Collector of Customs v Agfa-Gevaert Limited M32/1995 [1995] HCATrans 382 (14 November 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M32 of 1995

B e t w e e n -

COLLECTOR OF CUSTOMS

Appellant

and

AGFA-GEVAERT LIMITED

Respondent

BRENNAN CJ

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 NOVEMBER 1995, AT 10.16 AM

Copyright in the High Court of Australia

MR P. BUCHANAN, QC: If the Court pleases, I appear with MR J. LENCZNER for the appellant. (instructed by the Australian Government Solicitor)

MR J.M. EMMERSON, QC: If the Court pleases, I appear with my learned friend, MR J.B.R. BEACH, for the respondent. (instructed by Russell Kennedy)

BRENNAN CJ: Mr Buchanan?

MR BUCHANAN: Can I hand to the Court copies of our outline of argument.

BRENNAN CJ: Yes, Mr Buchanan.

MR BUCHANAN: Your Honours, in order to obtain the exemption from duty which the commercial tariff concession orders provided, it was necessary for the respondent's photographic paper to satisfy two elements which were in dispute. The first was that it met the description "silver dye bleach reversal process" and the second was that it had the image dyes incorporated in the emulsion layers coated on the resin coated paper goods.

Both the tribunal and the Full Court dealt with those two issues separately. The respondent's paper, the Agfa paper is opaque paper on which, at the end of the process of development, appears an image which is received from colour negative film and on the Agfa paper there are three emulsion layers which are coated on the paper and the developing process which is applied to those layers on the paper involves the application of chemicals and it involves light: light going through the negative film to the opaque paper of the respondent.

In each of the three emulsion layers which are coated on the paper there is what is called a colour coupler which reacts with chemicals which are introduced in the developer to deposit in the layer a dye in each layer and the dyes are cyan, magenta and yellow which correspond, or rather, when exposed to light, produce the primary colours red, green and blue. In this respect, the Agfa paper of the respondent differs from the other photographic paper, notably Ilfochrome, where, in the latter case, in the course of manufacture, the colour - we would say dye - is actually introduced into the emulsion layers and is present there.

So that, if you scratch untreated, undeveloped Ilfochrome paper, what is disclosed beneath the film that is on the surface is a colour you can see with the naked eye. Whereas, in the case of the Agfa paper, scratching it leads to nothing in the sense that the colour couplers are themselves invisible and there will not be any colour in the emulsion layers until they are first treated in the developer. Your Honours will see in the appeal book at page 620 in paragraphs 18 and 21 in the evidence of Mr Spring, a description of the elements which are described. In paragraph 18 on page 620 he says:

I have scratched the emulsion layers of the paper that is Annexure H.

That is Ilfochrome paper.

The reader of this declaration will observe that one can see actual layers of dye that are coloured cyan, magenta and yellow. These are the dyes that will make the final colour image as it seen by the consumer on the photographic print after processing.

And then in paragraph 21 he says:

I now scratch the emulsion layer of the papers that form -

other annexures, which are the Agfa papers.

Compared to Annexure H, no such coloured image dye can be seen. This is because the image dyes have not yet been formed. Each of the three papers are classified as "negative-positive" color papers.

As distinct from "positive-positive" colour papers. And to the like effect is a description of another witness, Sakomoto, at pages 472 to 473.

Your Honours, the evidence that was before the tribunal established that there was a recognised meaning which is given by the trade, that is those concerned with photographic materials and their commercial use, to the phrase "silver dye bleach process", omitting the word "reversal" from the phrase and commas that appears in the commercial tariff concession order. It was recognised by the witnesses as a method of developing photographic prints which was used in respect of Ilfochrome paper but not in respect of Agfa paper.

For example, Professor Spring, as many of the other witnesses did, said at page 619 in paragraphs 5 to 7, paragraph 9:

"Silver-dye-bleach", as a term by itself describes a silver based photographic process where image dyes are incorporated in the emulsion and a dye destruction occurs in the developing process yielding a colour print directly from a transparency.

And your Honours will see in the course of the appeal books that the Ilfochrome paper is often described by witnesses as being exemplifying a dye destruction process, which is regarded by them as being distinct from the process that applies to Agfa paper.

Although the trade, as it were, recognised a settled meaning of that phrase, it did not recognise that the complete phrase, "silver dye bleach reversal process" - adding the word "reversal" - had a particular meaning.

TOOHEY J: It is really adding the word "process" as well, is it not? I was going to ask you; is the word "bleach" in "silver dye bleach" just used as a noun or a verb?

MR BUCHANAN: The evidence, your Honour, I think, establishes that the trade seem to regard those words "silver dye bleach" as being a description of a process and accordingly what they did was, as Professor Spring did, read the phrase by omitting the word "reversal", so it became "silver dye bleach process".

TOOHEY J: But that paragraph suggests - and it may not matter in the end - that the expression "silver dye bleach" is itself descriptive of a process.

MR BUCHANAN: Yes, but I think it is fair to say, your Honour, that the trade witnesses regarded it as describing a process, and not as separate adjectives describing an object.

TOOHEY J: Yes, thank you.

BRENNAN CJ: Why are we looking at the evidence as distinct from the findings made by the tribunal?

MR BUCHANAN: Only, your Honour, to explain them and I do not propose to go any deeper into it.

BRENNAN CJ: Are there findings by the tribunal which accord with the evidence to which you have just drawn our attention?

MR BUCHANAN: Yes, there is, your Honour.

BRENNAN CJ: Should we not see that?

MR BUCHANAN: Yes. I take the Court to the fourth volume of the appeal book, the reasons of his Honour Mr Justice Jenkinson, who constituted the tribunal, again at page 788, and at page 796, at the top of the page his Honour considered the whole of the evidence including, I suppose - I would hope - that to which I have taken the Court, and said:

On the whole of the evidence, relating to the expression "silver dye bleach reversal process" I am inclined to think that the words "silver dye bleach" should be given the meaning which usage indicates and that the word "reversal" is to be understood as meaning that reversal of image which occurs in the process of producing a positive print on paper from a positive film.

Now the second part of that sentence relates to the way in which his Honour used the evidence which was given of the effect of introducing the word "reversal" into the phrase. Some of the witnesses said that a reversal process, considering that by itself, was apt to describe the reversal that takes place in producing an image from the positive film which occurs in developing Ilfochrome paper, because the first step in the process by which that transition from the print to the paper occurs involved the generation of a negative image, which is then reversed, and those witnesses included Professor Spring, Mr Sakomoto and Mr Forbes, and their evidence is found at pages 619, 474 and 729. They understood the words "reversal process" to mean that reversal which occurs inevitably, and can only occur in producing a positive print from a positive film.

On the other hand there were other witnesses, for example, Mr Rudolph, whose evidence on this matter appears at pages 245 to 246, who said that the words "reversal process" connoted a process involving a reversal of images and that was not, they thought, apt to describe the process applied to Ilfochrome paper. Rather they thought that it was one which more properly applied to the Agfa paper. Now as the Court has seen, the tribunal held that the whole phrase was effectively to be construed in two parts. His Honour took the trade, the settled trade meaning of the words "silver dye bleach process" and the ordinary meaning, that is one of the meanings which some of the trade thought appropriate to the words "reversal process", to finish up with a construction of the whole.

Your Honours, it was at this point that once the tribunal used that settled trade meaning of the words "silver dye bleach process", the respondent had to fail, and it was this step in the reasoning of the tribunal which the Full Court held to be in error. Each member of the court said that it was an error of law to construe part of a composite phrase according to a technical meaning and part of a phrase according the ordinary meaning of the words used. If I can take the Court to, first of all, the reasons for judgment of Justice Ryan at page 817. At line 30, his Honour said:

It is impermissible, as a matter of law, I consider, to adopt a differential interpretation of a composite phrase by isolating part of the phrase and according to it the technical or customary meaning which that part, standing, alone, can be found, on the evidence, to bear and then construing the balance of the phrase according to the ordinary English meaning of the word or words comprising it.

Justice Gummow at page 832, beginning at the top of the page, said:

It was, in my view, an error of law to construe the phrase "silver dye bleach reversal process" by reference to an accepted trade usage found as to what was seen as one component of the expression, and as to the balance by reference to the understanding of it by some but not all of the trade witnesses.

And, finally, at page 859, Justice French said at line 4 on that page:

In my respectful opinion it is not open to construe the composite term by reference to the trade usage of part of it. The evidence was overwhelming that there was no such usage for the whole. It therefore falls to be construed according to the ordinary meaning of the words used. What that ordinary meaning is, is a question of fact.

And, accordingly, it was for that last reason that the court did not themselves substitute their own holding as to what the word meant but sent it back to the tribunal to find as a matter of fact what the ordinary meaning of the words was.

BRENNAN CJ: What is meant by "ordinary meaning" in the context of a technical frame of discourse such as this?

MR BUCHANAN: That, of course, is the real problem with which the court, in effect, confronted the tribunal to find, construing those words as a whole, as one concept, that in ordinary parlance, they do bear a discernible definite meaning. As your Honours will see, one of the witnesses, at least, said that that phrase - that is, the whole phrase with the word "reversal" in it - was one which he had never encountered in all his years in the industry and it is just not used. And no other witness, I think, said that it was, it did not have a trade meaning. And he went further and said, "I've never heard anybody say it, or describe it".

TOOHEY J: I was going to ask you, Dr Buchanan, what is meant by a "composite" phrase in this sense? Do you accept that description of it?

MR BUCHANAN: No, we do not. I think what is meant by it, your Honour, is that there are a number of words all depending upon the same word process and are necessarily parts of the description of the process. So that it is one process to be read as a phrase having an overall meaning and it is impermissible either to look at individual words separately by themselves, so that you say, "Has it got silver? Has it got bleach?" You do not do that, nor can you, according to the Full Court, divide it into two and use a settled trade meaning for part and an ordinary meaning for another part.

We would say, your Honours, that, first of all, there is no such settled and inflexible rule of construction as the Full Court promulgated but, but it is permissible, where the context demands it, to treat a composite phrase as made up of separate parts but the same result is to be reached by regarding it, not as a composite phrase at all but as a very clumsily expressed jumble, I think is probably the word, or mixture or putting together of two phrases.

The draftsman put a comma at one end and a comma at the other but as is, I must say, often found with legislative instruments that come forward in this way, the rules of syntax are not always scrupulously observed. As your Honours will know, although these orders are characterised as having a legislative quality they are not, for all sorts of reasons, necessarily equated with a statute drawn by a parliamentary draftsman.

They come forward drawn by Customs agents acting on the instructions of their clients who are generally members of the trade which deals in the goods in question and the applicants are required by the legislation to describe the particular goods for which the application is made, for which an order is sought, and the Customs Department does not treat itself as being really part of the drafting process but either rejects or accepts the application as it is put forward and does not descend into the field of drafting itself and add its own words so that the words effectively, the draftsmen or women, are those who are engaged in the business of acting as Customs agents for those who import and deal with the particular goods in question.

BRENNAN CJ: Are there any authorities dealing with the construction of instruments of this kind as there are in relation, for example, to awards?

MR BUCHANAN: No, I think there are not. The construction of tariff concession orders does come before the courts on occasions.

BRENNAN CJ: I was not thinking so much of tariff concession orders by themselves but instruments which are designed to achieve a particular advantage for those who promote them.

MR BUCHANAN: No, your Honour. We cannot point to any such cases. I know of none. Of course, it is not a complete description, with respect, of the way in which these instruments come forward in the overall system in which they are a part to say that they are designed to achieve a particular purpose. That is true of the applicant. All he is interested in is his goods but they do have, and the system gives to them, a much wider effect than that because they will hence forward and until revoked, if they ever are, will act as a rule so that anybody who can bring his goods within the description contained in the tariff concession order can do so and will achieve the benefit of that which is generally the reduction of duty to nothing and in some cases, 2 per cent.

So that it is recognised by the system itself that although the motives of the applicant are selfish, nevertheless, it will have and can have a very wide effect. It may not. It may be limited to goods which only the applicant will ever import into the country but, in most cases, that is not so and it will always have the potential to apply to goods which are not quite the same, although having the same characteristics that bring it within the description, as the goods of the original applicant.

In the passages to which I have taken the Court where it was characterised as an error of law to so treat the composite phrase, their Honours were not saying that, in this particular case, the words of the phrase were to be given their ordinary meaning and not to do so was an error of law because the question whether words in a statute are to be given their ordinary or a special trade meaning is a question of law. Rather, their Honours were saying that it is always an error of law to construe a phrase once characterised as a composite phrase in the way they did in that manner, that is, to break it up into component parts.

We would say that is so because their Honours were not choosing between an ordinary meaning of the phrase as being more appropriate than the particular meanings identified by the tribunal, because the court itself did not say what they understood, in its ordinary meaning, the words "to have". It does become, seen in that way, because their Honours were not choosing between particular types of meanings as answering the needs of this particular case, but rather laying down a rule and following it. No authority was cited for such an inflexible approach and we know of none.

I think it is fair to say that while, in general, the witnesses who were from the trade who were called to give evidence as to what the trade understood by these terms, while they said in general that there was nothing which they knew of that answered the description of the complete phrase, and it was not one used in general parlance, or at least used in the trade, one of them, a Mr Battye, at page 179, suggested that the phrase might mean "a bleach reversal of the silver dye as part of the process of development".

So what he did was he used the word "reversal". He took it out of its place and he put it next to "bleach" and talked about "a bleach reversal" of two of the other words, "silver dye". So he, himself, fiddled about with it in order to reach what he thought was a sensible or at least a comprehensible meaning. It is, indeed, we would say, without resort to such adventurous structuring as that, to say what the ordinary meaning of this phrase, taken as a whole, was.

