Mayo Hardware Pty Ltd and Comptroller-General of Customs - [2018] AATA 4205

Mayo Hardware Pty Ltd and Comptroller-General of Customs [2018] AATA 4205 (9 November 2018)
Division:GENERAL DIVISION
File Numbers: 2018/0241; 2018/1209
Re:Mayo Hardware Pty Ltd
APPLICANT

AndComptroller-General of Customs
RESPONDENT

DECISION
Tribunal:Deputy President Rayment QC
Date:9 November 2018
Place:Sydney

The reviewable decision is set aside and the matter is remitted to the respondent with a direction that the goods are entitled to be admitted free of duty under TCO 1132500.
.....................................[SGD]...................................
Deputy President Rayment QC
CATCHWORDS
CUSTOMS – tariff classification – disposable aluminium trays – whether goods are entitled to Tariff Concession Order – definition of tableware – ordinary sense of the word – subject goods found to be tableware – reviewable decision set aside and remitted
LEGISLATION
Customs Tariff Act 1995
CASES
Becker Vale Pty Ltd v Chief Executive Officer of Customs [2015] FCA 525
Brand Developers Aust Pty Ltd v Chief Executive Officer of Customs [2015] AATA 215
Comptroller-General of Customs v Sulo MGB Australia Pty Ltd [2017] FCA 315
New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509
SECONDARY MATERIALS
D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014)
Hodder & Stoughton, Chambers Online Dictionary
Macmillan Publishers Australia, Macquarie Online Dictionary
Oxford University Press, Oxford Online Dictionary
REASONS FOR DECISION
Deputy President Rayment QC
9 November 2018

