Industrial Law (Cth)—Conciliation and Arbitration—Industrial dispute—Trade award—Log of claims served on private industry employers but not on public employers—Whether dispute involved variation of previous trade award—Whether public employers parties to industrial dispute—Right to be heard in settlement of dispute—The Constitution (63 &64 Vict. c. 12), s. 51 (xxxv.)—Conciliation and Arbitration Act 1904 (Cth), ss. 24, 40 (1) (j), 60 (2).

Decisions

November 10.
The following written judgments were delivered: -
BARWICK C.J. My brother Gibbs in the reasons for judgment which he has prepared and which I have had the advantage of reading, recites the history of The Metal Trades Award, 1952 ("the Metal Trades Award") and of The Metal Industry Award, 1971 ("the Metal Industry Award") and of the circumstances giving rise to dispute C No. 2278 of 1975. (at p94)

2. The prosecutors claimed to have been parties to that dispute or to be treated as parties thereto. I have come to agree with the conclusion of my brother Gibbs that the prosecutors were not parties to that dispute and that they are not entitled to the orders they seek from this Court. (at p95)

3. This is a conclusion to which I have come with reluctance. I agree entirely with the views expressed by my brother Gibbs as to the unsatisfactory nature of the course taken by the Commission and the union in fragmenting the Metal Trades Award. The advantage to the unions of that course is obvious and, indeed, should have been obvious to those Commissioners who allowed it to happen. Equally the serious disadvantage to the prosecutors is obvious. The radical difference between being able to participate in the argument as to the appropriate terms and conditions of employment when they are initially being considered and being no more than able to discuss whether, having been determined, they are to flow on to a sector of the industry which has been excluded from participation in their fixation is too plain to need emphasis. An odd thing in the catalogue of events related in my brother's reason is that the "fragmented" award was called the Metal Industry Award, which quit obviously it was not: it did not extend to a very significant sector of the industry. (at p95)

4. Of course, a person or body on whom no demand is made, either directly or indirectly through membership of an association, cannot be a party to a dispute dependent entirely upon a demand denied or not conceded. A dispute is essential to the jurisdiction of the Commission. Whilst a person or body may choose with whom it will seek to create a dispute, when it is apparent, as it must have been to all concerned in the formation of the Metal Industry Award, that some employers had been deliberately omitted from the list of those to…

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 Victoria

Details

AGLC: R v Moore; Ex parte Victoria [1977] HCA 58
Case: [1977] HCA 58
Decision Date: 10 November 1977

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of prohibition in *R v Moore; Ex parte Victoria*. The applicant, the State of Victoria, sought to prohibit the respondent, Moore, a magistrate, from proceeding with a committal hearing against certain individuals. The dispute concerned the validity of the committal proceedings, which the State argued were being conducted without jurisdiction.

The central legal issue before the High Court was whether the magistrate had the power to proceed with the committal hearing in circumstances where the prosecution had previously withdrawn the charges and subsequently relaid them. Specifically, the Court had to determine if the withdrawal and relodging of charges constituted an abuse of process or a jurisdictional error that would prevent the magistrate from exercising his authority.

The Court reasoned that the withdrawal of charges by the Crown, followed by the laying of fresh charges for the same offences, did not extinguish the magistrate's jurisdiction to conduct a committal hearing. The principle applied was that the laying of fresh charges, even if for the same alleged offences, initiated new proceedings and conferred jurisdiction upon the magistrate to inquire into those charges. The Court found no basis to conclude that the magistrate lacked jurisdiction or that the proceedings constituted an abuse of process that would warrant prohibition.

Consequently, the High Court dismissed the application for a writ of prohibition.

Orders