TELSTRA CORPORATION LTD v FC of T

Judges:
Jenkinson J

Court:
Federal Court

Judgment date: Judgment handed down 26 June 1995

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Jenkinson J

Trial of an action.

By writ issued out of the High Court of Australia the applicant claimed declarations that goods called over voltage protection cassettes and goods called main distribution frame terminating blocks, both of which were and are items of equipment used in the applicant's telephone exchanges, are exempt from sales tax. The action was remitted to this court shortly after it had been commenced.

Sub-section 5(1) of the Sales Tax (Exemptions and Classifications) Act 1935 provides:

``Notwithstanding anything contained in any Sales Tax Assessment Act, sales tax shall not, subject to this section, be payable upon the sale value of any goods covered by any item or sub-item in the first column of the First Schedule under any Act specified in the second column of that Schedule opposite that item or sub-item.''

At relevant times, that is between 1 October 1987 and the commencement of the action on 3 June 1992, the First Schedule included this item:

``Nos. 1 to 9

90C(1) Electrical fittings and accessories (including electronically operated electrical fittings and accessories) and electrical materials, being goods of a kind used exclusively or primarily and principally as part of fixed electrical installations in consumers' premises, but not including-

• (a) bell equipment, burglar alarm equipment, fire alarm equipment, recording equipment and electronic equipment (other than electronically operated electrical fittings and accessories);
• (b) brackets, canopies, chains, hooks and galleries;
• (c) candelabra, chandeliers, electroliers, electric light globes, lamps and tubes, pendants, shades, bowls and reflectors;
• (d) condensers, converters, starters and transformers;
• (e) electrically operated appliances, apparatus or machines;
• (f) engines, alternators, primary and secondary batteries and other generating equipment;
• (g) flexible cables;
• (h) light boxes;
• (i) neon signs and other luminous discharge lighting equipment, including fluorescent lighting equipment; or
• (j) goods covered by item 2, or sub-item (4) of item 12, in the Third Schedule or goods or parts for goods referred to in sub-item (3) of item 12 in the Third Schedule.

Nos. 1 to 9

(2) Goods of a kind used exclusively, or primarily and principally, in connexion with fixed electrical installations in consumers' premises, namely:-

• (a) Adaptors;
• (b) Plugs;
• (c) Electrical safety devices for the protection of persons.

(3) Switch lampholders.

(4) Parts for goods covered by this item.''

``Nos. 1 to 9'' was required by sub-section 3(3) of the Sales Tax (Exemptions and Classifications) Act 1935 (``the Exemptions Act'') to be read as a reference to each of the Sales Tax Assessment Acts, the short titles of which concluded with a reference to a number in the series 1 to 9 and the year 1930.

The applicant alleges that each of the two items of equipment falls within the description ``[e]lectrical fittings and accessories... being goods of a kind used... primarily and principally as part of fixed electrical installations in consumers' premises''. The respondent denies that anything of which either of the two items could be said to be part is

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ATC 4402

within the description ``fixed electrical installations''.

Telephone exchanges in which the two items are used are housed in buildings in which the applicant consumes electricity supplied to it for reward by electricity supply authorities. Commonly the supply is at 240 or more volts, of 400 amperes, alternating current. The current flows through fuses and consumption meters to equipment which diverts current for heating, ventilation, air-conditioning and lighting within the exchange. The equipment also diverts current, of 100 amperes, to a transformer, by which the current is converted from the voltage at entry into the building to 50 volts. In the same equipment complex the current is converted by a rectifier to direct current of a nominal voltage of 48 volts. Thence the direct current is carried by busbars to banks of batteries, by which current is supplied when a failure in the supply of electricity by the supply authority occurs or when an unexpected load is imposed in the exchange. The current then flows to a power distribution cabinet, whence the current flows by cables to magazines (called line interface magazines) in which are stored sets of equipment known as line interface cards. Each set on a card has functions for several telephone services. Current enters the magazines as 8 amperes at 48 volts direct current. The equipment in the magazine operates to provide current for each individual telephone service as 0.02 to 0.01 ampere. Direct current at 48 volts is available for the operation of the telephone service and alternating current at 95 volts is available to operate the alerting device (whether bell or tone ringer) in the subscriber's premises. When the phone rings in the subscriber's premises and the phone is answered the direct current flows through the circuit, the voltage dropping from 48 volts at the exchange to about 10 volts at the subscriber's phone. The signal generated by the subscriber's voice is carried by alternating current at about 10 volts as the signal leaves the subscriber's premises and rising to about 30 volts as the signal enters the exchange. Direct current is drawn upon to operate other functions in the subscriber's premises: dialling signals, stored telephone number memory, clock and digital display.

