1. Delete paragraph 2(b) of the decision and replace with:

(ii) to revoke TCOs 0511358, 0511359 and 0511360 and to reissue them as TCOs 0613070, 0613067 and 0613064 respectively;

1. In paragraphs 349, 350, 352, 358, 359 & 360 replace all references to 'valances' with 'sheets and pillow cases'; and
2. Delete the first two sentences of paragraph 87 and replace with:

"Even if Bruck were a producer in Australia of substitutable goods at the time it lodged its request for revocation, General Merchandise went on to contend that, had the relevant TCOs the subject of No V200600759-764 not been in force on that day but had an application for a TCO been lodged on that day, the CEO would have made the TCO. The GMSFC goes on to examine the evidence to support its contention that the application would have met the core criteria."

CATCHWORDS - CUSTOMS - TARIFF CONCESSION ORDERS - applications for revocation - whether persons requesting revocation producers of substitutable goods - whether goods put or capable of being put to a use that corresponds with a use to which the goods the subject of the relevant TCOs can be put- whether goods meet local content test - whether goods meet substantial process test - whether core criteria would have been met if TCOs not in force on days and an application for them had been lodged - decisions set aside.

PRACTICE AND PROCEDURE - summons - grounds on which may be refused.

PRACTICE AND PROCEDURE - whether Tribunal required to pursue all relevant material - whether parties required to produce all relevant material in their custody, possession or control.

PRACTICE AND PROCEDURE - role of party joined - whether required to lodge material in support of the argument it wishes to make.

Acts Interpretation Act 1901, s 46

Administrative Appeals Tribunal Act 1975, ss 2, 2A, 3, 25, 30A, 32, 33, 35, 36, 36B, 36C, 37, 39, 39A, 42A, 43, 59A

Administrative Appeals Tribunal Amendment Act, s 25

Administrative Decisions (Judicial Review) Act 1977, s 5

Broadcasting and Television Act 1942, ss 25, 92F, 94F

Corporations Act 2001, ss 9, 50, 50AAA, 124, 588V-X

Customs Act 1901, ss 132, 132AA, 269B, 269C, 269E, 269D, 269F, 269FA, 269H, 269J, 269L, 269M, 269P, 269Q, 269R, 269S, 269SA, 269SB, 269SC, 269SD, 269SE, 269SF, 269SH, 269SHA, 269SJ, 269SM, 273GA

Customs Tariff Act 1995, ss 3, 7, 15, 16, 17, 18, 20, 22, Schedule 2

Evidence Act 1995, ss 55, 56

Judiciary Act 1903, s 55ZF

Legislative Instruments Act 2003, ss 4, 5, 6, 7, 9, 13

Migration Act 1958, s 420

Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265

Amcor Ltd v Comptroller-General of Customs and Others [1988] FCR 225; (1988) 79 ALR 221

Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250

Australian National University v Burns [1982] FCA 191; (1982) 64 FLR 166

Barrier Reef Broadcasting Pty Ltd v Minister for Post and Telecommunications (1978) 19 ALR 418

Blackwood Hodge (Australia) Pty Ltd v Collector of Customs [1980] FCA 96; (1980) 47 FLR 131

Bogaards v McMahon [1988] FCA 161; (1988) 80 ALR 342

Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd and Another [1999] VSCA 66; [1999] 2 VR 507

Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98

Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691; 2 All ER 576

Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80

Brydges v Brydges and Wood [1909] P 187

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753; 16 AAR 1; 29 ALD 1

Carter v Hayes [1994] SASC 4477; (1994) 61 SASR 451; 72 A Crim R 387

Chandler & Co v Collector of Customs [1907] HCA 81; (1907) 4 CLR 1719

Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901

Chief Executive Officer of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578

Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389; (1996) 141 ALR 59; (1996) 71 ALJR 123

Comcare v Davies [2008] FCA 393

Comcare v Holt [2007] FCA 405; 94 ALD 576

Comcare v Maganga [2008] FCA 285

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185

Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWL 648

Comptroller-General of Customs v Kawasaki Motors Pty Ltd [1991] FCA 519; (1991) 32 FCR 219; 103 ALR 661

Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504

Courtney v Peters [1990] FCA 526; (1990) 27 FCR 404; 98 ALR 645

Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577

Eurovox Pty Ltd v Chief Executive Officer of Customs [2000] FCA 1906

Financial Wisdom Limited v Dale Newman & Ors [2005] VSCA 110; (2005) 12 VR 79

Grant v Repatriation Commission [1999] FCA 1629

Hamilton v Oades [1989] HCA 21; (1988-89) 85 ALR 1

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252

Hunt v Wark (1985) 40 SASR 489

Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529

Irving v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 457; (1993) 44 FCR 540

Kelso v Forward [1995] FCA 1584; (1995) 60 FCR 39

Lucas Industries Ltd. v Hewit (1978) 45 FLR 174

Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39

Mandic v Phillis [2005] FCA 1279; 225 ALR 760

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 619

McColl v Lehmann [1987] VicRp 46; [1987] VR 503; (1986) 24 A Crim R 234

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6

Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139

Noble v Repatriation Commission [1997] FCA 1159

Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 62 ALJR 389

Pancontinental Mining Ltd and Others v Burns and Others

Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203

Pilato v Metropolitan Water Sewerage & Drainage Board (1959) 76 WN (NSW) 364

Polypacific Pty Ltd v Comptroller-General of Customs [1993] FCA 447; (1993) 45 FCR 238

Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155

Precision Data Holdings Ltd v Wills [1992] HCA 28; (1991) 173 CLR 167; 104 ALR 317

Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13; 29 ALR 289

R v Khelawon [2006] 2 SCR 787; (2006) 274 DLR (4th) 385; 215 CCC (3d) 161 (SCC)

R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361

Re Amcor Ltd v Comptroller-General of Customs [1991] FCA 622; (1991) 105 ALR 216; 33 FCR 200

Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696

Re Bird and Military Rehabilitation and Compensation Commission [2006] AATA 109; (2006) 91 ALD 691

Re Dunstan and Comcare [2009] AATA 843

Re General Merchandise & Apparel Group and CEO of Customs [2007] AATA 1138

Re General Merchandise & Apparel Group and CEO of Customs and Australian Weaving Mills [2007] AATA 1139

Re Howard Smith Industries Pty Ltd & Adelaide Steamship Industries Pty Ltd (1977) 28 FLR 385

Re Kenso Marketing (M) SDN BHD and Chief Executive Officer of Customs and Nufarm Australia Limited [2008] AATA 42

Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124

Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262

Repatriation Commission v Hughes [1991] FCA 245; (1991) 23 ALD 270

Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Ltd (1976) 25 FLR 169

Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656; 76 ALR 36

Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558

Re Times Consultants Pty Limited v Collector of Customs (Queensland) [1987] FCA 311

Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262

Re Vulcan Australia and Comptroller of Customs [1994] AATA 150; 20 AAR 116

Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19

Riverwood Cartons Pty Ltd v Chief Executive Officer of Customs & Anor [1997] FCA 817; 77 FCR 493

Rogers v The Queen (1994) 181 CLR 251

Roufos Jewellers of Adelaide Pty Ltd v Malltown Pty Ltd (1980) 27 SASR 270

Sandtara Pty Ltd v Abigroup Ltd (1997) 42 NSWLR 5

Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285

Scott v Handley [1999] FCA 404; (1999) 58 ALD 373

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247

Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521

Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd; Kirby v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710

Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455

Sullivan v Department of Transport (1978) 20 ALR 323

Tedeschi v Legal Services Commissioner (1997) 43 NSWLR 20

Thomson Australian holdings Pty Ltd v Federal Commissioner of Taxation (1988) 20 FCR 85

Times Consultants Pty Limited v Collector of Customs (Qld) (1987) 76 ALR 313

Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90

Tuite v Administrative Appeals Tribunal [1993] FCA 71; (1993) 40 FCR 483

TVW Enterprises Ltd v Australian Broadcasting Tribunal (1986) 11 FCR 293

VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 376

V Roads & Traffic Authority of New South Wales [2006] HCA 27; (2006) 80 ALJR 1100

Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372

Whitton v Falkiner [1915] HCA 38; (1915) 20 CLR 118Witness v Marsden [2000] NSWCA 52

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1

DECISION AND REASONS FOR DECISION [2009] AATA 988

1. in respect of the respondent's decisions
   • (1) dated 28 July 2006:

(a) I note that the effect of my decision is to reinstate TCOs 0511452-5, 0511361 and 0511363; and

(i) to revoke TCOs 0511452, 0511453 and 0511363; and

(ii) to revoke TCOs 0511454, 0511455 and 0511361 and to reissue them as TCOs 0607137, 0607143 and 0607144 respectively; and

(i) the effect of my decision under (1) is that TCOs 0607137, 0607143 and 0607144 have been set aside and so do not remain to be reviewed in the context of the review of this decision; and

(ii) the effect of my decision is to reinstate TCOs 0511357-60; and

(ii) to revoke TCOs 0511358, 0511369 and 0511360 and to reissue them as TCOs 0613070, 0613067 and 0613064 respectively.

This case involves various tariff concession orders (TCOs) for which Sheridan Australia Pty Ltd (Sheridan) initially applied to the Chief Executive Officer of Customs (CEO). Those TCOs related to various products of bed linen. On

20 December 2005, a delegate of the CEO made ten TCOs. Under s 269R(1) of the Customs Act 1901 (Customs Act), the CEO published the TCOs in the Commonwealth of Australia Tariff Concessions Gazette No 06/01 dated 11 January 2006.

2. The publication of the TCOs was followed by various applications to the CEO by Bruck Textiles Pty Ltd (Bruck), General Merchandise and Apparel Group Pty Ltd (General Merchandise) and the Australian Weaving Mills Pty Ltd (AWM). They variously applied for revocation of the TCOs. I have set these out in detail in a table later in these reasons. In summary, General Merchandise lodged six applications on 24 August 2006. It applied for review of the CEO's decision to affirm decisions to revoke three TCOs and to revoke and reissue in narrower terms, a further three after Bruck had applied for their revocation. These applications are the Tribunal's proceedings No. V200600759-764.

3. On 12 September 2006, General Merchandise lodged an additional seven applications in the Tribunal. Three of those applications sought review of the CEO's decisions to revoke four TCOs and another three sought review of his decision to revoke and reissue in narrower terms a further three TCOs. The CEO made those decisions after reviewing earlier decisions made on an application for their revocation by AWM. On its application, I joined AWM as a party to proceedings

No 200601106-1112, which are the applications made by General Merchandise seeking review of the CEO's decisions regarding AWM's applications to revoke seven of the TCOs.

4. At the heart of the various applications is the question whether Bruck or AWM, as the case may be, were producers "in Australia of substitutable goods in relation to the goods covered by the ..." relevant TCOs at the time they lodged their applications for revocation. The timing follows from s 269SC(1) of the Customs Act. In initially requesting revocation of nine of the TCOs,[1] Bruck claimed to be a producer in Australia of goods that were substitutable goods in relation to imported bed linen, being sheets, pillow cases and covers for quilts, doonas and duvets. In making his decision on that request in respect of bed linen, being sheets and pillow cases, the CEO relied on Bruck's Broadcloth and, in respect of covers for quilts, doonas and duvets, relied on Bruck's Santina range of products. In requesting revocation of TCO 0511357 and those listed in B and C of line 5 of the table at [8] below, AWM claimed to be a producer in Australia of goods that were substitutable goods in relation to either imported bed linen, being sheets, pillowcases, quilt covers or doona or duvet covers or to valances, ruffles or curtains.

5. The hearing was listed to begin on 11 May 2009 when a request was made in the afternoon of 7 May 2009 on behalf of the CEO to issue a summons to Bruck. I refused that request on 8 May 2009 and give my reasons below.

6. With regard to the substantive matters, I have decided to revoke the CEO's decisions. The effect of my decision is that TCOs 511452-5, 511357-61 and 511363 are reinstated in their original form as shown in [7] below.

Initial TCOs made by CEO on application of Sheridan

7. After Sheridan applied for various TCOs, the Australian Customs Service (Customs) invited three Australian manufacturers to lodge objections. Only one did so. That objection was later withdrawn and no further objections were received from other Australian manufacturers before the CEO made the TCOs and they were published in the Commonwealth of Australia Gazette (Tariff Concession) No. TC 06/01 (Gazette). They were:

(relates to products made of other textile materials)

(relates to printed products made of man made fibres)

(relates to printed products made of other textile material)

History of subsequent applications to the CEO

8. The applications to, and decisions of, the CEO may be summarised in the following tabular form:

Sheridan Australia Pty Ltd: application for various TCOs

0511452; 0511453 0511454; 0511455 0511357; 0511358 0511359; 0511360 0511361; 0511363

Gazette TC 06/01 under Customs Act, s 269R(1)[3]

0511452 0511453; 0511454 0511455; 0511358 0511359; 0511360; 0511361 0511363.[4]

B. not to revoke:[8] 0511358 0511359 0511360

C. revoke and reissue:[9] 0511454 0511455 0511361

General Merchandise asks CEO to review decisions listed in A. of line 5 to revoke TCOs and decisions listed in C. of line 5 to revoke and reissue TCOs.[10]

