Comptroller-General of Customs & Ors v Amcor Limited

[1988] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Registry No C4 of 1988

B e t w e e n -

COMPTROLLER-GENERAL OF CUSTOMS,
KENNETH OLLIFFE and RUSSELL

ADRIAN SHAKESPEAR

Applicants

and

AMCOR LIMITED

Respondent

Application for special leave to

appeal

WILSON J
DAWSON J

Amcor

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 AUGUST 1988, AT 11.36 AM:

Copyright in the High Court of Australia

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MR G. UREN, QC: If the Court pleases, I appear in this matter

with my learned friend, MR R. TRACEY, for the

applicant. (instructed by the Australian Government

Solicitor)

MR P. BUCHANAN, ~C:  If the Court pleases, I appear with my

learne friend, MR J. COOPER, for the respondent.

(instructed by Arthur Robinson & Hederwicks)

WILSON J:	Mr Uren.
MR UREN:	If the Court pleases. The proceedings down below

were proceedings under the JUDICIAL REVIEW ACT

and they followed from the refusal of the

Comptroller-General to grant a tariff concession

order which would, if it had been granted, have
allowed the import of paper-making machinery of

a particular type at a lower duty rate than that

which would otherwise have pertained. I think the

original rate would have been 15 per cent; the

lower rate would have 2. The effect of granting

the application for the tariff concession order

would not only have inured to the benefit of the

particular machine itself, which the applicant

had in mind, but would have had·an across the

board effect and thus allowed a similar tariff

concession for all machines which fulfil the same

function.

WILSON J: For all paper-making machines of 5.6 metres in

width?

MR UREN:  Yes, which fell within the description. The

broad categories of reasons why we submit special

leave should be granted; we would like to state them

at this stage and then go on to say something

about them in particular. If we could state them

in ascending order of importance as we see it.

The first is that the amount in question here

is quite significant; the duty involved is about

$1 million. I think that appears from the material

in the application book.

The second point is that the court really - and under the guise of deciding a question of

interpretation of the relevant portion of the

CUSTOMS ACT, in fact, made its own decision on

the facts. Now, I do not know whether the Court

thinks that is a very important matter in relation

to a special leave application but none the less

it does appear quite clearly, we think, from
pages 46 and 49 of the application book that the
court, in fact, made a ..... decis:i..v~4 ,.::.:.;.c thus
went improperly outside the ambit allowed by the

Act itself.

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WILSON J:  Even though they simply referred it back to the

officer for consideration?

MR UREN:  Yes, because they said that his conclusion was

wrong on the facts and the matter was then remitted

back to him to be reconsidered.

TOOHEY J:	The Full Court did not foreclose in any way the decision that the decision maker might ultimately reach, Mr Uren?
MR UREN:	They did by virtue of the reasons that they gave, in our submission. The decision maker is, as a
result of this decision, in a situation of some embarrassment as to precisely what to do, we think
partly because of the findings which the Full Court
made, which it said were findings of law but which,
in our submission, are really findings of fact.
WILSON J:	Was it not this, Mr Uren, that the Full Court

came to the conclusion on its construction of the

Act and the particular meaning to be attributed to the words "in the normal course of business",

concluded that the consideration of the decision

maker had, by proceeding on a wrong construction,it

was therefore to be set aside?

MR UREN:  Your Honour, I know that is what they said but

it is not what they did. If I could take Your Honour

to page 46 and to the second paragraph up from the

bottom, the court said:

However, the preparedness to accept orders -

this is after reviewing some of the factual

considerations -

However, the preparedness to accept orders of the necessary description must be a

preparedness to accept "in the normal course

before him that Johns Perry satisfied this of buiness". In the present case, the decision make took the view on the materials this description. We disagree.

The court, at the bottom of that page, said

that the submission which was made to it was:

that the decision makerhad misconstrued

sub-s 269B ( 7) •

It then went on to view the facts of the case, or

in a number of the facts which were relevant, on

page 48, and then at page 49 after a further review

of certain of those facts it then said:

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In those circumstances, we believe it would not be accurate to say, within the

meaning of sub-s. 269B (7) that Johns Perry

was, in the normal course of business, prepared

to accept orders for the supply of the goods

in question.

WILSON J:	On the materials before the decision raak~r?
MR UREN:	That is right. The court was not asked to review

the decision on the basis that it was one to which

no reasonable decision maker could come, the point

that was made to the court was that there had been

an error in interpretation of the section.

TOOHEY J:  That may not be the most happily worded passage,

Mr Uren, but when the judgment is taken in its

entirety, in particular the concluding sections of

the judgment, it seems to amount to a little more
than that the court was disagreeing in the sense
that they thought the decision maker had approached

the matter on a wrong footing. I do not read the

judgment as precluding the decision maker from
ultimately making a decision favourable to your

client, so long as he does so within the framework

as laid down by the Full Court.

MR UREN:	Your Honour, we are the decision maker not the - - -
TOOHEY J:	I am sorry, from making a decision adverse?
MR UREN:	Yes, I follow what Your Honour says. Your Honours,

it is really a matter of looking at what the court

said in total. Our view was, and our submission is,

that the court has	certainly not precluded a
decision being made	against the granting of

the application for the tariff concession order,
that is correct, but it had made the ~onsideration

of the issues which are relevant to that matter
difficult by virtue of what they have done.	But,

in any event, the point that we are making in this

respect is that the court itself seems to have
trespassed on the area of the facts and then for

the purpose of showing that that is, or is

certainly arguably the case, we pointed out

the review of the facts which the court has made

and the references which we have read out on

pages 46, 48 and 49, which had been done before

the court considered any of the legal is.sues.

Then the court, at page 49, went on to discuss the question of "the normal course of business".

They have said it does not mean the ordinary course

of business; they have said various other things.

They have said that it requires 'the reference to a

"norm". They have referred to certain things which

may or may not be "the normal course of business".

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So, in other words, they have said some things

might be and some thing might not be, and then

follows a passage in the third paragraph down from

the top of page 51:

It follows that the decision maker fell into

error in construing sub-s. 269B (7) of the

CUSTOMS ACT.

