Uniden Australia Pty Ltd v Collector of Customs
[1997] FCA 285
•22 APRIL 1997
CATCHWORDS
ADMINISTRATIVE LAW - Customs duties - application for refund of Customs duty - whether applicant obliged to obtain the permission of the Collector of Customs to withdraw its application - right of party to withdraw from proceedings considered.
Customs Act 1901 (Cth) - s 163
Judiciary Act 1903 (Cth) - s 39B
Administrative Appeals Act 1975 (Cth) - s 44
Customs Regulations - regs 126, 127, 128A, 273GA
Customs Act 1901
s 39B of the Judiciary Act 1903 (Cth)
s 44 of the Administrative Appeals Tribunal Act 1975
Re Queensland Nickel Management Pty Limited v Great Barrier Reef Marine Park Authority (1992) 16 AAR 319
Hanson v London Rent Assessment Committee; R v London Rent Assessment Committee; Ex parte Hanson [1976] QB 394
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307
Lehtovaara v Commission of Patents (1981-2) 39 ALR 103
UNIDEN AUSTRALIA PTY LTD v COLLECTOR OF CUSTOMS
No. NG 736 of 1995
CORAM: FOSTER J
DATE: 22 APRIL 1997
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 736 of 1995
)
GENERAL DIVISION )
BETWEEN:UNIDEN AUSTRALIA PTY LTD
Applicant
AND:COLLECTOR OF CUSTOMS
Respondent
JUDGE MAKING ORDERS: FOSTER J
DATE: 22 APRIL 1997
PLACE: SYDNEY
MINUTE OF ORDERS
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The notice of motion seeking leave to apply under s 39B of the Judiciary Act 1903 be dismissed.
3.The applicant pay the respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 736 of 1995
)
GENERAL DIVISION )
BETWEEN:UNIDEN AUSTRALIA PTY LTD
Applicant
AND:COLLECTOR OF CUSTOMS
Respondent
CORAM: FOSTER J
DATE: 22 APRIL 1997
PLACE: SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR: The Court has before it appeals under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from two decisions of a senior member of the Administrative Appeals Tribunal ("the AAT") given on 30 August 1995. The decisions were given in respect of AAT matters N95/62 and N95/1195. These appeals are, necessarily, restricted to questions of law (s 44(1) AAT Act). Additionally, the applicant has by notice of motion sought leave to bring proceedings against the respondent under s 39B of the Judiciary Act 1903 (Cth) seeking declaratory and other relief in respect of the subject matter of the appeals. The granting
of such leave was opposed by the applicant. I shall deal with this question later in these reasons.
Before dealing with the questions raised in the appeals, it is necessary that I set out matters of background.
The applicant ("Uniden") is an importer of cellular telephones. At all relevant times Connor Anderson Customs Pty Limited ("CAC") acted as its customs agent in its dealings with the respondent ("the Collector"). As the case concerns applications for refunds of customs duty paid by Uniden, it is convenient to set out the sections of the Customs Act 1901 (Cth) ("the Act") and regulations made under the Act which have been referred to in argument.
Section 163 of the Act provides for refunds of duty as follows:-
"163. (1) Refunds, rebates and remissions of duty may be made:
(a)in respect of goods generally or in respect of the goods included in a class of goods; and
(b)in such circumstances, and subject to such conditions and restrictions (if any), as are prescribed, being circumstances, and conditions and restrictions, that relate to goods generally or to the goods included in the class of goods.
(1a) The regulations may prescribe the amount, or the means of determining the amount, of any refund, rebate or remission of duty that may be made for the purposes of subsection (1).
(1b) A Collector shall refuse to consider an application for a refund of duty paid in respect of goods if:
(a)the goods are not goods in respect of which the same entry has been given under section 68 and subsection 71A(7); or
(b)the fee payable under subsection (1c) in respect of the application has not been paid.
(1c) Subject to subsection (1d), a fee of $200, or, if a higher amount is prescribed, that higher amount, is payable in respect of an application made after 13 May 1987 for a refund of duty paid in respect of goods.
(1d) A fee is not payable under subsection (1c):
(a)in the circumstances specified in paragraph 126 (a), (b), (c), (d), (f), (g), (ga), (h), (j), (k), or (m) of the Customs Regulations as in force at the commencement of this subsection;
(b)where an officer assisted in making up the entry in respect of which the application for a refund of duty is made;
(c)where an officer assessed the duty payable;
(d)where the duty was paid under protest;
(e)where the duty was paid as a consequence of advice given, or a ruling made, by an officer;
(f)where all duty amounts were paid in good faith;
(g)where the overpayment of duty was beyond the control of the applicant for the refund; or
(h)in such other circumstances as may be specified in the regulations.
