R v Spicer; Ex parte Waterside Workers' Federation of Australia (No 2) [1958] HCA 17

R v Spicer; Ex parte Waterside Workers' Federation of Australia (No 2) [1958] HCA 17

Because the operative effect of the Commonwealth Industrial Court's orders was exhausted (except as to costs) before the prohibition application, and the alleged jurisdictional error, if any, did not survive in continued or substantial legal effect, prohibition will not issue. The prohibitory writ is only justified where some substantial liability imposed by an order or award lacking jurisdiction remains; residual matters as to costs are not sufficient, and here overlap with other orders. The order based on clause 26(m), which prevented men offering labour on conditions prescribed in the award as amended, remained within jurisdiction and was effective, while the order based on clause...

Parties
Applicant: The Queen; Respondents: Spicer and Others (Judges of the Commonwealth Industrial Court); Prosecutor/applicant in Ex Parte Application: Waterside Workers' Federation of Australia; Respondent (intervener): Commonwealth Steamship Owners' Association
Jurisdiction
Australia
Procedural Posture
Application for Writ of Prohibition (ex Parte) / Final Judgment of the High Court
Outcome
Order nisi for writ of prohibition discharged with costs.
Legal Topics
Conciliation and Arbitration, Judicial Power—jurisdiction, Industrial Awards and Orders—interpretation, Enforcement of Awards—injunctions, Prohibition—high Court Supervisory Jurisdiction, Stevedoring Industry Regulation
Industrial Law Labour Law Constitutional Law Conciliation and Arbitration Judicial Power—jurisdiction Industrial Awards and Orders—interpretation Enforcement of Awards—injunctions Prohibition—high Court Supervisory Jurisdiction +1 more

Case Brief

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Parties

The Queen

Applicant

Spicer and Others (Judges of the Commonwealth Industrial Court)

Respondents

Waterside Workers' Federation of Australia

Prosecutor/applicant in Ex Parte Application

Commonwealth Steamship Owners' Association

Respondent (intervener)

Procedural Posture

Application for Writ of Prohibition (ex Parte) / Final Judgment of the High Court

Legal Issues

  1. 1 Whether the Commonwealth Industrial Court acted in excess of its jurisdiction in making orders under s. 109(1)(b) of the Conciliation and Arbitration Act 1904-1956 enjoining the Waterside Workers' Federation of Australia from breaches of award provisions relating to labour engagement and concerted failure to attend at prescribed times and places;
  2. 2 Whether an order of prohibition should issue when the orders complained of had lapsed except as to costs;
  3. 3 Construction of 'prescribed' in award provisions as to times and places for engagement under changing statutory industrial practices.

Ratio Decidendi

Because the operative effect of the Commonwealth Industrial Court's orders was exhausted (except as to costs) before the prohibition application, and the alleged jurisdictional error, if any, did not survive in continued or substantial legal effect, prohibition will not issue. The prohibitory writ is only justified where some substantial liability imposed by an order or award lacking jurisdiction remains; residual matters as to costs are not sufficient, and here overlap with other orders. The order based on clause 26(m), which prevented men offering labour on conditions prescribed in the award as amended, remained within jurisdiction and was effective, while the order based on clause...

Court Disposition

Order nisi for writ of prohibition discharged with costs.

Orders

  • Discharge the order nisi for writ of prohibition with costs.