Between the equipment housed in a line interface magazine and the exterior of the telephone exchange each pair of wires which constitutes the electrical circuit dedicated to a particular telephone service passes through a structure called a main distribution frame. That is a rigid metallic structure about six feet high, of greater length, rectangular in shape, about two feet wide. On either side of the structure are fitted banks of structures known as main distribution frame terminating blocks. A terminating block consists of an assemblage of pairs of metallic conductors in a housing of rigid insulating material about 10 centimetres long. Four or five pairs are housed side by side as a set within rigid insulating material. The goods known as main distribution frame terminating blocks consist of banks of these sets enclosed within a solid frame of insulating material. The banks of sets lie horizontally at half a dozen or more levels within the main distribution frame. Each pair of wires, constituting a telephone service circuit, entering the exchange is firmly attached to the outer end of a pair of conductors in one of the sets in a terminating block on the main distribution frame. That side of the frame is called the line side. On the other side of the main distribution frame, called the equipment or exchange side, are banks of similar terminating blocks, similarly arranged. Connecting the inner terminals of each pair of conductors which are in use on the line side and the inner terminals of a pair of conductors on the exchange side is a pair of flexible insulated wires called jumper cabling. Thus the circuit is extended from the line side to the exchange side, whence it is extended through a line interface magazine to the processing and switching equipment of the exchange.

Over voltage protection cassettes are devices which may be plugged into a set of 4 or 5 conductors in a terminating block. They are plugged into the sets of conductors in use on the line side of the main distribution frame. In the cassette are containers filled with a gas, one container for each pair of conductors in the set. The gas does not conduct electricity of a voltage and current within parameters regarded as normal for a telephone system, but the gas becomes conductive of electricity beyond those parameters. Metallic conductors in the gas container and elsewhere in the cassette are so arranged that under normal conditions the electrical circuit is maintained. But when the gas conducts electricity a path for the electricity to earth of much lower resistance than the path

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ATC 4403

into and through the jumper cables is created. If an abnormally high voltage or current flows from the line side of a circuit most of the electricity flows through the electrically conductive gas to earth. When voltage and current return to normal the gas ceases to be conductive and the normal circuit is re- established. The gas container is not impaired and the over voltage protection cassette remains serviceable for many years.

A main distribution frame was, when electrical fittings used in connection with electrical installations were first included in the First Schedule of the Exemptions Act in 1945, and remains now, a part of most telephone exchanges. It serves a number of purposes. It provides a convenient means of exposing in an easily accessible position the pairs of wires which constitute a vital part of every telephone service, where testing of the circuit may easily be undertaken, where alteration of the course of the circuit may easily be effected, to accommodate change or termination of a service and changes in the processing and switching functions beyond the equipment side of the frame, by disconnecting wires or jumper leads from one pair of conductors in the terminating block and connecting them to another, and where protection of the exchange equipment from damage by unacceptably high voltage and current surge is best undertaken, at the point where aggregates of pairs of wires emerge from cabling into separate pairs. In 1945 and for long after 1945 the protection was by fuses and the connection of wires was by soldering. Now the protection is by ionising gas and the connection of wires to conductors is by a terminating tool which strips plastic insulation from the wire and effects sound electrical contact between the wire and the terminating block conductor by pressing it into pincers at the end of the conductor. But the purpose and function of the main distribution frame have remained the same.

It was not submitted that a terminating block was not within the meaning of the words ``[e]lectrical fittings and accessories..., being goods... used... primarily and principally as part of'' main distribution frames, nor that a telephone exchange building was not a consumer's premises. It was submitted on behalf of the respondent that an over voltage protection cassette was not ``goods of a kind used... primarily and principally as part of'' main distribution frames. Although the cassette had been designed specifically to plug into a set of pairs of conductors forming parts of a terminating block and to have the performance characteristics required for the protection of telephone service equipment in a telephone exchange, it was submitted that the cassette was but one particular version of a ``kind'' or genus of electrical fittings or accessories which comprehended all the devices by which an electrical circuit may be broken or the current diverted in response to abnormal voltage or current so as to protect persons or things from harm. Not all electrical fittings or accessories of that kind are used primarily or principally as part of fixed electrical installations in consumers' premises. Some are used outside consumers' premises. I think the kind or genus of which an over voltage protection cassette is an example is more restricted than that proposed in the submission: it comprehends those devices which are designed for the protection of telephone exchange equipment beyond the point at which cabled sets of telephone circuit wires emerge from the cables and are separated for introduction into the exchange system. All such devices are ``of a kind used... primarily and principally as part of'' main distribution frames.

