Re Jarman; Ex parte Cook

[1997] HCA 13

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

RE JARMAN & ORS; ex parte COOK [No 1]; F.C. 97/010
Procedure

(1997) 188 CLR 595

3 April 1997
Procedure

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 any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia or any court of a State or Territory."

3. A matter "in which a writ of mandamus ... is sought against an officer of the Commonwealth or a federal court" does not fall within any of pars (a), (b), (c) and (d) of s 38 of the Judiciary Act; it falls within par (e) of s 38 and is thus within the jurisdiction of the High Court of Australia exclusive of the jurisdiction of the several courts of the States. By s 39B of the Judiciary Act, Parliament conferred on the Federal Court of Australia jurisdiction to issue a writ of mandamus or prohibition directed to an officer of the Commonwealth (but not to a federal court). However, the conferral of the jurisdiction to issue mandamus or prohibition expressly excluded mandamus or prohibition directed to Judges of the Industrial Relations Court and Judges of the Family Court of Australia[2]. Thus the jurisdiction to issue mandamus or prohibition to the Judges of the superior courts of the Commonwealth remained exclusive to this Court.

4. As the matter of the issue of writs of certiorari and mandamus directed to Moore J fell outside sub-s (2) of s 44 of the Judiciary Act, it could not be referred to the Industrial Relations Court under that sub-section. Nor could the matter be remitted under sub-s (1) of s 44 unless the Industrial Relations Court had "jurisdiction with respect to the subject-matter and the parties".

5. The Industrial Relations Reform Act 1993 (Cth)[3] inserted[4] s 412 in the Industrial Relations Act 1988 (Cth). Sub-sections (2) and (3) of that section read as follows:

" (2) For the purposes of section 44 of the Judiciary Act 1903, the [Industrial Relations] Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act1946. 3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903."

6. The short question which arises is whether, by force of these provisions, the jurisdiction of the Industrial Relations Court extends to jurisdiction to issue a writ of mandamus directed to a Judge of that Court sitting as a Judge of that Court. In my view, the answer is: no. That answer can best be explained by reference to the events in the present case.

7. The jurisdiction which Moore J was exercising in conducting an inquiry pursuant to s 219 of the Industrial Relations Act was the jurisdiction of the Court itself[5]. No appeal lay from Moore J to the Full Court of the Industrial Relations Court[6]. The decision of Moore J that he had no power to make the interim order sought by the prosecutor under s 221 (1)(c) was made in exercise of that jurisdiction. It was the decision of the Industrial Relations Court. So long as that decision stood, the Industrial Relations Court could not act inconsistently with it[7]. That Court could not command one of its own Judges to exercise the power which it had held it did not have. It is ludicrous[8] to contemplate a superior court having jurisdiction to determine in proceedings for mandamus or prohibition directed to itself whether its own decision as to its jurisdiction is correct.

8. Isaacs J observed in R v Murray and Cormie; Ex parte The Commonwealth[9] that "the inherent nature of prohibition or mandamus requires that the officer must be someone not a member of the tribunal to which the application is made, or superior to it". For that reason, the jurisdiction conferred on this Court by s 75(v) of the Constitution does not extend to the issue of a writ of mandamus or prohibition either to the Court itself or to a Justice exercising the jurisdiction of this Court[10]. Aliter, when a Justice of this Court sits as a Judge of another court or tribunal[11].

9. The writ of mandamus is a supervisory remedy[12], issuing to an officer subordinate to the jurisdiction of a superior court having jurisdiction to issue the writ, commanding the performance of a public duty which, in the opinion of the superior court, the officer has wrongly refused to perform[13]. A Judge of the Industrial Relations Court is not an officer subordinate to the jurisdiction of that Court. Nor could that Court form an opinion that a Judge had wrongly failed to exercise its jurisdiction when the decision of that Judge had the effect of a Court decision that there was no such jurisdiction to exercise.

10. It has been held that the conferral of jurisdiction on this Court to issue writs of mandamus and prohibition to judicial officers of the Commonwealth implied the conferral of an ancillary jurisdiction to grant certiorari[14]. Does the conferral of a jurisdiction on the Industrial Relations Court to issue mandamus or prohibition carry an ancillary jurisdiction to grant certiorari? Assuming that it does, the ancillary jurisdiction does not empower the Court to quash a judicial determination of an issue of fact or law in order to clear the way for the issue of a writ of mandamus. The jurisdiction in certiorari would be ancillary, that is to say, it would not expand the occasions when a writ of mandamus or prohibition would issue. It follows that the existence of an ancillary jurisdiction in certiorari could not empower the Industrial Relations Court to issue a writ of mandamus or prohibition to a Judge of that Court who, in exercise of the jurisdiction of the Court to decide a question of his or her own jurisdiction or power, had decided that question. The decision of Moore J could be set aside only by this Court on an application for mandamus. If mandamus issued, the ancillary writ of certiorari could issue also to bring the decision up to be quashed.

11. As a court cannot be vested with jurisdiction to issue mandamus or prohibition to a Judge of that court exercising the jurisdiction of that court, s 412(2) of the Industrial Relations Act cannot be construed as conferring on the Industrial Relations Court a jurisdiction to issue mandamus or prohibition to a Judge of that Court. The term "officer or officers of the Commonwealth holding office under this Act" in that provision must be construed as excluding Judges of the Industrial Relations Court. It follows that s 44(1) of the Judiciary Act did not empower this Court to remit the matter to the Industrial Relations Court.

DAWSON J.

12. Division 5 of Pt IX of the Industrial Relations Act 1988 (Cth) provides for inquiries into elections[15]. Under s 218 of the Industrial Relations Act certain persons may apply to the Industrial Relations Court of Australia ("the Industrial Relations Court") for an inquiry into an alleged irregularity in relation to an election for an office in an organisation registered under the Industrial Relations Act or a branch of such an organisation. An application was made under s 218 for an inquiry in relation to an election for offices in the Communication Workers' Union of Australia ("the CWU") and in a branch of that organisation. An inquiry was instituted under s 219 of the Industrial Relations Act and, whilst it was being conducted, nominations were called for elections for offices on a Branch Committee of Management of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the CEPU"). The CEPU was formed as a result of the amalgamation of the CWU with another organisation after the inquiry under Div 5 began.

13. Under s 221(1)(c) of the Industrial Relations Act, the Industrial Relations Court may, when an inquiry has been instituted, order that a person who holds, or last held before the election, an office to which the inquiry relates, may act or continue to act in the office. The prosecutor in this matter, who was not the applicant under s 218, applied to the Industrial Relations Court under s 221(1)(c) for an order that the then holders of the offices for which elections had been called be continued in office until the completion of the inquiry. The basis of the application was a contention that the irregularities in relation to which the inquiry had been instituted would be repeated in the later elections.

14. That application was heard by Moore J who refused it, holding that the later elections were not for offices to which the inquiry related and that he had no power under s 221(1)(c). There was no avenue of appeal against the refusal of the order sought. Section 421 of the Industrial Relations Act provides that an appeal does not lie to a Full Court of the Industrial Relations Court from a judgment of the Industrial Relations Court constituted by a single judge in an inquiry referred to in s 219, and s 432(1) provides that an appeal does not lie to the High Court from a judgment of a single judge of the Industrial Relations Court.

15. The prosecutor therefore sought to contest the decision of Moore J by seeking a writ of certiorari to quash his decision and a writ of mandamus directing him to hear and determine the application under s 221(1)(c). The application for prerogative relief came before Gummow J and the question was raised whether he could or, if so, should remit that application to the Industrial Relations Court. In the light of that question, Gummow J directed that the application before him be made to a Full Court of this Court by motion upon notice. When the application came before a Full Bench of this Court upon notice of motion, it announced, after hearing submissions, that it would not exercise the power to remit, if any, which it might have. The Court was then reconstituted to hear the remainder of the application on its merits. The reconstituted Court dismissed the motion[16]. These reasons relate, therefore, only to the power of this Court to remit the application for prerogative relief to the Industrial Relations Court.

16. In Re Keely; Ex parte Kingham[17], I made an order on the papers, by consent and without argument, that an application for writs of mandamus and certiorari directed to a single judge of the Industrial Relations Court be remitted to the Industrial Relations Court. Upon the remitter, the question of jurisdiction was raised before the Full Court of the Industrial Relations Court and WilcoxCJ, with whom Spender and Ryan JJ agreed, held that the remitter validly conferred jurisdiction upon that Court to entertain the application for prerogative relief[18]. In the present proceedings, having heard full argument, I am now persuaded that I had no power to make the orders which I did in Re Keely; Ex parte Kingham.

17. Under s 44(1) of the Judiciary Act 1903 (Cth), this Court has power to remit a matter pending before it 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". Matters referred to in pars (a), (b), (c) or (d) of s 38 of the Judiciary Act are excluded from sub-s (1) of s 44; under sub-s (2) they may only be remitted to the Federal Court of Australia or any court of a State or Territory. But the matters referred to in s 38(e) are not excluded from sub-s (1) of s 44. The matters referred to in par (e) are "matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court". The jurisdiction of this Court in relation to those matters is conferred by s 75(v) of the Constitution, although that paragraph refers only to matters in which a writ of mandamus or prohibition (or an injunction) is sought against an officer of the Commonwealth and does not expressly mention a federal court as does s 38(e). But it is clear that judges of a federal court are officers of the Commonwealth and the express mention of a federal court in s 38(e) would seem to be superfluous. As Gibbs J observed in R v Federal Court of Australia; Ex parte WA National Football League[19], it is settled by cases too numerous to mention that the expression "an officer of the Commonwealth" extends to judicial officers.
18. The Industrial Relations Court is, of course, a federal court[20]. It is a superior court of record[21] and consists of a Chief Justice and as many other Judges as hold office under the Industrial Relations Act[22]. Although a judge of the Industrial Relations Court holds office under the Industrial Relations Act, in the sense that the terms of his or her appointment are prescribed by the Industrial Relations Act, the power to enact those terms is to be found in ss 71 and 72 of the Constitution under which he or she is also an officer of the Commonwealth for the purposes of s 75(v).

