Case: Attorney-General v The Colonial Sugar Refining Co Ltd (1900) 26 VLR 83
Outcome: considered
In Attorney-General v The Colonial Sugar Refining Co Ltd (1900) 26 VLR 83 , Madden CJ considered the construction of the term "molasses refined" in Victoria's pre-Federation customs and excise duties legislation. At 84 his Honour said: The evidence shows that the process which "molasses" undergoes at the defendant company's works practically amounts to a straining, by which foreign matters, debris, and rubbish are extracted, and nothing more. It also appears that when sugar is refined this is a preliminary part of the process it passes through, but that in the case of sugar when this is done the sugar is treated with phosphoric acid in order to eliminate certain matters, and the acid is then eliminated by the use of alum. Subsequently the sugar is submitted to other treatment, which is specifically termed in trade "refining," viz., passing it over charcoal beds, so as to eliminate from it substances naturally in it, that is intrinsic as distinguished from extrinsic impurities, and when this is done the sugar is said to be "refined." This passing over charcoal is the test which constitutes refinement as distinguished from straining and other processes. (Emphasis added.) Later, at 85-86 his Honour said: The International Dictionary, which Webster revised, gives "refined" as "freed from impurities or alloy, purified, polished, cultured, delicate, as refined gold, refined language, refined sentiment." Nobody speaks of the refinement of the gold when only separating the quartz and other like substances in which it is found, but which form no inherent part of it, from the metal. One only refines when one comes to retort the gold and the inherent alloys, silver, copper, etc., are extracted from it. Therefore we may take from the meaning in the dictionary that the refining of sugar or molasses stands in the same category as refining of gold, of silver, or of wine. I think that refinement must mean here as sugar is refined, and that the word "refined" would not be properly applied to a mere straining or filtering. 96 Accordingly his Honour held that the molasses, which similarly to the residual oils here was produced as a consequence of the refining of a raw sugar, could not be characterised as "refined" as a result of it being strained to remove extrinsic impurities (frogs, brickbats and nails) that had found their way in during storage. As is evident from his Honour's decision, some form of purification in the sense of removing intrinsic impurities was central to the concept of refinement or "refined" as it was held to have been used in the relevant Victorian legislation. Contrary to the Commissioner's submission, I do not consider that the process of separating the crude oil into different components in and of itself means that each separated component therefore has the character of a "refined" product. This is especially so where the component in question is essentially removed from the whole because of its inferior or impure nature. 97 It follows from what I have said that none of the residual oils fall within item 11(a) of the Schedule and are consequently not dutiable. However, in case I am wrong on this point, I intend to deal with all remaining issues, which were fully argued. This includes whether the Lytton Refinery Fuel Oil is a "liquid" petroleum product. 98 It was common ground that both the Kurnell Residual Slop Oil and CLOR Residual Slop Oil are properly described as liquids and thus would fall within item 11(a) if they are "refined" or "semi-refined" products. Caltex contended however that the Lytton Refinery Fuel Oil was not a liquid, for the reasons set out at [20]. It said that the "standard" reference point for determining whether something was a liquid was a temperature of 20deg.C and pressure of 101.3kPa. As I have found at [27] and [28], the Lytton Refinery Fuel Oil is a solid at those standard temperature and pressure conditions but a liquid when it is produced, stored and then consumed as a burner fuel. 99 I do not accept Caltex's submission. Neither the Schedule to the Tariff Act nor the Tariff Act itself contains any stipulation that the relevant "refined or semi-refined" petroleum products in item 11(a) must be liquid at standard temperature or pressure . By contrast, the Tariff Act does in respect of other goods prescribe certain physical properties by reference to specific temperatures and pressures. For example, s 3(4) prescribes the physical characteristics of "fuel oil", which include a density and a minimum kinematic viscosity measured at 15deg.C and 50deg.C respectively. Moreover, the prescription of a standard temperature and pressure for the determination of a liquid state is used elsewhere in the Excise Act . "Condensate", for example, is defined in s 4 of the Excise Act as either: (a) liquid petroleum; or (b) a substance: (i) that is derived from gas associated with oil production; and (ii) that is liquid at standard temperature and pressure . (Emphasis added.)