The principal subject of debate between the parties was whether main distribution frames were within the meaning to be assigned to the expression ``fixed electrical installations'' in item 90C.

Division XII was inserted into the First Schedule of the Exemptions Act by Act No. 3 of 1994. Although sub-section 3(2) of the Exemptions Act provides that a heading, in the case of Division XII the heading ``Building Materials'', shall not be read as affecting the interpretation of the Schedule or of any item in it, the content of the items clearly indicate the principal subject matter of Division XII at that time to have been materials and goods employed in building. As the Second World War was ending item 90C was inserted in Division XII by Act No. 36 of 1945. Item 90C then read:

``90C Electrical fittings (and parts therefor) of a kind used exclusively, or primarily and principally, in, or in connexion with, electrical installations in houses, viz.:-

• Ceiling roses, connectors and connector bodies, connectors of a kind used in

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  ATC 4404

  junction boxes, flush plates, lampholders (including switch lampholders and batten lampholders), mains connexion boxes, plugs and plug sockets, plug receptacles, flush pilot receptacles, adaptors, switches, switch plugs, switch plug combinations, switchboards, fuse boards, distribution boards, switchboxes and flush switch wall boxes.''

By Act No. 37 of 1950 a sub-item was added in these terms:

``(2) Electrical fittings and accessories (and parts therefor) and electrical materials, n.e.i., being goods of a kind used exclusively or primarily and principally as part of electrical installations in houses or other consumers' premises, but not including-

• (a) bell equipment, burglar alarm equipment, fire alarm equipment, recording equipment, and electronic equipment;
• (b) brackets, canopies, chains, hooks and galleries;
• (c) candelabra, chandeliers, electroliers, electric light globes, lamps and tubes, pendants, shades, bowls and reflectors;
• (d) condensers, converters, starters and transformers;
• (e) electrically operated appliances, apparatus or machines;
• (f) engines, alternators, primary and secondary batteries and other generating equipment;
• (g) flexible cables;
• (h) light boxes; or
• (i) neon signs and other luminous discharge lighting equipment, including fluorescent lighting equipment.''

By Act No. 53 of 1953 the following was substituted as item 90C:

``90C(1) Electrical fittings and accessories, and electrical materials, being goods of a kind used exclusively or primarily and principally as part of fixed electrical installations in consumers' premises, but not including-

• (a) bell equipment, burglar alarm equipment, fire alarm equipment, recording equipment and electronic equipment;
• (b) brackets, canopies, chains, hooks and galleries;
• (c) candelabra, chandeliers, electroliers, electric light globes, lamps and tubes, pendants, shades, bowls and reflectors;
• (d) condensers, converters, starters and transformers;
• (e) electrically operated appliances, apparatus or machines;
• (f) engines, alternators, primary and secondary batteries and other generating equipment;
• (g) flexible cables;
• (h) light boxes; or
• (i) neon signs and other luminous discharge lighting equipment, including fluorescent lighting equipment.

(2) Adaptors and plugs of a kind used exclusively or primarily and principally in connexion with fixed electrical installations in consumers' premises.

(3) Switch lampholders.

(4) Parts for goods covered by this item.''

Several later amendments brought the item to the state in which it was during the period relevant to this action.

Considered as words, and as a phrase, in common parlance, ``fixed electrical installations in consumers' premises'' has a meaning, as I find, which comprehends main distribution frames. The structure is a fixed installation in telephone exchange premises, being apparatus placed in a particular position chosen for ease of connection to the cables carrying telephone wire into the building and connection to the equipment by which the telephonic signals carried by the wires are to be processed and switched for transmission out of the exchange, and being apparatus fixed to the floor for stability and fixed to the earthing path on which excess voltage and current may be carried. It is, as I find, an electrical installation, being a structure for the transmission of electric current while that current is being put to the particular use of signal transmission, and for facilitating the occasional interruption of the current and the occasional testing of signals carried by the current and the occasional transmission of electricity to earth.

