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High Court of Australia |
THE QUEEN v. KELLY AND ORS.; Ex parte THE VICTORIAN CHAMBER OF MANUFACTURES
[1953] HCA 30; (1953) 88 CLR 285
Industrial Law (Cth.)
High Court of Australia
Williams A.C.J.(1), Webb(2), Fullagar(3), Kitto(4) and Taylor(5) JJ.
CATCHWORDS
Industrial Law (Cth.) - Commonwealth Court of Conciliation and Arbitration - Hearing of industrial dispute - Court constituted by six judges - Voluntary withdrawal of one judge - Jurisdiction of remaining judges to continue hearing - Mandamus - To compel Court to continue hearing - "Unable to continue to sit" - Conciliation and Arbitration Act 1904-1952 (No. 13 of 1904 - No. 34 of 1952), ss. 24 (1) (4) (5), 39.
HEARING
Melbourne, 1953, May 26-28; June 4. 4:6:1953DECISION
June 4.2. The facts can be shortly stated. From 16th September, 1952, to 30th April, 1953, the six judges had been hearing certain proceedings commenced by the prosecutors and other organizations of employers by the above summons to vary an award made on 16th January, 1952, known as the "Metal Trades Award". These organizations and the organizations of employees who are respondents in the proceedings before us were all bound by this award. The orders asked for in the summons are orders varying this award in important respects, especially with respect to the calculation of the basic wage for male and female employees and increasing the standard hours of work from forty to fourty-four hours. The summons first came on for hearing before the Court on 5th August, 1952, when Wright J. was a member of the Bench. Certain interlocutory and other proceedings took place on that occasion and on other dates prior to 16th September, 1952, when he was still present as a member of the court. But the actual hearing of the dispute and the taking of evidence did not commence until 16th September, 1952. The hearing continued on fifty-nine days between that date and 30th April, 1953. The court throughout consisted of the Chief Judge, Sir Raymond Kelly, and Justices Foster, Kirby, Dunphy, McIntyre and Sir Edward Morgan. (at p296)
3. The dispute came on for further hearing on 12th May, 1953, in the presence of these judges, except Foster J. On that day the Chief Judge announced that he had been informed by Foster J. that he had decided that he was unable to continue to sit with them in the case. "His Honour has indicated that his reason is that he cannot satisfactorily do the work which he has undertaken in connection with the maritime industries as a single judge exercising the jurisdiction of the Court pursuant to the Navigation Act 1912- 1952, and as well continue to sit in this case". The Chief Judge then said: "Is there any alternative, in the circumstances of his Honour's withdrawal, to the Bench of the remaining five members now sitting proceeding with the hearing of the case?" The case was then adjourned until the following day when argument took place before the five judges as to the continuance of the proceedings. (at p296)
4. On 14th May, 1953, the case came on for further hearing before the five judges when the Chief Judge made the following announcement: "We regard the provisions of s. 24, sub-ss. (4) and (5) of the Conciliation and Arbitration Act 1904-1952, as providing for the only circumstances in which the remaining judges of a court constituted to deal with an industrial dispute, may, in the absence of one of the judges so constituting the court, complete the hearing. On the information before us as to the reason given by Mr. Justice Foster for his decision not to continue to sit, we cannot form the view that he is unable to do so within the meaning of s. 24 (4). Accordingly we are of opinion that the present five occupants of the Bench have no jurisdiction to complete the present hearing of these disputes. We are prepared to hear the submissions of those represented before us as to what should now be done, but, as at present advised, we propose assembling in Melbourne on Tuesday, 26th May at 10.30 a.m. after the Court sittings in Sydney, to hear the representatives of parties and interveners as to future steps to be taken in respect of the present disputes. We have in mind, if the present situation continues, that the judges now on the Bench should hear the disputes, taking advantage as far as is proper of the material placed before the Court, of which we were all members, in the earlier hearing". (at p297)
5. On 18th May, 1953, Foster J. made a statement relating to this announcement and to the present proceedings in this Court which were then contemplated. It is unnecessary to set out this statement in full. It is sufficient to say that his Honour said that he had decided to refuse to resume his seat voluntarily because, in his opinion, if he was not entitled to withdraw, neither was Wright J., and the interpretation of s. 24 by the Court on his withdrawal seemed to him to have jeopardized the validity of any subsequent proceedings in the case. "Until the present decision in my case it had been assumed that a judge might withdraw hence there was no challenge when Wright J. left. Unless our cases can be distinguished and if I am right about Wright J. then a decision as to the proper interpretation of s. 24 ought to be made by a court of final authority for if the present decision is upheld then it may need special legislation to deal with it as was the case when Kelly C.J. withdrew from the 1950 Basic Wage Case. Hence if I resume my seat and no decision is given by the High Court then doubt as to the validity of the ultimate decision in the Wages/Hours Case will arise. If I do not resume my seat it must provoke this necessary clarification of the law. It seems to me that in the interests of everybody it is my duty in these circumstances not to resume. On this conclusion I will not do so". (at p297)
6. Hence the present proceedings in which we are asked by all parties to express our opinion upon the true meaning of s. 24 of the Conciliation and Arbitration Act 1904-1952. This section was introduced into the principal Act by s. 8 of the Conciliation and Arbitration Act 1952. It was not contended before us that the hearing of the dispute was invalidated by the retirement of Wright J. All parties contended to the opposite and in my opinion no such contention could succeed. The actual hearing of the dispute commenced on 16th September, 1952, after his Honour had retired, and from that date until Foster J. retired, the same judges were engaged upon the hearing. The fact that Wright J. took part in certain preliminary proceedings could not on any view invalidate this hearing. (at p297)
7. Mr. Eggleston for the respondent unions submitted that there should be an order absolute for a mandamus directing that the hearing which was in progress when Foster J. retired should be continued by the six judges, either by directing him to rejoin the court, or directing the six judges to continue that hearing. He submitted that there is a statutory duty imposed by the Conciliation and Arbitration Act upon each of the judges who commence the hearing of a dispute to continue to sit until the dispute is determined by an order or award of the court, unless within the meaning of s. 24 (4) a judge becomes unable to continue to sit or ceases to be a judge. He submitted that, apart from statute, a court is deprived of jurisdiction to continue the hearing of a case if one or more of the judges who commence the hearing do not remain on the court throughout the adjudication, although there are still sufficient judges left properly to constitute the court; and that if this submission was wrong in its application to courts generally, at any rate in the case of the Court of Conciliation and Arbitration, the provisions of s. 24 (4) are intended to be a complete and exclusive code of the circumstances in which that court can complete the hearing of a dispute in the absence of one or more of the judges who were on the Bench when the hearing commenced. Accordingly if a judge withdraws for any other reason the remaining judges cannot complete the hearing and the court as a whole has in law declined to exercise the jurisdiction which it is its duty to exercise under the Act. (at p298)
8. The first submission is, in my opinion, untenable. I have no doubt that, apart from statute, a court consisting of more than one judge can complete a hearing however many judges leave the court during its progress, voluntarily or involuntarily, so long as there still remains the minimum number of judges required to give the court jurisdiction to adjudicate. If authority is needed for this opinion it is supplied by such cases as R. v. Thomas; Ex parte O'Hare (1914) 1 KB 32 ; Ex parte Fitzgerald; Re New South Wales Medical Board (1945) 46 SR (NSW) 111; 63 WN 16 ; Permanent Trustee Co. of N.S.W. Ltd. v. Palmer [1929] HCA 10; (1929) 42 CLR 277 . In my experience it has been the practice of this court on many occasions to continue a hearing after a judge has withdrawn still leaving three or more judges on the Bench, and the reports refer to similar instances in other courts. (at p298)
9. The second submission has more weight and was accepted by the five judges in the announcement made by the Chief Judge on 14th May. I confess that I have found it difficult to resolve this submission. But in the end I have reached the opinion that it should also be rejected. The leading provision in s. 24 is sub-s. (1), which provides that, subject to the Act, the jurisdiction of the court shall be exercised by not less than three judges. Sub-section (2) provides that in certain instances the jurisdiction of the court may be exercised by a single judge. Sub-section (3) is not relevant in the present proceedings. Sub-sections (4) and (5) are in the following terms: "(4) Where the hearing of an industrial dispute or of an appeal under section thirty-one A of this Act has been commenced before the Court but, before an order or award has been made determining the dispute or appeal, one of the Judges sitting as a member of the Court hearing the dispute or appeal has become unable to continue to sit or has ceased to be a Judge, the Court constituted by the remaining Judges has jurisdiction to complete the hearing and make an order or award determining the dispute or appeal in whole or in part. (5) An order or award shall not be made under the last preceding sub-section unless at least two Judges concur in the making of the order or award". (at p299)
10. The purpose of sub-s. (4), to be ascertained from its terms, appears to me to be to confer on the court jurisdiction to complete a hearing where the court would otherwise have no jurisdiction to do so. The sub-section does not disclose any intention to deprive the court of any jurisdiction to complete a hearing which it would otherwise have. It applies to two cases - (1) where one of the judges is unable to continue to sit; and (2) where one of the judges has ceased to be a judge. (at p299)
11. It is not easy to ascertain the meaning of "unable" in this expression. At least it includes occasions where a judge has become unable to sit for reasons beyond his control, the commonest of which would be illness. It may include cases where a judge voluntarily decides that he is unable to continue to sit because in his bona fide opinion it is beyond his capacity to continue to sit on a particular case and do other work as well. It is unnecessary to express a final opinion on this point. The five judges were unable to form the view that Foster J. was unable to continue to sit with them and also do his work under the Navigation Act and we are not in a position to form a different view. And Foster J. in his statement of 18th May, 1953, did not say that he could not return to the court but that he considered that he had a right voluntarily to withdraw and that he refused to return until this court decided the proper interpretation of s. 24 because otherwise the whole proceedings might be invalidated by the voluntary withdrawal of Wright J. In my opinion sub-s. (4) is not dealing with the case where a judge voluntarily withdraws, but three or more judges still remain on the Bench so that the court still retains jurisdiction to function under sub-s. (1). Sub-section (4) should not be interpreted so as to imply a proviso to sub-s. (1) to the effect that where the court commences a hearing with more than three judges the court shall only have jurisdiction to complete the hearing if all the judges continue to sit unless one or more of the judges becomes unable to continue to sit or has ceased to be a judge. (at p300)
12. It might be possible to imply this limitation if Mr. Eggleston was right in submitting that an individual duty is imposed on each member of the court which commences to hear a dispute, except so far as he is relieved of this duty by the Act, to remain on the court until the hearing is completed and the dispute is determined by an order or award. The scheme of the Conciliation and Arbitration Act is that disputes shall be settled if possible by an agreement arrived at by conciliation. But if no agreement is reached disputes shall be settled by an award or order made by the court or a conciliation commissioner as the case may be. Section 38 of the Act provides that, if no agreement between the parties as to the whole of the dispute is arrived at the court or conciliation commissioner shall, by an order or award, determine the dispute, or (if an agreement has been arrived at as to a part of the dispute) so much of the dispute as is not settled by the agreement. But no such duty is imposed on the judges as individuals but on the court as a whole and the court has jurisdiction to perform this duty provided it consists of at least three judges. But for sub-s. (5) of s. 24 I would be inclined to think the operation of sub-s. (4) should be confined to a vacancy on a court of three judges. It refers to one of the judges sitting as a member of the court hearing the dispute or appeal becoming unable to continue to sit or ceasing to be a judge. It is possible to read this provision as operating on more than one occasion in the case of a court originally comprised of four or more judges where in the course of the hearing more than one judge becomes unable to continue to sit or ceases to be a judge. But the sub-section in terms refers to one of the judges and appears to contemplate only one vacancy, and therefore to a vacancy occurring on a court of three judges. But sub-s. (5) says that an order or award shall not be made under the last preceding sub-section unless at least two judges concur in the making of the order or award. These words appear to contemplate that sub-s. (4) could apply to cases where a vacancy occurs on a court of more than three judges, although I doubt whether the words "at least" are intended to do more than emphasize the necessity, where the court consists of two judges, for these two judges to concur before they can make an order or award. Be that as it may, sub-s. (4) has nothing to say about voluntary retirements where at least three judges still remain on the court. It would seem to be intended as an enlargement of s. 4 of the Conciliation and Arbitration Act 1950 which was limited to the case where one of a court of three judges became unable to sit on account of illness. This section, though apparently passed to meet a special emergency, would appear to have been based on the view that such a provision was only necessary to give the court jurisdiction despite a vacancy where the court consisted of three judges. (at p301)
13. Mr. Eggleston relied on the maxim expressum facit cessare tacitum and to use the words of the present Chief Justice in R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529 , on "the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course" (1949) 78 CLR, at p 550 . But this maxim does not appear to me to have any application to the present problem because sub-s. (4) is not the sole enactment conferring jurisdiction on the court. The principal affirmative enactment conferring jurisdiction is sub-s. (1) and sub-s. (4), which confers additional jurisdiction on the court to that conferred by sub-s. (1), should not be interpreted as implying a limitation upon that sub-section. (at p301)
14. For these reasons I am of opinion that the five judges were wrong in law in holding that they had no jurisdiction to continue the present hearing after Foster J. had retired. (at p301)
15. But that does not necessarily mean that an order should be made against them for a writ of mandamus. Such an order would be a mere formality for the five judges are anxious and willing to continue the present hearing and complete it if they have jurisdiction to do so. But the order should be made if the prosecutors are entitled to it. The true duty may be ascertained by considering the form a writ of mandamus would take. The writ would be directed not against the five judges by name but against the court, the jurisdiction of which is at present being exercised by the five judges, naming them. But the court could not be directed to continue the present hearing. It would be directed to determine the dispute according to law and this would not prevent the court deciding its own procedure. (at p301)
