FEDERAL COURT OF AUSTRALIA Lindsay Transport Pty Ltd v Commissioner of Taxation [2006] FCA 822 SALES TAX – whether qualification for exemption on acquisition of three connected goods in operation in unison for purpose of refrigeration in course of transport by road by way of towage by prime mover – whether used mainly in carryingout manufacture-related activity – whether manufacture-related activity mainly carried out – whether exemption as general purpose road vehicle – interpretation of statutory sales tax exemption and classification provisions Sales Tax Assessment Act 1992 (Cth) ss 4 (definition of manufacture), 51 and 83, credit ground 2A of Table 3 Sales Tax (Exemptions and Classifications) Act 1992 (Cth) ss 3 (definitions), 4, 5, 9, 12 and 13; Items 2, 18, 36 and 38 of Schedule 1; Explanatory Memorandum Acts Interpretation Act 1901 (Cth) s 15AD State Electricity Commission of Victoria v Commissioner of Taxation (1999) 96 FCR 22 cited Commissioner of Taxation v Reynolds Australia Alumina Ltd (1986) 18 FCR 29 cited Commissioner of Taxation v Sherwood Overseas Pty Ltd (1985) 75 FLR 474 cited Federal Commissioner of Taxation v Kentucky Fried Chicken Pty Ltd (1988) 12 NSWLR 643 cited Dick Smith Electronics Pty Ltd v Federal Commissioner of Taxation 97 ATC 5089 considered Downland Publications Ltd v Deputy Commissioner of Taxation (1983) 57 ALJR 286 cited Rotary Offset Press Pty Ltd v Deputy Federal Commissioner of Taxation (1972) 46 ALJR 609 cited ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (1987) 87 ATC 5110 cited Davis v Deputy Federal Commissioner of Taxation 2000 ATC 4201 referred to Holland v Jones (1917) 23 CLR 149 cited Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460 cited Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 33 ALR 251 cited Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (Full Court) (1981) 37 ALR 595 considered Davies Coop and Company Limited v Federal Commissioner of Taxation (1948) 77 CLR 299 considered Deputy Commissioner of Taxation v Australian Safeway Stores Pty Ltd 85 ATC 4276 distinguished ICI Chemicals & Polymers Ltd v The Lubrizol Corporation Inc (2000) 106 FCR 214 cited The Queensland Cement and Lime Co Ltd v Deputy Federal Commissioner of Taxation (1986)86 ATC 4771 considered Ranicar v Frigmobile Pty Ltd and Royal Insurance Australia Ltd (1983) TasR 113 cited Federal Commissioner of Taxation v Rochester (1934) 50 CLR 225 distinguished LINDSAY TRANSPORT PTY LTD (formerly LINDSAY BROTHERS TRANSPORT PTY LTD) v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA NSD 1279 OF 2005 CONTI J 30 JUNE 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1279 OF 2005 ON APPEAL FROM A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: LINDSAY TRANSPORT PTY LTD (formerly LINDSAY BROTHERS TRANSPORT PTY LTD) APPLICANT AND: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: CONTI J DATE OF ORDER: 30 JUNE 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application of Lindsay Transport Pty Ltd by way of appeal from the decision of the Administrative Appeals Tribunal delivered on 6 July 2005 be granted. 2. The Commissioner of Taxation pay the costs of Lindsay Transport Pty Ltd of the application to this Court. 3. The proceedings be remitted to the Tribunal for resolution of such further issues (if any) as may remain outstanding as to passing on of the sales tax purportedly imposed by the Commissioner. 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 NSD 1279 OF 2005 ON APPEAL FROM A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: LINDSAY TRANSPORT PTY LTD (formerly LINDSAY BROTHERS TRANSPORT PTY LTD) APPLICANT AND: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: CONTI J DATE: 30 JUNE 2006 PLACE: SYDNEY REASONS FOR JUDGMENT Aspects of the legislative scheme arising for consideration and the issues the subject of the appeal 1 This is an application by way of appeal from the decision of the Administrative Appeals Tribunal constituted by Deputy President Julian Block made on 6 July 2005, whereby the Tribunal affirmed the decision of the Commissioner of Taxation made on 13 April 2000 to disallow the claim made by Lindsay Transport Pty Ltd ('Lindsay') for credits aggregating $23,672 under section 51 and Credit Ground 2A in Table 3 of Schedule 1 (headed Tables),to the Sales Tax Assessment Act 1992 (Cth) ('the Tax Act'). Section 51 is headed Credit entitlements and Table 3 of Schedule 1 is headed Credit grounds. The Tax Act is to be considered in the present case in the light, in particular, of the Sales Tax (Exemptions and Classifications) Act 1992 (Cth) ('the STEC Act'), which contains in Schedule 1 thereto descriptions of the Exemption items, subject in certain specified circumstances to exceptions in turn to those Exemption items. It is the operation of that Schedule 1 in relation to Items the subject of Chapter 1 of Schedule 1 of the STEC Act that gives rise to the present complex controversies; part of that complexity is occasioned by stipulations as to what may be described as exceptions otherwise to the sales tax exemptions. The appeal arises purportedly pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) by way of application for review of the Tribunal's decision. 2 Subsection 51(1), which appears in Part 4 of the Tax Act headed Credits, stipulates that 'Table 3 sets out the situations in which a claimant is entitled to a credit' in respect of sales tax. Credit Ground 2A, appearing in Table 3 of Schedule 1 headed Credit Grounds, is in the following terms (the reference below to the statutory abbreviation AOU meaning 'application to own use'): 'Table 3: Credit grounds [1] No. [2] Summary of [3] Details of ground [4] Amount of [5] Time credit ground credit arises CR2A Claimant has borne Claimant has borne tax The tax borne, to the time of the tax, even though on a tax-bearing dealing extent that the tax-bearing entitled to quote for which the claimant claimant has not dealing' exemption declaration was entitled to quote an passed it on exemption declaration (whether or not the claimant quoted). Claimant has not sold the goods. If claimant has applied the goods to own use, the AOU would not have been taxable assuming it were an assessable dealing. 3 Lindsay has been at all material times a specialised road haulier engaged in the cartage of products of manufacturers and primary producers, and in that context has been the owner of certain road haulier plant or equipment used for the carriage of freight in the course of transportation by road, described by the Commissioner uncontroversially as 'temperature sensitive freight'. Lindsay seeks recognition as an exemption user as defined in section 3 of the STEC Act, being '… in relation to an exemption Item… the person whose use of the exemption goods is relevant in deciding whether the exemption Item applies'. An exemption Item is defined also in s 3 to mean 'an Item or subitem in Schedule 1'. Lindsayhas not manufactured goods of present relevance, nor has Lindsay contracted to carry out any manufacturing in any traditional sense. The subject carriage plant or equipment falls within the definition of goods provided in s 5 of the Tax Act, and thus the present litigation is concerned with goods comprising each of the three controversial items of plant or equipment described in [7] below. The parties adopted the usage of 'relevant goods' for those three items of plant, and I will do likewise in these reasons. Each of the relevant goods was the subject of disputed imposition of sales tax. 4 Perhaps a convenient starting point for a description of the complex issues arising is s 83(1) of the Tax Act, which provides relevantly as follows: 'An unregistered person ("the quoter") may quote an exemption declaration for a dealing with goods if, at the time of quoting, the quoter has the intention of dealing with the goods in any of the following ways: (a) using the goods so as to satisfy an exemption Item that is in force at the time of quoting; … .' Lindsay was at all material times unregistered under the Tax Act. 5 Lindsay's statement of issues filed in this Court on 18 November 2005 for the purpose of the present appeal stipulated that its entitlement to quote an exemption declaration under s 83(1) on the purchase of the relevant goods involved the following so-called elements of potential fiscal significance falling for resolution, the reference to relevant goodsbeing (as explained above) to each of the three items of plant described in [7] below: (i) did Lindsay purchase the relevant goods with the intention of using them so as to satisfy any one of the preceding exemption items identified in Item 36 headed Subcontractors of the abovementioned Schedule 1 to the STEC Act and consequently fulfil the exemption process for an unregistered person set out in s 83 of the Tax Act? (ii) if the relevant goods so owned by Lindsay had been used by Lindsay's clients or principals in carrying out the same carriage activities at the same time as Lindsay conducted in its capacity as a carrier, would the relevant goods have been used 'mainly in carrying out a manufacture-related activity' (SubItems 18(1) and 36(2) of Schedule 1 to the STEC Act)? (iii) in determining whether a manufacture-related activity (see definition of manufacture, being a non-exclusively defined expression which extends to production, and hence to primary production which is not discretely defined) is involved, can it be established that the use of the relevant goods involved 'applying a process or treatment to goods for the purpose of bringing them into, or keeping them in, the form or condition in which they are to be marketed or used by a person', being a person 'who is the manufacturer of the goods' (subItem 18(5)(c)) of Schedule 1 to the STEC Act)? (iv) were any of the relevant goods excluded from sales tax exemption by subItem 18(3)(b) as a general-purpose road vehicle? (v) were any of the relevant transported goods excluded from exemption by s 13(1) of the STEC Act (headed Lower level of operation of excluded property) as having a use which was subordinate and related directly to a general-purpose road vehicle within the abovementioned subItem 18(3)(b)? The foregoing issues constituted a more confined case than that more broadly presented by Lindsay to the Tribunal. The material requirements of Items 18 and 36 of Schedule 1 to the STEC Act, as well as the text of the abovementioned ss 13 and 83 of the STEC Act and Tax Act respectively, are later reproduced in these reasons in the course of my description of the issues arising on the appeal. A discussion and resolution of those issues is inherently difficult to present in an appropriately sequential way. 6 Lindsay did not pursue on the appeal reliance upon Item 2 of Schedule 1 headed Primary production activities [R] as a basis for exemption, and I have accordingly not reproduced the same. The Commissioner nevertheless made complaint as to an absence of sufficient notification given by Lindsay prior to the hearing of the appeal that reliance upon Item 2 would no longer be pursued, given the invocation of Item 2 advanced in the notice of appeal to the Federal Court and at least formally pursued until shortly prior to the hearing of the appeal. The discarding of reliance upon Item 2 as an independent basis for challenge on Lindsay's part needs to be kept in mind when reading the reasons for decision of the Tribunal below. 7 The overarching question of law asserted by Lindsay to arise on the appeal is whether Lindsay was entitled to quote an exemption declaration under subsection 83(1) of the Tax Act (s 83 being headed Standard grounds for quoting exemption declaration)on its purchase of each of the following goods: (i) a Thermo King Refrigeration Unit purchased by Lindsay on 11 May 1998 ('the refrigeration unit'); This unit is referred to in the evidence as the 'Thermo King' and was fitted either to a so-called rigid body or a so-called reefer to produce cool air which is circulated within the rigid body or the reefer; (ii) a Maxi-Cube Chiller Rigid Body purchased by Lindsay on 19 August 1997 ('the rigid body'); This unit comprised an insulated body or box, which did not have its own mainframe, axles or wheels; it was fitted with a refrigeration unit and then mounted onto the runners of a cab-chassis and secured by 6 U-bolts and 2 fish plates; (iii) a Rear B-Double Reefer Pantechnicon purchased by Lindsay on 11 December 1997 ('the reefer'); This unit was an insulated trailer or van and comprised an insulated box bolted or welded to a mainframe which incorporated the suspension, king pins, axles, brakes, wheels and landing legs. As I have already mentioned, each of those three pieces of equipment (to adopt a neutral expression) comprise the expression the relevant goods hereafter adopted for description in these reasons. 8 None of the relevant goods comprised self-propelled motor vehicles, the same being connected to a prime mover or cab-chassis for the purpose of transportation. Lindsay paid sales tax in relation to the relevant goods at the times of purchase, which was said to be in 1997 and 1998, and apparently did not purport to quote an exemption declaration. The Commissioner refuted the contention of Lindsay that a question of law arose on the appeal, being a contention said by the Commissioner to be misconceived, as exemplified alone by the Commissioner's extensive resort to judicial authority bearing upon the operation of much of the Schedule 1 terminology in the context of submissions advanced concerning the nature and extent of Lindsay's business of specialised carriage of primary food produce in a frozen or chilled condition. The issue arising in each instance was whether, having regard to the asserted nature and purpose of usage by Lindsay of each of the relevant goods in combination, the same satisfied the requirements of certain exemption provisions of the Tax Act and the STEC Act, and in particular the latter, upon their true interpretation and operation. So much partly involved issues of law, contrary to the Commissioner's contention. Indeed the issues arising were of an interpretative kind or description raised in numerous sales tax authorities cited by both parties. 