19. The power of this Court to remit a matter to any federal court under s 44(1) is dependent upon that court having jurisdiction with respect to the subject-matter and the parties. In Johnstone v The Commonwealth[23] it was held that those words do not require the court to which a matter is to be remitted to have jurisdiction over the actual matter to be remitted; it is sufficient that it have jurisdiction over the same kind of subject-matter and the same kind of parties as those over which this Court has jurisdiction. With this requirement in mind, the Industrial Relations Act relevantly provides in s 412 in relation to the Industrial Relations Court:

"(2) For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946.

3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903."

20. Thus s 412(2) allows reliance to be placed upon s 44(1) of the Judiciary Act in ordering a remitter to the Industrial Relations Court of an application for prerogative relief against an officer of the Commonwealth - for example, a Commissioner of the Australian Industrial Relations Commission - by deeming the Industrial Relations Court to have jurisdiction over the subject-matter and the parties to such an application. Section 412(3) then confers jurisdiction upon the Industrial Relations Court to hear the remitter. That jurisdiction is conferred pursuant to s 77(i) of the Constitution, which empowers the Parliament to define the jurisdiction of a federal court.
21. Those sub-sections, read in combination with s 44(1) of the Judiciary Act, may give the impression that the legislation intended the Industrial Relations Court to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition is sought against a judge of that Court, for the words "an officer or officers of the Commonwealth holding office under this Act" appear without qualification and are apt to describe a judge of the Industrial Relations Court.

22. However, s 412 of the Industrial Relations Act may be compared with s 39B of the Judiciary Act which, pursuant to s 77(i) of the Constitution, defines the jurisdiction of the Federal Court with respect to matters referred to in s 75(v) of the Constitution. It provides:

"(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:

(a) a person holding office under the Industrial Relations Act 1988 or the Coal Industry Act 1946; or

(aa) without limiting paragraph (a) of this subsection, a Judge or Judges of the Industrial Relations Court of Australia; or

(b) a Judge or Judges of the Family Court of Australia."

23. That section makes apparent a legislative intention to deny to the Federal Court the jurisdiction to grant prerogative relief with respect to other federal courts with a co-ordinate jurisdiction as superior courts of record. The absence of any express reference in sub-s (2) to the Federal Court itself is explained by the fact that such a reference is unnecessary. The Federal Court could not, because of the constitution of that Court and because of the nature of s 75(v) relief, be supposed to have jurisdiction conferred on it to grant such relief against one of its own judges. That was the explanation given by Drummond J in Bird v Free[24]:

"The Federal Court of Australia consists of the judges of the court: s 5(3) of the Federal Court of Australia Act. The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the court acting as such would mean that the authority vested only in all the judges as a group can be treated, as occasion arises, as an authority vested in all save one of the judges and exercisable against that one judge, by the rest. Section 39B of the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the court, ie, in all the judges who make up the court. It matters not that the authority vested only in the group is by force of s 20(1) of the Federal Court of Australia Act exercisable by a single member of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other judges of the court. Authority conferred only on the entire group cannot be exercised by one member, or by some of the members, of that group against another member of the group. To so exclude one member from the exercise of the authority in question by making that member the object of the exercise of that authority would be to do something quite different from exercising the collective authority."

24. As I have already noted, s 361(3) of the Industrial Relations Act provides that the Industrial Relations Court consists of all the judges of the Court, including the Chief Justice. Section 415(1) provides that, subject to some exceptions, the jurisdiction of the Court may be exercised by a single judge. One of the exceptions is where jurisdiction is to be exercised in matters in which a writ of mandamus or prohibition or an injunction is sought against a Presidential member of the Industrial Relations Commission or officers of the Commonwealth at least one of whom is a Presidential member[25]. This reflects the same kind of deference as is required of the Federal Court by s 39B of the Judiciary Act towards federal courts of co-ordinate jurisdiction in the exercise of its jurisdiction to grant prerogative relief, by excluding these courts from that jurisdiction. Each Presidential member of the Industrial Relations Commission has, under s 9(2) of the Industrial Relations Act, the same rank, status and precedence as a judge of the Industrial Relations Court.

25. And it also suggests that it is unlikely that ss 412(2) or (3) were intended to confer jurisdiction upon the Industrial Relations Court, whether it be the Full Court or a single judge of that Court, to grant prerogative relief against itself in the form of another single judge.

26. The reason for the express provision in both the Industrial Relations Act and the Federal Court of Australia Act 1976 (Cth) that the jurisdiction of each of the courts might be exercised by a single judge is the notion which lies deep in history that a superior court of record comprises all its judges who must act collectively in order to constitute the court. Thus at common law all trials by jury were originally held before the court in banc. When trials at nisi prius before a single judge were introduced, the judge took the verdict but could not enter judgment. He returned the verdict to the court and the court in banc gave judgment accordingly[26]. This was noted by Windeyer J in Kotsis v Kotsis[27] where he said that the meaning of the word "court" has come to us through a long history and observed:

"According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge."

27. But the jurisdiction of a superior court of record exercised by a single judge is still the jurisdiction of the court; there are not two courts, one comprising the single judge and one comprising all the judges. Nor does the provision of an appeal from a single judge to a full court alter the situation for an order made on appeal is made in the exercise of a jurisdiction which is different from that of the judge at first instance. For a court to grant prerogative relief against one of its own judges is for it to grant relief against itself in the exercise of the same jurisdiction as that exercised by the judge, a situation which has been described as "rather ludicrous"[28]. Thus, it was early recognised in this Court that it could not under s 75(v) of the Constitution grant prerogative relief directed towards itself[29].

28. In my view, it was unnecessary in s 412(2) of the Industrial Relations Act to exclude judges of the Industrial Relations Court from the expression "an officer or officers of the Commonwealth holding office under this Act." There are others, notably members of the Industrial Relations Commission, who answer that description. By the very nature of his or her office and that of the Industrial Relations Court, a judge of that Court cannot grant prerogative relief directed to the Court or another judge of the Court.

29. For these reasons, the Industrial Relations Court does not, in relation to an application for prerogative relief directed to itself, have jurisdiction over the subject-matter or parties, and, under s 44(1) of the Judiciary Act, the foundation for a remitter to that Court of an application to this Court for prerogative relief directed to that Court is lacking. This Court had no power in this case to order such a remitter.

30. It is unnecessary to add anything further, save to draw attention to the fact that the relief sought was not only by way of a writ of mandamus but also a writ of certiorari. Section 75(v) of the Constitution does not refer to a writ of certiorari and the power of this Court to grant such a remedy directed to a superior court has been called in question, even where the relief claimed is ancillary to prohibition[30]. In the circumstances of this case, however, it is inappropriate to consider that question further.

TOOHEY AND GAUDRON JJ.

31. The prosecutor, Quentin Redvers Cook, is a member of the Communication Workers' Union of Australia ("CWU"). He seeks prerogative relief in the form of a writ of certiorari and a writ of mandamus against a number of respondents.

32. The first respondent is a Judge of the Industrial Relations Court of Australia. The second respondent is a member of CWU. The third respondent is CWU itself. The fourth respondent is the Australian Electoral Commission which has certain duties and functions under the Industrial Relations Act 1988 (Cth) ("the Act") in regard tothe conduct of elections[31].

33. The background to the present proceedings is an application made, pursuant to s 218 of the Act, for an inquiry by the Industrial Relations Court into alleged irregularities in relation to an election for federal offices in CWU and for offices in the CWU Postal and Telecommunications Branch, New South Wales. The prosecutor did not initiate the inquiry ordered by the Court but he sought leave to intervene and thereafter was joined as a party to the inquiry.

34. Nearly one year after the inquiry was ordered, nominations were called for the election of sectional representatives in the Postal and Telecommunications Branch of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU"). CEPU was formed as a result of the amalgamation of CWU with another organisation after the inquiry began. On the same day as nominations were called, the prosecutor sought interim orders pursuant to s 221(1)(c) of the Act, designed to ensure that the current holders of sectional representative offices continued in office until the inquiry had concluded. The application was said to be motivated by a fear that similar irregularities would recur in relation to these elections as had occurred in the earlier election.

35. Without going into unnecessary detail, a question arose as to whether, on the language of s 221(1)(c), the offices of sectional representatives, in the later elections, were offices "to which the inquiry relates". Moore J, the first respondent, concluded[32]:

"The Court is able to regularise, on an interim basis, the occupation of an office which has been or is to be filled by an election the subject of the inquiry. ... The election that led to the holding of office by Mr Cook is not the subject of the inquiry. In my opinion, I do not have the power to make the order sought."

36. The prosecutor's motion was dismissed. He now seeks the grant of a writ of certiorari to quash that decision and a writ of mandamus directing Moore J to hear and determine the s 221(1)(c) application.

37. Section 420(1) of the Act confers on the Industrial Relations Court "jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge."[33] However, s 421 expressly provides that an appeal does not lie to a Full Court from a judgment of a single Judge in an inquiry referred to in s 219. This is such an inquiry. The result was an application to this Court for certiorari and mandamus in order to test the ruling of Moore J[34]. However, a question arose as to whether this Court could and, if so, whether it should remit the matter to a Full Court of the Industrial Relations Court. We heard argument on the question and concluded that the Court would not exercise any power to remit that it might have. Accordingly the Court continued to hear the application on its merits, though it was differently constituted for that purpose. This judgment relates only to the question whether the High Court is empowered to remit to the Industrial Relations Court the application for prerogative relief sought by the prosecutor.

38. The argument as to the power to remit in the present case crystallises in the relationship between the relevant provisions of the Judiciary Act 1903 (Cth) and of the Act. Section 75 of the Constitution confers on the High Court original jurisdiction in enumerated matters including those "(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". Section 38 of the Judiciary Act provides that, subject to s 44, "the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters". One of those is "(e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court."

