Commissioner of Taxation v Thomson Australian Holdings Pty Ltd

[1989] FCA 382

Re: COMMISSIONER OF TAXATION
And: THOMSON AUSTRALIAN HOLDINGS PTY LIMITED; MENTOR PRESS PTY LIMITED
and GLASS'S DEALERS GUIDES PTY LIMITED; COOK & SNELL (PRINTERS) PTY
LIMITED and GLASS'S DEALERS GUIDES PTY LIMITED
Nos. G.1416 - G.1418 of 1988
FED No. 382
Sales Tax
87 ALR 682/20 ATR 983
25FCR 481

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Burchett(2) and Gummow(3) JJ.

CATCHWORDS

Sales Tax - Section 5(1) and First Schedule to Sales Tax (Exemptions and Classifications) Act 1935 - whether the subject publications are excluded from sales tax exemption under item 51(1)(c) of the First Schedule - whether subject publications are "catalogues" or "price-lists" for the purposes of the Act - question to be tested by reference to popular usage and essential character of the goods - observations on construction of the Schedule and the meaning of "catalogues".

Sales Tax (Exemptions and Classifications) Act 1935, s. 5(1), item 51(1)(c) of First Schedule.

HEARING

SYDNEY

#DATE 20:7:1989

Counsel for the Appellant: Mr A. Slater

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr T. Simos, Q.C.

Mr K. Weber

Solicitor for the Respondent: Allen Allen & Hemsley

ORDER

The appeals be dismissed with costs

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

JUDGE1

These are appeals from a single judge of this court in matters which were remitted to this court from the High Court of Australia. The appeals have been consolidated. The question before us is whether the publication "Thomson's Liquor Guide" and various "Glass's Dealers Guides" ("the Publications") are exempt from sales tax by virtue of sub-s.5(1) and item 51(1)(c) of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 (C'th). Item 51(1)(c) exempts "Books, pamphlets, periodicals, magazines and printed music", not including "catalogues or price-lists". At first instance, it was conceded that the publications were books or periodicals. His Honour held that the publications were neither catalogues nor price lists, and hence were exempt from sales tax. The Commissioner of Taxation ("the Commissioner") appeals from that decision.

1. The dictionary meanings of catalogue and price-list are very wide. Construing their application in item 51(1)(c) it is necessary to bear in mind that they are used in the context of legislation imposing a tax upon sales. Presumably a mail order catalogue issued by a retailer would fall within the description "catalogue" in this provision; presumably a library catalogue of books would not. A list of prices at which a particular retailer or wholesaler was offering goods for sale would clearly fall within the description "price-list"; presumably a list of prices at which famous paintings had been offered for sale and sold in the past ten years would not.

2. In Rotary Offset Press Pty Limited v. Deputy Commissioner of Taxation for the Commonwealth (1972) 46 ALJR 609 at p 609 in a statement (quoted by Gibbs C.J. in Downland Publications Limited v. Deputy Commissioner of Taxation of the Commonwealth (1983) 83 ATC 4137 at 4139) Stephen J. said:-
   

"It seems to me that the test properly is one of popular usage and ... that the matter is entirely a question of fact to be decided upon an inspection of the document guided by common knowledge."

1. In the case before us it was not disputed that the learned trial Judge was correct when he said that:
   

"the task of the Court is to determine the essential character of the goods, what essentially the goods are, not some characteristic that the goods might have. Essential character derives from the basic nature of the goods, from what they are, though composition, function and other factors necessarily play a part."

1. I turn now to the publications in question in these appeals. Thomson's Liquor Guide is a monthly publication purchased by subscription by persons involved in the liquor trade. It contains the following sections:
   

i) Ready Reckoner which is a list indicating

(a) the buying price per case

(b) selling prices which achieve varying gross profit margins between 10% and 50%,

ii) Lists of alcoholic beverages (e.g. spirits, wine,

beer, liqueurs, etc.) which include particulars of:

(a) vintage

(b) size

(c) packaging

(d) strength

(e) wholesale price per dozen

(f) distributor's recommended retail price

iii) New Products List

iv) Suppliers Directory

v) Wholesaler Licence Numbers.

1. The evidence indicates that wholesalers and retailers do not generally purchase liquor at the wholesale prices stated in the guide, but rather use the prices stated as a basis from which to bargain. Similarly, the recommended retail price is only used as a guide.

2. Glass's Dealers Guides are published for a variety of different vehicles, including passenger vehicles, older cars, marine and motor cycles. The guide for passenger vehicles contains the following sections:
   i) Current prices for new cars, alphabetically listed by make. The
   

following particulars are included for each model:

(a) body - number of doors and body style

(b) engine capacity

(c) power units

(d) number of cylinders

(e) weight units

(f) insurance category

(g) price for automatic and manual models.

ii) yearly registration numbers iii) trade directory including

(a) car auctioneers

(b) trade cash buyers

(c) advertising rates

iv) used car values including the following information

(a) year of original registration in Australia

(b) original cost new

(c) identifying features for each model

(d) average trade price for buying vehicles in standard condition

(e) average resale value for selling vehicles in standard condition.

1. It will be noted that two of the elements contained in Thomson's Liquor Guide are a list of alcoholic beverages which include particulars of wholesale price per dozen and distributor's recommended retail price. However, having regard to the whole character of the publication the other material in it and the use to which it is put, I would conclude that it would not in popular usage be described as a price list. So far as the Glass's Dealers Guides are concerned these do not present any of the features of a price list.

2. Both Thomson's Liquor Guide and Glass's Dealers Guides contain much material which is within the nature of a catalogue in its dictionary meaning. However, looking at each publication as a whole, and paying regard to its essential character rather than the character of some particular aspects of it, I have formed the view that in popular usage, none of the publications would be described as a catalogue.

3. As the learned trial Judge has held, in their essential nature they would be described rather as guides. It appears to me that the trial Judge was correct in his decision that the publications were exempt from sales tax.

4. I would dismiss the appeals with costs.

JUDGE2

By section 5(1) of the Sales Tax (Exemptions and Classifications) Act 1935, entitled "An Act relating to exemptions from, and classifications of goods for the purposes of, Sales Tax", it is provided:

"Notwithstanding anything contained in any Sales Tax Assessment Act, sales tax shall not, subject to this section, be payable upon the sale value of any goods covered by any item or sub-item in the first column of the First Schedule, under any Act specified in the second column of that Schedule opposite that item or sub-item."

In the first column of the First Schedule, item 51 contains the following:

"(1) Books, pamphlets, leaflets, periodicals, magazines and printed music, but not including (unless covered by any other item or sub-item in this Schedule) -

(a) books of account; books of receipts, cheques, deposit slips, bank withdrawal forms, tickets, dockets, labels or order forms; books of blotting paper, books of blank sheets, or of sheets ruled or printed, for writing notes, letters, exercises, accounts or for record purposes, or for sketching, drawing, colouring or painting (not being children's books containing printed illustrations for copying or colouring or for copying and colouring); albums, books of samples, menus or calendars; booklets of printed matter conveying greetings or sympathy; diaries; other stationery in book form;

(b) programmes, schedules, syllabuses, guides or souvenirs of entertainment, amusements, exhibitions, competitions or sporting events;

(c) catalogues or price-lists;

(d) memoranda of association, articles of association, balance-sheets, statements of accounts or prospectuses of trading or other concerns carried on for the profit of individuals or associated reports;

(e) advertising matter; or

(f) books, pamphlets, leaflets, periodicals, magazines or printed music published or to be published for the purpose or as a means of advertising the business or the products of the publisher or of the person or persons for whom they are or are to be published.

(2) Books, pamphlets, leaflets, periodicals or

magazines issued or to be issued by or on behalf of an organization which is not carried on for the profit of individuals, for the purpose of advertising tourist resorts or disseminating information concerning tourist traffic.

For the purposes of this item, "periodicals" means any publications issued at regular intervals not exceeding three months."

Opposite sub-item 1 of item 51, the second column of the First Schedule specifies "Nos. 1 to 9", thereby referring to the Sales Tax Assessment Acts bearing those numbers.

