R v Kelly; Victorian Chamber of Manufactures, Ex p - [1953] HCA 30 - HCA 1953 case summary — Zoe

CTHHCA

R v Kelly; Victorian Chamber of Manufactures, Ex p

[1953] HCA 30

High Court of Australia|1953-07-01|Before: Taylor JJ, Wright J, Foster J

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Source facts

Court

High Court of Australia

Decision date

1953-07-01

Before

Taylor JJ, Wright J, Foster J

Source

Original judgment source is linked above.

Judgment (65 paragraphs)

[1]

High Court of Australia Williams A.C.J. Webb, Fullagar, Kitto and Taylor JJ. R v Kelly; Victorian Chamber of Manufactures, Ex p [1953] HCA 30

[2]

We have before us the returns of two orders nisi for writs of mandamus, the one addressed to five judges and the other to six judges of the Commonwealth Court of Conciliation and Arbitration commanding them and each of them to hear and determine according to law the application made to that court pursuant to the summons issued thereout on 24th June 1952 in proceedings No. 387 of 1952.

[3]

The facts can be shortly stated. From 16th September, 1952, to 30th April, 1953, the six judges had been hearing certain proceedings commenced by the prosecutors and other organizations of employers by the above summons to vary an award made on 16th January, 1952, known as the "Metal Trades Award". These organizations and the organizations of employees who are respondents in the proceedings before us were all bound by this award. The orders asked for in the summons are orders varying this award in important respects, especially with respect to the calculation of the basic wage for male and female employees and increasing the standard hours of work from forty to fourty-four hours. The summons first came on for hearing before the Court on 5th August, 1952, when Wright J. was a member of the Bench. Certain interlocutory and other proceedings took place on that occasion and on other dates prior to 16th September, 1952, when he was still present as a member of the court. But the actual hearing of the dispute and the taking of evidence did not commence until 16th September, 1952. The hearing continued on fifty-nine days between that date and 30th April, 1953. The court throughout consisted of the Chief Judge, Sir Raymond Kelly, and Justices Foster, Kirby, Dunphy, McIntyre and Sir Edward Morgan.

[14]

It might be possible to imply this limitation if Mr. Eggleston was right in submitting that an individual duty is imposed on each member of the court which commences to hear a dispute, except so far as he is relieved of this duty by the Act, to remain on the court until the hearing is completed and the dispute is determined by an order or award. The scheme of the Conciliation and Arbitration Act is that disputes shall be settled if possible by an agreement arrived at by conciliation. But if no agreement is reached disputes shall be settled by an award or order made by the court or a conciliation commissioner as the case may be. Section 38 of the Act provides that, if no agreement between the parties as to the whole of the dispute is arrived at the court or conciliation commissioner shall, by an order or award, determine the dispute, or (if an agreement has been arrived at as to a part of the dispute) so much of the dispute as is not settled by the agreement. But no such duty is imposed on the judges as individuals but on the court as a whole and the court has jurisdiction to perform this duty provided it consists of at least three judges. But for sub-s. (5) of s. 24 I would be inclined to think the operation of sub-s. (4) should be confined to a vacancy on a court of three judges. It refers to one of the judges sitting as a member of the court hearing the dispute or appeal becoming unable to continue to sit or ceasing to be a judge. It is possible to read this provision as operating on more than one occasion in the case of a court originally comprised of four or more judges where in the course of the hearing more than one judge becomes unable to continue to sit or ceases to be a judge. But the sub-section in terms refers to one of the judges and appears to contemplate only one vacancy, and therefore to a vacancy occurring on a court of three judges. But sub-s. (5) says that an order or award shall not be made under the last preceding sub-section unless at least two judges concur in the making of the order or award. These words appear to contemplate that sub-s. (4) could apply to cases where a vacancy occurs on a court of more than three judges, although I doubt whether the words "at least" are intended to do more than emphasize the necessity, where the court consists of two judges, for these two judges to concur before they can make an order or award. Be that as it may, sub-s. (4) has nothing to say about voluntary retirements where at least three judges still remain on the court. It would seem to be intended as an enlargement of s. 4 of the Conciliation and Arbitration Act 1950 which was limited to the case where one of a court of three judges became unable to sit on account of illness. This section, though apparently passed to meet a special emergency, would appear to have been based on the view that such a provision was only necessary to give the court jurisdiction despite a vacancy where the court consisted of three judges.

