Freight Rail Corporation v Chief Executive Officer of Customs
[2000] FCA 1796
•15 DECEMBER 2000
FEDERAL COURT OF AUSTRALIA
Freight Rail Corporation v Chief Executive Officer of Customs [2000] FCA 1796
CUSTOMS AND EXCISE – Diesel fuel rebate – mining operations – coal mining – coal subjected to process of blending and magnetic removal of contaminates before shipping – Administrative Appeal Tribunal found that process was not an integral part of “recovery” and not “beneficiation” – whether Tribunal erred in law by applying the wrong test for “recovery” or “beneficiation”.
EVIDENCE – admissibility – construction of purported ordinary English word – whether construction of ordinary English word controlled by expert evidence.
WORDS AND PHRASES – “beneficiation” – “recovery”
Income Tax Assessment Act 1936 (Cth) ss 164(7), 164(7A), 164(7B)
Customs v Tasmanian Electro-Metallurgical Co Pty Limited (1997) 76 FCR 476 referred to
Chief Executive Officer of Customs v West Australian Government Railways Commission (1999) FCR 473 referred to
Australian Native Landscapes Pty Limited v Collector of Customs (1997) 24 AAR 353 referred to
Pepsi Seven-Up Bottlers Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 considered
Abbott Point Bulk Coal Pty Ltd v Collector of Customs (1992) 35 FCR 371 discussed
Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108 discussed
Collector of Customs v BHP Australia Coal Limited (1994) 53 FCR 499 discussed
State Rail Authority (NSW) v Collector of Customs (1991) 33 FCR 211 referred to
North Australian Cement Ltd v Commissioner of Taxation (1969) 119 CLR 353 referred to
NSW Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509 referred to
Commissioner of Taxation v ICI Australia Ltd (1972) 127 CLR 529 discussed
Commissioner of Taxation v Broken Hill South Limited (1941) 65 CLR 150 referred to
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 discussedFREIGHT RAIL CORPORATION AND ANOTHER v
CHIEF EXECUTIVE OFFICER OF CUSTOMSN 305 of 2000
HILL J
15 DECEMBER 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 305 OF 2000
BETWEEN:
FREIGHT RAIL CORPORATION
FIRST APPLICANTSTATE RAIL AUTHORITY OF NEW SOUTH WALES
SECOND APPLICANTAND:
CHIEF EXECUTIVE OFFICER OF CUSTOMS
RESPONDENTJUDGE:
HILL J
DATE OF ORDER:
15 DECEMBER 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicants pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 305 OF 2000
BETWEEN:
FREIGHT RAIL CORPORATION
FIRST APPLICANTSTATE RAIL AUTHORITY OF NEW SOUTH WALES
SECOND APPLICANTAND:
CHIEF EXECUTIVE OFFICER OF CUSTOMS
RESPONDENT
JUDGE:
HILL J
DATE:
15 DECEMBER 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Before the Court is an appeal by the applicants, Freight Rail Corporation (“Freight Rail”) and the State Rail Authority of New South Wales (“State Rail”), against a decision of a Deputy President of the Administrative Appeals Tribunal refusing claims for diesel rebate with respect to the period extending from 17 December 1994 to 15 November 1997. The appeal, so called, is an application in the original jurisdiction of this Court and is, by force of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”), an appeal on, that is to say limited to, a question of law.
THE FACTS AS FOUND BY THE TRIBUNAL
It does not seem that the underlying facts were in dispute in the Tribunal. The summary which follows, and it is only a summary, proceeds on the basis that various quotations of evidence in the Tribunal’s reasons were set out because the learned Deputy President accepted their correctness. It was not suggested otherwise.
Prior to 1 July 1996 State Rail operated a rail service between various coal mines in the Hunter Valley region to the coal handling facilities at the Port of Newcastle owned and operated by Port Waratah Coal Services Limited (“PWCS”). From 1 July 1996 the same service was operated by State Rail. As the Tribunal observed, nothing turns on the different identities of the claimants.
