, although this statement was made after a full argument on the very point, including the citation of the chief authorities relied upon in the Hibble Case (1), it is in strictness an obiter dictum ; for their Lordships decided in the particular case that prohibition lay.