9 Sections 4 and 5 of the STEC Act fall within Part 3 thereof headed Rules for interpreting Schedule 1, being as foreshadowed the relevant Schedule containing the critical Exemption items falling for consideration. Subsection 4(2)(d) stipulates in particular that Schedule 1 '[i]n broad terms' has the effect inter alia that 'an intention to satisfy the requirements of an exemption Item can be a ground for quoting'. It was not disputed, to my understanding, that Lindsay held inferentially that intention at the material time or times, and I think so much should in any event be reasonably inferred. Subsection 5(1) stipulates '[w]hat the use requirement means for different Schedule 1 functions' in order that goods may qualify for exemption in favour of an exemption user within the STEC Act later reproduced. One of those use requirements, as I have just indicated, is that the ground for quoting must comprise the '[i]ntended use by the quoter during the whole of the statutory period' as at the '[t]ime of quoting'. The expression statutory period is defined by s 5 of the Tax Act in relation to goods as meaning '… the period that starts at the time when the goods are first applied to a person's own use in Australia and ends at the earliest of' three alternatives, one being 'the end of 2 years after the time of that first application to own use'. If Lindsay was entitled to quote (as it apparently purported to do) an exemption declaration pursuant to s 83(1) of the Tax Act on the purchase of the relevant goods, it would have been entitled in principle to claim a sales tax credit pursuant to s 51 of the Tax Act and Credit Ground 2A appearing in Table 3 of Schedule 1 to the Tax Act. 10 Lindsay acknowledged that it was necessary for it to satisfy each of the five issues the subject of its statement of issues I have recorded in [5] above in order to succeed on the appeal, that is to say, to satisfy in the affirmative those numbered (i), (ii) and (iii), and to negative those numbered (iv) and (v). So much was acknowledged by Lindsay to depend at least upon whether Lindsay intended, at the time of purchase of the relevant goods, to undertake or satisfy the affirmative requirements of a manufacture-related activity specified in any one or more of thoseactivities listed in paragraph (5) of Item 18 of Sub-Chapter 1.2 (headed Manufacturing and industrial etc), which has of course already been reproduced in these reasons, since Lindsay's case ultimately boiled down to reliance upon Item 36 and its incorporation therein of reference to Item 18. That Sub-Chapter 1.2 forms part of Chapter 1 (headed Goods for use in business or industry)of Schedule 1 (headed Exemption Items)to the STEC Act. Particular reliance was placed by Lindsay on subpar (c) of that paragraph 5 of Item 18. As to the use of examples portrayed in a legislative context, my attention was drawn nevertheless to s 15AD of the Acts Interpretation Act 1901 (Cth), which states that 'the examples shall not be taken to be exhaustive, and if the example is inconsistent with the provision, the provision prevails'. 11 As already indicated in my description of the issues arising, Lindsay placed no reliance upon Item 2 headed Primary production activities [R]. Lindsay relied instead upon Item 18 as a step in establishing ultimate reliance upon Item 36 as applicable in relation to Subcontractors. Item 18 is in the following terms, so far as may be conceivably material: '(1) Goods for use by a person (the exemption user) mainly in carrying out one or more of the following activities: (a) a manufacture-related activity carried out by the exemption user in the course of a business; (b) an activity that is ancillary (as defined by section 10) to one or more activities covered by paragraph (a); (c) an activity that is ancillary (as defined by section 10) to one or more activities covered by paragraph (b). (2) Eligible raw materials and parts (as defined by section 11) in relation to activities covered by subitem (1). (3) This Item does not cover: … (b) a general-purpose road vehicle, unless it is for use exclusively: (i) within premises controlled by the exemption user and used by the exemption user mainly in carrying out one or more activities covered by subitem (1); or (ii) in going between adjacent premises covered by subparagraph (i); or (iii) for a combination of both; and is not for use, to any extent, in any part of premises described in subparagraph (i) that is used, or for use, mainly in connection with a township, accommodation complex or similar place; … (5) In this Item: goods/equipment means goods, or machinery, implements or apparatus. Manufacture-related activity means: (a) applying a process or treatment to goods that are to be used as raw materials for other goods to be manufactured by the exemption user or anyone else; [For example, purifying chemicals that are to be used in manufacturing cosmetics] (b) applying a process or treatment to goods so that the goods, or an essential element of the goods, become an integral part of other goods that are being manufactured by the exemption user or anyone else; [For example, applying a moulding process to plastic in order to make plastic door knobs] (c) applying a process or treatment to goods for the purpose of bringing them into, or keeping them in, the form or condition in which they are to be marketed or used by a person: (i) who is the manufacturer of the goods; or (ii) in relation to whom the goods are wholesaler's-materials goods; or … [For example, applying a coating of grease to manufactured hand tools to prevent corrosion]. … .' As I have pointed out, Lindsay emphasised in particular the conditions of par (c) of subItem (5) above as reflective of its application of the process of refrigeration in transit of the produce transported by its adaption of the relevant goods either affixed to a cab-chassis or towed together by its prime mover. Lindsay asserted the note of purported exemplification appearing at the foot of Item 18(5)(c) above as reflective of consistency of its case on the appeal. 12 The definition of Manufacture-related activity, to the extent of pars (a), (b) and (c) as substantially extracted above, was described in the joint judgment of Heerey and Merkel JJ (with whom Carr J agreed other than to an extent not here material) in State Electricity Commission of Victoria v Commissioner of Taxation (1999) 96 FCR 22 at 29, at [24], as follows: 'Paragraphs (a), (b) and (c) of Item 18(5) of the Exemptions Act deal with a continuum. The common feature is the application of a process or treatment. Paragraph (a) is concerned with the processing of raw materials prior to the stage of manufacture, whether the processor is or is not to be the manufacturer. Paragraph (b) is concerned with the actual process of manufacture. Again the processor can be the manufacturer or someone else. Paragraph (c) is concerned with a post-manufacture stage. But the person who is to market or use the goods has to be the manufacturer. Importantly, the paragraph contains an implicit assumption that bringing goods into a marketable form or condition need not necessarily form part of the process of manufacture of such goods.' 13 The Commissioner recorded that Chapter 2 (Glossary of Terms)of the Explanatory Memorandum to the STEC Act employed the term business inputs, though the Commissioner acknowledged that such a term did not appear in that legislation, and pointed out that the Explanatory Memorandum contained the following: 'Road vehicles of a kind ordinarily used for the transport of persons or the transport or delivery of goods or other property will be excluded from the exemptions for goods for use in mining, primary production, manufacturing, printing and other businesses, unless they are for use exclusively in the exemption user's premises or in going between adjacent premises.' So much was said by the Commissioner to be reflected in the abovementioned Item 2 headed Primary production activities [R], appearingin Sub-Chapter 1.1 in turn headed Mining and primary production, and also in Item 18 headed Manufacture-related activities [R], appearing in Sub-Chapter 1.2 in turn headed Manufacturing and industrial etc. Lindsay drew attention to the exclusion provisions of subItem (3) appearing in the context of Item 18, in so far as the same is picked up by reference in Item 36 headed Subcontractors appearing in Sub-Chapter 1.5 headed Miscellaneous. I will return shortly to the critical operation of Item 36 in relation to the circumstances postulated by Lindsay as allegedly produced of the operation of Item 36 critically (and solely) in its favour. 14 It will have been noticed that each of the headings to Items 2 and 18 bore the insignia [R] at all material times, in relation to which s 9 of the STEC Act stipulated as follows: '9 Certain exemption Items available only to registered persons Goods are not covered by an exemption Item marked [R] unless the exemption user is a registered person at the time specified in the Table in section 5.' Lindsay was not a registered person at any material time, being a matter upon which the Commissioner placed reliance, but as I have already foreshadowed, Lindsay's case at least on the appeal was confined to the operation of Item 36 upon the footing of its inclusion of reference relevantly and specifically to Item 18, and upon the further basis that unlike Item 18, the heading to Item 36 was not prefixed [R]. It was that critical circumstance of legislative drafting which Lindsay contended to have been overlooked or misunderstood by the Tribunal. 15 Item 36, to the extent material, provides as follows: 'Item 36: [Subcontractors] (1) Goods (the exemption goods) for use by a person (the exemption user) mainly in carrying out one or more activities described in subitem (1) of exemption Item 1, 2, 18, 23, 28, 29, 30, 33, 34 or 35 on behalf of one or more other persons (the principals). For this subitem to apply, either the condition in subitem (2) of this Item or the conditions in subitem (3) of this Item must be met for each activity (countable activity) that is relied on to establish that this subitem applies. [the reference to Item 18 above may be observed] (2) If the exemption goods were for use by the principal concerned mainly in carrying out the countable activity at the place at which the activity is to be carried out by the exemption user, the exemption goods would (in relation to the principal) be covered by the Item in which the countable activity is referred to. (3) All the following conditions must be satisfied: (a) the countable activity is to be carried out by the exemption user on premises controlled by the exemption user; (b) the exemption goods are not for use by the exemption user mainly in connection with any business of the exemption user that involves selling goods (other than qualifying goods of the exemption user); (c) the goods would be covered by exemption Item 28 (in relation to the principal concerned) if: (i) the goods were for use by the principal mainly in carrying out the countable activity on the premises at which the activity is to be carried out by the exemption user; and (ii) those premises were controlled by the principal. (4) Subitems (2) and (3) are to be applied on the assumption that the principal concerned is registered at all relevant times. … .' 16 It may be observed, as I have foreshadowed and critically from Lindsay's perspective, the heading to Item 36 is not denoted [R]. The note to Item 36, was in the following terms: 'See also section 13, which sometimes denies exemption if the exemption goods are for use in connection with property that is expressly excluded from the relevant Item.' Nevertheless the Commissioner pointed to the circumstance, as indeed the Tribunal highlighted, that subItem 36(2) uses the expression place. In that regard, the Tribunal emphasised (at [33] of its reasons) 'That place must be in the insulated vehicle'. 17 To Item 36 may be added reference perhaps for completeness to Item 38, headed Mixed activities [R], which reads as follows: '(1) Goods (the exemption goods) for use by a person (the exemption user) mainly in carrying out 2 or more activities described in subitem(1) of exemption Item 1, 2, 18, 23, 28, 29, 30, 33, 34 or 35. For this subitem to apply, the condition in subitem (2) of this Item must be met for each activity (countable activity) that is relied on to establish that this subitem applies. (2) If the exemption goods were for use by the exemption user mainly in carrying out the countable activity, they would be covered by the Item in which the countable activity is referred to. (3) In applying the test in subitem (2), a reference in exemption Item 1, 2, 18, 23, 28, 29, 30, 33, 34 or 35 to premises used by the exemption user mainly in carrying out activities described in that Item is to be read as a reference to premises used by the exemption user mainly in carrying out one or more of the countable activities. (4) If none of the countable activities is in an exemption Item marked [R], then this Item has effect as if it were not marked [R]. … .' A footnote similar to that appearing in relation to Item 36 was added. The similarity of Item 38(3) to Item 36(1) may be noted, as well as however the addition of [R] to the heading to Item 38, though that latter aspect of course was distinguishable from the critical Item 36 here the subject of consideration. 