H J Heinz Company Limited v Chief Executive Officer of Customs

6 The following observations may be made concerning the wording of this Item: · The Item addresses fish which is 'prepared or preserved; · Although it also addresses caviar, that is specifically provided for in subitem 1604.30.00; · All of the species of fish described in the sub-items, save that relating to tuna, skipjack and bonito, are free of duty; · In the case of tuna, if it is 'minced' it will not be liable for duty; nor will it be so liable if it is neither whole or 'in pieces', in which case it would appear to fall under the heading 'other prepared or preserved fish' and be free of duty. 7 As the User's Guide to the Act explains, the tariff classifies goods in accordance with Australia's international obligations as a party to the World Trade Organization Agreement.

tribunal's reasons 8 As his Honour said (at [5]) in his reasons, the following steps are apparent from the reasons of the Tribunal in reaching its conclusions: '(a) The phrase 'fish in pieces' bears its ordinary meaning. It is not limited to 'large pieces'; (b) Tuna can be distinguished from other fish products, such as hake, cod or mackerel which were commonly 'minced' e.g. for further processing into fish fingers or fish patties or related products. Tuna is not commonly minced because any attempt to mince it prior to cooking (as occurred in respect of other fish) would not enable the inedible red meat to be separated. If it was 'minced' after cooking it is likely that the result would be a paste. (c) The tuna in the imported items had retained its 'structural integrity'. Although the size of the tuna flesh contained in the cans had been reduced by various means, it 'had an identifiable structure ... which minced tuna would not have'. (d) In accordance with the ordinary and usual meaning of the words, the tuna in the imported items was 'fish in pieces', but was not 'minced'.' 9 It was not disputed before the Tribunal that the tuna, being cooked, was 'prepared … fish' within the classification of 1604. 10 It is helpful to set out the course of the Tribunal's reasoning in a little more detail. Those reasons commenced by referring to the legislative context. The witnesses were then identified as being Mr S Soroka, Mr M Moffat and Mr T Real, persons experienced in the fish processing industry, for the appellant, supplemented by Adjunct Associate Professor M Wootton from the University of New South Wales and Mr H Peters of a marine product marketing company. The respondent's witnesses were Mr B Wailes, a consultant in the food industry, and Mr B Jeffriess, President and Chief Executive Officer of the Tuna Boat Owners Association of Australia. The reasons identified the principal submissions of the applicant (the present appellant) being that none of the imported goods and particularly the 'shredded' tuna could be categorised as 'whole or in pieces'. Alternatively, all of the imported fish was properly to be categorised as 'minced' so that it fell for entry within subitem 1604.20.00. The appellant contended that 'fish…in pieces' referred to that fish which has been filleted, or from which loins or cutlets or medallions have been removed. Additionally the appellant contended that 'minced' fish refers to fish which has undergone a process of separation of the fish meat from the skin and bone. The respondent submitted that some cans and pouches were filled with a number of different sized pieces of tuna ranging from chunks to shreds (relying on the evidence of Mr Wailes). He contended no evidence had been brought that the relevant goods had been identified by anyone as minced. He also urged the Tribunal to find that there was no uniform trade meaning for the word 'pieces' or 'minced'. He contended that the goods were correctly classified under subitem 1604.14.00. 11 As a result of its consideration of the identification of the goods in accordance with Re Tridon Pty Ltd v Collector of Customs (1982) 4 ALD 615, the Tribunal found the goods could be identified as cooked tuna, labelled as chunk, sandwich or shredded. It found that there is no uniform trade term for 'fish in pieces' or 'minced tuna'. Turning to the classification of the tuna, the Tribunal had regard to dictionary meanings of the words in issue, including 'mince' and 'pieces'. Relying also on an inspection, the Tribunal found that the samples were not minced tuna but were 'fish in pieces' with the meaning of Item 1604.1. It further found that the ordinary meaning of 'fish in pieces' is recognisable or identifiable pieces, chunks, flakes or shreds, which have not lost their integral structure, and so are not minced. In reaching this view the Tribunal also had regard to the evidence of industry and trade views. It found that minced tuna was not a concept in the industry. It stated that the evidence established that minced (cooked) tuna would be paste-like and will have lost its structural integrity. The Tribunal also made reference to the decision of the Full Court in Grocery Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCAFC 85 which it regarded as upholding the Tribunal's adoption of the ordinary meaning of the terms of Item 1604.1 in Grocery Holdings Pty Ltd v Chief Executive Officer of Customs (2003) 74 ALD 212. The Tribunal stated it regarded itself bound by the decision of the Full Court.

