Collector of Customs v Myer Stores Pty Ltd

[1992] FCA 100

* ' 9 JUDGMENT No. t& ..... / .... !L

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) No. VG127 of 1991
GENERAL DIVISION	)

ON APPEAL from the General Division of the Administrative

Appeals Tribunal

BETWEEN:  COLLECTOR OF CUSTOMS

Applicant

m:  MYER STORES PTY. LTD.

Respondent

:  Jenkinson J.

PLACE: Melbourne

m:  12 March, 1992

1 3 MAR 1992

MINUTES OF ORDER FEDERAL COURT OF

AUSTRALIA ,,
PRINCIPAL

REGISTRY

THE COURT ORDERS THAT:

1. The Appeal be dismissed.

2. The Respondent's costs be paid by the Applicant.

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

ON APPEAL from the General Division of the Administrative

Appeals Tribunal

BETWEEN:  COLLECTOR OF CUSTOMS

Applicant

AND :  MYER STORES PTY. LTD.

Respondent

Jenkinson J.
Melbourne

12 March, 1992

REASONS FOR JUDGMENT

Appeal from a decision of the Administrative Appeals

Tribunal.

The Tribunal classified certain goods to heading date on which they were entered for home consumption. A 5805.00.00 of Schedule 3 to the Customs Tariff Act 1987 on the	simple picture embroidered on cloth held in a frame
constituted the goods. Other goods were classified to heading
6308.00.10. That was a packaged set of materials by use of which such an article as had been classified to heading 5805.00.00 might be made : an illustration of the picture, instructions for making it, a needle, a piece of cloth, a frame and a loop by which to hang the completed picture. It was common ground that the working of a picture in threads on to cloth by the use of a needle was embroidery. Chapter 58, within which heading 5805.00.00 falls, has for a heading the words "Special woven fabrics; tufted textile fabrics; lace; tapestries; trimmings; embroideries". Heading 5810, which is within Chapter 58, comprehends "Other embroidery - Of other textile materials". But Note 6 to that Chapter provides:

"In 5810, 'embroidery' means, inter alia, embroidery with metal or glass thread on a visible ground of textile fabric, and sewn applique work of sequins, beads or ornamental motifs of textile or other materials. The heading does not apply to needlework tapestry (5805.00.00)."

Headlng 5805.00.00 reads:

"Hand-woven tapestries of the type Gobelins, Flanders, Aubusson, Beauvals and the like, and needle-worked tapestrles (for example, petit point, cross stitch), whether or not made up."

The Tribunal found that the word "tapestry" had in the past

denoted a woven figured fabric in which the pattern is created by the presence of coloured yarn in warp or weft, but that, as	the Tribunal said in paragraph 16 of its reasons for decision,
"it now applies to canvas work embroidery, as well as to the creation of a woven fabric. This extension is recognised in heading 5805 of the Tariff, whlch includes both 'hand-woven tapestries' and 'needle-worked tapestries'. We accept that the latter expression is intended to refer generally to canvas work." These findings were not challenged by Mr. Jolson of counsel for the applicant on the hearing of the appeal, and
they found ample support in the evidence. For example, "Textile Terms and Definitions" (Manchester 1975 - The Textile Institute) defines "needle work tapestry" as a "canvas-type fabric on which the pattern has been superimposed by machine or hand needlework. Usually the whole surface of the fabric is covered with stitches of threads of various colours. The stitches mainly used are petit-point, gros-point, cross- stitch, and tent-stitch". The Tribunal had recorded in its reasons for decision the evidence of Wanda Rae McPherson, the only witness who gave oral evidence relevant to the question whether the fabric on which the pattern was superimposed in these goods was a "canvas-type fabric". That fabric was aida cloth. Paragraph 12 of those reasons reads:

"She went on to explain that 'canvas work' is embroidery with a threaded needle on a lattice- like woven fabric known as a 'canvas', which has spaces between the threads which were larger in size than the threads themselves, allowing for the threaded needle to fill those holes. The fabrlc was once made of actual canvas but would now be linen, cotton or silk. Generally, but not always, the whole of the

that no background was visible. Stitches used

fabric would be covered with embroidery, so

were principally cross stitch or tent stitch. The size of the holes in the canvas and the thickness of the thread would both be selected so as to achieve that effect. Aida cloth was not regarded as a 'canvas' in this context, because the threads of Aida cloth were dominant rather than the holes. Gobelins, Flanders, Aubusson and Beauvais tapestries were all woven. Canvas work would not be washed on completion."

