Eurovox Pty Ltd v Chief Executive Officer of Customs

Conclusion on the appeal 15 The AAT Act does not directly confer jurisdiction on the Tribunal to hear applications for review of any particular administrative decision. Rather by s 25(1)(a) it is provided that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. For present purposes the relevant enactment is the Customs Act which by s 273GA provides that applications may be made to the Tribunal for review of various specified decisions. One of these is "a decision of a collector under s 163 in relation to an application for a refund, rebate or remission of duty": s 273GA(1)(haaa) 16 Section 29 of the AAT Act deals with the manner of applying for review. By s 29(1)(a) an application to the Tribunal for a review of a decision is to be made in writing. It need not necessarily be made in accordance with the prescribed form: s 29(1)(b), but must contain a statement of the reasons for the application: s 29(1)(c). However s 29A provides that unless a fee is waived under the regulations an application for review is not taken to be made unless the prescribed fee (if any) in respect of the application is paid. Section 30 of the AAT Act deals with parties to a proceeding before the Tribunal. By s 30(1), parties to a proceeding before the Tribunal for review of a decision are "(a) any person who being entitled to do so, has duly applied to the Tribunal for a review of the decision; (b) the person who made the decision; (c) if the Attorney-General intervenes in the proceeding under s 30A - the Attorney-General; and (d) any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A)." The lastmentioned subsection is as follows: "(1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding." 17 In my view the Tribunal's construction of the Validation Act was correct. 18 It is not to the point that the Validation Act might have used language such as "Where a person has, before 1 June 1999, made an application to the Tribunal for the review of a decision …". The same concept is clearly conveyed by the words the drafters chose. (An instance of the verb "to seek" being used in the sense found by the Tribunal is to be found in s 45(1)(c)). 19 I do not agree with the argument of senior counsel for Eurovox that in using the expression "sought a review" in s 6(1) Parliament was intending to indicate some wider or more informal meaning in contrast with s 6(2) which refers to pending applications for refund of duty having been "lodged" with a Customs officer before 1 June 1999. 20 I accept that retrospective legislation, being an interference with existing rights, should be construed strictly and that conversely any exception to the terms of retrospective legislation should be construed liberally. But the language of the Validation Act is quite plain. Senior counsel for Eurovax accepted that at the very least there must have been some kind of contact with the Tribunal. The person in question must, before 1 June 1999, have sought to do whatever was necessary to set in train a review by the Tribunal of a decision of the specified kind. 21 But the Eurovox application for joinder did not seek a review of the decision of Customs officer not to pay a refund of duty to Eurovox. In the application form of 27 November 1997 "the decision" referred at the commencement of par 4 is plainly the Pioneer decision. The concluding words of s 6(1) require that the review "sought" by the person must have been capable of being the subject of a Tribunal decision. Unless an application for review (within the meaning of s 29 of the AAT Act) had been made, the Tribunal would have had no jurisdiction to "make a decision on that review" of the Eurovox decision. 22 Moreover, in dealing with s 6(1), the Explanatory Memorandum to the Validations Act refers expressly to "applications for review", and makes it clear that the benefit of s 6(1) was intended to be enjoyed (only) by "those who had exercised their rights to administrative review in relation to these decisions". 23 The application will be dismissed. There will be an order that the applicant pay the respondent's costs, including reserved costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Solicitor for the Applicant: Blake Dawson Waldron

Solicitor for the Respondent: Australian Government Solicitor