reasoning of primary judge 12 The primary judge dealt with the alleged errors in the reasoning of the Tribunal in four groupings. 13 The first group advanced the contention that the Tribunal did not properly consider whether the word 'minced' bore a specialised meaning in the relevant trade. His Honour accepted that the Tribunal had not given any express reasons for rejecting the argument that 'minced' bore the special trade meaning of 'particles of skeletal muscle which have been separated from and are essentially free from bones, viscera and skin'. After examining the elements of the reasoning of the Tribunal in this respect, the primary judge concluded at [8] that the inference was clear that the Tribunal had concluded either that there was no special trade meaning of the word 'minced' or, if there was, that it did not have application to tuna or (perhaps) to cooked fish. 14 The second group contended that the Tribunal was in error on the facts of the case in holding that the goods were not 'minced'. Two subsidiary errors were pointed to. The first was that the Tribunal had confused the question of whether there was a special trade meaning of the word 'minced' with the question whether there was a special trade meaning for the words 'tuna mince'. The second was that the Tribunal had mistakenly understood that it was bound by the decision of the Full Court in Grocery Holdings. 15 The primary judge considered the critical question was whether the Tribunal had made a legal error when it concluded that the word 'minced' bore its usual and ordinary meaning rather than some specialised trade meaning. He said that was a question of law involving the identification of Parliament's intent. Of this he said, firstly, the inquiry could not be reduced to fixed and immutable rules, no matter how useful they may be as guides: cf Re Pacific Films Laboratories Pty Ltd v Collector of Customs (1979) 2 ALD 144 at 155-156. Secondly, the only relevance of a trade meaning is that Parliament intended to adopt that meaning. Thirdly, it is also necessary to determine that Parliament intended that the word should be understood in that sense: see Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398-399 and 401. Finally, the identification of a specialised trade meaning is also a question of law: see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287-288. 16 Although the primary judge accepted that the Tribunal may have wrongly considered itself bound by the decision of the Full Court in Grocery Holdings, his Honour did not consider anything turned on that because the Tribunal had considered the issue on first principles. Therefore it was necessary for the appellant as applicant to show that the conclusion reached by the Tribunal on the meaning of the word 'minced' was in error. 17 Of the references by the Tribunal to 'minced tuna' his Honour said that to a certain extent this reflected the evidence given by the appellant as applicant's witnesses. The effect of their evidence had been that the word 'minced' did not have a specialised meaning in the industry. The term was not used in relation to tuna. His Honour said that although the relevant word requiring interpretation was 'minced' rather than 'minced tuna', that did not make the Tribunal's analysis irrelevant. This was because evidence that the word 'minced' is not used in relation to tuna goes a considerable way to suggest that there is no relevant trade meaning of the word which Parliament can be presumed to have adopted. Additionally even if the word 'minced' did have some specialised meaning, it may have been only in relation to certain fish or fish in certain conditions. Mr Wailes' evidence suggested that 'minced fish' had a particular and specialised meaning in relation to fresh fish, as distinct from cooked fish. While the Tribunal had not explained whether the word 'minced' had no specialised meaning or did not apply to fish in certain conditions, it did explain why cooked tuna was not described as 'minced'. In his opinion the analysis by the Tribunal of the use of the term 'minced tuna' within the industry was relevant. 