Industrial Law (Cth)—Conciliation and Arbitration—Registered organizations—Rules—Requirement of compliance with Conciliation and Arbitration Act and regulations—Power of Industrial Court to declare non-compliance—Declaration—Whether effective from date of order or date of commencement of proceedings—Requirement of direct election of officers by rank and file—Period of grace allowed within &hich rules to be made to conform—Rules required to provide for control of committees by members—Non-complying rules—Action commenced within period of grace for declaration that rules fail to comply—Amendment of Act during hearing—Officers required to be elected either by direct voting system or collegiate electoral system—Further period of grace to achieve conformity—Declarations by Industrial Court that rules did not comply and elections invalid—Prohibition—Conciliation and Arbitration Act 1904 (Cth), ss. 4, 133, 140 (1) (a)—Conciliation and Arbitration Amendment Act (No.2) 1976 (Cth)—Conciliation and Arbitration Regulations, reg. 115 (1) (d) (v). * Section 4 defined the "Direct voting system" and "Collegiate electoral system". The definitions are set out in the judgment of Mason J., atp. 493 post.
Decisions
1978, May 19. The following written judgments were delivered. - BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Mason. I agree with his conclusion that the order nisi for prohibition should be made absolute. I agree with the reasons he expresses for the conclusion that in the circumstances the Australian Industrial Court exceeded its jurisdiction in making the orders which it made. I also agree generally with the reasoning of my brother Mason in his examination of the provisions of the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act"), and particularly as amended by Act No. 117 of 1976, though I prefer myself not to express any concluded view as to whether or not the rr. 16 (1) and 16 (7) of the Federated Clerks' Union of Australia ("the Union") provide a one-tier collegiate electoral system within the meaning of s. 133 (1) (a) of the Act as amended. It suffices, in my opinion, that for the reasons assigned by my brother Mason, the Union still has a period of grace in which to amend its rules should they be disconformable to the requirements of the Act as amended, and that for that reason there was no justification for the order as to their invalidity made by the Australian Industrial Court. (at p485)
2. I would make an order for prohibition in respect of all the orders made by the Australian Industrial Court. (at p486)
STEPHEN J. I have had the advantage of reading the judgment of my brother Mason. I agree that for the reasons there appearing the order nisi for prohibition should be made absolute. (at p486)
MASON J. The Federated Clerks' Union of Australia ("the Union") is an organization of employees registered under the Conciliation and Arbitration Act 1904, as amended ("the…
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 Dunphy; Ex parte Maynes [1978] HCA 19
Case
[1978] HCA 19
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a writ of prohibition brought by Maynes against R (the Crown) in the High Court of Australia. The applicant sought to prohibit the respondent from proceeding with a trial on charges of conspiracy to defraud and conspiracy to obtain by false pretences. The dispute arose from allegations that the applicant and others had engaged in a scheme to defraud the Commonwealth by obtaining financial assistance under the Dairy Industry Assistance Act 1970 (Cth).
The High Court was required to determine whether the indictment preferred against the applicant was valid and whether the trial judge had erred in law by refusing to quash the indictment. Specifically, the Court considered whether the indictment sufficiently particularised the alleged conspiracies and whether the evidence presented at the committal hearing was capable of supporting a conviction for the offences charged. A key issue was whether the indictment, which alleged a conspiracy to defraud the Commonwealth, adequately identified the nature of the fraud.
The Court, in a joint judgment, held that the indictment was defective. It reasoned that a charge of conspiracy to defraud must specify the particular fraudulent means by which the defrauding was to be effected. Simply alleging a conspiracy to defraud the Commonwealth, without detailing the fraudulent conduct, was insufficient to inform the accused of the case they had to meet. The Court applied the principle that criminal indictments must be sufficiently certain to allow the accused to prepare their defence and to prevent them from being tried twice for the same offence. The Court found that the indictment failed to meet this standard.
Consequently, the High Court made absolute the order nisi for a writ of prohibition, directing that the Crown be prohibited from proceeding with the trial on the indictment as presented.