Universal Magazines Pty Ltd v Collector of Customs

[1992] FCA 335

Re: UNIVERSAL MAGAZINES PTY LIMITED
And: COLLECTOR OF CUSTOMS
No. G281 of 1991
FED No. 335
Bounties
(1992) 36 FCR 158

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Bounties - Book bounty - Legislation providing for payment of bounties on certain books but excluding from eligibility, inter alia, "a directory relating to a trade, business or profession conducted ... in Australia" - Meaning of "directory" - Whether the word includes a "guide" - Whether a publication resulting from a process of selection and including evaluative comment may be a "directory".

Bounty (Books) Act 1986, ss.4, 5.

HEARING

SYDNEY

#DATE 29:5:1992

Counsel for the Applicant: Dr G.A. Flick

Solicitors for the Applicant: Phillips Fox

Counsel for the Respondent: D.K. Catterns

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay to the respondent his costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal, pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975, challenging the correctness in law of aspects of a decision of the Administrative Appeals Tribunal concerning the eligibility of certain publications for book bounties under the Bounty (Books) Act 1986. The Tribunal, constituted by Deputy President C.J. Bannon QC, upheld the applicant's claim of eligibility in respect of some publications but rejected it in relation to others. The applicant challenges those rejections.

1. The publications the subject of the present appeal may be divided into groups, each member of which is similar to each other member. The first group consists of a number of publications whose title starts with the words "Cheap Eats". In each case those words are followed by the name of a particular city: "in Sydney", "in Melbourne" etc. Books in the second group each have a title commencing "Bargain Shoppers Guide" followed by a reference to a city: "to Sydney", "to Melbourne" etc. In the same way, there is a group of publications starting with the words "Gardener's Buying Guide" followed by the name of a city; a group, "Bargain Renovators Guide" followed by the name of a city; and, finally, a group entitled "Sydney at your Service", "Melbourne at your Service" etc.

2. All of the publications share two characteristics: first, they do not purport to be comprehensive, in the sense of referring to all the commercial services available in their area of interest in the particular city; second, they mix objective facts with comments based upon somebody's subjective evaluation of the service offered. For example, "Cheap Eats in Sydney" does not pretend to refer to all of Sydney's restaurants, or even to all those offering food at modest prices. The compilers seem to have selected a batch of restaurants, offering between them a range of cuisines, in each section of the Sydney metropolitan area. No doubt, they took care to insert those restaurants that they thought likely to be of greatest interest to readers; especially those that they thought offered best value for money. The review of each restaurant includes factual matters; such as the days and hours during which it is open, whether it is licensed or BYO, the credit cards it accepts and its address and telephone number. The review also mentions some of the dishes offered and their prices. In each case the entry also includes subjective comments upon such matters as food quality, the service, the decor and whether the restaurant provides good value for money.

3. Section 4 of the Bounty (Books) Act sets out a definition of the term "bountiable book": "a book that, at the time its production is completed, is a book that, if it were imported into Australia, would be -
   

(a) goods in respect of which duty of Customs would not be payable; or

(b) goods to which heading 4901, 4903 or 4905 in Schedule 3 to the Tariff Act would apply,

but does not include a book that, at that time, is an ineligible book".

1. It is agreed between the parties that each of the subject publications complies with paras. (a) and (b) of this definition. But the respondent, the Collector of Customs, asserts that each publication is an "ineligible book".

2. The term "ineligible book" is explained by s.5. This section relevantly provides:
   

"5(1) A reference in this Act to an ineligible book shall be read as a

reference to -

...

(c) a book that is -

(i) a directory relating to telephone services;

(ii) a directory relating to a trade, business or profession conducted;

(iii) a directory relating to accommodation available; or

(iv) a timetable relating to a service, in Australia or in a place or places in Australia;"

1. The Collector contends that each of the subject publications is a directory relating to a trade or business conducted in Australia; and accordingly ineligible by virtue of sub-para(ii) of s.5(1)(c). The applicant accepts that each publication relates to a trade or business in Australia but says that none is a "directory".

2. Mr Bannon held that each of the subject publications was a "directory". In his reasons for decision, Mr Bannon referred to the history of the legislation. The present Act was preceded by the Bounty (Books) Act 1969. That Act excluded from bounty "a book that is a directory, guide or timetable or similar publication relating, in whole or in substantial part, to Australia or a place or places in Australia" (see s.3A(1)(c)). In December 1985 the Industries Assistance Commission delivered a report entitled "Book Production". Paragraph 4.2 of this report dealt with bounty eligibility. The Commission referred to the 1969 Act criteria for eligibility and to criticisms of them by the Australian Customs Service; in particular, in relation to directories, guides and timetables. The Commission reported the Service's concern about "determining the level of evaluative/editorial comment as opposed to the factual information in the publication. If the proportion of evaluative/editorial comment is sufficiently high, the publication can be bountiable".

3. The Commission went on to refer to suggestions from industry participants that bounty be extended to Australian directories and guides, perhaps with exceptions. In para 4.2.3 the Commission commented that:
   

"Administration would be simplified, discretion and uncertainty reduced and administrative costs lowered if the need to distinguish between categories of books were removed or reduced."

At the conclusion of its report, the Commission recommended, inter alia, that from 1 January 1987:

"... bounty eligibility be extended to books being Australian directories, guides, street directories, road guides and the like (excluding telephone directories and classified buyers' guides) ..."

1. In the course of his Second Reading Speech on the Bill for the 1986 Act, in the Senate on 20 November 1986, the Minister referred to the Commission's report and, particularly, to the recommendation just quoted. He stated that the Government had accepted "the basic thrust of the recommendations of the Commission", the only stated exception being a decision to defer consideration of the Commission's recommendation to reduce bounty rates until receipt of a report upon a related matter that was then being prepared by the Commission. The Minister went on:
   

"... (t)he government has also decided that bounty eligibility is to be extended to include Australian guides and directories. The exclusion of these goods from the previous bounty scheme has caused considerable administrative problems for the Australian Customs Service and confusion within the industry".

1. The Minister did not suggest that there were to be any exceptions to this extension. This is curious. As counsel at my request ascertained, the Bill then before the Senate included para (c), as set out above. Clearly, that paragraph excludes some types of directories. Perhaps the Minister intended to convey to the Senate that the exclusions did not go beyond those recommended by the Industries Assistance Commission i.e. "telephone directories and classified buyers guides". On one view, and leaving aside timetables, this would be a fair description of the publications listed in para(c).

2. After referring to this history, Mr Bannon commented:
   

"However the Act as passed excludes eligibility for 'directories' and does not mention 'guides' separately. However the words 'guides and directories' appear to me to be a hendiadys, 'guides' being a species of 'directories'. This Tribunal is in no position to decide that there is a drafting mistake in the Act and to ignore the exclusion of 'directories' from eligibility. It may well have been the result of amendment or opposition to the terms of the draft Bill which caused 'directories' to be excluded from eligibility. The Tribunal accepts that Parliament has forbidden the grant of bounty for works that are directories".

1. As indicated, counsel have ascertained that there was no change to para (c) during the course of the Bill's Parliamentary passage. So the hypothesis of amendment is unfounded. Nonetheless, Mr Bannon was clearly correct in stating that the Tribunal was not able to ignore the exclusion of "directories" from eligibility. Nobody suggests otherwise. However, counsel for the applicant contends that, in this passage, Mr Bannon fell into the legal error of treating "directories" as including "guides". Counsel says that this error was fundamental to the decision because Mr Bannon went on to consider whether the subject publications were "guides" and, answering that question affirmatively, thereupon denied the applicant's claim for eligibility.

2. I think that counsel's analysis of Mr Bannon's reasoning process is correct. On a number of occasions Mr Bannon used the words "directory" and "guide" as if they were interchangeable. At one point he said:
   

"In my view a 'directory' or 'guide' comprehends more than systematic lists of things available at a particular place or from a particular organisation and can include analytical comment or subjective appreciation of the business or service involved. Comment on the aesthetic qualities and amenities is not excluded from the term 'directory'. Travel guides often go beyond mere facts".

1. Later he said:
   

"A publication does not escape being a directory because a few editorial comments are inserted nor does it become one, simply because it records a number of facts. Whichever way one looks at it, there may come a point where a publication ceases to be a directory or guide and becomes an analysis of a subject matter or matters".