Now, we, with the best will in the world have been unable to see what the error was that the decision

maker is said to have fallen into in construing

the subsection, unless it was that he merely came

to a conclusion of fact which the court did not agree

with. The court has not, in our submission, said

what the decision maker's view of the law was or

what his error was, they have only said that he

was wrong on the facts and they have, in saying

what may or may not be within "the normal course

of business" just said, "Well, this might be, this

might not be, this might be, this might not be,
this might be, this might not be", and it follows

the decision maker fell into error. Now, we have been unable to ascertain what the error was which

then emboldens us to say that the court did not

know either, with respect, but had come to a conclusion on the facts which it said was an

error of law when, in fact, it was not.

But, in any event, this is only the second of

our broad grounds. The third, which is perhaps

even more significant, is that the court seems to
have decided the issue on an irrelevant point

and we will advert to what that was in a moment.

Our broad submission in this regard is that the

court has decided the issue on a point which the
decision maker did not consider because he was not

obliged to do so and the court has not decided the

matter on the issues which the decision maker actually

decided. If the Court thinks that that is likely

to have been the case then there would have been

a complete miscarriage of the appeal, the appeal

would not, in fact, have been properly heard and

the decision maker 1,;; reduced to a further state of

embarrassment as to precisely what to do.

The last and most important point that we wish to make

is that the point on which the Full Court did decide

the case which, in our submission, was the irrelevant

point, is none the less one of great significance

and the court's decision will have a substantial and,

we would say, distorting effect on Australian industry

protection and tariff policy in the future, both

generally and also in the areas with which this

matter was particularly concerned, which we might

call the area of - if we could take a word from

"tailor" of tailoring, this is not bespoke tailoring

but it is bespoke goods and bespoke production of

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goods and bespoke machinery production, the areas
of one off machinery, one off goods, unique goods,

the whole of the new technology area,which seems

to be getting some public reference these days,

is a matter which it is important for this country

to get into.

WILSON J:	I am sorry, I have not grasped that fourth and most important point.	Would you mind just restating it.
MR UREN:	Yes.	The court, in our submission, has, in its

decision, come to a conclusion on the section 269B(7)

which if right would have a substantial and, we would

say, distorting effect on Australian industry

protection and that, we submit, has not only an

effect which will apply generally but also in the

particular area with which this matter was concerned,

namely, the area of one off or unique goods, goods

to which there has been no prior order placed in
this country, perhaps goods in which there has

been no prior order placed in the world because

of the uniqueness, in other words, in the area

of one off or bespoke goods productions. We will

say something in a moment about why we say that

is so.

I do not think we need, perhaps, mention further

than is currently being done the areas of the amount

or the matter of the court having decided or not

decided on the facts rather than the law. If we can

go particularly then to the two last points which

we thought were of great significance. I would

like to do that firstly by taking the eourt to the

sections of the Act in question because looking at

those will make it then clear what our point is

in respect of the court having, as we submit,

a mistake in the point which it was to determine.

At page 42 of the appeal book - - -

WILSON J:

want to take you off course but you are back on

Just before you go to that, Mr Uren - I do not

to the third point now and your complaint was that
the Full Court found that the decision maker had

fallen into error but it did not indicate why and,

therefore, suggest that really they just were taking

a different view of the facts. But on page 51,

the paragraph that follows the matter you referred

to, do they not do just that, although it opens:

We add that in our opinion -

but that seems to me to be a development of the

reasons why the decision maker misconstrued the

true meaning of the phrase "the normal course of

business" in subsection ( 7)?

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MR UREN:	Yes, I see Your Honour's point.	The answer to that,

Your Honour, would be made clearer if I took Your Honour

to the sections first.	I wonder if I might do that
now?

WILSON J:	Yes, certainly.
MR UREN:	I am not avoiding Your Honour's point but it will

be made clearer as the sections are looked at. At

page 42, Your Honours, appears the relevant portion

of section 269C, and perhaps if one looked at the

bottom of the previous page for the complete

reference to that section, the section reads:

(1) Subject to this Part where the

Comptroller, after considering an application

under section 269G for the making of an order
under this section in respect of particular

goods, is satisfied that -

(a) goods serving similar functions to the

particular goods are not produced in Australia;

and

(b) goodsserving similar functions to the

particular goods are not capable of being
produced in Australian by any person in the

normal course of business,

the Comptroller shall make ..... a Tariff

Concession Order.

It would seem quite clear that (a), he must have

been satisfied that goods serving similar functions

are not, I think, produced in Australia. The

relevant portion of the section seems to be (b).

He must .before granting tli..e. order be satisfied that:

goods serving similar functions to the

particular goods are not capable of being

produced in Australia by any person in the

normal course of business.

So he must be actually positively satisfied by the person who wants the tariff concession order of

incapacity to produce in Australia. He must be

satisfied that nobody can do it.	He must be
satisfied then of a negative.	Now, for the

purposes of assistance in that satisfaction one

comes to section 269B(7), which appears on the

next page, page 43, at the bottom. That then provides

that:

For the purposes of this Part, a person shall be taken to be capable of producing goods in the normal course of business if, in the

normal course of business, he is prepared to

accept orders for the supply of such goods

that have been, are being, or are to be,

produced by him.

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Now, this then, in our submission, is evidentiary,

not exclusively evidentiary, but is evidentiary

of the matters which have to be taken into account

under 269C(l)(b). In other words, if subsection (7)

is found then, of course, the decision maker would

be satisfied that:

the particular goods are capable of being

produced in Australia by any person in

the normal course of business.

However, there are other methods but subsection (7)

is not the only gateway to 269C, there are other
ways of deciding and other matters to be taken into
account in deciding whether one is or is not

satisfied that the goods are incapable of being

produced in Australia. So there are, in our submission,

two issues. There is the broader issue of whether

the decision maker is satisfied of the factors
set out in section 269C(l)(b) or is not and there
is the particular assistance which he might receive

in coming to that conclusion by subsection (7).

So an Australian producer could say, "Look I am,

in fact, a person who is prepared to accept orders
for the supply of such goods in the normal course
of my business", and if the Australian producer

can satisfy the Comptroller of that then of

course he - - -

WILSON J:  It is not enough for him to say that, Mr Uren.

He can say that he is prepared to accept orders

for the supply of such goods that have been, et cetera,

but the critical question is the repetition in

subsection (7) of the phrase "in the normal course

of business".

