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High Court of Australia |
COAL MINERS' INDUSTRIAL UNION OF WORKERS OF WESTERN AUSTRALIA v. AMALGAMATED
COLLIERIES OF WESTERN AUSTRALIA LTD.
[1960] HCA 68; (1960) 104 CLR
437
Industrial Arbitration
High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(4) and Menzies(5) JJ.
CATCHWORDS
Industrial Arbitration - Lock-out - Circular by colliery company calling for increased production - Stated that otherwise company would have to cease operations - Union belief that dismissals imminent - Application by Union to Arbitration Court - Ex parte order prohibiting company dismissing employees for failure or refusal to increase production - Statutory provision protecting Arbitration Court from control by prerogative writs - Certiorari - Prohibition - Industrial Arbitration Act, 1912-1952 (W.A.), ss. 108, 137 (1) - Industrial Arbitration Regulations (W.A.), r. 93.
HEARING
Sydney, 1960, April 26;DECISION
September 8.2. Section 108 of the Industrial Arbitration Act, 1912-1952 (W.A.) provides that proceedings in the Court of Arbitration or before the President of that Court shall not be impeached or held bad for want of form, nor shall the same be removable to any court by certiorari or otherwise; and no award, order or proceeding of the Court or before the President shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature on any account whatever. There is a proviso giving an appeal in a very limited description of case of a criminal nature but with that we are not concerned. (at p442)
3. It might be thought that the exclusion of certiorari expressed by this provision would afford an insuperable objection to the use of that remedy to quash an order of the Arbitration Court; but reliance is placed upon the restrictive construction placed upon similar provisions in decided cases which say that they do not operate to remove the remedy where the subject matter is outside the scope of the authority of the inferior court: R. v. Justices of the West Riding of Yorkshire (1794) 5 TR 629 (101 ER 352) , per Grose J. (1794) 5 TR, at p 633 (101 ER, at p 353) ; The Colonial Bank of Australasia v. Willan (1874) LR 5 PC 417, at p 442 ; Ex parte Bradlaugh (1878) 3 QBD 509, at p 512 ; Hunter v. Sherwin (1869) 6 WW & a'B (2) 26 ; Re Biel (1893) 18 VLR 456 at p 459; 14 ALT 70, at pp 71, 72 ; Clancy v. Butchers' Shop Employes Union (1904) 1 CLR 182 ; Baxter v. N.S.W. Clickers Association [1909] HCA 90; (1909) 10 CLR 114 ; cf. R. v. Foster; Ex parte Isaacs (1941) VLR 77, at pp 82-86 . (at p442)
4. In this Court the fact that s. 75 (v) of the Constitution invests jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth has necessarily affected the interpretation of similar clauses in Commonwealth legislation. Such a provision cannot deny the remedy where it properly lies. But in relation to statutory as distinguished from constitutional limitations, restrictions or restraints on the authority of a federal tribunal, the provision may be taken into account in ascertaining what the apparent restriction or restraint actually signifies when it is necessary to determine whether the situation is one in which prohibition properly lies. I have explained this in R. v. Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387, at pp 398, 399 . I repeat portion of the passage here because it refers to the more general doctrine obtaining independently of any constitutional fetter upon legislative power to exclude the remedy of prohibition. What was there under examination was the effect of a provision that an award or order of a Board should not be challenged, appealed against, quashed or called in question or be subject to prohibition, mandamus or injunction in any court on any account whatever. After stating that in form the provision might appear to be an attempt to say that even where the law denied to the Board all authority over the proceedings so that they could not result in a lawful and effective exercise of power there should nevertheless be no prohibition, the passage proceeds - "But even in jurisdictions where there is no constitutional limitation upon legislative power similar enactments have not received so drastic an interpretation. They have been read rather as meaning that, where the tribunal has made a bona fide attempt to exercise its authority in a matter relating to the subject with which the legislation deals and capable reasonably of being referred to the power possessed by the tribunal, the acts of the tribunal shall not be invalidated and accordingly shall not be the subject of prohibition." (1949) 77 CLR, at p 398 . Then follows a list of authorities including some of those cited above. (at p443)
5. It is perhaps desirable to add a reference to R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at pp 614-618 and to R. v. Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australia Ltd. [1947] HCA 32; (1947) 75 CLR 361, at p 369 , where the same criterion is expressed with greater elaboration. (at p443)
