Vee Dri (Aust) Pty Ltd and Comptroller-General of Customs

[2015] AATA 878

Vee Dri (Aust) Pty Ltd and Comptroller-General of Customs [2015] AATA 878 (4 November 2015)

Division	GENERAL DIVISION
File Number	2015/4557
Re	Vee Dri (Aust) Pty Ltd
APPLICANT
And	Comptroller-General of Customs
RESPONDENT

DECISION

Tribunal	Egon Fice, Senior Member
Date	4 November 2015
Date of written reasons	13 November 2015
Place	Melbourne

The Tribunal refuses the application made by Grow Choice Pty Ltd under section 30(1A) of the Administrative Appeals Tribunal Act 1975 to be joined as a party to this application.

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Egon Fice, Senior Member

Catchwords

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – procedure and evidence – parties - joinder application – person whose interests are affected by decision – customs – payment of duty under protest – importation of flupropanate – party applying for joinder was customer of the applicant – joinder refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 30
Customs Act 1901 (Cth) ss 163, 167

Customs Regulation 2015 (Cth) reg 106

Cases

Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262

Re McHattan and Collector of Customs (New South Wales) (1977) 1 ALD 67

REASONS FOR DECISION

Egon Fice, Senior Member

13 November 2015

1. For some 15 years Vee Dri (Aust) Pty Ltd (Vee Dri) has imported a constituent product called Technical Flupropanate used in the manufacture of its herbicide known as Taskforce.  Flupropanate (tetrafluoropropionic acid) is apparently imported in the form of sodium flupropanate, an aqueous solution of sodium tetrafluoropropionate.  Vee Dri has been entering these goods under classification 2915.50.00 without issue.

2. However, a recent importation of those goods resulted in them being classified to 2915.90.00. Vee Dri made payment of duty under protest pursuant to s. 167 of the Customs Act 1901 (the Customs Act). On 31 August 2015 Vee Dri lodged an application with the Tribunal seeking review of the decision made by a delegate of the

   
   

   Comptroller-General of Customs.

3. On 29 September 2015, Mr Robert Fagan, on behalf of Grow Choice Pty Ltd (Grow Choice), lodged an application with the Tribunal to be made a party to this proceeding.  The reasons given by Mr Fagan for the application to be made a party were stated as follows:

   We duty/GST “paid under protest” the following 5-imports as required by the letter of assessment of 20 July 2015 by Australian Border Force, REF: 2014/040560-01; AA77YKHLF, AA7WF7JWA, AA949R46C, AA9LKLJXT, ACC3NKELX and a subsequent import ACLG9FWWH.

   This is to ensure our rights to full refunds should the applicant, Vee Dri (Aust) Pty Ltd, be successful.

4. I refused Grow Choice’s application for joinder.  The following are my reasons for decision.

   JOINDER OF PARTIES

5. Section 30 of the Administrative Appeals Tribunal Act 1975 (AAT Act) makes provision for the joinder of parties in the following way:

   (1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

6. Although in the context of making an application to the Tribunal for review of a decision, Brennan J in his capacity as President of the Tribunal in Re McHattan and Collector of Customs (New South Wales) (1977) 1 ALD 67, at 70, made this well-known statement regarding a person whose interests are affected by a decision:

   However, a decision which affects interests of one person directly may affect the interests of others indirectly.  Across the pool of sundry interest, the ripples of affection may widely extend.  The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s. 27(1).  The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.

7. In the Tribunal case Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262 Deputy President Thompson dealt with the expression persons whose interests are affected in the context of a joinder application. Section 30(1A) of the AAT Act at that time was in identical terms to that now found in the current AAT Act. In that case, Marine World sought review of a decision of the Minister refusing an application for a permit under s.11 of the Whale Protection Act 1980 to take cetaceans in Commonwealth waters for live display and educational purposes. A number of bodies, corporate and unincorporated associations of persons, applied under s. 30(1A) to be made parties to the proceeding.

