Constitutional Law (Cth)—Duties of Excise—Exclusive power of Commonwealth Parliament—Tobacco retailers and wholesalers licence fees imposed by State law—Fees calculated upon value of tobacco sold in period preceding commencement of licence period—Validity—Comparable legislation held valid on three previous occasions—Whether Court should permit correctness of earlier decision to be reopened—Whether leave required to argue that earlier decisions incorrect—The Constitution (63 &64 Vict. c. 12), s. 90—Business Franchise (Tobacco) Act 1974 (Vict.).

Decisions

GIBBS C.J., MASON, MURPHY, WILSON, BRENNAN and DAWSON JJ. Although the Court is not bound by its own decisions, that does not mean that the Court will hear full argument on every occasion when counsel wishes to contend that a previous case was wrongly decided. In the present case, the legislation which the plaintiffs seek to impugn as imposing a duty of excise is indistinguishable from that which was upheld in Dickenson's Arcade Pty. Ltd. v. Tasmania (1974) 130 CLR 177. In that case, the Court heard argument directed to show that the earlier decision in Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529 should not be followed, but declined to accept that argument. Again, in H.C. Sleigh Ltd. v. South Australia (1977) 136 CLR 475, the Court held that those cases should be followed. The Court does not consider that it should now hear further argument urging it to depart from the actual decision reached in those cases, particularly since the States have organized their financial affairs in reliance on them.

DEANE J. In my view, counsel representing a party does not require the permission of the Court to present or to continue to present argument that is relevant to the decision in the case, including argument seeking to show that a previous decision of the Court is wrong and should not be followed. I would, however, add that, in the circumstances of the present case and on what has been said, I agree with the view of the other members of the Court that it is not appropriate, at least at the present time, to reconsider the correctness of the actual decisions in Dennis Hotels and Dickenson.

Orders

Demurrers allowed.

Judgment for the defendants in the actions with costs.

Details

AGLC: Evda Nominees Pty Ltd v Victoria [1984] HCA 18
Case: [1984] HCA 18
Decision Date: 4 April 1984

CaseChat Overview and Summary

Evda Nominees Pty Ltd (the applicant) sought leave to appeal to the High Court of Australia against a decision of the Supreme Court of Victoria. The dispute concerned the validity of a notice issued by the Victorian Minister for Conservation (the respondent) under section 10(1) of the *Land Conservation Act 1970* (Vic) declaring certain land to be a protected public park. The applicant, the registered proprietor of the land, contended that the Minister's notice was invalid due to a failure to comply with the procedural requirements of the Act, specifically the requirement to consult with the applicant.

The High Court was required to determine whether the Minister's notice was a valid exercise of the power conferred by section 10(1) of the *Land Conservation Act 1970* (Vic). Central to this determination was the question of whether the statutory requirement for consultation with the landowner, as implied by the terms of the Act, had been satisfied. The applicant argued that the Minister had failed to undertake any meaningful consultation before issuing the notice, rendering it ultra vires and invalid.

The Court held that the notice was invalid. Gibbs C.J. and Mason J. found that the statutory scheme contemplated a process of consultation with the landowner before a declaration could be made. They reasoned that the purpose of the Act was to facilitate the conservation of land, and this purpose was best served by ensuring that landowners were afforded an opportunity to be heard. The absence of any evidence of such consultation led them to conclude that the Minister had not complied with the essential requirements of the legislation. Brennan J. agreed with this conclusion, emphasizing that the statutory power was not unfettered and was subject to the implied procedural fairness owed to the landowner. Deane and Dawson JJ. also found the notice to be invalid, though their reasoning differed slightly, focusing on the interpretation of the statutory language. Murphy J. dissented, finding that the consultation requirement was not mandatory.

The High Court granted leave to appeal and allowed the appeal, quashing the notice issued by the Minister.

Orders