FEDERAL COURT OF AUSTRALIA

H J Heinz Company Limited v Chief Executive Officer of Customs

[2005] FCA 291

CUSTOMS TARIFF ACT – ‘fish in pieces’ – ‘minced’ – statutory interpretation – special Trade meaning – question of law – effect of factual determinations

Customs Tariff Act 1995 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Re Grocery Holdings Pty Ltd and the Chief Executive of Customs (2003) 74 ALD 212

Grocery Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCAFC 85

Re Pacific Film Laboratories Pty Ltd and Collector of Customs (1979) 2 ALD 144

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389

Collector of Customs v Pozzolanic (1993) 43 FCR 280

Gerhardy v Brown (1985) 159 CLR 70

Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd (2004) 207 ALR 687

H J HEINZ COMPANY LIMITED v CHIEF EXECUTIVE OFFICER OF CUSTOMS

NSD 1619 OF 2004

SELWAY J

23 MARCH 2005

ADELAIDE (HEARD IN SYDNEY)

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The application to ‘appeal’ from the decision of the Administrative Appeals Tribunal is dismissed.

2.         The applicant to pay the respondent’s costs.

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

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     This is an ‘appeal’ from a decision of the Administrative Appeals Tribunal (AAT) constituted by a senior member and given on 12 October 2004 (2004) 57 ATR 1109; [2004] AATA 1063).  In October 2000 the applicant imported into Australia 101 cans and pouches of cooked tuna variously labelled as ‘chunk’, ‘shredded’, ‘sandwich’ and ‘flaked’ tuna.  The question before the AAT was whether tuna was ‘fish whole or in pieces, but not minced’ for the purposes of the Item 1604.1 of Chapter 16 of Sch 3 of the Customs Tariff Act 1995 (Cth) (the Act).  If it was, then customs duty was payable at the rate of 5 per cent.  If it was not, then it could be imported free of duty.  The AAT found that the tuna was  ‘fish in pieces’ and that it was not ‘minced’.  The applicant says that the AAT made an error or errors of law in reaching that conclusion.  For the reasons given below I am not satisfied that there was any error of law that relevantly affected the decision reached by the AAT.  The application is dismissed.

2                     Notwithstanding that it is described as an ‘appeal’ the proceedings before this Court are in its original rather than its appellate jurisdiction.  The jurisdiction of this Court is limited to appeals ‘on a question of law’: s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). 

3                     There is no dispute that the duty (if any) payable upon the importation of the tuna items fell to be determined under Sch 3 of the Act: see s 16(a) of the Act.  The relevant part of Sch 3 is Chapter 16 which is headed ‘Preparations of meat, of fish or of crustaceans, molluscs or other aquatic invertebrates’.  The relevant part of Chapter 16 is Heading 1604 which provides, so far as is relevant:

‘1604   PREPARED OR PRESERVED FISH; CAVIAR AND CAVIAR SUBSTITUTES PREPARED FROM FISH EGGS:

1604.1         - Fish, whole or in pieces, but not minced:

…

            1604.14.00      -- Tunas, skipjack and bonito (Sarda spp)                  5%

…

1604.20.00      - Other prepared or preserved fish                             Free’

4                     It was not disputed that the tuna, being cooked, was ‘prepared fish’.  The AAT found that the imported items were tuna fish in pieces.  If the items were ‘fish in pieces’ and were ‘not minced’ (as the AAT found) then the relevant duty was 5 per cent (as the AAT found).  If the items were ‘minced’ or were not ‘fish in pieces’ then the item could be imported free of duty under item 1604.20.00 – ‘free’.

5                     It will be necessary to consider below some aspects of the reasons of the Tribunal in greater detail.  Subject to that more detailed discussion, the following steps are apparent from the reasons of the AAT in reaching its conclusion:

(a)                The phrase ‘fish in pieces’ bears its ordinary meaning.  It is not limited to ‘large pieces’;

(b)               Tuna can be distinguished from other fish products, such as hake, cod or mackerel which were commonly ‘minced’ e.g. for further processing into fish fingers or fish patties or related products.  Tuna is not commonly minced because any attempt to mince it prior to cooking (as occurred in respect of other fish) would not enable the inedible red meat to be separated.  If it was ‘minced’ after cooking it is likely that the result would be a paste.

