Carter v Geoff Layton & Co Pty Ltd
[1993] FCA 349
•23 APRIL 1993
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 not been received the application has had to be considered on the basis of the facts as presented to this date.
As required by Section 269K(1) of the Customs Act I advise you that because I do not have the information necessary to grant a Tariff Concession Order the application is refused."
The applicant had, in fact, exchanged letters with K.C. Industries Pty Ltd dated respectively 2 and 11 April 1990, but this correspondence was not forwarded to Customs until 15 May 1991. Meanwhile, on 24 April 1991 the applicant wrote to Customs informing of the appointment of a new customs agent "to continue" the application. The third respondent acknowledged that letter on 29 April 1991 as follows:
"I refer to your letter 91F435 of 24 April advising this office of a change in customs agents and your intention to continue (I think) your previous application seeking a tariff concession for ceramic filters. I must advise that the decision as outlined in this office letter of 11 September 1990 stands (copy attached). The only avenue available in which consideration can be given your request is through the lodgement of a new application in the prescribed manner."
On 15 May 1991 the applicant's new agent applied "for reinstatement, for further consideration in terms of Sub-section 269K(2) of the Customs Act 1901, of the application." The applicant's agent lodged a fresh application for a TCO in respect of the goods on 20 May 1991 "without prejudice" to the previous application "which had been cancelled and on which we have applied for reinstatement." However, on 21 May 1991 the second respondent wrote to the agent and, after referring to Customs letter of 7 March 1990, said:
"On 11 September 1990 (6 months later) the application was refused because the applicant had not provided the necessary information. Apart from an exchange of correspondence between the applicant, Foseco, and K.C. Industries in April 1990 (some 12 months ago) there is no evidence that either the agent or Foseco have made any serious attempt to overcome the objection or to obtain the outstanding clearances.
... As of now I cannot see that you have added any weight to the original evidence or resolved any of the outstanding issues even though you claim to have additional information. It is now over 15 months since your client lodged the application and little progress has been made. ACN88/151 states that "Where an application has been refused, an applicant must substantiate continued relevant progress on the issues concerning the eligibility of the goods for a concession. Failing this any further submission must be on the basis of a new application.
Therefore, I cannot accede to your request for reconsideration of the application. If your client wishes to pursue the matter further a new application should be lodged together with the relevant outstanding clearances including KC Industries. Any information already submitted will be accepted as part of the new application."
K.C. Industries Pty Ltd subsequently withdrew its objection to the proposed TCO and the applicant's agent forwarded a letter from that company to this effect to Customs on 1 July 1991. However, meanwhile, another local manufacturer, Ceramic Oxide Fabricators Pty Ltd, had objected to the new application. This was one of the manufacturers from whom a response had been outstanding on 7 March 1990.
By 17 January 1992 the agent was emboldened to write to the second respondent with the following plea:
"We request, on the basis that there was continuing action by our client and no existing objections to the first application and also that there will be no objections to the new application, that the first and second applications be considered together and when approved the TCO be made retrospective to the date of the initial application."
The second respondent replied on 22 January 1992:
"I refer to your letter of 17 January 1992 requesting that the two applications on behalf of Foseco for ceramic filters of 26 February 1990 and 20 May 1991 be considered together and the operative date of any TCO resulting be that applying to the earlier application. I must point out that the first application was determined by refusal on 11 September 1990 and is therefore finalised. You sought to have it reconsidered on 13 May 1991 and this request was rejected. You were advised that any further pursuance of the matter should be through a new application. You lodged the second application in response to this advice. There is no justification to reconsider the first application and no ground to apply its date of effect to the later application. In relation to the second application, while we have now been advised that Ceramic Oxide Fabricators is withdrawing its objection, there are still four outstanding CTC2's after over 8 months all of whom were approached as part of the original application. I also note that it took you 7 months to react to Ceramic Oxide's objection. You were fortunate not to have had your latest application refused in accordance with Customs policy of refusal after 6 months of inactivity. This is the very reason that the first application was refused. I cannot accept the need for a period of over 6 months to obtain a clearance from a local manufacturer or to resolve an objection. In relation to your outstanding clearances I would expect you to personally contact these companies and seek a response. If you have difficulty in obtaining such you should contact the delegate immediately.
As this case has been in process for some time would you please provide the outstanding evidence as soon as possible so that it can be finalised."
The outstanding CTC2 forms from local manufacturers were not received by Customs until 11 March 1992. In anticipation the fourth respondent's delegate had arranged on 4 March 1992 publication of the Gazette notice under s 269L of the Act in respect of the fresh application.
The first respondent met the applicant's agent and Mr Meredith on 24 March 1992. Following that meeting the applicant's agent procured a letter dated 25 May 1992 from the original agent, Interfreight International Pty Ltd, to Customs dealing with that agent's action on the application after lodgement on 26 February 1990. On 2 June 1992 the fourth respondent's delegate made the TCO in respect of the fresh application and the first respondent wrote to the applicant's agent as follows:
"I refer to our meeting on 24 March 1992 at which you and Mr J F Meredith of Foseco sought my reconsideration, under ss269K(2) of the Customs Act, of an application for a Tariff Concession Order for Ceramic Filters. In particular, you requested that I reconsider the decision made by the delegate, and subsequently reaffirmed by Mr Garnier, not to consider the applications made on 26 February 1990 and 20 May 1991, together, and, consequently, not to grant to any resulting TCO the operative date that would have applied to the earlier application. You will recall that at our meeting I suggested that Customs had no evidence to show that, through the period from the application date in February 1990 to the date on which the application was refused in September 1990, there had been continuing efforts to resolve the objections that had been lodged by KC Industries against the application. I suggested that if evidence to that effect could be produced then it may add merit to your case. You will be aware that I have now received a letter from Interfreight International Pty Ltd, dated 25 May 1992. This letter adds only two new pieces of information to what Customs already knew - that Interfreight made phone calls to Foseco on 3 and 23 April 1990. I do not dispute that these calls took place, but they add nothing to your case. The record shows that KC Industries wrote to Foseco on 11 April 1990 and said, among other things:
"Your closing paragraph asks our agreement to your requests. As to what those request are - your letter is not clear."