39. Section 44(1) of the Judiciary Act empowers the High Court to remit a matter pending in the Court, "other than a matter to which subsection (2) applies ... 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". Sub-section (2) provides that where a matter referred to in par 38(a), (b), (c) or (d) of the Judiciary Act is pending in the High Court, the matter may be remitted "to the Federal Court of Australia or any court of a State or Territory." Matters identified in s 38(e) are not included. By reason of s 44(2A), where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party, the Court may remit the matter to the Federal Court. Where the High Court remits a matter under s 44(2) or (2A) to a court, "that court has jurisdiction in the matter"[35].

40. In State Bank (NSW) v Commonwealth Savings Bank[36] Gibbs CJ referred to the fact that sub-s (2) of s 44 did not include a power to remit a matter falling under s 38(e). His Honour also mentioned sub-s (2A) and said that if a matter falls under sub-s (2A) it may be remitted only to the Federal Court but that if it falls under sub-s (2) as well it may be remitted to the Federal Court or to a court of a State or Territory. In Bowtell v Commonwealth[37] Toohey J referred to State Bank (NSW) v Commonwealth Savings Bank and said of sub-s (2A):

"The sub-section is additional to the sub-sections that precede it; it does not override them."

41. In McCauley v Hamilton Island Enterprises Pty Ltd[38], Mason J described the Federal Court, to which a remitter was made under s 44(2A) of the Judiciary Act, as standing "in the jurisdictional shoes of this Court". Jurisdiction is however conferred on the court to which a remitter is made by force of statute, not by the act of remitter.

42. The Federal Court is not an available vehicle for any remitter of the present matter. Section 39B(1) of the Judiciary Act, which was added by the Statute Law (Miscellaneous Provisions) Act (No 2) 1983 (Cth), now includes in the original jurisdiction of the Federal Court "any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth." However, sub-s (2) excludes from the reference to officer or officers of the Commonwealth "(a) a person holding office under the Industrial Relations Act" and "(aa) ... a Judge or Judges of the Industrial Relations Court of Australia". Consequently, the Federal Court does not have jurisdiction with respect to the parties to the application. Nor does it any longer have jurisdiction with respect to the subject-matter of the application, namely, the conduct of elections under the Act[39].

43. Any power of remitter which this Court may have in relation to the present matter must have its source in s 44(1) of the Judiciary Act. Section 44(1) is expressed in terms of remitter to a court that has jurisdiction with respect to the subject-matter and the parties. In its original form, s 44 empowered the Court to remit a matter pending before it only to a court that had jurisdiction over the same kind of party and the same kind of subject-matter as that over which this Court has jurisdiction[40]. If s 44(1) of the Judiciary Act is given the operation which its language demands, the present application may be remitted to the Industrial Relations Court so long as that Court has jurisdiction with respect to the same kind of party and the same kind of subject-matter. The prosecutor submits that the Industrial Relations Court does not have jurisdiction with respect to the subject-matter and the parties in the present case. He further submits that the power to remit conferred by sub-s (2) of s 44 has no application. The latter submission is undoubtedly correct.

44. The jurisdiction of the Industrial Relations Court is spelled out in Pt XIV Div 5 of the Act. Section 412, which is within Div 5, operates in a rather unusual way. Sub-section (1) confers jurisdiction on the Industrial Relations Court with respect to matters arising under the Act as there prescribed. Sub-section (2) does not in express terms confer additional jurisdiction on the Court. Rather, it relevantly provides:

"For the purposes of section 44 of the Judiciary Act1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act".

However, by virtue of sub-s (3) of s 412, the Court "has jurisdiction with respect to matters remitted to it under section 44". Clearly then sub-s (2) is a notional conferral of jurisdiction so that if the question of "jurisdiction with respect to the subject-matter and the parties" arises under s 44, the Industrial Relations Court must be taken to have jurisdiction with respect to any matter identified in sub-s (2) of s 412. If remitter takes place, the jurisdiction of the Court is, by virtue of sub-s (3), confirmed.

45. In order for the Industrial Relations Court to have jurisdiction with respect to the subject-matter and the parties in the present case, it must be shown that a Judge of the Industrial Relations Court is an officer of the Commonwealth holding office under the Act. In putting the matter this way we do not overlook s 38 of the Judiciary Act to which the prosecutor attached some importance. But the jurisdiction of the High Court to which that section refers is expressed to be "exclusive of the jurisdiction of the several Courts of the States". It says nothing as to the jurisdiction of federal courts. In any event s 38 is irrelevant since it is expressed to be subject to s 44, the limits of which have already been noted.

46. Section 415(2)(d) of the Act concerns the exercise of jurisdiction by the Full Court of the Industrial Relations Court in relation to matters in which mandamus or prohibition or an injunction is sought against a Presidential member. No mention is made in this context of a Judge of the Court but that is hardly surprising since the section deals with the exercise of the original jurisdiction of the Court. But the issue here cannot be resolved by reference only to s 415. Section 412(2) and (3) was enacted expressly to deal with the question of remitter. In that respect sub-s (2) largely picks up the language of s 38(e) of the Judiciary Act and to that extent takes its meaning from that paragraph.

47. As to s 412(2), is Moore J an officer of the Commonwealth holding office under the Act? There is no doubt that his Honour is an officer of the Commonwealth because authority clearly establishes that a Judge of a court created by the Parliament pursuant to s 71 of the Constitution is an "officer" of the Commonwealth for the purposes of s 75(v) of the Constitution[41].

48. It is equally clear that Moore J holds office under the Act. It is the Act which creates the Industrial Relations Court[42] and it is the Act which deals with the appointment, removal and resignation of the Judges of the Court[43]. It is true that s 72 of the Constitution prescribes the appointment and removal of the Justices of the High Court "and of the other courts created by the Parliament". But that does not detract from the undoubted fact that Pt XIV Div 2 of the Act, into which ss 361 and 362 fall, regulates in detail the constitution of the Court. The matter is put beyond doubt by s 361(3) which reads: "The Court consists of a Chief Justice and as many other Judges as hold office under this Act" (emphasis added). The legislature can hardly have intended the reference in s 412(2) to an officer "holding office under this Act" to bear some different meaning[44]. Indeed, WilcoxCJ in Re Keely; Ex parte Kingham[45] stated:

" A judge of this Court exercising jurisdiction in respect of an election inquiry is an 'officer ... of the Commonwealth holding office under this Act'."

49. Re Keely was one occasion on which this Court has remitted to the Industrial Relations Court an application for writs of prohibition, mandamus and certiorari against a member of that Court. In the course of his judgment in that case WilcoxCJ said[46]:

" This is the first occasion on which the High Court has remitted to this Court an application for prerogative writs against a member of the Court. The remittal makes the case a legal curiosity."

50. There is, as WilcoxCJ recognised, a difficulty according to conventional theory in members of a court issuing a prerogative order against another member of the court. In Bird v Free[47] Drummond J held that neither a Judge of the Federal Court nor a grouping of those Judges can prohibit or enjoin another Judge of that Court[48]. In a passage which warrants setting out at some length, his Honour said[49]:

" The Federal Court of Australia consists of the judges of the court: s 5(3) of the Federal Court of Australia Act. The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the court acting as such would mean that the authority vested only in all the judges as a group can be treated, as occasion arises, as an authority vested in all save one of the judges and exercisable against that one judge, by the rest. Section 39B of the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the court, ie, in all the judges who make up the court. It matters not that the authority vested only in the group is by force of s 20(1) of the Federal Court of Australia Act exercisable by a single member of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other judges of the court. Authority conferred only on the entire group cannot be exercised by one member, or by some of the members, of that group against another member of the group. To so exclude one member from the exercise of the authority in question by making that member the object of the exercise of that authority would be to do something quite different from exercising the collective authority."

51. There can be no argument with the observations of Drummond J so far as they relate to the Federal Court. But, so far as remitter to the Industrial Relations Court is concerned, the power of this Court must be answered by reference to the various statutory provisions mentioned earlier in these reasons. In Re Bolton; Exparte Beane[50] Mason CJ, Wilson and Dawson JJ said:

" It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."

52. Whether there was oversight or inadvertence is by no means clear. In any event, it is not appropriate that an explanation said to underlie the interpretation of s 39B of the Judiciary Act should dictate the construction to be given to express provisions in the Act.

53. It is also necessary to bear in mind that s 77 of the Constitution empowers the Parliament to make laws with respect to matters mentioned in s 75(v), defining the jurisdiction of any federal court other than the High Court. The Parliament has defined the jurisdiction of the Industrial Relations Court in the manner described in these reasons. A consideration of the various provisions, in particular s 412(2) and (3) of the Act, leads to the conclusion which WilcoxCJ reached in Re Keely, namely that this Court may remit to the Industrial Relations Court a matter in which mandamus or prohibition is sought against a Judge of that Court.

54. The incongruity of the Full Court of the Industrial Relations Court considering prerogative relief against one of its members is, no doubt, a factor which militates against a remitter. The incongruity may be more apparent than real since, on remitter, the jurisdiction of the Industrial Relations Court "is coextensive with the jurisdiction of this Court"[51]. In any event this Court is presently concerned only with the issue of its power to remit in the circumstances. While not in terms demanded by the various statutory provisions, no doubt any remitter would be to a Full Court of the Industrial Relations Court. There is no reason why a remitter should not specify the Full Court.

55. There is a question as to this Court's power to grant certiorari since this form of prerogative relief is not mentioned in s 75(v) of the Constitution. Certainly in R v Dunphy; Exparte Maynes[52] Aickin J granted an order nisi for certiorari and prohibition against the Industrial Court though in the end only the order nisi for prohibition was made absolute. In the course of argument Barwick CJ questioned the Court's power to order certiorari[53]. Earlier in Pitfield v Franki[54] the Court granted certiorari against members of the Commonwealth Conciliation and Arbitration Commission. And in R v Cook; Exparte Twigg[55] the Court made absolute an order nisi for certiorari against a Judge of the Family Court of Australia. The Court adverted to the question more recently in Re Coldham; Exparte Brideson[56].

