Bourke v State Bank of New South Wales [1990] HCA 29

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Bourke v State Bank of New South Wales [1990] HCA 29

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 28 Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

There has been removed into this Court an appeal pending in the Full Court of the Federal Court of Australia against a decision of Wilcox J. concerning the application to the State Bank of New South Wales ("the Bank") of ss. 52 and 52A of the Trade Practices Act 1974 Cth ("the Act").

On 2 September 1988 the appellants filed a statement of claim against the Bank alleging, amongst other matters, breaches of ss. 52 and 52A of the Act. The Bank filed a notice of motion seeking orders striking out the paragraphs in the statement of claim which related to those allegations, on the ground that they disclosed no reasonable cause of action. The basis of the Bank's argument is that, to the extent that they purport to apply to the Bank, ss. 52 and 52A of the Act exceed the legislative power of the Commonwealth and are constitutionally invalid.

The Bank is a body corporate established pursuant to the State Bank Act 1981 N.S.W.. Its principal business is that of banking. The matter has proceeded upon the basis that this business is conducted principally but not solely within the State of New South Wales. Moreover, it has also been assumed that the transactions the subject of the present proceedings took place wholly within New South Wales.

The substantive sub-sections of ss. 52 and 52A are expressed in these terms:

21.(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.