General Merchandise and Apparel Group Pty Ltd and Chief Executive Officer of Customs
[2007] AATA 1138
•16 March 2007
CATCHWORDS – PRACTICE AND PROCEDURE – application to be joined as party – whether a person whose interests are affected by a decision to revoke a tariff concession order – whether discretion should be exercised to join it as a party – application refused.
Administrative Appeals Tribunal Act 1975 ss 27(2) and 30(1A)
Customs Act 1901 ss 269B, 269C, 269E, 269FA, 269F, 269K, 269M, 269P, 269R, 269SB, 269SC, 269SD, 269SE, 269SH and 269SHA
Allan v Transurban City Link Ltd (2001) 208 CLR 167; 183 ALR 380
Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71
Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) 123 ALR 140, 32 ALD 463
Edwards v Australian Securities Commission and Others (1997) 72 FCR 350; 142 ALR 455
Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611; 162 ALR 577
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74; 50 FLR 1
Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262
Re Peters and Department of Health and Aged Care (1999) 56 ALD 561
Re Queensland Investment Corporation and Minister for Transport & Regional Services and Shopping Centre Council of Australia (2004) 84 ALD
Re The Australian and Department of Families, Community Services and Indigenous Affairs and Cape York Land Council [2006] AATA 755
Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324
United States Tobacco Company v Minister for Consumer Affairs and Others Unreported, 15 September 1988, No. G158 of 1988
DECISION AND REASONS FOR DECISION [2007] AATA 1138
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2006/759-764
GENERAL ADMINISTRATIVE DIVISION )
Re GENERAL MERCHANDISE & APPAREL GROUP PTY LTD
Applicant
AndCHIEF EXECUTIVE OFFICER OF CUSTOMS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 16 March 2007
Place: Melbourne
Decision:The Tribunal:
refuses the application by Legend Australia Holdings Pty Ltd be joined as a party these proceedings.
S A FORGIE
Deputy President
REASONS FOR DECISION
Legend Australia Holdings Pty Ltd (Legend) has applied to be made a party to the application made by General Merchandise & Apparel Group Pty Ltd (General Merchandise) to review decisions made by a delegate of the Chief Executive Officer of Customs (CEO) affirming earlier decisions to revoke certain Tariff Concession Orders (TCO) and, in some instances, to make narrower TCOs in their place. Those TCOs were made under the Customs Act 1901 (Customs Act) and relate, in general terms, to bed linen. General Merchandise is an importer of bed linen as is Legend. After hearing oral submissions and receiving written submissions on 12 and 28 February 2007, I have decided that, while Legend may be a person whose interests are affected by the decision under review, I should not exercise my discretion to join it as a party to the proceeding.
BACKGROUND
I will take only one TCO as an example of the history of what has happened in relation to all of the decisions under consideration. On 31 August 2005, Sheridan Australia applied for TC 0511455 in respect of “BED LINEN, being any of the following: bed sheets, pillow cases, quilt covers, or doona or duvet covers (Tariff Classification 6302.22.00 – Of man-made fibres)”. Customs invited three Australian manufacturers to lodge objections but only one objected. That objection was later withdrawn and no further objections were received from other Australian manufacturers when the TCO was published in the Commonwealth of Australia Gazette (Gazette).
On 22 February 2006, Bruck Textiles (Bruck) requested that TC 0511455 be revoked. Bruck claimed that it produced bed covers/quilts that are directly substitutable for the imported printed quilt/doona covers. It stated that it did not produce printed bed sheets or pillow cases. Four importers of bed linen, Myer Ltd, KMart Australia, Target and Coles Supermarkets (four importers), made submissions regarding the revocation application.
On 19 April 2006, a delegate of the CEO decided to revoke TC 0511455 and to make in its place a narrower TCO. That is TC 0607144 for goods described as “BED LINEN, being EITHER of the following: (a) printed sheets; (b) printed pillow cases”. The delegate did so after being satisfied on the matters referred to in ss 269SC(1)(a) and (b) and 269SC(4)(a) and (b) of the Customs Act.
On 10 May 2006, the four importers applied for reconsideration of the decision to revoke TC 0511455 and to make the narrower TC 0607144. Later, on 23 May 2006, Pacific Brands Ltd also applied for reconsideration. The decision was affirmed.
On 24 August 2006, General Merchandise, which is associated with Myer Ltd, applied to the Tribunal for review of the reconsidered decision. Legend, which is an importer of bed linen, applied to be joined as a party on 26 October 2006. The CEO has opposed its application and it is joined in its opposition by General Merchandise.
THE ISSUES
In considering Legend’s application for joinder, it is relevant to consider the issues that are raised by both the substantive application for review of the CEO’s decision and the application itself.
Issues raised by substantive application
Issues raised by the substantive application for review will include matters raised by s 269SC of the Customs Act relating to the processing of requests for the revocation of TCOs. They include:
(1)whether, on 22 February 2006, being the day Bruck requested revocation of TC 0511455, it was a producer in Australia of goods that are substitutable goods in relation to the goods that are the subject of the TCO;[1]
(2)whether, if TC 0511455 had not been in force on 22 February 2006 but an application for it had been lodged on that day, the CEO would have made it;[2]
(3)whether the CEO would have made the narrower TC 0607144:
(a)if the TCO were not in force on 22 February 2006;[3] and
(b)if an application had been made on 22 February 2006 for that narrower TCO in respect only of goods covered by the TCO that are not produced in Australia by Bruck.[4]
Whether goods are “substitutable goods” depends upon whether they are “… goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the [TCO] application or of the TCO can be put.”[5]
[1] s 269SC(1)(a)
[2] s 269SC(1)(b)
[3] s 269SC(4)(a)
[4] s 269SC(4)(b)
[5] s 269B(1)
Issues raised by the application for joinder
Section 30(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that a “… person, whose interests are affected by the decision may apply, in writing, … to be made a party proceeding …”. It requires the resolution of two issues:
(1)whether Legend is a person whose interests are affected by the CEO’s decision on reconsideration; and
(2)if so, whether I should exercise my discretion to join Legend as a party.
CONSIDERATION
General principles relevant in determining whether interests are affected by a decision under review
In Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1)[6] (Control Investment), Davies J considered when a person’s “interests are affected” within the meaning of ss 27(2)[7] and 30(1)(c) of the AAT Act. At the time, s 30(1)(c) provided that “… the parties to a proceeding are … any other person … whose interests are affected by the decision and who applied to the Tribunal to be made a party to the proceeding and was made such a party by an order of the Tribunal.” Davies J said:
“In their context in ss 27 and 30, the words ‘interests are affected’ denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest. ... However, a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives ‘real’, ‘genuine’ and ‘direct’ to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review. As Brennan J said in McHattan’s case [Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157]: ‘However, a decision which affects interests of one person directly may affect the interests of other indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.’”[8]
This passage was approved by the Full Court in United States Tobacco Company v Minister for Consumer Affairs and Others,[9] Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others[10] (Alphapharm) and Comptroller-General of Customs v Members of the Administrative Appeals Tribunal.[11]
[6] (1980) 3 ALD 74; 50 FLR 1
[7] Section 27 provides, in part, that a person whose interests are affected by a decision may apply for review.
[8] (1980) 3 ALD 74; 50 FLR 1 at 79-80, 8-9
[9] Unreported, 15 September 1988, No. G158 of 1988
[10] (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71
[11] (1994) 123 ALR 140, 32 ALD 463
In deciding Alphapharm, Davies J set out some of the more general principles underpinning those to which he had referred in Control Investment. I summarised these in Re Queensland Investment Corporation and Minister for Transport & Regional Services and Shopping Centre Council of Australia[12]:
“‘The question of standing is … related to issues of procedural fairness’: at FCR 260; ALR 383; ALD 80
‘If a person has interests which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard’: at FCR 260; ALR 383; ALD 80
‘Many … decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way’: at FCR 260; ALR 383; ALD 80. A decision to impose a rate or a decision to impose a general charge for services is a decision that affects each ratepayer individually. It is also a decision of a ‘policy’ or ‘political’ nature and so is not subject to judicial review.
Whether or not a person has a right to be heard during the decision-making process, is a matter to be taken into account in deciding whether or not that person has a right to seek judicial review of the decision.
The Therapeutic Goods Act[[13]] is dominated by public interest concerns. It does not provide for the joinder of persons, including competitors, in the decision-making process.”[14]
[12] (2004) 84 ALD 717 Similar principles were applied in Edwards v Australian Securities Commission and Others (1997) 72 FCR 350; 142 ALR 455
[13] Therapeutic Goods Act 1989, under which the relevant decisions had been made.
[14] (2004) 84 ALD 717 at 736
In his judgment in Alphapharm, Gummow J noted that:
“… it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to … [a particular] dispute. In each case, the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.”[15]
Given the spectrum of decisions that could be made under the Therapeutic Goods Act1989, including decisions that could be made on the initiative of the Secretary rather than on an application, and that are reviewable under it, Gummow J said:
“… The denotation of the phrase ‘whose interests are affected’ … should not be assumed to be the same across this spectrum of decision making. It has a series of distinct operations and, in this sense, is of an ambulatory nature. … it cannot be correct that … the class of persons whose interests are affected by an initial decision is limited to disaffected applicants. Persons whose existing situation under the legislation is changed by operation of the initial decision, which was not sought but was imposed upon them, must be persons whose interests are affected by the initial decision.”[16]
[15] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 272, 395, 91
[16] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 273, 396, 91-92 Similar principles were adopted in Edwards v Australian Securities Commission and Others (1997) 72 FCR 350, 142 ALR 455
More recently, the High Court focused on whether a person was “affected by a reviewable decision” within the meaning of s 119 of the Development Allowance Authority Act 1992 (Authority Act). It did so in Allan v Transurban City Link Ltd[17] (Allan). The majority of the High Court said:
“ The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth. … It is necessary to answer the questions posed … in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’. …
… A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. … The starting point, as indicated by several authorities in the Full Court of the Federal Court …, is the construction of the Authority Act with regard to its subject, scope and purpose. … What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. …”[18]
[17] (2001) 208 CLR 167; 183 ALR 380 (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting)
[18] (2001) 208 CLR 167; 183 ALR 380 at 174, 384; [15]-[17]
Structure of decision-making and review provisions in the Customs Act
In view of the principles set out in the cases, it is relevant to have regard to the particular provisions set out in the Customs Act relating to TCOs and to decisions made in relation to TCOs.
TCOs are the subject of Part XVA of the Customs Act. If made, they permit goods described in them to be imported to Australia without payment of customs duty at the substantive rate that would otherwise apply. A person may apply to the CEO for a TCO in accordance with s 269F and, in doing so, is obliged to establish that there are reasonable grounds for asserting that the application meets the “core criteria”.[19] A TCO application is taken to meet the “core criteria” if, on the day it is lodged, “no substitutable goods were produced in Australia in the ordinary course of business”.[20] “Substitutable goods” are “… goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put.”[21] What is meant by “goods produced in Australia” is dealt with in s 269D and by “the ordinary course of business” in s 269E.
[19] s 269FA
[20] s 269C
[21] s 269B(1)
Section 269F does not qualify the persons who may apply for a TCO. Section 269K(1)(aa) does, however, require the CEO to publish the name of the applicant in the Gazette when he publishes other information relating to the TCO application. When the applicant does not propose to make use of the TCO to import the goods, the notice in the Gazette must identify the importer for whom the applicant is acting.[22] It must also invite persons to lodge submissions if they consider that there are reasons why the TCO should not be made.[23] The CEO may himself invite a person to make a submission if he considers that the person may have reason to oppose the making of the particular TCO.[24]
[22] s 269K(1)(ab)
[23] s 269K(1)(c)
[24] s 269M
If the CEO is satisfied that the application meets the core criteria, he must make a written order declaring that the goods that are the subject of a TCO application are goods to which a prescribed item specified in the order applies.[25] Once the CEO has made such a decision, he must inform the applicant of it and publish a notice in the Gazette informing all interested persons of the decision. The notice must give full particulars of the decision.[26]
[25] s 269P(3)
[26] s 269R
A person claiming to be a producer in Australia of substitutable goods in relation to the goods covered by the TCO in force on a particular day may request the CEO to revoke the order.[27] That person may do so if of the view that, if the TCO had not been in force on that particular day and that particular day were the day on which the TCO application had been lodged, the TCO would not have been made.[28] If the CEO were to form the same view quite independently of any such application, he can publish a notice in the Gazette to the effect that he proposes to revoke the TCO but seeking submissions concerning his proposal.[29] The CEO may also revoke a TCO of his own volition if the general tariff rate in respect of the goods that are the subject of a TCO is reduced to “Free”[30] or that the TCO has not been quoted in an import entry to secure a concessional rate of duty in the preceding two years.[31]
[27] s 269SB
[28] s 269SB(1)(b)
[29] s 269SD(1AA)
[30] s 269SD(1)
[31] s 269SD(1A)
If an application for revocation is received, the CEO must process it in accordance with s 269SC. Within 60 days, the CEO must decide two things.[32] The first is whether or not he is satisfied that, on the day the request for revocation was received, the person requesting the revocation is a producer in Australia of goods that are substitutable goods in relation to goods that are the subject of the TCO. The second is whether, if the TCO were not in force on that day but an application for a TCO had been lodged on that day, the CEO would not have made the TCO. If the CEO is satisfied of both matters, he must make an order revoking the TCO.[33] If the CEO is also satisfied that he would have made a narrower TCO he must revoke the TCO and make a narrower TCO in its place.[34] If not satisfied of the matters referred to in s 269SC(1), the CEO must refuse the request for revocation.[35]
[32] s 269SC(1)
[33] s 269SC(3)
[34] s 269SC(4)
[35] s 269SC(5)
The CEO must publish notice of the application for revocation in the Gazette[36] as well as notice of his decision.[37] If he decides to revoke a TCO on his own initiative under s 269SD, he must also publish a notice of his intention to do so[38] and then a notice of his decision.[39] In the case of a notice of intention given under s 269SD, it must invite a person who might be affected by the revocation to give a written submission to the CEO concerning the proposed revocation.[40]
[36] s 269SC(1A)
[37] ss 269SE(1) and (3)
[38] ss 269SD(1AA)(c) and (d)
[39] ss 269SE(2) and (3)
[40] s 269SD(1AA)(d)
Within 28 days of the gazettal of a decision of the type to which I have referred, s 269SH(1) provides that “… any affected person within the meaning of subsection (13) who objects to the making of the decision may apply to the CEO for its reconsideration”. Section 269SH(13) provides that an “affected person” means:
“(a) in relation to a decision on a TCO application:
(i)the applicant for the TCO; or
(ii)any person who lodged a submission before the last day for submissions in relation to the TCO application; or
(iii)any person who, in the opinion of the CEO, was not reasonably able to lodge a submission in relation to the TCO application within 50 days of the gazettal day; and
(b)in relation to a decision on a request for revocation:
(i)the person requesting the revocation; or
(ii)any other person whose interests are affected by the decision made on the request.”
Section 273GA provides that an application may be made to the Tribunal for review of decisions made by the CEO on reconsideration under s 269SH of decisions made under various provisions including ss 269SC(1) and (4).[41] The application “… may be made by any person who is an affected person in relation to that decision within the meaning of subsection 269SH(13)”.[42] The CEO must give notice of any such application in the Gazette together with sufficient details to identify the review proceedings, particulars of the decision and the name of the applicant.[43]
[41] ss 269SC(1) and (4) referred to in ss 273GA(1), (q) and (r)
[42] s 269SHA(1)
[43] s 269SHA(2)
Section 269SHA also provides for joinder of a person as a party to the proceedings:
“(3) Any person who had not applied under section 273GA for review of a reconsideration decision but whose interests are affected by the decision (whether or not that person is an affected person within the meaning of subsection 269SH(13) may apply under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 to be made a party to the proceedings within 60 days of the publication under subsection (2) or within such further period as the Tribunal allows.
(4)The Tribunal must not grant a person applying to be joined as a party to proceedings for review of a reconsideration decision an extension of the period of 60 days referred to in subsection (3) unless it is satisfied that the person was not reasonably able to apply within that period.”
Are Legend’s interests are affected by a decision under review?
The structure of the Customs Act clearly reflects an intention to ensure that notice is given as widely as possible of applications for TCOs and of applications to revoke them or the CEO’s intention to revoke them. In the case of an application for a TCO, the notices include an invitation to make submissions but there is no such requirement in s 269SC in relation to notices of applications to revoke TCOs[44]. This difference is reflected in the limitations imposed by ss 269SH (1) and (13) as to those who may apply to the CEO for reconsideration of a decision to make a TCO or on a request for revocation of a TCO. The person instigating the matter and so the applicant for a TCO or a person requesting the revocation may apply. In the case of a decision on an application for a TCO, though, the only other persons who may apply are those who made a submission regarding the TCO application or who were not reasonably able to do so within 50 days of the notification. This contrasts with the situation in relation to a request for a revocation when any other person whose interests are affected may apply.