AWM applied for revocation of TCO 0511357 and those listed in B and C. of line 5.[11]

(CEO's decision re General Merchandise's application for reconsideration)

Affirmed decisions listed in A. and C. of line 5.[12]

General Merchandise applied to Tribunal for review of CEO's decision to affirm decisions in A. and C. of line 5 (decision in line 8) - AAT No. V200600759-764.[22]

General Merchandise asked CEO to review decisions listed in D. and E. of line 9[23]

Affirmed decisions listed in D. and E. of line 9.[24]

General Merchandise applied to Tribunal for review of CEO's decision to affirm decisions in D. and E. of line 9 (decision in line 12) - AAT No. V200601106-01112.[25]

9. The TCOs revoked and reissued and described in lines 5 and 9 above were:

(relates to printed products made of other textile material)

(relates to printed products made of other man made fibres)

General outline of the scheme for the imposition of customs duties

10. The Customs Act regulates the import of goods into Australia and their export. Part VIII provides for the payment and computation of the duty payable on those goods. In general terms in so far as the import of goods is concerned, the rate of any import duty payable on goods is the rate of the duty in force when they are entered for home consumption.[26] Import is payable at that time of entry.[27] Two relevant factors in assessing the amount of duty payable are the country from which they originated and their value. Part VIII of the Customs Act contains detailed provisions in relation to those factors.

11. The Customs Act does not make provision for a third relevant factor and that is the rate of duty payable in respect of goods. That is left to the Customs Tariff Act 1995 (CT Act) which provides that it imposes duties on goods imported into Australia on or after 1 July 1996 and, if they were imported before that date, entered into Australia or again entered for home consumption on or after that day.[28] Although there are qualifications and exceptions, usually duty in respect of goods is worked out by reference to the general rate set out in the third column of the tariff classification under which the goods are classified.[29] For most purposes, those classifications are set out in Schedule 3 of the CT Act. Goods that originated in particular countries and that are imported into Australia are not considered against the classifications under Schedule 3 but under Schedules 5, 6 and 7. A reference in the CT Act to the tariff classification under which particular goods are classified is a reference to the heading or subheading in whose third column a rate of duty is set out and under which the goods are classified.

12. Section 18 of the CT Act provides for the calculation of concessional duty (rather than under Schedules 3, 5, 6 or 7) if an item in Schedule 4 prima facie applies to the goods. Provision is made in Schedule 4 for concessions of three types: general concessions for prescribed persons, bodies, authorities or countries, general concessions for prescribed classes of goods and other concessions for prescribed goods.

13. The Customs Act requires the CEO on making a TCO, whether a standard TCO or a TCO for goods requiring repair, to declare that the goods the subject of the TCO application are goods to which a prescribed item specified in the order applies. A "prescribed item" is defined to mean "... an item in Schedule 4 to the Customs Tariff Act 1995 that is expressed to apply to goods that a TCO declares are goods to which the item applies." [30] In this way, a TCO made under the Customs Act is given effect under the CT Act. Item 50(1) is the relevant item in this case. It is found in Part III of Schedule 4 and provides concessions for:

"50 Goods that a Tariff Concession Order declares are goods to which this item applies:

Goods other than goods classified under subheading 3817.00.10 of Schedule 3 or heading 3819.00.00 of Schedule 3."

14. Division 2 of that Part sets out the manner in which an application for a TCO may be made and lodged with Customs.[31] Section 269FA provides:

"It is the responsibility of an applicant for a TCO to establish, to the satisfaction of the CEO, that, on the basis of:

(a) all information that the applicant has, or can reasonably be expected to have; and

(b) all inquiries that the applicant has made, or can reasonably be expected to make;

there are reasonable grounds for asserting that the application meets the core criteria."[32]

15. The "core criteria" are the subject of s 269C:

"For the purposes of this Part, a TCO application is taken to meet the core criteria if, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business."

The core criteria leave open two issues: the meaning of the expression "substitutable goods" and of "produced in Australia in the ordinary course of business". I will refer to each of the statutory provisions expanding upon them as well as to the authorities that have considered them.

16. Section 269B(1) contains a definition of "substitutable goods":

"substitutable goods, in respect of goods the subject of a TCO application or of a TCO, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put."[33]

17. In Re Vulcan Australia Pty Ltd and Comptroller-General of Customs and Dimplex Australia Pty Ltd (Party Joined),[34] Messrs Woodard and McLean and I approached the identification of substitutable goods from the meaning of "use":

"44. Many meanings of the word 'use' appear in the dictionaries. That meaning which is relevant in the Shorter Oxford Dictionary ... is that of

'A purpose, object, or end, esp. of useful or advantageous nature ...'. The Macquarie Dictionary ... defines it, again in so far as it is relevant, as

'1. to employ for same purpose; put into service; turn to account:

use a knife to cut, use a new method. 2. to avail oneself of; apply

to one's own purposes: use the front room for a conference ...'

45. What is apparent from both of these definitions is that the focus of the word 'use' when used in isolation without reference to a context is upon the end result i.e. the purpose, object or service. It is not upon the means of achieving that purpose, object or service. If the word is intended to encompass those means, it must come from the context in which the word 'use' appears. When we look at the context in which the word is used in the Act, we can find nothing which suggests that we should give the word 'use' anything other than its ordinary meaning. The definition of substitutable goods refers to 'a use (including a design use) to which (TCO) goods ... can be put'. Clearly, the definition is not simply confining itself to a use for which the TCO goods were designed but is looking to the use to which they can be put. There seems to be no suggestion in this that the means by which that use is achieved have any relevance at all.

46. We also note that the definition refers to the goods produced in Australia being 'put to a use ... that corresponds with a use' to which the TCO goods can be put. Again the emphasis is upon the ultimate use and not the means by which it is achieved and this is not altered by the use of the word 'corresponds'. That word has been defined, again in so far as it is relevant, in the Shorter Oxford Dictionary as:

'1. To answer to something else in the way of fitness; to agree

with; be conformable to; be congruous or in harmony with. 2. To

'1. to be in agreement or conformity (aft. fol. by with or to): his

words and actions do not correspond. 2. to be similar or analogous;

be equivalent in function, position, amount etc ...'

These definitions do focus in part on the function or process but that is not the appropriate focus of the word 'correspond' in the definition of 'substitutable goods'. Reference must be made to the two things which must correspond. Those two things are the use to which the TCO goods can be put and a use of the substitutable goods. The ordinary meaning of 'correspond' in that context is that one use conforms with or is in harmony with the other use. It would be reading too much into the words 'corresponds with' to say that the function or process of the use of one must conform with or be in harmony with the other. It follows that, we can find no suggestion in the definition that the means by which the goods achieve any such use is of any relevance at all. We consider, therefore, that we should give the word 'use' its ordinary meaning.

47. Having done that, we must decide the use (including a design use) to which the goods described in the TCO can be put. We find that they are used for providing domestic space or room heating. In determining their use, we have not included a reference to their use of liquid fuel for that is the means by which they achieve that use and not the use itself. We have reached the same conclusion in respect of their connection to any external fuel although that aspect, in so far as it impinges upon portability, has caused us more concern. We have concluded, however, that the aspect of portability relates essentially to the way in which the TCO goods achieve their overall purpose of providing domestic heating of a space or room rather than to a use to which they can be put."[35]

18. In Riverwood Cartons Pty Ltd v Chief Executive Officer of Customs &

Anor,[36] Goldberg J summarised the issue to resolve in this way:

"'Substitutable goods' are goods produced that are put to a use that corresponds with a use to which the relevant imported goods can be put. There is no requirement that the substitutable goods have only one use. The definition will be satisfied even if the substitutable goods (in this case, corrugated fibre board) have a number of uses, only one of which corresponds with a use to which the imported goods can be put."[37]

19. Section 269D explains when goods are taken to be "produced in Australia":

"(1) For the purposes of this Part, goods, other than unmanufactured raw products, are taken to be produced in Australia if:

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

(b) not less than ¼ of the factory or works costs of the goods is represented by the sum of:

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

(2) For the purposes of this Part, goods are to be taken to have been partly manufactured in Australia if at least one substantial process in the manufacture of the goods was carried out in Australia.

(3) Without limiting the meaning of the expression substantial process in the manufacture of the goods, any of the following operations or any combination of those operations does not constitute such a process:

(a) operations to preserve goods during transportation or storage;

(b) operations to improve the packing or labelling or marketable quality of goods;

(e) operations to mix goods where the resulting product does not have different properties from those of the goods that have been mixed.

(4) For the purposes of this section, the CEO may, by instrument in writing published in the Gazette_:_

(a) direct that the factory or works cost of goods is to be determined in a specified manner; and

(b) direct that the value of Australian labour, the value of Australian materials or the factory overhead expenses incurred in Australia in respect of goods is to be determined in a specified manner;

(5) The provisions of sections 48 (other than those in paragraphs (1)(a) and (b) and subsection (2)), 48A, 48B, 49A and 50 of the Acts Interpretation Act 1901 apply in relation to directions given under subsection (4) as if:

(a) references in those provisions to regulations were references to directions; and

(b) references in those provisions to the repeal of a regulation were references to the revocation of a direction."

20. It is apparent that the term "producer in Australia" of substitutable goods is not defined but s 269D provides the instances in which goods are taken to have been "produced in Australia". They are taken to be of that character if they have been "wholly or partly manufactured in Australia" and certain costs make up not less than one quarter of their cost. In Re Kenso Marketing (M) SDN BHD and Chief Executive Officer of Customs and Nufarm Australia Limited,[38] the Tribunal considered the meaning of "manufacture" in previous authorities at [10], [11] and [18]. It accepted that "... the essence of manufacturing is making 'a different thing from that out of which it is made'."[39] The meaning given to the word "manufacture" in common usage is "... 1 to make something from raw materials, especially in large quantities using machinery. ...".[40]

21. Goods are taken to have been partly manufactured in Australia if at least one substantial process in the manufacture of the goods was carried out in Australia: s 269D(2). Although the expression "substantial process in the manufacture of goods" is not defined in the Customs Act, 269D(3) does exclude from its meaning five types of operations.

22. A "process" is not defined but, in its ordinary meaning, is a reference to "a series of operations performed during manufacture".[41] Given the ordinary meaning of "manufacture" and the policy behind Part XVA of the Customs Act, to which I refer below, the word would seem to be used in its ordinary meaning.

23. Whether a process is a "substantial process" is another matter. In Kenso, Deputy President McPherson considered that the "... question whether under

s 269D(2) a process in the manufacture of goods is 'substantial' depends on the significance or importance of its contribution to the making of a new or different thing."[42]

24. Much earlier, Northrop J had considered the meaning of the adverb "substantially", rather than the adjective "substantial", in Polypacific Pty Ltd v Comptroller-General of Customs.[43] He did so when considering s 269E as it was then enacted to give the Comptroller-General the power to refuse to make a concession order if the "making of the order would be likely to have a substantially adverse effect on the market for any goods produced in Australia." Northrop J referred with approval to a consideration of the latter word in the phrase "a substantial benefit to the public" in s 90(5) of the Trade Practices Act 1974 by the Trade Practices Tribunal (TPT) in Re Howard Smith Industries Pty Ltd & Adelaide Steamship Industries Pty Ltd.[44] The TPT had adopted the meaning to be given to the word "substantial" by a differently constituted tribunal in Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Ltd:[45]

"The benefit must be 'substantial'. It must be 'considerable', 'large', or 'weighty'. It need not, it is plain, be necessarily capable of quantitative assessment; but it should be sufficiently definable - have sufficient substance - as to permit some factual judgment of its relative importance."[46]

25. What amounts to a "substantial process" has to be considered in light of the policy behind Part XVA of the Customs Act. Certainly, it provides a method by which the normal tariff duties payable on particular goods are at a lower rate or reduced to nil. In a joint judgment in Comptroller-General of Customs v Kawasaki Motors Pty Ltd,[47] Hill and Heerey JJ explained that:

"...a TCO is of general application in the sense that, like the Customs Tariff itself, it applies to goods of a particular description regardless of the identity of the importer, the local manufacturer of competing goods, the suppliers, customers, employees or creditors of such persons or any other person who might be commercially affected.

The regime of customs duties, including variations effected by TCOs, is at any given time the scoreboard of the enduring contest waged between the forces of free trade and protection. As well as the direct commercial interests of the kind mentioned, there are social, political and economic considerations affecting the whole Australian community. The rules of natural justice are in our opinion inapplicable in such a setting."[48]

26. While Northrop J's interpretation was given in the context of a different provision, it was an interpretation of which Parliament can be taken to be aware when choosing to use the word in a later provision. It can also be taken to be aware of the ordinary meaning of the word. Having regard to the words of the particular section and the policy of the Customs Act, it seems to me that a "substantial process" is a process that is regarded as being "considerable in amount, extent, [or] importance ..."[49] when considered in light of all of the processes that are undertaken in the manufacture of the goods. Is that process of relative importance when considered against the whole of the process of manufacture? That can only be judged by having regard to reference points which are determined by the particular processes leading to the manufacture of the particular goods under consideration. Those varying reference points could be monetary,[50] complexity, time or some other factor relevant to the particular manufacture of the goods or some combination of all of them. The reference points will depend very much on the goods said to be manufactured partly in Australia. Whether they are substantial can only be judged against an understanding of the whole process.

