Agrinova Pty Ltd v Chief Commissioner of State Revenue

NCAT Administrative and Equal Opportunity|2024-05-30

Introduction and summary

In January and October 2019, in divorce proceedings under the Family Law Act 1975 (Cth), the Family Court of Australia made property settlement orders altering certain property interests of the parties to a marriage that had broken down. The orders, made under Part VIII of the Family Law Act, required the transfer of specified parcels of land from various entities to the Applicant. The transfers were duly effected in December 2019.
The respondent Chief Commissioner assessed the transfers as subject to duty amounting to over $1.8 million. The Applicant objected to the assessments, seeking exemption under s 68 of the Duties Act 1997 (NSW) and/or s 90 of the Family Law Act. The objection was disallowed.
The Applicant has applied to the Tribunal for an administrative review of the assessments, now basing its claim for exemption solely on s 90 of the Family Law Act. That section provides that specified 'agreements, deeds and other instruments' (including, on the face of it, instruments of the kind involved in this case) are not subject to 'any duty or charge under any law of a State'. This would be a straightforward case between the Applicant and the Commissioner if the High Court of Australia had not struck down an earlier version of s 90 as invalid, in Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227.

Jurisdiction and onus

The Tribunal has jurisdiction to hear and determine this application for administrative review: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9, and Taxation Administration Act 1996 (NSW) (TA Act), s 96(1).
The role of the Tribunal on administrative review is to determine the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written and unwritten law: ADR Act, s 63(1). For this purpose, the Tribunal may exercise all the functions conferred or imposed by any relevant legislation on the Commissioner in making the decision he made: ADR Act, s 63(2). The Tribunal has the power to confirm or revoke the assessments under review, or make new assessments in place of the original ones: TA Act, s 101(1).
In this application for review the onus is on the Applicant to prove its case: TA Act, s 100(3). The standard of proof is the balance of probabilities. The onus is therefore on the Applicant to establish, on the balance of probabilities, that it is not liable to the duty charged in the assessments. If it can't establish that, the assessments will prevail as correct: Cornish Investments Pty Ltd v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [30] and [36].

The Applicant's case

The Applicant's case, as set out in its Submissions dated 3 April 2024 (AWS) is that s 90 of the Family Law Act operates to avoid any duty liability on the transfers.
At the time of the transfers, s 90, which is in Part VIII of the Act, provided relevantly as follows: (1) The following agreements, deeds and other instruments are not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only to or in relation to a Territory: (a) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order made under this Part; …
The Applicant claims (AWS [6]-[9]), and the Commissioner accepts (Respondent's Written Submissions - RWS - at [6]), that the orders made by the Family Court were made under Part VIII of the Family Law Act.
The Applicant then summarises its position at AWS [14] as follows: As the transfers the subject of the objections were executed in accordance with an order made under [Part VIII], it follows that they are not subject to any duty or charge under the Duties Act 1997 (NSW), unless subsection 90(1) is not a valid law of the Commonwealth.
It is by reference to this position, according to the Commissioner (RWS [7]), that one identifies the 'narrow scope' of the review to be undertaken by the Tribunal.
As to the validity of s 90 of the Family Law Act, the Applicant notes the High Court's conclusion in Gazzo (by a 3:2 majority) that s 90 as it then appeared in the Act was not a valid law of the Commonwealth, but the provision has since been replaced. The provision considered in Gazzo was as follows: A maintenance agreement, or a deed or other instrument executed by a person for the purposes of such an agreement or for the purposes of, or in accordance with an order under, this Part, is not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only to or in relation to a Territory.
In AWS at [17] and following, the Applicant analyses the reasoning of the Court in Gazzo. The result of the analysis is that, of the Justices in the majority, Gibbs CJ's reasoning is said to be 'unpersuasive' (at [18]), and that of Stephen J and Aickin J 'wrong' ([22] and [24] respectively).
The Applicant notes at AWS [28] the subsequent characterisation, in Fisher v Fisher (1986) 161 CLR 438 (per Mason and Deane JJ, at 453 [6]), of the reasoning in Gazzo as 'fundamentally unsound' and further attributes to their Honours a statement that Gazzo 'should be confined to its particular facts until overruled'. It is then submitted: [28] … Given that the section has been replaced, confining the case to its particular facts would give it no further operation. It is noteworthy that the comments assumed that Gazzo being overruled was inevitable, if it is otherwise capable of being relied on. [29] More recently, in Spence v Queensland (2019) 268 CLR 355, Kiefel CJ, Bell, Gageler and Keane JJ, when referring to a proposition from Gibbs CJ's decision in Gazzo, acknowledged the doubt about the correctness of the result in Gazzo (at [69]). Nettle J was more direct in expressing his own view that the decision in Gazzo was wrong (at [136]).
The Applicant submits, in summary, at AWS [31], that 'if any one of the 3 majority decisions can be seen as contrary to binding statements of principle, then the majority in Gazzo vanishes, and it offers no precedential value at all, in relation to the present s 90.' According to the Applicant, each of the majority judgments fails to withstand that test, for the following reasons:

