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Published online by Cambridge University Press: 24 January 2025
1 (1963-1964) 110 C.L.R. 194; 37 A.LJ.R. 413. High Court of Australia; Dixon C.J., McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.
2 ‘ 11 (1.)–Any person who is injured … by reason of any act or thing done … in contravention … of this Act … may, in the High Court, before a Justice without a jury, sue for and recover treble damages for the injury.’
3 ‘ 4 (1.)–ny person who, either as principal or as agent, makes or enters into any contract, or is or continues to be a member of or engages inany combination, in relation to trade or commerce with other countries or among the States-(a) in restraint of or with intent to restrain trade or commerce; or (b) to the destruction or injury of or with the intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers and consumers, is guilty of an offence.’
4 (1963-1964) 110 C.L.R. 194, 208.
5 Ibid. 209.
6 Ibid.
7 Ibid. 213– ‘ The purpose of the section is to destroy contracts which operate in restraint of, or made with intent to, restrain trade orcommerce and to render unlawful any such contract or the formation of, or the participation in, any combination having that effect or formed with that intention. … To my mind a contract or combination is, within the meaning of the section, in relation to such trade and commerce where it can be seen that, according to its tenor, the contract will operate directly on some activity which constitutes some part of such trade or commerce or where it appears that the designed activities of the combination will so operate…. Nor can I see that legislation can be said to transcend constitutional power where it purports to make unlawful agreements or combinations which … relate generally and without discrimination both to inter-State and intra-State trade. … it is not, I think, a valid objection that some such contracts or combinations may be found to relate also to other matters.’
8 Ibid. 217.
9 Ibid. 221.
10 Ibid. 231-232–‘ In other words, the Parliament may validly enact a law forbidding the making of contracts or the formation of combinations in relation to overseas or inter-State trade or commerce which in fact restrain or are intendedto restrain trade or commerce, be it overseas, inter-State or intra–State in character.’
11 Reference to pp. 171-174 of the transcript of argument discloses that s. 4 of the Act was discussed in relation to s. 92; the defendants wanted to preserve the right to raise this point at the trial but the plaintiffs wanted it to be dealt with. Although itwould seem that the Court did not leave thematter open there is nothing to prevent the Court from saying in the future that the case had nothing to do with s. 92.
12 The King v. Turner; Ex parte Marine Board of Hobart (1927) 39 C.L.R. 411; The King v. Burgess; Ex parte Henry (1936) 55 C.L.R. 608.
13 (1954) 92 C.L.R. 565.
14 Ibid. 575–‘ The process of slaughtering for export is part of the external trade in meat and it is not at all comparable with the process of mere manufacture, which can be divided off from the trade itself’; see also Fullagar J. at 596-597.
15 Ibid. 598.
16 (1962) 108 C.L.R. 189–In (1964) 38 A.L.J.R. 63, 64, the author of the case note dealing with Redfern v. Dunlop suggests‘ In Swift Australian Co. (Pty.) Ltd. v. Boyd Parkinson (1962) 108 C.L.R. 189, at p. 226, the Court has similarly allowed s. 51 (i)with its incidental powers to reach to slaughtering for the intra-State market’. It should be noted that the author is referring to the dissenting judgment of Owen J. and that the decision of the Court was to the opposite effect.
17 (1963-1964) 37 A.L.J.R. 399.
18 Ibid. 402 per Dixon C.J. ‘ … the legislative power which arises from the need of carrying out the Convention given by s. 51 (xxix) would suffice to support laws made with a complete disregard of the distinction between interstate and intra-State trade ; it would follow that no reliance upon s. 51 (i) by the Commonwealth would be neces –sary ’. Taylor J. did not consider this disregard of the distinction as detracting from the validity of that distinction in the operation of the trade and commerce power: ibid. 407 and regarded Commonwealth power as extending only to ‘properly defined controlled airspace ’: ibid. 408 and not to intrastate flights outside such airspace.
19 Airlines of New South Wales v. New South Wales [No.2] 38 A.L.J.R. 388.
20 Professor J. E. Richardson ‘ The Control of Monopolies and Restrictive Business Practices in Australia’ (1962) 1 Adelaide Law Review 239, 260-262.
21 (1949) 79 C.L.R. 497.
22 Thus in Wragg v. New South Wales (1953) 88 C.L.R. 353 it was held that an economic effect arising out of restrictions placed on an act of intrastate trade, however inevitably it may affect interstate trade did not infringe section 92 as the law operated directly on intrastate trade only and interstate trade was left legally free, the economic restrictions being an indirect effect of the law. Again, in Mansell v. Beck (1956) 95 C.L.R. 550 a law aimedat restricting gambling transactions was held not to restrict trade commerce or intercourse among the States; gambling as such was not regarded as part of the concept of interstate trade and it followed that a law restricting gambling had no direct effect on interstate trade.
23 (1954-1955) 93 C.L.R. 55, 78 per Dixon C.J., McTiernan, Webb and Kitto JJ.
24 Hughes and Vale Pty Limited v. New South Wales [No.2] (1956) 93 C.L.R. 127,163 per Dixon C.J.
25 (1935) 52 C.L.R. 570; (1936) 55 C.L.R. 1.
26 (]956) 95 C.L.R. 550.
27 (1939) 61 C.L.R. 701, 717