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[1992] HCA 8
High Court of Australia
1991-02-27
Mason CJ, Moore DP
Original judgment source is linked above.
The application to this Court is brought on the ground that the Commission lacks jurisdiction to deal with the alleged dispute. Three principal reasons are assigned in support of that claim. They are: (1) there is no dispute between employers and employees extending beyond the limits of New South Wales; (2) there is no dispute between employer and employee but rather a dispute between an employer and two former employees; (3) that there is a dispute which is not industrial and that it does not pertain to a relationship between employers and employees. A stay of proceedings in the Commission is also sought on the ground that substantial expense and inconvenience and potential prejudice will be suffered by the prosecutor in the event that Grimshaw C proceeds to a hearing of the purported dispute.
I have some difficulty in understanding the reasons given by Grimshaw C for holding that the Commission has jurisdiction to deal with the matter and on the material before me I am disposed to agree with Moore DP's statement that Multiplex has an arguable case that Grimshaw C was wrong on this point.
However, having said that, I am very firmly of the opinion that no case has been made out to warrant the intervention of this Court at this stage of the proceedings. Prohibition does not issue as of course and, in the ordinary run of industrial cases, a single Justice of this Court should not grant an order nisi for prohibition unless and until the prosecutor exhausts its remedies in the Commission, in particular by way of appeal to the Full Bench and, where appropriate, by seeking that a question of law be referred to the Federal Court. There is nothing in this case which calls for any departure from that practice. It was suggested that, if an order for reinstatement is made before the Full Bench gives its decision on jurisdiction, various difficulties might arise, including the possibility that Multiplex might be prosecuted for breach of award. At the present time, these difficulties are hypothetical. Furthermore, as it seems to me, in this case the application has been brought in order to overcome Moore DP's refusal to grant a stay pending a decision of the Full Bench. That is the catalyst which has caused the application now brought before me.
I certainly do not propose to grant an order nisi with a view to reconsidering the balance of convenience as it was considered by Moore DP. In any event, I take the view that the matter should proceed in the Commission until the avenue of appeal there is exhausted.
In my view, at this stage, the application is without any merit and it should be refused.
The circumstances are such that it may be advisable for Grimshaw C to stay his hand before making an order which is finally operative until the substantial question as to the propriety of exercise of jurisdiction by the Commission in this matter is determined by the Full Bench. The making of an operative order for reinstatement might create difficulties if it should transpire subsequently that it is made without jurisdiction. However, in making this comment, I have not had the advantage of hearing what the union has to say. It is therefore a matter for the Commission to consider for itself.
In the result, the application for an order nisi for prohibition is refused.
High Court of Australia Mason CJ Re Construction, Forestry and Mining Employees Union; Ex parte Multiplex Constructions Pty Ltd [1992] HCA 8