The reasoning of Gibbs CJ cannot be reconciled with later authority such as Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Victoria v The Commonwealth ('Industrial Relations Act case') (1996) 187 CLR 416, Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 and New South Wales v The Commonwealth ('Work Choices case') (2006) 229 CLR 1; and
The reasoning of Stephen J and Aickin J is incompatible with the overruling of R v Barger (1908) 6 CLR 41 (a case upholding the 'sole characterisation' and 'reserved powers' doctrines) by Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 and Murphyores Inc Pty Ltd v The Commonwealth (1976) 136 CLR 1.

The Applicant submits the correct question when considering the validity of an enactment is the one posed by Mason J in Gazzo - whether s 90 has a sufficient connection to one of the powers in s 51 of the Constitution. The answer, in the Applicant's submission, is 'yes'.
The Applicant submits there are three powers under s 51 of the Constitution to which s 90 of the Family Law Act has a sufficient connection, namely s 51(ii) (taxation), s 51(xxi) (marriage) and s 51(xxii) (divorce and matrimonial causes).
In conclusion, the Applicant submits in AWS [36]: It follows that Gazzo was wrong when decided. Section 90, both then and now, is and was a valid law of the Commonwealth 'with respect to' matrimonial causes, and thus within s 51(xxii) of the Constitution, at least to the extent that it applies to instruments executed for the purposes of or in accordance with orders under Part VIII. It would be overturned if a case relying upon it were brought to the High Court.

