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Matthews v Chicory Marketing Board (Vict)

Matthews v Chicory Marketing Board (Vict)

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Case Copied 9 August 1938 74 min read

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60 CLR 263

MARKETING

RESPONDENT. (VICTORIA)

COMPLAINANT,

ON APPEAL FROM A COURT OF PETTY SESSIONS OF Constitutional Law-Excise duty-Freedom of inter-State trade-State marketing legis-

lation-Marketing board-Levy imposed in respect of area of land planted The Constitution (63 &64 Vict. c. 12), secs. 90, 92-Marketing of Primary Products Act 1935 (Vict.) (No. 4337), secs. 4, 6, 7, 16, 19, 26, 32.

The Marketing of Primary Products Act 1935 (Vict.) provided for the appointment of marketing boards, which were authorized to make levies on producers. The Act excluded from its operation any commodity which was the subject of inter-State trade. The Chicory Marketing Board, appointed under the Act, made a levy on producers of £1 for every half acre of land planted with chicory. Prior to the constitution of the board the defendant had sold the chicory planted on his land in Victoria to a purchaser in New South Wales, and the chicory was delivered pursuant to the contract.

Held, by Rich, Starke and Dixon JJ. (Latham C.J. and McTiernan J. dissent- ing), that the levy made by the board under the provisions of the Act constituted the imposition of an excise duty within the meaning of sec. 90 of the Constitution and that the levy and the provisions of the Act authorizing it were, consequently, invalid.

Per Latham C.J., Rich, Starke and McTiernan JJ.: Such invalidity did not arise from sec. 92 of the Constitution.

60 CLR 264

A. APPEAL, by way of order to review, from a Court of Petty Sessions 1938.

The Chicory Marketing Board of Victoria sued Horace Matthews in the Court of Petty Sessions at Melbourne for the sum of £11, being the amount of a levy made by the board under a resolution made by (VICT.).

it pursuant to sec. 32 1 (a) of the Marketing of Primary Products Act 1935 (Vict.) in respect of five and a half acres of land at Phillip Island planted with chicory by the defendant during the year ending 30th June 1937. Prior to the constitution of the Chicory Marketing Board under the Act, the defendant had sold the produce of the land to a purchaser in New South Wales, and it was duly delivered to him in pursuance of such contract. The defendant refused to pay the sum of £11 claimed by the board as the amount of the levy. The Court of Petty Sessions made an order for the amount claimed.

The defendant appealed to the High Court, by way of order to review, on the ground that the Marketing of Primary Products Act contravened sec. 92 of the Constitution. On the hearing of the order to review the defendant was given leave to add the further ground that the Act imposed an excise duty and SO contravened sec. 90 of the Constitution.

Sanderson, for the appellant. The question in issue is whether a man who is engaged in inter-State trade is liable to pay the levy made upon him by the board. The appellant had contracted…

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: [1938] HCA 38
Decision Date: 9 August 1938

CaseChat Overview and Summary

The case of *Matthews v Chicory Marketing Board (Vict)* involved an appeal to the High Court of Australia from a Court of Petty Sessions. The Chicory Marketing Board of Victoria had sued Horace Matthews for a levy imposed under the *Marketing of Primary Products Act 1935* (Vic.) on land planted with chicory. Matthews had previously sold his chicory crop to a purchaser in New South Wales, and the crop was delivered interstate. The Board had obtained an order for the levy amount in the lower court, and Matthews appealed.

The central legal issues before the High Court were whether the levy imposed by the Chicory Marketing Board was invalid under section 92 of the Australian Constitution, which guarantees the freedom of inter-State trade, commerce, and intercourse, and whether the levy constituted an excise duty, thereby contravening section 90 of the Constitution, which grants the Commonwealth Parliament exclusive power to impose duties of excise.

A majority of the High Court, comprising Rich, Starke, and Dixon JJ., held that the levy imposed by the Board constituted an excise duty within the meaning of section 90 of the Constitution. Consequently, they found the levy and the provisions of the Act authorising it to be invalid. Latham C.J. and McTiernan J. dissented on this point. The majority also found that the invalidity did not arise from section 92 of the Constitution, a view shared by Latham C.J., Rich, and McTiernan JJ.

The Court ordered that the appeal be allowed, the order of the Court of Petty Sessions be set aside, and the Chicory Marketing Board's claim be dismissed.

Orders