R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation

This case concerned an application for a writ of prohibition brought by the Australian Building Construction Employees and Builders Labourers' Federation (the Federation) against the Honourable Mr Justice Marks of the Supreme Court of New South Wales. The Federation sought to prohibit Justice Marks from continuing proceedings in a matter concerning alleged breaches of the *Industrial Arbitration Act 1940* (NSW) by the Federation and its officers. The dispute arose from an application made by the Minister for Industrial Relations to the Industrial Commission of New South Wales for an order that the Federation and its officers be restrained from continuing a ban on the construction of a particular building.

The High Court was required to determine whether the Industrial Commission had jurisdiction to entertain the Minister's application. Specifically, the Court considered whether the Minister's application constituted a "dispute" within the meaning of the *Industrial Arbitration Act 1940* (NSW), and whether the Commission had the power to grant the relief sought by the Minister in the absence of a dispute between employers and employees. The central question was whether the Commission's jurisdiction was invoked by the Minister's application, or if it required a more traditional employer-employee dispute.

The Court held that the Industrial Commission did not have jurisdiction to make the order sought by the Minister. Mason, Murphy, Wilson and Brennan JJ reasoned that the concept of a "dispute" under the *Industrial Arbitration Act 1940* (NSW) required a disagreement between an employer and employees, or their industrial organisations, concerning industrial matters. The Minister's application, which sought to restrain the Federation from engaging in a ban without reference to any employer or employee grievance, did not satisfy this requirement. Aickin J, dissenting, considered that the Minister's application did fall within the scope of the Act.

The application for a writ of prohibition was granted.