16. There is to my mind a real difference between continuing and completing a part heard hearing and commencing a hearing de novo, even where the whole of the materials in the previous hearing can be put to immediate use on the new hearing. The five judges did decline to continue the present hearing but they have not refused to determine the dispute. All they have decided to do is to discontinue the present hearing and consider commencing the hearing of the dispute de novo or in other words adopting a different procedure to reach the same end. Section 39 of the Conciliation and Arbitration Act confers the widest procedural discretion on the court. It provides that the procedure of the court shall, subject to the Act and the regulations, be within the discretion of the court; that the court shall not be bound to act in a formal manner and shall not be bound by any rules of evidence, but may inform its mind on any matter in such manner as it thinks just; and that the court shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. In these circumstances I do not think it could be said that the five judges have declined jurisdiction because, on a mistaken view of s. 24 (4), they have decided to commence the hearing de novo and not to continue the existing hearing. This is a procedural decision and not a refusal to exercise jurisdiction. The prosecutors would only be entitled to a mandamus if there was a duty imposed upon the court to determine the dispute by continuing the existing hearing. I am unable to find any such duty. In reaching this conclusion I have been assisted by the authorities referred to by Kitto J. and Taylor J. during the hearing and cited by Kitto J. in his judgment. R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389 is not an authority to the contrary, for in that case the court had refused to determine the application before it. In the present case the court has decided, not that it will not determine the dispute at all, but only that it has no power to determine it by a particular procedure. The procedure it proposed to adopt is in my opinion not beyond its jurisdiction, although less convenient than continuing the existing hearing. Section 24 (6) provides for a new hearing in particular circumstances and expressly provides that on that hearing the court shall have regard to the evidence given, the arguments adduced and the judgments delivered during the previous hearing. But again the maxim expressum facit cessare tacitum could not be invoked to import the negative and imply a limitation upon the wide procedural powers conferred upon the court by s. 39 so that it would only be in those particular circumstances that the court could discontinue an existing hearing and commence de novo. (at p302)
17. For these reasons I would discharge both orders nisi. (at p302)
WEBB J. I agree with the submissions of Mr. Phillips of counsel for the prosecutors that Mr. Justice Foster should be taken to have been unable to continue to sit to hear the prosecutors' claim and therefore that the remaining members of the court had jurisdiction to continue the hearing. But I do not agree with Mr. Phillips' further submission that a writ of mandamus should go to the judges to continue the hearing. (at p303)
2. When the incident that led to these proceedings arose Foster J. had recently undertaken, at the request of the Chief Judge of the Court we are told, the further duties of judge under Pt. XA of the Navigation Act 1912-1952, and his Honour gave those further duties as his reason for not continuing to sit to hear the prosecutors claim. It may well be that those duties, the importance of which must be conceded, are such as are likely to call frequently for immediate attention and to warrant the judge with the responsibility of discharging them taking every care not to become engaged or detained unnecessarily as a member of the court on a protracted hearing of, say, a basic wage or standard hours claim. There was no suggestion that any such hearing would be adjourned to enable Foster J. to attend to urgent matters under the Navigation Act. That could not be expected. Then I see no ground for concluding that his Honour's reason was not a valid reason, as there is no evidence before this Court or any admission that warrants its rejection. It is not claimed that the Arbitration Court had material before it that is not in the record. The argument before us was confined to the statements of Foster J. as set out in the affidavit filed in support of the order nisi. (at p303)
3. His Honour after giving as his reason the extra duties undertaken by him also referred to the need to have the scope of s. 24 of the Conciliation and Arbitration Act 1904-1952 defined by a higher court, but did not qualify his reason already given. He merely added to it. (at p303)
4. But even if his Honour did not have a valid reason for withdrawing from the hearing of the prosecutors' claim there was, in my opinion, nothing in the law to prevent the remaining judges of the court from continuing the hearing. I think that Parliament in enacting s. 24 did not contemplate and so did not deal with the situation that arises when a judge declines, without sufficient cause, to take further part in the hearing of a claim. Section 24 provides: "(1) Subject to this Act, the jurisdiction of the Court shall be exercised by not less than three Judges. (2) The jurisdiction of the Court may be exercised by a single Judge with respect to - (a) the interpretation of an order or award; (b) the granting of leave to appeal to the Court from an act or decision of the Registrar; (c) the power referred to in paragraph (f) of sub-section (1) of section twenty-nine of this Act; (d) an application under section seventy-one of this Act; (e) a question or dispute arising under section eighty-three A of this Act; or (f) a prescribed matter of practice or procedure. (3) The Court constituted by one or more Judges may sit and exercise the jurisdiction of the Court, whether under this Act or otherwise, notwithstanding that the Court constituted by one or more other Judges is at the same time sitting and exercising the jurisdiction of the Court, whether under this Act or otherwise. (4) Where the hearing of an industrial dispute or of an appeal under section thirty-one A of this Act has been commenced before the Court but, before an order or award has been made determining the dispute or appeal, one of the Judges sitting as a member of the Court hearing the dispute or appeal has become unable to continue to sit or has ceased to be a Judge, the Court constituted by the remaining Judges has jurisdiction to complete the hearing and make an order or award determining the dispute or appeal in whole or in part. (5) An order or award shall not be made under the last preceding sub-section unless at least two Judges concur in the making of the order or award. (6) If, by reason of the last preceding sub-section, an order or award is not made determining the dispute or appeal, or an order or award is made determining the dispute or appeal in part, the Court constituted by not less than three Judges shall hear and determine the dispute or appeal, or so much of the dispute or appeal as has not been determined, and, in the hearing of the dispute or appeal, or of so much of the dispute or appeal as has not been determined, shall have regard to the evidence given, the arguments adduced and the judgments delivered during the previous hearing. (7) Subject to sub-sections (4) and (5) of this section, where the members of the Court are divided in opinion on a question, the question shall be decided according to the decision of the majority, if there is a majority, but if the members of the Court are equally divided in opinion, the question shall be decided according to the opinion of the Chief Judge, or, if the Chief Judge is not a member of the Court or there is a vacancy in the office of Chief Judge, according to the opinion of the next senior Judge present". (at p304)
