Comptroller-General of Customs v Sulo MGB Australia Pty Ltd

Federal Court of Australia|2017-03-27|Before: Moshinsky J

The appeal be allowed.
The decision of the Administrative Appeals Tribunal made on 17 February 2016 at Melbourne be set aside.
The matter be remitted to the Administrative Appeals Tribunal for redetermination according to law.
By 4.00 pm on 31 March 2017, each party file and serve a submission (of no more than two pages) on costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The respondent (Sulo) manufactures mobile garbage bins commonly known as 'wheelie bins'. Sulo imports plastic wheels fitted with a solid rubber tyre having a diameter of 200 mm for the wheelie bins. This case concerns the correct classification, for customs tariff purposes, of the wheels. 2 The Administrative Appeals Tribunal (the Tribunal) decided that the wheels should be classified to subheading 8716.90.00 of Sch 3 to the Customs Tariff Act 1995 (Cth) (the Tariff Act). That subheading is for parts of vehicles falling within heading 8716 of the Schedule. That heading relevantly refers to "other vehicles, not mechanically propelled". The Tribunal considered that the wheelie bins fell within the meaning of "other vehicles, not mechanically propelled", and accordingly that the wheels should be classified as "parts thereof". 3 The applicant (the Comptroller) challenges that classification of the wheels. The Comptroller contends, in brief summary, that: (a) the Tribunal erred by not considering other possible classifications of the wheelie bins; and (b) the Tribunal erred in its construction of the expression "other vehicles, not mechanically propelled" in heading 8716. 4 The practical significance of the dispute is as follows. A tariff concession order is in place for "WHEELS, NON-INFLATABLE, rubber and/or plastic, having a diameter NOT exceeding 400 mm" (TC 0512190) (the TCO) which is 'keyed' to subheading 8716.90.00 of Sch 3 to the Tariff Act. If the wheels are properly classified to subheading 8716.90.00, they are eligible for the TCO. However, if the wheels do not fall within that subheading, the TCO is inapplicable, and there is no available reduction to the relevant customs duty rate. 5 My conclusions in relation to the two matters raised by the Comptroller and set out above are, in summary, as follows: (a) As a matter of principle, I accept the proposition that there can be only one proper classification of the wheelie bins, and this must be determined consistently whether the case is directly concerned with the classification of wheelie bins or is concerned with the classification of the wheels as a "part thereof". However, in light of my conclusion in relation to the Comptroller's second contention, it seems unlikely that the wheelie bins would be considered to fall within the description "other vehicles, not mechanically propelled" in heading 8716. (b) The Tribunal erred in its construction of the words "other vehicles, not mechanically propelled" in heading 8716. In considering the meaning of this expression, the Tribunal was required to consider, not just the text and explanatory materials for Chapter 87, but other headings and subheadings in Sch 3 likely to apply to wheelie bins. The ambit of these headings and sub-headings, on their proper construction, is a relevant and necessary consideration in determining the meaning of heading 8716. On its true construction, the word "vehicles" refers to something constructed for the primary purpose of transporting goods or people. 6 Accordingly, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for redetermination according to law. On the assumption that the wheelie bins were not vehicles as described in heading 8716, the wheels would not be classified to subheading 8716.90.00. The Tribunal would then need to consider other possible classifications for the wheels. 7 References in these reasons to Sections, Chapters, headings and subheadings are to Sections, Chapters, headings and subheadings in Sch 3 to the Tariff Act. In these reasons, I will use the expressions "mobile garbage bin" and "wheelie bin" interchangeably.

Procedural background 8 On 22 November 2014, an officer of the Australian Customs and Border Protection Service made an initial decision in relation to the mobile garbage bin wheels (Model M-2) imported by Sulo. This decision classified the wheels to subheading 4012.90.00 (solid or cushion tyres of rubber - other), using rule 3(c) of the Interpretation Rules set out in Sch 2 to the Tariff Act (the Interpretation Rules). (Extracts from the Interpretation Rules are set out below.) 9 On 28 January 2015, an officer of the Australian Customs and Border Protection Service, on an internal review of the initial decision, decided that the mobile garbage bin wheels were properly classified to subheading 4012.90.00 and therefore were not eligible for the TCO (the Internal Review Decision). The decision-maker applied rules 3(c) and 6 of the Interpretation Rules to arrive at this decision. 10 Sulo applied to the Tribunal for review of the Internal Review Decision. 11 On 17 February 2016, the Tribunal decided to set aside the Internal Review Decision and, in substitution therefor, determined that the wheels were to be classified to subheading 8716.90.00 and (as a consequence) were eligible for the TCO: Sulo MGB Australia Pty Ltd v Chief Executive Officer of Customs [2016] AATA 78 (the Reasons). 12 The Comptroller 'appeals' to this Court on a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The amended notice of appeal raises two questions of law which are set out below.