MR UREN:  Well, Your Honour, there is no relevant repetition

because - although the Full Court thought there was,

we think. In other words, there is no double

repetition for the purpose of the definition because

subsection (7) says: 

For the purposes of this Part, a person shall

be taken to be capable of producing goods

in the normal course of business if -

now, if I could stop there and say that that is

clearly a reference back to what has to be decided

in 269C(b).

WILSON J:	Yes.
MR UREN:	In other words, the broad question to be decided

is, is the decision maker satisfied that somebody

is incapable of producing goods of a certain sort in this country in the normal course of business.

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Now, that question is then taken on into the

preceding words of subsection (7), and so, in

other words, for the purposes of deciding that
question you can ask whether "in the normal course
of business" a producer is prepared to accept
orders for the supply of such goods. Now, of
course, the words "the normal course of business"
have to appear with reference to the acceptance
of orders because it would be quite impossible
for the section to say:

For the purposes of this Part, a person shall be taken to be capable of producing

goods in the normal course of business if - he is prepared to accept orders for the supply of

such goods.

WILSON J: That is how I inferred that you were reading it?

MR UREN:	No, certainly not, Your Honour.
WILSON J:	And the purpose of my intervention was to stress that there remained an objective question as to
whether the willingness to accept orders was, in
fact, in the normal course of business?
MR UREN:	Yes, I follow what Your Honours says, that must

be the case otherwise I could say I would accept

an order - - -

WILSON J:	Yes, that may be true.
MR UREN:	- - - and that, obviously, would be rather silly

of me and, indeed, of anybody else. Yes, I take

Your Honour's point, I misunderstood it. But,

in any event, Your Honour's intervention has allowed

me to say what I would have said later which was

that the beginning of subsection (7) is merely

a reference to what the decision maker has to

decide in the broader aspect - - -

WILSON J:	Yes, yes.
MR UREN:	- - - and then to refer to a matter which can

be evidentiary of that. Now, the decision maker's

decision appears, I think, in Mr Justice Neaves

judgment at pages 8, 9 and the top of page 10. from the top to:

the fundamental issue to be considered is

whether at the time the application was

lodged, goods serving similar functions were

produced or were capable of being produced

in Australia in the normal course of business.

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Now, that is not the subsection (7) evidentiary matter that he is referring to, that is the broader

section 269C matter. He then says in the second

last paragraph up from the top:

As you know, it is the applicant's responsibility

to establish the case for a concession order.

So he is referring there to the onus of proof. He

then refers, on page 9,to the claims which Johns Perry

make and to the evidence which has been obtained

in respect of the claims, both from Johns Perry

and also from visits by the officer to

Johns Perry's place of business. So he refers

to their resources, their technical knowledge,

the fact that they have got access to an international

company with whom they are associated and to their

capabilites, to the report made to him that their

claims were totally justified, to the evidence against Johns Perry's claims which he says he has weighed and he then discusses that evidence

and then says in a paragraph starting:

However, as I have stated earlier, regardless

of Johns Perry's perceived position in the

market at the time the overseas order was

placed the question to be considered is

whether ...... the company was capable of producing

goods serving similar functions in the normal

course of business.

So he correctly states the test and he says:

Having regard to the claims ..... and the

evidence which has been gathered ..... and their proven capacity, demonstrated over

many years to produce complex machinery to

order, including for the paper making industry,

I would have no justification in setting

aside their claims. Accordingly, I can

only endorse the advice previously conveyed

to you that a case ..... has not been established.

Now, the decision maker is not saying that they

can produce these things. What he is saying is
they have made claims they can, the claims do not

appear to be hopeless and seem to be backed up

by material, which seems reaso~ble. They have not

been disproved -?r .'.'lre capable of being set aside
by anything which he has been shown by anybody

and, consequently, he is just not satisfied that

Johns Perry cannot do the job. Now, he has not

said that Johns Perry can do the job, what he has

said is that he is not satisfied they cannot do

the job. He has also relevantly not made any

reference at all to Johns Perry's taking orders

or accepting orders for goods.

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TOOHEY J:  Mr Uren, to what extent does that expression of

view by the decision maker accormnodate the words

"in the normal course of business'?

MR UREN:  The normal course of Johns Perry's business he

has considered are the production of complex

machinery to order, et cetera, et cetera, and if

he came to the conclusion that the production of

this sort of machine was in fact also a complex

machinery making to order in the paper-making

industry and that they are involved in heavy

engineering, et cetera, he has found as a matter

of fact that it has not been shown to him that the

production of this one off machine, at least one off

so far as this country is concerned, is outside the

normal course of Johns Perry's business. Now, he

has not found it is within it, but he has not found

it is without it. It has to be shown to him that

it is not within Johns Perry's normal course of business. But what he said was that bearing in

mind their proven capacity and they could produce

complex machinery to order and they can do it

for the paper-making industry and they have got

the international connections and there is other

material that they have, in fact, made certain

components -large amounts of components for paper-

making machinery, that they have got access to

licensed technology and other things, he has

just said, "Look, on the basis of what you have

told me how can I possibly say that these people

cannot do this in the normal course of their

business."

We stress the fact that he has not mentioned

the question of the subsection (7) test. Mr Shakespear,

the ultimate last decision maker, does not seem to

have mentioned this matter at all. Now, it is

true to say that a previous decision maker had,

a Mr Olliffe, whose decision was being looked at

in turn by way of internal review by Mr Shakespear.

Mr Olliffe mentions the matter of acceptance of

orders but Mr Shakespear has not done so and

Mr Shakespear, in our submission, has on any view merely looked at the matter as a 269C(b) matter,

namely, "Am I satisfied that goods serving similar

functions to this one are not capable of being

produced in the normal course of business by

Johns PerryJ'' All he said was is he is not

capable of being so satisfied.

Now, if we go back then to the portion that

Your Honour Justice Wilson referred to on page 51:

We add that in our opinion, Mr Shakespear did not, as a matter.of substance, turn his

attention to the issue of preparedness in

the normal course of business to accept orders.

