MSAS Customs Brokerage Pty Ltd v Woodward, Lionel, Chief Executive Officer of Customs

[1998] FCA 114

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 777 of 1997

BETWEEN:

MSAS CUSTOMS BROKERAGE PTY LTD

INCITEC LTD

GEC ALSTHOM PTY LTD

WEB DYNAMICS PTY LTD

HOLDEN’S MOTOR OVERSEAS CORPORATION LTD
APPLICANTS

AND:

LIONEL WOODWARD,
CHIEF EXECUTIVE OFFICER OF CUSTOMS
FIRST RESPONDENT

RICHARD JANECZKO
SECOND RESPONDENT

MARION GRANT
THIRD RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

25 FEBRUARY 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 777 of 1997

BETWEEN:

MSAS CUSTOMS BROKERAGE PTY LTD
INCITEC LTD
GEC ALSTHOM PTY LTD
WEB DYNAMICS PTY LTD
HOLDEN’S MOTOR OVERSEAS CORPORATION LTD

APPLICANTS

AND:

LIONEL WOODWARD,
CHIEF EXECUTIVE OFFICER OF CUSTOMS

FIRST RESPONDENT

RICHARD JANECZKO

SECOND RESPONDENT

MARION GRANT

THIRD RESPONDENT

JUDGE:

WHITLAM J

DATE:

25 FEBRUARY 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The first applicant is a customs broker. It represented each of the other applicants in connexion with five separate requests for determinations to be made under s 273 of the Customs Act 1901. By a series of decisions made between 19 April and 8 July 1996 the second respondent refused to make those determinations. The first applicant then wrote to Customs on behalf of its clients seeking “review” or “reconsideration” of the relevant decisions. Extensive correspondence ensued, culminating in letters dated 8 and 9 May 1997 from the third respondent.

By a letter dated 2 June 1997 acknowledging that the third respondent had “refused to consider [the] request for review of the decisions made”, the first applicant gave notice to the third respondent that it wished to request a statement under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) in respect of each of the decisions refusing to make the determinations sought. The third respondent refused to prepare and furnish such statements on the basis that the request was not made within the time prescribed by s 13(5)(a) of the ADJR Act.

Mr Law, who appeared for the applicants, accepts that the terms of the second respondent’s decisions made in 1996 were “recorded in writing and set out in document that was furnished” to each of the applicants (as contemplated by s 13(5)(a)) at the time they were made. The consequences are explained in Ralkon Agricultural Company Pty Ltd v Aboriginal Development Commission (1982) 69 FLR 328 by Keely J (at 342):

“. . . s 13(5) imports into s.13(1) a requirement that the request for reasons must be made within twenty-eight days after the day on which the decision was furnished in writing to the applicant.  Accordingly, the “right” to request reasons, contained in s. 13(1), expires after twenty-eight days.”

However, Mr Law submits that, because the second respondent did not write to the applicants and inform them of their rights under the ADJR Act, the decisions of the second respondent were not final until such time as the third respondent “advised” the applicants that the decisions were final on 8 or 9 May 1997, as the case may be. This submission rests on a number of misconceptions. First, the second respondent was under no obligation to inform the applicants, in writing or otherwise, of “their rights” under the ADJR Act. No authority was cited for such a sweeping proposition. Secondly, the decisions of the second respondent were plainly “final” in the sense explained in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 by Mason CJ at 337. Thirdly, the third respondent did not, in fact, purport to “advise” the applicants that the third respondent’s decisions were “final”. She merely said that she was not in a position to reconsider their requests. This submission is accordingly rejected.

I do not understand Mr Law to submit that the third respondent undertook a review of the second respondent’s decisions pursuant to an obligation imposed upon her by the Customs Act. However, he does submit that she is estopped from denying that a review of those decisions was being undertaken.  This submission was developed by reference to abstract statements of principle in various authorities dealing with the doctrine of estoppel.  But Mr Law entirely failed to point to any passages in the correspondence which could be fairly construed as suggesting that the applicants should not regard the second respondent’s decisions as finally disposing of their requests.  Whatever may be the scope for the application of estoppel by representation in administrative decision-making (as to which, see Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 per Tamberlin J at 324-328), no question of its application arises in the circumstances of this case.

The present application seeks a writ of mandamus against the respondents pursuant to
s 39B(1) of the Judiciary Act 1903. The relevant duty is said to arise under s 13 of the ADJR Act, but the application itself identifies the decisions in respect of which the s 13 statements are sought as those made by the second respondent in 1996. The request of 2 June 1997 was thus made well out of time, and none of the respondents is under a duty to furnish any statement under s 13 of the ADJR Act. The application will be dismissed with costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:            25 February 1998

Mr J V Law of Law Rexstraw & Co, solicitors, appeared for the applicants.

Ms Dale Watson of the Australian Government Solicitor appeared for the respondents.

Date of hearing:	23 February 1998
Date of judgment:	25 February 1998