Collector of Customs v AGFA-Gevaert Ltd
[1995] HCATrans 325
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M32 of 1995
B e t w e e n -
COLLECTOR OF CUSTOMS
Appellant
and
AGFA-GEVAERT LIMITED
Respondent
BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 14 NOVEMBER 1995, AT 10.16 AM
Copyright in the High Court of Australia
MR P. BUCHANAN, QC: If the Court pleases, I appear with MR J. LENCZNER for the appellant. (instructed by the Australian Government Solicitor)
MR J.M. EMMERSON, QC: If the Court pleases, I appear with my learned friend, MR J.B.R. BEACH, for the respondent. (instructed by Russell Kennedy)
BRENNAN CJ: Mr Buchanan?
MR BUCHANAN: Can I hand to the Court copies of our outline of argument.
BRENNAN CJ: Yes, Mr Buchanan.
MR BUCHANAN: Your Honours, in order to obtain the exemption from duty which the commercial tariff concession orders provided, it was necessary for the respondent’s photographic paper to satisfy two elements which were in dispute. The first was that it met the description “silver dye bleach reversal process” and the second was that it had the image dyes incorporated in the emulsion layers coated on the resin coated paper goods.
Both the tribunal and the Full Court dealt with those two issues separately. The respondent’s paper, the Agfa paper is opaque paper on which, at the end of the process of development, appears an image which is received from colour negative film and on the Agfa paper there are three emulsion layers which are coated on the paper and the developing process which is applied to those layers on the paper involves the application of chemicals and it involves light: light going through the negative film to the opaque paper of the respondent.
In each of the three emulsion layers which are coated on the paper there is what is called a colour coupler which reacts with chemicals which are introduced in the developer to deposit in the layer a dye in each layer and the dyes are cyan, magenta and yellow which correspond, or rather, when exposed to light, produce the primary colours red, green and blue. In this respect, the Agfa paper of the respondent differs from the other photographic paper, notably Ilfochrome, where, in the latter case, in the course of manufacture, the colour ‑ we would say dye ‑ is actually introduced into the emulsion layers and is present there.
So that, if you scratch untreated, undeveloped Ilfochrome paper, what is disclosed beneath the film that is on the surface is a colour you can see with the naked eye. Whereas, in the case of the Agfa paper, scratching it leads to nothing in the sense that the colour couplers are themselves invisible and there will not be any colour in the emulsion layers until they are first treated in the developer. Your Honours will see in the appeal book at page 620 in paragraphs 18 and 21 in the evidence of Mr Spring, a description of the elements which are described. In paragraph 18 on page 620 he says:
I have scratched the emulsion layers of the paper that is Annexure H.
That is Ilfochrome paper.
The reader of this declaration will observe that one can see actual layers of dye that are coloured cyan, magenta and yellow. These are the dyes that will make the final colour image as it seen by the consumer on the photographic print after processing.
And then in paragraph 21 he says:
I now scratch the emulsion layer of the papers that form -
other annexures, which are the Agfa papers.
Compared to Annexure H, no such coloured image dye can be seen. This is because the image dyes have not yet been formed. Each of the three papers are classified as “negative-positive” color papers.
As distinct from “positive-positive” colour papers. And to the like effect is a description of another witness, Sakomoto, at pages 472 to 473.
Your Honours, the evidence that was before the tribunal established that there was a recognised meaning which is given by the trade, that is those concerned with photographic materials and their commercial use, to the phrase “silver dye bleach process”, omitting the word “reversal” from the phrase and commas that appears in the commercial tariff concession order. It was recognised by the witnesses as a method of developing photographic prints which was used in respect of Ilfochrome paper but not in respect of Agfa paper.
For example, Professor Spring, as many of the other witnesses did, said at page 619 in paragraphs 5 to 7, paragraph 9:
“Silver-dye-bleach”, as a term by itself describes a silver based photographic process where image dyes are incorporated in the emulsion and a dye destruction occurs in the developing process yielding a colour print directly from a transparency.
And your Honours will see in the course of the appeal books that the Ilfochrome paper is often described by witnesses as being exemplifying a dye destruction process, which is regarded by them as being distinct from the process that applies to Agfa paper.
Although the trade, as it were, recognised a settled meaning of that phrase, it did not recognise that the complete phrase, “silver dye bleach reversal process” ‑ adding the word “reversal” ‑ had a particular meaning.
TOOHEY J: It is really adding the word “process” as well, is it not? I was going to ask you; is the word “bleach” in “silver dye bleach” just used as a noun or a verb?
MR BUCHANAN: The evidence, your Honour, I think, establishes that the trade seem to regard those words “silver dye bleach” as being a description of a process and accordingly what they did was, as Professor Spring did, read the phrase by omitting the word “reversal”, so it became “silver dye bleach process”.
TOOHEY J: But that paragraph suggests ‑ and it may not matter in the end ‑ that the expression “silver dye bleach” is itself descriptive of a process.
MR BUCHANAN: Yes, but I think it is fair to say, your Honour, that the trade witnesses regarded it as describing a process, and not as separate adjectives describing an object.
TOOHEY J: Yes, thank you.
BRENNAN CJ: Why are we looking at the evidence as distinct from the findings made by the tribunal?
MR BUCHANAN: Only, your Honour, to explain them and I do not propose to go any deeper into it.
BRENNAN CJ: Are there findings by the tribunal which accord with the evidence to which you have just drawn our attention?
MR BUCHANAN: Yes, there is, your Honour.
BRENNAN CJ: Should we not see that?
MR BUCHANAN: Yes. I take the Court to the fourth volume of the appeal book, the reasons of his Honour Mr Justice Jenkinson, who constituted the tribunal, again at page 788, and at page 796, at the top of the page his Honour considered the whole of the evidence including, I suppose ‑ I would hope ‑ that to which I have taken the Court, and said:
On the whole of the evidence, relating to the expression “silver dye bleach reversal process” I am inclined to think that the words “silver dye bleach” should be given the meaning which usage indicates and that the word “reversal” is to be understood as meaning that reversal of image which occurs in the process of producing a positive print on paper from a positive film.
Now the second part of that sentence relates to the way in which his Honour used the evidence which was given of the effect of introducing the word “reversal” into the phrase. Some of the witnesses said that a reversal process, considering that by itself, was apt to describe the reversal that takes place in producing an image from the positive film which occurs in developing Ilfochrome paper, because the first step in the process by which that transition from the print to the paper occurs involved the generation of a negative image, which is then reversed, and those witnesses included Professor Spring, Mr Sakomoto and Mr Forbes, and their evidence is found at pages 619, 474 and 729. They understood the words “reversal process” to mean that reversal which occurs inevitably, and can only occur in producing a positive print from a positive film.
