Davies Seats Pty. Ltd. v Comptroller General of Customs

Until 13 December 1985, there was in force a Commercial Tariff Concession Order in respect of paper making machines having a wire width of 6 metres or greater, but plainly this would not have applied to the machine ordered by Amcor. The application made 13 November 1985 for a further Order was lodged by Brambles International Freight Pty. Limited ("Brambles"), Amcor's customs agent. The "Precise Description of Goods to be Imported" was shown as "PAPER MAKING MACHINE OF 5.6 WIRE WIDTH" and the "Suggested Commercial Tariff Concession Order Wording" was:

PAPER MAKING MACHINES, HAVING A WIRE WIDTH OF 5.6m OR GREATER INCLUDING INITIAL SPARES,

BUT NOT INCLUDING OTHER PARTS OR COMPONENTS WHEN IMPORTED SEPARATELY.

The "Function that the Goods are intended to Serve" was stated to be:

FOR MAKING WHITE PAPERS FOR THE OFFICE AND COMPUTER PAPERS MARKET.

The rate of duty otherwise exigible was shown in_ the application as 15%, but it is agreed that in view of the special status of Brazil the duty in fact exigible was 10%. The reduction in duty that was sought was to 2%. It was also stated in the application that Amcor had already made contact with the Australian manufacturing company Johns Perry Industries Limited ("Johns Perry"). Johns Perry was a well-known heavy engineer with a business based in Adelaide.

On 1 August 1985, Brambles had written to Johns Perry indicating that Amcor (then styled "APM Limited") would be seeking a Commercial Tariff Concession Order for paper making machinery, being machinery capable of producing 100,000 tonnes per annum of white paper for the computer and office papers market. The letter went on to indicate that but for the wire width, the machinery would be admissible under the current Tariff Concession Order, the width necessitating the making of an application for a further Order. The letter continued:

In order that our application can be processed in accordance with Departmental requirements it would be appreciated if your company could assess and comment from a practical and realistic standpoint in the marketplace as to whether, the importation of a complete paper making machine at concessional rates would be competitive or potentially competitive with paper making machines which may be manufactured in the normal course of business by your company.

You will be aware that Beloit Australia [an error, it is agreed, for "Italy"]

unsuccessfully tendered for the supply of this plant and their offer was based on overseas manufacture.

In this regard we refer to the enclosed Departmental form CTC2 which provides detailed information pertaining to our application and also requires your advice on matters raised in this enquiry.

At a meeting on 30 August 1985 between officers of Amcor and representatives of the Australian Customs Service, it was agreed that the paper making machine to be imported by Amcor would be treated as a single integrated machine and not as a series of individual components, and this agreement was reflected in the terms of the application dated 13 November 1985, which we have set out.

On 20 November 1985, Mr. Olliffe (the second respondent, who had the carriage of the Amcor application in the Concession and Quota Branch of the Australian Customs Service) visited the premises of Johns Perry. One object of the meeting was to discuss Johns Perry's dissatisfaction with the existing Commercial Tariff Concession Order in respect of paper making machines in excess of 6 metre wire width. In addition, there was discussion of the Amcor application. Mr. Olliffe noted that "Johns Perry have indicated a preparedness to accept orders for complete paper making machines, albeit in conjunction with Beloit, USA from which such technology is licenced".

The form CTC2 was completed by Johns Perry and dated 24 January 1986. On the face of the form the "Precise Description of Goods to be Imported" is Item A and is shown as

"PAPER MAKING MACHINE". Item B reproduces the suggested

wording of the Order as shown in the application itself. On

the reverse side of form CTC2 it is stated that Johns Perry does not know any other Australian manufacturer of the goods within the description of the suggested Commercial Tariff Concession Order wording, and that it produces in Australia goods serving similar functions to those goods and accepts or would accept orders for the production in Australia of goods serving similar functions. This material appears in the form of responses "yes" or "no" to printed questions on the form. The form goes on to state "see attached letter". The letter is dated 28 January 1986, and addressed by Johns Perry to Brambles. In it more content is given to the answers to the questions posed on the printed form CTC2. The material part of the letter reads as follows: In answering the questions on the CTC forn, we draw your attention to the following most important comments: (1) In effecting our licence agreement with Beloit International, the Perry Engineering Division has manufactured, or is capable of manufacture of the following components of the paper making machines at our works here at Mile End, Adelaide. (a) Preparation equipment including pulpers, agitators, refiners and tankage.

(b) Fourdrinier (sic] units, but excluding the headboxes.

