FC of T v SMITH & NEPHEW PTY LIMITED

Members:
Jenkinson J
Beaumont J
Beazley J

Tribunal:
Full Federal Court

Decision date: Judgment handed down 26 August 1994

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Jenkinson J

I have had the advantage of reading the reasons for judgment of Beaumont J.

In considering the submission that goods must fall within the meaning of the expression ``surgical appliances'' as well as within the meaning of one of the expressions in the numbered paragraphs of Item 42 in order to be within that classification Hill J. discussed several authorities and concluded [
Smith & Nephew Pty Limited v FC of T 93 ATC 5213 at pp 5217-5218 ]:

``Ultimately, the present case cannot be decided by reference to cases discussing the construction of other items in the Schedule. Rather, the question is one of construction of the item itself.

The expression `surgical appliance' is defined in the Macquarie Dictionary (Revised Edition) as meaning: `any device designed to be worn to support a damaged or deformed part of the body'. That definition (at least if one excludes the words `to be worn') accords with my understanding of the ordinary use of the expression. However, it would hardly seem apt, for example, to encompass absorbent cotton wool, gauzes, lint, adhesive plaster and the like, although those items can be used during or after surgery. If it be a requirement that a surgical appliance be worn, then invalid chairs would not fall within the expression. There is no definition of `surgical appliance' in the Oxford English Dictionary, 2nd ed., although that dictionary describes `surgical', inter alia , as meaning:

`Pertaining to, dealing with, or employed in surgery or the surgeon's art... Of garments: worn to cure, correct, or relieve an illness or deformity.'

The latter part of the definition can likewise have no application. Invalid chairs, for example, can hardly be said to be worn.

I have formed the view that it is quite impossible to accept any ordinary meaning of the words `surgical appliance' so as to encompass each and every one of the items (1) to (17) listed below the heading. It is hard on any view to imagine a first-aid outfit as being a surgical appliance. Similarly, a

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ATC 4509

hair piece falling within item (17), while being required by virtue of sickness or disease, could hardly be described as a surgical appliance. Gauzes, lint and bandages cannot appropriately be referred to as `surgical appliances' in the ordinary sense. This consideration leads me to the conclusion that the proper interpretation of item 42 requires only that the goods in question fall within one of the lettered paragraphs and that it is unnecessary for the item also to fall within the words `surgical appliances'. However, the words `surgical appliances' give colour and context to the items that follow so that each must have, at the least, a medical application. For example, the word `trusses' could not refer to roof trusses, but must relate to trusses used to support limbs, whether or not following a surgical operation.''

I agree with his Honour's conclusion - and for the reasons he gives - that on its proper construction Item 42 requires only that the goods in question fall within the meaning of one of the expressions in the numbered paragraphs, but that in ascertaining the meanings of those expressions regard must be had to the light which the words ``Surgical appliances (and parts therefor)'' give concerning those meanings.

I agree also with the conclusion of the learned trial judge and of Beaumont J. that the stem on which the cotton bud is wound does not deprive the goods of their essential character of cotton wool. That in my opinion suffices to justify the dismissal of the appeal, with costs. I prefer to express no concluded opinion as to whether a cotton bud falls within the meaning of the expression ``surgical appliance''.