East West Trading Co. Pty Ltd v Minister for Industry & Commerce

No judgment structure available for this case.

Re: EAST WEST TRADING CO. PTY. LTD.
And: THE MINISTER FOR INDUSTRY AND COMMERCE; BRIAN GALLAGHER, ASSISTANT
SECRETARY, QUOTA CONTROL BRANCH, AUSTRALIAN CUSTOMS SERVICE
No. G 399 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - jucicial review - Quota scheme for importation of goods - Decision to revoke balances of allocation of base quota and to withdraw previous import performance entitlements - Whether an improper exercise of power by reason of irrelevant considerations being taking into account.

Administrative Decisions (Judicial Review) Act 1977, s.5

Customs Act 1901, s.273

HEARING

CANBERRA
#DATE 17:7:1985

ORDER

THE COURT ORDERS THAT the further hearing of the application be adjourned to a date to be fixed to hear submissions as to the orders to be made to give effect to the conclusion reached by the Court that the decision of the second respondent should be set aside.

JUDGE1

This is an application by East West Trading Co. Pty. Ltd. ("the applicant") under section 5 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a decision made by Mr Brian Gallagher ("the second respondent") under section 273 of the Customs Act 1901 ("the Act"). That decision is described in the further amended application filed herein on behalf of the applicant on 5 December 1984 as a decision -

"to revoke the remaining balances on the applicant's 1984 Textile Clothing and Footwear Base Tariff Quota Allocation, and to withdraw the applicant's Tariff Quota Previous Import Performance entitlements in quota categories 101, 102, 103, 105, 106, 107, 108, 110, 111, 112, 113, 114, 116 and 122, and to treat the applicant's applications for transfer of certain of its said Previous Import Performance entitlements as lapsed."

Tariff quotas are a method of controlling imports to levels determined by the Australian Government. Where goods are allocated a particular quota they may be imported at a rate of duty which is generally lower than the rate applicable if goods are imported beyond the quota levels or are not otherwise the subject of a quota. There is no prohibition on the importation of goods outside the quota arrangements; but, where such goods are imported, what are in substance additional or penalty rates of duty are applied, so as to discourage imports.
The legislative machinery by which tariff quotas are imposed is to be found in section 273 of the Act. That section provides -

"273. (1) The Minister may determine, by instrument in writing, that, subject to the conditions, if any, specified in the determination, an item, or a proposed item, of a Customs Tariff that is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law shall apply, or shall be deemed to have applied, to the particular goods specified in the determination.

(2) The Minister may make a determination under the last preceding sub-section for the purposes of an item, or a proposed item, of a Customs Tariff whether or not he has made a by-law for the purposes of that item or proposed item.

(3) Where, under this section, the Minister determines that an item, or a proposed item, of a Customs Tariff shall apply, or shall be deemed to have applied, to goods, that item or proposed item shall, subject to this Part and to the conditions, if any, specified in the determination, apply, or be deemed to have applied, to those goods as if those goods were specified in a by-law made for the purposes of that item or proposed item and in force on the day on which those goods are or were entered for home consumption."

By virtue of sub-section 9(1) of the Act, the Minister may delegate his powers under, inter alia, section 273. A power so delegated, when exercised by the delegate, is deemed to have been exercised by the Minister (sub-section 9(2)). There is no dispute that the second respondent was at all material times a person to whom the Minister's powers under section 273 had been delegated.
On 15 August 1980 the Minister for Business and Consumer Affairs and the Minister for Industry and Commerce announced new assistance arrangements to be operative from 1 January 1982 which were to provide a seven year programme of tariff quotas for the textile, clothing and footwear industries. The announcement said that -

"Although the program broadly maintains existing tariff quota arrangements for apparel and some finished textile products and applies tariff quotas to footwear it introduces changes which increase the flexibility of the quota system and provide for a controlled increase in imports."

The new arrangements were outlined in a series of Bureau of Customs notices. Under the programme, tariff quotas were to apply to household textiles, apparel and footwear. There were to be quota categories comprising different classes of goods. The initially established quota levels for each category of goods were to be based on the levels of imports in the two year period 1 July 1978 to 30 June 1980 but those levels were to be increased annually. All goods covered by the relevant quota category entered for home consumption in that two year period, if entered correctly, were to be taken into account in ascertaining base performance (or previous import performance). Once established, the base performance was to remain for the seven year period of the programme and was to be applied in each year to determine the importer's share of the total available quota in the relevant categories. The proportion of quota to be allocated on the basis of historic performance was to be 85% of initially established quota levels, importers' entitlements to this quota being determined on their base performance. The remainder of quota was to be sold by tender. The arrangements that had been current under the previous programme for the transfer of quota between parties were to continue to apply.
Clauses 19 and 20 of Bureau of Customs notice 80/175 (13 October 1980), under the sub-heading "Bona Fides of Applicants", provided -

"19. Each applicant will in due course be required to submit a statement setting out brief details of the business operations and certifying that he or his company are engaged in the business of importing goods within the categories claimed. It is emphasised that the statement must be signed by the applicant or a responsible official of an applicant company and statements signed by persons external to the organisation will not be acceptable.

20. A further Customs Notice will be issued providing the form of the statement. APPLICATIONS FOR QUOTA WILL NOT BE CONSIDERED COMPLETE WITHOUT THIS STATEMENT AND FAILURE TO LODGE IT CORRECTLY COMPLETED WILL MEAN QUOTA WILL NOT BE ISSUED TO THAT APPLICANT."

Bureau of Customs notice 81/24 (6 February 1981) made it clear that, under the arrangements to operate from 1 January 1982, base quota would only be allocated in each of the seven years of the programme to those described as "genuine importers". That expression was explained as meaning -

"importers who are still in the business of importing and trading in the goods to which the particular quota is applicable".

The notice informed applicants of the form of the statement of bona fides required to be furnished and reminded them that the Act provided penalties for the supply of false or misleading statements.

Attached to the notice was a pro forma statement to be completed by each applicant for tariff quota for the quota year commencing 1 January 1982 reading as follows -

"I, ........ ........ ........ ........ ........ .(Name)

........ ........ ........ ........ ........ ..(Address)

declare that I am

* the Applicant

* a Director of the Applicant Company

* The Secretary of the Applicant Company,

and that during the two years ending 30 June 1980 *I/the Applicant Company was engaged in importing and trading in the goods for which application for 1982 quota was made. I further declare that *I/the Applicant Company *am/is still engaged in the importation and trading in those goods for which application for 1982 quota was made.

