Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71

High Court of Australia Barwick C.J. Gibbs, Mason, Murphy and Aickin JJ. Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71

ORDER Demurrers allowed with costs. Action dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 23 Barwick C.J.

In the resolution of these demurrers I have had the advantage of reading and considering the reasons for judgment prepared by my brother Aickin. My brother there sets out the material facts relating to the plaintiff's claim to injunctions and the relevant statutory provisions. I have come fully to agree with what my brother has written and with his conclusion that the demurrers should be overruled.

I wish to add some observations of my own which do not diverge from anything said in my brother's reasons. It has been important in my consideration of the question whether the Commonwealth is contractually bound not to use any power to do anything which may directly alter the fundament of the Airlines Agreements from 1957 onwards, namely, that only two airline operators should operate on interstate trunk airline routes, to bear in mind the significance of these agreements for the Commonwealth itself as well as their significance for the plaintiff.

At all material times, the Commonwealth has owned the business of the Australian National Airlines Commission ("the Commission") carried on under the name of Trans Australia Airlines. The Commonwealth, in relation to that airline, is constitutionally limited to authorizing the operation by the Commission of interstate and territorial air transport. Due to a reference of power by one State and succession to some routes formerly operated by Qantas Airways Ltd., a limited liability company not confined within Australia to interstate operations, the Commission has been enabled to operate some intrastate routes. But, fundamentally, interstate air transport remains its main operation.