Australian Native Landscapes Pty Ltd v Collector of Customs [1997] FCA 81 (21 February 1997)

CATCHWORDS

CUSTOMS AND EXCISE - statutory construction - "agriculture" includes "horticulture" - whether any difference between ordinary usage and trade usage of "horticulture".

ADMINISTRATIVE LAW - question of law - whether ordinary rather than trade meaning of term should be used.

Administrative Appeals Act 1975 (Cth), s 44(1)

Customs Act 1901 (Cth), ss 164(1), 164(7)

Customs and Excise Legislation Amendment Act 1995 (Cth)

Diesel Fuel Taxes Legislation Amendment Act 1982 (Cth)

Excise Act 1901 (Cth), s 78A

Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 141 ALR 59

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

D & R Henderson (MFG) Pty Ltd v Collector of Customs for the State of New South Wales (1974) 48 ALJR 132

Herbert Adams Pty Ltd v Federal Commissioner of Taxation [1932] HCA 27; (1952) 47 CLR 222

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 259

AUSTRALIAN NATIVE LANDSCAPES PTY LTD v COLLECTOR OF CUSTOMS

NG 853 of 1995

Sackville J.

Sydney

21 February, 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NG 853 of 1995

GENERAL DIVISION )

BETWEEN:

AUSTRALIAN NATIVE LANDSCAPES PTY LTD

Applicant

AND:

COLLECTOR OF CUSTOMS

Respondent

Coram: Sackville J.

Place: Sydney

Date: 21 February, 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NG 853 of 1995

GENERAL DIVISION )

BETWEEN:

AUSTRALIAN NATIVE LANDSCAPES PTY LTD

Applicant

AND:

COLLECTOR OF CUSTOMS

Respondent

Coram: Sackville J.

Place: Sydney

Date: 21 February, 1997

REASONS FOR JUDGMENT

Introduction

This is an appeal by Australian Native Landscapes Pty Ltd ("the applicant"), pursuant to s.44(1) of the Administrative Appeals Act 1975 (Cth) (the "AAT Act"), from a decision of the Administrative Appeals Tribunal ("AAT"), given on 12 October 1995. The AAT, constituted by Deputy President McMahon, affirmed a decision of a delegate of Chief Executive Officer of the Australian Customs Service, that diesel fuel purchased by the applicant for use in the manufacture of growing mediums or potting mix was ineligible for rebate under s.164(1) of the Customs Act 1901 (Cth) (the "Customs Act 1901 ") or s.78A of the Excise Act (Cth) (the "Excise Act"). In substance, the AAT found that the applicant was not engaged in "horticulture", as that term is used in s.164 of the Customs Act 1995 and was therefore ineligible for a rebate.

An appeal under s.44 of the AAT Act is available only on a question of law. The applicant submitted that the AAT had erred in its construction of s.164(7) of the Customs Act, in particular by giving the expression "horticulture" what was said to be an unduly literal and narrow interpretation.

The Legislation

Section 164(1) of the Customs Act provides that a rebate is payable in respect of diesel fuel to a person who purchases the fuel for use by him or her in primary production. "Primary production" is defined to mean, inter alia, "agriculture": s.167(7). The term "agriculture" is defined in turn by s.167(7) to mean:

"(a) the cultivation of the soil; or

(b) the cultivation or gathering in of crops; or

(c) the rearing of live-stock; or

(d) viticulture, horticulture, pasturage or apiculture;

and includes:

...

but does not include

(zc) fishing operations or fishery; or

(zd) an activity referred to in any one of paragraphs (a) to (za)...unless the activity is carried out for the purposes of, or for purposes that will directly benefit, a business undertaken to obtain produce for sale." [Emphasis added.]

The expression "horticulture", which is used in para.(d) of the definition, is itself defined to include:

"(a) the cultivation or gathering in of fruit, vegetables, herbs, edible fungi, nuts, flowers, trees, shrubs or plants;

(b) the propagation of trees, shrubs or plants; or

(c) the production of seeds, bulbs, corms, tubers or rhizomes."

The Excise Act also provides for a rebate of duty in respect of diesel fuel used for certain purposes, including primary production. The Excise Act adopts by reference the relevant definitions in the Customs Act: Excise Act, s.78A(7).

Background to the Legislation

The current form of s.164 of the Customs Act reflects amendments effected by the Customs and Excise Legislation Amendment Act (Cth) (the "Amendment Act 1982 "). Section 5 of the Amendment Act provides that all applications made to the AAT before the day the Act received Royal Assent (1 July 1995), but not decided before that day, are to be decided under the Customs Act as in force on and after that day. Thus, the AAT was required to consider the application before it under the Customs Act, as amended by the Amendment Act.

Prior to the Amendment Act coming into force, s.164(7) defined "agriculture" to mean the following:

"(a) the cultivation of the soil;

(b) the cultivation or gathering in of crops; or

(c) the rearing of live-stock;

and includes:

(d) viticulture, horticulture, pasturage or apiculture;

(e) hunting or trapping carried on for the purpose of a business; or

(f) other operations (including operations by way of pest or disease control or by way of soil or water conservation) connected with any operations referred to in paragraph (a), (b), (c), (d) or (e)".

The changes effected by the Amendment Act therefore included the following:

* the expression "horticulture" was moved from a subsidiary to a primary position in the definition of "agriculture";

* the definition of "agriculture" was amended to incorporate, in addition to the four principal paragraphs, 24 additional paragraphs (para.(e)-(zb)) identifying specific activities to be included within the definition;

* paragraph (f) of the old definition, which included other operations "connected with any operations" referred to in the paragraphs (a)-(e), was repealed; and

* paragraph (zd), which excludes an activity from the definition of "agriculture" unless it is carried out for the purposes of, or for purposes that will directly benefit, a business undertaken to obtain produce for sale, was added to the amendments to the definition.

The Explanatory Memorandum accompanying the 1995 Amendment Bill set out the purpose of the new definition:

"The purpose of the omission and substitution of the definition of 'agriculture' is to clarify that the ambit of the [Diesel Fuel Rebate Scheme] is restricted to paying rebate on diesel fuel purchased for use in the preparation of the soil, the act of growing primary produce or rearing of livestock, and for use in other activities that are sufficiently connected with 'agriculture' to be considered eligible for the payment of rebate. This will remove any doubt that the DFRS is a targeted scheme that will provide rebate of customs and excise duty for diesel fuel for use in activities that fall completely within the activities specified in the new definition of 'agriculture' rather than in respect of activities that may, in a loose sense, go towards 'encouraging' agriculture.

The payment of rebate of customs and excise duty on diesel fuel was originally intended to be made to those involved in the business of farming, as that is understood by the common person. This is implicit in the terms of paragraph 164(1)(aa) of the Customs Act which provides for the eligibility for diesel fuel rebate in respect of diesel fuel for use in 'primary production'. The amendment proposed in this item makes it clear that persons conducting so-called 'hobby farms' for the purposes of recreation, prison farms or agricultural colleges or persons who live in a farm as a substitute for living in a house in a town or a city and who cannot be said to be operating a farm to make a living are ineligible to receive rebate.

...

New paragraphs (e),(f),(g),(h),(i),(k),(l),(m),(n) and (o) of the definition of 'agriculture' specify those activities in respect of which rebate is payable. These paragraphs replace the so-called 'sweeper clause' in existing paragraph [(f)] of the definition of 'agriculture' under which activities said to be 'connected with' agriculture are eligible for the payment of rebate.

The eligible activities proposed to be inserted by new paragraphs (e) to (o) inclusive are activities ordinarily conducted either by, or on behalf of farmers as part of the operations of their farming businesses. Organisations engaged in the provision of services and utilities to farmers, such as electricity and water, are not eligible to receive rebate. Other activities that do not fall within the ordinary meaning of the terms used in new paragraphs (e) to (o) will also be ineligible to receive rebate in respect of diesel fuel for use in such activities."

The Facts

There was no challenge to facts as found by the AAT. The AAT's account of the facts was as follows:

"2. At Badgerys Creek, south west of Sydney, the applicant conducts a number of businesses. These include the production of potting mixes, soil mixes and soil conditioners, processing of bark and other forest materials for use in landscape and horticultural activities, and the selling by wholesale of landscape products such as sleepers, quarry materials, gravel and organic mulches. The diesel fuel is used in various machines that will be described....

3. There are a number of steps in the production of potting mix. The first process is carried out either at Badgerys Creek or at a point of supply, such as a sawmill. The applicant uses diesel powered tub grinders to reduce bark, sawdust and timber offcuts to the correct particle size for consumption in the production of potting mix. The particles are then sized in a screening machine prior to composting. These operations already attract the payment of diesel fuel rebate because of the reasoning of this Tribunal in Re Deplazzi & Sons and Collection of Customs Decision No. 8770 11 June 1993. That decision held that treatment of bark, sawdust and timber offcuts in similar circumstances amounted to forestry operations.

4. After passing through the screening process, some of the product is sold as mulches. No rebate is claimed in relation to fuel consumed for the purpose of simply making mulches.

5. The balance of the materials, after the primary process, is then treated by the addition of water, sewage sludge, or other fertiliser, agricultural lime, urea and trace elements in a measured volume prior to commencement of the composting operations. Mixing is carried out by the use of a diesel powered loader.

6. After this operation has been carried out, the mixture is moved by a diesel powered front end loader into windrows which are approximately 100 metres in length, 3 metres in width and 2 metres in height, to enable composting to take place in ideal conditions. During this process, the windrows are raked by a diesel powered windrow turner which proceeds along the full length of the windrow, turning the product and aerating it. This procedure is carried out weekly for a minimum of 9 weeks and a maximum of 16 weeks. Diesel fuel rebate is currently paid in respect of this operation performed by the front end loader.

7. After the composting process has been completed, the basic mix has added to it further constituents specified by the particular customer to whom the batches are to be sold. This stage of the production requires the addition of elements, such as sand (of specified grades), peat, peat moss, composted rice hulls, black loam soil and furnace treated rock. The applicant's catalogue indicates that it mixes some 365 different variations. Ten of these (presumably the commonest) are listed and priced in the catalogue. After the addition of the specified constituents, the potting mix reaches the final stage of production and is batched in accordance with customer's orders. The applicant is a wholesaler. Potting mix prepared in accordance with particular orders is sold to individual plant nurseries. The applicant has no control over the use to which the nurseries put the potting mix. There is no real contest, however, that the end product is used by plant nurseries for the purpose of raising plants for sale.

8. After mixing to the customers' specifications, each batch is then tested and delivered to the client.

9. The whole operation is carried out on a large scale in an area of 10 hectares. Quite a number of large and expensive machines are used in the process. After the end product leaves the premises, the applicant has no more to do with it, save to honour any obligations it may have as a vendor under the general law. There is no evidence that the applicant plays any part in the operations of the plant nurseries once the product has been delivered."

The AAT's Reasons

The AAT identified the principal question as whether the applicant's activities constituted horticulture. It referred to the evidence of two experts, who had expressed different opinions on the issue. The first was Mr Leake, a soil scientist retained by the applicant, who said that in his opinion the production of potting mix for sale to growers was horticulture. Mr McMaugh, a horticulturalist, expressed the contrary view.

The AAT noted that Mr Leake's opinion appeared to be based on the fact that until about 1981, all or most plant nurseries made their own potting mix products "in house". Mr Leake had said that, because potting mixes were formerly produced as part of the saleable item (a plant in a pot full of potting mix), the making of the potting mix was a horticultural activity. However, the AAT rejected this view, pointing out that the applicant's activities were not confined to that of a nursery preparing its own potting mix on a scale suitable to its own enterprise. Rather, it was engaged in large scale, wholesale and commercial activities. These were not to be categorised by reference to smaller scale activities conducted in an earlier era, bearing in mind that Mr Leake knew of only one nursery in Sydney that still made its own potting mix.

In any event, the AAT pointed out that the potting mix and the pot merely supported the plant. It was true that a buyer would be unlikely to buy a plant without potting mix. But it did not follow that the manufacture of the pottery mix was part of the horticultural activity carried on by the nursery, any more than it followed that the making of pots by plastic injection moulding would be a horticultural activity because the pot was used to house the final saleable item.

The AAT found useful Mr McMaugh's comparison of the applicant's activities with those of a company manufacturing fertiliser for use in growing plants or crops. Mr McMaugh's view, which the AAT accepted, was that the manufacture of fertiliser was not horticulture and that this provided a useful analogy with the commercial production of potting mix. The analogy suggested that the commercial production of potting mix was not horticulture.

The AAT referred to the repeal of paragraph (f) of the old definition of "horticulture" (which included operations "connected with any" horticulture). After the repeal of paragraph (f), while some activities outside the core definition of "horticulture" (in s.167(7)) might be regarded as horticulture, it was not enough that activities simply be connected with any of the three paragraphs of that core definition. The AAT observed that to come within the inclusive definition of "horticulture", a person would need to show that he or she engaged in the activities described in the three paragraphs of the definition or, in activities outside those specified in the three paragraphs, but still within the normal meaning of horticulture.

The AAT then referred to the Macquarie Dictionary and Shorter Oxford English Dictionary definitions of horticulture: These are, respectively, as follows:

"1. commercial cultivation of fruit, vegetables, and flowers, including berries, grapes, vines and nuts; 2. the science or art of growing fruit, vegetables, flowers or ornamental plants; 3. The cultivation of a garden."

"the cultivation of a garden; the art or science or cultivating or managing gardens, including the growing of flowers, fruit and vegetables."

The AAT continued (at para 29):

"Each of the definitions refers to an activity, consisting of cultivation. This immediate involvement in fostering growth of organic substances seems to me to be the essential element of the concept of horticulture."

The AAT quoted (at para 30) from Mr Leake's report, in which he stated that the propagation and cultivation of a plant required the following integral steps:

"1. gathering in of a propagule either sexual or vegetative,

2. striking or germinating of that propagule in a medium usually referred to as 'propagating mix',

3. stabilisation of that newly struck or germinated propagule to a point where it can be 'potted up',

4. potting up of the stabilised propagule into a medium usually referred to as 'potting mix' either manufactured by the propagator or brought in from a supplier,

5. Cultivation of the potted plant into a saleable item."

The AAT continued (at para 31):

"In my view, this is a concise description of the type of activities comprehended by the word horticulture. The fact that these activities include the use of propagating mix or potting mix does not, of itself, impress the manufacturing of those substances with the essential character of horticulture. The applicant's products may be used in the propagation and cultivation of plans, but the applicant itself is not propagating or cultivating plants. There is no immediacy between the applicant's activities and the direct cultivation of the produce of the soil. Consequently, it can not be said that the relevant amount of diesel fuel which it purchased was for use by it in primary production, thus entitling it to the rebate."

The Applicant's Submissions

Mr Gray, who appeared on behalf of the applicant, submitted that the AAT's approach to construction was erroneous because it ignored the principle that economic legislation is to be construed in accordance with its purpose, rather than from a "narrow, literalist" perspective. It also ignored the principle that a revenue law directed to commerce is usually taken to employ the description and adopt the meanings in use among those who exercise the trade concerned: Herbert Adams Pty Ltd v Federal Commission of Taxation [1932] HCA 27; (1952) 47 CLR 222, at 227, per Dixon J. Mr Gray contended that the AAT had incorrectly limited itself to the dictionary definition and the evidence of a single expert as to his understanding of the word "horticulture".

In his oral argument, Mr Gray submitted that the starting point was that those in the industry, as both Mr Leake and Mr McMaugh had acknowledged in their evidence, regarded horticulture as including the making of potting mix by a horticulturalist for the purposes of cultivating plants, crops or other produce. It followed logically that an external manufacturer of potting mix was also engaged in horticulture, even though the manufacturer was not producing plants. The only difference was that one was producing potting mix on a small scale, while the other was producing it on a larger scale.

Mr Gray submitted that the AAT should have considered specialist text or trade dictionaries rather than general dictionaries. It should also have paid regard to the trade meaning of the word "horticulture", particularly in 1982 when the predecessor to the present s.164 of the Customs Act was enacted by the Diesel Fuel Taxes Legislation Amendment Act (Cth).

An Error of Law?

An appeal lies to this Court from the AAT only if a question of law is raised. The recent judgment of the High Court in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 141 ALR 59, referred to the distinction between fact and law as vital in many areas of law. The Court also accepted that no satisfactory test of universal application has yet been formulated and pointed to some difficulties with certain distinctions drawn in earlier cases. Despite the absence of a satisfactory universal test, the Court applied the principle (at 65) that

"the determination of whether an 'Act uses [an] expression...in any other sense than that which [it has] in ordinary speech' is always a question of law".

One of the arguments put on behalf of the applicant, as I understood the submission, was that the AAT applied the ordinary meaning of the expression "horticulture", rather than the trade meaning. This, it was said, led the AAT to overlook making the relevant inquiries. In the light of the High Court's decision in Collector v Agfa-Gevaert, this issue, at least, raises a question of law.

Trade Usage

In legislation dealing with revenue or rebates, a court is generally ready to conclude that the statutory language is intended to be understood in accordance with common commercial or trade usage. In D & R Henderson (MFG) Pty Ltd v Collector of Customs for the State of New South Wales (1974) 48 ALJR 132, Mason J acknowledged (at 135) this principle. However, his Honour was not satisfied on the evidence before him in that case that the relevant words had a meaning which "according to commercial and trade usage differs from their natural and ordinary meaning". In my view, the present case is similar.

It is true that in the present case the AAT did not specifically advert to the distinction between construing statutory language in accordance with in its ordinary meaning and adopting the trade or commercial usage of the language. But the absence of an express reference to the distinction does not mean that the AAT should be taken to have ignored or overlooked it. In Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, the Full Court said (at 286-287):

"Only in exceptional circumstances should the decision of the Tribunal not be the final decision. As the Full Court said in Repatriation Commission v Thompson (1988) 9 AAR 199 at 204:

'...the nature of the task of this Court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.'

This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." [Some citations omitted.]

This passage, the last section of which was cited with approval in the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 259, at 272- 272, must be borne in mind when considering the AAT's reasons.

The only expert evidence before the AAT was that of Messrs Leake and McMaugh. Neither of the expert reports nor the submissions made by the parties to the AAT, analysed the evidence in terms of the distinction between the ordinary meaning of statutory language and trade usage. But, clearly enough, that evidence went to the way in which the expression "horticulture" was understood by those engaged in the relevant trade. It was not merely evidence of how the expression "horticulture" is understood or used in ordinary speech. As it happened, there was a good deal of common ground between the experts, but they differed on whether an external manufacturer of potting mix (that is, one not simply preparing potting mix for the purpose of his or her own growing activities) was engaged in horticulture.

Far from ignoring this evidence the AAT summarised the competing views and gave reasons for concluding that, to the extent that the experts differed, the evidence of Mr McMaugh was to be preferred. In particular, the AAT relied on his evidence to the effect that the manufacture of potting mix, like that of fertiliser, was not horticulture. The point of referring to this evidence was to demonstrate that there was no trade usage that extended the expression "horticulture" to embrace the applicant's activities. As in Henderson v Collector, a finding was made on the evidence that the trade or commercial usage of "horticulture" was not relevantly different from its ordinary meaning.

It follows that the AAT did not make the error of law identified by the applicant. It did construe the statutory language by reference to trade or commercial usage. The finding that the trade or commercial usage was no different from the ordinary meaning of "horticulture" (at least in relation to the applicant's activities) should not be surprising. As the High Court said in Collector v Agfa-Gevaert (at 67) "[t]rade meaning and ordinary meaning do not necessarily stand at opposite extremities of the interpretive register".

The Logic of the AAT's Reasoning

Mr Gray's attack on the logic of the AAT's analysis of the expert evidence is, in essence, an attack on its assessment of the facts. In general, the non-legal technical meaning of a word is a question of fact: Collector v Pozzolanic, at 287 and cases cited there; cf Collector v Agfa-Gevaert, at 63-65. It would seem, therefore, that Mr Gray's submissions on this point do not of themselves raise a question of law and thus cannot be entertained on an appeal under s.44 of the AAT Act: cf Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302 (FCA/FC), at 305.