[44] When the CEO considers revocation on his own volition, he is required to invite submissions: s 269SD(1AA)(d)
Those who may apply for review to the Tribunal are similarly limited but those limitations do not apply to those who may be joined as a party. There is, however, a temporal limitation. In most instances, that is 60 days from the date of notification of the application in the Gazette unless the Tribunal is satisfied that the person was not reasonably able to apply in that period[45]. The CEO published notice of General Merchandise’s application in Gazette No TC 06/37 on Wednesday, 20 September 2006. Legend applied to be joined as a party on 26 October 2006 and so within the time limit. It was given time to develop its submissions.
[45] S 269SHA(3)
Appearing on behalf of Legend, Mr Cantelo submitted that only the CEO is opposed to the application as Bruck was not represented at an earlier directions hearing. His submission overlooks a letter dated 11 December 2006 and received from Coles Group Limited, which is associated with General Merchandise, to the effect that Legend’s application was opposed. Knowing that the CEO has opposed the joinder application, General Merchandise has chosen not to attend the hearing for joinder. Its lack of attendance does not detract from the fact that it is opposed to the joinder.
In view of the structure of the Customs Act and its provisions relating to the making of TCOs and their revocation, it is clear that regard is had during the decision-making process to submissions made both by importers and by Australian producers of the goods under consideration. On behalf of the CEO, Mr Komora submitted that there is no doubt that Legend imports some goods under the TCOs but that there is no evidence of the extent to which it does so. Whether a large or small importer, an importer of goods that were the subject of a TCO is a person whose interests can be said to be affected by the revocation of that TCO or by its revocation and the substitution of a narrower TCO. The benefit of a TCO is available to any person who may wish to import the goods and is not limited to those who applied for it or even to those who take advantage of it on a regular basis. Therefore, I have concluded that Legend is a person whose interests are affected by the decision under review.
SHOULD LEGEND BE JOINED AS A PARTY?
The fact that Legend is a party whose interests may be affected by the decision under review does not automatically lead to the conclusion that it should be joined as a party. The critical words in s 30(1A) of the AAT Act are that the “… Tribunal may, in its discretion, … make that person a party to the proceeding.” As I have noted, that discretion is limited by s 269SHA(4) of the Customs Act when a person applies at a time later than 60 days after the publication of notice in the Gazette of the application to the Tribunal. That limitation does not apply in the circumstances of this case but that is not to say that the discretion has no boundaries at all. It is clear from the authorities that it is not the case.
In Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment,[46] Deputy President Thompson said:
“… That discretion must, of course, be exercised rationally with regard paid to all of the circumstances of the proceeding and the nature of the interest of each of the persons applying to be made a party. It is necessary to have regard to the nature of review proceedings before the Administrative Appeals Tribunal. As was pointed out in Re Control Investments [sic] Pty Ltd, the Tribunal is required by the AAT Act to provide a fair hearing and to carry out the review as expeditiously as the subject matter of the review permits … The increased cost of the proceeding to the applicant and the respondent which will result from the joinder of additional parties in the proceeding is a factor to be taken into account … I am unable to accept that the Tribunal should allow Marine World to be subjected to greater expense than is necessary for the proper review of the Minister’s decision. Further, the Tribunal must be concerned with the cost not only to Marine World but also to public funds and endeavour to contain it to what is sufficient to enable it to undertake a proper review.
(33) There is also the requirement that the matter be dealt with expeditiously. That, and the need to keep the cost within proper bounds, make it undesirable that there should be a multiplicity of different parties each separately represented and presenting a separate case. …”[47]
[46] (1986) 10 ALD 262
[47] (1986) 10 ALD 262 at 271-272, [32]-[33]. Deputy President Thompson went on to direct that parties whose interests were substantially the same should be represented by a common representative. In Re Peters and Department of Health and Aged Care (1999) 56 ALD 561 at 577, Senior Member Bayne directed that the joined parties be limited in their participation to making written submissions in relation to one issue.
The concepts of expedition and economy while ensuring that there is an opportunity to ensure that the decision is afforded proper review now find their way into the more recently enacted s 2A of the AAT Act. It provides that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”[48]
Provisions of this sort have been described as “general exhortatory provisions”[49] and are intended to be facultative and not restrictive.[50] In some instances, the five qualities that the Tribunal is exhorted to aspire to may appear difficult to achieve simultaneously. I have discussed this issue in another case and will not repeat it here.[51]
[48] Provisions of this sort are to be found in s 353 of the Migration Act 1958 (Migration Act) with reference to the Migration Review Tribunal and s 420(1) of the same Act in relation to the Refugee Review Tribunal (RRT) as well as in s 141 of the Social Security (Administration) Act 1999 in relation to the Social Security Appeals Tribunal.
