Torian Wireless Limited and Austrade

[2011] AATA 947

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 947

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No. 2011/4141

GENERAL ADMINISTRATIVE DIVISION		)
Re		TORIAN WIRELESS LIMITED

Applicant

And AUSTRADE

Respondent

DECISION

Tribunal  G. D. Friedman, Senior Member

Date 9 December 2011

Place Melbourne

Decision  The Tribunal refuses the application for an extension of time.

..............................................

Senior Member

Industry research and development – extension of time to lodge application for review ­­­– exercise of discretion

Administrative Appeals Tribunal Act 1975 s 29(7)

Export Market Development Grants Act 1997 s 9

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Re The Wizard Group Pty Ltd and Australian Trade Commission [2011] AATA 383

REASONS FOR DECISION

9 December 2011   G. D. Friedman, Senior Member

1.      On 10 June 2010 Austrade issued Torian Wireless Limited (Torian) with a Notice of Determination indicating that it had declined to exercise its discretion under the Export Market Development Grant Act 1997 (the Act) to favourably consider the application by Torian for an export market development grant.

2.      In a letter dated 20 July 2010 to Austrade, Torian expressed its dissatisfaction with the Austrade decision; this was treated by Austrade as a request for internal review. In an email dated 19 April 2011 Austrade provided Torian with reasons for confirmation of the original decision. In a letter dated 27 May 2011 Austrade provided Torian with formal notification of the adverse decision.

3.      On 27 September 2011 Torian lodged an application with the Tribunal for review of the decision, which was more than three months outside the 28-day time limit.

ISSUE

4.      The issue before the Tribunal is whether an extension of time within which to lodge an application for review should be granted.

RELEVANT LEGISLATION AND PRINCIPLES

5. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) states:

The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

6.      In determining applications for extension of time, the Tribunal has been guided by the principles stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. He stated at [18]:

… The ‘prescribed period’ of 28 days is not to be ignored … Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained … It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.

7.His Honour set out another five principles:

·whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as having been finalised;

·any prejudice to the respondent or any other party;

·the absence of such prejudice is insufficient to justify the grant of an extension and any wider prejudice to the general public in terms of disruption to established practices or the unsettling of other people;

·the merits of the substantive application are to be properly taken into account;

·considerations of fairness between the applicant and other people in a similar position are relevant to the exercise of the discretion.

CONSIDERATION

explanation for the delay

8.      Mr G Parthimos, Director of the company, told the Tribunal that it was unable to lodge its application for review within 28 days of the decision under review because the company had been placed under external administration, resulting in a delay in receiving legal advice; additionally, one of the company’s directors had been overseas during that period, although at the hearing Mr Parthimos conceded that the absence of the director occurred after the 28-day time limit for lodging the application for review.

9.      While Torian has provided explanations for its delay, these are not satisfactory. The company had ample opportunity to seek review of the decision under review within the 28 day period and there is no material before the Tribunal to support the contention that the provision of legal advice was in any way delayed by the decision to place the company under external administration, which occurred on 1 September 2011. The absence of one of its directors after the expiry of the time limit for seeking review is not a sufficient explanation for the delay in making an application to the Tribunal. The Tribunal is not satisfied that Torian has an acceptable explanation for its delay of more than three months, and this factor weighs strongly against granting an extension of time.

has the applicant rested on its rights?

10.     Since receiving the decision of Austrade in May 2011 Torian has made no attempts to notify the respondent or the Tribunal of its intention to seek review. The Tribunal finds that Torian has rested on its rights and that this factor weights against granting an extension of time.

prejudice to other parties

11.     There is little evidence to suggest that Austrade would suffer significant prejudice if an extension of time were to be granted and the Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.

wider public considerations

12.     Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty relating to time limits. The Tribunal finds that this factor weights against granting an extension of time.

the merits of the substantive application

13.     Torian lodged its 2008-09 export market development grant application on 30 November 2009 as a year-three claim. In the letter dated 27 May 2011 Austrade informed Torian that it was unable to meet criteria required to obtain the grant. Specifically Austrade found that: Torian has not demonstrated that during the 2009-10 financial year it had sufficient financial resources to maintain the international business; the earlier claimed prospective export sales and trading activities have not materialised; it has not demonstrated that a substantial economic benefit would be generated from its international business activities; and that Torian has disposed of the relevant intellectual property and the substance of the business to a company associated with Torian yet not a related party.

14.     In addition to the failure to meet the above requirements Torian also failed to provide all the mandatory documents within the required time period.

15.     In Re The Wizard Group Pty Ltd and Australian Trade Commission [2011] AATA 383, the Tribunal stated at [15]:

Section 73(2) of the Act was introduced in 1999 following a decision of the Tribunal that interpreted s 70(1)(b) of the Act, that is, the requirement to make applications within five months of the end of the grant year, as being mandatory. The Explanatory Memorandum to the amending bill spoke of the amendment as being, “...intended to remove any possibility that Austrade has the power to accept an application lodged subsequent to the conclusion of 5 months after the end of a grant year.”

16.     Accordingly Austrade cannot consider Torian’s application for a grant as the relevant documents were provided more than five months after the end of the grant year.

17.     The Tribunal finds that if an extension of time was granted, Torian would still have no entitlement to a grant because of its failure to meet the requirements under the Act. Therefore there is little merit in the substantive application, so this factor weighs strongly against granting an extension of time.

considerations of fairness

18.     There is nothing unique or special about Torian’s situation, or in the reasons it put forward to explain its delay in seeking review by the Tribunal, that would make its situation markedly different to other applicants in similar situations.

CONCLUSION

19.     In considering all of the relevant factors the Tribunal is not satisfied that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time.

DECISION

20.The Tribunal refuses the application for an extension of time.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

…………………………………………………………..

Michael Heffernan

Associate

Dates of hearing:  9 December 2011
Date of decision:  9 December 2011
Date of written reasons:               12 January 2012
Advocate for applicant:               Mr G Parthimos
Advocate for respondent:            Mr D Parker, Austrade