si 260 HIGH COURT '. H.C. oF A. new legal argument in support of a ground taken is, in my 1924. ir "i always admissible and quite as much as a new legal ground Conen appellate decision of the Court. an The judgment should be affirmed and this appeal dis Appeal dismissed with cos Solicitor for the appellant, Z. R. Abigail. Solicitor for the respondent, B. 7. Heavener. Dis Dist Refdto Gia Geiger" a, BG FELD Health Sorvi- REAR GORD ete (HIGH COURT OF AUSTRALIA.} HILLMAN rj 4 4 . . APPE PLaIntIFr, AND THE COMMONWEALTH . 3 i 4 . Respro DerFENDANT, H.C. or A, Industrial Arbitration—Award—Award made binding on agency of Commo 1924, How far binding on Commonwealth—Transfer of activity to another ae, 'Successor—Commonwealth Conciliation and Arbitration Act 1904-1921 (\ Sypyey, of 1904—No. 29 of 1921), sec. 29. Aug. 21,22, re: at By an award of the Commonwealth Court of Conciliation and A it was provided that the award should be binding on the Naval B Starke J. Minister for Navy and the Minister for Defence. Nov. 24, 25; Held, that the award was not binding upon the Commonwealth, Dec. 17. an original party to the award or by virtue of sec. 29 (ba) of the Comm Zeon Conciliation and Arbitration Act 1904-1921, in respect of employment in Isaacs and same activities subsequently carried on by the Commonwealth through Gav é 'avan Duffy JJ. representatives than those named. Decision of Starke J. affirmed. 5 O.L.R.] OF AUSTRALIA. Apres from Starke J. An action was brought in the High Court by Henry Hillman, on behalf of himself and all other members of the Amalgamated Engineering Union (Australian Section) employed at the Common- wealth dockyard, Cockatoo Island, affected by an award made by the Commonwealth Court of Conciliation and Arbitration on 14th June 1921 in a matter in which that Union (then the Amalgamated Society of Engineers) was the applicant and the Adelaide Steamship Co. Ltd. and others were respondents, against the Commonwealth, claiming in substance a declaration that the hours of duty of members of the Union employed at such dockyard should not, since 11th November 1922, without payment for overtime have exceeded 44 hours per week. The action was heard by Starke J., in whose judgment hereunder the material facts appear. Piddington K.C. and Collins, for the appellant. Bavin A.-G. for N.S.W. and A. L. Campbell, for the respondent. Cur. adv. vult. Srarxe J. delivered the following written judgment :— _ This is an action brought by Henry Hillman, on behalf of himself and all other members of the Amalgamated Engineering Union (Australian Section) employed at the Cockatoo dockyard, for a declaration that their ordinary hours of duty should not, since 11th November 1922, have exceeded 44 hours per week without payment 'of overtime. The Cockatoo dockyard has, since that date, worked a 48 hours' week, and the real object of the action is to establish a right to overtime in respect of the additional 4 hours. The claim arises out of an award of the Commonwealth Court of Conciliation and Arbitration made in June 1921. Clause 3 of that award provided: "The ordinary hours of duty shall not (without payment of overtime) exceed 8 hours on each of the five days in the week between 7 a.m. and 5 p.m. and 4 hours on Saturday between Tam. and noon." An admission was made in the case as follows : "6. The said award at the date of the making thereof was made VOL, XXXV. 18 H. C. or A. 1924. ww Hitman v. Tue Common - WEALTH. HIGH COURT H.C. or A. to bind a number of respondents including the Naval Boar F 1924, Hitman v. THE Common- WEALTH. Starke J. Minister for Navy and the Minister for Defence. The said ay the date of its making did not bind any Department of the Comm wealth or any Minister thereof except in so far as the Commonwealth was bound by virtue of the said award being bin on the said Naval Board, the said Minister for Navy and the Minister for Defence." I accept this admission, but the' term the award have rather puzzled me. Clause 16 provides that award is binding on the following respondents :—' F—As to ite appearing in the said log" (that is, the general log of wages. conditions of employment prepared by the Union and annexed the award) " numbered clause 1; items" (enumerated) "and wi respect to each and every item in clauses 2 to 25 inclusive— . Naval Board, Minister for Navy, Minister for Defence . This means, I suppose, that the award, and not the log, is bindin respect of the subjects mentioned in the log. But I take admission as also based on sec. 29 of the Act. In September If the award of June 1921 was varied as follows: "3a. On and af midnight 23rd September 1922 clause 3 and sub-clause (b) of 4 shall not apply to any of the respondents bound by this awa except to the following respondents . . . who have not aj for a variation of the award . . . Naval Board, Minister for Ns Minister for Defence." And clause 38, except as to the respond already mentioned, prescribed, in lieu of clause 3, that the ordii hours of duty should not (without payment for the overtime), ¢ 8 hours 45 minutes on each of the five days in the week between 7s \ and 5 p.m. and 4 hours 15 minutes on Saturday between Ta and noon. In May 1923 a further variation was made as follows: "That . . . the order of variation of hours made by this © on 22nd September 1922 is hereby varied by striking out of | clause 3a of the said award