Mathews v Burns

[1918] HCA 38

25 CLR 322

COMPLAINANT, Industrial Arbitration-Organization-Recovery of dues-Court of summary jurisdic-

tion-Imprisonment in default of payment-Commonwealth Conciliation and Arbitration Act 1904-1915 (No. 13 of 1904-No. 35 of 1915), sec. 68-Acts SYDNEY,

Interpretation Act 1901-1916 (No. 2 of 1901-No. 4 of 1916), sec. 26-Judiciary Aug. 12.

Act 1903-1915 (No. 6 of 1903-No. 4 of 1915), sec. 79-Small Debts Recovery Act 1912 (N.S.W.) (No. 33 of 1912), sec. 7*-Justices Act 1902 (N.S.W.) (No. 27 of 1902), sec. 82*.

A complaint to recover contributions alleged to be due to an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1915 by a member thereof was heard by a Stipendiary Magistrate sitting as a Court of Petty Sessions of New South Wales, and an order was made for payment * Sec. 7 of the Small Debts Recovery

be levied by distress. (2) Whenever by Act 1912 (N.S.W.) provides that Courts

order it is adjudged that of Petty Sessions shall have power to

sum of money, or costs, hear and determine in a summary way

shall be paid, the justice or justices all actions whatsoever (inter alia) for the recovery of any debt or liquidated

and thereby adjudge that, in default of demand not exceeding £30. Sec. 43

payment, in accordance with the provides for execution in default of payment of money ordered by a Court

amount thereby adjudged to be paid of Petty Sessions to be paid.

as ascertained thereby, the person against whom the conviction or order (N.S.W.) provides that " (1) In no case

is made shall be imprisoned and so any sum of money, or

kept for such period costs, adjudged to be paid by any

such justice or justices seems fit, order made by any justice or justices founded on Act past or future, be or be adjudged to

25 CLR 323

of a certain sum and for imprisonment in default of payment. A rule nisi for prohibition on the grounds that the Magistrate had no power to award imprisonment in default of payment and that the Court was not a Court of summary jurisdiction within the meaning of sec. 68 of the Commonwealth Conciliation and Arbitration Act was discharged by the Supreme Court.

Held, that special leave to appeal to the High Court should be refused. Special leave to appeal from the decision of the Supreme Court of New South Wales: Ex parte Mathews, 18 S.R. (N.S.W.), 316, refused.

APPLICATION for special leave to appeal.

At the Central Police Court, Sydney, before a Court of Petty Sessions constituted by a Stipendiary Magistrate, a complaint was heard whereby John Burns, on behalf of the Federated Ironworkers' Association of Australia, an organization registered under the Commonwealth Conciliation and Arbitration Act, sought to recover from Henry William Mathews the sum of £1 7s. for contributions and levies payable under the rules of the Association. At the hearing objection was taken on behalf of the defendant that the Court had no jurisdiction as the proceedings were for the recovery of a civil debt and that the proper Court in which to sue was the Small Debts Court. The Magistrate overruled the objection, and made an order that the defendant should pay ten shillings for Union dues, four shillings for costs, seven shillings and sixpence for a witness's expenses and twenty-one shillings professional costs, and he ordered that in default of payment the defendant should be imprisoned for seven days. The defendant then obtained a rule nisi for prohibition on the grounds 1 that the Magistrate sitting as the Central Police Court had no jurisdiction to make the order (2) that the order was bad inasmuch as it imposed imprisonment for a simple contract debt, and (3) that the Central Police Court holden under the provisions of the Justices Act 1902 was not a Court of summary jurisdiction within the meaning of sec. 68 of the Commonwealth Conciliation and Arbitration Act. The Full Court ordered that the rule nisi should be discharged Ex parte Mathews (1).

The defendant now applied for special leave to appeal to the High Court from that decision.

McGhie, in support of the application. There was no power to

18 S.R. (N.S.W.), 316. 25 CLR 324

impose imprisonment in default of payment. Even if the Magis- trate might in the case of an ordinary civil debt order imprisonment in default of payment, he had no power to do SO in respect of the payment of money recoverable under the Commonwealth Concitiation and Arbitration Act, for under sec. 79 of the Judiciary Act the laws of the State do not apply where the laws of the Commonwealth otherwise provide, and the Commonwealth Conciliation and Arbitration Act does otherwise provide (Federated Sawmill &. Employees' Association v. Alexander 1 ). The whole spirit of that Act is against imprisonment, which is only provided for in the case of a second offence against the Act (sec. 5). The Magistrate sitting in the Central Police Court was not a Court of summary jurisdiction within the meaning of sec. 68 of the Commonwealth Conciliation and Arbitration Act or of sec. 26 (d) of the Acts Interpretation Act 1901- 1916. The proceedings should have been instituted under the Small Debts Recovery Act 1912 (N.S.W.), which by sec. 7 provides for execution in default of payment, and nowhere provides for imprison- ment in default of payment. Sec. 82 (1) of the Justices Act 1902 (N.S.W.), which gives a power to award imprisonment in default of payment, does not apply to orders made under the Small Debts Recovery Act.

[ISAACS J. That section appears to be one of general application.] Under sec. 68 of the Commonwealth Conciliation and Arbitration Act the proceeding must be brought in the particular Court of summary jurisdiction which, if the debt were recoverable under the laws of the particular State, would have jurisdiction to entertain it. [Counsel also referred to Master Undertakers' Association of New South Wales v. Crockett 2.]

PER CURIAM. Special leave to appeal will be refused.

Special leave to appeal refused. Solicitor for the applicant, P. J. Clines.

115 C.L.R., 308, at p. 313. 25 C.L.R., 389