8. DP Thompson said, at 271 – 272:

   (32) However, whereas s. 30(1)(c) originally required the Tribunal to make a person a party to a proceeding if he was a person whose interests were affected by the decision under review in that proceeding and he applied to be made a party,

   
   

   s. 30(1A) now expressly gives the Tribunal a discretion whether or not to do so.  That discretion must, of course, be exercised rationally with regard paid to all the circumstances of the proceeding and the nature of the interest of each of the persons applying to be made a party.  It is necessary to have regard to the nature of review proceedings before the Administrative Appeals Tribunal.  As was pointed out in Re Control Investments Pty Ltd, the Tribunal is required by the AAT Act to provide a fair hearing and to carry out the review as expeditiously as the subject matter of the review permits (see in particular s. 33(1)(b) and s. 39).  The increased cost of the proceeding to the applicant and the respondent which will result from the joinder of additional parties in the proceeding is a factor to be taken into account.…  I am unable to accept that the Tribunal should allow Marine World to be subjected to greater expense than is necessary for the proper review of the Minister’s decision.  Further, the Tribunal must be concerned with the cost not only to Marine World but also to public funds and endeavour to contain it to what is sufficient to enable it to undertake a proper review.

   (33) There is also the requirement that the matter be dealt with expeditiously.  That, and the need to keep the cost within proper bounds, make [sic] it undesirable that there should be a multiplicity of additional parties each separately represented and presenting a separate case.  Only if their interests affected by the decision under review are both substantial and significantly different from one another can that be justified.

   GROW CHOICE PTY LTD’S APPLICATION

9. This matter is unlike cases involving the Customs Act where a Tariff Concession Order (TCO) was in issue. In those cases, joinder is frequently granted to parties seeking it. That is because usually the applications are made by persons who claim they manufacture substitutable goods in Australia and, accordingly, their interests are affected. Plainly, such persons have interests which are substantial and significantly different to those of an applicant. However, that is not the case with Grow Choice’s application.

10. While the grounds stated in the application form lodged with the Tribunal by Grow Choice are not particularly enlightening as to its interests, Mr Fagan in oral submissions made two points.  The first was that Grow Choice had also in the past imported Flupropanate and, as I understood Mr Fagan, was dissatisfied with the classification and hence the duty payable on that product.  He said that Grow Choice intended to apply for a refund of duty paid over the past five years as a consequence of that classification.  The second point made by Mr Fagan was that Grow Choice was a customer of Vee Dri.  As I understood

    
    

    Mr Fagan, Grow Choice’s interests were affected by reason of the price it was required to pay for its purchases from Vee Dri.

11. While Mr Fagan submitted that Grow Choice’s interests were affected by reason of the cost to it of either importing or purchasing Flupropanate, and I accept that was the case, it does not necessarily follow that the Tribunal’s discretion should be exercised to permit Grow Choice to be joined as a party to this proceeding.  That is because it should be clear enough that Grow Choice’s interests in the outcome of Vee Dri’s application to the Tribunal are identical.  Mr Fagan did not submit that Grow Choice’s interests could not be adequately represented by Vee Dri.  Vee Dri is represented by a specialist law firm whose practice is international trade, customs and commercial law.  Mr Gross is a highly experienced lawyer in the field of customs tariffs.  To have Grow Choice joined as a party, separately represented, and making in effect the same submissions as Vee Dri is not the most expeditious manner to conduct the proceeding.  It is, in my opinion, unnecessary.  Grow Choice’s interests will be adequately represented by Vee Dri.

12. Furthermore, in the event that Vee Dri is successful in its review application before this Tribunal, there is no reason why Grow Choice could not then make an application under

    
    

    s. 163 of the Customs Act for a refund or remission of duty. In fact, as Mr Gross pointed out to Mr Fagan in the course of his submissions, Grow Choice would only be entitled to seek a refund or remission of duty for the four-year period after duty was paid. That limit is set out in Regulation 106(2)(b)(iii) of the Customs Regulation 2015.

13. For those reasons, I refused to make an order that Grow Choice be joined as a party to this proceeding.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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Associate

Dated 13 November 2015

Date of hearing	4 November 2015
Advocate for the Applicant	Mr L Gross
Solicitors for the Applicant	Gross & Becroft Lawyers
Advocate for the Respondent	Mr R Northcote
Solicitors for the Respondent	Department of Immigration and Border Protection
Advocate for the Other Party	Mr R Fagan