R v Kelly; Ex parte Berman [1953] HCA 82

R v Kelly; Ex parte Berman [1953] HCA 82

Even if the person convicted was a 'stranger,' the Conciliation and Arbitration Court had jurisdiction to make the order. The giving and enforcement of the direction fell within statutory power under s.96m(6)-(7) of the Conciliation and Arbitration Act 1904-1952, and questions as to the validity or propriety of the direction are not jurisdictional; prohibition is not available.

Parties
Prosecutor: The Queen; Respondents/prosecutor: Kelly and Others (Respondents); Ex parte Berman (Prosecutor); Advocate for Respondents: P. D. Phillips Q.C. (with O. J. Gillard Q.C. and M. McInerney)
Jurisdiction
Australia
Judgment Date
01 December 1953
Procedural Posture
Order Nisi for Prohibition / Judgment on Application for Writ of Prohibition
Outcome
Application for an order nisi for prohibition dismissed (order nisi discharged).
Legal Topics
Industrial Arbitration, Elections in Industrial Organisations, Jurisdiction for Offences Under Industrial Law, Prohibition Against Further Proceedings
Industrial Law Constitutional Law Industrial Arbitration Elections in Industrial Organisations Jurisdiction for Offences Under Industrial Law Prohibition Against Further Proceedings

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Parties

The Queen

Prosecutor

Kelly and Others (Respondents); Ex parte Berman (Prosecutor)

Respondents/prosecutor

P. D. Phillips Q.C. (with O. J. Gillard Q.C. and M. McInerney)

Advocate for Respondents

Procedural Posture

Order Nisi for Prohibition / Judgment on Application for Writ of Prohibition

Legal Issues

  1. 1 Whether the Commonwealth Court of Conciliation and Arbitration had jurisdiction to convict a non-member of the union (a 'stranger') for failing to comply with an electoral officer's direction under s.96m(6) of the Conciliation and Arbitration Act 1904-1952;
  2. 2 Whether the direction given was valid under the statutory provision;
  3. 3 Whether an offence was properly disclosed and proved;

Ratio Decidendi

Even if the person convicted was a 'stranger,' the Conciliation and Arbitration Court had jurisdiction to make the order. The giving and enforcement of the direction fell within statutory power under s.96m(6)-(7) of the Conciliation and Arbitration Act 1904-1952, and questions as to the validity or propriety of the direction are not jurisdictional; prohibition is not available.

Court Disposition

Application for an order nisi for prohibition dismissed (order nisi discharged).

Orders

  • Order nisi for a writ of prohibition discharged with costs.