The decision of the Tribunal 13 The Tribunal noted at [3] of the Reasons that the Comptroller conceded that Sulo imported the wheels for use with its mobile garbage bins and that the wheels were parts for those bins. The Tribunal also noted, at [4], that the Comptroller accepted that, if the goods were properly classified to subheading 8716.90.00, then the goods came within the terms of the TCO. 14 The Tribunal stated, at [7], that the starting point in resolving questions of tariff classification was to identify the goods in their condition as imported. The Tribunal referred (at [8]-[10]) to Anite Networks Pty Ltd v Collector of Customs [1999] FCA 26 at [26] per Einfeld, Carr and Lehane JJ; Vernon-Carus Australia Pty Ltd v Collector of Customs (1995) 21 AAR 450 at 454-456 per Northrop J; and Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449 at 463 per Morling and Wilcox JJ. 15 The Tribunal considered the identification of the goods in some detail at [11]-[16]. After noting the Comptroller's concessions (see [13] above) and the statement in the Comptroller's statement of facts and contentions that the subject goods as imported were plastic wheels fitted with a solid rubber tyre having a diameter of 200mm, the Tribunal made the following observations about the wheels: 12. I had in evidence an example of an item the subject of this case. While I agree with the description and identification offered by Mr Millea [the solicitor for the Comptroller], I wish to add two further observations. As was stated in Tridon, in identifying the goods in question, I may have regard to their design features and their suitability for a particular use where that appears from inspection. The wheel itself has, as an integral component, a hollow stub axle housing into which the axle is inserted. In addition, that stub axle housing has, at its far end, a steel spring-loaded pin. I have no doubt that an informed observer would conclude that the steel spring-loaded pin is designed to fit into a particular axle which has a groove cut into it to accommodate the pin. That would prevent the wheel from working its way off the axle as the wheel is rotated. In other words, the wheel, tyre and axle housing have been specifically designed to fit onto a purpose-built axle, and not designed for any other use. 13. In addition, I had in evidence the assembly instruction for Sulo's plastic mobile garbage bins. It depicts the wheel with its spring-loaded locking pin being pushed onto a steel axle at the base of the bin so that the locking pin retracts as the wheel is pushed on and then returns to its original position as it slips into the groove in the axle. The outer end of the axle on the base of the Sulo bins is machined to a conical taper so as to allow the wheel to lock into place when pushed onto the axle in the course of assembly. 14. Given the fixed size of the stub axle housing and its locating steel spring-loaded pin, there can be little room for doubt that the item in question was made specifically for the purpose of being fitted to a mobile garbage bin manufactured by Sulo. There was no evidence that it could have any other use in the condition it was imported. While I have indicated that the item itself is comprised of two essential components, the solid rubber tyre moulded onto a plastic rim from which is extruded a hollow stub axle housing, I find that the correct identification of the item is that it is a plastic wheel. 16 The Tribunal found, at [16] of the Reasons, that the wheels were a part of Sulo's wheelie bins. 17 At [17], the Tribunal stated that, according to the Comptroller, the only headings and subheadings which were likely possibilities (I infer, for classification of the wheels) were: 3924 TABLEWARE, KITCHENWARE, OTHER HOUSEHOLD ARTICLES AND HYGIENIC OR TOILET ARTICLES, OF PLASTICS: 3924.90.00 -Other 3926 OTHER ARTICLES OF PLASTICS AND ARTICLES OF MATERIALS OF 3901 TO 3914.00.00: 3926.90.90 -Other 4012 RETREADED OR USED PNEUMATIC TYRES OF RUBBER; SOLID OR CUSHION TYRES, TYRE TREADS AND TYRE FLAPS, OF RUBBER: 4012.90.00 -Other 8716 TRAILERS AND SEMI--TRAILERS; OTHER VEHICLES, NOT MECHANICALLY PROPELLED; PARTS THEREOF: 8716.90.00 -Parts As will be noted below, on appeal, the Comptroller submitted that some additional classifications may also be possibilities. 18 The Tribunal set out (at [18]-[19]) extracts from s 7 of the Tariff Act and the Interpretation Rules. 19 The Tribunal stated, at [20], that there was no dispute that the goods in question were comprised of at least two and possibly three discrete materials, that is, rubber, plastic and a small component of steel. Accordingly, the Tribunal stated, the wheels should be classified according to the principles of rule 3 of the Interpretation Rules. 20 The Tribunal considered that it was possible to identify a material or component which gave the goods their essential character (see rule 3(b), set out below). The Tribunal found (at [21]): "Given the integral nature of the different materials, and their sole purpose being to construct a functioning and usable wheel, their essential character is that of a plastic wheel." 21 The Tribunal then noted (at [22]) that headings 3924 and 3926 (being two of the headings referred to by the Comptroller as likely possibilities) fell within Chapter 39 which dealt with plastics and articles thereof. The Tribunal referred to the Notes to Chapter 39 which provided (in note 2) that the Chapter did not cover "[p]arts of aircraft or vehicles of Section XVII". Having noted this exclusion, the Tribunal accepted (at [26]) the submission on behalf of Sulo that the first step was to establish whether the goods came within Section XVII. The Tribunal said that, in order to address this question, it needed to ask whether Sulo's mobile garbage bins were properly characterised as non-mechanically propelled vehicles (at [28]). 22 It is convenient to note at this point that there is no issue that, if Sulo's wheelie bins fall within heading 8716 (which covers "other vehicles, not mechanically propelled"), then the wheels were properly classified to subheading 8716.90.00 as parts of such vehicles. 23 The Tribunal referred to certain dictionary definitions of "vehicle" and emphasised the need to take into account the context in which the word was used (at [29]-[30]). The Tribunal set out the Comptroller's submissions which were to the effect that "the character of Sulo's mobile garbage bin is that of a rubbish bin to hold rubbish and not to transport people or goods" (at [33]-[35]). The Tribunal made the following observations on these submissions (at [36]): Respectfully, the obvious problem with Mr Millea's contention is that the goods in question are parts of a purpose-built rubbish bin, described as a wheelie bin. It is not simply a rubbish bin. If a person wished to acquire a bin for storing rubbish, they would not necessarily pay for a purpose-built wheelie bin. The converse is also true. If the person wished to acquire a rubbish bin for the purpose of moving rubbish on a regular basis, they would acquire one which was capable of transporting that rubbish without lifting and carrying it. Furthermore, because rubbish is collected from the curb-side on most properties, it is difficult not to conclude that the purpose of a wheelie bin is to convey rubbish to the curb-side so that it can be collected. It is not only a storage device. If one wished to store one's rubbish, and not have it removed through a regular collection, then there would be no purpose in acquiring a wheelie bin. 24 The Tribunal referred (at [34]) to a submission by the Comptroller that, in this case, the Explanatory Notes to the Harmonised Commodity Description and Coding System (the Harmonised System Notes) should not be used as an aid to construction. The Tribunal referred (at [37]-[40]) to cases which have considered the circumstances in which reference may be made to the Harmonised System Notes, including Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 at 120 per Beaumont J; Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282 per Black CJ and Heerey J. The Tribunal accepted, implicitly if not explicitly, that the expression "other vehicles, not mechanically propelled" was ambiguous and thus that recourse could be had to the Harmonised System Notes (at [41]). 