On the other hand there were other witnesses, for example, Mr Rudolph, whose evidence on this matter appears at pages 245 to 246, who said that the words “reversal process” connoted a process involving a reversal of images and that was not, they thought, apt to describe the process applied to Ilfochrome paper. Rather they thought that it was one which more properly applied to the Agfa paper. Now as the Court has seen, the tribunal held that the whole phrase was effectively to be construed in two parts. His Honour took the trade, the settled trade meaning of the words “silver dye bleach process” and the ordinary meaning, that is one of the meanings which some of the trade thought appropriate to the words “reversal process”, to finish up with a construction of the whole.
Your Honours, it was at this point that once the tribunal used that settled trade meaning of the words “silver dye bleach process”, the respondent had to fail, and it was this step in the reasoning of the tribunal which the Full Court held to be in error. Each member of the court said that it was an error of law to construe part of a composite phrase according to a technical meaning and part of a phrase according the ordinary meaning of the words used. If I can take the Court to, first of all, the reasons for judgment of Justice Ryan at page 817. At line 30, his Honour said:
It is impermissible, as a matter of law, I consider, to adopt a differential interpretation of a composite phrase by isolating part of the phrase and according to it the technical or customary meaning which that part, standing, alone, can be found, on the evidence, to bear and then construing the balance of the phrase according to the ordinary English meaning of the word or words comprising it.
Justice Gummow at page 832, beginning at the top of the page, said:
It was, in my view, an error of law to construe the phrase “silver dye bleach reversal process” by reference to an accepted trade usage found as to what was seen as one component of the expression, and as to the balance by reference to the understanding of it by some but not all of the trade witnesses.
And, finally, at page 859, Justice French said at line 4 on that page:
In my respectful opinion it is not open to construe the composite term by reference to the trade usage of part of it. The evidence was overwhelming that there was no such usage for the whole. It therefore falls to be construed according to the ordinary meaning of the words used. What that ordinary meaning is, is a question of fact.
And, accordingly, it was for that last reason that the court did not themselves substitute their own holding as to what the word meant but sent it back to the tribunal to find as a matter of fact what the ordinary meaning of the words was.
BRENNAN CJ: What is meant by “ordinary meaning” in the context of a technical frame of discourse such as this?
MR BUCHANAN: That, of course, is the real problem with which the court, in effect, confronted the tribunal to find, construing those words as a whole, as one concept, that in ordinary parlance, they do bear a discernible definite meaning. As your Honours will see, one of the witnesses, at least, said that that phrase ‑ that is, the whole phrase with the word “reversal” in it ‑ was one which he had never encountered in all his years in the industry and it is just not used. And no other witness, I think, said that it was, it did not have a trade meaning. And he went further and said, “I’ve never heard anybody say it, or describe it”.
TOOHEY J: I was going to ask you, Dr Buchanan, what is meant by a “composite” phrase in this sense? Do you accept that description of it?
MR BUCHANAN: No, we do not. I think what is meant by it, your Honour, is that there are a number of words all depending upon the same word process and are necessarily parts of the description of the process. So that it is one process to be read as a phrase having an overall meaning and it is impermissible either to look at individual words separately by themselves, so that you say, “Has it got silver? Has it got bleach?” You do not do that, nor can you, according to the Full Court, divide it into two and use a settled trade meaning for part and an ordinary meaning for another part.
We would say, your Honours, that, first of all, there is no such settled and inflexible rule of construction as the Full Court promulgated but, but it is permissible, where the context demands it, to treat a composite phrase as made up of separate parts but the same result is to be reached by regarding it, not as a composite phrase at all but as a very clumsily expressed jumble, I think is probably the word, or mixture or putting together of two phrases.
The draftsman put a comma at one end and a comma at the other but as is, I must say, often found with legislative instruments that come forward in this way, the rules of syntax are not always scrupulously observed. As your Honours will know, although these orders are characterised as having a legislative quality they are not, for all sorts of reasons, necessarily equated with a statute drawn by a parliamentary draftsman.
They come forward drawn by Customs agents acting on the instructions of their clients who are generally members of the trade which deals in the goods in question and the applicants are required by the legislation to describe the particular goods for which the application is made, for which an order is sought, and the Customs Department does not treat itself as being really part of the drafting process but either rejects or accepts the application as it is put forward and does not descend into the field of drafting itself and add its own words so that the words effectively, the draftsmen or women, are those who are engaged in the business of acting as Customs agents for those who import and deal with the particular goods in question.
BRENNAN CJ: Are there any authorities dealing with the construction of instruments of this kind as there are in relation, for example, to awards?
MR BUCHANAN: No, I think there are not. The construction of tariff concession orders does come before the courts on occasions.
BRENNAN CJ: I was not thinking so much of tariff concession orders by themselves but instruments which are designed to achieve a particular advantage for those who promote them.
MR BUCHANAN: No, your Honour. We cannot point to any such cases. I know of none. Of course, it is not a complete description, with respect, of the way in which these instruments come forward in the overall system in which they are a part to say that they are designed to achieve a particular purpose. That is true of the applicant. All he is interested in is his goods but they do have, and the system gives to them, a much wider effect than that because they will hence forward and until revoked, if they ever are, will act as a rule so that anybody who can bring his goods within the description contained in the tariff concession order can do so and will achieve the benefit of that which is generally the reduction of duty to nothing and in some cases, 2 per cent.
So that it is recognised by the system itself that although the motives of the applicant are selfish, nevertheless, it will have and can have a very wide effect. It may not. It may be limited to goods which only the applicant will ever import into the country but, in most cases, that is not so and it will always have the potential to apply to goods which are not quite the same, although having the same characteristics that bring it within the description, as the goods of the original applicant.
In the passages to which I have taken the Court where it was characterised as an error of law to so treat the composite phrase, their Honours were not saying that, in this particular case, the words of the phrase were to be given their ordinary meaning and not to do so was an error of law because the question whether words in a statute are to be given their ordinary or a special trade meaning is a question of law. Rather, their Honours were saying that it is always an error of law to construe a phrase once characterised as a composite phrase in the way they did in that manner, that is, to break it up into component parts.
We would say that is so because their Honours were not choosing between an ordinary meaning of the phrase as being more appropriate than the particular meanings identified by the tribunal, because the court itself did not say what they understood, in its ordinary meaning, the words “to have”. It does become, seen in that way, because their Honours were not choosing between particular types of meanings as answering the needs of this particular case, but rather laying down a rule and following it. No authority was cited for such an inflexible approach and we know of none.
