Fishy questions for the Federal Court

By Jocelyn Kellam and Andrew Morrison.

Key Points:
The financial impact flowing from these types of decisions means that issues of interpretation will continue to be litigated.

Food law is bedevilled by technical meanings and definitions which sometimes don't seem to bear much resemblance to what's on the plate. Two recent decisions highlight the definitional difficulties, which we'll look at in this article.

The two cases also illustrate the willingness of the courts to interpret legislative provisions in line with its common meaning and to take a commonsense approach to statutory interpretation.

A mincing of words?

According to the Customs Tariff Act 1995 (Cth), tuna that is "fish whole or in pieces, but not minced" attracts a 5 percent duty, but minced fish is duty free. In H J Heinz Company Limited v Chief Executive Officer of Customs [2005] FCA 291 (23 March 2005), the applicant imported tins and pouches of cooked tuna labelled as "chunk", "shredded", "sandwich" and "flaked" tuna. Were they all in fact "minced", or were they just "in pieces, but not minced"?

The answer might seem obvious, but nonetheless the case went through the Administrative Appeals Tribunal and the Federal Court. In the result, the fish was held to be in pieces and not minced because:

• The phrase 'fish in pieces' bears its ordinary meaning. It is not limited to 'large pieces'.
• Other fish products, such as hake, cod or mackerel are commonly 'minced' eg. for further processing into fish fingers or fish patties or related products. Tuna by contrast is not commonly minced because the inedible meat could not be separated if the fish were minced before cooking. If it was 'minced' after cooking the result would probably be a paste.
• The tuna in the imported items had retained its structural integrity. Although the size of the tuna flesh contained in the cans had been reduced by various means, it had an identifiable structure, which minced tuna would not have.

As a result, the chunky or shredded tuna could not be called "minced" and so it attracted duty.

Fast food or slow delight?

The flipside to this definition-driven approach is the commonsense decision in Owners Corp Strata Plan v Charbel CJ Pty Ltd [2004] NSWSC 1286 (10 March 2005).

A classy seaside apartment building had retail space on either side of the main entrance. The strata management statement restricted the use of the retail shops:

"The Residential Owners and the Retail Owners acknowledge that the Retail Shops may be used and open for trade as restaurants or other commercial use in accordance [with] current trading hours approved by Manly Council. The owners of the Retail Shops must not use the Retail Shops as a fast food outlet." [emphasis added]

On one side was an Oporto Chicken shop, on the other a business called Sea King Seafood. Both shops sold food, but was that food "fast" and thus in breach of the strata management statement?

A private investigator was sent in to gather evidence. The undercover gourmet observed the plastic cutlery, the bins for food wrappers, the computerised ordering system, and the lack of a maître d'. Customers could either eat-in or takeaway, and collected their food from the counter. Behind the scenes in the kitchen, food was prepared in bulk in readiness for the day's trading.

The judge said that:

"Neither of the Defendants' restaurants is the kind of place where wine and conversation enrich the long slow savours of anticipation while in the kitchen the aim is to create something special to titillate the appetite of the most exacting deipnosophist."

If that's the standard that lifts an eatery out of the fast-food category, then most eating establishments would fall short. Luckily the judge focussed on "the essential ideas of quick service and of the style of food and establishment associated with that quick service", characteristics which are consistent with most people's ideas of fast food and which he said were to be found in both shops. As a result, he granted injunctions to prevent the businesses from carrying on in that building.

An end to Latin maxims?

In the past, courts and lawyers have been fond of Latin maxims such as noscitur a sociis (one is known by the company one keeps), ejusdem generis (of the same kind) and expressio unius est exclusio alterius (to mention one thing may exclude others).

In the 21st century, however, these maxims have been replaced by plain English. But can corporations facing litigation take comfort?

The short answer is no. It is open to the courts to take a number of different approaches to statutory interpretation. These approaches include taking a literal approach, adopting the ordinary meaning of the words or examining the underlying purpose of the legislation. These approaches are also subject to a number of presumptions - for example, that legislation is not intended to be retrospective, that a penal provision should be narrowly interpreted and should not offend commonsense.

It might seem unproductive that so much effort goes into the legal analysis of apparently simple terms. However, the financial impact flowing from decisions such as those above means that issues of interpretation will continue to be litigated.

Still confused? Perhaps Lewis Carroll had the right approach. In "Through the Looking Glass", Humpty Dumpty observes "When I use a word it means just what I choose it to mean - neither more nor less". Or perhaps the King in "Alice in Wonderland" was correct "…if there is no meaning in it, that saves the world a lot of trouble, you know as we needn't try to find any."

For further information, please contact Jocelyn Kellam and Andrew Morrison.