56. In the past questions have arisen as to the power of this Court to grant relief by way of certiorari. It may well be that certiorari may issue where it is an ancillary remedy to mandamus or prohibition, in the sense discussed by Aickin J in R v Cook; Exparte Twigg[57] and by Wilson and Dawson JJ in R v Ross-Jones; Exparte Green[58]. Having regard to the course adopted by the Court in the present proceedings, it is unnecessary to resolve that issue. It is sufficient to hold that the Court is empowered by s 44(1) of the Judiciary Act to remit the matter before it to the Industrial Relations Court. Resort to prerogative proceedings in a case such as this would be unnecessary if a right of appeal to the Full Court of that Court existed in the case of an inquiry referred to in s 219 of the Act.

McHUGH J.

57. The principal question in this application was whether this Court had the power to remit an application for writs of certiorari and mandamus to the Industrial Relations Court of Australia ("the Industrial Court") where that application was brought in reliance upon s 75(v) of the Constitution and was directed against a decision of a single judge of the Industrial Court ("the remitter question").

58. The application was heard by the Full Court on 13 March 1996. The remitter question was isolated by the Court as a preliminary issue. After hearing submissions from the parties, including the Commonwealth intervening in support of the prosecutor, the Court indicated that it would not exercise any remitter power which it may have[59]. I concluded that this Court did have the power to remit the application to the Industrial Court but in the exercise of its discretion the Court should not remit the matter. What follows are my reasons for these conclusions.

The factual background and procedural history

59. In 1994, an election was held for offices in the Communication Workers' Union of Australia ("the Union"). On 27 July 1994, Mr Noel Battese, who was granted leave to intervene in the current application, commenced proceedings in the Industrial Court under s 218 of the Industrial Relations Act 1988 (Cth) ("the Industrial Act")[60] alleging various irregularities in that election. The application was heard by Moore J, a judge of the Industrial Court. Having held pursuant to s 219(b) of the Industrial Act that there was a reasonable ground for the application, his Honour instituted an inquiry into the election and, on 29 July 1994, made various interlocutory orders. The prosecutor in the current application, Mr Quentin Cook (a candidate in the elections), was given leave to appear at the hearing that resulted in those orders. The current second, third and fourth respondents, respectively Mr Alan Jarman (also a candidate), the Union, and the Australian Electoral Commission were also given leave to appear.

60. Following a series of direction hearings, on 8 May 1995 the prosecutor sought interlocutory orders including, pursuant to s 221(1)(c) of the Industrial Act:

"1. That the current office holders of the State Committee of Management in the Communications, Electricians & Plumbers Union ('the CEPU') remain in office until a final determination has been made in this matter, or until further order of the court.

2. In the alternative to the above, that the ballot relating to the State Committee of Management in the CEPU be suspended until a final determination has been made in this matter, or until further order of the court."

61. (The Communications, Electricians & Plumbers Union resulted from an amalgamation of the Union with another organisation after the commencement of the s 219(b) inquiry.)

62. Moore J dismissed the application for interlocutory orders on the ground that the Industrial Court lacked the jurisdiction to make orders of the type sought[61]. Because the order was made pursuant to an inquiry instituted under s 219, no appeal lay from that decision to the Full Court of the Industrial Court[62]. In an attempt to seek a review of Moore J's decision, the prosecutor applied to this Court, relying upon s 75(v) of the Constitution, for writs of mandamus and certiorari to test the correctness of his Honour's ruling. On 17 October 1995, Gummow J directed that the application be made by notice of motion to the Full Court.

The statutory framework

63. The answer to the question whether this Court had the power to remit the issues in these proceedings lies in the relationship between various provisions of the Constitution, the Judiciary Act 1903 (Cth) ("the Judiciary Act")and the Industrial Act. It is necessary to set out some of these provisions in detail.

64. Section 75 of the Constitution provides in part:

"In all matters -

...

(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction."

65. Section 77 relevantly provides:

"With respect to any of the matters mentioned in the last two sections the Parliament may make laws -

(i) Defining the jurisdiction of any federal court other than the High Court:

(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States".

66. Section 38 of the Judiciary Act is a law made under s 77(ii) of the Constitution. Paragraph (e) of s 38 is particularly relevant to the application, but it is instructive to set the section out in full:

"Subject to section 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters:

(a) matters arising directly under any treaty;

(b) suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State;

(c) suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State;

(d) suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth;

(e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court."

67. As is clear from the opening words of s 38, the operation of that section is subject to s 44 of the Judiciary Act. Section 44 regulates the remitter power of this Court and is expressed in the following terms:

"(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 any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia or any court of a State or Territory.

(2A) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.

(3) Where the High Court remits a matter, or any part of a matter, under subsection (2) or (2A) to a court:

(a) that court has jurisdiction in the matter, or in that part of the matter, as the case may be; and

(b) 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 that court."

The remitter power in this case flows from s 44(1) of the Judiciary Act and sub-ss (2) and (3) of s 412 of the Industrial Act

68. The prosecutor submitted that s 44(2) of the Judiciary Act was the only possible source of this Court's power to remit the application to the Industrial Court. However in my opinion, this argument is mistaken. Section 44(2) does not empower the Court to remit a s 38(e) matter. Although it expressly supports a remittal of proceedings brought in this Court's exclusive jurisdiction pursuant to pars (a), (b), (c) and (d) of s 38, it pointedly omits any reference to par (e) of that section. Moreover, the Federal Court of Australia could not entertain any remitter of the current proceedings under s 44(2). This is made clear by the terms of s 39B of the Judiciary Act, a law made pursuant to s 77(i) of the Constitution. Section 39B, as at the relevant date, relevantly provided:

"(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:

(a) a person holding office under the Industrial Relations Act 1988 or the Coal Industry Act1946; or

(aa) without limiting paragraph (a) of this subsection, a Judge or Judges of the Industrial Relations Court of Australia".

69. The determination of Moore J, who of course is a "Judge ... of the Industrial Relations Court of Australia", is clearly not susceptible to any application for prerogative or injunctive relief in the Federal Court.

70. However, the prosecutor's submission overlooks that s 44(2), while containing the grant of power to remit the matters specified in that sub-section, does not detract from whatever power the federal Parliament has given this Court in s 44(1). The fact that no remitter of a s 38(e) matter is possible under sub-s (2) of s 44 does not mean that the power to remit such a matter is not authorised by sub-s (1). As Toohey J observed in Bowtell v Commonwealth[63] in reference to s 44(2A), which is analogous to s 44(2) for the purpose of assessing the prosecutor's submission that that sub-section is the only possible source of remitter power[64]:

"The sub-section is additional to the [sub-section] that [precedes] it; it does not override [it]."

71. On its face, the power to remit under s 44(1) applies to any matter pending in the High Court other than a matter to which s 44(2) applies. That is to say, it applies to any matter other than a matter referred to in pars (a), (b), (c) and (d) of s 38. Section 44(1) therefore prima facie applies to a matter referred to in par (e) s 38 of the Judiciary Act.

72. However, the real issue is whether, notwithstanding the literal meaning of s 44(1), the sub-section empowers this Court to remit an application for writs of mandamus and certiorari brought in reliance upon s 75(v) of the Constitution to the same court as that in which the judge, against whom the writs are sought, holds office. It is to this issue that I now turn.

Section 412 of the Industrial Act and s 44(1) of the Judiciary Act give this Court the power to remit the application

73. Section 77 of the Constitution empowers the Commonwealth Parliament to confer jurisdiction on federal courts in respect of the matters listed in ss 75 and 76 of the Constitution. Relevantly, s 77 grants the federal Parliament the power to confer both original and appellate jurisdiction[65] on the Industrial Court in respect of ss 75 and 76 matters. Section 412 of the Industrial Act is in part directed towards proceedings which may be remitted to the Industrial Court pursuant to s 44 of the Judiciary Act. It provides:

"(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:

(a) applications may be made to it under this Act; or

(b) actions may be brought in it under this Act; or

(c) questions may be referred to it under this Act; or

(d) appeals lie to it under section 422; or

(e) penalties may be sued for and recovered under this Act; or

(f) prosecutions may be instituted for offences against this Act, other than a prosecution under section 407 or 485.

(2) For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946.

(3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903.

(4) The Court has such other jurisdiction as is vested in it by this Act or other laws made by the Parliament."

74. Sub-sections (2) and (3) of s 412 of the Industrial Act are valid laws made pursuant to s 77(i) of the Constitution. Their operation has the effect of enlivening the jurisdiction of the Industrial Court to hear matters remitted to it by this Court pursuant to s 44 of the Judiciary Act provided certain requirements discussed below are met.

75. The relationship between sub-ss (2) and (3) of s 412 is curious yet clear. The first sub-section is a general provision establishing the jurisdiction of the Industrial Court to hear prerogative writs sought against officers of the Commonwealth holding office under the Industrial Act or the Coal Industry Act 1946 (Cth) for the purposes of proceedings brought into the Industrial Court pursuant to s 44 of the Judiciary Act. The second sub-section establishes the Industrial Court's "coextensive"[66] jurisdiction to hear matters remitted to it under s 44 and is activated by the act of remitter by this Court. In this sense, it is sub-s (3) which invests jurisdiction in the Industrial Court when there is an exercise by this Court of its s 44 jurisdiction; sub-s (2) simply deems the Industrial Court to have jurisdiction for certain purposes germane to the s 44 jurisdiction.

76. The question then becomes whether s 44(1) of the Judiciary Act authorises this Court to remit matters which fall within the Court's exclusive s 38(e) jurisdiction to the Industrial Court. In my opinion, it does.

77. First, as I have explained above, s 412(3) of the Industrial Act invests jurisdiction in the Industrial Court when there is an exercise by this Court of its remitter power under s 44(1) of the Judiciary Act. It follows that, if this Court had remitted the present application, the Industrial Court would have had jurisdiction to determine it.