The Commissioner's position

The Commissioner's position is an uncomplicated one. It is that Gazzo is binding High Court authority and that the Tribunal is bound to follow it.
Focusing on the Applicant's submissions in AWS [36] ([21] of these reasons), the Commissioner submits the Applicant's case depends on the Tribunal accepting three things: 1. Gazzo 'was wrong when decided'; 2. Section 90, 'both then and now, is and was a valid law of the Commonwealth'; and 3. Gazzo 'would be overturned if a case relying upon it were brought to the High Court'. To accept those three things would require the Tribunal to decline to follow binding authority of the High Court, 'based on speculation that a hypothetical future High Court (at an unknown point in time) would overturn a precedent that has stood for over 40 years, which has been cited and considered subsequently in several High Court cases, and which has been and continues to be applied as law throughout Australia (and not only in NSW)': RWS [9].
In response to the Applicant's claim that the majority reasoning in Gazzo 'offers no precedential value at all', the Commissioner submits that despite the differing reasoning in the majority judgments, there is a clear ratio decidendi, as set out in the form of the following answers on the stated case: The question submitted to the Court is answered as follows: Section 90 of the Family Law Act 1975 (Cth), in its attempted application to stamp duties imposed under the Stamps Act 1958 (Vict.) on transfers of land executed by a person in accordance with an order under Pt VIII of the Family Law Act 1975 is not a valid law of the Commonwealth. Remit the matter to the Supreme Court of Victoria. No order as to costs.
In fact, the Commissioner says, the decision in Gazzo has been accepted and treated as binding authority by the High Court itself. For example, in Fisher, the full statement of Mason and Deane JJ is as follows (the emphasis is the Commissioner's): In this respect, while the actual decision in [Gazzo] must be respected unless and until it is overruled, we consider that the authority of that case should be confined to its particular facts for the reason that we regard the reasoning underlying the decision as fundamentally unsound.
The Commissioner does not accept the Applicant's assertion (AWS [28]; [17] of these reasons) that their Honours' comments 'assumed that Gazzo being overruled was inevitable', noting the qualification inherent in the expression 'unless and until'. Indeed, the starting point for their Honours was that Gazzo is binding authority and therefore 'must be respected'.
Nor is it relevant that s 90 has been replaced since Gazzo was decided. The differences between the current and the previous versions of s 90 are immaterial, and the operative provision in s 90(1) is relevantly identical. The function of the provision also remains the same - relevantly, 'to provide that an instrument executed in accordance with an order of the Family Court will not be subject to any duty under any law of a State': RWS [14].
The Commissioner notes that in Spence v Queensland (2019) 268 CLR 355, the majority (Kiefel CJ, Bell, Gageler and Keane JJ) stated at [69]: In Gazzo v Comptroller of Stamps (Vict) Gibbs CJ referred to the Second Uniform Tax Case as amongst a number of decisions which showed 'that a provision cannot be said to be incidental to the subject matter of a power simply because in a general way it facilitates the execution of the power' and 'that in considering whether a law is incidental to the subject matter of a Commonwealth power it is not always irrelevant that the effect of the law is to invade State power'. Although the correctness of the decision in Gazzo has been questioned [footnote 98], there is no reason to doubt the veracity of those observations. (Citations omitted)
The Commissioner also notes that footnote 98 in that extract referring to 'the correctness of the decision in Gazzo' only refers to one case - the minority judgment of Mason and Deane JJ in Fisher (see [17] and [25] of these reasons). The majority's endorsement in Spence of Gibbs CJ's reasoning is a further impediment to the Applicant's contention ([18] of these reasons) that the majority reasoning 'offers no precedential value at all': RWS [15]-[16].
The Commissioner identifies 13 High Court cases that have considered or cited the decision in Gazzo without overruling it or suggesting that it 'offers no precedential value at all'. Those cases are set out at RWS [17]. It is unnecessary to refer to any of them here; it is sufficient to acknowledge the Commissioner's submission that the Tribunal is bound, as a matter of law, to follow the binding authority of the decision in Gazzo.
In conclusion, the Commissioner refers to:

Illawarra Retirement Trust v Colliers International (Wollongong) Pty Ltd [2021] NSWCATCD 113, where at [50], and citing Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [189-[196], a member of NCAT at first instance affirmed that 'the Tribunal is bound to follow Appeal Panel or Supreme Court decisions, at least on questions of law'; and
Australian Investment and Development Pty Ltd v Commissioner of State Revenue [2017] VCAT 1418 (the AID case), where the Victorian Civil and Administrative Tribunal similarly stated 'VCAT ought to follow the Court of Appeal decision' for the relevant legal principle in that case, and submits these statements apply with even greater force to decisions of the High Court.

The Applicant's reply

Addressing the Commissioner's position, the Applicant's Submissions in Reply (AWSR) identify 3 matters for decision by the Tribunal: 1. Is the Tribunal bound by Gazzo? 2. Is Gazzo a decision that would today be followed in the High Court? 3. Should the Tribunal make a decision on the basis that it is accepted that the Applicant would ultimately succeed in legal proceedings?

Is the Tribunal bound by Gazzo?

