McGurk Construction & Rigging Company Ltd v Comptroller-General [1987] FCA 245

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CATCHWORDS

ADMINISTRATIVE LAW - Judicial review - Application for licence to import goods into Australia refused - Meaning of "importation" -

Whether goods imported prior to application for licence being made - Whether regqulatiéns authorise the grant of a licence to

import goods after the goods imported into Australia.

Administrative Decisions (Judicial Review) Act 1977 (Cth), 3.5 Customs Act 1901 (Cth), 3.50, 51, 229(1)(b)

Customs (Import Licensing) Regulations, ss. 7, 8, 11, 17

McGURK CONSTRUCTION AND RIGGING CO. LIMITED v. COMPTROLLER-GENERAL OF CUSTOMS

"= WA G 85 of 1986 Mp" WA G 132 of 1986 af Neaves J. 19 May 1987 Perth : Shadi - . a See se oe

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IN THE FEDERAL COURT OF AUSTRALIA

No. WAG 85 of 1986

WESTERN AUSTRALIA DISTRICT REGISTRY

No. WA G 132 of 1986

GENERAL DIVISION

BETWEEN : McGURK CONSTRUCTION AND RIGGING CO. LIMITED Applicant AND: COMPTROLLER-GENERAL OF

CUSTOMS Respondent

CORAM: Neaves J.

DATE: 19 May 1987

REASONS FOR JUDGMENT

McGurk Construction and Rigging Co. Limited ("the applicant") has applied to the Court under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for orders of review in respect of decisions made on 11 July 1986 and 28 November 1986 respectively by Mr Kho Carl Ling, an officer of the Australian Customs Service and relevantly a delegate of the Comptroller-General of Customs ("the respondent"). Each of those decisions was made under reg.1l of the Customs (Import Licensing) Regulations ("the regulations") made under the Customs Act 1901 (Cth) ("the Act") and refused to grant to the applicant a licence to import into Australia a second hand

Manitowoc 4100W crawler mounted crane. At the hearing the

applicant was primarily concerned to challenge the decision

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made on 28 November 1986 though the chalienge to the earlier

decision was not abandoned.

Sub-section 50(1) of the Act provides that

Governor-General may, by regulation, prohibit

importation of goods into Australia. That power may be

exercised (sub-s.50(2)) -

(a) by prohibiting the importation of goods absolutely;

(Db) by prohibiting the importation of goods from a specified place; or

(c) by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

The regulations may provide that the importation of

goods 1s prohibited unless a licence, permission, consent or

approval to import the goods or aclass of goods in which

the

the

the

the goods are included has been granted as prescribed by the

regulations (sub-s.50(3)(a)).

Goods the importation of which is prohibited under

s.50 are prohibited imports (sub-s.51(1)). All prohibited

imports are forfeited to the Crown (s.229(1)(b)).

Regulation 7 of the regulations provides -

"7. The importation of any goods (not being goods which are excepted from the application of these Regulations) is prohibited unless -

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3. (a) a licence under these Regulations to import the goods is in force; and (b) the conditions and restrictions (1f any)

to which the licence is subject are complied with."

By sub-reg.17(1) the Minister may exempt from the application of the regulations any goods or any goods included in a class of goods. By Customs (Import Licensing) Regulations Exemption Notice No. M66 dated 19 March 1985 and

having effect from that date (see Commonwealth of Australia

Gazette No. S102 dated 29 March 1985), the Minister excepted from the application of the regulations all goods other than specified classes of goods. It 1s common ground that the crane in question fell within one of those specified classes so that its importation into Australia was prohibited unless

a licence under the regulations to import 1t was in force.

The basic facts are not in dispute. The applicant was incorporated in New Zealand in 1974 and has since then carrded=0n in that country the business of a construction and rigging contractor. The crane was manufactured in the United States of America. It was imported into New Zealand

in 1975. It was purchased by the applicant in March 1984.

