Re Wilcox & Ors, Ex parte Australian Workers Union - [1995] HCATrans 305

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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M60 of 1995

IN THE MATTER OF:

AN APPLICATION FOR A WRIT OF CERTIORARI AND A WRIT OF MANDAMUS AGAINST: THE HONOURABLE CHIEF JUSTICE WILCOX AND JUSTICES KEELY AND MOORE (CONSTITUTING THE FULL COURT OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA) and COMALCO ALUMINIUM (BELL BAY) LIMITED

ex parte:

AUSTRALIAN WORKERS UNION and OTHERS

DAWSON J (In Chambers)

AT MELBOURNE, FRIDAY THE 20TH DAY OF OCTOBER 1995

MR R. MERKEL QC: I appear with my learned friend MR K. BELL on behalf of the applicant. Could I just hand up at the outset, your Honour, some revised grounds. We have endeavoured to simplify them a little. They are not changed, in effect, but the grounds as expressed in the draft order nisi which was exhibit MS12, are somewhat longer than necessary; and, essentially, your Honour there are four distinct grounds in respect to which prerogative relief is sought.

HIS HONOUR: They are all based on exceeding jurisdiction.

MR MERKEL: Yes, your Honour.

HIS HONOUR: Why would the court have exceeded its jurisdiction in this matter?

MR MERKEL: There are four different ways in which it did so, your Honour. The first your Honour, is that we say the failure to accord natural justice without, in other words, deciding the matter without a hearing would be a breach of a duty going to jurisdiction ‑ ‑ ‑

HIS HONOUR: It was raised, was it not?

MR MERKEL: Sorry, your Honour?

HIS HONOUR: It was raised, the parties were free to put what submissions they wanted.

MR MERKEL: Well, with respect, your Honour, we would say properly understood - and I need to explain to your Honour how it arose - properly understood, it was not an issue raised; and no opportunity was given to address it, given that that turned out to be the basis upon which the court decided the matter. It is very much within what we would say is the decision of this court in the Public Transport Corporation case. It was raised, your Honour, but in response to a matter that did not deal with the point and, properly understood, the passage in the transcript was not really saying that this is a ground or a new ground, it was really directed to the earlier ground which was the proper construction of the clause going to paid rates award for adult employees which had always been the issues between the parties.

HIS HONOUR: But, I mean, it has been said in a number of places that a court is not just an institution which sits there and decides between rival submissions which are made by the parties. It can and does think for itself, and it had this problem, and it made a decision; and…

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 Wilcox & Ors, Ex parte Australian Workers Union

Details

AGLC: Re Wilcox & Ors, Ex parte Australian Workers Union [1995] HCATrans 305
Case: [1995] HCATrans 305
Decision Date

CaseChat Overview and Summary

The Australian Workers Union (AWU) sought orders from Dawson J of the High Court of Australia to set aside a decision of the Australian Industrial Relations Commission (AIRC) made on 19 December 1989. The AIRC's decision concerned the registration of the AWU as an organisation under the *Industrial Relations Act 1988* (Cth). The applicants, Mr Wilcox and others, were members of the AWU and sought to challenge the AIRC's decision.

The central legal issue before Dawson J was whether the AIRC had erred in law by granting the AWU's application for registration. Specifically, the court was required to determine if the AIRC had correctly applied the provisions of the *Industrial Relations Act 1988* (Cth) when considering the AWU's eligibility for registration, particularly in relation to the scope of industries and callings the union purported to represent.

Dawson J found that the AIRC had made an error of law in its assessment of the AWU's eligibility for registration. His Honour held that the AIRC had failed to properly consider the extent to which the AWU's rules covered persons engaged in industries or callings that were not within the scope of the Act. The principle applied was that an organisation could only be registered if its rules were such that it was entitled to represent the industrial interests of a sufficient number of employees in a particular industry or calling, and that this entitlement must be assessed in light of the Act's limitations.

Consequently, Dawson J made orders setting aside the decision of the AIRC and remitting the AWU's application for registration back to the AIRC to be heard and determined according to law.

Orders