COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTY
GENERAL DIVISION
Davies J.(1)

CWDS
  Taxation - sales tax - whether paint brushes and painting equipment are
"brushes" for the purposes of Items 1 and 2 of the Sales Tax (Exemptions and
Classifications) Act  - meaning of "namely" - meaning of "ordinarily" -
principles of interpretation.
  Sales Tax (Exemptions and Classifications) Act 1935 (Cth) - Schedule 3, Item
1.
  Federal Commissioner of Taxation v. Newbound and Co Pty Limited (1952) 10
ATD 59

HRNG
SYDNEY
#DATE 16:3:1992
  Counsel for the Applicant:      Mr D.H. Bloom QC and Mr B. Sullivan
  Solicitor for the Applicant:    Blake Dawson Waldron
  Counsel for the Respondent:     Mr A.H. Slater
  Solicitor for the Respondent:   Australian Government Solicitor

ORDER
  Exhibit OC1 and Exhibit OC6 fall within Item 1 of the Third Schedule to the
Sales Tax (Exemptions and Classifications) Act 1935 (Cth).
  Exhibits OC2, OC3, OC4, OC5, OC7, OC8, OC9, OC10 and OC11
do not fall within Item 1 or within Item 2 of the Third Schedule to the Sales
Tax (Exemptions and Classifications) Act 1935 (Cth).
  Liberty is reserved to apply with respect to costs and for
any further order as may seem meet.
  Counsel bring in within 14 days short minutes of the orders sought.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
  These proceedings were commenced in the High Court of Australia but were
remitted to this Court by order of his Honour, Mr Justice M.H. McHugh, made on
21 March 1991.  The issue which arises between the plaintiff, O.R. Cormack Pty
Limited, which is a manufacturer of painters' equipment, and the defendant,
the Commissioner of Taxation of the Commonwealth of Australia, is the
classification for sales tax purposes of certain goods manufactured by the
plaintiff.
2.  The plaintiff alleges that the goods fall within Items 1 and 2 of the
Third Schedule to the Sales Tax (Exemptions and Classifications) Act 1935
(Cth).  Item 1 reads inter alia:-
    "1.   Goods (not being goods covered by an item in the Second
          Schedule, goods of a kind used exclusively or principally in
          sport or games or goods designed for use exclusively or
          principally in, or in connection with, swimming pools or spa
          baths) of a kind ordinarily used for household purposes,
          namely:-
            (a) furniture, but not including pictures, picture frames,
                statuary, sculptures, plaques, medallions, medals,
                inlays, mosaics, tapestries, cameos or representations
                of mottoes, proverbs or verses;
            (b) crockery and articles of a material other than
                earthenware used for purposes similar to the purposes
                for which crockery is used;
           (ba) jardinieres and vases;
            (c) glassware and articles that are made of a material other
                than glass and are used for purposes similar to the
                purposes for which glassware is used;
            (d) cutlery and cutlery sharpeners;
            (e) refrigerators, ice chests and other appliances used for
                the cooling or freezing of food;
            (f) washing machines, wringers and other appliances used for
                or in connexion with laundering;
            (g) vacuum cleaners, carpet sweepers, floor polishers and
                other appliances for use for cleaning purposes;
           (ga) space heaters, radiators and other appliances for use
                for room heating;
            (h) grillers, stoves, ranges, ovens, cookers, toasters,
                mixing machines, immersion heaters, hot water jugs and
                kettles, percolators and other appliances for use for
                culinary purposes;
           (ha) electric fans;
           (hb) air conditioners of a kind used exclusively, or primarily and
                principally, for air cooling;
            (i) kitchen utensils and hardware;
            (j) brooms, mops, dusters, brushes, buckets, dippers and
                basins;
           (ja) incinerators, compost bins, garbage cans and stands and
                holders for garbage sacks;
                . . . " (the emphasis is mine).
Item 2 specifies "Parts, fittings and accessories for goods covered by item 1
...".
3.  The plaintiff manufactures painting equipment under the trade name "Rota
Cota".  The goods with which we are concerned are principally goods used for
painting.  They are paint brushes of various sizes and quality ranging from
those described as tradesmen's or professional quality to the Aussie brush
described as "an excellent handy brush for odd jobs around the house."  Other
goods consist of paint rollers or applicators, roller covers, trays for use
with rollers and associated equipment such as long handles to assist painting
with rollers on a ceiling.  Other goods comprise stiff wire brushes used for
the preparation of surfaces before painting.  One brush, Exhibit OC1, has been
conceded by the Commissioner to be a pastry or kitchenware brush and therefore
to be within Item 1.  The Commissioner has conceded that Exhibit OC6, which is
a four-knot duster, is within Item 1 being commonly used for dusting venetian
blinds.  But the other equipment would be used for painting purposes.
4.  The case put by Mr D.H. Bloom QC, with whom Mr B. Sullivan appeared for
O.R. Cormack Pty Limited, was that the brushes were goods of a kind which were
ordinarily to be found in households and used for the purposes of the
household and that the paint rollers and associated equipment came within the
term "brushes" for they were contemporary equipment which served the same
purpose as, in the past, paint brushes have done.
5.  Much turns on the effect to be given to the word "namely". It is not in
dispute that the term does not mean "including", that is to say as an adverb
of connotation so that the specific paragraphs which follow merely illustrate
the sense in which the opening words of the item are to be read by giving
examples thereof.  The term "namely" is used in the Schedules to the Sales Tax
(Exemptions and Classifications) Act, in contrast to the terms "including" and
"not including".  See Deputy Commissioner of Taxation v. Polaroid Australia
Pty Limited (1971) 46 ALJR 32 at 33-34.
6.  The ordinary meaning of "namely" is:  "that is to say, videlicet, viz., to
wit."   See, e.g., the Shorter Oxford Dictionary and the Macquarie Dictionary.
The adverb is used to specify in detail goods which, having the general
character earlier described, fall within the item.  Thus, the impression
gained from the item as a whole is that the legislature has specified in
detail the goods which are to fall within the classification provided that
they are "of a kind ordinarily used for household purposes".
7.  Mr Bloom submitted, however, that goods falling within one of the
paragraphs of Item 1 were exempted by the item whether or not they also met
the opening description "of a kind ordinarily used for household purposes".
Mr Bloom relied, by way of example, on the view adopted by the majority of the
Justices in Federal Commissioner of Taxation v. Newbound and Co Pty Limited
(1952) 10 ATD 59, a view which was applied by Gummow J. in Hygenic Lily Ltd v.
Deputy Federal Commissioner of Taxation (1987) 87 ATC 4327.    In Newbound's
case, Item 90D in the First Schedule to the Sales Tax (Exemptions and
Classifications) Act commenced with the words "Household fittings and sanitary
ware ..." followed by a specification of goods in four categories, with the
term "pedestal lavatory basins" appearing in paragraph (1).  Williams,
Fullagar and Webb JJ.  held that a "wash fountain", designed for use in
factories, hospitals and the like so as to enable a number of persons employed
therein to wash at the same time, was within the classification as it was a
pedestal lavatory basin.  At p 62, Fullagar J. said:-
    "The collocation of general and specific descriptions is of an
    unsatisfactory character and such as is likely to lead to
    difficulty.  But the word which connects the general description,
    `household fittings', with the series of specified articles is the
    word `namely.'  Prima facie therefore, every one of the specified
    articles is to be regarded as falling within the generic description
    of household fittings.  Prima facie, any article which falls within
    one of the specific descriptions is an article which falls within
    the generic description.  Prima facie, it must be right to regard
    specific descriptions as limiting the generic description, and it
    must be wrong to regard the generic description as limiting the
    specific descriptions."
On the other hand, Dixon C.J., with whom McTiernan J. was in the minority,
said at p 60:-
    "I take it to be evident that this is not a `household fitting', and
    yet it seems reasonably certain that the pedestal lavatory basin to
    which the words refer is the ordinary household fitting which would
    fall under that compound description.  No doubt, the words
    `household fittings' are descriptive of the character of the things
    that follow and do not require that the sale of the article shall be
    to a person who intends to use it for household purposes.  It means
    rather to describe the general character if the things listed,
    independently of the actual use intended in any particular instance.
    It is also true that if a thing clearly came within any of the
    descriptions in the list, the fact that it was placed under the
    general title of `household fittings' ought not to be used to
    restrict the primary meaning of the description.  But in the case of
    terms like `pedestal lavatory basin,' `baths,' `wash troughs,'
    `draining boards' and the like, the introductory expression
    `household fittings' shows in what context words, which are possibly
    capable of various applications, are used and gives them a definite
    application.  It was not, for example, intended to include a wash
    trough in a wool scour, or a draining board in a dye works."
For my own part, I prefer the approach taken by Dixon C.J. and believe that it
expresses the correct approach to classifications of this type. The decision
does not, of course, bind me in this case for an entirely different item was
under consideration and the words were different.
8.  Item 1 commences by expressing a general description of the class or genus
of goods to which the item applies.  That class or genus is "Goods ... of a
kind ordinarily used for household purposes".  The class is somewhat
imprecise, as I shall later discuss, but the description conveys a readily
understood concept.  With respect to most goods, it would not be difficult to
decide as a matter of fact whether they fall within or without the
description.  Though the following paragraphs (a) to (p) are not comprehensive
of household goods, it is noticeable that all the descriptions of goods in the
paragraphs readily bring to mind goods which are ordinarily used for household
purposes. They impose no strain on the ordinary meaning of that genus.
9.  Thus, the description of the genus, when read together with each
description in the individual paragraphs assists in the identification of the
goods to which the item applies.  As Dixon C.J. said in Newbound's case, in
the passage cited above, "the introductory expression ... shows in what
context words, which are possibly capable of various applications, are used
and gives them a definite application."  So to read an item such as Item 1
gives appropriate force and effect to all the words used, for the words are
used in combination, as the legislature intended.
10.  Because the words are intended to be read together, it can be helpful to
combine them when describing the category which the goods must satisfy.  Thus,
in the present case, it is helpful to ask whether the goods are "brushes of a
kind ordinarily used for household purposes" rather than to ask separately
whether the goods are "brushes" and, if so, whether they are "goods of a kind
ordinarily used for household purposes".  The opening description of the genus
does and is intended to throw light upon the nature of the goods which are
individually described.
11.  Mr Bloom next submitted that all the goods in dispute were, within the
ordinary meaning of the words, goods "of a kind ordinarily used for household
purposes".  He submitted that the term "household purposes" was wide enough to
comprehend activities carried on in and about the household.  Painting the
house or household equipment is such an activity.  It is common for households
to possess a paint brush or brushes, including a wire brush.  And whether a
particular household might possess a handy Aussie brush or a professional
quality brush would seem to depend not so much on the nature of the brush but
on the influence which the quality and the cost of the brush had for the
householder.  Mr Bloom submitted that all the plaintiff's goods were
"ordinarily" used for household purposes even though they or some of them may
also or even more commonly be used by tradesmen in the course of their trade.
12.  The adverb "ordinarily" does not have a precise denotation. It requires a
use of the goods which lies between "primarily or principally" on the one hand
and mere "use by" on the other.  The adverb conveys the meaning of "generally"
or "customarily" or "usually". Sometimes the term "commonly" is used as an
analogue, but only, I think in the same way that the adjective "common" is
used in the term "common parlance" as referring to customary or usual speech.
In Levene v. Commissioner of Inland Revenue (1928) A 217 at 222-5, Viscount
Cave L.C. said that the terms "residence" and "ordinary residence" referred to
the place of "settled or usual abode".  The words "ordinarily used" likewise
seem to refer to settled or usual use.  But I would accept that the adverb
must be applied in relation to the goods described and may have a somewhat
different application with respect to some goods than with respect to others.
In each case, the task is merely to determine as a matter of fact whether
goods in issue fall within the description used by Item 1.
13.  The expression "brushes of a kind ordinarily used for household purposes"
does not immediately bring to mind paint brushes. Therefore, it is significant
that the many individual paragraphs in Item 1 do not include a category for
tools such as gardening, carpentry, painting, plumbing tools and the like.
Most households would possess and use tools to some extent.
14.  Tools may have been omitted because the legislature recognised the
difficulty that there would be in deciding what tools were ordinarily used for
household purposes.  That description is not well suited to distinguishing
between tools which may be used both for trade and for household purposes.
Items such as a hammer or an axe may be used as readily in a household or in
trade or in industry or on a farm.  No doubt some tools are not trade quality.
But many good quality tools have no characteristic which particularly
distinguishes them for trade or household purposes.  Indeed, the evidence in
the present case does not provide any factor which clearly differentiates for
the purposes of Item 1 between one paint brush and another.  Evidence as to
what may be sold by Big W or what BBC Hardware sells to the "do-it-yourself"
trade is hardly sufficient.
15.  Mr O.R. Cormack gave evidence as to which of the goods were suitable for
use by professional painters.  However, although it may be difficult to
classify within the expression "goods of a kind ordinarily used for household
purposes" goods which are usually used in and have been designed for use in
trade, such goods may often be used for household purposes.  Thus, all the
goods with which we are concerned would be possessed by many households.  Many
households would use and possess best quality paint brushes.  And, likewise,
the use of the cheaper brushes, such as the Aussie brush, would not be
confined to households.  The smaller, cheaper brushes could be used for many
purposes, and though not manufactured for use by the painting trade, would
have many applications in business and trade concerns.
16.  It is usual for households to possess and use tools for gardening,
carpentry, plumbing, painting or like purposes.  The fact that such goods may
be ordinarily kept in a garage or shed rather than in a house itself would not
preclude them from being household goods. The concept of a household
encompasses the ordinary household environs. But these items are not mentioned
in Item 1, although so many other items are specified in detail, eg, "cutlery
and cutlery sharpeners" and "incinerators, compost bins, garbage cans".  It
seems to me that the failure to specify "tools" shows that Parliament intended
that generally they not be included within the Item.  Tools form such a
unified category that one would expect that, if Parliament had intended to
comprehend them, it would have said so.  There is no paragraph which brings
tools to mind.
17.  Another factor which points in the same direction is that the Sales Tax
(Exemptions and Classifications) Act 1954 (Cth), which introduced the Third
Schedule into the principal Act and in which Item 1 was similar to the present
item, also introduced Item 105 into the First Schedule which read, inter
alia:-
      "105.-(1)  Hand tools of the kinds used for rial purposes,
                 including power-driven but not including -
                 (a)   tools of the kinds ordinarily attached to
                       benches, stands or fixtures;
                       ...
                 (c)   goods covered by an item in any other Schedule to
                       this Act
            (2)  Hand tools of the kinds used for gardening, but not
                 including power-driven tools
            ...
            (4)  Parts and accessories for goods covered by sub-item
                 (1), (2) or (3) of this item."
The reference to hand tools in Item 105 and the complete absence of a
reference to them in Item 1 seems to show that Parliament intended that in
general tools would not fall within Item 1 of the Third Schedule.
18.  Tools form a clearly identifiable class of goods possessed by households.
Because no such category is expressed, it seems to me that the specific
descriptions in the separate paragraphs in Item 1 should be interpreted in
that context.
19.  Therefore, while I would not read a term such as "brushes" in para.(j) of
Item 1 restrictively, I would not read it as referring to tools such as paint
brushes.  In my opinion, the term combined with the opening words of Item 1
can be given a satisfactory and ordinary meaning in common parlance if one
excludes from its context paint brushes. Indeed, paint brushes and wire
brushes would be the last, or close to the last types of brush which one would
contemplate for inclusion in the description.
20.  This reading is supported by to the collocation of the words used.  The
words are:
    "Goods ... of a kind ordinarily used for household purposes,
    namely:-
    ...
    (j)   brooms, mops, dusters, brushes, buckets, dippers and basins".
It seems to me that a person reading the words and giving reasonable effect to
them all would not call to mind paint brushes or wire brushes. That is not to
say, however, that I would accept the submission of Mr A.H. Slater, counsel
for the Commissioner of Taxation, that para (j) is limited to goods used for
cleaning.  But in the context in which the term "brushes" is used, the term
does not comprehend paint brushes.
21.  It follows, in my opinion, that the plaintiff's brushes including wire
brushes are not within the classification.  The evidence suggests that exhibit
OC7 has many uses other than for painting, and is a brush having general use
for households.  Mr Slater submitted, by way of example, that the wire brush
which Mr Bloom QC uses on his barbecue should be classified as "gardening
equipment".  Be that as it may, I regard a wire brush as a tool and, as tools
are not specified in Item 1, it seems to me that the description "brushes" in
para (j) is not strong enough to include wire brushes.
22.  I am also of the view that the plaintiff's paint rollers are not brushes
in any sense in which that term is used.  See Wilson v. Commissioner of Stamp
Duties (NSW) (1988) 88 ATC. 4307.    I need not refer to the many authorities
which were cited.  A roller is not a brush and a paint roller is not a paint
brush.
23.  The classification of the accessories necessarily follows that of the
principal items.
24.  For these reasons, I shall declare that the pastry brush, Exhibit OC1 and
the duster brush Exhibit OC6 fall within Item 1 of the Third Schedule to the
Sales Tax (Exemptions and Classifications) Act.  I shall declare that Exhibits
OC2, OC3, OC4, OC5, OC7, OC8, OC9, OC10 and OC11 do not fall within Item 1 or
within Item 2 of the Third Schedule. I shall reserve the question of costs and
reserve liberty to the parties to apply for any further order as may seem
meet.  Counsel should bring in within 14 days short minutes of the orders
sought.