David Jones Finance & Investments Pty Ltd v Commissioner of Taxation (Cth)

High Court of Australia Mason CJ, Deane and McHugh JJ David Jones Finance & Investments Pty Ltd v Commissioner of Taxation (Cth)

Cur. adv. vult.

Mason CJ, Deane and McHugh JJ

Mr Shaw:If the court pleases, this application is an appeal from a judgment given in the Federal Court by a majority in which the court held that s 177 of the Income Tax Assessment Act was ineffective in the Federal Court to prevent an investigation of an allegation that an assessment had been made in abuse of the Commissioner's power. And the court held that despite the decision of this court in Bloemen's case, it being said by the majority that the decision in Bloemen's case was given, I imagine one would say, per incuriam, because the question of the effect of s 75(5) of the Constitution and its relationship to s 39 of the Judiciary Act was not raised in that case, or argued, and this despite the fact that in the argument addressed to the court in Bloemen's case there was specific reference to the fact that jurisdiction which the court there involved, which was the Supreme Court of NSW, was a jurisdiction under s 39 of the Judiciary Act.

Mason CJ,

Mr Shaw, subject to hearing what you may have to say in response to objections that the respondent makes to the grant of special leave in this case, in particular to that part of the respondent's suggestion that in some way or other there was an agreement that bears on the matter, it may be to our advantage if we heard at this stage from Mr Walker.

Mr Shaw: If Your Honour pleases.

Mason CJ,

Yes, Mr Walker.

Mr Walker: May it please Your Honours. Your Honours, at the outset, the substantive matter which has been briefly adverted to by my learned friend is one which we have to concede is one of general public importance. It is a matter which affects certainly the judicial role in the administration of the revenue laws in an intimate and important fashion, and I do not wish to be heard to the contrary of that proposition. It is that this case is not an apt case for special leave by reason first of the fact that the case, in reality, has been settled.…