J.R. Exports Pty Ltd v Australian Trade Commission
[1987] FCA 114
•19 MARCH 1987
Re: J.R. EXPORTS PTY. LIMITED
And: AUSTRALIAN TRADE COMMISSION
No. G396 of 1986
Administrative Law - Statutes
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Sheppard J.
Beaumont J.
CATCHWORDS
Administrative Law - export incentives - discretion to extend time for application for export grant - decision to refuse extension - act amended to remove discretion - application for reconsideration of decision - whether old or new law to be applied in reconsideration.
Statutes - interpretation - whether an "accrued right" within s.8 Acts Interpretation Act 1901 vested in appellant - whether "contrary intention" appearing in amending legislation.
Export Market Development Grants Act 1974, ss.13(2A), 40A
Export Market Development Grants Amendment Act 1985
Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985, s.44
Acts Interpretation Act 1901, s.8
Mekol Pty. Ltd. v. Baulkham Hills Shire Council (1971) 2 NSWLR 54
Colonial Sugar Refining Co. Ltd. v. Irving (1905) AC 369
O'Connor v. The Argus and Australasian Ltd. (1957) VR 374
Director of Public Works v. Ho Po Sang (1961) AC 901
Continental Liquers Pty. Ltd. v. G.F. Heublein & Bro. Inc. (1960) 103 CLR 422
Hamilton Gell v. White (1922) 2 KB 222
Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) AC 541
Robertson v. City of Nunawading (1973) VR 819
The Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. (1942) 66 CLR 161
HEARING
SYDNEY
#DATE 19:3:1987
Counsel and Solicitors for Applicant: Mr. I.B. Ward Q.C. with J.A. Coombs instructed by Cameron Gillingham & Co.
Counsel and Solicitors for Respondent: Mr. J. Harris instructed by the Australian Government Solicitor
ORDER
The appeal be dismissed with costs.
Note: Settlement and entry or orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from the Administrative Appeals Tribunal which upheld a decision by the respondent Australian Trade Commission ("the Commission") which had had before it for reconsideration a decision by the Export Market Development Grants Board ("the Board") given under s.13(2A) of the Export Market Development Grants Act 1974 ("the Act"). The Commission affirmed the decision of the Board. The case turns on the affect of amending legislation and transitional provisions.
Part II of the Act provides for the making of export market development grants in reimbursement of expenditure in "grant years" (which correspond with financial years), and the submission of claims for such grants. On 10 September 1985 the present appellant submitted to the Board a claim for an export market development grant for the grant years 1978 and 1979. At the time of the submission, s.13(2A) of the Act provided:- "A claim relating to a grant year shall be submitted within 5 months after the end of that year, or within such further time as the Board allows." It has been assumed that the interval of six years or so was within the phrase "such further time".
On 16 October 1985, with effect on that day, existing s.13(2A) was repealed and a new s.13(2A) was substituted by the Export Market Development Grants Amendment Act 1985. It provided that:-
"A claim relating to a grant year shall be submitted-
(a) in the case of a claim relating to a grant year other than the grant year referred to in paragraph (b) - within 5 months after the end of that grant year; and
(b) in the case of a claim relating to the grant year commencing on 1 July 1984 - on or before 30 November 1985."
It is agreed that if the new s.13(2A) is applicable to the appellant's claim, the application for re-consideration, and the principal claim, could not be entertained.
On 15 October 1985 the Board resolved pursuant to s.13(2A) not to "accept the late-lodged claim" and accordingly rejected it.
Section 40A of the Act deals with reconsideration and, save for formal amendments, has remained in the same terms at all relevant times. It has been assumed that it applied to applications for further time under s.13(2A). I set out the relevant parts of the section, as it existed before the Commission was substituted for the Board:
"40.A.
...
(2) A claimant affected by a decision of the Board and dissatisfied with the decision may ... request the Board to reconsider the decision.
...
(4) Upon receipt of the request, the Board shall reconsider the decision and may either confirm the decision or vary the decision in such manner as it thinks fit.
..."