78. Second, the Industrial Court has, in accordance with the terms of s 44(1), "jurisdiction with respect to the subject-matter and the parties". The meaning of this phrase was explained by Gibbs J, with whom Murphy and Aickin JJ agreed (Stephen and Jacobs JJ dissenting), in Johnstone v The Commonwealth[67]. In the course of holding that s 44 empowered the Court to remit an action against the Commonwealth in tort to the Supreme Court of any State, Gibbs J stressed that "[t]here is no reason to give s 44 a narrow, restrictive construction"[68]. In accordance with this beneficial construction, his Honour held that the phrase "jurisdiction with respect to the subject-matter and the parties" did not require the court to which the matter was to be remitted to have had jurisdiction if the proceedings had been instituted in that court in the first instance. Rather, using the example of a tort action brought against the Commonwealth, he said that all that was necessary was that the court to which the proceedings were to be remitted should have "jurisdiction in tort and in matters in which the Commonwealth is a defendant"[69]. Murphy J succinctly made a similar point[70]:

"The words, 'subject-matter', in s 44 should not be construed as meaning 'the matter'."

79. Does the Industrial Court have jurisdiction over the subject-matter and the parties in the instant application? In my opinion, a literal reading of sub-ss (2) and (3) of s 412, the operation of which I have explained above, demands an affirmative answer. The prosecutor submitted that such a conclusion was erroneous because, contrary to the requirement in s 412(2), Moore J was not "an officer ... of the Commonwealth holding office under [the Industrial] Act". It was argued that his Honour held office under the Constitution and not under the Industrial Act. But this submission ignored the express terms of the Act. Section 361(3) makes it plain that "[t]he [Industrial] Court consists of a Chief Justice and as many other Judges as hold office under [the Industrial] Act" (emphasis added). It is also beyond question that Moore J is an officer of the Commonwealth[71]. The prosecutor's submission must be rejected.

80. The Commonwealth did not dispute that a literal reading of s 412 requires the conclusion that this Court does have the power to remit a s 38(e) application to the Industrial Court[72]. However, it contended that the "practical operation" of s 412 requires that the operation of that section in terms of a s 38(e) remitter be limited to officers of the Commonwealth holding office under the Industrial Act other than judges of the Industrial Court. The primary reason advanced for giving s 412 this limited application was the supervisory or non-reflexive nature of prerogative writs and the repugnance of a court directing such a remedy to itself or any member or members of the same court.

81. The supervisory or non-reflexive character of prerogative writs has been commented upon in both academic writings[73] and judicial decisions[74]. In R v Justices of the Central Criminal Court; Ex parte London County Council[75] Lord Hewart CJ rejected the notion that, by issuing a prerogative writ to itself, a superior court could quash an act which it had done. He commented[76]:

"[T]he process involves the rather ludicrous position that it calls upon judges to show cause to themselves why they should not be directed to remove, so that it may be quashed, something which they themselves have determined".

82. In the same application, Avory J said[77]:

"At first sight one would say that it cannot be correct to assert that any Court can issue a writ of certiorari directed to itself to quash an order made by itself." 83. Similar sentiments have been expressed in Australian decisions. In

R v Murray and Cormie; Ex parte The Commonwealth[78], Isaacs J said that "the inherent nature of prohibition or mandamus requires that the officer [who the writ is sought against] must be someone not a member of the tribunal to which the application is made, or superior to it". In Marriage of Bizannes[79], the Full Court of the Family Court of Australia (Evatt CJ, Asche and Lusink JJ), having set out s 75(v) of the Constitution and s 34 of the Family Law Act 1975 (Cth), which relevantly provided that the Family Court "has power, in relation to matters in which it has jurisdiction, to ... direct the issue of, writs of such kinds, as the court thinks appropriate", stated[80]:

"Even if there were power under the Constitution to do so it is difficult to read s 34 as giving to judges of the Family Court power to issue writs of prohibition against any other judge of that court. The clearest expression would be needed before deciding that such a power was created, since prohibition is normally issued by a superior court to an inferior court."

84. But in the instant application, the applicability of these authorities has to be measured in light of the statutory framework within which the application is brought. Those decisions that I have cited above which tend to support the so-called non-reflexive nature of prerogative writs were determined in the absence of legislative provisions commensurate to s 412 of the Industrial Act. That section is, using the terminology of Marriage of Bizannes[81], a "clear expression" that, provided the application for prerogative relief is remitted by this Court pursuant to s 44 of the Judiciary Act, the Industrial Court has jurisdiction[82].

85. It is also worth noting the comments of Isaacs J in The Tramways Case [No 1][83] as to the application of English pre-Judicature common law prerogative relief jurisprudence to Australian federal courts. In Re McJannet; Exparte Minister for Employment, Training and Industrial Relations (Q)[84], Toohey and Gummow JJ and myself summarised Isaacs J's thinking as follows:

"The tenor of what his Honour said is that notions derived from the position of the pre-Judicature common law courts of Queen's Bench, Common Pleas and Exchequer, as courts of the widest jurisdiction with respect to subject matter and identity of parties and therefore superior courts, have no ready application in Australia to federal courts. These owe their existence and their jurisdiction to the Constitution and to laws made by the Parliament."

86. Accordingly, decisions, which refer to the non-reflexive nature of prerogative writs and which invariably focus on the notion that such relief can only be directed at "inferior" courts or tribunals[85], must be read with caution when the unique nature of Australia's federal judicature, as created by the Constitution and the laws of the Commonwealth Parliament, is understood[86].

87. Moreover, an understanding of the true nature of this Court's s 44 remitter power demonstrates that concerns as to the repugnance of a member or members of one court granting prerogative relief against a member or members of that same court may be more illusory than real. If this Court had remitted the application to the Industrial Court, the matter would have gone to the Industrial Court only after this Court had exercised its original jurisdiction invoked pursuant to s 75(v) of the Constitution. The jurisdiction which the Industrial Court would have exercised would have been "coextensive with the jurisdiction of this Court"[87]. The nature of this jurisdiction, whereby the Industrial Court would "[stand] in the jurisdictional shoes of this Court"[88], is quite different from the Industrial Court's original or appellate jurisdiction[89].
88. It remains only to deal briefly with one further submission that was put by the Commonwealth as to why this Court does not have the power to remit the application. The Commonwealth submitted that the terms of s 415(2)(d) of the Industrial Act implied that the Industrial Court has no jurisdiction to issue prerogative writs directed to its own members. That section provides that the jurisdiction of the Industrial Court is to be exercised by a Full Court in relation to matters in which a writ of mandamus or prohibition is sought against a Presidential member of the Australian Industrial Relations Commission ("the Commission") or officers of the Commonwealth at least one of whom is a Presidential member. The Commonwealth contended that, if s 412 was intended to mean that the Industrial Court has jurisdiction to issue prerogative writs directed to its own members, it would be likely that s 415(2)(d) would refer also to matters in which such writs are sought against a member of that Court. It also contended that, in the absence of such a reference in s 415(2)(b), the issue of such writs would result in anomalous situations. A single member of the Industrial Court, for example, would be able to issue writs directed to a judge of the Industrial Court but only a Full Court would be able to issue a writ directed to a Presidential member of the Commission.

89. This submission reads too much into the terms of s 415 which merely regulates the business of the Industrial Court. It also ignores the fact that the section regulates the Industrial Court's original jurisdiction which, as I have explained, is not identical to the jurisdiction that the Industrial Court exercises when this Court remits an application pursuant to s 44. Further, any supposed anomaly of the type posited by the Commonwealth could be ameliorated by a suitable direction that the remitted application be heard by a Full Court of the Industrial Court. There is certainly no legislative provision that expressly or by implication prohibits such a direction. Indeed, s 44(1) of the Judiciary Act expresses the ability of the court to which the matter is remitted to control those proceedings to be "subject to any directions of the High Court".

Conclusion

90. Accordingly, pursuant to s 44 of the Judiciary Act, this Court had power to remit an application for writs of certiorari and mandamus to the Industrial Court where that application was brought in reliance upon s 75(v) of the Constitution and was directed against a decision of a single judge of the Industrial Court.

91. In the present case, however, the parties were before the Court ready to argue the merits of the case and had to argue the jurisdictional question in this Court before a decision on remitter could be made. That being so, I thought that questions of cost and convenience made it proper for the Court in the exercise of its discretion to refuse to remit the matter.

GUMMOW J.

92. The prosecutor seeks the issue of a writ of certiorari directed to a judge (Moore J) of the Industrial Relations Court of Australia ("the IRC") and others removing into this Court to be quashed a decision of that judge delivered 1 June 1995. His Honour dismissed a notice of motion by the prosecutor, filed 8 May 1995, seeking interim orders under s 221(1) of the Industrial Relations Act 1988 ("the Act")[90]. Section 221(1) provides for the making of various interim orders where there has been instituted an inquiry in relation to an election for offices in an organisation registered under the Act or a branch thereof. An application under s 218, for such an inquiry, had been lodged on 27 July 1994. Moore J dismissed the application under s 221(1) on the ground that, in particular, par (c) thereof did not confer upon the IRC authority to grant the relief sought. In this Court, the prosecutor also seeks the issue of a writ of mandamus directing Moore J to hear and determine the application by the prosecutor pursuant to s 221(1)(c) of the Act.

93. On 17 October 1995 I directed that the application by the prosecutor for mandamus and certiorari, which included an application for an extension of time under O 55 r 30 of the High Court Rules, be made by notice of motion to the Full Court.

94. In addition to the issue of the proper construction of par (c) of s 221(1) of the Act, there was a threshold question. It was whether this Court might remit the application to the IRC. That question in turn involved issues of construction of other provisions of the Act and of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

95. On 13 March 1996, after hearing submissions, the Court announced that it would not exercise the power to remit, if any, which it might have. The Court was then reconstituted to hear the remainder of the application on its merits.

