Two Feet and a Heartbeat Pty Ltd and Australian Trade and Investment Commission - [2019] AATA 5607

Two Feet and a Heartbeat Pty Ltd and Australian Trade and Investment Commission [2019] AATA 5607 (24 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0144
Re:Two Feet and a Heartbeat Pty Ltd
APPLICANT

AndAustralian Trade and Investment Commission
RESPONDENT

DECISION
Tribunal:Deputy President Boyle

Date:24 December 2019
Place:Perth

The decision under review is set aside and the matter is remitted to Austrade for reconsideration with the direction that section 94(2) of the Act does not apply to the Applicant.
.........................[sgd]...............................................
Deputy President Boyle
CATCHWORDS
TRADE AND FOREIGN MARKETS – Export Market Development Grant – continuation of a business – jurisdiction of the Tribunal – relevant test under s 94(1) – purchase of business – Ministerial Guidelines – Administrative Guidelines - whether applicant carrying out business that is same or similar to previous business – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 – ss 29, 29(2), 37, 37(1)(a)
Export Market Development Grants Act 1997 – ss 29, 29(c)(i), 94, 94(1)(a), 94(1)(b), 94(1)(b)(i), 94(1)(b)(ii), 94(2), 94(2)(c), 97, 97(1), 97(1)(c), 98, 98(1), 98(4), 99, 101, 101(2)
CASES
Allmaster Software Pty Ltd and Australian Trade and Investment Commission [2019] AATA 506
Amlink Technologies Pty Ltd and Australian Trade Commission [2005] AATA 359
Australian Trade and Investment Commission v Isaac Jewellery Pty Ltd [2009] FCA 37
Ferreira and Secretary, Department of Social Services [2018] AATA 1290
Kang and Secretary, Department of Social Services [2019] AATA 758
Nysan and Asia Pacific Pty Ltd and Australian Trade Commission [2015] AATA 208
SECONDARY MATERIALS
Explanatory Memorandum, Export Market Development Grants Bill 1997 (Cth) cl 94
Export Market Development Grants Administrative Guidelines – Part 8 – Miscellaneous paras 8.2.1(a), 8.2.1(b)
Export Market Development Grants (Change of Ownership of Business) Guidelines 2016 paras 4, 4(2)(b)
REASONS FOR DECISION
Deputy President Boyle
24 December 2019
THE APPLICATION

The Applicant seeks the review of a decision dated 3 December 2018 by which a delegate of the Chief Executive Officer (CEO) of the Respondent (Austrade) confirmed the assessment of the Applicant’s entitlement to a grant under the Export Market Development Grants Act 1997 (the Act) made by undated Notice of Determination of Grant No. 270319 (the NOD)
BACKGROUND
By an undated application lodged (according to Austrade) on 24 February 2018 (R1, T11), the Applicant sought a grant under the Act. In the application for the grant the Applicant described its core business as a tourism operator providing guided walking tours and claimed expenses as a ‘first time applicant’ totalling $60,364 over the 2015-2016 and 2016-2017 grant years.
By a notice of determination of grant No. 270319 (R1, T9), which Austrade describes as dated 20 June 2018 (Austrade’s SFIC para. 4.1) but which bears no date, Austrade assessed the Applicant as ‘carrying on similar business activities to that [sic] carried on by “Bounce Walking Tours (BWT)”’, a previous owner, which had received a grant. As a result Austrade did not accept the Applicant as a first time applicant for a grant which would have entitled the Applicant to claim eligible expenses for the grant years 2015-2016 and 2016-2017 under s 29(c)(i) of the Act (see [16] below). Austrade did not accept any claim in respect of expenses for the 2015-2016 grant year and assessed the Applicant’s eligible expenses for the 2016-2017 grant year as being $16,686. Applying the formula for the calculation of the grant under s 63 of the Act, Austrade calculated the Applicant’s entitlement to a grant at $5,843.
By letter dated 11 July 2018 (R1, T6) the Applicant sought the review of that decision.
It does not appear to be disputed by Austrade that the Applicant’s letter of
11 July 2018 constituted a request to the CEO of Austrade to reconsider the reviewable decision for the purposes of s 98 of the Act (see [19] below). I have treated it as such.
By letter dated 3 December 2018 (Attachment 5 to the Applicant’s SFIC but not included in the documents produced by Austrade under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the T documents)) Ms Helene Luetchford, whose title as it appears on that letter is ‘EMDG Regional Manager’, advised that ‘the reviewing officer [had] upheld’ the decision. I note the obligation under s 98(4) of the Act is for the CEO of Austrade is to ‘reconsider the decision’ and to ‘confirm or vary the decision’.
I further note that while the letter dated 3 December 2018 advised that the ‘reviewing officer…upheld the decision’, that letter goes on to advise that the basis upon which the reviewing officer apparently ‘upheld’ the decision was that he or she had:
…exercised the discretion under Section 94(1)(b)(i) the EMDG Act to declare the applicant to be carrying on the business activities previously conducted by Rebecca Louise Giglia T/A Bounce Walking Tours which has received one (1) previous grant.
Apart from the language of the 3 December 2018 letter not reflecting the Act, the basis upon which the decision was supposedly ‘upheld’ is potentially different to the basis upon which the decision was made in the first place. This issue is dealt with below.
Following the letter of 3 December 2018 there was an exchange of emaiIs between the parties (R1, T10) in which:
(i)by email dated 3 December 2018 (R1, T10/52-53) Austrade advised the Applicant that the original assessment had been ‘upheld’ and attached a ‘general outcome letter’ (This letter was not included in the T documents but I assume is the letter of that date being attachment 5 to the Applicant’s SFIC (see [5] above))
(ii)by email dated 13 December 2018 the Applicant provided its ‘response to your rejection of our appeal’ (R1, T10/52). I am unable to find the response in the T documents or the material provided by the Applicant.
(iii)by email dated 4 January 2019 (R1, T10/50-51) Austrade apparently responded to the Applicant’s response of 13 December 2018 to the rejection of the appeal.
On 10 January 2019 the Applicant lodged the present application in the Tribunal. On

