R v Joske; Ex parte Shop, Distributive & Allied Employees' Association [1976] HCA 48

High Court of Australia Barwick C.J. McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ. R v Joske; Ex parte Shop, Distributive & Allied Employees' Association [1976] HCA 48

ORDER Orders nisi discharged.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 9 Barwick C.J.

In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Stephen. I agree with him in thinking that the interim order made in proceedings No. 161 of 1974 was not made in relation to the matter to which those proceedings related within the meaning and operation of s. 141(2) of the Conciliation and Arbitration Act 1904, as amended ("the Act"). The power given by that section is not confined to the making of orders for the performance of or observance of rules of an organization: nor to orders germane to the relief claimed in the proceedings. The matter actually in dispute between the parties out of which the proceedings have arisen and to which they relate will satisfy the limitation contained in the final words of the sub-section. But even so, as my brother Stephen points out, the status of the applicant for prohibition was not in dispute: and it was to that status which the interim order itself related. For the reasons which my brother Stephen gives, I would make absolute the order nisi granted with respect to the interim order made in proceedings No. 161 of 1974.

I also agree with my brother Stephen's conclusion that the order nisi granted in relation to proceedings No. 295 of 1975 should be discharged. Section 171B of the Act does not afford any reason why an invalid act should not be restrained. That section does not purport to deprive a court of jurisdiction to restrain acts which, if they had been performed, would or might have fallen within the ambit of the operation of the section.