SYNGENTA AUSTRALIA PTY LTD and COMPTROLLER-GENERAL OF CUSTOMS

Syngenta Australia Pty Ltd sought review of a decision by the Comptroller-General of Customs concerning a Tariff Concession Order (TCO). The dispute centred on whether certain herbicides manufactured by Nufarm constituted "substitutable goods" for the purposes of the Customs Act 1901 (Cth), specifically under section 269B(1). The Senior Member, Mr P W Taylor SC, considered the appeal.

The primary legal issue before the Tribunal was to determine whether the Nufarm herbicides, which were approved for use against certain weeds, could be characterised as "substitutable goods" in relation to the goods subject to the TCO, identified by Syngenta as Reflex. This required an assessment of whether the Nufarm products had a "reasonable" actual or potential use that "corresponds" with the use capacity of Reflex, considering factors beyond mere herbicidal efficacy against some common weeds.

The Tribunal's reasoning focused on the interpretation of "substitutable goods" under the Customs Act. While the Comptroller-General had initially found that common herbicidal efficacy against particular weeds was sufficient, Syngenta argued that a more detailed comparison was necessary. Syngenta contended that differences in the approved weed spectrum targets, permissible crop usage, and application timing between Reflex and the Nufarm herbicides meant they did not have corresponding reasonable uses. The Tribunal acknowledged that APVMA approval restricts lawful supply and promotion but noted that this does not necessarily delimit actual efficacy, pointing to residual effects and potential uses in other jurisdictions as examples of factors that might inform the assessment of corresponding use.