25 January 2019, without opposition from Austrade, pursuant to s 29(7) of the AAT Act the Tribunal extended the time for the making of the application.
THE ISSUES
The Applicant on page 14 of its SFIC in effect identified the issues as being:
Austrade exercised its powers under Section 94 of [the Act] and treated Two Feet as a continuation of the business of Bounce Walking Tours (BWT)…
This decision means that the 2016/2017 application lodged by 2 Feet becomes their second application and not their first application. This has the effect of disallowing the 2015/2016 expenses resulting in a significantly less grant payment.
and contends that:
Austrade was in error in applying Section 94(2)(b)(i) [sic] and they should not have treated Two Feet as a ‘continuation of the business, or a relevant part of the business’ of BWT
And
Austrade was in error in stating that Section 94(2)(b)(ii) [sic] also applies…
(Note: I have assumed that the references by the Applicant s 94(2)(b) are meant to be references to s 94(1)(b) of the Act)
Austrade at paragraph 7 of its SFIC identifies the issues as follows:
First, the application of either test in section 94(1)(b)(i) (Test 1) or 94(1)(b)(ii) (Test 2) of the EMDG Act does not depend on the exercise of a discretion. While the facts of a particular case may lend itself more to the application of either test, and the EMDG Administrative Guidelines provide some assistance in this regard, the AAT ought to have primary recourse to the statute itself in deciding whether either test applies.
Secondly, the Applicant's arguments, at various points, erroneously conflate Tests 1 and 2 … and it is necessary for the AAT upon review to ask and answer the right question. In other words, to distinguish between whether the new owner is carrying on the business or part of the business (Test 1) or whether an investigation of the similarities between the old business and the new business is required (Test 2).
Thirdly, the focus of Test 1 (which the Respondent contends applies here) only requires a consideration of the facts 'at a later time' to the previous ownership by BWT and 'there is no requirement for the business to be carried on for any particular period of time'
While the parties use different language to express the issues for determination, the thrust of each is, relevantly, the same. I identify the substantive issues for determination as being:
(a)Does either s 94(1)(b)(i) or s 94(1)(b)(ii) of the Act apply to the Applicant;
(b)To determine the answer to (a), it is necessary to determine whether the business carried on by the Applicant in the relevant period was:
(i)the business or part of the business formerly carried on by Bounce Walking Tours (BWT) (the old business); and/or
(ii)a business that was similar to the old business or part of the old business to such an extent that it should be treated as a continuation of the old business.
THE HEARING
The matter was heard on 6 September 2019. The Applicant was represented by one of its directors, Mr Ryan Mossny, assisted by Mr Denver Davies, a consultant, and Austrade was represented by Mr L Leerdam of law firm DLA Piper.
Mr Mossny gave evidence at the hearing and was cross-examined by Mr Leerdam. The following documents were admitted into evidence:
(a)Export Market Development Grants (Change in Ownership of Business) Guidelines 2016 (Exhibit A1);
(b)Witness Statement by Mr R Mossny dated 24 May 2019 (Exhibit A2);
(c)Supplementary Witness Statement by Mr R Mossny dated 241 June 2019 (Exhibit A3);
(d)Applicants’ Statement of Facts, Issues and Contentions (the Applicant’s SFIC) (Exhibit A4);
(e)Section 37 T documents T1 to T59 (pp. 1–265) (Exhibit R1); and
(f)Supplementary s 37 documents S1 to S38 (pp. 1–111) (Exhibit R2).
The parties were given leave to file written closing submissions. Austrade provided its written closing submissions on 7 October 2019 and the Applicant provided its written closing submissions on 1 November 2019.
On 5 December 2019 I also sought further submissions from the parties on what each of them contended the decision for review by the Tribunal is and whether the application for review was made within the time required by s 29 of the AAT Act. Submissions on those issues were received by the Tribunal from both parties on 20 December 2019. As leave had been granted for the making of the application (see [8] above), there is no issue as to the application being made within time.
THE LEGISLATIVE FRAMEWORK
Part 5 of the Act defines eligible expenses for an application for a grant. Section 29, which appears in Part 5 of the Act, relevantly provides:
Eligible expenses—general
Subject to section 30, expenses incurred by an applicant for a grant in respect of a grant year are eligible expenses if the following conditions are satisfied:
…
(c) the expenses were incurred (within the meaning of Division 3) by the applicant:
(i) if the applicant is not a grantee in respect of any previous grant year—during the grant year or the immediately preceding year; or
(ii) in any other case—during the grant year;
Section 94 of the Act relevantly provides:
Change in ownership of business etc.
(1) Subsection (2) applies if:
(a) at any time, a person (the previous owner) carried on a particular business (the old business) in Australia; and
(b) at a later time, another person (the new owner) carries on:
(i) the business or a part of the business (the relevant part); or
(ii) a business (the new business) that, at that time, is similar to the old business, or a part of the old business (the relevant part), carried on by the previous owner before that time, to such an extent that the CEO of Austrade is satisfied that the new business should be treated as a continuation of the old business; and
(c) the new owner applies for a grant in respect of a grant year.
Note:Decisions whether 2 businesses are similar are subject to guidelines determined by the Minister under section 101.
(2) For the purposes of this Act, the CEO of Austrade must treat particulars of the previous owner as being those of the applicant in the following ways:
…
(c) any grant, or advance on account of grant, paid or payable (whether under this Act or under the repealed Act) to the previous owner in the capacity of owner of the business (or of the relevant part) is to be treated as having been paid, or as being payable, to the new owner;
(d) any other aspect of the business (or of the relevant part) is to be treated as if it had been carried on by the new owner.
Section 97 of the Act relevantly provides:
Reviewable decisions
(1) Each of the following decisions of the CEO of Austrade is a reviewable decision:
…
(c) any decision relating to an application for a grant;
Section 98 of the Act is as follows:
Reconsideration of reviewable decisions
(1) A person who is affected by a reviewable decision may, if dissatisfied with the decision, request the CEO of Austrade to reconsider it.
(2) The request must be made by written notice received by the CEO of Austrade:
(a) within the period of 30 days after the day on which the person first receives notice of the decision; or
(b) within such further period as the CEO allows.
(3) The notice must set out the reasons for making the request.
(4) After receiving the request, the CEO of Austrade must reconsider the decision and may confirm or vary the decision in such manner as the CEO thinks fit.
Note:Section 27A of the Administrative Appeals Tribunal Act 1975 requires applicants to be notified of their review rights.
Section 99 of the Act is as follows:
AAT review of decisions of CEO of Austrade
An application may be made to the Administrative Appeals Tribunal for the review of a decision of the CEO of Austrade that has been confirmed or varied under subsection 98(4).
Section 101 of the Act relevantly provides as follows:
Guidelines
(1) The Minister must determine, by legislative instrument:
…
(d) guidelines to be complied with by the CEO in determining, for the purposes of subparagraph 94(1)(b)(ii), whether a business or a part of a business (the old business) that was carried on by a person is similar to a business (the new business) being carried on by another person to such an extent that the new business should be treated as a continuation of the old business.
(2) The Minister may determine, by legislative instrument, guidelines to be applied by the CEO of Austrade for the exercise by the CEO of any of his or her other powers or functions under this Act.
(3) The CEO of Austrade must comply with the relevant guidelines (if any) determined under this section in exercising any of his or her powers or functions under this Act.
JURISDICTION
On the documentation provided by the parties, including the documents provided by Austrade under s 37 of the AAT Act, the T documents, it was not clear to me what document or documents comprised the decision to be reviewed by the Tribunal. Under

s 99 of the Act (see [20] above) the Tribunal’s jurisdiction is limited to reviewing a decision of the CEO of Austrade that has been confirmed or varied under subsection 98(4). The Applicant in its SFIC claimed that it was advised by a letter dated 3 December 2018 ‘that the Appeal had been unsuccessful, and the original decision upheld’. The Applicant attached the letter dated 3 December 2018 (document 5) from Austrade to its SFIC. For some reason that letter was not included in the T documents produced by Austrade, either the original version of the T documents, or the corrected version of the T documents produced at my request at the hearing.
In the second paragraph of the letter of 3 December 2018 the statement is made that ‘[T]he reviewing officer has upheld the decision…’. Subject to my comments in [25] below, there was not a separate document included in the T documents, or elsewhere, which was obviously a decision by a ‘reviewing officer’.
Further, paragraph 1 the Respondent’s statement provided under s 37(1)(a) of the AAT Act (R1, T3) identified the ‘Review Decision’ as being a decision dated 20 November 2018 by which an ‘Original Decision’ dated 8 November 2018 was affirmed. Paragraph 9 of that s 37 statement lodged by Austrade, however, referred to a request being made on 11 July 2018 by the Applicant to review the ‘Original Decision’ meaning that the ‘Original Decision’ could not have been made on 8 November 2018. Further, by the final paragraph of the
s 37 statement (para. 30) Austrade contended that the Tribunal should affirm ‘the Review Decision made on 30 November 2018’.
The only document that I was able to identify in the T documents bearing a date of 30 November 2018 was the final page of T7 (R1, T7/43), a document that is headed ‘Decision Review Report’ which appears to be an internal Austrade document setting out comments and what could be interpreted as recommendations by a number of Austrade employees.
Accordingly, on 5 December 2019 I directed that the parties provide submissions clarifying what each document or documents contended comprise the decision under

s 98(4) of the Act which the Tribunal can review under s 99 of the Act.
As noted at [15] above, those submissions were received on 20 December 2019
The decision to be reviewed
The Applicant’s submissions of 20 December 2019 identifies that the decision the review of which it seeks is the decision “made on 3 December 2018”. Austrade in its

20 December 2019 submissions identifies the decision being reviewed as being a decision made on 30 November 2018. Austrade’s submissions confirmed that the reference in the s 37 statement to a decision dated 20 November 2018 (see [24] above) was a mistake and should have been a reference to 30 November 2018. No explanation of the reference to “an Original Decision” of 8 November 2018 was provided, however, I assume that this too was a mistake and that the reference to the decision of 8 November 2018 was a reference to the first part of the Decision Review Report (R1, T7/41), a document that appears to have been created over a period with parts being completed on three separate dates, the first of which was 8 November 2018 and that last of which was, apparently, 30 November 2018.
The “decision” for review by the Tribunal identified by Austrade was that set out on the final page of the Decision Review Report (R1, T7/43). That page has a pro-forma “Signed” box which has typed in it “Helene Luetchford”. No actual signature appears on that document. The part of the Decision Review Report apparently completed by Ms Luetchford on 30 November 2018 concludes:
The applicant also raised in the letter that S94 Test 1 should not have been applied and that S94 Test 2 should have been applied. This is incorrect as the sale agreement provided clearly shows the applicant bought a relevant part of the business which was carried on by the applicant business. Test 1 applies and therefore Test 2 need not be considered.
Austrade’s 20 December 2019 submissions advised that the Decision Review Report “does not also purport to be a notification of the decision to the applicant”, which I take as confirming that the Applicant was not provided with that document, at that time at least. That notification was presumably provided by the letter dated 3 December 2018 (Attachment 5 to the Applicant’s SFIC). It is therefore not surprising that, notwithstanding the language of the 3 December 2018 letter (see [23] above), the Applicant identified the decision for review as being the 3 December 2018 letter.
Austrade’s 20 December 2019 submissions explained the confusing language of the

3 December 2018 letter wherein Ms Luetchford refers to “[t]he reviewing officer” having “upheld the decision that Austrade has exercised its discretion under Section 94(1)(b)(i) of the EMDG Act” in circumstances where she was the “reviewing officer” and s 94(1)(b)(i) does not contain any discretion, as being the result of “the use of template letters used by the Respondent”.

In response to my request for submissions on the authority of Ms Luetchford (or whoever the “reviewing officer” was who made the decision) to make a decision on behalf of the CEO of Austrade, remembering that the Tribunal only has jurisdiction to review ‘a decision of the CEO of Austrade that has been confirmed or varied under subsection 98(4)’ (see [21] above), Austrade advised that:
(a)Ms Luetchford was the “section 98(4) decision maker”: and
(b)Ms Luetchford had, because of her position with Austrade, the relevant delegated powers of the CEO of Austrade and provided a copy of the relevant instrument of delegation.
I therefore find that the decision to be reviewed is the decision of Ms Luetchford apparently made on 30 November 2018, the effect of which was to confirm Austrade’s decision made on or about 20 June 2018 as set out in the NOD (R1, T9). I also find that Ms Luetchford had the relevant delegated authority of the CEO of Austrade to make that decision.
Was the original decision a reviewable decision under s 97 of the Act?
At the hearing I raised with the parties, particularly Mr Leerdam, the issue of the Tribunal’s jurisdiction (Transcript at 13-19). I sought submissions from the parties on jurisdiction to be included in the written submissions to be provided by the parties after the hearing (Transcript at 82). The Applicant’s submissions (provided on 1 November 2019) did not address jurisdiction. Austrade’s submissions (provided on 7 October 2019) were as follows:
2 The Respondent accepts that the Tribunal has jurisdiction in this matter.
2.1 The CEO, pursuant to section 98(4) of the EMDG Act, reconsidered and affirmed the ‘reviewable decision’ made at first instance that the Applicant was not a ‘first time applicant’.
2.2 This was by virtue of the fact that the Applicant acquired Bounce Walking Tours (BWT), which had previously been paid a first year grant.
2.3 Accordingly, pursuant to section 94 of the EMDG Act, the Applicant’s eligible expenses were adjusted to $16,686, involving only the expenditure in 2016-2017.
3 The CEO’s confirmation of this decision satisfied the description in section 97(1)(c) of the EMDG Act of being ‘any decision relating to an application for a grant’.
The submissions provided by Austrade did not address the issues that I raised at the hearing (Transcript at 13-19). I also do not think that the submissions correctly interpret the Act.
The Tribunal’s jurisdiction arises under s 99 of the Act (see [20] above). That jurisdiction is limited to reviewing a decision by the CEO of Austrade’s made under s 98(4) of the Act. That decision under s 98(4), firstly, has to be a decision of the CEO of Austrade or, as in this case, someone with the delegated authority to make decisions on behalf of the CEO) and, secondly, must be a decision to either confirm or vary a ‘reviewable decision’ as that term is defined in s 97 of the Act. Paragraph 3 of Austrade’s submission (see [28] above), with respect, confuses a ‘reviewable decision’ for the purposes of s 97 of the Act with a ‘reviewable decision’ for the purposes of the AAT Act. The CEO’s decision under s 98(4) is not a decision which ‘satisfied the description in section 97(1)(c) of the EMDG Act of being “any decision relating to an application for a grant”’ making it a ‘reviewable decision’. The point of defining decisions as being ‘reviewable decisions’ under

