Nelungaloo Pty Ltd v The Commonwealth [No 4] [1953] HCA 87

Nelungaloo Pty Ltd v The Commonwealth [No 4] [1953] HCA 87

On the pleadings, since the plaintiff's claim under reg. 14 for compensation cannot succeed without recourse to s. 51(xxxi) of the Constitution, and as the defendant pleads reg. 19 as the exclusive basis for compensation, a question as to the limits inter se of the constitutional powers of the Commonwealth and the States has arisen for the purposes of s. 40A(1) of the Judiciary Act; accordingly, the cause is removed into the High Court.

Jurisdiction
Australia
Procedural Posture
Application for Removal (constitutional) / Application for Removal to High Court Under S 40 a Judiciary Act 1903 1950
Outcome
Declaration that a question as to the limits inter se of the constitutional powers of the Commonwealth and the States has arisen and that the cause is removed into the High Court.
Legal Topics
['removal of Cause' 'constitutional Powers—commonwealth and States' 'acquisition of Property—just Terms' 'national Security (wheat Acquisition) Regulations']
['constitutional Law'] ['removal of Cause' 'constitutional Powers—commonwealth and States' 'acquisition of Property—just Terms' 'national Security (wheat Acquisition) Regulations']

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Procedural Posture

Application for Removal (constitutional) / Application for Removal to High Court Under S 40 a Judiciary Act 1903 1950

Legal Issues

  1. 1 ['Whether a question as to the limits inter se of the constitutional powers of the Commonwealth and the States has arisen within the meaning of s. 40A(1) Judiciary Act 1903-1950' 'Whether the claim based on reg. 14 of the National Security (Wheat Acquisition) Regulations necessarily involves interpretation of s 51(xxxi) of the Constitution' 'Whether removal to the High Court is premature if the pleadings do not yet disclose the necessity of a constitutional determination']

Ratio Decidendi

On the pleadings, since the plaintiff's claim under reg. 14 for compensation cannot succeed without recourse to s. 51(xxxi) of the Constitution, and as the defendant pleads reg. 19 as the exclusive basis for compensation, a question as to the limits inter se of the constitutional powers of the Commonwealth and the States has arisen for the purposes of s. 40A(1) of the Judiciary Act; accordingly, the cause is removed into the High Court.

Court Disposition

Declaration that a question as to the limits inter se of the constitutional powers of the Commonwealth and the States has arisen and that the cause is removed into the High Court.

Orders

  • ['Declare that within the meaning of s. 40A(1) of the Judiciary Act 1903-1950 there has arisen a question or questions as to the limits inter se of the constitutional powers of the Commonwealth and those of the States and that the cause by virtue of the said Act has been removed into this Court.' 'Order that the...