5. If s. 24 is intended to be exhaustive of the instances in which a court might continue a hearing with a reduced number of judges, then the result is that an unwarranted refusal by a judge to continue to sit terminates the hearing, although the number of the remaining judges may be not less than the number required by the Act to deal with the claim. But there is no necessary inference to that effect from the language of s. 24 as there was held to be in R. v. Wallis ; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529 from the language of the enactment in question there; and so I am not prepared to hold that Parliament intended the drastic, if not irrational consequence, that in matters of such great public importance as those dealth with by the Arbitration Court, the court should be rendered impotent and the parties made to suffer heavy loss without remedy simply because of the unwarranted behaviour of one judge, when the number of the remaining judges would still be not less than the statutory minimum number required to deal with the claim. It would be startling if Parliament intended that the jurisdiction of the court to continue a hearing on the withdrawal of one of its members should depend not upon the remaining judges being sufficient in number to deal with the claim but upon the existence of a justification for the judge's withdrawal, and that the remaining judges should, quite unnecessarily for all practical purposes, have the disagreeable task of ascertaining the real cause of their brother's withdrawal and the still more disagreeable task of characterizing that cause. It is inconceivable that Parliament intended that the rest of the court should in any circumstances pursue an inquiry into the departing judge's reason for leaving and abandon the case if they found his reason was inadequate instead of proceeding with the case. (at p305)
6. To hold that Parliament had that intention would be to impute quite gratuitously to Parliament a lack of commonsense. (at p305)
7. But unless s. 24 is construed as being exhaustive the remaining judges have the right and duty to continue the hearing. That is not contested. (at p305)
8. It by no means follows from the limited effect thus assigned to s. 24 that it serves no purpose. It is still necessary to ensure that a minimum number of judges should sit and the concurrence of at least two judges in a decision of the Court, although some of s. 24 would appear to be redundant. (at p305)
9. However, although it follows that in my opinion the remaining members of the Court should have continued the hearing after Foster J. withdrew, still I am not prepared to hold that a mandamus should go. After all, their Honours did not decline to deal further with the prosecutors' claim, leaving the prosecutors if so advised to go to the great trouble and expense of making and serving a fresh claim. On the contrary their Honours intimated that they were prepared to hear counsel with a view to determining whether or not to proceed de novo. It is unquestioned that the judges of the Arbitration Court have inherent power to proceed de novo in some circumstances. If they exercise that power because they wrongly decide they have no jurisdiction to continue a hearing, it may seem that they are declining to exercise their jurisdiction according to law and that a writ of mandamus should issue. I do not find it easy to hold otherwise. It is no answer simply to say that they can make a mistake of law within their jurisdiction without becoming subject to mandamus. However, if their Honours had decided on a hearing de novo because they had a doubt as to what should be done I am disposed to think that a mandamus would not go to them. But I cannot see what real difference there is between the two cases. To me there seems to be only a technical difference not warranting this Court's interference here in the exercise of its discretion. I might hold otherwise if I thought that a hearing de novo would, as counsel for the unions as well as counsel for the prosecutors' claims, give rise to difficulties that would not attend a continuation of the hearing, or be likely to put the parties to substantial additional expense. But I think there is no such likelihood. (at p306)
10. Mr. Eggleston of counsel for employees' unions and Mr. Gowans of counsel for his Honour Mr. Justice Foster referred to the decision of this Court in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1949] HCA 51; (1949) 80 CLR 164 . However the facts of that case were very different, although I do not say that the decision affords no guidance here. In that case the Arbitration Court adjourned a basic wage hearing over the Federal elections then pending because one of the political parties had promised child endowment if returned. It was not suggested that the court could not continue the hearing in an orderly way while the child endowment issue was before the country. Their Honours may have thought that the hearing should be adjourned until the child endowment issue was decided. If so, they might have had to wait not merely until the elections were over but until Parliament had made its decision on the question of child endowment. No member of this Court expressed the opinion that there was a valid ground for the adjournment, but as the Arbitration Court had power to adjourn and did so for only a limited period, this Court exercised its discretion against interference. (at p306)
11. I would discharge the orders nisi. (at p306)
FULLAGAR J. With regard to the effect of s. 24 of the Conciliation and Arbitration Act, as it has stood since the coming into force of the Act of 1952, I am in agreement with what is said by my brothers Kitto and Taylor, whose judgments I have had the advantage of reading. That is to say, for the reasons which are given by them, and to which I have no desire to add anything, I am of opinion that (1) the evidence does not establish that Foster J. was "unable to continue to sit" within the meaning of s. 24 (4), but (2) it does not follow that his declining to continue to sit involved any breach of duty on the part of Foster J., and (3) s. 24 (4) did not deprive the five judges, who remained after the withdrawal of Foster J., of jurisdiction to continue the hearing of the dispute. (at p307)
2. Now, the decision of the five judges not to continue the hearing was based solely on the view entertained by them that the court so constituted had no jurisdiction to continue the hearing. The words actually used by them are : - "We are of opinion that the present five occupants of the Bench have no jurisdiction to complete the present hearing of these disputes". No question of discretion as to continuing the hearing arose - or, on that view being entertained, could arise. It was simply a matter of jurisdiction. That question being determined in the affirmative I can find nothing in the case which could properly be held to disentitle the prosecutors to the relief to which they are prima facie entitled, that is to say to a writ of mandamus. (at p307)
3. The prosecutors asked, in effect, in the first place, for a writ directed to the five judges, and in the alternative for a writ directed to the six judges. The prosecutors were organizations representative of employers. Mr. Eggleston, appearing for a number of organizations representative of employees, did not suggest that neither writ should issue, but submitted that the writ should be directed to the six judges and not to the five. (at p307)
4. The course supported by Mr. Eggleston should clearly be considered first, because, if it were proper to adopt that course, no question as to whether s. 24 (4) has the effect of depriving the remaining five judges of jurisdiction would arise. That course involves in substance, though probably not as a matter of correct form, a direction to Foster J. to continue to sit as a member of the court. Logically, therefore, the first question arising in these proceedings was whether the "withdrawal" of Foster J. involved any dereliction of legal duty on his Honour's part. If it did, it would be the duty of this Court to direct the issue of a writ of mandamus accordingly. The matter was (for fairly obvious forensic reasons) not argued on this logical basis, but it is of no consequence that it was not so argued. For it seems to me to be clear that this Court cannot, on the material before it, give any such direction to Foster J. A member of any such body or tribunal as the Court of Conciliation and Arbitration must have a degree of discretion as to whether he will sit or continue to sit on any inquiry which the Court may be called upon to undertake. The material before this Court is somewhat scanty, and the reasons for the "withdrawal" of Foster J. were not very fully debated before us. But, although an affirmative finding that he was "unable" to continue sitting within the meaning of s. 24 seems to me to be impossible, "inability" so to continue is not the only possible justification for declining to continue to sit. All we really know is that the reason given by his Honour is that he "cannot satisfactorily do the work which he has undertaken in connection with the maritime industries as a single judge exercising the jurisdiction of the court pursuant to the Navigation Act 1912-1952, and as well continue to sit in" the case which we have now under consideration. It may be, as Mr. Eggleston argued, that, the hearing having commenced and continued for a very substantial period, there would be, if nothing more appeared, a duty resting on Foster J. to continue to sit and to take part in arriving at a decision. I express no opinion on this point. But an opinion, entertained in good faith, that a choice was necessitated between the performance of that duty and the performance of another duty, followed by a choice made in good faith between the two alternatives, provide, in my opinion, a prima facie justification even if there would otherwise be a breach of duty. I doubt indeed whether a court having jurisdiction to grant the prerogative writs, if it were once satisfied that such an opinion existed and that such a choice had been made, should or could inquire further into the position. It might conceivably inquire further if it were seen that the result of the "withdrawal" would be that the part-heard proceeding could not be determined or must be commenced de novo. But neither of those circumstances exists in the present case. (at p308)
