5 CLR

Continuing my series.

Page 50 of 5 CLR is part of O’Connor J’s judgment in Amalgamated Society of Carpenters & Joiners, Australian District v Haberfield Pty Ltd [1907] HCA 37; (1907) 5 CLR 33 (30 August 1907). Isaacs (who with Higgins had joined the bench) also sat in this case, together with Griffith CJ.

It concerned whether the Supreme Court could issue a writ of prohibition against the Arbitration Court on the basis that it had wrongly determined that the respondent was an employer. Haberfield said that its carpenters were subcontractors, not employees, so that the award (for which it had been summonsed for breach) did not apply to it. The Arbitration Court decided otherwise. There was no appeal from the decision of the arbitration court and the relevant legislation did not provide for one. The Supreme Court held that the Arbitration Court had made an error on this point and that therefore it had exceeded its jurisdiction, which was a basis for making an order (prohibition), which I presume prevented it from taking any further steps in the proceedings or any enforcement of its orders.

This prohibition and certiorari stuff is something that I have never entirely mastered – something which is compounded by the mystery of error on the face of the record, though one of the cases referred to in the judgments, to do with St Olave’s District Board, is one which I remember the name of from the haze of my studies of administrative law.

The appeal was upheld. I shan’t try to explain why. I think it hinges on the fact that the evidence and the reasons of the Arbitration Court are not part of the record (so that there could be no error on the face of the record), and there is not an error of jurisdiction just because a tribunal decides a fact which is part of what it has to decide. Incidentally, Griffith CJ thought that the Arbitration Court had got it wrong, but that unless the parliament legislated for a right of an appeal, even the High Court couldn’t interfere. Isaacs was “by no means convinced that the decision of the Arbitration Court as to the real relationship of the respondents to the workmen was wrong.” O’Connor, wisely perhaps, expressed no view. From what I can gather (ie, subsequent citations) the case appears to still be good law.

Trivia note:

Solicitors for the [wanting not to be] employer were Dawson, Waldron & Glover – the Sydney ancestor of Dawson Waldron, and hence Blake Dawson Waldron and now Blake Dawson after the merger with the Melbourne successors to Blake & Riggall, who scored a less than glorious guernsey in 4 CLR.

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