The claims in dispute concern two periods, the first from 17 December 1994 to 30 June 1996 by State Rail and the second for the period 1 July 1996 and 15 November 1997 by Freight Rail. As will later be seen a change in the law was effected from 1 August 1997 shortly before the end of the second claim period so that, if there be a distinction between the law prior to the change and the law after, a question of apportionment could become relevant.
The Tribunal found the export market to be the dominant market for coal production in New South Wales, that market being in a state of expansion in contrast to the domestic market which remained relatively static.
The Tribunal accepted that coal, whether removed by open cut or extracted from underground mines, was stockpiled, at or near the mine site, ready for treatment by a coal preparation plant. That plant was designed to wash the coal for purposes of removing as much of the inorganic mineral matter as was physically and economically viable, generally by the use of specific gravity techniques to wash the raw coal. Such washing process, it is common ground, represented a process of beneficiation.
The coal which is stacked at or near the mine is stacked in accordance with the various grades identified. Some of the coal in the stockpile may, without more, satisfy purchasers’ requirements, particularly having regard to ash content. Generally speaking, if it does, the coal is freighted directly to the coal handling facility and loaded on the vessel without any further attention being given to it except perhaps the magnetic treatment later referred to. Purchasers specify particular ash content. In order to satisfy an order with a particular ash content (say an ash content of more than 8% which is a higher quality coal) a process of blending coal is undergone so that coal with 8% ash may be blended with coal with 14% ash coal to make a mathematical average of 9.5% ash. This process of blending takes place at the Port of Newcastle.
A second activity also occurs with the coal at Newcastle. There is in fact operated a magnet during transportation of the coal within the facility to detect and remove foreign metal. The Tribunal found that, in the course of mining and possibly in the course of transport all sorts of extraneous objects may fall into the coal. These may include broken portions of loaders, a fire extinguisher, lumps of concrete or general scrap or tramp metal. Unless that material is removed, facilities in the ultimate purchaser’s steel mill or power station could be at risk of damage.
The final product is then loaded onto a waiting vessel.
THE LEGISLATIVE FRAMEWORK
It has already been noted that during the period in question a change in the law occurred. From 17 December 1994 until 1 August 1997, the major part of the claim period, the rebate was dependent upon whether an applicant was carrying on mining operations as defined. The relevant definition in s 164(7) is here set out:
“mining operations means:
(a)exploration, prospecting, or mining for minerals, or the removal of overburden and other activities undertaken in the preparation of a site to enable mining for minerals to commence; or
(b)the dressing or beneficiation of minerals, or ores bearing minerals, as an integral part of operations for their recovery;
and includes:
(c)if minerals, or ores bearing minerals, are dressed or beneficiated at a place other than the mining site as an integral part of operations for their recovery:
(i)the transporting of the minerals or ores from the mining site to that place; and
(ii)the return journey from that place to the mining site of the vehicles or equipment used in transporting the minerals or ores, if that journey is for the purpose of later carrying out the mining operation referred to in subparagraph (i) or for the backloading of raw materials or consumables for use in a mining operation referred to in paragraph (a) or (b); or ...”
The definition was changed with effect from 1 August 1997 so as to provide:
“mining operations means:
(a)exploration or prospecting for minerals, or the removal of overburden and other activities undertaken in the preparation of a site to enable mining for minerals to commence; or
(b)operations for the recovery of minerals, being:
(i)mining for those minerals including the recovery of salts by evaporation; or
(ii)the beneficiation of those minerals, or of ores bearing those minerals;
Note:The meaning of paragraph (b) is affected by subsections (7A).
