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Re Jarman; Ex parte Cook (No 2)

Re Jarman; Ex parte Cook (No 2)

Case [1996] HCA 7 14 March 1996

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HIGH COURT OF AUSTRALIA

BRENNAN CJ , GAUDRON AND KIRBY JJ

In the Matter of - AN APPLICATION FOR A WRIT OF CERTIORARI AND A WRIT OF MANDAMUS (First Respondent) AND AGAINST THE HONOURABLE JUSTICE MOORE, ALAN JARMAN (Second Respondent), COMMUNICATION WORKERS UNION OF AUSTRALIA (Third Respondent), AUSTRALIAN ELECTORAL COMMISSION (Fourth Respondent) EX PARTE - QUENTIN REDVERS COOK (No. 2)

15 May 1996

Industrial Law—Industrial Relations Court of Australia—Election of union officers—Inquiry into election irregularity—"an office to which the inquiry relates"—Limited to offices the election for which is the subject of the inquiry—Industrial Relations Act 1988 (Cth), Pt IX Div 5: ss 218, 221, 223. Industrial Law—Prerogative relief—Writs of certiorari and mandamus to compel exercise of jurisdiction by the Industrial Relations Court of Australia—Notice of motion referred to the Full Court dismissed—Costs—"without reasonable cause"—Industrial Relations Act 1988 (Cth), s 347(1). Words and phrases—"relates". Industrial Relations Act 1988 (Cth), Pt IX Div 5: ss 218, 221, 223, 226(1), 347(1).

Headnote

Hearing

CANBERRA, 13 and 14 March 1996
#DATE 15:5:1996

Counsel for the Applicant: P.E. King and M.J. Cohen

Solicitor for the Applicant: Paul Etherington and Associates

Counsel for 2nd Respondent: W.R. Haylen, QC and N.H. Rudland

Solicitors for 2nd Respondent: McClellands

Counsel for 3rd Respondent: W.R. Haylen, QC and R. Reitano

Solicitors for 3rd Respondent: R.L. Whyburn and Associates

Intervener:
S.C. Rothman SC instructed by Maurice May and Co. (5th Respondent)

Orders

1. Motion of writs of certiorari and mandamus dismissed.
2. Costs reserved.

Decisions

BRENNAN CJ AND GAUDRON J. The prosecutor moves on notice for the issue of writs of certiorari and mandamus directed to Moore J of the Industrial Relations Court of Australia. When this motion was listed before a Full Court constituted by seven Justices, an application was made for the matter to be remitted to the Industrial Relations Court. Submissions were made as to the power of this Court to remit to the Industrial Relations Court matters in which a writ of mandamus directed to a Judge of that Court is sought under s 75(v) of the Constitution. The Court announced that it would not exercise the power, if any, that it has to remit. The reasons for that decision will follow in due course (1). The Court then reconstituted to hear the motion on its merits.

2. At issue are the powers of the Industrial Relations Court under Div 5 of Pt IX of the Industrial Relations Act 1988 (Cth) ("the Act") in relation to an inquiry into an election to certain offices of the Postal and Telecommunications Branch, New South Wales ("the branch") of the Communication Workers' Union of Australia ("the Union"). Since the institution of the inquiry, the Union has amalgamated with another organisation to form the Communications, Electricians and Plumbers Union ("CEPU"). The amalgamation is irrelevant to the issues now to be determined.

3. Rule 77 of the Union rules provides for the election of office-holders, some of whom hold what are described as "full-time positions", others of whom are part-time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Jarman; Ex parte Cook (No 2)

Details

AGLC: Re Jarman; Ex parte Cook (No 2) [1996] HCA 7
Case: [1996] HCA 7
Decision Date: 14 March 1996

CaseChat Overview and Summary

The Industrial Relations Court of Australia, constituted by Brennan CJ, Gaudron and Kirby JJ, considered an application by Mr Cook for prerogative relief in the form of writs of certiorari and mandamus. The application arose from an inquiry conducted by the Court into alleged irregularities in an election for union officers. Mr Cook sought to compel the Court to exercise its jurisdiction in relation to certain offices, the election for which he contended was the subject of the inquiry.

The central legal issue before the Full Court was the proper construction of the phrase "an office to which the inquiry relates" within Part IX Division 5 of the *Industrial Relations Act 1988* (Cth). Specifically, the Court had to determine whether this phrase limited the scope of the inquiry to only those offices for which specific irregularities had been alleged and investigated, or if it extended to other offices within the union. A further issue concerned the application of section 347(1) of the Act, which deals with costs awarded against a party acting "without reasonable cause".

The Court reasoned that the phrase "an office to which the inquiry relates" in section 221 of the Act confined the Court's power to inquire into irregularities to those offices for which the election was the subject of the inquiry. This meant that the inquiry could not be extended to offices where no specific allegations of irregularity had been made or investigated. The Court also considered the nature of prerogative relief, noting that it was available to compel the exercise of jurisdiction but not to direct the manner in which that jurisdiction should be exercised. The Court dismissed the notice of motion, finding that the applicant had not demonstrated that the Court had failed to exercise its jurisdiction in relation to the relevant offices.

The Court ordered that the notice of motion be dismissed.

Orders