R v Blackburn; Ex parte

[1953] HCA 55

rnns Discd/Expl

Appl

A

R w k e llih x Mullen w

T^fm lian

HM ingsLtd

^ 16ALD31

89 CLR 461

88 C.L.R.]

OF AUSTRALIA.

125

[HIGH COURT OF AUSTRALIA.!

THE QUEEN

A G A IN ST

BLACKBURN ;

Ex P a r t e TRANSPORT WORKERS’

UNION OF AUSTRALIA.

Indtistrial Arbitration (Cth.)—Conciliation commissioner—Jurisdiction to make

H. C. OF A.

award where dispute terminated after commencement of hearing and prior to

1953.

making award—No application made to withdraw proceedings—Prohibition—

Conciliation and Arbitration Act 1904-1952 (No. 13 of 1904—No. 34 of 1952), Me l b o u b n e ,

s. 38—Conciliation and Arbitration Regulations (S.R. 1947 No. 142—S.R. 1953

June 4, 5.

No. 45), reg. 12.*

Sy d n e y ,

8ept. 9.

Held, by Williams A.C.J., Fullagar, Kitto and Taylor JJ., that a conciliation commissioner, who has entered upon the hearing of an industrial dispute,

Williams A.C.J.,

has no jurisdiction to proceed to the making of an award where, prior to the

Webb,

Fullagar,

making of the award, the dispute has come to an end, notwithstanding that

Kitto and

no application under reg. 12 of the Conciliation and Arbitration Regulations

Taylor JJ.

for leave to withdraw the proceedings has been made, or if made, might be refused, and accordingly, in such circumstances, prohibition will lie to restrain a conciliation commissioner from making an award. Per WebbJ. Prohibition will not lie until an application has been made under reg. 12 and improperly refused.

Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. (1920) 28 C.L.R. 1, distinguished ; and dictum of Cavan Duffy C.J., Rich and Dixon JJ . in Federated Millers and Mill Employees' Association of Australasia v. Butcher (1932) 47 C.L.R. 246, at p. 254, explained.

* Regulation 12 of the Conciliation

Commissioner or upon a consent in

and Arbitration Regulations provides writing to the withdrawal being signed

that “ A proceeding before a Concilia­by each of the parties, filed with the

tion Commissioner may be withdrawn Registrar and approved by the Con­

by the party who initiated the pro­ciliation Commissioner ”.

ceeding by leave of the Conciliation

12G HIGH COURT

[1953.

H. 0. OF A.Or d e r N is i for

P r o h ib it io n .

1953.The Transport Workers’ Union of Australia, an organization of employees registered in accordance with the provisions of the

T h e Q i ie e n

0 . Conciliation and Arbitration Act 1904-1952, on various dates in

Bla ckb iu in ;

the months of July and October 1951, caused a log of claims to

E x

I’ARTE

T ransport be served on numerous employers in the road passenger section

W o rk ers’

of the transport industry in the States of New South Wales,

Union

of

A ustralia .Victoria, South Australia, Western Australia, Queensland and

Tasmania. One employer so served was Pioneer Tourist Coaches

Proprietary Limited of 414 Collins Street, Melbourne.

At all times prior to the service of the said logs of claims the matters the subject of the said logs had been regulated in each State either by awards or determinations made by State industrial authorities or by agreements.

None of the employers so served with the said log having acceded to the claims made therein, the Union applied for a compulsory conference, in pursuance of s. 15 (1) of the Conciliation and Arbi­ tration Act 1904-1952. The conference was held on 10th and 11th December 1951 before Arthur Seaforth Blackburn, Esq., a concilia­ tion commissioner appointed under the said Act, who found that an industrial dispute existed.

The hearing of the dispute commenced on 7th February 1952 and continued with interruptions until 4th December 1952. On that date the conciliation commissioner published his decision to the parties, together with a draft award. The final paragraphs of the decision were as follows : ‘'My decisions upon the other matters, which were left to me to arbitrate upon, appear from the draft award issued to the parties with this decision. I shall refrain from issuing same as a formal award for twenty-one days to enable any of the parties to make written submissions to me as to the wording of the clauses as they appear in the draft and to agree, if possible, upon certain definitions which I have left undrafted.” On 19th December 1952 a discussion on the minutes of the pro­ posed award took place before the conciliation commissioner in the presence of representatives of the parties, in the course of which the conciliation commissioner agreed, at the request of the repre­ sentative of the union, to refer to the Commonwealth Court of Conciliation and Arbitration a question of law which arose, but no form of reference was then or thereafter settled.

On 19th February 1953 the union caused to be sent to every employer upon whom the log of claims had been served a notice in the following form :

88 C.L.R.] OF AUSTRALIA.

127

“ Box 58, Trades Hall,

H..C. or A.

Melbourne,

1953.

19th February, 1953.T h e

Qu e e n

Dear Sir,

V.

Bla ck bu rn

;

The Transport Workers’ Union of Australia hereby notifies you that it entirely withdraws all claims made against you in a Log

Ex PARTE

T ranspo rt W o r k er s’

of Claims to govern wages and working conditions of your employees U n io n oe

in the passenger transport industry.

Au .stralia^

I have today forwarded to Mr. Conciliation Commissioner Black­ burn a copy of this notification, with a request tha t he should not proceed further in the matter.

For and on behalf of the

Transport Workers’ Union of Australia,

J. P. Horan,

Federal Secretary.” On the same day the union sent a letter to the conciliation commissioner which, after setting forth the fact that the letter set out above had been sent to all employers, concluded :—

“ Accordingly, this Union respectfully requests and submits that you should not proceed further in the m atter.”

On or about 4th March 1953 the conciliation commissioner caused to be sent to each of the parties to the dispute a notice in the following form :—

“ The Conciliation and Arbitration Act 1904-1952

No. 6.36 of 1951

In the matter of

Transport Workers Union of Australia

and

J. K. Abbott and Others

(Application for award)

Whereas Transport Workers Union of Australia served a log of claims in this matter upon various employers in the States of Queensland, New South Wales, Victoria, South Australia, Western Australia and Tasmania and whereas the said Transport Workers Union of Australia initiated proceedings before Arthur Seaforth Blackburn, a Conciliation Commissioner appointed under the Conciliation and Arbitration Act, for the purpose of settling the dispute created by the service of the said Log of Claims and the failure of the said employers to agree to the demands in the said Log of Claims and whereas the said Arthur Seaforth Blackburn having heard the representatives of the said Union and of the said employers found that a genuine industrial dispute extending beyond the limits of one State existed in regard to the claims set out in the

128 HIGH COUKT

[1953.

H.0. OF A. gaid Log of Claims and whereas the representatives of the parties to

1953. industrial dispute having conferred by order of the said

T uf. Q ueenArthur Seaforth Blackburn were unable to settle the said dispute

V.and whereas the said Arthur Seaforth Blackburn thereupon

PARTE ’ parties to the said dispute before him and proceeded

T ransport to settle the said dispute by arbitration and whereas upon the 4th

^ ion'̂ ^̂ f December, 1952, the said Arthur Seaforth Blackburn

Australia , issued a decision whereby he settled the said dispute and whereas

the said Transport Workers Union of Australia on or about the 19th day of February, 1953, sent by pre-paid registered post to the said employers a notice that it withdraws all claims made against such employers in the said log of claims and whereas the said Arthur Seaforth Blackburn has decided to hear the represen­ tatives of the parties who may desire to be heard as to whether leave should be granted, pursuant to Regulation 12 under the Act, to the said Union to withdraw the said proceedings so initiated by it consequent upon the service of the said Log of Claims. Now therefore you are hereby notified that if you desire to be heard on the matter you must attend either in person or by a represen­ tative before the said Arthur Seaforth Blackburn on Thursday, the 26th day of March, 1953, at the hour of 10.30 o’clock in the forenoon at Chart House, 392 Little Bourke Street, Melbourne in the State of Victoria.

Dated at Adelaide the 4th day of March, 1953.

A. C. Goldsworthy,

Deputy Industrial Registrar.

This notice is issued at the instance of A. S. Blackburn, Esq.,

Conciliation Commissioner, 45 Flinders Street, Adelaide.”

On 23rd March 1953 the union, by its solicitors, sent to the clerk to the conciliation commissioner a letter which read as follows :— “ Dear Sir,

No. 636 of 1951

Transport Workers’ Union of Australia v.

J. K. Abbott & Ors.

On behalf of the Transport Workers’ Union of Australia, we refer to the Notice herein of the hearing proposed to be held by Mr. Commissioner Blackburn on 26th March, 1953.

As our client does not admit the accuracy of the recital in the notice that on the 4th December, 1952, the Commissioner ‘ issued a decision whereby he settled the said dispute ’ and as it has not made any application to the Commissioner for leave to withdraw any proceedings and consequently does not concede the right of the Commissioner to decide to hear representatives of the parties

88 C.L.R.] OF AUSTRALIA.

129

as to wlietlier sucL leave should be granted to the Union, it considers

H. C. OF A.

that it cannot consistently with its views on these matters attend

1953.

on an application which is described in the manner set out in the T h e Qu e e n

notice and jurisdiction to deal with which is not conceded.

