Re Building Workers' Industrial Union of Australia; Ex parte Pillar [1991] HCA 50

High Court of Australia|1991-09-11|Before: McHugh JJ, Brennan J, Dawson J

High Court of Australia Brennan, Gaudron and McHugh JJ. Re Building Workers' Industrial Union of Australia; Ex parte Pillar [1991] HCA 50

ORDER Order nisi for a writ of prohibition and a writ of certiorari discharged. No order as to costs. Brennan J.

On 11 September 1991 Dawson J. granted an order nisi for a writ of prohibition directed to the Hon. Michael Francis Moore, a Deputy President of the Australian Industrial Relations Commission, to prohibit him from taking any further step under Div. 7 of Pt IX of the Industrial Relations Act 1988 Cth ("the Act") in relation to the proposed amalgamation of the Building Workers' Industrial Union of Australia ("the B.W.I.U.") and the Australian Timber and Allied Industries Union ("the A.T.A.I.U."). On 2 September 1991 Mr. Deputy President Moore had dismissed an objection to his fixing of a date under s. 253Q as the day on which the proposed amalgamation was to take effect. His power to fix an amalgamation day was conditioned on there being no proceedings against either organization in relation to contraventions of the Act. In fact there were charges laid in the Magistrates Court at Melbourne against the B.W.I.U. and A.T.A.I.U. On 30 August 1991, a Mr. Rust had charged the B.W.I.U. with a breach of s. 214(1) of the Act and the A.T.A.I.U. with a breach of s. 268(3) of the Act. The Deputy President held that, by force of s. 52(1) of the Act, the Magistrates Court had no jurisdiction to hear and determine these matters. Accordingly, he proceeded to fix 23 September 1991 as the amalgamation day. Section 52(1) reads:

Subject to this Act, the jurisdiction of the Court in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty, is exclusive of the jurisdiction of any other court created by the Parliament or any court of a State or Territory. The prosecutor, seeking an order absolute, submits that the statutory history of s. 52(1) shows that it is confined to what were arbitral functions or what are functions having a close relationship with arbitral functions. Counsel submitted that the ordinary meaning of s. 52(1) and its statutory history combine to show that it was not intended to apply to criminal proceedings. The difficulty with this approach, acknowledged by counsel for the prosecutor, is that it denies any field of operation for the words "the jurisdiction of the Court in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty" in s. 52(1) which defines a jurisdiction exclusive to the Federal Court. If any operation is to be given to those words, that operation is limited to proceedings for a pecuniary penalty for offences under the Act. Jurisdiction in proceedings for other kinds of pecuniary penalties is dealt with expressly by s. 178 which clearly provides for the exercise of concurrent jurisdiction by the Federal Court and other courts of competent jurisdiction and, arguably, by s. 290(2) which relates to recovery of moneys in a court of competent jurisdiction. Section 52(1) is subject to both of these provisions. The words quoted from s. 52(1) in their natural and ordinary meaning are apt to describe proceedings for recovery of penalties in either civil or criminal jurisdiction [1] and the term "penalty" is used in other sections of the Act to describe criminal penalties as well as civil penalties [2] . The considerations advanced by the prosecutor do not detract from the ordinary meaning of the words. 1. See Gapes v Commercial Bank of Australia Ltd. (1979) 38 F.L.R. 431; 27 A.L.R. 87. 2. See ss. 350, 356, 357.

It follows that the Deputy President was correct in holding that the Magistrates Court had no jurisdiction to hear and determine the charges laid in that Court and accordingly that he had power to fix an amalgamation day.

The order nisi for a writ of prohibition (and also for a writ of certiorari) is discharged.

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