18 His Honour said the fundamental issue in relation to this group was whether the evidence that was before the Tribunal identified a 'special meaning' of 'minced' in the relevant industry that was both adopted by the Parliament and applicable in this case. In his opinion, it did not. Nevertheless his Honour stated at [19]: 'True it was that there was some evidence particularly by the witnesses Soroka (called by the applicant) and Wailes (called by the respondent), that the word 'minced' was used in a broader sense within the fish processing industry (even if there was a lack of clarity about what that industry was) so as to have the meaning in the 'Codex Standard' published by the United Nations Food and Agricultural Organisation. That specialised meaning was 'particles of skeletal muscle which have been separated from and are essentially free from bones'. Plainly the definition in the Codex Standard is a broader definition than the usual and ordinary meaning of the word 'minced' as applied by the [Tribunal]. It would include reasonably large pieces of fish that were still easily identifiable as 'chunks' of fish.' He continued by saying that however, it could hardly be said that such meaning had general support from the witnesses. His Honour therefore concluded on this issue at [21]: 'In my view it was plainly open to the [Tribunal], on the evidence presented, to be satisfied that the word 'minced' in its application to tuna bore its usual and normal meaning and that it did not bear a special trade meaning. To the extent that the issue is one of law for me to determine, I am of the view that the evidence given in this case was not sufficient to show that there is a special industry meaning of the word 'minced' such that the word should be understood in that sense. Consequently in my view the word 'minced' should be understood in its usual and ordinary meaning.' 19 The third group of alleged errors related to the application of the usual and ordinary meaning of the word 'minced'. The contention of the appellant as applicant was that the Tribunal did not correctly identify what was the usual and ordinary meaning. This was said to be because it held that 'minced' meant that the fish had to be a paste. At [24] his Honour rejected this contention, saying there had not been any such confusion. The Tribunal had held that 'minced' had the usual and normal meaning ascribed to it by dictionaries, namely cut up or chopped into very small pieces. 20 The fourth group of alleged errors related to the meaning of the phrase 'fish in pieces'. It was contended by the appellant as applicant that the Tribunal should have found as a matter of law that 'fish in pieces' meant large pieces of fish described as fillets or loins in contradistinction to the word 'minced' which referred to 'very small pieces' and other words (such as 'chunk'). This was supported by the argument that such an interpretation would have the important practical benefit of reducing the extent to which it was necessary to make 'subjective judgments' in applying the relevant definitions, presumably because the amount of 'prepared fish' to which duty might be applicable would be considerably reduced. The appellant as applicant had also argued that such an interpretation would give some work for the word 'other' in subitem 1604.20.00 to do. 21 His Honour saw at least two problems with this argument. There is no obvious reason why Parliament would expressly deal only with large pieces and very small ('minced') pieces and say nothing about everything falling in between. More fundamentally, his Honour considered it clear that the terms are not mutually exclusive. The legislated exclusion of 'minced' from 'fish in pieces' showed that Parliament considered the former could be included in the latter. The word 'other' would have work to do, for instance in relation to 'minced fish' and fish paste. 22 His Honour then said at [29]: 'The [Tribunal] concluded that 'fish in pieces' did not have any particular trade or industry meaning. It concluded that the meaning of that phrase in clause 1604.1 was its usual and ordinary meaning. It referred to relevant dictionary meanings and concluded that the usual and normal meaning did not require that the piece be a large piece, providing that it retained its structural integrity sufficient to be described as 'a piece'. The [Tribunal] concluded that the fish products the subject of the duty were properly described as 'fish in pieces'. In my view there was no error in this analysis by the [Tribunal].'

