Case: Collector of Customs v Agfa-Gevaert Pty Ltd [1996] HCA 36 ; (1996) 186 CLR 389
Outcome: followed
In characterising the goods the Tribunal was entitled to have recourse to common-sense, as Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ emphasised in Collector of Customs v Agfa-Gevaert Pty Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 400. 40 It was for the Tribunal to evaluate, as a factual matter, the essential character which it perceived the goods to have. It also had to identify what the word 'insole' meant as an ordinary English word. That is why it was open to the Tribunal to select its characterisation of the best description of the goods as being orthotic inserts of the kind described in the patent. 41 I am of opinion that Customs' characterisation of the Tribunal's approach to its case is not correct. The Tribunal's reasons show that it proceeded in a conventional manner. First, it identified what the goods were in the condition in which they came to be imported into Australia. It found that they were orthopaedic appliances within the meaning of heading 9021. It explained that this finding was made because the goods were 'more properly defined' as an artificial external device such as a brace or splint which prevented or assisted relative movement in the limbs. In this finding the Tribunal was expressing its ascertainment of the essential character of the goods. It explained that the finding was based on the ordinary and natural meaning of an orthopaedic appliance. That meaning was one which Customs accepted was open to the Tribunal based on its earlier decision in JS Levy (unreported Tribunal decision No 101; dated 8 September 1978) and the Oxford English Dictionary definition. 43 In my opinion, the reasons given by the Tribunal informed the parties why it came to the conclusion that it did. It made a finding as to how the goods would be viewed by an informed observer when they arrived at the wharf in Australia. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ deprecated an attempt to scrutinise, overzealously on judicial review, the reasons of an administrative decision-maker. 54 It is difficult to conceive that Note 6 of Chapter 90 was framed with the intention to exclude every orthotic insert except one made to measure. Such a construction would render otiose the second category of 'footwear' or 'special insole' in Note 6. Customs did not point to a construction that gave any reality to the existence an orthotic insert which was not made to measure and which met the criteria in Note 6 of Chapter 90. That is a good reason for concluding that orthotic inserts are not, in general, to be characterised as 'special insoles': Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] . The argument of Customs deprives Note 1(e) of Chapter 64 of any real content because all orthotics, except those made to measure, would be excluded from being characterised as an orthopaedic appliance. Such a view is contrary to the words used in the Act and to common-sense ( Agfa-Gevaert 186 CLR at 400). I reject this argument. 55 Customs' proposed amended notice of appeal and application for an order for review seeks leave to add the following prayer for relief: 'That it be declared that the last paragraph to Note 6 to Chapter 90 in the Tariff Act has effect such that "footwear and special insoles designed to correct orthopaedic conditions" are "orthopaedic appliances" only if such footwear and special insoles are "either (1) made to measure or (2) mass-produced, presented singly and not in pairs and designed to fit either foot equally".' 56 In my opinion it would be inappropriate to grant such a declaration in this matter. The circumstances in which Note 6 of Chapter 9 can operate are varied. I am not in a position to review all of them or to assess the impact which any particular form of declaratory relief might have on other goods. 58 What a 'special insole' is in any particular case must be a question of fact, as must the question as to whether the good satisfies any of the criteria in Note 6 which might bring it to assessment under heading 9021. The proposed declaration is loosely framed and objectionable in form: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 579 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. 60 I am of opinion that the proposed amendment does not raise a fairly arguable claim to final relief and ought be refused: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 154-155 per Dawson, Gaudron and McHugh JJ. 61 Ordinarily, where an appeal is brought under s 44 of the Administrative Appeals Tribunal Act , it will not be appropriate also to entertain proceeding for relief under the Administrative Decisions (Judicial Review) Act or s 39B(1A) of the Judiciary Act : Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 per Davies J; but where, as here, there is a potential that the proper construction of the words in the Customs Tariff Act may not raise a question of law under s 44, judicial review proceedings to enable all issues to be resolved may be appropriate: see s 22 of the Federal Court of Australia Act 1976 (Cth) and cp: Rich v CGU Insurance Ltd [2005] HCA 16 ; (2005) 214 ALR 370 at 375 [20] per Gleeson CJ, McHugh and Gummow JJ. I have considered the matter on both bases.