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WOOLWORTHS LTD v FC of T

Judges:
Hely J

Court:
Federal Court

Judgment date: 17 February 1999

Hely J

The applicant claims a declaration that the applicant is entitled to a sales tax credit under credit ground CR5 of Table 3 of Schedule 1 to the Sales Tax Assessment Act 1992 (``STAA'') for the sales tax borne on 2,500 foil lined chicken bags (``the chicken bags'') purchased by the applicant from CP Detmold Pty Ltd on 17 March 1998.

2. Table 3 of Schedule 1 to STAA sets out the situations in which a claimant is entitled to a credit with respect to sales tax (STAA, s 51(1)). Table 3 includes credit ground CR5. The operation of that ground is enlivened where:

  • • The claimant is the taxpayer,
  • • For an assessable dealing that is not taxable; and
  • • The claimant has borne tax on the goods before the time of the assessable (current) dealing.

    ATC 4189

3. The applicant is a retailer of consumer goods including, amongst other goods, cooked chicken and cooked chicken pieces which are sold in the delicatessen sections of its stores. To prepare the applicant's cooked chicken, fresh chickens are placed in a rack in a steam convection oven and cooked according to a pre- set cycle. The cooked chickens are placed immediately into a glass-fronted food warmer until selected by a customer for purchase. Half and quarter portions of chickens are also sold in the applicant's delicatessen. Those portions are cut from the whole cooked chicken as required by the customer. The cooked chickens or chicken pieces, when selected by the customer, are placed in a foil lined chicken bag and handed to the customer by a delicatessen assistant.

4. The applicant buys the foil lined chicken bags from a manufacturer. The manufacturer includes in its invoice to the applicant an amount equal to sales tax payable in respect of the chicken bags and subsequently remits that amount to the Commissioner of Taxation.

5. The following propositions are uncontroversial:

  • (a) When the Australian manufacturer sells the chicken bags to the applicant, there is an assessable dealing with respect to the chicken bags (STAA, s 16(1), Sch 1, Table 1, Item AD1a).
  • An assessable dealing is not a taxable dealing if an exemption applies in terms of s 16(2) of STAA. The only relevant exemption in the instant circumstances is if the chicken bags are covered by an exemption Item in terms of s 24 of STAA which, by means of the definition of exemption Item in s 5 of STAA, means an item in Schedule 1 to the Sales Tax (Exemptions and Classifications) Act 1992 (``E&C Act'').
  • The chicken bags were goods for use in the marketing or delivery of take away foodstuffs in terms of Schedule 1 to the E&C Act, Item 27(3); and therefore were not covered by that exemption item.
  • As neither that exemption item nor any other is applicable, the sale of the chicken bags to the applicant is a taxable dealing .
  • The applicant has borne tax on the chicken bags because it purchased the bags for a price that included tax (STAA s 11(3)).
  • (b) When the applicant places a cooked chicken into the chicken bag, the chicken bag becomes a container for the cooked chicken (s 5, ``container'' (a)).
  • That results in an application to own use (``AOU'') of the chicken bags by the applicant (s 5, ``application to own use'' (e)) but the AOU does not give rise to an assessable dealing with respect to the chicken bags, because none of the items in Table 1 applies so as to produce that result.
  • That has the further result that the chicken bags become Australian-used goods (s 5 ``Australian-used goods'' paragraph (a)) and thus no longer assessable goods (s 5 ``assessable goods'').
  • (c) The applicant manufactured the chickens cooked by it in a supermarket as it applied a treatment to foodstuffs as a process in preparing them for human consumption (STAA, s 5 ``manufacture'' (c)).
  • The cooked chickens thus become Australian goods and assessable goods within the definitions of those terms in s 5 of STAA.
  • (d) The applicant's retail sale of the cooked chickens gives rise to an assessable dealing with respect to the chickens under item AD2a of Table 1 of STAA.
  • (e) The assessable dealing is not a taxable dealing because the cooked chickens are covered by an exemption item, being the retail sale of food for human consumption by the manufacturer (STAA s 24, E&C Act Schedule 1, Item 68(1)(a)).

1. The applicant has borne tax on the chicken bags. It did so at a time before the sale of the cooked chickens. If the chicken bags form part of the relevant assessable dealing then the applicant will be entitled to a credit in terms of CR 5. The issue, then, is whether the assessable dealing covers the chicken bags as well as the cooked chickens. An assessable dealing means any dealing covered by Table 1. The only Item in Table 1 that was suggested to be of application in the circumstances of the present case is Item AD2a:

``retail sale by a person who manufactured the goods in the course of any business.''

