Amoena Australia Pty Ltd and Chief Executive Officer of Customs - [2016] AATA 357

Amoena Australia Pty Ltd and Chief Executive Officer of Customs [2016] AATA 357 (31 May 2016)

Division

GENERAL DIVISION

File Number(s)

2014/5290

2015/1691
2015/5422

2016/1341

Re

Amoena Australia Pty Ltd

APPLICANT

And

Chief Executive Officer of Customs

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 31 May 2016

Place Melbourne
The Tribunal finds that the decisions made by the Chief Executive Officer of Customs in matters number 2014/5290, 2015/1691, 2015/5422 and 2016/1341 were not the correct decisions. The Tribunal sets aside those decisions and remits those matters to the Chief Executive Officer of Customs for assessment of duty in accordance with its findings.
.......................................................................
Egon Fice, Senior Member
CUSTOMS – Identification of imported goods - classification of goods under appropriate heading – whether items in question constitute orthopaedic appliances or are part of orthopaedic appliances – Items found to be accessories to orthopaedic appliances – decision of CEO of Customs set aside
Legislation
Customs Act 1901
Customs Tariff Act 1995
Cases
Re Gissing and The Collector of Customs (1977) 14 ALR 555
Re Tridon Pty Ltd and Collector of Customs (1982) 4 ALD 615
Vernon-Carus Australia Pty Ltd and Another v Collector of Customs (1995) 21 AAR 450
Deputy Commissioner of Taxation v Polaroid Australia Pty Ltd (1972) 2 A.T.R.
Re Transaction Australia Pty Ltd and Collector of Customs (Victoria) [1981] AATA 186
United States v Willoughby Camera Stores Inc (1933) 21 C.C.P.A. 322
Federal Commissioner of Taxation v Kentucky Fried Chicken Pty Ltd (1988) 81 ALR 35
Zendel Australia Pty Ltd (t/as Glad Products of Australia) v Federal Commissioner of Taxation (1992) 92 ATC 4515
Chief Executive Officer of Customs v Boehringer Mannheim Australia Pty Ltd [1997] FCA 1235
Secondary Materials
The Australian Concise Oxford Dictionary, third edition
REASONS FOR DECISION
Egon Fice, Senior Member
31 May 2016

Amoena Australia Pty Ltd (Amoena) is a subsidiary of Amoena-Orthopadie-Technik GmbH, a German company which manufactures and supplies worldwide a range of brassieres (bras), swimwear and breast symmetry products designed for women who have undergone breast surgery, either in the form of a single mastectomy, a bilateral mastectomy or a lumpectomy. The bras are designed to carry a breast form (prosthesis) to correct the absence of breast tissue removed in the course of surgery. Amoena refers to them as mastectomy bras.
In December 2013 Amoena lodged an application with the Australian Customs and Border Protection Service (Australian Customs) seeking a Tariff Advice. That process is an internal process adopted by Australian Customs. Amoena claimed that the correct classification of its goods, which it said were orthopaedic appliances, was heading 9021.10.90. On 16 April 2014 Australian Customs issued its Tariff Advice in which it identified the goods as: Bras with insert pockets to hold breast prosthesis. It considered the appropriate classification heading to be 6212.10.00. The reason for rejecting Amoena’s classification was: Goods not considered to be an orthopaedic appliance as they do not prevent or correct any bodily deformity nor whole or support parts of the body following an illness, operation or injury.
In a letter dated 30 May 2014, Hunt & Hunt, Amoena’s solicitors, wrote to Australian Customs seeking an internal review of the Tariff Advice provided on 16 April 2014. The internal review decision was given by Australian Customs in July 2014. It concluded that the correct classification of Amoena’s goods was to heading 6212 and in particular to subheading 6212.10.00. However, it accepted that some of the goods, being specifically post-surgery bras, may be classified to subheading 9021.10.90 provided they were not excluded by the Chapter 90 Note 1(b). Post-surgery bras are worn before the surgical site is sufficiently stable and healed for fitting with the types of forms that may be worn after healing.
Following a request for clarification from Amoena regarding the styles of bras identified as post-surgery bras, Australian Customs identified those it considered were designed to be worn before healing of the surgery site occurred. It said:
If the garments are pocketed post-mastectomy bras and do not fall into the above categories, i.e. they are solely or principally used post healing, then yes, they are classifiable as a bra as per the review.
Following the review, Amoena paid duty on its goods imported after 10 April 2014 under protest in accordance with s. 167 of the Customs Act 1901 (Customs Act). That duty was paid in respect of import declarations made since 10 April 2014 which are listed in Amoena’s statement of facts and contentions lodged with the tribunal on 16 March 2015 in matter No. 2014/5290. Subsequent to that application, Amoena made three further applications relating to customs duty paid under protest on the importation of mastectomy bras between 11 October 2014 and 6 April 2015 (matter No. 2015/1691); between 7 April 2015 and 15 September 2015 (matter No. 2015/5422); and between 16 September 2015 and 8 February 2016 (matter No. 2016/1341). The decision made on the hearing of this matter will apply to all of those importations.
Section 273 GA of the Customs Act provides for applications to be made to the Administrative Appeals Tribunal for review of certain decisions made by the Collector of Customs and it includes the following:
(2) Where a dispute referred to in subsection 167(1) has arisen and the owner of the goods has, in accordance with that subsection, paid under protest the sum demanded by the Collector, an application may be made to the Tribunal for review of the decision to make that demand and of any other decision forming part of the process of making, or leading up to the making of, that first-mentioned decision.
The reason for the multiple applications made by Amoena is that s. 167 sets out time limits within which an owner of goods may bring an action against the Collector in any Commonwealth or State Court of competent jurisdiction for the recovery of money so paid. The time limit set out in s. 167(4) is six months after the date of payment. Section

273 GA(5) provides that an application may not be made to the Tribunal under subsection (2) unless the application is made within the time specified in paragraph 167(4)(a) or (b), whichever is appropriate. Where the owner of goods has made an application to the Tribunal under subsection (2), they are not entitled to bring an action under subsection 167(2).
The issues which I am required to resolve on this application are:
(a)the correct identification of the imported goods described as mastectomy bras; and
(b)the correct tariff classification of the imported goods.
IDENTIFICATION OF THE IMPORTED GOODS
It is well understood in cases such as this that prior to embarking upon classification of the imported goods, one must first accurately identify those goods. As Brennan J (in his capacity as President of the Tribunal) said in Re Gissing and The Collector of Customs (1977) 14 ALR 555, at 556 – 557:
The question raised by the application is one of classification. In order to answer the question, it is necessary to identify the goods, and by construing the Tariff, to determine which provision of the Tariff includes the goods so identified. Identification of goods to be classified is often a simple exercise. When goods are separate units, each identical with the others, and possessing no distinctive features by reason of their association, each unit may be identified self-evidently as a relevant entity for classification. …
The identification of the relevant entity for classification is to be distinguished from the step which follows, namely, the enquiry whether one or more of the Tariff provisions applies to the entity which has been identified. The provisions of the Tariff do not determine the relevant entity; they determine whether the importation of the relevant entity attracts the charge. In attempting to identify the entity, the Tariff gives no assistance. Although it will frequently be possible to apply a descriptive word to the combination which is established as the entity, the naming of the entity is not an essential step in the process of identification. Identification is concerned with goods, not with the description of goods.
The Tribunal (A N Hall (Senior Member), P C Wickens and I Prowse (Members) in Re Tridon Pty Ltd and Collector of Customs (1982) 4 ALD 615 distilled, from the numerous decisions dealing with identification, the principles which should be applied when conducting that exercise. Those relevant for identification in this case may be stated as:
·identification must be objective, having regard to the characteristics which the goods, on informed inspection, present;
·identification of goods cannot be controlled by the descriptions of the goods adopted in the nomenclature of the Tariff;
·nevertheless in identifying goods it is necessary to be aware of the structure of the nomenclature, on the basis on which goods are classified and the characteristics of goods which may be relevant to the frequently complex task of classification;
·knowledge of how those who trade in the goods described them will usually be relevant, but not necessarily conclusive;
·all descriptive terms, both specific and generic, by which the goods may fairly be identified may be relevant to the classification of the goods within the Tariff;
·descriptive terms may be of varying degrees of specificity; and
·identification will frequently extend to characterisation of goods by reference to their design features or by reference to their suitability for a particularly use where those characteristics emerge from informed inspection of the goods as important.
Northrop J, as a member of the Full Court of the Federal Court of Australia in Vernon-Carus Australia Pty Ltd and Another v Collector of Customs (1995) 21 AAR 450 added the following, at 455 – 456:
In performing the task of identifying goods for classification, it is essential to have regard to the relevant classification heading. Some heading classifications make specific reference to a form or to a purpose. Where this is so, a “practical wharf-side” task, may not be appropriate. Evidence may need to be received relating to the form or purpose of the goods. In cases of this kind, the heading will need to be construed properly in order to determine what evidence is relevant to identify the goods. This is such a case where purpose forms an essential part of the classification.
I had in evidence and number of examples of Amoena’s brassieres.
A physical examination of the goods in question reveals that the goods are a brassiere. They plainly come in a variety of sizes and with different features. However there is one notable difference in the Amoena bras when compared with what might be described as a standard bra, of which I had an example in evidence, and that is that each breast cup contains a pocket. The pocket comprises a light-weight piece of flexible material stitched to the inside of each cup. There is an opening at the side of each cup which, according to Amoena, is to allow a breast form or prosthesis to be inserted and held firmly in place. Another noticeable difference is the shoulder straps on the Amoena bra which are padded.
As Northrop J said in Vernon-Carus Australia, there are cases where evidence may be required to identify the form or purpose of the goods. An examination of the Amoena bras does not readily distinguish those goods from what might be described as an item of clothing, that is, simply a bra. In my opinion, this is a case where evidence is essential for correct identification of the goods in question.
I had in evidence a statement made by Ms Kerry Nash who is employed as the Sales and Marketing Manager for Amoena Australia Pty Limited. The reason why Ms Nash’s evidence is significant is that prior to her employment by Amoena, she was a registered nurse and a qualified midwife. Her resume also indicates she was a prosthetic fitter and Business Owner of an enterprise called Kitten Kaboodle Lingerie Boutique. She also has a postgraduate certificate in Breast Care Disease Entity in Nursing Practice. In my opinion, Ms Nash is well qualified to explain the design features of the Amoena bra and in particular its purpose, although I am mindful of her role as an employee of Amoena. Purpose is, after all, essential to determining an item’s correct classification.
Ms Nash described her role with Amoena in the following way:
My responsibilities include the organising and facilitation of training schools to train qualified bra fitters in retail stores throughout Australia on how to correctly fit women who have undergone breast surgery.
Attached to Ms Nash’s witness statement were a number of slides which illustrated:
(a)the necessity of fitting breast forms and bras together whenever that was possible;
(b)taking into account new bras and individual features and differences of each type and style of breast form;
