R v Kelly; Ex parte Commonwealth Public Service Clerical Association [1955] HCA 20

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. R v Kelly; Ex parte Commonwealth Public Service Clerical Association [1955] HCA 20

Cur. adv. vult.

The Court delivered the following written judgment:—

April 15 Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ.

Pursuant to s. 15C of the Public Service Arbitration Act 1920-1952 the Public Service Board made an application to the Chief Judge of the Court of Conciliation and Arbitration for leave to appeal against a determination made by the Public Service Arbitrator. The application was made upon notice to the Commonwealth Public Service Clerical Association. That body is registered under the Conciliation and Arbitration Act 1904-1952 in pursuance of s. 5 of the Public Service Arbitration Act 1920-1952. The association sought to appear upon the hearing of the application by its general secretary, an officer exclusively employed by the association. The general secretary, Mr. G. W. F. Smith, was called to the Bar of New South Wales in 1937 but has never practised. He entered the Public Service of New South Wales where he was employed until in 1947 he became general secretary of the association. Section 19 of the Public Service Arbitration Act 1920-1952 is in these terms, viz.—"No person or organization shall in any proceeding under this Act be represented by counsel or solicitor". An application under s. 15C to the Chief Judge is a "proceeding under" the Public Service Arbitration Act 1920-1952. The Chief Judge refused to permit the association to appear before him by Mr. Smith as its general secretary on the ground that, since he is a member of the Bar of New South Wales, to do so would be inconsistent with s. 19. The association and Mr. Smith as prosecutors obtained an order nisi for a mandamus directed to the Chief Judge commanding him to hear the association by its general secretary, Smith.