Solicitors for the Third Respondent: Geoffrey Edwards & Co.

Solicitor for the Fourth Respondent: Australian Government Solicitor

MASON, BRENNAN and DAWSON JJ.: This is an application to make absolute an order nisi granted by the Chief Justice. The prosecutor, the Australian Telephone and Phonogram Officers' Association ("the ATPOA"), the second respondent, the Union of Postal Clerks and Telegraphists ("the UPCT"), and the third respondent, the Australian Postal and Telecommunications Union ("the APTU"), are organizations of employees registered under the Conciliation and Arbitration Act 1904 (Cth) ("the Act"). The fourth respondent is the Australian Postal Commission ("Australia Post"). The order nisi calls on the first respondent Commissioner Grimshaw and the two respondent unions to show cause why writs of prohibition, certiorari and mandamus should not issue; the writ of prohibition to prohibit the respondents from proceeding further upon a decision and order made in the Australian Conciliation and Arbitration Commission ("the Commission") on 31 October 1985 in matters C No. 1109 of 1985 and C No. 1425 of 1985, the writ of certiorari to quash the finding of dispute made in the first matter on 4 July 1985 and the decision and order dated 31 October 1985, and the writ of mandamus to require the Commissioner to proceed according to law in the two matters.

2. The proceedings in the Commission and in this Court arise out of a demarcation dispute between the prosecutor and the two respondent unions concerning the employment by Australia Post in its new electronic mail service of (a) persons to operate visual display units ("VDUs") and to enter into those units messages received by telephone by those operators (designated "electronic mail operators" by Australia Post), and (b) persons to supervise electronic mail operators (designated "electronic mail controllers"). Since the 1930s the prosecutor has represented employees who accept telephone messages for transmission by telegraph in the form of telegrams. Indeed, initially the prosecutor's membership was limited to persons who performed such functions when the telegram service was provided by the Postmaster-General's Department. When in 1975 Australia Post and the Australian Telecommunications Commission ("Telecom") took over the functions of the Department, Telecom acquired the telegram service and employed members of the prosecutor to accept telephone messages for transmission by telegraph in the form of telegrams. One year later when Telecom introduced phonogram operators (VDU), members of the prosecutor were employed in that activity. They receive from customers, via the telephone network, messages for transmission. Alternatively they receive messages for transmission from employees of Australia Post located at post offices. The phonogram operator (VDU) enters the text of the message together with other details by means of a VDU and transmits the message to a post office or to another telegraph office. From time to time phonogram operators (VDU) dispatch messages handed to them in written form, price telegrams, answer customers' queries and prepare and send correction advices if difficulties are encountered in the transmission or receipt of messages accepted at VDU positions. The prosecutor has no members, other than certain switchboard attendants, currently employed by Australia Post.

3. The modern revolution in communications technology has resulted in an expansion in the range of services provided by Australia Post. In 1983 the Postal Services Act 1975 (Cth) was amended by the insertion of s.10A, which authorizes Australia Post to operate electronic mail services. These services are defined in that section as:

"... services for the transmission of information -

(b) in part by means of any one or more of the

following:

(iii) delivering or making available for

collection,

The difference between an electronic mail service and the traditional mail service may be expressed by saying that electronic mail is the transfer of information between two points by electronic means rather than the physical transfer of articles. The transfer of information by electronic means between two points, which is the central feature of electronic mail, may result in the production of a document in written form to be delivered to a destination for a recipient or to be picked up at a post office or other place by the recipient. The expansion of postal services to include electronic mail inevitably blurs the distinction formerly drawn between postal and telecommunication services which had led to the severance of the telegram service from the postal service.

4. In February-March 1984 Australia Post introduced its first electronic mail service known as "INTELPOST". In the INTELPOST service, the customer delivers the original document, be it handwritten, typed or drawn, to a post office or express courier base. It is then converted into electronic signals and transmitted through the telephone network to another post office or express courier base, where a facsimile of it is produced for delivery to the ultimate destination. Australia Post has also developed plans for an electronic mail messaging network which will provide two new services - INTELTEXT (the production and delivery of business letters) and INTELTEXT MEMO (the production and delivery of business and personal messages). The telecommunications network is to be used to transport the mail (the letters and messages) for most of its journey. The difference between these new services and INTELPOST is that:

(a) the original letter or memo is keyed into the network by

Australia Post operators from source documents,

telephone dictation, or telexes received in text form

for electronic transformation into the network; and

(b) the final letter or message is printed at the electronic

mail centre closest to the recipient, for delivery by

Australia Post express courier or by normal mail.

