Re Commissioner of Taxation v Richard Murray [1990] FCA 69; 90 Atc 4182 (15 March 1990)

FEDERAL COURT OF AUSTRALIA

Re: COMMISSIONER OF TAXATION
And: RICHARD MURRAY
No. ACT G11 of 1989
FED No. 83
Sales Tax
[1990] FCA 69; 90 ATC 4182

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Neaves(2) and Hill(3) JJ.

CATCHWORDS

Sales Tax - Exemptions - Item 68(2) in Division X of The First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 (Cth) - Articles described as bowls, platters and near-spherical shapes individually created on potter's wheel and fired after painting with glaze and pigment - Resultant effect of flowers with delicate stems and other colourful designs painted upon the article - Whether articles "works of art" - Test to be applied.

Administrative Appeals Tribunal Act 1975 (Cth), s.44

Sales Tax Act (No.1) 1930 (Cth), s.4(b)

Sales Tax Assessment Act (No.1) 1930 (Cth), s.25AA

Sales Tax (Exemptions and Classifications) Act 1935 (Cth), The First Schedule, Division X, item 68(2)

HEARING

CANBERRA
15:3:1990

Counsel and Solicitors: Mr D.H. Bloom QC and Df H.R. Sorensen
for applicant instructed by Australian Government Solicitor

Counsel and Solicitors : Mr A.H. Slater instructed by Messrs

for respondent Pamela Coward and Associates

ORDER

The applicant have leave to amend the notice of appeal herein by joining Sue Jacqueline Murray as a respondent, such amendment to be made before the further orders of the Court are taken out.

The appeal be dismissed with costs.

There be no order as to costs of the motion to contest the competency of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

In this matter I have had the advantage of reading the judgment to be delivered by Hill J. He has set out the facts of the matter and the provisions of the relevant legislation. I agree in his conclusion that the appeal should be dismissed with costs. I agree with what he has said in relation to the significance of the documents relied upon by the Commissioner under s. 15AB of the Acts Interpretation Act 1901. In particular I agree that, even if one were to take each of the documents into account, the accumulation of them would not be of assistance in elucidating the meaning of the phrase "work of art" where used in the expression which is in question.

2. So far as I am aware the only authority in which the words of the exemption have been considered by a court is Harrington v. Department of Taxation (1974) 74 ATC 4143, a decision of Bright J. of the Supreme Court of South Australia. His Honour concluded that the provision applied only to "pictures and the like" and "sculptures and the like"; p 4147. He set out some guidelines to assist those concerned with the application of the provision to a given situation in reaching a conclusion. His guidelines were four in number and his first was that only the two particular categories of pictures or paintings and sculptures fall within the item. His others were (p 4147):-
1. A work, in order to qualify, must be in some sense an original work - hand drawn, woven, painted, moulded or carved.
2. The work itself must be the object of the artist and his or her purpose must have been to produce a work of art. His Honour thought that the work in question must not be mere decorative art on some other object, such as a railway engine, a lamp, a dinner service or a writing desk.
3. The work must be original in the sense that it is not a mere copy of facsimile, however well executed.

3. It was natural that counsel, in the course of their submissions, should refer to cases decided in relation to problems which have arisen under the law relating to copyright. But one has to exercise a degree of care in taking too much from those cases, not only because they are copyright cases and thus concerned with a different area of the law, but also because one needs to have in mind the definition of "artistic work" in the applicable copyright statute with which the court in each of these cases was concerned. Notwithstanding these cautions, there is, I think, some assistance to be derived from a consideration of copyright cases particularly the decision of Pape J. of the Supreme Court of Victoria in Cuisenaire v. Reed (1963) VLR 719 and the decision of the House of Lords in Hensher v. Restawile Upholstery (Lancs.) Limited (1976) AC 64.

4. The Cuisenaire case was concerned with the meaning of "artistic work" in the Copyright Act 1911 (U.K.) which, until the coming into force of the Copyright Act 1968, applied in Australia by reason of the provisions of the Copyright Act 1912. "Artistic work" was defined in s. 35(1) of the United Kingdom Act to include works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art and engravings and photographs. The House of Lords in the Restawile case was concerned with the meaning of artistic work in s. 31 of the Copyright Act 1956 (U.K.). Paragraph (c) of the definition defined "artistic work" to mean "works of artistic craftsmanship" not falling within either para. (a) or (b) of the definition. These included paintings, sculptures, drawings, engravings and works of architecture.

5. In both the Cuisenaire case and the Restawile case the courts were concerned with the question whether the works were works of artistic craftsmanship. They were not concerned with whether the works were "works of art" - the expression in question here - nor were they concerned with whether they were paintings, drawings or engravings.

6. Nevertheless, as I have mentioned, I think the cases are of some assistance because the judges who decided them had to grapple with the meaning of the word "artistic" used as it was in conjunction with the word "craftsmanship". In the Restawile case the decision of Pape J. in the Cuisenaire case was referred to both by the Court of Appeal (1976) AC at pp 71-2 per Russell L.J. (as he then was) and by members of the House of Lords with obvious approval. Although the House of Lords approached the matter differently from the way it had been approached in the Court of Appeal, it reached the same conclusion.

7. The facts in Cuisenaire were that the plaintiff had developed a method of teaching primary school children mathematics with the aid of rods of varying lengths and colours. He published a book describing his system and caused to be manufactured and sold rods in sets of numbers packed in ten divisions. Each set contained 241 rods. Included in the book was a table or compilation which set out the respective colours and lengths of the rods as developed by the plaintiff. The defendants began to manufacture and market sets of rods which did not differ in any material way in length or colour from the plaintiff's rods. The plaintiff claimed to be the owner and author of the copyright of an artistic work, being a set of coloured rods for the teaching of arithmetic, and also that he was the owner and author of the literary copyright in the tables and compilations in the book. Pape J. found that literary copyright subsisted in the tables or compilations but that the rods, although a work of craftsmanship, were not a work of artistic craftsmanship. In relation to the question whether the rods were such a work, his Honour said (pp 730-31):-