[19]

There is to my mind a real difference between continuing and completing a part heard hearing and commencing a hearing de novo, even where the whole of the materials in the previous hearing can be put to immediate use on the new hearing. The five judges did decline to continue the present hearing but they have not refused to determine the dispute. All they have decided to do is to discontinue the present hearing and consider commencing the hearing of the dispute de novo or in other words adopting a different procedure to reach the same end. Section 39 of the Conciliation and Arbitration Act confers the widest procedural discretion on the court. It provides that the procedure of the court shall, subject to the Act and the regulations, be within the discretion of the court; that the court shall not be bound to act in a formal manner and shall not be bound by any rules of evidence, but may inform its mind on any matter in such manner as it thinks just; and that the court shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. In these circumstances I do not think it could be said that the five judges have declined jurisdiction because, on a mistaken view of s. 24 (4), they have decided to commence the hearing de novo and not to continue the existing hearing. This is a procedural decision and not a refusal to exercise jurisdiction. The prosecutors would only be entitled to a mandamus if there was a duty imposed upon the court to determine the dispute by continuing the existing hearing. I am unable to find any such duty. In reaching this conclusion I have been assisted by the authorities referred to by Kitto J. and Taylor J. during the hearing and cited by Kitto J. in his judgment. R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1] is not an authority to the contrary, for in that case the court had refused to determine the application before it. In the present case the court has decided, not that it will not determine the dispute at all, but only that it has no power to determine it by a particular procedure. The procedure it proposed to adopt is in my opinion not beyond its jurisdiction, although less convenient than continuing the existing hearing. Section 24 (6) provides for a new hearing in particular circumstances and expressly provides that on that hearing the court shall have regard to the evidence given, the arguments adduced and the judgments delivered during the previous hearing. But again the maxim expressum facit cessare tacitum could not be invoked to import the negative and imply a limitation upon the wide procedural powers conferred upon the court by s. 39 so that it would only be in those particular circumstances that the court could discontinue an existing hearing and commence de novo.

[24]

But even if his Honour did not have a valid reason for withdrawing from the hearing of the prosecutors' claim there was, in my opinion, nothing in the law to prevent the remaining judges of the court from continuing the hearing. I think that Parliament in enacting s. 24 did not contemplate and so did not deal with the situation that arises when a judge declines, without sufficient cause, to take further part in the hearing of a claim. Section 24 provides: "(1) Subject to this Act, the jurisdiction of the Court shall be exercised by not less than three Judges. (2) The jurisdiction of the Court may be exercised by a single Judge with respect to - (a) the interpretation of an order or award; (b) the granting of leave to appeal to the Court from an act or decision of the Registrar; (c) the power referred to in paragraph (f) of sub-section (1) of section twenty-nine of this Act; (d) an application under section seventy-one of this Act; (e) a question or dispute arising under section eighty-three a of this Act; or (f) a prescribed matter of practice or procedure. (3) The Court constituted by one or more Judges may sit and exercise the jurisdiction of the Court, whether under this Act or otherwise, notwithstanding that the Court constituted by one or more other Judges is at the same time sitting and exercising the jurisdiction of the Court, whether under this Act or otherwise. (4) Where the hearing of an industrial dispute or of an appeal under section thirty-one a of this Act has been commenced before the Court but, before an order or award has been made determining the dispute or appeal, one of the Judges sitting as a member of the Court hearing the dispute or appeal has become unable to continue to sit or has ceased to be a Judge, the Court constituted by the remaining Judges has jurisdiction to complete the hearing and make an order or award determining the dispute or appeal in whole or in part. (5) An order or award shall not be made under the last preceding sub-section unless at least two Judges concur in the making of the order or award. (6) If, by reason of the last preceding sub-section, an order or award is not made determining the dispute or appeal, or an order or award is made determining the dispute or appeal in part, the Court constituted by not less than three Judges shall hear and determine the dispute or appeal, or so much of the dispute or appeal as has not been determined, and, in the hearing of the dispute or appeal, or of so much of the dispute or appeal as has not been determined, shall have regard to the evidence given, the arguments adduced and the judgments delivered during the previous hearing. (7) Subject to sub-sections (4) and (5) of this section, where the members of the Court are divided in opinion on a question, the question shall be decided according to the decision of the majority, if there is a majority, but if the members of the Court are equally divided in opinion, the question shall be decided according to the opinion of the Chief Judge, or, if the Chief Judge is not a member of the Court or there is a vacancy in the office of Chief Judge, according to the opinion of the next senior Judge present".

