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[1954] HCA 73
High Court of Australia
1954-07-01
Taylor JJ, McTiernan J, Webb J, Fullagar J, Kitto J
Original judgment source is linked above.
High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar, Kitto and Taylor JJ. Hughes & Vale Pty Ltd v Gair [1954] HCA 73
The Court is of opinion that this application should be refused. An application for an injunction restraining the presentation of a Bill for the Royal Assent is, I will say, not unprecedented but it is at least very exceptional. We do not think it should be granted on this occasion or later or in any case.
I should like to say for myself that the problem presented as to the effect of Attorney-General (N.S.W.) v. Trethowan [3] is by no means new. I was a member of the Court in 1931 when it decided that case and I can say from my own personal recollection that when the Court limited the grant of special leave so that the question should not be argued, and the question before the Court was restricted to the validity of s. 7A of the Act there in question it was not because the Court was of opinion that the decision of the Supreme Court on that particular point was right, but because it was thought inconvenient to allow a procedural question of that sort to intrude itself into such a matter calling for urgent and definite decision. For myself I have long entertained a doubt as to the correctness of the decision of the Full Court of New South Wales in that case even on the terms of that Act. The Act was of a very special character and contained a provision in sub-s. (2) of s. 7A that a Bill for any purpose within sub-s. (1) of s. 7A should not be presented to the Governor for His Majesty's assent unless the Bill had been approved by the electors in accordance with the section. Such a provision of course amounted to an express negative provision, containing a prohibition of the course in the event restrained by injunction. Because of the doubt I then entertained, which I still entertain, as to the correctness of that decision, in my own judgment delivered in this Court in Trethowan's Case [1] , in speaking of the hypothesis I put of a similar Bill coming before the United Kingdom Parliament, I used the expression that if it was found possible, as appears to have been done in this appeal, to raise for judicial decision the question whether it was lawful to present a Bill for that assent, the courts would be bound to pronounce it unlawful to do so.
In the present case the applicant, once the Bill is assented to, will have its remedy and if it thinks fit to apply and makes out a prima facie case this Court will not be slow to intervene to give that interlocutory relief which is appropriate. The Court would treat it as an urgent matter.
I agree with the observations made by his Honour the Chief Justice about Trethowan's Case [2] , but in stating this I would like to make it understood that I do not consider that a determination of this application prejudices the question whether the judgments of the Justices of the Supreme Court in Trethowan's Case [2] are right or wrong. On the question excluded from the grant of special leave to appeal to this Court.
Hughes & Vale Pty Ltd
Gair