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High Court of Australia Transcripts |
Office of the Registry
Sydney No S45 of 1996
B e t w e e n -
NGO NGO HA
First Plaintiff
SOKHIENG LIM
Second Plaintiff
and
STATE OF NEW SOUTH WALES
First Defendant
BRUCE BUCHANAN
Second Defendant
R. G. SMITH
Third Defendant
Application by defendants to strike out statement of claim
Application by plaintiffs for a reference to a Full Court
KIRBY J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 24 MAY 1996, AT 9.33 AM
Copyright in the High Court of Australia
HIS HONOUR: Notices were given under section 78B of the Judiciary Act, I understand. Are there any appearances today pursuant to those notices or not?
MR MASON: There are none, and I am in a position to file an affidavit of service - I think in fact there were two - each side sent 78B notices, but I can certainly prove that we did.
HIS HONOUR: Yes, if you would do that, please.
MR MASON: It is a copy of an affidavit of John McDonnell sworn 17 May. It has been filed in Court, your Honour.
HIS HONOUR: I will just make sure that I have that. An affidavit of John McDonnell, sworn 17 May 1996 deposing to service of notices of a constitutional matter is read. I note the notice.
MR MASON: Thank you.
HIS HONOUR: You are relying on certain affidavits, I think. Perhaps you might identify those.
MR MASON: Yes, I do. It is an affidavit of John Kenneth McDonnell, affirmed 8 May 1996.
HIS HONOUR: I correct the last statement. The affidavit of Mr McDonnell is affirmed. Have you seen this, Mr Jackson, the affidavit of 8 May? Is there any objection?
MR JACKSON: No, there is no objection, your Honour.
HIS HONOUR: The affidavit of John Kenneth McDonnell, affirmed 8 May 1996 is read. Is that the only affidavit that you read?
MR MASON: No. I seek leave to file in Court a further affidavit of Mr McDonnell, affirmed today. In part it is in-chief and in part it is in reply so I will seek to read it now.
MR JACKSON: No objection, your Honour.
HIS HONOUR: I read a further affidavit of John McDonnell, affirmed this day.
MR MASON: My friend is about to read an affidavit. We object just to the last paragraph of it on the ground of relevance.
HIS HONOUR: Yes, Mr Jackson.
MR JACKSON: Your Honour, the affidavit I read is that of Steven John Doran, sworn 22 May 1996. If I could just say in relation to paragraph 9 of it, whilst the rate of tax applicable in the present case was 75 per cent and paragraph 9 refers to matters that occurred subsequent to that raising the level to 100 per cent, we contend that the relevance of that is to indicate that the issue is one of importance.
HIS HONOUR: I realise that, but it is objected to on the basis of form. Is this not a matter of inference and argument, rather than of evidence?
MR JACKSON: Your Honour, I thought the objection to it was on the ground of relevance.
HIS HONOUR: The relevance I can reserve to be determined in due course, but is that the basis of the objection, relevance?
MR MASON: Yes, it is, and particularly having regard to the evidence that the plaintiffs have gone out of business. They have no standing to complain about an amendment that does not affect their assessment, but - - -
HIS HONOUR: But does that affect both plaintiffs?
MR MASON: Yes.
HIS HONOUR: It says the second plaintiff closed her business, and the first plaintiff sold her business, I see.
MR MASON: It goes to standing and, of course, the assessment in question here was - - -
HIS HONOUR: How can it go to standing? They have received an assessment; presumably they would still be liable under the assessment.
MR MASON: Yes, but they have got standing to challenge the 75 per cent duty, not the 100 per cent duty that was passed after they received their assessment and after they went out of business.
HIS HONOUR: Yes. I will read the whole of the affidavit. I note the objection to paragraph 9 on the basis of relevance. I will not determine that matter now but will, if necessary, determine it in due course. Is there any affidavit in reply to the affidavit of Steven John Doran, sworn 22 May 1996 which I read?
MR MASON: Not apart from the one that I have already read, your Honour. There is no further evidence.
HIS HONOUR: That is the evidence. What do you say, Mr Solicitor?
MR MASON: May I inquire whether your Honour has received an outline of submissions?
HIS HONOUR: I have, and I have read them.
MR MASON: Thank you. Your Honour, at least according to the affidavit filed on behalf of the plaintiffs, the plaintiffs seek to avoid the line of cases upon which we rely on two possible grounds. It has been foreshadowed that the Full Court might be asked to reopen the cases yet again and, secondly, that there will be an attempt to distinguish the cases, having regard to the increase in the rate of the fee.
In one sense, those two points bear upon each other. Our submission is that there comes a time when enough is enough, at least with respect to the capacity - - -
HIS HONOUR: There can never be enough. There can never be enough constitutional challenges. Its fascination permeates this Court. It is the life blood of the High Court of Australia. The point you make is the last challenge was as recent as 1993 and the recency of it, the similarity of the legislation, are such that it should not be allowed to be ventilated, at least so quickly. It should wait for some future time with a decent interval.
MR MASON: I would agree with that without the qualification, but that is my submission.
HIS HONOUR: Which Justices made up the Court in 1993. Are there new Justices, apart from myself, since the - - -
MR MASON: Yes, Justice Gummow. I certainly will be taking your Honour, as it were, briefly through the recent cases. May I just say that, as a general principle, it must be the case, we submit, that certain constitutional claims are capable of being struck out in accordance with the general principle relating to dismissal of untenable causes of action, and the real question is whether this falls within that principle. Here, so far as - - -
HIS HONOUR: Do you agree that it would be rarer that one would do it in a constitutional case than in other litigation?
MR MASON: No, with respect I would submit that the same principle is applicable.
HIS HONOUR: I was reading in another context recently Justice Windeyer's statement in Reg v Phillips where he quoted what Justice Holmes and Justice Frankfurther said in the US Supreme Court to the effect that the Constitution is in a special case, that new insights, different social circumstances, changing state of the nation and so on - and he inferred new Justices - give rise to a different principle in constitutional cases, and that we must ever remain vigilant for new understanding of the Constitution to which all of the Justices should contribute.
MR MASON: Yes, that must be, with respect, accepted.
HIS HONOUR: Does that not then distinguish a constitutional case?
MR MASON: Not completely, because there still is a principle of stare decisis applicable in the constitutional sphere and it has particular application in the present context. So I am only submitting at this point that acknowledging that the Court has the power to reopen constitutional decisions and acknowledging that there is some support for the proposition that in that area there are different principles at play because we have a very rigid Constitution and because of the principles to which your Honour has adverted, nevertheless it remains the principle that there can be cases which are untenable, and they are untenable because they fly in the teeth of authoritative and, if necessary, recent determinations by the Court.
Your Honour, I do not propose to take you through the cases that are referred to in paragraph 1. Can I just say with respect to Bath v Alston Holdings, the passage which we rely upon is at page 424, because although Bath is primarily a 92 case, there is a statement in the context of section 90.
So one has, therefore, six attempts to reopen Dennis Hotel in the tobacco line, coupled with one very recent refusal of special leave which was in this area. One of those cases, the recent case of Coastace, involved a challenge to the New South Wales Act.
HIS HONOUR: Which was the refusal of special leave?
MR MASON: The refusal of special leave concerns a case called Seboa and I have copies of that for your Honour.
HIS HONOUR: I do not know that case.
MR MASON: Seboa was the Appeal Division of the Supreme Court of Victoria. This was a default assessment. There were a number of grounds argued, but at page 134 reference was made to the Philip Morris Case which was a challenge to the Victorian Business Franchise (Tobacco) Act 1987 . About line 15 counsel:
relied in particular on the dictum of Mason C.J. and Deane J. quoted above (with which, as he asserted, the dissenting judgments of Brennan and McHugh JJ. were in general harmony) and submitted by reference to it that the amount of the appellant's assessment could by no means be regarded as a fee for carrying on a business by the appellant.
There was a reference to the size of the fee and a swingeing tax, at about line 29. At page 137 in the judgment of Justice Tadgell, which was the judgment in effect of the court, about line 14:
Counsel for the appellant referred to and relied on the features of the tax-raising scheme of the Act which led Brennan J. in the Philip Morris Case to conclude, at pp. 461-4, that the tax was an excise duty, a conclusion in which McHugh J. agreed, especially at p.494. These features were chiefly first, that the licensing scheme under the Act was not properly to be classified as regulatory or as imposing fees as the price of carrying on a business; second, the variable incidence of the tax; third, the rate of the tax. Those dissenting views are, with respect, weighty, but this court is not free to give effect to them, having regard to the opinions of the majority of the court in the Philip Morris Case, unless that case is distinguishable upon some relevant fact.
HIS HONOUR: I ask you to pause there. Because of the nature of my past duties, I am really not familiar, except in a very general way, with this line of territory. I therefore form no view on the cogency of the dissenting view of Chief Justice Brennan or Justice McHugh and, as far as I know, Justice Gummow has expressed no view on the matter. But are we not at a point where we have a Full Court of the court of the State saying that the dissenting views are weighty, and a party that wants to litigate the matter in the court. How can I say that that is not a matter that would be permitted?
MR MASON: The last page in the bundle was the special leave application from the Full Court decision and the special leave was refused on the ground that the decision was not attended with sufficient doubt to justify a grant.
HIS HONOUR: An enigmatic Delphic statement that does not say very much to me.
MR MASON: No.
