Australian Trade Commission v W.A. Meat Exports Pty Ltd
[1987] FCA 413
•29 JULY 1987
Re: AUSTRALIAN TRADE COMMISSION
And: W.A. MEAT EXPORTS PTY. LTD.
No. WAG49 of 1987
Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)
CATCHWORDS
Practice and Procedure - appeal from Administrative Appeals Tribunal - motion for stay of implementation of Tribunal decision - principles applicable - Administrative Appeals Tribunal Act s.44A - need to show purpose of securing effectiveness of hearing and determination of appeal - no such purpose shown - motion dismissed.
Export Market Development Grants Act 1974
Administrative Appeals Tribunal Act 1975 s.44A
HEARING
PERTH
#DATE 29:7:1987
Counsel for the Applicant: Miss I. Petersen instructed by: Australian Government Solicitor
Counsel for the Respondent: Mr J.T. Schoombee instructed by Keall Brinsden
ORDER
The motion is dismissed.
The applicant to pay the respondent's costs of the motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 14 April 1986 the Export Grant Developments Board ("the Board"), acting under the provisions of the Export Market Development Grants Act 1974 made a determination that W.A. Meat Exports Pty Ltd ("W.A. Meat") was entitled to a grant of $72,916.00 based upon eligible expenditure of $102,023.00 incurred by that company.
In the notification of the determination W.A. Meat was advised that consultant's fees of $60,000.00 which it had paid to a company called Allegro Pty Ltd ("Allegro") had been deducted from claimed expenditure for the purpose of assessing the amount of the grant.
The reason for the deduction was that Allegro was held to be a prescribed associate of W.A. Meat within sub-s.4(8) of the Act.
The Act provided for grants to be made by the Board, now succeeded by the Australian Trade Commission ("the A.T.C."). The grants are calculated according to eligible expenditure being expenditure incurred primarily and principally for the purpose of creating or seeking opportunities or creating or increasing demand for the export of Australian goods.
The grant entitlement of any claimant is an amount equal to 70% of eligible expenditure incurred by the claimant during a grant year (s.15).
"Eligible expenditure" and "expenditure" are defined in s.4 of the Act. Expenditure purposes in that section do not include amounts paid to a "prescribed associate".
A "prescribed associate" is defined in sub-s.4(8) and includes in para. (c) of that definition:-
" . . . any person determined by the Commission to be a person not at arm's length with the claimant . . . . "
The Board's determination that Allegro was a prescribed associate was based upon a finding that it was not at arm's length with W.A. Meat.
W.A. Meat appealed against that determination to the Administrative Appeals Tribunal and on 8 April 1987 the Tribunal set aside the decision under review and remitted it to the A.T.C. for reconsideration.
In remitting the matter the Tribunal directed that the sum of $60,000.00 paid to Allegro in the 1984-85 year qualifies as expenditure within sub-s.4(2) of the Act.
Provided that the A.T.C. accepts that the $60,000.00 was eligible expenditure, then under s.12 of the Act it would appear obligated to determine the grant entitlement accordingly.
Such a determination gives rise to an obligation to pay the claimant.
The A.T.C. has instituted an appeal to the Full Federal Court against the decision of the Tribunal.
The principal ground of the appeal is that the Tribunal misdirected itself in law and that on the primary facts it found, it should not have determined that Allegro was at arm's length from W.A. Meat.
The appeal was instituted on 6 May 1987.
On 29 June 1987 the A.T.C. filed a motion seeking an order that the operation and implementation of the decision of the Tribunal be stayed until the determination of the appeal.
The motion is brought under s.44A of the Administrative Appeals Tribunal Act which provides:-
"44A(1) Subject to this section, the institution of an appeal to the Federal Court of Australia from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2) Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:
(a) the decision of the Tribunal or a part of that decision; and
(b) the decision to which the proceeding before the Tribunal related or a part of that decision,
as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.
(3) Where an order is in force under sub-section
(2) (including an order that has previously been varied on one or more occasions under this sub-section), the Federal Court of Australia or a Judge of that Court may make an order varying or revoking the first-mentioned order.
(4) An order in force under sub-section (2) (including an order that has previously been varied on one or more occasions under sub-section (3)) -
(a) is subject to such conditions as are specified in the order; and
(b) has effect until -
(i) where a period for the operation of the order is specified in the order - the expiration of that period or, if a decision is given on the appeal before the expiration of that period, the giving of the decision; or
(ii) where no period is so specified - the giving of a decision on the appeal."
In an affidavit filed in support of the motion Mr P. Boys, the manager of the Export Grants Division of the A.T.C. said:-
"2. Funds for the payment of grants under the Export Market Development Grants Act 1974, as amended, are appropriated by Parliament annually.
3. The Budget allocation for 1986/87 was $102 million. The allocation was exhausted by May 1987 and grant payments could not resume until 1 July 1987.
4. In the event that an overpayment is detected and the grant monies repaid by a claimant, such payments are paid into a consolidated revenue account and are not re-allocated to the Commission for grant purposes. Consequently the total grant monies available to other eligible claimants under the scheme is reduced by the amount of each overpayment.
5. The Applicant has sought a stay on the operation and implementation of the Administrative Appeals Tribunal's decision given on 8 April 1987, pending the outcome of the Federal Court appeal, for the reasons outlined in paragraph 4."
It appears likely that if it proceeds to implement the Tribunal's decision the A.T.C. will be bound pursuant to sub-s.12(2) to pay the additional grant entitlement to the claimant.
The point of Mr. Boys' affidavit seems to be that if the payout is made and the appeal is successful, then the money paid would only be recoverable into consolidated revenue and not back into the total grant moneys available to the A.T.C.
This is an unattractive argument. It is difficult to see why a claimant should be prejudiced and kept out of funds to which it would otherwise be entitled, by reason of internal difficulties of the kind to which Mr. Boys has referred.
Unlike the provisions of s.29 of the Federal Court of Australia Act and 0.52 r.17, the power to order a stay under the Administrative Appeals Tribunal Act is conditioned by the purpose of "securing the effectiveness of the hearing and determination of the appeal".
There is no suggestion that in the event of the appeal being successful any money paid over to the appellant pending the hearing of the appeal, would be irrecoverable.
Indeed W.A. Meats has undertaken to the court to repay the total amount paid to it resulting from the decision of the Tribunal in the event that that decision is quashed or set aside or in any way altered or varied by the Federal Court of Australia.
Nor is there any other basis suggested upon which it can be argued that the purpose of securing the effectiveness of the hearing and determination of the appeal would be advanced by making a stay order.
In the circumstances, I do not perceive any proper basis upon which the order of the Tribunal ought to be stayed and I will dismiss the motion.
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