Chief Executive Officer of Customs v Boehringer Mannheim Australia Pty Ltd [1997] FCA 1235 (17 November 1997)

FEDERAL COURT OF AUSTRALIA

CUSTOMS TARIFF - whether calibration strips for photometers are "accessories" or "parts" of photometers within the meaning of heading 9027.90.90 - whether the strips contribute to the functioning of photometers - whether the strips are "composite diagnostic or laboratory agents" within the meaning of heading 3822 - whether the strips diagnose.

Customs Tariff Act 1987, Heading 9027, Heading 3822

Deputy Commissioner of Taxation v Polaroid Australia Pty Ltd (1971) 46 ALJR 32, discussed

Zendel Australia Pty Ltd v Federal Commissioner of Taxation [1992] FCA 461; (1992) 92 ATC 4515,

referred to

Collector of Customs v Johnson & Johnson Medical Pty Ltd, unreported, 15 August 1997 FCA, Full Court, referred to

Zendel Australia Pty Ltd v Commissioner of Taxation (1993) 46 FCR 14, applied

CHIEF EXECUTIVE OFFICER OF CUSTOMS v BOEHRINGER MANNHEIM AUSTRALIA PTY LTD

NG 354 of 1997

LEHANE J

SYDNEY

17 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 354 of 1997

BETWEEN:	CHIEF EXECUTIVE OFFICER OF CUSTOMS Applicant
AND:	BOEHRINGER MANNHEIM AUSTRALIA PTY LTD Respondent
JUDGE(S):	LEHANE J
DATE OF ORDER:	17 NOVEMBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 354 of 1997

BETWEEN:	CHIEF EXECUTIVE OFFICER OF CUSTOMS Applicant
AND:	BOEHRINGER MANNHEIM AUSTRALIA PTY LTD Respondent

JUDGE(S):	LEHANE J
DATE:	17 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) under s 44 of the Administrative Appeals Tribunal Act 1975 . It concerns the classification, under the Customs Tariff Act 1987 (the Tariff Act 9027 ) of goods described as test strips and calibration strips for photometers.

Background Facts

Those who suffer from diabetes, if they are to avoid, or defer the onset of, serious complications resulting from their condition, must monitor and control, within quite strict limits, the level of sugar (or glucose) in their blood. The monitoring is usually done by means of a photometer used in combination with strips of the kind in question in this case. The strips are suitable for use, in each case, with a particular model of photometer only: thus of the two varieties of strips in question, one is suitable for use with a photometer known as the "Reflolux S" and the other with a machine known as the "Accutrend". A strip designed for use in the Reflolux machine will not work in an Accutrend, and vice versa; neither will work properly if used with other photometers. Initially a photometer and a supply of strips are sold together as parts of a "kit"; but when a person with diabetes requires more strips, he or she buys them separately. Each batch of test strips is accompanied by a calibration strip. The purpose of the calibration strip is to adjust the photometer so that it will provide accurate readings when test strips of the particular batch are used.

On each test strip there is a chemically treated pad. A drop of blood is placed on the pad; the chemically treated area changes colour according to the level of sugar in the blood. By reference to a colour chart supplied with the strips, it is possible to measure, though not with precision, the level of sugar: that is done simply by comparing the colour of the strip with the colours on the chart. In order to obtain a measurement of sufficient accuracy to maintain proper control, however, it is necessary to use the photometer: the strip is inserted into the machine, which provides, displayed on a screen, a precise measurement.

Classification; procedural history

So much is common ground. It is common ground also that the photometers are correctly classified under heading 9027 of the Tariff Act. The heading reads:

INSTRUMENTS AND APPARATUS FOR PHYSICAL OR CHEMICAL ANALYSIS (FOR EXAMPLE, POLARIMETERS, REFRACTOMETERS, SPECTROMETERS, GAS OR SMOKE ANALYSIS APPARATUS); INSTRUMENTS OR APPARATUS FOR MEASURING OR CHECKING VISCOSITY, POROSITY, EXPANSION, SURFACE TENSION OR THE LIKE; INSTRUMENTS AND APPARATUS FOR MEASURING OR CHECKING QUANTITIES OF HEAT, SOUND OR LIGHT (INCLUDING EXPOSURE METERS); MICROTOMES:

The applicant, however, has classified the strips under heading 3822 as "composite diagnostic or laboratory agents...". The respondent contended that they should be classified, under 9027.90.90 as "parts" or "accessories" of the photometers. The respondent appealed to the Tribunal against the applicant's decision; the Tribunal dismissed the appeal and upheld the decision. Particularly, after referring to the judgment of Gibbs J in Deputy Commissioner of Taxation v Polaroid Australia Pty Ltd (1971) 46 ALJR 32 at 34, 35, the Tribunal said "...we cannot find that the strips are accessories to the photometers" and "... the goods in question cannot be regarded as components of photometers".

