TEAC Australia P/L v Kelly, F.I., Comptroller General of Cutosm

Re: TEAC AUSTRALIA PTY LTD
And: FRANCIS IVOR KELLY, COMPTROLLER GENERAL OF CUSTOMS and HOWARD GARNIER,
DIRECTOR OF TARIFF CONCESSIONS AUSTRALIAN CUSTOMS SERVICE
No. G0015 of 1991
FED No. 591
Customs and Excise - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox(1), Foster(2) and Hill(3) JJ.

CATCHWORDS

Customs and Excise - Customs Act 1901 - whether Comptroller may grant Tariff Concession Order in respect of class of goods narrower than that applied for considered.

Administrative Law - Judicial Review - Customs Act 1901 - refusal to reconsider application for Tariff Concession Order - whether based upon presumed absence of power.

Customs Act 1901 (Cth): ss.269C, 269G, 269K

Customs Regulations: reg.181

Acts Interpretation Act 1901 (Cth): s.33(3A)

Corinthian Industries (Syd) Pty Ltd v. Comptroller General of Customs (1989) 86 ALR 387, discussed and distinguished.

HEARING

SYDNEY

#DATE 19:8:1992

Counsel for the Applicant: N.J. Williams

Solicitors for the Applicant: Elsworthy Jones

Counsel for the Respondent: A. Robertson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The Appellant pay the Respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

I have read in draft form the reasons for judgment of Hill J. I agree that, for the reason stated by his Honour, the appeal should be dismissed.

The only comment I wish to make concerns the Comptroller-General's power to make a Tariff Concession Order relating to a narrower class of goods than that the subject of the application. The decision of Davies J in Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs (1989) 86 ALR 387 does not determine this point.
Although I agree with Hill J that it is not necessary to reach any final conclusion on the matter for the purposes of this case, I am unable to see any reason to reject the argument that s.33(3A) of the Acts Interpretation Act 1901 permits this course. Curiously, to my mind, counsel for the Comptroller-General disavowed reliance on this provision; indeed, he argued that the subsection did not apply to such a situation. Counsel's justification for the course taken in this case was the Comptroller-General's "implied power" to make an order relating to a narrower class of goods. I see little scope for the implication of such a power in the context of the detailed scheme embodied in Part XVA of the Customs Act 1901.
It seems to me undesirable that there should be doubt whether the Comptroller-General has the power to make an order in respect of a narrower class of goods than that the subject of the application and, if so, the statutory basis of that power. I assume that significant commercial decisions, perhaps involving substantial sums of money, are made in reliance upon tariff concession orders. It is important to minimise uncertainty about their validity. The point having been exposed, though not decided, in this case, I express the hope that a decision will be taken whether or not it is desirable as a matter of policy for the Comptroller-General to have this power and the Customs Act amended to reflect that decision. In terms of reader awareness, it would seem preferable for the matter to be dealt with in the legislation setting out the remainder of the statutory scheme rather than in a general statute, such as the Acts Interpretation Act, of which many readers would be unaware.

JUDGE2

I have had the advantage of reading in draft form the judgments of Wilcox and Hill JJ.

I am in agreement with the reasons advanced by Hill J for the dismissal of the appeal. I therefore concur in the orders proposed.
For my part I prefer to express no view on the applicability of s 33(3A) of the Acts Interpretation Act 1901 (Cth) to s 269C of the Customs Act 1901 (Cth). I agree, however, that the decision of Davies J in Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs (1989) 86 ALR 387 is not authority for the proposition that the Comptroller-General has no power to make a Tariff Concession Order in respect of a narrower class of goods than that applied for.
I agree with Wilcox J that it is commercially desirable that the Comptroller-General have such a power and that this question should be put beyond doubt by an appropriate amendment to the Customs Act 1901 rather than that it be left in its present uncertain state.

JUDGE3

The appellant, Teac Australia Pty Limited, appeals against a decision of a judge of the court (Davies J) dismissing its application for judicial review of the decision of Mr Garnier, the second respondent, the Director of Tariff Concessions with the Australian Customs Service, not to grant to the appellant a Commercial Tariff Concession Order ("TCO") with effect from 5 July 1985 in respect of automatic and semi-automatic turntables having a platter mass greater than 750 grams. The application was brought pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1976. The appellant relied also upon s.39B of the Judiciary Act 1901.