In any event, even if a want of logic is sufficient to constitute an error of law, I do not think that the AAT's reasoning process was illogical. It is true that both experts accepted that a commercial grower who made his or her own potting mix would be engaged in horticulture. But Mr McMaugh specifically rejected the proposition that the commercial manufacture of potting mix was horticulture. He gave as his reason that it was necessary to consider "the activity as a total production process". In substance, the AAT adopted this view.

In doing so, the AAT did not demonstrate a lack of logic. Rather, it accepted Mr McMaugh's evidence that a distinction was to be drawn between the manufacture of potting mix as part of a total process of producing plants, and the manufacture and commercial sale of potting mix as an independent undertaking. Perhaps not all horticulturalists would accept this distinction; indeed, Mr Leake did not. But that does not mean that the distinction is illogical. Still less does it mean that the distinction lacks an evidentiary foundation.

The point is reinforced by the example of the fertiliser manufacturer, to which the AAT referred. Mr Gray acknowledged that although fertiliser was essential to horticulture, a manufacturer of fertiliser could not be said to be engaged in horticulture. He attempted to distinguish the case of the fertiliser manufacturer from that of the applicant, by pointing out that fertilisers normally comprised of chemicals, as opposed to the natural materials which make up potting mix. But it is hard to see why the composition of the manufactured product should determine the question of whether a commercial manufacturer who supplies growers is engaged in horticulture.

In my opinion, the criticism that the AAT failed to take account of specialist texts or trade dictionaries also lacks foundation. The only relevant text placed before the AAT was an extract from the Encyclopedia Britannica on the topic of horticulture. There is nothing to suggest that the AAT did not take the extract into account. Moreover, the reference in that extract to the importance of soil management in horticulture is in no way inconsistent with the finding made by the AAT. Soil management is one thing; the production of potting mix by a commercial manufacturer is another.

Purposive Interpretation

Mr Gray submitted that the AAT's emphasis on the terms of the legislation "invites a literal approach to construction". This somewhat surprising submission was accompanied by the less surprising proposition that s.164 of the Customs Act should be construed primarily by reference to the purpose of the statute. This was said to be the provision of financial assistance by way of the diesel fuel rebate to encourage the activity of horticulture.

In my opinion, the conclusion reached by the AAT pays appropriate regard to the objects of the legislation. The Amendment Act repealed paragraph (f) of the old definition, thus removing the opportunity for persons to claim a rebate simply because their activities are "connected with" horticulture. The Amendment Act replaced the so-called "sweeper clause" with specific paragraphs detailing eligible activities, most of which are those ordinarily conducted by, or on behalf of, farmers as part of their farming businesses. As the Explanatory Memorandum makes clear, one purpose of the amendments was to restrict the circumstances in which the diesel fuel rebate was payable. There is nothing in the Explanatory Memorandum to suggest that the legislative policy was simply to encourage horticulture and for that purpose to expand the scope of the statutory expression "horticulture". Nor is there anything to suggest that the distinction drawn by the AAT, between the production of potting mix by a grower for his or her own purposes and production by a commercial manufacturer of potting mix, is ill-founded. On the contrary, it seems to me consistent with the objectives sought by the Amendment Act to regard a commercial producer of potting mix as not engaged in horticulture.

Mr Gray criticised the AAT's emphasis on the "immediate involvement in fostering growth of organic substances [as] the essential element of the concept of horticulture". Care must be taken not to substitute for the statutory language an alternative formulation that is said to represent the "core" or "essence" of the statutory concept. It seems to me, however, that the approach identified by the AAT is helpful, so long as it is not understood as necessarily an exhaustive statement of the scope of the statutory language. In a future case, the application of the legislation may depend, at least in part, on evidence as to whether the trade or commercial usage of horticulture embraces the activity in question.

Conclusion

In my opinion, the application should be dismissed. The applicant should pay the respondent's costs.

I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated: 21 February, 1997

Heard: 7 February 1997

Place: Sydney

Decision: 21 February, 1997

Appearances: Mr V.R.W. Gray, instructed by Barwick Boitano Lawyers, appeared for the applicant.

Mr A. Gelbart, instructed by Australian Government Solicitor, appeared for the respondent.