Cray Communications Ltd v Collector of Customs [1998] FCA 122 (27 February 1998)

Last Updated: 4 March 1998

FEDERAL COURT OF AUSTRALIA

CUSTOMS - appeal from Administrative Appeals Tribunal - whether Tribunal erred in relying upon classification concepts to identify the goods subject to customs tariff - whether Tribunal failed to address the pre-requisites of Note 4, s XVI Schedule 3 of the Customs Tariff Act 1987 (Cth) - whether Tribunal erred by failing to apply Interpretation Rule 6

Customs Tariff Act 1987 (Cth), s 6, Schedule 2, Schedule 3

Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 15 FCR 449, applied

Re Gissing v Collector of Customs (1977) 14 ALR 555, applied

Collector of Customs v Savage River Mines (1988) 79 ALR 258, applied

Thomson Australian Holdings Pty Ltd v Commissioner of Taxation (1988) 20 FCR 85, applied

Liebert Corporation Australia Pty Ltd v Collector of Customs (1993) 23 AAR 287, applied

Rheem Australia Limited v Collector of Customs (NSW) (1988) 78 ALR 285, distinguished

CRAY COMMUNICATIONS LIMITED v COLLECTOR OF CUSTOMS

NG776 of 1995

MADGWICK J

SYDNEY

27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 776 of 1995

BETWEEN:	CRAY COMMUNICATIONS LIMITED Applicant
AND:	COLLECTOR OF CUSTOMS RESPONDENT
JUDGE(S):	MADGWICK J
DATE OF ORDER:	27 FEBRUARY 1998
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal will be dismissed.

2. The applicant is to pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 776 of 1995

BETWEEN:	CRAY COMMUNICATIONS LIMITED Applicant
AND:	COLLECTOR OF CUSTOMS RESPONDENT

JUDGE(S):	MADGWICK J
DATE:	27 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR: This is an appeal from the decision of the General Administrative Division of the Administrative Appeals Tribunal constituted by Senior Member Allen, Mr Coffey, and Mr Way, given on 27 September 1995. The Tribunal affirmed the decision under review of the respondent's delegate to classify certain goods to item 8517.30.00 "- Telephonic or telegraphic switching apparatus" in Schedule 3 of the (then) Customs Tariff Act 1987 (Cth) ("the Act"). The goods in question are known as "Multi-function Access and Backbone Switches series 8425 and 8525". It was the contention of the applicant before the Tribunal that the primary decision-maker should have classified the goods pursuant to item 8517.40.10 as -

"- Other apparatus, for carrier-current line systems:

---Goods, as follows:

(a) . . .

(b) multiplexors, of the time division or statistical type, being goods of a kind having operational transmission speeds of not more than 2.5 megabits/second"

Statutory framework

The Act provides for the imposition of duties of Customs on imported goods (s 21). Pursuant to s 22 the duty in respect of such goods is to be ascertained, so far as presently relevant, "by reference to the general rate set out in the third column of the tariff classification under which the goods are classified". Section 9 of the Act provides:

"A reference in this Act to the tariff classification under which goods are classified is a reference to the heading or subheading;

(a) in whose third column a rate of duty or the quota sign is set out; and

(b) under which the goods are classified."

Pursuant to s 5, "heading" means a heading in Schedule 3 of the Act and "subheading" means a subheading of a heading.

The "Harmonised System" between nations provided for by the relevant international convention made at Brussels in 1983 ("the Brussels Convention") provided for "General Rules for the Interpretation" of the System and those rules are set out in Schedule 2 of the Act. They are called the Interpretation Rules. Section 10 provides that they shall be used for ascertaining the tariff classification under which goods are classified. So far as relevant, the Interpretation Rules provide as follows:

"1. The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions:

. . .

3. When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

. . .

6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative Section and Chapter Notes also apply, unless the context otherwise requires."

One of the purposes of the Brussels Convention was to standardise the classification of goods the subject of international trade for the application of customs duties in various countries. Before one understands that (and perhaps afterwards as well), s 6 of the Act appears to be cast in somewhat Gilbertian terms, which would do Monty Python proud. In order to make sense of s 6 of the Act, it is convenient to set out the relevant extracts from Schedule 3:

"Section XVI

Machinery and mechanical appliances;

electrical equipment; parts thereof;

sound recorders and reproducers,

television image and sound recorders and reproducers,

and parts and accessories of such articles

Notes

1.- . . .

3.- Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines adapted for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.

4.- Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or Chapter 85, then the whole falls to be classified in the heading appropriate to that function.

5.- For the purposes of these Notes, "machine" means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of Chapter 84 or 85.