The respondent appealed from that decision to the Court, and on 31 August 1995 Whitlam J made orders by which the appeal was allowed, the decision of the Tribunal was set aside and the matter was remitted to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal. The error which, in his Honour's opinion, the Tribunal had made was that it had paid insufficient attention to the judgment of Hill J in Zendel Australia Pty Ltd v Federal Commissioner of Taxation [1992] FCA 461; (1992) 92 ATC 4515 and had thus mistakenly held that Polaroid required the conclusion, as a matter of law, that the strips were not accessories of the photometers. Whitlam J held that, applying the reasoning both of Hill J and of the Full Court ((1993) 46 FCR 14) in Zendel, it was open to the Tribunal to conclude that the strips were "accessories". His Honour held also, however, that the conclusion to which the Tribunal had come, that the strips were "composite diagnostic reagents", was also open to it on its findings of fact; that being so, the task of classification was a matter for the Tribunal and the matter was remitted to it so that it might perform the task. There was no appeal from the decision of Whitlam J. Its correctness, therefore, was accepted in the proceedings before me.

Accordingly, the matter was reheard by the Tribunal, differently constituted. The Tribunal held that the strips should be classified under heading 9027, as accessories of the photometers. It is from that decision that the applicant now appeals and accordingly, some six years after entry of the goods, I must now decide whether the Tribunal made an error of law in classifying them as it did. The legislation relevant to that question is, of course, that in force at the date of entry of the goods and that is the legislation to which I have referred and will continue to refer.

Errors of law attributed to the Tribunal

The applicant submitted that the Tribunal made two specific errors of law. One was said to be a misconstruction of the expression "composite diagnostic reagent" in heading 3822; the other was that the Tribunal was said either to have applied the wrong test in determining whether the goods were "accessories" of the photometers or to have given no reasons for reaching the conclusion that they were. Those errors arose, the applicant contended, to a large extent from a failure by the Tribunal to make clear findings of fact as to the nature and function of the goods and thus adequately to identify them (Collector of Customs v Johnson & Johnson Medical Pty Ltd, unreported, 15 August 1997 FCA, Full Court).

In order to demonstrate that point, the applicant referred particularly to two aspects of the Tribunal's reasons. First, there is the following passage in the Tribunal's reasons:

The Tribunal notes that the goods [the] subject of this application originate in the Federal Republic of Germany and are imported by the Applicant in the form of kits with separate replacement packets/vials of test and calibration strips for sale. The purpose of these is for use in the testing of glucose levels in the blood of diabetes sufferers. There were two kits before the Tribunal, the Reflolux S blood monitoring system... and the Accutrend alpha Blood Glucose Monitoring Kit....

That, the applicant said, was simply wrong: the goods with which it was concerned were not the "kits" but the separate vials or batches of strips. So much, of course, is true and would be significant if the reasons as a whole indicated that the Tribunal might have misunderstood what it was required to classify. In my view, however, the reasons, read as a whole, make it quite clear that the Tribunal correctly understood that the goods to be classified were the strips, imported separately from kits, not the kits. The opening paragraph of the Tribunal's reasons says so: it refers to the test strips and the calibration strips as the goods to be classified. Then, in a passage in which it states the issues before it, the Tribunal lists, as one of those issues, "whether the test strips and calibration strips were "parts" or "accessories" for reflectance photometers." Finally, the Tribunal's consideration of the two suggested classifications leaves no doubt, in my view, that it was seeking to classify test and calibration strips, not kits.