I think it is fair to say that while, in general, the witnesses who were from the trade who were called to give evidence as to what the trade understood by these terms, while they said in general that there was nothing which they knew of that answered the description of the complete phrase, and it was not one used in general parlance, or at least used in the trade, one of them, a Mr Battye, at page 179, suggested that the phrase might mean “a bleach reversal of the silver dye as part of the process of development”.
So what he did was he used the word “reversal”. He took it out of its place and he put it next to “bleach” and talked about “a bleach reversal” of two of the other words, “silver dye”. So he, himself, fiddled about with it in order to reach what he thought was a sensible or at least a comprehensible meaning. It is, indeed, we would say, without resort to such adventurous structuring as that, to say what the ordinary meaning of this phrase, taken as a whole, was.
If one is deprived of the assistance which is given by a recognised trade meaning that the words “silver dye bleach process” give, then the ordinary meaning of the entire phrase, with the addition of the word “reversal”, is a mystery, for there is, we would say, no concept in ordinary parlance which the phrase describes. I did say that there was one witness who said, not only is it not a trade term but that he had never heard it used by anybody in his experience. That was the witness Thompson, who said that at page 184 of the appeal book. And if the whole phrase is never used by those whose professional lives are concerned with photography and photographic materials, including paper, it is difficult to see how an ordinary meaning intended by the draftsman is to be discerned. That is an ordinary meaning which, deprived of the assistance which those in the trade can give, can be seen.
Justice Jenkinson, constituting the tribunal, accepted the evidence of the only witnesses who thought the phrase did have a sensible meaning and they achieved that, and his Honour adopted it by construing part according to a settled trade meaning, and part according to the normal meaning of the words used.
TOOHEY J: What do you understand is the effect of the Full Court’s judgment when the matter goes back to the tribunal. The reference to the ordinary meaning of the words used suggests, perhaps, that the tribunal simply takes each word in the expression and gives it a meaning, or does it preclude the tribunal from treating the expression as a composite one, but giving it a meaning which is reached by somehow applying the meaning of the words that go to make up the expression?
MR BUCHANAN: I think the latter, your Honour. I do recall ‑ and I will give your Honour the reference to it when my junior finds it ‑ in the reasons for judgment of Mr Justice Gummow, he did say that the phrase was to be construed as a whole. He did not look at each particular word as if it were yet another qualification.
TOOHEY J: I was prompted to ask you that question because of the passage ‑ I think it might be in the judgment of Justice French that you took us to in page 859, where his Honour said:
It therefore falls to be construed according to the ordinary meaning of the words used.
MR BUCHANAN: Yes. That is without regard to the special meaning which trade witnesses give because they understood part of the words to mean the dye destruction process of development.
TOOHEY J: Yes. I understand that but it just was not clear to me whether his Honour was saying, “Well, you look at the expression and you do the best you can with the meaning of each word as it appears in the expression, and somehow at the other end you arrive at ‑ ‑ ‑
MR BUCHANAN: Yes.
TOOHEY J: Well, you do not have to arrive at a composite expression, you just have to answer the question: do the goods fall within that description or not?
MR BUCHANAN: Yes, but as words describing a single concept. The passage I had in mind in the reasons for judgment of Mr Justice Gummow is to be found at page 832 and the passage to which I would take the Court begins at line 18. In the paragraph above that his Honour had identified what he said was the error in dividing the expression into the two parts, and then he said:
Rather, it was necessary to construe the phrase as a whole.
And neither his Honour nor the other members of the court appeared to contemplate in terms that you were to treat each word as if it were separated by a comma. Rather it was, indeed, a composite phrase and it was to be construed as a whole and you were to seek, in the ordinary meaning of each of the words used, some clue to a process which was identifiable.
TOOHEY J: So you would sit down with a dictionary, would you?
MR BUCHANAN: Well you would sit down with a dictionary. You could also use, I would have thought, the evidence as to how photography works, if you did not know, that is, not evidence of what meanings are given to words by the trade, but rather what in fact occurs in the process of development of different types of paper and, using your dictionary, see if you could come up with an overall description or, rather, a fixing of a concept which embraced particular types of paper.
DAWSON J: But, really, what you are suggesting is those words do have an ordinary meaning, each one of them, but that is of no help.
MR BUCHANAN: Yes, that is right, your Honour.
DAWSON J: What you have to do is then take the composite phrase, or at least the composite phrase “silver dye bleach process”, and that has a trade meaning, and that is subject to evidence.
MR BUCHANAN: Yes, your Honour.
McHUGH J: The whole problem in this case seems to me to arise out of the fact that it seems to be regarded as that there are two exclusive categories, ordinary meaning and trade meaning, or ordinary meaning and special meaning, but the real question here is what do these words mean? And talking about trade meaning or ordinary meaning are just some sort of a guide; they are not fixed rules. You have got to try and say, whether one looks at it from a speaker’s point of view or from a reader’s point of view or the hearer’s point of view, it may be a separate question, but ultimately is the question, what does it mean?
MR BUCHANAN: Yes, your Honour.
DAWSON J: Except in the text here where it is a question of the jurisdiction of the tribunal and of the Appeal Court. You have to draw a line, do you not?
MR BUCHANAN: Yes you do.
DAWSON J: Artificial or not.
MR BUCHANAN: If the line your Honour’s thinking is between questions of matters of fact and matters of law, we do not say that that is a line which really gives one an answer in respect of this issue, although it does in respect of the second. That is the question of image dyes. There the line was, we would say, transgressed or stepped over by the court.
TOOHEY J: You might say, for instance, having heard the evidence that it is apparent that this particular process does not involve a reversal as that term is ordinarily understood, and that might be enough, if you took that view, to say, “Well, it doesn’t fall within the description.”
MR BUCHANAN: Yes, that might well be so.
TOOHEY J: I only offer that by way of illustration of a way in which relying upon the evidence, and without necessarily giving meaning to every component of the expression, the tribunal might conclude there is simply no reversal involved here.
MR BUCHANAN: Yes, although the Full Court would say you cannot do that just looking at the word “reversal” by itself. You have to look at it with such light as is thrown on it by the words preceding it.
TOOHEY J: That is true, but it may be that the tribunal - and I am not saying in this particular case, but in such a case the tribunal might say on any view of the evidence and on any understanding of the word “reversal”, there is no reversal or no reversal process involved here.