V.

B l a c k b u r n ;

I t is therefore, desired, as a matter of courtesy, to advise that it will not be appearing before the Commissioner at the time and

Ex P A R T E

T r anspo rt W o r k e r s’

place specified.”

U n io n of

A u str a lia .

On 26th March 1953 the conciliation commissioner, in the presence of representatives of the employers said—^

“ Since I issued this summons, I have received a letter—it only reached me this morning—from Messrs. Maurice Blackburn & Company, Melbourne, on behalf of the Transport Workers’ Union, in the course of which they say that the union has not made any application to the commissioner for leave to withdraw any proceedings.

On receipt of a notice from the union that it withdrew all claims it had, or desired to make, against the respondents, I treated that as an intimation that it desired to exercise the right given by the Act and by reg. 12, to withdraw the proceedings.

Consequently I issued notice to the parties, in response to which you are here to-day.

But in view of this letter, which I received this morning from Maurice Blackburn & Company, it does not appear necessary for you gentlemen to put anything to me, as the union is not making any application to withdraw any proceedings.

The proceedings will, therefore, simply go on, and I shall issue an award forthwith, or as soon as I return to Adelaide—it will be typed, sealed, and issued from there.

I think that I should say something in regard to an application which the union representatives made to me upon 19th December last in Adelaide, to refer a question of law to the Court.

Although I myself was of opinion that there was no substance in the union’s contention, I did say at the time that I would refer it to the Court, as they urgently requested me to do so.

I have done all I could to get that matter—the form of the question &c.—settled in the form that the union desired, but have been unable to do so. And even if the union now desired that it still be referred to the Court, I here, now, withdraw my previous intimation that I would refer that question of law to the Court. I shall proceed to issue the award in these proceedings as soon

as possible.”

On 5th May 1953, on the application of the Transport Workers’ Union of Australia, as prosecutor, Fullagar J. granted an order

VOL. LXXXVIII.— 9

130 HIGH COURT

[1953,

H. C. oir A. nisi for a writ of prohibition directed to the conciliation commis-. sioner prohibiting him from further proceeding in the matter of

T h e Qu een alleged industrial dispute and restraining him from making

V. an award purporting to settle the dispute upon the ground “ That,

x̂*̂ PARTE ’ regard to the withdrawal by the Transport Workers’ Union

T ransport of Australia of all claims made by it in the log of claims served

Unton̂ Tp upon the employers, the conciliation commissioner is not empowered

A ustralia , to make an award purporting to settle the industrial dispute or

any part thereof created by the service of the said log of claims and the refusal of the said claims by the said employers.” I t was directed that copies of the order nisi and of the affidavits be served on, among others, Pioneer Tourist Coaches Proprietary Limited of 414 Collins Street, Melbourne.

Gregory Gowans Q.C. (with him G. H. Lush), for the prosecutor. The question raised here has never been decided one way or the other. I t was raised but not decided in Federated Millers and Mill Employees’ Association of Australasia v. Butcher (1) ; see per Gavan Eujfy C.J., Rich and Dixon JJ . (2), Evatt and McTiernan JJ. (3). [He referred to Federated Clothing and Allied Trades Union v. Andrews (4) : Federated Engine-Drivers’ and Firemen’s Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd., per Knox C.J., Gavan Duffy and Starke JJ . (5).] Where a dispute has been created by failure to accede to a claim, the withdrawal of the whole claim ends the dispute, whether withdrawal is made before or after the ascertainment of the dispute by the conciliation commissioner under s. 14 (2) of the Co7iGiliation and Arbitration Act 1904-1952 or the notification to him under s. 14 (3) or (4). The whole claim was withdrawn by the organization. I t was not until Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees’ Association (6) that the Court adopted the view that, although the organization acted, in a representative capacity, it was deemed to be a party to the dispute. [He referred to Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees’ Association, per Starke J. (7).] The position is the same where the organization withdraws as where the men withdraw. [He referred to R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Brisbane Tramways Co. Ltd. [Ao. 2], per Griffith C.J. (8); R. v. Commonwealth Court of Conciliation and

(1) (1932) 47 C.L.R. 246.(6) (1920) 28 C.L.R. 1, at p. 9.

(2) (1932) 47 C.L.R., at p. 254.(6) (1925) 35 C.L.R. 628.

(3) (1932) 47 C.L.R., at p. 266.(7) (1925) 35 C.L.R., at p. 549.

(4) (1924) 20 C.A.R. 710, at p. 712.

(8) (1914) 19 C.L.R. 43, at p. 80.

88 C.L.R.] OF AUSTRALIA.

131

Arbitration ; Ex parte William Holyman d Eons Ltd., per Isaacs

J. (1).] Regulation 12 of the Conciliation and Arbitration

Regulations does not operate to prevent the determination

of the dispute. That is because (a) it is concerned with

v.

procedural matters, (b) it is permissive not restrictive, (c) it operates

”

only to allow withdrawal of proceedings without penalty of dismissal T ranspo rt

or payment of costs, (d) it could not validly operate to keep a

dispute notionally in existence for the making of an award, when,

A u str a lia .

in fact, it had ceased to exist. [He referred to Federated Millers and Mill Employees^ Association o f Australasia v. Butcher, per Starke J . (2).] The duties of the conciliation commissioner expressed in ss. 14 (2) (6), 38, 40 (6) are all subject to the dispute being an existing dispute. A law imposing a duty or conferring a power to make an award in settlement of a difference which no longer exists as a dispute would not be constitutional. I f the terms of the Conciliation and Arbitration Act 1904-1952 are wide enough to impose such a duty or confer such a power they must be read down under s. 15a of the Acts Interpretation Act 1901-1950. [He referred to R. V . Blakeley ; E x parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, per Latham C.J. (3), per Williams J . (4), per Fullagar J . (5).] There was no deter­ mination of the dispute by an award before the claim was with­ drawn. The decision is not an award, and the draft award was incomplete, undated and unsigned. [He referred to Australasian Meat Industry Employees' Union v. Master Butchers' Meat and Allied Trades Federation of Australia (6).]

Dr. E. G. Coppel Q.C. (with him L. H. Williams), for Pioneer Tourist Coaches Proprietary Limited. Once a conciliation com­ missioner is seized of an inter-State dispute, that dispute continues until a t least an award has been made or an agreement certified. The cases on the ambit of the dispute indicate that the dispute con­ sists of the rej ection of the demand, not that it is merely evidenced by that. The word “ withdrawal” has been used in a number of different senses. In some cases the dispute was partially settled. This is not a withdrawal and no inferences can be drawn which are applicable to the present situation. Withdrawal in the present case means an attem pt to discontinue the process of determining the dispute. By withdrawing the log of claims, the prosecutor is only saying “ This is no longer the maximum of our demands ” , [He referred to Federated Millers and M ill Employees' Association

(1) (1914) 18 C.L.R. 273, at p. 290.(4) (1950) 82 C.L.R., at pp. 84-85.

(2) (1932) 47 C.L.R. 246, at p. 255.(5) (1950) 82 C.L.R., at p. 89.

(3) (1950) 82 C.L.R. 54, at p. 70.

(6) (1931) 6 A.L.J. 194.

132 HIGH COURT

[1963.

H.C. OF A.of Australasia v. Butcher, per Gavan Duffy C.J., Rich and Dixon

1953. J J . (1), per Evatt and McTiernan JJ . (2).] A court cannot be deprived of jurisdiction by the action of the parties. [He

T h e Q ueen

V. referred to Federated Engine-Drivers’ and Firemen’s Association of

BLACKBtrRN ;

Ex FARTE Australasia v. Adelaide Chemical and Fertilizer Co. Ltd., per Knox

'1’ransport C.J., Gavan Duffy and Starke JJ . (3); Burwood Cinema Ltd. v.

W o rk ers’ Australian Theatrical and Amusement Employees’ Association (4).]

U nion of

A ustralia .This view is supported by the cases on variation of awards ; see

The Australian Tramway Employees Association v. Commissioner for Road Transport and Tramways (A./S.IT.) (5); Australian Insur­ ance Staffs’ Federation v. Atlas Assurance Co. Ltd. (6).

Gregory Gowans Q.C., in reply.

Cur. adv. vult.

Sept. 9.

'ppe following written judgments were delivered :—

W illiam s A.C.J., F u lla ga r , K itto and Taylor JJ. This is an application on behalf of the Transport Workers’ Union of Australia, an organization of employees in the transport industry registered in accordance with the provisions of the Conciliation and Arbitration Act 1904-19.52, to make absolute an order nisi calling upon a conciliation commissioner appointed under the Act to show cause why a writ of prohibition should not issue prohibiting him from further proceeding in the matter of an “ alleged industrial dispute ” between the union and certain employers. The order nisi was granted upon the ground that “ having regard to the withdrawal by the said union of all claims made by it in the log of claims served upon the employers . . . the conciliation commissioner is not empowered to make an award purporting to settle the industrial dispute, or any part thereof, created by the service of the log of claims referred to and the refusal of the said claims ” by the employers upon which it wms served. I t is common ground that for a considerable time an industrial dispute extending beyond the limits of any one State existed in the road transport industry. The evidence before us shows that between July and October 1951, the union caused to be served on several hundred employers in the road passenger section of the transport industry in a number of States a log of claims relating to the regulation of rates of pay and conditions of employment of employees in that section of the industry, and it is common ground that none of these claims ŵ as

(1) (1932) 47 C.L.R., at p. 254.(4) (1925) 35 C.L.R. 528.