(c)accounting for psychological and emotional aspects of women who have undergone breast surgery;
(d)the external breast prosthesis reimbursement program administered by Medicare;
(e)eligibility of Gold Card Veterans’ to receive a breast form every two years and two mastectomy bras every six months; and
(f)medical and orthopaedic complications which may arise from not wearing a properly fitted bra and breast form.
In the course of her oral evidence, Ms Nash demonstrated the combined use of Amoena’s bras and breast forms. She noted that the Amoena bras had straps which were thicker and more padded than ordinary bras so that they had a softer feel over the shoulder. She noted that the side stays were soft and fluid as opposed to those in other bras. Ms Nash explained the fitting process and the need to match the prosthesis shape, weight and size into the appropriate bra size. By way of example, Ms Nash produced what was described as a T-shirt bra which she explained was unsatisfactory for use with a prosthesis. She explained that such a bra could not satisfactorily contain the prosthesis because it moves, falls out and the edge of it can rub causing discomfort.
In cross-examination it was put to Ms Nash that it was possible to buy pocketed bras which were not designed for use with a prosthesis. Ms Nash agreed but explained that they were not suitable for use with a breast form or prosthesis. Ms Z Maud of counsel, who appeared on behalf of Customs, put to Ms Nash that the Amoena bras had, essentially, the same features as most ordinary bras available on the retail market. Ms Nash agreed that the Amoena bras could be used with or without a prosthesis. She also agreed that Amoena bras focused on comfort over appearance. Ms Nash agreed with Ms Maud that it was possible to use a breast form with a well-fitting ordinary bra.
In a supplementary statement of evidence prepared by Ms Nash, she testified that Amoena only sold its breast forms to customers if their staff were trained by Amoena to fit the forms and the bras together. It sold bras to any customer.
Ms Brigitte Seehaus, who was employed by Amoena, provided a written statement of evidence and also gave oral evidence by telephone from Germany. Between 2007 and 2010 she was the Head of the Department for Development of Breast Forms at Amoena. In 2010 she took up the position of Product Manager for Breast Forms. She testified that role brought her into close regular contact with women who buy and use Amoena’s products all over the world.
Ms Seehaus testified that the vast majority of Amoena mastectomy bras are only available through specialist medical and orthopaedic shops or clinics where they are fitted by specially trained nurses or fitters. However, in Australia, Amoena’s mastectomy bras are available through specialist Mastectomy Fitting Boutiques, Lingerie Stores, some Department stores and medical and orthopaedic shops or clinics. Ms Seehaus said that while her former role focused on breast forms, all work relating to the fitting of breast forms was necessarily carried out by reference to the combination of bra and breast form. In her written statement of evidence, Ms Seehaus stressed the importance of women who have had a mastectomy to be properly fitted with a bra and silicon breast form. She explained that while Amoena commenced business for the purpose of making breast forms, it considered it was essential for medical reasons to develop and provide a bra necessary to hold in place the breast form. For that reason, at the time Ms Seehaus ceased employment with Amoena, it employed some 15 specialised designers and product development engineers for the purpose of designing and developing mastectomy products, which I understood to be the bra and breast form.
On the other hand, Customs referred to Amoena’s advertising material available on the Internet which referred to one of its bras as: a fashionable lacy bra with embossed fabric outside and… Fabric pockets inside – perfect for hot weather or a hot date.… Bilateral pockets – can be worn as a bilateral, left, right or non-pocketed bra. Plainly, at least some of the bras produced by Amoena are designed to be worn by women who have not had a mastectomy or lumpectomy even though they are pocketed bras and have been designed to be worn with a prosthesis.
While on the subject of identification, I should also mention a Cancer Council document titled Breast Prostheses and Reconstruction; A guide for women affected by breast cancer, which I took into evidence. That document states, at page 19:
While some women find that their ordinary bra, sports bra or sports crop top adequately supports their prosthesis, mastectomy bras are specially designed for this purpose. As well as being cut wider under the arm, across the chest and in the straps, mastectomy bras have a pocket in the cup to hold the prosthesis in place.
The evidence I have referred to above plainly points to the mastectomy bras manufactured by Amoena having a dual function or purpose. They serve the purpose of enabling a prosthesis to be worn comfortably and securely by women who have undergone breast surgery and who choose to do so. They also serve the function of an ordinary non-pocketed bra, that is, as an undergarment worn by a woman to support her breasts. I am of course mindful of the fact that Amoena’s bras are imported independently from its breast forms. The goods in question are solely the bras. I find that the goods as imported should be identified as brassieres suitable for wearing by women who have had breast surgery and those who have not.
The next issue is that of classification. It is this issue which is most difficult and its outcome will depend essentially on the purpose for which the goods are manufactured. The reason for that should become apparent presently.
CLASSIFICATION
Tariff classifications are set out in Schedule 3 of the Customs Tariff Act 1995 (Tariff Act). Section 7 (1) of the Tariff Act provides:
(1) The Interpretation Rules must be used for working out the tariff classification under which goods are classified.
The general rules for the interpretation of Schedule 3 are set out in Schedule 2. Relevantly, it provides:
Classification of goods in Schedule 3 shall be governed by the following principles:
1.The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relevant Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions:
2.…
3.When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a)The heading which provides the most specific description shall be preferred to headings providing a more general description.…
(b)…
(c)When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
…
6. For legal purposes, the classification of goods in the subheadings of the heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative Section and Chapter Notes also apply, unless the context otherwise requires.