Table 1 includes a Note (1) to the effect that Table 1 does not apply to a dealing with goods unless the goods are assessable goods immediately before the time of the dealing.

ATC 4190

Thus the retail sale will not be covered by Table 1 unless the goods the subject of the sale are assessable goods.

A consideration of the statutory provisions to which I have so far referred would, in my opinion, lead to the conclusion that there could not have been an assessable dealing by the applicant with respect to the chicken bag at the time of sale of a cooked chicken to a customer (even if, in a sale of goods sense, the chicken bag be regarded as part of the subject matter of the sale) because:

  • • Table 1 is an exhaustive specification of what constitutes an assessable dealing. Note (1) (and see Diagram 1) indicates that only assessable goods can be the subject of an assessable dealing. It is common ground that the chicken bags ceased to be assessable goods on their AOU by the applicant. Their subsequent sale to a customer could not, therefore, give rise to an assessable dealing.
  • • The relevant Item in Table 1 indicates that the seller should be the manufacturer of the goods the subject of the retail sale if the retail sale of those goods is to be an assessable dealing by virtue of that Item. The applicant is not the manufacturer of the chicken bags.

The only argument which counsel for the applicant put against the conclusion that the chicken bags were not part of an assessable dealing arising by virtue of a sale of a cooked chicken was that a conclusion to that effect would be inconsistent with the decision of the Court in
CCA Beverages (Sydney) Pty Ltd v FC of T 95 ATC 4864; (1995) 133 ALR 755; 97 ATC 4213; (1997) 143 ALR 212 (on appeal).

The entitlement to a credit for sales tax paid on the containers of soft drink was not directly in issue in that case (see 95 ATC at 4882; 133 ALR at 776; 97 ATC at 4217; 143 ALR at 216), and the Court was not required for the purpose of determining CCA's entitlement to the declaratory relief which it sought to determine whether CCA was entitled to a credit for sales tax paid on the container. Nonetheless, the Court considered CCA's entitlement to a credit, and came to the conclusion that the operation of CR4 was attracted so as to give rise to a credit entitlement. A declaration was made to the effect that CCA was entitled (as the Commissioner contended) to a credit for the sales tax paid on the soft drink containers. The trial judge, at 95 ATC 4883; 133 ALR 777 said:

``... in my view the circumstances of the First Sales fall within Item CR4 (`Avoiding double tax on the same goods'). The details of that ground are relevantly as follows:

`Claimant has become liable to tax on an assessable dealing... but has borne tax on the goods before the time of [that] dealing.'

It might be argued that the assessable dealing is in respect of the contents whereas the tax was borne on different goods, the containers. I do not think that the argument would prevail. Literally, contents and container are the subject of an assessable dealing or assessable dealings (AD1a and/or AD1b) found in the sale by CCA, and CCA bore tax on the First Containers before the time of that sale.''

At 95 ATC 4869; 133 ALR 760-761 the trial judge noted a submission by CCA that Table 1 of the STAA Act did not apply to the sales, insofar as they were sales of the containers, because the containers ceased to be assessable goods when CCA applied them to its own use. It is implicit in the passage which I have quoted that the trial judge did not regard this submission as leading to the result that there could not have been an assessable dealing with respect to the containers because they ceased to be assessable goods prior to the point of retail sale. But why this is so does not emerge. See also 97 ATC at 4216; 143 ALR at 215, where it is accepted that the containers ceased to be assessable goods prior to the sale to the retailer.

6. On appeal, Lehane J, with whom the other members of Court agreed, said at 97 ATC 4222; 143 ALR 222:

``In relation to the First Relevant Containers, Lindgren J held that a credit arose at the time of the First Sales under credit ground CR4, `avoiding double tax on the same goods'. There is a difficulty with that credit ground because its basis is that the claimant has become liable to tax on an assessable dealing but has borne tax on `the goods' before the time of the current dealing. In this case, the relevant assessable dealing was with the contents and the goods on which tax had been paid were the containers. CCA, in support of its argument that s 95 should be held and apply, to avoid double taxation, suggested that CR4 was

ATC 4191

inapplicable because the dealing was not with the goods on which tax had been paid. I see no reason, however, to dissent from his Honour's conclusion that:

`Literally, contents and container are the subject of an assessable dealing or assessable dealings... and CCA bore tax on the First Containers before the time of that sale.'