s 97(1) of the Act is to qualify such decisions for a request (under s 98(1)) for reconsideration by the CEO (under s 98(4)). The ‘reviewable decision’ as defined in

s 97(1) is the decision that can be reconsidered by the CEO under s 98(4) and either confirmed or varied by the CEO. That decision by the CEO under s 98(4) either confirming or varying the reviewable decision is not a ‘reviewable decision’ for the purposes of

s 97(1); it is, however, a decision amenable to review by the Tribunal under s 99 of the Act.
The first issue in relation to jurisdiction that I had raised at the hearing was whether a decision under s 94 of the Act, which is not specifically identified in s 97(1) of the Act, was a ‘reviewable decision’ under s 97(1) which could then be reconsidered by the CEO under s 98(4) of the Act. Mr Leerdam at the hearing submitted that a decision under s 94 fell under subsection 97(1)(c) as being a ‘… decision relating to an application for a grant’. My concern expressed at the hearing was that, applying the inclusio unius est exclusio alterius rule of construction, the failure to specifically include a decision under s 94 as a ‘reviewable decision’ when so many other sections are specifically identified, gave rise to a construction that a decision under s 94 was not to be included as a ‘reviewable decision’. The other concern was that if subsection 97(1)(c) was to be given the wide interpretation suggested by Mr Leerdam, it would render other subsections of section 97(1) superfluous as, arguably, a number of the sections identified in those other subsections could also be considered to be decisions relating to applications for grants.
Having now had further time to consider the matter I agree with the interpretation posited by Mr Leerdam. On closer examination the sections of the Act specifically identified in the other subsections of s 97(1) relate to matters that would not necessarily relate to or arise as a result of a claim for a grant. Further, the numerous cases relating to s 94 of the Act that have been heard by the Tribunal and by the courts, while they do not specifically address jurisdiction, clearly proceeded on the basis that a decision under s 94 is a reviewable decision under s 97(1) which in turn means that it is subject to reconsideration under s 98 and that decision on the reconsideration is reviewable by the Tribunal under

