R v Galvin; Ex parte Australian Textile Workers' Union [1955] HCA 7

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. R v Galvin; Ex parte Australian Textile Workers' Union [1955] HCA 7

ORDER Order nisi discharged with costs.

The following judgment of the Court was delivered by Dixon C.J.

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

This is an order nisi for a writ of prohibition directed to a conciliation commissioner. The proceeding which it is sought to prohibit is an application to him by the respondent for the variation of an award. The respondent is a stranger to the award which it is sought to vary and is a stranger to the dispute in settlement of which that award was made.

The power to vary an award is conferred by s. 49 of the Conciliation and Arbitration Act 1904-1952 in general terms. Section 34 of the Act provides that subject to the Act the court or a conciliation commissioner may exercise any of its or his powers, duties or functions under the Act of its or his own motion or on the application of any party to an industrial dispute or of any organization or person bound by an order or award.

The ground of the application for prohibition is that the respondent is not a party to an industrial dispute or an organization or person bound by an order or award within the meaning of those words in s. 34. Accordingly it is said that the conciliation commissioner may not entertain the application by the respondent.

On the construction of s. 34 and s. 49 together, it is clear that, however that may be, the conciliation commissioner may vary an award on his own motion.

We are prepared to assume that the respondent may have no locus standi to make the application which it is sought to prohibit. But we think that, because the order which the respondent desires may be made by the conciliation commissioner of his own motion, it cannot be outside his jurisdiction and the fact, if it be a fact, that he entertained an application by an incompetent applicant does not put such an order outside his power, if he think fit to make it. We ought not therefore to award a writ of prohibition against him.