Case: Zeroz Pty Ltd v Deputy Commissioner of Taxation (1997) 35 ATR 349
Outcome: referred to
Honour observed at [24] that it was common ground that the phrase 'juices of fruits' does not have a trade meaning. At [36] he referred to what was said by a Full Court of this Court in Zeroz Pty Ltd v Deputy Commissioner of Taxation (1997) 35 ATR 349 at 357, 'if there is no trade usage then a fortiori the expression must be used in its ordinary English sense'. But P &amp; N in that case, like the applicant in this case, made a number of submissions which, at the risk of doing the applicant a disservice, went something like this: (1) While the phrase 'juices of fruits' does not have a trade meaning, the phrase is synonymous with 'fruit juice' and that term had a trade meaning as defined in the Food Standards Code . (The Food Standards Code is a reference to the Australia New Zealand Food Standards Code as defined in the Food Standards Australia New Zealand Act 1991 (Cth). The Food Standards Code , standard 2.6.1, with respect to fruit juice and vegetable juice, defined fruit juice or vegetable juice as the liquid portion, with or without pulp, obtained from fruit or vegetables respectively and in the case of citrus fruit, other than lime, the endocarp only of the fruit and included products that had been concentrated and later reconstituted with water to a concentration consistent with that of the undiluted juice from which it had been made. At [21] and [22], his Honour observed that it was common ground that the fruit drinks supplied by P &amp; N met the Food Standards Code requirements. It was also common ground that P &amp; N fruit drinks contained non-fruit based additives, vitamins and minerals or used processing aids within the limits permitted by the Food Standards Code . The evidence was that the fruit drinks contained 98% - 99% fruit juice and 1% - 2% additives and processing aids not directly derived from fruit.) (2) In substituting a trade meaning of 'fruit juice' for 'juices of fruits' that has no trade meaning, reliance was placed on Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 where the phrase 'silver dye bleach reversal process' in a tariff concession had no trade meaning but the words 'silver dye bleach process' did. The High Court held that the Tribunal's construction of the composite phrase by reference to the trade meaning of the lesser phrase and the ordinary meaning of the word 'reversal', involved no error of law. The submission, by parity of reasoning, was that in the Item 11 composite phrase 'wholly of juices of fruits', the word 'wholly' should be given its ordinary meaning and the words 'juices of fruits' (in both Items 11 and 12) should be given the trade meaning for 'fruit juice'. (3) That having adopted the Foods Standards Code prior to the introduction of the GST Act, its concepts were well known to the Parliament and that it may be taken to have had regard to them in respect of a law dealing with the exemption of food. In this regard, in Zeroz , reference had been made by the taxpayer to the Food Standards Code (as it then existed) for the purpose of ascertaining the trade meaning of a term in the sales tax legislation. A Full Court of this Court said at 354 and 359 360: One might wonder at the relevance in interpreting a statutory provision first incorporated in legislation effective from 20 September 1985 (when Item 23 of the 1935 Act was introduced by Act No 145 of 1985) of a standard not published until 1987 and on the evidence still the subject of consideration and alteration until that date. [p 354] ... It is hard to accept that a public document still in the process of formulation and not yet published at the time the word "yoghurt" was introduced into the sales tax law should be seen as the source of a definition of the expression "yoghurt" in statute passed years earlier. [p 359 360]