"The true test, I think, is whether the
author, in making the article in which
copyright is alleged to subsist, was applying
his skill and taste to its production with
the main object of creating an article which,
even if it be utilitarian, nevertheless will
have a substantial appeal to the aesthetic
tastes of those who observe it. Put another
way, it may be said that the test is whether
the author was, in creating the article,
cultivating one of the fine arts with the
main object of appealing to the aesthetic
tastes of those who view it, provided that
the expression 'the fine arts' is given the
wide meaning of any application of skill and
taste to the production of articles which are
beautiful in themselves or which have an
appeal to aesthetic taste. The emphasis is
thus upon the object of the author in
creating the work, rather than on the
reaction of the viewer to the completed work,
for it is common place in copyright law that
it is immaterial whether the work has any
merit: Walter v. Lane (1900) AC 539, per
Lord Halsbury, L.C., at p 549. In stating
that the emphasis is on the object of the
author, I do not desire to be taken as saying
that the sole test of whether the work of a
craftsman is a work of artistic craftsmanship
is the intention or object of the craftsman
at the time he made the work. As a general
rule, the court adjudicating on the matter
will apply a purely objective test by an
examination of the article itself. When,
however, as in this case, such an objective
test may be thought to deny that the work is
one of artistic craftsmanship, and it is
sought to establish the contrary, the object
of the creator of that work must, in my view,
play a dominant part in the resolution of the
question. The best evidence concerning that
is the evidence of the creator of the work
himself, although, if he were dead, I am
inclined to think that evidence from
qualified viewers of the work that it had an
aesthetic appeal to them may be some evidence
from which a court could hold that the
creator of the work intended, when he made
it, that it should have such an appeal. But
evidence that a particular section of the
community on viewing the work found that it
appealed to their aesthetic emotions cannot
be a ground for ascribing copyright to that
work if it is clear that its author had no
such object in view when he created it."

8. A consideration of the judgment of Russell L.J. in the Court of Appeal and the speeches of the various members of the House of Lords in the Restawile case serves to show how difficult it is to give guidance on the question of what is a work of artistic craftsmanship and, I would add, a work of art, and how the approaches of a number of distinguished legal minds will differ upon the way the matter should be addressed. Thus Lord Reid said (p 78):-

"The word 'artistic' is not an easy word to
construe or apply not only because it may
have different shades of meaning but also
because different people have different views
about what is artistic. One may have a word
which substantially everyone understands in
much the same way. Recently we had to
consider such a word - 'insulting': Cozens v.
Brutus [1972] UKHL 6; (1973) A.C. 854. Then the matter can
and, indeed, must be left to the judge or
jury for further explanation will confuse
rather than clarify.
But here two questions must be determined.
What precisely is the meaning of 'artistic'
in this context and who is to judge of its
application to the article in question?
There is a trend of authority with which I
agree that a court ought not to be called on
to make an aesthetic judgment. Judges have
to be experts in the use of the English
language but they are not experts in art or
aesthetics. In such a matter my opinion is
of no more value than that of anyone else.
But I can and must say what in my view is the
meaning of the word 'artistic'.
I think we must avoid philosophic or
metaphysical argument about the nature of
beauty, not only because there does not seem
to be any consensus about this but also
because those who are ignorant of philosophy
are entitled to have opinions about what is
artistic. I think that by common usage it is
proper for a person to say that in his
opinion a thing has an artistic character if
he gets pleasure or satisfaction or it may be
uplift from contemplating it. No doubt it is
necessary to beware of those who get pleasure
from looking at something which has cost them
a great deal of money. But if
unsophisticated people get pleasure from
seeing something which they admire I do not
see why we must say that it is not artistic
because those who profess to be art experts
think differently. After all there are great
differences of opinion among those who can
properly be called experts.
It is I think of importance that the maker or
designer of a think should have intended that
it should have an artistic appeal but I would
not regard that as either necessary or
conclusive. If any substantial section of
the public genuinely admires and values a
thing for its appearance and gets pleasure or
satisfaction, whether emotional or
intellectual, from looking at it, I would
accept that it is artistic although many
others may think it meaningless or common or
vulgar."

9. The article in question in the Restawile case was a suite of furniture consisting of a settee and two chairs. Both the Court of Appeal and the House of Lords decided that it was not a work of artistic craftsmanship.

10. Lord Morris thought (p 81) that, in deciding whether a work was one of artistic craftsmanship, one needed to view and judge the work in a detached and objective way. He thought that the aim and purpose of its author might provide a pointer, but that the thing produced must itself be assessed without giving decisive weight to "the author's scheme of things". He said that the object under consideration must be judged "as a thing itself" and asked the question whether it had the character or virtue of being artistic.

11. Viscount Dilhorne said (pp 85-6):-

"An 'artistic work' is no more and no less
than a work of art. Every work of art is an
artistic work and vice versa. How does one
distinguish between what is a work of art and
what is not?"

His Lordship went on to refer to the judgment of Russell L.J. in the Court of Appeal and to the judgment of Noel J. in Cuisenaire v. South West Imports Ltd. (1968) 1 ExC R 493, a Canadian case. After some further discussion his Lordship decided (p 87) that the question was one of fact. He said that in many cases it would be easy to decide whether a work was or was not such a work but that there might be many borderline cases. His Lordship did not think that a clear line could be drawn between works which were, and those which were not, artistic.

12. The whole of the speech of Lord Simon of Glaisdale is, with respect, a stimulating and interesting analysis, but it is inappropriate to quote from it at length. Eventually his Lordship confessed (p 94) that it was easier to question the criteria put forward by others than to propound one's own. Having attempted the task myself later in this judgment, I can only express my respectful agreement with what his Lordship there said. His Lordship concluded that the artistic merit of a particular work was irrelevant and continued (pp 94-5):-

"Not only is artistic merit irrelevant as a
matter of statutory constuction, evaluation
of artistic merit is not a task for which
judges have any training or general aptitude.
Words are the tools and subject matter of
lawyers; but even in matters of literary
copyright the court will not concern itself
with literary merit: Walter v. Lane (1900)
AC 539. Since the tribunal will not
attempt a personal aesthetic judgment
(Stewart J. in Hay and Hay Construction Co.
Ltd. v. Sloan (1957) 16 Fox Pat.C. 185, 190)
it follows, again, that whether the subject
matter is or is not a work of artistic
craftsmanship is a matter of evidence; and
the most cogent evidence is likely to be from
those who are either themselves acknowledged
artist-craftsmen or concerned with the
training of artist-craftsmen - in other
words, expert evidence. In evaluating the
evidence, the court will endeavour not to be
tied to a particular metaphysics of art,
partly because courts are not naturally
fitted to weigh such matters, partly because
Parliament can hardly have intended that the
construction of its statutory phrase should
turn on some recondite theory of aesthetics -
though the court must, of course, in its task
of statutory interpretation, take cognisance
of the social-aesthetic situation which lies
behind the enactment, nor can counsel be
prevented from probing the reasons why a
witness considers the subject matter to be or
not to be a work of artistic craftsmanship.
It is probably enough that common experience
tells us that artists have vocationally an
aim and impact which differ from those of the
ordinary run of humankind. Given the
craftsmanship, it is the presence of such aim
and impact - what Stewart J. called 'the
intent of the creator and its result' - which
will determine that the work is one of
artistic craftsmanship."

