Son and Australian Trade Commission - [2005] AATA 227

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 227
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/23
GENERAL ADMINISTRATIVE DIVISION

Re: HE YEOB (SEAN) SON
Applicant

And: AUSTRALIAN TRADE COMMISSION
Respondent

DECISION
Tribunal:       Mr E. Fice, Member
Date:             16 March 2005
Place:            Melbourne
Decision:1.        The Tribunal affirms the respondent's decision in respect of the M.C. Stuart & Associates distribution agreement.
2.The Tribunal sets aside the respondent's decision in respect of The Creative Content Group distribution agreement and remits it to the respondent for the purpose of determining whether the applicant incurred eligible expenses in accordance with Division 1 of Part 5 of the Export Market Development Grants Act 1997.

(sgd) E. Fice
Member

BOUNTIES AND OTHER SUBSIDIES – Export Market Development Grants Scheme -transfer of business prior to application - person whose interests are affected- copyright in films- disposal of copyright - extrinsic evidence to establish intention of parties to contract
Administrative Appeals Tribunal Act 1975 ss 27, 31, 33(1)(c), 37
Copyright Act 1968 ss 13, 86, 117, 119
Export Market Development Grants Act 1997 ss 26, 37, 94, 97, 98, 99,
Allan v Transurban City Link Ltd (2001) 208 CLR 167
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Australian Trade Commission v Disktravel and Others [1999] FCA 1399
Re McHattan and Collector of Customs (1977) 18 ALR154
REASONS FOR DECISION
16 March 2005  Mr E. Fice, Member
1.      This is an application by Mr He Yeob (Sean) Son ("the applicant") seeking review of a decision by a delegate of the Australian Trade Commission ("Austrade") refusing an application made by Mr Son's company, Sean's Distribution Pty Ltd, for an Export Market Development Grant pursuant to the Export Market Development Grants Act 1997 ("the Act").
2.      Mr Son was represented by Mr B. Fitzpatrick of counsel and Austrade was represented by Ms L. De Ferrari of counsel.
3.      The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), three exhibits lodged by the applicant (Exhibits A1 to A3) and one exhibit lodged by the respondent (Exhibit R1).
BACKGROUND
4.      On 21 February 2001 Mr Son, trading as Sean's Distribution, entered into what is described as a distribution agreement with M.C. Stuart & Associates Pty Ltd (“M.C. Stuart & Associates”), whereby Mr Son acquired what appeared to be exclusive distribution rights for certain audio visual programs (films) which were listed in Appendix A of that agreement. The distribution rights were for the territory of the Republic of Korea and Japan.
5.      On 12 March 2001 Mr Son, trading as Sean's Distribution, entered into another distribution agreement, with The Creative Content Group Pty Ltd (“The Creative Content Group”). This distribution agreement is similar to, but not exactly the same, as the distribution agreement with M.C. Stuart & Associates. It provided that Mr Son was to be exclusive distributor of certain films, the property of The Creative Content Group, in the territories…

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.

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Details

Case: [2005] AATA 227
Decision Date: 16 March 2005

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, Mr He Yeob Son, trading as Sean's Distribution, sought a review of a decision by Austrade denying his company's application for an Export Market Development Grant. The Tribunal found that Mr Son had standing to bring the application as he was the sole director and shareholder of Sean's Distribution Pty Ltd. The Tribunal found that Sean's Distribution Pty Ltd was eligible for a grant under section 94 of the Export Market Development Grants Act 1997 as it had taken over the business of Sean's Distribution. The Tribunal found that the distribution agreement with The Creative Content Group Pty Ltd did constitute an exclusive licence granting Mr Son the rights to distribute films in Korea and Japan. However, the distribution agreement with M.C. Stuart & Associates Pty Ltd did not grant such exclusive rights. The Tribunal therefore affirmed Austrade's decision to deny a grant for the M.C. Stuart & Associates agreement but set aside the decision for the Creative Content Group agreement and remitted it to Austrade to determine whether eligible expenses were incurred.

Orders