Re Trade Practices Tribunal; Ex p St George County Council [1974] HCA 7

High Court of Australia Barwick C.J. McTiernan, Menzies, Gibbs and Stephen JJ. Re Trade Practices Tribunal; Ex p St George County Council [1974] HCA 7

ORDER Rule nisi for prohibition made absolute. Respondent Commissioner to pay prosecutor's costs.

Cur. adv. vult.

The following written judgments were delivered:—

1974, March 4 Barwick C.J.

The applicant for a writ of prohibition to restrain proceedings pending before the Trade Practices Tribunal is a county council created and incorporated under the provisions of Pt XXIX of the Local Government Act 1919 N.S.W. (as amended) (the Act). The ground on which the writ is sought is that the applicant is not a trading corporation formed within the limits of the Commonwealth within the definition of corporation in s. 5 of the Restrictive Trade Practices Act 1971 (No. 138 of 1971) and therefore not subject to the jurisdiction of the Trade Practices Tribunal set up by s. 7 of that Act. The Court gave leave to the States of New South Wales, Victoria and Queensland to intervene in the argument before the Court upon the footing that a decision whether or not the applicant is such a corporation would bear on the meaning of the power of the Parliament under par. (xx.) of s. 51 of the Constitution, in so far as it rested on the inclusion of "trading corporations formed within the limits of the Commonwealth" in that paragraph.

Corporation is defined in s. 5 as meaning a corporation that is a foreign corporation, a trading corporation formed within the limits of the Commonwealth or a financial corporation so formed.

Under s. 561 of the Act the Governor by proclamation may constitute a county district composed of the whole or part of a group of municipalities or shires, or of both or of a combination of each. In proclaiming such a county district it is sufficient for the proclamation to say that it is constituted for local government purposes without indicating the particular purposes of its formation.