FEDERAL COURT OF AUSTRALIA
Garrett v Australian Trade Commission [2014] FCA 575
Citation: Garrett v Australian Trade Commission [2014] FCA 575 Parties: ANDREW MORTON GARRETT and ACN 133 861 579 PTY LTD (IN LIQUIDATION) (CONTROLLER APPOINTED) v AUSTRALIAN TRADE COMMISSION (AUSTRADE) File number(s): VID 187 of 2014 Judge(s): DAVIES J Date of judgment: 5 June 2014 Catchwords: PRACTICE AND PROCEDURE – respondent objected to the competency of the applicant’s application for judicial review of two decisions made by Austrade and writ of mandamus – decisions and associated conduct are not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – writ of mandamus cannot be used to compel a certain a decision
PRACTICE AND PROCEDURE – notice to produce constituted fishing expedition and sought documents not relevant to the dispute – set aside
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) sub-ss 3(1) and (5)
Export Markets Development Grants Act 1997 (Cth) s 4, 87, 87C, 97, 98 and 99
Judiciary Act 1903 (Cth) s 39B
Federal Court of Australia Act 1976 (Cth) s 23Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [5]-[6]
CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria (2005) 244 CLR 98 at [25]
Domaine Finance Pty Ltd v Commissioner of Taxation (1985) 8 FCR 538
Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Griffith University v Tang (2005) 221 CLR 99
Hamden v Campbell (No 2) (2012) 57 AAR 189; [2012] FCA 460
Hutchins v Commissioner of Taxation (1996) 65 FCR 269
Kafataris v Deputy Commissioner of Taxation (2008) 172 FCR 242
Meredith v Federal Commissioner of Taxation (2001) 64 ALD 120; [2001] FCA 1135
R v The War Pensions Entitlement Appeal Tribunal; Ex Parte Bott (1933) 50 CLR 228
Seven Network Limited v News Limited (No 11) [2006] FCA 174
SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674
Tasmanian Conservation Trust Inc v Minister of Resources (1995) 55 FCR 516
Yazbek v Commissioner of Taxation [2013] FCA 39Date of hearing: 9 May 2014 Date of last submissions: 9 May 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the First Applicant: The first applicant appeared in person Counsel for the Second Applicant: The first applicant appeared on behalf of the second applicant Counsel for the Respondent: Mr N Abrams Solicitor for the Respondent: Moray & Agnew
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 187 of 2014
BETWEEN: ANDREW MORTON GARRETT
First ApplicantACN 133 861 579 PTY LTD (IN LIQUIDATION) (CONTROLLER APPOINTED)
Second ApplicantAND: AUSTRALIAN TRADE COMMISSION (AUSTRADE)
Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
5 JUNE 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The originating process filed 26 March 2014 be dismissed.
2.The first applicant's interlocutory…
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Details
- Case
- [2014] FCA 575
- Decision Date
CaseChat Overview and Summary
In Garrett v Australian Trade Commission, the applicant sought a review of decisions made by the Australian Trade Commission (Austrade) concerning eligibility for a grant under the Export Market Development Grants Act 1978 (EMDG Act). The applicant, Garrett, argued that he was eligible for the grant, but Austrade refused the application on the basis that Garrett had not incurred eligible expenses in the relevant grant year and that the company was under insolvency administration. Garrett sought judicial review of these decisions under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).
The primary legal issue before the court was whether the auditor’s determination that certain expenses were not claimable constituted a reviewable decision under the ADJR Act. The court held that the auditor's opinion, while formed in the course of their duties, did not represent a decision with statutory significance because the auditor had not exercised a power conferred by the EMDG Act. Instead, the opinion was merely a preparatory step towards Austrade's ultimate decision on the grant application. Furthermore, the court examined whether the company was "under insolvency administration" as defined by the EMDG Act, considering the implications of Mr Garrett's certification of solvency.
The court found that the auditor's determination was not a reviewable decision because it did not constitute an exercise of a statutory power. The opinion did not have statutory force in itself and was not a decision that could be reviewed under the ADJR Act. As for the second decision, the court determined that the company was not under insolvency administration as Mr Garrett had certified the company’s solvency, satisfying the conditions of s 87C(2) and (3) of the EMDG Act. Consequently, the company was not ineligible for the grant based on insolvency.
In summary, the court dismissed Garrett's application for judicial review, finding that the auditor's opinion on the claimable expenses was not a reviewable decision under the ADJR Act, and that the company was not under insolvency administration as per the statutory provisions.
The primary legal issue before the court was whether the auditor’s determination that certain expenses were not claimable constituted a reviewable decision under the ADJR Act. The court held that the auditor's opinion, while formed in the course of their duties, did not represent a decision with statutory significance because the auditor had not exercised a power conferred by the EMDG Act. Instead, the opinion was merely a preparatory step towards Austrade's ultimate decision on the grant application. Furthermore, the court examined whether the company was "under insolvency administration" as defined by the EMDG Act, considering the implications of Mr Garrett's certification of solvency.
The court found that the auditor's determination was not a reviewable decision because it did not constitute an exercise of a statutory power. The opinion did not have statutory force in itself and was not a decision that could be reviewed under the ADJR Act. As for the second decision, the court determined that the company was not under insolvency administration as Mr Garrett had certified the company’s solvency, satisfying the conditions of s 87C(2) and (3) of the EMDG Act. Consequently, the company was not ineligible for the grant based on insolvency.
In summary, the court dismissed Garrett's application for judicial review, finding that the auditor's opinion on the claimable expenses was not a reviewable decision under the ADJR Act, and that the company was not under insolvency administration as per the statutory provisions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Whilst it is a statutory condition for a grant that the applicant has incurred eligible expenses in the grant year (s 4(b) of the EMDG Act) the circumstance that an auditor considers that the expense in question is not claimable does not mean that there has been a “decision” which is reviewable under the ADJR Act. Critically, the conclusion reached by the auditor of itself has no statutory significance as the auditor has not, in reaching that conclusion, exercised some power conferred by the EMDG Act. Rather, the auditor’s conclusion is no more than an opinion formed in the course of his duties as an Austrade officer preparatory to, and as a step in the course of, Austrade reaching a decision on the company’s application, which decision has yet to be made by Austrade: ABC v Bond at 337 per Mason CJ (with whom Brennan and Deane JJ agreed), 377 per Toohey and Gaudon JJ; Meredith v Federal Commissioner of Taxation (2001) 64 ALD 120; [2001] FCA 1135 at [21], [22]; Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 274 per Black CJ and at 277 per Lockhart J. Accordingly, the first decision is not a reviewable decision in the Bond sense.The second decision On 22 January 2014, the company was ordered by the Court to be wound up in insolvency and Timothy Clifton was appointed as the liquidator. By and under s 87 of the EMDG Act, a grant is not payable if at the time when, or at any time after, a person becomes entitled to the grant the person is “under insolvency administration”. Section 87 is to be read in conjunction with s 87C(1) which prescribes the meaning of “under insolvency administration” for the purposes of s 87. Relevantly, a company is “under insolvency administration” if it is being wound up or if there is a receiver, receiver and manager or, relevantly, “other controller” of property of the company who has functions or powers in connection with managing the company: s 87C(1)(a)(i) and (ii). Sections 87C(2) and (3) relevantly provide that:(2) Despite subsection (1), a body corporate that, apart from this subsection, would be under insolvency administration is taken not to be under insolvency administration if there is in force a certificate given by the person administering the body corporate stating that the body corporate is able to pay all its debts as and when they become due and payable. (3) In sub-section (2): person administering a body corporate means whichever of the following has been appointed in relation to the body corporate:(a)the liquidator or provisional liquidator of the body corporate;(b)the receiver, receiver and manager, or other controller, of property of the body corporate; … On 14 March 2014, Mr Garrett advised Austrade that he is a controller of the company for the purposes of s 87C(2) and (3) and certified that the company was solvent. Mr Garrett wrote to Austrade in the following terms:Further to s 87C(2) and 87(3) of the EMDG Act I confirm that I am a controller of the assets of a body corporate Section 87(3)(b). I hereby certify that [the company] (In Liquidation)(Controller Appointed) is able to meet its debts as and when they fall due.
Ratio Decidendi
Legal Principle Established
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