NHP Electrical Engineering Products Pty Ltd v Comptroller-General of Customs

[1991] FCA 583

523 7 qpti

JUDGMENT No. ... ........ ...... ........ ........

&IHITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY

1     No. ACT G 43 of 1991

DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN:  p ELECTRICAL ENGINEERING

PRODUCTS PTY LIMITED

Applicant

AND: COMPTROLLER-GENERAL OF CUSTOMS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER :  Neaves J .

DATE OF ORDER	.	24 September 1991
WHERE MADE	Canberra

THE COURT ORDERS THAT:

1.    The application for an order of review filed on 2 August 1991 be dismissed.

36 of the Federal Court Rules.

2.   The applicant pay the respondent's costs of the application.

Note:  Settlement and entry of orders is dealt with in Order

The application is strongly opposed by the

respondent.

In support of the application, the applicant relies on an affidavit sworn on 18 July 1991 by Maxwell Wilson who describes himself as the Victorian Manager of the applicant.

. -

The history of the matter begins some four years ago
when, on 26 August 1987, the applicant lodged an application

for a concession order. In his affidavit, Mr Wilson states

.

that that application was refused some time prior to 22 August 1988. Certainly, no concession order had been made before that date. However, in a letter, dated 14 March 1991 addressed to the applicant, an officer of the Australian Customs Service explained what had occurred in the following terms:

"... the situation is that you applied for the concession

on 26 August 1987 and two companies objected to it. At the time Customs was not satisfied that a TCO should be made. The delegate offered you the opportunity to further your case in January 1988 but you were unable to	do so as Email maintained its objection. The application	should have been refused at this point but was left
undetermined."

According to M r Wilsonls affidavit (par.3), on 22 August 1988 the applicant wrote to the Treasurer of the Commonwealth "seeking a reconsideration of the Comptroller- General's decision", by which the applicant appears to have meant the decision it believed had been made to refuse the application. In a letter in reply dated 1 November 1988

addressed to--	the applicant by the then Minister for Science,
IN THE FEDERAL COURT OF AUSTRALIA	) 1'
AUSTRALIAN CAPITAL TERRITORY	i
1 No. ACT G 43 of 1991
DISTRICT REGISTRY GENERAL DIVISION

BETWEEN: NHP ELECTRICAL ENGINEERING

PRODUCTS P m LIMITED

Applicant

AND: COMPTROLLER-GENE= OF CUSTOMS . -

Respondent

CORAM: Neaves J.

DATE: 24 September 1991

REASONS FOR JUDGMeNT

This is an application by NHP Electrical Engineering Products Pty Limited ( "the applicant") for an order pursuant to s.ll(l)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an extension of the time within which to lodge an application under that Act. That application would seek an order of

Customs ("the respondent") dated 24 May. 1990 whereby the application as a decision of the Comptroller-General of review in respect of a decision which is described in the respondent refused the applicant's application dated 26 August 1987 pursuant to s.269G of the Customs Act 1901 (Cth) for a Commercial Tariff Concession Order in respect of certain goods specified in the application as "contactors, A/C, triple pole, airbreak".

ones which we import. If we could the Minister suggested
we contact your Mr Pat Maher.

Some time has elapsed since this correspondence was received and no contact with your Department has been made during this time to advise you of our efforts in this regard.

The original application was lodged by our customs agent, Allfreight Customs Services, but earlier this year we employed an independent consultant with expertise in the tariff area to advise us. He mentioned the time which had elapsed and advised us that we should contact you to offer our explanations as to why there has not beeR an exchange of correspondence to have the effect of keeping the file open. We can explain this as follows:

1.   Having received your correspondence it was decided by our Board of Directors to await a Court decision on Flat Motors to establish if any judgement came forward which may have assisted our case. This did not eventuate.

2.    We examined ways in which we could break down the resistance being put up by Email Limited, but to no avail.

3.   Our Board decided to await certain legislative changes to the Customs Act as they affect tariff concessions to establish if the criteria may have changed to our advantage in the light of criticism of the Department's administration of the system. We had no success in that area.

4.    Our consultant believes he perceives a weakness in the case of Email Limited and has been working steadily towards proving our point and he expects to

wrap up his arguments within the next month.

5.    The Honorable Barry Jones has invited us to contact your Department should we be able to demonstrate that the decision to refuse, based on Email's ability to supply contactors serving similar functions, was incorrect. He did not stipulate any time constraints and as we have been working progressively towards a conclusion we hope you will accept the continuity of our application.

We look forward to hearing from you and will be happy to provide file notes to demonstrate our position."

A reply on behalf of the respondent, which was dated

24 May 1990, read as follows:
Customs and Small Business, the Minister referred to the
information he had been given by the Australian Customs

Service ("ACS") that the application "would cover goods identical to those produced in Australia by Email Westinghouse

Pty Ltd" and stated that the applicant's correspondence did not appear to dispute that fact. The letter continued:

. -

"An applicant has to establish that the requirements of

the Customs Act are met before consideration can be given to the granting of a TCO. I understand you were advised by the ACS on 21 January 1988 that you should re-approach Email Westinghouse Pty Ltd, at Rosebery, NSW, giving reasons for your disagreement with its claims of local manufacture and seeking its comments in writing. However, no further correspondence has been received by the ACS .

If you do have evidence to substantiate your claims that Email Westinghouse does not produce electrical contactors serving similar functions to those described in your application I suggest that you contact Mr Pat Maher, the delegate responsible for concessions on such goods, on telephone number (062) 75 6386."

It can only be assumed that the applicant had no

such evidence as there was no further communication between

the applicant and the respondent until 16 May 1990. On that

date the applicant sent to the respondent a letter signed by

Mr Wilson in the following terms:

"We refer to File No. C87/34452 wherein a request was made by our Company for a tariff concession on certain electrical contactors. Your Department refused our request and we wrote to the Minister expressing our disappointment and pointing out reasons why we believed he should exercise his Ministerial Authority. He replied to us on the 1st November, 1988, confirming the actions of your Department but 'left the door open*, so to speak, should we be able to obtain evidence that the only Australian manufacturer, Email Limited, does not produce electrical contactors serving similar functions to the

under the mistaken impression that no reply had been received to the applicant's letter dated 16 May 1990. In fact, no further communication was sent by the applicant to the respondent u.nti.1 the applicant wrote to the respondent a letter, signed by Mr Wilson, dated 15 January 1991.

Paragraph 8 of Mr Wilson's affidavit sets out in seven lettered paragraphs what he refers to as steps taken by the applicant between May 1990 and January 1991 in pursuit of the application for a tariff concession order. The material lacks detail and is objectionable in form but I did not accede to a submission by counsel for the respondent that it be rejected. It is, however, so. vague as to provide little assistance to the applicant's case. It refers, for example, to discussions taking place "with industry and Email in an attempt to resolve certain contentious issues that had resulted in an impasse" and to the obtaining of what is referred to as "an expert report on Email's claimsw without descending into any detail. C -

The letter dated 15 January 1991 to the respondent

read as follows:

"I refer to File C87/34452. relating to a request for a

Tariff Concession on certain Electrical Contactors as imported by our Company. As you are aware Email Westinghouse has objected to this request despite the fact that it imports contactors in its own right.

To refresh your memory AC Contactors 270 amp and above are entered duty free under a Tariff Concession.

"1 refer to your letter of 16 May 1990 concerning an

application lodged on 26 August 1987 for a tariff

concession on 'Contactors, ac, triple pole, airbreak'.

That application is refused because evidence to

substantiate your claims has not been produced.

If you again wish to pursue a tariff concession a new

application must be lodged."

This letter is said to record the decision which the applicant	C -
wishes to have set aside under the Judicial Review Act.

The applicant did not institute the present proceeding under the Judicial Review Act until 2 August 1991 so that, accepting that the relevant decision was made on 24 May 1990, the extension of time sought is of the order of 13 months.

What, then, is the history of the matter since 24

May 19901

The applicant made no response to the letter of that date. It is not suggested that the letter was not received by the applicant at about the time it was sent. What is said is that, by reason of an oversight within the applicant's organisation, the letter did not come to the attention of Mr Wilson "as the officer responsible for the application". No explanation is offered as to how this occurred or why other officers to whose attention the letter came took no action in relation to it. In particular, there is no explanation offered why Mr Wilson had not followed up the matter if he was

"where we are able to give you [the respondent] a clear cut

case".

By letter dated 14 March 1991 to which some

reference has already been made, the applicant was informed as

follows :

"Your application was refused on 24 May 1990 because, after nearly 3 years since application, you had not provided evidence that goods serving similar functions are not produced in Australia. You were invited to reapply if you wished to continue with this matter. This you have not done.

Regardless of what discussions you may have had on this matter over the last 2 years or so the fact remains that you have not provided the necessary evidence despite being given a number of opportunities to do so.

This application is now at an end. If you wish to lodge a new application I will accept all material so far submitted as part of that application. Of course you will still need to obtain a clearance from Email and any other local manufacturers who operate in the market."

Subsequently, a discussion took place between the

agent for the applicant and an officer of the Australian

Customs Service resulting in a letter dated 20 June 1991 being	sent to the agent confirming that the application dated 26
August 1987 would not be re-opened and again suggesting 'that a fresh application be made if the applicant considered it had sufficient material to support it.

he applicant has foreshadowed that the grounds upon

which it would seek to have the decision made on 24 May 1990

set aside in the event that an appropriate extension of time We concede that Email does manufacture some contactors with ratings from 63 amp to 200 amp and our efforts now are to seek Customs Duty exemption for Contactors 45 amps and below on the grounds that there is no cross elasticity of demand between the various units. --

Unfortunately Email Westinghouse disagrees and has refused to yield. They are inferring that their locally produced 63 amp contactor selling on the Australian market for $278.10 competes with its own imported 20 amp contactor which sells in the Australian market for $31.36 duty paid. A 63 amp contactor could theoretically be used in a 45 amp or even a 20 amp situation but not vice versa. There appears to be an even more justifialSle'case

for us than the dump truck/utility analogy used by the
old Industries Assistance Commission.

At the present time our Company is gathering evidence to indicate there is no cross elasticity of demand between the contactors manufactured by Email Westinghouse and imported 45 amp units and below.

We will contact you further in this regard with supporting data."

A reply dated 23 January 1991 read -

"I refer to your letter of 15 January 1991 concerning an

application lodged on 26 August 1987 for a Tariff Concession on 'Contactors, AC, triple pole, airbreak'. I

also refer you to our letter of 24 May 1990.	(copy
enclosed)
Further consideration for a Tariff Concession will be	given only on receipt of a new application lodged in the
prescribed manner."

On 14 February 1991, the applicant addressed a further letter to the respondent. It is unnecessary to set out its terms in full. Suffice it to say that it clearly indicated that any concession order which the applicant might thereafter seek would relate to a more limited class of goods than those specified in its application dated 26 August 1987 and that its investigations had not proceeded to a stage it had in all but form unless further material in support of it was furnished to the respondent. Apart from writing to the Treasurer of the Commonwealth in August 1988, the applicant took no steps to have the decision which it believed had been made reversed or set aside. Indeed, it did not raise the matter again with the respondent until 16 May 1990 and it is

clear from its letter of that date that, whatever efforts it . -

may have made to obtain material that would be relevant upon any renewal of the application of 26 August 1987, as to which no details are given, it was not in a position, even in May 1990, to put a case to the respondent in an endeavour to overcome the obstacles which earlier had been identified in relation to the application.

The history of the matter after 24 May 1990 fails to show that the applicant was pursuing the matter with any enthusiasm. There were long periods in which, so far as the evidence shows, little if any effective action was taken by the applicant. Certainly there was no further communication

with the respondent until 15 January 1991. Even a re-	iteration of his position by the respondent in the letter
dated. 23 January 1991 did not spur the applicant into action.
It prompted only a further letter - dated 14 February 1991 -
reciting again the ineffective steps that had been taken by the applicant since 1 November 1988 to gather relevant material.
within which to bring the proceedings were to be granted would
be -

(a)	that a breach of the rules of natural justice occurred in connection with the making of the decision; and
(b)	that the exercise of the power was so unreasonable that no reasonable person could have so exercised
the power. -

No particulars have been furnished as to the second of the grounds sought to be relied upon. As to the first ground, the following particulars have been given:

"(i) The Respondent failed to give to the Applicant any or any adequate notice that the decision was to be made at the time when it was made.

(ii) The Respondent gave the Applicant no adequate opportunity to submit further material in support of its application for a tariff concession order.

(iii)The Applicant, had, by letter dated 16 May 1990,

informed the Respondent of the reasons for the applicant's delay prior to that date in pursuing its application and requesting that the application for

a tariff concession order not be finally determined for the time being.

(iv) The Respondent made the decision contrary to the Respondent's own policy concerning the provision of further material by applicants."

Although the application relates to a decision made on 24 May 1990, the prior history of the matter to which reference has already been made assumes some significance. It is clear from the material before the Court that, as from some

date prior to 22 August 1988, the applicant believed that the application dated 26 August 1987 had been refused as, indeed, fresh application to the respondent for a concession order if it is now in possession of sufficient material to warrant its doing so, albeit with the qualification that a concession order made on such an application would operate from a later date than that from which an order made upon the application dated 26 August 1987 would have operated (Customs Act,

No sufficient ground has, in my opinion, been established to warrant an extension of time of the length which would be necessary if the applicant is to be permitted to proceed. The application for an extension of time is, therefore, dismissed. It follows that the substantive application filed on 2 August 1991 must also be dismissed. The applicant must pay the respondent's costs.

I certify that this and the

preceding 11 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice

Neaves .

$MCU

W

Associate

Dated: 24 September 1991

Counsel for the applicant : Mr R. J. Patrick

Solicitors for the applicant : Colquhoun Murphy

Counsel for the respondent : Mr A. Robertson

Solicitor for the respondent : Australian Government

Solicitor

Date of hearing	: 20 September 1991
Date of judgment	: 24 September 1991

In my opinion, the applicant has not shown an acceptable explanation for the long period of delay which has occurred.

I am also of opinion that there is nothing in the material put before the Court which would suggest that a

challenge to the decision of 24 May 1990 on the grounds

. -

referred to earlier in these reasons would have any real prospects of success. The occasion for taking the decision was the inconclusive letter of the applicant dated 16 May 1990

.	which indicated that, even then, the applicant was not in a position to proceed with the application which had been lodged two and a half years before. .No basis has been shown for concluding that the respondent was under an obligation to give the applicant yet a further opportunity to put material before him before the letter of 24 May 1990 was written. The applicant had clearly been in a position to put forward for consideration any material upon which it wished to rely. It had confined itself to what was set out in the letter dated 16	May 1990. Further, on the basis of the material before the	Court, it is fanciful to suggest, as the third of the
particulars set out above does, that the respondent gave the applicant no adequate opportunity to submit further material in support of its application for a tariff concession order. The truth is, as appears from the applicant's letter dated 16 May 1990, that the applicant was not in a position to put a case to the respondent for the grant of such an order. One must also bear in mind that the applicant is free to make a