King Gee Clothing Co Pty Ltd v The Commonwealth

King Gee Clothing Co Pty Ltd and others brought proceedings against the Commonwealth and the Acting Prices Commissioner, seeking a declaration that Prices Regulation Order No. 1816 was beyond the powers conferred by the National Security (Prices) Regulations and was therefore void, along with an injunction to restrain its enforcement. The plaintiffs, who manufactured and/or semi-manufactured and/or made-up men's, youths', and boys' outerwear, alleged that the Order would adversely affect their businesses by severely limiting their profitability and that the Commissioner intended to enforce it.

The central legal issues before the High Court were whether Prices Regulation Order No. 1816, and specifically its provisoes, were a valid exercise of the power granted to the Acting Prices Commissioner under regulation 23 of the National Security (Prices) Regulations. The plaintiffs contended that the Order was invalid on several grounds, including that it improperly discriminated between traders based on whether they kept prescribed records, that it was vague and uncertain, and that it did not fix prices with practical certainty. The defendants demurred, arguing that the Order was a valid exercise of the Commissioner's powers.

The Court, in its judgment, considered the requirement for certainty in subordinate legislation. While Dixon J. expressed reservations about a general doctrine of certainty invalidating all subordinate legislation, the majority found that the provisoes to paragraphs 6, 7, and 11 of the Order were invalid. The reasoning was that these provisoes required matters of estimate, assessment, discretionary allocation, or apportionment, rather than ascertainable facts or figures, to determine the maximum price. This meant the provisoes did not prescribe a definite criterion or standard from which a price could be calculated, thus exceeding the Commissioner's power under regulation 23(1A). However, Dixon and Williams JJ. held that regulation 23(1A) did permit the Commissioner to make orders that distinguished between traders based on whether they kept prescribed records.

The High Court held that the provisoes to paragraphs 6, 7, and 11 of Prices Regulation Order No. 1816 were void for uncertainty, as they involved matters of estimate and judgment rather than ascertainable facts. Consequently, the Fourth Schedule also failed. The demurrer was overruled on this ground, meaning the case would proceed to consider other arguments.