Ha v New South Wales [1996] HCA 17

High Court of Australia Kirby J Ha v New South Wales (S 96/009) [1996] HCA 17

Kirby J

This is an application in which both parties have urged upon the court that enough is enough.

For the applicants it is said that a statement of claim should be struck out on the basis that it represents an attempted challenge to a settled and repeated holding of the court with which it should not be vexed again, at least so soon after its last re-statement. Enough is enough.

For the respondents it is said that the taxes imposed on them represent a marked increase in the taxes previously held by the court not to be a duty of excise, reserved by s 90 of the Constitution exclusively to the Parliament of the Commonwealth. What began as a rate of 0.4% and 6% respectively in Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 and Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529, became 25% to 30% in Philip Morris Ltd v Comr of Business Franchises (Vic) (1989) 167 CLR 399, 40% in Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561; 27 ATR 1, and has now escalated to 75% in the case before the court. It has since been increased by New South Wales legislation in a way that does not affect the respondents (who have ceased business) to 100%. What were sanctioned by earlier decisions as taxes are now clearly revealed as duties of excise. This court should now say so. Enough is enough.

Factual background

The facts can be stated shortly. The State of New South Wales and other defendants, as applicants on this summons, move the court for an order that a statement of claim, filed in the original jurisdiction of the court, should be struck out on the ground that no reasonable cause of action has been disclosed. For the purposes of the application, the facts to be accepted are these: At the times referred to in the statement of claim Ms Ngo Ngo Ha and Ms Sokhieng Lim, the plaintiffs, who are the respondents to this summons, carried on business respectively in Cabramatta and Hurstville, near Sydney in the State of New South Wales. They operated duty-free stores. Affidavit evidence shows that the respondents went out of business at the end of 1994 and early 1995 respectively. It is claimed, on the part of the applicants, that Ms Ha and Ms Lim have paid no franchise fees and no taxes on tobacco sales made from their stores.