[34]

The course supported by Mr. Eggleston should clearly be considered first, because, if it were proper to adopt that course, no question as to whether s. 24 (4) has the effect of depriving the remaining five judges of jurisdiction would arise. That course involves in substance, though probably not as a matter of correct form, a direction to Foster J. to continue to sit as a member of the court. Logically, therefore, the first question arising in these proceedings was whether the "withdrawal" of Foster J. involved any dereliction of legal duty on his Honour's part. If it did, it would be the duty of this Court to direct the issue of a writ of mandamus accordingly. The matter was (for fairly obvious forensic reasons) not argued on this logical basis, but it is of no consequence that it was not so argued. For it seems to me to be clear that this Court cannot, on the material before it, give any such direction to Foster J. A member of any such body or tribunal as the Court of Conciliation and Arbitration must have a degree of discretion as to whether he will sit or continue to sit on any inquiry which the Court may be called upon to undertake. The material before this Court is somewhat scanty, and the reasons for the "withdrawal" of Foster J. were not very fully debated before us. But, although an affirmative finding that he was "unable" to continue sitting within the meaning of s. 24 seems to me to be impossible, "inability" so to continue is not the only possible justification for declining to continue to sit. All we really know is that the reason given by his Honour is that he "cannot satisfactorily do the work which he has undertaken in connection with the maritime industries as a single judge exercising the jurisdiction of the court pursuant to the Navigation Act 1912-1952, and as well continue to sit in" the case which we have now under consideration. It may be, as Mr. Eggleston argued, that, the hearing having commenced and continued for a very substantial period, there would be, if nothing more appeared, a duty resting on Foster J. to continue to sit and to take part in arriving at a decision. I express no opinion on this point. But an opinion, entertained in good faith, that a choice was necessitated between the performance of that duty and the performance of another duty, followed by a choice made in good faith between the two alternatives, provide, in my opinion, a prima facie justification even if there would otherwise be a breach of duty. I doubt indeed whether a court having jurisdiction to grant the prerogative writs, if it were once satisfied that such an opinion existed and that such a choice had been made, should or could inquire further into the position. It might conceivably inquire further if it were seen that the result of the "withdrawal" would be that the part-heard proceeding could not be determined or must be commenced de novo. But neither of those circumstances exists in the present case.

[45]

I do not share with the learned judges of the Arbitration Court the view that the hearing originally begun by six judges was terminated by the withdrawal of one of them. The argument principally relied upon for that result is that an implication is to be found in sub-s. (4) of s. 24 to the effect that a hearing cannot validly be continued after one of the judges who constituted the court when the hearing began has ceased to take part, except only where that judge has become unable to continue to sit or has ceased to be a judge. Sub-section (4), however, does not convey to my mind the impression that the draftsman had the intention, antecedently improbable as it is, to define exhaustively the circumstances in which some only of the judges who have commenced a hearing may carry it to completion after others have ceased to participate. The main purpose of the sub-section, clearly enough, is to be found in its application to a court which, whatever the number of judges who commenced the hearing, has been reduced in number to three and then suffers a further reduction. In such a case it operates to qualify sub-s. (1), subject to the provision made by sub-s. (5). But in its application to a court of which more than two members remain, its only effect, I think, is to make explicit what is implicit in sub-s. (1); and it appears to me to do so for the particular cases which it describes, not because they are the only cases in which the legislature intended that a court reduced in number should be entitled to continue a hearing, but because they were the only cases which suggested themselves as at all likely to occur. If, in the present case, the five remaining judges had proceeded to hear the application without any question as to their power having been raised, and had reached the point of making orders or awards in determination thereof, it seems to me impossible to infer from s. 24 (4), or to hold on any other ground, that despite the authority which s. 24 (1) gives to not less than three judges to exercise the jurisdiction of the court those five judges would be precluded from determining the disputes by the circumstance that a sixth judge had sat with them during a portion only of the hearing. Apart from any express or implied statutory provision to the contrary, a court reduced in number during a hearing but still comprising a quorum may proceed to judgment: R. v. Thomas; Ex parte O'Hare [1] . I cannot read s. 24 (4) as displacing the prima facie rule.

[46]

But, even so, I am of opinion that there is here no case for a writ of mandamus. The duty of the Arbitration Court, as I have said, is to determine the applications which are before it; and the five remaining judges, far from refusing to perform this duty, are actually engaged in considering how they may best go about it. They have stated in perfectly plain terms that they have in mind to determine the applications after a hearing in which the past proceedings will be treated as having taken place in that hearing. The prosecutors contend, however, that to treat the incomplete hearing as technically at an end and embark upon a new hearing, even if the past proceedings are all taken as part of the new hearing, will amount to a refusal to perform a legal duty, namely a duty to continue the old hearing to the point of final decision. In my opinion this contention is based on a misconception. Subject to the provisions of the Act, the Arbitration Court is obliged, of course, to conduct a full hearing of the application, giving the parties a reasonable opportunity to present their respective cases. But the manner in which the opportunity is given is entirely a matter for that court to regulate as it thinks right in the exercise of its statutory discretion. If the Arbitration Court, after an incomplete hearing, or even after a completed hearing but before a decision has been given, decides that there should be a fresh hearing before the court constituted in the same or a different manner, so long as it remains true to say that the court is bona fide endeavouring to reach a determination of the dispute by means of a procedure which it considers expedient to serve the end in view it seems to me that the course so adopted cannot be treated by this Court as justifying intervention by mandamus: cf. Ex parte Evans [1] ; R. v. Hertfordshire Justices; Ex parte Larsen [2] ; Fussell v. Somerset Licensing Committee [3] . I cannot see that it is anything to the point that the decision to re-commence the case has been made for the reason that the judges who are ready and willing to determine the dispute have formed a view, even an erroneous view, that to treat the future hearing of the matter as a continuation of the former hearing is not, or may not be, a valid exercise of their jurisdiction. Their statutory power to regulate their proceedings as their discretion dictates must, I think, include a power to stop one hearing of a matter and commence a new one, at least for any reason by which a tribunal acting in a proper manner could reasonably be actuated in attempting bona fide to perform the duty upon which their Honours are engaged. It would clearly not be right to say that the view which the five judges have announced in this case was one which could not reasonably be held, or that in forming and giving effect to it they were not bona fide endeavouring to perform their statutory function. That being so, by granting mandamus to correct what we conceive to be an erroneous view as to the legal significance of the withdrawal of the sixth judge we would be interfering in the conduct of the case before the Arbitration Court in an aspect with which that Court is entitled to deal as it sees fit. We would be doing what was condemned in R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [4] , as entering upon an examination of "the regularity or irregularity of the manner in which the tribunal has proceeded". For although a choice between possible courses has been made because of the view taken upon a question of law, it remains true that it is only the manner in which the Arbitration Court should proceed to a decision that has been in question.

[55]

At this stage there was no provision in the Act which enabled a court originally constituted by three judges for the hearing of a matter within its jurisdiction to continue the hearing in the absence of one of its members. The withdrawal of one member in such circumstances would at that time have meant that the court was no longer properly constituted, and, therefore, unable to exercise the jurisdiction conferred by the Act upon the court. But, there can be no doubt that, at that time, a court originally constituted by more than three judges might, in the absence of one or more of its members, continue to exercise the jurisdiction of the court in any particular matter provided that, of the original members of the court, at least three remained to constitute the court in accordance with sub-s. (1). In 1950 steps were taken to avoid the delay and inconvenience which would follow upon the absence of one member of a court originally constituted by three judges. To deal with such a situation arising in hearings commenced before the Conciliation and Arbitration Act 1950 came into operation, s. 4 of that Act was enacted in the following terms: "4. (1) Where the hearing of an industrial dispute was, before the commencement of this Act, commenced before three Judges of the Commonwealth Court of Conciliation and Arbitration but, before an order or award has been made determining the dispute, one of those Judges has become unable, by reason of illness, to continue to sit as a member of the Court hearing the dispute, the Court constituted by the other two Judges shall have jurisdiction to complete the hearing and to make an order or award determining the dispute in whole or in part. (2) An order or award shall not be made under the last preceding sub-section unless both Judges concur in the making of the order or award. (3) If, by reason of the last preceding sub-section, an order or award is not made determining the dispute, or an order or award is made determining the dispute in part, the Court, constituted by not less than three Judges, shall hear and determine the dispute, or so much of the dispute as has not been determined, and, in the hearing of the dispute, or of so much of the dispute as has not been determined, shall have regard to the evidence given, the arguments adduced and the judgments delivered during the previous hearing".

