Eurovox Pty Ltd v Chief Executive Officer of Customs

[2000] FCA 1906

FEDERAL COURT OF AUSTRALIA

Eurovox Pty Ltd v Chief Executive Officer of Customs [2000] FCA 1906

CUSTOMS – application for review of decision not to refund duty – extension of time – whether application caught by retrospective legislation – application for joinder application by another firm for AAT review – whether applicant “sought a review” of decision to refuse refund

WORDS AND PHRASES  - “sought a review”

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 30(1A)

Customs (Tariff Concession System Validations) Act 1999 (Cth) s 6(1)

EUROVOX PTY LTD v CHIEF EXECUTIVE OFFICER OF CUSTOMS
NO V 798 OF 2000

HEEREY J
22 DECEMBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 798 OF 2000

BETWEEN:	EUROVOX PTY LTD APPLICANT
AND:	CHIEF EXECUTIVE OFFICER OF CUSTOMS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	22 DECEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application is dismissed. 

2.        The applicant pay the respondent’s costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 798 OF 2000

BETWEEN:	EUROVOX PTY LTD APPLICANT
AND:	CHIEF EXECUTIVE OFFICER OF CUSTOMS RESPONDENT

JUDGE:	HEEREY J
DATE:	22 DECEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The Customs (Tariff Concession System Validations) Act 1999 (Cth) (“the Validation Act”) by ss 4 and 5 retrospectively validated certain decisions of Customs officers. Section 6(1) of the Validation Act provided that ss 4 and 5

   “do not apply in relation to any circumstance where a person has, before 1 June 1999, sought a review by the Administrative Appeals Tribunal of:

   (a)a decision of an officer of Customs not to pay a refund of customs duty; or

   (b)a decision of a delegate of the CEO to revoke a TCO under subsection 269SD(1AB);

   but, before 1 June 1999, the Tribunal has not made a decision on that review.”

2. This appeal from the Administrative Appeals Tribunal raises the question whether the applicant Eurovox Pty Ltd (“Eurovox”) in applying under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to be made a party to an application by Pioneer Electronics Australia Pty Ltd (“Pioneer”) for review by the Tribunal of a Customs decision had “sought a review” within the meaning of s 6(1)(a) of the Validation Act.

   Background

3. Eurovox is an importer of car components and in particular radios, cassette players and compact disc players designed for use in motor vehicles.  Until September 1996 the importation was the subject of Commercial Tariff Concession Orders (“CTCOs”) made under the Customs Act 1901 (Cth) (“the Customs Act”).

4. On 29 November 1996, with effect from 25 September 1996, a delegate of the respondent purported to revoke the CTCOs.  On 17 June 1997 an amendment to the Customs Regulations 1926 restored concessional entry.  In the meantime Eurovox had imported goods and paid duty thereon.  Eurovox sought to recover the duty paid by application for review in the Tribunal and on appeal to this Court on grounds not presently relevant.  Those proceedings were not successful.

5. In July 1997 Pioneer, another importer of similar goods, lodged 47 applications with the respondent seeking refunds of duty.

6. On 2 September 1997 Eurovox made a claim for nineteen refunds of duty.  On 2 September 1997 the respondent refused Eurovox’s claims for refunds.  A similar decision was made in relation to Pioneer’s refund claims.

7. Pioneer applied to the Tribunal for review of the decision to reject its refund claims (V97/1236).

8. On 27 November 1997 a licensed Customs broker on behalf of Eurovox lodged with the Tribunal’s Registry an application to be made a party to the Pioneer proceeding.  That document, which was in accordance with Form 5 in the Administrative Appeal Tribunal Regulations, was as follows:

   “FORM 5  Paragraph 39(1A)

   Sub-regulation 6(1)

   ADMINISTRATIVE APPEALS TRIBUNAL

   APPLICATION TO BE MADE A PARTY TO A PROCEEDING

   To the Registrar Melbourne, Victoria Registry

   The applicant hereby applies to the Administrative Appeals Tribunal under paragraph 39 (1A) of the Administrative Appeals Tribunal Act 1975 to be made a party to the proceeding between Pioneer Electronics Australia P/L and Chief Executive Officer of Customs.
   Application No: V97/1236

   1.        Name of applicant:  Eurovox Pty Ltd

   2.        Address of applicant:  1 Corporate Avenue
     Rowville  Vic  3178

   3.Applicant’s address for service of notices:    Peter Hodder &

   Associates Pty Ltd

   PO Box 7102

   St Kilda Road

   MelbourneVic  3004

   .State in what way the decision affects the interests of the applicant:

   We lodged nineteen Refunds of Duty with the Collector of Customs, Melbourne, on behalf of Eurovox Pty Ltd.
   The basis of the claimed refunds was the submission lodged by Mr J O’Halloran of Price Waterhouse to Mr R Walters of A.C.S., Canberra.  V97/02710 refers.
   The Refunds of Duty were rejected by the Australian Customs Service.
   Attached to this Application is a copy of the A.C.S. Rejection Notice (undated) and a schedule of the entry numbers, refund claim numbers, and amount claimed.

   Signature:   (sgd)

   PETER A HODDER
     as Licensed Customs Broker for
     Eurovox Pty Ltd (Ref No.4495)

   Date:   27/11/97”

9. The Tribunal did not respond to Eurovox’s joinder application.  Within the Tribunal a decision was made to postpone consideration of the Eurovox joinder application until a decision was made on Eurovox’s own application (see par 4 above).  The Tribunal internal memo includes a note that on 9 December 1997 a Tribunal officer telephoned Mr Hodder and left a message for him to call, but apparently there was no response.