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Well, we are not surprised that he has not done so

ut:CcS:'J.se :::e did not do so because he G.i.d not h:tve to do so. He -was not

turning his mind to the positive test under 269B(7),

he was turning his mind to the negative and broader

matter under 269C(b). So it is not surprising

that Mr Shakespear need not, as a matter of substance,

turn his attention to the issue of preparedness

in the normal course of business to accept orders.

Now, the court seems to have come to the

.c~~lusion that he ii.ad, in fact, made his decision
on the acceptance of orders basis, as appears from

what they have said at page 47 of the appeal book

when they set out a passage from Mr Shakespear's

cross-examination and state at the bottom of the

page that that:

is a fair restatement of what appeared on the

face of the record as to the decision making

process.

Well, we want to say that our submission would be,

in due course, that that is not a fair restatement

of what appeared on the face of the record and

even if it was it does not indicate that

Mr Shakespear was taking into account the matter

of acceptance of orders. If we can point out

to the Court why we say that, and also if we could

preface it by saying this: it seems to us, with

respect, to be a most undesireable matter that

decision makers are cross-examined on decisions

that they have made, not for the purposes of showing

that they have been guilty of some bias or something

of that nature but as a sort of examination test

as to can they remember why they decided what

they did and so forth. It seems to us to lead

to the sort of confusion which was being caused,

perhaps, in this case.

In any event, the questioner starts off

by saying:

VH	Mr Shakespear, you then say that the basis
of your refusal is the preparedness of
Johns Perry to accept an order. Is that
the basis on which your decision is made,
is it?

Now, he said:

Yes, sir.

lt would appear clear beyond a peradventure that "Yes,"

is not the right answer - he did not. That was
not the basis upon which he made his decision because

the basis appears in the portion of the reasons

which we read out to the Court.

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WILSON J:  But in a case where it is quite clear that the

Australian manufacturer has never before

manufactured goods of the kind in question, how

can you avoid having regard to the question

of a willingness to accept orders? In other

words, a willingness for the first time to embark

on the manufacture of the product in question.

MR UREN:	Because what the decision maker has to decide is
merely whether the person's businss is such that -
sorry - the decision maker has to decide whether
someone has been shown to be incapable in the
normal course of his work to produce a certain
sort of machine.
WILSON J:	Produce similar goods; that answers my - - -
MR UREN:	Yes.
And the acceptance of order provision must be quite different from that. It may in some cases
be evidentiary of it or it may not, but the
acceptance of order provision must be quite different
otherwise 269C  would have said what 269B(7)
says, in other words,. the acceptance of orders in the ordinary course of business. is not the same thing as a capacity to produce machinery in the ordinary course of business.

(Continued on page 14)

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WILSON J:  The applicant in this case led evidence of

discussions and correspondence - discussions

with Johns Perry and correspondence from them -

and said that, "I want the concession order because

you should be satisfied that similar goods are

not capable of being produced in Australia".

And all there was to suggest that they were

was a willingness on Johns Perry's part to accept

orders.

MR UREN:	No, not at all. What there was to suggest that
there was was what the decision maker referred
to on pages 8 and 9 of the appeal book, namely,
Johns Perry's manufacturing experience, history,
ability, capabilities and access to external
technology. That was what caused the decision maker to come to the conclusion that he was not satisfied that they could not make the goods
in the ordinary course of their business.
WILSON J:	And in response to all that, what the crux of

the Fu 11 Court ' s j u d gm en t - w a s i t no t , to p u t

the statutory construction on the phrase "normal

course of business" as to require that the new

product, not hitherto produced, was nevertheless

so associated with an existing product that it

could be seen as an extension of it so that the

new product would be in the normal course of

business and not simply in an extension of the

course of business.

MR UREN:	Yes, they have rather limited this question
of acceptance of orders in the normal course of business to mean only acceptance of orders
for a development of something that you have
done before which then excludes - - -
WILSON J:	Yes, a development of it.

MR UREN:	But, I mean, it is a complete negation of the purposes of the protection of Australian industry.
It stands to bolster up and assist Australian industry to develop behind a tariff wall for
some such time until· it becomes efficient.
Australian industry will never get into new areas
of manufacture if it has to be shown that either they have accepted orders before for something
or,  a 1 terna ti ve ly, they have accepted orders for sarething
which is so close to the something that it could
be said to be an extension of it.

If that is what the tariff concession

sections mean then a large area of protection

is just, at one stroke, taken away from Australian

industry because we will be then given no tariff

prn~~~tion in respect of unique machinery, one

o-ff ma.chlnery, something which is not said to be

just a development of something that one has done

14

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before. And the court has interpreted, not so

much the phrase "normal course of business" but

acceptance of orders in the normal course of

business and it seems to us they have perhaps

really gone so far as to say that if you have

not accepted an order before for something which

is the same as or sufficiently like this it can

never be said that you have accepted an order

in the ordinary course of business.

But that is our last complaint. The complaint

we are making now is that the court looked at

the matter as though the case was one on whether
the decision maker had looked at subsection (7)

or not.

TOOHEY J:  I have difficulty with that, Mr Uren. Are you

saying that, at least in a particular case and
this may be one, the decision maker does not

have to go to subsection (7) at all?

MR UREN:	No, he does not. He may. He does not say - you see, Commonwealth statutes often say "if and only if" when they want someone to take into
account only some particular thing. The section
does not say that at all, it just says:

For the purpose of this Par~ a person shall

be taken to be capable of producing goods -

if he is able to accept orders for them. Now,

that clearly cannot be the only criteria of the
question of whether someone is capable of producing
goods in this country.

Let me say my learned friend, Mr Gleeson, for instance who is not in Court any longer so

I am not going to embarrass him by saying this,

I dare say may not previously have accepted a

brief in a certain area of law.	Yet his capabilities
are such that he is, one dares say, able to accept

briefs in many areas of law which he has not
previously dealt with because of his expertise

and because the law is the law.

In the area of production of unique machinery

of a heavy manufacturing kind a person may be
quite capable of producing that sort of machinery
without changing the nature of his business in

any way. In other words, in the normal course

of his business he may be able to produce this

sort of machinery even though he has never accepted

an order for it before in his life. The question

which the decision maker has to look at is capability

of production, we would say, broadly, without changing the nature or style of his business.

MlT7/2/ND	15	12/8/88
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And that is really what is meant by production

in the normal course of business.

TOOHEY J: That is what I have difficulty with. If the decision maker is told, as he is told in this case, that there is another manufacturer who it is said falls within subsection (7), does

not the decision maker, in order to decide whether
he is satisfied or not satisfied in the relevant

respect, have to pay some regard to subsection (7)?

How could he shut it out of his mind?

MR UREN:	He may and it might no doubt be sensible to ask
himself, "Have these people accepted orders in
the ordinary course of their business for this
sort of machine before?".  But if the answer
ask himself, 11 Am I satisfied that this person, to that is 11 No 11 , he still none the less has to
even though he has not accepted such an order
before, is incapable of producing the machine?".

TOOHEY J: That is true. All I am suggesting is that it

might be difficult for him to fulfil that function

without paying regard to a factual situation
which may or may not fall within subsection (7).

MR UREN:  Not necessarily, Your Honour, because if the

answer is "No" - and let us say it is completely

accepted that, in this case -although it is not- but let us say it was that Johns Perry were not, in the normal course of business, prepared to
accept orders on the basis of the interpretation

which the Full Court had made, none the less

the question would still arise whether the decision

maker was satisfied that they could not do the

work. What the decision maker has done is gone

to the broad question and said, "Can I be

satisfied that they could not the work?" And

he said, 11 I can't be satisfied they couldn,rt do

the work because here are these people, they
do big work, they do one off work, they've got

access to international technology and all those

other things and therefore I can't be satisfied	that they can't do it. 11
In other words, subsection (7) is, in that context, not - if it was something which he did not take into account, it does not matter that
he did not take it into account because the things
which he did take into account were sufficient for him to be able to say, 11 I can't be satisfied
that they can't in fact do the job." The Full
Court ignored that aspect of the case and, I
think, it may have been partly because of the
way the case ran because I understand the way
it ran before Mr Justice Neaves and also before

MlT7/3/ND	16	12/8/88
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the Full Court was that there was sufficient

facts for the decision maker to have come to

his conclusion on and therefore what was really

being sought by the applicant for the tariff
concession order was a review of the decision

maker's factual decision.

But none the less it must be the case, 1n

our submission, that the Full Court has just

not asked itself the right question because it

is clear, in our submission, beyond a peradventure

what the decision maker decided and even in his

cross-examination it is clear in his answer that

he was ignoring the question he was asked and

in the garbled fashion which appears at page 47
was in fact expressing his view about the evidence
of Johns Perry's capability of manufacturing -

or should I say producing - because he then

said:

On the file there were approaches by the
applicant and the applicant's agents to
a local manufacturer to ascertain whether
or not that local manufacturer was making

or capable of making goods serving similar

functions. They themselves -

which means the TCO applicant -

had been to Johns Perry, and Johns Perry

had at some time responded, saying Yes,

they~ do.	They would be capable of
producing -

and they continued that statement in their answer

to the question on the back of the ticket form

and they had said - they made a reference also

to the:

licensed by an overseas manufacturer.

So what the decision maker has done, he has ignored

the ambit of the question which was the acceptance

of an order and he has, in fact, gone on to address

himself to the question which he had really

addressed in the first place, namely was there

capability of production?

TOOHEY J:	We do not have the application for judicial
review but when the matter came before

Mr Justice Neaves, on what basis was it said

that the decision maker had erred?

MR UREN:	Your Honour, I have not seen it either, I cannot
say, particularly.  I dare say it covered the
usual gamut of things because these applications
usually do.  But Mr Justice Neaves' decision

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really was that, I think, the decision maker

appeared to have made a decision on the facts

which he was perfectly entitled to make and so Mr Justice Neaves' decision seemed to us to be based basically on factual matters.

But in any event the point that we make

is that the decision maker did not, for good

reasons, because it was unnecessary, make a

269B(7) decision and the Full Court has said

that he did, wrongly, and then itself gone on
to construe section 269B(7) in the light of the

facts which the decision maker obviously did

not consider in that context because he did not
have to.

And so the Full Court has set up a false issue and this not only h3.sdeprived the decision

itself from a proper appeal being had in respect

of it but it also leaves to the decision maker

in some embarrassment because he is now told
to go back and do again on a legal basis which
he did not decide on something - go back and

do again what he had done previously and, in

our submission, correctly, on a legal basis which

is one he did not decide on in the first place

and did not have to.

In other words, he is said to have been

wrong for something which he did not do and did

not have to do. That, in our submission, is

a matter which strikes at the root of the very

appeal itself and would justify leave being granted

in respect of it. As also would be, in our

submission, if it was the case, the degree to

which a decision maker would have to take into

account the matters referred to in subsection (7)

in making a decision under 269C. The last point that we wish to make is that

the court made a decision on what was meant by

the acceptance of orders in the normal course of business which we think, with respect, was basically to be put in the way that

Your Honour·Mr Justice Wilson put it and that

affects considerably, in our submission, the

future of tariff concession order applications

in a substantial and important area of tariff

concession policy.

But before we go to that broad submission,

I wonder if we could take the Court to the bottom of page 50 and the top of page 51 and show the

Court some other matters which the Full Court

said should be taken into account in the application

of section 269B(7y.rith. respect to the ability

to attract orders and submit that they are

MlT7/5/ND	18	12/8/88
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really completely irrelevant to the issue which

269B addresses.

The court said, in the sentence four or

five lines up from the bottom which starts with

the word "However":

However, it is implicit in the requirement

of preparedness to accept orders for

particular goods in the normal course of
business that the supplier has an ability

in the normal course of business to attract

such orders; otherwise, it would be

difficult to see how the acceptance of such

orders could be part of the norm. The

supplier must be prepared to accept orders

in a competitive environment and therefore to supply the goods of acceptable quality,

at a competitive price, within a reasonable

time and to comply with any other obligations

placed upon suppliers of such goods in the

normal course of trade.

