DOW AGROSCIENCE AUSTRALIA LIMITED and CHIEF EXECUTIVE OFFICER OF CUSTOMS

[2009] AATA 17

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 17

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3845

general Administrative  DIVISION		)
Re		Dow Agroscience australia limited

Applicant

And Chief executive officer of customs

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date12 January 2009

PlaceSydney

Decision The Administrative Appeals Tribunal orders that Nufarm Australia Limited  be joined as a party to the proceedings.

...................[Sgd].....................

Ms N Isenberg, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application to be joined as a party – whether the interests of the party applying to be made joined to the application are affected by the decision under review – whether discretion should be exercised to make joinder applicant a party – criteria relevant to the Tribunal’s exercise of its discretion – order that the joinder applicant be joined as a party to the proceedings

LEGISLATION

Administrative Appeals Tribunal Act 1975 – ss 30(1A), 33 (1AA)
Customs Act 1901 – ss 269C, 269D

CASELAW

Re General Merchandise and Apparel Group Pty Ltd and CEO of Customs (2007) 45 AAR 124
Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262
Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) 32 ALD 463
Re Kenso Marketing (M) SDN BHD and Chief Executive Officer of Customs (2008) 99 ALD 680
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No1) (1980) 3 ALD 74

REASONS FOR DECISION

12 January 2009 Ms N Isenberg, Senior Member   

BACKGROUND

1.      Dow Agroscience Australia Limited (“Dow”) applied to the Respondent, Chief Executive Officer of Customs (“Customs”) for a Tariff Concession Order (“TCO”) for importing Trifluralin Technical (“Trifluralin”) into Australia.  Nufarm Australia Limited (“Nufarm”) produces Trifluralin Technical in Australia, and was the sole objector to the making of the TCO.  Customs decided that the TCO should not be made and this decision was affirmed on internal review.  Dow seeks review by the Tribunal of that decision.

2.      Nufarm has applied to be joined as a party to the proceedings.  While Customs supports Nufarm’s application for joinder, Dow opposes the application.

ISSUE BEFORE THIS TRIBUNAL

3. In accordance with Section 30(1A) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) the issues are:

·Is Nufarm is a person whose interests are affected by Customs’ decision?

·if so, should I exercise my discretion to join Nufarm as a party?

4.      Dow conceded that Nufarm is a person whose interests are affected by the decision under review. 

5.      The sole issue for determination is therefore whether I should exercise my discretion in favour of Nufarm and allow it to join the proceedings.

CONSIDERATION

The substantive matter

6. It is useful to give some brief consideration to the issues of the substantive matter before the Tribunal, namely whether, at the date of lodgement of the application for the TCO, Dow’s application met the “core criteria” set out in s 269C of the Customs Act 1901 (“the Act”). It is not in dispute that the Trifluralin produced by Nufarm is substitutable for the goods described in Dow’s application for a TCO, nor that it is produced by Nufarm in the ordinary course of business.

7. Dow also concedes that the Nufarm Trifluralin is wholly or partly manufactured in Australia. Therefore, according to Dow the only issue in dispute in the substantive matter is whether the Australian content of the Nufarm Trifluralin equals or exceeds 25% of the factory or works costs of the goods: s 269D(1)(b) of the Act.

8.      Notwithstanding these concessions Customs was of the view that the issues were somewhat wider.  Whether that is so, does not affect the outcome of this application.

Should I exercise my discretion to join Nufarm as a party?

9.      Counsel for Dow reminded me that criteria that are relevant to the Tribunal’s exercise of its discretion, discussed in Re General Merchandise and Apparel Group Pty Ltd and CEO of Customs (2007) 45 AAR 124, and Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262, include:

·     the statutory requirement that the Tribunal conducts reviews as expeditiously as possible

·     the increased cost of the proceeding to the parties which will result from the joinder

·     what is required to enable the Tribunal to conduct a fair hearing.