It was submitted to the Tribunal, as it was submitted on the appeal, on behalf of the Collector that these goods were not

canvas work because the aida cloth was not a fabric of the kind which might be regarded as similar to canvas. (It was clear from other evidence that some fabrics were so regarded : linen, polyester and sllk gauze, for example.) Mrs. McPherson had excluded aida cloth - "aida cloth is not what anybody would regard as a canvas", she swore - on the ground that in aida cloth the threads are "very dominant" and the spaces between threads "are relatively insignificant". In dealing with the submission on behalf of the Collector that because aida cloth was not what anybody would regard as canvas the work done on it was not canvas work and the product of the work therefore not "needle-worked tapestries" within headlng 5805.00.00, the Tribunal said in its reasons:

" . . . the distinction between Aida cloth and

'canvas' is not, in our view, sufficiently great to be determinative of the matter. The Aida cloth has the same regularity of weave as the "canvas" of canvas work: the distinction lies in the relative size of the holes, the Aida cloth being in that respect a miniature of

'canvas ' . "

Mr. Jolson submitted that this observation disclosed error of	law. It was an irrelevant observation, he sard. The relevant
distinction between aida cloth and canvas, Mr. Jolson submitted, lies in the different proportionate relationships of the area of thread and the area of the space between threads. Certainly that is the distinction Mrs. McPherson drew, as reference to the transcript of her evidence and to the Tribunal's summary of her evidence which I have quoted shows. But I cannot think that the passage from the Tribunal's reasons last quoted justifies a conclusion that the Tribunal misconceived the distinction to be one between the size of the space between threads in the one fabric and the size of the space between threads in the other. The distinction Mrs. McPherson drew in her evidence was correctly described in the Tribunal's summary of her evidence. The imperfect expression of the distinction later in the reasons should in my opinion be taken merely as that : imperfection of expression. The phrase "relative size of the holes" should be understood as a reference to the difference of proportion between area of thread and space separating thread in the two
fabrics .
Mr. Jolson submitted further that it was to be inferred from the Tribunal's reasons that it had failed to accord the evidence of Mrs. McPherson and other documentary evidence the importance which that evidence had in establishing a distinction, between "canvas-type fabrlc" and aida cloth, whlch required that the products of needlework on
aida cloth be denied description as "needle-worked tapestries".
Aida cloth, the documentary evidence established, is a basketweave fabric in whlch several (for example, four) threads are woven together to form distinct blocks in the weave. Consequently the spaces between the threads are easy to see. Two dictionaries of textile terms which were in evidence before the Tribunal, and to one of which the Tribunal's attention was specifically directed, include the phrase "aida canvas". But in each case the fabric is described as brown or tan and the phrase "aida canvas" may not comprehend the relatively soft and white fabric of the goods here in question. The documentary evidence, which was voluminous, admitted of a conclusion that precision of meaning of the terms under consideration by the Tribunal had not been achieved by those who have occasion to use them. It was in my opinion open to the Tribunal on the whole of the evidence to find-that these goods were withln the meaning which informed usage in this country at this time has glven the expression "needle-worked tapestries". I am not able to conclude that there was such a fallure on the part of the Tribunal to take into consideration, or to reasonably evaluate, any of the evidence as would constitute error of law.
The projected picture design of the embroidery work for which the materials were provided in the packaged sets left uncovered part of the aida cloth. That part of the aida
cloth thus formed part of the background of the framed picture. So too was part of the aida cloth left uncovered in
the goods the Tribunal classified to heading 5805.00.00. It was submitted to the Tribunal, and on the appeal to the court, that needle-worked tapestries have the canvases on which the embroidery is worked completely covered by the embroidery and that the Tribunal fell into error of law by failing to exclude these goods from the headings to which they were assigned by the Tribunal because the aida cloth was not (or, in the case of the packaged sets, would not when embroidered be) completely covered by embroidery.
The evidence may have compelled the conclusion that it is an essential characteristic of needleworked tapestry that what is embroidered on to the canvas completely covers the canvas beneath the embroidery. I need express no concluded opinion about that. But the evidence drd not in my opinion compel a conclusion that part of the underlying canvas is never, or ought never be, left uncovered by embroidery. Not only was the evidence of Mrs. McPherson inconsistent with such a conclusion, but so also was other, documentary evidence.
The goods the subject of classification might without harm be washed. It was said that the evidence was that needle-worked tapestries should not be washed, but dry- cleaned or cleaned with an upholstery foam cleaner. Therefore, rt was submitted, these embroidered pictures were
not needle-worked tapestries. The Tribunal dealt with the submission in its reasons thus:

"As to washing, we note in the extracts from the book Learn Tauestry which were before us the direction that canvas work must be dry cleaned because 'the use of water softens the canvas'. In these days of artificial textiles it would seem to us quite possible that there might be a fabric properly to be called 'canvas' in this context which was washable without softening but otherwise indistinguishable from other forms of 'canvas'. The use of such a fabric would not of itself render the work done on it not 'canvas work' so as to be not 'tapestry'."

It was submitted that the assertion in that passage of the existence of the possibility therein specified was unsupported by any evidence. Be it so, the conclusion is unaffected by that circumstance, and no error of law infecting the Tribunal's decision is in my opinion disclosed.

The appeal should be dismissed with costs.

I certify that this and the 7
preceding pages are a true copy of
the Reasons for Judgment of the

Honourable Mr. Justice Jenkinson.

-

Associate

Dated: 12 March, 1992

Counsel for the Applicant Mr. H. Jolson instructed by

Australian Government

Solicitor

Counsel for the Respondent	Mr. H. Reicher instructed by Wisewoulds
Dates of Hearing	6 and 11 October, 1991