LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31

ORDER Application for leave to appeal to Her Majesty in Council dismissed as incompetent. Order that the applicant pay the respondent's taxed costs of the application. No order as to the costs reserved on 12 November 1982.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 6 Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ.

Before the Court is an application for leave to appeal to Her Majesty in Council from a judgment given in the Supreme Court of New South Wales by Rogers J. in favour of the defendant. The application, which was made to the Supreme Court by the plaintiff, has been removed into this Court by order made under s. 40 of the Judiciary Act. The question which now falls for determination is whether the decision of Rogers J. was made in the exercise of federal jurisdiction. If it was so made, it is not subject to appeal to Her Majesty in Council: s. 39(2)(a) of the Judiciary Act. The decision will have been made in the exercise of federal jurisdiction if the proceeding before Rogers J. was a matter "arising under any laws made by the Parliament" within s. 76(ii) of the Constitution: see s. 39(2) of the Judiciary Act.

The statement of claim alleged that the plaintiff was the holder of licences granted under the Customs (Import Licensing) Regulations ("the Regulations") to import into Australia during the quota years 1978 and 1979 passenger motor vehicles to a quantity not exceeding 565 units and 1,000 units respectively, and that by two agreements, made in September 1978 and March 1979, it agreed to cause its quota entitlements to 345 of the said units to be transferred to the defendant. It was alleged that it was a term and condition of the agreement made in September 1978, "that any benefit accruing after 1978 quota year and in particular in the 1979 quota year as a result of or related to the utilization of the 345 units of quota to be transferred would be held to the benefit of the plaintiff". It was further alleged that it was agreed that this term and condition would also apply to the transfer made pursuant to the agreement of March 1979. The statement of claim went on to allege further facts and proceeded to make the following claims: