Whittaker Brothers v Lewis and Reid Limited [1922] HCA 34

Whittaker Brothers v Lewis and Reid Limited [1922] HCA 34

Majority (Knox C.J. and Starke J.): The Local Court erred in making orders in the nature of mandamus under sec. 48 directing payment under the award because equally effective remedies (civil actions, penalty proceedings) were available. The power under sec. 48 is discretionary and should only be exercised in special circumstances, which were not present here. As such, the orders should be discharged and the appeals allowed.

Parties
Appellant: Whittaker Brothers; Appellant: Lewis & Reid Limited; Appellant: Port & Company Limited; Respondent: Australian Timber Workers' Union
Jurisdiction
Australia
Judgment Date
09 August 1922
Procedural Posture
Appeal / On Appeal From a Local Court of Western Australia
Outcome
Appeals allowed. Orders of Local Court discharged.
Legal Topics
Award Enforcement, Mandamus, Injunction, Retrospective Pay, Powers and Discretion Under Statutory Remedies
Industrial Law Employment Law Award Enforcement Mandamus Injunction Retrospective Pay Powers and Discretion Under Statutory Remedies

Case Brief

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Parties

Whittaker Brothers

Appellant

Lewis & Reid Limited

Appellant

Port & Company Limited

Appellant

Australian Timber Workers' Union

Respondent

Procedural Posture

Appeal / On Appeal From a Local Court of Western Australia

Legal Issues

  1. 1 Whether orders in the nature of a mandamus under sec. 48 of the Commonwealth Conciliation and Arbitration Act should be made to enforce award payments by employers to employees by way of retrospective pay;
  2. 2 Whether other remedies are adequate and should preclude use of discretionary remedies such as mandamus or injunction under sec. 48;
  3. 3 Whether the Union has standing/adequate alternative remedies in statutory claims for payment under the award.

Ratio Decidendi

Majority (Knox C.J. and Starke J.): The Local Court erred in making orders in the nature of mandamus under sec. 48 directing payment under the award because equally effective remedies (civil actions, penalty proceedings) were available. The power under sec. 48 is discretionary and should only be exercised in special circumstances, which were not present here. As such, the orders should be discharged and the appeals allowed.

Court Disposition

Appeals allowed. Orders of Local Court discharged.

Orders

  • Orders of Local Court set aside.
  • Respondent to pay the costs of the proceedings in Local Court and of this appeal.