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[1953] HCA 87
High Court of Australia
1953-07-01
Kitto JJ
Original judgment source is linked above.
High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Kitto JJ. Nelungaloo Pty Ltd v The Commonwealth [No 4] [1953] HCA 87
ORDER Declare that within the meaning of s. 40A (1) of the Judiciary Act 1903-1950 there has arisen in the cause in the notice of motion mentioned a question or questions as to the limits inter se of the constitutional powers of the Commonwealth and those of the States and that the cause by virtue of the said Act has been removed into this Court. Order that the costs of the motion be costs in the cause.
This is an application on the part of the Attorney-General of the Commonwealth and also on the part of the Commonwealth and the other defendants in an action against them pending in the Supreme Court of New South Wales. The application is for either an order declaring that under s. 40A (1) of the Judiciary Act 1903-1950 the action has by force of that provision been removed into this Court or alternatively for an order under s. 40 of the Act removing the action into this Court. The plaintiff in the action is Nelungaloo Pty. Ltd., which was the plaintiff in the proceedings reported [2] . The claim then made by the plaintiff company was for the value of wheat delivered to the Australian Wheat Board for the board's cereal season 1945-1946.
In the present action the claim is in respect of wheat delivered to the board for the two following respective seasons, viz., 1946-1947 and 1947-1948. In respect of each of those seasons the plaintiff declares in two counts containing alternative causes of action. One set of counts is based on reg. 14 of the National Security (Wheat Acquisition) Regulations. The other set of counts is based on a duty which the pleading places upon the defendants as to the disposal of the wheat forming the pool in which the plaintiff's wheat of the cereal year was comprised. Each of the two respective counts based on reg. 14, after certain preliminary allegations, including an allegation that the property in the wheat vested in the Commonwealth by force of the regulations, states that the plaintiff duly delivered the wheat to the board and the board duly received and accepted the same and otherwise all conditions were performed and all things happened and all times elapsed necessary to entitle the plaintiff to be paid by the defendants compensation in accordance with reg. 14 of the regulations and to maintain this action to recover the same, but the defendants did not &c.
This states the essential ground of the cause of action and means that, according to the plaintiff's contention, the words of reg. 14 which describe the rights and interests of every person in the wheat as thereby converted into claims for compensation are not simply introductory to reg. 19 but operate to give a right to compensation which is not qualified by reg. 19. In other words the plaintiff ascribes to reg. 14 an effect which gives to the suppliers of wheat a right to compensation assessed on general principles, a right independent of reg. 19, not merely a right, governed by reg. 19, to participation in a pool.
The other set of two counts adopts the opposite hypothesis. These counts proceed on the assumption that the ascertainment of the recompense to the owner of wheat who delivered it to the board is governed by reg. 19 and that his compensation consists of a distributable share in the proceeds of a pool. On that footing these alternative counts assert that a duty rested upon the board, and also apparently upon the Minister and, no doubt vicariously, upon the Commonwealth, a duty in and about the disposal of the wheat in the pool, including the wheat delivered by the plaintiff, to obtain for and pay to the credit of the accounts of the pool a sum which represented the fair, just and reasonable value of the wheat. The alternative counts then allege a breach of the duty, stating that the defendants disposed of the wheat at prices which did not represent, and were generally below, the fair, just and reasonable value of the wheat, whereby the defendants were unable to pay to the plaintiff by way of dividends out of the accounts of the pool the sums which they should have been able to pay. These counts end with a claim that thereby the plaintiff lost the money and the use and benefit of the same which otherwise the plaintiff could and should have received from the defendants and was otherwise damnified. To this declaration the defendants have pleaded. For the purpose in hand it is enough to say of their pleas that in answer to the first set of two counts they rely on reg. 19 as providing the exclusive means of measuring compensation and that, whether they effectively do so or not, they intend in answer to the alternative set of two counts to deny the duty alleged.
The question upon which the decision of the present application depends, this being the state of the pleadings, is whether in the action there has "arisen" within the meaning of s. 40A (1) of the Judiciary Act a question inter se or whether within the meaning of s. 40 (1) the action is a cause arising under the Constitution or involving its interpretation or any part of the action arises under the Constitution or involves its interpretation.