HIS HONOUR: I see that Chief Justice Mason was a party to that. He would not be a party to any appeal. I am not saying that one can just say, "Well, the Court is different and therefore stare decisis goes out the window", but it is, it seems to me, one of those factors which was in the mind of Justice Windeyer in saying that one must be alert to changing circumstances and times and insights. That is just the nature of a constitutional court.
MR MASON: Yes, but I hope to demonstrate by reference to Capital Duplicators decision that the Court, as a, as it were, judicial institution, has recognised that in this particular area there have been repeated attempts to raise the argument that my friend seeks to raise as one of his branches of argument, and notwithstanding, the Court has recently, I submit, taken a view and that nothing in the passage from Justice Windeyer to which your Honour refers gives any support for the notion that one can wait for a change in the constitution of the Court and then have another go. That is, in my submission, an irrelevant fact, although I accept that changing times and perceptions are relevant.
HIS HONOUR: It is not as vulgar as that, but it is part of the reality. If I am being honest, that when you have a new composition of the Court you do tend to get different insights on constitutional points. I suppose that is one of the reasons when, by law and by practice in this Court, in constitutional cases all Justices are available to sit, in order that the diversity of opinion of those who are appointed is brought to bear on the problem.
MR MASON: Yes, but to be honest as it were in reply, with respect, your Honour, it would not be an appropriate constitutional approach to the function of the Court as a determinant of what is constitutional to see that the change in composition of the Court per se has any relevance.
HIS HONOUR: What you say is definitely orthodox theory. I am trying to go behind that to realities. If we ask ourselves why have insights changed over a century of our Constitution's existence and of the Court, you cannot tell me that the differing personnel of the Court have not had an impact on that.
MR MASON: That is certainly correct, yes.
HIS HONOUR: But it is a matter of not saying, well, you can just lie in wait until you get new Judges and you have got to then make your move. I understand that would be an undesirable - we have enough work without encouraging that notion.
MR MASON: It would also, if that became even implicitly an appropriate principle, it would be an encouragement to a government to be deflected from appointing the best person for the job and to be considering the impact that a particular Judge would bring to bear upon a particular line of decision making. In my submission, that would not be a principle to receive any judicial encouragement.
HIS HONOUR: I have heard rumours that that is occasionally taken into account.
MR MASON: I said it is not a principle that should be given encouragement by the Court; I did not say it is not a principle that - - -
HIS HONOUR: It is government's hopes rather than accurate prediction.
MR MASON: May I take you to the Capital Duplicators Case in [1993] HCA 67; 178 CLR 561. I am sorry, I will start at Philip Morris, but I will not dwell too long on it. Philip Morris is [1989] HCA 38; 167 CLR 399, and it is to be read together with the much shorter decision in Coastace which is at page 503 in the same volume of the reports. The two cases were argued together. They involved challenges to the Victorian and New South Wales schemes respectively.
HIS HONOUR: Coastace is about the State Act?
MR MASON: The New South Wales Act.
HIS HONOUR: Yes, the New South Wales State Act and - - -
MR MASON: Philip Morris is the Victorian Act.
HIS HONOUR: Yes, I realise that. Between Coastace and the present statement of claim was there any amendment to the New South Wales Act?
MR MASON: As to amount?
HIS HONOUR: Quantum.
MR MASON: As to quantum, but not otherwise of any relevance.
HIS HONOUR: But there was an amendment as to quantum?
MR MASON: Oh yes.
HIS HONOUR: So it is not exactly the same fact situation as it was?
MR MASON: Correct. Yes, I do not say, as it were - - -
HIS HONOUR: I just wondered about the latest affidavit to the sale of the business, the quantum has gone up again.
MR MASON: Yes.
HIS HONOUR: But even between Coastace and the statement of claim the quantum had increased.
MR MASON: Yes. In Philip Morris the rate in Victoria was a flat fee plus 25 moving to 30 per cent.
HIS HONOUR: It was $50, was it not?
MR MASON: $50 plus 25 moving to 30. In New South Wales in Coastace it was 10 plus 30. As affects the plaintiffs in this case, it is 10 plus 75. As it stands at the moment it is 10 plus 100 in New South Wales. Now, your Honour, when Philip Morris and Coastace were argued, the Court had previously decided, initially in Dennis Hotels, that there was a constitutional acceptability of backdated licensing schemes, at least as regards the Dennis Hotel category, and in Dickenson's Arcade in 1974 had applied that principle to the Tasmanian tobacco backdated licensing scheme. In Evda Nominees, which was in 1984, an attempt was made to reopen those decisions and the Court by a majority of 6:1 declined to reopen the decisions.
HIS HONOUR: Was the one Justice Deane?
MR MASON: Justice Deane.
HIS HONOUR: But Justice Deane's view was on the procedural point, was it not; that is to say whether or not you needed leave? Did he express a view of the substantive issue or - - -
MR MASON: The Court having declined by majority to reopen, that was the end of it. It was not reopened.
HIS HONOUR: How did it get to the Full Court on that occasion? There was no pre-emptive strike such as this?
MR MASON: No, there was a demurrer.
HIS HONOUR: I see. Why have you not taken that course that would ensure that the matter goes to a Full Court and that the risk which it seems to me is not to be overlooked, that a Justice is disqualified because he has reached a view on the matter, would be avoided. See, if I were to uphold your view on a thorough consideration of your arguments, would I not be disqualified from sitting in the hearing of any application for review of that decision?
MR MASON: No, because your Honour would just be joining five of your brethren in expressing a view on this general issue.
HIS HONOUR: No, but I would be striking out a statement of claim. Mr Jackson is not going to just sit there quietly and accept that. He will take it elsewhere.
MR MASON: No, no. If your Honour struck out the statement of claim, there would be an appeal, and your Honour would not sit on that appeal.
HIS HONOUR: Exactly. Is that a desirable course?
MR MASON: Pardon?
HIS HONOUR: Is that a desirable course, that where it is a constitutional matter, where there have been factual changes, where it is a serious issue of importance to the parties and a lot of revenue turns on it, and where at least in Australian Capital Territory there is a suggestion that a factor relevant is the quantification, in such cases, if I were to determine this matter now and so disqualify myself, then I frustrate the practice of the Court and the law that all Justices should participate in these proceedings. Why should I do that?
MR MASON: But if your Honour were to refuse an otherwise proper case, you would be denying the jurisdiction and you would be - - -
HIS HONOUR: Is that not a factor relevant to the exercise of the jurisdiction?
MR MASON: I submit not, if this is an otherwise - - -
HIS HONOUR: Given that you have me entirely fresh, mindful of stare decisis, but without any preconceptions of the kind to which Justice Holmes and Justice Frankfurther referred. I am not asking you to speak on me personally; I am asking you to speak on the principle in a constitutional case where this application is made.
MR MASON: Of course, your Honour, we did not choose your Honour to sit on this application.
HIS HONOUR: No. I repeat I am not asking this about myself; I am asking it about the principle.
MR MASON: The application is brought to the Court. If it is accepted that there are some categories of cases where enough is enough, then a party is entitled to invoke the jurisdiction of the Court to have the line drawn. Your Honour said why not deal with this as a demurrer? Given (a) the general cost, the impact of a challenge upon other franchisees who may be minded to seek some guidance or take some action pending that challenge; given the fact - and responding also to your Honour's question - that the plaintiffs in this case have paid not a cent of duty and have gone out of business; given the fact that whilst it is true that an application for Mareva or some such relief or even to enforce the assessment pending the appeal could be brought, and my reading of it it has to be brought in the Supreme Court because a cross-claim that does not raise a constitutional issue may not be filed under the Rules of this Court, a cross-claim must itself, standing alone, be within the jurisdiction of the Court. So if there were to be an application for interim enforcement or actual enforcement pending the constitutional challenge, relying upon the presumption of the validity of the statute, then the State is faced with a Supreme Court judge being told, "Well, this is in the High Court, you never know what may happen in the High Court. It has been said there will be a challenge or there is a challenge. You wait." The busyness of the Court means that one would expect one could have to wait up to 12 months. So that is an answer to your Honour's question as to why this stance has been taken.
HIS HONOUR: But you could presumably in the special circumstances seek some form of expedition.
MR MASON: Oh yes, and obviously we would if - - -
HIS HONOUR: Another procedure would be a stated case, would it not, to get a case stated for the opinion of the Full Court on particular questions of law. Then you have got the seven available Justices to determine it.
MR MASON: Yes.
HIS HONOUR: It is just that the procedure you have chosen has the consequence of effectively removing one of the seven Justices of the Court if there is an appeal against the decision.
MR MASON: It would remove, if the appeal is confined to an appeal from the strike out. But one asks rhetorically, "What would be wrong with that if it is a case that otherwise attracts the jurisdiction to strike out." Your Honour last week struck out Mr Lindon's constitutional claim on the ground that it was untenable according to the proper application of constitutional principle.
HIS HONOUR: I felt that that was a clear case, whereas in this case, on my understanding of the principles, a factor relevant to the application of the principles is the quantification. The Act has not stayed unchanged, the Act has changed, the quantification has been changed. That is relevant. The other side say (a) they want to distinguish the past cases and (b), if they cannot, they want to apply to reopen them. They have to run the gauntlet of Evda. So I just do not at the moment feel that this is in the same league as - there are millions of dollars turning on this case. It is an important matter for the parties and for the community.
MR MASON: But Mr Lindon said he wanted to advance arguments and your Honour assessed those arguments according to the very stringent standards of strike outs, and your Honour said, look, that is it.
