Parker Pen (Australia) Pty Ltd v Export Development Grants Board

Re: PARKER PEN (AUSTRALIA) PTY. LIMITED
And: EXPORT DEVELOPMENT GRANTS BOARD (1983) 67 FLR 234
No. G138 of 1982
Administrative Law - Trade and Commerce

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal on question of law - Whether expenditure on overseas promotion of well known Parker pen and other Parker products qualifies for grant under the Export Market Development Grants Act 1974 - Whether expenditure primarily and principally for the purpose of creating overseas opportunities for sale and export of Australian made Parker products - Meaning of "primarily and principally" discussed - Whether sufficient nexus between the promotion of local product and expenditure incurred.

Administrative Appeals Tribunal Act 1975, s.44.

Export Market Development Grants Act 1974, ss. 4, 12, 13, 14, 15, 40A.

Trade and commerce - Export market development grants - Eligibility of certain expenditure - Whether expenditure primarily and principally for purpose of creating overseas opportunities for sale and export of Australian made goods - Meaning of "primarily and principally" - Meaning of "purpose" - Export Market Development Grants Act 1974 (Cth), s. 4(1).

HEADNOTE

The appellant, the Australian manufacturer of "Parker" products, submitted a claim for a grant under the Export Market Development Grants Act 1974 (Cth). Grants under the Act were based upon the claimant's "eligible expenditure" incurred during the relevant grant year, which is defined in s. 4(1) of the Act to mean "expenditure that, in the opinion of the Board, has been incurred by a person primarily and principally for the purpose of creating or seeking opportunities, or creating or increasing demand, for . . . (export of goods manufactured in Australia)." The Board, established to administer the Act, disallowed certain advertising expenditure as not being "eligible expenditure", and its decision was affirmed by the Administrative Appeals Tribunal. The relevant expenditure was paid by the claimant to the advertising agencies with whom the expenditure had been incurred, not by the claimant, but by a related overseas company. Some of the invoices paid by the claimant did not necessarily have any direct relevance to any benefit that might accrue to the sales by it of "Parker" products in countries in which it shared the market for those products with related companies. From the Tribunal's decision the claimant appealed, arguing that the Tribunal had erred in law.

Held: (1) The words "primarily" and "principally" as used in s. 4(1) of the Act do not connote two separate tests. The phrase "primarily and principally" is used in the sense of "chiefly, or mainly."

Speedo Knitting Mills Pty Ltd v. Commonwealth (1981) 57 FLR 74 referred to.

(2) The purpose referred to in s. 4(1) is the subjective purpose of the claimant, but it is for the Tribunal of fact to consider all the circumstances, including objective facts as well as the claimant's own evidence of what its purpose was, and conclude whether the requisite purpose has been established.

(3)…