R v Spicer; Ex parte Foster [1958] HCA 8

ae

100 C.L.R.] OF AUSTRALIA. 163

(HIGH COURT OF AUSTRALIA.]

THE QUEEN

AGAINST

SPICER AND OTHERS ; Ex parte FOSTER AND OTHERS.

Industrial Law (Cth.)—Statutory provision authorising directions as to performance H.C. o¥ A. or observance of rules of registered organisations—Held applicable in relation to 1958. conduct of elections of office bearers—Subsequent enactment of provisions with = "~~ respect to disputed elections—Purported election of office bearers—Dispute— Sypnvy, Application made under earlier provision and direction given—Prohibition Mar. 25, 26. sought on ground that subsequent provision had restricted operation of earlier | —— provision in relation to disputed elections—Subsequent provisions cumulative Meveraan' upon and not substitutional for earlier provisions—No implied repeal of earlier Williams, provisions in relation to disputed elections—Prohibition refused—Conciliation Fullagar and and Arbitration Act 1904-1956, Pt. VIII, s. 141, Pt. IX. Taylor ad.

'The provisions now standing as Pt. IX—" Disputed Elections in Organiza- tions " of the Conciliation and Arbitration Act 1904-1956, notwithstanding their wider and different ambit, are cumulative upon and not substitutional for the provision now contained in s. 141 (formerly s. 81) the ambit of which they do not trench upon or reduce.

Barrett v. Opitz (1945) 70 C.L.R. 141, applied.

'The jurisdiction conferred by s. 141 of the Conciliation and Arbitration im Act 1904-1956 on the Commonwealth Industrial Court is conferred in permissive terms and the court has a discretion. In a case which it thinks unsuitable for the operation of s. 141 the court may hold its hand so that an application 'may be made under Pt. IX.

rr 0.

Orper Nis for Pronrerrion.

On 10th January 1958 McTiernan J. on the application of Terence John Foster and others, being members of the Australian Builders' Labourers' Federation, New South Wales Branch, granted an order nisi directed to the Honourable John Armstrong Spicer, Chief Judge { of the Commonwealth Industrial Court, and the Honourable Edward

_ Arthur Dunphy and the Honourable Sir Edward James Ranembe Bs Morgan, Judges of such court, and one John Wishart calling upon the

vo

H.C. or A.

1958. —

Tue QuEEN v. Srrcer ; EX PARTE Foster.

HIGH COURT

respondents to show cause before the Full Court of the High of Australia why a writ of prohibition should not issue out of the said High Court directed to the said Chief Judge and Judges of th Commonwealth Industrial Court prohibiting them and each of ther from proceeding further upon the order made in matter no. B no, 73 of 1957 upon the following grounds namely :—(1) The Commonwealth Industrial Court had no jurisdiction under s. 141 of the Conciliatio and Arbitration Act 1904-1956 to make the said order in that thy power of the said Commonwealth Industrial Court to deal with th subject matter of the claim before the said court in the aboye- mentioned matter and to make the order thereby sought was exclu sively defined by the provisions of Pt. IX of the said Act and that upon the true construction of the said Act s. 141 must be rea subject to those provisions. (2) The Commonwealth Industrial Court had no jurisdiction under s. 141 of the Conciliation am Arbitration Act 1904-1956 to deal with the claim by a member o an organisation registered under the said Act that there has been an irregularity in or in connexion with an election for office in such organisation and to make any order as aforesaid. The order against which prohibition was sought had been made by Dunphy J. on 14th November 1957 at the instance of the respon- dent Wishart and directed that the purported election of certais persons to the offices of branch secretary, delegates from the bra to the federal council and committee-man on the executive com of the branch for the Australian Builders' Labourers' Federati New South Wales Branch, should be treated as void and that in

case of the offices of branch secretary and delegates new ele should be held.

E. 8. Miller Q.C. (with him L. K. Murphy), for the prosecuto The introduction of the now Pt. IX into the Conciliation a Arbitration Act requires that the present s. 141, which does n refer specifically to elections, be limited as a matter of constructi0 so as to preclude the Commonwealth Industrial Court from dealit with questions of disputed elections under an application for enforcement of the rules of an organisation. Section 141 should! construed as no longer applying to the question of irregularity elections or alternatively as requiring the exercise of the pow contained in Pt. IX in relation to such questions. The decisi in Barrett v. Opitz (1) proceeded upon the basis of the then of the legislation which did not include the disputed provisions, these being first introduced into the Conciliation

(1) (1945) 70 C.L.R. 141,

100 C.L.R.] OF AUSTRALIA.

Arbitration Act in 1949. The Court will not by virtue of that decision be precluded from giving effect to the construction for which we contend. [He referred to R. v. Wallis (1); Crates on Statute Law, 5th ed. (1952), p. 345; Anthony Hordern & Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia (2); B. v. Metal Trades Employers' Association ; Ex parte Amalga- mated Engineering Union (Australian Section) (3); Williams v. Aus- tralian Railways Union (4); Ahearn v. McKeon (5); Lawrence v. Atkins (6); Reg. v. Commonwealth Court of Conciliation and Arbitra- tion; Ex parte Amalgamated Engineering Union (Australian Sec- tion) (7) Craies on Statute Law, 5th ed. (1952), pp. 203, 205 ; Moss v. Elphick (8).] If we be not right in our submission, then the same matter can be dealt with under s. 141 and under Pt. IX and for breach of an order under s. 141 a penalty different from that for breach of an order under Pt. IX is provided: see s. 166. This illustrates that the legislature cannot have intended s. 141 to have the same wide operation after the enactment of the disputed elec- tions provisions as it had before. The Act must be construed apart from the history of s. 141 and its predecessors and Pt. IX, and so construed the prosecutors' submissions should be upheld. [He then sought the inclusion of further grounds in the order nisi and dealt therewith at some length. These do not call for report.

R. J. Ellicott, for the respondent Chief Judge and Judges of the Commonwealth Industrial Court to submit to such order as the Court should see fit to make.

Simon Isaacs Q.C. (with him J. D. Milford), for the respondent. Wishart. [At the invitation of the Court he addressed himself first to the additional grounds sought to be included by the prosecutors in the order nisi and, having done so, was then stopped. ]

E. 8. Miller Q.C., replied on the additional grounds.

The oral judgment of the Court was delivered by Dixon C.J. :— This is an application to make absolute an order nisi for a writ of prohibition granted by McTiernan J. The prohibition sought would, if granted, be directed, I think, to Dunphy J., although the other two judges of the Commonwealth Industrial Court were

(1) (iss) 78 C.L.R. 529, at pp. 549- (5) (1951) 72 C.A.R. 93, at pp. 96-98 ; 100. (2) (1932) 47 C.L.R. 1, at pp. 6, 7,20, (6) (1952) 74 C.A.R. 139, at p. 141. aI, (7) (1953) 89 C.L.R. 636, at pp. 646, (3) (1951) 82 C.L.R. 208, at pp. 254- 647. 256, 265, 266. (8) (1910) 1 K.B, 846, at pp. 848, 849. (4) (1953) V.L.R. 145, at pp. 153, 154.

H.C. or A.

1958. Ww

'Tue Queen v. Sricer ; Ex PARTE Foster.

166 HIGH COURT [1958

H.C.or A. named in the order nisi as respondents. The application to 1958. McTiernan J. was granted, a little reluctantly I think, and h yea Honour refused to include certain grounds, intimating however th v. he would see no objection to an application to include those grounds prices being made to the Full Court on the return ot the order nisi. We Fosrex. have heard an application for the inclusion of those grounds pmonos, they have been explained to us and to a certain extent arg MeTiernan J. T do not propose to say more about them than that having gone into

webb them we think that his Honour was well justified in not including taylor J. them in the order nisi. We do not think the objections to the order made by Dunphy J. so far as they rest on these additional ground

disclose in the circumstances a proper case for the issue of a writ prohibition. 7

The ground upon which his Honour did grant the order nisi and

upon which it has been moved absolute depends on the construeti

of the Conciliation and Arbitration Act 1904-1956. The order

against which the prohibition is sought was made by Dunphy J.

under the provision which appeared as s. 81 in the Conciliation and Arbitration Act 1904-1955 and now stands in the Act of 1904-

ass. 141. The provision has not been altered. Sub-section (1) of -

s. 141 provides that the Commonwealth Industrial Court may, upon complaint by any member of an organisation and after giving a ny

person against whom an order is sought an opportunity of being

observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules. In 1945. the provision standing as it did as s. 81 was expressed to confer like jurisdiction on the Court of Conciliation and Arbitration. that year this Court placed an interpretation upon it in Barrel v Opitz (1). The decision meant that the provision might be applie

visions with respect to disputed elections which were subsequentl introduced by s. 6 of Act No. 28 of 1949 formed no part of # legislation. Under the title of " Disputed Elections in Organizi tions " those provisions were introduced as Div. 3 of Pt. VI of th Conciliation and Arbitration Act 1904-1949. They now stand

Pt. IX of the Conciliation and Arbitration Act 1904-1956. The

related to a disputed election. Upon that application the Piper Chief Judge had made an order directing a federal exec!

(1) (1945) 70 C.L.R. 141.

—

100 C.L.R.] OF AUSTRALIA.

of a registered organisation to recognise certain persons as branch councillors duly elected to that office and to refrain from recognising other persons. The order was made under s. 81 and depended upon the rules of the organisation. It purported to give directions for the observance of those rules. Sections 159-168 in Pt. IX of the Act of 1904-1956 provide machinery for an inquiry by the Industrial Registrar into the conduct of an election of officers of an organisation and confer upon the Commonwealth Industrial Court powers to make orders and give directions relating to such matters. The provisions are full and relate to elections which are pending and to elections which have taken place. They cover questions of regularity as well as validity.