On 9 December 1985 the appellant lodged an application for reconsideration of the Board's decision of 15 October. On 6 January 1986 certain provisions of the Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985 ("the Transitional Provisions Act") came into effect. Section 44(1) of that Act transferred the functions of the Board under the Act to the respondent Commission. Section 44(3) provided specifically for the Commission to take over the role of the Board, in reaching decisions, and to deal with those applications for reconsideration not finalised by the Board. I set out relevant parts of the section:
"(1) Any act or thing done by or to, or any decision made by,
the (Board) under the Export Market Development Grants Act 1974 as in force at any time before the commencing day shall have effect, on and after that day, for the purpose of that Act as amended and in force from time to time, as if it were an act or thing done by or to, or a decision made, by the Commission.
...
(3) Without limiting, by implication, the generality of sub-section (1), where an application for reconsideration of a decision of the (Board) had been lodged with the (Board) under the Export Market Development Grants Act 1974 as in force at any time before the commencing day but the (Board) had not completed its reconsideration of the decision specified in the application before that day, that decision may be reconsidered by the Commission under that Act as amended and in force on and after that day as if it were the decision of the Commission."
The "commencing day" was 6 January 1986 (Gazette No. S551 of 20 November 1985).
On 9 January 1986 the Commission dealt with the application for reconsideration of the Board's decision of 15 October 1985. It was of the view that it was required to apply the new s.13(2A) and confirmed the decision without entering into the merits of the case. The appellant then sought review of this decision by the Tribunal, which came to a similar conclusion, affirming the decision.
Because of the view I take of the application of s.44(3) of the Transitional Provisions Act it is not necessary for me to explore the matter which has been much relied upon, namely that the appellant had "an accrued right", but in view of the argument I do so. In this connection reliance was placed upon s.8 of the Acts Interpretation Act 1901 which reads in part as follows:
"Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not-
...
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
...
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability ... as aforesaid,
and any such investigation legal proceeding or remedy may be instituted continued or enforced ... as if the repealing Act had not been passed."
This section is expressly made subject to a contrary intention and in this respect is more a rule of construction than a rule of law.
It is not possible to define an "accrued right", anymore than it is a "right" but the notion which underlies the latter, when dealing with the present type of problem, is that there is something in the nature of a cause of action which has arisen, or is claimed to have arisen, before the repeal or amendment, in circumstances which would render it manifestly unjust for the repealing or amending Act to affect the situation adversely.
What is not an "accrued right" is a right to claim an indulgence, without which there can be no claim of substance. In the present case, when the first application was made, there had not been any relevant circumstances, beyond the delay. What was sought by the appellant was an indulgence from the Board to permit its application to be considered on its merits, notwithstanding the delay. It is, I think, not unimportant to recognise that under the earlier s.13(2A) there were the two discretionary elements, namely, whether the application would be considered beyond the stated time and, if it were considered, whether a grant should be made, and for how much.
What it was sought to have "reconsidered" was in the first place the application for the indulgence respecting time. This did not acquire the nature of an "accrued right" simply because the application had already been refused. At the time of any reconsideration the legal position was as it had been before. Moreover, the "reconsideration" for which s.40A provides and provided is in fact a fresh consideration. The section allows fresh materials to be submitted and of course fresh submissions. The appellant in fact presented fresh material and submissions in the present case. For this reason alone an analogy with an appeal in judicial proceedings is inapt.
We were not referred to any case, nor have I found any which would give any support to the submission made in this connection. On the contrary, the authorities are to the opposite effect.
A distinction which is apt to the present case is explained by the Privy Council in Director of Public Works v. Ho Po Sang (1961) AC 901 at 922 as follows:
"It may be ... that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not."
In Ho Po Sang itself, ss.3A to 3E of The Landlord and Tenant Ordinance of Hong Kong provided for the issue of rebuilding certificates in respect of land, which entitled the Crown lessee to possession of the land. The sections provided for the Director of Public Works to notify the tenants of his intention to grant the certificate, and for "appeal" by petition and cross-petition to the Governor in Council, who had a discretion to direct that the certificate be granted or not granted.
What happened was that application was made for a certificate, the Director notified his intention to grant it, petitions and cross-petitions were lodged with the Governor, and ss.3A to 3E were then repealed. The Privy Council held that in the circumstances the lessee had no "accrued right" within the meaning of s.10 of the Interpretation Ordinance (which was in similar terms to s.8) to the issue of the certificate. Because the Governor had not yet exercised his discretion, "(t)he Lessee had no more than a hope of expectation that he would be given a rebuilding certificate..." (See at 922).
An example of an "investigation in respect of a right" preserved by s.8 is to be found in Continental Liqueurs Pty. Ltd. v. G.F. Heublein & Bro. Inc. (1960) 103 CLR 422. An application for removal of a Trade Mark was made under s.72 of the Trade Marks Act, by a person aggrieved for removal of a mark on the ground of non-user. Section 72 was then repealed, but Kitto J. held that the Court should still entertain the application (see at 426-7). Similar results occurred in Hamilton Gell v. White (1922) 2 KB 222 (right to compensation for ejectment) and Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) AC 541 (right to damages for personal injuries).
On the other hand, in Robertson v. City of Nunawading (1973) VR 819 at 826, it was held by the Victorian Full Court (Winneke C.J., Gowans and Starke JJ.) that "the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings after the repeal of the statute...." Ho Po Sang was followed and Continental Liqueurs distinguished.
In my view the appellant did not at the time of the repeal and re-enactment have "an accrued right" within the meaning of the section. The common law on the subject does not assist the appeal any further.
I have earlier mentioned s.44(3) of the Transitional Provisions Act. Whatever may have been the position between 16 October 1985 and 6 January 1986 in relation to a matter concluded before the latter date this sub-section seems to me plainly to deal with a situation such as arose in the present case. The sub-section seems to acknowledge, incidentally, that a pending application for reconsideration does not constitute or give rise to "an accrued right" but even if this were so there was clearly the expression of a contrary intention within the meaning of s.8 of the Acts Interpretation Act. The application for reconsideration was made to the Board on 9 December 1985, and consideration of it had not been completed by the commencing day, 6 January 1986.
As the Tribunal's decision was in the nature of a re-exercise of the Commission's discretion, it was likewise bound to apply the new s.13(2A) and did so.
The appeal should be dismissed with costs.
JUDGE2
In this matter I have had the advantage of reading the judgments to be delivered by the other members of the Court. The task is to ascertain the intention of Parliament from a consideration of the words which have been used in the relevant legislation. If it had not been for the enactment of s. 44 of the Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985 ("the Transitional Provisions Act"), the matter would have had to be resolved by reference to s. 8(c) of the Acts Interpretation Act 1901. The application of that provision to a given case often gives rise to difficulty. As was said by the Privy Council in Free Lanka Insurance Co. Limited v. Ranasinghe (1964) AC 541 at p 552, the distinction between what is and what is not "a right" for the purposes of a provision such as s. 8 must often be one "of great fineness".
So far as it is relevant, s. 44 of the Transitional Provisions Act is as follows:-
"44.(1) Any act or thing done by or to, or any decision made by, the Grants Board under the Export Market Development Grants Act 1974 as in force at any time before the commencing day shall have effect, on and after that day, for the purpose of that Act as amended and in force from time to time, as if it were an act or thing done by or to, or a decision made by, the Commission.
(2) Without limiting, by implication, the generality of sub-section (1), where a claim for a grant had been submitted to the Grants Board under the Export Market Development Grants Act 1974 as in force at any time before the commencing day but the Grants Board had not determined that claim before that day, that claim may be dealt with under that Act as amended and in force on and after that day by the Commission as if it had been duly submitted to the Commission.
(3) Without limiting, by implication, the generality of sub-section (1), where an application for reconsideration of a decision of the Grants Board had been lodged with the Grants Board under the Export Market Development Grants Act 1974 as in force at any time before that day, that decision may be reconsidered by the Commission under that Act as amended and in force on and after that day as if it were the decision of the Commission ..."
