Federated Carters & Drivers' Industrial Union of Australia v McKay [1922] HCA 2; (1922) 30 CLR 139 (24 March 1922)

HIGH COURT OF AUSTRALIA

The Federated Carters and Drivers' Industrial Union of Australia Informant, Appellant; and McKay Defendant, Respondent.

H C of A

Appeal from a Court of Petty Sessions of Victoria.

24 March 1922

Higgins and Starke JJ.

O'Bryan, for the appellant.

Lowe, for the respondent.

Higgins J.

We are of opinion that the appeal should be allowed. It appears that the defendant's manager, on his own reading of the award, refused to produce the time-book for inspection until the Union told him what was the breach suspected of the award. But it was not by the award made a condition precedent to the right to inspect that the Union or its officer should state the breach suspected. The words of clause 14 (b) of the award are, so far as is material:—[His Honor read the clause and continued:—] There are two conditions precedent to the right of inspection. They are set out in that clause and almost in the same sentence. For no demand for production "need be complied with" until after the expiration of seven days from the time when a list of members employed by the respondent has been submitted. This list was duly submitted by the Union. Again, one day's notice has to be given to the employer of any intended inspection; and this notice was given. But it is not made a condition precedent that the suspected breach should be stated to the employer. Indeed, in some cases such a statement might spoil the very object of the inspection. So far as to the reason given by the Police Magistrate for his order; and Mr. Lowe admits that he cannot support the order on the ground stated by the Police Magistrate. But Mr. Lowe has taken, as he is entitled to take, two other points in support of this order dismissing the information. One is that there is no evidence on the notes disclosing a refusal to produce the time-book between the hours of 10 a.m. and noon as prescribed by the award; and the second is that no proof was given at the hearing in the Police Court that there was good reason to suspect a breach of the award. With regard to that first point the Police Magistrate has said that "he found all the facts as deposed by the witnesses for the informant were correct, and that there was evidence on which he could convict if the informant's view of the law was correct." Looking at the Police Magistrate's statement and at the conduct of the case at the trial in the Police Court, it would be a hideous injustice if the mere absence from the notes of evidence that the refusal to produce took place between 10 a.m. and noon were to be decisive of the fate of this information. If the case be remitted, the point can be settled at the rehearing. With regard to the second point there is nothing in the award which, in my opinion, makes it necessary to prove that there was good reason to suspect. As my brother Starke has said, that is a matter which precedes the giving of the authority and is not a matter for proof at the trial. It may well be that the Union may be guilty of a breach of the award if it were to issue an authority without having good reason to suspect a breach. These two objections must, in my opinion, fail, as well as the reason given by the Police Magistrate.

We think that the proper order to make is:—Appeal allowed. Order appealed from set aside. Case remitted to the Court of Petty Sessions for rehearing. Respondent to pay the costs of the appeal, to be taxed. Costs of the first hearing to abide the result of the rehearing.

Starke J.

I agree.

Order accordingly.

Solicitor for the appellant, H. H. Hoare.

Solicitors for the respondent, Derham, Robertson & Derham.