Bath v Alston Holdings Pty Ltd [1988] HCA 27

Bath v Alston Holdings Pty Ltd [1988] HCA 27

Sections 10(1)(c) and 10(1)(d) of the Act are invalid to the extent that, by excluding tobacco purchased in Victoria from licensed wholesalers from the calculation of the ad valorem (25%) licence fee but not tobacco purchased interstate, the Act imposes a discriminatory burden of a protectionist kind on interstate trade contrary to s. 92 of the Constitution. The remaining flat fee component is not invalid. The rest of the challenged provisions are not found invalid and it is unnecessary to answer the second reserved question.

Jurisdiction
Australia
Procedural Posture
Constitutional Challenge / Questions Reserved for the Full High Court After Removal From the Supreme Court of Victoria
Outcome
Partially invalid; s. 10(1)(c) and 10(1)(d) are invalid to the extent specified; the rest not answered; costs to plaintiff; matter remitted to Supreme Court of Victoria.
Legal Topics
['section 92 Freedom of Interstate Trade' 'franchise Fee' 'licensing Legislation' 'discriminatory Taxation' 'protectionism']
['constitutional Law' 'taxation Law'] ['section 92 Freedom of Interstate Trade' 'franchise Fee' 'licensing Legislation' 'discriminatory Taxation' 'protectionism']

Case Brief

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Procedural Posture

Constitutional Challenge / Questions Reserved for the Full High Court After Removal From the Supreme Court of Victoria

Legal Issues

  1. 1 ['Whether sections 6(2), 8(1), 9(1)(a), 9(2), 9(3), 10(1)(c), 10(1)(d), 10(2), 10(3), and 19A(1)(d) of the Business Franchise (Tobacco) Act 1974 (Vic) are invalid as contrary to s. 92 of the Constitution' 'Whether said provisions are inapplicable to sales of tobacco products by the defendant in Victoria due to s. 92']

Ratio Decidendi

Sections 10(1)(c) and 10(1)(d) of the Act are invalid to the extent that, by excluding tobacco purchased in Victoria from licensed wholesalers from the calculation of the ad valorem (25%) licence fee but not tobacco purchased interstate, the Act imposes a discriminatory burden of a protectionist kind on interstate trade contrary to s. 92 of the Constitution. The remaining flat fee component is not invalid. The rest of the challenged provisions are not found invalid and it is unnecessary to answer the second reserved question.

Court Disposition

Partially invalid; s. 10(1)(c) and 10(1)(d) are invalid to the extent specified; the rest not answered; costs to plaintiff; matter remitted to Supreme Court of Victoria.

Orders

  • ['Answer reserved questions as stated: Section 10(1)(c) and 10(1)(d) invalid to discriminatory extent; otherwise not answered.' 'Costs of High Court proceedings to be paid by the plaintiff.' 'Matter remitted to the Supreme Court of Victoria for further orders per this judgment.']