13. Lastly there is the speech of Lord Kilbrandon. His Lordship said (p 97):-

"Whether a given object is a work of artistic
craftsmanship can be posed as a question of
fact, but only after the meaning of the word
'artistic' has been determined; what that
meaning is, is a question of law, since it
involves a decision of what Parliament meant
by the word Parliament used. I do not
believe that it is possible, as matter of law
or of exegesis, to arrive at a comprehensive
definitive interpretation of such a familiar
English word, so as to be armed with a test
which will enable one, by the application of
it, at a glance, to exclude all that does not
properly fall within the scope of the simple
word itself. It is, indeed, seldom that a
simple word can, by translation into some
easier or more difficult phrase, be rendered
the more capable of furnishing such a test.
But it is quite plain, in my opinion, that
you cannot get on without exercising, in any
case in which this kind of dispute arises,
the judicial function of holding whether the
facts bring the object within the meaning of
the statutory definition. You will get no
assistance, until you have exercised that
judicial function, by asking the opinion of
an expert; if he says 'I regard that object
as artistic,' the next question which must be
asked in order to make his last answer
intelligible is 'What do you mean by
artistic?' That question is incompetent,
because the answer would be irrelevant.
Since the word is a word of common speech, it
requires, and permits of, no interpretation
by experts. It is for the judge to determine
whether the object falls within the scope of
the common meaning of the word."

14. Counsel for the Commissioner impressed upon us the desirability of formulating a test which was practical and capable of being applied with a degree of certainty by both taxpayers and those concerned with the assessment process. I am conscious of the desirability of this, but if apparently clear words mask an underlying complexity, those concerned with the administration of a statute which contains them must do their best to grapple with the various problems with which they will be confronted. Thankfully the great mass of cases will be clear; a work will usually be either plainly, or plainly not, a work of art and there will not be the need for taxpayers or assessors to think too precisely about the question of what will constitute such a work. Articles will fall clearly on one side of the line or the other. In my opinion this is a case which falls into that category. Upon the findings of fact made by the Tribunal, it would seem to me to be difficult to reach any conclusion other than that the works in question here are works of art within the meaning of the applicable exemption. It does not seem to me to matter whether one approaches the problem in the way that it was approached by Bright J. in Harrington's case or in the way that it was approached by Pape J. in Cuisenaire or the judges in the Restawile case; whatever approach is applied, one will conclude that the works in question are works of art.

15. Nevertheless, I think I should attempt my own way of approaching the problem if only for the purpose of offering some guidance to those at the coalface. In this respect, I am assisted by the Tribunal in this matter. The Tribunal was comprised by Mr. R.K. Todd. In the course of his reasons he collected the propositions propounded by Pape J. in the Cuisenaire case. These have been quoted by Hill J., but for completeness, I quote them again. They are:-

"(i) The true test is whether the author -
(a) had the main object of creating
an article which, while
utilitarian, would have
aesthetic appeal, or
(b) was, in creating the article,
cultivating one of the fine arts
with the main object of
appealing to aesthetic tastes.
(ii) The expression 'the fine arts' is to
be given the wide meaning of any
application of skill and taste to the
production of articles which are
beautiful in themselves or which have
an appeal to aesthetic taste.
(iii) The emphasis is on the object of the
author in creating the work, rather
than on the reaction of the viewer.
(iv) But that is not the sole test. A
court will apply an objective test by
examination.
(v) If the article appears to fail that
objective test, the object of the
creator of the work will play a
dominant part in resolving the question."

16. I am in agreement with propositions (i), (ii) and (iii) but I have some reservation in relation to the way in which propositions (iv) and nv) are phrased. i think that the intention of the creator must be all important. I think this is established by the circumstance that, whether one is considering the matter in the context of copyright law or revenue law, the article will either be an artistic work or a work of art from the moment it comes into existence. It will not become a work of art at a later point of time if it is not a work of art from the moment it comes into existence. At that time many works of art will not have been seen by anyone except their creator. In any event, one would not attribute to an article the quality of a work of art if its creator did not intend that it should have that quality. Nevertheless I do not think that objective considerations are without substantial importance and significance. It is by making a judgment of the thing itself, of what it purports to be, that one usually determines whether it is a work of art or not. This is a matter, notwithstanding the wide range of objects which are displayed in the art galleries of the world, which occasionally vexes the minds of distinguished connoisseurs of art. But it is the way in which one is struck by a particular object which will very often determine whether or not an object is properly regarded as a work of art. In borderline cases it may be appropriate to inquire of the creator what his or her intention was. In those cases one's own objective reaction to the article itself may provide a check against accepting, for example, the gimmick referred to (pp 92, 94) by Lord Simon in his speech in the Restawile case as a work of art. More than this I do not think one can say because the more one says the more one substitutes other and different words for what is a plain English expression. If this happens, one is likely to be led away from giving to that expression its true meaning.

17. I wish to say two further things. Firstly, because of the way in which some submissions made on behalf of the Commissioner were put, I wish to make abundantly clear that one does not reach a conclusion by judging the artistic merit of the work. All the authorities are to that effect and it would be quite wrong to include artistic merit as a criterion in the exercise. In the celebrated case of Attorney-General v. Trustees of the National Art Gallery of N.S.W. (1944) 62 WN (NSW) 212, which involved the question whether a painting of Joshua Smith by the artist William Dobell was a portrait within the meaning of a trust established under a will, Roper J. (as he then was) said (p 215):-

"Whether as a work of art or a portrait it is
good or bad, and whether limits of good taste
imposed by the relationship of artist and
sitter have been exceeded, are questions
which I am not called upon to decide and as
the expression of my opinions upon them could
serve no useful purpose I refrain from
expressing them. I mention those matters,
however, because I think that the witnesses
for the informant, whose competency to
express opinions in the realm of art is very
great, were led into expressing their
opinions that the work was not a portrait
because they held strong views against it
upon those questions. They excluded the work
from portraiture, in my opinion, because they
have come to regard as essential to a
portrait characteristics which, on a proper
analysis of their opinions, are really only
essential to what they consider to be good
portraiture."

18. In a comment on the case, "An Artist in the Courts of Law", published in (1962) 19 A.L.J. 112, Sir Zelman Cowen (then Dean of the Faculty of Law at the University of Melbourne) referred to the libel action brought by Whistler against Ruskin in 1878. Ruskin had written of a painting by Whistler, "Nocturne in Black and Gold", (p 112):-

"For Mr. Whistler's own sake, no less than
for the protection of the purchaser, Sir
Coutts Lindsay ought not to have admitted
works into the gallery in which the
ill-educated conceit of the artist so nearly
approached the aspect of wilful imposture. I
have seen and heard much of cockney impudence
before now, but never expected to hear a
coxcomb ask two hundred guineas for flinging
a pot of paint in the public's face."

19. Whistler recovered nominal damages of one farthing. Sir Zelman Cowen concluded his comment by saying (p 113):-

"It is often said, with much truth, that a
prophet is not without honour save in his own
country. This has very often been the fate
of artists. Whistler, though subjected to
ridicule and attack in his own day, has now
achieved well merited recognition. The scorn
poured upon the impressionists has now turned
to praise. These facts should serve as a warning
to those who laugh to scorn contemporary art."