Secondly, it was suggested that the Tribunal, rather than make findings as to the nature and function of the goods, merely recited evidence without clearly indicating what evidence it accepted or what findings it made on the basis of the evidence. Typical of the passages in the reasons to which I was referred is the following account of evidence given by a medical physiologist, Dr George Koumentakis:

The evidence of Dr Koumentakis assisted the Tribunal with information about diabetes and variation in blood sugar levels which he said depended in part on the activities a diabetic was undertaking. The acceptable range of readings for a person fasting was 4.2 to 5.5 mmol/L he said.

Similarly there is the following account of some evidence given by Mr Ronald David Paton, an electronics technician:

Mr Paton told the Tribunal that there was a similar principle involved for both kits, and visual inspection involving colour change was used to verify readings. He pointed out that diabetics knew their approximate levels and anticipated readings, and that the colour and visual inspections were for verification purposes.

No doubt the Tribunal could have been more explicit about some of its findings. In my view, however, the Tribunal made adequate findings as to what the strips were, what functions they performed and how they were used. For example, plainly it accepted Mr Paton's evidence about the technical functioning of the strips and how the strips were used in conjunction with the photometers:

Mr Paton's written statements provide in great detail the technical functioning of the test and calibration strips, which are known to all the parties, and which do not need full reiteration here. He was also kind enough to demonstrate the kit for the Tribunal.

By way of further illustration, there was a question as to the extent to which the test strips might be used to measure glucose concentrations by visual readings only, rather than in conjunction with the photometers:

The Tribunal noted from the evidence that in a third world country where the photometers might not be available due to cost or other factors, it is conceivable that diabetics might rely on visual readings alone. The Tribunal notes from the evidence given that this would not be the case in Australia.

That may not be expressed as findings sometimes are expressed; it is, however, a finding nevertheless.

"Composite diagnostic reagents"

The heading concerned is:

3822.00.00 Composite diagnostic or laboratory reagents, other than those of 3002 or 3006

The exception is not relevant for present purposes and may be ignored. The heading occurs in chapter 38 of Schedule 3 to the Tariff Act the title of which is "miscellaneous chemical products"; the applicant placed some stress on that title, but it is to be recalled that the general interpretation rules (Sch 2 para 1) provide that the titles of chapters are included for ease of reference only and that classification is to be determined according to the terms of headings and any relevant section or chapter notes.

The Tribunal found on the evidence that there was no "trade meaning" of the expression "composite diagnostic reagent". The Tribunal therefore turned to standard dictionaries to ascertain the ordinary meanings of the three words "composite", "diagnostic" and "reagent". No question arises as to the word "composite". The Tribunal found that the ordinary meaning of "reagent" was "a substance, which on account of the reaction it causes, is used in chemical analysis". Thus far, again, there is no controversy. The Tribunal continued, however, to accept a submission:

...which clarifies that a reagent is used in chemical analysis, and that the test strips have one function only, to measure blood glucose. They are not for analysing anything. They are simply to measure blood glucose, and give a colour test, a confirmatory or validating procedure.

The Tribunal proceeded to find, on the evidence, that the photometer and the test and calibration strips were interdependent, so that the strips could not be used effectively without the photometer and vice versa:

It is the action of the blood on the strip which when inserted into the photometer gives an accurate reading for the diabetic of his or her blood glucose level. The Tribunal has considered the dictionary definitions of "composite diagnostic reagent" and cannot find that the test strips and their calibration strips are diagnostic reagents within the terms of heading 3822.

The applicant pointed to an earlier finding by the Tribunal that "a chemical reaction occurs when blood is left on either of the test strips for the requisite time" and to several references in the evidence before the Tribunal to the substances in the test patches on the strips as reagents. It was submitted that the Tribunal introduced an unwarranted gloss on the ordinary meaning of "reagent" by drawing a distinction between measurement and analysis. Where the "measurement" is the ascertainment of the level of a particular component of a blood sample, the distinction between measurement and analysis is, in my view, by no means self evident. In drawing it, the Tribunal seems to have had in mind evidence, which it accepted, that it is of the essence of a "diagnostic reagent" that its "end user" may modify it and use it for various purposes: the strips, by contrast, could be used for the purpose of making one particular measurement only, and only in conjunction with one particular piece of equipment. A difficulty with that approach may be that, having found that there was no identifiable "trade meaning" of the phrase "composite diagnostic reagent" and having resorted to the ordinary meaning of the words, the Tribunal then departed from the ordinary meaning to adopt, without clearly justifying its course in doing so, a special meaning. It may be added that the special meaning apparently adopted was suggested by one of the witnesses who also gave evidence that "composite diagnostic reagent" was not a term of art. If that were the sole basis of the Tribunal's decision that the strips were not to be classified under the heading "composite diagnostic reagent", there might be much to be said for the applicant's contention that the decision was infected by error of law.