(2)In this section, `duty' includes an amount paid to a Collector in respect of duty that may become payable."
Regulation 126 prescribes the circumstances under which refunds are made, so far as relevant, as follows:-
"126. (1) Each of the following circumstances is prescribed for the purposes of section 163 of the Act, namely where:
...
(e)duty has been paid through manifest error of fact or patent misconception of the law;
...
(f)after duty has been paid on goods, a by-law or determination is made under Part XVI of the Act, or a Commercial Tariff Concession Order is made under Part XVA of the Act, the effect of which is that duty is not payable on those goods or duty is payable on those goods at a rate which is less than the rate which was applicable when the goods were entered for home consumption:
...
(r)duty has been paid on goods at a time when a TCO, made in respect of those goods under Part XVA of the Act, is in force or is taken to have come into force;
..."
Further relevant requirements are prescribed in the following regulations:-
"127. (1) A refund of duty shall not be made unless an application for the refund in accordance with regulation 128 is delivered in accordance with that regulation within the period within which that application may, by virtue of regulation 128A, be made.
...
(1) For the purposes of section 163 of the Act, an application for a refund ... must:
(a)be in an approved form or in an approved statement; and
(b)contain such information as is required by the form or statement; and
(c)be signed in the manner specified in the form or statement; and
(d)have with it the fee payable in respect of the application; and
(e)be given to a Collector.
...
128A. (1) An application for a refund of duty:
...
(4B) An application for a refund of duty in a circumstance specified in paragraph 126(1)(r) may be made within 12 months after the date on which:
(a)the particular goods were entered for home consumption; or
(b)the TCO was gazetted under section 269R of the Act ...
which ever happens last."
Review by the AAT of refund decisions is provided for by s 273GA of the Act as follows:-
"273GA. (1) Subject to this section, applications may be made to the Administrative Appeals Tribunal for review of:
...
(haaa) a decision of a Collector under section 163 in relation to an application for a refund, rebate or remission of duty;
..."
On 20 February 1992 CAC made application to the Collector on behalf of Uniden for a refund of customs duty paid in respect of all cellular telephones imported by Uniden since 25 August 1989, on the basis that the goods complied with the terms of Tariff Concession Order (TCO) 8906970. Its letter was in the following terms over the signature of Mr Morley, a consultant employed by CAC:-
"This is an application for refund of Customs duty paid by Uniden Australia Pty Ltd on cellular telephones.
The grounds for this refund are that the goods comply with the terms of TCO 8906970 of 85/132, operative date 25/8/89, dec. 25/2/91.
This claim is made under Regulation 126(F).
Application for refund is made for all Cellular Telephones imported by our principal since the operative date of the TCO, being 25/8/89.
We have attempted to obtain details of the entries/ shipments/Customs duty/refund amounts, etc, however, are unable to do so as all relevant documents are held by the Australian Customs Service.
Our understanding, at this time, is that the Investigative Branch has the documents and a Mr L Madden is in control of this matter for the ACS.
As soon as practical, these details will be forwarded to enable these refund applications to be processed."
The evidence indicates that this letter was sent because in the opinion of CAC there was a reasonable basis for asserting that the imported cellular telephones were covered by the provisions of the TCO. The application was made in some haste as the time for its making was to expire within a week. In conjunction with this application for a refund, CAC had also, on 17 February 1992, lodged an application for a Tariff Advice with the Collector inquiring whether the cellular telephones were entitled to the benefit of TCO 8906970. CAC did not have the necessary supporting documentation which, as appears from the letter, was then in the possession of the Collector. Because of the absence of these documents the application could not be made in standard form in accordance with reg 128. This problem was discussed between Mr Morley and Mr Ellem, Senior Inspector of Refunds, who was satisfied, in the circumstances, to treat the application by letter as a "pro forma" application.
Mr Ellem endorsed his acceptance in manuscript on the letter of 20 February and sent a copy of the letter with the endorsement to Mr Morley. The endorsement read as follows:-
"Accepted as an application for refund vide under Customs Regulation 128 and within the time constraints of Customs Regulation 128A. Refunds to be lodged on appropriate form Nature 12 or 32."
