Barry R. Liggins Pty Ltd v Comptroller-General of Customs

[1991] FCA 650

Re: BARRY R. LIGGINS PTY. LIMITED
And: COMPTROLLER-GENERAL OF CUSTOMS; COLLECTOR OF CUSTOMS (NEW SOUTH WALES);
COLLECTOR OF CUSTOMS (WESTERN AUSTRALIA); COLIN IVAN HARDMAN; KENNETH E.
WILLIAMS and COMMONWEALTH OF AUSTRALIA
No. G175 of 1991
FED No. 650
Customs and Excise
103 ALR 565
(1991) 32 FCR 112

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION
Lockhart(1), Beaumont(2) and Gummow(3) JJ.

CATCHWORDS

Customs and Excise - Customs tariff - classification of goods for duty - obstacle tape made of steel - flat strips of coiled steel with barbed clusters - whether "barbed wire" or "twisted hoop...barbed or not...of a kind used for fencing" - use of Explanatory Notes prepared under the Brussels Convention on Nomenclature for the Classification of Goods in Customs Tariff as an extrinsic aid to the interpretation of the Customs Tariff Act 1987 - Customs Tariff Act 1987 Item 7313.00.00 in Ch 73 of Sch 3 - Acts Interpretation Act 1901, s.15AB(1).

Words and Phrases - "Barbed wire" "Twisted hoop"

HEARING

SYDNEY

#DATE 28:10:1991

Counsel and solicitors Mr C.J. Stevens instructed by Baker and McKenzie
for Appellant:

Counsel and solicitor Mr A.H. Slater instructed by
for Respondents: Australian Government Solicitor

ORDER

Appeal dismissed, with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

I agree with the judgment of Beaumont J. and with the orders which he proposes.

JUDGE2

This appeal is concerned with the correct classification of certain goods for the purposes of the customs tariff. The appellant, Barry R. Liggins Pty. Limited ("Liggins"), carries on business in Australia of importing, and distributing, electronic detection systems and physical deterrents, including barbed wire entanglements. In June 1990, Liggins imported certain goods, ("the subject goods") described by their manufacturer, American Security Fence Corporation, as a "barbed tape obstacle". The goods are marketed by their manufacturer under the trade name "Instabarrier". For customs purposes, Liggins entered the subject goods for home consumption as Item No. 7313.00.00 ("the Item") in Chapter 73 of Schedule 3 of the Customs Tariff Act 1987. Chapter 73 relevantly provides as follows:

"CHAPTER 73

Articles of iron or steel Notes.

...

2. In this Chapter 'wire' means hot or cold-formed products of any cross-sectional shape, of which no cross-sectional dimension exceeds 16 mm.

...

"7313.00.00 BARBED WIRE OF IRON OR STEEL; TWISTED HOOP OR SINGLE FLAT WIRE, BARBED OR NOT, AND LOOSELY TWISTED DOUBLE WIRE, OF A KIND USED FOR FENCING, OF IRON OR STEEL"

1. For the Item, the rate prescribed is "free".

2. A dispute having arisen as to the correct classification of the goods for the purposes of the Customs Tariff Act, Liggins instituted proceedings in this Court under the Administrative Decisions (Judicial Review) Act 1977. Various relief was sought but at the trial the only live issue concerned the making of a declaratory order that the subject goods were correctly entered by Liggins.
   The background facts

3. In its advertising material, which was in evidence, American Security Fence described its product as follows:
   

"This newest innovation in rapid replacement antipersonnel barriers provides 30 meters of a 40" diameter (the product is also available in other diameters) helical Barbed Tape constructed from austenitic stainless steel... A unique configuration restricts relative movement of adjacent coils which makes possible instant emplacement, rapid recovery and limitless reuse. It is housed in a unique cannister specially designed for Military and Police use in varying climatic and terrain conditions. Other significant features include:

. INSTANT BARRIER can be dispensed in seconds either manually or vehicularly. . It can be quickly recovered for repeated reuse. . The Barbed Tape is concealed until the moment of need. . A quick-connect feature makes it possible to dispense multiple units side by side simultaneously."

1. In another advertisement, it was claimed of "Instabarrier" that "(i)ts flexibility makes it the most versatile barbed tape available, being used on building faces, fence tops and even across swing gates and around corners". The product was depicted in the advertisement thus:
   

(advertisment omitted)

1. In his affidavit in evidence at the trial, Mr S.P. Brock, Vice-President, International Department, American Security Fence, explained the use for which "Instabarrier" was designed, and its cold-formed process of manufacture, as follows:
   

"3. InstaBarrier is designed for use as a maximum security product. When attached in coils, as specified, this rapid deployment obstacle encloses and controls endangered areas. InstaBarrier is fabricated in diameters of 600 mm, 760 mm, 1000 mm and 1500 mm. Clusters of four barbs are punched 10 cm on center. Barbs have an average length of 60 mm from tip to tip. Adjacent coil loops are alternatively spot welded at 5, 7 and 13 points, respectively, to the prestated diameters. Jacketed stainless steel wire ropes are attached to each coil loop along the length of the obstacle. InstaBarrier is produced at 101 loops per coil."

...

12. InstaBarrier is fabricated through a multiple die arrangement emplaced in a 110 ton punch press. The beginning of the die punches out the barb clusters. The end of the die puts in a small dent, or crimp, into the material. This crimp forces a bend in the flat steel, resulting in a permanent continuous circular coiling loop.

13. InstaBarrier, as stated, is fabricated into a concertina form, that is, it is a continuous roll containing 101 loops that can be deployed, or spread out, like a concertina, or accordian. It can also be collected back together into a tight roll. Because of the crimp being permanently pressed into the steel, InstaBarrier always retains its coiled concertina shape and form. It is not possible to straighten InstaBarrier and, hence, install in a straight plane."

1. The subject goods were described in evidence by Mr B.R. Liggins, the managing director of Liggins, as "4,800 metres of 1,500 mm diameter, stainless steel 301 grade Instabarrier." This description accorded with the documentation of the transaction in evidence.

2. There was evidence from Mr Brock that the cross-sectional dimensions of the subject goods, being the width of the flat steel, exclusive of the barbs, was 14.3 mm.

3. American Security Fence's technical specification for what it described as the "Instabarrier Rapid Deployment Obstacle" was as follows:
   

"Rapid Deployment Obstacle shall be (600, 750, 1000, 1500) mm in diameter, fabricated from AISI 301 series Austenitic Stainless Steel strip hardened to Rockwell (30N) 50-55. Stainless Steel strip shall be .64 mm thick by 32 mm wide before fabricating. Barb clusters shall consist of four (4) barbs punched 100 mm on center. Barbs shall be oppositely offset 3.8 mm - 11.4 mm from the plane, of the tape centerline. Each barb length, from tip to tip, shall be 60 mm. Coils shall have (21, 24, 30, 45 + 1 barb cluster per loop, and each roll shall consist of 101 loops. Adjacent coil loops shall be alternately spot welded at (5.5, 7, 13) points of approximately equal spacing about the perimeter to form a concertina configuration. Each welded attachment shall be capable of withstanding a minimum tensile load of 181 kilos. (1.1, 1.2) jacketed stainless steel wire rope(s), 7 x 7 strand 1.2 mm x 2 mm minimum diameter shall be attached to each coil loop along the length of the obstacle. Wire rope(s) shall fix the concertina opening at 300 mm + 50 mm. Roll covers 15 m."

