R v Federal Court of Australia; ex parte WA National Football League

[1979] HCA 6

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ.

THE QUEEN v. FEDERAL COURT OF AUSTRALIA; Ex parte W.A. NATIONAL FOOTBALL LEAGUE

(1979) 143 CLR 190

27 February 1979

Constitutional Law (Cth)—Prohibition

Constitutional Law (Cth)—Powers of Commonwealth Parliament—Trading corporations—Incorporated football club and football league—Purpose of formation—Activities—Interstate trade and commerce—Clearance of football player from club in one State to play for club in another State—The Constitution (63 &64 Vict. c. 12), ss. 51 (i.), (xx.)—Trade Practices Act 1974 (Cth), ss 4 (1), 6, 45 (2), 80 (1) (d), (h)—Associations Incorporation Act, 1895-1969 (W.A.), ss. 2, 3, 6—Associations Incorporation Act, 1956 (S.A.), ss. 4, 12. Prohibition—Federal Court of Australia—Jurisdictional facts—Right of appeal to High Court—Relevance to prohibition—Court's discretion—The Constitution (63 &64 Vict. c. 12), ss. 75 (v.), 76—Judiciary Act 1903 (Cth) ss. 33 (1), 38, 40—Federal Court of Australia Act 1976 (Cth), ss. 5 (2), 19 (1), 32 (1), 33—Trade Practices Act 1974 (Cth), s. 163A.

Decisions

1979, February 27.
The following written judgments were delivered: -
BARWICK C.J. Adamson (the respondent) is a young man, twenty-five years of age, who has developed skill as a player of Australian Rules football, a code indigenous to Australia and principally played in Victoria, South Australia and Western Australia. Having, as he claims, no particular skill suitable for other occupations, he intends to make playing this game as a professional his career. (at p194)

2. In 1973, he resided in the geographical area assigned by the Western Australian National League ("the State League") for the purposes of the playing of Australian Rules football in Western Australia to the West Perth Club ("the Club"). Consequently, he was registered as a player with the Club. He has trained with it since 1973 and has played successfully in its senior team being paid by the Club a fee for each match in which he played: but no formal contract of employment governed any such payment. He also played in a team representative of the State of Western Australia in the National Australian Rules competition conducted by the Australian National League ("the National League"). (at p194)

3. However, having failed this year to make with the Club the written contract he desired and having had an offer to play with the Norwood Club in South Australia, he moved his residence to the latter State. But, because of the relevant rules of the National League adopted both by the State League and the Club by their respective rules, he could not play with any club playing Australian Rules other than the club with which he was registered except with the consent of the National League, expressed through a "clearance". The Norwood Club could be penalized in competition points in the competition conducted by the National League if it played the respondent in one of its teams without the grant of such a clearance. Seemingly, the grant of a clearance by the National League is made either after consultation with or at the instance of the State League and also with concurrence of the Club. It seems that, generally speaking, it would be refused if the Club objected to its grant. It is unnecessary for the purposes of these reasons to detail the rules governing the need for and the grant of a clearance: it is sufficient to enable appreciation of the point the Court is now asked to decide to observe that the rules accepted by the respondent in joining and being registered with the Club preclude him from playing in the code with any other club without a clearance. I understand that on occasions such a clearance may be granted to a player upon the payment by the club to which the player transfers his registration to the club from which he is cleared of a sum of money, often of substantial proportions, none of which as a rule goes to the player. (at p195)

4. The respondent was refused a clearance. Consequently, he has not played with the Norwood Club. He applied to the Federal Court of Australia for orders against the State League and the Club which, if granted, would in substance compel the grant of a clearance or at any rate allow the respondent to be played by the Norwood Club without competitive disadvantage to that club. He alleged that the State League and the Club in refusing the clearance were acting in breach of the provisions of the Trade Practices Act 1974-1977 (Cth) ("the Act"). He based his application upon ss. 6 (1), 45 and 80 (1) (d) and (h) of the Act. (at p195)

5. Principally, the respondent's case, according to his affidavit filed in the Federal Court, is that the State League and the Club are trading corporations formed within Australia bound by the provisions of Pt IV of the Act and in relation to the requirement and refusal of a clearance are in breach of the Act. It is unnecessary for present purposes to examine the manner in which the respondent seeks to make good his claim that the State League and the Club are in breach of the Act. The respondent makes an alternative case to which I later refer. (at p196)

6. Part VI of the Trade Practices Act gives jurisdiction to the Federal Court to enforce Pt IV of the Act, which contains s. 45. By s. 80, in Pt VI, the Federal Court is empowered to restrain conduct which constitutes or would constitute a contravention of a provision of Pt IV. By s. 86, the Federal Court is given jurisdiction to hear and determine applications for orders under s. 80. Its jurisdiction in this respect is expressed to be exclusive of the jurisdiction of any other court than that of this Court under s. 75 of the Constitution. Thus the Federal Court has jurisdiction by its order to restrain a trading corporation formed within the limits of the Commonwealth within the meaning of the Constitution from acting in breach of the Act. It also has jurisdiction to restrain a person, natural or juristic, from acting in breach of the Act to the extent that the relevant act or acts is or are done in the course of or in relation to trade and commerce among the States. (at p196)

7. The application by the respondent to the Federal Court was due to be heard by that Court on 14th June. However, on 6th June, the Chief Justice at the instance of the State League and the Club (the prosecutors) made an order nisi for prohibition to restrain the Federal Court from proceeding with the respondent's application for the orders he sought, upon the ground in substance that that Court lacked jurisdiction to make any such order because neither of the prosecutors is a trading corporation within the meaning of s. 51 (xx.) of the Australian Constitution or, because in relation to the refusal of a clearance to the respondent, neither of them was engaged in interstate trade and commerce. Proceedings in the Federal Court were stayed meanwhile. (at p196)

8. The order nisi was returnable before the Court on Wednesday, 14th June. Affidavits on behalf of prosecutors and respondent and exhibits thereto were filed and read to the whole Court which constituted the bench to hear the application for an order absolute for prohibition. At the conclusion of the argument, the Court lifted the stay of proceedings in the Federal Court, thus enabling those proceedings to continue: otherwise, the Court reserved its decision. (at p196)

9. Section 45 of the Act, apart from the operation of s. 6, is, constitutionally based on s. 51 (xx.): and so far as affected by s. 6 (1), is so based on s. 51 (i.). These paragraphs of s. 51 of the Constitution respectively give legislative power to the Parliament with respect to interstate trade and commerce and with respect to foreign corporations and trading and financial corporations formed within the limits of the Commonwealth. (at p196)

