Commonwealth v Bank of NSW [1949] UKPCHCA 1

Commonwealth v Bank of NSW [1949] UKPCHCA 1

Where the relief required by an appeal to the Privy Council cannot be given without the determination of an inter se question as to the limits of constitutional powers of the Commonwealth and States, no appeal may lie without a certificate of the High Court under s.74 of the Constitution. Section 46 of the Banking Act 1947 authorizes the total prohibition of private banking, including inter-State banking, and thereby contravenes section 92's guarantee of absolute freedom of trade, commerce, and intercourse among the States. The appeal, brought without such certificate, is incompetent.

Parties
Appellants/defendants: The Commonwealth and Others; Respondents/plaintiffs: Bank of New South Wales and Others; Respondents/plaintiffs: Bank of Australasia and Others; Respondents/plaintiffs: State of Victoria and Another; Respondents/plaintiffs: State of South Australia and Another; Respondents/plaintiffs: State of Western Australia and Another; Intervener (supporting Appellants): State of New South Wales (Intervener); Intervener (supporting Appellants): State of Queensland (Intervener)
Jurisdiction
Australia
Judgment Date
26 October 1949
Procedural Posture
Appeal / Appeal From High Court of Australia to Privy Council (special Leave)
Outcome
Appeal dismissed (appeal incompetent without High Court certificate)
Legal Topics
Section 92 of the Constitution, Banking Regulation, Severability of Statutes, Right of Appeal (section 74), State and Commonwealth Legislative Powers, Financial Agreement and State Banking, Trade, Commerce and Intercourse Among States
Constitutional Law Administrative Law Section 92 of the Constitution Banking Regulation Severability of Statutes Right of Appeal (section 74) State and Commonwealth Legislative Powers Financial Agreement and State Banking +1 more

Case Brief

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Parties

The Commonwealth and Others

Appellants/defendants

Bank of New South Wales and Others

Respondents/plaintiffs

Bank of Australasia and Others

Respondents/plaintiffs

State of Victoria and Another

Respondents/plaintiffs

State of South Australia and Another

Respondents/plaintiffs

State of Western Australia and Another

Respondents/plaintiffs

State of New South Wales (Intervener)

Intervener (supporting Appellants)

State of Queensland (Intervener)

Intervener (supporting Appellants)

Procedural Posture

Appeal / Appeal From High Court of Australia to Privy Council (special Leave)

Legal Issues

  1. 1 Whether section 46 of the Banking Act 1947 is invalid for contravening section 92 of the Australian Constitution
  2. 2 Whether an appeal to the Privy Council on questions as to limits inter se of constitutional powers requires a certificate from the High Court under s.74
  3. 3 Whether s. 46 is valid under s. 51 (xiii) as a law with respect to banking

Ratio Decidendi

Where the relief required by an appeal to the Privy Council cannot be given without the determination of an inter se question as to the limits of constitutional powers of the Commonwealth and States, no appeal may lie without a certificate of the High Court under s.74 of the Constitution. Section 46 of the Banking Act 1947 authorizes the total prohibition of private banking, including inter-State banking, and thereby contravenes section 92's guarantee of absolute freedom of trade, commerce, and intercourse among the States. The appeal, brought without such certificate, is incompetent.

Court Disposition

Appeal dismissed (appeal incompetent without High Court certificate)

Orders

  • Appeals to the Privy Council dismissed
  • Costs as agreed or taxed