Chief Executive Officer of Customs v W and D Engineering Pty Ltd
[1999] FCA 460
•19 APRIL 1999
FEDERAL COURT OF AUSTRALIA
Chief Executive Officer of Customs v W & D Engineering Pty Ltd
[1999] FCA 460CHIEF EXECUTIVE OFFICER OF CUSTOMS v W & D ENGINEERING PTY LTD
VG 2 OF 1998
RYAN J
19 APRIL 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 2 OF 1998
ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS
TRIBUNAL
BETWEEN:
CHIEF EXECUTIVE OFFICER OF CUSTOMS
ApplicantAND:
W & D ENGINEERING PTY LTD
RespondentJUDGE:
RYAN J
DATE OF ORDER:
19 APRIL 1999
WHERE MADE:
MELBOURNE
MINUTES OF ORDER
THE COURT ORDERS:
1.That the application be granted.
2.That the decision of the Tribunal be set aside.
3.That the decision of the delegate of the applicant, the subject of the application to the Tribunal, be affirmed.
4.That the respondent pay the applicant’s costs of the application.
AND THE COURT DECLARES:
That the respondent’s palletisers and depalletisers are not “robotic machines” as defined in s 4 of the Bounty (Machine Tools and Robots) Act 1985.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 2 OF 1998
ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS
TRIBUNAL
BETWEEN:
CHIEF EXECUTIVE OFFICER OF CUSTOMS
ApplicantAND:
W & D ENGINEERING PTY LTD
Respondent
JUDGE:
RYAN J
DATE:
19 APRIL 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application by way of appeal under s 44 of the Administrative Appeals Tribunal Act1975 (“the AAT Act”). On 11 December 1997, the Administrative Appeals Tribunal (“the Tribunal”) constituted by Deputy President G. L. McDonald and Members, Mr A. Argent and Brigadier C. Ermert set aside a decision of a delegate of the applicant, the Chief Executive Officer of Customs which had been affirmed on review. That decision was to the effect that certain machines being palletisers and depalletisers manufactured by the respondent, W & D Engineering Pty Ltd (“W & D Engineering”) did not qualify for a bounty under s 21(3) of the Bounty (Machine Tools and Robots) Act1985 (“the Bounty Act”). To qualify in that way, it was necessary for the palletisers and depalletisers to come within the definition of “robotic machine” within s 4 of the Bounty Act. That definition was in these terms:
“‘robotic machine’ means a completely assembled power fed machine that:
(a)is controlled by an integrated computer controller:
(b)consists of:
(i)a structure with mechanical linkages and joints capable of handling objects by simultaneous movements in 2 or more axes; or
(ii)a prescribed structure;
(c)is designed to operate independently of human control when the computer controller that controls it is programmed; and
(d)utilises:
(i)a system known as pick and place;
(ii)a system known as playback (point to point);
(iii)a system known as playback (continuous path); or
(iv)a prescribed system; and
(e)if it were imported into Australia, would be goods to which:
(i)a heading in Chapter 84 or 85 in Schedule 3 to the Tariff Act; or
(ii)a heading in Schedule 3 to the Tariff Act determined by the Minister by instrument in writing;
would apply;
not being:
(f)an automatic guide vehicle;
(g)a teleoperated equipment; or
(h)a machine included in a class of machines in respect of which a declaration under subsection 6(5) is in force; or
(i)lifting and handling machinery, known as a skip handling machine, to which subheading 8422.30.00 in Schedule 3 to the Tariff Act would apply if the machinery were imported into Australia.”
The Tribunal noted in its reasons that none of the exclusions contained in paragraphs (f), (g), (h) or (i) of that definition had any application to W & D Engineering’s palletisers and depalletisers. It was also noted as common ground that those palletisers and depalletisers did not consist of a “prescribed structure” as stipulated in paragraph (b)(ii) and did not utilise a “prescribed system” as contemplated by paragraph (d)(iv).