(c)if minerals, or ores bearing minerals, are beneficiated at a place other than the mining site as an integral part of operations for their recovery:
(i)the journey undertaken for the purpose of transporting the minerals or ores from the mining site to that place except to the extent (if any) that the journey involves transportation by sea; and
(ii)the return journey of a vehicle, a locomotive or other equipment from that place to the mining site or any part of that journey if it is undertaken for the purpose of repeating a journey referred to in subparagraph (i) or for the backloading of raw materials or consumables for use in a mining operation referred to in paragraph (a) or (b); or ...”
Coinciding with the change of definition three subsections were added affecting the meaning of “operations for the recovery of minerals”. Two of those subsections, (7A) and (7C), are relevant to the issues in the present appeal. Those subsections provide as follows:
“(7A) For the purposes of the definition of mining operations, operations for the recovery of a mineral cease:
(a) when the process of beneficiation ceases; or
(b)in the absence of a beneficiation process – when the mineral, or ores bearing the mineral:
(i)are first stockpiled or otherwise stored at the place at which the mining operation is carried on; or
(ii)if subparagraph (i) does not apply – are removed from the ore body or deposit.
...
(7C) In determining whether a particular process to which a mineral, or ores bearing a mineral, are subjected constitutes beneficiation of that mineral or those ores, regard is to be had to the nature of the technical process involved but no regard is to be had to any market considerations that might affect the decision to subject that mineral or those ores to that process.”
THE TRIBUNAL’S DECISION
The issue which arose for decision by the Tribunal, at least in the period prior to the amendment of the definition of mining operations was whether the activities at the Port of Newcastle constituted the beneficiation of minerals, or ores bearing minerals, as an integral part of operations for their recovery. There was no dispute that coal as such was a mineral or that the applicants were transporting it from the site where it was actually mined to the port.
In this period two matters attracted the Tribunal’s consideration. The first was whether the blending operations and the magnetic removal of contaminates such as scrap metal and concrete which took place at the port qualified as beneficiation and, if so, whether that beneficiation was integral to the recovery of coal within the meaning given by the definition.
There is a dispute, which I shall refer to in more detail later, that the word beneficiation may be either an ordinary English word or alternatively a technical term used only in the mining industry. That was not a dispute which the Tribunal appears to have resolved. However it should be noted that at the hearing in the Tribunal there was objection to experts giving evidence as to the meaning of the word “beneficiation” on the ground that it was an ordinary English word. To the extent that it is an ordinary English word, the Oxford English Dictionary demonstrates that it has the meaning “to benefit or derive profit from a mine or to reduce ores”. The word appears also in the Macquarie Dictionary, 2nd Ed, where it is defined as:
“1.the dressing or processing of ores to regulate the size of the product, remove unwanted constituents and improve the quality, purity or assay grade.
2.concentration or other preparation of ore for smelting by drying floatation or magnetic separation.”
The learned Deputy President said:
“Whether or not the word is an ordinary English word, however, it is permissible to consider expert evidence in explication of its meaning, not to attribute any special or trade meaning to the word but to understand how the word is ordinarily understood. This also applies to the word ‘recovery’.”
In support of this proposition his Honour quoted a decision of Merkel J in Customs v Tasmanian Electro-Metallurgical Co Pty Limited (1997) 76 FCR 476 at 485, followed by French J in Chief Executive Officer of Customs v West Australian Government Railways Commission (1999) FCR 473; Australian Native Landscapes Pty Limited v Collector of Customs (1997) 24 AAR 353 at 359-360 per Sackville J. The applicants had relied upon a decision of mine in Pepsi Seven-Up Bottlers Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 at 296-297.
The learned Deputy President accepted the evidence of Mr Edwards as being of assistance in affirming the ordinary meaning both of “beneficiation” and “recovery”. That evidence also referred to technical dictionaries and learned papers. The effect of the evidence was that “beneficiate” and “beneficiation” did not ever refer to the blending of cleaned coal. Rather the word, at least in the mining industry to which it is in any event confined, referred to the separation and removal of impurities by cleaning. His Honour also accepted that beneficiation could not extend to the removal of unwanted jetsam by the use of magnets. Rather, beneficiation was the removal of naturally occurring waste matter, not matter which might at some stage in the process including the process of transportation fall into the ore.