the following names of further le who have since the 22nd day of September 1922 applied fon v of the original award, namely, Minister for Defence, Navy, Naval Board. Nothing in this variation shall in affect the position of any of the three last-named respondents Department of Defence so far as the employees at the ' Williamstown docks are concerned." OF AUSTRALIA. , the Cockatoo and Williamstown dockyards from the ition of the variation order of May 1923, and he next claims that tk carried on at the Cockatoo dockyard must consequently be to the provisions of the award of June 1921. The opinion President of the Arbitration Court was apparently to the , When in May 1923 he varied the award of June 1921. He |: The Union's representatives claimed that no application 4 » vary the award should be entertained by the Court because the nt of Defence, the applicant, was committing breaches of jhe award by not observing the 44 hours at Cockatoo Island and mstown dockyards. It appears however that both these are under the Prime Minister's Department, and that a tribunal has been appointed to deal with all the disputes "neonnection with the Cockatoo Island and Williamstown dockyards. the Prime Minister's Department nor the Commonwealth "! the shipping tribunal are respondents bound by the award, although they agreed to adopt the recognized standard hours under awards of this Court. Any variation the Court makes in this "application cannot therefore legally alter the hours of work of an lover not bound by the award, namely, the employers of members "yorking at the dockyards named . . . . Itisclear on the admitted "nots that the employers of men working at the docks named are not ly bound by the award the Department of Defence asks the to vary. No breach of the award so far as the docks in ion are concerned has been committed." This opinion does not this Court, which must determine the matter for itself, giving consideration, however, to, and deriving what assistance it can by the opinion of the learned President. 'The June award creates difficulties on its face. It does not purport bind the King in right of the Commonwealth or the Commonwealth who or which employed the plaintiff and those whom he its until the establishment of the Australian Commonwealth ing Board. Naturally the Commonwealth relies on the form of e award as decisive in its favour. But the matter cannot, I think, , disposed of so easily. The award, according to the admission, nds the Ministers for Navy and for Defence, who were the King's plaintiff contends, and I think rightly, that this proviso H- ©. or A. 1924. HILeMaN v. Tue Comson- H.C. or A. 1924. —~ HILiMaN = Tre Common- WEALTH. Starke J HIGH COURT responsible Ministers of State controlling the Departments o Navy and Defence respectively, and also the Naval Board, was a body constituted under the Naval Defence Act and Reg and charged, subject to the control of the Minister, w administration of all matters relating to the naval forces. Noy Cockatoo dockyard belonged at the time of the award to the in right of the Commonwealth, and, though the supreme exe power is vested in the Sovereign, still in practice the King acts advice of his Ministers, and the executive business of the St carried on by the various Government Departments in accord with legislative provisions or the political policy of the day. administration of the Cockatoo dockyard was in the hands 6 Naval Board, subject to the control of the Minister for the N So I take the award to mean that, so far as the Minister fo Navy or the Naval Board controlled or administered the acti carried on at Cockatoo dockyard as the executive officers of King, they should observe the award. It is only as executive of of the King that the Ministers or the Board are bound. They bound, I take it, as the representatives of the King. The a1 fastens upon the officers who actually control the dockyard i name of the King rather than upon the nominal controll King himself. But the award does not purport to, and does n point of law, bind the King or the Commonwealth genera only binds them so far as an activity covered by the a' administered or controlled by the named executive body or off the Naval Board, the Minister for Navy or the Minister for If the activity passes from the administration 'and control named executive officers of State or the named administrativ to other officers of State or other administrative bodies, then, su to any special provision of the Arbitration Act, the award ce operate or at all events does not bind those officers or bodies Commonwealth in their administration or control of the dock This brings me to the history of the administration and com the Cockatoo dockyard. ¥ 'At the time of the award it was administered as part of the ment of the Navy by the Naval Board, subject to the control Majesty's Minister of State for the Navy. About June 19 R.J OF AUSTRALIA. er's Department and placed by Order in Council under the tion of a Board of Control. This was an administrative act, not, so far as I know, based upon any statutory authority. The e in administration was due to a change of policy in connection h the dockyard. It was now to be carried on as a commercial aking in open competition with private firms, instead of , as formerly, used substantially for naval purposes. The en, of course, performed the same functions as