R v Spicer; Ex parte (No 2)

The High Court of Australia considered an application for a writ of prohibition brought by the Waterside Workers' Federation of Australia against judges of the Commonwealth Industrial Court. The dispute arose from two orders made by the Commonwealth Industrial Court, which enjoined the Federation from committing breaches of specific clauses within the Waterside Workers' Award. These orders were made pursuant to section 109(1)(b) of the Conciliation and Arbitration Act 1904-1956, which empowers the court to restrain contraventions of the Act or breaches of awards.

The legal issues before the High Court were whether the Commonwealth Industrial Court had acted within its jurisdiction when making the two orders. The first order enjoined the Federation from preventing men from offering their labour and continuing in employment under award conditions, purportedly in breach of clause 26(m) of the award. The second order enjoined the Federation from being implicated in a concerted failure of its members to attend at the prescribed times and places for labour engagement, purportedly in breach of clause 26(g) of the award. The Federation argued that the award no longer prescribed specific times and places for labour engagement due to subsequent statutory orders and that, consequently, the basis for finding breaches of these clauses was absent, thereby divesting the Commonwealth Industrial Court of jurisdiction.

The High Court reasoned that while the Commonwealth Industrial Court had jurisdiction under section 109(1)(b) to make orders enjoining breaches of awards, the orders themselves must conform to the character described in that provision. The Court found that the practice of labour engagement at the Port of Melbourne had evolved significantly, and subsequent statutory orders had superseded the award's original prescriptions regarding times and places for engagement. Consequently, the second order, based on clause 26(g), was considered to be made without jurisdiction as there were no longer "times and places prescribed for the engagement of labour" in the relevant sense. Regarding the first order, concerning clause 26(m), the Court acknowledged that the Commonwealth Industrial Court's interpretation of the clause and the finding of a breach were within its jurisdiction. However, it also noted that the order purporting to enforce the engagement clause, in light of the changed practices, should be treated as made without jurisdiction.

Despite finding that at least one of the orders was made without jurisdiction, the High Court ultimately refused to grant the writ of prohibition. This decision was based on the fact that the operative period of both orders had expired before the application for prohibition was made. The Court held that an order that has been exhausted by the passage of time cannot be prohibited, and this principle extended to the order for costs, as it was ancillary to the exhausted substantive orders. Therefore, no further proceedings could be prohibited.