Commissioner of Taxation of the Commonwealth of Australia v Chubb Australia Ltd [1995] FCA 147

CATCHWORDS

SALES TAX - exemptions and classifications - principles of construction - "essential character" - meaning of item 1(a) in Third Schedule to Sales Tax (Exemptions and Classifications) Act 1935 and item 84(1) in the First Schedule - meaning of "goods of a kind ordinarily used for household purposes" - discussion of Diethelm Manufacturing Pty Ltd v Commissioner of Taxation - meaning of "for use" in item 84(1) of First Schedule - whether "construction" includes reconstruction.

APPEAL - discussion of Warren v Coombes and findings of a trial judge upon a matter of impression of the kind referred to in S.W. Hart & Co. Pty Ltd v Edwards Hot Water Systems.

WORDS AND PHRASES - "ordinarily", "used for household purposes", "construction", "fabricated units".

Sales Tax (Exemptions and Classifications) Act 1935,

First Schedule item 84(1), Third Schedule item 1(a)

Diethelm Manufacturing Pty Ltd v Commissioner of Taxation

(1993) 44 FCR 450;

Federal Commissioner of Taxation v Smith & Nephew Pty Limited

(1994) 94 ATC 4507 AT 4513;

S.W. Hart & Co. Proprietary Limited v Edwards Hot Water Systems (1985) 150 CLR 466 at 478;

OR Cormack Pty Limited v Federal Commissioner of Taxation

(1992) 92 ATC 4121;

Jetmaster Fire Places Pty Limited v Federal Commissioner of

Taxation (1980) 89 ATC 4464;

Commissioner of Taxation v Thomson Australian Holdings Pty Ltd

(1989) 25 FCR 481 at pp. 482, 488 and 489.

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

v. CHUBB AUSTRALIA LIMITED

NG 626 of 1994

NG 627 of 1994

NG 628 of 1994

CORAM: Burchett, Hill and Tamberlin JJ.

PLACE: Sydney

DATE: 24 March 1995

IN THE FEDERAL COURT OF AUSTRALIA)

) NG 626 of 1994

NEW SOUTH WALES DISTRICT REGISTRY) NG 627 of 1994

) NG 628 of 1994

GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Appellant/Cross Respondent

AND: CHUBB AUSTRALIA LIMITED

Respondent/Cross Appellant

CORAM: Burchett, Hill and Tamberlin JJ.

PLACE: Sydney

DATE : 24 March 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. the appeal be dismissed with costs;

2. the cross-appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA)

) NG 626 of 1994

NEW SOUTH WALES DISTRICT REGISTRY) NG 627 of 1994

) NG 628 of 1994

GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Appellant/Cross Respondent

AND: CHUBB AUSTRALIA LIMITED

Respondent/Cross Appellant

CORAM: Burchett, Hill & Tamberlin JJ

PLACE: Sydney

DATE : 24 March 1995

REASONS FOR JUDGMENT

BURCHETT J.:

I gratefully accept the very full analysis of the evidence and of the findings at first instance which is to be found in the reasons prepared by Hill J. But I shall state briefly my own reasons for reaching the same conclusions as to the disposition of the appeal and cross-appeal.

Questions of classification (and in this case there is no other question) frequently appear deceptively simple. The reason why they often do raise difficulties is that any system of classification is a theoretical construction, into some part of which it is necessary to try to fit all the infinite variety of things that really exist. But some of those things just may not fit. The classification is not a template from which all reality came, but at best a partially successful attempt to include all reality in a series of descriptions of a more or less systematic kind. It follows, in my opinion, that a Court should not exacerbate the problem by giving to the items in a statute setting out exemptions and classifications any narrow or rigid meaning. They must be understood in a flexible and elastic sense capable of accommodating the individual variations, unforeseen by the draftsman, which reality is certain to produce. It must be remembered, too, that a system of classification of articles used by the members of any society will be tested by constant changes in fashions and requirements. To read such a statute in the way I have endeavoured to state is simply to have regard to its nature as the essential context in which its words are used. At the same time, other rules of construction, familiar in relation to revenue legislation, may also have to be applied.

It is from this point of view that I approach the construction of item 1(a) in the Third Schedule and item 84(1) in the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935. Relevantly, they read:

1 "Goods ... of a kind ordinarily used for household purposes, namely: -

(a) furniture, ...."

84(1) "Metal building materials (including girders, rods, bars, wire, sheets, mesh, lathing and fabricated units composed of any of those goods, and attachments for such units) for use in the construction or repair of, and to be wrought into, or attached to, so as to form part of, buildings or other fixtures...".

In the search for an appropriate test which will not be too narrow or rigid, the courts have fastened, when interpreting some of the items in the Schedules, upon the concept of "essential character": see Commissioner of Taxation v Thomson Australian Holdings Pty Ltd (1989) 25 FCR 481 at 482, per Bowen C.J.; 488 per Burchett J.; and 489 per Gummow J. (dissenting as to the result, but not as to this principle). French J. (but not the majority) sought to take the same approach to a problem arising under item 8(a) in Diethelm Manufacturing Pty Ltd v. Commissioner of Taxation (1993) 44 FCR 450. But, with respect, I think the composite nature of the item must be observed. It refers to furniture, and in that respect the essential character of something said to be furniture will often be determinative. However, the item does not apply to a piece of furniture unless it also meets the description "goods ... of a kind ordinarily used for household purposes". That is a question of fact into which degree and impression must enter largely, but I do not think its resolution is assisted much by turning back to the essential character of the article. Rather, attention must be focussed on the statutory question whether goods of that kind are ordinarily used for household purposes.

The question is not whether households ordinarily have such articles. That would be far too narrow a view. The item must apply, amongst others, to goods whose use is rare. But given that they do have a use, the statute asks whether that use is ordinarily for household purposes. Nineteenth century French clocks, for example, are not seen in most homes, but those who do possess them (except in the case of individual clocks so rare and special that they are to be seen only in museums) generally have them in their homes.

Also, "ordinarily", used idiomatically in the sense of "commonly", is not equivalent to "exclusively", nor I think (and the Commissioner's argument accepted this) to "predominantly". See the observations of Gummow J. in Hygenic Lily Ltd v. Deputy Commissioner of Taxation (1987) 13 FCR 396 at 399. It is possible, and it happens frequently, that something is ordinarily used for one purpose, and is also ordinarily used for a quite different purpose. German Shepherd dogs are not the less ordinarily kept as guard dogs because they are also ordinarily kept by dog lovers as companions. An axe is ordinarily used in country households in which wood is burnt to fuel a stove or heater, or where encroaching trees must from time to time be cut back. The very same type and brand of axe may also ordinarily be found in use wherever trees must be felled, or bush timber utilised, in operations having nothing to do with households. There is no suggestion, when the word "ordinary" is applied to each of these uses, that the particular use is the most common use, only that it is a common use. At the same time, the identification of the ordinary use of many items will relegate other uses to a subsidiary role which could not be described as an ordinary use. The recognition of this fact emphasises the importance of degree and impression in the application of item 1(a).

The statute does not employ the expression "used in a household", but "used for household purposes". However, the word "household", when employed as an adjective, has the primary significance "of or belonging to a household, domestic" (see Shorter Oxford English Dictionary, 3rd ed. (1985)). If the use to which an article is ordinarily put requires it to be placed in a domestic establishment, the words " used for household purposes" would generally be satisfied. With respect to those who think otherwise, it is not clear to me that a cabinet, desk or safe used in a home for the storage of professional or business papers would not be used for household purposes. In the late twentieth century, many people do much work at home, with or without the aid of computers linked to their offices and facsimile machines. Their doing so would not, of course, have surprised men like Gibbon or Lord Hardwicke, whose households included great libraries of well-used documents. I would prefer to deal with this question, when it arises, in the light of a particular context.

Applying this view of the item to the facts found by Beazley J., I can see no error in her Honour's conclusions. I agree that the principle stated in S.W. Hart & Co. Proprietary Limited v Edwards Hot Water Systems (1985) 159 CLR 466 at 478 cannot relieve the Court of the duty expounded in Warren v Coombes (1979) 142 CLR 531 and reaffirmed by Mason C.J. (with the agreement of Deane and McHugh JJ.) in Dawson v Westpac Banking Corporation (1991) 104 ALR 295 at 304; but it does give guidance in respect of the performance of that duty in a case where the
decision at first instance depended on a matter of impression not readily susceptible of precise analysis. To my mind, the principle could not pre-empt the Court's consideration of the application of item 1(a) to the broad categories of safes in question here, but it does require the Court to refrain from any nitpicking reconsideration of the way Beazley J. decided the precise level at which to draw the line between the categories.

As to item 84(1), I am in agreement with what Hill J. has written.

I also wish to express general agreement with the additional comments made by Tamberlin J.

The appeal and cross-appeal should be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 24 March 1995

IN THE FEDERAL COURT OF AUSTRALIA )

) No. NG 626 of 1994

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 627 of 1994

) No. NG 628 of 1994

GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: COMMISSIONER OF TAXATION

Appellant/Cross Respondent

AND: CHUBB AUSTRALIA

Respondent/Cross Appellant

CORAM: BURCHETT, HILL & TAMBERLIN JJ

PLACE: SYDNEY

DATED: 24 MARCH 1995

REASONS FOR JUDGMENT

HILL J:

Chubb Australia Limited ("Chubb") at all relevant times manufactured or imported and thereafter sold or applied to its own use various freestanding safes or security cabinets and wall-mounted or floor-mounted safes designed to be built into walls or floors of buildings.

The Commissioner of Taxation took the view that sales tax was payable by Chubb on all the freestanding safes sold by it or applied to its own use at the rate of 20 percent and issued assessments on this basis covering the period 1 April 1989 to 31 December 1990. Chubb was of the view, on the other hand, that the freestanding safes and cabinets attracted sales tax at the lower rate of 10 percent because they fell within Item 1(a) in the Third Schedule to the Sales Tax (Exemptions & Classifications) Act 1935 ("the Exemptions &

Classifications Act"). Accordingly it objected against the assessments. On these objections being disallowed, Chubb requested the Commissioner to refer the decision on the objections to this Court. Those proceedings were numbered NG952 of 1992.

The wall and floor safes sold or applied to its own use were, according to Chubb, exempt from sales tax because they fell within Item 84(1) or Item 84(3) of the First Schedule to the Exemptions & Classifications Act. It accordingly sought a refund of sales tax it claimed to have overpaid in respect of wall and floor safes sold or applied to its own use for the period 21 May 1988 to 21 March 1991. The application for refund was disallowed; Chubb objected to the disallowance and, on the objection being disallowed, requested the Commissioner's objection decision also be referred to the Court. Those proceedings are numbered NG956 of 1992.

The remaining two proceedings brought to the Court, matters NG957 of 1992 and NG958 of 1992, arise from applications made by Chubb for refund of sales tax paid by it in respect of the periods 1 March 1989 to 14 May 1990 and 21 August 1986 to 24 April 1989 on sales of freestanding safes and cabinets.

When each of the applications came for hearing before Beazley J her Honour ordered the determination of separate questions in each of the proceedings as follows:

- in proceedings NG952 of 1992:

"Whether all or any, and if so which, of the safes and cabinets listed in paragraph (i) of the Attachment and sold by the applicant in the period 1 April 1989 to 31 December 1990 were goods covered by item 1(a) of the Third Schedule to the Sales Tax (Exemptions & Classifications) Act 1935."

The Attachment listed the following items:

"(i)FREESTANDING SAFES AND CABINETS

A.Crado

B.Servisafe

C.Lynx

D.Carlton (57, 131, 184 and 410 litre models)

E.Brunswick (57, 131, 184 litre models)

F.Oxley (50, 57, 88, 100, 131, 145, 237, 342 and 410 litre models)

G.Pacific (35, 50, 57, 88, 100, 131, 145, 184, 190, 237, 300 and 410 litre models)

H.Botany (57, 88, 100, 131, 145, 184, 190, 237 and 410 litre models)

I.Wentworth High Security safe (237, 410 and 510 litre models)

J.Series 1 and Series 2 Anti-Arc safes:-

(i) 3120 model (195 litres)

(ii)4220 model (261 litres)

(iii)5220 model (329 litres)

(iv)6320 model (394 litres)

(v) 6320E model (477 litres)

K.Record Protection files (1, 2, 3 and 4 drawer models

L.Fire Protection Cabinets (or record protection cabinets:-

(i) 62-48 (1086 litres)

(ii)62-24 (543 litres)

(iii)43-24 (374 litres)

M.Computer Cabinets:-

(i) DSC3

(ii)DSC2

(iii)DSC1

(iv)Maxi-cabinet (150 litres)

(v) Super mini-cabinet (70 litres)

(vi)Mini-cabinet (40 litres)

(vii)Micro-cabinet (13 litres)

N.Canberra (sizes 1, 2 and 3) being approximately 32, 45 and 70 litre models

O.Castle (sizes 3 and 4) being approximately 180 litre and 460 litre models

P.Drug cabinets (24-inch and 14-inch)

Q.Gun cabinets (400 litre and 260 litre)

R.Security cupboards (4, 5 and 6 door)

S.Heavy duty filing cabinets (2 and 4 drawer)."

- in proceedings NG957 and NG958 of 1992:

"Whether all or any, and if so which, of the safes and cabinets listed in paragraph (i) of the Attachment and sold by the applicant in the period 21 August 1986 to 24 April 1989 were good covered by item 1(a) of the Third Schedule to the Sales Tax Exemptions & Classifications) Act 1935."