10. As I have formed a definite conclusion that the prosecutors are trading corporations within the meaning of the Constitution and that, for that reason, the order nisi for prohibition should be discharged, I do not propose to examine in detail the alternative submissions made by the respondent, namely, that the conduct on the part of the prosecutors of which he complains occurred in relation to interstate trade and commerce and that, in any case, there is jurisdiction in the Federal Court to entertain the application against at least one of the prosecutors on the footing that it was an accessory within the scope of s. 80 (1) (h) of the Act. Nor shall I express any view on the question whether what I hereafter say with regard to the ability of the Federal Court conclusively to determine whether the prosecutors or one of them is a trading corporation applies equally to the Federal Court's ability so to determine whether either of the prosecutors is relevantly engaged in interstate trade and commerce. (at p197)

11. But I ought to say on the first of these alternative submissions that the refusal of a clearance plainly was not, in my opinion, in relation to interstate trade or commerce, however much the lack of it precluded the respondent from playing the code in another State: and, as to the second of the submissions, that unless at least one of the prosecutors is a trading corporation in breach of s. 45, there can be no room for treating either of them as accessories. Thus it seems to me there is in reality no separate and alternative basis on which to deny the jurisdiction of the Federal Court to make the orders sought. It must be challenged on the footing that in truth neither of the prosecutors is a trading corporation as described in the Constitution. Consequently, from here on my remarks so far as they relate to the substance of the matter are confined to the question whether either of the prosecutors is a trading corporation within the constitutional legislative power. (at p197)

12. There can be no doubt that both the prosecutors and, for that matter, the National League are corporations. The first two are registered under the Associations Incorporation Act, 1895-1969 (W.A.) ("the Associations Act") and consequently incorporated: see s. 3 of the Associations Act. The National League is incorporated under the Companies Act 1961 (Vict.). I might mention in passing that the Norwood Club is incorporated under the Associations Incorporation Act, 1956 (S.A.). (at p197)

13. The relevant sections of the Western Australian Act - mirrored in the South Australian Act - are: (at p197)

14. Section 2, specifying the associations which may be for incorporation. (at p197)

15. Section 3, which provides for the issue of a certificate of incorporation which evidences the due incorporation of the association. (at p198)

16. Section 6, which effects incorporation upon the issue of a certificate of incorporation. (at p198)

17. The prosecutors are each an association within the description in s. 2, subject to the effect of the proviso to that section which provides: "Provided that this Act shall not apply to associations for the purpose of trading or securing pecuniary profit to the members from the transactions thereof", Each of the prosecutors has been issued with a certificate of incorporation which evidences that the association is incorporated. Presumably it was granted upon a certificate of the Attorney-General complying with s. 2. The incorporation under the Associations Act provides for a common seal and for the power to purchase and hold property. That Act places no limitation upon the activities of the incorporated body. It relies on the official control of the grant of a certificate of incorporation to preclude associations which do not qualify under the definition in s. 2 from achieving incorporation. It makes no attempt to limit their capacity once incorporated. The powers of the corporation will be found in the rules of the association. Any question as to the validity of an act of the corporation must be settled upon consideration of those rules. (at p198)

18. It may be, though I do not decide, that the incorporation of an association which has received a certificate of incorporation though it did not qualify under the definition could have its certificate of incorporation revoked or set aside by a competent court. But, in my opinion, until that, if it can happen, has happened, the incorporation is effective. (at p198)

19. We heard an argument that the incorporation of the prosecutors was of a limited nature. It was submitted that by reason of the proviso to the definition of "association" in s. 2 the Associations Act could not apply to an association for the purpose of trading whether or not pecuniary profit was distributed to the members of the association. It was then said that if an association which had been incorporated under the Associations Act did so trade, it ceased in relation to that trading to be a corporation, though remaining so for other non-trading purposes. I have thus expressed what the argument, obscurely expressed, was, it seems to me, intended to submit. This submission, even if its construction of the proviso to s. 2 were correct, was not merely novel but patently unsound. A somewhat similar suggestion made in the argument of Williams v. Hursey (1959) 103 CLR 30 was dispatched by Sir Wilfred Fullagar, by saying that "The notion of qualified legal capacity is intelligible, but the notion of qualified legal personality is not" (1959) 103 CLR, at p 52 . I respectfully agree with Sir Wilfred's summary rejection of the proposition. Acts done ultra vires do not impinge upon, lessen or deny the corporate nature of the body concerned. (at p199)

20. But, in any case, the construction placed by counsel on the proviso to s. 2 is, in my opinion, erroneous. What the proviso intends to exclude from the operation of the Associations Act are associations which are formed to trade for the profit of its members. The language of the proviso should be read as a whole and not in self-contained segments. It is not the purpose of entering into trading transactions which is intended to disqualify: the disqualification is in the purpose of gaining by trading or otherwise pecuniary profit for the members. (at p199)

21. Further, as I have said, it seems to me that if an association which fell within the proviso were issued with a certificate of incorporation, it must be deemed, at least so long as that certificate is extant, to be a corporation. Although not so said in express terms, the Associations Act in reality makes the certificate of incorporation conclusive evidence of the corporate personality of the registered association. I therefore reject the submission that either of the prosecutors is not a corporation formed within the limits of the Commonwealth. (at p199)

22. The definition of a trading corporation for the purposes of the Act is tied to the constitutional language of s. 51 (xx.): see s. 4. (at p199)

23. It is no doubt convenient to the Parliament and the parliamentary draftsman to avoid the risk of the unconstitutionality of a statute by using statutory definitions expressed in terms of the relevant constitutional power. By so doing, no question of the constitutional validity of the Act itself will arise so far as it concerns matters related to and dependent upon the statutory definition. But in the long run such a course may well prove highly inconvenient and costly to those affected by the statute. As in this case, the citizen may find himself litigating a constitutional question of some dimension. If I may venture to say so, it would be better if the Parliament and its draftsman assayed a definition, e.g. as in this case of a trading corporation, which covered those described bodies which the Parliament wished to embrace within the operation of its legislation, making for this purpose its own judgment of the ambit of its constitutional power. It may well be that the Parliament, in specifically defining those whom it desires to affect by its statute, may not exhaust its constitutional power: or, of course, it may be, in enacting its definition, it may exceed that power. But if it does, and it is careful to leave room for severance or a distributive operation, the statute will embrace those whom constitutionally it may affect even if it fails for lack of power to affect others who fall within the statutory definition. (at p200)