25 At [42], the Tribunal set out the following extract from the Harmonised System Notes for heading 8716: This heading covers a group of non-mechanically propelled vehicles (other than those of the preceding headings) equipped with one or more wheels and constructed for the transport of goods or persons. It also includes non-mechanical vehicles not fitted with wheels (e.g., sledges, special sleds running on timber trackways). The vehicles of this heading and designed to be towed by other vehicles (tractors, lorries, trucks, motor cycles, bicycles, etc.), to be pushed or pulled by hand, to be pushed by foot or to be drawn by animals. The heading includes: (A) … (B) Hand- or foot-propelled vehicles. This group includes: (1) Trucks and trolleys of various kinds including those specialised for use in particular industries (in the textile or ceramic industries, in dairies, etc.). (2) Wheelbarrows, luggage-trucks, hopper-trucks and tipping-trucks. (3) Food carts, buffet trolleys (other than the type falling in heading 94.03), of a kind used in railway stations. (4) Hand-carts, e.g., for waste disposal. (5) … (6) Small insulated barrows for use by ice cream vendors. (7) Tradesman's barrows of all kinds. These lightweight vehicles are sometimes fitted with pneumatic tyres. … (Emphasis in original.) 26 The Tribunal observed (at [43]) that many of the items referred to in the above extract "would not normally be described as a vehicle". The Tribunal continued: "In fact items such as food carts and buffet trolleys are not only used to convey goods but are also frequently used to store goods. Nevertheless, they are intended to be classified as not mechanically propelled vehicles." 27 The Tribunal set out (at [43]) the following passage from the section of the Harmonised System Notes dealing with "hand- or foot-propelled vehicles" in heading 8716: This heading does not cover: (a) Walking aids known as "walker-rollators", which generally consist of a tubular metal frame on three or four wheels (some or all of which may swivel), handles and handbrakes (heading 90.21). (b) Small wheeled-containers (e.g., wheeled-baskets) of basketwork, metal, etc., not incorporating a chassis, of a kind used in shops (classification according to their constituent material). (Emphasis in original.) 28 After that extract, the Tribunal stated (at [43]): It appears to me that the exclusion of small wheeled containers not containing a chassis points to a significant difference between an article which falls within the classification in Heading 8716 and one which does not. That is, Heading 8716 is intended to apply to vehicles which have significant load-bearing capacity. Ordinarily, that is what one would understand by the expression vehicle. While the dictionary definitions simply refer to the transport of persons or goods, underlying that definition is the understanding that those persons or goods are not items which can be readily lifted and carried to the intended destination. Usually, wheels are used to facilitate the movement. 29 The Tribunal then referred to a dictionary definition of the word "chassis" (being "the frame, wheels, and machinery of a motor vehicle, on which the body is supported"). (The Tribunal's reference to "chassis" was apparently prompted by the reference to "chassis" in the second exclusion in the extract from the Harmonised System Notes set out in [27] above.) The Tribunal then stated (at [44]-[46]): 44. Generally, the chassis of a vehicle is purpose-built, dependent upon the load it is intended to carry. The wheels are attached to the chassis (sometimes with suspension devices to limit shock induced by uneven ground and sometimes without suspension devices) and not to the body or any other part of the vehicle. Hence, for example, a wheelbarrow generally has a metal or wooden chassis to which is attached the barrow or receptacle to hold the goods intended to be transported. The wheel is attached to the frame or chassis, not to the barrow. That arrangement is quite different to items such as luggage bags or suitcases with wheels attached. The wheels in those applications often are not attached to a chassis or frame and are not designed to be load-bearing. That is, whatever is placed in such items can reasonably be carried. The wheels simply provide a more convenient means of moving the article and its contents from time to time, over relatively short distances. 45. While the Sulo wheelie bins are a moulded plastic bin incorporating a handle and a fitted lid, an examination of the Assembly Instruction which was in evidence discloses solid plastic extrusions at the base of the bin designed to hold the axle to which the wheels are fixed. It is not unrealistic to describe those extrusions as forming a chassis onto which the bin is moulded. Were the axle simply inserted through the walls of the bin, which are clearly not designed to support load, constant pounding forces transmitted through the wheel to the axle when the load is moved over uneven ground would cause it to fail in a very short period of time. It is the chassis which makes the wheelie bin a load-bearing article. In fact, Sulo's wheelie bins have substantial load-bearing capacity. The materials which were in evidence before me describe the maximum load, which varies with the size of the bin, to be between 48 and 96 kg. The wheelie bins are described as having multiple applications, including commercial and industrial waste. They are also described as being able to withstand exposure to high levels of mechanical stress. In fact Sulo also manufactures what is described as a Bin Hitch which enables its bins to be attached to the towbar of a motor vehicle for the purpose moving heavy loads, particularly up steep inclines. 46. In my opinion, the items referred to in the [Harmonised System Notes] are entirely consistent with those articles described by Heading 8716 of the Tariff Act. The fact that small-wheeled containers without a chassis are excluded from the classification is also consistent with the items of Heading 8716 in the Tariff Act. They are all load-bearing devices which, necessarily, have the wheels attached to a chassis. With respect to Mr Millea, the distinction is not whether the device was constructed for the purpose of transport rather than a receptacle. There is no reason why devices falling within the classification of Heading 8716 could not be designed for both purposes. Food carts and buffet trolleys present a good example. In light of the above analysis, I find that the evidence supports Mr Gross' contention that Sulo's wheelie bins are a vehicle, not mechanically propelled. They are properly classified under Heading 8716. … 30 I note that, although the Tribunal stated (at [45]) that Sulo's wheelie bins are a moulded plastic bin, it seems that the wheels can also be attached to wheelie bins made of metal. The Tribunal made reference to metal bins at [16] of the Reasons. The Comptroller submitted on the appeal that material before the Tribunal indicated that the wheels the subject of the Tribunal decision are suitable for use on mobile garbage bins made from either plastic or steel. In oral submissions on the appeal, the solicitor for Sulo accepted that the same wheels can be used for metal wheelie bins. He said that in the overwhelming majority of cases the wheels are attached to plastic wheelie bins. 31 The Tribunal then considered whether the wheels were to be classified as "parts", given the terms of note 3 in the Notes to Section XVII. The question asked by the Tribunal was whether the wheels were suitable solely or principally for use with mobile garbage bins. The Tribunal concluded (at [50]) that the wheels were parts which were suitable solely or principally for use with Sulo's mobile garbage bins. The exclusion in note 3 of the Section XVII Notes therefore did not apply. 32 The Tribunal, at [51] of the Reasons, referred to heading 4012 for the sake of completeness. Given the Tribunal's conclusion that the essential character of the wheels was plastic wheels, rule 3(b) of the Interpretation Rules was to be applied. It was therefore unnecessary to consider rule 3(c). 33 Accordingly, the Tribunal concluded that the wheels were to be classified to subheading 8716.90.00. It followed that the wheels were eligible for concessional entry under the TCO.