In a passage that was criticised during the course of the appeal, the Deputy President said:
“The statement of Mr Edwards establishes that beneficiation refers to this process and establishes that the blending of coal (whether or not to meet contract specifications) is not the beneficiation of coal. Mr Edwards’ evidence was unchallenged, except in the legal sense of being inadmissible (or, in Tribunal terms, irrelevant) in ascertaining the ordinary meaning of the expressions ‘beneficiation’ and ‘recovery’ ... These meanings cannot extend either to coal blending or to rubbish removal.”
As already noted Mr Edwards’ evidence also extended to the meaning of “recovery” as used in ordinary English and as understood in the trade, there being no difference in meaning. Mr Edwards’ conclusions on the basis of his experience in the industry were that the operations at the port clearly did not involve any operations for the recovery of coal in the sense of extraction and separation. Those operations were carried out at the mining site. That evidence was accepted by the learned Deputy President as a correct statement of the ordinary current usage of the relevant words in the relevant trade.
It was the submission on behalf of the applicants in the Tribunal that recovery could not be regarded as having been completed until the end product of the mining operation had been sold. That submission, at least in that form, was rejected by the learned Deputy President largely on the view that recovery would then have to include both marketing and sales.
The learned Deputy President’s reasons also concern what he saw as inconsistencies between the decisions of two full Courts of this Court, differently constituted in Abbott Point Bulk Coal Pty Ltd v Collector of Customs (1992) 35 FCR 371 at 379 and Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108. It will be necessary to return to these decisions shortly. However, the learned Deputy President expressed himself, as he was, to be bound by the terms of both decisions albeit that he regarded the present case as essentially falling within the decision in Abbott Point: cf Collector of Customs v BHP Australia Coal Limited (1994) 53 FCR 499, a decision which followed Abbott Point.
Finally, the Tribunal concluded that whatever the case the applicants may have had prior to the amendments to the law their submissions could not succeed thereafter and in the result the Tribunal affirmed the decisions rejecting the grant of the rebate.
It is from these decisions that the applicants now appeal to this Court.
THE QUESTIONS OF LAW
Because this Court’s jurisdiction is limited to a question of law, I specifically required senior counsel for the applicants to formulate what questions of law arose in the case. The formulation given was as follows:
“1.The Deputy President applied the wrong test in ascertaining whether the activities in Newcastle constituted ‘recovery’ by regarding itself as not bound by Dampier Salt.
2.The learned Deputy President permitted the evidence of Mr Edwards, the expert in the mining industry, to control the meaning of the word ‘beneficiation’.”
There is some difficulty in the first of these two formulations having regard to the fact that the learned Deputy President did not in fact suggest that he was not bound by Dampier Salt. Counsel for the Chief Executive Officer of Customs submitted that no question of law arose in the circumstances of the case so that the Court had no jurisdiction to determine the matter.
Ultimately I do not find it necessary to determine whether indeed the two matters formulated by senior counsel for the applicants did constitute errors of law. I am prepared to assume they each raised a question of law founding this Court’s jurisdiction and to deal with the matter more broadly by considering whether in the respects suggested the Tribunal in fact did make some legal error.
THE SUGGESTED INCONSISTENCY BETWEEN ABBOTT POINT AND DAMPIER SALT
Abbott Point, like the present case, was concerned with the recovery of coal. At issue was the question whether the blending that took place away from the actual mine site amounted to operations for the recovery of minerals. A majority of the Court said at 378-379:
“Whether an activity falls within the definition of ‘mining operations’ as defined in s 164(7) of the Customs Act is a question of fact. So too is the question of when recovery is complete. In each case a commonsense and commercial approach has to be taken to the question having regard to the evident purpose of the legislation, to make rebates available to promote the exploitation of mineral deposits in Australia. However, a point is reached where the mineral has been recovered and what is done with it thereafter is the use or processing of it for its better use as a mineral.
