The Jedko Game Company Pty Ltd v Collector of Customs New South Wales

[1987] FCA 106

Re: THE JEDKO GAME COMPANY PTY. LIMITED
And: COLLECTOR OF CUSTOMS NEW SOUTH WALES
No. G412 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.
Beaumont J.
Burchett J.

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - classification of goods under Schedule 3 to Customs Tariff Act 1982 - whether books for use in role playing games were "equipment for games" - whether a question of law or fact.

Hope v. Bathurst City Council (1980) 144 CLR 1

N.S.W. Associated Blue-Metal Quarries Ltd. v. F.C.T. (1956) 94 CLR 509.

New York Properties Pty. Ltd. v. F.C.T. (1985) 61 ALR 345

Customs Tariff Act 1982, Schedules 2 and 3.

Administrative Appeals Tribunal Act 1975, s.44(1).

HEARING

SYDNEY

#DATE 10:3:1987

Counsel and Solicitors for Applicant: M.F. Holmes instructed by Dunhill Morgan Walker Gibbs.

Counsel and Solicitors for Respondent: A. Robertson instructed by Australian Government Solicitor.

ORDER

The appeal be dismissed.

The applicant pay the respondent's costs.

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

JUDGE1

In this matter I have had the advantage of reading the judgment to be delivered by Beaumont and Burchett JJ. The relevant legislation, the facts of the matter and the essential reasons of the Controller and the Administrative Appeals Tribunal are set out therein and I need not refer to them.

1. As the other members of the Court have said, the question is whether the articles in question fall within Chapter 97 of the Tariff. If they do, they will not fall within Chapter 49, notwithstanding that, whether they fall within Chapter 97 or not, they are also properly described as books.

2. In the course of the argument we were referred to the evidence concerning the articles and the way in which they are used. After we reserved our decision, I made cursory examinations of the articles and read some parts of them. Having done so, I have reached the clear conclusion that they are properly described as equipment for table games for adults or children. For a time I had some reservation whether this was so in respect of the second parcel of goods being the two Penguin paperback role playing adventure game books. This is because they may be read as a book, the continuity depending on the choices the reader makes as he goes along. But for the exercise to be done as the author intended, one needs, as the Collector has said, to throw dice and to record scores on the "Adventure Sheet" pages of the book. In this way are determined a number of matters essential for a proper working out of the adventure in which the reader will play a part, namely, his degree of skill, stamina and luck. There is thus involved a game, albeit for one person to play alone, which requires the throwing of dice, something which would usually be done at a table.

3. In the course of my consideration of the matter I have taken into account the fact that the words of the item refer to equipment for games, not the games themselves. The reason for the selection of these words was no doubt because a game is something different from the equipment which is used to play it. It connotes the sum of the activities, physical or intellectual, which need to be engaged in by the players of the game in the contest which it involves. The game will be played by the players making use of the equipment which they must necessarily have in order to play the game. The books in question here are equipment for a game because, without them, the games devised by the authors could not be understood or played.

4. For these reasons I am of opinion that the appeal should be dismissed. Before I conclude, there are two matters which I should mention. Firstly, it was submitted by counsel for the applicant that there was within the Tribunal's decision an inconsistent approach which itself was said to amount to an error of law. This inconsistency arose, so it was contended, because the Tribunal's decision in relation to other parts of the matter which was before it could not stand with its decision on the matters which were in question before us. The applicant was successful in relation to the other matters. No appeal or cross-appeal from the Tribunal's decision on those matters was brought by the Collector. Having examined the Tribunal's decision, I have not found within it the inconsistency for which counsel contended. More importantly, its decision in relation to the matters which were in issue before us was, in my opinion, correct.

5. The remaining matter concerns the question whether the appeal to this Court involved a question of law or fact. This was not a matter raised in argument. Indeed, counsel for the Collector expressly refused to make a submission that no question of law arose for decision. This is not the occasion for an analysis of the authorities on the principles which apply to guide courts in determining whether a particular question is one of fact or law. All I would say is that, as at present advised, I think this case falls within the principle propounded by Mason J. (as he was) in Hope v. Bathurst City Council (1980) 144 CLR 1 where he said (p. 7) that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. Here the facts have been fully found and for that reason I incline to the view that the questions before us were questions of law rather than of fact. However, I express no concluded opinion.

6. For the reasons I have given I would dismiss the appeal with costs.

JUDGE2

The applicant, an importer of goods, appeals from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a number of decisions of the respondent, the Collector of Customs, New South Wales, whereby it was determined that two separate parcels of goods fell to be classified within item 97.04 rather than item 49.01 of the classification of goods under Schedule 3 to the Customs Tariff Act 1982 ("the Act"). The matter is before the Court in its original jurisdiction under s.44(1) of the Administrative Appeals Tribunal Act 1975 which permits an "appeal" to the Court on a question of law only.