This review raises the question whether aluminium trays which are disposable fall within the ordinary English meaning of the word “tableware”.
The parties agree that the appropriate tariff classification of the goods is subheading 7615.10.00 of Schedule 3 of the Customs Tariff Act 1995 but differ as to whether tariff concession order 1132500, which is keyed to subheading 7615.10.00, applies, so that the goods when imported were entitled to be entered free of duty. That must be because they are “table, kitchen or other household articles” of aluminium. Heading 7615 is in the following terms:
7615 TABLE, KITCHEN OR OTHER HOUSEHOLD ARTICLES AND PARTS THEREOF, OF ALUMINIUM; POT SCOURERS AND SCOURING OR POLISHING PADS, GLOVES AND THE LIKE, OF ALUMINIUM; SANITARY WARE AND PARTS THEREOF, OF ALUMINIUM:
Subheading 7615.10.00 is in the following terms:
Table, kitchen or other household articles and parts thereof; pot scourers and scouring or polishing pads, gloves and the like
TCO 1132500 is expressed as follows:
TABLEWARE, aluminium, being ANY of the following:
(a)baskets;
(b)bottles;
(c)bowls;
(d)card holders;
(e)cruets;
(f)cups;
(g)decanters;
(h)dishes;
(i)drip stoppers;
(j)egg cups;
(k)fondues;
(l)food or cake domes;
(m)non electric food warmers;
(n)ice buckets;
(o)jugs;
(p)knife or chopstick rests;
(q)mugs;
(r)mustard pots;
(s)napkin and/or place card stands;
(t)non electric coffee pots or percolators;
(u)plates;
(v)plate stands;
(w)platters or serving plates;
(x)salad bowls;
(y)salt cellars;
(z)salt or pepper shakers;
(aa)sauce boats;
(ab)saucers;
(ac)serviette or napkin rings;
(ad)tea pot stands or cake stands;
(ae)sugar basins or shakers;
(af)table cloth clips;
(ag)table place mats or coasters;
(ah)sugar bowls and/or milk jugs and/or trays;
(ai)tea infusers or tea honey sticks or tea dishes;
(aj)tea pots;
(ak)tea strainers;
(al)toast racks;
(am)trays;
(an)trivets;
(ao)tumblers;
(ap)tureens;
(aq)wine cooling buckets;
(ar)wine pouring cradles;
(as)wine bottle stands
Aluminium trays are expressly mentioned in the TCO, and the parties are agreed that, if the goods are tableware, they fall within the language of the TCO.
Samples of the goods, as imported, were tendered. The trays are typically described as “great for roasting and serving”. They may be used for cooking on a barbecue or in an oven, protecting oven or barbecue fittings from grease, and then for serving either at an indoor or outdoor table, or elsewhere, on to plates. The trays are light, and intended to be disposable after use.
In Becker Vale Pty Ltd v Chief Executive Officer of Customs [2015] FCA 525 at [56]-[64], Yates J discussed authorities in this Tribunal about tariff concession orders. His Honour noted that neither party suggested that such authorities should not be followed, and his Honour did so for the purpose of his discussion.
The authorities (including Deputy President Forgie’s reasons in Brand Developers Aust Pty Ltd v Chief Executive Officer of Customs [2015] AATA 215 at [29]-[44]), hold that in order to fall within a tariff concession order, the goods must “precisely” meet the description of that order. Those authorities, including the ones mentioned by DP Forgie at [34], are applicable to the TCO in this proceeding.
The TCO in issue before Yates J used the word “comprising ALL of the following” and his Honour preferred a construction of those words which made the word “comprising” an exhaustive, rather than an inclusive term.
The present TCO uses the word “being” and that part of the reasons of Yates J is inapplicable to the present TCO.
In order for an article to constitute “tableware”, it must precisely fit within the meaning of that word and the meaning of that word should not, in my opinion, be ascertained by looking at the terms of the enumeration which follows the word “being”. One reason for that view is that some of the items in the enumeration are things only some of which seem to be “tableware” in the ordinary sense of that word. Thus, an aluminium bottle containing pills or other medicine would not be “tableware” in my opinion.
The Macquarie Online Dictionary defines “tableware” as follows:
dishes, utensils, etc., used at table or meals.
The Oxford Online Dictionary defines “tableware” as:
Crockery, cutlery, and glassware used for serving and eating meals at a table.
One submission of the respondent is that the word “tableware” does not include a disposable, single use item. There is something to be said for this. If one ignores the requirement for aluminium, one might well hesitate to describe disposable knives and forks, and disposable (cardboard) plates as “tableware”, although they could be described as “picnic utensils”. The hesitation I have described is no doubt because tableware is usually or often, washable and re-usable.
Another submission of the respondent was that if goods have multiple uses, classification ought to be by their predominant use. Comptroller-General of Customs v Sulo MGB Australia Pty Ltd [2017] FCA 315 was cited as recent authority for that proposition. It is true that Moshinsky J determined in that case that the expression ”vehicles” in the tariff referred to something constructed for the primary purpose of transporting goods or people. However that conclusion was not reached as a result of any application of the principle for which the respondent contends, but rather upon other grounds. Many of the goods listed in the enumeration have uses other than at a table, and it is hard to read the TCO as limited to goods having one predominant use. The “predominant use” of a cup and saucer, or of a bottle, may not be at a table, if one takes into account individual users. Serving is one regular use of the goods in issue and I would not apply a “predominant use” test to exclude such a use.
