R v Commonwealth Court of Conciliation & Arbitration; Ex parte Grant [1950] HCA 8; (1950) 81 CLR 27 (11 May 1950)

HIGH COURT OF AUSTRALIA

THE KING v. COMMONWEALTH COURT OF CONCILIATION AND ARBITRATION; Ex parte GRANT [1950] HCA 8; (1950) 81 CLR 27

Industrial Arbitration (Cth.)

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

CATCHWORDS

Industrial Arbitration (Cth.) - Commonwealth Court of Conciliation and Arbitration - Jurisdiction - Industrial organization - Disputed election - Irregularities - Application of remedial statute to election commenced prior thereto - "Completion" of election - Inquiry - "Prescribed form" - Application lodged prior to promulgation of regulations - Election declared void and new election ordered - "Necessary safeguards" - Deputy Industrial Registrar appointed returning officer - Prohibition - Commonwealth Conciliation and Arbitration Act 1904-1949 (No. 13 of 1904 - No. 28 of 1949), ss. 32, 40 (m), 96A, 96B, 96G - Conciliation and Arbitration Regulations, reg. 133A (S.R. 1947 No. 142 - 1949 No. 49).

HEARING

Sydney, 1950, April 17-19; May 11. 11:5:1950
PROHIBITION.

DECISION

May 11.
The following written judgments were delivered: -
LATHAM C.J. Return of an order nisi directed to Dunphy J., a judge of the Industrial Registrar of the court, and George McNeill and John Patrick O'Shea, members of the Boilermakers' Society of Australia (an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1949), for the issue of a writ of prohibition in relation to orders made by Dunphy J. The prosecutor, Hugh Grant, was elected as secretary of the New South Wales Branch of the Society at an election which on 31st May 1949 was authorized by a meeting of the branch - the ballot to close on 21st June 1949. The respondent J. P. O'Shea was a defeated candidate at the said election. He applied under the provisions of the Commonwealth Conciliation and Arbitration Act 1904-1949 for an inquiry into the election on the ground that there had been irregularities in or in connection with the election. The inquiry was made and the learned judge made an order on 14th December 1949 declaring the election void and directing a new election to be held. The prosecutor alleges that the order made was beyond the jurisdiction of the court, and seeks a writ of prohibition to restrain any further proceeding thereunder. (at p47)

2. The Commonwealth Conciliation and Arbitration Act 1904-1949 provides in s. 96A that "Where a member of an organization, or a person who, within the preceding period of twelve months, has been a member of an organization, claims that there has been an irregularity in or in connection with an election for an office in the organization . . . he may lodge an application for an inquiry by the court into the matter." The application is to be lodged with the Industrial Registrar (s. 96A (2) (b)) who, if he is satisfied that there are reasonable grounds for an inquiry into the question whether there has been an irregularity which may have affected or may affect the result of the election, shall grant the application and refer the matter to the court - s. 96B (1). Under s. 96G the court has power to inquire into and determine the questions whether any irregularity has occurred and such further questions concerning the conduct and results of the election as the court thinks necessary. Section 96G (3) provides that if the court finds that an irregularity has occurred the court may, in accordance with the section, make an order declaring the election to be void, an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected, and an order directing a new election to be held. (at p47)

3. The election which was declared void was directed by the branch to be held on 21st June 1949. Ballot papers were sent out bearing an intimation that they must be returned by the first post on 21st June. Four thousand ballot papers were printed and, according to the report of the returning officer, McNeill, and three scrutineers, 3,509 were sent or delivered to members. On 21st June, 1,619 papers were collected by the returning officer at the Haymarket Post Office, Sydney. On 22nd June, that is a day after the day fixed for the return of ballot papers, 248 ballot papers were collected. These latter papers were included in the count. On 29th June 251 ballot papers were collected. They were not included in the count. The counting of the ballot papers took place during the period 22nd June to 16th July. On the latter date the result of the ballot was announced. Dunphy J. found that the election was not completed until 16th July, rejecting evidence which was directed to showing that the report of the returning officer was signed on 11th July. There was, however, no declaration of the result of the election until 16th July and it is clear that his Honour was right in holding that the election was not completed until 16th July. (at p48)