(2) (1932) 47 C.L.R., at p. 256.(5) (1935) 53 C.L.R. 90.

(3) (1920) 28 C.L.R. 1, at p. 9.

(6) (1931) 45 C.L.R. 409.

88 C.L.R.] OF AUSTRALIA.

133

H. C. OF A.

conceded by suck employers.

No agreement having been reached

between the parties, the union filed an application for a compulsory

1953.

conference pursuant to s. 15 (1) of the Act. The conference did T h e Qu e e n

not result in agreement being reached and thereafter the conciliation

V.

B lac k b u r n

;

commissioner, on 7th February 1952, commenced the hearing of E x

P A R T E

T r anspo rt W o r k er s’

the dispute.

The hearing continued at various places for a great

number of days and on 4th December 1952, the commissioner U n io n of

published his decision to the parties together with a draft award. Au str a lia .

The commissioner’s decision indicated to the parties the basis upon

Williams A.C.J.

Fullagar J.

which he had proceeded in preparing the draft award and concluded

Kitto J.

with the following pronouncement: “ My decisions upon the

Taylor J.

other matters, which were left to me to arbitrate upon, appear from the draft aw’ard issued to the parties with this decision. I shall refrain from issuing same as a formal award for twenty-one days to enable any of the parties to make written submissions to me as to the wording of the clauses as they appear in the draft and to agree, if possible, upon certain definitions which I have left undrafted.”

There is no doubt, and it is not disputed, tha t a t this stage the commissioner had ample authority to make an award deter­ mining the dispute and, in one sense, it may be said that by publishing his decision he took one step towards that end. But his decision did not affect, or purport immediately to affect, the rights and obhgations of the parties. He did not make an interim award, nor did he make an award and suspend its operation for a period in order tha t the parties might make appropriate sub­ missions during the period of the suspension. What he did was to indicate generally to the parties the form of award which he proposed to make at a later stage and the reasons which had led him to his various conclusions.

On 19th December 1952, a discussion as to the terms of the proposed award took place before the commissioner in the presence of representatives of the parties. During the course of this dis­ cussion a request was made to the commissioner to refer to the Commonwealth Court of Conciliation and Arbitration a question of law which, it was suggested, arose in the proceedings, but before any further step in the matter was taken the union, on 19th February 1953, caused to be sent to every employer upon whom the log of claims had been served, a notice that the union entirely withdrew all claims made in the log. On the same day the union forwarded to the conciliation commissioner a copy of the notice and submitted in writing that he should not proceed further in the matter. Subsequently, on 4th March 1953, the deputy industrial

134 HIGH COURT

[1953.

H.C. OF A.registrar, at the instance of the conciliation commissioner issued

1953. to the parties a notice which, after reciting a number of facts, notified the parties that the commissioner had decided to hear

T h e Qu een

V. the representatives of the parties who might desire to be heard

B l a c k b u r n ;

as to whether leave should be granted to the union, pursuant to

Ex

PA R T E

T ransport reg. 12 of the

Conciliation and Arbitration Regulations, to withdraw

W o r k er s’

the proceedings “ initiated by it consequent upon the service of

U nion

op

A ustralia .the said log of claims.” To this notice the union replied that it had

'Williams A.C.J.

not made any application for leave to withdraw the proceedings.

Fullagar J.

Kitto J.

On 26th March 1953, however, the matter was placed in the com­

Taylor J.

missioner’s list. On that date the commissioner announced that since the issue of the notice he had received a letter written on behalf of the union in the course of which it was said that it had not made any application for leave to withdraw any proceedings, and that since the union did not propose to make any application to withdraw the proceedings, they would “ simply go on ” and that he would issue an award as soon as he returned to Adelaide. This application is now made to prohibit the commissioner from making an award in the proceedings.