In Barrett v. Opitz (1) the whole question was one of validity. It is not necessary to go into the facts of the present case ; it is enough to say that within the branch of the organisation with which the case is concerned an election took place. The application was made under s. 141 to the Commonwealth Industrial Court, and Dunphy J. who heard the application made the order which is now challenged upon this order nisi for prohibition. The validity of the the order made by Dunphy J. must depend upon the applicability ofs.141. Guided, as one would think, to some extent by the order of Piper Chief Judge which was upheld in Barrett v. Opitz (1), Dunphy J. directed that the respondents to the application before him should treat as void the purported election for the positions of certain branch officers and should thereupon cause to be conducted and should conduct another election for those positions. The latter direction was of course based upon the view expressed in the earlier part of the order that the prior election was void. The ground upon which the order nisi for prohibition against this order is based is that since the enactment of what is now Pt. IX, s. 141 ought not to be construed as enabling such an order to be made. The argument is that by the enactment of the provisions now standing as Pt. IX there was an implied restriction upon the operation of the provisions now standing ass. 141. Part IX deals, so it is said, with the whole subject matter of disputed elections afresh and deals with it in a manner showing that the legislature considered that the jurisdiction of the court should be regulated by certain conditions and qualifica- tions and that the court should possess a discretion which it might

_ exercise for the attainment of the main purpose. On these grounds

it is said that by the enactment of these provisions in 1949 the legislature trenched upon the jurisdiction which, according to the

(1) (1945) 70 C.L.R. 141.

H.C. or A.

1958. Se Tue Queen v. SPICER ; EX PARTE Foster.

'Taylor J.

H.C. oF A.

1958. Ww 'THe QUEEN v. SPICER ; EX PARTE Foster.

Fullagar J. 'Taylor J.

~ no ground for regarding the new provisions as intending to chan

HIGH COURT

decision of this Court in Barrett v. Opitz (1), the provisions of what is now s. 141 confer. 3

We think that the short answer to this argument is that when new provisions now standing as Pt. IX were introduced they w intended to be cumulative upon and in no degree substitutional the provision now contained in s. 141. The decision in Barrett y, Opitz (1) had given a meaning to s. 81, as it then stood, and there is

the operation or the meaning of what is now s. 141. There is of course nothing contrary to principle in an argument that a lat statutory provision dealing with a subject matter may be taken impliedly to repeal an earlier statutory provision in so far as it might extend to any part of the same subject matter. But in th present case the two sets of provisions deal with entirely different aspects of the administration of the rules of registered organisatio: Part IX is devoted entirely to elections. But it treats of election to offices from various points of view; irregularity, not me validity ; fairness and propriety and bona fides, not merely enforce ment of the rules of an organisation. Section 141 is not concern with elections as such. It is concerned with compliance with the rules of a registered organisation and it gives jurisdiction to Commonwealth Industrial Court to enforce compliance. Becai elections take place in accordance with the rules of an organisati it becomes possible, as Barrett v. Opitz (1) decided, to give direction that a rule shall be observed in such a matter. But we do not thin that it at all follows that the later provision with its wider and different ambit was intended to whittle down, trench upon or reduce the ambit of the earlier provision.

Tt seems to be suggested that Barrett v. Opitz (1) gave an unnece sarily wide meaning or application to s. 81. There are two obse tions to be made concerning that decision. First of all it was decision of the Full Court which followed previous decisions and placed a meaning on the provision which must have been known t the legislature. Yet there are no references in Pt. IX directed to th provision, no indication of intention to detract from the mea ning assigned to it. In the second place the Commonwealth Industria Court is not bound under s. 141 to exercise its jurisdiction. It is jurisdiction which is conferred in permissive terms and the Court hé a discretion. In a case which it thinks unsuitable for the operatio

of s. 141 it may hold its hand so that an application may be ma under Pt. IX.

(1) (1945) 70 C.L.R. 141.

100 C.L.B.] OF AUSTRALIA.

It is perhaps unnecessary to add that, when Act No. 28 of 1949 was passed, the present Commonwealth Industrial Court had not been established, and of course that was so when s. 81 was introduced. The jurisdiction given by s. 81, however, was declared to be judicial power, as appears from Barrett v. Opitz (1).

For those reasons we think that the order nisi should be discharged.

Order nisi discharged. Costs of the applie- ation to be paid by the prosecutors.

Solicitors for the prosecutors, Morgan Ryan & Brock.

Solicitor for the respondent Chief Judge and Judges of the Commonwealth Industrial Court, H. E. Renfree, Crown Solicitor for the Commonwealth.

Solicitor for the respondent Wishart, Harold Munro.

R. A. H.

(1) (1945) 70 C.L.R. 141.

H. C. or A. eS

'Tue QuEEN v. SPICER ; EX PARTE Foster.