6. It follows from the foregoing that the appeal against the order of the Supreme Court quashing that of the Arbitration Court must depend upon the question whether the order of the latter Court was or was not altogether outside the scope of the authority of the Arbitration Court or at all events ought or ought not to be considered an order made as a bona fide attempt to exercise a power belonging to that tribunal as a power to which the order might be reasonably referred. (at p443)
7. The power in question is conferred by s. 137 (1) of the Industrial Arbitration Act 1912-1952. The sub-section is divided into a number of clauses and although the divisions are exhibited very clearly to the eye the generality, not to say vagueness, of the expressions employed makes any exact application of the provision difficult. It is perhaps best to set out the material part of the sub-section which is as follows: "Where it appears reasonably likely to the Court that an act, omission or circumstance will occur, or has occurred, or having occurred, will be repeated or continued; and that the result of the act, omission, circumstance, repetition, or continuance is or will be (a) to cause, contribute to, or hasten the occurrence of a lock-out or strike . . . the (Arbitration) Court may make such order as it considers necessary to terminate or avoid that result." I have omitted four alternative paragraphs lettered (b), (c), (d) and (e) which are inapplicable to the facts. It may be remarked that the opening expression clearly enough means "Where it appears to the Court to be reasonably likely that" etc. It is perhaps a small point but the meaning of par. (a) seems to be that the occurrence of a lock-out or strike will be caused contributed to or hastened, not that a lock-out or strike will be caused or contributed to or its occurrence hastened. Though a suggestion was made that perhaps the Arbitration Court made its order to avert a strike, it is quite certain that the whole proceeding was based on the apprehension or supposed apprehension of a lock-out and not a strike as indeed the heading of the proceeding shows. It is therefore with the word "lock-out" and not the word "strike" that we are concerned. "Lock-out" is a defined expression. The definition which is contained in s. 6 need be quoted only so far as material. The word is to include any closing of a place of employment or any suspension of work or any refusal by an employer to continue to employ any number of his workers . . . with a view to enforce compliance with the demands made by any employer on any workers. (at p444)
8. The Regulations under the Act provide for the procedure to be followed in applying for an order made under s. 137 and they include an important provision which is reg. 93. By reg. 93 it is provided that in urgent cases the application may by leave of the President be heard by the Court ex parte in chambers. It is also provided that any person named in or affected by an ex parte order may move the Arbitration Court on twenty-four hours notice to the applicant to vary, suspend or cancel the order. The appellant, the Coal Miners' Industrial Union of Workers of Western Australia, availed themselves of reg. 93 and on 10th December 1959 with the leave of the President on the ground that the application to the Court was of an urgent nature applied to the Arbitration Court in chambers for "an injunction" restraining the respondent Amalgamated Collieries of W.A. Ltd. "from carrying out a proposed lock-out." The order which the Supreme Court has quashed was the result of the application. As a general rule the materials upon which a court or tribunal acts in making an order which it is sought to quash or prohibit on the ground of complete absence of jurisdiction ought not to affect the question of jurisdiction on prohibition or certiorari. But it will have been noted that upon the terms of s. 137 (1) the power of the Arbitration Court arises "where . . . to the Court it appears reasonably likely that" the required facts exist or will occur. That may give materiality to what the Arbitration Court had before it. What in fact was made to appear to that Court may be stated very shortly. On 2nd December 1959 a meeting took place between the chairman and no doubt other directors and officers of the respondent company and members of the executive and other representatives of the combined unions concerned. From a circular letter to all employees from the respondent company's chairman written next day it appears that the respondent company said that production of coal in its mechanized pits had in the last four weeks fallen by 2,000 tons a fortnight. The letter contains the following passage: "At a meeting last evening with the Executive of the Combined Unions and other representatives of such Unions I made it clear that unless production in the mechanized pits immediately increases to a quantity sufficient to enable the Company to meet its orders and carry on its mining operations otherwise than at a loss the Company would have no option but to cease its operations." This letter was circulated on Friday, 4th December. On Tuesday, 8th December, some members of the union reported that they had been informed that officers of the company had said that some dismissals would take place on Friday, 11th December. The president of the appellant