96. What follows are my reasons for the conclusion that the Court lacked any power to remit the application to the IRC.

97. It first should be observed that the occasion for litigation in this Court is provided by the denial by the Act of any right of appeal to a Full Court of the IRC from the decision of Moore J in which he construed par (c) of s 221(1) in a manner adversely to the interests of the prosecutor. Section 420 confers appellate jurisdiction upon the IRC to hear and determine appeals from judgments of that Court constituted by a single judge, with the proviso that an appeal does not lie from an interlocutory judgment without a grant of leave to appeal. However, the effect of s 421 is that, notwithstanding s 420, an appeal does not lie to a Full Court from a judgment of a single judge in an election inquiry[91]. Further, s 432(1) states that an appeal does not lie to the High Court from a judgment of a single judge of the IRC under the Act.

98. Section 423(5) empowers the IRC constituted by a single judge to state a case or reserve a question concerning a matter for consideration of a Full Court but only if an appeal would lie to a Full Court from a judgment of the judge with respect to that matter. However, s 416(1) provides that at any stage of a proceeding in a matter arising under the Act a single judge may refer a question of law for the opinion of a Full Court and may, of the judge's own motion or on the application of a party, refer the matter to a Full Court to be heard and determined. That procedure was not adopted in respect of the application for interim relief under s 221(1). As I have indicated, his Honour proceeded to determine the questions of law which arose and dismissed the application.

99. If the course had been taken under s 416(1) of referring questions of law for the opinion of a Full Court, there would have been no appeal from the judgment of the Full Court to the High Court. That state of affairs is brought about by s 432(3).

100. It may be noted that, anomalously, where there is an avenue of appeal to this Court from a Full Court of the IRC, s 432(2) conditions it upon the grant by this Court not of special leave but of leave. The category of appeals by leave, rather than special leave, was removed from the Judiciary Act in 1976 when s 6 of the Judiciary Amendment Act 1976 (Cth) ("the 1976 Act") repealed s 35 as it then stood. This had required special leave in some cases and merely leave in others. The distinction had been analysed in Ex parte Bucknell[92].

101. The application to this Court for mandamus is made in reliance upon s 75(v) of the Constitution and that for certiorari upon s 31 of the Judiciary Act or the accrued jurisdiction attracted by the s 75(v) matter. There does not arise the jurisdictional difficulty that may be encountered where certiorari is sought independently of a claim for other relief for which provision is made in s 75(v)[93].

102. I turn to consider the provisions upon which turn the question of remitter. These show, and this was accepted in the submissions made in this case, that the only possible candidate for remitter is the IRC itself. No question can arise of remitter to a State court or to the Federal Court of Australia ("the Federal Court"). I turn to consider why this is so. Reference is required to s 39B and ss 38, 39 and 44 of the Judiciary Act.

103. Section 39B of the Judiciary Act is addressed to the Federal Court and is a law made pursuant to s 77(i) of the Constitution. It defines, within the terms of s 77(i), the jurisdiction of a federal court other than the High Court with respect to a matter mentioned in s 75(v) of the Constitution. Section 39B confers s 75(v) jurisdiction, but pars (a) and (aa) of sub-s (2) are presently significant qualifications. It states:

"(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:

(a) a person holding office under the Industrial Relations Act 1988 or the Coal Industry Act 1946; or

(aa) without limiting paragraph (a) of this subsection, a Judge or Judges of the Industrial Relations Court of Australia; or

(b) a Judge or Judges of the Family Court of Australia."

104. The explicit exclusion from the conferral of jurisdiction by s 39B of the Judiciary Act of judges of the IRC was achieved by the insertion in s 39B(2) of par (aa) by Sched 4 to the Industrial Relations Reform Act 1993 (Cth) ("the 1993 Act"). Section 56 of the 1993 Act amended the Act by the addition of a new Pt XIV (ss 360-487) which established the IRC.
105. It will be observed that the exclusions in s 39B(2) do not specify the judges of the Federal Court themselves. However, in Bird v Free[94], a judge of the Federal Court held that, notwithstanding the limited categories explicitly excluded by s 39B(2), one judge of the Federal Court had no jurisdiction under s 39B(1) to issue a writ of mandamus or prohibition or an injunction against another judge of that Court acting as such. The reasoning to that conclusion appears in the following passage from the judgment of Drummond J[95]:

"It was unnecessary ... for the Parliament to also expressly exclude from the jurisdiction of the Federal Court authority to issue prerogative writs and injunctions against judges of that same court. By s 19(1) [of] the Federal Court of Australia Act 1976 (Cth) the Federal Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament. This includes the jurisdiction vested in the court by s 39B [of] the Judiciary Act.

The Federal Court of Australia consists of the judges of the court: s 5(3) of the Federal Court of Australia Act. The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the court acting as such would mean that the authority vested only in all the judges as a group can be treated, as occasion arises, as an authority vested in all save one of the judges and exercisable against that one judge, by the rest. Section 39B of the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the court, ie, in all the judges who make up the court. It matters not that the authority vested only in the group is by force of s 20(1) of the Federal Court of Australia Act exercisable by a single member of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other judges of the court."

106. Section 38(e) of the Judiciary Act renders, subject to s 44, exclusive of the jurisdiction of the several courts of the States, the jurisdiction of the High Court in matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court. This is a law made under s 77(ii) of the Constitution. It defines, within the meaning of that provision, the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States.

107. Section 38 of the Judiciary Act, in addition to the matters identified in par (e), renders the jurisdiction of the High Court exclusive of the several courts of the States in the matters identified in pars (a), (b), (c) and (d). These deal with such matters as those arising directly under any treaty, suits between States, suits by the Commonwealth against a State, and suits by a State against the Commonwealth. The general investment of State courts with federal jurisdiction in civil matters which is effected by s 39 operates, as s 39(1) provides, only in respect of that jurisdiction of the High Court which is not rendered exclusive by s 38. However, where a matter referred to in one of pars (a), (b), (c) or (d) of s 38 is at any time pending in the High Court, the High Court may, upon application of a party or of the High Court's own motion, remit the matter, or part of it, to the Federal Court or to any court of a State or Territory. Section 44(2) of the Judiciary Act so provides.

108. As will be apparent, there is no such authority conferred by s 44(2) for remitter of matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court, as provided in par (e) of s 38. Nor does the remitter power conferred by s 44(2A) apply to a matter pending in the High Court in which a writ of mandamus or prohibition is sought as specified in par (e) of s 38. The power of remitter in s 44(2A) is one to remit the matter or any part of it to the Federal Court where the matter pending in this Court is one in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party.

109. Section 44 should now be set out in full. It states[96]:

"(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 any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia or any court of a State or Territory.

(2A) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.

155. That conclusion leaves a final argument for consideration. It is that in giving meaning to "officers of the Commonwealth holding office under this Act" in s 412(2), this Court should read the expression down so as to exclude, for the application of the "prerogative writs", Judges of the Industrial Relations Court themselves. I would uphold that argument. The mere fact that for constitutional and other purposes judges of federal courts, in this context the Industrial Relations Court, are "officers of the Commonwealth" does not determine whether they are such in the context of s 412(2) of the Act. There are many features of the context which suggest otherwise. These include the long history of writs such as mandamus as "non-reflexive"; the express exclusion of such Judges from the supervisory jurisdiction of the Federal Court; the lack of any clear provision rendering such Judges answerable to such writs, and thus parties, before their own Court; and indications elsewhere in the Act that the contrary was intended. Those indications include the provisions of s 415 of the Act. That section provides, relevantly:

"(1) Subject to subsection (2) and section 423 [dealing with appellate jurisdiction], the jurisdiction of the Court may be exercised by a single Judge.

(2) The jurisdiction of the Court is to be exercised by a Full Court in relation to:

...

(d) matters in which a writ of mandamus or prohibition or an inunction is sought against:

(i) a Presidential member; or

(ii) officers of the Commonwealth at least one of whom is a Presidential member."

156. The "Presidential member" referred to is defined in s 4(1) of the Act to mean "the President, a Vice President, a Senior Deputy President or a Deputy President" of the Australian Industrial Relations Commission created by the Act. Heretofore, Presidential members of the Australian Industrial Relations Commission have enjoyed the same rank and status as Judges of the Industrial Relations Court[150]. This helps to explain the exclusion from the supervisory jurisdiction of the Federal Court of persons holding office under the Act[151]. Exceptionally, the Industrial Relations Reform Act 1993 (Cth) had inserted s 415 in the Act and rendered Presidential members of the Commission, along with other officers of the Commonwealth "at least one of whom is a Presidential member", amenable to the supervisory jurisdiction of the Industrial Relations Court, exercised by the Full Court of that Court. No express mention is made that the jurisdiction of the Court is to be exercised by a Full Court in relation, relevantly, to the issue of a writ of mandamus against a Judge of the Court. By inference, therefore, that supposed jurisdiction would be left to a single Judge pursuant to s 415(1) of the Act. This consequence has only to be stated to demonstrate that the Parliament did not intend to confer upon the Industrial Relations Court supervisory jurisdiction in respect of its own Judges. It is not expressly provided, as would (at least) have been necessary to alter a fundamental character of the writ of mandamus. On the contrary, the express indications given by the Parliament make it clear that no such conferral of jurisdiction was intended. The mere fact that this Court, out of its powers, may provide a direction that the matter remitted be heard by a Full Court of the Industrial Relations Court cannot alter the character of the proceeding within that Court. Despite any such direction, the proceeding would be in the original and not the appellate jurisdiction of the Court, a fact which would heighten the anomaly of remitting it to the very court to be supervised. For such a power clear and express legislative provision would be required. It does not exist here.

157. In these circumstances, the Industrial Relations Court is not, within s 44(1) a federal court which has jurisdiction with respect to the subject-matter and the parties. It has neither. This Court could not, therefore, lawfully remit the matter to the Industrial Relations Court, within the only statutory provisions relied upon for that purpose. It was on that basis that I joined in the order of the Court declining remittal.

