Collector of Customs v Pozzolanic Enterprises Pty Ltd [1997] FCA 131 | Case summary

It is necessary to explain what the dispute before the Tribunal was about. It concerned the correct classification for customs duty purposes of certain goods imported by the appellant. The goods, according to the document headed "STATEMENT OF FINDINGS ON MATERIAL QUESTIONS OF FACT AND REASONS FOR DECISION", which was filed on behalf of the Australian Customs Service in the Administrative Appeals Tribunal, consisted of double or triple blood collection packs made from a specialized plastic for the processing and storage of blood. However, it was not simply as collection, processing and storage packs that the goods were to be classified, in the view of the Comptroller-General of Customs. His contention was and is that they should be considered as part of a complex of instruments and equipment constituting "infusion or transfusion sets for blood or other fluids". That is because the packs, which are sterile bags for the collection and storage of blood or blood products containing anti-coagulant solution, are constructed with an outlet port as well as an inlet port, so that equipment for administering to a patient an infusion or transfusion can be attached to the bag. Thus the bag, having first been used to collect blood through its inlet port from a donor and then to store it, or to collect plasma or other blood products for storage, may later feed its contents into other equipment by which those contents are infused or transfused into a patient. Of course, this does not always happen; blood may be fully utilized at the Commonwealth Serum Laboratories, so that the pack may be thrown away, or blood or blood products may be held in storage for too long to be utilized. Chapter 90 of Schedule 3 to the Customs Tariff Act 1987 comprehends "Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof". Note 2 of the chapter notes relevantly provides that - "parts and accessories for machines, apparatus, instruments or articles of this Chapter are to be classified according to the following rules: ... (b)Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading ... are to be classified with the machines, instruments or apparatus of that kind". The chapter includes a heading 9018, "INSTRUMENTS AND APPLIANCES USED IN MEDICAL, SURGICAL, DENTAL OR VETERINARY SCIENCES, INCLUDING SCINTIGRAPHIC APPARATUS, OTHER ELECTRO-MEDICAL APPARATUS AND SIGHT-TESTING INSTRUMENTS". Beneath this heading, at the relevant date, there appeared the sub-heading 9018.90.20, which comprehended: "Goods, as follows: (a)apparatus for the administration of anaesthetic gases; (b)drainage appliances (including calibrated drainage bags) with, or designed to be used with, a catheter; (c)incubators for babies; (d)infusion or transfusion sets for blood or other fluids; (e)suction apparatus". A perusal of the material in the appeal book shows that the case for the Comptroller-General was only presented to the Administrative Appeals Tribunal on one simple basis, which was also the basis of the original decision under review by the Tribunal. The Comptroller-General contended that the packs in question were "infusion or transfusion sets for blood or other fluids" within sub-item 9018.90.20(d). But he did not ever suggest that, considered alone, they fell within those words in the sub-item. He could not have done so, since the packs were incapable in themselves of use to achieve any infusion or transfusion of anything. What he contended was that their function was to contain blood which would be infused or transfused from them into a patient by a "giving set" inserted into the pack and, of course, also into a vein of the patient; and on this basis, the argument was that they were a part of an infusion or transfusion set, and that such a part, although incomplete in itself, was properly to be classified, by virtue of Chapter 90 note 2(b), as falling within the item. Inevitably, if an infusion or transfusion set were to be seen as including these packs, then, ex hypothesi, the packs would be parts of such a set. So, however one might choose to express the argument, at bottom the only question it raised was whether the thing that answered the description in sub-item 9018.90.20(d) of the tariff was, not merely the equipment by which blood was infused or transfused from a container into a patient's veins, but the whole apparatus involved in that operation, including the container itself. The Comptroller-General's contention, as I have stated it, required one qualification, in so far as by the terms of Note 2(b) a part of a thing will not be classified under the item relating to the whole thing, unless it is "suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading". But this qualification, though by no means irrelevant in the event of the Comptroller-General otherwise succeeding, is irrelevant to the question whether the reasoning of the Tribunal discloses an error of law. For the Tribunal never got to the qualification, rejecting as it did the Comptroller-General's argument at the first step. A preliminary point should be mentioned, since it is important, although little attention was paid to it in argument. Where there is a question whether something falls within a verbal description in a statute (as in a case raising the application of a tariff item), the answer may depend simply on findings of fact as to the meaning of the words constituting the description and as to the nature of the thing itself. With regard to the words, "[t]he question what is the meaning of an ordinary English word or phrase as used in [a] Statute is one of fact not of law": The Australian Gaslight Company v The Valuer-General (1940) 40 SR(NSW) 126 at 137, per Jordan CJ. Nevertheless, once the nature of the thing has been found as a fact, whether it falls within the verbal description will, in many cases, be a question of law. For, in the first place, it may not be a matter of applying merely the ordinary English meaning of words or phrases, but of applying a meaning derived from the statute by a process of construction, which is a process of law: Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 10, per Mason J, with whose reasons Gibbs, Stephen and Aickin JJ stated their agreement. The principle that construction is a process of law has never been doubted, although the completeness of the proposition derived from it that "[t]he effect or construction of a term once its meaning or interpretation is established is a matter of law": Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 at 648, per Gummow J; Collector of Customs v Pozzolanic Enterprises Pty Ltd (supra, at 287), and the relationship between that proposition and the proposition that the meaning of an ordinary word or phrase is a matter of fact, were left in some doubt when Agfa-Gevaert v Collector of Customs was reversed on appeal by the High Court: see Collector of Customs v Agfa-Gevaert Ltd (1996) 141 ALR 59 at 63-64. Gummow J, in Agfa-Gevaert Ltd v Collector of Customs, also held (ibid) that it is a question of law "whether the facts as found fall within the terms of the law as properly construed; to this there is the qualification that, where the statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the decision as to whether they do so fall generally is a matter of fact." His Honour added that the limitation "generally" was required, even in this last case, "because the law may use a word in an ordinary sense, but there may be a number of ordinary senses and it then is necessary to select that which is appropriate, and because whilst the word may have but one ordinary meaning that is imprecise, the word will take its colour from the context and that will require construction of the law, a lawyer's task. The result in such cases will be more than the matching of a set of facts with plain words." The proposition that "whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law" was stated to be sustained by "[m]any authorities" in the judgment of Mason J in Hope v The Council of the City of Bathurst (supra, at 7). The same proposition was subsequently applied by Full Courts of this Court to cases where what was in issue was whether facts as found fell within the provision of a tariff item: Peacock v Zyfert (1983) 48 ALR 549; Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285 at 293, 306. In the former case (at 564-5), Lockhart J said: "It must be a question of law whether a given description of goods falls within a particular part of the Tariff. Here the question is what particular part of the relevant Schedule, if any, applies. This necessarily involves a question of construction of the Tariff and is a question of law: see Whitton v Falkiner (1915) 20 CLR 118, per Isaacs J. (at 127)." See also per Fox J at 555-556. But as Mason J made clear in Hope at 7-8, and as is also made clear by the passage I have cited from the judgment of Gummow J in Agfa-Gevaert Ltd v Collector of Customs, there are complexities. A consideration of these two judgments shows that there are at least two separate qualifications to the proposition stated in Hope, which arise out of the intrinsic uncertainty of the exact meaning of many words and expressions in the ordinary use of language. One problem, to which Mason J refers, arises in the case where a statute, on its true construction, uses a word which is inherently capable of more than one application. He instanced Brutus v Cozens [1973] AC 854, where the word in question was the word "insulting". It was plainly open for a particular set of facts, as found, to involve behaviour that was susceptible of being not unreasonably regarded either as insulting or as not insulting, and the question whether the statutory description was satisfied was inevitably one of fact. Similarly, in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 14-15, Davies and Beazley JJ (with whom Hill J agreed) held, contrary to the view I had taken at first instance: Collector of Customs v Sharp Corp of Australia Pty Ltd (1994) 35 ALD 589 at 592-593, that the expression "essential character" as used in r 3(b) of the General Rules for the Interpretation of the Tariff "carries its ordinary meaning", but that meaning being complex, the question whether particular facts fell within it was a question of fact, so that the matter should be decided on the basis the decision under review "was one which was open to a reasonable decision-maker". In cases of this kind, it is customary to find illumination, as Mason J did in Hope at 7-8, in the judgment of Kitto J in N.S.W. Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309 at 512, where a two-staged process is expounded. First, it is necessary to ask, as a question of law: are different conclusions open as to whether the facts found fall within the words of the statute? Then, "[i]f different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact". See also Cowell Electric Supply Company Ltd v Collector of Customs (1995) 54 FCR 1 at 6, 10, 20-21, and 24; Sharp Corporation of Australia Pty Ltd v Collector of Customs (supra) at 16. The two-staged process will, of course, be cut short where only one conclusion is reasonably open upon the facts found, as was held to be the case, for example, in Hope at 9 and in Cowell Electric Supply Company at 10, 24. Consistently with the often-cited general proposition stated by Fullagar J in Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51, which is cited again in the joint judgment of the High Court in Collector of Customs v Agfa-Gevaert Ltd at 62-63, that "[w]here the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law", if a statute uses words less susceptible of a range of meanings than "insulting" or "essential character" and the facts are fully found, then, even though no particular problem of construction is identified, the application of the statute is likely to be a matter of law; and it will be so, unless some degree of imprecision in the meaning of the statutory language may have an impact on the case, requiring some finding of fact. The other type of case is that to which Gummow J refers in Agfa-Gevaert Ltd v Collector of Customs and to which I had assimilated Sharp Corporation, where the solution to the complexity involved in the uncertainty of the meaning of a word is to be found by a process of construction of the word in its context in the legislation, a matter of law. In such a case, a court or tribunal does not choose between different possible applications of the one equivocal or inexact statutory concept (eg. "insulting") to an evaluation or an appreciation (in the French sense - see 69 ALJ 984) of the facts, but chooses upon the principles of construction between possible concepts conveyed by the statutory expression. Of course, it is conceivable that a particular provision in an enactment will raise both kinds of problem. But Gummow J's remarks in Agfa-Gevaert Ltd v Collector of Customs seem to me to involve that, where the susceptibility of words and expressions to different meanings or shades of meaning is to be resolved by a process of construction of the statutory language in order to determine whether it embraces the facts found, the ultimate question is one of law. This accords with the view of Fullagar J in Hayes v Federal Commissioner of Taxation (ubi supra), with Hope at 10, and with the joint judgment of Sheppard and Burchett JJ in Australian National Railways Commission v Collector of Customs, South Australia (1985) 8 FCR 264 at 277. In Collector of Customs v Agfa-Gevaert Ltd at 64-65, the joint judgment of the High Court refers to the principle "that the determination of whether an 'Act uses [an] expression ... in any other sense than that which they have [scilicet it has] in ordinary speech' is always a question of law". On that basis, logically it must also be a question of law, in a case where a statutory expression has several ordinary senses, whether it is used in a particular one of them. And as the joint judgment of Neaves, French and Cooper JJ in Pozzolanic Enterprises points out (at 288-289), uncertainties may require to be resolved by reference to a value judgment about the range of the Act, rather than a matching of the facts to the, or an, ordinary meaning of the words. Their Honours said: "Although the words of the statute are construed according to their ordinary English meaning, that does not mean that their application to a set of facts is simply described as the matching of that set of facts with a factual description. There is necessarily a selection process involved. The range of relationships to which the words apply for the purpose of the Act depends upon a judgment about that purpose. The selection process involved is analogous to that used in determining what causal relationships between conduct and loss attract liability for the purpose of s 82 of the Trade Practices Act (1974) (Cth): see Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 418-419; Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700 at 712-713. In the end this is not a process of fact finding. The facts are found. What is left is a value judgment about the range of the Act and that is a question of law." This passage was referred to in the joint judgment of the High Court, without criticism, in Collector of Customs v Agfa-Gevaert Ltd at 63. In my opinion, the present case involves a question of the construction of the relevant provision of the tariff, and thus a question of law. When that question has been answered, it will be possible to see whether the principle of Peacock v Zyfert applies, or whether some further finding of fact is necessary. But in either case, there will have been no ground for the Court to interfere unless an error of law occurred on the part of the Administrative Appeals Tribunal in its determination of the matter. I turn, therefore, to the Tribunal's reasons. The Tribunal begins by describing the goods - "blood packs, being bags made from plasticised polyvinyl chloride for the collection and storage of blood or blood products ... manufactured under clean room conditions and then terminally sterilised containing anti-coagulant solution. Each bag has an inlet and outlet port; the first bag in each set having attached to its inlet port a collection tube, blood taking needle and needle protector which allows blood to flow from the donor into the bag. Each bag has an outlet port to allow a 'giving' or 'administration' set to be attached to the bag and blood to be infused into a recipient." The Tribunal added that each "bag also has an eyelet which can be used to suspend the bag plus there are additional outlets with tubing attached connecting one bag to another in a closed sterile system allowing for the movement of blood or blood products between the bags." Next, the Tribunal states the nature of the evidence as to the purpose of the bags. There was evidence of their purchase for blood bank use for collecting donor blood from which products were made and issued to hospitals and the Commonwealth Serum Laboratories, either for transfusion or for manufacture into further products. The Tribunal stated: "In order to infuse (or transfuse) a patient a 'giving set' is required which is inserted into the blood donor pack." The Tribunal noted the "distinction between giving sets and blood collection packs", and pointed out that the "Blood Bank purchases blood donor pack sets but does not purchase giving sets because the Blood Bank does not give transfusions on site". Reference was also made to evidence about the use of the packs, which was given by a Dr Wylie, the Director of the Red Cross Blood Bank in New South Wales. Dr Wylie said: "Your donation may be collected into a single, double, triple or quadruple pack. There will be, what we term, a primary pack, which is where the blood initially goes into when it leaves your vein, it goes through a line and there's a needle at the end of it which goes into your vein. Then the donor line is sealed off and the pack set, only one of a bag which may have - will have blood in it at that time, goes to the fractionation laboratory, processing laboratory, and the pack is then spun down. Now, in the main, we will leave the red cells which is the whole blood line as to plasma in that primary pack, and the plasma, with or without platelets in it as well, will be transferred to one, or perhaps subsequent packs in the system. At that time it's still an integrated pack set and any of those packs from the company that we currently purchased our packs from, will be able to be used as transfusionable products. So from the one donation we may have a red cell product, then a plasma product and a platelet product, which are then - once they're created the individual packs are cut off and sealed so you get three different separate