R v Foster; Ex parte

[1953] HCA 86

88 C.L.R.] OF AUSTRALIA.

549

[HIGH COURT OF AUSTRALIA.]

THE QUEEN

AGAraST

FOSTER AND ANOTHER;

Ex P a r t e THE

COMMONWEALTH

STEAMSHIP OIVNERS’ ASSOCIATION AND ANOTHER.

Industrial Arbitration (Cth.)— Industrial dispute—Industrial matter—Marine and

H. C. o r A.

power engineers— Existing award— Calculation of wages prescribed—Basic

1953.

wage— Quarterly adjustment—Inclusion in award—Suspension— Application to

court—Refusal—Jurisdiction—“ Law of the Commonwealth ”—Mandamus— Sydney ,

Navigation Act 1912-1952 {No. 4 of 1913—No. 109 of 1952), Pt. I I . , Div. 16,

Dec. 2, 3.

Pt. X a ., s s . 405g, 405h, 405j , 405k, 405l, 405m, 405q—Conciliation and

Dixon C.J.,

FuUagar, Webb, Kitto and

Arbitration Act 1904-1952 (No. 13 of 1904—No. 34 of 1952), ss. 48, 50, 120.

Section 405q of the Navigation Act 1912-1952 which provides tha t an order or award under P t. X a . of the Act “ does not have effect to the extent (if any) to which it is inconsistent with a law of the Commonwealth . . . ” does not prevent the judge of the Court of Conciliation exerci.sing jurisdiction under P t. X a . of the Navigation Act from making a valid and effective award which is inconsistent with an existing award binding the same parties and made pursuant to the Conciliation and Arbitration Act 1904-1952 before the coming into operation of P t. X a . of the Navigation Act.

Taylor JJ.

Circumstances in which a writ of mandamus will issue considered.

Mandajvius.

Clause 18 of tlie Marine Engineers Award, made on 17th September 1952, provided that the monthly cash basic wage to be paid for work done before 1st August 1952 should be paid at the rate of £38 16s. Od. per calendar month and that for work performed during each future period of three months beginning with a 1st day of August, or of November, or of February, or of May respectively, the amount of the said basic wage should be adjusted by the method shown according to the position and fluctu­ ations, if any, of the retail price index numbers (third series) of the Court of Conciliation and Arbitration.

550 HIGH COURT

[1953.

IT. 0. OK A. separate letters, each dated 30th September 1953, the Common- E)i .̂ wealth Steamship Owners’ Association, an organization of employers Till.’ Qmkkn award, and Huddart Parker Ltd., a member of that

V.association and bound by the award, notified the Australian

Fomtur;

Ex I'AimoInstitute of Marine and Power Engineers, an organization of

'I'llK

employees duly registered as such pursuant to the provisions

(''OJIMON-

„ of the Conciliation and Arbitration Act 1904-1952, which and

yTKAwsiiu' the mendicrs of which is and are respectively bound by the award,

Assocnv'noN

association and the company respectively thereby claimed

---- that, with effect as on and from 31st October 1953, the respective

basic wages for male and female employees covered by the award should, notwithstanding anything to the contrary contained in the award, not be altered or adjusted periodically or otherwise except by a further award of the court made under the Navigation Act 1912-1952.

A letter in similar terms was also forwarded by the association and the company to each of seven other employee-organizations in respect of other awards and agreements.

The claim not having been accepted or acceded to by the employee-institute and an agreement not having been reached between the parties, a summons directed to the employee-institute was issued out of the Court of Conciliation and Arbitration on behalf of the association and the company.