If one is deprived of the assistance which is given by a recognised trade meaning that the words "silver dye bleach process" give, then the ordinary meaning of the entire phrase, with the addition of the word "reversal", is a mystery, for there is, we would say, no concept in ordinary parlance which the phrase describes. I did say that there was one witness who said, not only is it not a trade term but that he had never heard it used by anybody in his experience. That was the witness Thompson, who said that at page 184 of the appeal book. And if the whole phrase is never used by those whose professional lives are concerned with photography and photographic materials, including paper, it is difficult to see how an ordinary meaning intended by the draftsman is to be discerned. That is an ordinary meaning which, deprived of the assistance which those in the trade can give, can be seen.

Justice Jenkinson, constituting the tribunal, accepted the evidence of the only witnesses who thought the phrase did have a sensible meaning and they achieved that, and his Honour adopted it by construing part according to a settled trade meaning, and part according to the normal meaning of the words used.

TOOHEY J: What do you understand is the effect of the Full Court's judgment when the matter goes back to the tribunal. The reference to the ordinary meaning of the words used suggests, perhaps, that the tribunal simply takes each word in the expression and gives it a meaning, or does it preclude the tribunal from treating the expression as a composite one, but giving it a meaning which is reached by somehow applying the meaning of the words that go to make up the expression?

MR BUCHANAN: I think the latter, your Honour. I do recall - and I will give your Honour the reference to it when my junior finds it - in the reasons for judgment of Mr Justice Gummow, he did say that the phrase was to be construed as a whole. He did not look at each particular word as if it were yet another qualification.

TOOHEY J: I was prompted to ask you that question because of the passage - I think it might be in the judgment of Justice French that you took us to in page 859, where his Honour said:

It therefore falls to be construed according to the ordinary meaning of the words used.

MR BUCHANAN: Yes. That is without regard to the special meaning which trade witnesses give because they understood part of the words to mean the dye destruction process of development.

TOOHEY J: Yes. I understand that but it just was not clear to me whether his Honour was saying, "Well, you look at the expression and you do the best you can with the meaning of each word as it appears in the expression, and somehow at the other end you arrive at - - -

MR BUCHANAN: Yes.

TOOHEY J: Well, you do not have to arrive at a composite expression, you just have to answer the question: do the goods fall within that description or not?

MR BUCHANAN: Yes, but as words describing a single concept. The passage I had in mind in the reasons for judgment of Mr Justice Gummow is to be found at page 832 and the passage to which I would take the Court begins at line 18. In the paragraph above that his Honour had identified what he said was the error in dividing the expression into the two parts, and then he said:

Rather, it was necessary to construe the phrase as a whole.

And neither his Honour nor the other members of the court appeared to contemplate in terms that you were to treat each word as if it were separated by a comma. Rather it was, indeed, a composite phrase and it was to be construed as a whole and you were to seek, in the ordinary meaning of each of the words used, some clue to a process which was identifiable.

TOOHEY J: So you would sit down with a dictionary, would you?

MR BUCHANAN: Well you would sit down with a dictionary. You could also use, I would have thought, the evidence as to how photography works, if you did not know, that is, not evidence of what meanings are given to words by the trade, but rather what in fact occurs in the process of development of different types of paper and, using your dictionary, see if you could come up with an overall description or, rather, a fixing of a concept which embraced particular types of paper.

DAWSON J: But, really, what you are suggesting is those words do have an ordinary meaning, each one of them, but that is of no help.

MR BUCHANAN: Yes, that is right, your Honour.

DAWSON J: What you have to do is then take the composite phrase, or at least the composite phrase "silver dye bleach process", and that has a trade meaning, and that is subject to evidence.

MR BUCHANAN: Yes, your Honour.

McHUGH J: The whole problem in this case seems to me to arise out of the fact that it seems to be regarded as that there are two exclusive categories, ordinary meaning and trade meaning, or ordinary meaning and special meaning, but the real question here is what do these words mean? And talking about trade meaning or ordinary meaning are just some sort of a guide; they are not fixed rules. You have got to try and say, whether one looks at it from a speaker's point of view or from a reader's point of view or the hearer's point of view, it may be a separate question, but ultimately is the question, what does it mean?

MR BUCHANAN: Yes, your Honour.

DAWSON J: Except in the text here where it is a question of the jurisdiction of the tribunal and of the Appeal Court. You have to draw a line, do you not?

MR BUCHANAN: Yes you do.

DAWSON J: Artificial or not.

MR BUCHANAN: If the line your Honour's thinking is between questions of matters of fact and matters of law, we do not say that that is a line which really gives one an answer in respect of this issue, although it does in respect of the second. That is the question of image dyes. There the line was, we would say, transgressed or stepped over by the court.

TOOHEY J: You might say, for instance, having heard the evidence that it is apparent that this particular process does not involve a reversal as that term is ordinarily understood, and that might be enough, if you took that view, to say, "Well, it doesn't fall within the description."

MR BUCHANAN: Yes, that might well be so.

TOOHEY J: I only offer that by way of illustration of a way in which relying upon the evidence, and without necessarily giving meaning to every component of the expression, the tribunal might conclude there is simply no reversal involved here.

MR BUCHANAN: Yes, although the Full Court would say you cannot do that just looking at the word "reversal" by itself. You have to look at it with such light as is thrown on it by the words preceding it.

TOOHEY J: That is true, but it may be that the tribunal - and I am not saying in this particular case, but in such a case the tribunal might say on any view of the evidence and on any understanding of the word "reversal", there is no reversal or no reversal process involved here.

MR BUCHANAN: Yes, although that would be difficult here because there was evidence - - -

TOOHEY J: That is why I qualified what I said by saying, "Not in this particular case".

MR BUCHANAN: That is true, your Honour, yes.

DAWSON J: Would you be allowed to say, "Well, look, we know what silver-dye-bleach process is, and we can give a meaning to that as a composite phrase. The word `reversal' seems to have been inserted by mistake. We'll disregard it"?

MR BUCHANAN: I think the Full Court would not let you do that.

McHUGH J: You can do it in respect of the statute. Why cannot you do it in respect of the - - -

MR BUCHANAN: Well, we would say you can, and I think it comes back to what I was saying about whether it is truly a composite phrase or not. We take it that when their Honours said it was a composite phrase it meant that everything in it bounded by the limitations imposed by the two commas, one had to have regard to all of it, and you are not allowed to pluck out words saying they should not be there, and it is an obvious mistake regarded when the whole thing is put in its proper context.

We would say that the courts are not so bound, particularly when one looks at and when one is dealing with commercial tariff concession orders drawn as these ones are, without the help of a parliamentary draftsman who, by and large, adheres to the strict rules of grammar and syntax. We would say your Honour is quite right in pointing to the absence in this field of more than general guidelines. After all, the range of contexts in which particular words are going to be used is almost infinite and we would say that courts and tribunals should not be shackled by rules which applied seemingly as rigidly as this to exclude evidence which is helpful.

Indeed, hitherto, when the courts have expressed themselves in terms of using material - be it from dictionaries or be it from those engaged in a particular trade - they have expressed themselves in terms which allow you to use the whole of the field to find what is helpful and not make rigid distinctions between trade meanings; it is either wholly a trade meaning or it is either wholly an ordinary meaning. The rules have hitherto not been expressed in that way.

TOOHEY J: Would you have any quarrel with the Full Court's approach that the phrase must be construed as a whole so long as, in construing it, the tribunal could resort either to trade usage or to ordinary meaning as appropriate?

MR BUCHANAN: Yes, we would, because that would give one, we would say, effectively the sensible result.

TOOHEY J: Perhaps I misunderstood your answer: I said, would you have any objection?

MR BUCHANAN: No, none at all, your Honour.

TOOHEY J: I thought you said you would.

MR BUCHANAN: Did I? I am sorry, I did not mean to.

BRENNAN CJ: Mr Buchanan, the essential that you make is that the tribunal approached it in the way in which they did and that there was no error of law in that.

MR BUCHANAN: No, there was not.

BRENNAN CJ: And if there is no error of law, there is no right of appeal.

MR BUCHANAN: That is true, unless it is an error of law to break up a composite phrase.

BRENNAN CJ: Unless the method adopted in construing the phrase by the tribunal reveals an error of law.

MR BUCHANAN: Yes, and it would, I suppose - - -

BRENNAN CJ: And then your proposition is that it is not an error of law to have done what they did and that it was an error of law to have insisted on the method of construction so far as the method was defined by the Full Court.

MR BUCHANAN: Yes, your Honour.

GAUDRON J: Is it a question of law whether or not it is a composite phrase?

MR BUCHANAN: Yes, I think it probably is in the end, your Honour, because one's approach to it is not just a question of finding the meaning of words, it is a question of the way in which you go about it and I would have thought that while the meaning of words is a question of fact, but the syntactical approach one takes to an expression found in a statute is rather, I would have thought, a matter of law which does not depend on the evidence and does not depend on the facts.

DAWSON J: Construction rather than - - -

MR BUCHANAN: Yes, construction rather than meaning: applying a settled meaning found as a fact to other facts.

BRENNAN CJ: Could I just take that a little further because I do not think I have grasped it quite. If in this phase here we had a phrase which was familiar in the trade, let us say leaving out the word "reversal", then one would understand from the trade evidence that that phrase was to be construed as an entirety.

MR BUCHANAN: Yes, your Honour.

BRENNAN CJ: Does not one then depend on the trade evidence in looking to see whether it should be construed as an entirety once you introduce the word "reversal"?

MR BUCHANAN: Yes, one does, coupled with, I think, the realisation that there is no meaning which, in ordinary parlance, leaps to one's mind.

BRENNAN CJ: I appreciate that, but what I am endeavouring to come back to is Justice Gaudron's question to you and your answer to her Honour. What is it, when you are dealing with a technical set of words, that allows you as a matter of law, removed from the evidence, to say whether or not a phrase is to be interpreted as an entirety or not?

MR BUCHANAN: Because, and I think the answer does not suit me very much but, because it is a matter that goes to the construction of the phrase or sentence concerned and how the meaning of the words is to be approached, that is, what you do when you do the fact finding part which is ascertain the meaning of the words. I have difficulty with the distinction between "construction" which is a matter of law and "the meaning of words" which is a matter of fact, but I would limit "the meaning of words" and this factual context to what it is that the words mean, that is, what they are equivalent to, their definition if one likes, without looking to see how the interplay of words themselves is to be approached having regard to their grammatical place in a sentence or a phrase.

DAWSON J: It will always ultimately be a question of construction and, therefore, a question of law, will it not? When we take a section of the statute, you can go through and say what the individual words mean, but when you finally say what the section means, that is law.

MR BUCHANAN: Yes. It may be that there is not much discretion left because the meaning of the individual words will dictate the result so that the question of construction is not really a great step in itself, but it will always be there, your Honour, yes.

DAWSON J: But always the ultimate conclusion - - -

MR BUCHANAN: Ultimately, there would always be one, yes. Can I just refer the Court briefly to two decisions. The first is the Collector of Customs v Bell Basic Industries [1988] FCA 371; 20 FCR 146, at page 157, and it is really for the helpful list of propositions extracted from the cases, and we would, with respect, submit accurately, dealing with one's approach to the choice of trade or ordinary meaning of words, and the rules themselves or guidelines are not framed in terms which exclude help where it is to be found. The first of the rules is set out about a third of the way down the page:

With respect to revenue laws directed to commerce, courts are more ready to conclude that items have been described according to common commercial or trade usage rather than in their natural or ordinary sense -

citing a number of authorities including that of Justice Mason in Henderson. I can skip over (ii) and go to (iv):

But how the trade describes goods is not conclusive. Trade evidence may limit the meaning of an expression to the denotation which it has at a particular time without making allowance for its capacity to extend to new exemplifications which have the characteristics of accepted denotations:

Henderson's Case again. There are other rules, and can I go to the last on the next page, (viii):

If there is a common, commercial or specialised meaning of the particular item established by evidence, it is necessary to determine whether the legislation has used the word in its ordinary signification or in the special sense.

But none of the rules are expressed in terms which do not permit of an appropriate choice to be made where the circumstances require it. That was also made clear by the House of Lords in Maunsell v Olins (1975) AC 393 in a well-known passage at 391. In the fourth line on that page, Lord Simon said:

It is sometimes put that, in statutes dealing with ordinary people in their everyday lives, the language is presumed to be used in its primary ordinary sense, unless this stultifies the purpose of the statute, or otherwise produces some injustice, absurdity, anomaly or contradiction, in which case some secondary ordinary sense may be preferred, so as to obviate the injustice, absurdity, anomaly or contradiction, or fulfil the purpose of the statute: while, in statutes dealing with technical matters, words which are capable of both bearing an ordinary meaning and being terms of art in the technical matter of the legislation will presumptively bear their primary meaning as such terms of art (or, if they must necessarily be modified, some secondary meaning as terms of art).

Then, if I can go down to His Lordship referred to Whitley v Stumbles and Bracey v Read, and then said:

But, in fact, these two statutory situations - dealing with ordinary people in their everyday lives, on the one hand, and dealing with technical branches of the law, on the other - are only two extreme situations. Statutory language, like all language, is capable of an almost infinite gradation of "register" - i.e., it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc.). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.

That is not, we would say, an approach which means that one, as a matter of law, cannot resort to a helpful meaning - a helpful trade meaning in this care - which assists one to understand what otherwise appears on its face to be incomprehensible.

McHUGH J: Is not the law on the construction of industrial awards and agreements perhaps a better guide to the meaning of an instrument such as is involved in this case, than cases concerning with statutes? One is trying to understand what the people who drafted the award would have intended by it.

MR BUCHANAN: Yes, your Honour, with respect that is so, and one can go perhaps even a bit further and say that the way in which the courts approach the construction of written contracts is - - -

McHUGH J: Yes, or a will.

MR BUCHANAN: Or a will, where, as here, the draftsman is a lay person struggling to enunciate what is in his mind, and the more limited and restrictive rules there are in dealing with people who do not always follow precisely all the rules of grammar and syntax, is hardly helpful.

Can I go, your Honours, to the second question, as a second issue. The question of whether the image dyes in the case of the respondent's paper were incorporated in the emulsion layers coated on the goods. One of the ordinary meanings of the word "dye" is colour or hue. Another ordinary meaning of the word "dye" is a material used for dyeing. At page 833 in his reasons for judgment, Justice Gummow set out those two meanings, among others, which appear in the Oxford English Dictionary; the first of them was:

colour or hue produced by, or as by, dyeing; tinge, hue,

And then he said:

Another is concerned not with that which is produced by the activity of dyeing, but with that which brings about the result. This meaning is:

"a material or matter used for dyeing; esp colouring matter in solution."

The tribunal, Mr Justice Jenkinson, found that the ordinary meaning of the word "here" that was applicable was that of colour and not something which was a step-in or a help to produce colour and the tribunal also found that there was a usage in the trade of the term "image dyes" which meant a reference to the colour itself and not the material used to produce it.

Can I take the Court to page 805 in the appeal book and to line 25. His Honour said:

It is true that the formation of the colour which the eye sees on the developed paper is "achieved by a combination of differing hue (colour), chroma (intensity), saturation (density) and arrangement of the dyes relative to each other". But it is, as I find, also true that there is a usage among those concerned with the technology of colour photography to refer to those substances which on the surface of the developed paper, having been combined (in the sense of that word in the passage quoted), enable the human eye to see colours.

And then, if I can go down to line 5 on page 806, his Honour said further:

But if I were wrong in finding that usage, I would yet conclude that the meaning I have wrongly thought that usage supplies is supplied by the context.

The members of the Full Court, on the contrary, held that the ordinary meaning of the word "dye" in this commercial tariff concession order was material which contributed to the formation of colour and not the colour itself. So, the fact that you could scratch the Agfa paper and not find any colour, because it was not there and had yet to be formed because a chemical reaction had to take place, did not prevent it from being the goods to which the order applied.

TOOHEY J: But, if the ordinary meaning embraces both, on what footing did the Full Court say that the tribunal was wrong in its choice of meaning?

MR BUCHANAN: There was only one member of the court who advanced a reason. Mr Justice Ryan who merely said that at page 818, did not in fact say why he chose in this case one of the ordinary meanings, but Mr Justice Gummow, at page 837 did. It is the last paragraph on that page. At line 23 his Honour said:

As I have already indicated, in my view, the meaning sought to be given by Agfa is within the ordinary meaning or import of "dye", and its conjunction with "image" whilst inelegant is not inapt. Taken as a whole, the terms of the T.C.O.'s are indicative of the processes by which the paper is to be developed, and the "image dyes" are identified or limited by reference to their incorporation in the emulsion layers which are coated upon the resin coated paper. The Agfa Paper answers that description.

So his Honour was saying, this is a description in terms of process, accordingly it is appropriate and correct in this context to see a material in a process that produces something as answering the description of the word "dye".

TOOHEY J: Do you mean because of the expression "incorporated"? Is that what points up the possibility of a process rather than merely a colour?

MR BUCHANAN: I think his Honour was rather pointing to the order as a whole. His Honour said so:

Taken as a whole, the terms of the T.C.O.'s are indicative of the processes -

So I think his Honour looked at the whole expression rather than use one word such as "incorporated" for the purpose of arriving at that result.

TOOHEY J: Did the word "image" play any part in this? It is referred to, but I am not clear either in the reasoning of the tribunal or the reasoning of the Full Court what role it did play.

MR BUCHANAN: Well, I think it is - - -

TOOHEY J: Could I just interrupt you before you answer. I take it there was no evidence that image dye itself was a technical - - -

MR BUCHANAN: Yes, there was, and what his Honour did was find that notwithstanding there was no unanimity among the witnesses, nevertheless he found as a trade usage that the expression "image dyes" was one which was appropriate to connote the Ilfochrome Paper or other paper where the dye is in the emulsion layer, that is the colour is in the emulsion layer, rather than one that contains a chemical combined with others that will ultimately produce colour.

TOOHEY J: Well, then why speak of the ordinary meaning of the word "dye" if in the end the conclusion is that there is a trade usage attaching to the meaning "image dye"?

MR BUCHANAN: His Honour was making sure, or seeking to make sure, by tackling the matter from saying that, "If I'm wrong in finding that there is a trade usage" - because his Honour had effectively to choose between the witnesses. It was one of those cases - -

TOOHEY J: I am sorry. I am in the realm of the Full Court at the moment. Are you?

MR BUCHANAN: Yes, I hope so.

TOOHEY J: When you spoke of choosing between the witnesses, I thought you might have been taking us back to the tribunal.

MR BUCHANAN: No. Either will do and, in effect, what the Full Court had to do was find that no, the tribunal was wrong in finding a trade meaning or usage of the expression "image dyes" because the trade usage or meaning found by the tribunal was one which excluded Agfa paper, and then the Full Court had to deal with his Honour's alternative basis, that is the tribunal's alternative basis, of finding that in the ordinary meaning of the words "image dyes" the Agfa paper was not included, was not covered. We would say that in doing both of those things, that is, in effect, differing from the tribunal as to whether there was a trade usage and differing from the tribunal as to what the meaning of the word was, the court did cross over that line which it ought not to have crossed, the line established by section 44 of the Administrative Appeals Tribunal Act.

I said to the Court that although Mr Justice Ryan did not advance a reason for choosing one of the possible ordinary meanings, Justice Gummow did, and he did so on the basis that because the order as a whole is concerned with a process, you adopt that meaning which is more appropriate to a process. We would first of all say that is not the appropriate way to look at this commercial tariff concession order.

It really is - and I do not breach any rule of construction in propounding this - at least a description of a process in so far as the first issue is concerned, but then it describes - and we would say clearly enough - properties of physical goods. There is no inherent inconsistency or difficulty created by a commercial tariff concession order describing goods which is in part a description of the process which goods undergo and the part they play in an industry and in part a description of the physical properties of the goods themselves. It is not necessary to choose, as Justice Gummow did, characterising the whole as a process or the whole as something else. It was indeed, and could be logically and sensibly, two things.

Mr Justice French at page 861 approached the matter slightly differently. He said at line 13:

In my respectful opinion, the phrase "image dyes incorporated in the emulsion layers" ought to have been construed according to its ordinary meaning. The evidence of usage was not of a technical or special kind but rather argument about the correct application of the words used in their ordinary sense. His Honour's choice of a propounded trade usage to construe the phrase was therefore wrong in law. There is nothing in the context in which the words are set to suggest a limitation or extension of their ordinary meaning. And although that ordinary meaning is a question of fact, it accommodates the colour couplers in emulsion layers in the Agfa papers.

Now, we would say clearly enough what is the ordinary meaning of a word is a question of fact which is for the tribunal and not for a court reviewing the tribunal's decision under section 44 and the cases dealing with that matter are conveniently collected in the judgment of the Full Court in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, at page 287. I do not intend to take the Court to the passage itself, it stands for that simple proposition. It is also the case and it is set out in the same passage the same rule that applies to the question of fact of determining what is the trade meaning of a word. The tribunal found that there was a trade meaning.

TOOHEY J: Trade meaning for what?

MR BUCHANAN: The words "image dyes" or, rather, to be accurate, "the image dyes". That phase, according to his Honour, amongst those versed in the trade, connoted the colour present in the emulsion layers of the paper of the type Ilfochrome and perhaps others.

TOOHEY J: Could I just interrupt you there? There seem to be two steps involved. The first is whether that expression, "image dyes" has a trade usage. If it did, was it incumbent upon the tribunal to accept that?

MR BUCHANAN: No. First of all, the tribunal had to find that there was a trade usage which, in this case, involved making a decision between competing pieces of evidence, because not all the witnesses were unanimous, unlike their approach to the silver dye bleach process, in saying that these words had a settled meaning in the trade. Some witnesses did, and his Honour clearly enough preferred them, that is, preferred their evidence that it was a settled trade meaning that image dyes require the colour to be in the emulsion layers.

TOOHEY J: That is the second step as to what it meant, but my question was initially directed at really the first step in deciding whether there was a trade usage or not. You say that was really a matter for the tribunal.

MR BUCHANAN: Yes, we do. The evidence on which the tribunal could have relied is found in the evidence of a number of witnesses. Can I just give the Court a reference to the evidence of Professor Spring at page 621 in paragraph 26 of his statement, and in the course of his cross-examination at page 699 at lines 26 to 31. That was, we would say, not as Justice French characterised it, an argumentation dissertation on the meaning of words, but rather a factual account of the meaning which those in the trade gives to these particular words.

TOOHEY J: I do not want to interrupt you, but I take it you will point to the passage in the tribunal's decision in which the acceptance of one witness over another is referred to.

MR BUCHANAN: Yes, your Honour. I have already read it but in another context. It is the sentence at page 805. It is found at line 29:

But it is, as I find, also true that there is a usage among those concerned with the technology of colour photography to refer to those substances which on the surface of the developed paper, having been combined (in the sense of that word in the passage quoted), enable the human eye to see colours.

And there was, indeed, evidence, Professor Spring among the witnesses, to justify that conclusion. Justice Ryan, although he differed from the tribunal in finding what the meaning of the word was, did not mention or deal with the question of whether there was a trade usage and whether a trade usage had been found. Justice Gummow did, and can I take the Court to page 837 where his Honour at the top of the page said:

It is true that his Honour held that there was "a usage" among those concerned with the technology of colour photography which reflected the meaning which he gave to the expression. But, as I read the reasons, it was not held that this gave to "dyes" what Isaacs J. called a "definite commercial designation different from [its] ordinary meaning":

We take that to mean and the reference to Whitton v Faulkiner to mean that a trade meaning can only be given and effect given to it where the words themselves, according to their trade meaning, are different from the ordinary meaning of the words. And in a sense, that is true if a word only has one meaning - a limited word - and the trade uses it in precisely the same way as a layman would, then it would be a waste of time to talk about trade meanings. One gets no additional assistance from that.

But in a case where the ordinary meaning of a word is not one definite and limited meaning but rather where the word admits of different ordinary meanings - and in this case, differences which have a practical consequence, that is, either the colour being dye or a material produces colour, on the other hand - then where the trade recognises one of those ordinary meanings to the exclusion of all others, we would say that it is a special meaning to which resort can be had in construing the phrase in which the word has a part, provided that it is appropriate to give it a trade meaning and not an ordinary meaning.

We do not understand Mr Justice Isaacs in Whitton v Faulkiner to be saying that is not so. His Honour there was dealing with a case where it was ruled inadmissible to lead any evidence of what the trade meaning of a phrase was because what the Court was concerned with was whether a number of chassis which carried electric motors constituting a road train, whether they answered the description of a motor car, lorry or wagon. This was in 1915 and the evidence that was sought to be admitted was of what the trade would call this novel contraption when it finally arrived and the Court held you cannot do that. That is, you cannot say that there is a settled trade meaning to an object which has yet to be found and employed in the trade. That is, you cannot predict what the trade is going to do.

His Honour was not concerned with the question of a special meaning which was different from an ordinary meaning and, although his Honour did express it in those terms, at the page referred to, page 127, by Mr Justice Gummow, that was not necessary because his Honour was not directing his mind to the question of whether there had to be a difference between the trade meaning and the ordinary meaning, and we would say, logically, I suppose, yes, there must, when there is only one ordinary meaning and the trade meaning is precisely the same. It is not and assistance is to be giving in construing phrases and words, when the trade limits a word to one of its particular ordinary applications, to the exclusion of all others.

So that we would say the tribunal was dealing with a word which his Honour was entitled to find was to be construed according to its trade meaning. His Honour found what that trade meaning was and, we would say, his Honour was entitled to use it even though it was a limitation of the ordinary meaning of the words to one of their ordinary meanings, and did not produce a different result in terms of being a foreign concept - something which a layman would not understand by the words.

Accordingly, your Honours, in our submission the tribunal correctly held that the respondent's paper did not meet either of the criteria which were in issue. The tribunal was not obliged, we would say, to treat the words "silver dye bleach reversal process" as a composite phrase and exclude the assistance of a definite recognised trade meaning, and its findings as to the words "the image dyes" were within its exclusive province of deciding, as matters of fact, issues which were for it and not for a court reviewing its decisions under section 44. If the Court please.

BRENNAN CJ: Thank you, Mr Buchanan. Dr Emmerson.

MR EMMERSON: If the Court pleases, I hand up copies of the respondent's outline of argument.

BRENNAN CJ: We already have that.

MR EMMERSON: I think it was faxed through but we have hard copies if these are easier to read and use.

BRENNAN CJ: These are quite legible, thank you.

MR EMMERSON: If the Court pleases. Our submission is that the Full Court was right, both in its identification of there being an error of law on what one might call the second phrase in dispute and also on the way that it handled the matter of construction in each case. Could I first deal with the matter of the phrase "silver dye bleach reversal process". In our respectful submission, the Full Court was correct in saying that this phrase should be construed as a whole, but that where his Honour Mr Justice Jenkinson, sitting as the Administrative Appeals Tribunal, went wrong, was that instead of construing the phrase as a whole, he gave part of it, being the first three words and the last word, a meaning as a term of art.

We have used the expression, "term of art" in our outline of argument for this reason that it is easy to strike trouble by the use of the word "technical" in a case such as the present where one is concerned with the manner in which film is developed because, in a sense, every word may have a technical meaning in the sense that it is used in the context of technology but that meaning may, nevertheless, be an ordinary meaning rather than some special limited or expanded meaning and for the notion of some limited special meaning I have used the expression, "term of art".

Where, in our submission, the tribunal went wrong was that having identified the evidence that the composite phrase "silver dye bleach reversal process" was not a term of art, the tribunal nevertheless went on to treat it as if it was made up of a term of art, namely "silver dye bleach process" with the word "reversal" tacked on to it.

Now, we say that this approach was wrong; that what one has got to do is recognise that you have here a composite phrase. It is describing a process. Clearly enough that process is a process whereby the paper is to be developed, and what one has to ask is whether, so approached, that phrase correctly describes the process by which the papers in dispute are developed. Now, my clients say that it does correctly describe that and that there was evidence before the tribunal which should have caused the tribunal to say that the phrase correctly described the process which is used for the development of the Agfa papers.

