Bolton v Madsen [1963] HCA 16

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies, Windeyer and Owen JJ. Bolton v Madsen [1963] HCA 16

ORDER Appeals dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 6 Dixon C.J., Kitto, Taylor, Menzies, Windeyer and Owen JJ.

The substance of the principal defence raised unsuccessfully by the appellants to charges of committing and aiding and abetting the commission of an offence under s. 49 of The State Transport Act of 1960 Q. (hereinafter called "the Act")—viz. the appellant Turner's use on a Queensland road of a vehicle to carry goods without a permit under s. 39 of the Act—was that the only reason for Turner's not having the necessary permit to use the vehicle as he did (to carry his wool from Goondibilla Station, Goondiwindi, to Dalgetys' wool store, Brisbane, for sale) was that the fee of £20 4s. 2d. demanded from him for the permit—the maximum fee—was a duty of excise which, upon constitutional grounds (The Constitution, s. 90), he refused and was justified in refusing to pay. Turner was charged as principal and the other appellants as accessories with offences under s. 49 of the Act. The magistrate, who heard the charges together, having rejected the foregoing defence and a further defence that The Transport Laws Validation Act of 1962 Q. had failed to validate the Act, found the offences proved and convicted all the appellants. Turner was fined £20 and, pursuant to s. 52 of the Act, was also ordered to pay the permit fee determined by the Commissioner for Transport, viz. £40 8s. 4d., being twice the maximum fee payable under s. 44. The other appellants were each fined £20. The appellants were also ordered to pay costs. Appeals brought to this Court as of right were heard together. For the appellants the points already referred to were argued and, for Turner, it was further argued that the fee of £40 8s. 4d. which he had been ordered to pay was itself a duty of excise. Although reference to ss. 2, 5, 12, 39, 41, 44, 49, 51 and 52 of the Act and to ss. 3 and 4 of The Transport Laws Validation Act of 1962 is necessary, it is not proposed to set them out in this judgment.