Sanyo Australia v Comptroller-General of Customs

[1993] FCA 853

8 53 193

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 less, on the one hand and CTlr of .I&m and above.

Would you please confirm to me that, when this analysis is complete and Sanyo can make a further submission, you will consider this further submission in the context of Sanyo's 27 July 1990 applicatlon, nomthstandmg your 28 May 1990 refusal."

That was responded to by a letter of 29 October 1990 which read:-

"I refer to your letter of 23 October 1990 wh~ch has been referred to me for

considerat~on.

As you would be aware the apphcant can seek reconsideration of an application under
s.269K(2) and it is a t the discretion of the Comptroller or hi delegate as to whether the applicat~on is re-opened. In practice, the ACS mll usually review a decision on request

in relat~on	to the grounds put forward and make a new decislon provlded the request is
received within a reasonable time and the addlt~onal	tendered information is new and
relevant to thc application.	A penod of up to 6 months from decision date is normally
considered reasonable.

It is 5 months since the decis~on on your applicat~on was made but havlng regard to the nature of the material you intend to provlde a further 3 months would be considered reasonable in 1111s mstance.

In relation to the econometric matenal I would suggest that, as a prerequisite, you endeavour to agree with the objectors on the parameters for the goods involved. This may avoid protracted debate later on this aspect. If you experience diiculties Customs

would be happy to act as facll~tator as a meeting between the parties."

The applicant replied:-

"Thank you for your three months extension and for your advice.	I will contact you soon
about thls."

Nothing then transpired until 25 February 1993 when the following letter, which enclosed

an econometric study, was forwarded to the Comptroller- General:-

"Colour Telev~sion Receivers having a screen size not exceeding 3&m

Pat, enclosed is econometric study showing no s i m c a n t pan of Australia in wluch there would besi@~cant cross-clastlnty of demand between thecolour television receivers, the subject of this applicatlon and any locally producecl goods.

T h ~ s applicat~on is still current, accordingly, please make this CTCO."

However by that time there had been an amendment to the legislation which had
been introduced by the Customs Levislatlon (Tariff Concessions and Anti Dumping)

Amendment Act 1992 (Cth). That repealed s.269 K(2), which transitional provisions

"(1) Desp~te its repeal by sectlon 10 of this Act, Part XVA of the Pmcipal Act continues

In force m relat~on to each Commerc~al Tariff Concess~on Order o') made before

that repeal or made aher that repeal m awrdance with subsection (2).

(4) Despite subsection (l), the Comptroller does not have the power under subsection 269K(2) of the Principal Act as continued in force, to reconsider a decision on an application for a CTCO unless:

(a) the Comptroller had begun to exernse that power before the repeal; ..."

Accordingly on 1 March 1993 the Comptroller-General wrote to the applicant as follows:-

"I refer to your letter of 25 February 1993 concerning your application for color television

rece~vers lodged on 27 July 1989

T h s appl~cation was refused on 28 May 1990.

As the application does not fall into any of the categories of application prescribed in

Section 20 (4) of the Customs Legislat~on (Tariff Concessions and Anti-Dumping)

Amendment Act the Comptroller does not have the power to reconsider it "

Mr J. Svehla, counsel for the applicant, has submitted that there was a duty on the Comptroller-General

to reconsider the refusal of 28 May 1990 and he submitted that that

duty arose from the applicant's letter of 23 October 1990.

In my opinion there was no such duty arising from the request to reconsider. The

Comptroller-General was not under a duty to consider, he had a power of

reconsideration and I think it is clear from the Comptroller-General's letter of 19 October 1990 that he did not then embark upon a reconsideration but merely indicated that if material was put in within an additional period of three months he would conslder it and would reconsider. There may have been a duty to reconsider from that response,

and I need not give determination whether or not, having regard to that letter, the Comptroller-General would have been required to reconsider the matter had the material

been provided within a three month period. However, the material was not supplied

within the three month period.

When the applicant wrote in February 1993 seeking in effect at that time a reconsideration there was no consideration then on foot and there was no power in the Comptroller-General to reconsider. The posltion was not as specified in s.20(4)(a) of the amending act, that the Comptroller had begun to exercise that power before the repeal of s.269K(2). It is clear that the Comptroller-General had not commenced reconsideration. The Comptroller had merely Indicated by his letter of 29 October 1990 that if material were placed before him within the period of three months he would reconsider it. That material was not placed before him within that time, or until after the repeal of s.269K(2).

In my opinlon the applicant's letter of 23 October 1990 did not enliven a power; there was a power at the time in the Comptroller-General and it was not a power which that letter enlivened in the sense that by lodgng the letter there was a duty imposed on the Comptroller-General then to exercise the power. That letter, the applicant's point of view, was responded to by the Comptroller-General in his letter which merely said that there was a power to reconsider, tune limits were taken into account in determining whether or not there would be a reconsideration and that if material was lodged within an additional penod of three months the matter would be reconsidered, but there is nothing in those facts from which it can be said that the sending by Sanyo of its letter of 23 October 1990 enlivened the power in such a way that there was a duty then on the

Comptroller-General to consider it.

In my opinion, the power at that point of time was the power ansing under s.269K(2) and it was a discretionary power and would remain discretionary notwithstanding Sanyo's letter. When the further material was lodged in February of 1993 there was no longer any power in the Comptroller-General to reconsider the refusal

of 28 May 1990.

Another way in which Mr Svehla put the matter was that the Comptroller-

General's letter of 29 October 1990 constituted a decision reversing the refusal and it

thereby enlivened the original application lodged on 26 July 1989 which stlll requires to

be dealt with.

In my opinion the letter of 29 October 1990 should not be so read. It merely

indicated that if material was put in withln the time specified the matter would be further

considered. Mr Svehla relied on s.33 of the Acts Interpretation Act 1901 (Cth) but, in	my opinion, that provision adds nothing to the matters under consideration. The issue
is whether the Comptroller-General was under a duty to consider the material which was
put before him in February 1993. Not only did the Comptroller-General then have no
duty to consider that material, he had no power to do so.

The h a 1 way in which Mr Svehla put the matter was that there was an accrued

right of judicial review notwithstanding the effective provisions of the amending act of

1992. I am not sure that I understood aU aspects of this submssion. It is not suggested

that any right of judicial review dld not continue by reason of the amending act. It may have done. But the question of whether relief by way of judicial review can be granted depends upon the polnt with which I have already dealt, namely, whether or not the

Comptroller-General was under a duty to take any step in relation to this matter.

In my opinion the Comptroller-General was not under such a duty, either in 1990 or when the further material was delivered to him in 1993. There is on the file a notice of objection to competency. I do not think it is necessary to deal with that matter. The issue seems to me to turn on the question as to whether there was a duty. If there was

a duty I have no doubt an order by way of judiclal review would have been granted to ensure that a duty not performed was performed but there was no duty and accordingly no order by way of judicial revlew, whether under the Judic~al Review Act or under the Judiciarv Act would be made.

For those reasons the application should be dismssed with costs.

I certify that this and the 6 preceding pages

are a true copy of the reasons for judgment herein

of Mr Justice Davies.

Date: 21 October 1993

Counsel for the applicant:	Mr J. Svehla
Solicitor for the appl~cant:	Mr G. Cantelo
Counsel for the respondent:	Mr S. Gageler
Solicitor for the respondent:	Australian Government Sol~citor
Date of hearing:	21 October 1993
Date of judgment:	21 October 1993