4. On 12th July the 1949 Act came into operation: see s. 2. On 3rd August O'Shea lodged with the Industrial Registrar an application in writing under s. 96A for an inquiry. This application specified the election in respect of which the inquiry was sought and alleged certain irregularities. The application was supported by a statutory declaration declaring the facts stated in the application to be true. Section 96A (2) (a) provides that an application under the section shall "(a) be in writing in accordance with the prescribed form; (b) be lodged with the Industrial Registrar before the completion of the election or within such time after the completion of the election as is fixed by or under the regulations." Section 124 of the Commonwealth Conciliation and Arbitration Act 1904-1949 provides that the Governor-General may make regulations prescribing matters which by the Act are required or permitted to be prescribed. Regulations made in pursuance of s. 96A (2) came into operation on 5th August. Thus on 3rd August, when the application was lodged, there were no regulations prescribing a form of application or fixing any time after the completion of the election for the purpose of defining the period within which an application could be made. (at p48)

5. It is contended on behalf of the prosecutor, first, that the Act applies only to elections which commenced after the Act came into operation. The words of s. 96A are quite capable of being applied to an election which is proceeding at the time when the section came into operation. The Act is remedial in its objective. It applies only in cases where the court is satisfied that there have been irregularities which might affect the result of the election: see definition of "irregularity" in s. 74, s. 96B (1) (a) and s. 96G (4). It cannot be said that a person who has been elected at an election affected by such irregularities has a vested right which prima facie should be protected against the operation of a general legislative enactment designed to remedy the consequences of irregularities. The order for a further election in this case, it may be observed, provides that the persons nominated at the voided election shall be the candidates at that further election. In my opinion s. 96A applies to an election which had not been completed at the time when the Act came into operation. It is unnecessary in this case to determine whether or not the Act applies to elections which had been completed when the Act came into operation. It is further contended on behalf of the prosecutor that even if the Act applies to elections which are actually proceeding at the time when the Act came into operation, an applicant under s. 96A cannot rely upon any irregularities which took place before the Act came into operation. The subject matter to which the Act applies is the election. The Act provides a remedy for the purpose of dealing with irregularities affecting that election. An irregularity which took place before the Act may obviously affect the election in the same way as an irregularity which takes place after the Act has come into force. There is no reason in the nature of the subject matter for limiting the application of the section to the case of irregularities happening after the Act has come into operation. The words of s. 96A - where a member of an organization claims "that there has been an irregularity in or in connection with an election" - are apt to apply to any irregularities that have taken place in relation to an election to which s. 96A applies. As already stated, the Act is remedial in its intention and objective and, as the words are capable of the construction mentioned, that construction should be adopted and it should be held that an applicant can rely, in the case of a pending election, upon irregularities which took place before the Act came into operation. (at p49)

6. The next objection of the prosecutor depends upon s. 96A (2) (b) and (c), the provisions of which have already been stated. Regulations under the Act came into operation on 5th August 1949. A new regulation 133A was in the following terms: - "(1) An application under section 96A of the Act shall be substantially in accordance with Form 46, and lodged in duplicate. (2) The time after the completion of an election within which an application under section 96A of the Act in respect of the election may be lodged shall be six months." The application in fact came before the court. The argument for the prosecutor is that the application was initiated two days too soon. The learned judge held that the application which had been made on 3rd August was in fact substantially in accordance with the prescribed form and, further, that that application was lodged within six months after the completion of the election, and that therefore the application was within time. It is contended that this decision was wrong and that, at the time when the application was actually lodged, the only provision of the law which was applicable is to be found in the first part of par. (b) of s. 96A (2) which required that the application should be lodged with the Industrial Registrar before the completion of the election. The application was not so lodged and therefore, it is contended, was out of time and the court had no jurisdiction to deal with it. In Parisienne Basket Shoes Pty. Ltd. v. Whyte [1938] HCA 7; (1938) 59 CLR 369, this Court considered the effect of a section which required that an information in respect of certain offences should be laid within two months after the commission thereof. It was contended that the justices who convicted persons of such an offence had wrongly decided that the information was laid within the specified time and it was argued that therefore the justices had no jurisdiction to deal with the charges. It was held that the justices had jurisdiction to determine whether the information was laid within the statutory period or not and that if they made an erroneous decision in such determination they were nevertheless acting within the limits of their jurisdiction, so that prohibition would not lie. In the case cited the crucial time was the time of issue of the information by an officer of the court. In this case the crucial date is the time of lodgment with an officer of the Arbitration Court. As in the former case the court of petty sessions had jurisdiction to determine whether the information was in due time, so in this case the Arbitration Court had jurisdiction to determine whether the application was in due time. Even if that decision be wrong it does not afford any ground for prohibition. But, further, I am of opinion that the decision of the learned judge upon this point was right. The application was lodged in fact with the Industrial Registrar on 3rd August. It continued to be so lodged on 5th August and thereafter. Also, there is a provision in the Commonwealth Conciliation and Arbitration Act 1904-1949 which in my opinion shows that matters of procedure do not go to the jurisdiction of the court. Section 40 (m) provides, inter alia, that the court may, in relation to any proceedings before it, "correct, amend or waive any error, defect or irregularity whether in substance or in form." This power was not exercised by the court in the present case, because the learned judge was of opinion that the application complied with the regulations, but this provision shows that an error, defect or irregularity, whether in substance or in form, does not affect the jurisdiction of the court, and that the court may exercise its jurisdiction, notwithstanding any such error &c. Finally, prohibition will not lie "where a question of time merely was involved. All the practice has been to the contrary" (Barker v. Palmer (1881) 8 QBD 9; Backhouse v. Moderana (1904) 1 CLR 675). Accordingly in my opinion this ground of the order nisi fails. (at p51)