.... Lt.is said to have certain special characteristics, namely

its mobility, its load weight of up to 200 tonnes and its

boom length of 300 feet. [It is also said to be particularly

: sulted for heavy lifts up to 200 tonnes, the exact capacity

of each lift depending on the radius involved. It may also be used in tandem with other cranes to execute lifts in

excess of 200 tonnes.

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The applicant arranged for the crane to be transported by sea from New Zealand to Fremantle, Western Australia. It arrived at the port of Fremantle on or about 23 March 1986 and was landed on or about 26 March 1986. It

remains in storage on the wharf at Fremantle.

Section 68 of the Act provides that, subject to the Act, goods that are imported are required to be entered for home consumption, for warehousing or for transhipment. Sub-section 36(1) of the Act provides that, subject to sub-s.36(2) and s.37 which are not relevant for present purposes, an entry 1n respect of goods that are required or eligible to be entered 1s to be made by the owner of the goods giving to an appropriate Collector of Customs, ina manner prescribed by the regulations, an entry in respect of the goods containing the particulars required by the regulations. On the giving of the entry, the goods are, for the purposes of the Act, to be taken to be entered. Subject

to the Act, where an entry in respect of goods has been made, the Customs may give authority in accordance with the regulations for those goods to be dealt with in accordance

with that entry (sub-s.39(1)).

The evidence does not disclose whether the applicant purported to make an entry in respect of the crane or whether, if 1t did so, the Customs regarded the crane as goods not eligible to be entered. It 1s clear, however,

that the Customs took the view that the importation of the

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crane was prohibited unless a licence under the regulations was in force at the time of importation and that no such licence was then in force. The crane clearly remains

subject to the control of the Customs pursuant to 5.30 of

the Act.

By application dated 12 June 1986 the applicant applied, pursuant to reg.8 of the regulations, for a licence to import the crane. The application sought a licence of unlimited term or, alternatively, a licence for a minimum term of five years. It was stated in the application that the applicant contemplated that the crane, upon its due importation into Australia, would be hired to contractors in Western Australia for use in connection with a number of major construction projects where there was said to bea need for a srane of the special characteristics and specifications of the crane in question. It was asserted that cranes with specifications and characteristics similar to those of a Manitowoc 4100W crawler mounted crane were not wholly produced in Western Australia in the normal course of business. Details were given of inquiries for the hire of the crane which the applicant had received between February 1986 and the date of the application. Those inquiries were said to have resulted because of the unavailability in Western Australia of cranes of similar performance and characteristics. The application set out the material on which the applicant relied as showing the location, availability and mobilisation cost of alternative cranes

with similar performance and characteristics. The

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alternatives were all 'imported cranes with the exception of one which was described as being locally manufactured to the

extent of about 20 per cent of the finished product.

The applicant also said that 1t had made enquiries

to ascertain what cranes of similar specifications to the crane in question were available in Australia and that those enquiries revealed ten cranes none of which was available for hire in Western Australia, none being located in that State. It was said that, if the applicant was to continue 1ts business operations in Western Australia, it would have to purchase a new crane of similar specifications and characteristics from overseas with a delay of between six to

fifteen months. The application concluded -

"The Applicant's enquiries reveal that it is not possible to purchase a second-hand crane of 200 tonnes capacity in Australia at present. The delivery of a new crane of similar capacity ranges from six to 15 months from date of order with prohibitive costs particularly in light of unfavourable foreign exchange movements. The enquiries to the Applicant for the hire of the Manitowoc indicate the present need for a crane of similar capacity for the completion and commencement of construction projects and in particular the north-west shelf natural gas project. The number of cranes of similar capacity available throughout Australia for use in Western Australia is few and the mobilisation and demobilisation costs involved with respect to the use of cranes outside Western Australia add enormously to the project costs within Western Australia. In addition, the grant of an import licence to the Applicant will not involve the loss to Australia of foreign exchange as the only funds which will be sent to New Zealand will be sufficient cash from the hiring of the Manitowoc to cover the transport costs incurred by the Applicant to date. The balance of the cash flow from the hire of the Manitowoc will be and is required urgently by Westside Welders Pty Ltd in

order to fund large Western Australian contracts under negotiation."

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Westside Welders Pty. Limited 1s a company incorporated in Western Australia which 1s involved in steel fabrication and

construction and in which the applicant has, or 1s intended

to have, a substantial beneficial interest.

By letter dated 11 July 1986 Mr Ling informed the solicitors for the applicant that the application for a licence had been refused. After noting that second-hand Cranes were subject to import licensing controls, referring to the terms of reg.7 of the regulations, and noting that

the crane had been imported without a valid licence, the

letter continued:

"Under the existing criteria against which applications for the importation of used, secondhand or disposals equipment are considered, licences are not approved where the goods or goods serving similar functions are being produced or capable of being produced in Australia in the normal course of business. Information available to the Australian Customs Service following extensive industry research indicates that cranes, including those serving similar functions to the Manitowoc 4100W, are

capable of being manufactured locally in the normal course of business.

The points raised in your client's submission have been carefully examined against the general criteria and the special provisions published in Australian Customs Notice 83/273, a copy of which 1s attached for your information. In particular, I have closely considered the applicability of the provision for New Zealand contractors

(paragraph 10, page 3). However, your client and the goods are not capable of satisfying the requirements which are rigidly observed.

Accordingly, I can only advise that the approval of a licence to import the Manitowoc 4100W crawler crane is not appropriate."

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Australian Customs Notice No.83/273 1s headed "Import Licensing Controls - Used, Secondhand or Disposals Earthmoving, Construction and Materials Handling Machinery and Equipment and Four Wheel Drive Vehicles" and bears date 6 December 1983. it refers to the Minister for Industry and Commerce having approved a change in the administration of import licensing controls on a range of used secondhand or

disposals earthmoving and construction equipment.

Paragraphs 5 and 6 read:

"5. In future import licences will not generally be approved where goods or goods serving similar functions are being produced or are capable of

being produced in Australia in the normal course of business.

6. Where an importer considers that goods with particular features or technical capabilities are essential for a particular use the importer must produce evidence, in the form of correspondence exchanged with Australian manufacturers, to indicate that the end use cannot be performed by goods or goods serving similar functions that are being produced or capable of being produced in Australia in the normal course of business. If the importer of the equipment is not the end user, evidence of an order from the end user and the nature of the end use will be required. A licence issued to the importer may be conditioned to allow the equipment to be sold only to the nominated end user for the use specified. The import restrictions are not relaxed to allow

temporary importation of equipment to carry out specific contracts."

Special provisions are made in respect of goods imported

from New Zealand. Paragraphs 10 and 11 of the notice read:

"10. In accordance with the provisions of the Australia New Zealand Closer Economic Relations

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Trade Agreement, licences will continue to be issued to bona fide New Zealand contractors, who have been awarded construction contracts in Australia, for the importation from New Zealand of equipment covered by the controls; provided the equipment was owned by the contractors at the time tenders were submitted; was manufactured in New Zealand or was imported new into New Zealand;

and 1s required to carry out the specific contracts involved.

ll. Under the provisions of the Australia New Zealand Closer Economic Relations Trade Agreement, import licences will be issued on

demand (subject to the conditions set out below) for goods, other than;

- tractors for articulated vehicles designed for highway operation and parts therefor (87.01.310); and

- four wheel drive vehicles (ex 87.02)

The conditions which must be satisfied for the issue of a licence are:-

~ the goods must be of New Zealand or

Australian origin and be exported from New Zealand to Australia; and

- the Collector must be satisfied that the machinery or equipment, if imported when new, would have been eligible for New Zealand preference or are CsicJ eligible for duty free entry as re-imported goods."

Under a sub-heading "Caution to Importers", par.18 provides:

18. THE FOLLOWING ARE NOT CRITERIA FOR DETERMINING ELIGIBILITY FOR AN IMPORT LICENCE -

. Used or secondhand equipment 1s

available immediately overseas, whereas

locally made equipment, although

available at 'normal' delivery times, cannot be obtained by a particular desired date;

. A project to be undertaken may have to be commenced and completed by specified dates;

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- The equipment has already arrived in or 1s in transit to Australia;

- The project 1S @a& major one involving substantial capital expenditure;

An undertaking will be given that the machines will be re-exported when a specific task is completed; or

The equipment 1s the property of a company which uses 1t for work contracted for in any part of the world.

- Contractors submitting tenders for construction work in Australia have, when costing their tenders, assumed that licences will be issued to allow the umportation of secondhand equipment to carry out the contract."

By letter dated 26 August 1986 the solicitors for the applicant requested that a statement in writing be furnished pursuant to sub-s.13(1) of the Judicial Review

Act in respect of the decision dated 11 July 1986. A

statement dated 30 September 1986 was furnished by Mr Ling.

Paragraphs 8 and 9 of the statement read:

"8. An earlier industry survey conducted by the Australian Customs Service had established that goods serving similar functions to the Manitowoc 4100W crane were capable of being produced locally in the normal course of business.

9. Notwithstanding the existence of an Australian crane manufacturing industry, the granting of an import licence would have been possible for equipment imported from New Zealand provided the applicant was a bona fide New Zealand contractor who had been awarded a construction contract in Australia, and provided the equipment was owned by the applicant at the time the tender was submitted; was manufactured in New Zealand or was imported new into New Zealand; and was required to carry out' the specific contract involved. This special provision was in accordance with the terms of the

Australian New Zealand Closer Economic Relations Trade Agreement."

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The statement in par.8 was said to have been based on

Australian Customs Service records on file number C86/32912.

Those records are not in evidence.

The reasons for the decision are set out in pars 13-22 of the statement. For present purposes it is

sufficient to set out pars 17-22. Those paragraphs are in

the following terms:

"17. From the information available to me, and outlined in paragraph 3 above, I formed the opinion that any action to issue an import licence after importation of the crane would have been a breach of regulation 7(a).

18. Notwithstanding my conclusion outlined in paragraph 17 above, I proceeded to examine the applicant's submission academically in order to ascertain whether the issue of a licence would have been otherwise possible under administrative guidelines set out in Australian Customs Notice

number 83/273 (reference paragraphs 7 and 9 above).

19, Due to the existence of a crane manufacturing industry in Australia (reference paragraph 8 above), I formed the opinion that the granting of a licence would not have been appropriate under the normal criterion that a licence was only issued where goods or goods serving Similar functions were not being produced or were not capable of being produced in Australia in the normal course of business.

20. I further considered academically whether the 'special New Zealand provision' could have applied thereby exempting McGurk Construction & Rigging Co NZ Ltd Csicl from the application of

the normal criterion (reference paragraph 9 above).

21. In his [Csicl submission the applicant indicated that he had not been able to negotiate any binding contract in Australia and that the crane was imported for the purpose of looking for work which may or may not have been available in

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Australia. Accordingly, JI formed the opinion that the applicant was not a bona fide New Zealand contractor and had not been awarded any construction contract in Australia. Furthermore, the crane in question was not manufactured in New Zealand and no evidence was provided by the

applicant that 1t was originally imported new inte New Zealand.

22. On the basis of the information available to me at the time the decision was taken on 11 July 1986, I was satisfied that any action to grant McGurk Construction & Rigging Co NZ Ltd Csicd an import licence retrospectively was not consistent with the requirement of regulation 7(a). I was further satisfied that McGurk Construction &

Rigging Co NZ Ltd Csicl would not have been otherwise eligible to be granted a licence to import the Manitowoc 4100W crane under existing administrative criteria had the company applied

for a licence prior to the crane being imported into Australia."