For the union it is contended that no award can be made by a conciliation commissioner unless at the time it is made there is in existence an industrial dispute extending beyond the limits of any one State. Employers who were served with notice of this apph- cation contend, on the contrary, that a commissioner, having once become seized of matters in dispute is authorized, and indeed bound, to proceed to the making of an order or award unless agree­ ment is arrived at between the parties as to the whole of the matters in dispute. (See s. 38.) The choice between these competing contentions obviously involves a consideration of the statutory provisions which confer authority to make awards and orders. The argument for the employers regards the existence of an industrial dispute as the factor which attracts the jurisdiction of the court or of the appropriate conciliation commissioner, and proceeds from that point to the proposition that once a dispute has become, as it were, a lis pendens a commissioner may, within the scope of the matters committed to him by the statute, make an award dealing with the matters involved in the dispute. This argument we would find more attractive if proceedings under the Act bore any real resemblance to proceedings in ordinary courts of law and if, indeed, the powers conferred upon conciliation commissioners were analogous in substance to the judicial power of deciding issues between parties. I t is, of course, true that the

88 C.L.R.] OF AUSTRALIA.

135

existence of a dispute is necessary, first of all, to attract tlie juris­

H. C. OF A.

diction of a conciliation commissioner. But once tlie jurisdiction

1953.

is attracted it is the dispute wliicli comes before tbe commissioner T h e Q u een

as a conciliator or as arbitrator. He is bound “ carefully and

V.

B lac k b u r n

;

expeditiously ” to “ hear, inquire into and investigate every Ex PARTE

industrial dispute which is before . . . him and all matters

T ranspo rt W o r k er s’

affecting the merits of the dispute and the right settlement thereof ”

U n io n of

(s. 36 (1) ). Further, he is bound to “ make all such suggestions

A u str a lia .

and do all such things as appear to him to be right and proper for

Williams A.C.J.

TuUagar J.

reconciling the parties and for inducing the settlement of the dis­

Kitto J.

pute by amicable agreement ” (s. 36 (2) ). Where an agreement

Taylor J.

between all or any of the parties as to the whole or any part of the dispute is arrived at, he-may, pursuant to s. 37 certify a memorandum of the terms of the agreement whereupon the mem­ orandum is to “ have the same effect as, and be deemed to be, an award for all purposes of ” the Act. Pursuant to s. 38, if no agreement between the parties as to the whole of the dispute is arrived at, he is bound by an order or award to “ determine the dispute, or . . . so much of the dispute as is not settled by the agreement ” . Functions such as these are most unlike those performed by the ordinary courts of law in the exercise of the juris­ diction conferred upon them. In the exercise of their jurisdiction such courts determine the rights and obligations of the parties to an action or suit and such rights and obligations, in general, fall to be determined as at the commencement of the proceedings. We say “ in general ” because in most courts matters of defence arising after action brought may be raised in accordance with special rules. But no assistance in solving the present problem is derived from a consideration of the jurisdiction of ordinary courts of law and the manner in which it is exerciseable for the power given to conciliation commissioners is not a power to investigate and deter­ mine existing rights and obligations between parties but a power to inquire into and investigate industrial disputes and failing agreement between the parties, to determine them by the makmg of orders or awards. This being so, we confess that we cannot see how the power can be exercised when no dispute exists or at a time when a previously existing dispute has come to an end.

On this point we were referred to the decision in Federated Engine-Drivers' mid Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. (1), where in the joint judgment of Knox C.J., Gavan Duffy and Starke J J . the view was expressed that the jurisdiction of the court having once vested was

(1) (1920) 28 C.L.R. 1.

136 HIGH COURT

[1953.

H. C. OF A.

not divested by the events established in that case. Considerable

1953.reliance was placed upon the words we have italicized, but nothing their Honours said had any application to the problem presented

T h e Queen

V. by the facts of this case. They did not say, or even appear to say,

B l a c k b o k n ;

Ex EAKTE that an award might be made at a time when the dispute which

T ransport originally attracted the jurisdiction of the court had wholly ceased

W o r k er s’

to exist. In that case the court was concerned with the problem

U nion

of

Austra lia .which arose when a dispute extending beyond the limits of any

Williams A.C.J.

one State had, partly by the making of awards and partly by

Fullagar .1.

agreements, been settled in all but one State.

“ I t was ”, as their

Kitto J.