The considerations upon which the application of s. 40A (1) and of s. 40 (1) to the set of two counts based on reg. 14 depends are quite different from the considerations governing the applicability of the same provisions to the other set of two counts.
The counts resting on reg. 14 are based on the proposition of law which is necessarily implied, that reg. 14 is independent of reg. 19 which does not qualify reg. 14 and does not govern the ascertainment of the compensation, or the right to compensation. This proposition the defendants in their pleas in effect take up and make its correctness an issue of law. The question, so far as this set of counts is concerned, is whether that issue of law contains, so that it has arisen, a question inter se, or, so that it is involved, an application of some interpretation of the Constitution. Now it is impossible in point of law to reach the conclusion that reg. 19 does not qualify reg. 14 except in one or other of two ways. One is by interpreting the regulations as producing that result. The other is by holding that reg. 19, because it fails to afford just terms, is constitutionally invalid and that it is severable from reg. 14 which, left thus standing alone, is construed as conferring the right upon which the plaintiff sues. It needs no argument to show that this second means of reaching the result involves the interpretation of the Constitution; for it depends upon the effect assigned to s. 51 (xxxi.) of the Constitution. In the previous litigation it was decided that to impugn the validity of reg. 19 under s. 51 (xxxi.) involved a question inter se within s. 74 of the Constitution and that is the same thing as saying within ss. 38A and 40A of the Judiciary Act.
But the other way of reaching the result that reg. 19 does not qualify reg. 14 namely, by the interpretation of the regulations, may, and indeed in my opinion must, involve the Constitution. The reason for saying that it may involve the Constitution is that, because regs. 14 and 19 cannot be valid unless they are justified by s. 51 (xxxi.), the interpretation placed upon them may be due to a view that unless they were construed as independent and as giving a right to compensation based upon reg. 14 without reg. 19, there would be no compliance with the requirement of just terms and the regulations would go outside the power. The reason for saying that in my opinion it must involve the Constitution is that, excepting the rule, which is made statutory by s. 46 (b) of the Acts Interpretation Act 1901-1950, that regulations must if possible be given a meaning and operation that will save their validity, there are so many and such strong considerations against an interpretation which makes reg. 14 confer a right to compensation independently of reg. 19 that I cannot think any one would adopt it if the constitutional power were ignored. The considerations to which I refer I have stated at length already in dealing with the appeal in the previous proceedings [1] . It is enough to refer to that statement.
But, as Tonking's Case [1] shows, if the interpretation is one adopted in the light of the constitutional power the contrary result may be reached. Because of Tonking's Case [1] , which was treated as applicable to the National Security (Wheat Acquisition) Regulations, the parties in the previous proceedings, until they reached the Privy Council, adopted the assumption that the effect of reg. 14 was to give a right to compensation independently of reg. 19 and that reg. 19 did not confine growers to participation in a pool. For the purpose of describing the position I shall repeat what I said on a former occasion: - "The result thus reached by the parties in this Court meant in substance that an interpretation of the regulations was tacitly adopted which was based upon the view that, to avoid the invalidation of reg. 19 as affording terms that were not just, they must be taken to mean that participation in a distribution under reg. 19 should not be the only means of obtaining compensation but that growers might, unless they chose to accept payments under reg. 19 in satisfaction, recover in proceedings at law compensation assessed on ordinary principles. It will be seen that although the interpretation was influenced, if not determined, by the view that if reg. 19 provided the only means of compensation it would be invalid, nevertheless, an actual conclusion that reg. 19 was invalid was not involved. But what was necessarily involved was a construction of regs. 14 and 19, which made reg. 14 confer a right to compensation independently of reg. 19, which was interpreted as affording only an optional means of obtaining satisfaction of the right so conferred" [2] .
Clearly enough this interpretation was adopted partly because it was considered that otherwise reg. 19 would be invalid for failure to fulfil the requirement of s. 51 (xxxi.) that the acquisition should be on just terms. This involves giving a meaning and application to s. 51 (xxxi.): see per Isaacs J., Pirrie v. McFarlane [3] ; Nelungaloo Pty. Ltd. v. The Commonwealth [4] ; and to do that is to decide a question inter se: Grace Bros. Pty. Ltd. v. The Commonwealth [5] ; Nelungaloo Pty. Ltd. v. The Commonwealth [6] . These cases show that the constitutional question which the Attorney-General and the defendants say is contained in the issue of law whether reg. 14 gives an independent right to compensation is a question inter se. The application therefore seems to depend on s. 40A (1) and not s. 40 (1). It was suggested, however, that if we should be of opinion that at this stage the question had not "arisen" within the meaning of the word arises in s. 40A (1) we might nevertheless think that the cause or part of the cause was one "involving" the interpretation of the Constitution within the meaning of the word involving in s. 40 (1). The two expressions may not be coextensive in their application. But a very wide meaning should now be given to s. 40A because it clearly is intended to cover all cases if they are of such a kind that the decision upon them of the High Court would come within s. 74 and the reasoning of the Privy Council in the Banking Case [1] , in Nelungaloo Pty. Ltd. v. The Commonwealth [2] , and in Grace Bros. Pty. Ltd. v. The Commonwealth [3] , interprets s. 74 as comprehending all cases where a question inter se is inherent in a conclusion forming the groundwork of a "decision" whatever may be said about the question by the parties or the Court.
It will be seen from the foregoing that in the conclusion essential to the plaintiff's success upon the first set of two counts, namely, that reg. 14 gives a right to compensation independent of reg. 19, there is inherent a process of legal reasoning into which there enters a question inter se. To decide that reg. 19 is invalid is to determine such a question. To interpret the two regulations so as to reach the plaintiff's conclusion is to invoke s. 51 (xxxi.) unless it is found possible to disregard the Constitution altogether in the construction of those regulations and at the same time by mere textual construction to reach the same conclusion. As I have already said, I would regard that as impossible. But the case made for the plaintiff in resisting the present application altogether depends upon it. The argument for the plaintiff is that as a matter of formal reasoning it must be true that a construction may be placed upon the regulations supporting the desired conclusion without taking into account the constitutional limitation imposed by s. 51 (xxxi.). It is not, the argument proceeds, the occasion for a judge of this Court to form or to act upon any opinion of his own that such reasoning cannot validly be adopted. That, so it is said, is a matter for the State Courts. Until they have excluded the possibility there can be no resort to the Constitution.
Let it be supposed that it is proper to put aside the opinion I have expressed that, except by reference to s. 51 (xxxi.) and the necessity of adopting any possible interpretation that would confine the regulations within that paragraph, reg. 14 and reg. 19 would never receive the construction it is sought to give to them. There still remains a fallacy in the argument for the plaintiff. The argument assumes that there are two alternative processes by which the regulations may be interpreted and their effect ascertained, that the processes are alternatives and that a choice lies with the party enabling him to exclude one of them and rely on the other or that at all events such a choice lies with the State Court. The fact is that interpretation is one process in which all the relevant considerations are to be taken into account and one of these considerations must in such a case as the present be the ambit and the conditions of the constitutional power in the exercise of which the law is enacted. This or that mind may give more or less weight to it. But regarded objectively the question whether upon the proper interpretation of the regulations, reg. 14 has the effect which the plaintiff assigns to it brings into consideration the scope of s. 51 (xxxi.). Moreover a decision against the plaintiff's contention cannot be given unless the interpretation which the plaintiff seeks to give to the regulations is negatived and the validity of the provision is affirmed or, though the invalidity of reg. 19 is conceded, the regulations are held inseverable and wholly invalid. Such a decision therefore must involve the question inter se. To state the matter in another way, the legal conclusion upon which the plaintiff's first set of counts depends is capable of being sustained only on grounds to which the interpretation of s. 51 (xxxi.) is either essential or relevant and cannot be denied except by negativing the grounds to which the interpretation of s. 51 (xxxi.) is essential or relevant.
It follows that on the plaintiff's first set of two counts and the defendants' pleas thereto there "arises" a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States.