s 99 of the Act. I therefore agree that a decision under s 94 of the Act is a reviewable decision under s 97(1) of the Act, that is, a decision that can be considered by the CEO under s 98 of the Act.
For the reasons set out in [28] to [38] above, I am satisfied that I have jurisdiction to review the decision of Ms Luetchford apparently made on or about 30 November 2018, the effect of which was to confirm the decision made on or about 20 July 2018 as set out in the NOD (R1, T9).
CONSIDERATION
I refer to the issues for determination identified in [11] above. Both parties identify the central issue as being whether s 94(1)(b) of the Act applies. There are two stages to
s 94(1) relevant to the present case. The first stage is to determine whether there was, at any time, a business (the old business) carried on by a person (the previous owner)
(s 94(1)(a) of the Act). Assuming that that is established, the second stage is then to consider whether either subsection 94(1)(b)(i) or 94(1)(b)(ii) applies.
It does not appear to be disputed by the Applicant that there was a business carried on by a previous owner, in this case, the business was Bounce Walking Tours carried on by
Ms Giglia. I find that to be the case in any event. That having been found, the enquiry shifts to whether either subsections 94(1)(b)(i) or 94(1)(b)(ii) applies.
Section 94(1)(b)(i) – Was the business or part of the business formerly carried on by Bounce Walking Tours (BWT)
It would be fair to say that the NOD (R1, T9/46) is a little confused and, potentially, confusing. It says:
As advised in email dated 15 June 2018, Austrade has assessed the applicant as carrying on similar business activities to that [sic] carried on by “Bounce Walking Tours (BWT)” which received a grant in 2007. The applicant purchased BWT in 2011. In consequence, the grants history of this applicant has been assigned to the present applicant under Section 94 (Tests [sic] 1) of the EMDG legislation, resulting in this claim being assessed as the second year claim for EMDG
While ‘Tests 1’ is not defined in the Act, I assume that this is meant to be a reference to ‘the first test’, as that term is used in the Export Market Development Grants Administrative Guidelines – Part 8 – Miscellaneous (the Guidelines). Paragraph 8.2.1(a) of the Guidelines identifies the first test as applying to subsection 94(1)(b)(i) of the Act. Paragraph 8.2.1(b) of the Guidelines specifies that ‘the second test’, as set out in that subparagraph, applies to subsection 94(1)(b)(ii) of the Act. The use of the term ‘Tests 1’ in the NOD would tend to indicate that in reaching the determination the subject of the NOD, Austrade had applied, or had regard to, the ‘first test’ being that set out in paragraph 8.2.1(a) of the Guidelines.
The only email from Austrade dated 15 June 2018 in the documents before me, and to which I assume that the author of the NOD is referring when he or she refers to an email of that date, is the email that appears in several places in the T documents (R1, T53/227, R1, T54/235-6, R1, T56/245 and R1, T58/257-8). That email notes that, in completing the grant application form, the Applicant had, in answer to the question as to whether it had purchased a business or part of a business, answered ‘No’. The email of 15 June 2018 goes on to advise that:
The business Bounce Walking Tours received a 2007 grant. As the business is in the same industry as the current business Austrade will apply S94, which in short is an inheritance provision. This will result in the following:
1. the current claim is assessed as Year 2; and
2. as a Year 2 claim only the 2016/17 expenses ($19,032) claimed can be considered.
That explanation in the 15 June 2018 email, incorporated by reference into the NOD, appears to confuse considerations relevant to subsection 94(1)(b)(i), and the first test set out in paragraph 8.2.1(a) of the Guidelines, with considerations which arise under subsection 94(1)(b)(ii) and the second test set out in paragraph 8.2.1(a) of the Guidelines. Similarly, the NOD itself, while it referred to ‘Tests 1’, also referred to similarities in the business activities carried on, a concept relevant to subsection 94(1)(b)(ii) and the second test rather than subsection 94(1)(b)(i) and the first test.
At paragraph 2 of Austrade’s SFIC the following statement is made under the heading ‘Background’
2. The applicant applied to the Administrative Appeals Tribunal (AAT) seeking review of a decision of the Respondent…dated 3 December 2018. The delegate of the … (CEO) confirmed the original decision [NOD] to apply section 94(1)(b)(i) of the … (EMDG Act):
2.1 The Applicant carried out [sic] a business similar to that of the acquired business Bounce Walking Tours…which received a first grant in 2007
The above statement is, likewise, confused as it applies the test under subsection 94(1)(b)(ii) i.e. carrying on a business that ‘is similar to the old business’, in making the determination that the Applicant came within the operation of subclause 94(1)(b)(i), the test for which is that the Applicant ‘carries on…the business or part of the business’ (i.e. the old business).
In its closing submissions (para. 1.2) Austrade specifies that it relies on subsection 94(1)(b)(i) and ‘Test 1’ (the ‘first test’ set out in paragraph 8.2.1(a) of the Guidelines). No reference is made in Austrade’s closing submissions to s 94(1)(b)(ii) or ‘Test 2’. At the hearing I had sought from Mr Leerdam clarification of the basis of Austrade’s case was; that is, was it Test 1 or Test 2 or both? Mr Leerdam advised that Austrade’s ‘primary’ case was that s 94(1)(b)(i) and Test 1 applied (Transcript at 21). I also note the statement in the 30 November 2018 document of Ms Luetchford that ‘Test 2’ need not be considered (see [29] above).
However, Austrade’s SFIC, which in its closing submissions Austrade states that it still relies on (para. 1.1), argues the applicability of both subsections 94(1)(b)(i) and 94(1)(b)(ii) and both ‘Test 1’ and ‘Test 2’.
In any event, presumably because of the way that Austrade had previously explained its decision, the Applicant structured a lot of its submissions and arguments to resist the application of subsection 94(1)(b)(ii) and the ‘second test’ under the Guidelines as well as s 94(1)(b)(i) and the ‘first test’ under the Guidelines. I have taken that into account in considering the Applicant’s arguments. It is also the case that there is, to a degree, an overlap of considerations and evidence in assessing whether either subsection applies. To determine whether the old business, or part of the old business, is (or was on Austrade’s argument) being carried on by the new owner, the similarities in the operations must be a relevant consideration. In making that comment I am mindful of Cowdroy J’s warning in Australian Trade and Investment Commission v Isaac Jewellery Pty Ltd [2009] FCA 37 not to conflate the matters to be considered under ss 94(1)(b)(i) and 94(1)(b)(ii) (see Cowdroy J at [15], [29]-[34]).
In relation to the applicability of s 94(1)(b)(i), the Applicant’s argument is that it did not carry on the business that it purchased, or at least that it did not carry on any part of that business at what it says is the relevant time, namely, in the grant years for which claim is made. It is not disputed by the Applicant that in June 2011 it purchased Bounce Walking Tours from Ms Giglia for $30,000. The first paragraph of the agreement by which that purchase occurred (R1, T17/81) was as follows:
I refer to our ongoing negotiations in connection with the sale of the assets and business entitlements owned by Rebecca Giglia (X) used in Bounce Walking Tours (Business). This agreement sets out the terms on which Two Feet and a Heartbeat Pty Ltd (Y) and Rebecca Giglia will conclude the sale and purchase of those Assets and the Business.
(Original emphasis.)
The agreement set out in Schedule 1 the assets that were purchased. They included:
·Business Name
·Intellectual Property
oAll intellectual property relating to the provision of goods and services of Bounce Walking Tours, including tour and activity content, routes, descriptions and supplier information
·Brand & Design
·Online Presence
·MYOB AccountRight Plus Software
·12 new, branded polo shirts
·Portable Speaker
·A Samsung SCX-42F multi-functional laser printer
·1300 brochures and promotional material.
The Applicant says in its SFIC that:
·The business name was not renewed in 2011 and was cancelled in December 2011
·Brand and design were never used
·The BWT ‘website, domain, emails and management system were only used to honour existing bookings’ (para. 3.iv of SFIC)
·The polo shirts were never used
·Mr Mossny cannot remember receiving the portable speaker but that the Applicant does not use speakers anyway
·The laser printer was given away
In relation to the Applicant having carried on the business purchased in June 2011, the Applicant in its SFIC (confirmed by its director Mr Mossny under oath) says that:
·As of January 2012 BWT was completely closed down. Anything relating to the BWT business was no longer in use (page 7, para. 15)
·The business name purchased was not renewed in 2011 (page 6, para. 3.i)
·By the time the 2016/17 grant application was submitted none of the intellectual property that was received as part of the sale was in use. All of the tours and activity content, routes, descriptions and suppliers were discontinued and no longer used. Only one tour had a similar name. This tour was significantly different in content, route, timings, frequency suppliers and guides leading the tour. See T-Docs T47 pages 207-209 (page 6, para. 3.ii)
·Brand a design/logo purchased were never used (page 6, para. 3.iv)
·Polo shirts, speaker and printer purchased were never used (page 6, para. 3.v-vii)
·By January 2012 BWT web domain and all websites associated with Bounce Walking Tours closed (page 7, para. 13)
·By January 2012 Bounce Walking Tours had completely closed and anything relating to Bounce Walking Tours was no longer in use (page 7 para. 15)
Austrade’s argument on the applicability of s 94(1)(b)(i) of the Act appears to have two elements. The first is that, relying to a significant degree on Deputy President Constance’s decision in Allmaster Software Pty Ltd and Australian Trade and Investment Commission [2019] AATA 506 (Allmaster), and what it says is the proper construction of the Act, all that Austrade needs to establish is that at some time the Applicant carried on the old business or part of the old business.
The second element, although not clearly articulated, appears to be that one particular part of the old business, namely the Crimes and Passion Tour in Kings Cross, was carried on by the Applicant for an extended period. While I understand that Austrade raises this particular tour, in relation to which Mr Mossny was cross-examined at length, in support of its argument for the applicability of s 94(1)(b)(i), for reasons that are set out later herein, this tour may also be relevant to any argument that the business carried on by the Applicant is sufficiently similar to the old business for s 94(1)(b)(ii) to apply.
Austrade’s argument as set out in its SFIC, and largely repeated at the hearing and in its closing submissions, is as follows:
7.2…the Applicant's arguments, at various points, erroneously conflate Tests 1 and 2 (see Australian Trade Commission v Isaac Jewellery Pty Ltd [2009] FCA 37 at [32]) and it is necessary for the AAT upon review to ask and answer the right question. In other words, to distinguish between whether the new owner is carrying on the business or part of the business (Test 1) or whether an investigation of the similarities between the old business and the new business is required (Test 2).
7.3…the focus of Test 1 (which the Respondent contends applies here) only requires a consideration of the facts 'at a later time' to the previous ownership by BWT and 'there is no requirement for the business to be carried on for any particular period of time' (see Allmaster Software Pty Ltd and Australian Trade and Investment Commission [2019] AATA 506 at [23]-[25] (Allmaster)
8. In relation to Test 1, the Applicant (see ASFC [8]), confirms that it had carried on the relevant part of BWT's export oriented business after purchasing it. This was foreshadowed in the contract of purchase7 and also corroborated by the publicly available information after the time of purchase.
8.1 It is relevant to consider the 'business arrangement' entered into under the contract for purchase, so as to ensure that the Applicant could carry on the new business. The contract for purchase also refers to the assets acquired by the Applicant including the logos, website, marketing collateral, business name and the 1300 number. Importantly, there was a pending arrangement to provide historical tours to retail customers.
8.2 The fact the Applicant subsequently sold the BWT business in 2017 is irrelevant to the facts required to be considered and the application of section 94 of the EMDG Act in the relevant grant year (see generally Troozi Pty Ltd and Australian Trade and Investment Commission [2018] AATA 4360).
9. The Respondent contends that pursuant to section 94(1)(b)(i) of the EMDG Act, the evidence clearly establishes that 'at a later time', being immediately after the Applicant's purchase of BWT, it carried on the relevant part of BWT's business (the old business) being the walking tours.
10. In Allmaster at [23]-[24], DP Constance stated:
23. Although marketing of the Quisine product continued for only a short period after the Applicant’s purchase of the business, this is sufficient to meet the requirements of subsection 94(1). The subsection requires only that the business be carried on “at a later time” to the time in which it was carried on by the previous owner; there is no requirement for the business to be carried on for any particular period of time.
24. Having decided that the Applicant carried on the Quisine business after it was purchased from the previous owner, and it being accepted that the Applicant thereafter applied for a grant in respect of the 2014-2015 grant year, the requirements of subsection 94(1) are satisfied. Subsection 94(2) therefore applies.