7. The learned judge declared the election which had taken place to be void and directed that a new election should be held. It was ordered that the new election should be conducted in accordance with union rules and "where such rules are silent in accordance with any practice which the Returning Officers shall mutually agree upon as providing all necessary safeguard." The returning officers specified in the order were J. C. Welbourn, Deputy Industrial Registrar, and the respondent George McNeill, who was the returning officer appointed under the rules of the organization. It is contended on behalf of the prosecutor that in making this provision in the order the court did not itself provide safeguards for the conduct of the new election as it was empowered to do under s. 96G (3) (d), but left it to the returning officers to determine what safeguards should be adopted. In my opinion this objection fails because any returning officer appointed to conduct an election must make decisions and exercise his discretion in relation to various matters arising in the course of the election. If the order had simply appointed a returning officer for the election without any reference to safeguards, that returning officer would nevertheless have had the authority to make decisions as to various details in the conduct of the election. That being so, there can be no objection to a provision that the joint returning officers should together have authority to make such decisions. (at p51)

8. It is contended for the prosecutor that the part of the order requiring the ballot to be conducted in accordance with the union rules is invalid because the union rules are themselves invalid. The rules are said to be invalid because they do not make adequate provision for absent voting - the Act, s. 70 (2), Schedule B and Statutory Rules 1947 No. 142, reg. 106 (a) (i). The evidence before the Court includes a copy of a certificate of the Industrial Registrar of the registration of the organization which, under s. 74 of the Act is, until proof of cancellation, conclusive evidence of the registration of the organization therein mentioned "and that it has complied with the prescribed conditions to entitle it to be registered." Section 80 empowers the court to disallow rules which are contrary to law and to direct the alteration of rules to bring them "into conformity with the requirements of the Act." This provision shows that rules of an organization which are not in conformity with the Act are nevertheless rules of the organization. Thus, even if the rules of the organization are defective, they are in fact the rules of the union and those rules are the rules to which the order of the learned judge refers. Thus the order that the fresh election shall be conducted in accordance with the union rules is not invalid or ineffective as referring to non-existent rules. (at p52)

9. George McNeill, after acting in accordance with the order for a period, refused to act further and the court made another order on 28th March 1950. By this order it was provided, inter alia, that if McNeill failed to perform or complete any duty prescribed by the order made on 14th December 1949 "performance completion attendance or compliance" by the Deputy Industrial Registrar, Sydney, "shall be deemed to be and shall have the effect of performance, completion, attendance or compliance by or of both returning officers." (at p52)

10. The objection to this part of the order is particularly founded upon the provisions of s. 96G (3) (d), which is in the following terms: - "If the court finds that an irregularity has occurred, the court may, in its discretion, but subject to sub-s. (4) of this section make one or more of the following orders: - . . . '(d) an order directing, notwithstanding anything contained in the rules of the organization or branch, the taking of such safeguards as the court thinks necessary against irregularities in or in connection with - (i) any such new election; (ii) any such step so ordered to be taken again; or (iii) any uncompleted steps in the election, and, for the purposes of any such order, an order appointing and authorizing a person to act as a returning officer in conjunction with the returning officer (if any) acting under the rules of the organization or branch in connection with the election, and to exercise such powers as the court directs'" (Sub-section (4) provides that the court shall not declare an election to be void unless the irregularities have affected or may affect the result of the election.). (at p52)

