Alstom Transport Australia Pty Ltd and Comptroller-General of Customs
[2023] AATA 3498
•27 October 2023
Alstom Transport Australia Pty Ltd and Comptroller-General of Customs [2023] AATA 3498 (27 October 2023)
Division:Taxation and Commercial Division
File Number(s): 2018/3711
Re:Alstom Transport Australia Pty Ltd
APPLICANT
AndComptroller-General of Customs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:27 October 2023
Place:Sydney
The correct and preferable decision is that the reviewable decision of 31 May 2018 is set aside, and remitted to the Respondent for reconsideration with the direction that the TCO application the subject of this review be granted.
..............................[SGD].......................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
CUSTOMS – Tariff Concession Order – good subject of application described as driverless trains – substitutable goods claimed – goods claimed to be substitutable produced in Australia in ordinary course of business - uses to which good subject of the application are put or can be put – uses to which goods claimed to be substitutable are put or can be put – locally produced goods not substitutable
Legislation
Customs Act 1901 (Cth) ss 269C, 269D, 269E, 269F, 269FA, 269H, 269HA, 269P, 269SJ
Cases
Alstom Transport Australia Pty Ltd v Comptroller-General of Customs (2020) 275 FCR 652
Comptroller-General of Customs v Alstom Transport Australia Pty Ltd (2022) 293 FCR 381
Nufarm Australia Ltd v. Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
27 October 2023
BACKGROUND:
I note the written submissions of the parties contain a helpful factual summary of the background of this matter, much of which is replicated below.
On 4 August 2017, the Applicant lodged an application for a Tariff Concession Order (TCO).
Following some discussion between the Applicant and the Respondent, the following wording for the proposed TCO was published in the Gazette notice of the application:
TRAINS, driverless, single deck, including ALL of the following:
(a) Six integrated AND interdependent AND electronically interfaced cars including ALL of the following:
i.two trailer cars;
ii.two motor cars;
iii.two motor cars with pantograph;
(b) maximum carrying capacity of NOT less than 1540 passengers;
(c) under-frame mounted driverless train control AND management systems interfaced with ALL of the following:
i.traction AND braking system;
ii.door operation system;
iii.remote train control AND monitoring system;
(d) closed circuit television;
(e) passenger announcement AND information display units with route maps;
(f) roof mounted heating AND ventilation AND air conditioning (HVAC) with a cooling capacity of NOT less than 35 kW per unit AND a heating capacity of NOT less than 10 kW per unit;
(g) maximum speed NOT less than 100 km/h
On 27 November 2017, Downer lodged an objection to the TCO. The objection was made by Downer on behalf of EDI RAIL – Bombardier Transportation Pty Ltd, a joint venture between Downer and Bombardier Transportation. The claimed substitutable goods produced in Australia were described as follows:
Our locally produced substitutable goods are the EDI RAIL – Bombardier Transportation Pty Ltd single deck ‘B’ series trains, of which there are 58 x 3 Car Sets operating in Perth Western Australia with a further 10 Sets on order. These 3 Car Sets can be utilised either as a 3,6 or 9 Car Set. Built specifically for Australian conditions they have the following features:
(a) three integrated, interdependent, electronically interfaced cars including the following:
(i) one trailer car;
(ii) two motor cars with pantograph;
(b) carrying capacity of 1206 passengers;
(c) closed circuit television;
(d) passenger announcement and information display units with route maps;
(e) state-of-the art roof mounted heating, ventilation and air-conditioning (HVAC) system providing improved reliability and energy efficiencies;
(f) speeds of up to 130 km/h
The stated use for the Downer goods were as follows:
Specifically designed for the Australian passenger market, the B series train is utilised to transport passengers on a high capacity metropolitan train network.
Downer’s objection also referred to trains that would be manufactured at Downer’s manufacturing facility at Newport for the High Capacity Melbourne Train (HCMT) system, and at the time projected that this fleet would commence revenue service in March 2019.
On 2 February 2018, the Respondent decided to refuse the Applicant’s TCO application pursuant to s 269P(1) of the Customs Act 1901 (Cth) (the Act).
On 5 March 2018, the Applicant applied for internal review of the refusal.
On 31 May 2018, an internal reviewer affirmed the decision to refuse to grant a TCO to the Applicant, pursuant to s 269SH of the Act. The Applicant applied to the Administrative Appeals Tribunal for review of this decision.
On 17 June 2019, the Tribunal affirmed the decision under review. An appeal by the Applicant to the Full Federal Court was successful and the matter was remitted to the Tribunal.
On 19 October 2021, the Tribunal remitted the reviewable decision to the Respondent for reconsideration, with the direction that the TCO should be accepted. An appeal by the Respondent to the Full Federal Court was successful, and the matter was remitted to the AAT for re-determination according to law.
LAW & POLICY:
The Comptroller-General of Customs is required by s 269P of the Act to make a TCO if satisfied that ‘the application meets the core criteria’.
S 269C provides that a TCO application meets the ‘core criteria’ if:
on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business.
(a)‘substitutable goods’ are defined in ss 269B(1) of the Act as follows:
substitutable goods, in respect of goods the subject of a TCO application or of a TCO, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put.
(i) A corresponding use is further defined in ss 269B(3) as:
In determining whether goods produced in Australia are put, or are capable of being put, to a use corresponding to a use to which goods the subject of a TCO, or of an application for a TCO, can be put, it is irrelevant whether or not the first-mentioned goods compete with the second-mentioned goods in any market.
(ii) Goods produced in Australia are defined in ss 269D(1) of the Act as:
For the purposes of this Part, goods, other than unmanufactured raw products, are taken to be produced in Australia if the goods are wholly or partly manufactured in Australia.
(iii)According to section 269D(2), goods are taken to have been partly manufactured in Australia if:
… at least one substantial process in the manufacture of the goods was carried out in Australia.
(b)Section 269E(1) defines ‘the ordinary course of business’, in relation to goods which are not made-to-order capital equipment:
For the purposes of this Part, … goods (other than made-to-order capital equipment) that are substitutable goods in relation to goods the subject of a TCO application are taken to be produced in Australia in the ordinary course of business if:
(a) they have been produced in Australia in the 2 years before the application was lodged; or
(b) they have been produced, and are held in stock, in Australia; or
(c) they are produced in Australia on an intermittent basis and have been so produced in the 5 years before the application was lodged;
and a producer in Australia is prepared to accept an order to supply them.
Section 269SA(1) provides for a TCO of a limited duration where a TCO application meets the core criteria, but production of substitutable goods in Australia begins after the application is lodged:
(1) If the Comptroller-General of Customs is satisfied, in relation to a TCO application:
(a) that the application meets the core criteria; and
(b) that on a day (the production start-up day) occurring later than the day on which the application was lodged but before the making of the decision on the application, substitutable goods in relation to the goods the subject of the application commenced to be produced in Australia; and
(c) that if the production start-up day had occurred on the day on which the application was lodged, the Comptroller-General of Customs would not have been satisfied that the application met the core criteria;
the TCO that the Comptroller-General of Customs makes continues in force only until the production start-up day.
Section 269SJ prevents TCOs being made in relation to goods ‘described in terms other than generic terms’, or ‘described in terms of their intended end use’, as follows:
(1) The Comptroller-General must not make a TCO in respect of goods:
(aa) described in terms other than generic terms; or
(a) described in terms of their intended end use; or
…
(1A) Without limiting the meaning of the reference in paragraph (1)(aa) to goods described in generic terms, goods are taken not to be so described if their description, either directly or by implication, indicates that they are goods of a particular brand or model, or that a particular part number applies to the goods.
Subsection 269HA(1) provides:
(1) If, at any time during the period starting from the receipt of a TCO application and ending with the making of a TCO, the Comptroller-General of Customs becomes satisfied that the goods to which the application relates are goods in respect of which, under subsection 269SJ(1), the Comptroller-General of Customs is prevented from making a TCO, the Comptroller-General of Customs must:
(a) reject the application; and
(b) by notice in writing given to the applicant, inform the applicant that the application is rejected and of the reason for the rejection.
Roberson J, in the case of Nufarm Australia Ltd v. Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757 set out the ‘practical analysis’ as the sequence of tasks the statutory scheme sets out:
(i)What are the goods subject of the TCO?
(ii)To what use or to what uses can the TCO goods be put?
(iii)What are the goods claimed to be substitutable?
(iv)To what use or to what uses are they put or are they capable of being put?
(v)Are any of the uses in (ii) or (iv) corresponding uses.
ISSUE:
The task of the Tribunal in this matter is to determine whether the application for a TCO meets the ‘core criteria’ for the purposes of s 269C of the Customs Act.
As both parties agree on the test to be applied, namely the test enunciated by Robertson J in Nufarm, the issue before the Tribunal is whether, by the application of the agreed test, the Applicant is eligible for a tariff concession order.
A related issue is whether, should the Tribunal decide to grant the TCO, it be granted only for the period of 4 August 2017 to 19 December 2018 pursuant to s269SA(1) of the Act, due to the more recent production of locally produced goods - the HCMT trains.
DECISION
This matter has had a rather long history before the Tribunal and has been remitted by the Federal Court on two occasions.
All of the evidence previously before the Tribunal remains before the Tribunal, along with additional material filed. It is well settled that the decision of the Tribunal is substituted for the decision of the original decision maker, in this matter namely the Comptroller of Customs.
It appears that the Respondent previously sought, but no longer seeks to rely on Downer’s ability to produce substitutable goods pursuant to s 269E(2). Instead, the Respondent has now limited their submissions to say that the TCO goods and the locally produced goods are substitutable pursuant to s 269C of the Act.
The parties are in agreement that the goods which are said to be substitutable are produced in Australia in the ordinary course of business. Accordingly, both parties submit that whether the core criteria are met depends on whether the Tribunal is satisfied that the trains identified by the Respondent are substitutable (locally produced goods) for the trains subject to the TCO application (TCO goods), following an analysis according to the ‘practical guide’ set out in Nufarm.
Turning now to the test in Nufarm, Robertson J enunciated that test as follows:
(i)What are the goods subject of the TCO?
(ii)To what use or to what uses can the TCO goods be put?
(iii)What are the goods claimed to be substitutable?
(iv)To what use or to what uses are they put or are they capable of being put?
(v)Are any of the uses in (ii) or (iv) corresponding uses?
The task for the Tribunal is to look at each limb of the test enunciated above and to consider the arguments of the parties in relation to each limb, before making relevant findings of fact.
Essentially, the Applicant claims that there is no substitutable product made in Australia at the relevant time for the trains produced by it, which meet the requirements for the Sydney Metro North-West network. The TCO goods are automated, driverless and will operate on a closed network from North-west Sydney to Chatswood.
The Applicant accepted that there were a number of potential objectors including ‘Downer – EDI’, on the basis set out in its detailed objection.
PRELIMINARY FINDINGS
The Applicant provided to the Tribunal and the Respondent a table which showed the differences between the Applicant’s train and the trains relied upon the Respondent, which is reproduced as follows:
Downer’s B Series Trains
TCO Goods
The Ed Rail – Bombardier Transportation Pty Ltd single deck ‘B’ series trains.
These 3 Car Sets can be utilised either as a 3, 6 or 9 Car Set.
Trains, driverless, single deck, including ALL of the following:
Three integrated, interdependent, electronically interfaced cars including the following:
- One trailer car
- Two motor cars with pantograph
6 integrated AND interdependent AND electronically interfaced cars including ALL of the following:
- Two trailer cars;
- Two motor cars;
- Two motor cars with pantograph
Carrying capacity of 1206 passengers in a 6 car set, with capacity of 1809 passengers in a 9 car set
Maximum carrying capacity of NOT less than 1540 passengers
(not described)
Under frame mounted driverless train control AND management systems interfaced with ALL of the following:
- Traction AND braking system;
- Door operation system;
- Remote train control AND monitoring system
Closed circuit television
Closed circuit television
Passenger announcement and information display units with route maps
Passenger announcement AND information display units with route maps
State-of-the-art roof mounted heating, ventiliation and air conditioning (HVAC) system providing improved reliability and energy efficiencies
Roof mounted heating AND ventilation AND air conditioning with a cooling capacity of NOT less than 35 kW per unit AND a heating capacity of NOT less than 10kW per unit
Speeds of up to 130km/h
Maximum speed not less than 100km/h
The Respondent said that the central error in the Applicant’s case related to the description of the goods, and further that the Applicant seeks to conflate the description of the TCO goods, with the identification of uses of the TCO goods, as high frequency, metropolitan trains.
