Peacock and Another v Zyfert and Another

(1983) 48 ALR 549

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(Judgment by: Fox J)

Peacock and Another
vZyfert and Another

Court:

Judges:
Fox JFranki 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

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

Sydney

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Judgment by:
Fox J

This is an appeal from a judgment of a judge of this court (Sheppard J) in proceedings brought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) respecting a decision of an officer of the Collector of Customs made in relation to two "vehicles" imported into Australia by the appellants. I say "vehicles" because the basic matter in issue is how goods, which appear to be two motor cars, but which have neither engines nor gear boxes, should have been treated for the purposes of the Customs Tariff 1966, as amended, as at the date of entry for home consumption, namely 8 September 1982. A customs officer decided that the goods in question were prohibited imports and were forfeited to the Crown.

The scheme of the relevant provisions commences with s 50(1) of the Customs Act 1901 (the Customs Act):--

50. (1) The Governor-General may, by regulation, prohibit the importation of goods into Australia.

(2) The power conferred by the last preceding sub-section may be exercised--

(a)

by prohibiting the importation of goods absolutely;

(b)

by prohibiting the importation of goods from a specified place; or

(c)

by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

Regulation 7 is as follows:--

7. The importation of any goods (not being goods which are excepted from the application of these Regulations) is prohibited unless--

(a)

a licence under these Regulations to import the goods is in force; and

(b)

the conditions and restrictions (if any) to which the licence is subject are complied with.

There is then reg 17(1):--

17. (1) The Minister may except from the application of these Regulations any goods or any goods included in a class of goods.

By exception notice No M55 the Minister proclaimed as follows:--

I, RANSLEY VICTOR GARLAND, the Minister of State for Business and Consumer Affairs, in pursuance of the power conferred upon me under Regulation 17 of the Customs (Import Licensing) Regulations, do hereby:

(a)

revoke all subsisting exceptions made in pursuance of that regulation; and

(b)

except from the application of those regulations the goods specified in the Schedule to this Notice.

Item 5(f) of the description of goods in the Schedule to the exception notice is as follows:--

5. Goods other than--

...

(f)

passenger motor vehicles of a kind falling within sub-paragraph 87.02.119 in Schedule 1, but not including vehicles over five years of age.

Chapter 87 in Pt II of Sch 1 bears the heading "Vehicles, Other Than Railway or Tramway Rolling Stock, and Parts Therefor". Item 87.02 in that chapter sets out categories of goods as follows:--

87.02 *Motor vehicles for the transport of persons, goods or materials (including sports motor vehicles, other than those falling within item 87.09):

87.02.1 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:

87.02.11 Assembled:

87.02.111 As prescribed by by-law

87.02.112 As prescribed by by-law

87.02.119 Other

87.02.2 Vehicles of a kind operated by self-contained power, not being--

(a)

air-cushion vehicles;

(b)

battery operated vehicles having a gross vehicle weight rating of less than 2.72 tonnes; or

(c)

goods falling within a preceding sub-item of this item:

87.02.21 Assembled, having a gross vehicle weight rating of less than 2.72 tonnes, not being four-wheel drive vehicles

87.02.22 Having a gross vehicle weight rating of 2.72 tonnes or more not being rock buggies, dumpers, shuttle dumpers, tailgate dumpers or the like

87.02.29 Other

87.02.9 Other

...

(See Customs Tariff Amendment Act 1980, Sch 8, item 283 and Customs Tariff Amendment Act 1982, Sch 6, item 9.)

The appeal was initially argued on the basis that item 87.02 included an additional paragraph and two sub-paragraphs, namely 87.02.12, 87.02.121 and 87.02.129. They referred to "unassembled" motor vehicles of a kind described in sub-item 87.02.1. However, the Customs Tariff Amendment Act 1982, Sch 6, item 9, operates to delete para 87.02.12 and its two sub-paragraphs as they were in the Customs Tariff Amendment Act 1980, Sch 8, item 283. This problem was raised with counsel who made written comments as to its effect on their submissions. I also understand that the exception notice to which we were referred had been replaced by another (M61) prior to the entry of the goods, but so far as relevant the fresh notice is in the same terms. I can but echo the concerns of the trial judge relative to the unavailability of a complete and updated print of the relevant chapter of the Tariff, as amended.

Each Chapter of Sch 1 is preceded by what are called Chapter Notes, which have statutory force. Those here relevant are numbers 9 and 10 of Ch 87:--

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.

(See Customs Tariff Amendment Act 1981, Sch 18, item 12 and Customs Tariff Amendment Act 1982, Sch 6, item 7.)

Section 14 of the Customs Tariff (Tariff) authorizes rules for interpretation of Sch 1. Sub-section (1) of that section is as follows:--

14. (1) The Rules for the Interpretation of the First Schedule set out in Part I of the First Schedule have effect for the purpose of ascertaining--

(a)

within which item or items any goods fall and, if the goods fall within two or more items, which one of those items applies to the goods;

(b)

if the item that applies to the goods is divided into sub-items -- within which of those sub-items the goods fall and, if the goods fall within two or more of those sub-items, which one of those sub-items applies to the goods;

(c)

if the sub-item that applies to the goods is divided into paragraphs -- within which of those paragraphs the goods fall and, if the goods fall within two or more of those paragraphs, which one of those paragraphs applies to the goods; and

(d)

if the paragraph that applies to the goods is divided into sub-paragraphs -- within which of those sub-paragraphs the goods fall and, if the goods fall within two or more of those sub-paragraphs, which one of those sub-paragraphs applies to the goods.

The first two rules for interpretation set out in Sch 1 are the following:--

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 to 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.

(2) A reference in an item (including a reference in a sub-item, paragraph or sub-paragraph) to a material or substance shall be read as including a reference to a mixture or combination of that material or substance with another material or substance or with other materials or substances.

Section 229(1)(b) of the Customs Act provides that all prohibited imports "shall be forfeited to the Crown". There has as yet been no seizure of the "vehicles".

What happened in this case among the customs officials was that a query memorandum was raised (in relation to both items, which had been entered as "bodies"), and the decision, apparently that of a senior tariff officer, was noted in a brief notation on that memorandum (Ex C):--

(1) 87.02.119 applies per S.T.O.

(2) Import licences required.

B Murphy

SI AUX

22/9/82

It would appear that there were at that time a series of notations on the document. On the obverse side:--

Referred to Tariff re poss classn to TI 87.02.1 and Imp. Licensing.

(initials) I6/9

See over.

(signed B E Walker)

S.T.O.

21/9/82

On the reverse side there were two numbered entries:--

(1)

Examination revealed that the vehicles are motor cars complete without their engine and gear box. Accept 87.02.119.

(signed B E Walker)

S.T.O.

21/9/82

Please refer Inspector Administration re Import Licensing.

(signed B E Walker)

S.T.O.

21/9/82

(2)

Goods are subject to Import Licensing.

(signed B Murphy)

SI AUX 22/9

There is no evidence that a licence was obtained, or sought.

It is doubtful whether Mr Walker, who seemingly made most of the notations, made the decision. The document suggests to me that Mr Murphy did. Mr Walker gave evidence explaining why, in his view, the imported goods were not "bodies", but came within para 87.02.11 and sub-para 87.02.119. This meant that in his view, which was accepted by Mr Murphy, the goods were "assembled" motor vehicles. No argument was presented as to the meaning of the phrase "passenger motor vehicles" in para (f) of cl 5 of the exception notice, the submission being related to the view expressed in the documents that sub-para 87.02.119 applied.

The first and principal submission is that the decision that the imports were prohibited is not open to review under the Judicial Review Act. The argument is that it was for the customs officer, exclusively, to decide which item of the Tariff applied (I use "item" in a general sense) and, therefore, whether the goods were prohibited imports, and forfeited to the Crown. It was said that the whole matter was one of fact, and reference was made to Hope v Bathurst City Council (1980) 29 ALR 577 ; 144 CLR 1 and Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW ) ( No 2 ) (1980) 47 FLR 131 ; 3 ALD 38. It is to be recognized that the submission has two aspects:--

(a)

that the decision was one of fact; and

(b)

that the decision is not open to review.

Neither aspect is, in my view, correct.

There can be extended argument about whether a question is one of fact, or of law, or of mixed fact and law, and of course there are academic discussions about the fundamental distinctions. Separate questions arise as to the extent of judicial review. One general proposition which can be stated with confidence is that the construction of legislation is a matter exclusively for the courts. A power in someone to determine facts, no matter how widely the power is expressed, or with what seemingly conclusive effect, does not remove this jurisdiction from the courts. It is, however, important to bear in mind a distinction between the meaning of the words used, and their application. In relation to the latter, some individual or tribunal might be given very wide powers. It may be, for example, that, according to the proper construction of the relevant legislation, his or its opinion or decision might be virtually conclusive, subject only to such powers of review as might be left in the courts.