On the first question, the Applicant submits at AWSR [2]: A tribunal is bound by doctrines of precedent only when it is exercising judicial authority. It is not bound by either stare decisis or comity, when exercising (as this Tribunal is in this application), executive authority.
In this regard, the Applicant notes, in relation to Illawarra Retirement, that the case was heard in the Consumer and Commercial Division (CCD), where the Tribunal exercises judicial authority and it is 'uncontroversial that in that capacity, the Tribunal is bound by precedent': AWSR 2.
In relation to Lam, the Applicant focuses at AWSR 2(i) on certain propositions listed by the Appeal Panel at [191], and taken from Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1, namely: 1. Whether the doctrine of precedent or stare decisis is capable of applying to a decision of a tribunal depends on the functions of the tribunal under the Act by which it was created … 2. … 3. The doctrine of stare decisis applies to decisions of tribunals which exercise judicial power …
The Applicant also cites at AWSR 2(ii) the Appeal Panel's comment in Lam at [194]: Of course, not all matters dealt with in the Tribunal involve the exercise of judicial power. Most importantly, those matters in the Administrative and Equal Opportunity Division and the Occupational Division over which the Tribunal has administrative review jurisdiction (as described in s 30 of the NCAT Act) involve the exercise of executive rather than judicial power. …
The Applicant says at AWSR 2 that Babaniaris supports Lam, and 'similarly limits its relevance to tribunals exercising judicial power'. It cites Mason J at 11-12 and Brennan and Deane JJ at 31 in support of its claim.
As far as the AID case is concerned, the Applicant notes the Tribunal there was exercising executive power - and in any event, the decision 'does not suggest that the Tribunal was bound to follow the court decision' (my emphasis).
The Applicant also refers to Mustac v Medical Board of Western Australia [2007] WASCA 128, a decision of the Western Australian Court of Appeal confirming, the Applicant submits, that judicial comity has no application to require a tribunal exercising executive power to follow questions of law determined by a court.
In Mustac, the WA Court of Appeal explained at [38]: The practice of judicial comity is, of course, distinct from, but related to, the doctrine of precedent (or stare decisis) which compels each court in a judicial hierarchy to follow and apply decisions of any court higher in that hierarchy on questions of law. The practice of judicial comity applies to augment that doctrine by creating a non-binding practice applicable to decisions of courts of co-ordinate jurisdiction, or as between a court in one judicial hierarchy, and a court at the same or a higher level in another judicial hierarchy, and provides that questions of law should usually (but not always) be determined the same way. …
Mustac was an appeal from a decision of the State Administrative Tribunal of WA (SATWA) constituted by the President, a Supreme Court judge (Medical Board of Western Australia and Mustac [2006] WASAT 178). The Tribunal had stated at [63]: … the Tribunal, when constituted so as to include the President, who is also a judge of the Supreme Court, should endeavour to follow a decision of a single judge of the Supreme Court unless it is plainly wrong. This is in accord with the well-known comity principle.
The Court of Appeal at [37] found that statement to be wrong, for reasons including: … (b) judicial comity does not operate as between decisions of courts and decisions of administrative tribunals although principles of good administration and consistency of decision may be relevant to the approach properly taken by an administrative tribunal; …
Following its analysis of Mustac, the Applicant submits at AWSR 2 that 'stare decisis only applies to courts in a judicial hierarchy. It does not apply between courts on the one hand, and executive decision-making on the other.'
It summarises its position at AWSR [3]-[4]: [3] There are sound reasons for the Tribunal, exercising executive authority, not to be bound by court decisions in a stare decisis sense. Subject only to restrictions in the Tribunal's statute, any principle restricting the Tribunal, which stands in the shoes of the executive in making its decision, would have to apply equally to the executive itself. However, no such restriction could apply to the executive. This is because: (a) the task for the executive (and hence the Tribunal), in considering the law when making its decisions, is to anticipate what would be the most likely ultimate outcome in proceedings if the matter were litigated; (b) if convinced that a court decision (not between the parties) unfavourable to the executive, is wrong, it would be proper for the executive (and hence the Tribunal) to proceed on the basis that the court decision does not reflect the law, so that the executive can put the law to the test in the courts. In doing so, of course, due care would need to be taken to comply with 'principles of good administration and consistency of decision'; (c) if satisfied that a court decision, favourable to the executive, is wrong, it would be improper for the executive (and hence the Tribunal) to put a taxpayer to the expense and inconvenience of litigation, to get to that expected result. It would also be contrary to the model litigant obligations of the executive; (d) it is also an important part of the separation of the executive and the judiciary and the development of the law that the executive have the ability, subject to any order of the courts, to act on the basis it, in its independent judgement, considers legally correct. [4] It follows that, because this Tribunal is exercising executive power, it is not bound by precedent in the manner asserted for the [Commissioner]. The Tribunal must make its own evaluation of the likely ultimate outcome if the point were to be litigated today.

