R v Kelly; Ex parte - [1955] HCA 20

THE QUEEN Ex PARTE THE COMMONWEALTH PUBLIC SERVICE

CLERICAL ASSOCIATION AND ANOTHER. Industrial Law (Clth.)-Public Service AssociationGeneral secretary-Non-

practising barrister-Application to Chief Judge of Court of Conciliation and Arbitration-Right of audience-" Counsel or solicitor '-Duty to hear- SYDNEY,

Refusal-Mandamus-Conciliation and Arbitration Act 1904-1952 (No. 13 March 29;

of 1904-No. 34 of 1952)-Public Service Arbitration Act 1920-1952 (No. April 15.

28 of 1920-No. 36 of 1952), SS. 15c, 19.

Section 19 of the Public Service Arbitration Act 1920-1952, which provides that no person or organization shall in any proceeding under this Act be represented by counsel or solicitor, disqualifies counsel or solicitor from appear- ing in any such proceeding only in his professional capacity on behalf of a client. Accordingly where a non-practising barrister employed exclusively by an industrial organisation as its general secretary sought to appear on its behalf as such general secretary the section had no application.

On an application to the Chief Judge of the Commonwealth Court of Conciliation and Arbitration for leave to appeal against a determination of the Public Service Arbitrator all parties who appeared or were represented before the Public Service Arbitrator are entitled to be heard. Accordingly where the Chief Judge, being bound to decide the application in accordance with law and not in accordance with an erroneous interpretation of S. 19, refused to hear an organization by its general secretary, a non-practising

Held, mandamus would lie. MANDAMUS.

In this matter the prosecutors were granted by Fullagar J. an order nisi for a writ of mandamus directed to the Chief Judge of the Court of Conciliation and Arbitration commanding him upon the hearing of an application in which the Commonwealth Public Service Board was applicant and the Australian Third Division

92 CLR 11

Telegraphists and Postal Clerks' Union and others were respondents for leave to appeal pursuant to S. 15c of the Public Service Arbitra- tion Act 1920-1952 against a determination of the Public Service Arbitrator made on 17th February 1955 to hear the prosecutor the Commonwealth Public Service Clerical Association by its general secretary the prosecutor George William Francis Smith upon the grounds that the prosecutor association was entitled to be heard as a party interested in the application for leave to appeal and that the prosecutor Smith did not seek to represent the association in the capacity of counsel or solicitor.

The rules of the Commonwealth Public Service Clerical Associa- tion provided by r. 51 that the general secretary of the association should be its registered officer for the purposes of the Conciliation and Arbitration Act 1904-1952 and of the Public Service Arbitration Act 1920-1952 and should be empowered to act on behalf of the association.

Further facts appear in the judgment of the Court hereunder. R. M. Eggleston Q.C. (with him D. Corson), for the prosecutors. The real question is whether counsel" in S. 19 of the Public Service Arbitration Act 1920-1952 means counsel practising as such or whether it means a person having the legal…

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 Kelly; Ex parte

Details

AGLC: R v Kelly; Ex parte [1955] HCA 20
Case: [1955] HCA 20
Decision Date: 15 April 1955

CaseChat Overview and Summary

The prosecutors, the Commonwealth Public Service Clerical Association and its general secretary, George William Francis Smith, sought a writ of mandamus directed to the Chief Judge of the Commonwealth Court of Conciliation and Arbitration. The dispute arose when the Chief Judge refused to hear the Association by its general secretary in an application for leave to appeal against a determination of the Public Service Arbitrator. The Association argued that its general secretary, a non-practising barrister, was not appearing in his professional capacity as counsel or solicitor, and therefore Section 19 of the Public Service Arbitration Act 1920-1952 did not prohibit his representation.

The central legal issue before the High Court of Australia was the interpretation of Section 19 of the Public Service Arbitration Act 1920-1952, which states that "no person or organization shall in any proceeding under this Act be represented by counsel or solicitor." The Court was required to determine whether this prohibition extended to a non-practising barrister employed exclusively by an industrial organisation as its general secretary, appearing on behalf of that organisation in his capacity as general secretary. A further issue was whether mandamus was an appropriate remedy to correct the Chief Judge's refusal to hear the Association.

The Court reasoned that Section 19 disqualifies counsel or solicitors from appearing only in their professional capacity on behalf of a client. It held that the general secretary, Mr. Smith, was not acting as counsel or solicitor in his professional capacity but as an officer of the Association. His role was that of a servant or agent of the organisation, distinct from the professional relationship of counsel and client. The Court found that the Chief Judge had misinterpreted Section 19 by refusing to hear the Association through its general secretary. Furthermore, the Court determined that mandamus would lie because the regulations governing applications for leave to appeal implied a right to be heard for parties who appeared before the Public Service Arbitrator, and the Chief Judge had a duty to consider such opposition according to law, not an erroneous interpretation of the statute.

While the Court found that mandamus would lie, it ultimately made no order, stating that it was unnecessary as the Chief Judge would likely give effect to the Court's views.

Orders