(c) Press sections including suction tolls and plain paper rolls.

(e) All paper dryers both top and bottom up to 4,000mm face.

(j) Paper machine support structure and machine frames.

(2) AS we have advised you during discussions in our offices, we at Johns Perry would, in conjunction with our technology partner, Beloit International, accept an order for goods serving similar functions to

Several components of a complete paper making machine are currently

(vil) Proprietary equipment such as valves, controllers, etc.

indicating, with respect to the application by Amcor,

received in its technology International, such be supplied by Olliffe wrote to Brambles that,

satisfied that a prima facie case for a concession Order had

On 20 February 1986, Mr. Howlett of Johns Perry telephoned Mr. Olliffe. Mr. Howlett told Mr. Olliffe that officers of Amcor had visited the premises of Johns Perry on 19 February, and that they had been told that:

• . . Johns Perry maintains its stand that we are prepared to accept orders' for complete machines. I hope that we have clarified their understanding of our position - we would be the prime contractor in any order accepted for complete machines...

On 4 March 1986, Mr. Olliffe wrote to Brambles stating that Johns Perry had maintained its position as to its Preparedness "to accept orders for the supply of goods serving similar functions to those for which you sought concessional admission". The letter continued by refusing the application in terms of s.269A of the Customs Act. Brambles then sought a review of Mr. Olliffe's decision by an "internal review group" and submissions were made to the third respondent, Mr. Shakespear.

In a letter dated 11 March 1986, Brambles stated to Mr. Shakespear that Johns Perry and Amcor had over a number of years ". . . entered into many contracts to manufacture various parts of paper making machines and it was in this role that Johns Perry made itself known to the industry. At no time . . . did Johns Perry advise any company in the paper making industry that they could manufacture a paper making machine". Brambles continued:

The manufacture of a complete machine embraces more than mechanical engineering skills, but requires experienced paper

making technological know-how; this we believe Johns Perry do not possess.

It 1s claimed that a licensing arrangement with Beloit International would overcome this problem. Beloit were one of the Companies asked to quote and their quote was for a fully imported machine manufactured in Italy. This demonstrates that Beloit do not appear to have the same understanding as Johns Perry of the arrangement between the two companies.

Additionally if Johns Perry were genuinely in the business of manufacturing complete machines with Beloit then it should have been reflected in the offer made by Beloit

and Johns Perry having made this capability known to the local paper making industry

At the time of ordering and to recent times it was Johns Perry's normal course of business not to quote for complete machines . the manufacture of paper making machines of the larger width is a function outside their normal course of business.

On 2 April 1986, Mr. Jennings of Johns Perry telephoned Mr. Olliffe to inform him that Johns Perry had completed, at the request of Amcor, "a notional factory costing exercise" for a machine Johns Perry would produce on the order of Amcor. In the course of their conversation, Mr. Jennings said, "we are genuinely wanting to get into this sort of market".

On 21 April 1986, Mr. Shakespear wrote to Brambles stating that he endorsed the advice previously given that the case for a concession order had not been established.

There was some debate before us as to whether it was this decision or the earlier decision of Mr. Olliffe which was the relevant decision to attract the operation of the ADJR Act. In our view, and, we believe that in the end this was not

seriously disputed by counsel for either party, the relevant

decision is that of Mr. Shakespear. That decision was made

under delegation from the first respondent and therefore, Pursuant to sub-s. 3 (8) of the ADJR Act, the decision of Mr. Shakespear is to be deemed to be a decision by the Comptroller-General, the first respondent.

In his letter of 21 April 1986, Mr. Shakespear stated:

As you know it is the applicant's responsibility to establish the case for a concession order .. . In this particular case Johns Perry have claimed that they have sufficient resources, expertise and technical knowledge (including, if necessary access to the resources of Beloit International) to place them in a position to be able to accept orders for a paper making machine serving similar functions. Their preparedness to accept an order was said to have been advised you during your discussions, and was later confirmed in writing in their letter to you dated 28 January 1986. Their capabilities were fully tested by Mr. K. Olliffe of this office during an inspection of their manufacturing facilities on 20 November 1985. Mr. Olliffe has reported that in his view the claims are totally justified. Further, Johns Perry have not resiled from their earlier position

Having regard to the claims made by Johns Perry and the evidence gathered by this office regarding Johns Perry's manufacture, and bearing in mind their proven capacity, demonstrated over many years, to produce complex machinery to order, including for the paper making industry, I would have no justification in setting aside their claims.

The Legislation It is appropriate now to turn to the statutory

provisions found in Part XVA of the Customs Act. Part XVA was amended after the making of the decision in respect of which

review was sought (by the Customs and Excise Legislation Amendment Act 1986) but not in a manner presently material.

Sub-section 269G (1) provides that a person may make an application in writing to the Comptroller-General "for a concession order in respect of particular goods specified in the application". The application shall contain such

particulars as are prescribed. The prescription in sub-reg.

181 (1) of the Customs Regulations requires, inter alia:

• a description that adequately identifies the goods (para. (d))

• a description of the function that the goods normally serve (para. (j))

• a description that the applicant considers would adequately identify the goods for the purposes of the making of a concession order (para. (u)).

In the present case, the description which Amcor considered would adequately identify the goods for the purposes of the making of a concession order was, as we have indicated:

PAPER MAKING MACHINES, HAVING A WIRE WIDTH OP 5.6M OR GREATER INCLUDING INITIAL SPARES, BUT NOT INCLUDING OTHER PARTS OR COMPONENTS WHEN IMPORTED SEPARATELY.

(1) Where the Comptroller decides not to make a concession order for which an application ... has been made... he shall, in a prescribed manner, give the applicant notice, in writing, of the decision.

(2) The giving of a= notice under sub-section (1) in respect of a concession order does not prevent the Comptroller giving further consider- ation to the application or applic- ations for that concession order or reversing the decision by reason of which the notice was given.

(1) Subject to this Part where' the Comptroller, after considering an application under section 269G for the making of an order under this section

in respect of particular goods, is satisfied that -

(a) goods serving similar functions to the particular goods are not produced in Australia; and

(b) goods serving similar functions to the particular goods are not capable of being produced in Australia by any person in the normal course of business,

the Comptroller shall make a written order, {to be known as a Commercial Tariff Concession Order,) declaring that the particular goods are goods to which a prescribed item specified in the order applies.

The material underlined and within square brackets was deleted by s. 17 (a) of the Customs and Excise Legislation Amendment Act 1986. The various matters of interpretation are dealt with by s.269B. The relevant provisions are as follows:

(1) In this Part, unless the contrary intention appears -

"application" means an application made under section 269G for a concession order;

"concession order" means a Commercial Tariff Concession Order provided for by section 269C;

"particular goods" includes goods included in a particular class or kind of goods;

"prescribed item" means an item in Part I of Schedule 4 to the Customs Tariff Act 1982 that is expressed to apply to goods that a Commercial Tariff Concession Order declares are goods to which the item applies.

identical goods shall be taken to serve similar functions.

(4) Without limiting sub-section (3), for the purposes of this Part, goods shall be taken to serve similar functions to other goods unless the Comptroller is satisfied that, if both goods were readily available for sale throughout Australia, there would be no significant part of Australia in which there would be significant cross-elasticity of demand between the goods.

(5) For the purposes of this Part, goods, other than unmanufactured raw products, shall not be taken to have been produced in Australia unless -

(a) the goods were wholly or partly manufactured in Australia; and

(b) not less than 1/4 of the factory or works cost of the goods is tepresented by the sum of -

(iii) the factory overhead expenses incurred in Australia in respect of the goods.

(6) For the purposes of this Part, goods shall not be taken to have been partly manufactured in Australia unless at least one substantial process in the manufacture of the goods was carried out in Australia.

(7) For the purposes of this Part, a person shall be taken to be capable of producing goods in the normal course of business if, in the normal course of business, he is prepared to accept orders for the supply of such goods that have been, are being, or are to be, produced by hin.

At first instance, Amcor submitted to his Honour that

there had been a failure to address two essential questions é

which had to be resolved in order properly to deal with the application by Amcor for the Commercial Tariff Concession Order.

First, Amcor submitted that there had been a failure to apply the test required by sub-s. 269B (4) of the Customs Act, that is to say that in comparing the functions of the imported goods to those of the potential local product there had been a failure to address the question whether, if both goods were readily available for sale throughout Australia, there would be significant cross-elasticity of demand between those goods. Secondly, Amcor submitted that there had been a failure to address the question whether, if Johns Perry were to accept an order for the supply of a paper making machine having a wire width of 5.6 metres or greater, acceptance of that order would be in the normal course of the business of Johns Perry.

Amcor failed in its challenge on both of these grounds, and both were put forward on the appeal. We will deal

The decision maker was obliged to consider whether, within the meaning of the legislation, goods serving similar functions to the particular goods specified in the application (i.e. "paper making machines, having a wire width of 5.6m or greater including initial spares, but not including other parts or components when imported separately") were not capable of being produced in Australia by any person in the normal course of business (sub-s. 269C (1) (b), s.269G of the Customs Act).

On the materials before the decision maker, the only candidate

which might merit the description of a person capable of producing the goods in question in Australia in the normal course of business was Johns Perry. That company would be taken to be capable of producing goods in the normal course of business "if, in the normal course of business [it was] Prepared to accept orders for the supply of such goods, that have been, are being, or are to be, produced by [Johns Perry]": sub-s. 269B (7).

Accordingly, in deciding whether Johns Perry was capable of producing goods in Australia in the normal course of business (sub-s. 269C (1) (b)), the decision maker had to determine whether or not, in the normal course of business, Johns Perry was prepared to accept orders for the supply of such goods that had been, were being, or were to be, produced by it. The expression "in the normal course of business" thus appears twice in these steps, but crucially in the second, namely the preparedness to accept orders. The consequence of such preparedness would be an affirmative answer to the question whether goods serving similar functions to the particular goods were capable of being produced in Australia by Johns Perry in the normal course of business: sub-s. 269C (1) (b). The result would then be that the Commercial Tariff Concession Order would not be made.

Sub-s. 269B (7) commences with the words "for the purposes of this Part .. ." and uses the expression "shall be". Sub-s. (3), (4), (5), (6) and (9) are cast in the same form. Counsel for the respondents submitted that sub-s. (7) limited the meaning and effect of sub-s. 269C (1) (b), in the

sense that there was no room left for a meaning to be

attributed in ordinary parlance to the expression therein "not capable of being produced .. . by any person in the normal course of business". The submission was that if a person answered the description in sub-s. 269B (7), that led necessarily to a negative answer to the question of capacity of production posed in sub-s. 269C (1) (b). We accept that

submission, which is consistent with Davies Craig Pty. Ltd. v Comptroller-General of Customs (1986) 68 ALR 105 at 114.

We accept also the submission for the respondents that the closing phrases in sub-s. 269B (7) ("that have been, are being, or are to be, produced by him") and the juxtaposition therein of the expressions "for the supply" and "produced by him", mean that a producer may relevantly be prepared to accept orders for the supply of goods if (i) they are then in stock, (ii) they are then in production, or (iii) they are neither in stock nor yet in production, but to be produced in fulfilment of the very order or orders in question.

However, the preparedness to accept orders of the necessary description must be a preparedness to accept "in the normal course of business". In the present case, the decision maker took the view on the materials before him that Johns Perry satisfied this description. We disagree.

As we have mentioned, in the proceedings below his Honour rejected the submission that the decision maker had failed to consider whether, if Johns Perry were to accept an order for a paper making machine having a wire width of 5.6m, the acceptance of that order would have been "in the normal course of business". On the appeal, the submission was rather

that the decision maker had misconstrued sub-s. 269B (7), and

so made an error of law attracting judicial review: ADJR Act,

sub-s. 5 (1) (£), Peacock v Zyfert (1983) 48 ALR 549, Rheem

Australia Ltd. v Collector of Customs (NSW), (Full Court, 11/3/88, unrep.).

The following passage appears in the cross-examination of the third respondent, Mr Shakespear:

Mr Shakespear, you then say that the basis of your refusal is the preparedness of Johns Perry to accept an order. Is that the basis on which your decision is made, is it?

What considerations did you take into account in that, in that you will recall that it requires you to say that they would accept an order in the ordinary course of business?

On the file there were approaches by the applicant and the applicant's agents to a local manufacturer to ascertain whether or not that local manufacturer was making or capable of making goods serving similar functions. They themselves had been to Johns Perry, and Johns Perry had at some time responded, saying Yes, they do. They would be capable of producing, in other words on the back of the cTC ticket form they had answered Yes to three of the four questions, the fourth one being that they did not know of anybody else. This was from a company which was licensed by an overseas manufacturer of paper making machines, one of - I think it was the ten that is referred to in other affidavits - renowned, world-renowned anyway, makers of paper making machines. And this was based on their being licensed by Beloit to manufacture paper making machines in Australia.

appeared on the face of the record as to the decision making

process on this point. However, we would observe that:

the announced preparedness of Johns Perry to accept an order does not mean that preparedness was in the normal course of its business, there being an

objective element in the expression "in the normal course of business".

