R v Commonwealth Court of Conciliation and Arbitration; Ex parte - [1950] HCA 29

81 CLR 229

COMMONWEALTH COURT OF CONCILIATION AND

ARBITRATION AND OTHERS Ex PARTE FEDERATED CLERKS UNION OF AUSTRALIA,

NEW SOUTH WALES BRANCH, AND ANOTHER. Industrial Arbitration (Cth.)-Disputed elections in industrial organizations-

Application for inquiry into alleged irregularities in election-Form of applica- ionJurisdiction-Procedure-Conditions precedent to inquiry-Writ of pro- hibitionCircumstances in which writ will lie-Statute-Retrospective operation Commonwealth Conciliation and Arbitration Act 1904-1949 (No. 13 of 1904 -No. 28 of 1949), SS. 32, 34, 40, Part VI., Div. 3.

Part VI., Div. 3, of the Commonwealth Conciliation and Arbitration Act 1904-1949, which Division came into operation on 12th July 1949, provided, by S. 96A (1), that, where a member of an organization registered under the Act, or a person who, within the preceding period of twelve months, had been a member of such an organization, claimed that there had been an irregularity in or in connection with an election for an office in the organiza- tion, he might lodge an application for an inquiry by the Commonwealth Court of Conciliation and Arbitration into the matter by S. 96A (2), that "an application under this section shall-(a) be in writing in accordance with the prescribed form (b) be lodged with the Industrial Registrar before the completion of the election or within such time after the completion of the election as is fixed by or under the regulations; (c) specify the election in respect of which the application is made and the irregularity which is claimed to have occurred, and state the facts relied on in support of the application; and (d) be accompanied by a statutory declaration by the applicant declaring that the facts stated in the application are, to the best of the applicant's knowledge and belief, true'; by S. 96B (1), that, " where an application under the last preceding section is lodged with the Industrial Registrar, he shall-(a) if he is satisfied-(i) that there are reasonable grounds

81 CLR 230

for an inquiry into the question whether there has been an irregularity in or in connection with the election, which may have affected or may affect the result of the election and (ii) that the circumstances of the matter justify an inquiry by the court under this Division, grant the application and refer the matter to the court" by S. 96B (6) that ' an act or decision of the Industrial Registrar under this section shall not be subject to appeal to the Court"; and, by S. 96c (1), that, " "upon the reference of a matter to the Court under the last preceding section, the inquiry shall be deemed to have

(1) By the whole Court, that Part VI., Div. 3, applies to an election com- pleted before 12th July 1949, the persons elected at which hold office after the coming into operation of the Division.

(2) By Latham C.J., McTiernan, Webb and Kitto JJ. (Fullagar J. dissent- ing), that, where the Industrial Registrar had purported under S. 96B (1) (a) to grant an application as to which there had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Commonwealth Court of Conciliation and Arbitration; Ex parte [1950] HCA 29
Case: [1950] HCA 29
Decision Date: 2 August 1950

CaseChat Overview and Summary

The applicants, the Federated Clerks Union of Australia, New South Wales Branch, and its secretary, sought a writ of prohibition against the Commonwealth Court of Conciliation and Arbitration, a judge of that court, the Industrial Registrar, and a union member, Claude Bernard Grace. The dispute concerned an application by Mr. Grace for an inquiry into alleged irregularities in an election for union offices, the result of which was declared on 27 June 1949. The applicants sought to prevent the Arbitration Court from proceeding with the inquiry, arguing that the relevant provisions of the Commonwealth Conciliation and Arbitration Act 1904-1949, which came into operation on 12 July 1949, did not apply to an election completed before that date, and that the application made to the Industrial Registrar was invalid, thus depriving the court of jurisdiction.

The High Court was required to determine two primary legal issues. Firstly, whether Division 3 of Part VI of the Commonwealth Conciliation and Arbitration Act 1904-1949, which governs inquiries into disputed elections, applied to an election that had been completed before the amending Act came into force. Secondly, the court had to consider whether the application made by Mr. Grace to the Industrial Registrar satisfied the statutory requirements of section 96A(2) of the Act, and if not, whether the Industrial Registrar's subsequent reference of the matter to the court was valid, thereby conferring jurisdiction on the court to conduct an inquiry.

A majority of the High Court (Latham C.J., McTiernan, Webb, and Kitto JJ.) held that while Division 3 of Part VI of the Act applied to elections completed before its commencement if the elected office-holders were still in office at that time, the application made by Mr. Grace was fundamentally flawed. The court found that the summons issued by the Registrar, which was relied upon as the application, did not comply with the mandatory requirements of section 96A(2), including being in the prescribed form, specifying the irregularities and facts relied upon, and being accompanied by a statutory declaration that the facts stated in the application were true. Consequently, the Industrial Registrar had no power to grant the application or refer the matter to the court, and the court lacked jurisdiction to proceed with the inquiry. The writ of prohibition was therefore made absolute against the court and the judge, but discharged as against the Industrial Registrar, who had no further role to play. Fullagar J. dissented on the first ground, finding that the Division did not apply to pre-commencement elections.

Orders