Markell v Wollaston [1906] HCA 91; (1906) 4 CLR 141 (7 August 1906)

HIGH COURT OF AUSTRALIA

H C of A

7 August 1906

Griffith C.J. and O'Connor J.

Langer Owen K.C. and Windeyer, for the plaintiffs.

Blacket, for the defendants.

Langer Owen in reply.

Aug. 7

Griffith C.J.

This action was brought by the plaintiffs against the Comptroller of Customs for the Commonwealth, asking for a declaration that an article known as "Tanglefoot Sticky Flypaper" is entitled to be admitted to the Commonwealth duty free, as an insecticide. The plaintiffs also asked for an injunction restraining the defendants, that is to say Dr. Wollaston, the Comptroller, and the Commonwealth, from detaining any future importations of the article until payment of duty. They also claimed a return of the duty paid by them in respect of a certain importation of these articles, that duty having been paid by them under protest. So far as the claim for a declaration of the rights of the plaintiffs to import the article is concerned, that does not seem to be a matter worthy of very serious consideration, because if the Court is of opinion that the plaintiffs are entitled to recover the duty already paid because the goods are not dutiable, the expression of that opinion is itself a declaration of the right of the plaintiffs. For, though it is in theory merely an order for the recovery of the duty already paid, it is in fact, accompanied by a declaration of the right of the plaintiffs to have the article imported free of duty. The substantial matter for consideration, therefore, is whether this article is dutiable or not.

It has been agreed by the parties that no objection is to be taken to the form or constitution of the action. It ought perhaps to have been brought against the Comptroller of Customs for the State. But no objection of that kind is to be taken.

The special case stated for the opinion of the Court sets out these facts:?"The said article consists of thin sheets of Manilla paper coated on one side with an adhesive sticky substance composed of three parts resin and one part castor oil. The said article is used for the purpose of catching flies and other insects. The said insects are entangled by the said sticky substance and are unable to escape and the result is their death, but it is not known whether death is caused by toxic or mechanical agency."

The plaintiffs contend that that description brings the article within the meaning of the term "insecticide" used in item 104 of the Customs Tariff. The contention for the defendants is that the article is not an insecticide, but a "manufacture of paper not elsewhere included," or alternately "paper not elsewhere included," within the meaning of those terms as used in items 122 and 123 of the Customs Tariff, and, further, that, if it is an insecticide under item 104, it is also a manufacture of paper not elsewhere included, and therefore liable to duty under section 138 of the Customs Act 1901.

It was agreed that specimens of the article should be produced in Court, and by the Rules of Court the Court is entitled to draw all necessary inferences of fact from the facts admitted.

The first question is whether this article is an insecticide. There is no evidence that that term has acquired any special commercial meaning, and therefore we must interpret it as an ordinary English word used in a Statute. Reference of course may be made to the context, but subject to that, we must be guided solely by our knowledge of the English language. The word is used in item 104 in describing a group of articles under the general heading Drugs and Chemicals. The other items under that heading are: 100, which enumerates certain acids; 101, acids; 102, carbonate of ammonia and carbide of calcium; 103, drugs and chemicals. Then comes 104, the item in question, "insecticides, sheep-washes and disinfectants, not elsewhere included including coal-tar preparations for such purposes." Item 105 relates to medicines, a number of which are enumerated, amongst them, medical oils, of which, I suppose, castor oil is one. Item 106 is opium. The inference to be drawn from that context is that insecticide is something that ordinarily falls under the general heading of chemicals. That is all the assistance to be obtained from the context beyond our general knowledge of the language. In my opinion, the term insecticide, as commonly used in English, means, or at any rate includes, any preparation in the nature of a drug or chemical adapted solely or mainly to the destruction of insect life, and the effect of which is produced either by immediate contact with the insect or by some influence fatal to insect life inherent in or emanating from the preparation. That definition covers all insecticides of which I have ever heard. I do not think it necessary to give reasons for the different phrases in that definition.

The next question is, is this such a preparation? I think that it clearly is. The mixture of oil and resin is what gives it the character of an insecticide. It is clear that an article of that kind must have some vehicle, that is to say, some means by which it may be brought in contact with the insect so as to have its intended effect. Then the question is, in this instance, is the paper on which the preparation is smeared a substantial part of the article, or is it merely the vehicle for enabling the insecticide to be used? The question may be put in another way. Ought the paper on which the preparation is smeared to be regarded as the principal in the article or as a mere accessory? As to that I draw this inference of fact from seeing the article and from the description given of it in the special case?that the quality of paper is merged in the quality of insecticide. I think, therefore, that it is an insecticide within the meaning of item 104 of the tariff.

The defendants however contend that, even if so, it falls within the meaning of items 122 and 123, and that by virtue of sec. 138 of the Customs Act 1901 it is dutiable although it is an insecticide. That section provides that:?"If any goods enumerated in the Tariff are or can be classed under two or more names headings or descriptions with a resulting difference as to duty duty shall be charged when it is a difference between liability to or freedom from duty" &c. In order that that section may apply the goods in question must be capable of being brought under two or more headings. The section has no application where the goods are excluded from a class by the words "not elsewhere included." Item 122 (H) is paper "not elsewhere included." If, therefore, insecticides are elsewhere mentioned in a class, they are excluded from that item, and they are not dutiable, inasmuch as they are excluded from the one by reason of their being included in the other. Sec. 138 therefore has no application. This article cannot be called paper not elsewhere included. The same argument applies to the contention that this is a manufacture of paper and therefore liable to duty even if it is elsewhere included as an insecticide. So, in my opinion, that argument fails. The result, in my opinion, is that the article ought to be admitted free of duty, and, according to the agreement between the parties, there should be judgment for the plaintiffs for the amount of duty paid with interest at 5 per cent.