Taylor J.Honours said, “ contended that the dispute referred into the

Arbitration Court ceased to exist as an inter-State dispute, and was in fact determined or put an end to, or, in the alternative, lost its inter-State character and so ceased to be within the juris­ diction of the Arbitration Court, so soon as awards or agreements certified and filed pursuant to sec. 24 were made leaving respondents in only one State to be dealt with. I t was said that one or other of these consequences must follow as soon as the dispute ceased to proj ect itself beyond the limits of some one State. The argument is untenable. The court became seised of a dispute extending beyond the limits of one State, and it then became its duty to determine that dispute in so far as no agreement between the parties was arrived at (see sec. 24). The fact that the Court or the parties on the road to or in process of settlement of the dispute made some awards or some such agreements, which did not together cover the whole area of the dispute, did not dispose of or end the dispute or change its character. The jurisdiction of the Court having once vested is not divested, and the duty of the Court is not completely performed by the partial settlement of the m atter” (1). Clearly the jurisdiction of the court to determine the whole dispute was not divested by the exercise of the power of determination or by the making of agreements in relation to the dispute in all States but one. The dispute which remained was not a new dispute but the “ undetermined ” residue of the original dispute.

We were also referred by counsel for the employers to a passage in the joint judgment of Gavan Dujfy C.J., Rich and Dixon JJ . in Federated Millers and Mill Employees’ Association of Australasia v. Butcher (2). There it was said : “ There are two answers to the contention that the ambit of the original dispute was restricted by reason of the subsequent service of the employers’ logs. The first answer is that when the Court of Conciliation and Arbitration

(1) (1920) 28 C.L.R., at p. 9.

(2) (1932) 47 C.L.R. 246.

88 C.L.R.] OF AUSTRALIA.

137

takes cognizance of an industrial dispute defined in extent and

H. C. O F A.

subject matter no subsequent expressions by the parties of their

1953.

readiness to concede parts of demands and no communication of terms

T h e Qu e e n

and cotiditions to which they are willing to submit can operate to limit

V.

B la ck bu rn

;

the jurisdiction of the Court.

Sec. 24 of the Act proceeds upon the

Ex PARTE

view that an industrial dispute of which the Court has cognizance

T ranspo rt W o r k er s’

being a matter of public concern, is to be settled by or under the U n io n of

supervision of the Court either by means of an award or an agreement A ustra lia .

certified by a Judge or a Conciliation Commissioner. The em­

Williams A.C.J.

Fullagar J.

ployers’ logs are no more than communications of the employers’

Kitto J.

desires in respect of the regulation of the industrial relations between

Taylor J.

the parties.

The subjects included in the rival proposals may not

be identical, but they cover the same field. There is nothing in the nature of a withdrawal by one party from the industrial dispute or a retractation of his demands or refusals.” (1).

With the statement which we have italicized we respectfully agree but that their Honours were not speaking of a case such as the present and that the statement was not intended to refer to such a case is made obvious by their comment that there was “ nothing in the nature of a withdrawal by one party from the industrial dispute or a retractation of his demands or refusals ” . Indeed, it follows, we think, from their reasons that their Honours considered that the extent of a dispute at the tim e of the making of an award was a vital matter for consideration and, if this is so, the existence of a dispute at the time the jurisdiction is exercised is equally vital.

Accordingly, we are of the opinion that if the dispute which existed between the parties has come to an end the conciliation commissioner has now no power to proceed further with the making of the proposed award. There was no real suggestion that the dispute continued after the union purported, by its notice to the employers affected, to withdraw entirely all claims made in the log previously served. The question whether or not it did continue is, of course, a question of fact but the only inference open on the evidence before us is that the dispute did not thereafter continue. I t seems clear that, just as a dispute may originate by the making of claims and the rejection thereof, it will terminate upon one party withdrawing its claims entirely whether such withdrawal takes place before or after the jurisdiction of a conciliation commissioner or the court has been invoked. But just as a dispute must be a genuine dispute, so a withdrawal must be a genuine withdrawal and not made merely pro forma for the purpose of endeavouring to remove the matter

(1) (1932) 47 C.L.R., at p. 254.

138 HIGH COURT

[1953.

H. C. OF A.

in dispute from the jurisdiction of the court or conciliation commis­

1953.sioner by making it appear that the dispute is at an end. There is,

T ub Queenhowever, nothing in the facts before us to indicate that the with­

V.drawal, which on its face was absolute, was not genuine or that it

B lackburn ;

was subject to any unexpressed reservations.

E x

I’ARTE

T ransbort

So far we have not referred to the provisions of reg. 12 of the regulations made pursuant to the Act. This regulation provides

W ork ers’

U nion

of

A ustralia .that a proceeding before a conciliation commissioner may be with­

AVilliams A.C.J.

drawn by the party who initiated the proceeding by leave of the

Fullagar J.

