The QueenThe Commonwealth Court of Conciliation and Arbitration and Another [1954] HCA 6

The learned judge exercising the jurisdiction of the Court of Conciliation and Arbitration in pursuance of the Stevedoring Industry Act declined to allow the prosecutor to be represented in that manner upon his appeal. The prosecutor claims that according to the true meaning and application of the legislation the learned judge was under a duty to allow him to be represented by an officer of the organization of which he is a member and he obtained the present order nisi for a mandamus directing the learned judge to do so.

The tenor of the writ sought directs him to hear and determine according to law the appeal of the prosecutor and on the hearing of the appeal to allow the prosecutor to be represented by an officer of the Waterside Workers' Federation. Section 46 of the Conciliation and Arbitration Act 1904-1952 regulates the representation of parties and it is upon that provision that the correctness of the ruling of the learned judge depends. Section 50 (3) of the Stevedoring Industry Act enacts that the provisions of s. 46 of the Conciliation and Arbitration Act shall extend to proceedings before the Court under the Stevedoring Industry Act.

Section 46 is as follows: - "(1) In any proceedings before the Court or a Conciliation Commissioner - (a) an organization may be represented by a member or officer of that organization; and (b) a party (not being an organization) may be represented by - (i) an employee of that party; or (ii) a member or officer of an organization of which that party is a member. (2) In proceedings before the Court or a Conciliation Commissioner, a party shall not, except by leave of the Court or the Conciliation Commissioner, as the case may be, be represented by counsel, solicitor or paid agent. (3) This section shall not apply to judicial proceedings before the Court".

The ruling of the learned judge, which he based upon a decision or direction of the Full Court of Conciliation and Arbitration, was that the appeal given by s. 25 of the Stevedoring Industry Act is a "judicial proceeding before the Court" within the meaning of sub-s. (3) of s. 46 so that s. 46 does not apply.

The question does not appear to me necessarily to involve any constitutional matter. It depends primarily upon what s. 46 (3) means by the words "judicial proceedings before the Court". That expression, I think, is intended to mark the distinction between matters before the court exercising the authority of an industrial tribunal and proceedings under the provisions of the Act giving it a jurisdiction as a court of law for the enforcement of certain duties and liabilities imposed by law or certain rights conferred by law. Some examples of provisions of the latter description are to be found in s. 16 (2) and (3), s. 28, s. 29A, s. 59 and s. 119. I should not have thought that the appeal under s. 25 of the Stevedoring Industry Act was of this kind or involved a judicial proceeding within the meaning of s. 46 (3) of the Conciliation and Arbitration Act. The so-called appeal entitles the waterside worker to a review of the action of an administrative body by the Court of Conciliation and Arbitration exercising a special authority under the Stevedoring Industry Act 1949. Once the board has satisfied itself that one or other of the conditions specified in pars. (a) to (e) of sub-s. (1) of s. 24 of the latter Act has been fulfilled, then a very full discretion arises allowing the board to cancel or suspend the waterside worker's registration or not to do so as the board thinks fit. It is an administrative discretion although no doubt to be exercised in a judicial manner. For s. 24 gives a quasi judicial power affecting the rights of individuals. But the considerations governing the exercise of the discretion are not defined or expressly limited. Of course the board cannot act upon grounds which go outside the purposes for which it was intrusted with authority to cancel or suspend registration and those purposes must be ascertained from the scope and object of the Act. When an appeal is made under s. 25 I think that the Court of Conciliation and Arbitration as a revisory tribunal is placed in the same position as the board: it must be satisfied of the existence of one or other of the preliminary conditions stated in pars. (a) to (e) of s. 24 (1); thereupon the same discretion arises in the court. It must be remembered that the chief functions of the Court of Conciliation and Arbitration are industrial. The case is not like that of a statutory provision creating an appeal to one of the ordinary courts of justice from an administrative decision. The character of the court as part of the regular system of courts of law may in such a case lead to a restrictive interpretation being placed on the provision, as, for example, was done in McCartney v. Victorian Railways Commissioners [1] per Mann J.; see the same case in this Court [2] . But in the case of the Court of Conciliation and Arbitration it is more natural to interpret such an appeal as designed to give a right of resort to an authoritative industrial tribunal for a complete reconsideration of the action taken by the administrative body but in the exercise of like powers and for the same purposes. I do not think that sub-s. (3) of s. 46 of the Conciliation and Arbitration Act 1904-1952 applied to the prosecutor's "appeal" so as to exclude the operation of sub-ss. (1) and (2) on the ground that it was a judicial proceeding before the court.

1. (1935) V.L.R. 51, at pp. 62-63. 2. (1935) 52 C.L.R., at p. 388.

But it does not follow from this conclusion that the learned judge's view to the contrary should be corrected by mandamus. That appears to me to depend upon the question how s. 46 should be regarded. Should it be regarded as a provision to be administered and enforced by the Court of Conciliation and Arbitration so that the duty of that court is to decide what is its operation in any given case and ascertain the facts and the law for the purpose as an incident in the performance of its functions? Or on the other hand should it be regarded as imposing an imperative duty correctly to give effect to the section as it applies to the facts of the given case, and as conferring a corresponding right on the party independent of any decision, determination or ruling of the Court of Conciliation and Arbitration and enforceable by mandamus against that court?