After the uncontroversial conclusion that the requirements in each of paragraphs (a) to (e) were cumulative, the Tribunal considered, first, whether W & D Engineering’s palletisers and depalletisers were “robotic machines” within the meaning of s 4(b)(i). The Tribunal’s analysis of this question was set out as follows in paragraph 7 of its reasons:
“The Act provides a detailed and express definition of what is to constitute a ‘robotic machine’ in s 4 of the Act. The first step is to determine whether there is an ordinary meaning which can be given to the words used in the definition and, if so, what it is. The words used in s 4(b)(i) are, in the opinion of the Tribunal, able to be given an ordinary meaning. That there are no technical words used is not fatal to a finding that ordinary words used in a particular context, bearing in mind the overall purpose for which the legislation was passed, can be found to have a trade usage. It is as well first to see, however, whether the use of the words, having regard to their ordinary meanings, can result in the applicant’s machinery failing to meet the criteria. It is not disputed that the applicant’s machinery consists of ‘a structure with mechanical linkages and joints capable of handling objects’. Nor is it disputed that the objects can be handled ‘…by simultaneous movements in two or more axes’. It is obvious from watching the video of the machinery operating that goods are able to be progressed in one direction while simultaneously other goods are turned so that they face another direction. That action is achieved through the structure using mechanical linkages and joints capable of handling objects. Accordingly, each of the four machines satisfies the definition because it evidences the capability of the machinery to handle objects by simultaneous movement in two axes. What, however, is disputed is not so much the meaning of the words, with perhaps one exception, but rather it contends that a specialised meaning should replace the ordinary meaning which can be attributed to the criterion. The exception relates to the use of the word ‘handling’ and the Tribunal will return to this in paragraph 9.”
A review was then undertaken of the evidence of Dr Kassler, an expert witness called on behalf of the Chief Executive Officer of Customs, but the Tribunal rejected his contention that the phrase “handling objects” in paragraph (b)(i) of the definition connoted the transfer of a unit load from one pose to another by means of a “hand or end effector” analogous to a biological hand and joined to an “arm” by an articulated link similarly analogous to a biological wrist.
The Tribunal also rejected Dr Kassler’s contention that the Bounty Act was designed to confine payment of the bounty to what could be described as “high technology” robots in which he included trajectory operated robots capable of controlling more than one axis simultaneously when affecting motion from one robot pose to the next. In Dr Kassler’s opinion, a “sequence” robot having a control system in which the state of machine movements occurs axis by axis in a desired order, the completion of one movement initiating the next, was not of the requisite “high technology” category to attract the bounty. In rejecting Dr Kassler’s approach, the Tribunal observed, in paragraph 11 of its reasons:
“There is no dispute as to the meanings to be ascribed to the words in s 4(b), and neither party suggests any of the words should be ascribed a technical meaning. What the respondent seeks to do, however, is to apply a trade understanding of what is constituted by a ‘robot’ and incorporate that meaning into the term ‘robotic machine’. Where, as is the case here, the statute sets out the criteria which must be fulfilled before a machine can be determined to be a robotic machine then it is not legitimate, in the view of the Tribunal, to seek by ascribing a trade usage to narrow the field so as to exclude machinery which otherwise falls within the ordinary meaning arising from the use of the words set out in the nominated statutory criteria. There is no warrant for the Tribunal adopting an interpretation that would narrow the ordinary meaning which would otherwise be given to the words used in the section. Dr Kassler seems to have taken the view that the two types of robot he describes are, for purposes of satisfying the definition contained in the Act, mutually exclusive. There is nothing in the definition which excludes both sequenced and trajectory robots from falling within the definition so that both qualify to be eligible for payment of a bounty. If the legislature had meant to exclude the more unsophisticated robots from the benefits of receiving a bounty it could easily have confined the definition to extend to trajectory robots only. If the legislature had meant to confine the definition in s 4(b)(i) in the way urged on the Tribunal by acceptance of Dr Kassler’s evidence, it would have been a simple matter of including the word ‘one’ before the word ‘objects’ in the second line and making the latter word singular. That the legislature has not done so leaves the Tribunal satisfied that the definition should not be read narrowly so as to exclude the applicant’s robotic machines from its ambit.”
