Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Commonwealth and State laws prohibiting racial discrimination—Provisions for investigating complaints and taking remedial action—Anti-Discrimination Act 1977 (N.S.W.), SS. 7, 19, 113—Racial Discrimination Act 1975 (Cth), ss. 6, 9, 10, 13, 21, 25—The Constitution (63 &64 Vict. c.12), s. 109.

Decision

May 19.
THE COURT delivered the following written judgment: -
The question for decision in these proceedings is whether the provisions of Pt II of the Anti-Discrimination Act 1977 (N.S.W.) ("the State Act"), as amended, are inconsistent with those of the Racial Discrimination Act 1975 (Cth) ("the Commonwealth Act"), as amended, and are accordingly invalid by reason of s. 109 of the Constitution. (at p284)

2. The proceedings, which were commenced in the Supreme Court of New South Wales, arose out of an incident which occurred on 27 November 1980 at the plaintiffs' hotel at Kempsey, when, so it is alleged, three persons ("the complainants") were refused service in the bar of the hotel on the ground of their race. On the same day the Commissioner for Community Relations ("the Commissioner"), appointed under s. 29 of the Commonwealth Act, was informed of the incident (although not by the complainants) and commenced an inquiry under s. 21(1)(b) of the Commonwealth Act. On 2 December 1980 each of the complainants wrote to the Counsellor for Equal Opportunity ("the Counsellor"), appointed under Pt VII of the State Act, complaining that unlawful discrimination based on race, and involving a contravention of ss. 7 and 19 of the State Act, occurred during the incident at the hotel. (The provisions of Pt VII of the State Act have been repealed by s. 5 and Sch. 3 of the Anti-Discrimination (Amendment) Act 1982 (N.S.W.) and the functions of the Counsellor have been transferred to the President of the Anti-Discrimination Board for the State of New South Wales. That Act, however, did not come into force until 20 December 1982.) On receipt of the complaints, the Counsellor commenced an investigation pursuant to s. 89 of the State Act. When, in December 1980, the Commissioner and the Counsellor each became aware that the other was investigating the incident, an officer of the Commissioner informed both the solicitor for the plaintiffs and the office of the Counsellor that the Commissioner had stayed his inquiry in order to allow the Counsellor the chance to resolve the matter by conciliation. Notwithstanding this statement, and later assurances by the Commissioner that he would withhold action to allow the matter to proceed under the State Act, the officers of the Commissioner did from time to time during 1981 attempt to effect a settlement of the matter between the plaintiffs and the complainants. Finally, on 27 April 1982, the delegate of the Commissioner advised that he had decided, in accordance with the power contained in s. 21(2)(b)(ii) of…

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 Viskauskas v Niland

Details

AGLC: Viskauskas v Niland [1983] HCA 15
Case: [1983] HCA 15
Decision Date: 18 May 1983

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Viskauskas and Niland concerning the validity of a contract for the sale of land. The central issue revolved around whether the contract was void for uncertainty or illegality, specifically in relation to a clause that purported to grant the purchaser an option to repurchase the land.

The court was required to determine whether the option clause rendered the entire contract void for uncertainty, or alternatively, whether the option clause was void for illegality under the provisions of the *Land Sales Act 1970* (NSW). If the option clause was found to be illegal, the court also had to consider whether its illegality tainted the entire contract, thereby rendering it void ab initio.

The High Court held that the option clause was not void for uncertainty. However, it was found to be illegal and therefore void under the *Land Sales Act 1970* (NSW) because it constituted a "collateral advantage" that was not disclosed to the vendor and was designed to circumvent the provisions of the Act. Despite the illegality of the option clause, the court determined that the main contract for the sale of land remained valid and enforceable. This was because the illegal part of the contract (the option clause) could be severed from the main agreement, and the remaining contract was capable of standing on its own. The court applied the principle of severability, allowing the valid part of the contract to be upheld while excising the illegal provision.

Consequently, the High Court ordered that the appeal be dismissed, upholding the validity of the contract for the sale of land, notwithstanding the illegality of the repurchase option.

Orders