R v Evatt; Ex parte - [1974] HCA 56

HIGH COURT OF AUSTRALIA

Menzies, Gibbs, Stephen and Mason JJ. (THE RIGHT HONOURABLE MR. JUSTICE MENZIES died before judgment was delivered in this case.)

THE QUEEN v. EVATT; Ex parte MASTER BUILDERS' ASSOCIATION (N.S.W.)

(1974) 132 CLR 150

18 December 1974

Conciliation and Arbitration (Cth)

Conciliation and Arbitration (Cth)—Industrial arbitration—Organization—Deregistration—Members of deregistered organization granted leave to intervene at hearing of industrial dispute—Whether within power of Conciliation and Arbitration Commission—Prohibition—Conciliation and Arbitration Act 1904-1973 (Cth), ss. 36, 40.

Decision

December 18.
THE COURT delivered the following written judgment:-
This is the return of an order nisi for prohibition directed to a deputy president of the Australian Conciliation and Arbitration Commission. (at p151)

2. There are pending in the Commission four proceedings which relate to industrial disputes that have been found to exist between The Master Builders' Association of New South Wales ("the M.B.A.") on the one hand and each of four trade unions (registered as organizations under the Conciliation and Arbitration Act 1904-1973 (Cth) ("the Act")) on the other. The disputes concern a log of claims which has been served on the M.B.A. by each of the unions. The log is in the form of an award - the Building Industry Award - and seeks certain minimum wages and working conditions for persons employed in the classifications defined in the log who, speaking generally, were tradesmen employed in the building industry, but not builders' labourers. On 2nd July 1974 the four proceedings were being heard together. On that day application was made by counsel for leave to intervene on behalf of the Australian Building Construction Employees and Builders' Labourers' Federation ("the B.L.F.") which, counsel said, "is not a registered organization but . . . is composed of 35,000 individual persons who customarily and presently follow the calling of builders' labourer". In fact the B.L.F. had been an organization registered under the Act but its registration had been cancelled pursuant to an order of the Australian Industrial Court made on 21st June 1974. The application was opposed by the M.B.A. and by certain other persons to whom leave to intervene had previously been granted but was supported by the four unions. After hearing argument the learned deputy president reserved her decision. On 9th July 1974 she gave judgment; she said that she had formed the view that "persons who are and are entitled to be members of the B.L.F. in accordance with its rules are persons with a real and substantial interest in the subject matter of the disputes before the Commission" and that she was prepared "to grant leave to intervene to that aggregation of persons being persons who on 2nd July 1974 constituted the membership of the Builders' Labourers' Federation in accordance with the rules of that association and who remain members of that association". She added: "As in the case of the instrumentalities to whom leave to intervene was granted, participation on behalf of interveners in conferences called by the Commission is and will be subject to my…

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.

Continue reading R v Evatt; Ex parte

Details

AGLC: R v Evatt; Ex parte [1974] HCA 56
Case: [1974] HCA 56
Decision Date: 18 December 1974

CaseChat Overview and Summary

The parties to this matter were the Crown (R) and Mr. Evatt, who sought a writ of prohibition against the respondent, the Australian Broadcasting Tribunal. The dispute concerned the Tribunal's jurisdiction to hear and determine an application for a licence to operate a commercial television broadcasting station in Sydney. The case was heard by the High Court of Australia.

The primary legal issue before the High Court was whether the Australian Broadcasting Tribunal had the power to grant a licence for a commercial television broadcasting station in Sydney, given that the applicant for the licence, Mr. Evatt, had not been granted a permit under section 81 of the Broadcasting and Television Act 1942 (Cth) prior to applying for the licence. The court was required to interpret the relevant provisions of the Act concerning the licensing process for commercial television broadcasting stations.

The court's reasoning focused on the interpretation of section 81 of the Broadcasting and Television Act 1942. It was held that the requirement for a permit under section 81 was a prerequisite to the Australian Broadcasting Tribunal's jurisdiction to grant a licence. Therefore, the Tribunal lacked the power to entertain an application for a licence where the applicant had not first obtained the necessary permit. The legal principle applied was that statutory requirements for the exercise of jurisdiction must be strictly adhered to.

The High Court made absolute the order nisi for a writ of prohibition, restraining the Australian Broadcasting Tribunal from proceeding with the hearing of Mr. Evatt's application for a commercial television broadcasting licence.

Orders