1905. Ex parte Company, are not registered under the Act. The members of the applicant union work as casual labourers only, and are paid so much per hour. They are entitled, under the rules of the NEWCASTLE Union, to cease work at any moment upon giving an hour's THE STEVEDORING COMPANY notice of their intention to do so. No general agreement of any (Respondents) kind exists between the union or its members and the respondent company. The C.J. This being the relationship existing between the parties, it seems that the union came to a decision that members should be paid at the rate of 38. per hour on the 9th November, the King's Birthday, and on the 4th the union gave notice to the respondents of their intention to charge that rate. The company having refused to comply with the union's demands, such men as were working for the company on the 8th November, gave an hour's notice, and ceased work at midnight, refusing subsequently to resume work. The moment these men stopped work, after having given more than an hour's notice of their intention to do so, there was no contract of any description between the company and the men. No doubt there was a dispute between them, but there was no contract, and the men had a right to charge what they saw fit, and could obtain. There is no restriction under the Act of Parliament as to what men under such circumstances may charge, and if they saw fit to demand an exorbitant rate, that was a matter entirely between their employers and themselves. That being the position of affairs, and the contract of employment having ceased to exist between the company and the men, Mr. L. T. Webb, the managing director of the company, came up to Sydney on November 11th, bringing with him a declaration signed by Mr. Paton, the secretary, which did not accurately set out the terms of employment existing between the company and the men previous to November 8th. He asked that the Arbitration Court should make an order directing the men to return to work, and got the Registrar to make the necessary application, founded upon Mr. Paton's declaration. After hearing the matter ex parte, the Arbitration Court made an order directing the members of the Coal Trimmers' Union to return to work forthwith pending the determination of certain 1905. Ex parte EIFFE; THE STEVEDORING The C.J. disputes, under a penalty not exceeding 250l. for breach of the order by the respondent union, and not exceeding 51. for any member of the union. I have carefully looked through the Act, and there is certainly no section in it which expressly gives the Court any such NEWCASTLE power, nor can I deduce from any section that any such power COMPANY (Respondents) does exist. Sect. 34 of the Act purports to prohibit strikes and lock-outs. Sect. 34 provides: "Whoever before a reasonable time has elapsed for a reference to the Court of the matter in dispute, or during the pendency of any proceedings in the Court in relation to an industrial dispute, does any act or thing in the nature of a lock-out or strike, or suspends or discontinues employment or work in any industry, or instigates to or aids in any of the above-mentioned acts shall be guilty of a misdemeanour, and upon conviction be liable to a fine not exceeding 1,000l., or imprisonment not exceeding two months." That deals with cases where an industrial dispute exists, which is not the case here, and I can find no section in the Act which gives the Arbitration Court power to grant, as has been done in this case, a mandatory injunction to these men not to cease work; and there is no section from which such a power can possibly be inferred. I am, therefore, clearly of opinion that the Arbitration Court had no jurisdiction to make the order appealed against. Where the Court got the penalty of 250l. I do not know. This Act of Parliament, as I have previously pointed out, is one in abrogation of certain common law rights; and unless the power to deal with the liberty of the subject aimed at in the order complained of is provided for in the Act, the Court cannot give effect to it. The Act must be strictly construed. Its provisions, so far as we can do so, must be given effect to, but they are not to be unduly stretched. A man's liberty is not to be interfered with unless the Act gives the Court some authority to say to these men, " You must go to work." A man has a right over his own labour, and a right to decide whether he will work or not, and unless some Act is passed saying that men must go to work, whether they like it or not, that right will continue to exist. No such power is given in the Arbitration Act, and I hope it will not be found in any other. For these reasons I am of opinion that a prohibition must go. 1905. Ex parte STEVEDORING As to the costs, it is quite plain that the respondent company put the law in motion by the statutory declaration of Mr. Paton, THE upon which the Registrar, under the terms of s. 28 of the ArbiNEWCASTLE tration Act, brought the matter before the Court. Having done COMPANY SO, and having induced the Arbitration Court to make the order, (Respondents) the respondents must pay the costs. I dare say that if notice of the application