Western Mining Corporation Ltd v Comptroller-General of Customs
[1987] FCA 411
•30 JULY 1987
Re: WESTERN MINING CORPORATION LIMITED
And: COMPTROLLER-GENERAL OF CUSTOMS
No. WA G83 of 1986
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)
CATCHWORDS
Administrative Law - Judicial review - Decision by delegate of Comptroller-General of Customs refusing to make a by-law or determination granting a concessional rate of duty in respect of imported refractory bricks on the ground that a suitable equivalent of Australian manufacture was reasonably available - Previous decision set aside on judicial review and matter remitted to the Minister for reconsideration - Legislation amended between date of hearing and date of judgment providing for power to be exercised not by Minister but by Comptroller-General of Customs - Whether delegate of Comptroller-General of Customs had jurisdiction to make the decision - Whether delegate failed to take into account relevant considerations - Whether irrelevant considerations taken into account - Whether the exercise of the power was so unreasonable that no reasonable person could have so exercised the power.
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5
Customs Act 1901 (Cth), ss.271, 272, 273
Customs Tariff Act 1966 (Cth), Item 19 of Schedule 2
Customs Administration Act 1985 (Cth), ss.4, 5
Customs Administration (Transitional Provisions and Consequential Amendments) Act 1985 (Cth), ss. 3, 4
HEARING
CANBERRA
#DATE 30:7:1987
Counsel for the applicant: Mr P.C.S. Van Hattem
Solicitors for the applicant: Freehill, Hollingdale & Page
Counsel for the respondent: Ms C. Francas
Solicitor for the respondent: Australian Government Solicitor
ORDER
The application be dismissed.
The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application by Western Mining Corporation Limited ("the applicant") under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of a decision made by a delegate of the Comptroller-General of Customs ("the respondent") refusing to make a by-law or determination applying Item 19 of Schedule 2 to the Customs Tariff Act 1966 (Cth) ("the Customs Tariff") to certain flash furnace refractory bricks imported, and entered for home consumption, by the applicant in June 1981.
The matter has a somewhat long history to which it will be necessary to refer. Before doing so, however, reference should be made to the relevant legislative provisions.
The relevant sections of the Customs Act 1901 (Cth) ("the Customs Act") are ss.271, 272 and 273. At the time of the importation of the goods and, indeed, until 10 June 1985, those sections provided as follows -
"271. Where -
(a) an item of a Customs Tariff, or a proposed item of a Customs Tariff, is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law; or
(b) under an item of a Customs Tariff, or a proposed item of a Customs Tariff, any matter or thing is expressed to be, or is to be determined, as prescribed or defined by by-law,
the Minister may, subject to the succeeding sections of this Part, make by-laws for the purposes of that item or proposed item.
272. The Minister may specify in a by-law made for the purposes of an item, or a proposed item, of a Customs Tariff that is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law -
(a) the goods, or the class or kind of goods, to which that item or proposed item applies;
(b) the conditions, if any, subject to which that item or proposed item applies to those goods or to goods included in that class or kind of goods; and
(c) such other matters as are necessary to determine the goods to which that item or proposed item applies.
273. (1) The Minister may determine, by instrument in writing, that, subject to the conditions, if any, specified in the determination, an item, or a proposed item, of a Customs Tariff that is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law shall apply, or shall be deemed to have applied, to the particular goods specified in the determination.
(2) The Minister may make a determination under the last preceding sub-section for the purposes of an item, or a proposed item, of a Customs Tariff whether or not he has made a by-law for the purposes of that item or proposed item.
(3) Where, under this section, the Minister determines that an item, or a proposed item, of a Customs Tariff shall apply, or shall be deemed to have applied, to goods, that item or proposed item shall, subject to this Part and to the conditions, if any, specified in the determination, apply, or be deemed to have applied, to those goods as if those goods were specified in a by-law made for the purposes of that item or proposed item and in force on the day on which those goods are or were entered for home consumption."
The Customs Administration Act 1985 (Cth), which was assented to on 29 May 1985 and came into operation on 10 June 1985 (see Commonwealth Gazette S194 published on 7 June 1985), provided for the appointment of a Comptroller-General of Customs and for the establishment of an Australian Customs Service (s.4). By s.3 of Customs Administration (Transitional Provisions and Consequential Amendments) Act 1985 (Cth), a provision which was also assented to on 29 May 1985 and which came into operation on the day on which the Customs Administration Act 1985 came into operation, viz. 10 June 1985, "Minister" wherever appearing in ss.271, 272 and 273 of the Customs Act was deleted and replaced by "Comptroller", an expression defined in s.4(1) of the Customs Act to mean the Comptroller-General of Customs.
Item 19 of Schedule 2 to the Customs Tariff, which the applicant sought to have applied to the imported refractory bricks, was in the following terms:
"19. Goods, as prescribed by by-law, being goods a suitable equivalent of which that is the produce or manufacture of Australia is not reasonably available."
At the relevant time the applicant carried on mining operations in the State of Western Australia including the smelting of nickel ore. As part of those operations it operated the Kalgoorlie Nickel Smelter which was located, as the name implies, near Kalgoorlie in Western Australia. The smelter was built in 1972 and incorporated a flash furnace (Furnace No.1) designed by Outokumpo Oy of Finland. The flash furnace was lined with refractory bricks. The designer of the furnace recommended the use of Austrian refractories and, following this recommendation, the applicant initially used bricks supplied by Veitscher Magnesitwerke Actiengesellschaft of Austria ("Veitscher"). Thereafter, at various intervals, the flash furnace, the electrical furnaces and the converters forming part of the smelter were relined with refractory bricks including imported refractory bricks and refractory bricks manufactured in Australia by Harbison ACI Pty Limited ("Harbison").
In November 1978 a new flash furnace (Furnace No.2) designed by the same Finnish company was installed. Veitscher refractory bricks were again used though apparently not to line the reaction shaft, that being the section of the furnace which had the most arduous duty. In that area refractory bricks of Japanese manufacture were apparently used. From time to time the refractory bricks in this furnace needed to be replaced, replacement being necessary about once in every three to five years. To replace the bricks it was necessary for the smelter to be closed down. The new bricks were then installed and the smelter re-started.
In 1980 the applicant perceived that a reline of Furnace No.2 was becoming necessary and it invited tenders for the provision of suitable bricks. Invitations to tender were sent to a number of companies, some foreign and some based in Australia. Each company was asked to provide its own specifications for the varying conditions prevailing within the flash furnace. Of the Australian companies, only Harbison lodged a quotation. That company proposed a particular layout and mix of various grades of its refractory bricks including a product known as Nucon 60XD, which had only recently been developed and which had not been proved in service in a flash furnace of the type installed by the applicant. Veitcher also lodged a quotation.
Having evaluated the quotations received, the applicant decided that, while bricks of Japanese manufacture should continue to be used in the reaction shaft (as to which no question now arises), the remainder of the relining should be carried out by using, in the main, various grades of bricks supplied by Veitcher with "trial patches" of bricks supplied by Harbison, those bricks being known as Nucon 50, Nucon 60 and Nucon 60XD. The bricks supplied by Veitscher were subsequently imported into Australia and Customs duty paid pursuant to Item 69.02 in Part II of the First Schedule to the Customs Tariff.
On 5 April 1981 the applicant applied for by-law concession in respect of the imported bricks. A delegate of the Minister, Mr D.D. Bolton, refused the application on the ground that Harbison were able to supply bricks which were a suitable equivalent of the imported bricks. He so informed the applicant by letter dated 25 February 1982.