27. Section 269E deals with the meaning of the expression "the ordinary

"(1) For the purposes of this Part, other than section 269Q, goods (other than made-to-order capital equipment) that are substitutable goods in relation to goods the subject of a TCO application are taken to be produced in Australia in the ordinary course of business if:

(a) they have been produced in Australia in the 2 years before the application was lodged; or

(b) they have been produced, and are held in stock, in Australia; or

(c) they are produced in Australia on an intermittent basis and have been so produced in the 5 years before the application was lodged;

and a producer in Australia is prepared to accept an order to supply them.

(a) are substitutable goods in relation to goods the subject of a TCO application; and

are taken to be produced in Australia in the ordinary course of business if:

(i) has made goods requiring the same labour skills, technology and design expertise as the substitutable goods in the 2 years before the application was lodged; and

(ii) could produce the substitutable goods with existing facilities; and

(d) the producer is prepared to accept an order to supply the substitutable goods.

made-to-order capital equipment means a particular item of capital equipment:

(a) that is made in Australia on a one-off basis to meet a specific order rather than being the subject of regular or intermittent production; and

(b) that is not produced in quantities indicative of a production run."

28. The expression "ordinary course of business" has been considered in a number of previous authorities. They are not relevant in this case in which I am concerned only with the circumstances set out in s 269E(1). That provision defines and confines the meaning of "ordinary course of business" to two criteria. The first criteria may be any one of those set out in ss 269E(1)(a), (b) or (c) and the second must be that a producer in Australia "is prepared to accept an order to produce them". Cases such as Amcor Ltd v Comptroller-General of Customs[51] and Re Amcor Ltd v Comptroller-General of Customs[52] considered the second criteria when it appeared in a different formulation of s 269B(7) of the Customs Act. It read:

"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 him."

29. In Amcor Ltd v Comptroller General of Customs and Others,[53] the Full Court of the Federal Court constituted by Davies, Morling and Gummow JJ said:

"... [I]t 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. ..."[54]

30. This approach did not find favour with a differently constituted Full Court when it later considered the same issue in Re Amcor Ltd v Comptroller-General of Customs. Specifically, it did not agree with the final sentence in this passage saying:

" No doubt the requirement that the person must be prepared to accept orders for the supply of goods in question imports considerations of practical reality. It could not be met by a person saying that he could accept an order for delivery in 10 years' time. Indeed the concept of accepting orders seems to be introduced by s 269B(7) to provide some practical yardstick against which alleged capability of production can be tested. However, we do not think that comparisons of price or quality are relevant.

The purpose of the Customs Act is to raise revenue and to protect Australian industry against competition from imports. When there is no comparable Australian product being manufactured, or capable of being manufactured, importers and consumers should not be burdened with the payment of duty at the full rate or in appropriate circumstances at all. Hence the mechanism of the TCO is provided by Pt XVA.

In the ordinary case where imports compete with Australian products, price and quality will vary. The imported product, even with a substantially greater price because of duty and other factors, may nevertheless be preferred by the purchaser over the local product because of other considerations such as perceived superior quality. This is a matter for the market place.

Where a TCO is sought, if the decision-maker is not satisfied that goods serving similar functions are not produced in Australia then that is the end of the matter: Comptroller-General of Customs v Kawasaki Motors Pty Ltd [1991] FCA 519; (1991) 103 ALR 661 at 677-9. It is not to the point that goods being produced in Australia, and identical to the imported goods the subject of the TCO application, are more expensive than, or inferior in quality to, the imported goods. Those are matters that are left to the market place.

Likewise, once it is established that although goods are not produced in Australia nevertheless identical goods are capable of being produced in Australia in the normal course of some person's business, we think price and quality comparisons are not relevant."[55]

31. The test in s 269E(1) as it now appears does not require that the person is prepared to accept orders for the supply of the relevant goods "in the normal course of business" or even "in the ordinary course of business". All that is required is that the person is prepared to "accept an order to supply" goods that meet one or other of the three descriptions in ss 269E(1)(a), (b) or (c).

32. Given that s 269E(1)(b) provides that the goods need only have been produced, and held in stock, in Australia, it may be arguable that a person can be held to be prepared to accept an order to supply if able to do so from goods that were produced well before the two or five years referred to in ss 269E(1)(a) or (c) and that have been stockpiled. If that were the argument, presumably there would need to be evidence regarding such matters as whether the producer must be prepared to accept an order to supply an indeterminate number, volume or amount of substitutable goods or whether the producer's preparedness must be ascertained against a background of an order to supply of the sort that would be expected in the normal course of business. That is not a question that I must determine in this case and I do no more than raise it.

The CEO's obligation to screen the application

33. No later than 28 days after a person lodges a TCO application, the CEO must take the following steps prescribed by s 269H(1):

"Not later than 28 days after a TCO application is lodged, the CEO must:

(a) if he or she is satisfied:

• (i) that the application complies with section 269F; and

• (ii) that, having regard to the information disclosed in the application and to the particulars of the inquiries made by the applicant, there are reasonable grounds for believing that the applicant has discharged the responsibility referred to in section 269FA; and

(b) if he or she is not aware of any producer in Australia of substitutable goods;

by notice in writing given to the applicant, inform the applicant that the application is accepted as a valid application; and

(c) if he or she is not so satisfied; or

(d) if he or she is aware of such a producer;

by notice in writing given to the applicant, inform the applicant that the application is rejected and of the reasons for the rejection."

If the CEO does not either accept or reject the application within the 28 day period after the application for a TCO is lodged, Part XVA has effect as if the CEO had, immediately before the end of the period, informed the applicant in writing that the application had been accepted as a valid application.[56]

34. As soon as possible after accepting a TCO application as a valid application, the CEO must publish a notice in the Gazette. That notice must include certain information including the fact that the application has been lodged, the identity of the applicant and a description of the goods including a reference to the Customs tariff classification that, in the opinion of the CEO, applies to the goods. The notice must also invite persons to make submissions if they consider there are reasons why the TCO should not be made. Those persons have 50 days after the date of the gazettal in which to make their submissions.[57] The CEO may not have regard to submissions made outside that period unless he or she invites that person to lodge the submission under s 269M.[58]

35. The CEO is obliged to reject a TCO application if, at any time between its receipt and the making of a TCO, he or she becomes satisfied that the goods to which the application relates are goods in respect of which s 269SJ(1) prevents the making of a TCO.[59] Section 269SJ(1) provides that the CEO must not make a TCO in respect of goods described in terms other than generic terms, described in terms of their intended end use or declared by the regulations to be goods to which a TCO should not extend.

