R v Kelly; Ex parte

The applicant, R, sought a writ of mandamus directed to the Commonwealth Court of Conciliation and Arbitration, constituted by six judges, to compel it to continue hearing an industrial dispute. The dispute had been partially heard when one of the six judges voluntarily withdrew from the proceedings. The core of the dispute concerned the jurisdiction of the remaining five judges to continue the hearing.

The central legal issue before the High Court was whether the Commonwealth Court of Conciliation and Arbitration, when constituted by six judges for the hearing of an industrial dispute, had the jurisdiction to continue that hearing with only five judges following the voluntary withdrawal of one of its members. This question turned on the interpretation of sections 24(1), 24(4), and 24(5) of the *Conciliation and Arbitration Act 1904-1952* (Cth), particularly the phrase "unable to continue to sit".

The High Court held that the withdrawal of a judge, even if voluntary, did not render the remaining judges "unable to continue to sit" within the meaning of section 24(4) of the Act. The Court reasoned that the Act contemplated a situation where a judge might be incapacitated or otherwise unable to complete their duties, but not a voluntary cessation of participation. Therefore, the remaining judges retained their jurisdiction to continue the hearing.

The application for a writ of mandamus was dismissed.