(c)                The tuna in the imported items had retained its ‘structural integrity’.  Although the size of the tuna flesh contained in the cans had been reduced by various means, it ‘had an identifiable structure … which minced tuna would not have’.

(d)               In accordance with the ordinary and usual meaning of the words, the tuna in the imported items was ‘fish in pieces’, but was not ‘minced’.

6                     In this ‘appeal’ the applicant says that this analysis by the AAT involved a number of errors of law.  The alleged errors can be dealt with under four headings.

7                     The first heading is that the AAT did not properly consider whether the word ‘minced’ bore a specialised meaning in the relevant trade.  The applicant argued before the AAT that the word ‘minced’ bore a special trade meaning of ‘particles of skeletal muscle which have been separated from and are essentially free from bones, viscera and skin’ (see below).  The applicant says that the AAT did not properly consider this argument.  It is true that the reasons of the AAT gave no express reasons for rejecting this argument.  However, the AAT did set out in some detail the relevant principles as to whether words in legislation should be interpreted in a specialised trade meaning; it did discuss the evidence related to the question and it did refer to the decision of the AAT in Re Grocery Holdings Pty Ltd and the Chief Executive of Customs (2003) 74 ALD 212 (Grocery Holdings T) at 223-224, where the AAT expressly found that there was no accepted trade meaning and that the ordinary meaning applied.  Finally, it is clear from the Tribunal’s reasons that in determining whether the tuna was ‘minced’ it applied the ordinary meaning of that word.  As the Tribunal put it:

‘I was however satisfied that none of the products before me was minced in the ordinary English sense of the word although some of the packages had pieces of different sizes in them, so that chunk tuna for example might have added flakes or shreds which were put in at the end of filling process as seen in the DVD to make up the correct weight. I found that applying ordinary English meanings, the chunk was a different size from flakes or shreds and that all retained their structural integrity ...’

8                     In my view the inference is clear that the Tribunal concluded either that there was no special trade meaning of the word ‘minced’ or, if there was, that it did not have application to tuna or (perhaps) to cooked fish.  

9                     Accepting that the Tribunal held that the word ‘minced’, at least in the context of this case bore, its usual and ordinary meaning the second heading of alleged errors identified by the applicant was that the Tribunal was in error, on the facts of this case in holding that the relevant products were not ‘minced’.  In this regard, the applicant pointed to two ‘subsidiary’ legal errors which, it alleged, the AAT had made.  The first was that the AAT confused the question whether there was a special trade meaning as to the word ‘minced’ with the different question of whether there was a special trade meaning of the words ‘tuna mince’.  The second was that the AAT had mistakenly understood that it was bound by the decision of the Full Court in Grocery Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCAFC 85 (Grocery Holdings) to find that the word ‘minced’ bore its usual and ordinary meaning.  Both of these subsidiary arguments are addressed below.  However, the critical question is whether the AAT made a legal error when it concluded that the word ‘minced’ bore its usual and ordinary meaning, rather than some specialised trade meaning.

10                   The first thing to be said about whether a word in a statute has been used in its ordinary or usual sense or in some specialised sense is that this is a question of law involving the identification of Parliament’s intent.  Several things flow from this.  First, the inquiry as to whether there is a specialised trade meaning, and whether that was the meaning intended by the Parliament cannot be reduced to fixed and immutable rules notwithstanding how useful such rules might be as guides: contrast Re Pacific Film Laboratories Pty Ltd and Collector of Customs (1979) 2 ALD 144 at 155-156.  Secondly, the only relevance of a trade meaning is that the Parliament intended to adopt that meaning.  Consequently it is necessary to ask oneself whether the relevant trade meaning is one that Parliament might have intended.  In this case, for example, reference was made to various meanings used internationally and in other countries.  There was nothing before the Tribunal to suggest that the Parliament was aware of any of these meanings or even that they were generally adopted in Australia whether in the fish processing industry (to the extent that it still exists in this country), or the fish importation industry, or the fish retail industry, or whatever other industry may be thought to have been in Parliament’s contemplation.  Thirdly, even if a specialised trade meaning can be identified, it is still necessary to determine that the Parliament intended that the word should be understood in that sense.  This may be readily done if the statute is a revenue statute or is otherwise specifically directed to that trade and if the evidence makes it clear that the relevant specialised meaning is universally or at least generally understood in that trade: see Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 (Agfa) at 398-399.  But even then, considerations of the mischief to which the legislation is directed and its evident purpose may suggest that the Parliament did not intend that the specialised meaning should apply: see Agfa at 401.

