Sandvik Australia Pty Limited v Commonwealth of Australia

[1990] FCA 828

CATCHWORDS

CUSTOMS - Pt XVA Customs Acf 1901 (Cth) - Customs Tariff - Tariff Concession Order -

validity - failure to comply with notice requirements - refunds paid and duty short levied under

invalid order - whether recoverable by Commonwealth.

Customs Act 1901 (Cth) - ss.165, 2696, 2695, 269L, 269M, 269P

SANDVIK AUSTRALIA PTY LIMITED v. COMMONWEALTH OF AUSTRALIA and

COLLECTOR OF CUSTOMS

No. G 669 of 1989

Sydney

Davies, Jenkinson & Hill JJ.

9 October 1990

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) No. G 669 of 1989
GENERAL DIVISION	1

Qn a ~ ~ e a l from a single judge of the

Federal Court of Australia

BETWEEN:	SANDVIK AUSTRALIA PTY LIMITED
Appellant

1

AND.	COMMONWEALTH OF AUSTRALIA
First Respondent
AND:	COLLECTOR OF CUSTOMS
Second Respondent

Coram:	Davies, Jenkinson & Hill JJ.
Q&:	9 October 1990
Placc:	Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:-

The appeal be 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	)  No. G 669 of 1989
GENERAL DIVISION	1

On a ~ ~ e p l l from a single judge of the

Federal Court of Australia

BETWEEN:	SANDVIK AUSTRALIA PTY LIMITED
Appellant
AND:	COMMONWEALTH OF AUSTRALIA
First Respondent
P'	AND.	COLLECTOR OF CUSTOMS
Second Respondent

Coram:	Davies, Jenkinson & Hill JJ.
W:	9 October 1990
Place:	Sydney

REASONS FOR JUDGMENT

Davies J.:  This is an appeal from a judgment of a single judge of the Court. The validity

of an order claimed by the applicant to be a valid commercial tariff concession order was in issue as was the entitlement of the Collector and the Commonwealth to recover certain customs duty.

Part XVA of the Customs Act 1901 (Cth) ("the Act") was introduced in 1983 to

supersede the system of by-laws under s.271 of the Act, though that section was not repealed. By Act No. 39 of 1985 the Comptroller-General of Customs was substituted for the Minister.

This change may be ignored for our purposes; I shall speak of the Comptroller.

Section 2696 provides for the making of an application to the Comptroller for a

concession order and reads, inter a1ia:-

"2696. (1) A person may make an application in writing to the Comptroller for a concession order in respect of particular goods specified in the application.

(2) An application -

(a) shall contain such particulars as are prescribed; and

(b) shall be lodged with the Comptroller -

(9	in a prescribed manner;
(ii)	on a day other than a Sunday, a Saturday or a prescribed holiday; and
(iii)	at a time that is between prescribed hours."

In certain circumstances, an application for a concession order is deemed to have been made.

Section 269J(2) provides:-

"(2) Where the Comptroller declares, in writing, that he is of the opinion that it is desirable that consideration should be given to the making of a concession order in respect of particular goods,	an application under section 269G for a concession order in	respect of those goods shall be deemed to have been made on the
date on which he makes the declaration."

Section 269L provides:-

"The Comptroller shall not make a concession order (not being an order dealt with in a report by the Industries Assistance Commission or the Temporary Assistance Authority or an order under sub-section 269P(10) unless he has -

(a) published in the Gazette a notice -

(9	stating that an application for the order has been made;
(i i)	specifying the particular goods to which the application relates; and
(iii)	inviting any persons who consider that there are reasons why the order should not be made to submit, in a manner specified in the notice, particulars, in writing, of these reasons to the Comptroller within 28 days after the date of the publication of the notice; and

(b) considered any relevant particulars submitted in response to the invitation referred to in sub-paragraph (a)(iii)."

Publication is provided for by 269M which reads:-

"269M (1) A concession order shall be published in the Gazette as

soon as practicable after it is made.

(2) Any failure to comply with the requirements of sub-section

(1) in relation to a concession order shall not be taken to affect

the validity of the concession order.n

Section 269P provides for revocation. At the time the subject tariff concession

order was made by Mr Peter Warren, s.269P(l) read:-

"269P (1) Where the Comptroller becomes satisfied at any time during which a concession order in respect of particular goods is in force that, if -

(a) that order were not in force at that time; and

(b) an application were to be made at that time for a concession

order in respect of the particular goods,

a concession order, or a concession'order specifying the item that	is specified in the first-mentioned concession order, would not be
made in respect of the particular goods (whether by reason that the order would relate to all the particular goods, to goods included in a class of the particular goods or otherwise), the Comptroller may, in his discretion, by order in writing revoke the first-mentioned concession order."

Subsequently, s.269P was amended to include the following sub-sections:-

"(2B) Where the Comptroller becomes satisfied that, because of an amendment of a Customs Tariff or otherwise, a concession order was not, on and after a particular date (which may be the date on which the concession order came into effect) a concession order in respect of the particular goods in respect of which it was intended to make the concession order, the Comptroller may, by order in writing, revoke the concession order.

(2C) A revocation under sub-section (2B) of a concession order comes into effect on the date specified in the order of revocation, not being a date earlier than the date of the making of the order.

(11) Where a concession order is revoked under sub-section (2B), the Comptroller shall make a written order declaring that particular goods, being the particular goods in respect of which it was intended to make the revoked concession order, are goods to which the prescribed item that was specified in the revoked concession order applies, and the order so made shall be deemed to be a concession order that came into effect on the earliest date on which the revoked concession order was not a concession order in respect of the particular goods in respect of which it was intended to make the revoked concession order, which date shall be specified in the order under this sub-section."

These sub-sections came into force 28 days after 30 May 1985. The effect of a revocation under

s.269P(2B) and (11) is dealt with in s.269P(8) which reads:-

"(8) Notwithstanding the revocation under sub-section (l), (2A) or (2B) or by virtue of sub-section (6) of a concession order in respect of particular goods, the concession order continues to apply in relation to -

(a)	particular goods that -
(i) were imported into Australia on or before the date on which the revocation came into effect; and

(ii)	are entered for home consumption, before, on, or within 28 days
after, that date; and

(b)

particular goods that -

(i)	were in transit to Australia on that date; and
(ii)	are entered for home consumption before, on, or within 28 days after, the date on which they were imported into Australia."

Prior to 29 October 1984, there were in force certain by-laws giving concessional

tariffs to various steel plates or sheets. On that day, MS J.P. Williams made a declaration under

s.2695(2), the effect of which was that there was deemed to be an application to the Comptroller

for a concession order in respect of "Steel Plates or sheets". On 14 November 1984, there were

published in the Gazette certain tariff references which were proposed for conversion to tariff

concession orders. Included in the Gazette notice was the following:-

"Plates or sheets, steel, that have been annealed, normalised, quenched stress-relieved, tempered or subjected to any combination of these heat treatments, maximum carbon content 0.25 %, yield strength exceeding 345 MPa, including solution annealed plates or sheets, having a thickness greater than 105mm

(BL 8431493 TC 8432269)"

Bunge Industrial Steels Pty Limited, which apparently was the only relevant

manufacturer in Australia, advised that it had no objection to the conversion of the by-law to a corresponding tariff concession order without change of wording. Accordingly, MS Williams made a tariff concession order with effect from 29 October 1984 which described the goods as

"Plates or sheets, steel, that have been annealed, normalised, quenched stress-relieved, tempered or subjected to any combination of these heat treatments, maximum carbon content 0.25 %, yield strength exceeding 345 MPa, including solution annealed plates or sheets, having a thickness greater than 105mm

(Op.29.10.84	TC 8432269)"
Subsequently, it came to the attention of an officer in the Tariff Concession

Branch, Mr Peter Warren, that there might be a question as to whether the terminology of the

tariff concession order covered quench annealed steel plate. As can be seen, the wording of the tariff concession order, like the by-law before it, included the words "including solution annealed plates or sheets". Apparently, these words had been included at a previous time to ensure that

the word "annealed" included solution annealed plate. Mr Warren satisfied himself that the words "quench annealed"shou1d be included in the tariff concession order to remove any question of doubt.

Mr Warren proposed a new form of wording to Bunge Industrial Steels Pty

Limited which advised that the proposed re-wording was acceptable. Mr Warren then decided

to revoke TC 8432269 and, on 28 May 1985, made a tariff concession order, effective from 26

February 1985, of which the terminology was as follows:

"Plates or sheets, steel, being EITHER of the following:
(a) annealed, normalised, quenched, stress-relieved, tempered or
subjected to ANY combination of these heat treatments and
having ALL of the following:

(i)     carbon content NOT exceeding 0.25 %,

(ii) thickness of NOT less than 105mm

(iii) yield strength of NOT less than 345 MPa

(b) solution annealed or quench annealed plates or sheets

(Op.26.2.85 TC 8532147)"

The order was published in the Gazette on 19 June 1985.

This concession order did not achieve Mr Warren's limited objective for the limitations stated for the goods described in para (a) were not applied to the goods referred to in para (b). In explanation of his order of 28 May 1985, Mr Warren gave this evidence:-

"So by 28 May when you made the order 85132147 you had satisfied yourself that goods serving a similar function to those that you contemplated adding to the e.xisting concession were not manufactured in Australia and you had satisfied yourself that the only people in Australia who made anything like that sort of

amendment to the order and had advised you that they had no goods had had an opportunity to consider your opposed	objection to it?- - - I had accepted a request and investigated the
request for a variation in the description of a heat treatment on a particular steel product and accepted the term solution annealed and quenched annealed were similar for customs purposes and therefore endorsed an amendment that that identical situation for the two heat treatments should be endorsed into a concession."

Counsel submitted that, in TC 8432269, the tariff concession order made by MS Williams on 24

October 1984, the words "including solution annealed plates or sheets" were not limited by any

criterion specified in TC 8432269. But plainly they were for the word "including" was used and the
phrase appeared before the words "having a thickness greater than 105mmn.

Subsequently on 16 August 1985, in order to correct the position, MS Williams revoked

TC 8532147 as from 26 February 1985 and substituted therefor a concession order having effect from

26 July 1985 which applied to the following goods:-

"Plates or sheets, steel, being EITHER of the following:

(a)	annealed, normalised, quenched, stress-relieved, tempered or subjected to ANY cornbination of these heat treatments and having ALL of the following:
(i) carbon content NOT exceeding 0.25 %,
(ii) thickness of NOT less than 105mm (iii) yield strength of NOT less than 345 MPa;
(b)	solution annealed or quench annealed plates or sheets having a thickness of NOT less than 105mm

(Op.26.7.85 TC 8533770)"

During the period from 26 February 1985 to 15 September 1985, the appellant, Sandvik

Australia Pty Limited ("Sandvik") imported steel plates into Australia. After TC 853217 was made on 28 May 1985 retrospective to 26 February 1985, Sandvik sought and obtained from the Collector refunds totalling

$357,853.97. Subsequently, the Collector of Customs came to the view that Mr Warren's concession order

TC 8532147 was invalid and sought repayment of the $357,853.97 and payment of a further $32,004.63 alleged to be the amount of duty underpaid on steel products imported in to Australia by Sandvik during the period 26 February 1985 to 15 August 1985.