20. The second matter I mention is that, although I have found a degree of assistance from the judgment of Bright J. in the Harrington case, I think, with respect, that his approach is too narrow when he says that works of art are restricted to the two broad categories of painting and sculpture. The judgment of Lord Simon in the Restawile case, notwithstanding that his Lordship was concerned with whether the suite of furniture was a work of artistic craftsmanship, shows that the days when the fine arts were confined to painting and sculpture have long since passed. Bright J. appears to have reached his conclusion because of his reliance upon (p 4147) certain items in the Customs Tariff. These referred to paintings, drawings, pastels, original engravings, prints and lithographs, and original sculptures and statuary. It is not apparent to me why these items should be thought to work the limitation upon the meaning of the expression "work of art" which Bright J. thought they did. The items in question in this case include crockery, jardinieres and vases. Unless the expression "work of art" is construed to include articles in addition to paintings and sculptures, it would not assist a potter or a person doing work of the kind done by the respondent in this case. No doubt persons in other fields of artistic endeavour would be similarly affected. In my respectful opinion, there is no warrant for giving the words this narrow construction.

21. In the result I would make the orders proposed by Hill J.

I agree in the conclusion reached by the other members of the Court that the application should be dismissed.

2. The issue before the Administrative Appeals Tribunal was whether certain articles, described as bowls, platters and near-spherical shapes, which had been individually created on a potter's wheel and fired after being painted with glaze and pigment by a technique which was said to be not unlike that adopted by an artist using watercolours, were "works of art produced in Australia" and, therefore, within the exemption from sales tax prescribed by item 68(2) in Division X of The First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 (Cth). That issue was decided adversely to the Commissioner of Taxation.

3. I have not found it possible to formulate a comprehensive definitive interpretation of the expression "work of art". I respectfully adopt, as being entirely apposite to the expression with which the present case is concerned, the comment in relation to the meaning of the word "artistic" which Lord Kilbrandon made in Hensher v. Restawile Upholstery (Lancs.) Limited 1976 AC 64 at p 97. His Lordship said:

"I do not believe that it is possible, as a
matter of law or of exegesis, to arrive at a
comprehensive definitive interpretation of such
a familiar English word, so as to be armed with
a test which will enable one, by the application
of it, at a glance, to exclude all that does not
properly fall within the scope of the simple
word itself. It is, indeed, seldom that a
simple word can, by translation into some easier
or more difficult phrase, be rendered the more
capable of furnishing such a test. But it is
quite plain, in my opinion, that you cannot get
on without exercising, in any case in which this
kind of dispute arises, the judicial function of
holding whether the facts bring the object
within the meaning of the statutory definition."

4. In my opinion, one can do no more to facilitate the task of those who must decide whether a particular article is properly to be classified for sales tax purposes as a work of art than to identify factors which are relevant to be taken into account in resolving the issue. The judgments of the other members of the Court identify a number of such factors and I need not repeat them. I agree that a decision-maker should have regard to the factors there identified. It seems to me, however, that the emphasis or weight to be given to any one of the relevant factors in relation to a particular article for which exemption is claimed will depend upon the circumstances of the particular case. I do not think that further guidance can be given to those charged with the administration of the law.

5. On the findings of fact made by the Administrative Appeals Tribunal, the conclusion reached by it was, in my opinion, clearly open to it. I agree with the orders proposed by Hill J.

DECISION

The Commissioner of Taxation appeals against a decision of the Administrative Appeals Tribunal, constituted by Deputy President R K Todd, allowing an objection by the respondent Mr Richard Murray against an assessment made under the provisions of s.25AA of the Sales Tax Assessment Act (No 1) 1930 ("the No 1 Act") at the request of the respondent.

2. The appeal was heard by a Full Court of this Court constituted pursuant to s.44(3) of the Administrative Appeals Tribunal Act 1975, it having been said that the appeal involved a question of principle of some importance arising out of the construction of Item 68(2) of Division X of the Sales Tax (Exemptions and Classifications) Act 1935, First Schedule.

3. The facts are not in dispute. The respondent, after studying painting, drawing and sculpture became an art teacher and taught for 10 years. Thereafter he became a full-time potter. Some of his work included casserole dishes, lidded pots, goblets, pate dishes, coffee mugs and sets of almost identical bowls which were often produced in great numbers of virtually the same design. Notwithstanding that these items were produced individually by hand it could be said that they were mass produced. They were produced for their functional purpose and sold as such. It was not suggested that these items were exempt from sales tax and the respondent, who was registered under the provisions of the No 1 Act, paid sales tax upon them at the rate determined by Item 1(b) or (ba) of the Third Schedule to the Sales Tax (Exemptions and Classifications) Act 1935.

4. Those items which presently attract tax at the rate of 10 percent (see s.4(b) of the Sales Tax Act (No 1) 1930) read as follows:

"Goods. . . of a kind ordinarily used for household
purposes, namely: -
. . .
(b) crockery and articles of a material other than
earthenware used for purposes similar to the
purposes for which crockery is used;
(ba) jardinieres and vases"

5. In addition to these articles the respondent produced other articles, bowls, platters and near spherical pots which were the subject of the assessment. The actual items the subject of the assessment were not tendered in the Tribunal, having apparently been sold, but there were tendered photographs of items which it was conceded were "representative" of the actual items that were the subject of the assessment. Each of these items was said to have an individual form, having been created on a potter's wheel and was painted with glaze and pigment in a technique not unlike that adopted by an artist using water-colours. There was, for example, what was said to be a medium sized platter which had been brushed, air brushed and double dipped. The resultant effect, after firing, was of flowers with delicate stems painted upon the platter, although the medium used was glaze and oxide rather than paint.

6. In addition to platters of various sizes, there were spherical vases which had been adorned with colourful designs, the themes having been taken from nature and said to have been influenced by the environment around the area where the respondent works and its natural vegetation. According to an assessment of the respondent's work prepared by an art student and accepted by the Tribunal:

"the emphasis on the decorative element has become
a major part of his work, with the princip(al)
character of the surrounding landscape dictating
the overall themes."

7. The respondent's work has been shown in many exhibitions in the Australian Capital Territory, Beechworth, Victoria, Berrima and Sydney and he has given one man shows in the Potter's Society Gallery, Darlinghurst and Berrima Galleries.

8. The respondent claimed in respect of these items that they qualified for exemption under Item 68(2) of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 which item reads:

"Works of art produced in Australia or produced
abroad by Australian artists."