HIS HONOUR: If this case had come, for example, and the Act had not been changed, then it would seem to me that even with the lapse of three years that perhaps that would be a case where you would get your relief. But where the Act has changed, and in a particular that is at least potentially arguable as being relevant to its constitutional validity, it seems to me that the matter cannot be said by the stringent standards to be such that I should strike it out with the consequence that the Court must then sit as six to hear the appeal from my order.
MR MASON: It would not have to sit as six; it could sit as five, but if it sat as six - I just cannot recollect how the counting system goes. Is it not one of those situations where your Honour's decision gets counted if it an appeal from the six - - -
HIS HONOUR: I would not be determining the constitutional matter finally; I would simply be determining it as a sort of side wind to the arguability of the point.
MR MASON: But if the other six or five Justices who heard an appeal in this hypothetical situation were of the view that the matter was arguable, then nothing would have been lost. If they affirmed the view, if your Honour held it, that this case attracted the Lindon principles, so be it. It is a question of whether this power in the Court has application and, if so, to what extent its application is watered down or changed in a constitutional context. The mere fact that a party says, "I have an argument that I want to put" could not be determinative, even if it is a party with the stature of counsel of my learned friend on the right.
HIS HONOUR: I agree with that.
MR MASON: The Court has to assess - in one sense it may be said that your Honour has to do a predictive exercise as to what the whole Court, yourself being a member, would do were the matter argued before the Court of seven.
HIS HONOUR: I said two days ago in the Ampolex Case that a single Justice has almost as much difficulty in that exercise as has the profession.
MR MASON: But single Justices have to do this in bail applications and these sort of applications, in my respectful submission.
So I think I got as far as Evda and what happened there. The matter came again in Philip Morris, and in Philip Morris there was, in one sense, a little bit of a breaking of the ranks. The Commonwealth argued to overturn the Dennis line and South Australia joined in that. The other States argued to hold the line. At page 405 of the report it is noted at the top that:
The Court indicated that it would first hear argument whether Dennis Hotels Pty Ltd v Victoria, Dickenson's Arcade Pty Ltd v Tasmania and H.C. Sleigh Ltd v South Australia should be reconsidered.
You can read that as being liquor, tobacco, petrol. That argument proceeded. At page 409 the Chief Justice announced, after overnight reservation, that the view of the Court other than Justice Deane was that:
The Court does not propose to reconsider the correctness of the actual decisions in Dennis Hotels Pty Ltd v Victoria, Dickenson's Arcade Pty Ltd v Tasmania and H.C. Sleigh Ltd v South Australia.
The Court then heard argument in which there was considerable disagreement as to what those cases stood for. Part of the difficulty that emerged from the decision the Court had taken showed itself in the reasoning of the Justices because having ruled that they would not reopen the cases, they then disagreed on what the cases stood for.
Nevertheless, the Justices then gave their judgments. Now, I am going to go to the summary of their judgments in the later case but I just wish to draw attention to two things about Philip Morris. The first is the reference to the revenue at page 404. Your Honour will see that in the stated case there was material about the revenue significance and the rising revenue significance to the State of Victoria of this form of fee or tax. Nobody has contended, as far as I know, that that revenue is intended to run the licensing scheme per se. While some Justices have spoken about the scheme being regulatory, it is not regulatory in the sense that the money collected is purely for operating the scheme. At page 485 in the judgment of Justices Toohey and Gaudron near the top their Honours said:
Neither the scheme nor the operation of the Act suggests that the licensing system thereby established has any purpose other than the collection of revenue. In particular, the system cannot be viewed as being, in substance, a method of regulating the sale of tobacco products.
Their Honours having said that for them there was nothing regulatory, purely fiscal, said that nevertheless it was valid and the reason they took for that position was that because the tax was not confined in its operation to goods produced or manufactured in Australia, then it was not capable of being an excise.
In that view, which their Honours repeated in Capital Duplicators, they came to be joined by Justice Dawson. The facts in the present case deposed to in Mr McDonnell's first affidavit is that the tobacco products in the present case, as one would expect, are not purely locally manufactured tobacco products. So that on the view initially espoused by Justices Toohey and Gaudron, now joined by Justice Dawson, the present fee, regardless of the size and regardless of acknowledgment that it is purely to collect money, would not be an excise.
The final thing about this case is there is the accompanying report in Coastace at page 503 where their Honours, in several judgments, repeated their views expressed in detail in Philip Morris, and said that the New South Wales legislation was relevantly indistinguishable.
In Capital Duplicators [No 2] [1993] HCA 67; 178 CLR 561, the Court having previously determined by a majority, but nevertheless that majority ruling was accepted as the ruling of the Court by the whole Court, having previously determined that section 90 applied to the Territories, then had to determine whether section 90 struck down a backdated licensing fee system in the ACT dealing with business franchise X videos. The minority judgment in Capital Duplicators was that of Justices Toohey, Gaudron and Dawson and, in effect, each of their Honours said that because X-rated videos come from home and abroad the licence fee is incapable of being a duty of excise. Justice Dawson, at page 619, in effect joining with the other two Justices in adopting that view of the meaning of excise.
The majority decision, however, was given by the Chief Justice and Justices Brennan, Deane and McHugh. At page 591 their Honours address the question of reconsideration of Dennis Hotels and Dickenson's Arcade. What happened in this case, your Honour, was that some of the States argued for going right back to basics and an adoption of the Peterswald v Bartley view of excise which would have excluded a tax on distribution as distinct from manufacture. The majority of four rejected that and they said the line adopted by Justice Dixon that distribution was included would be held.
The Commonwealth counter-attacked by saying the Court should reconsider the Dennis Hotel exception to the Dixonian principle. It is that that is addressed at page 591 and following. About eight lines up from the bottom - and the significance of this, your Honour, is this, that Justices Brennan and McHugh were the dissentients in Philip Morris and they, and they alone, were the Justices that said that the size of the fee was a factor in making the tax in Philip Morris an excise, even though it was in the guise of a backdated licensing scheme.
If I can just encapsulate the proposition I am about to seek to make good. The four Justices in the passage at 591 and following said, in effect, "Tobacco and liquor are in a category of their own." Notwithstanding the divergent reasons for upholding tobacco and liquor, and notwithstanding the fact that at least two of those Justices had been of the view that the size of the fee counted, they said, "Outside of tobacco and liquor" - and Capital Duplicators was an outside of tobacco and liquor case - "the size of the fee is important". They went on to strike down - - -
HIS HONOUR: How does one draw a distinction conceptually between the particular product. Where is that in section 90?
MR MASON: I will endeavour to come to why the Court, and in my submission this was a decision of the Court, for various reasons said that the - - -
HIS HONOUR: You are lifting a veil from my eyes here. I am not familiar with this territory. I am not familiar with these nice distinctions but it seems an unusual distinction to draw in terms of the Constitution, which makes no reference to particular products. However, press on.
MR MASON: At page 591, about 10 lines up from the bottom, their Honours noted:
However, it was not argued on behalf of any party or intervener in the present case that, even if the Court was not prepared to adopt a narrower view of the nature of a duty of excise, Dennis Hotels and Dickenson's Arcade should nonetheless be reopened and overruled. Nor, on balance, do we think that they should be. For one thing, there are some grounds for treating tobacco and alcohol products as constituting a special category of goods for the purpose of considering whether what purports to be a licensing fee under a regulatory regime should be characterized as a duty of excise.
And your Honour sees there is a reference back to a part of the judgment of Justice Taylor in Dennis Hotels.
The statements are never terribly clear about what is the regulatory nature of the tax as regards these products except that they are products which have traditionally been subject to regulation and they are products which have a capacity - I think the latter is more inference than express - a capacity to do harm if they were sold with complete lack of regulation.
HIS HONOUR: I would have thought it is the capacity to raise revenue easily on them that is the relevant matter.
MR MASON: That is not the reasoning expressed in any of the cases that have drawn this line. So their Honours say:
For one thing, there are some grounds - - -
HIS HONOUR: You are making this more and more interesting to me, Mr Solicitor.
MR MASON: "For one thing, there are grounds for treating" them separately. At the bottom line:
For another, there are very strong practical reasons why the rule of stare decisis should be observed in relation to those decisions. Not only was the authority of Dennis Hotels acknowledged in Bolton v Madsen, but also that decision was itself followed in the unanimous decision in Anderson's Pty Ltd v Victoria. Later, in Dickenson's Arcade, the Court refused to depart from Dennis Hotels and, subsequently, in H.C. Sleigh, the Court followed and applied the two earlier decisions. Since then, the Court has twice refused to reconsider the correctness of Dennis Hotels and Dickenson's Arcade.
It is interesting the Court overlooked Coastace, it would appear, in that summary. Then their Honours proceed to discuss Philip Morris.
In Philip Morris, the most recent instance in which there was a refusal to reconsider the two decisions, the Court refused to do so by a majority of six Justices to one. After refusing to reconsider the correctness of the earlier decisions, the Court heard other arguments as to the effect of those decisions. In disposing of those arguments, the members of the Court gave different reasons for supporting the two earlier decisions.. Mason CJ and Deane J considered that the licensing of liquor and tobacco was essentially regulatory in character and that in both cases the imposition of the licensing fee was an element in the regulatory legislation controlling the sale and distribution of the relevant commodity, the regulatory regime being designed to protect the public interest in the light of the characteristics of the relevant commodity.
