Case: R v Trebilco; Ex parte FS Falkiner &amp; Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 
Outcome: cited
The Tribunal next referred to the ' two stage process ' identified and discussed by Member Trowse in Re Filsell and Commissioner of Taxation [2004] AATA 1012 in the following context of his consideration of the implications of s 340-5(3) of the Administration Act: 'In the Tribunal's opinion, the language of the legislation requires a two stage approach. First, the decision-maker must decide whether the settlement of the liability will result in serious hardship. If that decision is favourable to the applicant, the discretion offered by sub-section 340-5(3) then falls for consideration. In reaching the decision to release in whole or part, the question to be addressed is whether, in all the circumstances, it is just and proper to provide the requested relief. Matters pertaining to the incidence and consequence of the tax and the effect of its exaction upon the affairs of the person will bear upon the issue of whether the relief is just and proper. Support for the two stage approach is to be found in the decision of the High Court in Rex v Trebilco; ex parte F.S. Falkiner &amp; Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 .' I have of course extracted s 340-5(3) of the Administration Act earlier in these reasons. I would respectfully seek to apply that principled approach. 24 Further in his reasons for judgment in Powell at 263, Hill J referred to the dictum of Windeyer J in Giris Pty Ltd v Commissioner of Taxation [1969] HCA 5 ; (1969) 119 CLR 365 at 384 concerning the need '... to be guided and controlled by the policy and purpose of the enactment, so far as that is manifest in it [and to] exclude from... consideration any matter which it would be unlawful... to take as a criterion... [subject to the qualification where] the statute seems to allow great latitude to the Commissioner in forming his opinion' . Moreover his Honour referred to what was said by Dixon J (as he then was) in R v Trebilco; Ex parte FS Falkiner &amp; Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 at 32 as to certain statutory 'considerations by which an exercise of discretion is to be guided... [t] he nature of those considerations [to] be gathered from the scope and object of the provision' . Additionally his Honour referred further to dictum of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40, where his Honour described the statutory discretion there addressed, albeit not related to fiscal exaction, as '... similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard', and where his Honour thereafter proceeded to emphasise that '[b]y analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.' Those factors have aspects of materiality in relation to the issue or issues here falling for consideration.