HIGH COURT OF AUSTRALIA

                                        Waterside Workers Fedn. of Aus.

                                                           Vs.

                                           Federal Commr. Of Taxation

                            (Knox C.J., Isaacs, Gavan Duffy, Rich and Starke JJ.)

                                                    6 August 1924

Knox C.J. and Gavan Duffy J.

The Waterside Workers' Federation, an organization registered under the Commonwealth
Conciliation and Arbitration Act 1904-1921, applied, by motion on notice, for an injunction to
restrain Gilchrist, Watt and Sanderson Ltd. from committing breaches of an award (No. 77 of 1923)
of the Commonwealth Court of Conciliation and Arbitration. After argument had been heard on that
application, Gilchrist, Watt and Sanderson Ltd. obtained an order nisi for a writ of prohibition to
restrain further proceedings on the same award, or alternatively for a writ of certiorari to bring up
the award to be quashed, and subsequently moved to have the order nisi made absolute.

In the view which we take, the relevant facts were as follows, namely:?On 21st December 1922 the
Federation requested certain employers of wharf labourers, including Gilchrist. Watt and Sanderson
Ltd. (hereinafter referred to as the Company), to agree "that members of the Federation shall have
preference of employment over non-members," at Sydney and other places. The employers having
refused to agree and a compulsory conference having been held without result, the President
referred the dispute into Court under sec. 19 (d) of the Act. The dispute referred by the order of the
President was?so far as is relevant to this application?whether the members of the Federation should
have preference of employment over non-members. The Company was made a respondent to the
proceedings in the Arbitration Court and is one of the respondents named in schedule A to the
award hereinafter mentioned.

After hearing evidence the President on 24th December 1923 made an award, the material portions
of which are as follows, namely:?"I award, order, and prescribe?1. (a) The respondents whose
names are set out in schedule A to this award shall?subject to the provisions of sec. 81A (1) of the
Commonwealth Conciliation and Arbitration Act, which prevents this Court from making any award
or order which shall operate to prevent the employment of returned soldiers or sailors?give
preference of employment over all persons but returned soldiers and sailors?other things being
equal?to returned soldiers and sailors who are members of the Waterside Workers' Federation of
Australia, when requiring wharf labourers' work to be done in Sydney, subject to the following
conditions: (b) The preference of employment referred to shall be?Over all other employees except
returned soldiers and/or sailors as no order can legally be made by this Court authorizing
discrimination by the respondent against any returned soldier or sailor whether a member of the
Waterside Workers' Federation or not."

The validity of this award was challenged both on the motion for injunction and on the application
for prohibition, on a number of grounds. For the reasons which we are about to state in dealing with
the application for prohibition, we think the Court of Arbitration had no power to make the award in
question, and the award being, in our opinion, invalid, we think it would be improper for this Court
to exercise the discretionary power conferred by sec. 48 of the Act in order to enforce obedience to
its prescriptions.

Turning to the application for prohibition, the first question to be considered is whether at any
material time a dispute existed as to the preferring of returned soldiers generally or of returned
soldiers members of the Federation over other members of the Federation or over other persons
generally. It is admitted that the only relevant dispute in existence between the parties was that
constituted by the demand for preference of employment to members of the Federation over non-
members and the refusal of that demand, and it was this dispute which was referred to the Court. It
is, we think, obvious that a dispute as to whether returned soldiers should be given preference over
persons who were not returned soldiers or whether some members of the Federation should be given
preference over other members would not be the same as, or even included in, a dispute whether
preference should be given to members of the Federation over non-members. The difference
between the preference demanded and that awarded can be demonstrated by an illustration. Assume
that A is a member of the Federation who is a returned soldier, B a member of the Federation who is
not a returned soldier or sailor and C a returned soldier who is not a member of the Federation.
Suppose two vacancies exist for which A, B and C apply. The dispute which existed and was
referred was whether both A and B should have preference over C; the award is that A shall have
preference over B, the only reference to C being that he is a person who is protected by Act of
Parliament from being postponed to either A or B. This is an award, not of the preference sought or
a part of it, but of an essentially different preference, which, in our opinion, was not within the
ambit of the dispute which existed and was referred to the Court or substantially involved in or
connected with it. It is, of course, well settled that the jurisdiction of the Court of Arbitration to
make an award can only be exercised in respect of disputes which exist and of which it has
cognizance. It follows that clauses 1 (a) and 1 (b) of the award are beyond the jurisdiction of the
Court.

But there is another ground on which the award is, in our opinion, invalid, namely, that the Court of
Arbitration has no power to award, as it has done in this case, preference of employment among
members of an organization; that is, preference of some members over other members. The power
to award preference is conferred by sec. 40 of the Act and, in our opinion, by that section alone.
Even if power to award preference would exist under the general jurisdiction of the Court the power
is, we think, limited by the provisions of sec. 40. The section clearly defines the classes between
which preference may be awarded. The class that may be given the right to preference consists of
"members of organizations," and the class over which preference may be given consists of "other
persons ... offering or desiring service or employment at the same time." The discrimen prescribed is
membership of the organization; the contrast is between members of the organization and other
persons, and in this context "other persons" must, in our opinion, mean persons not members of the
organization.

But it was argued that, even if the award were made without jurisdiction or in excess of jurisdiction,
prohibition would not issue to restrain proceedings on it. This argument was rested on two grounds,
namely: (1) That when an award has been made nothing remained to be done by the Court of
Arbitration, and that the decision of the House of Lords in In re Clifford and O'Sullivan[1]
established that in such a case prohibition would not lie, and (2) that sec. 31 (1) of the Arbitration
Act deprived this Court of power to issue prohibition after an award had been made.
1. The right to issue prohibition to the Arbitration Court after award was asserted by this Court in
the Broken Hill Case[2] , the Builders' Labourers' Case[3] and the Tramways Case [No. 1][4] . In
Hibble's Case [No. 1][5] prohibition was issued to restrain proceedings on an award of a special
tribunal constituted under the Industrial Peace Act. The position of the special tribunal in that case
was not different in substance from that of the Court of Arbitration. It was said that these decisions
were in conflict with the decision of the House of Lords in In re Clifford and O'Sullivan[6] , which
was binding on this Court. The argument was founded on the following passage in the speech of
Viscount Cave[7] : "A further difficulty is caused to the appellants by the fact that the officers
constituting the so-called military Court have long since completed their investigation and reported
to the commanding officer, so that nothing remains to be done by them, and a writ of prohibition
directed to them would be of no avail." We think that this statement cannot be regarded as
inconsistent with the view which we expressed in Hibble's Case [No. 1][8] . In the case before the
House of Lords the so-called tribunal against which prohibition was sought was not a Court or
judicial tribunal and did not claim to have any statutory or common law authority to act. It had no
element of permanency, consisting as it did of a number of military officers entrusted by the
commanding officer with the duty of inquiring into certain alleged breaches of the commands
contained in a proclamation, and of advising him as to the manner in which he should deal with the
offences (see per Viscount Cave[9] ). Having reported to the commanding officer, the officers
comprising the "tribunal" were definitely dispersed (per Lord Sumner[10] ), and the so-called
"tribunal," if it ever existed, ceased to exist. There is no analogy whatever between such a "tribunal"
and a permanent institution such as the Commonwealth Court of Conciliation and Arbitration, or
between the advice given by the so-called military Court to the commanding officer and an award of
the Court of Arbitration conferring rights and imposing obligations which can be enforced by
proceedings in recognized Courts of law. Nor was there, in that case, any power in the "tribunal" to
reconsider its decision or its sentence, while the Court of Arbitration is expressly authorized by sec.
38 (o) to vary its awards and to reopen any question. Moreover, the real ground of the decision of
the House of Lords was that the officers who were said to constitute the tribunal "did not purport to
act as a Court in any legal sense" (per Viscount Cave[11] ). That this was the real ground of the
decision, appears clearly from the speech of Lord Shaw[12] . The only express reference to the
objection that the application was too late, except that made by Viscount Cave, is contained in the
speech of Lord Sumner, who apparently attached some weight to the consideration that the
"tribunal" [13] .

In these circumstances we think we are at liberty, notwithstanding the decision in In re Clifford and
O'Sullivan[14] , to adhere to the view we expressed in Hibble's Case [No. 1][15] .

2. On the argument based on sec. 31 (1), it is sufficient to say that, inasmuch as the award purports
to deal with matters which were not in fact in dispute, the question is, in our opinion, concluded by
the decision in the Builders' Labourers' Case[16] and the Tramways Case [No. 1][17] .

In our opinion the order nisi for prohibition against proceeding on the award should be made
absolute.

Isaacs and Rich JJ.

R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Gilchrist, Watt and Sanderson
Ltd. ? Two orders nisi, one for prohibition and the other for certiorari, in respect of two Federal
awards or alleged awards.?Besides the problems presented by the rival arguments, another question
arises. It is perhaps novel, but attended with great consequences, not merely to the thousands of
individuals immediately concerned in the awards under consideration, but also possibly to hundreds
of thousands who base their daily life on the supposed stability of other awards. If the recorded
judicial determinations of four of the present members of this Court as hereinafter quoted?that of an
absolute majority of the Court?are to govern the decision, then the respondents succeed and the
award of preference to returned soldiers and sailors will stand, even if by inadvertence or even by
misconstruing some of the difficult statutory provisions, the directions of the Legislature in the
Conciliation and Arbitration Act have not been strictly followed. We are of opinion that the
preference award should stand and the orders nisi should be discharged. Though the grounds upon
which both orders nisi are supported are identical, it is desirable in the circumstances of this case to
deal with each process separately.

Before doing so, it is necessary to mention certain facts. One is that with one exception all the
grounds relied on were raised by way of objection to an injunction motion recently made by the
Waterside Workers' Federation against the present prosecutor under sec. 48 of the Commonwealth
Conciliation and Arbitration Act, and now standing for judgment. During the course of the case one
of the grounds now raised was definitely ruled upon. This will be detailed later. The one exception
referred to is the contention that the Constitution has been incurably infringed because, so it is said,
preference has been given by the President of the Arbitration Court to returned soldiers and sailors
who are members of the organization over those members of the organization who are not returned
soldiers or sailors, there having been no dispute between those classes of members as to preference
really inter familiam.

Another circumstance which should be mentioned at once, is that the present applications to
annihilate the awards or alleged awards are made on the relation of only one out of forty employers
parties to them, none of the remaining thirty-nine being party to the present applications, though for
all that appears those parties, or some of them at least, may be opposed to what, in the language of
the learned President of the Arbitration Court, "would irritate an industrial sore" [18] . These
proceedings being to destroy the awards in rem, we are of opinion that they cannot succeed in the
absence of parties directly interested. That is elementary justice, and, in our view, unless the
necessary parties are added, the defect should end the matter at the threshold. If it does not, then an
utter stranger could proceed in the same way, without notice to any of the parties interested. The
Court should, even were this the sole reason, refuse to grant the application.

It is, however, necessary for us to proceed further. That there was a very serious "industrial sore" is
beyond question. That it would be irritated anew, thereby imperilling the continuance of necessary
services to the community if these applications were acceded to, is, on the very surface, extremely
likely. The main award, dated 23rd October 1922, was by the Arbitration Court declared to operate
only until 30th September 1923. It is, however, still current (Waterside Workers' Federation of
Australia v. Commonwealth Steamship Owners' Association[19] ), not, however, by force of
arbitration, but solely by force of direct legislation. This is an important circumstance in determining
how far the arbitral function is ever of a judicial or a quasi-legislative nature. For it cannot be
imagined that the Commonwealth Parliament assumed, or that this Court held that Parliament had
assumed, jurisdiction by force of its direct will to extend the force of a "judicial order" beyond the
period fixed by the tribunal. Nor can one imagine a Court entertaining an application for prohibition
or certiorari directed to the arbitration tribunal in respect of an award which has passed the utmost
period fixed by that tribunal and which henceforth exists and operates, as the main award does at
this moment, by the mere will and direction of the Commonwealth Parliament. Such remedies are
unheard of to control Parliament.
But, if that be true, it indicates that Parliament regards an award simply as a "factum" which, unlike
a judicial decree, of itself imposes no obligation and affects no rights. Obligations are imposed and
rights are affected by the Act operating on the factum of the award. And this is a decisive
consideration. It shows that an "industrial award" is, in its essential nature, not a judicial decision,
but a step in legislation. Reference will be made to this later. The main award, however, though
settling wages, hours and conditions of labour, including the maximum loads to be lifted by wharf
labourers, settled those matters as between the organization and the forty respondents and between
them only. But by reason of the system adopted by the shipowners it had become, at least to a large
extent, a dead letter. This was so because, by means of what was called "Bureau" registration, more
particularly dealt with in the injunction application, a system of discrimination was pursued to the
disadvantage of members of the Federation. To prevent this, and manifestly to safeguard the very
existence of the Federation, the learned President, by award No. 77 of 1923, prescribed: (1)
Preference to returned soldiers and sailors members of the union?other things being equal?except as
against other returned soldiers and sailors (sec. 81A of the Act), and (2) non-discrimination against
members of the union who were not returned soldiers and sailors, except in favour of returned
soldiers and sailors.

These facts are referred to for two reasons?the first because we cannot assume that all the employers
parties to the main award desire to revive the old "industrial sore," and the second because they are
material as affecting the discretion of this Court upon the present occasion.

(1) Prohibition.?Two facts are incontestable, and are desirably mentioned at once:?(a) The awards
or alleged awards now challenged are complete, and nothing is needed or possible to perfect them
according to their present directions. They are as formal as they can ever be. Unless and until some
substantive application is made to vary or in some way alter them, there is no authority in the Court
of Conciliation and Arbitration to do anything with regard to them (sec. 39 of the Act). (b) The
learned President, as a formal party to these proceedings, has, in courtesy to this Court, by counsel,
informed the Court that there has been no application to vary or interpret either award, and that he is
not doing and has no present intention of doing anything in relation to them. Very properly learned
counsel for the relators relied upon Hibble's Case [No. 1][20] . In that case, the Court being equally
divided, it was held by force of statutory majority that prohibition lies to a tribunal even though that
tribunal is functus officio.

Learned counsel for the respondent Federation advanced two reasons, independent of the
substantive law of the awards, why prohibition should be refused. They were: (1) the arbitral
tribunal is functus officio, and (2) the functions of that tribunal are not of a judicial nature having
regard to the Australian Constitution.