The goods specified in para.(i) of the Attachment are the same as the list of goods referred to in the Attachment in the separate question in proceedings NG952 of 1992.

- in proceedings NG956 of 1992:

"Whether all or any, and if so which, of the safes and cabinets listed in paragraph (ii) of the Attachment and sold by the applicant in the period 21 May 1988 to 21 March 1991 were goods covered by item 84(1) or item 84(3) of the First Schedule to the Sales Tax (Exemptions & Classifications) Act 1935.

(ii)WALL AND FLOOR SAFES

A. Underfloor Safes

(i) the TDR High Security Underfloor Safe

(ii) the Security Underfloor Safe

(iii) Macquarie Major

(iv) Macquarie Minor

(v) Down Under

(vi) Richmond Mark I

(vii) Richmond Mark II

(viii)Myaree 200

(ix) Myaree 300

(x) Melville 140

(xi) Melville 190.

B. Wall Safes

(i) model 1A (one brick)

(ii) model 2A (two brick)

(iii) model 3A (four brick)."

After hearing argument her Honour answered the separate questions in matters NG952, NG957 and NG958 in the affirmative so far as those questions related to the freestanding safes or cabinets known as Crado, Servisafe, Lynx, Carlton (57, 131, 184 and 410 litre models), Brunswick (57, 131, 184 litre models), Oxley (50, 57, 88, 100, 131, 145, 237, 342 and 410 litre models), Pacific (35, 50, 57, 88, 100, 131, 145, 184, 190, 237, 300 and 410 litre models), Botany (57, 88, 100, 131, 145, 184, 190, 237 and 410 litre models), Wentworth High Security safe (237, 410 and 510 litre models), and the gun cabinets (400 litre and 260 litres). The questions were answered in the negative as to the remaining items. Her Honour also answered the separate question in NG 956 of 1992 in the affirmative so far as that question related to Item 84(1) of the First Schedule to the Exemptions & Classifications Act, but in the negative so far as that question related to Item 84(3).

From this decision the Commissioner appealed. Chubb cross-appealed in respect of the questions answered adversely to its interests.

The relevant items in the Exemptions & Classifications Act

Item 1(a) of the Third Schedule to the Exemptions & Classifications Act is, so far as is relevant, in the following terms:

"Goods ... of a kind ordinarily used for household purposes, namely: -

(a) furniture".

Items 84(1) and (3) of the First Schedule to the Exemptions & Classifications Act are in the following terms:

"Metal building materials (including girders, rods, bars, wire, sheets, mesh, lathing and fabricated units composed of
any of those goods, and attachments for such units (for use in the construction or repair of, and to be wrought into, or attached to, so as to form part of, buildings or other fixtures ...

(3) Metal window frames ... metal doors and door frames, of a kind used in the construction or repair of, and wrought into, or attached to, so as to form part of, buildings or other fixtures."

The Decision appealed from

After a careful discussion of the relevant cases concerning the construction of Item 1(a), her Honour posed the question for her determination, so far as the case related to freestanding safes, to be which of Chubb's safes were goods of a kind ordinarily used for household purposes. She expressed the view that having regard to the evidence and "as a matter of commonsense" all of the safes which Chubb contended came within Item 1(a) did not fall within the Item. She gave, by way of example, Chubb's two largest safes and dispensary cabinet. She said:

"In my opinion, to the extent that safes can be classified as a cabinet or unit for securing valuables such as jewellery, coins, stamp collections, private papers and cash (save for large sums as might ordinarily be expected to be found in a bank or kept by a business or other institution) they may properly be described as goods 'of a kind ordinarily used for household purposes'. To the extent that safes are not ordinarily so used, I am of the opinion they do not fall within the exemption."

The judgment then proceeded to discuss the various safes or cabinets to indicate the reasons why some did and some did not fall within the Item.

It was common ground before her Honour and also before us that the wall and floor safes, once installed, became fixtures. The main argument advanced for the Commissioner before her Honour was that Item 84(1) was inapplicable to prefabricated goods sold as discrete units having independent identity, such as wall or floor safes. This argument her Honour rejected, holding that while the wall or floor safes were sold as discrete units they had no effective function or operation as safes unless and until they were installed. Her Honour pointed out that Item 84(1) specifically included fabricated units. Her Honour was of the view that the remaining words of the Item were satisfied so that the wall and floor safes fell within it.

It accordingly became unnecessary for her Honour to determine whether the doors to the wall or floor safe came within Item 84(3). However, her Honour rejected the application of the Item on the ground that the doors themselves were not wrought into or attached to, nor did they form part of, a building.

The freestanding safes

As her Honour observed, the purpose and function of a safe is to protect the contents from loss or destruction by theft or other unauthorised access and from physical damage such as from water and fire.

Safes are to be found in domestic dwellings, in shops and small businesses, and in commercial and industrial premises, as well, of course, as in banks. The evidence showed that safes varied in a number of respects. First, it may be said, that safes vary in capacity. Thus the Chubb models under consideration varied from the Canberra size 1 model, having a capacity of approximately 32 litres and the smallest Pacific model, having a capacity of 35 litres, to the very largest safes, such as the largest Oxley safe, the largest Anti-Arc safe and the largest Castle safe having capacities respectively of 410, 477 and 460 litres. Safes also vary in security rating so that there is often expressed a minimum cash risk for a safe. The Crado safe, for example, is said to be designed to secure a risk not exceeding $10,000 in cash. The Chubb Oxley safe is recommended to hold more than $30,000 cash. On the other extreme, the Chubb Wentworth High Security safe is recommended for the storage of $150,000 cash or more or jewellery with a retail value of $25,000. At the top of the range is the Chubb Anti-Arc safe which, at
least initially, was sold only to banks until changes in security systems in banks caused that market to dry up.

Safes vary also in cost with smaller models retailing for around $300-$450 and with the Chubb Anti-Arc safe at the top of the range selling between $20,000 and $25,000 depending upon the size of the safe.

Some security cabinets are designed to protect specific goods. Chubb sells a security drug cabinet designed to protect dangerous and addictive drugs in dispensaries. It comes in two sizes, the larger being 610mm high, 458mm wide and 158mm deep, and the smaller one being 356mm high, 239mm wide and 166mm deep.

Chubb markets also a gun cabinet which, without modification, can be used to store seven rifles, but with an additional special fitting can accommodate 14 rifles. Such a cabinet meets the needs of firearm enthusiasts. The sales brochure for the gun cabinet, which is directed at customers both in Australia and New Zealand, refers, inter alia, to the New Zealand Arms Regulations 1984 which require licensed dealers in firearms, inter alia, to secure firearms not in the physical possession of the dealer or on display, in an approved box, cabinet, safe or strongroom of sound construction. The same regulations require licensed pistols or firearms not held for sale by dealers similarly to be secured, inter alia, in a steel box or steel cabinet. Regulations such as reg.42A of the Firearms & Dangerous Weapons Regulations (NSW) require that firearms be locked in a secure storage cabinet.