1. Item 49.01, as it stood at the relevant time, was in the following terms :
   
   

"49.01 * PRINTED BOOKS, BROCHURES, LEAFLETS AND SIMILAR PRINTED MATTER, WHETHER OR NOT IN SINGLE SHEETS:

49.01.1 - Australian directories, guides and timetables

49.01.9 - Other."

The rate of duty attracted by the relevant sub-item is "free".

1. Item 97.04, as it stood at the relevant time, was in the following terms:
   
   

"97.04 * EQUIPMENT FOR PARLOUR, TABLE AND FUNFAIR GAMES FOR ADULTS OR CHILDREN (INCLUDING BILLIARDS TABLES, PINTABLES AND TABLE-TENNIS REQUISITES):

97.04.1 - Playing cards:

97.04.11 --In packs

97.04.19 --Other

97.04.2 -Dartboards and darts

97.04.9 -Other"

1. The rate of duty attracted by this item is 25% (i.e. the general tariff).

2. Rule 1(2) of Schedule 2 to the Act requires regard to be paid to Notes to Divisions and Chapters. Note 1(b) to Chapter 49 provides that goods falling within Chapter 97 do not fall within Chapter 49. As the Tribunal correctly pointed out, this provision appears to preclude any need to resort to Rule 3 of the Rules for the interpretation of Schedule 3 which are set out in Schedule 2 to the Act. Further, Note 4 to Chapter 97 states:
   
   

"For the purposes of this Schedule, parts and accessories of a kind used solely or principally with goods falling within this Chapter shall, unless the contrary intention appears, be treated as if they were the goods for which they are parts or accessories."

1. The first parcel of the goods in dispute consists of two hardbound manuals entitled "Official Advanced Dungeons & Dragons Players Handbook" and "Official Advanced Dungeons & Dragons Dungeon Masters Guide". It was common ground that, as a matter of ordinary language, each of the goods could properly be described as a book. The question for determination by the Collector and, on review, by the Tribunal, was whether the goods fell within Chapter 97, i.e., "Equipment For Parlour, Table And Funfair Games for Adults Or Children (Including Billiards Tables, Pintables And Table-Tennis Requisites)." It will be remembered that if goods fell within Chapter 97, they could not fall within Chapter 49.

2. As has been said, the Controller made a determination that the subject goods fell within Chapter 97 and thus did not fall within Chapter 49. His determination dealt with a number of goods but the only items which now call for consideration are the manuals already mentioned. The Controller's reasons so far as relevant, were as follows:
   
   

"7. The subject goods are identified, on informed inspection, as articles used in various role playing game systems. They include the following components:

. modules (printed scenarios which create the circumstances by which the game is played); (no appeal is brought in respect of the determination made in respect of this item)

. various manuals (used constantly as reference guides during play); and

. other printed material (playing aids such as maps, charts, screens, character cards and mission sheets). (No appeal is brought in respect of the determination made in respect of this item)

Note: Other articles essential for use in role playing game systems which are not included in the subject goods include various multi-faceted dice and miniature figurines.

8. Role playing game systems are story telling games usually played by groups of two or more people. Players behave like actors, imagining that they are one or more of the characters represented in the game.

9. At the commencement of each game a player is selected to be the gamesmaster or referee, who, with the aid of the information contained in the modules and gamesmaster manuals, creates the circumstances by which the game is played and oversees the operation of the game.

10. The other players utilise the players' manual which provides all the information required to play a role in the game and includes a range of solutions to the circumstances presented by the gamesmaster.

11. Other playing aids include frequently consulted charts and maps and articles designed to enhance the playing conditions.

12. Various multi-faceted dice (not included in the subject goods) are used in each role playing game to determine the result of encounters created by the gamesmaster.

13. The subject goods are indispensable and interactive in the playing of the games as they are constantly referred to as each player presents or reacts to the scenario created.

14. The subject goods are considered to be more than mere instruction or rule books but rather equipment essential to the designed operation of role playing games."

1. In holding that the manuals fell within Chapter 97, the Tribunal reasoned as follows :
   
   

"(They) appear to us to be collections of the glossology, or encyclopaedias of the endless chain of phantoms haunting the minds of Gary Gygax (the author of the manuals) and his co-contributors. In one sense it might be said that they are utilised in acquainting players and games masters with the hag haunted world of creatures and conditions suitable for use in the game but more correctly their essential characteristic is as artificial implements for playing role-playing games. They are not works of classical mythology or works of allegory to be compared with those of Tolkien but simply collections of the properties of the impedimenta of the Gygax and associated games. They are essentially tools for playing those games just as the dressmaker's model in Hollinrake v. Truswell (1894) 3 Ch. 420 was a tool, even though they can be described as literary works for the purposes of copyright."