It is clear from Mr Bolton's affidavit sworn on 2 November 1983 and filed in the proceedings in this Court to which reference will be made that, in reaching his decision, he had before him material, which he regarded as relevant, showing that Harbison had previously supplied refractory bricks for Furnace No.1 in the Kalgoorlie Nickel Smelter, that only 20 per cent. of the bricks included in the tender submitted by Harbison for the relining of Furnace No.2 related to a new type of brick (Nucon 60XD) which had not been used before and that that type of brick had been shown by factory tests to have a better wear rate than Harbison's standard refractories and to have proved satisfactory when tested on the slag produced by the applicant's flash furnace. Mr Bolton also regarded as relevant that Harbison had made a comprehensive quotation in respect of the relining of Furnace No.2 and that the applicant had agreed that the Nucon 60XD bricks had better thermal shock qualities than the imported bricks, though he recognised that the erosion characteristics of the Nucon 60XD bricks were unclear. The material which was before Mr Bolton and from which he drew those conclusions was not controverted by the applicant either in the earlier proceedings before the Court or in relation to the reconsideration of the matter which has given rise to the present application.
Following Mr Bolton's refusal of the application, the applicant sought a reconsideration of the decision but this, too, was unsuccessful. The reconsideration was undertaken, in the first instance, by Mr Bolton and his further decision to refuse the application was reviewed, with the same result, by a more senior delegate of the Minister, Mr C.W. Channon. The result was conveyed to the applicant by letter dated 2 December 1982.
An application was then made to the Court under s.5 of the Judicial Review Act. That application was heard by a single judge of the Court (Davies J.) and, on appeal, by a Full Court (Woodward, Toohey and Pincus JJ.). Davies J., on 21 December 1984, granted the application for an order of review, set aside the decision under review and ordered that the matter be remitted to the Minister for Industry and Commerce for reconsideration. The Full Court heard the Minister's appeal on 28 May 1985 and delivered a reserved judgment on 19 June 1985.
The Full Court examined in some detail the material that was before the delegates of the Minister. The Court concluded, contrary to the view expressed by Davies J., that, on that material, it was open to the delegates to arrive at a conclusion adverse to the applicant upon the question "whether the Harbison bricks, or any of them, constituted a suitable equivalent of the Veitscher bricks actually imported, or any significant number of them". The Court, however, concluded that the delegate, Mr C.W. Channon, who made the decision which was conveyed to the applicant by letter dated 2 December 1982 had left out of account a relevant matter, namely that one grade of the Harbison bricks, that known as Nucon 60XD, had not been proven in service. Their Honours said:
"In determining whether one product, intended to be put to practical use, is a suitable equivalent for another, we are of the view that the fact that the alleged equivalent has not been proved in practical use may, and depending on the circumstances often would, be material .... More generally, any factor whatever which may throw light upon the suitability of a product for its intended use may be relevant in determining an application for a by-law."
In the result, the Full Court substituted for the order made by Davies J. an order setting aside the decision under review and remitting the matter to the Minister for Industry and Commerce for reconsideration in the light of the reasons of the Full Court.
It is to be noted that the appeal to the Full Court was heard on the day before the Royal assent was given to the amending legislation providing that the power to make a by-law under ss.271 and 272 of the Customs Act or a determination under s.273 thereof was no longer vested in the Minister but in the Comptroller-General of Customs. As has already been noted, the amendments came into operation on 10 June 1985 and the Full Court gave its decision on the appeal nine days later, on 19 June 1985. A perusal of the transcript of the proceedings before the Full Court indicates that the amending legislation was not brought to the attention of the Court.
Following the Full Court's decision, the further consideration of the matter was undertaken, initially, by Mr R. Senior, an officer of the Australian Customs Service. Although the evidence on the point is not entirely satisfactory, it appears that Mr Senior undertook the review in conjunction with his consideration of an application made in 1985 by the applicant under Part XVA of the Customs Act for a Commercial Tariff Concession Order in respect of a further importation or proposed importation of refractory bricks. The later application has no relevance for present purposes but, in evaluating the documents to which I shall refer, it is necessary to bear in mind the dual nature of the task on which Mr Senior was engaged.
It is also of note that, notwithstanding the comment which had been made by the Full Court that the documents upon which the decision then under review was made did not disclose the facts with complete clarity, the applicant took no steps to supplement the material which had previously been provided.
