Safetycare Australia Pty Ltd v Australian Trade Commission

[1998] FCA 1273

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 645 of 1997

BETWEEN:

SAFETYCARE AUSTRALIA  PTY LTD
FIRST APPELLANT

VIDEOTRAIN PTY LTD
SECOND APPELLANT

AND:

AUSTRALIAN TRADE COMMISSION
RESPONDENT

JUDGES:	HEEREY, TAMBERLIN AND SUNDBERG JJ
DATE:	1 SEPTEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is an appeal from Finkelstein J who dismissed an appeal from the Administrative Appeals Tribunal (AAT) against a decision under ss 19 and 38 of the Export Market Development Grants Act 1974 (Cth) to limit the combined export grants to the appellants to $250,000 for the 1994 year.

The factual background and relevant details of the legislation are set out in his Honour’s judgment.

We agree with his Honour that it was open to the AAT to find, as a matter of fact, that the establishment of Videotrain’s management training video business and its expansion into the export market constituted an “act” which had the effect of “transferr(ing) or re-arrang(ing) a business activity” of SafetyCare, within the meaning of s 38(2) and that a substantially similar activity was being carried on by Videotrain as a result of an “other business arrangement” within the meaning of s 19(1)(b).

The question was one of characterisation.  The AAT saw the core activity of each company as being “research, development and production of training material” and Videotrain’s export venture as “merely reflective of a re-arrangement of potential topics to which research, development, production and marketing can be applied”.  Given the close practical connection between the two companies in terms of ownership, management, location of premises and format of the videos themselves, the AAT’s conclusion was clearly open as a matter of fact.

The appeal will be dismissed with costs.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Tamberlin and Sundberg

Associate:

Dated:            1 September 1998

Counsel for the Appellants:	Mr PJ Hanks
Solicitor for the Appellants:	Home Wilkinson & Lowry
Counsel for the Respondent:	Ms D S Mortimer
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 September 1998
Date of Judgment:	1 September 1998