As to the first reason, having regard to the constitution of the Court that decided Hibble's Case [No.
1][21] and of the Court that is called upon to decide this, no reconsideration of that fundamental
proposition would be profitable or proper, if it were not for a very material circumstance that has
happened since. Hibble's Case [No. 1] was determined in December 1920. But in the following July
four learned Lords out of five (the fifth expressing no opinion on the particular point) gave, in In re
Clifford and O'Sullivan[22] , a pronouncement upon that identical proposition which appears to us
so unmistakably clear and decisive that, but for a suggestion which was made to the contrary, we
should have done no more, so far as this point is concerned, than simply refer to the case. That
suggestion, however, being made, it is right, where so much is involved, to make very clear why we
hold the opinion stated. In re Clifford and O'Sullivan[23] . Viscount Cave L.C., at page 579, said: "It
is desirable to deal first with the preliminary objection" ; and down to the middle of page 582 his
Lordship considered that preliminary objection and ruled against it. Then the Lord Chancellor had
to deal with the appeal free from any preliminary objection. "The question arises," he said,
"whether, on the assumption that the appellants are right in their view of the facts and of the law
applicable to them," that is in assuming the sentence was utterly invalid and even though it
concerned life, "a writ of prohibition could have been granted." The learned Lord proceeded at once
to state that "the writ should only issue to" [24] "a Court having some jurisdiction," [25] "which it is
attempting to exceed." For convenience of consideration we have inserted the figures, because both
branches were dealt with separately. In the first place Lord Cave[26] "a Court having some
jurisdiction," and held that the broad doctrine of "a pretended Court" was not law. He also referred
to the opinion of Brett L.J. in R. v. Local Government Board[27] , and assumed it, without accepting
it. On this first branch the Lord Chancellor held that prohibition would not lie. But then he went
further and deliberately dealt with the second branch, that is, with the very point decided in Hibble's
Case [No. 1][28] [29] :?"A further difficulty is caused to the appellants by the fact that the officers
constituting the so-called military Court have long since completed their investigation and reported
to the commanding officer, so that nothing remains to be done by them, and a writ of prohibition
directed to them would be of no avail (see In re Poe[30] and Chabot v. Lord Morpeth[31] ). What
the appellants really desire is an order restraining" such officers "from confirming and carrying out
the sentences; and it is clear that as against these officers, who are in no sense the officers or agents
of the military Court, prohibition could not be granted." Some of the very authorities relied upon in
Hibble's Case [No. 1][32] in the minority opinion, notably Short and Mellor's Crown Practice, 2nd
ed., pp. 252-253, In re Poe and Chabot v. Lord Morpeth, were cited by the Lord Chancellor, whose
view as to the law coincided on this point precisely with that opinion. The Lord Chancellor's
opinion was shared by Lord Dunedin, Lord Atkinson and Lord Sumner. One sentence from the
judgment of Lord Sumner should be quoted, because it appears to us to be in definite accord with
the minority opinion in Hibble's Case [No. 1][33] : "True, judgment, though given, is not yet
executed, but the execution is not in the hands of these officers or of anyone acting under their
directions or authority." The contrary suggestion to which we alluded is that Lord Cave , and the
other learned Lords, intended to limit their observations as to "functus officio" to a body having no
legal jurisdiction whatever and therefore coming within his observations on the first branch of the
definition. The suggestion was founded on some words of Atkin L.J. in R. v. Electricity
Commissioners[34] . These words are: "I am satisfied that the observations of the Lord Chancellor
in that case were directed to the first point." One might in limine ask, seeing that Lord Cave's words
could not possibly have been directed to the preliminary point, what, in Lord Justice Atkin's view, is
it suggested was Lord Cave's first point and what was his second point? When the judgment of the
learned Lord Justice is examined, and his quoted words are read with what precedes and with what
follows them, neither from a legal nor from a literary aspect can the suggestion be maintained. His
Lordship was dealing with an argument which sought to exclude the Electricity Commissioners
from liability to prohibition on the ground that they were not a "Court," and on the ground that Lord
Cave's judgment in In re Clifford and O'Sullivan[35] "defines the scope of the writ of prohibition in
terms much more restricted than those of Brett L.J. in R. v. Local Government Board" [36] . It is
obviously to Lord Cave's observations on the judgment of Brett L.J. in relation to the first branch of
the definition that the quoted words of Atkin L.J. are directed. The immediately succeeding words
on page 206 are inconsistent with any other view. Other passages in the judgment of Atkin L.J. are
also inconsistent with the suggestion. For instance, at page 204 he says: "Prohibition restrains the
tribunal from proceeding further in excess of jurisdiction." At page 206 the Lord Justice refers to the
dissenting judgment of Phillimore L.J. (now Lord Phillimore), which deserves separate mention.
Atkin L.J. says further, in accord with that dissenting judgment: "If the proceedings establish that the
body complained of is exceeding its jurisdiction by entertaining matters" &c. On the same page he
says, with reference to In re Clifford and O'Sullivan, that the House of Lords held prohibition would
not lie (1) "because the so-called Courts were not claiming any legal authority other than the right to
put down force by force, and" (2) "because the so-called Courts were funct? officio." It may not be
out of place to note that the very foundation of prohibition is that it prevents judicial power being
usurped by force. Willes J., in Cox's Case[37] , says: "Any exercise, however fitting it may appear,
of jurisdiction not so authorized, is an usurpation of the prerogative, and a resort to force
unwarranted by law." That remedy, however, by prohibition for such force is only where its
jurisdiction is exceeded by some tribunal being a "Court," not necessarily in the strict sense but yet
armed with some royal curial authority. We cannot do the learned Lord Justice the wrong of
supposing he thought that for the first reason the so-called Courts were free from prohibition
whether they were funct? officio or not, and for the second reason, but peculiar to themselves, were
free provided they were funct? officio. Clearly "functus officio" applies only where the tribunal has,
or for the sake of argument is supposed to have, an "officium" but has discharged it. The second
reason is independent of the first. We have yet to quote Lord Phillimore's opinion in the Court of
Appeal in R. v. Board of Trade[38] . There he said, in words which have an important bearing on
two parts of this judgment: "But I should express my doubt whether, supposing the Light Railway
Commissioners to be a tribunal to which a writ of prohibition could appropriately issue, they were
shown to be at the time when the rules were applied for doing or about to do anything in excess of
their so-called jurisdiction."

These new events, particularly the judgment of the House of Lords, added to, if that be legally
possible, by the opinion of Phillimore L.J. and Atkin L.J., do not merely, in our opinion, leave us
free to act upon the view we expressed in Hibble's Case [No. 1][39] on the subject of prohibition in
relation to a tribunal functus officio as to the particular decision complained of. They really, though
not technically, control us. The law declared in In re Clifford and O'Sullivan[40] has in Great
Britain the effect of a statute. The same learned Lords sitting as the Judicial Committee would, of
course, enunciate the same law as they did sitting in the House of Lords. We, therefore, feel bound
to adhere to our former judgment on this point.

It was also suggested, though not vigorously, that the learned President was not functus officio qu
the awards or alleged awards in question because the Act enables the tribunal in certain cases to
vary or reopen or interrupt an award. But the law is clear that he must first be set in motion as "the
Court" by some method indicated in the Act, and even then it may be for the purpose of doing
something entirely within his admitted jurisdiction, or possibly for the purpose of striking out an
objectionable term. This is very plainly indicated in the judgment of Powers J. in Federated Gas
Employees' Industrial Union v. Metropolitan Gas Co.[41] , where the learned Justice points out that
"the old dispute is settled by the award," but that a variation may be made within the ambit of the
old dispute provided "a new dispute" arises. Obviously and necessarily that judgment connotes that
until "a new dispute" arises, within the ambit of the old dispute?in effect a recrudescence of some
part of the old dispute?the tribunal is functus officio. In any event the undeniable fact is that,
employing the words of Lord Phillimore, he is not "shown to be at the time when the rules were
applied for doing or about to do anything" in relation to those awards. By his counsel, as already
stated, he expressly informed the Court to the contrary. The law, sec. 39, says he is incapable of
taking any further step in relation to them except in circumstances that have not arisen. For reasons
which have been expressed at length in Hibble's Case [No. 1][42] , we have stated, and our brother
Higgins has stated, why the Arbitration Court in such a case is functus officio. Without repeating
them, we adhere to those reasons.

We must, however, direct special attention to one circumstance which is too often overlooked.
Observations of Justices of this Court, culled from former judgments, are sometimes quoted without
reference to the changes which statutes or later decisions have brought about. For instance, before
Alexander's Case[43] it was frequently said that prohibition to the Court of Conciliation and
Arbitration was appropriate even after an award where the Court was involved. But that was
because the Court was supposed to be in the position of any other tribunal having the power and
duty to see its orders enforced. For instance, in the Tramways Case [No. 1][44] it was clearly stated
by Isaacs J. that, though the Arbitration Court was not a "Court" within the meaning of the
judicature provisions of the Constitution, it was (as was then thought) a Court well constituted for
the enforcement of the award. At page 72 it is said: "The tribunal which in this case is sought to be
prohibited is therefore a Court in the strict sense; and the question is, does prohibition ever lie to it,
even when it is proceeding to exceed its jurisdiction." That is the kernel of the position at the time,
and the statement rested on the assumption that the one tribunal was both arbitral and judicial in the
strict sense. But Alexander's Case dissipated that view. That was in September 1918. In December
of that year (Act No. 39) Parliament, in consonance with that decision, eliminated all attempts at
judicial power whatever from the structure of the arbitral tribunal, and placed it in the hands of
Courts strictly so called. Consequently, judicial observations prior to that date on the subject of
prohibition respecting awards have to be read by the light of that fact. As to the second reason
advanced for refusing prohibition, judicial dicta to the effect that the nature of the functions of the
arbitration tribunal are judicial or quasi-judicial, in the sense of constitutional judicial power or of
attracting prohibition, are similarly to be regarded with reference to Alexander's Case[45] . It there
became necessary, not merely to separate the judicial from the arbitral functions, but also to
definitely ascertain the nature of the latter. In Hibble's Case [No. 1][46] we summarized the position
in the following passage:?"6. The "award" is not an exercise of the judicial power of the
Commonwealth: it is not like an order of a Court, as to which, as the House of Lords has said, the
Court is not functus officio until the order is fully obeyed. It is a part, and a necessary part, of the
method of legislation by sec. 51 (XXXV.), and when the arbitrator's opinion (for that is all the award
amounts to) as to the dispute is announced, the statute takes it up (sec. 17) and stamps it with
legislative force as a legal obligation, the duty of enforcement being in the hands not of the Coke
Tribunal but of the ordinary Courts. We have fully expounded our views as to this in Alexander's
Case[47] ; and our brother Powers's[48] is, as we read it, in accordance with our own. It is also held
by our brother Higgins in Australian Boot Trade Employees' Federation v. Whybrow & Co.[49] ,
basing it, as we have based it in Alexander's Case, on the principle laid down by the Privy Council
in Powell v. Apollo Candle Co.[50] . It stands, therefore, on the authority of four, that is, an absolute
majority, of the present members of this Court, that an award is of a "legislative" nature because it
is a "factum" on which the law operates."

Since Alexander's Case[51] , but a few months before Hibble's Case [No. 1][52] , a further step was
taken. In Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners'
Association[53] , a decision was given that Parliament can validly enact that awards shall continue
as long as it thinks fit. The necessary effect of that decision is that the conditions of employment
approved by the arbitration tribunal constitute a factum as to which Parliament may say it shall be
the law between the parties for whatever period it chooses irrespective of any limit of time chosen
by the arbitrator. This goes even further than the view taken by our brother Powers and ourselves,
and even further than as stated in the Boot Trade Case[54] . But the decision in the Waterside
Workers' Case introduces a new element, namely, that admitted by Bankes L.J. in R. v. Electricity
Commissioners[55] , with reference to the Irish case of In re Local Government Board; Ex parte
Commissioners of Kingstown[56] , there mentioned. The learned Lord Justice says that if the
function were "quasi-legislative?that is, a proceeding towards legislation" ?the decision goes far to
support the argument of the Attorney-General, that is, that prohibition would not lie. This view is
again made plain by Dodd J. in the Irish Free State case of R. v. Maguire[57] . It becomes of
extreme importance from the decision of the House of Lords in In re Clifford and O'Sullivan[58] .
The House repelled the old idea that even "a pretended Court" was amenable to prohibition, and
adhered in prohibition to the central idea in the words quoted with approval from Short and Mellor,
2nd ed., p. 252, "to compel Courts entrusted with judicial duties to keep within the limits of their
jurisdiction," without limiting the word "Courts" [59] . In that it differed from the true Court Martial
in In re Poe[60] . Prohibition was, therefore, inappropriate. But it seems to us to follow necessarily
that, if the definition adopted by the House was decisive as to the word "Courts," it must be equally
decisive as to the nature of the jurisdiction to be superintended by "prohibition." That jurisdiction
must, ex vi termini, be "judicial" in the true sense, namely, dispensing royal justice in relation to
existing rights and liabilities. Whatever the nature of the tribunal may be that is selected by law (or
possibly by what is by some misapprehension on the part of the Executive assumed to be law, so
that it has some prima facie royal authority), the function prohibited must be "judicial" in the true
and legal sense, and adhering to the central idea of curial functions?though not restricting that term
to the old strict form of Courts, to which ordinarily the idea of "judicial acts" attaches?the House of
Lords has, we think, laid down the law of the ancient remedy in a way that compels every other
Court to reconsider the position. It is true, as Atkin L.J. says?and as, indeed, all the Lords Justices
thought in the Electricity Commissioners' Case[61] ? that there was no overruling of all the cases
which had been considered "judicial" for the purpose of prohibition or certiorari. But the Lord
Chancellor threw no doubt on the necessary nature of the appropriate function; and that has to be
ascertained in every case from the source of the tribunal's authority. Having examined carefully
most of the cases referred to (we think we may say all the important ones within reach), it appears to
us that no general principle can be extracted from them, except that they purport to follow, by
reason of the legal function of the organ concerned, the central definition mentioned in the House of
Lords case. For instance, if we look at page 193, R. v. Glamorganshire Inhabitants[62] is
mentioned. That case had reference to an order by justices to levy money under the authority of an
Act of Elizabeth, the statute itself placing definite proportionate liabilities on the County of
Glamorgan and the Town of Cardiff for repairing a bridge. The objection was that the jurisdiction
was new, being newly created by Act of Parliament. The Court held that was no objection, and said:
"For this Court will examine the proceedings of all jurisdictions erected by Act of Parliament."
Then, as to Re Ystradgunlais Commutation[63] and Re Appledore Commutation[64] , they were
decided under Acts which variously described the decision of the Commissioners as an "order or
adjudication," and to be made "if any suit shall be pending" &c., and as a "judgment or
determination," as a "decision," and declared it "final and conclusive." In Chabot v. Lord
Morpeth[65] the subject of consideration was a trial before a jury, with a verdict, and an order
thereupon. In R. v. Clerkenwell Commissioners of Taxes[66] the application had reference to an
appeal to the respondents under the Act of 1880. Secs. 57 to 59 inclusive leave no doubt of the truly
judicial nature of their functions. In Caledonian Railway Co. v. Banks[67] Lord Gifford spoke of
"the determination?that is, the decision in law?which the Commissioners have pronounced upon the
facts proved or admitted before them." In In re Hall[68] there was made what A. L. Smith[69] "one
of the most novel applications" he had ever heard. Prohibition was refused on a ground rendering it
unnecessary to decide the present point, and counsel for respondent were not called upon to argue.
In R. v. Board of Trade; R. v. Light Railway Commissioners[70] the Act was of a different character,
and the question turns upon its true construction. If we may, we respectfully share the evident doubt
entertained by Lord (then Lord Justice) Phillimore[71] as to the Commissioners being a tribunal to
which a writ of prohibition could appropriately issue. In Board of Education v. Rice[72] Lord
Loreburn L.C., when saying "in such cases the Board of Education will have to ascertain the law
and also to ascertain the facts," was obviously, when the rest of that page is read in collocation,
indicating that Parliament, in accordance with modern practice, had entrusted to a special and
administrative tribunal some functions exactly similar to those of a Court of Justice, though the
decision was to be in the form of an award, and that these functions were from their nature subject
to certiorari. In R. v. London County Council[73] considerable doubts were expressed by all three
members of the Appeal Court as to whether prohibition lay at all, even supposing invalidity in the
order. The question comes down to the true connotation of "judicial" functions within the meaning
of the definition of prohibition and certiorari. In R. v. Woodhouse[74] Moulton L.J. said "judicial" in
that sense meant as distinguished from "purely ministerial." But in 1914 Lord Moulton, in Local
Government Board v. Arlidge[75] , had to deal with a case where the Local Government Board, after
considering evidence taken on a public inquiry before an inspector designated for the purpose and
also his report, confirmed an order of a borough council closing a dwelling-house. In one sense it
was certainly a judicial function, as opposed to purely ministerial duty. But Lord Moulton was fully
conscious that statutory acts of legislatively created bodies were not exhaustively to be described as
either "judicial" or "ministerial." [76] : "I do not wish by this judgment to give any countenance to
the view that certiorari is a proceeding applicable to administrative orders made by such a
department of State as the Local Government Board under statutory powers such as we have here to
deal with, but the point was not argued, and I therefore assume in favour of the respondent that the
procedure he adopted was correct." See also, per Lord Haldane L.C. at page 132, where "judicial"
functions are contrasted with "executive" functions; and per Lord Parmoor at page 140, where
judicial functions are stated to extend to powers "to impose a liability or to give a decision which
determines the rights or property of the affected parties." It is well worth while, when considering
the true import of the observations of Brett L.J. in the Local Government Case[77] , to read what
Lord Sumner (when Hamilton L.J.) said in R. v. Local Government Board; Ex parte Arlidge[78] ,
namely:?"The Local Government Board here is a statutory tribunal, anomalous as compared with
common law Courts, created by the Legislature for a special class of appeals and endowed by it with
the power of formulating its own procedure. We must assume that a department which the
Legislature has trusted will be worthy of the trust. The judgment of such a tribunal, regular on its
face, is surely entitled to as much credit as that of a foreign Court." The words of Lord Haldane,
Lord Parmoor and Lord Sumner look to powers creating instant liability in specified persons or
instantly determining their rights, duties or property on the basis of some previously existing legal
standard. But their words seem very far from a regulation as to industrial conditions, which create
no enforceable instant obligations or rights whatever between specific persons, which may never
eventuate in any obligations or rights, for the employers may never employ any member of the
organization, but which merely lay down a rule or standard of conduct for the future which will, if
certain contractual relations be created between persons of designated classes, eventuate by force of
law in the prescribed rights and obligations, some mutual and some not. To put the matter
concretely:?Suppose an award between an organization of employers and an organization of
employees in a given industry. How could it be predicated that the award itself imposed liabilities or
duties upon individuals? The first organization does not employ the second. Not all the members of
the first employ all the members of the second. The individuals who are members of the first may
cease the next day to employ any of the members of the second; or, if so employing them, they may
cease to be members of the first. The members of the first organization may even employ the same
individual employees, who, however, cease to be members of the second organization. Indeed,
members of the first organization may cease to be such members. In none of these cases does the
award apply. The award becomes a mere code, framed by an "arbitrator," and when framed is
brought into legal force by the Act (Powell v. Apollo Candle Co.[79] ). It needs for its application,
and it is generally a very varied application, the ascertainment of new circumstances, and this
ascertainment and the enforcement of the provisions of the new industrial code is itself properly the
subject of subsequent judicial procedure. Though "arbitration," it is not of the same species as
ordinary arbitration as to existing rights. It is more of the nature of wages board determinations, the
distinction between the two being that one is arrived at without an actual dispute, the other after
actual dispute has arisen. But the essential feature of each is a legislative (though indirect)
regulation of industrial conditions. Whether, therefore, the actual decision in the Electricity
Commissioners' Case[80] conforms or not to the line of thought indicated by previous governing
authorities is dependent entirely upon the construction of the relevant statute. The principle of the
case is that no new doctrine is suggested, and the former cases are recognized as binding. A very
late case in the House of Lords, decided shortly before In re Clifford and O'Sullivan[81] , confirms
this view. Everett v. Griffiths[82] was a case where a justice of the peace made an order for the
reception of the appellant as a lunatic into an asylum, under the Lunacy Act 1890, sec. 16. The
question of the effect of entrusting some "quasi-judicial" powers to bodies other than Courts and
Judges is one that is still in process of development (see per Viscount Haldane[83] ). It has, for
many purposes, to be solved by reference to the terms of the Act which creates the powers and
confers them. The applicability of prohibition was not within the sphere of consideration in Everett
v. Griffiths[84] , but some very valuable opinions were expressed extremely pertinent to this case.
For instance, Lord Atkinson[85] that a proceeding may be a "judicial proceeding" although the
person conducting the proceeding is not a superior Court Judge nor an inferior Court Judge nor a
justice of the peace, and although the ordinary formalities of a Court are wanting. His Lordship
adds: "Whether a proceeding is a judicial proceeding or merely an administrative proceeding
depends much more on what is authorized to be done by the named authority: what is done, and the
effect of the act upon the rights and interests of others." He approves of the definition of judicial act
by May C.J. in R. v. Dublin Corporation[86] , of which the potent words are "imposing liability or
affecting the rights of others." As to the proper interpretation of those words, something will be said
presently. But, to complete the reference to Lord Atkinson's judgment, the cases he quotes are, when
examined, each and all of the class described in the analysis of the cases cited in the Electricity
Commissioners' Case, and they respond to the formula stated above.

The definition of May C.J. was approved and explained in R. v. Local Government Board[87] .
Palles[88] emphasizes the words "imposing" and "affecting." [89] : "I mean that the liability is
imposed, or the right affected by the determination only, and not by the fact determined."
FitzGibbon[90] seems to state properly and accurately the position when he says: "I can find no one
word that will adequately describe all the acts which are not judicial, in the sense required, except
the contradictory "non-judicial." " He adds usefully: "Of other words, "ministerial" is as good as
any, its use is sanctioned, and its meaning has been elucidated by authority. As so elucidated,
"judicial" and "ministerial" conveniently describe the acts which are, and the acts which are not,
subject to control by certiorari." The foregoing conclusions are further supported by the following
recent cases: Keller v. Potomac Electric Power Co.[91] and R. (O'Connell) v. Military Governor of
Hare Park Camp[92] .

With reference to the second Hibble's Case[93] , it is true prohibition was granted to restrain a
special tribunal under the Industrial Peace Act 1920. But the following considerations should be
mentioned: (1) Neither in the argument nor in the judgments is the point as to the non-judicial
character of the tribunal discussed or mentioned; (2) if it had been, the House of Lords had not then
decided In re Clifford and O'Sullivan[94] [95] , the office of prohibition in accordance with the
well-known definition to "Courts entrusted with judicial duties" to keep within the limits of their
jurisdiction. It is also worthy of observation that that decision excised the long practice of Courts,
both in England and in Australia, to be guided by Chambers v. Jennings[96] based on "pretended
Court," a practice which was of long duration, and is probably the root of some of the doctrine
prevailing before In re Clifford and O'Sullivan. It had influence, for instance, in R. v.
Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co.[97] .

We therefore think the House of Lords case cited is of commanding force, and should guide our
decision whatever the previous practice of this Court has been.

We may summarize the position as to prohibition thus:?(a) The function of a tribunal amenable to
prohibition or certiorari must be judicial in the same sense that the function of a strict Court is
judicial, whatever the constitution or the appropriate procedure of the tribunal may be (In re Clifford
and O'Sullivan[98] ; Board of Education v. Rice[99] ; Arlidge's Case[100] , and Everett v.
Griffiths[101] ). (b) That sense is that the determination of the tribunal must itself, and of its own
direct force, instantly impose an obligation or affect the rights of the parties concerned (ibid.). (c) A
function that is substantially executive or legislative in its nature is not judicial in the necessary
sense (Rice's Case; Arlidge's Case; Woodhouse's Case[102] ; In re Local Government Board; Ex
parte Commissioners of Kingstown[103] ). (d) Federal arbitration is, in its nature, legislative and not
judicial in the necessary sense. (So held by four of the present Justices of this Court, and in
necessary effect by the decision in the Waterside Workers' Case[104] ; see also Australian Boot
Trade Employees' Federation v. Whybrow & Co.[105] ). (e) A plenary legislature may, as in
England in the cases cited, entrust "judicial" functions in the requisite sense to any person or
department, executive or otherwise. But the Commonwealth Constitution requires such functions to
be vested in Courts strictly so called (sec. 71 and Alexander's Case[106] ). (f) It follows that it is
legally impossible that the arbitral functions of the so-called Court of Conciliation and Arbitration
are of a character amenable to either prohibition or certiorari. (g) But whether that so-called Court is
ever amenable to prohibition or not, that remedy is inappropriate once an award is made, for then
the tribunal is functus officio. (This, as well as proposition (d), is held by four of the Justices at
present constituting the Court?Higgins J. in Hibble's Case [No. 1][107] , Powers J. in the
Metropolitan Gas Co.'s Case[108] , and ourselves).

We would suggest that the chance circumstance of the absence of one of those four Justices from
Australia, and the unwritten practice (not prescribed by any law) whereby the Justice who happens
to be the President of the Arbitration Court, whether he has or has not had anything to do with the
award challenged, refrains from sitting to determine constitutional and other legal questions, ought
not to detract from the force of their opinions already judicially expressed. It may be worth the
consideration of the Legislature to say definitely whether?on questions of law that, as President, the
head of the arbitration tribunal has no jurisdiction to determine and does not determine in any
binding sense, but merely construes, as he is bound to do, for the purpose of his arbitral duty?the
Commonwealth and the States are to be deprived of his opinion as a Justice of the High Court when
it becomes necessary to consider such questions judicially. The Constitution may be interpreted
quite differently, and legislation may be construed quite differently, according to the presence or
absence of a Judge, not merely by his own ultimate judgment but also by the aid he affords towards
the general opinion of the Court. Before passing from prohibition it should be observed that sec. 31
of the Act was greatly discussed but principally in connection with non-constitutional excess of
jurisdiction. This section, which is of very special importance, is more appropriately considered
later.

(2) Certiorari.?The mere circumstance that a Court is functus officio is no bar to certiorari where all
other conditions for its applicability exist. What we have already said is, however, if correct,
decisive of the inappropriateness of the remedy here. But, assuming that to be incorrect, should the
order be made absolute? As to one of the instruments attacked?the "interpretation" award?the order
should not, in our opinion, be made absolute for the following reason: Before the order nisi was
applied for, the Full Court had already upon the injunction motion definitely ruled its invalidity.
Reasons remained to be given, but for all legal purposes in Australia the so-called interpretation
award was null and void. As to the preference and discrimination award, we assume, contrary to our
actual views expressed in the injunction motion, that the award offends against sec. 40 of the Act.
We will also, for the moment, assume that it offends against the Constitution by awarding a
preference inter familiam, when there was no dispute inter familiam. What then? Must the Court
award certiorari to quash the award in toto? Or is it a matter within the sound discretion of the
Court? In the case of R. v. Glamorganshire Inhabitants[109] the Court, as early as the year 1700,
was careful to see that no avoidable public damage was done by certiorari. It said:?"As to the cases
of orders made by the Commissioners of Sewers, and of the Fens, the Court is cautious in granting
certiorari; and first they make inquiry into the nature of the fact, and what will be the consequence
of granting the writ; because the country may be drowned in the meantime, while the
Commissioners are suspended by the certiorari. But that is only a discretionary execution of the
power of the Court." Lord Sumner (when Hamilton L.J.) said in R. v. Local Government Board; Ex
parte Arlidge[110] : "The grant or refusal of a rule absolute for a certiorari is always a matter of
judicial discretion." This is in accord with Bramwell L.J. in R. v. Sheward[111] . This is certainly so
where the prosecutor is not a "party grieved," that is, who "substantially brings error to redress his
private wrong" (R. v. Surrey Justices[112] ). The case last mentioned, R. v. Surrey Justices, was
decided in 1870; and the line of demarcation there drawn between "a party grieved" and other
persons was somewhat new. No doubt the fact that the applicant in a given case is "grieved" is a
material element in determining the mind of the Court, but that it is anything more than an element
of degree, and not of kind, is quite another question. There is also no doubt that in several cases
since 1870, and quite recently also in 1914, 1919, 1920 and 1921, the Court of King's Bench
Division has more or less acted on the rule of R. v. Surrey Justices. Still, even there it has been
recognized (see R. v. Richmond[113] ) that the interest may be so slight as not to be acted on. That is
not very far, if at all, removed from discretion; and it may be, after all, that the decision referred to
establishes merely the practice of the Court. For a man's absolute right, however small, is a matter
that a Court of law must give effect to if regularly approached. On the other hand, the judgment of
Lord Sumner (then Hamilton L.J.) in R. v. Local Government Board[114] was given in a case
brought by a party aggrieved, and expressly the learned Lord Justice acted upon "judicial
discretion."

But there is really a very strong body of authority in support of the opinion of Lord Sumner and
Bramwell L.J., which was, indeed, concurred in by both Baggallay L.J. and Brett[115] Manisty J.
(for Lush J., Bowen J. and himself) made it very clear that it was discretionary in the Court,
notwithstanding the applicant was a party aggrieved, to grant or refuse a certiorari, and the case of
R. v. South Holland Drainage Committee[116] was approved. Lord Denman's judgment in the latter
case was unmistakably clear that the Court had a discretion even where a defect appeared on the
face of the proceedings. Earlier authorities (as Hawkins P.C., vol. ii., c. 27, sec. 27; R. v. Lewis[117]
, and R. v. Bass[118] ) support that position. Indeed, in 1869, the year before R. v. Surrey
Justices[119] , it was held by Lush and Hayes JJ. in R. v. Newborough[120] , a case of a party
"aggrieved," that "it is in the discretion of the Court to grant or to refuse a certiorari, and it is not a
matter of right." The discretion was exercised, by refusing certiorari though the order impeached
was invalid. (See also R. v. Leicester Justices[121] and R. v. Londonderry Justices[122] .) But lastly,
and decisively for us, the Privy Council has so held. In Colonial Bank of Australasia v. Willan[123]
, a case of certiorari for want of jurisdiction and fraud, it is said: "The Court of Queen's Bench,
whose exercise of this jurisdiction is discretionary," &c. At the foot of that page, it will be observed
that their Lordships not only recognized but also described the applicants as "the parties aggrieved."
That case was decided four years after R. v. Surrey Justices[124] . We therefore think the
jurisdiction in certiorari is in all cases, discretionary. Judicial discretion, however, is not capricious,
but must be exercised in a reasonable manner according to the circumstances.

As to other grounds of complaint the present applicant may or may not be right in asserting that it is
a party aggrieved, but in respect of this particular ground of complaint the applicant is really no
more concerned, upon the facts before us, than any stranger to the award.

Let us see how it would stand if this were the only ground. The objection is that returned soldiers
and sailors within the union are to be preferred when seeking employment, and all things being
equal, to other union members. It is purely an internal preference. Well, unless the applicant desires
to discriminate against returned soldiers and sailors in the union in favour of members who are not
returned soldiers or sailors, there is no individual grievance. The applicant has not, in so many
words, said it does desire so to discriminate. Unless, therefore, notwithstanding the declared and
recognized policy of this country, it is to be held rigidly that the individual arbitrary power to
discriminate against returned soldiers and sailors is a right that an applicant can demand to be
conserved by a Court, even at the cost of destroying the whole provision for preference, and against
discrimination, and irritating anew an industrial sore, or is a right that ought to be protected even to
the public detriment, we do not see why that extreme course should be followed in this case. The
Court is not obliged to take that course, and, in our opinion, sound discretion points to refusal, so far
as this ground is concerned.

As to the other grounds, they are not based on any alleged infringement of the Constitution, but on
failure to follow the provisions of the Act, that is, of the Legislature. For reasons given on the
injunction motion and for the reasons we shall now give in connection with sec. 31 of the Act, a
complete answer exists as to those other grounds, even assuming there was the alleged failure, and
even assuming further that, apart from that section, there was no discretion to refuse the remedy.

(3) Sec. 31 of the Act.?It must be conceded that the will of the Legislature in sec. 31 is as potent as
its will in any other part of the Act. If it says?as in effect it does say, by sec. 31?"Though until an
award or order is actually made, parties may insist on compliance with our directions, and
advantage may be taken of the means provided by the Act to prevent departure from these
directions, yet, once the award or order is made and the Commonwealth's decision terminating the
dispute is formally published, it shall for the sake of industrial peace within the Commonwealth be
as though all our directions had been followed," why is the Court to interpose and deny that result,
to the obvious disturbance of the public peace? Where a legislature prescribes various safeguards for
the formation of statutory companies, safeguards which as enacted are essential to the very existence
of a company, and yet makes a registrar's certificate conclusive evidence of regularity, no one
questions its efficacy. The House of Lords itself, in a well-known decision, admits coercion by the
legislative will in such a case. But, where the services of a whole continent internally and externally
in relation to its multiple industries is concerned, it is gravely argued that even so emphatic a
declaration as sec. 31 is to be disregarded. We are unable to approve the argument. Indeed, except so
far as it rests on the contention of utter invalidity, we have to confess our inability even to
understand it. We shall state why we do not accept the argument.