...
The process of recovery includes, in our view, those steps which are taken by a miner before sale, by whatever process, to remove the mineral from that in which it is embedded or with which it is intermixed. Such a process comprehends the refining of minerals or ore to remove impurities naturally occurring in the material as it has been mined. Once the process of separation or refining has been completed, to subject the mineral product to a process or procedure designed purely to facilitate its better use as so separated or refined or to render it more readily or advantageously marketable is not in our view part of the recovery process.
In the instant case the coal, as coal, was recovered when it was washed and stockpiled at the mine sites. No further step was taken to separate the coal from foreign material adhering to it or intermixed with it for the purpose of improving the product by separation. What occurred thereafter was an operation designed to place clean coal on board ships in such proportions as to create a combined product with an ash content of 15 per cent, or whatever other content was necessary, to satisfy requirements of a particular buyer. It was a process designed to best utilise the lower grade coal as coal.”
French J who delivered a separate judgment was of the view that recovery did not conclude until the process of economic enhancement was completed. It did not cease when a vendible product was produced. His Honour was of the view that whatever meaning was given to the word “recovery” it did not involve the notion of separation of material and it had, as the Tribunal found, ceased by the time the coal was delivered to Abbott Point. His Honour concluded also that the blending could not be regarded as an integral part of the recovery operations.
Dampier Salt, as its name suggests, concerned salt mining rather than coal mining. In the particular circumstances of that case, it had been found that while there was a very minuscule market for salt for use in swimming pools, real commercial operations required further drying to permit the salt to be sold in sufficient quantities. It became saleable only as bulk seaborne trade salt.
After referring to State Rail Authority (NSW) v Collector of Customs (1991) 33 FCR 211 at 215, the full Court noted that there may be difficulties in defining when the process of recovery terminates on the one hand and on the other when some other process, be that called treatment or preparation for marketing, commences. Their Honours continued at 115:
“There are three potential approaches which can be adopted. The first approach is that mining operations (ie in the present case, salt production) will cease when there has been produced something which is recognisable as the mineral, here common salt, even if there be no market for the substance produced in that form and irrespective of the market in which the claimant for a rebate operates. The second is that the mining operations will come to an end as soon as there has been produced something (being a mineral) for which there is a market (ie in the present case, salt) irrespective of whether the person claiming the rebate operates in the market. The third approach is that the mining operation will only cease when there has been produced by the claimant to the rebate minerals (ie in the present case, salt) which it can market in the market in which it operates.”
It was the third of these approaches that was adopted by the Court (see also Collector of Customs v BHP Australia Coal Ltd (1994) 53 FCR 499 where it was said that the mining operations extended to the recovery of the relevant mineral to be mined and that mining operations should not be taken to be concluded until at the very least there came into existence a mineral which was “commercially saleable”).
It must be said that there is nothing in Dampier Salt which casts any doubt specifically on the conclusions in Abbott Point. Indeed Abbott Point was referred to and discussed in the judgment without any suggestion that it had been wrongly decided.
In the course of the reasons in Dampier Salt six conclusions were expressed by the full Court at 120 which were accepted by the learned Deputy President and formed part of his reasons. These conclusions may be stated as follows:
“1.The point where a mining operation starts and finishes will be a question of fact to be decided in each case. However, the Court should not adopt a narrow view of the extent of ‘mining operations’ so as to frustrate the legislative intent of providing a concession to the mining industry.
2.Relevant to this factual conclusion will be the ascertainment of the object of the particular taxpayer’s operations.
3.Generally the mining operation will continue until there has been produced that which is the object of the particular taxpayer’s operation of mining.
