Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8

ORDER Demurrer allowed.

Cur. adv. vult.

The following written judgments were delivered:—

March 11, 1953 Dixon C.J.

In each of the two actions now before us on demurrer to the respective statements of claim the foundation for the relief claimed must be discovered in the operation of s. 92 of the Constitution to protect from the provisions of the Benefit Associations Act 1951 Vict. businesses of the kind carried on by the companies which are plaintiffs in so far as such businesses have an inter-State character. The question for our determination is, I think, whether s. 92 has any such operation.

There is no substantial distinction between the positions of the two plaintiff companies, and it is better to speak in terms of one of them. The case of the Hospital Provident Fund Pty. Ltd. stands first, and it will be enough to refer to that case. We must take the facts as alleged in the statement of claim.

Before the date when the statute came into operation, namely 7th November 1951, the company had carried on the business of contracting to provide hospital benefits. In consideration of a payment, or of periodical payments, made by a contributor the company contracted with him to make payments to him or on his behalf according to a given scale in respect of periods during which he or members of his family or his dependants might be accommodated and maintained in hospital. The company was incorporated in Victoria but it was registered in the States of New South Wales, South Australia and Tasmania as a company incorporated out of those respective States.

The claim to the protection of s. 92 against the operation of the Victorian statute rests upon allegations to the following effect. The company maintained offices and office staff and employed servants and agents not only in Victoria but also in New South Wales and South Australia. It also maintained equipment and motor cars in these States. The purpose of this was "to conduct the said business including business conducted across State boundaries". Funds were maintained in the same three States for the purpose of meeting claims by contributors and the liabilities and commitments of the company. The contracts made by the company with contributors involved a liability in the company to pay claims at any address of the contributor in Australia and for maintenance and accommodation at any hospital in any part of Australia. Sometimes the claims would be payable from the office in Victoria notwithstanding that the contributor resided in New South Wales or South Australia. In other cases contributors residing in New South Wales and in South Australia would receive payment from the company's offices in those respective States. E converso contributions from contributors residing in New South Wales and in South Australia might be payable to the company in those respective States or in Victoria. The meetings of the directors took place in Victoria. But, for the purpose of carrying on the company's business it was necessary for directors and servants and agents of the company to travel from one to another of these three States. Funds in Victoria and New South Wales, when necessary, were transmitted to meet claims, not only between these States but to South Australia.