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R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd

R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd

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Case Copied 16 August 1948 37 min read

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CENTRAL REFERENCE BOARD AND OTHERS

Ex PARTE THIESS (REPAIRS) PTY. LTD. National Security-Regulations-Coal-mining industry-Central Reference Board-

Prohibition-Two companies in same control-One engaged in open-cut coal- mining-Other an engineering company whose principal business was repair of machinery of coal-mining company-Employee of engineering company- Whether engaged in coal-mining industry-The Constitution (63 &64 Vict. C. 12), S. 75 (v.)-National Security (Coal Mining Industry Employment) Regulations (S.R. 1941 No. 25-S.R. 1943 No. 295), regs. 7, 17.

The A Co. conducted open-cut coal-mining operations on land adjacent to which was the engineering shop of the B Co. In the course of its operations the A Co. used earth-moving and excavating machinery it had its own McTiernan JJ. workshop at the site of its operations, and minor repairs to the machinery were effected there by its own staff. When major repairs were necessary the machinery was sent to the B Co.'s shop. By arrangement between the two companies, the B Co. undertook to carry out all these major repairs, and this formed the greater part of its work, but it also undertook general engineering work. Both the B Co.'s shop and the A Co.'s own workshop were under the supervision of a supervising engineer (not an employee of either company), payment for whose services was allocated between the two companies. Both companies were under the control of one man as governing director. X, who was employed by the B Co. in its shop as a fitter, having been dismissed, Board constituted under the National Security (Coal Mining Industry Employ- ment) Regulations. The Board ordered that X be reinstated in his employ-

Held, by Latham C.J., Rich and Starke JJ. (Dixon and McTiernan JJ. dissenting), that the Board should be prohibited from further proceeding upon the order. The matter had no relation to the coal-mining industry, because X was not employed in that industry accordingly, the Board had no jurisdiction over it under the National Security (Coal Mining Industry Employment) Regulations.

R. v. Hickman; Ex parte Fox and Clinton, (1945) 70 C.L.R. 598, referred to.

77 CLR 124

ORDER NISI for Prohibition.

Thiess Bros. Pty. Ltd. was incorporated in New South Wales, and its objects were, inter alia, to undertake the work of excavators, road builders, mining and general earth-moving contractors. In pursuance of these objects it operated earth-moving and excavating equipment, including tractors, bulldozers, scoops, carry-alls, rollers and tip trucks. Pursuant to an agreement with the owner of an (REPAIRS)

open-cut coal mine at Muswellbrook (N.S.W.), the company con- ducted the operations of removing the overburden of soil from the land used as an open cut and excavating the coal beneath the over- burden, using its own earth-moving and excavating equipment. This equipment required constant maintenance and repair. The company carried out all running and minor repairs at the site of the operation of the equipment and for this purpose conducted a work- shop at the open cut. All employees engaged in this workshop and engaged in the operation of the equipment on…

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.

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Details

Case: [1948] HCA 9
Decision Date: 16 August 1948

CaseChat Overview and Summary

The case involved an application for prohibition by Thiess (Repairs) Pty Ltd against the Central Reference Board. The dispute arose when the Board ordered the reinstatement of an employee, Leon Anthony Belmar, who had been dismissed from his position as a fitter with Thiess (Repairs) Pty Ltd. The prosecutor argued that the Board lacked jurisdiction because Belmar was not employed in the coal-mining industry, and therefore the matter was outside the scope of the National Security (Coal Mining Industry Employment) Regulations under which the Board operated.

The legal issue before the High Court was whether the Central Reference Board had jurisdiction to make the reinstatement order. Specifically, the Court had to determine whether Thiess (Repairs) Pty Ltd, and by extension its employee Belmar, were engaged in the coal-mining industry for the purposes of the National Security (Coal Mining Industry Employment) Regulations. This involved considering the nature of the work performed by Thiess (Repairs) Pty Ltd, its relationship with Thiess Bros Pty Ltd (which conducted open-cut coal mining operations), and the definition of the "coal-mining industry" within the context of the regulations.

A majority of the High Court, comprising Latham C.J., Rich and Starke JJ., held that the Central Reference Board did not have jurisdiction. Their reasoning was that Thiess (Repairs) Pty Ltd was an engineering company whose principal business was the repair of machinery, and this work, even though it was predominantly for a coal-mining company, did not constitute engagement in the coal-mining industry itself. The Court distinguished between an industry and a business that provides services to that industry. While the repair work was essential for the coal-mining operations, the substantial character of the enterprise carried on by Thiess (Repairs) Pty Ltd was engineering, not coal mining. The Court also affirmed that Regulation 17 of the National Security (Coal Mining Industry Employment) Regulations, which purported to prevent challenge to the Board's orders, did not confer jurisdiction where none existed and did not preclude the High Court's power to issue prohibition under Section 75(v) of the Constitution.

The order nisi for prohibition was made absolute.

Orders