1. These consolidated appeals are concerned with the question whether certain publications, conceded to be books or periodicals, are taken out of the general exemption conferred by sub-item 1 by virtue of the exclusion under paragraph (c) of "catalogues or price-lists". No issue has been raised in respect of the operation of the parenthetical words "unless covered by any other item or sub-item in this Schedule". It was not contended that item 59, which refers to certain trade catalogues and other catalogues and price-lists, has any application.

2. The publications in question in the appeals bear the names "Thomson's Liquor Guide" and "Glass's Dealers Guide". (In the case of the latter, there are several versions relating to different types of vehicles and boats, and it is convenient to refer to one only as typical, "Glass's Dealers Guide to Passenger Vehicle Values" which, however, will be called simply "Glass's Dealers Guide".) Both Thomson's Liquor Guide and Glass's Dealers Guide are sold by subscription, the subscribers to the one being in the main wholesalers and retailers of liquor, clubs and hotels, and the subscribers to the other being in the main motor vehicle dealers, government departments, and companies concerned with the motor vehicle industry, including insurance companies and finance companies.

3. Thomson's Liquor Guide is a fairly substantial magazine, a sample of which produced to the court contained just over one hundred pages, of which twenty are concerned with tables (and how to use them) for ready reckoning of liquor prices. The remaining pages, under the names of various types of liquor, list brand names and distributors' codes, sizes of bottles or other containers, pack sizes (where appropriate), wholesale prices, what are indicated to be the retail prices recommended by distributors, and other information such as the country of origin of the liquors involved. In the case of draft beer and stout, prices are shown which are based on a metropolitan hotel survey of the most common selling price. In the case of whiskies, information is furnished concerning the areas of origin of various malt whiskies, and in the case of imported wines, information is given concerning the main wine growing areas of Europe and the styles and grape varieties associated with those areas. Maps of Scotland, France, West Germany and Italy illustrate the information furnished. The final ten pages are devoted to "this month's new products" and a suppliers directory and list of licence numbers of wholesalers, intended to facilitate the keeping, in compliance with liquor laws, of liquor purchase registers.

4. The trial Judge accepted that the wholesale price per dozen shown in Thomson's Liquor Guide, though an actual price fixed by the particular distributor, "is not the actual price at which wholesalers or retailers would expect to buy their stock". Most liquor is not in fact purchased from the distributors mentioned in the Guide, but from a very small number of leading wholesalers at prices negotiated by reference to the Guide.

5. Glass's Dealers Guide to Passenger Vehicle Values seems clearly to be just what the title implies. It contains some 350 pages, in which are listed comprehensively makes and models of motor vehicles which may currently be available, new or second hand. There is apparently also a similar publication (referred to as an Older Cars Guide) for vehicles the age of which would make them relatively uncommon. The Guide contains details concerning standard and optional equipment of vehicles and identifying features. The values stated in respect of used vehicles, which take up the bulk of the booklet, are not actual prices; they are based upon what are said to be the prices prevailing in the trade. As the trial Judge put it: "They simply indicate what the publishers understand to be the prevailing level of prices for the goods as described, in good condition."

6. The trial Judge distinguished Thomson's Liquor Guide from Glass's Dealers Guide in that the Liquor Guide "does list the distributors' wholesale price per dozen for the liquor as described." He added:
   

"However, the Guide (that is the Liquor Guide) does not offer any goods for sale and is not a list of the prices at which distributors in fact offer goods for sale. I think that, like Glass's Dealers Guides, this publication is a guide to value, a guide to the prices which retailers should pay for their stock and a guide to the prices at which they should sell their stock to the ultimate consumers. Thomson's Liquor Guide is, therefore, a guide to values, not a price list."

Davies J. also remarked that the listing of goods in the guides is incidental to their function of providing ready aids to the assessment of values of the specified goods. As he pointed out, advice on values cannot be given unless the goods are described. He concluded:

"The essential character of both Thomson's Liquor Guide and Glass's Dealers Guides is that they are guides to value."

1. The effect of paragraph (c) of item 51(1) was considered by Gibbs J. in Deputy Commissioner of Taxation of the Commonwealth v. Rotary Offset Press Pty Ltd (1971) 45 ALJR 518. That case concerned a publication called The Realtor. The Realtor contained particulars of properties listed for sale by agents who were members of a multiple listing scheme. At 520, Gibbs J. said:
   

"Each copy of The Realtor thus contained a complete list, with particulars, of every property currently listed for sale under the multiple listing service."