I declare that all the information contained in this Statement is true and correct and acknowledge that any grant of quota to *me/the Applicant Company in respect of the quota categories applied for is subject always to the truth and correctness of this statement.

........ ....(Signature)"

An applicant was to delete whichever of the provisions marked with an asterisk were inapplicable.

The notice also contained the following provisions -

"4. This Statement must be completed and signed by the applicant or an officer of the applicant company. Statements signed by persons external to the applicant company, e.g. customs agents, consultants, accountants, etc will NOT be accepted ....

5. It is emphasised that the purpose of this Statement is to ensure that the applicant for quota

(1) was during all, or part of, the base period (two year period ending 30 June 1980) and (2) is still engaged in the business of importing and trading in the particular quota goods. A separate Statement will be called for before the commencement of each quota year after 1982.

....

8. Persons claiming to be indent agents will have to establish that they do provide other services to customers rather than merely make quota available, before 1982 quota will be issued to them.

9. Persons whose business in quota goods is in 'renting' quota entitlement to others will be INELIGIBLE for quota allocation."

In relation to the transferability of quota, Bureau of Customs notice 81/24 provided -

"15. .... For the benefit of importers who wish to transfer quota which for any reason they are unable to utilise themselves it is pointed out that the balance of quota available in a quota period may be transferred and the base performance from which the quota was derived may also be transferred. However, the base performance will only be transferred if the transfer request specifically says so. In other words, the transferring of the balance of current quota need have no effect on base performance."

The applicant applied for tariff quota for the quota year commencing 1 January 1982, the application being accompanied by the necessary statement as to its bona fides which had been completed on its behalf. An allocation of quota in respect of that quota year was subsequently made to the applicant.
The implementation of the new arrangements brought about some changes in the previously existing procedures for the transfer of quota. Australian Customs notice 82/62 (15 April 1982) consolidated and replaced the notices setting out details of the previously existing procedures. It was provided that, in general, quota might be transferred in whole or in part between parties within the particular quota category of goods concerned. Under the sub-heading "Effect of Transfer" the notice provided -

"The acquisition of quota for a specific quantity of goods as a result of a transfer, gives the transferee the right to import and enter for home consumption under quota by-law rates of duty, those goods the subject of the quota within the remaining period of validity of the quota instrument."

The notice also dealt with "Previous Import Performance (PIP) Transfers" as follows -

"Applications to transfer previous import performance must be submitted giving full details of the category, the quantity to be transferred, the name, owner code and registered business address of the transferee. The transferor and transferee will be sent a letter of advice when the transfer has been effected."

By letter dated 22 July 1982 the applicant was invited to apply for an allocation of base quota for the quota year commencing 1 January 1983. The body of the letter read -

"1983 Base Quota - Textiles, Clothing and Footwear

CLOSING DATE FOR APPLICATIONS 31 August 1982

The Government has decided that Base Quota may only be issued to genuine importers who hold Previous Import Performance (PIP). As Departmental records indicate that you hold PIP, you may now apply for an allocation of Base Quota using the enclosed form, provided that you genuinely intend to import quota goods in 1983.

Your attention is drawn to Section 234(e) of the Customs Act which is reproduced below.

Completed application forms must be received in this office by 31 August 1982 otherwise entitlement to 1983 Base Quota may be forfeited.

Australian Customs Notice No 82/141 sets out entitlement provisions in respect of PIP transferred after the date of this letter."

Section 234(e) of the Act as then in force created an offence, punishable by a maximum penalty of $1,000, of making in a document produced to an officer of Customs a statement untrue in any particular. The maximum penalty was subsequently increased.
The applicant completed a pro-forma application dated 30 July 1982 for 1983 base quota. The application read -

"The applicant named below applies for the allocation of Base Quota for the calendar year 1983 based upon holdings of previous import performance.

The applicant undertakes that upon the issue of any 1983 base quota allocated as a result of this application, that (sic) the base quota will be used, for the purpose of entry and clearance of goods owned by the applicant, at the appropriate concessional rate of duty as specified in the Customs (Tariff) Act."

The applicant was subsequently allocated quota in respect of the year commencing 1 January 1983.

Australian Customs notice 83/100 (18 May 1983) replaced certain earlier notices and outlined new arrangements to operate from the date of its issue. Paragraphs 3-9 were in the following terms -

"3. CONTROLS ON THE TRANSFER OF QUOTA ARE AIMED AT TRADERS WHO SPECULATE IN QUOTA. THE CONTROLS ARE NOT AIMED AT THOSE WHO USE QUOTA IN IMPORTING AND CLEARING GOODS.

4. Quota entitlements have been made transferable to allow improved access to quota for those importers who can use it effectively to import goods. Any transfer of quota allocations which relates to the business of speculating in quota (as opposed to trading in goods) is clearly outside of this objective and will not be approved.

5. Transfers of PIP will not be approved if the proposed transferee is ineligible to receive quota. Holders of PIP who do not qualify for the issue of quota are advised to arrange transfer of the PIP to an eligible importer as soon as possible.

6. Importers are cautioned against entering into arrangements which purport to allow others to exercise commercial control over PIP or quota allocations which are held in their name. If it becomes evident that arrangements of this type are being used by quota speculators, the PIP concerned will not be recognised for future quota allocations and/or the quota instrument will be revoked. This will have the effect of increasing quota allocations to genuine importers.

QUOTA BROKERS AND QUOTA TRADERS

7. Brokers who act to bring a transferor and transferee together to facilitate a transfer provide a service to importers which is consistent with the aims of the quota schemes.

8. However, quota traders who seek to obtain control over PIP or quota for the purpose of future transfer are regarded as speculators. Transfers on their behalf will not be processed.

APPLICATIONS FOR TRANSFER OF BASE QUOTA ALLOCATIONS

9. The whole or part of a base quota allocation may be transferred to a genuine importer.... Transfer applications in duplicate must be made by the transferor and transferee on the forms set out in Attachments A and B to this Notice."

Under the sub-heading "Effect of Transfer of Base Quota Allocations", paragraph 16 provided -

"16. THE QUOTA ISSUED AS A RESULT OF A TRANSFER OF QUOTA ENTITLEMENT WILL ONLY BE VALID FROM THE DATE OF THE ISSUE OF THE QUOTA INSTRUMENT UNTIL THE EXPIRY OF THE QUOTA PERIOD...."

