Re Gray; Ex parte Marsh [1985] HCA 67

(a) the Industrial Registrar shall, notwithstanding section 160, forthwith refer the application to the Court and thereupon an inquiry shall be deemed to have been instituted;

(b) the Court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the application; and

It may be assumed that the application was made within the time prescribed. Sections 162 and 163 give the judge power to give directions and make interim orders (not including orders for the issue of subpoenas). Section 165(1) provides:

At an inquiry the Court shall inquire into and determine the question whether any irregularity has occurred in or in connection with the election, and such further questions concerning the conduct and results of the election as the Court thinks necessary. Section 165(2) gives the court power in the course of conducting an inquiry to make such orders as it thinks necessary for the purposes of the inquiry. Section 165(3) provides that "if the Court finds that an irregularity has occurred" the court may, subject to sub-s. (4), make a number of specified orders, including an order declaring the election void. Section 165(4) provides as follows: The Court shall not declare an election, or any step taken in or in connection with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities. Sub-sections (1) and (2) of s. 171 create a number of offences that may be committed in or in connexion with an election for an office; sub-s. (1) deals with offences directly connected with the ballot itself (such as interfering with the ballot paper or recording more than one vote) and sub-s. (2) forbids the use of threats or violence to induce (inter alia) support for or opposition to any candidate.

It will have been seen from these provisions that the jurisdiction of the court to hold an inquiry into an election for an office in a union depends on the reference by the Industrial Registrar of an application which claims that there has been a specified irregularity in or in connexion with the election, and that the primary duty of the court is to inquire into and determine the question whether an irregularity has occurred and that the power of the court to declare an election void depends on the finding that an irregularity has occurred.

"Irregularity" is defined by s. 4(1) of the Act as follows:

"Irregularity", in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered.

On behalf of the prosecutors it was submitted that the definition of irregularity in s. 4(1) is exclusive as well as inclusive, or, in other words, that "includes" has the same effect as "means and includes". It is true that the word "includes" may have that meaning if the provision in which it appears reveals that intention: see Y.Z. Finance Co. Pty. Ltd. v. Cummings [2] . Most of the definitions contained in s. 4(1) of the Act are prefaced by the word "means", although a few are prefaced by "includes"; in one definition (that of "Judge") both "means" and "includes" are used in contrasted senses. It would appear from the context provided by s. 4(1) that the Parliament intended the definition of "irregularity" to be inclusive and not exclusive, or in other words that the definition was intended to comprehend such things as the word would ordinarily mean as well as those specifically included. Although the things specifically included in the definition are so widely defined that at first it does not seem easy to envisage other things which would not come within the specific terms of the definition but would still be irregularities in the ordinary meaning of the word, it is possible to suggest examples - for instance, a threat made contrary to s. 171(2) which induced the withdrawal of a candidature, or a case (suggested by Gray J.) in which, without breach of the rules, a returning officer failed to make available any reasonable facility for the receipt of nominations, so that persons who desired to be candidates were prevented from nominating.

Gray J. held that the acts alleged by Mr. Adamson could amount to irregularities within Pt IX whether or not the definition in s. 4(1) is an exclusive one. He said, in his judgment of 2 November 1984:

If, as I have held, the statutory definition of "irregularity" is not exhaustive, and misleading of voters can amount to an irregularity, it seems to me that this is the sort of misleading which might come within the concept of something which may affect the result in an illegitimate way. Not only is it alleged that Mr. Bali falsely claimed to have the support or backing of the Australian Labor Party, it is also alleged that in fact he was supported, and his campaign was funded, by the National Civic Council, a body alleged to be proscribed [by] the Australian Labor Party. If those allegations turn out to be correct, it is possible that voters in the election who had made a decision to record their votes in favour of candidates representing what might be described as an Australian Labor party position or viewpoint could have been misled into recording their votes for someone who represented a viewpoint proscribed by the Australian Labor Party.

Even if the statutory definition of "irregularity" is exhaustive, it is arguable that the full and free recording of votes was hindered by Mr. Bali's election campaign, when viewed in the light of the allegations made.

It is convenient first to consider whether the alleged irregularities are within the specific words of the definition. As has been mentioned, it was conceded that no breach of the rules of the Union had occurred. There is no suggestion that there was any attempt to prevent or hinder a correct ascertainment or declaration of the results of the voting. The question therefore is whether the acts alleged to have been done by or on behalf of Mr. Bali were acts "whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons is, or is attempted to be, prevented or hindered".

The meaning of somewhat similar words was considered in Evans v. Crichton-Browne [3] . In that case the Court had to consider the meaning of s. 161(e) of the Commonwealth Electoral Act 1918 Cth, as amended, which provided:

In addition to bribery and undue influence the following shall be illegal practices:

(e) Printing, publishing, or distributing any electoral advertisement, notice, handbill, pamphlet, or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote.

It was held that the words "in or in relation to the casting of his vote" in par. (e) referred to "the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment" [4] . That decision, like any other judgment on a question of statutory interpretation, depended to some extent on the context in which the words in question appeared, but it makes clear the ordinary meaning of the phrase "cast a vote". The Court said [5] : The phrase "cast a vote" has a well defined meaning - "to deposit (a voting paper or ticket); to give (a vote)" (Oxford English Dictionary); "to deposit (a ballot) formally or officially; give a vote" (Websters International Dictionary). It does not include "to decide for whom to vote". The judgment continued [6] : the words used in the section are not apt to refer to the mental process of decision or choice which precedes the formal expression of that opinion or choice by the casting of a vote. To say, "I have cast my vote for X" does not mean the same as, "I have made up my mind to vote for X". It is only to the act of formal expression that the words in question in s. 161(e) naturally refer. The definition of irregularity in s. 4(1) of the Act expressly refers to the "recording of votes". Those words are no different in meaning from "casting of votes" - they describe the act of obtaining and marking a ballot paper and depositing it with or forwarding it to the officer of the union whose function it is to receive ballot papers. They do not refer to the process of deciding for whom to vote. 1. (1981) 147 C.L.R. 169. 2. (1981) 147 C.L.R., at pp. 207-208. 3. (1981) 147 C.L.R., at p. 204. 4. (1981) 147 C.L.R., at p. 205.

Some misleading statements may hinder the full and free recording of votes and so fall within the extended meaning of "irregularity" contained in s. 4 of the Act. In Evans v. Crichton-Browne, the Court drew a distinction between misleading statements which were intended or likely to affect an elector when he sought to record and give effect to the judgment he had formed as to the candidate for whom he intended to vote, and misleading statements which might do no more than affect the formation of that judgment. Examples of statements of the former kind were given in the judgment [7] :

For example, a statement contained in a newspaper advertisement that a ballot-paper should be marked in a way that would not conform to the requirements of the Act and which would render the vote invalid might mislead or improperly interfere with an elector in the casting of his vote. The same might be true of a statement that a person who wished to support a particular party should vote for a particular candidate, when that candidate in fact belonged to a rival party. Another example is provided by the facts of Consandine v. Strathfield Municipal Council [8] , where a "how to vote" card falsely represented that a particular candidate was, with six other candidates, a member of a group whose members had similar or identical policies. The words of the definition in s. 4(1) are materially different from those considered in Evans v. Crichton-Browne, and it is unnecessary to consider whether a false statement that a candidate was endorsed by a particular political party would be an irregularity within the definition, if the election was one at which political parties had endorsed candidates, and a voter attempting to vote for the candidate endorsed by that party was misled into voting for someone else. It should be made clear in the present case that it was not represented that Mr. Bali was a candidate formally endorsed by the Australian Labor Party, and that the statements that he had had a long history of service in that party, and had been for some years the holder of offices in the party, were not suggested to be untrue. It is clear that the representations in the present case could do no more than influence an elector in his choice of the candidate for whom he would vote. The statements allegedly made on behalf of Mr. Bali could not have prevented or hindered the "full and free recording of votes" within the meaning of the definition. 1. (1981) 147 C.L.R., at p. 205. 2. (1981) 44 L.G.R.A. 435.

The question then arises whether the conduct alleged - the distribution of the pamphlets and the publication of the advertisements - could arguably have amounted to an irregularity within the ordinary meaning of that word. According to the Oxford English Dictionary "irregularity", in its relevant sense, means "want of conformity to rule; deviation from or violation of a rule, law, or principle deviation from what is usual or normal". The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election. The question is whether it can be said that the alleged conduct of Mr. Bali and his supporters did depart from some rule, practice or principle of that kind.

To answer that question it is necessary to consider exactly what conduct is claimed to have been irregular. Upon analysis, the argument for Mr. Adamson and the Union is that the statements made on behalf of Mr. Bali were potentially misleading in three ways - first, in suggesting that Mr. Bali was a genuine supporter of the Australian Labor Party; secondly, in suggesting that he had the support and backing of the Australian Labor Party; and thirdly, in failing to disclose that he was supported by the National Civic Council, a body proscribed by the Australian Labor Party. As to the first of these matters, it could not possibly be said, in the absence of an express statutory provision or Union rule on the matter, that it was contrary to rule, practice or principle for a person who had had a long history of service to the Australian Labor Party, and who had held office in that party for a number of years, to say or suggest that he was a genuine supporter of the Labor Party, even if opinions might differ on the question whether his support of the party was wholehearted and orthodox. The gravamen of the respondents' complaint appears to lie in the second of the matters to which I have just referred, i.e. in the claim that there was a false suggestion that Mr. Bali was supported and backed by the Australian Labor Party. There was, of course, no express statement to that effect. The inference that he was backed and supported by the Australian Labor Party is sought to be drawn mainly from photographs showing him in company with the Prime Minister. However, it was not suggested that the photographs were not genuine and (again in the absence of express provision) it cannot be an irregularity to publish a genuine photograph of that kind, even if it carries a false suggestion. As to the third matter, there is simply no rule or principle of law that requires a candidate for an election to disclose every fact which may affect the opinion of voters.

Mr. Madgwick, in his submission on behalf of Mr. Adamson, asserted that there is a principle that elections should, so far as practicable, be held in a manner calculated to ascertain the authentic will of the voters. He further submitted that there will be no true expression of the will of the voters if they have been misled by a false statement, particularly one made at a time when there was no opportunity to contradict it, and that it was possible that the statements made on behalf of Mr. Bali, if proved false, may have prevented the will of the members of the Union from being correctly ascertained and that it was open to the Federal Court to inquire into the question of fact whether that had been so or not. His reference to the "authentic will" of the voters is an echo of the judgment in Federated Ironworkers' Association of Australia v. The Commonwealth [9] , where this Court held that the incidental power enables the Parliament to enact legislation directed to ensuring that the officers of a union are elected "in a manner calculated to ascertain the authentic will of the members": see especially at pp. 280, 283. A broad statement of principle appropriate to describe the width of a legislative power does not always serve as a practical guide to the meaning of legislation enacted within that power. It may be accepted that the Parliament could validly enact that a union election might be avoided if the result was or might have been influenced by a misleading statement made by or on behalf of a candidate, or by a failure to disclose all the facts about his candidature that some voters might think relevant. Parliament has, however, not so enacted.

Mr. Shaw, who appeared for the Union, referred us to the dicta of Isaacs J. in Smith v. Oldham [10] . In that case the Court upheld the validity of a section which in effect required certain articles published during an election of members of the Houses of the Parliament to be signed by the author and to contain the author's true name and address. Isaacs J., in a strongly worded judgment, said [11] :

The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances.

So far from the latter consideration being foreign to the subject of election, it is of the first importance. For an opinion into which a man has been tricked or misled, even innocently, is a double wrong. It means not merely a loss to the side on which he would otherwise have cast the vote, but it also strengthens their opponents.

Although it was clearly correct to say that it is a wrong that electors should be tricked or misled, and although it is true that the Parliament may legislate against such a mischief in the case of a union election as well as in the case of an election to the Commonwealth Parliament, it does not follow that the Parliament intended that every statement by which voters might be misled, or every failure to disclose information which voters might consider material, should be an irregularity within the meaning of Pt IX of the Act. It was pointed out in Evans v. Crichton-Browne [12] , that "the result of many elections might be rendered uncertain if any untrue or incorrect statement of fact, opinion, belief or intention might have the effect of invalidating the election if the statement was intended or likely to mislead or improperly interfere with any elector in the formation of his political judgment". The uncertainty might be even greater if non-disclosure was a ground for avoiding an election. It is entirely a matter for the Parliament to decide whether considerations of that kind should outweigh the need to attempt to ensure absolute purity in the electoral process. It cannot be assumed that the Parliament intended to enable an election to be challenged under Pt IX on the ground that statements were made which might in some way mislead the electors in making their decision as to how to vote or that facts were not revealed which might have influenced the electors in their choice. If the Parliament had so intended, it could easily have expressed that intention, but it has not done so. 1. (1912) 15 C.L.R. 355. 2. (1912) 15 C.L.R., at p. 362. 3. (1981) 147 C.L.R., at p. 207.

It may be assumed, without deciding, that the pamphlets and advertisements published on behalf of Mr. Bali might have conveyed to the electors a false suggestion that Mr. Bali had the support of the Prime Minister and of the Australian Labor Party, although on the proper understanding of the documents they could not have been reasonably understood to suggest that Mr. Bali was an endorsed candidate. Any misleading suggestion was, however, made by statements true in themselves and by the use of genuine photographs. For the reasons I have given, the publication of those pamphlets and advertisements could not properly have been held to be an irregularity, either within the ordinary meaning of the word or within the extended meaning given by the definition in s. 4(1) of the Act.

We were referred to a line of cases in which it has been held that the Court under s. 165(1) of the Act may inquire into any irregularity disclosed by the evidence even though it was not specified in the application made under s. 159: Re Elections for Offices in Australasian Meat Industry Employees' Union [13] ;Jutte v. Amalgamated Engineering Union, Australian Section [14] ; Re Federated Liquor & Allied Industries Employees' Union of Australia [15] ; Re Australian Postal & Telecommunications Union; Ex parte Wilson [16] . Assuming that the statements made in those cases were correct, it does not follow that the Court has jurisdiction to proceed with an inquiry under Pt IX when the only matters complained of are alleged irregularities which are not capable of answering that description. In the present case the exact nature of the allegations made by Mr. Adamson has been revealed by his particulars and points of claim. It has not been suggested that there are other matters, not particularized, which would justify a continuance of the inquiry.

1. (1963) 5 F.L.R. 260, at p. 265. 2. (1967) 10 F.L.R. 195, at pp. 201-202. 3. (1970) 16 F.L.R. 107, at p. 111. 4. (1979) 28 A.L.R. 330, at p. 333.

The question that remains is whether the circumstances make this a proper case for the issue of prohibition. There is a well recognized distinction between an error made by a tribunal in the course of deciding a matter, on the one hand, and an absence or excess of jurisdiction on the other: see, e.g., R. v. Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service [17] and Reg. v. Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. [18] . However, the question on which side of the line a particular case should fall may be a very difficult one: Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section [19] . Since Anisminic Ltd. v. Foreign Compensation Commission [20] it has been more clearly understood that an error of law may amount to a jurisdictional error even though the tribunal which made the error had jurisdiction to embark on its inquiry. In that case Lord Wilberforce said [21] :

the cases in which a tribunal has been held to have passed outside its proper limits are not limited to those in which it had no power to enter upon its inquiry or its jurisdiction, or has not satisfied a condition precedent. Certainly such cases exist but they do not exhaust the principle. A tribunal may quite properly validly enter upon its task and in the course of carrying it out may make a decision which is invalid - not merely erroneous. This may be described as "asking the wrong question" or "applying the wrong test" - expressions not wholly satisfactory since they do not, in themselves, distinguish between doing something which is not in the tribunal's area and doing something wrong within that area - a crucial distinction which the court has to make. See also per Lord Reid [22] and per Lord Pearce [23] . 1. (1951) 82 C.L.R. 177, at p. 186. 2. (1978) 142 C.L.R. 113, at pp. 126-127. 3. (1953) 89 C.L.R. 636, at p. 647. 4. [1969] 2 A.C. 147. 5. [1969] 2 A.C., at p. 210. 6. [1969] 2 A.C., at p. 171. 7. [1969] 2 A.C., at p. 195.

In Anisminic Ltd. v. Foreign Compensation Commission, Lord Pearce said [24] :

It would lead to an absurd situation if a tribunal, having been given a circumscribed area of inquiry, carved out from the general jurisdiction of the courts, were entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament. It is impossible to suppose that the Parliament intended that the Federal Court, acting under s. 165(3) of the Act, could declare an election void if no irregularity had occurred. However, if that Court gives a wrong meaning and effect to the word "irregularity" in Pt IX - if it applies the wrong test in deciding what is an irregularity - and so holds that something is an irregularity which is not in law capable of being so described, it is assuming to exercise the powers conferred on it by statute although the condition of their exercise is not satisfied. In deciding whether the Parliament intended to give the Federal Court jurisdiction to decide for itself, free from challenge, the matters upon which its jurisdiction depends, it is, of course, important to remember that the Court is a superior court, although one of limited jurisdiction. However, it must also be remembered that the powers given by Pt IX of the Act were originally conferred on the Australian Industrial Court (see s. 4(1) ("the Court") and Pt V of the Act) and were in 1976, by s. 118A, transferred to the Federal Court. The special and restricted nature of the jurisdiction conferred by Pt IX, and the nature of the jurisdiction of the court on which it was originally conferred, suggest that it was not intended that the Australian Industrial Court or the Federal Court should have power to determine conclusively the question on which the jurisdiction under Pt IX depends. The facts of the present case (in which subpoenas in wide terms have been directed to Mr. Marsh as well as Mr. Bali) illustrate the inconvenience that might arise if the Court were free to decide the limits of its own jurisdiction and erroneously to embark on an inquiry beyond the limits set by the Act. 1. [1969] 2 A.C., at p. 194.

