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R v Connell; Ex parte Hetton Bellbird Collieries Ltd

R v Connell; Ex parte Hetton Bellbird Collieries Ltd

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Case Copied 3 October 1944 53 min read

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CONNELL AND ANOTHER Ex PARTE THE HETTON BELLBIRD COLLIERIES

LIMITED AND OTHERS. National Security-Economic organization-Remuneration " in respect of any employ-

ment"LAlteration by any industrial authority prohibited by Regulations- Coal-mining industry-Disputes-Members of Industrial Federation--Industrial Authorities appointed under statute passed subsequent to Regulations-Applic ability of Regulations-Statutes-Implied repeal-Coal Production (War-time) Act 1944 (No. 1 of 1944), 88. 5, 29-35, National Security (Economic Organiza- tion) Regulations (S.R. 1942 No. 76-1944 No. 52), regs. 4, 16, 17-National MELBOURNE, Security (Coal Mining Industry Employment) Regulations (S.R. 1941 No. 25- 1944 No. 48), regs. 7, 14, 18. National Security-Economic organization-Coal-mining industry-Rates of reminer

ation - Anomalous - Industrial authority - Satisfied - Jurisdiction DecisionProhibition-Award requiring approval of Minister-- Award filed Commonwealth Court of Conciliation and Arbitration--Decision according to equity and good conscience-The Constitution (63 &64 Vict. c. 12), S. 75 (v.)- Coal Production (War-time) Act 1944 (No. 1 of 1944), SS. 31, 32 (1), 34 (1) (c), 35, 40-National Security (Economic Organization) Regulations (S.R. 1942 No. 76-1944 No. 52), regs. 16, 17.

Regulations 16 and 17 of the National Security (Economic Organization) Regulations* prohibited, with certain exceptions, the inclusion by an Industrial Authority in any award of any provision altering in respect of any employ- ment the rates of remuneration applicable to that employment on 10th Feb- ruary 1942.

Held, by the whole Court, that the Central Industrial Authority and the Local Industrial Authority appointed under the Coal Production (War-time) Act 1944 were Industrial Authorities within the meaning of the National

* Statutory Rules 1942 No. 76 as from time to time amended up to and including Statutory Rules 1942 No. 490, since repealed and replaced-see Statutory Rules 1945 No. 11.

69 CLR 408

Security (Economic Organization) Regulations and bound by regs. 16 and 17; these regulations were not impliedly repealed by the Coal Production (War- time) Act 1944 in relation to the Authorities constituted under that Act.

Regulation 17 1 (b) of the National Security (Economic Organization) Regulations provided that an Industrial Authority might alter any rate of remuneration "with the approval of the Minister, if the Industrial Authority

Held, by the whole Court, (1) that to be "anomalous" within the meaning of reg. 17 (1) (6) a rate of remuneration must be incongruous with some general rule; and

2 that an Industrial Authority is not "satisfied" within the meaning of that regulation, SO as to found its authority to alter existing rates, if its opinion is based upon a misconstruction of the regulation.

A Local Industrial Authority appointed under the Coal Production (War- time) Act 1944, after hearing evidence in a dispute in which alteration of rates of remuneration was claimed, stated that he was satisfied that "an anomaly exists" and awarded increased rates of remuneration for certain duties to shift men employed at certain collieries. His award was approved by the Minister in accordance with reg. 17 (1) (b) of the National Security (Economic Organization) Regulations and filed in the Commonwealth Court of Conciliation and Arbitration pursuant to SS.…

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: [1944] HCA 42
Decision Date: 3 October 1944

CaseChat Overview and Summary

The case of *R v Connell; Ex parte Hetton Bellbird Collieries Ltd* involved an application for a writ of prohibition against Mr. James Connell, a Local Industrial Authority appointed under the *Coal Production (War-time) Act 1944*, and the Australasian Coal and Shale Employees' Federation. The dispute concerned a claim by the Federation for increased remuneration for "shiftmen" working in high places or performing specific tasks in certain collieries. The colliery proprietors sought to prohibit the enforcement of Mr. Connell's award, arguing it breached National Security (Economic Organization) Regulations and exceeded his jurisdiction.

The central legal issue before the High Court was whether the Industrial Authorities appointed under the *Coal Production (War-time) Act 1944* were bound by regulations 16 and 17 of the National Security (Economic Organization) Regulations. These regulations generally prohibited Industrial Authorities from altering rates of remuneration applicable on 10th February 1942, unless specific exceptions, such as ministerial approval for "anomalous" rates, were met. The Court also had to determine if Mr. Connell had been properly "satisfied" that the rates were anomalous and if his award had been made within his jurisdiction, particularly concerning the scope of the claim and the evidence presented.

The majority of the Court held that the Industrial Authorities appointed under the *Coal Production (War-time) Act 1944* were indeed "Industrial Authorities" within the meaning of the National Security (Economic Organization) Regulations and were therefore bound by regulations 16 and 17. The Court reasoned that the *Coal Production (War-time) Act 1944* did not expressly repeal these regulations, nor was there a clear implication of repeal. The Court found no necessary inconsistency between the Act and the Regulations, as the Authorities could perform their functions subject to the wage-pegging provisions. Furthermore, the Court found that Mr. Connell had not been properly "satisfied" that the rates were anomalous, as his opinion appeared to be based on a misconstruction of the relevant regulation and the evidence did not support the claim that the rates were incongruous with a general rule.

Consequently, the High Court made absolute the order nisi for prohibition. The Court determined that Mr. Connell's award was made in excess of jurisdiction because he had not been properly satisfied of an anomaly as required by regulation 17(1)(b) of the National Security (Economic Organization) Regulations.

Orders