GROUNDS OF APPEAL 23 In summary form, the issues raised by the appellant on this appeal are: '(i) whether the trial judge erred in inferring at [8] that the Tribunal had determined for itself that there was no special trade meaning for the word "minced"; (ii) whether the trial judge erred in holding at [21] that the Tribunal had not erred in concluding that "minced" bore its ordinary meaning; (iii) whether the trial judge erred in holding at [24]-[25] that the Tribunal had correctly applied the ordinary meaning of the word "minced"; (iv) whether the trial judge erred in upholding at [29] the correctness of the Tribunal's construction of the words "fish … in pieces".'

'minced' as an expression of trade 24 On the hearing of the appeal the respondent disputed that the appellant had put as a central part of its case or at all the proposition that there was a specialised trade meaning for the term 'minced' in relation to the fish industry and that its oral and written submissions should be read in the light of that contention. Following the hearing of the appeal, supplementary submissions were received from each of the parties. It is common ground that the appellant's statement of facts and contentions before the Tribunal stated that 'the term 'minced' has an accepted meaning in the fish processing industry'. It further stated that the terms 'piece of fish' and 'fish…in pieces' have an accepted meaning in the fish processing industry. We accept that, as the respondent submits, the appellant has not identified any oral submission to the Tribunal on the point in issue. Nor did the appellant's written submissions before the Tribunal raise the point as a central part of is case. In our view, it is apparent from the way the appellant's case was conducted, however, that evidence was led raising the issue for the consideration of the Tribunal and it is sufficient to address the issue on that basis. 25 The Tribunal's reasons did not expressly reject, as his Honour noted in his reasons, any submission that the word 'minced' had a specialised trade meaning or any like submission. However, as he also noted, the Tribunal set out in some detail the relevant principles on whether words in legislation should be interpreted in a specialised trade meaning, discussed the evidence relating to the question and referred to the decision of the Tribunal in Grocery Holdings Pty Ltd v Chief Executive Officer of Customs (2003) 74 ALD 212 at 223-224 where the Tribunal there expressly found there was no accepted trade meaning and that the ordinary meaning applied. This could only have been in response to the way the case was run and in response to the issues raised by the evidence. 26 It is contended by the appellant that his Honour was in error in finding that, because the Tribunal did not expressly deal with the contention, it had failed to consider the evidence and provide reasons for its decision: Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J; s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). It is submitted that his Honour's approach enabling the Tribunal to provide reasons by a process of inference is an imperfect fulfilment of the Tribunal's obligation. We reject this submission. The Tribunal clearly considered the evidence. It delivered reasons. The question before the primary judge on review was what was the effect of those reasons. His Honour found the Tribunal had not expressly dealt with the contention. It was then necessary for him to examine the reasons further to see whether the Tribunal had addressed the contention in any other way. His Honour concluded that the reasons led to the inference which he drew. The approach of the Tribunal was not an error of law for the purposes of s 44 of the Administrative Appeals Tribunal Act. Nor was there anything impermissible in his Honour drawing the inference. This was not a case where there was a failure to deal with the issue by the Tribunal, because a careful reading of the reasons gave rise to the inference which his Honour drew. This was therefore not an instance where a strong inference could arise that the issue had been overlooked - Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641, at [47] - or that a relevant consideration had not been taken into account: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346, at [69]. 27 It is further argued that his Honour was in error in making the inference. This is said to be because the Tribunal's repeated references to 'minced tuna', as opposed to 'minced', exposes a Tribunal pursuing a task of resolving the meaning of a phrase not in issue. Therefore, it is submitted, the Tribunal should have been seen by his Honour as simply pursing the wrong task and asking itself the wrong question. Further, it is contended that the relevance of Grocery Holdings was to be discerned by his Honour from the reasons of the Tribunal and not ascribed by way of inference by his Honour. 28 Both the Tribunal's reasoning process and the evidence it addressed support the conclusion which it reached on this issue. We agree with the primary judge's conclusion that the inquiry by the Tribunal into the effect of the evidence in relation to 'minced tuna' was relevant precisely because it arose from the evidence. As his Honour said, the fact that the word 'minced' is not used in relation to tuna goes a considerable way to suggest that there is no relevant trade meaning of the word which Parliament could be presumed to have adopted. This is not a case of the Tribunal asking itself the wrong question. The question arose from the content of the evidence and was a relevant consideration. 29 Furthermore, the Tribunal went on to consider the evidence given by the witnesses. That evidence supported the conclusions of the Tribunal. The appellant as applicant's witness Mr Soroka gave evidence that 'minced' is not a term used in the tuna industry; the mincing process is not applied to tuna; and it is minced raw fish which can retain its structural integrity. The appellant as applicant's witness Mr Real testified that 'minced' had no widely accepted meaning in the tuna processing industry. He said it was used in a generic way to describe the wide range of size reduction processes that are performed in relation to fish. The appellant as applicant's further witness Professor Wootton testified that 'mincing' involves size reduction. Initially his evidence was that 'minced fish' was fish minced by shredding, although this was partially retracted in subsequent testimony. He said also that unlike other species of fish, tuna is not minced raw. The respondent's witness Mr Jeffriess testified that 'minced' is not used in the tuna processing industry. The respondent's further witness Mr Wailes testified that 'minced fish' is raw and the species used for the purpose included hake, cod, mackerel and whiting. He said cooked tuna, if minced, would not maintain its structural integrity but would become paste. He relied upon the Codex definition of 'minced fish' as 'fish flesh produced by the mechanical separation from bones and skin of fish or by shredding with a resultant loss of integral structure'. 30 In relation to the Tribunal's use of Grocery Holdings, his Honour was correct that the Tribunal independently decided the issue and did not act as if it was also bound by that decision.