The Commissioner did not seek to disturb that conclusion.''

7. The observations which I have quoted, if applied to CR5 would stand in the way of the construction of CR5 for which the respondent here contends, and which I would otherwise accept. It was not submitted that there is any material distinction between CR4 and CR5 so far as the application of these observations is concerned.

8. The applicant submits that I am bound to find that the assessable dealing covers the chicken bags as well as the cooked chickens because CCA so decides. The respondent submits that the observations which I have quoted are obiter, uncritical in character, unsupported by any reasoning process and that they cannot be correct.

9. Professor Cross described the ratio decidendi as:

``Any rule of law expressly or implicitly treated by the judge as a necessary step in reaching his conclusion having regard to the line of reasoning adopted by him...''

R Cross and JW Harris: Precedent in English Law (4th Edn) p 72.

10. Sir Anthony Mason, when writing extra- judicially, said:

``The ratio is the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision.''


The Use and Abuse of Precedent (1988) Australian Bar Review 93 at p 103.

11. The trial judge expressly stated (at 95 ATC 4882; 133 ALR 776) that he was not required to determine whether CCA was entitled to a credit for the purpose of deciding its entitlement to the relief sought. Nor did the Full Court treat it as ``necessary'' to determine whether there was a credit entitlement in order to determine the appeal. The observations earlier quoted were amongst a number of reasons why CCA's arguments based on s 95 of STAA failed. The Commissioner did not seek to disturb the trial judge's conclusion that there was an entitlement to a credit under CR4, and, in any event, the sale of the containers to CCA was subject to an exemption by virtue of Item 27 of Schedule 1 to the E&C Act.

12. That being so, I do not believe that I am bound to reach a result in the present case which accords with the declaration as to the entitlement to a credit made in CCA. Nor is there any reasoning process to be found in the judgments which, if applied to CR5, would require a conclusion that goods which have ceased to be assessable goods are nonetheless covered by Table 1, when the effect of Note (1) is that Table 1 does not apply to a dealing with them. The applicant offered no answer to the respondent's submissions in this respect apart from invoking the actual decision in CCA, and referring to the passages which I have quoted. No submission was put, nor do I think that it is the case, that a dealing is nonetheless ``covered by'' Table 1, notwithstanding that Note (1) to the Table renders Table 1 inapplicable to that dealing.

13. In those circumstances I think that I should give effect to my own views as to the proper construction and application of the legislation, as set forth in paragraph 7 above. That construction is consistent with the statutory scheme in as much as containers for take away goods are excepted from the general principle that containers are taxed at the same time as their contents are taxed, and at the rate, if any, applicable to their contents.

14. I therefore dismiss the claim insofar as it seeks a declaration to the effect of that set forth at the commencement of these reasons.

Sub-items 1(1)(b) and (d), Schedule 2, E&C Act

15. The applicant also claims:

  • (a) A declaration that the foil lined chicken bags are goods of a kind ordinarily used for household purposes in connection with preparing, serving or consuming food or preserving or storing food within the meaning of Item 1(1)(b) and 1(1)(d) of Schedule 2 of the E&C Act.
  • (b) A declaration that the food containers are goods of a kind ordinarily used for household purposes in connection with serving or consuming food or preserving or storing food within the meaning of Item

    ATC 4192

    1(1)(b) and 1(1)(d) of Schedule 2 to the E&C Act.

Goods not covered by any Rating Schedule other than Schedule 4 to the E&C Act are taxed at 22 percent. Goods within Schedule 2 are taxed at 12 percent. Included in the goods in Schedule 2 are the following:

  • Item 1(1) ``The following goods of a kind ordinarily used for household purposes:
    • ...
    • (b) goods of a kind ordinarily used in connection with preparing, serving or consuming food or beverages;
    • ...
    • (d) goods of a kind ordinarily used in connection with cooking, preserving or storing food or beverages.''

The applicant contends that both the chicken bags and the food containers are properly characterised as food containers, or alternatively, that the chicken bags are members of a sub-class which it styled ``fresh food bags and wrappings'', and that the food containers are members of a sub-class which it styled ``plastic food containers with resealable lids''. It was submitted that goods of that kind are ordinarily used for household purposes.

The chicken bags

It was agreed the chicken bags (of which Exhibit TEF1 is an example) were not at the relevant time available for separate retail purchase. The evidence established that foil lined chicken bags are suitable for use as containers for hot and greasy cooked foods like chicken, hot meats, corn cobs, kebabs and baked potatoes.