24. However, as I have indicated, the Parliament, by using the constitutional language in its definition of "trading corporation", has left it to this Court either initially, as is proposed in this case, or ultimately, on appeal or by prohibition or certiorari, after a decision of the Federal Court, to determine the constitutional question whether the litigant comes within the constitutional power. Consequently, this Court may at some stage in the proceedings commenced in the Federal Court be called upon to decide whether a corporation which is sought to be affected by those proceedings is a trading corporation within the meaning of the Constitution, which the Court for this purpose must construe perhaps, though not necessarily, exhaustively. (at p200)

25. In my opinion, both for the constitutional and the statutory competence of the Federal Court to enforce s. 45 in its express terms, the body sought to be affected by the proceedings must, in relation to the present circumstances, be a trading corporation within the ambit of the constitutional power with respect to trading corporations formed within the limits of the Commonwealth. Two questions are raised by the application for prohibition, namely: (at p200)

26. 1. Whether, if neither of the prosecutors is a trading corporation so that the relevant sections of the Act constitutionally cannot apply to or bind them or either of them with the consequence that the Federal Court lacks jurisdiction to make the orders sought in the proceedings before it, this Court can, at any stage of those proceedings, and in particular at the present stage, and, if it can, whether it should, grant now prohibition to restrain the hearing of those proceedings. (at p200)

27. 2. Whether either of the prosecutors is a trading corporation. (at p200)

28. The Court is not concerned in this application with the question whether or not the prosecutors, or either of them, if bound by the Act, is in breach of its terms. Apart from the procedural question as to the grant of prohibition to the Federal Court, the sole question is whether either of the bodies sought to be affected by those proceedings is a trading corporation. (at p200)

29. I would first deal with the procedural question. Section 75 (v.) of the Constitution gives to this Court jurisdiction to grant prohibition to a federal officer. This is a large and most important jurisdiction. The judges of the Federal Court are federal officers: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow &Co. (1910) 11 CLR 1 ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co. Ltd., ("the Tramways Case (No. 1)" (1914) 18 CLR 54 . This power, as Griffith C.J. observed in the latter case, cannot be taken away from the Court "by any form of words or any device" (1914) 18 CLR, at p 59 . The Court should itself be jealous to preserve and maintain the scope of the power. (at p201)

30. Further, s. 38 of the Judiciary Act 1903, as amended, passed in pursuance of s. 76 of the Constitution, gives this Court jurisdiction in matters in which a writ of prohibition is sought against a federal officer or a federal court. Section 33 (1) of that Act expressly gives to this Court power to make orders or direct the issue of writs requiring any court to abstain from the exercise of any federal jurisdiction which it does not have. (at p201)

31. This jurisdiction, whether derived from the Constitution or from the Judiciary Act, is exclusive of the jurisdiction of the several courts of the States and is excluded from the general investiture of State courts with federal jurisdiction which s. 39 of the Judiciary Act effects. Thus, no court of a State has jurisdiction to entertain or to grant an application for prohibition to a federal officer or a federal court. (at p201)

32. The use of the word "prohibition" in s. 75 (v.) imports into this Court's jurisdiction the law appertaining to the grant of prohibition by the King's Bench. Some aspects of that law are, in my opinion, presently relevant. The essential nature of the writ of prohibition as described by Brett J. in Worthington v. Jeffries (1875) LR 10 CP 379, at p 382 , in a passage cited by Griffith C.J., in the Tramways Case (No. 1) (1914) 18 CLR, at p 60 is of relevant and fundamental importance. Having referred to prior decisions, his Lordship said (1875) LR 10 CP, at p 382 :
"These authorities shew that the ground of decision, in considering whether prohibition is or is not to be granted, is not whether the individual suitor has or has not suffered damage, but is, whether the royal prerogative has been encroached upon by reason of the prescribed order of administration of justice having been disobeyed. If this were not so, it seems difficult to understand why a stranger may interfere at all." (at p201)

33. The grant of the writ of prohibition is discretionary if sought by a stranger or if the want of jurisdiction does not appear on the face of the proceedings: see judgment of Willes J. in London Corporation v. Cox (1868) LR 2 HL 239, at p 283 . But if, though not apparent on the face of the proceedings, lack of jurisdiction is made out to the satisfaction of the court the discretion to grant the writ may be exercised so soon as proceedings are taken. (at p202)

34. The existence of a right of appeal, even to this Court, cannot be a bar to the grant of the writ: see the Tramways Case (No. 1) (1914) 18 CLR, at pp 61-62, 64, 65 : also, Mooney v. Commissioners of Taxation (N.S.W.) (1905) 3 CLR 221, at p 236 . The grant of prohibition is an exercise of original jurisdiction and not part of the appellate process. An appeal, even when lack of jurisdiction may afford a ground of appeal, cannot be a substitute for prohibition, nor its existence an inhibition on the exercise of the power to grant prohibition. How far, if at all, the existence of such a right may affect the exercise of the discretion to grant the writ will be discussed later. (at p202)

35. Prohibition to restrain the commencement or continuation of proceedings is an appropriate remedy to be granted for manifest want or excess of jurisdiction. It may be granted before a decision has been given or it may be granted thereafter to restrain proceedings upon the decision or order. After the decision or order has been given or made, certiorari to quash may be granted where nothing remains which could be prohibited. (at p202)

36. In matters which do not involve constitutional competence there is often a question whether the statute which gives jurisdiction has also given the court or tribunal jurisdiction conclusively to determine the existence of any fact or situation upon the existence of which the statutory jurisdiction depends: e.g. Parisienne Basket Shoes Pty. Ltd. v. Whyte (1938) 59 CLR 369 . But such a question cannot arise if the jurisdiction depends on constitutional legislative power to create it. Where constitutional competence to create the jurisdiction depends on the actual existence of some specific fact or situation the court or tribunal, though it may form a view as to whether the fact or situation exists, is not competent to decide that in truth either does exist: only this Court may conclusively determine the actual existence of the fact or situation which grounds the constitutional power. (at p202)

