HIGH COURT OF AUSTRALIA

                                         Federated Engine Drivers & Fire

                                                           Vs.

                                         Broken Hill Proprietary Co.Ltd.

                                 (Griffith C.J., Barton, Isaacs and Higgins JJ.)

                                                    7th April 1913

Griffith C.J.

This Court may permit anyone to appear before it. But, if the secretary of the association has the
right under sec. 27 of the Commonwealth Conciliation and Arbitration Act 1904 to appear before
this Court as representing the association, Mr. Duffy and Mr. Mitchell cannot appear without his
consent. This would be an absurd result. This Court has determined that this Court is a distinct
Court altogether from the Arbitration Court. In this Court we proceed according to the practice as
laid down in the Rules of Court. But every Court can allow anyone to appear, and we allow the
secretary, not as of right, to appear in this case.

Barton J.

It is entirely in our discretion to say whether we will hear the secretary or not. The Court does not
ordinarily allow parties to appear except by counsel or in person. If the secretary is not the
association appearing in person, he has no right to appear. It is not for me to say in what way the
association could appear in person. It could appear by counsel, and that would be in accordance with
the usual practice. A party not appearing in person or by counsel can only appear in any other way
by special permission of the Court. I think such permission may be given in this instance without
impropriety.

Isaacs J.

I also think that the secretary has not an absolute right to appear for the association in this Court.
Sec. 31 of the Commonwealth Conciliation and Arbitration Act 1904 allows the President of the
Court to state a case in writing for the opinion of the High Court. There are two different Courts;
and although the President must be appointed from amongst the Justices of the High Court,
Parliament might, in its wisdom, at any time remove that condition, and then the matter would be so
clear as to be beyond argument: the President, not being then a Justice of the High Court, would
state a case for the opinion of the High Court, and that case would, of course, be determinable
according to the practice of the High Court, and sec. 27 of the Commonwealth Conciliation and
Arbitration Act 1904, which relates to representation before the Court of Conciliation and
Arbitration, would have no reference, nor has it, in my opinion, any reference, to appearance before
this Court. As far as the right of appearance is concerned, besides the litigant himself Parliament has
by secs. 49 and 50 of the Judiciary Act 1903 said who shall have the right to practise in a federal
Court, namely, certain barristers and solicitors and the Crown Solicitor for the Commonwealth.
Therefore I agree with what has been said, that there is no right in the secretary to the association to
appear on behalf of the association in this Court.

But, on the other hand, sec. 27 has, in my opinion, a very important bearing in this way: that it is a
recognition by Parliament that it is a very convenient and proper thing for the secretary to represent
an organization in the Arbitration Court, and, on an application being made in this Court by such
representative to be heard, it is a weighty consideration for this Court in the determining whether it
will or will not accede to the application. In this case it seems to me a very proper thing to accede to
the application, and, while there is no right to appear, I quite agree that the secretary should be
permitted to appear in this case.

Higgins J.

I should like to reserve my opinion as to the right of the secretary to appear in this Court; but, of
course, no one can contend that sec. 27 gives him the right. A litigant is under no obligation to
employ counsel; the organization cannot appear before the Court physically; and to say that a duly
authorized secretary cannot put its views before the Court seems to involve a denial of justice to an
impecunious organization. In this case the rules of the association provide that "The General
Secretary shall be the officer to sue and be sued on behalf of this association."

I am not prepared, however, to dissent from my brethren on this point, especially as they see their
way to allow, in this case, the secretary to express the views of the organization without expense.

Questions answered as follows:? 1. Yes, on the basis that the plaint first validly came into existence
on 24th November 1911. 2. Yes, so far as the Corporation is engaged in trading operations. 3. No.

Solicitors, for the respondents, Derham & Derham.

Solicitor, for the Commonwealth, Gordon H. Castle, Crown Solicitor for the Commonwealth.

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