COLLECTOR OF CUSTOMS v AGFA-GEVAERT LIMITED

Judges:
Brennan CJ
Dawson J
Toohey J
Gaudron J
McHugh J

Court:
High Court of Australia

Judgment date: 10 December 1996

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Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ

Introduction

This appeal is brought against an order of the Full Court of the Federal Court of Australia setting aside a decision of the Administrative Appeals Tribunal (``the Tribunal'') that held that certain goods imported by Agfa-Gevaert Limited (``Agfa''), the respondent, were not free of import duty because they did not fall within a Commercial Tariff Concession Order (``CTCO'').

The principal question in the appeal is whether the Full Court erred in finding that it is an error of law to construe a phrase in a

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legislative instrument by giving a trade meaning to some words in the phrase and the ordinary meaning to the rest of the words in the phrase. Questions also arise as to whether the Full Court was correct in holding that the Tribunal had erred in law in construing the meaning of two expressions in a statutory instrument.

The statutory framework

At the relevant time, s 269C of the Customs Act 1901 (Cth) (``the Customs Act'') provided for the making of CTCOs and s 25 and Item 50 of Pt III of Sched 4 to the Customs Tariff Act 1987 (Cth) (``the Tariff Act'') operated so as to provide that goods that a CTCO declared were goods to which Item 50 applied were to be free of duty. Each CTCO in issue in this matter declared the goods that it identified were goods to which Item 50 applied.

The factual background

Under CTCO 8340417, Agfa imported CR312 Reversal Paper, a positive to positive photographic paper developed by a chromogenic process. This CTCO described the relevant goods as:

``PAPER, colour, in sheets or rolls, silver dye bleach reversal process, with the image dyes incorporated in the emulsion layers, coated on a resin coated paper base, for the production of positive to positive colour prints.''

On 16 October 1987, Agfa, anticipating the cancellation of CTCO 8340417, wrote to the Comptroller-General of Customs applying for a new CTCO in the same terms as CTCO 8340417. On 28 January 1988,^[1] Gazetted on 24 February 1988. new CTCOs 8735089 and 8735090 (``the CTCOs in dispute'') were made in terms that were very similar to CTCO 8340417, the material differences between them being the omission of the words ``for the production of positive to positive colour prints'' and the substitution of the word ``having'' for the word ``with''. Agfa continued to import its CR312 Reversal Paper under these CTCOs.

On 17 December 1990, Agfa sent an application for a tariff advice to the Collector of Customs (``the Collector''), the appellant, to ascertain whether its ``Agfacolour'' Type 8 and Type 9 papers fell within the CTCOs in dispute. The Collector advised Agfa that the new CTCOs - the CTCOs in dispute - covered Type 8 and Type 9 papers. Agfa proceeded to import these papers under the provisions of these CTCOs. On 11 November 1991, the Collector wrote to Agfa advising it that he had reviewed his previous advice and had concluded that the Type 8 and Type 9 papers were not eligible for the tariff concession provided by the CTCOs in dispute and that the previous advice was accordingly ``voided''. On 9 December 1992, these CTCOs were revoked.

If the Type 8 and Type 9 photographic papers imported by Agfa fell within the terms of the CTCOs in dispute, they were goods to which Item 50 in Pt III of Sched 4 of the Tariffs Act applied and should have been passed as free of import duty pursuant to s 25. If Item 50 did not apply, the goods were liable to duty at the rate in force when they were first entered for home consumption under the applicable heading of the Tariffs Act.

The dispute between the parties turns on whether the Type 8 and Type 9 papers fall within two of the phrases in the CTCOs in dispute. Those phrases are:

• • ``silver dye bleach reversal process''; and
• • ``having the image dyes incorporated in the emulsion layers''.

For Agfa's Type 8 and Type 9 paper to come within Item 50, they must fall within each of these phrases in the CTCOs. In our opinion, the Tribunal made no error of law in holding that that paper did not come within the phrase ``silver dye bleach reversal process''. It is therefore unnecessary to determine whether the Tribunal erred in law in holding that Agfa's Type 8 and Type 9 papers did not fall within the phrase ``having the image dyes incorporated in the emulsion layers''.

