Sung v The Chief Commissioner for Business Franchise Licences (Tobacco)

The applicant, Sung, sought the removal of a cause from the Supreme Court of New South Wales to the High Court of Australia pursuant to section 40(1) of the Judiciary Act 1903. The respondent was the Chief Commissioner for Business Franchise Licences (Tobacco). The application for removal was opposed by the respondent.

The legal issues before the High Court concerned the appropriate course of action for proceedings pending in the Supreme Court, particularly in light of a related matter being considered by the High Court. Specifically, the court had to determine whether to stand the application over, and whether to grant a stay of proceedings in the Supreme Court. A further issue arose regarding the grounds upon which an appeal against an assessment could be brought under the relevant legislation, and whether a constitutional challenge under section 90 of the Constitution could be validly raised in those appeal proceedings.

The court considered that the most convenient course would be to stand the application over sine die, with leave to the applicant to restore it to the list. This would allow the parties to address the matter based on the outcome of the High Court's decision in a related case. The respondent opposed a stay of proceedings in the Supreme Court, arguing that an assessment had been made, enforcement action had proceeded to judgment, and the time for appeal from that judgment had expired. The respondent contended that the grounds of objection taken in the initial proceedings did not relate to section 90 of the Constitution, and that while a subsequent appeal had been permitted to include an amended ground relating to section 90, the validity of raising this point was itself an issue in those proceedings.

The court indicated it would stand the application over sine die with leave to restore, but the Solicitor-General for New South Wales indicated that a stay of proceedings in the Supreme Court was not a matter directly before the High Court.