union said that he communicated with the superintendent and the general manager of the respondent company but they would not confirm or deny the statement. The latter stated, so it was said, that the company would be guided by the economic situation. The Arbitration Court thereupon made an ex parte order the operative part of which is as follows: "the Court . . . hereby orders and directs that the respondent company be and is hereby prohibited during the continuance in force of this order from giving to any members of the Applicant Union employed by the Company notice terminating their said employment because of a failure or refusal by the workers employed by the Company by their efforts to increase to a figure desired by the Company the production of coal from the Company's mechanized pits." A direction followed for service of the order and endorsed thereon was a notice that a party affected by the order might move the Court on twenty-four hours notice to the applicant to vary, suspend or cancel the order. The respondent company did not make such an application to the Arbitration Court but on 11th December 1959 obtained from the Supreme Court an order nisi for prohibition or certiorari directed to the Arbitration Court. Why on the return of the order nisi the Supreme Court preferred to make an order in the nature of certiorari rather than prohibition does not appear. Certiorari is expressly taken away by s. 108 while prohibition is not directly mentioned. But the point is not material: for I think neither prohibition nor certiorari could properly be granted. (at p446)
9. The objections made to the order depend in part upon the grounds upon which it is said to have been based, in part upon the terms of the order and in part upon the construction placed on s. 137 (1) on behalf of the respondent. It is contended that at the root of the order is a misapprehension of the definition of "lock-out" and of the manner in which it applies to s. 137 (1). For as a result of the definition the material part of the conception depends upon the existence in the minds of the employers of an animating purpose of enforcing compliance with demands made on workers. When the definition is applied accordingly to s. 137 (1) it means that the act, omission or circumstance that has occurred or will occur or is likely to occur will have or is likely to have a result which will cause, contribute to or hasten the closing of the place of employment or suspension of work or refusal by the employer to continue to employ some number of his workers and that the view with which it is done by the employer is, will be or is likely to be to enforce compliance with the demands made by him on any worker. It is contended for the respondent that the Arbitration Court either misconceived this provision or misconstrued the fact; for the relevant fact, according to the argument, simply was that unless production was raised the employers harboured an intention to close the pits, or at all events stated an opinion that they would be unable to avoid doing so. The difficulty about such a contention is that it ignores the criterion of jurisdiction which results from a combination of s. 108 with the terms of s. 137 (1). Section 137 (1) by its introductory words "where it appears reasonably likely to the Court" commits to the Court the judgment of the very facts which the foregoing contention of the respondent treats as jurisdictional. Section 108 then operates in the manner that has been explained at the commencement of this judgment. The result is to make it impossible to base prohibition or certiorari on any error of the Arbitration Court made in a bona fide attempt to apply these conceptions in the course of exercising the power which that Court possesses, a power to which the order might reasonably be referred. Plainly it is not a misapprehension which would take the order completely outside the scope of the Arbitration Court's authority. (at p446)
10. One point that may be made against the order is that it is dealing not with a cause of the occurrence of a lock-out but with what would itself constitute a lock-out; that is to say, a lock-out may be threatened by the company's communications to the men and to the union leaders but those communications are not the cause of the lock-out. It may be said that it is to confuse the thing itself with its causation. But again, these are matters within the judgment committed to the Arbitration Court. (at p447)