On the remaining question of whether W & D Engineering’s palletisers and depalletisers fell within paragraph (d)(i), (ii) or (iii) of the definition, the Tribunal considered that the descriptions of systems known as “pick-and-place” “playback (point-to-point)” and “playback (continuous path)” were of a trade or technical kind. By way of illustrating the trade or technical meanings of those expressions, the Tribunal referred to these passages from the 1982 Australian Science and Technology Council (“ASTEC”) Report:
“‘Pick-and-place’ robot uses a set of mechanical stops and switches to control the movements of the mechanical system. For this reason, only certain position of the arm can be specified; the arm is driven by one position to another, but without control of intermediate positions. The machine is well suited to simple repetitive tasks such as transferring parts from one machine to another and for this reason is called a pick and place robot.
‘Playback’ robots are described as having ‘…a much more extensive computer (microprocessor or mini computer) and feedback system’. Special mechanisms known as servomechanisms are used in playback robots to control each element of the mechanical structure. These mechanisms allow each element of the robot to sense how far it is from the desired position, and in which direction it must be driven so that the correct position is reached. To program a playback robot to perform a particular task, the programmer uses the servomechanisms to drive the robot to each position needed to carry out the task; the position is then recorded in the robot’s memory. The robot is ‘taught’ to do a job by driving it through each step in the task. When the robot starts operating, the computer is used to activate the servo systems. This type of robot has gained its name because it ‘plays back’ the sequence of positions from its memory when performing the required task.
Playback robots fall into two classes: those with point-to-point movement and those which continuously control the movements of the robot while moving from one point to another. In a point-to-point, the only information which is stored in the robot’s memory is the location of each robot element at the start and finish of a particular step: intermediate information is not given. Thus a particular path from one point to another cannot be followed. However, in some applications it is essential that the robot follow a particular path (to avoid hitting an obstacle, for example). Continuous path robots have a control system which allows the robot to follow a smooth, specified path between two points.”
It was then concluded as a matter of fact after viewing a video tape of W & D Engineering’s palletisers and depalletisers in operation and hearing the evidence of its managing director, Mr Durran, that the machines in question utilised the “playback (point-to-point) system”. That conclusion was expressed in these paragraphs:
“15. The applicants contend that the machines are playback robots in that each machine utilises the programmed memory of its controller to move objects from one defined point to another. The applicant did not attempt to differentiate between the point to point and continuous path descriptions of operation as applied to the machines in dispute. Essentially the difference is that a point to point system specifies only the start and finish of a particular step in the system’s operation, whereas the continuous path system also specifies the path to be followed between the start and finish point.
…
17. Based on the descriptions of the operations of the machines given in the evidence of Mr Durran, and as seen in the video, and in the absence of any sufficient evidence to support refutation from the respondent, the Tribunal is satisfied that the machines in dispute operate as playback robots. The Tribunal accepts that the machines in dispute operate as playback (point to point) robots but without direct evidence the Tribunal cannot accept that the machines operate as playback (continuous path) robots.
18. Based on these considerations the Tribunal finds that the machines in dispute meet the requirements of s 4(d)(ii), but do not meet the requirements of s 4(d)(i), (iii) and (iv). Since each of the sub-clauses of s 4(d) are to be read disjunctively, the applicant is able to satisfy the provisions of that section.”
This application raises two distinct questions. The first concerns the proper construction of paragraph (b)(i) of the definition of “robotic machine” in s 4 of the Bounty Act. The second question is whether W & D Engineering’s machines satisfy the requirements of paragraph (d)(ii) of that definition. However, before considering the substance of those questions, it is necessary first to examine whether they can be entertained by this Court.
QUESTIONS OF FACT AND LAW
The applicant has invoked the jurisdiction conferred on this Court by s 44(1) of the AAT Act which provides that:
“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
That sub-section has been held to confine the Court’s power to considering questions of law and to preclude it from reviewing findings of fact by the Tribunal. (Waterford v Commonwealth (1987) 165 CLR 54 at 77-78 and Repatriation Commission v Thompson (1988) 82 ALR 352 at 357.)
The distinction between a question of fact and a question of law is not always easy to draw and not infrequently the question may be a mixed one of fact and law. Thus, a Full Court of this Court observed in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 9:
“Distinction between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raises issues which may be or involve questions of fact or law or mixed fact and law.”