1. There was in evidence a catalogue published by American Security Fence in which the following diagrams appeared:
   

(DIAGRAM OMITTED)

1. There was in evidence the following sample of "Instabarrier" barbed tape:
   

(DIAGRAM OMITTED)

1. The arrows indicate localised crimp marks placed at 100 mm intervals; there was evidence that these marks produce a localised "shrinkage" of the material at these locations and this effectively causes the tape to adopt a coil configuration.
   The decision at first instance

2. The learned primary judge rejected a submission, put on behalf of Liggins, that the product was "barbed wire" or "single flatwire" within the meaning of the Item. The judge said:
   

"I think the cross-sectional dimension of the relevant product exceeds 16 millimetres. I do not think it is possible to sensibly measure the cross-sectional dimension without reference to the barbs.

(It will be recalled that in Note 2 to Chapter 73 in the definition of "wire", it was stated that the Product was not to exceed 16 mm in cross-sectional shape.) In some forms of barbed wire and, indeed, in the one most commonly manufactured and used, the wire consists of a carrier wire (or more usually two carrier wires) to which barbs are attached at intervals. In such a case it may well be possible to regard the barbs and the carrier wires as discrete objects. But in the case of the product under consideration that does not seem to me to be the case. The barbs are an integral part of the strips of metal which go to make up the product.

Mr Stevens (on behalf of the appellant) also argued that the reference to 'wire' in the expression 'barbed wire' in Item 7313.00.00 should be taken as referring only to what he would term the carrier part of the product and not to the barbs. Whatever might be the validity of that argument in respect of more conventional barbed wire, I do not think it can apply to the product which falls to be classified."

1. The judge also dealt with an alternative argument advanced for Liggins, that the product was "twisted hoop...barbed or not...of a kind used for fencing" which fell within the description in the Item according to its ordinary meaning. The judge said:
   

"If this case fell to be decided only on the question whether this product comes within the definition of hoop, I would be inclined to uphold Mr Stevens' alternative submission. However, with some hesitation, I have come to the conclusion that this product cannot properly be described as 'twisted hoop'.

It is true that the product is coiled and that in the course of manufacture it becomes slightly twisted. But I accept Mr Slater's argument (for the Comptroller-General) that twisting involves rotation around the long axis and I think it is proper to regard the product as being looped rather than twisted."

1. It was also then argued for Liggins, that the classification of the subject goods for which it contended was supported by the Explanatory Notes prepared by the Committee established by the Convention on Nomenclature for the Classification of Goods in Customs Tariffs, Brussels, 1950 ("the Brussels Notes"). With respect to the Item, Chapter 73 of the Brussels Notes, headed "Iron and Steel", provides relevantly as follows:
   

"This heading (which is in the same terms as the Item including the Notes to the Chapter) covers the following types of fencing or enclosure hoop and wire (wire being defined in Chapter Note 2):

(1) Barbed wire consisting of iron or steel wires twisted together rather loosely, with barbs or sometimes small sharp pieces of strip metal at frequent intervals.

(2) Narrow flat hoop or wire toothed at intervals and used as an alternative to barbed wire.

(3) Twisted hoop or single flat wire. This ribbon fencing wire is often used under the name of 'torsades'. It consists of narrow hoop, strip or flat wire which may be lightly twisted. These goods fall in the heading whether or not they are barbed.

(4) Loosely twisted wire consisting of two wires of iron or steel and clearly suitable for fencing uses. This is also known as 'torsades'.

The heading also includes 'dannerts' and similar barbed wire entanglements, sometimes already mounted on wooden or metal poles, used for military purposes, for fencing etc. The hoop and wire used are generally galvanised or otherwise coated (e.g., covered with plastics).

The heading excludes closely twisted stranded wire or cable, also sometimes used for fencing (heading 73.12)."

1. The primary judge rejected this argument also, saying:
   

"It is fair to say that the explanatory notes refer to hoop being 'lightly twisted' and in one sense it might be said that the evidence supports the view that this product is lightly twisted, but looking at the matter in the broad and as one would see the product at the customs barrier (which is the test adopted in the cases), I do not think it would be recognised as answering the description of twisted hoop."

