R v Portus; Ex parte ANZ Banking Group Ltd

The case of *R v Portus; Ex parte ANZ Banking Group Ltd* involved an application for a writ of prohibition brought by the ANZ Banking Group Ltd (the applicant) against Mr Portus (the respondent), a Conciliation Commissioner appointed under the *Conciliation and Arbitration Act 1904* (Cth). The dispute concerned the applicant's challenge to the validity of certain proceedings before the Conciliation Commissioner, which the applicant contended were beyond the Commissioner's jurisdiction.

The central legal issue before the High Court of Australia was whether the Conciliation Commissioner had the power to make an order for the discovery of documents in relation to an application for an interim award under section 33 of the *Conciliation and Arbitration Act 1904* (Cth). The applicant argued that the Commissioner's purported exercise of such power was an excess of jurisdiction, as the Act did not expressly grant such a power for interim award proceedings.

The High Court, in a majority decision, held that the Conciliation Commissioner did not have the power to order discovery in the circumstances. The Court reasoned that the powers of a Conciliation Commissioner under the Act were limited to those expressly conferred or necessarily incidental to the performance of their statutory functions. While the Commissioner had broad powers in relation to conciliation and arbitration, the power to order discovery was not considered to be an inherent or implied power in the context of an application for an interim award, particularly given the limited nature of such proceedings. The Court emphasised that the absence of express statutory authority meant such a power could not be assumed.

The Court made absolute the order nisi for a writ of prohibition, restraining the Conciliation Commissioner from proceeding further with the discovery order.