R v Galvin; Ex parte Amalgamated Engineering Union, Australian Section [1952] HCA 29

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Kitto JJ. R v Galvin; Ex parte Amalgamated Engineering Union, Australian Section [1952] HCA 29

ORDER Order nisi for prohibition in respect of the order of variation made on 21st June 1951 discharged with costs. Application for order absolute in the first instance for prohibition in respect of the corresponding provision of the award made on 16th January 1952 refused with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 13 Dixon C.J., Webb, Fullagar and Kitto JJ.

This proceeding began as an order nisi for a writ of prohibition directed to a conciliation commissioner to restrain an order of variation made on 21st June 1951 being put into force.

The order nisi was made on 23rd January 1952 on an application made some time before and stood over for a further affidavit ultimately made on 18th January 1952. In the meantime on 16th January 1952 the conciliation commissioner promulgated a new award, which had been under consideration. That award came into force as on and from the first pay period to commence in February 1952 and thereupon the previous award, varied by the order which it was sought to prohibit, went out of operation. It had been maintained in force by the provisions of s. 48 (2) of the Conciliation and Arbitration Act 1904-1951 only "until a new award has been made", an event which may be considered to have taken place as early as 16th January but certainly no later than the first pay period in February 1952.

Inasmuch as the award containing the provisions placed therein by the order of variation under attack had no longer any prospective operation this Court on the return of the order nisi declined to entertain further the application for a writ of prohibition in respect of the spent order.