R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33

High Court of Australia Latham C.J. Rich, Dixon McTiernan and Webb JJ. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33

ORDER Order absolute. The respondent association to pay the costs of the prosecutor.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 9 Latham C.J., Rich, Dixon McTiernan and Webb JJ.

Return of order nisi for a writ of mandamus directed to the Commonwealth Court of Conciliation and Arbitration and their Honours the Judges of that Court and the Australian Theatrical and Amusement Employees' Association, an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1948, directing the hearing and determination of an application made by the prosecutor Ozone Theatres (Aust.) Limited and other persons in proceedings No. 98 of 1948 in that Court. Section 25 of the Commonwealth Conciliation and Arbitration Act 1904-1948 provides that the court may, for the purpose of preventing or settling an industrial dispute, make an order or award altering, inter alia,—"(b) the basic wage or the principles upon which it is computed." Section 13 of the Act provides that a conciliation commissioner shall not be empowered to make an order or award altering, inter alia, "(b) the basic wage or the principles upon which it is computed." Thus the court has jurisdiction to make an order or award altering the basic wage or the principles upon which it is computed and a conciliation commissioner has no such jurisdiction. The court has held that the application is not an application for such an alteration and that it has no jurisdiction to entertain it.

The application of the prosecutor and other persons was an application that in settlement of dispute No. 98 of 1948 the court should make an "order or award altering the basic wage applying to the States of South Australia and Western Australia in the industry concerned in the dispute and/or the principles upon which such basic wage is computed." The description by the applicant of the application in these terms does not determine the question whether the application is truly so described. Particulars of the alteration which was sought were stated in the summons in the following words:—