Salmar Holdings Pty Ltd v. Hornsby Shire Council1
| Author | L. A. Warnick |
| Published date | 01 March 1972 |
| Date | 01 March 1972 |
| DOI | http://doi.org/10.1177/0067205X7200500109 |
| Subject Matter | Article |
be accepted
that
even amanufacturing
or
mining corporation
can
in
one of its aspects be atrading company
(that
is, \vhen
it
sells
or
attempts
to sell its manufactures
or
ores)
then
the
Commonwealth could
in
...
directly control, for environmental purposes, manufacturing or mining
activities
of
companies by la\vs acting
on
the sale
or
attempted sale
of
manufactures
and
ores.
And
in
all probability,
the
Commonwealth
now
has
power
to
regulate interest rates
on
loans
and
borrowings
by
com-
panies,
and
power to regulate every
contract
of
sale, of supply
or
of
services entered into in Australia except bet\veen two
natural
persons. In
short, the decision
in
the instant appeals seems to have left the
Common-
wealth with power
to
regulate uniformly
throughout
the Common\vealth,
many matters which before the decision
had
assumedly been outside
its power
and
which for
many
years
had
called for thorough
and
syste-
Inatic regulation
on
anational scale.
1972] Case
Notes
143
P.
A.
McN~\1ARA*
SALMAR
HOLDINGS
PTY LTD v.
HORNSBY
SHIRE COUKCILl
Declaratory judgment -
Equity
Act,
1901-1965
(N.S.W.)
section
10
-Statutory appeal procedures under
Local
Government
Act,
1919-
1971
(N.S.W.) -Jurisdiction
to
av/ard declaration in lieu thereof.
Freed
by section 15 of the
Law
Reform
(Miscellaneous Provisions)
Act, 1965 (N.S.W.)2 from the former circumscription of its availabilitYt
the declaratory
judgment
has
of
recent years
come
into vogue
in
New
South Wales as a
means
whereby to ascertain
the
rights
of
subjects;
and
as the field in \vhich rights of property,
in
particular,
are
most
often
at
issue, the local government
area
has
provided the context for alarge
proportion of the attempts thus to invoke the equitable jurisdiction of
the Supreme Court.
It
was inevitable, therefore,
that
the province
of
the declaratory judgment should be
found
to overlap those
of
the
statutory appeal procedures set
up
under
the
Local
Government Act,
1919-1971 (N.S.\Y.).
The
result has
been
aterritorial dispute
which
has, however,
now
received its
apparent
quietus
at
the
hands
of
the
New
South Wales
Court
of Appeal
in
Salmar Holdings
Pry
Ltd
v.
Hornsby Shire Council.
*LL.B.
(A.N.U.);
Editor, 1971.
1[1971] 1N.S.vV.R. 192.
New
South \Vales
Court
of
Appeal; 1\fason,
Jacobs and !vloffitt
JI.A.
Hornsby
Shire Council unsuccessfully appealed
to
the
High Court.
The
appeal
(not
yet reported)
dealt
only \vith the meaning
of
"trade" in s. 309
of
the
Local
Government
Act, 1919-1971 (N.S.\V.);
there
was
no
discussion
of
the
jurisdictional issue discussed
in
this note.
2Amending the
Equity
Act, 1901-1965 by
the
ins~rtion
of
a
new
$.
10.
Of
particular relevance in
the
present case
are
sub-ss
10(1)
and
lO(2)(b)(vii).
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