Graziers' Association of NSW v Durkin [1930] HCA 22; (1930) 44 CLR 29 (14 August 1930)

Evatt K.C. (with him McKell), for the respondent, raised a preliminary objection.

The Graziers' Association of New South Wales, an organization of employers registered under Part V. of the Commonwealth Conciliation and Arbitration Act 1904-1928, has applied upon notice of motion given under Order XLI. of the Rules of this Court, for an order for the issue of a writ of attachment against the respondent for contempt consisting in disobedience of an order in the nature of an injunction made on 23rd June 1922 by this Court under sec. 48 of the Commonwealth Conciliation and Arbitration Act. The application therefore proceeds upon the assumption that obedience to an order made under sec. 48 may be enforced in the same way as obedience to orders made in the Court's ordinary jurisdiction directing a party to do or abstain from doing an act. The question at once arises whether this assumption is correct, or whether disobedience to orders made under sec. 48 exposes the party to the sanctions only which are specifically provided by the section.

Sec. 48 enacts that the Commonwealth Court of Conciliation and Arbitration, the High Court or a Justice thereof or a County, District or Local Court may, on the application of any party to an award, make an order in the nature of a mandamus or injunction to compel compliance with the award or to restrain its breach, or to enjoin any organization or person from committing or continuing any contravention of the Act or of the award under pain of fine or imprisonment, and no person to whom such order applies shall, after written notice of the order, be guilty of any contravention of the Act or the award by act or omission. The section ends: "Penalty: one hundred pounds or three months' imprisonment." It is evident that the words "under pain of fine or imprisonment" express the consequence which is to ensue from disobedience to the order. The effect of the statement of the penalty at the foot of sec. 48, together with the provisions of sec. 3 and sec. 5 of the Acts Interpretation Act 1904-1916 is to make any contravention of sec. 48 an offence punishable on summary conviction by a fine not exceeding one hundred pounds, or imprisonment not exceeding three months. It is difficult to suppose that the words "under pain of fine or imprisonment" refer to any but these penal consequences. They are incurred by every person who actually violates the order in the nature of mandamus or injunction, because in doing so he must contravene either the Act or the award. It is true that the language of sec. 48 in its present amended form imposes the penalty in respect of the contravention of the Act or the award, and, literally interpreted, this covers every such contravention whether it is or is not a disobedience of the order. But it would, indeed, be strange if the words "under pain of fine or imprisonment" were meant to refer to fine or imprisonment for contempt of Court inflicted under the general powers of the Court to enforce its orders. For it is by no means clear that such a contempt would be "special" and would expose the party in default to fine as distinct from attachment or committal. See In re Freston[1] and Scott v. Scott[2], and the memorandum in In re Evans[3]. Further, the various tribunals upon which sec. 48 confers power to make orders in the nature of mandamus or injunction differ in their authority to commit or attach for disobedience of their orders. Some of them have no power at all to do so. Again, if this were the meaning of the provision, it would expose the party to two liabilities, both of which, at least to him, would appear to be punishments, and they would be cumulative. It therefore seems certain that the fine and imprisonment to which sec. 48 refers are the fine and imprisonment expressly provided by the penal clause of that section itself.

Upon this interpretation sec. 48 creates new rights and duties and gives a specific remedy or penalty for the violation of such rights or of such duties. "It is an old and well-known rule of construing statutes, that when a special remedy is given for the failure to comply with the directions of a statute, that remedy must be followed, and no other can be supposed to exist" (per Brett M.R., Bailey v. Bailey[4]; see, too, R. v. County Court Judge of Essex[5] and Barraclough v. Brown[6]). It follows that disobedience of an order made under sec. 48 may be visited by the punishment described by that section, but does not expose the delinquent to attachment for contempt.

This conclusion is strengthened by a consideration of the history of sec. 48. When it was passed in 1904, sec. 48 conferred power to make the order upon the Commonwealth Court of Conciliation and Arbitration alone, and the only order which it enabled that Court to make was an order compelling compliance with, or restraining breach of, the award, and the only contravention which the section penalized was a contravention of the award. Such a provision clearly allowed no other remedy than that which it specified. Sec. 6 of Act No. 39 of 1918 omitted the Commonwealth Court of Conciliation and Arbitration from, and added County, District and Local Courts to, the tribunals to which the section gave authority. It omitted the Commonwealth Court of Conciliation and Arbitration because it repealed those provisions of the Act which were considered to give judicial power to that Court. Act No. 31 of 1920 added the High Court to the Courts to which authority is given to make orders in the nature of mandamus and of injunction, and the same statute included contraventions of the Act among the breaches of duty to be enjoined and to be punished. Then by Act No. 22 of 1926 the Commonwealth Court of Conciliation and Arbitration was restored to its place among the tribunals to which the power is confided. None of these amendments exhibits any intention that the penalty which the final words of sec. 48 provide should no longer be exclusive, but should become either cumulative upon, or alternative with, attachment or committal for contempt.

The result is that the application for a writ of attachment is misconceived and must be dismissed. In this view it is unnecessary to deal with any of the other contentions raised on behalf of the respondent.

[1] (1883) 11 Q.B.D. 545, at pp. 552-554, 556-557.

[2] (1913) A.C. 417, at pp. 459-460.

[3] (1893) 1 Ch. 252, at pp. 259-264.

[4] (1884) 13 Q.B.D. 855, at p. 859.

[5] (1887) 18 Q.B.D. 704, at p. 708, per Lopes L.J.

[6] (1897) A.C. 615.

High Court of Australia

Graziers' Association of NSW v Durkin [1930] HCA 22; (1930) 44 CLR 29 (14 August 1930)

HIGH COURT OF AUSTRALIA