Coastace Pty Ltd v New South Wales [1989] HCA 37

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Coastace Pty Ltd v New South Wales [1989] HCA 37

ORDER Answer the questions in the stated case as follows:

1. Whether on the facts contained in pars 2 to 7, the provisions of ss. 11(1)(c), 12(1)(a) and 28A of the Business Franchise Licences (Tobacco) Act 1975 N.S.W. are invalid as imposing a duty or duties of excise within the meaning of s. 90 of the Commonwealth Constitution in so far as they impose any such duty on the plaintiffs or either of them.

Answer: No.

2. Whether on the facts contained in pars 2 and 9 to 13, the provisions of ss. 36(1), 41(1), 43 and 47(1) of the Business Franchise Licences (Tobacco) Act 1987 N.S.W. are invalid as imposing a duty or duties of excise within the meaning of s. 90 of the Commonwealth Constitution in so far as they impose any such duty on the plaintiffs or either of them.

Answer: No.

3. By whom should the costs of this reference be paid.

Answer: The plaintiffs to pay the defendants' costs of the reference.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 24 Mason C.J. and Deane J.

This case stated pursuant to s. 18 of the Judiciary Act 1903 Cth raises questions similar to those raised by Philip Morris Ltd. v. Commissioner of Business Franchises [1] which was heard at the same time.

1. Ante, p. 399.

The facts may be briefly stated. The first plaintiff is a company incorporated in Queensland, of which the second plaintiff is a director. During the period from 28 January 1987 to 26 June 1987 one or other of the plaintiffs carried on in New South Wales the business of "tobacco wholesaling" within the meaning of that term in s. 3(1) of the Business Franchise Licences (Tobacco) Act 1975 N.S.W. ("the 1975 Act").

Section 10(1) of the 1975 Act stated as follows: