Peacock and Another v Zyfert and Another

(1983) 48 ALR 549

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(Judgment by: Franki J)

Peacock and Another
vZyfert and Another

Court:

Judges: Fox J

Franki JLockhart 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

Hearing date: 2, 3 March 1983
Judgment date: 18 August 1983

Sydney

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Judgment by:
Franki J

This is an appeal by the Minister for Industry and Commence and the Collector of Customs for New South Wales from a judgment of a judge of this court in an application under the Administrative Decisions (Judicial Review) Act 1977.

The respondents, Thomas Zyfert and Louis Muller, had imported into Australia certain articles which had resulted from the removal of the engine, gear box and power steering pump from a BMW motor vehicle. The importation took place in July 1982 and the respondents commenced the action because the appellants had threatened to seize the articles imported alleging that they were prohibited imports and, as such, liable to seizure and forfeiture pursuant to the powers provided in the Customs Act 1901.

It was common ground before the learned trial judge that the critical question was whether or not the articles were prohibited imports under reg 7 of the Customs (Import Licensing) Regulations made pursuant to s 50 of the Customs Act. The answer depended on the provisions in Ch 87 of Sch 1 of the Customs Tariff Act 1973 in the form in which it existed at the relevant time and upon the effect of what is called an exception notice No M55 issued by the Minister of State for Business and Consumer Affairs on 21 May 1980 under reg 17 of the Customs (Import Licensing) Regulations.

The learned trial judge had immense difficulty in ascertaining what the relevant legislative provisions were and it was not until almost the conclusion of the case that the parties were able to direct him to what were agreed to be the relevant provisions in Ch 87 of the Customs Tariff Act at the relevant time. Before us precisely the same problems arose and we repeatedly expressed our discomfort at what appeared to be the extreme difficulty of ascertaining the relevant legislation. Ultimately counsel were able to agree on what the relevant legislation was but, unfortunately, although the matter was argued on the basis of the terms of that legislation, after we had reserved our decision it became clear that the relevant legislation differed from that upon which the arguments to us and to the trial judge had been based. Communications were addressed to both senior counsel who have notified the court that they agree that certain relevant amendments were made to Ch 87 by the Customs Tariff Amendment Act 1982 (No 30 of 1982). I will refer specifically to these later. These amendments by s 12 were deemed to come into operation on 19 August 1981.

Since the matter has been reserved I have spent a great deal of time trying to satisfy myself that I have before me all the legislation which might be relevant and I am still not entirely satisfied of that. However, I will deal with the matter upon the basis of the legislation that was finally agreed by counsel to be that which is relevant for consideration. I note, however, that exception notice M55 appears to have been replaced by a later notice, M61. Our attention was not directed to this notice. However, M61 appears to be in the same terms as M55.

It is a herculean task to find relevant legislation under the Customs Tariff Act. One knows that there are many and frequent amendments of the Customs Tariff Act, but it still seems that some urgent steps should be taken to endeavour to improve the present position for anybody, skilled lawyer or otherwise, wishing to unravel its mysteries.

The appellants presented two arguments to us. They were, firstly, that the proceedings before the trial judge were misconceived and without jurisdiction unless it could be shown that whoever made the relevant decision had reached that decision in a way which constituted an error of law and, secondly, and alternatively, that the learned trial judge had reached the wrong conclusion. I will deal with the second argument first.

The most critical change in the legislation to which our attention was not directed during the hearing and to which I have referred, was that by Act No 30 of 1982 the classifications 87.02.12, 87.02.121 and 87.02.129 were repealed and it appears nothing was introduced to replace them. I set out the terms of item 87.02 and sub-item 87.02.1 as it was considered during the hearing before us.

I also set out the terms of the same sub-item as it was after the amendments made by Act No 30 of 1982.

It was common ground before us that the effect of regs 7 and 17 of the Customs (Import Licensing) Regulations and exception notice M55 was that if the relevant articles came within the classification 87.02.119 they were prohibited imports and, if not, they were not so prohibited. No argument was presented to us concerning the meaning of the phrase "passenger motor vehicles" which appeared in the exception notice. No attention was directed by counsel to any possible view that the exception order depended upon the articles falling within 87.02.119 and the effect, if any, of those alterations made to the classifications by the 1982 Act which had substituted for the word "derivatives" in 87.02.1 the word "variants" and added the exception of "cab over forward control vehicles". These are not significant alterations in the subject case and it would appear not to matter that the content of classification 87.02.119 was altered after the exception order was made.

The question before us then is: Within which classification in Sch 1 of the Customs Tariff Act do the imports fall? Section 14 of the Customs Tariff Act makes provision that Pt 1 of Sch 1 to it sets out interpretative rules for the interpretation of the rest of Sch 1 for the purpose of ascertaining, inter alia , into which item, sub-item, paragraph or sub-paragraph in the First Schedule goods fall. There are notes at the beginning of Ch 87 which are made relevant by interpretative r 1(2). I have had some considerable difficulty in ascertaining what are all the currently existing interpretative rules in Pt 1 of Sch 1 and the currently existing notes at the commencement of Ch 87. However, I am only concerning myself with the rules and notes to which our attention has been directed.

The learned trial judge found that the key question is whether "upon the assumption that each article is a motor vehicle of a kind operated by self-contained power", an assumption his Honour was prepared to make, "the article is an assembled motor vehicle or an unassembled motor vehicle". His Honour took the view that without an engine an article did not fall within 87.02.119. His Honour was misdirected as to the relevant legislation and he placed reliance on the presence of sub-para 87.02.129. It now appears clear that for an article to fall within 87.02.119 it must fall within sub-item 87.02.1, namely be within "vehicles of a kind operated by self-contained power ... being -- (a) motor cars ...". It must also fall within the word "assembled" in para 87.02.11 because it is perfectly clear that sub-para 87.02.119 fixes a rate of duty for vehicles falling within 87.02.1 which are assembled which did not have rates prescribed by by-law referred to in sub-paras 87.02.111 and 87.02.112. It was common ground that those two sub-paragraphs were not relevant to the issues before us. The learned trial judge concluded that he was not persuaded that: "... the vehicles here were assembled motor vehicles of a kind operated by self-contained power, or, notwithstanding that they may be unfinished or incomplete, that they had the essential character of assembled motor vehicles." With respect I agree with this view.

Our attention was directed to interpretative r 2(1)(a) and (b) which provides:--

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.

Before the learned trial judge the appellants argued that the goods were in a disassembled state. "Disassembled", I assume, probably means having once been assembled. In my opinion, assuming that the relevant goods are disassembled, under r 2(1)(b) the question is whether, if assembled, they would be goods to which para (a) of that sub-rule applies. Paragraph (a) requires the goods to "have the essential character of goods of that kind". For the articles with which we are concerned to fall within 87.02.119 they must be assembled vehicles of a kind operated by self-contained power. In my opinion, if a vehicle although otherwise assembled does not have an engine and a gearbox and has no other source of power connected to it, it cannot be said to be an assembled vehicle within 87.02.11, even with the aid of r 2(1)(a), because, without an engine, the article cannot be said to be a vehicle of a kind operated by self-contained power.

Notes 9 and 10 to Ch 87 provide that a "sub-assembly" is included in goods which are unassembled and assembled does not include goods which are unassembled. This provision also tends to support the conclusion which I have reached. The notes read:--

9.

In a sub-item (other than 87.10.2), paragraph or sub-paragraph in this Chapter, 'unassembled' means goods that are not assembled or are not further assembled than a stage that constitutes a sub-assembly.

10.

In a sub-item, paragraph or sub-paragraph in this Chapter, 'assembled' includes goods that are not 'unassembled' by virtue of the last preceding note.

These rules are probably not relevant since the elimination of sub-para 87.02.129 but, if relevant, they support the view that a vehicle without an engine is not an assembled vehicle. It will be seen that I have reached the conclusion that the relevant articles do not fall within classification 87.02.119 and so they were not prohibited imports.

I pass now to consider the first submission of the appellants that the learned trial judge had no jurisdiction. As I read the judgment of the learned trial judge, he considered that, in any event, he had jurisdiction under s 5(1)(d) of the Administrative Decisions (Judicial Review) Act. This provides in substance that a person aggrieved may seek the review of a decision where "the decision was not authorized by the enactment in pursuance of which it was purported to be made". Before us the appellants argued rather upon the basis that the question was whether there had been an error of law made by the person making the decision, so that s 5(1)(f) of the last-mentioned Act was the one relevant for consideration. We were referred to a number of cases dealing with the distinction between matters of fact and matters of law, but in my opinion it is not necessary to deal with these in any detail.

The legislation is extremely difficult to interpret and involves difficult questions of the application of rules of interpretation to be found in that legislation. When the correct law has been ascertained and it is a question of applying that law to the undisputed facts, the ultimate question is whether a finding that an article was an assembled motor vehicle for transport of persons of a kind operated by self-contained power where that article did not contain an engine and gearbox involved an error of law by the person making the decision. In this case the facts are such that they have of necessity to fall outside the relevant words although, once the relevant law is interpreted, it appears that the words will bear their ordinary meaning. The statement from the judgment of Bowen CJ in Lombardo v FC of T (1979) 28 ALR 574 (at 576) shortly sets out the position. It reads: "On the other hand a question of law will be involved where technical legal words must be construed before the statute can be applied to the found facts. Also, as stated previously, where the facts must fall clearly within or without the statute."

I am therefore of the view that the decision under review involved an error of law and for that reason it is not necessary to consider whether the decision was also one not authorized by the enactment in pursuance of which it was purported to be made.

Some consideration was given to the question of precisely whose decision was the subject of the application for review. This question does not appear to be of any significance and I do not propose to deal with it. A decision resulting in severe prejudice to the respondents had been reached and this decision was one to which the Administrative Decisions (Judicial Review) Act applied. As I have said, the only question in relation to the classification of the relevant articles argued before us was whether they fell within sub-para 87.02.119. When they were imported they had been declared under item 87.05 which related to bodies for motor vehicles. The question did not arise before us whether other classifications might apply such as 87.06 covering parts and accessories for certain motor vehicles, or 87.14 covering "other vehicles (including trailers), not mechanically propelled, and parts therefor".

I would dismiss the appeal and order the appellants to pay the respondents' costs of the appeal.