Additionally, Chubb markets what it refers to as a Security Cupboard which is got up in 4, 5 or 6 door models and is designed to provide internal security for storage of cash, security, deeds and other documents. The external dimensions of this cabinet are that it is 1523mm high, 762mm wide and 451mm deep. There is also a heavy duty filing cabinet which comes in two and four drawer models, the two drawer model being 872mm high, 679mm wide and 913mm deep, and the four drawer model being 1478mm wide, 679mm wide and 913mm deep.

Other special cabinets include fire rated cabinets affording extra protection for the contents of the cabinet in the event of fire, and computer cabinets for keeping safe sensitive floppy discs, hard discs, microfilm and stamp collections.

The Wall and Floor Safes

As is apparent from the name, wall and floor safes are designed to be built into the wall or floor of a building as the case may be. They consist of two main components and
are described by her Honour in the judgment appealed against as follows:

"There is the body of the safe which was described as 'a sheet metal box', which is either let into the floor or the wall. The other main component is the door. In contrast to the walls or body of the safes, the door is more elaborately fabricated so as to provide a higher level of security, the security for the other sides of the safes being provided by the surrounding wall or floor. The body of the wall safes are constructed of steel, designed to match the size of brick or modelable brick wall cavities. The door is constructed of heavy steel and is generally fitted with a locking mechanism controlled by a single key lock or combination lock. The body of the wall safe is usually of lighter gauge than the door, as the wall is intended to provide the security barrier to the unit. The door is the primary means of protection against burglary attack.

The upper face of the container of the floor safe consists of a heavy duty steel top frame, generally recessed back into the body to receive the door so that the outer face of the door is flush with the upper edge of the body. The door of the floor safes may be either circular or rectangular and designed to meet different levels of security, the construction material ranging from heavy steel plate to a steel cavity type door filled with highly resistant barrier protection. Generally, the locking mechanism for a floor safe is activated by the action of the lock rather than a separate throw handle. As is the case with a wall safe, the door provides the primary method of protection. The major advantage of these built-in safes over free standing safes, apart from cost, is their ability to be installed in concealed locations. Overall, however, these safes offer a lower level of security than free standing safes.

The applicant uses mild steel plate with a gauge of between 3mm to 6mm in both its floor and wall safes. This is the same type of steel plate used in the construction of ballistic walls and doors. It is also widely used in the building industry in many applications including the fabrication of trusses and beams and columns to hold up ceilings and bulkheads in buildings."

The Evidence led at the Hearing

Because the main thrust of the Commissioner's submissions was that Chubb had not discharged the onus of proof lying upon it of showing that those safes which her Honour found to fall within Item 1(a) of the Third Schedule to the Exemptions & Classifications Act were goods of a kind ordinarily used for household purposes (it being conceded that the safes were properly were described as "furniture"), it is necessary to summarise the evidence adduced at the hearing. No question of credit of witnesses arose and it must be said that there was virtually no cross-examination addressed to matters relevant to the separate questions raised by her Honour for determination.

Affidavits from 13 witnesses were read on behalf of the applicant. Of these, the affidavit of Mr Bladwell can be put to one side because it did no more than list the safes, cabinets etc the subject of the proceedings. A number of the remaining affidavits concerned matters irrelevant to the
separate questions which her Honour stated. The remaining relevant affidavits may now be summarised.

The principal affidavit was that of Mr Powditch, who had been employed by Chubb for over 20 years and was, at the time of swearing of the affidavit, the General Manager, Marketing & Sales for Chubb. Mr Powditch described the general nature of safes and their use both to deny access to valuables by criminal opportunists and to give fire protection. He said that traditionally safes were found in domestic dwellings. The commercial market for safes developed in the 1800s. He said that in the early 1980s Chubb had identified a resurging market for safes in domestic dwellings and that he had recommended that Chubb take advantage of it. He spoke of an increase in the number of customer enquiries for safes in domestic dwellings, an increased availability of safes sold by competitors for use in domestic dwellings, an increased concern on the part of insurance companies that higher levels of security be offered in domestic dwellings, and a concern expressed on the part of the police service that domestic dwellings carry increased security. He had recommended that Chubb also develop improved fire resisting products and market them for use in domestic dwellings. He referred to increased customer enquiries and increased sales of fire resisting products by competitors.

He deposed that he was often asked to advise customers as to appropriate safes or security cabinets for their purposes and, in the course of doing so, was made aware of the goods which customers intended to keep in safes or in fire resistant cabinets. These included cash, jewellery, stamp collections, wills, tax returns, passports, antiques, silverware, firearms, trophies, computer diskettes and software, and significant papers.

In describing particular safes produced by Chubb he referred, inter alia, to the Crado, Lynx and Servisafe safes as being used almost exclusively by individuals for domestic security. He did this, however, in the somewhat confusing context that these safes were increasingly used in hotels and "purchased by a business". He said that all of the safes described in his affidavit evidence had been sold into domestic dwellings.

Referring to the normal use of fire resisting cabinets, he deposed that these were used for the storage of vital paper records. Some of the records referred to in the affidavit were clearly business documents, others (such as passports, home photos, wills, mortgages and financial records) were of a kind which might ordinarily be kept secure in domestic households.

In a second affidavit Mr Powditch expressed the opinion (and her Honour was of the view that such opinion should not carry any weight) that it was impossible to draw a demarcation line between safes ordinarily used for household purposes and those used for business purposes. He said, and it would no doubt be self-evident, that price was an overriding determinant in the purchase of a safe and that the worth, size and composition of valuables to be stored would be relevant in such a purchase.

Evidence was then adduced from a Mr Parkinson who at the time of the trial was retired but who had been a Technical Director of Chubb. He described in an affidavit the method of construction of the various safes and cabinets the subject of the proceedings. His evidence provides little assistance.

A Mr Peter Lewis, the proprietor of a business which deals in secondhand safes, then deposed to the increased market for secondhand freestanding safes for household use. He said that in each of the years from 1986 to 1990 he had sold approximately 750 freestanding safes and fire protection cabinets to householders. He said that, had he had more stock, he could have sold twice that number. According to his evidence the safes sold to householders varied in size from 600mm high to 1200mm high.

Evidence was adduced from a Ms Blake, Group Product Manager of Burns Philp Hardware Limited, which company has a division, BBC Hardware, which has sold safes to the public since 1982. She spoke of an increased number of customer enquiries from the public for safes and of the number of sales of safes sold from 1982 to March 1993. In addition she exhibited brochures giving details of the safes available in BBC stores for sale to the public, which brochures gave prominence both to home safes and domestic or commercial safes. The home safes pictured ranged from 340mm high to 590mm high. The safes described as domestic or commercial ranged from 680mm high to 880mm high and the safes referred to as filling commercial needs were larger, with models from 1000mm high to 1740mm high.

Evidence was adduced also from a Mr Berry, the Sales Manager of CMI Management Company Limited, a competitor of Chubb. Mr Berry deposed to meetings with prospective customers. He said that 45-50 percent of customers were buyers of safes for household purposes. He exhibited a brochure in use by his company and estimated that 15 percent of the freestanding safes sold by his company from 1986 to 1990 had been installed in private homes. He said that safes of all different sizes were installed in private homes and expressed an opinion as to the difficulty in distinguishing safes used in households, on the one hand, and those used in
business premises, on the other, by reference to size and level of protection.

The brochure referred specifically to home safes, pistol safes, lock-away safes and rifle safes. The safes depicted in the brochure and advertised as home safes ranged from safes having a height of 165mm to safes having a height of 315mm. Advertising of other models depicted did not appear to distinguish between home safes, on the one hand, and safes that might be used for commercial purposes, on the other.

Evidence was also adduced from a Mr Daley who had, in his then capacity as a member of the New South Wales Police Force, assisted in founding the Neighbourhood Watch program. Mr Daly spoke of the greater awareness of the need for security in homes, including the use of safes, as a result of rising crime rates and gave details of break and entry statistics in various types of premises. Those statistics showed that 60.1 percent of break-ins occurred in domestic premises.

Evidence was then adduced from a Mr Jenkins, an insurance underwriter with Mercantile Mutual Insurance (Australia) Limited, as to that company's practice regarding insurance on valuable items, including jewellery kept on household premises. Liability under policies, in respect of jewellery, was limited to $7,500 for any one item and $20,000
in aggregate unless the items were either worn or kept in a securely locked safe.

Mr Givens, a loss assessor and claims manager who had reported on domestic burglaries and thefts, deposed that he had seen hundreds of safes in homes of various configur-ations, these being of similar size and type as safes used in shops, for businesses and for industrial purposes. He said that he had seen a large variety of items stored in safes in private homes, including passports, collector's items, such as stamps and coins, significant documents, computer disks, cash books and journals from businesses, as well as firearms and ammunition. He said that some of the items stored had been very valuable.

Finally, reference should be made to a Chubb brochure in evidence which described particular safes marketed by Chubb. Describing the Chubb "Canberra" safe, the brochure spoke of its use for "protection of cash and vital documents against burglary and fire, at a low price". The safe was said to have been designed "especially for the home and the small business". It may be noted that the smallest safe in the "Canberra" range had a height of 622mm and the largest a height of 889mm.

In dealing with the Chubb "Castle" safe, the brochure proclaimed it to be "ideal for shopkeepers, branches of chain stores and small businesses". The two models depicted in this range were 104mm and 153mm high respectively, having capacities of 182 litres and 472 litres.

The security containers referred to in the brochure ranged in height from 447.5mm for a one-drawer "B" class model to 1478mm for a four-drawer "A" class model. The security drug cabinet depicted proclaimed the cabinet as being for the protection of dangerous and addictive drugs in dispensaries. It was clearly not addressed to the domestic market.

The decision of the full court of this Court in Diethelm Manufacturing Pty Limited v Federal Commissioner of Taxation (1993) 44 FCR 450

It was accepted by the parties to the present appeal that the decision of the full court of this Court in Diethelm governed the appeal.

That case considered the application of Item 1(a) to the Third Schedule of the Exemptions & Classifications Act to certain items put up for sale as office furniture. Two questions arose for decision. The first was whether it was sufficient to fall within the exemption that the item in question could be described as "furniture", or whether it was necessary in addition that the item be of a kind ordinarily used for household purposes. The Court unanimously held that it was necessary for furniture to satisfy the language of the Item and that it be "of a kind ordinarily used for household purposes".

The second issue concerned the question whether the chairs under consideration were goods of a kind ordinarily used for household purposes. In delivering a judgment with which Whitlam J agreed, I pointed out that the question to be determined was not whether the particular goods before the Court were ordinarily used for domestic purposes, but rather whether the goods themselves were of a particular kind ordinarily used for household purposes. I emphasised the need to bear in mind the language of the Item.

In discussing the words "goods of a kind" I pointed out the necessity to determine a relevant genus, noting that the wider the genus found the more likely it would be that the class of goods would be found to be commonly used for a particular household function. I declined to accept a submission that because the goods in question were chairs used to sit upon and because sitting was a function performed in a household, the Item applied. I stated the approach to be adopted in the following passage (at 472):

"... I think the proper approach is to ask, in respect of the goods in question, whether they are of a kind ordinarily used for household purposes. This approach requires consideration of each of the particular chairs in question. Of some of them the question may readily be answered in the negative. The high back executive office chair is clearly not a chair of a
kind ordinarily used for household purposes. Rather, it is a kind ordinarily used for office purposes. The question, however, becomes more complicated with smaller chairs of a kind which may, on the one hand, be used in an office, and on the other hand, are in accordance with the evidence, sold by retail outlets such as Ikea, Freedom Furniture and Harvey Norman for what are clearly household purposes. The onus lies upon the appellant to show, in respect of each of the items of goods, that they are of a kind ordinarily used for household purposes."

Ultimately, I took the view on the evidence before me that the appellant had not satisfied that onus.

French J delivered a separate judgment emphasising the objective nature of classification and the need to find "the essential character" of particular items. In his Honour's view the essential character of the chairs in question was that they were office furniture, a character-isation which reflected the market in which the chairs were manufactured and sold and, accordingly, the chairs were not of a kind ordinarily used for household purposes.

The judgments in the case adequately discuss the prior case law and I see no need in the present judgment to repeat that discussion.

Where a question arises under Item 1(a) two issues will arise. The first, which is one of classification, requires the determination of the kind of goods to which the particular goods belong. This is sometimes spoken of as defining the genus to which the goods belong. The determination will be made in a commonsense way. In many cases mere observation of the item will enable the classification to be made. In some borderline cases the task of classification may involve a consideration of evidence.

The second issue involves giving an answer to the question whether the classification arrived at satisfies the language of the Item, that is to say, whether the relevant kind of goods is ordinarily used for household purposes. Again, in many cases, common experience will answer that question. In borderline cases, at least, it will be necessary to consider evidence to reach a conclusion.

The word "ordinarily", in the collocation "ordinarily used" probably means no more than "commonly". This was the meaning given to it by Davies J in OR Cormack Pty Limited v Federal Commissioner of Taxation (1992) 92 ATC 4121. That case concerned the question of whether paint brushes, rollers and painting equipment fell within the Item. In holding that they did not, Davies J said (at 4124):

"The adverb `ordinarily' does not have a precise denotation. It requires a use of the goods which lies between `primarily or principally' on the one hand and mere `use by' on the other. The adverb conveys the meaning of `generally' or `customarily' or `usually'. Sometimes the term `commonly' is used as an analogue, but only, I think in the same way that the adjective
`common' is used in the term `common parlance' as referring to customary or usual speech. ... The words `ordinarily used' ... seem to refer to settled or usual use. But I would accept that the adverb must be applied in relation to the goods described and may have a somewhat different application with respect to some goods than with respect to others. In each case, the task is merely to determine as a matter of fact whether goods in issue fall within the description used by Item 1."

The parties appeared content to accept that the word "ordinarily" in the Item did not mean that the kind of item was used predominantly for household purposes and, as the matter was not fully argued, I am prepared to accept the view of Davies J and that of the parties that in its context what is required to be considered is settled or ordinary use.

Finally, it may be noted that the Item does not require consideration of whether the relevant kind of goods is ordinarily used in households. The Item requires consideration of "household purposes". It draws attention to the purposes for which the kind of goods are used, not the location of that use. Storage of household valuables will clearly be a household purpose; storage of addictive drugs will not.

Just as in the Diethelm case where the evidence made it clear that there were categories of chairs which included office chairs and domestic chairs (although, at least at the fringes, the categories overlapped), so too in the present case it is clear that there are domestic safes, on the one hand, and industrial and commercial safes, on the other. One difference between the two safes is to be found in the type of goods ordinarily kept in each kind of safe. At the extremes the categories of domestic and commercial or industrial safes are so divergent that, as her Honour recognised, there was a category of safe, namely, commercial and industrial safes, that could not be said to be ordinarily used for domestic purposes. At the other extreme there were clearly safes of which on the evidence it could be said that were used for domestic purposes, indeed, were ordinarily so used, albeit that they were capable of use and, in fact, were used by non-domestic users, e.g. hotels, shops and small businesses. The safe keeping of money, jewellery and valuables and important family papers is clearly a domestic purpose. Perhaps the keeping of large amounts of cash in high security safes might be a different matter.

Her Honour distinguished between the different safes and cabinets largely by reference to the type of contents which they were to house. Thus, where a safe, such as the Anti-Arc safe, was intended to store large sums of money or items of value such as stored by banks, her Honour was of the view, correctly, that such a safe fell outside the Item. So, too, cupboards designed to store business documents fell, in her Honour's view, outside the exemption, as did the security
drug cabinet designed for the security of drugs in dispensaries and hospitals. Her Honour took the view that there was inadequate evidence before her in respect of the record protection files, fire protection cabinets and computer cabinets to enable her to be satisfied that these items were goods ordinarily used for household purposes.

It is clear that, in determining whether a particular safe is of a kind ordinarily used for household purposes, it could be relevant to take into account the intended contents of the safe, its security rating, its size or capacity and, related to these matters, its cost. The answer in a particular case may well be one on which minds may differ, for ultimately the determination whether a particular safe or cabinet falls within the Item is a matter of impression. A matter of degree is involved.

Counsel for the Commissioner criticised some of the findings of her Honour on particular safes by reference to the dimensions or capacity of the safes. It was said that it was unlikely that a safe larger than a large sized refrigerator would be of a kind ordinarily used for household purposes. But if the only matter were size, this of itself would not necessarily lead to the conclusion that the safe was other than of a kind ordinarily used for household purposes. No doubt large safes may be found in large houses and small safes in small houses, but that is not ultimately a determinative
matter. What must be asked is whether the particular safe is of a kind ordinarily used for household purposes.

The Commissioner submitted that the evidence adduced before her Honour went no further than to show the following:

(a) that some households contained freestanding safes, although there was no evidence that the actual safes sold by the taxpayer in the relevant period were contained in households;

(b) that some of the taxpayer's safes were ordinarily sold to hospitals, hotels and dispensaries;

(d) that many of the taxpayer's safes were of a size and capacity that they could not comfortably be accommodated in ordinary household premises; and

(e) that wall and floor safes, which were not furniture, were ordinarily installed in households.

Specifically it was said that there was no evidence to support the conclusion that particular models were of a type ordinarily used for household purposes.

These submissions, with respect, confuse the issue for decision. At issue is not whether the particular safes
sold by the taxpayer were for use in households or were ordinarily used for household purposes, but whether they were of a kind ordinarily used for household purposes. Thus, the fact that there was no direct evidence that particular safes manufactured or imported by Chubb were used in households is irrelevant. In fact, as the summary of evidence given above indicates, the evidence is such as to enable an inference to be drawn that at least some of Chubb's safes were in fact used in households, inferentially for household purposes.

In my view the evidence was such as to permit a conclusion to be drawn in respect of particular models of safes that they were of a kind ordinarily used for household purposes in that they were of a kind used in households to contain and keep safe household valuables, moneys and documents.

In my view it was therefore open to her Honour to find in respect of those goods held to fall within the Item that they were of a kind ordinarily used for household purposes. The finding involved a question of judgment based upon a consideration of the description and in some cases photos or drawings of the relevant safe. No error is apparent in her Honour's judgment, although it is possible that minds could differ as to the outcome in a particular case. The question is thus whether this Court on appeal should interfere with the findings of a trial judge, in a case such as the
present, where the decision was not based upon observations of witnesses but the conclusion depends on impression and no error of law has been demonstrated. A view that it should not was advanced by Beaumont J in Federal Commissioner of Taxation v Smith & Nephew Pty Limited (1994) 94 ATC 4507 at 4513 where the question at issue was whether cotton buds fell within an exemption Item relating to cottonwool. His Honour's comments did not form part of the decision of the other judges in that case.

In support, Beaumont J cited the judgment of Gibbs CJ, with whom Mason J agreed, in S.W. Hart & Co Pty Limited v Edwards Hot Water Systems (1984-85) 159 CLR 466 at 478. That case concerned the issue whether, for the purposes of copyright law, there was substantial similarity between drawings, on the one hand, and three dimensional objects, on the other. The question was clearly one of fact and degree. The trial judge had made the comparison for himself. The appeal court had taken a different view. In allowing the appeal and restoring the judgment of the trial judge the Chief Justice said:

"The nature of the issue, involving as it does matters of impression, is one in which particular respect and weight should be given to the decision of the trial judge unless some error in his judgment has been demonstrated. No such error was demonstrated in the judgment of Brinsden J. I, myself, see no reason to differ from his conclusion. In my opinion, his judgment should not have been disturbed."

This passage has been cited with approval by this Court on a number of occasions. Turbo Tek Enterprises Inc v Sperling Enterprises (1989) 23 FCR 331; Pacific Dunlop v Hogan (1989) 23 FCR 553 and Allsop Inc v Bintang Limited (1989) 15 IPR 686 are examples.

Turbo Tek concerned an issue of design infringement and Allsop an issue of patent infringement. Both thus applied the principle in contexts similar to copyright infringement. Pacific Dunlop was, inter alia, a passing off case where it had been held by Gummow J at first instance that the appellant had in an advertising commercial passed off its goods as having a commercial affiliation with those of the respondent, who had become widely identified with the character he had played in the film "Crocodile Dundee". A finding attacked on appeal made by his Honour was whether a significant section of the public would be misled into believing (contrary to the fact), that a commercial arrangement had been concluded between the respondent and the appellant. In refusing to disturb his Honour's finding, Beaumont J (with whose judgment on this part Burchett J agreed) referred to the nature of the issue as involving matters of impression and said that it was an issue in which particular respect and weight should be given to the decision of the trial judge unless some error was demonstrated. His Honour referred to the Edwards Hot Water Systems case. Sheppard J, on the other hand, who dissented in the result, took the view that the appeal court was in as good
a position as the trial judge to assess the evidence and if it reached a different conclusion should give effect to its own views.

The principle should not, of course, be taken too far. To paraphrase what was said in Warren v Coombes (1978-89) 142 CLR 531, albeit in a slightly different context, an erroneous decision should not be upheld, nor should demonstrated error be perpetuated. However, while that case made it clear that it is the duty of an appellate court to decide both fact and law for itself, subject to the case where the trial judge has had the advantage of observing the witnesses, it nevertheless recognises that the appeal court should give "full weight" to the decision of the trial judge and only where the appeal court considers that that judgment was wrong must they give effect to their own judgment.

In my opinion, no error has been demonstrated in the present case in respect of her Honour's findings on the freestanding safes and, accordingly, I would dismiss the appeal so far as it relates to them.

Likewise I would dismiss the cross-appeal. Particular emphasis was placed in the cross-appeal upon a conflict of findings in her Honour's judgment related to the "Canberra" safe. At one part of the judgment her Honour refers to this safe as being "ideally suited for safeguarding small amounts of cash". In another part of the judgment her Honour refers to the "Canberra" safe as being designed principally for the storage of "relatively large sums of cash". The former description accords with the evidence. However, the evidence made it clear that the "Canberra" safes were designed for the storage of office documents and I would conclude that, notwithstanding that these safes are smaller than others which her Honour found to be within the Item, they were not of a kind ordinarily used for household purposes.

An alternative submission was that the relevant kind of goods for consideration should have been taken to be safes generally and that there was no distinction between safes used for household purposes and safes used for commercial or industrial purposes. This is contrary to the approach taken by the full court of this Court in Deithelm and contrary to the inevitable conclusion to be drawn from the evidence in the present case. It need thus be given no further consideration here.

Wall and Floor Safes

To fall within Item 84(1) a taxpayer must show:

(i) that the goods in question are metal building materials or perhaps in the alternative that the goods fall within the bracketed words of inclusion. These words of inclusion appear to extend the Item to goods where there may be doubt as to whether they are metal building materials, and to goods which would not ordinarily be so classified. However the words "metal building materials" should not thereby be given a restrictive meaning, cf Case Z26, 92 ATC 250 at 253.

(ii) that the goods in question must be for use in the construction or repair of buildings or other fixtures. The question whether goods are "for use" will often depend upon the character of the goods, particularly where they are adapted for the particular purpose specified in the Item rather than the subjective intentions of the manufacturer or purchaser: Deputy Commissioner of Taxation v Lincoln Industrial Cleaners Pty Limited [1975] 2 NSWLR 499, although the objective characterisation required to be made would not eliminate consideration, for example, of the intention of a manufacturer: cf Deputy Commissioner of Taxation v Stewart (1984) 154 CLR 385. Stewart's Case makes clear that the question whether particular goods fall within an exemption Item must be determined at the time the goods pass the taxing point. Since that ordinarily will be at a time prior to an end-user being identified (for example, at the time of
importation or wholesale sale) the actual subjective intention of a purchaser would be unknown.

The words "construction or repair" bear their ordinary English meaning. The word "construct" means no more than "build" in the present context but extends to reconstruction. This is clear from the context of the Item which is concerned with building materials. The legislature cannot be assumed to have intended a narrow distinction to be raised in the application of the Item between repair, on the one hand, and reconstruction or renewal, on the other. Cf the distinction in s.53 of the Income Tax Assessment Act 1936 and cases such as Federal Commissioner of Taxation v Western Suburbs Cinemas Limited (1952) 86 CLR 102 and Lindsay v Federal Commissioner of Taxation (1960) 106 CLR 377.

(iii) However, an item which would only be added to a building after the building was completed would not be used in the construction of or would not fall within the Item: cf Deputy Commissioner of Taxation v Academy Plastics Pty Limited (unreported, Kitto J, 26 March 1956).

The goods in question must be "wrought into or attached to, so as to form part of, buildings or other fixtures". The common law concept of fixtures as expounded in Australian Provincial Insurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712 will be relevant: Feltex Commercial Interiors Pty Limited v Federal Commissioner of Taxation (1990) 90 ATC 4925 at 4934. Thus, it will be necessary to show that the relevant goods are fixed with the intention that they should remain in position either permanently or for an indefinite or certainly a substantial period.

The Commissioner submitted that the wall and floor safes, the subject of the present proceeding, fell outside the exemption because they were units of complete manufactured goods, ie safes, which employed in their fabrication metal materials but which had lost their separate identity as metal building materials. A similar submission was made by the Commissioner before Einfeld J in Jetmaster Fire Places Pty Limited v Federal Commissioner of Taxation (1989) 89 ATC 4464. In that case it had been argued that because the goods in issue, namely fire boxes fabricated from mild steel designed to be built into buildings as fire places, had a separate identity as fire places they could not fall, inter alia, within Item 84(1). The argument was, however, rejected in that case as being non-determinative of the issue before the Court.

As a matter of construction, Item 84(1) is not restricted to mere sheets of metal. The words of inclusion make it clear that the Item extends to "fabricated units" so long as they are composed of any of the goods listed in the Item. The mere fact that a fabricated unit might, in the result, be capable of classification by reference to its function when built-in, should not, of itself, suffice to exclude the goods from the exemption. A different question may arise if the goods as a fabricated unit directly fall within some other Item or Schedule to the Exemptions & Classifications Act, but that is not the present case.

On the present facts there is, in any event, difficulty in saying that the so called wall and floor safes are, before installation, in fact, safes. The evidence makes clear that the wall or floor safes, as the case may be, would have no effective function or operation unless and until installed because the body of the item is of light gauge steel, security being offered only through the door and the bricking-in of the safe. Put another way, the item only becomes safe and therefore "a safe" once it is built-in.

