R v Evatt; Ex parte

[1974] HCA 56

HIGH COURT OF AUSTRALIA

Menzies, Gibbs, Stephen and Mason JJ. (THE RIGHT HONOURABLE MR. JUSTICE MENZIES died before judgment was delivered in this case.)

THE QUEEN v. EVATT; Ex parte MASTER BUILDERS' ASSOCIATION (N.S.W.)

(1974) 132 CLR 150

18 December 1974

Conciliation and Arbitration (Cth)

Conciliation and Arbitration (Cth)—Industrial arbitration—Organization—Deregistration—Members of deregistered organization granted leave to intervene at hearing of industrial dispute—Whether within power of Conciliation and Arbitration Commission—Prohibition—Conciliation and Arbitration Act 1904-1973 (Cth), ss. 36, 40.

Decision

December 18.
THE COURT delivered the following written judgment:-
This is the return of an order nisi for prohibition directed to a deputy president of the Australian Conciliation and Arbitration Commission. (at p151)

2. There are pending in the Commission four proceedings which relate to industrial disputes that have been found to exist between The Master Builders' Association of New South Wales ("the M.B.A.") on the one hand and each of four trade unions (registered as organizations under the Conciliation and Arbitration Act 1904-1973 (Cth) ("the Act")) on the other. The disputes concern a log of claims which has been served on the M.B.A. by each of the unions. The log is in the form of an award - the Building Industry Award - and seeks certain minimum wages and working conditions for persons employed in the classifications defined in the log who, speaking generally, were tradesmen employed in the building industry, but not builders' labourers. On 2nd July 1974 the four proceedings were being heard together. On that day application was made by counsel for leave to intervene on behalf of the Australian Building Construction Employees and Builders' Labourers' Federation ("the B.L.F.") which, counsel said, "is not a registered organization but . . . is composed of 35,000 individual persons who customarily and presently follow the calling of builders' labourer". In fact the B.L.F. had been an organization registered under the Act but its registration had been cancelled pursuant to an order of the Australian Industrial Court made on 21st June 1974. The application was opposed by the M.B.A. and by certain other persons to whom leave to intervene had previously been granted but was supported by the four unions. After hearing argument the learned deputy president reserved her decision. On 9th July 1974 she gave judgment; she said that she had formed the view that "persons who are and are entitled to be members of the B.L.F. in accordance with its rules are persons with a real and substantial interest in the subject matter of the disputes before the Commission" and that she was prepared "to grant leave to intervene to that aggregation of persons being persons who on 2nd July 1974 constituted the membership of the Builders' Labourers' Federation in accordance with the rules of that association and who remain members of that association". She added: "As in the case of the instrumentalities to whom leave to intervene was granted, participation on behalf of interveners in conferences called by the Commission is and will be subject to my direction." The prohibition sought is to prohibit her from proceeding further upon the leave granted to the "aggregation of persons" to intervene in the four proceedings. (at p152)

3. Although the jurisdiction of the Commission is strictly limited both by the Act and by the Constitution, within the limits of its jurisdiction it is given a fairly free hand in matters of mere procedure. By s. 40 of the Act it is provided, inter alia:

"In the hearing and determination of an industrial dispute or in any other proceedings before the Commission - (a) the procedure of the Commission is, subject to this Act and the regulations, within the discretion of the Commission; . . . "

The only provision of the Act and regulations that deals with the intervention in a matter before the Commission of persons who are not parties to the dispute is s.36, which provides as follows:

"36 (1) The Minister may, on behalf of the Commonwealth, by giving to the Registrar notice in writing of his intention so to do, intervene in the public interest in a matter before the Commission under sub-section (1) of section thirty-one of this Act or under either of the last two preceding sections. (2) The last preceding sub-section shall not be construed as limiting the power of the Commission to grant leave to a person or organization to intervene in any matter before the Commission, but that power shall not be exercised except in a case where the Commission is of the opinion that it is desirable that a person or organization should be heard."

Although s. 36 (2) does not itself confer on the Commission any power to grant leave to intervene, it recognizes the existence of such a power in the Commission, and proceeds to place a restriction on that power, by forbidding its exercise except in a case where the Commission is of the opinion that it is desirable that a person or organization should be heard. (at p152)

4. It was submitted on behalf of the M.B.A. that the effect of the order of the learned deputy president is to give leave to intervene to a group or organization which is not a legal entity and is therefore not "a person or organization" within s. 36 (2). One effect of the cancellation of the registration of an organization under the Act is that it ceases to be an organization and a corporation thereunder, although it does not cease to be an association - see s. 143 (6). It is not disputed that the B.L.F., since its deregistration, is an unincorporated association, and therefore not a legal entity. Although an unincorporated association is not "a person or organization" within s. 36 (2), it would not necessarily follow that the grant of leave to intervene would be invalid if expressed to be made in favour of such an association, because it might be right to regard the leave as granted to all the persons who were the members of the association (cf. R. v. Commissioner of Patents; Ex parte Weiss (1939) 61 CLR 240, at pp 259-260 ). However, that question need not be further considered, since in the present case the leave to intervene was not granted to the B.L.F. The learned deputy president deliberately refrained from granting leave as originally sought - i.e. to the B.L.F. - and the fact that the "aggregation of persons" to whom leave was granted were not all the members of the B.L.F., but those who were members on 2nd July 1974 and remained members thereafter, indicates that it was not intended to grant leave to the association as such. The grant of leave can only be construed as being in favour of each of the persons who was a member on 2nd July 1974 and remained a member at the time when the intervention was made. Technically the leave was given to individual builders' labourers, about 35,000 in number. (at p153)

