Hughes and Vale Pty Ltd v Gair - [1954] HCA 73

90 CLR 203

HUGHES AND VALE PROPRIETARY

PLAINTIFF-APPLICANT;

GAIR AND OTHERS

DEFENDANTS. InjunctionParliament-Restraining officers from presenting Bill for Royal assent.

It is only by reason of exceptional statutory provisions, if ever, that a court will grant an injunction to restrain the presentation of a Bill for the Royal assent.

Attorney-General (N.S.W.) v. Trethowan (1931) 44 C.L.R. 394 and Treth- owan v. Peden (1930) 31 S.R. (N.S.W.) 183; 48 W.N. 36, referred to.

APPLICATION FOR INJUNCTION.

This was a motion for an ex parte injunction, to restrain (1) the defendants the Speaker of the Legislative Assembly of the State of Queensland and certain officers of the parliament from presenting to His Excellency the Governor of the State of Queensland for Her Majesty's assent a Bill which had been passed by the Legislative Assembly of Queensland. The motion also sought injunctions restraining the individual members of the State cabinet their servants and agents from presenting or endeavouring to present or causing to be presented to His Excellency the Governor of the State of Queensland for Her Majesty's assent the said Bill.

J. D. Holmes Q.C. (with him G. D. Needham), for the plaintiff- applicant. There are provisions in the Bill which are self-operating and if the Governor's assent is given the applicant's business of an inter-State haulier would be seriously prejudiced. The injunc- tions sought are based on the self-operating features of this legisla- tion which amount to an absolute prohibition on inter-State trade until State government officials, in their own time, choose to decide how much should be paid by the applicant for a license to carry goods inter-State. The form of the orders sought follows closely the

90 CLR 204

orders that were made by the Supreme Court of New South Wales in Trethowan v. Peden 1.

The applicant should not be put into the position of great risk of being irreparably damaged unless it takes the risk of possibly flouting this law with all the penal consequences which follow. The plaintiff is not seeking to interfere with what is done in the Legislative Assembly of Queensland; it is only seeking to restrain officials from presenting a Bill. That distinction was observed in Trethowan's Case (1) and accepted as a distinction. Prima facie this Bill is not only void but is a self-operating provision. A question in relation to the right to an injunction could arise only in this country, or, possibly, in the United States of America, but it arises more clearly here because of the provisions of S. 92.

[DIXON C.J. referred to McDonald v. Cain 2.] In Trethowan's Case (1) there were five judges in New South Wales who took the view that jurisdiction existed. In those circum- stances, at least, the plaintiff has made a case for an ex parte injunction however soon the Court may make it returnable.

The following judgments were delivered by :-

DIXON C.J. The Court is of opinion that this application should be refused. An application for an injunction…

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 Hughes and Vale Pty Ltd v Gair

Details

AGLC: Hughes and Vale Pty Ltd v Gair [1954] HCA 73
Case: [1954] HCA 73
Decision Date: 2 December 1954

CaseChat Overview and Summary

Hughes and Vale Pty Ltd sought an ex parte injunction from the High Court of Australia to restrain the Speaker of the Legislative Assembly of Queensland and other parliamentary officers, as well as members of the State cabinet, from presenting a Bill passed by the Legislative Assembly for Royal assent. The applicant argued that the Bill contained self-operating provisions that would prejudice its inter-State hauling business by imposing an absolute prohibition on inter-State trade until a license fee was determined by state officials. The applicant contended that the injunction was necessary to prevent irreparable damage and that the form of the orders sought mirrored those granted in *Trethowan v. Peden*.

The primary legal issue before the High Court was whether it had the jurisdiction to grant an injunction to restrain the presentation of a Bill for Royal assent, particularly in light of the provisions of section 92 of the Constitution, which guarantees freedom of inter-State trade. The court was also required to consider the precedent set by *Attorney-General (N.S.W.) v. Trethowan* and *Trethowan v. Peden* regarding the availability of such injunctive relief.

Dixon C.J. stated that applications for injunctions to restrain the presentation of a Bill for Royal assent are exceptional and should not be granted. While acknowledging the applicant's argument based on *Trethowan's Case*, he expressed personal doubts about the correctness of that decision, particularly concerning its application to Bills with self-operating provisions. However, he indicated that if the Bill were to receive assent and the applicant could establish a prima facie case of irreparable damage, the Court would not hesitate to intervene with appropriate interlocutory relief, treating such a matter as urgent. McTiernan J. agreed with the Chief Justice's observations regarding *Trethowan's Case* but clarified that the refusal of the current application did not prejudice the ultimate determination of the correctness of the New South Wales Supreme Court's judgments in that case.

The application for an injunction was refused.

Orders