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[1980] FCA 117
Federal Court of Australia
1980-07-01
Sheppard JJ, Sheppsrd JJ, Sheppard J, Smithers J
Original judgment source is linked above.
Oo sb "9 be iw Ay rr read a cu (e) Tr ~Pi) '4 that case the mechine can be seen te ko subst
¥ a) i) be e rror in point of Law. I
do not think that 1t much matters whether this state of affairs is described as one 1n wiich there is no evidence to support the determinatio1 or as one in which th> evidence 1S inconsistent with and contradictory of the determination, or as one 1n which the true and only reasonable conclusion contradicts the determination, Rightly understood, eash phrase propounds the same test. For my part, I prefer the last of the three, since I think that 1t 1s rather misleading to speak of there being no evidence to support a conclusion whon in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances 2n which they are found to occur."
I would comment in passing that I see the last sentence of the extract from Lord Radcliffe's reasons as having particular relevance to the facts of this present matter. It assists in arriving at the proper decision on this aspect of the appeal. However 1t 18 appropriate, because of the nature of the error of law alleged here, that I draw attention to the reservations of
Dixon J. (as he then was) 2n Commissioner of Taxation v Miller (1946)
73 C.L.R. 93 when considering whether an appeal lay to the High Court from a decision of a Board of Review. At page 104 he said:
"As the Board of Review 1S an administrative body 1t
may be doubted whether a decision by it can be said to involve a question of law because it 1s based on insafficient evidence. But, no doubt, if the facts coming
before the Board were incapable »f the legal comples.ion Placed upon them, that would itnvelve a question of law and the difference 1S not great."
This point was neither taken nor argued before us and T am
relieved by my ultimate decision not to Nave to consider it.
However in circumstances where the Triminal was ontitled to anform
atself on any matter in such manner as it thought fit (Administrative
Appeals T ibunal Act 1975 s.33(c)) and particularly whece as
here the parties expressly agreed that anything the Tribunal saw
on an inspection of the vehicles might be regarded as evilence, 1t
may 1n subsequent matters require consideration, Hereafter I shall 's
assume, probably without justification that Sir Owen Dixen's doubt
was unfounded.
For the applicant in this matter to succeed it 1S nacessary that it establish that there are no reasonable grounds for the Tribunal's finding that the vehicles should be classified within paragraph 84.22.521, an other words that th=re 1s no evidence upon which 1t could reasonably rely to support its conclusion that the vehicles were imported in an incomplete or unfinished state. It is quite irrelevant and nothing to the point that this court might prefer to come to a different or contrary conclusion; the applicant must establish that such conclusion is the only true amd reasonable
conclusion,
Any conclusion as to whether th> vehicles are ancomplete or unfinished relates to the identification of the vehicles and the subsequent question of the proper classification
under the Tariff of the same does not arise for consideration at
this stage. Unless there 1S no evidence upon which the Tribunal can reasonably support its finding, 1t will not be in error ona question 2f law. It follows that 1f there 1s some evidence upon which the Tribunal can rely, the question whether the Tribunal has correctly determined that the vehicles were imported in an ancomplete or unfinished state 1S 32 question of fact upon which
there 1s no appeal to this court. As Diplock L.J. (as he then
was) said in Reg v Deputy Industrial Injuries Commissioner, Ex parte Moore [1965)1 Q.B. 456 at p.488:-
"If at (the evidencé] is capable of having any probative value, the weight to be attached to it 185 a matter for the person to whom Parizament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court docs not entitle it to usurp this responsibility and to substitute its own view for his."
It 1s my firm view that this court when hearing appsals from a Tribunal constituted for the purpose ».f reviewing decisions of this nature, should adopt a restrained approach. Parliament contemplated that only 1n exceptional circumstances should the decision of the Tribunal not be the final decision. This doses not mean that when an error of law is iduntified, the court should be reluctant to intervene. In fact, 1t 1S under a duty to do so.
Rather 1t should heed the comments of Davies L.J. (as he then was)
an Reg v Industrial Injuries Commissioner, Ex parte Amalgamated Engineering Union (No. 2) [1966] 2 Q.B. 31 at p.50:-
"T should like to echo the words of my Lord, Lord Denning M.R., in saying that I deprecate the practice, and hope it would not continue, of attempting to magnify or inflate questions of
fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable
for decision by the various bodies and authorities set up under the Act of 1946."
As Lord Radcliffe said in Edwards v Bairstow supra at p.38:-
" ...by the system that has been sct up the commissioners are the first tribunal to try an appeal, and in the interests of the efficient administration of justice their decisions can only be upset on appeal if thoy have been positively wrong in law. 'The court 1s not a second opinion, where there is reasonable ground for the first."
Lord Reid stated 1n Griffiths v J.P. Harrison (Watford) Ltd,
fi963 A.C. 1 at p.16 that only if "their decision was unreasonable" is the applicant entitled to a second opinion. In the pres ont circumstances such a first decision 15 only unreasonable if no reasonable man could have come to the conclusion that the vehicle was an zuncomplete or unfinished fork lift truck. In such c1rcumstan- ces only does the necessary foundation for the intervention of this court subsist. So long as there are one or more relevant features, physical or otherwise, upon which a reasonable man might rely for his opinion that the unit in question was such a truck, the question remains a question of fact. The further question might be posed, namely whether such features are sufficiontly significant to warrant one conclusion rather than another, but this 1s a question of degree and again a question of fact. I refer to Lord Radcliffe in Edwards v Balrstow supta at p.33. The relative significance which a Tribunal attaches to particular features, usually physical, and whether it was justified, 1s, so lony as
the features exist, a question of fact and should not be disturbed,
The Australian Gas Light Co v The Valuer-General 40 S.R. (N.S.W.)
126 per Jordan C.J., at p.138:
"If however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to tho, a decision either way by a tribunal of fact cannot br disturbed by a superior Court which can determine only questions of law."
It was accepted before us that the expression "Incomplcte and unfinished" was not a term of art, being a popular and not a technical expression. Certainly nou evidence was heard as to any different meaning in the commetcial world. Thus the common understanding as to what the words m-an 1s not a question of law
but of fact. In the same way that McTiernan J,, 1n Henderson v
Forbes 49 A.L.J.R. 335 at p.336 was of the opinion that whether goods would be characterised as "coatcd'" was a question of fact, so whether the vehicles 1n question here would be characterised or described as incomplete or unfinished 1s a question of fact. Thus the threshold question for determination 1s whether there was available any evidence upon which a reasonable man might rely in identifying the vehicles as incomplete and unfinished. In my
opinion such evidence 1S available.
The contest 1s whether the vehicles should be identified as complete tractors or incomplete or unfinished fork lift trucks, However in the circumstances that the Tribunal's decision is that they are incomplete or unfinished fork lift trucks, the quastion for this court 1S more correctly stated as whether there 15 some evidence to support the finding that they are incomplete and un- finished fork lift trucks or whether the conclusion that they are
complete tractors 1s the only true and reasonable conclusion,
An interesting discussion in the use of the word "unfinished" 1n customs duty legislation 1s to be found in Newman Manufacturing Company v Marrable {193 2 K.B. 297 where the articles under consideration were described by the plaintiff as beads, and by the
defendant as unfinished buttons. It was cleat, as Horridge J.,at p.20:
found, that "they could not be used as they are as buttons without the addition of some sort of shank. It 1s unquestionable that they were imported for the purpose of having shanks attached to them, and being made into complete buttons." His Lordship's conclusions were in the following terms:
--. 2m my view the statute was directed against those who imported goods which were not quite buttons, but upon which the bulk of the work had been done abroad, and very little remained to be done by the manufacturer an England. I think that was the reason why the words
'buttons... whether finished o1 unfinished' were used an this section.
In my judgment these articles were unfinished buttons; they were going to be buttons, and they were going
to have a shank put into them. The insertion of that shank only involved one-seventh of the total cost of the finished button, This article with a hole ready to have a shank put into it was an unfinished button within the meaning of s.9 of the Finance Act, 1928."
In the present case there are certain facts which it could be said would have entitled or justified the Tribunal in concluding that the vehicles were tractors. But such a finding does not necessarily mean that that conclusion is the true and only reasonable one. The Tribunal p5inted to sther facts, namely the large counter weight which was on the vehicle, the purpose of which was to make the vehicle more stable when it was lifting material, and which although it would aid the vehicle in pushing a load, was not attached for this purpose. Likewise the presence of two hydraulic rams at the front of each vehicle, again fitted for the purpose of assisting a lifting operation. There was also evidence that each vehicle had been adapted to accept a mast and also forks, which attachments were essentially for the purpose of lifting material. For the purpose of assessing the significance
1t would attach to those features, the Tribunal perfectly properly
took into account the capabilities of the vehicle as a tractor,
1.e. its capacity to haul or push. In this regard it found that
the hauling or pushing of which 1t was capable was "of the most
ad hoc kind", If it were pushing the driver would ba facing the opposite direction to that 1n which the vehicle was travelling.
If 1t were pulling from the steering wend of the vehicle, stcering would be difficult in slippery or reugh conditions. Likewise
the counter weight, which was "robust enough to push anything along" if pushed at the steering end, required that the object to be pushed be of the right shape and in the right position to enable the counter
weight to make contact with it.
In these circumstances it 1S not possible to say that there was no evidence to support the decision or that all the evidence was inconsistent with and contradictory of the decision. This court might feel that such a decision 1S unsatisfactory and that too much significance was attached by the Tribunal to these features. However in the laght of the principles abovementioned it can not say that 1t 1S unreasonable in circumstances where there 15 sume evidence, the weight or significance of which the Tribunal is alone entitled to assess, to support the conclusion that the vehicles were imported 1n an incomplete state. It must follow that they had some of the characteristics of lifting machinery and whether such characteristics were suffic1rently significant to enable
the conclusion that they had "the essential character" 1s a question
of degree and thus of fact.
I agree the appeal should be dismissed.
= { certify that this and the / preceding pages are a true copy of the Reasons for
Judgment of Mr Justice YS
_ - -
Dated: 42 haquok, 98>
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G. 4 of 1980 GENERAL DIVISION
Between:
har HODGE (AUSTRALIA) TX.
Applicant
THE COLLECTOR OF CUSTOMS, NEW SOUTH WALES SS
Respondent CORAM: Smithers, Fisher and Sheppard JJ. REASONS FOR JUDGMENT va A r SHEPPARD J.: RAR uc wal (g go
This is an appeal pursuant to s.44 of the Administrative Appeals Tribunal Act, 1975, against the decision of the Administrative Appeals Tribunal made on 24th December, 1979. The decision was given in respect of a dispute between the applicant and the Collector of Customs as to the correct amount of customs duty to be paid in respect of the importation by the applicant into Australia of certain goods. The applicant is a company carrying on business in Australia. It is an importer of machinery of various kinds.
The goods the subject of the dispute may be described
neutrally as vehicles. Four are involved. One was entered for home consumption on 3lst May, 1978, two on 28th November, 1978, and the fourth on 3rd April, 1979.
The Collector originally decided that the first vehicle was properly classified as falling within paragraph 84,.23.311 of the Customs Tariff 1966 (hereinafter referred to as the Tariff). He subsequently decided that the correct classification of that vehicle and the remaining three vehicles was that they were within paragraph 84.22.5211. The applicant on the other hand, eventually contended (it is immaterial to refer to its earlier con- tentions) that the vehicles fell within paragraph 87.01.31.
The description of the vehicles is not in contest. To a layman each of the vehicles bears general resemblance to a tractor, They were so described in the evidence of Mr. S.R. Wood who is the applicant's marketing manager for the vehicles. Each vehicle has four wheels - two large driving wheels at the front and two smaller wheels at the back. The engine is behind the driver who sits on a seat close to the front of the vehicle. It is directed by a steering wheel which operates the two smaller wheels at the rear. The front wheels are fixed and do not change direction. The wheels are fitted with large rubber tyres. At the rear is a draw hook that would enable another vehicle, for example a trailer, to be hooked on and pulled. Also at the rear, underneath the engine of the vehicle, is a large counterweight. At the front of each vehicle are fitted two hydraulic rams.
All vehicles are similar. They differ only in their
capacities. Two have a capacity of 4 tonnes, one a capacity of 2.5 tonnes and the other a capacity of 2 tonnes.
The vehicles were imported from France. They were manufactured in Ancenis by a company Braud & Faucheux S.A.. The manufacturer took as a base or starting point what is known as a skid unit acquired either from the Ford Motor Company or International Harvester. The skid unit comprised an engine, a gear box, a differential and transmission to two stub axles which could be fitted with driving wheels.
The name "skid unit" comes from the letters S.K.D. which stand for Semi Knocked Down.
The skid unit is fitted to a very strong chassis. The housing over the engine is of sturdy construction as are the wheels and other parts fitted by the manufacturer. The tyres fitted to the wheels are tractor tyres.
In the condition in which the vehicles were imported there were no attachments other than the counterweight, towing hook and hydraulic rams to which reference has been made. There were holes bored in a shaft at the rear of the vehicles to which could be attached a bar or chains for pulling. The counterweight itself could be used for pushing. But the evidence establishes that each of the vehicles the subject of this appeal and a large number of others imported into Australia were brought in to be used as what are known as site lifts. They were to be fitted with a lifting mast and used as a fork lift truck not so much on smooth surfaces
such as would be found in warehouses or factories, but on
farms or building sites where the terrain is rough and uneven. The purpose of the counterweight is to make the vehicle stable when it is lifting. If the vehicle were to be used only for pulling or pushing there would be no need for a counterweight to be fitted.
The evidence establishes that the vehicles are used in overseas countries for a wide variety of purposes including agricultural purposes, They are fitted with many different attachments although from the literature which was in evidence before the Tribunal many used for agricultural purposes have lifting masts attached to them. The use of the vehicles in Australia has not been so wide ranging. The evidence of Mr. Wood establishes that most, if not all, the vehicles imported into Australia, including the four in question, were intended to be used as fork lift trucks on building sites.
The history of the development of the vehicles is important in the light of some submissions which were made by the applicant. The vehicles were apparently developed from a McCormick agricultural tractor. Originally the com- plete tractor including bonnet and shield was used. The driver's seat and steering wheel were reversed so that the vehicle was steered from what was originally the rear of the tractor rather than the front. A mast articulated on the driving axle was added as was the counterweight at the rear.
The original chassis was reinforced. Later it was only the
skid units which Braud @ Faucheux used as a basis for
the manufacture of the vehicles, The balance of the units were fabricated by the company. Later still the skid units themselves were slightly modified in order
to satisfy the needs of the company's tractors, namely, heavy loads and rough terrain. The units imported
into Australia are not equipped with lifting masts or other accessories because under the terms of the contract between the company and the applicant the applicant purchases these items separately.
The Tribunal held that the vehicles were properly classified under paragraph 84.22.521, I pause to say that I have had some difficulty in knowing how properly to describe the various items, using that expression neutrally, in the Tariff. I do not find the provisions of s.13(2) of the Tariff (which defines "item", "sub-item",
"paragraph" and "sub-paragraph") particularly clear on this question when its provisions are reed in conjunction with the schedules to the Tariff. I have tried to use what I believe to be the nomenclature of the legislature. If I have failed in this endeavour, my meaning will nevertheless be clear.
Paragraph 84,22.521 is in Chapter 84 of the Tariff. Chapter 84 is in Division XVI which is entitled "Machinery and Mechanical Appliances; Electrical Zquipment; Purts Therefor", Chapter 84 is entitled "Boilers, Machinery
and Mechanical Appliances; Parts Therefor", Item 84,22
De
specifies:
"Lifting, handling, loading or unloading
machinery, telphers and conveyors, not
being machinery falling within item 84,23", It is not relevant to refer to item 84.23. After item 84,22 there follow a number of paragraphs referring to various kinds of lifting, handling, loading and unload- ing machinery. These are not material. Paragraph 84,22,52 is, "Other machinery, but not including parts therefor specified in paragraph 84,22,53", That para- graph has no relevance. The other machinery referred to in paragraph 84.22.52 is machinery of the kind specified in item 84,22, that is lifting, handling, loading or unloading machinery, telphers and conveyors. Paragraph 84,22.521 applies to machinery which is within paragraph 84.22.52 and which does not have a working weight of more than 50 tonnes. None of the vehicles here in question had a working weight of more than 50 tonnes.
It was the applicant's submission that the vehicles could not as a matter of law fall within paragraph 84,22.521 because at the date of their importation they could not be used for lifting, handling, loading or unloading.
Each was capable only of pulling or pushing another vehicle or load.
As has been mentioned the applicant contended that the vehicles were properly classified within paragraph 87.01.31.
That paragraph is within Chapter 87 of the Tariff which
is within Division XVII which is entitled "Vehicles, Aircraft and Parts Therefor; Vessels and Certain Assorted Transport Equipment." Chapter 87 is entitled "Vehicles, Other Than Railway or Tramway Rolling Stock and Parts Therefor." Item 87.01 specifies tractors (other than those falling within
Item 87.07) whether or not fitted with power take-offs, winches or pulleys. The submissions of the parties were such as
not to make it relevant to refer to item 87.07.
Paragraph 87,01.31 specifies tractors which are: "Agricultural wheeled tractors and other wheeled tractors that are derivatives of agricultural tractors:
Having a power of, or exceeding, 15 kilowatts at the power take-off". The notes to Chapter 87 define the expressions "tractor" and "agricultural tractor". Note 2 defines "tractor" to meani- "a vehicle constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not the first-mentioned vehicle contains sub- sidiary provision for the transport, in connexion with the main use of the tractor, of tools, seeds, fertilisers or other goods".
Note 7 defines "agricultural tractor" to mean: "a two-wheel drive tractor of a kind used solely or principally in agriculture, horticulture or viticulture".
There is another part of the definition to which it is
unnecessary to refer.
At the hearing before the Tribunal it was the applicant's contention that the vehicles were either agricultural tractors within the definition of that expression in Note 7, or were
derivatives of agricultural tractors. At the hearing before
this Court the submission that the tractors were agricultural tractors was abandoned but it was contended tnat they were derivatives of agricultural tractors.
It was said that the Tribunal's decision that they were not derivatives of agricultural tractors was erroneous in point of law,
It was the primary submission of the Collector that no point of law arose in the case and that the determin- ations of the Tribunal which were challenged were deter- minations of questions of fact against which there was no appeal to this Court. The Collector further submitted that the Tribunal nad, in any event, made no error of law in arriving at its decisions.
There are contained in Part I of the first schedule to the Tariff rules for the interpretation of Part II of that schedule. The relevant provisions of the Tariff are contained in Part II of its first schedule. The way in which these rules are to be used is provided for in s.14 of the Tariff itself. It is unnecessary to refer to the detail of s.14, but one of the rules should be mentioned. It is Rule 2(1)(a) which is as follows:
"2,(1) A reference in an item (including a reference in a sub-item, paragraph or sub-
paragraph) to goods of a particular kind shall be read as including a reference to -
(a) goods that are imported in an incomplete or in an unfinished state but have the essential character of goods of that kind;" I deal first with the yuestion of whether the Tritunal's
decision that the vehicles were not within paragraph 87.01.31
was erroneous in point of law. In order to succeed
the applicant must demonstrate that the evidence is
such that the vehicles must fall within the words of the paragraph. In this respect I refer to Currie v. Inland Revenue Commissioners (1921) 2 K.B.332, where Lord Sterndale said (p.336):
"There may be circumstances in which nobody could arrive at any other conclusion than that what the man was doing was carrying on a profession; and therefore looking at the matter from the point of view of a judge directing a jury, the Judge would be bound to direct them that on the facts they could only
find that he was carrying on a profession, That reduces it to a question of law. On the
other hand, there may be facts on which tne
direction would have to te given the other way. But between those two extremes there is a very
large tract of country in which tne matter becomes a question of degree; and where that is the case the question is undoubtedly in my opinion, one of fact; and if the Commissioners came to a conclusion of fact without having applied any wrong principle then their decision is final upon the matter,"
I refer also to Lombardo v. Federal Commissioner of
Taxation (1979) 28 A.L.R. 574 at p.576.
I think there is a question as to whether the applicant's submission raises a question of law. In the view thet I take of the matter, however, I do not consider it necessary to determine that matter. As earlier mentioned the applicant did not argue before this Court that the vehicles were agricultural tractors, but it did argue that they were derivatives of agricultural tractors, I confess to
finding it difficult to understand what is meant by the
expression "derivatives of agricultural tractors". I think counsel for the Collector laboured under the same difficulty when he endeavoured to provide examples of tractors which would fall within that classification. But what- ever it is that the expression may cover, I am satisfied that the vehicles here in question are not derivatives of agricultural tractors in the sense in which that expression is used in the relevant paragraph.
It was submitted by counsel for the applicant that they were derivatives of agricultural tractors because they were modelled on or based upon the old McCormick agricul- tural tractor, That was said to be so notwithstanding that no more than the skid unit used in the manufacture of present day agricultural tractors was now used, Counsel referred to a number of dictionary meanings of the words "derived" and "derivative" and showed that one meaning of the expression "derived from" was "coming from a source", It was submitted that this was the meaning which the word derivative had in the relevant provision and that the relevant source was an agricultural tractor,
I agree that the expression "derived from" means "coming from a source", However, the source from which the vehicles here in question had to come in order to fall within the paragraph was an agricultural tractor, It is true, historically speaking, that the vehicles developed,
firstly by the adaptation of an old McCormick agricultural
1c,
tractor, then by the taking of the skid unit from such
a tractor and finally by the manufacture of a skid unit more particularly suited to the needs of a vehicle intended by the manufacturer to be able to stand up to
the hard work for which these vehicles are designed. But I do not think that the paragraph in question is speaking of the historical development of agricultural tractors. Rather it is concerned to specify an article which itself has been derived from an existing agricultural tractor.
To my mind the article, whatever it is, must have been developed from an actual agricultural tractor, not developed from such a tractor in the sense of being modelled upon something which in former times was an agriculturel tractor or part of such a tractor, It is for that reason that I am of the opinion that the vehicles do not fall within paragraph 87.01.31.
The next question is whether the Tribunal was in error in point of law in holding that the vehicles fell within paragraph 84,22.521 of the Tariff. In the con- dition in which the vehicles were imported they were plainly not telphers nor conveyors, Nor, upon the uncon- tradicted description of the vehicles in Mr. Wood's evidence earlier recounted, does it readily occur to one that they are properly described, in the condition in which they came into this country, as lifting, handling, loading and unloading macninery. In their condition
upon importation they could not be used for any of those
ll.
purposes. The Tribunal itself was of that view. It was able to reach the conclusion that the vehicles were within the paragraph only by reason of the operation it considered interpretative rule 2(1)(a) to have. The provisions of that rule have been earlier set out. The question is, firstly, whether the vehicles were imported in an incomplete or in an unfinished state and, if that be so, secondly, whether they have the essential character of lifting, handling, loading or unloading machinery. An appeal lying only upon a question of law the applicant will, upon the basis of the principles earlier adverted to, fail unless it be demonstrated that on no basis could tne Tribunal have reached the con- clusion that the vehicles were imported in an incomplete or unfinished state, or, if it was open to tne Tribunal to hold that they were in such a state, that the vehicles (being in that state) could not on any basis be said to have had the essential character of lifting, handling, loading or unloading machinery. The critical paragraph of the Tribunal's reasons for decision is as follows: "The findings set out above and our description of the units make it clear that the machine has been designed for the purpose of adding various implements or accessories to carry out a wide variety of functions. The units are clearly used with many different accessories attached carrying out the many functions which they were constructed to perform, we agree with the sutmission that the modifications performed by the supplier upon the
'skid units' purchased from 'International Harvester' and 'Ford Tractor Division' reveal that
"the imported machines, although incomplete, have been committed to being completed so as to be able to perform the functions specified within item 84,22 and were sufficiently com- plete to be identified as belonging to the classification in question. It is clear that the imported units have been adapted to accept a mast and forks for lifting. Also the attach- ment of hydraulic rams indicates that the machines have been constructed for lifting
purposes. Altogether we consider that the units, although incomplete and unfinished, have a character which is on the evidence sufficient to support the classification con- tended for by the Collector,"
There is no express mention in that paragrapn of the counterweight, but I would regard the statement that the vehicles had been adapted to accept a mast and forks for lifting as an indirect reference to it. The evidence establishes that the only purpose of the counterweight is to enable the vehicles to be fitted with an attacnment at the other end which will either itself be heavy or capable of lifting heavy weights. The weight at the rear of the vehicle would counter the effect of such a loading and thus keep the vehicle stable. If the vehicle were not fitted with a lifting attachment or an attachment which itself was of substantial weight, there would be no purpose in the vehicle being fitted with the counterweight. For similar reasons there is no purpose either in its being fitted with the hydraulic rams unless something be added. It 1s the presence of the counterweight and the hydraulic rams which lends support to the contention that the
vehicles were imported in an incomplete or unfinished
state. On the other hand the vehicles could te driven
and steered. They were capable of pushing or pulling objects including other vehicles. Those matters could suggest that the vehicles were complete in themselves at the time of importation.
A tribunal entrusted with deciding how the vehicles should be characterised for the purposes of the Tariff was obliged to take all those considerations into account in reaching a conclusion, Plainly the Tribunal here did so. Having done so it reached the conclusion that the vehicles were imported in an incomplete or unfinished state but had the essential character of goods described in the relevant paragraph of the Tariff. The question is whether it was open to the tribunal to come to those conclusions. In resolving that question the principle which is to be applied is that stated by Lord Sterndale in Currie v. Inland Revenue Commissioners ((1921) 2 K.B. at p.336) earlier cited.
Having reflected upon the matter at some length I have reached the conclusion that, by reason of the presence of the counterweight and the hydraulic rams, it was open to the Tribunal, as the tribunal whose decisicns on questions of fact were final, to come to the conclusion that the vehicles were imported in an incomplete, if not unfinished, state, notwithstanding that in many respects they had the features of a complete and finished article.
Once that conclusion is reached, 1t follows, almost as a
corollary, that the vehicles had the essential character
14,
ea we
W
of lifting machinery. To hold otherwise would be to put on one side the conclusion already arrived at, namely that the vehicles had been imported in an incomplete state.
I should add that in reaching my conclusions I have borne in mind that it is the state or condition of the goods at the time of importation that is the determining factor. The test is an objective one. The purpose of the manufacturer or exporter on the one hand or the importer or user on the other can have no relevance. Otherwise rates of duty for identical articles would vary depending upon what their proposed use was to be. It is the intrinsic nature of the article itself which has to be considered. That is not to say, however, that it will not be relevant to take into account in determining the nature of an article and the question of whether it is in an unfinished or incom- plete state the ordinary use to which such an article might reasonably be expected to be put. What ought to be left out of account is the particular purpose which an exporter or importer may have had in mind for the article in question. Nothing in the reasons of the Tribunal leads me to think that it misdirected itself in relation to the matter I have last mentioned.
For the reasons I have given I am of opinion that the appeal should be dismissed and the decision of the Tribunal
affirmed. The applicant should pay the respondent's costs.
I cartify that tis avd the }4& preceding
are a true copy of the reasons for )
pages judgment herein of The Honourabl
15+ mr Justice Sheppard. < A lh ~~ Associate
Dated 2% Rr, \q8e