Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151

Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151

As there was a real and substantial question as to the constitutional validity of s 51AA of the Trade Practices Act 1974 (Cth), the proceedings involved a matter arising under the Constitution, requiring compliance with s 78B of the Judiciary Act 1903. The court is under a duty not to proceed further until such notices are given, regardless of whether parties raise the constitutional issue.

Jurisdiction
Australia
Judgment Date
18 October 1999
Procedural Posture
Application for Relief for Contravention of Trade Practices Act / Interlocutory Stage Adjournment for Constitutional Notice Under S 78 B
Outcome
Proceedings adjourned to permit issuance of s 78B notices
Legal Topics
['section 51 AA Trade Practices Act – Unconscionable Conduct' 'section 78 B Judiciary Act – Constitutional Notices' 'constitutional Validity of Federal Statutes' 'procedural Requirements for Constitutional Matters in Federal Courts']
['constitutional Law' 'trade Practices'] ['section 51 AA Trade Practices Act – Unconscionable Conduct' 'section 78 B Judiciary Act – Constitutional Notices' 'constitutional Validity of Federal Statutes' 'procedural Requirements for Constitutional Matters in Federal Courts']

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Procedural Posture

Application for Relief for Contravention of Trade Practices Act / Interlocutory Stage Adjournment for Constitutional Notice Under S 78 B

Legal Issues

  1. 1 ['Does the proceeding involve a matter arising under the Constitution or involving its interpretation?' 'Is s 51AA of the Trade Practices Act 1974 (Cth) constitutionally valid in light of similarities to s 12 of the Native Title Act 1993 (Cth) which was found invalid?' "What is the court's duty under s 78B of the Judiciary Act when a constitutional issue is identified by the court not the parties?" 'Can the proceeding continue before issuance of s 78B notices to Attorneys-General?']

Ratio Decidendi

As there was a real and substantial question as to the constitutional validity of s 51AA of the Trade Practices Act 1974 (Cth), the proceedings involved a matter arising under the Constitution, requiring compliance with s 78B of the Judiciary Act 1903. The court is under a duty not to proceed further until such notices are given, regardless of whether parties raise the constitutional issue.

Court Disposition

Proceedings adjourned to permit issuance of s 78B notices

Orders

  • ['The application is adjourned for mention to 5 November 1999 at 9.15am.' 'The Applicant is to issue notices under section 78B of the Judiciary Act 1903 specifying the nature of the matter arising under the Constitution.' 'The Court reserves dates 22 and 23 November 1999 and 31 January 2000–4 February 2000 for...