1. Referring to "Cheap Eats in Sydney", Mr Bannon commented that it:
   

"... not only includes analytical comment of restaurants under discussion, but remains a guide or directory. It is not a list of trade puffs or facilities inserted by a would-be advertiser, but contains largely advertising matter as well as editorial and journalistic discussion of eateries".

1. Rejecting the eligibility claim of the various publications whose titles commence with the words "The Bargain Shoppers Guide", Mr Bannon said:
   

"On the whole I consider this work to be preponderatingly

(sic) a trade guide. True, its contents are selected according to the criteria described by Sybil Kesteven and Amaris Corrine Podger, but it does not cease to be a trade directory for that reason".

1. The critical submission of counsel for the applicant is that Mr Bannon erred in holding that the word "directory" includes "guide". Although conceding that there is a degree of overlap in the application of the two terms, counsel contends that a "guide" depends primarily upon selection, evaluation and subjective comment; whereas a directory is essentially concerned with setting out factual information from which the reader can make his or her own selection. Counsel submits that a "directory" is "comprehensive and not selective as to merit". He called in aid some dictionary definitions. The Macquarie Dictionary defines the word "directory", when used as a noun, as follows:
   

"1. A book or the like containing an alphabetical list of the names and addresses of people in a city, district, building etc., or of a particular class of persons, etc.

2. A book containing an alphabetical list of telephone subscribers and their numbers.

3. Any book or list which serves to direct the reader".

1. The Oxford English Dictionary gives the following meanings:
   

"1. Something that serves to direct; a guide; esp. a book of rules or directions.

2. ...

3. A book containing one or more alphabetical lists of the inhabitants of any locality, with their addresses and occupations; also a similar compilation dealing with the members of a particular profession, trade, or association as a Clerical or Medical Directory, etc. ..."

1. The Macquarie Dictionary relevantly defines the word "guide", when used as a noun, in this way:
   "4. One who guides, esp. one employed to guide
   travellers, tourists, mountaineers, etc.
   5. A mark or the like to direct the eye.
   6. A guide book.
   7. A guide post".
   

2. The Shorter Oxford English Dictionary cites a number of meanings including, where the word is used in titles of books, "a book of elementary instruction or information" and "a guide-book". The term "guide-book" is itself defined as "a book for the guidance of visitors or strangers in a district, town, building, etc".

3. The term "directory" is not defined in the Bounty (Books) Act. Nor, so far as I am aware, has its use in this context been the subject of previous judicial consideration. The matter was considered in an earlier decision of the Administrative Appeals Tribunal, Re Images Australia Pty Ltd v Comptroller-General of Customs (1991) 13 AAR 112, a decision of Deputy President Todd. The publication then under consideration was entitled "Building Professionals of Australia - the Bicentennial Edition 1988-89". This publication contained information regarding firms engaged in the construction industry. At 118 Mr Todd said:
   

"The only problem in the way of finding that the present book is a directory, and in view it is a very great problem, is that it is in no way comprehensive".

1. After referring to the various definitions of the term "directory" in the Macquarie Dictionary, Mr Todd continued:
   

"None of these meanings deals with the question of comprehensiveness, and I must do the best with it that I can. I can only say that a publication that is extremely selective as to which persons or corporations involved in a trade or business should be included would not in my opinion be likely, in popular parlance, to qualify as a 'directory'. There are no doubt shades of meaning. A publication which requires that some standard be observed, such as in a hotel/motel guide, would be likely still to be aptly described as a directory, notwithstanding the omission of entrants because they have failed to fulfil standards. But it is one thing to exclude some persons or corporations because they fail to satisfy a standard. It is another to regard as a directory a publication like the present which selects a number of participants on the basis of a private award of merit. If you receive the accolade you may opt out. If you opt for inclusion you write you own entry, subject to editing out by the publisher. But it is not by any means a comprehensive directory of all who offer themselves as competent and experienced in the trade. It may well be interesting to persons wishing to know what can be offered by some leading firms and corporations in the trade etc., but it is not in my opinion a directory".

