Procedure—Notice for the issue of prerogative writs of certiorari and mandamus—Jurisdiction of Industrial Relations Court of Australia to issue prerogative writ directed to a Judge of that Court sitting as a Judge of that Court—Power of High Court to remit to the Industrial Relations Court of Australia pursuant to s 44 of the Judiciary Act 1903 (Cth).
Orders
1. Declare that the High Court does not have power under s 44 of the Judiciary Act 1903 (Cth) to remit the application by the Prosecutor made by notice of motion dated 20 October 1995 to the Industrial Relations Court of Australia.
2. In default of agreement among them as to costs, the Prosecutor, Second Respondent, Third Respondent and Fourth Respondent file within 21 days written submissions as to the appropriate order for costs including reserved costs.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Decision
BRENNAN CJ.
1. The prosecutor moved on notice before the Full Court of this Court for the issue of writs of certiorari and mandamus directed to Moore J of the Industrial Relations Court of Australia. Before entering on the merits of the application, this Court considered whether the matter could or should be remitted to the Industrial Relations Court for determination. The Full Court decided that it would not remit the matter to the Industrial Relations Court whether or not this Court had power to do so. The Court, differently constituted, proceeded to hear the motion. The motion was dismissed. The circumstances out of which the proceedings arose appear in the report of that decision: Re Jarman; Exparte Cook [No 2][1]. The reasons for refusing to remit the matter to the Industrial Relations Court must now be stated.
2. Jurisdiction to remit to another court a matter properly pending in this Court is conferred by s 44 of the Judiciary Act 1903 (Cth), sub-ss (1) and (2) of which read:
" (1) Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted.
2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at…
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 Re Jarman; Ex parte Cook
Sign in free to access the full text
Details
AGLC
Re Jarman; Ex parte Cook [1997] HCA 13
Case
[1997] HCA 13
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application by the Prosecutor seeking the issue of prerogative writs of certiorari and mandamus directed to a Judge of the Industrial Relations Court of Australia. The Prosecutor sought to challenge a decision made by that Judge. The central question was whether the High Court had the power to remit this application to the Industrial Relations Court of Australia under section 44 of the *Judiciary Act 1903* (Cth).
The primary legal issue before the High Court was whether the Industrial Relations Court of Australia possessed the jurisdiction to issue prerogative writs against one of its own judges sitting in that court. Ancillary to this, the Court had to determine if section 44 of the *Judiciary Act 1903* (Cth) provided a mechanism for the High Court to remit such an application to the Industrial Relations Court, given the latter's potential lack of jurisdiction to grant the relief sought.
The High Court concluded that the Industrial Relations Court of Australia did not have the power to issue prerogative writs against a judge of that court. Consequently, the High Court held that it lacked the power under section 44 of the *Judiciary Act 1903* (Cth) to remit the Prosecutor's application to the Industrial Relations Court, as there was no competent court to which the matter could be remitted for the determination of the prerogative writ application.
The High Court declared that it did not have the power under section 44 of the *Judiciary Act 1903* (Cth) to remit the application to the Industrial Relations Court of Australia. The Court also ordered that, in the absence of agreement on costs, the Prosecutor, Second Respondent, Third Respondent, and Fourth Respondent were to file written submissions within 21 days regarding the appropriate order for costs, including any reserved costs.
Orders
Orders of the court
1. Declare that the High Court does not have power under s 44 of the Judiciary Act 1903 (Cth) to remit the application by the Prosecutor made by notice of motion dated 20 October 1995 to the Industrial Relations Court of Australia.
2. In default of agreement among them as to costs, the Prosecutor, Second Respondent, Third Respondent and Fourth Respondent file within 21 days written submissions as to the appropriate order for costs including reserved costs.