MR BUCHANAN: Yes, although that would be difficult here because there was evidence - - -
TOOHEY J: That is why I qualified what I said by saying, “Not in this particular case”.
MR BUCHANAN: That is true, your Honour, yes.
DAWSON J: Would you be allowed to say, “Well, look, we know what silver-dye-bleach process is, and we can give a meaning to that as a composite phrase. The word ‘reversal’ seems to have been inserted by mistake. We’ll disregard it”?
MR BUCHANAN: I think the Full Court would not let you do that.
McHUGH J: You can do it in respect of the statute. Why cannot you do it in respect of the - - -
MR BUCHANAN: Well, we would say you can, and I think it comes back to what I was saying about whether it is truly a composite phrase or not. We take it that when their Honours said it was a composite phrase it meant that everything in it bounded by the limitations imposed by the two commas, one had to have regard to all of it, and you are not allowed to pluck out words saying they should not be there, and it is an obvious mistake regarded when the whole thing is put in its proper context.
We would say that the courts are not so bound, particularly when one looks at and when one is dealing with commercial tariff concession orders drawn as these ones are, without the help of a parliamentary draftsman who, by and large, adheres to the strict rules of grammar and syntax. We would say your Honour is quite right in pointing to the absence in this field of more than general guidelines. After all, the range of contexts in which particular words are going to be used is almost infinite and we would say that courts and tribunals should not be shackled by rules which applied seemingly as rigidly as this to exclude evidence which is helpful.
Indeed, hitherto, when the courts have expressed themselves in terms of using material ‑ be it from dictionaries or be it from those engaged in a particular trade ‑ they have expressed themselves in terms which allow you to use the whole of the field to find what is helpful and not make rigid distinctions between trade meanings; it is either wholly a trade meaning or it is either wholly an ordinary meaning. The rules have hitherto not been expressed in that way.
TOOHEY J: Would you have any quarrel with the Full Court’s approach that the phrase must be construed as a whole so long as, in construing it, the tribunal could resort either to trade usage or to ordinary meaning as appropriate?
MR BUCHANAN: Yes, we would, because that would give one, we would say, effectively the sensible result.
TOOHEY J: Perhaps I misunderstood your answer: I said, would you have any objection?
MR BUCHANAN: No, none at all, your Honour.
TOOHEY J: I thought you said you would.
MR BUCHANAN: Did I? I am sorry, I did not mean to.
BRENNAN CJ: Mr Buchanan, the essential that you make is that the tribunal approached it in the way in which they did and that there was no error of law in that.
MR BUCHANAN: No, there was not.
BRENNAN CJ: And if there is no error of law, there is no right of appeal.
MR BUCHANAN: That is true, unless it is an error of law to break up a composite phrase.
BRENNAN CJ: Unless the method adopted in construing the phrase by the tribunal reveals an error of law.
MR BUCHANAN: Yes, and it would, I suppose ‑ ‑ ‑
BRENNAN CJ: And then your proposition is that it is not an error of law to have done what they did and that it was an error of law to have insisted on the method of construction so far as the method was defined by the Full Court.
MR BUCHANAN: Yes, your Honour.
GAUDRON J: Is it a question of law whether or not it is a composite phrase?
MR BUCHANAN: Yes, I think it probably is in the end, your Honour, because one’s approach to it is not just a question of finding the meaning of words, it is a question of the way in which you go about it and I would have thought that while the meaning of words is a question of fact, but the syntactical approach one takes to an expression found in a statute is rather, I would have thought, a matter of law which does not depend on the evidence and does not depend on the facts.
DAWSON J: Construction rather than ‑ ‑ ‑
MR BUCHANAN: Yes, construction rather than meaning: applying a settled meaning found as a fact to other facts.
BRENNAN CJ: Could I just take that a little further because I do not think I have grasped it quite. If in this phase here we had a phrase which was familiar in the trade, let us say leaving out the word “reversal”, then one would understand from the trade evidence that that phrase was to be construed as an entirety.
MR BUCHANAN: Yes, your Honour.
BRENNAN CJ: Does not one then depend on the trade evidence in looking to see whether it should be construed as an entirety once you introduce the word “reversal”?
MR BUCHANAN: Yes, one does, coupled with, I think, the realisation that there is no meaning which, in ordinary parlance, leaps to one’s mind.
BRENNAN CJ: I appreciate that, but what I am endeavouring to come back to is Justice Gaudron’s question to you and your answer to her Honour. What is it, when you are dealing with a technical set of words, that allows you as a matter of law, removed from the evidence, to say whether or not a phrase is to be interpreted as an entirety or not?
MR BUCHANAN: Because, and I think the answer does not suit me very much but, because it is a matter that goes to the construction of the phrase or sentence concerned and how the meaning of the words is to be approached, that is, what you do when you do the fact finding part which is ascertain the meaning of the words. I have difficulty with the distinction between “construction” which is a matter of law and “the meaning of words” which is a matter of fact, but I would limit “the meaning of words” and this factual context to what it is that the words mean, that is, what they are equivalent to, their definition if one likes, without looking to see how the interplay of words themselves is to be approached having regard to their grammatical place in a sentence or a phrase.
DAWSON J: It will always ultimately be a question of construction and, therefore, a question of law, will it not? When we take a section of the statute, you can go through and say what the individual words mean, but when you finally say what the section means, that is law.
MR BUCHANAN: Yes. It may be that there is not much discretion left because the meaning of the individual words will dictate the result so that the question of construction is not really a great step in itself, but it will always be there, your Honour, yes.
DAWSON J: But always the ultimate conclusion ‑ ‑ ‑
MR BUCHANAN: Ultimately, there would always be one, yes. Can I just refer the Court briefly to two decisions. The first is the Collector of Customs v Bell Basic Industries 20 FCR 146, at page 157, and it is really for the helpful list of propositions extracted from the cases, and we would, with respect, submit accurately, dealing with one’s approach to the choice of trade or ordinary meaning of words, and the rules themselves or guidelines are not framed in terms which exclude help where it is to be found. The first of the rules is set out about a third of the way down the page:
With respect to revenue laws directed to commerce, courts are more ready to conclude that items have been described according to common commercial or trade usage rather than in their natural or ordinary sense -
citing a number of authorities including that of Justice Mason in Henderson. I can skip over (ii) and go to (iv):
But how the trade describes goods is not conclusive. Trade evidence may limit the meaning of an expression to the denotation which it has at a particular time without making allowance for its capacity to extend to new exemplifications which have the characteristics of accepted denotations:
Henderson’s Case again. There are other rules, and can I go to the last on the next page, (viii):
If there is a common, commercial or specialised meaning of the particular item established by evidence, it is necessary to determine whether the legislation has used the word in its ordinary signification or in the special sense.