before— smiths did work appropriate to coppersmiths, and blacksmiths t appropriate to blacksmiths. In September 1923 the Common- Shipping Act (No. 3 of 1923) was proclaimed. This Act | meorporated the Australian Commonwealth Shipping Board, and sted in it Cockatoo Island and the dockyard thereon, also the ent of the works and establishments on the island. The Board i is largely removed from political control, but it is nevertheless tt organ of the Commonwealth for carrying on the operations cified in the Act. The administration and control of the Cockatoo Jockyard therefore, in June 1921, passed from the Naval Board, the Minister for Navy, and the Minister for Defence so far as he _dministered naval and military matters, and became vested in the e Minister or the Board of Control which was constituted under Order in Council of June 1921. Neither the Prime Minister nor Board of Control was bound by the award. Later, the Cockatoo and the management of the works and establishments on too Island were vested in the Australian Commonwealth jing Board, which is also not bound by the award, and which, ~ apprehend, is the present employer of the plaintiff. fo far as the award is concerned, the plaintiff fails, in my mn, to establish his case. 'But some reliance is placed, I suppose, upon the Arbitration Act "904-1921, sec. 29: " The award of the Court shall be binding on (ba) in the case of employers, any successor, or any assignee t transmittee of the business of a party to the dispute or of a party ound by the award, including any corporation which has acquired °r taken over the business of such a party." I see no reason to 'oubt the identity of the business. It was carried on in the same inistration of the dockyard was transferred to the Prime H.C. oF A. 1924. ~ HiLuMAN v. THe Common- WEALTH. Starke J. H. C. or A. 1924. eae HiLitMan v. THe Common- WEALTH. Starke J HIGH COURT place, by the same staff, doing substantially the same kind But there is, in my opinion, no successor, assignee or tra of the business of a party to the dispute or of a party boun award. Cockatoo dockyard and the business there carried and always have been, in substance, the property of the K right of the Commonwealth, or else of the Commonwealth under whatever control the business has been placed or in wh body it has been vested. And the party to the dispute who is b by the award is and has always been the King or the Commom in respect of the activities carried on by him or it und administration and control of the Naval Board, the Ministi Navy, or the Minister for Defence. Consequently sec. 29 0 Arbitration Act does not, in my judgment, aid the plaintiff im action. The Commonwealth also relied upon an agreement of Febru 1921 as an answer to this action. But if the award of June covered the operations carried on at Cockatoo dockyard since | November 1922, then I cannot see how that agreement dispen with, or could dispense with, the due observance of the award. I am also unable to agree with another contention put fory the Commonwealth : that this action is not maintainable its subject matter has been referred to a Special Tribunal constit under the Industrial Peace Act 1920. This Special Tribunal made any award or determination in the matter, and so long as award of the Arbitration Court stands, I cannot see that a refer to a Special Tribunal can affect the rights of persons entitled to benefit of the award. It may possibly afford ground for stayin action in some circumstances, but certainly not in the circumst of this case, for the Special Tribunal apparently refuses to pro unless the rights of the parties under the award are first determ The result is that I agree with the President of the Arbit Court in thinking that the award of June 1921 did not bi Majesty or the Commonwealth in respect of their operation: Cockatoo dockyard after the administration and control of | operations had been transferred to the Prime Minister's Dep in June 1921, and, a fortiori, after control had been transfer the Australian Commonwealth Shipping Board. OF AUSTRALIA. Ith Shipping Board as a party to this action, but I refused it, for reasons already appearing and also as a matter of discretion. s is not an action in which any indulgence should be shown to plaintiffs. They should be given their rights according to law the pleadings as they stand, and no more. The dockyard has n, to a large extent, carried on to keep the workmen in employ- ment. But, not satisfied with this generous treatment on the part 2) the Commonwealth, the plaintiffs insist upon a claim for overtime, hich, if valid, can only be ascribed, in my opinion, to a misunder- tanding by the Arbitration Court in May 1923, of the effect and operation of the award of June 1921. But, as I agree with the _ opinion of the learned President given in May 1923, this action will be dismissed with costs. Action dismissed with costs. _ From that decision the plaintiff now appealed to the Full Court. The nature of the arguments appear in the judgments hereunder. Piddington K.C. (with him Collins), for the appellant. Bavin AG. for N.S.W. (with him A. L. Campbell), for the Cur. adv. vult. The following written judgments were delivered :— Kwox ©.J. anp Gavan Durry J. In this case the plaintiff on behalf of himself and other members of the Amalgamated Engineering Union employed at the Commonwealth Dockyard, Cockatoo Island, seeks against the Commonwealth of Australia a ition of this Court that, by virtue of an award of the Common- wealth Court of Conciliation and Arbitration No. 113 of 1920, the "ordinary hours of duty for members of the Union employed at the { should not (without payment for the overtime) since 11th ber 1922 have exceeded nor continue to exceed, until such f _ } An application was made to me to add the Australian Common- H.