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

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

Section 19 of the Public Service Arbitration Act 1920-1952 disqualifies counsel or solicitor only when acting in a professional capacity, not when acting as an officer exclusively employed by an organization. The Chief Judge was bound to hear the association by its general secretary, and refusal based on the mistaken interpretation of s. 19 was in error; thus, mandamus would lie.

Parties
Prosecutor: The Queen; Respondent: Kelly; Prosecutor: The Commonwealth Public Service Clerical Association; Respondent: Chief Judge of the Court of Conciliation and Arbitration
Jurisdiction
Australia
Judgment Date
15 April 1955
Procedural Posture
Judicial Review (mandamus) / Order Nisi for Writ of Mandamus
Outcome
Mandamus would lie, but the Court made no absolute order, trusting the Chief Judge would follow the judgment.
Legal Topics
Public Service Representation, Right of Audience, Industrial Associations, Statutory Interpretation, Mandamus
Industrial Law Administrative Law Public Service Representation Right of Audience Industrial Associations Statutory Interpretation Mandamus

Case Brief

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Parties

The Queen

Prosecutor

Kelly

Respondent

The Commonwealth Public Service Clerical Association

Prosecutor

Chief Judge of the Court of Conciliation and Arbitration

Respondent

Procedural Posture

Judicial Review (mandamus) / Order Nisi for Writ of Mandamus

Legal Issues

  1. 1 Whether s. 19 of the Public Service Arbitration Act 1920-1952 disqualifies a non-practising barrister, employed as general secretary of an industrial organization, from appearing on its behalf in proceedings under the Act.
  2. 2 Whether mandamus lies to correct the Chief Judge's refusal to hear the association by its general secretary based on a mistaken interpretation of s. 19.

Ratio Decidendi

Section 19 of the Public Service Arbitration Act 1920-1952 disqualifies counsel or solicitor only when acting in a professional capacity, not when acting as an officer exclusively employed by an organization. The Chief Judge was bound to hear the association by its general secretary, and refusal based on the mistaken interpretation of s. 19 was in error; thus, mandamus would lie.

Court Disposition

Mandamus would lie, but the Court made no absolute order, trusting the Chief Judge would follow the judgment.