Peacock and Another v Zyfert and Another
(1983) 48 ALR 549(Judgment by: Lockhart J)
Peacock and Another
vZyfert and Another
Judges:
Fox J
Franki J
Lockhart J
Legislative References:
Administrative Decisions (Judicial Review) Act 1977 - s 5
Customs Act 1901 - s 50
Customs Tariff Amendment Act 1982 - Sch 6
Customs Tariff Amendment Act 1980 - Sch 8
Customs Tariff Amendment Act 1981 - Sch 18
Customs Tariff Act 1973 - Ch 87 of Sch 1
Customs Act 1901 - s 229(1)(b)
Case References:
Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (No 2) - (1980) 47 FLR 131; 3 ALD 38
Brutus v Cozens - [1973] AC 854
FC of T v Miller - (1946) 73 CLR 93
Farmer v Cotton's Trustees - [1915] AC 922
Hayes v FC of T - (1956) 96 CLR 47
Hope v Bathurst City Council - (1980) 29 ALR 577; 144 CLR 1
Hope v Bathurst City Council - (1980) 29 ALR 577; 144 CLR 1
Jones v Evans - [1944] KB 582
Lombardo v FC of T - (1979) 28 ALR 574
NSW Associated Blue Metal Quarries Ltd v FC of T - (1956) 94 CLR 509
Whitton v Falkiner - (1915) 20 CLR 118
Judgment date: 18 August 1983
Sydney
Judgment by:
Lockhart J
The relevant facts and statutory provisions are set forth in the judgments of the other members of the court, so I need not refer to them in detail. The statutory provisions are bemusing. I agree with everything that has been said about them by the other members of the court including the primary judge from whose judgment this appeal is brought.
The Governor-General may, by regulation, prohibit the importation of goods into Australia: Customs Act 1901, s 50. The importation of any goods (not being goods which are excepted from the application of the Customs (Import Licensing) Regulations) is prohibited unless, inter alia a licence under the Regulations to import the goods is in force (reg 7). The Minister may except from the application of the Regulations any goods or any goods included in a class of goods (reg 17(1)). By exception notice No M61 the Minister proclaimed that in pursuance of the power conferred upon him under reg 17 of the Regulations he excepted from the application of the Regulations "the goods specified in the Schedule to the Notice". Item 4(e) in that Schedule reads thus:--
goods other than--
- ...
- (e)
- passenger motor vehicles of a kind falling within sub-paragraph 87.02.119 in Schedule 1, but not including vehicles over 5 years of age.
Chapter 87 in Pt II of Sch 1 of the Customs Tariff 1966 as amended (the Tariff) is titled "Vehicles, Other Than Railway or Tramway Rolling Stock, and Parts Therefor". The chapter sets out goods by reference to numbered "Items" which are in turn sub-divided into sub-items, paragraphs and sub-paragraphs. When considering the operation of Ch 87 to determine whether goods are excepted from the application of the Regulations one proceeds in turn from the genus of chapter to the species of item, then to the sub-species of sub-item, the category of paragraph and the sub-category of sub-paragraph. This seems to me to be the only permissible approach and is consonant with the provisions of interpretative r 1(3) of the Rules for the Interpretation of Sch 1, inserted in the Tariff by the Customs Tariff 1974. The first two interpretative rules are, so far as material, in the following terms:--
1. (1) The titles of Divisions, Chapters and Sub-chapters in Part II of this Schedule are provided for reference only, and shall not be used for the purpose of interpreting this Schedule.
(2) For the purpose of ascertaining whether goods fall within an item, sub-item, paragraph or sub-paragraph or whether an item, sub-item, paragraph or sub-paragraph applies to goods, regard shall, subject to sub-rule (3) of this rule, be had to the terms of items (including sub-items, paragraphs and sub-paragraphs) and of notes of Divisions and Chapters and, except where those terms otherwise require, to rules 2, 3 and 4 of these Rules.
(3) For the purpose of ascertaining whether goods fall within an item or whether an item applies to goods, regard shall not be had to the terms of any sub-item; for the purpose of ascertaining whether goods fall within a sub-item or whether a sub-item applies to goods, regard shall not be had to the terms of any paragraph; for the purpose of ascertaining whether goods fall within a paragraph or whether a paragraph applies to goods, regard shall not be had to the terms of any sub-paragraph.
2. (1) A reference in an item (including a reference in a sub-item, paragraph or sub-paragraph) to goods of a particular kind shall be read as including a reference to--
- (a)
- goods that are imported in an incomplete or in an unfinished state but have the essential character of goods of that kind; and
- (b)
- goods that are imported in an unassembled or in a disassembled state but, if assembled, would be goods of that kind or would be goods to which paragraph (a) of this sub-rule applies.