The Tribunal gave, however, a further, separate reason for its decision, based on the word "diagnostic". The Tribunal found, uncontroversially, that "diagnostic" means "pertaining to a diagnosis" or "having value in diagnosis". It made the following finding:

The Tribunal is mindful that there was no argument between the parties, that a chemical reaction occurs when blood is left on either of the test strips for the requisite time, and accepts that. There is also an electronic reading which is produced when the test strip is inserted into the photometer. However the Tribunal finds that there is no question of diagnosis. Blood glucose levels are being measured as a result of a chemical reaction; no diagnosis is being made. The Tribunal accepts the submission made that indicates persons using the test strips generally know that their blood glucose levels require monitoring, and that many will know what level they are measuring for.

That finding may appear somewhat cryptic, but what the Tribunal meant by it is clarified by a later passage in its reasons:

The Tribunal accepted that the test and calibration strips have a role in a chemical reaction activated by blood, but finds they do not diagnose. The evidence before the Tribunal which [it] accepts was that persons using these tests have been diagnosed with diabetes, and are simply using the test and calibration strips and the photometer to monitor glucose levels.

Thus, the Tribunal found that the purpose of the strips was not to determine (or diagnose) the nature of the condition from which a person suffered: they were used by persons whose condition (diabetes) had already been ascertained to perform regular and essential monitoring. The applicant made two complaints about that aspect of the Tribunal's reasons. First, it wrongly chose, from the range of possible meanings of "diagnosis", its narrower "medical" meaning. Secondly, even if the Tribunal was right in adopting the "medical" meaning, it erred by failing to recognise that the measurement effected by means of the strips determines the nature of (and thus diagnoses) the sufferer's condition from time to time.

The applicant referred to the identification by the earlier Tribunal (whose decision was set aside by Whitlam J on appeal) of two different ordinary meanings of the word "diagnose", each found in the Shorter Oxford English Dictionary (similar definitions are to be found in the Macquarie Dictionary). The second edition of the Shorter Oxford English Dictionary gives a medical definition as follows:

Determination of the nature of a diseased condition; identification of a disease by investigation of its symptoms and history; also the formal statement of this.

It gives, as a "biological, etc" definition:

Distinctive characterisation in precise terms (of a genus, species, etc.).

The words in parentheses at the end of the biological definition (which the earlier tribunal did not include in its quotation) indicate, in my view, that that is not a meaning appropriate to be applied to the test strips or to be attributed to the word "diagnostic" in the heading. Reference to the examples of the "biological, etc" use given in the second edition of the Oxford English Dictionary makes this abundantly clear. The Tribunal was right, I think, to adopt, as it clearly did, the medical meaning; and, given its findings of fact, the Tribunal was right also, in my view, to hold that the regular measurement of the blood sugar level of someone suffering from diabetes is not performed in order to determine the nature of the sufferer's condition (that, as the Tribunal observed, is known) or to identify a disease by investigation of its symptoms and history (that has already been done, and it is because it has been done that a course of regular monitoring has been instituted). Having found, as a matter of fact, for what purpose the strips were used, the Tribunal thus made no error in holding that they are not "diagnostic". Because the decision on the heading "composite diagnostic reagent" was justified on one of the grounds on which it was put, the decision is not to be set aside on the basis that a second ground given by the Tribunal may have been fallacious.