At 521, Gibbs J. said:

"It does not seem to me that The Realtor is a catalogue or price list within par.(c). It is true that the publication does systematically list properties for sale in order of their localities and that the prices asked for the properties are stated, but it would be to strain language, and to fail to recognise the shades of meaning of the words, to say that The Realtor is a catalogue or price list."

He went on to hold, however, that The Realtor was "advertising matter" within paragraph (e) of item 51, and that it was not a newspaper within item 54.

1. On appeal, in Rotary Offset Press Pty Limited v. Deputy Commissioner of Taxation of the Commonwealth (1972) 46 ALJR 609, the Full Court affirmed the decision for the reasons Gibbs J. had given. Stephen J. added:
   

"(I)t seems to me that it may be undesirable to seek to create conclusive definitions of what are or are not newspapers, particularly when usage is changing quickly especially in fields such as newspapers which are influenced by changing advertising techniques. It seems to me that the test properly is one of popular usage and to my mind the matter was well expressed by Mr Justice Hood when he said in Re Bradshaw's Guide; Ex parte Stillwell (1903) 29 VLR 415, that the matter is entirely a question of fact to be decided upon an inspection of the document guided by common knowledge."

In the Full Court, nothing was added to what Gibbs J. had said concerning paragraph (c).

1. Having regard to the fact that Gibbs J. found of The Realtor "that the publication does systematically list properties for sale in order of their localities and that the prices asked for the properties are stated," his curt rejection of the argument that The Realtor was a catalogue or price-list within paragraph (c), as straining the language and failing to recognise the shades of meaning of the words, suggests that he did not read the paragraph in any expansive sense. The word "catalogues", standing alone, is capable of a wide range of applications. It can refer to any list or register, as in the poet Keats's line about "the dull catalogue of common things", but in ordinary parlance it is used in a more confined sense as referring to a systematic list of things available at a particular place or from a particular organization or person: e.g., the catalogue of a library, or of the goods sold by a particular manufacturer. Despite the existence of the wider meaning, there is a great number of lists, for which there are more precise words, such as menu, calendar, programme, schedule, syllabus, directory, or bibliography, to name but a few, which no one with an ear attuned to the nuances of the English tongue would call catalogues. Although it is possible to speak of a catalogue of wrongs, such a usage is really metaphorical; apart from metaphor, a catalogue, as I have indicated, is in ordinary parlance a particular kind of list, just as "menu", "calendar" and similar words refer to particular kinds of lists. If a general word is to be used which comprehends them all, that word is "list". The First Schedule to the Act is itself a catalogue in the widest sense, but it would be a misuse of language so to describe it, there being the precise word "schedule".

2. When attention is directed not merely to the word "catalogues", but to the phrase "catalogues or price-lists", the narrower meaning of "catalogues" is immediately suggested. It does not matter whether that meaning is regarded as conveyed by the composite expression, or whether resort is had to the maxim "noscitur a sociis". Either way, the expression suggests lists of a fairly special and particular kind. If regard is had as well to the context in which paragraph (c) appears, it becomes quite apparent that the paragraph should not be read in an expansive sense. For it takes its place, in item 51, as one of a series of lettered paragraphs, each of which is of a precise nature far removed in concept from the catch-all effect the wide meaning of the word "catalogues" would give to paragraph (c). Paragraph (a), as its concluding words "other stationery in book form" make clear, though it enumerates many things falling within that description, is confined to one particular category of stationery; it is noteworthy too that it includes books of menus and calendars, which would be catalogues in the widest sense. Paragraph (b) refers to a quite limited class of documents associated with the occasions referred to in it, and again it embraces a number of documents which would be catalogues in the widest sense. Paragraph (d) is concerned with a closely confined category of documents associated with the organization and administration of businesses. Paragraph (e) has but one subject matter. Paragraph (f), as construed by Gibbs J. in the Rotary Offset Press case at 521, deals with a quite precise category of advertising. Sub-item 2 deals with another precise category of advertising.

