Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] This appeal is directed against the order of the High Court quashing the award of the Industrial Court in judicial review proceedings. The background against which this appeal rests is as follows.

[3] The respondent is a trade union. At all material times it had a collective agreement with the appellant. A dispute arose about one of the terms of that agreement. The union took the view that the appellant employer had violated one of its terms. So it approached the Industrial Court under s. 56 of the Industrial Relations Act 1967 ('the Act'). In its pleaded case the appellant's employer put in issue the jurisdiction of the Industrial Court to deal with the complaint. And this is how it did it.

Paragraph 7 of the Statement in Reply mentioned that the Company refers to Paragraph 7 of the Statement of Case and states that it had no previous knowledge of this letter. The Company however states that as the said letter to the Director-General of Industrial Relations contains various disputes as to facts, this matter cannot therefore be properly construed as a complaint of non-compliance. While Paragraph 9 of the Statement in Reply mentioned that the Company refers to Paragraph 9 of the Statement of Case and denies the contention contained therein and puts the Union to strict proof thereof. The Company avers and will so submit that the Union's complaint is not capable of being considered by this Honorable Court under Section 56(1) of the Industrial Relations Act 1967 and therefore ought to be dismissed.

[4] The Industrial Court in a brief award did not deal with the jurisdictional point at all. It instead proceeded to dispose of the complaint on its merits. It is plain that had the Industrial Court discussed the jurisdictional issue and decided it against the union that would have put the union to its choice of having the dispute resolved in accordance with one of the other mechanisms provided for in the Act. Because of the way in which the Industrial Court dealt with the matter this option was lost to the union.

[5] Returning to the facts, the union being dissatisfied with the award moved the High Court to have it quashed in judicial review proceedings. The High Court acceded to that application and the appellant's employer now moves this court in this appeal to have the order of the High Court set aside.

[6] The principal argument raised in support of the appeal is this. It is the union which in the first place made the complaint to the Industrial Court under s. 56 of the Act. The decision having gone against it, the act of the union in moving for judicial review constitutes an abuse of the Court's process. In any event the union approached the High Court with unclean hands. Given the circumstances of the case, and the remedy sought being discretionary in nature, the High Court should have dismissed the motion for review.

[7] In our view there is a short answer to the appellants' argument. It is to be found in the appellant's statement in reply delivered before the Industrial Court and already quoted earlier in the judgment. Having taken the jurisdiction point, the appellant no doubt was inviting the Industrial Court to make a ruling on that issue. Indeed we would go so far to say that both the employer and the union had a legitimate expectation that the Industrial Court would decide whether it had or did not have jurisdiction to deal with that complaint under s. 56 of the Act. Once the Industrial Court failed to deal with that issue it in effect erred in law. It failed to ask itself the right question. That error, on the state of authorities that constitute the jurisprudence on this subject, is a ground upon which judicial review may be granted. See Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor [1996] 4 CLJ 687.

[8] We of course accept that the remedy of judicial review is discretionary in nature and that misconduct of an applicant is a relevant considera