McDonald v Commissioner of Business Franchises

In the High Court of Australia, Nqel Walter Alexander McDonald sought special leave to appeal against a decision of the Court of Appeal of Victoria concerning the Commissioner of Business Franchises. The applicant's central contention was that the Court of Appeal had erred in its interpretation of the Business Franchise (Tobacco) Act, specifically regarding the ability to challenge the very existence of a statutory power to make an assessment.

The primary legal issue before the High Court was whether a challenge to the Commissioner's power to make an assessment at all constituted a challenge to the "due making" of an assessment, as interpreted by the Victorian Court of Appeal. The applicant argued that this interpretation, if allowed to stand, would prevent any challenge to the validity of an assessment where the assertion is that the Commissioner lacked the power to issue it in the first place, whether in recovery proceedings or statutory appeal processes.

The applicant's argument hinged on the interpretation of section 19E(2) of the Business Franchise (Tobacco) Act, which is in identical terms to section 177 of the Income Tax Assessment Act. This provision states that the production of a notice of assessment, or a document purporting to be a copy thereof, is conclusive evidence of the due making of the assessment. The applicant submitted that this provision was intended to make the assessment conclusive of its particulars and amount in recovery proceedings, but not upon a statutory appeal or review. Therefore, the applicant argued, they were improperly shut out from raising the fundamental issue of the Commissioner's lack of power to make the assessment in the first instance.