Case: R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598
Outcome: applied
The High Court considered the effect s 175 and s 177 of the Act in Richard Walter . At least a majority of the Court considered that an assessment cannot be challenged on an application under s 39B of the Judiciary Act unless one of the three matters identified by Dixon J (as he then was) in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 (' Hickman ') is established. In a well-known passage dealing with the effect of a privative clause, Dixon J said (at 615): 'Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, 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.' 42 Dawson J did not think that there was room for the Hickman principle in view of the plain terms of s 175 of the Act (at 222-223) and Toohey J seems to have taken a similar view (at 233) (see also McHugh J at 240). 45 Gleeson CJ said that in the particular statutory context of the Migration Act the privative clause did not operate to exclude judicial review for breach of the requirements of natural justice (at 493-494 [35]-[38]). His Honour did not disapprove of Hickman ; he said that as a matter of statutory construction it did not contain the relevant principles for the case before him. He referred to the decision in Richard Walter on two occasions without disapproval (at 484 [11], 488 [19]). Gaudron, McHugh, Gummow, Kirby and Hayne JJ said that Hickman was not a principle but 'simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions' (at 501 [60]). There is no general rule as to the meaning or effect of a privative clause. Their Honours said (at 501 [60]) (footnotes omitted): 'Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.' 47 I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities