High Court of Australia
JAGODA
THE STATE OF VICTORIA
JUDGMENT (Oral)
Heard: 17 February 1987 Delivered: 20 February 1987
DAWSON J.
JAGODA
THE STATE OF VICTORIA
In this matter the defendant by summons seeks an order that the statement of claim be struck out on the ground that it discloses no reasonable cause of action or is embarrassing. Other relief, to which it is unnecessary to refer specifically, is also claimed. There is a cross-summons by the plaintiff seeking an order directing the defendant to demur to the statement of claim or, alternatively, a case stated for the consideration of the
Full Court. Other relief is elatmed by the plaintiff to
which it is similarly unnecessary to refer specifically.
The action is one in which the plaintiff claims a declaration that the defendant has no entitlement to recover from the plaintiff licence fees under the Business Franchise (Tobacco) Act 1974 (Vict.) in respect of the sale of tobacco products, a declaration that the plaintiff was not engaged in intrastate trade within the meaning of the Act and was engaged in trade or commerce among the States within the meaning of s.92 of the Constitution and a declaration that
the provisions of s.6(1) of the Act, in so far as they
provide for the licensing of a wholesaler who is carrying—on trade and commerce among the States, are contrary to the
provisions of s.92 and are invalid.
Section 6(1) of the Business Franchise (Tobacco) Act
prohibits tobacco wholesaling without a licence. "Tobacco wholesaling" is defined in s.2(1) as meaning the business of selling tobacco in the course of intrastate trade for the purpose of resale. Under s.2(5) the reference to "intrastate trade" is a reference to trade carried on in Victoria which is not trade or commerce among the States within the meaning of s.92 of the Constitution. Licence fees are payable pursuant to s.10. If the Commissioner of Business Franchises has reason to believe that a person is carrying on a business of tobacco wholesaling without having made an application for the appropriate licence under the Act, the Commissioner may make an assessment of the amount that in his judgment should have been paid had the application been made and that person shall be liable to pay
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