George Tauber Imports P/L v Comptroller General of Customs and Ors.

[1993] FCA 373

373 1 1943

JUDGMENT NO. .m-*-.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	1 No VG 314 of 1992
)
GENERAL DIVISION	1

BETWEEN:  GEORGE TAUBER IMPORTS PTY LIMITED
Applicant

- 7 JUN 1993

FEDERAL COURT OF AND: COMPTROLLER GENERAL OF CUSTOMS

AUSTRALIA

PRINCIPAL	and OTHERS
REGISTRY

Respondent

Coram :  Ryan J

Place: Melbourne

Date:  13 May 1993

EX TEMPORE REASONS FOR JUDGMENT

Rvan J:  The applicant seeks an extension of time under the

A d m i n i s t r a t i v e D e c i s i o n s ( J u d i c i a l Rev iew) A c t 19 77, ( "the ADJR

Act"), wlthin which it might apply for review of certain

decisions made under the Customs A c t 1901 (Cth). On 4 July 1988

the customs agent, Curlett Cannon and Galbell Pty Limited,

( "Curlett Cannon") on behalf of the applicant notified the first

After the lodging of the 1988 application, Curlett Cannon supplied further information, as requested, to the Customs

respondent of its intention to apply for a Commercial Tariff Concession Order, ("CTCO"), to permit it to import radio controlled toy cars into Australia free of customs duty.

Information in support of the proposed application was then

collated and the completed application was lodged on 14 October

1988.   It was assigned number\8809164 ("the 1988 application").

authorities, but, on 25 November 1988, Mr W.G. O'Brien, the Assistant Director, Tariff Concession and Quota Branch of the Customs Service, advised Curlett Cannon of the refusal of the

L988 application. That advice was by letter in the following

terms :

"I refer to your application of 19 October 1988 on behalf of George Tauber Imports Pty Llmrted for a tariff concession for infra-red remote controlled battery powered model cars. Before I can approve a concessron I, as a delegate of the Comptroller General, have to be sat~sfied that there are no goods serving similar functions made or capable of berng made in Australia, or that the grantmg of a concession would have no adverse effect on the market for any goods produced in Australia.

I have examined your application and find that I am not satisfied that the above criterla has been met and that a case for a concessron has not been proven.

The competitron statement submitted by George Tauber Imports rs inadequate as it does not address the followrng pornts:

(a) Identifrcation of the market rnto whrch the imported goods are to be sold. The statement rndicates that the research rnto the market was confined to identical goods;

(b) The ldentificatron of lrkely Australian manufacturers of goods serving srmilar funct~.ons (in partrcular of model cars, model remote controlled cars and remote control apparatus).

(C) The seeking of comments by those likely manufacturers in
respect of the granting of a concession (using form CTCZ).

The market statement also refers to the quality and price of the imported cars when compared with the "Australian cars made generally of wood". This indicates that the wrlter is aware of some Australran manufacture of cars that may compete with the lmported goods, ln contrast to the earlier statement that they believe that there 1s no local manufacture.

Prlce and quality are not factors that are used to determine whether or	not goods are eliglble for concesslonal entry. At best they may
indicate that a separate market is involved. However, wrthout evrdence to substantiate the claims, consrderation of these factors cannot be made.
The suggested Tarlff Concession wordrng is very restrict~ve as rt covers only certaln models of car governed by scale srze and frequency of the radio control apparatus. If there is no manufacture of cars serving similar functions, why should such restrictions be imposed?
Consequently, I hereby advise you, in accordance with sectron 269X(1) of the Customs Act that your\application has been refused.

\

Your attention is also drawn to the Australian Customs notice number 88/151 which sets out ln detail che administrative procedures for processing applications for Tariff Concession Orders."