. . .

Chapter 85

Electrical machinery and equipment and parts thereof; ...

. . .

8517 ELECTRICAL APPARATUS FOR LINE TELEPHONY OR LINE TELEGRAPHY, INCLUDING SUCH APPARATUS FOR CARRIER-CURRENT LINE SYSTEMS:

8517.10.00 - Telephone sets 26%

DC:21%

From 11 October 1988 23%

DC:18%

From 11 October 1989 20%

DC:15%

8517.20.00 - Teleprinters 26%

DC:21%

From 11 October 1988 23%

DC:18%

From 11 October 1989 20%

DC:15%

8517.30.00 - Telephonic or telegraphic switching apparatus 26%

DC:21%

From 11 October 1988 23%

DC:18%

From 11 October 1989 20%

DC:15%

8517.40 - Other apparatus, for carrier-current line systems:

8517.40.10 - - - Goods, as follows: 2%

(a) modems, of a type using digital to analogue modulation and analogue to digital demodulation, being goods of a kind having operational transmission speeds of 300 bits/second or greater;

(b) multiplexors, of the time division or statistical type, being goods of a kind having operational transmission speeds of not more than 2.5 megabits/second

8517.40.90 - - - Other 26%

DC:21%

From 11 October 1988 23%

DC:18%

From 11 October 1989 20%

DC:15%

8517.8 - Other apparatus:

8517.81.00 - - Telephonic 26%

DC:21%

From 11 October 1988 23%

DC:18%

From 11 October 1989 20%

DC:15%

8517.82.00 - Telegraphic 26%

DC:21%

From 11 October 1988 23%

DC:18%

From 11 October 1989 20%

DC:15%

8517.90 - Parts:

8517.90.10 - - - For modems and multiplexors of 8517.40.10 2%

8517.90.90 - - - Other 26%

DC:21%

From 11 October 1988 23%

DC:18%

From 11 October 1989 20%

DC:15%"

Section 6 provides:

"6. (1) In Schedule 3:

(a) either:

(i) 4 digits in the first column; or

(ii) 8 digits in the first column not opposite to a dash or dashed in the second column;

indicate the beginning of a heading; and

(b) 5, 6, 7 or 8 digits in the first column opposite to a dash or dashes in the second column indicate the beginning of a subheading of the heading in which the digits appear.

(2) Where a subheading appears immediately before a subheading beginning with the same sequence of digits as the first-mentioned subheading followed by a digit or digits, the first-mentioned subheading shall be taken to be subdivided into the second-mentioned subheading and the other subheading, or subheadings:

(a) beginning with that sequence followed by a digit or digits; and

(b) whose second column begins with the same number of dashes as the second-mentioned subheading."

The presently relevant interpretative canons are:

(a) Classification is to be determined according to the terms of headings and the relevant Section notes.

(b) Those notes are given primacy over Rule 3 of the Interpretation Rules.

(c) Otherwise the Interpretation Rules apply.

(d) Only subheadings at the same level are comparable.

Thus, among other things, if Note 4 applies (neither party suggested that Note 3 did) then Rule 3 of the Interpretation Rules would not apply.

Technical terms - a dictionary

On the material before the Tribunal, the following meanings of relevant technical terms may be deduced:

Telegraphy essentially means, as the Tribunal found, a message transmitted by electricity. More formally, according to the evidence, it is a field of technology that transmits codes which may represent character-based, graphic or image-based information across a communications medium. (The machines in question can transmit codes across the communications medium constituting a telephonic network).

A carrier-current system is one in which information is transferred by varying the characteristics of a waveform from a known reference waveform.

Multiplexing is the combination of two or more signals into a single wave from which the original signals can be later extracted, and a multiplexor is a device that does this. A multiplexor must be given "address information" from some external source. This information, among other things, tells the multiplexor where in the "single wave" each original input signal is to be placed. It is not part of the multiplexing function to determine what these addresses are, only to act in accordance with the information given to it.

The goods in question are commonly known as "packet switching exchanges" or "packet switches". Packet switching involves breaking a flow of electronic data into manageable "packets" before sending them through a network. By this means the data packets from many sources (and going to many destinations) share the network's resources, that is the communication lines and the switching processors. That is a form of statistical multiplexing. The Tribunal found helpful the analogy of taking a letter, dividing it into several pieces, putting the pieces into separate envelopes and then sending them individually. On receipt, no doubt, the letter would be reassembled. A packet switch decides where to send packets or what action to take which can affect other packets; it also sets up calls between parties connected to a network, releases calls, and has other network responsibilities. It is comparable in function to a traditional telephone exchange. The switching processors are often called "nodes" or "packet switching exchanges" in a network using, as these machines do, the CCITT X25 standards.