The date 5 July 1985 was the date 28 days prior to the appellant's application for a TCO being made. That application was dated 1 August 1985. In it the appellant referred to four particular models of turntable and sought a concession in respect of:

"Semi Automatic and Automatic Turntable's" (sic).

The application was initially refused on the basis that an Australian manufacturer, JH Reproducers Co, later trading under the name "High Fidelity Products", manufactured in Australia high fidelity turntables. The appellant twice sought review of that decision. On the first occasion the application was rejected. The second application resulted, after considerable negotiation and with the cooperation of High Fidelity Products, in the promulgation on 5 March 1987 of TCO 8533687 in the following terms:

"TURNTABLES, audio, semi-automatic and automatic, having ALL of the following:

(a) turntable speeds of 33 1/3 r/min and 45 r/min only;

(b) wow and flutter greater than 0.06% (WRMS);

(c) operated ONLY by an external 12 V DC power supply".

The appellant on 25 June 1987 again requested review of the decision to the extent that the TCO gazetted excluded turntables operated by other sources of power supply. The decision was however affirmed and this was communicated to the appellant on 31 March 1988. On 25 August 1988 the appellant, pursuant to s.269R of the Customs Act 1901 ("the Act"), requested the Minister to refer the matter to the Industries Assistance Commission. The then Manager of Tariff Concession and Quotas declined to recommend to the Minister such a reference and this refusal was communicated to the appellant on 21 September 1988.
On 9 June 1989 the appellant sought extension of the TCO already granted to cover turntables having "Wow and flutter of 0.0555 wrms or greater" on the basis that High Fidelity Products did not manufacture turntables having such a specification. That request was refused by letter dated 14 August 1989. In the concluding paragraph of that letter the Assistant Director Tariff Concession and Quota Branch, Mr Maher, said:

"Any request for a tariff concession on turntables not already covered by TCO must be accompanied by a new application."

As a result of an application for a TCO by another interested party, a new TCO was gazetted on 22 November 1989. This TCO marginally altered the category of turntables the subject of the concession order. The precise details of that change are for present purposes irrelevant.
By November 1989 High Fidelity Products had somewhat changed its attitude to the wording of the TCO. It had realised that the limitation of the Order to turntables connected only to an external 12 V DC power supply gave it inadequate protection. It was concerned to obtain protection against the import into Australia of high quality turntables and there was no reason why turntables running on low voltage external direct current power supply might not be of high quality. It suggested to the Customs Service in a letter dated 8 November 1989 a rewording of the tariff item restricting the TCO to turntables having a platter mass not exceeding 750 grams. The agent for the appellant, on learning of the change of attitude of High Fidelity Products, wrote to the Customs Service requesting it to "process" its original application. To this request Mr Maher, on 28 December 1989, replied:

"I refer to your faxed letter of 15 December 1989 concerning correspondence addressed to the ACS from High Fidelity Products in respect of Audio Turntables. No application has been lodged in respect of the particular goods described by High Fidelity Products in the last paragraph of its letter dated 8th November 1989. Consideration may be given to the granting of a tariff concession order in the terms proposed only upon lodgement of an application in the prescribed manner."

It would appear that the change of attitude of High Fidelity Products was prompted, in part at least, by discussions with a competitor of the appellant, Sanyo, which on 27 March 1990 made an application for a tariff concession order limited in the way suggested by High Fidelity Products.
On 8 May 1990 Mr Garnier wrote to the agents for the appellant in the following terms:

"I refer to your letter of 27 April 1990 requesting a tariff concession order for semi-automatic and automatic turntables. This matter has been referred to me for consideration.

To understand the current position it may be helpful to recount some of the background to this matter. The original application for semi-automatic and automatic turntables lodged on 5/7/85 on behalf of TEAC was dealt with to finality in two parts, viz.

A TCO was made on 5/3/87 for certain DC powered turntables (8533687 refers) on 28/4/87 the application in respect of the element relating to AC powered turntables was refused - it was later reviewed and the refusal re-affirmed On 22.11.89, as a result of a different application, a TCO was made for a wider range of DC powered turntables and consequently TCO 8533687 became redundant and was revoked.

