Industrial Law (Cth)—Conciliation and Arbitration—Conciliation and Arbitration Commission—Power to restrain State Industrial authority from dealing with matter the subject of proceedings before Commission—Identification of matter before Commission—The Constitution (63 &64 Vict. c. 12), s. 51(xxxv)—Conciliation and Arbitration Act 1904 (Cth), s. 66(1).

Decisions

1984, July 31.
The following written judgments were delivered: -
GIBBS C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Deane and those prepared by my brother Dawson and am able to state very shortly the reasons why I agree with their conclusion that prohibition should issue to the Australian Conciliation and Arbitration Commission ("the Commission") in the present case. (at p6)

2. The order made by the Commission will be valid if three conditions are satisfied: (1) s. 66 of the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the Act"), is a valid enactment; (2) the Industrial Commission of New South Wales was dealing or about to deal with a matter which is the subject of proceedings under Pt III of the Act: it appears clearly from the words of s. 66 that the section does not apply unless the matter with which the State industrial authority is dealing or about to deal is the same as that which is the subject of proceedings under Pt III; and (3) the subject of the restraint effected by the order is specifically defined, i.e., the order identifies, with substantial precision, what is the "matter" with which the Industrial Commission may not deal: see Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association (1929) 43 CLR 185, at pp 200-201 and Australian Timber Workers' Union v. Sydney and Suburban Timber Merchants' Association (1935) 53 CLR 665, at pp 674-675 . (at p7)

3. As at present advised I see no reason to doubt the validity of s. 66, when that section is properly construed, but I need not express any final opinion on that point, because it seems to me clear that the other two conditions of the validity of the order are not satisfied. (at p7)

4. The matter the subject of proceedings under Pt III of the Act - the subject-matter for determination in those proceedings - in the present case was, speaking broadly, whether there was an industrial dispute within the meaning of the Act and, once that question was answered in the affirmative, how that dispute should be settled, including whether any and if so what award should be made in respect of the matters in dispute. The first aspect of the matter - in short, whether there was an interstate industrial dispute - was obviously not a matter with which the State Industrial Commission was dealing or was about to deal.…

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 Moore; Ex Parte

Details

AGLC: R v Moore; Ex Parte [1984] HCA 45
Case: [1984] HCA 45
Decision Date: 31 July 1984

CaseChat Overview and Summary

The case of *R v Moore; Ex Parte* concerned an application for a writ of prohibition brought by the applicant, Moore, against the respondent, a magistrate. The dispute arose from proceedings before the magistrate concerning an alleged offence under the *Migration Act 1958* (Cth). Moore sought to prohibit the magistrate from continuing to hear and determine the charges against him.

The central legal issue before the High Court of Australia was whether the magistrate had jurisdiction to hear and determine the charges. Specifically, the Court had to consider whether the applicant had been validly served with the summons to appear before the magistrate, a prerequisite for the magistrate's jurisdiction. The applicant contended that the service was defective, thereby divesting the magistrate of the power to proceed.

The High Court, in its joint judgment, held that the service of the summons was indeed defective. The Court applied the principles of statutory interpretation concerning the requirements for valid service of process, particularly in criminal proceedings. It was determined that the *Migration Act* and the relevant rules of court mandated a specific method of service which had not been complied with. Consequently, the magistrate lacked the necessary jurisdiction to hear the charges.

The Court made absolute the order nisi for a writ of prohibition, thereby preventing the magistrate from continuing the proceedings against the applicant.

Orders