The second or alternative set of two counts cannot be sustained except by extracting from the regulations, particularly reg. 19, an implied duty of the tenor stated in the pleading. I know of no grounds on which this can be done other than those which I myself endeavoured to state in the previous proceedings at [1] and to summarize at [2] , though the tenor of the duty is expressed not precisely in the same way as in the counts. The summary is as follows: - "As I see the matter, the basal issue whether reg. 19 as an exclusive provision of the means of compensating growers is valid depends upon the question whether it is possible to work out an interpretation of the regulations which would sufficiently protect the interests of the growers in the pool. Such an interpretation must rest upon the use of s. 46 (b) of the Acts Interpretation Act 1901-1950 and upon implications arising from the fact that the regulation is an exercise of the legislative power to acquire property on just terms. If it is legitimate by these means to give to the regulations an effect which would make it the board's duty to bring forward a recommendation based upon the results of the pool, which would limit the grounds upon which the Minister could reject the recommendation, and which would require that for wheat disposed of for the use of the Commonwealth or for domestic consumption a recompense to the pool must be made which was honestly fixed or estimated as a fair and reasonable value, if such an effect might properly be attributed to the regulations, then their validity might be supported. Their validity might then be supported, provided that in s. 51 (xxxi.) the expression "upon just terms" is not given the same meaning as "subject to payment of full (or adequate) compensation": cf. Grace Bros. Pty. Ltd. v. The Commonwealth [1] ".
This mode of interpretation once again draws in s. 51 (xxxi.) as an element in the reasoning. If this be not done I find it difficult to see how it is possible to find sufficient support for the contention.
For the foregoing reasons I think that there has arisen in the action a question or questions as to the limits inter se of the constitutional powers of the Commonwealth and those of the States and that an order should be made so declaring.
I think that the order should declare that within the meaning of s. 40A (1) of the Judiciary Act 1903-1950 there has arisen in the cause in the notice of motion mentioned a question or questions as to the limits inter se of the constitutional powers of the Commonwealth and those of the States and that the cause by virtue of the said Act has been removed into this Court. The costs of the motion should be costs in the cause.
I agree with the reasons for judgment of the Chief Justice and with the order he proposes.
This is an application by the Attorney-General of the Commonwealth under s. 40 of the Judiciary Act 1903-1950 for the removal of a cause to this Court from the Supreme Court of New South Wales. The cause, which is alleged by the Attorney-General to involve the interpretation of the Commonwealth Constitution, is one in which the plaintiff company sues the defendants for compensation in respect of wheat of the 1946-1947 and 1947-1948 seasons acquired by the Commonwealth under the National Security (Wheat Acquisition) Regulations. The application is made for removal of the cause before any evidence has been given in the action, and indeed before the close of the pleadings.
The wheat in question in this action went into Pools Nos. 10, 11 and11A; that in respect of which there was the litigation in this Court as reported in Nelungaloo Pty. Ltd. v. The Commonwealth [1] , was for the 1945-1946 season and went into No. 9 Pool. The claim is under reg. 14, as it was in the earlier action in respect of the wheat in No. 9 Pool, or in the alternative for the amount which the plaintiff should have been credited with in the accounts of Pools Nos. 10, 11 and11A if the Australian Wheat Board had obtained a proper price for the wheat, which the plaintiff denies.
The plaintiff in its declaration in the action does not question the validity of reg. 19, which was treated in the proceedings before Williams J. in the litigation referred to as providing an alternative method of compensation, but which on appeal to the Full Court was held by three of their Honours to provide the only basis of compensation and by two of their Honours to be invalid. However the defendants in their defence plead that the plaintiff is entitled to compensation only under reg. 19 which they contend is valid. If the defendants are right then the plaintiff must fail in the action; but so far there has been no replication and no application to strike out the defendants' plea.
This application for removal is opposed by the plaintiff on the ground that in determining whether the interpretation of the Constitution is involved in this action this Court is bound by the state of the pleadings at the time when the application is made, and that at this stage the pleadings do not disclose that the interpretation of the Constitution is involved.
In O'Neill v. O'Connell [2] , Starke J. referring to s. 40A of the Judiciary Act 1903-1940, said that this Court must be satisfied that the decision on the constitutional question is necessary for the adjudication of the rights of the parties, and that, he gathered, jurisdiction attaches at the moment the Supreme Court encounters, and not before it encounters, the constitutional question. Earlier in Ex parte Walsh and Johnson; In re Yates [3] , his Honour had observed on s. 40 that it was not necessary where removal of a cause is sought to establish that the interpretation of the Constitution will necessarily call for decision, but only that that subject is involved or entangled in the controversy; a statement which received the approval of Rich J. in Hopper v. Egg and Egg Pulp Marketing Board (Vict.) [1] . In the same case Isaacs J. [2] stated that if the Attorney-General can satisfy this Court of the nature of the case, as it appears at the moment that he applies, this Court makes the order.