The Tribunal was referred to a large number of decisions of this Tribunal and of the superior Courts. In the course of considering the issue before the Tribunal I have reviewed those decisions. In doing so, I note that the decisions of the Tribunal, whilst helpful in demonstrating the approach other Members have taken, are ultimately determined by the facts of the particular case. Further, the other cases quoted were of varying degrees of relevance and I refer directly in this judgement only to those decisions of the Full Court of the Federal Court which are most relevant and which are binding on this Tribunal. To quote extensively from other material would seem unnecessary and simply, add to the length of the decision which must turn on its own facts.
Grades of Automation
The Respondent drew the Tribunal’s attention to the second Federal Court decision in this matter, where the court said that TCO goods are any goods which fall within the description of the goods in the TCO application, and that the description must be in generic terms and not in terms of their intended end use.
In light of that decision, the Respondent submitted that although the TCO goods are goods with certain features, the TCO goods are not limited to GoA4 goods, but includes trains with some GoA4 features, such as GoA3 trains with automatic door operation.
There was considerable discussion about the Grades of Automation as set out in the following table:
The decision in Nufarm warns against a scientific, or in this case, a technologically driven approach to analysing whether a good is ‘substitutable’. I note that the descriptions of the TCO goods and the locally produced goods are not expressed in terms which relate to, or correspond with the above table and therefore, it does not seem necessary to rely on the above table to distinguish the goods for the purposes of the applicable test.
HCMT trains
There was evidence given to the Tribunal regarding the HCMT trains was summarised in the Respondent’s Statement of Facts, Issues and Contentions as follows:
(a) While the Perth B series trains produced by Downer were GoA1, the HCMT were designed to integrate with Melbourne’s High-Capacity Signalling to enable GoA2 operation. The result is that the HCMT will run from station to station under automatic train control. The driver is ‘responsible for door control and managing emergency situations only’.
(b) The GoA2 on-board systems installed on the HCMT are readily upgradeable to GoA4 unattended train operation.
(c)The trains produced as HCMT are ‘very similar to the Sydney Metro trains’. The main differences are that the former has a driver’s cab and will normally operate at the level of GoA2 on Melbourne’s lines, whereas the latter does not have a driver’s cab and will normally operate at the level of GoA4 on SMNW.
(d) The HCMT fleet was due to commence revenue service in March 2019
(e)The bogie frame; wheelset and bogie assembly; traction system; HCAV unit and seating for the HCMT originate in Australia.
(f) By 19 December 2018, the first 7 car train had been bult by Downer and 65 such 7 car trains had been ordered with manufacturing to occur at Downer’s Newport facility in Victoria.
(g) As at 20 March 2019, Downer was building a test track at Pakenham for the HCMT.
The Respondent submitted that the semi-automated operation of the HCMT qualifies them as substitutable goods in relation to the TCO goods.
The Applicant opposed this submission on the basis that the HCMT trains require a degree of driver operation.
Further, the Applicant submitted that a limited duration TCO would not be permitted by s269SA(1)(b) of the Act, as the terms of that provision specify that a limited duration TCO in the scenario where production of a substitutable good commenced on a date after the TCO application had been made, but prior to a decision being made on that application. The evidence was that the HCMT trains were first produced approximately 6 months after the internal review decision had been made.
The evidence before the Tribunal as to the HCMT train was limited. However, I note that both parties accepted that the operation of the train required significant driver intervention. The issue is not, however, central to the main issue to be decided by the Tribunal.
The Tribunal not being satisfied at this time that 269SA applies does not prevent either the affected party applying for a revocation order, nor does it prevent the Comptroller-General exercising their personal powers to revoke the TCO.
THE APPLICABLE TEST:
The first limb: What are the goods the subject of the TCO?
The description of the goods as gazetted on 4 August 2017 is as follows:
1. Trains, driverless, single deck, including ALL of the following:
a. Six integrated AND interdependent AND electronically interfaced cars including ALL of the following:
i.Two trailer cars;
ii.Two motor cars;
iii.Two motor cars with pantograph,
b. Maximum carrying capacity of NOT less than 1540 passengers;
c. Under-frame mounted driverless train control AND management system interfaced with ALL of the following:
i.Traction AND braking system;
ii.Door operation system;
iii.Remote train control AND monitoring system,
d. Closed circuit television;
e. Passenger announcement AND information display units with route maps;
f. Roof mounted heating AND ventilation AND air conditioning (HVAC) with cooling capacity of NOT less than 35kW per unit AND heating capacity of NOT less than 10kW per unit;
g. Maximum speed NOT less than 100km/h
2. Stated Use:
a. To transport passengers on a high capacity, high frequency, driverless metropolitan train line system.
