Grocery Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCAFC 85

FEDERAL COURT OF AUSTRALIA

Grocery Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCAFC 85

CUSTOMS – tariff classification – meaning of the word 'pieces' in the phrase 'fish, whole or in pieces, but not minced'

Customs Tariff Act 1995 (Cth) subheadings 1604.01, 1604.14.00, 1604.20.00 of Schedule 3.

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 followed Re Gissing and Collector of Customs (1977) 14 ALR 555 referred to GROCERY HOLDINGS PTY LTD v CHIEF EXECUTIVE OFFICER OF CUSTOMS V 471 of 2003 WHITLAM, MARSHALL and FINKELSTEIN JJ 1 APRIL 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 471 of 2003

ON APPEAL FROM THE GENERAL DIVISION OF

THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: GROCERY HOLDINGS PTY LTD

APPLICANT

AND: CHIEF EXECUTIVE OFFICER OF CUSTOMS

RESPONDENT

JUDGES: WHITLAM, MARSHALL and FINKELSTEIN JJ

DATE OF ORDER: 1 APRIL 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1 The appeal is 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

VICTORIA DISTRICT REGISTRY V 471 of 2003

ON APPEAL FROM THE GENERAL DIVISION OF

THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: GROCERY HOLDINGS PTY LTD

APPLICANT

AND: CHIEF EXECUTIVE OFFICER OF CUSTOMS

RESPONDENT

JUDGES: WHITLAM, MARSHALL and FINKELSTEIN JJ

DATE: 1 APRIL 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT

WHITLAM and mARSHALL jj 1 This is an appeal from the decision of the Administrative Appeals Tribunal ('the Tribunal') in two proceedings under s 273GA(2) of the Customs Act 1901 (Cth), whereby it affirmed the demands made by the respondent for duty payable in respect of goods imported by the applicant. The goods in question were canned tuna products entered for home consumption on 16 July 2001. 2 The dispute before the Tribunal concerned the classification of the goods under the Customs Tariff Act 1995 (Cth). It was common ground that the goods were 'prepared or preserved fish' under heading 1604 in Schedule 3 to that Act. The respondent demanded payment of duty under subheading 1604.14.00 on the basis that the goods were 'Fish, whole or in pieces, but not minced'. The applicant paid the sum demanded under protest on the ground that the goods should have been classified under subheading 1604.20.00 as 'Other prepared or preserved fish'. 3 At the hearing before the Tribunal samples of the products were received in evidence. The respondent submitted that the phrase 'Fish … in pieces, but not minced' was to be construed having regard to the trade meaning of the word 'minced'. In support of such a trade meaning, the respondent adduced evidence from a food technologist and relied on the usage of the word 'minced' in official publications and a textbook on fish processing. The applicant also tendered official publications relating to 'minced' fish products. It submitted, however, that the word 'minced' in the phrase in contention should be given its ordinary English meaning. 4 In its reasons for decision the Tribunal dealt in some detail (at [8]-[23]) with the evidence on the issue of trade meaning. After then referring to dictionary definitions of the verb 'mince' and the noun 'piece' and to various authorities, it concluded (at [39]) that it was 'unable to … find that the term "minced" has a particular meaning by which it is understood in the fish trade or processing industry'. Accordingly the Tribunal proceeded to consider the ordinary meaning of the words used in the tariff classification in question and said: '40. That takes me back to the ordinary meaning of the word "mince" and also of "pieces". Given the juxtaposition of the words in sub-heading 1604.1, it seems to me that the "pieces" may be of any size provided they are not so small that they are regarded as minced. … 41. … An assessment as to the appropriate tariff item to which goods are classified necessarily involves a certain element of subjectivity even though made within objective parameters. This follows from the manner in which the task of classification is carried out. As Morling and Wilcox JJ said in Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 76 ALR 313: "… the classification of goods for tariff purposes is a practical 'wharf-side' task. It ought normally be possible to classify goods merely by looking at them and by considering their nature and the function which they were designed to serve. …" (page 328) The conclusions that a person draws from looking at them and considering their nature and function at the wharf-side may be influenced by his or her experience with or knowledge of such goods and their functions. 