Mr Senior arranged a visit to the Kalgoorlie Nickel smelter, the visit taking place on 10 April 1986. The purpose of visiting the smelter, as expressed by Mr Senior in his notes of the visit, was "to gain first hand experience of the problems involved with regard to the role of the refractory bricks in the nickel smelting furnace". Mr Senior was apparently given a tour of the smelter and the various operations were explained to him.
On 21 May 1986 Mr Senior visited the premises of Heat Containment Industries Pty Limited, the company which then carried on the business formerly carried on by Harbison. It appears that this visit was as much concerned with the application for a Commercial Tariff Concession Order in respect of the later importation or proposed importation of refractory bricks as it was with the review of the earlier decision refusing by-law concession. The main purpose of the visit was to obtain details of the various industries which the company had serviced and information as to the performance of the refractory bricks supplied to those industries. Mr Senior also prepared notes of this visit.
Following his consideration of the matter, Mr Senior prepared two minutes dated 3 June 1986, one dealing with the more recent application for a Commercial Tariff Concession Order and the other with the review of the earlier decision. The latter minute referred to the history of the matter, including references to the reasons for judgment of Davies J. and of the Full Court, and continued:
"Review
. Let me firstly say that I agree with both court's comments that there was not sufficient evidence for the delegate to make a proper decision on the matter one way or the other.
. There was a certain amount of contradictory evidence given by both WM (the applicant) and HACI (Harbison).
. I could go over certain aspects put forward by both parties and put my emphasis on certain factors. I do not think this would add much to the review and would simply be another subjective point of view.
. I must point out that in my opinion, neither the delegate nor the courts took into consideration the supply of Harbison's refractory bricks to other industries.
. Western Mining's smelter was designed by OUTOKUMPU of Finland who specified the lining be carried out with bricks supplied by Veitscher of Austria.
. There is nothing unique in the design of a nickel smelter which requires bricks vastly different to those needed in other furnaces and smelters.
. Although Harbison's bricks had been unproven in these conditions, they had been supplied to other smelters, furnaces etc which operate at equally high temperatures.
. Harbison had in fact quoted for the complete reline.
. To my mind the fact that HACI had quoted for the reline and that they were also at that time supplying bricks to similar type industries indicates their goods were suitably equivalent.
. The case built up by WM regarding the reliability of the Austrian bricks, the different composition etc are made to substantiate their commercial decision to buy from Veitscher.
. There is evidence from WM themselves that HACIs bricks could do the job.
It is my opinion that the initial decision to refuse the by law application was correct. I believe HACI's production and sale of refractory bricks to a wide range of industries requiring refractory bricks for kilns, furnaces etc is evidence that their bricks are suitably equivalent to the imported bricks."
Those minutes were submitted to Mr J.M. Chesworth, the Assistant Comptroller-General, Tariff Concession and Quota Branch, a delegate of the respondent. On 25 June 1986 Mr Chesworth noted the papers that he agreed that the application for by-law concession should be refused. The decision was conveyed to the applicant by a letter dated 16 July 1986 addressed by Mr Chesworth to Mr M. Haywood of Brambles International Trade Consultants who acted in the matter for the applicant. The letter read:
"I refer to your previous by law application for certain refractory bricks on behalf of Western Mining Corporation Ltd. Following an appeal by Western Mining to the Federal Court on the Department's decision to refuse by law admission and a subsequent appeal by the Department, the Full Court of the Federal Court of Australia ordered a review of the initial decision.
This review has now been completed. Mr Rhett Senior of this branch accompanied you on a visit to Western Mining's nickel smelter at Kalgoorlie and also visited the premises of Heat Containment Industries at Unanderra NSW. The decisions handed down by both courts have been fully examined and the points raised by the judges have been taken into account.
In determining whether goods are 'suitably equivalent' to one another, a number of different factors must be taken into account. Both Courts commented on the interpretation of the term 'suitably equivalent', Justice Davies reading it as meaning that goods to be suitably equivalent must be 'commercially interchangeable'.