Complaint is made that the applicant was not afforded an

opportunity to address any of the issues which weighed with M r O'Brien in deciding to refuse the application. It is also contended that the refusal embodied in his letter is vitiated by errors of law arising from a misinterpretation of the relevant provisions of the Customs Act. Subsequently, information favourable to the applicant's case for a CTCO was obtained from Australian toy manufacturers regarded by Mr O'Brien as relevant. Although that information was forwarded to the Customs authorities as it came to hand, Mr O'Brien, in about Zune 1989, told M r Bell of Curlett Cannon, by telephone, that:

"The 1988 application would never be granted ~rrespectlve of any argument or evidence submitted on behalf of the appiicant because, in his opinion, a CTCO for toys would never get up and therefore radio controlled cars would never be the sublect of a CTCO."

Shortly before that conversation, Mr Bell had been apprised of the judgment of this court in Corinthian Ifidustries (Syd) Pty Limited v The Comptroller General of Customs (1989) 86 ALR 387, and considered that the reasoning in that case might avail the applicant in its attempt to secure a CTCO for radio controlled toy cars. He conveyed this view to Mr Westcott, the import

manager of the applicant, and the two men, although aware of the	applicant's rights to seek a review of the 1988 appiication,
decided to pursue a fresh application. Two substantially identical applications were lodged on 7 June 1990 ("the 1990 applications").
More extensive indications from Australian manufacturers that they did not produce, and were not capable of producing, goods serving similar functions to the radio controlled toy cars, the
subject of both the i988 and the 1990 applications, were filed in support of the 1990 applications. At the time of the filing of the last of that material, Curlett Cannon requested the delegate of the first respondent to reconsider the 1988 application. However, by letter dated 10 September 1990, Mr Hand, another Assistant Director, Tariff Concessions and Quotas, referred to a letter from Curlett Cannon of 29 August 1990 seeklng further consideration of the 1988 application and continued:

"The 1988 applicatron was refused by the delegate on 25 November 1988 and reasons for the refusal were given. Your latest correspondence does not address all the issues raised in the letter of refusal in regard to assessment of competition and also in relat~on to the wordrng of the proposed tarrff concession order.

Until a new applicatron wrth suitable revrsed wording and the details regardrng competrtion are received, thrs offrce is unable to proceed further with this matter."

After some informal indication that the l990 application would be granted, Curlett Cannon, on 26 March 1991, again wrote to the Australian Customs Service, saying:

"We would llke to take this opportunity to brlng to your attentron department file number 88/09164, wh~ch was rn fact our original applicatron for the abovementioned goods. We did have reason on two

past occasions on this f ~ l e to amend the orig~nal wording, and were, as

a result of the ruies of the day, denled our orrgrnal operative date.	In order to spare the discussion on the subject of operative date, we
subsequently lodged a fresh application, that being reference
90/04702/3 to flrstly establish whether the goods were elrgible for
concession.
Havrng now satrsiied the requirement of the applrcation, we now seek to have the orrginal concession applrcation date granted."

That letter evoked the following reply dated 19 June 1991:

\

"Your request for an operative date based on your applicatron 8809164 has been examined by the Director Tariff Concessions. This application was refused by the delegate on 25 November 1988 and the reasons for the refusal were given. The director is not prepared to re-open thrs application.

However in relation to your application 9004702 of 15 June 1990 and my subsequent letter of 23 October 1990, which set an application date of 9 October 1990 I can now advLse that the d~rector has approved your original application date of 15 June 1990 whrch gives an operative date of 18 May 1990."

On 26 June 1991 Curlett Cannon requested the Assistant Director Tariff Concessions of the Australian Customs Service to give further consideration to the L988 application. That request was also refused by letter by Mr Garnier, D~rector, Tariff Concessions, dated 15 July 1991 which so far as relevant was in these terms:

"I refer to your letter of 26 June 1991 seeking reconsrderation under

sub-S. 269K(2) of the Cusrroms Act of your application lodged in 1988

for certarn remote control toy vehrcles.	This matter has been referred
to me for consideratron of your request.