Accessories

The commencement of the Tribunal's reasoning may be summarised as follows. The photometers were, the parties accepted, correctly classified under heading 9027 as instruments or apparatus for measuring light. The calibration and test strips were suitable for use solely or principally with photometers of the particular kinds in question; accordingly, if they were properly to be described as parts or accessories of the photometers, they were to be classified "with" them, that is, under the same heading (Tariff Act Sch 3 Ch 90 Note 2). The Tribunal then held that the strips were not properly to be regarded as "parts" of the photometers. The Tribunal accepted the proposition stated by Davies J in Waterscheid Australia Pty Ltd v Collector of Customs (1987) 7 AAR 555 at 565 that it is not of the essence of an accessory that it relate to the essential function of some other thing: thus, for example, mats specially designed to fit a particular brand of car are properly described as accessories of the cars (Gefo Australia Pty Ltd and Collector of Customs (1987) 12 ALD 295). The Tribunal found, however, that the strips "contributed to the working of the photometer". The Tribunal noted that the test and calibration strips were interdependent and suitable for use solely or principally with the particular photometers. Its reasoning proceeded as follows:

The Tribunal accepts the submission of the Applicant that an "accessory" must contribute to the functioning of the item. The Tribunal therefore finds that the test and calibration strips which it finds contribute to the functioning of the photometers, otherwise inactive meters, should be classified according to Note 2(b) and hence according to the classification for the respective kits, that is heading 9027.90.90....

The Tribunal determines on the basis of the case law... that the test and calibration strips are "accessories" for the photometers supplied in the Reflolux and Accutrend kits.

The applicant's submission was that the Tribunal erred in two ways. First, the authorities did not warrant the conclusion that an accessory must "contribute to the functioning" of an item. Secondly, even if it were right that an accessory must contribute to the functioning of an item, the Tribunal erred in proceeding on the footing that contribution to function, though a necessary condition for an item to be an accessory, was also a sufficient condition. The applicant submitted alternatively that the Tribunal's decision should be set aside on the basis that it had failed to give sufficient reasons adequately to disclose the reasoning process by which it arrived at the conclusion that the strips were accessories for the photometers.

In Polaroid Gibbs J held, at 35, that the word "accessory" in the context of the sales tax legislation was to be given its ordinary dictionary meaning. His Honour summarised that meaning as "an adjunct, which itself is defined as something joined to another, but subordinate, as auxiliary, or dependent upon it" and proceeded to hold that:

An accessory for a camera is an extra and additional part of the equipment itself, such as a light meter, a filter or a wide angle lens, and in the ordinary course of language a film would not be referred to as an accessory for a conventional camera, nor a film pack or a picture roll as an accessory for a Polaroid camera.

The Tribunal followed that decision in Re National Panasonic (Australia) Pty Ltd and Collector of Customs (NSW) (1985) 7 ALD 647 at 658, 659: in the context of the Customs Regulations, the Tribunal held that video cassettes were not accessories for video recorders.

In Zendel Australia Pty Ltd v Commissioner of Taxation (1993) 46 FCR 14 the Full Court dismissed an appeal from a decision of Hill J reported at [1992] HCA 65; (1992) 92 ATC 4,515. The case concerned aluminium foil, plastic food wrap and plastic bags. One of the contentions was that the plastic goods were to be regarded as accessories for freezers and the foil as an accessory for an oven. Hardly surprisingly, Hill J and the Full Court rejected that contention. In the Full Court Lockhart J, with whom Gummow J agreed, said at 18:

Ultimately, the meaning of the word "accessory" must acquire its meaning from the particular context in which it is used. In my opinion, for an item to be an accessory within the meaning of the Act, it must contribute to the working of some principal item or its general effect or appearance. The aluminium foil, for example, with which this case is concerned, does not, in my view, contribute to the stove or its function, or its effect or appearance.

A stove functions and performs in the same way irrespective of the use of aluminium foil. Foil certainly may improve the effect of cooking on the food, just as freezer bags may modify the effect of freezing on food; but that simply says that the product in question assists in the process of cooking or freezing. They are an adjunct to the process, rather than an adjunct to the appliance itself, and unless they are an adjunct to the appliance - which in my view they are not - they cannot fall within the relevant position (sic).

(That passage is no doubt the source of the Tribunal's phrase "contribute to the functioning": in the context of the strips, "general effect" and "appearance" are irrelevant).

That passage is substantially the same as the reasoning of Hill J[1992] FCA 461; , 92 ATC 4515 at 4520. Beaumont J in the Full Court added (again reflecting comments made by Hill J at first instance) (at 18):

If the subject goods had been designed exclusively for use in connection with a refrigerator or an oven or even if, perhaps, the goods in question had actually been used exclusively in conjunction with an oven or a refrigerator, it could be that the conclusion contended for by the appellants may have been open. But, in the present case, there is no evidence and, indeed, no suggestion, that these goods were either designed exclusively for that purpose or, in practice, used exclusively for that purpose.