meaning and application of ORDINARY MEANING OF 'MINCED' 31 As the second and third limbs of its case, the appellant contends that his Honour was in error in not finding that the Tribunal failed to apply the ordinary meaning to the facts. Further, it is said, his Honour erred in concluding that the meaning the Tribunal purported to apply was in fact the ordinary meaning. 32 In support the submissions for the appellant return to the fact that the Tribunal reasons are said to focus on the meaning of the phrase 'minced tuna', not 'minced'. It is said that his Honour should have found the Tribunal therefore asked itself the wrong question and erred in law. This, it is said, led the Tribunal into significant confusion and error, insofar as it caused the Tribunal to conclude that the products in question were not minced because they were not a paste. 33 It is also argued that the Tribunal should have pursued a course of making findings of fact on whether the relevant goods had been 'cut up or ground or chopped into very small pieces' rather than pursuing a task of determining whether the imported tuna retained its 'structural integrity'. The linchpin of this aspect of the submissions for the appellant is that the Tribunal had found that the usual and ordinary meaning of 'minced' was: 'The dictionaries I consulted defined minced as cut up or ground or chopped into very small pieces. I accepted that minced products can be coarse or fine. …' 34 A further part of the appellant's contentions on this aspect is that the Tribunal failed to address the issue of whether this fish flesh is separated out or not. 35 The respondent contends that the Tribunal did not confine itself to dictionary meanings and went on to evaluate the product in terms of its size and its structural integrity. Having done so it made the finding of fact that the cooked tuna was not minced. It is submitted this is not reviewable pursuant to s 44 of the Administrative Appeals Tribunal Act because there is no error of law in the finding of fact by the Tribunal in this respect. 36 We agree that the Tribunal did not confine its understanding of the word 'minced' to the dictionary meaning upon which the appellant relies quoted above. Throughout its reasons it referred to various aspects of 'minced' and approached the question in terms of size and structural integrity. In light of the evidence that tuna could not be separated, it was not necessary for the Tribunal to address the issue of separation: the evidence plainly disclosed it to be not an available option. There was therefore no room for an inference that the issue had been overlooked; it just could not occur: cf Applicant WAEE at 641. 37 The evidence was that where tuna is squeezed through a plate with holes of one size, the structure of the fish is broken down and given a pasty appearance. Structure is therefore a relevant matter to be considered on the application of the word 'minced'. The Tribunal's decision on this issue was one of fact.

classification 38 The final contention of the appellant is that the construction by the Tribunal of the various subitems in Item 1604.1 is such that no work is left to be done for subitem 1604.20.00, namely 'Other prepared or preserved fish'. It is contended that on the Tribunal's approach, 'fish in pieces' includes all pieces, portions and particles of fish other than those 'minced' and that the consequence is that there is no content for 'other' fish. The error of law said to have been made by the Tribunal and by his Honour was that each of the words were construed as a discrete word and regarded as not mutually exclusive. Further it is argued that an interpretation was adopted giving rise to difficulties in any objective or wharfside application. 39 We do not consider that the Tribunal or his Honour were in error in construing Item 1604.1. That Item requires it first to be asked whether the prepared fish is whole or in pieces. If it is in pieces it must be asked whether it is minced. Then if it is whole or in pieces but not minced, the relevant classification is 1604.1 and, depending on the variety of fish, duty may or may not apply. If it is minced, the correct classification would appear to be under subitem 1604.20.00 to which duty does not apply. 40 In our view it cannot be concluded that it was not reasonably open to the Tribunal to conclude that the relevant products were 'fish …in pieces'. Its task was to decide, as a matter of fact, with reference to size and structural integrity, where, on the continuum of 'fish…in pieces' to 'minced' fish, the cooked tuna was to be placed. It concluded that it came within the classification of 'fish…in pieces, but not minced'. It was open to it to so conclude. 41 In our opinion the contentions on the appeal do not establish any error of law in the approach of the Tribunal or his Honour. It follows that the appeal must be dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Nicholson and Conti.

Counsel for the Appellant: Dr GA Flick SC with RM Foreman

Solicitor for the Appellant: Rodda Castel & Co

Counsel for the Respondent: A Robertson SC with KC Morgan

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 10 November 2005

Date of Last Written Submissions: 28 November 2005

Date of Judgment: 15 February 2006