10.     In the substantive matter the Tribunal must decide whether the Australian content of the Nufarm Trifluralin equalled or exceeded 25% of the factory or works costs of the goods at the date of lodgement, i.e. 12 October 2007.  Dow submitted that it follows that the only evidence that is of relevance to the review is as to Nufarm’s factory or works costs for its Trifluralin prior to that date.  It was noted that Nufarm had lodged an objection which, with the supporting submission, totalled about 18 pages.  Nufarm subsequently provided to Customs a further 14 pages of additional documentation in support of its objection.  The inference was that all relevant evidence was already in the hands of Customs.  It was submitted that more information would only be required from Nufarm if the information already provided to Customs is incorrect or unreliable or it is so deficient that it would be unsafe for the Tribunal to make findings on the basis of that information. 

11.     Dow’s approach, in my view, oversimplifies the merits review process.  It does not necessarily follow that the material already provided to Customs is the totality of the relevant evidence that the Tribunal may need to consider.  In any event in Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) 32 ALD 463 (“Comptroller-General”) the Federal Court held that:

The Tribunal… must decide a matter with reference to the evidence before it and not the evidence before the decision maker.

12.     Accordingly, the Comptroller-General decision established that the Tribunal may take additional evidence and decide whether, on the totality of the evidence, the TCO application met the “core criteria”. Customs has already indicated that it is unlikely that no additional evidence will be required for the substantive hearing.  I agree with Customs that Nufarm is uniquely placed to provide information in relation to its business.

13.     It was also submitted that the joinder of Nufarm has the potential to greatly increase the cost to the parties and to prolong both the preparatory portion of the matter and the eventual Tribunal hearing, and that this is a factor to be considered in exercising my discretion: Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262, at 271.

14.     I do not accept that there will be additional expense to Dow should Nufarm be joined, in that the source of any additional evidence – whether from Customs or Nufarm – should be immaterial.  Further, because the evidence is provided by Nufarm itself as a party, rather than through Customs, this may in fact expedite the preparation of the matter for hearing.  I would have thought too that Nufarm has a greater interest than Customs in having the matter speedily resolved.  I accept that the commercial interests of Nufarm may result in it, rather than Customs having the lead role in the proceedings, vis-à-vis Dow.

15. It was also submitted on Dow’s behalf that Customs’ legal representatives are ‘eminently qualified to present the Respondent’s case and in doing so, to protect and represent Nufarm’s legitimate interests’ and hence the joinder of Nufarm would not be of significant assistance to the Tribunal. I agree with the solicitor for Customs that this misstates the role of a respondent before the Tribunal. A respondent has a positive obligation to use his or her best endeavours to assist the Tribunal to make its decision: S33 (1AA) of the AAT Act. This does not mean that it should ‘defend’ its decision, as was submitted on behalf on Dow. It also certainly does not mean that Customs is obliged to champion the position of Nufarm, as counsel for Dow also, effectively, submitted. Nufarm’s interests do not necessarily equate with those of Customs. In this regard I note Re Kenso Marketing (M) SDN BHD and Chief Executive Officer of Customs (2008) 99 ALD 680 where the position of the joined party – co-incidentally Nufarm again – was different to that of Customs.

16.     In exercising the Tribunal’s discretion I note the decision of Davies J in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No1) (1980) 3 ALD 74, particularly at 81, where his Honour said:

While it will ordinarily be the duty of the Tribunal to make an order joining a party whose interests are affected by the decision under review, that duty is limited by the function which the Tribunal performs and by its duty to provide a fair hearing and to deal with the matter as expeditiously as the subject matter of the review permits.

17.     Because of Nufarm’s commercial interests in the outcome it is especially fair that it be joined and thereby represented before the Tribunal.

18. For the above reasons I find it appropriate to exercise the Tribunal’s discretion under section 30(1A) of the AAT Act and to join Nufarm as a party.

DECISION

19.      The Administrative Appeals Tribunal orders that Nufarm be joined as a party to the proceedings.

I certify that the 19  preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:            [Sgd]                       Tim Ngui,  Associate

Date of Hearing  19 December 2008   
Date of Decision  12 January 2009      
Representative for the Applicant               David Boyall, Mason Sier Turnbull
  Lawyers
Representative for the Respondent          Roger Northcote, Australian
  Government Solicitor

Representative of Joinder  Bernard Lee, Nufarm Australia

Limited