Finemores Transport Pty. Limited v. The State of New South Wales & Ors.

Members: Barwick CJ
Stephen J
Mason J

Jacobs J
Murphy J
Aickin J

Tribunal:
Full High Court of Australia

Decision date: Judgment handed down 16 May 1978.

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Jacobs J.: I find myself compelled by authority, of which no review has been sought, to conclude that the stamp duty purported to be charged under sec. 84G of the Stamp Duties Act on any certificate of registration of a motor vehicle pursuant to a new registration or transfer of registration cannot validly be so charged where the vehicle is used or intended to be used solely in the course of and for the purposes of inter-State trade and commerce. Registration of a motor vehicle is a condition precedent to use of that vehicle on the roads of

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ATC 4207

the State. A certificate of registration issues pursuant to the Motor Traffic Act and Regulations as an inevitable consequence of registration. Its coming into existence is merely an incident of registration. It is sought to charge a stamp duty upon the certificate as an instrument. In these circumstances the stamp duty can only be regarded as in substance a tax imposed upon registration. It is true that it is not imposed upon every registration but only upon every new registration or transfer of registration; but it does not seem to me that this can make any difference. A fee upon registration can consistently with past decisions be justified as an incident of a registration which itself is no more than regulatory. But when the permissible necessity for registration is taken as the occasion for the imposition of a charge which cannot be regarded as a mere incident of that registration then the charge itself cannot, in the light of the decided cases, be validly imposed in respect of the registration of vehicles used or intended to be used solely in the course of and for the purposes of inter-State trade and commerce. The charge is open to the same objection as the taxes and charges under the Motor Vehicles Taxation Management Act , 1949 (N.S.W.) and the Motor Vehicles (Taxation) Act , 1951 (N.S.W.) held in
Hughes and Vale Pty. Ltd. (No. 2) (1955) 93 C.L.R. 127 not to be validly applicable to vehicles engaged in inter-State trade and commerce and the fees held not to be validly applicable to such vehicles in Nilson v. The State of South Australia (1955) 93 C.L.R. 292 and
Pioneer Tourist Coaches Pty. Ltd. v. The State of South Australia (1955) 93 C.L.R. 307 .

The decisions which I have lastly mentioned purported to apply the decision of the Privy Council in Hughes and Vale Pty. Ltd. (No. 1) (1954) 93 C.L.R. 1, which overruled what are commonly referred to as the Transport cases . However, it should perhaps be borne in mind that in the various pieces of legislation which could not after Hughes and Vale Pty. Ltd. (No. 1) be regarded as valid it sufficiently appeared that their purpose and effect was to prefer the railways of the particular State as an inter-State transport operator over road transport operators engaged in trade and commerce into and out of other States. The legislation imposed a licensing system whereunder the inter-State carriage of goods by road could be prohibited. Thereby the legislation could operate directly to prohibit inter-State trade and commerce. Under the legislation creating the licensing system held invalid in Hughes and Vale Pty. Ltd. (No. 1) there was provision for a condition of a licence to be payment of tax based on tonnage/mileage but the tax was an incident of the licensing system and ``it is not in doubt that the object of these charges was to protect the railways in New South Wales from competition, as part of a system for `co-ordinating transport'''. See Hughes and Vale Pty. Ltd. (No. 1) , at pp. 7-8.

Although a tax upon the registration of vehicles used or intended to be used in the course of and for the purposes of inter-State trade and commerce as well as upon all other similar vehicles registered to use State roads could operate so as directly to prohibit the use of the vehicles in the course of or for the purposes of such trade and commerce, I would not be inclined to think that it did so operate unless the facts and circumstances disclosed that this was so. But those cases to which I have referred, decided after Hughes and Vale Pty. Ltd. (No. 1) , determined that they did so operate, and the conclusion did not depend upon an inference from the scale of the charges that the object thereof was that of protecting the railways in New South Wales from competition including competition in inter-State trade and commerce. In the present state of the authorities it must be concluded that the stamp duty cannot be validly levied.