11. The operative part of the order itself is not precise in its language. It is difficult to say what the words "giving to any members of the union employed by the company" cover. If it means to include a notice to any one member it is clearly not within the contemplation of s. 137 (1). If the phrase is compared with the expression "failure or refusal by the workers employed by the company," the latter expression may be regarded as generally covering the workers employed as a whole, while the former expression may have been used to cover the possibility of only some of the members being selected for dismissal but again as denoting a substantial body. It is objected that the order would operate to prevent a company ceasing operations in consequence of or with a view to winding up, to take an example. The answer to most of the objections to the terms of the order is that they ought not to be construed any more widely than its terms demand. The fair meaning of the order is that the respondent company shall not give notice of dismissal to any substantial body of the members of the union employed by it if the dominant reason for doing so is a failure or refusal by the general body of workers employed by the company to increase production in the mechanized pits to a figure which the company requires. So construed, the order appears to be one sufficiently justified by the concluding words of sub-s. (1) of s. 137 to come within the operation of s. 108 as already explained in this judgment. By the concluding words I mean "may make such order as it considers necessary . . . to avoid that result." (at p447)
12. It may be unfortunate that owing to the course taken, first by the appellant union in obtaining an ex parte order, and next by the respondent Amalgamated Collieries of W.A. Ltd. in not moving the Arbitration Court to discharge the order, what was evidently intended as a temporary provision should have continued in force as an order of indefinite operation. One would suppose that it is unsuitable for such a purpose but that is a matter which cannot affect the result of the order nisi for prohibition or certiorari. The fact is that the legislature has left the matter to the Arbitration Court and in the Supreme Court no other question could be considered except invalidity on the ground of complete lack of jurisdiction falling for that reason or otherwise outside the protection of s. 108. (at p447)
13. For the foregoing reasons I think the appeal should be allowed and the order of the Full Court of the Supreme Court of Western Australia discharged. (at p448)
McTIERNAN J. I agree that this appeal should be allowed. In my opinion the order made by the Court of Arbitration of Western Australia is protected by s. 108 of the Industrial Arbitration Act 1912-1952 (W.A.). It is true that a privative section has been held not to protect the order of a tribunal where it is acting altogether outside its jurisdiction. In this case, s. 137 (1) is the relevant section of the Act by reference to which the authority of the Court of Arbitration to make the order which it made is determined. This section confers, amongst other things, power on the Court to make an order "where it appears reasonably likely to the Court that an act, omission or circumstance will occur, or has occurred, or having occurred, will be repeated or continued; and that the result of the act, omission, circumstance, repetition or continuance is or will be (a) to cause, contribute to or hasten the occurrence of a lock-out or strike . . . ". (at p448)
2. The Court of Arbitration, on the application of the appellant union, issued an order prohibiting the respondent company from giving any members of the appellant union employed by the company notice terminating their employment because of a failure or refusal of the workers employed by the company to increase to a figure desired by the company production of coal from the company's mechanized pits. It seems to me that this is an order which on its face is made in exercise of the jurisdiction conferred on the Court by s. 137 (1). By no manner of means can it be said to fall altogether outside that jurisdiction. It has been argued that the order may be read as prohibiting dismissals unrelated to the circumstances under which it was made. I think that it should be construed so as not to extend beyond the authority conferred by s. 137. I arrive at the conclusion that the judgment of the Full Court of the Supreme Court is erroneous as being inconsistent with the abovementioned provisions of the Industrial Arbitration Act. (at p448)
FULLAGAR J. In this case I entirely agree with the judgments of the Chief Justice and of Menzies J., which I have had the advantage of reading, and I have nothing to add. (at p448)
KITTO J. In my opinion the appeal should be allowed. I agree in the judgment of the Chief Justice. (at p449)
MENZIES J. The Court of Arbitration of Western Australia consists of three members - a president having the rights and privileges of a judge of the Supreme Court, and two ordinary members, one nominated by the Industrial Unions of Employers and the other by the Industrial Unions of Workers. Although the Court is a court of record, it is an inferior court with a strictly limited jurisdiction. Part of the jurisdiction of the Court is conferred by s. 137 of the Industrial Arbitration Act whereby the Court is authorized, where it appears reasonably likely to the Court that something will occur or has occurred and that the result is or will be "to cause, contribute to, or hasten the occurrence of a lock-out", to make "such order as it considers necessary to terminate or avoid that result". "Lock-out," by definition (s. 6), includes "any closing of a place of employment . . . or any refusal by an employer to continue to employ any number of his workers . . . with a view to enforce compliance with the demands made by any employer on any workers." (at p449)
