Re Jambro Pty Limited v Collector of Customs NSW [1987] FCA 369 (22 October 1987)

FEDERAL COURT OF AUSTRALIA

Re: JAMBRO PTY LIMITED
And: COLLECTOR OF CUSTOMS N.S.W.
No. G589 of 1986
Customs Tariff

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Neaves(2) and Burchett(3) JJ.

CATCHWORDS

Customs Tariff - appeal from AAT - Competing items of tariff - Question of construction - Caution in use of evidence of trade usage in respect of a new product which could be described by words used in different tariff items.

Customs Tariff Act 1982 - Items 73.31 & 73.34

HEARING

SYDNEY
22:10:1987

Counsel for the Applicant: Mr. G. Flick
Solicitor for the Applicant: Mr. B. McCarthy

Counsel for the Respondent: D.M. Yates

Solicitor for the Respondent: Australian Government Solicitor

ORDER

1. The appeal be dismissed with costs. 2. The exhibits may be returned. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

I agree with Burchett J. and only add a few words. On the only question of law which arises, and it is raised as one of the many grounds of appeal, there is nothing in the form of words used or in the context in which they appear to suggest that the language of each individually is used in other than its ordinary sense. What has been referred to as a nail and what has been referred to as a pin do indeed gain clarity from the context, and particularly the balance of the language in which each item is expressed.

2. The applicant places much reliance on the fact that there is a body of evidence from people within the building trade which goes to show - and it is contended unanimously shows - that the particular item is there referred to as a pin. The complaint is that the Tribunal has, in effect, ignored this evidence. It only goes to show, however, that there was a trade meaning associated with the items. In saying this I am conscious of course that when one refers to ordinary sense there is a degree of ambiguity but that is something that has always been capable of being worked out.

3. The trade meaning is relevant but does not show that more generically the items might not properly be regarded as nails. This is a matter upon which the Tribunal could form a conclusion and it held, as a matter of fact, that the items were more appropriately to be classified as nails.

4. In my view the appeal should be dismissed with costs.

I agree that the appeal should be dismissed with costs. I do not wish to add anything to what has already been said.

This is an appeal, so called, from a decision of the Administrative Appeals Tribunal. The question before the Administrative Appeals Tribunal was the correct classification, under the Customs Tariff Act 1982, of goods described as "collated fasteners".

2. Two items of the tariff competed for selection as appropriate: Item 73.31 and Item 73.34. The former reads:

"73.31 Nails, tacks, staples, hook-nails,
corrugated nails, spiked cramps,
studs, spikes and drawing pins, of
iron or steel, whether or not with
heads of other materials, but not
including those with heads of
copper."
The second reads:

"73.34 Pins (other than hatpins and other
ornamental pins and drawing pins),
hairpins, curling grips and the
like, of iron or steel."

3. There is a question of law involved, because there is a question of construction of these provisions. But if, upon its proper construction, either yields a meaning capable of embracing the applicant's collated fasteners, whether it actually does so is a question of fact.

4. The precise distinction between the tariff items is embarrassed by peculiarities of usage of the English language. There are nails which are commonly called pins (eg. panel pins), and the use of pins can be described by a word which also describes the use of a kind of nail (tacking). Such transfers of terminology suggest that the distinction between nails and pins is somewhat blurred. The tariff recognizes this by including drawing pins under the item which includes nails, and excluding them from the item which includes pins.

5. In a tariff which contrasts nails and pins, the fact that a particular kind of nail is known as a pin, though always regarded as a kind of nail, cannot reasonably lead to the conclusion that it falls within the tariff category of pins. That category seems rather to refer to things which would be broadly characterized as pins - it does not refer to a sub-category of nails, even if that sub-category is commonly distinguished from other nails by the word "pin".

6. The applicant refers to a trade usage by which the article in question is called a pin. But that could only bear on the construction of the tariff if the trade usage and the legislative usage were referring to the same thing. In reality, the trade usage refers to a sub-category of nail, while the legislation is furnishing a broader category within which a number of sub-categories may fall. There is nothing to indicate the legislation uses the word "nail" in other than its ordinary meaning. It is part of a collocation of words which conveys that meaning (cf. Whitton v. Falkiner [1915] HCA 38; (1915) 20 CLR 118 at 122).

7. Once the tariff is construed in this way, the question whether the articles in dispute do fall within the category of nails is a matter of fact. It may be conceded they were unusual nails, but it remained open to the Tribunal to find that nevertheless these particular articles were nails.

8. The applicant relies on D. & R. Henderson (Mfg) Pty. Ltd. v. Collector of Customs for the State of New South Wales (1974) 48 ALJR 132 at 134:

"Next, it is important to keep in mind that
trade usage is only relevant to the extent to
which it instructs as to the meaning of the
words 'coated, whether or not also
impregnated'. How the trade describes the
subject paper cannot determine the question
whether it answers the statutory description
(see Whitton v. Falkiner [1915] HCA 38; (1915), 20 CLR
118, at p 127), although it may give us some
insight into what the trade understands by
the expression 'coated paper'. Even so, it
is necessary to note that evidence as to
trade usage has a tendency to limit the
meaning of an expression to the denotation
which it has at a particular time without
making allowance for its capacity to extend
to new exemplifications which have the
characteristics of accepted denotations.
Where, as here, a new product comes into
existence which possesses the characteristics
of two different categories, evidence as to
trade usage needs to be scrutinized with
particular care."

The warning uttered by Mason J. in the last sentence is of special significance in the particular circumstances of this case, which also relates to a relatively new product. It is clear that the word "pin" is used in the building trade to refer to a type of nail. In other contexts, it describes something quite different. The evidence as to the usage of the trade has to be understood against that background.

9. The applicant also relies on Browne v. Dunn (1893) 6 R. 67. But it does not seem to me that this often-cited decision is of any real relevance. No witness was attacked, and the true question in this case is whether the applicant had a fair hearing - not whether a witness was treated fairly. There is no reason to doubt the applicant had a fair hearing.

10. Mr. Flick's candid and thorough presentation of the appeal enables it to be dealt with without delay. It should, however, be dismissed with costs.