Marks v. Commonwealth1
| Author | J. B. Thynne |
| Date | 01 June 1965 |
| DOI | 10.1177/0067205X6500100212 |
| Published date | 01 June 1965 |
| Subject Matter | Article |
338
Federal Law Review [VOLUME 1
virtue
of
which they fall within the category
of
interstate trade
or
com-
merce?
It
is difficult
to
see how acertain answer can be given
to
this
question on apurely logical basis.
It
may be
that
asolution may be found along the lines adopted in
Mansell
v.
Beck
26
-that
is, to hold
that
restrictive practices, because,
for example,
of
their
'unlawful'
or
'destructive'
nature, do
not
form
a
part
of
the concept
of
interstate trade and therefore laws prohibiting
such practices do not take as the basis
of
their operation anything con-
nected with such trade. But is it any restrictive practice or
only'
unreason-
able'
practices that may be so treated?
It
would seem, therefore, that the operation
of
section 92
on
restrictive
trade practices legislation needs more examination than is suggested by
the confident
but
unsupported dictum
of
Starke J. in Home Benefits
Pty Limited
v.
Crafter
that-
It
is, however, no contravention
of
the freedom so prescribed to
legislate for the repression
of
destructive monopolies
or
illegitimate
means
of
trading . .
.27
T.
J.
HIGGINS
MARKS v.
COMMONWEALTH'
Defence forces-Officers commission-Right
to
resign-Defence
Act
1903-1956
(Cth), section
17(1).
The plaintiff claimed
that
he, as
an
officer
of
the Australian Army,
had
on
17
April
1963
tendered the resignation
of
his Commission, giving
three months notice
and
further
that
on the expiry
of
three months
from
17
April
1963
he was entitled
to
have his resignation accepted by
the Governor-General,
but
that it
had
not
been accepted. He sought
two
declarations-
(a)
that
his resignation
'should'
have been accepted
by
the
Governor-General
on
or
before the expiration
of
three months
and he was then 'bound '
to
accept it;
and
(b)
that
in law the plaintiff
had
ceased
to
be acommissioned officer
on
17
July
1963.
The Commonwealth demurred to the statement
of
claim
on
the
grounds
that-
(a)
that
the Governor-General was not bound
to
accept the resigna-
tion
of
an
officer either
at
or
before the expiry
of
the three
months from the date when the resignation was tendered
or
at
all;
and
26
(]956)
95
C.L.R.
550.
27
(1939)
61
C.L.R. 701,
717.
1(1964)
38
A.L.I.R.
140.
High Court
of
Australia; Kitto, Taylor, Menzies,Windeyer
and
Owen JJ. This decision was applied in
0'
Day
v.
Commonwealth (1964)
38
A.L.J.R.
159
which dealt with the resignation
of
anaval commission.
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