The Full Court did not agree with Justice Davies' interpretation and looked at the question another way viz.,
'.... taking their various qualities all in all, and considering the purpose to which they were to be applied, could it be said that the Harbison bricks would not perform their intended function about as well as Veitschers?' (my emphasis)
However, I am led to believe that only actual on-stream production testing can determine whether the bricks perform acceptably in any particular operational situation. This would appear to apply equally to both local and imported bricks. Hence, there would seem no justification for requiring a local manufacturer to provide performance testing results in order to establish the suitable equivalence of local bricks.
As the Courts pointed out, there was very little evidence presented to categorically prove suitable equivalence. All that was presented was claim and counter claim. In fact, evidence was presented to the original delegate by Western Mining themselves that the Harbison bricks were capable of being used in the lining, apart from the critical areas such as the reaction shaft. (Heat Containment Industries have subsequently confirmed their inability to supply bricks for the reaction shaft and the hearth; these bricks are consequently covered by TCO's (Tariff Concession Orders).)
One issue that was not raised by this Department nor the Courts was Harbison's performance record in supplying refractory bricks. From the visit to Heat Containment Industries (previously Harbison ACI), it is clear that they supply a wide range of industries requiring refractory bricks to line furnaces and smelters operating at extreme temperatures.
It must also be pointed out that Harbison had initially tendered to supply the complete reline at the Kalgoorlie nickel smelter. Based on their ability to supply similar furnances in other industries, it appears that it would not be unreasonable to expect that their bricks could perform the same task as the imported bricks.
It also seems that the decision to purchase the imported bricks was a commercial decision based on their proven reliability and the recommendation of the Finnish smelter designer. However, this is not a factor in determining suitable equivalence of the local product.
In administering the by law criteria at that time the Department interpreted the term 'suitably equivalent' as meaning broadly capable of fulfilling the function for which the goods are required. It is considered that the broad range of industries using Harbison/Heat Containments' bricks (including the steel, alumina, cement and non-ferrous metals industries) confirms the Department's earlier decision that they are suitably equivalent to the imported bricks.
Against this background, I am satisfied that the local product meets the terms of both judicial interpretations of 'suitably equivalent'.
At no time has any evidence been put forward to show that a nickel smelter is unique in its requirements for refractory bricks. The two critical areas previously mentioned, the reaction shaft and the hearth are acknowledged as being areas where local bricks could not be used.
Although the risk of a closedown because of a failure of the bricks and the subsequent costs is a critical factor in the decision to purchase the refractory bricks, the same is true for furnaces, converters and smelters in other industries. Heat Containment have a well established name in the industry for supplying refractory bricks to many critical areas of operation.
In view of the above, it has been concluded that the local refractory bricks offered by Harbison ACI (now Heat Containment Industries) were suitably equivalent to the Veitscher bricks in terms of item 19 of Schedule 2 to the Customs Tariff Act and the original decision to refuse by law is therefore maintained."
It is in respect of Mr Chesworth's decision that the applicant now seeks an order of review.
Curiously, neither Mr Senior nor Mr Chesworth made an affidavit detailing the matters which were taken into account. Copies of Mr Senior's notes and minutes were, however, provided to the applicant and they were adduced in evidence on its behalf. The applicant also tendered in evidence Mr Chesworth's letter dated 16 July 1986.
It was submitted on behalf of the applicant that Mr Chesworth had no jurisdiction to make the decision under review. As has already been mentioned, the legislation in force at the time Mr Chesworth made the decision vested the power to make a by-law or determination in the respondent and Mr Chesworth made the decision as the respondent's duly authorised delegate. The argument for the applicant laid emphasis on the circumstance that the order of the Full Court, in terms, remitted the matter to the Minister for Industry and Commerce for reconsideration. The argument, however, did not go so far as to assert that the Minister was obliged personally to consider the matter. It was accepted that it would have been a compliance with the order of the Full Court if the matter had been considered by a person to whom the Minister's power under the unamended provisions had been delegated.