9. A claim to the exemption was first made in October 1985 and was rejected in March 1986. Tax was thereafter paid under protest. In respect of the period from September 1985 to October 1986 additional tax under s.45 of the No 1 Act was to be paid in addition to the sales tax said to have been underpaid. In due addition to the sales tax said to have been underpaid. In due course the Commissioner suggested that the respondent might seek a special assessment under s.25AA, object against it and have the matter of the exemption determinde. That assessment, for $159.88 was made in April 1987 and was duly objected to. When that objection was disallowed the respondent referred the objection decision to the Tribunal. In his statement, required to be lodged with the Tribunal in accordance with s.37 of the Administrative Appeals Tribunal Act 1975 (as modified by s.14ZG of the Taxation Administration Act 1953), the Commissioner indicated that the applicant's liability to sales tax arose when he treated goods produced by him as stock for sale by retail. Reference was also made to sales made by the respondent in the relevant period. It was alleged that the goods produced were not "works of art" for the purposes of Item 68(2).

10. The Tribunal, after a consideration of some of the cases which have discussed the meaning of the words "works of art" or related expressions, abstracted a number of propositions derived from the judgment of Pape J in Cuisenaire v. Reed (1963) VR 719 which it formulated as follows:

"(i) The true test is whether the author -
(a) had the main object of creating an
article which, while utilitarian, would
have aesthetic appeal, or
(b) was, in creating the article,
cultivating one of the fine arts with
the main object of appealing to
aesthetic tastes.
(ii) The expression 'the fine arts' is to be given
the wide meaning of any application of skill
and taste to the production of articles which
are beautiful in themselves or which have an
appeal to aesthetic taste.
(iii) The emphasis is on the object of the author
in creating the work, rather than on the
reaction of the viewer.
(iv) But that is not the sole test. A court will
apply an objective test by examination.
(v) If the article appears to fail that objective
test, the object of the creator of the work
will play a dominant part in resolving the question."

11. In the view of the Tribunal an article was a work of art if it passed either of the tests in paragraph (i) above and in a case falling within paragraph (i)(b) if it fell to be considered as fine art within the test in paragraph (ii). The Tribunal concluded that the articles in dispute passed all of the tests enunciated by Pape J. It said:

"In my opinion the articles in dispute produced by
the applicant pass all of Pape J's tests. They
clearly pass the tests related to the object and
purpose of the creator. As far as the objective
appreciation by the Tribunal on examination is
concerned, a test which does not, as I read Pape
J's judgment, involve making a judgment as to
artistic merit but rather a judgment that in broad
terms the work is one likely to have substantial
appeal to aesthetic tastes, it seems to me that the
decorated ceramic works that are in question here
quite easily pass the test."

12. Accordingly the Tribunal concluded that the items in question were exempt under Item 68(2). From this decision the applicant appealed to this Court.

13. By virtue of the provisions of s.44(1) of the Administrative Appeals Tribunal Act 1975 an appeal to this Court from the Tribunal is an appeal on and limited to a question of law (see Brown v. Repatriation Commission (1985) 60 ALR 289 at 291 and Federal Commissioner of Taxation v. Brixius (1987) 87 ATC 4963; 16 FCR 359). The respondent initially challenged the competency of the Court to hear the appeal on the grounds that the question of whether the items in question were works of art was a question of fact. However, at the hearing of the appeal it became clear that the Commissioner sought to challenge the Tribunals' decision on the basis that the Tribunal had applied the wrong test to determine what was a work of art. The question of the proper test to be applied to determine whether a particular item is a work of art is a question of law; cf Statham v. Federal Commissioner of Taxation (1989) 89 ATC 4070, 4074. By contrast, if the only question to be answered was whether the items fell within the ordinary meaning of the relevant words, the question could have been one of fact only: Hope v. The Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1 per Mason J at 7.

14. Counsel for the Commissioner submitted that the test whether an article was a work of art was purely an objective test, to be determined by reference to considerations such as who the artist was and his reputation. In a case such as the present, where the articles were capable of having a utilitarian function, whether as platters or as vases, aesthetic appeal was to be weighed objectively against the utilitarian function of the item. Where the article was both aesthetic and utilitarian, for the article to fall within the expression "works of art", it must be substantially aesthetic: "the aesthetic qualities or character must subsume the utilitarian".

15. For the respondent, on the other hand, it was submitted that the test was not purely objective. Rather it was submitted one looks to the object of the creator of the work and the circumstances which led to the item being produced. The same item could be a work of art or not, dependent upon the purpose of the person who produced it. If the item was produced for the purpose of communicating an artistic statement, it would be a work of art, but if produced without such a purpose (e.g. with the purpose of producing a utilitarian object) it would not be a work of art.

16. Item 68(2) was introduced by the Financial Relief Act 1933. The obvious purpose of introducing such an exemption was the encouragement of Australian art. Counsel for the Commissioner sought to tender to us, presumably under s.15AB of the Acts Interpretation Act 1901, material said to have come from the files of the Commissioner and said to relate to the bill which ultimately became the Financial Relief Act 1933. These materials included documents which purported to be:
* Notes on a deputation which awaited upon the Minister for Trade and Customs.
* Correspondence passing between the Minister for Trade and Customs and the Treasurer.
* A letter, partly obliterated, said to be from an artist to the Minister for Trade and Customs.
* An internal minute addressed to the Commissioner signed by an unknown person.
* A document purporting to be a copy of a summary of decisions reached by a governmental committee on sales tax for submission to Cabinet for consideration.
* A copy of a document without a heading but upon which is written the words "copy of notes which went over to parliament with the FR Bill".

17. Interesting although these materials are, they are of no assistance to us in arriving at a resolution of the competing submissions.

18. Section 15AB(1) and (2) provide as follows.

"(1) Subject to sub-section (3), in the
interpretation of a provision of an Act, if any
material not forming part of the Act is capable of
assisting in the ascertainment of the meaning of
the provision, consideration may be given to that
material -
(a) to confirm that the meaning of the provision
is the ordinary meaning conveyed by the text
of the provision taking into account its
context in the Act and the purpose or object
underlying the Act; or
(b) to determine the meaning of the provision
when -
(i) the provision is ambiguous or obscure;
or
(ii) the ordinary meaning conveyed by the text
of the provision taking into account its
context in the Act and the purpose or
object underlying the Act leads to a
result that is manifestly absurd or is
unreasonable."
(2) Without limiting the generality of sub-section
(1), the material that may be considered in
accordance with that sub-section in the
interpretation of a provision of an Act includes -
(a) all matters not forming part of the Act that
are set out in the document containing the
text of the Act as printed by the Government
Printer;
(b) any relevant report of a Royal Commission, Law
Reform Commission, committee of inquiry or
other similar body that was laid before either
House of the Parliament before the time when
the provision was enacted;
(c) any relevant report of a committee of the
Parliament or of either House of the
Parliament that was made to the Parliament or
that House of the Parliament before the time
when the provision was enacted;
(d) any treaty or other international agreement
that is referred to in the Act;
(e) any explanatory memorandum relating to the
Bill containing the provision, or any other
relevant document, that was laid before, or
furnished to the members of, either House of
the Parliament by a Minister before the time
when the provision was enacted;
(f) the speech made to a House of the Parliament
by a Minister on the occasion of the moving by
that Minister of a motion that the Bill
containing the provision be read a second time
in that House;
(g) any document (whether or not a document to
which a preceding paragraph applies) that is
declared by the Act to be a relevant document
for the purposes of this section; and
(h) any relevant material in the Journals of the
Senate, in the Votes and Proceedings of the
House of Representatives or in any official
record of debates in the Parliament or either
House of the Parliament."