The process used by Agfa in respect of Type 8 and Type 9 papers

The Type 8 and Type 9 papers receive and reproduce an image on their surface from a colour negative film. Coated on the papers are emulsion layers containing a silver halide which is reduced to silver during the process. Later in the process, the silver is oxidised by a bleach and the silver salt is dissolved and washed off the paper. On the paper are three emulsion layers each of which is sensitive to one of three colours because of the presence in each layer of a substance called a colour coupler. The coupler reacts chemically with the developer by which the silver halide was reduced. A dye of the colour complementary to the primary colour is then deposited in the layer.

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The proceeding in the Tribunal

Agfa applied to the Tribunal to review the decision of the Collector to accept the payment of duty made under protest in respect of goods imported into Australia on 22 January 1992 under the CTCOs in dispute. This payment was in accordance with the rate specified in Sched 3 to the Tariffs Act. The Tribunal affirmed the Collector's decision.

The Tribunal's finding as to the meaning of ``silver dye bleach reversal process''

Jenkinson J found, and it was not disputed before him, that, in the photographic trade and among members of the wider community of persons interested in photographic film processing technology, the phrase ``silver dye bleach process'' was understood as a reference to the process by which a particular photographic paper sold under the name ``Ilfochrome'' was treated to develop a photograph on that paper. However, the phrase ``silver dye bleach reversal process'', the phrase used in the CTCOs in dispute, had no trade or technical meaning. His Honour said:

``On the whole of the evidence relating to the expression `silver dye bleach reversal process' I am inclined to think that the words `silver dye bleach' should be given the meaning which usage indicates and that the word `reversal' is to be understood as meaning that reversal of image which occurs in the process of producing a positive print on paper from a positive film. A reversal in that sense occurs in the process of producing an image on paper by the Ilfochrome process and in the process of producing an image on paper by the process called colour reversal.''

His Honour held that the process used in respect of Agfa's Type 8 and Type 9 papers did not fit the description ``silver dye bleach''. He also held that, because the term ``reversal'' in the disputed CTCOs referred to the process of producing a positive print from a positive film, it did not describe the process used in respect of Agfa's Type 8 and Type 9 papers.

The appeal to the Full Court

Agfa appealed to the Full Court (Ryan, Gummow and French JJ) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (``the Tribunal Act'') which is limited to appeals on questions of law. Each judge, in separate reasons, upheld the appeal.<sup>[2]</sup> Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 . The Collector contended that the decision of the Tribunal was unreviewable because Jenkinson J had not committed any errors of law in determining the meaning of the phrases ``silver dye bleach reversal process'' and ``image dyes''. The Full Court unanimously rejected this submission.

The Court identified the error of law in respect of the phrase ``silver dye bleach reversal process'' as the construction of the composite phrase as a combination of ordinary and trade meanings. The reasoning of Ryan J was typical of all three judges. His Honour said:^[3] Agfa-Gevaert (1994) 124 ALR 645 at 646; see also 651 per Gummow J, 663 per French J.

``It is impermissible, as a matter of law, I consider, to adopt a differential interpretation of a composite phrase by isolating part of the phrase and according to it the technical or customary meaning which that part, standing alone, can be found, on the evidence, to bear and then construing the balance of the phrase according to the ordinary English meaning of the word or words comprising it.... [O]nce it became apparent on the evidence that the resultant composite phrase had no accepted meaning within the relevant technical or trade community, it was incumbent on the Tribunal to identify, as a matter of fact, the meaning of the composite phrase as a collection of ordinary English words.''

This finding was predicated upon a depiction of Jenkinson J's approach to the composite phrase as involving the combination of the trade meaning of ``silver dye bleach'' and the ordinary meaning of ``reversal''. Because there was no evidentiary finding by the Tribunal as to the ordinary English meaning of the phrase construed as a whole, the Court referred the matter back to the Tribunal to determine this question as an issue of fact.

The distinction between questions of fact and questions of law

In this Court, the Collector again submitted that the relevant findings of the Tribunal did not raise any questions of law that could found an appeal under s 44 of the Tribunal Act. Hence, the first issue in the appeal is whether the Full Court was correct in finding that the decision of the Tribunal was vitiated by an error of law.

The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by

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many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. In Hayes v FC of T,^[4] (1956) 11 ATD 68; (1956) 96 CLR 47. Fullagar J emphasised the distinction between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). His Honour said:^[5] Hayes (1956) 11 ATD 68 at 70; (1956) 96 CLR 47 at 51.

``... Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.''

In Collector of Customs v Pozzolanic,^[6] (1993) 43 FCR 280. the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon ``value judgement[s] about the range of [an] Act'' which, the Court said, necessarily raised questions of law.^[7] Pozzolanic (1993) 43 FCR 280 at 289.

Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic,^[8] (1993) 43 FCR 280 at 287. See also Collector of Customs v Bell Basic Industries (1988) 20 FCR 146 at 157 citing Re Pacific Film Laboratories (1979) 2 ALD 144 at 155 . after referring to many cases, the Court identified five general propositions:

``1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.^[9] Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491 ; Brutus v Cozens [1973] AC 854 .

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.^[10] Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 ; NSW Associated Blue-Metal Quarries Ltd v FC of T (1955-1956) 11 ATD 50 at 52; (1955-1956) 94 CLR 509 at 512 ; Neal v Department of Transport (1980) 3 ALD 97 at 107-108 ; Jedko (1987) 12 ALD 491.

3. The meaning of a technical legal term is a question of law.^[11] The Australian Gas Light Co v The Valuer-General (1940) 40 SR(NSW) 126 at 137-138 ; Lombardo v FC of T 79 ATC 4542 at 4547; (1979) 40 FLR 208 at 215 .

4. The effect or construction of a term whose meaning or interpretation is established is a question of law.^[12] Life Insurance Co of Australia (1925) 36 CLR 60 at 79.

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.''

^[13] Hope v The Council of the City of Bathurst 80 ATC 4386 at 4389; (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277 per Sheppard and Burchett JJ.

In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact.^[14] Pozzolanic (1993) 43 FCR 280 at 288 citing Hope 80 ATC 4386 at 4390; (1980) 144 CLR 1 at 8.

Such general expositions of the law are helpful in many circumstances. But they lose a degree of their utility when, as in the present case, the phrase or term in issue is complex or the inquiry that the primary decision-maker embarked upon is not clear. Thus, the phrase ``silver dye bleach reversal process'' is not easily pigeon-holed in terms of the general rules summarised in Pozzolanic because Jenkinson J construed the phrase by reference to the trade or technical meaning of ``silver dye bleach process'' and the ordinary meaning of ``reversal''.

However, for present purposes, it is the distinction between the second and fourth of the five propositions formulated in Pozzolanic^[15] (1993) 43 FCR 280 at 287. which creates the greatest difficulty. The second proposition states that the ordinary or non-legal technical meaning of a word is a question of fact while the fourth proposition states that the effect or construction of a term whose meaning or interpretation is established is a question of law. The strongest support for the distinction between meaning (a question of fact) and construction (a question of law) is found in the judgment of Isaacs J in Life Insurance Co of Australia Ltd v Phillips^[16] (1925) 36 CLR 60 at 78. where his Honour said:

``Very different consequences attach according as the ambiguity rests in construction or in interpretation. Lindley LJ in Chatenay v Brazilian Submarine Telegraph Company<sup>[17]</sup> [1891] 1 QB 79 at 85. employs the same word `construction' for both ideas, but keeps the ideas distinct. He says:- `The expression ``construction,'' as applied to a document, at all events as used by English lawyers, includes two things: first, the meaning of the words; and, secondly, their legal effect, or the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the words is a question of law.' The `meaning of the words' is what I call interpretation, whether the words to be interpreted into ordinary English are foreign words or code words or trade words or mere signs or even ordinary English words which on examination of surrounding circumstances turn out to be incomplete. Their effect when translated into complete English is construction. If that distinction be borne in mind very little difficulty remains.''

With respect this distinction seems artificial, if not illusory. The meaning attributed to

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individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown,^[18] [1996] 2 WLR 203 at 218; [1996] 1 All ER 545 at 560. a recent House of Lords decision, Lord Hoffmann said:

``The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence.... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.''

If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.

However, it is not necessary to resolve this issue in determining whether Jenkinson J's decision as to the phrase ``silver dye bleach reversal process'' raised any appealable questions of law. This is because of one concession made in argument and one principle of law that is not disputed. The concession was made by Mr Buchanan QC, for the Collector, who conceded that the determination of whether a phrase is a composite phrase or not is ``probably... in the end'' always a question of law. The principle, which we think made the concession inevitable, is that the determination of whether an ``Act uses [an] expression... in any other sense than that which they have in ordinary speech'' is always a question of law.^[19] NSW Associated Blue-Metal Quarries (1955-1956) 11 ATD 50 at 52; (1955-1956) 94 CLR 509 at 511-512.