The amended notice of appeal 34 The Comptroller's amended notice of appeal raises two questions of law as follows: 1. In finding that the wheels the subject of the application for review were classifiable to heading 8716 as "parts" to mobile garbage bins, which bins were properly classified under heading 8716 of Schedule 3 of the Customs Tariff Act 1995, did the Tribunal err by failing to consider whether the mobile garbage bins were prima facie classifiable to a heading or headings other than heading 8716, and if so, to determine the correct classification of the mobile garbage bins by application of the interpretative rules set out in cl 3 of Schedule 2 of the Customs Tariff Act 1995. 2. Whether the Tribunal misconstrued the phrase "OTHER VEHICLES, NOT MECHANICALLY PROPELLED" in heading 8716 of Schedule 3 of the Customs Tariff Act 1995 by: 2.1. interpreting the word "vehicles" as meaning devices which have significant load-bearing capacity by virtue of having a chassis; and 2.2. failing to interpret the phrase "OTHER VEHICLES, NOT MECHANICALLY PROPELLED" to mean non-mechanically propelled vehicles, other than "TRAILERS AND SEMI-TRAILERS" and those vehicles falling within the description of an earlier heading of Chapter 87, the primary purpose of which is the transportation of goods or people. 35 The amended notice of appeal also sets out two grounds of appeal, each referable to one of the questions of law.

