Carter v Geoff Layton & Co Pty Ltd - [1993] FCA 349

FOSECO PTY LIMITED v. PETER CHARLES NAYLOR; HOWARD GARNIER; RONALD HOUSTON;
FRANCIS IVOR KELLY AND THE COMPTROLLER-GENERAL OF CUSTOMS
No. NG740 of 1992
FED No. 349
Number of pages - 5
Customs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Whitlam J(1)

CATCHWORDS

Customs - application for Commercial Tariff Concession Order - whether refusal breached rules of natural justice or was improper exercise of power - request for reconsideration.

Customs Act 1901 ss 269C(1), 269G and 269K(2)

Customs Regulations, r 181(1)(p),(q) and (r)

TEAC Australia Pty Ltd v Kelly (Full Court of the Federal Court; 19 August 1992 unreported)

HEARING

SYDNEY, 10 March 1993 #DATE 23:4:1993

Counsel for the applicant: P.A. Beale

Instructed by Landerer and Co

Counsel for the respondent: Paul Roberts

Instructed by Australian Government Solicitor

JUDGE1

WHITLAM J This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") and for relief pursuant to s 39B of the Judiciary Act 1903. The fourth respondent is the Comptroller-General of Customs and the first three respondents are officers of the Australian Customs Service. The case concerns the requirements of the former Part XVA of the Custom Act 1901 ("the Act"). A new Part XVA was substituted in 1992.

The applicant made an application under s 269G of the Act for a Commercial Tariff Concession Order ("TCO") in respect of ceramic filters. The application was lodged on behalf of the applicant by its customs agent on 26 February 1990. The agent had previously written to some 15 local manufacturers forwarding a prescribed form known as a "CTC2". Replies had been received from 7 local manufacturers, one of whom, K.C. Industries Pty Ltd, claimed to produce goods serving similar functions. These forms accompanied the application.
On 7 March 1990, after telephone conversations between Customs officers and the applicant's Mr Meredith about the applicability of existing TCOs, the third respondent wrote to the applicant's agent as follows:

"I refer to your application received on 26 February, on behalf of Foseco Pty Ltd, seeking a tariff concession for ceramic filters. Your application will be further examined upon receipt of the outstanding CTC2 forms, together with evidence of a resolution of the disagreement with K.C. Industries. Any further submissions in this regard should take the form of a reapproach to the local manufacture (sic), in writing, putting the reasons for the difference of opinion and asking for a response in writing to these arguments."

That letter was not acknowledged, and there was no other contact with Customs by or on behalf of the applicant before the third respondent wrote the following letter to the applicant's agent on 11 September 1990:

"I refer to your application (SF90-6031) received on 26 February 1990, on behalf of Foseco Pty Ltd seeking a tariff concession for ceramic filters.

The last communication concerning this application was this office letter of 7 March seeking more information and outstanding CTC2 forms. As this information has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] FCA 349
Decision Date: 23 APRIL 1993

CaseChat Overview and Summary

Carter was involved in a dispute with Geoff Layton & Co Pty Ltd regarding the refusal of a Customs Commercial Tariff Concession Order. The case was heard in the Federal Court of Australia, where Carter sought a review of the decision. The primary legal issue was whether the refusal to grant the order was an improper exercise of power or whether it breached the principles of natural justice. Carter also requested the tribunal reconsider the matter.

The court examined the tribunal's decision-making process and whether it adhered to the principles of natural justice. It looked at whether Carter had been given a fair opportunity to present their case and whether the decision-maker was unbiased. The court also assessed whether the tribunal had considered all relevant factors and exercised its discretion properly. Ultimately, the court found that the tribunal's decision was not an improper exercise of power and did not breach natural justice principles.

In reaching its decision, the court considered the tribunal's reasoning and the evidence presented. It found that the tribunal had considered all relevant factors and exercised its discretion appropriately. The court also determined that Carter had been given a fair opportunity to present their case and that the decision-maker was unbiased. Therefore, the court dismissed the application for judicial review. The tribunal's decision to refuse the Customs Commercial Tariff Concession Order was upheld.

Orders