components from that single pack set." The Tribunal commented that other witnesses agreed with what Dr Wylie said in this passage, "except to add that in most hospitals the secondary products would be pooled prior to infusion to make up the therapeutic dose". The Tribunal then stated what it clearly regarded as a matter of great significance. It said: "The fundamental point is, however, that before blood or any blood product can be infused into a patient a giving set is required." After the statement of this "fundamental point", the reasons break off for a few paragraphs to refer to the terms of the relevant tariff items and to the fact that the expressions "infusion set" and "transfusion set" have no trade meaning. In that situation, it was appropriate to look to the function of the packs in relation to infusion or transfusion. The Tribunal reiterated that "the packs themselves require a 'giving set' before the product can be infused." There being no trade meaning, the Tribunal's task was to find the meaning of the statutory expression in the usual way by looking at the language, and by the processes of construction of the words in their context. The expression "infusion or transfusion sets" is, of course, ungrammatical. Neither "infusion" nor "transfusion" is an adjective; yet the words appear to be used to describe particular sets. The simplest way to understand the structure of the expression is to see the collocations "infusion set" and "transfusion set" as combinations of words forming expressions referring to sets for the purpose of infusion or transfusion of blood or other fluids. The idea of purpose is in fact conveyed, though not with precision, both by these combinations of words and also by the word "for" in the sub-item - "infusion or transfusion sets for blood or other fluids" - which must convey some purpose of doing something with the blood or other fluids. Without spelling this out, the Tribunal turned to an Australian Standard (AS 2385) which was entitled "Single-use (sterile) infusing sets for general medical use". It was, it seems to me, entirely appropriate that the Tribunal should refer to such a document in order to ascertain what would be involved in a set for general medical use for the purpose of infusion. The material before the Tribunal shows that this standard is referred to in a general publication put out in the name of the New South Wales Blood Bank. I shall return later in these reasons to this publication. There was evidence that transfusion was not in any practical sense different from infusion. Doubtless, as this evidence suggests, the word "transfusion" merely reflects an advertence to the fact that, in a particular case, the infusion may come from some other person, as in a blood transfusion. Having looked at the Australian Standard, the Tribunal found it revealed "that the specific requirements for a blood set (ie a set suitable for use with blood, blood derivatives and intravenous fluids in general) shall [emphasis original] include the following components: (a)Closure-piercing device. (b)Drip-filter chamber, or separate filter chamber and drip chamber. (c)Delivery tube. (d)Injection site. (e)Flow regulator. (f)Adaptor. The blood set may also include an air-inlet assembly and an intravenous injection device." The Tribunal then made the important finding: "None of the above components [is] contained within the subject goods. The subject goods are for the collection and storage of blood." Obviously, the point of this finding was that the subject goods did not, either wholly or in part, form any part of an infusing set as known to medicine and standardised by the relevant Australian Standard. In fact, they were designed to serve a different purpose, that of the collection and storage of blood. The Tribunal then referred to some evidence of Dr Wylie, a witness called on behalf of the Comptroller-General, who accepted the nature of an infusing set which he called a "giving set", but nevertheless sought to give "infusion set" a wider meaning, including the pack of blood, salt water or dextrose to be infused into the patient. Dr Wylie was asked: "Could [you] then describe the complete equipment that one would need to perform, for example, a blood transfusion?" and answered: "We need two basic pieces of equipment. You obviously need the blood that you are going to transfuse, and that comes in a pack, and you need a giving set which is inserted into that pack and the two items together are the apparatus required for a blood transfusion." The Tribunal noted that Dr Wylie had added: "The term infusion set I think is a somewhat confusing term because even when talking of infusion sets, you need to talk about both the giving set and the pack, whether the pack contains blood or whether the pack contains salt water or dextrose is irrelevant." Pausing at this point to recapitulate, I note that the Tribunal had found the packs in question to be distinct from the known medical infusing sets the subject of an Australian Standard and to contain no component of an infusing set. The Tribunal had found that the packs were for the collection and storage of blood, and that before the blood could be infused into a patient, in the cases where this was the use to which it was to be put (as distinct from cases where the blood was to be broken down into components such as plasma), the packs required to have applied to them a different piece of equipment which was referred to in the evidence as a "giving set", and was obviously identical with the infusing set the subject of an Australian Standard. The only basis on which it was argued that the packs were in the statutory sense infusion or transfusion sets was that they formed part of a total set, which it was said could be so described, when they were used, in one of their uses, in connection with the medically known infusing sets to give a transfusion of blood or of a blood product. In no sense at all could they be regarded as being in themselves infusion or transfusion sets, and the only wider set suggested, of which they could possibly be held to form a part, was the wider set I have described. It was in this situation that the Tribunal went on to refer to the dictionary meanings (citing an unspecified edition of the Shorter Oxford English Dictionary) of the words "transfusion" and "infusion", which, it noted, "seem[ed] to be used interchangeably in referring to the sets". Those words, the dictionary made clear, referred in ordinary usage to the action of the pouring of a liquid, and the specific medical meaning of "transfusion" referred to the "process of transferring the blood of a person or animal into the veins of another; the injection of blood or other fluid into the veins", while "infusion" had the medical sense of "injection". These definitions plainly supported the identification of "infusion or transfusion sets" with "infusing sets" as described in the Australian Standard. They did nothing to support the contentions of the Comptroller-General. Having noted these dictionary definitions of "transfusion" and "infusion", which it considered showed that "the words are synonyms", the Tribunal referred also to the dictionary's definition of the word "set", according to which it said this word had the meaning: "[a] collection of instruments, tools, or machines customarily used together in a particular operation; a complete apparatus employed for some specific purpose." It then concluded: "To my mind the goods cannot be described as 'parts' of a transfusion/infusion set." The Tribunal referred to my adoption in Collector of Customs v Sharp Corp of Australia Pty Ltd (supra, at 596) of the remarks of Davies J in Waterscheid Australia Pty Ltd v Collector of Customs (1988) 7 AAR 555 at 564, where Davies J said that "an item separate from another may not be a part of the other even though it is essential to its functioning"; referred to the statement of Gibbs J in Deputy Commissioner of Taxation v Polaroid Australia Pty Ltd (1971) 46 ALJR 32 at 34 that "one thing does not become part of another simply because the latter thing cannot be put to proper use without the aid of the former, even if, in use, the two things are fixed together"; and went on to say: "The proper test in relation to the word 'part' was stated by Gibbs J. in the Polaroid Australia case at 34: 'Obviously a part is something which with others makes up a whole ... '". There can be no dispute about the relevance of these observations made by Gibbs J and Davies J to the argument put forward by the witness, Dr Wylie, called on behalf of the Comptroller-General that, because a pack containing blood is necessary to the use of an infusing set to effect a blood transfusion, therefore the pack must be regarded as part of a transfusion set. What those Judges said denies the validity of any such argument. The Tribunal rounded off its conclusion by saying: "Applying that test [ie. the test stated by Gibbs J. and Davies J.] to the goods in question it can be seen that their essential function is to collect and store blood and blood products. In order to transfuse/infuse blood, additional apparatus, namely an infusion set (or giving set), must be rigged up. Thus they cannot be classed as a transfusion set/infusion set." The learned judge at first instance (whose judgment has been reported: Comptroller-General of Customs v Baxter Healthcare Pty Ltd (1995) 41 ALD 251) held that