Landau and Another v. Goldwater and Another

13 ALR 192

---

(Judgment by: Aickin J)

Customs and excise - Duty paid under protest - Classification of imported goods - Milk chocolate wafers - "Biscuits... Put up as confectionery" - Recovery of duty - (CTH) Customs Tariff Act 1966, First Schedule, Pt II, Ch 19.8; - (CTH) Customs Act 1901 s 167

Court:

Judge:
Aickin J

Hearing date: 29, 30 September 1976
Judgment date: 29 October 1976

Melbourne

---

Judgment by:
Aickin J

Customs and excise - Duty paid under protest - Classification of imported goods - Milk chocolate wafers - "Biscuits... Put up as confectionery" - Recovery of duty - (CTH) Customs Tariff Act 1966, First Schedule, Pt II, Ch 19.8; - (CTH) Customs Act 1901 s 167

On 19 January 1975 the plaintiffs imported into Australia a quantity of milk chocolate wafers under the trade name "Leo". The wafers were entered under the Customs Tariff Act 1966 as "Biscuits - Other", and duty was subsequently assessed and paid. On 5 August 1975 the Collector of Customs claimed additional duty, taking the view that the wafers were "Biscuits - Put up as confectionery". The plaintiffs paid the additional duty under protest, and brought the present action in the High Court of Australia for recovery thereof under s 167 of the Customs Act 1901 (Com).

Held : Accepting that the proportion of cocoa to biscuit is relevant in determining whether or not an article was put up as confectionery, none the less, on the evidence, the Leo milk chocolate wafer was not substantially confectionery nor was it composition such that it was "put up as" confectionery in the sense that the chocolate or sugar content so predominated that the undoubted biscuit content was overcome or outweighed by the sugar or chocolate coating. Accordingly, the wafers were originally correctly entered as "Biscuits - Other", and the plaintiffs were entitled to recover the duty paid under protest.

Action for Recovery of Duty Paid under Protest

The plaintiffs, Paul Landau and Alice Landau, sued the defendants Leo Victor Goldwater and the Commonwealth of Australia under s 167 of the Customs Act 1901 (Com) for recovery of additional customs duty paid under protest.

Cur adv vult

Dr C L Pannan, for the plaintiffs.

A R Castan, for the defendants.

Aickin J.

The plaintiffs in this action sue under s 167 of the Customs Act 1901-1975 for the recovery of customs duty paid under protest. The dispute arose out of a shipment of goods which was imported into Australia by the plaintiffs and which arrived in the Encounter Bay on 19 January 1975. The Customs agent acting for the plaintiffs entered the goods for home consumption under Ch 19 of Div 1 of Pt II of the First Schedule to the Customs Tariff Act 1966-1975 as being "Biscuits - Other" under item 19.08.19. Duty was assessed by the Collector of Customs on that basis and duly paid. On 5 August 1975 the Collector claimed additional duty on the basis that they were wrongly classified and issued a "Postnote - Duty Shortpaid". Pursuant to that a further entry for home consumption was made and duty as claimed was paid under item 19.08.11 under protest. This action was then instituted within the time prescribed by s 167.

The goods in question comprised a quantity of milk chocolate wafers under the trade name "Leo" and the reassessment of duty arose because the collector of Customs took the view that the appropriate item was 19.08.11, namely, "Biscuits - Put up as confectionery" and the issue in this case is which is the correct classification.

The evidence shows that these goods are packed in boxes containing a number of individual packages but were also supplied by the importer to some purchasers packed in a carton containing a number of boxes. Both the box and the individual packages bear the words "milk chocolate wafer" by way of description of the goods. The individual packages are wrapped in silver foil and a paper sleeve or wrapper bearing a picture of the contents, broken to show layers of biscuit, chocolate and filling, is slipped over the foil. That sleeve bears in five languages the description which is, in English, "Milk Chocolate Wafer" and specifies the ingredients. The paper also bears the manufacturers name and the word LEO in large letters occupying about one-quarter of the top of the paper.

The first plaintiff gave evidence that he sold primarily to grocers, milk bars and supermarkets but he did not advertise the product and had not seen advertising of it by retailers. He said that most retail sales would be in respect of one or more individual packages rather than as a complete box containing 36 items. He also said that in addition to those retail outlets, the product was sold in at least one large department store and was there available both in the biscuit section and the confectionery section.