Whitlam J relied on those passages in Zendel in concluding that the Tribunal was not precluded by Polaroid from finding that the strips were accessories for the photometers; and the Tribunal relied on them also in arriving at the conclusion that they were indeed accessories. The applicant complains, as I have mentioned, that the Tribunal treated the passages in Zendel as if they stated a sufficient, as well as a necessary, condition for a finding that one thing is an accessory for another.

The principal meaning attributed to "accessory", as a noun, by the Oxford English Dictionary, second edition, is:

An accessory thing; something contributing in a subordinate degree to a general result or effect; an adjunct, or accompaniment.

As an adjective, the word is defined as:

Of things: Coming as an accession; contributing in an additional and hence subordinate degree; additional, extra, adventitious.

As Zendel holds, however, regard is to be had to the context and, as Whitlam J in substance pointed out when remitting the matter to the Tribunal, reasoning by analogy, while a common and useful process, has its dangers. It is, perhaps, all too easy to say that a camera will not function without a film, a recorder without a tape or a motor car without petrol; a film is not an accessory of a camera, a tape of a recorder or petrol of a motor car: because a photometer, in a similar way, will not function without a test strip, consistently with authority a test strip is not an accessory of a photometer. But to say that is to fall into precisely the error which Whitlam J identified in the reasons of the earlier tribunal.

"Accessories" is used, in the statutory context here in question (as in the sales tax legislation), in close association with "parts". The dividing line between what is a "part" and what is an "accessory" may itself be elusive. A part of a manufactured good may be of crucial, of little or of no importance to the performance of its primary function: a cigarette lighter built into a vehicle in the course of its manufacture may, apparently, be a "part" of the vehicle: Waterscheid at 565. On the other hand, apparently, mag wheels may be an accessory of a car (Zendel 92 ATC at 4515).

If the description of something as a part does not depend on its significance to the performance of a good's function, it is not easy to see why that is not equally true of an "accessory". There is no doubt that the definition of accessory suggests that it plays a subordinate, rather than the principal, role in bringing about a result or effect; I do not think it follows, however, and I do not think that authority requires it to be held, that if a thing is essential to the performance of the principal function of another thing, it cannot be an accessory of that other thing. If something contributes to the working of a principal item or its general effect or appearance and, furthermore, is manufactured specifically for use with that principal item, why should it be regarded as an accessory only if it is not necessary to enable the principal item to do what it is designed to do? Such a conclusion, in the context, seems to me by no means wholly rational.

If one turns to the facts found by the Tribunal in this case, the purpose of the photometers is to measure the level of sugar in blood. In order to use the photometer for that purpose, one needs calibration and test strips designed specifically for the particular photometer. The strips in question meet that description. They may properly be described as performing a subordinate, though essential, role in the performance by the photometer of its function. They may properly, therefore, be described as accessory things in relation to the photometers; things contributing in a subordinate degree to the general result which the photometer is designed to produce.

So to conclude is not, in my view, contrary to authority. It is not inconsistent with the proposition that fuel is not an accessory for a vehicle, a tape for a recorder or a film for a camera. It must be conceded that the actual facts of Polaroid are, perhaps, more difficult to distinguish because there the particular films (or at least some of them) were specifically designed for use with particular cameras: it may be, however, that the analogy with the relationship between an ordinary camera and an ordinary film was so close as to be compelling. In any event, Whitlam J has held, in the light particularly of Zendel, that Polaroid did not require the conclusion that the strips were not accessories of the photometers. The parties accepted that, and I respectfully agree.

What I have said in my view reflects the substance of the Tribunal's reasoning. In essence, it was that the strips are specifically designed for the photometers; they play a subordinate (though essential) role in enabling the photometers to operate so as to produce the intended result or effect; they are accessories for the photometers. In my view no error is disclosed.

Conclusion

For those reasons the decision of the Tribunal is affirmed; the application is dismissed with costs.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane

Associate:

Dated: 17 November 1997

Counsel for the Applicant:	Mr S J Gageler
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr D E Grieves QC
Solicitor for the Respondent:	Holman Webb
Date of Hearing:	22 October 1997
Date of Judgment:	17 November 1997