these reasons disclosed an error of law. He also held that, as a matter of law, the packs in question are "part" of a transfusion/infusion set. I will return to the second point, which depends on the construction of the tariff item, but it is necessary to note that the first point was an independent one, stated by his Honour (at 258) as follows: "While the decision-maker gave its reasons as to why the blood pack was not a set, it failed to develop or expose its reasons on the second question, namely whether the blood packs were parts of a set. There is no reference to what is meant by 'parts', or as to what constituted 'the whole', in the present matter. Although the decision-maker purported to apply the text quoted [scilicet test stated] by Gibbs J., there is no indication as to how it was applied, or by what process the conclusion was reached. Such a central matter should not be left to speculation by the parties as to the possible reasoning. This failure to set out the reasoning process, in my view, amounts in itself, to an error of law." At the hearing of the appeal, counsel for the Comptroller-General relied on the same process of reasoning. He said: "In order to see whether the blood packs constituted part of a set you need to know what the set is so the fundamental question here is, well what comprises a transfusion/infusion set in the Customs Act [sic] and you will not find an answer in the AAT because it never tackled that question. That is the fundamental error that was made." I have set out the tenor of the Tribunal's reasoning at some length, because it was necessary to do so to demonstrate why I cannot accept these arguments. It seems to me to be unreal to suggest that the Tribunal left any room for doubt as to the sense in which it understood the packs were suggested to be "parts" so as to fall within the tariff item; equally unreal to suggest that the Tribunal left any room for doubt as to what was the statutory meaning of "infusion or transfusion sets for blood or other fluids" for which the Comptroller-General had contended, and which it rejected; and, finally, wrong to think the Tribunal left unanswered the question what it is that the tariff covers by the expression "infusion or transfusion sets for blood or other fluids". There was in truth no scope for confusion. For, as I have indicated, only one argument was presented to support the contention that the packs fell within the tariff item. Since they contained no relevant needle or other closure-piercing device, delivery tube or flow regulator, nor any of the other items referred to in the Australian Standard for an infusing set for general medical use, being virtually confined to a bag with inlet and outlet ports, it was never in dispute that they could not in themselves constitute infusion or transfusion sets. The contention, and the only contention, was that such a set must be regarded as including the pack from which the blood was to be transfused. The reason why this was said to be so was that you could not have a blood transfusion without blood, and the blood "comes in a pack, and you need a giving set which is inserted into that pack and the two items together are the apparatus required for a blood transfusion" - to quote Dr Wylie. The whole case depended on this proposition, since, plainly enough, if the infusion or transfusion set included the pack, ex hypothesi the pack was part of the infusion or transfusion set. In my opinion, if the Tribunal's reasons are considered, not hypercritically but fairly, with a view to ascertaining the process of reasoning involved, it will be apparent that they do satisfactorily reveal the basis of the conclusions reached. The Tribunal drew attention to the difference between, on the one hand, the packs in which blood was collected and contained upon and after donation, stored, processed in some cases (and in most hospitals then pooled prior to infusion), and from which it was transfused when transfusions occurred, and, on the other hand, the "giving sets" which were required before blood or any blood products could be infused into a patient. The Tribunal described this dichotomy as a "fundamental point". It found that there was a standard for the giving sets, which were known as "infusing sets for general medical use", and that none of the components of an infusing set was contained within the subject goods, the subject goods having an essential function that was to collect and store blood and blood products. The Tribunal noted the dictionary meanings of "transfusion" and "infusion", which have nothing to do with storage. Once the facts were analysed in this way, and it was found that the packs' "essential function is to collect and store blood and blood products", while there existed sets known as "giving" or "administration" or "infusing" sets the function of which was to infuse blood and other products into patients, it seems to me that the conclusion actually reached by the Tribunal was quite inevitable. It held that "an infusion set (or giving set)" is an "additional apparatus", ie. additional to the packs, and that the packs "cannot be classed as a transfusion/infusion set". That last conclusion is expressed tersely, but, having regard to the argument under consideration, it must mean that the packs cannot be "classed as" sets within the tariff sub-item as they would be by virtue of Note 2(b) if the sub-item referred to sets (of which they would be parts) comprising both the container of blood or blood products to be transfused and the apparatus for carrying out the transfusion. That is because the tariff sub-item is not wide enough to include the storage packs from which the blood is transfused, but simply refers, in the Tribunal's view, to "an infusion set (or giving set)". Although the argument for the Comptroller-General had only been put on the basis I have mentioned, that the tariff sub-item referred to sets which included the storage packs, the Tribunal in the course of its reasoning also dealt with a possible argument arising out of the evidence of Dr Wylie. Dr Wylie's suggestion that the packs were essential to the functioning of the administration sets appears to have prompted the Tribunal to refer to the remarks of Gibbs J and Davies J in the cases which have been cited. What their Honours said made it clear that the fact that something is essential to the functioning of something else does not make the first thing a part of the second. The film cartridge in the Polaroid Australia case was as essential to the functioning of the camera in any useful way as the pack of blood or other product was, in Dr Wylie's view, to the functioning of an infusing set. The fact that these additional comments were strictly unnecessary does not mean that any error was involved in the Tribunal's making them. For these reasons, I do not think the Tribunal's reasoning discloses any error of law of the kind alleged. Even if I had been of the opinion that the Tribunal erred in its reasoning on the issues in question, there would have remained a further obstacle in the path of the Comptroller-General. As has been indicated earlier in these reasons, and as I pointed out during the argument of this appeal, it seems to me that the question whether the tariff item covers a composite set including the blood packs under consideration is either to be answered as a matter of law, or at least involves a question of law whether it was open to the Tribunal, on the facts which it found in this case, to have given any other answer than that which it gave. If, on either basis, the actual decision reached by the Tribunal should be supported, the appeal ought not to have been allowed by the learned Judge at first instance. When the Customs Tariff Act 1987 was enacted, it included Heading 9018, but not the sub-item with which we are concerned. 9018.90.00 then read "Other instruments and appliances". By the Customs Tariff Amendment Act 1988, the previous 9018.90 was omitted, and new provisions inserted, as follows: "9018.90-Other instruments and appliances 9018.90.10 ---Goods, as follows: (a)defibrillators; (b)drainage appliances (including calibrated drainage bags) with, or designed to be used with, a catheter; (c)infusion or transfusion sets for blood or other fluids 9018.90.20 ---Goods, as follows: (a)apparatus for the administration of anaesthetic gases; (b)incubators for babies; (c)suction apparatus 9018.90.90 ---Other". Then, by the Customs Tariff Amendment Act 1990, 9018.90.10 and 9018.90.20 were omitted, and there was substituted the following: "9018.90.10 ---Goods, as follows: (a)apparatus for the administration of anaesthetic gases; (b)defibrillators; (c)drainage appliances (including calibrated drainage bags) with, or designed to be used with, a catheter; (d)incubators for babies; (e)infusion or transfusion sets for blood or other fluids; (f)suction apparatus". Then, by the Customs Tariff Amendment Act 1991 and the Customs Tariff Amendment Act (No. 2) 1991, 9018.90.10 and 9018.90.20 were omitted, and there were substituted a new 9018.90.10 referring to "Defibrillators" and a new 9018.90.20 in the form set out early in these reasons, the form of the item which was relevant for the present case. It was enacted in that form by the second of the 1991 Acts on 6 December 1991. There have been further amendments since, and it is interesting to note that by the Customs Tariff Legislation Amendment Act 1995 a new sub-item (b) was added: "(b)blood packs and blood pack systems used for collecting, processing, storing and administering blood and blood components", the remaining sub-items being re-lettered accordingly. In my opinion, this legislative history is relevant. It shows that Parliament, over a short period of years, gave repeated attention to what became and was at the relevant time sub-item 9018.90.20(d). Since the Tribunal found as a fact that the sub-item was not set out in the form of a technical expression, so that the language must be given the ordinary meaning conveyed by it or a meaning arrived at by the processes of construction, it is plainly relevant to know whether at the date of the legislation there existed sets of equipment aptly described by the statutory language. The importance of this is emphasized by the reasoning in Collector of Customs v Agfa-Gevaert Ltd at 66-69. A tariff provision will often be addressed to readers familiar with a technology to which it relates, and an understanding of it will be assisted by some knowledge of that technology and of the terms commonly used in it. I have already referred to the Tribunal's findings concerning Australian Standard 2385 entitled "Single-use (sterile) infusing sets for general medical use", the components of which, as described in the Standard, suggest a set of equipment in close accordance with the statutory language. The Tribunal made no express finding as to the date of this Australian Standard, but there were in evidence a number of extracts from Walsh and Ward's A Guide to Blood Transfusion 5th edition (1990) by Gordon Archer and Grace Parker, endorsed as issued by the Australian Red Cross Society (NSW Division) Blood Transfusion Service. It was not suggested at the hearing of the appeal that the authenticity or authority of this publication was in dispute. At page 142 of it, reference is made to Australian Standard 2385, so this Standard must have been in existence at least in 1990, prior to the enactment of the sub-item in the amending Acts of 1991. At the same page 142, it is also made clear that the Standard was of general application in Australia, and that it related to what could be called "infusion sets" or "giving-sets" or "blood transfusion giving sets". The components of these sets are there stated consistently with the Tribunal's summary of the Standard. It is particularly significant that the Tribunal's reference to "a closure-piercing device" is amplified by the Blood Bank publication as follows: "A closure-piercing device for entering the blood container". This, of course, underlines the Tribunal's comment that an infusion set is an "additional apparatus", separate from a blood container. Its components include the closure-piercing device, but not the container to be pierced. It is like an oil pump which must be attached to a drum of oil in use, but which is a piece of equipment quite distinct from the drum. In my opinion, this material amply justified the Tribunal's conclusion that the statutory language does not embrace blood packs as part of infusion or transfusion sets. It also seems to me that the context in which the sub-item is found in the tariff strongly supports the Tribunal's conclusion, upon the true construction of the legislation. In Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, Viscount Simonds said: "[W]ords, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy. ... I must admit to a consciousness of inadequacy if I am invited to interpret any part of any statute without a knowledge of its context in the fullest sense of that word." The immediate context of the sub-item in question is provided by sub-items (a), (b), (c) and (e). Sub-item (a) is plainly limited to the equipment by which anaesthetic gases are administered; it would not include a storage container. In sub-item (b), the draftsman found it necessary to specify a particular form of container which it was desired to include in the sub-item, and it is plain that, apart from this, separate containers would not be included. Sub-item (c) is a self-contained piece of equipment. Sub-item (e), "suction apparatus", is not described so as to include any container utilized in connection with the apparatus. When the sub-item in question is considered in the context of the sub-items that accompany it, it is revealed as part of a series of sub-items each of which is concerned with the performance of a discrete function which will, at least in most cases, involve an association with other pieces of equipment not included in the sub-items. If, then, heeding the remarks of Viscount Simonds, one turns also to the wider context of the technology addressed, recognizing as it does the existence of sets of equipment, answering the statutory language, which did not include blood packs, the problem of construction is resolved in favour of the appellant. According to the true meaning of the statute, the sub-item does not extend to any such composite item embracing both blood packs and infusing sets as was contended for by the Comptroller-General. I should add that, in my opinion, the appeal does not involve any question whether the blood packs could have been held accessories. It was not suggested by counsel that such a question had ever been raised in the Tribunal, or before the judge at first instance. The topic of accessories was mentioned in passing in the argument on the appeal of counsel for the Comptroller-General, having been raised by a member of the Court. It was not the subject of any submission that the Tribunal had fallen into any error of law in that respect; in particular, no argument was developed that, if sub-item 9018.90.20(d) did not refer to a set which included a blood pack, the Comptroller-General could succeed on the basis that the packs were accessories to sets consisting only of infusion sets as contemplated by the Australian standard. Notwithstanding any earlier ambiguities, when the Comptroller-General filed, under s.37 of the Administrative Appeals Tribunal Act 1975, his "statement ... giving the reasons for the decision", he confined himself clearly to a case that the blood packs were "parts". The written submissions filed in this Court were similarly limited. It seems to me there is good reason why the Comptroller-General did not put forward any argument based on the word "accessories" in Note 2(b). The relevant meaning of "accessory" is given in The New Shorter Oxford English Dictionary (1993), as follows: "An additional or subordinate thing; an adjunct, an accompaniment; a minor fitting or attachment". On no view of the evidence would it be open, in my opinion, to regard the blood packs, with their independent and significant functions of reception of blood donations, storage, and use in processing and further storage and pooling of blood products, as falling within the description of an accessory subsidiary to an infusion set according to the appellant's construction of that expression. Nor, given the appellant's definition of "infusion set", could it be said that the sole or principal use for which the packs were suitable was such a subsidiary role. They unarguably have the independent and significant uses I have mentioned. Of course, if, contrary to the views I have earlier expressed, a finding were both open and were actually made, as a fact, that sub-item 9018.90.20(d) embraces composite sets including the packs, which was the Comptroller-General's submission, the packs would not be accessories of the composite sets but parts of them. In that event, the remaining question would be whether the sole or principal use for which the packs were suitable was as such parts, and again their significant independent uses would stand in the way of the submission. For these reasons, I would allow the appeal and set aside the orders made at first instance; and in lieu of those orders, I would order that the decision of the Administrative Appeals Tribunal be affirmed. However, the majority of the Court holds that the Tribunal did err in failing to provide an adequate statement of its reasoning process, and that a decision of fact either way would be open, in law, to the Tribunal. Accordingly, the appeal fails insofar as it challenges the orders, made below, setting aside the Tribunal's decision and remitting the matter to the Tribunal for reconsideration in accordance with law. But this Court does not agree with the additional findings of the trial judge designed to restrict the scope of the further hearing in the Tribunal. A right of appeal, of course, relates to a Court's orders, not its reasons: Driclad Pty Limited v Commissioner of Taxation of the Commonwealth of Australia (1968) 121 CLR 45 at 64; Landsal Pty Ltd (In liquidation) v REI Building Society (1993) 41 FCR 421; Copperart Pty Ltd v Commissioner of Taxation (1994) 50 FCR 345. Nevertheless, the form of the substantive order as made here leaves open in the Tribunal the effect of the conclusions which this Court holds to be erroneous. Had those conclusions been expressed in some declaration, it would have been set aside or varied: cf. Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395; Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569 at 1577, 1579; North Sydney Council v Ligon 302 Pty Ltd (1996) 137 ALR 644 at 646. In the circumstances, the appeal should be allowed, and an appropriate declaration should be inserted in the orders.

In issue was which item in Chapter 90 of Schedule 3 applied to double or triple blood packs imported by the appellant. Chapter 90 is found in Section XVIII. The relevant part of Chapter 90 provides: "9018 INSTRUMENTS AND APPLIANCES USED IN MEDICAL, SURGICAL, DENTAL OR VETERINARY SCIENCES, INCLUDING SCINTIGRAPHIC APPARATUS, OTHER ELECTRO-MEDICAL APPARATUS AND SIGHT-TESTING INSTRUMENTS ... 9018.90 - Other instruments and appliances 9018.90.20 - Goods, as follows: (a) apparatus for the administration of anaesthetic gases; (b) drainage appliances (including calibrated drainage bags) with, or designed to be used with, a catheter; (c) incubators for babies; (d) infusion or transfusion sets for blood or other fluids (e) suction apparatus 9018.90.90 - Other" Chapter 90 commences with notes concerning its application. Note 2 provides: "2. - Subject to Note 1 above, parts and accessories for machines, apparatus, instruments or articles of this Chapter are to be classified according to the following rules: (a) parts and accessories which are goods included in any of the headings of this Chapter or of Chapter 84, 85 or 91 (other than 8485, 8548.00.00 or 9033.00.00) are in all cases to be classified in their respective headings; (b) other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind; (c) all other parts and accessories are to be classified in 9033.00.00." Note 1 to Chapter 90 deals expressly with "parts" in a provision that says: "This Chapter does not cover: (a) ... (e) Parts of general use, as defined in Note 2 to Section XV, of base metal (Section XV) or similar goods of plastic (Chapter 39);" The definition of "parts of general use" in Note 2 to Section XV refers to goods in specified items in Section XV. Without repeating what each specified item says in full, they relate to articles which are tubes, pipes, wire, ropes, cables, chains, nails, screws, bolts, locks, mounting fittings, clasps and sign plates or letters. The result is that those articles are parts of general use for the purposes of Section XV and, if made of base metal or plastic, are also parts of general use for the purposes of identifying a limit on the scope of Chapter 90. The Chapter does not apply to those types of parts. The prefatory words to Note 2 of Chapter 90 identify the subject matter of Note 2 as "parts and accessories for machines, apparatus, instruments or articles". It was common ground in this appeal that para (a) did not apply to the blood packs. Paragraph (b) contains several elements. The clause commencing "if suitable..." and concluding with the closing bracket may qualify only the word "accessories". That view is supported by the structure of para (b). It is also supported by what I view as the meaning of the clause and, in particularly, the meaning of the expression "suitable for use ... principally". It is not an apt expression to use to qualify the word "parts" if that word is given its ordinary meaning of something which, with others, make up a whole. I discuss the meaning of the word "parts" more fully shortly. However, as Merkel J points out, the words "other parts" in para (c) are otiose if the clause in para (b) does not qualify the word "parts" and for that reason I agree with Merkel J that it does. The operation of the clause depends on there being included in a chapter a reference to a machine, instrument or apparatus of a particular kind or that a number of machines, instruments or apparatus are identified in the one heading. The part or accessory must be suitable for use solely or principally with that kind of machine, instrument or apparatus or, if a number, with each of them. The words "if suitable for" direct attention to the characteristics or features of the goods that render them suitable for use of a particular type. It is likely that if something has characteristics that would indicate it was suitable for use solely with something else, it is also likely that it will be used solely for that purpose. However, the same is not obviously so of something that has characteristics that would indicate that it was suitable for use principally with another thing. The reference to its future use in terms of its principal use involves the acceptance of, at least potentially, a subsidiary use. Thus it may have characteristics that would indicate that it was suitable for use principally with one thing, even though in fact, it is used with another thing in a way that manifests its subsidiary use. This distinction has some significance in the present proceedings. I will return to it after surveying some authorities dealing with the meaning of the word "parts" and "accessories". What is comprehended by the word "parts" and the word "accessories" has been considered by this Court and the High Court on a number of occasions. In Deputy Commissioner of Taxation v Polaroid Australia (1972) 46 ALJR 32, Gibbs J considered its meaning in a Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 - 1967 (Cth). The Schedule included the following items: "36. Cameras (including cinematographic and stereo cameras), photomatons and machines for taking photographs ... 37. Photographic enlarging and reducing apparatus ... 38. Accessories and parts for goods covered by items 3 or 37 in this schedule." (emphasis added) The meaning of the words "parts" and "accessories", arose in relation to the status of film packs and picture rolls used with a Polaroid camera. The schedule did not refer to accessories in the context of their suitability for a sole or principal use. His Honour observed that a thing "does not become a part of another simply because the latter thing cannot be put to proper use without the aid of the former, even if, in use, the two things are fixed together". Gibbs J illustrated the point by indicating that a film was not part of a camera in the same way as a bullet is not part of a gun or petrol is not part of a motor car. His Honour went on to agree with the observations of Owen J in Deputy Commissioner of Taxation v Fowler Rex (NSW) Pty Ltd (1967) 118 CLR 160, that the word "parts" described those things that in ordinary parlance would be described as spare parts for the various classes of goods mentioned. Gibbs J also concluded that the film packs and picture rolls were not accessories for a Polaroid camera. His Honour took the view that an "accessory" is an adjunct, which itself is defined as something joined to another but subordinate, as auxiliary, or dependent upon it. His Honour said an accessory for a camera is an extra and additional part of the equipment of the camera itself. Gibbs J instanced a light meter, filter or wide angle lens as accessories. The issue of what "parts" means arose again in Waterscheid Australia Pty Ltd v Collector of Customs (1987) 7 AAR 555. Davies J was addressing whether a power take off shaft, which was designed to be attached to a stub of a tractor to provide power to equipment external to the tractor, was comprehended by an item in Schedule 3 of the Customs Tariff Act 1982 (Cth) which referred to "parts and accessories for motor vehicles" Motor vehicles were relevantly identified as "tractors ... whether or not fitted with power take offs". His Honour reviewed a number of authorities including some from the United States and concluded that the appropriate test of what was a "part" was that articulated by Gibbs J in Polaroid Australia (supra), namely that a part is something with which others make up a whole. His Honour rejected the contention that a "part" was something that was essential to the functioning of the whole. He instanced ashtrays and armrests in a motor vehicle which I take to be an illustration of something which are parts of a motor vehicle but not essential to their operation. Davies J went on to consider what was meant by the word "accessory". His Honour concluded that the Tribunal had applied an incorrect test in determining whether a power take off shaft was an accessory. The Tribunal had determined that the shafts played no part in relation to the principal function of the tractor and accordingly could not be described as an accessory. Davies J pointed out that an accessory is an extra or additional part of something and need not relate to the essential function of the thing. His Honour referred to a note in the Schedule to the Customs Tariff Act 1982 which indicated that parts or accessories for goods must be "used solely or principally as parts or accessories for those goods". His Honour simply noted that this requirement was satisfied because, as a matter of fact, 95% of power take off shafts were used in relation to tractors as defined. What was a "part" was considered by Burchett J in Collector of Customs v Sharp Corporation of Australia Pty Ltd (1994) 35 ALD 589 and on appeal in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6. In issue was the status of a toner kit used with laser beam printers. The status of the toner kit arose, for present purposes, in application of Schedule 3 of the 1987 Act. It was necessary to determine which of two items applied to the kits. The first item read "8473.30 - Parts and accessories of the machines of 8471". This item was the sole item in a heading: "PARTS AND ACCESSORIES (OTHER THAN COVERS, CARRYING CASES AND THE LIKE) SUITABLE FOR USE SOLELY OR PRINCIPALLY WITH MACHINES OF 8469 TO 8472". The reference in the item to 8471 was to "AUTOMATIC DATA PROCESSING MACHINES AND UNITS THEREOF; MAGNETIC OR OPTICAL READERS, MACHINES FOR TRANSCRIBING DATA ON TO DATA MEDIA IN CODED FORM AND MACHINES FOR PROCESSING SUCH DATA, NOT ELSEWHERE SPECIFIED OR INCLUDED" The second item concerned chemical preparations for photographic uses. The Tribunal had concluded that three elements in the toner kit were "parts" of a laser printer. This determination that certain elements were parts was a step in the process of applying the General Rules to decide which of two items applied. The application of those Rules is not presently relevant. The Tribunal had concluded certain elements were "parts" on the basis that the elements were indispensable to the operation of the laser printer. Burchett J pointed out that this constituted a misunderstanding of what had been decided by Gibbs J in Polaroid Australia (supra) and Davis J in Waterscheid (supra). However, the manner in which the Tribunal reached the conclusion about the status of some three elements of the kit did not attract comment from the Full Court. In the leading judgment of the Full Court, Davies and Beazley JJ indicated that the finding of the Tribunal that the three elements were "parts" of the laser printer accorded with the earlier judgments of Gibbs J in Polaroid Australia (supra) and Davies J in Waterscheid (supra). In these proceedings the trial judge concluded that the Tribunal's decision manifest two errors of law. The first was that the Tribunal failed to set out the reasoning process by which it reached the conclusion that blood packs were not parts of the set referred to in item 9018.90.20.(d). I agree with his Honour's conclusion. In my opinion, the Tribunal has also failed to expose its reasoning process concerning the application of Note 2(b). The reasoning of the Tribunal from paras 14 to 20 of its decision involve a number of steps. It first set out the components of what Australian Standard AS 2385 described as a "single-use (sterile) infusing sets for general medical use". It noted that blood packs were not one of the identified components. It then referred to evidence of Dr Wylie that two pieces of equipment were needed for transfusion or infusion, that the term infusion set was confusing and it was necessary to talk about the giving set and the blood pack. The Tribunal then referred to definitions of "transfusion" and "infusion" and an earlier decision of the Tribunal about what is a "set". It is in this context that the Tribunal then said the blood packs cannot be described as parts of a transfusion/infusion set. Reference was then made to Burchett J's judgment in Sharp Corporation (supra) and that of Davies J in Waterscheid (supra). The Tribunal then referred to the essential function of blood packs, namely the collection and storage of blood and blood products, noted that an infusing or giving set was required to infuse or transfuse blood, and expressed the ultimate conclusion that the blood packs cannot be classed as a transfusion/infusion set. In this context, the consideration by the Tribunal of whether the blood packs were parts was directed only to whether they were or were not part of a set of the character identified in item 9018:90:20(d) and, as Merkel J discusses, did so without identifying what comprised the set and explicitly eliminating the possibility that the blood packs and the giving set were a set comprehended by the item. The decision of the Tribunal was to set aside a decision of the Comptroller-General classifying the goods "to sub-heading 9018:90:20" and to substitute a decision that "the goods are properly classified to subheading 9018:90:90". To have reached this conclusion, the Tribunal would ordinarily have considered and rejected the possibility that the blood packs were "parts or accessories ..... suitable for use solely or principally" with "infusion or transfusion sets for blood or other fluids". While the Tribunal concluded the blood packs were not "parts" of infusion or transfusion sets, that conclusion was not expressed to be by reference to Note 2(b). Indeed, Note 2(b) was not mentioned in the decision. The Tribunal was, in my opinion, required to address the operation of Note 2(b). It might be inferred it did because it expressed the view in para 19 of its reasons that blood packs were not parts of a transfusion/infusion set. However the Tribunal appears to have determined that the blood packs were not parts, not when considering the application of Note 2(b), but rather as a step in the process it did not complete of determining what was a set. Moreover the decision of the Tribunal does not deal with the question of whether the blood packs were accessories. That the blood packs were accessories was, at least arguably, an issue raised in the proceedings by the terms of Note 2(b) and by the evidence. There was material before the Tribunal including the "Statement of findings on material questions of fact and law" prepared by the Australian Customs Service ("the Service") for the purposes of s 37 of the Administrative Appeals Tribunal Act 1975, and letters from the Service to the appellant of 9 February 1994 and 11 July 1994 determining the classification, which make it clear that the Service was relying on Note 2(b) as the basis for classifying the blood packs under item 9018.90.20 It may be accepted that whether they were "accessories" appears not to have been an issue that assumed any prominence before the Tribunal. We do not have a record of the submissions made to the Tribunal other than the s 37 statement which said, under the heading "Reasons for Decision", the blood packs were classified as "parts" and were "suitable for use solely or principally "with infusion or transfusion sets"". However, from the material before us, the scope of the inquiry was not limited to whether the blood packs were parts. The following appears in the transcript of the proceeding: "MR HEAZLETT: Mr Ross, from your experience, would you describe a blood collection pack as being a part or an accessory for an infusion or transfusion set and with ... MR JEFFREY: Objection. (THE TRIBUNAL): Yes. That is the question I have got to decide eventually." Mr Heazlett was appearing for the appellant. The question was asked presumably to have the witness, who was an employee of the appellant, say that the blood packs were neither parts nor accessories. The Tribunal appeared to accept that their status as either was a matter he must address. Moreover, in the letter from the Service of 11 February 1994, the classification of 9018.90.20 was justified on the basis that: "The goods are identified as an integral component of blood transfusion apparatus/sets. The application of ch 90 note 2(b) therefore places the classification of these goods to 9018.90.20." This determination that item 9018.90.20 was the correct classification resulting from the application of Note 2(b) was not based on the blood packs being parts rather than accessories. That was left open. In the later letter of 11 July 1994 the determination was expressed to be made on the basis that: "The effect of this is that the blood packs are considered proper to 9018.90.20 as parts or accessories to transfusion apparatus by application of chapter 90 note 2(b)." (emphasis added) The Service, whether entitled to do so or not, was relying on the goods being either parts or accessories in justifying the determination that item 9018:90.20 was appropriate. As indicated earlier, both these