We would concede that contained within the reference

in subsection (7) to the acceptance of orders

in the supply of goods in the normal course of

business, one would have to take regard to quality:

because that relates to what the goods can do
but, in our submission, it is completely wrong,

as the court did, to look at the question of

industry protection from the point of view of

the customer which appears to be being done,
instead of from the point of view of the person
who is doing the production and to require as
ingredients in the normal business process the

concepts of competitive environment, reasonable

time and other obligations - and competitive

price, as well:

competitive. environment ...... competitive

with any other obligations placed upon
suppliers of such goods in the normal course
of trade.

priae, within a reasonable time and to comply

These matters are matters which the court has,

with respect, invented for itself. They do not

come from the section at all which only requires

that there be shown a preparedness to accept

orders in the normal course of business. These

matters, in our submission, are taken into account

by the people who decide that certain industries

need protectior and fix the tariff for those

industries. All that the Act requires to be

looked at is the preparedness to accept orders

in the normal course of business. Competitive

environment, whatever that might mean, may be

MlT7/6/ND	19	12/8/88
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something which is taken into account in deciding

whether an industry needs protection or not but
it is not something which is taken into account,

in our submission, when it has been decided that

the industry does need protection.

So far as competitive price is concerned,

the industry, presumably, requires the protection
because its prices cannot be competitive with
overseas goods. Competitive price forms no part
of the test nor, indeed, do the other obligations
although they would naturally be things that
are taken into account when deciding whether

an industry needs protection or not but not at the

TCO stage.

WILSON J:  Does not this paragraph answer your client's

complaint to which you adverted at the beginning,

that the judgment does not tell him how to perform

his task when it is remitted to him for
reconsideration? It seems to be a very lucid,

short statement of what the court understood to be a capacity of production by a person in the normal course of business in Australia.

I realize you have been diverted by subsection (7)

but I am coming back to 269C(l)(b) and what the
central thing of which the Coq_Jtroller must be

satisfied before granting a concession order

is a capacity of production in Australia by a

person in the normal course of business. Why
does not that phrase comprehend all the elements

to which the Full Court advert in the passage

you have just read?

MR UREN:	Your Honour, because it is not addressed to that issue,it is addressed to the issue of preparedness to accept orders to which the court is not addressing
itself.

WILSON J:  They are very close, are they not?

MR UREN:	Your Honour, it is impossible to tell from this
judgment that the court accepted that they were
close.  The court is dealing only with the concept
of preparedness to accept orders. It was not dealing with the question of whether Johns Perry
was shown to be incapable of producing the machinery
in the normal course of business or, as we would say, capable of producing the machinery without
some significant change in the course of business
which it had followed up to that date.

The court's decision must only, in our

submission, be taken as a decision on the question
of preparedness to accept orders and they have,

in our submission, addressed no other issue at

a 11.

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The preparedness to accept orders 1n -

partly because, for instance - - -

WILSON J:  But they say it is implicit in that question

of preparedness to accept orders that the supplier

has an ability in the normal course of business

to attract such orders. Does not that come to

the same ground as is contemplated in the capacity to produce goods in Australia in the normal course of business?

MR UREN:	Not necessarily, Your Honour. It depends on
the view that you look at it from. It appears,
in our submission, to be viewing the thing from the point of view of the customer rather than
from the point of view of the producer. Under
the broader section of the Act, the only question
is whether the decision maker is satisfied that
somebody is not capable of producing things in
the normal course of his business. The ability to attract orders may involve other ingredients altogether because if - the ability to attract
orders goes to the question of why a customer
will go to a manufacturer. That may involve
a number of different issues which are germane
to customers, one of which is, presumably, getting the best price and, of course, if they can get a cheaper price elsewhere then they will go elsewhere but the purpose of tariff industry protection
is to allow Australian industry to, in fact,
produce something although at a price which is above that which overseas suppliers are able
to produce it at.

In other words, it looks at the wrong things.

If one is going to look at why the purchaser

will go to a manufacturer one is not then looking

at whether the manufacturer can do the job without

signficantly changing his business and it is

fundamentally wrong from the point of view of
statutory interpretation to	pose a test which

is not that which the statute itself requires.

And a test has been posed here which is not that which the statute requires and further ingredients have been added in which are, again, not those which the statute requires even in respect of 269B(7), let alone 269C.

If the legislature had thought that these

were matters which should be taken into account
in deciding whether there should be a tariff

concession order, then it would, presumably,

have said so. The last thing we want to say

is that this was a case involving what one might

call one off or unique goods, t~ings which have
not been made before in this country,and it is

important to Australian industry to be able to

MlT7/8/ND	21	12/8/88
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get into, if I could use that phrase, the

production of things which have not been heretofore

made.

It may well be within the capabilities of

Australian industry to do that without changing

to a significant degree the course of their business

and that then could be said, in our submission,

to show a capability in Australian industry to

of 269B(7) would mean that where there was no

produce that thing in the normal course of business.

Australian prior production history of a particular

type of machine but there was a capacity to produce

and there was a business history which made an

Australian producer a natural or proper producer

in this country of that particular thing which
he is capable of making, although with the assistance
of foreign technology which the Act allows for,

the decision which, on the meaning of 269B(7),

would actually deny that producer the assistance

of tariff protection.

Tariff protection is there to protect, amongst

other things, in our submission, just this very
sort of industry and the decision which the court
has made denies the Australian producer the
assistance of being able to go to 269B(7) and
say, "Look, I can accept orders in the ordinary
course of my business for these particular goods

because I have got the capacity to make them

and it is not outside the bounds of the normal

thing I do." The court, in our submission, in

other words, has just taken a too limited view

of what is meant by 269B(7) but, more broadly,

the court has told the decision maker that he

has made an error as to 269B(7) when, in actual fact - t~at he should have considered the 269B(7) issues and made an error about them when, in actual	fact, it was not necessary for him to consider	then at all and he did not make an error about
them at all because he did not consider them.

Lastly, we would reiterate that the decision

which was made on the meaning of 269B(7) and

on the meaning of the normal course of business

is, in fact, a decision on the composite phrase

"to accept orders in the normal course of business"

and it cannot then be said that the decision

maker has been given guidance as to what he should

take into account in. looking at 269C. But if

that was the case then we would submit that the

decision was even more greatly vitiated with

errors of consequence than would otherwise have

been the case because if, in fact, in deciding

whether someone has been shown to be incapable

MlT7/9/ND	22	12/8/88
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of producing goods in the normal course of

business, one must take into account questions

of price and competitive environment - whatever

that means - and such other obligations as are

placed upon suppliers of goods in the normal
course of trade, then one has completely turned

the Act in a direction which was not - if I say

"in a direction which is not intended" that

rather goes to the ultimate issue in the case but none the less it can be seen that if the

Act means that then there is a significantly '

different effect than it would have if it did

not mean that and that significantly different

effect, in our submission, is sufficient to raise

a question of importance in the context of
Australian industry which it would be desirable

for this Court to deal with. If the Court pleases.