On 2 March 1992 Mr Ellem sent a further letter to Mr Morley in the following terms:-
"Dear Sir,
Reference is made to your letter dated 20 February 1992 on behalf of your client Uniden Australia Pty Ltd regarding application for refund of Customs duty.
The circumstance for such applications is based on Customs Regulation 126(1)(f) being that the goods comply with the terms of TC 8906970, reference 85/132, operative date 25/8/89 - declared date 25/2/91.
The application for refund of duty has been accepted within the terms of Customs Regulation 128 and subject to the lodgement of formal applications within in [sic] the prescribed time constraints of Regulation 128A.
I note that the main reason for the application in this form is that the original documentation is held by the Investigations Branch. I have contacted Mr. Laurie Madden re this matter and he is willing to make available certified copies of the necessary documentation to enable these formal applications to be lodged. Please make the necessary arrangements with the above mentioned officer."
Mr Morley did not take steps to obtain the certified copies of the documents. The application had been made as CAC had become aware that a competitor, Voxson, had claimed a similar exemption for its imported telephones and was arguing a case before the AAT as to whether it was entitled to the benefit of TCO 8906970. As a large number of documents were involved, it was decided to await the outcome of that case before taking the application further. CAC was also awaiting a reply to its request for a Tariff Advice on this subject.
On 19 May 1992 Mr Morley wrote to the Australian Customs Service asking that a decision be given "at your earliest convenience" as to whether the concession applied to the goods. It was pointed out that a decision was needed "because refunds of duty may be involved". A reply was received to this communication by a letter of 5 June 1992 indicating that TCO 8906970 covered "Telephone Handsets" whereas the Uniden telephones were "Handheld Cellular Telephones". Accordingly, it was said "that the goods subject of the Tariff Advice are complete telephones and therefore are not covered by the TCO". Reference was made to the decision of the AAT (which had apparently then been given) in Voxson Sales P/L v Collector of Customs.
CAC obtained a copy of the AAT decision. Both Mr Morley and his superior in CAC, Mr Anderson, formed a view that the decision was fatal to Uniden's claims for refund. Both considered that the Tribunal decision was final. They knew nothing about any appeal from the AAT decision to the Federal Court. The letter of 5 June 1992, referring to the Voxson decision, made no reference to any appeal having been taken against it. It is not clear from the evidence whether, in fact, any appeal had been lodged at the time of the writing of the letter.
On 6 July 1992 Mr Morley wrote to Mr Ellem in the following terms:-
"Dear Sir
I refer to an Application for Refund made on behalf of my client, Uniden Australia Pty Ltd, which was lodged pending a decision of classification of the goods in question.
The Administrative Appeals Tribunal has made a decision in Voxson Sales -v- Collector and the goods, therefore, are subject to duty.
We wish, as a consequence, to withdraw our application made by letter dated 20th February, 1992 and thank you for your assistance in this matter."
There is conflict in the evidence that was placed before the AAT as to what had occurred within CAC and between CAC and Mr Ellem before the sending of this letter.
In his witness statement Mr Anderson said:-
"In late June or early July 1992 I recollect having a discussion with either Michael Ellem (`Ellem') of ACS or Morley in which I was told:
If said by Ellem:
`The Voxson decision puts an end to your applications for refund. Can you send us a letter seeking to withdraw so that we can tidy it up and close our file?'
If said by Morley:
`I've spoke to ACS who said to me that we've got no chance based upon the Voxson decision and wants us to withdraw the application so the file can be closed.'"
In his statement Mr Anderson went on to say that he believed that the Voxson matter had not gone on appeal and that he would not have been prepared to send the letter of 6 July 1992 had he known that the matter was in fact on appeal.
These matters were not explored in Mr Anderson's oral testimony before the learned senior member. In his statement Mr Morley made no reference to any conversation with Mr Anderson or with Mr Ellem along the lines of those referred to in Mr Anderson's statement. In his oral testimony he said he did not recall any conversation with Mr Ellem in which Mr Ellem said words to the effect that the Voxson decision had put an end to the application for refund and requested that a letter be sent withdrawing the application so that the file could be tidied up and closed. He did not mention any conversation with Mr Anderson on this subject. He asserted that when the Voxson decision was given "it appeared to me that we were out of the game". It didn't come to his mind that there might be an appeal.