1. It would be to strike one off-key note in a scale to intrude, into item 51's succession of discrete subject matters, the universe of things that would be imported by understanding "catalogue" in a wide sense. In its context, paragraph (c) should be regarded as dealing with another single category of documents, of a character separate from that dealt with by each of the other paragraphs of sub-item 1, and by sub-item 2. When the paragraph is read in this way, the word "catalogues" takes colour from the expression "price-lists". An understanding of it in the sense of which a manufacturer's catalogue would be an illustration would also conform to the popular usage which Stephen J. regarded as the proper test of another expression in the same schedule.

2. Should, however, the word "catalogues" be, in its context, merely ambiguous, weight would have to be given to the nature of the Act, emphasized by its long title, as legislation concerned with the imposition of a tax. If truly ambiguous, it should not be construed against the subject: Western Australian Trustee Executor and Agency Company Limited v. Commissioner of State Taxation of the State of Western Australia (1980) 147 CLR 119 at 126-127.

3. Even if, uninfluenced by the expression "price-lists", the word "catalogues" is understood in the full sense suggested by the Shorter Oxford English Dictionary, 3rd ed. (1980), "a list or enumeration systematically arranged in alphabetical or other order, often with the addition of brief particulars", Glass's Dealers Guide is not a catalogue. It is much more than that. The skill and work which have produced it, and are reflected in its contents, were not expended upon the system of its arrangement, but upon the assessment of prevailing values, and upon the identification of those features of various models of cars which are significant for the fixing of their price, or for the detection of error or deception in respect of their identification. The compilation of a catalogue is a labour of a different order, and the addition of brief particulars, which need not transform its character, is in no way comparable to the furnishing of assessed values and the selection and statement of criteria by which false claims may be exposed. Plainly, the publication is not a price-list. The values stated in it, though assessed by reference to prices, are not anyone's prices of any vehicles. They are averages achieved at a particular time by vehicles of the kind described, in good condition.

4. Likewise, Thomson's Liquor Guide is no one's price-list, and is much more than a mere catalogue. Although it does (as did The Realtor) contain prices rather than values, for most items, they are not the price-lists of stores or suppliers, but part of a compilation designed to assist store proprietors in fixing their own prices, and in bargaining with their suppliers, who do not in general supply them at the wholesale prices stated. Much additional information is also set out in the publication. To call it a price-list or a catalogue would be to attribute to the whole characteristics of parts of it in a way that would lead to misdescription. (Cf. Deputy Federal Commissioner of Taxation v. Thomson Publications (Australia) Pty Limited (1979) 79 ATC 4296 at 4305, where Waddell J. held that a publication only two-thirds of which comprised advertisements could not be regarded as "advertising matter" within item 51(1)(e).) Such a general compilation would not, in its nature, according to ordinary usage be called either a price-list or a catalogue, and still less so when the substantial proportion of additional material is taken into account. This publication, too, is a kind of guide, as its title claims for it.

5. The appeals should be dismissed with costs.

JUDGE3

These are consolidated appeals from the decision of Davies J. given on 23 November 1988 in three actions which had been remitted to the Federal Court from the High Court of Australia and which were heard together before his Honour.

1. The issue is whether certain publications are exempt from sales tax by reason of the operation of sub-s. 5 (1) of the Sales Tax (Exemptions and Classifications) Act 1935, together with Item 51 (1) (c) of the First Schedule to that statute. One publication is entitled "Thomson's Liquor Guide". There are also several publications each entitled "Glass's Dealers Guide".

2. Item 51 provides for exemption of certain items, but with qualifications to the exemption. Item 51 relevantly states:
   

"51. (1) Books, pamphlets, leaflets, periodicals, magazines and printed music, but not including (unless covered by any other item or sub-item in this Schedule) - . . .

(c) catalogues or price-lists . . ."

There was some short discussion of the meaning of para. (c) at first instance in Deputy Commissioner of Taxation v Rotary Offset Press Pty. Ltd. (1971) 45 ALJR 518 at 521, but I do not find what was there said of assistance in the present case; on appeal (1972) 46 ALJR 609, there was no discussion of para. (c).