The first question is whether the goods answer the description of "Motor Vehicles for the transport of persons, goods or materials ..." (item 87.02). If that question is answered in the affirmative one proceeds to ask if the goods fall within sub-item 87.02.1 namely:--
Vehicles of a kind operated by self-contained power (other than four-wheel drive vehicles, cab over forward control vehicles, battery operated vehicles or air-cushion vehicles), being--
- (a)
- motor cars;
- (b)
- station wagons; or
- (c)
- variants of motor cars or station wagons;
If the answer is "yes" to 87.02.1 then one asks if the goods fall within the relevant paragraph (87.02.11) as "Assembled" and, if an affirmative answer is given to that question, one then asks finally if the goods fall within the relevant sub-para (87.02.119) "Other". If an affirmative answer is given to that question it would follow that the goods are not excepted from the application of the Regulations, with the result that the goods were imported otherwise than under a current licence (reg 7(a)) and are prohibited imports (s 229(1)(b) of the Customs Act 1901) and therefore forfeited to the Crown and liable to seizure under s 203.
The first question is whether the goods answer the description of "Motor Vehicles for the transport of persons, goods or materials" for the purposes of item 87.02. It was not disputed that this question must be answered in the affirmative.
The second question is whether the goods are within the description of sub-item 87.02.1 as "Vehicles of a kind operated by self-contained power ... being (a) motor cars ...". Counsel for the appellants conceded that this conclusion could be reached only by calling in aid interpretative r 2(1). Counsel posed the question as being whether the goods answer the description of motor vehicles for the transport of persons of a kind operated by self-contained power being motor cars and, by calling in aid interpretative r 2(1)(a), said that although the goods as imported were in an incomplete or unfinished state they nevertheless had the essential character of goods of the relevant kind. In short, he argued that as the BMW motor cars were complete, when imported, except for engines and gear boxes, they nevertheless had the essential character of motor cars operated by self-contained power.
I fail to understand how a motor car (I use this in a neutral sense for purposes of description) which lacks an engine and gear box can be said to have the essential character of a motor vehicle of a kind operated by self-contained power.
Reliance was also placed by counsel for the appellants on interpretative r 2(1)(b). In my opinion, the goods do not answer the description of goods that were imported in an unassembled or disassembled state but, if assembled, would be goods of the relevant kind. Disassembled, in the context of interpretative r 2(1), means, in my view, having previously been assembled but subsequently taken apart. If a motor vehicle was once assembled but later disassembled so that it lacks an engine and a gear box it cannot be described as goods of the relevant kind. Chapter Notes 9 and 10 to Ch 87 provide no assistance in resolving the questions in this case.
Counsel for the appellants argued that the goods fell within the description of sub-para 87.02.11. He conceded that this result could be achieved only with the assistance of interpretative r 2(1). It is not strictly necessary to pursue this submission in view of the conclusion I have reached that para 87.02.1 does not apply to the goods in this case; but I shall deal with it for the sake of completeness. If one assumes that the goods are within para 87.02.1 and are therefore vehicles of a kind operated by self-contained power being motor cars, the question arises whether they are "Assembled" for the purposes of sub-para 87.02.11. Although I may be guilty of repetition, I reject the notion that a motor car which lacks an engine and gear box can be accurately described as having the essential character of a motor vehicle operated by self-contained power (interpretative r 2(1)(a)). I rely also on what I said earlier as to interpretative r 2(1)(b).
In my opinion, the relevant goods are not prohibited imports.
I now turn to a submission made on behalf of the appellants that the question which was before the Customs for determination in this case was one of fact and that the primary judge erred in treating it as a question of law. Reliance was placed upon the principle that, where a word is an ordinary English word, its meaning is not a question of law and, accordingly, whether the facts of a given case fall within that meaning is a question of fact. Reference was made to Hope v Bathurst City Council (1980) 29 ALR 577 at 580-2 ; 144 CLR 1 at 6-8 (per Mason J); Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW ) ( No 2 ) (1980) 3 ALD 38 at 49-51 (per Fisher J) and at 55-6 (per Sheppard J); and Brutus v Cozens [1973] AC 854, esp at 861 (per Lord Reid) where his Lordship said: "The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. ... It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law, but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision."
In my opinion this principle has no application in this case. If taken to its logical conclusion the appellants' argument really asserts that it is for the Customs to say in each case whether any, and if so which, provision of the Tariff applies to particular goods. But it is not a question of the Customs simply determining whether particular goods fall within the meaning of ordinary English words. What the Customs would be deciding, if the appellants are correct, is whether the description of particular goods falls within particular chapters, items, sub-items, paragraphs and sub-paragraphs of the Tariff. It must be a question of law whether a given description of goods falls within a particular part of the Tariff. Here the question is what particular part of the relevant Schedule, if any, applies. This necessarily involves a question of construction of the Tariff and is a question of law: see Whitton v Falkiner (1915) 20 CLR 118, per Isaacs J (at 127).
Review of the relevant decision is available under the Administrative Decisions (Judicial Review) Act 1977. There was an error of law made by the person making the decision (para 5(1)(f)).
I would dismiss the appeal with costs.