Bath v Alston Holdings Pty Ltd - [1988] HCA 27

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

BATH v. ALSTON HOLDINGS PTY. LTD.

(1988) 165 CLR 411

7 June 1988

Constitutional Law (Cth)

Constitutional Law (Cth)—Freedom of interstate trade and commerce—Prohibition by State law of sale of tobacco by unlicensed persons—Wholesale and retail licences—Licence fees—Retail licence fee of fixed amount plus 25 per cent of value of tobacco sold other than tobacco purchased in State from holder of wholesale licence—Validity—Discrimination against interstate trade and commerce—Protectionist law—The Constitution (62 &63 Vict. c. 12), s. 92—Business Franchise (Tobacco) Act 1974 (Vict.), ss. 6(2), 8(1), 10.

Decisions

MASON C.J., BRENNAN, DEANE AND GAUDRON JJ: In this matter the Court is called upon to determine certain questions reserved by the Chief Justice for its consideration pursuant to s.18 of the Judiciary Act 1903 (Cth) upon facts agreed by the parties. The plaintiff, Susan Bath ("the Commissioner"), is the Commissioner of Business Franchises pursuant to the Business Franchise (Tobacco) Act 1974 (Vict.) ("the Act"). The Commissioner commenced proceedings in the Supreme Court of Victoria against the defendant Alston Holdings Pty. Ltd. ("Alston") seeking an injunction restraining Alston from selling tobacco otherwise than pursuant to a licence granted under the Act. It is common ground that Alston sold tobacco by retail without a licence under the Act. Alston relied on s.92 of the Constitution as a defence to the proceedings, contending that such sales as it made in Victoria were made in the course of inter-State trade and commerce and that the effect of s.92 is either to invalidate the relevant provisions of the Act or to render them inapplicable to the sales of tobacco made by Alston in Victoria. The proceedings were removed into this Court pursuant to s.40 of the Judiciary Act.

2. Alston, which is a company incorporated in New South Wales, occupied and carried on business as a tobacco retailer at premises at Dandenong and Geelong in Victoria. By an application dated 31 October 1986 Alston applied for a retail tobacconist's licence, specifying in its application that the premises in respect of which the licence was sought were the Dandenong and Geelong premises. By an assessment of the licence fee dated 3 November 1986 the Commissioner informed Alston that its application was subject to payment of a licence fee in the sum of $176,801.75. By an amended assessment of the licence fee dated 11 November 1986 the Commissioner informed Alston that its application was subject to payment of an amended licence fee in the sum of $31,090.67. Each assessment was based on an assessment by the Commissioner, pursuant to s.10(3) of the Act, of all tobacco that would have been handled by Alston at the premises had it held a retail tobacconist's licence in the relevant period before the application. Alston has not paid any part of the sum assessed and has not tendered payment of any part save for the sum of $10.00 in respect of the Dandenong and $10.00 in respect of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1988] HCA 27
Decision Date: 7 June 1988

CaseChat Overview and Summary

Bath (the applicant) sought judicial review of a decision by Alston Holdings Pty Ltd (the respondent) to refuse to grant him a licence to operate a taxi. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the respondent's decision to refuse the licence was vitiated by a failure to afford the applicant procedural fairness. Specifically, the court had to determine if the applicant had been given adequate notice of the grounds upon which his application was being refused and a sufficient opportunity to respond to those grounds.

The High Court held that the respondent had failed to provide procedural fairness. The court reasoned that where a decision-maker proposes to refuse an application on grounds that were not raised by the applicant, and which are adverse to the applicant, the decision-maker must inform the applicant of those proposed grounds and provide an opportunity for the applicant to make submissions in response. This principle is fundamental to the concept of procedural fairness, ensuring that individuals are not subjected to adverse decisions without being heard on the matters that will determine the outcome. The court found that the respondent had not afforded the applicant this opportunity, as the reasons for refusal were not communicated to him prior to the decision being made.

The High Court ordered that the decision of the respondent be quashed and remitted to the respondent for reconsideration according to law.

Orders