The summons came on for hearing on 29th October 1953, before Foster J. as the single judge exercising the powers of that court under and pursuant to the provisions of Pt. Xa. of the Navigation Act 1912-1952. His Honour found on the affidavits filed in connec­ tion with the application, that a dispute within the meaning of the Navigation Act existed and called for settlement by the court in terms of that Act. The solicitor for the respondents raised the pre­ liminary objection that because of s. 405q of that Act the judge did not have any power to make the order asked for in the summons as such order would be “ inconsistent with a law of the Common­ wealth ” , because, as he claimed, relying on Clyde Engineering Co. Ltd. V. Gowburn (1), the award of the court which prescribed a cost-of-living adjustment was a “ law of the Commonwealth ” ; that the court, acting under the jurisdiction conferred by the Navigation Act, because of ss. 405e and 405q did not have any power to enter the field occupied by decisions of the court made by virtue of the Conciliation and Arbitration Act 1904-1952 and continued in force by that Act and so “ becoming a law of the Commonwealth ” because to do so was expressly forbidden by

(1) (1926) 37 C.L.R. 406.

88 C.L.R.] OF AUSTRALIA.

551

s. 405q ; and in particular the judge could not in effect delete the

H. C. OF A.

cost-of-living adjustm ent clause from the court’s award or make

1953.

any award or order concerning it.T h e

Q u e e n

V.

The judge, after hearing the arguments submitted, ordered that the summons be struck out.

F o s t e r ;

Ex PARTE

T he

The association and the company applied to the High Court for a writ of mandamus commanding the judge to hear and determine

Com mon­

w ea lth

the summons upon the grounds ;—(1) that the judge declined to

Stea m sh ip Ow n e r s ’

hear and determine the matter solely because of an erroneous

A ssocia tion .

interpretation and application of s. 405q of the Navigation Act 1912-1952 ; (2) that the court had power and jurisdiction under the provisions of that Act to make an award to the effect sought in the summons ; (.3) that the court was not precluded by reason of the provisions of s. 405q or any other provision of that Act from making such award ; and (4) that an award to the effect sought by the summons would not be inconsistent with a law of the Commonwealth within the meaning of s. 405q .

The relevant statutory provisions are sufficiently set forth in the judgment hereunder.

0. J . Gillard Q.C. (with him R. L. Gilbert), for the prosecutors. The question at issue is : where there is an existing award made under the provisions of the Conciliation and Arbitration Act 1904­ 1952, providing for quarterly adjustments, is the court as set up under Pt. X a . of the Navigation Act 1912-1952, by reason of s. 405q of the latter Act, precluded from making a new award in a new dispute which would provide for the cessation of such adjustments ? The expression “ industrial matter ” has a very extended definition in the Conciliation and Arbitration Act but a very much narrower definition in the Navigation Act. I t is a definitive or limited definition and does not cover all the various matters which are set out in the first-mentioned Act. As shown by s. 405n in Pt. X a . inserted in the Navigation Act 1912, as amended by the Navigation Act 1952, that legislation finds power (1) in the arbitral power of the Commonwealth ; and (2) in the trade and commerce power. The effect of s. 405g is to take away from conciliation commissioners and the Conciliation and Arbitration Court, other than a single judge thereof, the power to deal with industrial matters as defined in s. 405a . There has not been any order or award in this case and consequently power has not been invoked under s. 405k . For errors in law the judge below has refused to exercise the juris­ diction conferred upon him, and this Court, having regard to what

552 HIGH COURT

[1953.

l[. C. OK A. Commomveahk Court of Conciliation and Arbitration ; Ex 'pa.rte Ozone Theatres {Aust.) Ltd. (1) should issue to him a

'I’ll 10 QflOION

maudauius to carry out the public duty cast upon him. The judge

V.took a,u orroueous view of the law and, consequently, on that basis

l ' ' o s T i o R

;

