Ex parte McLean

Case [1930] HCA 12


43 CLR 472

Ex PARTE McLEAN.

ON REMOVAL FROM THE SUPREME COURT OF Constitutional Law-Inconsistency between Commonwealth law and law of State

Award of Commonwealth Court of Conciliation and Arbitration-Agreement pursuant thereto between employer and employee-Alleged neglect by employee SYDNEY,

to fulfil contract-Conviction under State lawProhibitionThe Constitution (63 &64 Vict. c. 12), sec. 109-Commonwealth Conciliation and Arbitration Act 1904-1928 (No. 13 of 1904-No. 18 of 1928), secs. 30, 31, 38, 44-Judiciary MELBOURNE,

Act 1903-1927 (No. 6 of 1903-No. 9 of 1927), secs. 38A, 40, 40A-Masters ar Servants Act 1902 (N.S.W.) (No. 59 of 1902), sec. 4*. Act 1902 (N.S.W.) the defendant was convicted and fined for neglecting to fulfil the contract made between the informant (his employer) and himself in pursuance of an award, made by the Commonwealth Court of Conciliation and Arbitration, which bound both parties and required them to perform the contract. The very same conduct by the same persons was therefore punish- able, but somewhat differently, under the Commonwealth Conciliation and

without reasonable cause, before the (N.S.W.), sec. 4, provides that " Any

term of his contract has expired or servant who contracts with any person to serve him for any time or in any

pleted, whether such contract is in manner, or to perform for him as such

writing or not, or neglects to fulfil the same, or is guilty of any other mis- price, and does not enter into his service or commence his work according to

thereof, shall be liable to a penalty not his contract, such contract being in

exceeding ten pounds or in lieu thereof, writing and signed by the parties

at the discretion of the convicting thereto, or any servant having entered

justices, shall forfeit the whole or such part of the wages then due, as the work who absents himself therefrom,

justices shall think fit."

43 CLR 473

Held, that the State Act was invalid, pro tanto, by virtue of sec. 109 of the Constitution and that the conviction was therefore bad.

Clyde Engineering Co. v. Cowburn, (1926) 37 C.L.R. 466, followed. Semble, the matter was not one which involved any question as to the limita- tions inter se of the constitutional powers of the Commonwealth and the State within secs. 39A and 40A of the Judiciary Act 1903-1927, but did arise under the Constitution (sec. 109) or involve its interpretation, and could be removed into, and determined by, the High Court under sec. 40 of the Judiciary Act

RULE NISI for writ of prohibition removed from the Supreme Court of New South Wales.

Frederick Firth, a grazier of Lockslea near Warren, New South Wales, laid an information against James McLean alleging that the defendant, a shearer, being a servant as defined by the Masters and Servants Act 1902 (N.S.W.), and having contracted with Firth to perform for him as such servant a certain work, to wit, shearing, at Lockslea near Warren aforesaid and having commenced such work did neglect to fulfil such contract contrary to the Act in…

Continue reading Ex parte McLean

Sign in free to access the full text

Details
AGLC
Ex parte McLean [1930] HCA 12
Case
[1930] HCA 12
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Frederick Firth, an employer, and James McLean, a shearer. McLean was convicted under the New South Wales Masters and Servants Act 1902 for neglecting to fulfil his shearing contract with Firth. Both parties were also bound by an award of the Commonwealth Court of Conciliation and Arbitration, which had been made pursuant to the Commonwealth Conciliation and Arbitration Act 1904-1928. McLean sought a writ of prohibition from the Supreme Court of New South Wales to prevent further proceedings on the conviction, arguing that the State law was invalid due to inconsistency with the Commonwealth legislation. The Supreme Court, considering the matter involved constitutional powers, removed the case to the High Court of Australia.

The central legal issue before the High Court was whether the New South Wales Masters and Servants Act 1902 was rendered invalid, in whole or in part, by Section 109 of the Australian Constitution due to its inconsistency with the Commonwealth Conciliation and Arbitration Act 1904-1928 and an award made thereunder. Specifically, the court had to determine if the State law, which provided penalties for a servant neglecting to fulfil a contract, was inoperative because the same conduct was regulated by a Federal award and the Commonwealth Act.

The High Court held that the State Act was invalid to the extent of its inconsistency with the Commonwealth legislation. The court reasoned that the Commonwealth Conciliation and Arbitration Act, by empowering the Commonwealth Court to make awards that prescribe the terms of industrial relations and the consequences of their breach, intended to provide an exclusive regime for such matters. When a Federal award, made under this Act, completely covers the subject matter of industrial relations, including the performance of employment contracts, any State law that purports to regulate the same conduct, even with different penalties, is inconsistent and therefore invalid by operation of Section 109 of the Constitution. The court followed the principles established in *Clyde Engineering Co. v. Cowburn*.

Consequently, the High Court made absolute the rule nisi for a writ of prohibition, quashing the conviction of James McLean. The court found that no offence had been committed against State law, as the State Act was inoperative in this instance due to its inconsistency with the paramount Commonwealth legislation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.