11                  Finally, once it is accepted that the meaning of a word in a statute is a question of law, then it necessarily follows that the identification of a specialised trade meaning is also a question of law: see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.  Once that question of law has been authoritatively determined then, subject to reconsideration by some higher court, that determination cannot then be challenged by making further factual findings in relation to it.  The meaning of a statute does not vary from case to case depending upon what evidence is called.  Nor can a federal court be constrained in its constitutional role when interpreting and applying statutes either by the evidence called by parties before an administrative Tribunal or executive officer, or by the findings of fact of such a Tribunal or officer on such evidence: see Brennan J in Gerhardy v Brown (1985) 159 CLR 70 at 141-142 who described such facts as ‘statutory facts’.  A court can determine such ‘statutory facts’ for itself.  In doing so it is determining what the law is, rather than some issue of fact between the parties.  Usually, of course, a court hearing a matter on ‘appeal’ from the AAT can rely upon the facts and the findings made by the AAT without having to carry out any further factual inquiry and without needing to grant leave to the parties to put further factual information before it.  However, the inquiry as to whether or not there is a special trade meaning of a word used in a statute where the purpose of that inquiry is to determine what the meaning is of that word is in a statute, is an inquiry as to a question of law, not ‘fact’. 

12                  The Full Court of this Court in Grocery Holdings assumed that the word ‘minced’ in cl 1604.1 bore its usual and ordinary meaning.  On facts very similar to those in this case, the AAT had determined that there was not a generally accepted specialised meaning of the word ‘minced’ and that the word should be understood in its ordinary and usual meaning: see Grocery Holdings T at 223-224.  (I note that in that case) the Department had argued that the word did bear a specialised meaning.  The ‘appeal’ to the Full Court would not seem to have challenged this finding – rather the issue before the Full Court would seem to have been limited to the question of what the ordinary meaning of the word ‘minced’ actually was (an issue which is also raised in this case: see below).  Nevertheless, the Full Court did refer to the relevant reasoning of the AAT (at par [4] of the Full Court’s reasons) without any apparent objection or concern.  The Full Court was not required to determine that issue authoritatively.  To this extent the AAT in this case may have been wrong to say (as it did) that it was ‘bound’ by the decision in Grocery Holdings.  On the other hand, the argument by the applicant that the decision in the previous case was irrelevant to the decision in this one seems to me to misunderstand that the issue of the meaning of the word ‘minced’ is a legal issue, not a factual one.  The question being one of law, the AAT was entitled to refer to the reasoned decision of the AAT in Grocery Holdings T and to the assumption made by the Full Court in Grocery Holdings as support for its own understanding of what the word ‘minced’ means in the Act. 

13                  In any event, I do not think anything turns on the issue.  The AAT did proceed to consider the issue on first principles.  The AAT said that ‘what I have done is make an independent decision on identification and classification of the canned and pouched tuna subject of this dispute, based on the description of the goods before me, informed inspection, applying the Interpretation Rules, and following the principles espoused in the various cases’.  On that basis for the ‘appeal’ to succeed, the applicant needs to show that the conclusion reached by the AAT on the primary issue of the legal meaning of the word ‘minced’ was in error.

14                  In its reasons the AAT referred on a number of occasions to the term ‘minced tuna’ as if its inquiry was whether that phrase had an accepted meaning within the fish processing industry.  It contrasted the words ‘minced tuna’ with other phrases such as ‘minced hake’ which were used in the industry.  To a certain extent this analysis reflected the evidence given by the applicant’s witnesses, who were largely involved in tuna processing and who gave evidence that they did not understand the word ‘minced’ to have a specialised meaning in that industry.  The witness statement of Moffat provides a good example.  He said that ‘There is no generally accepted meaning for the expression ‘minced fish in Australia.  I am not aware of the term being used in relation to tuna.’  He was not alone.  As the AAT noted, ‘Mr Jeffriess agreed with Messrs Real and Soroka that the term minced has no accepted meaning in the tuna processing industry.’ 

15                  Clearly, the relevant word requiring interpretation was ‘minced’, not ‘minced tuna’.  However, that did not mean that the analysis by the AAT of the use of the term ‘minced tuna’ was irrelevant.  First, it is clearly inferred from the evidence that a significant proportion of the ‘prepared fish’ imported into Australia is tuna.  The fact that the word ‘minced’ is not used in relation to tuna goes a considerable way to suggesting that there is no relevant trade meaning of the word which Parliament can be presumed to have adopted.  Second, even if the word ‘minced’ did have some specialised meaning, it may have been a specialised meaning only in relation to certain fish, or to fish in certain conditions.  For example, the witness Wailes gave evidence which at least suggested that the words ‘minced fish’ had a particular and specialised meaning in relation to fresh (as distinct from cooked) fish. 

16                  The AAT did not explain whether the word ‘minced’ had no specialised meaning at all or that it did have a specialised meaning that did not include cooked tuna.  However, the AAT did explain why cooked tuna was not described as ‘minced’.  It was because the inedible red meat which formed part of fresh (meaning uncooked) tuna could not be separated from the rest of the meat prior to cooking.  Consequently, tuna could not be ‘minced’ prior to being cooked (as occurred in relation to the other fish described as ‘minced’, such as hake).  If tuna was ‘minced’ after cooking it would be a paste or paste-like.  (It should be noted that the word ‘minced’ was used by some witnesses and (on occasion) by the AAT as a verb referring generally to the result of the product having passed through a machine called a ‘mincer’). 

17                  In my view the analysis by the AAT of the use of the term ‘minced tuna’ within the industry was relevant.  The consequence of that inquiry was either that there was no specialised meaning within the relevant industry or, alternatively, if there was a specialised meaning it was limited to particular types of ‘fresh’ (as distinct from cooked) fish. 

18                  In relation to the question whether the evidence supported a specialised meaning of the word ‘minced’ limited to particular types of fish, the evidence of at least Soroka, Moffat and Real at least suggested that the use of the word ‘minced’ in the industry in some contexts (such as ‘minced hake’) showed a broader understanding of the word ‘minced’ than its usual and ordinary meaning.  So, for example, Mr Soroka, in commenting on the evidence of another witness, said evidence that the texture of fish flesh in minced hake (used, for example, in fish fingers) was clearly visible to the naked eye.  For my part I would not view that example as necessarily being inconsistent with the ordinary and usual meaning of the word ‘minced’.  I would certainly not be prepared to find that the description of such fish as ‘minced’ meant that the word ‘minced’ bore some specialised meaning in the relevant industry different from its usual or ordinary meaning.  However, as already discussed, even if it did so, that would not lead to the result that the word ‘minced’ was generally understood in the relevant industry in that specialised meaning. 

19                  The fundamental issue in relation to this heading is whether the evidence that was before the AAT in this case identified a ‘special meaning’ of the word ‘minced’ in the relevant industry that was both adopted by the Parliament and applicable in this case.  In my view it did not.  True it was that there was some evidence particularly by the witnesses Soroka (called by the applicant) and Wailes (called by the respondent), that the word ‘minced’ was used in a broader sense within the fish processing industry (even if there was a lack of clarity about what that industry was) so as to have the meaning in the ‘Codex Standard’ published by the United Nations Food and Agricultural Organisation.  That specialised meaning was ‘particles of skeletal muscle which have been separated from and are essentially free from bones’.  Plainly the definition in the Codex Standard is a broader definition than the usual and ordinary meaning of the word ‘minced’ as applied by the AAT.  It would include reasonably large pieces of fish that were still easily identifiable as ‘chunks’ of fish. 

