Boulton, Re; Construction, Forestry, Mining and Engineering Union, Ex p [sic]

Boulton, Re; Construction, Forestry, Mining and Engineering Union, Ex p [sic]

An order nisi should issue and the matter should remain in the High Court because the prosecutors raised arguable constitutional questions going to the Commission's jurisdiction, the Commission proceedings had been exhausted so it was not practicable or appropriate to return the issue to the Commission, the facts were not disputed, related original proceedings for declarations were pending in the High Court, and the parties and the Attorney-General supported determination by the High Court rather than remittal to the Federal Court.

Jurisdiction
Australia
Procedural Posture
Application for an Order Nisi for Constitutional and Other Writs / Before Kirby J; Order Nisi and Procedural Directions
Outcome
Order nisi granted; remittal to the Federal Court declined; procedural directions made; costs of the application to be costs in the cause.
Legal Topics
['award Simplification' 'constitutional Writs' 'jurisdictional Error' 'validity of Commonwealth Legislation' 'acquisition of Property on Just Terms' 'remittal to the Federal Court']
['constitutional Law' 'industrial Relations' 'administrative Law'] ['award Simplification' 'constitutional Writs' 'jurisdictional Error' 'validity of Commonwealth Legislation' 'acquisition of Property on Just Terms' 'remittal to the Federal Court']

Case Brief

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Procedural Posture

Application for an Order Nisi for Constitutional and Other Writs / Before Kirby J; Order Nisi and Procedural Directions

Legal Issues

  1. 1 ['Whether an order nisi should be granted to permit challenges to the constitutional validity of item 50 in Sch 5 Pt 2 of the Workplace Relations and Other Legislation Amendment Act 1996 Cth.' "Whether the constitutional challenge to the Commission's jurisdiction should first have been raised before the Australian Industrial Relations Commission." 'Whether the proceeding should be remitted to a Full Court of the Federal Court of Australia under s 44(2) of the Judiciary Act 1903 Cth.' 'What procedural directions should be made for the return of the order nisi and related summons.']

Ratio Decidendi

An order nisi should issue and the matter should remain in the High Court because the prosecutors raised arguable constitutional questions going to the Commission's jurisdiction, the Commission proceedings had been exhausted so it was not practicable or appropriate to return the issue to the Commission, the facts were not disputed, related original proceedings for declarations were pending in the High Court, and the parties and the Attorney-General supported determination by the High Court rather than remittal to the Federal Court.

Court Disposition

Order nisi granted; remittal to the Federal Court declined; procedural directions made; costs of the application to be costs in the cause.

Orders

  • ['Grant an order nisi to the prosecutors on the ground stated herein in terms of the amended order nisi which was submitted by them and which is initialled by me.' 'Grant leave to the prosecutors to make application in chambers, if agreed by affidavit and consent order, for the addition, as first respondents, of the...