had been given to the Coal Trimmers' Union and they had been represented, the Arbitration Court would never have made the order, as it would have been pointed out to them that they had no power to make it. The C.J. OWEN, J. I am of the same opinion. It is quite clear that the Arbitration Court had no power whatever, under the circumstances of this case, to order these men to return to work, or to cease work, or to continue working, and how the Arbitration Court can have thought they could do so passes my comprehension. The men intimated to the respondents that they would not work unless they were assured that they would be paid 38. per hour. Under the rules of the union the men were entitled to cease work on giving an hour's notice, so that they were within their rights in ceasing work as they did. Another reason why this rule should be made absolute is this, that the application to the Arbitration Court was one which most materially affected the members of the union, since they were called upon to resume work under a heavy penalty, and yet they knew nothing of the application, and had no opportunity of being heard. If they had, I have no doubt the order would never have been made. PRING, J. I concur. It appears to me that the Court has no jurisdiction unless there is an existing contract between employer and employee. Unless there is an existing employment there can be no such thing as a strike. Rule absolute with costs. Attorneys: W. A. Read (Newcastle); Sly & Russell. Ex parte HUGHES. 1905. Municipalities Act (1897 No. 23), s. 109-Motion to oust-Costs-Informal notice February 27. that rule has been granted. The respondent sat and voted after receiving a letter from the applicant's attorney informing him that a rule had been granted. Held, that he was liable for the costs, even though he had not been served with the rule nisi. MOTION to oust an alderman. It appeared that in the afternoon of a certain day the respondent was served with a letter or notice signed by the applicant's attorney, informing him that a rule nisi had been granted, and warning him not to sit. Nevertheless the respondent sat and voted at a meeting of the council held that night. He was not served with the rule nisi till after the said meeting. Walker, for the applicant. Kelynack submitted, but asked that the order should be made without costs. A respondent is only liable for costs if he sits after service of the rule nisi: Ex parte Howarth (17 W.N.70). THE CHIEF JUSTICE. He had a written notice that a rule had been granted, signed by the applicant's attorney, who is an officer of the Court. Kelynack. The fact that an attorney is an officer of the Court does not give him any official power to serve notices. The rule for many years has been that a respondent must not sit after service of the rule nisi. Suppose someone met the respondent in the street and told him a rule had been granted? He is entitled to know the grounds on which the rule has been granted, and this letter does not state the grounds. THE CHIEF JUSTICE. I think that if the respondent sits after he has authentic knowledge that a rule has been granted, he does so at his own risk. The rule must be absolute with costs. OWEN and PRING JJ., concurred. Rule absolute with costs. Attorneys: E. R. Abigail; T. J. Dickson. The C.J. 1905. THE MINISTER FOR LANDS v. HACK. February 27. Crown Lands Act, 1884 (48 Vic. No. 18), s. 21 (4)—Crown Lands Act Amendment The C.J. Owen J. and Fring J. Act (1903 No. 15), 88. 3, 4- Homestead selection area within suburban area— Lands set apart for homestead selection within a suburban area are not available under s. 3 (a) of 1903 No. 15 for additional conditional purchase, unless a notification has been issued under s. 4 of that Act, to take such lands out of the exemption contained in s. 21 (4) of the Act of 1884. SPECIAL CASE stated by the Land Appeal Court. 1. On the 10th March, 1900, certain lands within the suburban and population boundaries of the City of Armidale were set apart by a notification under s. 18 of the Crown Lands Act of 1889 as a special area. 2. Under the terms of the said notification the respondent, on the 30th May, 1901, took up an original conditional purchase of 20 acres 2 roods 1 perch (comprising portions 776 and 777 in the Parish of Armidale, County of Sandon), and on the 25th June, 1903, took up an additional conditional purchase of 32 acres (comprising portions 778, 779 and 876 in the same parish and county), being the maximum allowed to be applied for thereunder. 3. By a notice in the Gazette, dated the 5th November, 1892, proclamations were duly made under the 18th section of the Crown Lands Act of 1889, setting apart as special areas certain other lands also within the said population area and suburban boundaries of the City of Armidale, adjoining (or separated therefrom only by a road) the lands on which the respondent had made his conditional purchases aforesaid. One of these special areas included portions 836, 837, 838, 839, 840, 843, 844, 845, 846, S47, 848, 849, 856, 857 and 858, each of 20 acres, and the other special area included portions 841 and 842, each of 20 acres, in the parish of Armidale. |