Merman Pty Ltd v Comptroller-General of Customs

[1988] FCA 326

IN THE FEDERAL COURT	1	LIMITED DISTRIBUTION
OF AUSTRALIA	1
WESTERN	AUSTRALIA	1

DISTRICT REGISTRY	1
GENERAL DIVISION	1 No. WAG 65 of 1988

B E T W E E N MERMAN PTY LTD

Applicant

and

COMPTROLLER-GENERAL OF CUSTOMS

First Respondent

and

THE HONOURABLE MINISTER FOR SCIENCE, CUSTOMS AND SMALL BUSINESS

Second Respondent

and

SWAN PORTLAND CEMENT LIMITED

Third Respondent

and

COCKBURN CEMENT LIMITED

Fourth Respondent

CORAM: LEE J.

28 June 1988

REASONS FOR JUDGMENT

objection to competency of the application.

This is a decision on motions by the first and second

respondents and the fourth respondent, heard concurrently, seeking

extension of the time within which they may file notices of

L.

Pursuant to 0.54A r.3(2) of the Federal Court Rules

("the Rules") the application	is a composite application seeking
orders under ss.5	and 6 of the Administrative Decisions (Judicial
Review) Act 1977 and	6.39B of the Judiciary Act 1903.

The applicant seeks orders relating to decisions, and/or

conduct engaged in for the purpose of making a decision, under the

Customs Tariff (Anti-Dumping) Act 1975 ("the Act") and the

Agreement on Implementation of	Art.VI of the General Agreement on
Tariffs and Trade.

In short the applicant contends that a notice issued by

the first respondent on 2 March 1988 initiating a formal inquiry

into whether dumping duties should be imposed upon cement clinker

imported from the Republic of Korea by the applicant, and,

thereafter proceeding with the inquiry, were decisions, or conduct

leading to a decision, subject to review under the Administrative

Decisions (Judicial Review) Act 1977 as involving errors of law.

In addition, the applicant seeks relief from the Court in respect

of the same conduct pursuant to 6.398 of the Judiciary Act 1903

which reposes original jurisdiction in the Federal Court with

respect to any matter in which a writ of mandamus or prohibition

or an injunction is sought against an officer of the Commonwealth.

The application was issued on 16 May 1988 and on that

day an interlocutory hearing took place and some interim

restraining orders were made. On the same day and at their request the third and fourth respondents were added as partles to the proceedings.

. 3.

On 31 May 1988 the interim orders were discharged and

the matter was set down for a directions hearing on 13 June 1988.

After directions hearings on 13 and 16 June the matter was listed

for hearing on 7 and 8 July.

On 22 June the fourth respondent filed its motion

seeking extension of time to lodge a notice of objection to

competency. On	24 June the first and second respondents	filed	a
similar motion.

The first and second respondents and the fourth

respondent should have filed and served a notice of objection	to
competency by 31 May to comply with the terms of 0.54 r.4 of	the
Rules.	However, it was not until 13 June that the first true

directions hearing was held, and the ramifications of the

application addressed, earlier hearings being concerned with the

need for interlocutory relief. On the adjourned directions

hearing the fourth respondent gave notice	of its intention to seek
leave to lodge a notice	of objection to Competency. The first and

second respondents, in truth the principal respondents, did not

intimate such an intention at that time.

The proposed objections to competency sought to be filed

by	the first and second respondents and the fourth respondent
contend that there has not been a decision under an enactment	for
the purposes of 6 . 5 of the Administrative Decisions (Judicial Review) Act 1977 and that there has been no conduct within the

meaning of 6.6 of that Act. In addition, the fourth respondent

objects that the matters complained of by the applicant are not

matters in respect of which the Court has jurisdiction pursuant to

s.39B of the Judiciary Act 1903.

Pursuant to 0.54 r.5(c) of the Rules the Court may

direct that an objection to competency be heard and determined

before the hearing of the application to which the objection

relates.	Order	54A, which deals with applications made to	the
Court under	s.39B	of the Judiciary Act 1903, provides that	the
provimions of 0.54	shall apply	to such an application with	all

necessary adaptations (0.54A r.3(2)).

It is important to bear in mind the nature and purpose

of an objection to competency before assessing the consequences of

the respondent's default	in	complying	with	the	time	limits
provided by 0.54 r.4.

The first point to note is that the function of the

notice of objection to competency is somewhat different from the

conditional appearance provided for in 0.9 r.6 of the Rules. The

failure to lodge an objection to competency will not result	in any
assumption of jurisdiction or waiver	of an irregularity whereas

the failure to file a conditional appearance and prosecute a

motion to set aside the originating process may	result in such a
consequence (0.9 r.6(2)).	Accordingly any motion to set aside the

originating process, or service thereof, must be instituted

promptly. (See	Cairns	"Australian	Civil	Procedure"	(2nd	Ed.
p.83)) -

I

5.

Such a challenge to jurisdiction will have no bearing on

the substance of the claim pleaded against the respondent	in the
originating process.

By contrast, an objection to competency will raise

issues that are pertinent to the substance of the action although

the lodgment of such an objection may result in the notice of

Objection being heard as a preliminary issue. (See 0.54 r.5(c)).

It may well be that in the absence of such a notice of

objection to competency decisions may have to	be made by the Court
on such matters	in any event.

A notice of objection to competency performs the role of

a pleading in a process of judicial review of administrative

actions which has no formal pleading.

A notice of objection is a manner of providing for a

limited pleading by a respondent and perhaps has some equivalence to a demurrer. (See 0.20 r.3.) It allows an issue of law to be

raised although it may not determine the fate of the whole

application and is an alternative to an application to stay or

dismiss a proceeding pursuant to 0.20 r.2(l)(a) (as applied by

0.54 r.6) which may be inappropriate in many cases of	application
for judicial review.

In the present case the matters raised in the proposed

notice of objection to competency amount to notice by the

respondents that they will be contesting the supporting pillars	of
the applicant's	argument being matters upon which the applicant

will bear the burden of satisfying the Court in any event.

The applicant opposed the granting of leave to file such

notices out of time and contended that it may suffer some

prejudice if the hearing of the application is not completed in

the time allotted because	of argument on the matters	raised in the
notice.

Such a consideration is material to a determination

whether the time should be extended to permit such a notice to be filed and indeed in many cases it may be the principal criterion. (See Trades Practices Commission v. Allied Mills Industries Pty. Ltd. (1980) 33 A.L.R. 127 per Sheppard J. at pp.133 and 136.)

In my view it is likely that the matters recited in the proposed notice of objection to competency would have been argued in the course of the hearing in any case and would have required

determination6 by this Court. Counsel for the respondents state

that in assessing the time required for the hearing of this

matter, due consideration was given for the time required	for
argument on these elements	of the application.

There is no suggestion that the notice will require a

separate hearing of a preliminary issue and	it is intended	that
the objection be dealt with	in the course of the hearing of	the

whole matter. (See Emanuele v. Cahill (1987) 71 A.L.R. 302.)

I, therefore, consider that an extension of time to file

such a notice will not result	in	any marked prejudice to	the
applicant.

The applicant has also argued that the respondents have failed to provide any cogent reason for their delay in filing the notice within time or in making an earlier application other than the failure of the respondents' advisers to address the need for such a notice.

In many cases the absence of such explanation may be

fatal but having regard to the function of the notice of

objection, the overall speed with which these proceedings have

been progressed and the absence of any real prejudice to the applicant I can see no reason why the time for filing the motion

should not be extended subject, of course, to the respondents

bearing the applicant's costs of their respective motions.

I certify that the preceding

seven (7) pages are a true copy of the
Reasons for Judgment of his Honour

Justice Lee.

Counsel for the Applicant:  M. Bennett

Solicitors for the Applicant: Keall Brinsden

Counsel for the First and Second Respondents: C. Bahemia

Solicitor for the First and Second Respondents: Australian

Government Solicitor

Counsel for the Third Respondent:  J. Pease

Solicitors for the Third Respondent: Birman and Ride

Counsel for the Fourth Respondent:	D. Stone
Solicitors for the Fourth Respondent: Northmore Hale Davy	and
Leake
Date of Hearing: 27 June 1988

Date of Judgment: 28 June 1988