At the hearing I raised with Mr Leerdam the suggestion that Austrade’s argument, and, possibly, Deputy President Constance’s construction of the operation of s 94(1)(b)(i) in Allmaster, was inconsistent with the Guidelines. In relation to the standing of the Guidelines, at paragraph 16 of Austrade’s s 37 statement (R1, T3 /18) Austrade asserts that the Guidelines are not binding on the Tribunal. No authority for that proposition is cited by Austrade. I assume, however, that Austrade’s argument is that unlike the Ministerial guideline issued by Minister Ciobo on 22 June 2016 (A1) (the Ministerial Guideline) relating to the operation of s 94(1)(b)(ii), there is no legislative instrument issued by the Minister relating to the operation of s 94(1)(b)(i). The Guidelines are more in the nature of a statement of administrative policy and are not issued by the Minister under s 101(2) of the Act. Section 101(1)(d) of the Act provides that the Minister must (my emphasis) determine, by legislative instrument, guidelines to be complied with by the CEO in making a determination under s 94(1)(b)(ii), presumably hence the Ministerial Guideline, while s 101(2) of the Act provides that the Minister may (my emphasis) by legislative instrument issue guidelines ‘to be applied by the CEO of Austrade for the exercise by the CEO of any of his or her powers or functions under the Act’. No such legislative instrument has been issued by the Minister.
The status of policy guides has been considered in a number of proceedings in the Tribunal. Senior Member Dr M Evans considered the status of policy guides issued by the Department of Social Services in the matter of Ferreira and Secretary, Department of Social Services [2018] AATA 1290. She observed:
[46] The Guide to Social Security Law (the Guide) is a policy which, among other things, provides clarification (at para 4.3.8.30) as to the expenses which are permissible or impermissible for the purpose of calculating income under the Act. With respect to whether the Tribunal should apply policy, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)), Brennan J stated at 642:
In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
In that case Senior Member Dr M Evans applied the policy; see also Kang and Secretary, Department of Social Services [2019] AATA 758.
As to why Deputy President Constance did not refer to the Guidelines in Allmaster,

Mr Leerdam, who also appeared as counsel in that matter, advised that at the time of the hearing of that matter in March and April 2018 the Guidelines had not been issued (Transcript at 82). The Guidelines are dated July 2018. Mr Leerdam also advised that the primary issue that Deputy President Constance was considering in Allmaster was the meaning of the phrase ‘at a later time’ as that phrase is used at the beginning of s 94(1)(b) and that paragraph 8.2.1(a) of the Guidelines provides no guidance as to how that phrase is to be construed.
I note that, in any event, Austrade in its SFIC refers extensively to the Guidelines, which, by paragraph 8.2.1(a) provide guidelines for the CEO making a determination under

s 94(1)(b)(i), the first test. The NOD itself refers to “Tests 1” in coming to the conclusion that s 94(1)(b)(i) applied (see [43 above) so clearly Austrade considers the Guidelines to be relevant. That Guideline, which in my view correctly reflects the intent and effect of