[49] Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324 per Lindgren J
[50] Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611; 162 ALR 577 at 628; 588 per Gleeson CJ and McHugh J and 659; 613 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at 635; 592-594
[51] Re The Australian and Department of Families, Community Services and Indigenous Affairs and Cape York Land Council [2006] AATA 755 at [58]
Having regard to these matters, it seems to me that s 2A does not alter the principles that I must apply. It is not appropriate to expect one party to rely on the good offices of another to run the arguments that it would like to be put to and considered by the Tribunal but which may not be arguments that the party would necessarily put in support of its own case. At the same time, it is not appropriate to have a situation in which parties are joined in order to run substantially the same argument and so examine and cross-examine witnesses and make submissions on the same issues. To do so would be to prolong the hearing, and so the parties’ costs, unnecessarily. The position of a person whose interests may overlap with those of a party, but are not identical to them, is another matter again. It may be appropriate to join such a person but to use the Tribunal’s power under s 33 of the AAT Act to make directions to limit that person’s participation in the hearing to examination and cross-examination of witnesses and to submissions on issues not otherwise addressed by the other parties.
Mr Cantelo submitted, in essence, that Legend’s interests are not the same as those of General Merchandise even though both are importers of products that come under the general description of bed linen. They may, he submitted, import different products in respect of the TCOs under consideration. Therefore, review of the decisions relating to the various TCOs may result in TCOs being available for products imported by General Merchandise but not for products imported by Legend if Legend were not joined as a party and able to defend its interests.
It seems to me that this submission misunderstands the nature of the review that the Tribunal must conduct and its possible outcome. A particular importer may apply for a TCO but, once it is made, any importer may take advantage of it. That importer may import a small or large number of the goods described in the TCO. It may do so regularly or occasionally. All that matters is that the TCO is being quoted by importers for otherwise the CEO may revoke it of his own volition. That is not the case here.
This is a case in which Bruck, an Australian producer, sought revocation of the TCO and an importer, General Merchandise, seeks to overturn the decision to revoke it and replace it with a narrower TCO. The only issues that are relevant relate to whether, on 22 February 2006, being the day Bruck requested revocation of TC 0511455, it was a producer in Australia of goods that are substitutable goods in relation to the goods that are the subject of the TCO and whether the CEO would have made the TCO or made the narrower TCO. Whether or not the goods are substitutable goods turns on matters such as whether the goods are wholly or partly manufactured in Australia, whether not less than one quarter of the factory or works costs of the goods is represented by the sum of the value of Australian labour, the value of Australian materials and the factory overhead expenses incurred in Australia in respect of the goods. Those matters are some of the matters that are the subject of s 269D of the Customs Act. Others arise from s 269E. They include whether the goods have been produced in Australia within the two years before the application for a TCO was lodged and whether a producer in Australia was prepared to accept an order to supply them. These are not matters that are within the particular knowledge of Legend. The nature and number of goods imported by Legend or any other importer are irrelevant in reviewing the application.
Information that is relevant and that is generally available will be available to any importer be it General Merchandise or Legend. Some information will be within the particular knowledge of the Australian producer or producers although it will be available to the CEO by virtue of the powers given by the Customs Act. In this case, it will be the CEO who will necessarily lead much of that information because the producer who applied for revocation of the TCO has not sought to be made a party to the proceeding.
In view of these matters, I have decided to refuse Legend’s application to be joined as a party. On the material that I have, it will not be able to advance any evidence beyond what can be advance by General Merchandise. Its interests are identical to those of any importer in wanting the revocation decisions to be set aside and the full range of TCOs restored. To add it as a party would potentially lead to an increase in costs and an extension of the hearing. That increase and extension would not be offset by any significant benefit to the review process and without providing any greater protection to Legend’s interests than is the case if it were not joined.
For the reasons I have given, I refuse the application by Legend Australia Holdings Pty Ltd be joined as a party to proceedings No. V2006/759-764.
I certify that the thirty seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ...............................................................
Jayne Rathjen Associate
Date of Joinder Hearing 20 December 2006
Date of Decision 16 March 2007
Solicitor for the Applicant for Joinder Mr Geoffrey CanteloSolicitors for the Respondent Mr George Komora
Australian Government Solicitor
17
3
0