36. If a person lodges a submission within the time limits prescribed, the CEO must give the applicant for a TCO a notice in writing. The CEO must do so within 14 days after the end of the 50 day period. The notice must set out the name and address of each person who has lodged a submission and give a short statement of the grounds on which each submission is based.[60] The applicant is given a period of 28 days after receiving the notice in which to notify the CEO of any proposal to amend the application by altering the description of the goods the subject of the application. If the applicant chooses to amend in this way, he or she must set out the proposed amendment.[61] In proposing the amendment, the applicant must not propose one that would cause the goods to which the application relates to be covered by a different Customs tariff classification to that identified by the CEO in the Gazette under s 296K.[62] The amendment may not do otherwise than narrow the description of the goods as set out in the application.[63]

37. The CEO must consider the proposed amendment within seven days of being notified of a proposed amendment of a TCO application. He or she must consider the proposed amendment to decide whether satisfied that the proposed amendment does not contravene s 269L(3) as described in the previous paragraph of these reasons. If not satisfied, the CEO informs the applicant to that effect[64] and must continue to consider the application as originally made.[65]

38. If satisfied, the CEO must notify the applicant to that effect.[66] He or she must also take steps to notify each person who made a submission of the amended application and must publish notice of it in the Gazette. The CEO must do so within 14 days of becoming satisfied that the proposed amendment does not contravene the requirements of s 269L(3).[67]

39. After being notified of a proposed amendment, a person who has lodged a submission may notify the CEO that he or she no longer objects to the application for a TCO.[68] If such a person does not notify the CEO to that effect, he or she is taken to wish to proceed with the submission as if it were a submission made in respect of the amended application.[69]

Customs may invite other submissions or seek other information, documents or material

40. Section 269M provides, in part:

"(1) If the CEO considers that, in relation to a particular TCO application, a person may have reason to oppose the making of the TCO to which the application relates, he or she may, by notice in writing, invite the person to lodge a written submission with the CEO within a period specified in the notice ending not later than 150 days after the gazettal day.

(4) If the CEO considers that, in relation to a particular TCO application, any person (including the applicant or a person who has lodged a submission with the CEO) may be able to supply information or produce a document or material relevant to the consideration of the application, the CEO may, by notice in writing, request the supply of the information in writing, request the supply of the information in writing or the production of the document or material within a period specified in the notice and ending not later than 150 days after the gazettal day.

(5) If a person refuses or fails to lodge a submission under subsection (1) or to supply information or produce a document or material under subsection (4) within the period allowed but subsequently lodges that submission, supplies the information or produces the document or material, the CEO must not take that submission, information, document or material into account in determining whether to make a TCO.

(6) At any time during the period of 150 days starting on the gazettal day, the CEO may, for the purpose of dealing with a TCO application, and despite section 16 of the Customs Administration Act 1985, give a copy of all, or of a part, of the application to a prescribed organisation with a view to obtaining the advice of the organisation in relation to the question whether there are producers in Australia of substitutable goods."

41. Section 269Q is concerned with the making of a TCO in respect of a TCO application in respect of goods sent out of Australia for repair. The making of a TCO in respect of all other applications is the subject of s 269P. As it is the more general situation with which I am concerned, I will refer only to s 269P. Once it has been accepted as a valid TCO application under s 269H:

"... the CEO must decide, not later than 150 days after the gazettal day, whether or not he or she is satisfied, having regard to:

(a) the application; and

(b) all submissions lodged with the CEO before the last day for submissions; and

(c) all information supplied and documents and material produced to the CEO in accordance with a notice under subsection 269M(4); and

that the application meets the core criteria."[70]

42. Section 269P(2) is concerned with the situation in which the CEO fails to make a decision under s 269P(1) within 150 days of the gazettal day. Should that situation occur:

"... the CEO is taken, for the purposes of subsection (1) , at the end of that period, to have made a decision that he or she is not satisfied that the application meets the core criteria."[71]

43. If satisfied that the application meets the core criteria, the CEO must make a written order declaring that the goods the subject of the TCO application are goods to which a prescribed item specified in the order applies.[72] The TCO must include:

"(a) a description of the goods the subject of the order including a reference to the Customs tariff classification that, in the opinion of the CEO, applies to the goods; and

(b) a statement of the day on which the TCO is to be taken to have come into force; and

(c) if subsection 269SA(1) applies in relation to the TCO - a statement of the day on which it ceases to be in force."[73]

44. The CEO must inform the applicant of the decision made under

s 269P(1) as soon as possible and must also publish it in the Gazette in order to inform all other interested persons.[74] Failure to do so does not affect the validity of the TCO.[75]

45. The general rule is that a TCO is taken to have come into force on the day on which the application for it was lodged or, if more than one application has been lodged, the day on which the earliest application was lodged.[76] A TCO will come into force from a later day if the CEO is satisfied of three things. The first is that the application does not satisfy the CEO that it meets the core criteria. The second is that, after the day the application was lodged but before the CEO made a decision on it, substitutable goods ceased to be produced in Australia. The third is that, had production of the substitutable goods ended on the day the application was lodged, the CEO would have been satisfied that the TCO application met the core criteria. The CEO must make the TCO in accordance with section 269P but the TCO is in force only from the day on which substitutable goods ceased to be produced in Australia.[77]

46. Section 269SB sets out the situation in which a person may apply for the revocation of a TCO. That situation is:

(a) a TCO is in force on a particular day; and

(b) a person claiming to be a producer in Australia of substitutable goods in relation to the goods covered by the order is of the view that if:

• (i) the TCO were not in force on that particular day; and
• (ii) that particular day were a day on which the TCO application was lodged;

the person may request the CEO to revoke the order."[78]

47. Section 269SC(1) goes on to provide for the manner in which the CEO must process a request for revocation of a TCO. No later than 60 days after lodgement of a request for revocation of a TCO and having regard to any information that he or she has requested under s 269SF:[79]

"... the CEO must decide whether or not he or she is satisfied:

(a) that, on the day of lodgement of the request, the person requesting the revocation of the TCO is a producer in Australia of goods that are substitutable goods in relation to the goods is the subject of the order; and

(b) that, if the TCO were not in force on that day but that day were the day on which the application for that TCO was lodged, the CEO would not have made the TCO."[80]

48. If the CEO is satisfied of these matters, he or she must make an order revoking the TCO.[81] If satisfied of the matters but also satisfied that, if the TCO were not in force on the day the request for revocation were lodged and an application for a narrower TCO had been lodged in respect only of goods covered by the TCO that are not produced in Australia by the person making the request, he or she would have made that narrower TCO, he or she must revoke the TCO and, in its place, make a narrower TCO.[82] If not satisfied of the matters in s 269SC(1), the CEO must refuse the request.[83] The dates of effect of each decision are regulated by ss 269SC(6) to (8).