1. Counsel for the respondent contends that Mr Bannon's approach was correct. He argues that there is no true distinction between a "guide" and a "directory"; that the latter term includes the former. A "directory", says counsel, is a document which seeks to direct or guide the reader by listing relevant information, thereby enabling the reader to make an informed selection. Counsel says that the essential feature of a directory is that it is available to be consulted as the need arises; for example, when the reader wishes to use the telephone or go out for dinner. There is nothing in the term "directory", counsel argues, to exclude its application to a book produced by selection and containing comments. By way of example, counsel suggests that a comprehensive list of practising barristers, with addresses or telephone numbers, would properly be described as a "directory"; but that the term could equally be applied to a list of barristers prepared by a process of selection and evaluation within the offices of a particular firm of solicitors and designed to guide the choice of barristers by persons within that firm. This would be so, counsel says, even though the document contained evaluative comments. A publication such as the "Michelin Guide", which relies heavily upon processes of selection and evaluation, is, according to counsel, a "directory" - the reason being that it assists the traveller in the choice of route, accommodation and places to visit.

2. I would not suggest that, in every context, the word "guide" is included in "directory". However, Mr Bannon must be read as speaking in the context of s.5(1)(c) of the Bounty (Books) Act. In that context, I do not think that his approach reflects error of law. In coming to that conclusion, I am influenced by the fact that both the Macquarie Dictionary and the Oxford English Dictionary apply the word "directory" to a publication which "serves to direct" the reader. It may be true that the word "directory" most readily conjures examples of publications which purport, within their chosen area, to be comprehensive; for example, the White Pages telephone directory or one of the commercial street directories. However, neither dictionary definition requires comprehensiveness. If anything, the reference to something that "serves to direct" suggests that a publication falling short of comprehensiveness may suffice.

3. In considering the meaning of the disputed term in its statutory context, it is instructive to note its use in sub-paras. (i) and (iii) of s.5(1)(c). A "directory relating to telephone services" may attempt comprehensiveness. But there are publications, generally called directories, which relate to telephone services and which are not comprehensive; for example, the "Yellow Pages" and the "Pink Pages". When one turns to sub-para (iii), it is even less obvious that comprehensiveness was intended. Except, perhaps, within a very small geographical area, it would be extremely difficult to list all accommodation available within a particular part of Australia.

4. Furthermore, as counsel for the respondent points out, the various sub-paragraphs use the prepositional phrase "relating to". The effect is to require merely a relationship between the directory and a particular trade, business or profession conducted in Australia. If comprehensiveness was required, a different word - perhaps "listing" or "specifying" - would have been more appropriate.

5. Similar considerations apply to the applicant's argument that the publications are not directories because they are the product of selection and contain evaluative comments. Neither of these limitations is to be found in any of the dictionary definitions. Nor is either, I think, inherent in the use of "directory" in any of the other sub-paragraphs of para(c). It may be thought that there is not much room for selection or evaluation in a telephone directory; but one has only to glance through the Yellow Pages and the Pink Pages to realise that their compilers have had to determine the categories into which individual advertisements will be placed and that many contain evaluative comment, albeit laudatory and provided by the advertisers themselves. When one considers accommodation directories, it becomes almost inconceivable that there would not be some degree of selection and comment.

1. It follows that I am unable to accept the approach taken in Re Images Australia. I do not see why a publication ceases to be a "directory" simply because it is the product of a selection process "on the basis of a private award of merit". This seems to me to impose a gloss on the statutory test, namely whether the publication serves to direct the reader in relation to a subject matter referred to in para (c).

2. In reaching my conclusions, I have not been assisted by the history of the legislation. It is true that the 1969 Act referred to both a "directory" and a "guide". But it is unclear why the 1986 Act did not follow that precedent. One possible view, advanced by the respondent, is that this was unnecessary as, in context, "directory" includes "guide". Another view, perhaps supported by the disconformity between the Second Reading Speech and the text of the Bill, is that there was an oversight in the legislative instructions or the drafting of the Bill and that the word "guide" was inadvertently omitted. A third possibility - urged by the applicant and, perhaps, supported by the Industries Assistance Commission Report, although inconsistent with the Second Reading Speech - was that the Government made a deliberate choice to exclude from eligibility only limited categories of the publications previously excluded. As it seems to me, all of these explanations are plausible. So I think it dangerous to place reliance upon the legislative history. It is better to look at the ordinary meaning of the words used and to apply that meaning in the statutory context.

3. I conclude that the Tribunal did not err in law. The application should be dismissed with costs.