Applicable principles 36 I will refer to the provisions of the Tariff Act as they stood at the time of the Tribunal decision (but, for ease of expression, will refer to the provisions in the present tense). Sch 3 to the Tariff Act sets out the tariff classifications, arranged in Sections, Chapters, headings and subheadings. Section 7 of the Tariff Act, which sets out rules for classifying goods in Sch 3, relevantly provides as follows: 7 Rules for classifying goods in Schedule 3 (1) The Interpretation Rules must be used for working out the tariff classification under which goods are classified. (2) … (3) A reference in the Interpretation Rules to Notes includes a reference to Additional Notes. Note 1: The text in Schedule 3 is based on the wording in the Harmonized Commodity Description and Coding System that is referred to in the International Convention on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983. Note 2: The text of the Convention is set out in Australian Treaty Series 1988 No. 30. In 2006, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). 37 Section 3(1) of the Tariff Act contains a definition of the "Interpretation Rules". This expression is defined as meaning "the General Rules for the Interpretation of the Harmonized System provided for by the Convention, as set out in Schedule 2". The "Convention" is defined in s 3(1) as meaning the International Convention on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983. 38 Schedule 2 to the Tariff Act is headed "General rules for the interpretation of Schedule 3". Schedule 2 relevantly provides: Classification of goods in Schedule 3 shall be governed by the following principles: 1. The titles of Sections, Chapters and sub Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions: 2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this Rule), presented unassembled or disassembled. (b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3. 3. When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. … 6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative Section and Chapter Notes also apply, unless the context otherwise requires. 39 In Primaplas Pty Ltd v Chief Executive Officer of Customs (2016) 242 FCR 268, Siopis, Davies and Wigney JJ, having referred to the particular issue of tariff classification that arose in that case, stated at [3]: The simplicity with which the issue can be defined tends to belie the complexity of the task of construing the relevant provisions of the Tariff Act. The structure and scheme of the Tariff Act in relation to the working out of tariff classifications is complex, involving as it does the application of general interpretive rules, chapter and subchapter notes and language that, in some instances at least, is opaque if not intractable. The task is particularly difficult where, as in this case, the relevant tariff classification headings and subheadings refer to materials or substances and the goods to be classified consist of more than one material or component. 40 A number of cases have considered the circumstances in which regard may be had, for the purposes of tariff classification, to the Harmonised System Notes. In Primaplas, the Full Court held that the primary judge had not erred in having regard to the Harmonised System Notes (referred to in the judgment as the Explanatory Notes). Siopis, Davies and Wigney JJ stated (at [72]): Nevertheless, his Honour did not err in having regard to the Explanatory Notes. The primary judge noted … that Primaplas did not oppose or object to the Explanatory Notes being used as an aid to interpretation. The language of the relevant subheadings and Subheading Notes was somewhat ambiguous or susceptible to different interpretations. In those circumstances, the Explanatory Notes were an appropriate extrinsic aid to interpretation: Chief Executive Officer of Customs v Biocontrol Ltd (2006) 150 FCR 64 at [39]; see also Gardner Smith Pty Ltd v Collector of Customs (Vic) (1986) 66 ALR 377 at 383-384; Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 at 118-120; and Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282 at [22]-[30]. … 41 As explained in Chief Executive Officer of Customs v Biocontrol Ltd (2006) 150 FCR 64 at [20] per Young J, the Harmonised System Notes were developed by the committee established by the Convention on Nomenclature for the Classification of Goods in Customs Tariffs 1950, done in Brussels on 15 December 1950, as an aid to the interpretation of the international harmonised commodity description and coding system.

Tariff classifications 42 Sch 3 to the Tariff Act includes the following Sections and Chapters: (a) Section VII - Plastics and articles thereof; rubber and articles thereof. This section comprises: (i) Chapter 39 - Plastics and articles thereof; and (ii) Chapter 40 - Rubber and articles thereof. (b) Section XVII - Vehicles, aircraft, vessels and associated transport equipment. This Section comprises: (i) Chapter 86 - Railway or tramway locomotives, rolling-stock and parts thereof; railway or tramway track fixtures and fittings and parts thereof; mechanical (including electro-mechanical) traffic signalling equipment of all kinds; (ii) Chapter 87 - Vehicles other than railway or tramway rolling-stock, and parts and accessories thereof; (iii) Chapter 88 - Aircraft, spacecraft and parts thereof; (iv) Chapter 89 - Ships, boats and floating structures. 43 The Notes to Chapter 39 include: 2. This Chapter does not cover: … (t) Parts of aircraft or vehicles of Section XVII; 44 The headings and subheadings in Chapter 39 include: 3923 ARTICLES FOR THE CONVEYANCE OR PACKING OF GOODS, OF PLASTICS; STOPPERS, LIDS, CAPS AND OTHER CLOSURES, OF PLASTICS: 3923.10.00 -Boxes, cases, crates and similar articles 3923.2 -Sacks and bags (including cones): 3923.21.00 --Of polymers of ethylene 3923.29.00 --Of other plastics 3923.30.00 -Carboys, bottles, flasks and similar articles 3923.40.00 -Spools, cops, bobbins and similar supports 3923.50.00 -Stoppers, lids, caps and other closures 3923.90.00 -Other 3924 TABLEWARE, KITCHENWARE, OTHER HOUSEHOLD ARTICLES AND HYGIENIC OR TOILET ARTICLES, OF PLASTICS: 3924.10.00 -Tableware and kitchenware 3924.90.00 -Other … 3926 OTHER ARTICLES OF PLASTICS AND ARTICLES OF OTHER MATERIALS OF 3901 TO 3914.00.00: 3926.10.00 -Office or school supplies 3926.20 -Articles of apparel and clothing accessories (including gloves, mittens and mitts): 3926.20.10 ---Corset busks 3926.20.2 ---Garments: 3926.20.21 ----Anti-radiation suits, anti-contamination suits, and similar protective garments 3926.20.29 ----Other 3926.20.90 ---Other 3926.30 -Fittings for furniture, coachwork or the like: 3926.30.10 ---Of a kind used as components in passenger motor vehicles 3926.30.90 ---Other 3926.40.00 -Statuettes and other ornamental articles 3926.90 -Other: 3926.90.10 ---Of a kind used as components in passenger motor vehicles 3926.90.90 ---Other