1. His Honour held that Thomson's Liquor Guide and Glass's Dealers Guides were exempt items and that they were not "catalogues or price-lists". The appellant challenges those holdings, and seeks declarations to the effect that the publications are not exempt items.

2. In Western Australian Trustee Executor And Agency Co. Ltd. v Commissioner of State Taxation (W.A.) (1980) 147 CLR 119 at 126-127, Gibbs J. said:
   

"The established rule that no tax can be imposed on a subject by an Act of Parliament without words which clearly show an intention to lay the burden upon him does not mean that the court will strive to find loopholes where none are apparent; the words of the Act must be given a fair and reasonable construction, without leaning one way or the other. However, although, if the terms of the Act plainly impose the tax they should be given effect, equally if they do not reveal a clear intention to do so the liability should not be inferred from ambiguous words."

1. The relevant facts are not in dispute. Nor is it disputed that his Honour correctly approached the case as one in which the task of the Court was to determine the essential character of the goods as deriving from the basic nature of the goods, although a part necessarily would be played by evidence as to the nature of the trade in which the publications circulated, and as to the function which the publications served in that trade.

2. Thomson's Liquor Guide is published once a month and distributed amongst the liquor trade, particularly amongst retailers of liquor. The publication lists spirits, wine and other alcoholic beverages sold by distributors who are either importers or producers of those beverages. Particulars are given of the size of bottles, of the distributors' wholesale price per dozen and, in many cases, the distributors' retail price is given.

3. In the opening pages of the Thomson's Liquor Guide, instructions are given as to use. There follows some 18 pages of what is called the "Ready Reckoner" showing what the retail price per case or bottle should be, having regard to the cost of purchase per case or bottle, and to various percentages of gross profit, ranging from 10% to 50%. The Ready Reckoner lists the original buying prices per case, such prices including sales tax, and from these there is a calculation of the in-store cost per bottle, including licence fee, with a calculation of the sales price, depending upon the percentage of gross profit which is sought.

4. After the Ready Reckoner, there follows what is described as the "Product Index". This precedes some 70 pages with details of available liquor as mentioned above. There is then a section which identifies new listings of the month. There is also a "Supplier's Directory" which lists the particulars of the distributors and wholesalers with the number by which each is identified elsewhere in the Guide. Finally, there is a list of wholesalers with their licence numbers.

5. In the opening pages of Thomson's Liquor Guide, there is various explanatory material. Under the heading "How to Use Thomson's Liquor Guide", there is included the following:
   

"A number in brackets (32) appears beside each product. The number refers to the wholesaler, distributor or manufacturer from whom that product is available at the wholesale price. The list of distributors and wholesalers in numerical order with full address and telephone numbers appear at the end of the guide (see content index).

. . .

YOU, THOMSON'S LIQUOR GUIDE AND THE TRADE PRACTICES ACT 1974. As a subscriber to TLG you receive a list of suggested retail prices for a range of liquor products. TLG is published by Thomson Australia Holdings Pty. Limited, a totally independent publishing company with no other interests in the liquor industry. Thomson's maintains a staff to collect product and price information, to interpret industry costs and to produce TLG. You, the subscriber, must decide how you use this guide to help you in pricing the products you sell. No person whether company or individual, may tell you at what price you will sell your goods. It is also inadvisable to talk to any other retailer (of similar products) to arrive at a selling price or pricing policy."

(Emphasis supplied.)

Under the heading "How to work the Ready Reckoner" the following appears:

"More than 70 per cent of on and off premise liquor retailers buy from a wholesale or buying group organisation which sells its accounts cases with sales tax included. The Ready Reckoner's first column on the left ranges from $15 to $400 per case by price including sales tax . . .

You are the only one that can determine what price can be charged in considering the competitive nature of the retail environment and your overheads and needs. The variation too, between wines (local & imported) and spirits, necessitates different gross profit ambitions. And should licence fee or sales tax rates change, the Ready Reckoner can deal immediately to maintain the gross profit you are expecting."

