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HIGH COURT OF AUSTRALIA

ROY PALMER v COMMISSIONER OF STATE TAXATION (WA)

GIBBS, Mason and Murphy   JJ

16 September 1976 - Perth 23 November 1976 - Sydney

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Murphy   J    The appellant contended that the word " estate " in s   74(1)(6) of the Administration Act 1903-1970 (WA) has much the same meaning as " property " in s 4(f) of the Gift Duty Assessment Act 1941-1957 and relied upon the observations of Windeyer   J in Gorton v FC of T (1965) 113 CLR 604 ; 1 ATR 65 . Windeyer   J said at CLR 625-6; ATR 79: " I do not read para (f) of the definition of ' disposition of property ' in the Act as confined to cases in which there has been a diminution of the value of some specific item of property belonging to one person and an increase in the value of some specific item of property belonging to another. Doubtless it would catch such a case, if one can be imagined that would not be caught by the earlier paragraphs of the definition. But it seems to me that it would do so because it deals with the value of a person ' s property in the sense of the value of all that is his. The word ' property ' , to describe collectively a man ' s worldly wealth, his substance, is one of the oldest senses of the word in the English language. And it can bear that sense in the language of the law, for example when the property of the bankrupt is spoken of in bankruptcy legislation. The word ' property ' in para (f) , with which we are here concerned, has in my opinion much the same meaning as the word ' estate ' in the corresponding provision of the Death Duties Act 1921 of New Zealand, whence para (f) was apparently derived. The view that I take accords, I think, with the statement in the judgment of Latham   CJ and Webb   J in Grimwade ' s case that: ' Paragraph (f) is intended to cover cases of transactions entered into with the intent to diminish the value … of the donor ' s own property in globo and to increase the value of the property in globo of another person ' . "

   and further " If as the result of a transaction one person is worse off and another person better off than they would have been if the transaction had not occurred, and if the transaction was entered into with intent to produce this result, then I consider the statutory description is satisfied. "

   The appellant then sought to apply the view of the majority in Gorton ' s Case rather than that of Windeyer   J. This process of reasoning is unacceptable. Windeyer   J dissented because he considered " property " was equivalent to " estate " . The logical conclusion to the appellant ' s argument is that the view of Windeyer   J should be preferred to that of the majority. McTiernan   J in Gorton ' s case and Kitto   J in Birks v FC of T (1953) 10 ATD 266 expressed similar views, and in my opinion they were correct.

   I do not see any relevant distinction between the use of the word " property " in the gift duty case and the use of the word " estate " in the Administration Act. The majority decision in Gorton ' s case was founded upon the view that " property " referred to specific items. Even if this were correct, it could not benefit this appellant, for this is not the meaning of " estate " .

   It was conceded (correctly) that there was a " transaction " , and so the case comes within s   74 of the Act.

   On the second point, I agree with Mason   J. The appellant conceded that to construe s   74(2) as he submitted, would deprive it of all effect.

   The appeal should be dismissed.