McDonald v Commissioner of Business Franchises

The High Court of Australia heard an appeal from Noel Walter Alexander McDonald against the Commissioner of Business Franchises. The dispute concerned the Commissioner's recovery of sums allegedly due under notices of assessment issued pursuant to the Business Franchise (Tobacco) Act. The Commissioner had sued McDonald in the Magistrates' Court for recovery of approximately $368,499.60, asserting that the notices of assessment were duly served and that the amounts were therefore recoverable. The Magistrates' Court had found in favour of the Commissioner.

The central legal issue before the High Court was the construction and effect of section 19E(2) of the Business Franchise (Tobacco) Act, which the appellant characterised as a conclusivity provision. This provision, it was argued, purported to shut out argument regarding the validity of assessments. The appellant contended that the documents tendered by the Commissioner as notices of assessment were not, on their face, valid notices of assessment, notwithstanding their heading. Specifically, the appellant argued that the notices omitted a crucial reference to paragraph (d) of section 19A(1), which was the sole basis upon which a default assessment could have been made.

The appellant's argument focused on the fact that the notices of assessment were dated 11 September 1989, while the relevant amendment to the Act, which conferred the power to assess, came into operation on 1 December 1988. This meant the assessment was made some nine months after the power to assess arose. The appellant's objection to the tender of the documents was based on their alleged invalidity as notices of assessment, despite their appearance. The court was therefore required to determine whether the conclusivity provision in section 19E(2) precluded an examination of the face of the assessment documents to ascertain their validity.