19. It is obvious that the classes of extrinsic material enumerated under s.15AB(2), to which regard may be had, do not comprehend the classes of material sought to be made available to us in the present case. However, it is also clear that what is enumerated in subs.(2) does not limit the classes of material to which regard may be had under subs.(1). The limiting factor in determining the material to which regard may be had under subs.(1) is that it be "capable of assisting in the ascertainment of the meaning of the provision". The use to which material of that kind may be put is limited to the two purposes specified in paragraphs (a) and (b).

20. The object of statutory construction is to ascertain the legislative intention by reference to the language of the statute: Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation [1981] HCA 26; (1980-1) 147 CLR 297 at 320 (per Mason and Wilson JJ). As the then Chief Justice said in the same case at 304:

"It is an elementary and fundamental principle that
the object of the court, in interpreting a statute,
'is to see what is the intention expressed by the
words used': River Wear Commissioners v. Adamson
(1877) 2 App Cas 743 at p 763."

21. The ascertainment of the legislative intention, which will be derived by reference to the words used considered in their context, and by construing the statute as a whole, may be aided by extrinsic material as s.15AB makes evident. But the intention of the Commissioner in submitting a matter for consideration of a governmental committee and the deliberations of that committee will, even if proved to come from the suggested source, tell little at all of the parliamentary intention. At best such material may suggest the mischief which some person had in mind when framing a bill before it is put before Parliament. But if the Parliament is not appraised of that mischief by the proponent of the bill in a second reading speech, by an explanatory memorandum or in debate, it will be hard to be sure that the mischief was in truth that which Parliament sought to overcome. A surer guide in such a case will be the words of the statute themselves. Particulary will that be the case where the words to be construed are ordinary English words not attended with ambiguity.

22. Even if recourse be had to that material in the present case, it adds nothing to what could have been determined from the language of the exemption itself, namely that the purpose of the amendment was to give a concession to works of art produced in Australia. It assists not at all in approaching the real issue in the present case, namely the meaning of the expression "work of art".

23. For the respondent it was submitted that the phrase "work of art" was a compound phrase involving two elements, each of which had to be satisfied before the exemption was attracted. First, it was said there must be a "work", that is to say there had to be an element of personal participation by the manufacturer. It followed, so it was said, that mass produced objects would not fall within the exemption. Hence it was said that a Ferrari motor car would not fall within the exemption because it was not relevantly "a work".

24. While it may be conceded that a Ferrari motor car would not fall within the exemption, nor somewhat more relevantly would a mass produced dinner service, no matter how beautiful, this is not because such items are not "works" but rather because in accordance with the ordinary English meaning of the word they are not within the composite expression "work of art".

25. The respondent placed reliance upon the decision of Pape J in Cuisenaire v. Reed (1963) VR 719 where the ultimate issue was whether cuisenaire rods of various colours used in the teaching of mathematics were works of artistic craftsmanship and hence the subject of copyright protection. In the Copyright Act 1911 (UK), relevant to the case, the expression "artistic work" was used but only as a generic term or label to cover the wide categories of subject matter in which copyright subsists in accordance with the statutory definition of the expression in s.1(1) of that Act.

26. Reference by Pape J to the definition of "artist" in the Oxford English Dictionary showed that an artist was one who cultivates "one of the fine arts in which the object is mainly to gratify the aesthetic emotions by perfection of execution whether in creation or representation." Reference to the definition of "fine arts" in the Shorter Oxford Dictionary shows that that expression refers to "The arts which are concerned with 'the beautiful' or which appeal to the taste, often restricted to the arts of design, as painting, sculpture and architecture." His Honour then continued (at 730):

"In my opinion, the words 'artistic' and
'craftsmanship' each refer to some quality in the
acts performed by the maker or author of the
article in which copyright is alleged to subsist in
the course of performing the physical operation of
making that article as distinct from the earlier
cogitation and thought which produced the idea upon
which the work was based. The true test, I think,
is whether the author in making the article in
which copyright is alleged to subsist, was applying
his skill and taste to its production with the main
object of creating an article which, even if it be
utilitarian, nevertheless will have a substantial
appeal to the aesthetic tastes of those who observe
it. Put another way, it may be said that the test
is whether the author was, in creating the article,
cultivating one of the fine arts with the main
object of appealing to the aesthetic tastes of
those who view it, provided that the expression
'the fine arts' is given the wide meaning of any
application of skill and taste to the production of
articles which are beautiful in themselves or which
have an appeal to aesthetic taste. The emphasis is
thus upon the object of the author in creating the
work, rather than on the reaction of the viewer to
the completed work, for it is common place in
copyright law that it is immaterial whether the
work has any merit: Walter v. Lane 1900 AC 539,
per Lord Halsbury, LC, at p 549. In stating that
the emphasis is on the object of the author, I do
not desire to be taken as saying that the sole test
of whether the work of a craftsman is a work of
artistic craftsmanship is the intention or object
of the craftsman at the time he made the work. As
a general rule, the court adjudicating on the
matter will apply a purely objective test by an
examination of the article itself. When, however,
as in this case, such an objective test may be
thought to deny that the work is one of artistic
craftsmanship, and it is sought to establish the
contrary, the object of the creator of that work
must, in my view, play a dominant part in the
resolution of the question. The best evidence
concerning that is the evidence of the creator of
the work himself, although, if he were dead, I am
inclined to think that evidence from qualified
viewers of the work that it had an aesthetic appeal
to them may be some evidence from which a court
could hold that the creator of the work intended,
when he made it, that it should have such an
appeal. But evidence that a particular section of
the community on viewing the work found that it
appealed to their aesthetic emotions cannot be a
ground for ascribing copyright to that work if it
is clear that its author had no such object in view
when he created it."

