Re Honourable Andrew Peacock Minister of Industry and Commerce and the Collector of Customs of New South Wales v Thomas

(1983) 77 FLR 47

---

(Judgment by: Fox J, Franki J, Lockhart J)

Re Honourable Andrew Peacock Minister of Industry and Commerce and the Collector of Customs of New South Wales
vThomas

Court:

Judges:
Fox J
Franki J
Lockhart J

Subject References:
Administrative Law
Decision that goods are prohibited imports
Submission that decision not reviewable
Facts not in dispute
Questions of law and questions of fact
Roles of Court and decision maker

Legislative References:
Administrative Decisions (Judicial Review) Act 1977 - s 5
Customs Act 1901 - s 50; s 203; s 229(1)(b)
Customs Tariff 1966 - s 14
Customs Tariff Amendment Act 1980 - Schedule 8, item 283
Customs Tariff Amendment Act 1982 - Schedule 6, item 9
Customs (Import Licensing) Regulations - r 7; r 17(1)

Case References:
Whitton (Collector of Customs for Victoria) v Falkiner - [1915] HCA 38; (1915) 20 CLR 118
Lombardo v Federal Commissioner of Taxation - [1979] FCA 66; (1979) 40 FLR 208
Hope v Council of City of Bathurst - [1980] HCA 16; (1980) 144 CLR 1
Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (No 2) - [1980] FCA 96; (1980) 47 FLR 131
Brutus v Cozens - [1972] UKHL 6; (1973) AC 854

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

Sydney

---

Judgment by:
Fox J
Franki J
Lockhart J

DECISION

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 Part II of Schedule 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, Schedule 8, item 283 and Customs Tariff Amendment Act 1982, Schedule 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, Schedule 6, item 9, operates to delete paragraph 87.02.12 and its two sub-paragraphs as they were in the Customs Tariff Amendment Act 1980, Schedule 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 Schedule 1 is preceded by what are called Chapter Notes, which have statutory force. Those here relevant are numbers 9 and 10 of Chapter 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, Schedule 18, item 12 and Customs Tariff Amendment Act 1982, Schedule 6, item 7.)

Section 14 of the Customs Tariff ("Tariff") authorises rules for interpretation of Schedule 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 Schedule 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 (Exhibit "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) 16/9"

"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 paragraph 87.02.11 and sub-paragraph 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 clause 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] HCA 16; (1980) 144 C.L.R. 1 and Blackwood Hodge (Australia) Pty. Ltd. v. Collector of Customs (N.S.W.), No. 2 [1980] FCA 96; (1980) 47 F.L.R. 131, 3 A.L.D. 38. It is to be recognised 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 s.5(1)(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 N.S.W. Associated Blue Metal Quarries Limited v. Federal Commissioner of Taxation [1956] HCA 80; (1955) 94 C.L.R. 509 at pp.511-512, 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) K.B. 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 Schedule 1 are mandatory. It appears from s.14(1) and from interpretative rule 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 rule 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 rule 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 Schedule 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 aforementioned 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 gear boxes 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 rule 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 at p.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. Cotton's Trustees ((1915) A.C. 992, at p.932) which was adopted by Latham C.J. in Commissioner of Taxation v. Miller ((1946) [1946] HCA 23; 73 C.L.R. 93, at p.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.

This is an appeal by the Minister of Industry and Commerce 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 B.M.W. 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 chapter 87 of schedule 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 number 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 chapter 87 of the Customs Tariff Act at the relevant time. Before us procisely 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 chapter 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.

"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, battery operated vehicles or air-cushion vehicles), being -

(a)

motor cars;

(b)

station wagons; or

(c)

derivatives of motor or station wagons:

87.02.11 - - Assembled:

87.02.111 - - - As prescribed by by-law 95.5% 95.5%

87.02.119 - - - Other 57.5% 57.5%

87.02.12 - - Unassembled:

87.02.121 - - - As prescribed by by-law 25% 25%

87.02.129 - - - Other 35% 35%"

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

"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 95.5% 95.5%

87.02.112 - - - As prescribed by by-law 131.5% 131.5%

87.02.119 - - - Other 57.5% 57.5%"

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 schedule 1 of the Customs Tariff Act do the imports fall? Section 14 of the Customs Tariff Act makes provision that Part 1 of Schedule 1 to it sets out interpretative rules for the interpretation of the rest of schedule 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 chapter 87 which are made relevant by interpretative rule 1(2). I have had some considerable difficulty in ascertaining what are all the currently existing interpretative rules in part 1 of schedule 1 and the currently existing notes at the commencement of chapter 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-paragraph 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 paragraph 87.02.11 because it is perfectly clear that sub-paragraph 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-paragraphs 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 rule 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 rule 2(1)(b) the question is whether, if assembled, they would be goods to which paragraph (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 gear box 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 rule 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 chapter 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-paragraph 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 authorised 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 the transport of persons of a kind operated by self-contained power where that article did not contain an engine and gear box 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 C.J. in Lombardo v. Federal Commissioner of Taxation [1979] FCA 66; (1979) 28 A.L.R. 574 at p.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 authorised 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-paragraph 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.

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: Regulation 7. The Minister may except from the application of the Regulations any goods or any goods included in a class of goods: Sub-Regulation 17(1). By Exception Notice No. M61 the Minister proclaimed that in pursuance of the power conferred upon him under Regulation 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 Part II of Schedule 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 Chapter 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 sub-rule 1(3) of the Rules for the Interpretation of Schedule 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 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.

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-paragraph (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 (sub-regulation 7(a)) and are prohibited imports (para. 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 rule 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 rule 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 rule 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 rule 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 Chapter 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-paragraph 87.02.11. He conceded that this result could be achieved only with the assistance of interpretative rule 2(1). It is not strictly necessary to pursue this submission in view of the conclusion I have reached that paragraph 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 paragraph 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-paragraph 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 rule 2(1)(a)). I rely also on what I said earlier as to interpretative rule 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. Council of the City of Bathurst [1980] HCA 16; (1980) 144 C.L.R. 1 per Mason J. (at pp. 6-8); Blackwood Hodge (Australia) Pty. Limited v. Collector of Customs, New South Wales (No. 2) [1980] FCA 96; (1980) 3 A.L.D. 38 per Fisher J. (at pp. 49-51) and Sheppard J. (at pp. 55-56); and Brutus v. Cozens [1972] UKHL 6; (1973) A.C. 854 especially per Lord Reid (at p.861) 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 (Collector of Customs for Victoria) v. Falkiner [1915] HCA 38; (1915) 20 C.L.R. 118 per Isaacs J. (at p.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.