11. The prosecutor contends that par. (d) means that, when the court makes an order providing for safeguards and authorizes a person other than the returning officer acting under the rules of the organization to act as returning officer, the court must appoint him to act in conjunction with the returning officer of the organization. The order of 28th March 1950 purports to authorize the Deputy Industrial Registrar to act by himself and not in conjunction with McNeill, the returning officer of the organization. In my opinion there are two answers to this objection. In the first place, the provision relating to returning officers refers to a person acting as returning officer in conjunction with "the returning officer (if any) acting under the rules of the organization or branch in connection with the election." In this case McNeill has refused to act under the rules of the branch or otherwise in connection with the new election. Accordingly there is no returning officer so acting. Thus the court is not prevented by par. (d) from appointing another person to act alone as returning officer. Further, s. 96G (3) (e) authorizes the court to make an order incidental or supplementary to any order made under the section. In the event which has happened, namely the refusal of McNeill to act under the first order, the further order that the Deputy Industrial Registrar should act alone is in my opinion supplementary to the order made under the section. If McNeill had continued to act under the order the order made in March 1950 would have been merely a variation of the original order, but his refusal to act created a new situation which required a further order if the order of December 1949 was to have any operation and effect. In these circumstances in my opinion the order of March 1950 was supplementary to the order of December 1949 and therefore was authorized by s. 96G (3) (e). (at p53)

12. For these reasons I am of opinion that the order nisi should be discharged and that no writ of prohibition should issue. It is, however, desirable to deal with a particular objection taken on behalf of the Deputy Industrial Registrar who has been made one of the respondents to the order nisi. I agree that if the order nisi had been made absolute it should not have been made absolute against the officer of the court in relation to any action by him in pursuance of an order of the court (Ex parte Fontaine; Re Althouse (1927) 27 SR (NSW) 396; 44 WN 144 (at p53)

MCTIERNAN J. In my opinion the order nisi should be discharged. This is an application for a constitutional writ of prohibition directed to the Commonwealth Court of Conciliation and Arbitration. The writ is sought in respect of orders made by the court under the Commonwealth Conciliation and Arbitration Act 1904-1949. (at p53)

2. The legislature declared in the long title of this Act that it was passed to prevent irregularities in connection with elections for offices in organizations registered pursuant to the Commonwealth Conciliation and Arbitration Act 1904-1948, to vest in the Commonwealth Court of Conciliation and Arbitration additional powers for the prevention of such irregularities and to amend the Act in order to effectuate these purposes. The grounds upon which the writ of prohibition is sought do not raise any question whether the legislative power of the Commonwealth has been exceeded: they raise only the question whether there is statutory authority for the orders made by the court. (at p54)

3. The orders were made upon an application lodged by the respondent, J. P. O'Shea, under s. 96A (1). The first question is whether s. 96A (1) authorizes the making of an application for an inquiry by the court into an election irregularity which occurred before the Act came into operation. This sub-section gives this remedy to a member or ex-member who claims that there has been an irregularity of that kind. (at p54)

4. The irregularity is necessarily anterior to the fact upon which the remedy arises. The fact is that a member or ex-member claims that there has been an irregularity. The remedy is available from the time the Act comes into operation. It necessarily follows that an irregularity before the commencement of the Act is within the scope of the remedy. In order to exclude such an irregularity it would be necessary to supply words limiting the operation of the Act to future irregularities. The result would be to postpone the remedy given by s. 96A (1) until an irregularity occurred. But the manifest intention of the provision is that from the time the Act comes into operation a member or ex-member who claims that there has been an irregularity may lodge an application for an inquiry by the court into the matter. (at p54)