As to its general nature and effect, we have, in conjunction with our brother Powers, stated our
opinion in the contemporaneous case of Ince Bros. and Cambridge Manufacturing Co. Pty. Ltd. v.
Federated Clothing and Allied Trades Union[125] . We incorporate that opinion, and add the
following, solely appropriate to the present case:?The problem as to sec. 31 relates both to its
interpretation and its legal effect so interpreted. It was sought first to interpret the section as an
attempt to exclude judicial interference with awards, even if they openly violate the Constitution,
with the legal effect of the complete nullity of the section. The interpretation of any legislative
enactment consists simply of declaring the intention of the legislator ascertained from the words
used. The prima facie meaning of words is their primary or natural sense. But a secondary or more
limited sense may be required by the subject or the context (Attorney-General of Ontario v.
Mercer[126] ). Sub-sec. 1 of sec. 31 says: "No award or order of the Court shall be challenged,
appealed against, reviewed, quashed, or called in question, or be subject to prohibition mandamus or
injunction, in any other Court on any account whatever." The words used are certainly, in their
literal signification, as sweeping as any that could be used. Literally, therefore, they confer on every
"award or order" of the Arbitration Court complete immunity from curial review and supervision of
every kind. They unmistakably cover in their literal signification even departures from all
jurisdictional limits which have been prescribed. In the case of a plenary legislature no one would,
we think, venture to dispute that such is the literal and primary ambit of the words used. But before
we so determine in the present case, we must have regard to the nature of the legislator and to the
subject of the legislation. For it is always material in construing a document to inquire whose
instrument it is and what are the surrounding circumstances. The legislator is the Commonwealth
Parliament, a legislature of enumerated powers, and, in this case, of a power limited in more than
one way. It is a well established principle of construction of even English statutes to limit general
words by considerations which, in Stradling v. Morgan[127] , are called "foreign circumstances."
The latest case of supreme authority is that of In re Viscountess Rhondda's Claim[128] . In that case
Viscount Birkenhead L.C. (with whom concurred Lord Atkinson, Lord Buckmaster, Lord Sumner
and Lord Carson[129] : "The words of the statute are to be construed so as to ascertain the mind of
the Legislature from the natural and grammatical meaning of the words which it has used, and in so
construing them the existing state of the law, the mischiefs to be remedied, and the defects to be
amended, may legitimately be looked at together with the general scheme of the Act." The learned
Lord Chancellor referred, among other things, to "a constitutional question of the utmost gravity."
See also per Lord Dunedin[130] and by Lord Wrenbury[131] , the latter approving Stradling v.
Morgan[132] . Numerous prior examples are found, of "foreign circumstances," that is,
circumstances extraneous to the enactment interpreted, limiting the generality of its terms. Among
them are Jefferys v. Boosey[133] , Ex parte Blain[134] and Cooke v. Vogeler[135] . These
authoritative decisions indicate that, even where Parliament confessedly possesses plenary power
within its own territory, the full literal intention will not ordinarily be ascribed to general words
where that would conflict with recognized principles that Parliament would be prima facie expected
to respect. Something unequivocal must be found, either in the context or the circumstances, to
overcome the presumption. But, if that is the case where Parliament has the power to go as far as the
words themselves would literally extend, how much greater is the obligation of reducing the
generality of words, if that be reasonably possible, where the parliamentary power is restrained by a
written Constitution and where the full imputed intention would entirely nullify the enactment. The
maxim ut res magis valeat quam pereat, as applied to Macleod v. Attorney-General[136] , is
applicable to sec. 31 (1) (see Jumbunna Coal Mine v. Victorian Coal Miners' Association[137] ,
Irving v. Nishimura[138] and W. & A. McArthur Ltd. v. Queensland[139] ). This is, indeed, a rule of
very general application (see cases cited in Broom's Maxims, 7th ed., at p. 399). There is no reason
for imputing to Parliament a wilful transgression of the Constitution, nor anything but a strong
determination to prevent, after the completion of an award, any of its own provisions from being

fatal to the establishment of the industrial peace, which is the sole raison d'tre of the statute. The
words "on any account whatever" are properly construed as referring to the effect of
Commonwealth legislation. They go to the very limit of the Parliament's power; but no further. The
sub-section, which was penned originally when the "Court of Arbitration," so-called, was thought to
be both arbitral and judicial, covers every conceivable mode of attack, and for every conceivable
reason jurisdictional or otherwise. But that is always clear of conflict with the Constitution. The first
interpretation suggested is, therefore, in our opinion, inadmissible.

Then, failing that, it was argued that defects of jurisdiction, even if the creation of Parliament, were
not within the protective scope of the sub-section. For this, Clancy's Case[140] was cited. That was
a case under a New South Wales statute. This Court held a section which enacted (inter alia) that
"no award ... of the Court shall ... be liable to be challenged, appealed against, reviewed, quashed,
or called in question by any Court of Judicature on any account whatsoever" was similar to sections
taking away the right to certiorari and other remedies, which had "always been construed as not
extending to cases in which a Court with limited jurisdiction has exceeded its jurisdiction." [141]
was relied on in this case. That case overruled the judgment of the Supreme Court of New South
Wales. There were other reasons given for arriving at the conclusion besides what was held to be the
similarity of the well-known form of certiorari sections. But later cases have to be taken into
account when dealing with the present section 31 (1).

Two cases in this Court, namely, Baxter v. New South Wales Clickers' Association[142] and Minister
for Labour and Industry (N.S.W.) v. Mutual Life and Citizens' Assurance Co.[143] , are important.
Baxter's Case was a case arising on the New South Wales statute amended to meet Clancy's
Case[144] by adding "prohibition." Diversity of opinion appears in the judgments, and the
judgments of O'Connor J. and Isaacs J. would, in the present case, make in favour of refusing
prohibition and certiorari. The case of Minister for Labour and Industry (N.S.W.) v. Mutual Life and
Citizens' Assurance Co. was decided on the New South Wales Industrial Arbitration Act of 1912.
No doubt the observation applies that the construction of that Act does not govern the construction
of sec. 31 of the Commonwealth Act. But it must be noted that in sec. 55 the words "no other
proceedings ... by prohibition shall be allowed" were not thought to be governed by Clancy's
Case[145] .

Another case to be taken into account is R. v. Nat Bell Liquors Ltd.[146] . That case is important for
several reasons. It does not, of course, control the present case, because the construction of one Act
cannot control the construction of another in different language. But it enforces with supreme
authority what has not always been recognized, namely, that the language of the ordinary privative
section in English legislation is always in a form which is very limited. The words ordinarily used
are such as "final" and "without appeal," and so, says Lord Sumner[147] , "again and again the
Court of King's Bench had held that language of this kind did not restrict or take away the right of
the Court to bring the proceedings before itself by certiorari. There is no need to regard this as a
conflict between the Court and Parliament; on the contrary, the latter, by continuing to use the same
language in subsequent enactments, accepted this interpretation." We may add some other words
which had the same effect, namely, "remove" and "removable," which frequently went with the
words "final and without appeal." (See, for instance, 13 Geo. III. c. 78, sec. 80; 7 & 8 Geo. IV. c.
53; 24 & 25 Vict. c. 96, sec. 111; 24 & 25 Vict. c. 97, sec. 69, and 24 & 25 Vict. c. 100, sec. 72.)

It is with respect to cases decided on provisions of that nature that the Privy Council in Willan's
Case[148] : "There are numerous cases in the books which establish that, notwithstanding the
privative clause in a statute, the Court of Queen's Bench will grant a certiorari," that is, for manifest
want of jurisdiction or for manifest fraud. That observation was apparently extended to Clancy's
Case[149] , and, as we suggest, in misapprehension. No case was cited to us or is known to us
which affords a precedent for such extension. Lord Sumner in R. v. Nat Bell Liquors Ltd.[150]
proceeds to show how the common law jurisdiction of the Court of Queen's Bench was limited in its
exercise by a mere change in procedure. By a statutory provision as to the contents of a record what
was "manifest" before ceased to be manifest afterwards, and so the jurisdiction for that reason only
was incapable of exercise in future. The case of R. v. Nat Bell Liquors Ltd.[151] [152] :?"What it
did was to disarm its exercise. The effect was not to make that which had been error, error no
longer, but to remove nearly all opportunity for its detection. The face of the record "spoke" no
longer, it was the inscrutable face of a sphinx." [153] : "The Legislatures of Canada have not failed
to profit by the experience of England in framing new or amending statutes directed to the removal
of difficulties in the administration of the law, which arose out of common law rules and forms no
longer adapted to the purposes of the day." [154] :?"Of course, it is competent for the Legislature to
go further than this, and, where the language used shows such an intention, the presumption above
stated is negatived. This may be done notably in two ways. The one is to take away certiorari
explicitly and unmistakably, or to limit it in a manner not within the older decisions upon such
words as "final" or "without appeal" ; the other is, on the other hand, to restore it to its pristine
rigour by restoring to the record a full statement of the evidence." The second course is certainly not
taken; the first incontestably is taken.

The Commonwealth Parliament, it is patently plain, has endeavoured, like the State legislatures, to
escape from the judicially restricted forms of expression referred to in Willan's Case[155] , and,
when dealing with the new industrial legislation, by words intended "to disarm the exercise" of
prohibition and certiorari for departure from its own directions, and to displace certiorari entirely by
words not within the older decisions upon such words as "final" and "without appeal," and thereby
to make its "awards" ?that is, its legislative codes?as stable and as free from judicial supervision as
possible, except by the tribunal expressly constituted for the purpose and specially conversant with
the subject in hand.

Unless the doctrine that even the express words of Parliament are not sufficient for the purpose is to
be the rule of this Court, we can see no loophole in sec. 31 (1) whereby prohibition or certiorari can
creep in for any statutory defect once an award is duly made and perfected. The mere use of the
word "prohibition" seems decisive?for there is no room for its exercise except for lack of
jurisdiction. Again, the words "on any account whatever" challenge the ingenuity of a draftsman to
find any expression more complete. Nor does the fact that sec. 75 (v.) of the Constitution confers
inalienable jurisdiction by way of "prohibition" on this Court?not certiorari be it observed?carry the
matter any further. That jurisdiction exists, but it needs a proper case for its exercise. Such a case
exists wherever Parliament evinces its intention that curial action shall bind only when certain
conditions are satisfied. But if Parliament in one section says that certain conditions shall be
observed, and in a later section enacts that, notwithstanding they are not observed, the arbitral action
is not to be challenged, there arises what Griffith C.J. in Baxter's Case[156] describes as "a
contradiction in terms." As he says "effect must be given to the whole statute." But how is the
apparent contradiction to be reconciled, and what is the effect of the statute in this case? The effect
is that, before an award is made, ample opportunity is given to ascertain by legal process of various
kinds whether the new industrial code in question shall be promulgated for the co-operators in the
industry. But, once the code is promulgated formally, that shall be the law of the Commonwealth
and industry may safely proceed on that basis, peace shall be preserved, and the community need
not fear an interruption in the satisfaction of its needs. That is the broad intention written in bold
terms on the face of the Act, and that is the dominant feature of the legislation. To read sec. 31
otherwise is to create what Lord Sumner calls "a conflict between the Court and Parliament," and,
we add, a disastrous conflict in a domain fully within the legislative competence of Parliament.

For the reasons which we have felt constrained to state with elaboration to meet the complex and, in
some respects, meticulous objections that were gathered together in argument to destroy the awards
in question, we are of opinion that the application should be refused.

Waterside Workers' Federation of Australia v. Gilchrist, Watt and Sanderson Ltd. ? This is an
application under sec. 48 of the Commonwealth Conciliation and Arbitration Act made by the
Waterside Workers' Federation to obtain an order in the nature of an injunction restraining Gilchrist,
Watt and Sanderson Ltd., a party to a Federal award, from committing breaches of the award. The
particular award the immediate subject of the application was made on 24th December last by
Powers J., and is No. 77 of 1923. The breaches, actual or threatened, which are relied on by the
applicants, are: (1) Preference to returned soldiers and sailors not observed in employing wharf
labourers; (2) discrimination against returned soldiers and sailors members of the organization, (3)
discrimination against other members of the organization. The respondent contends that (a) the
respondent has not employed any wharf labourers; (b) the award does not prescribe preference to
returned soldiers and sailors over any of the men actually employed; (c) the award does not
prescribe anything against the employment of such returned soldiers and sailors as register at the
Shipping Bureau in preference to those who do not; (d) the award does not prescribe anything
against the employment of wharf labourers who at its date were "permanently" engaged by the
"Shipping Bureau" in preference to Federation members, including returned soldiers and sailors,
who were not so "permanently" engaged; (e) if the award does on construction permit preference as
in (c) and (d), it is ultra vires and invalid.

A preliminary point, however, presents itself as to what is to be considered as the "award." Is it that
document as actually framed; or is it that document plus the interpretation that has been put upon it
by the learned President on 28th February 1924? It is evident that some highly important issues are
involved, and these will be considered in order.

1. The Interpretation Order.?Ought this Court to take into consideration the "interpretation" declared
by Powers J. as President of the Arbitration Court on 28th February 1924? During the argument the
Court unanimously ruled in the negative, leaving reasons to be stated later. Our reasons are as
follows:?The declaration as to "interpretation" was made upon a substantive application made under
sub-sec. (o) of sec. 38 of the Commonwealth Conciliation and Arbitration Act. By that sub-section,
with the governing words of the section, it is enacted: "The Court shall, as regards every industrial
dispute of which it has cognizance, have power?(o) to vary its orders and awards, and to reopen any
question and to give an interpretation of any term of an existing award." The words "and to give an
interpretation of any term of an existing award" were added by the amending Act of 1920, No. 31,
sec. 16. That is to say, the addition was made long after it was established by this Court that the
Court of Arbitration was an arbitral tribunal only and not a branch of the Federal Judicature. The
Parliament consequently knew when those words were added to the Act they were not added as a
function of one of the Courts of the Commonwealth in the strictly judicial sense. Moreover, they
were added to a paragraph which, as it stood, referred to a new arbitral determination. And now the
question raises very directly the point as to the function of the tribunal as a Federal arbiter or as a
branch of the Federal Judicature. If the latter, the "interpretation" of 28th February 1924 must stand,
and, unless reversed or varied on appeal if there be an appeal, would govern the matter. If the
former, then the true import of the added words has to be sought outside the ordinary judicial
meaning of the word "interpretation." An award, as has been more than once expounded, and as held
by four of the present Justices of the Court (whose opinions are referred to in the judgment on the
prohibition motion), is in the nature of a legislative act. It is something which, authorized to be
made by a statute, is, when made, covered by and made of binding force by the statute, just as is a
Governor's regulation or a rule of Court, or a municipal by-law. It does not create instant rights or
obligations of individuals. The moment after it is promulgated no one could assert any right under
it. Its operation is ordinarily prospective, like any other ordinance, governing future relations and
giving rise in appropriate circumstances to new possible rights and obligations.

Looking at par. (o), that paragraph as it now stands contemplates (1) variation, (2) reopening a
question, and (3) interpretation of a "term" of an existing award. "Term" is a comprehensive
expression, and includes any provision in the award. See, for instance, pars. (d), (da) and (f) of sec.
38. But unquestionably (1) and (2) contemplate a new direction as part of the award, unless the
award stands exactly as before. In the collocation, and having regard to the nature of the tribunal
and its functions, the third, namely, "interpretation of any term," means also a new direction as
henceforth part of the award. It is something which by way of a clause of interpretation is inserted
in, and becomes an integral part of, the award, that is, after examining the matter as arbitrator and
not as a Court of Judicature. Reading the judgment of the learned President on the application in
question, it is clear that that judgment proceeded on the judicial and not on the arbitral basis. That
seems to be conclusively shown by the following extract:?"The award must be interpreted quite
apart from any question whether there have been breaches of it and in the same way as any other
Court would do?namely, not to consider what was intended or what the Court could do?but what the
Court did by the award. That can only be ascertained from the words used." Clearly, that is the
"interpretation" as a Court of Judicature, and in the exercise of a function which cannot, in face of
sec. 71 of the Constitution, be invested in any but a Court of Judicature as exercising the judicial
power of the Commonwealth. What the Court of Arbitration "could do" and "intended" to do, or
thinks ought to be done, on the application for "interpretation," is what is intended, by the words
used, to be included in the statutory power. As the award stands, therefore, we have to construe it,
according to its own words and our own understanding of its meaning, unaffected by the declaration
of 28th February 1924.