Switching does not appear to have been defined in material before the Tribunal. The Macquarie Dictionary shows that, in its most general meaning (in the relevant sense of the word), a switch is a device for turning on or off or directing an electric current, or making or breaking a circuit; no doubt the participle has a corresponding meaning.

The Tribunal's decision

The fundamental difference between the parties was whether, as the respondent's witnesses said, the subject goods were rather more than multiplexors and amounted to telegraphic switching systems or whether, as the applicant's experts contended, the primary function of the equipment was multiplexing and its other capabilities were mere enhancements of that function, and not such as to make the machines anything other than multiplexors.

The Tribunal correctly stated the task of the classifier as being to identify the goods objectively and then to match this identification with a heading or subheading in Schedule 3 of the Act: see Chinese Food & Wine Supplies Pty Ltd v Collector of Customs (Vic) (1987) 72 ALR 591. The Tribunal also noted that the classification of goods for tariff purposes is a practical "wharfside" task: Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 15 FCR 449 at 463.

The Tribunal considered the terms described above and the technical evidence. It concluded (at para 25):

"From the evidence quoted above, what is clear is that the subject goods have a function over and above mere multiplexing."

Paragraphs 26 to 28 of the Tribunal's reasons consist of an excursus on the meaning of the term "telegraphic" as it appears in subheading 8517.30.00 in the context of a reference to Note 4 to s XVI. (The Tribunal had earlier stated, at para 9, that such Notes required that primacy be given to them rather than Rules 3 and 4 of the Interpretation Rules.) I shall return to this.

Then at para 29, the Tribunal further concluded:

"As stated above, the goods are more than multiplexors and they are described by the importer and witnesses as Packet Switching Exchanges. Although to carry out their functioning as Packet Switches, they must multiplex, they also direct packets and thus operate as switches. It seems to us that what gives the subject goods their essential character and purpose, is the switching function and thus the subheading appropriate to their function is that of `8517.30.00 - Telephonic or telegraphic switching apparatus'."

Accordingly, the Tribunal affirmed the decision under review.

Grounds of Appeal

It was submitted by the applicant that the Tribunal made three errors of law:

(1) It confused the questions of identifying and classifying the goods, impermissibly resorting to classification concepts to aid in the identification of goods.

(2) In purporting to apply Note 4, the Tribunal failed to address necessary pre-requisites for its application, notably whether it could be said that the machines consisted of "individual components" and whether there was a "clearly defined function covered by one of the headings".

(3) The Tribunal impermissibly compared subheadings of different levels (see Interpretation Rules, Rule 6): the Tribunal compared the first level subheading "8517.30.00 - Telephonic or telegraphic switching apparatus" with the third level subheading "8517.40.10 --- . . . multiplexors . . .".

Conclusions

General approach of the Court

The Tribunal is an administrative body and it is appropriate that its reasons should be read with an approach which is generous to it and not with an eye keenly attuned to the discernment of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2.

Supposed confusion of the identification and classification tasks

It is well established that there are two separate functions to be performed in determining whether the goods fall within any particular item of the tariff. One is to identify the goods but, as Brennan J said in Re Gissing v Collector of Customs (1977) 14 ALR 555 at 557, actually "naming them" is not essential: "Identification is concerned with goods, not descriptions of goods". The other function is to interpret and understand possibly relevant items of the tariff to determine whether any such item, properly understood, embraces the goods as identified. There is no requirement that one approach the problem of identification of the goods before that of construction of the legislation. In Collector of Customs v Savage River Mines (1988) 79 ALR 258 the Full Court said (at 265):

"The process of identification described in Re Gissing arose in a case about multi-component goods. In that context, identification does not necessarily involve description or classification of the goods. The latter is not a process logically anterior to the process of statutory construction. In so far as the Tribunal approached the problem before it as one of the construction followed by application, its approach discloses no error of reasoning".

The error which is asserted is said to have come about in this way. The Tribunal reviewed the evidence relating to the identification of the goods from paragraphs 12 to 24 inclusive and then, at para 25, drew the conclusion from such evidence that "the subject goods have a function over and above mere multiplexing". The Tribunal then, apparently taking the view that Note 4 might apply, examined the term "telegraphic" as it appears in subheading 8517.30.00, apparently for the purpose of considering whether "telegraphic switching apparatus" was a clearly defined function as contemplated by Note 4. Having determined that a telegraph would describe the system in which the subject goods will function, in paragraph 29 the Tribunal concluded that the essential character and purpose of the goods was determined by their switching function. The purpose of that finding it was said was, among other things, to determine what the goods were, as a matter of identification. Thus, it was said, classificatory concepts had been used in the identificatory process.

