Moore v Commonwealth [1958] HCA 53

High Court of Australia Dixon C.J. Fullagar, Taylor, Menzies and Windeyer JJ. Moore v Commonwealth [1958] HCA 53

ORDER Cause remitted to the Supreme Court of New South Wales to be dealt with according to law.

The following oral judgments were delivered:—

Dixon C.J.

The proceeding before us consists in a demurrer to two counts contained in a declaration in an action brought in the Supreme Court of New South Wales against the Commonwealth. There is a third count in the declaration to which there is no demurrer. The plaintiff alleges that he was injured in a factory occupied by the Commonwealth. The action is, of course, brought under Pt. IX of the Judiciary Act 1903-1955.

The two counts in the declaration to which the defendant Commonwealth demurs are based upon s. 25 (2) (a) of the Factories and Shops Act 1912-1954 N.S.W.. Paragraph (2) (a) falls into two limbs. The first count is based on the first limb and the second count on the second limb of s. 25 (2) (a). The purpose of the demurrers on behalf of the Commonwealth was to raise the question whether any liability rested upon the Commonwealth in consequence of the provisions of s. 25 (2) (a). Whether such a liability did so rest upon the Commonwealth must depend upon the operation of Pt. IX of the Judiciary Act considered in combination with s. 79 of that Act. During the course of the argument of the demurrer in the Full Court of the Supreme Court of New South Wales the argument took a form which led their Honours to the view that a question or questions as to the limits inter se of the constitutional powers of the Commonwealth and of the State arose. If that were so the consequence necessarily was that s. 38A of the Judiciary Act operated to deprive the Supreme Court of jurisdiction and s. 40A of the Judiciary Act accomplished the transfer of the cause to this Court. It is on this footing that the demurrer comes before us. It is perhaps desirable to add that in such a case s. 41 of the Judiciary Act makes provision for the continuation of proceedings before this Court. Section 42 of the Judiciary Act was enacted before ss. 38A and 40A. It enables the High Court to remit a proceeding which has been removed into the High Court if it appears that the cause does not really and substantially arise under the Constitution or its interpretation. The provision does not directly apply in terms to a removal under s. 40A but the Court has proceeded by analogy when it has appeared that a supposed removal under s. 40A has not really occurred because the matter does not involve a question inter se. We have formed the opinion that the arguments addressed to the Supreme Court did not raise what was in truth a question of the limits inter se of the constitutional powers of the Commonwealth and of the State and we do not think that such a question is intrinsic in the cause. We have had the advantage of hearing both Mr. Macfarlan and Mr. Murphy as to the course of the proceedings before the Full Court of the Supreme Court. Both counsel have had access to the transcript and shorthand notes of the argument. We have, of course, ourselves considered the pleadings and the Factories and Shops Act 1912-1954. Anxious as we are that there should be no delay in the action and that what after all is a jurisdictional or procedural matter should not be the occasion of embarrassment, we nevertheless are impelled to the conclusion that we have no jurisdiction over the cause or, in the old-fashioned phrase, seisin of the matter. We think that the demurrer does not in fact and did not raise a question of the limits inter se between the constitutional powers of the Commonwealth and the State. The question which the demurrer does raise appears to us to be entirely one of statutory interpretation in which the delimitation of statutory power can play no real part. Sub-section (2) (a) of s. 25 of the Factories and Shops Act 1912-1954 N.S.W., as I have said, falls into two limbs. The first limb provides that where in connexion with any process carried on in a factory dust, fumes or other impurities are generated or given off, of such a character or to such an extent that the inhalation thereof would be likely to be injurious or offensive to the persons employed therein, effective measures shall be taken by the occupier to prevent the accumulation in any workroom of such dust, fumes, or impurities and to protect such persons against the inhalation of such dust, fumes or impurities. The first count of the declaration alleges that the plaintiff was employed in a factory in connexion with a process of the kind described by this provision and that the Commonwealth was the occupier and ought to have taken effective measures to prevent the accumulation of such dust, fumes, etc. in order to protect the plaintiff against the inhalation thereof. The count then alleges breach. The second limb to par. (a) of sub-s. (2) of s. 25 provides that where the nature of the process makes it practicable exhaust appliances shall be provided and maintained as near as possible to the point of origin of the dust, fumes and impurities, so as to prevent the dust entering the air of any workroom. The paragraph provides that a factory in which there is a contravention of the sub-section should be deemed not to be kept in conformity with the material part or the Act. Section 56 then provides in effect for the imposition of penalties on persons responsible if a factory or shop is not kept in conformity with the Act.