2. Who is the Employer??The respondent says the men who perform the work of loading vessels are
not in its employ at all, but are in the employ of an independent contractor called "The Shipping
Bureau." "The Shipping Bureau," it is said, is a separate registered firm, who engage men, some
permanently and some casually, as their servants. The terms of permanent men are that they register
in the books of the Bureau, upon application in writing, and then wait until some shipowner wants
that class of work done. Until that happens, the Bureau guarantees a weekly wage, and, when, it
happens, the men are told off to work at A's ship or B's ship or C's ship, as the case may be. A, B or
C does not pay them wages at all, at any time, under any circumstances. True, he may, as a
convenience and as agent for the Bureau, pay such wages as the Bureau owes them. But that is not
as the men's employer. A's only obligation is to pay to the Bureau a sum agreed upon between the
Bureau and A. The amount is arrived at by taking casual rates as a basis, but A does not pay it as
"wages" to the man but as an assessment to the Bureau. All that is the view presented by the
respondent.

As the Bureau is not a party to the award, and never could be, since it was not a party to the dispute,
it is plain the Bureau stands clear outside the award, and is not bound by any of its terms, wages,
hours, preference or anything else. It might take any rate as the basis and be free from the award and
impose any conditions of weight-carrying, &c., also free from the award. Moreover, it does not
profess to do any business except that of "Shipping Labour Bureau," which appears to be to provide
labour for shipowners and, having provided that labour, that is, by sending men like any ordinary
labour agency, its duties and responsibilities end. It does not, as a principal, enter into any contract
to do the work itself, as in Cameron v. Nystrom[157] . There is not the least evidence that it enters
into any contract to do anything. Not even to supply labour. It merely, when requested, sends such
number of men on its register as a shipowner asks for. It would be difficult to imagine that it
incurred any duties or responsibilities under any law, State or Federal. The Bureau, then, is not, in
the proper sense or any relevant sense, a "contractor" for the work of loading ships, any more than
was the Government of Queensland a contractor to pilot ships in Fowles v. Eastern and Australian
Steamship Co.[158] . Further, is it an "independent" body? It is registered as a "firm" under the
Registration of Firms Act 1902 of New South Wales. Registration, of course, cannot add to its
character; it is a new statutory condition attached to every partnership that carries on business. The
nature and character of the "firm" so registered and its relation to the respondent depend on other
considerations. It is simply a voluntary association of some fourteen shipowners and one
stevedoring firm, who have agreed to call themselves "The Shipping Bureau." For the common
purpose of selecting such labour as they or some of them may in future require, they appoint a
gentleman, Mr. McKell, as manager, furnish him with suitable housing accommodation, and twenty-
eight assistant clerks, call themselves "The Shipping Bureau," and register as such, stating their
business to be "Shipping Labour Bureau." That does not make the firm a separate entity; there is no
new persona (per Farwell L.J. in Sadler v. Whiteman[159] , and other cases). Its members (apart
from the solitary stevedore) are simply the same shipowners they were before.

The arrangement may be a convenient method of obtaining labour. It may be so conducted as to be
beneficial to all concerned. It may have rendered very meritorious service in the past in
circumstances of an abnormal character and which have now ceased to exist. But it may also be
made?or attempted to be made?the means of frustrating the will of the national Parliament of
Australia in the settlement of industrial disputes that affect the welfare of the whole community.
And that, whatever the motive of its supporters may be, appears to be the inevitable result, if "The
Shipping Bureau" can be successfully maintained as a screen between the shipowners, parties to the
award, and the Waterside Workers' Federation. It is perfectly evident that, if such a device as here
exists is successful for the purpose now sought, it is sufficient to break down any system of
arbitration, Federal or State. If a firm can be formed of fifteen, it can be formed of (say) two or
three or six respondents who may take any collective fancy name and register as a firm, their joint
"business," or rather function, being to engage and supply labour to each separately. Then, the
"firm" being outside the award, they need not obey a single word of it, whatever else they may have
to obey. And, as individual parties to the award, none of the persons composing the firm need obey
the award, because, by the hypothesis, not one of them is the "employer" of the men. As a
consequence the award would stand as an official but wholly inert declaration of imaginary rights,
and, as a means of correcting abuses or maintaining industrial peace, it would be worse than if
merely non-existent. The evidence leads, quite apart from any affirmative evidence, to the
conclusion that "The Shipping Bureau" was no independent persona and was never intended to be
more than an instrument operated by and at the will of the various real persons who had combined
for the purpose. It is a mere labour concentration camp from which supplies can be drawn by the
parties interested as and when they need them. All the complications of registry, and guarantee, and
payment, and dockets, &c., are machinery and part of the method for doing indirectly and in
association what each could do directly and singly.

But there is affirmative evidence of a conclusive character furnished by Mr. McKell himself in par.
26 of his affidavit. Speaking of a conference of 4th January 1924 between the Federation and the
employers' representatives, he says he was present at the conference, and that "the representatives of
the Overseas Shipping Representatives' Association and the New South Wales Coastal Steamship
Owners' Association clearly intimated that the employers they represented had complied with the
award of the 24th day of December last by depriving casual loyalists of the privileges of the Bureau,
and that they intended to continue to carry out the award and give preference to approved returned
soldiers and sailors which would include returned soldier and sailor members of the said
Federation." It may be mentioned that in par. 7 he states that the present respondent is included in
the Overseas Shipping Companies. The word "approved" means, according to the only possible
inference, such as were previously registered at the Bureau. Then the affidavit continues:?"Mr.
Morris" (that is, the Federation's secretary) "was handed the said employers' interpretation of the
award, which was as follows:?"(1) That in the engagement of casual wharf labour the employers
will continue to give preference of employment to approved returned soldiers and sailors through the
Shipping Labour Bureau. (2) When further labour is required and all approved returned soldiers and
sailors are employed, members of the Federation who are not returned soldiers and sailors will be
given equal opportunity of engagement with other labour." " It ought to be at once observed that, if
that written statement, clearly prepared with great care and deliberately, were honestly made by the
representatives?not of the Shipping Labour Bureau?but of the Overseas Shipping Representatives'
Association and the New South Wales Coastal Steamship Owners' Association, as Mr. McKell says
it was, and as it no doubt was, then it is the shipowners, who are the employers of the men, and the
Shipping Bureau is only their mechanical intermediary and agent, and is under their control, and to
a much greater extent than as supplying labour to eight firms. Not only so, but, had the position
been then thought to be that which is now taken up since the legal proceedings have been begun,
namely, that the Bureau (and not the shipowners) was the true and real employer of the men, would
not the employers' representatives, aided by the presence of Mr. McKell, have said so directly?
Their case would have been then, and, indeed, it would have been before Powers J. when preference
was sought: "We do not employ these men at all; they are not employed by any respondent to the
award; they are not employed under the award; they are employed by a totally distinct independent
contractor, unaffected by the award, as to hours, rates, preference or anything else, and you must
look to the Bureau." But as business men they knew that to be untrue and absurd as a fact, and they
abstained from suggesting it to the Arbitration Court and afterwards made their view permanent on
paper. They were obviously right then, and their legal representatives' view is obviously wrong. The
Bureau was then regarded as, and is in fact, their "instrument" and nothing more. That being their
attitude on 4th January, they proceeded to utilize the Bureau. There were what the Bureau calls its
"permanent" men, and of these it kept a list, which will be referred to later. But it is perfectly plain
that the first objection fails, and that the shipowners are the employers of the wharf labourers who
load their ships.

3. Preference in the Award.?The true meaning of the provision made by the award itself with respect
to preference is somewhat difficult to collect. The difficulty is not wholly attributable to the
language. It is due largely to the double and disconnected provisions of the Act as to (1) preference
(sec. 40) and (2) returned soldiers and sailors (sec. 81A). The combined intention of the Legislature
is to be sought from a consideration of the Act as a whole. Sec. 40 enables the Court to direct (inter
alia) that as between members of organizations of employees and other persons (not sons or
daughters of employers) offering service, preference may be given to such members. That is
unlimited as to "other persons" except the limitation of sons and daughters of employers. Standing
alone, for instance, it would enable returned soldiers and sailors who are members of an
organization to be preferred to returned soldiers and sailors outside the organization. But it does not
stand alone, and is not now intended to operate alone. Sec. 81A says: "Nothing in any award or
order made under this Act, or in any agreement relating to industrial matters, shall operate to
prevent the employment of returned soldiers or sailors." It matters not what provision for preference
is made in an award?there may be some such provision in unqualified form in an existing
award?sec. 81A has the effect of preventing any preference against returned soldiers and sailors
outside the organization. There is then, by force of the operation of the award clause of preference
under sec. 40, in view of the direct statutory provision of sec. 81A, this result: the union returned
men stand in the front rank, and so do the non-union returned men?neither having any preference
over the other. It would be against the law as represented by sec. 81A to put the non-union returned
men behind the union returned men, and it is equally against the law as represented by the award to
put the union returned men behind the non-union returned men. When clause 1 (a) of the award is
read, it is seen that the learned President has expressly referred to sec. 81A (1) as "preventing the
Court from making any award which shall operate to prevent the employment of returned soldiers
or sailors" ; and, therefore, it must be a wrong intention imputed to the clause itself, if it is read as
permitting the union returned men to be postponed to the non-union returned men. What we have
said, when the Act and the award are read together and as a whole, is the true intention of
Parliament and Arbitration Court. This is greatly strengthened by reference to clause 2 (a), which
assumes that the whole of the returned soldiers and sailors both in and out of the organization are on
the same level, and in the front rank as against all others, and fully guarded against discrimination in
favour of men outside the Federation. Further, that the intention is to be gathered from the broad
meaning of the award, and not from some cramped technical reading of its words, is shown by the
general tenor of the enactment, and perhaps in this connection more particularly by sec. 28 (1)
prescribing that "the award shall be framed in such a manner as to best express the decision of the
Court and to avoid unnecessary technicality." Looking, therefore, at the award, in the light of the
Act as a whole and of its own terms as a whole unaffected by the interpretation of 28th February
1924, the conclusion is that it provides: (a) Preference for returned soldiers and sailors members of
the organization against all persons whatsoever subject only to this, that, other things being equal,
they are not to be preferred to returned soldiers and sailors outside the organization. This is, of
course, subject as to operation to sec. 81A of the Act. It was contended, and not strongly denied,
that the words "all persons" in the preference clause included fellow members of the organization.
Whether denied or not, the construction of the award depends on its own language as framed by the
learned President, and not on the view taken by either or both of the parties.

We are of opinion that its true construction does no violence either to the Act or the Constitution.
The dispute was in these terms: "The members of the Federation shall have preference of
employment over non-members." Other words were added modifying the claim, but, reading it as a
whole, it is clear that the preference claimed was not inter familiam of the union, but was as
between union members on one side and "other persons," that is, non-members of the union on the
other. It is obvious that where "preference" is asked for between two classes it means going the
whole distance of placing class A before class B. Like every other demand it may be granted in full
or in part. If granted in full, there is no necessity to talk of "non-discrimination," because the greater
includes the less. But if granted, not in full but partially, non-discrimination may be a necessary
incident. Thus, as in the present case, the learned President went the whole way on the road to
preference as to returned soldiers and sailors, but only half the way asked as to other members. He
said "preference" as to the former, and non-discrimination as to the latter?always reserving the rights
of returned soldiers and sailors outside as well as inside the union, and always (expressly in one case
and tacitly in the other) subject to "other things being equal."

The words "all persons" in the preference clause 1 (a) must be construed on the principle that words
in a contract or other instrument should be interpreted with reference to the proved subject matter
under discussion. If necessary, the principle ut magis valeat quam pereat would also apply. But, on
full consideration of the Constitution and the Act, the latter maxim is not necessary. It is true that
constitutionally a dispute is an essential condition of arbitral action and of the necessary legislative
authority to arbitrate. Both constitutional power to legislate and the requisite legislative exercise of
the power are necessary to sustain any award. There is no doubt that "preferential employment" is
an industrial matter as to which an industrial dispute may be dealt with by arbitration (secs. 4 and 19
of the Act). But, once conceding a dispute, the Legislature is free to legislate at discretion in
applying arbitration to settle it. Sec. 40 is a section for this purpose, and, if read as broadly as its
language reasonably permits and the subject matter requires, is wide enough to sustain the award
under consideration without contravening the Constitution. It provides that "The Court, by its
award, ... may (a) direct that as between members of organizations of ... employees and other
persons (not being sons or daughters of employers) ... desiring service or employment at the same
time, preference shall, in such manner as is specified in the award, ... be given to such members,
other things being equal." It is observable that in the opening words of sub-clause (a) we find
"members" not "the members." This points to indefiniteness, which, when the phrase "such
members" is read in conjunction, indicates that the Court may select among the members of the
organization "such members" as are to have preference over "other persons" ?that is, "other" than
those to whom preference is given, whether those "other persons" are within or without the
organization. The section so construed is within the constitutional power of legislation providing
remedies for an existing industrial dispute, and so construed the award is in terms supported by the
section.

4. Discrimination in the Award.?Preference to A over B necessarily connotes discrimination against
B in favour of A. The latter concept is the obverse side of the same medal. The preference given in
fact to those returned soldiers and sailors who, whether unionists or non-unionists, obtain "Bureau
Registry" over those who have only the "organization membership" is, of course, an open
discrimination against the latter class of returned soldiers and sailors. But it is said, and perhaps
truly, that the award does not specifically forbid this, but leaves it to the operation of the affirmative
preference above explained. The only express provision against discrimination relevant to this case
is found in clause 2 (a) of the award. That runs as follows: "The respondents whose names are set
out in schedule A shall not, when requiring wharf labourers' work to be done in Sydney,
discriminate?other things being equal?against members of the Waterside Workers' Federation?not
returned soldiers or sailors?except in favour of returned soldiers and/or sailors." This negative
provision against discrimination is irrespective of the affirmative provision for preference. The care
to mention "returned soldiers and sailors" again, shows that the learned President was zealous to
protect all returned soldiers and sailors, and to keep them, as among themselves, on an even footing.
Clearly, he thought that between the two provisions and the Act all returned soldiers and sailors
would stand on a common platform of equality among themselves and preference as regards others,
outside the union, including the "loyalists."