18 In the determination of the issues of construction arising on the appeal, being issues on Lindsay's case related to the operation at least ultimately of Item 36 headed Subcontractors, it was submitted by Lindsay that a broad and beneficial approach is appropriate. I was referred in that regard to the Full Court decision in Commissioner of Taxation v Reynolds Australia Alumina Ltd and others (1986) 18 FCR 29, where Burchett J observed generally at 46, in relation to the then Item 14 and the then definition of aids to manufacture of the precursor to the present STEC Act, that 'the beneficial purpose of the legislation with which this appeal is concerned is as apparent as was that of Div 10 in the cases to which I have referred'. That case involved the exemption or otherwise of sales tax in relation to a conveyor in operation from a mine to a refinery, and in particular whether (to cite the description of Beaumont J at 35) that conveyor should be seen as 'something ancillary to the activities at the mine site and therefore part of the mining operations…'. In that latter regard his Honour expressed the need for appraisal of the character of a conveyor by the adoption of a broad perspective. Earlier in relation to an issue involving modifications appearing in the Third Schedule to that precursor legislation, Olney J (sitting as a single justice) in Commissioner of Taxation v Sherwood Overseas Pty Ltd (1985) 75 FLR 474 at 479 spoke of the need for 'a robust approach… to be taken to the construction of the Third Schedule, particularly in view of the fact that it is part of a statute imposing taxation…'. That latter dictum was subsequently cited with approval by Hope JA in Federal Commissioner of Taxation v Kentucky Fried Chicken Pty Ltd (1988) 12 NSWLR 643 at 654, in a context also of sales tax, and where his Honour observed that '[s]ales tax legislation is not intended to stultify trade and commerce but is intended to produce revenue for the government from trade or commerce'. More recently in Dick Smith Electronics Pty Ltd v Federal Commissioner of Taxation 97 ATC 5089 at 5094, Carr J (with whose reasons Foster and Tamberlin JJ agreed) endorsed what he termed the need for a 'somewhat robust approach to the problem [as] appropriate in sales tax cases',and Tamberlin J (at 5096) added that 'a presumption… should be given [to] the most natural and ordinary meaning which is appropriate in the circumstances'. In that latter regard, his Honour referred to the High Court's decision in Downland Publications Ltd v Deputy Commissioner of Taxation (1983) 57 ALJR 286, where at 288, Gibbs CJ (with the concurrence of the other four members of the High Court) spoke of the need, in the context of construing an Item of the then sales tax legislation, '… to look at its form, its contents and its use', and endorsed earlier dictum of Stephen J Rotary Offset Press Pty Ltd v Deputy Federal Commissioner of Taxation (1972) 46 ALJR 609 that 'the test properly is one of popular usage and… that the matter is entirely a question of fact to be decided upon an inspection of the document guided by common knowledge'. The Full Court decision in Dick Smith related incidentally to the present sales tax exemption legislation. The submissions of the parties presented on the present appeal and further excerpts from the legislation 19 The case of Lindsay on the appeal, similarly to that presented to the Tribunal below, was that it was entitled to make a sales tax exemption declaration on its purchase of each of the three subject items of so-called transportation or haulage plant (that is, what I have also referred to as the relevant goods), for the following reasons in outline: (i) each was purchased for use, and was in fact used, by Lindsay mainly in carrying out one or more of the activities described in subItem (1) of exemption Item 18 (headed Manufacturer related activities [R]) of Schedule 1 to the STEC Act in relation to goods pursuant to contractual arrangements with the manufacturers of those goods, and that Lindsay may be taken to have held at the material times 'an intention to satisfy the requirements of an exemption Item' within the terms of s 4(2)(d) of the STEC Act, being that exemption Item 36 headed Subcontractors, which by sub-para (1) thereof, to the extent here material, refers to '[g]oods… for use by a person mainly in carrying out one or more activities described in subitem (1) of exemption Item… 18… on behalf of one or more other persons (the principals)'; (ii) none of them was a 'general-purpose road vehicle' within subItem 3(b) of that exemption Item 18 of Schedule 1 to the STEC Act headed (as earlier indicated) Manufacture-related activities [R]; and (iii) the use of none of them related 'directly' to a 'general-purpose road vehicle' within the scope of operation of s 13 of the STEC Act headed [l]ower level operation of excluded property (section 13 will shortly be extracted to the extent material). A general-purpose road vehicle is defined by s 3(2) of the STEC Act to mean 'a road vehicle of a kind ordinarily used for the transport of persons or the transport or delivery of goods or other property'. The relevant goods as such did not in my opinion fulfil that definition of a general-purpose road vehicle. Although the reefer (in contrast to the refrigeration unit and the rigid body) was mounted on wheels for towage on roads it was not of course capable of self-propulsion. So much would place the reefer outside that statutory notion of a general-purpose road vehicle, in that it was not in my opinion 'of a kind ordinarily used for… the transport or delivery of goods or other property'. 20 Further as to Lindsay's case as to non-fulfilment of the statutory description of general-purpose road vehicle, the Commissioner drew attention nevertheless to dicta of the Full Court of the Supreme Court of Victoria in ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (1987) 87 ATC 5110, where at 5112, Gray J (with whom Kaye J agreed) said: 'The test for inclusion in this category is that one can stipulate that the primary purpose of the vehicle and its customary use is to transport goods or persons in the course of commercial activity. In applying this test, the concept of "ordinarily used for" equals "whose primary but not necessarily exclusive purpose and customary use is". I say that because in my view the expression "ordinarily used" in the present context cannot be divorced from the concept of the primary purpose for which the vehicle is intended to be used and is in fact customarily used.' The Commissioner submitted on that footing that the expression general-purpose road vehicle is sufficiently wide as to connote any type of vehicle which travels on the road, provided it is used for the transport of persons or goods, irrespective of the vehicle not being capable of self-propulsion. Even if that be so, which in my opinion must be at least doubtful, the submission does not at least readily accommodate the statutory notion of a kind ordinarily used. A consideration of each of the descriptions of the relevant goods of Lindsay, at least when addressed individually, does not satisfactorily fulfil the ordinary or usual notion of vehicle, for instance as appearing in the Oxford and Macquarie dictionaries, nor that of road vehicle, so far as concerns the refrigeration unit and the rigid body in particular. The reefer is however at least more debateable as it potentially falls within the Macquarie Dictionary (Revised Third Edition) definition of vehicle as a 'carriage on wheels'. 21 The earlier foreshadowed s 13 of the STEC Act, which is headed Lower level operation of excluded property, and upon which the Commissioner placed reliance, provides as follows (so far as is material): '(1) In deciding whether exemption Item… 18… 36… applies, the exemption user cannot rely on: (a) the use of the exemption goods, so far as the use relates directly to: (i) excluded property; or … (b) the use of other property so far as its use relates directly to: (i) excluded property; … (2) In this section: excluded property means property that is expressly excluded from the exemption Item concerned….', … The exceptions or non-inclusions thereafter set out refer to Items not here material. 22 The note to Item 36, which I have earlier substantially reproduced, makes reference of course to s 13 of the STEC Act which is not readily comprehensible in its scope of application, addressing as it does exemptions or exclusions from excluded property. Before addressing s 13, I should perhaps observe that at least no aspects of the so-called generally-excluded property, as exemplified in subss 12(2) and (3) of the STEC Act, are here relevant, referring as the same respectively do to 'motor vehicles covered by Item 1 in Schedule 5 (other than vehicles known as four-wheel drive vehicles)' or '[p]roperty… for use mainly for or in connection with the preparation or preservation of food or drink for human consumption, if the preparation or preservation takes place in: (i) a retail or catering establishment; or (ii) premises that are occupied in connection with a retail or catering establishment;…' Section 12 may therefore be put aside. 23 Given that Lindsay's submissions are sustainable in relation to the relevant goods, Lindsay became entitled to a sales tax credit pursuant to s 51 and Credit Ground CR 2A of Table 3 of Schedule 1 to the Tax Act in respect of the sales tax it has borne, to the extent to which Lindsay had not passed on the tax (as to disentitlement if tax was 'passed… on', see again column [4] to Table 3 earlier extracted). Although the Tribunal did not find it necessary to determine the issue of passing on, and understandably so, the Tribunal expressed views which may be described as tentatively favourable to Lindsay in that regard. In those circumstances, it would be necessary in any event for the proceedings to be remitted to the Tribunal for any determination of that further issue, if the Commissioner was to seek to pursue the same. 24 The customers who have retained Lindsay at the material times for the transportation of their primary (or mainly primary) products were, at least predominantly, either primary producers or manufacturers of food products. The transport services thus provided by Lindsay were undertaken for the purpose of conveying temperature sensitive goods to the places where the same were to be sold or otherwise put to a business in an unsoiled state by those primary producers or manufacturers. During the fiscal years 1995-1996 to 1998-1999, seven of Lindsay's ten principal customers were manufacturers or primary producers of temperature sensitive goods transported by Lindsay. In relation to those goods, Lindsay emphasised the extent and implications of the task essential for it to undertake as a carrier thereof in order to maintain appropriate temperatures for the various primary products at all times, from the time of collection thereof from its customers to that of discharge thereof on delivery to their ultimate destination appointed by those customers, and hence in order in the meantime to obviate deterioration and thus to maintain the same in a marketable or otherwise usable state or condition. Lindsay invoked the provisions of subItem 18(5)(c), which I have already extracted, and which contains the expression 'applying a process or treatment to goods for the purpose of bringing them into, or keeping them in, the form or condition in which they are to be marketed or used…'. 25 None of the primary facts adduced in evidence by Lindsay were in contest below, and none of Lindsay's witnesses were required for cross-examination, and the factual findings made by the Tribunal appearing in [9]-[14] of its reasons for decision were apparently undisputed. Those primary facts related to each of the three relevant goods comprising the refrigeration unit, the rigid body and the reefer. The refrigeration unit operated independently of the reefer and the prime mover, to which it was coupled or fitted when being used in connection with transportation and delivery of goods, its sole function being to refrigerate the reefer. Approximately 70 per centum of usage of the reefer, based on distance travelled, related to transportation of temperature sensitive goods under contractual arrangements with manufacturers or primary producers of those goods. So much would seemingly satisfy the notion of mainly appearing in subItems 38(1) and (3). The rigid body was used, as I have foreshadowed, in conjunction with an independently operated refrigeration unit to achieve and maintain pre-determined temperatures, and almost exclusively so from the time of collection until delivery of the primary produce pursuant to contractual arrangements made with the producers. Although the reefer comprised an insulated trailer or van, it had of course no source of propulsion of its own, and hence was required to be coupled to a prime mover in order to be used in connection with the transportation of goods. 26 Virtually from the outset of Lindsay's submissions on the present appeal to this Court, Lindsay sought to emphasise, in relation to the Tribunal's findings appearing in its reasons for decision at [31] and [70], that section 9 of the STEC Act, headed Certain exemption Items available only to registered persons and earlier extracted in these reasons, had no operation concerning the issues raised on the present appeal. Those Tribunal findings in that context were respectively as follows: '31. The Applicant is faced with an (and arguably insuperable) initial difficulty. It relies on items 2 and 18 (in conjunction with item 36). Section 9 of STEC provides that "Goods are not covered by an exemption marked [R] unless the exemption user is a registered person. Both of exemption items 2 and 18 are marked [R]. The Applicant was not registered for sales tax purposes.' '70. Section 9 of STEC is fatal to the Applicant in that items 2 and 18 are both marked [R] and as such available only to a registered person and the Applicant was not a registered person.' Item 2 (as earlier indicated) is headed Primary production activities [R] and Item 18 is headed Manufacture-related activities [R]. Lindsay acknowledged that neither of those Items could be relied upon as juridical footings per se on the appeal; Lindsay's case being that the appeal was founded ultimately on Item 36 alone (which is not of course designated [R]), even though Item 36 incorporates reference to Item 18 which is similarly designated. 27 A threshold concern of the Commissioner was that it was not 'entirely clear' from Lindsay's approach to the appeal as to whether Lindsay no longer relied upon Item 2 as an independent basis for appeal. Accordingly the Commissioner provided reasons for its support for the above Tribunal findings, notwithstanding the absence of reference at least to Item 2 in Lindsay's statement of issues filed in Court on 18 November 2005, and to which I have earlier made reference. The issue was clarified by Lindsay's contention to the effect that its case on the appeal was that subItem 36(2) was to '… be applied on the assumption that the principal concerned is registered at all relevant times', and emphasised in any event that it claimed exemption as a so-called subcontractor pursuant to Item 36, which is of course headed Subcontractors, and which incorporates reference to inter alia Item 18 concerning Manufacture-related activities upon which Lindsay critically relied (Items 18 and 36 have been of course earlier reproduced in these reasons, to the extent material). 28 The Commissioner referred to the circumstance that Lindsay conducted the business of transportation of freight as a contract carrier using road vehicles, and neither produced goods nor contracted to carry out any manufacturing function. So much was not seemingly in dispute, Lindsay's function having been relevantly to maintain the temperature of essentially primary produce in the course of transportation, and thus prior to marketing in the ordinary course by the producers thereof at the place of destination. The Commissioner drew attention to the content of the Explanatory Memorandum to the STEC Act, in so far as it employed the term business inputs, and contended that the same referred to goods, inclusive of raw materials comprising inputs to manufacture for which exemption is provided, and further that it had been the policy of the Legislature to exclude from exemption general purpose road vehicles, except where used in certain circumstances contended by the Commissioner to be not here applicable. As earlier indicated, the notion general-purpose road vehicle is defined in s 3 of the STEC Act to mean 'a road vehicle of a kind ordinarily used for the transport of persons or the transport or delivery of goods or other property'. Lindsay eschewed of course any reliance for its part upon the statutory notion of general-purpose road vehicles, and understandably so. 29 Both parties drew attention to the provisions of s 4 of the STEC Act, inclusive of par (d) of subsection (2) thereof relating to the function of Schedule 1 thereto. So far as is material, s 4 reads as follows: '4 Effect of Schedule 1 (1) Schedule 1 has effect for the purposes of those parts of the Assessment Act that refer to exemption Items. The Schedule does not by itself have the effect of exempting an assessable dealing from sales tax. (2) In broad terms, Schedule 1 has the following effects (through the Assessment Act): (a) if all the requirements of an exemption Item are satisfied at or before the time of an assessable dealing, the dealing is not taxable; … (d) an intention to satisfy the requirements of an exemption Item can be a ground for quoting; … .' References above to the Assessment Act are of course to what I have abbreviated in these reasons as the Tax Act. 30 Section 5 of the STEC Act stipulates by subsection (1) that '[s]ome exemption Items require the exemption goods to be used in a particular way or by a particular person', and in the Table thereafter set out in that section headed Use requirements for Schedule 1, there appears (inter alia) under the column heading Use requirement that the ground for quoting must be the 'intended use by the quoter [maintained] during the whole of the statutory period'. The Commissioner pointed out uncontroversially that the operation of the statutory period in the subject circumstances was required by that Table to start at the time when the goods are first applied to a person's own use in Australia (the latter expression reflecting what I have earlier identified as the statutory abbreviation AOU), and to end 2 years after the time of that first application to the person's own use. However the Commissioner contended controversially that '[i]t is to be inferred from the objective character of the relevant goods that it was [Lindsay's] intention at the time of purchase [thereof] to use the goods as part of or in conjunction with the road vehicles it used in its business of freight transport', being an intention 'borne out by the actual subsequent use made of the goods'. I was referred in that regard to the opinion expressed by Hill J in Davis v Deputy Federal Commissioner of Taxation 2000 ATC 4201 to the effect that the best evidence of purpose will ordinarily be found in the use to which the goods are in fact put by the taxpayer, a principle the applicability whereof was common ground. However that assertion of the Commissioner as to Lindsay's intention understated Lindsay's reasons for purchasing the relevant goods, namely the critical objective of maintaining the temperature, and thereby the condition, of perishable goods in transit. 31 It is appropriate at this point of recording the respective principal submissions of the parties to revert to the threshold theme of the Commissioner's case in relation to the definition contained in s 3(2) of the STEC Act of a general-purpose road vehicle, and the qualified exclusion by subsection (3) of each of Items 2 and 18 of a general-purpose road vehicle, subject to exceptions not here material. The Commissioner's contention was that the words road vehicle are '… alone… sufficiently wide to connote any type of vehicle which travels on the road provided it is used for the transport of persons or goods'. As will be seen, however, more is required to render that broad contention wholly supportable by the provisions of Schedule 1 falling for consideration in the present context. The expression 'any type of vehicle' is too imprecise as such in the context of the complexity of the STEC Act and Schedule 1 thereto. 32 The Commissioner drew further attention nevertheless to the following non-inclusive definition of parts furtherappearing in s 3(2) of the STEC Act: 'parts, in relation to road vehicles, includes: (a) bodies for those road vehicles (including insulated bodies, tank-bodies, and other bodies designed for the transport or delivery of goods or other property of particular kinds); (b) underbody hoists, and other equipment or apparatus of a kind ordinarily fitted to road vehicles for use in connection with the transport or delivery of goods or other property by those road vehicles.' The Commissioner emphasised in particular the words 'insulated bodies' and 'apparatus of a kind fitted to road vehicles for use in connection with the transport or delivery of goods… by those road vehicles', asserting that the same would cover the refrigeration unit. Whether however the definition extended to the rigid body or the reefer was not seemingly the subject of specific submission by the Commissioner. 33 The Tribunal below cited the Oxford English Dictionary meaning of vehicle as: 'A means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart, wagon, sledge, or similar contrivance.' The Commissioner asserted that the ordinary meaning of the word vehicle would of itself encompass the reefer hauled by the primer mover, which the Commissioner described as commensurate to a wagon in the above definition, and further that the definition of a general-purpose road vehicle (see again the subItem 18(3) exclusion) was of sufficiently wide compass to include insulated vans or insulated bodies, the same being described as commonplace road vehicles. So much nevertheless begs the difficult question as to the scope, in relation for instance or in particular to the present circumstances, of the s 3 defined meanings of general-purpose road vehicle and of parts, in relation to road vehicles, which of course I have earlier extracted. 34 The Commissioner's contentions were summarised to the stage I have above recorded to the effect that '[o]n any view each of the relevant goods is a functional part of a general purpose road vehicle dedicated to the transport of temperature sensitive goods', and that '[g]oods which satisfy subItems 2(1) and 18(1) will qualify for exemption as [would] parts for [these] goods by reason of subItems 2(2) and 18(2)'. In that regard the Commissioner asserted in broad summary that '[t]he only function of each of the relevant goods is for the transport of temperature sensitive goods when combined [with] or forming a part of a general purpose road vehicle'. Whether exemption Item 36 of Schedule 1 to the STEC Act was satisfied 35 The Commissioner made the threshold observations, pertaining to the operation of Item 36, that it '… is directed to providing an exemption where goods are used by a subcontractor mainly in carrying out an activity on behalf of one or more principals', and further that '[i]t is necessary to show that had the principals claimed an exemption, the goods would have been covered by the exemption Item for which a claim is made by the subcontractor'. It is the latter observation which involves the major issue of statutory interpretation and operation arising in the proceedings. As already observed, Lindsay's transportation activities were undertaken in its capacity as a contractor or subcontractor for primary producers or operators who acquire primary products for ongoing resale. By way of further threshold observation, the Commissioner emphasised what was described as the importance of construing the legislation 'to resist abstractions as to what constitutes a manufacture-related activity' which is the theme of Item 18 of Sub-Chapter 1.2 headed Manufacture-related activities [R]. Though if the Commissioner thereby inferred by the use of the expression 'abstractions' that Item 18 should be accorded greater emphasis or significance in operation than Item 36, which picks up reference to inter alia Item 18, then I have considerable misgivings as to any such approach to the construction of Item 18 in the context of what might well be seen to be qualified in operation by Item 36. It may be observed in any event that subItem 18(1) makes additional stipulations by subpars (b) and (c) thereof in relation to activities ancillary to manufacture-related activity, defined subsequently in par (a) of subItem 18(5). A further focus of Item 18 must further be, in the factual circumstances here involved, upon par (c) of subItem 18(5) concerning the application of 'a process or treatment to goods for the purpose of keeping them… in the form or condition in which they are to be marketed or used' by Lindsay's principals (ie the primary producers etc). The example given by Schedule 1 for the operation of par (c), namely 'applying a coating of grease to manufactured hand tools to prevent corrosion', is not beyond fair analogy to that effected by aspects of the functions of the relevant goods. 36 The Commissioner advanced the further contention that '[t]he central theme informing subItems 18(5)(a)-(c) concerns activities which aid manufacture by way of a process or treatment to goods, and that it was 'essential not to lose sight of the type of manufacture involved, as it will be necessary to determine whether the activities of [Lindsay], which are said to countable, form a part of that continuum', and in so doing '[t]he legislature saw fit to specifically exclude a general-purpose road vehicle from Item 18' (see subItem 1(3)(a) and subItem 2(3)(b))each of course of Schedule 1). The relevant goods do not to my mind fulfil the statutory description of a general-purpose road vehicle. Even in the case of the reefer, it was so apparently structured as to fulfil a unique, if not abnormal function, apart from its controversial absence of self-propulsion. Moreover Lindsay made clear at the outset of its submissions on the appeal (as I have earlier foreshadowed) that it placed no reliance, in relation to a claim to sales tax exemption, upon Item 2 headed Primary production activities [R], and more significantly, that its case on the appeal was confined to the exemption provisions in favour of Subcontractors the subject of Item 36, to the extent that it picked up relevantly the operation of Item 18 headed Manufacture-related activities [R], but without reliance per se on Item 18. 37 Each of the Items enumerated in subItem 36(1), inclusive of Item 18, falls within the broad Chapter 1 heading of Goods for use in business or industry, but the heading to Item 36 does not bear the suffix [R] unlike that of Item 18, albeit Item 18 is one of those Items picked up by that subItem 36(1). In relation to the operation of Item 36, Lindsay's case on the appeal was based upon Item 36, except that subItem 36(3) was asserted by Lindsay to be 'not relevant for present purposes'. In that regard, as is stipulated by subitem 36(1), it is only necessary in order for Item 36 to apply that either (but not both) of subItems 36(2) or 36(3) apply, and in either case subItem 36(4) thereafter stipulates that whichever of subItems 2 and 3 is to apply will do so 'on the assumption that the principal concerned is registered at all relevant times'. Arguably an obstacle nevertheless presents to Lindsay's case because in that subItem 36(2) refers to place and subItem 36(3) to premises, neither of which expressions are defined in s 5 of the Tax Act, nor in s 3 of the STEC Act. The meaning at least of place appearing in the Oxford and Macquarie Dictionaries refers to the notions of 'space'and 'position',whereas premises carry more the notion of realty, but all that tends to reflect the fluidity of the concepts and expressions contained in Schedule 1, or at least some of them. The Commissioner submitted rightly, but in my opinion not controversially, that subItem 36(2) '… requires the question to be asked – would the [relevant] goods be exempt if "the countable activity, [whether] primary production" or "manufacture-related activity", was carried out by "the principal" (ie the grower/primary producer) at the "place" [ie in Lindsay's insulated bodies] where "the exemption user" [ie Lindsay] carried out the activity'. To that issue so framed by the Commissioner needs to be added for completeness reference to the preceding words 'mainly in carrying out the countable activity' where appearing in subItem 36(2). The word mainly is defined in s 3(2) of the STEC Act to mean 'to the extent of more than 50%'; incidentally, the expression mainly in carrying out appears also in the preceding subItem 36(1). 38 The Tribunal expressed the view at [33] of its reasons for decision, with implicit emphasis, that 'Item 36(2)… makes it clear that in this situation the crucial question is as to whether the exemption item would apply if the relevant activity (primary production or manufacture-related activity) was carried out by the principals at the place where [Lindsay] carried out that activity', and further '[t]hat place must be in insulated vehicles'. So much was with respect correct, but the Tribunal seems to have implicitly inferred, in the context of that observation on its part, that so much constituted a basis for disqualification of Lindsay from entitlement per se from reliance upon Item 36. If my understanding in that regard be correct, it seems to me that the Tribunal was incorrect in relation to that point. As previously indicated, for reasons not apparent, subItem 36(2) uses the word place,whereas subItem 36(3) uses the word premises. A further emphasis in the appeal submissions of Lindsay was upon activity ancillary to manufacturing activity, and in particular upon the width of the components of the non-exclusive definition of manufacture appearing in s 5 of the Tax Act, which includes production and 'applying a treatment to foodstuffs as a process in preparing them for human consumption', respectively. The STEC Act does not define manufacture, but s 3(1) of the STEC Act stipulates nevertheless that '[t]erms that are used in this Act have the same meanings as in the Assessment Act, unless the contrary intention appears'. 39 Lindsay therefore submitted that 'Item 36 requires that the contractor use the exemption goods mainly in carrying out one or more activities described in… Item 18… on behalf of one or more other principals,and that if the principals had used the exemption goods in carrying out the same activities at the same place, the goods would have been covered by exemption Item 18'. Accordingly Lindsay submitted that Item 36 relating to Subcontractors duly operated to pick up exemption Item 18in favour of Lindsay as the exemption user on behalf of the principals, being the primary producer owners of the goods transported. Lindsay explained that it purchased each of the relevant goods (of course the refrigeration unit, the rigid body and the reefer) for use in its business, which it described as a refrigerated transport business, and in that regard to accommodate refrigerated temperature-sensitive goods pursuant to its contractual arrangements with primary producers and manufacturers of those products in order to prevent those primary products from spoiling, and so that the same would reach their destination in a fit state for sale or other use by the primary producers or the intended manufacturers. 40 Moreover Lindsay further submitted, more for completeness, and in the context of Item 36(1)'s incorporation of reference to Item 18, that the relevant goods did not constitute a general-purpose road vehicle within Item 18(3)(b) of Schedule 1. It is I think apparent that the submission is correct. 41 Lindsay next pointed out that if the relevant products had been transported by the manufacturers or primary producers of the temperature-sensitive goods in the manner above described, the question to which Item 36 directs attention would be whether the relevant goods, or any of them, would have been used 'mainly in carrying out one or more of the… activities' thereupon identified in Item 18(1), that is to say, a manufacture-related activity or 'an activity that is ancillary' to that activity. If the answer to that question should be in the affirmative, as Lindsay of course contended, then that use of the relevant goods 'mainly in carrying out one or more [Item 18(1)] activities' under contract with its customer manufacturers or primary producers could well attract the operation of the exemption provisions of Item 36, which as I have earlier emphasised is headed Subcontractors. 42 A primary producer was submitted by Lindsay to be for sales tax purposes a manufacturer of primary products by virtue of the definition of manufacturer appearing in s 5 of the Tax Act. In short, the meaning of manufacture is thereby defined non-exclusively to include production, and manufacturer is defined to mean, 'in relation to particular goods,… the person who (not as an employee) manufactured the goods, whether or not the person owned the materials out of which the goods were manufactured'. The width and generality of that definition of manufacture was said by Lindsay to have been inserted in part for the purpose of bringing primary production activities within the scope of manufacture for sales tax purposes; relevantly par (c) thereof specifies 'applying a treatment to foodstuffs as a process in preparing them for human consumption'. Attention was drawn by Lindsay moreover to par 5.15 of the Explanatory Memorandum to the STEC Act, which refers to primary production in the following context: '5.15 Inclusions: There will be 6 specific inclusions to the definition of manufacture: Inclusion 1: Production [paragraph (a)] Reason: This represents no change to the existing law. "Manufacture" and "production" are often used interchangeably, although production is often thought to be the wider term (eg applying to primary production). The inclusion of "production" is to remove any suggestion that there are production processes that are not within the general meaning of "manufacture".' 43 I would further point out that by subs 3(1) of the STEC Act, the defined terms therein used are stipulated to 'have the same meanings as in the [Tax] Act, unless the contrary intention appears', and consistently therewith, Schedule 1 to the STEC Act addresses by Item 2 so-called Primary production activities, though as already indicated, Lindsay eschewed any direct reliance at least upon Item 2, which nevertheless contained the following broadly framed description of such activities: '(a) a primary production activity; (b) an activity that is ancillary… to one or more activities covered by paragraph (a); (c) an activity that is ancillary… to one or more activities covered by paragraph (b).' However of course, the heading to Item 2 bears the prefix [R]. 44 As I have foreshadowed, Lindsay sought on the appeal to invoke Item 18, albeit also headed Manufacture-related activities and bearing the prefix [R] within Sub-Chapter 1.2 in turn headed Manufacturing and industrial etc, though as an essential step to and component of its ultimate reliance upon Item 36 headed Subcontractors. However of course and critically to Lindsay's case, Item 36 is not, unlike Item 18, denoted [R]. The meaning of manufacture-related activities is explained by pars (a), (b) and/or (c) of subItem 18(1). With those illustrations is to be read the meaning of goods, defined in s 5 of the Tax Act to mean 'any form of tangible personal property'. Reliance was placed by Lindsay upon the definition of manufacture-related activity appearing in Item 18(5), and which has been earlier extracted therefrom. Lindsay placed emphasis in particular upon that part of the subItem 18(5)(c) expression: 'keeping them in the form or condition in which they are to be marketed or used by a person'. So much in my opinion describes Lindsay's asserted manufacture-related activity undertaken and put in place in particular in relation to its relevant goods throughout the process of transportation. All that advances a favourable reflection of Lindsay's circumstances at the heart of its case. 45 Lindsay thus duly recognised that the operation of par (c) of Item 18(5) has the following elements in particular which need to be satisfied for the purpose of reliance upon Item 36 in so far as it incorporates the operation of Item 18: (i) the exemption goods must be used in applying a process or treatment to goods within par (c) of subItem 18(5), being words also used incidentally in the preceding pars (a) and (b); (ii) the process or treatment must be for the purpose of keeping the goods 'in the form or condition in which they are to be marketed or used by… the manufacturer of the goods', within sub-par (i) in particular of that par (c), or perhaps as well by a person 'in relation to whom the goods are wholesaler's-materials goods…'. 46 In that specific statutory context, Lindsay contested the following finding of the Tribunal's reasons for decision appearing at [50]: 'Item 18(5)(c)(i) refers to the form or condition of which the goods are to be marketed. There was no evidence in this context before the Tribunal; nor was there evidence before the Tribunal as to whether the products, the subject of the process or treatment are "marketed or used by a person who is the manufacturer".' Lindsay formulated three bases cumulatively for contesting that finding by the Tribunal as to an absence of evidence. 47 The first basis was that it was unnecessary to adduce evidence to the effect that it is critical to refrigerate temperature-sensitive goods in the course of being transported; so much was described by Lindsay as 'so generally known that every ordinary person may be reasonably presumed to be aware of it'.In my opinion that first asserted basis is soundly conceived on Lindsay's part. I was referred in that regard to the evidentiary principle enunciated in Holland v Jones (1917) 23 CLR 149 at 153, where Isaacs J (with whose reasons Barton ACJ concurred) said as follows: 'The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not "general" but "particular" facts… . To import knowledge of a particular fact in issue would be to import evidence in the strict sense regarding a matter as to which the Court is supposed to have no knowledge whatever of its own.' More recently in Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460, McHugh J reviewed the doctrine of judicial notice generally at 478-481, at [64]-[70], of his reasons for judgment, and in so doing cited the above dictum of Isaacs J at 478, at [64], in particular. Under the heading 'Notorious facts judicially noticed without injury' at 479, at [66], his Honour exemplified the following as '[f]acts that have been judicially noticed without inquiry…, (namely) that cancer is a major health problem in the community and, despite research, little progress has been made in controlling it; that HIV is a life-endangering disease; that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection; and that many lawyers now charge hundreds of dollars an hour for their services, that legal aid is often unavailable to litigants in tort cases and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable'. 