The most relevant provision for the purposes of the present case is that contained in sub-sec. 44(3). This is addressed to cases where the Board, having been asked to reconsider a matter, had not completed its reconsideration of the decision before the day upon which the new legislation came into force. The Commission's power is to reconsider the decision under the Act "as amended and in force on and after that day as if it were the decision of the Commission". The words "... in force on and after that day" operate to oblige the Commission, in relation to an application for reconsideration which was pending before the Board, to reconsider the matter before it in the light of the provisions of the Act as in force on the day of the reconsideration. The application for reconsideration was lodged with the Board on 9 December 1985. The Australian Trade Commission Act 1985 came into force on 6 January 1986. It was pursuant to that Act that the Board was replaced by the Commission. The Transitional Provisions Act also came into force on 6 January 1986. The case thus falls squarely within the provisions of sub-sec. 44(3) of that Act. That is because the application for reconsideration of the Board's decision was lodged with the Board before "the commencing day", that is, 6 January 1986, but the Board had not completed its reconsideration of the decision before that day. Its decision was made on 8 January 1986. The Commission had a duty to reconsider the Board's decision, but under the Export Market Development Grants Act 1974 as amended and in force on and after 6 January 1986. By then the power to extend time had been removed by the amendment to the Export Market Development Grants Act which had come into force on 16 October 1985. It must follow that the Commission could not, upon its "reconsideration" of the matter, extend the period of 5 months which was the period within which the application for a grant should have been made.
For those reasons I have reached the conclusion that the appeal should be dismissed with costs.
JUDGE3
The applicant has sought to claim from the Export Development Grants Board ("the Board") a grant under the Export Market Development Grants Act 1974 ("the EMDG Act") in respect of expenditure incurred by it in the financial year 1978/1979. The claim was not submitted until 10 September 1985. It appears that the applicant acted as an export consultant for a number of parties. Those parties applied to the Board in 1979 for a grant under the EMDG Act but the Board refused their applications. They sought review of the Board's decision from the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal affirmed the Board's decision. The applicant claims that it was not until July 1985 that it became aware of the possibility that it, rather than its clients, was the appropriate party to claim a grant.
As at the date upon which the applicant submitted its claim, 10 September 1985, s.13(2A) of the EMDG Act provided that a claim relating to a grant year shall be submitted within five months after the end of that year, or within such further time as the Board allows. On 15 October 1985, the Board resolved not to allow the claim to be submitted out of time. It formally notified the appellant of its decision by letter dated 30 October 1985 but it appears that the decision was not brought to the notice of the appellant until 13 November 1985.
At that date, the EMDG Act provided for review of decisions of the Board as follows: A claimant dissatisfied with a decision of the Board may, by notice in writing given to the Board within a period of 30 days after the date on which the decision first comes to the notice of the claimant, or within such further period as the Board allows, request the Board to reconsider the decision (s.40A(2)); upon receipt of the request, the Board shall reconsider the decision and may either confirm or vary it in such manner as it thinks fit (s.40A(4)); applications may be made to the Tribunal for review of decisions of the Board that have been thus confirmed or varied (s.40A(6)).
On 16 October 1985, s.13 of the EMDG Act was amended. Sub-section (2A) was omitted and a new provision was substituted to the effect that a claim relating to a grant year shall be submitted within five months after the end of that year. There was no provision for the grant of any extension of time.
By letter dated 9 December 1985, the applicant requested the Board to reconsider its decision. On 16 December 1985, by virtue of the relevant provisions of the Australian Trade Commission Act 1985 which came into effect on that date, the functions of the Board were taken over by the Australian Trade Commission ("the Commission"). Section 44 of the Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985, which came into operation on 16 December 1985, provides, so far as relevant:
"44.(1) Any act or thing done by or to, or any decision made by, the Grants Board under the Export Market Development Grants Act 1974 as in force at any time before the commencing day shall have effect, on and after that day, for the purpose of that Act as amended and in force from time to time, as if it were an act or thing done by or to, or a decision made by, the Commission.
(2) Without limiting, by implication, the generality of sub-section (1), where a claim for a grant had been submitted to the Grants Board under the Export Market Development Grants Act 1974 as in force at any time before the commencing day but the Grants Board had not determined that claim before that day, that claim may be dealt with under that Act as amended and in force on and after that day by the Commission as if it had been duly submitted to the Commission.
(3) Without limiting, by implication, the generality of sub-section (1), where an application for reconsideration of a decision of the Grants Board had been lodged with the Grants Board under the Export Market Development Grants Act 1974 as in force at any time before the commencing day but the Grants Board had not completed its reconsideration of the decision specified in the application before that day, that decision may be reconsidered by the Commission under that Act as amended and in force on and after that day as if it were the decision of the Commission...."