letters were before the Tribunal. Further, in a statement of evidence of a witness called by the Comptroller-General, Mr Stuart Myers, the following appears in a discussion about the blood packs: "8. The features of these goods that make them purpose-built for use in transfusions are: (1) Entry port (2) Hanging loop (3) Side loops (4) Pack size (5) Plastic formulation (6) Anticoagulant'/preservative volume and formulation (7) Product labelling (8) Numbered donor line. 9. I consider that the goods are transfusion apparatus used in the transfusion process in conjunction with the transfusion or infusion sets as described by tariff item 9018.90.20." (emphasis added) The import of this evidence is that while the blood packs are not transfusion or infusion sets they are used in conjunction with them. That view is indicated after a description is given of features of the goods designed to establish they are purpose built for use in transfusions. This evidence is fairly clearly directed to establishing that the blood packs, while not parts, were accessories. In order to determine whether the blood packs were accessories, if they were not a constituent of a set of the type referred to in item 9018.90.20(d), it would have been necessary to consider the role they played in relation to the set. Part of that inquiry would involve consideration of whether the blood packs are "suitable for use solely or principally" with infusion or transfusion sets in the way I earlier discussed. Having regard to the views of Gibbs J in Polaroid Australia (supra), it may also involve consideration of whether the blood packs had a subordinate or ancillary role to the infusion/transfusion set. Arguably, that is to be assessed only in the context of the use of the blood packs with infusion or transfusion sets. That is, when blood or other fluids within them are being transfused or infused. Assuming the blood packs are not a constituent of a set of the type referred to in item 9018.90.20(d), the evidence before the Tribunal would indicate that the blood packs are not suitable for use solely with infusion or transfusion sets. Whether they are suitable for use principally with those sets appears to be a question at large having regard to the evidence, though arguably they are. The evidence before the Tribunal suggests the following. Each pack in a multiple blood pack is purpose built to be used with an infusion or transfusion set. At least the pack containing the red blood cells is, ordinarily, then used with an infusion or transfusion set to transfuse or infuse its contents into a patient. Some of the individual packs containing plasma are also used with an infusion or transfusion set to transfuse of infuse plasma into a patient. The proportion of the double or triple blood packs used for this purpose, when compared with the use of them essentially for storage, appears only to have been addressed by a Mr Ross, and his evidence, in my opinion, is by no means clear. It was not a matter in respect of which the Tribunal made any finding. In any event, as I earlier pointed out, Note 2(b) raises for consideration "suitability" not "actual use". If the failure of the Tribunal to deal in its reasons with the question of whether the blood packs were accessories suitable for use principally with infusion and transfusion sets was the only apparent error and that contention had not been actually pressed on the Tribunal, then a real issue would arise as to whether an error of law occurred because it did not deal with it. There is authority that suggests that an error of law would not be manifest by the failure of the Tribunal to make a finding it was not asked to make: see Commissioner of Taxation (Cth) v Raptis (1989) 89 ATC 4994 at 4999, Secretary, Department of Social Security v Salvona (1989) 10 AAR 521 at 526-527 and Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18. There is, however, now a body of authority to the contrary, at least where the matter not addressed by the Tribunal is of fundamental importance or of sufficient significance: see Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1 at 8, Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361, Thomas v Repatriation Commission (1994) 50 FCR 112, Mocan v Refugee Review Tribunal (1996) 42 ALD 241. There would be a further difficulty for this Full Court because the proceedings before the trial judge appear not to have been conducted on the footing that there was an issue about whether the blood packs were accessories or that the Tribunal failed to address the question. It must be said, however, that the question of whether the blood packs were accessories was raised by the Court in the appeal, and counsel for the Comptroller-General relied on the reference in Note 2(b) to "accessories" and submitted it applied to the blood packs. But the first error of law identified by the trial judge concerned the failure of the Tribunal to set out its reasoning process in relation to the application of Chapter 90 prior to a consideration of Note 2(b). The inadequacy of the reasons does not depend on the Tribunal not having dealt with the issue of accessories. But the fact that it did not, lends further support to the view that they were inadequate. In Muralidah v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 a Full Court set aside a decision of the Refugee Review Tribunal because it had failed to comply with a statutory requirement to give reasons. In the leading judgment Sackville J surveyed a number of authorities (at 94-96) dealing with the content of the obligation to give reasons. Much of what his Honour said accorded with the later cautionary remarks of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR at 271 - 272. As to the rationale underlying a statutory duty to give reasons, Sackville J referred to the adoption by the Full Court in Rich River Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 of the observations of Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507 concerning what might be the response of an unsuccessful party: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." In the present proceedings, the Comptroller-General was not placed in the position postulated by Woodward J, by the reasons given by the Tribunal. The inadequacy of the Tribunal's reasons discloses an error of law. The second error of the Tribunal identified by the trial judge concerned the determination of the Tribunal that the blood packs could not be described as parts of a transfusion/infusion set. His Honour expressed the view that it was inevitable, on the facts of the present case, that the packs must be regarded as part of such a set. As pointed out by Merkel J, whether they are parts, or indeed accessories, and the application of Note 2(b) will involve both issues of fact and law. So much is also apparent from the more general discussion by Burchett J of the applicable law with which I agree. Implicit in a conclusion that an administrative body has erred in law by failing to give adequate reasons is acceptance of the possibility that findings of fact were not made which should have been made or, perhaps more remotely and somewhat artificially, findings were made but not articulated. In those circumstances it is not open to the Court, in my opinion, to then call in aid such findings of fact that were made, or make findings itself, to found a concluded view that, as a matter of law, a statutory provision applied to the events or circumstances raised in the proceedings with a particular result. In this respect, his Honour erred in determining that the conclusion must inevitably be reached, as a matter of law, that the blood packs are parts of an infusion or transfusion set if, as appears to be the case, his Honour was intending to determine conclusively how Note 2(b) operated on the goods in question. I would allow the appeal with costs and, for the reasons given by Burchett J having regard to the decision of the majority, declare that the Tribunal is not obliged by law to find that the blood packs in question were parts of "infusion or transfusion sets" within Tariff classification 9018.90.20(d) I certify that this and the proceeding twenty-two (22) pages are a true copy of the Reasons for Judgment of Justice Moore. Associate: Alexandra George Date: 19 February 1997

Collector of Customs v Pozzolanic Enterprises Pty Ltd

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