48 The second basis was what was described by Lindsay as 'the uncontroverted and uncontroversial testimonial evidence of Mr Cooper', a driver trainer manager in the employ of Lindsay since 1988 and who had some 20 years experience in the trucking industry. His affidavit evidence included the following: 'Owing to the temperature-sensitive nature of the goods normally dealt with by Lindsay Bros, it is essential that the appropriate temperature for each kind of product be maintained at all times from the collection of the goods to their discharge on delivery at their ultimate destination. In order to maintain the appropriate temperature, the refrigeration unit of the Rigid or van must be kept running while the temperature-sensitive goods are contained in it. … In relation to the first scenario outlined in paragraph 45, the refrigeration unit in the van would need to be running from the time of collection of the temperature-sensitive goods until such time as all of the temperature-sensitive goods are ready for unloading from the van at their final destination. … In relation to vans and B-double reefers, these can be uncoupled from the prime mover to become portable refrigerators. In the situation where a wholesaler or retailer is not ready to unload the van on its arrival at the destination, the driver can uncouple the van or B-double reefer and leave it at the wholesaler's or retailer's premises with the refrigeration unit running, in order to keep the goods refrigerated until such time as the wholesaler or retailer is ready to unload the van. In this situation, a driver will return with a prime mover to collect the van or B-double reefer after it has been unloaded.' In my opinion that second asserted basis is further soundly conceived on Lindsay's part. 49 The third basis related to the need to maintain the requisite temperature for goods or products of a temperature sensitive nature, which was said by Lindsay to be normally an express written term of its contractual carriage obligations, being an obligation exemplified for instance in the Cadbury Schweppes standard form of freight services contract to which Lindsay was privy, and which contained the following stipulation: '29 CONDITION OF PRODUCTS 29.1 Condition of Products The Service Provider must ensure the Products are delivered to the Delivery Point in the same condition as they were in when received by the Service Provider save and except for changes in condition resulting from any inherent defect in the Products (but not changes in condition resulting from the method of loading, transporting or handling of the Products by the Service Provider, its employees or agent).' Moreover in annexure 2 to that particular contract, stipulation was additionally made under the subheading 'Temperature and Relative Humidity' as to maintenance of a temperature range for the preservation of sugar and chocolate confectionary in order to ensure preservation of shelf life. 50 Lindsay submitted furthermore that it was 'quite plain' that: (i) when Lindsay acquired possession of the temperature-sensitive goods, ownership thereof remained vested in the manufacturer or primary producer; (ii) the manufacturer or primary producer remunerated Lindsay for transportation of the goods as a step to getting those goods to market; and (iii) if Lindsay failed to maintain the refrigeration and preservation otherwise of the temperature-sensitive goods, the same would cease to be 'in the form or condition, in which they are to be marketed or used by a person who is the manufacturer of the goods, or in relation to whom the goods are wholesaler's-materials goods', for the purposes of Item 18(5)(c)(i) or (ii) (wholesalers-materials goods is defined in s 3(2) of the STEC Act). The evidence reflects the fulfilment by Lindsay of those respective statutory factors isolated in subpar (iii) above. 51 The further issue formulated by Lindsay remaining perhaps for resolution, concerning its fulfilment of Item 36, was whether the refrigeration of temperature-sensitive goods, such as was implemented by Lindsay in the course of its transportation activities relied upon, was indeed a process or treatment which was applied to the goods carted by Lindsay within the meaning of that description relevantly appearing in the subItem 18(5) definition of manufacture-related activity. I was referred by Lindsay appropriately to the following dictionary meanings ascribed to refrigeration: (i) as to The Macquarie Dictionary (3rd edition), being 'the process of producing low temperatures, usually throughout an appreciable volume', and 'the resulting state'; (ii) as to the Shorter Oxford English Dictionary, being 'the action of refrigerating, cooling or freezing; the process of becoming cold…, [t]he freezing of provisions for the purpose of preserving them'. 52 Lindsay drew attention furthermore to what was described as the leading authority on the meaning of the combined expression process or treatment, as appears in the context of sub-paragraph (a)(iii) of the definition of 'aids to manufacture' contained in the legislative precursor to the STEC Act, being the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), the words process or treatment appearing of course in each of pars (a), (b) and (c) of the Item 18(5) definition of manufacture-related activity. That authority is Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 33 ALR 251, which was decided by the Supreme Court of Victoria (Gobbo J) at first instance, and which decision was upheld on appeal to a Full Court (Lush, Kaye and Brooking JJ) (1981) 37 ALR 595. At first instance, Gobbo J reviewed (at 268) dictionary meanings of processing and treatment, as follows: 'Turning first to the meaning of "processing or treatment", there is nothing in the context of Item 113C to suggest that the ordinary meaning of treatment found for Item 14 should not be adopted. Treatment was there taken to mean the act of subjecting to chemical or physical action so as to bring about a change in form nature or condition. I further found that in its context such treatment had to be directed to a relevant result, namely to use or marketability. As to processing this in my view should in its context in Item 113C and Reg 4 be taken to have a different and probably wider meaning than treatment…. These meanings all suggest that a change in nature form or condition is effected. I am disposed to the view that even in processing some change must result if this procedure is to be regarded as a process.' Lindsay drew attention in particular to 'subjecting to… physical action… [and] condition',and also to 'use or marketability', appearing above, being expressions reflected explicitly or implicitly in Item 18(5)(a) to (c) within the definition of manufacture-related activity. After referring to Davies Coop and Company Limited v Federal Commissioner of Taxation (1948) 77 CLR 299, Gobbo J observed at 269 in Hamersley Iron that authority 'supports a meaning of processing that does not require that there be a change producing a commercially distinct article…', and his Honour referred to recent English authority which had 'adopted the view… that alteration of the material was not necessary to involve subjecting it to a process'. That submission was soundly conceived. 53 On the appeal in Hamersley Iron, Lush J (with whom Kaye J agreed) said at 607: 'The goods, so identified, are shown by the evidence to have been subjected to a desired change. If a chemical change is sought, the change wrought in the goods is a reduction of variability in the concentration of chemicals throughout the ore. If a change in form, nature or condition is sought, then the goods have been changed in such a way that, if they have not been made marketable, they have at least been made marketable to the better advantage of both seller and buyer. In a word, the change in the goods justifies the application of the word treatment to the mode of producing the change. If it be necessary, it should be held that in the context of item 14 chemical change is not of the essence of treatment.' And further at 607: 'Even if the decision on the meaning of "treatment" and the concept of what are the goods be rejected, the individual fragments of mineral are "processed" by the blending because they are, intentionally and usefully, re-arranged vis-ŕ-vis one another…. The Commissioner contended that a change in form or nature of the goods was required, but that is inconsistent with [certain English authority decided in 1957]…, and can be regarded as consistent with such cases as [certain further English authority decided in 1956 and 1966] only if goods the subject of the operation are regarded as a general mass of useful goods together with dirt, waste or impurities, and not the separate individual pieces intended for delivery or sale.' Establishing and maintaining a requisite low temperature to foodstuffs, in order to preserve marketability, would seemingly satisfy the present Schedule 1 (ie Item 18(5)(c)) notions above addressed in those authoritative descriptions. 54 The Commissioner sought to demonstrate, contrary to Lindsay's submissions, that the subItem 18(5) notion of process or treatment did not extend further to Lindsay's advantage, once comparison was made to the circumstances in Deputy Federal Commissioner of Taxation v Australian Safeway Stores Pty Ltd 85 ATC 4276 (Gray J), and on appeal in 86 ATC 4406 (Crockett King and Beach JJ). The Supreme Court of Victoria there held that a machine which weighed, priced and labelled trays of meat in plastic bags could not be viewed as manufacture, and hence that the weighing machine was not an aid to manufacture. However I am unable to discern sufficient analogy between the circumstances the subject of that latter authority and those circumstances here postulated by Lindsay. 55 Lindsay emphasised moreover that the dicta in Hamersley Iron (ante)occurred in the context of determining whether certain stacking equipment was used in a process or treatment for the purpose of bringing goods into a marketable or usable condition within at least subItem 18(5)(c), that is to say, in order to put the iron ore as mined into a blended and stored condition ready for shipping. SubItem 18(5) being said by Lindsay to be analogous to Item 14 of the schedule to the precursor exemption legislation to the STEC Act. Lindsay further contended that the foregoing dicta in Hamersley Iron occurred in the further context of determining whether there was at any material time a change in the form, nature or condition of the goods. In that respect, Lindsay asserted that goods cannot be maintained and changed at the same time. Lindsay submitted therefore that on the tests stated in Hamersley Iron to the extent I have recorded, where incidentally the exemption related in partto '... apparatus… for use in the mining industry in carrying out mining operations and in the treatment of the products of those operations', no change in form, nature or condition of the goods is required. The description treatment appears of course throughout each of the definitions of manufacture-related activity appearing in subItem 18(5). The foregoing was described by Lindsay as an established conclusion, fortified by the statutory language having implicitly incorporated the notion of 'keep[ing] the goods refrigerated', as postulated by Mr Cooper in his expert evidence. Lindsay submitted therefore that by prescribing a sales tax exemption for equipment used in applying a process or treatment for the purpose of keeping goods in a marketable or usable condition, the Legislature did not require that any change in form, nature or condition must necessarily occur. 56 That thesis was said by Lindsay to be supported by the example given in the STEC Act, by way of footnote to par (c) of the definition of manufacturer-related activity appearing in the context to subItem 18(5)which I have earlier extracted, and which reads '… applying a coating of grease to manufactured hand tools to prevent corrosion'. It was said by Lindsay, rightly in my opinion, that the application of a coating of grease to a hand tool would not bring about any change in the form, nature or condition of the hand tool, but rather would serve to keep the hand tool in the condition in which it would be appropriately marketed by the manufacturer. 57 The Commissioner submitted however that the reasons for decision in Hamersley Iron at first instance and on appeal did not support Lindsay's case, upon the basis that '[r]efrigeration is not a chemical change, and it is doubtful whether it would be regarded as a physical action on the goods of the sort contemplated by the definition of a manufacture-related activity within subItem 5(5)'. The difficulty for the Commissioner is that even if a chemical change is not effected by refrigeration, refrigeration must at least involve physical action. Lindsay pointed out that in Hamersley Iron, '[t]he stacker and reclaimer were machines which physically stacked, and then physically blended the iron ore to ensure homogeneity', which the Commissioner appeared to accept was sufficient to enable the Court to conclude that a process or treatment was involved. However the Commissioner contended further that 'the mere cooling of goods during transport is qualitatively different from the process under consideration in Davies', because there the winding of the yarn onto the cones and tubes was described as 'part of the process of bringing the ultimate product, namely the piece goods, into a form or condition in which they could be marketed'. The difficulty for the Commissioner flowing from any comparison of the factual circumstances in Hamersley Iron,and also in Davies,is that whilst the physical outcome of the process or treatment might be described in each case as more significant in terms of process and extent of change, the STEC notion of applying a process or treatment of goods appearing in the Item 18(5) definition of manufacture-related activity would clearly enough accommodate situations of varying degree, depending upon the nature and extent of the process or treatment the subject of application. I have not found the Commissioner's endeavours to distinguish the circumstances in Hamersley Iron (or Davies for that matter) from the present to be persuasive. 