But none of the rules are expressed in terms which do not permit of an appropriate choice to be made where the circumstances require it. That was also made clear by the House of Lords in Maunsell v Olins (1975) AC 393 in a well-known passage at 391. In the fourth line on that page, Lord Simon said:
It is sometimes put that, in statutes dealing with ordinary people in their everyday lives, the language is presumed to be used in its primary ordinary sense, unless this stultifies the purpose of the statute, or otherwise produces some injustice, absurdity, anomaly or contradiction, in which case some secondary ordinary sense may be preferred, so as to obviate the injustice, absurdity, anomaly or contradiction, or fulfil the purpose of the statute: while, in statutes dealing with technical matters, words which are capable of both bearing an ordinary meaning and being terms of art in the technical matter of the legislation will presumptively bear their primary meaning as such terms of art (or, if they must necessarily be modified, some secondary meaning as terms of art).
Then, if I can go down to His Lordship referred to Whitley v Stumbles and Bracey v Read, and then said:
But, in fact, these two statutory situations ‑ dealing with ordinary people in their everyday lives, on the one hand, and dealing with technical branches of the law, on the other ‑ are only two extreme situations. Statutory language, like all language, is capable of an almost infinite gradation of “register” ‑ i.e., it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc.). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.
That is not, we would say, an approach which means that one, as a matter of law, cannot resort to a helpful meaning ‑ a helpful trade meaning in this care ‑ which assists one to understand what otherwise appears on its face to be incomprehensible.
McHUGH J: Is not the law on the construction of industrial awards and agreements perhaps a better guide to the meaning of an instrument such as is involved in this case, than cases concerning with statutes? One is trying to understand what the people who drafted the award would have intended by it.
MR BUCHANAN: Yes, your Honour, with respect that is so, and one can go perhaps even a bit further and say that the way in which the courts approach the construction of written contracts is ‑ ‑ ‑
McHUGH J: Yes, or a will.
MR BUCHANAN: Or a will, where, as here, the draftsman is a lay person struggling to enunciate what is in his mind, and the more limited and restrictive rules there are in dealing with people who do not always follow precisely all the rules of grammar and syntax, is hardly helpful.
Can I go, your Honours, to the second question, as a second issue. The question of whether the image dyes in the case of the respondent’s paper were incorporated in the emulsion layers coated on the goods. One of the ordinary meanings of the word “dye” is colour or hue. Another ordinary meaning of the word “dye” is a material used for dyeing.At page 833 in his reasons for judgment, Justice Gummow set out those two meanings, among others, which appear in the Oxford English Dictionary; the first of them was:
colour or hue produced by, or as by, dyeing; tinge, hue,
And then he said:
Another is concerned not with that which is produced by the activity of dyeing, but with that which brings about the result. This meaning is:
“a material or matter used for dyeing; esp colouring matter in solution.”
The tribunal, Mr Justice Jenkinson, found that the ordinary meaning of the word “here” that was applicable was that of colour and not something which was a step‑in or a help to produce colour and the tribunal also found that there was a usage in the trade of the term “image dyes” which meant a reference to the colour itself and not the material used to produce it.
Can I take the Court to page 805 in the appeal book and to line 25. His Honour said:
It is true that the formation of the colour which the eye sees on the developed paper is “achieved by a combination of differing hue (colour), chroma (intensity), saturation (density) and arrangement of the dyes relative to each other”. But it is, as I find, also true that there is a usage among those concerned with the technology of colour photography to refer to those substances which on the surface of the developed paper, having been combined (in the sense of that word in the passage quoted), enable the human eye to see colours.
And then, if I can go down to line 5 on page 806, his Honour said further:
But if I were wrong in finding that usage, I would yet conclude that the meaning I have wrongly thought that usage supplies is supplied by the context.
The members of the Full Court, on the contrary, held that the ordinary meaning of the word “dye” in this commercial tariff concession order was material which contributed to the formation of colour and not the colour itself. So, the fact that you could scratch the Agfa paper and not find any colour, because it was not there and had yet to be formed because a chemical reaction had to take place, did not prevent it from being the goods to which the order applied.
TOOHEY J: But, if the ordinary meaning embraces both, on what footing did the Full Court say that the tribunal was wrong in its choice of meaning?
MR BUCHANAN: There was only one member of the court who advanced a reason. Mr Justice Ryan who merely said that at page 818, did not in fact say why he chose in this case one of the ordinary meanings, but Mr Justice Gummow, at page 837 did. It is the last paragraph on that page. At line 23 his Honour said:
As I have already indicated, in my view, the meaning sought to be given by Agfa is within the ordinary meaning or import of “dye”, and its conjunction with “image” whilst inelegant is not inapt. Taken as a whole, the terms of the T.C.O.’s are indicative of the processes by which the paper is to be developed, and the “image dyes” are identified or limited by reference to their incorporation in the emulsion layers which are coated upon the resin coated paper. The Agfa Paper answers that description.
So his Honour was saying, this is a description in terms of process, accordingly it is appropriate and correct in this context to see a material in a process that produces something as answering the description of the word “dye”.
TOOHEY J: Do you mean because of the expression “incorporated”? Is that what points up the possibility of a process rather than merely a colour?
MR BUCHANAN: I think his Honour was rather pointing to the order as a whole. His Honour said so:
Taken as a whole, the terms of the T.C.O.’s are indicative of the processes -
So I think his Honour looked at the whole expression rather than use one word such as “incorporated” for the purpose of arriving at that result.
TOOHEY J: Did the word “image” play any part in this? It is referred to, but I am not clear either in the reasoning of the tribunal or the reasoning of the Full Court what role it did play.
MR BUCHANAN: Well, I think it is ‑ ‑ ‑
TOOHEY J: Could I just interrupt you before you answer. I take it there was no evidence that image dye itself was a technical ‑ ‑ ‑
MR BUCHANAN: Yes, there was, and what his Honour did was find that notwithstanding there was no unanimity among the witnesses, nevertheless he found as a trade usage that the expression “image dyes” was one which was appropriate to connote the Ilfochrome Paper or other paper where the dye is in the emulsion layer, that is the colour is in the emulsion layer, rather than one that contains a chemical combined with others that will ultimately produce colour.
TOOHEY J: Well, then why speak of the ordinary meaning of the word “dye” if in the end the conclusion is that there is a trade usage attaching to the meaning “image dye”?
MR BUCHANAN: His Honour was making sure, or seeking to make sure, by tackling the matter from saying that, “If I’m wrong in finding that there is a trade usage” - because his Honour had effectively to choose between the witnesses. It was one of those cases - -
TOOHEY J: I am sorry. I am in the realm of the Full Court at the moment. Are you?
MR BUCHANAN: Yes, I hope so.
TOOHEY J: When you spoke of choosing between the witnesses, I thought you might have been taking us back to the tribunal.
MR BUCHANAN: No. Either will do and, in effect, what the Full Court had to do was find that no, the tribunal was wrong in finding a trade meaning or usage of the expression “image dyes” because the trade usage or meaning found by the tribunal was one which excluded Agfa paper, and then the Full Court had to deal with his Honour’s alternative basis, that is the tribunal’s alternative basis, of finding that in the ordinary meaning of the words “image dyes” the Agfa paper was not included, was not covered. We would say that in doing both of those things, that is, in effect, differing from the tribunal as to whether there was a trade usage and differing from the tribunal as to what the meaning of the word was, the court did cross over that line which it ought not to have crossed, the line established by section 44 of the Administrative Appeals Tribunal Act.
I said to the Court that although Mr Justice Ryan did not advance a reason for choosing one of the possible ordinary meanings, Justice Gummow did, and he did so on the basis that because the order as a whole is concerned with a process, you adopt that meaning which is more appropriate to a process. We would first of all say that is not the appropriate way to look at this commercial tariff concession order.
It really is - and I do not breach any rule of construction in propounding this - at least a description of a process in so far as the first issue is concerned, but then it describes - and we would say clearly enough - properties of physical goods. There is no inherent inconsistency or difficulty created by a commercial tariff concession order describing goods which is in part a description of the process which goods undergo and the part they play in an industry and in part a description of the physical properties of the goods themselves. It is not necessary to choose, as Justice Gummow did, characterising the whole as a process or the whole as something else. It was indeed, and could be logically and sensibly, two things.
Mr Justice French at page 861 approached the matter slightly differently. He said at line 13:
In my respectful opinion, the phrase “image dyes incorporated in the emulsion layers” ought to have been construed according to its ordinary meaning. The evidence of usage was not of a technical or special kind but rather argument about the correct application of the words used in their ordinary sense. His Honour’s choice of a propounded trade usage to construe the phrase was therefore wrong in law. There is nothing in the context in which the words are set to suggest a limitation or extension of their ordinary meaning. And although that ordinary meaning is a question of fact, it accommodates the colour couplers in emulsion layers in the Agfa papers.
Now, we would say clearly enough what is the ordinary meaning of a word is a question of fact which is for the tribunal and not for a court reviewing the tribunal’s decision under section 44 and the cases dealing with that matter are conveniently collected in the judgment of the Full Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280, at page 287. I do not intend to take the Court to the passage itself, it stands for that simple proposition. It is also the case and it is set out in the same passage the same rule that applies to the question of fact of determining what is the trade meaning of a word. The tribunal found that there was a trade meaning.
TOOHEY J: Trade meaning for what?
MR BUCHANAN: The words “image dyes” or, rather, to be accurate, “the image dyes”. That phase, according to his Honour, amongst those versed in the trade, connoted the colour present in the emulsion layers of the paper of the type Ilfochrome and perhaps others.
TOOHEY J: Could I just interrupt you there? There seem to be two steps involved. The first is whether that expression, “image dyes” has a trade usage. If it did, was it incumbent upon the tribunal to accept that?
MR BUCHANAN: No. First of all, the tribunal had to find that there was a trade usage which, in this case, involved making a decision between competing pieces of evidence, because not all the witnesses were unanimous, unlike their approach to the silver dye bleach process, in saying that these words had a settled meaning in the trade. Some witnesses did, and his Honour clearly enough preferred them, that is, preferred their evidence that it was a settled trade meaning that image dyes require the colour to be in the emulsion layers.
TOOHEY J: That is the second step as to what it meant, but my question was initially directed at really the first step in deciding whether there was a trade usage or not. You say that was really a matter for the tribunal.
MR BUCHANAN: Yes, we do. The evidence on which the tribunal could have relied is found in the evidence of a number of witnesses. Can I just give the Court a reference to the evidence of Professor Spring at page 621 in paragraph 26 of his statement, and in the course of his cross‑examination at page 699 at lines 26 to 31. That was, we would say, not as Justice French characterised it, an argumentation dissertation on the meaning of words, but rather a factual account of the meaning which those in the trade gives to these particular words.
TOOHEY J: I do not want to interrupt you, but I take it you will point to the passage in the tribunal’s decision in which the acceptance of one witness over another is referred to.
MR BUCHANAN: Yes, your Honour. I have already read it but in another context. It is the sentence at page 805. It is found at line 29:
But it is, as I find, also true that there is a usage among those concerned with the technology of colour photography to refer to those substances which on the surface of the developed paper, having been combined (in the sense of that word in the passage quoted), enable the human eye to see colours.
And there was, indeed, evidence, Professor Spring among the witnesses, to justify that conclusion. Justice Ryan, although he differed from the tribunal in finding what the meaning of the word was, did not mention or deal with the question of whether there was a trade usage and whether a trade usage had been found. Justice Gummow did, and can I take the Court to page 837 where his Honour at the top of the page said:
It is true that his Honour held that there was “a usage” among those concerned with the technology of colour photography which reflected the meaning which he gave to the expression. But, as I read the reasons, it was not held that this gave to “dyes” what Isaacs J. called a “definite commercial designation different from [its] ordinary meaning”:
We take that to mean and the reference to Whitton v Faulkiner to mean that a trade meaning can only be given and effect given to it where the words themselves, according to their trade meaning, are different from the ordinary meaning of the words. And in a sense, that is true if a word only has one meaning ‑ a limited word ‑ and the trade uses it in precisely the same way as a layman would, then it would be a waste of time to talk about trade meanings. One gets no additional assistance from that.
But in a case where the ordinary meaning of a word is not one definite and limited meaning but rather where the word admits of different ordinary meanings ‑ and in this case, differences which have a practical consequence, that is, either the colour being dye or a material produces colour, on the other hand ‑ then where the trade recognises one of those ordinary meanings to the exclusion of all others, we would say that it is a special meaning to which resort can be had in construing the phrase in which the word has a part, provided that it is appropriate to give it a trade meaning and not an ordinary meaning.
We do not understand Mr Justice Isaacs in Whitton v Faulkiner to be saying that is not so. His Honour there was dealing with a case where it was ruled inadmissible to lead any evidence of what the trade meaning of a phrase was because what the Court was concerned with was whether a number of chassis which carried electric motors constituting a road train, whether they answered the description of a motor car, lorry or wagon. This
was in 1915 and the evidence that was sought to be admitted was of what the trade would call this novel contraption when it finally arrived and the Court held you cannot do that. That is, you cannot say that there is a settled trade meaning to an object which has yet to be found and employed in the trade. That is, you cannot predict what the trade is going to do.
His Honour was not concerned with the question of a special meaning which was different from an ordinary meaning and, although his Honour did express it in those terms, at the page referred to, page 127, by Mr Justice Gummow, that was not necessary because his Honour was not directing his mind to the question of whether there had to be a difference between the trade meaning and the ordinary meaning, and we would say, logically, I suppose, yes, there must, when there is only one ordinary meaning and the trade meaning is precisely the same. It is not and assistance is to be giving in construing phrases and words, when the trade limits a word to one of its particular ordinary applications, to the exclusion of all others.
So that we would say the tribunal was dealing with a word which his Honour was entitled to find was to be construed according to its trade meaning. His Honour found what that trade meaning was and, we would say, his Honour was entitled to use it even though it was a limitation of the ordinary meaning of the words to one of their ordinary meanings, and did not produce a different result in terms of being a foreign concept ‑ something which a layman would not understand by the words.
Accordingly, your Honours, in our submission the tribunal correctly held that the respondent’s paper did not meet either of the criteria which were in issue. The tribunal was not obliged, we would say, to treat the words “silver dye bleach reversal process” as a composite phrase and exclude the assistance of a definite recognised trade meaning, and its findings as to the words “the image dyes” were within its exclusive province of deciding, as matters of fact, issues which were for it and not for a court reviewing its decisions under section 44. If the Court please.
BRENNAN CJ: Thank you, Mr Buchanan. Dr Emmerson.
MR EMMERSON: If the Court pleases, I hand up copies of the respondent’s outline of argument.
BRENNAN CJ: We already have that.
MR EMMERSON: I think it was faxed through but we have hard copies if these are easier to read and use.
BRENNAN CJ: These are quite legible, thank you.
MR EMMERSON: If the Court pleases. Our submission is that the Full Court was right, both in its identification of there being an error of law on what one might call the second phrase in dispute and also on the way that it handled the matter of construction in each case. Could I first deal with the matter of the phrase “silver dye bleach reversal process”. In our respectful submission, the Full Court was correct in saying that this phrase should be construed as a whole, but that where his Honour Mr Justice Jenkinson, sitting as the Administrative Appeals Tribunal, went wrong, was that instead of construing the phrase as a whole, he gave part of it, being the first three words and the last word, a meaning as a term of art.
We have used the expression, “term of art” in our outline of argument for this reason that it is easy to strike trouble by the use of the word “technical” in a case such as the present where one is concerned with the manner in which film is developed because, in a sense, every word may have a technical meaning in the sense that it is used in the context of technology but that meaning may, nevertheless, be an ordinary meaning rather than some special limited or expanded meaning and for the notion of some limited special meaning I have used the expression, “term of art”.
Where, in our submission, the tribunal went wrong was that having identified the evidence that the composite phrase “silver dye bleach reversal process” was not a term of art, the tribunal nevertheless went on to treat it as if it was made up of a term of art, namely “silver dye bleach process” with the word “reversal” tacked on to it.
Now, we say that this approach was wrong; that what one has got to do is recognise that you have here a composite phrase. It is describing a process. Clearly enough that process is a process whereby the paper is to be developed, and what one has to ask is whether, so approached, that phrase correctly describes the process by which the papers in dispute are developed. Now, my clients say that it does correctly describe that and that there was evidence before the tribunal which should have caused the tribunal to say that the phrase correctly described the process which is used for the development of the Agfa papers.
TOOHEY J: What do you mean, Dr Emmerson, when you say that there was evidence which required the tribunal to reach a contrary finding? I take it you are not saying that there was evidence as to the meaning of particular expressions or, if there was, that is something that the tribunal should not have relied upon. But are you saying that the tribunal should have, as it were, begun with the ordinary dictionary meaning of each word in the expression and applied that meaning in each case to the evidence?
MR EMMERSON: With the qualification that when one says “ordinary dictionary meaning” I am allowing in this discussion the idea that one is concerned with a dictionary such as would be used by people working in a technological context, but the steps that should be taken are to find out what is the ordinary meaning of the words used in the phrase and then to construe that phrase. Where the tribunal went wrong was in treating itself as being constrained by a term of art which was sometimes used for a particular process but that term of art was of course not the phrase that the court was called upon to construe. So it went wrong as a matter of construction.
McHUGH J: Could you take me to the passage where you say that the court felt constrained to come to that meaning as opposed to just using that evidence to reach its conclusion?
MR EMMERSON: What I had in mind was the passage that my learned friend relied upon in which, having considered various arguments that were put, what the court said at the top of page 796 was that on the whole of the evidence the tribunal was:
inclined to think that the words “silver dye bleach” should be given the meaning which usage indicates and that the word “reversal” is to be understood as meaning that reversal of image which occurs in the process of producing a positive print on paper from a positive film.
TOOHEY J: But that hardly amounts to a finding that the tribunal was constrained to approach the matter in the way in which it did as opposed to the tribunal holding that it was permitted to approach the matter in the way in which it did.
MR EMMERSON: I would accept that, your Honour. We would say, nevertheless, the tribunal did approach the matter in that way and the tribunal went wrong in so doing.
TOOHEY J: But, does your argument have to go so far as to say that, not only was the tribunal not entitled to feel constrained, but the tribunal was not permitted to take the approach that it did?
MR EMMERSON: We say that in the circumstances of the case, this was a wrong construction and in that sense, it was not permitted to take the approach that it did. I used that cautious way of putting it, if the Court pleases, because in our submission, our learned friends put rather too highly what was the approach of the Full Court. As we read, at least the decisions of Justices Gummow and French, they were not saying that one could never, under any circumstances, have regard to evidence about the existence of a term of art when construing a composite phrase.
What they were saying was that, having got to the point of construction of the composite phrase, the tribunal went wrong and, of course, they give reasons why they say the tribunal went wrong. It is that error of construction which constitutes the error of law that the tribunal made in considering the first of the phrases in dispute.
