Constitutional Law (Cth)—Coal Industry Tribunal—Order directing payment of attendance allowance—Pronouncement as to meaning of production shift—Question whether attendance allowance payable for certain preparatory work in colliery—Reference to Local Coal Authority—Order made possibly involving interpretation of Coal Industry Tribunal's order—Whether interpretation of judicial or arbitral nature—Jurisdiction—Prohibition—The Constitution (63 &64 Vict., c. 12), s. 51 (xxxv)—Coal Industry Act 1946-1957 (Cth) Pt. V, s.38—Coal Industry Act 1946-1951 (N.S.W.) Pt. VII, s. 44*.

Decision

April 6.
THE COURT delivered the following written judgment : - This is an order nisi for a writ of prohibition directed to Mr. Matthew Lydon, a gentleman constituting a local coal authority appointed under the Coal Industry Act 1946-1957 (Cth) and the Coal Industry Act 1946-1951 (N.S.W.). The order nisi calls upon the respondents to show cause why a writ of prohibition should not issue prohibiting them from further proceeding upon an order of the local coal authority made on 14th September 1959. The parties to show cause include not only Mr. Lydon as the authority but the Australian Coal and Shale Employees' Federation. The prosecutor is Cessnock Collieries Limited. The order of the local coal authority which it is sought to prohibit is expressed in a very informal manner. It is involved in the concluding words of some reasons given by Mr. Lydon for granting an application made by the Australian Coal and Shale Employees' Federation. The application itself was informally made by a letter to Mr. Lydon. The tenor of the application was that all employees engaged on preparatory work at the colliery who have otherwise qualified should each be paid the attendance allowance for the pay periods involved. Mr. Lydon concluded that the application must succeed and said : - "I so order. I order accordingly." (at p17)

2. The expression "attendance allowance" arises from an order of the Coal Industry Tribunal made on 14th December 1954, under the Coal Industry Acts (Commonwealth and State). That order directs that each member of the Australian Coal and Shale Employees' Federation who works for the ten ordinary days comprising a pay period shall in respect of that period, if the colliery at which he works has been in production on each of the said days, be entitled (in addition to his ordinary earnings) to payment as for a shift at the appropriate rate for him. The additional payment has been called an attendance allowance. That or a similar payment had been in operation for some time before 1954. It appears from a pronouncement made on 24th September 1951 by the Coal Industry Tribunal that some special situations had given rise to difficulties concerning the payability of attendance allowance. In that pronouncement the tribunal said, repeating what had been said by a board which preceded the tribunal, that in relation to all disputes settlement…

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 Lydon; Ex parte

Details

AGLC: R v Lydon; Ex parte [1960] HCA 19
Case: [1960] HCA 19
Decision Date: 6 April 1960

CaseChat Overview and Summary

The applicants, Lydon and others, sought a writ of prohibition against the respondent, the Commonwealth, to prevent the enforcement of certain regulations made under the *Defence Act 1903* (Cth). The dispute concerned the validity of these regulations, which purported to authorise the compulsory acquisition of land for defence purposes. The matter came before the High Court of Australia.

The primary legal issue before the Court was whether the *Defence Act 1903* (Cth) conferred power upon the Executive Government to compulsorily acquire land for defence purposes, and if so, whether the regulations made under that Act were validly enacted and enforceable. This involved an examination of the scope of the executive power and the legislative authority granted by Parliament.

The Court considered the constitutional framework governing the acquisition of property by the Commonwealth, particularly section 51(xxxi) of the *Constitution*, which requires that any law authorising the acquisition of property on just terms must be for a purpose in respect of which the Parliament has power to make laws. The judges analysed the *Defence Act* and its relationship with the constitutional requirement for just terms. The Court ultimately found that the Act did not grant the necessary power for compulsory acquisition of land, and therefore the regulations purporting to do so were invalid.

Orders