Both parties appear to agree that the goods in question either fall under Chapter 62 or Chapter 90 of the Tariff Act. Chapter 62 is concerned with articles of apparel and clothing accessories, not knitted or crocheted. Chapter 90 is concerned with optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof.
More specifically, Customs contended that the goods should be classified to Heading 6212 which provides:
6212 BRASSIERES, GIRDLES, CORSETS, BRACES, SUSPENDERS, GARTERS AND SIMILAR ARTICLES AND PARTS or car’s thereof, WHETHER OR NOT KNITTED OR CROTCHETED:
6212.10 .00-Brassieres
Amoena contended that the goods should be classified to Heading 9021 which provides:
9021 ORTHOPAEDIC APPLIANCES, INCLUDING CRUTCHES, SURGICAL BELTS AND TRUSSES; SPLINTS AND OTHER FRACTURE APPLIANCES; ARTIFICIAL PARTS OF THE BODY; HEARING AIDS AND OTHER APPLIANCES WHICH ARE WORN OR CARRIED, OR IMPLANTED IN THE BODY, TO COMPENSATE FOR A DEFECT OR DISABILITY:
9021.10-Orthopaedic or fracture appliances:
…
9021.10.90-Other
9021.3-Other artificial parts the body:
9021.39- Other
I should first examine whether the goods should be classified to Chapter 90 because of the exclusion set out in the Chapter 62 Notes. It provides:
2.-This chapter does not cover:
(a)…
(b)Orthopaedic appliances, surgical belts, trusses or the like (9021).
Accordingly, if the goods are properly classified to Chapter 90, then they cannot be classified to Chapter 62.
In accordance with the rules of interpretation to be applied to Schedule 3, the following Chapter 90 Notes may be relevant:
1.-This Chapter does not cover:
(a)…
(b)Supporting belts or other support articles of textile material, whose intended effect on the organ to be supported or held derives solely from their elasticity (for example, maternity belts, thoracic support bandages, abdominal support bandages, supports for joints or muscles) (Section XI);…
2.-Subject to Note 1 above, parts and accessories for machines, apparatus, instruments or articles of this Chapter are to be classified according to the following rules:
(a)…
(b)Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with the number of machines, instruments or apparatus of the same heading (including a machine, instrument or APRA rafters of 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind;
(c)All other parts and accessories are to be classified in 9033.00.00.
3…
6.For the purposes of 9021, “orthopaedic appliances” means appliances for:
-Preventing or correcting bodily deformities; or
-Supporting or holding parts of the body following an illness, operation or injury.
The argument advanced on behalf of Amoena comprised two limbs. First, Amoena contended that its mastectomy bras were orthopaedic appliances. Secondly, and alternatively, Amoena’s mastectomy bras are a part and/or an accessory to the breast form. Needless to say, Customs opposes both contentions. Before doing so, I should briefly refer to Amoena’s applications in the United Kingdom in respect of its mastectomy bras.
United Kingdom appeals by Amoena
Mr Slonim referred to appeals brought by Amoena in the United Kingdom following a decision made by The Commissioners for Her Majesty’s Revenue and Customs disallowing its claim that the mastectomy bra should be classified as an orthopaedic appliance under Heading 9021. In fact there have been three appeals, the first was to the First-tier Tribunal (the FTT); the second in the Upper Tribunal (Tax and Chancery Chamber) (UTT); and finally to the England and Wales Court of Appeal (Civil Division). The FTT decided against Amoena; the UTT decided in its favour; and the Court of Appeal decided against it. Despite finding against Amoena, two of the Justices of the Court of Appeal (Lord Justice McCombe and Lady Justice King) made comments which favoured the submissions made by Amoena particularly on the accessory question. Lady Justice Arden, who gave the leading reasons for decision, did not do so. Nevertheless, Mr Slonim submitted I should have regard to the favourable comments made on the accessory question.
On the other hand, Customs contended that because those decisions did not bind this Tribunal, I should disregard them. Essentially, that is because the Tribunal cannot be aware of the investigations undertaken to come to the conclusions that were drawn and any other circumstances giving rise to the rulings and decisions. Having read the Court of Appeal decision, it is plain to me that the Court found itself significantly influenced, if not bound, by three Court of Justice of the European Union decisions. While all of those decisions provide some guidance to the construction of Heading 9021, I nevertheless believe it is my duty to apply the rules of statutory construction which apply to this jurisdiction, focusing on the intent of the particular Heading in question which is manifested by the words used. I must of course also apply the Interpretive Rules found in Schedule 2 of the Tariff Act. Furthermore, I must make my decision having regard to the evidence which was before me on the hearing this matter.
The Orthopaedic appliance contention
Amoena contended that its mastectomy bras were orthopaedic appliances because:
(a)they corrected a bodily deformity by replacing the function of the muscles and skin that have been removed following surgery;
(b)they compensated for a defect or disability; and
(c)the intended effect on the breast form which they hold and support is not derived solely from elasticity and therefore the exclusionary Chapter 90 Note 1(b) did not apply.
As I have set out at [34] above, the expression orthopaedic appliances, when used in Heading 9021, is exhaustively defined in Note 6. To fall within the definition, it must either prevent or correct bodily deformities; or it must support or hold parts of the body following an illness, operation or injury.
Regarding the first limb of the definition, Mr J Slonim of counsel, who appeared on behalf of Amoena, submitted that whereas, prior to mastectomy, the breast was supported by skin and muscle, following a mastectomy, that support role was provided by the mastectomy bra. Mr Slonim submitted that the mastectomy bra in its own right operated to correct bodily deformity, that is, the removal of skin and muscle.
With respect to Mr Slonim, I have some difficulty with this submission. That is because of the evidence given by Professor John Boyages, a cancer specialist with 30 years’ experience in breast cancer management, who said this about the surgical process:
The parts that are removed are the breast (fatty tissue, breast lobules which expand during lactation produce milk), the breast ducts (which carry milk to the nipple), the skin of the breast, nipple, areola (dark skin around the nipple). The breast is mainly fatty and all is removed down to the “pec” muscle (pectoralis major fascia) (Figure 1). The fat tissue contains thin fibres called collagen, which surround and protect the breast lobules. Within the fat are bands of connective tissue called Cooper’s ligaments (suspensory ligaments) which connect the skin of the breasts to the pectoralis muscle is below them. On their own, Cooper’s ligaments do not prevent sagging of the breast and because of their weight a bra is usually required for support of the breast..…
The breast form essentially replaces the breast. The bra is essentially used to hold the heavy external silicon implant in place (which acts as the breast) and the bra replaces the skin. We rarely remove muscle, but in the very rare situation that we do so, the defect is replaced, to some extent, by the breast prosthesis rather than the mastectomy bra (Figure 3).
In her evidence Ms Seehaus said that, depending on the type of operation, a mastectomy or lumpectomy may require the surgical removal of the major and/or minor breast muscle or, at the very least, the removal of the affected breast tissue. In her written statement of evidence, Ms Seehaus referred to the loss of weight arising from such surgery and that the loss of weight needed to be compensated for so that the neck, shoulder and spine remained symmetrical. She then said:
In this context, it is the mastectomy bra which assumes a function of the muscles which have either been removed as part of the operation or those which remain but, of course, cannot be “detached” to the silicon breast form so as to hold it in place as they would have held in place the natural breast.
Ms Maud objected to the admission of Ms Seehaus’ evidence regarding the medical aspects of breast surgery. That was because she was not qualified to give that evidence, having no formal medical qualifications. I determined that Ms Seehaus’ written statement of evidence would be admitted however, where there was medical evidence dealing specifically with matters raised by her evidence, I would prefer the medical evidence.
The surgical process involved is an example of where I should exercise that preference. In other words, I accept what Professor Boyages said about the surgical process and in particular function of the pectoral muscle and whether or not it is generally removed in the course of breast surgery. In any event, because the breast is connected to the pectoral muscle by suspensory ligaments which do not in any event provide adequate support for the breast, some means of support, such as a bra, is necessary. I find that where some muscle is removed in the surgical process of removing a breast, that defect is replaced by the breast form, and not the mastectomy bra.
In his written statement of evidence Professor Boyages referred to the consequences of uneven distribution of weight which results from the removal of one or part of one breast as well as the removal of both breasts. Professor Boyages referred to a United Kingdom paper which examined neck pain experienced by patients after mastectomy. It disclosed neck problems in nearly half of those patients. He described it as a significant problem particularly in patients who had larger breasts. Professor Boyages included in his written evidence the table (presumably from a journal) which disclosed that six months after the operation, some 40.6% of patients experienced neck-shoulder pain and after 12 months the figure rose to 42.2%. A significant number of patients also experienced upper limb ache. In respect of the Orthopaedic implications from imbalance, Professor Boyages said:
A breast prosthesis inserted in a mastectomy bra, if weighted correctly provides an equal distribution of weight in the upper chest. This balance reduces strain on the neck, shoulders, upper thorax and costo-chondral joints.
It is clear from Professor Boyages’ evidence that the mastectomy bra, by itself, does not prevent or correct bodily deformities. Although the skin of the breast is connected to the pectoral muscle by suspensory ligaments, those ligaments do not support the weight of breasts, particularly larger breasts, without the assistance of an ordinary bra. Also, although Professor Boyages said that following a mastectomy, the bra replaces the skin, I understood that comment to mean that it simply becomes the covering for the breast form in the same way that skin covers the natural breast. I had in evidence photographs of women who had undergone breast surgery and it is clear from those photographs that while breast tissue is removed, most, if not all, the skin covering remains. Although Professor Boyages said in his evidence that skin was removed, I understood that to mean that some skin (probably excessive skin) was removed. It follows that it cannot be said that removal of muscle and skin in the course of surgery, assuming that does occur, is compensated for by the use of only a mastectomy bra. I find that the mastectomy bra by itself does not prevent or correct bodily deformities.
As to the second limb of the definition of orthopaedic appliances, Mr Slonim submitted that the expression supporting or holding parts of the body includes artificial parts of the human body as well as its natural parts. Again, at the outset, I confess that such an interpretation appears, on its face, to be incorrect. That is because the 9021 Heading refers to:… artificial parts of the body;… and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability. I understand that to mean that to fall within the definition of an orthopaedic appliance, it must be an appliance which is compensating for a defect or disability following an illness, operation or injury. The reference to a defect or disability must necessarily be a reference to an actual body part. Similarly, the first limb of the definition provides context for the definition. It is about artificial devices providing some form of beneficial relief to the natural parts of the body. It makes no sense to define such artificial devices as those which hold or support other artificial devices. Furthermore, if the definition had intended to include the support or holding of artificial parts of the body, it would have said so. It does not.
Mr Slonim also submitted that Amoena’s mastectomy bras are appliances which support parts of the body such as the spine, neck, shoulders, lymphatic system and skin following a mastectomy. The problem with that submission is that Professor Boyages’ evidence does not support that contention. Professor Boyages explained that imbalance due to loss of weight on one side of the body may cause strain on the upper parts of the body. It is the prosthesis, properly weighted, which restores balance and reduces strain on the neck, shoulders, upper thorax and costo-chondral joints. As for lymphoedema, Professor Boyages explained that a tight bra or one with narrow shoulder straps may obstruct the flow of lymph fluid causing swelling in the arm. He said a good fit would reduce the chance of this occurring. It follows I do not accept Mr Slonim’s submission on this point.