With this in mind, it is apparent that Jenkinson J's finding that:

``On the whole of the evidence relating to the expression `silver dye bleach reversal process' I am inclined to think that the words `silver dye bleach' should be given the meaning which usage indicates and that the word `reversal' is to be understood as meaning that reversal of image which occurs in the process of producing a positive print on paper from a positive film''

raised a question of law. However one characterises the ``structure'' of this composite phrase in terms of the interplay of the descriptors of ordinary meaning and trade meaning - for example, either a combination of two trade meanings or a trade meaning qualified by a word to be understood in its ordinary sense - or whether these descriptors have any beneficial role to play in such an inquiry at all - is not relevant at this point. All that is required for a reviewable question of law to be raised is for a phrase to be identified as being used in a sense different from that which it has in ordinary speech. It is clear that Jenkinson J treated the phrase ``silver dye bleach reversal process'' as a composite one whose meaning depended on evidence. Whether he was correct in doing so therefore raises a question of law.

The correct construction of ``silver dye bleach reversal process''

The Collector contends that a court or tribunal makes no error of law in determining the construction of a phrase merely because it applies a trade meaning to some only of the words in that phrase. Agfa, on the other hand, contends that if the whole of the expression does not have a ``definite commercial designation different from [its] ordinary meaning''^[20] Whitton v Falkiner (1915) 20 CLR 118 at 127 . the expression must be construed as a whole according to the words' ordinary meaning.

It is convenient at this stage to note that, for the purposes of interpreting the relevant phrases, the CTCOs should be considered as a species of delegated legislation.^[21] For a discussion of the meaning of ``delegated legislation'', see Pearce, Delegated Legislation in Australia and New Zealand , (1977) at 1-3. The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation.<sup>[22]</sup> Pearce, Delegated Legislation in Australia and New Zealand , (1977) at 286. To use the words of Dixon J, ``subordinate or delegated legislation... [stands] on the same ground as an Act of Parliament and [is] governed by the same rules of construction''.^[23] King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195 .

Because the CTCOs are governed by the rules of statutory construction, the speech of Lord Simon of Glaisdale in Maunsell v Olins^[24] [1975] AC 373 at 391. is a useful starting point in determining the construction of the instruments. His Lordship said:

``Statutory language, like all language, is capable of an almost infinite gradation of `register' - ie, it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the

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man in the street, lawyers, merchants, etc). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.''

When construing revenue statutes that utilise trade or technical terms, therefore, the law generally favours interpretation of the terms as they are understood in the trade to which the statute applies. In Herbert Adams Pty Ltd v FC of T,^[25] (1932) 2 ATD 31 at 33; (1932) 47 CLR 222 at 227. See also Whitton (1915) 20 CLR 118 at 127; Bell Basic Industries (1988) 20 FCR 146 at 156-157; Holt & Co v Collyer (1881) 16 Ch D 718 at 720 ; Unwin v Hanson [1891] 2 QB 115 at 119-120 . Dixon J said:

``... A revenue law directed to commerce usually employs the descriptions and adopts the meanings in use among those who exercise the trade concerned.''

The courts have also said that it may be less difficult to establish a trade meaning which extends the ordinary meaning of an expression than one which limits the ordinary meaning in a specialised way.^[26] Herbert Adams (1932) 2 ATD 31 at 33-34; (1932) 47 CLR 222 at 228-229; Bell Basic Industries (1988) 20 FCR 146 at 157-158. However, the ``presumption'' in favour of trade meaning in revenue statutes does not deny the possibility that words used in a revenue statute directed to commerce are to be understood in their ordinary meaning.^[27] D & R Henderson v Collector of Customs for NSW (1974) 48 ALJR 132 ; Bell Basic Industries (1988) 20 FCR 146 at 157.

In their own ways, both the Collector and Agfa relied upon the distinction between trade meaning and ordinary meaning to construe the expression ``silver dye bleach reversal process''. Agfa, of course, relied on the ordinary meaning of the phrase while the Collector focused on its trade meaning. However, Agfa conceded that, without some assistance from the ``technological context'' or ``technological background'' of the issues involved, the phrase in issue was, in terms of its ordinary meaning, meaningless. While denying the validity of any recourse to the trade meaning of certain words within the composite phrase, it contended that, when account was taken of this technological background, the words had an ordinary meaning as opposed to a trade meaning. Moreover, Agfa contended that the ordinary construction of the phrase accommodated its Type 8 and Type 9 paper.