Your Honour, one could not accuse those two Justices of being proponents of form over substance.
Brennan J -
he was a dissentient in Philip Morris -
thought that Dennis Hotels, Dickenson's Arcade and H.C. Sleigh were simply instances of taxes which had "no closer connexion" with production or distribution than that they were exacted for the privilege of engaging in the relevant activity. In distinguishing the exactions in Philip Morris, his Honour considered that three considerations were relevant:
and your Honour sees No (3):
(3) the rate of tax was substantial.
And this is the passage that is quoted in my learned friend's affidavit as indicating room to move, as it were, on substantial difference.
Justice Dawson, as already mentioned, accepted the application of the criterion of liability and supported the three decisions just mentioned on that footing -
As I say, Justice Dawson has since, in Capital Duplicators itself, gone over to a different basis for supporting the position we espouse.
while McHugh J regarded the three decisions as authority for no more than the facts on which they were decided, namely that the legislation in question did not impose an excise. His Honour distinguished the three decisions -
on various grounds, including "the smallness of the fee". So, your Honour, within this passage what the four Justices are saying is that two of our number, Justices Brennan and McHugh, had regard to the size of the fee in taking the minority position we did in Philip Morris. But then at 593, line 7, there is a critical passage. Their Honours said:
The diversity in the reasons given for not disturbing the earlier decisions is not an adequate ground for now disregarding the significance of the Court's repeated refusal to depart from Dennis Hotels and Dickenson's Arcade. It is true that those reasons do not support H.C. Sleigh with the same cogency as they support Dennis Hotels and Dickenson's Arcade. All that means, however, is that, if a fee imposed in purported conformity with H.C. Sleigh were of sufficient magnitude to deny a regulatory character to the law which imposes it, the validity of the fee would require close consideration.
In my submission, what their Honours are saying is you quarantine tobacco and liquor, but in petrol and, a fortiori, X-rated videos, the magnitude of the fee is or may be a factor in treating the fee as a disguised excise. In the next paragraph their Honours said:
In refusing to reconsider the franchise decisions relating to liquor and tobacco, the Court has recognised the fact that the States (and the Territories) have relied upon the decisions in imposing licence fees upon vendors of liquor and tobacco in order to finance the operations of government.
That reliance has continued and, as your Honour has heard, has increased.
HIS HONOUR: That is a novel doctrine again to me, that one gives a meaning to the Constitution because it would be extremely inconvenient if one did not give that meaning for the point of view of the funding of government. Many decisions have been made under the Constitution that are very inconvenient. It just does not seem to me to be - I suppose one construes the Constitution to reach sensible results if one can, but I am very troubled by what seems to me to be an unconceptual distinction between products. That seems to be completely unconceptual.
I acknowledge that it is there; I acknowledge that it has the authority of a Court which was struggling to find a practical and sensible solution and to be true to its own authority such as differently argued it presented; I acknowledge that these are very practical matters from the point of view of revenue for States and for the Commonwealth, I suppose; but I just find it very very hard to see conceptually a distinction between alcohol and tobacco on the one hand and other products on another.
MR MASON: I am seeking at this stage simply to ask your Honour to see what their Honours in the majority saw.
HIS HONOUR: Yes.
MR MASON: They continued that:
If the decisions were to be overruled, the States and the Territories would be confronted with claims.....for the recoupment of licence fees already paid......Hence, considerations of certainty and the ability of legislatures and governments to make arrangements on the faith of the Court's interpretation of the Constitution are formidable arguments against a reconsideration of Dennis Hotels and Dickenson's Arcade.
HIS HONOUR: I wonder why that principle did not stay the hand of the High Court in abolishing the old arbitration court. All those awards, all those entitlements, all those workers with rights, all those judges with commissions, all those employees and functionaries.
MR MASON: In Philip Morris and Capital Duplicators, if my memory stands me correctly, it is said, well, you have done it for section 90, now just move up two notches and do it for section 92, but the Court said no.
Your Honour, what we therefore submit is that if your task, as the Judge whose lot it has fallen to decide this application, is to predict the outcome of the foreshadowed claim by my friend to seek to reopen or to distinguish the cases, your Honour's prediction would be that that would be likely to fail, having regard to the reaffirmation of stare decisis, notwithstanding recognition of divergent reasoning and notwithstanding recognition of the fact that the reasoning was not in accordance in some respects with modern constitutional approach to matters.
Nevertheless, the four Justices in the majority said, "We will quarantine liquor and tobacco" and the three Justices in the dissent said, "There's no problem with section 90 if the goods are from home and abroad and if the tax falls equally upon them." and if one adds the fate in Seboa, the prediction would be as we submit.
There is a further principle and it is perhaps a separate one and the submission is, your Honour, that the principle of fidelity to the rule of law requires an individual Justice - and I suppose one has to add, including an individual Justice hearing a strike out - to respect a majority position of the Court or the position taken by the Court unless and until the Court can be persuaded to overturn. Now, that was the principle that their Honours said at page 593 in the passage I have already read. It is the principle stated by Justice Brennan in a passage from O'Toole v Charles David (1991) 171 CLR 232, at page 267, which I hand to your Honour. In the middle paragraph, after having spoken adversely to the declaratory theory of law in the first paragraph, his Honour said:
A judge who participates in the creation of a judicial precedent, no less than a judge who dissents, is bound by the precedent created so long as it remains the law. The reasons for judgment which contain the ratio are not mere records of individual judicial opinion which the author is free to repent and withdraw: the investing of the ratio with the character of law flows not from the authority of the judge but from the authority of the court. It follows that only the court can change the law so made. In this Court, in order to preserve an appropriate balance between the desirability of certainty in law and the exigencies of change -
then the Evda principle is stated.
Your Honour, what we therefore submit is this, that Capital Duplicators stands as authority - as a decision of the Court by way of direct ratio and precedent for the proposition that the tobacco and liquor line of cases, whatever they decide and for whatever reason they so decide, are not to be reconsidered.
HIS HONOUR: Ever.
MR MASON: That is based upon reliance which is a reliance that has continued.
HIS HONOUR: It is not to be reconsidered ever, notwithstanding the fact that they suggested that a sufficient magnitude to deny the regulatory character of the law could lead to a new characterisation.
MR MASON: No, I do not say not to be reconsidered ever but certainly not to be reconsidered - - -
HIS HONOUR: Three years.
MR MASON: Three years after the event. With respect, what your Honour said about the magnitude - I have not made myself plain as to what the point we are making is. The two Justices who have regard to the magnitude, Justices Brennan and McHugh, they say that notwithstanding that we, in Philip Morris, were in dissent because of the magnitude aspect - - -
HIS HONOUR: That is so but that is in a case where it was $50 plus 25 to 30 and then in Capital Television it was 10 plus - what was it in Capital Television?
MR MASON: Forty in Capital.
HIS HONOUR: Forty per cent?
MR MASON: Yes, but Capital was videos. I mean, that was the point. But they joined with the two Justices who saw the regulatory purpose in liquor and tobacco and they said - - -
HIS HONOUR: They failed the hint, did they not?
MR MASON: Pardon?
HIS HONOUR: Do you not read that, on 593, as giving a hint that the magnitude of the fee is relevant to the characterisation of it as of a regulatory character or not?
MR MASON: No, because they go on in the last six lines of that first paragraph to say that that hint may grow into fruition with respect to petrol, and they discuss H. C. Sleigh but they draw the very quarantining that is the point I am seeking to make. They are saying although we were in the minority in Philip Morris - - -
HIS HONOUR: You may be right but at the moment I am inclined to think that this is a matter that should be argued.
MR MASON: My submission is that the Court, as a court having ruled as a principle that tobacco and liquor are to be treated as a quarantined situation where, for whatever reason - and discordant though it be - they be accepted, then a single Justice of the Court would be obliged either to predict that that will be the same situation or, alternatively, to respect that unless the Court overturned it, and the Court could overturn that view but through the mechanism of an appeal.
HIS HONOUR: Has there been any case like this, at least in recent times, where there has been a pre-emptive strike-out application in a constitutional case where the matter has been struck out and there has been then an appeal which has, in effect, become the substantive matter before the Full Court?
MR MASON: I am trying to think whether any of the famous litigants in person of recent years have gone on appeal or whether fate of hand of a single Justice has been enough. I cannot say that I can remember any decision where that has happened.
Can I say this, your Honour: if your Honour struck the matter out on the basis that your Honour considered that that is the proper response to this particular history of these challenges and if there were an appeal from that decision, obviously those on our side of the record would have to give consideration as to whether, if the matter had to go to a Full Court, they wished the issue to be determined in that event on a strike-out basis or on a demurrer basis. I say that not in any sense to deflect your Honour from what we submit is the correct disposition of this application and to the extent that your Honour is considering a choice, a discretion, we do rely upon the fact that these plaintiffs have gone out of business and have paid not a cent of duty and we submit that that is a factor where delay is a matter of concern.