[60]

This conclusion, however, is by no means fatal to the proposition that s. 24 (4) does not preclude the court, as constituted by the five respondent judges, from continuing the hearing of the proceedings before them. As I have already pointed out, upon the legislation as it stood both in 1947 and in 1950, the court could be properly constituted by three judges of the court and a court so constituted might have continued the hearing of any matter before it, notwithstanding the fact that the hearing had originally commenced before a greater number of judges. This proposition was disputed by counsel who appeared for some of the industrial organizations which were served with notice of these applications and reliance was placed upon the principle which applies where a dispute is committed to a decision of a number of specified arbitrators. But, in my opinion, this principle has no application to cases where a court is invested with the power to perform specified functions and the only requirement for its proper constitution is that it shall be constituted by not less than a specified number of judges. In the one case the function is committed to specified arbitrators, whilst in the other the power is reposed in the court constituted in accordance with minimum legal requirements. In my opinion, s. 24 (4) does not, in any way material to the present case, alter the legal position as it stood before the enactment of that section in 1952. Upon a review of the legislation, it is clear that the primary purpose of s. 24 (4) was to permit the Court of Conciliation and Arbitration to be constituted, in certain circumstances, by less than three judges, notwithstanding the provisions of s. 24 (1), and not to require the court to be constituted by more than three judges either when one of more than three judges who have commenced the hearing of a matter has become unable to continue to sit or has ceased to be a judge. But even if the effect of the language of sub-s. (4) is to require the court to be constituted by more than three judges in cases where a hearing has been commenced before five or more judges and one of them has become unable to sit, or, has ceased to be a judge, the sub-section, in terms, has no application to the situation created where one of such judges has withdrawn from the hearing on some ground other than that referred to in the sub-section.

[61]

It was argued, however, that the terms of sub-s. (4) were exclusive and by necessary implication precluded this latter conclusion. In support of this contention reliance was placed upon the observations of Dixon J. in R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers [1] . But the principle applied in that case is not in point. In that case the court was concerned with two legislative provisions contained in the same statute and, in the result, held that the presence of a particular provision in the statute precluded the conclusion that a provision couched in general terms and capable of application to an infinite variety of circumstances dealt also with the particular matter expressly dealt with by the particular provision. That this was the basis of the principle upon which the court acted is emphasized by the quotation in that case of a passage from a joint judgment to which Dixon C.J. was a party, in Anthony Hordern and Sons Ltd. v. Amalgamated Clothing & Allied Trades Union of Australia [2] . In that case the Court was concerned also with the construction of provisions of the Commonwealth Conciliation and Arbitration Act 1904-1930 and the judgment proceeds: "When the Legislature explicitly gives a power by particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power" [3] . No question arises in these cases whether the general provision concerning the constitution of the court, contained in s. 24 (1) is, by reason of the provisions of sub-s. (4) subject to some modification; the critical question is whether by necessary implication an operation should be given to the latter sub-section which is not justified upon its expressed terms alone. It does not, in terms, provide that, if one of more than three judges refuses to sit further in a case, the remaining judges may not continue the hearing. Nor, having in mind the primary purpose for which the sub-section was so obviously designed to deal, should any such meaning be attributed to it. It may be that the draftsman did not have in mind the possibility of a judge refusing or declining to sit on grounds other than inability to continue but whatever the explanation for the present form of the sub-section may be, I am unable to find in it any feature which necessarily requires its literal meaning to be extended by implication in the manner suggested. In all the circumstances I am of the opinion that the provisions of sub-s. (4) do not require the court to be constituted by more than three judges in cases where a judge has withdrawn himself from a hearing on a ground not specified by that sub-section.