Case: Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32 ; (2008) 247 ALR 605 
Outcome: considered
The more so because, following the hearing of the motions, the High Court handed down its judgment in Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32 ; (2008) 247 ALR 605. The joint judgment of Gummow, Hayne, Heydon and Crennan JJ contained the following relevant observations: '[67] It follows from what has been said respecting s 177(1) that not only is it not a privative clause, but there is not the conflict or inconsistency between s 177(1), s 175 and the requirements of the Act governing assessment which calls for reconciliation of the nature identified in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The point sought to be made here respecting the relationship between ss 175 and 177(1) and those requirements was expressed in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 by Dawson J as follows: "The requirements of the Act which govern the making of an assessment do not produce any inconsistency with the provision that a notice of assessment constitutes conclusive evidence in recovery proceedings. That is because s 175 provides that the validity of any assessment shall not be affected by reason of the fact that any of the provisions of the Act have not been complied with. ... Having regard to s 175, there is no inconsistency, apparent or otherwise, between the requirements of the Act relating to the making of an assessment and s 177(1), and no reconciliation is called for. Indeed, as I have said, s 177(1) does no more than give evidentiary effect to s 175." [68] It follows that there is no scope here for the operation of the so-called Hickman principle. Futuris framed its case as if Hickman was engaged and by adoption of Dixon J's words: "... provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." But it was only the first mentioned consideration ("bona fide attempt") that was relevant at all in the judicial review proceeding. The notion of bona fides had the content explained earlier in these reasons and did not enter the case by the tortuous path of statutory construction and reconciliation with which Dixon J was concerned. [69] Something more should also be said respecting Richard Walter. That case decided first, that the Act permits the Commissioner to issue assessments on an alternative basis to different taxpayers in respect of the same income and, secondly, that s 177(1) does not limit the jurisdiction conferred by s 39B of the Judiciary Act . Neither holding is challenged in this litigation. [70] Various views were expressed in Richard Walter respecting the construction of and relationship between s 175 and s 177(1). Reference was made to the then accepted distinction between mandatory and directory provisions, and to what seems to have been some doctrinal status then afforded to Hickman. As to the first matter, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 has changed the landscape and as to the second, Plaintiff S157/2002 has placed "the Hickman principle" in perspective. Hence this appeal should be decided by the path taken in these reasons and not by any course assumed to be mandated by what was said in any one or more of the several sets of reasons in Richard Walter.' 13 Whether or not one agrees with their Honours' anterior findings at [59], and I do not, that (1) there was nothing to support any conclusion that the Commissioner engaged in 'double counting' with any knowledge or belief that there was a failure in compliance with the provisions of the Act; and (2) the reasoning in Australia and New Zealand Banking Group Ltd v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 was fairly open to the construction that it supported the course taken in making the second amended assessment, the High Court's decision in Futuris reinforces the conclusion in [8] above.