The decision in Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section [25] does not support any different conclusion. The Commonwealth Court of Conciliation and Arbitration in that case had before it an application, made under s. 29(c) of the Act as then in force, for an order enjoining certain persons from committing or continuing a contravention of the Act, namely refusing or failing to comply with directions given under s. 96M(6) (the present s. 170A(1)). This Court held that the construction of s. 96M(6) was a question which lay within the jurisdiction of the Commonwealth Court of Conciliation and Arbitration to decide and that prohibition did not lie if the question was wrongly determined. However, the section that conferred jurisdiction on the Commonwealth Court of Conciliation and Arbitration in that case was not s. 96M(6) but s. 29(c) and the majority of the Court said [26] :

Section 29 is a section which confers a jurisdiction. It defines and limits a power which is given to the Court, and which the Court would not otherwise possess. Accordingly the construction and effect of s. 29(c) are matters appropriate to be considered by this Court on an application for prohibition. In the present case the provisions of Pt IX define and limit the power of the Federal Court and the construction and effect of those provisions are appropriate to be considered on this application for prohibition. 1. (1953) 89 C.L.R. 636. 2. (1953) 89 C.L.R., at p. 648.

The Federal Court had, of course, to decide whether or not it had jurisdiction to proceed - it had jurisdiction to determine whether the state of things, upon whose existence its jurisdiction depended, did or did not exist, but the correctness of its decision on that question may be tested by prohibition: see Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [27] and cases there cited and Ex parte Transport Workers' Union of Australia (New South Wales Branch); Re Gallagher [28] . My judgment in the former of those cases was a dissenting one, but not on this point. Since, for the reasons given, the matters alleged against Mr. Bali and his supporters were not in truth irregularities within the meaning of Pt IX prohibition should issue to restrain further proceedings.

1. (1979) 143 C.L.R. 190, at pp. 214-216. 2. (1964) 65 S.R. (N.S.W.) 309, at p. 314.

This conclusion having been reached it becomes unnecessary to consider whether Pt IX validly confers power on the Federal Court.

For these reasons I would make an order for prohibition and would dismiss the application for special leave to appeal.

The facts and the relevant statutory provisions have been related by the Chief Justice.

I agree with the Chief Justice that the Full Court of the Federal Court was correct in dismissing the appeal by Mr. Marsh and Mr. Bali as incompetent. For this reason the application for special leave to appeal to this Court must be refused.

I also agree with the Chief Justice that the matters complained of by Mr. Adamson do not constitute irregularities within the meaning of the word "irregularity" as it is used in Pt IX of the Conciliation and Arbitration Act 1904 Cth as amended ("the Act"). However, in my opinion the applicant has not made out a case for relief by way of prohibition or certiorari.

It is firmly established that under s. 75(v) of the Constitution mandamus and prohibition will lie to a judge of a tribunal set up by the Commonwealth Parliament notwithstanding that it is declared to be a superior court of record: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [29] . Thus prohibition may issue to the Family Court: Reg. v. Watson; Ex parte Armstrong [30] ; Reg. v. Ross-Jones; Ex parte Green [31] and to the Federal Court: Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [32] . Prohibition will issue for jurisdictional error and denial of natural justice, but not for non-jurisdictional error of law: Amalgamated Society of Carpenters and Joiners v. Haberfield Pty. Ltd. [33] ; Parisienne Basket Shoes Pty. Ltd. v. Whyte [34] . The decisions of this Court provide many instances in the field of industrial arbitration of refusal to grant prohibition for non-jurisdictional error: see Parisienne Basket Shoes; R. v. Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service [35] ; Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section [36] ; Re Moore; Ex parte Co-operative Bulk Handling Ltd. [37] .

1. (1949) 78 C.L.R. 389, at p. 399. 2. (1976) 136 C.L.R. 248, at p. 263. 3. (1984) 156 C.L.R. 185. 4. (1979) 143 C.L.R. 190. 5. (1907) 5 C.L.R. 33, at p. 49. 6. (1938) 59 C.L.R. 369. 7. (1951) 82 C.L.R. 177, at p. 186. 8. (1953) 89 C.L.R. 636, at p. 647. 9. (1982) 154 C.L.R. 1.

In general, the grant of jurisdiction to a superior court carries with it the power to determine conclusively, subject to any appeal, the existence or otherwise of facts upon which the jurisdiction depends, unless the legislature otherwise provides. As Dixon J. pointed out in Parisienne Basket Shoes [38] , to make an actual fact, event or circumstance a condition on which jurisdiction depends, "produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed".

The point has special force in relation to a superior court, even if it be a superior court with limited jurisdiction.

If, however, the court lacks power to decide conclusively whether it has jurisdiction because its jurisdiction is made to depend upon the actual occurrence of some fact, event or circumstance, then the court will be subject to the prerogative writs in the event that it wrongly decides it has jurisdiction: D.M.W. v. C.G.W. [39] . A superior court with limited jurisdiction may lack power to determine its own jurisdiction conclusively because it depends upon the existence of facts essential to the valid exercise of jurisdiction under the Constitution.

In general, prohibition should not issue unless and until the court or tribunal to which the writ is sought to be directed has had an opportunity to consider its jurisdiction and has erroneously decided to exercise that jurisdiction: Reg. v. Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. [40] . But even where the court has not decided that it has jurisdiction, prohibition may issue if the prosecutor can show "a real likelihood or danger" of an order being made in excess of jurisdiction: Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [41] .

1. (1978) 142 C.L.R. 113, at p. 127. 2. (1953) 88 C.L.R. 100, at p. 119.

It has been said that, although prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority: Australian Stevedoring Industry Board [42] . However, recent judgments in this Court support the proposition that the court has a discretion to refuse prohibition where it is sought against a superior court at least when: (a) the prosecutor has a right of appeal; and (b) there is no constitutional question involved: Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [43] ; Reg. v. Ross-Jones; Ex parte Beaumont [44] ; Reg. v. Cook; Ex parte Twigg [45] ;Reg. v. Baker & Wilkie; Ex parte Johnston [46] ; Reg. v. Ross-Jones; Ex parte Green [47] .

1. (1953) 88 C.L.R., at pp. 118-119. 2. (1979) 143 C.L.R., at pp. 230-231. 3. (1979) 141 C.L.R. 504, at pp. 517-518. 4. (1980) 147 C.L.R. 15, at p. 34. 5. (1980) 55 A.L.J.R. 191; 33 A.L.R. 660. 6. (1984) 156 C.L.R. 185, at pp. 193, 194.

As there is no appeal from the decision of Gray J. to the Full Court of the Federal Court, I do not consider that prohibition should be refused on discretionary grounds. However, the question remains whether Gray J. exceeded his jurisdiction so as to attract the remedy of prohibition.

The jurisdiction of the Court to hold an inquiry under s. 165(1) into the election depended on the reference by the Industrial Registrar of an application for an inquiry lodged under s. 159(1) claiming that there had been an "irregularity" in or in connexion with the election. The application lodged by Mr. Adamson claimed that irregularities had occurred and, in conformity with s. 159(2)(c), specified the irregularities. The matter specified did not fall within the meaning of the word "irregularity" where it appears in Pt IX of the Act. However, I do not read the provisions of the Part as conditioning the existence of the Court's jurisdiction on the actual occurrence of an "irregularity" in the statutory sense of that expression. So to interpret the grant of jurisdiction to the Federal Court would be to disregard the observations of Dixon J. in Parisienne Basket Shoes [48] to which I have already referred. Although the Federal Court is a superior court of limited jurisdiction, the limitations on its jurisdiction provide no reason for interpreting the grant of jurisdiction under Pt IX in a manner different from that favoured by Dixon J. It is nonsense to suppose that Parliament intended the Federal Court's jurisdiction to depend on the actual occurrence of an irregularity. The exclusion of a right of appeal to the Full Court of the Federal Court clearly indicates that Parliament's intention was that the primary judge's determination was to be conclusive on the issue he was called upon to decide, that is, whether the alleged irregularity had occurred.

Nor is there a case for saying that jurisdiction depends on the applicant specifying an irregularity which falls within the statutory concept. The obligation to specify the irregularity is imposed by s. 159(2)(c), a provision which is directed to the giving of particulars so as to identify the issues which will arise for determination in the inquiry. Where an election is conducted under s. 170, it is the application for an inquiry under s. 159(1) based on the claim that an irregularity has occurred that attracts the Court's jurisdiction to hold an inquiry, subject to the Court satisfying itself that there is reasonable ground for the application before it is required to proceed: s. 159(4)(b).