Had paragraph 29 immediately followed paragraph 25, so that there was not the interposition of the reference to Note 4 in paragraph 26 and the discussion of the term "telegraphic" in paras 27 and 28, it seems to me that there would have been no basis at all for the submission. Paragraph 29 is cast in ordinary, if technical, language. I mean by that that none of the terms in the paragraph is used in a context such that it has anything other than its ordinary meaning. There was ample evidence to support the findings made in paragraph 29. When the Tribunal said:

"It seems to us that what gives the subject goods their essential character and purpose, is the switching function and thus the subheading appropriate to their function is that of `8517.30.00 - Telephonic or telegraphic switching apparatus'"

it does not seem to me that the Tribunal was saying that, because "switching apparatus" was a possibly available concept, it needed to consider whether that concept identified the goods. On the contrary, the use of the word "thus" indicates that it was a consequence of the identification of the goods as having switching as their essential function that they should be classified as within item 8517.30.00.

It was further put that there was a confusion in the Tribunal's attempt to identify the goods by reference to Note 4 concepts, in that the phrase "gives to the subject goods their essential character and purpose" was said to refer to a concept taken from Interpretation Rule 3, which refers to a material or component that "gives [composite or mixed goods] their essential character".

Cases no doubt occur in which the conduct of a factual inquiry, undertaken with the use of the language of a mistaken criterion or criteria, may give rise to an error of law in the enquiry process, making invalid a conclusion based on such conduct. But this is not such a case. If one wants to know, in a "wharfside" sense, what goods are, it is a natural inquiry to ask what the goods are used for; that is, what is their function; what is their character; what is their purpose? Such concepts were treated as relevant and, indeed, usually determinative by Morling and Wilcox JJ in Times Consultants at 463.

Here it was argued for the respective parties that one or the other of two functions of the goods is that which stamps the goods with their identity. In such a case, it seems to me, it is both a practical and perfectly legitimate enquiry, whether or not Interpretation Rule 3(b) is applicable, to ask what is its essential character and purpose, and to answer that question by reference to whether either function of the goods in question is distinctive. In Thomson Australian Holdings Pty Ltd v Commissioner of Taxation (1988) 20 FCR 85, where there was no express statutory warrant so to do, Davies J held that "the task of the Court is to determine the essential character of the goods". In order to determine whether, for sales tax purposes, certain publications were "catalogues or price lists". His Honour continued:

"Essential character derives from the basic nature of the goods, from what they are, though ... function and other factors necessarily play a part" (emphasis supplied).

This passage was approved by a Full Court in Sharp Corporation of Australia v Collector of Customs (1995) 59 FCR 6 at 14, in the course of holding that in Interpretation Rule 3 (b) the words "essential character" simply carry their ordinary meaning. See also Times Consultants, supra. In Liebert Corporation Australia Pty Ltd v Collector of Customs (1993) 23 AAR 287 the Full Court, applying Times Consultants, said (at 292):

"In deciding the proper classification of this complex piece of electrical machinery the Tribunal ... was entitled to receive evidence of its nature and function."

On the evidence here, it would be quite permissible to conclude that the switching function of the goods was so distinctive. In substance, that was the approach of the Tribunal.

Further, the course of the proceedings before the Tribunal needs to be understood. The matter was presented to the Tribunal by both parties as being one in which the question of identification turned upon what seemed to be the principal function of the goods. The advocate for the applicant argued that the Interpretation Rule 3(b) concept of "essential character" was appropriate. The advocate for the respondent then pointed, however, to the Section Notes and stressed that the function of the goods was the important matter. In reply the applicant's representative then conceded the correctness of that approach, but contended that function and essential character were effectively the same. Thus, if the Tribunal was in fact adverting, in para 29 of its reasons, to the language of Interpretation Rule 3(b), this may well have been by way of no more than a courteous nod of the head, as it were, in the direction of the applicant's submission.

Failure to address necessary pre-requisites for the application of Note 4

It will be clear enough from what I have said above, in the process of summarising the Tribunal's decision, that, reading the Tribunal's reasons beneficially, I do not think it can be said that the Tribunal failed to consider whether there was a "clearly defined function covered by one of the headings"; on the contrary, such seems to have been the purpose of the examination of the term "telegraphic" in paras 26 to 28.

The same cannot be said, however, of the question whether the goods consisted of contributory "individual components". Note 4 refers to -

"individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute to a clearly defined function ..."