The second submission of the Commissioner was that the affixation of the wall or floor safes to the building being for the better use of the items as safes, was neither construction nor repair. The argument seeks to rely on what was said by Kitto J in Academy Plastics, in the passage to
which reference has already been made. Reliance was also placed upon the comments made by Wilcox J at first instance in Magna Stik Magnetic Signs Pty Limited v Federal Commissioner of Taxation (1989) 89 ATC 5000. However, the comments made in each of those cases must be read having regard to the facts there in question. In each it is emphasised that it is necessary before goods fall within a comparable Item that those goods be "for use in the construction or repair of" buildings or other fixtures. That is a statutory requirement. The fact that affixation makes the goods useable as safes is not to the point if, as in the present case, the goods in question are for use in construction. There is no analogy between the present goods and the plastic towel racks considered in Academy Plastics or the adhesive vinyl letters discussed in Magna Stik.

In my view, the floor and wall safes do fall, as her Honour held, within Item 84(1). Accordingly, it is unnecessary to determine whether the doors to those safes might also fall within Item 84(3).

I would accordingly dismiss both the appeal and cross-appeal and order the appellants to pay the costs of the appeal and the cross-appellants to pay the costs of the cross-appeal.

I certify that this and the

preceding thirty-six (36) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date: 24 March 1995

IN THE FEDERAL COURT OF AUSTRALIA) No. NG 626 of 1994

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 627 of 1994 GENERAL DIVISION ) No. NG 628 of 1994

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: COMMISSIONER OF TAXATION

Appellant/Cross Respondent

AND: CHUBB AUSTRALIA LIMITED

Respondent/Cross Appellant

CORAM : BURCHETT, HILL & TAMBERLIN JJ

PLACE : SYDNEY

DATED : 24 MARCH 1995

REASONS FOR JUDGMENT

TAMBERLIN J:

I agree with the conclusions and reasoning of Hill J in this matter.

However, I would like to make two brief comments. Both relate to free standing safes and cabinets. The first relates to the sufficiency of the evidence. The second concerns the "Canberra" safe and the "Gun Cabinet".

In relation to the first matter, it is important to appreciate that the Court does not come to consider questions of classification in a vacuum. The determination of borderline cases, in the final analysis, must necessarily be based to a large extent on experience and common sense after paying close regard to the factual material placed before the Court in the particular matter.

The evidence disclosed that there is a broad distinction in the security safe and cabinet industry or market between home or domestic safes and cabinets on the one hand and commercial, industrial and banking safes and cabinets, for example, on the other hand.

The exemption is directed not to the question what is an ordinary household purpose, but rather to the issue of whether a particular type of safe or security cabinet is "ordinarily used" for household purposes. This involves a consideration of "household purposes". The provision recognises by the use of the word "ordinarily" that use for "household" purposes can encompass a broad spectrum. Some types of safes may be used for household purposes but not commonly so. Some wealthy households, for example, may use large expensive safes akin to bank vaults with a high security rating to safeguard precious jewellery, large amounts of cash, artworks, and documents of great worth, whilst more modest homes may require less expensive smaller safes or security cabinets for valuables, passports, home title deeds and items of sentimental value. The use of the former type of safe when used for storage of household contents might be considered an exceptional rather than an "ordinary use" for household purposes. The exemption focuses on "ordinary use" and the criterion to be applied is whether the kind of goods in question is "ordinarily used" for household purposes.

In making a determination it is clearly permissible to take into account matters such as intended contents, security rating, strength, materials, weight, height, breadth and depth, capacity, price and the value in a monetary sense of the items to be protected. None of these matters is determinative but they are matters against which the classification ought to be made. In particular instances of doubt it will be necessary to give greater weight to one or more of these considerations.

Because the exemption is concerned with the "kind" of goods it is not appropriate or necessary to limit the evidentiary material to that which relates solely to the particular products of a single manufacturer. It is permissible to consider products of a similar type made by other manufacturers in respect of size, dimensions, cost, capacity and security rating, for example. It will often be helpful to take into account the segment of the safe and security market at which the goods are targeted in advertising and promotional material.

In the present case her Honour, the trial judge, had before her a substantial amount of evidence on which to base her conclusions. This comprised promotional advertising brochures which, in many instances, included photographs of the cabinets and safes and of the suggested usage and contents for which the item was considered appropriate. This promotional and advertising material contained data as to internal and external dimensions and capacity. There were photographs showing the interiors of the different types of safes and cabinets and there were a number of drawings together with printed descriptions both as to the physical features of the items and as to uses which may be made of the safes and cabinets.

Also in evidence was a substantial amount of affidavit material, the contents of which have been summarised in the judgment of Hill J.

Having regard to the material before her, I consider that when looked at in the light of common sense and practical experience there was ample evidence before her Honour on which to reach her ultimate conclusions.

The second matter relates to the "Canberra" safe and the "Gun Cabinet".

The advertising material in evidence in relation to the "Canberra" safe states that there are three sizes ranging between 622mm in height and 889mm in height. There is a detailed description as to the construction, locking, fire resistance, security and strength of these safes. The description in the brochure of the safes indicates that the "Canberra" safes are especially for the home and the small business. They are stated to offer many features of a top security safe at a low price. They are said to be a "sophisticated" safe with a relocking device which activates upon entry by the use of explosives or force. They have a reinforced construction, containing a special fire/thief resistant material. They are expressed to be ideally suited for safeguarding small amounts of cash, valuable documents, debtors ledgers and vital records kept in the general office. The photograph illustrating the "Canberra" safes shows 3 large lever arch files, 5 accounting books, a small metallic container and 3 small cardboard boxes or cartons. In relation to the "Canberra" safes there is in my view sufficient evidence to justify the conclusion that these kinds of safes are ordinarily or commonly used for commercial purposes, rather than household purposes, although they may be used for both.

The second matter relates to the Chubb "Gun Cabinet". This is a cabinet of substantial size, having a height of 1600mm and weighing 200 kilograms. There is a standard fitting which has one removable shelf and fittings to store 7 firearms and there is provision for special optional fittings for up to 14 firearms. Rifles are shown in the photograph. The advertising promotional material emphasises that insecure firearms are a potential danger to individuals and their families. The "Gun Cabinet" is stated to have been released to meet the needs of the firearm enthusiast. It is said to be "attractively finished" in warm grey to complement any decor. If one were to ask whether a gun cabinet such as this is found in an ordinary household, the answer may well be in the negative. However, that is not the relevant question, since there are obviously many households in which guns are kept, particularly in country areas, and which could be accommodated in such a cabinet. The marketing emphasis appears directed to family safety and the home and the reference to an attractive finish which might complement any decor, is consistent with such an intended use and classification.

In my view, there was ample evidence before her Honour to justify the conclusion which she reached in relation to the "Gun Cabinet" and she made no error of law.

I certify that this and

the preceding five (5)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date: 24 March 1995

Counsel for Appellant: Mr A H Slater QC

Dr H R Sorenson

Solicitor for Appellant: Australian Government Solicitor

Counsel for Respondent: Mr N Forsyth QC

Mr A Robertson

Solicitor for Respondent: Ternes and Salier

Date of Hearing: 14 February 1995

Date Judgment Delivered: 24 March 1995

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