Having regard to the above events it is clear that there is currently no application lodged for semi-automatic and automatic turntables. Therefore, regardless of the current stance of High Fidelity Products concerning the wording of the CTO2 you have attached, no consideration can be given to making a TCO for these goods until an application for their concessional entry is lodged. In this regard, it may be helpful for you and your client to be aware that, as a result of a separate application, a TCO will soon be made for `audio turntables having a platter mass not exceeding 750 grams' which would appear to cover at least part if not all the particular goods of interest to you. This TCO will have an operative date of 27/2/90 ref 9002717."

The appellant, through its agent, by letter dated 19 June 1990, protested to the Customs Service at the decision to close files and refuse a number of applications including its application for turntables. It made a fuller submission on 16 October 1990. In it reference was made to the decision of Davies J in Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs (1989) 86 ALR 387, decided on 7 April 1989 and an opinion of the Attorney-General as to the effect of that case. The submission suggested that the latest ground for refusing the application was:

"... that as the agreed wording arrived at for the TCO was not the same as the wording proposed in the application, the application must be refused and a new application lodged reflecting the agreed wording."

The latter letter prompted Mr Garnier to write a letter setting out what the appellant says is a "decision" within the meaning of the Administrative Decisions (Judicial Review) Act and which "decision" is the subject of the present proceedings. Mr Garnier's letter, which bears the date 30 November 1990, is in the following terms:

"I refer to your letter of 16 October 1990 concerning an application for a tariff concession for automatic and semi-automatic turntables.

You will recall that I wrote to you on 8 May 1990 about this matter and informed you that the application lodged by Peat Marwick on behalf of Teal Aust. (sic) had been dealt with to finality. The net result of that application was the making of a TCO

(TC8533687) for certain types of turntables. The delegate was not satisfied that concessional entry should be afforded the remainder of the goods the subject of that application.

As you are aware TC8533687 has since been revoked in favour of a TCO (TC9002717) which covers a wider range of goods. Turning to your letter, I would take issue with or seek to clarify some of the assertions/suggestions you have made. First, you say that HFP has never objected to a concession for goods imported by your client; the fact remains that HFP had a justifiable objection in relation to at least some goods falling within the class of goods for which your client applied. Second, it is not true to say that the application was refused on the basis of ACN90/5. The application was determined before ACN90/5 was issued by the making of a TCO for a narrower range of goods. Subsequently, after a request to review the situation in relation to goods excluded, the reviewing officer refused to extend coverage to those goods because he was not satisfied that goods serving similar functions were not produced in Australia. Should your client wish to seek a concession for any types of turntables not covered by concession a new application will be required."

ACN90/5, which is dated 28 December 1989, was a document headed: "Australian Customs Notice". It discussed the decision in Corinthian Industries and concluded that a TCO could be approved (if appropriate) only for the particular goods identified in an application. It stated:

"The Comptroller no longer has the power to either broaden or narrow the description contained in the Application. Therefore, where amendments are required to the description (for example when responses from local manufacturers, indicate a need to modify the scope of an Application to allow the granting of a TCO), the only course available to the Comptroller is to refuse the Application."

Since a TCO once promulgated applies to all importers of the goods referred to in it and the concession is not limited to the applicant for that order, it may appear surprising that the appellant should desire to have its own application processed so as to extend to audio turntables having a platter mass not exceeding 750 grams, when a TCO in the identical terms has in the meantime been granted to Sanyo. The explanation lies in the operative date in respect of which a TCO will have effect. The operative date for a TCO granted upon the appellant's application would be 5 July 1985; that of the TCO granted upon the application of Sanyo was 27 February 1990. The commercial result of the appellant obtaining a favourable decision from the Comptroller would therefore be that all turntables having a platter mass not exceeding 750 grams, but not falling within TCO 28533687, would be retrospectively entitled to the tariff concession. In consequence the appellant would become entitled to a large refund.
The statutory background
The authority to grant Commercial Tariff Concession Orders is to be found in Part XV A of the Act. A person seeking a TCO may, in accordance with s.269G of the Act, make an application "for a concession order in respect of particular goods". For the purposes of Part XV A the expression "particular goods" is defined, subject to a contrary intention, as including:

"goods included in a particular class or kind of goods."

That application is to contain particulars as prescribed. That prescription is to be found in reg.181 of the Customs Regulations and requires, inter alia, that the application contain:

"a description that adequately identifies the goods including the tariff classification that applies to those goods."

Before the application is made notice in writing may be given to the Comptroller: s.269H. That notice likewise must adequately identify the goods to be made the subject of the prospective application: reg.182(1) of the Customs Regulations.
The Comptroller is authorised to make a TCO by virtue of s.269C(1) of the Act which provides:

"Subject to this Part, where the Comptroller, after considering an application under s269G for the making of an order under this section in respect of particular goods, is satisfied that:

(a) goods serving similar functions to the particular goods are not produced in Australia; and

(b) goods serving similar functions to the particular goods are not capable of being produced in Australia by any person in the normal course of business; the Comptroller shall make a written order, declaring that the particular goods are goods to which a prescribed item specified in the order applies."

For the purposes only of paragraphs (a) and (b) of s.269C(1):

"a reference... to `the particular goods' shall, in the case of particular goods of which there are classes or kinds, be read as including a reference to goods included in a class or kind of the particular goods."

Before making a TCO the Comptroller is required to publish a notice in the Gazette, stating that an application for an order has been made and:

"specifying the particular goods to which the application relates".

That notice serves to invite interested persons to submit information to be taken into account in determining whether the TCO should be granted: s.269L.

Once a TCO is made it takes effect, subject to certain statutory exceptions not presently relevant, on the day occurring 28 days before the day on which the application for the order was made: s.269N(3). That date is required to be specified in the order itself: s.269N(1).
The Comptroller may refuse to make a TCO in certain circumstances not presently relevant: s.269D and s.269E. If he takes this course he is required to give notice to the applicant: s.269K(1). Sub-section (2) of that section provides:

"The giving of a notice under subsection

(1) in respect of a concession order does not prevent the Comptroller giving further consideration to the application or applications for that concession order or reversing the decision by reason of which the notice was given."

The decision in Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs

Before dealing with the judgment below and the submissions of the parties, it is convenient to discuss the judgment of Davies J in Corinthian Industries. The applicant in that case sought to review a decision of the Comptroller refusing to make a TCO. The applicant had described the goods the subject of the application as door facings for internal doors of "colonial design". Later, the applicant sought the concession in respect of door facings of "any" design. The Comptroller in refusing to grant the TCO had considered evidence on such matters as cross-elasticity of demand in relation to the wider class of goods. In setting aside the decision, Davies J examined the structure of the legislation and after referring to the statutory provisions set out above said (at 393):

"... the particular goods which are the subject of s269C are the particular goods specified by an applicant in his application for a concession order. Section 269G provides that the application is to specify the particular goods in respect of which a concession order is sought. Section 269C(1) refers to the Comptroller's consideration of `an application under s269G for the making of an order under this section in respect of particular goods'. The particular goods there referred to and which are referred to on three further occasions in the sub-section are the particular goods specified in the application."

The judgment appealed against

At first instance Davies J saw the issue to be whether, notwithstanding that the appellant had made an application covering the whole range of automatic and semi-automatic turntables, it could insist that any goods included within that class and which otherwise satisfied the requirements for a TCO be the subject of a TCO. This issue his Honour resolved in favour of the respondent. His Honour said:

"An application for a TCO must specify the particular goods in respect of which the TCO is sought. If an applicant claims too wide a class of goods, the application is liable to fail. TEAC's application was bound to fail for goods of the description were produced in Australia. It is a pity that the officers of the Tariff Concession and Quota branch dealt with the matter in a considerate manner. TEAC should have been told in clear terms in 1985 that its application was too wide and must fail and that TEAC should start again. But that did not happen and, as the years passed, there were correspondence, discussions, recriminations and so on, all to no avail, because TEAC had not lodged an application for a TCO in respect of particular goods which had, in law, any prospect of success. The application lodged in 1985 was not an application for turntables having a platter mass less than 750 grams."

His Honour also expressed the view that the application lodged in 1985 had long since ceased to have any life. He did not elaborate his reasons for this view.
The submissions
Counsel for the appellant submitted that three issues were raised for consideration in the appeal. These he outlined as being:

* whether an application for a TCO may be granted in part; * whether there was power in the Comptroller to reconsider an application for a TCO after he had granted the application in part and refused it in part; * whether in the circumstances of the case the power to reconsider the application subsisted at the time of the decision under review.