37. This Court has consistently taken the view which I have just expressed. See the line of cases beginning with R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. (1921) 29 CLR 290, at p 299 , and presently ending in the recent case of Reg. v. Heagney; Ex parte A.C.T. Employers Federation (1976) 137 CLR 86 . These cases have been concerned with jurisdiction depending on s. 51 (xxxv.), i.e. upon the existence of an industrial dispute extending beyond the limits of any one State. But, in my opinion, their reasoning is equally applicable to the case of jurisdiction depending on s. 51 (xx.), i.e. as in the present case, upon the existence before the court or tribunal of a trading corporation within the meaning of the Constitution, which is sought to be subjected to a law made under s. 51 (xx.). The fundamental reason why this Court has entertained applications for prohibition to the Commonwealth industrial and arbitration tribunals is that, because of the restricted language of s. 51 (xxxv.), the Parliament cannot validly confer jurisdiction upon such a tribunal except in relation to an industrial dispute actually existing which satisfies the constitutional language of that paragraph. Equally, the Parliament has no constitutional power to confer on a court or tribunal a power to make orders requiring a corporation which is not within the constitutional language of s. 51 (xx.) to observe the terms of a statute depending for its validity upon that paragraph of s. 51. (at p203)

38. The Parliament might, in respect of either legislative power, create a tribunal which, as an incident of its jurisdiction, may enter upon the inquiry whether in the one instance an industrial dispute of the requisite kind exists, or on the other hand whether a trading corporation of the relevant kind is sought to be affected by the proceedings before it. It could not be said that such a court or tribunal lacked jurisdiction to enter upon such an inquiry. Clearly enough, in the present case the Federal Court could do so in the proceedings before it. But, if there were in truth no such dispute, or no such trading corporation, the court or tribunal could have no jurisdiction to make an award or order under a statute founded on the respective constitutional power. If the court to which application is made, not being restrained, forms a view as to the existence of the fact or situation which is necessary to satisfy the constitutional basis of the proceedings, its view cannot be definitive of the existence of jurisdiction. This Court alone can decide that in truth the relevant dispute, or the relevant corporation, was present. Prohibition to restrain the making of any award or order would be appropriate if this Court decided that no such dispute, or no such corporation, was relevantly present. It would be appropriate because the court or tribunal was attempting to exercise, or had purported to exercise, a jurisdiction which the Parliament did not have constitutional power to confer upon it. If, for that reason, the court or tribunal could not make any such award or order, it can be restrained from entering upon or continuing proceedings in which the making of such an award or order is sought. The relevant question is not whether the court or tribunal has jurisdiction to inquire into the existence of the fact or situation: but whether it could make the award or order sought. (at p204)

39. I have no doubt that if this Court were convinced that neither of the prosecutors is a trading corporation within the constitutional power granted by s. 51 (xx.), it could grant prohibition to the Federal Court: and if it thought fit to do so, grant the writ at the inception of the proceedings to obtain an order under the Act against the prosecutors. But the question whether the Court should do so is a different matter. (at p204)

40. No lack of jurisdiction is apparent on the face of the proceedings initiated in the Federal Court, however much of the material lodged by the respondent with his application to the Federal Court is regarded as forming part of "the face of the proceedings". The grant of the writ in this case thus lies in the discretion of the Court. The discretion is of course a judicial discretion exercisable on known or stated principles. In exercising the discretion the Court, in my opinion, should bear in mind the nature and purpose of the writ. I have already referred to the judgment of Brett J. in Worthington v. Jeffries (1875) LR 10 CP 379, at p 382 . It is for the public interest that tribunals of limited jurisdiction be confined within that jurisdiction. A judgment given or an order made in a matter which is outside the limited jurisdiction of the tribunal giving or making it, from which the parties do not appeal, may become a precedent. The public interest is that such a decision or order should not be allowed to stand: Bodenham v. Ricketts (1836) 6 Nev &MKB 170 (111 ER 850) . It is for this reason that a stranger may obtain prohibition. Such considerations apply with equal, if not greater, force with respect to matters where jurisdiction depends on constitutional competence. (at p204)

41. I mentioned earlier that the existence of an appeal, whether or not to this Court, cannot be an answer to an application for prohibition. On the other hand, the lack of an appeal could not in itself be a ground for prohibition if jurisdiction were present. As I read the successive judgments of this Court dealing with prohibition to the Industrial Arbitration tribunals, the lack of an appeal to this Court has never been the basis of the grant of prohibition. In principle, it could not, in my opinion, have been a reason for the exercise of the prerogative writ. That process is so called because it is not available for the correction of error, and because the assumption of a jurisdiction which does not lawfully exist is an usurpation of the prerogative of the Crown. (at p205)

42. I could not regard the existence of a right of appeal, and even less the possibility of the grant of special leave to appeal as a matter to be taken into consideration in the exercise of the judicial discretion. The parties may not exercise any right or possibility of appeal, being content for reasons unconnected with questions of jurisdiction with the orders made in the proceedings. (at p205)

43. The Federal Court of Australia is "a superior court of record and a court of law and equity" - s. 5 (2) of the Federal Court of Australia Act 1976 ("the Federal Court Act") - but it is a court of limited jurisdiction. It has such original jurisdiction as is vested in it by the Parliament in respect of matters arising under laws made by the Parliament: s. 19 (1) of the Federal Court Act. It has an appellate jurisdiction for which s. 24 (1) of the Federal Court Act provides: but we are not presently concerned with the nature or extent of that appellate jurisdiction. (at p205)

44. Part IV of the Federal Court Act regulates appeals from the Federal Court to this Court. No appeal may be brought as of right to this Court from the judgment of a single judge of the Federal Court unless some other Act of the Parliament otherwise provides (s. 33 (2)). But an appeal to this Court may be brought as of right from a final judgment of a full court of the Federal Court given or pronounced either for at least the sum of $20,000 or in proceedings in which the matter in issue amounts to or is of the value of that sum or which involve directly or indirectly a claim, demand or question to or respecting any property or other civil right to or of the value of at least that sum. This Court, however, may grant special leave to appeal in any case, whether decided by a single judge or by a full court. (at p205)

45. Taking the view I do as to the irrelevance of the existence of a right of appeal to the question whether prohibition should be granted, I do not intend to consider whether either the prosecutors or the respondent would have a right of appeal if an order as sought in the proceedings before it were made or rejected by the Federal Court. It is enough to say that, if contrary to my own opinion the existence of a right of appeal were relevant to the exercise of the discretion to grant or refuse prohibition, I am far from convinced that an appeal as of right would be open to either party to the proceedings now before the Federal Court. (at p205)