58 Lindsay further drew attention to the notion of process appearing in subItem 18(5)(c) as an aspect of the definition of manufacture-related activity, being a notion addressed in the patent case of ICI Chemicals & Polymers Ltd v Lubrizol Corporation Inc (2000) 106 FCR 214. The relevant subItem 18(5) expression is of course that of process or treatment to goods, being words of wide import and operation. In the reasons for joint judgment of the Full Court (Lee, Heerey and Lehane JJ) at [7], the following appears, upon which Lindsay placed reliance by way of illustration and analogy: 'Refrigeration involves a transfer of heat. A refrigerant is contained within what is described as a refrigeration loop. Liquid refrigerant, under pressure, is released into an evaporator, where, now under low pressure, it boils, absorbing heat from the space to be refrigerated. In the course of that process, the liquid refrigerant is entirely evaporated. It is drawn into a compressor in which it is both compressed and further heated. Thence it passes through tubing to a condenser. There, still under pressure, it loses heat through the walls of the condenser, condensing into liquid. It is then piped once more to the evaporator. The process continues so long as the compressor operates. In general terms, that is the way in which both refrigerators, domestic and industrial, and air conditioning systems (including those installed in motor vehicles) work.' The Commissioner's response was that the foregoing dicta was of no assistance to Lindsay, emanating as it did from 'a different statutory and factual context', and moreover that ICI Chemicals referred to 'refrigeration abstractly as a process or treatment to goods, and cannot assist in determining whether the process concerned was a manufacture related activity process'. I have not found that response on the Commissioner's part to be persuasive, and such as to reflect any distinction relevantly of the authorities cited by Lindsay and identified above by way of illustration. Refrigeration does involve to my mind, both conceptually and realistically, a process or treatment by way of transfer of heat of temperature (as probably reflected in ICI Chemicals above), and I therefore am of the opinion that the analogy advanced by Lindsay was soundly or sufficiently conceived. 59 The Commissioner sought assistance also from State Electricity Commission, from which I have cited earlier the passage at [24] of the reasons for decision thereof concerning the operation generally of paras (a), (b) and (c) of Item 18(5). In that case, the Electricity Commissioner as taxpayer used transformers in its business to convert voltage and current so that it could be generated for domestic or industrial consumption, and it sought declaratory relief to the effect that a manufacture-related activity was involved by its use of transformers thus to apply a process or treatment within the scope of the subject subItem 18(5) expression. A Full Federal Court (Heerey Carr and Merkel JJ) held that neither of pars (a), (b) or (c) of subItem 18(5) applied in favour of the Commission. In relation to par (c), being that the subject of particular focus in the present dispute, all members of the Full Court agreed that electricity and electrical power constituted goods within Item 18(5)(c). At 30, at [28], of the reasons for joint judgment of Heerey and Merkel JJ, the following further appears: 'In the context of the Exemptions Act, and in particular Item 18, the tangible "goods" brought into existence for sale in the present case is electrical energy. Energy is a function of power over time. That is the "Commodit[y] of commerce"… which is bought and sold. The commodity is electrical energy, rather than electric current having a particular voltage. On this view, a change in current or voltage does not result in the manufacture or production of a different commodity or different goods.' Those circumstances are materially removed from the circumstances of this present litigation. 60 The perishable goods in the form of foodstuffs here involved are to be apparently marketed by or on behalf of a manufacturer of the goods, each of them being a primary producer or manufacturer of the goods, or in relation to whom the goods are wholesaler's-materials goods within the s 3 definition of that expression, or otherwise are within the par (c)(iii) description of qualifying goods within in turn the s 3 definition of that further expression. Lindsay submitted that in the present context therefore, a 'process or treatment to goods', which has the purpose of bringing goods into and keeping goods in a marketable or usable condition, within the purport of subItem 18(5)(c), need not involve a change in the form, nature or condition of the goods the subject of scrutiny. Lindsay contended rather that it is enough that some action is applied to the goods which results in preserving their marketability or usability in the hands of the manufacturer of the goods, and additionally as here its transportation consignee Lindsay. 61 So much was contended by Lindsay moreover to be no different in principle, materially or relevantly, from the process or treatment involved in maintaining the slurry in Queensland Cement & Lime Co Ltd v Deputy Federal Commissioner of Taxation (1986) 86 ATC 4771, being a decision of the Supreme Court of Queensland, in which the following views were expressed by de Jersey J (at 4773), albeit in the context of the 1935 precursor to the STEC Act: 'I should add, with regard to a submission made on behalf of the defendant, that it would in my view be artificial to regard the conversion of limestone power to slurry, and the transporting of that slurry to Fisherman's Landing, as standing apart from the process of manufacture of the clinker. This is, of course, apart from what I have already referred to as a concession on the pleadings. As I have indicated, fairly read, the material before me suggests one continuous process of manufacture, commencing at the latest with the grinding of the limestone… … I should also record my view that the pumps were for use in the "processing or treatment" of the slurry. The defendant's submission appeared to me to involve the views first, that the transporting through the pipes was not part of the overall manufacturing process (the matter with which I have just dealt), and second, that the primary and principal use of the pumps was not in the "processing or treatment" of the slurry – being confined to its transportation to Fisherman's Landing. In my opinion, the use of the pumps to move the slurry through the pipes, and manage it at homogeneous and therefore usable consistency, did involve their use in the processing or treatment of the slurry. Clearly such use was and is the "primary and principal" use of the pumps.' 62 The Commissioner asserted that there was a difference in the present factual context between 'maintaining the slurry' and Lindsay's 'activity of refrigeration', both being descriptions framed by the Commissioner, and sought to rely on the following passage earlier in the reasons of de Jersey J also at 4773: '… more than mere transportation is involved: the pumps continue the mixing process necessary for manufacture of the clinker by ensuring the homogeneity of the mixture delivered at Fisherman's Landing…'. Of course Lindsay disputed that any such notion of mere transportation was here involved, which I think to be correct as an evidentiary proposition, and significantly to my mind, the Commissioner nevertheless acknowledged that Queensland Cement and Lime constituted 'a further example of a process falling within the continuum of manufacture'. Of course, issues of the kind here arising fall ultimately to be determined having regard to their own circumstances, as well as of course in the light of legislative stipulations of sufficient operation. 63 The Commissioner further submitted that Lindsay '… only contracted to provide freight services between two points and on any view it did not have any subjective or objective purpose to manufacture goods', and that 'its purpose in carrying out the activity of refrigeration was extraneous to any purpose warranted or contemplated under subItem 18(5)(c) that was directed to a manufacture related activity'. So much seemingly boiled down to perhaps the essence of the Commissioner's case, and was of course disputed by Lindsay as not addressing the substance of Lindsay's case founded on subItem 18(5)(c), for reasons which I have generally as well as specifically outlined already at some length. The Commissioner further asserted that '… there is no evidence as to whether the goods once unloaded, remained at the temperature of the insulated bodies or were returned to room temperature, when for example, they are placed on display in a Woolworth's store'. That latter contention hardly bore upon the significance or otherwise of the condition in which Lindsay was required to deliver the transported foodstuffs etc to their appointed destination, and in any event was not only speculative but seemingly at odds with the thrust of Lindsay's extensive evidence. 64 It was therefore submitted by Lindsay that the evidence, which I have sought thus far to summarise, sufficiently established that its refrigeration unit was used in conjunction with the reefer or rigid body (all three of course together comprising the relevant goods the subject of the proceedings) in order to control the environment in which a manufacturer's temperature-sensitive goods were to be held and maintained in the course of transit, and in order thereby to prevent those goods from spoiling or perishing and to maintain their marketable condition for the benefit of the manufacturer or other principal involved. So much was described by Lindsay as reflective of 'a paradigm case illustrating the purpose which subItem 18(5)(c) was intended to serve'. In any event, so Lindsay's submissions continued, if contrary to that submission, the subItem 18(5)(c) notion of 'process or treatment to goods for the purpose of bringing them into, or keeping them in, the form or condition in which they are to be marketed or used by a person' does require change to occur in order for goods to be subjected to a process or treatment, the in transit refrigeration process applied by Lindsay did involve a physical change to the goods subjected thereto, being a change from that prevailing at the time prior to any process or treatment by way of establishment of the requisite degree of coolness in relation to the goods. I was referred in that regard, by way of purportedly analogous exemplification, to a decision of the Supreme Court of Tasmania in Ranicar v Frigmobile Pty Ltd and Royal Insurance Australia Ltd (1983) TasR 113, where Green CJ said as follows (at 117): 'The question which remains is whether in the circumstances of this case that change in temperature amounted to damage in the scallops. In my view, it plainly did. An alteration in temperature undeniably involves a physical change to a substance and in this case that change had the effect of removing one of the primary qualities which the scallop had – their exportability. As a result, it is plain that their usefulness was impaired and their value reduced. That is not to say, of course, that in every case a change in temperature would amount to damage. It would depend upon the circumstances and the nature of the goods.' Reliance was placed by Lindsay in particular upon the implications there stated of '[a]n alteration in temperature [involving] a physical change to a substance'. The Commissioner rejoined that when a supermarket places frozen chickens in its freezer, it could not be said that it was thereby engaging in part of a manufacturing process', but the analogy is hardly compelling. Either way, arguments by way of analogy so often carry at least marginal difficulty, but I do not think that the dictum in Ranicar can be so radically rejected merely by the analogy proffered by the Commissioner. 65 For completeness, I should further record that attention was also drawn to Federal Commissioner of Taxation v Rochester (1934) 50 CLR 225, which related to precursor sales tax legislation, and where it was held that by preparing and cooking fish and chips, the defendant taxpayer had neither produced nor manufactured goods. In that earlier statutory context, manufacture was defined non-exclusively to include 'production and also the combination of parts or ingredients,… except such combination as… is customary or reasonably practical for users or customers of those articles or substances to undertake'. The statutory formula there prevailing is somewhat removed from the notion of applying a process or treatment to goods formulated in subItem 18(5). Each case must of course be considered in the light of its contextual circumstances, and that the retail example derived from Rochester was conceptually removed to my mind from that here subject to consideration. 66 Lindsay submitted in summary in relation to the Item 36 issue as follows: (i) the relevant goods were used mainly (being of course the Item 18(1) expression) in refrigerating temperature-sensitive goods; (ii) refrigeration is a process or treatment which was applied to temperature-sensitive goods (process or treatment to goods being an element in each of pars (a), (b) and (c) of the subItem 18(5) meaning of manufacture-related activity); and (iii) the refrigeration was 'for the purpose of… keeping [temperature-sensitive goods] in the form or condition in which they [were] to be marketed [or otherwise] used by… the… manufacturer of the goods', within the scope of subItem 18(5)(c). 