42. Having regard to each of the samples of products, I am satisfied that they are not "minced" but that they are "pieces" within the meaning of sub-heading 1604.1. The chunk style tuna retains its textural integrity of tuna that has been preserved. The sandwich tuna products and the flavoured tuna products comprise what may be described as flakes or shreds of tuna. For all that, each retains the textural integrity of preserved tuna. The essential characteristics of preserved tuna are still readily identifiable. None of them is chopped or ground so small that it may be described as having been "minced" in its ordinary meaning. As the products are tuna, this conclusion leads to my finding that the goods are properly classified under sub-heading 1604.14.00.' (Emphasis in original.) 5 The proper construction of subheading 1604.1 was the only question of law stated in the applicant's supplementary notice of appeal. However, in argument before us, counsel for the applicant sought to rely in support of the appeal on a ground which was neither encompassed within that question of law nor otherwise stated in the supplementary notice. They submitted that, contrary to the principles expressed in Re Gissing and Collector of Customs (1977) 14 ALR 555, the Tribunal failed to identify the goods before considering the application of the subheading. Even if the applicant were permitted to rely on such a ground, it could not possibly succeed. The identification of the goods was never in issue before the Tribunal. At the start of its reasons it identified them (at [7]) as 'tuna products in cans' comprising variously 'sandwich tuna', 'chunk tuna' or 'tuna mixed with flavourings and other ingredients such as vegetables'. Those descriptions appear to have been lifted almost verbatim from the way in which the applicant described the subject goods in its own outline of submissions to the Tribunal. The Tribunal later referred in its reasons (at [26]-[29]) to the 'two steps to be taken' under Gissing before going on to consider the construction of subheading 1604.1 and its application to those goods. The failure to repeat at this point in its reasons that earlier identification may at first glance be a little confusing, but the sequence in which the Tribunal approached its task of classification is perfectly clear. The goods were, of course, once more identified in a short-hand fashion in the Tribunal's ultimate finding in the last paragraph reproduced at [4] above. 6 On the question of law raised on the appeal, the applicant submitted that the Tribunal erred in two respects. First, it wrongly concluded that the word 'minced' in its ordinary meaning refers to pieces that are chopped or ground so small that they have lost their textural integrity. Secondly, it wrongly found that the term 'pieces' in its ordinary meaning was not limited to portions that might otherwise be described as fillets or steaks or even slices. The second ground can only be understood in the light of the submissions made by the applicant to the Tribunal. The applicant had submitted to the Tribunal that subheading 1604.1 should be interpreted 'as encompassing fish that is either imported whole or in large pieces such as fillets, steaks or slices' (emphasis supplied) and as excluding preparations of fish which may include small pieces. The submission was rejected by the Tribunal. 7 The first ground also relies on an allegation that the Tribunal's view of the ordinary meaning of the word 'minced' was arrived at by taking into account the evidence adduced as to the suggested technical meaning of that word. That allegation is not made out. It is plain enough that the Tribunal merely inspected the goods and described what it saw, namely, 'textural integrity', 'flakes' and 'shreds'. It had earlier explained (at [40]) how it proposed to reconcile the word 'pieces' with any such notion implied in the ordinary meaning of the word 'minced' used in the limiting phrase 'but not minced'. The finding (at [42]) reflects that approach. 8 Indeed, the same passage (at [40]) points up the fundamental flaw in both grounds of the applicant's attack on the Tribunal's decision. The applicant does not contend that either word in question is to be given a technical meaning. It is not necessary to set out the dictionary definitions (to which the Tribunal earlier referred in its reasons) in order to see quite clearly that the Tribunal had regard to them in forming its own view of the ordinary meaning of the two words, so carefully placed in juxtaposition, in the terms of the subheading. The conclusion arrived at by the Tribunal was reasonably open on the facts found by it in light of the words used in the subheading. That conclusion involved a question of fact: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395. 9 The appeal should be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam and Marshall.