5. At first sight the grant of leave to intervene to 35,000 persons seems so bizarre, and so potentially disruptive of the proceedings of the Commission, that it might be thought to be completely beyond the power recognized by s. 36 (2). The learned deputy president did not say that she was of opinion that it was desirable that those persons should be heard, although the formation of that opinion was indispensable to the exercise of the power. However, it may be inferred that she was of that opinion. Of course it cannot be supposed that she thought it desirable that each of the 35,000 men should be heard individually. She obviously contemplated that they would be represented as an "aggregation", and if she formed the opinion that it was desirable that they should be heard through their representatives that would seem to satisfy the condition precedent, for obviously it is not intended that interveners should necessarily be heard in person. Counsel for the B.L.F. had told her that it was not intended that the men would be marshalled by their battalions and marched into court, and she had ample power to ensure that they did not abuse the leave granted to them - if necessary by revoking the leave (see s. 41 (1) (1) , (o) of the Act). Indeed, she had already indicated her intention to control the extent to which the interveners took part in the proceedings. Further, there were reasons why it might have been thought desirable that representatives of the builders' labourers should be heard. It seems to have been agreed on all sides that an award governing the conditions of tradesmen in the building industry might affect the conditions of builders' labourers and that builders' labourers ought therefore to have an opportunity to be heard before such an award was made. However, since the B.L.F. had been deregistered there was apparently no organization available to represent them. There was thus a case for allowing intervention of some kind to ensure that the point of view of builders' labourers was put during the proceedings. (at p154)

6. In all these circumstances, we are not satisfied that the learned deputy president exceeded her powers in granting leave to intervene in the terms that she did. It is true that there are practical difficulties about the order to which the learned deputy president did not expressly advert. If there is no organization to represent the builders' labourers as a group or class, they must be represented individually, and if it is intended that there be one representative of them all, that representative must have the authority of all those whom he represents. Not all the men represented will necessarily be of the one opinion, and a representative could not conveniently appear on behalf of persons whose views were in conflict. Moreover, if it was intended that the "aggregation" should in fact be represented by officers of the B.L.F. or persons instructed by them, that would appear contrary to the policy reflected in s. 143 (5) and (6) of the Act, for if a deregistered organization cannot obtain an award for its own members, it hardly seems possible for it to intervene in proceedings concerning a suggested award for related trades. (at p154)

7. These considerations, which go to the wisdom and propriety of the order, are however not relevant on this application for prohibition. It is well established that prohibition will lie to the Commission for absence or excess of jurisdiction, but not to correct errors within jurisdiction:

"Upon an application for a writ of prohibition the Court does not consider the merits of the case. It does not ask whether the order made was right or wrong. Where the application is founded on alleged want of jurisdiction it considers only whether the challenged order . . . exceeds the powers conferred upon the authority which made it.": R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd., per Latham C.J. (1944) 69 CLR 407, at p 429 .

It is true that excess of jurisdiction may be found where it is provided by statute that the formation of an opinion is a condition precedent to the exercise of a power, and no such opinion has been really formed, either because the authority sought to be prohibited did not address itself to the matter, or because it misunderstood the nature of the opinion it was to form, or because on the facts of the case no reasonable authority could have arrived at the requisite opinion. The "question as to the limits between what would be properly matter for prohibition, and what would be matter of appeal only" may be very difficult - Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section (1953) 89 CLR 636, at p 647 - but it is unnecessary to consider the many decisions on this subject for the purpose of determining the present case. The exercise of power now under consideration was purely in relation to a matter of procedure. The order made did not affect the rights or liabilities of any party to the proceedings, and the object of the intervention granted was not to permit the interveners to become parties to any order or award the Commission might make, but solely to allow them to be heard. In Posner v. Collector for Inter-State Destitute Persons (Vict.) (1946) 74 CLR 461, at p 476 , Starke J. said:

"Irregularities in procedure do not, it is clear, invalidate or make void orders within jurisdiction. When a court has jurisdiction over a proceeding and proceeds inverso ordine or erroneously that does not take away the jurisdiction of the court and make its order void."

No doubt an irregularity of procedure so serious that it amounted to a violation of the principles of natural justice might ground prohibition, but that did not occur in the present case. The order in the present case allowed the intervention of persons who wished to be heard in proceedings which were admittedly within the jurisdiction of the Commission. Such an order seems to us very clearly an order made by the Commission in the course of exercising its jurisdiction; it was an order regulating the procedure in proceedings properly before the Commission. If the Commission erred, its error was within the limits of its jurisdiction. (at p155)

8. A further ground taken by the M.B.A. was that the learned deputy president had no jurisdiction to grant leave to intervene in the terms that she did because there was no application before her for intervention in those terms and no opportunity was afforded to the M.B.A. to be heard in opposition to the leave in fact granted. In our opinion it was within the powers of the learned deputy president to grant the application in an amended form, and the leave granted was not so different from that which was sought that it could be said that the M.B.A., which was fully heard on the original application, had been denied natural justice in not being afforded a further opportunity to be heard before leave was finally granted. (at p156)

9. We would discharge the order nisi. (at p156)

Orders

Order nisi discharged. Prosecutor to pay the respondent's costs.