1. Thomson's Liquor Guide is sold by subscription only, the subscribers consisting mainly of liquor wholesalers and retailers, licensed clubs and hotels. In New South Wales, retailers purchase 70-75% of their stock from three leading wholesalers, rather than from the distributors mentioned in Thomson's Liquor Guide. No doubt, as his Honour said, these wholesalers purchase in bulk and negotiate their own prices. It follows that although the wholesale price per dozen stated in the Guide is an actual price fixed by the distributor, it is not the actual price at which wholesalers or retailers would expect to buy their stock. The evidence was that wholesalers and retailers do not generally purchase liquor at the wholesale price as stated in the Guide, but are able to use the prices stated as a basis from which to bargain, or as a basis on which to found a discount.

2. There is a number of Glass's Dealers Guides. They are published monthly and three or four times each year. They are sold by subscription only and are bought mainly by new and used vehicle and boat dealers, insurance and finance companies, parts replacement companies, repairers, and by departments of government. One Guide deals with passenger vehicle values and others give values for commercial vehicles, motor cycles, boats and so on.

3. The motor vehicle Guide contains a fairly comprehensive list of vehicles first sold in Australia in and from 1976. Many of the vehicles are given identifying features, for example "fog lights and spoiler" or "on board computer". The used value for each vehicle is stated, a value being given for the trade price and another for the retail price. The values differ as between automatic and manual transmission models. In many cases, additional values are given for optional extras. There is also a section dealing with current prices for new model cars. These prices are stated to be "approximate and for comparative purposes only".

4. The values shown in Glass's Dealers Guides are based on prices which the publishers consider those prevailing in the trade. These Guides do not offer any goods for sale or specify any price as that offered by any particular trader for any specified goods. Rather, they indicate what the publishers of the Guides understand to be the prevailing level of prices for goods as described, in good condition.

5. In the notes set out in the opening pages of the Guides, it is said that the values listed do not apply to any particular vehicle or transaction, and therefore are not claimed to be final or absolute. Under the heading "Conditions of Supply", it is stated in the Guides that they are not intended to stipulate prices, and for this reason subscribers should accept the Guides as an indication only of current wholesale and retail prices.

6. In holding that all these publications were exempt and that none of them was a catalogue or price list, his Honour said:
   

"Thomson's Liquor Guide and Glass's Dealers Guides are guides to the value of goods. The listing of goods therein is incidental to this end, just as a telephone directory lists names and addresses of telephone subscribers as an incidental function of setting out telephone numbers. The essential character of both Thomson's Liquor Guide and Glass's Dealers Guides is that they are guides to value. Advice on values cannot be given unless the goods are described. But the essential character of the publications is not that they are a catalogue of goods but that they assist in the valuing and pricing of goods."

1. Speaking of Thomson's Liquor Guide, his Honour said:
   

"(T)he guide does not offer any goods for sale and it is not a list of the prices at which distributors in fact offer goods for sale. I think that, like Glass's Dealers Guides, this publication is a guide to value, a guide to the prices which retailers should pay for their stock and a guide to the prices at which they should sell their stock to the ultimate consumers. Thomson's Liquor Guide is, therefore, a guide to values, not a price list."

1. In ordinary parlance, a "price list" is a list of articles for sale, with a statement of the prices sought for them; of course, such prices may not be those at which purchasers agree to buy. The word "catalogue" has a wider meaning. The Oxford English Dictionary definition includes as a presently obsolete or archaic meaning "a list, register, or complete enumeration"; it goes on:
   

"Now usually distinguished from a mere list or enumeration, by systematic or methodical arrangement, alphabetical or other order, and often by the addition of brief particulars, descriptive, or aiding identification, indicative of locality, position, date, price, or the like."

1. A price list is thus a species of catalogue. But, as a list of articles for sale, a price list ordinarily will be directed at activities in trade or commerce, treating that term as embracing commercial dealings with new and used articles. Not all catalogues will have this character, as a matter of ordinary usage. But what is the proper interpretation of the term in Item 51? The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole: Cooper Brookes (Wollongong) Pty. Ltd. v Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason, Wilson JJ. Given the nature of the Sales Tax legislation, I conclude that for a document to be catalogued within the meaning of Item 51, it will be directed at activities in trade and commerce.

