Mr Roxborough sought to recover a tobacco licence fee from Rothmans Ltd. That was required to be paid by the Business Franchise Licences (Tobacco) Act 1987 (NSW) and was struck down by the High Court of Australia because it was held to be an excise, which only the Federal Government could charge.

Gleeson CJ, Gaudron J and Hayne J held there was no reason to depart from that view which was expressed in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd.[3] 27.

Must part of the windfall to the wholesaler, who is undeserving, be passed to the retailers, equally undeserving, without any provision, sought or offered, to recompense the consumers, who are deserving because they ultimately paid amounts towards the unrecovered licence fees?

Or should the windfall remain where it is, on the footing that no basis is shown by statute, by equity or by the common law to sustain the recovery claimed by the retailers?

In a given case, it may mean that the taxpayer has, in fact, suffered no loss and is entitled to no legal recovery.