R v Foster; Ex parte

The case involved an application for a writ of prohibition by the Commonwealth Steamship Owners' Association and others against the Honourable Alfred William Foster, a judge of the Commonwealth Court of Conciliation and Arbitration. The prosecutors sought to prohibit the judge from proceeding with an order made under Part XA of the Navigation Act 1912-1953, which concerned the manning of ships purchased overseas for Australian coastal trade and ships sold by Australian owners for delivery overseas.

The central legal issue before the court was whether the judge had the jurisdiction to make the order, specifically whether the dispute regarding the manning of these ships constituted an "industrial dispute" or involved an "industrial matter" as defined by the Navigation Act. The prosecutors argued that the judge's order was made without jurisdiction because no industrial dispute extending beyond one State was involved, and the matter did not concern an industrial matter as defined by the Act.

The court reasoned that the definition of "industrial matter" in section 405A of the Navigation Act referred specifically to matters relating to salaries, wages, rates of pay, or other terms and conditions of service or employment. The judge's order, which dictated whether Australian shipowners could use overseas crews for voyages to and from Australia, did not fall within this definition. While the refusal of seamen to man a ship might be industrial action, the court found that this action was a consequence of a dispute about the shipowners' policy of manning, rather than a dispute about the terms and conditions of employment itself. Therefore, the court concluded that the subject matter of the judge's order was not an industrial matter.

The court held that there was no jurisdiction to make the order and accordingly granted the writ of prohibition, dismissing the appeal.