Part II of the First Schedule of the Customs Tariff Act 1966-1975 divides the commodities to which it applies into a number of Divisions and Chapters. Division IV deals with "prepared foodstuffs; beverages, spirits and vinegar; tobacco;" In that Division, Ch 17 deals with "sugars and sugar confectionery" but it is provided that "sugar confectionery containing cocoa falling within item 18.06" does not fall within Ch 17. Item 17.04 deals with "sugar confectionery, not containing cocoa". Chapter 18 deals with cocoa or chocolate but does not apply to goods which fall within, inter alia, item 19.08. Item 18.06 comprises "chocolate and other food preparations (including sugar confectionery) containing cocoa". Chapter 19 deals with "preparations of cereals, flour or starch; pastry-cooks products". Included in that Chapter is item 19.08, the relevant parts of which are as follows:-

It is common ground that the combined result of these items is that the Leo wafers fall within item 19.08, being "biscuits". The dispute is whether they are "Biscuits - Put up as confectionery" or "Biscuits - Other".

The expression "put up as" does not appear to be one which has been the subject of any judicial decision and it therefore bears its ordinary meaning in its context. The First Schedule of the Customs Tariff Act contains a substantial number of somewhat similar expressions. Thus item 05.03 speaks of "horsehair and horsehair waste, whether or not put up on a layer or between two layers of other material"; item 07.04.2 speaks of "herbs, put up for household use"; item 12.03.1 speaks of "seeds, put up for retail sale"; item 12.07.1 speaks of "certain roots ... not put up for retail sale"; item 21.07.73 under the general heading of "Miscellaneous Edible Preparations", and the sub-heading of Mixtures of chemicals and foodstuffs of a kind used in the preparation of human foodstuffs: - goods ... put up for retail sale". The expression "put up for retail sale" or "put up in retail packs" occurs in item 30.04 and item 30.05.1, and many other examples of similar usage occur. There are also articles described by reference to their mode of packing, eg item 16.04.2 "goods packed in airtight cans, bottles etc". Other items are described by reference to their use or intended use as in item 13.09 "raw vegetable materials of a kind used primarily in dyeing or tanning" and item 14.01 "vegetable materials of a kind used primarily for plaiting". There does not, however, appear to be any other item which uses an expression similar to "biscuits put up as confectionery". At all events I was not referred to any item which used a formula such as "A put up as B".

It was argued on behalf of the plaintiff that expressions such as "put up for retail sale" were designed to refer to the purpose or end use of the product, and that other expressions such as "put up in airtight cans, bottles etc" were to be distinguished as being descriptive of the manner of packing or of the article itself and involved no reference to use and thus were not "purposive" in character. Upon this basis it was argued that the expression "put up as confectionery" involved no reference to purpose or end use but was merely descriptive of the biscuit.

The contrary argument was that the expression did indirectly refer to a purpose and that there is no clear distinction between a purposive and a descriptive expression. Accordingly, it was said that purpose is a relevant element in considering the application of item 19.08.11.

It is no doubt necessary, in order to apply item 19.08, to consider the meaning of the expression "biscuit" as well as the meaning of the expression "confectionery", notwithstanding that it is common ground that the Leo milk chocolate wafer is a biscuit. It was suggested in evidence that a biscuit was a product of the baking of unleavened flour with or without sugar or flavouring material and there seemed in substance to be no complaint about this definition or perhaps description. Both counsel and some witnesses ventured definitions or descriptions of "confectionery" and other attempts have been made in certain decided cases. Thus Lawton J propounded the following definition for the purpose of the Purchase Tax Act 1963 in Commissioners of Customs and Excise v Popcorn House Ltd [1969] 1 QB 760 at 762: "I adjudge that the word 'confectionery' ... means any form of food normally eaten with the fingers and made by a cooking process other than baking which contains a substantial amount of sweetening matter. That is the characteristic of both chocolates and sweets: they are normally eaten with the fingers; they are not made by baking, and they have substantial amounts of sweetening matter in them."

Its origin does not appear and it is carefully expressed to be for the purpose of that legislation. However, it may be helpful as a general description, rather than a definition. The dictionary meanings attributed to the term vary somewhat. The Oxford English Dictionary defines confectionery as being "things made or sold by a confectioner, a collective name for sweetmeats or confections". The relevant meaning of the word "confection" is a "prepared dish or delicacy, now a preparation of fruit, spices, sugar or the like used as a relish or dainty, a preserve, sweetmeat or comfit". Less comprehensive dictionaries speak of "confection" as a noun being a "thing compounded, especially preserve, sweetmeat, whence confectionery" and defines "sweetmeat" as "shaped morsel of confectionery usually consisting chiefly of sugar or chocolate, a fruit preserve in sugar, bonbon, sugarplum, goody".

In the present circumstances it does not seem to me that it is either necessary or useful to endeavour to arrive at a definition of the term "confectionery", even if it were possible to do so. It is a word of common usage which embraces a wide variety of articles, many readily recognizable as examples of confectionery. Primarily, their common characteristic may be described as that conveyed by the more old-fashioned term "sweetmeat" for which the word "comfit" appears to have been a synonym (cf Customs Act 1901 s 132 which speaks of "Confectionery, comfits, succades, sweetmeats and sugar candy"). They are primarily small articles of a sweet character containing substantial amounts of sugar and regarded as being in the nature of a "delicacy" in whatever quantity they may be consumed. There is, however, no doubt that in ordinary parlance the term would now include blocks of chocolate, however small or however large.

Section 167 provides that the duty assessed, or re-assessed, is to "be deemed to be the proper duty payable in respect of the goods, unless the contrary is determined in an action brought in pursuance of this section" and it is accordingly common ground that the onus is on the plaintiffs to show that the import has been wrongly assessed: Whitton v Falkiner (1915) 20 CLR 118 at 125. However, the problem of the proper classification of an identified article can seldom be solved by resort to onus of proof, and in the circumstances of the present case I do not think that any assistance is to be derived from that approach.

The general heading of item 19.08, namely "Pastry, biscuits, cakes and other fine bakers' wares, whether or not containing cocoa in any proportion", makes the relative proportions of chocolate and biscuit material irrelevant to the classification of the product. However, this heading is significant in relation to the meaning and application of item 19.08.11.

Both the first plaintiff and the defendant's witnesses said that the Leo wafer was competitive with a number of locally produced products and with one other product imported by one of the local manufacturers from an affiliated company in New Zealand. The competitive products were all plainly marked on the package as "biscuits" and some had some filling, apart from the biscuit base and chocolate, as one layer of the contents.

The Leo milk chocolate wafer comprises three wafers, or layers of wafer, and some cream filling, the whole being coated with chocolate; it is approximately 90 mm long by 60 mm wide and about 6 mm deep and although packed as a single piece it is designed to be and is easily broken into four fingers. The wafer and cream filling comprise 62 per cent by weight, and the chocolate 38 per cent. Further analysis showed that the total sugar content was 41.6 per cent. Further evidence also showed that a number of sweet biscuits, not chocolate or sugar coated, had sugar contents ranging from 30.6 per cent to 42 per cent, and another chocolate coated biscuit (a "TimTam") a sugar content of 43 per cent.

The principal competing products were of about the same size as the Leo milk chocolate wafer. Some were readily divisible into fingers in the same way, whereas others were either individual items or not so easily divisible. Some of the competing products are very similar in appearance and character to the Leo milk chocolate wafer (notably the "KitKat"), whereas others, though said to be competitive at the retail level, bear a substantially different appearance. All of the competing products bear as part of their description the word "biscuit" sometimes in conjunction with the word "wafer", whereas the Leo milk chocolate wafer is described simply as a "wafer". No real significance seems to attach to this distinction because it is clear that a wafer is a form of thin biscuit. It was suggested that the uniform practice amongst Australian manufacturers of using the word "biscuit" on competing products is due to an endeavour to clarify the Sales Tax status of their products, but the fact remains that that is how the products were described. It is clear that whatever the sales tax classifications may be they do not assist in resolving the present problem, particularly in view of the fact that it is common ground that the Leo milk chocolate wafer is a biscuit for present purposes, albeit a "chocolate biscuit". A good deal of evidence was given as to the manner in which the Leo milk chocolate wafer and the competing "chocolate biscuits" were sold and displayed at the retail level. It was common ground that the principal outlets are grocers, milkbars, supermarkets, departmental stores and small kiosks and sandwich shops. It was also common ground that "confectionery shops", as they used to be, are now extremely rare. The smallest retail outlets are kiosks, milkbars or "mixed businesses" where biscuits and confectionery along with other items of food are sold.

There was some area of dispute as to the place in supermarkets in which one would expect to find a biscuit such as the Leo milk chocolate wafer. I think in the end the difference was one of emphasis, rather than amounting to a real conflict, but in so far as there is any actual conflict I prefer the evidence of those who said that in such outlets the Leo milk chocolate wafer, along with its principal competitors such as "KitKat", would generally be found in the confectionery section rather than in the biscuit section. I also prefer the evidence of the defendant's witness that in outlets such as milkbars and mixed businesses similar products tend to be grouped together rather than displayed in a haphazard manner, and that one would generally find competing products, eg different makes of blocks of chocolate, displayed together rather than in different places, although this is not always the case.

The evidence on behalf of the plaintiffs was that there were not different buyers employed by supermarkets or other large volume purchasers for groceries and confectionery and that the same man handled both those lines. This evidence was not contradicted.

The defendant's evidence came from employees of local manufacturers who produced competing products and from the executive director of the Australian Confectionery Manufacturers' Association. The manager of one Australian manufacturer, Mr Montgomery, who had formerly been the sales director of that company, which manufactures the "KitKat" bar, said that the Leo milk chocolate wafer was very similar to "KitKat" save that the word biscuit was not on the wrapping. He said that "KitKat" was "invariably displayed" with confectionery such as chocolate bars and packets of sweets and that he would expect to find the Leo milk chocolate wafer in the same section. His reasons for this expectation were the size of the product which he said was designed for "immediate consumption", that it was intended to be eaten on its own, ie not as an item in a meal, and that it was to be eaten by the purchaser. But I do not regard the witness as intending that any of these expressions was to be taken as literally as it was expressed. He also said, as to the presentation of these products, that in the confectionery industry it was customary to use a "brand name", an expression which was apparently intended to refer to the name of an individual product, rather than to have its ordinary sense of a term applied to a number of products of the same manufacture. He said that the mode of presentation is to feature the brand name which is regarded as more important than the description. He said he regarded "Leo" as a brand name in this sense and that the use of the foil wrapping and the paper wrapper or sleeve had been developed for chocolate bars and was common in the confectionery trade. He also said that it was common practice in the confectionery trade for manufacturers to design a box for display purposes and that the box in which the Leo product was packed was an example of this practice. He was asked the distinction between confectionery and grocery lines and said that the "different attitudes by the purchaser is a very important feature of the distinction". He acknowledged, however, that the foil pack and display box were not confined to the confectionery trade but said that display boxes were not used in the biscuit trade, which he also said does not use brand names in his sense of that term, though some exhibits such as packets of "TimTams" and "Chocolate Royals", both said to be biscuits, do use such names. He added that in milk bars such boxes were often placed on the counter, and in supermarkets at the check-out desk, but admitted that this practice was not confined to confectionery, and it is apparent that this is an exception to the "invariable display" in the confectionery sections. This witness contrasted products such as Leo wafers and "KitKat" which are "moulded" and others such as "TimTam" which are "enrobed" in chocolate, the former having more chocolate than the latter which he regarded as chocolate biscuits.

Another witness, Mr Winfield, the manager of the Consumer Relations Division of another Australian manufacturer, stated what he regarded as the characteristic marketing features of the Leo milk chocolate wafer and competing items such as "KitKat" and "Bite", which lead to them being displayed and sold in the confectionery section of a supermarket or like establishment: (1) that such items are purchased for "comsumption at that time or shortly thereafter", not being bought to be taken home, and are "impulse buying" items; (2) that such items are displayed in the "usual confectionery manner" to be taken individually or certainly not more than two at a time; (3) that such items are of a size and quantity aimed at "appetite satisfaction" so that if eaten then and there will be "not too little nor too much for immediate consumption"; (4) that the wafer biscuit and chocolate characteristics were identical to items which he would regard as being in the confectionery section; and (5) that in the confectionery market the wrapper is made as bright as possible to attract young buyers. He said of some of the competing products (Picnic, Kooka and Bite) that they were "essentially confectionery" but that he regarded them as biscuits made up as confectionery and that each of them was marketed, displayed and sold as confectionery. He also said of one competing product, "TimTam", that when packed so that there were only two items in a package it was a confectionery item, but when in a large package containing 10 or 12 items it would be a "biscuit pack". He agreed that all packages used the word "biscuit" but went so far as to say that if an item is sold with confectionery it becomes confectionery.

This does not amount to evidence of trade usage of any relevant expression nor does it amount to evidence of the conduct of the trade. The statement that items are displayed as confectionery if they are identical to items regarded as confectionery supplies no criterion. None of the factors referred to provides any assistance in determining the meaning or application of the terms of item 19.08.

The executive director of the Confectionery Manufacturers' Association (Mr Evans) expressed the same view as other witnesses called by the defendant as to the location in a supermarket where he would expect to find the Leo product. He was asked about the distinction between biscuits and confectionery and agreed that confectionery normally contained a substantial amount of sugar though he thought not always over 50 per cent. He agreed that it was made by a process other than baking whereas biscuits were baked. Although he agreed that confectionery did not normally constitute a meal, he thought that in increasing instances a confectionery bar was consumed as a snack in place of lunch. He also said that a biscuit by itself was not confectionery, whether with sugar on it or in it, and that it does not become confectionery by reason of being covered with chocolate or sugar. He agreed that it would cease to be a biscuit in the trade if it had lost its essential character as biscuit and taken on attributes more commonly associated with confectionery. He agreed that it was a matter of degree whether an item was to be regarded as a biscuit or confectionery.

A number of exhibits were tendered which were classified by the witness, Montgomery, as being confectionery. They all consisted of bars or blocks of approximately the same volume as the Leo product and the "KitKat". They were said to be representative of what he described as "bar lines" or "count lines". These articles were all wrapped, either closely or loosely, in brightly coloured material, but only one was packed or wrapped in a manner which resembled that of the Leo milk chocolate wafer or the KitKat biscuit. The witness agreed that some confectionery is sold loose, in the sense that individual items are displayed in a box or other receptable and sold by number or by weight, being put into paper bags; that others were sold ready packed in transparent bags and that many items of confectionery are sold in boxes or packets.

From all this evidence it appears that there is no mode of packaging which is common to the confectionery trade as such, though individual groups of competing products may have somewhat similar packaging.

The evidence thus indicates that the meaning of the term "confectionery" does not have precise boundaries. It does not suggest that there is any generally accepted trade meaning or usage of the phrase "biscuits put up as confectionery". The evidence is therefore of no assistance in ascertaining the meaning or application of the statutory term. See on this aspect the judgment of Mason J in D & R Henderson (Mfg) Pty Ltd v Collector of Customs for the State of New South Wales (1974) 48 ALJR 132, especially at 134, Col 1 (digested 2 ALR xxix-xxx).

Item 19.08 covers that which, ex hypothesi, is a biscuit. Its application may be tested in part by reference to the "get up" or "packaging" and appearance of a biscuit as it is sold by retail and more by reference to the ingredients, contents or composition of the article. The evidence directed to the place of sale in department stores, supermarkets and the like is material only in a secondary sense. The fact that an article is displayed for sale along with items which are conceded to be confectionery may provide some evidence that it is confectionery or perhaps that it is "got up as confectionery", but it cannot be decisive of either. Nor can it be decisive of either the character of an article or of its appearance as being, or being "got up as", confectionery, that it is displayed for sale at or adjacent to a check-out point in a supermarket or upon the counter in a milkbar or mixed business as an attraction to impulse buyers.

It was argued that the comparison of the Leo wafer and its competitors in the chocolate biscuit category with the range of confectionery items described as "bar" or "count" lines suggests that it is "got up as confectionery". In my opinion, however, the only article in that group which can be said to resemble the get up, packaging or appearance of the Leo wafer or its nearest competitor "KitKat" is a small block of chocolate; ie each of them is wrapped in silver foil over which a paper sleeve or wrapper is placed, leaving the silver foil visible at the ends. This mode of packing is not characteristic of any of the other items and there is nothing to suggest that it is characteristic of other forms of confectionery, save blocks or bars of chocolate. Neither the Leo nor the KitKat resemble in composition a block of chocolate, though, they do resemble it in appearance.

The evidence that articles such as the Leo milk chocolate wafer or the KitKat are designed for and purchased for "immediate consumption" does not suggest that they are, or are "got up as", confectionery. There is no evidence that such a quality is characteristic of confectionery; indeed common sense would suggest the contrary, notwithstanding that there are no doubt articles, including some items of confectionery, of which that may be true.

The use of bright coloured wrapping was said to be characteristic of "bar" or "count" lines in the confectionery trade, and to be found in the Leo wafer and the other chocolate biscuits competitive with it. This cannot be decisive in itself but may be a factor to be taken into account in determining whether a product is "got up as" confectionery.

These matters must be considered along with the composition of the article itself in order to see what their cumulative effect is, bearing in mind that the draftsman must be taken to have assumed that some biscuits as defined (whether or not "chocolate biscuits") could be identified as "got up as confectionery". The item expressly makes the proportion of cocoa to biscuit irrelevant to the classification of an article as a biscuit, but that proportion is, in my opinion, relevant in determining whether or not such an article is "put up as confectionery". One might properly regard an article comprising a small piece of thin wafer heavily coated with chocolate on both sides so that there is 10 per cent biscuit and 90 per cent chocolate, whether or not packed in a box with other articles comprising chocolate and non-biscuit fillings, as a "biscuit got up as confectionery".

The purpose of this somewhat curious expression appears to be to introduce some limitation on the extreme width of the expression "biscuit" when coupled with the provision that an article is a biscuit irrespective of the amount of cocoa (ie chocolate) which it may contain. Confectionery not containing cocoa is charged under item 17.04 with customs duty at the rates of 471/2 per cent (general) and 221/2 per cent (preferential) while sugar confectionery containing cocoa is charged under item 18.06 with duty at the rates of 471/2 per cent (general) and 221/2 per cent (preferential) but that item does not apply to goods falling under item 19.08. However, biscuits as defined, comprising say 90 per cent chocolate would, but for the division of biscuits in two categories, ie those "put up as confectionery" and "others", attract duty only at $0.033 per kg (general) and free (preferential). The purpose of item 19.08.11 is therefore to prevent some products excluded from item 18.06 by the cross-reference to item 19.08 from attracting the low rate of duty applied to biscuits, if such articles are in truth more appropriately regarded as confectionery. Biscuits "put up as confectionery" are those selected for this treatment. So regarded the problem is inevitably one of degree and thus one which cannot be decided by seeking precise criteria capable of automatic operation. This analysis suggests that "get up" in the sense in which the term is used in "passing off" proceedings is not a major consideration but it may be one relevant matter. However, in a situation where there is no "get up" characteristic of confectionery as such, it is not a matter of much weight. Again it may be that if there were a "get up" characteristic of some particular category of confectionery, its use in respect of biscuits might be material. The manner in which retail display a particular product may be of some relevance but it cannot be the fact that, if retailers display a biscuit in the same section of their premises as items which are undoubtedly confectionery, the biscuit becomes confectionery for the purpose of this Custom Tariff classification.

Here we have an article described as a "chocolate wafer", ie as a kind of biscuit, prominently displaying on its wrapping its character as a chocolate coated biscuit. It competes on the Australian market with articles which (for whatever reason) are prominently marked as biscuits. I do not think that its biscuit characteristics are so overpowered by the chocolate coating as to produce the result that it masquerades as confectionery, so that it is to be taken or mistaken for confectionery. The evidence does not, in my opinion, establish that it is a substitute for confectionery. The notion that such biscuits form part of the "snack market" tends to point against them being, or being a substitute for confectionery. The fact that it competes with items classified as confectionery such as those put in evidence as exhibits does not, in my opinion, warrant the conclusion that it is put up as confectionery. The Leo milk chocolate wafer is not substantially confectionery nor is its composition such that it is "put up as" confectionery in the sense that the chocolate or sugar content so predominates that the undoubted biscuit content is overcome or outweighed by the sugar or chocolate coating.

I am therefore of opinion that the Leo milk chocolate wafer is properly classified under item 19.08.19 as "Biscuits - Other", and that the plaintiffs should succeed.

There will be judgment for the plaintiffs with costs, with the usual order as to the exhibits.

Order

Judgment for the plaintiff for $350.79 with costs.

Solicitors for the plaintiffs: Samuel & Woolf.

Solicitors for the defendants: Commonwealth Crown Solicitor

C N JESSUP

BARRISTER-AT-LAW

* An appeal has been lodged by the Commissioner against the decision of the Supreme Court of New South Wales.