Victor Footwear Pty Ltd and Secretary, Department of Industry, Tourism and Resources - [2005] AATA 64

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 64
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/350
GENERAL ADMINISTRATIVE DIVISION

Re: VICTOR FOOTWEAR PTY LTD
Applicant
And:SECRETARY, DEPARTMENT OF INDUSTRY, TOURISM AND RESOURCES
Respondent

DECISION
Tribunal: Dr Gordon Hughes, Member
Date:21 January 2005
Place:Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) Gordon Hughes
Member

INDUSTRY, TOURISM AND RESOURCES – AusIndustry ‑ textile clothing and footwear strategic investment program – Type 3 grants – relevance of Type 1 "grants made"
Textile, Clothing and Footwear Strategic Investment Program Act 1999 ss66(b)(i), 77(2)
Textile, Clothing and Footwear Strategic Investment Program Scheme 1999
Secretary, Department of Social Security v Lowe (1999) 56 ALD 609
Repatriation Commission v Keeley (2000) 60 ALD 401
Kimberley-Clark Australia Pty Ltd v Secretary to the Department of Industry, Tourism and Resources [2004] FCA 1438
REASONS FOR DECISION
21 January 2005  Dr Gordon Hughes, Member
1.      This is an application by Victor Footwear Pty Ltd (the applicant) for review of a decision made on 17 February 2004 by AusIndustry, a division of the Secretary, Department of Industry, Tourism and Resources (the respondent) in relation to the applicant’s entitlement to a grant, payable under the Textile, Clothing and Footwear Strategic Investment Program Scheme 1999 (the Scheme). Specifically, the applicant contests the manner in which the respondent has interpreted s 66 of the Scheme as it applies to caps placed on "Type 3 grants".
2. The matter was heard on 6 December 2004. Mr Louis Gross, solicitor, appeared for the applicant and Ms Elizabeth Collins of counsel appeared for the respondent. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and two exhibits filed on behalf of the applicant (A1 and A2).
Background
3.      None of the background is contentious but nevertheless, in order to adequately address the relatively narrow issue in dispute, it is necessary to recite the background in some detail.
4.      The applicant is a manufacturer of quality work wear and elastic‑sided boots. The company employs 30 people. The investment which gave rise to the dispute involved the purchase of a rotary table injection moulder for $1,306,169.
5.      The Scheme was established by the Minister for Industry, Tourism and Resources in 1999 pursuant to the Textile, Clothing and Footwear Strategic Investment Program Act 1999 (the Act). The Scheme in force at the time of the original decision was the compilation prepared on 11 December 2002.
6.      The Scheme is designed to provide incentives in the form of grants to promote investment, innovation and value adding in the Australian textile, clothing and footwear industry. The Scheme applies to "eligible Textile, Clothing and Footwear (TCF) activity". It was not in dispute that the applicant was conducting an "eligible TCF activity”, manufacturing "eligible TCF products".
7.      The Scheme is to operate for 5 "program years" from 2001 to 2005. "Program years" are defined in s 6(2) of the Scheme…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Victor Footwear Pty Ltd and Secretary, Department of Industry, Tourism and Resources [2005] AATA 64
Case: [2005] AATA 64
Decision Date: 21 January 2005

CaseChat Overview and Summary

Victor Footwear Pty Ltd sought review of a decision by the Department of Industry, Tourism and Resources regarding its entitlement to a grant under the Textile, Clothing and Footwear Strategic Investment Program Scheme 1999. The dispute centred on the interpretation of the cap on Type 3 grants as outlined in section 66 of the Scheme. Specifically, the Tribunal had to determine whether the cap on Type 3 grants should be based on the total Type 1 grants made to the entity for the program year, which included a prorated sum over a three-year period, or solely on the Type 1 grants for the particular program year in question.

The Tribunal concluded that the reference to "Type 1 grants made to the entity for the program year" in section 66(b)(i) of the Scheme should be interpreted to mean the "eligible grant amount" for that specific program year, as defined in section 77(2) of the Scheme. This interpretation was supported by sections 14 and 11 of the Act and the Scheme, which clarify that a "grant" refers to "eligible expenditure incurred" in the program year. The Tribunal noted that while the Scheme was designed to spread Type 1 expenditure over three years, there was no indication that the same approach applied to Type 3 expenditure. Therefore, the Tribunal affirmed the decision of the respondent, finding that the cap on the Type 3 grant should be based on the Type 1 grants made exclusively for the 2001/2002 program year.

Orders