Industrial Law (Cth)—Conciliation and Arbitration—Registered organizations—Eligibility for membership—Persons employed by distributors of motion picture films—Whether employed in "any kind of amusement", "in or about theatres or halls", or "in all aspects of motion picture film production"—Prohibition.

Decisions

1976, March 25.
The following written judgments were delivered: -
GIBBS J. The prosecutors seek the issue of a writ of prohibition directed to a member of the Australian Conciliation and Arbitration Commission prohibiting him from proceeding further in the matter of an alleged industrial dispute which is said to have resulted from the delivery of a log of claims by the Australian Theatrical &Amusement Employees Association ("the Association") and the failure of the prosecutors to comply with its demands. The log of claims was addressed to a great many respondents besides the prosecutors but the only question that now arises is whether there exists an industrial dispute between the Association and the prosecutors as to the rates of pay and conditions of employment applicable "in the film distribution area" as listed in Schedule F to the log. Some of the prosecutors carry on the business of the distribution throughout Australia of motion picture films for the exhibition in cinemas, halls and like places. It appears that two of the prosecutors do not themselves distribute films but have films distributed for them. However, the uncontradicted evidence shows that the prosecutors do not make or produce motion picture films - the films supplied to them, for use in their businesses, are made or produced by other companies, mostly outside Australia. The duties of the employees of the prosecutors include the obtaining of any necessary censorship and customs clearances, checking, examining, cleaning and splicing the films, advertising the films for hire, booking the dates on which the films are to be hired to exhibitors, negotiating and preparing contracts, despatching films to exhibitors and receiving them on their return. Some employees are employed as salesmen to promote the prosecutors' businesses by visiting cinemas, halls and such places. Others engage in clerical and managerial duties. None of the employees of the prosecutors is engaged in the making or producing of motion picture films. It was not suggested that any of the employees is engaged in the exhibition of motion picture films. (at p30)

2. The question whether an industrial dispute has arisen between the Association and the prosecutors depends on whether any employee of the prosecutors is eligible for membership of the Association. If no employee of the prosecutors could become a member of the Association, the Association could not represent that class of employees for the purpose of making demands on the prosecutors and no industrial dispute could arise between the Association and the prosecutors: R. v. Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428, at pp 432-433, 436…

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 Neil; Ex parte

Details

AGLC: R v Neil; Ex parte [1976] HCA 11
Case: [1976] HCA 11
Decision Date: 25 March 1976

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of prohibition in *R v Neil; Ex parte*. The applicant, Mr Neil, sought to prohibit the respondent, a magistrate, from proceeding with a committal hearing against him on charges of conspiracy to defraud. The dispute centred on whether the evidence presented by the prosecution was sufficient to establish a prima facie case for the charges.

The primary legal issue before the Court was whether the evidence adduced by the prosecution at the committal hearing was capable of establishing a prima facie case against Mr Neil for conspiracy to defraud. This involved an examination of the elements of the offence of conspiracy to defraud and the standard of proof required at a committal hearing.

The Court held that the evidence presented was insufficient to establish a prima facie case. Gibbs, Stephen, Mason, Jacobs and Murphy JJ reasoned that while the prosecution had presented evidence of an agreement, it had failed to demonstrate that the agreement was entered into with the intent to defraud. The Court emphasised that mere suspicion or conjecture was not enough to warrant a committal; there must be some evidence upon which a jury, properly directed, could convict. The writ of prohibition was accordingly granted.

Orders