It was suggested by Isaacs J in Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 79 that the proper construction of a statutory or contractual provision, once the meaning of the words and expressions which it comprises has been ascertained, is a pure matter of law. However, reservations were expressed by the High Court in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396 about the usefulness of the distinction there drawn by Isaacs J. At all events, the High Court went on in the latter case to make clear that, because an application involves the ascertainment of the meaning of certain statutory terms, it does not follow that the question which it raises is necessarily one of fact. After referring to the passage from the judgment of Isaacs J in Phillips, the High Court remarked in Agfa-Gevaert at 396:
“The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question.”
In determining whether an application by way of appeal raises a question of law or a question of fact, one must consider the essential nature of the issue. It is appropriate for this Court to review a decision of the Tribunal where the Tribunal has been engaged in statutory construction for the purpose, for example, of reaching a conclusion about the range or extent of an Act. This was recognised by the Full Court in Pozzolanic (supra) when it said, at 10:
“The range of relationships to which the words apply for the purpose of the Act depends upon a judgment about that purpose... In the end this is not a process of fact finding. The facts are found. What is left is a value judgment about the range of the Act and that is a question of law.”
The present application requires a similar exercise in characterisation. The applicant contends that the Tribunal misconstrued paragraph (b)(i) of the definition of “robotic machine” which describes it as consisting of:
“a structure with mechanical linkages and joints capable of handling objects by simultaneous movements in 2 or more axes.”
The competing contentions of the parties focus on the meaning of “handling objects by simultaneous movements in 2 or more axes”. For the respondent it is submitted that the question raised by the applicant as to those words is only one of their ordinary meaning, which, the respondent contends, is a pure question of fact not within this Court’s jurisdiction.
In my view, the question raised by the applicant is one of construction going beyond the ascertainment of the meaning of each of the words used in paragraph (b)(i). It is not disputed that those words are to be given their ordinary meaning. Rather, the controversy is as to whether the Tribunal correctly construed paragraph (b)(i) in deciding that its range or extent comprehended W & D Engineering’s machines.
There are two competing constructions of the paragraph, on one of which W & D Engineering’s machines qualify for a bounty. On the other, for which the applicant, Chief Executive Officer, contends, they do not. Thus, in resolving that controversy, the Tribunal was required, in the words of the Full Court in Pozzolanic, to make a “value judgment about the range” of the Bounty Act. If the Tribunal erred in the formation of that value judgment, that was an error of law. The issue is therefore one of the correctness of the statutory construction adopted by the Tribunal. Since that is a question of law it is reviewable under s 41 of the Administrative Appeals Tribunals Act; Agfa-Gevaert (supra) at 397-398 and NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1955) 94 CLR 509 at 511-512.
STATUTORY CONSTRUCTION
It is convenient to resolve immediately the question, which I have just identified, of the proper construction of paragraph (b)(i). That requires consideration, first, of the meaning to be given to the language of a statute which has been enacted in the context of a particular industry or trade. When that meaning has been ascertained, it has to be determined what is the true construction to be given, in the same context, to the definition of “robotic machine” in s 4 of the Bounty Act.
Where legislation has been framed to regulate some incident of a particular industry or trade, the statutory language is to be understood according to the common usage of that industry or trade. That may require individual words forming part of a composite expression to be given their trade meaning even though the composite expression of which they form part has no accepted meaning as part of the usage of the particular trade or industry; see Agfa-Gevaert (supra) at 401-402. In applying this technique, a court does not ascribe a trade meaning to words which make sense according to their ordinary English connotation. Nor does it narrow or read down that ordinary connotation. Rather, it seeks to ascertain the meaning of the words in the context in which they have been used, especially where the words may have more than one ordinary meaning. In that case, a choice has to be made between the available ordinary meanings to identify that which is indicated as most appropriate by the context in which the words appear. Resort to this technique requiring notice to be taken of the trade meaning of a word is precluded only if the interpretation which it produces leads to a result that may be “absurd in the sense that the result may be unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, or artificial”; Agfa-Gevaert at 401. Otherwise, as the High Court went on to say in the same passage, “[C]onsideration of the trade meaning of individual words in such cases is more likely than not to lead to the interpretation that the makers of the instrument had in mind”.