5. For these reasons I am of opinion that an order cannot be made for the issue of the writ to Foster J. or to the six judges. But it seems to me to follow almost of necessity that the writ should go directed to the five judges. (at p308)
6. It is true, of course, that there has been no refusal by the Court of Conciliation and Arbitration to hear and determine the dispute. But there has been a refusal to continue the present hearing, which has already lasted, we were told, some sixty days. The propriety of the refusal has, of course, never been in question: the Court, believing, as it did, that without Foster J. it had no jurisdiction to proceed, had no alternative but to refuse to proceed. The scope of the writ of mandamus is not, in my opinion, confined to cases in which a court declines jurisdiction altogether over the subject matter. It is, to my mind, a remedy which is entirely appropriate to the situation which has arisen. That situation is no mere matter of internal arrangement within the court itself: it is no mere matter of a discretionary assignment of the court's business to particular members of the court. The substance of the position was that the court was faced in the first place with the two alternatives of continuing the hearing before the Court constituted as before but without Judge Foster and commencing the hearing de novo before the court constituted in the same way. When it formed the opinion that the court so constituted would have no jurisdiction to continue the hearing, the first alternative was excluded, and the second alternative alone remained. But, when this question of jurisdiction is determined by this Court in the opposite way, the parties have, in my opinion, a right to have the hearing continued. No discretionary reason for not so continuing it has been suggested from beginning to end. The situation appears to me to be precisely of that kind to which the writ of mandamus is appropriate. (at p309)
7. The writ issues neither as of course nor as of right. It may be refused to a person prima facie entitled to it, if good reason is shown for a discretionary refusal. The only ground that could be suggested, so far as I can see, for its discretionary refusal in this case is that there is, having regard to the provisions of the Conciliation and Arbitration Act, no substantial or practical difference between a continuation of the hearing and a commencement of the hearing de novo. This ground, it is perhaps material to note, was not suggested by counsel. On the contrary, Mr. Phillips and Mr. Eggleston, if agreed on little else, were agreed that a re-commencement, as distinct from a continuance, would be disadvantageous to the parties. (at p309)
8. When the Court of Conciliation and Arbitration announced its decision that "the present five occupants of the Bench have no jurisdiction to continue the present hearing of these disputes", their Honours said that they would hear representatives of parties and interveners as to the future course to be adopted, and they said: - "We have in mind, if the present situation continues, that the judges now on the Bench should hear the disputes, taking advantage, so far as is proper, of the material placed before the Court, of which we were all members, in the earlier hearing". What was obviously intended was that, although there should be a re-commencement of the hearing, advantage should be taken of s. 39 (b) of the Act, which provides, in effect, that the court may inform itself in any way it thinks fit on any material question. It was clearly thought that, by virtue of this provision, the court could, to a very large extent at least, dispense with the repetition of evidence and argument, "informing itself" by reference to what had already been put before the court and recorded. (at p310)
9. It is, of course, possible that a judicious use of s. 39 (b) could very greatly mitigate the expense and inconvenience attending a re-commencement of the hearing. But no party could be precluded from re-calling witnesses or from advancing again any argument previously advanced. The burden of establishing that no practical disadvantage or inconvenience attaches to a re-hearing, as distinct from a continuance of a hearing, plainly must rest on anyone who asserts that there can be no such practical disadvantage or inconvenience. Here the parties are agreed that there will or may be considerable practical disadvantage or inconvenience. But, even if we ignore the views of the parties, there is nothing before us which can justify us in saying that there can be no such disadvantage or inconvenience. One would indeed think it prima facie probable that a right on either side to re-open any question of law or fact, to re-shape the whole case in the light of what has gone before, was very likely to be a source of additional expense, complexity, and general difficulty. But, however this may be, we cannot, on the material before us, decide that there is no practical difference between a re-hearing and the continuance of the hearing. I am not able to see any ground for a discretionary refusal of mandamus. (at p310)
10. The writ should, I think, be directed to the court constituted of the five judges, and the tenor of its command should be that the court so constituted do proceed with the hearing of the disputes notwithstanding the absence of Foster J. I see no reason why it should be peremptory. The costs of the prosecutors should, in my opinion, be paid by the organizations represented by Mr. Eggleston. Otherwise, there should be no order as to costs. (at p310)
KITTO J. The Arbitration Court has before it certain applications for variation of a number of awards. Its statutory duty is to determine the disputes to which these applications relate (s. 38 of the Conciliation and Arbitration Act 1904-1952) without regard to technicalities and legal forms (s. 39 (c)), not being bound to act in a formal manner, and not being bound by any rules of evidence, but being entitled to inform its mind on any matter in such manner as it thinks just (s. 39 (b)). The procedure to be followed in the hearing and determination of an industrial dispute is committed by s. 39 (a) to the discretion of the Arbitration Court itself. Subject to the Act, and subject in particular to s. 24 (4), the jurisdiction of that Court to decide these applications may be exercised by not less than three judges: s. 24 (1). (at p311)
2. Section 24 (4) is as follows: - "Where the hearing of an industrial dispute or of an appeal under section thirty-one A of this Act has been commenced before the Court but, before an order or award has been made determining the dispute or appeal, one of the Judges sitting as a member of the Court hearing the dispute or appeal has become unable to continue to sit or has ceased to be a Judge, the Court constituted by the remaining Judges has jurisdiction to complete the hearing and make an order or award determining the dispute or appeal in whole or in part". (at p311)
3. This provision is qualified by sub-s. (5), which provides that: - "An order or award shall not be made under the last preceding sub-section unless at least two Judges concur in the making of the order or award". (at p311)
4. With a view to performing its duty to determine the disputes now in question, the Arbitration Court constituted by six judges entered upon a hearing of the applications. The hearing proceeded until one of the six judges announced that he would take no further part in the proceedings. The remaining five judges had express authority under s. 24 (4) to complete the hearing and decide the application if the judge who withdrew was unable to continue to sit; but they decided that on the information before them they could not form the view that he was unable to continue to sit, and they held that in these circumstances they had no jurisdiction to complete "the present hearing" of the disputes. However, they announced that they would hear the parties as to future steps to be taken in respect of the disputes, having in mind, as they said, that they, the remaining five, should hear the disputes, taking advantage as far as might be proper of the material placed before the court in the earlier hearing. The matter had reached this stage, but had not proceeded beyond it, when the orders nisi for mandamus were granted which this Court is now asked to make absolute. (at p311)