49. Section 269SD refers to revocation at the initiative of the CEO. The CEO may publish a notice in the Gazette that he or she intends to make an order revoking a TCO with effect from a particular day:

(a) a TCO is in force on a particular day: and

(b) the CEO believes that if:

(ii) that day were the day on which the application for the TCO was lodged;

the CEO may, not later than 14 days after that day, publish a notice in the Gazette_:_

(c) declaring his or her intention, subject to subsection (1AB), to make an order revoking the TCO with effect from that particular day (the intended revocation day); and

(d) inviting any person who might be affected by the revocation of that TCO to give a written submission to the CEO within 28 days of the notice concerning the proposed revocation."[84]

50. Section 269SD(1) to (5) set out the circumstances in which the CEO may decide to revoke the TCO and s 269SE sets out the CEO's obligations to inform the applicant of the decision and to publish a notice in the Gazette in order to inform all other interested persons.

Internal review: application in respect of decision on application for TCO or request for revocation of TCO

51. Section 269SH(1) provides that any affected person within the meaning of s 269SH(13) may apply to the CEO for reconsideration of his or her decision on an application for a TCO or on a request for revocation of a TCO. An "affected person" means:

"(a) in relation to a decision on a TCO application:

(i) the applicant for a TCO; or

(ii) any person who lodged a submission before the last day for submissions in relation to the TCO application; or

(iii) any person who, in the opinion of the CEO, was not reasonably able to lodge a submission in relation to the TCO application within 50 days of the gazettal day; and

(b) in relation to a decision on a request for revocation:

(ii) any other person whose interests are affected by the decision made on the request."[85]

52. The affected person making the application for the CEO's reconsideration must do so within 28 days of gazettal of a decision on the TCO application or on the request for revocation of a TCO order.[86] The CEO must publish notice of the request for reconsideration in the Gazette giving full particulars of the request and of the TCO to which it relates.[87]

Internal review: decision in respect of application for review of decision on application for TCO

53. Where the application is made for reconsideration of a decision made on a TCO application:

(b) the submissions, information, documents and materials which the CEO was entitled to take into account in considering the TCO application; and

(c) any new matter produced to the CEO by the applicant for reconsideration which, under subsection (7), the CEO is not prevented from taking into account for that purpose;

must decide, not later than 90 days after the last day for lodgement of the application for reconsideration, whether to affirm the original decision or to substitute any other decision that the CEO might have made."[88]

Internal review: decision in respect of application for review of decision on request for revocation of TCO

54. Where the application is made for reconsideration of a decision on a request for revocation of a TCO:

(b) the information, documents and materials which the CEO was entitled to take into account in considering the request; and

(c) any new matter produced to the CEO by the applicant for reconsideration which, under subsection (7), the CEO is not prevented from taking into account for that purpose;

must decide, not later than 60 days after the last day for lodgement of the application for reconsideration, whether to affirm the original decision or to substitute any other decision that the CEO might have made."[89]

55. Should the CEO fail to make a decision on an application for reconsideration, the CEO is taken to have made a decision to affirm the decision and to have done so at the end of 90 or 60 days, as the case may be, after the application was lodged.[90]

Internal review: material to which CEO may have regard in reviewing either decision on application for TCO or request for revocation of TCO

56. Section 269SH(7) limits the material to which the CEO may have regard in reconsidering a decision made on a TCO application or on a request to revoke a TCO. It provides:

"For the purposes of subsections (4) and (5), the CEO must not take into account any new material that is not produced to him or her by the applicant for reconsideration of an original decision within the period of 28 days after notification of the original decision in the Gazette."

Application to the Tribunal: decisions in respect of which an application for review may be made

57. Section 273GA(1) of the Customs Act provides that an application may be made to the Tribunal for review of, among others:

(n) a decision of the CEO under section 269SH on a reconsideration of a decision of the CEO under subsection 269P(1);[[91]]

(q) a decision of the CEO under section 269SH on a reconsideration of a decision of the CEO under subsection 269SC(1);[[92]]

(r) a decision of the CEO under section 269SH on a reconsideration of a decision of the CEO under subsection 269SC(4);[[93]]

Application to the Tribunal: those who may apply to the Tribunal for review of decisions

58. Section 273GA(6A) goes on to provide that:

"An application may not be made to the Tribunal in respect of a decision under section 269SH on a reconsideration of a decision of the CEO under subsection 269P(1) ... or 269SC(1) or (4) unless the person who makes the application to the Tribunal is:

(a) an affected person within the meaning of section 269SH; and

(b) is adversely affected by the decision on reconsideration."

59. Section 269SHA(1) would appear to contradict s 273GA(6A) in so far as it concerns an application to the Tribunal in respect of a decision made under

s 269SH on a reconsideration of a decision made under s 269P(1). Section 269SHA(1) provides:

"For the purpose of an application to the Administrative Appeals Tribunal under section 273GA for review of a decision under subsection 269SH(1) or (4) (a reconsideration decision), application may be made by any person who is an affected person in relation to that decision within the meaning of subsection 269SH(13)."

60. The first difficulty that I have with this provision is its reference to

s 269SH(1). That subsection makes no reference to the CEO's or anyone else's being able to make a decision. All that it provides is that certain persons may apply to the CEO for reconsideration of a decision on either a TCO application or a request for revocation of a TCO. The CEO's authority to make a decision comes in s 269SH(4).

61. The second difficulty that I have with s 269SHA(1) is that it provides that an application for review in respect of a decision made under s 269SH(4) may be made to the Tribunal by any person who is an affected person within the meaning of

s 269SH(13). Section s 269SH(4) refers to the decision made by the CEO when reviewing a decision made on an application for a standard TCO. A decision made on a TCO application must have been made under s 269P(1). Those who may apply to the Tribunal in respect of a decision under s 269SH on a reconsideration of a decision under s 269P(1) is already the subject of s 273GA(6A). The provisions of

s 273GA(6A) and of s 269SHA(1) are not compatible. Those of s 273GA(6A) are much narrower in that the person must not meet the criteria required by s 269SH, and so those required by s 269SHA(1), but must also be adversely affected by the decision under review.

