Dennis Hotels Pty Ltd v Victoria [1960] HCA 10

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. Dennis Hotels Pty Ltd v Victoria [1960] HCA 10

ORDER Order that the demurrer to the statement of claim be allowed except as to pars. 8, 9 and 14 thereof which relate to temporary victuallers' licences in pursuance of s. 19 (1) (b) of the Licensing Acts and except as to the allegations contained in the remaining paragraphs of the statement of claim so far as they relate to such temporary victuallers' licences and to s. 19 (1) (b) and that the demurrer be overruled as to the paragraphs and allegation so excepted and in so far as excepted. Order that the plaintiff pay the costs of the demurrer.

Cur. adv. vult.

The following written judgments were delivered:—

1960, Feb. 26 Dixon C.J.

In Parton v. Milk Board (Vict.) [3] I had occasion to state why in my opinion the character of the levy dealt with in Hartley v. Walsh [4] showed that it could not be a duty of excise. I said: "Not only was the imposition upon the proprietor of the packing shed and one measured, at least as to the maximum, by the fruit handled, but the fruit was the fruit of the previous year. This appears to me to place the imposition more in the category of a licence fee in respect of a business calculated on past business done." [1] . Had I stopped there, I would have had nothing to repent. But I did not stop there; I went on with an illustration: "something like the licence fee of a licensed victualler calculated on the amount expended by him in the previous year in purchasing liquor, which I should not regard as an excise." [1] . No doubt I had the system obtaining in Victoria in mind. But an examination of the system has convinced me that the illustration was entirely wrong.

1. (1949) 80 C.L.R. 229. 2. (1937) 57 C.L.R. 372. 3. (1949) 80 C.L.R., at p. 263. 4. (1949) 80 C.L.R., at p. 263.