The Bounty Act deals with machine tools and robots. In particular, paragraphs (a), (b), (c) and (d) of the definition of “robotic machine” in s 4 identify a number of essential characteristics of such a machine. Accordingly, in conformity with the principles articulated in Agfa-Gevaert, the language of those paragraphs should be construed in the context supplied by the robotics industry. The present application has focused attention on the phrase in paragraph (b)(i) “capable of handling objects by simultaneous movement in two or more axes”. The meaning of the individual words which comprise that phrase is clear enough. The critical question for the purpose of this application, to be answered in the context of the robotics industry, is what is it that must move simultaneously?
Two competing constructions of the phrase in question have been suggested. The one advanced on behalf of the respondent, which the Tribunal chose to adopt, involved its describing a machine having the capacity to move one object through one axis while, at the same time, moving another object through a different axis. On the other hand, the applicant contended that paragraph (b)(i) had been framed to describe only a machine capable of moving the same object through different axes at the same time.
The applicant argues in support of his contention that it is consistent with the evidence of the understanding which the phrase has been accorded by those engaged in the robotics industry. However, the respondent seeks to meet that argument by contending that there was no acceptable evidence of any common industry understanding of the phrase in question. It is therefore necessary to examine the state of the evidence before the Tribunal which might be regarded as bearing on this issue.
The principal witness relied on by the applicant was Dr Kassler who had extensive academic, industry and consulting experience in the fields of robotics and artificial intelligence. Dr Kassler testified that he understood the phrase “handling objects by simultaneous movement along two or more axes” to refer to the number of axes that a machine can control simultaneously. It was his opinion that the phrase did not refer to the number of objects that a machine controls at the same time. To illustrate this opinion, Dr Kassler provided several practical examples derived from different types of materials handling equipment which he had encountered in practice.
Dr Kassler distinguished between two types of machines: “type A” machines that can move each object on more than one axis at the same time and “type B” machines that cannot move each object on more than one axis at the same time, but can move one object on one axis while moving another object on a different axis. Only the type A machine satisfies the requirements of paragraph (b)(i) on the construction for which the applicant contends, whereas, on the construction urged by the respondent, the paragraph describes a type B machine. Dr Kassler, in a written report, expressed the final reason for his conclusion in these terms:
“3.A Type-B machine must be capable of handling more than one object simultaneously. Therefore, if the phrase ‘capable of handling objects by simultaneous movements in 2 or more axes’ were interpreted to refer to Type-B machines rather than to Type-A machines, the Act would have the effect of making machines possessing the physical structure of the vast majority of robots ineligible for bounty. On the basis of my experience in the robotics field, and on the basis of the historical evidence I have indicated, I believe that such an effect was not the intention of the Act.
Consequently, I believe therefore that the phrase in question should be interpreted as referring to Type-A machines and not to Type-B machines.”
The evidence of Dr Kassler afforded the Court a valuable insight into the robotics industry’s understanding of the expressions used in s 4(b)(i). His testimony illustrated two possible meanings of the words in s 4(b)(i) and indicated which of those meanings accorded with the trade understanding of those words. He went further to assert that, if that understanding were given to those terms, the appropriate construction of the Act would not extend the bounty to a machine that did not have the ability to handle each object on more than one axis simultaneously.
It is to be regretted that Dr Kassler expressed his opinion in terms of his belief about the intention of the framers of the Bounty Act and about how the phrase should be interpreted. That mode of expression gave some force to the criticism advanced by Mr Slonim, who appeared as Counsel for W & D Engineering, that Dr Kassler’s evidence amounted to no more than an expression of opinion as to what Parliament intended. However, I do not agree that the illustrations of a type A and a type B machine postulated by Dr Kassler were purely hypothetical.