Accordingly, I conclude that the particular provisions in Pt IX, viewed in the light of the function which the Court performs in holding and determining an inquiry, indicate that Parliament intended that the Court should determine conclusively for itself whether an alleged irregularity amounted in fact and in law to an irregularity within the meaning of the Part. In the light of this conclusion, there is no room for the application of the principle enunciated in Anisminic Ltd. v. Foreign Compensation Commission [49] . That case decided that where a tribunal misconstrues the statute which gives it jurisdiction, the tribunal may address itself to the wrong issue and thereby exceed its jurisdiction. On the view which I have expressed the Court did not address itself to a matter outside its jurisdiction. Indeed, as Gray J. seems not to have reached a final conclusion on what constitutes an "irregularity", it may well be going too far to say that he erred in law in holding that there was reasonable ground for making the application. He decided to determine the issues of fact before reaching a final conclusion on the question of law - a mode of proceeding which was both natural and legitimate and did not involve an excess of jurisdiction. But even if he did err in law, it is not an error susceptible of remedy by way of prohibition.

This conclusion also disposes of the application for relief by way of certiorari. The existence of a statutory intention, supported by the exclusion of any appeal, that the Court should determine conclusively for itself whether an alleged irregularity amounts to an irregularity in the statutory sense of the term is an answer to any suggestion that the issue of certiorari could be justified on the footing that there was an error of law on the face of the record. In any event there is the question whether this Court would have jurisdiction to issue certiorari on this footing in relation to a decision of the Federal Court.

In the result I would refuse the application for special leave to appeal and the application for prerogative relief.

I agree for the reasons advanced by the Chief Justice that the application for special leave to appeal must be refused and that the application for a writ of prohibition should be granted. I wish merely to add some brief observations of my own on the difficult question whether, notwithstanding that the matters complained of by Mr. Adamson are not capable of constituting irregularities within the meaning of the word "irregularity" in Pt IX of the Conciliation and Arbitration Act 1904 Cth, as amended, ("the Act"), the case is one which calls for the issue of the writ.

It is unnecessary for me to canvass the many decisions of this Court in which the principles underlying this question have been discussed. They are referred to in the reasons for judgment of both the Chief Justice and Mason J. The issue is whether in issuing the subpoenas and preparing to continue with the inquiry Gray J. is exceeding his jurisdiction. The answer to that question depends on the proper construction of Pt IX of the Act and in particular upon certain of the provisions of ss. 159 and 165. Mr. Adamson lodged an application for an inquiry by the Federal Court into his claim that there had been an irregularity in or in connexion with the election. The application purported to be in accordance with s. 159(1) of the Act. It specified the irregularities which Mr. Adamson claimed to have occurred and stated the facts relied on in support of the application: s. 159(2)(c). Section 159(4) provides that where an application is made under the section in connexion with an election conducted under section 170 of the Act, as was the election in this case, the Industrial Registrar shall forthwith refer the application to the Court "and thereupon an inquiry shall be deemed to have been instituted". However, the Court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the application. At an inquiry the Court shall inquire into and determine the question whether an irregularity has occurred in or in connexion with the election: s. 165(1). If it finds that an irregularity has occurred, the Court, subject to sub-s. (4), inter alia may declare the election to be void. Section 165(4) so far as material provides:

The Court shall not declare an election to be void unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred , the result of the election may have been affected by irregularities.

I agree with Mason J. that these provisions do not evidence any intention by the Parliament that the jurisdiction of the Federal Court is to depend upon the actual occurrence of an irregularity. It is upon the next step that I have the misfortune to differ from his Honour. It seems to me that Parliament could not have intended the Court to have jurisdiction to embark on an inquiry with all the potential for expense, delay and disruption to the affairs of an organization if the claimed "irregularity" is not capable of constituting an irregularity within the meaning of the Act. The Court derives its jurisdiction in the case of an election conducted under s. 170 from a combination of sub-ss. (1) and (4) of s. 159, namely, the making of an application which the Registrar is obliged to refer to the court. Thereupon an inquiry shall be deemed to have been instituted. The application must be based on a claim that there has been an irregularity in or in connexion with the election. Such a requirement is fundamental. One must read the statutory definition of irregularity in s. 4 of the Act into s. 159(1). A claim based on facts which even if accepted as true would not establish an irregularity within the meaning of the Act is insufficient in my opinion to support an application which attracts the jurisdiction of the court to conduct an inquiry under Pt IX of the Act. For an inquiry to continue in such circumstances beyond the stage necessary to determine whether jurisdiction exists would constitute an erroneous assumption of jurisdiction, not merely error in the manner of its exercise: cf. Parisienne Basket Shoes Pty. Ltd. v. Whyte [50] , per Dixon J.

It is for this reason that I conclude that the Federal Court has no jurisdiction to pursue the inquiry and that the writ should issue.

When an application is made to this Court to exercise its original jurisdiction under s. 75(v) of the Constitution to prohibit a judge of a superior federal court from exceeding the jurisdiction vested in him, the applicant must show that jurisdiction is or will be asserted when a statutory condition governing the exercise of that jurisdiction is or will be unsatisfied or, if that challenge fails, that the law conferring the asserted jurisdiction is invalid. In considering the primary challenge, it is important to identify the jurisdiction which the court is asserting and the condition which is said not to be satisfied. The conditions governing the exercise of jurisdiction are various and the manner in which an applicant may prove that a court of limited jurisdiction is exceeding or will exceed its jurisdiction depends on the nature of the condition governing its exercise. As Sir James Colvile said in delivering the judgment of the Judicial Committee in Colonial Bank of Australasia v. Willan [51] :

There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes. Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject-matter, he properly entered upon the inquiry, but miscarried in the course of it. The superior Court cannot quash an adjudication upon such an objection without assuming the functions of a Court of appeal, and the power to re-try a question which the Judge was competent to decide. 1. (1874) L.R. 5 P.C. 417, at pp. 442-443.

The jurisdiction of the Federal Court under Pt IX of the Conciliation and Arbitration Act 1904 Cth ("the Act") is twofold. First, the Act confers jurisdiction to conduct an inquiry and to determine whether an irregularity in or in connexion with an election has occurred - a jurisdiction which I shall call the jurisdiction to inquire: see s. 165(1). Secondly, the Act confers jurisdiction to make orders of the kinds referred to in s. 165(3). These two areas of jurisdiction are not simply aspects of a jurisdiction to hear and determine a claim for relief: they are different but complementary areas of jurisdiction, governed by different conditions. When a court is invested with jurisdiction to hear and determine a claim for relief, part of its jurisdiction is to hear and determine whether the facts in issue between the party seeking relief and the party opposing relief have been proved. But the jurisdiction to inquire is not a jurisdiction to hear and determine a lis inter partes and the Court is not confined to an inquiry into issues defined by the parties. Indeed, the Court itself decides who are to be the parties to the proceedings (see s. 164), and the parties may vary from time to time according to the course which the inquiry takes.

The jurisdiction to inquire does not depend upon the fact that an irregularity has occurred or upon a finding by the Court that an irregularity has occurred. The jurisdiction to inquire depends simply on whether that jurisdiction is properly invoked. On the other hand, the jurisdiction to make an order under s. 165(3) depends on a finding that an irregularity has occurred and, in the case of orders under par. (a) or par. (b) of s. 165(3), on the forming of an opinion specified in s. 165(4). Although no order can be made under s. 165(3) unless the Court finds that an irregularity has occurred, the irregularity on which the order is made may be found as the result of the Court's own inquiry. The jurisdiction to inquire is the only jurisdiction presently asserted by the Federal Court, and we must identify the condition governing its exercise. Gray J. has not concluded the inquiry and has not addressed the question whether the evidence establishes an irregularity which warrants the making of an order under s. 165(3). Prohibition is sought to restrain his Honour from exercising the jurisdiction to inquire.

The jurisdiction of the Federal Court of Australia to conduct an inquiry into the question whether an irregularity has occurred in or in connexion with an election conducted under s. 170 of the Act is invoked by the lodging of an application for an inquiry by the court into the matter, the applicant claiming "that there has been an irregularity in or in connection with an election for an office in the organization": s. 159(1). Section 159(2) provides:

(a) be in writing in accordance with the prescribed form;

(b) be lodged with the Industrial Registrar before the completion of the election or within such time after the completion of the election as is fixed by or under the regulations;

(c) specify the election in respect of which the application is made and the irregularity which is claimed to have occurred, and state the facts relied on in support of the application; and

(d) be accompanied by a statutory declaration by the applicant declaring that the facts stated in the application are, to the best of the applicant's knowledge and belief, true.