5. I do not share with the learned judges of the Arbitration Court the view that the hearing originally begun by six judges was terminated by the withdrawal of one of them. The argument principally relied upon for that result is that an implication is to be found in sub-s. (4) of s. 24 to the effect that a hearing cannot validly be continued after one of the judges who constituted the court when the hearing began has ceased to take part, except only where that judge has become unable to continue to sit or has ceased to be a judge. Sub-section (4), however, does not convey to my mind the impression that the draftsman had the intention, antecedently improbable as it is, to define exhaustively the circumstances in which some only of the judges who have commenced a hearing may carry it to completion after others have ceased to participate. The main purpose of the sub-section, clearly enough, is to be found in its application to a court which, whatever the number of judges who commenced the hearing, has been reduced in number to three and then suffers a further reduction. In such a case it operates to qualify sub-s. (1), subject to the provision made by sub-s. (5). But in its application to a court of which more than two members remain, its only effect, I think, is to make explicit what is implicit in sub-s. (1); and it appears to me to do so for the particular cases which it describes, not because they are the only cases in which the legislature intended that a court reduced in number should be entitled to continue a hearing, but because they were the only cases which suggested themselves as at all likely to occur. If, in the present case, the five remaining judges had proceeded to hear the application without any question as to their power having been raised, and had reached the point of making orders or awards in determination thereof, it seems to me impossible to infer from s. 24 (4), or to hold on any other ground, that despite the authority which s. 24 (1) gives to not less than three judges to exercise the jurisdiction of the court those five judges would be precluded from determining the disputes by the circumstance that a sixth judge had sat with them during a portion only of the hearing. Apart from any express or implied statutory provision to the contrary, a court reduced in number during a hearing but still comprising a quorum may proceed to judgment: R. v. Thomas; Ex parte O'Hare (1914) 1 KB 32 . I cannot read s. 24 (4) as displacing the prima facie rule. (at p312)
6. But, even so, I am of opinion that there is here no case for a writ of mandamus. The duty of the Arbitration Court, as I have said, is to determine the applications which are before it; and the five remaining judges, far from refusing to perform this duty, are actually engaged in considering how they may best go about it. They have stated in perfectly plain terms that they have in mind to determine the applications after a hearing in which the past proceedings will be treated as having taken place in that hearing. The prosecutors contend, however, that to treat the incomplete hearing as technically at an end and embark upon a new hearing, even if the past proceedings are all taken as part of the new hearing, will amount to a refusal to perform a legal duty, namely a duty to continue the old hearing to the point of final decision. In my opinion this contention is based on a misconception. Subject to the provisions of the Act, the Arbitration Court is obliged, of course, to conduct a full hearing of the application, giving the parties a reasonable opportunity to present their respective cases. But the manner in which the opportunity is given is entirely a matter for that court to regulate as it thinks right in the exercise of its statutory discretion. If the Arbitration Court, after an incomplete hearing, or even after a completed hearing but before a decision has been given, decides that there should be a fresh hearing before the court constituted in the same or a different manner, so long as it remains true to say that the court is bona fide endeavouring to reach a determination of the dispute by means of a procedure which it considers expedient to serve the end in view it seems to me that the course so adopted cannot be treated by this Court as justifying intervention by mandamus: cf. Ex parte Evans (1894) AC 16 ; R. v. Hertfordshire Justices; Ex parte Larsen (1926) 1 KB 191 ; Fussell v. Somerset Licensing Committee (1947) KB 276 . I cannot see that it is anything to the point that the decision to re-commence the case has been made for the reason that the judges who are ready and willing to determine the dispute have formed a view, even an erroneous view, that to treat the future hearing of the matter as a continuation of the former hearing is not, or may not be, a valid exercise of their jurisdiction. Their statutory power to regulate their proceedings as their discretion dictates must, I think, include a power to stop one hearing of a matter and commence a new one, at least for any reason by which a tribunal acting in a proper manner could reasonably be actuated in attempting bona fide to perform the duty upon which their Honours are engaged. It would clearly not be right to say that the view which the five judges have announced in this case was one which could not reasonably be held, or that in forming and giving effect to it they were not bona fide endeavouring to perform their statutory function. That being so, by granting mandamus to correct what we conceive to be an erroneous view as to the legal significance of the withdrawal of the sixth judge we would be interfering in the conduct of the case before the Arbitration Court in an aspect with which that Court is entitled to deal as it sees fit. We would be doing what was condemned in R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 223, at p 243 , as entering upon an examination of "the regularity or irregularity of the manner in which the tribunal has proceeded". For although a choice between possible courses has been made because of the view taken upon a question of law, it remains true that it is only the manner in which the Arbitration Court should proceed to a decision that has been in question. (at p314)
7. Counsel have suggested that by denominating the future hearing a new hearing and not a continuation of the old the Arbitration Court will open the door to a spate of technical arguments and other misfortunes which neither side wishes to endure. The remedy lies primarily in the good sense and good faith of the parties themselves; but in so far as these may not suffice to obviate the anticipated evils, the Arbitration Court has ample power to ensure that the hearing will proceed with all reasonable smoothness and expedition. But even if the fears expressed before us are assumed to be well-founded, it by no means follows that in the event of the five judges adopting the course they have suggested, there would be a failure by the court to perform any part of its duty in accordance with law. (at p314)
8. The question whether mandamus should go may well prove of academic importance in this particular case, because the five judges, with the opinion of this Court before them, may now be prepared to continue the hearing from the point it had reached when their colleague left them, instead of starting afresh as they had in mind to do. But, for the reasons I have stated, I am of opinion that the orders nisi should be discharged. (at p314)
TAYLOR J. The prosecutors seek orders making absolute two orders nisi for the issue of writs of mandamus to certain judges of the Commonwealth Court of Conciliation and Arbitration. The first of the orders was addressed to five named judges of that court calling upon them and each of them to hear and determine, according to law, the application made pursuant to the summons issued out of the said court on 24th June, 1952, by the prosecutors and certain other organizations of employers registered under the Conciliation and Arbitration Act 1904-1952. The situation giving rise to the granting of the order nisi was created by the withdrawal of Foster J. from the hearing which had originally commenced before a Full Court constituted by him and the five respondents. There has been some suggestion that Wright J. was also a member of the court, but it is quite apparent that, although he sat as a member of the Commonwealth Court of Conciliation and Arbitration on the hearing of certain interlocutory applications connected with the summons, he was not at any time a member of the Court which commenced the hearing of the substantive matters raised thereby. The second order nisi was addressed to the six judges who originally constituted the court but otherwise was framed in terms similar to the first order nisi. (at p315)