Mr Ellem, in his written statement, said that he had no recollection of any contact with anyone from CAC in the period from his sending his letter of 2 March 1992 to his receipt of the letter of 6 July 1992 withdrawing the application for refund. He further said "it was not until the letter of 6 July 1992 that the matter of Voxson Sales was mentioned by Mr Morley. In fact I had no knowledge that there was a matter before the Administrative Appeals Tribunal which had been brought about by Voxson Sales". In his oral evidence he indicated that the application for refund could not be
further processed because there had been "no formal applications". It could not be sent on for further processing, apparently, until the relevant documents were received. He asserted that he was certain that he had heard of the Voxson matter for the first time in the withdrawal request of 6 July 1992 and that he didn't recall any conversations between the dates of the two letters including any conversation with Mr Anderson. He agreed, however, that if Mr Anderson had telephoned and "wanted to know how to go about withdrawing" the application that he would have asked Mr Anderson to formalise it in letter form requesting withdrawal of the matter so that he could then write back indicating that the application for withdrawal was accepted. It was important to him that he had a written request seeking the withdrawal.
This area of the evidence was not the subject of any findings made by the learned senior member. The reasons for this appear in his judgment. I shall refer to them later.
After receipt of the letter of 6 July 1992, Mr Ellem replied by letter dated 8 July 1992 in the following terms:-
"Receipt is acknowledged of your letter dated 6 July 1992 regarding Application for Refund made on behalf of your client Uniden Australia Pty Ltd.
As a consequence of a decision made by the Administrative Appeals Tribunal in the matter of Voxon Sales -V- Collector of Customs, I hereby wish to advise that your request for withdrawal of the application made on behalf of your client has been formally withdrawn."
The letter is strangely worded. It may be that some typographical error has occurred. However, this is not suggested by Mr Ellem in his statement where he says simply that "in that letter, I merely reiterated the matter of the Administrative Appeals Tribunal decision of Voxson Sales as stated in Mr Morley's letter of withdrawal". The question was not explored in his oral testimony.
The evidence indicates that the matter then rested until late November 1994 when Messrs Anderson and Morley became aware that the AAT decision in Voxson had been the subject of a successful appeal in the Federal Court and that thereafter Voxson's case had been upheld in a rehearing before the AAT. CAC then took steps to claim a refund of the duty which Uniden had paid. It did so by lodging an application for refund in standard form which received the official number 1S43468504K. It was received by the Collector on 30 November 1994. The claim for refund was based upon reg 126(1)(e), namely that duty had been paid "through manifest error of fact or patent misconception of the law". Reference was made in it to the AAT decision in Voxson Sales and to TCO 8906970. This application was rejected. The standard Rejection Advice Notice of 20 December 1994 gave as the reason for the rejection that the application was "outside time restraints of reg 128A". It may be noted that it was, in fact, well outside the relevant 12 months time period. However, an appeal was lodged with the AAT and was given the number N95/62. In the application for review, the Reason For Application was stated as "the applicant believes the refund claims were made within the statutory time constraints". It appears, however, that by its refund application 1S43468504K CAC had sought, on behalf of Uniden, to, as it were, reactivate the application of 20 February 1992 which was within time. As appears from the Collector's "Statement of Findings on Material Questions of Fact and Reasons for Decision" filed in matter no N95/62, the Collector accepted that the 1994 application constituted "those further details as mentioned in the 1992 pro forma letter application although it was lodged nearly three years after the pro forma application". In that Statement reference was made to the 1992 file which contained the "pro forma letter application of 20 February 1992" and copies of the letter of 2 March 1992, 6 July 1992 and 8 July 1992 set out above. Reference was also made to a conversation with Mr Fraser of CAC after the issue of the Rejection Advice Notice. Mr Fraser inquired as to the reason for rejection and was advised that the Collector's view was that application 1S43468504K was a new application and was rejected because it was out of time. Later Mr Fraser expressed the view that the withdrawal request of 6 July 1992 had itself been made at the request of the Collector. He was advised that there was no evidence to this effect on the file. The Statement furnished the following "Reasons for the Decision":-
"Refund application 1S43468504K is considered to have been a fresh application. It is not considered to be the supporting application made pursuant to the pro-forma letter application of 20 February 1992 because that latter application was withdrawn in July 1992 and is now spent. Even if the February 1992 pro-forma application was found to be alive, the physical lodging of supporting application 1S43468504K some 33 months later is beyond what is considered a reasonable time in which the applicant could have arranged compilation of certified copies of relevant documents said to have been held by the ACS in February 1992."
