Markell v Wollaston [1906] HCA 91

Markell v Wollaston [1906] HCA 91

'Tanglefoot Sticky Flypaper' is an insecticide within the meaning of item 104 of the Customs Tariff 1902 because it is a preparation used solely or mainly for the destruction of insects, with the chemical ingredients being the substantial component and the paper a mere vehicle. The exemption applies regardless of whether death of insects is by poisoning or mechanical means. Section 138 of the Customs Act 1901 does not apply because the 'not elsewhere included' wording limits the paper/manufacture of paper categories, precluding the claimed duty.

Parties
Plaintiffs: Charles Markell and Alexander Markell trading as Markell and Co.; Defendants: H. N. P. Wollaston as The Commonwealth
Jurisdiction
Australia
Judgment Date
07 August 1906
Procedural Posture
Special Case Stated Under Order Xxix., Rule 1, of the Rules of the High Court 1903; Action for a Declaration and Injunction Regarding Customs Duty / Judgment at First Instance in the High Court of Australia
Outcome
Judgment for the plaintiffs; duty paid to be repaid with interest at 5%.
Legal Topics
Tariff Classification, Construction of Statutory Terms, Exemption From Customs Duty, Jurisdiction for Equitable Relief, Interpretation of 'insecticide'
Customs Law Statutory Interpretation Tariff Classification Construction of Statutory Terms Exemption From Customs Duty Jurisdiction for Equitable Relief Interpretation of 'insecticide'

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 20 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Charles Markell and Alexander Markell trading as Markell and Co.

Plaintiffs

H. N. P. Wollaston as The Commonwealth

Defendants

Procedural Posture

Special Case Stated Under Order Xxix., Rule 1, of the Rules of the High Court 1903; Action for a Declaration and Injunction Regarding Customs Duty / Judgment at First Instance in the High Court of Australia

Legal Issues

  1. 1 Whether 'Tanglefoot Sticky Flypaper' is an 'insecticide' within the meaning of item 104 of the Customs Tariff Act 1902 and therefore entitled to be admitted duty free
  2. 2 Whether section 138 of the Customs Act 1901 applies such that the article would become dutiable as a manufacture of paper not elsewhere included
  3. 3 Whether the remedy sought by plaintiffs (declaration, injunction, recovery of duty paid) was proper procedure

Ratio Decidendi

'Tanglefoot Sticky Flypaper' is an insecticide within the meaning of item 104 of the Customs Tariff 1902 because it is a preparation used solely or mainly for the destruction of insects, with the chemical ingredients being the substantial component and the paper a mere vehicle. The exemption applies regardless of whether death of insects is by poisoning or mechanical means. Section 138 of the Customs Act 1901 does not apply because the 'not elsewhere included' wording limits the paper/manufacture of paper categories, precluding the claimed duty.

Court Disposition

Judgment for the plaintiffs; duty paid to be repaid with interest at 5%.

Orders

  • Plaintiffs are entitled to recover the amount of duty paid (£78 1s. 4d.) with interest at 5% and the costs of the action.
  • Costs to be taxed on the highest Supreme Court scale, as more than £100 is involved.