The KingThe Commonwealth Court of Conciliation and Arbitration and Others [1950] HCA 8

High Court of Australia Latham C.J. McTiernan, Williams, Webb and Fullagar JJ. The KingThe Commonwealth Court of Conciliation and Arbitration and Others [1950] HCA 8

ORDER Order nisi discharged. Prosecutor to pay the costs of respondents. Costs of Dunphy J. to be as of a submitting respondent.

Cur. adv. vult.

The following written judgments were delivered:—

May 11 Latham C.J.

Return of an order nisi directed to Dunphy J., a judge of the Commonwealth Court of Conciliation and Arbitration, J. C. Welbourn, Deputy Industrial Registrar of the court, and George McNeill and John Patrick O'Shea, members of the Boilermakers' Society of Australia (an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1949), for the issue of a writ of prohibition in relation to orders made by Dunphy J. The prosecutor, Hugh Grant, was elected as secretary of the New South Wales Branch of the Society at an election which on 31st May 1949 was authorized by a meeting of the branch—the ballot to close on 21st June 1949. The respondent J. P. O'Shea was a defeated candidate at the said election. He applied under the provisions of the Commonwealth Conciliation and Arbitration Act 1904-1949 for an inquiry into the election on the ground that there had been irregularities in or in connection with the election. The inquiry was made and the learned judge made an order on 14th December 1949 declaring the election void and directing a new election to be held. The prosecutor alleges that the order made was beyond the jurisdiction of the court, and seeks a writ of prohibition to restrain any further proceeding thereunder.

The Commonwealth Conciliation and Arbitration Act 1904-1949 provides in s. 96A that "Where a member of an organization, or a person who, within the preceding period of twelve months, has been a member of an organization, claims that there has been an irregularity in or in connection with an election for an office in the organization he may lodge an application for an inquiry by the court into the matter." The application is to be lodged with the Industrial Registrar (s. 96A (2) (b)) who, if he is satisfied that there are reasonable grounds for an inquiry into the question whether there has been an irregularity which may have affected or may affect the result of the election, shall grant the application and refer the matter to the court—s. 96B (1). Under s. 96G the court has power to inquire into and determine the questions whether any irregularity has occurred and such further questions concerning the conduct and results of the election as the court thinks necessary. Section 96G (3) provides that if the court finds that an irregularity has occurred the court may, in accordance with the section, make an order declaring the election to be void, an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected, and an order directing a new election to be held.