Between: Regina
And: HICKMAN
Ex Parte FOX AND CLINTON

Judges: Latham CJ
Rich J
Starke J
Dixon J

McTiernan J

Subject References:
Defence
National security
Coal mining industry
Ambit of jurisdiction of Local Reference Board

Legislative References:
Constitution (Cth) - s 75(v)
National Security (Coal Mining Industry Employment) Regulations 1941 SR No 25 - r 2; r 4; r 14(1)(a); r 17

SYDNEY

Judgment by:
McTIERNAN J

Ex parte Fox and Another.-This application for a writ of prohibition is made under s. 75 of the Constitution. The writ sought is to prohibit the respondents and each of them from further proceeding upon an order or award of a Local Reference Board constituted under the National Security (Coal Mining Industry Employment) Regulations. The respondents include the members of the Board and an association of employees upon whose application the order or award was made.

The writ of prohibition is a "preventive" rather than a "corrective" remedy and it is not directed against parties, but to the court itself: See The Practice of the Crown Office, by Short & Mellor, 2nd ed. (1908), pp. 70, 71. The members of the Board are officers of the Commonwealth and in making the order or award the subject of this application they purported to exercise the quasi-judicial powers vested in a Local Reference Board by the above Regulations. Accordingly, under s. 75 of the Constitution prohibition lies against the members of the Board.

In R. v Hibble, ^[F34] Knox C.J. and Gavan Duffy J. said: "In our opinion, so long, at any rate, as a judgment or order made without jurisdiction remains in force so as to impose liabilities upon an individual, prohibition will lie to correct the excess of jurisdiction." An order or award of a Local Reference Board is made binding by regs. 9 and 15. It would follow from the above-mentioned principle that prohibition lies to prohibit the members of the Board from further proceeding upon the order or award now in question if it were made without jurisdiction.

Regulation 17, however, provides that a decision of a Local Reference Board shall not be subject to prohibition in any court on any account whatever. This regulation also forbids such other remedies as appeal, mandamus or injunction. It would not, of course, bar the remedy of prohibition under s. 75 of the Constitution in the case where a tribunal made any award or order which travelled outside the constitutional powers of the Commonwealth. Further, it is in accordance with the interpretation which the Court has placed upon statutory provisions similar to reg. 17 to say that, if upon the true construction of the present Regulations they confer powers upon a Local Reference Board to make an award or order in respect of the coal mining industry and no other industry, reg. 17 is not a bar to an application for prohibition in a case where such Board has made an award or order which is within the constitutional powers of the Commonwealth but prescribes rates of pay or conditions of employment to be observed in an industry other than coal mining. It is clear that the intention of the Regulations is that the Central Reference Board or any Local Reference Board should confine the exercise of the powers which the Regulations vest in it to the coal mining industry.

The next question is whether under the Regulations it is part of the jurisdiction of a Local Reference Board to decide whether or not a branch of employment in respect of which the Board is asked to make an award, order or determination is within the coal mining industry. If the decision of that question is part of the jurisdiction vested in the Board, its decision thereon cannot be reviewed by way of an application for a writ of prohibition directed to the Board. I think that the decision of the question whether this preliminary fact exists is not entrusted by the Regulations to the Board. The Board may inquire into it but its decision whether the fact exists or not is not binding on the parties: Compare Amalgamated Society of Carpenters and Joiners, Australian District v Haberfield Pty Ltd. ^[F35] It is a question for this Court to decide in the present proceedings whether the employment, which the order or award of the Local Reference Board purports to draw within the operation of the Federal awards, mentioned in the Board's order or award, is in fact employment within the coal mining industry. There is no criterion laid down by the Regulations for determining that question. The framers of the Regulations may have intended that the expression "coal mining industry" should include any employment which according to business usage was understood to be part of that industry: or they may have intended it to cover only such employment as was in fact directly connected with the winning of coal. There is no evidence which would justify a finding that according to business usage the applicants' motor lorry drivers are employed in the coal mining industry; and, after examining the evidence showing the relation between their employment and the winning of coal, the conclusion which I reach is that their employment is in connection with a service separate from the industry of winning coal.

The order or award which is the subject of this application is therefore beyond the jurisdiction of this Local Reference Board. The order nisi should be made absolute. It has become the established practice of this Court in a case such as the present one to order a party who appears to oppose an order nisi for prohibition and fails, to pay costs to the successful applicant.

I think the order should be made absolute with costs against the respondent association.

Ex parte Clinton and Others.-This case is, in my opinion, indistinguishable from R. v Hickman and Others; Ex parte Fox and Another. For the reasons which I have given in that case and which are applicable to the present case, I think that the order nisi should be made absolute with costs against the respondent association.