Under the sub-heading "Transfers of Previous Import Performance (PIP)", paragraph 20 read -

"20. Applications to transfer PIP must be submitted in duplicate by the transferor and transferee on the forms set out in Attachment C and D to this Notice. The forms must be submitted with a covering letter signed by the PIP holder or an authorised officer of the PIP holder."

Attachment A to that document set out the form of request to transfer base quota allocation. Attachment B set out the form of application for approval to receive base quota allocation by transfer. An applicant was required to state and declare -

"(a) that I believe the information contained in this application to be true and correct, and

(b) that the tariff quota detailed in this application will, if obtained, be used by the applicant for the purposes of entry and clearance of goods owned by the applicant, at the time of entry for home consumption,

(c) that no other party has any encumbrance on the quota."

Attachment C set out the form of request to transfer previous import performance and required the applicant to state -

"that no other party has any encumbrance on this Previous Import Performance at or prior to the date of this request."

Attachment D, the form of application for approval to receive previous import performance by transfer, required the transferee to state -

"that no other party has any encumbrance on this Previous Import Performance."

Australian Customs notice 83/127 (6 July 1983) related to applications for base quota for the year commencing 1 January 1984. It recorded that letters had been sent to all holders of previous import performance inviting only those who were genuine importers to apply for such quota. It continued -

"ELIGIBILITY FOR QUOTA ALLOCATION

Holders of PIP can be issued with quota only if such quota is to be used to enter goods at quota rates of duty. Transfers of PIP will not be approved if the proposed transferee is ineligible to receive quota. Holders of PIP who do not qualify for the issue of quota are advised to arrange transfer of the PIP to an eligible importer as soon as possible and certainly before 31 August 1983 if the PIP is to qualify for issue of 1984 quota.

Importers are cautioned against entering into arrangements which purport to allow others to exercise commercial control over PIP which is held in their name. If it becomes evident that arrangements of this type are being used by quota speculators, the PIP concerned will not be recognised for future quota allocations. This will have the effect of increasing quota allocations to genuine importers.

It is pointed out that quota is issued to importers only so that they may enter their own goods for home consumption. In future importers may be asked for detailed Statutory Declarations that they were the beneficial owners of specific clearances against quota which were entered for home consumption in their name. Failure to supply a suitable declaration when required could jeopardise further allocation of quota.

TRANSFERS OF PREVIOUS IMPORT PERFORMANCE

CONTROLS ON THE TRANSFER OF PIP ARE AIMED AT TRADERS WHO SPECULATE IN QUOTA. THE CONTROLS ARE NOT AIMED AT THOSE WHO USE QUOTA IN IMPORTING AND CLEARING GOODS.

Where a request to transfer PIP is received in accordance with the administrative procedures detailed in ACN 83/100, and before close of business on 31 August 1983, the transferee will be entitled to apply for 1984 quota. For a request received after 31 August 1983 the transferor will retain the rights to apply for 1984 quota. However quota will not be issued in either case unless it is to be used to enter for home consumption goods which are beneficially owned by the quota holder."

By letter dated 4 July 1983 the applicant was invited to apply for an allocation of 1984 base quota. The letter read in part -

"Departmental records indicate that you hold Previous Import Performance (PIP) in one or more of the Textiles, Clothing and Footwear quota categories.

You are now invited to apply for an allocation of Base Quota for 1984 using the enclosed form, provided that you genuinely intend to import quota goods in 1984. I direct your attention to Section 234(e) of the Customs Act which is re-produced below. Applications will not be accepted unless signed by the applicant personally or by an authorised officer of the applicant.

It is pointed out that quota is issued to importers only so that they may clear for home consumption at quota rates of duty goods which they beneficially own. In future importers may be asked for detailed Statutory Declarations signed by an office bearer of the company that they were the beneficial owners of specific imports against quota which were entered for home consumption in their name. Failure to supply a suitable declaration when required could jeopardise further allocation of quota.

Measures which are being taken to control the issue and transferability of quota are designed to combat speculation in quota. Any importer who seeks quota as a means to import and clear goods has no cause for concern at these measures. Genuine importers who wish to vary their quota holding in a particular year to respond to market supply or demand may do so without fear.

Quota is not available to those who see quota as a commodity in which to trade.

If you decide to decline quota in one or more categories for 1984 it will not affect your entitlement to future base quota allocation within the seven year TCF programme. However, you are requested to advise your intentions for 1984 as soon as possible. If you do not require all or part of your quota in 1984 in one or more categories you must advise this office in writing by the closing date of 31 August 1983.

TRANSFERS OF PIP

If you wish to transfer your PIP and a request to transfer is received in this office by Close of Business on 31 August 1983, the transferee will be entitled to apply for 1984 quota.

If your request for transfer of PIP is received after 31 August 1983, you, as transferor will retain your 1984 quota entitlement but that quota will not be issued unless you intend to use it to import and clear goods.

Completed application forms must be received in this office by Close of Business on 31 August 1983, otherwise entitlement to 1984 quota will be forfeited by you and issued to other quota holders.

The applicant applied on 7 July 1983 in the following terms -

"The applicant named below applies for the allocation of Base Quota for the calendar year 1984 based upon holdings of previous import performance in Categories: 101 102 103 105 106 107 108 110 111 112 113 114 116 122.

The applicant undertakes that upon the issue of any 1984 base quota allocated as a result of this application, the base quota will be used, for the purposes of entry and clearance of goods owned by the applicant at the time of entry for home consumption."

The applicant was allocated quota in respect of the year commencing 1 January 1984 and determinations, signed by the second respondent as delegate of the Minister, were made in relation to the applicant. The body of each such determination read -

"In pursuance of Section 273 of the Customs Act 1901, I, the delegate of the Minister for the time being administering the said Act, hereby determine that the item in Part II of Schedule 4 to the Customs Tariff Act 1982, as proposed to be altered, set out in Column 1 of the Table hereunder, shall apply to goods that are:

(i) specified in Column 3 of that Table and to which a tariff classification in Schedule 3 to the Customs Tariff Act 1982, as proposed to be altered, set out in column 2 of that Table opposite that item applies; and

(ii) entered for home consumption not earlier than the first day of January 1984 and not later than the thirty-first day of December 1984 in total not in excess of such quantity or of such value as is specified in words and figures in Column 4 of that Table - entered for home consumption by the owner specified above."