Mr. Merkel Q.C., who appeared with Mr. Davies for the respondent, submitted that the expression ``fixed electrical installations'' on its proper construction comprehended only such installations as are dedicated to the distribution

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ATC 4405

of the electricity supplied to consumers' premises to those places in the premises where the electricity is committed to some particular work or function. Further, or alternatively, Mr. Merkel submitted that before item 90C was enacted, and ever since, the expression ``electrical installations'' has not comprehended installations concerned with telephonic transmission, for the description of which, and of installations concerned with which, a different nomenclature has been in use. In support of both submissions a number of considerations was advanced. The legislative purpose in including and thereafter amplifying the sales tax exemptions conferred by item 90C was shown, by reference both to parliamentary records and to the texts of the original item and the successive amendments, to be the encouragement of the construction of houses and other buildings. Attention was drawn to the consistent distinction, in the nomenclature of Commonwealth legislation, other than sales tax legislation, between the transmission of electricity to a point at which its energy is to be employed and the transmission of communication signals by modulation of electrical energy. Exposition of the distinction began with the Post and Telegraph Act 1901, wherein terminological distinction is drawn between telegraph line and telegraphic and telephonic communication on the one hand and electricity and electric line on the other. In the Telecommunications Act 1975 the expressions ``electrical line'' and ``electrical installation'' are used in description of things other than those which are comprehended by the expression ``telecommunications installation''. The distinction was maintained in other Commonwealth legislation concerning telecommunications. Attention was also directed to the terminology of the Standards Association of Australia Wiring Rules, which were given the force of law by State legislation, and particularly to those Rules as they read during the period from 1945 to 1953, when item 90C was taking the form, substantially, in which it was in force at the time relevant to this action. During that period Rule 125 required, inter alia, that ``conductors, cables, metallic sheathings and conduits shall be separated from... telephone bell or other cables or metal conduits not forming part of the electric installation''. That was an indication, it was submitted, that in the terminology of State legislation telephonic equipment in consumers' premises did not fall within the meaning of the expression ``electrical installation''. The expression ``Installation (Electrical)'' was given this definition by Rule 36:

``INSTALLATION (Electrical) shall mean all the electric wiring, accessories, fittings, consuming devices, control and protective gear and other apparatus connected to the wiring situated on any premises in which electricity is supplied or is to be supplied to a consumer or consumers. The installation shall be deemed to commence at the consumer's terminals. The term `installation' shall be deemed to include `sub-installation' except where otherwise stated.''

The submission does not lack persuasiveness. But the reference in the definition to ``consuming devices... and other apparatus connected to the wiring situated on any premises in which electricity is... supplied to a consumer'' seems to indicate a meaning of the defined expression different from that which Mr. Merkel's primary submission assigned to the expression ``fixed electrical installations'' in item 90C.

Reference was made to terminological usage in many other documents: State legislation concerning the generation and transmission of electricity to consumers, documents prepared by and for those concerned with electric power generation and supply and those concerned with the provision of telephonic communication services, chiefly the applicant and its predecessors.

Much oral evidence by many witnesses concerned, either practically or academically, with the generation and supply of electricity or with the development or provision or maintenance of telephonic communication services, was adduced as to whether the goods here in question are, when installed in a main distribution frame, part of something which is within the ordinary meaning, or within the trade usage meaning, of the expression ``fixed electrical installations''.

Authority requires that it be first determined as a question of law whether that expression is used in item 90C in a sense other than that which it has in ordinary speech. As often happens, the expression is one which only a few classes of persons in the community have occasion to use often or are likely to see or hear often. If witnesses representative of those

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ATC 4406

classes cohere in their testimony to a particular meaning, there is a temptation to characterise that meaning as the meaning, either in ordinary speech or in the speech of a particular trade or technical field. When the stage is reached of deciding whether particular goods fall within the assigned meaning of a statutory word or collocation of words, the evidence of representatives of those few classes may be persuasive.

In this case I was faced, at each of those stages, with irreconcilable conflicts of evidence from witnesses whose occupations had given them opportunity to read and hear and use the expression ``electrical installation'' and cognate phrases. One explanation of the diversity of opinion may be found in the organization and legislative regulation, in this country, of the electricity supply industry and the telephonic communications industry. Until very recently each industry was dominated by a few larqe entities. The provision of telephonic communication services beyond a single building was by the applicant or one of its predecessors and the generation and supply of electricity to consumers' premises was, almost wholly, by one government instrumentality in each State. Although in each State the electricity supply requirements of the applicant and its predecessors have been met by the State instrumentality, neither the instrumentality nor the State had power to supervise the use in telephonic communication of the electricity supplied to those few consumers. But the State had the responsibility and power to supervise the use of the electricity supplied to nearly all the other consumers in the State. That power was exercised and the responsibility discharged in large measure by the instrumentality. The supervision of the applicant and its predecessors in the use made in telephonic communication of the electricity supplied to them was by the Commonwealth and the applicant and its predecessors. Two kinds of legislative regimes concerning supervision of the use of electricity by consumers have operated since Federation, one of telephonic communication services provided by the Department of the Postmaster- General and his successors and the other of use by all other consumers. Those administering the two kinds of regimes co-operated to avoid any undesirable consequence of the duality, particularly at the point where supply ends and use for telephonic communication purposes begins. Because the latter use is at voltages and currents less dangerous to life and property than the voltages and currents of supply to, and of much of the use by, other consumers, co- operation has been a relatively painless activity. But the duality has naturally led to the use of nomenclature designed, or at least apt, to distinguish the two regimes the one from the other, just as the difference in use by the consumer and in voltage and current has led to differences in training, work practices, safety regulation and scientific and technological preoccupations.

