Trade Practices Commission (Cth) v Tooth & Co Ltd [1979] HCA 47

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy and Aickin JJ. Trade Practices Commission (Cth) v Tooth & Co Ltd [1979] HCA 47

ORDER Appeal allowed with costs. Order that the order of the Full Court of the Federal Court of Australia in so far as it answers (d) of the special case dated 24th November 1977 as follows:

(d) "Section 47 (9) (a) is invalid in so far as it uses the words "or renew" " be set aside and in lieu thereof, question (d) be answered as follows:

(d) "Yes".

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 28 Barwick C.J.

One of the questions asked of the Full Court of the Federal Court of Australia by a case stated to that Court by its Chief Judge is now before this Court on appeal from the Federal Court. The question is: "(d) whether s. 47 (9) (a) of the said Act or any part thereof, is a valid exercise of the legislative power of the Commonwealth." The answer of the Full Court, from which this appeal is brought, was: "(d) Section 47 (9) (a) is invalid in so far as it uses the words "or renew"."

The question for decision in this appeal is therefore whether s. 47 (9) (a) of the Trade Practices Act, 1974 Cth, as amended ("the Act"), is a law with respect to the acquisition of property within the meaning of s. 51 (xxxi.) of the Australian Constitution in so far as s. 47 (9) (a) proscribes the refusal by the owner of property to renew a lease because the other party to the lease has taken a specified attitude with respect to the selection of goods for sale or disposal by that party. It is conceded that if the section in this respect is such a law, it does not provide just terms and, consequently, is invalid.

For the sake of completeness, I reproduce the relevant terms of s. 47 (9) (a):

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(9) A corporation also engages in the practice of exclusive dealing if the corporation refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate—