Western Australian Amalgamated Society of Railway Employés Union of Workers v Commissioner of Railways for Western Australia [1905] HCA 46

Where an inferior Court has announced its intention not to deal 1 Nov. 15, 16.

certain of the matters brought before it ina particular proceeding, or

to admit a particular class of evidence, a mandamus will not lie wh ep proceeding is still pending to compel that Court to deal with those matt O'Connor JJ. or to admit that particular class of evidence.

Under the Industrial Conciliation and Arbitration Act 1902 (W.A.) a of workers registered under sec. 108 (a) of that Act, alleging a di

between itself and the Commissioner of Railways, instituted proceedin

the Court of Arbitration to regulate the wages of practically all wo the employment of the Commissioner of Railways. Certain classes of members of that union were members of other unions registered under ¢ sections of the Act, and the Commissioner of Railways alleged that h entered into industrial agreements with those other unions. The Arbitration ordered that all such classes of members should be struck @ the proceedings, and, having announced that it would not consi question of the wages or condition of employment of those classes, proc with the hearing of the matter :

Add, that, the hearing of the matter being still pending, mandamus not lie to compel the Court of Arbitration to hear and determine the ns so far as it related to those classes of persons, or to reinstate such persons in the proceedings, and, therefore, the Supreme Court having ref an order nisi for a mandamus, special leave to appeal was refused.

The Western Australian Amalgamated Society of Railway Employés Union of Workers (hereinafter called "the society ") applied by motion to the Supreme Court of Western Australia ", for an order calling upon the Court of Arbitration to show cause why a mandamus should not issue to compel the said Court of Arbi- (AISI Ge tration to hear and determine an industrial dispute between the - Wonsens society and the Commissioner of Railways for the State of Cowmsstoxer Western Australia, and especially so far as such dispute related to or concerned workers of the classes coming under the headings © of wagon and coach-builders, iron and brass-moulders, engineers and carriage-builders, who had by the said Court been struck out of the proceedings, and to reinstate such workers in such proceed- ings.

The motion, which was heard by the Full Court on 31st October, 1905, was supported by the affidavit of Edgar Harold Casson general secretary of the society, the material paragraphs of which were as follow:

2. The society was registered pursuant to sec. 108 («) of the Statute 1 & 2 Ed. VII. No. 21, and comprises Government railway employés exclusively.

_ 3, The society comprises, amongst other railway employés, . persons coming under the headings of wagon and coach-builders iron and brass-moulders, engineers and carriage-builders. 4. The society has an industrial dispute, now properly before the Court of Arbitration established under the said Statute, in

• which all the conditions and formalities of the said Statute have _ been complied with, and in which it is sought, amongst other . things, to regulate the wages of persons in the employment of the » Commissioner of Railways of the classes mentioned in the pre-
• ceding paragraph 3 hereof, &e.
• 5. There are industrial unions of workers, comprising the _, persons mentioned in paragraph 3 hereof, registered under the said Statute, but not registered pursuant to sec. 108 thereof, and a large number of persons of the classes mentioned in such para- graph 3 hereof are members of the society.

6. The Commissioner of Railways, acting pursuant to sec. 108 A

" (a) of the said Statute, has made industrial agreements with the

H.C. of A. industrial unions of workers referred to in the preceding pa

bis graph 5 hereof, (which said unions are general unions reg

• . West® under the said Statute) and, although there are some of

eo * members thereof employed by the Commissioner of Railway

amepSoc'e™® yet a great many of the persons in the employment of the s Everts Commissioner of Railways, elegible to become members of Workers ynions, are members of the said society, and one of the 5

aaa unions, to wit, the Amalgamated Society of Engineers, has

ror Wesrers head office in England, and is a world wide union of workers. AUSTRALIA,

7. Upon the industrial dispute referred to in paragraph 4 here coming on to be heard before the Court of Arbitration on the 27t October, 1905, the Commissioner of Railways raised the prelimi ary objection that, owing to the making of the industrial mentioned in paragraph 6 hereof, the employés of th classes as the members of the said industrial unions could not b included in the proceedings, and that no award could be n with regard to such employés, and applied to have such employ struck out of the proceedings. ;

8. The society objected to the application so made by th Commissioner of Railways as aforesaid, and the matter " argued, and the President of the Court of Arbitration in deliv ing the decision of the Court said that, by reason of the exi of the said industrial agreements, there was and could be no dispt between the classes of persons in the employment of the Commi sioner of Railways who belonged to the society of the same cla as those included in the said alleged industrial agreements, and the said Court ordered that all such classes of persons, that is say, wagon and coach-builders, iron and brass-moulders, engi and carriage-builders, should be struck out of the proceedings, refused to consider the question of their wages or the conditi of their employment.

It also appeared that, at the time the motion for a mandam was heard, the arbitration was still pending before the Court: Arbitration, :

The Supreme Court having refused to grant an order application was now made to the High Court for special leave t appeal.

Ewing for the applicant. The motion for a rule nisi for a H.C. or A. mandamus was not premature. It is not necessary to wait fora _1995-

decision before applying fora mandamus. Wherea Court proceeds - \xsrenx

to adjudicate prohibition will lie before it has adjudicated. So AYStax

where a Court denies jurisdiction as to, or refuses to deal with, "7p Soar some of the matters submitted to it, mandamus will lie before the E™PLores

_ Untoy oF decision is given. [He referred to R. v. Judge of Southampton Worxers

County Court and Fisher & Son Lid. (1); R. v. Harwood (2); Const R. y. Registrar of Greenwich County Court (8).] roe Rs

Grirrita C.J. This is an application for special leave to appeal from the Full Court of the Supreme Court of Western Australia refusing to grant a rule nisi for a mandamus to require the Court of Arbitration to proceed to hear and determine an industrial dispute between the applicant society and the Com- missioner of Railways, especially so far as such industrial dispute relates to or concerns workers coming under the headings of wagon and coach-builders, iron and brass-moulders, engineers, and carriage-builders, and to reinstate in the proceedings relating to such dispute all parties coming under such headings. That is the form in which the order refusing the rule is drawn up, but it does not accurately state what took place. The Western Austra- lian Industrial Conciliation and Arbitration Act 1902 allows disputes between the Commissioner of Railways and his employés to be referred to the Court of Arbitration, special provisions in that respect being made by secs. 107 to 109. The applicant society is said to include all the working officers of the railway department except railway engineers. It presented to the Court of Arbitration what is called a petition, under the special pro- cedure laid down as to disputes between the Commissioner of Railways and a union of his employés, by which it asked that the whole of the internal arrangements of the railways might be settled, and all trades and all work whatever in that department might be regulated by that Court. The Act, sec. 109 (3), requires

(1) 65 L.'T., 320. (2) 22L.J.Q.B., 127. (3) 54 L.J.Q.B., 392.

H.C. or A. the petition to set forth " the particulars of the mai

1905. dispute." That matters are in dispute is a condition pre the exercise of the jurisdiction of the Court of Arbitration. the petition came before the Court of Arbitration it is not Y prising that the Court should have inquired as to the extent the dispute which was said to require the settlement by the of the wages and conditions of labour of the whole depart ek whether the whole of those matters were in dispute. In re rexx of the classes of workers coming under the headings of wa and coach-builders, iron and brass-moulders, engineers" carriage-builders, the Commissioner of Railways alleged that thi was no dispute at all, The Court then asked for further inf mation on the subject, and some agreements entered into betwi the Commissioner of Railways and some industrial unions e9 prising workers of those classes were produced. What else to place does not exactly appear, except that it is stated that t Court was of opinion that, "by reason of the existence of agreements, there was and could be no dispute between classes of persons in the employment of the Commissio Railways who belonged to the society of the same class as tho included in such alleged industrial agreements, and the said Cow ordered that all such classes of persons, that is to say, wae

coach-builders, iron and brass-moulders, engineers, and cai builders, should be struck out of the proceedings, and refused consider the question of their wages or the conditions of thi employment." Of course that is not an accurate statement ' what was done. Those persons were not struck out of the p ceedings. They were not parties to the proceedings. The oul parties to the proceedings were the applicant society and th Commissioner of Railways, and the only thing that was done that the Court intimated its intention not to inquire into wages or the conditions of employment of those classes of worker It might be regarded from another point of view as a stril out of those particulars from the petition, which, as I have is required to set forth the particulars of the matters in disp It may be that there was in fact no dispute with those classes: workers. It may be that those classes of workers were conten! that the matter should rest on the construction of those a

ments. Or it may be that by their conduct those classes of persons H. C. or A. allowed the Court to suppose that there was no dispute with saa them. Mr. Ewing contends that it is sufficient for the petitioning Westens society to allege that there was a dispute with that society. We knéw nothing more as to what took place, except that the Court

is said to have come to the conclusion, whether as a matter of

of their employment. An application was then made to the Supreme Court to compel the Court of Arbitration to deal with these matters. Inthe meantime the Court of Arbitration went on with the hearing of the petition, and, so far as appears, may be going on with it still; at any rate, the hearing was not concluded when the application was made to the Supreme Court.

Now, who ever heard of a mandamus issued to a Court during the hearing of a matter requiring it to deal with that matter or to admit a particular class of evidence? Such an application is entirely novel. No appeal lies from a final award or order of the Court of Arbitration, and certainly an appeal does not lie in interlocutory proceedings. The Court, so far from refusing to hear the petition, proceeded to hear it, and may still be hearing it. It is said that the Court may give an incomplete decision. Perhaps it will, but you cannot get a mandamus quia timet because you think the Court is going to give a wrong decision. At common law when an arbitrator by his award omitted to deal with an important part of the matters submitted to him for arbitration, the award might be set aside. Possibly, if the Court of Arbitration does not decide all the matters sub- mitted for its determination, mandamus may lie to compel it to deal with the matters which it has omitted. It will be time enough to determine that question when it arises. But at common Jaw you must wait until the award is given. By Statute certain questions of law may now be raised while the arbitration pro- ceedings are pending, but there is no practice of which we are aware by which a mandamus can be issued to a Court during the hearing of a matter to take into its consideration certain matters which it has indicated its intention not to deal with. The

H.C. or A. matter determined by the Court of Arbitration was in pa 1905. Jeast a preliminary matter of fact. If it was purely a matte

Phe vers fact clearly no appeal lies. If it was a mixed question of fi USTRALIAN " : Amaucau- and law it is very doubtful whether an appeal lies. If the Cor ATED Socrery . _ 7

orRamway declined to entertain certain matters upon an erroneous vie

rete the law, possibly mandamus will lie, but the time for determini

ere thet question has not arrived. It is, we think, extremely i treet vars probable that the Court has come, or will come, to the conelu ror WeSTEEN as a matter of law, that an agreement between the Commi:

of Railways and a small body of employés is conclusive eviden that there is no dispute between the Commissioner of Rail and the whole body of employés. If the Court does so de then it will be time enough to consider whether the Sup em

Court can interfere. At present we see no reason to grant spec

BERTOLINI . : ; 3 2 : APPEI PLAINTIFF, AND GIANINI . ~ , 5 : ni . RESPONDE! DEFENDANT, H.C. oF A. ON APPEAL FROM THE SUPREME COURT OF

PERTH, The case turned solely on questions of fact.

vaaey 13. The judgment of the Supreme Court of Western Australi Gritith c.s., (17th April, 1905), was affirmed.