46. I have already indicated that the question whether or not the writ should issue at some particular stage of proceedings in the Federal Court is, in my opinion, very different from the question whether the writ should be refused in point of discretion. It seems to me appropriate that something be said as to the circumstances in which it may be appropriate to defer ordering the issue of the writ. If the existence or non-existence of a fact constitutionally basic to the Federal Court's jurisdiction to make any relevant order is a matter of controversy before this Court and the material placed before this Court requires oral testimony or is of a nature, whether because of complexity or volume, which would make the determination of the question by a full court undesirable, this Court may well adjourn the further hearing of the application for prohibition until the proceedings in the Federal Court have progressed to a point where the probable existence or non-existence of the fact or situation has emerged: or it may be that this Court in a particular case would prefer to refer contested facts to a single Justice for determination or it may be that the application should be deferred until the conclusion of the proceedings in the Federal Court. By adjourning the application until some later stage of the proceedings before the Federal Court, this Court would keep control of the question of jurisdiction and not relegate it to the whim of the parties as it would do if it refused prohibition on the ground that a right of appeal existed. If the application for prohibition is deferred till the conclusion of the proceedings before the Federal Court and an appeal from an order made in those proceedings is brought to this Court, the application for prohibition may be heard contemporaneously with the appeal. (at p206)

47. Of course, in considering whether to postpone the application for prohibition, the cost of continuing the proceedings before the Federal Court may well be an important factor: this would be particularly so where the material before this Court really involved no contest in fact or was such that the existence of the fact constitutionally basic to jurisdiction could conveniently be found by a full court of this Court. (at p206)

48. In general, where lack of constitutionally based jurisdiction is not apparent on the face of the proceedings, unless the facts necessary to a decision as to jurisdiction of the Federal Court are agreed, or indisputable, a situation unlikely often to occur, this Court should defer the hearing of the application for prohibition. In general, the Court should be reluctant to grant prohibition at an early stage of the proceedings. The preferable course would be to allow those proceedings to proceed, keeping on foot the application to grant prohibition so that, if appropriate, it may be granted at a later stage. If the application is not made until the proceedings in the Federal Court have progressed or even with the conclusion of those proceedings, the applicant should not be regarded as having unduly delayed the making of the application. (at p207)

49. I would sum up my conclusions on the procedural point as follows:
1. This Court has jurisdiction to grant prohibition to a federal court whether or not a right of appeal to this Court lies from orders made by that federal court.
2. The Parliament has no legislative power to create a jurisdiction to make any order under a statutory provision which would exceed the relevant constitutional power. In relation to s. 51 (xx.) this means that the Parliament cannot give a federal court jurisdiction to make an order against a corporation which does not satisfy the description in that paragraph requiring the corporation to do or abstain from doing any act prescribed or forbidden by an Act depending on that paragraph for its constitutional validity.
3. Where it does not appear on the face of the proceedings that the federal court for constitutional reasons does not or could not have jurisdiction to make the order sought in the proceedings before it, the writ is not as of right: its grant is discretionary.
4. The existence of a right of appeal to this Court from the orders of the federal court is not relevant to the exercise of the discretion to grant prohibition.
5. Unless the facts necessary for decision of the question whether in truth the fact upon which constitutional competence depends are admitted or indisputably proved, the Court in general should defer the consideration of an application for prohibition brought at the inception of proceedings before the federal court until some later stage in or until the conclusion of those proceedings, allowing the federal court to proceed meanwhile. (at p207)

50. I now turn to the question whether either of the prosecutors is a "trading corporation". Before discussing the material before the Court as to the activities of the prosecutors, I should deal with the nature of a trading corporation for constitutional purposes. (at p207)

51. In conformity with the principles of constitutional construction, the description "trading corporation" in s. 51 (xx.) must be given its full content, generously rather than restrictively construed. Whilst it is in a sense true to say that the constitutional power is not a power to legislate with respect to the trading activities of corporations, the constitutional description cannot, in my opinion, properly be limited to the making of laws with respect to corporations which were formed as trading corporations, that is to say, as corporations the sole or predominant purpose of whose incorporation was to trade, however widely that word might be defined. (at p208)

52. The constitutional power was clearly not intended to be ossified to the classification of companies which may have been current in other times for specified purposes. The full connotation of the description "trading corporation" cannot be displaced by the denotation it may have had at any past time. It is a power evidently intended to be available in circumstances current in future times. Like other descriptive expressions in the Constitution, e.g. telephonic communication, the description "trading corporation" must be allowed to embrace all that may fall within it according to its natural meaning and the circumstances of the time at which a decision as to validity or constitutional power has to be made. (at p208)

53. In modern times having regard to the diversification of corporate activity and the virtual elimination of ultra vires from the law relating to companies registered under Companies Acts, e.g. s. 20 of the Companies Act, 1961 (N.S.W.), the nature of a company may not be discernible from a perusal of its memorandum. The only sure guide to the nature of the company is a purview of its current activities, a judgment as to its nature being made after an overview of all those activities. (at p208)

54. I remain of the firm conviction that for constitutional purposes a corporation formed within the limits of Australia will satisfy the description "trading corporation" if trading is a substantial corporate activity. Its activities rather than the purpose of its incorporation will designate its relevant character. But so to say assumes that such trading activities are within its corporate powers, actual or imputed. It is the corporation which satisfies the description which is the subject matter of the power. Thus its corporate capacity or incapacity cannot be ignored. But once it is found that trading is a substantial and not a merely peripheral activity not forbidden by the organic rules of the corporation, the conclusion that the corporation is a trading corporation is open. (at p208)

55. The prosecutors' principal submission in this connexion was that only corporations, incorporated as trading corporations - whatever that might mean - could fall within the description of that paragraph. Trading must be the purpose of its incorporation, according to the submission. It would not be enough that the corporation did in fact trade either as its exclusive activity or as one of its substantial activities. Counsel sought to extract support for this proposition from views expressed by the majority in R. v. Trade Practices Tribunal; Ex parte St. George County Council (1974) 130 CLR 533 . In my opinion, however, those views do not support the proposition. It was there said by the majority, as I read their reasons, that a corporation formed in the sphere of local government and for its purposes could not relevantly be a trading corporation. The case was not decided, as I view it, on the footing that in general the current activities of a corporation can be ignored when deciding whether or no it is a trading corporation but rather that the particular origin and the statutory association of that county council with local government precluded the conclusion that it was a trading corporation, albeit that all the council did was to trade and, indeed, that trading in electricity and electrical goods was at least its principal if not the sole purpose of its incorporation. The majority seems also to have denied the trading quality of what the council was doing on the ground that the supply of electricity was a public service. I might be permitted to remark that until quite recent times in Australia electricity was supplied by non-government bodies which clearly were trading in electricity. But its quality as a public service in the view of the majority seems to have been derived from the fact that it was supplied by a statutory or "government" body. There were thus in the St. George County Council Case (1974) 130 CLR 533 special considerations upon which the majority founded their views. Consequently, I do not regard the decision of the case as supporting the general proposition put forward on behalf of the prosecution. (at p209)

