R v Commonwealth Court of Conciliation & Arbitration; Ex parte Amalgamated Engineering Union [1949] HCA 51; (1949) 80 CLR 164 (21 November 1949)

HIGH COURT OF AUSTRALIA

THE KING v. COMMONWEALTH COURT OF CONCILIATION AND ARBITRATION; Ex parte AMALGAMATED ENGINEERING UNION [1949] HCA 51; (1949) 80 CLR 164

Mandamus

High Court of Australia
Latham C.J.(1), Dixon(2),McTiernan(3), Williams(4) and Webb(5) JJ.

CATCHWORDS

Mandamus - Commonwealth Court of Conciliation and Arbitration - Determination of basic wage - Factor of child endowment - Controversial issue at Federal elections then ensuing - Adjournment of hearing - Discretion of the Arbitration Court - Review by the High Court - The Constitution (63 & 64 Vict. c. 12), s. 75 (v.) - Commonwealth Conciliation and Arbitration Act 1904-1948 (No. 13 of 1904 - No. 65 of 1948), ss. 4, 32, 36, 38 (1).

HEARING

Sydney, 1949, November 21. 21:11:1949
MANDAMUS.

DECISION

LATHAM C.J. This is an application for a writ of mandamus directed to the Commonwealth Court of Conciliation and Arbitration and the judges of that Court directing that the court should hear according to law the parties to certain disputes in pursuance of the duty of the court to hear and determine the same according to law and should also hear and determine according to law any application which may be made by any of the parties to those disputes for a resumption of the hearing of the disputes. (at p167)

2. The affidavits submitted to the court show that the Arbitration Court has been engaged for several months in hearing an application for the increase of the basic wage. That application involves a consideration of what may be described as a family wage and of child endowment. In the general Federal election which is at present proceeding, the voting in which will take place on 10th December next, reference has been made to the relation of child endowment to the basic wage. That is a matter which would have to be determined by the court in the hearing of the disputes mentioned. The court made an announcement in these terms - "At the basis of the problem of settling the disputes before the court concerning the Basic Wage for adult male and female workers are, as has been made manifest during the proceedings, questions relative to the amount and fair and proper distribution of the National Income and to the capacity of the economy to support such a distribution." Reference is then made to the fact that these matters have been raised as an issue in the political field and it is stated that the court has decided that it is its duty to proceed no further in the present case "while the issue remains the subject of election propaganda." I read those words as meaning that the adjournment which the court directed on this occasion was an adjournment only until after the election, and not an indefinite adjournment, as has been suggested. (at p168)

3. Section 75 (v.) of the Constitution of the Commonwealth authorizes this Court to issue writs of mandamus to officers of the Commonwealth and that section is applicable notwithstanding the provisions of s. 32 of the Arbitration Act in a case where the tribunal in question is declining to exercise the jurisdiction which is given to it. (at p168)

4. It is an obvious statement of fact that very often matters dealt with in the Arbitration Court are subjects of political controversy. If the Arbitration Court were to cease to perform its functions whenever a matter before it became a subject of political controversy the court would often not be in operation. If the adjournment of a case amounts to a refusal to exercise jurisdiction mandamus may go. In the present case it is contended that the court has exercised its discretion upon grounds which are not relevant to the subject matter in respect of which the discretion has been conferred and it is said that the fact that there is a controversy outside the court on a particular matter is no ground whatever for the exercise of the discretion which the court has as to the time when cases may be heard. The general principles relating to the grant of a writ of mandamus were expressed in the case of R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, at pp 242, 243 :- 'A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies." In this case the Arbitration Court is of opinion that it would be undesirable for the hearing of these disputes to proceed at a time when substantial matters involved in the disputes have become issues in a general Federal election. Under s. 38 (1) of the Commonwealth Conciliation and Arbitration Act 1904-1948 the court has power to adjourn its sittings to any time and place. Under s. 36 it is provided (I read only the words referring to the court, leaving out those referring to conciliation commissioners) that the court shall in such manner as it thinks fit carefully and expeditiously hear every industrial dispute. The definition of "industrial disputes" includes in a sense within itself the definition of "industrial matters" and the definition of "industrial matters" in s. 4 of the Act contains these words - "'Industrial matters' . . . includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole." All those are matters with which the Arbitration Court is concerned. (at p169)

5. In my opinion the desirability of granting what I have already said is a temporary adjournment was a matter for the discretion of the court. There is obviously room for difference of opinion as to the wisdom of the exercise of such a discretion in such a case as this. That, however, is not a matter for this Court to determine. It is not for us to determine whether the discretion was wisely exercised, but only whether the Arbitration Court has exercised it within its jurisdiction in adjourning the further hearing of the matters for the period mentioned. In my opinion that is a discretion which has been committed by the Act to that court. If this Court in this case were to grant the application for a writ of mandamus we would really be reviewing or revising that exercise of discretion and not commanding the court to exercise a jurisdiction which it has refused to exercise. (at p170)

6. In my opinion for these reasons the application should be refused. (at p170)

DIXON J. I agree that there is no foundation for the issue of a writ of mandamus. (at p170)

McTIERNAN J. I agree. It is within the discretion of the judges of the Arbitration Court to consider and decide the question whether the discussion in the constituencies of the relation of the basic wage to child endowment would affect the conduct and consideration of the basic-wage case. It is not necessary for this Court to decide whether the view which the Arbitration Court took of the matter was right or wrong. They made an order for the adjournment of the basic-wage case, which, in my opinion, is completely within their discretion. Their consideration of the question or their decision to make that order were not affected by an extraneoud or irrelevant matter. (at p170)

WILLIAMS J. I also agree. To put it shortly, it appears to me that it was clearly within the jurisdiction of the court to adjourn the hearing and that, having regard to the arbitral functions of the court and the nature of the case which they were hearing, the reason for the adjournment could not be said to be so extraneous as to amount to an excess of jurisdiction. (at p170)

WEBB J. I regret that I cannot share the view of the majority of the Court. The ground upon which the adjournment was based does not reveal any duty of the court to adjourn, or warrant the exercise of any discretion to adjourn. I am unable to see how a controversy, even an Australia-wide one, during a Federal election could in any way interfere with the proper discharge of the duty of the Federal Arbitration Court to determine the basic wage, more particularly when we remember that the ground of the adjournment is that the controversy that will take place will be about child endowment. I recognize the strength of the authorities referred to by the Chief Justice and other members of this Court against granting a mandamus unless there is a clear failure to perform a duty; but in this case I regret to say that I think that there is that clear failure. I would grant the application. (at p171)

ORDER

Application refused.