Australian Trade Commission v Disktravel [1999] FCA 48

Australian Trade Commission v Disktravel [1999] FCA 48

The appeal was dismissed because the Tribunal correctly directed itself as to the purpose test under s 11Z(8), and its findings on the respondents' purpose and carrying on business were open on the evidence. The Tribunal did not err in applying Nomad and in construing the Licence Agreements as giving the first to fifth respondents relevant ownership of rights under copyright. Section 38 did not apply because the relevant agreements did not have the effect of distributing or transferring expenditure or income, and any re-arrangement of business activity merely placed the respondents in a position to incur expenditure rather than creating an entitlement to a grant by an impermissible...

Jurisdiction
Australia
Judgment Date
05 February 1999
Procedural Posture
Appeal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From a Decision of the Administrative Appeals Tribunal Concerning the Export Market Development Grants Act 1975 (cth) / Federal Court Appeal
Outcome
Appeal dismissed; matter remitted to the Administrative Appeals Tribunal for consideration of outstanding issues.
Legal Topics
['export Market Development Grants' 'qualifying Export Development Expenditure' 'eligible Industrial Property Rights' 'eligible Know How' 'copyright Licensing' 'anti Avoidance Provision' 'administrative Appeals Tribunal Appeal']
['administrative Law' 'trade' 'intellectual Property'] ['export Market Development Grants' 'qualifying Export Development Expenditure' 'eligible Industrial Property Rights' 'eligible Know How' 'copyright Licensing' 'anti Avoidance Provision' 'administrative Appeals Tribunal Appeal']

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Procedural Posture

Appeal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From a Decision of the Administrative Appeals Tribunal Concerning the Export Market Development Grants Act 1975 (cth) / Federal Court Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that the first to fifth respondents incurred expenditure primarily and principally for the purposes required by s 11Z(8) of the Export Market Development Grants Act 1975 (Cth).' 'Whether the Tribunal erred in finding that the first to fifth respondents owned eligible industrial property rights within the meaning of s 11Z(8).' 'Whether the Tribunal erred in concluding that s 38 of the Export Market Development Grants Act 1975 (Cth) had no application.' 'Whether there was evidence of an act done by any of the respondents within the meaning of subss 38(1)(a) or 38(2)(a).']

Ratio Decidendi

The appeal was dismissed because the Tribunal correctly directed itself as to the purpose test under s 11Z(8), and its findings on the respondents' purpose and carrying on business were open on the evidence. The Tribunal did not err in applying Nomad and in construing the Licence Agreements as giving the first to fifth respondents relevant ownership of rights under copyright. Section 38 did not apply because the relevant agreements did not have the effect of distributing or transferring expenditure or income, and any re-arrangement of business activity merely placed the respondents in a position to incur expenditure rather than creating an entitlement to a grant by an impermissible...

Court Disposition

Appeal dismissed; matter remitted to the Administrative Appeals Tribunal for consideration of outstanding issues.

Orders

  • ['The appeal be dismissed.' "The applicant pay the respondents' costs of the application." 'The matter be remitted to the Administrative Appeals Tribunal for consideration of outstanding issues.']