Would an aluminium tray (for example, a re-usable tray) placed on a table fall outside paragraph (am) of the enumeration which forms part of the TCO description, and cease to be tableware in the ordinary sense, merely because the tray had also been used for food preparation, including by being put in an oven, before being put on or near a table for serving purposes?
Would a ceramic (non-disposable) ceramic tray used to cook meats and then to serve at a table be regarded as “tableware”?
To answer these questions, one needs to bear in mind what was said by Kitto J in New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 514. His Honour, having set forth his reasons for concluding that the recovery of blue-metal is not an object of underground mining and therefore that “mining operations on mining property” (in the ordinary sense of those words) were not involved in the appellant’s operations, added this at page 514:
I do not go so far as to say that a view favourable to the appellant in this case could not reasonably be held. But in the end the conclusion must depend on one’s own understanding of the sense in which words are currently used, and although Dr. Johnson in his day defined a “quarry” as a “stone mine”, it seems to me an unnatural and inapt use of language to apply the term “mining operations” to the getting of stone such as blue-metal by open excavation, and to call the land on which those activities are conducted “a mining property”. [footnotes omitted]
Discussing this case, Professor Pearce and Adjunct Professor R.S. Geddes said at page 154 of the 8^th edition of Statutory Interpretation in Australia, referring to English authority, that commonsense, experience of the world and local knowledge should guide the interpretation of ordinary English words used in a statute. Tariff concession orders are, of course, delegated legislation.
My understanding of the sense in which words are currently used is that the answer to the questions I have posed in [16] and [17] is that both the aluminium tray and the ceramic tray, used as described, are “tableware” in the ordinary sense of that word. Presentation of a cooking utensil as an aid to serving is certainly not unknown and it may, in my opinion, form part of “tableware” when used for serving at a table. The fact that a tray might catch fats if meats were cooked in it may make it less attractive as tableware to some, but the question in this case should perhaps not be influenced by such niceties, and in any event, gravy may be made in aluminium trays, in part, by using fats.
A doubt which I have is the one which I expressed in [14]. One matter should be mentioned again in that regard. That is that tables include outdoor tables, and tableware may extend to what is used with barbecued food served on garden furniture. The goods in issue are typically used either with a barbecue or with an oven. The goods would not be out of place if used as trays to serve barbecued food on an outdoor table. Would they then be called tableware because amongst (even though disposable) their uses, may be as serving trays on outdoor tables? At least on an outdoor table, they could well so qualify.
The other members of the enumeration in the TCO need not always be used in associations with a table. Bottles might be used otherwise than at or on a table, and so might cups and saucers. It may therefore not matter that another use of the subject goods is for cooking, and to avoid fat reaching burners or oven parts.
The fact that aluminium is required to be involved in what is covered by the TCO makes what is covered by the TCO somewhat unusual tableware. In answering the question in this case, one should, I think, be able to draw an analogy between ceramic or glass items and imagine those items rather than aluminium items in order to answer the question as to the meaning in context of “tableware”. For example, aluminium bottles are uncommon, and bottles are usually made of glass. Salt and pepper shakers are not commonly made of aluminium, and are often ceramic.
They are also sometimes disposable, although usually made of glass or plastic, but are not single use, of course.
The question in this case is hard to answer by recourse to any general rule. It is necessarily to be answered in an impressionistic way, and this appears to me to be a case where reasonable minds could differ, just as Kitto J accepted in the passage I have set out in [18].
I am not satisfied that disposable items should be excluded from tableware because they are disposable, as I have mentioned in [23]. I am not satisfied that single-use disposable items should be excluded from “tableware” at least when used on an outdoor table.
I am satisfied that items used on an outdoor table in connection with, for example, a barbecued meal can appropriately be referred to as “tableware” in its ordinary sense.
I think that analogies to goods of different composition may appropriately be drawn for the purpose of characterisation under this TCO for reasons mentioned in [23] and that tends to confirm that the subject goods are tableware, for reasons I have mentioned in [20] in that a ceramic tray, or a reusable aluminium tray, used on a table for serving purposes is “tableware” within the ordinary meaning of the word.
DECISION
For those reasons, I conclude that the subject goods are “tableware” and the reviewable decision will be set aside. The matter will be remitted to the respondent with a direction that the goods are entitled to be admitted free of duty under TCO 1132500.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC

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Associate
Dated: 9 November 2018

Date of hearing: 18 October 2018

Advocate for the Applicant: Ms S Knox

Solicitors for the Respondent: Mr R Northcote, Department of Home Affairs

Date of hearing:	18 October 2018
Advocate for the Applicant:	Ms S Knox
Solicitors for the Respondent:	Mr R Northcote, Department of Home Affairs