MURRAY AND OTHERS; Ex PARTE PROCTOR AND OTHERS. Industrial Arbitration (Cth.)-Conciliation and arbitration-Coal mining-Local
Reference Board-Meeting-Quorum-Less than required number of members present-Order-Validity-Prohibition-Defence (Transitional Provisions) Act 1946-1947 (No. 77 of 1946-No. 78 of 1947)--National Security (Coal Mining Industry Employment) Regulations (S.R. 1941 No. 25-1948 No. 45), regs. 12, 13, 17.
Regulation 12 of the National Security (Coal Mining Industry Employment) Regulations provides for the constitution of Local Reference Boards consisting of a chairman and other members representative of employers and employees. Regulation 13 (2) provides that " The Chairman and half the other members of the Board as constituted for the time being in accordance with the provisions of this regulation shall form a quorum and when a quorum is present the Board may validly function notwithstanding that the representatives of one party have failed to attend." Regulation 17 provides that " a decision of a Local Reference Board shall not be challenged appealed against quashed or called in question or be subject to prohibition
in any court on any account Held that reg. 13 (2) made the presence of a quorum a necessary condition of the valid exercise by a Local Reference Board of its functions, and where a Board purported to act in the absence of a quorum prohibition would lie notwithstanding reg. 17 of the regulations.
The effect of provisions expressed to protect orders from challenge and to make them not subject to prohibition discussed, both as a matter of inter- pretation and under the Constitution.
ORDER NISI for prohibition.
In July 1948 there arose at the Burgowan No. 10 Colliery, Torbanlea, Queensland, a dispute as to whether contract miners
could be required to erect cogs as directed by the manager or whether such work should be done by shiftmen, or employees other than contract miners. This dispute was referred to the Local Reference Board (Queensland) established under the National Security (Coal Mining Industry Employment) Regulations. The representative members of the Board, being equally divided on the matter, the chairman, on 24th September 1948, determined that the contract miners at the colliery could be required by the management to erect cogs as and where necessary if it did not prefer to use shiftmen labour for the work, the price payable to contract miners to be at the rate of 2s. 3d. per foot in height for filled cogs.
The miners employed at the colliery refused to accept the decision
SO made and to erect cogs at the direction of the manager of the colliery, and were dismissed from their employment.
The appointment of the chairman of the Board expired in October 1948, and Mr. Murray was appointed chairman in his stead.
At a meeting of the Board held on 19th November 1948 the Queensland Colliery Employees' Union applied for a review of the decision and the members present not being unanimous the chair- man, Murray, decided that the decision could and should be reviewed.
The dispute was next dealt with at…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Murray; ex parte Proctor [1949] HCA 10
Case
[1949] HCA 10
Decision Date
CaseChat Overview and Summary
This case concerned an application for a writ of prohibition brought by the owners of the Burgowan No. 10 Colliery against the chairman and members of the Local Reference Board (Queensland) and the Queensland Colliery Employees' Union. The dispute arose from a decision of the Board on 7 December 1948, which ordered the reinstatement of dismissed employees and the resumption of work under pre-stoppage conditions. The applicants sought to prohibit further proceedings on this order, arguing it was invalid.
The central legal issue before the High Court was whether the Local Reference Board had validly exercised its functions when making the order on 7 December 1948. This question hinged on two primary considerations: firstly, whether a quorum was present at the meeting, as required by regulation 13(2) of the National Security (Coal Mining Industry Employment) Regulations; and secondly, whether regulation 17, which purported to prevent any decision of a Local Reference Board from being challenged, appealed against, quashed, called into question, or subject to prohibition, precluded the Court from issuing a writ of prohibition.
The Court reasoned that regulation 13(2) made the presence of a quorum a necessary condition for the valid functioning of the Board. It was established that on 7 December 1948, only the chairman, Mr. Millar, and Mr. Tucker were present as employee representatives, with no employer representatives attending. Given the composition of the Board, this number did not constitute the required quorum. While regulation 17 sought to exclude judicial review, the Court held that such a provision could not override the constitutional jurisdiction of the High Court under section 75(v) of the Constitution to issue writs of prohibition against officers of the Commonwealth. Therefore, as a quorum was not present, the Board lacked the authority to make a valid order, and prohibition would lie notwithstanding regulation 17.
Consequently, the order nisi for prohibition was made absolute against the respondents Murray, Millar, and Tucker, and the Queensland Colliery Employees' Union. No order was made against Mr. Caldwell, who had not acted as a member of the Board.