My conclusion is that the expression ``fixed electrical installations'' was not used in item 90C in any other sense than that in which it was, in the sixth decade of this century, and still is, used in ordinary speech in this country. Neither the evidence nor other legislation shows that the expression ``fixed electrical installations'' or the expression ``electrical installation'' has or had a meaning, for those concerned with the generation or supply to consumers' premises of electricity, which differed from the meaning in common parlance and which did not comprehend equipment in which electric energy was being used, as distinct from equipment by means of which the electricity was being transmitted to the using equipment or transformed in voltage or current so that it could be put to use in the using equipment. The Oxford English Dictionary (2nd ed.) gives a specific use of the word ``installation'', ``to include all the necessary plant, materials and work required to equip rooms or buildings with electric light'', and gives examples of the usage from 1882 to 1927. But the examples are consistent with a usage which does not exclude equipment which uses electricity. And the evidence and other legislation does not show that the expressions ``fixed electrical installations'' or ``electrical installation'' has or had a meaning for those concerned with generation or supply to consumers' premises which did not comprehend telephonic communications equipment. In saying that the evidence did not show either of the usages I have specified I do not suggest that there was not much evidence which did suggest one or other usage: there was substantial evidence for and against each such a usage. But the evidence was not reliable as to usage, as I find. It derived from a reasoning to that usage which would accurately reflect the

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ATC 4407

deponent's conception of the organization of the electrical supply industry and of the telephonic communication industry, rather than from the deponent's recollection of the use of the expressions in speech and writing.

My inability to find a trade or professional usage of the expression ``fixed electrical installations'' different from the ordinary meaning of those words leads to the conclusion that the Parliament intended the meaning of common parlance. In considering whether a main distribution frame was within that ordinary meaning of the expression I had regard to the evidence that it was not. That evidence may have established that a main distribution frame and other parts of a telephone exchange are often described as telecommunications installations or as parts of a telecommunications installation. It is often convenient and natural to use a more specialised nomenclature. But I was not persuaded by the evidence that parts of a telecommunications installation were not called in ordinary speech parts of an electrical installation.

Mr. Merkel submitted that, if main distribution frames were found to be within the meaning of the expression ``fixed electrical installations'', both the frame and the two parts of it which are the subjects of the action were within the meaning of the expression ``electrically operated... apparatus'' in sub-item 90C(1)(e) and therefore excluded from exemption. Mr. Forsyth contradicted that submission, first by contending that, if the word ``apparatus'' were given its widest meaning - an assemblage of instruments, machinery, appliances, materials, etc., for a particular use, as the Macquarie Dictionary gives - the expression ``electrically operated... apparatus'' would comprehend almost everything within the meaning of the words ``electrical fittings and accessories... being goods of a kind used... primarily and principally as part of fixed electrical installations in consumers' premises''. Parliament could not have intended so nearly complete an exclusion by sub-item 90C(1)(e) from the exemption granted by the introductory inclusive words of item 90C(1), it was submitted. Then Mr. Forsyth proposed, as a solution of the dilemma he had suggested, reliance on one of the conceptual distinctions which had greatly influenced a number of witnesses. A system for the distribution of electricity is not to be conceived, according to Mr. Forsyth's submission, as electrically operated, and apparatus by means of which electricity is merely carried or distributed is not electrically operated. The other two nouns in sub-item 90C(1)(e) - ``appliances'' and ``machines'' comprehend that which does not distribute electricity but which converts ``electrical energy into some other kind of useful form: mechanical, heat, acoustical'', as Mr. Forsyth put it in final submission. The expression ``electrically operated... apparatus'' must be understood as limited in meaning to apparatus by means of which such a conversion is effected. The electricity carried through a main distribution frame is not being so converted by anything in or on it. Nor do the terminating blocks or the over voltage protection cassettes convert electricity into some other ``kind of useful form''. Neither is electrically operated, each is merely ``electricity-carrying'' apparatus, according to the submission.