2. Thomson's Liquor Guide contains details of particular products which are available at the particular wholesale prices from particular distributors and wholesalers. It contains a price list. It is not to the point that the prices listed are not those at which the publisher of the Guide offers for sale the goods listed. The utility of the Guide lies in its value to subscribers as a compilation of the prices sought by a number of designated wholesalers or distributors. In my view, the use to which generally the Guide is put, i.e. as a basis from which to bargain or as a basis on which to found a discount, is consistent with its character as a price list. A document may be a price list in circumstances where the prices asked do not generally find favour with the retailers to whom they are addressed, and contracts are formed and bargains struck at other prices. Nor is the Guide any less a price list because it also contains suggestions as to what might be the retail prices for a range of liquor products purchased by retailers from the distributors and wholesalers.

3. The Glass's Guides are of a different character. They do not list items for sale with a statement of the prices sought for them by any particular persons. Even in the sections dealing with new models, the prices stated are put forward as being approximate and for comparative purposes only. The information as to used vehicles and boats is not directed to any particular vehicle or craft; the concern is with the representative value appropriate to a vehicle or craft of a particular age and type and in "average condition", an expression defined in the Guides with some particularity. These publications are not price lists.

4. I turn now to the classification "catalogue". It follows from what I have said that Thomson's Liquor Guide, being a price list, is also a catalogue in the sense required for Item 51. But what of the Glass's Guides? Are they catalogues?

5. In my view, in construing a term such as "catalogue" in a statutory provision such as Item 51, one should be wary of hermetic characterisation, just as much as one should be in construing legislation which may be supported by one or more of an enumerated set of legislative powers; cf. Murphyores Incorporated Pty. Ltd. v The Commonwealth of Australia (1976) 136 CLR 1 at 19-23; Alexandra Private Geriatric Hospital Pty. Ltd. v The Commonwealth (1987) 162 CLR 271 at 279.

6. The evidence indicates that Glass's Guides are compiled with effort and skill born of long experience (they have been published since 1952). There is systematic and methodical arrangement of information as to model and distinguishing characteristics with a statement of opinion as to value. Some subscribers find the Guides of assistance in model identification, so as, for example, to distinguish between different year models of the same type of vehicle. Others use the Guides as a starting point for their own valuations or to check that a valuation already made is not for too large or too small a sum.

1. The Glass's Guides are compilations of information in methodical or systematic arrangement with details pertaining to particular species of a genus of article (used vehicle, used boats) which are the objects of dealings in trade and commerce. The Guides are thus catalogues within the meaning of Item 51. It is, in my view, quite consistent with this characterisation that the catalogues have utility in trade and commerce as guides to the values of items in which there is a trade.

2. It follows that I would allow the appeals with costs, and would make the following declarations:
   

In Matter No. G1416 of 1988 The Court declares that Thomson's Liquor Guide, being exhibits AGH1, AGH2, AGH3, AGH4, AGH5 and AGH6 to the affidavit of Alan Gordon Hardcastle sworn 1 July 1988, was not exempt from sales tax pursuant to sub-s. 5 (1) of, and Item 51 (1) (c) of the First Schedule to, the Sales Tax (Exemptions and Classifications) Act 1935. In Matter No. G1417 of 1988 The Court declares that Glass's Dealers Guide, Passenger Vehicle Values 1976-1988, being exhibit OGP1, Glass's Dealers Guide, Caravan and Campervan Values 1976-1988, being exhibit OGP2, the Glass's Dealers Guide, Marine Values 1976-1988, being exhibit OGP3, Glass's Dealers Guide, Motor Cycle Values 1976-1988, being exhibit OGP4, Glass's Dealers Guide, Older Cars 1960-1975, being exhibit OGP5 to the affidavit of Owen George Preston sworn 30 June 1988, were not exempt from sales tax pursuant to sub-s. 5 (1) of, and Item 51 (1) (c) of the First Schedule to, the Sales Tax (Exemptions and Classifications) Act 1935. In Matter No. G1418 of 1988 The Court declares that Glass's Dealers Guide, Commercial Vehicle Values 1976-1988, being exhibit OGP1A to the affidavit of Owen George Preston sworn 30 June 1988, was not exempt from sales tax pursuant to sub-s. 5 (1) of, and Item 51 (1) (c) of the First Schedule to, the Sales Tax (Exemptions and Classifications) Act 1935.