4.The mining operation will not necessarily be complete when a mineral has been extracted from ore, or where salt is produced, immediately there has been a recognisable salt product, be that brine or crystallised salt. It will be necessary that the mineral (salt) produced be saleable.
5.The mere fact that a mineral is saleable will not necessarily be determinative, if the production of that mineral at that place by that taxpayer would be uneconomic. Perhaps everything can be said to be saleable for a price, but what it necessary is that the mineral in question be economically saleable at least by a person in the position of the particular taxpayer.
6.Activities directed to improving that which is extracted, for example pelletising, may fall outside the ambit of the ‘mining operation’. However, there may form part of the mining operation where the activity is closely associated with the actual extraction of the mineral. Normally, this close association may be indicated by physical proximity, but lack of physical proximity will not necessitate the conclusion that the mining operation has concluded: Northwest Iron. The degree of integration of the activity with the actual mining process will, obviously, thus be relevant.”
For my part I see little inconsistency at all between the two decisions, other than the factual matters upon which each was decided. Such differences as there are rather turn more upon the nature of the industry involved than upon matters relevant to the present case.
As BHP Australia Coal Ltd itself observed, a practical commercial approach is to be adopted so that mining operations should not be taken to conclude until there came into existence a mineral which was commercially saleable. That is not a proposition in any way ultimately at issue in Dampier Salt. Indeed it was likewise accepted.
In the present case the Tribunal implicitly found that notwithstanding that coal was sold having regard to matters such as ash content, so that blending was the appropriate economic way of achieving the commercial goal of sale, mere mixing to further such goal was not an integral part of the mining operation. In the result the diesel rebate was refused.
Leaving aside the issue of Mr Edwards’ evidence and the use made of it, I have no doubt that the operations at Newcastle, involving mere mixing (albeit that that was done to obtain the required percentage ash content or other percentage contents required by purchasers), were not part of the process of recovery. There is nothing in the judgment of Dampier Salt which requires a conclusion to the contrary. Dampier Salt undoubtedly held that the mining operations continued until the process of washing and drying of the salt necessary to achieve an economically saleable product was completed but it does not follow from that that the process of recovery of coal would be incomplete when the coal was extracted and cleaned though not blended to attain the necessary ash content. Likewise a process of extracting impurities which have occurred in the course of the process including transportation has nothing to do with recovery.
It was open to the Tribunal to form the view it did that neither blending nor magnetisation were part of the recovery process. If it matters, that would be a conclusion which I too would make. Certainly in arriving at it, no error of law arose.
THE USE MADE OF MR EDWARDS’ EVIDENCE
As already noted, subject to objection, Mr Edwards gave evidence of the meaning of the words “recovery” and “beneficiation” as they applied in the mining industry. The submission of the applicants before me was both that such evidence was irrelevant (in a court context, inadmissible) and in any event should not control the meaning of the words to be defined. Reliance was placed upon comments made by me in Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation 95 ATC 4746 at 4752 where I said:
“It is a well established principle of the common law that the courts will refuse to admit evidence for the purpose of interpreting a word used in a statute (or for that matter a document) in accordance with its ordinary English meaning. Thus, in a passage often quoted, Jordan CJ in Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 at 137 said:
‘The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law; ... The question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence ... although evidence is receivable as to the meaning of technical terms ... and the meaning of a technical legal term is a question of law; ...’
Examples of cases where courts have refused to admit such evidence are to be found in Bendixen v Coleman (1943) 68 CLR 401; Scott v Moses (1957) 75 NSW WN 101; Brisbane City Council v AG of Queensland (1978) 19 ALR 681; and FC of T v Hamersley Iron Pty Ltd 80 ATC 4509; (1980) 33 ALR 251.
However, it is equally well established that evidence may be led as to the meaning of a word used in a statute where that word is used in a trade or technical sense and that usage differs from the ordinary English meaning of the word: Marquis Camden v Inland Revenue Commrs [1914] 1 KB 641 at 650 and Herbert Adams at ATD 33; CLR 227.”
