R v Kelly; Ex parte Berman [1953] HCA 82

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. R v Kelly; Ex parte Berman [1953] HCA 82

ORDER Order nisi for a writ of prohibition discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 1 Dixon C.J.

This is an order nisi for a writ of prohibition directed to certain judges of the Commonwealth Court of Conciliation and Arbitration prohibiting further proceedings upon a conviction under s. 119 of the Conciliation and Arbitration Act 1904-1952. There is nothing before us to show whether an information as contemplated by sub-s. (2) of s. 119 was ever laid and if so whether it was in writing. But the order of the court was drawn up and it refers to a summons and recites that it had been proved to the satisfaction of the court that the defendant had been guilty of the offence charged in the summons. It proceeds to order that pursuant to s. 96M (7) of the Act the defendant be fined £50. An order for costs follows in favour of the party described as the informant. The defendant is the prosecutor before this Court seeking prohibition.

The summons which the order recites calls upon the defendant to appear before the Court of Conciliation and Arbitration to answer a charge of the informant that the defendant did fail to comply with a direction given by the informant pursuant to s. 96M (6) of the Act. The summons then proceeds to state the direction with particularity.

Sub-section (1) of s. 119 is the provision under which the court assumed jurisdiction to make the order. It is in the following terms:—"A person who has committed an offence against this Act may be charged accordingly before the court and the court may impose the penalty provided by this Act in respect of that offence".

No doubt the meaning of sub-s. (1) is that a charge preferred against a person for an offence against the Act may be heard by the Court of Conciliation and Arbitration which upon being satisfied of the charge may impose the penalty provided for the offence. It does not mean to make the actual guilt of the defendant a condition of the court's power to hear the charge as might be the result of a literal adherence to its actual language. As the statutory authority which the court exercised lies in s. 119 it may fairly be said that the application for the prerogative writ of prohibition is governed by the meaning affixed to that provision. The validity of the section is not impugned.