The bracketed words and the juxtaposition of the concepts of "components" and "function" strongly suggest that the framers of the Notes intended that "components" should refer to physical devices or objects, rather than to different operational capabilities of machines. It is by no means clear, at least without examination of the matter by the Tribunal, that the machines did consist of such physical, individual components.

If it was necessary to apply Note 4, I should therefore think that there had been an appellable error of law. However, in my view, such was unnecessary. That is because one only comes to Note 4 if, without it, a classification cannot be made. Counsel were agreed, rightly in my view, that if, upon an identification of the goods without legal error by the Tribunal, it could be considered that they fall within subheading 8517.30.00 upon a consideration of its ordinary meaning, then that is an end of the case. It is only the first of the three suggested errors of law which might be said to go to the process of identification and I have already held that there was no such error of law.

At the next conceptual stage, classification, a conclusion that the goods fall within that subheading necessarily has the result that it does not fall within subheading 8517.40.10: the choice is between what is described in 8517.30.00, and "[o]ther apparatus" of the kind described in heading 8517, which falls within 8517.40. This is not a case such as was discussed in Rheem Australia Limited v Collector of Customs (NSW) (1988) 78 ALR 285 at 294-5 and 299 by Wilcox and Burchett JJ where, by reason of statutory extensions of ordinary meanings of words (in that case, to deem a mixture of goods X and other goods all to be X), some goods might not be able to be considered as if a subheading "X" and a subheading "other than X" provided mutually exclusive alternatives.

There was ample evidence from which it might have been held that the machines fell within the description "[t]elephonic or telegraphic switching apparatus", on the ordinary meaning of those words. Further, I think that the Tribunal did so hold: that is the plain meaning of paras 25 and 29 of the Tribunal's reasons. Both parties had submitted to the Tribunal that Interpretation Rule 3 was not applicable, and the Tribunal did not expressly disavow that approach. That rule refers in para (b) to the "essential character" of composite and other like kinds of goods. Even if the Tribunal did pick up that apt phrase from Rule 3 and incorporate it into the Tribunal's own expression, "essential character and purpose", that does not deny that the Tribunal was merely testing, in a way that (as I have indicated) I regard as permissible, whether the goods fell within the plain meaning of "switching apparatus". That was a question of fact only: see e.g. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-6; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 395. Paradoxically, in my opinion, the Tribunal's apparent misreading of Note 4 served to fasten its attention, in substance, on the correct inquiry.

Comparing unlike levels of headings

Likewise, it appears (although it is less clear to me, on re-reading the whole of the Tribunal's reasons, that an affirmative conclusion to this effect should be reached) that the Tribunal may have overlooked Interpretation Rule 6: "...only subheadings at the same level are comparable". Attention may have been entirely focussed on whether the machines were "switching apparatus" or "multiplexors" - see subheadings "8517.30.00 -" and "8517.40.10 ---", which of course was the factual alternative practically presented by the parties, instead of on the legally requisite question, whether they were "switching apparatus" or "[o]ther apparatus" (comparing subheadings "8517.30.00 -" and "8517.40 -").

Likewise, also, that might well amount to an appellable error of law, were it not that it seems to me that, even if the Tribunal impermissibly asked whether the machines were to be classified as switching apparatus or multiplexors, the Tribunal also, necessarily and implicitly, asked: do the machines fall within the description "switching apparatus" or do they fall elsewhere? Here, there was nothing the machines might be called, in ordinary language, other than, on the one hand, a species of switching apparatus or, on the other, multiplexors. Hence there was necessarily a finding by the Tribunal, without regard to comparison of subheadings at any level, that the goods should be classified within item 8517.30.00. Thus the Tribunal's classification in this case was, in my opinion, legally unobjectionable, even if, technically, the Tribunal expressly asked itself the wrong question.

Another way of looking at the matter is that, on the view the Tribunal took of the facts, had it expressly asked itself the correct question, it could not possibly have come to any other conclusion, so that any intervention by this Court would be futile, c.f. Stead v GIO [1986] HCA 54; (1986) 161 CLR 141 at 145. I would see no justification for, in effect, ordering a retrial of the purely factual matters.

As I think that a finding was made which does not call for appellate intervention, it is not necessary to consider to finality whether the Tribunal should be held to have actually made the alleged error.

Orders

1. The appeal will be dismissed.

2. The applicant is to pay the respondent's costs.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:

Counsel for the Applicant:	S Gageler
Solicitor for the Applicant:	R Turner
Counsel for the Respondent:	J Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 February 1998
Date of Judgment:	27 February 1998