5. Further, the Act authorizes the court to intervene before the completion of an election. This authority is given by s. 96A (2) (b), and s. 96G (3) (b). These provisions apply in terms to any election which is not completed when the Act comes into operation. They do not draw any line between incomplete elections commenced before the Act comes into operation and incomplete elections commenced afterwards. The express terms of the Act do not allow of any presumption that the legislature did not intend that the Act should apply to election irregularities which occurred before it came into operation or to elections which were then not complete. It would, I think, need express words to prevent the Court inquiring into an irregularity occurring before the Act came into force when exercising its jurisdiction in respect of an election which is within its jurisdiction. An election which is not completed before the Act came into operation is at any rate such an election. The election in respect of which the court made the orders which are now in question was not completed before the Act came into operation. Any irregularity whether before or after the Act was a permissible matter of inquiry by the court. The meaning of the word "election" is not confined to the acts whereby the members of the organization exercise their right to choose the candidates whom they wish to hold office. An election is not completed before a binding and definitive declaration is made in accordance with the rules of the organization of the names of the persons chosen by the members. (at p55)

6. In the present case the application for an inquiry was not made before the completion of the challenged election, but it was made before the regulations made under s. 96A (1) (b) were promulgated. The point is made that it is a condition precedent to the right to make an application under s. 96A (1) that regulations are made under s. 96A (2). This is not a tenable view. The Act does not manifest any intention to postpone the operation of s. 96A (1) until regulations are made. Regulations were promulgated after the application was lodged and before it came on for hearing. Section 96A (2) (b) provides that an application shall be lodged within such time after the completion of an election as is fixed by or under the regulations. Reading the regulations literally, this condition as to the time of lodging the application was fulfilled. The point that the lodging of the application was premature and beyond the powers of the court depends upon the rule against retrospective interpretation. This rule does not apply to the construction of these regulations because they do not interfere with any vested right; they are procedural only: they prescribe the procedure for the enforcement of the remedy given by s. 96A (1). (at p55)

7. There are numerous other questions raised upon the terms of the orders made by the court. In the course of argument Mr. Maguire and Mr. Windeyer carefully checked the orders with the powers expressly given by the Act to the court. Having made this comparison again for myself, I am satisfied that the orders fall within the powers conferred upon the court by the terms of the Act. However, in relation to the attack which was made upon the orders, I am not satisfied that there was any substantial departure from the forms or principles within which the Act confines the court in proceedings instituted by such an application as that upon which the orders were made. I think that such an attack is of the kind which s. 32 is competent to meet (R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR, at p 616; R. v. Central Reference Board; Ex parte Thiess (Repairs) Pty. Ltd. (1948) 77 CLR, at p 140). (at p56)

WILLIAMS J. I agree with the reasons of the Chief Justice. In my opinion the rule nisi should be discharged. (at p56)

WEBB J. I agree that the order nisi should be discharged for the reasons given by the Chief Justice. A ground strongly relied upon by counsel for the prosecutor was the provision in s. 96G (3) (c) for the submission of nominations in the event of a fresh election being ordered. He submitted that this provision indicated that the amending legislation was intended to be prospective in the sense that it would not apply to any election commenced before it came into operation; that a candidate nominated in the election declared void would have an accrued right, enforcible in the Federal Arbitration Court, to have the election restricted to those nominated; and that it should be assumed that Parliament did not intend to interfere with accrued rights. However, as the Chief Justice points out, the legislation is remedial, and further an irregularity could consist firstly of the nomination of a person ineligible for election, and again in the declaration of his election. In such circumstances there is no reason why the amending Act, as a remedial measure, should not be held to apply at least to elections not completed, although commenced, before the legislation comes into operation. It may be unnecessary to order that fresh nominations be submitted where none of those received at the election declared void is of an unqualified person; but no question of jurisdiction to do so arises. (at p56)

FULLAGAR J. This is the return of an order nisi for prohibition. The facts of the case have already been fully stated. (at p56)

2. The first two grounds of the order nisi are as follows: - " (1) That the Commonwealth Conciliation and Arbitration Act 1949 (No. 28 of 1949) had no application to the election in question inasmuch as upon its true construction it applies only to elections commenced after it received the Royal Assent or, alternatively, only to elections in which irregularities had occurred after it received the Royal Assent. (2) That if the said Act on its true construction applied in respect of elections not completed before it received the Royal Assent, the election in question had been completed before it received the Royal Assent." (at p56)

3. The second ground was not pressed before us. With regard to the first ground, I agree with the judgment of the Chief Justice, and I have nothing to add. (at p56)

4. The third ground of the order nisi is as follows: - "(3) That the application under Section 96A of the Commonwealth Conciliation and Arbitration Act 1904-1949 was not lodged with the Industrial Registrar before the completion of the election and at the time of its lodgment no time had been fixed by or under regulations within which such an application might be lodged." (at p57)