2. In the purported exercise of this power and upon the application of the appellant union, the Court prohibited the employer company - Amalgamated Collieries of W.A. Ltd. - "from giving to any members of the Applicant Union employed by the Company notice terminating their said employment because of a failure or refusal by the workers employed by the Company by their efforts to increase to a figure desired by the Company the production of coal from the Company's mechanized pits." The company thereupon obtained from the Full Court of the Supreme Court of Western Australia an order that the aforesaid order of the Court of Arbitration "be removed into the Supreme Court of Western Australia and that thereupon the said Order be quashed." It is from this order that the appellant now appeals by special leave. (at p449)
3. The Court of Arbitration made its order in the following circumstances. On 3rd December 1959 the respondent sent a circular to all its employees which concluded with the following statement: "I am addressing this letter to all employees of the Company so that you will be fully apprised of the position and so that you will understand that unless there is an immediate increase in production from the Company's mechanized pits to a figure which will cover the Company's orders the Company will be compelled by sheer economic necessity to close down its mines." From the body of the circular it appears that the company's statement of the position so referred to was that, notwithstanding ample capacity, the output from the company's mechanized pits was insufficient to enable it to fulfil its contract to supply government departments with twenty-five thousand tons of deep mine coal per fortnight; that, because of the low output, costs exceeded returns; and that, by reason of competition from fuel oil, the coal industry was facing a crisis so that its survival depended upon achieving a considerable reduction in costs through co-operation between employees and management. After this notice had been circulated, there were reports, of which the appellant could obtain neither confirmation nor denial, that men were to be dismissed on 11th December 1959. Such dismissals, the union contended, would contribute to the occurrence of a lock-out. (at p450)
4. It seems clear to me that the Court made its order upon the footing that the apprehended dismissals would contribute to a lock-out and that in doing so it considered, upon sufficient grounds, that any dismissals that occurred would be made with a view to enforcing compliance with the demands for higher production made in the circular. The Full Court seems to have decided that there was no foundation for such a conclusion. The Chief Justice said: "The first question is whether the proposed action of the Company could conceivably be construed as a threat to lock out its employees. It does not bear this construction. A mere announcement of intention to put employees off because the works are unprofitable is not within the intendment of the Act. To hold that the Company cannot do so is to deny it the economic freedom to go into liquidation or cease production when its operations become unprofitable." Jackson S.P.J. said: "There is no suggestion that any contemplated dismissals were to be made 'with a view' to any of the matters contained in the definition of 'lock-out.' Accordingly the foundation for the making of any order under s. 137 did not exist, and in making an order, the Arbitration Court exceeded its jurisdiction." Virtue J. said: "I share my brethren's inability to find any evidence which would justify a conclusion that anything had occurred, or could be expected to occur, which was reasonably likely to cause, contribute to or hasten the occurrence of a lock-out. This was the admitted basis on which the Court of Arbitration assumed jurisdiction to make the order, and in my view, accordingly, the order should not have been made." (at p450)
5. Although I do not doubt that to close down the mines to avoid loss would not of itself constitute a lock-out, it appears to me that what occurred was open to the construction that dismissals on 11th December would not be a step in closing down the mines but would reinforce the urgency of the plea or demand made in the circular for increased production to avoid closing down the mines. It is obvious from the circular itself that what the respondent wanted was increased production to avoid the need to close down the mines, and it is hardly to be thought that dismissals a week later would be part of the process of closing down the mines. I am of opinion, therefore, that it was clearly open to the Court of Arbitration to consider that dismissals on 11th December would constitute or contribute to a lock-out and it was, therefore, within its power to restrain such dismissals. The difficulty that I see is that the order which the Court of Arbitration made went further, and ultimately it was because the Full Court considered that the order that was made was so wide that it forbade dismissals that could not amount to a lock-out that it quashed the order. (at p451)
