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Gazzo v the Comptroller of Stamps (VIC); Ex Parte the Attorney-General for Victoria–A Christmas Carol

Published online by Cambridge University Press:  24 January 2025

Peter Waters
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Type
Case Note
Information
Federal Law Review , Volume 13 , Issue 2 , June 1982 , pp. 191 - 199
Copyright
Copyright © 1982 The Australian National University

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References

1 (1981) FLC 91-101; (1981) 38 ALR 25; (1982) 56 AUR 143; High Court of Australia; Gibbs CJ, Stephen, Mason, Murphy and Aickin JJ.

2 Hereinafter referred to as “tbe Act”.

3 The Supreme Courts of tbe States were invested with federal jurisdiction during a transitional period: s 39 of tbe Act.

4 S70(3) and tbe Third Schedule of the Stamps Act.

5 Stamps Acts 37.

6 The States never fully accepted tbe constitutional validity of s 90. While different practices grew up in tbe offices of the State Stamp Duty Commissioners, Court ordered transfers between spouses were generally exempted. The Victorian Commissioner levied tbe duty in tbe Gazzo case because tbe ultimate beneficiary of the transfer was not the wife but the children as tbe beneficiaries of the trust ordered to be set up by tbe Court.

7 Pursuant to s 40(1) Judiciary Act 1903 (Cth).

8 Eg (1981) FLC 91-101, 76,717, (1981) 38 ALR 25, 28 per Gibbs CJ.

9 Para (xxxix) does of course also apply to matters incidental to the execution of a head of legislative power. While the Court recognised the theoretical distinction between s 51(xxxix) in its application to a head of legislative power and the implied incidental area of that power, Their Honours thought thatit was of little consequence in this case and treated the issues as one.

10 (1981) FLC 91-101, 76,718-76,719; (1981) 38 ALR 25, 30 quoting from his own judgment in R v Lambert; ex parte Plummer (1980) FLC 90-904, 75,691; (1980) 32 ALR 505, 512.

11 (1981) FLC 91-101, 76,719; (1981) 38 ALR 25, 30.

12 Ibid.

13 (1981) FLC 91-101, 76,722-76,723; (1981) 38 ALR 25, 35.

14 (1981) FLC 91-101, 76,736; (1981) 38 ALR 25, 54.

15 (1981) FLC 91-000, 76,051; (1981) 33 ALR 631.

16 (1981) FLC 91-000, 76,061; (1981) 33 ALR 631,644.

17 (1981) PLC 91-101, 76,719; (1981) 38 ALR 25, 30 quoting from Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55, 77.

18 (1920) 29 CLR 1.

19 (1962) 107 CLR 46.

20 (1981) PLC 91-101, 76,721; (1981) 38 ALR 25, 33.

21 Victoria v The Commonwealth (1957) 99 CLR 575.

22 Commonwealth v NSW (1923) 33 CLR 1.

23 See Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46, 63.

24 (1981) FLC 91-101, 76726; (1981) 38 ALR 25, 40.

25 Murphy J referred, inter alia, to a passage from the judgment of Isaacs J in FC of T v Munro (1926) 38 CLR 153, 180.

26 (1981) FLC 91-101, 76,330; (1981) 38 ALR 25, 46.

27 The Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1920) 28 CLR 129.

28 However, Murphy J did expressly uphold the power of the Parliament to protect from State taxation the implementation of valid orders made in the exercise of the judicial power of the Commonwealth, including those made by the Family Court under the Family Law Act, (1981) FLC 91-101, 76,733; (1981) 38 ALR 25, 50.

29 The Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1920) 28 CLR 129.

30 (1981) PLC 91-101, 76,719; (1981) 38 ALR 25, 30.

31 In R v Barger (1908) 6 CLR 41 the Court held a law invalid which was limited in its operation to heads of Commonwealth power, because its legislative object gave it a character beyond any Commonwealth power. While not expressly overruled, the decision is clearly at odds with the approach adopted by the court in later cases such as Herald & Weekly Times Ltdv Commonwealth (1966) 115 CLR 418 and Murph yores Pty Ltd v Commonwealth (1976) 136 CLR 1.

32 (1981) FLC 91-101, 76,722; (1981) 38 ALR 25, 34.

33 (1957) 99 CLR 575.

34 (1981) FLC 91-101 ,76,722; (1981) 38 ALR 25, 34.

35 (1981) FLC 91-101, 76,727; (1981) 38 ALR 25, 42 per Mason I; (1981) FLC 91-101; 76,733; (1981) 38 ALR 25, 50per Murphy J.

36 As expressed in such decisions as Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55. See also Rumble, G, “S 51(xxxix) of the Constitution and the Federal Distribution of Powers” (1982) 13 FL Rev 182Google Scholar.

37 (1981) FLC 91-101, 76,726; (1981) 38 ALR 25, 40.

38 Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46.

39 Ibid 62-69.

40 (1981) FLC 91-101, 76,723; (1981) 38 ALR 25, 36.

41 The State stamp duty Acts applied generally to all receipts given in the course of trade, whether interstate or intrastate.

42 Russell v Russell (1976) 134 CLR 495.

43 Eg Stamp Duties (Amendment) Act 1982 (NSW).