R v Commonwealth Court of Conciliation and Arbitration; Ex parte

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.