56. In any case, I may say, I continue to find myself unable to accept those views. The Court as presently composed is free in this case to reconsider and, if need be, to depart from them. That is a course I would support. (at p209)

57. I now consider what the Club and the State League were in fact engaged in doing. Trade for constitutional purposes cannot be confined to dealing in goods or commodities. Its full parameters may be difficult of definition. But the commercial nature of an activity is an element in deciding whether the action is in trade or trading. (at p209)

58. In the present case, although the material has not been presented to the Court in the most satisfactory manner or form due in some part to a sense of urgency, the evidence upon which a conclusion may be drawn as to the actual existence of what I have styled the constitutional fact or situation is not really in contest. For my part, I see no difficulty in its consideration by a full bench, nor any need to seek a finding by a Justice of this Court. The application for prohibition is not premature. The Court, in my opinion, is able itself to decide at this stage that the prosecutors are trading corporations. (at p210)

59. The central activity of the Club and of the League is the promotion of Australian Rules Football. The major avenue chosen for such promotion is the organization and presentation of competition matches in which the players may be, and I gather mostly are, professionals employed and paid for their participation in those matches which are played on grounds usually under the control of the Club or League, either ad hoc or under some form of tenure. These activities are clearly within the objects or purposes of the prosecutors. (at p210)

60. It was objected by the prosecutors' counsel that the Club was merely conducting a sport and therefore could not be regarded as being in trade. Of course, football of any code may be a sport, as distinct from a trade, when played solely for its own sake as a pastime upon an amateur footing. But what the Club and the League conduct is far removed from any such concept of sport. The players are professionals employed for wages in the playing of the code. This Court decided in Buckley v. Tutty (1971) 125 CLR 353 that such a player was an employee of the club for which he played. It has been held that a clause similar to those in the rules of the prosecutors which restrain a player from playing elsewhere than with the club with which he is registered without a clearance are void as in restraint of trade: see Wilberforce J. in Eastham v. Newcastle United Football Club Ltd. (1964) Ch 413 ; Blackler v. New Zealand Rugby Football League (Incorporated) (1968) NZLR 547 ; also Buckley v. Tutty. But in those cases the restraint of trade was found in the limitation on the freedom of the players to take employment, not of course on the footing that the employers were in trade or trading. However, the code of football in the New Zealand case required the players to be amateurs: yet the restraint was void. (at p210)

61. Charges are made for admission to the grounds under the control of the Club to view the matches promoted by it: the proceeds of the admission charges are received by the State League but part thereof is distributed to the Club, as the Club expects and intends when conducting the matches. The moneys thus received by the Club, usually from the gate money, form a substantial part of its income. It is true that no part of the income of the Club or League is distributable amongst its members. But considerable profit is made by the Club or by the State League out of which considerable assets are built up. (at p210)

62. In my opinion, the presentation of a football match as a commercial venture for profit to the promoting body is an activity of trade. I agree with Lord Russell in thinking that the presentation of a play by a theatrical promoter for reward by admission fees is a matter of trade: see Brimelow v. Casson (1924) 1 Ch 302 . I can see little difference between the presentation of a theatrical spectacle and the presentation for reward of the spectacle of a football match played by professionals as a major source of their income and of the income of the promoter. (at p211)

63. Here, however, the commercial activity of the Club is not limited to the promotion of football matches. A diverse range of advertising rights, television rights and sundry other rights are sold in connexion with the presentation of the matches. The detail of these activities may be read in the reasons for judgment of other Justices. Further, large sums are at times demanded by the Club for the release of players by clearance to play with other clubs: in general, no part of these moneys is paid to the player concerned. (at p211)

64. These activities, essentially commercial in nature, emphasize the trading quality of the manner in which the Club and the League promote Australian Rules Football. No doubt young players in junior leagues are encouraged by things done and moneys expended by the Club but one may be permitted to suspect that the motivation for the assistance of junior clubs is the prospect of a supply of players of quality to form the teams of the future from which the Club will reap financial benefits, and in any case, if purely philanthropic, these activities are of a minor character in relation to the activities of the Club as a whole. None of these activities are forbidden by the rules of the Club or of the State League. Indeed, the purpose of the associations, and thus of their corporation, is to do the very things which the Club and the State League are engaged in doing. In my opinion, the Club and the League are each trading corporations within the meaning of s. 51 (xx.) of the Constitution. (at p211)

65. Consequently, the order nisi for prohibition should be discharged, the prosecutors to pay the respondent's costs. (at p211)

GIBBS J. The circumstances of this case are set out in other judgments of the Court and I need not repeat them. (at p211)

2. The provisions of s. 45 of the Trade Practices Act 1974 (Cth), as amended ("the Act"), which are sought to be invoked against the prosecutors, the Western Australian National Football League (Incorporated) and the West Perth Football Club (Incorporated), are expressed to regulate the conduct of corporations. The expression "corporation" is defined in s. 4 of the Act, and the words of that definition which it has been submitted apply to the prosecutors are the following: ". . . a body corporate that - . . . (b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed . . ." (at p212)

3. However, by s. 6 of the Act its provisions are given an extended operation, which was explained in Reg. v. Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd. (1977) 136 CLR 235, at pp 244-245 . For present purposes it is sufficient to say that even if the prosecutors are not corporations within the meaning of the Act, s. 45 will apply to such of their conduct as takes place in the course of or in relation to trade or commerce among the States. The conduct complained of was the refusal of the prosecutors to grant a clearance to Mr. Adamson to enable him to play football with another club in South Australia. The facts that Mr. Adamson, if granted a clearance, might choose to move from Western Australia to South Australia, or that if he joined the club in South Australia he might play matches against teams from other States, or that the prosecutors might arrange or promote matches between teams drawn from different States, do not mean that the refusal to grant a clearance was conduct in the course of or in relation to interstate trade. The authorities cited by my brother Mason in his judgment clearly dispose of that contention. (at p212)