45 The Notes to Section XVII include: 3. References in Chapters 86 to 88 to "parts" or "accessories" do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those Chapters. A part or accessory which answers to a description in two or more of the headings of those Chapters is to be classified under that heading which corresponds to the principal use of that part or accessory. 46 The Notes to Chapter 87 include: 2. For the purposes of this Chapter, "tractors" means vehicles constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not they contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilisers or other goods. … 47 The headings in Chapter 87 include: 8702 MOTOR VEHICLES FOR THE TRANSPORT OF TEN OR MORE PERSONS, INCLUDING THE DRIVER 8703 MOTOR CARS AND OTHER MOTOR VEHICLES PRINCIPALLY DESIGNED FOR THE TRANSPORT OF PERSONS (OTHER THAN THOSE OF 8702), INCLUDING STATION WAGONS AND RACING CARS 8704 MOTOR VEHICLES FOR THE TRANSPORT OF GOODS 8705 SPECIAL PURPOSE MOTOR VEHICLES, OTHER THAN THOSE PRINCIPALLY DESIGNED FOR THE TRANSPORT OF PERSONS OR GOODS (FOR EXAMPLE, BREAKDOWN LORRIES, CRANE LORRIES, FIRE FIGHTING VEHICLES, CONCRETE-MIXER LORRIES, ROAD SWEEPER LORRIES, SPRAYING LORRIES, MOBILE WORKSHOPS, MOBILE RADIOLOGICAL UNITS) 48 Heading 8716 and the associated subheadings are as follows: 8716 TRAILERS AND SEMI-TRAILERS; OTHER VEHICLES, NOT MECHANICALLY PROPELLED; PARTS THEREOF: 8716.10.00 -Trailers and semi-trailers of the caravan type, for housing or camping 8716.20.00 -Self-loading or self-unloading trailers and semi-trailers for agricultural purposes 8716.3 -Other trailers and semi-trailers for the transport of goods 8716.31.00 --Tanker trailers and tanker semi-trailers 8716.39.00 --Other 8716.40.00 -Other trailers and semi-trailers 8716.80.00 -Other vehicles 8716.90.00 -Parts

Harmonised System Notes 49 The following extracts from the Harmonised System Notes are taken from the version provided by the parties to the Court on the appeal hearing. 50 The Harmonised System Notes relating to heading 3924 (which covers "tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics") state: This heading covers the following articles of plastics: … (C) Other household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, foot storage containers, curtains, drapes, table covers and fitted furniture dust-covers (slipovers). (Emphasis added.) I note that the word "dustbin" is a chiefly British word, meaning a rubbish bin (see the Macquarie Dictionary (6th ed, 2013)). 51 Although not centrally relevant to the issues on appeal, it is convenient to refer at this point to heading 7323 which covers "table, kitchen or other household articles and parts thereof, of iron or steel …". The Harmonised System Notes for this heading state: The group includes: … (3) Other household articles such as wash coppers and boilers; dustbins, buckets, coal scuttles and hods; watering-cans; ash-trays; hot water bottles; bottle baskets; moveable boot-scrapers; stands for flat irons; baskets for laundry, fruit, vegetables, etc.; letter-boxes; clothes-hangers, shoe trees; luncheon boxes. (Second emphasis added.) 52 Extracts from the Harmonised System Notes relating to heading 8716 have been set out in [25] and [27] above.

Failure to consider other available headings (question of law 1) 53 The first question of law raises the issue of whether the Tribunal erred by failing to consider whether the mobile garbage bins were prima facie classifiable to headings other than heading 8716 and, if so, determining the correct classification of the mobile garbage bins in accordance with the Interpretation Rules. 54 The steps in the reasoning of the Tribunal were relevantly as follows. First, the Tribunal set out, at [17] of the Reasons, the headings and subheading which the Comptroller said were the only likely possibilities for classification of the wheels. Secondly, the Tribunal referred, at [18]-[19], to the Interpretation Rules, including rule 3. Thirdly, the Tribunal found, at [21], that the essential character of the wheels was that of a plastic wheel (see rule 3(b)). Fourthly, the Tribunal referred to headings 3924 and 3926, being the two headings put forward by the Comptroller which dealt with plastics. The Tribunal noted (at [22]) that both of these headings fell within Chapter 39 and that note 2 of the Chapter 39 Notes stated that the Chapter does not cover "[p]arts of aircraft or vehicles of Section XVII". Fifthly, the Tribunal considered (at [28]-[46]) whether Sulo's mobile garbage bins were properly classified as non-mechanically propelled vehicles. Sixthly, in finding that the garbage bins were properly classified as non-mechanically propelled vehicles, the Tribunal determined that the wheels, as a "part thereof", should be classified to subheading 8716.90.00. 55 The Comptroller's submissions in relation to the first question of law can be summarised as follows: (a) The Tribunal erred in failing to consider whether there were other headings prima facie available for the classification of the wheelie bins, and to determine the correct classification by application of the Interpretation Rules. (b) The Tribunal correctly identified (at [28] of the Reasons) the first question for its consideration as "whether Sulo's mobile garbage bins are properly classified as non-mechanically propelled vehicles". Notwithstanding that the Tribunal correctly identified the first question, it failed to address that question and instead addressed the narrower question of whether it was open to classify the mobile garbage bins to heading 8716. In doing so, the Tribunal failed to consider whether the mobile garbage bins were prima facie classifiable to other headings, and if so to apply the Interpretation Rules to classify the bins to the correct heading. (c) The wheels, the subject of this case, are only classifiable to heading 8716 as "parts" of "other vehicles" if the mobile garbage bins themselves are properly classified to heading 8716 as "other vehicles, not mechanically propelled". Thus, although the Tribunal's ultimate task was to classify the wheels, as one of the possible headings described goods as parts of a primary good (here, the mobile garbage bins), the determination of the correct classification of the bins was a necessary step in identifying the available headings for classification of the wheels. (d) On the material before the Tribunal, it was open to classify the plastic wheelie bins as follows: 3923 ARTICLES FOR THE CONVEYANCE OR PACKING OF GOODS, OF PLASTICS 3924 TABLEWARE, KITCHENWARE, OTHER HOUSEHOLD ARTICLES AND HYGIENIC OR TOILET ARTICLES, OF PLASTICS 3926 OTHER ARTICLES OF PLASTICS AND ARTICLES OF OTHER MATERIALS OF 3901 TO 3914.00.00