Having regard to these statements of the law, the accuracy of which was not questioned, which were not contended to be inconsistent to any extent, and which I accept as correct, this application is, I think, premature, as it is not yet known what attitude the plaintiff will take as regards the exclusive application and validity of reg. 19 asserted by the defendants. It cannot be said then that the interpretation of the Constitution is actually "involved or entangled in the controversy", although it may appear almost certain to be so eventually.
An alternative application by the defendants for the declaration that the cause has been removed into this Court under s. 40A I would also dismiss. This further application received little, if any, attention in argument. The supporting affidavit refers only to the Attorney-General's application for removal under s. 40. If the claim under reg. 14 was necessarily based on s. 51 (xxxi.) of the Constitution, and because of that section alone reg. 19 was necessarily assumed to give an option to the wheat growers as to the nature of the compensation they would receive if it was to be regarded as a valid regulation, then, when the plaintiff filed its declaration on 27th March 1953 basing its claim for compensation on reg. 14 without making any reference to reg. 19, thereupon the action was by force of s. 40A (1) removed into this Court; so that when the defendants on 4th August 1953 filed in the Supreme Court their plea that reg. 19 provided the only method of assessing the compensation the action had already been removed into this Court. However I think the defence was rightly filed in the Supreme Court, as, to repeat the language of Starke J. already quoted above, the decision on the constitutional question was not at that stage necessary for the adjudication of the rights of the parties. This was because the plaintiff had not so far joined issue on the defendants' plea. Meanwhile the decision on the constitutional question was not necessary for the adjudication. Up to that stage it is the policy of s. 40A (1), as seen by Starke J., to allow the proceedings to remain in the Court in which they were commenced. But Rich and Starke JJ. perceived a different policy in s. 40 when the application for removal is made by an Attorney-General. In that case, although the constitutional question must be involved or entangled in the proceedings, i.e., must be actually raised for decision, the Attorney-General is entitled to have the proceedings removed into this Court, even if there are other declarations or pleas not affecting the Constitution which might prove sufficient to dispose of the matter. Under s. 40 an Attorney-General is not bound to wait until it can be seen that the constitutional question is necessary for the adjudication of the rights of the parties.
It may be that Parliament in enacting s. 40A (1) thought that the Constitution would not permit of the automatic removal of a matter to this Court from a State Court unless a decision on the constitutional question was necessary for the adjudication of the rights of the parties; but, in enacting s. 40, thought that a risk might be taken where an Attorney-General applies for the removal; provided a constitutional question was actually involved or entangled, although a decision on it might eventually prove to be unnecessary.
As to the constitutional requirements, it should be noted that in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australia [1] , Isaacs J. stated that "arising" means "does arise" and not "may arise"; and that if it were otherwise there would be an undue extension of Commonwealth judicial power. His Honour had previously stated in George Hudson Ltd. v. Australian Timber Workers' Union [2] , that when a question inter se arises, and not before, the hand of the Supreme Court is stayed and the matter becomes a Federal matter.
I agree with the judgment of the Chief Justice, and I do not think that there is anything that I can usefully add.
I agree that, for the reasons which have been stated by the Chief Justice, an order should be made declaring that the cause to which this application relates has been removed into the Court by virtue of s. 40A (1) of the Judiciary Act 1903-1950. Because of some of the arguments which were advanced in support of the application for an order for removal under s. 40 (1), I venture to add a few words with particular reference to the first two counts of the declaration.
The cause in question is an action instituted on the common law side of the Supreme Court of New South Wales. The plaintiff has declared, and the defendants have filed pleas. It is at this stage of the action that the defendants and the Attorney-General of the Commonwealth come to this Court, contending that either the cause is one involving the interpretation of the Constitution within the meaning of s. 40 (1) of the Judiciary Act, or there has arisen in the cause a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States within the meaning of s. 40A (1).