WILSON J: Yes,·Mr Buchanan.

MR BUCHANAN:  Your Honours, could we, at the commencement

just clear away the particular question which

this application concerns, which is the application

of the provisions of Part XVA of the Act to

paper-making machines. The position now is that

this case, and one like it, cannot arise because

by Act No 68 of 1988 the rate for all paper-making

machines was reduced to 2per cent and by Act No 53

of 1988 the revenue component of 2 per cent was

itself removed which wa8 a matter that had

been foreshadowed by a press release from the

Minister for rndustry Technology and Commerce

in November last year in which he stated that

there was no complete paper machines made in

Australia and, accordingly, the government had

decided to reduce the duty to encourage investment
in those machines to enable value to.·be added

to production in Australia of paper.

WILSON J:  So there is no duty at all now on the importation

of paper-making machines?

MR BUCHANAN:  That is so, Your Honours, yes. Not even

a revenue component. So, in future, the application

of Part XVA of the Act will involve different

goods and different facts and the decision, we

would say, of the Federal Court in respect of

which this application is made was one which

involved the application of a statutory requirement
to a particular set of facts and in so far as

it involved the interpretation of the legislation

we would say that no error of law has been disclosed.

The court accepted the Co::Jptroller's approach

to section 269B(7) and applied the concept of
the normal course of business to Johns Perry's
preparedness to accept an order for goods which

it had not yet produced.

MlT7/1O/ND 23 12/8/88

Amcor Mr BUCHANAN, QC

In our submission, there was not in fact,

having regard to the way in which the matter

arose, any question of law or public importance

which could be decided or which was. In our

submission, the decision of the Federal Court

was one which involved the application of an

unexceptional interpretation of the substantive

provisions of the Part XVA to a particular set

of facts. And the Federal Court recognized that

the fact that no Australian manufacturer had

yet made goods of the particular type in question

was not a matter that by itself rendered futile

an opposition to the grant of a commercial tariff

concession order.

On the contrary, it itself gave one example, and it was an example we would say, of a case

where an Australian manufacturer could enter

into a new field and obtain· the protection of

the system which this part of the Act provides.

(Continued on page 25)

MlT7/ll/ND	24	12/8/88
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MR BUCHANAN·(continuing):  Your Honours, we would say it is

only partially correct to say that this application
involved bespoke machinery. It was certainly
bespoke as far as Johns Perry was concerned

because they would want, or they tried to fit

their capacity to produce this machine into

their ability to produce a wide range of machinery

of a special kind.	But paper-making machinery
is not world-wide	a bespoke industry, in the

sense that each time someone wants a machine

it has to be specially made; there are manufacturers

of these machines who would do it in the course

of a normal production and they are referred

to at the beginning of the Federal Court's judgment,

page 2. I think there were some six manufacturers

in the world.

In so far, we would say, as an Australian

manufacturer faces any difficulty in opposing a tariff concession order where he has yet to enter a market, the difficulty, in our submission,

stems from the requirement in section 269C

that his capacity to enter the market must be

a capacity which exists in the normal course
of his business and if willingness to accept

orders and the capacity to fulfil them were

a criteria, as the decision-maker seems to have

thought they were, then the legislation, we

would say, would have taken a completely different

form.

In our submission, in fact the decision-

maker, Mr Shakespear, did tackle the question

as if he were answering the question which is

posed by section 269B(7) in the very passage

which my learned friend cited at page 9 of the

application book, in the decision of the judge

at first instance, Mr Justice Neaves. It is

the long quotation from Mr Shakespear's decision.

or the basis upon which the decision was made,	At the top of page 9, in laying the groundwork
he refers to Johns Perry's claim to have:

sufficient resources, expertise and technical

knowledge (including, if necessary access to the resources of Beloit International) to place them in a position to be able

to accept orders for a paper making machine

serving similar functions. Their preparedness

to accept an order was said to have been

advised you during discussions -

and that was the matter which Mr Olliffe went

out to Johns Perry to verify, and did verify,
along with the next element that was one of
the only two elements considered by either he

or Mr Shakespear which was, apart from a willingness

to accept an order, a capacity to produce the machine.

MIT8/l /SDL	25	12/8/88
Amcor

We would say that the difficulty which my learned

friend refers to of an Australian manufacturer

entering a market where he has not previously

accepted any orders at all is one that we say

necessarily flows from the phrase, "normal course

of business" where it appears twice in these

relevant provisions of the Act.

Can we refer the Court, by way of showing

that the Act is by no means the strait-jacket
that might be thought from the reference to

the sections so far made, to the provisions
of section 269E which enables the Comptroller
to override or ignore the previous provisions

of the Act and refuse to make:

a concession order ..... in respect of

particular goods if, in his opinion, the

making of an order -

(a) would be likely to have a substantially
adverse effect on the market for any goods

produced in Australia; or

(b) would not be in the national interest.

So that if the Comptroller were of the opinion

that, in a particular case, it would be desirable

in the national interest for an Australian manufacturer

to enter a new market and, before doing so,

to obtain the protection of the refusal of any

tariff concession orders, then the Comptroller
pursuant to this power could do so and he would

not be restricted to applying the tests which

are set out in the foregoing or the previous

provisions of this part of the Act.

Your Honours, my learned friend referred

to the sum in question and there is a reference

in the affidavit in support of the application

in paragraph S(e) to the amount of revenue which

will be foregone if this tariff concession order

stands or, rather, if one is to be granted in

the end, in that there will be $1 million in

duty, or thereabouts, which will not be paid.

We would say that the amount here is really

not to the point. The tariff is, we would say,

principally a protective tariff not a revenue-

raising device. At the time this case was decided

the revenue component of duty attaching to

these machines was 2 per cent and when an

Australian manufacturer commences to operate

in a market he receives protection from the
tariff but until there is an Australian manufacturer

the effective duty is to increase costs to downstream

industry and, ultimately, to the consumer with

accompanying inflation without any benefit to

anybody.