Before matter N95/62 came on for hearing before the AAT, the applicant was advised that it might not be a sufficient vehicle for the consideration of matters concerning the withdrawal of the refund application in July 1992. It was desired to raise the question whether the withdrawal itself constituted a reviewable decision on the part of the Collector which should be reversed on the merits, with the result that the original application for refund was kept alive and was within prescribed time limits. Accordingly, an application for extension of time was made to review a decision said to have been made on 8 July 1992 by Mr M Ellem, Senior Inspector Refunds. The decision sought to be reviewed was described as follows:-
"The decision of an officer of the Australian Customs Service to reject an application for refunds of customs duty by allowing the withdrawal of the application which had been validly made under Section 163 of the Customs Act."
As the grounds relied upon by Uniden in its application for extension of time encapsulate arguments which were put to the AAT and repeated in submissions made to this Court, it is convenient to set them out in full. They read as follows:-
"Uniden Australia Pty Ltd is the applicant in a matter before the Tribunal, matter number N95/62. That application seeks review of a decision made by the Collector of Customs rejecting an application for refund of duty made by Uniden and accepted by the Collector in February, 1992. The claim was based on Uniden's belief that certain cellular mobile telephones, if imported, were entitled to duty free entry pursuant to tariff concession order number TC 8906970.
In June, 1992, upon receipt of a letter from the Collector, Uniden's customs broker became aware that in the matter of Voxson Sales Pty Ltd and Collector of Customs, the Tribunal had decided that cellular mobile telephones were not entitled to coverage by TC 8906970. There was no mention that this matter was an appeal. Uniden's customs broker wrote to the Collector on 6th July, 1992 and advised that as a consequence of the decision in the Voxson matter, the application of 20 February 1992 was withdrawn. The customs broker believed the Tribunal's decision was final.
The Collector responded on 8th July, 1992 in terms which indicated that the request for withdrawal, and the assumption on which it was based, namely the finalisation of the Voxson matter, had been accepted and that the Collector had decided to withdraw the application for a refund. The response made no mention of the fact that the Voxson matter was the subject of an appeal to the Federal Court.
In November, 1994, Uniden's customs broker became aware for the first time of the decision of the Tribunal of 18th November, 1994 (matter number Q94/146). That decision agreed with the position which had originally been put by Voxson, namely that cellular mobile telephones were entitled to coverage by TC 8906970. That is, the basis on which Uniden had made its refund claim in February, 1992, was adopted by the Tribunal. As a consequence, Uniden lodged its application for refund dated 30th November, 1994.
On the basis of legal advice which it has received as recently as 15th August in preparing for the hearing of matter number N95/62, Uniden has become aware that the acceptance by the Collector of the letter of 6th July, 1992, constitutes a decision by the Collector which effectively rejected Uniden's February 1992 refund claim. Uniden had not previously recognised the Collector's action as a decision which required an application for review which specifically referred to that decision and, as a consequence, an extension of time. The Collector's statement of facts and contention of 9th June, 1995 in matter number N95/62 indicates that the Collector still does not recognise the action as a decision."
The learned senior member allowed the application and granted an extension of time "for lodging an application by the applicant to review a purported decision by the respondent dated 8 July 1992". The application was numbered N95/1195 and was to be heard jointly with matter number N95/62.
THE TRIBUNAL'S DECISION AND REASONS
In matter number N95/62, the application to review the decision of 20 December 1994, the senior member noted a concession by counsel for the applicant that the application for refund had been lodged out of time and could not succeed. Accordingly, the Collector's decision in respect of which this appeal had been brought was affirmed.
So far as the review of the "purported decision" of 8 July 1992 was concerned, the Tribunal held that Mr Ellem had not made a reviewable decision and accordingly there was nothing to be reviewed. In this regard, the Tribunal gave the following reasons:-
"17.Section 163 itself, and indeed the whole of Division 3 of Part VIII of the Customs Act 1901 in which Section 163 appears, is silent as to any purported right or permission to withdraw a claim for refund of duty.
18.To my mind this is apposite as the right of an applicant to withdraw an application is analogous to the right of a litigant to withdraw from litigation. Apart from those special cases where the leave of the court is required, cf Reg v Varley 2 NSWLR 427; as was made clear by the decision of this Tribunal in Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority 16 AAR 319 a litigant has the right to withdraw from proceedings at any stage up to delivery of decision.
19.In my opinion no permission or leave is required by an applicant for a refund pursuant to Section 163 of the Customs Act to withdraw that application and had Mr Ellem purported to give such leave or permission he would have been acting ultra vires. ...
