R v Kelly; Ex parte Commonwealth Public Service Clerical Association

High Court of Australia|1955-07-01|Before: Taylor JJ, Higgins J

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. R v Kelly; Ex parte Commonwealth Public Service Clerical Association [1955] HCA 20

The Court delivered the following written judgment: -

April 15 Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ.

We are now called upon to say whether the order nisi should be made absolute, and that involves two questions; first, whether the case is within s. 19 and second, if it is not, whether the remedy of mandamus lies.

The first of these questions depends entirely on the terms of the section. Those terms are appropriate to describe the appearance before a tribunal of counsel or solicitor in his professional capacity on behalf of a client. There is no reason to suppose that it was meant to extend beyond that nor to give the language the provision uses any wider application. Clearly if a natural person who is a party to a proceeding under the Act is a barrister or a solicitor, s. 19 has nothing to say against his being heard. A corporation must proceed by the agency of natural persons and an organization not represented by counsel cannot appear before a tribunal except by some servant or agent. When it appears by its proper officer he acts as its servant, and even if he is a barrister or a solicitor he does not represent the organization in virtue of that status. The organization is not his client and his duties as well as his authorities are of a different description.

Section 19 does not vary materially from s. 12 of the Arbitration (Public Service) Act 1911, the language of which was taken from the last words of s. 27 of the Commonwealth Conciliation and Arbitration Act 1904. That section began by conferring a positive right upon an organization to be represented by a member or officer and upon any other party to be represented by an employee. Then followed the prohibition. In Waterside Workers Federation v. Commonwealth Steamship Owners' Association [1] , Higgins J. as President of the Arbitration Court construed the words of prohibition as not excluding from the operation of the earlier or positive part of the section an officer or employee because he was qualified as a barrister or solicitor. That means that the words of prohibition referred only to representation by counsel or solicitor in his professional capacity. At the same time his Honour made it clear that the relation of the person who is a barrister or solicitor to the party whom he represented before the court as officer or employee must be in truth and reality that of an officer or employee and that a colourable employment or appointment would not do.

Although s. 19 confers no positive right to representation by an officer, employee or other agent and is confined to prohibiting representation by counsel or solicitor there is no reason for giving the words any wider meaning or application. The consequence is that the learned Chief Judge acted upon a mistaken interpretation of s. 19 in refusing to allow Mr. Smith to represent the association.

The question whether mandamus is a remedy available to correct the error is not an easy one. It depends on the scope and operation of the Public Service Arbitration Act 1920-1952. How far do the considerations apply to it which led this Court to decide in Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ellis [2] , that under s. 46 of the Conciliation and Arbitration Act 1904-1952 the question who according to a proper application of the provision to the true facts might represent the party was left to the Arbitration Court to decide once for all? Until the enactment by Act No. 36 of 1952 of ss. 15A, 15B and 15C of the Public Service Arbitration Act "proceedings under" that Act meant proceedings before the Public Service Arbitrator, who is not constituted a court but is a quasi judicial administrative tribunal. How he is to proceed appears directly and by inference from ss. 12, 13, 14 and 15 of the Act. Section 12 (5) makes it clear enough that besides the organization claiming, the Board and a Minister, when the Board or a Minister object, are to be represented, if only in conference. But the Act appears to confer no rights to be heard upon other parties. It gives no right of audience to any particular description of representative. Section 19 stands therefore as a general prohibition, not as a denial or qualification of some right. In these circumstances a mandamus would not lie to the arbitrator because he had mistakenly applied s. 19 unless it could be shown that the case was one in which he was under a duty to hear the party and by the particular officer whom he had excluded or at least under a duty to consider according to law whether he would or should do so.

There is a provision protecting the Public Service Arbitrator's awards against attack by prohibition and other remedies: s. 20. But there is no attempt to establish the arbitrator as a court nor is there any other evidence of an intention to commit to him the determination of the meaning and application of s. 19, which after all is simply prohibitory or restrictive. Section 15C (1), (2) and (3) confer upon the Chief Judge a specific power or function under the Act. Because the power or function involves a "proceeding", s. 19 applies. It is not a proceeding before the Arbitration Court, but before the Chief Judge designated by the Act by reference to his office. Section 46 of the Conciliation and Arbitration Act 1904-1952 is therefore entirely inapplicable, whether or not it may apply, subject to s. 19, in a substantive appeal under s. 15C (4) of the Public Service Arbitration Act. It would seem, therefore, that the Chief Judge himself occupies in reference to s. 19 no different position from the arbitrator.

The considerations which, according to our decision in Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ellis [1] , govern the administration of s. 46 of the Conciliation and Arbitration Act 1904-1952 are therefore in the main inapplicable. It is clear that if there be a duty on the part of the Chief Judge to hear the association he must hear the general secretary on the association's behalf: R. v. Board of Appeal; Ex parte Kay [1] . But s. 19, as has already been pointed out, is simply prohibitory, and the source of the duty must be sought elsewhere. Section 15C (1), (2) and (3), for all that appears in the statute, might be administered upon an ex parte application. But by S.R. No. 55 of 1952, regs. 67C and 67H were inserted in the Conciliation and Arbitration Regulations. They require that a copy of the application shall be served upon the parties who appeared or were represented before the Public Service Arbitrator, and that the registrar shall give notice of the time and place fixed by the Chief Judge for the hearing of the application to the persons upon whom a copy of the application has been served. The implication would seem to be that on the hearing of the application such persons are to be considered as parties and are entitled to be heard accordingly. If this is the effect of the regulations there is an end of the matter, for the prosecutor association was represented before the arbitrator in the proceedings out of which the pending application to the Chief Judge arose. But even if the Chief Judge had power to hear the application ex parte, it was at least his duty, when the association appeared before him by its general secretary and sought to oppose the application as an organization adversely affected by it, to decide in accordance with law, and not in accordance with an erroneous interpretation of s. 19, whether or not he would hear the proposed opposition. The transcript of the proceedings which took place before him shows that he allowed other organizations to appear by officers to oppose the application, and no doubt he would have allowed Mr. Smith to appear for the prosecutor association but for the view which he entertained as to the meaning of s. 19.

(1954) 90 C.L.R. 55. 2. (1916) 22 C.L.R. 183.

From what has been said it follows that it is a case in which mandamus does lie. But no doubt it is unnecessary to make the order absolute, for the learned Chief Judge will doubtless give effect to the views we have expressed. We will therefore make no order at present.

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