I 'A K T I Oho has refused jurisdiction. As he himself pointed out, s. 405q

Til 10

in terms does not take his jurisdiction away from him ; he still

( 'dm JION-

\V 10 A L T 11luis jurisdiction but he refrained from exercising it because he

STioAMsmi- believed that if he did make an award it would be quite ineffectual. Vss'hmation adopted by the judge, that is, of inconsistency, laid down ---- in Clyde Engineeriny Co. Ltd. v. Cowburn (2), namely, that if there is legislation already covering the field, then by virtue of this new legislation no further award or orders could be made, with the result that with the combined legislation in Pt. X a . and s. 48 (2) of the Conciliation and Arbitration Act these awards would be of indefinite duration. There are some awards, of course, which are applicable by virtue of the provisions of s. 48 (1). On clear legislative intention the court consisting of a single judge was given the preceding jurisdiction of making awards in industrial matters as defined. The judge was actuated by extraneous con­ siderations which were erroneous. The best illustration of what is now being submitted to the Court is shown in E. v. Goodrich (3) ; R. V. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (4) ; and R. v. Blakeley ; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (5).

[D ix o n C.J.

I think Mr. Macfarlan, it would be convenient for

you to be heard at this stage.]

B. P. Macfarlan Q.C. (with him C. M. Collins), for the respondent institute. I t is first submitted that apart from questions of construc­ tion of Pt. X a . of the Navigation Act 1912-1952, on ordinary prin­ ciples relating to mandamus it should not go in this case. The judge did not decline to exercise jurisdiction in the sense that he declined to consider the matter. The judge overruled a submission to the contrary made on behalf of this respondent and held that he did have power to make the order, but that, in the circumstances, and because of the view which he took of s. 405q, it was not a proper case for him to make an award. The judge did read the whole of the affidavits before him, and he did say in his judgment that he would have regarded himself as bound by the judgment of the Full Bench

(1.) (1949) 78 C.L.R, 389.

(4) (1949) 78 C.L.R., at pp. 398-400,

(2) (1926) 37 C.L.R. 466.

407, 408.

(3) (1850) 19 L.R. Q.B. 413.

(5) (1950) 82 C.L.R. 54, at p. 60.

88 C.L.R.] OF AUSTRALIA.

653

of the Arbitration Court of September 1953. Although not said

H. C. OJT A.

expressly, it follows, therefore, that the judge had intimated that

1953.

he was prepared to make an order deleting cl. 18 from the Marine

TirB

Q u een

F oster ; V.

Engineers Award 1952, and also that he entered upon his jurisdiction

and considered all the matters before him in the light of his

Ex PARTE

construction of the law. He assumed jurisdiction in full and made a

T h e

Com mon­

mistake, on the prosecutors’ hypothesis, in the view which he took

w ea lth

Stea m sh ip Ow n e r s ’

of s. 405q .

The judge was entitled to make a mistake of that kind.

I t was an essential step in the exercise of his jurisdiction that the

A ssocia tion .

judge should go to s. 405q because his very power to do anything arose from s. 405e and that section was expressed to be subject to s. 405q. The Ozone Theatres Case (1) is distinguishable. This was not a case where the judge stood on the threshold of the con­ sideration of the matter before him ; he considered everything that was there and available and was sought to be put before him, and on a consideration of the whole he made the determination he did. The only two alternatives open to the judge in this case on the construction of s. 405q were either to go right or to go wrong. Mandamus is a discretionary remedy. I t is a consideration of relevance to determine whether mandamus will go, that the court will give consideration to the other remedies which are available to the prosecutors to correct what they claim to be a wrongful exercise of jurisdiction or a wrongful failure to exercise jurisdiction. That is of significance when the only ground upon which it may be contended that the judge had declined jurisdiction was that he had misconstrued some relevant point of law. The prosecutors had two remedies open to them ; (1) the remedy of reference of the whole question involved to the Full Arbitration Court under s. 405h , or through the Chief Judge, which was empowered to deal with the whole question; or, upon the matter being completed,

(2) the right to appeal under s. 405k , and both those rights were

exercisable within fourteen days after the determination by the judge. This Court will, in exercising its jurisdiction, have regard to the legislative intention on these various matters. Although not conclusive it is a factor of weight in the exercise of a discretion. The reference and the appeal mentioned are relevant considerations of legislative intention. Also, the scheme of Pt. X a . of the Navigation Act 1912-1952 shows the intention of the legislature that these indu.strial problems were to be dealt with through the channels that that Act itself provided. If, as is submitted, the construction put upon s. 405q by the judge is correct then the question of mandamus fails completely. There is nothing in Pt. X a . of the

(1) (1949) 78 C.L.R. .389.