20. The letter of 8 July 1992 by Mr Ellem is perhaps unhappily phrased but I find that it is not a consent or permission to withdraw but is simply an acknowledgment of the Applicant's withdrawal. Mr Ellem gave evidence before me and he clearly did not consider that he had any authority to grant a withdrawal and I accept his evidence that all he intended by the letter of 8 July 1992 was an acknowledgment of the withdrawal by the Applicant of its application."
In relation to the submission which had been foreshadowed in the grounds for the application for extension of time, namely that, in effect, Uniden had been misled into withdrawing its application for refund on 6 July 1992 either by a misrepresentation on the part of Mr Ellem that the Voxson matter had been finalised or by failure on his part to refer to the appeal from that decision, the Tribunal made the following findings:-
"22.Mr Svehla also submitted that the Applicant's withdrawal of its application for refund as conveyed to the Respondent vide its brokers letter of 6 July 1992 was a nullity as it was undertaken by mistake, the mistake being a misrepresentation by the Respondent's officers that the decision of the Administrative Appeals Tribunal in re Voxon Sales Pty Ltd supra was a final decision whereas the Respondent, through its officers, knew or should have known that an appeal had been lodged to the Federal Court. The failure to advise of this appeal constituted false or misleading conduct such as to render the withdrawal a nullity.
23.The short answer to this submission is that any declaration that the withdrawal of the application for refund is a nullity is not within the powers of the Tribunal.
24.Although the Tribunal has jurisdiction to review certain decisions its powers upon such a review are set forth in Subsection 43(1) of the Administrative Appeals Tribunal Act 1975, namely:
`(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.'
25. As was pointed out by Brennan J (as he then was) sitting as President of this Tribunal in re Adams and the Tax Agents Board 1 ALD 251 the Tribunal is not vested with judicial power. To make a declaration as to the nullity or otherwise of the Applicant's withdrawal of its application for refund would be to exercise that power."
The Tribunal's decision in relation to application number N95/1195 was stated as follows:
“In matter No N92/1195 [sic] there is no decision which can be the subject of review. The withdrawal of the application for refund did not, as I have stated above, require any determination by the Respondent or his officers. As there is no decision to be reviewed then the Tribunal has no jurisdiction and the decision will be that the application be dismissed."
THE CASE ON APPEAL
It was submitted on behalf of Uniden that the senior member had erred in law in holding that there was no requirement that the applicant obtain the permission of the Collector to withdraw its application for refund. It was submitted that the approach adopted in Re Queensland Nickel Management Pty Limited v Great Barrier Reef Marine Park Authority (1992) 16 AAR 319 did not govern the situation of withdrawal of applications for refund under the Act. It was contended that the withdrawal by an applicant of proceedings in a court or tribunal was not truly analogous to the withdrawal of an application for refund.
I must respectfully disagree. In my view, Queensland Nickel and the cases exhaustively reviewed and discussed therein provide clear and compelling authority for the proposition that an applicant for a refund of duty under the Act may withdraw his application at any time before its determination without first obtaining permission to do so from the Collector. In Queensland Nickel the applicant had sought review by the AAT of refusal to grant it a permit to carry out certain activities in the Great Barrier Reef Marine Park. After a lengthy hearing, at the conclusion of which the Tribunal had reserved its decision, the applicant withdrew its application for review. It was contended on behalf of other
parties that the application could be withdrawn only with the Tribunal's consent. The AAT held, however, that the applicant had the right to withdraw its application unconditionally and without leave, with the result that there was no longer a proceeding before the Tribunal in respect of which a decision could be given.
The Tribunal undertook a very full consideration of earlier authorities. I do not propose to repeat that process. I am content to refer to the following passage in the Tribunal's reasons (at pp 322-323):
"In Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412, the New South Wales Court of Appeal dealt with a case in which an applicant in the Workers' Compensation Commission withdrew his application after evidence and the addresses of counsel on both sides had been completed and the judge who constituted the commission had indicated the nature of the order which he proposed to make. The judge purported to refuse leave to withdraw, and purported to make an award. By a majority, the Court of Appeal held that there was a right to withdraw the application at any time before the commission made its award, and that no leave was required. The commission had erred in law in purporting to refuse leave to withdraw and in making an award. Samuels JA (with whom Reynolds JA concurred) reviewed the English authorities (at 422-423). His Honour said (at 423) with respect to the right to withdraw before decision,
`unless in a particular court at a particular time it has been though right to restrict it, I would regard it as a right which every claimant is entitled to exercise'.