5. Loyalists.?The learned President dealt expressly and specifically with the position of the loyalists
in clause 8. Reading that clause with clause 2 (a), it is certain he gave them no preference.
Accepting the award as he framed it, loyalists who are members of the Federation have the same
rights as and no greater rights than the general members of the Federation. Of course loyalists
outside the union can have no greater rights. All returned soldiers and sailors who are members of
the Federation have by the award preference over "loyalists" as such outside the union, if such
loyalists are not themselves returned soldiers or sailors. The award is certainly specific as to this.
But a mode of escape is suggested. It is said first that both "preference" and "discrimination" are
referable only to men newly engaged after the date of the award. Next it is said that the
loyalists?some 189?who are preferred to the members of the union, though they are not returned
soldiers or sailors, are "permanent" employees, and consequently outside the preference and
discrimination clauses. They are said to be "permanent" employees of the Bureau and, failing that,
of each constituent member of the Bureau. As to the Bureau, that has been shown not to be the real
employer for loading up ships. A labour agency giving a thousand men a sort of retaining fee to
work for any designated employer when called on, could not be said to convert the men into
permanent employees of the employers bound by an award. Then it is said that the men registered at
the Bureau are the permanent employees of each and every member of the Bureau. That will not
bear the strain of investigation. If A, B and C are a firm owning a steamer called the C?sar, and if
A, X and Y are a firm owning a sailing vessel called the Pompey, and A alone owns a collier called
the Grace, could it be reasonably said that the men constantly employed on the C?sar were the
permanent employees of A in relation to the Pompey and the Grace. If that is followed as to his
other partners in relation to the Pompey, it becomes still more patently wrong. The word
"permanent" does not occur. It is first imagined, and then stretched. Any document could be
annihilated by such a process. At the root of the argument, however, there is something more
reasonable. It is this: that a preference clause and a non-discrimination clause each
contemplates?unless the contrary is stated?that existing contracts are not to be broken so as to create
a cause of action if the award were not made. But?assuming, without by any means deciding, that to
be correct?it does not include a case of a daily engagement which is tacitly renewed each day by
conduct, or a weekly hiring which is renewed tacitly by a weekly continuance, notice, if necessary,
being within the voluntary power of either party. In that case there is, by the mere continuance and
abstention from exercising the unilateral power of refraining from renewing the employment, a
disregard of the clause of preference to or of non-discrimination against others who are waiting to
be employed and in whose favour the award is made. We therefore hold that the 189 loyalists now
preferred and in favour of whom a discrimination is made are not exempt from the clauses referred
to.

6. Breaches.?The breaches are so obvious that it seems tedious to state why. But contrary arguments
elaborately endeavoured to show the contrary, and out of respect to them the matter may be briefly
stated. There are 3,500 men in the organization entitled to the benefits of the awards. There are 321
so-called "permanent" men on the Bureau registry of whom 113 are returned soldiers and sailors,
189 are loyalists and 19 are neither returned soldiers or sailors or loyalists. The registry is forbidden
to any others as "permanent" men. Then there are men, not necessarily unionists, but all of them
returned soldiers and sailors, registered as "casuals." When the respondent requires wharf labourers'
work to be done, the labourers are supplied exclusively from the registry of the Bureau?taking that
registry in order of "permanent" and then "casual." But the "Bureau" will not permit the
organization members to register as they wish?and 500 of them were actually refused registration.
That is, it is said, because no more men are yet needed. But that is fatal to the argument, because it
is a confession that the "possibility" or "opportunity" of obtaining employment is denied to the
members of the organization as such, however skilful and able and willing they may be.
Employment is confined to those whom the Bureau chooses to register?even though they may be
less able or less skilful than members of the organization. As to the returned soldiers and sailors on
the Bureau registry, they have a perfect right to preference over others who are not returned soldiers
and sailors, but they have no right whatever to preference over their comrades who are returned
soldiers and sailors and are not upon the Bureau registry. Even the Bureau admittedly discriminates
against returned soldiers and sailors who register with the Bureau. A so-called "permanent" loyalist
is placed ahead of a returned soldier or sailor on the casual list.

The whole operation of the Bureau then is: (1) Non-recognition of the organization membership as
such; (2) non-recognition of preference to returned soldiers and sailors by reason of the award; (3)
creation of an indispensable condition of employment by any individual shipowner in the position
of the respondent, namely, admission to registration at the Bureau, which may be and has been
refused; (4) general attempt to be free from the operation of the award, since the individual
employer claims not to be liable to pay any "wages" to the wharf labourers employed. These
considerations establish, not merely a breach, but a wholesale abandonment of the provisions of the
award. That is only material now in relation to the specific breaches complained of, and these are
manifest.

7. Ultra Vires.?The last suggested avenue of escape from the consequences of the system is the
contention that the award is ultra vires of the Arbitration Court. This is asserted on several grounds,
namely: (a) sec. 40 does not permit preference to returned soldiers and sailors only, but either
preference must be given equally to them and other members of the organization or no preference at
all must be given; (b) non-discrimination is outside the power of the Arbitration Court; (c) the
dispute on which the award was made claimed "preference" generally and that alone could be
granted?if not granted in toto, preference must be refused; (d) there was no dispute in fact about
returned soldiers and sailors.

As to (a), the words are elastic enough to give full play to the wide discretion which an arbitrator,
having to survey the kaleidoscopic circumstances of industry, must necessarily have. So far from
limiting his discretion, there is even an obligation cast upon him by sub-sec. 2 of sec. 40, which
indicates the precise contrary of what is contended. As to (b), the matter is plainly within the
definition of industrial matters in sec. 4. As to (c), the words are wide enough to include complete
preference, and therefore the limited preference granted was within the ambit of the dispute. The
point is really not arguable. As to (d), so far as that is rested on the wording of the documents
referring to the dispute, it becomes a matter of construction. So far as it is rested on the absence in
fact of any dispute, it is of a graver nature and touches the Constitution. But to all of these
objections there is also one common answer. In this proceeding this Court is exercising a
jurisdiction conferred upon it, not by the Constitution, but by Parliament using its discretion under
the authority of the Constitution (sec. 76). The jurisdiction is contained in the Arbitration Act (sec.
48), and must be exercised on the terms and subject to the limitations Parliament has thought fit to
declare. One of those terms and limitations is contained in sec. 31, which forbids an award once
made to be challenged by any means whatsoever in any Court of law. Without exceeding our
jurisdiction we cannot consider on this proceeding the objections of ultra vires. Sec. 31 is a
legislative command for the purposes of the Act?and sec. 48 is a part of the Act?that every Court
shall refrain from entertaining an objection to the validity of an award once it is made. Whether the
Court would have any or what restriction in a proceeding under sec. 75 (v.) of the Constitution is
quite another matter, as to which nothing is said.

In our opinion the respondent Company should be enjoined against breaking the award by (1)
preferring any person whatsoever to returned soldiers and sailors who are members of the Waterside
Workers' Federation; (2) discriminating in favour of any person whatsoever against returned soldiers
and sailors who are members of the Federation; (3) preferring to or discriminating against members
of the said Federation in favour of any person whatsoever by reason of such person being registered
by or at or affiliated to "The Shipping Bureau."

Starke J.

The Waterside Workers' Federation applied to this Court, pursuant to the Commonwealth
Conciliation and Arbitration Act 1904-1920, sec. 48, for an injunction restraining Gilchrist. Watt
and Sanderson Ltd. (which I shall call the Company) from contravening certain provisions of an
award of the Arbitration Court; and the Company obtained an order nisi from this Court calling
upon the President of the Arbitration Court and the Federation to show cause why further
proceedings upon the award should not be prohibited, or, in the alternative, why a writ of certiorari
should not issue, directed to the Arbitration Court and the President thereof, to remove the
proceeding before that Court, and the award, into this Court. In 1922 the Federation requested
certain shipowners, including the Company, to adopt the following condition of employment of
members of the Federation, namely, "that members of the Federation should have preference of
employment over non-members. If at any time the Federation fails to supply a sufficient number of
competent men approved of by the employer for his requirements, such employer may engage non-
union labour to make up the deficiency at the rates and conditions set out in the last award of the
Court. A failure to supply a sufficient number of competent men approved of by the employer shall
mean a failure to do so within one hour, meal hours excluded, after a request in writing (by any
employer directed to the secretary of the local branch) shall have been lodged at the registered office
of the local branch marked "Labour" with the secretary, clerk or caretaker thereof during business
hours. The said condition is to apply to Sydney, Melbourne, Tasmania, and the coal work at Port
Pirie, South Australia, also Albany, West Australia." The request was not acceded to, and a
compulsory conference was summoned pursuant to sec. 16A of the Arbitration Act, and, no
agreement being reached, the dispute?as the request is now called?was thereupon referred to the
Arbitration Court pursuant to sec. 19 (d) of the Act. Subsequently an award was made which is the
subject of these proceedings.

The document is curiously phrased and its meaning by no means clear; but it provides in
substance?so far as its provisions are material to these cases: (1) that the respondents in the
proceedings requiring wharf labourers' work to be done in Sydney give preference of employment
over all persons?other things being equal?to returned soldiers and sailors members of the
Federation, subject, however, to the express provisions of sec. 81A of the Arbitration Act, that
nothing in any award shall operate to prevent the employment of returned soldiers or sailors; (2) that
the employment of men at the weekly rate of wages, who are not returned soldiers or sailors, shall
not be a breach of the award as to preference if the respondents first offer weekly employment to
returned soldiers and sailors at the rates they are willing to pay to employees engaged at weekly
rates; (3) that the respondents to the proceedings requiring wharf labourers' work to be done in
Sydney shall not discriminate?other things being equal?against members of the Federation other
than returned soldiers and sailors.

In February 1924 an application was made to the Arbitration Court, pursuant to sec. 38 (o) of the
Arbitration Act, to give an interpretation of this award. That Court, however, quite misunderstood
its powers, and proceeded to determine the true meaning of the award in point of law, and therefore
attempted to exert the judicial power of the Commonwealth. Thus the Court asserts that "the award
must be interpreted quite apart from any question whether there have been breaches of it, and in the
same way as any other Court would do, namely, not to consider what was intended or what the
Court did by the award?that can only be ascertained from the words used." No part of the judicial
power of the Commonwealth is or can be vested in the Arbitration Court as at present constituted
(Alexander's Case[160] ), and, therefore, sec. 38 (o) cannot confer that power. The "interpretation"
given by the Arbitration Court to its award of December 1923 is a nullity, and cannot, therefore, be
relied upon in these cases. I do not stay, in this view, to consider the validity or effect of sec. 38 (o)
as to interpretation, but, as at present advised, this provision does not appear to me to add anything
to the power to vary awards and orders and to reopen questions, contained in the preceding words of
the sub-section.
We are consequently thrown back upon the award itself; and the Federation contends that the
Company has contravened its terms, because it refuses preference to returned soldiers and sailors
and discriminates against members of the union in the employment of labour. A firm called the
Shipping Labour Bureau is registered under the Registration of Firms Act in New South Wales. The
members of this firm comprise shipowners, shipping representatives, including the Company, and
stevedores. It engages, apparently, two classes of wharf labourers, one which it calls "permanent
hands," paid upon a weekly basis, and another which it calls "casuals," paid at an hourly rate. These
permanent hands and casuals must be registered at the Bureau, and unless so registered cannot
obtain work through the Bureau. The permanent hands consisted of returned soldiers or sailors
within the meaning of the Returned Soldiers and Sailors Employment Act 1919 of New South Wales,
"loyalists," that is, persons in whose favour certain shipowners or shipping representatives,
including the Company, might discriminate under an award of the Arbitration Court dated June
1918 (see Waterside Workers' Federation v. Commonwealth Steamship Owners' Association[161] )
and a few other persons who were neither returned soldiers or sailors nor "loyalists." The casual
hands, prior to the award of December 1923, consisted of returned soldiers and sailors, some of
whom, I understand, were members of the Federation, and "loyalists" ; but since the award the
"casuals" have consisted of returned soldiers or sailors only. Admittedly, since the award,
"permanent hands," that is to say, returned soldiers and sailors, "loyalists," and possibly some of the
few men neither returned soldiers or sailors nor "loyalists," have been doing wharf labourers' work
in and about ships controlled by the Company. Moreover, the Company insists that this employment
is lawful and in no wise a contravention of the award. But the fact remains, as to the permanent
hands, that the Company did not give preference, in connection with wharf labourers' work which it
required to be done, to returned soldiers and sailors members of the Federation over the "loyalists"
and the few other men already referred to, as prescribed by the award. It follows, I think, that
discrimination is exercised in favour of these "loyalists" and "other men" against members of the
Federation. So far as the "casuals" are concerned, no contravention whatever of the award has been
proved. They are all returned soldiers and sailors, and the award does not prohibit employers from
selecting for work those whom they please, within the preferred class. And by the terms of the
award itself, discrimination is allowed in favour of returned soldiers or sailors against members of
the Federation. The Bureau, in order to comply with the award, notified some 200 "loyalist" wharf
labourers who were "casuals" not to use the Bureau again. Those who are acquainted with the
history of the "loyalists," which is set out by my brother Higgins, when President of the Arbitration
Court, in Waterside Workers' Federation v. Commonwealth Steamship Owners' Association[162] ,
may feel that the December award did not, through some lack of appreciation of the facts,
sufficiently provide for the protection of these unfortunate men, but that is in truth a matter wholly
for the consideration of the Arbitration Court.

The practical object of the injunction proceedings now before us is to oust the permanent-hand
"loyalists" and "other men" from the wharf labourers' work required by the Bureau or its members
to be done in Sydney. Preference to soldiers and sailors members of the Federation will exclude the
"loyalists," because the former class will absorb most, if not all, of the wharf labourers' work
required by the Company and other members of the Bureau. Again, the clause in the award
providing that the Company and other members of the Bureau shall not discriminate against
members of the Federation also seriously affects the position of the "loyalists" and their chance of
employment. A pious declaration is set forth in clause 8 of the award that the members of the
Federation will not unduly interfere with or make things unpleasant for the "loyalists" who may be
employed from time to time during the award and will favourably consider applications of
competent and eligible "loyalists" to become members of the Federation. It does not surprise me that
the Company makes a last stand for these "loyalists" and others, numbering some 200 men. They
have never been heard by any Court, but are described as "highly efficient, obedient, speedy,
dependable and honest workmen, and willing to undertake the handling of any class of cargo."
According to the Federation, the Arbitration Court requires, in the interests of industrial peace, that
these men should be sacrificed, in the manner already indicated, and their skill lost. I fear, to the
waterfront of Sydney.