Having considered the above evidence and submissions made regarding whether Amoena’s mastectomy bra is an orthopaedic appliance as that expression is defined in Chapter 90 Note 6, I find that it does not fall within that definition. In other words, I find it is not an orthopaedic appliance for the purposes of Heading 9021. Nor is it an artificial part of the body. That is because it does not replace a portion of the body removed following breast surgery. The breast form replaces the portion of the body removed.
The Amoena bra as a part or accessory to the breast form
There was no dispute between the parties that the breast form is accurately described as an artificial part of the human body. It is therefore classifiable to Heading 9021. Mr Slonim submitted that if I were to find that the mastectomy bra was not an orthopaedic appliance, it was properly described as a part or an accessory to the breast form.
I have referred above [34] to Note 2 of Chapter 90 which introduces the rules to be followed when classifying parts and accessories for machines, apparatus, instruments or articles of that chapter. Note 2(a) is inapplicable because the mastectomy bras are not goods included in the headings of Chapters 90, 84,85 or 91. Note 2(b) refers to other parts and accessories if they are suitable for use solely or principally with a particular kind of machine, instrument or apparatus or with the number of machines, instruments or apparatus. Notably, although the introductory paragraph refers also to articles, Note 2(b) does not.
It appears to me that although some goods may fall into more than one description, for example an apparatus or an appliance, which have similar meanings generally being a piece of equipment needed or used for a specific purpose, use of the word article is more general. Even so, the word equipment means necessary articles, clothing, etc. for a purpose. The word article is defined in The Australian Concise Oxford Dictionary, third edition as: 1 (often in pl.) an item or commodity, usu. not further distinguished (a collection of odd articles). Therefore, while Note 2(b) may not be intended to apply to goods which are described as articles, it seems to me that Amoena’s breast form may be properly described as an appliance or article. That being the case, if the mastectomy bra can be properly described as a part or accessory, Note 2(b) or (c) will apply. That is, the goods would fall into 9021.10.90 or 9033.00.00.
In dealing with this contention, Mr Slonim referred to the England and Wales Court of Appeal decision. He pointed out that Lady Justice Arden found that the mastectomy bras were not a part of the breast form because they were not essential to its operation. She also found that the goods were not an accessory as they did not improve the performance of the breast form or give it additional functionality. However, Mr Slonim pointed out that the remaining two Justices would have found that the mastectomy bra was an accessory to the breast form were it not for the European Union case law dealing with this subject. Lord Justice McCombe said, at [86]:
In any normal parlance the MB [mastectomy bra] would surely be an accessory to the breast form. It holds it up. Certainly, there was evidence that there were other means, apart from the MBs, for securing breast forms, but in one way or another something has to be done to prevent the form simply sliding down the body and out of place. The MB is, therefore, in my view, as a matter of simple common sense, an accessory designed to perform that imperative function in relation to the breast form.
On that subject, Lady Justice King said, at [104 – 105]:
I, like McCombe LJ, find the logic in parts of the decided cases testing and indeed I too would have thought that a printer cartridge was typical of something which ‘performs a particular service relative to the main function of the printer, namely to enable it to print.
The analysis of Arden LJ and McCombe LJ however lead me to the reluctant conclusion that, notwithstanding any view I may hold as to the natural meaning of the relevant words, the law is such that I also can only conclude that the MB would not be an accessory to a breast form within the meaning of Chapter 90.
Despite what was said by the two Justices which I have quoted above, it seems to me that I need to start afresh.
In the context in which the word part is used in the Tariff Act, the appropriate definitions found in The Australian Concise Oxford Dictionary are: 1 some but not all of a thing or number of things. 2 an essential member or constituent of anything. 3 a component of a machine etc.
Gibbs J dealt with the meaning of the word part in the High Court of Australia decision Deputy Commissioner of Taxation v Polaroid Australia Pty Ltd (1972) 2 A.T.R. 653 (Polaroid). That was a sales tax case involving film packs and picture rolls imported by Polaroid. The film packs and picture rolls were designed for use in a particular type of Polaroid camera. One of the questions which his Honour was required to determine was whether those goods were parts for cameras. Gibbs J did not resort to a dictionary regarding the meaning of the word part but simply stated that, obviously, a part was something which with others makes up a whole. He went on to say, at 656 – 657:
The evidence showed that the picture roll can be used only in one particular sort of Polaroid camera… and that to take a picture with that model it is necessary to use a picture roll. Similarly a film pack can be used in only one type of camera, although there are several versions of that type. Moreover when either the film pack or the picture roll is placed in position in its camera it is fixed firmly in position by strong clip. This evidence did not however establish that a film pack or picture roll is part of a camera. One thing does not become part of another simply because the latter thing cannot be put to proper use without the aid of the former, even if, in use, the two things are fixed together. In my opinion a film is not part of a camera, nor a bullet of a gun, nor petrol of a motor vehicle.… The fact that the film pack and the picture roll at each designed to fit only one type of camera, which cannot be worked with any other type of photographic material, merely reinforces the view that the pack and the role are essential aids to the use of the cameras, but it does not show that the pack or the role as a part of the camera itself.

