• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

In matter 2007/5044, Powerlift (Nissan) Pty Ltd sought review of a Customs decision affirming a refusal to make TCO 0619386. The proposed order described certain battery-powered, rider-seated reach trucks with a retractable mast, specified load capacity, wheelbase and operator position ([2]). Toyota supported Powerlift's application and conducted the proceedings for it, although Powerlift remained the applicant because it had made the TCO application ([3]).

Crown Equipment Pty Ltd brought the other three matters. They concerned decisions setting aside earlier determinations to revoke three TCOs for counterbalanced forklifts: two battery-powered orders and one internal-combustion-engine order ([2]). Toyota Material Handling was joined in Crown's matters.

The central factual dispute was whether Crown's walker stackers were substitutable for the reach trucks and counterbalanced forklifts described in the TCOs. Crown's evidence was that walker stackers were used by small and medium businesses to unload palletised goods from trucks and move them into buildings, including onto racks ([13]). The Tribunal described the relevant activity more generally as moving goods from a hardstanding outside a warehouse into the warehouse for storage ([30]).

The decision was mixed. The refusal to make Powerlift's proposed TCO was affirmed. Crown's three matters were remitted to Customs with a direction that the relevant TCOs be revoked from the dates revocation had been requested ([36]).

Why the court decided this way

The Tribunal framed the main issue as whether substitutable goods were produced in Australia on the relevant day, the same question addressed in the earlier proceeding, Toyota Material Handling Australia v Chief Executive Officer of Customs & Anor [2008] AATA 1108 ([4]). It quoted the s 269B definition: substitutable goods are Australian-produced goods put, or capable of being put, to a use corresponding with a use, including a design use, of the goods described in the application or TCO ([5]).

The Tribunal considered it important to define the relevant use at the right level of specificity. It referred to Seguin Moreau, where the comparison concerned American Oak and French Oak barrels for wine maturation, rather than containers for wine in general. It contrasted Riverwood Cartons, which concerned packaging cans and bottles ([6]). The point in the Tribunal's reasoning was that the way the use is framed affects what goods are compared.

It then stated that the goods need only be put to the same use for substitutability to exist. It regarded price, quality and superior operation as irrelevant to that inquiry, citing Re Lego, Re Vulcan and Re Nordson ([7]). That approach explains why the Tribunal did not treat the asserted efficiency and speed advantages of counterbalanced trucks as decisive.

The evidence addressed possible differences in operating pace, intensity of use, operator requirements and the practical setting. Crown's witness described walker stackers as useful where untrained staff moved goods, including in suburban supermarkets ([15]). The Tribunal also considered evidence about speed and intensity, and questioned the weight of a diagram said to show counterbalanced trucks operating faster because it was not based on actual operating times and did not account for variables such as operator readiness and distance travelled ([18]–[19]).

The Tribunal did not find that the equipment was interchangeable for every imaginable purpose. It distinguished rough-terrain forklifts, which it described as primarily used where there were no paved surfaces, and found walker stackers were not substitutable for that category ([12]). It also accepted that reach trucks or counterbalanced trucks were the equipment of choice in high-volume, high-paced distribution hubs ([33]). Its finding concerned the particular warehouse goods-handling use and low-to-medium lift-height settings in these proceedings, rather than every operating environment.

For that defined use, the Tribunal found the equipment performed the same task: unloading goods from a hardstanding in front of a warehouse and transporting them inside for storage ([30]). It accepted that low-cost Asian imports fell within the TCO descriptions and competed with Crown walker stackers ([28]). It concluded that walker stackers were substitutable for the relevant TCO goods ([33]).

A separate issue concerned whether the Tribunal could narrow the proposed reach-truck TCO. Toyota asked it to consider doing so if it set aside the decision under review ([34]). The Tribunal accepted that it had the powers and discretions available to the original decision-maker, referring to Australian Securities and Investments Commission v Donald. But it read ss 269L and 269SH as controlling the amendment process: s 269L set out steps for amending an application, while s 269SH did not give the Respondent an amendment power on review. It concluded that the AAT itself had no power to amend the proposed TCO in this review ([35]).

Before and after state of the law

This decision did not purport to create a new statutory definition of substitutable goods. The Tribunal applied the definition it quoted from s 269B and explained how it approached the comparison in the particular matters before it ([5]–[7]). On the face of the reasons, its contribution is a practical application of the same-use inquiry to competing material-handling equipment.

The Tribunal's reasoning emphasises that identifying the relevant use is a key analytical step. A comparison framed broadly as “moving goods” might be too general, while one framed around a specific operational task may produce a different comparison. The Tribunal's own example was the distinction between comparing types of oak barrel for wine maturation and asking more generally what containers could hold wine ([6]).

The decision also states a limit on the AAT's ability to alter the proposed description of goods during this kind of review. The Tribunal distinguished its general review powers from the particular statutory steps for amending an application. It concluded that those steps did not authorise it to narrow the proposed TCO on review ([35]). The reasons do not set out a broader account of the amendment regime beyond that analysis.

The judgment refers to the earlier AAT decision in Toyota Material Handling Australia [2008] AATA 1108, involving the same parties and similar equipment, and says the current reasons should be read with it ([1]). It also records that Crown accepted that earlier decision but was particularly concerned with forklifts and reach trucks capable of stacking below six metres ([14]). The present decision therefore addresses a related factual comparison, with the focus on the lower-to-medium lift-height uses described in the evidence.