the responses indicated by Johns Perry on the CTC form (dated 24 January 1986) have to be read (as the words on the form "see attached letter" indicate) with the lengthy letter of 28 January 1986.

para. (2) of that letter reaffirms that Johns Perry would accept an order only "in conjunction with our technology partner, Beloit International".

later, on 20 February 1986, Mr. Howlett of Johns Perry had told Mr. Olliffe that after a visit by officers of Amcor and Brambles, Johns Perry "maintains its stand that we are prepared to accept orders for complete machines. I hope that we have clarified their understanding of our position - we would be the prime contractor in any order accepted for complete machines".

the reality of Johns Perry's position is probably best summed up in the later statement (on 2 April 1986) by Mr. Jennings of Johns Perry to Mr. Olliffe that "we are genuinely wanting to get into this sort of market".

undertake an order such as that in question here, even in conjunction with one or other of the Beloit companies and even by subcontracting certain components to Beloit, would be an undertaking that might fairly be described as special, exceptional or extraordinary.

(vii) indeed, it was doubtful whether Johns Perry had designed and manufactured any papermaking machine, whatever the size; nor was it clear that it had ever exercised its rights under its arrangements with Beloit.

In those circumstances, we believe 1t would not be accurate to say, within the meaning of sub-s. 269B (7) that Johns Perry was, in the normal course of business, prepared to accept orders for the supply of the goods in question.

The expression "normal course of business" in ss. 269B and 269C invites attention to the many authorities dealing, in a number of statutory contexts, with the expression "ordinary

course of business". Some of these authorities are collected

and discussed in Re Bradford Roofing Industries Pty. Ltd. (In Liguidation) (1966) 84 WN (Pt. (1) (NSW)) 276 at 283-284, and

McDowell and Partners Pty. Ltd. v Button (1983) 50 ALR 647 at 659-661. However, the meaning of the expression "in the normal course of business" as used in sub-s. 269B (7), 1s to be perceived by regard not only to considerations of logic but also to the context and to the general purpose and policy of the provisions of Part XVA of the Customs Act: Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ, at 400-401 per Kitto J.

Further, the use of the adjective "normal" requires one to have regard to a "norm", a term which 1s defined in the Shorter Oxford English Dictionary as "[A] rule or authoritative standard". That dictionary gives the following appropriate definition to the word "normal":

According to or squaring with a norm; constituting, conforming to, not deviating

or differing from a type or standard; regular, usual. .

Thus, the term "normal course of business" cannot be given the wide connotation sometimes given to the expression "ordinary course of business" as, e.g., in Metropolitan Bank of England and Wales Ltd. v H.H. Vivian & Co. Ltd. [1900] 2 Ch 654.

We read the provisions of Part XVA as being concerned with the making of a practical and realistic assessment of the situation as to local manufacturing capability. In a given case, that assessment will produce results that affect the interests of local suppliers and the applicant for the Order, as well as the national exchequer. The expression "in the normal course of business" does not, in our view, have a meaning which precludes a preparedness to take orders for a supply of goods not previously produced by the local supplier. Thus, it may be normal, in the sense of usual or to be reasonably expected, that a particular product line may be developed from an existing range. However, 1t is implicit in the requirement of preparedness to accept orders for particular goods in the normal course of business that the supplier has an ability in the normal course of business to attract such orders; otherwise, it would be difficult to see how the

acceptance of such orders could be part of the norm. The

supplier must be prepared to accept orders in a competitive environment and therefore to supply the goods of acceptable quality, at a competitive price, within a reasonable time and to comply with any other obligations placed upon suppliers of such goods in the normal course of trade.

Accordingly, an exceptional or extraordinary departure from the range and character of orders which the supplier accepted may imply, ex hypothesi, that the acceptance of such an order was not in the ordinary course of business (cf. Saracen Shoe Co. Ltd. v Minister of Customs [1932] NZLR 765 at 775, discussed by Beaumont J. in McDowell and Partners Pty. Ltd. v Button (1983) 50 ALR 647 at 659-661).

It follows that the decision maker fell into error in construing sub-s. 269B (7) of the Customs Act and that this error flowed into the interpretation given sub-s. 269C (1) (b) of that Act. Accordingly, the appellant was entitled to an order for review under the ADJR Act.