Most of the English authorities are similar in effect. R v Hampstead and St Pancras Rent Tribunal; Ex parte Goodman [1951] 1 KB 541 concerned the withdrawal by consent of a claim for determination by a rent tribunal. Lord Goddard CJ said (at 545):
`It seems to me that, unless we find strong words to the contrary in the section, a tribunal can only have jurisdiction so long as an application subsists. I think, therefore, that the tenant may at any time withdraw his application.'
His Lordship expressed the view that an application may be withdrawn at any time before the tribunal gave its decision. In Boal Quay Wharfingers Ltd v King's Lynn Conservancy Board [1971] 1 WLR 1558; [1971] 3 All ER 597 an applicant for a licence to employ persons for stevedoring work withdrew its application. Notwithstanding the withdrawal, the decision-maker purported to refuse the application. The Court of Appeal held that the purported refusal was a nullity. After referring to a provision of the relevant statute, Lord Denning MR said (at 1566; 602):
`But I think that those words only apply to an application which is still a subsisting application when the time comes for decision. An applicant has a right to withdraw it at any time before the decision is given. If an application is withdrawn, the licensing authority are under no duty, and have no power, to hear or determine the application. They cannot refuse it because there is no subsisting application for them to refuse. There is nothing left of the application. There is no room for refusal.'
Salmon LJ held (at 1569;604) that the reference in the same statutory provision to an application `must mean an effective application. An application which has been withdrawn is not, in my view, an effective application ...' His Lordship also recognised the entitlement to withdraw an application at any stage."
It was submitted that the proper construction of the relevant sections of the Act and the regulations prevented the application of these principles to the withdrawal of an application for refund of duty. Reference was made to ss 163(1)(b), (1B), (1C) and (1D) of the Act together with regs 127, 128 and 128A. Undoubtedly if there is a valid application for refund of duty made in accordance with these provisions then the Collector has the power to make such a
refund having considered the application on its merits. This does not mean, however, that an applicant does not have the right to withdraw the application before it has been determined. Indeed, if the Collector were required to consider an application on its merits even though the applicant had withdrawn the application this would clearly impose a heavy and unnecessary burden on the Customs authorities which, in my view, it could not have been the intention of the legislature to do. Equally, if applicants could not withdraw their applications without leave of the Collector an unnecessary burden would be cast on those applicants who might wish so to withdraw for good reason.
I am satisfied that there was no implied legislative requirement that the Collector make a decision permitting the withdrawal of the application for a refund. I should add that this was clearly not a case where the public interest or the interests of third parties was involved in a way which, consistently with authority, would require permission to withdraw (see e.g. Hanson v London Rent Assessment Committee; R v London Rent Assessment Committee; Ex parte Hanson [1976] QB 394).
It was further submitted that, even if permission were not needed in the present case, Mr Ellem had nevertheless granted such permission. Such an act, even if ultra vires, could be the subject of review by the AAT (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24
ALR 307). However, in my view, this argument is not open to the appellant. The senior member has found as a fact that Mr Ellem's letter of 8 July 1992 was simply an acknowledgment of the withdrawal of the refund application and did not involve the making of any decision on his part. In my opinion, this finding is not capable of being reviewed by this Court.
There remains for consideration submissions raised by counsel for the applicant under the topic of what he described as "effective withdrawal". In his submission the AAT erred in law in holding as it did in paragraphs 22 to 25 of its reasons, cited above. As I understand him, he does not submit that the senior member erred in holding that he could not exercise the judicial power of the Commonwealth. In this, of course, the senior member was plainly correct. It would follow that the AAT could not, as is stated in these passages, make curial orders in the nature of declarations. This would plainly be an exercise of judicial power. What he contends, however, is that within the exercise of the powers and discretions conferred upon the Collector by s 163 of the Act and, therefore, exercisable in like fashion by the Tribunal when reviewing the Collector's decision there exists a power to determine whether a purported withdrawal of an application for a refund is in substance a true withdrawal or whether it is robbed of effect by reason of some vitiating circumstance such as fraud or innocent misrepresentation.
If matters of this kind were proper for consideration by the Collector and therefore by the Tribunal, then an error of law would have occurred in the present case through the Tribunal's refusal to determine whether the "purported" withdrawal had been effective in removing the application for refund from determination by the Collector. In such circumstances, the Tribunal would have been obliged to make findings in the area of the conflicting evidence which I have referred to above. In particular, it would need to determine whether a representation was made by Mr Ellem to Mr Anderson that the Voxson Sales matter had been finalised in conjunction with a request that a letter be sent by CAC formally withdrawing the refund application so that the file could be closed. There could also be another unresolved factual question as to whether the failure to mention the existence or possibility of an appeal from the Voxson Sales decision in the AAT, in the circumstances, amounted to a representation by silence.