Liggins' arguments on the appeal

1. Liggins present arguments may be summarised as follows.

2. The appeal raises two ultimate issues: (1) If the product be "barbed wire", does the definition of "wire" limit itself to the carrier portion of the strips in determining the cross-sectional dimension? (2) Alternatively, is the product "twisted hoop...barbed or not...of a kind used for fencing"?

3. Developing the second argument, the following points are sought to be made on behalf of Liggins'. As to "twisted hoop": "twisted" extends, in its dictionary meaning, to something that is coiled; additionally, there is a rotation of 90 degrees in the longitudinal axis; a "wharfside" classification is appropriate here and such an inspection indicates twisting and/or coiling; if the meaning of the classification is not clear, the Brussels Convention can be used as an aid to construction; the Convention indicates that the classification extends to "dannerts and similar barbed wire entanglements...used for military purposes"; alternatively, the product falls within the Convention's description of "narrow flat hoop...toothed at intervals and used as an alternative to barbed wire"; a further, and alternative, description used in the Convention now applicable is "(lightly) twisted hoop or single flat wire".

4. In support of the first submission, as to the classification of the product as "barbed wire", it is argued that the Convention refers solely to the wire portion when imposing a limitation of cross-sectional dimension of 16 mm; the wire is the carrier for the "barbs", which should be considered as discrete aspects, separate from the flat wire; the wire product can only be the carrier part of the product - the barbs are something additional even if manufactured from the same strip.

5. Before considering these arguments in their detail, it is first necessary to consider whether it is permissible, as a matter of law, to use the Brussels Notes as an extrinsic aid to the interpretation of the Customs Tariff Act.
   Is it permissible to use the Brussels Notes as an aid to the construction of the Customs Tariff Act?

6. In D. and R. Henderson (Mfg) Pty. Ltd. v Collector of Customs for the State of New South Wales (1974) 48 ALJR 132, Mason J. said (at 135):
   

"Although the Customs Tariff 1965 and the relevant amendments to it were enacted before Australia ratified the Convention, notwithstanding the absence in the Act of any reference to the Convention, it is evident that the Act adopted the Convention Nomenclature in anticipation of subsequent Australian ratification. If the language of a statute is ambiguous it is permissible to refer to the provisions of an international convention to which the statute is intended to give effect in order to assist in resolving an ambiguity, even if the statute is enacted before ratification of the convention... However, as it happens, in my view the Convention and its Annexes do not provide any assistance over and above that which is to be obtained from the language of the statute itself. Item No. 48.07 and its heading are taken from the Annex to the Convention. Explanatory notes relating to the headings have been prepared by the Nomenclature Committee established by the Convention. Whether the explanatory notes prepared by the Committee are a permissible aid to the construction of the statute is open to question. It is not a matter which need be explored, because neither party suggested that the notes justified an interpretation differing from that which should in any event be placed on the language of the statute."

1. An appeal to the Full High Court was dismissed: see (1975) 7 ALR 104. However, Barwick C.J., Stephen and Murphy JJ. (at 106) left open the specific point raised by Mason J. (On the general question of recourse to a treaty as an aid to statutory construction see now also Fothergill v Monarch Airlines Ltd. (1981) AC 251; Enzed Holdings Ltd. v Wynthea Pty. Ltd. (1984) 57 ALR 167 at 181; Thiel v Commissioner of Taxation (1990) 171 CLR 338; Regina v Secretary of State for the Home Department (1991) AC 696).

2. Reverting to the particular point now being considered, in Re Bloomfield (1981) 4 ALD 104, the Administrative Appeals Tribunal (Mr R.K. Todd, Senior Member) expressed the opinion (at 212) that the Brussels Notes "are at most a secondary guide to the interpretation of the Customs Tariff Act and courts and tribunals in Australia look first to the existing municipal law when interpreting the Customs Tariff Act." This approach was endorsed by the Administrative Appeals Tribunal (Davies J. presiding) in Re Hostar Agencies and Collector of Customs (1981) 4 ALD 308 at 315. A similar approach was taken by the Tribunal, differently constituted, in Re Sterns Playland Pty. Ltd. and Collector of Customs (No. 2) (1982) 4 ALD 562. A.N. Hall (Senior Member), P.C. Wickens and L.G. Oxby (Members) said (at 571):
   

"28 There are difficulties in evaluating the persuasive weight (if any) which should be accorded to the explanatory notes. It is necessary to be satisfied, firstly, that the goods referred to in the notes are sufficiently similar to those under consideration before the Tribunal for the Committee's view to be taken in account. Secondly, in so far as the notes simply present a conclusion, it is difficult to know how extensive was the Committee's consideration of the matter or what were the reasons which led the Committee to conclude as it did."

1. Reference should now be made to the relevant provisions of s.15AB of the Acts Interpretation Act 1901, which provision was inserted into that Act in 1984. By s.15AB(1) it is relevantly provided:
   

"15AB(1)...in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act, or

(b) to determine the meaning of the provision when -

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable."

1. In Gardner Smith Pty. Ltd. v Collector of Customs, Victoria (1986) 66 ALR 377, the Full Federal Court (Keely, Neaves and Wilcox JJ.) considered whether, by reason of the provisions of s.15AB(1) of the Acts Interpretation Act, regard could be had to Brussels Notes as evidence "capable of assisting in the ascertainment" of Schedule 3 to the Customs Tariff Act 1982. The Court said (at 383-4):
   

"The argument that the Tribunal was in error in giving consideration to the explanatory notes was based on the applicant's contention that the words 'or otherwise modified' in item 15.08 were not ambiguous or obscure nor, if given their ordinary meaning, would it lead to a result that was manifestly absurd or unreasonable. But it is plain that, to limit the use of extrinsic material to such circumstances - circumstances obviously referable to para 1(b) of s 15AB of the Acts Interpretation Act 1901 - is to deprive para 1(a) of that section of any operation. Even if it could properly be said that the Tribunal was in error in regarding the meaning of 'modified' in item 15.08 as obscure - a proposition which it is difficult to accept having regard to the arguments presented - it would not follow that the court should intervene. It would, as we think, have been open to the Tribunal to consider the explanatory notes in order to confirm the meaning which, on the other material available to it, it considered the expression bore having regard to its context in the Tariff Act."

1. More recently, in Re Bolton; Ex parte Beane (1987) 162 CLR 514, Mason C.J., Wilson and Dawson JJ. said (at 517-8):
   

"...given that s.19 is ambiguous, consideration may be given in ascertaining the meaning of the provision to the second reading speech of the Minister when introducing the Bill for the Act into the House of Representatives in 1963: Acts Interpretation Act 1901 (Cth), as amended, s.15AB. That speech quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."

1. It will be recalled that in Henderson's Case, Mason J. referred to the circumstance that the ratification of the treaty by Australia occurred after the enactment of the customs tariff legislation applicable there. In the present case, this particular complication does not arise, since we are here concerned with the Customs Tariff Act 1987, which was enacted after the publication of the Brussels Notes. However, although the Customs Tariff Act 1987 refers to the International Convention of the Harmonised Commodity Description and Coding System done at Brussels in June 1983 (see Schedule 2, adopting the "General Rules for the Adoption of the Harmonised System"), the 1987 Act makes no reference to the Brussels Notes. It follows, in my opinion, that the problem discussed by Mason J. in Henderson's Case still remains. That is, that although it may be permissible to refer to extrinsic material where the statute is ambiguous, it does not follow that the extrinsic material can be used to contradict the meaning of the language of an Act of Parliament, that meaning being taken from its proper statutory context. Put differently, as E.J. Cooper points out in his work "Customs and Excise Law" (Cumulative Supplement to 30 June 1985 at 9):
   

"...(the Brussels Notes) are a secondary guide only and cannot displace the plain words of the statute..., or be used when there is no ambiguity in the legislation, eg a doubt cannot be created by the use of the Explanatory Notes and then have the doubt settled by reference to the same notes."

