McGurk Construction & Rigging Company Ltd v Comptroller-General - [1987] FCA 245

Re: McGURK CONSTRUCTION AND RIGGING CO. LIMITED
And: COMPTROLLER-GENERAL OF CUSTOMS
Nos. WAG85 and G132 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrarive Law - Judicial review - Application for licence to import goods into Australia refused - Meaning of "importation" - Whether goods imported prior to application for licence being made - Whether regulations authorise the grant of a licence to import goods after the goods imported into Australia.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Customs Act 1901 (Cth), s.50, 51, 229(1)(b)

Customs (Import Licensing) Regulations, ss. 7, 8, 11, 17

HEARING

PERTH

#DATE 19:5:1987

Counsel for the applicant : Mr A.J. Templeman

Solicitor for the applicant : Warren McDonald French & Harrison

Counsel for the respondent : Ms C. Francas

Solicitor for the respondent : Australian Government Solicitor

JUDGE1

McGurk Construction and Rigging Co. Limited ("the applicant") has applied to the Court under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for orders of review in respect of decisions made on 11 July 1986 and 28 November 1986 respectively by Mr Kho Carl Ling, an officer of the Australian Customs Service and relevantly a delegate of the Comptroller-General of Customs ("the respondent"). Each of those decisions was made under reg.11 of the Customs (Import Licensing) Regulations ("the regulations") made under the Customs Act 1901 (Cth) ("the Act") and refused to grant to the applicant a licence to import into Australia a second hand Manitowoc 4100W crawler mounted crane. At the hearing the applicant was primarily concerned to challenge the decision made on 28 November 1986 though the challenge to the earlier decision was not abandoned.

Sub-section 50(1) of the Act provides that the Governor-General may, be regulation, prohibit the importation of goods into Australia. That power may be exercised (sub-s.50(2)) -

(a) by prohibiting the importation of goods absolutely;

(b) by prohibiting the importation of goods from a specified place; or

(c) by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

The regulations may provide that the importation of the goods is prohibited unless a licence, permission, consent or approval to import the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations (sub-s.50(3)(a)).

Goods the importation of which is prohibited under s.50 are prohibited imports (sub-s.51(1)). All prohibited imports are forfeited to the Crown (s.229(1)(b)).
Regulation 7 of the regulations provides -

"7. The importation of any goods (not being goods which are excepted from the application of these Regulations) is prohibited unless -

(a) a licence under these Regulations to import the goods is in force; and

(b) the conditions and restrictions (if any) to which the licence is subject are complied with."

By sub-reg.17(1) the Minister may exempt from the application of the regulations any goods or any goods included in a class of goods. By Customs (Import…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: McGurk Construction & Rigging Company Ltd v Comptroller-General [1987] FCA 245
Case: [1987] FCA 245
Decision Date: 19 MAY 1987

CaseChat Overview and Summary

McGurk Construction & Rigging Company Ltd sought judicial review of the Comptroller-General's refusal to grant it a licence to import goods into Australia. The central issue was whether the goods in question had already been imported prior to the application for a licence being made, and if so, whether the regulations allowed for the grant of a licence to import goods after they had already entered Australia. The case was heard by the Federal Court of Australia.

The primary legal issue was the interpretation of the term "importation" in the relevant regulations and whether the Comptroller-General had correctly determined that the goods had already been imported before the licence application was made. Additionally, the court had to consider whether the regulations permitted the issuance of a licence for goods that had already been imported into Australia. The applicant argued that the goods had not yet been imported at the time the licence application was made, and therefore, the Comptroller-General's refusal was erroneous.

The court examined the language of the relevant regulations and found that the term "importation" was broad enough to include the situation where goods had already entered Australia but were subject to certain conditions or restrictions. The court held that the Comptroller-General was correct in finding that the goods had already been imported, and therefore, the application for a licence was made after the importation had occurred. Furthermore, the court found that the regulations did not permit the grant of a licence for goods that had already been imported into Australia, and thus, the Comptroller-General's decision was lawful.

The Federal Court of Australia dismissed the application for judicial review, confirming the Comptroller-General's decision to refuse the licence application. The court held that the goods had been imported prior to the licence application being made, and the regulations did not allow for the issuance of a licence in such circumstances. The decision underscored the importance of strict compliance with regulatory requirements for the importation of goods into Australia.

Orders