R v Hickman; Ex Parte Fox and Clinton

70 CLR 598

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(Judgment by: STARKE J)

Between: Regina
And: HICKMAN
Ex Parte FOX AND CLINTON

Court:

Judges: Latham CJ
Rich J

Starke JDixon 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

Hearing date: 7 August 1945
Judgment date: 5 September 1945

SYDNEY

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Judgment by:
STARKE J

Ex parte Fox and Another.-Ex parte Clinton and Others.-Rules nisi for prohibition calling upon the members of a Local Reference Board constituted under the National Security (Coal Mining Industry Employment) Regulations and others to show cause why writs of prohibition should not issue prohibiting them from proceeding further upon orders of the Board made in Fox's Case on 1st May 1945 deciding that S. and M. Fox are engaged in the coal mining industry and that they are required, subject to the awards, to grant to their employees engaged and employed as lorry drivers the minimum rate of wages and the working conditions prescribed by awards known as the Mechanics (Coal Mining Industry) Awards in force from time to time, and in Clinton's Case on the 10th May 1945, deciding that the partnership firm Clinton's Coal Carrying Co are engaged in the coal mining industry, and that they and each member of the partnership are required, subject to the awards, to grant to each of their employees who are engaged and employed as lorry drivers carting coal the minimum rate of wages and working conditions prescribed for lorry drivers by the awards already mentioned.

The rules are founded upon s. 75 of the Constitution (R. v Drake-Brockman; Ex parte National Oil Pty Ltd, ^[F5] and prohibition goes wherever officers of the Commonwealth, having legal authority to determine questions affecting the right of subjects and having the duty to act judicially, act in excess of their legal authority (R. v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920), Ltd, ^[F6] at p. 205; R. v Powell; Ex parte Marquis of Camden, ^[F7] at p. 649; R. v Hibble; Ex parte Broken Hill Pty Co Ltd ^[F8] ).

The National Security (Coal Mining Industry Employment) Regulations provide that the Regulations shall apply to industrial matters in relation to the coal mining industry, and by reg. 14 a Local Reference Board has power to settle disputes as to any local matters likely to affect the amicable relation of employers and employees in the coal mining industry.

A Local Reference Board made the orders already mentioned pursuant to these Regulations. But it is plain that the Board could not give itself authority over industrial matters having no relation to the coal mining industry. The Board has authority to settle disputes in the coal mining industry. Jurisdictional facts are examinable in this Court on proceedings in prohibition, for instance the existence of facts necessary to give the Board authority to exercise the functions it has assumed (R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Broken Hill Pty Co Ltd, ^[F9] at pp. 453, 454.).

Now the Board has decided that the prosecutors are engaged in the coal mining industry and are required to grant to their employees engaged as lorry drivers carting coal the minimum rate of wages prescribed by the Mechanics (Coal Mining Industry) Awards. But the question whether the prosecutors are engaged in the coal mining industry, which is not a technical expression, but a popular description, without any definite or clear limits (R. v Drake-Brockman; Ex parte National Oil Pty Ltd ^[F10] ), is, in truth, one of fact, depending in the main upon industrial usages and practices upon which the evidence in this case is very meagre. The prosecutors, S. & M. Fox, were in fact carriers operating lorries for the cartage of coal, coke, firewood, timber and other materials. Coal was carted for the colliery proprietor from the Wollondilly Colliery to the rail head or to customers in Sydney under contract at agreed rates. It is clear, I think, on these facts that S. & M. Fox were not engaged in any way whatever in the coal mining industry, but in the carrying or transport industry. Consequently the order or decision of the Board in relation to S. & M. Fox was made without the necessary authority and is bad.

The prosecutors, Clinton Coal Carrying Co , were also a carrying company operating lorries for the cartage of coal and other commodities.

The daily output of the Nattai Bulli Colliery was carted for the colliery proprietor from the colliery under contract at agreed rates some twenty-three miles to the depot of the carrying company at Narellan, where the bulk of it appears to have been screened by the carrying company, and a charge made for the services thus rendered, and thence the coal was loaded on to trucks, or otherwise delivered as directed by the colliery company.

But these screening operations, though normally carried out in the coal mining industry, do not alter the character of the prosecutors' industry, which is carrying or transporting commodities, and attach the prosecutors to the coal mining industry.

The order or decision of the Board in relation to the Clinton Carrying Co is also without authority and bad.

The rules nisi should be made absolute.