Charles Marshall Pty Ltd v Collins - [1957] HCA 13

HIGH COURT OF AUSTRALIA

Viscount Simonds, Lords Morton of Henryton, Cohen and Somervell of Harrow

CHARLES MARSHALL PTY. LTD. v. COLLINS

(1957) 96 CLR 1

19 March 1957

Constitutional Law (Cth.)

Constitutional Law (Cth.)—Consistency between Federal and State laws—Award of conciliation commissioner—Dealing comprehensively with conditions of employment but not with long service leave—Long service leave outside jurisdiction of conciliation commissioner—State Act prescribing long service leave for, inter alia, persons covered by award—Validity—The Constitution (63 &64 Vict. c. 12), s. 109—Conciliation and Arbitration Act 1904-1952 (No. 13 of 1904—No. 34 of 1952), ss. 13 (1) (c), 25 (c), 51—Factories and Shops (Long Service Leave) Act 1953 (No.5706) (Vict.), ss. 7, 9 (2), (4).

Decision

March 19. LORD SOMERVELL OF HARROW delivered the judgment of their Lordships as follows:-
This is an appeal from the High Court of Australia by special leave granted by Her Majesty in Council on 1st June 1956. (at p2)

2. The issue in the appeal is whether an Act of the State of Victoria, the Factories and Shops (Long Service Leave) Act 1953 (hereinafter called the State Act), is inconsistent with a law of the Commonwealth and therefore invalid to the extent of the inconsistency under s. 109 of the Constitution. The provisions of the Commonwealth law which are alleged to create the inconsistency are contained in the Metal Trades Award 1952, made by a conciliation commissioner under the Conciliation and Arbitration Act 1904- 1952 (Cth.). Both parties accept the position as found by the High Court that the provisions of the award are by the terms of the Conciliation and Arbitration Act brought into force as part of the law of the Commonwealth for the purposes of s. 109. (at p3)

3. Sections 7 and 9 which are the main operative sections of the State Act are as follows:-

7. (1) Subject to this Act every worker shall be entitled to long service leave on ordinary pay in respect of continuous employment with one and the same employer. (2) The amount of such entitlement shall be - (a) on the completion by a worker of twenty years continuous
employment with his employer - thirteen weeks long service
leave and thereafter an additional three and a quarter weeks long service leave on the completion of each additional five years in continuous employment with such employer; (b) in addition, in the case of a worker who has completed more than twenty years continuous employment with his employer and whose employment is terminated -

(i) by the employer for any cause other than serious and wilful misconduct; or (ii) by the worker on account of illness incapacity or domestic or any other pressing necessity where such illness incapacity or necessity is of such nature as to justify such termination - such amount of long service leave as equals one-eightieth of the period of his continuous employment since the last accrual of entitlement to long service leave under par. (a) of this sub-section; (c) in the case of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Charles Marshall Pty Ltd v Collins [1957] HCA 13
Case: [1957] HCA 13
Decision Date: 19 March 1957

CaseChat Overview and Summary

Charles Marshall Pty Ltd (the appellant) appealed to the House of Lords from a decision of the Full Court of the Supreme Court of South Australia, which had affirmed a judgment of Napier CJ. The dispute concerned the interpretation of a lease agreement and the appellant's right to exercise an option to renew the lease. The core of the disagreement lay in whether the appellant had fulfilled the conditions precedent to exercising the option, specifically the requirement to have "paid all rent and other moneys due and payable under this lease".

The central legal issue before their Lordships was whether the appellant had satisfied the condition precedent to exercising the option to renew the lease. This involved determining whether the phrase "all rent and other moneys due and payable under this lease" encompassed not only rent and moneys that had fallen due but also those that had become payable by reason of the lessee's default, even if not yet formally demanded or paid. The court had to consider the precise meaning and scope of this contractual obligation in the context of the lease agreement.

The House of Lords held that the condition precedent required the payment of all rent and other moneys that had become due and payable, irrespective of whether a formal demand had been made. Viscount Simonds, delivering the leading judgment, reasoned that the words "due and payable" were not limited to sums that had been formally demanded. He emphasised that the obligation was to pay what was due, and the lease itself created the obligation to pay rent at specified times. Therefore, any rent or other moneys that had fallen due under the lease, even if not yet demanded, were captured by the condition. The appeal was allowed, and the judgment of the Supreme Court of South Australia was reversed.

Orders