Edgar Joseph Jr J:

In this application for certiorari, the dominant question of law for decision is whether there was a legal basis for the Industrial Court to have awarded full wages for Sundays and Public Holidays during a period of shutdown (the award concerned) caused by a fall of orders following the loss by the applicant company (the company) of a million dollar contract.

Counsel for the company submitted that there was no such basis while Counsel for the respondent Union (the Union) submitted that there was.

The Industrial Court held that although neither in the relevant collective agreement dated 11 May 1984 (the collective agreement) nor under the Law was there any provision for the payment of shutdown wages, thus giving rise to a lacuna situation, nevertheless, the company should compensate its employees during the periods of shutdown, and found, applying as a guide, an agreement dated 17 December 1982 (the agreement) not part of the collective agreement entered into by the parties, but no longer binding, and the practice of the company during the period 1981 to 1983 of awarding half of the wages for weekdays and full wages for Sundays and Public Holidays falling during periods of shutdown, that fair rate of compensation for periods of shutdown was half of the basic wages for weekdays and full wages for Sundays and Public Holidays and made an award accordingly.

Counsel for the Union conceded - in my view rightly - that standown in the agreement refers to working days on which the company is unable to provide work. It does not include Sundays and Public Holidays. Clause 5 of the agreement provides strong reinforcement for this conclusion since it provides for employees to take paid annual leave on the days of standown.

In the event, the company attempted to impugn, by way of certiorari proceedings, only the award concerned, that is to say, that part of the award of the Industrial Court which required it to pay full wages for Sundays and Public Holidays during the period of shutdown. This was perhaps understandable because, in practical terms, the ruling taken as a whole, of the Industrial Court, really benefitted the company since, instead of having to pay full wages for weekdays falling within the period of shutdown, as required under the contract of service, it directed the company to pay only half of those wages. I am therefore in complete agreement with learned Counsel for the Union when he says that in truth the aggrieved party here is not the company but its employees who will be underpaid.

Like all other administrative law remedies, except habeas corpus, certiorari is discretionary - the Court has a discretion to refuse it even to an applicant who has established the error complained of in the decision.

So, for example, in one case, there was a discretionary refusal of certiorari because no "real injustice" had been suffered (see R. v. Aston University Senate; Ex parte Roffey [1969] 2 QB 538 at 551, 559; See also R. v. O'Sullivan; Ex parte Clarke (lack of real merit ) [1967] WAR 168. The Court can also dismiss an application where the applicant has failed to disclose relevant facts. (see R. v. Castles [1894] 6 QLJ 94; Ex parte Dunn [1906] VLR 584, 596; R. v. Kensington Income Tax Commissioners; Ex parte De Polignac [1917] 1 KB 486 and R. v. Tillett; Ex parte Newton [1969] 14 FLR 101 at 122).

In the present case, the company when applying for leave to commence certiorari proceedings had not disclosed that the relevant contract of service provided for the payment of full wages for weekdays falling within the period of shutdown so that it really benefitted from the award taken as a whole. Consequently, I fail to see what injustice the company had suffered by reason of the same. In the exercise of my discretion, I would, on this ground alone, refuse certiorari and dismiss the application.

Be that as it may, I consider it right that I should pronounce upon the merits of the application before me.

First of all, it was