HIS HONOUR: There is a power under the rules which I exercised in a case of Turner to refer matters to a Full Court so that a party does not lose strike-out argument but as a I read the rule, that is confined to prerogative-type relief. Is that correct? It is Order 55, I think, rule - - -
MR MASON: Section 18 would give your Honour the power but Order 55 rule - - -
HIS HONOUR: I think it was Order 55, rule 2. As I read that, that is all in the context of prerogative-type - - -
MR MASON: Yes. Section 18, your Honour, providing that:
Any justice of the High Court sitting alone, whether in Court or in Chambers.....may direct any case or question to be argued before a Full Court - - -
HIS HONOUR: Why would one take that course? If one reached the view that this was not a proper matter for striking out, why would one take that course as distinct from simply allowing the matter to take its ordinary course for the argument of the constitutional points on their merits? Do you lose any strategic or practical advantage by that ordinary course that you would retain if I were to refer the matter to the Full Court? My general feeling is that judges should do their own duty and when an application comes before them they should do their best to reach the correct decision and to finalise the matter. There is the specific rule in the case of the prerogative-type process. You have, in a novel procedure - at least as far as I know - taken this pre-emptive move. If it is good you will get your order. If it is not good, it does not seem to me that I would do anything to protect your client in any way differently than would be the case if you had the appeal heard in its ordinary course by referring this motion to the Full Court.
MR MASON: It may depend, of course, on your Honour's reasons. If your Honour's reasons were, in effect, as to the procedure for dealing with the sort of problem one has - - -
HIS HONOUR: I certainly would not intend to, at least as I presently think, go in and pre-empt the decision on the substantive matter because that is at the heart of my anxiety about the pre-emptive strike. I have an open mind and I do not want to close it by anything I do or say or hint.
MR MASON: Yes. Our concern would be, (a) in regard to the particular circumstance of this case and, (b) having regard to the nature of the challenge that there not be any period of prolonged uncertainty about the issue.
HIS HONOUR: That is a reason for moving for expedition of the hearing of the appeal if this application fails and you may have some grounds by the fact that the present plaintiffs have gone out of business and you have not got any duty and it is desirable that the matter be cleared up one way or the other.
MR MASON: Yes.
HIS HONOUR: But that could be done on an application for expedition and it does not need any reference by me to the Full Court.
MR MASON: Yes. If your Honour rejected our application or accepted my friend's application that our summons be referred to the Full Court, as I say, I would anticipate that we would move to file a demurrer and set it down immediately or, alternatively, and perhaps at the same time, we would have discussions with my friend about a stated case which would set out - and I am sure there would be agreement in this situation on the relevant facts. But either way, I think one would be looking at a week before the paperwork, but only a week before, as it were, the paperwork were in order to have the matter determined not on a strike-out basis but on a final basis by the Full Court. I do not, in saying that, resile from what I submit is to be the proper case where - - -
HIS HONOUR: But why, just departing from the matter - and I realise you have put your arguments fully - is that not the best course? It is a constitutional point. A statute has been changed. It secures the opinion of the Full Court. The single Justice who would otherwise be disqualified can participate in the Full Court. There is no prejudgment in any way as is, even in a minor way, necessary to resolve this point and it was a procedure that was always available to you. Why is that not the correct, normal procedure? You cannot point to a single case where this pre-emptive endeavour has been used.
MR MASON: Because, your Honour, it assumes the very matter in issue by putting the question in that way, because you assume that the point of distinction my friend wishes to raise is a tenable point of distinction, having regard to the approach that the Court has taken in this matter.
HIS HONOUR: Yes. Well, you argue it is not, but to reach that conclusion may take more than the consideration and even lengthy consideration that was talked of in General Steel. It is nuances that do not entirely attract me at the moment.
MR MASON: Perhaps what emerges is there are perhaps three categories of case: the case where it is fundamentally a hopeless point; whether it is a new point or an old point, the case where it clearly is an arguable point and maybe there is a middle area - although we do not concede this - maybe there is a middle area where, for reasons of the proper ordering of the Court's business and the concern about excluding a judge by the process from hearing the matter, it becomes relevant in the exercise of a discretion to have regard to that factor. That would appear to be, in effect, what is emerging from the dialogue.
HIS HONOUR: You do not contest that that is a matter relevant to be considered?
MR MASON: No, I do contest - I do submit that at the end of the day the duty of the Judge whose jurisdiction is invoked and the duty to respect the decision of the Court as it presently stands would be to have regard to the application without being concerned about whether in so doing that Judge creates difficulty in some later proceedings. Because if the matter is struck out there will not be any later proceedings, except an appeal - - -
HIS HONOUR: But may that not have this practical result: assume there is only one Judge resident in a particular State and that Judge would normally - - -
MR MASON: I am sorry, "Assume there is only" - - -
HIS HONOUR: - - - one Judge of the High Court resident in a particular State. That would mean that a party, by making application to that Judge, whose views might be known on the course of the litigation before, could, effectively, secure the removal of that Judge from the Bench.
MR MASON: No. Only if that Judge were convinced the matter should be struck out and one would assume that that Judge would apply correct principle and if he or she did not would be correctable.
HIS HONOUR: But correctable by an appeal where the Judge does not participate.
MR MASON: That is the fate of having a power - that is the consequence of allowing first instance matters to be commenced in this Court.
HIS HONOUR: That is so, but is it not a reason of convenience for saying where there is another procedure which takes the matter, if necessary, with expedition to a Full Court by demurrer or by stated case, that where at least the matter is not a hopeless case and it is not seeking to reventilate something that has been determined recently and on the same material or basically the same material, that that is the course that should be followed because the alternative course that you have adopted in this novel procedure of pre-emptive strike removes from participation one of seven Justices of the High Court of Australia.
MR MASON: No, on the facts that your Honour has put to me, the strike out would be refused anyway because your Honour has put into the facts an arguable case situation. If that is so, the strike out fails. So, your Honour has not pre-empted that Judge.
Your Honour, I have been reminded of one case where what we were talking about has happened and that is Coe. In fact, probably both Coe Cases qualify for this remark. In 1979 there was a Coe decision which raised, I think, from recollection, the question of sovereignty which was heard at first instance by - - -
HIS HONOUR: Chief Justice Mason, was it not?
MR MASON: Yes, as a single Judge, I think, yes, and then went to a Full Court. About two years ago there was another Coe Case - a different Coe, I think it was Mr Coe's sister brought proceedings which were struck out by Chief Justice Mason sitting alone.
HIS HONOUR: So, he was the single Justice on both cases.
MR MASON: He was, yes, but he relied upon the Full Court decision the second time as strengthening his arm, as it were. There has been an appeal lodged from that decision but it has not been prosecuted. So each of those cases, in one sense, is an example of that. The second case, in particular, was presented as, as it were, a constitutional-type issue. Walkers Case, again I am reminded - another judgment of Chief Justice Mason recently, Walker v New South Wales reported in the Commonwealth Law Reports was a first instance proceeding in this Court. Mr Walker had been convicted and was prosecuting an appeal through the New South Wales system but he commenced separate proceedings in the High Court seeking to have, in effect, the Crimes Act declared invalid as not recognising native law of justification for murder and Chief Justice Mason struck out that claim. So, there are examples. I think I have covered all - - -
HIS HONOUR: Yes, thank you, Solicitor. Mr Jackson.
MR JACKSON: Your Honour, our learned friend's argument commences by saying that the Court should say, "Enough is enough". So do we and that is in relation to the level of the tax that has been imposed. Might I hand to your Honour two documents? One is an outline of submissions; the other is a draft of a case stated.
HIS HONOUR: Has the Solicitor seen the draft stated case?
MR JACKSON: Your Honour, I gave it to them this morning. It rather follows what was said in Coastace - the one used in Coastace - although not exactly the same.
HIS HONOUR: I see. I would not myself be stating such a case. If you were successful and I refused the application, I would simply note that such a stated case has been prepared and would be left to the parties to consider it.
MR JACKSON: I do not suggest your Honour would state a case today in the matter. What I do suggest is that your Honour should dismiss the application but the reason for doing so being that the matter is one that should be dealt with by the Full Court. Your Honour, in that regard, may I say - I am sorry, your Honour is reading my outline of submissions, I think.
HIS HONOUR: What do you say in relation to the point that you have no standing to raise the complaint about the 100 per cent?
MR JACKSON: Your Honour, that is true as such as far as it goes but what we say about that is that if one looks at what has happened in relation to the Business Franchise Licences Act and the rate of tax that is imposed pursuant to it, the fact that there has been a further increase in relation to it makes it even more important for the Full Court to consider the matter. It is not definitive on the question, of course, but it shows that the tax is not going down and the issue is not likely to go away. That is supported by the enthusiasm one sees in the budget papers accompanying the increase to 100 per cent where it is used simply as a revenue raising device to ensure that levels of stamp duty on other transactions will be kept the same as the other States.
HIS HONOUR: But as I understand it, it was not contested by those of the Court who upheld the previous submissions of the same character as those that have been advanced today, that it was a revenue device. They accepted that this was a revenue device.
MR JACKSON: Yes, your Honour, I accept that. What I am seeking to say though is that that was done in the context of a tax at a much lower level and in Coastace, 30 per cent and then you will see in the X-Rated Videos Case, Capital Duplicators, 40 per cent, and I am talking about taxes that are really effectively double that and more than double that in one case.
HIS HONOUR: What was it in Dennis Hotels, do you remember?
MR JACKSON: I can tell your Honour in just a moment.
HIS HONOUR: Yes, if that can just be checked because it seems to have crept up.
MR JACKSON: Four or 12 per cent, something of that order, I think.
HIS HONOUR: It was 25 per cent by the time of Philip Morris; 30 per cent by Coastace; 40 per cent by Capital Television; 75 per cent by the time of your clients and 100 per cent now.