Is Gazzo a decision that would today be followed in the High Court?

The Applicant submits there is no decision in which the holding that the former s 90 was not a valid law of the Commonwealth has been followed or endorsed. Nor has any law of the Commonwealth been held invalid, based on the reasoning in Gazzo.
The Applicant submits the following reasoning of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Bayside City Council v Telstra Corp Ltd (2004) 216 CLR 595 at [30] is contrary to and irreconcilable with Gazzo: A law conferring upon carriers an immunity from all State taxes and charges would be a law with respect to telecommunications services; and so is a law conferring an immunity from some State taxes and charges.
Furthermore, in response to the Commissioner's submission regarding Spence ([28]-[29] of these reasons), the Applicant emphasises that the majority's footnote 98 in that case also cited Zines's The High Court and The Constitution, 6th ed (2015) at 63 as questioning the correctness of the decision in Gazzo.

Should the Tribunal make a decision on the basis that it is accepted that the Applicant would ultimately succeed in legal proceedings?

The Applicant submits at AWSR [9]: The [Commissioner] does not defend the correctness of the decision in Gazzo, a decision criticised outright by four judges of the High Court and at least one learned author, doubted, at least on this point, by four others, and contradicted by the reasoning of a further five. Even in a court it should be confined to its facts, and in a constitutional law case, the words of the statute (words since replaced) are part of the facts. The Tribunal should assess the transfers as exempt.

