Ha v New South Wales [1996] HCA 17

Ha v New South Wales [1996] HCA 17

The summons to strike out was dismissed because the constitutional challenge was not manifestly hopeless or clearly bound to fail. Although prior High Court authority strongly supported the applicants, the respondents' argument that the greatly increased 75% tobacco fee altered the characterisation of the impost as a possible duty of excise was serious and arguable, and should not be foreclosed on a summary application before a single justice.

Jurisdiction
Australia
Procedural Posture
Original Jurisdiction Constitutional Challenge to State Tobacco Licensing Taxes / Application by Summons to Strike Out the Plaintiffs' Statement of Claim for Disclosing No Reasonable Cause of Action
Outcome
Defendants' summons to strike out dismissed with costs; plaintiffs' summons for reference to the Full Court dismissed; draft stated case referred to the Registrar's list.
Legal Topics
['duties of Excise Under S 90 of the Constitution' 'business Franchise Licences for Tobacco' 'summary Dismissal and Strike Out of Pleadings' 'stare Decisis in Constitutional Cases']
['constitutional Law' 'taxation and Revenue' 'civil Procedure'] ['duties of Excise Under S 90 of the Constitution' 'business Franchise Licences for Tobacco' 'summary Dismissal and Strike Out of Pleadings' 'stare Decisis in Constitutional Cases']

Case Brief

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Procedural Posture

Original Jurisdiction Constitutional Challenge to State Tobacco Licensing Taxes / Application by Summons to Strike Out the Plaintiffs' Statement of Claim for Disclosing No Reasonable Cause of Action

Legal Issues

  1. 1 ["Whether the plaintiffs' statement of claim challenging provisions of the Business Franchise Licences (Tobacco) Act 1987 (NSW) as imposing duties of excise disclosed a reasonable cause of action." 'Whether the constitutional challenge was manifestly hopeless or clearly bound to fail in light of prior High Court authorities on tobacco and alcohol franchise fees.' 'Whether the increase in the New South Wales fee to 75% of the value of tobacco sold made the characterisation of the impost as a forbidden duty of excise arguable.']

Ratio Decidendi

The summons to strike out was dismissed because the constitutional challenge was not manifestly hopeless or clearly bound to fail. Although prior High Court authority strongly supported the applicants, the respondents' argument that the greatly increased 75% tobacco fee altered the characterisation of the impost as a possible duty of excise was serious and arguable, and should not be foreclosed on a summary application before a single justice.

Court Disposition

Defendants' summons to strike out dismissed with costs; plaintiffs' summons for reference to the Full Court dismissed; draft stated case referred to the Registrar's list.

Orders

  • ["The defendants' summons to strike out the plaintiffs' statement of claim is dismissed with costs." "The plaintiffs' summons for reference of the matter to the Full Court is dismissed." "The plaintiffs' draft stated case is referred to the Registrar's list to be re-listed after consideration by the parties."...