The remarks of the Full Court in [the first Alstom remittal] are relevant. The Court said as follows:
Notably also, the regime ascribes great importance to the way goods are to be described in a TCO application and gives the Comptroller power to check and then address unsatisfactory descriptions be he or she ever gets to exercise the power to issue or not issue a TCO pursuant to s. 269P of the Act.
The Court also said ‘All of this supports the primacy of the description of the goods in the TCO Applications once it has been accepted by the Comptroller’.
In my opinion, the goods the subject of the TCO application are as gazetted on 4 August 2017. There is, in my view, no evidence before the Tribunal that would displace the primacy of that description.
The second limb: To what use or to what uses can the TCO goods be put?
When looking at this question the Tribunal is also guided by the remarks of the Full Court in Toyota/Alstom.
What the Tribunal was required to do therefore was to assess the goods the subject of the TCO application for their actual uses or those to which they could reasonably be put and to ask whether any Australian goods were, or could reasonably be, used for any of those purposes. [emphasis added]
The above statement, in my view, gives very strong support to the proposition that all aspects of the description of the TCO goods should properly be considered and given weight in coming to a conclusion as to the uses to which the goods are, or can, be put.
I note that in the case of Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109 the Full Court at [63] stated that it was open for the Tribunal to find that the driverless nature of the TCO goods could impact their assessed use. It was further stated by the Full Court, at [64] that it was for the Tribunal to determine whether the type of network systems on which the trains are capable of operating is relevant in determining the actual and potential uses of TCO goods.
The TCO goods cannot be described as just a train, but instead is a component of an integrated network, as evidenced by the statement of Mr Sheldon Young which was before the Tribunal in the first instance. The TCO goods and the network on which they are to operate are entirely integrated and are of no reasonable functional use if they are separated.
Having regard to the above, I find, firstly that the TCO goods are capable of operating only on a fully automated closed network, and secondly that for all practical purposes the TCO goods are only capable of reasonably being used in a driverless or automated fashion, with any manual controls only being available in an emergency situation. This distinguishes the goods in question from trains which are capable of being operated either in driverless mode or with a driver. This issue will be further considered later in these reasons.
Although the Respondent argued that the feature of automation was the means by which the use is achieved, and that the ultimate user, the passenger, would not notice the difference between the TCO goods and the goods claimed to be substitutable, I do not accept this argument.
Put simply, the passenger’s experience is not limited to one of being on a train. There are multiple other aspects of travelling by rail, such as timetabling, platform safety - including mechanisms for the operation of doors, and the specific nature of the rail network itself which define the passenger experience. The end user would certainly notice if the TCO goods were utilised on tracks unable to support them, rather than the integrated network, because they would be unable to move.
The fact that the train and the network are not able to be operated independently of each other also means that the operation of the train is not impacted by events on any other line. Independent operation and the resultant reliability is therefore an important factor for the user.
Accordingly, after proper consideration I do not accept the Respondent’s arguments outlined to the Tribunal both orally and in writing as to the sameness of the passenger experience of the TCO goods and the locally produced goods.
I note further, that TCO goods will accelerate and decelerate much more quickly, which allows them to stop more frequently and thus adds to the convenience of travel for the consumer because of lesser distances between stations. This is supported by the evidence of Mr Young who said as follows:
A metro style… is meant to be higher volume over shorter distance. So it’s faster acceleration and deceleration to the station. There’s no timetable it’s a turn up and go service, where the traditional heavy… there’s longer distance between stations, there’s more room and space to accelerate and decelerate slower, but you’re operating on a timetable.
In the event of an emergency, the passenger experience is likely to be quite different, as the TCO goods can only be moved a very short distance by a driver, at very limited speed, under emergency conditions. By contrast, the locally produced goods could be moved by a driver without any real limitation.
None of the factors referred to are, of themselves, decisive of the issue but rather must be taken as a package.
Accordingly, I find that the use of the TCO goods are: transport by electric rail, of not less than 1540 passengers, at a maximum speed of not less than 100km/h on a fully automated closed network system.
The third limb: What are the goods claimed to be substitutable?