2. After the withdrawal of Foster J., the remaining five members of the Court sat and made a statement in the following terms: - "We regard the provisions of s. 24 (4) and (5) of the Conciliation and Arbitration Act, as providing for the only circumstances in which the remaining judges of a court constituted to deal with an industrial dispute, may, in the absence of one of the judges so constituting the court, complete the hearing. On the information before us as to the reason given by Mr. Justice Foster for his decision not to continue to sit, we cannot form the view that he is unable to do so within the meaning of s. 24 (4). Accordingly we are of opinion that the present five occupants of the Bench have no jurisdiction to complete the present hearing of these disputes. We are prepared to hear the submissions of those represented before us as to what should now be done, but, as present advised, we propose assembling in Melbourne on Tuesday, 26th May at 10.30 a.m. after the sittings in Sydney, to hear the representatives of parties and interveners as to future steps to be taken in respect of the present disputes. We have in mind, if the present situation continues, that the judges now on the Bench should hear the disputes, taking advantage as far as is proper of the material placed before the court, of which we were all members, in the earlier hearing". (at p315)
3. The course contemplated by their Honours' statement was not pursued on 26th May because prior to this date the prosecutors moved for and obtained the orders nisi referred to. (at p315)
4. Upon their Honours' statement it becomes necessary to examine the relevant provisions of the Act with a view to determining whether the withdrawal of Foster J. in the circumstances in which it took place, deprived the Court of jurisdiction to continue with a hearing which, at the time of that occurrence, had then proceeded for a great many days. But before doing so, it is not unimportant to observe that the statement was not intended as a judicial determination of the questions therein referred to and was couched in language which made this perfectly clear. It was merely an expression of opinion by the judges concerned that they could not proceed with the uncompleted hearing. (at p315)
5. After the amendments introduced into the Commonwealth Conciliation and Arbitration Act 1904-1946 by the Commonwealth Conciliation and Arbitration Act 1947, s. 24 of the principal Act was in the following form: "24 (1) The jurisdiction of the Court shall, subject to the next succeeding sub-section, be exercised by not less than three Judges. (2) The jurisdiction of the Court may be exercised by a single Judge with respect to any prescribed matter of practice or procedure. (3) Where the members of the Court are divided in opinion on any question, the question shall be decided according to the decision of the majority, if there is a majority, but if the members of the Court are equally divided in opinion the question shall be decided according to the opinion of the Chief Judge, or, if the Chief Judge is not a member of the Court or there is a vacancy in the office of Chief Judge, according to the opinion of the next senior Judge present". (at p316)
6. At this stage there was no provision in the Act which enabled a court originally constituted by three judges for the hearing of a matter within its jurisdiction to continue the hearing in the absence of one of its members. The withdrawal of one member in such circumstances would at that time have meant that the court was no longer properly constituted, and, therefore, unable to exercise the jurisdiction conferred by the Act upon the court. But, there can be no doubt that, at that time, a court originally constituted by more than three judges might, in the absence of one or more of its members, continue to exercise the jurisdiction of the court in any particular matter provided that, of the original members of the court, at least three remained to constitute the court in accordance with sub-s. (1). In 1950 steps were taken to avoid the delay and inconvenience which would follow upon the absence of one member of a court originally constituted by three judges. To deal with such a situation arising in hearings commenced before the Conciliation and Arbitration Act 1950 came into operation, s. 4 of that Act was enacted in the following terms: "4. (1) Where the hearing of an industrial dispute was, before the commencement of this Act, commenced before three Judges of the Commonwealth Court of Conciliation and Arbitration but, before an order or award has been made determining the dispute, one of those Judges has become unable, by reason of illness, to continue to sit as a member of the Court hearing the dispute, the Court constituted by the other two Judges shall have jurisdiction to complete the hearing and to make an order or award determining the dispute in whole or in part. (2) An order or award shall not be made under the last preceding sub-section unless both Judges concur in the making of the order or award. (3) If, by reason of the last preceding sub-section, an order or award is not made determining the dispute, or an order or award is made determining the dispute in part, the Court, constituted by not less than three Judges, shall hear and determine the dispute, or so much of the dispute as has not been determined, and, in the hearing of the dispute, or of so much of the dispute as has not been determined, shall have regard to the evidence given, the arguments adduced and the judgments delivered during the previous hearing". (at p317)
7. Such a provision, obviously, was necessary to enable the jurisdiction of the court to be exercised by two judges of the court in the circumstances specified in sub-s. (1) thereof, but no legislation was necessary - nor was any enacted - to make provision to enable the court, when constituted by three or more judges, to continue a hearing originally commenced by a greater number of judges. In 1952, however, s. 24 of the Act was repealed and the following new provisions were substituted: "24 (1) Subject to this Act, the jurisdiction of the Court shall be exercised by not less than three Judges. . . (4) Where the hearing of an industrial dispute or of an appeal under section thirty-one A of this Act has been commenced before the Court but, before an order or award has been made determining the dispute or appeal, one of the Judges sitting as a member of the Court hearing the dispute or appeal has become unable to continue to sit or has ceased to be a Judge, the Court constituted by the remaining Judges has jurisdiction to complete the hearing and make an order or award determining the dispute or appeal in whole or in part. (5) An order or award shall not be made under the last preceding sub-section unless at least two Judges concur in the making of the order or award". (at p317)
8. It is reasonably clear that sub-s. (4) of this section is modelled on s. 4 (1) of the Act of 1950. But its operation is not restricted to cases where the hearing of an industrial dispute was commenced before three judges; it applies whether the number of judges originally constituting the court is three or more. As a consequence of this, sub-s. (4) does not purport to vest the jurisdiction of the court in "the other two Judges" but provides that "the Court constituted by the remaining Judges has jurisdiction to complete the hearing and make an order or award determining the dispute or appeal in whole or in part". No doubt, the language of the sub-section is appropriate to vest the jurisdiction of the court in two judges in cases where the court was originally constituted by three judges and, indeed, in cases where, although the court was originally constituted by more than three judges, the ultimate "remaining" number is only two. Provision for the latter circumstance was not made by the Act of 1950. (at p317)
9. But it was argued before the Court of Conciliation and Arbitration and in this Court, that s. 24 (4) goes much further. That sub-section, it was contended, makes express provision for cases where the "remaining" number of judges is three or more. This is true, but unless, as it was further contended, the provision is exclusive, it does not follow that the court, when constituted by three or more judges, is unable to continue a hearing which has been interrupted by the withdrawal of one of the judges who originally sat as a member of the court. (at p318)
