General Merchandise and Apparel Group Pty Ltd and Chief Executive Officer of Customs and Australian Weaving Mills Pty Ltd (Party Joined)

[2007] AATA 1139

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 s 30(1A)
Customs Act 1901 ss 269D and 269E

Re General Merchandise & Apparel Group Pty Ltd and Chief Executive Officer of Customs [2007] AATA 1138

DECISION AND REASONS FOR DECISION [2007] AATA 1139

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )  V2006/1106-1112
GENERAL ADMINISTRATIVE DIVISION     )          

Re                GENERAL MERCHANDISE & APPAREL GROUP PTY LTD

Applicant

AndCHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

AndAUSTRALIAN WEAVING MILLS PTY LTD

Party Joined

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 to 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.  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.

CONSIDERATION

1. In both these proceedings and in proceedings No. V2006/759-764, General Merchandise has lodged the application for review of the CEO's decisions to revoke a number of TCOs and, in some cases, to issue narrower TCOs.  The only difference of significance between the two sets of proceedings is that Australian Weaving Mills Pty Ltd (AWM) has already been joined as a party to these proceedings whereas it has not applied to be a party to the other proceedings.  It is an Australian manufacturer of what I will generally describe as textile goods. 

1. In relation to proceedings No. V2006/759-764, I have decided that Legend should not be joined as a party and gave written reasons.[1] In those reasons, I set out the structure of the Customs Act in relation to TCOs and their revocation as well general principles relating to the determination of an application for joinder. I adopt those paragraphs of my reasons numbered [7] to [23]. For the reasons I gave in relation to Legend’s application to be joined as a party to the earlier proceedings, I have also decided that it is a person whose interests are affected by the decision under review.[2]

   [1] Decision No. [2007] AATA 1138

   [2] Decision No. [2007] AATA 1138 at [24] – [27]

1. Despite that, I do not consider that I should join Legend as a party.  In these proceedings, the interests of an importer are already represented by General Merchandise.  Legend may well import a different range of bed linen from that imported by General Merchandise but, for all that, their interests remain the same.  That is to set aside the revocation decisions and to restore the TCOs as in force before they were made.  Those TCOs are then available to any importer.

1. The issues that must be determined on the substantive application are whether, on the day that the revocation decision was sought, there 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.

1. 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 is to be expected that AWM will lead evidence directed to establishing that it manufactures goods in Australia of such a type and with such an Australian content that they come within the description of “substitutable goods”. The CEO may also lead evidence related to the activities of other Australian manufacturers. Evidence that goods of a certain type are being imported will not be relevant.

1. 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.

1. For the reasons I have given, I refuse the application by Legend Australia Holdings Pty Ltd be joined as a party to proceedings No. V2006/1106-1112.

I certify that the eight 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  9 March 2007

Date of Decision  16  March 2007
Solicitor for the Applicant for Joinder      Mr Geoffrey Cantelo

Solicitor for the Respondent  Mr George Komora

Australian Government Solicitor

Solicitor for the Party Joined  Mr Louis Gross

Gross & Becroft