Ngo Ngo Ha v New South Wales

The applicant, Ngo Ngo Ha, sought to strike out a statement of claim filed by the respondent, the Commissioner of State Revenue of New South Wales. The dispute concerned the validity of New South Wales state taxes imposed on the sale of tobacco products. The applicant argued that these taxes were invalid as they infringed section 90 of the Australian Constitution, which vests the exclusive power to impose duties of excise in the Commonwealth Parliament. The matter came before the High Court of Australia, with Kirby J considering the application to strike out the statement of claim.

The central legal issue before the Court was whether the respondent's claim, asserting the invalidity of the state taxes on tobacco sales, presented an arguable case in law. This required the Court to consider whether the claim was so obviously untenable that it should be summarily dismissed, or whether it raised questions that warranted further argument, particularly in light of established High Court authority on section 90 of the Constitution. The Court also had to determine the appropriate approach to applications for summary dismissal, especially in constitutional cases.

Kirby J refused the application to strike out the statement of claim. His Honour acknowledged the long-standing and consistent line of High Court authority holding that state taxes on the sale of goods, including tobacco, constitute duties of excise and are therefore invalid under section 90 of the Constitution. However, Kirby J noted that the applicant had not demonstrated that the case was entirely without merit or that there was no reasonable prospect of success. He indicated that while the existing authority was strong, there were circumstances in which the Full Court might grant leave to reargue such authority. Consequently, peremptory relief by way of striking out the statement of claim was refused, allowing the case to proceed.