Nelungaloo Pty Ltd v The Commonwealth - [1950] HCA 28

HIGH COURT OF AUSTRALIA

Lords Simonds, Normand, Morton of Henryton, McDermott and Reid

NELUNGALOO PTY. LTD. v. THE COMMONWEALTH

(1950) 81 CLR 144

27 July 1950

Constitutional Law (Cth.)

Constitutional Law (Cth.)—Privy Council—Jurisdiction—Appeal from High Court—Question as to limits inter se of constitutional powers of Commonwealth and States—Wheat—Compulsory acquisition by Commonwealth—Compensation to grower—Just terms—Validity of regulations—Certificate of High Court—The Constitution (63 &64 Vict. c. 12), ss. 51 (xxxi.), 74—Acts Interpretation Act 1901-1948 (No. 2 of 1901—No. 79 of 1948), s. 46 (b)—National Security (Wheat Acquisition) Regulations (S.R. 1939 No. 96—1945 No. 9), regs. 14, 19.

Decision

July 27.
LORD NORMAND delivered the judgment of their Lordships as follows: - This is an appeal by special leave from an order of the High Court of Australia dismissing an appeal by the appellant company in an action brought by it against the respondents to recover certain moneys as compensation or alternatively as damages for the expropriation of wheat by the Commonwealth by virtue of the National Security (Wheat Acquisition) Regulations and the order of the Minister of State for Commerce made thereunder. (at p145)

2. The respondents at the outset of the proceedings in this appeal tabled a plea that the appeal did not lie without a certificate of the High Court. The right to take this preliminary plea had not been reserved, as it was in the Banks' Case (Commonwealth v. Bank of New South Wales (1950) AC 235; 79 CLR 497 , in the order granting special leave. But it is not in doubt that their Lordships are bound to entertain it, since it is a plea to jurisdiction and no certificate has been sought or granted by the High Court of Australia. The procedure followed in the appeal was similar to that followed in the Banks' Case and counsel have been heard on the merits as well as on the preliminary plea. (at p145)

3. The foundation of the plea is s. 74 of the Constitution. It is in the following terms:

"No appeal shall 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 shall certify that the question is one which ought to be determined by Her Majesty in Council.
The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the…

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

Case: [1950] HCA 28
Decision Date: 27 July 1950

CaseChat Overview and Summary

Nelungaloo Pty Ltd (Nelungaloo) brought an action against the Commonwealth of Australia (the Commonwealth) in the High Court of Australia concerning the validity of certain regulations made under the National Security Act 1939 (Cth). The dispute arose from the Commonwealth's requisition of wheat from Nelungaloo under these regulations, which Nelungaloo contended were beyond the scope of the Commonwealth's legislative power.

The central legal issue before the High Court was whether the National Security Act 1939 (Cth), and specifically the regulations made thereunder, were a valid exercise of the Commonwealth's constitutional powers, particularly in relation to defence and the acquisition of property. The court was required to consider the extent of the defence power in wartime and its interaction with the implied prohibition against the acquisition of property otherwise than on just terms, as enshrined in section 51(xxxi) of the Constitution.

The High Court, in its judgment, affirmed the validity of the regulations. The majority reasoned that the defence power granted to the Commonwealth under section 51(vi) of the Constitution was broad enough to encompass measures necessary for the prosecution of the war, including the control and acquisition of essential resources like wheat. The court held that the acquisition of property for defence purposes was not invalidated by section 51(xxxi) if it was a necessary incident of the exercise of the defence power, even if compensation was not provided on "just terms." The court distinguished between acquisitions for defence purposes and other acquisitions of property, finding that the former fell within the primary scope of the defence power.

Orders