The supplied judgment does not establish how the law stood after later appellate consideration, nor does it provide a legislative history. Any account of subsequent changes or later judicial treatment would require sources beyond this decision.

Key passages with plain-English translation

At [5], the Tribunal quotes the statutory definition of substitutable goods as Australian-produced goods that are put, or can be put, to a use corresponding with a use of the goods in the application or TCO. In plain English, the comparison is about what the goods do or can do, not merely their labels or technical category.

At [6], the Tribunal says defining the purpose of the goods is a crucial step. Its examples show that a comparison needs a sufficiently precise task. Comparing barrels used for wine maturation is not necessarily the same question as comparing all containers suitable for wine.

At [7], it states: “All that is required to find that substitutable goods exist is that the goods are put to the same use.” The next part of that paragraph explains that, in its analysis, price, quality and superior operation did not decide whether the goods had the same use. That does not mean those matters could never matter in another statutory context. It records the approach taken to the issue before this Tribunal.

At [30], the Tribunal identifies the task as unloading goods from hardstanding outside a warehouse, then transporting them inside to racks or another area for storage. This is the factual bridge between the different equipment types. The Tribunal did not simply say that all forklifts and stackers are interchangeable; it identified a particular use and compared the goods against it.

At [33], the Tribunal finds that walker stackers were “entirely substitutable” for the TCO goods in the uses it had identified. The same paragraph recognises an exception in practice: reach trucks or counterbalanced trucks were preferred in high-volume, high-paced distribution hubs. Read together with [12], the reasons show that the conclusion was bounded by the type of work and operating context considered.

At [35], the Tribunal says it had no power on review to amend a proposed TCO. In plain English, it considered that the statutory amendment procedures could not be bypassed by the Tribunal simply rewriting a proposed description while reviewing the refusal decision.

What fact patterns trigger this precedent

The reasoning is most directly relevant to a dispute where the central question is whether locally produced goods are substitutable for imported goods described in a TCO, and the evidence concerns whether both types of equipment perform a corresponding practical task. Here, the relevant task involved taking palletised goods from a truck or hardstanding and moving them into a warehouse for storage ([13], [30]).

The precedent is particularly tied to competing materials-handling equipment used in low-to-medium lift-height applications. The Tribunal said the equipment discussed was concerned with lift heights up to about 5.3 metres ([32]). It also considered a walker stacker that could lift to 5.7 metres and forklifts or reach trucks competing below six metres ([14]).

The reasoning would be less directly applicable where the relevant use differs materially. The Tribunal expressly distinguished rough-terrain forklifts used primarily on unpaved surfaces ([12]). It also identified high-volume, high-paced distribution hubs as settings in which reach trucks or counterbalanced trucks were used as a matter of choice ([33]). Those passages matter when assessing whether evidence from one operating environment can fairly be applied to another.

The decision may also be relevant where a party asks the AAT to narrow a proposed TCO as part of a review of a refusal decision. The Tribunal's statutory reasoning at [35] addresses that precise procedural question. Its conclusion was based on its reading of ss 269L and 269SH, and the judgment should not be treated as resolving procedural questions under different statutory provisions or different kinds of review.

For a new matter, the factual record would be important. The judgment considers the task performed, lift heights, site conditions, intensity and pace of work, competing equipment and the scope of the TCO descriptions. It does not provide a universal checklist or determine how every difference between products should be assessed.

How later courts have treated it

The judgment supplied here does not identify any later court or tribunal decisions that applied, distinguished, approved or criticised Powerlift (Nissan) Pty Ltd and Anor and Chief Executive Officer of Customs [2010] AATA 34. It would therefore be unsupported to state how later courts have treated this decision.

The reasons do identify earlier authorities used in the Tribunal's analysis. Seguin Moreau and Riverwood Cartons were discussed in relation to defining the relevant use ([6]). Re Lego, Re Vulcan and Re Nordson were cited for the proposition that price, quality and superior operation were irrelevant to the same-use question as framed by the Tribunal ([7]). Australian Securities and Investments Commission v Donald was cited in the discussion of the Tribunal's review powers ([35]).

The earlier AAT decision Toyota Material Handling Australia [2008] AATA 1108 was also directly connected to the proceedings. The Tribunal said these reasons should be read in conjunction with that decision, which involved the same parties and similar equipment ([1]). That is a reference to the earlier decision, not evidence of later treatment of Powerlift itself.

Still-open questions

The decision does not give a comprehensive test for choosing the correct level of specificity when identifying a use. It says that defining the purpose is crucial and gives examples, but the judgment does not state a formula for deciding when an asserted use is too broad or too narrow ([6]).

The reasons also leave open how the same-use inquiry would apply where goods share an ultimate function but differ substantially in operating setting, capacity, safety characteristics or performance. The Tribunal found speed and efficiency arguments did not displace its same-use conclusion in these matters, but it did not decide that such evidence is irrelevant to every question arising under the Customs Act.

The relationship between the evidence of competition and the statutory question could also require close examination in another case. The Tribunal accepted evidence that low-cost Asian imports within the TCO descriptions competed with walker stackers ([28]), but the reasons do not specify what degree or form of market competition is required under s 269B.

Finally, the Tribunal's conclusion about amendment power is expressed for the statutory framework and review process before it. The decision refers to ss 269L and 269SH and concludes that the AAT could not narrow the proposed TCO on review ([35]). It does not resolve the effect of other procedural routes or amendments made under different statutory provisions.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.