ON APPEAL FROM THE SUPREME COURT OF Customs Duties - Tariff -Classification of goods-Trade usage Evidence-
" Chassis of motor cars lorries and waggons"-Crestons Tariff 1908-1911 (No. 7 of 1908-No. 19 of 1911), Schedule A, Items 161, 380. MELBOURNE,
Held, by Isaacs, Higgins, Gavan Duffy and Rich JJ. (Griffith C.J. dissent- May 14, 17, 18; June 11.
ing), that the words "motor cars lorries and waggons" in Item 380 (E) of Schedule A of the Customs Tariff 1908-1911 do not include all kinds of motor vehicles, but mean three different species of motor vehicles.
The plaintiff imported several chassis of vehicles into the Commonwealth. The vehicles for which the chassis were adapted were intended for use as a road train. For that purpose each chassis carried an electro-motor which, when supplied with electricity, would move the particular vehicle. One of the chassis also carried a petrol engine and machinery which would generate sufficient electricity to supply all the electro-motors, and on that chassis were the means of steering the other vehicles.
Held, by Isaacs, Higgins, Gavan Duffy and Rich JJ. (Griffith C.J. dissent- ing), that none of the chassis was a chassis of a motor car, lorry or waggon within the meaning of Item 380 (E) of Schedule A of the above-mentioned
Where an article of a kind which has never before been imported into Australia is imported, evidence as to what that article would be called in the trade is not admissible for the purpose of establishing a name by trade usage, and so bringing the article within a particular item of such Schedule.
Decision of the Supreme Court of Victoria (Hood J.) reversed.
One Ralph Sadleir Falkiner, trading as the Falkiner Electric Co., brought an action in the Supreme Court against Percy Whitton, Collector of Customs for Victoria, alleging that in November 1913 he imported into Victoria "a motor car with two benzine motors each 100 to 120 horse-power capacity and one double-dynamo chassis" and "ten electric motor waggons chassis"; that a dispute arose between the plaintiff and the defendant as to the amount and rate of duty payable in respect of the goods, the defendant contending that the motor car chassis was dutiable under Item 161 of Schedule A of the Customs Tariff 1908-1911 as a "locomotive, traction or portable engine," and that the waggons chassis were dutiable under Item 380 (A) as "vehicles n.e.i.," and the plaintiff contending that the motor car chassis and the waggons chassis were dutiable under Item 380 (E) as " chassis of motor ears, lorries or waggons"; and that the plaintiff paid under protest the amount of duty based on the contention of the defendant. The plaintiff claimed the difference between that amount and the amount payable if the goods were dutiable under Item 380 (E). By his defence the defendant contended that portion of the goods were dutiable under Item 161…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Whitton v Falkiner
Sign in free to access the full text
Details
AGLC
Whitton v Falkiner [1915] HCA 38
Case
[1915] HCA 38
Decision Date
CaseChat Overview and Summary
The case of *Whitton v Falkiner* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The dispute concerned the correct classification and therefore the rate of customs duty payable on imported vehicle chassis. The importer, Ralph Sadleir Falkiner, contended that the chassis were dutiable under Item 380(E) of the Customs Tariff 1908-1911 as "chassis of motor cars, lorries or waggons," which attracted a lower duty rate. The Collector of Customs, Percy Whitton, argued that the chassis were dutiable under other items, including Item 161 as "locomotive, traction or portable engine" or Item 380(A) as "vehicles n.e.i.," which carried higher duty rates. The importer had paid the higher duty under protest and sought to recover the difference.
The High Court was required to determine whether the imported chassis, intended for use in a "road train" where one chassis would generate electricity to power the others, qualified as "chassis of motor cars, lorries or waggons" under Item 380(E). This involved interpreting the meaning of "motor cars, lorries and waggons" within the context of the Tariff Act and considering whether the specific design and intended use of the imported chassis excluded them from these categories. A further issue arose regarding the admissibility of evidence of trade usage for classifying goods that were novel or unknown at the time the Tariff was enacted.
A majority of the High Court, comprising Isaacs, Higgins, Gavan Duffy, and Rich JJ., allowed the appeal, overturning the Supreme Court's decision. The majority reasoned that the terms "motor cars, lorries and waggons" in Item 380(E) referred to distinct species of motor vehicles and did not encompass all types of motor vehicles. They found that the imported chassis, particularly the "engine car" chassis which functioned as a mobile power generator and steering unit for the entire train, and the other chassis which were dependent on this external power source, did not fit the ordinary understanding of chassis for motor cars, lorries, or waggons. The Court also held that evidence of what traders would call such articles, if the articles were unknown or not known by that name at the time of the Tariff's enactment, was not admissible to establish a trade usage for classification purposes. The Court emphasised that the classification should be based on the ordinary signification of the terms unless a commercial designation proved otherwise, and that the articles, as imported, must substantially answer the description in the Tariff.
Griffith C.J. dissented, finding that the chassis in question were indeed chassis of motor waggons. He considered that the engine car's capacity for excess power did not disqualify it as a motor car chassis, nor did the fact that the other chassis relied on an external power source. He viewed the chassis as fundamentally similar in type and design to those commonly used for motor cars, lorries, or waggons, and that the intended use or the method of power transmission did not alter their essential character as chassis for such vehicles.