We add that in our opinion, Mr. Shakespear did not, as a matter of substance, turn his attention to the issue of preparedness in the normal course of business to accept orders. The material before Mr. Shakespear that Johns Perry was licensed by Beloit International to use its patents and know-how did not, of itself, establish that the acceptance of an order by Johns Perry for the supply of a machine for which the Tariff Concession Order was sought would have been in the normal course of business. It was also, as we have said, left in doubt whether Johns Perry had designed and manufactured any papermaking machine, whatever the size, and even whether Johns

Perry had ever exercised its rights under its arrangements with

Beloit. Moreover, the contention of Johns Perry, stated on more than one occasion, that it would accept or receive an order for the goods "in conjunction with our technology partner, Beloit International" suggests that the acceptance of an order for the papermaking machine may not have been in accordance with the normal course of business. It may not be uncommon for a heavy engineer such as Johns Perry to manufacture equipment different from the equipment previously manufactured by it. But that is not to say that 1t would be in the normal course of business for such a heavy engineer to be given and to accept its first order for the supply of a papermaking machine. We mention these matters solely to show that there were matters of fact which Mr. Shakespear no doubt would have considered in more detail had there not been an

Cross-Elasticity of Demand In the Court below, his Honour rejected a submission

for the appellant that the decision maker had failed to take into account various matters bearing upon the issue of significant cross-elasticity of demand posed by sub-s. 269B (4) of the Customs Act.

The considerations involved in this branch of the case arise from the expression in sub-s. 269C (1) (b) "goods serving similar functions to the particular goods". The "particular goods" are those for which the Commercial Tariff Concession Order is sought, in this case "paper making machines having a wire width of 5.6m or greater including initial spares, but not

including other parts or components when imported separately",

by whomsoever imported and by whomsoever manufactured. It follows that, as his Honour pointed out in his judgment, the decision maker in the present case was to answer the question posed by sub-s. 269 (1) (b) not in relation to the particular machine with 1ts special features characteristics, which Amcor was purchasing from the Brazilian company, but in relation to the class of goods described in the form of words we have set out above.

The decision maker then had to ask whether goods serving similar functions to paper making machines having a wire width of 5.6m or greater and having the function specified in the application were not capable of being produced in Australia by any person in the normal course of business. The expression "goods serving similar functions" is to be read with

sub-s. (3) and (4) of s.269B. Of those provisions, Davies J.

Comptroller-General of Customs (1986) 68 ALR 105 at 114:

That provision [sub-s. 269B (4)] ands. 269B (3), with respect to identical goods, are provisions which were intended by Parliament entirely to govern the question of similar function. Identical goods are deemed to have a similar function. If goods are not identical, the question is to be determined by reference to cross-elasticity of demand.

In other words, I am of the view that Parliament intended by the definitions in s. 269B (3) and (4) to cover the field. Mechanical or physical function is covered by s. 269B (3), which requires identity. If there is not identity in this sense, the issue is to be decided by reference to the requirement of "significant cross-elasticity of demand between the goods", which 1s a market or economic test and not a mechanical or physical test, though the mechanical or physical function of the goods would be a relevant matter to be considered.

In the present case, bearing in mind the width of the description in the application, and the consequence width of the expression "the particular goods" in sub-s. 269C (1) (b), any goods capable of being produced in Australia which answered the description of a paper making machine having a wire width of 5.6m or greater which were intended to serve the function of manufacturing white paper for computer and office use, would be identical goods to the "particular goods", and thus would be taken to serve similar functions for the purposes of sub-s. 269C (1) (b). Therefore, one would not go on to consider issues of significant cross-elasticity of demand pursuant to sub-s. 269B (4).

It follows, in our view, that the decision maker was not bound to take into account any issues arising under sub-s. 269B (4), and that there was no substance in the appellant's submission on appeal that the resolution of the question of whether the goods served similar functions depended upon whether if both goods were readily available, there would be significant cross-elasticity of demand. The submission wrongly assumed a lack of identity between the goods, the subject of

However, for the reasons given on the earlier branch of the case, the appellant is entitled to succeed on the appeal. The appeal should be allowed and the orders made on 10 July 1987 should be set aside. The decision of the first respondent refusing the appellant's application dated 13

November 1985 for a Commercial Tariff Concession Order should

be set aside. The appeilant's application should be referred to the first respondent for further consideration. The respondents should pay the costs of the appellant both of the

I certify that this and the twenty three (23) preceding pages are a true copy of the

Reasons for Judgmenty herein of the Court. Associate: .

Counsel for the Appellant: Dr. P. Buchanan QC with Mr. E.J. Cooper instructed by Messrs. Arthur Robinson &

Hedderwicks. Counsel for the Respondents: Mr. R.R. Tracey instructed by the Australian Government Soliclitor.