The Tribunal (Senior Member A N Hall and Members W B Tickle and F A Pascoe) in Re Transaction Australia Pty Ltd and Collector of Customs (Victoria) [1981] AATA 186 (24 December 1981) dealt comprehensively with the word part in the context of the Tariff Act. The question before the Tribunal was whether imported LP gas cylinders, which were fixed to forklift trucks, constituted a part of that vehicle. The forklift truck engines were able to be operated on either LP gas or petrol.
The Tribunal considered a number of Customs decisions are dealing with the meaning of the word part including American cases. In fact, it seemed to place some weight on an American decision in the Court of Customs and Patent Appeals (United States v Willoughby Camera Stores Inc (1933) 21 C.C.P.A. 322) where the Court said:
It is a well-established rule that a ‘part’ of an article is something necessary to the completion of that article. It is an integral, constituent, or component part, without which the article to which it is joined, could not function as such article…
The Tribunal found that the gas cylinder was an integral part of the truck and, although replaceable, was indispensable to its operation. It seems to me that this does not contradict what Gibbs J said in the Polaroid case because the LP gas cylinder presumably was regarded as a fuel tank rather than the fuel itself.
It should be immediately apparent that the mastectomy bra cannot be considered to be a part of the breast form or prosthesis. Amoena conceded that the breast form could be used in conjunction with an ordinary bra; or without a bra where the breast form had a self-adhesive device which enabled it to adhere to the chest wall. I find that each item is complete in its own right and does not form part of the other item.
The remaining question is whether the mastectomy bra should be classified as an accessory to the breast form. Relevantly, The Australian Concise Oxford Dictionary defines accessory as: 1 an additional or extra thing. 2 (usu. in pl.) a a small attachment or fitting. 3…adj. Additional; contributing or aiding in a minor way; dispensable.
Gibbs J also dealt with the meaning of accessory in the Polaroid case where he said, at 657:
The ordinary dictionary meaning of accessory is an adjunct, which itself is defined as something joined to another, but subordinate, as auxiliary, or dependent upon it.… In my opinion, however, the goods in question cannot be regarded as accessories for a Polaroid camera. An accessory for a camera is an extra and additional part of the equipment of the camera itself, such as a light meter, a filter or wide-angle lens, and in the ordinary course of language a film would not be referred to as an accessory for a conventional camera, nor a film pack or picture roll as an accessory for a Polaroid camera.
With respect to Gibbs J, his definition of the word accessory is somewhat narrow. The Court of Appeal Supreme Court of New South Wales (Hope, Samuels and McHugh JJA) in the matter Federal Commissioner of Taxation v Kentucky Fried Chicken Pty Ltd (1988) 81 ALR 35 (Kentucky Fried Chicken) dealt with the word accessory in the context of a sales tax assessment. Hope JA referred to the decision of Gibbs J in the Polaroid case and said, at 40:
With respect to his Honour, although “adjunct” is one of the meanings sometimes given by dictionaries for the word “accessory”, it is not the only meaning given in the dictionaries to which the court was referred in this appeal, and indeed in some of those dictionaries the word “adjunct” is not used. The word “accessory” can be either an adjective or a noun.
Hope JA examined the meaning of the word accessory in a variety of dictionaries and came to the following conclusion, at 41:
As it seems to me, even without a context which may confirm such a conclusion, the word “accessory” whether used as an adjective or a noun does not necessarily connote that the accessory must be joined to something else. An object that is joined to another may well be an accessory although it will not necessarily be so. It may still be an accessory even though it is not joined. Adopting as a basis the meaning given in the Macquarie Dictionary, and article will be an accessory if it is a subordinate part or object, added or attached for convenience or effectiveness or other such reason.
I do not regard the word “added” in this meaning to require conjunction nor do I suggest that this meaning is exhaustive. However, it is enough for present purposes. The word thus may apply to a subsidiary article whether joined or not joined to the principal article; it must be subordinate or subsidiary to that principal article and is added or attached for reasons such as convenience or effectiveness.
His Honour went on to say the following, at 42 – 43:
No doubt there can be endless discussion which might take on an atmosphere of absurdity as to precisely what is or is not an accessory or what can be or cannot be an accessory, and perhaps unfortunately some such analysis may sometimes be necessary for the purposes of arriving at the meaning and proper application of provisions contained in sales tax schedules and Customs tariffs and the like. However, as it seems to me the purposes of this type of legislation, and relevantly for the purposes of the sales tax legislation, are often better served by looking at the substance and reality of the matter.
Samuels and McHugh JJA agreed with those reasons.
Hill J in the Federal Court of Australia case Zendel Australia Pty Ltd (t/as Glad Products of Australia) v Federal Commissioner of Taxation (1992) 92 ATC 4515 was required to determine whether aluminium foil was an accessory to an oven and plastic bags an accessory to a refrigerator. His Honour referred to the Kentucky Fried Chicken case and to the decision of Gibbs J in Polaroid. He then said, at 5420:
As the dictionary definitions demonstrate, for an item to be an “accessory” in the relevant sense that item must contribute to the working of some principal item or its general effect. Thus both a camera lens and a light meter are, as Gibbs J observed, accessories to a camera; mag wheels may be an accessory to a car, a crisper may be an accessory to a refrigerator, or perhaps even a baking dish might be an accessory to a stove, at least if custom made for it. In each of these examples the accessory actually contributes to the functioning of the principal item.
That case went on appeal to the Full Court of the Federal Court (Lockhart, Beaumont and Gummow JJ) as Zendel Australia Pty Ltd and Others v Commissioner of Taxation and Another (1993) 46 FCR 14. The Full Court dismissed the appeal. Lockhart J said, at 18:
Ultimately, the meaning of the word “accessory” must acquire its meaning from the particular context in which it is used. In my opinion, for an item to be an accessory within the meaning of the Act, it must contribute to the working of some principal item or its general effect or appearance.
Beaumont J, agreeing with Lockhart J, said, at 18 – 19:
