Leeder v Ellis - [1952] UKPCHCA 2

86 CLR 64

The questions now left for determination are :-(1) Whether the regulation was valid and, if not, (2) whether it was validated by S. 7 of the Customs Act 1951; and, if so, (3) whether such validation is to be disregarded for the purpose of these proceedings.

As to (1): S. 112 of the Customs Act 1901-1936 provided, SO far as material, that

(1) The Governor-General may, by regulation, prohibit the exportation of any goods

(b) the exportation of which would, in his opinion, be harmful to the Commonwealth

(2) The power contained in subsection (1)

shall extend to authorize the prohibition of the exportation of goods generally, or to any specified place, and either absolutely or SO as to allow of the exportation of the goods subject to any condition or restriction "

By the Customs (Prohibited Exports) Regulations the exportation of goods specified in six schedules is prohibited except that in the Third Schedule there is a list of classes of goods the exportation of which is prohibited unless the conditions and restrictions specified in that schedule opposite the names or descriptions of such goods are complied with.

In S.R. 1946 No. 138 the Govenor-General, after reciting the provisions of S. 112 of the Customs Acts 1901-1936, states, omitting immaterial parts :-

"and whereas I am of opinion that the exportation of goods specified in this Regulation, except with the consent of the Minister of State for Trade and Customs, would be harmful to the Common- wealth

Now therefore I

make the following regulation Amendment of the Customs (Prohibited Exports) Regulations. The Third Schedule

is amended (b) by adding, at the end thereof the following items :-

65. Metals, non-ferrous, scrap

The intending exporter shall produce to the Collector of Customs a covering approval issued by the Department of Supply and Shipping". It will be observed that in the recital reference is made to the Minister of State for Trade and Customs whereas in the condition opposite item 65 the reference is to the Department of Supply and Shipping.

Now is the condition set out opposite item 65 a valid condition ? In my opinion it is not. The goods, the exportation of which is, in the opinion of the Governor-General, harmful to the Commonwealth are the goods

86 CLR 65

the exportation of which is not consented to by the Minister of Trade and Customs not the exportation of all non-ferrous scrap

THE QUEEN

metal, but only that to which the Minister does not consent. This determination is made by the Governor-General exclusively under S. 112 1 (b) and is valid, although the Governor-General limits what is harmful by reference to the Minister's consent. This is not an exercise of the power given to the Governor-General by S. 112 (2) to permit exportation subject to conditions or restrictions. The Governor-General purports to exercise that further power later in the amendment to the regulations by adding to item 65, the so-called condition appearing opposite thereto. If…

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 Leeder v Ellis

Details

AGLC: Leeder v Ellis [1952] UKPCHCA 2
Case: [1952] UKPCHCA 2
Decision Date: 8 October 1952

CaseChat Overview and Summary

In the matter of Leeder v Ellis, the respondents appealed to the Privy Council from the decision of the High Court of Australia, which had allowed the appeal of the respondent, Edie Maude Leeder, from the judgment of the Full Court of the High Court in Ellis v Leeder. The central issue in this case involved the interpretation and application of the New South Wales statute, "Testator's Family Maintenance and Guardianship of Infants Act 1916-1938." The question at hand was whether the Full Court of the Supreme Court of New South Wales was correct in refusing to admit fresh evidence regarding the valuation of the testator's estate, and subsequently dismissing the widow's application for maintenance. The High Court had allowed the appeal, awarding the respondent the whole estate, while the Privy Council found itself in disagreement with the High Court on both points.

The Privy Council first addressed the issue of the admission of fresh evidence, finding that the principles guiding an appellate court when considering an application for further evidence in a case before a jury are of general application. However, the circumstances relevant to taking into account may differ. The Council concluded that the Full Court had not erred in refusing to admit the fresh evidence. The evidence sought was not of a factual nature but rather an opinion on the valuation of the house, which could have been challenged by the appellant. The Council held that the facts of the case did not justify the High Court interfering with the Full Court's exercise of discretion under Section 84 of the Equity Act.

The Council then turned to the question of whether the High Court was justified in reversing the Full Court's decision based on the facts established before Sugerman J. The relevant assets of the estate were the equity of redemption of the house, which was valued at £1,000 by the Valuer-General at the testator's death. The Council found that the Full Court was correct in its decision, and thus reversed the decision of the High Court, restoring the order of the Full Court of the Supreme Court of New South Wales.

Orders