When an election is conducted under s. 170, the Industrial Registrar is required forthwith to refer an application to the Court and "thereupon an inquiry shall be deemed to have been instituted" (s. 159(4)(a)), although the Court is not required to proceed with an inquiry unless there is reasonable ground for the application (s. 159(4)(b) and cf. s. 160(1)(a)(i)).

The jurisdiction to inquire thus depends on whether an applicant claims the occurrence of what amounts to an irregularity. If he makes such a claim the court has jurisdiction to inquire; if he does not, the court lacks jurisdiction to inquire. If, on the face of the application, what the applicant claims to have occurred does not amount to an irregularity for the purposes of Pt IX, a defect in jurisdiction appears. A defect in jurisdiction appearing on the face of the application does not require evidence to establish it (Farquharson v. Morgan [52] ) nor can evidence cure it. The defect in jurisdiction being apparent, prohibition may be granted to restrain an intended exercise of jurisdiction. The application lodged by Mr. Adamson claimed that certain irregularities had occurred, which Mr. Adamson identified as "alleged irregularities specified in this application". The jurisdiction of the Federal Court to inquire thus depends on whether any of the alleged irregularities which Mr. Adamson claimed to have occurred amounted to irregularities for the purpose of Pt IX of the Act. Nothing turns on the evidence that might be adduced in the inquiry; the jurisdiction to inquire turns solely on the terms of the application and the documents annexed thereto and on the true construction of Pt IX. Mr. Adamson's assertion that what he claims to have occurred was an irregularity is immaterial if his application reveals that it was not: cf. Roberts v. Humby [53] .

1. [1894] 1 Q.B. 552, at p. 563. 2. (1837) 3 M. & W. 120, at p. 125 [150 E.R. 1081, at p. 1083].

The Chief Justice has set out in his reasons for judgment the relevant parts of the application and its annexures. His Honour also sets out relevant extracts from a letter of particulars furnished by Mr. Adamson and points of claim filed on his behalf. It is legitimate to have regard to these documents not to amend or contradict the application but to give greater particularity to the alleged irregularities which the application specifies. For the reasons stated by the Chief Justice, I agree that none of the alleged irregularities specified in the application answers the description of an irregularity for the purposes of Pt IX of the Act. In Yirrell v. Yirrell [54] it was said that prohibition goes as of right when the defect in jurisdiction appears on the face of the proceedings but, for reasons which I stated in Reg. v. Ross-Jones; Ex parte Green [55] , the granting of prohibition directed to the judges of a superior federal court under s. 75(v) of the Constitution is discretionary and ought not be granted unless that court has decided or is likely to decide the challenge to its jurisdiction erroneously.

1. (1939) 62 C.L.R. 287. 2. (1984) 156 C.L.R., at pp. 218-220.

In the present case, the jurisdiction of the Federal Court to conduct an inquiry was challenged before Gray J. His Honour decided, erroneously in my view, that the alleged irregularities specified in the application could prove to be irregularities for the purposes of Pt IX and his Honour proposed to proceed with the inquiry.

His Honour, in arriving at this result, placed a different construction on "irregularity" from the construction placed on that word in this Court, and that led his Honour to regard the applicant's claim as requiring an investigation of the facts before deciding whether a true irregularity had been claimed. If the jurisdiction of the Federal Court to conduct an inquiry depended on a finding by that Court as to the existence of facts amounting to an irregularity, I would agree with Mason J. that prohibition would not lie. But as the question whether an "essential preliminary" to jurisdiction is to be answered by reference to the application and its annexures, and as those documents reveal an absence of jurisdiction to inquire, I would grant prohibition.

I agree with the Chief Justice that the Full Court of the Federal Court was correct in holding that it had no jurisdiction to entertain an appeal from the decision of Gray J.: s. 118B(1)(a). It follows that special leave to appeal from the decision of the Full Court should not be granted, not only because the decision of the Full Court is right but because no appeal in the present matter, which arises under Pt IX, lies to this Court: see s. 118B(2).

I agree, for the reasons which he gives, with the conclusion of the Chief Justice that the members of the Full Court of the Federal Court were correct in holding that the purported appeal to that Court was incompetent. I would refuse the application for leave to appeal to this Court from that decision of the Federal Court.

I also agree, for the reasons which he gives, with the Chief Justice's conclusion that, in the light of the "facts relied on" set out in the application for inquiry and of the effect of the definition of irregularity in s. 4(1) of the Conciliation and Arbitration Act 1904 Cth ("the Act"), the matters alleged against Mr. Bali do not, for the purposes of Pt IX of the Act, constitute an "irregularity" within the scope of that definition: see, also, the judgment of Keely J. in Re Bragg [56] . Notwithstanding that conclusion however, I consider that the present case is not a proper one for the intervention of this Court by way of prerogative writ. Indeed, were it not for the views expressed by St. John and Wilcox JJ. in their joint judgment in the Full Court of the Federal Court about the effect of the definition of irregularity in s. 4(1) of the Act which conflict with the reasoning of the Chief Justice with which I have expressed agreement, I should have followed the example of Northrop J. in that Court and refrained from expressing any view at all about the substantive questions involved in the proceedings before the learned trial judge. I turn to explain why, in my view, the matter is not a proper one for relief by way of prohibition or certiorari.

The investiture of the Court by s. 75(v) of the Constitution with original jurisdiction in "matters [i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth" does not constitute a mandate to grant those remedies in circumstances where the particular remedy is, of its nature and as a matter of established doctrine, inappropriate to be granted against the particular officer of the Commonwealth in relation to the particular function which he or she ought to perform, is performing or has performed. While the Parliament cannot, by its laws, override the provision of s. 75(v), it can make laws within the context of which the jurisdiction conferred by s. 75(v) must be exercised. If, as has sometimes been suggested (see, e.g., Whitmore and Aronson, Review of Administrative Action (1978), pp. 421, 361), the prerogative writs did not go at all to a superior court of record, s. 75(v) would not, in my view, confer upon this Court jurisdiction to direct mandamus or prohibition to what was in truth such a court even though the particular judge was, for the purposes of that paragraph, properly to be seen as an "officer of the Commonwealth". In fact, however, the proposition that the prerogative writs do not go to a superior court of record is mistaken, at least in so far as prohibition is concerned, if the words "superior court of record" are used as having their ordinary meaning in this country which is the meaning with which I understand them to be customarily used in both Commonwealth and State legislation. That meaning refers essentially to the general status of a court as a "superior", as distinct from an "inferior", court. That "status" involves a number of characteristics of which some are essential but of which no single one is necessarily affirmatively decisive. Those characteristics relate mainly, though not exclusively, to the actual exercise of the jurisdiction which is vested in the particular court. They were summarized by Latham C.J. in his judgment in R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [57] . It suffices, for present purposes, to refer to but two aspects of them. The first aspect is that it is not an essential characteristic of a superior court that its jurisdiction should be unlimited or that it be beyond the reach of the writ by which the Sovereign traditionally forbade excess of jurisdiction, namely, prohibition. The second is that, while a superior court of record will commonly be subject to appellate procedures pursuant to which its decisions may be challenged in a court placed higher than it in the relevant appellate structure, it is not, while actually exercising the jurisdiction entrusted to it, subject to the direct intervention or intermeddling of another court exercising supervisory original jurisdiction.

It is established by authority that a judge of a Ch. III court is an "officer of the Commonwealth" for the purposes of s. 75(v) of the Constitution. That being so, it is within the original jurisdiction of the Court to order the issue of a writ of prohibition directed to such a judge in a case involving an assertion of jurisdiction which is not possessed. The amenability of such a judge to the writ of prohibition depends not upon the court of which he is a member being an "inferior" court but upon the jurisdiction conferred upon the court being limited. As Willes J. commented in James v. South Western Railway Co. [58] with reference to the High Court of Admiralty: "I do not call it an inferior Court, but, treating it as a superior Court with a limited jurisdiction, it is subject to prohibition, though superior in name": see, also, Attorney-General (Q.) v. Wilkinson [59] . It should, in that regard, perhaps be mentioned that the majority judgment in Reg. v. Watson; Ex parte Armstrong [60] appears to accept that, under the general law, prohibition does not lie at all to a superior court. However, the relevant passage in the judgment refers, with approval, to a page of Fullagar J.'s judgment in Wilkinson [61] where his Honour stresses that what is relevant for prohibition is not that the Court be an inferior court but that its jurisdiction be "limited". It should also be noted that, in the same paragraph of the majority judgment in Watson [60] , the approach would appear to be adopted that prohibition could be directed to a superior court under s. 75(v) of the Constitution even if prohibition does not lie at common law to such a court since "it is in any case firmly established that under s. 75(v) of the Constitution prohibition will lie to a judge of a tribunal set up by the Commonwealth Parliament notwithstanding that it is declared to be a superior court". However, the authorities referred to as establishing that broad proposition (i.e. those cited in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [62] ) are not really relevant to it since they related to the old Arbitration Court which had, at the relevant time, neither been constituted as nor declared to be a superior court. In the Ozone Theatres Case itself, it was an administrative, and not a judicial, function of the Arbitration Court which was in question.

