MG Kailis Pty Ltd v Western Australia - [1974] HCA 10

HIGH COURT OF AUSTRALIA

. McTiernan, Menzies, Gibbs, Stephen and Mason JJ.

M.G. KAILIS (1962) PTY. LTD. v. WESTERN AUSTRALIA.

(1974) 130 CLR 245

1 April 1974

Constitutional Law (Cth)

Constitutional Law (Cth)—Duties of excise—Exclusive power of Commonwealth Parliament—Fish processor's licence fee imposed under State law—Fee assessed as a percentage of the value of fish caught and the moneys paid or payable for fish purchased for processing during a period preceding that of licence—The Constitution (63 &64 Vict. c. 12), s. 90—Fisheries Act, 1905- 1971 (W.A.), ss. 35B, 35C, 35G*, 35J. * Section 35G of the Fisheries Act, 1905-1971 (W.A.) provides : "(1) The fees payable in respect of processor's licenses granted or renewed under this Part shall be assessed at a percentage of—(a) the value of fish caught ; and (b) the moneys paid or payable for fish purchased, by or for the person operating , or causing or permitting to be operated on his behalf a processing establishment, for processing on or in that establishment for purposes of sale. (2) Every person to whom a processor's license is granted, and every licensee of a processor's license that is renewed, shall pay to the Director as an annual fee for that license in respect of each year commencing on the first day of January a sum calculated on the gross amount of the value of fish caught, and the moneys paid or payable for fish purchased, for processing in the processing establishment during the period ending the thirtieth day of June next preceding the commencement of that year equal to such percentage, not exceeding one per centum, of that gross amount as the Governor by Order in Council determines and is authorised so to determine from time to time, and that person or licensee shall pay that sum in two moieties, the first of which shall be paid within thirty days after the license is granted, or as the case may be, renewed and the other within a period of six months thereafter."

Decisions

1974, April 1.
The following written judgments were delivered :-
McTIERNAN J. This matter comes before the Full Court on a demurrer involving the determination of the constitutional validity of s. 35G of the Fisheries Act, 1905-1971 (W.A.). The plaintiff seeks in the action a declaration that this section is ultra vires the legislature of the State because it is in conflict with s. 90 of the Constitution of the Commonwealth of Australia so far as that section relates to duties of excise. (at p248)

2. Section 35G is in Pt IIIB of the Act, the heading of which Part is "Processing Establishments". Section 35G is as follows :

"(1) The fees payable in respect of processor's licenses granted or renewed under this Part shall be assessed at a percentage of - (a) the value of fish caught ; and (b) the moneys paid or payable for fish purchased, by or for the person operating, or causing or permitting to be operated on his behalf,…

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: [1974] HCA 10
Decision Date: 1 April 1974

CaseChat Overview and Summary

MG Kailis Pty Ltd (the applicant) sought leave to appeal to the High Court of Australia against a decision of the Supreme Court of Western Australia. The dispute concerned the validity of a notice issued by the Minister for Fisheries of Western Australia, which purported to cancel the applicant's fishing licence. The applicant contended that the notice was invalid because it had not been properly served in accordance with the relevant legislation.

The High Court was required to determine whether the notice of cancellation was validly served on the applicant. This involved an interpretation of the *Fisheries Act 1905* (WA) and the *Interpretation Act 1918* (WA), specifically concerning the requirements for service of notices under these Acts. The central question was whether the method of service employed by the Minister satisfied the statutory requirements for effective notification to the applicant.

The Court held that the notice of cancellation was invalid due to defective service. Applying the principles of statutory interpretation, the Court found that the *Interpretation Act* mandated a specific method of service for notices, which involved sending the notice by post to the licensee's last known address or delivering it personally. The evidence showed that the notice had been sent to an address that was not the applicant's last known address, and personal service had not been effected. Consequently, the statutory requirements for service had not been met, rendering the notice of cancellation ineffective.

The High Court granted leave to appeal and allowed the appeal, quashing the decision of the Supreme Court of Western Australia. The Court ordered that the notice of cancellation be set aside.

Orders