Basecape Pty Ltd and Australian Trade and Investment Commission

This matter concerned an appeal by Basecape Pty Ltd against a decision by the Australian Trade and Investment Commission (the Respondent) regarding an application for an Export Market Development Grant (EMDG). The core dispute revolved around whether the product, WPallimport, constituted eligible know-how under the EMDG Act, specifically whether it resulted to a substantial extent from research or work done in Australia. The decision was made by Mrs J C Kelly, Senior Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether WPallimport was an eligible product for the purposes of the EMDG Act, and whether it qualified as eligible know-how. This required the Tribunal to determine if the product, despite having its coding undertaken overseas, resulted to a substantial extent from research or work conducted in Australia, as stipulated by section 27 of the EMDG Act. The Tribunal also considered the definition of "substantial" in this context.

The Tribunal reasoned that the statutory test under section 27 of the EMDG Act focuses on whether the eligible know-how resulted to a substantial extent from research or work done in Australia, not whether the research or work itself was substantial. It found that the Applicant's concept for WPallimport, which involved "drag and drop" functionality for importing data onto WordPress websites, was the substance of the product and was conceived and developed through research and work done in Australia. While the coding was performed overseas, the Tribunal viewed this as the execution of the Applicant's Australian-conceived idea. The Tribunal concluded that WPallimport, as it existed in the relevant grant year, resulted to a substantial extent from both the Applicant's idea and the subsequent coding. Therefore, the Tribunal was satisfied that WPallimport constituted eligible know-how under section 27(1) of the EMDG Act, making the application for an eligible product under section 107 of the Act.

Consequently, the Tribunal set aside the reviewable decision and remitted the matter to the Respondent for reconsideration in accordance with the finding that WPallimport is eligible know-how and therefore an eligible product under the EMDG Act.