R v Portus; Ex parte McNeil [1961] HCA 50

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. R v Portus; Ex parte McNeil [1961] HCA 50

ORDER Order nisi discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 15 Dixon C.J., Kitto, Taylor and Windeyer JJ.

This is an order nisi for a writ of prohibition directed to Mr. Commissioner Portus. The order nisi calls upon Qantas Empire Airways Ltd. to show cause why the writ should not issue. The prosecutor is one Leonard McNeil who is an airline pilot in the employ of that company and who is a member of the Australian Federation of Air Pilots, a voluntary association which is not registered as an organization under the Conciliation and Arbitration Act 1904-1960 Cth. The tenor of the writ of prohibition sought by the order nisi is to prohibit the Commissioner (and of course the company) from further proceeding or dealing with an alleged industrial dispute between Qantas Empire Airways Ltd. and the air pilots in its employ, a dispute numbered in the Conciliation and Arbitration Commission C. No. 280 of 1961. On 20th June 1961 the learned Commissioner found that an industrial dispute existed between Qantas Empire Airways Ltd. and its pilots who since 15th June 1960 had been in the employ of that company and were on 20th June 1961 still in the employ of that company and who during that whole period had been and were still members of the Australian Federation of Air Pilots, and that the subject matter of the dispute was the matters referred to in certain specified exhibits. By a notice dated 21st June 1961 and expressed to be directed to air pilots, so described, they were notified that the industrial dispute, which was more particularly described in the notice but still by reference to the exhibits, would be heard in Melbourne on 28th June 1961. The Commissioner made an order dispensing with personal service of the notice; the order declared that service of copies upon three officers of the Federation was sufficient service. On 26th June 1961 the prosecutor applied to Fullagar J. for this order nisi for prohibition which his Honour granted on the following day.