Australian Customs notice 84/127 (29 June 1984) was issued in relation to applications for 1985 base quota. It provided in part -

"APPLICATIONS FOR 1985 BASE QUOTA

It is anticipated that letters will be despatched early in September 1984 to all holders of PIP inviting them to apply for their 1985 base quota allocation. This letter will include details of PIP holdings, as indicated by Quota Control Branch files, on 31 August 1984. An opportunity will be provided for PIP holders to have these details rechecked, and confirmed PIP holdings on this date will be the basis for 1985 base quota allocations.

In applying for an allocation of quota in 1985 PIP holders will be required, as has been the case in past years, to sign a statement to the effect that they intend to use 1985 quota to import goods beneficially owned by them.

Requests for transfers of PIP received after 31 August will be processed in the normal way, but any transfer approved will not be reflected in 1985 quota allocations; the PIP holder as at 31 August (i.e. the transferor) will retain the entitlement to the 1985 allocation subject to his meeting normal genuine importer criteria. Should this PIP holder request transfer(s) of his 1985 allocation, an explanation may be sought of his request in the light of his previously signed statement of intention to import."

On 1 August 1984 a notice over the signature of the second respondent was sent to all base quota holders. It included the following -

"I am writing to you concerning 1985 allocation of base quota to import textile, clothing and footwear products.

As in previous years all base quota holders will be required to apply for their 1985 base quota allocation, and the application will include a statement to be signed by the quota holder to the effect that they undertake to use the quota to clear for home consumption at quota rates of duty goods that are beneficially owned by the quota holder. This undertaking is an important element in a range of measures which seek to ensure that quota is available to genuine importers by discouraging activities such as speculation in and leasing of quota.

Application forms for a 1985 base quota allocation will be despatched to all PIP holders in early September 1984, for completion and return to the Quota Control Branch by 28 September 1984."

The applicant entered into agreements to transfer its previous import performance entitlements and applications for approval of those transfers were lodged with the second respondent in August and September 1984. These are the transfers referred to as lapsed in the decision the subject of the present application.
The decision in respect of which an order of review is sought was contained in a letter dated 22 November 1984 written by the second respondent to Mr Melwani, the managing director of the applicant. It read as follows -

"I refer to my letter of 12 September 1984 and to discussions and correspondence both before and after that date concerning quota allocations to East West Trading Company Pty. Ltd.

I and other officers of the Quota Control Branch have carefully examined your use of quota in 1983 and to date in 1984. Information available from our records identifies overseas suppliers from whom goods were sourced and also identifies other Australian importers using those suppliers. It is possible also to identify the shipping arrangements and Customs Agents involved in each entry lodged with customs.

From our examination, the following points can be made in respect of quota use by East West Trading during the period in question

- many of the orders placed by East West Trading have identical, consecutive or otherwise similar order numbers to those placed by certain other quota holders;

- there are other obvious points of similarity in these orders including

. Style Numbers

. Garment descriptions

. Labels on, and sewn into, garments (including labels exclusive to other Australian suppliers/retailers).

- in many instances an order placed by East West Trading has corresponded with an order by another quota holder which has exhausted or nearly exhausted the other quota holder's allocation.

- in several instances there is an apparent connection between shipping and Customs clearance arrangements for imports by East West Trading and arrangements for similar imports by some other quota holders.

In discussions on 20 July, 23 August and 5 October officers of this Branch, including myself, have raised with you these aspects of the use of quota by EWT. From my involvement in those discussions and from the reports I have received of the discussions at which I was not present, I am satisfied that the points of similarity between the import arrangements and quota use of EWT and the arrangements of some other quota holders are not coincidental. Indeed the discussions referred to have confirmed that the goods entered for home consumption against quota allocations to East West Trading were ordered on instructions from those other quota holders who had similar orders and were sold to them after clearance.

Our examination of documents has established that orders were placed, letters of credit established and shipping arrangements were made in the name of East West Trading. I do not seek to refute your claim that you have borne the financial risk associated with the importation and entry (of) goods subject to quota.

The quota arrangements applying to textiles, clothing and footwear products include a provision that quota be available only to genuine importers; that is, for use in respect of goods beneficially owned by the importer. Where it becomes evident that arrangements for quota use are not consistent with this provision, quota allocations may be revoked and PIP not recognised for future allocation.

As I have indicated in earlier communications, it is appropriate that I consider the essential character of a quota holder's activities, as well as documentary evidence of ownership of goods entered against quota allocations, in forming an opinion, and coming to a decision as to whether those activities are consistent with the genuine importer provisions.

On the basis of the information available to me, I am satisfied that the essential character of the use by East West Trading of its quota allocations in 1983 and 1984 has been to exploit the scarcity value of the quota through arrangements whereby its quota holdings were made available to other parties to complement or supplement an import program of those other parties, and to avoid the controls maintained on transfers to ensure importers align their quota holdings with their requirements. As such, the quota use is not consistent with the genuine importer requirement.

I have therefore decided to revoke the remaining balances on base quota allocations for 1984, and to withdraw the previous import performance entitlements (PIP) held by East West Trading Company Pty. Ltd. in the following quota categories: 101, 102, 103, 105, 106, 107, 108, 110, 111, 112, 113, 114, 116, 122.

As a result of this decision, the applications for transfer of previous import performance have been lapsed.

The Minister for Industry and Commerce has provided a procedure whereby persons who are refused allocations of base quota may, if they are of the opinion that the decision is incorrect, lodge an appeal to him through with (sic) the Independent Adviser on textiles, clothing and footwear quotas .... This procedure does not of course affect any rights of appeal through the courts."

On 22 November 1984 further determinations under section 273 of the Act relating to the applicant were made whereby it was determined that the relevant items in the Customs Tariff Act 1982 were no longer to apply to goods of the description to which those items applied entered for home consumption by the applicant.
The applicant, pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977, requested the second respondent to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. The statement was furnished on 4 February 1985. It is too lengthy to be set out here in full but it is necessary to refer to certain parts of it.
After referring to the general nature of the scheme as published in the relevant notices to some of which reference has already been made and to the policy that quota was not to be "held or traded principally because of its scarcity value" but was only to be held by, and available to, "genuine importers", that is to those who had an import requirement for it (paragraph 9), paragraphs 12 and 13 of the statement read as follows -

"12. On 11 August 1983, the Minister for Industry and Commerce approved the continuation of the Department's interpretation of 'genuine importer' for quota purposes. This interpretation permitted the Department to regard an importer as genuine, within the quota regime, if he had a genuine need for the full amount of quota applied for, in order to clear his own goods at within quota rates of duty.