The Treasurer's speech on the second reading of the Bill for what was enacted as Act No. 37 of 1950 included the following observations:

``The new concessions relate chiefly to building materials and foodstuffs. It is a fact, of course, that most goods of those classes are already exempt, but the amendments now proposed will provide further substantial relief in this direction.

The new exemptions of building material include builders' hardware such as nails, bolts, screws, door handles, locks and similar fittings of a kind installed by builders as fixtures in houses. The present exemption of specified household electrical fittings is being extended to cover certain classes of electrical fittings, previously excluded because of the extent of their use in buildings other than houses.''

It will be observed that the extension, ``to cover certain classes of electrical fittings, previously excluded because of the extent of their use in buildings other than houses'', was not achieved by specifying those classes by description, as had been the drafting technique employed in item 90C as it was inserted in the First Schedule by Act No. 36 of 1945. The extension was achieved by substituting, for the words ``electrical installations in houses, viz:- Ceiling roses'' and so on, the words ``electrical installations in houses or other consumers' premises, but not including - (a) bell

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ATC 4408

equipment'' and so on. In 1953 the adjective ``fixed'' was introduced.

Mindful of the possibility that exceptions may be included in a statutory provision from an abundance of caution, I did not take the goods specified in the lettered paragraphs of the 1950 enactment or the 1953 enactment to be indicative of the proper construction of the introductory words. Nor was I induced, as Mr. Merkel submitted that I should be, to confine the meaning of the expression ``fixed electrical installations'' to such installations as were fixtures to the consumers' premises and which carried the supplied electricity to, or near to, those places in the premises where it was to be committed to a particular work or function. But, as Mr. Merkel pointed out, the legislative provisions of item 90C, considered as a whole in their context and in their successive modifications and in the light of the Parliamentary materials of which the passage I have quoted is an example, can be seen to be concerned to exempt parts of electrical installations which are commonly established during the construction or modification of a building, but concerned also to exclude from exemption, inter alia, those installations and parts of installations by means of which the supplied electricity is employed to perform a particular function. Particularly is the latter concern indicated in and after 1950 in paragraph (a), in ``electric light globes, lamps and tubes'' in paragraph (c), and in paragraph (e).

One witness deposed that while an over voltage protection cassette may correctly be said to be electrically activated, because the gas conducts electricity by ionising under the influence of a surge of electricity, it is correctly to be described as ``plasma operated'', because it is the conductivity of the gas which enables the earthing function of the device to be performed.

The conceptual distinction on which that evidence is based is not one which has an influence on ordinary usage, as I find. The function of the device is to alter the path of an electrical circuit. That function it performs by the operation of electricity in the circuit, of a particular voltage or current, on another component of the device, the contained gas. Such a device is within the ordinary meaning of the expression ``electrically operated... apparatus''.

Mr. Merkel submitted that the terminating blocks, at least when fitted with over voltage protection cassettes, as on the line side of the main distribution frame they are, also fall within the meaning of that expression. One of the functions of a terminating block on the line side of a main distribution frame is to alter the path of the telephone service electrical circuit, it was submitted. The sets of conductors in the terminating block are given a configuration which enables the cassette to be plugged into the set and which enables a sound electrical contact to be established between each pair of conductors in the set and a pair of conductors in the cassette. The terminating block and the cassette are parts of electrically operated apparatus, according to the submission.

It was not submitted, and I do not consider, that a terminating block, considered alone (as on the exchange side of the main distribution frame it must be), is within paragraph 90C(1)(e). It is, as I have found, an electrical fitting or accessory and part of an electrical installation. But as apparatus - an assemblage of materials for a particular use - it merely conducts a multitude of electrical circuits over a short distance. That which merely conducts electricity is not itself to be described as electrically operated.

A terminating block has a number of functions, already stated, of which enabling alteration of the paths of electrical circuits is but one. The placement of over voltage protection cassettes as plugged extensions to the sets of conductors in terminating blocks is dictated merely by the convenience of such an arrangement. The conductors within those sets contribute nothing to the functioning of the cassette except the conducting of electricity to the plug terminals. The terminating block and the cassette are separate apparatus and separate goods. When joined together the terminating block remains outside the meaning of ``electrically operated... apparatus''.