5. There are three main types of electronic mail centres, namely electronic post offices, electronic delivery centres and phone acceptance centres. Electronic post offices, of which there are eventually to be fifty approximately, accept messages for transmission and receive messages for delivery. Electronic delivery centres, of which there are to be eight, only receive messages for delivery. Each electronic post office will use computer equipment to store messages while they are being entered or waiting to be printed, to calculate charges and to check customers' accounts. A typical electronic post office consists of the computer with its disc storage, one or more printers and one or more VDUs with keyboards. Messages handed in at the counter area by the customer are checked by the counter staff for basic details such as legibility and correct addressing and then given to an operator. The operator uses the VDU to choose from a range of options the task to be performed. Typical tasks include obtaining an estimate of the cost of a message, checking on account details of the customer, typing the letter or message, making corrections to it, printing a proof copy, sending the letter or message to its destination and obtaining details of the charge for that message. The operators of the VDUs need typing and low level computer usage skills similar to those of word processor operators. Electronic delivery centres do not require operators of VDUs because they do not provide the function of accepting messages for transmission.

6. Phone acceptance centres handle only the acceptance of messages, but they do not have a counter service for message acceptance. Each operator at such a centre receives messages dictated by the customer over the telephone. After the message has been dictated, it is read back and verified and then sent to the destination in the usual way. A confirmatory copy of each message is printed and sent to the sending customer. The centre is connected to the telex network and messages may be sent from or received by telex stations. This is largely an automatic operation. The operator does not become involved unless the computer detects an invalid account code or destination postcode on a message originating from a telex machine. Messages are not printed at phone acceptance centres for delivery to customers.

7. The availability of more modern means of conveying messages, of which the Australia Post electronic mail services are instances, is likely to lead to a decline in the usage of Telecom's telegram and phonogram services. This decline will probably result in a reduction in employment opportunities in Telecom for the prosecutor's members. Moreover, under an arrangement between Australia Post and Telecom, which is designed to rationalize services, it is proposed that Australia Post should assume responsibility in the future for the public telegram service. The prosecutor regards Australia Post's new services as providing an alternative or additional avenue of employment for its members because these services involve functions which are broadly comparable with the traditional services provided by Telecom. However, the respondent unions contend that the relevant positions in the electronic mail services are the preserve of their members. Although Australia Post adopts a neutral stance in the proceedings in this Court, it has supported the respondent unions in proceedings in the Commission.

8. On 4 June 1985 Australia Post notified the Industrial Registrar of the existence of an industrial question between Australia Post, the UPCT and the APTU in relation to the rates of pay and conditions of employment for work to be performed in electronic mail centres. On 26 June 1985 the prosecutor notified the Industrial Registrar of the existence of an industrial dispute between it and Australia Post in relation to salaries and conditions of employment of electronic mail operators and controllers employed by Australia Post. This dispute arose out of the non-acceptance by Australia Post of a log of claims for salaries and conditions served on Australia Post by the prosecutor on 18 June 1985. The prosecutor demanded that Australia Post apply the rates of pay and terms and conditions of employment set out in its log of claims to electronic mail operators and controllers, whether they were members of the prosecutor or not. This dispute eventually became matter C No. 1275 of 1985 before the Commission.

9. At the commencement on 4 July 1985 of the proceedings initiated by Australia Post's notification (matter C No. 1109 of 1985), Mr Manley sought leave to intervene on behalf of the prosecutor on the ground that the persons who performed the functions or duties of electronic mail operators employed by Australia Post were eligible for membership of the prosecutor and that it had a legitimate interest in enrolling such persons whether they were employees of Australia Post or Telecom. The application was opposed by Australia Post and the respondent unions, the respondent unions submitting that such employees were not eligible for membership of the prosecutor. In reply Mr Manley indicated that there could be doubt about the capacity of the two respondent unions to enrol persons employed by Australia Post in the relevant positions. Commissioner Grimshaw, in refusing the prosecutor's application for leave to intervene, said:

"It has been the long-held view of this

commission that competition for membership between

unions should be avoided if and where possible. It

is the commission's view that as your association

does not have members in this area it would not be

in the public interest to unnecessarily create

competition between unions which could give rise

to, or would be likely to give rise to, industrial

confrontation or disharmony.