McHUGH J: I have some difficulty with that. It seems to me that what the tribunal said was that there is no dictionary in this trade which give these words a particular meaning. However, there are a number of dictionaries in the trade which give parts of these words a particular meaning and I am going to use this or that dictionary. My own knowledge of the word “reversal” ultimately I give these words a meaning. Where is the error of law in that, if that is the correct hypothesis?
MR EMMERSON: The error in law there would have been, if that was the approach of the tribunal, to say that there was no meaning at all to the words “silver”, “dye” and “bleach” other than in the context of “silver dye bleach process”. We say that that is not what the tribunal really did. The tribunal had before it evidence of various processes which were used for developing paper and it was, of course, my client’s case that once you have understood the meaning of the individual words, “silver”, “dye”, “bleach”, “reversal” and “process”, then you have got to construe the composite expression.
We say that the tribunal went wrong in construing the composite expression by treating it as if a component of it was “silver dye bleach process”, which it was not, and treating that as a term of art. We say that the words “silver”, “dye” and “bleach” are all part of the ordinary language of this sort of technology; that there is a perfectly rational meaning that one can give to the whole expression; that the whole expression reads on to the Agfa papers. It is by this artificial narrowing by treating the words as if they said, “silver dye bleach process” and then taking that as a term of art, which was wrong.
There was simply no evidence before the tribunal and nor did the tribunal suggest that the composite phrase was itself a term of art. It is the reconstruction of that composite phrase to make it into a term of art that we say was an error in construction.
MR EMMERSON: It says about the method of construction that it is appropriate to consider the purpose of the particular passage with which we are concerned as an aid to construction and if there is uncertainty about what particular phrases in it mean and if on one view it would carry out the purpose and on another view it would not, then we say that this is a reason which would tend to lead a court to conclude that the construction, which would actually satisfy that purpose, is the preferred construction.
BRENNAN CJ: We hear what you say. I do not think you need spend very long on it.
MR EMMERSON: If the Court pleases. We also submit - and I shall again submit this briefly - that the removal of the words “for the production of positive to positive colour prints” is of significance. Again, one looks at the history of these particular TCOs. One sees that there was present at one stage a phrase which would have the effect for which our learned friends contend, namely, it would exclude the present papers in dispute. However, that phrase was removed. We say that it is reasonable to infer that it was removed with the intention of making a change in the meaning of the TCO, and the meaning, plainly enough, is the removal of that limitation.
If the Court pleases, we have set out other references to authorities and a more detailed statement of the factual background in the outline of argument which has been handed to the Court. If there are no further questions, those are the submissions for the respondent.
BRENNAN CJ: Thank you, Dr Emmerson. Dr Buchanan.
MR BUCHANAN: Just a few short points, your Honour. My learned friend submitted that the Full Court was in fact laying down not a general rule at all, but simply identifying an error in the construction by the tribunal of this particular phrase, that is, that to use a trade meaning a part of this composite phrase was just that, an error in respect of this composite phrase and not necessarily an error in respect of any phrase. For the reasons we gave earlier, we submit that is not so and, in fact, what the court was doing was laying down a general rule. I can add this, that none of the judges of the Full Court identified any reason at all for choosing in this case to reject the technical or trade meaning of part of the composite phrase.
So that if all they were doing was identifying an error which was peculiar to this case and to this phrase, their Honours did so without in fact advancing any reason at all. My learned friend submitted that there was a contradiction between the trade usage or meaning given to the phrase “silver dye bleach process” on the one hand and “silver dye bleach reversal process” on the other, because witnesses said that the first was descriptive of an Ilfochrome process and the second was not.
One should put that in context. There were some witnesses - all except Flynn agreed that the first part of the phrase, the first three words, did not describe Agfa paper. But when it came to the witnesses dealing with reversal process by itself, some of them said that was Ilfochrome and apposite to Ilfochrome because, in going from positive again back to positive, there was a reversal of image. Other witnesses, and largely those of the respondent, gave their version as being one which did not fit Ilfochrome but did fit Agfa paper. They called the reversal for their purposes as going from the negative print or the negative film to the positive print.
So that it is not a case that the evidence established that the phrase, if one gave a technical meaning to the words “silver dye bleach” was necessarily contradictory with what remained, namely reversal process. There was a body of evidence which saw them as being compatible, and that was the body of evidence which his Honour chose.
DAWSON J: Dr Buchanan, you may be going to deal with this: do you have anything to say about the proposition that the tribunal went wrong in treating the TCO as merely, as it were, naming the Ilfochrome process as opposed to describing a process which was of more general application?
MR BUCHANAN: Yes, your Honour. What the court did and the terms in which it analysed it make it clear, is not that it was identifying or treating the evidence from the trade witnesses as being, effectively, a naming exercise, that is, “These words are shorthand for Ilfochrome”, but rather that their analysis and the way in which the court treated it was, instead, using their evidence to identify a process which, in fact, was the process used in Ilfochrome photographic paper. It may be, but because it is not the way the case developed it might have described other paper as well. One is not to know, but it described a process and, in fact, an identifiable and identified user of that process was Ilfochrome, but that was the - - -
DAWSON J: And it was a process so described which excluded Agfa paper?
MR BUCHANAN: Yes, but not because it equals Ilfochrome. Rather because that process was not one which embraced the steps used in the development of Agfa paper. And there was one last thing we wanted to say and that was that my learned friend referred to, at page 826 of the appeal book, a passage from the judgement of Justice Gummow in which it seems
to be suggested that it is a manner or question of law as to whether where there are several ordinary meanings, one is to be chosen. It is a difficult passage. It follows on as a qualification from a paragraph which deals with the application of a found meaning to particular facts, and we doubt that his Honour really meant, or that the passage at page 826 in paragraph 7 is to be construed as standing for the proposition that where an ordinary word construed according to ordinary meaning has several meanings and not simply not one narrow meaning, that it is a question of law which of those one is to choose.
And we say that logically it would seem that cannot be right, because if ascertaining an ordinary meaning is a question of fact, the tribunal of fact will, on this view, have no task to perform. The only case where it will ever be a question of fact will be one where there is only one meaning, and so there will be nothing for the tribunal of fact to do. We would rather say that when the courts say, as they have on several occasions, that the ascertainment of the meaning of an ordinary word is one of fact, what is involved in that - not in every case, but in many cases - will be the choosing of the appropriate meaning among shades of meaning or different meanings which the dictionary will give to an ordinary word. If the Court pleases.
BRENNAN CJ: Thank you, Mr Buchanan. The Court will consider its decision in this matter.
AT 3.53 PM THE MATTER WAS ADJOURNED
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