13. The administration of the genuine importer policy involves a number of procedures and checks to ensure that quota is used by quota holders to import goods which they beneficially own.

. Before base quota is allocated each year, holders of PIP are required to complete and sign an application for quota. The application includes an undertaking that the applicant will use the quota for the entry for home consumption of goods beneficially owned by the applicant.

. Where a substantial proportion of quota is transferred, the quota holder is asked to explain the use of that quota and to establish his requirement for future periods. If he is able to provide a reasonable explanation of transfers and of future intentions quota is released unconditionally. If a satisfactory solution is not provided, or if transfer activity proceeds, quota may be allocated on a confirmed order basis or the quota allocation and PIP cancelled. If quota allocation is placed on a confirmed order basis the quota holder retains the right to transfer his PIP entitlement and any outstanding allocation.

. Where there is evidence that the quota holder is using or trading his quota in a manner consistent with exploiting its scarcity value the quota holder is asked to explain his activity. If a satisfactory explanation is provided the quota is released unconditionally. If the quota holder is unable to establish that the quota is being used consistent with the genuine importer criteria then quota allocation and PIP entitlement may be cancelled."

Having referred to the applications made by the applicant for the allocation of base quota for the years commencing on 1 January 1982, 1983 and 1984 respectively, to reports of interviews had by Customs officers with Mr Melwani who, as I have said, was the managing director of the applicant, to correspondence between the parties and to the applications made in August and September 1984 by the applicant for approval of the transfer of its previous import performance entitlements, the statement under section 13 referred to an examination which the second respondent had made of a number of entries for home consumption made by the applicant and entries for similar goods made by certain other persons. That examination was said to have identified certain similarities between the entries of the applicant and those of other parties.
What was said in the statement under section 13 in respect of that examination was supplemented by an affidavit sworn by the second respondent on 11 March 1985. From that affidavit it appears that the second respondent made an examination not only of the relevant entries but also of the supporting documents relating thereto, including invoices, bills of lading, packing lists, letters of credit and orders placed on overseas suppliers. It is unnecessary to set out the details of the documents examined by the second respondent. It is sufficient to refer generally to the conclusions at which the second respondent arrived as a result. To take one example, the second respondent said he had examined the documents relating to three importations by the applicant in February and March 1984 of goods supplied by Macau Knitters Limited and the documents relating to two importations by a firm called Manhattan Mens Wear of similar goods in March 1984. From his examination of those documents the second respondent made what he called "the following observations" -

"(a) the goods ordered by Manhattan Mens Wear and East West were ordered from the same supplier, Macau Knitters Ltd

(b) all shipments were labelled Huntley, on the hang tags and labels

(c) sales confirmation numbers were consecutive

(d) style numbers were the same for four of the five invoices

(e) the Bill of Lading numbers were consecutive

(f) the two shipments to Manhattan Mens Wear arrived on the same vessel as one of the East West importations

(g) from Mr Wells' interview notes of discussions between Mr Morgan and Mr Melwani ... Mr Melwani stated that East West were given samples and orders. East West imported and gave 90 day credit."

Mr Wells and Mr Morgan were officers of Customs. The second respondent then expressed his conclusion as follows -

"In the light of the similarities between the entries for home consumption by East West and Manhattan Mens Wear, and the discussions with East West which established that goods imported by East West with these entries were for Manhattan Mens Wear I considered the applicant's involvement to be principally because he had quota available."

The statement under section 13 set out the reasons for the decision in the following terms -

"36. An integral element of the present TCF sectoral program is that quota is available only to genuine importers. There are a number of provisions of the sectoral program, including the provisions for transfer of quota and PIP and the sale of quota by tender which seek to afford to importers the flexibility to align their quota with their importing requirement. The 'genuine importer' provision reflects the government's recognition that quotas impose quantitative limitations which could encourage the retention of, or trading in quotas other than for an importing requirement to the detriment of the flexibility intended for importers.

36A. Importers are regarded as 'Genuine Importers' if they engage in the business of importing and trading in the goods to which quota allocated to them is applicable. Practices which involve the retention or trading of quotas other than for an importing requirement are actively discouraged. These practices include the leasing or renting of quota whereby quota allocation is made available for use by others, and speculation in quota allocations whereby quota is bought and sold by a person who has no intention to use (it) to import goods. Measures involved in the implementation of the genuine importer policy are outlined in paragraph 13 above.

37. The 'genuine importer' criteria (sic) has been widely publicised both during and before the introduction of the current 7 year systems arrangements for the TCF industries. In inviting holders of previous import performance to apply for quota for the quota years 1982, 1983 and 1984 the requirements that quota be used as part of a genuine importer requirement has been emphasised. A number of other public statements in particular Australian Customs Notices have also spelt the requirements of the genuine importer policy.

38. The 'genuine importer' criteria (sic) is an established and integral part of the current TCF arrangements and has been brought to the attention of base quota holders and prospective importers.

39. From the information available to me in respect of the use of quota allocated to East West for the 1983 and 1984 quota arrangements it is evident that:

. many of the orders placed by East West Trading have identical, consecutive or otherwise similar order numbers to those placed by certain other quota holders;

. there are other obvious points of similarity in these orders including

- Style Numbers

- Garment descriptions

- Labels on, and sewn into garments (including labels exclusive to other Australian suppliers/retailers).

. in several instances there is an apparent connection between shipping and Customs clearance arrangements for imports by East West Trading and arrangements for similar imports by some other quota holders.

40. In discussion on 20 July, 23 August and 5 October the quota use by East West Trading was discussed with officers of the Quota Control Branch. From my involvement in the discussion of 5 October and from the reports I have received at the discussions at which I was not present I am satisfied that the points and (sic) similarity between import arrangements and the quota use of East West, and the arrangements of some other quota holders are not coincidental. The discussions referred confirmed that the goods entered for home consumption against quota allocations to East West were ordered on instructions from other quota holders who had similar orders, and was sold to those other quota holders after clearance.

