Sanyo Australia v Comptroller-General of Customs - [1993] FCA 853

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JUDGMENT NO. ..,.llllllll.lllll .111,,,111..

IN THE FEDERAL COURT OF AUSTRALIA 1
1
) No NG 180 of 1993
)
GENERAL DMSION 1
1

BETWEEN: SANYO AUSTRALIA
Applicant

COMPTROLLER-GENERAL OF

CUSTOMS

Respondent

-: Davies J.
- Date: 21 October
Place:

Sydney RECEIVED

2 6 NOV 1993

EDEITU COURT OF

REASONS FOR JUDGMENT PRINCIPAL

EX TEMPORE REQISTRY

This is an application brought under the Administrative Decisions (Judicial Beview) Act 1977 (Cth) and under the Judiciarv Act 1903 (Cth) seeking orders of review with respect to a refusal on the part of the Comptroller-General of Customs to reconsider a refusal to grant a commercial tariff concession order in respect of television receivers having a screen size not exceeding 38 centimetres.

refused on 28 May 1990 and a letter of that date read:-

The application for the CTCO was lodged on 26 July 1989, the application was
"I refer to your application lodged 27 July 1989 on behalf of Sanyo Australia Pq Ltd for
a Tariff Concession Order for Colour Television Receivers having a screen size not
exceedmg 38cm.
You have not produced any evidence that would enable me to dismiss the claims of local manufacturers of colour television rccelvers (&m and above) that their good. are 'goods s e m g slmilar functions' to goods covered by your application
Accordmgly, your application is refused."

At that time, s.269K of the Customs Act 1901 (Cth) read:-

"(1) Where the Comptroller dec~des not to make a concesslon order for which an application, other than an applicat~on deemed to have been made under subsect~on 2695
(1) or (2), has been made (whether or not a notice referred to m section 269L In relation to the application has been pubhshed), he shall, in a prescribed manner, give the applicant notice, in writing, of the decsion.
(2) The giving of a notice under subsection (1) In respect of a concession order does not prevent the Comptroller g~ving further considerat~on to the application or applications for that concesslon order or reversing the decision by reason of which the notice was given."

The letter of 28 May 1990 constituted in my opinion a decision under s.269K(l).

However, s.269K(2) empowered the Comptroller-General in his discretion to review such a decision. That that review was discretionary, has been laid down clearly enough by Whitlam J in Foseco Ptv Limited v. m, delivered 23 April 1993 and by Ryan J in Georee Tauber Imnorts Ptv Limited v. Comutroller-General of Customs on 13

May 1993. So that at that time in 1990 the decision could have been reconsidered. On

23 October 1990 the applicant wrote to the Comptroller-General:-

"COLOUR TELEVISION RECEIVERS havlng a screen size

NOT exceeding 38cm

Tanff Concession your reference 89150172

This application was lodged wth you 27 July 1989.
Attached are self explanatory correspondence with four businesses. Since this correspondence
AWA Mtsublshi will close its CTV assembly at the end of 1990.
Sanyo has commisloned an econometric analysls of the cross elastlcly of demand between CTV
3&m and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sanyo Australia v Comptroller-General of Customs

Details

AGLC: Sanyo Australia v Comptroller-General of Customs [1993] FCA 853
Case: [1993] FCA 853
Decision Date: 21 Oct 1993

CaseChat Overview and Summary

Sanyo Australia, the applicant, sought to overturn a decision by the Comptroller-General of Customs, the respondent, to refuse a commercial tariff concession order for television receivers with a screen size of 38 centimetres or less. The case was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth). The applicant argued that the Comptroller-General had a duty to reconsider its application, which had initially been refused on 28 May 1990. The key legal issues centred on whether the Comptroller-General had a duty to reconsider the application, and if the refusal could be subject to judicial review after the legislative amendment that repealed the reconsideration power.

The court found that the Comptroller-General's discretion to reconsider was not triggered by the applicant's letter of 23 October 1990; the Comptroller-General's response of 29 October 1990 merely indicated a willingness to reconsider if new material was provided within three months. Since the material was not provided within this period, and the relevant reconsideration power had been repealed by the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992 (Cth), the Comptroller-General had no duty or power to reconsider the application when the new material was submitted in February 1993. The court concluded that no judicial review order could be granted as there was no duty for the Comptroller-General to act, and therefore dismissed the application with costs.

Orders