The Company seeks to avoid this result and to justify or excuse its action in allowing these men to
do wharf labourers' work in and about ships controlled by it, on several grounds:?(1) That the men
are not employed by the Company, and the duty prescribed by the award is to give preference of
employment, when requiring wharf labourers' work to be done. The Bureau, so it was argued, and
not the Company, employed the men. I pass by the fact that the Company was one of the members
of the Bureau, and, therefore, a member of the firm which employed the men, because it is simpler
to treat the Bureau, for the purposes of the present case, as a separate and independent entity. The
Bureau, in my opinion, acted simply as a supplier of labour to its members: it hired the services of
wharf labourers to such members at an agreed amount; it engaged the "permanent hands," and, if a
member required wharf labour, then he notified the Bureau, which supplied the number of men
required?from the "permanent hands" in the first place, and, in the event of a shortage, from the
"casual hands." The members did not pay the men for their services, but paid the Bureau; and they
did not exercise the power of dismissing the men for misconduct, unskilfulness or any other reason,
but made complaint, in such cases, to the Bureau, and the Bureau then dealt with the matter. The
control and direction of the men, however, in loading and unloading the Company's ships, was, I am
satisfied, in the hands of the member using their services, namely, the Company, and the men were
bound, in the course of their work to conform to the orders of that member. In such cases the law is
clear enough: when an employee is sent by his employer to do work for another, it is a question of
fact whether he becomes quoad hoc the employee of the person for whom he is, for the time being,
working, or whether he remains in all respects the employee of his ordinary employer (see Salmond
on Torts, 5th ed., p. 99; Donovan v. Laing &c. Syndicate[163] ; Jones v. Scullard[164] ; Hall v.
Lees[165] ). The facts of the present case make it abundantly clear, to my mind, that quoad the
loading and discharging of the Company's ships the wharf labourers were in its employ and under its
directions. (2) That the Court had no jurisdiction to prescribe that the Company should not
discriminate against members of the Federation. The opinion of my brother Higgins in the Engine-
Drivers' Case[166] , when sitting as President of the Arbitration Court, was strongly relied upon in
support of this proposition. Preference was claimed; but the Court is not restricted to the relief
claimed, and may give such relief, within the ambit of the claim, as seems to it expedient
(Commonwealth Conciliation and Arbitration Act, sec. 38B). Now, the Court refused the full claim
to preference, but granted it in part and also a lesser remedy, namely, that the employers should not
discriminate against members of the union. Such a provision as this is, in my opinion, clearly within
the ambit of the claim, and is an industrial matter which the Arbitration Court is competent to award
(Commonwealth Conciliation and Arbitration Act, sec. 4). (3) That the award prescribing preference
relates to men paid on the hourly basis ("casuals" ), and not to men paid on the weekly basis
("permanent hands" ). The argument was based on the fact that the main award of the Arbitration
Court in relation to waterside workers only prescribed an hourly rate of wage. Therefore, it is said,
the award cannot apply to men who are not engaged on an hourly basis. A minimum wage at an
hourly rate is prescribed by the award, however, for waterside workers members of the Federation,
if employed by the Company and others; and apart from some special provision in the award,
employment on a weekly basis and payment at a weekly rate would not enable the employer to
escape payment of the minimum wage fixed at the hourly rate, if the weekly sum fell below that
amount. The argument is as faulty in logic as it is bad in law. But then it was claimed that the men
employed at weekly rates were exempted from the preference clause by reason of the express
provision of the December award: "the employment of men at weekly rates of wages who are not
returned soldiers or sailors shall not be deemed a breach of this award as to preference if the
respondents (who include the Company) first offer weekly employment to returned soldiers and
sailors at the rates they are willing to pay to employees engaged at weekly rates instead of at casual
rates." This argument fails for two reasons: one that the Company did not employ men at weekly
rates?it hired them on terms from the Bureau, and paid the Bureau for their services at a rate based
on the number of hours worked; the other that it did not offer weekly employment to all the
preference men at weekly rates or at all. (4) That preference to returned soldiers and sailors
members of the Federation was contrary to the provisions of the law of the State of New South
Wales (Returned Soldiers and Sailors Employment Act 1919 (No. 38), sec. 3) and, therefore, beyond
the constitutional power of the Commonwealth. The argument is based upon Federated Saw Mill,
Timber Yard and General Woodworkers' Employees' Association v. James Moore & Son Pty.
Ltd.[167] and Whybrow's Case[168] ; and, if those cases be still law, I should be prepared to assent
to the argument. The State Act provides that every employer "shall give preference in employment
in any ... industry to a returned soldier or sailor who ... is registered for employment in that ...
industry under section ten of this Act, or applies in writing, for such employment, and is not
excluded from the benefits of this Act, as against any other person offering his service at the same
time." But by force of the definition in sec. 2, the returned soldier must be resident in New South
Wales, and his enlistment must have terminated. Now, the Federal award is less extensive in some
respects than this provision, and more extensive in other respects. Thus the preference under the
award is limited to soldiers and sailors members of the Federation, but is not conditioned upon
residence in New South Wales or upon registration under the State Act. There may be some returned
soldiers and sailors who fall within the terms of both the State Law and the Federal award, and who
can claim preference under each provision (cf. Engine-Drivers' Case[169] ). But, in the main, the
State Act and the award must conflict in operation, and both cannot be obeyed. The award is,
therefore, in my opinion, inconsistent with the State law. It is impossible, however, to my mind, to
reconcile the principles underlying the decisions in the Woodworkers' Case[170] and Whybrow's
Case[171] with the decision of this Court in the Engineers' Case[172] , where the Court said:
"However valid and binding on the people of the State where no relevant Commonwealth legislation
exists, the moment it" (that is, the State legislation) "encounters repugnant Commonwealth
legislation operating on the same field the State legislation must give way." An award made under
the authority of the Commonwealth legislation takes its sanction and its force from that legislation,
and has, therefore, supremacy over the State law. Consequently this argument also fails. (5) That the
award of preference to returned soldiers and sailors members of the Federation over all persons
subject to the provisions of sec. 81A transcends the constitutional power of the Commonwealth, and
exceeds the authority of the Arbitration Court. The preference prescribed is "over all persons," but,
subject to the provisions of sec. 81A of the Act, and that, no doubt, gives the selected class, subject
as aforesaid, preference over other members of the Federation as well as over persons who do not
belong to it?non-unionists, as they are called. The Federation did not claim preference for some of
its members over other members, but over non-members. But there can be no doubt that the
Arbitration Court might obtain cognizance of an industrial dispute involving a claim for preference
of a selected class of unionists over "all other persons," and make an award with respect thereto. An
industrial dispute includes a dispute as to industrial matters, and industrial matters include the
employment, preferential employment, dismissal, or non-employment of any particular persons (see
Arbitration Act, secs. 4, 19, 24). The question is whether the Arbitration Court can make such an
award if no dispute or claim was raised as to the particular matter awarded and now in controversy.
Two sections were relied upon for this purpose, namely, secs. 38B and 40. I pass by sec. 38B,
because the provisions of sec. 40 warrant, in my opinion, the award made by the Court. That section
is not a limitation but an expansion of the authority of the Arbitration Court: it is a substantive grant
of authority to the Court in connection with industrial disputes of which it has cognizance, whether
preference has or has not been put in dispute by the parties, or claimed in the proceedings before it.
It may be exerted even after an award has been made, on the application of any organization or
person bound by the award, and whenever, in the opinion of the Court, it is necessary for the
prevention or settlement of an industrial dispute or for the maintenance of industrial peace or for the
welfare of society. As a matter of construction the section enables the Court, in my opinion, to select
the members of organizations who shall have preference, and that selection may be for or against all
the members of an organization or for or against a limited class among them. But the selection being
made, then other things being equal, preference "shall ... be given to such members," that is, to the
members selected, over "other persons" ?which phrase must, to my mind, denote all persons but the
selected class. There is no reason that I can understand for limiting the words "other persons" to
persons who are not members of the organization. It has been suggested that this construction of sec.
40 exceeds the constitutional power of the Commonwealth. But the Parliament has "power to make
laws for the peace, order, and good government of the Commonwealth, with respect to ...
conciliation and arbitration for the prevention and settlement of industrial disputes extending
beyond the limits of any one State," and, while the power of the Parliament is limited and cannot be
transcended, yet within the ambit thereof the Parliament is supreme and may "use any means which
are in fact conducive to the exercise of a power granted by the Constitution" (Stemp v. Australian
Glass Manufacturers Co.[173] ); "you may complement, but you may not supplement, a granted
power" (Whybrow's Case[174] ). Now, implicit in sec. 40 is the necessity of some industrial dispute
before the powers conferred by that section can be exercised. The constitutional power is not limited
to a determination by means of arbitration of the matters or items in dispute, but is a power to make
laws with respect to arbitration for the prevention and settlement of industrial disputes. Given a
dispute, actual or threatened, it is within the competence of Parliament to say what means, what
powers and authorities, the arbitrator may use for the purpose of settling or preventing that dispute.
If industrial peace be the object of the Constitution and the Arbitration Act, and the Legislature
attempts to attain that end by means of a power conferred upon the arbitrator to grant preference,
then Courts of law cannot deny that the end justifies the means, however severely some individuals
may suffer (see Adkins v. Children's Hospital[175] ?Holmes J.). In my opinion, the provisions of
sec. 40 complement, and do not supplement, the constitutional power of the Commonwealth, and
are competent and valid provisions (cf. Waterside Workers' Case[176] ).

Consequently, it appears to me that an injunction must issue against the Company restraining further
contravention of the award of the Arbitration Court. It follows, of course, that the order nisi for
prohibition and certiorari must be discharged.

I should have been glad to leave the matter here, but the opinions prepared by my brother Isaacs, in
these cases and in Ince Bros.' Case[177] , make desirable some reference to sec. 31 of the
Commonwealth Conciliation and Arbitration Act and to the power to issue prohibition to the
Arbitration Court. So far as sec. 31 is concerned, no one can deny that the Parliament cannot
transcend the Constitution by any form of words or by any device. "From the authority to ascertain
and determine the law in a given case there necessarily results, in case of conflict, the duty to
declare and enforce the rule of the supreme law and reject that of an inferior act of legislation
which, transcending the Constitution, is of no effect, and binding on no one. This is not the exercise
of a substantive power to review and nullify Acts" of the Parliament, "for no such substantive power
exists. It is simply a necessary concomitant of the power to hear and dispose of a case or
controversy properly before the Court, to the determination of which must be brought the test and
measure of the law" (Adkins v. Children's Hospital[178] ). Thus sec. 31 cannot affect the grant of
jurisdiction to this Court contained in sec. 75 (v.) of the Constitution. Nor can it give to an award
which transcends the constitutional power of the Commonwealth any validity or force. Some
remedies, such as prohibition, mandamus or injunction, so far as they be within the power of
Parliament, may be withdrawn from the Courts, but still that does not make such an award
efficacious: it is still beyond the power of the Commonwealth, and binding upon no one. So that if
Parliament, as in sec. 31, enacts that the award shall not be challenged in any Court, still, if that
award transcends the Constitution, it is of no effect. The supreme law must prevail and the
provisions of sec. 31 must be rejected. Consequently I should have felt no difficulty in refusing an
injunction in this case if I were of opinion that the provisions of sec. 40 exceeded the constitutional
power of the Commonwealth. But I will not further pursue the consideration of sec. 31, for I realize
that the views I have expressed are mere dicta and quite unnecessary for the determination of these
cases.

The power of the High Court to issue prohibition to the Arbitration Court has been affirmed on
many occasions. Every member of this Court, both past and present, has affirmed and acted upon
the power and no question has been more hotly contested or more thoroughly explored before it.
The long history of the controversy may be found in the following cases: Broken Hill Case [No.
1][179] ; Whybrow's Case[180] ; Tramways Case [No. 1][181] ; Builders' Labourers' Case[182] ;
Holyman's Case[183] ; Tramways Case [No. 2][184] ; Alexander's Case[185] ; Hibble's Case [No.
1][186] ; Hibble's Case [No. 2][187] . To which may be added two cases relating to proceedings for
prohibition to State industrial tribunals, namely, Clancy's Case[188] ; Amalgamated Society of
Carpenters and Joiners v. Haberfield Pty. Ltd.[189] . It is now suggested that the power does not
exist; firstly, because the award of the Arbitration Court is legislative and not judicial in character
and, secondly, because prohibition cannot in any case be granted after an award has been made, for
the arbitrator is then functus officio. Neither argument has escaped the attention of the Court. In
Whybrow's Case[190] Griffith C.J. said:?"A prohibition is a writ directed to the Judge and parties in
an inferior Court, and does not lie except to persons or bodies exercising judicial or quasi-judicial
functions. It lies to a pretended Court as well as to a real one (Chambers v. Jennings[191] ). When,
therefore, the Constitution speaks of a prohibition against an officer of the Commonwealth it means
an officer whose functions are judicial or quasi-judicial. It cannot be denied that the Judge of the
Arbitration Court is an officer of the Commonwealth, or that his functions are judicial." And in the
Tramways Case [No. 1][192] my brother Isaacs was even more explicit:?"It is necessary to define
the exact point arising for our decision. The application is to prohibit the Arbitration Court, as I
term it for brevity, from enforcing an award already made and completed; that is to say, it is not an
application to prevent the President from proceeding to make an award. The difference is precisely
as if in ordinary State jurisdiction a private arbitrator made an award between the parties, and it
were then filed as a rule of Court, or an action were brought upon it in the Supreme Court. The fact
that the arbitrator happens to be personally identical with an individual who presides in the Court is
irrelevant. The tribunals are distinct; and the question is whether "a Court" can be prohibited under
sec. 75 (v.) of the Constitution. The well-known rule that a judgment given without jurisdiction can
be prohibited so long as anything remains to be done under it, does not touch this point. The
Legislature has assumed to create a Court of Record for all purposes, preliminary and consequent, as
well as for the actual settlement of the dispute. And no doubt the nature of the function of the
arbitrator in actually determining the dispute is quasi-judicial, in the sense indicated by Lord
Selborne in Spackman v. Plumstead Board of Works[193] . That would be sufficient according to the
established authorities to attract prohibition in a proper case. See, for instance, Church v. Inclosure
Commissioners[194] ; R. v. Local Government Board[195] ; Great Western Railway Co. v. Waterford
and Limerick Railway Co.[196] ; In re Local Government Board; Ex parte Kingstown
Commissioners[197] ; Partridge v. General Council of Medical Education[198] ; R. v. Clerkenwell
General Commissioners of Taxes[199] ." (To these I would add the late case of R. v. Electricity
Commissioners[200] .) "But in the sense that constitutes a judicial tribunal a Court of justice, one of
the kind of Courts in which the Constitution vests the judicial power, the arbitrator is not a "Court,"
and in my view?reasons for which appear in the Sawmillers' Case[201] and in the Boot Employees'
Case[202] ?the Legislature cannot convert him into a "Court" within the meaning of the Judicature
provisions of the Constitution. So much of the Arbitration Act as assumes to do so may, in my
opinion, be simply disregarded. The President has all necessary powers, and the mere fact that he is
called a Court does not affect his powers. But in respect of the enforcement of an award, the
position is entirely different. The award, when made, creates and settles rights, and those rights may
be judicially enforced in the manner prescribed by the Legislature, by any recognized Court, and, in
my opinion, by no other, because such enforcement, including interpretation, is properly within the
judicial power. In this domain the Court is well constituted, and none the less by reason of the wide
provisions of sec. 25 of the Act. That section should be read as a procedure section, and it does not
except "rules of law," as was the case in Moses v. Parker[203] , a circumstance that seems to me to
have been the real point of the judgment of the Privy Council. And see Canadian Pacific Railway
Co. v. Toronto Corporation[204] . The Legislature, so far from contemplating the Court being free
from any rules of law, clearly intends that the rights of the parties shall be fixed by the award, and
that those rights are to be enforced by the methods prescribed: see, for instance, secs. 32 and 48.
The tribunal which in this case is sought to be prohibited is therefore a Court in the strict sense; and
the question is, does prohibition ever lie to it, even when it is proceeding to exceed its jurisdiction. I
would here introduce a word of caution to avoid future misapprehension. This is not a question
whether, whatever be the law as to the nature of an industrial dispute, or the validity of the
enactment of preference, that Court has or has not jurisdiction to entertain an application to enforce
an award de facto made by the arbitrator, or to decide the validity of any award in whole or in part.
That may yet have to be determined. It is simply a question whether, assuming the Court itself to be
proceeding without or in excess of jurisdiction, it may be prohibited. ... On the whole, therefore, I
am of opinion that, notwithstanding sec. 31 of the Commonwealth Conciliation and Arbitration Act,
it is within the competence of this Court under sec. 75 (v.) to grant prohibition to the Arbitration
Court in a case where that Court is proceeding to act without jurisdiction" [205] . Alexander's
Case[206] established as a decision the opinion given by my brother Isaacs in the Tramways Case
[No. 1][207] that "in the sense that constitutes a judicial tribunal a Court of justice, one of the kind
... in which the Constitution vests the judicial power," the Arbitration Court is not a Court, and that
so much of the Arbitration Act as assumes to so treat it might be disregarded. But in none of the
judgments is any doubt thrown upon the other proposition so explicitly stated in the opinion of my
learned brother. In Hibble's Case [No. 2][208] the whole Court, excepting my brother Isaacs, who
took no part in the case, concurred in granting prohibition to a special tribunal under the Arbitration
Act, and it is inconceivable that Alexander's Case[209] was overlooked or forgotten by any member
of the Court.

Thus the settled law of the Court is that prohibition may issue to the Arbitration Court. In re Clifford
and O'Sullivan[210] is said to conflict with these decisions. But the body there sought to be
prohibited, though called a military Court, "was not a Court in any legal sense." "It was not a Court
Martial, that is to say, a tribunal regularly constituted under military law, but a body of military
officers entrusted by the commanding officer with the duty of inquiring into certain alleged breaches
of his commands ... and its "sentences," if confirmed, derived their force not from the decision of
the military Court, but from the authority of the officer commanding His Majesty's forces in the
field" [211] . Prohibition, it was held, did not lie in such a case, because the officers constituting the
military Court did not claim to act as a judicial tribunal in any legal sense. But Viscount Cave, with
whom Lords Atkinson and Shaw[212] :?"It is true also that in R. v. Local Government Board[213]
Brett L.J. expressed the opinion that the Court should not be chary of granting prohibition, and that
wherever the Legislature entrusts to any body of persons, other than the superior Courts, the power
of imposing an obligation upon individuals, the Court ought to control those persons if they attempt
to go beyond the powers given to them by Act of Parliament; but even if this view be accepted, it
cannot cover the case of a body of persons to whom no such powers have been entrusted either by
Parliament or by the common law. It is unnecessary to decide whether prohibition could in any case
be granted against a body improperly setting itself up as a Court with legal authority to try cases and
pass judgments; but, however that may be, there is no precedent for the issue of" a "writ against a
body which has no statutory or common law authority to do either, and which claims no such
authority." A reversal of the whole of the decisions and practice of this Court cannot be justified on
the strength of anything decided in Clifford's Case[214] .