4. It follows that if the prosecutors are to be subject to the provisions of s. 45 of the Act, that can only be because each is a "trading corporation" within the definition contained in s. 4 of the Act. It is obvious that the Act is intended to be an exercise of the powers conferred by s. 51 (xx.) of the Constitution, inter alia, and that the words of the definition which I have quoted are intended to have the same meaning as those of s. 51 (xx.) of the Constitution. We must therefore turn to consider the meaning of the latter provision. I do not dissent from the proposition that the words of the Constitution should not be restrictively construed, and it can hardly be doubted that the application of particular terms is not restricted to those things known in 1901. However, the words themselves cannot be ignored; it is their meaning that has to be determined. I have already expressed my views as to the meaning of the words "trading corporations" where they appear in s. 51 (xx.) in Reg. v. Trade Practices Tribunal; Ex parte St. George County Council (1974) 130 CLR 533, at pp 561-562 and I adhere to what I there said. The present case is of course quite distinguishable on its facts from the St. George County Council Case (1974) 130 CLR 533, at pp 561-562 . However, in that case at least four of the members of the Court held that the words "trading corporation" do not simply mean any corporation which trades (1974) 130 CLR, at pp 546, 553, 561, 572 , and the decision to that effect should in my opinion be followed. The words of par. (xx.) when read together leave no doubt in my mind that the word "trading", like the words "foreign" and "financial", is used in that paragraph as an epithet describing a particular kind of corporation, and is not simply referring to what a corporation does, or to what its main activities happen to be. Of course, what a corporation does may throw light on what it is, and I do not intend to suggest that the memorandum of association, or other constitutional document, of a corporation, is the sole source of information as to whether it was formed for the purpose of trading. If, contrary to my opinion, the activities of a corporation at the relevant time determine whether it satisfies the constitutional test, it is the "predominant and characteristic activity" that has to be considered: St. George County Council Case (1974) 130 CLR, at p 543 . In my opinion, on any view of the construction of s. 51 (xx.), the prosecutors are not trading corporations within that provision, and they therefore are not corporations within s. 45 of the Act. I agree with what my brother Stephen has written in support of this conclusion, and could not usefully add to what he has said. (at p213)

5. The question that remains is whether in these circumstances prohibition lies to the Federal Court. By s. 19 (1) of the Federal Court of Australia Act 1976 (Cth) the Federal Court is given such original jurisdiction as is vested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament. By s. 32 (1) of that Act it is provided:

"To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked."

Jurisdiction in respect of matters arising under the Act is vested in the Federal Court by s. 86 of the Trade Practices Act, and the power which the Federal Court is asked to exercise in the present case is that conferred by s. 80 of the Act - in particular the power to grant an injunction restraining a contravention of a provision of Pt IV of the Act, in which s. 45 appears. If the prosecutors are not trading corporations, none of these provisions empower the Federal Court to grant any of the relief sought. That is not in contest, but it is said on behalf of the respondents that the Federal Court nevertheless has jurisdiction to decide the question whether the prosecutors are trading corporations. In support of this argument we have been reminded that from any decision of the Federal Court an appeal may be brought to this Court, at least by special leave (s. 33 of the Federal Court of Australia Act 1976) and that the Parliament has confided to the Federal Court wide powers to make a declaration as to the operation or effect of the provisions of the Act: s. 163A of the Trade Practices Act. (at p214)

6. Prohibition lies where a court is proceeding without jurisdiction, but not to correct an erroneous decision made by a court in the exercise of a jurisdiction which it possesses. A legislature, in conferring jurisdiction upon a court, may make the existence of a state of facts a condition upon which the jurisdiction of the court depends, and in that case the court cannot give itself jurisdiction by erroneously deciding that the facts exist. On the other hand the legislature may entrust the court with power to determine whether such a state of facts exists, and if so the court has jurisdiction to determine all the facts, including the preliminary facts on the existence of which the jurisdiction depends. This distinction was explained by Lord Esher M.R. in Reg. v. Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313, at pp 319-320 in a passage which has frequently been cited. In Parisienne Basket Shoes Pty. Ltd. v. Whyte (1938) 59 CLR 369, at p 391 Dixon J. said that the former of those possible courses "produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed". However, where the court is one created by the Parliament acting under the limited powers given by the Constitution the existence of a state of things necessary to bring the case within the scope of those powers must be a condition of the jurisdiction of the court. As Dixon J. said in R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at p 616 :

"It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution."

It must inevitably follow that - ". . . power to determine conclusively a question upon which jurisdiction is made to depend cannot validly be conferred upon a person or body in such manner as to enable a jurisdiction to be exercised which would exceed the limits of constitutional power." R. v. Blakeley; Ex parte Association of Architects, etc. of Australia (1950) 82 CLR 54, at p 89 per Fullagar J. (at p215)

7. Further, it is settled by cases too numerous to mention that the Parliament has no power to exclude the original jurisdiction conferred on this Court by s. 75 (v.) of the Constitution in matters in which prohibition is sought against "an officer of the Commonwealth", and that the lastmentioned expression extends to judicial officers. (at p215)

8. The fact that a person whose conduct is said to be regulated by s. 45 of the Act is a trading corporation within s. 51 (xx.) of the Constitution is a condition of the jurisdiction of the Federal Court in a case such as the present. If that were not so, the investiture of jurisdiction on that Court would be pro tanto invalid. In the present case the question whether the prosecutors are trading corporations is therefore a jurisdictional, preliminary or collateral fact which this Court must decide for itself on an application for prohibition. (at p215)

9. Of course it does not follow that the Federal Court would have had no power to decide whether the prosecutors were trading corporations. If the proceedings in the Federal Court had not been interrupted by the present application for prohibition, that Court would have been obliged to decide that question for the purpose of determining whether it had jurisdiction. When the question is raised before a court of limited jurisdiction whether a condition of its jurisdiction has been satisfied, that court is not obliged immediately to refrain from proceeding further. It can and should decide whether the condition is satisfied and whether it has jurisdiction to proceed, but its decision is not conclusive. This was clearly explained by Devlin J. in R. v. Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek (1951) 2 KB 1, at p 10 where his Lordship said:

"When, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to their jurisdiction, the tribunal have to make up their minds whether they will act or not, and for that purpose to arrive at some decision on whether they have jurisdiction or not. If their jurisdiction depends upon the existence of a state of facts, they must inform themselves about them, and if the facts are in dispute reach some conclusion on the merits of the dispute. If they reach a wrong conclusion, the rights of the parties against each other are not affected. For, if the tribunal wrongly assume jurisdiction, the party who apparently obtains an order from it in reality takes nothing. The whole proceeding is, in the phrase used in the old reports, coram non judice."