The commission notes that the employer in these

proceedings has indicated that it may be willing to

hold discussions with your association at a later

stage. The commission also notes that your

association has proceedings listed in this

commission in your own right.

Finally and most importantly, it would seem

questionable as to your association's eligibility

in this area. However, that is a matter that can

be tested perhaps when your own matter is heard.

For the reasons outlined and after considering all

that has been put, I refuse your application for

intervention."

On the same day the Commissioner formally made a finding that an industrial dispute existed within the meaning of s.24 of the Act between the APTU on the one hand and the UPCT and Australia Post on the other. He directed the parties to confer.

10. On 15 July 1985, in matter C No. 1425 of 1985, the APTU applied for a variation of the Australian Postal Commission (Postal Workers) Award 1977 by inserting in it designations and rates of pay applicable to electronic mail operators and controllers employed by Australia Post and to other classifications of employees. On 29 July matters C No. 1109 and C No. 1425 of 1985 were joined and proceedings in those matters, relating to the determination of rates of pay for phone acceptance operators and supervisors employed by Australia Post and other classifications, continued.

11. On 7 August 1985 the prosecutor wrote to the Commissioner asking that, prior to any decision or other proceedings in the joined matters, he relist those matters to enable the prosecutor to apply for leave to intervene in matter C No. 1425 of 1985 and to renew its application for leave to intervene in matter C No. 1109 of 1985. The Commissioner replied on the following day, stating that the prosecutor's own application (matter C No. 1275 of 1985) should be relisted for hearing on 15 August. The application was adjourned on that day and did not come on again for hearing until 19 and 20 September. In the meantime on 21 August Commissioner Grimshaw had given his decision in the joined matters, announcing that his reasons would be issued at a later date. His decision was that the Australian Postal Commission (Postal Workers) Award 1977 be varied to provide two new classifications and salary ranges as follows:

Electronic Mail

Operator - $15,472 - $16,211 - $17,196 p.a.

Electronic Mail

Controller - $18,365 - $18,991 - $19,494 p.a.

The date of effect of the decision was expressed to be on and from 21 August 1985 and it was ordered that it should remain in force for a period of six months.

12. When the prosecutor's application came on again for hearing on 19 September, Commissioner Grimshaw granted the respondent unions leave to intervene, limited to making submissions concerning the eligibility of electronic mail operators and controllers to become members of the prosecutor. In response to the prosecutor's request that it should be allowed to argue the question whether such employees were eligible for membership of each of the respondent unions, the Commissioner stated that, if it were established that the employees were eligible for membership of the prosecutor, the joined matters would be re-opened to enable the prosecutor to argue the questions it sought to raise. But at the conclusion of the hearing on 20 September, the Commissioner's final comment on the issue was:

"I would indicate to you and for your client's

benefit, I will call those other matters on, no

matter what."

13. On 31 October 1985 the Commissioner published his reasons for the decision in the joined matters to vary the Australian Postal Commission (Postal Workers) Award 1977. He did not at any time relist those matters to permit the prosecutor to address argument on the interpretation and effect of the eligibility clauses of the respondent unions.

14. The prosecutor's case in this Court is that it is entitled to:

(a) prohibition restraining further proceedings in matters

C Nos. 1109 and 1425 of 1985 because Commissioner

Grimshaw was under a duty to grant it leave to intervene

in those matters, his refusal to grant leave amounting

to a denial of natural justice;

(b) prohibition and/or certiorari on the ground that the

Commission lacked jurisdiction to make a finding of

dispute on 4 July 1985 in the first of those matters and

to make its decision and order on 31 October 1985 in the

two matters, because the eligibility clauses of the APTU

and the UPCT did not cover the employees in question and

those unions were therefore incapable of creating an

industrial dispute; and

(c) mandamus to compel Commissioner Grimshaw to determine

the two matters according to law, that is, by ruling

that no dispute existed in the first matter and by

refusing the variation sought by the APTU to the

Australian Postal Commission (Postal Workers) Award 1977

in the second matter.