An examination of the frle reveals that your 1988 applicatron was refused on 25 November 1988 because in the view of the delegate you had farled to adequately canvass local manufacturers of similar goods.

There is no evidence that you attempted to satlsfy this requirement over a period of some 13 months.

There has always been a requirement that applrcants satisfy the decrsion maker that there are no goods serving srmrlar functions produced in Austral~a or capabie of being produced in Australia in the

normal course of business.	The delegate was clearly not satisfled at
the time of his refusal.

In Zune 1990, nearly two years later, you applred for a wider range of remote control toy vehrcles for which a TCO was subsequently granted after you had satrsfied the delegate that the crrteria had been met. The wrder form of wording in TC~O 04702 covers the goods you had origrnally applred for rn 1988.

Therefore there 1s no justlfication for reconsidering your 1988
appl~cation	as the goods are covered by a tariff concession order."

That letter elicited a detailed letter of complaint dated 6 August 1991 from Curlett Cannon which prompted this reply dated 13 August 1991 from Mr Garnier:

"I refer to your letter of 6 August 1991 again seekrng reconsideration i

of your 1988 application for remote control toy cars.

In my letter of 15 July 1991 I informed you I had examined your prevlous request to reconsider the application and that its history did not justify its reconsideration.

No evidence has been presented which would cause me to change that
new.
However your letter does raise some issues which deserve comment.

First, your letter of 29 August 1990 (wh~ch	you allege was not
answered) was answered on 10 September 1990.

Second, I should pornt out that the fact that the ACS has accepted a submissron as an application under the Customs Act does not exonerate the applrcant from the responsrbrlity of satrsfyrng the delegate wrth a properly reasoned case (supported with hard evidence) that the criterra under the customs Act for granting tarrff concessrons have been met. In this regard the delegate is free to seek whatever information he/she wishee to obtarn a better understanding of the case.

In most cases t h ~ e is to the advantage of the application.

Th~rd, regarding processing tune, the system allows an appllcant 28 days to obtain clearances from local manufacturers without detriment to the date of effect. This happens via the NI provision and more recently the provision to calculate the operative date 28 days prror the date of lodgment. There 1s usually a further per~od allowed by

the delegate depending on the crrcumstances.	However, a perrod of 18
months (as applres in your case) 1s cons~dered	excessive.

Fourth in relation to your reference to ACN90/149, thrs notrce was rssued to provide for the re-openrng and back-datrng of applicat~ons only in certain circumstances where an applicatron was refused srmply on the ground of the appllcant hav~ng sought to narrow the word~ng. Thrs rs not relevant rn your case particularly as the ACN had not been issued at the trme the applrcation was refused (some two years earlier)."

Those views were again disputed by Curlett Cannon in a letter dated 19 August 1991 to which Mr Garnier tersely replied on 28 August 1991:

,, - r refer to your letter of 19 August 1991 concernlng a tariff

concessLon for radio controlled cars. As I advlsed you in my letters of 15 July and l3 August 1991, there is no ground for reconsidering your 1988 application and the matter is closed."

When Curlett Cannon reminded Mr Garnier of an understanding, that	he would review the file on the 1988 application, which he was
said to have created apparently by telephone on 13 November 1991 and by letter dated 15 November 1991, Mr Garnier responded on 18 December 1991:

"I refer to your letter of 15 November 1991 and our conversation of 13 5 '

November 1991.

As prom~sed I have again examined the file on your 1988 application for radro controlled cars but cannot find any ground to reconsider rt under sub-S. 269K(2) of the Act."

After that last communication was received the applicant consulted its present solicitors and it was resolved, at least tentatively, to seek a review in this Court of one or more of the decisions made adversely to the applicant in respect of the 1988 application. Consequently, the applicant's solicitors, on 30 December 1991, made an application pursuant to the Freedom of Information Act 1975 to obtain the files of the first respondent in relation to the 1988 and the 1990 applications. Those solicitors were subsequently advised that the files would be made available to them by the end of January 1992. The documents were inspected by the applicant's solicitors during February 1992.

However, the present application was not filed until 21 August 1992 and the delay between February 1992 and the date of filing has been explained only by the most general reference to the need for consultations between officers of the applicant and Curlett Cannon and offlcers of the Australian Customs Service, conferences with solicitors and Counsel and the drawing and settling of documents.

Ely sub-S. ll(1) of the ADJR Act it is provided that:

(1)	An application to the Court for an order of review:
(a) shall be made in such manner as rs prescrihed by Rules of Court;
(b) shall set out the grounds of the application; and
(c) shall be lodged w ~ t h a Registry of the Court and in the case
of an applicat~on in relat~on to a decision that has been Fade and the terms of whichwere recorded in writing and set out in a document that was furnished to the appl~cant, including such a decision that a person purported to make after the expiration of the period with~n which it was required to be made, shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the exp~ration of the prescribed period) allows.

The prescribed period is defined by sub-S. ll(3) of the ADJR Act in these terms:

"(3) The prescribed perrod for the purposes of paragraph l(c) is the period commencing on the day on which the decislon rs made and ending on the 28th day after:

(a) if the decisron sets out the frndlngs on materral questions of fact, refers to the ev~dence or other materral on which those frndings were based and gives the reasons for the decrsion - the day on whrch a document settrng out the terms of the decision is furnished to the applicant; or

(b) in a case to which paragraph (a) does not apply

(i) if a statement in writing settrng out those findings, referring to that evrdence or other material and giving those reasons is furnrshed to the applicant otherw~se than rn pursuance of a request under subsectron 13(1) not later than the 28th day after the day on whrch a document setting out the terms of the decrsion rs furnished to the applicant

- the day on which the statement rs so furnished;

(ii) if the applicant, rn accordance with subsection 13(1) requests the person who made the decrsion to furcish a statement as mentioned in that subsection - the day on which the statement is furnished, the applrcant is notifled in accordance with subsection 13(3) of the opinion that the applicant was not entitled to make the request, the Court makes an order under subsectron 13(4)A declarrng that the applicant was not entitled to make the request, or the applrcant is notified in accordance wrth subsection 13A(3) or 14(3) that the statement will not be furnrshed; or

(iri) in any other case, the day on which a document settrng out the terms of the decrsron is furnrshed to the

applicant :  "

In circumstances in which no tlme limit is prescribed in one or other of the ways set out in s l ( 3 ) s.ll(4) operates by stipulating that:

(4) Where: 

(a) no period rs prescribed for the making of applrcatlons for
orders of revLew in relatron to a particular decision, or

(b) no period is prescribed for the making of an application by a particular person for an order of revrew ln relation to a particular decisron;

the Court may:

(c) in a case to which paragraph (a) applres - refuse to entertain an application for an order of revrew rn relation to the decrsion referred to in that paragraph; or

(d) in a case to which paragraph (b) applies - refuse to entertain an applrcation by the person referred to in that paragraph for an order of review in relation to the decision so referred to;

if the Court rs of the opinion that the appl~catlon	was not made within
a reasonable tune after the decision was made."

Guidance to the formation of the opinion contemplated by sub-S.
(4) is provided in these terms by sub-S. (5).

(5) In forming an oprnlon for the purposes of sub-S. (4) the Court shall have regard to:

(aj the trme when the applicant became aware of the makrng of the
declsron; and

(b) in a case to whrch paragraph 4(b) applles - the period or perrods prescrrbed for the makrng by another person or other persons of an applrcatron or applicatrons for an order or orders of revrew in relation to the declsron;

and map have regard to such other matters as it considers relevant."