1. (1872) L.R. 7 Ex. 287, at p. 290. 2. (1958) 100 C.L.R. 422, at pp. 425, 431. 3. (1976) 136 C.L.R. 248, at p. 263. 4. (1958) 100 C.L.R., at p. 431. 5. (1976) 136 C.L.R. 248, at p. 263. 6. (1949) 78 C.L.R. 389, at p. 399.

The writ of certiorari significantly differs in its nature from the writs of mandamus and prohibition. If directed to a court, mandamus and prohibition are limited to enforcing the exercise, or to restraining an excess, of jurisdiction by that court. In contrast, certiorari traditionally involved the actual (subsequently notional) removal, into the court ordering the issue of the writ, of the record of the court to which the writ was directed and of the writ itself so that, as the words of the common law writ for centuries said, "we [i.e. the Sovereign] may cause further to be done thereon what of right and according to the law and custom of England we shall see fit to be done": cf., as to the wording of the Chancery writ during the period when certiorari issued from the Chancellor's Court, Marsden (ed.), Select Pleas in the Court of Admiralty (Selden Society: 1894), vol. I, pp. 149, 165:

The word "certiorari" is simply the present infinitive passive of certioro (‡ certiorem facio and from certus, certior), used only in juridical Latin, meaning "I inform, apprise, shew;" The theory is that the Sovereign has been appealed to by some one of his subjects who complains of an injustice done him in an inferior Court; whereupon the Sovereign, saying that he wishes to be informed - certiorari - of the matter, orders that the record, etc., be transmitted into a Court where he is sitting. (R. v. Titchmarsh [63] , and see, also, de Smith's Judicial Review of Administrative Action, 4th ed. (1980), pp. 587-590.) Mandamus and prohibition involve no intermeddling in, or assumption of, the jurisdiction of the court to which they are directed. Where certiorari encompasses the making of an order which should have been made by a court to which the writ is directed, it involves the doing of what is within that court's jurisdiction. Even in the ordinary case where certiorari is directed merely to quash, it will commonly involve an element of interference with the actual exercise of jurisdiction conferred on a court to which the writ is directed if that court is empowered to determine questions of law: e.g. certiorari to correct an error of law on the face of the record even though it does not go to jurisdiction: see R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [64] , per Denning L.J.; per Morris L.J. [65] . Indeed, the mandate and requirement of the writ was " to send to the Court above the original proceedings, with all things touching the same": Joseph Chitty, The Practice of Law In All Its Departments, 1st ed. (1833), vol. II, p. 354. While the fact that a court is a superior court of record does not preclude prohibition being directed to it to prevent it from transgressing the limits of its jurisdiction, its status as such a court is prima facie inconsistent with the interference with its exercise of that jurisdiction by writ of certiorari directed to it by a supervisory court. That being so, and subject to some anomalous exceptions of which the most important is that certiorari was for a period issued to the High Court of Admiralty (cf., e.g., Marsden (ed.), op. cit., vol. I, pp. 1xxvi, 1ff., 17ff., 149ff., 165ff. and vol. II, pp. xli, xliv), it has long been accepted as basic law that certiorari lies only to an "inferior" court or tribunal and not to a superior court of record: see, e.g., per Latham C.J., R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [66] ; Chitty, op. cit., vol. II, pp. 353-354; the citations from Bacon's Abridgment, Comyns' Digest and Lilly's Practical Register set out in R. v. Chancellor of St. Edmundsbury and Ipswich Diocese [67] , and de Smith's Judicial Review of Administrative Action, 4th ed., p. 588ff. "It [i.e. certiorari] never goes to a superior court": per Lord Goddard C.J., R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [68] , and see, generally, on appeal, [69] , per Singleton L.J.; [70] , per Denning L.J.; and [71] , per Morris L.J. That is not, of course, to say that the fact that a court is properly regarded as having the status of a superior court of record will preclude that status being modified either by the Constitution or by statutory provision for the issue of certiorari by, or the removal of its proceedings into, another court in a particular category of case. 1. (1915) 22 D.L.R. 272, at pp. 277-278. 2. [1952] 1 K.B. 338, at p. 348ff. 3. [1952] 1 K.B., at pp. 356-357. 4. (1951) 82 C.L.R., at p. 241. 5. [1948] 1 K.B. 195, at p. 213. 6. [1951] 1 K.B. 711, at p. 714. 7. [1952] 1 K.B., at pp. 340-342. 8. [1952] 1 K.B., at pp. 346-347. 9. [1952] 1 K.B., at pp. 355-356.

Special considerations may arise in a case involving the exercise by another court of jurisdiction in a matter remitted by this Court or in a matter of a kind to which provisions for removal into this Court are applicable. Such matters apart, there is nothing in the Constitution or any Act of the Parliament which confers upon this Court original jurisdiction to order the issue of a writ of certiorari directed to another superior court of record. The provisions of s. 75(v) of the Constitution, with their careful selection of the prerogative writs of mandamus and prohibition, plainly confer no such jurisdiction. Nor is there anything in the Constitution which precludes the Parliament from conferring the status of a superior court of record upon a Ch. III court in the sense that its actual exercise of the original jurisdiction conferred upon it is not subject to the general supervision of another court exercising its original, as distinct from its appellate, jurisdiction. The Parliament has not conferred upon the Court any power to intermeddle by certiorari in the actual exercise by the Federal Court or the Family Court of its jurisdiction. To the contrary, it has impliedly negated the existence of any such power by expressly creating both those Courts as superior courts of record. In these circumstances, it appears to me, as a matter of principle, that the Court lacks jurisdiction to direct that the prerogative writ of certiorari issue to either of those Courts. That conclusion is, however, contrary to a line of authority to which I must now refer.

In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [72] , a clear distinction was drawn between the judicial and administrative functions of the old Arbitration Court in relation to the question whether a prerogative writ could be directed to it. It was the administrative nature of the particular functions of the Arbitration Court in that case ("not exercising a judicial power, but performing a public duty imposed upon it by statute") which was seen to produce the result that, in determining whether or not the writ of mandamus should go, it was "not material whether or not the court, when acting in its judicial character, is in any sense a superior court": see, per Latham C.J., Rich, Dixon, McTiernan and Webb JJ. [73] . A fortiori, the decision of this Court in Pitfield v. Franki [74] that a writ of certiorari should be directed to, amongst others, a member of the Commonwealth Conciliation and Arbitration Commission which did not purport to be a court let alone a superior court was simply not in point on the question whether or not the Court possesses jurisdiction to order that certiorari should issue to a court which the Parliament has created as a superior court of record. In Reg. v. Cook; Ex parte Twigg [75] however, the Court ordered that certiorari should issue to the Family Court apparently on the basis that the jurisdiction to make such an order could be assumed to exist for the reason that an order for certiorari had been made in Pitfield v. Franki: see pp. 26, 29; 32-33. In reliance upon Reg. v. Cook; Ex parte Twigg, certiorari was again directed to the Family Court in Reg. v. Ross-Jones; Ex parte Green [76] . In my respectful view, the assertion of jurisdiction by this Court to order the issue of a writ of certiorari directed to the Family Court was erroneous. It may be that, in the cases in question, the order of certiorari was strictly unnecessary for the reason that the same result could have been achieved by prohibition. That is not, however, to the point in so far as the question of the Court's jurisdiction to order the issue of a writ of certiorari directed to the Family Court or the Federal Court is concerned. In particular, it is no answer to an assertion of lack of jurisdiction to order certiorari to say that "one kind of certiorari, namely, a certiorari to quash achieved the same result as prohibition, and would not intermeddle with what was within the limited jurisdiction" of the court to which the writ was purportedly directed: per Wrottesley L.J., R. v. Chancellor of St. Edmundsbury and Ipswich Diocese [77] .

1. (1949) 78 C.L.R. 389. 2. (1949) 78 C.L.R., at pp. 399-400. 3. (1970) 123 C.L.R. 448. 4. (1980) 147 C.L.R. 15. 5. (1984) 158 C.L.R. 185. 6. [1948] 1 K.B., at p. 212.

