Harrison v Goodland [1944] HCA 41; (1944) 69 CLR 509 (22 December 1944)

This is an appeal by way of statutory prohibition under the Justices Act 1902-1940 N.S.W. from a conviction of Edward Scott Harrison by a court exercising Federal jurisdiction—Judiciary Act 1903-1940, s. 39 (2) (b).

Harrison was convicted upon the following charge:—"For that on the 16th day of October 1944 at Newcastle in the said State the Applicant then being a boilermaker employed by the Broken Hill Proprietary Company Limited at its steel works at Newcastle aforesaid and being a member of the Boilermakers' Society of Australia an organisation registered under the provisions of the Commonwealth Conciliation and Arbitration Act 1904-1934 and bound by an order made under the said Act on the said 6th day of October 1944 by his Honour Judge O'Mara a Judge of the Commonwealth Court of Conciliation and Arbitration in the matter inter alia of an industrial matter in which the said Company and the Boilermakers' Society of Australia and the Federated Ironworkers' Association of Australia were concerned and to which said order the said Company was a party was given a direction by the Company to make a template and did refuse to comply with the direction contrary to the said Act."

The Commonwealth Conciliation and Arbitration Act 1904-1934, s. 44, makes it an offence for any person bound by an order or award to commit any breach or non-observance of any term of the order or award. Section 38 (da) provides that the Court of Conciliation and Arbitration shall, as regards every industrial dispute of which it has cognizance, have power to order compliance with any term of an order or award proved to the satisfaction of the Court to have been broken or not observed. Section 38 (o) provides that the Arbitration Court shall have power to give an interpretation of any term of an existing award.

By an order made on 6th October his Honour Judge O'Mara, a judge of the Arbitration Court, interpreted the Metal Trades Award, Serial No. 5508, by declaring that upon its true construction it was a term of the award that the Broken Hill Pty. Co. Ltd. was bound thereby as to classifications and as to rates prescribed by clauses 2, 3, 4, 5 and 7, and that members of the Boilermakers' Society of Australia who were classified and paid in accordance with a particular provision of the award were bound thereby to perform or assist in performing any kind of work usually performed by a boilermaker.

The order declared that it had been proved to the satisfaction of the Court that "boilermakers employed by the said company have not observed a term of the said award in that when directed by the said Company so to do they did fail (i) to make and assist in the making of templates ...".

The order then proceeded, pursuant to s. 38 (da) of the Act, to order that "boilermakers employed by the said company" should comply with the term of the said award which had been proved to the satisfaction of the Court not to have been observed, and that they should, pursuant to the order, and in accordance with such directions as might be given by the company, make or assist in the making of templates. The order also fixed a maximum penalty of £10 in the case of any such boilermaker as aforesaid who, after a specified date, refused, neglected or failed to comply with any such direction as aforesaid: See Arbitration Act, s. 38 (c), which gives power to fix penalties for any breach or non-observance of an order or award, subject to specified limits.

Argument upon the appeal proceeded upon the basis that the order directed members of the Boilermakers' Society to work for the Broken Hill Pty. Co. Ltd., that is to say, upon the basis that the award was interpreted as not merely prescribing terms and conditions of employment for boilermakers and others who were in fact working for the company, but as directing that members of the Boilermakers' Society should work for the company whether they wished to do so or not. I do not so construe the order. The order is limited in terms to "boilermakers employed by the company" and what it does (apart from "interpreting" the award) is to specify the duties of boilermakers so employed as including, inter alia, the making of templates.

It is argued for the appellant, however, that the learned judge wrongly construed the award in holding that the company was bound by the award and in declaring that boilermakers employed by the company were bound, if directed, to make templates. The first question which arises is whether in this proceeding it is open to the appellant to challenge the order upon the ground that it is wrong, as in the case of an ordinary appeal.