10. Several arguments were advanced to establish that the effect of s. 24 (4) is confined to the situation created by the withdrawal of one member of a court constituted, immediately before the occasion of his withdrawal, by three judges. In my opinion, however, this argument is not tenable. It is disposed of by the clear words of sub-s. (4) itself, and if support were needed for this conclusion, it is to be found both in sub-s. (5) which provides that an order or award shall not be made under the preceding sub-section unless at least two judges concur in the making of the order or award, and, in a comparison of the provisions introduced in 1952 with those introduced by the Act of 1950. (at p318)
11. This conclusion, however, is by no means fatal to the proposition that s. 24 (4) does not preclude the court, as constituted by the five respondent judges, from continuing the hearing of the proceedings before them. As I have already pointed out, upon the legislation as it stood both in 1947 and in 1950, the court could be properly constituted by three judges of the court and a court so constituted might have continued the hearing of any matter before it, notwithstanding the fact that the hearing had originally commenced before a greater number of judges. This proposition was disputed by counsel who appeared for some of the industrial organizations which were served with notice of these applications and reliance was placed upon the principle which applies where a dispute is committed to a decision of a number of specified arbitrators. But, in my opinion, this principle has no application to cases where a court is invested with the power to perform specified functions and the only requirement for its proper constitution is that it shall be constituted by not less than a specified number of judges. In the one case the function is committed to specified arbitrators, whilst in the other the power is reposed in the court constituted in accordance with minimum legal requirements. In my opinion, s. 24 (4) does not, in any way material to the present case, alter the legal position as it stood before the enactment of that section in 1952. Upon a review of the legislation, it is clear that the primary purpose of s. 24 (4) was to permit the Court of Conciliation and Arbitration to be constituted, in certain circumstances, by less than three judges, notwithstanding the provisions of s. 24 (1), and not to require the court to be constituted by more than three judges either when one of more than three judges who have commenced the hearing of a matter has become unable to continue to sit or has ceased to be a judge. But even if the effect of the language of sub-s. (4) is to require the court to be constituted by more than three judges in cases where a hearing has been commenced before five or more judges and one of them has become unable to sit, or, has ceased to be a judge, the sub-section, in terms, has no application to the situation created where one of such judges has withdrawn from the hearing on some ground other than that referred to in the sub-section. (at p319)
12. It was argued, however, that the terms of sub-s. (4) were exclusive and by necessary implication precluded this latter conclusion. In support of this contention reliance was placed upon the observations of Dixon J. in R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529, at pp 549, 550 . But the principle applied in that case is not in point. In that case the court was concerned with two legislative provisions contained in the same statute and, in the result, held that the presence of a particular provision in the statute precluded the conclusion that a provision couched in general terms and capable of application to an infinite variety of circumstances dealt also with the particular matter expressly dealt with by the particular provision. That this was the basis of the principle upon which the court acted is emphasized by the quotation in that case of a passage from a joint judgment to which Dixon C.J. was a party, in Anthony Hordern and Sons Ltd. v. Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 . In that case the Court was concerned also with the construction of provisions of the Commonwealth Conciliation and Arbitration Act 1904-1930 and the judgment proceeds: "When the Legislature explicitly gives a power by particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power" (1932) 47 CLR, at p 7 . No question arises in these cases whether the general provision concerning the constitution of the court, contained in s. 24 (1) is, by reason of the provisions of sub-s. (4) subject to some modification; the critical question is whether by necessary implication an operation should be given to the latter sub-section which is not justified upon its expressed terms alone. It does not, in terms, provide that, if one of more than three judges refuses to sit further in a case, the remaining judges may not continue the hearing. Nor, having in mind the primary purpose for which the sub-section was so obviously designed to deal, should any such meaning be attributed to it. It may be that the draftsman did not have in mind the possibility of a judge refusing or declining to sit on grounds other than inability to continue but whatever the explanation for the present form of the sub-section may be, I am unable to find in it any feature which necessarily requires its literal meaning to be extended by implication in the manner suggested. In all the circumstances I am of the opinion that the provisions of sub-s. (4) do not require the court to be constituted by more than three judges in cases where a judge has withdrawn himself from a hearing on a ground not specified by that sub-section. (at p320)
13. Consequently in the determination of these matters it is quite unnecessary for us to endeavour to determine whether or not Foster J. was, within the meaning of sub-s. (4), unable to continue to sit. For, if he did become unable to sit the sub-section authorizes the remaining five judges to continue the present hearing and if he did not become unable to sit, within the meaning of sub-s. (4), the sub-section has no application to the circumstances of the case. In the latter circumstance, the Court is still properly constituted under the Act, notwithstanding the absence of Foster J. That, being so, the court as constituted by the remaining five judges may, lawfully, continue with the present hearing. (at p320)
14. But this does not mean that the orders nisi or either of them should be made absolute. Upon the statement made by the five respondents to the first order nisi, it is clear that they have not refused to hear the prosecutor's application. It is true that they have taken the view that the court as at present constituted is not entitled to continue the present hearing as though there had been no change in the constitution of the court, but is equally true that their Honours indicated quite clearly that, subject to hearing any relevant submissions of counsel, they were of a mind to hear and determine the dispute and for this purpose - as, in the exercise of their jurisdiction, they were fully entitled to do - to have regard to the evidence already given and to the submissions already made in the hearing before the court constituted by themselves and Foster J. Their Honours' statement does not indicate to me any refusal to hear and determine; on the contrary, it discloses an intention on the part of the court, as constituted by the five respondent judges, to adopt a course calculated to ensure a hearing which would occasion neither delay nor any real inconvenience to the parties. It was claimed that the adoption of this course before a court, the constitution of which has changed, would give rise to difficulties but I must confess that I am unable to appreciate that any real difficulties would arise which could not also arise during a continuation of the present hearing. In the circumstances I am unable to see that the respondents have declined to hear and determine the application according to law or that this Court is entitled to make either order absolute. I have no doubt that if their Honours entertained a doubt as to the validity of continuing the existing hearing they were perfectly entitled in their discretion to adopt the course which they proposed. In the circumstances I am of the opinion that both orders nisi should be discharged. (at p321)
ORDER
Both orders nisi discharged.
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