DID THE TRIBUNAL ERR?
29 The statement by the Tribunal that the questions arising under ss 94(1)(b)(i) and 94(1)(b)(ii) 'are most conveniently addressed together' could mean that the decision-maker was saying no more than it was expedient to consider the facts giving rise to Isaac Jewellery's application for a grant when considering both subparagraphs. So construed, the Tribunal's decision would be unremarkable. However, the challenged statement is also consistent with another interpretation, namely that the issues arising under both subparagraphs were to be determined against the same criteria. Such a construction would be erroneous since the issues to be determined under each subparagraph require the application of different criteria.
30 The Court infers from the next statement of the Tribunal, namely '[i]n applying s 94, I, as the decision-maker… am required to take into account the Export Market Development Grants (Change in Ownership of Business) Guidelines 2006', that the Tribunal approached the interpretation of ss 94(1)(b)(i) and 94(1)(b)(ii) as if the Guidelines applied to both subparagraphs. By virtue of s 101(1)(d) of the EMDG Act the Guidelines are applicable to s 94(1)(b)(ii) but not to s 94(1)(b)(i).
31 Such construction is reinforced when the Tribunal's findings are considered. Although the issues to be considered under ss 94(1)(b)(i) and 94(1)(b)(ii) are distinct, the Tribunal did not attempt to consider the requirements of the two subsections separately. The Tribunal, in stating that 'I have therefore come to the view, having regard to the factors identified in the Guidelines, that Isaac Jewellery is [sic] neither carries on the same business, or part of the same business, carried on by ABJ…', indicated that it considered that the Guidelines were relevant in determining the question under s 94(1)(b)(i).
32 Further, the Court considers that the Tribunal should not have considered s 94(1)(b)(i) of the EMDG Act in its review of Austrade's decision. The test under s 94(1)(b)(i) requires a factual consideration of whether the new owner is carrying on the business or part of the business. This does not require an investigation of the similarities between the old business and the new business, as subparagraph (i) does not anticipate a new business being in existence. The only question to be considered under such subparagraph is whether the business, previously conducted by its former owner, is being conducted by the new owner.
33 Since there is no issue that the old business, namely ABJ, had ceased to operate, the Tribunal had no reason to consider s 94(1)(b)(i). The issue for determination was whether the new business was similar to the old business as provided for in s 94(1)(b)(ii). This distinction appears to have been overlooked by the Tribunal.
34 The Court therefore concludes that the Tribunal misconstrued and misapplied s 94 of the EMDG Act by failing to perceive that the circumstances to which s 94(1)(b)(i) applied were not relevant to the review before the Tribunal, and further by considering that the Guidelines applied to both ss 94(1)(b)(i) and 94(1)(b)(ii).
35 Isaac Jewellery referred to the fact that Austrade had not drawn such distinctions before the Tribunal. However, the conduct of Austrade before the Tribunal cannot operate as a constraint upon the consequences which flow from a misinterpretation of s 94 of the EMDG Act.
36 The appeal is allowed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.