There is no doubt that the Arbitration Court has power to interpret its awards (s. 38 (o)), and to order compliance with any term of an order or award proved to have been broken or not observed (s. 38 (da)) and to fix maximum penalties for non-compliance (s. 38 (c)). It therefore cannot be contended that the order of his Honour Judge O'Mara is a nullity. The argument for the appellant is that the order was wrong and that, although the magistrate who heard the charge could not allow the order to be challenged by reason of the provisions of s. 31 of the Arbitration Act (which I quote hereafter), no such restriction applies to the High Court, and the order can therefore be challenged in the High Court. Jacka v. Lewis[1] is relied upon for this proposition.

This proceeding is an appeal from the conviction by the magistrate and is not an appeal from the order of Judge O'Mara. The order, so far as it interpreted the award, was either judicial in character or arbitral in character (Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd.[2] and Pickard v. John Heine & Son Ltd.[3]). If the interpretation is to be regarded as a judicial interpretation, that is, as determining the true meaning of the award upon ordinary principles of construction, Jacka v. Lewis[4] is an authority that there is an appeal from the order to this Court. If, on the other hand, it is what has been called an arbitral interpretation, that is, a declaration of what the Court intended to bring about by the award, as distinct from construing the award according to its terms, there is no authority that such an appeal will lie. But, as I have already said, this proceeding is not an appeal from the order of Judge O'Mara.

The Arbitration Act, s. 31 (1), provides that:—"Except as in this Act provided, no award or order of the Court or a Conciliation Commissioner shall be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition mandamus or injunction, in any other Court other than the High Court on any account whatever."

In Jacka v. Lewis[5] it was held that this provision did not preclude an appeal to the High Court from an order made by the Arbitration Court in the exercise of its judicial power, although the view was expressed that possibly this result had been brought about by inadvertence. Section 31, however, does not confer any right of appeal. It is operative only to prevent challenge, appeal, review, &c. The right of appeal in the present case depends upon the provision of the Judiciary Act to which reference has been made, namely, s. 39 (2) (b). The Court before which the appellant was convicted was "a court other than the High Court" and therefore the magistrate rightly held that the order could not in any way be challenged or called in question before him. Therefore if the order applied to the appellant so as to bind him in relation to the company, the conviction was right, because it was admitted that the appellant was a boilermaker employed by the company; that he had notice of the order; that a direction had been given to him to make a template; and that he had refused to obey the direction.

But, even if the magistrate was precluded from considering the validity of the order of Judge O'Mara, it was still necessary for the prosecutor to show that the order applied to the appellant Harrison. It was made in a proceeding to which Broken Hill Pty. Co. Ltd. and the Boilermakers' Society were parties. The order was made against the union of which Harrison was proved to be a member, and applied to all boilermakers employed by the company, and Harrison was so employed. But the order does not name Harrison. Section 29 of the Act provides that an award of the Court shall bind all members of organizations bound by the award. But this section relates only to awards, and not to orders. The suggestion, therefore, is that there is no provision in the Act which enables the Court to make an order which will bind and impose obligations upon members (not individually named) of a class of persons, even though those persons are members of an organization which is bound by the award in relation to which the order is made, or which is bound by the order itself.

In my opinion this suggestion is satisfactorily met by reading certain specific provisions of the Act in the light of the general principle that the Act deals with employees principally through and as represented by their organizations. The Arbitration Act is concerned with the mutual duties of employers and employees. It deals with employers both individually and through or by reference to associations of employers. In the case of employees the awards of the Court deal only with organizations of employees and not with individual employees. Industrial jurisdiction is mainly exercised by making awards or orders in proceedings in which employees are represented by the unions to which they belong. Section 2 (VI.) of the Act states that one of the chief objects of the Act is to facilitate and encourage the organization of representative bodies of employers and of employees and the submission of industrial disputes to the Court by organizations, and to permit representative bodies of employers and of employees to be declared organizations for the purposes of the Act. Section 29, as already stated, provides that an award of the Court binds all members of organizations bound by the award. Under s. 24 agreements as to industrial disputes, when duly certified, have the same effect as an award, and therefore, by virtue of s. 29, they bind the members of any organization which is a party to such an agreement. Under s. 77 "industrial agreements" made by an organization are binding on the members of the organization.