s 94(1)(b)(i), is as follows:
Does the new owner carry on a business which is a continuation of the business, or part of the business, carried on by the previous owner, even though it is being carried on by a different person?
Under s 94 of the EMDG Act, the Ministerial Guidelines should not be used in the first test. This test does not require Austrade to measure similarities but rather, to determine whether the new business is the same as the old business or part of it.
The first test requires Austrade to determine whether the business being carried on by the new owner is the business (or part of the business) which had been carried on by the previous owner; or put another way, the business being carried on by the new owner is a continuation of the business (or part of the business) carried on by the previous owner.
If the answer is “yes”, then section 94(2) of the EMDG Act applies.
(my emphasis)
The critical aspect of Guideline 8.2.1(a) is the repeated use of the present tense in referring to the new owner’s, that is, the Applicant’s, business. That, in any event, is totally consistent with the language of s 94(1)(b) which refers to ‘another person (the new owner) carries on…the business’.
Accordingly, irrespective of the standing of the Guidelines, and irrespective of whether I am ‘bound’ by them, I find that the plain and ordinary meaning of s 94(1)(b)(i) is that the new owner’s business must be a business that is being carried on, not a business that was at some time prior to the relevant grant year carried on by the new owner.
That construction is also consistent with the intent of the Act as expressed in the Explanatory Memorandum relating to the Export Market Development Grants Bill 1997 which explained the basis of s 94 in the following terms:
Clause 94. Specifies the circumstances where the change of ownership of a business provision applies. Specifies that the sale or transfer of a business… whereby a business previously carried on by ‘one’ person is now carried on by another person…
(my emphasis)
Further, the construction of s 94(1)(b)(i) argued by Austrade would, in my view, render a result that could not have been intended by the Act. Austrade’s argument is that if the new owner has, at any time, even as in this case four or five years before the relevant grant year, carried on, albeit for only a matter of months, a business, or part of a business, that had been the subject of a grant when owned by a previous owner, then that grant to the former owner, in respect of a business that is not being carried on by the new owner, is to be treated as being a grant to the new owner. Such a construction would mean that the new owner, irrespective of the business that he is now carrying on, would always be treated as already having received a grant. That cannot have been the intent of the Act and, as I have found above, is in any event, contrary to the language of the section.
I do not accept Austrade’s argument that because the Applicant carried on the old business, or part of the old business, for a short period after it purchased the business in 2011, the grant received by the previous owner in 2007 is, by operation of s 94(1)(b)(i) and s 94(2)(c), to be treated as having been received by the Applicant for the purposes of assessing a claim for grant years 2015-2016 and 2016-2017. In order for a grant paid to a previous owner to be treated as having been received by a new owner under those provisions, the new owner must be carrying on the old business, or part of the old business, in the grant year for which it is claiming a grant. I accept the Applicant’s evidence that, in effect, by early 2012 it was not carrying on any part of the business that it had purchased in 2011.
Section 94(1)(b)(ii) – Is the business similar to the old business or part of the old business to such an extent that it should be treated as a continuation of the old business?
As noted above, by the time Austrade made its closing submissions, it primarily relied in
s 94(1)(b)(i). However, as also noted above, in its closing submissions Austrade stated that it continued to rely on its SFIC which, relevantly, outlined its argument under s 94(1)(b)(ii) as follows:
11. In relation to Test 2, the Respondent contends that, in any event, the consideration of section 94(1)(b)(ii) of the EMDG Act (raised by the Applicant as the test that should be applied), should have the result that it also applies to the Applicant:
11.1 The products of both businesses, the relevant part, are the walking tours which are similar in concept (if not identical in their detail) as between the old and new businesses.
11.2 Both businesses carry on similar activities, being the promotion and provision of walking tours.
11.3 Rebecca Giglia, the recipient of BWT's first grant, was formerly associated with the Applicant. Colin Hyde, the Sydney manager of BWT, continued in his employment with the Applicant after the purchase of BWT.
11.4 The BWT walking tours continued after the Applicant's purchase of BWT in 2011. See for example the 'Crimes and Passions' walking tour which appears in TripAdvisor.com reviews from 2011-201718.
Austrade refers to the Ministerial Guideline and then identifies a number of cases as illustrating the proper construction of Test 2, which I assume to be a reference to the ‘second test’ as set out in paragraph 8.2.1(b) of the Guidelines. I note that paragraph 8.2.1(b) of the Guidelines directs the decision maker to take into account the ‘Ministerial Guideline EMDG (Change of Ownership) Guidelines 2006’. It is not clear why the Guidelines issued in July 2018 refer to a ministerial guideline dated 2006 rather than the Ministerial Guideline of 2016 which revoked the ministerial guidelines of 2006. However, paragraph 8.2.1(b) of the Guidelines, however, sets out the 2006 ministerial guideline which is materially the same as the Ministerial Guideline. The Ministerial Guideline is as follows:
(1) In determining, for the purposes of subparagraph 94 (1) (b) (ii) of the Export Market Development Grants Act 1997, whether a business or a part of a business (the old business) that was carried on by a person is similar to a business (the new business) being carried on by another person to such an extent that the new business should be treated as a continuation of the old business, the CEO of Austrade must comply with these Guidelines.
(2) In determining whether the new business is similar to the old business, the CEO of Austrade must have regard to the similarities (if any) and the differences (if any) between:
(a) the product of the new business and that of the old business; and
(b) the activities that are carried out in the course of the business of the new business and the activities that were carried out in the course of the old business; and
(c) the customers, including the export market customers, of the new business and those of the old business; and
(d) the directors, shareholders, and management personnel of the new business and those of the old business; and
(e) the suppliers to the new business and those to the old business; and
(f) the overseas representatives of the new business and those of the old business; and
(g) the employees of the new business and those of the old business; and
(h) the markets, including the export markets, of the new business and those of the old business; and
(i) the premises from which the new business is conducted and the premises from which the old business was conducted; and
(j) the logo of the new business and that of the old business; and
(k) the property and assets, including the intellectual property, of the new business and those of the old business.
Austrade contends that although the ‘relevant part’ of the old business carried on by the Applicant was ‘significant’, it need not be so in order to satisfy the test. In support of that contention Austrade cites Deputy President Tamberlin’s decision in Nysan and Asia Pacific Pty Ltd and Australian Trade Commission [2015] AATA 208 (Nysan). At [49] Deputy President Tamberlin identified the ‘relevant part’ as comprising the common link, being that:
… during the relevant seven grant year periods in respect of which Turner received substantial export grants totalling over $429,000 it also carried on as part of its business the promotion and marketing overseas of some of the Applicant’s products.
(Austrade’s emphasis)
In my view Deputy President Tamberlin’s decision in Nysan does not assist Austrade in this case. In Nysan Deputy President Tamberlin went through each of the 11 matters that the 2006 Guidelines identify, which, as noted above, are materially the same as the Ministerial Guidelines (see [69] above) to come to the conclusion that:
…the export business of the Applicant is similar to part of the export business of Turner to such an extent that I am satisfied that the applicant’s business should be treated as a continuation of the Turner business
In the case of the Nysan a significant number of those 11 factors indicated that the claimed new business was, in effect, the same business that had been operated for many years. Mr Turner, the director of the new company, Nysan, had been, and remained, a director of Turner Bros Group, the company running the existing business as it had done for some 50 years. The products were essentially the same. The export strategy of the new company had been developed by the existing business over two and a half years by someone who was then employed by and took a 20 percent stake in the new business. Deputy President Tamberlin therefore found as he did at [49] of his decision (see [70] above) and went on to therefore find:
…Therefore the activities for which the Applicant now seeks grants can properly be characterised as the carrying on of a business which is sufficiently similar to part of the business carried on by Turner, namely the marketing of the Applicant’s products overseas, to such an extent that the CEO of Austrade should be satisfied that the export business presently carried on by the Applicant should be treated as a continuation of part of the business previously carried on by Turner.
As well as finding that the products were in effect the same, Deputy President Tamberlin also found that the activities of the two businesses were ‘substantially similar’ (at [52]), that the customers targeted by the new business were effectively the customers who had been targeted by the old business (at [53]), that there was a common director and that the effective control of both businesses was with the same two brothers (at [54]), that the suppliers to both businesses were the same (at [55]), that, although the markets may be different ‘to some extent’, there was ‘no basis to find that they did or will not overlap’ (at [56]), the premises from which the two businesses operate were in the same suburb (at [59]), that while the logos of the two businesses were different, ‘they appear together on a number of promotional documents’ and that there was a ‘juxtaposition or association of the logos on marketing documents’ (at [60]) and that, in relation to the assets of the businesses, although they were held by different corporate entities, ‘the ultimate control of both’ entities were within the power of the same people (at [61]). It was because of all of these factors that Deputy President Tamberlin concluded that there were similarities ‘to such an extent that I am satisfied that the Applicant’s business should be treated as a continuation of the Turner business’.
In my view the same cannot be said of the business of the Applicant as it operated in the grant years for which claims are made and the business that the Applicant bought from Ms Giglia in 2011.
Austrade also refers to the decision of Senior Member (as he then was) McCabe in Amlink Technologies Pty Ltd and Australian Trade Commission [2005] AATA 359 at [66]:
I accept the products of the company have evolved to the point where they are clearly superior in terms of functionality and technically different. However both businesses developed and sold (or develop and sell) event management software. One has evolved from the other and become bigger, better and different in the process – exactly the result intended by the EMDG scheme.
Again, I cannot see how that case assists Austrade in this matter. That was a case dealing with development of software and whether, although it was conceded by the applicant in that case that (at [53]):
…some of the concepts, ideas and intellectual property in Events for Windows have “migrated” into Events Pro, and some of the “core functionalities” are the same. Even so, Mr Gardiner says Events Pro is a much more sophisticated product aimed at a more sophisticated market. He points out Events Pro uses a different programming language, is much bigger and contains more database fields and indices.
The developed product could be considered to, in effect, be the same product marketed by the former business which had received grants, or was a completely different product as argued by the applicant. In the end, Senior Member McCabe came to the conclusion that on the basis of that indicator and the others identified in the then applicable Ministerial guidelines, it was appropriate to treat the new business as a continuation of the old business. The indicia examined by Senior Member McCabe at [53]-[64] of his decision are the same 11 matters identified in the Ministerial Direction.
Looking then at each of the matters to be taken into account under the Ministerial Direction in determining whether a new business is similar to an old business, I find:

