Roxborough & Ors v Rothmans

In *Roxborough & Ors v Rothmans of Pall Mall Australia Ltd*, the High Court of Australia considered a dispute concerning the recovery of excise duties paid by tobacco manufacturers and distributors. The appellants, who were tobacco manufacturers and distributors, sought to recover excise duties paid to the respondent, the Commissioner of Taxation, under the *Tobacco Charges Assessment Act 1997* (Cth) and related legislation. The core of the dispute lay in whether these payments were made under a mistake of law, and if so, whether the Commissioner was legally obliged to repay them.

The High Court was required to determine whether the excise duties paid by the appellants were recoverable under the common law doctrine of recovery of money paid under a mistake of law. Specifically, the Court had to consider whether the payments were voluntary or made under compulsion, and whether the Commissioner had a defence to repayment, such as change of position. The central question was whether the appellants had a legal right to recover the moneys paid, notwithstanding that the payments were made in accordance with the statutory provisions then in force.

The Court, by majority, held that the excise duties were not recoverable. Gleeson CJ, Gaudron, Gummow and Hayne JJ reasoned that the payments were made under a mistake of law, but that the common law did not permit recovery in such circumstances, particularly where the payments were made pursuant to a statutory obligation. They distinguished the present case from situations where money is paid under duress or where there is a specific statutory provision allowing for recovery of moneys paid under a mistake. Kirby and Callinan JJ dissented, arguing that the payments were made under a mistake of law and that the Commissioner should be compelled to repay the moneys, as there was no statutory bar to recovery and the Commissioner had not established a defence of change of position.

Ultimately, the High Court dismissed the appeal, upholding the Commissioner's position that the excise duties paid were not recoverable by the appellants.