If it has the former character, then the learned judge has performed his judicial duty by hearing and deciding the application by the Industrial Officer for leave to appear for the present prosecutor. If the latter be the character of the section, then the ruling of the learned judge would have the very opposite effect, that is, assuming the view I have expressed to be right, namely, that an appeal under s. 25 is not a judicial proceeding before the court. For it would then amount to a refusal to fulfil his duty of allowing the now prosecutor to be represented by the Industrial Officer of his organization.

To enable this Court to award the mandamus sought it must appear that the prosecutor obtained under s. 46 a right ascertainable, not by the Court of Conciliation and Arbitration, but independently of that court, which therefore was powerless to do more when the difficulty arose than give a direction de bene esse. Doubtless s. 46 "entitles" a party in cases to which it applies to be represented as the section provides. But every right or title must be enforced or administered in some forum. Is not the assumption of s. 46 that the Court of Conciliation is the forum? Mandamus goes to compel the performance of a duty, not simply to enforce a right. Lord Ellenborough's compendious statement in R. v. Archbishop of Canterbury [1] , shows how this remedy for the right is addressed to the duty: - "this Court, in the exercise of its authority to grant the writ of mandamus, will render it as far as it can the suppletory means of substantial justice in every case where there is no other specific legal remedy for a legal right; and will provide as effectually as it can that others exercise their duty wherever the subject-matter is properly within its control" [1] . "But the writ of mandamus is a high prerogative writ, and is confined to cases of a public nature": R. v. London Assurance Co. [2] . "The Court never grant this writ except for public purposes, and to compel the performance of public duties": R. v. The Governor and Company of the Bank of England [3] .

1. (1812) 15 East 117 [104 E.R. 789]. 2. (1812) 15 East, at p. 136 [104 E.R., at p. 796]. 3. (1822) 5 B. & Ald. 899, at p. 901 [106 E.R. 1420, at p. 1421]. 4. (1819) 2 B. & Ald. 620, at p. 622 [106 E.R. 492, at p. 493].

The measure, therefore, of the public duty under s. 46 of the Court of Conciliation and Arbitration is the measure of the prosecutor's right to the writ. Is the Court of Conciliation and Arbitration under any other duty than to decide judicially upon the meaning and application of s. 46 to the given case? Is s. 46 to be administered and effectuated elsewhere than in that court? To put it in another way is the right conferred by s. 46 conferred as a right enforceable by the Court of Conciliation and Arbitration or against the Court of Conciliation and Arbitration? Upon this question as upon the scope and effect of s. 25 of the Stevedoring Industry Act 1949 a most important consideration is the special nature of that court, its dual character, and the policies disclosed by the Conciliation and Arbitration Act of furnishing it with a simple and flexible procedure of which it is to be master and giving conclusiveness and finality to its determinations whether they are or are not consistent with the provisions of the Act. It may be said broadly that the general tendency of the Act is to place the Court of Conciliation and Arbitration at the head of a closed system. In terms s. 32 gives conclusive effect to and protects the judgments, orders and awards of the Court. Unlike the parallel provision on which the decision perhaps turned in President and Members of the Court of Arbitration (W.A.) v. Nicholson [4] , s. 32 does not use the word "proceedings" and for that reason the decision is not definitely in point. But on almost the same question the Industrial Conciliation and Arbitration Act 1902 W.A. was there construed as leaving the whole matter to the Industrial Court. There is no real similarity to the case of rights of audience or rights to appear by solicitors or authorized agents in inferior courts forming part of the ordinary judicial system. Apparently in England the special statutory remedy given in lieu of mandamus by s. 43 of 19 & 20 Vict. c. 108 to compel a county court judge "to do any act relating to the duties of his office" has been treated sub silentio as applicable to an erroneous refusal to allow persons entitled to appear to do so, although perhaps no actual order of the kind has been made: cf. Reg. v. Spooner [1] ; Ex parte Rogers [2] ; Reg. v. Registrar of Greenwich County Court [3] ; Reg. v. Judge of County Court of Oxfordshire [4] . Apparently the provision was assumed to give a supervisory and corrective power proper to be used to ensure that the County Court gave effect to the provisions entitling either practitioners to appear or parties to be represented. Even in these cases it seems to have been treated as evident that the facts were for the County Court to decide. I cannot see how on the application of s. 46 a distinction can be made between the decision of the Court of Conciliation and Arbitration on matters of fact and on matters of law.

1. (1906) 4 C.L.R. 362. 2. (1868) 18 L.T. N.S. 325. 3. (1868) L.R. 3 C.P. 490. 4. (1885) 15 Q.B.D. 54. 5. (1894) 2 Q.B. 440.

The present application depends upon the interpretation of s. 46 and the intention to be ascribed to it. The section must be interpreted in the context of the Act as a whole and the policies it exhibits. It would, as it seems to me, be contrary to the whole spirit and intendment of the Act to interpret s. 46 as imposing upon the Court a duty except its duty to administer that provision in the exercise of its jurisdiction to decide the matters before it whether incidental and procedural or substantive. The Court of Conciliation and Arbitration is no longer an inferior court, a matter it may be remarked tending to support and not detract from the interpretation I place upon s. 46. But otherwise the case in my opinion falls within the following proposition laid down by A. L. Smith L.J., though in a somewhat different case: Reg. v. Justices of London [5] : "The rule is this. When an inferior court hears and determines a matter within its jurisdiction, however erroneously it may decide, either the law or the facts therein, no mandamus will go, the reason being that the Court of Queen's Bench has no prerogative to decide by way of appeal matters decided by an inferior court within its jurisdiction" [6] .

1. (1895) 1 Q.B. 616. 2. (1895) 1 Q.B., at p. 637.

I agree with the reasons for judgment of the Chief Justice. In my opinion the order nisi should be discharged.

If Wright J. had only administrative jurisdiction mandamus would ordinarily go, as he refused to do his duty to hear the prosecutor by his union agent. But I cannot see why it should be refused simply because his Honour mistook the nature of the proceedings. That mistake did not improve the quality of his action to the extent of preventing a failure of duty on his part. Failure of duty arising from mistake appears to me to have no special immunity. The fact is that, under a misapprehension that he was discharging judicial and not administrative functions, he failed in his duty to hear the prosecutor's union agent. That duty was, I think, a public duty, having regard to the subject matter of the legislation and to the form in which s. 46 of the Conciliation and Arbitration Act 1904-1952 is cast.

In my opinion his Honour's duty was not discharged simply by his entering upon the determination of the nature of the proceedings and making a wrong determination. Before a judge can properly discharge his duty in a particular jurisdiction he has to realize that he is acting in that jurisdiction. Had his Honour realized he was exercising administrative functions he would have heard the union agent. It was because he failed to realize this that he refused to hear the agent. Actually his Honour gave no consideration to the question of hearing the agent, apart from determining the nature of the proceeding before him.

Now this was an administrative proceeding before the board and the appeal did not make it a judicial proceeding. As to this I agree with the reasons for judgment of the Chief Justice. It would have been otherwise if Wright J. had no administrative jurisdiction. The cases dealing with medical practitioners de-registered by the Medical Board and appealing to the Supreme Court, upon which Mr. Phillips strongly relies, are, in my opinion, inapplicable. Certainly the proceedings before the Medical Board were administrative, but the appeal was given to a purely judicial body which, unlike Wright J., did not have administrative jurisdiction, except to make general rules of court.

Section 75 (v.) of the Commonwealth Constitution still applies to members of the Arbitration Court, s. 17 (3) of the Conciliation and Arbitration Act notwithstanding. At all events that is not questioned in these proceedings. But I am satisfied that there is no need for a mandamus, as Wright J. can confidently be expected to act on this Court's opinion and to decide to hear the union agent. It would be different if his Honour could have bound and had bound himself by an irrevocable order against hearing the union agent.

I agree with the Chief Justice in holding that the hearing of an appeal under s. 25 of the Stevedoring Industry Act 1949 Cth. against the cancellation of a waterside worker's registration under Pt. II of that Act does not fall within the words "judicial proceedings before the Court" in s. 46 (3) of the Conciliation and Arbitration Act 1904-1952 Cth.. I cannot usefully add anything to his Honour's reasons for so holding.

This answers in the manner desired by the prosecutor the question which the proceedings were designed to resolve. Whether in the circumstances mandamus should go is a question in which neither the prosecutor nor the respondents have more than an academic interest, and I see no necessity to form a concluded opinion upon it. The appeal before the learned judge of the Arbitration Court stands adjourned pending this Court's decision as to whether or not s. 46 applies, and one may be quite sure that when his Honour resumes the hearing he will be guided by the decision we give upon s. 46 and will proceed to hear the appeal according to law whether commanded to do so or not. In the circumstances I am content to join in discharging the order nisi. At the same time I should make it clear that, as at present advised, I should be disposed to think that the language of s. 46 places upon the Arbitration Court a positive duty to allow a party to proceedings before it to be represented in accordance with the section, except where the proceedings are in truth judicial proceedings - not except where they are considered by the Arbitration Court to be judicial proceedings.

Before parting with the case I desire to refer to the fact that the argument addressed to the Court by counsel for the Commonwealth, to whom leave to intervene had been granted, was directed, as he frankly conceded towards the end of the case, to questions which were of general importance but in which the Commonwealth had no specific interest of its own. It seems desirable to repeat some words concerning interventions by leave, which one might have expected would command general acceptance: - "I think we should be careful to allow arguments only in support of some right, authority or other legal title set up by the party intervening. Normally parties, and parties alone, appear in litigation. But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the Court in matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers which as States or as Commonwealth they may exercise" (Australian Railways Union v. Victorian Railways Commissioners, per Dixon J. [1] ).

If this view be accepted, as I believe it should be, the corollary must follow that leave to intervene, when granted, ought not to be interpreted as a general licence to discuss every interesting question in the case but should be acknowledged as limited to the submission of an argument pro interesse suo.

I am in agreement with the reasons of the Chief Justice in this matter and I have nothing to add.