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H C Sleigh Ltd v South Australia

H C Sleigh Ltd v South Australia

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HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

H.C. SLEIGH LTD. v. SOUTH AUSTRALIA

(1977) 136 CLR 475

1 February 1977

Constitutional Law (Cth)

Constitutional Law (Cth)—Duties of excise—Exclusive power of Commonwealth Parliament—Petroleum vendor's licence fee imposed under State law—Fee calculated on sales in period preceding licence period—Validity—The Constitution (63 &64 Vict. c. 12), s. 90—Business Franchise (Petroleum) Act, 1974-1975 (S.A.). Constitutional Law (Cth)—Freedom of interstate trade and commerce—Prohibition of sale of petroleum products without licence—Licence fee—Interstate trade and commerce—Sales made in interstate trade—Interstate trade—Standing of person engaged only in intrastate trade to impugn validity of legislation on ground of infringement of s. 92 of Constitution—Partial invalidity—Severance—Construction of statute so as not to infringe Constitution—The Constitution (63 &64 Vict. c. 12), s. 92—Business Franchise (Petroleum) Act, 1974-1975 (S.A.), ss. 11, 13, 14—Acts Interpretation Act, 1915 (S.A.), as amended, s. 22a.

Decisions

1977, Feb. 1.
The following written judgments were delivered: -
BARWICK C.J. The Court has now decided to maintain the decision of Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529 , for what, upon its facts and relevant legislation, it decides. Consequently, legislation operating in indistinguishable terms will be supported as not imposing a duty of excise. This course does not commit the Court to accept the reasoning in that case. The result, as I think, tends to put a premium on drafting ingenuity and is a disregard of substance. Further, the practical distinction between a licence fee rated on the sale of a former period and such a fee rated on the sales of the licensed period, vis-a-vis the effect of the imposition of the fee upon the movement of goods into consumption, is difficult to see, particularly in the case of a continuing business operating over a period of years. However, I am unable to find any substantially distinguishing feature of the Business Franchise (Petroleum) Act, 1974-1975 (S.A.) ("the Act"). I therefore agree that this case is governed by the decision in Dickenson's Arcade Pty. Ltd. v. Tasmania (1974) 130 CLR 177 , and that the licence fee imposed by that Act does not constitute an excise within the meaning of s. 90 of the Constitution. (at p488)

2. I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I am in substantial agreement with the reasons he expresses for his conclusions; first, that the licence fee under challenge in the case is not an excise; second, that the refinery exchange arrangements set out in the statement of claim, the sales referred to in pars 24 and 25 of the statement of claim, and the transactions described in pars 28, 29 and 30 of the statement of claim do not form part of interstate trade; third, that the prohibition in the Act of carrying on the business of selling without a licence infringes s. 92 of the Constitution; fourth, that the penalty imposed upon carrying on such a business without a licence infringes s.…

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: [1977] HCA 2
Decision Date: 1 February 1977

CaseChat Overview and Summary

The High Court of Australia considered an appeal by H C Sleigh Ltd against a decision of the Supreme Court of South Australia concerning the validity of certain regulations made under the *Petroleum Products Regulation Act 1967* (SA). The dispute arose from the imposition of a levy on petroleum products, which H C Sleigh Ltd argued was beyond the scope of the Act and therefore invalid.

The central legal issue before the High Court was whether the regulations, specifically those imposing a levy on petroleum products, were authorised by the *Petroleum Products Regulation Act 1967* (SA). This involved an examination of the Act's provisions to determine the extent of the power granted to the Executive Council to make regulations and whether the levy fell within that delegated authority.

The Court, in its joint judgment, held that the regulations were invalid. It reasoned that the Act did not confer power to impose a levy on petroleum products for the purpose of raising revenue. The power to make regulations was limited to matters of regulation and control of petroleum products, not to the imposition of taxes or levies. The Court applied the principle that delegated legislative power must be exercised within the confines of the empowering statute, and that any attempt to exceed that authority would render the subordinate legislation invalid. The appeal was allowed, and the regulations were declared invalid.

Orders