The evidence also established that chicken bags have the following properties:

  • • They are designed to retain heat and reduce the cooling rate of the contents so the contents are kept warm between the vendor and the consumer's table. Depending on the nature of the contents, heat can be retained in the bag for up to one hour.
  • • They are designed to ensure the contents retain moisture and liquids, so as to reduce flavour loss.
  • • They prevent spillage of oils and juices while the food is in the bag
  • • They are suitable for controlled use in conventional ovens for reheating the contents, or in commercial food warmers to keep the contents warm until sold. In each instance, the appropriate heating instructions are featured on the bag.
  • • They are suitable for use in a refrigerator and ensure the contents retain moisture and freshness for up to twenty-four hours.
  • • Foil lined chicken bags have very similar properties to aluminium foil, with the added benefit that the bag is better enclosed and allows air circulation to the product, so retains freshness and moisture longer. The external paper layer provides a further insulation barrier as the heat of the foil is not directly exposed to the air, so does not dissipate as rapidly.

The evidence established that a chicken bag serves the following purposes:

  • • Delivering the chicken to the customer in a safe and hygienic manner.
  • • Carrying the chicken to the supermarket checkout, and then away from the supermarket, in a safe and hygienic manner.
  • • Keeping the chicken moist and warm for immediate consumption by the customer.
  • • Storing the chicken in a refrigerator for later consumption.
  • • Retaining moisture in the chicken for later consumption.
  • • Reheating the chicken in a customer's oven.
  • • A cooked chicken can also be consumed or served directly from a chicken bag by tearing the bag down the centre and along the bottom seam to open the bag flat, and then cutting the chicken into pieces on the bag.

Food containers

The evidence established that in response to an order from a customer, delicatessen staff serve antipasto and other foods into plastic tubs of various shapes and sizes. The plastic tubs serve the following purposes:

  • • Preventing the contents from being crushed or squashed during the delivery to the customer or carriage by them to the checkout and away from the supermarket.
  • • Delivering, carrying and storing the contents in a hygienic manner.
  • • Delivering, carrying and storing the contents in such a way as to minimise spillage or leakage.

    ATC 4193

  • • Facilitating consumption of the contents if they are to be consumed directly from the tub after purchase.
  • • Storing the contents in a refrigerator for later consumption without leakage of the contents.

The food containers are made from polystyrene manufactured by Polarcup. Polarcup plastic food containers all have the following properties:

  • • They can withstand being turned over for a short time in a customer's trolley or during storage without spilling viscous products.
  • • They can be stored in a refrigerator.
  • • They can be used in a microwave oven to heat warm contents.
  • • They are washable and can be re-used several times by consumers for the storage of food.

Plastic containers which were used in the delicatessen departments in Woolworths for the sale of delicatessen products are not available for separate retail sale. But there was evidence that Franklins sold what, to the eye, are similar containers, but of apparently superior quality.

Chicken bags as goods for household purposes

For the chicken bags to fall within Item 1(1)(b) or Item 1(1)(d) of Schedule 2 to the E&C Act, they must first fall within the opening words of the relevant Item, and also fall within one of the categories of goods described in the lettered paragraphs:
Diethelm Manufacturing Pty Ltd v FC of T 93 ATC 4703 at 4718; (1993) 44 FCR 450 at 469. It was not submitted that the change in the opening words of the Item, as they read when Diethelm was considered, from ``goods... of a kind ordinarily used for household purposes, namely '' to ``the following goods of a kind ordinarily used for household purposes'' altered or affected this principle. In the present case the contest between the parties centred upon whether the goods fell within the opening words.

The question for issue is concerned with the kind of goods in question, rather than the actual goods: Diethelm at ATC 4718; FCR 470. As Hill J pointed out in Diethelm at ATC 4719; FCR 471, the wider the genus is stated, the more likely it will be found that the class of goods is commonly used for a particular household function.

The question is to be determined at the time of the applicant's purchase of the chicken bags: CCA Beverages 95 ATC at 4884; 133 ALR at 779; 97 ATC at 4224; 143 ALR at 224. Considered at that time, the chicken bags were goods of a kind ordinarily used by a retailer as a container for take away food, and if a narrower classification were adopted having regard to the printing on the bags, as a container for take away chicken: cf Diethelm at ATC 4719; FCR 471. But, as
Hygienic Lily Ltd v DFC of T 87 ATC 4327; (1987) 13 FCR 396 illustrates, the fact that goods are used for commercial purposes does not, or does not necessarily, preclude them being of a kind ordinarily used for household purposes: Hygienic Lily at ATC 4330 and 4332; FCR 400 and 402.

``Ordinarily'' is used in the sense of ``commonly''. The term is not equivalent to ``exclusively'' or ``predominantly'':
FC of T v Chubb Australia Ltd 95 ATC 4186 at 4188; (1995) 56 FCR 557 at 560. Goods are of a kind ordinarily used for household purposes if the goods are to be recognised as ``members of a class or genus... which commonly or regularly (albeit not necessarily exclusively or principally) is used for household purposes'': Hygienic Lily at ATC 4330; FCR 400. In Hygienic Lily the paper cups stamped with ``McDonalds'' trademarks or designs were regarded as being members of a class or genus - paper cups - commonly used for household purposes - the carrying of beverages and the consumption thereof. In the view of Gummow J a purpose may be a household purpose, even if not exclusively or principally pursued in situ a dwelling: Hygienic Lily at ATC 4330; FCR 400. The item requires consideration of whether the goods are ordinarily used for ``household purposes'', rather than whether the relevant kind of goods is ordinarily used in households: Chubb at ATC 4200; FCR 570.

8 In CCA there was a difference between the form of the containers (cans and bottles) as purchased by CCA from the manufacturers of them, and their final form as sold by CCA to the retailers. Because of that difference, the trial judge was not satisfied that they were within Item 1(1)(b) in Schedule 2. But if it had been material to consider the container in its final form as sold by CCA to retailers, his Honour would have reached a different conclusion. At 95 ATC 4884; 133 ALR 778 his Honour said:

ATC 4194

``It was not disputed that CCA's beverages are commonly consumed domestically. It follows that the containers in which they are sold by retailers are commonly found in use in homes as the means of, at least, storage of the beverages. In my view, this shows that the Containers in the form in which CCA sold them to the retailers were `goods of a kind ordinarily used [a] for household purposes [and] [b] in connection with... storing... beverages'. That is, in their final form the Containers fell within both the opening words of Item 1(1) and para (d) of that sub-Item.''

In the Full Court, a different view was expressed at 97 ATC 4224-4225; 143 ALR 225:

``I must say that it seems to me a somewhat surprising proposition that the sorts of cans and bottles here in question are goods of a kind ordinarily used for household purposes in connection with serving, consuming, preserving or storing beverages... I am inclined respectfully to doubt that, because cans or bottles of soft drink are commonly to be found in household refrigerators or on household shelves, the bottles or cans are to be regarded as goods ordinarily used for household purposes in connection with storing beverages. I am by no means convinced that, because a household buys a can of soft drink and the soft drink remains in the can until the can is opened and the drink consumed, the household is properly to be described as 'using' the can for storing the drink.''

However, it was not necessary for the Court to reach a final conclusion on the matter.

I do not think that it is either helpful or appropriate to classify the goods in question in the present case as ``food containers'' or ``fresh food bags and wrappings'', because each of those classifications is expressed at a level of generality which fails to capture the essential features or properties of the goods in question (see paragraph 23 above). The enquiry, with respect to the goods in question, is whether they are of a kind ordinarily used for household purposes. One can thus take into account similar goods made by other manufacturers. Whether other goods are similar or of the same kind as the goods in question may involve questions of fact and degree. But the evidence does not establish the existence of any other particular goods which are said to be of the same kind as the goods in question, nor does common knowledge suggest that this is so. Thus it is appropriate to proceed on the basis that the enquiry is whether foil lined bags, or foil lined bags suitable for use as containers for hot and greasy cooked foods, are ordinarily used for household purposes in connection with preparing, serving or consuming food, or in connection with cooking, preserving or storing food.

A somewhat robust approach should be taken in construing concessional items in sales tax legislation: Dick Smith Electronics Pty Ltd v FC of T (1998) 37 ATR 346 at 352-353. The Court should not give exemption and classification items ``... any narrow or rigid meaning. They must be understood in a flexible and elastic sense...'':
FC of T v Chubb Australia Ltd 95 ATC 4186; (1995) 56 FCR 557, per Burchett J at ATC 4187; FCR 559.

The applicant contended that its customers ordinarily use the chicken bags to serve, consume, preserve and store the food contained in them at home, ie for household purposes. They are goods of a kind ordinarily used for or in connection with the household purposes of serving, consuming, preserving and storing food in a domestic setting.

The respondent contended that the ``kind'' in question in Item 1(1)(b) is of household items with a utility for serving or consuming food, and that connotes repeated use. Likewise with respect to the ``kind'' in question in Item 1(1)(d) which encompasses household items with a utility for preserving or storing food generally, again connoting repeated use. However, the respondent properly conceded that there would be some goods which would fall within the relevant items which would have no quality for repeated use. Examples are aluminium foil and cling wrap, which Streamlined Sales Tax Bulletin No 31 recognises as goods taxable at 12 percent. That being so it is hard to see why goods must have the capacity for repeated use if they are to fall within the items in question.

The primary function (or, at least the initial function) of foil lined bags is to act as a container for the transport of their contents from the retail counter to wherever. Chicken bags were not available for purchase for household purposes. If foil lined bags are goods of a kind ordinarily used for household purposes, it will be because the bags have an

ATC 4195

ancillary or subsequent use, viz, if the chicken is taken home and left in its bag, the bag assists in, eg, the preserving or storing of its contents.

But if goods are to be characterised as being of a kind ordinarily used for household purposes in connection with one of the matters designated in Item 1(1)(b) or (d), that suggests that something is done to or with the goods in a domestic context in connection with one of the designated matters. The chicken is placed in the bag by the retailer as part of the process of sale. Nothing is done with the bags in the domestic context other than to leave the chicken in the container in which it was purchased. If, as the decision of the Full Court in CCA suggests, the household is not properly to be described as ``using'' the coca cola can or bottle for storing the soft drink, with the result that the cans are not goods of a kind ordinarily used for household purposes in connection with serving, consuming, preserving or storing beverages (97 ATC 4224; 143 ALR 225) then the same conclusion ought to flow in relation to the foil lined containers in the context of the present case.

16. There was some evidence that a cooked chicken can be served directly from a chicken bag by tearing the bag apart, but no evidence as to whether the bags are ordinarily used in that way. That evidence provides too slight a foundation for a conclusion that the bags are (of a kind) ordinarily used for household purposes.

17. In CCA the containers formed part of the manufacturing process. That is not the case here. Nor are the bags part of the retail display process. Nor is their use necessarily confined to transportation of their contents. What the containers are not, may assist in classifying what they are, but none of the matters to which I have referred indicates or requires a conclusion that the foil lined bags are goods of a kind ordinarily used for household purposes.

18. Even if the householder is properly to be characterised as ``using'' the bags, the bags are of a kind ordinarily used for the retail or commercial purpose of making their contents available to a customer. Any use of the bags for household purposes is residual in nature or ancillary to their principal or initial use. It is one thing to say that paper cups used in McDonalds are goods of the same kind as paper cups used for household purposes. It is quite another to say that goods are of a kind ``ordinarily used'' for household purposes just because they may serve a household purpose once their primary or initial purpose has been served. Even if the view be taken that there is a continuum of use commencing with the retailer and concluding with the householder, goods of that kind would not be characterised as ordinarily used for household purposes.

19. For these reasons I would refuse to make the declaration sought.

Food containers as goods for household purposes

20. The food containers differ from the foil lined bags in a number of respects. First, similar products are available for retail sale to households, albeit those in evidence appear, at least to my eye, to be of superior quality. But that does not mean that they are not goods of the same kind as the goods in question. Second, the food containers are washable and can be reused several times by consumers for the storage of food. They can be reused for a range of goods, and are long lasting and, with careful use will retain their shape after many years of storage.

21. Whilst it may be true to say, as the respondent submitted, that there are a myriad of goods answering the description of containers for food products from the cling-wrapped polystyrene tray holding fresh meat or vegetables, to the hermetically sealed can of beluga caviar, that is not really to the point. The issue is whether the food containers in question are goods of a kind ordinarily used for the household purposes of storing food. Given the uses to which the instant products can be put, and the fact that containers similar to, and of the same kind as the plastic food containers have been available for sale by retail to householders, the applicant has made out a case for the declaration which it seeks in this respect.

22. I will hear argument on the question of costs.

THE COURT ORDERS THAT:

1. Declare that the food containers, being exhibits TEF2, TEF3 and TEF4, are goods of a kind ordinarily used for household purposes in connection with preparing, serving or consuming food or preserving or storing food within the meaning of Item 1(1)(b) and 1(1)(d) of Schedule 2 to the Sales Tax (Exemptions and Classifications) Act 1992.

2. Application otherwise dismissed.

ATC 4196

3. Direct that Exhibits TEF2, TEF3 and TEF4 remain with the papers.


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