R v Lydon; Ex parte Cessnock Collieries Ltd [1960] HCA 19

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. R v Lydon; Ex parte Cessnock Collieries Ltd [1960] HCA 19

ORDER Order nisi for a writ of prohibition discharged with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 6 Dixon C.J., McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ.

This is an order nisi for a writ of prohibition directed to Mr. Matthew Lydon, a gentleman constituting a local coal authority appointed under the Coal Industry Act 1946-1957 Cth and the Coal Industry Act 1946-1951 N.S.W.. The order nisi calls upon the respondents to show cause why a writ of prohibition should not issue prohibiting them from further proceeding upon an order of the local coal authority made on 14th September 1959. The parties to show cause include not only Mr. Lydon as the authority but the Australian Coal and Shale Employees' Federation. The prosecutor is Cessnock Collieries Limited. The order of the local coal authority which it is sought to prohibit is expressed in a very informal manner. It is involved in the concluding words of some reasons given by Mr. Lydon for granting an application made by the Australian Coal and Shale Employees' Federation. The application itself was informally made by a letter to Mr. Lydon. The tenor of the application was that all employees engaged on preparatory work at the colliery who have otherwise qualified should each be paid the attendance allowance for the pay periods involved. Mr. Lydon concluded that the application must succeed and said:—"I so order. I order accordingly."

The expression "attendance allowance" arises from an order of the Coal Industry Tribunal made on 14th December 1954, under the Coal Industry Acts (Commonwealth and State). That order directs that each member of the Australian Coal and Shale Employees' Federation who works for the ten ordinary days comprising a pay period shall in respect of that period, if the colliery at which he works has been in production on each of the said days, be entitled (in addition to his ordinary earnings) to payment as for a shift at the appropriate rate for him. The additional payment has been called an attendance allowance. That or a similar payment had been in operation for some time before 1954. It appears from a pronouncement made on 24th September 1951 by the Coal Industry Tribunal that some special situations had given rise to difficulties concerning the payability of attendance allowance. In that pronouncement the tribunal said, repeating what had been said by a board which preceded the tribunal, that in relation to all disputes settlement thereof without reference to an industrial authority is desirable and that that is particularly the position in connexion with the "attendance allowance" orders. The board had expressed the view that the parties should use every endeavour to settle in the colliery office questions arising under the orders, and had observed that if this procedure were adopted the practical appli%33cation of the orders should produce little difficulty. "However, if the parties on a particular question are unable to reach agreement the processes of arbitration are always available to them." In spite of this counsel, the tribunal found itself confronted in 1951 with a number of questions as to attendance allowance and in the pronouncement mentioned the tribunal set out to deal with them. The third of these questions was whether persons should be granted the attendance allowance when work is proceeding at the mine during the period of sinking, winning out or development of that mine. The tribunal dealt with the question so to speak indirectly as appears by the following answer: "A. The parties have agreed that the following ruling given by the Central Reference Board on 3rd April last is applicable: "Where a shift is taken up in whole or in part for the removal of overburden such shift shall be regarded as a production shift. The position is identical in the case of an underground mine when developmental work is being carried out prior to the actual production of coal"." It will be noticed that this agreed answer appears to take but little heed of the difficulties involved in the words "in production on each of the said days" which appear in the paragraph quoted from the order of 14th December 1954. Indeed it may be regarded as an extension of the application of that order. However that may be, an analogous difficulty seems to have arisen concerning work done in the preparation of a colliery for work and it is the attempt of Mr. Lydon to solve that difficulty that has given rise to the present proceedings. In the Cessnock No. 1 Colliery which is owned by Cessnock Collieries Ltd., the prosecutor in this application for prohibition, no members of the Australian Coal and Shale Employees' Federation were employed between 23rd January 1959 and 6th July 1959. But from 6th July 1959 to 6th October 1959, and also from 21st October 1959 to 9th November 1959 the company employed in the mine a number of employees including members of the federation on work in the colliery for the purpose of preparing it for the use of a mining machine known as a "continuous miner". Apparently the machine is used for the winning of coal. The work was described as preparatory work. Those employed in doing it sought payment of the attendance allowance. The claim was contested by the mine owner. The question was brought before Mr. Lydon as the local coal authority after this work had gone on for some time, namely by the application which was dated 8th September 1959, and he decided it on 14th September 1959. By some mistake the actual decision pronounced by Mr. Lydon was headed, not with the name of Cessnock Collieries Limited who are the owners of the mine, but with the name of the Caledonian Collieries Ltd. In form, at all events, it would therefore appear as if the order was not binding on Cessnock Collieries Ltd. That company, however, obtained an order nisi for prohibition on the footing that it had a sufficient interest to entitle it to prohibition.