Each of the decisions other than the initial refusal on 25 November 1988 of a CTCO, which it is sought to review in these proceedings, has been characterised by Counsel for the applicant as a decision not to reverse that initial refusal. Accordingly, that decision, it is submitted, is a decision of the kind contemplated by s.269(K)(2) of the Customs Act. Section 269(K) of the Customs Act is in these terms:

whlch an application, other than an application deemed to have been "(1) Where the Comptroller decldes not to make a concession order for	made under subsection 2695(1! or (2) has been made (whether or not a
notice referred to in section 2694 in relatron to the application has been published), he shall, in a prescribed manner, give the applicant notlce, in writing, of the decrslon.
(2) The glvmg of a notice under subsectron (1) in respect of a
concession order does not prevent the Comptroller giving further
conslderatlon to the application or applications for that concession order or reversrng the decisron by reason of whlch the notrce was given. "

An objection to competency of the proposed application for review

has been taken on behalf of the respondents to the extent that the application seeks to review what are called "the alleged decisions" made by the fourth respondent, Mr Garnier, on 15 July, 13 August, 28 August and 18 December 1991. That objection is founded on the proposition that in order to be reviewable under s.(5) of the ADJR Act an administrative decision has to have the quality of finality, of finally determining a substantive issue, see, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 335 to 337.

That analysis was applied by Whitlam J to what were claimed to be decisions under S. 269(K) (2) of the Customs Act in Foseco Pty Limited v Naylor, unreported 23 April 1993, where his Honour observed at page iO:

"So far as the other four letters are concerned, I do not consider that they are reviewable "decrsions" for the purposes of the ADJR Act. Section 269(K)(?) of the Act imposes no obligation of "further consideratron" upon the fourth respondent: TEAC Austral~a Pty Lunited

v Kelly (Full Court of the Federal Court 10 August 1992 unreported).

The respondents never proceeded to recons~der the applzcatzon. All along, they marntained that the applrcatron had been dealt with finally
by 11 September 1990 and they were astute to make that clear in their

subsequent letters. The first and second respondents emphaszsed that they were dealing with the applrcant's "request for reconsideratron of the applicatzon". Therr declining to accede to the applzcant's request for reccnsideratron 1s not a "decrs~on" for whzch provrsion LS made by

or under the Act:  Australian Broadcasting Tribunal v Bond :1991) 70

CLR 321 per Mason CJ at 335 - 339. Nor of course can the applicant point to any other source of a duty to consrder such requests. I uphold the objectzon to the competency of this part of the

applicatzon."

I respectfully agree with those observations of his Honour. That

agreement leads me to the tentative view that a refusal, at least in the absence of identified new facts and circumstances, to reconsider an earlier decision not to make a CTCO is not reviewable under the ADJR ~ c t . However, the prospect of the I applicant's being shut out by the objection to competency from reviewing some of the alleged decisions is only one factor to be taken into account in the exercise of the Court's discretion

under paragraph ll(l)(c) of the ADJR Act.

A convenient summary of some of the principles which should guide the exercise of that discretion has been distilled from earlier

authorities by Wilcox J in Hunter Valley Developments Pty Limited

v Cohen (1984) 3 FCR 344 where his Honour observed at 348:

"1. Although the sectron does not, m terms, place any onus of proof upon an applrcant for extensron an applrcat~on has to be made. Specral circumstances need not be shown, but the Court wrll nor: grant the applicatron unless positively satisfied that it is proper to do so. The "prescrrbed perrod" of 28 days 1s not to be ignored. (Ralkon

Agricultural CO Pty Ltd v Aborig~nal Development Commlssron (1982) 43

ALR 535 at 550). Indeed, it rs the prrma fac~e rule that proceedrngs

commenced outsrde that perrod will not be entertarned. (Lucrc v Nolan

(1982) 45 ALR 411 at 416). It is a preconditron to the exercise of discretron in hrs favour that the applrcant for extensron show an "acceptable explanatron of the delay" and that it is "fair and equrtable in the circumstances" to extend time. (Duff v Frerjah 11982) 43 ALR 479 at 485; Chapman vRezlly (unreported Federal Court Neaves J, 9 December 1983) at 7).