By letter dated 8 January 1986, the Commission informed the applicant that, having assumed responsibility for the Board's functions, it had considered the applicant's submission and had resolved to confirm the Board's decision. On 14 February 1986, the applicant applied to the Tribunal in pursuance of s.29(1) of the Administrative Appeals Tribunal Act 1975 to have the decision of the Board to refuse to accept the claim out of time reviewed by the Tribunal.
Before the Tribunal, it was contended on behalf of the Commission that the provisions of the new s.13(2A) applied to the case with the consequence that the Commission lacked any power to extend time. The Tribunal upheld this contention and accordingly affirmed the decision under review. The applicant now appeals to this Court pursuant to s.44 of the Administrative Appeals Tribunal Act on a question of law. It argues that the Tribunal should have decided that the old s.13(2A) applied here with the result that the Commission was empowered to allow the applicant's claim to be made although out of time.
By s.8(c) and (e) of the Acts Interpretation Act 1901 -
"8. Where an Act repeals in the whole or in part a former Act, then unless the contrary appears the repeal shall not -
(a) ...
(b) ...
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed;
(d) ...
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment (incurred in respect of any offence committed against any Act so repealed)),
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."
The operation of s.8(c) of the Acts Interpretation Act was considered by Kitto J. in Continental Liqueurs Proprietary Limited v. G.F. Heublein and Bro. Incorporated (1960) 103 CLR 422. An application for removal of a trade mark from the register was filed in the High Court under the Trade Marks Act 1905-1948. Before it came on to be heard, the Trade Marks Act 1955 came into operation and repealed the whole of the Trade Marks Act 1905-1948. The 1955 Act contained no provision dealing with applications for removal pending at its commencement. It was held that by filing its notice of motion the applicant had acquired a right to have the Court decide whether it ought to exercise its jurisdiction under s.72 and that right notwithstanding the repeal of the section was preserved by s.8(c) of the Acts Interpretation Act. The applicant was accordingly entitled to have its application dealt with as if the section were still in force. Kitto J. said (at p.426):
"If the application had not been pending in the Court when the new Act came into force, I should have agreed that the applicant company had not a right to relief under s.72 which it could thereafter enforce. Even though it had a locus standi to apply under the section as a 'person aggrieved', s.8 of the Acts Interpretation Act could have no application in its favour: see Abbott v. Minister for Lands (1895) AC 425 at p 431 and cf. Brandon's Patent, Ex parte Doty
(1884) 9 App Cas 589. But in my opinion the applicant, by instituting its application in the Court, that is to say by filing its notice of motion, acquired a right to have the Court decide whether it ought to exercise its jurisdiction under s.72 in that application, and that right was within the protection of s.8(c) of the Acts Interpretation Act cf. Colonial Sugar Refining Company Limited v. Irving (1905) AC 369. The principle of Abbott v. Minister for Lands is expressed in the sentence: '...the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued'...' (1895) AC at p.431. The filing of the notice of motion in the present case was an act done by an individual towards availing himself of the right to have an order made for the removal of the mark from the register: cf. In re A Debtor; Ex parte Debtor (1936) Ch 237, at p 243. There is nothing in the 1955 Act to displace the general rule of the common law which the Acts Interpretation Act reinforces, namely that, in general, when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights: Maxwell on The Interpretation of Statutes, 10th ed. (1953) p 221, Hutchinson v. Jauncey (1950) 1 KB 574 at pp.578, 579. Accordingly I am of opinion that the repeal of the former s.72 the Trade Marks Act 1955 (Cth) does not affect this application, and that the application must now be dealt with as if that section were still in force."
In my opinion, this reasoning is applicable in the present case. Here, on 15 October 1985, the applicant had a right to have the Board reconsider its decision to refuse to allow the applicant's claim to be made although out of time (EMDG Act, s.40A(2)). At that date, it had the further right, in the event of dissatisfaction with the Board's reconsideration, to seek review by the Tribunal (s.40A(6)). Such rights, in the nature of rights of appeal, have traditionally been regarded as "rights" for the purposes of s.8(c) of the Acts Interpretation Act (see Colonial Sugar Refining Company Ltd. v. Irving (1905) AC 369 at p 372; The Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Company Limited (1942) 66 CLR 161 at pp 175, 178, 185 and 194; O'Connor v. The Argus and Australasian Ltd. (1957) VR 374 at pp 377 and 381).
It is true that the rights of the applicant were inchoate or contingent in the sense that on 16 October, when the new provisions came into force, the applicant had not by then requested the Board to reconsider its decision, let alone sought review from the Tribunal. But it has been held that a provision such as s.8(c) can apply to a inchoate or contingent right provided that it is more than a mere hope or expectation of administrative action in favour of the party concerned (see Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) AC 541 at p 552; Halsbury's Laws of England, 4th ed., Vol. 44 at p 615). Although the Board and, on review, the Tribunal had a discretion to refuse to allow the applicant's claim to be lodged out of time, it is accurate to describe the right of the applicant to have that question decided by the Board and, on review, by the Tribunal as inchoate or contingent rather than a mere hope or expectation of the kind described in Ranasinghe. Of course, it is impossible to predict whether the Board (now the Commission) or the Tribunal would accede to the application to extend time. Yet this only means that the right to have that question decided was inchoate or contingent as at 15 October 1985. In principle, the applicant's position is no different from that of the applicant before Kitto J. in Continental Liqueurs Proprietary Limited v. Heublein and Bro. Incorporated, supra.
Further, in my view, the present case can be distinguished from cases such as Robertson v. City of Nunawading (1973) VR 819. Winneke C.J., Gowans and Starke JJ. there said (at p 826):
"If the conclusion is justified (as it appears to be) that the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings after the repeal of the statute, then the conclusion seems equally justified that the mere taking of such procedural steps does not create a right to the continuance of the proceedings unaffected by amendment of the statute."
The right involved here is not merely a procedural step taken in the expectation of achieving a benefit from an administrative authority - cf. Mekol Pty. Ltd. v. Baulkham Hills Shire Council (1971) 2 NSWLR 54 at p 58. The present subject matter is something different, namely, the existence of a right in the nature of a right of appeal which, as I have said, has traditionally been regarded as a "right" of a kind protected by s.8(c) (see also Pearce, Statutory Interpretation in Australia, 2nd ed. at pp1158-9; The Retrospective Effect of Changes in the Law, Prof. J.F. Burrows, (1976) NZLJ 343 at p.348).
In my opinion, nothing turns on the circumstance that the functions of the Board have been taken over by the Commission. As has been seen, s.44(1) of the Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985 provides that any decision made by the Board shall have effect as if it were a decision made by the Commission. It follows that the Board's decision on 15 October 1985 to refuse an extension of time is to be treated as if it were the decision of the Commission. By s.44(2), without limiting, by implication, the generality of s.44(1), where a claim for a grant had been submitted to the Board under the EMDG Act but the Board had not determined that claim before the commencing day, that claim may be dealt with under the EMDG Act "as amended and in force on and after that day" by the Commission. By s.44(3), a similar provision is made to deal with the situation where an application for reconsideration of a decision of the Board had been lodged with the Board but the Board had not completed its reconsideration. Plainly, both s.44(2) and (3) contemplate that the Commission will deal with any substantive application for a grant in accordance with the provisions of the EMDG Act as they stood at the commencing day. It is understandable that the provisions governing the substantive entitlement to a grant should be intended to have an ambulatory operation. We are here concerned, not with such a substantive application, but with an application to make a claim out of time, something that is merely adjectival. It is only reasonable to suppose that the generality of the language of s.44(2) and (3) was not intended to deprive the appellant of any rights in the nature of rights of appeal which otherwise would have been preserved by s.8(c) of the Acts Interpretation Act. In other words, in my view, the general words of s.44(2) and (3) should be read down so as to confine their ambulatory operation to the substantive entitlement to a grant, as distinct from something merely incidental or adjectival to a claim for a grant, such as a request that the time for making such a grant be extended.
It follows, in my view, that the appeal should be allowed, that the decision of the Tribunal should be set aside and that the matter should be remitted to the Tribunal with a direction that it hear and determine the application to review the decision to refuse to allow an extension of time.