Three judges, Fullagar, Kitto and Taylor JJ, used the highly formalistic criterion of liability approach (which has since been discredited) to decide this case. In this approach, the fees were not viewed as excise duties because the criterion of liability does not fall in a step between the production of the good and the receipt of the good by the consumer due to the backdating (per Kitto J). The payment of the fee is seen as occurring as part of business generally; also, because the fee is not payable at the time of the purchase of the liquor, and because the retailer may choose not to renew his licence, the fee does not necessarily become an indirect cost for the consumer. The distinction, therefore, is that the fees were imposed not on goods, but on licences, and thus not an excise duty. These three judges held that the fees were not excise duties and hence were not invalid.