Brambles and Australia Limited and Secretary, Department of Industry, Tourism and Resources
[2004] AATA 654
•14 May 2004
CATCHWORDS – Automotive Competitiveness and Investment Scheme
– registration as an Automotive Service Provider – decision affirmed.
ACIS Administration Act 1999 ss. 19 and 26
Brambles Australia Limited and Secretary, Department of Industry, Tourism and Resources [2003] AATA 1032
DECISION AND REASONS FOR DECISION [2004] AATA 654
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/404
GENERAL ADMINISTRATIVE DIVISION )
Re BRAMBLES AUSTRALIA LIMITED
Applicant
And SECRETARY, DEPARTMENT OF INDUSTRY, TOURISM AND RESOURCES
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Mr C Ermert (Member)
Mr W G McLean (Member)
Date: 14 May, 2004
Place: Melbourne
Decision:Noting that it has not considered any issue other than whether the applicant is the provider of automotive services in relation to the V6 Returnable Container System, the Tribunal decided that the decision of the respondent dated 15 March, 2002 is affirmed.
S A FORGIE
Deputy President
REASONS FOR DECISION
As requested by the solicitors for the applicant, Brambles Australia Limited (“Brambles”), in a letter dated 25 May, 2004, we set out written reasons for the decision we made on 14 May, 2004.
On 17 April, 2002, Brambles applied for review of a decision of a delegate of the respondent, the Secretary of the Department of Industry, Tourism and Resources (“the Secretary”) dated 15 March, 2002. That decision was to refuse an application by CHEP Australia (“CHEP”) for registration for the Automotive Competitiveness and Investment Scheme (“ACIS”) as an Automotive Service Provider (“ASP”) made pursuant to s. 26(3) of the ACIS Administration Act 1999 (“Administration Act”).
CHEP is one of the businesses owned and operated by the applicant, Brambles. The issue in the case was whether Brambles, through CHEP, had provided production services, and so automotive services. If it had done so, Brambles would satisfy one of the requirements that it was eligible to apply for registration as an ASP under s. 19 of the Administration Act. Eligibility is essential if Brambles is to be registered as an ASP under s. 26.
CHEP provides more than one service. In this case, Brambles relied on the customised returnable container system that CHEP supplies with respect to Holden’s V6 engine programme (“V6 Returnable Container System”). That system had been developed by CHEP at the invitation of Holden Limited. As the V6 Returnable Container System was but one service, it was agreed between the parties at the hearing held on 3 April, 2003, and we agreed, that we would consider whether that one system meant that CHEP had provided production services, and so automotive services, but that we should not make a final decision at that time. Rather, we should adjourn further consideration lest Brambles wished to pursue another avenue to establish that it was eligible for registration.
Having regard to the V6 Returnable Container System, we found that CHEP, and so Brambles, is not the provider of production services and so is not the provider of automotive services within the meaning of the Administration Act. We gave reasons for reaching that conclusion (Brambles Australia Limited and Secretary, Department of Industry, Tourism and Resources [2003] AATA 1032). It followed from that conclusion that Brambles did not meet a crucial requirement of s. 19 and so could not establish its eligibility to apply for ASP registration. In accordance with the position that had been previously agreed, we adjourned further consideration of the matter.
On 14 April, 2004, the parties asked us to make a decision affirming the Secretary’s decision. We were told that Brambles had presented its best case and had taken the view that it would not succeed in relation to other services. Affirmation of the decision would mean that the matter had been finally determined and Brambles could consider other options available to it. As we agreed that it was the appropriate course, we affirmed the Secretary’s decision to refuse an application by CHEP for the ACIS as an ASP made pursuant to s. 26(3) of the Administration Act. At the same time, we were conscious that we had considered only one of the activities conducted by Brambles and one of the criteria that had to be met if Brambles were to be eligible to apply for registration as an ASP under s. 19 of the Administration Act. In addition, we had not considered the other criteria that would need to be considered under s. 26(2) were we incorrect in our conclusion that Brambles is not a provider of automotive services and so was not eligible to apply for registration. Therefore, for the sake of completeness, we noted that we had not considered any issue other than whether Brambles is the provider of automotive services in relation to the V6 Returnable Container System.
I certify that the six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Mr C Ermert and Mr W G McLean (Members)
Signed: ………………………………………..
R. Crook Associate
Date of Hearing 14 April, 2004
Date of Decision 14 May, 2004
Date of Written Reasons 1 June, 2004
Counsel for the Applicant Mr M. Fleming
Solicitor for the Applicant Minter Ellison
Counsel for the Respondent Mr P. Hanks QC and Mr J CranstonSolicitor for the Respondent Australian Government Solicitor
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