Jacka v Lewis - [1944] HCA 6

JACKA AND OTHERS

RESPONDENTS, LEWIS High hCourt-AppeatJurisdiction-Commonwealth Court of Conciliation and Arbitra- H. C.

lion-Judicial order-The Constitution (63 &64 Vict. C. 12), S. 73 (ii.) )-Common wealth Conciliation and Arbitration Act 1904-1934 (No. 13 of 1904-No. 54 of 1934), S. 31 (1).

The jurisdiction of the High Court under S. 73 (ii.) of the Constitution to hear and determine an appeal from the Commonwealth Court of Conciliation and Arbitration made in the exercise of its judicial power is not excluded and McTiernan by S. 31 (1) of the Commonwealth Conciliation and Arbitration Act 1904-1934.

So held by Latham C.J., Rich and Starke JJ, (McTiernan J. dissenting). MOTION.

Arthur Lewis, who at all material times was a member of the Victorian branch of the Arms, Explosives and Munition Workers' Federation of Australia (which was an organization registered under Part v. of the Commonwealth Conciliation and Arbitration Act 1904- 1934), made an application by summons under S. 58E of that Act to the Commonwealth Court of Conciliation and Arbitration, the respondents being the Victorian branch above mentioned, its president, secretary, executive committee and the members of the executive committee. Judge Kelly made an order on the applica- tion directing the respondents to observe the rules of the organization by recognizing, accepting and submitting to a ballot for the office of president of the Victorian branch and to a ballot for the office of sub-branch delegate to the Federal Council of the organization the nomination of the applicant.

68 CLR 456

The respondents gave notice of appeal to the High Court. The applicant moved the High Court for an order that the notice of appeal be set aside on the ground that the High Court had no jurisdiction to entertain the appeal.

Fraser, for the applicant. If the High Court has jurisdiction in this matter, it must be on the basis that S. 73 (ii.) of the Constitution has not been excluded by legislation. However, it is submitted that S. 73 (ii.) is excluded by S. 31 1 of the Commonwealth Concitia- tion and Arbitration Act 1904-1934. This submission as to the effect of S. 31 1 is supported by the history of that sub-section. In its original form, in the Act of 1904, S. 31 (1) provided: "No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever." By Act No. 6 of 1911, S. 14, the sub-section was amended by the insertion of (1) the phrase order" after "award" and (2) a provision that the award or order should not be subject to prohibition or mandamus. By Act No. 18 of 1914, S. 11, the provision relating to prohibition and mandamus was extended to include injunction and S. 21AA was inserted, making provision for the determination of questions of law by the High Court. Act No. 43 of 1930, S. 24, inserted the words " Except as in this Act provided' at the beginning of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Jacka v Lewis and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1944] HCA 6
Decision Date: 23 March 1944

CaseChat Overview and Summary

This case concerned a motion before the High Court of Australia to set aside a notice of appeal. The applicant, Arthur Lewis, sought to have the appeal set aside on the grounds that the High Court lacked jurisdiction to hear it. The appeal was from an order made by Judge Kelly of the Commonwealth Court of Conciliation and Arbitration, which directed the respondents to observe the rules of their organisation by accepting nominations for office and submitting to a ballot. The respondents, including William Jacka, were members of the Victorian branch of the Arms, Explosives and Munition Workers' Federation of Australia.

The central legal issue before the High Court was whether the jurisdiction of the High Court to hear appeals from the Commonwealth Court of Conciliation and Arbitration, as provided by section 73(ii) of the Constitution, was excluded by section 31(1) of the Commonwealth Conciliation and Arbitration Act 1904-1934. The applicant argued that section 31(1) effectively prohibited appeals to any court, including the High Court, from orders of the Arbitration Court. The respondents contended that section 31(1), when properly construed, did not exclude appeals to the High Court, particularly when the Arbitration Court was exercising its judicial power.

A majority of the High Court (Latham C.J., Rich and Starke JJ.) held that the jurisdiction of the High Court under section 73(ii) of the Constitution to hear and determine an appeal from an order of the Commonwealth Court of Conciliation and Arbitration made in the exercise of its judicial power was not excluded by section 31(1) of the Commonwealth Conciliation and Arbitration Act 1904-1934. The majority reasoned that the wording of section 31(1), particularly the inclusion of the phrase "other than the High Court," meant that while appeals to other courts were prohibited, appeals to the High Court were preserved. They noted that the history of the section suggested an intention to clarify the High Court's constitutional power under section 75(v) rather than to abolish its appellate jurisdiction. McTiernan J., dissenting, concluded that the Parliament had intended to exclude appeals to the High Court and that the wording of section 31(1) achieved this.

The motion to set aside the notice of appeal was dismissed with costs.

Orders