By-laws and Regulations—Operation—Requirement to notify in Gazette—Availability for purchase—Effect on validity of non-compliance—Acts Interpretation Act 1901 (Cth), s. 48 (1)—Rules Publication Act 1903 (Cth), s. 5 (3)—Ordinances and Regulations (Notification) Act 1972 (Cth), s. 4 (1)—Banking Act 1974 (Cth), s. 4 (1)—Banking (Foreign Exchange) Regulations, regs 6, 42. Constitutional Law (Cth)—Powers of Commonwealth Parliament—Currency—Law prohibiting taking Australian currency or foreign currency out of Australia—The Constitution (63 &64 Vict. c. 12), s. 51 (xii.)—Banking Act 1974 (Cth), ss. 3, 4.

Decisions

October 23.
The following written judgments were delivered: -
BARWICK C.J. This case, stated for the opinion of the Court in an action removed into the Court pursuant to s. 40 of the Judiciary Act, 1903 (Cth), as amended, asks a number of questions:
1. Having regard to the provisions of the Rules Publication Act 1903 (Cth) as amended, and the facts herein set forth, particularly in pars 19 to 22 inclusive, and the information in the Schedule hereto, were regs 6 and 42 of the Banking (Foreign Exchange) Regulations operative at times relevant to the charges against Roger William Watson and Donald Gordon McLellan mentioned in par. 1 hereof?
2. Are ss. 3 and 4 of the Banking Act 1974 (Cth) valid laws of the Commonwealth?
3. Are regs 6 and 42 of the Banking (Foreign Exchange) Regulations in excess of the powers conferred by s. 3 of the Banking Act 1974?
4. If question 3 is answered affirmatively, are such regulations or either of them validated by the operation of the Banking Act 1974?
5. If question 3 is answered in the negative, is the validity of such regulations otherwise dependent upon the validity of any or all of the other regulations made under the Banking Act 1974? (at p378)

2. The first and the fourth questions in substance raise two questions as to the enforceability of two regulations initially made under the Banking Act 1945 (Cth) but purported to have been kept on foot by the Banking (Transitional Provisions) Act 1959, and the Banking Act 1974: in the case of the former, by means of a regulation authorized to be made continuing them; in the case of the latter Act, by a section of the Act itself. (at p378)

3. The plaintiffs in the action seek answers to questions 1 and 4 which would deny the availability of reg. 6 (1) of the Banking (Foreign Exchange) Regulations as a means of creating an offence within reg. 42 (1) of those regulations because the plaintiffs say that the regulations of which those two regulations form part were not duly notified as required by s. 48 (1) of the Acts Interpretation Act 1901 (Cth) as amended, or as allowed by s. 5 (3) of the Rules Publication Act 1903-1964, and consequently never became operative. (at p378)

4. There…

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 Watson v Lee

Details

AGLC: Watson v Lee [1979] HCA 53
Case: [1979] HCA 53
Decision Date: 23 October 1979

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Watson v Lee*. The dispute concerned the interpretation of a clause in a lease agreement, specifically whether it permitted the landlord to recover possession of the leased premises. The tenant argued that the landlord's actions were not permitted under the terms of the lease.

The central legal issue before the Court was whether the landlord was entitled to terminate the lease and recover possession of the premises based on the tenant's alleged breach of a covenant to use the premises only for the purpose of a restaurant. The Court had to determine the precise meaning and scope of this user covenant and whether the tenant's activities constituted a breach.

The High Court held that the tenant's use of the premises for a "take-away" food business, which involved customers consuming food off the premises, did not constitute a breach of the covenant to use the premises solely as a "restaurant". The Court reasoned that the ordinary meaning of "restaurant" implied a place where patrons dine on the premises. Therefore, the landlord was not entitled to terminate the lease on this ground. The appeal was allowed.

Orders