MR JACKSON: Yes. You will see, your Honour, in the draft case stated, it is set out in paragraph 12 actually, what the rates have been. One of them, we have not quite got the Act that did it. That is in relation to tobacco. Your Honour asked me about the earlier cases. In Dennis Hotels it was 6 per cent; Dickenson's Arcade, 21/2 per cent; Coastace, 30; Philip Morris, 25. I am sorry, my learned friend suggests that in Dickenson there may have been a sliding scale, 21/2 up to 30, and I think that is right, your Honour.
Your Honour, could I deal with a couple of things dealt with by my learned friend. The first concerns the majority decision in Capital Duplicators 178 CLR. Your Honour has not been taken yet to page 597. What your Honour will see is that the judgment of the four members of the Court, the joint judgment, it was really an amalgam of views, a kind of coalition of views which arrived at a particular result without there being the rejection of any of the particular views. What your Honour will see, for example, if I can go back for just a moment, to page 591, the passage at the bottom of the page on which our learned friends rely in saying there are some grounds for treating tobacco and alcohol products - well, your Honour, that reflects what was said by Chief Justice Mason and Justice Deane who were two of the members of the majority.
But equally, if one goes to page 597, we would say if your Honour looks at the first new paragraph on that page and throughout it, ono does not see a rejection of the views of Justices Brennan and McHugh in relation to the question of the relevance of the quantum of the fee. The short feature that one sees from the judgment of those four members of the Court is that their Honours arrived at a result but leaving open questions such as the relevance of the level of the fee ultimately to the question whether it was an excise.
Your Honour, could I also say two further things? The first is this, that the concept that the licensing fees of this kind are not a tax on goods in terms of being an excise simply because they are imposed in respect of sales in a very short period in a particular case beforehand is one that does, with great respect, have its odd conceptual features because the amount of the tax is directly related to sales that took place a month or up to two months beforehand.
The second feature about it is this, that if one says that in some way tobacco and liquor are to be in a special category, the first thing we would say about that is that that itself seems rather odd, with great respect, because they are the very substances in relation to which duties of excise were imposed immediately prior to Federation. That that is so appears from what was said in Philip Morris 167 CLR by Justice Dawson where he was summarising the position prior to Federation. Your Honour will see that at page 459.
HIS HONOUR: Yes. This is the criticism of the special category theory?
MR JACKSON: Yes, your Honour.
HIS HONOUR: That does not apparently state the present law. The majority has embraced the special category theory.
MR JACKSON: Your Honour, it is a loose embrace, if I could put it that way, with respect, and one of recognition rather than affection.
HIS HONOUR: Many relationships are so founded.
MR JACKSON: Some commence that way and grow, or grow apart.
HIS HONOUR: Many endure too, Mr Jackson.
MR JACKSON: Indeed, your Honour. I will not attempt to say another word in response to that. Your Honour, I am afraid I have just lost the passage having said that but - - -
HIS HONOUR: Page 459 you were taking me to, "Are liquor and tobacco in a special category?"
MR JACKSON: Yes. It is not correct actually, your Honour.
HIS HONOUR: Well, you tell me it was before Federation.
MR JACKSON: Your Honour, I will come back to it but what essentially he says is simply this, that what one sees is that they are the very substances
on which the duties of excise were imposed prior to Federation. Actually, your Honour, I referred to Philip Morris. It should have been Capital Duplicators 178 CLR, and the particular reference being at page 606 at the bottom of the page. The last four lines on page 606, going over to
about the middle of page 607. Your Honour, that is the first point we would make about it: it does seem very odd that tobacco and
liquor or taxes in relation to their sales are not duties of excise when they are the very things, the very substances that attracted
duties of excise prior to Federation.
The second thing, your Honour, is this: if one endeavours to see what is the basis for saying that tobacco and liquor do fall into some different category, the reasons are those expressed by Chief Justice Mason and Justice Deane in Philip Morris at page 440 of that case and, if I may say so with respect to their Honours, the reasons are a little elusive. What their Honours say appears in the paragraph commencing about point 7 on the page, commencing, "Liquor licensing has a unique history". Now, that goes over to the top of the next page and it is said there, they "have like characteristics which invite regulatory control". That seems to be it. Your Honour, so too, one might have thought, would be pornographic videos and things of that kind.
At page 459, your Honour will see an observation by Justice Brennan commencing at about point 4 on the page which reflects what your Honour said earlier that:
the Constitution -
in terms -
makes no distinction among commodities for excise purposes.
HIS HONOUR: His Honour has come round, according to the passage that I was taken to in Capital Duplicators, to accepting that that is a special category that is recognised by the law.
MR JACKSON: What your Honour will see at the bottom of page 591 in that regard, what was said is no more than that:
For one thing, there are some grounds for treating tobacco and alcohol products -
and that is as far as it goes.
HIS HONOUR: There are "very strong practical reasons", it is not "some grounds". Well, that is for the rule of stare decisis in these matters.
MR JACKSON: Yes, and, your Honour, one - - -
HIS HONOUR: Can I ask you this, and this is a somewhat delicate matter but I did raise it because I think honesty requires me to raise it. This is at a long course, this litigation, and when I look to try to find the holding that is binding on me from Capital Duplicators, it is in a passage in a judgment which, I think it is fair to say, is an endeavour to try to retain the intellectual honesty of the Justices who have expressed opinions previously but to find a practical answer to the case. When I look at the Justices in the majority I see that Justices Mason and Deane are there and they are no longer members of the Court. Now, on the one hand, one does not like very much the notion that one just looks at who the Judges are but, on the other hand, that is a real factor. To what extent is that a matter that I can take into account or should not take into account.
MR JACKSON: Can I start one stage back if I may? A somewhat similar issue arose in a rather more politically charged atmosphere in the second Senate Representation of Territories Case because Justice McTiernan had gone and Justice Aickin replaced him. Needless to say, I had the harder side of the case to argue. But your Honour will see some references in there to the fact that a reason for overruling is not just the fact that the composition of the Court has changed but that is said in the context of one going; another one replacing him. I do not really think that your Honour would see in that any concluded view expressed. We would not seek to say - and, your Honour, it would be very difficult to say that the Court's decisions are all up for grabs every time there is - constitutional decisions are all up for grabs every time there is a change in the composition of the Court. But what does have to be looked at as a relevant factor, in our submission, is really the nature of the decision or the nature of the reasoning - let me put it this way - that goes to support a particular decision said to be binding.
HIS HONOUR: That was what I was really edging to, that if the Court had spoken with a clear voice and enunciated a coherent simple doctrine which appeared to speak and resolve a particular controversy in a very clear way then one can see the arguments for saying, "Well, on such matters, one should just accept it" but where, as here, the holding is quite complex, it does seem to me that at least realism requires that you take into consideration the fact that some of the compromises that were necessary to secure that holding may have changed. There may be new problems that Justice Gummow and I, for example, see in this area. One gets dissenting Judges, one gets a Full Court of a State saying that the dissenting opinions have great power. These are very strong reasons in my mind for saying this is a matter to be resolved by the Full Court, not by a single Justice.
MR JACKSON: Your Honour, if the position were - and if I could just use the analogy again - as was the case in the Senate Representation of Territories Case that exactly the same Act was being attacked a second time, your Honour would appreciate the difficulty becomes greater in seeking to have the Court look at it again. However, that is not the case here and it is not the case here because of the change in the level of the tax. That is something if I could say two things about. The first is that there is no doubt the level of the tax is perceived by at least some of the members of the Court as being a relevant matter. The second thing about it is that if one were looking at the position from, say, the position of Chief Justice Mason and Justice Deane at the time when they were deciding that case, it is not possible to say that they would have been prepared to maintain the tobacco/liquor distinction if they had been dealing with taxes at that level because it would have been a different picture being looked at altogether.
Your Honour, the last thing I would seek to say about the tobacco/liquor distinction is that it is very, very difficult to see what basis there is for it in reality, in our submission. Your Honour, the other feature which I would seek to deal which goes to a slightly different point is this, that our learned friend would categorise Justice Dawson's views as being with those of the other two members of the Court, Justices Toohey and Gaudron. Perhaps that is right, perhaps it is overstating the position just a little. But if that be the case then I think we would perhaps seek to add another basis of challenge to it and that is that the duty is either a duty of customs or a duty of excise and, in either case, section 90 would apply and that would be an issue that really has not been dealt with very fully in the cases at all.
HIS HONOUR: I could not deal with that. I would have to deal with the statement of claim as it currently stands.
MR JACKSON: Of course, your Honour.
HIS HONOUR: That is not a basis of challenge in the statement of claim.
MR JACKSON: No, your Honour, I am simply foreshadowing it and that if the matter does go to the Full Court then I think we would seek to add that as a basis of challenge also.
HIS HONOUR: Would you clarify for me the facts in the statement of claim? As I understand it, your clients had duty-free stores and they sold to overseas travellers but they also sold to members of the public who were not proceeding overseas.
MR JACKSON: That is so, your Honour.
HIS HONOUR: It is only in relation to the latter that the State seeks to secure its fee, is that correct?
MR JACKSON: That is as I understand the position, your Honour, because the way in which the Minister fixes the levels of tax is such that there was an exemption for sales that are duty-free ones, in effect. So, there might be a theoretical liability but the quantum of it is nothing for practical purposes.
HIS HONOUR: Yes. What do you say about the complaint that your clients have gone out of business, they have not paid any duty and that enough is enough and that this would bring it to a close, otherwise the State is in a very perilous position so far as actually making any recovery is concerned?