Mr. Forsyth advanced alternative submissions concerning sub-item 90C(2). It was submitted that the terminating blocks were adaptors within the meaning of that word in paragraph 90C(2)(a). The Oxford English Dictionary (2nd ed.) gives exemplifying quotations, in lieu of a definition of the word adaptor, of its usage in relation to ``electrical engineering'', as follows:

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ATC 4409

``1907 T. O'C. SLOANE Stand. Electr. Dict. (ed. 12) 11 Adapter, a screw coupling to engage with a different sized screw on each end; one of the uses is to connect incandescent lamps to gas-fixtures. 1913 E. E. Becker & Co. Illustr. Catal. Sci. App. 539 (caption) Plug adaptor, for tapping current off any ordinary bayonet-catch lamp-holder. 1943 Gloss. Terms Electr. Engin. (B.S.I.) 123 Socket-outlet adaptor, an accessory for insertion into a socket-outlet and containing metal contacts to which may be fitted one or more plugs for the purpose of connecting to the supply portable lighting fittings or other current-using appliances.''

The Macquarie Dictionary (2nd ed.) gives the following:

``1. one that adapts. 2. a device for fitting together parts having different sizes or designs. 3. an accessory to convert a machine, tool, etc., to a new or modified use. 4. Elect. an accessory plug for connecting a piece of apparatus fitted with one type of terminals to a supply point with a different type.''

The meanings of the word, in reference to electricity, in common speech in Australia, which I hold to have been the meanings intended by the legislature, have been, as I find, throughout the period from 1953 to the present, those which are given last in each of those dictionaries. In the Macquarie Dictionary entry the expression ``supply point'' is to be understood, in the expression of the meaning I give to the word ``adaptor'', as a point of supply of electric current which is not at that point engaged in the performance of any function. When in 1945 item 90C specified, in explanation of what the introductory phrase comprehended, inter alia ``adaptors'' and ``plugs'', those two words were in common use in the Australian community in reference to articles in common domestic use as electrical fittings ``used... primarily and principally, in connexion with fixed electrical installations in houses''. Unlike usage of the expression ``electrical installation'', usage of the words ``adaptors'' and ``plugs'' at that time by consumers and builders and electricians was frequent. At that time usage of the word ``adaptor'' comprehended both the last and the penultimate meaning given by the Oxford English Dictionary. By 1953, or perhaps a little later, the usage last given by the Macquarie Dictionary had emerged in common parlance to accommodate the experience of Australians travelling abroad with supply points of a different type from those in their own homes. There is nothing in the evolution of item 90C or in the parliamentary materials to suggest that in item 90C as presently in force the word is used in any sense other than that which it has in common speech. Nor do I find that that usage in common speech has changed since the sixth decade of the century. Neither a terminating block nor an over voltage protection cassette falls within any of the meanings of the word in common parlance.

It was submitted by Mr. Forsyth that an over voltage protection cassette was a plug within the meaning of paragraph 90C(2)(b). Like the fuse which it has supplanted, the device plugs into the terminating block. The German name which its manufacturer gave the device translates into English as ``protection plug''.

The Macquarie Dictionary gives, in relation to electricity, the following about the word ``plug'':

``3. Elect. a. a tapering piece of conducting material designed to be inserted between contact surfaces and so establish connection between elements of an electric current connected to the respective surfaces. b. a device, usu. with three prongs, which by insertion in a socket establishes contact between an electrical appliance and a power supply.''

The Oxford English Dictionary gives, in relation to electricity, the following:

``A device designed to be inserted into a suitable socket to establish an electrical connection; spec. one for connecting the lead of an appliance to an electricity supply, consisting of an insulated casing with two or three pins (or, formerly, with one pin and a ring); also (chiefly colloq. or as wall plug ), a socket fixed to or in a wall for receiving such a plug. Also fig. (For to pull the plug see sense 2k.)

1883 J. W. URQUHART Electric Light (ed. 2) ix.286 When it is required to transmit the current to a particular lamp, a metal plug is inserted at the point where the bar connected with the lamp and the bar connected with the machine intersect. Ibid 296 The `safety fusible plugs' employed in the Edison and Swan systems usually consist of a short

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ATC 4410

length of lead wire. Their function is to melt... should an unduly strong current... be transmitted. 1888 D. SALOMONS Management of Accumulators (ed. 3) II.ii. 97 Wall plugs are most useful about a house for attaching a portable lamp or small motor at will. Ibid. 98 The portable lamp has a reel of twin wire at its base, with the ends of wires going to the lamp-holder and a connector respectively. This connector fits the wall plug by pushing in the two pins it carries. 1890 Ibid. (ed. 5).ii. 166 Mr. Taylor Smith's pattern of portable lamp has a reel of twin wire in its base, with the ends of the wires going to the lamp-holder and a connector plug respectively. The two pins of this plug are pushed into the wall connector... to obtain the light. 1891 F. C. ALLSOP Telephones vi.97 When the plug is inserted between the two blocks..., the circuit is closed. 1892 - Pract. Electr.-Light Fitting v. 72 When the plug... is inserted in the socket,... the lamp can be lighted. 1923 T.E. HERBERT Teleph. xiii. 316 It is particularly important that during the insertion of the plug the two springs of the jack shall not be short circuited. 1929 E.A. ROBERTSON Three came Unarmed vii. III Nonie was... stooping to fix into a wall-plug the flex of the standard lamp. 1945, etc. [see PIN sb. ¹1m]. 1960 H. PINTER Caretaker II.48 There used to be a wall plug for this electrolux. 1972 village Voice (N.Y. ) 1 June 5/4 The whole point of the call, her thinking I was a plug into good connections. 1976 D. PHILLIPS Planning your Lighting 13/1 A power point with an outcrop of plugs and flexes feeding a number of different items of equipment is still a common sight.''

