R v Association of Professional Engineers, Australia; Ex parte Victoria [1957] HCA 95

High Court of Australia Dixon C.J. McTiernan. Williams, Webb and Taylor JJ. R v Association of Professional Engineers, Australia; Ex parte Victoria [1957] HCA 95

ORDER Discharge the order nisi with costs to be paid by the prosecutors.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 19 Dixon C.J., McTiernan, Williams, Webb and Taylor JJ.

This is an order nisi for a writ of prohibition directed to Mr. Portus, a member of the Commonwealth Conciliation and Arbitration Commission, for the purpose of restraining him from proceeding with the hearing and determination of an industrial dispute. The dispute is alleged to exist between on the one hand the State of Victoria and the State of Queensland and certain agencies of those States, besides many other employers, and on the other hand, The Association of Professional Engineers, Australia. The alleged dispute is the outcome of the service on employers, including the States and the agencies already mentioned, of a log of claims on behalf of the association, accompanied by a letter from the secretary of the association. We may neglect for present purposes the large number of other employers upon whom the log was served. They no doubt are parties to the alleged dispute if there be one, but it is only with the two States and their respective agencies that we are now concerned. The States mentioned objected before Mr. Portus to his proceeding with the hearing of the dispute on the ground that the log and the accompanying letter did not amount to a demand capable of giving rise to an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904-1956 and the Constitution. In response to the service of the log and the accompanying letter, the two States and their agencies appear simply to have made no reply. There is no question upon this order nisi about the industrial character of the dispute. Counsel for the two States who are prosecutors said that upon this proceeding it was not intended to argue that any part of the alleged dispute was not capable of possessing an industrial character because some of the employment was governmental and administrative: cf. the case of the Federated State School Teachers' Association of Australia v. State of Victoria [1] . Nor is there any dispute that the alleged dispute, if it exists, extends beyond the limits of any one State. The case made in support of the order nisi is that the log of claims and the accompanying letter are expressed in a manner so vague and indefinite that it is impossible to construe a failure to respond thereto as equivalent to an intention to dispute an industrial demand. In one of the two grounds of the order nisi, it is stated that the letter and log of claims are so ambiguous and indefinite, uncertain and contradictory, that a failure or refusal to agree to the claims therein does not give rise to such an industrial dispute. The other ground need not be set out but its effect is rather to particularise the same contention. Thus it puts the view that instead of demanding rates of remuneration the claim in the log really amounts to no more than a request that the employers should agree individually with employees upon the remuneration to be paid to each of them respectively.