[1984] HCA 18; (1984) 154 CLR 311

Gibbs C.J.(1), Mason(1), Murphy(1), Wilson(1), Brennan(1), Deane(2)

Constitutional Law (Cth) - Duties of Excise - Exclusive power of Commonwealth Parliament - Tobacco retailers and wholesalers licence fees imposed by State law - Fees calculated upon value of tobacco sold in period preceding commencement of licence period - Validity - Comparable legislation held valid on three previous occasions - Whether Court should permit correctness of earlier decision to be reopened - Whether leave required to argue that earlier decisions incorrect - The Constitution (63 & 64 Vict. c. 12), s. 90 - Business Franchise (Tobacco) Act 1974 (Vict.).

GIBBS C.J., MASON, MURPHY, WILSON, BRENNAN and DAWSON JJ. Although the Court is not bound by its own decisions, that does not mean that the Court will hear full argument on every occasion when counsel wishes to contend that a previous case was wrongly decided. In the present case, the legislation which the plaintiffs seek to impugn as imposing a duty of excise is indistinguishable from that which was upheld in Dickenson's Arcade Pty. Ltd. v. Tasmania [1974] HCA 9; (1974) 130 CLR 177. In that case, the Court heard argument directed to show that the earlier decision in Dennis Hotels Pty. Ltd. v. Victoria [1960] HCA 10; (1960) 104 CLR 529 should not be followed, but declined to accept that argument. Again, in H.C. Sleigh Ltd. v. South Australia (1977) 136 CLR 475, the Court held that those cases should be followed. The Court does not consider that it should now hear further argument urging it to depart from the actual decision reached in those cases, particularly since the States have organized their financial affairs in reliance on them.

DEANE J. In my view, counsel representing a party does not require the permission of the Court to present or to continue to present argument that is relevant to the decision in the case, including argument seeking to show that a previous decision of the Court is wrong and should not be followed. I would, however, add that, in the circumstances of the present case and on what has been said, I agree with the view of the other members of the Court that it is not appropriate, at least at the present time, to reconsider the correctness of the actual decisions in Dennis Hotels and Dickenson.

Judgment for the defendants in the actions with costs.