Whitehouse v Queensland

High Court of Australia|1960-07-01|Before: Windeyer JJ

For the reasons which I have given in Dennis Hotels Pty. Ltd. v. Victoria [1] I am of opinion that the demurrer in this case should be allowed.

For reasons similar to those which I have stated in the case of Dennis Hotels Pty. Ltd. v. Victoria [1] I am of opinion that the Queensland tax which the present case challenges is not a duty of excise.

In this case it was pointed out to us that licensed victualler's licences issued under The Liquor Acts, 1912 to 1958 (Q.) are issued for indefinite periods and are not, therefore, required to be renewed annually. Accordingly, it was said that licence fees payable pursuant to the Act are not paid for the licence. But when it is seen that the Acts provide that the Commission may at any time forfeit any licence in respect of which any fee imposed under and in accordance with the Act has not been duly paid the difference in the form of the legislation has no significance. Nor does any other feature of the case differentiate it from the case which we have just decided. Accordingly, for the reasons given in that case, the demurrer should be allowed.

By this action, the plaintiff challenges the validity of so much of s. 18 (1) of The Liquor Acts 1912 to 1958 (Q.) as requires the payment of annual fees for every licensed victualler's licence of a sum equal to four per cent of the gross amount paid or payable for or in respect of all liquor which during the twelve months ended on the first day of June in the preceding year was purchased or otherwise obtained for the licensed premises. What is claimed is that such licence fees are duties of excise and their imposition is therefore beyond the power of the State. To this the defendants have demurred.

The scheme of the Queensland Liquor Acts is much the same as that of the Victorian Licensing Act under consideration in Dennis Hotels Pty. Ltd. v. Victoria [1] , and s. 18 (1) of the former corresponds with s. 19 (1) of the latter. The circumstance that instead of being annual the licences provided for by the Queensland Act are indefinite but subject to forfeiture in the event of non-payment of annual licence fees is not to my mind a significant difference for present purposes; the fees are still fees for the licences to carry on business in the future assessed upon past turnover and are not taxes upon sales or purchases. The reasons I have given in that case for holding that s. 19 (1) (a) of the Victorian Act does not impose or authorize the collection of a duty of excise and is valid, require the conclusion that s. 18 (1) of the Queensland Act is valid.

The defendants' demurrer should therefore be allowed.

I have had the advantage of reading the judgment of the Chief Justice. I respectfully agree in it. I need not repeat the views that I set out in Dennis Hotels Pty. Ltd. v. Victoria [1] . In principle they are applicable in this case also.

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. Whitehouse v Queensland [1960] HCA 11

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