15. The Commission's discretionary power under s.36(2) of the Act to allow an organization to intervene in any matter, provided that the Commission is of the opinion that it is desirable that the organization be heard, was discussed by this Court in Reg. v. Ludeke; Ex parte Customs Officers' Association of Australia [1985] HCA 31; (1985) 155 CLR 513. That decision is authority for four propositions, the last two of which are fatal to the first branch of the prosecutor's case:

(1) the Commission is bound to observe the rules of natural

(2) in some circumstances refusal of leave to intervene may

(3) a person who is not directly affected by a proceeding

does not have a right to intervene in the proceeding

because failure to afford a hearing to such a person

does not amount to a denial of natural justice, although

the Commission may be disposed to allow such a person to

intervene by reason of considerations of fairness - see

pp.519-520, 525, 529, 530;

(4) when two unions each claim coverage in respect of

particular job classifications and one of them seeks an

award for its present or future members, relating to the

terms and conditions of employment for those

classifications, the other union has no direct interest

in the proceedings for that award, notwithstanding that

the second union seeks to argue that the job

classifications fall within its eligibility clause and

outside that of the first union - see pp.521, 529,

531-532.

16. The fourth proposition applies in the present case to the prosecutor's application for leave to intervene. The reasons given in the Customs Officers' Case for holding that the Customs Officers' Association of Australia had no direct interest in ACOA's application for an award operate with equal force here. Neither Australia Post's application nor that of the APTU involved the seeking or making of any order against the prosecutor. Orders made on those applications would not govern the employment of persons not eligible to be members of the APTU and the UPCT. And the prosecutor was entitled, as it did, to seek an award for its own members. True it is that the prosecutor may suffer the disadvantage that the respondent unions have a competitive advantage in recruiting members once they obtain an award governing the disputed job classifications, an advantage to which they are not entitled if the prosecutor's arguments be soundly based. But this disadvantage, it is conceded, does not generate a direct interest on the part of the prosecutor.

17. What we have already said is enough to dispose of the submission that the Commissioner was bound to grant leave to intervene. And, if the Commissioner was not bound to grant leave, it is very difficult to see how in the circumstances of the case his refusal to make the grant amounted to a denial of natural justice. It cannot be said that the Commissioner's decision to refuse leave was so unreasonable as to render the exercise of his discretion invalid. Indeed, the reasons which he gave for that refusal on 4 July 1985 do not establish that there was an erroneous exercise of his discretion. First, the Commissioner was entitled to have regard to the fact that no member of the prosecutor was employed by Australia Post in the relevant classifications. Secondly, his decision was not based on a finding that the prosecutor lacked eligibility. The Commissioner did no more than say that the prosecutor's eligibility was questionable and could be tested in the proceedings which the prosecutor had initiated. Thirdly, the Commissioner did not refer to the eligibility of the respondent unions, no doubt for the reason that in the proceedings the prosecutor had raised the matter in a tentative way and then only in response to the respondent unions' claim that the prosecutor lacked eligibility.

18. The attack on the Commissioner's exercise of discretion is partly based on subsequent developments. There was his later decision in matter C No. 1275 of 1985, given on 31 October, that the prosecutor's eligibility clause covered the relevant job classifications and his statement made on 19 September during the hearing that in that event the joined matters would be re-opened in order to give the prosecutor the opportunity of arguing the eligibility of the respondent unions. However, neither development has the effect which the prosecutor seeks to attribute to it. If the exercise of discretion was not erroneous on 4 July 1985, it did not become erroneous by reason of subsequent events. Those events did not falsify the reasons given for refusing leave to intervene. Although it is unfortunate that the Commissioner's statements encouraged the expectation that the joined matters could be re-opened, the failure to carry them into effect does not amount to a denial of natural justice or to an unreasonable exercise of his discretion.

19. In these circumstances we have no need to consider the respondent unions' submission that s.60(1) and (2) of the Act provides an answer to the prosecutor's claim for prerogative relief to the extent that it is based on a denial of natural justice. The point which was sought to be made, on which we express no opinion, is that denial of natural justice is not a basis for denying conclusive effect to the Commission's finding as to the existence of an industrial dispute.