Although the argument has a superficial attraction, I am of opinion that it should not be accepted. A consideration of the transitional provisions contained in s.4 of the Customs Administration (Transitional Provisions and Consequential Amendments) Act 1985 (Cth) makes it plain that it was the intention of the Parliament that any application that was pending and undetermined at the time the amending provisions came into effect was to be determined by the Comptroller-General of Customs, or his delegate, and not by the Minister or his delegate. The order of the Full Court clearly took no account of the amending provisions which were assented to and came into force after the argument before it had concluded and before judgment was delivered. The Court's order is, in my opinion, to be read as requiring that the matter be remitted to the Minister to be reconsidered according to law. At the time the reconsideration of the matter took place, the law required that the power be exercised by the respondent or his delegate and this requirement was fulfilled. As the duly authorised delegate of the respondent, there is, in my view, no doubt that Mr Chesworth had authority to make the decision now under review. The order of the Full Court did not, in my view, require that the matter be dealt with otherwise.
The principal ground on which counsel for the applicant relied was that the making of the decision under review was an improper exercise of power in that there had been a failure to take into account relevant considerations. Two particular matters were relied upon.
First, it was said that Mr Chesworth had failed to take into account the fact that in 1981 the Harbison bricks had not been proved in service. In support of this submission, counsel relied upon that part of Mr Chesworth's letter dated 16 July 1986 which, after referring to the interpretation placed by the Full Court on the expression "a suitable equivalent", continued:
"However, I am led to believe that only actual on-stream production testing can determine whether the bricks perform acceptably in any particular operational situation. This would appear to apply equally to both local and imported bricks. Hence, there would seem no justification for requiring a local manufacturer to provide performance testing results in order to establish the suitable equivalence of local bricks."
It was suggested that this paragraph should be read as denying the proposition that it was a relevant matter for consideration that the Harbison bricks had not been tested in service. So read, the paragraph was said to establish that the decision-maker had failed to take into account the very matter which the Full Court had held to be a relevant consideration.
It may be noted, in passing, that the Full Court expressly limited its reference to the lack of in-service experience to the grade of Harbison bricks known as Nucon 60XD. The Full Court noted that there was no really cogent evidence before the delegates that the Harbison bricks (excluding the grade known as Nucon 60XD) were inferior to Veitscher's bricks and drew attention to the claim by Harbison that their bricks (other than the Nucon 60XD) had in actual recent use in the applicant's flash furnace compared favourably with the imported bricks. The Court stated that there was in the record no disproof of that statement. Equally, there appears to have been nothing before Mr Chesworth to disprove that statement.
Further, Mr Chesworth in his letter dated 16 July 1986 stated categorically that the decisions of Davies J. and of the Full Court had been fully examined and that the points raised had been taken into account. It would be surprising if, in the face of that statement, Mr Chesworth had failed to take into account the very matter which led the Full Court to set aside the previous decision. But, in any event, I am unable to attach to the paragraph in question the significance which counsel sought to place upon it. In my view, all that Mr Chesworth was saying, was that the applicant was not entitled to by-law concession in respect of the imported bricks by reason only of the circumstance that the Australian manufacturer was unable to produce performance testing results. That statement was, I think, correct. In the absence of such results the question remained whether, objectively considered, the Australian product was a suitable equivalent of the imported.
In my opinion, the applicant has failed to establish that the decision-maker failed to take into account that the Nucon 60XD bricks had not actually been in use in either Furnace No.1 or Furnace No.2 or in any similar furnace.
Secondly, it was submitted that the decision-maker had failed to take into account the proven reliability of the imported product. Support for this was said to be found in the following paragraph of Mr Chesworth's letter dated 16 July 1986:
"It also seems that the decision to purchase the imported bricks was a commercial decision based on their proven reliability and the recommendation of the Finnish smelter designer. However, this is not a factor in determining suitable equivalence of the local product."