MR JACKSON: Your Honour, I suppose it may be possible to infer that one of the reasons why they have gone out of business is the inability to pay the tax. Your Honour, it is the fact they have gone out of business but that really should not prevent someone from being able to challenge the constitutional validity of the impost that makes them liable for - - -
HIS HONOUR: You say, if your arguments are correct, that they are not liable to pay the tax?
MR JACKSON: Yes, not at all.
HIS HONOUR: The fact that they have not done so is their right and if there is a contention that there is a need for some protection against their assets, then that is the subject of some later application with evidence?
MR JACKSON: There would be an application, your Honour, yes. One way of dealing with it is for the matter to be dealt with relatively expeditiously and, of course, we could not raise a thing against that.
HIS HONOUR: Yes, everybody is in favour of that. It is only the Chief Justice who has occasional qualms because he has the responsibility of the list.
MR JACKSON: Yes. So, we would submit, your Honour, the application is one which should be dismissed. Could I also say, your Honour, in relation to our application to have - I think it says "the proceedings" removed to the Full Court - your Honour, my learned friend said it is an application to have the present application removed to the Full Court. Your Honour, it covers that but it is rather wider and we would ask that there be a case stated for the consideration of the Court.
It would seem very difficult for your Honour to deal with that finally today. What we would propose is that if your Honour were minded to take the view that something along those lines was the appropriate thing, that the parties consult and the matter be listed again before your Honour or another Justice in due course.
HIS HONOUR: Yes, very well. Thank you, Mr Jackson. Yes, Solicitor.
MR MASON: The very matter of increase about which my friend seeks to use as a point of departure from the earlier case is in fact an issue of the very reliance which was the factor upon which stare decisis held so strongly and if it is a correct characterisation of the Capital Duplicator decision that, "Enough is enough in a sense that we are not going to extend this to any other category but you can keep liquor and tobacco", then the present application amounts to taking the benefit without the burden of that decision and the increase is but an act of detrimental reliance by the State which would strengthen the stare decisis hand rather than the converse.
The passage in Capital Duplicators at page 597 which my friend referred your Honour to in which the four Justices had regard to the size of the fee as a negative factor does not harm my position because they were there considering the X-Rated Video Act and, on my submission, they had very clearly quarantined tobacco and liquor and possibly petrol before they moved to the other.
HIS HONOUR: Within this Court, who were the Justices who had difficulty with the quarantine?
MR MASON: Justices Brennan and McHugh and they - - -
HIS HONOUR: They dissented in the earlier - - -
MR MASON: They dissented in Philip Morris but, we submit, came in line in Capital Duplicators as part of the "Enough is enough" trade off, as it were, and that is, in one sense, one of the ratios of that very decision.
The second Territorial Senators' Case to which my friend made reference is one in which - I cannot remember the Justices involved. At least two of the Justices in the minority in the first Territorial Senators' Case joined with the majority, having regard to the principle of stare decisis.
HIS HONOUR: Yes. I think Justice Stephen was one who - - -
MR MASON: Yes, and Justice Wilson, I think, but I cannot remember who they were. Our submission finally is that nothing in Philip Morris or Capital Duplicators suggests that any Justice, apart from Justices Brennan and McHugh, regard the level of the tax as of any relevance.
HIS HONOUR: Yes. Well, I will give my decision in this matter at a quarter past 12. The Court will adjourn until then.
AT 11.11 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 12.20 PM:
HIS HONOUR: This is an application in which both parties have urged upon the Court that enough is enough.
For the applicants it is said that a statement of claim should be struck out on the basis that it represents an attempted challenge to a settled and repeated holding of the Court with which it should not be vexed again, at least so soon after its last re-statement. Enough is enough.
For the respondents it is said that the taxes imposed on them represent a marked increase in the taxes previously held by the Court not to be a duty of excise, reserved by s 90 of the Constitution exclusively to the Parliament of the Commonwealth. What began as a rate of 0.4 per cent and 6 per cent respectively in Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177, and Dennis Hotels Pty Ltd v Victoria [1960] HCA 10; (1960) 104 CLR 529, became 25 per cent to 30 per cent in Philip Morris Ltd v Commissioner of Business Franchises (Vict) [1989] HCA 38; (1989) 167 CLR 399, 40 per cent in Capital Duplicators Pty Ltd v Australian Capital Territory [No 2] [1993] HCA 67; (1993) 178 CLR 561, and has now escalated to 75 per cent in the case before the Court. It has since been increased by New South Wales legislation in a way that does not affect the respondents (who have ceased business) to 100 per cent. What were sanctioned by earlier decisions as taxes are now clearly revealed as duties of excise. This Court should now say so. Enough is enough.
Factual background
The facts can be stated shortly for present purposes. The State of New South Wales and other respondents, as applicants on this summons, move the Court for an order that a statement of claim, filed in the original jurisdiction of the Court, should be struck out on the ground that no reasonable cause of action has been disclosed. For the purposes of the application, the facts to be accepted are these: At the times referred to in the statement of claim Ms Ngo Ngo Ha and Ms Sokhieng Lim, the plaintiffs, who are the respondents to this summons, carried on business respectively in Cabramatta and Hurstville, near Sydney in the State of New South Wales. They operated duty-free stores. Affidavit evidence shows that the respondents went out of business at the end of 1994 and early 1995 respectively. It is claimed, on the part of the applicants, that Ms Ha and Ms Lim have paid no franchise fees and no taxes on tobacco sales made from their stores.
Mr Bruce Buchanan, the second applicant in the summons, is the Chief Commissioner of Business Franchises Licences (Tobacco) for the State of New South Wales ("the Commissioner"). The Commissioner is appointed pursuant to the Business Franchise Licences (Tobacco) Act (NSW) ("the Act"). Mr R.G. Smith, the third defendant in the action, the third applicant on the summons, is the Director, Compliance and Delegate of the Commissioner ("the Director"). The Director is authorised by the Act to assess amounts claimed pursuant to section 47 of the Act and to demand payment of such amounts from persons from whom they are alleged to be payable. Ms Ha and Ms Lim, in the course of their businesses, sold cigarettes to overseas travellers upon which State taxes are not claimed. However, they also sold cigarettes to members of the public in New South Wales. The applicants contend that the sales to the public are liable to the payment of franchise fees and taxes imposed by the Act. At the relevant times, these stood at $10 for the franchise fee and an equivalent of 75 per cent of the value of tobacco sold, together with a further amount by way of penalty equal to twice the amount of 75 per cent of the value of tobacco sold, less any remissions that were applicable.
The Director issued to Ms Ha and Ms Lim notices of assessment claiming specified sums under the Act. These sums have not been paid. The notice of assessment in the case of Ms Ha claims an amount of $1.4 million approximately. The notice in the case of Ms Lim claims an amount of $0.9 million approximately. Ms Ha and Ms Lim have filed their statement of claim in the original jurisdiction of this Court, contending that they are not liable to pay the amounts demanded, or any of them. They so assert upon the ground that the relevant sections of the Act upon the basis of which their liability is said to arise (which they identify as sections 28, 29, 30, 34, 36 to 41 and 45 to 48) are invalid because they impermissibly impose duties of excise. By s 90 of the Constitution such duties of excise are reserved exclusively to the federal Parliament.
Motion for summary dismissal of a constitutional challenge
Ms Ha and Ms Lim seek a declaration that the Act is, to the extent challenged, invalid, of no effect and that the notices of assessment issued to them are likewise invalid and of no effect. The claims which they make involve the interpretation of the Constitution, s 90. In accordance with s 78B of the Judiciary Act 1903 (Cth), notice of the proceedings before the Court was given to the law officers of the Commonwealth, State and Territories. No other party sought to intervene in the proceedings.
The applicants now move for summary dismissal of the statement of claim pursuant to O 26 r 18 of the Rules of Court. That rule reads, relevantly:
(1) The Court or a Justice may order a pleading to be struck out on the ground that it does not disclose a reasonable cause of action...
(2) In that case, or in case of the action...being shown by the pleadings to be frivolous or vexatious, ...a Justice may order the action to be stayed or dismissed, or judgment to be entered accordingly, as is just.
The argument for the applicants is that the point involved in the statement of claim is bound to fail because of the series of authoritative holdings of the Court to which I have previously referred. Specifically, it is said that the New South Wales Act in question was considered by this Court in Coastace Pty Ltd v New South Wales [1989] HCA 37; (1989) 167 CLR 503, where the Court held that such Act was indistinguishable, for constitutional purposes, from the Victorian Act which had been considered and upheld in Philip Morris v Commissioner Business Franchises (Vic) [1989] HCA 38; (1989) 167 CLR 399. In that case, the Court by a majority held that the Victorian Act did not impose an excise duty. The same conclusion was reached in Coastace in respect of the Act of New South Wales as it then stood. The applicants argued that, on that footing, the statement of claim was bound to fail. They should therefore be relieved from being troubled by it.
Applicable principles of law and practice
The strike out application raises once again the principles which govern a claim for peremptory relief such as is here sought. I take the applicable principles to be:
1. The rule of law requires that, ordinarily, a claim should be heard on its merits in open court after all pleading and interlocutory proceedings have been completed. The jurisdiction to strike out a claim must be sparingly used. It must be conserved to a very clear case, although the establishment of that case may take time and argument. (Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130)
2. The striking out of a constitutional challenge is available as is demonstrated in a number of cases. e.g. Coe v Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland [1979] HCA 68; (1978) 52 ALJR 334, (1973) 53 ALJR 403) However, such jurisdiction must be exercised with a proper degree of caution, at least where there has been an interval since the last holding on the point in issue or where there is a change of potential relevance in the legislation which is impugned.
Amongst the reasons for particular hesitation in striking out challenges to the constitutional validity of a law are the fundamental character of the Constitution as the basic law of the nation and the rigidity of the procedures for securing formal amendments. Windeyer J, in R v Phillips [1970] HCA 50; (1970) 125 CLR 93, mentioned these and other considerations, invoking the words of two Justices of the Supreme Court of the United States of America in doing so. Windeyer J said, at 114:
scrupulous regard for language need not dispel a remembrance of something that Holmes J. once said in the Supreme Court of the United States....Speaking of certain provisions of the American Constitution that learned Justice said: "Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth": There are times when we can say of our Constitution, as Frankfurter J. said of the Constitution of the United States: "While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning":
3. Adherence to the rule of law also requires that all Justices of this Court, including a single Justice dealing with a practice summons, should observe the holdings of the Court where they state the applicable law. O'Toole v Charles David Proprietary Limited (1991) 71 CLR 232 at 270. This Court has accepted that the principle of stare decisis is applicable to constitutional cases. In the context now under consideration, the Court has laid particular emphasis on the importance of that principle in adhering to past holdings and in applying what it has taken to be settled principles. In Capital Duplicators Pty Ltd v Australian Capital Territory [No. 2] [1993] HCA 67; (1993) 178 CLR 561 at 591-2, the majority, comprising Mason CJ, Brennan, Deane and McHugh JJ said, speaking of the State tax and excise duty line of cases"
"...[T]here are very strong practical reasons why the rule of stare decisis should be observed in relation to those decisions. Not only was the authority of Dennis Hotels acknowledged in Bolton v Madsen, but also that decision was itself followed in the unanimous decision in Anderson's Pty Ltd v Victoria. Later, in Dickenson's Arcade, the Court refused to depart from Dennis Hotels and, subsequently, in H.C. Sleigh, the Court followed and applied the two earlier decisions. Since then, the Court has twice refused to reconsider the correctness of Dennis Hotels and Dickenson's Arcade.
4. Nonetheless, a party may always ask the Court to reconsider its past authority, including in matters of constitutional law. The Court will sometimes, for good cause, do so. It has devised a procedure under which leave must be sought to that end. See Evda Nominees Pty Ltd v State of Victoria [1984] HCA 18; (1983) 154 CLR 311; cf John v Federal Commissioner of Taxation (1989) 166 CLR 411 at 438. My own tentative preference is for the minority view expressed in Evda by Deane J, repeated by his Honour in Philip Morris (1989) 167 CLR 388 at 409. But that matters not in the present application. Ms Ha and Ms Lim intend, if necessary, to seek leave of a Full Court to challenge the correctness of the line of authority, starting with Dennis Hotels. The grant or denial of such leave is reserved to a Full Court. It cannot be given by a single Justice in a practice summons such as the present. At least where the foreshadowed request is not manifestly hopeless and clearly doomed to fail, its fate must be reserved for decision to a Full Court.
A Full Court may hear a constitutional challenge in one of the following ways:
(a) by reference of a matter to the Full Court by a single Justice pursuant to section 18 of the Judiciary Act 1903 (Cth). cf Lindon v The Commonwealth [No 23], unreported, 6 May 1996, at 15. This was one position which Ms Ha and Ms Lim adopted by their own summons but as a fallback to their primary submission that the applicant's summons should be dismissed;
(b) by the single Justice adopting the course of stating a case for the opinion of the Full Court pursuant to section 18 of the Judiciary Act. This was another course sought by Ms Ha and Ms Lim;
(c) in cases of prerogative constitutional relief by a reference of the application to a Full Court pursuant to O 55 r 2. This was the course which I adopted in the recent decision in Re Turner; Ex parte Homestead Award Winning Homes Pty Ltd, unreported, 19 April 1996; or
(d) by dismissing the application for peremptory relief so that the statement of claim will take its ordinary course and be heard by a single Justice or otherwise dealt with as the Court orders, having regard to its decision as to the course which is expedient; and
5. It is the Court's practice that on matters raising constitutional questions the Court endeavours to ensure that all available Justices sit to participate in their disposal. Doubtless this rule reflects the fact that the answers to such questions are usually important, affect parties other than those in suit, can sometimes involve differences of judicial view and occasionally result in changes of doctrine over time, having regard to new social circumstances, new constitutional insights and the participation of new Justices appointed to the Court. This is another reason, as it seems to me, for particular caution in striking out a statement of claim raising constitutional controversies. The Justice who does so might then be disqualified from sitting in the substantive appeal. If a party were to contest such an order, that Judge could not sit in an appeal from the order of striking out if that process were accepted by the Full Court as presenting the constitutional controversy for substantive decision.
Conclusion: the constitutional challence is not unarguable
I do not say that cases would not arise, including in constitutional matters, where the power provided in general terms by O 26 r 18 would be appropriate and would be used, as indeed such powers have been. If, for example, a constitutional claim or defence were raised within a very short time of a previous holding on the same point, the impugned statute were unchanged or substantially unchanged, and the other circumstances were relevantly identical, such a constitutional question might be seen as appropriate for peremptory dismissal.
However, that is not the present case. Nor is it, in my view, a case of a manifestly hopeless argument or one so clearly bound to fail that it should be terminated now without a hearing on the merits. Ms Ha and Ms Lim contend that the Act in its present form is distinguishable in principle from the statutes which were considered in the previous authorities which I have mentioned. The principal point of distinction upon which they rely is the fee which is imposed by the State of New South Wales. They contend that this is now so great as "to deny the regulatory character to the law which imposes it". In such a case they argue that "the validity of the fee...requires close consideration" in determining the characterisation of the law as a permissible State tax or a forbidden duty of excise. Capital Duplicators Pty Ltd v Australian Capital Territory & Anor [No 2} [1993] HCA 67; (1993) 178 CLR 561 at 593).
I acknowledge the powerful arguments put for the applicants that this Court, after such a long series of decisions, has recognised the need for a clear rule. That it has "quarantined" the case of tobacco and alcohol and has treated those products as presenting a special case. The path to that position has been a rocky one. There have been strongly expressed dissenting opinions. Thus Brennan J and McHugh J earlier criticised the unconceptual character of the suggested distinction and its apparent defiance of history which discloses that, at the time of Federation, taxes on alcohol and tobacco were the very duties of excise in which the colonies were engaged and which, by section 90 of the Constitution, were arguably thereafter to be reserved to the federal Parliament.
The dissenting opinions have recommended themselves, as a matter of logic, to State appellate courts which nevertheless felt bound to follow the contrary opinions of the majority, (see e.g. Seboa v Commissioner Business Franchises [1993] VicRp 63; [1993] 2 VR 124) in respect of which special leave to appeal was refused by this Court (see (1994) 5 Legal Reporter, Special Leave, 4). Having been recently re-endorsed in Capital Duplicators, including with the participation of the Justices who formerly dissented from that opinion, there may be strong arguments for urging upon the Court that it should not re-open the question but should hold itself bound by the statements of principle set out in that case. However, it cannot, in my opinion, be said that the argument is clearly without merit or bound to fail. Nor can it be concluded that it is such as should not even be considered by a Full Court. At least in some of the opinions to which I have been taken, the quantification of the State or Territory tax has been said to be a factor relevant to the characterisation of the tax as a duty of excise or not. I would not foreclose Ms Ha and Ms Lim from advancing that argument. The issue is a serious one for them. It is also important for the revenue of the State. The point is by no means unarguable.
Ancillary matters
I have given thought to the proposal that I should simply return this present application before a Full Court. However, I see no utility in doing so. I would emphasise that, in my view, the State and the other defendants will have a full opportunity to advance before a Full Court all of the arguments on the merits which were advanced, necessarily in an abbreviated way, before me today.
I would also emphasise that, for my own part, I have reached no final opinion on the merits of any of these arguments of substance. It is enough that I consider the points to be arguable such that the statement of claim and the proceedings should take their ordinary course.
The plaintiffs have prepared a draft stated case for the opinion of a Full Court. However, as this document was only produced to their opponents this morning, it is not possible for me to consider it with appropriate assistance and, if suitable, to settle its terms. The parties, especially the State, foreshadowed the urgency of the case, the State relying upon the fact that Ms Ha and Ms Lim have ceased to carry on business and that they have not, as it is said, paid any of the taxes levied on them. Any application for expedition or for other or different relief to protect the State's claims upon the assets of Ms Ha and Ms Lim will have to be the subject of separate proceedings. I make no orders in respect of any of those suggestions.
Orders: application dismissed
The orders which I make are:
1. The defendants' summons to strike out the plaintiffs' statement of claim is dismissed with costs;
2. The plaintiffs' summons for reference of the matter to the Full Court is dismissed;
3. The plaintiffs' draft stated case is referred to the Registrar's list to be re-listed after consideration by the parties. I am not to be regarded as part heard in that matter; and
4. Certify for counsel.
Are there any other orders that you seek?
MR JACKSON: No, your Honour.
HIS HONOUR:. Court will now adjourn.
AT 12.48 PM THE MATTER WAS CONCLUDED
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