5. Section 96A (1) of the Act of 1949 provides that a member of an organization who claims that there has been an "irregularity" may lodge an application for an inquiry by the court into an election for any office in the organization. Sub-section (2) of the section provides that "an application under this section shall - (a) be in writing in accordance with the prescribed form; (b) be lodged with the Industrial Registrar before the completion of the election or within such time after the completion of the election as is fixed by or under the regulations." By s. 96B the Industrial Registrar, if he is satisfied as to certain matters, is required to refer the matter to the court. The court then inquires into the irregularity or irregularities alleged, and is empowered by ss. 96E and 96G to make certain orders. The jurisdiction of the court appears to depend on a "reference" of a "matter" by the Industrial Registrar. Ground 3 of the order nisi alleges that a condition precedent to the power of the Registrar to refer the matter was not fulfilled. It is said that, the "reference" being invalid and void, the court had no jurisdiction in the "matter." (at p57)

6. At the time when the application in the present case was lodged with the Industrial Registrar no regulations had been made. It was argued, therefore, in the first place (although this point was not really covered by ground 3) that sub-s. (2) (a) of s. 96A required the application not only to be in writing but to be in the prescribed form, and, since no form had been prescribed, no such application was made or could be made as would support a reference by the registrar to the court. (at p57)

7. It has been said that "enactments regulating the procedure in courts seem usually to be imperative and not merely directory" (Maxwell on Interpretation of Statutes, 9th ed. (1948), p. 377), and it may be assumed (though I do not decide) that, when once a form had been prescribed, it would be a condition precedent to the registrar's power to refer that there should be an application in writing, and that it should be, at least substantially, in accordance with the prescribed form. But, at the time of the application in the present case, no form had been prescribed, and yet it seems clear that the legislature intended by sub-s. (1) of s. 96A to give an immediate right to make an application. If the case were one of an application to a court exercising judicial power, it would appear to be covered by the rule that, where a jurisdiction is given to a court and no procedure is prescribed, the court will accept or adopt such procedure as seems to it fit and proper: it can and should make or mould its own procedure. It was argued, however, that this principle applied only to courts which had power to make rules governing their own procedure, and had no application to a case where the power given was not judicial and the procedure was to be prescribed by an outside authority - as here, where the "prescribing" authority is the Governor-General (s. 124). Reliance was placed upon Browne v. Commissioner for Railways (1935) 36 SR (NSW) 21; 52 WN 102. In that case the statute provided that the head of a branch of the railway service might "in the prescribed manner dismiss or suspend" an officer in that branch of the service. It was held that, no "manner" having been prescribed, there was no power to dismiss or suspend. The relevant principles of law and the reasons for the decision are very clearly stated by Jordan C.J. (1935) 36 SR (NSW), at pp 28, 29; 52 WN, at p 103. That case does not, in my opinion, govern the present. It must be in every case a matter of construction of the particular relevant statute. Here the power in question is not judicial and it is not given to the court: it is given to the registrar, and sub-s. (6) of s. 96B provides that no act or decision of the registrar under that section shall be subject to appeal to the court. But the registrar is an officer of the court, and the power is given to him in his capacity of officer of the court: he may be said to represent the court for the purposes of a preliminary investigation. The court, although it is not, in inquiring into an election, exercising judicial power, is a court which possesses certain judicial power, and it is a court which is expressly given power to "correct amend or waive any error defect or irregularity whether in substance or in form" (s. 40 (m)). Nor, in my opinion, is s. 39, although it does not in terms apply to a proceeding under s. 96A, irrelevant. I think that the power is given to such a person and found in such a context that the legislature must be taken to have intended that, unless and until a form is prescribed, the application, though it must be in writing, may be in any form which the registrar considers appropriate. He is, in my opinion, in the same position as a court would be if the power had been given to a court. "If jurisdiction is conferred upon a court, it may and should exercise that jurisdiction: and, if no procedural machinery has been provided, it is for the court to provide such machinery as best it can" (per Jordan C.J. in Browne's Case (1935) 36 SR (NSW), at p 29; 52 WN, at p 103). (at p59)