I should like to add that I am very much disposed to think that, even if this is not an insecticide, the quality of paper is so far merged in the completed article that it could not properly be called a manufacture of paper, or paper not elsewhere included.

Judgment will be for the plaintiffs. The declaration asked for is not necessary, and as to the claim for an injunction, it is not necessary to express any opinion.

O'Connor J.

In this case the Customs authorities claimed to be paid duty at the rate of 25 per cent. on the article in question, and the plaintiffs resisted the claim. In reference to the dispute both parties availed themselves of the provisions of sec. 167 of the Customs Act 1901. Under that section the duty charged and paid or deposited with the Customs is deemed to be the proper duty unless the contrary is shown in an action brought by the importer. This action was brought for the determination by the Court of the question whether the amount of duty deposited was the duty properly chargeable. The importer takes up the position that the substance is an insecticide, free of duty under item 104 of the Customs Tariff. The case turns on the question whether it is an insecticide within the meaning of that item. If it is, it cannot be classed under any item of the Tariff except insecticide, and the provisions of sec. 138 cannot be applied.

As to whether it could or could not be charged as a manufacture of paper "not elsewhere included," I do not think it necessary to express an opinion. It may very well be that the paper has lost its quality of paper and become part of a new preparation, insecticide. On the other hand, if it is not free as an insecticide, it may be that the mere smearing of the mixture on the paper does not destroy its properties as paper to such an extent as to render it no longer capable of being described as paper. As to these matters it is not necessary to express an opinion. The case, as I have said, really turns on whether the substance is an insecticide within the meaning of item 104. The general rule of interpretation is that words used in a Statute must be taken to have been used in their ordinary meaning. If it is contended that there is a commercial or other special meaning of the word, there must be evidence before the Court on which it can come to the conclusion that the word is so used, and then it is for the Court to determine whether the legislature has used the word in its ordinary signification or in the special sense. If any authority for that proposition were necessary, it is to be found in one of the judgments cited by Mr. Windeyer, Seeberger v. Schlesinger[1] :?"The commercial designation of an article, however, is not a matter of which Courts can take judicial notice, but is a fact to be proved like any other?by evidence." Mr. Blacket's contention therefore has no foundation, because there is no evidence here that any special commercial meaning attached to the word "insecticide." We must therefore ascertain the ordinary meaning of the word. Now the ordinary meaning of the word "insecticide," is shortly stated in Murray's Dictionary, which was read to us in the course of the argument, as "a preparation used for the destruction of insects." The generality of that description must of course be cut down by the context in which the word occurs in the Statute. As it occurs there amongst a series of items imposing duties on drugs and chemicals it is clear that the kind of insecticide intended to be made free is an insecticide composed of drugs or a combination of drugs and chemicals. There is another limitation which must be gathered from the context, and that is that the main use and purpose of the mixture or combination of substances must be the killing of insects. There are many chemicals applied to a variety of purposes which may also be used as insecticide. If insect destruction is only one out of many uses of a chemical substance, it would not come within the meaning of item 104. To get the benefit of that exemption a substance must have been prepared for that purpose, and the main use of it must be for that purpose. I, therefore, entirely concur in the definition stated by my learned brother the Chief Justice in his judgment. Such being the definition of an insecticide under item 104, we must apply it to the substance in question. It is a mixture of drugs spread upon paper. It is necessary for the effective use of those drugs that they should be spread upon paper or some like substance. The drugs and the paper constitute the insecticide. The preparation so composed kills insects in some way, whether by poisoning or by imprisoning and strangling them is not known. It appears to me to be quite immaterial how it operates, if the general effect of the combination is that it destroys insects. Mr. Blacket admits that if the combination destroyed insects by poisoning them it would be an insecticide within the meaning of item 104, but he argues that there is implied in that item a limitation beyond those that I have mentioned, that is, that the drug or chemical must kill by poisoning, as distinct from mechanical means. I entirely fail to see any ground upon which a distinction can be drawn between killing insects by poison and killing them by mechanical means. If Mr. Blacket could establish that distinction he would, of course, have gone a long way towards maintaining his argument. But I see no reason why the ordinary meaning of the word "insecticide" should be restricted as Mr. Blacket contends. Therefore it appears to me that this substance spread upon paper, being a combination of drugs and chemicals, prepared specially for the purpose of killing insects, is an insecticide within the meaning of item 104. The article, therefore, being under that item, is free, the duty was not properly charged, and it follows that the plaintiffs are entitled to recover the amount claimed in the action.

I also agree that it is not necessary that our order should go further than that decision. The law, as expounded by the Courts, is as binding on the Government as if it had been expressed in so many words in the Tariff itself. We have no reason to suppose that the law as laid down by this Court will be disregarded, and therefore there is no necessity for any further declaration as to the rights of the plaintiffs.

I agree that judgment should be entered for the plaintiffs for the amount of duty paid with interest.

Judgment for the plaintiffs for £78 15s. 4d. with interest at 5 per cent. and the costs of the action.

Solicitors, for the plaintiffs, MacLachlan & Murray.

Solicitors, for defendants, Macnamara & Smith for The Crown Solicitor for the Commonwealth.

1. [1894] USSC 129; 152 U.S., 581, at p. 585.