20                  However, it could hardly be said that that meaning had general support from the witnesses.  Although Wailes accepted that that meaning was applied in the fish processing industry, he seemed to limit that meaning to fresh (in distinct from cooked) fish.  Only Soroka seemed to apply that meaning generally to the entire fish processing industry, although even he accepted that the term was not used in relation to tuna processing.  There were other witnesses, including witnesses called by the applicant, who expressly said that there was no generally accepted meaning of the term ‘minced’ in the industry and who appeared to adopt the ordinary meaning of the term, although some argued that that ordinary meaning would include the relevant products (see below).  For example, the witness Moffat (called by the applicant) said in his witness statement that ‘there is no generally accepted meaning for the expression ‘minced fish’ in Australia’. 

21                  In my view it was plainly open to the AAT, on the evidence presented, to be satisfied that the word ‘minced’ in its application to tuna bore its usual and normal meaning and that it did not bear a special trade meaning.  To the extent that the issue is one of law for me to determine, I am of the view that the evidence given in this case was not sufficient to show that there is a special industry meaning of the word ‘minced’ such that the word should be understood in that sense.  Consequently in my view the word ‘minced’ should be understood in its usual and ordinary meaning. 

22                  The third heading of alleged errors relates to the application of the usual and ordinary meaning of the word ‘minced’.  Assuming then that the AAT was correct in applying the usual and ordinary meaning of the word ‘minced’ the applicant argues that the AAT did not correctly identify what was the usual and ordinary meaning of that term.  This raises the question whether any such error (assuming that it can be established) involves an error of law or of fact.  I attempted to summarise the relevant principles in Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd (2004) 207 ALR 687 at [139]:

‘I remind myself that the identification of the correct meaning of a statute (and of the words and phrases within it) is a question of law.  On the other hand where the correct meaning of a particular word is its usual or ordinary meaning then the question whether particular facts fall within that meaning is usually a question of fact.  See generally Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 (‘Agfa-Gevaert’) at 394-396.  Of course a determination that particular facts fall within the ‘usual meaning’ of a word or phrase may disclose that the decision maker has not properly interpreted the statute in which case a decision which might otherwise be characterised as one of fact nevertheless involves an error of law.’

Although I was in dissent in that case I do not understand that the above description of the legal position was contentious: see the joint judgment at [118].

23                  The applicant says that in this case the AAT did not properly interpret the statute because it held that ‘minced’ meant that the fish had to be a paste.  If it had so held then that might well suggest that it had misunderstood the usual and normal meaning of the word ‘minced’.  In my view a paste in ordinary parlance involves a smooth, soft mass.  Although it is probably a matter of degree, a paste would not usually be understood as being composed of ‘pieces’, even very small pieces.  Consequently a fish paste would not normally be thought of as ‘minced fish’. 

24                  However, it is clear that the AAT did not confuse ‘minced fish’ with paste.  As already discussed, it accepted the evidence of why tuna for human consumption would not be minced prior to cooking and it accepted that the attempt to mince tuna after cooking (so as to create very small pieces) would have the practical effect that the tuna would be a paste.  However, this did not mean that the AAT was in error in identifying or applying the usual and normal meaning of the word ‘minced’.  The AAT held that the usual and normal meaning of the word ‘minced’ was the meaning given in the dictionaries which it cited.  The general effect of those definitions was that the word ‘minced’ meant cut up or chopped into vary small pieces.  That accords with my understanding of the usual and normal meaning of the word.  That is the meaning that the AAT purported to apply.  In doing so it concluded, as a matter of fact, that the relevant products did not meet that description. 

