R v Spicer; Ex parte - [1958] HCA 8

THE QUEEN

SPICER AND OTHERS; Ex PARTE FOSTER AND OTHERS. Industrial Law (Cth.)-Statutory provision authorising directions as to performance

or observance of rules of registered organisations-Held applicable in relation to conduct of elections of office bearers-Subsequent enactment of provisions with respect to disputed elections-Purported election of office bearers-Dispute- Application made under earlier provision and direction given-Prohibition Mar. 25, 26. sought on ground that subsequent provision had restricted operation of earlier provision in relation to disputed elections-Subsequent provisions cumulative upon and not substitutional for earlier provisions-No implied repeal of earlier provisions in relation to disputed elections-Prohibition refused-Conciliation and Arbitration Act 1904-1956, Pt. VIII, 8. 141, Pt. IX.

The provisions now standing as Pt. IX- " Disputed Elections in Organiza- tions " of the Conciliation and Arbitration Act 1904-1956, notwithstanding their wider and different ambit, are cumulative upon and not substitutional for the provision now contained in S. 141 (formerly S. 81) the ambit of which they do not trench upon or reduce.

Barrett v. Opitz (1945) 70 C.L.R. 141, applied. The jurisdiction conferred by 8. 141 of the Conciliation and Arbitration Act 1904-1956 on the Commonwealth Industrial Court is conferred in permissive terms and the court has a discretion. In a case which it thinks unsuitable for the operation of S. 141 the court may hold its hand so that an application may be made under Pt. IX.

ORDER NISI for PROHIBITION.

On 10th January 1958 McTiernan J. on the application of Terence John Foster and others, being members of the Australian Builders' Labourers' Federation, New South Wales Branch, granted an order nisi directed to the Honourable John Armstrong Spicer, Chief Judge of the Commonwealth Industrial Court, and the Honourable Edward Arthur Dunphy and the Honourable Sir Edward James Ranembe Morgan, Judges of such court, and one John Wishart calling upon the

100 CLR 164

respondents to show cause before the Full Court of the High Court of Australia why a writ of prohibition should not issue out of the

THE QUEEN

said High Court directed to the said Chief Judge and Judges of the Commonwealth Industrial Court prohibiting them and each of them

SPICER;

from proceeding further upon the order made in matter no. B no, 72 of 1957 upon the following grounds namely :-1 The Commonwealth Industrial Court had no jurisdiction under S. 141 of the Conciliation and Arbitration Act 1904-1956 to make the said order in that the power of the said Commonwealth Industrial Court to deal with the subject matter of the claim before the said court in the above- mentioned matter and to make the order thereby sought was exclu- sively defined by the provisions of Pt. IX of the said Act and that upon the true construction of the said Act S. 141 must be read subject to those provisions. (2) The Commonwealth Industrial Court had no jurisdiction under S. 141 of the Conciliation and Arbitration Act 1904-1956 to deal with the claim by a member of an organisation registered…

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 Spicer; Ex parte

Details

AGLC: R v Spicer; Ex parte [1958] HCA 8
Case: [1958] HCA 8
Decision Date: 26 March 1958

CaseChat Overview and Summary

This case concerned an application for a writ of prohibition brought by members of the Australian Builders' Labourers' Federation, New South Wales Branch, against the Judges of the Commonwealth Industrial Court and another member of the Federation. The applicants sought to prohibit the Industrial Court from proceeding further with an order made by Dunphy J. that declared a purported election of certain office bearers within the branch void and ordered new elections. The core of the dispute revolved around the jurisdiction of the Commonwealth Industrial Court to make such an order under section 141 of the *Conciliation and Arbitration Act 1904-1956* (Cth), in light of the subsequent introduction of Part IX of the Act dealing specifically with disputed elections.

The legal issue before the High Court of Australia was whether the enactment of Part IX of the *Conciliation and Arbitration Act*, which provides a comprehensive framework for dealing with disputed elections in registered organisations, implicitly restricted or superseded the operation of section 141 of the same Act. Section 141, which had previously been interpreted by the High Court in *Barrett v. Opitz* to apply to election disputes, empowers the Commonwealth Industrial Court to make orders directing the performance or observance of the rules of a registered organisation. The prosecutors argued that Part IX, by introducing specific provisions for disputed elections, indicated a legislative intention to exclusively govern such matters and therefore impliedly repealed or limited the application of section 141 in this context.

The High Court held that the provisions of Part IX were cumulative upon, and not substitutional for, section 141. The Court reasoned that the introduction of Part IX, with its broader and different ambit concerning elections, was not intended to diminish or trench upon the jurisdiction conferred by section 141. The Court noted that the decision in *Barrett v. Opitz* had established the applicability of the predecessor to section 141 to election disputes, and the legislature had not indicated any intention to alter this meaning when enacting Part IX. Furthermore, the Court emphasised that the jurisdiction under section 141 is permissive, granting the Court a discretion to hold its hand in cases it deems unsuitable for its operation, allowing for applications to be made under Part IX instead.

Consequently, the High Court discharged the order nisi for prohibition. The Court found that the Commonwealth Industrial Court had not acted without jurisdiction in making the order under section 141, and therefore prohibition was not warranted. The prosecutors were ordered to pay the costs of the application.

Orders