It is not necessary, for the purposes of the present case, that I form or express any concluded view on the question whether I am constrained, by what was said and done in Reg. v. Cook; Ex parte Twigg [78] and Reg. v. Ross-Jones; Ex parte Green, to hold that the Court possesses jurisdiction to direct certiorari to the Federal Court. The reason is that, if so constrained, I would be of the view that those cases should be understood as going no further than asserting the availability of the writ of certiorari to control excess of jurisdiction: as will appear, I do not consider that there has been any excess of jurisdiction here. So understood, those cases do not deny that a prima facie corollary of the fact that the Federal Court is created as a superior court of record is that it is not amenable to any supervisory original jurisdiction of another court in the actual exercise of the jurisdiction conferred upon it. That prima facie corollary is not disturbed by any grant of such jurisdiction to this Court which is, of course, itself a court of limited jurisdiction. That being so and to the extent to which the Federal Court is validly vested with jurisdiction to decide questions of fact or law involved in the existence or exercise of its substantive jurisdiction in a particular case, it does not lie within the original jurisdiction of this Court to order that certiorari issue for the reason that, in the opinion of the members of this Court, the Federal Court's decision on those questions is mistaken. It is true that the Federal Court's jurisdiction to decide such questions may, in some cases, be confined by considerations of the extent of the legislative power of the Parliament. In that regard however, care should be taken to avoid the assumption that appears sometimes to be made to the effect that the undoubted fact that a jurisdiction cannot be conferred which would exceed the limits of the constitutional power to confer it necessarily involves the proposition that the Parliament lacks legislative competence, as an incident of a substantive legislative power, to make the jurisdiction of a Ch. III court in relation to a particular matter dependent upon that court's own finding of the existence of the circumstances which underlie the constitutional validity of the grant of jurisdiction: see, e.g.,Reg. v. Federal Court of Australia; Ex parte W.A. National Football League ("Adamson's Case") [1] , per Barwick C.J. and contrast per Mason J. [2] .

1. (1980) 147 C.L.R. 15. 2. (1979) 143 C.L.R. 190, at p. 202. 3. (1979) 143 C.L.R., at p. 225ff.

The present application for prerogative writs is being considered, at this stage, on the basis that the relevant provisions of the Act are all constitutionally valid. On that basis, the learned primary judge (Gray J.) clearly had jurisdiction to entertain the proceedings before him. He had jurisdiction to conduct an inquiry under Pt IX of the Act and to receive evidence establishing the factual context within which the question whether an irregularity or irregularities had been established against Mr. Bali fell to be determined. He had jurisdiction to decide the questions of fact and law involved in that inquiry. Indeed, it was the plain intention of the Parliament, evidenced by the provisions excluding ordinary rights of appeal, that the determination of such questions of fact and questions of law should be peculiarly for the judge conducting the inquiry. His jurisdiction to decide those questions includes jurisdiction to decide them wrongly. That being so, the mere fact that there is an actual or threatened mistaken decision by the learned trial judge of questions of fact or law arising in the course of the inquiry neither involves an actual or threatened excess of jurisdiction nor provides any warrant for this Court to assume jurisdiction to intervene midway in the course of the proceedings before the Federal Court.

It is true that, in the present case, the factual inquiry upon which the learned primary judge proposed to embark would, if the facts proved did not go beyond the statement of "the facts relied on in support of the application", have failed to establish that there was an "irregularity" for the purposes of Pt IX. If he had had the benefit of the views expressed in this Court about what constitutes an irregularity for the purposes of Pt IX, his Honour would doubtless have thought it appropriate to adopt a different approach to that which he proposed to follow. That does not, however, mean that the Act compels a judge of the Federal Court conducting an inquiry under Pt IX to follow a procedure akin to the discarded equity procedure of demurrer ore tenus or that anything that his Honour did or proposed to do constituted or would have constituted an excess of jurisdiction. To the contrary, his Honour possessed jurisdiction to form a tentative, albeit mistaken, view for himself about the effect of the definition of "irregularity" and to proceed, as he proposed to proceed, on the basis that the convenient course was to postpone the formation or expression of a final view about the effect of that definition until he had determined the factual context within which, on any of the competing views of that effect, the question whether there had been an irregularity or irregularities could be determined. Nor was it beyond the jurisdiction of the Federal Court to issue subpoenas ordering the production of documents which might arguably be relevant in defining or checking lines of inquiry for defining that factual context. If, ultimately, his Honour had mistakenly found that there had been an irregularity or irregularities, the question would then have arisen whether an appeal lay from that mistaken decision or whether the effect of the relevant provisions of the Act was that the Parliament had determined that the decision of the primary judge, be it correct or be it mistaken, should be final. If, on the basis of a mistaken decision, his Honour had reached the stage of granting relief, he would nonetheless have been acting within his jurisdiction unless, upon a proper interpretation of the legislative provisions under which he was acting, the basis upon which the relevant relief could be granted was the objective existence of an irregularity or irregularities as distinct from the trial judge's judicial determination that such irregularity or irregularities had occurred.

It is also true that, as has been mentioned, the application itself set out, as it was required to do by s. 159(2)(c) of the Act, the "facts relied on in support of the application". The alleged "irregularities" which were also, as required by s. 159(2)(c), set out in the application included, however, an irregularity or irregularities within the words of the definition of irregularity in s. 4(1) in that they included allegations that the effect of conduct of which complaint was made was "to hinder or prevent the full recording of votes by all persons entitled to vote and the correct ascertainment or declaration of the results of the voting and/or which constituted an irregularity". It would, in my view, be contrary both to authority (cf., e.g., Parisienne Basket Shoes Pty. Ltd. v. Whyte [3] ) and to the clear intent of the Parliament to construe the relevant provisions of the Act as making the jurisdiction of the Federal Court to conduct an inquiry to ascertain whether there had been an "irregularity" conditional upon whether the specified "facts relied on" were objectively adequate, upon analysis and in the context of all the relevant circumstances and the provisions of the Act, to sustain the allegation that "irregularities" had in fact occurred. So to construe those provisions would be to impute to the Parliament an intention to place the Federal Court in the type of long-discredited procedural straitjacket wherein it would only be authorized to exercise its jurisdiction to deal with a matter arising from an allegation and denial of irregularity if what might be the main issue involved in the matter, namely whether or not the facts alleged constitute an irregularity, should, as a matter of law, be ultimately decided in favour of the complainant. Put differently and in a manner appropriate to the present case, the question of the Federal Court's jurisdiction to deal with the controversy between the parties could not be finally known until one aspect of that controversy, the question of the legal consequences of the facts alleged by the complainant, had been finally determined by some other court.

An argument was foreshadowed on behalf of the applicants that, if "irregularity" should be construed as extending to denote what was alleged in the "facts relied on" in the application for an inquiry in the present case, the purported conferral upon the Federal Court of the jurisdiction to conduct the inquiry would be unconstitutional for the reason that it would involve the conferral of what would, in that event, be non-judicial power upon a Ch. III court. The conclusion that "irregularity" should be given the narrower connotation for which the applicants contend makes it unnecessary for the Court to embark upon the consideration of that proposed argument.

The application for prohibition and certiorari should be refused.

The appeal in this matter to the Full Court of the Federal Court was incompetent for the reasons given by the Chief Justice. Accordingly, special leave to appeal to this Court should be refused.

I also agree with the Chief Justice that the matters complained of do not constitute irregularities within the meaning of Pt IX of the Conciliation and Arbitration Act 1904 Cth. The question remains whether the orders nisi for prohibition or certiorari should be made absolute.

Section 5(2) of the Federal Court of Australia Act 1976 Cth makes the Federal Court a superior court of record but, as I have remarked elsewhere, such a legislative assertion cannot be taken at face value when it is made in relation to a federal court created pursuant to the powers vested in the Federal Parliament by Ch. III of the Constitution: D.M.W. v. C.G.W. [4] . A federal court is necessarily a court of limited jurisdiction. Its powers can be no wider than is permitted by ss. 75 and 76 of the Constitution and when jurisdiction is sought to be conferred under s. 76(ii) in any matter arising under any laws made by Parliament, the confines of the legislative powers of the Parliament provide a further limitation.

No doubt it is within the competence of Parliament to bestow upon a federal court the attributes of a superior court to the extent that the Constitution permits. That is all that s. 5(2) of the Federal Court of Australia Act can do in relation to the Federal Court. Clearly enough those attributes include the power to punish for contempt (although the Federal Court has express power to punish contempts under s. 31 of its Act) and the protection of officers of the Court in the execution of void orders: see R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [5] , per Latham C.J. There is more difficulty in extending some of the other characteristics of a superior court to a court, such as the Federal Court, created under Ch. III of the Constitution.

A superior court is a court of general jurisdiction, which does not necessarily mean that it has unlimited jurisdiction but that it will be presumed to have acted within jurisdiction: see Peacock v. Bell and Kendal [6] . It is because a superior court is presumed to have acted within jurisdiction that it is said that, in general, prohibition does not lie to a superior court, even though its jurisdiction is limited. Nevertheless, prohibition does lie to a superior court of limited jurisdiction if the want of jurisdiction is apparent: R. v. Chancellor of St. Edmundsbury and Ipswich Diocese; Ex parte White [7] ; Mayor of the City of London v. Cox [8] ; James v. South Western Railway Co. [9] .

1. (1667) 1 Wms. Saund. 73, at p. 74 [85 E.R. 84, at pp. 87-88]. 2. [1948] 1 K.B. 195, at p. 208. 3. (1867) L.R. 2 H.L. 239. 4. (1872) L.R. 7 Ex. 287, at p. 290.

Section 5(2) of the Federal Court of Australia Act cannot operate to create any presumption that the Federal Court acts within its jurisdiction when that jurisdiction is dependent upon the existence of facts which also mark the limits of the constitutional power to create the jurisdiction. Any proceedings in the Federal Court must remain open to collateral attack in this Court upon the basis that this Court alone can conclusively determine the existence or otherwise of those facts: Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [10] . Nor, it seems to me, can the declaration in s. 5(2) of the Federal Court of Australia Act that the Federal Court is a superior court exclude prohibition even though no question of constitutional competence arises. The proposition, ordinarily applicable to a superior court, that all matters are within jurisdiction unless the contrary is shown, cannot, I think, apply to the Federal Court. Section 75(v) of the Constitution gives to the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Whatever the dignity and status conferred upon the Federal Court by s. 5(2) of its Act, it does not displace s. 75(v) nor does it remove the judges of the Court from the category of officers of the Commonwealth: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [11] . Moreover, s. 33(1)(b) of the Judiciary Act 1903 Cth makes explicit the power of the High Court to make orders or direct the issue of writs requiring any court to abstain from the exercise of any federal jurisdiction which it does not possess.

1. (1979) 143 C.L.R. 190, at pp. 202-203, 213-216, 225-230. 2. (1949) 78 C.L.R. 389, at p. 399.

If, however, the facts upon which a federal court's jurisdiction depends do not mark the limits of the power of Parliament to confer jurisdiction upon it, Parliament may entrust the finding of those facts to the federal court itself. In that event the court will not be acting outside jurisdiction in finding those facts and, even if it finds them wrongly, prohibition will not lie because prohibition is a remedy against a wrongful assumption of jurisdiction and not a remedy against an erroneous decision made by a court in the exercise of a jurisdiction which it possesses: see Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [12] , per Gibbs J.

As Dixon J. so clearly pointed out in Parisienne Basket Shoes Pty. Ltd. v. Whyte [13] , even an inferior court may be empowered to determine the facts upon the existence of which its jurisdiction depends. Prohibition will not then lie and ordinarily appeal will be the means to correct a wrong determination. Of course, if the legislature does make the jurisdiction of a court contingent upon the actual existence, as opposed to the court's determination, of a state of facts, then the proceedings of the court will remain susceptible to collateral attack by way of prohibition. But, as Dixon J. observed, such a situation is so inconvenient that legislation will be construed so as to avoid it unless it is clearly intended.

The legislation in this case is the Conciliation and Arbitration Act, Pt IX of which deals with disputed elections in organizations under the Act. An application for an inquiry may be referred by the Industrial Registrar to the Federal Court and if the court finds that an irregularity has occurred it may make one or more of certain specified orders. The jurisdiction to make an order is thus dependent upon a finding of an irregularity but the power to make such a finding is reposed in the court. In other words, the court is in this case entrusted by the legislation with the function of finding for itself the facts upon which its jurisdiction depends and, since no question of constitutional power is involved, prohibition will not lie in respect of its performance of that function. In taking the view that the facts alleged were capable of supporting a finding of an irregularity, the court was not acting in excess of jurisdiction although it was, I think, in error. Whether or not a finding of an irregularity was a condition precedent to the court's ultimate exercise of jurisdiction, the finding which the court did make did not take it outside the limits set by the legislation for its inquiry or embark it upon an exercise which was outside the area envisaged by the legislation: see Anisminic Ltd. v. Foreign Compensation Commission [14] . Within those limits, the jurisdiction which the Court was given was a jurisdiction to proceed upon its own view of the facts and law, which is what it did or proposed to do. I agree with what Mason J. has to say upon this aspect of the matter.

Certiorari as well as prohibition was, however, claimed. That raises different considerations. As the judgment of Wrottesley L.J. in R. v. Chancellor of St. Edmundsbury and Ipswich Diocese; Ex parte White [15] shows, certiorari does not lie to correct the errors of superior courts (see also R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [16] ) and one question which arises is whether Parliament has, by declaring the Federal Court to be a superior court, excluded certiorari as a means of challenging its decisions. Section 75(v) of the Constitution does not stand in the way because it does not extend to certiorari and clearly recognizes prohibition as the remedy for a court acting in excess of its jurisdiction.

1. [1948] 1 K.B. 195, at p. 203ff. 2. (1951) 82 C.L.R., at p. 241.

The question might admit of an easier answer were it not for the decisions of this Court in Pitfield v. Franki [17] , Reg. v. Cook; Ex parte Twigg [18] and Reg. v. Ross-Jones; Ex parte Green [19] . In Pitfield v. Franki, both prohibition and certiorari were sought in relation to a decision of the Deputy Industrial Registrar of the Commonwealth Conciliation and Arbitration Commission to register an organization which was ultimately held not to be an association of employees in or in connexion with any industry within the meaning of the Conciliation and Arbitration Act. This Court had original jurisdiction to grant prohibition under s. 75(v) of the Constitution. The alternative remedy of certiorari was, however, granted. The explanation proffered by Mason J. in Reg. v. Marshall; Ex parte Federated Clerks' Union of Australia [20] was that the case concerned the constitutional limits under s. 51(xxxv) of the Constitution of the authority of the Deputy Industrial Registrar to register an organization and this circumstance "possibly taken in conjunction with a bona fide claim for prohibition, gave the Court jurisdiction, despite the absence of any reference to certiorari in s. 75(v) of the Constitution ". This explanation was expanded by Gibbs J. in Reg. v. Cook; Ex parte Twigg [21] where he said:

In that case [i.e., Pitfield v. Franki], as in the present, prohibition and certiorari were claimed as alternative remedies, and one possible explanation of the decision is that once the Court was seized of jurisdiction because prohibition was sought against an officer of the Commonwealth, not merely colourably, but in good faith, the Court, in the exercise of that jurisdiction, had power, under s. 31 of the Judiciary Act, to grant the more appropriate remedy of certiorari. It should be added that the case may also have been regarded as one involving the interpretation of the Constitution. 1. (1970) 123 C.L.R. 448. 2. (1980) 147 C.L.R. 15. 3. (1984) 156 C.L.R. 185. 4. (1975) 132 C.L.R. 595, at p. 609. 5. (1980) 147 C.L.R., at p. 26.

However, in Reg. v. Cook; Ex parte Twigg this Court granted certiorari to bring up and quash a conviction for contempt in the Family Court. Both prohibition and certiorari were claimed and, of course, so far as the former was concerned, jurisdiction was to be found in s. 75(v) of the Constitution. The interpretation of the Constitution was not, however, involved and no reference appears to have been made to the status accorded to the Family Court by s. 21(2) of the Family Law Act 1975 Cth as a superior court of record. Certiorari was a convenient remedy in that case because it enabled the Court to expunge a wrongful conviction rather than merely restrain further proceedings upon it, but the question remains to my mind whether, in view of s. 21(2) of the Family Law Act, certiorari lay at all. That question was not considered and the basis of the decision was indicated by Aickin J. [1] . He said:

For the reasons which I have indicated I find it necessary in the present case to go at least as far as saying that the Court has jurisdiction to grant certiorari in a case in which prohibition would be available and in which certiorari is necessary in order to make more effective or complete the remedy which prohibition would provide. 1. (1980) 147 C.L.R., at p. 34.

Similarly, in Reg. v. Ross-Jones; Ex parte Green [2] , no question involving the interpretation of the Constitution arose. Both prohibition and certiorari directed to the Family Court were granted upon the authority of Reg. v. Cook; Ex parte Twigg [3] but no examination of the jurisdictional basis for the order for a writ of certiorari was made.

1. (1984) 156 C.L.R. 185. 2. (1980) 147 C.L.R. 15.

There is no question of constitutional competence in this case and it seems to me that, even accepting the authorities to which I have referred, certiorari as a remedy could be attracted only by the availability of prohibition as a remedy in the exercise of the original jurisdiction of this Court under s. 75(v) of the Constitution. As I have already indicated, it is my view that prohibition directed to the Federal Court is not available in this case and accordingly I think that both the orders nisi for prohibition and certiorari should be discharged. I find it unnecessary to give any final answer to the question whether certiorari is excluded as an available remedy by s. 5(2) of the Federal Court of Australia Act.