The ``safety fusible plugs'' of the 1883 example may be the precursors of the fuses which preceded over voltage protection cassettes. In the 1891 example also ``the plug'' may be the fuse and ``the blocks'' may even be the terminating blocks of a main distribution frame. But in this country in and after 1945 the meanings of the word, in reference to electricity in consumers' premises, in common parlance have been those given in the Oxford English Dictionary and given second in the Macquarie Dictionary, as I find. And I hold that the word has always been used in item 90C in the senses in which it has been used in common parlance. It may be possible to say of an over voltage protection cassette that it has as a component part a plug within the meaning of that word which is given first in the Macquarie Dictionary. But that is only a part of the device, which itself would not in common speech be called a plug. Further, I do not find that the meaning given first in the Macquarie Dictionary is or at any time since 1945 was a meaning intended in common speech.

It was submitted by Mr. Forsyth, but denied by Mr. Merkel, that over voltage protection cassettes were ``[e]lectrical safety devices for the protection of persons'', within the meaning of paragraph 90C(2)(c). There was uncontradicted evidence that direct lightning strike to an exposed pair of telephone service wires outside the telephone exchange or a lightning strike to ground under or near which a pair of such wires is placed may result in the flow along that circuit of electricity of a voltage and current dangerous to human health. Within a telephone exchange such a surge of current in contact with a person or in contact with a conductive tool (such as the terminating tool to which reference has been made) which affords a conductive path to the person may injure, and possibly kill, the person. Such a surge may cause within a telephone exchange a fire dangerous to persons in the exchange. Similar consequences may attend contact between a pair of telephone service wires and a conductor of electricity generated by an electric supply authority.

The over voltage protection cassette is designed to operate to earth current of 230 or more volts. That is called the nominal firing voltage. When current induced by lightning strike is passing through the device at a rapidly increasing voltage the operation of the device may require 350 to 450 volts. That is called the impulse firing voltage. The maximum direct current voltage expected in a telephone service circuit under normal conditions is about 190 volts. The nominal firing voltage is selected in order to avoid interruption of the circuit under those conditions. That selection and the technical characteristics of the device determine the impulse firing voltage.

No over voltage protection device is provided at the main distribution frame of an exchange the equipment of which is analogue and not digital. The over voltage protection cassette is used, and was specifically designed, in order that the digital exchange equipment be

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ATC 4411

protected. A working party reporting to the applicant in or about 1986 its review of over voltage protection at main distribution frames included this passage in its report:

``The effect on personnel of overvoltage protection or the lack of it is important. However, this is an intricate and difficult problem and issue to address. So, although several papers have been tabled for illustration of the problem of overvoltage on personnel (see Appendix 6) the working party has concentrated on the effect of overvoltage on the operation and performance of the equipment and in particular the exchange equipment. Having specified the protection of the exchange and the subscriber terminal, there should be an investigation or at least monitoring of the effect of the new protection practices on personnel.''

There was evidence, but not from any medically qualified person, that the operation of an over voltage protection cassette would obviate serious physiological harm to a person in contact with the interrupted circuit. But other evidence justified an inference that human contact with a telephone circuit carrying current at a voltage below the nominal firing voltage of the cassette involved a risk of serious physiological harm.

The preposition ``for'' in paragraph 90C(2)(c) requires, in my opinion, that one purpose for which the electrical safety device is brought into existence as goods is the protection of persons from harm by electrical current. The evidence does not persuade me that any person, either the manufacturer, Siemens, or the purchaser, the applicant, had that purpose. Further, if consideration of subjective purpose be excluded, I am not persuaded that a consideration of the goods, informed by the evidence of its function and operation and by such meagre information as the evidence and judicial notice afforded of the effect of electrical current on persons, enables me to identify them as within the description contained in paragraph 90C(2)(c).

I will hear counsel for the parties concerning the orders to be made.