- ©. or A. 1924. w Hitman v. Tae Common- WEALTH. Starke J. H.C. or A. 1924. Hitiman v. THE Common- WEALTH. Knox C5. Gavan Duffy J. HIGH COURT award is varied, 8 hours on each of five days in the week, In that award the "Naval Board," " Minister for Navy" "Minister for Defence " were named as respondents. The leary Judge who tried the case was of opinion that the real party to award was the Commonwealth, but only in so far as it ' administering or controlling the operations of its dockyard by instrumentality of the executive body or officers named as responde ' in the award, and that, this executive body and these officers hayit at all relevant times ceased to administer or control the busin of the dockyard, the Commonwealth was no longer bound in of such business by the provisions of the award. If the Commo wealth is to be regarded as the real respondent, we think it must so only when it is operating through the respondents actually in the award. That being so, we agree with the learned Judge thinking the plaintiff cannot succeed against the Commonwealth a an original respondent to the award, and we agree in the rea which lead him to that conclusion. If, on the other hand, Commonwealth is not the real respondent, the executive body the officers named in the award as respondents must themsely be the real parties to the award. They are not parties to this and, if they were, no declaration could be made against them, they have ceased to administer or control operations at the dockys and did not at any time relevant employ any member of the Un We do not think that the statement of claim makes any cas against the Commonwealth as the successor or assignee or transmit of the business of a party, under sec. 29 (ba) of the Act, nor do ¥ think that such a claim could be supported on the facts. Nothin that has happened since the making of the award has altered position of the Commonwealth so as to give it any greater i in the business carried on at the Commonwealth dockyard had at the time the award was made. Finally, it is said that the parties actually named in the a1 were merely acting as agents for the Commonwealth in ca on the business of the dockyard ; that the agents who subseq el carried on the business were their successors within the meant sec. 29 (ba); that the contracts of those successors, being mad behalf of the Commonwealth, bind the Commonwealth ; and OF AUSTRALIA. 269 as the contracts which they made with the members of the Union H- C. or A- were subject to the provisions of the award, the provisions of the i award bind the Commonwealth. The vice of this argument appears Hitman to us to be that it overlooks the fact that the Commonwealth rx i iliation and Arbitration Act, and the award made under it, deal bccn with actual employers, not with their agents. If the Union has been 's0 unfortunate as to select for respondent, not an employer, but the Gavan butty J. agent of an employer, it cannot obtain an award to bind either principal, or agent, or agent's successor. The award does not affect the agent or the agent's successor because ex hypothesi they are not employing anyone; it does not affect the principal, who is the employer, because he is not a party to the award. Isaacs J. Having to determine this appeal according to strict law, I have no option but to express the opinion that it must fail. T shall have to indicate where, as I view the matter, the strict insistence on the law parts company with fairness. The action was brought by Henry Hillman, as representative of all those members of the Amalgamated Engineering Union (Australian Section) who have been during substantially the last two years employed by the Commonwealth at its dockyard at Cockatoo Island. By the action there is claimed a declaration which, avoiding technical phraseology, is that from 11th November 1922 onwards the maximum normal working week of the members of the Union at the Cockatoo dockyard was 44 hours, and that beyond that they were entitled to payment for overtime. The claim is founded upon Federal award dated 14th June 1921, No. 113 of 1920, which prescribed 44 hours a week for a great number of employers, including " the Naval Board, the Minister for Navy and the Minister for Defence." Admittedly, the Commonwealth, as Tepresented by the Naval Board, was then bound to a 44 hours maximum. Admittedly also, that provision as regards the Cockatoo dockyard has never been technically altered, so that, if at the present moment the dockyard were under the control of the Naval Board, there would be no answer to the claim. But two answers have been raised : one is that the Naval Board has not been in control since 29th June 1921 ; and the other is that, though the award provision H. C. or A. 1924, Yw Hitiman v. THE Common- WEALTH. Isaacs J. HIGH COURT for 44 hours has not technically been eliminated as to Cockat dockyard, yet it would have been eliminated in May 1923 but fo some pending proceedings before another tribunal. The facts are these :—By Order in Council of 16th June 1921 a board of control, called the " Shipbuilding Yards Board of Cont and consisting of three named persons, was appointed to superyis and control the Cockatoo dockyards. This was not under a statute, but was a mere executive act. No specific Department State was named by the Order in Council. In fact the new boan was placed under the direction of the Prime Minister's Department But the point to be observed is that, as Starke J. observes in h judgment, there is " no reason to doubt the identity of the busin It was carried on in the same place, by the same staff, doin substantially the same kind of work." At the time of the transfer of control to the new Board, that 29th June 1921, the original award was in operation as from 29 May 1921 and was prescribed to " continue in force until the end 1923 or such earlier date as the claimant is guilty of a strik Notwithstanding the change of control, which really means nothin, so far as fair working conditions to the men were concerned, th Commonwealth, represented by the new Board, for some time sti observed the award in respect of the 44 hours—which, to my m was practically an admission that the appointment of a nel manager did not alter the cardinal fact that it was the Commo wealth that was bound by the name of its Naval Board, and ¥ plain intimation to the men that the change of managers did not change of: treatment. This recognition of its true responsibilit continued until 11th November 1922. By a variation of the award made on 22nd September 1922, ordered to take effect next day, the maximum hours under the aw: were altered to 48. But this was in respect only of employers oth than the Naval Board, the Minister of Navy and the Minister Defence and some twelve others. In fact no application whate\ was made by the Commonwealth at that time to vary the 44 ht maximum, although, as stated, the Commonwealth had 1 questioned the award of June 1921 by reason of the change of contt0 And, further, even after the variation, which applied from 25 35 CLR.) OF AUSTRALIA. September 1922, to other employers, the Commonwealth at first "-C. oF A. raised no objection as to any difference of responsibility by reason of the new Board of Control. The express exception of the Common- wealth from the variation to 48 hours by its names " the Navy Board, the Minister for Navy and the Minister for Defence " still stood, and whatever members of the Union were employed by it through those instrumentalities were entitled by law to a 44 hour maximum. That condition of the award continued until May 1923, when a new variation was made. At this date, an application had been made on behalf of the Naval Board, the Minister for Navy and the Minister for Defence, and another respondent, to vary the hours from 44 to 48. The application was granted, and ordered to operate as from 19th April 1923. As from that date, 19th April 1923, the Commonwealth was entitled by law to require of all its employees, members of the Union, in the three named branches of its service 48 hours a week instead of 44. But up to that date for those Departments the legal maximum was only 44 hours. In the mean- time, that is, as from 11th November 1922, the Commonwealth, acting by the new Board of Control for the Cockatoo dockyard, had itself intimated that it raised the maximum to 48 hours a week. In January 1923, that is, two months before the latest application for variation, the men disputed the right of the Commonwealth 80 to raise the maximum while the award stood unaltered, and they claimed overtime payment. This claim was refused, and the claimants were invited to have the dispute determined by the Special Tribunal under the Industrial Peace Act. Briefly, that was declined on the ground that a dispute respecting the rights of parties under an award of the Commonwealth Court of Arbitration was not a dispute of the nature intended to be decided by the Special Tribunal referred to. On the other hand, the new Board of Control claimed that, by virtue of an agreement made between the Union and the Common- wealth in February 1921—that is, months before the original award —it was agreed to submit industrial disputes to a Special Tribunal. The reply of the employees to this—a reply which appears to me unanswerable—was that after that agreement the industrial rights of the parties had been determined by a Federal award, and that award governed, so far as it applied, and should be obeyed. The w HILeman v. THe Common - H. C. or A, 1924. ww HiILuMAN v. THE Common- WEALTH. Isaacs J. HIGH COURT Lge. matter, however, was brought before the Special Tribunal, but decision has been given, and, as the agreement between the pa under which the dispute was so referred was expressed to endur only till October 1923, the reference has been allowed to drop. controverted period of overtime is divisible into three section namely, (1) 11th November 1922 to 19th April 1923, when variation was made affecting the three Commonwealth organs; (2) 19th April 1923 to September 1923, when the Act No. 3 of 1923 creating the new Commonwealth Shipping Board, was proclaimed; and (3) since Ist September 1923. , Before this Court of appeal, the appellants have abandoned their claim in respect of the second and third sections. The second was