McDonald v Commissioner of Business Franchises [1992] HCA 59

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. McDonald v Commissioner of Business Franchises [1992] HCA 59

ORDER Appeal allowed with costs. Set aside the judgment and order of the Appeal Division of the Supreme Court of Victoria and remit the matter to that Court to determine the matter in accordance with the judgment of this Court.

Cur. adv vult.

The Court delivered the following written judgment:—

Nov 25 Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

The respondent ("the Commissioner") by complaint and summons issued out of the Magistrates' Court at Melbourne sought an order for the payment by the appellant ("McDonald") of moneys claimed to be due to the Commissioner under the Business Franchise (Tobacco) Act 1974 Vic ("the Act"). The Commissioner, pursuant to s. 19B of the Act, sued to recover amounts allegedly "due and payable under an assessment" made under s. 19A of the Act. Section 19A(1)(d) of the Act prior to its amendment by the Business Franchise Acts (Amendment) Act 1988 Vic ("the 1988 Amendment Act") read as follows:

(1) If —

(d) the Commissioner has reason to believe that a person is carrying on or has carried on a business of tobacco retailing, tobacco wholesaling, petroleum retailing or petroleum wholesaling without having made an application for the appropriate licence under the Business Franchise Acts;

the Commissioner may make an assessment of the amount that in his judgment should have been paid had the application been made and that person shall be liable to pay that amount less any amount previously paid by a person in respect of an application referred to in paragraph (a), (b), (c) or (e) except insofar as he establishes on objection or appeal that the assessment is excessive.