2. Actron taken by the applicant, other than by makrng an applrcation for renew under the Act, is relevant to the consideration of the questron whether an acceptable explanatron for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curral means, has contrnued to make the decision maker aware that he contests the finality of the decision (who has not "rested on hrs rights" per Frsher J rn Doyle v Chief of Staff (1982) 42 ALR 283 at 287), and a case where the decisron maker was allowed to belreve that the matter was frnally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR 287 wrth Lucic at 414 - 415,

and H~ckey v Australian Telecommunicatrons Commission (1983) 48 ALR 517 at 519. The reasons for this distinction are not only "the need for finalrty in drsputes" (see Lucic at 410), but also the "fading from memory" problem referred to m Wedesrveiller v Cole (1983) 47 ALR 528.

3. Any prejudice to the respondent includ~ng any prejudrce in defendrng the proceed~ngs	occasroned by the delay is a material factor
militating against the grant of an extension:	See Doyle at 287, Duff
at 484 - 485, Hrckey at 525 - 527 and Wedeswe~ller	at 533 - 534.

4. However, the mere absence of preludice rs not enough to lustify the grant of an extensron: Douglas, Lucic at 416, Hrckey at 523. In thrs context public consideratrons often rntrude. (Lucic, H~ckey). A delay whrch may result if the applrcation rs successful in the unsettling of other people (Ralkon at 550, Bocerra vFowell (unreported Morling J 18 February 1983) at 12 - 13) or of establrshed practices (Douglas) is likely to prove fatal to the applrcatron.

5. The merits of the substantial applrcatron are properly to be taken into account in consrdering whether an extension of time should

be granted:  Lucic at 417, Chapman at 6.

6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of

exercise of the Court's discretion. Wedeswe~ller at 534 - 535.

In considering the authorities it is, I believe, important to bear m mind the pornt made by Sheppard J in Wedesweiller at 531 relatrng to the diversrty of decrsrons as to whlch revrew may be sought under the Act :

"there will be some cases wh~ch may be decided upon conslderatrons whrch affect only the rmmediate parties. It wrll be appropriate to consider whether the delay which has taken place, has been satisfactorrly explained, the prejudice whrch may be caused to an applicant by the refusal of an application, the prejudrce whrch may be suffered by the Government or a partrcular department if the application is granted, and generally what the just~ce of the case requrres. In other cases, wlder consrderations will be involved."

He went on to ment~on the reference to publrc Interest made by

Fitzgerald J in Luc~c 416:

It rs in relatron to the former category of cases, that is, those "whrch affect only the rmediate partles" that the approach adopted by Bray CJ in Lovatt v Le Gall (1975) 10 SASR 479 at 485, in respect of private litigatron, but adopted in thrs context in both Doyle at 287 and Duff at 485 is apposite namely:

"rf the defendant has suffered no prejudice, as when he was well within the limitation perrod of the plaintiff's clarm, or where the excess perrod of trme rs small or where he cannot show that he has lost anything by reason of the delay, it may well be that the Court will not find it difficult to come to the conclusion that is fair and equitable in the circumstances to grant extension."

By contrast, in cases involving public administration, especially dziy to day matters such as personnel management, the public interest may well dictate refusal of an extensron even after only delay.

I now turn to an application of the prrnciples I have summarised to the

facts of this case. Mr Bennett argues that the applicants have not made out a case for extensron so as to d~splace the prima facre rule that an application shall be made wrthm 28 days of the relevant decrsion. Expressed another way, there is no "acceptable explanation" of the delay."

I have taken those observations as a guide, influenced also by

47 ALR 528 at 531 in a passage which preceded that quoted by M r

the caution expressed by Sheppard J in Wedesweiller v Cole ( 1983)

Justice Wilcox in Hunter Valley Developments at 349. I have also modified the application of principle 1 of the exposition of guidelines by Wilcox J in the light of the gloss put on it by a Full Court of the Supreme Court of Victoria in Dix v Crimes 3 Compensation Tribunal (1993) 1 VR 297. In his judgment in that case Brooking J, with whom Fullagar and Tadgell JJ agreed, referred, at 301, to what his Honour calls the critical passage of the judgment of Wilcox J in Hunter Valley viz:

"It is a precondit~on to the exercise of discret~on in hls favour that the applicant for extensron show an acceptable explanatron of the delay." (1984) 3 FCR 344 at 348; (1984) 58 ALR 305 at 310).

His Honour continued:

"What is later said by his Honour at page 312 [of (1984) 58 ALR; (1984) 3 FCR at 3501 does not suggest to my mlnd that what I have called the critical passage rs not to be read literally."

and then set out the last paragraph of the judgment of Wilcox J

reproduced above. Brooking J then continued:

"Having considered the reasons for the declsion as a whole, ~nclud~ng
what 1s said, at (ALR) page 314 [3 FCR 3501, about the relat~onshrp
between the adequacy of an explanation for delay and tne nature of the

case, I am not persuaded that the passage referring to the precondition

LS not to be glven rts ordinary meaning.

Understood rn that sense, ought it to be vlewed as correct? I set out the sentence In full:''

His Honour then reproduced the last sentence of principle I quoted above and went on:

"Both of the two cases cited concern applications for an extension of t ~ m e under s.11 of the Conunonwealth Act. In each of them, as lt seems to me, the learned judge merely treated as a matter relevant to the exercise of the dlscretlon the questron whether there was a satisfactory explanatron of the failure to lodge the application in tlme, or the somewhat different question whether there was a satisfactory explanation of the actual delay. The same may be said of the remarks of Sheppard J in Wedesweiller v Cole (1983) 47 ALR 528 at 531, c~ted by Wilcox at 311. Indeed Sheppard J went on to refer to the discretron as vested in the Court in completely unrestricted terms.

and Australzan Communzcatzons Telecommunications (1991) 14 AAR 42 at	It 1s also worth notrng that what was said by O'connoi J rn Re Mulheron
50, is inconsistent w ~ t h the newthat an applrcant for an extension of
time under sub-6.29 (7) of the Administrative Appeals Tr~bunal Act 1975
(Cth) must m all cases explain his delay in applying for review.
I entertain no doubt that it is not a precondrtion to the grant of an extension of time under sub-6.31 (2) of the Administrative Appeals Trzbunal Act 1984 (Vrc) that the applicant show "acceptable explanation of the delay". The power grven by sub-S. 31 (2) is given m unrestricted terms and it is not for the court to impose an arbitrary limitation of the power not expressed in the words of the statute: FAI General Insurance Company Limited v Southern Cross Exploration NL (1987) 165 CLR 268 at 283-284 per Wilson J. Instructrve decisions for present purposes are Evans v Bartlam [l9371 AC 473, especrally at 479- 480 per Lord Atkin, at 481 per Lord Russell of Killowen, and at 488-9 per Lord Wright, and Kostakanellis v Allen [l9741 VR 596, both dealing wrth the suggestion that the drscretion to set asrde a default judgment or a judgment entered where the defendant has not appeared to show cause cannot be successfully invoked unless the applicant gives a satisfactory explanation for hrs default or non-appearance. The drstinction rs there drawn between the recognrtlon of matters relevant to the exerclse of the discretion and the elevation of some matter into a condrt~on precedent to the exrstence or exercise of the drscretion: see in part~cular the observations of Lord Russell clted at 603-604 in Kostakanellis v Allen and the reference at 605-606 in the latter case to the adoption of a formula created by erectlng what are merely relevant factors into arbitrary principles so as to allow the automatic production of a solut~on. For a very recent illustration of the refusal to impose restrictrons on an unfettered drscretlon conferred by Parliament, see the decision of the full court in Lerghton Contractors Pty Limrted v Kilpatrick Green Pty Limited (1992) 2 VR 505.
For these reasons I respectfully disagree w ~ t h the view that it is a condltlon precedent to the grant of an extensron of trmed under sectron 31 sub-S. 31 (2) of the Administrative Appeals Tribunal Act 1984 that the applrcant show "acceptable explanation of the delay". I would only add ln this regard that rf there were any such condition precedent as 1s suggested, great uncertainty would exrst as to what was an acceptable explanation, notwithstanding the development of that notion in the Hunter Valley case."

In spite of my tentative conclusion that alleged decisions made during that period are not reviewable by this Court, I have taken account of the numerous attempts by the applicant in the latter half of 1991 to have the 1988 application reconsidered I have taken those attempts into account as indicating that the applicant, albeit mistakenly, was not resting on its rights. Against that, however, is the leisurely approach, to say the least, to the institution of the present proceedings, which saw about nine months elapse after the applicant had been told with unequivocal finality that the 1988 application was no longer

amenable to internal review within the Customs Service.

It must also be remembered that there was a conscious decision by a commercial entity, apparently in a reasonably large way of business, with the benefit of advice from experienced customs brokers and solicitors, to pursue the 1990 application rather than, at that stage, seek a curial remedy. It is also relevant to the exercise of the discretion which I am called on to exercise, that the applicant seeks, by means of its substantive application, to recover an amount, which I am told is

approximately $200,000 in customs duty, that it contends it would not have been required to pay had the 1988 application been granted. I do not understand that the disposition of those moneys has wide implications for the administration of the C t i s t o m s Act. On the other hand, one cannot disregard the public interest in the attainment of certainty as soon as reasonably practicable about the disposition of moneys which, prima facie, have passed into the public revenue. Account must also be taken of the possibility that other importers of similar goods did not look to an amelioration of their position in respect of duty until the publication of the CTCO after the success of the 1990 applications.

A related consideration is that there is no evidence before the Court of the loss, if any, said to have been incurred by the applicant as a result of its payment of duty between 1988 and

1990. Evaluation of that consideration would require an

assessment of the relative extents to which the duty was borne by the applicant on the one hand, and to which it was passed on

to retailers and ultimate purchasers of ths radio controlled cars	on the other hand.
I have accepted, for the purpose of the exercise of the present discretion, that there is a serious question to be tried on the substantive application as to whether one or other of the decisions competent for review was vitiated by some error making it reviewable by this Court. However, the weight to be given by that acceptance is complicated by the fact that it is common ground that as a result of amendments brought about by the Customs Legislation (Tariff Concessions and Anti -Dumping) Amendment Act 1992, there is no longer any power in the Customs Service to make a new decision on the 1988 application if one of the operative decisions on that application were set aside by this Court. Accordingly, the applicant is forced to seek, as the only legal remedy now open to it, that the Court make a declaration of the rights of the parties based on the Court's view of what should have been the correct disposition of the 1988 application. That is a rarely exercised discretion in the absence of a consensual invitation and the necessity for it, if the applicant is to be accorded any worthwhile relief in these proceedings, has been brought about solely by what I have stigmatised as the applicant's leisurely approach to the institution and prosecution of these proceedings.
On a balance of all these considerations, I consider it appropriate to exercise the Court's discretion by refusing the application for an extension of time.
[After hearing further submissions as to costs his Honour
continued:]
The order will be that the application for extension of time is refused and that the applicant pay the respondent's costs including any reserved costs,'such costs to be taxed.

I certify that this and the preceding sixteen (16) pages are a true copy of the ex tempore reasons for judgment of his Honour Mr Justice Ryan

Solicitor for the applicant: Wisewoulds

Counsel for the applicant:  Mr Finkelstein QC
MS McMillan

Solicitor for the respondent: Australian Government Solicitor

Counsel for the respondent:	Mr R R Tracey QC
Mr DJ Lane