Re Dingjan & Ors; Ex parte Wagner - [1994] HCATrans 187

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml03 of 1993
In the matter of -
An application for a writ of
prohibition and a writ of
certiorari against THE
HONOURABLE PAUL MUNRO, Senior
Deputy President of the
Australian Industrial
Relations Commission, and THE
AUSTRALIAN INDUSTRIAL
COMMISSION

First Respondents

and
A.J. & S.L. DINGJAN

Second and Third Respondents

and
M. K. & M. U. RYAN

Fourth and Fifth Respondents

and

Wagner	1	1/2/94
MASON CJ BRENNAN J DEANE J DAWSON J TOOHEY J GAUDRON J McHUGH J

TRANSPORT WORKERS' UNION OF

AUSTRALIA

Sixth Respondent

Ex parte -
D.R. & V.M. WAGNER

Prosecutors

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 FEBRUARY 1994, AT 10.16 AM

MR D.F. JACKSON, QC: If the Court pleases,

I appear with my

learned friends, MR R.J. BUCHANAN, ~ and

MR P.M. KITE, for the prosecutors. (instructed by
Blake Dawson Waldron)

MR A.M. NORTH, QC: If the Court pleases, I appear in this

matter with MR C.M. MAXWELL for the second to
sixth-named respondents both inclusive.
(instructed by Ryan Carlisle Thomas)

MR D.J. ROSE, QC: If the Court pleases, I appear with my

learned friend, MR E. WILLHEIM, for the
Commonwealth Attorney-General intervening in
support of the second to sixth respondents.
(instructed by the Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor-General for Victoria:

May it

please the Court, I appear with my learned friend,

DR C. HOWARD, for the Attorney-General for the
State of Victoria intervening in support of the
prosecutors in relation to the first ground of the
order nisi. (instructed by the Victorian
Government Solicitor)

MASON CJ:

The Deputy Registrar has certified that she has

received a letter from the Australian Government
Solicitor dated 9 August 1993 advising that the
first-named respondents do not wish representations
to be made on their behalf and will abide by any
order of the Court save as to costs.
Yes, Mr Jackson.

Wagner

1/2/94

MR JACKSON:

Your Honours, may I hand to the Court copies of

our outline of submissions.

MASON CJ: Yes, Mr Jackson.

MR JACKSON:

Thank you, Your Honours.

Your Honours, as is

apparent from the terms of the order nisi, which
appears at page 3, there are three grounds upon
which it is contended that the Industrial Relations
Commission had no jurisdiction to make the orders

in question. Two grounds involve constitutional
issues concerning first the corporations power,
section Sl(xx), and secondly, judicial power,

chapter III. The third involves a question of
construction of the Industrial Relations Act,
namely whether there is power to make an order of
the kind in question after the relevant contract
has come to an end.
Your Honours, could I say in relation to that that the resolution of that question may have an
effect upon the ambit of the other provisions which
are relevant to the constitutional aspects, and
that is the underlyi1~g reason why that question is
to be found amongst…

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.

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Details

Case: [1994] HCATrans 187
Decision Date

CaseChat Overview and Summary

The applicants, Mr Dingjan and others, sought writs of prohibition and certiorari against Senior Deputy President Munro of the Australian Industrial Relations Commission and other respondents. The dispute concerned the jurisdiction of the Commission to make certain orders under the Industrial Relations Act 1988 (Cth). The Commonwealth Attorney-General and the Attorney-General for Victoria intervened in the proceedings.

The High Court was required to determine three main legal issues. Firstly, whether the Commission had jurisdiction to make the impugned orders pursuant to the corporations power under section 51(xx) of the Constitution. Secondly, whether the making of such orders infringed the prohibition on the exercise of judicial power by non-judicial bodies under Chapter III of the Constitution. Thirdly, the Court had to construe the relevant provisions of the Industrial Relations Act 1988, specifically sections 127A, 127B, and 127C, to ascertain whether the Commission possessed the power to make the orders in question after the termination of the relevant contract.

The Court's reasoning focused on the constitutional validity of the impugned provisions of the Industrial Relations Act 1988, particularly in light of the corporations power and the separation of judicial power. The construction of the statutory provisions was also critical, as it informed the scope of the constitutional questions. The Court considered whether the amendments made by the Industrial Relations Reform Act 1993 had any bearing on the resolution of the case, although it was noted that these amendments did not directly affect the present matter. The Court ultimately determined the extent of the Commission's jurisdiction and the constitutional limitations on its powers.

Orders