Conclusion and orders

158. The conclusion which I reached as to power made it unnecessary for me to consider the discretionary reasons advanced by the prosecutor for refusing remittal in any case. These included the absence of a statutory appeal; the suggested embarrassment of a return of a matter to a superior court of which the judge in question was a party; the absence from this case of the conventional reasons sometimes given for remittals[152]; and the convenience of hearing the matter in this Court. Had there been any power to remit, I would not have favoured exercising it in this case.

159. The power to award costs to a party to a proceeding in a matter arising under the Act is controlled by s 347(1). Costs may only be ordered if the party instituted "the proceeding" vexatiously or without reasonable cause. Assuming the relevant "proceeding" to be the application giving rise to the question of remittal, it could certainly not be said to qualify for the exception. Assuming the "proceeding" to be the application by the prosecutor, I would reach the same conclusion so far as this part of the proceeding is concerned, in which he has succeeded in resisting the remittal[153].

160. The application for remittal to the Industrial Relations Court of Australia was refused by the decision of this Court on 13 March 1996. The foregoing are my reasons for joining in that refusal. This Court had no power to accede to the request.

[1] (1996) 70 ALJR 550; 136 ALR 233.
[2] At the time when the application for remittal was made, s 39B of the Judiciary Act read as follows:

" (1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:

(a) a person holding office under the Industrial Relations Act 1988 or the Coal Industry Act 1946; or

(aa) without limiting paragraph (a) of this subsection, a Judge or Judges of the Industrial Relations Court of Australia; or

(b) a Judge or Judges of the Family Court of Australia."
[3] This judgment refers to the statutory position as it stood at the relevant time.
[4] s 56.
[5] Industrial Relations Act, ss 370(1) and 415(1).
[6] Industrial Relations Act, s 421.
[7] Gray v Dalgety & Co Ltd (1916) 21 CLR 509 at 542.
[8] R v Justices of the Central Criminal Court; Ex parte London City Council [1925] 2 KB 43 at 58-59, 60-61.
[9] (1916) 22 CLR 437 at 453. See also Marriage of Bizannes (1977) 3 Fam LR 11,555 at 11,562; Bird v Free (1994) 126 ALR 475 at 478-480; Schoombee, The Laws of Australia, Title 2.6, ch 4 ("Prerogative Orders") par 106.
[10] Federated Engine Drivers' and Firemen's Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 at 117. See also Re Brennan; Exparte Muldowney (1993) 67 ALJR 837 at 839; 116 ALR 619 at 622.
[11] The Tramways Case [No 1] (1914) 18 CLR 54 at 70-71; Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 at 553.
[12] R v Barker (1762) 3 Burr 1265 at 1267 [97 ER 823 at 824-825].
[13] 3 Bl Comm 110; Short and Mellor, The Practice of the Crown Office, 2nd ed (1908) at 197, 202.
[14] Pitfield v Franki (1970) 123 CLR 448; R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 25-26, 32-33; Re Coldham; Ex parte Brideson (1989) 166 CLR 338 at 348.
[15] The Industrial Relations Act 1988 (Cth) has been renamed the Workplace Relations Act 1996 (Cth), and that Act and others have been amended in other respects, by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). Further amendments were introduced by the Workplace Relations and Other Legislation Amendment Act (No 2) 1996 (Cth). This judgment refers in the present tense to the statutory position as it stood at the relevant time.
[16] See Re Jarman; Ex parte Cook [No 2] (1996) 70 ALJR 550; 136 ALR 233.
[17] Unreported, 13 December 1994.
[18] See Re Keely; Ex parte Kingham (1995) 1 IRCR 311; 129 ALR 255.
[19] (1979) 143 CLR 190 at 215.
[20] s 361(1).
[21] s 361(2).
[22] s 361(3).
[23] (1979) 143 CLR 398.
[24] (1994) 126 ALR 475 at 479.
[25] s 415(2)(d).
[26] See South Eastern Railway Company v Smitherman (1883) 47 JP 773, cited in Musgrove v McDonald (1905) 3 CLR 132 at 147-148.
[27] (1970) 122 CLR 69 at 91.
[28] See R v Justices of the Central Criminal Court; Ex parte London County Council [1925] 2 KB 43 at 58.
[29] Federated Engine Drivers' and Firemen's Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 at 117; R v Murray and Cormie; Exparte The Commonwealth (1916) 22 CLR 437 at 452-453. See also Re Brennan; Ex parte Muldowney (1993) 67 ALJR 837; 116 ALR 619.
[30] See R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 385-389 per Deane J.
[31] See ss 210, 215, 217.
[32] Re Communication Workers' Union (1995) 62 IR 462 at 466.
[33] All references to the Act are as at the time of the hearing in this Court. Substantial amendments have been made since then, including the transfer of the jurisdiction of the Industrial Relations Court to the Federal Court of Australia: see Workplace Relations and Other Legislation Amendment Act 1996 (Cth).
[34] Section 423(5) provides that "a single Judge may state a case, or reserve a question, for a Full Court's consideration, concerning a matter if an appeal would lie to a Full Court from a judgment of the Judge with respect to that matter." Section 423 lies within Pt XIV Div 5 Subdiv B of the Act - "Appellate and related jurisdiction". On the other hand s 416(1), which is within Pt XIV Div 5 Subdiv A - Original jurisdiction - empowers a Judge "[a]t any stage of a proceeding in a matter arising under this Act" to "refer a question of law for the opinion of a Full Court". Had Moore J employed s 416(1), no appeal would lie to the High Court from the judgment of the Full Court: s 432(3).
[35] s 44(3).
[36] (1984) 154 CLR 579 at 583-584.
[37] (1989) 86 ALR 31 at 33.
[38] (1986) 61 ALJR 235 at 238; 69 ALR 270 at 275-276.
[39] Although, as noted earlier, the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) transfers jurisdiction from the Industrial Relations Court back to the Federal Court.
[40] Johnstone v The Commonwealth (1979) 143 CLR 398 at 408 per Aickin J.
[41] R v Federal Court of Australia; Exparte WA National Football League (1979) 143 CLR 190 at 200-201, 215, 221, 238; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193, 203, 207-208, 215; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652.
[42] s 361.
[43] s 362.
[44] Likewise, the Federal Court of Australia Act 1976 (Cth), s 5(3) provides that the Federal Court consists of a Chief Justice and such other Judges "as from time to time hold office in accordance with this Act."
[45] (1995) 1 IRCR 311 at 316.
[46] (1995) 1 IRCR 311 at 315.
[47] (1994) 126 ALR 475.
[48] As to the High Court, see Re Toohey; Ex parte Gunter (1996) 70 ALJR 644.
[49] (1994) 126 ALR 475 at 479.
[50] (1987) 162 CLR 514 at 518.
[51] Johnstone v The Commonwealth (1979) 143 CLR 398 at 408 per Aickin J.
[52] (1978) 139 CLR 482.
[53] See (1978) 139 CLR 482 at 484.
[54] (1970) 123 CLR 448.
[55] (1980) 147 CLR 15 at 33-34.
[56] (1989) 166 CLR 338 at 348.
[57] (1980) 147 CLR 15 at 33-34.
[58] (1984) 156 CLR 185 at 215.
[59] Because the Court adopted this course, and because the writ of certiorari was not sought independently of the writ of mandamus, it is not necessary to consider issues appertaining to the power of this Court to grant certiorari in pursuance of its s 75(v) jurisdiction.
[60] The Industrial Act has been renamed the Workplace Relations Act 1996 (Cth) and has undergone substantial modifications since the current proceedings were initiated. My discussion is limited to the Act as it applied at the relevant time.
[61] Re Communication Workers' Union (1995) 62 IR 462.
[62] s 421 of the Industrial Act. WilcoxCJ has expressed concern as to the undesirability of limiting rights of appeal in election inquiries in this fashion: see Re Keely; Ex parte Kingham (1995) 1 IRCR 311 at 341-342.
[63] (1989) 86 ALR 31 at 33.
[64] This analogous nature of ss 44(2) and 44(2A) is implicit in s 44(3).
[65] Ah Yick v Lehmert (1905) 2 CLR 593 at 603-604; The State of New South Wales v The Commonwealth (1915) 20 CLR 54 at 90.
[66] Johnstone v The Commonwealth (1979) 143 CLR 398 at 408.
[67] (1979) 143 CLR 398.
[68] Johnstone (1979) 143 CLR 398 at 402; see also Murphy J at 407: "[t]he section should be construed beneficially rather than narrowly".
[69] Johnstone (1979) 143 CLR 398 at 402.
[70] Johnstone (1979) 143 CLR 398 at 407.
[71] R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 385; Re McJannet; Exparte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652.
[72] This is also the conclusion that was reached by WilcoxCJ in Re Keely (1995) 1 IRCR 311 at 316.
[73] See The Laws of Australia, Title 2.6, par 106.
[74] For example, R v Justices of the Central Criminal Court; Ex parte London County Council [1925] 2 KB 43; Marriage of Bizannes (1977) 3 Fam LR 11,555; Bird v Free (1994) 126 ALR 475.
[75] [1925] 2 KB 43.
[76] Justices of the Central Criminal Court [1925] 2 KB 43 at 58-59.
[77] Justices of the Central Criminal Court [1925] 2 KB 43 at 60.
[78] (1916) 22 CLR 437 at 453.
[79] (1977) 3 Fam LR 11,555.
[80] (1977) 3 Fam LR 11,555 at 11,562.
[81] (1977) 3 Fam LR 11,555 at 11,562.
[82] These observations are also apposite to Drummond J's discussion of similar issues pertinent to the Federal Court of Australia: see Bird (1994) 126 ALR 475 at 478-480.
[83] (1914) 18 CLR 54 at 75. cf R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 201.
[84] (1995) 184 CLR 620 at 652-653.
[85] See Murray and Cormie (1916) 22 CLR 437 at 453; Justices of the Central Criminal Court [1925] 2 KB 43 at 58-59, 60; Bizannes (1977) 3 Fam LR 11,555 at 11,562.
[86] R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 384-385 per Deane J; McJannet (1995) 184 CLR 620 at 652-653.
[87] Johnstone (1979) 143 CLR 398 at 408.
[88] McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235 at 238; 69 ALR 270 at 275.
[89] In this sense, the heading "Original jurisdiction" for Subdiv A of Div 5 of Part XIV of the Industrial Act is misleading, at least in so far as it relates to the Industrial Court's s 412(3) jurisdiction when enlivened by a remitter by this Court pursuant to s 44 of the Judiciary Act.
[90] The short title of the Act was changed to the Workplace Relations Act 1996 (Cth) by Sched 19 to the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the 1996 Act"). Schedule 16 provides for the transfer to the Federal Court of Australia of the jurisdiction of the IRC and of certain pending proceedings in the IRC. Save where expressly indicated, references in the judgment are made to the legislation in its earlier form.
[91] Schedule 16 to the 1996 Act provides for the repeal of s 421 and the substitution of a new s 421. This new section provides that an appeal from a judgment by a judge of the Federal Court in an election inquiry does not lie to the Full Court of that Court except in accordance with leave granted by that Court. The provision with respect to leave is a significant change in the statutory scheme.
[92] (1936) 56 CLR 221 at 223-227.
[93] See R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 25-26, 33-34; Re Coldham; Ex parte Brideson (1989) 166 CLR 338 at 348-349; Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978) at 51.
[94] (1994) 126 ALR 475.
[95] (1994) 126 ALR 475 at 478-479.
[96] Previously, s 45(1) of the Judiciary Act had provided: "Any matter which is at any time pending in the High Court, whether originally commenced in the High Court or not, may be remitted for trial to any Court of a State which has federal jurisdiction with regard to the subject-matter and the parties." Section 45 was repealed by s 9 of the 1976 Act which substituted a new Pt VII, including the first version of the present s 44.
[97] (1986) 61 ALJR 235 at 238; 69 ALR 270 at 275-276.
[98] See R v Langdon; Ex parte Langdon (1953) 88 CLR 158 at 161, 163; Barwick, "The Australian Judicial System: The Proposed New Federal Superior Court", (1964) 1 Federal Law Review 1 at 9-15; cf Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978) at 75-81.
[99] Illinois v City of Milwaukee 406 US 91 at 93-94 (1972). See also Ohio v Wyandotte Chemicals Corp 401 US 493 (1971); Wright, Law of Federal Courts, 5th ed (1994) at 809-811; Chemerinsky, Federal Jurisdiction, 2nd ed (1994) at 582-584; McKusick, "Discretionary Gatekeeping: The Supreme Court's Management of Its Original Jurisdiction Docket Since 1961", (1993) 45 Maine Law Review 185 at 201-202. The Supreme Court exercises a discretion even where, as in actions between States, its Art III jurisdiction is exclusive: Wyoming v Oklahoma 117 L Ed 2d 1 at 19-20, 35-36 (1992).
[100] Ohio v Wyandotte Chemicals Corp 401 US 493 at 496-497 (1971).
[101] (1979) 143 CLR 398 at 408-409.
[102] (1994) 126 ALR 475.
[103] Federated Engine Drivers' and Firemen's Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 at 117; R v Murray and Cormie; Exparte The Commonwealth (1916) 22 CLR 437 at 452-453. See also Re Brennan; Ex parte Muldowney (1993) 67 ALJR 837; 116 ALR 619.
[104] The Tramways Case [No 1] (1914) 18 CLR 54 at 75; R v Ross-Jones; Exparte Green (1984) 156 CLR 185 at 217-218; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 384-385; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652-653.
[105] Musgrove v McDonald (1905) 3 CLR 132 at 147-148; Kotsis v Kotsis (1970) 122 CLR 69 at 91. Judgment was entered on the roll or record of the court unless within the first four days of the next term a motion had been made to the court in banc for arrest of judgment for intrinsic cause apparent on the face of the record, for entry of judgment non obstante veredicto, or for a new trial before another jury: Blackstone, Commentaries on the Laws of England, 1st ed (1765-1769), vol 3 at 389-395; see also Bennet v Holbech (1670) 2 Wms Saund 309 at 319, note (h) [85 ER 1108 at 1118-1120]; R S Howard & Sons Ltd v Brunton (1916) 21 CLR 366 at 372-373; Gasperini v Center for Humanities Inc 135 L Ed 2d 659 at 691 (1996). The court in banc also dealt with special cases and points reserved at the trial: Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 379; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 483-484. The right of appeal, as now understood, was unknown in the common law courts and is the creature of s 73 of the Constitution or of statute: Davern v Messel (1984) 155 CLR 21 at 47.
[106] R v Justices of the Central Criminal Court; Ex parte London County Council [1925] 2 KB 43 at 58-59.
[107] Unreported, High Court of Australia, 13 December 1994. The proceedings in the Industrial Relations Court of Australia are reported as Re Keely; Ex parte Kingham (1995) 1 IRCR 311.
[108] Re Keely; Ex parte Kingham (1995) 1 IRCR 311.
[109] Re Jarman; Ex parte Cooke [No 2] (1996) 70 ALJR 550; 136 ALR 233.
[110] Industrial Relations Act 1988 (Cth), s 219(b).
[111] The Industrial Relations Act 1988 (Cth) was renamed the Workplace Relations Act 1996 (Cth) by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sched 19. References to "the Act" in these reasons are to the Act as it previously applied.
[112] Re Communication Workers' Union (1995) 62 IR 462 at 465-466.
[113] Section 118B(1)(a). The desirability of a facility of appeal was noted in Re Keely (1995) 1 IRCR at 341-342 per Wilcox CJ; cf Ince Bros and Cambridge Manufacturing Co Pty Ltd v Federated Clothing and Allied Trades Union (1924) 34 CLR 457 at 464.

