FC of T v SMITH & NEPHEW PTY LIMITED

Judges: Jenkinson J
Beaumont J

Beazley J

Court:
Full Federal Court

Judgment date: Judgment handed down 26 August 1994

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Beazley J

I have had the opportunity of reading the judgments of Jenkinson and Beaumont JJ and agree that the appeal should be dismissed. It is sufficient that I state my reasons in brief.

The dictionary meaning of ``surgical'' referred to by Hill J has been set out in the judgment of Beaumont J. Counsel for the appellants did not rely on the dictionary definition but submitted that the phrase ``surgical appliances''

``... has a recognised meaning in Australian usage: a device designed to support a damaged or deformed part of the body. In its common usages, a surgical appliance is something worn for that purpose; the context of Item 42 indicates a broader conception of devices, whether worn or otherwise so used.''

Counsel for the appellants further submitted that each of the sub-paragraphs of Item 42 fall within the broader conception. He referred, by way of example, to gauze and lint which are found within subparagraph (1) and bandages which are found within subparagraph (7), which are used to wrap and protect (and thereby support) a damaged body part. It was submitted however, that cotton buds did not fall within the broadest conception of surgical appliance. Rather, it was submitted, they were used for application purposes and could not be used for support, as was the case with absorbent cotton wool, lint and gauze which could be used for padding and bandaging.

In my opinion, this argument is selective and thus too narrow. It focuses upon the ``support'' function or use to which items within some of the subparagraphs may be put so as to sustain an argument that cotton buds fall outside the exemption. It fails to recognise other uses to which goods such as cotton wool, gauze and lint may be put. That, of itself, may not be fatal to the submission. However, the submission also fails to recognise that there are some goods specified within Item 42, which do not fall within the description of ``surgical appliances'' - bandage winders (also within subparagraph 7), first-aid outfits (subparagraph 7A) and wigs (subparagraph 17) are obvious examples. In my opinion, Hill J was correct in his view that to make Item 42 have any sensible operation, it is not necessary that, to fall within the exemption, an item must fall within one of the subclauses of the Item as well as fall within the description of ``surgical appliance''. I also agree that the phrase ``surgical appliances'' provides the context in which the goods referred to in the subclauses are to be interpreted. As Hill J stated [at 5218]:

``Cotton wool lengths, cotton wool balls or cotton buds are in truth but different ways of offering cotton wool for sale.''

The question therefore is whether cotton buds fall within Item 42(2), that is, whether they are absorbent cotton wool. I agree with Jenkinson and Beaumont JJ that Hill J's decision and his reasoning in this regard is correct. It follows that I reject the submission that the fact that the cotton is wound around a stick makes the buds a different product from and deprives them of their essential character as cotton wool. Accordingly, I would dismiss the appeal.

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.