554 HIGH COURT

[1953.

H. (, OF A. (I'lrigalion Act, wliicli takes from tlie court under the Conciliation and Arbitration, Act the power to vary or rescind its own awards. Tun Qi'kunNothing in the Na,vi(/ation Act affects the power of the Court

V.of Conciliation and Arbitration or a conciliation commissioner

ICx p.Mmc or a.lt('rs the situation that an award made by that court prior

'I'm.;to this Act is still now an award of that court.

If the prosecutors

( 'o iM M O N -

desired that any awards jmeviously made by the Conciliation

W

K . . U . T I I

SiTF.vMsiiir a-iul Arbitrafion Court should be varied or rescinded, then they AssoFL̂ rmN-, va.ried or rescinded in either of those ways, and the

---- real didiculty which confronted the judge in this case would be

avoided. Section 405g does not exclude the power of variation. Section 405m does not incorporate any power which would authorize the court under Pt. X a . to vary the awards made by a prior tribunal. Section 405g relates to the making of orders and awards. “ Order ” includes “ variation The preservation of the power of the Con­ ciliation and Arbitration Court and of conciliation commissioners to vary its or his awards is a reasonable construction and gives a reasonable working operation to s. 405q itself. “ Law of the Com­ monwealth ” as used in s. 405g includes statute law, regulations and awards. By s. 405q the legislature has said all these laws, previous laws so understood, including this Act and including awards made under the Conciliation and Arbitration Act are to continue in force notwithstanding Pt. X a ., until such times as they may be lawfully varied. Force is given to that construction by the fact that there is preserved the power to vary those awards with which s. 405q says an award under Pt. X a . may not be inconsistent. That the word “ law ” has a wide meaning appears from the reference to Div. 15 of Pt. II. of the Navigation Act 1912-1952 in s. 405q . That reference indicates that there were a number of provisions of that Act in respect of which the legislature intended to say that the tribunal under Pt. X a . could not deal, and those provisions in Pt. II. relate to a large number of industrial matters. I t could not have been intended that the directions given by the Minister under the Navigation Act, or the directions given by the super­ intendents, were to be subject to variation by the tribunal under Pt. X a . E x parte McLean (1) and Cowburn’s Case (2) show it is not the inconsistency between the State law and the award which brings down the State law but it is the inconsistency between the State law and the Commonwealth law which either adopts or sanctions the award that is regarded as an inconsistency between the State law and the Commonwealth statute law itself. It is the expression of the Commonwealth law, the statute law ; the award

(1) (1930) 43 C.L.R. 472.

(2) (1926) 37 C.L.R. 46C.

88 C.L.R.] OF AUSTRALIA.

555

is only one manifestation of the operation of the Commonwealth

H. C. OF A.

law. The point of inconsistency arises when the State law prevents

1953.

the Commonwealth statute having that operation which the legis­T h e Q ueeit

lature intended it should have : see s. 109 of the Constitution.

V.

F oster ;

The rule nisi should be discharged. In any event, assuming that

Ex PAETB

the judge has erred in the construction which he has given, on

T h e

Common­

ordinary principles mandamus should not go in this case. Also, w ea lth

Stea m sh ip Ow n e r s ’

it should not go because on the true understanding of the law the

judge did not err.

A ssocia tion .