Section 38 (da) enables the Court to order compliance with the terms of orders and awards. Under this provision the Court could order any person or organization bound by an award to comply with the award. An order that an employer should observe an award is an order for compliance with the award. So also is a similar order in relation to an organization. I can see no reason why an order that all the members of an organization should observe an award cannot properly be described as an order for compliance with the award. So also an order that identifiable members of an organization should observe an award, whether the identification is made by names or by description, is an order for compliance with the award, and is therefore authorized by s. 38 (da).

It is true as a general rule that in ordinary courts (in the absence of a representative order) a person is not bound by an order unless he is himself a party to the proceedings and is specifically and individually referred to in the order (Templeton v. Leviathan Pty. Ltd.[6]). But in the exercise of equitable jurisdiction it has for many years been the practice to grant an injunction, not only against a defendant, but also against his servants or agents (Hodson v. Coppard[7]), that is, against persons described but not named. The inclusion of servants and agents, without naming them, is not meaningless. They are persons against whom the injunction has been granted though not parties to the action, and they are in a different position from that of members of the public. They may be committed for breach of the injunction if they know that it has been granted. Members of the public (subject to the same condition of notice) may be committed, not for breach of the injunction, but for contempt of court in aiding and abetting a breach thereof: See Lord Wellesley v. Earl of Mornington[8]; Seaward v. Paterson[9]; Kerr on Injunctions, 6th ed. (1927), pp. 632, 674.

Further, I refer to s. 25 of the Act, which provides: "... in exercising any duties or powers under or by virtue of this Act, the Court or Conciliation Commissioner shall act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms ...". In the present case an order has been made in proceedings against a registered organization of boilermakers purporting to bind boilermakers employed by the company. The appellant is a member of the organization and is a boilermaker employed by the company. There is no real room for doubt as to the meaning and application of the order. In my opinion the Court would be paying entirely unwarranted deference to legal forms and technicalities if it allowed the fact that Harrison, though clearly described, was not specifically named in the order, to deprive the order of effect, not only in relation to Harrison, but (by parity of reasoning) in relation to all the persons to whom it was plainly intended to apply.

I am therefore of opinion that all the objections taken on behalf of the appellant fail and that the appeal should be dismissed.

The appellant Harrison was convicted before a stipendiary magistrate sitting at the Newcastle Police Court that, being a boilermaker and a member of the Boilermakers' Society of Australia, an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1934 and bound by an order of that Court made in the matter of an industrial dispute with the Broken Hill Pty. Co. Ltd. to which the organization and the Federated Ironworkers' Association were parties, he refused to comply with a direction to make a template contrary to the Act and order.

The appellant has appealed to this Court by means of an order nisi for statutory prohibition pursuant to the Appeal Rules of this Court, Section IV., and the Justices Act 1902-1940 N.S.W..

The order of the Arbitration Court upon which the conviction is based declares that boilermakers employed by the Broken Hill Pty. Co. Ltd. had not observed a term of an award known as the Metal Trades Award in that when directed by the company they failed to make and assist in making templates and ordering pursuant to s. 38 (da) of the said Act that boilermakers of the company should comply with the said terms of the award. It was not suggested that the order of the Arbitration Court was beyond its jurisdiction or a nullity in the sense that it was null and void and of no effect, but it was contended that the construction placed upon the Metal Trades Award by the Arbitration Court was erroneous and contrary to its terms.