The appellant submitted that there was power in the Comptroller to grant a TCO in respect of some only of the goods described in an application, and that that power derived from the application to s.269C(1) of the Act of the provisions of s.33(3A) of the Acts Interpretation Act 1901. It was further submitted that there was power, albeit no obligation to exercise that power, in the Comptroller to reconsider an application which had been refused in whole or in part, and that in the circumstances of the present case that power continued in existence. Reliance was placed on s.269K(2) of the Act in support of this submission. Counsel said that, in denying that he had such a power, the Comptroller fell into error with the result that his decision should be set aside and the matter remitted to him for further determination.
For the respondents it was submitted that there was no power in the Comptroller to grant a TCO in respect of a class of goods, being but a sub-class of the class of goods described in the application. It was submitted that the matter was disposed of by the decision in Corinthian Industries, the correctness of which decision the appellant did not challenge. Section 33A of the Acts Interpretation Act 1901 was said to have no application to s.269C. Alternatively, it was said that the appellant's application for a TCO had been dealt with to finality by a date no later than 21 September 1988 and thereafter the respondent had merely reasserted that fact. The letter of 18 July 1989 did not operate to revive the application. A corollary of that argument being correct was that there was in the present case no reviewable decision for the purposes of the Administrative Decisions (Judicial Review) Act. Finally, it was submitted that the court in the exercise of its discretion should not give relief to the appellant if otherwise there were a reviewable decision which was affected by error.
Whether the Comptroller could grant a TCO in respect of part only of the goods the subject of the appellant's application
If it be the law that the Comptroller has no power to grant a TCO in respect of some only of the goods described in an application for a TCO, that may not follow from the decision in Corinthian Industries. In that case Davies J was concerned with the possibility of a grant of a TCO in terms wider than applied for, not the grant of a TCO in terms narrower than that specified in the application.
Whatever the situation may be in a case such as the present, it is clear that the Comptroller would have no power to grant a TCO in respect of a class of goods wider than that specified in the application. The legislation requires the "particular goods" to be specified in the application and details of that application are to be advertised publicly, so that those affected may make submissions in opposition. The policy behind the requirement of advertising might be defeated by permitting the grant of a TCO covering a class of goods wider than that advertised. The Act also requires the Comptroller to test the matters stipulated in s.269C(1)(a) and (b) by reference to the particular goods, that is to say by reference to the class or classes of goods set out in the original application.
However, different questions may arise where the class of goods specified in the TCO is narrower than that stipulated in the original application. In such a case, the narrower class will have been subsumed in the wider and will have been included in the class advertised. The class nominated in the application will have been tested against the criteria in s.269C(1)(a) and (b) and at least the narrower class will have survived that test. There appears to be no policy reason against permitting the making of a TCO order in narrower terms than the application. On the contrary, it would appear administratively inconvenient for the Comptroller not to be able to grant a TCO in respect of some only of the goods applied for, where the criteria of the Act are satisfied in respect of that narrower class, without requiring the applicant for the concession to reapply and then readvertising.
Provided s.269C is properly to be characterised as a section conferring power, (and this was conceded by the Comptroller before us), there is a strong argument that s.33(3A) of the Acts Interpretation Act operates to permit the Comptroller to make a TCO in respect of a class of goods being but part of the overall class of goods for which the TCO order was originally sought. Section 33(3A) provides as follows:

"Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) with respect to particular matters (however the matters are described) the power shall be construed as including a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters."

Section 269C clearly authorises the making, in cases to which it applies, of an instrument, the TCO itself. However, it was submitted for the Comptroller that the power in s.269C was not a power exercisable with respect to "particular matters". It was submitted that the provisions of s.33(3A) applied only to a statute where the power was expressed to relate to more than one matter so that the power might be exercised in respect of some one or more of those matters. As the written submissions of the respondent put it:

"Section 33(3A) operates by reference to the nature of the power, not the circumstances that the power may be exercised in a particular way."