A. J. Hooke, for Foster J., submitted to any order that the Court deemed just.

0. J. Gillard Q.C., in reply.

Havigation Act 1912-1952. The prose­ cutors brought before the Commonwealth Court of Conciliation and Arbitration sitting under that Act an application by summons to hear and determine an industrial dispute. The industrial dispute was raised by a claim made by the prosecutors and not acceded to. The claim related to the provisions of existing awards which require the quarterly adjustment of the basic wage in the calculation of wages prescribed by those awards. The claim creating the industrial dispute sought an order or award which would have the effect of adopting the decision of the Full Arbitration Court that the quarterly adjustments should not be made. The learned Judge was of opinion that he could not, by reason of s. 405q of the Navigation Act 1912­

The judgment of the Court was delivered by :— judge of the Commonwealth Court of Conciliation and Arbitration acting under Pt. X a . of the

1952 make any effective award of that character, and he struck

out the summons.

Part Xa. of the Navigation Act was introduced into that statute by Act No. 109 of 1952. Its leading provisions invest the Common­ wealth Court of Conciliation and Arbitration with a specific juris­ diction to prevent or settle industrial disputes by conciliation or arbitration. “ Industrial dispute ” is defined by that Act to mean “ a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State ; and a situation which is likely to give rise to a dispute as to industrial matters which so extends ” . The Act also includes in the specific jurisdiction power to hear and determine industrial matters submitted to it in so far as those matters relate to trade and commerce with other countries or among the States or in a Territory of the Commonwealth, whether or not an industrial

55C) HIGH COURT

[1953.

ir. r. oa.' A.

dispute e.vists iti fclatioti to those matters. “ Industrial matters ”

11*58.is iui ex])res.si<m that is specially defined, to mean “ all matters in

relation to the salaries, wages, rates of pay or other terms and

'Fhe Q.iuoun

r. conditions of s(!i'v _‘masters, pilots or seamen ”.

F o s t e r

;

The dispute suhmitted to the learned judge fell within both of

b’. X

I’A K T E

Tiiio

those ])rovisions, or at all events within the latter. I t clearly

( ' O M M O N -

W E .M /n i

reliited to an indiistrial matter.

St e a ms III I’The Act l>y s. 4()5g provides that, “ Except as provided by this

O w i N E K S ’

A ssocia tion .

Part—(a) the Court or a Conciliation Commissioner is not empowered

Dixon C..T. to malcc an order or award in relation, to industrial matters ” .

Section 405q, upon which his Honour relied, provides that, extent (if any) to which it is inconsistent with a law of the Commonwealth other than Division 15 of Part II. of this Act ” . Division 15 of Pt. II. of the Act is a new division introduced by the same statute, No. 109 of 1952, in place of an old one, and relates to the subject of accommodation.

Webb .

Fulljigar .1.

R itto ,r.

“ An order or award under this Part does not have effect to the

Tiiylor J.

It is, of course, clear enough that the award which his Honour was invited to make by the application would be inconsistent with the existing provisions of the awards upon which it would have operated. His Honour took the view that the expression in s. 405q “ inconsistent with a law of the Commonwealth ” meant inconsistent with an award of the Commonwealth Court of Conciliation and Arbitration, at all events when that award was made by the Court before the operation of Act No. 109 of 1952 in relation to the subject matters with which that Act deals. For that reason he decided that it would be futile to attempt to make any award in relation to the specific industrial dispute brought before him, and he declined to entertain the matter further, and struck it out.

In our opinion the interpretation that his Honour placed on s. 405q is erroneous. The expression “ inconsistent with a law of the Commonwealth ” does not refer to industrial awards. It relates to laws made under the legislative powers of the Common­ wealth directly or indirectly. The whole subject matter wdth which it deals is itself inconsistent with the idea that the section was using the expression “ law of the Commonwealth ” to embrace industrial awards. That is not the natural meaning of the expression, and it is not a meaning that has hitherto been placed upon the expression.

It is said, however, that the case is not one for the use of the prerogative writ of mandamus for two reasons. The first reason is that the learned judge did not decline jurisdiction, but addressed

88 C.L.R.] OF AUSTRALIA.

657

his mind to the exercise of his jurisdiction and came to the con­

H. C. OF A.

clusion simply that it just ought not to be exercised. The second

19.53.

reason is that there are other remedies available under the Navigation

T h e Q u een

Act, and that the prerogative writ should therefore not be used

V.