The presumption omnia praesumuntur legitime facta don= probetur in contrarium -

everything is presumed to be rightly and duly performed until the contrary is shown - applied to the tariff concession orders I have mentioned. This presumption of long standing is discussed in the 6th Edition of Dr Broom's Legal Maxims at pp.899-900. See also Bennion on Statutorv Intemretation, para 355. A presumption

of the validity of the above orders applied, on which Sandvik, an importer of steel plates, was entitled to rely,

in the absence of information showing or tending to show that the tariff concession order was invalid.

Moreover, in administrative law, the matter goes further, for as Lord Radcliffe said in Smith

v. East Flloe Rural District Council [l9561 A.C. 736 at p.769-70:-

"An order, even if not made in good faith, is still an act capable of legal

consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

In F. Hoffmann-La Roche & Co. A.G. & Ors v. Secretarv of State for Trade and Industry [l9751 A.C. 295 at

p.341, Lord Reid said:-

"It must be borne in mind that an order made under statutory authority is

as much the law of the land as an act of Parliament unless and until it has

been found to be ultra vires."

At p.352, Lord Morris said:-

"What the court is asked to enforce is a statutory instrument which each House of Parliament has had the opportunity to reject but which each House has positively affirmed. Accepting for present purposes that in certain events the court could declare that what has been laid before Parliament was something which was laid before it in excess of a Minister's powers it must remain true that unless and until that is shown the statutory instrument is part of the law of the land."

At p.365-6, Lord Diplock said:-

"Under our legal system, however, the courts as the judicial arm of government do not act on their own initiative. Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgement of the court the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed. It would, however, be inconsistent with the

controlling abuse of power by the executive arm of government if the	doctrine of ultra vires as it has been developed in English law as a means of
judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings (cf. Ridge v. Baldwin [1%4] AC. 40). Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare.
My Lords, I think it leads to confusion to use such terms as 'voidable,' 'voidable ab initio,' 'void' or 'a nullity' as descriptive of the legal status of subordinate legislation alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a court of competent jurisdiction. These are concepts developed in the private law of contract which are ill-adapted to the field of public law. All that can usefully be said is that the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to
legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question."

See also Calvin v. Carr & Ors [l9801 A.C. 574.

In the 6th Edition of his work on Administrative Law, Professor Wade states at pp.352-3:-

"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiffs lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result."

An interesting examination of this principle, including a reference to decisions of Cooke P. who excepts

patently invalid decisions from its operation, will be found in Judicial Review of Administrative Action in the

1 9 a , in a paper by M. Taggart commencing at p.70. TC 8532147, being made by an officer authorised to

make it, and being published in the Gazette, was not patently invalid. In his work on Administrative Law, P.P. Craig, at pp.3%-407, examines at some length the discretionary elements which will be taken into account in

a decision as to whether or not a court will make a finding or declaration of invalidity. A relevant example

of the refusal of an order on discretionary grounds is R. v. Secretaw of State for Social Services: Ex varte

Association of Metrowlitan Authorities [l9861 1 W.L.R. 1.

In the present case, discretionary elements could well have been important if that issue had

been raised. For example, Sandvik may have acted in good faith and to its detriment upon TC 8532147 as

made. Other importers may also have done so. Secondly, Bunge Industrial Steels Pty Limited, the Australian manufacturer, had expressed its concurrence with the wording of the concession order and made no challenge to it. Thirdly, no challenge to the concession order was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) either within time or at all. Fourthly, the powers of control over tariff concession orders are conferred by the Act upon the Comptroller, not the Collector, and those powers include the power

- l 0 -

of revocation, even to correct a mistake.	See s.269P(2B). Fifthly, the Act, by limiting the retrospective effect
of a revocation, implies a policy against setting aside a tariff concession order ab initio.	See s.269P(8).

Therefore, had the Collector and the Commonwealth made application in this Court for an

order of review with respect to TC 8532147, the principles I have mentioned may have had an effect upon the proceedings. The same position may have applied had the Collector and the Commonwealth sued Sandvik in

a Supreme Court for the recovery of the moneys sought. In addition, review of TC 8532147 by the Supreme Court may have been precluded by s.9(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

*

In the event which happened, Sandvik instituted proceedings in this Court, in reliance upon

s.39B of the Judiciam Act 1901 (Cth), seeking declarations that Mr Warren's tariff concession order of 28 May 1985 was valid, that MS Williams' revocation thereof of 16 August 1985 was invalid and that the Collector of

Customs was not entitled to recover the sums totalling $357,853.79 and $32,004.63 which he sought to recover

and seeking injunction against steps taken in such recovery. On the issues raised before him, the trial Judge

found for the respondents. No issue as to discretion was raised before his Honour.

The trial Judge declined to make a declaration that the concession order made by Mr Warren

on 28 May 1985 was valid. His Honour held inter alia, correctly in my view, that no notice had been give^

4

to the public in accordance with s.269L.	His Honour therefore held the tariff concession order to be invalid.
The reference to Bunge Industrial Steels Pty Limited did not constitute compliance with the provisions of

ona.269L. That section requires publication to the world at large. An inquiry made its only manufacturer

in Australia, even the only manufacturer believed to be interested, was not such a notice. Section 269L

operates notwithstanding that the application for a tariff concession order is a deemed application constituted by a declaration made under s.269J(2) of the Act. There is no reason arising from the wording of s.269L, or from the purpose which it serves, to exclude fkom its operation deemed applications under s.269J(2).

Much of the argument before his Honour was devoted to the question whether the

requirements of s.269L are mandatory or directory. No purpose would be sewed by embarking upon a
discussion of this topic. The requirements of s.269L are preconditions to the making of a concession order.

A substantial breach of the requirements will, if the tariff concession order is challenged, lead to a judgment setting aside the concession order made in breach thereof, unless the Court in its discretion otherwise determines. See eg. the discussion in Formosa v. Secretarv De~artment of Social Security (1988) 81 AL.R.

687.

In the present case, the provisions of the Act were not complied with because Mr Warren did

not consider that he was enlarging in any material respect the class of goods in respect of which the tariff concession order applied. Mr Warren thought that he was merely making it clear that certain goods were within the concession order. In this he was mistaken. In breach of the Act, he purportedly made a substantial concession order without complying with the procedures laid down by the Act for such an order. In the circumstances, the trial Judge rightly refused a declaration that the concession order was valid.

It was unnecessary for the trial Judge to consider the effect of the revocation of TC 8532147

by MS Williams on 16 August 1985 and it is unnecessary to do so now. The fact that MS Williams revoked

that tariff concession order, purporting to act under s.269P, and made TC 8533770 in substitution therefor might provide a discretionary ground for refusal to declare TC 8532147 invalid. But that point was not raised before his Honour.

The final question is whether or not the $357,853.79, which had been refunded to the

applicant after the making of the retrospective tariff concession order on 28 May 1985, could be recovered by the Collector of Customs. His Honour referred to the Auckland Harbour Board v. The King [l9241 AC. 318 in which, at p.326, it was said:-

"The payment was accordingly an illegal one, which no merely executive ratification, even with the concurrence of the Controller and Auditor- General, could divest of its illegal character. For it has been a principle of the British Constitution now for more than two centuries, a principle which their Lordships understand to have been inherited in the Constitution of

New Zealand with the same stringency, that no money can be taken out of

the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself. The days are long gone by in which the Crown, or its servants, apart from Parliament, could give such an authorization or ratifl an improper payment. Any

payment out of the consolidated fund made without Parliamentary authority is simply illegal and ultra vires, and may be recovered by the Government, if it can, as here, be traced."