Counsel submitted that in that paragraph the decision-maker was saying that the proven reliability of the imported product was not a relevant factor to be taken into account.
In my opinion, the paragraph does not have the meaning ascribed to it by counsel. What the decision-maker was identifying as an irrelevant factor was the decision, based on commercial considerations, that the applicant in fact made that it would purchase the imported bricks rather than the local product. Obviously, the relative reliability of the imported and the local product was a matter to be taken into account in determining, objectively, whether the local product was a suitable equivalent of the imported and I do not understand the letter dated 16 July 1986, read as a whole, to be asserting the contrary. The decision to purchase the imported bricks was not, of itself, of significance. What was significant for the decision-maker was the objective material upon which the applicant formed its conclusion as to the relative reliability of the imported and the local product. It cannot, I think, seriously be suggested that Mr Chesworth did not take that material into account in so far as it was identified in what was placed before him.
A further ground relied upon by the applicant was that the making of the decision was an improper exercise of power in that irrelevant considerations were taken into account. It was submitted that the application for by-law concession was to be determined as at the date of the importation of the refractory bricks in June 1981 and that it was irrelevant for the decision-maker to take into account events subsequent to that date, namely the later performance record of the Australian manufacturer. Reference was made to that part of Mr Senior's notes of his visit to Heat Containment Industries Pty Limited which recorded that he was informed of the use of the Australian made bricks in non-ferrous metallurgical industries. It is true to say that the notes which Mr Senior made of his visit to Heat Containment Industries Pty. Limited did not expressly identify the period during which those bricks were supplied. It is also true that in those notes Mr Senior referred to some grades of bricks which were developed after June 1981, that information being no doubt relevant to a consideration of the more recent application for a Commercial Tariff Concession Order. When Mr Senior wrote his submission dated 3 June 1986 he referred to the circumstance that, although Harbison's bricks had been unproven in the applicant's nickel smelter, they had been supplied to other smelters and furnaces operating at equally high temperatures and continued:
"To my mind the fact that HACI had quoted for the reline and that they were also at that time supplying bricks to similar type industries indicates their goods were suitably equivalent" (emphasis added).
The mere circumstance that Mr Senior's visit to Heat Containment Industries Pty. Limited elicited information relating to events subsequent to the date of importation of the bricks in respect of which by-law concession was sought is not sufficient, in my view, to establish that the decision-maker took into account material irrelevant to the decision-making process. But, in any event, even if it be true to say that the decision-maker took into account information concerning the performance after June 1981 of Harbison bricks of the grades which that company proposed should be used in the reline of Furnace No.2, I am not satisfied that that information was irrelevant to the consideration of the question whether, at the time at which the matter was to be determined, the Harbison bricks, considered objectively, would, in the words of the Full Court, perform their intended function about as well as the various grades of bricks ordered from Veitscher. I have no doubt that, if the "trial patches" of Harbison bricks used in the reline of Furnace No.2 had failed to perform satisfactorily, the applicant would have relied, and would have been entitled to rely, on that circumstance in order to support its case that the Harbison bricks were not a suitable equivalent of the imported bricks. Equally, if the bricks performed satisfactorily, that circumstance could not be said to be irrelevant to the question which faced the decision-maker.
In my opinion the applicant has failed to establish this ground.
It was also submitted that it was an irrelevant matter for the decision-maker to take into account that Harbison had, in answer to the applicant's invitation, lodged a tender for the supply of bricks to reline Furnace No.2. I am unable to agree. The weight to be attached to that circumstance is, of course, another matter but that is not a matter of concern to the Court.
Finally, it was submitted that the decision was an improper exercise of the power in that it was so unreasonable that no reasonable person could have made it. In my opinion, that submission lacks substance. I am satisfied that, on the whole of the material before the decision-maker, the view was reasonably open that the Harbison bricks constituted a suitable equivalent for the imported bricks.
For the above reasons, the application is dismissed. The applicant must pay the respondent's costs of the application.
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