27. A similar view of what constituted "artistic craftsmanship" was taken by Lord Simon in George Hensher Ltd v. Restawile Upholstery (Lancs) Ltd 1976 AC 64 at 95 where his Lordship said:

"It is probably enough that common experience tells
us that artists have vocationally an aim and impact
which differs from those of the ordinary run of
humankind. Given the craftsmanship, it is the
presence of such aim and impact - what Stewart J
called 'the intent of the creator and its result' -
which will determine that the work is one of
artistic craftsmanship."
In the same case Lord Kilbrandon at 96 said:
"In my opinion, the first essential of a work of
art (which I think an artistic work must be) if it
is to be distinguished from a work of craftsmanship
- a distinction upon which Parliament insists - is
that it shall have come into existence as the
product of an author who is consciously concerned
to produce a work of art. The work either is or is
not a work of art before anyone except the author
has seen it; it does not depend for its artistic
character upon the criticism, whether favourable or
unfavourable, of other people who may make value
judgments about it. It must be possible to deduce
the conscious purpose of artistic creation from the
work itself or from the circumstances of its
creation, but this act arises only when the
question whether it is a work of art becomes one
for discussion or decision by others than the
author. Merit is another matter altogether."

28. However, there was far from agreement among their Lordships as to the proper test to apply. Lord Reid while eschewing a philosophical argument as to the nature of beauty said at 78:

"I think that by common usage it is proper for a
person to say that in his opinion a thing has an
artistic character if he gets pleasure or
satisfaction or it may be uplift from contemplating
it. . . .
It is I think of importance that the maker or
designer of a thing should have intended that it
should have an artistic appeal but I would not
regard that as either necessary or conclusive. If
any substantial section of the public genuinely
admires and values a thing for its appearance and
gets pleasure or satisfaction, whether emotional or
intellectual, from looking at it, I would accept
that it is artistic although many others may think
it meaningless or common or vulgar."

29. Lord Morris at 81 expressed a similar view when his Lordship said:

"In deciding whether a work is one of artistic
craftsmanship I consider that the work must be
viewed and judged in a detached and objective way.
The aim and purpose of its author may provide a
pointer but the thing produced must itself be
assessed without giving decisive weight to the
author's scheme of things. Artistry may owe
something to an inspiration not possessed by the
most deft craftsman. But an effort to produce what
is artistic may, if forced or conscious, for that
very reason fail. Nor should undue emphasis be
given to the priorities in the mind of a possible
acquirer. A positive need to purchase an object or
thing in order to put it to practical use may be
the primary reason for its acquisition but this may
be reinforced by a full appreciation of its
artistic merits if they are possessed.
So I would say that the object under consideration
must be judged as a thing itself. Does it have the
character or virtue of being artistic? In deciding
as to this some persons may take something from
their ideas as to what constitutes beauty or as to
what satisfies their notions of taste or as to what
yields pleasure or as to what makes an aesthetic
appeal. If, however, there is a resort to these or
other words which may themselves have their own
satellites of meanings there must follow a return
to the word 'artistic' which is apt without
exposition to contain and convey its own meaning."

30. Viscount Dilhorne refused to lay down a test regarding the words as ordinary English words and the question whether a particular work fell within them as a question of fact.

31. Counsel for the respondent criticised reliance upon copyright decisions having regard to the quite different context in which the issue arose for decision. Accordingly, it is desirable to consider the context of the sales tax legislation and the place the exemption has in that context.

32. Generally speaking the sales tax legislation is a tax on sales of goods imposed at the wholesale level. In an endeavour to trace the path of goods from the time they come into existence in Australia, whether by manufacture or by import until they go into use and consumption in Australia, the legislation levies a tax at the point of the last wholesale sale. However, because not all goods will be the subject of a wholesale sale, the legislation provides for tax to be levied in circumstances other than a wholesale sale, although it endeavours to fix as a sale value upon which the tax is charged, a figure which approximates the wholesale price. Thus in the case of goods manufactured in Australia the legislature imposes tax under the No 1 Assessment Act, when read together with the corresponding rating Act, upon sales by a manufacturer by retail (s.18(1)(b)) or upon the application by a manufacturer of the goods to his own use (s.18(3)). Tax is also imposed upon the manufacturer treating the goods as stock for sale by retail (s.18(2)), thereby accelerating the taxing point.

33. Subsequent Acts (Acts 2 to 4) provide for the liability to sales tax of wholesale merchants who have either purchased the goods directly from the manufacturer or who have purchased them from some person further down the chain of sales. In each of these acts the liability may fall upon the wholesaler, depending upon whether there has been a final wholesale sale, or a retail sale or whether the goods have been applied by the wholesale merchant to his own use.

34. An importer may become liable to the tax if he purchases the goods for his own use or for the purposes of a retail sale. Otherwise the liability for sales tax of wholesale merchants follows the same pattern in Acts 6 to 8 in respect of imported goods as does the liability of wholesale merchants in respect of goods manufactured in Australia. Acts 9 to 11 deal with special situations not relevant to the present context. A further exposition of the legislative scheme is to be found in the pivotal judgment of Dixon J in Deputy Federal Commissioner of Taxation (S.A.) v. Ellis and Clark Ltd [1934] HCA 54; (1934) 52 CLR 85 which, while delivered in respect of the original legislation, remains equally relevant to the general thrust of the tax today, of Brayson Motors Pty Ltd (in liquidation) v. Federal Commissioner of Taxation [1985] HCA 20; (1984-5) 156 CLR 651.

35. In this context it is hardly surprising that the application of a particular item of exemption, or the determination of which rate of sales tax will apply to a particular item, may to some extent at least depend upon the manner in which goods are put up for sale and the purpose for which goods are sold. That is not to say that either will be determinative and regard must be had to the wording of particular items, some of which will look to some intrinsic character of the goods themselves (e.g. Deputy Federal Commissioner of Taxation v. Lincoln Industrial Cleaners Pty Ltd (1975) 75 ATC 4208 ("Preparations and materials for use in the destruction of insect pests")) and some of which will look to the use for which it is intended the item will be put (e.g. Deputy Commissioner of Taxation v. Stewart [1984] HCA 11; (1983-4) 154 CLR 385 ("Goods for use . . . by - (a) a public hospital")). In some cases, e.g. Item 38A in the First Schedule to the Act, ("Preparations that are put up and sold for use as substances to be applied to the skin for the purpose of screening out solar ultra-violet rays . . .") the get up and manner of sale is explicitly stated to be relevant; see also e.g. Items 23, 26A, 35A, 35B, 38(i) and (v). In other cases this may arise by implication (e.g Item 10 "materials for the handling or treatment of fruit").

36. Sales tax is a self assessing tax. The obligation to pay the tax arises without assessment by the Commissioner and it may accordingly be sued for without assessment: s.24(1) and s.30 of the No 1 Act. It was for this reason that the legislature, by Act No 48 of 1986, s.135, conferred upon a taxpayer a right to obtain a special assessment under s.25AA so that a taxpayer could have a right of objection and appeal under the statutory procedures introduced at the same time.

