The Commissioner argued before Lindgren J that either Virgin Holdings was distinguishable or that the Court should not consider itself obliged by considerations of comity to follow Virgin Holdings. His Honour was of the view that he should follow Virgin Holdings unless the decision was "plainly wrong". This required his Honour to give full consideration to the issues "with a view to arriving independently at my own conclusion". Having done so, and finding for the taxpayers, his Honour concluded, at para 173:
"It will be clear from my reasoning above that I have independently reached conclusions on the issues that were common to the present proceedings and Virgin Holdings. It will also be clear, for what significance it may be thought to have, that I do not think that Virgin Holdings was wrongly decided."
Undershaft (No 1) Limited v FCT  FCA 41 (Federal Court, Lindgren J, 3 February 2009).
For a copy of the decision, go here.