8. The next argument of the applicant (which is the point really raised by ground 3) was based on sub-s. (2) (b) of s. 96A. It was said that, at the time when the application to the registrar was made, there was no regulation prescribing a time after the completion of the election within which the application might be made. The first part of sub-s. (2) (b) was, therefore, the governing provision, and the application was not in fact made before the completion of the election. (at p59)

9. I am very far from being satisfied that the line of cases exemplified by Parisienne Basket Shoes Pty. Ltd. v. Whyte [1938] HCA 7; (1938) 59 CLR 369 has any application to sub-s. (2) (b). Indeed it is, I think, more or less clearly implicit in what I have already said that I am disposed to regard sub-s. (2) of s. 96A as laying down conditions precedent to the registrar's jurisdiction, so that it is not within his power to decide finally whether they have been fulfilled or not. On this view, of course, this Court could grant mandamus if it found the conditions fulfilled, and prohibition if it found any of them not fulfilled. It is a matter of construction, and the whole framework of ss. 96A and 96B, the nature of the conditions themselves and the inherent probabilities, all incline me strongly towards this view. Nor do I think that s. 32 of the Act, read in the light of what was said by Dixon J. in R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR, at pp 616, 617 , can properly be applied here as a ground for refusing prohibition. I can see no room in this case for its application. If sub-s. (2) (b) enacts a condition precedent to the jurisdiction of the registrar, and it has not been complied with, I have difficulty in seeing how prohibition can lawfully be refused. The power to grant prohibition is given by the Constitution and cannot be taken away by Act of Parliament (R. v. Hickman; Ex parte Fox and Clinton, per Latham C.J. (1945) 70 CLR, at p 606 ). (at p59)

10. I am of opinion, however, that ground 3 of the order nisi fails, because it proceeds upon a wrong construction of s. 96A (2) (b). The applicant construes sub-s. (2) (b) as meaning that the application must be lodged before the completion of the election unless regulations are in existence which permit it to be lodged after the completion of the election and then within the time prescribed by those regulations. I do not think that this is the meaning of sub-s. (2) (b). I do not think that the two limbs of the paragraph present strict alternatives. I think that the first limb is intended to be rather a qualification of the second, being inserted because, in its absence, the prescription of a period after completion within which the application is to be lodged might be thought to preclude the lodging of an application before completion. The meaning is, therefore, in my opinion, that the application shall be lodged within a period after completion prescribed by or under regulations but may in any case be lodged before completion. On this view, the application may be lodged at any time after completion of the election unless and until a time limit is prescribed. There was, therefore, in this case, no failure to comply with sub-s. (2) (b). (at p60)

11. In fact a regulation fixing the time after completion within which an application must be lodged came into force after the lodging of the application in this case, and in fact the application had been lodged within that period. It is unnecessary, in the view which I take, to consider whether this regulation applied retrospectively so as to produce the result that the application, though out of time when lodged, became lodged within time. I will only say that I think that this question if it arose, would be a very difficult question, and that I am not at all sure that this particular provision for a time limit ought to be classed as a merely "procedural" provision. (at p60)

12. Ground 4 of the order nisi is in the following terms: - "(4) That there was no power under the said Act to order that where the rules of the organization were silent the new election should be conducted in accordance with any practice which the Returning Officers should agree upon as providing all necessary safeguards." I have felt much difficulty over this ground. It differs radically in character from grounds 1, 2 and 3. Those grounds rest on the view (with which I am disposed to agree) that the jurisdiction of the court does not arise except upon a reference by the registrar, and that the "jurisdiction" of the registrar to "refer" is subject to conditions precedent which are set out in s. 96A (2). No jurisdiction can be derived by the court from an invalid reference, and a reference is unauthorized and invalid unless s. 96A (2) is complied with. Ground 4 assumes that jurisdiction has been acquired by the court over the subject matter, but asserts that an actual order made in purported exercise of the jurisdiction is not authorized by the Act and is therefore in excess of jurisdiction. The question depends upon s. 96G (3) (c) and (d) of the Act. (at p60)

13. Section 96G (3) provides that, if the court finds that an irregularity has occurred in connection with the election, it may make "(c) an order directing a new election to be held, or any step in or in connection with the election (including the submission of nominations) to be taken again, in accordance (subject to any order under the next succeeding paragraph) with the rules of the organization or branch"; and/or "(d) an order directing, notwithstanding anything contained in the rules of the organization or branch, the taking of such safeguards as the court thinks necessary against irregularities in or in connection with - (i) any such new election; (ii) any such step so ordered to be taken again; or (iii) any uncompleted steps in the election, and, for the purposes of any such order, an order appointing and authorizing a person to act as a returning officer in conjunction with the returning officer (if any) acting under the rules of the organization or branch in connection with the election, and to exercise such powers as the court directs." The argument under ground 4 is that the court has power to direct the taking of such safeguards as it, the court, thinks necessary, but that the order actually made does not direct safeguards at all, but, in effect, merely delegates to the returning officers the power of deciding what safeguards are necessary or desirable. (at p61)

14. Considering the question merely as a matter of the interpretation of s. 96A (3) (d), I am of opinion that there is no answer to the argument presented. I do not think that the order made is authorized by the terms of that paragraph. I think that what that paragraph means and intends is that detailed directions as to the safeguards to be taken shall be given by the court and not left to the discretion of the returning officers. It does not, however, follow that prohibition should go on this ground. By the time that s. 96G becomes material the matter has reached the court. It has, ex hypothesi, been duly "referred" by the registrar, and the court is seized of the matter: it has jurisdiction over the subject matter. And it is, in my opinion, within the scope of that jurisdiction to decide finally such questions as the question whether s. 96G authorizes a particular form of order. A wrong decision might be the subject of an appeal, if an appeal lay, but it cannot properly be made the subject of a writ of prohibition (cf. Parisienne Basket Shoes Pty. Ltd. v. Whyte [1938] HCA 7; (1938) 59 CLR 369 ). The view that the jurisdiction given includes, as a matter of construction of the Act, the power to decide such questions is, I think, supported - although the jurisdiction given to this Court by s. 75 (v.) of the Constitution cannot be taken away from it - by the presence in the Act of s. 32 (cf. R. v. Hickman; Ex parte Fox and Clinton, per Dixon J. (1945) 70 CLR, at pp 614-617 ). Although I think that ground 4 asserts a proposition which is sound in itself, I do not think that it entitles the applicant to a writ of prohibition. (at p62)

15. Ground 5 of the order nisi is concerned with later order made by Dunphy J. on 28th March 1950. It is in the following terms: - "(5) That the provision in the said order that in the event of the said George McNeill failing to perform or complete any duty therein prescribed on or by the time appointed of failing to attend at any places therein prescribed or otherwise failing to comply with the terms of the said order or the order made on the 14th day of December 1949 performance, completion, attendance or compliance by the Deputy Industrial Registrar, Sydney, shall be deemed to be and shall have the effect of performance, completion, attendance or compliance by or of both Returning Officers was not authorized by the Commonwealth Conciliation and Arbitration Act 1949 (No. 28 of 1949) or otherwise by law and is invalid and void." (at p62)

16. I regard the question raised by this ground as a question of great practical importance, but I do not regard it as presenting any real difficulty. Even if the point raised were sound in itself, again I do not think that it would afford a basis for a writ of prohibition. But I think it reasonably clear that such an order as was made is "incidental" or "supplementary," within the meaning of s. 96G (3) (e), to the order already made. Having regard to the nature of the jurisdiction given, I think that a very liberal construction indeed ought to be accorded to s. 96G (3) (e). But, apart altogether from this, it seems to me that a power to make some such order as was in fact made is practically necessary if the general powers given to the court are not to be in danger of being frustrated by wilful acts or omissions of interested parties. In my opinion, ground 5 also fails. (at p62)

17. I would add one brief observation - at the risk of being thought to exceed my function. The jurisdiction given by the Act of 1949 is a novel and difficult jurisdiction. Its difficulty is greatly increased by the fact that the rules of many registered organizations with regard to elections are extremely defective - in some cases almost incredibly defective. Section 96G (3) (d) provides a means of overcoming the difficulty thus occasioned, and, in my opinion, par. (d) should, like par. (e), receive a very liberal construction. Doubtless before long something in the nature of a standard order, capable of variation to meet each individual case, will be worked out. If my view that an order leaving "safeguards" to be determined ad hoc by the returning officers is not authorized by the Act is accepted, it means that the order must often condescend to very considerable detail. But I should imagine that this is likely to render it not less practically effective but more practically effective. (at p63)

18. In my opinion, the order nisi should be discharged. (at p63)

ORDER

Order nisi discharged. Prosecutor to pay the costs of respondents. Costs of Dunphy J. to be as of a submitting respondent.