1. In my opinion, these comments are equally applicable in the present case.

2. It is convenient to consider the possible application of each provision of the Item separately.
   Are the subject goods "barbed wire of...steel" within the meaning of the Item?

3. Leaving aside for the moment the restriction on the cross-sectional dimension, the question arises whether the subject goods can properly be classified as "barbed wire" in the present statutory context.

4. It is common ground that the goods are made "of steel". But what is meant by "barbed wire" in the Item?

5. In Henderson's Case, Mason J. said (at 135):
   

"Although it may be acknowledged that in a statute such as the Customs Tariff, the Court will the more readily conclude that items have been described according to common commercial or trade usage and that the words have not been used in the natural and ordinary sense, the evidence does not satisfy me that the words in the relevant customs tariff item have a meaning which according to commercial and trade usage differs from their natural and ordinary meaning."

See also The Comptroller-General of Customs v Robert Bosch (Australia) Pty. Ltd., (unreported, Gray J., 26 April 1991).

1. Before going to the dictionary meaning of "barbed wire", reference should be made to the dictionary definitions of "wire" itself. The primary meaning, according to the Macquarie Dictionary, is: "a piece of slender, flexible metal, ranging from a thickness that can be bent by the hand only with some difficulty down to a fine thread, and usu. circular in section." Another definition of "wire" is "a barbed-wire fence."

2. According to the Macquarie Dictionary, the meaning of "barbed wire" is defined as:
   

"steel wire to which barbs are attached at short intervals, used largely for fencing in livestock, protecting a defensive military position, etc."

1. No other definitions of "barbed wire" are offered. It appears that there was no evidence before the primary judge to indicate the existence of a meaning of the term "barbed wire" which is different from its ordinary dictionary meaning. Reference has already been made in the reasons to a catalogue produced by American Security Fence containing illustrations of, and distinguishing between, "barbed tape" and "barbed wire". There was also in evidence the Australian Standard for Galvanized Wire Fencing Products (1980), published by the Standards Association of Australia, which described the construction of "barbed wire" by reference to a diagram similar to that in the American Security Fence publication. In the Standards Association's text, mention is made of the galvanised steel wire used for the "line wire" around which the barbs are twisted.

2. As has been said, in its catalogues, American Security Fence has distinguished between "barbed tape", of which Instabarrier is an example, and "barbed wire", as defined by the dictionary, on the other. In my opinion, this distinction is applicable in the present case. Although the subject goods consist of a flat strip of coiled stainless steel with barb clusters,I think it would be wrong to classify the subject goods as "barbed wire of steel" within the meaning of the Item. In my view, these goods are not "barbed wire" in either the ordinary sense of that term or in its commercial sense. "Instabarrier" cannot properly be described as a "piece of slender, flexible metal...(usually) circular in section." On the other hand, according to the Macquarie Dictionary, the definitions of "tape" include: "a long narrow strip of paper, metal, etc." That, in my view, is a proper description of this part of the subject goods.

3. In short, in my opinion, applying a practical "wharfside" test (see Times Consultants Pty. Ltd. v Collector of Customs (Qld.) (1987) 16 FCR 449 at 463) the subject goods are "barbed tape" and not "barbed wire". For this reason alone, I think that "Instabarrier" is not within the Item.

4. It is not necessary, in this connection, to consider the cross-sectional dimension.

5. Further, in the present context, it is unnecessary to consider the explanations offered in the Brussels Notes. There is not, in my view, any ambiguity in the phrase "barbed wire" where used in the Item. The meaning of the primary material being clear, there is no need to resort to a secondary source (cf. Swan Portland Cement Ltd v Minister for Small Business and Customs (1991) 22 ALD 446 at 452, per Lockhart J.).
   Are the subject goods "twisted hoop...barbed...of a kind used for fencing...of steel"?

