Colonial Sugar Refining Company v Irving

JurisdictionUK Non-devolved
CourtPrivy Council
Judgment Date1905
Date1905
[PRIVY COUNCIL.] COLONIAL SUGAR REFINING COMPANY, LIMITED PLAINTIFFS; AND IRVING DEFENDANT. ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND. 1906 Feb. 8, 12; March 28. EARL OF HALSBURY, LORD MACNAGHTEN, LORD DAVEY, LORD ROBERTSON, LORD ATKINSON, and SIR ARTHUR WILSON.

Law of Australia - Power of the Commonwealth Parliament - Power to impose an Excise Duty to take effect from the Date of the Minister's Proposal - Commonwealth Acts, Nos. 11 and 14 of 1902 - Constitution Act (63 & 64 Vict (Imperial), c. 12), ss. 51, 90 - Construction.

On July 26, 1902, Excise Tariff, 1902 (No. 11), was passed by the Commonwealth Parliament, imposing certain uniform duties of excise, including a duty on manufactured sugar, the produce of Australia, as from October 8, 1901, the day on which the Minister had moved a resolution to that effect in Committee of Ways and Means of the House of Representatives.

On October 16, 1902, the Customs Tariff, 1902 (No. 14), was passed, which imposed uniform duties of customs as from the same date.

In a suit by the appellants to recover back excise duties on manufactured sugar collected from them between October 8, 1901, and July 26, 1902, on the grounds (1.) that it was ultra vires of the Commonwealth Parliament to impose them until the actual imposition of uniform customs duties; (2.) that the duties were imposed in a manner which discriminated between States:—

Held, that Excise Tariff, 1902, was intra vires of the Commonwealth Parliament under the true construction of the material sections of the Constitution Act (63 & 64 Vict. c. 12). Neither s. 90 of that Act nor any other section expressly or impliedly prohibited the imposition of uniform excise duties previously to that of uniform customs duties. After that event the power to impose excise duties was exclusively vested in the Commonwealth, and the power of the States in that respect ceased. Under s. 51 Parliament has power, in accordance with the usual practice, to impose the duties as from the date of the resolution (s. 4 of Excise Tariff, 1902):—

Held, also, that s. 5 of Excise Tariff, 1902, which allowed an exemption in the case of goods on which customs or excise duties had been paid under State legislation before October 8, 1901, is not a discrimination between States within the meaning of s. 51 of the Constitution Act, but is applicable to all the States alike, for a purpose which was temporary and necessary.

APPEAL from a judgment of the Full Court (September 4, 1903) on a special case stated by consent of parties in an action by the appellants.

The appellants are manufacturers and refiners of sugar, carrying on business at Brisbane. Between October 8, 1901, and July 26, 1902, they were called upon by the respondent, the Commonwealth Collector of Customs for Queensland, to pay sums amounting to 20,100l., in respect of the 3s. per cwt. excise duty on 6700 tons of sugar refined by them, of which 824 tons 3 cwts. had been refined before October 8, 1901, and the rest subsequently, having been at that date raw sugar or (as to 364 tons) in process of being refined. The whole of the 6700 tons was produced and manufactured in Queensland, and was on October 8, 1901, in the appellants' stores at Brisbane connected with their refinery, and no duty of customs or excise had been paid thereon, or was under the law of Queensland payable thereon before October 8, 1901, or at any subsequent time.

The appellants, disputing the liability to duty, deposited the 20,100l., under the provisions of s. 154 of the Excise Act, 1901, in the hands of the defendant as Collector, and on October 25, 1902 (after the passing of the Excise Tariff, 1902, and Customs Tariff, 1902), brought an action in the Supreme Court to recover back the amount deposited with interest, contending that the Excise Tariff, 1902, was ultra vires of the Federal Parliament.

A special case was stated by consent in the action, and on September 4, 1903, the Full Court (Griffiths C.J. and Cooper and Real JJ.) determined that the appellants were not entitled to recover, and directed judgment to be entered for the respondent with costs.

Cohen, K.C., Wise (K.C. of the New South Wales Bar), and Tyrrell Paine, for the appellants, contended that the Excise Tariff Act, 1902, was ultra vires of the Commonwealth Parliament, which was not authorized by the Constitution Act (63 & 64 Vict. c. 12) to impose duties of excise until uniform duties of customs had in fact been imposed, which did not happen until September 16, 1902. It was argued that before that date it was impossible...

To continue reading

Request your trial
101 cases
3 books & journal articles
  • Preliminary Sections
    • Nigeria
    • DSC Publications Online Nigerian Supreme Court Cases. 1967 Preliminary Sections
    • 12 November 2022
    ...Amobi v. The State (S.C. 624/64) unreported 127 Clough v. LN.W.R. (1871) LR. 7 Ex.26 271 Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369, 372. 212 Commissioner of Lands v. Arah (1954) 14 W.A.C.A. 510. 152 Commissioner of Police v. Ayiku. 5 W A C A 89 42 Connecticut Fire Insurance......
  • Cases referred to in 1967
    • Nigeria
    • DSC Publications Online Nigerian Supreme Court Cases. 1967 Preliminary Sections
    • 12 November 2022
    ...Amobi v. The State (S.C. 624/64) unreported 127 Clough v. LN.W.R. (1871) LR. 7 Ex.26 271 Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369, 372. 212 Commissioner of Lands v. Arah (1954) 14 W.A.C.A. 510. 152 Commissioner of Police v. Ayiku. 5 W A C A 89 42 Connecticut Fire Insurance......
  • Discriminatory Taxation in Light of Fortescue: Its Implications for the Development of Northern Australia
    • United Kingdom
    • Federal Law Review No. 42-1, March 2014
    • 1 March 2014
    ...90, 101 (Taylor J, with whom Kitto and Windeyer JJ agreed) and the ea rlier Privy Council decision in Colonial Sugar Refinery Co v Irving [1906] AC 360, 367: the rule laid down by the Act is a general one, applicable to all the States alike, and the fact that it operates unequally in the se......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT