Reported Decision: 74 NSWLR 481 New South Wales Court of Appeal CITATION: B & L LININGS PTY LIMITED & ANOR v CHIEF COMMISSIONER OF STATE REVENUE [2008] NSWCA 187 HEARING DATE(S): 8 July 2008 JUDGMENT DATE: 11 August 2008 JUDGMENT OF: Allsop P at 1; Giles JA at 120; Basten JA at 121 1. The notices of assessment issued by the Chief Commissioner of State Revenue to B & L Linings Pty Limited and to L & B Linings Pty Limited for the financial years ending 30 June 2000, 30 June 2001, 30 June 2002 and 30 June 2003 be revoked. DECISION: 2. The assessment of pay-roll tax for B & L Linings Pty Limited and L & B Linings Pty Limited for the four years referred to in order 1. above be remitted to the said Chief Commissioner for determination in accordance with the decision of the Administrative Decisions Tribunal Appeal Panel dated 2 July 2007. 3. Otherwise dismiss the appeal with costs. CATCHWORDS: ADMINISTRATIVE LAW – Administrative Tribunals – Administrative Decisions Tribunal Revenue Division – Administrative Decisions Tribunal Act 1997 (NSW) ss 119, 120 - APPEAL – nature of appeal – question of law – powers of the Supreme Court - TAXATION – PAY-ROLL TAX – exemptions – "two-person exemption" –approach to assessing Pay-roll Tax Act 1971 (NSW) s 3A(1)(f) - STATUTES – Administrative Decisions Tribunal Act 1997 (NSW) ss 113, 119, 120 – Migration Act 1958 (Cth) ss 430, 481 – Supreme Court Act 1970 (NSW), s 75A - WORDS & PHRASES – "affirm" – "question of law" – "question of law alone" Administrative Appeals Tribunal Act 1975 (Cth) Administrative Appeals Tribunal Act 1984 (Vic) Administrative Appeals Tribunal Act 1989 (ACT) Administrative Decisions (Judicial Review) Act 1977 (Cth) Administrative Decisions Tribunal Act 1997 (NSW) Compensation Court Act 1984 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Dust Diseases Tribunal Act 1989 Federal Court of Australia Act 1976 (Cth) Government and Related Employees Appeal Tribunal Act 1980 (NSW) Guardianship Act 1987 (NSW) LEGISLATION CITED: Income Tax and Social Services Contribution Assessment Act 1936 (Cth) Income Tax Assessment Act 1936 (Cth) Land and Environment Court Act 1979 Magistrates Court (Administrative Appeals Division) Act 2001 (Tas) Medical Practice Act 1992 (NSW) Migration Act 1958 (Cth) Pay-roll Tax Act 1971 (NSW) Protected Estates Act 1983 (NSW) State Administrative Tribunal Act 2004 (WA) Supreme Court Act 1933 (ACT) Supreme Court Act 1970 (NSW) Taxation Administration Act 1996 (NSW) Workplace Injury Management and Workers Compensation Act 1998 CATEGORY: Principal judgment Amaca Pty Limited v New South Wales [2003] HCA 44; 77 ALJR 1509; 199 ALR 596 Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited [2003] FCAFC 244; 133 FCR 290 Bell v Shellharbour Municipal Council (1993) 78 LGERA 429 Birdseye v Australian Securities & Investments Commission [2003] FCAFC 232; 76 ALD 321 Boehringer Ingelheim Pty Limited v Reddrop [1984] 2 NSWLR 13 Brown v The Repatriation Commission (1985) 7 FCR 302 Bulasa Pty Limited v Baytown Properties Pty Ltd [2003] VSC 248 CDJ v VAJ [1998] HCA 67; [1998] HCA 76; 197 CLR 172 Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; 131 FCR 28 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Commissioner of Taxation v Brixius (1987) 16 FCR 359 Daykin v SAS Trustee Corp [2001] NSWSC 58; 51 NSWLR 328 De Domenico v Marshall [2001] ACTSC 52; 146 ACTR 30 Fidgeon v WIlliam Abbott & Associates [2003] VSCA 5 Fox v Percy [2003] HCA 22; 214 CLR 118 Frugtniet v Secretary to Department of Justice (No 2) (1996) 10 VAR 314 Green v Victorian WorkCover Authority [1997] 1 VR 364 Grube v Minister for Lands and the Environment [2005] NFSC 4; 194 FLR 54 HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126; 143 FCR 553 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Howell v Macquarie University [2008] NSWCA 26 ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 Keramianakis v Regional Publishers Pty Limited [2007] NSWCA 375 Krew v Federal Commissioner of Taxation (1971) 45 ALJR 249 Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324 Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673 CASES CITED: Metropolitan Water, Sewerage & Drainage Board v Histon [1982] 2 NSWLR 720 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 Mond v Lipshut [1999] VSC 103; [1999] 2 VR 342 Murray v Commissioner of Police [2004] NSWCA 365; 2 DDCR 31. Nelson Guang Lai Shi v Migration Agents Registration Authority [2008] HCA 31 New South Wales Aboriginal Land Council v Aboriginal & Torres Strait Islander Commission (1995) 131 ALR 559 North Broken Hill Limited v Tumes [1999] NSWCA 309; 18 NSWCCR 412. Ovidio Carrideo Nominees Pty Limited v The Dog Depot Pty Limited [2006] VSCA 6 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; 33 WAR 361 Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7; 59 CLR 369 Patrick Operations Pty Limited v Comcare [2006] NSWCA 142; 68 NSWLR 131 Post Office Agents Association Limited v Australian Postal Commission (1988) 84 ALR 563 Puglisi v Administrative Decisions Tribunal of New South Wales [2001] NSWCA 298; 52 NSWLR 350 Roads and Traffic Authority of New South Wales v Peak [2007] NSWCA 66 Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; 207 CLR 72 Ruhamah Property Company Limited v Federal Commissioner of Taxation [1928] HCA 22; 41 CLR 148 Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150 Owners of 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 5; 181 CLR 404 TNT Skypak International (Aust) Pty Limited v Commissioner of Taxation (Cth) (1988) 82 ALR 175 Transport Accident Commission v Hoffman [1989] VR 197 Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 Victorian Stevedoring and General Contracting Co Pty Limited v Dignan [1931] HCA 34; 46 CLR 73 Victorian Workcover Authority v Game [2007] VSCA 86; 16 VR 393 Western Australia v Ward [2002] HCA 28; 213 CLR 1 Whitehorse City Council v Golden Ridge Investments Pty Limited [2005] VSCA 198; 13 VR 275 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 Williams v The Queen [1986] HCA 88; 161 CLR 278 Wong v Carter [2000] VSCA 53 XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37; 124 CLR 343 Zuccala Homes Pty Ltd and Commissioner of State Revenue (Victoria) (1994) 94 ATC 2084 B & L LININGS PTY LIMITED PARTIES: L & B LININGS PTY LIMITED CHIEF COMMISSIONER OF STATE REVENUE FILE NUMBER(S): CA 40497/2007 COUNSEL: Appellants: J Eager (Solicitor) Respondent: A Robertson SC/ I Latham SOLICITORS: Appellants: John Eager, Neutral Bay Respondent: Crown Solicitor LOWER COURT JURISDICTION: Administrative Decisions Tribunal (Appeal Panel) LOWER COURT FILE NUMBER(S): ADT 059044 LOWER COURT JUDICIAL OFFICER: Chestermann ADCJ and 2 others LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWADTAP 2 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40497/2007 ADT 059044 ALLSOP P GILES JA BASTEN JA Monday 11 August 2008 B & L LININGS PTY LTD & Anor v CHIEF COMMISSIONER OF STATE REVENUE Headnote The Office of State Revenue issued Notices of Assessment under the Pay-roll Tax Act 1971 (NSW) to B & L Linings Pty Limited and L & B Linings Pty Limited in respect to the financial years ending 30 June 2000, 30 June 2001, 30 June 2002 and 30 June 2003. B & L and L & B were family companies in the business of supplying and installing cornices and linings made of plasterboard. B & L was the principal contractor to builders of homes and apartments. The function of L & B was to fulfil B & L's contracts by subcontracting with various entities (sole traders, partnerships and companies) to do the work. The assessments were issued on the premise that the remuneration paid by L & B to 47 entities should have been included for pay-roll tax purposes. The appellant companies objected to the assessments. The Chief Commissioner of State Revenue disallowed the objections. The appellants applied for merits review by the Administrative Decisions Tribunal under the Taxation Administration Act 1996 (NSW), s 96. A Judicial Member sitting in the Revenue Division of the Tribunal found that the relevant employees and subcontractors were employees of L & B and affirmed the Commissioner's decision: [2005] NSWADT 129. The appellants appealed to the Administrative Decisions Tribunal Appeal Panel. The Appeal Panel dealt with the matter in four parts. The first hearing proceeded as an appeal on an question of law, the Appeal Panel deciding that the decision of the Judicial Member was vitiated by legal error: [2006] NSWADTAP 2. In the second hearing, extended to a merits review, the Appeal Panel decided that all 36 contentious entities were subcontractors not employees: [2006] NSWADTAP 32. The third hearing (the subject of the appeal) concerned the operation of s 3A(1) of the Pay-roll Tax Act. The Appeal Panel concluded that all of the entities were independent contractors and that all but five of the entities satisfied s 3A(1)(f), such that sums paid to all but those five entities were not required to be included in L & B's returns: [2007] NSWADTAP 32. The fourth hearing concerned the issue of costs. The appellants appealed to the Court of Appeal, on a question of law, against part of the third decision under s 119(1) of the Administrative Decisions Tribunal Act 1997 (NSW). The issues for determination on appeal were: (i) the nature of the hearing on the appeal on a question of law; (ii) whether the Appeal Panel erred in law in failing to find that a second person provided services to C1, C29 and C31; and (iii) whether the Appeal Panel erred in law in respect to C6 and C10 by applying the incorrect onus of proof; wrongly applying the rule in Jones v Dunkel; and wrongly applying the rule in Browne v Dunn; and failing to afford procedural fairness. The Court held, dismissing the appeal: In relation to (i) (per Allsop P, with whom Giles JA and Basten JA agreed) 1. An appeal to the Supreme Court from the Appeal Panel is limited to a question of law; s 119 of the Administrative Decisions Tribunal Act 1997 does not authorise the Supreme Court to engage in fact finding on the merits of the decision of the Tribunal: [38], [55], [75], [77], [78], [120], [121]. (Per Basten JA) 2. The function of the Court, exercising jurisdiction in relation to an appeal brought under s 119 of the Administrative Decisions Tribunal Act 1997, is limited to the identification of an erroneous answer in respect of a question of law. The Court is not entitled to embark upon any review of the decision-making process of the Tribunal beyond that necessary to answer the appropriately identified questions of law: [150]. 3. The proper construction of ss 119 and 120 precludes the Court from engaging in a review of the decision beyond determining material questions of law identified by the appellant; the powers of the Court do not extend to making an evaluative judgment based on primary facts as found by the Tribunal, or exercising a discretionary power vested in the Tribunal, unless the finding or order was the only one open: [139]. Abebe v The Commonwealth [1999] HCA 14; 197 HCA 31 CDJ v VAJ [1998] HCA 67; [1998] HCA 76; 197 CLR 172 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) 1978 1 ALD 167 Nelson Guang Lai Shi v Migration Agents Registration Authority [2008] HCA 31 Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142; 68 NSWLR 131 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 Victorian Stevedoring and General Contracting Company v Dignan [1931] HCA 34; 46 CLR 73 Western Australia v Ward [2002] HCA 28; 213 CLR 1 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 4. Section 75A of the Supreme Court Act 1970 (NSW) does not operate to expand the scope of the appeal permitted by ss 119 and 120 to which it is subject: [149]. In relation to (ii) (per Allsop P, with whom Giles JA and Basten JA agreed) 5. No error of law vitiated the conclusion of the Appeal Panel that the appellants had failed to prove that they were entitled to the "two-person exemption" in respect to C1, C29 and C31 by satisfying s 3A(1)(f) of the Pay-roll Tax Act 1971; the evidence did not necessarily establish that another person or persons provided services for the entities: [99], [100], [120], [121]. In relation to (iii) (per Allsop P, with whom Giles JA and Basten JA agreed) 6. No error of law was made out in respect to C6 and C10: the Appeal Panel applied the correct onus of proof on the balance of probabilities such that no error of law was disclosed; the principle in Jones v Dunkel did not apply nor was the Appeal Tribunal obliged to apply it; the rule in Browne v Dunn was not relevant and not infringed; that there was no denial of procedural fairness: [104], [105], [106], [109], [120], [121]. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40497/2007 ADT 059044 ALLSOP P GILES JA BASTEN JA Monday 11 August 2008 B & L LININGS PTY LTD & Anor v CHIEF COMMISSIONER OF STATE REVENUE JUDGMENT 1 ALLSOP P: This is an appeal under s119(1) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act") "on a question of law" against a decision of an Appeal Panel of the Administrative Decisions Tribunal ("the Tribunal") concerning the operation of the Pay-roll Tax Act 1971 (NSW), s3A. The Pay-roll Tax Act has been repealed by Act No 21 of 2007 with effect from 1 July 2007. That repeal, however, does not affect the disposition of this matter. 2 The Tribunal was constituted by three members including Chesterman ADCJ. In these circumstances, the appeal comes directly to the Court of Appeal: Supreme Court Act 1970 (NSW), s48 and see Daykin v SAS Trustee Corporation [2001] NSWSC 58; 51 NSWLR 328; Puglisi v Administrative Decisions Tribunal of New South Wales [2001] NSWCA 298; 52 NSWLR 350 at 352[1]; and Howell v Macquarie University [2008] NSWCA 26. Background 3 The proceedings arise out of assessments issued under the Pay-roll Tax Act to the two appellants, B & L Linings Pty Limited ("B & L") and L & B Linings Pty Limited ("L & B") for the financial years ended 30 June 2000, 30 June 2001, 30 June 2002 and 30 June 2003. The assessments in respect of both appellants (being part of the same group and jointly entitled to a wages threshold under the Pay-roll Tax Act) were issued on the premise that the remuneration paid by L & B to 47 employees and subcontractors should have been included for pay-roll tax purposes. The appellants objected to the assessments. The objections were disallowed. The appellants applied for merits review by the Administrative Decisions Tribunal (ADT), under the Taxation Administration Act 1996 (NSW) ("the Administration Act"), s96. 4 Before turning to the relevant procedural history, a little factual background is appropriate. B & L and L & B are, and at all relevant times were, family companies running a business of supplying and installing cornices and linings made of plasterboard in buildings and apartments. B & L was the principal contractor to builders of homes and apartments. L & B's function was to fulfil B & L's contracts by subcontracting with various entities (sole traders, partnerships and companies) to do the work. B & L tendered for work. If it won a tender, it purchased materials and delivered them to the building site. L & B then engaged entities to install the linings and cornices. Tax invoices were then rendered. 5 A Judicial Member sitting in the Revenue Division of the Tribunal found that the relevant employees and subcontractors were employees of L & B and affirmed the Commissioner's decision ([2005] NSWADT 129). 6 The appellants instituted an internal appeal to the Appeal Panel of the Tribunal. The Appeal Panel dealt with the matter in four tranches. It first limited its consideration to whether the Judicial Member was correct in his conclusion that the entities concerned were all employees. This first hearing proceeded as an appeal on a question of law. The Appeal Panel decided that the decision of the Judicial Member was vitiated by legal error ([2006] NSWADTAP 2). The Appeal Panel then granted leave under the ADT Act, s113(2)(b) for the appeal to extend to a review of the merits of the appealable decision and to decide under s115(1) what was the "correct and preferable decision". 7 The parties and the Tribunal, including the Appeal Panel, were content to take a sample year (the financial year ending 30 June 2002) as effectively governing the dispute over all years. The Appeal Panel then undertook the second tranche of the appeal – the question whether the 36 entities in dispute were employees or subcontractors. After a hearing, the Appeal Panel decided that all 36 contentious entities were subcontractors, not employees ([2006] NSWADTAP 32). 8 This conclusion did not determine the controversy. The Pay-roll Tax Act, s3A provided for a deemed relationship of employment (and thus wages) in circumstances where there was otherwise a relationship of principal and independent contractor and not of employer and employee. Section 3A(1) relevantly provided as follows: (1) A reference in this section to a relevant contract in relation to a financial year is a reference to a contract under which a person (in this subsection referred to as the designated person ), during that financial year, in the course of a business carried on by the person: (a) supplies to another person services for or in relation to the performance of work, (b) is supplied with the services of persons for or in relation to the performance of work, or (c) gives out goods to natural persons for work to be performed by those persons in respect of those goods and for re-supply of those goods to a designated person or, where the designated person is a member of a group, to another member of that group, but does not include a reference to a contract of service or a contract under which the designated person, during a financial year, in the course of a business carried on by the designated person: … (f) is supplied by a person (in this paragraph referred to as the contractor ) with services for or in relation to the performance of work under a contract to which paragraphs (d) and (e) do not apply, where the work to which the services relate is performed: (i) by 2 or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor, (ii) where the contractor is a partnership of 2 or more natural persons, by 1 or more of the members of the partnership and 1 or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor, or (iii) where the contractor is a natural person, by the contractor and 1 or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor, unless the Chief Commissioner determines that the contract under which the services are so supplied was entered into with an intention either directly or indirectly of avoiding or evading the payment of tax by any person. 9 Under the above provision, relevantly (and excluding factual matters not in issue), entities that were subcontractors to L & B would still be deemed employees by s3A if L & B (as the designated person in s3A(1)) was supplied with their services in relation to the performance of the work, unless, in relation to any such entity (defined in s3A(1)(f) as the "contractor") the work to which those services related was performed by two or more employees of the contractor or two or more persons who supplied services for the contractor: s3A(1)(f)(ii); or performed, where the contractor is a natural person, by the contractor and one or more persons employed by, or who provided services for, the contractor. (There was no suggestion about the operation of the avoidance provision in the last part of s3A(1)). 10 The operation of s3A(1) was, at least initially, the sole focus of the third hearing before the Appeal Panel. The Commissioner sought, and was permitted, to re-agitate in this third hearing the question dealt with in the second hearing – whether the entities (being the contractors to L & B) were employed by L & B or whether they were subcontractors. The Appeal Panel concluded, once again, that all of the entities were independent contractors. It also concluded that all but five of the entities satisfied the Pay-roll Tax Act, s3A(1)(f) such that sums paid to all but five entities were not required to be included in L & B's returns ([2007] NSWADTAP 32). 11 The appellants appealed to this Court under the ADT Act, s119(1), on a question of law, against that part of the decision of the Appeal Panel concerning the five entities in respect of whom it was concluded that s3A(1)(f) did not apply. (This is not an appeal under the Administration Act, s97). 12 The fourth hearing before the Appeal Panel concerned costs. The appeal from that decision, also made under the ADT Act, s119(1), is not part of the appeal to this Court. That is unfortunate. The parties should have alerted the Registrar in listing this matter so that the one appeal bench could deal with all issues concerning these parties on the one occasion. The nature of the appeal to this Court The argument of the appellants 13 The appellant approached the appeal to this Court on the basis that once the Court's jurisdiction was "established" by the identification of a question of law in the reasons of the Appeal Panel in its third decision (that is, relevantly, an asserted error of law), the appeal proceeded as an appeal "by way of rehearing" by reason of, and as contemplated by, the Supreme Court Act, s75A(5), and that the Court had the powers and the duties of the Appeal Panel including the powers and duties concerning the drawing of inferences and the making of findings of fact: Supreme Court Act, s75A(6)(b). The task of the Court, it was submitted, once jurisdiction was "established" and "vested" in the Court, was governed by the principles in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. 14 The above submissions misunderstand the task of the Supreme Court in an appeal under Chapter 7 Part 2 of the ADT Act dealing with "appeals". To deal with these submissions, it is necessary not only to review some important aspects of structure of the ADT Act, but also to examine cognate legislation around Australia and the jurisprudence thereon, as well as the jurisprudence in this Court on at least some statutory provisions providing for "appeals" to the Supreme Court of New South Wales. The ADT Act 15 The objects of the ADT Act as set out in s3 include the following that are directed to the better conduct of the administration within the Government of New South Wales: (a) to establish an independent Administrative Decisions Tribunal: (i) to make decisions at first instance in relation to matters over which it is given jurisdiction by an enactment, and (ii) to review decisions made by administrators where it is given jurisdiction by an enactment to do so, and (iii) to exercise such other functions as are conferred or imposed on it by or under this or any other Act or law, … (d) to provide a preliminary process for the internal review of reviewable decisions before the review of such decisions by the Tribunal, (e) to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request, (f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs, (g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales. 16 The Tribunal is established under s11 with membership, provided for under s12, of a President, a Deputy President, non-presidential judicial members and non-judicial members. Judicial officers may act as members of the Tribunal: s14. The Tribunal is organised in Divisions: s19; functions are allocated to those Divisions: s20; and members are assigned to those Divisions: s21. 17 The jurisdiction of the Tribunal is dealt with in Chapter 3. Without limiting any function of the Tribunal, the Tribunal may make original decisions and reviewable decisions: s36. The jurisdiction to act as a primary decision-maker depends upon an enactment providing for such function: s37. The review function of decisions or classes of decisions is also conferred by other enactments: s38. Section 47 sets out a summary of the review process for reviewable decisions. An interested person affected by a reviewable decision may seek either reasons for the decision or an internal review of the decision by a person directed to do so by the administrator, or both those steps: see Divisions 2 and 3 of Part 2 of Chapter 5. An interested person may (generally after the internal review) make an application to the Tribunal for review of that decision: see Chapter 5 Part 3. A reviewable decision may also be the subject of an enquiry by the Ombudsman: see s39. If the Tribunal has reviewed the reviewable decision a party to the proceedings may appeal to an Appeal Panel of the Tribunal by way of "internal appeal" under Part 1 of Chapter 7. A party to proceedings before an Appeal Panel may appeal, on a question of law, against the Panel's decision to the Supreme Court under Part 2 of Chapter 7. Part 3 of Chapter 7 preserves the inherent jurisdiction of the Supreme Court to conduct a judicial review of any decision of the Tribunal: see generally s47(1). 18 Part 2 of Chapter 5 deals with the role of administrators. Division 1 deals with information concerning the decision and review rights. Division 2 deals with the duty to give reasons on request. Division 3 deals with internal reviews. 19 Part 3 of Chapter 5 deals with the role of the Tribunal. Division 1 deals with applications for review. Division 2 deals with the effects of pending applications on reviewable decisions. Division 3 deals with powers on review. Section 63 in Division 3 provides as follows: (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 20 Section 64 requires the Tribunal to give effect to any relevant government policy in determining an application for review of a reviewable decision. Section 64 is in the following terms: (1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter. (3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate. (4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. (5) In this section: Government policy means a policy adopted by: (a) the Cabinet, or (b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators. 21 Section 66 deals with the effect of a review decision in the following terms: (1) A decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision. (2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken: (a) to be the decision of the administrator (other than for the purposes of a review under this Chapter), and (b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise. 22 Chapter 6 deals with procedure of the Tribunal generally. Section 73 in Part 2 of Chapter 6 relevantly provides as follows: (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. 23 Sections 83 and 84 set out the powers of the Tribunal in relation to witnesses and summonses which reflect a degree of inquisitorial power in the Tribunal itself. These sections are in the following terms: 83(1) The Tribunal may: (a) call any witness of its own motion in any proceedings, and (b) examine any witness on oath or affirmation, or by use of a statutory declaration, in any proceedings, and (c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and (d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings before it. (2) If the Tribunal decides to call a person as a witness under subsection (1) (a), the Tribunal may: (a) seek to procure the voluntary attendance of the person before it by notifying the person in such manner as it thinks appropriate in the circumstances, or (b) direct the Registrar to issue a summons to compel the attendance of the person before it. (3) Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question. 84 (1) A summons for the purposes of this Act may be issued by the Registrar: (a) on the application of a party to proceedings before the Tribunal, or (b) at the direction of the Tribunal. (2) Any such summons must be signed by the Registrar or as otherwise provided by the rules of the Tribunal. (3) Any such summons may require a person to do any one or more of the following: (a) attend and give evidence, (b) attend and produce documents or other things. (4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence. … (5) A summons may be served within or outside the State. 24 Part 3 of Chapter 6 deals with the rules of the Tribunal. Part 4 of Chapter 6 deals with alternative dispute resolution. 25 Chapter 7 is entitled "Appeals". Section 112 defines "appealable decisions". Section 113 gives a right of appeal, called an "internal appeal" in the heading to Part 1, against an appealable decision to an Appeal Panel, though leave is required to appeal against "an interlocutory decision of the Tribunal". Section 113(2) is in the following terms: (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. Thus the Appeal Panel has both a legal review function and a merits review function. 26 Section 114 deals with an appeal on a question of law and is in the following terms: (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal. 27 Section 115 deals with an appeal on the merits. Section 115 is in the following terms: (1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned. (3) In determining any such appeal, the Appeal Panel may decide: (a) to affirm the decision, or (b) to vary the decision, or (c) to set aside the decision and make a decision in substitution for the decision it set aside. 28 Section 118 enables the Appeal Panel to refer questions of law arising in the appeal to the Supreme Court for the opinion of the Court and the Supreme Court has jurisdiction to hear and determine any question of law so referred to it. 29 Part 1A of Chapter 7 is entitled "External Appeals". It provides for the conferral of jurisdiction to hear and determine appeals against the decision or class of decisions if another enactment provides for an appeal to be made to the Tribunal and that such appeal is specified to be an external appeal within the meaning of the ADT Act. External appeals to the Tribunal have been provided for in the Guardianship Act 1987 (NSW), s67A and the Protected Estates Act 1983 (NSW), s21A. The kinds of matters that can come to the Appeal Panel by external appeal under the last two-mentioned provisions range beyond review of administrative decision or action: the Guardianship Act, s67A provides, for example, for external appeals under s6K (the revocation or confirmation of appointments of enduring guardians), s6MA (the substitution of enduring guardians), s14 (the making of guardianship orders), s25C (variation of guardianship orders) and s25E (the making of financial management orders); the Protected Estates Act, s21A provides for an external appeal against an order by a magistrate or the Mental Health Review Tribunal that the estate of a person be subject to management under that Act. 30 The grounds for such an external appeal are set out in s118B(1) as follows: An external appeal may be made: (a) as of right, on any question of law, or (b) by leave of the Appeal Panel hearing the appeal, on any other grounds. 31 Under s118C the Appeal Panel hearing such an external appeal may make orders as follows: (1) The Appeal Panel hearing an external appeal is to determine the appeal and make such orders as it thinks appropriate in the light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision the subject of the external appeal, (b) an order remitting the matter to be heard and decided again by the person or body that made the decision, either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for the decision the subject of the external appeal. (3) A decision of the Appeal Panel in relation to an external appeal takes effect on the date on which it is given or such later date as may be specified in the decision. (4) The Appeal Panel is to cause a copy of its decision and the reasons in writing for that decision to be served on each party to the appeal. 32 Again, under s118D references of questions of law to the Supreme Court may be made and the Supreme Court has jurisdiction to hear and determine any question of law so referred to it. 33 Part 2 of Chapter 7 deals with appeals to the Supreme Court. Sections 119 and 120 are in the following terms: 119(1) A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings. (1A) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following decisions of the Appeal Panel except by leave of the Supreme Court: (a) an interlocutory decision, (b) a decision made with the consent of the parties, (c) a decision as to costs. (2) The Appeal Panel (or any of the members constituting the Appeal Panel) cannot be made a party to an appeal under this section. Rules of court made under the Supreme Court Act 1970 may make provision for the parties to any such appeal (including the designation of a respondent where the only party in the proceedings from which the appeal is brought was the appellant). (3) An appeal by a person under this section must be made: (a) within such time and in such manner as is prescribed by rules of court made under the, Supreme Court Act 1970, or (b) within such further time as the Supreme Court may allow. 120(1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Supreme Court on appeal include (but are not limited to): (a) an order affirming or setting aside the decision of the Appeal Panel, and (b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court. 34 Part 3 of Chapter 7 deals with the interrelationship between the Supreme Court and the Tribunal. Sections 122 and 123 are in the following terms: 122 Nothing in this Act (except section 123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal. 123(1) The Supreme Court may: (a) refuse to grant an application for the review of an original decision of the Tribunal if it is satisfied that, in all the circumstances, adequate provision is made under this Act for the applicant to seek an alternative review of the decision, or (b) refuse to grant an application for the review of a reviewable decision if it is satisfied that, in all the circumstances, adequate provision is made under this Act for the applicant to seek an alternative review of the decision, or (c) refuse to grant an application for the review of an original decision or of a reviewable decision if an application has been lodged with an alternative reviewer for a review of the decision. (2) In deciding whether to refuse an application for review (and without limiting the generality of subsection (1)), the Supreme Court may take into account any one or more of the following matters: (a) if the applicant has not yet applied for an alternative review of the decision concerned—whether the applicant would be eligible to apply for an alternative review, (b) whether an alternative reviewer is likely to deal with the matter more expeditiously and cheaply than the Court, (c) whether a favourable determination of the application by the Court would be likely to resolve the issues in dispute, (d) whether the alternative reviewer would be able to give the applicant an appropriate remedy, (e) whether the applicant would suffer any substantial hardship if the application were refused, (f) any other matter it considers relevant. (3) In this section: alternative review means an internal review, or a review by the Tribunal, under this Act of the decision concerned. alternative reviewer means a person or body that can conduct an alternative review. review includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ (or the making of an order in the nature of such a writ) or the making of a declaratory or other order, but does not include an appeal under Part 2. 35 A "reviewable decision" is defined in s8 as a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. 36 The above review of the role of the Tribunal, Appeal Panel and Supreme Court provides the statutory context to the submission of the appellant that the "appeal" to the Supreme Court under s119, once a question of law in the decision of the Appeal Panel is identified, becomes, in effect, a full rehearing on law and fact of the controversy before the Appeal Panel in the same fashion as any appeal to the Court of Appeal to which s75A applies, such as an appeal from the Equity Division or Common Law Division of the Court or from the District Court. 37 It is unnecessary for the disposition of this proceeding to discuss many of the aspects of the role and function of the Tribunal, the Appeal Panel and the Supreme Court thrown up by the above provisions. All it is necessary to decide is whether or not the terms and structure of the ADT Act and, in particular, s119 when read with the Supreme Court Act, s75A support the argument put forward by the appellant in this case. The appellants' argument is rejected 38 In my view, the appellants' argument should be rejected. In relation to internal appeals to the Appeal Panel a clear distinction is made in s113(2) between an appeal on any question of law and a review of the merits of the appealable decision. When one contrasts that provision with the terms of s119 one finds no authority in the Supreme Court to engage in a "review of the merits" of the Appeal Panel decision from that section. The appeal to the Supreme Court against a decision of the Appeal Panel is expressed to be on a question of law. The contrast with s113 is both immediate and clear. 39 It is also clear from decisions of this Court, the Federal Court of Australia, the Victorian Court of Appeal and the Western Australian Court of Appeal that the phrase "on a question of law" in this context of judicial review of the legality of a decision of an administrative tribunal does not, of itself, provide a simple gateway to an appeal by way of rehearing upon the identification of some question of law that is sought to be argued in the appeal. 40 The terms of s119(1) are not only to be contrasted with s113, but they are also to be seen as the use of a familiar expression used in statutes throughout Australia concerned with the review of legality of administrative bodies. The terms of s119(1) are very similar to those of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), s44(1), the Administrative Appeals Tribunal Act 1984 (Vic) ("the Victorian AAT Act"), s52(1) (now repealed) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("the VCAT Act"), s148(1), the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas) ("the Tasmanian Act"), s47(2), the State Administrative Tribunal Act 2004 (WA) ("the WASAT Act"), s105, and the Administrative Appeals Tribunal Act 1989 (ACT) ("the ACTAAT Act"), s46(1). 41 The AAT Act, s44(1) is in the following terms: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 42 The Victorian AAT Act, s52(1) was in the following terms: A party to a proceeding before the Tribunal may appeal to the Supreme Court, on a question of law, from a decision of the Tribunal in that proceeding. 43 The VCAT Act, s148(1) is in the following terms: A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding— (a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or (b) to the Trial Division of the Supreme Court in any other case— if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal. 44 The Tasmanian Act, s47(2) is in the following terms: … A party to a proceeding before the Court may appeal to the Supreme Court, on a question of law, from a decision of the Court in that proceeding. 45 The WASAT Act, s105 is, relevantly, in the following terms: (1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal. (2) The appeal can only be brought on a question of law. (3) The appeal lies to — (a) The Court of Appeal, if the decision was made by — (i) a judicial member; or (ii) the Tribunal constituted by members who include a judicial member; (b) the Supreme Court exercising its other jurisdiction, in any other case. … (13) Despite subsection (2), if the Tribunal's decision — (a) is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and (b) has the effect of depriving a person of the person's capacity to lawfully pursue a vocation, an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact. 46 The ACTAAT Act, s46(1) is in the following terms: A party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in the proceeding. 47 The phrase "on a question of law" in the AAT Act, s44(1) has been interpreted as being narrower than the phrase "involving a question of law". In TNT Skypak International (Aust) Pty Limited v Commissioner of Taxation (1988) 82 ALR 175 at 178 Gummow J contrasted the language of s44(1) with that in the old s196 of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Tax Act") which provided for appeals from the Board of Review that "involved" a question of law. Under s196, if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law. As Gummow J said in TNT Skypak at 178: "[t]he existence of a question of law is … not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself". 48 This approach has governed the operation of s44(1) for over 20 years. In Brown v The Repatriation Commission (1985) 7 FCR 302 at 304, in a joint judgment, Bowen CJ, Fisher and Lockhart JJ discussed s44(1) in terms that anticipated what Gummow J later said in Skypak: The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. [Emphasis added] This approach has been consistently applied in the Federal Court: Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 363-364 (Forster, Fisher and Sheppard JJ); Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 93 ATC 4779 at 4,781 (Hill J); H P Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126; 143 FCR 553 at 555 (Hill J with whom Stone J and Allsop J agreed); Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321 at [11] and [16] (Branson and Stone JJ); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited [2003] FCAFC 244; 133 FCR 290 at 300[42] (Branson J) and 313[107] (Jacobson and Bennett JJ); and Comcare v Etheridge (2006) 149 FCR 522 at 527[13] (Branson J with whom Spender and Nicholson JJ agreed). The same approach has been taken to a similar provision in Norfolk Island by the Norfolk Island Supreme Court: Grube v Minister for Lands and the Environment [2005] NFSC 4; 194 FLR 54 (Weinberg J). 49 It can be accepted that the decisions of the Federal Court of Australia have been reached in the context of Commonwealth law and the strict separation of the administrative and judicial functions. In particular, one can see that in the proper characterisation of the "appeal" under s44(1) as an exercise in original jurisdiction (by way of a form of judicial review of administrative decision) not as a true appellate review or function: see Skypak at 178. In this respect the existence and content of provisions such as ss27 and 28 of the Federal Court of Australia Act 1976 (Cth) dealing with the function and powers of the Federal Court of Australia exercising appellate jurisdiction (cf Supreme Court Act, s75A), did not (indeed, could not) become relevant to the analysis. (See also in this regard Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; 131 FCR 28 at 33[12].) 50 The Victorian AAT Act, s52(1) was interpreted in similar fashion to the AAT Act, s44(1). In Transport Accident Commission v Hoffman [1989] VR 197 at 198-199, Young CJ and McGarvie J referred to the AAT Act, s44(1), contrasted it with the 1936 Tax Act, s196(1), cited some of the early Federal Court cases on s44(1) and said about s52(1): It is not to be construed as limited to an appeal from a decision of a Tribunal on a question of law. Nor is it to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal's decision. 51 Hoffman was followed in Frugtniet v Secretary to Department of Justice (No 2) (1996) VAR 314 at 317-8 (Tadgell JA, with whom Brooking JA agreed); Green v Victorian Workcover Authority [1997] 1 VR 364 at 370 (Tadgell JA, on slightly different statutory wording held to be to the same effect); Wong v Carter [2000] VSCA 53 at [43]-[44] (Tadgell JA); Fidgeon v William Abbott & Associates [2003] VSCA 5 at [14] (Charles JA with whom Winneke P agreed); Ovideo Carrideo Nominees Pty Limited v The Dog Depot Pty Ltd [2006] VSCA 6 at [59] (Ashley JA); Victorian Workcover Authority v Game [2007] VSCA 86; 16 VR 393 at 396 [15] (Ashley JA, with whom Maxwell ACJ and Nettle JA agreed); and Mond v Lipshut [1999] VSC 103; [1999] 2 VR 342 at 350 (Ashley J). 52 The words of the VCAT Act, s148(1) have received a like interpretation: Bulasa Pty Limited v Baytown Properties [2003] VSC 248; Whitehorse City Council v Golden Ridge Investments Pty Limited (2005) 13 VR 275; [2005] VSCA 198 at [8] (Warren CJ, Buchanan JA and Osborn AJA); and Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 337[16] (Phillips JA, with whom Tadgell JA and Batt JA agreed). In Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; 207 CLR 72 the High Court discussed the VCAT Act, s148 and characterised the "appeal" by the Supreme Court as a form of judicial review of administrative action in the original jurisdiction of the Court. At 207 CLR at 79-80 [15] Gaudron, Gummow, Hayne and Callinan JJ said the following about s148(1): Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s148 uses the word "appeal", it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review. That is not to say that there are no other avenues for judicial review. The VCAT Act makes no express provision excluding the general supervisory jurisdiction of the Supreme Court. It may, therefore, be doubted that s148 should be understood as doing more than providing, in some cases, an important discretionary reason for not permitting resort to that general supervisory jurisdiction on the basis that s148 provides a suitable alternative remedy. Nevertheless, it is important to recognise that the essential character of s148 is that it provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged. (Footnotes omitted) 53 The Court of Appeal of Western Australia has construed the WASAT Act, s105(2) in conformity with the AAT Act, s44(1): Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at 382 at [53] (Buss JA, with whom Wheeler JA and Pullin JA agreed). The clarity of that conclusion in the WASAT Act is, of course, reinforced by the terms of the WASAT Act, s105(13). 54 To the contrary of the above consistent approach, Crispin J in the Supreme Court of the Australian Capital Territory in De Domenico v Marshall [2001] ACTSC 52; 146 ACTR 30 accepted an argument that notwithstanding the terms of the ACTAAT Act, 46(1), the appeal provisions contained in the Supreme Court Act 1933 (ACT) meant that the appellant in the appeal proceedings could raise an attack on the facts of the administrative decision the subject of the appeal under s46(1). 55 All these authorities (De Domenico aside) are to the contrary of any submission that the terms of s119(1) permit the conclusion that the proceeding under that section extends to a rehearing of the factual questions before the Appeal Panel merely because a question of law can be identified in the decision under review. Such a proposition would require the phrase "on a question of law" to be interpreted as "involving a question of law", in a manner like the old s196 of the 1936 Tax Act. All these cases (De Domenico aside) deny this proposition. 56 A number of New South Wales statutes provide for what is called an appeal to the Supreme Court from a body or tribunal or court in terms which invoke some restriction or criterion referable to a question or error or point of law. 57 The Land and Environment Court Act 1979 (the "L and E Court Act"), ss56A and 57 provides for an "appeal against an order or decision" "on a question of law". Such appeals from the Land and Environment Court are in relation to Class 1, 2 and 3 proceedings; an unqualified appeal to the Supreme Court is provided for in Class 4 proceedings in s58. 58 In each of ss56A(2) and 57(2) of the L and E Court Act, provision is made for the exercise of power by the Supreme Court on the hearing of an appeal in the following terms: On the hearing of an appeal under subsection (1), the Supreme Court shall: (a) remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court, or (b) make such other order in relation to the appeal as seems fit. 59 In the (now repealed) Compensation Court Act 1984 (NSW) ("the C Court Act"), s32, the Dust Diseases Tribunal Act 1989 ("the DDT Act"), s32, and the District Court Act 1973 (NSW), s142N, a different, but similar, phrase is used to define an appeal to the Supreme Court: if a party is "dissatisfied" or "aggrieved" by a decision or award "in point of law or on a question as to the admission or rejection of evidence". In the Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act"), s353 the phrase is similar: "aggrieved by a decision … in point of law". 60 In the Medical Practice Act 1992 (NSW), s90 one avenue of appeal to the Supreme Court from the Medical Tribunal is expressed as "against a decision of the Tribunal with respect to a point of law". 61 In each of the above sections of the C Court Act, the DDT Act, the District Court Act and the WIM Act there is a provision for the exercise of the Supreme Court's power on the hearing of the appeal in substantially identical form: The [Supreme Court/Court of Appeal] may on the hearing of any appeal under this section, remit the matter to the [Tribunal/ Court etc] for determination by the [Tribunal/Court etc], in accordance with any decision of the [Supreme Court/Court of Appeal] and make such other order in relation to the appeal as the [Supreme Court/Court of Appeal] thinks fit. 62 In North Broken Hill Ltd v Tumes [1999] NSWCA 309; 18 NSWCCR 412 the Court of Appeal dealt with the C Court Act, s32. At [24]-[25] of her reasons Beazley JA (with whom Giles JA and Davies AJA agreed) said: The jurisdiction of this Court is limited by s32 of the Compensation Court Act to the determination of whether the trial Judge erred in law or wrongly admitted or rejected evidence. Section 32(2) provides that this Court may on the appeal "remit the matter to the Compensation Court for determination … in accordance with the decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit". That latter provision does not, however, invest the Court of Appeal with jurisdiction to make findings of fact. 63 In Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439, Gleeson CJ, Gummow and Callinan JJ, in their joint reasons, and Hayne J, in his concurrence, reserved, without deciding, on the correctness of this view in Tumes and on the possible application of the Supreme Court Act, s75A. Kirby J, after examining the history of the C Court Act, s32 concluded that both jurisdiction and power were intended to be limited by the question of law: 202 CLR at 464[69]. This question arose, however, on his Honour's analysis, only by reference to the power of the Court upon a grievance "in point of law" being made out, not merely upon there being identified a point of law said to contain an error. That is, Kirby J was examining the extent of the Court's power, if an error of law was made out. 64 In ICM Agriculture Pty Limited v Perry [2002] NSWCA 257 this Court dealt once again with the C Court Act, s32. Mason P (with whom Meagher JA and Handley JA agreed) said at [19]: The appellant is entitled to have the award set aside. Remitter would normally follow in a case like the present, because the error of law affected the ultimate decision …. and because this Court lacks jurisdiction to make factual findings. For the last proposition Mason P cited Tumes and Kirby J in Vetter . 65 In Maurici v Chief Commissioner of State Revenue (2001) NSWCA 78; 51 NSWLR 673, the Court was concerned with the L and E Court Act, s57(2). Tobias JA (with whom Beazley JA and Giles JA agreed) expressed the view that s57(2) was indistinguishable from the C Court Act, s32(2) and that, on the authority of Tumes and Kirby J in Vetter, the Court had no authority to make findings of fact or to exercise a discretion. Maurici was disapproved in Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150 in relation to the question of the power to exercise a discretion (on uncontested facts) for reasons (to which I will come) that did not weaken the precedential authority of either Tumes or ICM Agriculture (the latter case not being referred to in Maurici) in so far as they stated that the Court did not have power to find facts. Maurici was overturned in the High Court: [2003] HCA 8; 212 CLR 111, without this issue being discussed. 66 In Murray v Commissioner of Police [2004] NSWCA 365; 2 DDCR 31, Tobias JA (with whom Giles JA and Ipp JA agreed), interpreted the District Court Act, s142N(2) by reference to the C Court Act, s32(2) and concluded that decisions of the Court of Appeal made it clear that s32(2) did not invest the Court with "jurisdiction" to make findings of fact. Tobias JA referred to Tumes, Maurici and ICM Agriculture. 67 In Amaca Pty Limited v New South Wales [2003] HCA 44; 77 ALJR 1509; 199 ALR 596, the High Court (McHugh, Gummow, Kirby, Hayne and Callinan JJ in joint reasons) said at [22]: … Whether, once an error in point of law is identified , the Court of Appeal is confined to that point only and has no power to decide any other matter may not be clear. It is not necessary to decide that question here. (Footnotes omitted and emphasis added) Their Honours (including it is to be noted Kirby J) cited Gleeson CJ, Gummow and Callinan JJ in Vetter and made reference to Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324 at 325-326, being a case which dealt with the notion of "involving a question of law" under s196 of the 1936 Tax Act (see above). It is to be noted that their Honours said "once an error in point of law is identified" . 68 In Patrick Operations Pty Limited v Comcare [2006] NSWCA 142; 68 NSWLR 131, the Court (Giles JA, Ipp JA and Tobias JA) dealt with the DDT Act, s32. An error "in point of law" was discerned. The Court refused to make a fresh determination of apportionment. Giles JA (with whom Tobias JA agreed) expressed the view that the DDT Act, s32 did not permit (that is give power to) the Court to make factual findings and that the Supreme Court Act, s75A did not provide any such power. Ipp JA expressly reserved the question of the ambit of s32 (and, inferentially, any possible effect of s75A). Giles JA at [39]-[59] of his reasons examined the cases to which I have made reference and others to which I will come, and concluded that once an error in point of law was discerned this Court cannot make findings of fact for itself: 68 NSWLR at 145[56]. In so concluding his Honour held (68 NSWLR at 143[44]) that the Supreme Court Act, s75A(10) was a general provision and subject to confinement by the DDT Act, s32 on its proper construction. One of the cases discussed by Giles JA was Seltsam Pty Limited v Ghaleb [2005] NSWCA 2008; 3 DDCR 1 Giles JA referred, as I would wish to, to the helpful discussion (if I may respectfully say so) of Basten JA in that case of the DDT Act, s32 at 3 DDCR at 49[148] - 57[166] and his Honour's view that the power of the Court extended only to the question of law. 69 Before coming back to the L and E Court Act, it can be said about the above provisions using the phrase "in point of law" that there is, after Vetter and Amaca, an indication from the High Court, on two occasions, that there may be an issue as to the correctness of the authorities in this Court and that appeal provisions, using such phrase, may be wider than currently interpreted. Nevertheless, until reconsidered, those authorities stand. Further, it is to be noted that, although the Court in Amaca referred to Krew, the reservation made by the Court was prefaced with the words "once an error in point of law is identified". Thus, the reservation was as to the power of the Court once an error of law is found in the appeal in point of law or on a question of law; the reservation does not support the notion that the mere identification of a question of law is a gateway to a full rehearing, irrespective of whether any error of law is found to exist. 70 As to the L and E Court Act, I have already referred to Maurici. It is to be noted, as Basten JA did in Roads and Traffic Authority of New South Wales v Peak [2007] NSWCA 66 at [139], that the language of the L and E Court Act, s57(1) is like that of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) ("the GREAT Act"), s54 such that it was the underlying decision from whose decision the appeal lies, and not the appeal itself, which must be "on a question of law": see Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 725 (Samuels JA). 71 In Thaina Town, leave was sought to appeal from the decision of Preston CJ with respect to a costs order. A five judge bench was assembled (the Chief Justice, the President, Beazley JA, Giles JA and Ipp JA) because at issue were two competing views as to the exercise of the power to award costs under the L and E Court Act, s69. The Court was unanimous in concluding that Preston CJ had erred in law in the exercise of the discretion by imposing a presumptive rule or by characterising the proceedings inappropriately. The Chief Justice delivered the leading judgment, with which all members of the Court agreed in the above respects. There being an error of law, and the discretion below having miscarried, it became necessary to consider the power of the Court to re-exercise the discretion for itself. No facts needed to be found; the proceeding had come to the Court with an agreed statement of facts. The issue was whether the Court had authority to exercise the discretion on those facts on the correct principle, or whether it could do no more than remit that question to the Land and Environment Court, for the discretion to be re-exercised there. The Chief Justice considered that the Court had power to re-exercise the discretion. Given that Mason P and Ipp JA agreed in the Chief Justice's reasons unqualifiedly, and given the terms of the qualified agreement of Beazley JA and Giles JA in this regard, it is important to be precise about what the Chief Justice said. The Chief Justice considered that Maurici was wrongly decided, in two respects. First, the L and E Court Act, s57(2) was not indistinguishable from the C Court Act, s32(2) as held in Maurici. The structure of the C Court Act, s32(2) and the use of the conjunctive "and" suggested "that the power to make further orders … [was] consequential upon an order of remitter"; whereas the L and E Court Act, s57(2) used the word "or", to be understood as "and/or": [2007] NSWCA 300; 156 LGERA at 173[92]. In this respect, Giles JA disagreed with the Chief Justice and restated the view that he expressed in Patrick Operations at [56] (which had the agreement of Tobias JA), that the word "and" in the DDT Act, s32(2) (relevantly the same as the C Court Act, s32(2)) meant "and/or": that is precisely what the Chief Justice thought the "or" in the L and E Court Act, s57(2) meant. 72 Secondly, the Chief Justice expressed the view that nothing in s57(2) prevented a discretion being exercised on facts not in dispute. He said, at [110] of his reasons, that Maurici was wrong and should not be followed "insofar as it extended the restriction on this Court's power under s57(2)(b) beyond making findings of primary fact". I do not understand from the reasoning of the Chief Justice that his use of the phrase "findings of primary fact" was intended to be a qualification on the cases to which I have earlier referred with respect to fact finding not being encompassed within provisions such as the C Court Act, s32, the DDT Act, s32, and the WIM Act, s353. Beazley JA accepted that the extension of the earlier authorities to such an exercise of discretion was wrong. Giles JA accepted that Maurici was too widely expressed and that an exercise of discretion as to costs was within s57(2) of the L and E Act. The Chief Justice did not find it necessary to reconsider the cases to which I have referred insofar as they dealt with the limitation on the Court in finding facts. 73 The Chief Justice then discussed the possible relationship between the Supreme Court Act, s75A and the L and E Court Act, s57. I will come to what the Chief Justice said in this respect shortly; but it is to be noted that the role of s75A was not part of the reasoning of the Chief Justice for his conclusion that the Court could re-exercise the relevant discretion. His reasons for so concluding were that no fact finding was necessary, that there was no factual evaluative assessment which Parliament could be seen to have intended to be undertaken by the specialised tribunal, such as in Bell v Shellharbour Municipal Council (1993) 78 LGERA 429 at 433 and that the task was within s57(2): see generally [2007] NSWCA 300; 156 LGERA at 175[102]-176[110]. The Chief Justice's reasons were similar to those of Giles JA in this respect. At [2007] NSWCA 300; 156 LGERA at 184[151]; Giles JA agreed that Maurici was too widely stated and said: The re-exercise of a discretion as to costs without new or further findings of fact is preferably equated with pronouncing the result in law correct on the facts, rather than with an evaluative assessment in the nature of a finding of fact, and there is insufficient reason in the nature of a specialised tribunal to restrict the exercise of the discretion to the tribunal. Accordingly, under either provision there can be re-exercise of a discretion as to costs. In the present case no new or further findings of fact are needed, and this Court can act under s57(2)(b). Giles JA can be seen to be limiting his views to the re-exercise of a discretion as to costs without new or further findings of fact. The Chief Justice's reasons may be seen to be more broadly directed to the exercise of a discretion on agreed facts. In any event, the Chief Justice (and those members of the Court who agreed with him) and Giles JA decided the question upon the content of s57(2)(b) without resort to s75A. 74 The Chief Justice did, however, discuss the possible role of the Supreme Court Act, s75A. At 156 LGERA 174[94]-175[102] and 176[110] the Chief Justice said the following: 94 Mr Craig also invoked s75A of the Supreme Court Act which applies to appeals to the Court of Appeal of the character now before the Court. Save in one immaterial respect, Mr Robertson adopted Mr Craig's submissions on s75A. 95 In Vetter v Lake Macquarie City Council (2001) 202 CLR 439 the majority joint judgment at [38] expressly left open "the correctness or otherwise of the limited construction" of s32 of the Compensation Court Act in the judgment of this Court in Tumes and whether or not s75A of the Supreme Court Act 1970 had a relevant application. 96 Section 75A relevantly provides: "75A … (4) This section has effect subject to any Act … (6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: … (b) the drawing of inferences and the making of findings of fact … … (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires." 97 Such a jurisdiction conferred on a court which has "all jurisdiction which may be necessary for the administration of justice in New South Wales" (s23 Supreme Court Act 1970) should not be narrowly construed. Nor can the words "subject to any Act" be found to be satisfied save by clear statutory provision to that effect. 98 As Kirby J said in Vetter supra at [64]: " … Support for treating the Court's powers expansively would derive from the nature, function and general powers of the Court of Appeal itself and the regular functions of that Court, as part of the Supreme Court of a State, exercising its own jurisdiction and powers, to review fact-finding by trial courts. Generally speaking, in default of restrictive legislation, where by statute jurisdiction is conferred, and functions are imposed, on a superior court, a broad view is taken of the powers which that court then enjoys." 99 It is not appropriate to restrict s75A by implication from a statute, unless the implication is necessary. 100 As Gaudron J said in Knight v F P Special Assets Pty Limited (1992) 174 CLR 178 at 205: "It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to as limitation not appearing in the words of that grant. (See Hyman v Rose [1912] AC 623 at p 631; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at p290.) Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse." 101 Although it is arguable that the approach in Tumes does not satisfy that test, it is unnecessary to decide that question. 102 It is not necessary for this Court to reconsider the earlier line of authority with respect to the power of the Court to make findings of fact. Plainly it is generally undesirable for this Court to exercise such a power, if any. The position is not, however, the same with respect to the exercise of a discretion which would fall within the word "assessment" in s75A(10) of the Supreme Court Act or within s57(2)(b) of the L&E Court Act. … 110 In my opinion, Maurici should not be followed insofar as it extended the restriction on this Court's power under s57(2)(b) beyond making findings of primary fact. It is unnecessary to determine the scope of s75A(6)(b) and (10). 75 It is unnecessary to deal with these issues about s75A. They were not part of the ratio of Thaina Town. In the light of what the High Court said in Roy Morgan Research about the VCAT Act s148 an issue may arise (at least in relation to the ADT Act and the Tribunal, though not, perhaps, the L and E Court Act and the Land and Environment Court) as to whether the Supreme Court's jurisdiction in the "appeal" is in fact a proceeding in original jurisdiction, and thus whether s75A has any relevant application. Nor is it necessary to consider whether the answer to any such question might be affected by the particular type of decision the Appeal Panel was reviewing and how it was reviewing it (for instance, whether it was conducting an internal or external appeal and whether it was conducting an appeal on a question of law or on the merits or (in relation to external appeals) on any other ground). What is relevant for present purposes, however, is that the phrase "appeal on a question of law" from a decision of a tribunal wholly or substantially carrying out functions of administrative decision making or review has been interpreted in the context of these similar Acts as describing a process of review (called an appeal) on an identified question of law, as the subject matter of the proceeding and does not extend to finding facts. 76 Further, Thaina Town was directed to power and relief once an error of law was displayed. It is not authority for a proposition that an "appeal on a question of law" under the ADT Act, s119 or the appeal under the L and E Court Act, s57 was one which only need involve a question of law to factual issues to come within the task of the Court, as is contended for here by the appellant. 77 There is no authority (with the possible exception of De Domenico) to support the argument of the appellant that this Court should engage in an appeal by way of rehearing once a question of law for debate is identified in the Appeal Panel's decision. 78 On the authorities in this Court left undisturbed by Thaina Town, even if an error of law were demonstrated, this Court has no authority to engage in fact finding on the merits of the case. To do so would be contrary to the structure of ss113 and 119. It would also be contrary to how this kind of provision has been interpreted in cognate statutes around Australia (with the possible exception of De Domenico). 79 To the extent that Thaina Town and the reservations in Vetter and Amaca may throw up the possibility that the Supreme Court Act, s75A may widen the powers of the Court to encompass the finding of facts, they only raise that possibility in the context of assessing the power of the Court if an examination of a question of law reveals an error of law. That possibility need not be decided in this case, because for the reasons expressed in the next section, the Appeal Panel's decision reveals no error of law. The relevant decision of the Appeal Panel, the complaints in relation thereto and the disposition thereof 80 In the third hearing, the Appeal Panel examined the evidence placed before it by the parties. It adhered to its views expressed in the second hearing that the entities were not employees and concluded, also, that all but five of the entities satisfied the Pay-roll Tax Act, s3A(1)(f). These five contractors were identified as C1, C6, C10, C29 and C31. 81 At [68] and [69] of its reasons the Appeal Panel summarised the evidence from their second judgment that related to what it referred to as the "two-person exemption" in s3A(1)(f) and that evidence was relied on by the solicitor for the appellants before the Appeal Panel, as follows: 68 In the second appeal judgment at [61-63] and [71-73], we summarised this evidence as follows:- 61 A document headed 'Terms of Engagement', in some instances on the letterhead of L & B and containing a signature on its behalf, was signed by or on behalf of each of the entities before it was engaged for the first time by L & B. The dates of 12 such documents, bearing signatures by or on behalf of all but one of 13 entities that were engaged on the six sample projects, ranged between 6 August 1993 and 8 February 2002. If one of these documents signed on an entity's behalf was mislaid, L & B would require another one to be signed. 62 Each of these documents stated as follows:- It is hereby agreed that the engagement of [name of entity] by L & B Linings Pty Limited for the fixing and setting of Plasterboard/Cornices [in some instances, a full stop appeared here] L & B Linings Pty Limited does acknowledge that the subcontractor may employ/engage any appropriately qualified person to perform or assist the subcontractor in the performance of its contractual obligations. 63 L & B played no role in selecting 'appropriately qualified persons' to whom the entities were authorised to delegate performance of their contractual obligations. Sometimes, it engaged one or more entities to carry out specified tasks, in the knowledge that some further subcontracting might occur. Only when the tasks were completed would it be advised of the identity of the subcontractors, in which event it might be asked by the entity or entities concerned to make payments directly to these subcontractors. 71 They [the entities] were also required to ensure that plasterboard sheets and lengths of cornice – which were often of substantial size and weight – were lifted and put in place by not less than two workers. This requirement was corroborated in four items of evidence: (a) a 20-minute CD-Rom, made in 2004 by the Association of Wall & Ceiling Installers, depicting the installation of plasterboard and cornices in suburban residential settings; (b) a 20-minute video entitled 'Your Guide to Safe Handling in the Plasterboard Industry', made by Boral, CSR Gyprock and Lafarge Plasterboard, who are three large suppliers of plasterboard and cornice; (c) two editions (January 2001 and September 2003) of a booklet put out by CSR entitled 'Gyprock – Residential Installation Guide'; and (d) statements by four contract builders for whom the Appellants carried out lining projects, indicating that they insisted on compliance with this requirement. 72 Mr Saraikin and Mr Kirpichnikov were both involved in the making of the CD-Rom. In evidence, Mr Saraikin estimated that the weight of one of the sheets of plasterboard shown in it was between 60 and 80 kilograms. He said that the length of a strip of cornice shown in it was 5.4 metres. He said also that although machines for lifting plasterboard sheets were available for hire, they were not suitable for use in homebuilding because the rooms were not large enough. He added that this was illustrated at one point in the CD-Rom. 69 We returned to this issue at [97], [116], [134-135] and [141] … 97… Mr Latham [counsel for the Commissioner] referred to some concessions made by Mr Saraikin during cross-examination, to the effect that workers engaged in installing cornices or sanding could operate alone and that plasterboard-lifting machines were available for hire. It followed, he said, that it had not been proved that more than one person was regularly if not invariably engaged on the tasks that the entities performed. An alternative possibility was that, when an entity required assistance to perform a task, it would be provided by another entity. There was, he said, no evidence on this matter either. 116 In a passage which the Tribunal quoted in part at [72], Mr Saraikin displayed considerable reluctance to concede that entities could, in some circumstances, work alone or that he himself had actually observed individual entities (specified in the questions) doing this. He made what appears to be a legitimate point, namely, that it would be more feasible for a sander than for someone installing plasterboard or cornice. But under pressure he then admitted that while it was 'impractical' for cornice workers, it was not impossible. When Mr Latham showed him two documents (which were then admitted into evidence), indicating that machinery for lifting and installing sheets of plasterboard was available for hire, his response was that using such machinery to line a residential home was not 'practical' because the spaces were too small. He referred rather vaguely to the prospect of 'a lot of mucking around' if their use was attempted. 134… except only on the availability of machines for lifting plasterboard sheets, the Commissioner did not adduce any evidence on relevant aspects of the relationships between L & B and the entities. The Commissioner relied instead on the existence of alleged gaps and deficiencies in the Appellants' documentary evidence and on unsatisfactory elements in the testimony of three of their witnesses. We agree that there are significant gaps in the documentary evidence, but do not think that Mr Latham's challenges to the authenticity of specific documents and their capacity to reflect the true intentions of the parties were made out (see [105], [107] above). We agree also that the testimony given by the witnesses in question was at times unconvincing and/or evasive, but not that their evidence on the specific range of issues that are relevant in determining the status of the entities should for this reason be disbelieved (see [119] above). 135 With regard to the particular question on which the Commissioner did adduce evidence, we consider that that evidence – indicating as it did that machines for lifting plasterboard sheets were available for hire – provided grounds for doubting Mr Saraikin's contention that it was impossible for only one person to lift the plasterboard sheets that were installed by the entities. But Mr Saraikin responded, both in his affidavit and in cross-examination, by claiming that these machines were too large and unwieldy to be used in a practical way in residential dwellings. This was an effective response, which was not countered by further evidence or argument on the Commissioner's behalf. The Commissioner indeed produced no evidence at all to suggest that the entities did in fact use such machines during 2001-02. 141 In our opinion, having regard to the limited evidence put on by the Commissioner and the other considerations that we have just discussed, the Appellants' evidence sufficiently establishes a number of matters that are specifically relevant to determining the status of the 36 contentious entities (or of some of them) during 2001-02 … For practical reasons, and to ensure personal safety, some of the operations associated with installing plasterboard or cornices (notably bringing large plasterboard sheets or substantial lengths of cornice to the room where they were to be installed and lifting them to the appropriate place on a ceiling or a wall) could not be performed by one person alone. This did not apply, however, to the task of sanding. 82 The Appeal Panel then referred to evidence that the solicitor for the appellants specifically sought to rely upon. At [71]-[75] of its reasons the Appeal Panel said the following: 71 It is convenient to outline here the most important parts of this material. They relate to what Mr Eager called the 'team cases'. Paragraph 5.4 of the Objections, which along with other relevant parts of the Objections was verified in the affidavit sworn by Mr Saraikin, commenced by referring to the Terms of Engagement that we have just described. It then stated that L & B played no part in selecting the 'appropriately qualified persons' that the entities, pursuant to this document, were authorised to engage. 72 Paragraph 5.4 continued as follows (in this quotation, the numbers of the entities have been substituted for their names, and except where indicated the entities concerned were sole traders):- It [L & B] does award some subcontracts [to] subcontractors that form teams. For example, B6 [this company was a non-contentious entity] and C29 generally subcontract on behalf of a team the identity of each member of which becomes known to L & B Linings only when a claim for payment is submitted by B6 and C29 at the conclusion of a particular job or series of jobs. In such cases, at the direction of B6 and C29 representatives, L & B Linings pays part of the contract price to the 'sub-sub-contractor' in question: for example C8 and/or C20 and/or C23 and/or C35 and/or C38… Similarly C1 [a partnership] and C31 subcontracted as a team on an equal share basis with [one of the partners in C1] as the spokesman. 73 A further passage of relevance in the Objections is the final sentence of paragraph 5.9:- In the 'team' cases each member of the team for the particular job must provide their own (tax) invoice to L & B Linings – e.g. for B6-C29 + C1-C31… team cases. 74 Relying on all this evidentiary material, Mr Eager submitted that the Appellants had discharged the onus of proving, with regard to the services that each of the entities supplied to L & B during 2001-02, that the work to which those services related was performed by two or more persons in circumstances falling within s. 3A(1)(f) of the Act. 75 With specific reference to the 'team' cases, he submitted that each entity in a team 'provided services for' the other entity or entities in the team, as well as for L & B. With reference to the cases not involving a 'team', he submitted that either (a) one or more 'appropriately qualified persons' whom the entity had engaged in accordance with the Terms of Engagement 'provided services for' the entity or (b) the two or more people who carried out the task were employees of an entity which was incorporated or were partners in an entity established as a partnership. In these different ways, he submitted, the requirements of s. 3A(1)(f) were satisfied in every case. 83 From [76] to [91] of its reasons the Appeal Panel dealt, at length, with the submissions of the parties as to whether the statutory phrase "provide services for" must be (and be proved to be) under a legal relationship of independent contractor. The Appeal Panel agreed with the submissions put by the solicitor for the appellants that this was not required. The following conclusions were reached about this at [91] of the reasons: 91 In our opinion, the arguments made by Mr Eager on these matters must be preferred. We agree with him that the key phrase 'provide services for' in each of the three subparagraphs in s. 3A(1)(f) does not contain a requirement, express or implied, that the services must be provided for reward under a contract, let alone that the status of the 'second person' vis-à-vis the 'contractor' must be that of independent contractor. We would suggest, in fact, that in putting forward a spouse as an example of a 'person engaged', the OSR, in the Note in Revenue Ruling PT4 that has just been quoted, could be taken to have implied that in its opinion a person providing services on a voluntary basis could qualify as an appropriate 'second person'. Furthermore, in so far as Mr Latham's submissions suggested that the true characterisation of the contractual relationship between a contractor and a 'second person' must be proved in order to take advantage of the two-person exemption, this could have the highly undesirable effect of requiring the taxpayer to prove whether the 'second person' was an employee or an independent contractor. As this litigation has demonstrated all too well, resolving this issue can be an arduous and expensive task. 84 No complaint was made in the appeal in this Court about this conclusion. 85 In the following three paragraphs, the Appeal Panel sought to elucidate the true issue before it by saying the following: 92 For these reasons, we see the key issue arising under s. 3A(1)(f) as simply being whether or not the 'second person' works for the contractor, either in the capacity of employee or in some other capacity involving the provision of services to the contractor. The term 'engaged by' appears to us to describe reasonably accurately the second of these alternatives, if not also the first. What matters most is that the 'second person' must not have worked for, been engaged by or 'provided services to', the 'designated person'. 93 In this connection, the following further extract from the judgment in Zuccala strikes us as useful:- 15. The second ground of contention was that the services provided by the stump hole digger were provided not for the Debeleks but for Zuccala. There is in my view no necessary disjunction. In truth the contractor employed by the Debeleks does the work for the benefit of a number of people: not necessarily in order, they would be for himself so he could get paid, for the Debeleks so that they would be moved to pay him, and for Zuccala Homes, and others down the chain, so that the house might have a decent chance of staying aloft and they might have a decent chance of getting other jobs. It seems to me that the primary people for whom they are providing the services are the people who are asking them to perform them, and who are paying them to perform them. They are the Debeleks. Accordingly, I reject the second ground of contention. 94 It follows from this conclusion that the mere fact that in their evidence the Appellants did not establish the nature or even (except perhaps by implication) the existence of 'separate contractual relationships' between the entities and L & B is not enough of itself to debar them from claiming the two-person exemption. 86 No specific complaint was made about these paragraphs, though they do have a relevance to one argument as to legal error to which I will come. On their face, these paragraphs might be seen to betray an incorrect focus on the designated person, rather than on the words of the provision: "provide services for … the contractor". The better view, however, is that read in their context, they are merely an expression, in these circumstances, of the relevant question – the services must be provided for the contractor (not the designated person). Thus understood, these paragraphs do not betray any error in focus in respect of the question to be addressed. 87 After some further discussion, the Appeal Panel, at [103]-[109] of its reasons, set out its approach to the evidence regarding the "two-person exemption", that is s3A(1)(f). The Appeal Panel correctly stated that the appellants bore the onus of proof of establishing the facts on which they rely in objecting to the assessments. At [104], [105], [107] and [109], the Appeal Panel set out the arguments of the appellants as to evidence and its general acceptance of those arguments: 104 The principal components of the evidence on which the Appellants relied in this context are (a) the material, summarised above at [68 – 69], indicating that on account of practical considerations (including, in particular, considerations of health and safety), the tasks of installing plasterboard and cornices call for physical labour on the part of two or more people working together; (b) the documents and oral testimony depicting L & B's general practice of engaging one entity at a time to perform a specific task of this nature, with the expectation that that entity would involve one or more other people in the completion of this task; and (c) the existence of formal documents, headed Terms of Engagement, by which L & B authorised the entities to engage appropriately qualified people for this purpose, without any need for prior approval by L & B. 105 Implicitly, the Appellants, in basing their claim to exemption on evidence of this nature, invited us to accept the proposition that the requirements of s. 3A(1)(f) could be satisfied with regard to the payments made to all 15 of the relevant entities by showing that the standard practice adopted by L & B and these entities involved arrangements falling within the scope of this provision. To put this point in another way, we have been invited to rule that the Appellants, in seeking to invoke the exemption for all of L & B's payments to these 15 entities, are not inevitably bound to adduce evidence specifically demonstrating that such an arrangement was an attribute of each and every task performed for it by each and every one of these entities. … 107 In general terms, we agree with this aspect of the Appellants' argument. From a practical point of view, the provision creating the two-person exemption would be unworkable if a taxpayer seeking to invoke it with respect to a series of payments made to one or more independent contractors was compelled to adduce documentary and/or oral evidence establishing, with regard to each individual payment, both (a) the engagement of one or more identified 'second persons' by the contractor in order to carry out the task that the contractor had agreed to perform for the taxpayer and (b) actual participation in this task by the second person or persons. A case like the present, involving numerous small-scale tasks that were performed by numerous contractors and (allegedly) numerous 'second persons', illustrates clearly why such a requirement would impose an undue burden on taxpayers and, indeed, on the Commissioner. The Commissioner would be bound to scrutinise detailed evidence of this nature before deciding whether any claim for the exemption should be accepted. … 109 On the other hand, what we have called evidence of the standard practice adopted by a taxpayer in dealing with contractors should not prevail in the face of countervailing evidence suggesting that in any particular instance the taxpayer failed to satisfy the requirements of the two-person exemption. 88 The Appeal Panel then turned to the "new evidence" (including the notices under the Administration Act, s72, referred to below) led on the third hearing, noting the following at [110]: .… The new evidence suggests that some at least of the 15 entities did not make significant payments to employees or subcontractors whom they had engaged, and also contains assertions by a couple of them that they have worked alone on jobs undertaken for L & B. We treat this evidence as having the potential, in individual cases, to rebut the general inferences that the Appellants would wish us to draw from the evidence on which they relied. 89 At [111] and [112] of its reasons the Appeal Panel rejected a suggestion put by the appellants that Jones v Dunkel inferences should be drawn against the Commissioner if he did not produce relevant documentary evidence. This was rejected. The Appeal Panel expressed its conclusions as to the examination of the evidence at [113] of its reasons, as follows: 113 Accordingly, our view regarding the new evidence is this. In the present context, it should be scrutinised solely in order to determine the extent to which, assessed on its merits, it serves to strengthen or to weaken the case for inferring from the Appellants' evidence the factual matters which they must establish in order to attract the two-person exemption. 90 After dealing with various of the entities in a manner favourable to the appellants, at [119] to [129] of its reasons the Appeal Panel expressed its views in what had been debated before it as the "team cases". It was prepared to find that, except in two categories of cases (with which this appeal is concerned), the evidence regarding the standard practice of L & B and the relevant entities proved that the circumstances fell within either paragraph (f)(i) or (ii) of s3A(1). The two categories were: entities C1, C29 and C31, and entities C6 and C10. The conclusion of the Appeal Panel in respect of these entities was that the evidence before it was insufficient to establish the matters in s3A(1)(f). 91 As to the first group (C1, C29 and C31), the Appeal Panel said that the evidence that it had summarised in [71]-[73] of its reasons (see above) "… leaves open the possibility that in some at least of the relevant jobs the work was performed by two or more entities each of which entered into a contract with L & B." 92 The Appeal Panel continued at [122]-[123] as follows: 122 … We refer here to the following statements in paras 5.4 and 5.9 of the Objections:- 5.4 It [L & B] does award some subcontracts [to] subcontractors that form teams. For example, B6 [this company was a non-contentious entity] and C29 generally subcontract on behalf of a team … Similarly C1 [a partnership] and C31 subcontracted as a team on an equal share basis with [one of the partners in C1] as the spokesman. 5.9… In the 'team' cases each member of the team for the particular job must provide their own (tax) invoice to L & B Linings – e.g. for B6-C29 + C1-C31… team cases. 123 We recognise that the remainder of the second sentence of paragraph 5.4, together with the third sentence, qualifies what we have just quoted in a way that lends support to Mr Eager's submission. Yet this qualifying passage is itself qualified by the word 'generally', which we have italicised in reproducing the passage here:- For example, B6 [this company was a non-contentious entity] and C29 generally subcontract on behalf of a team the identity of each member of which becomes known to L & B Linings only when a claim for payment is submitted by B6 and C29 at the conclusion of a particular job or series of jobs. In such cases, at the direction of B6 and C29 representatives, L & B Linings pays part of the contract price to the 'sub-sub-contractor' in question: for example C8 and/or C20 and/or C23 and/or C35 and/or C38… 93 Then, at [124]-[127] of its reasons, the Appeal Panel expressed its views for concluding that the appellants had failed to discharge the onus in respect of entities C1, C29 and C31: 124 In our opinion, if the substance of an arrangement reached between L & B and a 'team' comprising two or more entities was that the entities would complete the relevant task, the possibility, to say the least, arises that no-one else was engaged who could be said to have played the role of a 'second person'. We do not agree with Mr Eager that in such a case the entities involved could relevantly be said to have 'provided services for' each other. Any such services would be indirect only, in the sense suggested in paragraph 15 of the judgment in Zuccala Homes Pty Ltd v Commissioner of State Revenue (Victoria) (1994) 94 ATC 2084 (see [93] above). We would characterise L & B as the 'primary people', in the sense in which that term was used in the following sentence in that paragraph:- … the primary people for whom they are providing the services are the people who are asking them to perform them, and who are paying them to perform them. 125 We realise that according to the passage last quoted from the Objections, it was 'generally' the case that a 'sub-sub-contractor' was involved as well as the entities to which L & B entrusted the relevant task. But we do not see how the Appellants, who bear the onus, can claim an exemption from tax assessed with reference to a number of payments to a 'team' of entities when, according to their own evidence, it was only 'generally' that the arrangements pursuant to which those payments were made fell within the exempting provision. 126 We note also that the assertion that 'generally' a 'sub-sub-contractor' was engaged was made with reference to only one of the relevant 'teams' – B6 and C20. It did not expressly relate to the team comprising C1 and C31. With regard to the latter team, the significant statement in the Objections was that 'it subcontracted as a team on an equal share basis with [one of the partners in C1] as the spokesman'. 127 For these reasons, we conclude that the Appellants have failed to prove that they are entitled to the two-person exemption with respect to the payments made by L & B to the following contentious entities: C1, C29 and C31. 94 A significant part of the attack on this aspect of the Appeal Panel's reasoning was comprised of a misdirected attack on the fact finding of the Appeal Panel. For the reasons discussed earlier, there is no need to address these arguments. 95 The appellants also submitted that two errors of law infected this part of the Appeal Panel's reasons. The first asserted legal error was a failure to interpret the Pay-roll Tax Act, s3A(1)(f) correctly. The proper interpretation of the relevant statutory provision is most certainly a question of law. During the argument, one, possibly two, arguments were put forward. 96 It was first submitted that the Appeal Panel had impermissibly inserted, in effect, the word "primarily" after the word "services" and before the word "for" in each of subparagraphs (i), (ii) and (iii) of paragraph (f). This could be seen, it was said, from the extract quoted in [124] from Zuccala Homes Pty Ltd v Commissioner of State Revenue (Victoria) (1994) 94 ATC 2084. I reject this submission. When one reads the extract from Zuccala Homes that the Appeal Panel were quoting, it is clear that all that is the subject of the Appeal Panel's consideration is the notion that there are a number of ways one can assess the benefit of services being undertaken. In my view, it does not betray any error and I am not prepared to conclude that the Appeal Panel did otherwise than examine the question thrown up by s3A(1)(f), that is, "who provide services for… the contractor". 97 The second error which at times appeared to be asserted and at other times in the argument resiled from, was whether s3A(1)(f) was wide enough to cover circumstances where the entities that undertook the work need not be undertaking the work for an entity in the position of C1 or C29 or C31, but rather, that it was sufficient that the individual entities worked as a team, but provided the services to L & B or the principal. If that argument was propounded before the Appeal Panel it was rejected by the Appeal Panel, and correctly so. Section 3A(1)(f) is directed, in terms, to persons providing services for the contractor. That is the issue which has to be addressed. It was the issue addressed by the Appeal Panel. Whether or not the Appeal Panel's conclusions as to factual matters in that regard were correct or not is not to the point. The Appeal Panel directed itself to the correct question thrown up by s3A(1)(f)(i), (ii) and (iii) in the circumstances before it. 98 The second question of law which arose in relation to this first category was said to be based on the proposition that the factual conclusion that the appellants had failed to prove the matters in paragraph (f)(i) or (ii) was one which was not capable of being made in the sense discussed by Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 at 138, If the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. See to similar effect Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-356[87]. 99 The appellants sought to show that it was beyond question that the relevant entities had provided services for C1, C29 and C31, and that any question that the appellants had not discharged their onus was not legally open. Unfortunately, the evidence does not disclose that proposition with any clarity at all. The tax invoices attached to the submissions of the appellants and the invoices referred to in the submissions do not demonstrate that in respect of each of the entities nominated as C1, C29 and C31 another person or other persons provided services for them in a manner which demonstrated that the Appeal Panel could not be left in any legitimate and relevant doubt about the issue. The conclusion may well be seen to be a factually incorrect one but looking at all the material referred to by the Appeal Panel I do not think that the answer is incapable of factual debate. 100 In my view, there was and is no error of law vitiating the Appeal Panel's conclusions summarised at [127] of its reasons that the appellants had failed to prove that they were entitled to the exemption by satisfying s3A(1)(f) for C1, C29 and C31. 101 As to the second group (C6 and C10) the reasons of the Appeal Panel were set out in [128] and [129] as follows: 128 Contradicting answers in s. 72 notices. Finally, we turn to two entities – C6 and C10 – which stated in their answers to s. 72 notices that in the jobs that they undertook for L & B they worked 'by themselves'. While recognising that, as submitted by Mr Eager, the reliability of these answers (particularly the answers given by C6) is open to question, we do not think that they should be ignored. As we said in the second appeal judgment at [116] (this paragraph is quoted above at [69]), Mr Saraikin conceded in his oral evidence that working alone was 'impractical' for cornice workers, but was not impossible. Both C6 (a sole trader) and C10 (to all appearances, a one-man company) were cornice workers. It follows, in our opinion, that their statements are sufficient to prevent us drawing from the Appellants' evidence of the standard arrangements the inference that these two entities engaged one or more 'second persons'. 129 For these reasons, we conclude that the Appellants have failed to prove that they are entitled to the two-person exemption with respect to the payments made by L & B to the following contentious entities: C6 and C10. 102 There were three legal complaints about these conclusions. First it was said that an incorrect onus of proof had been utilised by the Appeal Panel. Secondly, it was stated that the rule in Jones v Dunkel had not been applied properly. Thirdly it was said that the principle in Browne v Dunn had not been complied with. 103 The proposition that the Appeal Panel applied an incorrect onus of proof was based on the Appeal Panel using what was described as "untested, self-serving, unexplained assertions of fact" made by two men, Mr Blundell and Mr Downes who were, or were the principals of, C6 and C10, in their so-called hearsay statements which the Appeal Panel took as rebutting the general evidence that it was otherwise prepared to accept to establish the satisfaction of s3A(1)(f). This complaint was that the Appeal Panel took into account answers given by these two men in notices issued by the Commissioner under s72(1)(c) of the Administration Act. In these notices, the two men concerned had answered a question in terms that led to a clear conclusion that they had worked by themselves in the relevant work. There was an issue about the questions to which these answers were given in that they had been asked in respect of B & L, rather than L & B. However, the hearing appeared to have proceeded on the basis that the answers could only have been relevant to L & B, because B & L never retained any of these men. 104 Thus, the complaint appears to be that the Appeal Panel used an incorrect onus of proof because it allowed these statements to outweigh the general evidence. Not only is the proposition logically flawed, it does not do justice to the answers in the s72 notices. The Appeal Panel was perfectly entitled to take into account this material. It was put forward by the Commissioner. It directly concerned entities C6 and C10. The Appeal Panel was not bound by the rules of evidence: see the ADT Act, s73(2). Nothing in the approach of [128] and [129] reveals any application of any onus of proof other than the balance of probabilities. No error of law is disclosed. 105 The other questions of law raised in relation to these entities relied on Jones v Dunkel and Browne v Dunn. These complaints are without foundation in the terms that they are made. Jones v Dunkel did not apply. The Commissioner was not responsible for calling Mr Blundell or Mr Downes. They were not witnesses in the Commissioner's camp. Even if it be the case that some question arose about the Commissioner not calling witnesses within his camp, the so-called principle in Jones v Dunkel is an aspect of fact finding. There is no obligation on a trier of fact to apply it. It is a consideration which is open to the trier of fact in the process of fact finding. In any case, the principle was entirely irrelevant here. 106 As to the application of the rule in Browne v Dunn in terms this was also irrelevant. No issue arose here about the conduct of the questioning of witnesses. The principle in Browne v Dunn is an aspect of the fair conduct of hearings. During the course of debate in Court it became evident that if the appellants had a complaint about how the s72 notices had been deployed by the Appeal Panel, it was one of a lack of procedural fairness in the Appeal Panel relying on them without somehow making clear that it was intending to do so. This complaint is also without foundation. It became evident in argument that the question of the probative relevance of s72 notices, in relation to this very question, was clearly drawn to the attention of those participating in the hearing before the Appeal Panel, on a number of occasions. As the Full Court of the Federal Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 590-592: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41. … Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made . The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material . Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. [Emphasis added] 107 The material to which we were referred on appeal makes it plain that the proceeding before the Appeal Panel was conducted in a way which made it clear that the s72 notices were relevant to weighing the evidence as to the question of the application of s3A(1)(f) to entities C6 and C10. 108 At the end of the appeal in this Court, it was not clear whether the procedural fairness complaint was truly pressed. To the extent that it was pressed, in my view, it should fail because the issue of the evidential character and role of the s72 notices was plainly before the parties at the hearing before the Appeal Panel. 109 In my view, no error of law has been made out in relation to the Appeal Panel's decision in relation to the second category. 110 For the above reasons, the appeal should be dismissed with costs. Orders 111 The substantive order made by the Appeal Panel was in the following terms: The Appeal Panel upholds the Appellants' objections to assessment for pay-roll tax, penalty tax and interest on remuneration paid by the Second Appellant to all of the 36 'entities' that have been identified in these proceedings as 'contentious', save for the following: C1, C6, C10, C29 and C31. 112 Given the conclusion that the Appeal Panel came to, fresh assessments were required to be made. No order has been made which affect the existence of the original assessments, other than the "upholding" of objections to assessments. At the hearing, the Court asked for submissions as to the appropriate order should it conclude that there was no legal error displayed in the Appeal Panel decision. 113 There was some measure of agreement between the parties. It is agreed that the assessments in respect of both B & L and L & B for the four years (ended 30 June 2000, 2001, 2002 and 2003) be revoked. This reflects the agreement that the issues dealt with by the Tribunal and Appeal Panel governed all four years. The respondent submitted a further order should be made that the matter be remitted to him for determination in accordance with the Appeal Panel's decision of 2 July 2007. The appellants accepted that wording, but sought greater specificity in that the order should identify amounts of taxable wages of B & L, L & B and the group that were set out in the draft order. 114 I do not think that the order should descend into the specificity requested by the appellants. The terms suggested by the respondent are appropriate. 115 There was also an issue about costs of the appeal raised by the appellants in correspondence sent to the Court after the hearing of the appeal under the cover of a discussion about orders. This should have been raised in the argument of the appeal; nevertheless, I will deal with it. The appellants relied on UCP Rule 51.41. They said that if the appeal was dismissed it would be dismissed as incompetent not being on a question of law. 116 This submission also contains a misunderstanding of the nature of the Court's jurisdiction under s119. The finding of no error of law in the reasons of the Appeal Panel does not mean that there was no question of law propounded and does not mean that the appeal was incompetent. The appeal was brought on a number of questions of law. No error was found. The appeal was competent but is liable to be dismissed: see generally Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7; 59 CLR 369 at 391 as to the difference between issues going to jurisdiction and issues to be dealt with in the exercise of jurisdiction. 117 There was a question initially as to whether leave to appeal was required. The point was not taken at the hearing. The parties were agreed that the appeal was competent in this regard. The issue is therefore not live. If leave were required I would grant leave. 118 There is one aspect of costs which should, however, be the subject of comment. The misunderstanding of the role of the Court on the appeal led to great expense being undertaken in respect of the claims of factual error. Also, there was excessive repetition of written submissions. The parties to an appeal have a responsibility to be diligent in limiting, as far as reasonably can be done, the size and number of appeal papers. 119 In my view the orders of the Court should be: 1. The notices of assessment issued by the Chief Commissioner of State Revenue to B & L Linings Pty Limited and to L & B Linings Pty Limited for the financial years ending 30 June 2000, 30 June 2001, 30 June 2002 and 30 June 2003 be revoked. 2. The assessment of pay-roll tax for B & L Linings Pty Limited and L & B Linings Pty Limited for the four years referred to in order 1 above be remitted to the said Chief Commissioner for determination in accordance with the decision of the Administrative Decisions Tribunal Appeal Panel dated 2 July 2007. 3. Otherwise dismiss the appeal with costs. 120 GILES JA: I agree with Allsop P. 121 BASTEN JA: I agree with the orders proposed by Allsop P and with his Honour's reasons. What follows is intended as a further explanation of the jurisdiction of this Court in hearing and determining the appeal. 122 As parties to proceedings before an Appeal Panel of the Administrative Decisions Tribunal, the appellants had a right to appeal to the Court "on a question of law" against any decision of the Appeal Panel in those proceedings: Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act"), s 119(1). The first step in considering the operation of this provision is to identify the "decision" of the Appeal Panel against which the appeal is brought. Although the Appeal Panel handed down three separate decisions, the notice of appeal identified the relevant proceedings as those decided on 2 July 2007 and identified the relevant part of the decision as the conclusion that the appellants were not entitled to the benefit of the 'two-person exemption' under the Payroll Tax Act 1971 (NSW), sub-paragraph 3A(1)(f)(i), (ii) or (iii), with respect to payments made by the second appellant to each of "'contentious entities C1, C6, C10, C29 and C31' in the financial year ended 30 June 2002". That identified the exceptions to order 1 made by the Tribunal on 2 July 2007, which read as follows: "1. The Appeal Panel upholds the Appellants' objections to assessments for pay-roll tax, penalty tax and interest on remuneration paid by the Second Appellant to all of the 36 'entities' that have been identified in these proceedings as 'contentious', save for the following: C1, C6, C10, C29 and C31." 123 The jurisdiction of the Appeal Panel was invoked by the appellants against an "appealable decision" of the Tribunal (see s 112), being a decision of Block ADCJ delivered on 10 June 2005 holding that the various entities were employees of the second appellant. That appeal was made on a question of law, and, with leave of the Appeal Panel, was extended to a review of the merits of the appealable decision: see ADT Act, s 113(2). The jurisdiction of the Tribunal was initially invoked by the taxpayers "for a review of a decision … of the Chief Commissioner", pursuant to s 96(1) of the Taxation Administration Act 1996 (NSW). Although an application for review could only be made where the decision had been the subject of an objection and the taxpayer was dissatisfied with the determination of its objection, it was the assessments which were the subject of review. Accordingly, the form of the order made by the Appeal Panel was erroneous and requires amendment to reflect the decision of the Appeal Panel with respect to those assessments. These necessary variations to the orders made by the Appeal Panel are of a technical nature and were not the subject of the appellants' arguments in this Court. Indeed, the orders sought by the appellants were in the same form as those made by the Tribunal, although without the five exceptions listed by the Panel. 124 Having identified the relevant decision of the Appeal Panel, the next step required under s 119 of the ADT Act is to determine whether the decision was one with respect to which leave was required pursuant to s 119(1A). If the relevant decision had been "an interlocutory decision", leave would have been required. However, the matter proceeded in this Court on the basis that the appellants had an appeal as of right. 125 The third step required by s 119 is to identify any "question of law" upon which the appeal is brought. It is not necessary that the answer to the question of law constitutes the ultimate decision of the Tribunal, so long as it is a question material to the decision: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14]-[16]. Although there may have been some doubt as to whether each of the grounds identified in the notice of appeal raised a question of law, some undoubtedly did and were material to the decision reached by the Tribunal. 126 The nature of this Court's jurisdiction must therefore be addressed on the basis that the appellants had identified one or more questions of law material to the decision of the Appeal Panel against which they appealed. The potential scope of the Court's jurisdiction may, in abstract terms, be described as follows: (a) to determine whether the question of law has been erroneously answered; (b) if so, to determine the correct answers to the questions of law; (c) to make such orders disposing of the proceedings before the Tribunal as are necessary, based on the findings of fact made and inferences drawn by the Tribunal and where no other conclusion is open; (d) to make appropriate orders, including in the exercise of discretionary powers; (e) for the purpose of making appropriate orders, to draw inferences from facts found by the Tribunal; (f) for the purpose of making appropriate orders, to make further findings of fact based on the evidence before the Tribunal; (g) where a non-colourable question of law has been raised, even if not made good, to conduct a rehearing of the proceedings before the Tribunal. 127 The appellants argued in favour of a power extending to par (g), although authority in this Court presently extends no further than (d), and then only in the limited circumstances noted by the President as arising from the decision in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150. Prior to Thaina Town, authority limited the powers to pars (a)-(c). For the reasons set out below, the appellants' contention must be rejected. 128 Whether the novelty of the appellants' contention was fully appreciated was unclear, although that seems improbable, given the limited assistance provided to the Court in addressing the contention. If correct, as identified by the President, the approach would require a departure from long lines of authority in different jurisdictions on the basis that such authorities were based upon some misapprehension or decided on a false premise. 129 This case is to be distinguished from authorities upholding the accrued jurisdiction of the Federal Court, being claims for relief arising out of the same subject matter as the statutory claim, so long as the statutory claim was non-colourable and not raised as a subterfuge for attracting the accrued jurisdiction: see, eg, Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 565 (Davies J), followed in New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 131 ALR 559 at 573-574 (Hill J). The difference in the present case is that the statutory entitlement to relief relied upon by the appellants is the sole basis upon which relief can be claimed: either it is properly invoked or it is not. The answer to that question turns on the proper construction of the statutory provisions. 130 Before turning to the specific questions of statutory construction arising in the present case, it is helpful to note the approach adopted in relation to the supervisory jurisdiction of the Court exercised through the grant of relief in the nature of prerogative writs. 131 Clearly an appeal limited to a question of law is not to be equated with the exercise of the Court's supervisory jurisdiction to grant prerogative relief, although the differences may be of limited significance where the supervisory jurisdiction is exercised in relation to an inferior court. The differences are further reduced by statutory provisions expanding the face of the record to include the reasons of an inferior court or tribunal: Supreme Court Act 1970 (NSW), s 69(4). Putting to one side differences between jurisdictional error and errors of law within jurisdiction, the purpose of each procedure is similar in that it is designed to ensure that the tribunal in question operates within its legal limits and applies correct law. The limited scope of judicial review involves an acceptance that other questions are, in accordance with the relevant statutory scheme, to be determined finally by the tribunal. A similar purpose can be identified underlying statutes which confer jurisdiction on a tribunal and provide an appeal limited to questions of law. When, as in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 15 (Moffitt P) and at 22 (Mahoney JA) the courts rail against apparently erroneous fact-finding, they are implicitly acknowledging their impotence to interfere. While it should be accepted that a statutory provision conferring jurisdiction on a court will not be read as subject to any implied limitation (see The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 5; 181 CLR 404 at 421) and will be given "no narrow construction" (see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [11]), clear limitations must, nevertheless, be given full effect so as to accord with the expression of parliamentary intention to confer exclusive fact-finding power on the tribunal, without any right of appeal. 132 Effect is given to these principles in the area of judicial review, by the courts declining to take upon themselves the decision-making function of the tribunal. Where jurisdictional error is identified, invalidating the decision reached by the tribunal, the correct course is usually to return the matter to the tribunal for determination in accordance with law, in circumstances where the statute has conditioned the exercise of a power upon the tribunal's satisfaction as to identified matters: see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 579. By contrast, where the tribunal satisfied itself of all relevant preconditions, and where the statutory satisfaction of those preconditions carried with it an obligation to exercise the power, but the tribunal declined to act because it thought, legally erroneously, that there were further matters to be satisfied, the court may remit the matter with a direction that the tribunal exercise its power: see Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [39]-[42]. 133 A similar approach has generally been upheld in relation to appeals limited to questions of law, as illustrated by the authorities referred to by the President. In such a case, final orders may be made by the Court, but in limited circumstances. Boehringer Ingelheim was one such case, the Court being satisfied that there was no evidence to support an essential aspect of a claim, with the result that the Tribunal could properly have made no order other than one dismissing the complaint, an order which was accordingly properly available to the Court in the circumstances. More generally, as explained by Mason JA (when on this Court) in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557: "[I]t may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law. The principle has been enunciated that, if different conclusions are reasonably open, the determination of which is the correct conclusion is a question of fact." 134 This approach was cited with approval in Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [26]. See also the discussion in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [148]-[159]. 135 The approach required in the present case depends upon the proper construction of the relevant statutory provisions. Generally, such provisions will involve three elements. The first is the conferral on an aggrieved party to a decision of a right to appeal. The second element will be the conferral on a court of jurisdiction to hear and determine the appeal. The third element will involve identification of the powers available to the court in the exercise of the specific jurisdiction. 136 Statutory provisions do not always distinguish clearly between the three elements. On occasion, a right of appeal is conferred on a dissatisfied party, without any express conferral of jurisdiction on the appellate court. Further, the powers of the court may well be undefined in relation to the subject matter of the statutory appeal, thereby revealing an intention that the court exercise such powers as it otherwise possesses. In the present case, s 119(1), referred to above, both confers a right of appeal and confers jurisdiction on the Supreme Court. The powers of the Court, together with a confirmation of jurisdiction, are contained in s 120 which provides as follows: " 120 Orders on appeal to the Supreme Court (1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Supreme Court on appeal include (but are not limited to): (a) an order affirming or setting aside the decision of the Appeal Panel, and (b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court." 137 Reading ss 119 and 120 together, the following propositions may be inferred. First, the subject matter of the proceedings in the Court is whether an identified decision of the Appeal Panel was affected by an erroneous determination of a question of law. It is that matter which the Court must determine. Secondly, having reached a decision on that matter, it may make "such orders as it thinks appropriate". Those orders are not at large: they must be appropriate to give effect to the decision reached. Thirdly, if the appellant is unsuccessful, it may be appropriate for the Court to "affirm" the decision of the Appeal Panel. Such an order should be understood in its statutory context, so that affirmation is understood as the absence of legal error. It has been said that "to affirm the original decision leaves the original decision intact": Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 175 (Brennan J), referred to with approval by Hayne and Heydon JJ in Nelson Guang Lai Shi v Migration Agents Registration Authority [2008] HCA 31 at [100]. In Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510, the High Court upheld the constitutional power of the Parliament to "restrict severely the jurisdiction of the Federal Court to review the legality of decisions of the Refugee Review Tribunal": at [50]. The powers of the Court in exercising that constrained jurisdiction, included the power to make an order affirming the decision under review: Migration Act 1958 (Cth), s 481(1). Gleeson CJ and McHugh J commented at [54]: "In a context for limited review of decisions of the Tribunal, the use of the term 'affirming' is certainly not the most appropriate term to use for disposing of an application which has failed. An order of the Federal Court affirming the decision is open to the construction that that court is affirming that the decision was correctly and lawfully made. However, the term 'affirm' is sometimes used in the context of appellate jurisdiction to indicate that the appeal has failed and that the decision below stands." 138 It follows that, in the present context, the use of such language does not indicate any expansion of the subject matter of the appeal so as to permit the Court to address questions other than the question of law identified by the appellant. This understanding of the subject matter and scope of the appeal has, as noted by Allsop P, been the construction adopted of the relevantly identical provision in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), at least since Brown v The Repatriation Commission (1985) 7 FCR 302; see [48] above. As the Full Court of the Federal Court explained in Brown, a different approach was required to that available under the former s 196 of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth), which permitted an appeal from a decision of the Taxation Board of Review that "involves a question of law". As their Honours noted, that language permitted "the whole case, and not merely the question of law" to be subject to the appeal, referring at 303 to Ruhamah Property Company Ltd v Federal Commissioner of Taxation [1928] HCA 22; 41 CLR 148; Krew v Federal Commissioner of Taxation (1971) 45 ALJR 249 and XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37; 124 CLR 343. 139 It is clear that the proper construction of ss 119 and 120, in accordance with well-established authority, precludes this Court from engaging in any review of a decision beyond determining material questions of law identified by the appellant. It would seem to follow that the powers of the Court do not extend to making an evaluative judgment based on primary facts as found by the Tribunal, or exercising a discretionary power vested in the Tribunal, unless the finding or order was the only one open. 140 Other statutory provisions limiting appeals to questions of law may be found in statutes conferring appeals from criminal proceedings. It is common for such appeals to be allowed as of right, against a decision "on a question of law alone": see, eg, Criminal Appeal Act 1912 (NSW), s 5(1)(a) (referring to an appeal against conviction "on any ground which involves a question of law alone") and Crimes (Appeal and Review) Act 2001 (NSW), s 56 (in relation to appeals from a Local Court to the Supreme Court, adopting similar language). In Williams v The Queen [1986] HCA 88; 161 CLR 278 at 287, Gibbs CJ stated: "In Reg v Jenkins [[1970] Tas SR 13 at 15], Crisp J correctly pointed out that a 'question of law alone' does not include a question of mixed fact and law and went on to say that 'there would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case'." 141 Wilson and Dawson JJ agreed with Gibbs CJ. Mason and Brennan JJ stated at 301-302: "An appeal lies on 'a question of law alone'. An appeal does not lie on a ground which involves a mixed question of fact and law …. An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence …" 142 The limited circumstances in which an exercise of discretion or an evaluative judgment may demonstrate error on a question of law have been discussed, with comprehensive reference to authority, in Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 (Spigelman CJ, Priestley JA agreeing). If these matters cannot be part of the decision of the Court in considering whether erroneous answers have been given to questions of law, it would seem inappropriate that they form part of the Court's consideration for the purpose of making orders. Thus, in explaining the limits to the scope of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), Mason CJ stated in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 341: "To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government. Amongst other things, such a change would bring in its train difficult questions concerning the extent to which the courts should take account of policy considerations when reviewing the making of findings of fact and the drawing of inferences of fact." 143 Similar questions would arise to the extent that the Court took upon itself, in formulating orders, the role of drawing inferences and exercising discretionary powers. As explained by the President, there is a long line of authority in this Court which would be inconsistent with such an approach and, subject to the consideration of one further statutory provision, would not permit departure from established principle, as explained in Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142; 68 NSWLR 131 at [39]-[65] (Giles JA, Tobias JA agreeing). 144 The further statutory provision which requires consideration is s 75A of the Supreme Court Act 1970 (NSW). That section relevantly provides: " 75A Appeal (1) Subject to subsections (2) and (3), this section applies to an appeal to the Court and to an appeal in proceedings in the Court. … (4) This section has effect subject to any Act. (5) Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing. (6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. (7) The Court may receive further evidence. … (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires." 145 The exceptions in sub-ss (2) and (3) largely exclude appeals arising out of trials with a jury, appeals from the Local Court and stated cases under the Criminal Appeal Act. In relation to civil jury trials, the powers are otherwise provided under ss 106 and 107: see generally Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375. 146 The first question concerns the application of s 75A, in so far as it involves the appellate jurisdiction of the Court. In relation to the Victorian Civil and Administrative Tribunal ("VCAT"), the joint judgment in Roy Morgan stated at [15]: "Section 148 of the [ Victorian Civil and Administrative Tribunal Act 1998 (Vic)] is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s 148 uses the word 'appeal', it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review." 147 This passage assumes a degree of separation of powers in State jurisdiction, which is more familiar with respect to federal jurisdiction. Thus their Honours further stated, in relation to an application for leave to appeal from the VCAT to the Supreme Court that it provided "the first engagement of judicial power and is an engagement of judicial power in respect of a controversy which is framed differently from, and more narrowly than, whatever may have been the controversy in the Tribunal": at [25]. However, these comments were made in a context in which a challenge had been raised to the refusal of leave to appeal, and a criticism made of the trial judge for failing to give reasons for refusing leave. The Court unanimously accepted that the decision to refuse leave, by a judge in the Trial Division, engaged the broad powers of appeal from decisions of single judges to the Court of Appeal. The comments should be understood in that context. In any event, there was no suggestion in Roy Morgan that what might be described in the VCAT Act as an "appeal" should not be treated as an "appeal" for the purposes of the Supreme Court Act. To that extent, the operation of s 75A should be understood as being engaged by an "appeal", so described, from a tribunal, whatever the appropriate constitutional classification of the tribunal in question. 148 Nevertheless, the purpose of s 75A is to confer on the Supreme Court particular powers, including the power to hear further evidence, which will result in an appeal subject to its terms being characterised as an appeal by way of rehearing. One consequence is that, although the Court must properly identify error in the tribunal below, it will be required to decide the rights of the parties "upon the facts and in accordance with the law as it exists at the time of hearing the appeal": CDJ v VAJ [1998] HCA 67; [1998] HCA 76; 197 CLR 172 at [111] (McHugh, Gummow and Callinan JJ), referring to Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73 at 107; referred to again in relation to the Federal Court in Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [70]-[71]. As was further stated in the joint judgment in CDJ v VAJ, at [95]: "If a right of appeal is conferred by statute, the terms of the statutory grant determine the nature of the appeal and consequently the right, if any, to adduce further evidence on the appeal." 149 It is clear that such an appeal is to be distinguished from an appeal in the strict sense, where the function of the appellate court is to determine "whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given": Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [12] (Gleeson CJ, Gaudron and Hayne JJ). An appeal on a question of law must also fall within a different and more limited category. It follows that, in so far as s 75A of the Supreme Court Act expressly provides that the appeal shall be by way of rehearing, it is, in categorical terms, inconsistent with a statutory provision conferring a more limited right of appeal. Section 75A must, in accordance with its own terms, have effect subject to the ADT Act: s 75A(4). Whether it applies at all might be an open question; it should not, in its terms, operate so as to affect the scope of the appeal conferred by sections to which it is, in its terms, subject. It does not operate to expand the scope of the appeal permitted by ss 119 and 120 of the ADT Act. 150 This conclusion, and the supporting reasoning, may need to be qualified to the extent that it is inconsistent with the decision of this Court in Thaina Town. However, for the reasons explained by the President at [75]-[79] above, the precise degree of inconsistency may be put to one side for present purposes. The function of this Court, exercising jurisdiction in relation to an appeal brought under s 119 of the ADT Act, is limited to the identification of an erroneous answer in respect of a question of law. For that purpose it is not required, and indeed is not entitled, to embark upon any review of the decision-making process of the Tribunal beyond that necessary to answer the appropriately identified questions of law. Thaina Town is not inconsistent with that conclusion. 151 In carrying out that exercise, I agree with the conclusions reached, for the reasons expressed, by Allsop P. Subject to the reformulation of the orders of the Tribunal as proposed by his Honour, I agree that the appeal must be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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