20. It is convenient now to examine the eligibility clauses of the respondent unions. The eligibility clause of the APTU describes its eligible membership in general terms subject to a series of provisos which exclude various categories of employees from that membership. The general description of the membership is in these terms:

The Union shall consist of an unlimited number of

employees employed in or in connexion with the

installation, maintenance or provision of postal or

telecommunications services by the Australian

Postal Commission or by the Australian

Telecommunications Commission ... ."

Of the six provisos only the last is relevant. It is in these terms:

"(f) Persons employed by the Australian Postal

Commission or the Australian Telecommunications

Commission qualified and performing the ordinary

duties at 8th October 1984 of the following

classifications:

Supervisor (Telephone)

Supervisor (Phonogram)

Supervisor (Phonogram VDU)

Supervisor (Telex)

Telephonist

Phonogram Operator

Phonogram Operator (VDU)

Telex Service Operator

Teleprinter Switchboard Attendant

Night Telephone Attendant

Switchboard Attendant (Non-Official Post Office)."

21. The APTU's eligibility clause, in the form in which it is now expressed, is the result of an application made on 23 December 1982 by the APTU for consent to alteration of its rules. The Union sought consent to an alteration which would have expressed the eligibility clause in terms of the opening general description without the provisos. The six provisos were included by way of response to objections made by other interested organizations. Proviso (f) gave expression to an undertaking given by the APTU in response to an objection made by the present prosecutor in those proceedings. That undertaking was as follows:

"The (APTU) undertakes that by reason of changes

made by applications R Nos 270 and 271 of 1982 it

will not intrude into the current areas of

industrial coverage of (the prosecutor)."

"Further, proviso (f) is intended to relate to

current and future employees of Australia Post and

Telecom Australia."

22. The general rule of construction is that eligibility provisions should be construed liberally rather than narrowly or technically (Reg. v. Cohen; Ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577, at pp 581, 587). But it does not follow, as the prosecutor submits, that a proviso should also be construed liberally. In the present case we should construe the proviso objectively, recognizing that it constituted the settlement of a conflict between the APTU and the prosecutor in which the prosecutor was concerned to ensure that the alteration of the APTU's eligibility clause would not enable it to enrol present or future members of the prosecutor. The significant feature of that settlement, as expressed in proviso (f), is that the persons excluded from the general description were those employed by Australia Post or Telecom "qualified and performing the ordinary duties at 8th October 1984" of the specified classifications. The effect of the proviso is to deny to the APTU the capacity to enrol persons who are performing those duties, whether or not the duties are described by the specific job classifications mentioned, and whether the persons are employed by Australia Post or Telecom. The APTU is thus prevented from enrolling electronic mail operators and controllers only if their duties are the same as the ordinary duties of a phonogram operator or phonogram operator (VDU), or of a supervisor (phonogram) or supervisor (phonogram VDU) on 8 October 1984, these being the only job classifications in the proviso that are presently relevant.

23. A comparison of the duties and responsibilities of the four relevant job classifications mentioned in proviso (f) with those of the electronic mail operator and controller reveals substantial similarities. But there are also significant differences, arising out of the different characteristics of the more advanced services which the electronic mail centres provide. Thus, important elements in the duties of an electronic mail operator are the giving of advice and assistance to customers on the use of, and charges for, various electronic mail services, the development of ad hoc accounts, the provision of information to the customer concerning his credit limit, and interrogating the system to ensure efficient operation of the messaging service. These are not duties of phonogram operators or phonogram operators (VDU). Furthermore, in addition to keying into a VDU messages received by telephone, electronic mail operators also key in messages received in written form from facsimile machines. Phonogram operators and phonogram operators (VDU) do not perform this function. This comparison indicates that the duties of the new Australia Post electronic mail operator are not the ordinary duties of the two relevant job classifications in proviso (f) as at 8 October 1984. The new duties are materially different.

24. The same conclusion is dictated by a comparison of the duties and responsibilities of the new controller classification with those of the old supervisor positions, a difference reflecting, to a large degree, the difference in duties of those whom they supervise.

25. Accordingly, the claim for prohibition and certiorari, to the extent to which it is based on an alleged lack of coverage by the APTU, fails.

26. The eligibility clause of the UPCT is in these terms:

"3(a) Telegraphists and Phonogram Operators (VDU)

employed in the Australian Telecommunications

Commission.