1. The matter for determination by the Collector, and, on review, by the Tribunal, was whether the manuals ought to be classified as falling within Chapter 97. This is a mixed question of law and fact (see N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation (1956) 94 CLR 509, per Kitto J. at pp 51l-512; Hope v. Bathurst City Council (1980) 144 CLR 1 per Mason J. at pp 7-8). First, it is necessary to decide as a matter of law whether the Act uses the expression "Equipment For Parlour, Table And Funfair Games for Adults Or Children (Including Billiards Tables, Pintables and Table-Tennis Requisites)" in any other sense than that which it has in ordinary speech. The expression is not defined in the Act and it is not suggested that it has any technical or legal signification. Moreover, there is not to be found in the Act any indication that the expression was intended to have any other meaning than that which the words ordinarily have. The common understanding of the words has therefore to be determined and, as Kitto J. observed in N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation, supra, at p 512, that is a question of fact. The Collector, and on review the Tribunal, accepted, correctly we think, that the words in their ordinary understanding meant the provision of what is requisite for the subject activity. The next question is whether the material before the Collector, and, on review, before the Tribunal, reasonably admits of different conclusions as to whether the applicant's goods fall within the ordinary meaning of the words as so determined. This is a question of law. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion and that is a question of fact (per Kitto J. at p.512).

2. Accepting for the purposes of the argument that the material before the Collector and, on review, before the Tribunal, reasonably admits of different conclusions as to whether the applicant's goods fall within the ordinary meaning of the words determined as aforesaid (and thus raising a question of law), it does not follow that any relevant question of law arises in the present appeal. As has been said, even if different conclusions are reasonably possible, it is still necessary to decide which is the correct conclusion and that is a question of fact. It would only be if it was not open to the Tribunal on the material before it to reach the decision it expressed that an error of law, rather than fact, could be shown.

3. In the present case, the applicant now seeks to challenge the Tribunal's decision by reference to the ultimate finding - one of fact - that the subject manuals fell within the ordinary meaning of the expression "Equipment For Parlour, Table And Funfair Games for Adults Or Children (Including Billiards Tables, Pintables and Table-Tennis Requisites)". As has been said, s.44(1) of the Administrative Appeals Tribunal Act permits an appeal on a question of law only. Since there is no relevant question of law involved in this aspect of the appeal, we would dismiss the appeal to this extent (cf. New York Properties Pty. Ltd. v. Federal Commissioner of Taxation (1985) 61 ALR 345 at pp 357-8). We would add, if it were necessary for us to express a view, that not only was the Tribunal's factual determination open to it, but also we would agree with it.

4. The second parcel of goods the subject of the Collector's determination consists of two "Penguin" paperback role playing adventure gamebooks as follows:
   
   

"Gamebook 18, Steve Jackson and Ian Livingstone present 'Rebel Planet'

Gamebook 19, Steve Jackson and Ian Livingstone present 'Demons of the Deep'."

1. In his reasons, the Collector said:
   
   

"9. The subject goods are identified as solo fantasy role playing games in book form. The goods are used with dice, a pencil and an eraser to play a game adventure.

10. To commence play dice are thrown a number of times and resulting scores are recorded on the 'Adventure Sheet' pages of the book. This determines the player's skill, stamina, luck, etc. and during the course of the game these figures will be raised or lowered according to the fortunes of the player.

11. After reading the first few pages of background to the story, play is commenced at the text numbered 1. A choice of further numbers to turn to throughout the book is encountered and the purpose of the game is for the player to react to each new piece of numbered text that he/she is directed to.

12. For example, there may be a choice of doors to enter, a choice of objects to examine, or a choice of whether or not to do battle. If the choice to battle a monster or demon is made, the dice must be used to determine the outcome of the struggle.

13. Use of dice during the course of play indicates that the subject goods are games, albeit in book form."

1. In holding that the books fell within Chapter 97, the Tribunal explained:
   
   

"True it is that a person uninstructed by item 49.l (b) would call 'Rebel Planet' and 'Demons of the Deep', books. But as so instructed, it appears they are equipment for the playing of games. However they are hardly parlour games for they are not games played at parties but in solitary splendour. They are not funfair games and the question remains, can they be described as table games. On the whole the Tribunal considers them to be table games. Some people might lie on the floor and throw the dice, but most games involving dice are usually played on tables, unlike e.g. two-up, and are properly described as table games."

1. In our opinion, no relevant question of law arises out of the Tribunal's decision. The Tribunal accepted that the statutory expression was intended to be understood in its ordinary sense. Again, the Tribunal applied that ordinary meaning to the facts of the case. A question of fact and not of law is thus involved. We would dismiss this part of the appeal also. We would add that we would agree with the Tribunal's view of the facts, although, as the Tribunal seems to have recognised, this conclusion is not free from difficulty.

2. We would propose that the appeal be dismissed with costs.