37. The idea that the question whether a particular item is a work of art is one primarily to be determined by an assessor of the taxation office fits ill with such a legislative scheme. The taxpayer must be able to determine his own liability. Considerable penalties are imposed if a taxpayer fails to lodge returns of all taxable transactions and to pay the tax appropriate to those transactions: e.g. s.29 and s.45 of the No 1 Act, the latter section providing a penalty of double the amount of tax for, inter alia, failing to furnish a return.

38. The proper test to determine whether an item is a work of art is both objective and subjective. The item in question must be one which is capable of being a work of art in itself. It will not, merely because it is also utilitarian, for that reason fail to fall within Item 68(2), nor did the Commissioner so submit. In considering the matter objectively it will be relevant to have regard to the person who produced it (was he or did he purport to be an artist?), and the circumstances in which the work was produced (was it a case of mass production, or did the work have originality?). Production of a number of items in a series such as a set of original lithographs in a series would not necessarily be excluded from Item 68(2). Relevant will be whether it is got up and sold as an item of artistic endeavour or whether it is got up and sold for a utilitarian function. Pottery made up for sale as vases per se would not, without more, qualify. In this respect price or value might play a part, although again these matters will not be determinative. The item must also be such as is capable of being seen as produced to gratify the aesthetic emotions.

39. To define "art", "artistic" or "aesthetic" (which may be little more than a synonym for artistic in modern usage) and to state the essential quality which distinguishes art from other human activity is a task more appropriate to the philosopher than the jurist.

40. William A. Haviland of the University of Vermont, in his work Cultural Anthropology (Holt Rinehart and Winston 1975) said at 335:

"Art is the product of a specialized kind of human
behaviour: the creative use of our imagination to
help us interpret, understand, and enjoy life.
Whether one is talking about a Chinese love song, a
Navajo pot, a Balinese dance, or a Persian
bracelet, it is clear that everyone involved in the
activity we call art - the creator, the performer,
the participant, the spectator - is making use of a
uniquely human ability to use and comprehend
symbols and to shape and interpret the physical
world for something other than a practical or
useful purpose."

This illustrates the difficulty of establishing any criteria by which a work of art may be recognised.

41. The Encyclopaedia Britannica (1958 Ed) suggests that Tolstoy came near at least to the truth "in insisting upon emotional impulse as indispensable to all artistic expression, but went sadly astray in the elaboration of his theory". That encyclopaedia however avoids a universal definition, perhaps because at the end of the day such a definition is impossible. So too, there can be no absolute criterion which can determine readily whether an object is a work of art within the exemption. With respect, I agree with the statement to this effect of Bright J in Harrington v. Deputy Federal Commissioner of Taxation (1974) 74 ATC 4143, a case dealing with Item 68(2) which held that heraldic plaques and parchments were not works of art.

42. In most cases the application of an objective test will suffice to determine whether a particular work is a work of art. The present is such a case and indeed in applying an objective test the Tribunal found that the items the subject of the assessment were works of art. That question is one of fact for the Tribunal and there was no attack upon it. It clearly was open to the Tribunal to so find.

43. In some cases however the application of the objective test may leave a Tribunal in doubt. In part this could come about because the assessment of whether an item is capable of being a work of art might involve the fact finder, no doubt unconsciously, applying his own aesthetic values. Aesthetic judgments are not matters for a court (or indeed for a revenue collector) cf. George Hensher Ltd v. Restawile Upholstery (Lancs) Ltd (supra). Such doubts may be resolved by an application of the subjective test referred to by Pape J in Cuisenaire v. Reed (supra). But the significance of the subjective test goes beyond the resolution of doubt. An item created without the intention of making an artistic statement would not be a work of art no matter how artistic it might appear to be. The history of art hoaxes is replete with examples of items admired as works of art but which turned out to be other than what they were said to be. For a work to be a work of art therefore it will be necessary that the "artist" bringing it into existence intends thereby to make with it an artistic statement.

44. Where, as in the present case, an object is both utilitarian and artistically pleasing, reference to the purpose of the maker in bringing it into existence will, if the objective test still leaves room for doubt, assist in the resolution of that doubt. The subjective test, however, could not be the sole criterion. A school child might draw figures in the belief that he was creating a work of art whereas the application of the objective test would ordinarily lead to a conclusion that what was produced was the mere scribble of a child and not a work of art.

45. This view of the significance of purpose accords with what was said by Bright J in Harrington at 4147 in his third guideline. Not all of the guidelines propounded by his Honour may be accepted. The first guideline propounded was that only the two broad categories of "(a) pictures and the like and (b) sculptures and the like" fall within the item. The expression "work of art" is applied to articles of an artistic nature outside these two categories and art galleries are replete with pottery for example, which clearly falls within the expression.

46. The second guideline of original work, that is to say - "hand-drawn, hand-woven, hand-painted, hand-moulded, hand-carved" may generally be accepted, although whether it is necessary that the artist himself perform the work is a question that need not now be decided. The fourth guideline of originality in the sense of not being a "mere copy or facsimile" may also require qualification. Many artists have produced copies of other paintings which nevertheless in their own right would be considered works of art. Perhaps that is what his Honour meant by using the words "mere copy".

47. Counsel for the Commissioner referred us to two American decisions, United States v. Perry [1892] USSC 204; (1892) 146 US 71 and Silberman v. United States (1960) 184 F Supp 260. In the former it was held that painted or "stained" glass for use as windows in a Convent were not "paintings", an unremarkable result. In the course of the decision of the United States Supreme Court, delivered by Brown J, the Court divided works of art into four classes depending upon intention. Those intended solely for ornament included one class but objects primarily designed for a useful purpose were excluded from the benefit of a lower tariff. Far from supporting the Commissioner this case supports the application of a subjective test.

48. Silberman's case concerned the meaning of a customs tariff item, "work of art", and its application to what is described as a Picasso mosaic. It was held to be a work of art as it appealed to the emotions through the eye alone. I find little of assistance to the Commissioner in that case.

49. In the present case the Tribunal found as a fact that the articles in question were brought into existence for the purpose of making a visual statement, i.e. to make art, by creating an article which has aesthetic appeal. Hence the articles in question satisfied both the objective and subjective tests and fell within Item 68(2). The Tribunal's decision involved no error of law. The Tribunal applied the correct test.

50. The application to the Administrative Appeals Tribunal was brought by Mr Richard Murray and his wife Mrs Susan Murray. Mr and Mrs Murray in fact traded in partnership under the business name of RW and SJ Murray and the assessment under review was issued to both of them. However, when the appeal was instituted the Commissioner omitted to join Mrs Murray as a respondent. This omission should now be rectified and we give leave to the applicant to amend the notice of appeal accordingly. The amendment should be made before the order is taken out.

51. The orders I would propose are accordingly that:-

1. Leave be granted to the applicant to amend his
notice of appeal by joining Sue Murray as a
respondent.
2. The appeal should be dismissed with costs. There
will be no order as to the costs of the
respondent's motion to contest the competency of
the appeal.