GTE (Aust) Pty Ltd v Brown, J.J. [1987] FCA 2

SUITABLE ONLY FOR LIMITED DISTRIBUTION

er FEDERAL COURT OF AUSTRALIA

No. G.146 of 1984

NEW: SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN:

GTE (AUSTRALIA) PTY

LIMITED

Applicant

E z oO

JOHN JOSEPH BROWN

Minister of State for

Administrative Services acting for and on behalf of the

Minister of State for

Industry and Commerce

Respondent

MINUTE OF ORDER OF THE COURT Judge Making Order: Burchett J. Where Order Made: Sydney Date of Order: 6 January 1987 THE COURT ORDERS THAT: (1) The decisions and each of them published in Special

Gazette No. S46 dated 9 February 1984 by Notices 1984/D1, 1984/D2 and 1984/D3 be set aside from and including their date of publication.

(2) Liberty be reserved to the Applicant to apply on 14

days' notice for relief in respect of paragraph 4 of the claims made in the Application.

(3) The Respondent pay the Applicant's taxed costs of and incidental to this application, including the costs of the argument as to the form of the orders.

a Cede)

ook el ad Gn A

te iE rom - 8 JAN 1987

NOTE: Settlement and entry of orders is dealt with of the Federal Court Rules.

40 AUSTRALIA

PRINCIPAL

REGISTAY

FEDERAL COURT OF

"

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G.146 of 1984

ee ew

GENERAL DIVISION

BETWEEN:

GTE (AUSTRALIA) PTY

LIMITED

Applicant

JOHN JOSEPH BROWN Minister of State for Administrative Services acting for and on behalf of the Minister of State for Industry and Commerce

Respondent

REASONS FOR JUDGMENT

BURCHETT J.

On 3] October 1986 I published reasons in this matter in which I held that the Minister, in reaching his decision, had den1red the applicant natural justice, that significant errors of law had occurred in the making of the decision, and that a relevant consideration, which the Minister was bound to take into

account, was not taken into account in the exercise of his powers

under the Customs Tariff (Anti-Dumping) Act 1975. I deferred the

making of orders, and directed the applicant to bring in short minutes of the orders it contended I should make. JI have heard

further argument upon the short minutes submitted.

The ditficulty which was raised concerned the proper

construction of s.16(1)(a) of the Administrative Decisions

(Judicial Review) Act 1977, and its application in _ the circumstances. Counsel for the respondent argued that I should

adopt the view that there 1s in effect a presumption that the

setting aside of a decision should operate only from the date of the order. However, in my dissenting judgment in N.C.A.

(Brisbane) Pty. Ltd. v. Simpson (Full Court, Fox, Neaves and

Burchett JJ., unreported, 19 November 1986) I commented at p.37

on that view:

"With respect, 1n the case where a decision is set aside as not made according to law and the matter is remitted to the decision-maker, I do not think the section evinces an intention to confer some prima facie temporary validity upon the invalid decision. The section embraces a range of situations from the quashing of a decision (which implies wholly expunging it - cf. Commissioner for Railways (NSW) v. Cavanough (1935) 53 C.L.R. 220 at 225) to the setting aside of part only of the decision (which implies at least partial validity)."

It was not necessary for the majority in that case, to consider this question. But it was necessary for it to be considered in

Wattmaster Alco Pty. Limited v. Button (Full Court, Fox, Sheppard

and Wilcox JJ., unreported 18 December 1986). The joint

judgment of Sheppard and Wilcox JJ. at page 8 concludes:

"In our opinion no presumption arises under s.16(1)(a) as to the appropriate date from which a decision should be quashed or set aside. The matter is left entirely to the

' 3.

discretion of the Court. Neither is there

any onus upon any party to demonstrate a special reason for selecting a date other than the date of the order. It 1s for the Court, having regard to all relevant circumstances, to select amongst the alternatives the date which will best do justice as between the parties and any other affected persons."

In the Wattmaster appeal it was pointed out that substantial amounts of dumping duty had been claimed by the Minister, and paid by the appellant, prior to the delivery of the judgment of the Court that the decision to impose the duty was invalid. The requirement to lodge cash securities under s.42 of the Customs

Act 1901, in the present case, produced the same result.

In the circumstances, I do not think it would be a correct exercise of discretion to leave the decision on foot for any period, however brief, which might confer legitimacy upon exactions to which it gave rise. The decision should be set aside entirely, as I have held it was not lawfully made. It

should be set aside as at and from its date.

é On the basis that I should make an order in this form,

the applicant contended that I should also, pursuant' to

s.16(1)(d) of the Administrative Decisions (Judicial Review) Act,

make an order requiring the Minister to refund the amounts of duty levied under the invalid decision. A similar order was sought in the Wattmaster appeal, but the Full Court declined to

make that order, the guestion not having been raised at first

4.

instance. In the present case, though the application sought such an order, no attention was given at the hearing to the issues involved in that aspect of the application. If attention had been given to it, additional evidence must have been called by the applicant, and perhaps also by the respondent. In my view, the lack of that evidence was not remedied by the tender by the applicant, upon the bringing in of short minutes of orders, of further material which, in the particular circumstances, the respondent had then no real opportunity to answer. I think I should at this stage simply set aside the unvalid decision, leaving it to the parties to work out the consequences or to take any further action which may be necessary. But I shall reserve

liberty to the applicant to apply on fourteen days' notice.

Counsel for the respondent submitted that the bringing in of the short minutes prior to the delivery of judgment by the Full Court in the Wattmaster appeal was premature. However, the applicant was in my opinion entitled to the appropriate order in respect of the invalid decision. I think the applicant should have its costs of the application, including the costs of the

argument as to the form of the orders. I shall make orders

accordingly.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for

Judgment herein of his Honour Mr. Justice Burchett.

'agsociate Dated: 6 January, 1987.