The problem with Agfa's submission is that it ostensibly denies the appropriateness or relevance of the very pool of knowledge upon which, in substance, it relies. That is to say, the reliance on technological background or context, which Agfa submits is permissible when construing the ordinary meaning of words, is inconsistent with its submission that, in construing composite phrases, it is impermissible to take account of the trade meaning of certain words in that phrase.

Agfa resisted the invitation of this Court to outline conclusively the options open to the Tribunal in construing the term as a whole if the case was remitted to it. However, it contended that the expression ``silver dye bleach reversal process'' described Agfa's paper because its paper did involve a process the stages of which could be described as ``silver'', ``dye'', ``bleach'' and finally ``reversal''.

In Exxon Corporation v Exxon Insurance Ltd,^[28] [1982] Ch 119. the English Court of Appeal had to consider whether the made-up trade name ``Exxon'' was an ``original literary work'' within the meaning of s 2(1) of the Copyright Act 1956 (UK). The Court accepted that it was original, that it was literary in the sense that it was composed of letters and had a written form, and that it was a work because much time and effort had been expended in inventing it. Nevertheless, the Court held that it was not an ``original literary work''. As Oliver LJ put it:^[29] Exxon [1982] Ch 119 at 144. See also Lee v The Showmen's Guild of Great Britain [1952] 2 QB 329 at 338 ; Bennion, Statutory Interpretation , 2nd ed (1992) at 830-831.

``But `original literary work' as used in the statute is a composite expression, and for my part I do not think that the right way to apply a composite expression is, or at any rate is necessarily, to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts. In my judgment it is not necessary, in construing a statutory expression, to take leave of one's common sense.''

Significantly in our opinion, Agfa's argument required the Tribunal to deny itself any recourse to common-sense in construing the expression ``silver dye bleach reversal process''.<sup>[30]</sup> Appeals to ``common-sense'' in matters of statutory construction is neither a recent nor uncommon invocation. See, for example, Cooper Brookes (Wollongong) Pty Ltd v FC of T 81 ATC 4292 at 4305; (1980-1981) 147 CLR 297 at 320 ; Gardner v Jay (1885) 29 Ch D 50 at 58 ; Barnes v Jarvis [1953] 1 WLR 649 at 652; [1953] 1 All ER 1061 at 1063 ; R v Miller [1982] QB 532 at 540 ; Lambert v Ealing London Borough Council [1982] 1 WLR 550 at 555; [1982] 2 All ER 394 at 397 ; Din v Wandsworth London Borough Council [1983] 1 AC 657 at 682 ; Bennion, Statutory Interpretation , 2nd ed (1992) at 407-411. While it contended that the Tribunal could rely on the technological background and context in determining the ordinary meaning of the expression construed as a whole, Agfa denied that the Tribunal could inform itself of the trade meaning of some of the words which make up

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the expression. However, there seems no good reason for denying trade usage a role in determining the meaning of distinct elements of composite phrases where the phrase, taken as a whole, does not have a trade meaning. In an appropriate case, and this is one, such knowledge enables courts and tribunals to tune into the most appropriate ``register''^[31] Maunsell [1975] AC 373 at 391. for the purposes of statutory interpretation.

Agfa's contention demonstrates the danger in relying on the strict rule of statutory interpretation of composite phrases which it seeks to propound.^[32] On the dangers of such an approach, see, for example, Cooper Brookes (Wollongong) 81 ATC 4292 at 4305; (1980-1981) 147 CLR 297 at 320. Such a rigid rule of interpretation seem at odds with the ``golden rule'' of interpretation propounded by Lord Simon of Glaisdale in Maunsell.^[33] [1975] AC 373. The CTCOs in dispute were addressed to a subject and an audience that was concerned with photographic film processing. That being so, a court or tribunal should strive to give the CTCOs the meaning that that audience would give them.

Trade meaning and ordinary meaning do not necessarily stand at opposite extremities of the interpretative register. Professor Glanville Williams has described the distinction between primary (ordinary) meaning and secondary (trade) meaning as the distinction between, on the one hand, the ``most obvious or central meaning'' of words, and on the other hand, ``a meaning that can be coaxed out of the words by argument''.^[34] Glanville Williams, ``The Meaning of Literal Interpretation — I'', (1981) 131 New Law Journal 1128 at 1129. Similarly, Professor Driedger describes this distinction as being that between ```the first blush' grammatical and ordinary sense... [and] the `less' grammatical and `less' ordinary meaning''.<sup>[35]</sup> Driedger, ``Statutes: The Mischievous Literal Golden Rule'', (1981) 59 Canadian Bar Review 780 at 785-786. See also Cross on Statutory Interpretation , 3rd ed (1995) at 72-92. Given this lack of necessary dissimilarity, there appears to be little reason for a rigid rule that disallows recourse to the trade meaning of a word that forms part of a composite phrase.