67 Upon that footing it was concluded by Lindsay that the relevant goods were each used by Lindsay 'mainly in carrying out… a manufacture-related activity… in the course of a business' within subItem 18(1)(a) of Schedule 1 to the STEC Act, and thus involved the 'use [of] [g]oods… mainly in carrying out one or more activities described in subItem (1) of exemption Item 18… on behalf of one or more other persons (the principals)…' within subItem 36(1) of Schedule 1. As a consequence,so Lindsay further submitted, the goods qualified for sales tax exemption under subItem 36(1), provided that the condition in Item 36(2), which relates to 'use by the principal concerned mainly in carrying out the countable activity at the place at which the activity is to be carried out by the exemption user…' was satisfied. In that regard, it was Lindsay's case that subItem 36(2) 'will be satisfied as long as the relevant goods (or any of them) would be covered by subItem 18(1) and if the applicant's principalsused the goods [mainly]in carrying out thesame[countable] activities for instance the subject of Item 18, and further that 'the relevant goods will be covered by subItem 18(1) unless they are excluded either as a general-purpose road vehicle by subItem 18(3)(b) or by section 13 of the STEC Act'. I have of course earlier reproduced s 13, which is headed Lower level operation of excluded property. Item 36(1) requires for its operation that '… either the condition in subitem (2) of this Item or the conditions in subitem (3) of this Item must be met for each activity (countable activity) that is relied on to establish that this subitem applies', and in the present circumstances, subItem 36(2) uses the more conceptually apposite expression place, and subItem 36(3) uses the perhaps less apposite expression premises. Conclusions 68 The issues falling for resolution are of course complex, in relation to which both parties provided comprehensive written submissions by way of analysis of the legislation, judicial authority and the evidence tendered to the Tribunal below. In the course of presentation of the respective cases of the parties to the Federal Court, Lindsay appears to have chartered additions and modifications at least of detail to its case presented to the Tribunal below, a course which is perhaps understandable given the complexity and detail of the prospectively or conceivably relevant provisions of the STEC Act, and in particular of the extensive Schedule 1 thereto. In the context of a statutory appeal by way of review of administrative decision-making, an appellant tends to take the opportunity to vary, modify or refine the emphasis and scope of its case conducted earlier at first instance in an administrative tribunal below, and I think that the present application by way of statutory appeal has adopted that course to some extent. 69 Lindsay's contextual foundation for the relief invoked on the present appeal was of course its operations of road haulage and freight transportation which were undertaken as a subcontractor for principals whose business operations involved the production of fresh primary products, and the subsequent merchandising thereof at distant markets in that condition. In relation to the first of the five issues tendered by Lindsay for resolution on the appeal (being the issues set out in [5] of these reasons for judgment), Item 36 of Schedule 1 to the STEC Act was primarily invoked by Lindsay, and so invoked in its capacity as a transport subcontractor of those primary products. It was in relation to its capacity as a haulage subcontractor that Lindsay has sought to establish its fiscal status as an exemption user under the STEC Act, and hence within the scope more specifically of its activities in relation to exemption Items the subject of Schedule 1 to the STEC Act, and to do so in particular in respect of a countable activity within the scope of Item 36 headed Subcontractors. 70 A threshold consideration arising as to the scope of operation of Item 36 involved issues as to place as appearing in subItem 36(2), and to premises as appearing in subItem 36(3), and as to whether the apparatus comprising the relevant goods, or at least one or more of them, would be so accommodated by either or both those notions of place and premises. I have used the expression relevant goods of course by reference to the three items of personalty discretely the subject of the proceedings, being the refrigeration unit, the rigid body and the reefer. The Macquarie Dictionary (3rd edition) refers to place in terms inter alia of 'a particular portion of space', as does the New Shorter Oxford English Dictionary (published in 1993). The more difficult analysis has related to the use of the further description premises, in particular as part of the notion of premises controlled by the exemption user appearing in subItem 36(3)(a) of Schedule 1. Yet as has been seen, whilst the legislation excludes certain descriptions of road vehicles, or their use in certain places, I have been unable to identify any viable exclusion which would have operated such as to accommodate the relevant goods, or at least the refrigeration unit and rigid body, the reefer being more controversial, since it was at least fitted with wheels, though nevertheless without any means of self-propulsion. On close analysis, I have concluded that the reefer was also duly excluded from susceptibility to sales tax. 71 An initial controversy of statutory interpretation arising on the appeal stems from the circumstance that Lindsay was not 'a registered person at the time specified in the Table in section 5' of the STEC Act, as stipulated by s 9 of the STEC Act in the case of '[g]oods not covered by an exemption Item marked [R]' at the time of '[i]ntended use by the quoter during the whole of the statutory period', as stipulated relevantly by s 5. Nevertheless Lindsay contends that it carried on at all material times in the capacity of what Lindsay asserts to have been activity as a subcontractor within Item 36 in the nature of 'a manufacture-related activity… in the course of a business' appearing within the text to Item 18 headed Manufacturing and industrial etc, and specifically that manufacture-related activity the subject of subItem 18(5)(c). It was Lindsay's case that it was unnecessary for it to have been so registered in order to have qualified as an exemption user by way of a subcontractor falling within Item 36, and those provisions thereof which crystallise by virtue of activities the subject of Item 18, Lindsay having been engaged in that subcontractor activity which fell within the further scope of subItem 36(2), and which by subItem 36(4) is 'to be applied on the assumption that the principal concerned is registered at all relevant times'. The Commissioner's case was conversely that the absence of registration per se was fatal to Lindsay's claim to be an exemption user. 72 In so far as Item 36 is intended to operate in relation to '[g]oods… for use by a person… mainly in carrying out one or more activities described in subItem (1) of exemption Item… 18… on behalf of one or more persons (the principals)', that is to say, activity as a subcontractor, it is unnecessary that the subcontractor/exemption user be 'a registered person at the time specified in the Table in section 5'. That is because of the evident intention of Item 36, upon its true construction in the context of the STEC Act and Schedule 1 thereto generally, that a subcontractor undertaking activities, such as at least manufacture-related activities within Item 18, should have the benefit of the registration of its principal for the time being for whom it is engaged. In short a subcontractor in relation to the transportation of goods for its principal is intended to have the exemption benefit relevantly available to that principal. For those reasons I would respectfully disagree with the implications and consequences which the Tribunal below ascribed to the absence of any notation of the symbol [R] in relation to Item 18. I have endeavoured to set out in detail the complexity of the respective submissions of the parties which understandably I will not now repeat. It suffices to say, as I have foreshadowed in my detailed recitation and discussion of those submissions, that those of Lindsay are to be preferred, reflecting as they do my interpretation of the STEC Act and Schedule 1 thereto. 73 The evidence establishes that Lindsay did undertake 'a manufacture-related activity… in the course of a business' within the scope of operation of Item 18 and hence 'one or more activities' addressed by Item 36(1). I am unable to accept the Commissioner's case that the process of maintaining the saleable condition of the primary food products by refrigeration in the course of the transportation thereof to markets was not a manufacture-related activity within the broad sweep of that statutory notion, in so far as the definition of that defined expression in s 5(c) of the Tax Act extends. That conclusion is essentially for the reasons advanced by Lindsay. At least the refrigeration unit and the rigid body clearly qualified, in my opinion, as they constituted or involved a countable activity within the operative scope of subItem 36(1). The reefer presented more difficulty in relevant characterisation. In my opinion however, the same fell outside the scope of generally excluded property within s 12(2)(a) of the STEC Act and motor vehicles covered by Item 1 in Schedule 5 and, in particular, it also fell outside the scope of a general-purpose road vehicle within subItem 18(3)(b), again for the reasons tendered by Lindsay. Moreover I think that the preservation of food products in the manner, to the extent and for the purpose put in place by Lindsay in relation to the subject produce, satisfied the defined meaning of manufacture-related activity to the extent of subItem 18(5)(c). 74 In reaching the conclusions of the two preceding paragraphs, it will be apparent that I have accepted the substance of Lindsay's contentions which I have earlier cited and the reasons advanced in support thereof. In relation to my resolution of those issues, I have additionally borne in mind the judicially enunciated principles for interpretation of sales tax legislation to which I have reproduced. Perhaps the more difficult issue of statutory construction resides in the notions of place and premises appearing respectively in subItem 36(2) and (3). I have earlier referred to Dictionary definitions of place, which do not seem to be exclusively confined to realty. The description of premises is however more difficult to divorce from realty in the statutory contexts here appearing. Nevertheless sales taxpayers are entitled in principle to invoke the approaches to statutory construction by reference to the authorities I have already identified. Clearly a matter which troubled the Tribunal below were the statutory references to premises and their application, involving however issues which I would resolve in favour of Lindsay for the reasons I have given. 75 I have adopted the course in these reasons of expressing prospective observations, if not also opinions, upon the various and indeed numerous discrete issues of statutory and regulatory interpretation arising in the process of recounting the submissions of the parties in relation to those issues. By doing so I have endeavoured to reduce the length and complexity of these concluding reasons in relation to what are many, as well as complex, issues of regulatory interpretations raised by the parties, and in particular by the Commissioner. I will not of course repeat those observations and opinions, and the issues to which they relate; they are better understood in the context in which they arose. Perhaps I should emphasise once more however, in the context of these conclusions, that I think that the Commissioner has misconceived fundamentally the interaction between Items 18 and 36 in particular, in that for the reasons I have explained, the preferable view must be that there is not translated into the operation of Item 36 the consequence that most of the exemption items enumerated in subItem 36(1) bear in their respective contexts the designation [R]. In that regard I have applied s 9 of the STEC Act not only literally, as regards the relevantly important Item 18, but also in a way which I would see as the evidently intended scope of operation of Item 36 relating to Subcontractors, to an extent which affords the more comprehensible and more likely intended interaction of Item 36 with those of the relevant Items bearing the designation [R]. 76 In the result therefore, I would resolve the five issues set out discretely in [5] above as follows: (i) Yes, as to exemption Item 18 of Schedule 1 to the STEC Act; (ii) Yes, being the manufacture-related activity the subject of par (c) of Item 18(5) of Schedule 1; (iii) Yes; (iv) No; (v) No. 77 Accordingly I uphold the present application by way of appeal and remit the proceedings to the Tribunal to resolve the issue outstanding as to 'passing-on' of the sales tax assessed, in relation to which the Tribunal has expressed a seemingly tentative view that no such conduct should be imputed. 78 The Commissioner should in my opinion pay Lindsay's costs of the appeal. In reaching that view, I have not overlooked the matters referred to in [6] above. However the complexity of the issues requiring resolution substantially diminished the significance of Lindsay's abandonment of its case below related additionally to Item 2. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 30 June 2006 Counsel for the Applicant: M Leeming Solicitor for the Applicant: Heidtman & Co Lawyers Counsel for the Respondent: R Quinn Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 December 2005 Date of Judgment: 30 June 2006