Again, this Court has determined that prohibition can issue to the Arbitration Court after an award
has been made?that the Arbitration Court is not then functus officio (Tramways Case [No. 1][215] ;
Tramways Case [No. 2][216] ; Builders' Labourers' Case[217] ). In Clifford's Case Viscount
Cave[218] : "A further difficulty is caused to the appellants by the fact that the officers constituting
the so-called military Court have long since completed their investigation and reported to the
commanding officer, so that nothing remains to be done by them, and a writ of prohibition directed
to them would be of no avail (see In re Poe[219] and Chabot v. Lord Morpeth[220] )." But, in the
case of the Arbitration Court, established under the Federal law, its award is subsisting and
operative, and the proceeding in which it issues remains pending in the Court. Any question can be
reopened, and any award or order can be varied (sec. 38 (o) and sec. 39). Nothing in Clifford's Case,
however, throws any light upon the proper application of the well-known and long established legal
principle mentioned therein to tribunals lawfully established as Courts with arbitral functions and
statutory authority. It seems to me that the members of this Court should stand upon its decisions,
and upon the law so declared, and that they ought not individually to depart from them. "It is," of
course, "impossible," as Griffith C.J. said in the Tramways Case [No. 1][221] , "to maintain as an
abstract proposition that the Court is either legally or technically bound by previous decisions.
Indeed, it may in a proper case be its duty to disregard them. But the rule should be applied with
great caution, and only when the previous decision is manifestly wrong, as, for instance, if it ... is
contrary to a decision of another Court which this Court is bound to follow; not, I think, upon a
mere suggestion that some or all of the members of the later Court might arrive at a different
conclusion if the matter were res integra. Otherwise there would be grave danger of a want of
continuity in the interpretation of the law." And, in any case, we did not, in the cases now before us,
assume the responsibility of reopening the former decisions and reconsidering the reasons upon
which they were rested.

Isaacs J.

As the opinions of those who are in favour of granting an injunction differ as to its extent, the order
must be limited to the extent to which those opinions agree.

Order that, other things being equal, the Company be enjoined from (1) preferring any person
whatsoever to returned soldiers and sailors who are members of the Waterside Workers' Federation,
subject, however, to the provisions of sec. 81A of the Commonwealth Conciliation and Arbitration
Act 1904-1920; (2) discriminating in favour of any person whatsoever against returned soldiers and
sailors who are members of the said Federation, subject, however, to the provisions of the said
section. Respondent to pay costs of injunction motion. Order nisi discharged with costs.
Solicitors for the Waterside Workers' Federation of Australia, J. B. Moffatt; Farlow & Barker.
Solicitors for Gilchrist, Watt and Sanderson, H. de Y. Scroggie; E. S. Dunhill; Blake & Riggall.
1. (1921) 2 A.C. 570.
2. [1909] HCA 20; (1909) 8 C.L.R. 419.
3. [1914] HCA 32; (1914) 18 C.L.R. 224.
4. [1914] HCA 15; (1914) 18 C.L.R. 54.
5. [1920] HCA 83; (1920) 28 C.L.R. 456.
6. (1921) 2 A.C. 570.
7. (1921) 2 A.C., at p. 584.
8. [1920] HCA 83; (1920) 28 C.L.R. 456.
9. (1921) 2 A.C., at p. 581.
10. (1921) 2 A.C., at p. 591.
11. (1921) 2 A.C., at p. 584.
12. (1921) 2 A.C., at p. 585.
13. (1921) 2 A.C., at p. 591.
14. (1921) 2 A.C. 570.
15. [1920] HCA 83; (1920) 28 C.L.R. 456.
16. [1914] HCA 32; (1914) 18 C.L.R. 224.
17. [1914] HCA 15; (1914) 18 C.L.R. 54.
18. (1922) 16 C.A.R., at p. 1011.
19. [1920] HCA 20; (1920) 28 C.L.R. 209.
20. [1920] HCA 83; (1920) 28 C.L.R. 456.
21. [1920] HCA 83; (1920) 28 C.L.R. 456.
22. (1921) 2 A.C. 570.
23. (1921) 2 A.C., at p. 579.
24. (1921) 2 A.C. 570.
25. (1921) 2 A.C., at p. 579.
26. (1921) 2 A.C. 570.
27. (1882) 10 Q.B.D. 309, at p. 321.
28. [1920] HCA 83; (1920) 28 C.L.R. 456.
29. (1921) 2 A.C., at p. 584.
30. (1833) 5 B. & Ad. 681.
31. (1850) 15 Q.B. 446.
32. [1920] HCA 83; (1920) 28 C.L.R. 456.
33. (1921) 2 A.C., at p. 591.
34. (1924) 1 K.B., at p. 206.
35. (1921) 2 A.C. 570.
36. (1882) 10 Q.B.D. 309; see (1924) 1 K.B., foot of p. 185 and top of p. 186.
37. (1867) L.R. 2 H.L., at p. 254.
38. (1915) 3 K.B. 536, at p. 548.
39. [1920] HCA 83; (1920) 28 C.L.R. 456.
40. (1921) 2 A.C. 570.
41. [1919] HCA 24; (1919) 27 C.L.R. 72, at p. 97.
42. [1920] HCA 83; (1920) 28 C.L.R. 456.
43. [1918] HCA 56; (1918) 25 C.L.R. 434.
44. (1914) 18 C.L.R., at pp. 71-72.
45. [1918] HCA 56; (1918) 25 C.L.R. 434.
46. (1920) 28 C.L.R., at pp. 475-476.
47. (1918) 25 C.L.R., at pp. 462-464.
48. (1918) 25 C.L.R., at p. 485.
49. (1910) 10 C.L.R., at p. 332.
50. (1885) 10 App. Cas. 282, at p. 291.
51. [1918] HCA 56; (1918) 25 C.L.R. 434.
52. [1920] HCA 83; (1920) 28 C.L.R. 456.
53. [1920] HCA 20; (1920) 28 C.L.R. 209.
54. [1910] HCA 8; (1910) 10 C.L.R. 266.
55. (1924) 1 K.B., at p. 197.
56. (1885) 16 L.R. Ir. 150; (1885) 18 L.R. Ir. 509.
57. (1923) 2 I.R., at p. 64.
58. (1921) 2 A.C. 570.
59. (1921) 2 A.C., at p. 581.
60. (1833) 5 B. & Ad. 681.
61. (1924) 1 K.B. 171.
62. [1792] EngR 1962; (1700) 1 Ld. Raym. 580.
63. [1844] EngR 28; (1844) 8 Q.B. 32.
64. [1845] EngR 125; (1845) 8 Q.B. 139.
65. (1850) 15 Q.B. 446.
66. (1901) 2 K.B. 879.
67. (1880) 1 Tax Cas. 487, at p. 498.
68. (1888) 21 Q.B.D. 137.
69. (1888) 21 Q.B.D., at p. 142.
70. (1915) 3 K.B. 536.
71. (1915) 3 K.B., at p. 548.
72. (1911) A.C. 179, at p. 182.
73. (1893) 2 Q.B. 454.
74. (1906) 2 K.B., at p. 535.
75. (1915) A.C. 120.
76. (1915) A.C., at p. 149.
77. (1882) 10 Q.B.D., at p. 321.
78. (1914) 1 K.B. 160, at pp. 201-202.
79. (1885) 10 App. Cas., at p. 291.
80. (1924) 1 K.B. 171.
81. (1921) 2 A.C. 570.
82. (1921) 1 A.C. 631.
83. (1921) 1 A.C., at p. 659.
84. (1921) 1 A.C. 631.
85. (1921) 1 A.C., at p. 682.
86. (1878) 2 L.R. Ir. 371, at p. 377.
87. (1902) 2 I.R. 349.
88. (1902) 2 I.R., at p. 373.
89. (1902) 2 I.R., at pp. 373-374.
90. (1902) 2 I.R., at p. 384.
91. [1923] USSC 90; (1923) 261 U.S. 428.
92. (1924) 2 I.R. 104, at p. 109.
93. [1921] HCA 15; (1921) 29 C.L.R. 290.
94. (1921) 2 A.C. 570.
95. (1921) 2 A.C., at p. 582.
96. (1703) 2 Salk. 553.
97. (1910) 11 C.L.R., at p. 22.
98. (1921) 2 A.C. 570.
99. (1911) A.C. 179.
100. (1915) A.C. 120.
101. (1921) 1 A.C. 631.
102. (1906) 2 K.B. 501.
103. (1885) 16 L.R. Ir. 150; (1885) 18 L.R. Ir. 509.
104. [1920] HCA 20; (1920) 28 C.L.R. 209.
105. (1910) 10 C.L.R., at pp. 313-332.
106. [1918] HCA 56; (1918) 25 C.L.R. 434.
107. [1920] HCA 83; (1920) 28 C.L.R. 456.
108. (1919) 27 C.L.R., at p. 97.
109. [1792] EngR 1962; (1700) 1 Ld. Raym. 580.
110. (1914) 1 K.B. 160, at p. 204.
111. (1880) 9 Q.B.D. 741.
112. (1870) L.R. 5 Q.B. 466, at p. 473.
113. (1921) 1 K.B. 248, at p. 256.
114. (1914) 1 K.B. 160.
115. (1880) 5 Q.B.D. 179, at p. 182.
116. (1838) 8 A. & E. 429.
117. [1769] EngR 15; (1769) 4 Burr. 2456.
118. (1793) 5 T.R. 251.
119. (1870) L.R. 5 Q.B. 466.
120. (1869) L.R. 4 Q.B. 585, at p. 589.
121. (1860) 29 L.J. M.C. 203.
122. (1905) 2 I.R. 318.
123. (1874) L.R. 5 P.C. 417, at p. 450.
124. (1870) L.R. 5 Q.B. 466.
125. Ante, 457.
126. (1883) 8 App. Cas. 767, at p. 778.
127. (1559) 1 Plowd. 199, at p. 205.
128. (1922) 2 A.C. 339.
129. (1922) 2 A.C., at p. 365.
130. (1922) 2 A.C., at p. 390.
131. (1922) 2 A.C., at p. 397.
132. (1559) 1 Plowd. 199.
133. [1854] EngR 816; (1854) 4 H.L.C. 815.
134. (1879) 12 Ch. D. 522.
135. (1901) A.C. 102.
136. (1891) A.C. 455.
137. (1907-08) 6 C.L.R. 309, at pp. 363-364.
138. [1907] HCA 50; (1907) 5 C.L.R. 233, at p. 238.
139. [1920] HCA 77; (1920) 28 C.L.R. 530, at p. 550.
140. [1904] HCA 9; (1904) 1 C.L.R. 181.
141. (1904) 1 C.L.R., at pp. 196-197.
142. [1909] HCA 90; (1909) 10 C.L.R. 114.
143. [1922] HCA 12; (1922) 30 C.L.R. 488.
144. [1904] HCA 9; (1904) 1 C.L.R. 181.
145. [1904] HCA 9; (1904) 1 C.L.R. 181.
146. (1922) 2 A.C. 128.
147. (1922) 2 A.C., at p. 160.
148. (1874) L.R. 5 P.C., at p. 442.
149. [1904] HCA 9; (1904) 1 C.L.R. 181.
150. (1922) 2 A.C. 128.
151. (1922) 2 A.C. 128.
152. (1922) 2 A.C., at p. 159.
153. (1922) 2 A.C., at p. 161.
154. (1922) 2 A.C., at p. 162.
155. (1874) L.R. 5 C.P. 417.
156. (1909) 10 C.L.R., at p. 131.
157. (1893) A.C. 308.
158. (1916) 2 A.C. 556.
159. (1910) 1 K.B. 868, at p. 889.
160. [1918] HCA 56; (1918) 25 C.L.R. 434.
161. (1918) 12 C.A.R. 277, at p. 293.
162. (1918) 12 C.A.R., at pp. 279 et seqq.
163. (1893) 1 Q.B. 629.
164. (1898) 2 Q.B. 565.
165. (1904) 2 K.B. 602.
166. (1913) 7 C.A.R., at p. 147.
167. [1909] HCA 43; (1909) 8 C.L.R. 465.
168. [1910] HCA 8; (1910) 10 C.L.R. 266.
169. (1920) 28 C.L.R., at p. 12.
170. [1909] HCA 43; (1909) 8 C.L.R. 465.
171. [1910] HCA 8; (1910) 10 C.L.R. 266.
172. [1920] HCA 54; (1920) 28 C.L.R. 129.
173. [1917] HCA 29; (1917) 23 C.L.R. 226, at pp. 232, 234.
174. [1910] HCA 53; (1910) 11 C.L.R. 311, at p. 338.
175. [1923] USSC 78; (1923) 261 U.S. 525, at p. 571.
176. [1920] HCA 20; (1920) 28 C.L.R. 209.
177. Ante, 457.
178. (1923) 261 U.S., at p. 544.
179. [1909] HCA 20; (1909) 8 C.L.R. 419.
180. [1910] HCA 33; (1910) 11 C.L.R. 1.
181. [1914] HCA 15; (1914) 18 C.L.R. 54.
182. (1914) 18 C.L.R. 225.
183. [1914] HCA 36; (1914) 18 C.L.R. 273.
184. [1914] HCA 58; (1914) 19 C.L.R. 43.
185. [1918] HCA 56; (1918) 25 C.L.R. 434.
186. [1920] HCA 83; (1920) 28 C.L.R. 456.
187. [1921] HCA 15; (1921) 29 C.L.R. 290.
188. [1904] HCA 9; (1904) 1 C.L.R. 181.
189. [1907] HCA 37; (1907) 5 C.L.R. 33.
190. (1910) 11 C.L.R., at p. 22.
191. (1703) 2 Salk. 553.
192. (1914) 18 C.L.R., at pp. 70-77.
193. (1885) 10 App. Cas. 229, at p. 240.
194. [1862] EngR 376; (1862) 11 C.B. (N.S.) 664.
195. (1882) 10 Q.B.D., at p. 321.
196. (1881) 17 Ch. D. 493.
197. (1885) 18 L.R. Ir., at p. 514.
198. (1890) 25 Q.B.D. 90, at p. 96.
199. (1901) 2 K.B. 879.
200. (1924) 1 K.B. 171.
201. [1909] HCA 43; (1909) 8 C.L.R. 465.
202. (1910) 10 C.L.R., at pp. 316 et seqq.
203. (1896) A.C. 245.
204. (1911) A.C. 461.
205. (1914) 18 C.L.R. at p. 81.

206. [1918] HCA 56; (1918) 25 C.L.R. 434.

207. [1914] HCA 15; (1914) 18 C.L.R. 54.

208. [1921] HCA 15; (1921) 29 C.L.R., 290.

209. [1918] HCA 56; (1918) 25 C.L.R. 434.

210. (1921) 2 A.C. 570.

211. (1921) 2 A.C., at p. 581.

212. (1921) 2 A.C., at p. 583.

213. (1882) 10 Q.B.D., at p. 321.

214. (1921) 2 A.C. 570.

215. [1914] HCA 15; (1914) 18 C.L.R. 54.

216. [1914] HCA 58; (1914) 19 C.L.R. 43.

217. [1914] HCA 32; (1914) 18 C.L.R. 224.

218. (1921) 2 A.C., at p. 584.

219. (1833) 5 B. & Ad. 681.

220. (1850) 15 Q.B. 446.

221. (1914) 18 C.L.R., at p. 58.

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