No doubt there are cases where a court or tribunal must interpret a composite phrase by reference to the ordinary meaning of the words taken as a whole without recourse to the trade meaning that one or more of its words may have. Much depends on the subject matter and context of the phrase. In the area of statutory interpretation and construction, courts must be wary of propounding rigid rules. Even the use of general rules carries dangers in this area because of the tendency for such rules to be given an inflexible application.^[36] Cooper Brookes (Wollongong) 81 ATC 4292 at 4305; (1980-1981) 147 CLR 297 at 320. Nevertheless, when construing a composite phrase which does not have a trade meaning, it will ordinarily make sense for a court or tribunal to take notice of the trade meaning of a word or words within that expression, provided such an interpretation does not lead to a result which is absurd^[37] See Bennion, Statutory Interpretation , 2nd ed (1992) at 679-710. in the sense that the result may be unworkable or impracticable,^[38] See R v Camphill Deputy Governor [1985] QB 735 at 751 ; Sheffield Council v Yorkshire Water Ltd [1991] 1 WLR 58 at 72; [1991] 2 All ER 280 at 292 . inconvenient,^[39] See Shannon Realties v St Michel (Ville de) [1924] AC 185 at 192-193 ; Income Tax Commissioners for City of London v Gibbs [1942] AC 402 at 414 ; Jones v Director of Public Prosecutions [1962] AC 635 at 662 ; Lawrence Chemical Co v Rubinstein [1982] 1 WLR 284 at 291; [1982] 1 All ER 653 at 658 . anomalous or illogical,^[40] See Qantas Airways Limited v Aravco Limited (1996) ATPR ¶41-486 at 42,047; (1996) 185 CLR 43 at 52 per Brennan CJ, Gaudron, McHugh and Gummow JJ; Tolley v Morris [1979] 1 WLR 592 at 601; [1979] 2 All ER 561 at 569 ; Customs and Excise Commissioners v Hedon Alpha Ltd [1981] QB 818 at 826 . futile or pointless,^[41] See Bishop v Deakin [1936] Ch 409 at 413-414 ; Kammins Co v Zenith Investments [1971] AC 850 at 860 . or artificial.^[42] See R v Cash [1985] QB 801 at 806 . Consideration of the trade meaning of individual words in such cases is more likely than not to lead to the interpretation that the makers of the instrument had in mind.

Further, contrary to Agfa's submission, using the trade meaning of individual words in a composite phrase having no special meaning as a whole does not involve a failure to construe the phrase ``as a whole''. It simply does not follow, as a matter of logic or common-sense, that the division of a composite expression into parts which are interpreted by reference to their trade meaning, ordinary meaning or a combination thereof necessarily means that a court or tribunal has failed to construe an expression by reference to its meaning as a whole.

It remains to determine whether the finding of the Tribunal was permissible as a matter of law. We think that it was. We can see no reason to disturb Jenkinson J's finding which in our view was supported by the evidence and was correct as a matter of law. For the reasons that we have given, his Honour's approach to construction, namely reading the expression ``silver dye bleach reversal process'' by reference to the trade or technical meaning of ``silver dye bleach'' and the ordinary meaning of ``reversal'', does not lead to absurdity nor a failure to construe the expression as a whole. To accept the argument of Agfa would be to deny the import of logic and common-sense in matters of statutory construction. And as Lord Devlin once said, ``no system of law can be workable if it has not got logic at the root of it''.^[43] Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 516 . Accordingly, we would uphold the Collector's appeal and reinstate the decision of the Tribunal affirming the decision under review.

As Jenkinson J made no error of law in respect of the phrase ``silver dye bleach reversal process'', it is unnecessary to determine whether his Honour erred in law in holding that Agfa's papers did not fall within the phrase ``having the image dyes incorporated in the emulsion layers''. Agfa's appeal to the Full Court could only have succeeded if

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Jenkinson J had erred in law in determining the meaning of both phrases.

Order

The appeal should be allowed.