Consideration

In these reasons I have referred to a number of statements, by both courts and tribunals, dealing with the doctrine of precedent (or stare decisis) and the comity principle. It is important to analyse them closely and carefully, to ensure they are neither misunderstood nor misapplied. It is also important to emphasise that neither stare decisis nor the comity principle has any application to questions of fact; they only apply, where relevant, to questions of law.
A convenient starting point is the Appeal Panel decision in Lam, on appeal from a decision of the CCD (Senior Member Lucy). The CCD's reasons are not published in full on Caselaw, but paragraph 107 is set out in the Appeal Panel's reasons at [189]. That paragraph from the CCD's reasons is as follows: Although the Tribunal is not bound by the doctrine of precedent, it should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or the Deputy Presidents: Rittau v Commissioner of Police, New South Wales Police Service [2000] NSWADT 186 at [60]. This creates consistency and predictability, and helps to achieve the objects of the Civil and Administrative Tribunal Act, particularly that identified in s 3(e), to ensure that the decisions of the Tribunal are fair and consistent. However, I agree with the opinion of Deputy President Todd of the Administrative Appeals Tribunal in Re Ganchov and Comcare (1990) 19 ALD 541, a decision referred to in Rittau's case, that, in critical cases, it may be appropriate for a member to express a contrary view. The Deputy President said in relation to the application of the doctrine of precedent in that tribunal: The decision in Re Willis was a decision of the president. The Tribunal is not legally required to apply a strict doctrine of precedent. It is not a court, and is not of last resort; as to which see the joint judgment of Dawson, Toohey and McHugh JJ in Hien Van Nguyen v Thang Van Nguyen (High Court of Australia, FC No 90/009, 8 March 1990). It is, however, I believe time to say that unless decisions of the President are followed by all within the Tribunal, and unless decisions of presidential members (which of course includes deputy presidents) clearly dealing with a point in issue are followed within the Tribunal, the Tribunal could gain a reputation for inconsistency if not disarray. In critical cases it is certainly in my view open to a member to note his or her disagreement with a precedent decision, but it is not desirable for members to adhere to views that appeal to them when the point has been decided otherwise at a higher level. That is not to say, however, that members are not entitled to express their own view for the record, as I have done here.
SM Lucy's statement that the Tribunal is 'not bound by the doctrine of precedent' caught the Appeal Panel's eye, triggering the comment at [190] that '[t]he Appeal Panel is of the view that it is not necessarily correct to say that the Tribunal is not bound by the doctrine of precedent'.
The context in which SM Lucy made the statement is not available to me. Nevertheless, it seems to me that she was addressing the question whether NCAT is bound by earlier decisions of NCAT. Her citing of AAT Deputy President Todd's statements in Ganchov, in my view, bears that out. This is because DP Todd was discussing nothing more than the question whether AAT members should follow decisions of other members of the same Tribunal (particularly where the 'other members' were presidential members). Hence the Deputy President's statement of his desire that decisions of presidential members be 'followed within the Tribunal' so that the Tribunal would not 'gain a reputation for inconsistency if not disarray'.
Importantly, DP Todd was saying nothing about the question whether the AAT should, or must, follow decisions of courts, whether within or outside its own hierarchy. Nor, in my view, was SM Lucy saying anything about whether NCAT should, or must, follow precedents established by the courts. Perhaps neither of them felt the need to state the obvious.
I turn now to the Appeal Panel's pronouncements in Lam at [191], relied on by the Applicant, namely: 1. Whether the doctrine of precedent or stare decisis is capable of applying to a decision of a tribunal depends on the functions of the tribunal under the Act by which it was created. 2. … 3. The doctrine of stare decisis applies to decisions of tribunals which exercise judicial power …
Those are not statements about whether a tribunal such as NCAT (whether exercising judicial power or not) is bound by precedent; it is a statement about whether a decision of such a tribunal can operate as a precedent. In other words, are others (such as administrators, who exercise executive power) bound to follow such decisions? To which the answer must be 'yes', if the tribunal making the decision is exercising judicial power (point (3) above), and possibly 'no' (strictly speaking) if the tribunal making the decision is not exercising judicial power. Nevertheless, in the latter case, and for the purpose of maintaining consistency, certainty and fairness among the citizens of the State, administrators would generally be expected to follow NCAT decisions, even where the decision was not made in the exercise of judicial power. Similarly, members of NCAT determining disputes in the Administrative and Equal Opportunity Division (AEOD) or the Occupational Division generally strive to follow decisions of other members sitting at first instance in those Divisions.
The third sentence of [55] above should not, however, be taken to imply that the decision of a tribunal exercising judicial power is binding on other members of the same tribunal. The likelihood is that other members of the same tribunal are no more bound than, say, a judge of the NSW Supreme Court is bound to follow the decision of another judge of the same Court (but again, they will strive to do so unless the earlier decision is thought to be plainly wrong). On the other hand, as the Appeal Panel stated in Lam at [196]: [W]e think that it is appropriate for any Members sitting at first instance in the Tribunal to consider themselves bound, at least, to follow decisions of the Appeal Panel on questions of law.
Now, the Applicant submits that certain statements in Babaniaris (on which the Appeal Panel relied in Lam), and concerning stare decisis, are relevant only to tribunals exercising judicial power. But the submission seems to confuse the concept of a tribunal being bound by precedent and the question whether a tribunal decision can operate as a precedent. Mason J said at [22]: Whether that doctrine [of stare decisis] is capable of applying to a decision of the Board depends on the function of the Board under the Act …
