Amcor Packaging (Australia) Pty Ltd v Chief Executive Officer of Customs

[2002] FCA 811

FEDERAL COURT OF AUSTRALIA

Amcor Packaging  (Australia) Pty Ltd v Chief Executive Officer of Customs [2002] FCA 811

AMCOR PACKAGING (AUSTRALIA) PTY LTD v CHIEF EXECUTIVE OFFICER OF CUSTOMS

N1430 OF 2001

JACOBSON J
25 JUNE 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1430 OF 2001

BETWEEN:	AMCOR PACKAGING (AUSTRALIA) PTY LTD (ACN 004 275 165) trading as AMCOR FOOD CANS AUSTRALIA APPLICANT
AND:	CHIEF EXECUTIVE OFFICER OF CUSTOMS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	25 JUNE 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. That the respondent, on or before 10 July 2002, provide discovery of:

(a)The disk attachments B and C to the Confidential Trade Measures Branch Report No. 26; and

(b)The confidential minute paper dated 20 July 2002 entitled “Decisions on Normal Value Report.”

2. That the respondent pays the applicant’s costs of and associated with this notice of motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1430 OF 2001

BETWEEN:	AMCOR PACKAGING (AUSTRALIA) PTY LTD(ACN 004 275 165) trading as AMCOR FOOD CANS AUSTRALIA APPLICANT
AND:	CHIEF EXECUTIVE OFFICER OF CUSTOMS RESPONDENT

JUDGE:	JACOBSON J
DATE:	25 JUNE 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In August 2001 Mr L J Roux, a delegate of the Chief Executive Officer of Customs, made a decision not to accept an application lodged under s 269V of the Customs Act 1901 (“the Act”) for the assessment of duty on goods imported from Taiwan.

2. On 20 September 2001 Mr Roux provided a Statement of Reasons in which he said that he considered that the application did not provide any information to establish the claimed normal value of the goods as required by s 269W(1)(c) of the Act.

3. The applicant in these proceedings (“Amcor”) seeks to review Mr Roux’s decision under either the Administrative Decisions (Judicial Review) Act 1977 or, alternatively under s 39B of the Judiciary Act 1903.

4. One of the issues, which will arise at the hearing, is whether the application dated 9 July 2001 was a valid application under ss 269V and 269W of the Act. That is to say, was Mr Roux entitled under the Act to dismiss the application on the ground that it did not contain information necessary to establish the claimed normal values required by s 269W(1)(c).

5. In his Statement of Reasons dated 20 September 2001, Mr Roux said that, in making his decision, he had regard to a number of documents including a confidential Trade Measures Branch Report No. 26 “Tinplate from Taiwan and the United Kingdom” dated 3 October 2000 (“the Branch Report”).

6. By Notice of Motion filed on 13 June 2002, Amcor seeks discovery of the disk attachments B and C to the Branch Report.  Amcor also seeks discovery of a Confidential Minute Paper dated 20 July 2000 entitled “Decisions on Normal Value Report” (“the Confidential Minute Paper”).

7. I heard the Motion on 18 June 2002.  In my view, Amcor is entitled to discovery of the disk attachments to the Branch Report and also to the Confidential Minute Paper.  I will set out my reasons below.

8. The question of whether the application under s 269V of the Act was valid depends upon whether Amcor was required, in particular under part XVB Division 4 of the Act, to specify in its application every piece of information which was necessary to establish the normal value or the export prices of the goods.

9. Mr Leeming, Counsel for Amcor, submitted that the Act provides a number of ways by which Mr Roux could have obtained the necessary information. One such source was said to be from Customs’ own internal documents. Mr Leeming also submitted that since Mr Roux had dismissed Amcor’s application of 9 July 2001 on the ground that it was not possible for him to do the work which the statute required, it must be relevant to know what other information was in his possession.

10. Mr Kennett, who appeared for the respondent, submitted that the documents were not relevant because s 269W(1)(c) required that the application contain all the material necessary to support the calculation of the normal value and the export price of the goods. Accordingly, he said that documents which were not supplied by Amcor and, which indeed, may have been referred to by the respondent for the purpose of determining the amount of interim duty, could not be relevant to the present application.

11. Mr Kennett’s approach to the construction of the Act may be correct. I have not, of course, reached a firm view one way or the other at this stage of the proceedings. However, I accept Mr Leeming’s submissions on the question of relevance. In his submission, the question, which will arise at the hearing, is whether Mr Roux, as delegate of the respondent, was correct to dismiss the application as not being a valid application under the Act. The answer to this question will turn, at least in part, upon whether the delegate was entitled to have regard to its own internal documents and also, whether there was anything in those documents which would have enabled him to process the application.

12. It follows from what I have said above that it is unnecessary for me to determine the other basis upon which Amcor contended that it was entitled to the disks, namely that the respondent was required to discover them because they were attachments to the Branch Report and that they were therefore discoverable pursuant to orders made by Beaumont J on 14 February 2002.

13. Accordingly, I propose to make orders in terms of paragraphs 1 and 2 of the Notice of Motion.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             25 June 2002

Counsel for the Applicant:	Mark Leeming
Solicitor for the Applicant:	Speed and Stracey
Counsel for the Respondent:	Geoffrey Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 June 2002
Date of Judgment:	25 June 2002