HC Sleigh Ltd v South Australia [1977] HCA 2

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs and Murphy JJ. HC Sleigh Ltd v South Australia [1977] HCA 2

ORDER Demurrer allowed with costs. Action dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1977, Feb. 1 Barwick C.J.

The Court has now decided to maintain the decision of Dennis Hotels Pty. Ltd. v. Victoria [91] , for what, upon its facts and relevant legislation, it decides. Consequently, legislation operating in indistinguishable terms will be supported as not imposing a duty of excise. This course does not commit the Court to accept the reasoning in that case. The result, as I think, tends to put a premium on drafting ingenuity and is a disregard of substance. Further, the practical distinction between a licence fee rated on the sales of a former period and such a fee rated on the sales of the licensed period, vis-à-vis the effect of the imposition of the fee upon the movement of goods into consumption, is difficult to see, particularly in the case of a continuing business operating over a period of years. However, I am unable to find any substantially distinguishing feature of the Business Franchise (Petroleum) Act, 1974-1975 S.A. ("the Act"). I therefore agree that this case is governed by the decision in Dickenson's Arcade Pty. Ltd. v. Tasmania [92] , and that the licence fee imposed by that Act does not constitute an excise within the meaning of s. 90 of the Constitution.

1. (1960) 104 C.L.R. 529. 2. (1974) 130 C.L.R. 177.

I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I am in substantial agreement with the reasons he expresses for his conclusions; first, that the licence fee under challenge in the case is not an excise; second, that the refinery exchange arrangements set out in the statement of claim, the sales referred to in pars 24 and 25 of the statement of claim, and the transactions described in pars 28, 29 and 30 of the statement of claim do not form part of interstate trade; third, that the prohibition in the Act of carrying on the business of selling without a licence infringes s. 92 of the Constitution; fourth, that the penalty imposed upon carrying on such a business without a licence infringes s. 92; fifth, that, by reason of the Acts Interpretation Act, 1915 S.A. as amended, the relevant parts of the Act may be given a distributive operation so that they remain valid in so far as they relate to carrying on the business of selling petroleum products otherwise than in the course of interstate trade.