Wildia Enterprises Pty Ltd v Collector of Customs (NSW)

[1987] FCA 115

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	No. G38 of 1986
GENERAL DIVISION

ON APPEAL from the General

Administrative Division of the

Administrative Appeals Tribunal

constituted by Deputy President

A.N.Hal1, Mr. G.D.Grant and

Dr.A.P.Renouf

BEZWJEN:

WILDIA ENTERPRISES PTY. LIMITED

Applicant

m:

COLLECTOR OF CUSTOMS (N.S.W.)

Respondent

CORAM: FOX, WILCOX AND BURCHEIT JJ..

U: 27 FEBRUARY 1987

REASONS FOR JU”ENT

(M TEMPORE)

FOX J.

This is an appeal from a decision of the Administrative

Appeals Tribunal which had before it an application to review a

decision of the Collector of Customs. The particular matter at

issue is whether certain lace fabric being imported falls under

an exception to item 58.09 of Schedule	3 of the Customs Tariff
Act 1982.

The Administrative Appeals Tribunal considered the

matter carefully and at length. The argument before us has, it

2 .

seems to me. been one rather of fact than of law and has not in

truth raised a matter of law at all. The particular words which

are included as an exception in item 58.09 of the Schedule are

"knitted fabrics". It was not argued, as I understood, that

these words had other than their natural meaning and it was

sought to show nevertheless that the particular items were not

knitted fabrics. This argument raised questions of fact unless

one took the matter a further distance and submitted that knitted

fabrics in the phrase that	I	have referred to meant fabrics
exclusively or wholly knitted.

I do not understand that there was any such submission,

but in my view it would not in any event be tenable. One has to

read the language according to its ordinary meaning, not

necessarily governed by what any experts might think about its

meaning, although of course their evidence as to what is done in

relation to the method of manufacture of the fabric is	a matter
of proper evidence.

I would only add that on the argument I see no grounds

for differing from the conclusion reached by the Administrative

Appeals Tribunal. My fundamental stand is that the matter is not

within our jurisdiction to determine as only matters of law can

be heard on appeal from the Administrative Appeals Tribunal. I

would therefore dismiss the appeal, as it is called in the Act,

or the application as it strictly is.

3 .

WILCOX J:

I agree with the order proposed by the presiding Judge.

It seems to me that the appeal is governed by the principles

enunciated by Mason J. in v. Bathurst Citv Council 144

C.L.R. 1 at page 7. There his Honour pointed out that, where

what was in issue was a phrase or word used in its ordinary

sense, the question of the application of that phrase to given

facts was ordinarily one of fact and a question of law only arose

where there was an issue as to whether or not the tribunal, in

the particular case, had material to enable it to reach a

particular finding. In this case the relevant phrase is	an
ordinary term and therefore the question is whether there was

material which would have enabled the tribunal to reach the

conclusion it did. Having regard to the evidence to which we

have been taken, I think that there was ample support for the

view that the Tribunal ultimately took and that, therefore, no

error of law has been shown.

BURCHEXT J:

I agree and have little to add. The appellant contended

that a knitted fabric was a fabric either wholly knitted or at

least a fabric of which the distinguishing features were produced

by a knitting process, but the Tribunal did not as I read its

reasons reach its views by asserting any different construction

of the statutory phrase.

4 .

It held on the evidence that a warp knitted fabric was

in fact a kind of knitted fabric and that his fabric was a warp

knitted fabric. As a question of fact the evidence plainly left

this conclusion open to the Tribunal. It therefore made no error

of law. See v. Bathurst Citv Council (1980) 144 C.L.R. 1

and D.& R. Henderson (Mfs) Ptv. Ltd. v. Forbes (Collector of

Customs N.S.W.), and see also when it was on appeal as reported

in (1975) 49 A.L.J.R. 335, particularly passages in both the

joint judgment and the judgment of McTiernan J. at page	336.
(Discussion ensued)
FOX J:

The appeal will be dismissed with costs.

I certify that this and the

three ( 3 ) preceding pages are

a true copy of the Reasons

for Judgment of the Court.

Associate 4wGL Dated: 27 Fe'bruary 1987

Counsel for the Applicant:

Mr R Bainton Q.C. and

Mr P E King

Solicitors for the Applicant:

Dexter Healey & CO

Counsel for the Respondent:

Mr D Yates

Solicitors for the Respondent:

Australian Government

Solicitor

Date of hearing:

27 February 1987

Sydney