If the court were to decide that words in the Schedule such as "motor car" or "assembled" are used according to their ordinary meaning, it does not follow that the decision of a tariff officer applying these in a particular case, will be regarded as beyond challenge. In fact, under the Judicial Review Act, such a decision is never entirely beyond challenge under one or more of the paragraphs of s 5(1). It may appear that a wrong understanding of the language of the Tariff was applied, or that the decision could not reasonably be reached on the facts (see s 5(1)(f) and (h)).

It is argued in the present case that the relevant language used in the Tariff is ordinary plain English, and that the tariff officers therefore have the exclusive power to apply it. Courts spend much of their time construing "plain English" for purposes in hand. Put more directly, and in relation to this case, it is for the court to determine whether the language in question is used according to its common understanding (see NSW Associated Blue Metal Quarries Ltd v FC of T (1956) 94 CLR 509 at 511-12, per Kitto J). There are very many cases where seemingly plain words have, for good reason, been given unexpected (one may say "technical") meanings. One old example is where the words "single woman" were construed to include "married woman" in some circumstances (see Jones v Evans [1944] KB 582).

In a complex Tariff, with many divisions and sub-divisions and many definitions, or descriptions, shades of meaning are bound to arise and to effect conclusions. The meaning of the words "motor car" and "assembled" in the Tariff are, in my view, affected by the context in which they appear.

Except where a particular rule otherwise expressly provides, the rules for the interpretation of Sch 1 are mandatory. It appears from s 14(1) and from interpretative r 1(3) that the first step is to make a selection between items, and, once that is done, to make a selection between sub-items. This is not to say that the language of any specific provision should be forced. Interpretative r 4 provides that: "Where goods do not fall within any item, the item that applies to the goods is the item that applies to goods that are most akin to those goods."

The goods are to be classified according to the state in which they are at the time of the Customs entry. This is not to say history, or purpose or intention, are to be excluded; sometimes the description used in the Tariff will require some inquiry concerning these matters.

Counsel for the appellants, seeking to apply interpretative r 2(1)(a), submits that the goods in question were "imported in an incomplete or in an unfinished state, but have the essential character ... [of] vehicles of a kind operated by self-contained power, being motor cars ... assembled". I doubt that what was imported could properly be described as "incomplete" or "unfinished" in any sense. Cars were to be created, but by modification of the bodies and by inserting modified engines, the work being done in Australia, so as to create a special vehicle to be known under a different name (Alpina). Further, it does not seem to me to be consistent with the general scheme of the Sch 1 of the Tariff, or to accord with any reasonable construction of the particular sub-item and paragraph, to regard the goods in question as having the afore-mentioned essential character. They lacked major essential items. The rule in question, in my view, is concerned only with situations in which some minor part or feature is absent. To say that, while lacking engines and gearboxes they nevertheless had the essential character of assembled motor cars, seems to me to be a contradiction in terms.

So far as concerns the application of r 2(1)(b), it is my view that the goods cannot be regarded as unassembled or disassembled. For that reason I need make no comment on whether any aspect of item 87.02 deals with "unassembled" vehicles of a kind operated by self-contained power, other than to say that sub-item 87.02.1 does not do so.

The result is, in my view, that sub-para 87.02.119 does not apply, and the goods are not prohibited imports.

Returning to the principal submission, that the decision was for the customs officer, and not open to challenge, there are several answers. In the first place, the Tariff is not expressed in ordinary plain English within the meaning of the principle relied upon, so that an understanding and application of it can be regarded as a single question of fact, to be decided finally by the customs officer. As I have indicated, the word "assembled" has a meaning qualified by the meaning and scope of other provisions of the Tariff. There is what is commonly called a mixed question of law and fact. Even if the decision were to be regarded as involving fact only, there is the circumstance that the relevant facts are known, and not in dispute. This brings into operation the principle stated by Mason J (with whose judgment the other members of the court agreed) in Hope (29 ALR at 581 ; 144 CLR at 7): "Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v FC of T (1956) 96 CLR 47 at 51, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees [1915] AC 922 at 932), which was adopted by Latham CJ in FC of T v Miller (1946) 73 CLR 93 at 97, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only."

There is then a question as to whether review is available under the Judicial Review Act. It seems to me that it is. There was, in my view, an error of law (s 5(1)(f)). I think it probable that there was also a breach of para (h), that is, that there was no evidence or other material to justify the making of the decision (see also s 5(3)), but it is not necessary to pursue this matter.

I would therefore dismiss the appeal, with costs.