the subject of some observations by my brother Starke. As to this, the abandonment has been on the ground that, whatever might be | the legal rights of the appellants for that time, they deferred to view expressed in this Court that Powers J. in May 1923 woul if then entirely free from circumstances he mentioned, have then included the Cockatoo dockyards in the reversion to 48 hours, thus placing the men working there in the same position as the men working under the Naval Board, the Minister for Navy and the Minister for Defence. As to the third, the abandonment was as a defendant and the inability to alter the refusal of Starke J. to add that board to the action. But there is left the first period, namely, 11th November 1922 to 19th April 1923. ; The question therefore arises: Was the Commonwealth duri that period legally liable to pay to the men at the Cockatoo docky: overtime on the same basis as it was then bound to pay men doit precisely the same class of work under the Naval Board, the Min for Navy and the Minister for Defence ? That depends, as a mat of strict law, on the effect of sec. 29 of the Commonwealth Concilic and Arbitration Act upon the award. Starke J. has held that "the party to the dispute who is b by the award is and has always been the King or the Commonwea in respect of the activities carried on by him or it under administration and control of the Naval Board, the Minister Navy or the Minister for Defence." And the learned Justice adds: C.L.R.) OF AUSTRALIA, 273 "Consequently sec. 29 of the Arbitration Act does not, in my judg- H- ©. or A. ment, aid the plaintiff in this action." I entirely agree with that '9**- view as to the Commonwealth being bound by the names referred Hinuman to. Itis not at all like a private individual employer whose manager, Tir for instance, is named as respondent. In that case there is a distinct pst and separate individuality, the identification of principal and agent depending on the existence of extraneous facts not disclosed by the award. But in this it is the law, the Constitution itself, which without more identifies the Commonwealth as the employer and recognizes that the " Naval Board, the Minister for Navy or the Minister for Defence "' cannot possibly, except as convenient names for the Commonwealth, be the employers. A moment's consideration Isaacs J. of the consequences of the opposite doctrine will demonstrate that. Reluctantly also, I feel bound to agree with the further view of Starke J. that this identification is limited to the activities of the Commonwealth carried on by the named representatives. As I put in argument, even though the original award remained unvaried, if members of the Union were employed in the Home and Territories Department, say, at Canberra, there would be no award obligation as to them. I therefore think that the judgment appealed from rightly deter- mined according to law that the Commonwealth plea for immunity— even before the express variation, that is, until 19th April 1923— must be sustained. When the Prime Minister's Department by the new Board of Control superseded the Naval Board, the Commonwealth—though no alteration was made in actual working conditions and though other men under the Naval Board and the Minister for Navy and the Minister for Defence were still entitled to a maximum of 44 hours— was entitled by its own voluntary act to escape the obligation that its own Federal Court had declared to be a just and proper industrial condition for its workmen in the dockyard. At this point it is that I think law parts company with justice. The appeal must be dismissed, I agree ; but as to the first period it is, as I view the position, on technical grounds only. It was admitted in argument on behalf of the Commonwealth that if the award, instead of using the words "the Naval Board," had H.C. or A. used the words "the Commonwealth in respect of operations 1924. Hitman v. THE Common- WEALTH. Isaacs J. HIGH COURT carried on by the Naval Board," there would have been no answer to the claim for this period. It is difficult to believe the Commonwealth is taking shelter behind such a technicality, because of an administrative Order in Council merely changing the place of control. However, as a Judge, I have to give effect to the point. I would add that, if the main contention of the Commonwealth on this appeal were correct, I should be of opinion that the Comm wealth would fail altogether up to Ist September 1923. That contention is that the " Naval Board," and not the Commonwealt must be recognized as originally the "' employer." If that were so, then the Commonwealth, ex hypothesi, not being technically the employer at first, technically became so afterwards when the Nay 1 Board was replaced by the Commonwealth's managing agents, called the Shipbuilding Yards Control Board, which took charge for the Commonwealth, and retained the position until 1st September 1923. It is only by rejecting the Commonwealth's primary legal contention that it succeeds at all as to the claim up to Ist September 19: because, as in my view the Commonwealth was itself bound as the employer to begin with—though only to a limited extent,—it could not afterwards become its own successor. ; a Appeal dismissed with costs. Solicitors for the appellant, Sullivan Brothers. Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth. i Blas