Case: R v Joske; ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48 ; (1976) 135 CLR 194
Outcome: referred to
R v Joske; ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48 ; (1976) 135 CLR 194 , at 212-213, Mason and Murphy JJ discussed s 141 of the Act 1904, which is a forerunner of s 164, stating: The judgments of this Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; [(1945) 70 CLR 141] make it perfectly clear that sub-s (1) of s 141 is not confined to the making of orders directing the performance or observance of a particular rule or particular rules of the organization, as the prosecutors would have it, and that it extends, as its words explicitly state, to the giving of directions for the performance or observance of any of the rules of an organization, that is, for the doing of acts which will conduce to the performance or observance of such rules. ... The power to make interim orders ... is likewise not limited to the giving of directions to perform or observe rules. The terms of the grant to the Court of authority 'to make such orders as it thinks fit in relation to the matters to which the proceedings relate' indicate that the Court has a wide discretion as to the form of order to be made. The exercise of this discretion cannot be restricted to the making of orders for the performance or observance of the rules, or for that matter to directions as to matters which will conduce to performance or observance of the rules. The history ... suggests that in its present form it is designed to enable the Court to make any interlocutory order which will safeguard the position and interests of parties pending a final determination, provided that it bears a relationship 'to the matters to which the proceedings relate'. ... The only relevant limitation on the Court's power to pronounce an interim order is to be found in the concluding words of the sub-section. Yet they are not susceptible of the construction which the prosecutors seek to place upon them. It is impossible to read 'the matters to which the proceedings relate' as signifying no more than the relief claimed by the applicant in the proceedings, or, for that matter, than the issues which are raised for decision in the proceedings. The words, we think, signify the controversy between the parties to which the proceedings relate, whether or not it be crystallized as an issue in these proceedings or in the form of the relief sought. For reasons appearing below, before turning from the Schedule, it is useful to note s 159, which relevantly provides that: (1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged in the Industrial Registry and a Registrar has certified that, in his or her opinion, the alteration: (a) complies with, and is not contrary to, this Schedule, the Workplace Relations Act , awards and collective agreements; and (b) is not otherwise contrary to law; and (c) has been made under the rules of the organisation. ... (3) An alteration of rules that has been certified under subsection (1) takes effect on the day of certification. ...