41. I have noted the claim by East West that orders were placed, letters of credit established and shipping arrangements made in its name. Even if the company's claim that it has borne the financial risk associated with the importation and entry of goods subject to quota is correct, this would not necessarily establish that the use of quota was consistent with the 'genuine importer' criteria (sic).

42. I have considered the claim made by F.G. Packer & Co. on behalf of East West that it is an irrelevant factor to consider whether or not East West's various purchasers themselves have imported or hope to import goods similar to those imported by East West.

43. On the basis of the information available to me at the time a decision was taken on 22 November 1984, I was satisfied that the essential character of the use by East West of a substantial part of its quota allocations in 1983 and 1984 was of a type consistent with the exploitation of the scarcity value of quota, in that the company entered arrangements whereby its quota holdings were made available to other parties to complement or supplement an import program of those other parties and whereby the controls maintained on transfers to ensure importers align their quota holdings with their import requirements were avoided. In the light of the foregoing I decided that quota used by East West Trading was not consistent with the 'genuine importer' requirement. I therefore revoked the remaining balances on base quota allocations to the company for 1984. I also withdrew previous import performance entitlements held by East West and caused applications for transfer of previous import performance to be lapsed."

When the application came on for hearing the respondents objected to the jurisdiction of the Court to entertain the application. It was submitted that the Court lacked jurisdiction to hear the application in so far as it relates to the decision of the second respondent to deprive the applicant of the benefit of the remaining balances of its quota allocation for the year that commenced on 1 January 1984 on the ground that the decision was one which, at the time the application came on for hearing, could have no operative effect for any purpose, present or future, and that the Administrative Decisions (Judicial Review) Act 1977, on its proper construction, does not confer jurisdiction in respect of such a decision. The decision was said to have no relevant operative effect because -

(a) the period during which the 1984 quota allocation could be availed of by the applicant had expired, the relevant determination under section 273 of the Act applying only to goods entered for home consumption not later than 31 December 1984; and

(b) the existence or otherwise of a 1984 base quota allocation was irrelevant to the question whether, under the scheme, the applicant should be granted base quota in respect of the year commencing on 1 January 1985.

In so far as the application relates to the withdrawal of the applicant's previous import performance entitlements, it was submitted that there was no decision to which the Administrative Decisions (Judicial Review) Act 1977 applied. The decision, it was said, was not one made "under an enactment" within the meaning of that expression in the definition of "decision to which this Act applies" in sub-section 3(1) of that Act, the entitlement to previous import performance and the criteria by which eligibility to participate in the administrative scheme was to be determined being unrelated to any statutory power or statutory provision. It was further submitted that, even if the decision to withdraw the applicant's previous import performance entitlements could be shown to be a relevant and material consideration in respect of a subsequent decision reviewable under the Act, that circumstance might result in the earlier decision being reviewed in the course of reviewing the later decision but it would not result in the earlier decision answering the description of a decision made under an enactment so as to be itself the subject of an application for an order of review. There was, in any event, so it was argued, no relevant subsequent decision before the Court.
After hearing argument upon the objection I ruled that the Court had jurisdiction to hear the application and stated that I would give reasons for that ruling when giving judgment on the substantive application. This I now proceed to do.
The decision to deprive the applicant of the benefit of the remaining balances of its 1984 base quota allocation, involving as it did a determination under section 273 of the Act having the effect that the lower rates of duty would no longer be available in respect of goods of the requisite categories thereafter entered for home consumption by the applicant, was clearly a decision of an administrative character made under an enactment so as to attract the jurisdiction of this Court under the Administrative Decisions (Judicial Review) Act 1977. Indeed, so much was conceded by counsel for the respondents. The Court's jurisdiction to review that decision or the conduct leading up to it was invoked by an application filed on 13 November 1984, an application which was amended on 30 November 1984 and again on 5 December 1984. Even if it be correct to say that the decision ceased to have any operative effect after 31 December 1984, a view which I do not share, that circumstance, while it might affect the relief that might be granted, would not deprive the Court of the jurisdiction which had been effectively invoked by the filing of the application.
The decision to withdraw the applicant's previous import performance entitlements, considered in the context of the circumstances in which it occurred, involved in my opinion a decision to refuse to make a determination under section 273 of the Act extending to the applicant in respect of the year commencing on 1 January 1985 any entitlement to import goods within the relevant categories at the lower rates of duty. So considered, the decision was a decision made under an enactment and as such a decision to which the provisions of the Administrative Decisions (Judicial Review) Act 1977 applied.
It was also argued on behalf of the respondents that the Court should determine, as a preliminary question, that in the exercise of its discretion it would not entertain the application in so far as it relates to the decision to deprive the applicant of the remaining balances of its 1984 base quota allocation. It was said that the Court should do so on the ground that there was no relief which could be granted to the applicant which would produce any meaningful or useful result, the period during which the applicant might avail itself of that quota allocation having expired. I rejected that submission on the basis that it was premature to consider the question of the exercise of the Court's discretion until the Court was seized of the evidentiary material which the parties desired to place before it and the issues had been more clearly defined.
I turn now to the substance of the application. The applicant relied upon paragraph 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 read with paragraphs 5(2)(a) and 5(2)(g). It was submitted that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that irrelevant considerations were taken into account in the exercise of the power and that the exercise of the power was so unreasonable that no reasonable person could have so exercised it. The applicant also submitted that there was no evidence or other material to justify the making of the decision (paragraph 5(1)(h)) by reason of the fact that the second respondent based the decision on the existence of a particular fact, namely that the applicant was not a genuine importer, and that fact did not exist (paragraph 5(3)(b)).
The applicant's submission, in essence, was that, in making the decision under review, the second respondent, although purporting to carry into effect the administrative scheme embodied in the various notices and other documents by which the terms of that scheme had been made known to those whose activities it was designed to regulate including the applicant, had in fact departed from the scheme as so notified and had relied on matters extraneous to it.
It was submitted that an analysis of the relevant notices and other documents embodying the scheme demonstrated that the grounds upon which the applicant might be deprived of its entitlement to the remaining balances of its 1984 base quota were -

(a) that the applicant was not, in respect of goods imported in its name during 1983 and 1984, the genuine importer of those goods within the meaning that the scheme assigned to that expression, that is to say, a person who was the beneficial owner of the goods at the time they were entered for home consumption pursuant to the Act;

(b) that the applicant was not bona fide engaged in the business of importing and trading in goods within the relevant categories;

(c) that the applicant was speculating in base quota, that is buying or selling such quota for a profit; or

(d) that the applicant had leased or rented its quota or had entered into arrangements whereby other persons had "commercial control" over the base quota allocated to it.