The material clauses of the order of the Arbitration Court appear to have been an exercise of the judicial power. And the order has not been challenged by way of appeal to this Court or in any other manner: See Commonwealth Conciliation and Arbitration Act, s. 31; Jacka v. Lewis[10]. The order is not, as already stated, a nullity, but a subsisting order binding upon the parties thereto. It may be that the Arbitration Court placed an erroneous interpretation upon the Metal Trades Award, but that error cannot be corrected in the present proceeding, which is not an appeal from the order of the Arbitration Court but an appeal from a conviction based upon a contravention of a subsisting order of the Arbitration Court.

Next it was suggested that the appellant was not bound by the order, for he was neither a party to the proceedings nor given notice of them. There are some observations in Cameron v. Cole[11] which aid this view, but I think they rather misunderstand the sense in which the word "nullity" is used in the cases there cited.

In the present case the order of the Arbitration Court directs boilermakers in the employ of the Broken Hill Pty. Co. Ltd., of whom the appellant was one, to comply with the order, but the appellant was not named as a party to the proceedings before the Arbitration Court nor was he served with any notice thereof, though the organization of which he was a member was both a party to and appeared in the proceedings. And the Arbitration Act, s. 31, enacts that no award or order of the Court shall be challenged, appealed against, reviewed, quashed, or called in question or be subject to prohibition mandamus or injunction, in any other court on any account whatever other than in the High Court, but that exception of the High Court cannot, as already stated, be applied in these proceedings to an order which has not been appealed and is a subsisting order. Again, the Act provides for organizations of employers and employees for the purposes thereof and the registration of such organizations: See Arbitration Act, ss. 55-72A. The organizations represent their members in arbitral proceedings and their members are bound by the awards of the Court (Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association[12]; Act, s. 29). And the Court may order compliance with any terms of an order and enjoin any organization or person from committing any contravention of the Act (See s. 38 (da) and (e)), waive any error, defect or irregularity whether in substance or in form (s. 38 (q)). And the Court is authorized to enforce its awards and orders (Act, ss. 44-50B).

The scheme of the Act, as it appears to me, is that organizations represent their members not only in arbitral but also in judicial proceedings. But it would, I should think, be quite wrong to enforce any penalty upon a member of any organization or any injunction against him unless he was served with or had due notice of the award or order sought to be enforced.

In my opinion the appellant cannot, upon this appeal, attack the order of which he desires to complain. It is an order made by the Commonwealth Court of Conciliation and Arbitration as under s. 38 of the Commonwealth Conciliation and Arbitration Act. The appellant was defendant to an information laid, as I understand it, under s. 44 of the Act. The charge was that, being a boilermaker employed by Broken Hill Pty. Co. Ltd. at its steel works at Newcastle, and being a member of the Boilermakers' Society of Australia, an organization registered under the Act, and bound by the order in question, he was given a direction by the company to make a template and did refuse to comply with the direction contrary to the Act and the order. Upon this information he was convicted by a Court of Petty Sessions exercising Federal jurisdiction. He appeals from this conviction.

The appeal turns upon the efficacy of the order. For, if it is valid and effective according to its terms and binds the appellant, it is undeniable that the conviction must stand. Accordingly the appellant attacks the order of the Court of Conciliation and Arbitration as bad in law. In the Court of Petty Sessions he could not do this; for s. 31 of the Act says that, except as in the Act provided, no order of the Court of Conciliation and Arbitration shall, amongst other things, be challenged or called in question in any other court other than the High Court on any account whatever. But the appellant says that, by virtue of the exception expressed in the words "other than the High Court," he is entitled to attack the order once he gets into this Court and by whatever form of proceedings he gets here. Accordingly he says that he may attack it upon this appeal from the Court of Petty Sessions, notwithstanding that in the Court below he could not do so. No doubt the exception upon which he relies would allow him to attack the order of the Court of Conciliation and Arbitration if he had taken the appropriate proceedings for the purpose. It has recently been held that, apart from orders of the Court of Conciliation and Arbitration made in the exercise of the judicial power, as distinguished from the exercise of that Court's authority as an industrial arbitrator, an appeal does lie to this Court (Jacka v. Lewis[13]).

Some parts of the order under consideration appear to be judicial and, if it had been appealed against, its correctness might have been examined. Moreover, if there is any legal ground for attacking the order collaterally, it might have been done by summons under s. 21AA, or perhaps on a prerogative writ of prohibition. But no such proceedings were taken.

The exception in favour of the High Court cannot, in my opinion, operate to enable the appellant to support an appeal from a conviction for default in compliance with the order on the ground that the order is bad in law. It cannot do so because it is a ground which the Court appealed from could not entertain and in hearing and determining an appeal our duty is to consider the correctness of the decision below and to do whatever we think the Court appealed from ought to have done. In Davies and Cody v. The King[14] Latham C.J. stated the result of the cases thus:—"The only power of the court as a court of appeal is to consider and determine whether the judgment of the court appealed from was right upon the materials before that court. This court, in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan1(1931) [1931] HCA 34; 46 C.L.R. 73, by Rich J. at p. 87, by Dixon J. at p. 108, and by Evatt J. at pp. 112, 113. laid down and explained the principles to which I have referred."

An appeal from a Court of Petty Sessions exercising Federal jurisdiction to this Court does not differ from other appeals under the Constitution, except that for convenience a form of proceedings under State law is employed: See Wishart v. Fraser[16], where in a passage which I shall not repeat I discussed the matter and collected the cases dealing with it.

On the simple ground that we cannot say that the Court below was wrong in giving effect to s. 31 just because s. 31 does not apply to this Court, I think that we cannot entertain on this proceeding any challenge of the order of the Court of Conciliation and Arbitration.

It occurred to me that perhaps it might be possible for the defendant-appellant, without in any way impugning the validity or efficacy of the order, to contend that he was not a person bound by it. But a closer examination of the order has satisfied me that it is not a course open to him. For, in terms, the order says that any boilermaker employed by the company who refuses, neglects, or fails to comply with a direction to make templates, shall be guilty of a breach of the order and liable to a penalty which it proceeds to fix.

The defendant-appellant was such a boilermaker, and to contend that he is not bound by that part of the order is inconsistent with its terms. To do so is, therefore, to challenge it, or call it in question.

For these reasons I think that we ought not to consider the correctness or validity of the order, or the question whether, having regard to the terms of s. 29, it can lawfully bind the defendant-appellant.

[1] [1944] HCA 6; (1944) 68 C.L.R. 455.

[2] (1924) 34 C.L.R., at pp. 528, 529, 543.

[3] (1924) 35 C.L.R., at pp. 6, 7.

[4] [1944] HCA 6; (1944) 68 C.L.R. 455.

[5] [1944] HCA 6; (1944) 68 C.L.R. 455.

[6] [1921] HCA 55; (1921) 30 C.L.R. 34.

[7] [1860] EngR 1088; (1860) 29 Beav. 4 [54 E.R. 525].

[8] [1847] EngR 972; (1848) 11 Beav. 180, 181 [1847] EngR 972; [50 E.R. 785, 786].

[9] (1897) 1 Ch. 545.

[10] [1944] HCA 6; (1944) 68 C.L.R. 455.

[11] [1944] HCA 5; (1944) 68 C.L.R. 571, at p. 584.

[12] [1925] HCA 7; (1925) 35 C.L.R. 528.

[13] [1944] HCA 6; (1944) 68 C.L.R. 455.

[14] [1937] HCA 27; (1937) 57 C.L.R. 170, at p. 172.

[15] [1931] HCA 34; (1931) 46 C.L.R. 73, by Rich J. at p. 87, by Dixon J. at p. 108, and by Evatt J. at pp. 112, 113.

[16] [1941] HCA 8; (1941) 64 C.L.R. 470, at p. 480.

High Court of Australia

Harrison v Goodland [1944] HCA 41; (1944) 69 CLR 509 (22 December 1944)

HIGH COURT OF AUSTRALIA