R v Commonwealth Court of Conciliation and Arbitration and the Australian Journalists' Association

[1919] HCA 25

26 CLR 404

THE COMMONWEALTH COURT OF CONCILIATION AND

ARBITRATION AND THE AUSTRALIAN JOURNALISTS' ASSOCIATION. Ex PARTE THE DAILY NEWS PROPRIETARY LIMITED. MELBOURNE,

Industrial Arbitration--Award--Commonwealth Court of Conciliation and Arbitra- May 19-20,

lion-Deputy President-Prohibition-Th Constitution (63 &64 Vict. c. 12), June 11,

sec. 51 (xxxv.)-Commonwealth Conciliation and Arbitration Act 1904-1915 (No. 13 of 1904-No. 35 of 1915).

Orders nisi for prohibition in respect of an award were discharged by the High Court.

26 CLR 405

ORDERS nisi for prohibition.

A plaint in the Commonwealth Court of Conciliation and Arbitra- tion, in which the Australian Journalists' Association was claimant and the Sydney Daily Newspapers Employers' Association and a number of proprietors of newspapers throughout the Common- wealth were respondents, was heard by Isaacs J., who had been appointed Deputy President of that Court pursuant to the Common- wealth Conciliation and Arbitration Act. At the conclusion of the evidence, and after delivering a judgment which contained minutes of a proposed award, and after those minutes had been discussed, the Deputy President signed a document which purported to be his award. Apart from that document no formal award of the Court was ever drawn up.

The Daily News Proprietary Ltd. (the proprietor of the Daily News, Perth, Western Australia), one of the respondents to the plaint, obtained two orders nisi for prohibition directed to the Commonwealth Court of Conciliation and Arbitration and the President thereof, and Mr. Justice Isaacs as Deputy President thereof, and the claimant, in respect of part of the award-the first on the ground that the award was not made in respect of an indus- trial dispute within the meaning of the Commonwealth Conciliation and Arbitration Act 1904-1915 and of sec. 51 (xxxv.) of the Con- stitution; and the other on the grounds (1) that there was no award of the Commonwealth Court of Conciliation and Arbitration in existence within the meaning of that Act, and (2) that the Deputy President had no power to make a compulsory award of the Com- monwealth Court of Conciliation and Arbitration within the meaning of that Act.

The orders nisi were first argued on 3rd, 4th and 5th September 1918 before Griffith C.J. and Barton, Isaacs, Gavan Duffy, Powers and Rich JJ. The Court reserved judgment, and subsequently intimated that they desired to hear further argument on the question whether prohibition would lie. The further argument was heard before Barton, Isaacs, Gavan Duffy, Powers and Rich JJ. on 19th and 20th May 1919. As no reasons for judgment were given, the arguments are not reported.

26 CLR 406

Sir Edward Mitchell K.C. (with him Macindoe), for the prosecutor. Owen Dixon (with him R. G. Menzies), for the respondent organiza- tion.

Starke and Mann, for the Commonwealth, intervening.

PER CURIAM. These orders nisi will be discharged. There will be no order as to costs. The Court does not think fit to make any further observations.

Orders nisi discharged. Solicitors for the prosecutor, Lynch &MacDonald. Solicitors for the respondent organization, Brennan &Rundle. Solicitor for the Commonwealth, Gordon H. Castle, Crown Solicitor for the Commonwealth.