There is no evidence that either Interfreight or Foseco replied to KC's letter. In fact there is no evidence of any action at all by anyone on behalf of the applicant until December 1990, three months after notification that the application had been refused, when Holden's Engine Company sought a quote from KC for the supply of ceramic foam filters. In the light of the above, i.e. in the absence of any new information, I can see no ground on which to accede to your request for reconsideration of the application lodged on 26 February 1990. As you are aware, the application on 20 May 1991 has been determined by the granting of a TCO for the goods in question."
On 29 June 1992 the applicant's agent sought access under the Freedom of Information Act 1982 ("the FOI Act") to the relevant Customs files and a statement of reasons under s 13 of the ADJR Act in respect of the decision of 2 June 1992. The FOI Act documents were made available on 10 August 1992. The s.13 statement was supplied on 4 September 1922. These proceedings were commenced on 2 October 1992.
In these proceedings the applicant challenges five "decisions", being those contained in the Customs letters of 11 September 1990, 29 April 1991, 21 May 1991, 22 January 1992 and 2 June 1992. The respondents object to the competency of the application on the grounds that the last four of those letters are not decisions to which the ADJR Act applies and that, except in respect of the letter dated 2 June 1992, the application was not made within the prescribed period under the ADJR Act. Accordingly, the applicant amended its application to claim relief under s.39B of the Judiciary Act 1903 and also filed a notice of motion dated 18 December 1992 seeking an extension of time. The applicant's notice of motion and its amended application have been heard together.
The applicant seeks to impugn the decision of 11 September 1990 on several grounds. First, it is submitted that a breach of natural justice has occurred. Specifically, it is submitted that the third respondent "should have made an enquiry or issued some warning first before refusing the application." The basis of this submission is not clear to me. It is not suggested that the Customs letter of 7 March 1990 contained an implicit undertaking not to make a decision under s 269K(1) of the Act until further material was received from the applicant. On the contrary, in my view, the letter of 7 March 1990 would leave a customs agent in no doubt that the application was deficient in terms of the particulars prescribed by regulation 181(1)(p), (q) and (r) of the Customs Regulations and that the application would be refused unless those deficiencies were rectified. Secondly, it is submitted that the refusal of the application was an improper exercise of discretionary power made in accordance with the "Customs policy of refusal after 6 months of inactivity" referred to in the letter of 22 January 1992. However, I have not been directed to any evidence which contradicts the statement in Customs letter of 11 September 1990 that "the application has had to be considered on the basis of the facts as presented to this date." There is nothing before me to suggest that the application been determined otherwise than on "the merits".
The applicant also submitted that the respondents failed to take into account a relevant consideration. In the amended application this consideration was described as "the fact" that the provisions of s 269C(1)(a) and (b) of the Act were met. At the hearing this point was developed as a collateral attack on the requirements of the Customs letter of 7 March 1990. Whatever may be the conclusions which were open to the respondents on the material before them at that date about the functions of the goods produced by K.C. Industries Pty Ltd, it is quite clear from the request for the outstanding CTC2 forms that the third respondent had regard to the relevant considerations under s 269C(1) of the Act - see Customs Regulations, r 181(1)(p), (q) and (r). The challenge to the decision of 11 September 1990 must fail.
So far as the other four letters are concerned, I do not consider that they are reviewable "decisions" for the purposes of the ADJR Act. Section 269K(2) of the Act imposes no obligation of "further consideration" upon the fourth respondent: TEAC Australia Pty Ltd V. Kelly (Full Court of the Federal Court, 19 August 1992, unreported). The respondents never proceeded to reconsider the application. All along, they maintained that the application had been dealt with finally by 11 September 1990 and they were astute to make that clear in their subsequent letters. The first and second respondents emphasized that they were dealing with the applicant's "request for reconsideration of the application." Their declining to accede to the applicant's request for reconsideration is not a "decision" for which provision is made by or under the Act: Australian Broadcasting Tribunal V. Bond (1990) 170 CLR 321 per Mason CJ at 335-339. Nor, of course, can the applicant point to any other source of a duty to consider such requests. I uphold the objection to the competency of this part of the application.
In any event, the basis of the applicant's attack on the four subsequent letters was somewhat difficult to discern at the hearing. The suggestion was made that the first respondent reached an "incorrect conclusion" in relation to his view of whether there had been during the period February to September 1990 continuing efforts by the applicant to resolve the objection of K.C. Industries Pty Ltd. Suffice it to say that, in my view, there was ample material before him upon which the first respondent could reach the views expressed in his letter of 2 June 1992.
Had it been necessary to consider the application for extension of time in respect of the decision of 11 September 1990, I should not have been inclined to grant it. The applicant has offered no satisfactory explanation of its failure to commence proceedings soon after 21 May 1991. However, as I have indicated, the application cannot succeed.
The applicant's notice of motion and its amended application are dismissed. The applicant is to pay the respondent's costs.