Browns Transport Pty Ltd v Kropp; Downs Transport Pty Ltd v Kropp [1958] HCA 49

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor and Windeyer JJ. Browns Transport Pty Ltd v Kropp; Downs Transport Pty Ltd v Kropp [1958] HCA 49

ORDER Question in the special case answered No. The plaintiffs to pay the cost of the special case.

The Court delivered the following written judgment:—

Nov. 14 Dixon C.J., McTiernan, Fullagar, Kitto, Taylor and Windeyer JJ.

Two actions were commenced in the Supreme Court of Queensland on 13th January 1958. The plaintiff in the one case is Browns Transport Pty. Ltd., a company incorporated in Queensland, and in the other is Downs Transport Pty. Ltd., which is also a company incorporated in Queensland. The defendant in each case is the Commissioner for Transport appointed under The State Transport Facilities Acts 1946 to 1955 Q.. In each case the plaintiff claimed relief in respect of the cancellation by the defendant of a licence, which had been issued to it under the Queensland statute, to carry goods by road for reward. The statement of claim in each case contained an allegation (the relevance of which is not obvious) that one of the conditions of the licence had the effect of imposing a duty or excise and was therefore void by reason of s. 90 of the Constitution. To this allegation the defendant demurred. Subsequently the Attorney-General of the State of Queensland applied to this Court for an order under s. 40 of the Judiciary Act 1903-1955 Cth., and on 21st April 1958 this Court made an order in each case "that so much of the cause be removed into the High Court of Australia as involves the question whether the levy made by or under condition 17 of the license issued under the provisions of The State Transport Facilities Acts 1946 to 1955 to the plaintiff amounts to an attempt to impose a duty of excise contrary to s. 90 of the Constitution ". Later the parties agreed on a special case to be stated in both cases for the opinion of the Full Court of this Court. It is this case stated that is now before this Court. The question asked by the case is "whether a levy made by or under condition 17 amounts to an attempt to impose a duty of excise contrary to the provisions of the Commonwealth Constitution".