(a)The product
The Applicant argues that the product that it marketed during the relevant period was, in effect, a development of the product that it had developed and marketed in Western Australia for a number of years before opening its operations in Sydney. I accept the Applicant’s evidence that effectively the operations of Bounce Walking Tours which were limited to Sydney, ceased by the first quarter of 2012. Insofar as the Applicant continued to market a Crimes and Passion walking tour, I accept that while the name of the tour remained similar, the actual product was sufficiently different to that previously offered by Bounce Walking Tours that it could not be treated as a continuation of the old business, either on its own account or when considered in conjunction with the other indicia under the Ministerial Direction.

(b)The activities
While on one view it could be considered that one walking tour is very similar to any other, read sensibly paragraph 4(2)(b) of the Ministerial Guideline must require the decision maker to look at the detail, not just the general type of the activities carried out in the course of the business. In the present case the Applicant’s evidence did point out differences in the detail of the various tours, including the differences between the Crimes and Passion tour conducted by Bounce Walking Tours and that conducted by the Applicant in the 2015-2016 and 2016-2017 grant years. While generally the activities of the two tours are similar, the same could probably be said of any number of walking tours conducted by various operators. That does not, in my view, make the activities so similar that it could be said that a latter operated tour ‘should be treated as a continuation of the old business’.
(c)The customers
While it could be said that, in one sense, the target customers are the same in that they are primarily tourists, that is consistent with the product or activities qualifying to an export development grant. More specifically, the aim, as disclosed by the evidence of Mr Mossny, was that he wanted to shift the target market to that of the Applicant’s Perth business, namely more tourists rather than regional and local school groups. The intention was only to honour the bookings that existed at the time of the purchase of the business in 2011 which were mainly school groups, and then to target the North American and near Asian markets (Transcript at 33).
As with a number of the other matters that the Ministerial Guideline identifies for consideration, if there are similarities between businesses, they are not similarities between the business formerly run by Bounce Walking Tours and the Applicant, but rather between the walking tours business run by the Applicant in Perth and the new business run in Sydney after the purchase. I accept the Applicant’s evidence that the target market for its tours was different to that of Bounce Walking Tours.

(d)The directors/shareholders/management
The directors and shareholder of the new company were different to those of the old company. While there was some overlap of staff, they were not controlling the operations and the overlap was for a short time only.
(e)Suppliers
Given the nature of the business, it is unlikely that this factor would be relevant, but in any event, as far as the evidence discloses, there were no common suppliers.
(f)Overseas representatives
As far as I am aware, Bounce Walking Tours did not have any overseas agents. When the Applicant purchased the business it looked to bring the Sydney operations under the international Urban Adventures umbrella under which the Perth operations had been operated (Transcript at 32). This expansion or change to the business and marketing model for the Sydney walking tours in fact indicates to me a marked difference in the old business and the new business. This consideration indicates that the new business should not be treated as a continuation of the old business. If anything it is an expansion of the pre-existing Perth business.
(g)Employees
While there was a minor overlap of one employee (Mr Colin Hyde) during a handover period, the evidence was that the tour guides were terminated and new guides contracted after the purchase of the business (Transcript at 35). Mr Mossny was cross-examined at some length on whether a Mr Kim Knuckey, who was employed by Bounce Walking Tours, was also employed by the Applicant. While it may have been the case, the fact that a casual employee of the former business may have also ended up as an employee of the Applicant is not sufficient for the business operated by the Applicant in the relevant years to be treated as a continuation of the existing business. The wholesale takeover of the workforce would obviously be indicative of the old business continuing to operate, however I do not think that the intent of the Ministerial Guideline is to make one or two employees being employed in the new business an indicator that the same business is being continued. As with all of the indicia set out in Ministerial Guideline, the factors are only to assist the decision maker in determining whether the new business should be treated as a continuation of the old business. Even if some of the elements of consideration are met, they still have to be sufficient, in total, for the new business to be treated as a continuation of the old business. It is a question of sufficiency of degree of the various factors for the treatment of the new business to be treated as a continuation of the old business.
This factor does not, in my view, indicate that the new business is a continuation or should be treated as a continuation of the old business.
(h)Markets including export
For the reasons set out in considering factor (c) above, this consideration weighs against treating the new business as a continuation of the old business. It seem on the evidence of Mr Mossny that a significant business consideration in the Applicant purchasing the Bounce Walking Tours business was that the new business would be pitched to a different, an international market through, amongst other things the global Urban Adventures marketing group.
(i)The premises
Mr Mossny’s evidence, which was not contested, was that the new business never operated from the address of the former old business (Transcript at 60).
(j)The logo
The evidence was that the logo of the old business was never used by the Applicant (see [54] above).
(k)Property and assets
The evidence was to the effect that the property and assets, including the intellectual property, were either only used for a very short time or not at all. I find that they were not being used in the relevant period, namely the period of the 2015-2016 and 2016-2017 grant years (see [54] above).

For the reasons set out in [68] to [77] I find that the business operated by the Applicant is not similar to the old business, or part of the old business, to such an extent that it should be treated as a continuation of the old business.
CONCLUSION
For the above reasons I conclude that:
(a)The business carried on by the Applicant in the relevant period was:
(i)not the business, or part of the business, carried on by the previous owner of Bounce Walking Tours; and
(ii)was not similar to the old business, of part of the old business, carried on by the previous owner to such an extent that it should be treated as a continuation of the old business.
(b)And that, accordingly, neither s 94(1)(b)(i) nor s 94(1)(b)(ii) of the Act applies to the Applicant.
DECISION
The decision under review is set aside and the matter is remitted to Austrade for reconsideration with the direction that section 94(2) of the Act does not apply to the Applicant.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...........................[sgd].............................................
Associate
Dated: 24 December 2019

Date of hearing: 6 September 2019

Applicant: Self-represented

Counsel for the Respondent: Mr L Leerdam

Solicitors for the Respondent: DLA Piper

Date of hearing:	6 September 2019
Applicant:	Self-represented
Counsel for the Respondent:	Mr L Leerdam
Solicitors for the Respondent:	DLA Piper