Newcastle Coal Company Ltd v Firemen's Union (Industrial Union of Employes)

[1908] HCA 48

466 HIGH COURT

[1908.

[HIGH COURT OF AUSTRALIA.]

NEWCASTLE COAL COMPANY LTD. AND)CO

[A ppellants ;

OTHERS

AND

THE FIREM EN’S UNION ( In d u s t r ia l

U nions

,

I R espondents.

OF E m plo y es) AND OTHERS . .

. /

ON APPEAL f r o m THE SUPREME COURT OF

NEW SOUTH WALES.

H.C. OF A, Appeal—Special leave—Recommendation by Industrial Court—Appointment of

1908. members of Wages Board—Ministerial proceeding—Prohibition—Industrial Disputes Act 1908 (N.S. IF.) (A'o. 3 of 1908), secs. U-17.

Aufjusl 10.

The Supreme Court having refused to grant a rule nisi for a writ of prohi­

Griffith C. J.,

Barton, bition against further proceeding on a recommendation to the Governor by

Isaacs and the Industrial Court for the appointment of the members of a Wages Board

Higr^ns JJ.

under sec. 17 of the Industrial Disputes Act 1908, on the ground that the pro­ ceeding in the Industrial Court for the appointment of a Board was not a judicial proceeding, special leave to appeal from that decision was refused by the High Court on the ground that the decision was right.

Special leave to appeal from the decision of the Supreme Court (Ex 2/arte

Newcastle Coal Co., (1908) 8 S.R. (N.S. W.), 33.5), refused.

M o tio n for special leave to appeal from a deci.sion of the Supreme

Court of New South Wales.

Secs. 14 and 17 of the Act No. 3 of 1908 as far as material are as follows :—

than the chairman shall be made on

the recommendation of the Industrial

14 (1). On application to the Indus­ trial Court by . . . (c) an industrial

Court from persons elected by the em­

ployers and employes respectively of

union whose members are . . . em­the industry or group of industries,

ployers or employes . . . the saidand the provisions of Schedule two

Court, if satisfied either by oral evi­shall apply to such election. Provided

dence or affidavit that the application is that in any case which the Industrial

bond fide, may recommend to the Minis­Court considers to be one of urgency ;

ter that a Board be constituted for an . . . any such appointment may be

industry or group of industries, and made by the Governor, on the recom­

thereupon the Minister shall direct a mendation of the said Court, without

Board to be constituted accordingly.

election, in which case the person so

17. The members of a Board shall be appointed by the Governor. The

appointed shall be the person recom­

mended by the said Court.

appointment of the members other

6 C.L.R.] OF AUSTRALIA.

467

H. C. OF A.

The applicants were a number of colliery companies carrying on operations in the Newcastle district. The respondents, an

1908.

N ewcastle Coal Co.

industrial union of ernploye.s, applied to the Industrial Court

under sec. 17 of the Industria l Disputes Act 1908 for the Ltd .

V.

appointment of a Wages Board without election for the industry

F tremen’s

of engine-drivers, firemen, and pumpers employed in the New­

U nion .

castle collieries. The colliery companies of the district took the objection that the Industrial Court had no jurisdiction to recom­ mend the appointment of a Board for that section of the coal mining industry. The Court held tliat it had jurisdiction and postponed the matter for further consideration. The companies then moved the Supreme Court for a rule n is i for a prohibition restraining the Court and the union from further proceeding in the matter of a recommendation to the Governor. The Supreme Court refused to grant a rule on the ground that the proceeding in the Industrial Court was not a judicial proceeding.

From this decision the colliery companies now moved for special leave to appeal.

./. L. Campbell, for the appellants. The application for a Board was made upon notice in accordance with the regulations made under sec. 61, sub-sec. {Ic) of the Industria l Disputes Act 1908. The Board asked for was not a Board within the Act, and, there­ fore, the Industrial Court had no juri.sdiction to make any recom­ mendation with re.spect to it. The applicants were neither an industry nor a group of industries under the Act. The Act contemplated only one Board for the colliery employes in the Newcastle district, not one for each branch of those employes : see Schedule 1. “ Industry ” is any occupation in the second column of the Schedule; sec. 4. Under the heading “ Board ” there is “ Newcastle Collieries,” and opposite that in the second column is a comprehensive enumeration of all persons employed in coal mines. The scheme of the Act is one Board for one

industry.

[He referred to sec. 5.]

[Gr if f it h C. J.— Would not quo warranto be the proper remedy, as soon as a Board, or so-called Board, not authorized by this Act, attempts to exercise the functions of a Board ? What judicial pi'oceeding is there to be prohibited ?]

468 HIGH COURT

[1908.

H. C. OF A.

Tlie deci.sion to recommend a Board witiiout election is judicial.

1908.         jj. jii-i-ived at after hearing the evidence of both parties. 'I'lie

N ewcastle persons atlected are entitled to come for a jiroiiihition at the

Coal Co.

Ltd .earliest opportunity if the Court is a.s.suming a jurisdiction wliich

V.

the Act has not conferred upon it.

F irem en’s

U nion .[G r if f it h C.J.—You are not entitled to a decision until the

question lias really arisen. Why slioukl we assume that the Industrial Court will do otherwise than recommend a Board for the industiy in accordance with the Statute ?]

I t has alreadj’ decided that there may be .sectional Boards. By that decision the appellants are seriously jJvejudiced. A multi­ plicity of Boards will be an intolerable burden to employers.

[ H ig g in s J.—The result of tlie.se proceedings before the Indus­ trial Court would not be to order you to do anything.]

The ^Minister is bound to ajipoint a Board if there is a recom­ mendation, and if a Board is apjiointed it is to be presumed to have been legally appointed: sec. 24.

[G r if f it h C.J.—That only applies if it is a Board. If a Board attempts to do .something not allowed by the Act, or if a Board not lawfully ajipointed attempts to exercise the functions of a Board, you can apply for prohibition or quo warranto.]

The appellants are entitled to jirevent that stage being reached ; Rcq. V. Local Government Board (1). The Industrial Court has no jurisdiction to entertain such an application.

G r if f it h C.J. We are all of opinion that the proceeding sought to be restrained, which is merely a recommendation by the Indu.strial Court to the Governor, cannot be regarded as a judicial proceeding. If the recommendation is unauthorized by law, and the Governor purports to create a Board which he is not authorized by the Statute to create, there are other remedies open to the appellants.

We agree with the Supreme Court that this is not a case for prohibition, and .special leave to appeal must be refused.

Special leave refused.

Solicitors, for the appellants, Sparke & M illard by Sparke &

Angus.

C. A. W.

(1) 10 Q.B.D., 309, at p. 321.