Kitto J. conciliation commissioner or upon a consent in writing to the with­

Taylor J. drawal being signed by each of the parties, filed with the registrar and approved by the conciliation commissioner. Whatever effect the requirements of this regulation may have upon the rights of parties in proceedings under the Act it is clear that it does not, and cannot, so operate as to empower the court or a conciliation commissioner to make an award in settlement of a non-existent dispute. In a case such as the present the jurisdiction of the conciliation commissioner to make the proposed award depends upon the existence of an appropriate dispute and the circumstances that an application for leave to withdraw the proceedings has not been made—or that such an application, if made, might be refused— is immaterial.

In the circumstances, and, although it is unfortunate that the time and expense involved in the proceedings before the commis­ sioner should have been wasted, we are of the opinion that the order nisi should be made absolute prohibiting the respondent from making any award purporting to determine the dispute the subject of the proceedings referred to in the order nisi.

W e b b J. The question that arises on this application to make absolute an order nisi for prohibition to Mr. Conciliation Commis­ sioner Blackburn to restrain him from making an award for the passenger section of the transport industry in several States is whether an inter-State industrial dispute must be taken to have terminated and the commissioner to have been without jurisdiction from the time the employers were notified by the prosecutor union that the claims against them were withdrawn ; or whether it was necessary that the leave of the commissioner to withdraw the claims should have been obtained under reg. 12 of the regulations made under s. 124 of the Conciliation and Arbitration Act 1904-1952. I t appears that at the time of the notification of the withdrawal the award had not been signed by the commissioner.

88 C.L.R.] OF AUSTRALIA.

139

H. C. OF A.

Regulation 12 provides : “ A proceeding before a Conciliation Commissioner may be withdrawn by the party who initiated the

1953.

proceeding by leave of the Conciliation Commissioner or upon a T h e Qu e e n

consent in writing to the withdrawal being signed by each of the

V.

B l a c k b u r n ;

parties, filed with the Registrar and approved by the Conciliation E x PARTE

Commissioner ” ,

T r anspo rt W o r k er s’

The claimant union did not make application for leave to with­ draw the claims ; but it sent to the commissioner a copy of its

U n io n of

Au str a lia .

letfer to the employers withdrawing the claims, and requested Webb J.

the commissioner to proceed no further.

An inter-State industrial dispute may be created by the service of claims on the employers and the refusal of the employers to accede thereto. That is the usual method of creating such disputes and providing the necessary jm*isdiction to make an award under the Act. But a commissioner must be satisfied that the dispute exists before he proceeds to settle it by an award. The mere production of a copy of the claim and the refusal is not necessarily conclusive of the existence of the dispute. A determination by the commissioner that it exists is required as a practical if not as a legal necessity. So, too, the mere proof of service of the with­ drawal of the claims on the employers is not conclusive that the dispute is a t an en d ; and a determination of the commissioner that it has terminated, manifested by his decision to give leave to withdraw the claim, is required in the interests of orderly procedure in industrial regulation. Hence the need for reg. 12.

I do not suggest that it is within the regulation-making power in s. 124 of the Act, or within the power conferred by s. 51 (xxxv.) or the incidental power conferred by s. 51 (xxxix.) of the Commonwealth Constitution, to provide that once a commissioner has entered upon the hearing of claims he may make an award,

although the dispute ends before he makes the award.

But reg. 12

does not go that far.

I f a commissioner wrongly refuses leave to

withdraw claims and proceeds to make his award nothing in reg. 12 prevents him from being restrained in prohibition proceedings. He could not retain jurisdiction by an improper refusal of leave. But the application for leave should be made to him under reg. 12 ; and until it is made and improperly refused, I think this court is not bound to interfere, and in the exercise of its discretion should not interfere, at the instance of this prosecutor. Another prosecutor, say a person prosecuted for a breach of the award, asserting its invalidity of the award as unconstitutional might well be in a different and more favourable position to sustain that challenge.

140 HIGH COURT

[1953.

H. C. OF A.

If the prosecutor ignored a rule of this court he could not hope to

1963.succeed, no matter how clear the invalidity of the award.

I would discharge the order nisi for prohibition.

T h e

Qu e e n

V.

B l a c k b u r n ;

Order absolute for writ of prohibition directed to the

Ex

PA R TE

T ransport

respondent prohibiting him from making any

W o rk ers’

award purporting to determine the dispute the

U nion

of

Australia .

subject of the proceedings referred to in the order

nisi. No order as to costs.

Solicitors for the prosecutor, Maurice Blackburn d Co.

Solicitors for Pioneer Tourist Coaches Proprietary Limited,

Moule, Hamilton <& Derham.

R. D. B.