Counsel relied on the circumstance that the second respondent had made no finding adverse to the applicant on any of the above matters. Indeed, in relation to the question whether the applicant was a genuine importer, counsel emphasised that the second respondent had not disputed that the applicant bore the financial risk associated with the importation and entry of the goods and had expressly found that the goods imported by the applicant were sold by it after the clearance of the goods through Customs. The fact that the second respondent regarded it as significant that those sales had been made to traders who had themselves been allocated base quota in respect of the same type of goods did not show, so it was submitted, that the goods were not beneficially owned by the applicant at the time of entry. Indeed, the finding was consistent only with the applicant being the beneficial owner of the goods at the time of entry.
Counsel for the respondents submitted that the second respondent had found, as a fact, that what the applicant had done was to make its quota available to supplement or complement the importing programmes of others. That finding or conclusion was said to involve, in substance, findings that there were other importers who wished to import quantities of goods at the lower rates of duty but who did not have sufficient quota to enable them to do so and that those importers made arrangements with the applicant whereby the applicant would make its quota available for the purpose of supplementing or complementing those importers' programmes. The applicant was said to have agreed with each of those other importers that it would place an order for goods specified by that importer, at a time specified by that importer, with an overseas supplier specified by that importer, those goods to bear labels as specified by that importer and to be shipped on a vessel and voyage so specified. The arrangement was also said to provide that the applicant would purchase the goods in its own name, pay the overseas supplier, import the goods as beneficial owner and re-sell them to the other importer at an agreed price.
It was further submitted that, although the arrangement with those other importers included a provision that the applicant would import the goods as beneficial owner, the applicant was at all times subject to a contractual obligation to re-sell the goods, or otherwise pass the property in them, to the other party or, alternatively, that the goods were, while in the applicant's hands, subject to a trust in favour of the other importer. In this way and to this extent it was true to say, so it was submitted, that the other importer had control of the whole transaction, including control of the applicant's use of its quota.
Counsel submitted, however, that the true legal analysis, whatever it might be, of what took place between the applicant and the other importers was not to the point: it was sufficient, he argued, that what had occurred could reasonably be seen by the second respondent "to fall outside the purpose and intention of the quota scheme". In this regard counsel pointed to paragraphs 5 and 8 of Bureau of Customs notice 81/24 (6 February 1981) the text of which is set out above and submitted that it was reasonable for the second respondent to find that the applicant was not "engaged in the business of importing and trading in the particular quota goods" but was "merely making quota available". It was also reasonable, so it was submitted, for the second respondent to find that what occurred involved the applicant entering into arrangements which purported "to allow others to exercise commercial control over PIP or quota allocations" held in its name (see Australian Customs notice 83/100 (18 May 1983), paragraph 6). The substance of the matter was, so counsel submitted, that the applicant had agreed to use its quota as directed by the other importer while importing the goods in its own name and remaining the beneficial owner thereof at the time of entry. In the result, the conclusion was open to the second respondent, so it was submitted, that the applicant was not a "genuine importer".

In the alternative, counsel for the respondents took wider ground. Conceding for the purpose of this alternative argument that the applicant's mode of carrying on its business was not in breach of any of the terms of the administrative scheme as announced in the various documents and notices to which reference has been made, nevertheless it was submitted that it was open to the second respondent to reach the decision he did on the basis that the applicant's conduct did not fall within "the spirit and intention of the policy" in relation to quotas.
Counsel's argument on this alternative way of putting the case for the respondents may be summarised as follows -

(a) The scheme, not being contained in a statute or in regulations made under a statute, was nothing more than a statement of how the policy in relation to quotas was to be administered. Accordingly, the scheme might be changed at will by the Minister or by any delegate of the Minister. Having regard to the width of the power conferred by section 273 of the Act, a decision to vary or amend the scheme would not, in ordinary circumstances, involve taking into account irrelevant considerations or failing to take into account relevant considerations.

(b) Just as the Minister or a delegate might vary the scheme in any way he chose, so he might interpret terms in the scheme in whatever way he saw fit. If his interpretation was one that the words could not bear, that only meant that what he had done in a particular case was to decide that the scheme should not apply according to its terms in that case. His decision in that regard would not be subject to challenge unless he had regard to matters falling outside the scope of the wide discretionary power conferred upon him.

(c) What the second respondent decided was that, by reason of the applicant's conduct as he found it to be, the applicant's entitlements under the scheme should be cancelled or revoked. In doing so he had regard only to factors that were relevant to the matter under consideration. In particular, it was not correct to say that, because the second respondent adopted a different test of "genuine importer" than that set out in the scheme, he was thereby taking into account an irrelevant consideration. Such a proposition could be sustained only if it could properly be said that the scheme was in the nature of an exclusive and exhaustive code which could not be departed from as a matter of law - a proposition which could only be sustained if the scheme were embodied in a legislative instrument.

(d) The discretion of the Minister or any delegate was at large since the statute does not prescribe any particular considerations that must, or must not, be taken into account. The applicant was unable to point to any statutory provision or to any necessary implication arising from any statutory provision that gave rise to any relevant obligation as to what it was necessary to take into account in making such a decision or, on the other hand, what it was improper to take into account. The applicant could only point to the "definition" contained in the scheme which, of its nature, might be revoked, amended or not applied administratively, there being no statutory obligation to apply it as an exclusive and exhaustive code.