(b) All Postal Clerks, Senior Postal Clerks,

Officer-in-Charge, Grade 1,

Officer-in-Charge, Grade 2, and

Officer-in-Charge, Grade 3, employed in the

Australian Postal Commission.

(c) All Postmasters who are not qualified to be

promoted to, or transferred to, positions

classified as being within the Third Division

of the Australian Public Service.

(d) All Instructors, Postal Training Schools,

employed in the Australian Postal Commission.

(e) All Telegraphists-in-Training employed in the

Australian Telecommunications Commission.

(f) All Trainee Postal Clerks and all Assistant

Postal Officers selected for training as

Postal Clerk employed in the Australian

Postal Commission.

(g) All employees named in (a) to (f)

inclusively, whose position may be affected

by technological change, and who would

normally substantially perform the duties of

the new or changed positions created by such

technological change or organisational

review,

excluding all persons eligible to become

members of the Australian Postal and

Telecommunications Union, the Australian

Telecommunications Employees Association, the

Australian Telephone and Phonogram Officers'

Association, the Federated Clerks Union of

Australia and The Australian Public Service

Association (Fourth Division Officers).

(h) All persons appointed as paid Officials of

the Union."

27. Clause 3(a), which relates to phonogram operators (VDU), confines membership to those who are employed by Telecom. It follows that, if the UPCT has coverage in relation to the new positions with Australia Post, that coverage must be provided by par.(g). There is an initial problem with that paragraph. The problem arises from the fact that the occupations mentioned in the preceding paragraphs are occupations which, with the exception of par.(c), are described by reference to employment with a particular named employer, either Telecom or Australia Post. The question is whether the expansion in occupation brought about by technological change, which par.(g) seeks to achieve, is an expansion of occupation within the particular employment previously designated or whether the expansion is not limited in that way. It seems to us that par.(g) should be understood as providing for an expansion within the particular employment previously mentioned so that, when par.(g) is read with par.(a), the later paragraph applies only to persons employed by Telecom.

28. In any event the exclusion in par.(g) operates to exclude from membership persons eligible to become members of the APTU. In the light of our conclusion that the APTU has coverage in respect of the new positions with Australia Post, par.(g) would effectively exclude employees in those positions from membership of the UPCT.

29. We should mention that counsel for the UPCT did not present an argument in opposition to the prosecutor's claim that the UPCT lacked coverage. And it is by no means clear to us that the UPCT intends to maintain a claim for coverage in respect of the disputed positions against the APTU. Yet the prosecutor's argument for the grant of prohibition depends on the exclusion of UPCT coverage by APTU coverage. In those circumstances there seems little merit in granting limited prohibition in relation to so much of Commissioner Grimshaw's finding of dispute in matter C No. 1109 of 1985 on 4 July 1985 and his order and decision in the joined matters on 31 October 1985 as relates to the UPCT.

30. The jurisdiction of this Court to grant prohibition under s.75(v) of the Constitution directed to a non-judicial tribunal is not necessarily governed by the same principles as those which govern the common law jurisdiction of a superior court to grant prohibition to an inferior court. At common law there has been some controversy as to the existence and extent of the Court's discretion to refuse prohibition when the writ is sought by a stranger to the proceedings before the inferior court, but the resolution of the controversy has not been thought to determine the existence of this Court's discretion in exercising its jurisdiction under s.75(v) to grant or refuse prohibition to the Commission. The tendency of the Court has been to assume the existence of a discretion to refuse the remedy when sought by a stranger though a case in which it would have been right to refuse the remedy has not arisen hitherto (see Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317; Reg. v. Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77, at pp 81, 88, 97; Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [1977] HCA 70; (1977) 140 CLR 63, at p 78). But in this case, it would be inappropriate to grant the remedy sought by the prosecutor. The prosecutor is a stranger to any dispute between the APTU and the UPCT as to the scope of the exclusion in par.(g) of the UPCT's eligibility clause with reference to the positions to which the decision of 31 October related. Those organizations are at one in seeking to uphold the order of 4 July 1985 and the order and decision of 31 October.

31. Prohibition should be refused. Equally the prosecutor's claim for certiorari must fail. As relief by way of mandamus is consequential upon the prosecutor succeeding in other aspects of his case, mandamus does not require separate consideration.

Order nisi for writs of prohibition, certiorari and mandamus discharged.