(e) Further, on the material before the Tribunal, it was open to classify wheelie bins made of steel to the following headings: 7310 TANKS, CASKS, DRUMS, CANS, BOXES AND SIMILAR CONTAINERS, FOR ANY MATERIAL (OTHER THAN COMPRESSED OR LIQUEFIED GAS), OF IRON OR STEEL, OF A CAPACITY NOT EXCEEDING 300 L, WHETHER OR NOT LINED OR HEAT-INSULATED, BUT NOT FITTED WITH MECHANICAL OR THERMAL EQUIPMENT 7323 TABLE, KITCHEN OR OTHER HOUSEHOLD ARTICLES AND PARTS THEREOF, OF IRON OR STEEL …

(f) As the mobile garbage bins were prima facie classifiable to headings other than heading 8716, the Tribunal was required to apply the Interpretation Rules to determine the correct classification of the bins. Only if, following the application of those Rules, the bins were classifiable to heading 8716 would it have been open to consider classification of the wheels as "parts thereof" in heading 8716. (g) The Tribunal's failure to consider the availability of any other headings for classification of the mobile garbage bins was a material error. On the material before the Tribunal, and on the findings made by the Tribunal in relation to the identification of the mobile garbage bins, classification of the bins to headings other than 8716 was open. Accordingly, the Tribunal should have applied the Interpretation Rules, in particular rule 3(a), to determine the correct classification. (h) Determining which heading provides the "most specific description" is a difficult task. As it is not possible to say that, despite the failure to consider the availability of other headings and then apply the Interpretation Rules to determine the correct classification, the Tribunal's classification of the mobile garbage bins (and consequently the wheels) to heading 8716 was "clearly correct on the material before it" (see Hill v Repatriation Commission (2005) 218 ALR 251 at [83], citing McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 618; Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560; and Harris v Repatriation Commission (2000) 62 ALD 161 at 163), the appeal should be allowed and the Tribunal's decision set aside. 56 Sulo's submissions in relation to the first question of law can be summarised as follows: (a) The identification of the wheel as part of the wheelie bin is a process that is independent of whatever classification the wheelie bin may have. In other words, whatever classification the wheelie bin may attract, does not change the fact that the subject goods are wheels specifically designed as wheels for wheelie bins. (b) It is not necessary to classify an object before something can be identified as a part of that object. Thus, if one were to import a bicycle wheel, then clearly that object is identified as a bicycle wheel. That identification as a bicycle wheel is not affected in any way by whatever tariff classification might apply to the bicycle. (c) The consequence of note 2(t) of the Chapter 39 Notes is that the appropriate procedure for determining the proper classification of goods that might seem to fall within any of the subheadings of Chapter 39 and Section XVII is first to determine whether the goods can be appropriately classified under any of the headings in Section XVII. If they can be, they are so to be classified and it is irrelevant that the goods might also fall within Chapter 39. The goods can only be classified to Chapter 39 if none of the headings in Section XVII are applicable: see Liebert Corporation Australia Pty Ltd v Collector of Customs (1993) 23 AAR 287 at [8]. 57 In the Comptroller's written submissions in reply, it was clarified that the Comptroller did not contend that it was an error for the Tribunal to first consider whether the wheels were classifiable to heading 8716 given that, if they were, the effect of note 2(t) of the Chapter 39 Notes was that the wheels could not be classified to Chapter 39. However, it was submitted that the wheels could only be classified to heading 8716 as parts of the mobile garbage bins if the bins themselves were properly classified to that heading; and that, whether or not they were properly classified to that heading required consideration of other headings that were open for classification of the bins, and the application of the Interpretation Rules as necessary. 58 It does not appear that the Comptroller made submissions along the lines now put, at the hearing before the Tribunal. Counsel for the Comptroller accepted on the appeal that the Comptroller had not made detailed submissions, for example, as to why heading 3924 was the appropriate heading, and the more specific heading, for the wheelie bins. Nevertheless, I think it is open to the Comptroller to raise question of law 1 as it arises from material that was before the Tribunal. Sulo did not contend that it was not open to the Comptroller to raise this question of law. 59 It appears to be common ground, and I accept, that in light of note 2(t) of the Chapter 39 Notes (set out in [43] above), the Tribunal was correct to first consider whether the wheels were to be classified (as parts) to a subheading in Section XVII before considering whether the wheels were classifiable to a subheading in Chapter 39: see Liebert Corporation Australia Pty Ltd v Collector of Customs at [8] per Wilcox, O'Connor and Drummond JJ. Thus the Tribunal was correct to consider whether the wheels were to be classified to subheading 8716.90.00 (as parts of a vehicle, not mechanically propelled, as referred to in heading 8716) before considering classification of the wheels in Chapter 39. 60 As part of the process of determining whether the wheels were to be classified to subheading 8716.90.00, it was necessary for the Tribunal to determine whether the wheelie bins were "other vehicles, not mechanically propelled" within the meaning of heading 8716. If the wheelie bins were not within the meaning of "other vehicles, not mechanically propelled", then the wheels were not "parts thereof" within the meaning of subheading 8716.90.00. 61 As I apprehend it, the thrust of the Comptroller's submissions is that it was necessary, for this purpose, to determine whether the wheelie bins were properly to be classified to heading 8716, in the same way as if this question had arisen in a case relating to the wheelie bins (rather than the wheels). As a matter of principle, I accept the proposition that there can be only one proper classification of the wheelie bins, and this must be determined consistently whether the case is directly concerned with wheelie bins or is concerned with determining whether the wheels are parts of a vehicle as referred to in heading 8716. However, in light of my conclusion in relation to question of law 2, discussed below, it seems unlikely that that the wheelie bins would be considered to fall within the description "other vehicles, not mechanically propelled" in heading 8716. Assuming that the wheelie bins do not fall within that description, it would be unnecessary to weigh up whether the wheelie bins were properly classifiable to (for example) heading 3923, 3924, 3926 or 8716; one would instead direct attention to the proper classification of the wheels themselves. 62 It is convenient to note that the Comptroller's submissions in relation to question of law 1 highlight the presence of other headings in Sch 3 which are potentially relevant to the construction issue raised by the second question of law. In particular, heading 3924 covers "tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics". As set out above, the Harmonised System Notes for that heading state that it covers, among other things, "dustbins" which I take to be synonymous with rubbish bins. Although the Tribunal placed considerable reliance on the Harmonised System Notes in relation to heading 8716, the Tribunal did not refer to this part of the Harmonised System Notes. I discuss this further in connection with question of law 2. 63 In summary, assuming that the wheelie bins do not fall within heading 8716, it would be unnecessary to weigh up whether the wheelie bins were properly classifiable to (for example) heading 3923, 3924, 3926 or 8716; one would instead direct attention to the proper classification of the wheels themselves.