[114] See now Workplace Relations Act (1996) (Cth), s 421. By the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sch 16, the jurisdiction previously conferred upon the Industrial Relations Court is (save for exceptions immaterial to the present proceedings) returned to the Federal Court of Australia.
[115] See for example ss 32, 33.
[116] R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193, 203, 207-208, 215; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652.
[117] Johnstone v The Commonwealth (1979) 143 CLR 398 at 402.
[118] (1995) 1 IRCR 311.
[119] State Bank (NSW) v Commonwealth Savings Bank (1984) 154 CLR 579 at 583-584.
[120] Johnstone v The Commonwealth (1980) 143 CLR 398 at 407; cf State Bank (NSW) v Commonwealth Savings Bank (1984) 154 CLR 579 at 583
[121] Re Sutton; Ex parte Victoria (1995) 69 ALJR 563. See also Deane J dissenting in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 223.
[122] R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 223-224.
[123] Ince Bros and Cambridge Manufacturing Co Pty Ltd v Federated Clothing and Allied Trades Union (1924) 34 CLR 457 at 464. See also Re Griffin; Ex parte Professional Radio and Electronics Institute (Aust) (1988) 167 CLR 37 at 40.
[124] See Judiciary Act 1903 (Cth), s 35(2) and Federal Court of Australia Act 1976 (Cth), s 33(3). cf Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 206-207.
[125] State Bank (NSW) v Commonwealth Savings Bank (1984) 154 CLR 579 at 582.
[126] Cowen cited in Lindell, "Duty to Exercise Judicial Review" in Zines (ed), Commentaries on the Australian Constitution, (1977) 150 at 155. The contrary view of Howard is there noted.
[127] See Judiciary Act 1903 (Cth), s 39B; the Act, s 412(2).
[128] Johnstone v The Commonwealth (1979) 143 CLR 398 at 409 per Aickin J.
[129] Johnstone v The Commonwealth (1979) 143 CLR 398 at 402 per Gibbs J.
[130] Ince Bros and Cambridge Manufacturing Co Pty Ltd v Federated Clothing and Allied Trades Union (1924) 34 CLR 457 at464.
[131] R v The District Court of the Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488 at 491; R v Dunphy; Ex parte Maynes (1978) 139 CLR 482 at 484.
[132] R v Ross-Jones (1984) 156 CLR 185 at 215.
[133] cf Deane J in R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 387, 389.
[134] Re McJannet (1995) 184 CLR 620 at 652-653.
[135] Johnstone v The Commonwealth (1979) 143 CLR 398 at 408 per Aickin J.
[136] McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235 at 238; 69 ALR 270 at 275-276.
[137] Johnstone v The Commonwealth (1979) 143 CLR 398 at 407.
[138] (1979) 143 CLR 398 at 407.
[139] Johnstone v The Commonwealth (1979) 143 CLR 398 at 402.
[140] cf Wilcoxv Donohoe (1905) 3 CLR 83 at 88; R v Federal Court of Australia; Exparte WA National Football League (1979) 143 CLR 190 at 201.
[141] R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 201.
[142] R v Murray & Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452-453.
[143] Re McJannet (1995) 184 CLR 620 at 652-653.
[144] R v Justices of the Central Criminal Court; Ex parte London County Council [1925] 2 KB 43 at 58-59, 60.
[145] Marriage of Bizannes (1977) 3 Fam LR 11,555 at 11,562.
[146] (1995) 184 CLR 620 at 652-653.
[147] Judiciary Act 1903 (Cth), s 39B(2)(aa).
[148] Potter v Minahan (1908) 7 CLR 277 at 304; Baker v Campbell (1983) 153 CLR 52 at 123; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 331, 338.
[149] (1984) 154 CLR 579 at 583.
[150] The Act, s 9(2). Similarly, under the Conciliation and Arbitration Act 1904 (Cth), s 7(5), Presidential members of the Australian Conciliation and Arbitration Commission enjoyed the same rank and status as Judges of the Australian Industrial Court.
[151] See Judiciary Act 1903 (Cth), s 39B(2)(a).
[152] R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 222-224 per Deane J.
[153] cf Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 93-94.