Constitutional Law (Cth)—Privy Council—Jurisdiction—Appeal from High Court—Question as to limits inter se of constitutional powers of Commonwealth and State—What constitutes inter se question—Exclusive power of Commonwealth—Claim that State statute attempts to deal with same subject matter—Duties of excise—Decision that duty of excise not imposed by State statute—Inter se question—The Constitution (63 &64 Vict. c. 12), ss. 51 (i), 74, 90, 92—Licensing Act 1928 (Vict.), s. 19 (1) (a)—The Licensing Acts, 1912 to 1958 (Q.), s. 18 (1). Privy Council—Petition for special leave to appeal—Question as to jurisdiction of Board to hear appeal—Practice as to determination of jurisdictional question.
Decision
June 14. LORD RADCLIFFE delivered their Lordships' reasons for judgment in each appeal as follows:-
Dennis Hotels Pty. Ltd. v. Victoria.
The appeal in this case comes before the Board by special leave granted by Her Majesty by Order in Council dated 3rd August 1960. By this order leave was reserved to the respondents to raise as a preliminary point at the hearing of the appeal the plea that in the absence of a certificate of the High Court of Australia granted under s. 74 of the Commonwealth of Australia Constitution the appeal was incompetent. (at p623)
2. This preliminary objection to jurisdiction was duly raised and argued before the Board concurrently with the opening of an appeal in similar circumstances Whitehouse v. Queensland, and at the conclusion of the argument their Lordships intimated that in their opinion the objection succeeded and that it was not open to them to proceed to the hearing of the substantive appeals. It is now for their Lordships to state their reasons for this opinion. (at p624)
3. Section 74 of the Constitution preserves the prerogative right of Her Majesty in Council to grant special leave of appeal from the High Court but subjects that right to certain limitations which are set out in the section. The main limiting provision is to the effect that no appeal is to be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, unless the High Court itself certifies that the question is one which ought to be determined by Her Majesty in Council. A lengthening line of judicial opinions of some complexity has by now made it clear that the meaning of these words is more elusive than at first sight it would appear to be. (at p624)
4. The nature of the decision of the High Court from which it is sought to appeal can be stated with fortunate brevity. It is convenient to relate it in terms…
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.
Continue reading Dennis Hotels Pty Ltd v Victoria
Sign in free to access the full text
Details
AGLC
Dennis Hotels Pty Ltd v Victoria [1961] HCA 36
Case
[1961] HCA 36
Decision Date
CaseChat Overview and Summary
Dennis Hotels Pty Ltd (the appellant) appealed to the Privy Council from a decision of the Supreme Court of Victoria concerning the interpretation of a lease agreement. The dispute centred on whether the appellant, as the lessee, was entitled to a renewal of its hotel lease under the terms of the original agreement, or whether the lessor, the respondent, was entitled to refuse renewal and require the appellant to vacate the premises.
The Privy Council was required to determine the proper construction of clause 5(a) of the lease agreement, which stipulated that the lessor would grant the lessee a renewed lease "upon the like terms and conditions as are hereinbefore expressed" unless the lessor had given notice of intention to resume possession of the premises for the purpose of rebuilding or other substantial works. The central legal question was whether the lessor's intention to resume possession for the purpose of carrying out substantial works, even if those works were not immediately planned or commenced, was sufficient to defeat the lessee's right to a renewal.
The Privy Council held that the lessor's right to refuse renewal under clause 5(a) was contingent upon the lessor having a genuine intention to resume possession for the purpose of rebuilding or carrying out other substantial works. The mere assertion of such an intention, without evidence of its bona fides or a clear plan for the works, was insufficient to deprive the lessee of its contractual right to a renewal. The court emphasised that the language of the clause required a positive intention and a purpose for which possession was to be resumed, rather than a mere possibility or a speculative future intention. The Privy Council allowed the appeal, finding that the lessor had not established a sufficient basis to refuse the renewal of the lease.