Customs Tariff Act 1987, schedule 3

The relief sought in paras 8 and 9 of the amended application is refused.

Applicant to pay any additional costs incurred by the claim for relief in the said paragraphs of the amended application.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

In the events which have happened, the only issue which falls to be determined in these proceedings is whether a product imported by the applicant and known as InstaBarrier should be correctly classified for the purposes of schedule 3 to the Customs Tariff Act 1987 as being within item 7313.00.00 or within item 7326-90-00.

"Barbed wire of iron or steel; twisted hoop or single

flat wire, barbed or not, and loosely twisted double wire, of a

kind used for fencing, of iron or steel."

3. The product in question is not easy to describe. It is a material used principally as a form of security fencing in places such as gaols and other places where it is desired to confine inmates or to prevent intruders from gaining access.

4. The product consists of strips of metal joined so as to make a continuous product which I shall call a fence. It may be of considerable length and has at regular intervals along its length quite substantial barbs. The barbs protrude out from the edge of the strips.

5. If one excludes from consideration the barbs, the cross-dimension of the product does not exceed 16 millimetres. However, if the barbs are included in the measurement then the cross-sectional dimension exceeds 16 millimetres by a considerable margin.

6. The first question which arises is as to the meaning of the words "barbed wire" in item 7313.00.00. That item appears in chapter 73 of schedule 3 and note 2 that chapter reads as follows:

"In this chapter `wire' means hot or cold-formed products of

any cross-sectional shape, of which no cross-sectional dimension

exceeds 16 millimetres."

7. In spite of the submissions put to me by Mr Stevens for the applicant, I think the cross-sectional dimension of the relevant product exceeds 16 millimetres. I do not think it is possible to sensibly measure the cross-sectional dimension without reference to the barbs.

8. In some forms of barbed wire and, indeed, in the one most commonly manufactured and used, the wire consists of a carrier wire (or more usually two carrier wires) to which barbs are attached at intervals. In such a case it may well be possible to regard the barbs and the carrier wires as discrete objects. But in the case of the product under consideration that does not seem to me to be the case. The barbs are an integral part of the strips of metal which go to make up the product.

9. Mr Stevens also argued that the reference to "wire" in the expression "barbed wire" in item 7313.00.00 should be taken as referring only to what he would term the carrier part of the product and not to the barbs. Whatever might be the validity of that argument in respect of more conventional barbed wire, I do not think it can apply to the product which falls to be classified.

10. It follows from what I have said that since the cross-sectional dimension of this product exceeds 16 millimetres it cannot qualify as being barbed wire or for that matter "single flat wire" for the purposes of the relevant item.

11. However, Mr Stevens puts an alternative argument which, as he submits, requires and justifies inclusion of the product in item 7313.00.00. He says that the product answers the description of "twisted hoop ... barbed or not ... of a kind used for fencing."

12. I am bound to say that this argument has caused me considerable difficulty. There is evidence before the Court as to various meanings which may be attributed to the word "hoop". If one has regard to the common usage of the word apart from technical usage, one would not regard the product in question as being "hoop".

13. Also, if one has regard to the textbooks which have been referred to by the expert witnesses, one would not normally extend the meaning of the word to cover a product of the kind involved in this case.

14. However, the force of Mr Stevens' submission on this part of his argument is that whatever "hoop" means in item 7313.00.00., it refers to product of a kind used for fencing. This appears from the words of the item itself. This part of the argument is reinforced by reference to the explanatory notes to this item which read, in part, as follows:

"This heading covers the following types of fencing or

enclosure hoop and wire (wire is defined in chapter note 2):

1. Barbed wire consisting of iron or steel wires twisted together

either loosely, with barbs or sometimes small sharp pieces of

strip metal at frequent intervals.

2. Narrow flat hoop or wire toothed at intervals and used as an

alternative to barbed wire.

3. Twisted hoop or single flat wire. This ribbon fencing wire is

often used under the name of `torsades'. It consists of

narrow hoop, strip or flat wire which may be lightly twisted.

These goods fall in the heading whether or not they are barbed."

15. If this case fell to be decided only on the question whether this product comes within the definition of hoop, I would be inclined to uphold Mr Stevens' alternative submission. However, with some hesitation, I have come to the conclusion that this product cannot properly be described as "twisted hoop".

16. It is true that the product is coiled and that in the course of manufacture it becomes slightly twisted. But I accept Mr Slater's argument that twisting involves rotation around the long axis and I think it is proper to regard the product as being looped rather than twisted.

17. It is fair to say that the explanatory notes refer to hoop being "lightly twisted" and in one sense it might be said that the evidence supports the view that this product is lightly twisted, but looking at the matter in the broad and as one would see the product at the customs barrier (which is the test adopted in the cases), I do not think it would be recognised as answering the description of twisted hoop.

18. During the course of the proceedings another question arose as to whether or not certain tie wires which were imported by the applicant were or were not accessories to the InstaBarrier product. I am satisfied they are and that matter has disappeared as an issue in the case.

19. I have not referred in these brief reasons to the other matters which were, at the commencement of this litigation, the real matters in issue between the parties. They have ceased to be in contention and I can see no point in making reference to them.

20. In the circumstances I decline to make orders 8 and 9 as sought in the amended application.

21. Applicant to pay any additional costs incurred by the claim for relief in terms of paragraphs 8 and 9 of the amended statement of claim.