Two qualifications however need to be made in the present context. The first is that the Tribunal is not bound by the rules of evidence at all. It is entitled (see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth)) to “inform itself on any matter in such a manner as it thinks appropriate”. Where a word such as “beneficiation” is difficult to understand without reference to the industry in which it is used, it can hardly be thought inappropriate for the Tribunal to inform itself of usage in that industry. That, of course, is what the Tribunal did.
There is in any event another matter, applicable to courts, to which reference should be made. Mining operations have given rise to many concessions, not the least of which have been concessions contained in Division 10 of the Income Tax Assessment Act 1936 (Cth). These concessions have required from time to time consideration by courts of what constituted mining operations, treatment, quarrying and matters of that kind. The present legislation indeed was obviously derived, at least in part, from Division 10. While it is true that in many of these cases no reference is made in the judgments of evidence going to the meaning of words in the industry, it is also true that in a number of the cases decided under Division 10 evidence of this kind has been admitted. For example, when the question of whether open cut extraction of limestone for cement production was mining, expert evidence was permitted to be adduced on the question whether open cut extraction was mining: North Australian Cement Ltd v Commissioner of Taxation (1969) 119 CLR 353. That evidence was not controlling. Indeed some of the evidence was inconsistent with the authority of NSW Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509. Much later when the question arose in Commissioner of Taxation v ICI Australia Ltd (1972) 127 CLR 529 the report of the decision of Walsh J at 538 notes evidence from a Mr Hancock as to his understanding of the meaning of the word “mining”. Walsh J noted at the same page that the evidence of the experts called in the case was of assistance in arriving at the meaning used. At 544 his Honour turned to consider the proper use to be made of evidence of experts and their conclusion as to their usage of the words in that case under consideration. His Honour said at 544:
“I have no doubt that such evidence and conclusions may be taken into account. I think that they may be of much importance, especially in the situation where there has not been in fact any occasion for a widespread adoption or development by the general public of a terminology to describe the particular processes under review. At the same time I think that use may be properly made of such knowledge as is available to the Court concerning more general usage.”
In Commissioner of Taxation v Broken Hill South Limited (1941) 65 CLR 150 at 160 Williams J referred to the “the vernacular of mining men”. In North Australian Cement Limited v Commissioner of Taxation (1969) 119 CLR 353 at 362, Menzies J referred to “an informed general usage”. But those statements do not suggest to me that the Court is restricted to a consideration of the usage adopted by mining men. Indeed it seems plain from the judgment that Menzies J did not think it was so restricted.
No doubt the evidence before Menzies J was not necessarily conclusive of the issue. But the evidence in the particular case showed an extension of the primary meaning of the term “mine” beyond underground workings so as to include some surface workings. On appeal there was no criticism of his Honour’s use of the evidence. If anything the judgment of Gibbs J was supportive. On relevant matters the appeal was dismissed.
With respect, the admission of such evidence is hardly surprising. Where a word such as “mining”, albeit an ordinary English word, is to be considered to determine whether a particular activity falls within it, it would be absurd to disregard the meaning of the word as operative in the mining industry. It may be right that evidence of this kind is not controlling. But it is also right, particularly where the word itself is used in a particular industry, to know what the connotation of the word is within the industry to which the statute is directed.
Not surprisingly, subsequent decisions have taken a similar view and some of these decisions were referred to by the learned Deputy President in his reasons. Thus in Chief Executive Officer of Customs v Tasmanian Electro Metallurgical Co Pty Ltd (1997) 76 FCR 476 Merkel J noted that the AAT in that case had been assisted by the evidence of persons in the mining or metallurgical industry to determine the ordinary meaning of the words in the context of which they were used.
A similar view was taken by French J in Chief Executive Officer of Customs v Western Australian Government Railways Commission (1999) 94 FCR 473 where the issue under consideration was whether particular processes were able to be characterised as being “in beneficiation”: see too Sackville J in Australian Native Landscapes at 359-60.
In a somewhat different context the matter was discussed in the High Court in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389. The question at issue in that case was the meaning of a phrase “silver dye bleach reversal process”. There was a question as to whether the whole phrase or parts of it were indeed used in a technical sense. At first instance evidence was accepted by the learned primary Judge (Jenkinson J) of the meaning of the phrase in the trade to which it related, namely photographic films. An argument put by the respondent in the appeal was that the words were ordinary English words and that no evidence concerning them could be accepted. The High Court said of the argument at 400: “Agfa’s argument required the Tribunal to deny itself any recourse to common-sense in construing the expression ‘silver dye bleach reversal process’ ”. The discussion in the case is however rather subject to the problem that at least some of the words appeared to have a trade meaning.
What these cases demonstrate is that where a particular phrase, even where it has no trade meaning, is used in a particular context some reference can be had to use of the words in the industry to which the phrase relates to assist in understanding that context.
The criticism of the applicants in the present case is that the learned Deputy President regarded the views of the witness as controlling. With respect and notwithstanding a comment that that evidence established that beneficiation did not include blending can hardly be put against comments made four paragraphs earlier that the meaning of words was not to be exhaustively determined by expert testimony. In so saying one may assume that the Tribunal was not referring to the class of case where the word is used in the trade without recourse to the meaning in the trade, the meaning of a word such as beneficiation might well be unintelligible.
The learned Deputy President did not decide whether the word “beneficiation” was or was not an ordinary English word on the one hand or trade usage having, if necessary, a different meaning to ordinary English on the other. There is a controversy about this matter as has already been noted. Justice Davies when sitting as President of a three person tribunal in the Administrative Appeals Tribunal in Re Western Mining Corporation Limited and the Collector of Customs (unreported, 30 March 1984) expressed the view that “beneficiation” was not a word of ordinary parlance but rather a word with trade or technical signification. If that view is correct, then of course evidence of persons in the industry as to the trade meaning would be controlling. French J in Abbott Point at 390 referred to the word “beneficiation” as being economic in concept. His Honour later, in Western Australian Government Railways Commission at 485 expressed the view that the words “beneficiate” and “beneficiation” were ordinary English words quoting the dictionary definitions earlier set out. His Honour quoted in support the joint judgment of Cooper and Ryan JJ in Abbott Point. RD Nicholson J, on the other hand, thought that the question whether “beneficiation” had a technical meaning was not really an issue in the appeal. Kiefel J, the remaining member of the Court, expressed no view on the question. The majority in Abbott Point were of the view that the word “beneficiation” was not a term in ordinary English usage. A similar view was taken by another full Court in BHP Australia Coal Limited.
The learned Deputy President found no reason to determine this controversy. Nor do I. It must be said that it does not follow that because a word is in the dictionary its meaning is not a technical trade meaning. Nor does it follow that the word “beneficiation” can usefully be understood by reference to the dictionary definitions of it which I have set out and which do no more really than give the etymological foundation for the word.
In my view the Tribunal was entitled to inform itself by evidence, if it wished, as to the usage of the expression “beneficiation” and the expression “recovery”, whether or not they be ordinary English words, at least to explain the context in which they were used, namely the context of mining. Having done so, it was open to the Deputy President to reach the conclusion he did and, in consequence, there is no error of law disclosed. Particularly, it is clear from a reading of the whole of the judgment, that the Tribunal did not allow the expert testimony to be controlling of his decision.
In my view the application should be dismissed with costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate:
Dated: 15 December 2000
Counsel for the Applicant: D H Bloom QC, B J Sullivan SC Solicitor for the Applicant: Andersen Legal Counsel for the Respondent: A Robertson SC, S Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 November 2000 Date of Judgment: 15 December 2000