It is asserted on behalf of Uniden that it was entitled to have these matters considered by the Collector in the context of its November 1994 application for a refund which, it was contended, was "linked" to its March 1992 application insofar as that application had not been effectively withdrawn. These considerations would not involve an exercise of the judicial power of the Commonwealth. They would simply be an instance of the general requirement that the Collector and the AAT, when standing in the Collector's shoes, apply the law in the making of decisions required to be made under the Act.
It has always been clear that the AAT has power to decide questions of law relevant to the area in which it is making its decision. If it commits a legal error in so doing then that error can be corrected by appeal to this Court, whereas, of course, mere factual error cannot be so corrected (see per Bowen CJ Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307 at 316-317; Lehtovaara v Commission of Patents (1981-2) 39 ALR 103 at 115; Waterford v The Commonwealth (1986-87) 163 CLR 54 at 77).
Although one can envisage circumstances where a submission based upon a withdrawal of a claim being ineffective through its being vitiated by some factor such as fraud or misrepresentation might be successfully raised, I have come to the conclusion that such a submission is not open in the present case. In the first place it seems tolerably clear that it was not raised before the AAT in the manner discussed above but rather on the basis, as considered by the AAT, that it should make a declaration of nullity in relation to withdrawal. It must be remembered that the senior member was being asked to review two separate decisions of the Collector. The first was the rejection of the November 1994 application, this rejection being based upon its being out of time. Although it is by no means clear, it appears that the argument presented to the Collector and rejected by him was
that the application was, in effect, within time as it was merely brought in support of the March 1992 application. It also appears that some rather amorphous argument was put to the Collector to the effect that the withdrawal of the 1992 application had been at the request of the Customs authorities. There was no indication in the file that this was so and the suggestion was rejected. As appears from the Collector's Reason for Decision the application was decided on the basis that it was a separate and new application which was clearly out of time. The previous application had been withdrawn and was spent. Even if it had in some fashion been revived the supporting documentation had not been provided within a reasonable time. The application for review in respect of this decision (N95/62) asserted only that "the applicant believes the refund claims were made within the statutory time constraints".
Although, conceivably, assertions that the withdrawal had not been "effective" and the application was, consequently, not "spent" could have been raised in respect of this decision, this did not occur. It appears from the AAT's Reasons for Decision that, so far as N95/62 was concerned, it was conceded that the application "had been lodged out of time and could not succeed". In light of this fact it cannot, in my view, be contended that the senior member erred in law in not considering the question of "effective" withdrawal.
The second application (N95/1195) related only to the review of a decision described as "the decision of an officer of the Australian Customs Service to reject an application for refunds of customs duty by allowing the withdrawal of the application which had been validly made under s 163 of the Customs Act". The AAT found that no such decision had ever been made. This was a finding of fact. In my view, any question of "effective" withdrawal could not arise within the ambit of the question posed by this application for review.
I am therefore satisfied that the senior member did not err in law by failing to make findings of fact relevant to the applications that he had before him. For reasons already given I am satisfied that he did not make any of the errors of law asserted in these proceedings.
Consequently, I dismiss these appeals with costs.
As to the notice of motion seeking leave to claim relief against the Collector under s 39B of the Judiciary Act in these proceedings, I am quite satisfied that such leave should not be granted. Although it was submitted that all necessary facts were before me in the proceedings to enable me to make the orders sought, it seems quite apparent that there would be, in any event, contested issues of fact which could only be resolved by my seeing and hearing the relevant witnesses. I am not prepared to exercise my discretion to permit these proceedings to be joined with these appeals. Accordingly I dismiss the notice of motion with costs.
I certify that this and the preceding twenty seven (27) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.
Associate:
Date: 22 APRIL 1997
A P P E A R A N C E S
COUNSEL FOR THE APPLICANT: J. SVEHLA
INSTRUCTED BY: GIBSONS
COUNSEL FOR THE RESPONDENT: P. ROBERTS
INSTRUCTED BY: AUSTRALIAN GOVERNMENT SOLICITOR
DATE OF HEARING: 24 MARCH 1997
DATE OF JUDGMENT: 22 APRIL 1997
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