Practitioners seeking prohibition against a tribunal should consider whether the tribunal has power to act on its own motion, as the incompetence of the applicant before the tribunal will not ground prohibition if the tribunal could independently make the same order.
Later decisions that cite R v Galvin; Ex parte Australian Textile Workers' Union
THE QUEEN v. GALVIN; Ex parte AUSTRALIAN TEXTILE WORKERS' UNION [1955] HCA 7; (1955) 92 CLR
173
Industrial Arbitration (Cth.)
High Court of Australia
Dixon C.J.(1), McTiernan(1), Williams(1), Webb(1), Fullagar(1), Kitto(1) and
Taylor(1) JJ.
CATCHWORDS
Industrial Arbitration (Cth.) - Award - Variation - Application by incompetent applicant - Power of conciliation commissioner to make order sought on his own motion - Prohibition - Conciliation and Arbitration Act 1904-1952 (No. 13 of 1904 - No. 34 of 1952), ss. 34, 49.HEARING
Melbourne, 1955, March 7. 7:3:1955DECISION
The following judgment of the Court was delivered by DIXON C.J.2. The power to vary an award is conferred by s. 49 of the Conciliation and Arbitration Act 1904-1952 in general terms. Section 34 of the Act provides that subject to the Act the court or a conciliation commissioner may exercise any of its or his powers, duties or functions under the Act of its own motion or on the application of any party to an industrial dispute or of any organization or person bound by an order or award. (at p175)
3. The ground of the application for prohibition is that the respondent is not a party to an industrial dispute or an organization or person bound by an order or award within the meaning of those words in s. 34. Accordingly it is said that the conciliation commissioner may not entertain the application by the respondent. (at p175)
4. On the construction of s. 34 and s. 49 together, it is clear that, however that may be, the conciliation commissioner may vary an award on his own motion. (at p175)
5. We are prepared to assume that the respondent may have no locus standi to make the application which it is sought to prohibit. But we think that, because the order which the respondent desires may be made by the conciliation commissioner of his own motion, it cannot be outside his jurisdiction and the fact, if it be a fact, that he entertained an application by an incompetent applicant does not put such an order outside his power, if he think fit to make it. We ought not therefore to award a writ of prohibition against him. (at p176)
6. On that short ground we think that the order nisi should be discharged with costs. (at p176)
ORDER
Order nisi discharged with costs.