State Superannuation Board v Trade Practices Commission [1982] HCA 72

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson and Deane JJ. State Superannuation Board v Trade Practices Commission [1982] HCA 72

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 14 Gibbs C.J. and Wilson J.

The history of this case and the facts that are relevant to its determination are set out in the judgment of the majority of the Court. We can therefore address the issues immediately.

The primary question is whether the appellant ("the Board") is a financial corporation within the meaning of s. 51(xx) of the Constitution and thus subject to the Trade Practices Act 1974 Cth, as amended; see the definitions of corporation and financial corporation in s. 4(1) of that Act.

The words trading and financial in s. 51(xx) are not terms of art, carrying some specialized legal meaning. They are ordinary words intended to identify particular types of corporation. The concept of "trading corporation" has been the subject of discussion in two earlier decisions of this Court: Reg. v. Trade Practices Tribunal; Ex parte St. George County Council [1] ("St. George"); Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [2] (Adamson) . The judgments in those cases reflect a difference of judicial opinion as to the relative importance attaching to the criteria for determining whether or not a corporation is a trading corporation for constitutional purposes. The concept of "financial corporation" has not hitherto required the consideration of the Court. Nevertheless, in our opinion, the considerations which are material to the elucidation of the meaning and application of the term "trading corporation" are likewise material to the identification of a financial corporation, after making due allowance, of course, for the difference in function between them. The decisions to which we have referred therefore afford valuable guidance in the present case.