R v Kelly; Ex parte Waterside Workers' Federation of Australia [1952] HCA 25

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar and Kitto JJ. R v Kelly; Ex parte Waterside Workers' Federation of Australia [1952] HCA 25

ORDER Order accordingly.

The judgment of the Court was delivered by Dixon C.J. as follows:—

May 26 Dixon C.J., McTiernan, Williams, Webb, Fullagar and Kitto JJ.

We have reached a conclusion in this case which makes it unnecessary to have it further argued.

I shall give the judgment on behalf of the Court.

This is an order nisi for a writ of prohibition directed to three Judges of the Commonwealth Court of Conciliation and Arbitration and the purpose of the writ sought is to prohibit further proceedings upon two orders which their Honours made on 8th May 1952. One order was made in purported pursuance of s. 29 (b) of the Conciliation and Arbitration Act 1904-1951. The Arbitration Court thereby ordered that the Waterside Workers' Federation of Australia comply with clause 4 (j) (ii) of the Waterside Workers' Award by ceasing directly or indirectly to be a party to or concerned in the ban limitation or restriction imposed on or about 9th April 1952 by the Federation on the working of overtime as prescribed by clause 4 (j).

The other order was made in purported pursuance of s. 29 (c) of the same Act. This order is expressed to enjoin the Federation from continuing its breach or non-observance of clause 4 (j) (ii) of the award, by being directly or indirectly a party to or concerned in the ban limitation or restriction imposed by the Federation on or about 9th April 1952.

The Federation is the prosecutor seeking the writ of prohibition against these two orders. To obtain the writ the prosecutor must show that the orders as made are not within the power of the Arbitration Court.

The ground upon which it is sought to make out this conclusion is that the award containing the clause which the two orders enforce has no longer any existence, at all events as an award enforceable by such orders.