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Friday, 27 August 1920


Mr MAXWELL (Fawkner) .- I move -

That the words " abnormal " and " fundamental " be struck out.

I should be sorry to make a suggestion the tendency of which would be to affect the stability of an award of the Arbitration Court; but the object of the provision is to secure that, in the event of circumstances arising subsequent to the making of an award which affected its justice, opportunity should be given to have the award brought into consonance with justice. To me, the limitations on the Court imposed by the provision as it would be worded were my amendment carried would be quite sufficient. The provision, amended as proposed, would mean that those who came to the Court asking for the variation of an award, or the setting of it aside, on the ground that it was unjust, would have to prove to the satisfaction of the Court that circumstances had arisen since it was made affecting the justice of some term or terms.


Sir Robert Best - No matter how trifling ?


Mr MAXWELL - The Court would not listen to a trifling application.


Sir Robert Best - But such applications would be made.


Mr MAXWELL - We must look at this matter from a practical point pf view. No Court that had taken into consideration all the existing circumstances and had based its award on them would listen to any trivial suggestion for its amendment. Such a suggestion would ask the Court to stultify itself, which any Court would be slow to do. I feel that in the interests of justice we should make the wording of every section as simple and understandable as possible. I can conceive of all kinds of discussion about the meaning of the word " abnormal " if a case came before the Court for decision on the wording of the clause as it stands. . As to the word " fundamental," if I were the Judge of a Court before which an application was made for the variation of an award, and if those making the application satisfied me that circumstances had arisen since the award was made that affected the justice of any term or terms. that is all the warrant I would require for varying it so as to make it just. I see no difference between justice and fundamental justice.


Sir Robert Best - If the amendment were agreed to, the clause would have practically the same effect as df it had been amended in the way proposed by the honorable member for West Sydney (Mr. Ryan).


Mr MAXWELL - I do not think so. When we say to a Judge that it must be proved that since the making of an award circumstances had arisen that affected its justice, the applicant for the variation has a pretty big order to fill. The honorable member for West Sydney proposed to leave it to the absolute discretion of the Judge, even though the circumstances had not changed, to consider an application for a variation; so that a stronger case being made out on the same facts, it would be open to a Judge to vary his award. Under my 'amendment the Judge would say to those making an application for a variation of an award, " You must show that the circumstances have changed since I made the award." That places a limitation on the discretion of a Judge, and, from my point of view, quite a sufficient one.


Mr Richard Foster - There should be a material and substantial change, otherwise you are inviting persons to go to the Court for a better award.


Mr MAXWELL - I do not think so. Applicants would be better advised than to go to the Court with a trivial request. If they made such a request, they would, according to my experience of Courts, be soon sent about their business.







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