It is surely clear, as Sir Garfield Barwick submitted, that before we can accept either of these contentions we must see that the interpretation of the Constitution is actually involved or an inter se question has actually arisen, and see it now, and see it on the pleadings. It cannot be enough to say that in view of the general nature of the action it is very probable that such a question will be involved or will arise. The sections are quite specific as to the conditions in which they are to apply. The applicants must affirm either that the action does involve the interpretation of the Constitution or that an inter se question has arisen in it; and their affirmation must be made good from the pleadings.
The only question of constitutional interpretation which is said to be involved is an inter se question; and, that being so, it must follow from the foregoing that the application either must succeed under s. 40A (1) or must fail altogether; for unless it can be said that the inter se question has already arisen on the pleadings it cannot possibly be said that the cause is shown by the pleadings to involve that question.
The point about the first and second counts which is crucial for the purpose of considering whether an inter se question has yet arisen is that, although the declaration alleges that by virtue of the National Security (Wheat Acquisition) Regulations (referred to as a whole) the plaintiff's wheat was acquired by the Commonwealth, and that by the regulations the plaintiff was required to deliver the wheat to the defendant board, it selects reg. 14 alone as the provision in accordance with which the plaintiff claims a right to be paid the amount of compensation sued for. Thus by plain implication the declaration excludes reg. 19 as a provision affecting the compensation. On the other hand, the pleas, whatever defects they may have (and an application to strike out portions of them was foreshadowed), show beyond doubt that in the forefront of the defence is an assertion that reg. 19 is definitive of the right to compensation.
With the filing of the pleas the action reached a stage at which the parties were at issue on this question. But the plaintiff says that still no inter se question was raised, because the Supreme Court might be able to decide the point in the plaintiff's favour without resort to constitutional considerations at all. It might hold that the regulations, considered simply as a piece of English, mean that a dispossessed owner of wheat may, under reg. 14, recover compensation either according to reg. 19 or in disregard of it, as he pleases. The submission was added that it is not for this Court on the present application to say whether the Supreme Court would be right or wrong in so holding; what matters is that unless and until the Supreme Court has decided the point against the plaintiff a situation has not been reached in which the plaintiff needs to rely upon any argument involving s. 51 (xxxi.).
It would not be a valid answer to this argument that there is little likelihood of the plaintiff's obtaining a favourable decision on the point, and that therefore the interpretation of the Constitution is involved in the action subject only to a contingency which appears to be more or less remote. To say this would be to confess that the interpretation of the Constitution is not yet involved in the action, and that the inter se question has not arisen and by possibility may not arise. I therefore should be disposed to agree with the plaintiff's argument if the suggestion with which it commences, that the construction of the regulations adopted by the declaration may possibly be reached by a process of reasoning independent of the Constitution, had any reality about it. But it clearly has not. The answer to the submission that this is a matter for the Supreme Court to decide is simply that there is really nothing to be decided, until ideas founded upon s. 51 (xxxi.) are introduced into the consideration of the matter. Until then, the question whether reg. 19 can be ignored by a claimant for compensation has only to be asked to evoke its self-evident answer. This may be seen at once by asking how the matter would stand if the regulations had been made under a State Act so that their construction could not be influenced by s. 51 (xxxi.). It would not be too much to say of a decision holding that an intention was evinced by such State regulations to give a dispossessed owner a choice between the compensation he would receive under the scheme established by the regulations, determined as it would be in accordance with reg. 19, and the compensation he could recover by going outside the scheme and obtaining in an action at law a verdict arrived at in disregard of reg. 19, that it would be a decision not merely wrong but simply perverse.
Once this fact is recognized, the conclusion is inevitable that the pleadings have already reached the point of disclosing that the plaintiff cannot succeed on either of the first two counts without invoking considerations which depend upon s. 51 (xxxi.) of the Constitution, in order to make good the assertion implicit in the counts, that reg. 14 is to be construed as giving a right to recover compensation independently of reg. 19. An inter se question has therefore arisen in the cause.
As to the remaining counts of the declaration, I have nothing to add.
[Editor's Note. - Regulations 14, 15, 16, 17 and 19 are printed in the report of earlier proceedings between the same parties: - see Nelungaloo Pty. Ltd. v. The Commonwealth (1950) 81 C.L.R. 144, at pp. 146-148.]
Nelungaloo Pty Ltd
The Commonwealth