This submission is not, despite the decision of Brennan J in Re Brian Lawlor Automotive Pty Limited v Collector of Customs (NSW) (1978) 1 ALD 167 at 171, to which we were referred, (a decision on s.33(3) of the Acts Interpretation Act) self-evident. Indeed, that case appears to have no relevance to the question at all. Nor is it necessarily clear that s.269C is to be characterised relevantly as a section conferring a power, albeit that it authorises the making of a TCO. In fact, s.269C imposes upon the Comptroller, once the statutory criteria are satisfied an obligation, rather than a power. That obligation is expressed in specific terms. That the Acts Interpretation Act distinguishes between Acts conferring power and acts imposing a duty can be seen from sub-ss.(1) (2) and (2B) of s.33.
If the correct characterisation of s.269C is that it confers a power (where the preconditions of the section are met), notwithstanding that the Comptroller is bound to exercise the power, it is strongly arguable that the words "particular matters", used in a statute intended to embrace a wide diversity of instruments, are apt to refer to a particular class of goods the subject of a TCO.
If s.33(3A) has no application, it is perhaps arguable that the same result could follow from reading into the opening and closing words of s.269C(1), the definition of "particular goods" contained in s.269B(1), notwithstanding that by force of s.269C(3) a different definition of that expression is used for the purpose of interpreting paras.(a) and (b) of s.269C(1).
For reasons I shall later express, however, it is not necessary to reach a final conclusion on these submissions.
I would add that counsel for the Comptroller suggested that there might be an implied power to grant a TCO for a narrower class of goods than that expressed in the original application, provided that there was a substantial identity between the class of goods described in the application and that nominated in the TCO. The power so to do was said to be "an implied power". Counsel did not specify the criteria to be applied in determining whether there was such a substantial identity or who should determine that issue. It may be noted that in the present case the Comptroller had in fact granted a TCO in respect of the appellant's application referring to a class of goods substantially narrower than the class of goods described by the appellant in that application. The basis for this has not been indicated.
There is considerable difficulty in the "implied power" argument, not least because of the definite article "the" in the reference to "particular goods" in the closing clause of s.269C. But, once again, this issue need not be resolved.
Whether the refusal of the Comptroller was based on absence of power
At the heart of the appellant's submissions was the proposition that the letter dated 30 November 1990 was affected by error, that error being the Comptroller's belief, either that he had no power to grant a TCO for part only of the goods applied for, or that, having exercised the power under s.269C in respect of a subclass of the goods the subject of the original application and having refused to exercise the power in respect of the remainder of the goods, he no longer had power to reconsider the matter.
For present purposes I am prepared to assume that the Comptroller can, should he so desire, review applications which have been rejected. A power to reconsider an adverse decision is to be found in s.269K(2) of the Act. It may, no doubt, be exercised in appropriate circumstances. However, clearly s.269K(2) goes no further than that. In particular, the Act imposes no obligation of reconsideration upon the Comptroller. This was conceded by the appellant.
The question in the present case is whether the appellant has established that the second respondent denied the appellant's request for further reconsideration because of an error of law as to the absence of power, or whether further review was denied because he held the view that the matter should not be subject to further review.
It is true that some of the language of the correspondence between the Australian Customs Service and the appellant suggests that the decision to refuse further consideration of the residue of the appellant's application may have depended upon a view about power. That correspondence must, however, be viewed in context and viewed in context I do not think that it should be so understood. By 14 August 1989, the Comptroller had disposed of the entirety of the appellant's application. While it is true that a marginal change was made to the TCO on 22 November 1989, that does not matter. Thus the Comptroller was entitled in his letter of 28 December 1989 to treat the matter as concluded and to require the lodgement of a new application should the appellant desire to pursue the matter further.
This understanding of the situation is supported by the letter of 8 May 1990, in which Mr Garnier reiterated that the appellant's application had been "dealt with to finality". He made no suggestion that the Comptroller lacked power to reconsider the matter. Rather, the letter reflects the view that full consideration had been given to the application; it had been granted in part and the balance had been rejected, the rejection had been reviewed and confirmed and the matter was at an end. It is not to the point that this position was not accepted by the appellant, which continued to press for further reconsideration. The letter of 30 November 1990, the critical letter according to the appellant, is merely a reiteration of the earlier intimation that the appellant's application was spent. The writer was entitled to take that view. Even where there is power to reconsider, there must come a time when an administrative decision must be treated as final. In my view that time had arrived in September 1988, or at the latest by November 1989 when the varied TCO issued. Thus, even if the letter of 30 November 1990 communicates a reviewable decision, a question upon which I express no opinion, it discloses no error. The second respondent was entitled to treat the appellant's 1975 application as spent and he did so.
The appeal must be dismissed with costs.

[1992] FCA 591

19 AUGUST 1992