Finally, reference may be made to a decision of the Administrative Appeals Tribunal in Case 10,716 (1996) 32 ATR 1132 at 1143. The question that arose in that case was whether trucks of the applicant were:
"... for use exclusively:
(i) within premises controlled by the exemption user ...; or
(ii) in going between adjacent premises covered by sub-paragraph (i); or
(iii) for a combination of both...".
The Tribunal, comprising Mr Barnett, Deputy-President, Professor Hotop and Mr Fayle, Senior Members, found that the vehicles the subject of the application could fall within this description, notwithstanding that they were used as well for the purpose of transporting metal for sale in and around Kalgoorlie. The Tribunal said (at 1143):
"50. However, the Tribunal is of the view that exclusively', in the context of the use of general purpose road vehicles devoted to mining operations, ought not to be construed strictly literally. It would seem reasonable that incidental or insignificant use should not operate to deny an otherwise qualifying use. For instance, if a vehicle should need to travel away from the mine site for repairs or to make an occasional trip to the town dump or be used occasionally for charitable or community purposes, such incidental and minor use, in a pragmatic sense, ought not disqualify the user who would otherwise comply. 52. Having regard to the de minimis doctrine, exclusively' should be, at least, considerably more than `mainly' ... but not necessarily 100 per cent."
However, the Tribunal found that the actual use of the vehicles fell outside the exemption so that the above comments did not form part of the decision.
These examples illustrate two principles. The first is that in an appropriate case the maxim de minimis non curat lex will be applied as a rule of interpretation. To the extent that the learned Deputy-President held that the maxim had no significance as a rule of interpretation of statutes, he erred in law. The second principle which these cases illustrate, however, is that the applicability or otherwise of the maxim depends upon the context in which it falls to be considered. No better example can be given of this than the decision in Case 10,716 referred to above. Clearly, motor vehicles will need to be driven to a repair shop from time to time for repairs. The legislature, in requiring a use of vehicles to be exclusively within certain premises of the taxpayer, could hardly have intended that the very obvious need for vehicles to be driven for service or for that matter to be driven from the dealer's premises to the site of the mining operations before use by the taxpayer in its business could operate to exclude the exemption. Hence the word "exclusively" in the particular context could hardly have its strict meaning of admitting no other application.
The real question in the present case is whether the context of the by-law permits of a de minimis exception where the paper catalogue or paper price list related substantially to products or services of a country other than Australia, but where there was some, albeit small, relationship as well to products or services of Australia which was capable of being categorised as de minimis or trivial and not worthy of consideration. If that question be answered in the affirmative, the question will then arise whether 81 out of some 40,000 items is, in the relevant sense, trivial.
In my view the context of the by-law does not admit of any exception. The word "exclusively" in the present context means what it says. If a catalogue or paper price list relates to some product or service of Australia, then the by-law is not available, even if the great majority of the products or services have their source in a country other than Australia. The present is not a case where resort to logic or legislative policy requires the word "exclusively" to admit of exceptions.
Even if, contrary to my view, there is room in the present context for the operation of a de minimis principle, in my view the inclusion of 81 items can not be regarded as of such triviality as to be ignored. And this is so whether the 81 items are considered alone or by comparison with the other 40,000 items listed in the catalogue. Accordingly I am of the view that although the Tribunal may be said to have erred in holding that there is no principle of law or construction represented by the de minimis rule, that error did not affect the outcome and thus may be disregarded.
The second set of submissions concerned the question of classification. Chapter 49 of the Third Schedule to the Customs Tariff Act 1987 applies to "Printed books, newspapers, pictures and other products of the printing industry; manuscripts, typescripts and plans." Prima facie the applicant's catalogue falls within this heading. Note 5 to the notes to the Chapter, which must be taken into account in construing the principal heading, provides as follows:
"5. Subject to note 3 of this Chapter, 4901 does not cover publications which are essentially devoted to advertising (for example, brochures, pamphlets, leaflets, trade catalogues, year books published by trade associations, tourist propaganda). Such press publications are to be classified in 4911."
Item 4911 has the heading "Other printed matter, including printed pictures and photographs" and item 4911.10.00 covers "Trade advertising material, commercial catalogues and the like".
Before the Tribunal the applicant submitted that it was necessary before a trade catalogue was excluded from 4901 and relegated to 4911, that it be essentially devoted to advertising. This submission the Tribunal rejected. The learned Deputy-President said:
"22. ... It was submitted that not all brochures or leaflets would be necessarily essentially devoted to advertising and that it was necessary to look at each and every one to establish whether the goods under consideration fell within the overall description, whether or not they also fell within the scope of particular examples.
23. I do not accept that once an example has been given, it can be other than a member of the class of which it is said to be an example. A trade catalogue, in other words, is deemed to be essentially devoted to advertising because it is a trade catalogue. The chapter note assumes (and requires me to assume) that all the examples are within the opening generic term."
With respect, I do not agree with the construction adopted by the learned Deputy-President. It can hardly have been intended that a pamphlet, a leaflet or a brochure would fall outside item 4901 and within 4911 merely because they were brochures, pamphlets or leaflets. A pamphlet may relate to a matter of political interest. The pamphleteers of generations past debated in their pamphlets all manner of political matters which would hardly be described as advertising. In my view, their pamphlets would not, if requiring to be classified, be relegated to item 4911. But once it is decided that a brochure, pamphlet or leaflet would not automatically be relegated to 4911 merely because it is cited as an example in note 5, it should follow that a trade catalogue will not likewise be relegated to item 4911 merely because it is a trade catalogue. It will only be because it is a trade catalogue which in fact is essentially devoted to advertising that it will fall within item 4911.
However, the Tribunal then went on to make the following comment in the next paragraph of the reasons appealed from:
"24. In any event, it seems to me that each of the catalogues is essentially devoted to advertising. All the products in the catalogue are offered for sale by setting out their qualities, pricing them and giving them an order code."
The Tribunal dealt with the question in a number of paragraphs concluding:
"In all cases, on an ordinary reading of the words it can only be said that each of the catalogues is essentially devoted to advertising".
The question whether the catalogues are essentially devoted to advertising is a question of fact. If that fact has been found by the Tribunal and it is accepted that it would be open for the Tribunal so to find, then this Court has no jurisdiction to interfere with the Tribunal's decision.