His Honour further held:-

"Quite apart from those considerations, the provisions of s.165 establish a statutory right of recovery of erroneous refunds subject to demand being made within 12 months of the refund. There is nothing in the language of the section to limit its application to cases in which the refund is made under a mistake of fact. In my opinion, the refunds made to the applicant are recoverable by the Commonwealth. For the same reasons the Commonwealth is entitled to payment of the short levied duty. A fortiori the applicant has no right to the outstanding refunds which it has claimed.'

1

It is unnecessary to discuss the Auckland Harbour Board principle, as s.165(1) of the Act

specifically provides:-

"165.(1) When any duty has been short levied or erroneously refunded the person who should have paid the amount short levied or to whom the refund has erroneously been made shall pay the amount short levied or repay the amount erroneously refunded on demand being made by the Collector within twelve months from the date of the short levy or refund."

Counsel for Sandvik submitted that the words "erroneously refunded" in s.165(1) did not comprehend a refund made in accordance with the terms of an invalid tariff concession order. Counsel for Sandvik referred to Wollaston's Customs Law of Australia at p.106. But that authority does not assist counsel's argument.

Wollaston states: "The liability to duty may be enforced notwithstanding an erroneous construction of law or

regulatiorfs may have enabled the importer to pass his goods through the Customs House without suc-

payment." Counsel can gain no assistance from Wollas'ton's further statement: "This section applies only to

cases where Customs have short levied, ie, made a mistake and charged less duty than was properly due."

Wollaston did not limit this reference to a mistake of fact rather than of law.

On the issues which were before him, the trial Judge properly refused the declarations that

the sums totalling $357,853.79 were not repayable by Sandvik to the respondents and that Sandvik was not liable to pay to the Collector the sum of $32,004.63 alleged to be due. On the issues which were before him, the trial Judge was correct in refusing the injunctions sought.

In my opinion, the appeal should be dismissed with costs.

I certify that this and the preceding

12 pages are a true copy of the
reasons for judgment of the

Honourable Mr Justice Davies.

Associate:

U

Date:  9 October 1990

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY )	NO. G669 of 1989
GENERAL DIVISION	1

On appeal from a Single Judge of the Federal Court of

Australia

BETWEEN:  SANDVIK AUSTRALIA PTY.
LIMITED

Appellant

&Q:	COMMONWEALTH 0	F
AUSTRALIA

First Respondent "

COLLECTOR OF CUSTOMS

Second Respondent

CORAM:	Davies, Jenkinson and Hill JJ.
PLACE :	Sydney
DATE :	9  O c t o b e r 1 9 9 0

REASONS FOR JUDGMENT

JENKINSON J. W

I agree in the reasons'for judgment of Davies J. and

in the orders which he proposes.

I certify that this page is a true copy of the Reasons for Judgment of the Honourable Mr.

Justice Jenkinson.	,+'
i. . &U

Associate

Dated: fl 9 O c t o b e r 1 9 9 0

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOU TH WALES DISTRICT REGISTRY ) No G 669 of 1989

GENERAL DIVISION 1

BETWEEN :  SANDVIK AUSTRALIA PTY LIMITED
Appellant

AND :	COMMONWEALTH OF AUSTRALIA First Respondent
AND :	COLLECTOR OF CUSTOMS Second Respondent

CORM: DAVIES, JENKINSON & HILL JJ
PLACE: SYDNEY

DATED: 9 OCTOBER 1990

REASONS FOR JUDGMENT

HILL J:  I have had the advantage of reading the

judgment of Davies J and I agree with his reasons.

I certify that this page

is a true copy of the Reasons

for Judgment herein of his Honour

Mr Justice Hill.

Associate: A&J,,,x J .j4.

Date: 9 October 1990

Counsel and Solicitors	Mr J C Kelly instructed by
for Appellant:	Messrs Colin Daley Quinn & Dwyer
Counsel and Solicitors	Mr R Burbidge QC and
for First and Second	Mr L Katz instructed by
Respondents:	Australian Government Solicitor
Dates of Hearing:	7 and 8 June 1990
Date Judgment Delivered:	9 October 1990