6. I agree that as the order forbade any dismissals because the workers failed to increase production to the level desired by the company, it went beyond forbidding dismissals that could have anything to do with a lock-out. It covered the case of the dismissal of all employees as part of the permanent closing down of the mines, and this could have nothing to do with a lock-out because the element of enforcing demands upon the workers would inevitably be entirely lacking. Two explanations of why the order went as far as it did were suggested. The first is that the Court misunderstood the definition of "lock-out" and that in its misunderstanding it framed its order so widely as to prevent dismissals that could not amount to a lock-out, as properly understood. The other is that while understanding the meaning of the definition of "lock-out," the Court of Arbitration thought it proper to forbid a wider category of dismissals than those which might cause, contribute to or hasten the occurrence of a lock-out and did so as a precautionary measure, either without observing that the only order which the section authorized was one to avoid the result of acts which would cause, contribute to or hasten a lock-out, or without appreciating that the acts forbidden included those that could not have that result. Whatever the explanation, however, it seems to me that the Court of Arbitration, in making the order that it did, went further than the section upon its proper construction entitled it to go. There was, therefore, error of law, as the Full Court decided. (at p451)
7. My conclusion that there was error of law on the part of the Court of Arbitration does not, however, involve the further conclusion that the Court exceeded its jurisdiction. It is always a question of construction and it is sometimes, as here, a difficult question whether the authority of a Court includes the power to decide whether the prescribed conditions for the making of an order have been fulfilled, or whether there is power to make an order only when those conditions have, as a matter of law, been fulfilled. My reading of s. 137 is that it authorizes the making of an order when it appears to the Court reasonably likely that acts will have a stipulated result, notwithstanding that it may be established in a superior court that upon a correct view of the law that result is one that could not occur. The words "where it appears reasonably likely to the Court" seem to me to govern all that follows and to commit to the Court a determination of each of the matters enumerated in considering whether or not it will make an order. In consequence, to show that the Court here made a mistake of law is not of itself sufficient to show that the order which followed that error was made without jurisdiction. (at p452)
8. In an attempt to show that if the Court misconstrued s. 137, the order dependent upon that error was made in excess of jurisdiction, great reliance was placed upon the decision of this Court in R. v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407 where it was decided that an order made by an Industrial Authority altering rates of remuneration was made without jurisdiction because it was only by misconstruing the word "anomalous" that the Authority became satisfied that the existing rates of pay were anomalous. Latham C.J. said: "There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act - it is a condition of jurisdiction" (1944) 69 CLR, at pp 429, 430 . After referring to a number of authorities, including Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust (1937) AC 898 , the Chief Justice said: "It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form" (1944) 69 CLR, at p 432 . Speaking of the task of the Court dealing with a challenge to jurisdiction, the Chief Justice said: "It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed" (4). Starke J. said: "The Industrial Authority must be satisfied that the rates of remuneration are anomalous. But he must be so satisfied upon a proper construction of that regulation and not upon his own arbitrary, capricious and mistaken opinion of its meaning" (1944) 69 CLR, at p 436 . Williams J., with whom Rich J. agreed, said: "It appears to me that Connell, whose good faith is not challenged, adopted a wrong view of the meaning of anomaly in reg. 17 (1) (b), and that, if he had adopted its true meaning, there was no evidence on which he could have been satisfied that an anomaly existed. He therefore adopted a wrong and inadmissible test and acted beyond his powers, so that clauses 1 and 2 of the award are void and unenforceable (1944) 69 CLR, at p 456 . The distinction that I draw between that case and this is that there the grant of power was construed as not extending to the formation of an unchallengeable opinion unless and until a correct interpretation had been put upon the word "anomalous," whereas here, as I construe s. 137, the matter upon which the Court must itself form an opinion includes the meaning of the word "lock-out." In like fashion, it seems to me that the decision of the Privy Council in Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust (1937) AC 898 is to be distinguished. In this case it cannot be said that the Court of Arbitration did not form an opinion upon the matters, including the possibility of a lock-out, which had to appear to it to be "reasonably likely"; the most that can be said is that it formed a wrong opinion. Here, as in cases such as Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section (1953) 89 CLR 636 and R. v. Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service [1951] HCA 1; (1951) 82 CLR 177 , the construction of the provision in question is a matter within the jurisdiction of the tribunal to which power is committed. In the former case, the joint judgment contains this passage (1953) 89 CLR, at pp 647, 648 : "The proceeding before us is not an appeal, and no appeal lies to this Court in respect of the order made by the Arbitration Court. The proceeding is an application for a writ of prohibition, and 'the law is well settled that superior Courts will not interfere by way of prohibition with the decisions of inferior Courts of limited jurisdiction unless want of jurisdiction is clearly established' - per O'Connor J. in Amalgamated Society of Carpenters and Joiners v. Haberfield Pty. Ltd. [1907] HCA 37; (1907) 5 CLR 33, at p 49 . . . There was a proceeding regularly before it (the Arbitration Court), an application for relief which it was authorized by the Act to entertain. In the course of entertaining that application, it had of necessity to consider the question of the construction and effect of s. 96M (6). The determination of that question was a matter within its jurisdiction, and, where the remedy sought is prohibition, it is not to the point to say that it determined that question wrongly. There may or may not have been 'miscarriage in the course of the inquiry.' There was 'jurisdiction to enter upon the inquiry.' Cf. generally Parisienne Basket Shoes Pty. Ltd. v. Whyte [1938] HCA 7; (1938) 59 CLR 369 ". (at p454)
9. In any event, I consider that, even if there were an excess of jurisdiction, the proceedings of the Court of Arbitration and its order are protected by s. 108 of the Industrial Arbitration Act, which provides that "proceedings in the Court . . . shall not be impeached . . . nor shall the same be removable to any Court by certiorari or otherwise; and no . . . order, or proceeding of the Court . . . shall be liable to be challenged . . . or called in question by any Court of judicature on any account whatsoever." There is a strong judicial tradition against regarding sections protecting inferior courts and tribunals from control by superior courts as extending to control to prevent excesses of jurisdiction by means of the prerogative writs. So it is that it has for a long time been accepted that certiorari and prohibition must be taken away explicitly and not be general words: R. v. Nat Bell Liquors Ltd. (1922) 2 AC 128, at pp 159, 160, 162 . Section 108, however, in express terms protects proceedings in the Court of Arbitration from removal and quashing by certiorari, and it is certiorari that the Supreme Court employed to remove and quash the order made by the Court of Arbitration. Furthermore, although not named, there can be no doubt from the words used that the section takes away prohibition as well as certiorari. This construction of s. 108 does not, however, conclude the matter, because it is well established that an inferior court which manifestly disregards limits upon its jurisdiction and undertakes to do something that is altogether outside the sphere of the jurisdiction conferred upon it, is subject to control by means of the prerogative writs, notwithstanding a protective section which, according to its terms and taken by itself, would deny any such control: The Colonial Bank of Australasia v. Willan (1874) LR 5 PC 417, at p 442 . The basis of this rule is that two conflicting provisions of the legislature, one imposing obviously fundamental restrictions upon an inferior court or tribunal and the other protecting the proceedings of that inferior court or tribunal from examination, have, as a matter of construction, to be reconciled. The position that has been reached in this Court was expressed by Dixon J. in R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 in a passage relating to sections of this character which has come to be regarded as classical: "They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body" (1945) 70 CLR, at p 615 . It seems to me that the decision of the Court of Arbitration here is clearly within this proposition, and because this is so, s. 108 protects the order that was made from being challenged or called into question either by certiorari or by prohibition. (at p455)
10. For the foregoing reasons, I think this appeal should be allowed. (at p455)
ORDER
Appeal allowed with costs. Order of the Supreme Court discharged. In lieu thereof order that the order nisi for a writ of prohibition and a writ of certiorari be discharged and that the abovenamed respondents The Amalgamated Collieries of W. A. Ltd., pay to the abovenamed appellants The Coal Miners' Industrial Union of Workers' of Western Australia their costs of the order nisi in the Supreme Court.
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