There followed a discussion of the status of the Workers' Compensation Board in its statutory setting and the ultimate conclusion by his Honour, at [23]: The effect of these provisions is that the Board's decision is a final and binding determination of the rights and liabilities of the parties with respect to workers' compensation. The Board therefore exercises judicial power …
Brennan and Deane JJ stated at [11]: The axiom stare decisis applies to a reason given by a tribunal determining an issue in the course of and for the purpose of making a judicial decision … There is no judicial precedent if the tribunal is not engaged in making a judicial decision … A decision is judicial if it is, inter alia, 'a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons'.
Again, there is nothing in either of those quotes, which alone are relied on by the Applicant, to support a contention that a tribunal is bound by precedent only when it is exercising judicial power. Indeed, the statements only address the question whether the Board was exercising judicial power and, if it was, whether its decision amounted to a binding precedent.
The Applicant's reliance on Mustac is similarly misplaced. If one accepts, as I do, that the Tribunal in its administrative review jurisdiction (as here, in the AEOD) is an administrative tribunal exercising administrative power, then the comments of the WA Court of Appeal at [48], although addressing the position with respect to SATWA, are strong and compelling: The Tribunal is an administrative tribunal, not a court. It is obviously bound to apply the law of the State. Not only is that proposition obvious, but it is inherent in sections such as s 59 and s 105 of the SAT Act, which deal with the resolution of questions of law. The law of the State is enunciated by the courts of the State, including the Supreme Court and the High Court. When questions of law arise for determination in the Tribunal, the Tribunal is required to apply the law as enunciated by the State courts and the High Court, at least by any court in the appellate structure above the Tribunal - see Re Adams and The Tax Agents' Board (1976) 12 ALR 239; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
Substitute New South Wales for Western Australia; ss 54 and 57 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) for s 59 of the SAT Act; and s 83 of the NCAT Act for s 105 of the SAT Act: the message is clear, and the position 'obvious'. NCAT is bound by High Court decisions.
The Applicant's submissions made much of the fact that the Commissioner and the AEOD of the Tribunal, both exercising administrative power, stood beyond any obligation to follow precedent (see [44] of these reasons). I accept that the AEOD of the Tribunal can be viewed as part of the executive, although I would say it is somewhat closer to the judicial branch than the Commissioner is. In any event, the Tribunal and the Commissioner are equally bound to 'apply the law as enunciated by the State courts and the High Court' (Mustac, above), and either of them would be in error not to do so. Should one need a reminder of that, it is to be found in the words of Allsop J (as his Honour then was) in the Full Court of the Federal Court of Australia in Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16 at [3]-[4]: [3] I wish, however, to add some comments about the attitude apparently taken by, and some of the submissions of, the appellant. From the material that was put to the Full Court, it was open to conclude that the appellant was administering the relevant revenue statute in a way known to be contrary to how this Court had declared the meaning of that statute. Thus, taxpayers appeared to be in the position of seeing a superior court of record in the exercise of federal jurisdiction declaring the meaning and proper content of a law of the Parliament, but the executive branch of the government, in the form of the Australian Taxation Office, administering the statute in a manner contrary to the meaning and content as declared by the Court; that is, seeing the executive branch of government ignoring the views of the judicial branch of government in the administration of a law of the Parliament by the former. This should not have occurred. If the appellant has the view that the courts have misunderstood the meaning of a statute, steps can be taken to vindicate the perceived correct interpretation on appeal or by prompt institution of other proceedings; or the executive can seek to move the legislative branch of government to change the statute. What should not occur is a course of conduct whereby it appears that the courts and their central function under Chapter III of the Constitution are being ignored by the executive in the carrying out of its function under Chapter II of the Constitution, in particular its function under s 61 of the Constitution of the execution and maintenance of the laws of the Commonwealth. [4] It is the function of the courts exercising federal jurisdiction to declare the meaning of statutes of the Commonwealth Parliament in the resolution or quelling of controversies. To quote Marshall CJ in Marbury v Madison 5 US 87 at 111 (1803): It is, emphatically, the province and duty of the judicial department to say what the law is.
In this context there is no relevant distinction to be drawn between Commonwealth and State administrative bodies. When the High Court has said what the law is, all must follow.
This discussion leads inevitably to the conclusion that I must follow what the High Court decided in Gazzo - that s 90 of the Family Law Act, as it then stood, was not a valid law of the Commonwealth. It is not open to me to conclude, as the Applicant urges upon me, that Gazzo 'was wrong when decided'; or that s 90, 'both then and now, is and was a valid law of the Commonwealth'. Since I do not accept that the current version of s 90 is relevantly different from the earlier version struck down by the High Court, I conclude that the decision in Gazzo applies with equal force to the current version of s 90. Furthermore, it is entirely irrelevant whether or not I consider that Gazzo 'would be overturned if a case relying upon it were brought to the High Court'. Indeed, it would be somewhat presumptuous of me to express an opinion on that question one way or the other.
For completeness and the avoidance of doubt, I do not accept the Applicant's summary of the executive's obligations in AWSR [3]-[4], and as quoted in [44] of these reasons. Neither the Tribunal nor the Commissioner, in a case such as this, has the unfettered freedom the Applicant asserts.

Conclusion

I am not satisfied, on the current state of the law, that s 90 of the Family Law Act exempts the transfers from duty.

Order 1. The assessments under review are confirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2024

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