It should be noted that the term “accessories” in the item in question appears in the context of an item which is stated to be “parts, fittings and accessories”. If the subject goods had been designed exclusively for use in conjunction with a refrigerator or an oven or even if, perhaps, the goods in question had actually been used exclusively in conjunction with an oven or refrigerator, it could be that the conclusion contended for by the appellants may have been open. But, in the present case, there is no evidence and, indeed, no suggestion, that these goods were either designed exclusively for that purpose or, in practice, used exclusively for that purpose.
Another decision of some interest was that given by Lehane J of the Federal Court of Australia in Chief Executive Officer of Customs v Boehringer Mannheim Australia Pty Ltd [1997] FCA 1235 (17 November 1997). This matter came before Lehane J following a remittal to the Tribunal from a decision of Whitlam J and a second hearing at the Tribunal. It involved the classification of a chemically treated test strip which is used in conjunction with a photometer to measure the level of blood sugar. The test strips in question were suitable for use only with a particular model of photometer.
Lehane J referred to the decision of Gibbs J in Polaroid and the decision of the Full Court in the Zendel. His Honour then said:
It is, perhaps, all too easy to say that a camera will not function without a film, a recorder without a tape or a motor car without petrol; a film is not an accessory of a camera, a tape of a recorder or petrol of a motor car: because a photometer, in a similar way, will not function without a test strip, consistently with authority a test strip is not an accessory of a photometer. But to say that is to fall into precisely the error which Whitlam J identified in the reasons of the earlier tribunal.
“Accessories” is used, in the statutory context hearing question (as in the sales tax legislation), in close connection with “parts”. The dividing line between what is a “part” and what is an “accessory” may itself be elusive. A part of a manufactured good may be of crucial, of little or of no importance to the performance of its primary function; a cigarette lighter built into a vehicle in the course of its manufacture may, apparently, be a “part” of the vehicle; Waterscheid at 565. On the other hand, apparently, mag wheels may be an accessory of the car (Zendel 92 ATC at 4515).
If the description of something as a part does not depend on its significance to the performance of a good’s function, it is not easy to see why that is not equally true of an “accessory”. There is no doubt that the definition of accessory suggests that it plays a subordinate, rather than principal, role in bringing about a result or effect; I do not think it follows, however, and I do not think that authority requires it to be held, that if the thing is essential to the performance of the principal function of another thing, it cannot be an accessory of that other thing. If something contributes to the working of a principal item or its general effect or appearance and, furthermore, is manufactured specifically for use with that principal item, why should it be regarded as an accessory only if it is not necessary to enable the principal item to do what it is designed to do? Such a conclusion, in context, seems to me by no means wholly rational.
Turning now to the matter before me, there can be little room for disagreement about the fact that Amoena’s mastectomy bra is designed and manufactured for the purpose of allowing its user to insert a breast form into the pocket of that bra. It also has other features to which I have referred above which make it particularly suitable to alleviate, to some extent, the discomfort and retention of a breast form, which is essentially an artificial device manufactured to resemble the human breast.
Amoena makes no secret of the fact that its mastectomy bra can be used by women who have not undergone breast surgery. Were it otherwise, it would, undoubtedly, be far less attractive to women who have had a mastectomy. The principal purpose of using a breast form with a bra which is capable of securely and comfortably restraining that device is to avoid a woman who has had a mastectomy from appearing disfigured. In other words, it has all the features of a normal bra in addition to the special features which make it ideal for use in conjunction with the owner’s breast forms.
It is, in my opinion, correct to say that the primary function of the mastectomy bra is to support the breast form in such a manner as to make the use of that appliance more acceptable and comfortable. I agree with Mr Slonim’s submission that while the bra resembles the appearance and has the femininity associated with the fashion bra, it is, in essence, an accessory to Amoena’s breast form. It brings about the subordinate result of allowing a woman to comfortably and securely use an artificial breast so as to overcome the serious disfigurement and other likely complications arising from imbalance following breast surgery. It plainly contributes to the working of the artificial breast and is suitable for use principally with that device.
It follows I must find that Amoena’s mastectomy bra should be classified to heading 9021 or 9033.00.00 of the Tariff Act. It is an accessory to an artificial part of the body. That being the case, it cannot be classified to chapter 62 as contended for by Customs.
CONCLUSION
I have found that Amoena’s mastectomy bra is not an orthopaedic appliance and therefore cannot be classified to Heading 9021. It does not satisfy the definition of an orthopaedic appliance for the purposes of Heading 9021 as described in Note 6 of Chapter 90. It does not prevent or correct bodily deformities or support or hold parts of the body following an illness, operation or injury.
Also, I have found that the mastectomy bra cannot properly be described as a part of the breast form or prosthesis with which it is designed to be used. Although designed to be used in conjunction with the prosthesis, it is not a part of that artificial device.
However, I have found that the mastectomy bra is an accessory as it is suitable for use principally with the breast form. The fact that it can be used without a prosthesis by a woman who has not had a mastectomy does not alter its nature. It is not simply an item of clothing. Its special features make it attractive for wearing by women who have undergone breast surgery but do not wish to appear as having been deformed as a result of that procedure. In fact, it is marketed as a mastectomy bra because of its special features.
I find that each of the decisions made by Customs regarding the classification of the mastectomy bras in respect of which duty was paid under protest was incorrect. I set aside those decisions and remit the matter to Customs for assessment in accordance with my findings.

81.

82.

83.     I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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Associate
Dated   31 May 2016

Date of hearing 8 – 10 March 2016

Counsel for the Applicant Jonathan Slonim

Solicitors for the Applicant Hunt and Hunt

Counsel for the Respondent Zoe Maud

Division	GENERAL DIVISION
File Number(s)	2014/5290 2015/1691 2015/5422 2016/1341
Re	Amoena Australia Pty Ltd
APPLICANT
And	Chief Executive Officer of Customs
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	31 May 2016
Place	Melbourne

Date of hearing	8 – 10 March 2016
Counsel for the Applicant	Jonathan Slonim
Solicitors for the Applicant	Hunt and Hunt
Counsel for the Respondent	Zoe Maud