25                  Photographs of some of the relevant products (described as cans of tuna ‘chunks’) were tendered into evidence.  An attempt was made to tender photographs of some of the other products (‘shredded’, ‘sandwich’ or ‘flaked’ tuna).  For reasons that were unclear, this was objected to and the tender was not permitted.  The relevant frozen products (which were tendered) having been, for obvious reasons, subsequently destroyed by the AAT the parties agreed to my looking at the other photographs for the purpose of informing myself of what evidence was actually before the AAT.  As already noted, the question whether particular facts fall within the ordinary and normal meaning of a word is a question of fact unless those facts are such as to suggest that the tribunal must have misunderstood the relevant word.  Having looked at the photographs they do not suggest to me that the conclusion reached by the AAT was so erroneous that it can be inferred that the AAT misunderstood the meaning of the word ‘minced’.  In most if not all of those photographs the tuna would not be described as ‘minced’ in the usual and normal meaning of that term.  The pieces shown in those photographs are not ‘very small pieces’.  If there was any error in its analysis of these issues (and there is nothing before me to suggest that there was) it was an error of fact not of law.

26                  The fourth and final heading of alleged errors relates to the meaning of the phrase ‘fish in pieces’.  In this case much of the analysis by the AAT related to the meaning of the composite phrase ‘fish whole or in pieces, but not minced’.  The applicant argued before the AAT that the phrase had to be understood in this composite sense.  It also argued that the word ‘pieces’ meant large pieces.  The applicant argued that the imported fish did not include large pieces.  The AAT held that ‘pieces’ did not mean large pieces, but could include small pieces so long as they were recognisable and identifiable as fish pieces. 

27                  The applicant says that the AAT made an error of law in its interpretation of the phrase ‘fish in pieces’.  The applicant says that the AAT should have found as a matter of law that ‘fish in pieces’ meant large pieces of fish described as fillets or loins in contradistinction to the word ‘minced’ which referred to ‘very small pieces’ and other words (such as ‘chunk’) which, the applicant argued, had different meanings again.  The applicant said that such an interpretation would have the important practical benefit of reducing the extent to which it was necessary to make ‘subjective judgments’ in applying the relevant definitions, presumably because the amount of ‘prepared fish’ to which duty might be applicable would be considerably reduced.  The applicant also argued that such an interpretation gave some work for the word ‘other’ in item 1604.20.00 to do. 

28                  There are at least two problems with this argument.  First, the word ‘minced’ refers to ‘very small pieces’.  Even assuming that there were mutually exclusive categories of ‘fish in pieces’ and ‘minced fish’ there is no reason to conclude that ‘fish in pieces’ means large pieces.  There is no obvious reason why the Parliament would expressly deal only with large pieces and very small pieces and say nothing whatever about everything falling in between.  More fundamentally, it is clear that the terms are not mutually exclusive.  It is clear from the words ‘fish ... in pieces, but not minced’ that the Parliament contemplated that ‘fish in pieces’ could include minced fish. Otherwise there would have been no need for the exclusion of ‘minced fish’.  Nor does this mean that the word ‘other’ in item 1604.20.00 is then devoid of meaning.  It includes ‘minced fish’.  It also includes fish paste. 

29                  The AAT concluded that ‘fish in pieces’ did not have any particular trade or industry meaning.  It concluded that the meaning of that phrase in clause 1604.1 was its usual and ordinary meaning.  It referred to relevant dictionary meanings and concluded that the usual and normal meaning did not require that the piece be a large piece, providing that it retained its structural integrity sufficient to be described as ‘a piece’.  The AAT concluded that the fish products the subject of the duty were properly described as ‘fish in pieces’.  In my view there was no error in this analysis by the AAT.  Further, although it is not a matter for me, the relevant fish products as revealed in the photographs tendered before the AAT or otherwise to which I have had regard by the consent of the parties, seem to me to show ‘fish in pieces’. 

30                  The AAT also observed that the same approach had been taken in Grocery Holdings and that it was bound by that decision.  As discussed above, in my view the AAT was not bound by that decision as to the meaning of the phrase ‘fish in pieces’, but it was relevant to its consideration.  However, for the same reasons as those given above, I do not think that any error in this regard had any effect upon the result.  As the AAT itself noted, it also considered the matter afresh from first principles.  No relevant error has been identified in the manner in which it did so.

31                  For these reasons no relevant error of law has been identified.  The application must be dismissed with costs.

Associate:

Dated:              23 March 2005