In the Matter of the Trade Practices Act 1974 as amended (Section 163A) And In the Matter of an Application by Tooth & Co Ltd [1978] FCA 81

In the Matter of the Trade Practices Act 1974 as amended (Section 163A) And In the Matter of an Application by Tooth & Co Ltd [1978] FCA 81

Section 47(9)(a) of the Trade Practices Act 1974 is invalid insofar as it uses the words 'or renew', as it effects an acquisition of property without providing just terms, contrary to s.51(xxxi) of the Constitution. The remainder of the provision is valid as a law with respect to trading corporations under s.51(xx). The Court has jurisdiction to make this declaration under s.163A of the Act and associated powers.

Jurisdiction
Australia
Judgment Date
20 September 1978
Procedural Posture
Special Case / Stated Case / Full Court Determination of Stated Questions (final Judgment Pending Argument on Costs)
Outcome
Section 47(9)(a) of the Trade Practices Act 1974 is invalid to the extent it uses the words 'or renew'; questions answered accordingly; proceedings stood over for argument on costs.
Legal Topics
['jurisdiction of Federal Courts' 'validity of Commonwealth Legislation' 'acquisition of Property' 'corporations Power' 'declarations as to Validity' 'exclusive Dealing']
['constitutional Law' 'trade Practices'] ['jurisdiction of Federal Courts' 'validity of Commonwealth Legislation' 'acquisition of Property' 'corporations Power' 'declarations as to Validity' 'exclusive Dealing']

Case Brief

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Procedural Posture

Special Case / Stated Case / Full Court Determination of Stated Questions (final Judgment Pending Argument on Costs)

Legal Issues

  1. 1 ['Whether the Court has jurisdiction under s.163A of the Trade Practices Act 1974 or otherwise to declare s.47(9)(a) valid as a law of the Commonwealth' "Whether s.47(9)(a) of the Trade Practices Act 1974 or any part thereof is a valid exercise of legislative power, in particular regarding 'or renew' and the acquisition of property without just terms" 'Whether the provision is a law with respect to corporations under s.51(xx) of the Constitution' 'Whether the provision is a law with respect to the acquisition of property under s.51(xxxi) of the Constitution and if so, whether just terms are provided']

Ratio Decidendi

Section 47(9)(a) of the Trade Practices Act 1974 is invalid insofar as it uses the words 'or renew', as it effects an acquisition of property without providing just terms, contrary to s.51(xxxi) of the Constitution. The remainder of the provision is valid as a law with respect to trading corporations under s.51(xx). The Court has jurisdiction to make this declaration under s.163A of the Act and associated powers.

Court Disposition

Section 47(9)(a) of the Trade Practices Act 1974 is invalid to the extent it uses the words 'or renew'; questions answered accordingly; proceedings stood over for argument on costs.

Orders

  • ['(a) No' '(b) This question will not be answered' '(c) Yes' "(d) Section 47(9)(a) is invalid in so far as it uses the words 'or renew'" 'Proceedings stood over for argument on costs']