By letter dated 19 November 1986 the solicitors for the applicant requested that the decision to refuse a licence for the importation of the crane be considered by the Comptroller-General of Customs. The request was based on the provisions of Australian Customs Notice No.83/273 specifically referring to the importation of goods from New Zealand. Some additional material was contained in the request. It was stated that the crane had been imported new into New Zealand in 1975. It was also stated that the applicant had been "awarded contracts with Westside Welders Pty. Ltd. to carry out various contract works for which the Manitowoc is required". Although so described, the contract was in fact an arrangement made on 8 November 1986 for the hire of the crane by Westside Welders Pty. Limited ona monthly basis commencing on 15 December 1986 for the agreed sum of $40,000 per month. It was acknowledged that a formal agreement had not been executed but it was said that the

parties regarded themselves as bound.

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13.

On 28 November 1986 Mr Ling made the second of the decisions the subject of this application, again refusing

the grant of an import licence for the crane.

By letter dated 12 December 1986 the applicant's solicitors requested a statement pursuant to s.13 of the Judicial Review Act in respect of that decision. A statement dated 18 December 1986 was' furnished. The

statement contained the following paragraphs:

"12. I concluded that provisions of paragraph 10 of Australian Customs Notice 83/273 must be read and administered in conjunction with paragraph 7(a) of the Customs (Import Licensing) Regulations. In other words, these provisions are prerequisites for obtaining an import dicence and must be satisfied prior to the goods being imported.

13. I therefore concluded that the fact that the applicant has been awarded work contracts subsequent to the importation of the crane into Australia was nota relevant consideration as there appears to be no statutory basis for the granting of a licence retrospectively. I was satisfied that any contrary decision would not be consistent with the requirements of paragraph 7(a) of the Customs (Import Licensing) Regulations."

For the applicant 1t was submitted that the decision-maker had fallen into error in concluding that the regulations, on their proper construction, precluded the grant of a licence for the importation of the crane. The principal argument advanced to support this proposition

accepted that the regulations do not permit the grant of a

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licence in respect of goods after the importation of those goods into Australia but it was submitted that, in its context, the word "importation" in reg.7 is to be read as referring to the processing of goods through the various stages set out in Part IV of the Act. That Part relates to "The Importation of Goods" and is divided into five divisions, the respective headings of which are "Preliminary", "Prohibited Imports", "The Boarding of Ships and Aircraft", "The Report of the Cargo" and "The Entry,

Unshipment, Landing, and Examination of Goods".

Counsel for the applicant acknowledged that the meaning of "importation" had been considered in a number of cases. He referred to Lyons v. Smart (1908) 6 C.L.R. 143 at p.150; Wilson v. Chambers (1926) 38 C.L.R. 131 at pp.135-6,

138-9, 146-7, 150; Election Importing Co. Pty. Ltd. v.

Courtice (1949) 80 C.L.R. 657 at pp.661-2; Forbes v. Traders' Finance Corporation Ltd. (1971) 126 C.L.R. 429 at pp.443-4; and The Queen v. Bull (1974) 131 C.L.R.

203. He submitted that those cases were concerned with the meaning of "import" or "importation" in contexts different from that with which the Court is here concerned. Counsel also submitted that the construction given to reg.7 of the regulations by Wilcox J. in Frost v. Collector "f Customs (Qld) (1985) 63 A.L.R. 297 was wrong.

I am unable to accept the applicant's argument. In The Queen v. Bull (supra) Barwick C.J. said at p.212:

15.

"The question 1s not what constitutes importation

in an abstract or universal sense: the question is when, according to the provisions of the Act, are goods imported into Australia. However, in

general, importation of goods, in my opinion, according to the natural meaning of the word, involves landing them, or bringing them within a port for the purpose of landing them in the

country or place in relation to which importation 1s regulated."

Atter examining a number of the provisions of the Act as

then in force, his Honour concluded (at p.215):

"All the provisions to which I have so far referred operate on the footing that importation takes place on entry into port of the goods intended to be discharged from the ship at that port. The requirement of entry of 1mported goods unshipped necessarily denies the proposition that importation only takes place 1m any case when

goods are landed. It seems to me that the conclusion that entry into the port with the intention of being landed constitutes

importation, 1S implicit throughout the reasons for decision in Wilson v. Chambers & Co. Pty. Ltd., and is so expressed in the reasons of individual Justices e.g. (1926) 38 C.L.R. at pp.134, 139."

His Honour then considered, and rejected, the argument put on behalf of the Crown - an argument which has no relevance to the present case - that the importation of goods carried by an overseas ship took place at an earlier point of time, Mamely on the entry of the ship within territorial waters. Menzies J. at p.248, Gibbs J. at pp.254-5 (with whose judgment Mason J. agreed) and Stephen J. at pp.265-6 gave a

similar meaning to the word "importation".

In my opinion, the word "importation" in s.50 of

the Act and in reg.7 of the regulations has its ordinary and

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natural meaning. No sufficient reason has, in my view, been advanced for construing it 1n a different sense. It follows that the crane was imported into Austral*a at the latest on 26 March 1986, a date anterior to that upon which the first

application for an import licence was made.

The question remains whether, notwithstanding that reg.7 1s to be construed in the manner to which I have referred, there 1s power under the regulations to grant an import licence in respect of goods after the time at which

the importation of those goods has taken place.

The text of reg.7 has already been set out. Regulation 8 provides that an application for a licence is to be in accordance with such form as the Minister directs and 1s to be delivered, in such manner as the Minister directs, to the Collector of Customs "at the port at which

it is proposed to import the goods". At the relevant time,

reg.9 provided:

"9, Except -

(a) where the Comptroller otherwise approves; or

(b) where goods in respect of which the licence 1s applied for have been

exported at the date of the application for the licence,

a person shall not apply for a licence to import any goods unless he intends forthwith after the grant of the licence to give to the overseas

supplier firm directions for the exportation to Australia of the goods."

17.

The power to grant or refuse a licence is contained

reg.ll which, at the relevant time, was in the following

terms:

"11. The Comptroller may -

(a) grant a licence in respect of all the goods included in an application for a licence;

(b) grant a licence in respect of part only of the goods so included; or

(c) refuse to grant a licence."

This question was considered by Wilcox J. in Frost

v. Collector of Customs (Qld) (supra).

existence of such a power, his Honour said at pp.306-7:

"The Austrulian Customs Service has apparently been willing to administer the import licensing reguiations upon the basis that an application

for a licence may be lodged, and will be considered upon its merits, after a vehicle has

been imported into Australia. If a licence is then granted, the vehicle is treated as having been lawfully imported into Australia. If a licence is then granted, the vehicle is treated as having been lawfully imported and, subject to payment of any applicable duty, is released to the importer. But it is not easy to see the legal justification for this procedure. The effect of the Act and the regulations is that at the moment of importation, without the requisite licence, the vehicle was forfeited to the Crown: see Burton v. Honan (1952) 86 C.L.R. 169 at 176; Bert Needham Automotive Co. Pty. Ltd. v. F.C.T. (1976) 10 A.L.R. 501 at 506-8; Pearce v. Button (1985) 60 A.L.R. 537 at 554-5. There appears to be no statutory basis for retrospective licences or for waiver of the Crown's title to forfeited goods. It appears that the Customs authorities have developed the practice of modifying the legislative provisions by adopting an attitude

which is generous to importers but unwarranted in law."

Eh EEL, SS PET ae *

In denying the

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18.

It was urged upon me that I should not follow the view expressed by his Honour and conclude that the power to issue an import licence under reg.11l remains available notwithstanding that the goods, as in this case, have been

brought within the limits of a port and, in fact, landed.

The question is one of considerable public importance. At this stage I express no opinion upon it. It may be that it should be the subject of consideration by a Full Court of this Court. I will hear submissions from the parties as to the course which the further hearing of this

matter should take.

I certify that this and the preceding 17 pages are a true copy of the Reasons for Judgment herein of the

Honourable Mr Justice Neaves.

Associate Dated: 19 May 1987

Counsel for the applicant : Mr A.J. Templeman

Solicitor for the applicant : Warren McDonald French & Harrison

Counsel for the respondent : Ms C. Francas

Solicitor for the respondent : Australian Government Solicitor

6 March 1987

Date of hearing

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