6. The primary question here is to ascertain the meaning, in this context, of "twisted hoop".

7. Turning first to the dictionary meaning of "hoop", the Macquarie offers several definitions of which the following appears to be presently relevant:
   

"1. A circular band or ring of metal, wood or other stiff material."

1. There was in evidence before the primary judge several technical descriptions of the processes of manufacture, shaping and treatment of steel products in which reference was made to "hoop" products. For instance, in one of United States Steel's publications, "hoop" was described, as one of several narrow "flat-rolled" steel products, as follows:
   

"Hoop - There are four general classifications of this type of product: (1) tight cooperage hoop for barrels to hold liquids, (2) slack barrel hoop for barrels to hold dry products, (3) tobacco barrel hogshead hoop, and (4) special hoop for special packages.

Hoop (except tight cooperage hoop) is made from steel in the 0.08 to 0.10 per cent carbon content range. Tight cooperage hoop is generally made from open-hearth steel having a carbon content of 0.30 to 0.35 per cent carbon. Hoop is made either by slitting coiled strip, rolled in multiple width, into narrow coiled strip of the desired width; or, from narrow coiled strip with a hot-rolled or mill edge. The type and width of hoop being produced influences the choice of method used.

Hoop is produced in widths increasing in increments of 1/3 of an inch, beginning with a minimum of 1 1/3 inches and extending to and including 2 inches. It is made in thicknesses between 0.025 to 0.049 inches. It is prepared in cut lengths for making hoops ranging from 2 feet 8 1/2 inches to 8 feet 6 inches in circumference. Automatic machines are used in the fabrication of hoop. ... These machines are so designed that the strip from the coil, passing through a machine in a horizontal position, is first run through rolls in which a slight bend is made on the edge to be beaded. This is followed by a beading operation, done in forming dies that operate horizontally at approximately 400 strokes per minute. The beaded strip next moves into a combination shear and rivet-hole punching die, where it is sheared to a specified length, and where the rivet holes are punched. Hoop is produced as "curled hoop" or a "straight length." Curled hoop is made by a pinch-roll and curved guide-shoe arrangements that permits the hoop to take a circular form. A straight length hoop is produced merely by removing the curved guide shoe."

1. What is meant here by "twisted" hoop? The evidence did not suggest that "twisted" had any special or technical meaning. According to the several definitions of the verb "twist" offered by Macquarie, the following appear to be possibly relevant here:
   

"1. to combine, as two or more strands or threads, by winding together; intertwine.

2. to combine or associate intimately.

3. to form by or as by winding strands together.

4. to entwine (one thing) with or in another; wind or twine (something) about a thing.

5. to encircle (a thing) with something wound about.

6. to alter in shape, as by turning the ends in opposite directions, so that parts previously in the same straight line and plane are situated in a spiral curve.

10. to form into a coil, knot, or the like by winding, rolling, etc.: to twist the hair into a knot.

19. to turn or rotate, as on an axis; revolve, as about something.

21. to change shape with a spiral or screwing movement of parts."

1. As has been said, it is accurate to describe the subject goods, consisting of a flat strip of coiled stainless steel with barbed clusters, as "obstacle (or barbed) tape". In this sense, the goods are not, in my view, "hoop". Nor, in my opinion, are the goods "twisted". Rather, they are "coiled". According to the first definition offered by Macquarie, to "coil" is "to wind into loops one above another; twist or wind spirally: to coil a rope". There is, I think, a difference between a coiled rope and a twisted rope. Again, applying a practical, "wharfside" test, the subject goods may properly be described as barbed obstacle tape used in coils rather than twisted hoop.

2. In this context also, it is not necessary to resort to secondary sources, e.g., the Brussels Notes.

3. I would dismiss the appeal, with costs.

JUDGE3

I have had the advantage of reading the Reasons for Judgment of Beaumont J. I agree that the appeal should be dismissed with costs and for the reasons given by his Honour.