The goods which said to be substitutable goods were described in the objection of 24 November 2017 as follows:
Our locally produced substitutable goods are the EDI Rail-Bombardier Transportation Pty Ltd single deck ‘B’ Series trains, of which there are currently 58x3 Car Sets operating in Perth Western Australia with a further 10 Sets on order. These 3 Car Sets can be utilised either as a 3, 6 or 9 Car Set. Built specifically for Australian conditions they have the following features:
A.Three integrated, interdependent, electronically interfaced cars including the following:
i.One trailer car;
ii.Two motor cars with pantograph;
B.Carrying capacity of 1206 passengers;
C.Closed circuit television;
D.Passenger announcement and information display units with route maps;
E.State-of-the-art roof mounted heating, ventilation and air conditioning (HVAC) system providing improved reliability and energy efficiencies;
F.Speeds of up to 130 km/h
Accordingly, I find that the substitutable goods are as outlined in the description provided in the objection of 24 November of 2017.
Given the weight that the Full Court has placed on the description of the TCO goods as stated in the TCO application, the third limb of this test must, in my view, be informed by the description of the claimed substitutable goods in the objection.
There was no evidence before the Tribunal which would justify any alternative approach.
The fourth limb: To what use or to what uses are they put or are they capable of being put?
The Respondent proposed the following answer to the fourth limb of the nufarm test:
Transport by electric rail, of up to 603, 1206 or 1809 passengers at any one time, at speeds of up to 130km/h.
The substitutable goods are capable of running on an established railed network. However, the description of the goods as set out in the objection makes it clear that the goods do not rely on an integrated, automated system in order to operate. In other words, they are capable of operating on an existing rail network, with the built-in limitations, eg distance between stations and integration with other networks, that may exist on that existing network.
Accordingly, I accept the Respondent’s submission on the use of the locally produced goods.
The final limb: Are any of the uses in (ii) or (iv) corresponding uses?
As might be expected, a considerable amount of time at the hearing was taken up discussing this issue.
It is not necessary for the Tribunal to canvas all of the arguments that were made, especially those which concentrated on highly technical aspects of the operation of the trains, and which were not, in my opinion, particularly helpful in answering the question. As noted previously, the Tribunal is not required to make a highly technical analysis of the goods.
I note that the Tribunal’s attention was also directed to an article on Wikipedia about driverless trains in Paris, as evidence of driverless trains and driven trains operating on a single line. The Tribunal regards this article as being of very little evidentiary value. Rather, in reaching its conclusion the Tribunal must look at the characteristics/uses of the goods claimed to have corresponding uses. Articles in Wikipedia must be approached with some caution, and in any event in reach its conclusion. I note that none of the witnesses who gave evidence before the Tribunal in the first instance were cross examined in any detail in relation to the Paris network, the subject of the Wikipedia article. Without detailed corroboration from suitably qualified experts, it is not possible to give weight to the article.
Accordingly, I give no weight to the evidence in relation the Paris metro network.
In my view, a close examination shows that, because of the features of the TCO goods, those goods claimed to be substitutable do not in fact meet the required criteria.
As noted previously, there was argument before the Tribunal as to the High Capacity Melbourne Trains (HCMT), however there was insufficient evidence before the Tribunal to determine whether those goods were in fact substitutable. Presumably this will be the subject of a TCO revocation application if such an objection were to be made in the future.
I accept that many trains, including a steam locomotive, are capable of moving passengers from point A to point B. The Tribunal also accepts that the fact that the TCO goods operate on a closed network is not, of itself, determinative of whether there is a corresponding use. Rather, in the view of the Tribunal, it is a combination of factors, unique to the TCO goods which means that the locally produced goods are not capable of corresponding use.
To say that all trains which carry passengers from point A to point B are in fact capable of corresponding use, or are substitutable for each other, is simply too wide a statement and ignores the reality of the passenger’s experience and ignores the ability of technological advances to substantially change the nature of transportation by rail.
In the current case the technology and the user experience is quite different between the TCO goods and the locally produced goods.
On the basis of the above, I am satisfied that the Respondent’s goods do not have a corresponding use.
Accordingly, the reviewable decision is set aside, and remitted to the Respondent for reconsideration with the direction that the TCO application be granted.
I certify that the preceding 76 (seventy - six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
........................................................................
Associate
Dated: 27 October 2023
Date(s) of hearing: 27 July 2023 Counsel for the Applicant: Mr I G B Roberts Solicitors for the Applicant: Mr Nick Watts Counsel for the Respondent: Ms Houda Younan Solicitors for the Respondent: Mr Roger Northcote
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