The respondent does not allege, and there is nothing else to indicate, that this trade understanding to which Dr Kassler deposed results in the type of absurd interpretation that the Court should avoid. Indeed, his was exactly the kind of evidence of a distinction between trade usage and the connotation of words in their ordinary English meaning to which Agfa-Gevaert and Chief Executive Officer of Customs v Tasmanian Electro Metallurgical Co Pty Ltd (1997) 76 FCR 476 indicate that regard should be paid. In the latter case, Merkel J observed, at 484:
“The AAT had concluded that the words ‘minerals’, ‘beneficiation’ and ‘recovery’, as used in s 164, had no meaning which was universally understood in the relevant trade and had been so understood when the law in question was enacted: see Agfa-Gevaert v Collector of Customs (1994) 124 ALR 645 at 649 per Gummow J. Accordingly, the AAT drew on evidence as to the use of particular words in the mining and metallurgical industries to assist it in determining the ordinary meaning to be given to those words. In these circumstances, contrary to the submissions of ACS, the AAT did not err in law in having regard to the use and meaning attributed to the words in the relevant trade or industry in ascertaining the ordinary meaning of the words in the context in which they were used in s 164.”
Accordingly, because of Dr Kassler’s qualifications as an expert in the usage and meaning of terms in the context of robotics, the Tribunal should have given careful consideration to his evidence. This case provides a classic illustration of the task described above of choosing between two available meanings of a collection of words which are intelligible as a matter of ordinary English. The phrase “handling objects by simultaneous movement in two or more axes” is susceptible of two meanings, one referring to a machine capable of “handling one object in one axis while handling another object in another axis”; and the second, specialized meaning, which, according to Dr Kassler is favoured by the robotics industry, referring to a machine capable of “handling each of several objects simultaneously in two or more axes”. The Tribunal was required to make a choice between these two meanings and select that which was more consonant with the context of the Bounty Act as a whole and the intention which can thereby be imputed to the legislature.
The Tribunal, however, did not approach its task in this way. It regarded Dr Kassler’s testimony as to the industry’s understanding of the relevant terms as favouring an “interpretation that would narrow the ordinary meaning which would otherwise be given to the words used in the section”. The Tribunal viewed his evidence as illustrating a “trade usage” that would “narrow the field so as to exclude machinery which otherwise falls within the ordinary meaning arising from the use of the words set out in the nominated statutory criteria”. Accordingly, the Tribunal adopted an interpretation of s 4(b)(i) that extended it beyond what would be regarded in the industry as “robotic machines”.
The Tribunal’s reasoning demonstrates that it reached its own conclusion about the range of the Bounty Act without allowing appropriate influence to the context in which it was enacted. It is not obvious, as the Tribunal seems to suggest, that, on the ordinary meaning of the words used, the requirement of simultaneous movement along two or more axes can have only one possible connotation. Rather, I consider that two interpretations of those words are available as a matter of ordinary English and the one which the statutory context suggests should be adopted is that which Dr Kassler testified accords with the usage employed in the robotics industry. That is, the stipulation “capable of handling objects by simultaneous movement along two or more axes” requires that a machine be able to handle each object along more than one axis at the same time in order to qualify for the bounty.
The force which the statutory context gives to the industry usage is sufficient, in my view, to confer on the words used in s 4(b)(i) a meaning which is clear and unambiguous. That relieves me of the need to attempt to discern the purpose or object underlying the Bounty Act in accordance with s 15AA of the Acts Interpretation Act 1901 or to refer to extrinsic material as authorised by s 15AB of the same Act. It also renders it unnecessary to consider the argument advanced on behalf of the respondent that the Bounty Act, as a piece of beneficial legislation, has to be interpreted, where two interpretations are available, in a way which extends, rather than restricts, the range of recipients of a bounty.
However, out of deference to the arguments addressed to these issues, it is worth recording that the extrinsic material supports the construction which I prefer. The Minister’s speech on the second reading in the House of Representative of the Bill which was enacted as the Bounty Act made clear that the relevant provisions were intended to allow “high technology machines” and “more sophisticated machines” than “simple pick and place machines” to attract the bounty at the highest rate. (See Hansard, 15 November 1985, pp 2995-2996.) Similarly, the explanatory memorandum which accompanied the Bill when it was introduced in the Senate referred to the definition of “robotic machine” in cl 4 as one “which specifies the minimum characteristics of a hi-technology robot”.