TOOHEY J: What do you mean, Dr Emmerson, when you say that there was evidence which required the tribunal to reach a contrary finding? I take it you are not saying that there was evidence as to the meaning of particular expressions or, if there was, that is something that the tribunal should not have relied upon. But are you saying that the tribunal should have, as it were, begun with the ordinary dictionary meaning of each word in the expression and applied that meaning in each case to the evidence?

MR EMMERSON: With the qualification that when one says "ordinary dictionary meaning" I am allowing in this discussion the idea that one is concerned with a dictionary such as would be used by people working in a technological context, but the steps that should be taken are to find out what is the ordinary meaning of the words used in the phrase and then to construe that phrase. Where the tribunal went wrong was in treating itself as being constrained by a term of art which was sometimes used for a particular process but that term of art was of course not the phrase that the court was called upon to construe. So it went wrong as a matter of construction.

McHUGH J: Could you take me to the passage where you say that the court felt constrained to come to that meaning as opposed to just using that evidence to reach its conclusion?

MR EMMERSON: What I had in mind was the passage that my learned friend relied upon in which, having considered various arguments that were put, what the court said at the top of page 796 was that on the whole of the evidence the tribunal was:

inclined to think that the words "silver dye bleach" should be given the meaning which usage indicates and that the word "reversal" is to be understood as meaning that reversal of image which occurs in the process of producing a positive print on paper from a positive film.

TOOHEY J: But that hardly amounts to a finding that the tribunal was constrained to approach the matter in the way in which it did as opposed to the tribunal holding that it was permitted to approach the matter in the way in which it did.

MR EMMERSON: I would accept that, your Honour. We would say, nevertheless, the tribunal did approach the matter in that way and the tribunal went wrong in so doing.

TOOHEY J: But, does your argument have to go so far as to say that, not only was the tribunal not entitled to feel constrained, but the tribunal was not permitted to take the approach that it did?

MR EMMERSON: We say that in the circumstances of the case, this was a wrong construction and in that sense, it was not permitted to take the approach that it did. I used that cautious way of putting it, if the Court pleases, because in our submission, our learned friends put rather too highly what was the approach of the Full Court. As we read, at least the decisions of Justices Gummow and French, they were not saying that one could never, under any circumstances, have regard to evidence about the existence of a term of art when construing a composite phrase.

What they were saying was that, having got to the point of construction of the composite phrase, the tribunal went wrong and, of course, they give reasons why they say the tribunal went wrong. It is that error of construction which constitutes the error of law that the tribunal made in considering the first of the phrases in dispute.

McHUGH J: I have some difficulty with that. It seems to me that what the tribunal said was that there is no dictionary in this trade which give these words a particular meaning. However, there are a number of dictionaries in the trade which give parts of these words a particular meaning and I am going to use this or that dictionary. My own knowledge of the word "reversal" ultimately I give these words a meaning. Where is the error of law in that, if that is the correct hypothesis?

MR EMMERSON: The error in law there would have been, if that was the approach of the tribunal, to say that there was no meaning at all to the words "silver", "dye" and "bleach" other than in the context of "silver dye bleach process". We say that that is not what the tribunal really did. The tribunal had before it evidence of various processes which were used for developing paper and it was, of course, my client's case that once you have understood the meaning of the individual words, "silver", "dye", "bleach", "reversal" and "process", then you have got to construe the composite expression.

We say that the tribunal went wrong in construing the composite expression by treating it as if a component of it was "silver dye bleach process", which it was not, and treating that as a term of art. We say that the words "silver", "dye" and "bleach" are all part of the ordinary language of this sort of technology; that there is a perfectly rational meaning that one can give to the whole expression; that the whole expression reads on to the Agfa papers. It is by this artificial narrowing by treating the words as if they said, "silver dye bleach process" and then taking that as a term of art, which was wrong.

There was simply no evidence before the tribunal and nor did the tribunal suggest that the composite phrase was itself a term of art. It is the reconstruction of that composite phrase to make it into a term of art that we say was an error in construction.

DAWSON J: Why can you not take part of the phrase and say it is a term of art?

MR EMMERSON: In this particular case there are a number of reasons why we would say you cannot take it and say it was a term of art. First, the only context in which "silver dye bleach process" is a term of art is where those words occur in that particular combination. It was not suggested in the evidence that the individual words in other configurations did not have perfectly ordinary meaning within the realm of photography.

DAWSON J: But those words are in that combination. Admittedly, there is another word there, but it may be inappropriate; the word "reversal".

MR EMMERSON: Your Honour, the presence of that other word means that they are not in that particular combination.

DAWSON J: They are if you ignore the word "reversal" or give it some consistent meaning.

MR EMMERSON: We say that to ignore the word "reversal" takes you outside the term of art that was established, because - - -

DAWSON J: It leaves you with the term of art.

MR EMMERSON: But the act of taking out the word "reversal" we say is impermissible. What one has got is a total phrase which requires to be construed and we say that it was an error in construction to say, "We will construe it as if one of those words was missing".

DAWSON J: Why can you not come to the conclusion that the word "reversal" was placed there in error or inappropriately?

MR EMMERSON: We would say that you could only come to that conclusion if you are really driven to it, that is to say, if otherwise the composite phrase has no meaning, but while the composite phrase has no meaning as a term of art, the composite phrase is composed of words all of which do have a meaning in the photographic industry - - -

DAWSON J: But which when taken as a whole do not mean anything.

MR EMMERSON: No, we would not accept that, with respect, your Honour. Taken as a whole we say that the composite expression applies to our process.

GAUDRON J: And what do you say its meaning is?

MR EMMERSON: Could I perhaps take the Court to some explanatory papers which appear in the evidence. There is explanatory material in the second volume of the appeal papers beginning at page 225, and the relevant matter which describes the paper in dispute is set out at item H, which is on page 233. Now that diagram sets out schematically the several steps that take place. If the Court looks at the part ignoring the coloured squares at the top and the bottom, you have three parts of a diagram each of which has three layers, and those are the three colour layers in the Agfa film.

The successive blocks then as you come down describe the three steps and they are described as exposure, and colour developer, and bleach fix. Now, the first of these is the one in which the silver is changed in its chemical form so that you have a latent image which is produced. That is the exposure step. The second which is the colour developer step is the one in which the relevant dyes are activated so that is the step involving the activation of the dye. The third step is the one in which there is a bleaching out of the silver so that you get the eventual picture.

Now, we say that when you take that account the expression "silver dye bleach reversal process", which is obviously referring to a process of development, reads onto these three steps of development. And so we do not accept the suggestion that there is no meaning to the composite phrase. All we would say is that there is no term of art for the composite phrase.

McHUGH J: But the words have no meaning standing alone. Unless I misunderstood your argument, you seem to isolate each word and then say, "We fall within silver, we fall within dye, we fall within bleach, we fall within reversal, therefore it is a silver dye bleach reversal process".

MR EMMERSON: Not quite that, with respect, your Honour. What we say is you have got a three-step process and the expression "silver dye bleach" refers to the three steps in the process.

TOOHEY J: Do you mean it does, as a matter of ordinary language, or it would seem to me that you are getting perilously close to wanting to attach trade usage yourself.

MR EMMERSON: No, I attempted, but maybe unsuccessfully, your Honour, to draw the line a little bit earlier in my submissions since we are concerned here with a technological area then each of these words has a meaning which is a meaning in a technological context.

TOOHEY J: Your objection is to the coupling of silver dye and bleach.

MR EMMERSON: The silver dye bleach process is - - -

TOOHEY J: That has been said a number of times but, in fact, if you look at what the tribunal said at page 796, I am not sure if that is correct, and I am equally unsure as to what difference it makes, but in line 3 on that page, what Justice Jenkinson fastened onto was the expression "silver dye bleach", not "silver dye bleach process", and then spoke of the word, "reversal" and then - perhaps I may be reading something into it that is not there - the process was then used, as it were, to refer to everything that had gone before, but you have rather approached the matter on the basis that it was silver dye bleach process to which a term of art was attributed, and then reversal was added having regard to its ordinary meaning, but that may not be so.

MR EMMERSON: The approach that the tribunal is taking is the one which was, in fact, put to it by counsel for the Commissioner and which is set out at the bottom of 793 beginning at line 23. His Honour there describes what Mr Corke, who appeared for the respondent says, and at line 23 at the end he says:

He relied on substantial evidence for a finding that in that usage the phrase "silver dye bleach process" was intended as a reference to the process by which a particular photographic paper sold in this country under the name Ilfochrome is treated in development of a photograph on that paper.

The point that was here being made was that there was a composite expression "silver dye bleach process" which was sometimes used to describe a particular proprietary process being the one which is used for Ilfochrome and sometimes referred to as the "dye destruction process". So, we would say that the word "process" is part of his Honour's reasoning in setting up the term of art.

TOOHEY J: Maybe, although if I recall correctly, the evidence of Professor Spring to which we were taken earlier was to the effect that silver dye bleach, that those words were indicative of the process.

MR EMMERSON: Yes, we would read Professor Spring as not dissenting from the proposition that it was in the context of a process rather than saying - - -

TOOHEY J: No, I was not saying in the context: that it constituted a process. It may be that that is why his Honour isolated the words "silver dye bleach" at the top of page 796. But, could I just ask you this, Dr Emmerson, because I want to see how far the argument goes: if, for instance, the tribunal had said the word "silver" has a particular expression in the trade, or take any word, silver, dye or bleach, and "we propose to give that trade meaning to that word", just one word, "otherwise, look at the ordinary meaning of the expression", would you say that was something that the tribunal could not do?

MR EMMERSON: We say that the tribunal would have been wrong to do that in this particular case. We do not say that there are no circumstances whatever in which a trade usage could appear.

TOOHEY J: Do you mean appear in a composite expression which otherwise carried its ordinary meaning?

MR EMMERSON: One could construct a composite expression which otherwise carried its ordinary meaning if one said, "I have a consignment of Ilfochrome film". Then Ilfochrome would be used in a particular sense and the rest of the sentence would be used in its ordinary meaning. I do not know whether this was precisely what your Honour was putting to me, but certainly we would accept that one can construct sentences which make perfectly good sense and in which one word may be given a trade meaning.

TOOHEY J: It just seemed to me that the Full Court was approaching the matter on the footing that somehow there was an error of law involved in attaching a trade meaning to one component, or one or more components, of an expression in order to arrive at what the Full Court saw was the task of the tribunal, namely to give meaning to the composite expression. I was wondering, if that be right, how far the argument goes. Does it mean that in this case it was not open to the tribunal because of the fact that the term of art referred to basically the whole of the expression, save for one or possibly two words, or does it mean that you can never couple ordinary meaning and trade meaning in order to arrive at the overall meaning of a composite expression?

MR EMMERSON: The Full Court, we would say, did not go as far as that, and, indeed, if the Court would refer to page 832 in the reasons for judgment of Justice Gummow, we would say that his Honour clearly understood that. At the top of the page he says:

It was, in my view, an error of law to construe the phrase "silver dye bleach reversal process" by reference to an accepted trade usage found as to what was seen as one component of the expression, and as to the balance by reference to the understanding of it by some buy not all of the trade witnesses.

Now, pausing there we read that sentence as being directed to the particular phrase that his Honour was concerned with and not to any phrase.

McHUGH J: Even if you accept what Justice Gummow says in the first paragraph, the next paragraph seems to me to be a non sequitur.

MR EMMERSON: Could I, with respect, go to the next sentence in the first paragraph and then perhaps on to the following one. He says:

As I have indicated, the question of whether or not a word or phrase as it appears in legislation is to be given an ordinary meaning or some special meaning or an extension or limitation of an ordinary or special meaning, is a question of law.

So that his Honour is able to recognise that depending on context a particular word or phrase may be given an ordinarymeaning, it may be given a special meaning, or it may be given some modified meaning. Now, we say that that sentence is important as showing that Justice Gummow was not, in fact, suggesting an inflexible rule such as was put by my learned friend but, rather, was directing his mind to the construction of the particular phrase with which he was concerned. Now, going on to the next paragraph beginning at page - - -

BRENNAN CJ: Why do you say construction as against the meaning of the word?

MR EMMERSON: Yes.

BRENNAN CJ: Why do you say construction, in that sentence?

MR EMMERSON: We say that - - -

BRENNAN CJ: In that sentence. That sentence is wrong, is it not?

MR EMMERSON: No, with respect.

BRENNAN CJ: If you have got a technical case, you have a technical witness in the box, and you ask the witness, "Does this term have a particular meaning in the trade?" and you get an affirmative answer, can you ask the witness what that meaning is?

MR EMMERSON: Yes.

BRENNAN CJ: And if you get a particular meaning different from the ordinary meaning, is it a question of fact or a question of law whether that meaning can be applied to the interpretation of that term?

MR EMMERSON: It is a question of fact whether there is a technical meaning, it is a question of fact what that technical meaning is, but it is a question of law whether in a particular context - - -

BRENNAN CJ: That is different. There is no reference to context here.

MR EMMERSON: With respect, there is, in the sense that I have just been talking about. It is a word or phrase as it appears in legislation. His Honour, in our respectful submission, is talking about the context there, and so we say that once you go to the context so that you are engaged in the task of construction, it is at that stage that you get to a point in law. This is in - - -

MR EMMERSON: Because, we say, that leads you with an inconsistency that if you take the expression "silver dye bleach process" it is inelegant but it is a label which is sometimes attached to a specific process, namely the Ilfochrome process. So that if you say I am using a silver dye bleach process, then that could be taken to be equivalent to saying, "I am using the Ilfochrome process". If you say, "I am using the reversal process", then if one treats that as a term of art one ends up with a different process which is not the Ilfochrome process.

BRENNAN CJ: If one treats it as a technical term?

MR EMMERSON: If one treats it as a technical term then we would say that read onto Ilfochrome it is awkward but we do not go so far as to say that it is impossible.

BRENNAN CJ: Well, then if one takes the collocations I have put to you and treats it as conveying a conception and "reversal" as conveying a conception and puts them together, each as qualifying process, where is the error of law? What is the error in construction?

MR EMMERSON: We say it is a wrong construction because you should not take the whole phrase as meaning that. The word "reversal", as I say, if taken as the reversal process, is talking about something else. If one is saying, "Oh, well, let us perhaps somehow constrict the meaning so that it refers to Ilfochrome process", then there is a strong indication that that is not what is intended, because why does one have the word "reversal" at all?

BRENNAN CJ: It may be a strong indication, but is there an error of law?

MR EMMERSON: It is a strong indication that a construction should be made in a way which is not the way in which the tribunal made it and, if the tribunal was wrong on the point of construction, then, in our respectful submission, the tribunal made an error of law. That is how we put it. Could I perhaps, since we are on page 832 and there is a question from your Honour Justice McHugh which I have not yet answered, go to the second paragraph on that page:

Here, it was not contended by either side that the phrase bore a special meaning as understood in the trade.

And that is common ground. He said:

That being so, it was, in my view, an error then to seek to construe it by division into two parts, one which had a trade usage and then seek to resolve any apparent contradiction between that trade usage of one component and the meaning of the other component.

The contradiction was referred to by the tribunal where he said in various places that witnesses, seeing a contradiction between the expression "the reversal process" and "the silver dye bleach process", concluded that one should construe the expression "silver dye bleach reversal process" not as being a term of art, but as being a phrase which had a technical meaning but not as a fixed term of art.

His Honour says that, in construing the matter the way he did, the learned judge who constituted the tribunal made an error of law and the correct course, as Justice Gummow held in the passage beginning at line 18, was to construe the phrase as a whole. We say that is what you have to do. He then deals with the submission which was put that if this course is followed, then it had been put for Agfa that the evidence establishes that the Agfa product falls within the ordinary meaning.

His Honour did not then go on to consider the correctness of that submission because his Honour there drew the line, again correctly in our respectful submission, between question of fact and question of law and held that the matter should be sent back to the tribunal on that point. It was a direction to construe the phrase as a whole. In our respectful submission, there was no error of law in the way that his Honour approached the matter but - - -

McHUGH J: Is the second paragraph an accurate description of what the trial judge did? It is certainly not an accurate description of what appears at 796, is it? He did not construe the one part first and then the word "reversal". He expressed the view that the expression "silver dye bleach" had a particular meaning and the word "reversal" had a particular meaning.

MR EMMERSON: I think, with respect, this has got to be read in the context of what his Honour says both before and after. His Honour, immediately after the passage that your Honour has referred to does deal with the colour reversal process. He is making there a decision about whether one is here talking about colour reversal process, and he says at line 10:

The colour reversal process is that to which alone the witnesses concerning trade usage on whose evidence Dr Emmerson relied say that the expression "reversal process" refers.

And he goes on to describe that and he then deals with arguments which were put both for and against the proposition that there was an inherent contradiction here. His Honour also goes on to deal with other matters on this point of construction. So we would say that the particular context in which his Honour is talking about this is that he deals with the notion of the reversal process and he deals with the notion of the silver dye bleach process. He attempts a construction which we say goes on the wrong footing, and thereby falls into an error of law and it is, in a sense, a product of that error that his Honour does not go on to say, "But if I'm wrong in all of that and I construe silver dye bleach reversal process as a composite phrase, this is what I conclude." His Honour did not do that, and that is why the matter has had to go back.

Some other matters that his Honour relied upon we say are not matters which founded the conclusion that he reached as a matter of construction. He says that an argument had been put, although I think in fairness to his Honour, his Honour does not actually rule on this argument. But he sets it out at page 797, the argument being that the expression "silver dye bleach reversal process", as we would construe it, becomes too broad. We say that when you consider the particular context in which this tariff concession order is made, that in itself is not an aid to construction. The expression comes immediately after the words, for instance, "in sheets or rolls". Those are words which, plainly enough, will apply to any colour paper. We say that if one is looking at the context in the TCO as a whole, one has to look for the whole of it in order to see how wide or how narrow it is.

Now there are two things to be observed here: one is that the predecessor of the TCO had added to it at the end the words "for production of positive prints", and that is set out at page 842 in the reasons for judgment of Justice French, and so one looks there and sees at the bottom of the page:

"Paper, colour, in sheets or rolls, silver dye bleach reversal process, with the image dyes incorporated in the emulsion layers, coated on a resin coated paper base for the production of positive to positive colour prints."

Now, that limitation was there before August 1987 and the present tariff concession orders arose because my clients had been importing their so-called CR312 paper under that order and when it became clear that that order was not going to be continued they applied for a tariff concession order in the same language as was then existing.

That would have limited the matter to production of positive to positive colour prints. In fact, what happened was that the appellant removed the words "for the production of positive to positive colour prints". In our submission, the natural interpretation of that removal is to say that the appellant was broadening the existing tariff concession order. So it removed an existing constraint, that constraint itself being part of the argument that one cannot simply say that this tariff concession order would apply too widely. It originally applied - - -

BRENNAN CJ: What is the significance of all of this, Dr Emmerson?

MR EMMERSON: The significance of all of this is that if you look to see what the tariff concession order was intended to do, then one finds that two things are of relevance. One is that it was intended to cover my client's CR312 paper.

BRENNAN CJ: And why would we be concerned with what the intention was? We are concerned only with whether there was an error of law in the course which the tribunal adopted.

MR EMMERSON: Yes, but we say that there was an error of law in the construction of the tariff concession order which the tribunal adopted and in order to aid the task of seeing what is the correct construction, one should look, in our submission, to see the mischief that the tariff concession order was supposed to deal with or the work that it was supposed to do.

McHUGH J: But does it not appear that your client itself did not think it was covered for nearly three years. These two orders came in in January 1988 and it was apparently not until December 1990 that a Customs consultant went to your client and said they might be able to import this paper under those two orders. That does not seem to indicate your client thought, for some years, that these orders were intended to cover it.

MR EMMERSON: Can one separate out, with respect, your Honour, what my client was trying to do and what the appellant did? What my client was trying to do was obtain a tariff concession order which would apply to its CR312 paper which was positive to positive. It made an application. Aa TCO was made; it was accepted by my client and by the appellant that it applied to the CR312 paper, and my client was happy.

As your Honour rightly points out, having achieved what it set out to achieve, my client did not then say, "Well perhaps this order goes further than we originally intended". If one, however, looks at it from the point of view of the Collector of Customs, it was the Collector of Customs who did make the change, and one can assume that some change in meaning was intended, and the meaning that we say really leaps from the page is that there was no longer to be a limitation to positive to positive colour prints.

McHUGH J: But these TCOs were brought in over objections from competitors, were they not? Was there any evidence as to what the objections were, or whether there were any objections from the other?

MR EMMERSON: I think the position was that the competitors were notified but did not object, though I do not think, to be fair, that we can draw anything in particular from that, because the notification was to enable the CR312 paper to come in and there was no objection to that.

BRENNAN CJ: Dr Emmerson, for myself I can only say that I cannot see how the history of this affects the correctness of what appears on page 796.

MR EMMERSON: The particular submission that I was putting was really dealing with what appears on page 797. That is to say, there was an argument which was put for the present appellant and for the intervening party that the expression "silver dye bleach reversal", as we would construe it, was too wide because it would cover too many things. I was dealing with the answer to that and the answer to that is you cannot just take that phrase out of its context. If you look at it in the context in which it first appeared, there are clearly other important parts of that earlier TCO which limit its operation.

So, one cannot draw the inference that the expression "silver dye bleach reversal process" must be read in a specially narrow way, still less that it must be read as being limited to the product of a single particular manufacturer. That was where we come to in this but we do also say that - - -

BRENNAN CJ: That is all very relevant perhaps to the meaning which should be given to the phrase as a matter of fact, but what does it have to say about the error of law?

MR EMMERSON: In our submission, the questions of fact are, first, whether the phrase as a compound phrase is a term of art, and the answer is, no, it is not, and that has always been common ground between the parties. Having reached that point, then the meaning of the phrase in the context in which it appears is a matter of construction and that is a question of law. So that is the question of law which we - - -

BRENNAN CJ: The way you construe it is a question of law but once you determine that way, you then have to give it an actual meaning.

MR EMMERSON: We would say that in construing it you are giving it an actual meaning and that exercise in construction is what Justice Gummow calls a lawyer's task. So once one gets to the point that the method of construction which the tribunal adopted was in error, then, in our submission, you have then got to go on to the next stage and say, "Well, let's construe the expression as a whole and find out what it means".

BRENNAN CJ: I shall not delay you beyond this: could you articulate what is the correct rule of construction which you say out to be applied in deriving a connotation of this phrase?

MR EMMERSON: The correct rule of construction is, first, you can inquire whether the phrase is a term of art. Having determined whether it is a term of art, and in this case having decided that it is not a term of art, one next asks what the individual words in it mean to the extent that that gives rise to any difficulty and then one embarks on the approach of construing the phase as a whole and seeing what that means.

GAUDRON J: But we are all assuming that the words have an ordinary meaning, that the phrase as a whole, when construed according to ordinary factual meanings, does in fact have a meaning.

MR EMMERSON: Yes.

GAUDRON J: I, for my part, do not see that meaning. I have no idea what it might be and if I cannot see a meaning or cannot comprehend a meaning, then I cannot see why it is not quite legitimate to do what the presiding member did.

MR EMMERSON: The presiding member, however, did not say that he could not carry out the task of giving the composite phrase a meaning. He just, as it happens, did not do it.

GAUDRON J: And nobody else has, including yourself.

MR EMMERSON: Yes. This was argued before the tribunal over several days and I have attempted to state very compendiously in answer to an earlier question from the Bench what meaning we give to the composite phrase. Our difficulty here is caused simply by the fact that the tribunal having, as we say, in error proceeded along a particular path, the tribunal did not go on to make the findings which are required in order to determine what is the meaning of the phrase when you approach the matter of construction correctly, and so it had to go back. But it is, with the greatest respect, putting the cart before the horse to start with the proposition that there is no ordinary meaning, therefore we must look for a technical meaning. The question is to first ask whether the whole thing has got a technical meaning. If it does not, then one has got to parse it and one has got to look at it.

GAUDRON J: Yes, that is the problem. Having decided that, as a whole, it has not got it, there is then none the less an assumption that you cannot sever it into parts. You talk about reading it as a whole, but in terms of reading something as a whole you can sever it into its parts to see what the meaning of the whole is, in the ordinary process of giving meaning to a phrase.

MR EMMERSON: I am, with respect, not denying that for one moment, your Honour. What I am saying is that the phrase, taken as a whole, does not have a meaning as a term of art, that is to say it does not have some special restricted meaning, or, if it comes to that, expended meaning, other than what one can get from the ordinary words - - -

GAUDRON J: Not necessarily; that is the assumption you make, other than what you can get from the ordinary words.

MR EMMERSON: Well, the position is that none of the witnesses had any experience of the total phrase being used as a term of art. This is not a combination of words which had any particular meaning, let alone an accepted meaning in the trade as a term of art; that is to say, meaning something other than what one would get from looking at the words. Now, one therefore must, in our submission, go back and look at the words and find out what they mean and then ask the question whether, applying the ordinary meaning in that sense, one can determine what this phrase means.

McHUGH J: But that is the problem, is it not, this reference to ordinary meaning? It seems that there is a dichotomy between ordinary meaning and technical meaning. The real question is, what does it mean? The words may have no ordinary meaning in the sense that they would be understood by the ordinary person. They certainly have no meaning to me in the ordinary way and they obviously do not have a special meaning in the trade. But, one has to say, "What does this mean?" If I were to ask what was the intention of the drafter or how would it be understood - - -

MR EMMERSON: I would agree with that with one qualification, if I may respectfully put it, that I had attempted, but perhaps unsuccessfully, to point out that the distinction that I was drawing is more aptly, in this context, between ordinary meaning and term of art rather than ordinary meaning and technical meaning.

McHUGH J: I would have thought, perhaps, between ordinary meaning and secondary meaning might be a better - and one asks, "What is the secondary meaning of these words?", because I do not think they have an ordinary meaning.

MR EMMERSON: I would prefer "term of art" but I would not actually dissent from the use of the expression "secondary meaning" if one is talking about secondary meaning of a particular phrase here. Here, the total phrase had no secondary meaning in that sense and we say that there are just a whole lot of indications that the particular approach then that was taken by the tribunal was flawed, not because we say you can never have regard to secondary meaning. We do not say that, and I have attempted, by pointing to passages in what Justice Gummow says, to show that nor did the Full Court. But, in the absence of secondary meaning, you have to have what we would call an ordinary meaning.

McHUGH J: That is the problem I have. If somebody says, "I leave all my om to my brother", "om" has no ordinary meaning and it has got no secondary meaning, but it meant something to that particular testator. So, that is the question.

MR EMMERSON: All right, but then you ask the question, "Well, what did it mean?" and in will construction, you look to see the background and what the testator meant. Here, though, we do not have that problem because all the words in the phrase have an ordinary meaning, albeit one meaning in the context of this particular technology. The distinction that I am putting and which we say Justice Gummow correctly applied, is set out in some propositions which his Honour lists at page 825. If the Court will look at his subparagraph (iv) at line 20:

The question whether or not a word or phrase in legislation is to be given its ordinary meaning or some special meaning or an extension or limitation thereof is a question of law.

But (v):

The effect or construction of a term once its meaning or interpretation is established is a matter of law.

Then he says:

So also is the question of whether the facts as found fall within the terms of the law -

and over the page at 826, in dealing with his use of the word "generally" in the immediately preceding subparagraph, he says:

there may be a number of ordinary senses and it then is necessary to select that which is appropriate, and because whilst the word may have but one ordinary meaning that is imprecise, the word will take its colour from the context and that will require construction of the law, a lawyer's task.

And a little bit further down at No (ix), he says:

the expression must be uniformly understood in the specialised sense in the relevant trade and have been so understood when the law in question was enacted.

So that, his Honour is drawing, in our submission, a perfectly clear and correct distinction between what are questions of law and what are questions of fact and is also dealing quite expressly with the extent to which one takes evidence as to meaning of words or as to questions of usage of terms of art and how one applies them to the matter of construction.

BRENNAN CJ: Perhaps you can develop that further at quarter past two, Dr Emmerson.

MR EMMERSON: If the Court pleases.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

BRENNAN CJ: Yes, Dr Emmerson?

MR EMMERSON: If the Court pleases. Before the adjournment I had been taking the Court to some propositions of law which are set out in the reasons for judgment of his Honour Justice Gummow at page 825, and I think that I had drawn attention, in particular, to his propositions numbered (iv), (v), (vii) and (ix). Similar propositions are set out in the reasons for judgment of Justice French in a passage beginning at page 853, and, in particular at that pages first proposition:

The question of whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.

And 4:

The effect or construction of a term whose meaning or interpretation is established is a question of law.

Now, those are propositions which are in line with Justice Gummow's propositions (iv) and (v).

DAWSON J: I do not know that I understand 4. I can understand where there is a problem in construction, and one has to construe the words in order to give them meaning you can say is a question of law, but there may be occasions when the meaning is perfectly plain and no real construing is required. Is it still a question of law in the end?

MR EMMERSON: We would say it is to the question of law, although it may be an elementary one, your Honour.

DAWSON J: But if the meaning is plain, the meaning of the words is a question of fact and having discovered that meaning that is all that you need to do, I cannot see that there is any question of law involved.

MR EMMERSON: So far as the individual words are concerned, of course we accept that the meaning of the individual words is taken individually as a question of fact, but you put them together in, in this case, a tariff concession order, and the construction of that is a question of law, we would say.

DAWSON J: Well, that is casuistry: a fact plus a fact plus a fact is fact.

MR EMMERSON: No, with respect, your Honour, a fact plus a fact plus a fact is a collocation of facts.

DAWSON J: It is still fact.

MR EMMERSON: If one is looking at a phrase or a sentence or an order as a whole, then we would say that the effect or construction is a question of law. Now, it may be so plain that there is no dispute about it, in which case one never gets to this difficulty, but suppose that there is an error made, because, of course, this is the context in which all this appears, then if one has to characterise that error as an error of fact or an error of law, once you have got correctly the meaning of the individual words, we would say that if there is an error of construction of the composite, then that is an error of law and that is - - -

DAWSON J: So that if you have one word, that is a question of fact. If you have two which you read together, that is a question of law, the meaning of it?

MR EMMERSON: If there is a question of construction of those two - - -

DAWSON J: That is what I am asking you. Is there a question of construction then merely because you have two words and not one?

MR EMMERSON: There could well be - - -

DAWSON J: No, it is either one or the other, is it not, on your approach to it?

MR EMMERSON: No, because as your Honour was putting to me, there may be, indeed often will be, many cases in which no question arises at all.

DAWSON J: But you said, nevertheless, it may be a simple proposition; it is a question of law.

MR EMMERSON: Yes, if - - -

DAWSON J: Then, on your approach, the meaning of one word may be a question of fact. The meaning of two words together must be a question of law.

MR EMMERSON: I do not go as far as that because, of course, there can be circumstances in which a composite phrase has an established meaning in, for instance, a particular industry, and we have that argument that arises in this case. The question of whether there is a usage of that composite phrase in a special sense is a question of fact, but then there is a question of law as to whether it is used in a particular in that sense, and that is a question of law.

McHUGH J: I must say I have some difficulty with this proposition 4. Take a case of an oral contract containing what is alleged to be a term of art and submitted to a jury which answers a special question. Now, it might give rise to res judicata or issue estoppel but it is difficult to see how it gives rise to a question of law. Is it only a judicial determination that makes something a question of law or is it confined to a document?

MR EMMERSON: Suppose that one has a contract and there is a dispute as to the construction of that contract, then we would say that the answer to that is a matter of law, though we would add that the cases that we have cited and the proposition set out by Justice Gummow and Justice French tell you the extent to which evidence is admissible for determining the underlying fact but the ultimate question of the construction of the document is, we would say, a question of law.

McHUGH J: Yes, but that is because of an artificial element. The construction of a document is always a question of law. It is just this, the effect or construction of a term without any reference to context or as to whether it is oral or written in No 4 seems to me to be in need of some qualification but it may not affect this case at all.

MR EMMERSON: We would say it does not affect the case and his Honour is certainly not saying that you disregard the context because his Honour, in the start of this proposition, the question of whether or not a word or phrase in legislation is to be given its ordinary meaning or some special meaning or an extension or limitation thereof is a question of law. In our submission, his Honour is clearly referring there to a matter of context and, indeed, we would say it was an ordinary principle of construction.

McHUGH J: Yes, I know but these five propositions do not seem to be sequential; they seem to be independent of each other, do they not? Anyway, do not let me delay you.

MR EMMERSON: They are related, we would say. They are not intended, as we would read them, to provide, as it were, a recipe book saying whenever you get a document, you must go through these steps. What his Honour does is look at the existing authorities, including the Bell Basic Case and the Pozzolanic Case where some of the propositions are collected and then he collects them again himself, as does Justice French in the passage beginning on page 853. Again, Justice French, at 853, his proposition No 4 again refers to:

The effect or construction of a term whose meaning or interpretation is established is a question of law.

As to the use of the trade, Justice French deals with this in part in further propositions beginning at the bottom of page 854. We draw attention to proposition No 4:

But how the trade describes goods is not conclusive. Trade evidence may limit the meaning of an expression to the denotation which it has at a particular time without making allowance for its capacity to extend to new exemplifications which have the characteristics of accepted denotations.

In paragraph 6 he says:

It may be less difficult to establish a trade meaning which extends the ordinary meaning of an expression than one which limits the ordinary meaning in a specialised way.

Of course, the present case is one in which, on our learned friend's argument, there would be a very drastic limitation in that the whole of the tariff concession order would be limited to a single product of a single manufacturer.

GAUDRON J: Again, I do not know that you can say that without indicating what the ordinary meaning is.

MR EMMERSON: The particular proposition I was seeking to say was that the construction contended for by our learned friends would have the effect of limiting this tariff concession order to a single product. We put forward a rival construction of that and we say that you simply look at the ordinary meaning of the words, you find that you have an apparently descriptive phrase, "silver dye bleach reversal process", and you ask yourself, we say, whether that describes the successive steps of the process.

I indicated in answer to a question from your Honour this morning the way this matter is put. We accept that this is not a matter which is sought to be resolved by this Court because that is a point on which the case has been referred back to the tribunal. But we certainly have what we say is the ordinary meaning. We say that the ordinary meaning extends beyond a single specific proprietary product.

BRENNAN CJ: What do you say the issue is for the tribunal to determine when the matter goes back?

MR EMMERSON: The issue for the tribunal to determine when the matter goes back is what is the meaning of the phrase "construed as a whole".

BRENNAN CJ: That is a question of construction.

MR EMMERSON: That is the ultimate question that the tribunal has to answer, but on the way there, of course, the tribunal has to determine what is the meaning of the individual words.

BRENNAN CJ: What are the conflicting proposals which are advanced for the meaning of the words, as between what does the tribunal have to select?

MR EMMERSON: The tribunal simply has to assign a meaning to the individual words. It has not done that, you see, yet. That is the difficulty.

BRENNAN CJ: That may be so, but there must be evidence either way on some proposition which justifies it going back.

MR EMMERSON: Well, there is a lot of evidence about what the various processes which are used in developing photographic paper are.

BRENNAN CJ: No doubt. What are the options open to the tribunal? One option is that those words describe the process at page 233. What other options are there?

MR EMMERSON: Could I perhaps qualify that option? One option is that the Ilfrochrome process is the process that is referred to by the phrase concerned. I use that expression referred to rather than your Honour's "described" for this reason, that the way in which the tribunal approached it was not to take the words as describing and describing uniquely the Ilfrochrome process but rather to treat them as the name by which that process is sometimes referred. So it is a naming exercise rather than a describing exercise. That naming exercise is wrong and so one then has to go back and work out what the individual words in the phrase mean and then give a meaning to the phrase as a whole.

BRENNAN CJ: What are the options?

MR EMMERSON: The option, we would say, is to give the meaning which we would give the phrase in which you treat it - - -

BRENNAN CJ: That is page 233, is it not?

MR EMMERSON: - - - treat it as taking - - -

BRENNAN CJ: Whatever page it was, I thought it was 233 that you were describing.

MR EMMERSON: We would say that one meaning is that it describes this. We do not have to say, nor do we say, that it describes only this.

BRENNAN CJ: What else does it describe?

MR EMMERSON: But that it describes this.

BRENNAN CJ: What else could it describe?

MR EMMERSON: It could describe one or more other developing processes.

BRENNAN CJ: Are they covered in the evidence?

MR EMMERSON: Yes, at least in part. For instance, it describes the process which is referred to at 234, which is a different process; it is a positive to positive one. Once again you have a stage in which what is dealt with is the silver, then one in which the dye is activated and then a bleaching stage. So that process would also be described. That is, in fact, what happens with the Agfa CR312 paper.

TOOHEY J: Well, if the matter went back, Dr Emmerson, would it be open to the tribunal to refer to trade usage to determine the meaning of any component of the overall expression?

MR EMMERSON: If it was in truth a component of the expression, yes; the tribunal could consider trade usage.

TOOHEY J: When you say "in truth", what do you mean.

MR EMMERSON: We say that the error that the tribunal made beforehand was to treat the composite expression as if it was made up of the term of art "silver dye bleach process", plus the word "reversal", which is either dismissed as a mistake or for some other reason not given any real effect. That would be a wrong identification of the components of the phrase but, otherwise, yes, the tribunal can inform itself about the role of silver and the changes that take place with various silver compounds in the course of exposure and development. It can - - -

TOOHEY J: Is that to give a meaning according to trade usage, or simply for the tribunal to inform itself on what is involved in the process?

MR EMMERSON: It is to inform itself of what is involved. It is in that sense that we say that, although we are in a technical area, the words are to be given their ordinary meaning. That is not to say that it has to be a meaning which is immediately intelligible to the layman but it is not some special technical or limited meaning, not what his Honour Justice McHugh referred to as a secondary meaning. It is to be given its ordinary meaning in this context.

BRENNAN CJ: What is the difference between the processes described at pages 233 and 234 so far as silver, dye and bleach are concerned, and Ilfochrome paper?

MR EMMERSON: Ilfochrome paper is a different process. That is set out in one of these diagrams.

BRENNAN CJ: Is there no silver, no dye or no bleach in Ilfochrome?

MR EMMERSON: No, there is silver and there is a dye and there is a bleaching.

BRENNAN CJ: So, we have silver, dye and bleach in both processes?

MR EMMERSON: In all three there is a stage involving silver and a stage involving dye and a stage involving bleaching, yes.

BRENNAN CJ: Is there a stage involving reversal?

MR EMMERSON: In the meaning that we would give to the word "reversal", yes.

BRENNAN CJ: Well then, why is it not a question of fact as to which of those it applies to?

MR EMMERSON: Once one has correctly construed the phrase, then comes a question as to whether the facts fall within that. Now, here the distinction is drawn between what I might call primary facts and secondary facts. The primary facts are matters of fact. We have no quarrel with that, but the ultimate question whether the facts as properly found fall within the phrase as properly construed becomes a question of law. Now, that is not something that we sort of yet get to but in answer to your Honour's question, that is the position we reach.

I had been referring to what Justice French said about some of the principles that one has to deal with and I think I had drawn the Court's attention to the bottom of page 854 in his Honour's proposition No 4. He is just pointing out that trade expressions are not always conclusive and, indeed, we would say that trade expressions used in one particular context do not necessarily govern the meaning of words when they are used in a somewhat different context.

We would also draw attention to his Honour's proposition No 7:

If the expression is not uniformly understood in a specialised sense in the trade, it cannot be assumed that Parliament has adopted or recognised that specialised meaning. In that event, the ordinary English meaning of the expression is applied, having regard to the legislative context.

So, again, it is not sufficient to show that there is some trade usage. Where the trade usage is not absolutely uniform, then one has got to ask the question whether, in the context of construing the particular document, or in this case order, we are concerned with, you have to give the words a trade meaning.

If I could revert to our outline of argument at page 3 in paragraph 5, where we state compendiously questions of law which, in our submission, arise, whether the phrases and/or the TCOs should be given their ordinary meaning or a trade or technical meaning or some other and qualified meaning, whether there is sufficient evidence before the tribunal to give them a trade meaning, at 5.3 the effect or construction of the phrases having regard to the context in which they appear. That, of course, is something which harks back to the paragraphs to which I drew attention in the reasons for judgment of Justices Gummow and French. At 5.4, whether the facts as found as to the nature of Agfa No 8 and No 9 paper fall within the provisions of the TCOs as properly construed.

We then set out a variety of authorities which support those propositions, but I do not need to take the Court to them in detail. They support the proposition of the general rule, in the absence of evidence to the contrary, that one gives words their ordinary meaning and in determining that, one is concerned with actual usage. The proposition that the trade meaning may be too limited is also derived from there. The fact that once the basic facts are proved the question of whether they fall within the terms of the enactment, in this case the order, has support there, and we include Hepples' Case for the proposition that a taxing statute is, prima face, to be construed as taking away rights of the subject only if the words are clear.

Now, in paragraph 6 of our outline we set out matters which I was dealing with this morning. In paragraph 6.2 we attempt to deal with the extent to which one can take into account technical evidence given the difficulty which, in our respectful submission, becomes largely semantic about what one means by technical words.

In paragraph 7, subparagraphs 1 to 4, we state in summary form the various matters that we rely on for saying that one should not construe the expression "silver dye bleach reversal process" as if it were some combination of silver dye bleach process and reversal process. We note that this phrase appears in the TCO as a composite whole. It is separated from the rest of the TCO by commas. As a matter of language, it does not read, in our submission, as a conflation of two terms of part or terms with special secondary meaning, namely, "silver dye bleach process" and the "reversal process" nor, we say, should it be construed as qualifying the expression, "silver dye bleach process" with the word "reversal". We get to that by three different, if related, arguments.

First we say that, as a matter of language, "silver dye bleach reversal process" does not read as a qualification of the term of art "silver dye bleach process" by the word "reversal". Next we note that if "silver dye bleach process" is taken as a term of art, it does not require nor is there any suggestion that it even admits of any qualification. On the argument that has been put for the appellant in this case, it has a single meaning, it refers to a single proprietary process, and we would say that there is no reason at all to add the word "reversal" if what is intended is to refer to the "silver dye bleach process".

BRENNAN CJ: Dr Emmerson, if you were to say, "scoured Australian rabbit fur wide brimmed hat", you would be speaking about an Akubra perhaps.

MR EMMERSON: Yes.

BRENNAN CJ: Now, there is no reason why you should not separate "scoured Australian rabbit fur" on the one hand and "wide brimmed" on the other?

MR EMMERSON: No.

BRENNAN CJ: What is wrong with putting them together?

MR EMMERSON: In that particular context, your Honour, there is nothing wrong with that nor does our argument entail the consequence that there would be.

BRENNAN CJ: Let us assume that "scoured Australian rabbit fur" is understood in a particular way in the trade, as indicating only the kind of fur that is manufactured by Akubra, why would you not put "wide brimmed" with it?

MR EMMERSON: I think you might have a little bit more difficulty. Can I just make sure that I have understood your Honour's example? Your Honour's example is one in which the expression "scoured Australian rabbit fur" would be readily understood by members of the general public as having a clearly identifiable meaning but not a proprietary meaning. And then your Honour puts to me, in the trade, let us suppose that it has a proprietary meaning, then you have the question whether these words are used in order to give the total composite expression a proprietary meaning or a descriptive meaning.

That, in our submission, would depend on all the circumstances and first, there would, in those circumstances, in our submission, be a real question as to whether, given the ordinary meaning of the words, you were to take the draftsman of that expression as having intended to limit himself to a particular proprietary context. In our submission, it would require fairly strong evidence to lead to the conclusion that he had intended to limit the matter to a particular proprietary context, given that, on the face of it, the words seem to have a wider application.

That, we would say, is consistent again with the authorities that I have drawn attention to, that if one is putting that sort of, as it were, secondary meaning and unnatural limitation on the meaning of the words, then it has to be clear that that is the appropriate one before you can do it.

BRENNAN CJ: Does your argument then turn on this that the first three words in the composite phrase with which we are concerned should be not regarded as descriptive of Ilfochrome but simply descriptive of a process.

MR EMMERSON: It is a part of a description of a process and the whole description is the phrase between the two commas, yes.

BRENNAN CJ: That was not my question to you. What I am asking is, assuming that it is wrong to regard the first three words as describing a proprietary brand - - -

MR EMMERSON: Yes.

BRENNAN CJ: - - - is there anything wrong in using those first three words to describe a process which, in fact, is the process adopted by the manufacturers of that proprietary brand?

MR EMMERSON: No, that could be so and to take your Honour's example with the Akubra. Let it be assumed an Akubra hat is made of scoured Australian rabbit fur, then the composite phrase would apply to Akubra, but it would not be limited to Akubra.

BRENNAN CJ: And is that the burden of your argument here?

MR EMMERSON: Yes.

BRENNAN CJ: That it applies to Ilfochrome but it also applies to Agfa?

MR EMMERSON: It also applies to the Agfa paper in dispute and, if it comes to that, to the Agfa CR212 paper, which was the paper for which the TCO was made in the first place.

BRENNAN CJ: Am I wrong then in reading the tribunal's determination that the first three words are not descriptive of your paper?

MR EMMERSON: No, what the tribunal is doing is not treating the first three words as being descriptive but is treating them as a technical name. So the tribunal approaches the thing as a question of naming rather than as description.

BRENNAN CJ: If you are wrong in that, do you have an argument? In other words, assuming that the first three words are used by the tribunal as descriptive of a process, which the tribunal then found to be a process which is adopted by the manufacturers of Ilfochrome but not adopted by the manufacturers of your paper.

MR EMMERSON: I think I need to explore one possible distinction, if your Honour will bear with me. Your Honour, referred to the words being descriptive of a process. Now, something can be descriptive of a process but also be descriptive of other processes. Now, his Honour correctly concluded that the process used by Agfa is not the same as the Ilfochrome process.

So if his Honour says - and we do not accept that he does, but for the sake of argument, explore this - "these words are descriptive of Ilfochrome", then it does not of course follow from that that they are not also descriptive of Agfa, notwithstanding that the Ilfochrome process and the Agfa process are not the same.

BRENNAN CJ: That is right.

MR EMMERSON: It is because his Honour goes the extra step and treats the words "silver dye bleach process" as having a special and more limited meaning that - - -

BRENNAN CJ: Being?

MR EMMERSON: Being limited to Ilfochrome.

GAUDRON J: Or to the process.

BRENNAN CJ: The process, yes.

MR EMMERSON: I am sorry, I am speaking compendiously: limited to the process by which Ilfochrome film is developed.

BRENNAN CJ: If that is what he found - - -

MR EMMERSON: No, he found that there was a usage that would limit it in that way, that is to say, people referring to the process by which Ilfochrome film is developed sometimes use the expression "silver dye bleach process" for that process.

BRENNAN CJ: So that those words as descriptive of a process were not descriptive of the Agfa paper?

MR EMMERSON: No. It is that latter point that we would dispute.

BRENNAN CJ: I am sorry. If his Honour found that the process used by Ilfochrome was the process, and that means the only process, which was understood by the first three words in the phrase, then that carries with it a finding that those words are not descriptive of the process of Agfa.

MR EMMERSON: With respect, no, your Honour. It depends how one reaches that position. If you treat the composite expression "silver dye bleach process" as being in substance the name as distinct from a description - - -

BRENNAN CJ: Forget the name.

MR EMMERSON: Yes.

BRENNAN CJ: Call it X, if you like, instead of Ilfochrome. If a true interpretation of what his Honour said is that that process "silver dye bleach process" is descriptive and descriptive only of what is the process of the X brand, that means it is not descriptive of other processes, including the Agfa brand.

MR EMMERSON: Yes.

BRENNAN CJ: Now, if that is what he has found, that is a finding of fact, is it not?

MR EMMERSON: First, we would say with the greatest of respect it is not what he found and, second, it is a finding of law because it falls within the rule that it is dealing with the question of whether, on the facts found, they fall within these particular words. That would be a question of law. Indeed, that is one of the - - -

BRENNAN CJ: That is a question of law once you have discovered what the words mean.

MR EMMERSON: Yes.

BRENNAN CJ: My question to you is postulated on the hypothesis that on the evidence his Honour found that the words mean only that process adopted in respect of the papers of brand X.

MR EMMERSON: I have a feeling that I am not fully understanding what your Honour is putting to me. One issue here is a matter of usage. His Honour finds a usage of the phrase "silver dye bleach process" to apply it to Ilfochrome. We say that his Honour was wrong in construing the composite phrase with which we are concerned by reference to that usage. Suppose that we are correct, at least so far, then we have the question: looking at the expression "silver dye bleach reversal process" as a whole, does that expression properly construed have a meaning which at least comprehends the Agfa process?

We say it does. His Honour did not, in fact, deal with that because his Honour adopted the construction which, for the sake of the present argument, we are treating as being a wrong construction. So, his Honour did not get to the point of dealing with what happens when you take the ordinary meaning of the words "silver dye bleach reversal process", or the ordinary meaning of those individual words, you construe the phrase as a whole and then you ask whether it applies. His Honour just did not get to that.

Could I now go to the other phrase which is the subject of dispute: that is "with the image dyes incorporated in the emulsion layers coated on a resin-coated paper base".

I should perhaps, just for completeness, draw to the Court's attention an apparently typographical error which appears in his Honour Mr Justice Jenkinson's reasons at page 791. The last word in the whole of the TCOs that his Honour quotes, is "resin coated paper goods". That should in fact read "resin coated paper base" and, indeed, the word "goods" in that particular context does not seem to have any particularly sensible meaning. One can check that by looking at the actual terms of the TCOs, which are set out in the early pages of volume 1. Nothing I think turns on this, but as there is an incorrect quotation of the crucial TCO it is probably worthwhile getting it right.

Now, the next expression then with which we are concerned is:

having the image dyes incorporated in the emulsion layers coated on the resin coated paper base.

Now the problem that arises here is as to the construction of that expression and whether the image dyes that are referred to in it can include the colour couplers that are used in the Agfa product.

Now, we say that they can and, shortly stated, we say that the purpose of this expression is to distinguish the location of the image dyes and to distinguish the paper which is the subject of the TCO from other papers and those other papers include those such as Kodachrome in which dye is introduced from the outside during the course of development and it also excludes those cases in which the dye migrates during the process of development from somewhere else into the emulsion layers. That, in our submission, is the natural meaning of the expression. We note in this context that the definite article is used with the image dyes.

The draftsman appears to assume that there are image dyes, but the question is: whereabouts are they? The error into which we say his Honour Justice Jenkinson fell in all of this was that he paid too much attention to the circumstances in which one might use the expression "image dyes" in the context of developed paper. Plainly enough, in the context of developed paper one might use the expression "the image dyes" somewhat loosely as meaning the pigment which you actually see in the image.

But we would say that that is wrong because, ex hypothesi, what we are looking at here in the TCO is paper and the question of whether it is dutiable at the time when it is imported. At the time when it is imported it is, of course, not being exposed, it is not being developed, there is no image and, of course, you cannot tell until all these steps have taken place what the image will eventually be and precisely what dyes will lead to the ultimate pigmentation of that image.

If one starts by saying we have got to give this expression a sensible meaning in the context of paper which has not yet been developed then we say it is natural to look to a meaning of image dyes as being those that contribute to and are essential to the ultimate image rather than to treat the image as if it were there already and ask how it is pigmented.

TOOHEY J: You may well be right in that, Dr Emmerson, but if you are right, does it follow that there has been an error of law on the part of the tribunal in coming to a different conclusion?

MR EMMERSON: Yes, there has, your Honour, and the way that it arises is, first, the tribunal's primary approach was to treat the expression "image dyes" as having a particular technical meaning. Now, the question of whether it has a particular technical meaning is a question of law. So, we say that there was an error of law there. Then the tribunal goes on in the alternative to construe the phrase in context and we say that there is an error of law in that exercise of construction.

So, this particular case falls within propositions 4 and 5 set out on page 825 in the reasons for judgment of his Honour Justice Gummow, the question of:

ordinary meaning or some special meaning.....is a question of law -

and:

The effect or construction of the term once its meaning or interpretation is established is a matter of law.

It is also useful, in this context, to look at page 826 and proposition No 7 where his Honour says, five lines from the bottom:

the word will take its colour from the context and that will require construction of the law, a lawyer's task.

In our submission, this does involve an error of law at both stages.

TOOHEY J: I am not clear how it would arise on the basis of the alternative approach taken by the tribunal which is to be found at page 806, about line 5, where Justice Jenkinson says:

But if I were wrong in finding that usage, I would yet conclude that the meaning I have wrongly thought that usage supplies is supplied by the context.

MR EMMERSON: By the context, that is - - -

TOOHEY J: Yes, but what converts at exercise of interpretation in this sense - that is, the meaning of two words "image dyes" - into a question of construction?

MR EMMERSON: The context with which we are concerned here is the total context of the TCO. You have to ask what, in the context of that whole provision, does the last section of it mean and when it is speaking of image dyes, is it speaking of something which is developed, which is one of the meanings that his Honour refers to and, indeed, the one he prefers, set out at the bottom of 805:

those substances which on the surface of the developed paper, having been combined.....enable the human eye to see colours.

So, his Honour is there using the expression in the sense of the actual pigments in the finely formed image.

TOOHEY J: But he is not, at that point, speaking of the technical usage of the expression?

MR EMMERSON: Yes, he is, but I have to refer back to that in order to answer your Honour's question because your Honour's question then deals with the second way he gets it and his Honour is still talking about the same meaning because he says at 806, lines 5 to 7:

But if I were wrong in finding that usage, I would yet conclude that the meaning I have wrongly thought that usage supplies is supplied by the context.

So, that is the meaning that his Honour is there considering.

TOOHEY J: Well, it seems to obliterate any real distinction between interpretation and construction, does it not? If you say, well, the meaning of the words is a matter of interpretation, but the overall meaning to be attached to the expression is a question of construction. I mean, it may be; certainly in some cases, but if we are concerned only with the meaning of a particular word or particular two words, I am still not clear as to why that becomes a question of construction.

MR EMMERSON: It is a question of construction and a question of law whether, given that an expression may in some circumstances have a technical meaning, you then ask is that a technical meaning which is used in this particular case.

TOOHEY J: No, but we have put that to one side. We are assuming, for the purposes of the exercise that his Honour was wrong, as his Honour admitted that possibility by going on to consider the alternative. We are now in the area of the alternative.

MR EMMERSON: We are now in the area of alternative, but once we get into the area of alternative we are certainly concerned, in our respectful submission, with the construction of the phrase as a whole because we are considering here the meaning in the context and it is that that Justice Gummow describes as a "lawyer's task" at page 826 line 14:

and because whilst the word may have but one ordinary meaning that is imprecise, the word will take its colour from the context and that will require construction of the law, a lawyer's task.

Now, we say it is this matter of construction which gives rise to the question of law that here arises.

Could I, while I am dealing with the way that his Honour dealt with this part of the TCO, perhaps round out what we would say about the first way that his Honour put it and we get that at page 805 beginning at line 25. Perhaps in order to put this clearly, I should take the Court to the immediately preceding passage. At line 5 on page 804 his Honour dealt with a submission which I had put to him. He says that I:

submitted that usage had not given to the expression "image dyes" an accepted meaning. The ordinary meaning of that collocation of words was discoverable, according to the submission, by understanding the word "image" as an identification of those characteristics of the surface of the paper, when the photographic development process had been completed, which enabled the human eye to see the colour photograph when light fell upon it - a step in the argument which I accept -

Pausing there, that is what "image" is talking about. But his Honour then goes on to deal with what was put to him about dyes. He said:

by understanding the word "dyes" as those substances which during the process are involved in, and are essential to, the chemical reactions which contribute to form those characteristics of the surface of the paper which enable that eye to see the colours.

Then his Honour quotes a passage from one of the expert witnesses which we say is of assistance. It is set out beginning at line 19 on page 804 and it deals with development and image and then, six lines from the bottom, says:

The dyes are never incorporated in the emulsion layer before development (processing) in exactly the same way as in the final print. If they were, there would be not need to carry out any development process. Without the development process, no image would be formed.

In summary, it is of the very nature of the process of developing a colour print of a photograph that the final image is made up of dyes which are either in the paper before development or are introduced to the paper during development. No dyes are introduced into the Agfa type 8 and 9 papers during development. The developing agent brings no dye or colour -

It is the same developing agent for all three colour layers.

The dyes that form that final image are already in the paper and undergo reactions during processing to take on their final form.

He then goes on to deal with the other different types of photographic paper which would not satisfy this description. Then at line 25 on 805 he says:

It is true that the formation of the colour which the eye sees on the developed paper is "achieved by a combination of differing hue (colour), chroma (intensity), saturation (density) and arrangement of the dyes relative to each other". But it is, as I find, also true that there is a usage among those concerned with the technology of colour photography to refer to those substances which on the surface of the developed paper, having been combined (in the sense of the that word in the passage quoted), enable the human eye to see colours.

That usage that his Honour is concerned with gives rise to the following comments. His Honour is not there saying that this is the only meaning regardless of context which the expression "the image dyes" can take.

He describes it as "a usage" and that is an expression which Justice Gummow takes up in the Full Court. Secondly, his Honour is there referring to what happens in the case of developed paper and, in our submission, it is of no assistance to take "a usage" which occurs in the context of developed paper and to jump from that to the conclusion that it must be the only usage when one is referring to undeveloped paper.

So for that, in our submission, we would say that if his Honour is seeking to say here that it follows from the propositions that he sets out that, in this particular context, the words "the image dyes" must be used in the sense in which they are used in the particular usage that he refers to, then we would say that that is simply wrong and it ignores the propositions concerned with construction to which I have drawn attention. In particular, could I remind the Court of proposition No (ix) in the reasons of Justice Gummow at the bottom of page 826:

the expression must be uniformly understood in the specialised sense in the relevant trade and have been so understood when the law in question was enacted.

Now, his Honour makes no finding that the phrase was uniformly understood in the sense in which he sets it out. He simply says it is "a usage". To the same effect is Justice French's proposition No 7 set out at page 855:

If the expression is not uniformly understood in a specialised sense in the trade, it cannot be assumed that Parliament has adopted or recognised that specialised meaning. In that event, the ordinary English meaning of the expression is applied, having regard to the legislative context.

So the first approach that was taken by his Honour Justice Jenkinson sitting as the tribunal is, in our respect, wrong. But then when he deals with context, his Honour's reasoning goes as follows. He says:

Those witnesses who denied the existence of such a usage reasoned, from the premise that the final image owed its colour to several chemical reactions, to a conclusion that any substance involved in, and essential to, such a chemical reaction was within the meaning of the expression "image dyes".

He then goes on to say, "Why not use the expression `colour forming agents' or `colour forming materials'?" This is at page 806, at lines 15 to 18. However, with respect to his Honour it would be always possible and particularly at this stage of the present proceedings to devise a better form of words for the TCO that is in question. The issue is not whether one can devise a better form of words for it, but what the form of words actually means. When you do that then the context is, in our submission, of very considerable weight and the context is that ex hypothesi you are talking about undeveloped paper. Now, his Honour, at lines 22 to 24 says:

The ordinary meaning of the word which the context here suggests is the colouring matter in, or of, the image.

Now, in our submission, that cannot be right. You do not know what the image is going to be. You do not know what colour it is going to be. None of that will be clear until the paper has been exposed and developed. So, it is wrong to treat the paper as if there was already an image and then you ask what are the pigments of the image. It is correct, in our submission, to look back at the overall purpose of this TCO and the actual language that it uses and to say with the image dyes incorporated in the emulsion layers that there must be something that is there in the emulsion layers and that must be there at the time of importation. Since there is no image that exists at that stage you are talking about an image that will exist at some time in the future and you are looking prospectively at the use to which this paper will be placed rather than treated as being fully exposed and developed. So, we say that when you approach the matter as a matter of construction, having regard to the context, then you find that the approach taken by his Honour Justice Jenkinson was wrong.

GAUDRON J: His Honour's approach however does give weight to the definite article which yours does not seem to do.

MR EMMERSON: We would say that we do give weight to the definite article; we rather rely on the definite article although perhaps for a slightly different proposition. We rely on the definite article to support our view that the draftsmen treated it as clear that there were image dyes, but was asking whether they migrate from somewhere else or whether they are there in the emulsion. So we would say that we definitely do give weight to the definite article.

GAUDRON J: But your dyes do not come about until a chemical process occurs, does it? There is something in the emulsion layer, but it does not become a dye until - - -

MR EMMERSON: Well, it does not become a pigment until it is activated, but we say that a dye is something which ultimately leads to colouring. We would not accept that the word "dye" is interchangeable with the word "pigment".

GAUDRON J: On its own or you say in combination with something else?

MR EMMERSON: We say it is not ordinarily the same as pigment, although some pigments could no doubt in a different context be used as dyes, but a dye is something which leads to the colouring - - -

GAUDRON J: On its own, leads by itself, or when engaged with some other chemical or involved in some particular chemical process?

MR EMMERSON: Sometimes when engaged with other chemicals, for instance, if you are dying fabric you may well want to put in some fixing agent to make sure that the dye takes to the fabric. So that there are various chemical processes which can take place in the action of dying, though the dye differentiates what will ultimately become one particular pigment in the eventual product from another, as do the colour couplers here, because it is the colour couplers which differentiate and determine what ultimate pigmentation turns up in the developed paper.

The way in which this was dealt with by Justice Gummow is set out at a passage beginning at page 833. He says, beginning at line 12:

One meaning for "dye" given in the 2nd ed of the "Oxford English Dictionary", Vol 5, p 4, is:

"colour or hue produced by, or as by, dyeing; tinge, hue."

BRENNAN CJ: We have been through all this already, Dr Emmerson. We were taken to this, this morning, this passage.

MR EMMERSON: I am sorry, your Honour, I had not recollected that I had specifically - - -

BRENNAN CJ: Not that you had, but we had been taken to it by Dr Buchanan.

MR EMMERSON: Yes, if your Honour pleases. Then, we would direct attention to the passage at line 20:

a material or matter used for dyeing; esp colouring matter in solution."

His Honour goes on to deal with chromogenic papers. His Honour deals, at 835 with the fact that none of these dyestuffs are incorporated in the eventual developed paper in exactly the same way that they are in the paper before development. He deals with the submission that we are concerned here, with location and then, down at the bottom of page 836 and the top of 837, he deals with the reasoning of the tribunal, "a usage" and at the bottom of page 837, he says:

Taken as a whole, the terms of the TCOs are indicative of the processes by which the paper is to be developed, and the "image dyes" are identified or limited by reference to their incorporation in the emulsion layers which are coated upon the resin coated paper.

In our submission that is a correct statement of the position.

To similar effect, and again I need not take the Court to it in detail, is Justice French at 861 to 862. Could I now just summarise what we say about the historical context in which these TCOs came into existence. That is set out at paragraph 8 at page 5 of our outline of argument. We had recited the factual background in the first three pages of this outline. I need not take the Court to that in detail but it dealt with the circumstances in which the TCO was made.

BRENNAN CJ: At the moment, the question of its relevance escapes us, Dr Emmerson.

MR EMMERSON: Well, we say that its relevance here in this history is that it helps to tell you - - -

BRENNAN CJ: We can see what it tells us. We know what its background is from reading it.

MR EMMERSON: Yes.

BRENNAN CJ: What is escaping us is the relevance of that background to any question we have to determine.

MR EMMERSON: The relevance of that background is that it is of assistance in the construction of the TCOs that the Court has before it.

BRENNAN CJ: Not the meaning of a particular word or phrase but the construction of the whole; the method by which one comes to the meaning.

MR EMMERSON: Yes.

BRENNAN CJ: How does it do that?

MR EMMERSON: Because it supports the proposition that it was always intended that these particular TCOs would cover at least the Agfa CR312 paper and that is also a chromogenic paper and the Court has seen the way in which it works.

BRENNAN CJ: Well, assuming it was so intended, what does it say about the method of construction?

MR EMMERSON: It says about the method of construction that it is appropriate to consider the purpose of the particular passage with which we are concerned as an aid to construction and if there is uncertainty about what particular phrases in it mean and if on one view it would carry out the purpose and on another view it would not, then we say that this is a reason which would tend to lead a court to conclude that the construction, which would actually satisfy that purpose, is the preferred construction.

BRENNAN CJ: We hear what you say. I do not think you need spend very long on it.

MR EMMERSON: If the Court pleases. We also submit - and I shall again submit this briefly - that the removal of the words "for the production of positive to positive colour prints" is of significance. Again, one looks at the history of these particular TCOs. One sees that there was present at one stage a phrase which would have the effect for which our learned friends contend, namely, it would exclude the present papers in dispute. However, that phrase was removed. We say that it is reasonable to infer that it was removed with the intention of making a change in the meaning of the TCO, and the meaning, plainly enough, is the removal of that limitation.

If the Court pleases, we have set out other references to authorities and a more detailed statement of the factual background in the outline of argument which has been handed to the Court. If there are no further questions, those are the submissions for the respondent.

BRENNAN CJ: Thank you, Dr Emmerson. Dr Buchanan.

MR BUCHANAN: Just a few short points, your Honour. My learned friend submitted that the Full Court was in fact laying down not a general rule at all, but simply identifying an error in the construction by the tribunal of this particular phrase, that is, that to use a trade meaning a part of this composite phrase was just that, an error in respect of this composite phrase and not necessarily an error in respect of any phrase. For the reasons we gave earlier, we submit that is not so and, in fact, what the court was doing was laying down a general rule. I can add this, that none of the judges of the Full Court identified any reason at all for choosing in this case to reject the technical or trade meaning of part of the composite phrase.

So that if all they were doing was identifying an error which was peculiar to this case and to this phrase, their Honours did so without in fact advancing any reason at all. My learned friend submitted that there was a contradiction between the trade usage or meaning given to the phrase "silver dye bleach process" on the one hand and "silver dye bleach reversal process" on the other, because witnesses said that the first was descriptive of an Ilfochrome process and the second was not.

One should put that in context. There were some witnesses - all except Flynn agreed that the first part of the phrase, the first three words, did not describe Agfa paper. But when it came to the witnesses dealing with reversal process by itself, some of them said that was Ilfochrome and apposite to Ilfochrome because, in going from positive again back to positive, there was a reversal of image. Other witnesses, and largely those of the respondent, gave their version as being one which did not fit Ilfochrome but did fit Agfa paper. They called the reversal for their purposes as going from the negative print or the negative film to the positive print.

So that it is not a case that the evidence established that the phrase, if one gave a technical meaning to the words "silver dye bleach" was necessarily contradictory with what remained, namely reversal process. There was a body of evidence which saw them as being compatible, and that was the body of evidence which his Honour chose.

DAWSON J: Dr Buchanan, you may be going to deal with this: do you have anything to say about the proposition that the tribunal went wrong in treating the TCO as merely, as it were, naming the Ilfochrome process as opposed to describing a process which was of more general application?

MR BUCHANAN: Yes, your Honour. What the court did and the terms in which it analysed it make it clear, is not that it was identifying or treating the evidence from the trade witnesses as being, effectively, a naming exercise, that is, "These words are shorthand for Ilfochrome", but rather that their analysis and the way in which the court treated it was, instead, using their evidence to identify a process which, in fact, was the process used in Ilfochrome photographic paper. It may be, but because it is not the way the case developed it might have described other paper as well. One is not to know, but it described a process and, in fact, an identifiable and identified user of that process was Ilfochrome, but that was the - - -

DAWSON J: And it was a process so described which excluded Agfa paper?

MR BUCHANAN: Yes, but not because it equals Ilfochrome. Rather because that process was not one which embraced the steps used in the development of Agfa paper. And there was one last thing we wanted to say and that was that my learned friend referred to, at page 826 of the appeal book, a passage from the judgement of Justice Gummow in which it seems to be suggested that it is a manner or question of law as to whether where there are several ordinary meanings, one is to be chosen. It is a difficult passage. It follows on as a qualification from a paragraph which deals with the application of a found meaning to particular facts, and we doubt that his Honour really meant, or that the passage at page 826 in paragraph 7 is to be construed as standing for the proposition that where an ordinary word construed according to ordinary meaning has several meanings and not simply not one narrow meaning, that it is a question of law which of those one is to choose.

And we say that logically it would seem that cannot be right, because if ascertaining an ordinary meaning is a question of fact, the tribunal of fact will, on this view, have no task to perform. The only case where it will ever be a question of fact will be one where there is only one meaning, and so there will be nothing for the tribunal of fact to do. We would rather say that when the courts say, as they have on several occasions, that the ascertainment of the meaning of an ordinary word is one of fact, what is involved in that - not in every case, but in many cases - will be the choosing of the appropriate meaning among shades of meaning or different meanings which the dictionary will give to an ordinary word. If the Court pleases.

BRENNAN CJ: Thank you, Mr Buchanan. The Court will consider its decision in this matter.

AT 3.53 PM THE MATTER WAS ADJOURNED