F oster ;

until they have been resorted to and exhausted.E x

P.iRTE

T h e

As to the first ground, his Honour’s judgment makes it reasonably clear what view his Honour took. Having construed s. 405q as

Common­

w ea lth

Stea m sh ip Ow n e r s ’

making it impossible for him to make any award in relation to this

dispute which would have an operation that was effective, he said A ssocia tion .

that it was urged that the section meant that the intrusion of any

Dixon C.J.

other law-making authority into that field would be regarded as Webb J.

Fullagar J.

inconsistent legislation. His Honour then said : “ And that is

Kitto J. Taylor J.

the very thing that s. 405q explicitly invalidates. To intrude at all (except as to Div. 15 of Pt. II. of the Navigation Act) is to make a wholly inconsistent law and it is thus without any effect.” His Honour went on then to say that he accepted that view, and added : “ Obviously I should refrain from intruding and so avoid making a completely futile award or order.”

His Honour proceeded to say : “ I am to settle disputes and deal with industrial matters, but in so doing I must make no award or order inconsistent with an existing Commonwealth law, and, since that field is completely covered by the existing awards, there seems no room for awards or orders of mine. Of course the jurisdiction to make orders and awards is not the only jurisdiction conferred on me by the Act, but it is the one which falls in question in these proceedings. For these reasons I think the summons should be struck out.”

I t is clear that his Honour declined for an erroneous legal reason, a reason which we hold to be erroneous, to exercise the function that was committed to him by the Act. The decision which he gave was not an exercise of that authority, but a decision that it was not an occasion to exercise it and that relief should therefore be refused and jurisdiction should not be exercised. In his own words, the field was a field upon which he should not intrude because it was closed by s. 405q. We think that field was not closed by s. 405q. I t follows that he has not performed the duty which the statute lays upon him of hearing and determining the dispute.

The second suggestion that adecpiate remedies exist may be briefly dealt with. The remedies referred to are those created by new ss. 405h , 405j , 405k and 405l of the Act. Section 405h relates to the reference of industrial c[uestions to the Full Court of the Arbitration Court, and s. 405j relates to the hearing by the court of those questions. Section 405k , with leave of the Chief Judge,

558 HIGH COURT

[1953.

H.C. OF A.gives an appeal against any order or award and enables the court

1953. to deal with such an appeal. Section 405l gives a further power

T he Q uioion

of referring tpiestions of law to the Full Court.

V.I t is unnecessary to discuss those sections in detail because we

Fostuk :

]0X PAliTlOconsider that they do not in such a case as the present confer an

'I’ll 10

equally convenient, beneficial and effective remedy as mandamus.

Common­

w ealthThe present case is one in which relief may be more readily given

iS t e a m s h i p

in a mucli more effective manner and in a less embarrassing manner

Ow n e r s ’

A ssocia tion .to all the parties in this way than by taking the whole proceedings

up to the Full Court of the Arbitration Court in one or other of the

Dixon C.,r.

Webb ,7. ways which those remedies might allow.

Fullagar J.

We are therefore of opinion that the order nisi to hear and deter­ mine the application made by the summons according to law should be made absolute, and that the order should include an order that the respondents, the Australian Institute of Marine and Power Engineers, should pay the costs.

Kitto J.

Taylor J.

The order will be : Order absolute ; costs of the prosecutors against the Australian Institute of Marine and Power Engineers.

Orier absolute. Costs of the prosecutors against the Australian Institute of Marine and Power Engineers.

Solicitors for the prosecutors, Malleson Steivart efe Co., Melbourne. Solicitor for the judge, D. D. Bell, Crown Solicitor for the

Comm on weal th .

Solicitors for the respondent institute, Sullivan Brothers, Sydney.

.T. B.