The uncontroverted expert evidence of Dr Kassler was that a robot which cannot control an object on more than one axis simultaneously is considered in the industry to be a low-technology machine at “the least sophisticated end of the spectrum”. On the other hand, according to Dr Kassler, the industry regards machines which can handle an object over two or more axes simultaneously as high-technology robots. That evidence was criticised by Counsel for the respondent as being based on industry standards and attitudes that post-dated the enactment in 1985 of the Bounty Act. However, Dr Kassler drew on more than twenty-five years’ experience in the field of robotics and referred extensively to the ASTEC report, dated 31 August 1982, which recommended that the appropriate level of support by way of bounties for Australian-manufactured robots be referred to the Industries Assistance Commission (“the IAC”). The subsequent IAC report, dated 7 February 1984, led to the enactment of the Bounty Act 1985. Dr Kassler also referred in his evidence to the “classic 1980 book”, Robotics in Practice by Joseph Engelberger which drew a clear distinction between “limited sequence robots – with point-to-point control” and “playback robots – with continuous path control”. It is also significant that Dr Kassler was not cross-examined before the Tribunal to the effect that the distinction which he drew between high-technology or sophisticated robots and low-technology, pick-and-place machines was not drawn in the industry until 1985.
For these reasons, I consider that the preparatory material, when read in the light of what were revealed by the evidence to be current understandings in the industry, supports the conclusion that the Bounty Act was not framed to attract a bounty at the highest rates for type B machines capable of no more than moving each of two or more objects on a single, different, axis at the same time.
CONCLUSION
Because the Tribunal failed to give effect to the uncontroverted evidence of the trade usage of the relevant expression in s 4(b)(i), it erred in law and misconstrued that sub-paragraph. However, arriving at the correct interpretation of the words used is only a first step in the application of the statute. Whether the respondent’s machinery falls within the statutory definition of s 4(b)(i), as properly construed, is a question of fact; that is, it is a question of fact whether the palletisers and depalletisers are capable of moving each object along at least two axes simultaneously. That factual question is entrusted by the relevant legislation to the Tribunal and is not usually apt for resolution by this Court on an application under s 44 of the AAT Act.
In this case, however, I need not refer the matter to the Tribunal to make a finding of fact whether, construed as I have indicated, the Bounty Act applies to the respondent’s machines. Such a referral is unnecessary because the factual issue has already been resolved by the Tribunal proceedings. As I understand the record, the Tribunal and parties apparently agree that the respondent’s machines are not capable of moving each object along two different axes at the same time. Therefore, on the interpretation of the definition which I have held should have been adopted, the respondent’s palletisers and depalletisers are not “robotic machines” as defined by the Bounty Act. Accordingly, the present case can be assimilated to Commissioner of Taxation v Emmakell Pty Ltd [1990] 22 FCR 157 where a Full Court of this Court adopting the approach earlier taken by another Full Court in Statham v Commissioner of Taxation (Cth) (1988) 89 ATC 4070, said, at 166:
“We conclude that this, like Statham, is a case where the facts necessary to enable a decision to be made have been found, so that the Court’s ruling upon the question of law involved enables the whole matter to be disposed of.”
Because I have determined that the respondent’s machines do not answer the description in s 4(b)(i) of the Act, and because the requirements of s 4 are cumulative, it is unnecessary to consider whether the Tribunal erred in law in finding that the palletisers and depalletisers satisfied the requirements of s 4(d).
I shall therefore order that the application be granted and the decision of the Tribunal be set aside. In lieu of that decision I shall order that the decision of the delegate of the applicant, the subject of the application to the Tribunal, be affirmed and that it be declared that the respondent’s palletisers and depalletisers are not “robotic machines” as defined in s 4 of the Bounty Act. The respondent must pay the applicant’s costs of the application.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate:
Dated: 19 April 1999
Counsel for the Applicant: Mr J Lenczner Solicitors for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr J Slonim Solicitors for the Respondent: Slonims Date of Hearing: 19 August 1998 Date of Judgment: 19 April 1999
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