Shoppr Network Pty Ltd and Australian Trade and Investment Commission

[2018] AATA 475

Shoppr Network Pty Ltd and Australian Trade and Investment Commission [2018] AATA 475 (15 February 2018)

Division:General Division

File Number(s):       2017/4520

Re: Shoppr Network Pty Ltd

APPLICANT

Australian Trade and Investment CommissionAnd  

RESPONDENT

DECISION

Tribunal:
 Mr P W Taylor SC, Senior Member

Date:  15 February 2018

Date of written reasons:         12 March 2018

Place: Sydney

The decision of 5 July 2017 is remitted to the Australian Trade and Investment Commission pursuant to section 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth), for the purpose of reconsideration of that decision.

........................[sgd]................................................

Mr P W Taylor SC, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – noncompliance with directions - export market development grants – significant change of review emphasis – remitted under s 42D of the Administrative Appeals Tribunal Act

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

1. I am going to remit the matter under section 42D. I am going to do so because the considered position of both representatives is, as I understand it, that the Applicant’s evidence (despite previous conferences and despite the hearing certificate that was filed in November 2017) will go beyond the articulated issue in the review application, and will not be ready before 22 February 2018. In that situation the Respondent contends it would not be in a position to confidently undertake the hearing that has been set down on the 27th and 28 February.  The Applicant does not contest that position.

2. The matters that have been put to me by the Applicant to explain the reasons for the noncompliance with the directions that were made in November are, in my respectful view, wholly inadequate.  They bespeak, by my understanding of them, a lack of industry in complying with the directions, and an acquiescence in the party’s own convenience, as distinct from its obligations to comply with the tribunal’s directions.

3. The situation articulated by the Applicant’s representative in exchanges with me this morning conveys to me the distinct impression that the applicant would seek to pursue the review proceedings on a basis which has a significant change, at least of emphasis, from the previously articulated ground of appeal and would involve an attempt to put at least a significantly different emphasis upon material that has previously been put to the Australian Trade and Investment Commission (AusTrade).

4. There is of course no reason why the Applicant should not be in a position to take that approach in a merits review application. However, the ordinary position in the Tribunal is that the review process will be informed and assisted by all material being provided well in advance, and by the decision maker having been afforded ample opportunity to both evaluate for its own purposes the Applicant’s case, and also to be in a position to comply with its obligations to assist the Tribunal in the review decision making process.

5. Both parties are of the view that the hearing date, which they have previously accepted and indicated their readiness to participate in, cannot proceed efficiently on the dates that have been set down.

6. Furthermore, the Respondent has foreshadowed a willingness to reconsider, and by that I mean consider again, the decision that it has made in the light of any additional material or change of emphasis that may come from the applicant in the material that has been foreshadowed.

7. In those circumstances it seems to me that the reality of the situation is that, when the new material is provided, the Respondent will, and entirely appropriately, review that material against the background of the decision that it has made.

8. In those circumstances it seems to me that the course of remitting the proceedings under section 42D will reflect both the reality of what is likely to occur and, secondly, free the Tribunal from the need to allocate yet another hearing date, or anticipate allocating another hearing date, against the background of wasting dates that have already been set aside in the light of the parties’ assurances that the matter would be ready to proceed.

9. I note that Mr Leerdam, on behalf of the Respondent, has indicated his opposition to the remittal, but I am firmly of the view that, in the circumstances of this matter, against the background of the applicant’s tardiness and apparent change of emphasis in the matter sought to be pursued in the review proceedings, that the appropriate course to take is to remit the matter to AusTrade under section 42D.

10. I remit to AusTrade the decision of 5 July 2017, pursuant to section 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth), for the purpose of reconsideration of that decision, and in connection with that remittal, for the purposes of sub-section 5 of section 42D, I specify that AusTrade must reconsider the decision by 26 April 2018.  For the purposes of sub-section 6 of section 42D, I note that either party, notwithstanding the remittal, may apply for an extension of the reconsideration period should the need arise.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of

..........................[sgd]..............................................

Associate

Dated:  12 March

Date(s) of hearing:	15 February 2018
Advocate for the Applicant:	Mr David Riwoe
Solicitors for the Applicant:	Aden Lawyers
Advocate for the Respondent:	Mr Lenny Leerdam
Solicitors for the Respondent:	DLA Piper