Similarly in R. v. Blakeley; Ex parte Association of Architects, etc. of Australia, Kitto J. said (1950) 82 CLR, at p 98 :

"The tribunal may, and should, inquire whether the state of things exists upon which its power depends, but only for the purpose of deciding whether it will act on the basis that its power is exercisable or on the basis that it is not. The superior court, however, inquires whether the fact exists, for the purpose of giving a binding decision on the question . . ."

The observations of Latham C.J. (1950) 82 CLR, at pp 69-70 and of Fullagar J. (1950) 82 CLR, at pp 90-91 are to the same effect. (at p216)

10. The existence of a right of appeal does not bar the power of a superior court to grant prohibition: see the cases cited in de Smith: Judicial Review of Administrative Action, 3rd ed. (1973) p. 375 and Halsbury's Laws of England, 4th ed. vol. 1, par. 130, n. 12. An additional reason for holding that the existence of a statutory provision providing a right of appeal does not deprive this Court of the power to grant prohibition in a case such as the present is that any legislative provision which had the effect of derogating from the remedy provided by s. 75 (v.) of the Constitution would be invalid. For reasons similar to those I have already expressed, the provisions of s. 163A of the Act do not support the view either that the Federal Court has exclusive jurisdiction to decide the present question or that prohibition does not lie. (at p216)

11. However, prohibition is discretionary (at least where lack of jurisdiction is not patent) and in some cases it would be convenient to defer the hearing of an application for prohibition until further proceedings had been taken in the tribunal against which prohibition was sought. This might be because a decision in favour of one party would render academic the question whether prohibition should be granted, or because it would assist this Court in discharging its ultimate responsibility if evidence were taken in the tribunal below. Those examples are not intended to be exclusive. However, in the present case such evidence as the parties thought necessary to adduce was presented to this Court, and if, on that evidence, we conclude that the prosecutors were not trading corporations within s. 51 (xx.), there can in my opinion be no reason to decline to grant prohibition. (at p216)

12. For these reasons I would make absolute the order nisi. (at p216)

STEPHEN J. On the question of whether or not the prosecutors and the South Australian National Football League (Incorporated) are "trading corporations" for the purposes of the Trade Practices Act I have the misfortune of disagreeing with other members of the Court. I will state quite shortly my reasons for doing so. (at p217)

2. There is, I think, no doubt but that the three bodies here in question are corporations: it is their character as "trading" corporations that I do not accept. (at p217)

11. It follows that in my view Reg. v. Trade Practices Tribunal; Ex parte St. George County Council (1974) 130 CLR 533 was wrongly decided and should be overruled. (at p239)

12. The question is not whether the prosecutors and the S.A. League are sporting clubs (no doubt, they are), but whether any of them is a trading corporation. Afew centuries ago trade was mostly centred around primary industry, a generation or so ago mostly around secondary industry; now it is overwhelmingly centred around tertiary industry. Most Australian workers now work in areas of entertainment, information, education, health, tourism, leisure, sport, transport and similar services. Many activities which once would not have been regarded as trade have come to be recognized as trade (see Walker v. Crystal Palace Football Club Ltd. (1910) 1 KB 87 and Brimelow v. Casson (1924) 1 Ch 302 ). The commercialization of sport, education, religion, medicine and other social or professional activities is a world-wide phenomenon. The prosecutor, Western Australian National Football League (Incorporated) and the S.A. League are engaged in very substantial trading, in charging for admission, putting on public spectacles for profit, selling television rights and selling goods; the West Perth Football Club (Incorporated) is a trader on a smaller scale. All three are trading corporations. (at p240)

13. Prohibition should be refused. It is not therefore necessary to decide whether the prosecutors or the S.A. League are also engaged in trade and commerce among the States. (at p240)

14. The order nisi should be discharged. (at p240)

AICKIN J. In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Stephen with which I am in complete agreement. There is nothing which I wish to add on the question whether the corporations in question are "trading corporations" within s. 51 (xx.) of the Constitution; I am satisfied that they are not. (at p240)

2. On the question of the availability of a writ of prohibition I would add that, in my opinion, the existence of a right of appeal from the tribunal sought to be prohibited is not a basis for refusing the writ where want of jurisdiction is made out. The general rule as to prohibition is that it goes ex debito justitiae, though there may be circumstances where it may be refused if there has been acquiescence, waiver or delay, but even those are limited (see Broad v. Perkins (1888) 21 QBD 533 ). The existence of an alternative remedy does not destroy the right to a prohibition or give a discretion to refuse it: Burder v. Veley (1840) 12 Ad &E 233, at p 263 (113 ER 801, at p 812) per Denman C.J. in the Court of Queen's Bench, and see the same case in the Court of Exchequer Chamber (1841) 12 Ad &E 265, at pp 313-314 (113 ER 813, at p 831) , per Tindal C.J.; R. v. Justices of Brisbane; Ex parte The Treasurer (Q.) (1901) 11 QLJ 77, at p 79 , per Griffith C.J., as well as the cases cited by the Chief Justice in the present case. (at p241)

3. Here the alleged absence of jurisdiction does appear on the face of the proceedings in the sense in which that expression is used in this context: Farquharson v. Morgan (1894) 1 QB 552, at p 563 ; Alderson v. Palliser (1901) 2 KB 833, at p 836 , per Vaughan Williams L.J. It is therefore proper, as well as convenient, for the Court to consider at this stage whether there is want of jurisdiction in the Federal Court. The judges of the Federal Court are officers of the Commonwealth within the meaning of s. 75 (v.) of the Constitution and accordingly prohibition will issue to them in a proper case. (at p241)

4. In my opinion the Federal Court has no jurisdiction to entertain the proceedings now in question because the only basis on which its jurisdiction could rest depends on the corporations in question being "trading corporations" within the meaning of that expression in s. 51 (xx.). In my opinion they are not trading corporations in that sense and accordingly I would make the order nisi absolute. (at p241)

Orders

Order nisi for writ of prohibition discharged.

Prosecutors to pay the respondent's costs.