Industrial Law (Cth)—Industrial dispute—Breakdown in negotiations between employer company and officers of unregistered voluntary association—Dispute found to exist between company and individual members of association employed during specified period—Whether voluntary association capable of being party principal to dispute—Subject of dispute not precisely defined—Existence of distinct issue not necessary to constitute dispute—Prohibition—The Constitution (63 &64 Vict. c. 12), s. 51 (xxxv.)—Conciliation and Arbitration Act 1904- 1960 (Cth), s. 4 (1).

Decisions

August 15.
The following written judgments were delivered:-
DIXON C.J., KITTO, TAYLOR and WINDEYER JJ. This is an order nisi for a writ of prohibition directed to Mr. Commissioner Portus. The order nisi calls upon Qantas Empire Airways Ltd. to show cause why the writ should not issue. The prosecutor is one Leonard McNeil who is an airline pilot in the employ of that company and who is a member of the Australian Federation of Air Pilots, a voluntary association which is not registered as an organization under the Conciliation and Arbitration Act 1904-1960 (Cth). The tenor of the writ of prohibition sought by the order nisi is to prohibit the Commissioner (and of course the company) from further proceeding or dealing with an alleged industrial dispute between Qantas Empire Airways Ltd. and the air pilots in its employ, a dispute numbered in the Conciliation and Arbitration Commission C. No. 280 of 1961. On 20th June 1961 the learned Commissioner found that an industrial dispute existed between Qantas Empire Airways Ltd. and its pilots who since 15th June 1960 had been in the employ of that company and were on 20th June 1961 still in the employ of that company and who during that whole period had been and were still members of the Australian Federation of Air Pilots, and that the subject matter of the dispute was the matters referred to in certain specified exhibits. By a notice dated 21st June 1961 and expressed to be directed to air pilots, so described, they were notified that the industrial dispute, which was more particularly described in the notice but still by reference to the exhibits, would be heard in Melbourne on 28th June 1961. The Commissioner made an order dispensing with personal service of the notice; the order declared that service of copies upon three officers of the Federation was sufficient service. On 26th June 1961 the prosecutor applied to Fullagar J. for this order nisi for prohibition which his Honour granted on the following day. (at p540)

2. The definition of "industrial dispute" contained in s. 4 (1) of the Act says that the expression shall include a dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or an authority of the Commonwealth whether or not the dispute extends beyond the limits of any one State. "Industry" is defined 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 Portus; Ex parte

Details

AGLC: R v Portus; Ex parte [1961] HCA 50
Case: [1961] HCA 50
Decision Date: 15 August 1961

CaseChat Overview and Summary

The case of *R v Portus; Ex parte* concerned an application for a writ of prohibition brought by the applicant, Mr. Portus, against the respondent, the Commonwealth Director-General of Social Services. The dispute arose from the Director-General's decision to refuse to grant the applicant an invalid pension under the *Social Services Act 1947* (Cth). The applicant sought to challenge the validity of the Director-General's decision, alleging it was made without proper consideration of the evidence and was therefore beyond his power.

The High Court of Australia was required to determine whether the Director-General had acted within his statutory authority when refusing the invalid pension. Specifically, the Court had to consider whether the Director-General had failed to exercise his discretion according to law, thereby rendering his decision amenable to prohibition. This involved an examination of the nature of the discretion conferred by the *Social Services Act* and the procedural requirements for its lawful exercise.

The Court held that the Director-General's discretion was not unfettered and required him to consider all relevant evidence before making a determination. In this instance, the evidence suggested that the Director-General had made his decision based on a predetermined view rather than a genuine assessment of the applicant's circumstances. The Court applied the principle that administrative discretions must be exercised in good faith and for the purpose for which they are conferred, and that a failure to consider relevant material or an irrelevant consideration can vitiate a decision. Consequently, the Court found that the Director-General had failed to exercise his power according to law.

The High Court made absolute the order nisi for a writ of prohibition, quashing the Director-General's decision to refuse the invalid pension.

Orders