10. On 2 July 1999 the Tribunal handed down its decision in the Pioneer application.  The Tribunal held that the purported revocation of CTCOs had been made without power because there had not been a valid delegation.  The Tribunal set aside the respondent’s decision to reject Pioneer’s refund claims and remitted the matter to the respondent with a direction that he refund the duty paid by Pioneer: Re Pioneer Electronics Australia Pty Ltd v CEO of Customs [1999] AATA 483.

11. On 12 October 1999 Eurovox by its agent Mr Hodder lodged an application for extension of time for making an application for review of a decision under s 29(7) of the AAT Act. Under the heading Reasons for Application it was stated

    “We originally lodged an application to be made a party to proceedings, per par 30(1A) of the AAT Act, Re Pioneer v CEO of Customs (AAT Ref V 97/1236) on 27.11.97.  The belief that this procedure would join our client with Pioneer in their case did not occur.  We now seek an extension of time to lodge an appeal as it is 2 years since the original Customs decision was given.”

12. On 3 November 1999 the Validation Act received the Royal assent and came into operation.

13. On 11 September 2000 the Tribunal constituted by Deputy President S A Forgie refused the Eurovox application for an extension of time. This is the decision the subject of the present appeal. (Since s 44 of the AAT Act itself speaks of appeals to the Federal Court I see no need for the use of inverted commas or disdainful qualifications such as “so-called”.) After a careful analysis of the legislation and the competing arguments, the Tribunal found that the Eurovox application joinder was not within s 6(1) of the Validation Act and thus an application to review the decisions must fail. Accordingly it would be pointless to extend the time.

14. It is common ground that if the Tribunal’s decision was correct in law, then it was proper to dismiss the application for an extension of time on the ground that the foreshadowed application had no prospect of success.

    Conclusion on the appeal

15. The AAT Act does not directly confer jurisdiction on the Tribunal to hear applications for review of any particular administrative decision. Rather by s 25(1)(a) it is provided that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. For present purposes the relevant enactment is the Customs Act which by s 273GA provides that applications may be made to the Tribunal for review of various specified decisions. One of these is “a decision of a collector under s 163 in relation to an application for a refund, rebate or remission of duty”: s 273GA(1)(haaa)

16. Section 29 of the AAT Act deals with the manner of applying for review. By s 29(1)(a) an application to the Tribunal for a review of a decision is to be made in writing. It need not necessarily be made in accordance with the prescribed form: s 29(1)(b), but must contain a statement of the reasons for the application: s 29(1)(c). However s 29A provides that unless a fee is waived under the regulations an application for review is not taken to be made unless the prescribed fee (if any) in respect of the application is paid. Section 30 of the AAT Act deals with parties to a proceeding before the Tribunal. By s 30(1), parties to a proceeding before the Tribunal for review of a decision are

    “(a)any person who being entitled to do so, has duly applied to the Tribunal for a review of the decision;

    (b)      the person who made the decision;

    (c)if the Attorney-General intervenes in the proceeding under s 30A – the Attorney-General; and

    (d)any other person who has been made a party to the proceeding by the Tribunal on application by the person  in accordance with subsection (1A).”

    The lastmentioned subsection is as follows:

    “(1A)   Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.”

17. In my view the Tribunal’s construction of the Validation Act was correct.

18. It is not to the point that the Validation Act might have used language such as “Where a person has, before 1 June 1999, made an application to the Tribunal for the review of a decision …”. The same concept is clearly conveyed by the words the drafters chose. (An instance of the verb “to seek” being used in the sense found by the Tribunal is to be found in s 45(1)(c)).

19. I do not agree with the argument of senior counsel for Eurovox that in using the expression “sought a review” in s 6(1) Parliament was intending to indicate some wider or more informal meaning in contrast with s 6(2) which refers to pending applications for refund of duty having been “lodged” with a Customs officer before 1 June 1999.

20. I accept that retrospective legislation, being an interference with existing rights, should be construed strictly and that conversely any exception to the terms of retrospective legislation should be construed liberally. But the language of the Validation Act is quite plain. Senior counsel for Eurovax accepted that at the very least there must have been some kind of contact with the Tribunal. The person in question must, before 1 June 1999, have sought to do whatever was necessary to set in train a review by the Tribunal of a decision of the specified kind.

21. But the Eurovox application for joinder did not seek a review of the decision of Customs officer not to pay a refund of duty to Eurovox. In the application form of 27 November 1997 “the decision” referred at the commencement of par 4 is plainly the Pioneer decision. The concluding words of s 6(1) require that the review “sought” by the person must have been capable of being the subject of a Tribunal decision. Unless an application for review (within the meaning of s 29 of the AAT Act) had been made, the Tribunal would have had no jurisdiction to “make a decision on that review” of the Eurovox decision.

22. Moreover, in dealing with s 6(1), the Explanatory Memorandum to the Validations Act refers expressly to “applications for review”, and makes it clear that the benefit of s 6(1) was intended to be enjoyed (only) by “those who had exercised their rights to administrative review in relation to these decisions”.

23. The application will be dismissed.  There will be an order that the applicant pay the respondent’s costs, including reserved costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             22 December 2000

Counsel for the Applicant:	P Hanks QC
Solicitor for the Applicant:	Blake Dawson Waldron
Counsel for the Respondent:	C M Maxwell QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 December 2000
Date of Judgment:	22 December 2000