MIT8/2/SDL	26	12/8/88
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Accordingly, in our submission, no question

of law of general importance is raised by this case. In the end it was a question ultimately of the characterization of facts. The court's general - - -

TOOHEY J:	Mr Buchanan, what I understood Mr Uren to be
saying is that the Full Court erred in placing the
decision maker did not and did not need to go to that subsection, he not being satisfied within the terms of the earlier part of the legislation.
emphasis on (7) when, in his submission, the distilled for the purposes of seeking special leave.

MR BUCHANAN: That, cdth respect, is so,

Your Honour, but it amounts to one which we say

is of no general importance really, because,
in the end what it amounts to is an analysis of
this decision by Mr Shakespear and then the

decision of the Federal Court, to yield the conclusion

that that court misinterpreted that particular

decision, in other words, proceeded on a mistaken

view of what the decision was, and that is conceding

the correctness of everything my learned friend

says about what the Federal Court did.

We would say that that, by itself, is not a

question of law of sufficient importance, or of
general importance, to justify the grant of special

leave.

WILSON J:  Was it a question of law to justify the assumption

of the jurisdiction by the Full Court?

MR BUCHANAN:  With respect, in a sense that is so, because the

error which they identified was the one which enabled

them to make the order they did; that is, return the

matter to the decisior. maker for reconsideration.

WILSON J:  Because the decision ·maker misdirected himself in

law, would that be - - -

MR BUCHANAN:  Yes, but there were really two aspects to it, too,

Your Honour. Not only did the Federal Court say

he misdirected himself in law ~ut he failed to have,

really, any consideration at all to the question

whether or not the capacity of Johns Perry to

produce these goods was one which was in their

normal course of business. That appears, with respect,

at page 51 of the application book. So that it was

not merely that Mr Shakespear misdirected himself,

but also that Mr Shakespear failed to have

consideration to a matter which the legislature

required him to have regard to, and to particular

facts and matters relating to that requirement.

So we would say that even the so-called "error of law," which we say is not made in fact, identified by

M1T8/3/VH	27	12/8/88
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;·

my learned friend, is one which even putting it at

its highest does not involve a question of general

importance in respect of the administration of law

or a point which requires settlement of it by

this Court.

WILSON J:  What about the focussing on this phrase, "the normal

course of business"? Despite the legislation and

the changes relating to paper-making machines, of
course, the fart, I presume, continues in operation

in relation to other matters.

MR BUCHANAN:	Oh, it does, yes.
WILSON J:	Mr Uren, as I understand it, has based his

application in part on the significance of the

statements by the Full Court of what amounts to the normal course of business. In other words, it can never be in the normal course of business

if the particular transaction that is imputed to a

local manufacturer is exceptional or something that

it has not done before. Now, do you say that is not

a matter of general importance?

MR BUCHANAN:  No. No, Your Honour. Apart from the operation

of section 269E, we would say that the words that

appear in the Federal Court's judgment at pages 50 to

51 are consistent with the conclusion that a

manufacturer could demonstrate that he, although

having never made a particular article before,

nevertheless was in a position to fulfil an order
for it, and, because of the range of things he had done
before and the. way in which his business was
organized, that would be capable of answering the
description"accepting an order in the normal course

of his business!' We would say that is possible.

WILSON J: It is necessarily tied in to the range of things

that he has manufactured before.

MR BUCHANAN:	Yes, Your Honour.
WILSON J:	How does a heavy construction show ever get off

the ground?

MR BUCHANAN: Well, for example, suppose that the facts were

that Johns Perry had in the past established, in

effect, a production line for a piece of machinery

which was of comparable size and complexity, but

in another area, suppose it were a milling machine

or a gigantic lathe, and in effect, as part of its

normal business was prepared to branch into the production of new lines of machinery and at the

same time was able to demonstrate a capacity to

make them, we would say that that would be a case

where it would answer the description that is set

out in the section. So that there would be cases

where the protection could be given to a debutante

MlT8/4/VH	28	12/8/88
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manufacturer in a particular area. But we say

again, Your Honour, that we would say in so far as

there is difficulty in entering a new field and

getting protection before you enter it, that is one

which stems not really from the decision of the

Federal Court,which we would say is unexceptional, but rather from the·requirement of the Act itself

that it be in the normal course of business; a

requirement that attaches not only to section 269B(7)

but also to section 269C. For those reasons, we

would submit, the decision does not raise a question

of sufficient importance to justify leave. If the

Court pleases.

WILSON J:  Thank you, Mr Buchanan. Yes, Mr Uren.

MR UREN:	Your Honour, the interpretation of a statute must
always be a matter of law.  Our learned friend said
there was no point of law; there is one. The correct
operation of the tariff in general and also in these particular areas must, in our submission, be a matter of importance, so it is therefore the case that the decision which the Full Court made here does
involve a matter of law which is of public importance.
To the extent that it involves the protection of Australian industry in starting up in new ventures,
it must be a matter of public importance sufficient
to warrant the intervention of this Court.

The Court below did, in fact, interpret the

TARIFF ACT. They told the Ca:rr-troller not only what

it meant but what it required to be taken into account

and, if the Full Court is wrong, then the consequences

are substantial. They were substantial in this case,

or they could have been substantial in this case; they could be substantial in other caseq So when

it has all the ingredients of	points of law -
of importance, with substantial effects	going beyond

this case, and, in our submission, that is the very

paradigm of the case in which this Court should grant

special leave. If the Court pleases.

WILSON J:  Thank you. The Court will give its decision in this

matter at 2.15 this afternoon.

AT 12. 54 PM .THE :MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.16 PM:

WILSON J:  Over the interval, the Court has had an opportunity

of considering this matter. We acknowledge that the

application raises a matter of some importance.

However, we do not think that the decision of the

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Full Court is attended with sufficient doubt

to warrant the grant of special leave. Special

leave will, therefore, be refused.

MR BUCHANAN:	We would ask for costs?
WILSON J:	You cannot contest that, Mr Uren,
MR UREN:	No, Your Honour.

WILSON J: Special leave is refused with costs.

AT 2.17 PM THE MATTER WAS ADJOURNED SINE DIE

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