The resolution of the question whether the decision made by the second respondent was tainted with illegality is to be approached by first identifying the parameters of the issue which the second respondent perceived as being before him for determination. On the evidence, there is no doubt that he posed for himself the question whether the applicant, in dealing in the categories of goods in respect of which it had base quota allocation, had acted otherwise than in accordance with the administrative scheme the details of which had been publicly notified and upon which importers, including the applicant, were expected and entitled to rely. That this was the approach adopted is made abundantly clear when regard is had to the letter dated 22 November 1984 by which the decision was conveyed to the applicant, the statement under section 13 of the Administrative Decisions (Judicial Review) Act 1977 and the affidavit sworn by the second respondent on 11 March 1985. By contrast, the second respondent did not approach the matter as an exercise of the power conferred by section 273 of the Act divorced from the terms of the scheme as published. It follows that, as the alternative argument presented on behalf of the respondents depends upon treating the second respondent as having adopted the latter approach, the argument lacks the necessary foundation in fact and it is unnecessary to consider what would have been the result had he done so.
From the beginning, the emphasis in the documents evidencing the scheme was upon an applicant for base quota allocation being "engaged in the business of importing goods within the categories claimed" and being a "genuine importer", an expression explained in Bureau of Customs notice 81/24 as meaning an importer who was in the business of "importing and trading in the goods to which the particular quota is applicable". In respect of applications for the quota year commencing on 1 January 1983 specific reference was made for the first time to an applicant for a quota allocation being required to undertake that the quota would be used for the purpose of entry and clearance of goods "owned by the applicant" and it was made clear in subsequent documentation that the test for determining whether an applicant was a "genuine importer" was whether the applicant was the "beneficial owner" of the goods at the time they were entered for home consumption. The test of beneficial ownership was emphasised particularly in Australian Customs notice 83/127 (6 July 1983) by which importers were informed that they might in future be required to furnish detailed statutory declarations in respect of specific clearances of goods that they were the beneficial owners thereof. Reference might also be made to the letter dated 4 July 1983 inviting the present applicant to apply for an allocation of 1984 base quota. The emphasis on beneficial ownership is also apparent in the documentation relating to 1985 base quota allocations. Specific mention of the same test was also made from time to time in relation to the arrangements for the transfer of base quota allocations (see Attachment B to Australian Customs notice 83/100 (18 May 1983) and Australian Customs notice 83/127 (6 July 1983)).
The distinction was clearly drawn in the documentation between "genuine importers" in the sense I have explained and persons who merely "make quota available" (see Bureau of Customs notice 81/24 (6 February 1981), paragraph 8), or whose business is in "renting" quota entitlement (ibid, paragraph 9), or who are engaged in "the business of speculating in quota" (Australian Customs notice 83/100 (18 May 1983), paragraph 4), or who "seek to obtain control over PIP or quota for the purpose of future transfer" (ibid, paragraph 8), or "who see quota as a commodity in which to trade" (letter dated 4 July 1983 to the present applicant). It was also made abundantly plain that controls on the transfer of quota were aimed at traders who speculated in quota and not at those who used quota in "importing and clearing goods" (see Australian Customs notice 83/100 (18 May 1983), paragraph 3; Australian Customs notice 83/127 (6 July 1983); and the letter dated 4 July 1983 to the present applicant). And, by Australian Customs notice 83/100 (18 May 1983), paragraph 6, importers were first cautioned against "entering into arrangements which purport to allow others to exercise commercial control over PIP or quota allocations which are held in their name": see also Australian Customs notice 83/127 (6 July 1983).
I agree with the submission made on behalf of the applicant that the second respondent made no finding that the applicant was not, in respect of any goods in the relevant categories entered by it for home consumption during 1983 and 1984, the genuine importer thereof in the sense in which that expression was used in the documentation evidencing the scheme. Indeed, the second respondent appears clearly to have accepted that, in respect of the transactions in relation to which he examined the entries and supporting documents, the applicant was at the date of the relevant entries the beneficial owner of the goods to which those entries related and that the goods were subsequently sold by the applicant. I have already adverted to the submission made on behalf of the respondents that the applicant was at the time of the entry of the goods subject to a contractual obligation to re-sell the specific goods, or otherwise pass the property in them, to another party or, alternatively, that the goods were, while in the applicant's hands, subject to a trust. To accept any part of that submission would, in my opinion, involve going far beyond any finding that the second respondent made. To regard him as finding that the goods were subject to a trust would be entirely inconsistent with what he said in his letter dated 22 November 1984 to the applicant and in the statement furnished under section 13 of the Administrative Decisions (Judicial Review) Act 1977.
I also agree with the submission that the second respondent made no finding that the applicant had sold base quota at a profit and thus had been engaged in speculating in it. Nor did he make a finding that the applicant had leased or rented its quota or had entered into arrangements whereby other persons had "commercial control" over the base quota allocated to it. I am unable to accept the submission by counsel for the respondents that the finding that the applicant had made its quota available to supplement or complement the importing programmes of others should be read as a finding that the applicant entered into arrangements with other importers of the elaborate kind which counsel suggested. If counsel's submission accurately reflects the views which the second respondent formed, the letter dated 22 November 1984 and the section 13 statement are singularly inapt to convey that meaning. In any event the material which was before the second respondent would not, in my view, support the findings which the submission postulated.
It is clear, I think, that the basis upon which the second respondent arrived at his decision was that the applicant's use of its quota allocation was not, in his view, consistent with a requirement which he referred to as "the genuine importer requirement" but which was not the requirement concerning beneficial ownership to which I have referred. The test the second respondent applied is epitomised in the following extract from his letter dated 22 November 1984 to the applicant -

"On the basis of the information available to me, I am satisfied that the essential character of the use by East West Trading of its quota allocations in 1983 and 1984 has been to exploit the scarcity value of the quota through arrangements whereby its quota holdings were made available to other parties to complement or supplement an import program of those other parties, and to avoid the controls maintained on transfers to ensure importers align their quota holdings with their requirements. As such, the quota use is not consistent with the genuine importer requirement."

Reference might also be made to paragraph 43 of the statement furnished under section 13 of the Administrative Decisions (Judicial Review) Act 1977 which is set out above and is to the same effect.

It follows, in my view, that, although the second respondent posed the question for his determination in terms of the scheme as published, his decision is explicable only on the basis that he relied on matters extraneous to it. The consequence is that the second respondent took into account considerations that were irrelevant to the question he had to decide. I should add, in deference to the argument presented by counsel for the respondents, that so to conclude does not, in my view, involve erecting the terms of the scheme into a statute or to treat those terms as having statutory force or as being immutable at the hands of those having authority to make changes therein.
For these reasons I have reached the conclusion that the decision of the second respondent revoking the remaining balances of the applicant's 1984 base quota allocation and withdrawing the applicant's previous import performance entitlements should be set aside. The further hearing of the application will be adjourned to a date to be fixed. If the parties are unable to agree upon the orders which should be made consequential upon the conclusion to which I have come I shall hear submissions thereon.

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East West Trading Co. Pty Ltd v Minister For Industry & Commerce & Anor [1985] FCA 348

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[1985] FCA 348

17 JULY 1985