Proper construction of heading 8716 (question of law 2) 64 The second question set out in the amended notice of appeal concerns the proper construction of heading 8716. Although the heading may use words in their ordinary meaning, the proper construction of those words is a question of law rather than a question of fact: May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 at [183]-[193] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ. In that case, their Honours stated (at [191]) that they respectfully agreed with the following observations of Beazley ACJ in Norrie v Registrar of Births, Deaths and Marriages (NSW) (2013) 84 NSWLR 697 at [62]: The High Court's obiter remarks in Agfa-Gevaert [(1996) 186 CLR 389] and their approval in Aktiebolaget Hassle v Alphapharm [(2002) 212 CLR 411] indicate that it cannot be said that the ordinary meaning of a word or its non-technical meaning is a question of fact, at least as a stand alone proposition. Rather, when the Court is engaged in a task of statutory construction, it is required to have regard to the language used by Parliament and the context in which it is used. That task involves a question of law. 65 It follows that the second question is properly the subject of an appeal to this Court under s 44 of the AAT Act. 66 The Comptroller's submissions on the proper construction of heading 8716 can be summarised as follows: (a) In construing the word "vehicle" in heading 8716 as describing load-bearing devices which have the wheels attached to a chassis, the Tribunal: placed too much weight on one example in the Harmonised System Notes of items intended to be excluded from heading 8716; and failed to consider the context of Chapter 87 as a whole, which indicates that the word "vehicle" is intended to refer to a means of conveyance with wheels or runners constructed for the primary purpose of transporting goods or people. (b) The Tribunal drew too heavily on the exclusion regarding small, wheeled containers in the Harmonised System Notes and failed to have regard to the whole of the relevant part of the Harmonised System Notes: see Chief Executive Officer of Customs v Biocontrol Ltd (2006) 150 FCR 64 at [41]-[45]. In particular, the Tribunal failed to recognise that: the opening words of the relevant part of the Harmonised System Notes referred to "non-mechanically propelled vehicles (other than those of the preceding headings) equipped with one or more wheels and constructed for the transport of goods or persons" (emphasis added); and the unifying feature of each of the examples cited in the Harmonised System Notes is not the presence or absence of a chassis, but simply that the items are designed for the purpose of transporting goods or people. (c) The Tribunal failed to take into account the contextual indicators in Chapter 87 which support the view that the differentiating feature of a "vehicle" is whether it has the principal purpose of transporting goods or people. The headings of Chapter 87 distinguish vehicles according to whether they are for the transport of goods or people: see headings 8702, 8703 and 8704. The Tribunal also failed to refer to heading 8705 ("special purpose motor vehicles, other than those principally designed for the transport of persons or goods …"). (d) The Tribunal considered that the inclusion of tractors in Chapter 87 counted against the argument that the distinguishing feature of a vehicle is whether it is constructed for the purpose of transporting goods or people. But note 2 of the Chapter 87 Notes does not suggest that the primary purpose of tractors is not the transport of goods or people; it merely clarifies that "tractors" refers to vehicles constructed for the essential purpose of moving another vehicle, load or appliance by hauling or pushing, rather than by carrying. (e) The proper enquiry for the purpose of determining whether goods fit within heading 8716 is not whether they have the capacity to be able to transport goods or people, but whether that is their purpose. Capacity might be an aspect of the more general enquiry as to the purpose for which a good was made, but it is not the central question. If it was, goods such as hospital beds - which have wheels attached to a metal frame on which the bed and lifting apparatus are fixed - would be classifiable to heading 8716. Hospital beds may be designed to have the capacity to transport people, but that does not mean that the transportation of people is the primary purpose of a hospital bed so as to make it a "vehicle" as that word is ordinarily understood. 67 Sulo's submissions on the proper construction of heading 8716 can be summarised as follows: (a) The Tribunal proceeded through a detailed analysis of what is a vehicle. The Tribunal at [31] of the Reasons noted the various types of objects that are covered by Chapter 87 including goods such as tractors, baby carriages, trailers and semi-trailers. At [32] of the Reasons, the Tribunal referred to note 2 of the Chapter 87 Notes which had the effect that tractors were vehicles even though the transporting of goods or people was only a subsidiary or incidental function. (b) At [36] of the Reasons, the Tribunal noted that the goods in question were parts of a purpose-built rubbish bin described as a 'wheelie bin'. It is not simply a rubbish bin. Further, it is not simply a rubbish bin to which wheels have been added. Given the size of the wheelie bin and its consequent weight, especially when loaded, the wheels are an essential and principal component. The Tribunal noted that there would be no purpose in having a wheelie bin if one only wished to store rubbish and not have it removed on a regular collection basis. (c) The Tribunal referred to the Harmonised System Notes in a consistent and logical manner. The Tribunal had regard to the whole of the relevant part of the Harmonised System Notes. At [43] of the Reasons, the Tribunal observed that many of the items listed in the Harmonised System Notes would not normally be described as a vehicle. It further observed that "items such as food carts and buffet trolleys are not only used to convey goods but are also frequently used to store goods". The same can be said for ice cream vendor barrows. (d) The reference by the Tribunal to the exclusion for small, wheeled containers is first cited in response to the Comptroller's reference to luggage bags with wheels. The Tribunal's analysis at [43] of the Reasons is a proper consideration of what is a "vehicle" in the context of heading 8716. (e) The reference thereafter to the presence of a "chassis" demonstrates that the Tribunal carefully considered the basis of establishing that the vehicle in question had the capacity to be able to transport goods or people. Thus, the example is given of how a wheel barrow has a chassis. At [45] of the Reasons, the Tribunal noted that it is the chassis that makes the wheelie bin a load-bearing vehicle. The Tribunal noted the maximum size of the load for the wheelie bin varied between 48 and 96 kg. Such a weight means that without the wheels the wheelie bin has no practical function. (f) The Tribunal at [46] of the Reasons noted that goods falling in heading 8716 can be designed for the purposes of both transport and storage and referred to food carts and buffet trolleys as examples. (g) The Tribunal did not distinguish goods under heading 8716 by their method of construction but simply made reference to the existence of a chassis in the examples in the Harmonised System Notes to show that the goods in question were capable of bearing a load. Even if the Tribunal did note the existence of a chassis as a point of distinction in defining a vehicle, this was open to the Tribunal given all of the examples in the Harmonised System Notes had a chassis. (h) The Tribunal carefully considered the issues and provided reasons in accordance with the relevant legal principles. The Comptroller's submissions seek to minutely analyse certain aspects of the Reasons and do not take the Tribunal's reasoning in its proper context. The correct approach is as set out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. 68 In my view, the Tribunal erred in its construction of the words "other vehicles, not mechanically propelled" in heading 8716. 69 First, while the Tribunal was correct to have reference to the Harmonised System Notes (as the words "other vehicles, not mechanically propelled" are ambiguous), I consider that the Tribunal erred in drawing from the Harmonised System Notes that heading 8716 was "intended to apply to vehicles which have significant load-bearing capacity" (Reasons, [43]) and that the presence or absence of a chassis was useful in determining whether something was a vehicle (Reasons, [43]-[46]). When the Harmonised System Notes for heading 8716 are considered as a whole, they do not indicate that load-bearing capacity is determinative of whether or not something is a vehicle. Load-bearing capacity is not referred to expressly in the Harmonised System Notes. While it may be the case that many of the examples do have a significant load-bearing capacity, there is no indication that this is a relevant point of distinction for present purposes. Further, apart from the reference to "not incorporating a chassis" in the exclusion relating to small, wheeled containers and a reference to "chassis" in the later section dealing with parts, there is no indication that the presence or absence of a chassis is useful in determining whether something is a vehicle for the purposes of the heading. It seems to be reading too much into the reference to "not incorporating a chassis" in the exclusion to suggest that the presence of a chassis is useful for the purposes of determining if something is a vehicle. (I note in passing that it would seem to involve a strained usage of the word "chassis" to describe the plastic extrusions at the base of the wheelie bin as a chassis.) 70 Secondly, the Harmonised System Notes indicate, in the first paragraph of the section dealing with heading 8716, that the heading covers a group of non-mechanically propelled vehicles "constructed for the transport of goods or persons". These words were not given much weight by the Tribunal. But they provide a clear indication of the intended scope of the heading. These words, together with the other matters referred to below, indicate that for something to constitute a "vehicle" for the purposes of heading 8716, it needs to be constructed for the primary purpose of transporting goods or people. 71 It may be accepted that, as the Tribunal observed at [43] of the Reasons, many of the items referred to in the Harmonised System Notes relating to heading 8716 would not normally be described as a "vehicle". Nevertheless, it may be said of each of these items that they were constructed for the primary purpose of transporting goods or people. There is, therefore, an internal consistency in the Harmonised System Notes for this heading; and the list of items does not detract from the proposition, expressed in the first paragraph of the Harmonised System Notes for heading 8716, that the heading covers a group of non-mechanically propelled vehicles "constructed for the transport of goods or persons". 72 Thirdly, in construing the words "other vehicles, not mechanically propelled" in heading 8716, the Tribunal did not consider these words in the context of Sch 3 as a whole, including the other headings which were potentially applicable to wheelie bins. In particular, as discussed in [62] above, heading 3924 covers "tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics" and the Harmonised System Notes for that heading state that it covers, among other things, "dustbins". Although the Tribunal placed considerable reliance on the Harmonised System Notes in relation to heading 8716, the Tribunal did not refer to this part of the Harmonised System Notes. Both the other potentially applicable headings and the Harmonised System Notes for those headings were potentially useful contextual materials to assist with the process of construction of heading 8716. Putting the matter simply, in determining whether Sulo's mobile garbage bins were vehicles within the meaning of heading 8716, it was relevant to have regard to the fact that the Harmonised System Notes state that dustbins (synonymous with rubbish bins) are covered by heading 3924. 73 I note that in [36] of the Reasons the Tribunal observed that the wheels were parts of "a purpose-built rubbish bin, described as a wheelie bin. It is not simply a rubbish bin". However, even if it is accepted that the wheelie bin is not simply a rubbish bin, the fact that the Harmonised System Notes state that dustbins (or rubbish bins) are covered by heading 3924 is still a relevant contextual matter. 74 Fourthly, although I do not think too much weight can be placed on this, the scheme of the headings in Chapter 87 supports the proposition that "vehicle" in heading 8716 refers to items constructed for the primary purpose of transporting goods or people. As submitted by the Comptroller, some of the headings in Chapter 87 distinguish vehicles according to whether they are for the transport of goods or people: see headings 8702, 8703 and 8704, set out in [47] above. Further, heading 8705 (set out in [47] above) provides inferential support for the above proposition. By identifying vehicles of heading 8705 as "special purpose motor vehicles, other than those principally designed for the transport of persons or goods …" (emphasis added), this heading supports the proposition that the distinguishing feature of "vehicles", for the purpose of Chapter 87 generally, is that they are constructed for the primary (or principal) purpose of transporting goods or people. 75 For completeness, I note that the Tribunal stated, at [36] of the Reasons, that "it is difficult not to conclude that the purpose of a wheelie bin is to convey rubbish to the curb-side so that it can be collected". However, the Tribunal was not here addressing whether the wheelie bins were constructed for the primary purpose of transporting goods. Reading the Reasons as a whole, the substance of the Tribunal's reasoning was that a purpose of the wheelie bins was to transport rubbish to the curb-side. I do not take the Tribunal to have found that the wheelie bins were constructed for the primary purpose of transporting goods or people. 76 In summary, the Tribunal erred in its construction of the words "other vehicles, not mechanically propelled" in heading 8716. In considering the meaning of this expression, the Tribunal was required to consider, not just the text and explanatory materials for Chapter 87, but other headings and subheadings in Sch 3 likely to apply to wheelie bins. The ambit of these headings and sub-headings, on their proper construction, is a relevant and necessary consideration in determining the meaning of heading 8716. On its true construction, the word "vehicles" refers to something constructed for the primary purpose of transporting goods or people.

Conclusion 77 It follows from the above that the appeal should be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal for redetermination according to law. On the assumption that the wheelie bins were not vehicles as described in heading 8716, the wheels would not be classified to subheading 8716.90.00. The Tribunal would then need to consider other possible classifications for the wheels. In relation to costs, I will provide the parties with the opportunity to file a short written submission. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.

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