Courts—Commonwealth Industrial Court—Superior court of record—Power to make restraining order pending hearing—Inherent jurisdiction. Conciliation and Arbitration (Cth)—Commonwealth Industrial Court—Superior court of record—Jurisdiction—Power to make restraining order pending hearing—Property of registered organization—Inherent jurisdiction—Conciliation and Arbitration Act 1904-1970 (Cth), ss. 98, 141 (1)*.
Decisions
June 7. The following written judgments were delivered : - BARWICK C.J. In my opinion, the Commonwealth Industrial Court had no jurisdiction to make the ex parte order, made in this case, that until the hearing of a current application under s. 141 of the Conciliation and Arbitration Act 1904-1970 (Cth) the prosecutor be restrained from withdrawing moneys from its bank accounts or transferring moneys or securities belonging to it to any person or organization except moneys reasonably required for the ordinary daily functioning of the prosecutor. I have had the advantage of reading the reasons for judgment prepared by my brother Menzies for reaching that conclusion. I agree with those reasons and have nothing to add to them. The order nisi for prohibition in each case should be made absolute. (at p5)
McTIERNAN J. These orders nisi concern interlocutory orders made on applications by the claimants in two proceedings brought by them respectively under s. 141 of the Conciliation and Arbitration Act 1904-1970 (Cth) (the Act). The present applicants are, in the case of each order, respondents in those proceedings respectively. It is sufficient to dispose of each order nisi to determine that to which Mr. W. G. Forbes is a respondent. (at p5)
2. The short question to be decided is whether on an application ex parte by a claimant in proceedings under s. 141 the Commonwealth Industrial Court has jurisdiction to grant an injunction to preserve matters in status quo so that the relief claimed may be effective if granted at the trial. The Court is declared by s. 98 of the Act to be a "Superior Court of Record". It is argued that this declaration carries with it a formal investing of the Court with power to grant the equitable remedy of injunction. I think that this is an exaggeration of the scope and intention of s. 98. To support this view I refer to a passage in Modern Equity by Hanbury, 5th ed. (1949), at p. 664. Referring to a change made by the Common Law Procedure Act, 1854 (U.K.) the learned author says that "prior to 1854 courts of law could not grant injunctions at all." There is no general grant of jurisdiction to administer equitable remedies to be found in the provisions of the Conciliation and Arbitration Act. Regulation 46 of the Conciliation and Arbitration Regulations cannot extend the jurisdiction of the Court under s. 141 so as to enable it to make either order which is here in question. (at p5)
3. In my opinion the word "order" in…
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 Forbes; ex parte Bevan [1972] HCA 34
Case
[1972] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application for prohibition brought by the applicant, Bevan, against the respondent, Forbes, who was a magistrate. The dispute concerned the magistrate's refusal to grant an adjournment of proceedings in the Magistrates' Court, which Bevan argued prevented him from obtaining legal representation and thus rendered the subsequent conviction unfair.
The central legal issue before the High Court was whether the magistrate had erred in law by refusing the adjournment. Specifically, the court had to determine if the refusal constituted a failure to afford the applicant a reasonable opportunity to be heard, thereby vitiating the proceedings and justifying the grant of prohibition.
The High Court held that the magistrate's refusal to grant an adjournment was an error of law. The court reasoned that a party has a fundamental right to legal representation, and a magistrate must provide a reasonable opportunity for this right to be exercised. In this instance, the magistrate's inflexible approach to the adjournment request, without adequately considering the applicant's circumstances and the importance of legal representation, amounted to a denial of natural justice. The principles of procedural fairness, which underpin the administration of justice, required the magistrate to grant the adjournment to allow the applicant to secure legal advice and representation.
Consequently, the High Court made absolute the order nisi for prohibition, quashing the conviction and remitting the matter for rehearing.