62. I do not have the same difficulties in relation to an application to the Tribunal for review of a decision of the CEO reconsidering a decision made on a request for revocation of a TCO. There are two separate decisions made under

ss 269SC(1) and (4). Reconsideration of them is the subject of s 269SH(5). Those who may apply to the Tribunal for review of the decision made on a reconsideration of them is the subject of s 273GA(6A) alone. No similar provision appears in

s 269SHA(1) or elsewhere in s 269SHA.

Application to the Tribunal: those who may apply to the Tribunal to be made a party to the proceedings

63. Section 269SHA(3) applies to persons who have not applied to the

Tribunal for review of a reconsideration decision. It provides:

"Any person who had not applied under section 273GA for review of a reconsideration decision but whose interests are affected by the decision (whether or not that person is an affected person within the meaning of subsection 269SH(13)) may apply under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 to be made a party to the proceedings within 60 days of the publication under subsection (2) or within such further period as the Tribunal allows."

Section 269SHA(4) limits the power that the Tribunal has to extend the period of 60 days.

64. Section 269SHA(1) gave the term "reconsideration decision" the meaning of "a decision under subsection 269SH(1) or (4)". As I have said, it seems to me that no decision can be made under s 269SH(1). If that is correct, the provisions of s 269SHA(3) can apply only to an application for review of a reconsideration of a decision made in respect of an application for a TCO. An application for reconsideration of a decision on a request for revocation of a TCO is the subject of s 269SH(5).

Application to the Tribunal: documents on which a party to the proceedings for review intends to rely

65. Section 269SHA(5) again refers to proceedings before the Tribunal for review of a "reconsideration decision". For the reasons I have given, it too must be limited to applications for review of a decision by the CEO reconsidering a decision under s 269SH(4) and so a decision on an application for review of a TCO.[94] Section 269SHA(5) provides:

"Any document on which a party to proceedings for review of a reconsideration decision before the Administrative Appeals Tribunal intends to rely must, subject to the provisions of the Administrative Appeals Tribunal Act 1975:

(a) be filed with the Tribunal; and

(b) be served on the other parties to the proceeding;

not less than 28 days before the date set for hearing, unless the Tribunal makes an order permitting the document to be filed and served within a lesser period or to be introduced at the hearing without being so filed or served."

66. The Tribunal's discretion to make an order permitting the document to be "filed" may only be exercised if it has had regard to whether there was any reasonable cause for the document's not being made available at least 28 days before the date of the hearing.

67. In reviewing each of the decisions either to affirm the decisions to revoke TCOs or to revoke TCOs and reissue them, I need to consider several issues under three main headings:

1. on the day a request for revocation of the relevant TCO was lodged:
   1. was Bruck or AWM a "producer in Australia" of goods that are "substitutable goods" in relation to the goods that are the subject of the relevant TCO; and
2. if the answer to A.1 is "yes":
   1. had the TCO not been in force on that day but had an application for a TCO been lodged on that day, would the CEO not have made the TCO?

i.e. on that day, were "substitutable goods" "produced in Australia in the ordinary course of business" within the meaning of s 269SE(1) of the Act?

1. if the answer to B.1 is "yes" (because the CEO would not have made the TCO because s 269SE(1) was satisfied):
   1. would the CEO have made a narrower TCO had an application been for that narrower TCO been lodged?

THE DOCUMENTS LODGED WITH THE CEO WHEN MADE DECISIONS

68. I will take TCO 0511452 as an example of the documents considered by the CEO when deciding the application made by Bruck to revoke nine TCOs. The letter from Bruck dated 21 February 2006 seeking revocation attached details of nine TCOs, the Tariff Code involved, a description of the goods covered and those of Bruck's manufactured goods affected by the TCOs. Also attached were individual TCO revocation requests and product samples being cuttings and ready made product. The letter then went on to say:

"Bruck Textiles Pty Limited is Australia's largest woven textile manufacturer which weaves, dyes, finishes, coats and contract makes soft furnishing as well as apparel fabrics and products. The above mentioned Tariff Concession Orders, if not revoked would have a significant detrimental effect on our business and in particular our manufacturing undertaken in Wangaratta Victoria. Bruck currently employs 400 plus employees of which 350 are directly involved in the manufacture, warehousing and distribution of products under the tariff codes in question. Should the tariff concession orders not be revoked a large portion of these jobs would be under threat as would the future viability of our manufacturing operations.

Anything other than immediate revocation of the tariff concession orders (or rewording of some of the TCO's as suggested in the individual revocation requests) will as stated above result in significant business loss and subsequently job losses at Bruck, let alone the flow on effects to the Wangaratta and surrounding business community which rely upon Bruck for ongoing work whether it be engineering services and supplies, chemicals and raw materials right down to security and cleaning service.

We have also provided a copy of these revocations to the Textiles, Footwear Industry Association (TFIA) whom we understand will also be lodging objections on behalf of the textiles industry.

69. The request for revocation of TCO 0511452 described the locally produced substitutable goods that were the subject of the request:

"Bruck manufactures two products that represent substitutable goods for goods that are covered under TCO 0511452. These products are:

1. BROADCLOTH - Bruck imports the raw base cloth and then dyes & finishes the fabric ready for use and sale as bed sheeting. The fabric is also suitable and is used for pillowcases. The constitution of the fabric is 50% cotton and 50% polyester.
2. SANTINA - Base cloth is purchased from another Australian company, B and is then made into bed covers/quilts. The goods are then sold to Australian retailers through our Wilsons wholesale division. The construction of the fabric is 45% polypropelene, 35% polyester, 20% cotton."[96]

70. The uses to which the goods claimed to be substitutable goods were put or were capable of being put were:

"1. BROADCLOTH - Goods are directly substitutable for imported bed sheets and pillow cases.

1. SANTINA - Goods are directly substitutable for imported quilt and doona covers."[97]

71. Questions whether the goods are wholly or partly manufactured in Australia and whether the total value of Australian labour, Australian materials and factory overhead expenses incurred in Australia represent at least 25% of the factory or works costs were answered in the affirmative. Instead of inserting the costs per unit for Australian labour, Australian materials, Australian factory overhead expenses and imported content and the percentage of the total costs each represented, reference was made to an Attachment. The costs referred to in the Attachment related to the period July 2005 to February 2006.[98] The first date on which Bruck was prepared to accept an order for goods still in production was 1 January 1998.[99]

72. The Attachment comprises pages 48 to 56 of the T documents V200600761. Their contents are subject to a confidentiality order but may be described as entries from Bruck's computer or that of a related company showing the cost of fabric purchased, the manufacturing cost by an unrelated manufacturer and details of the finished item including the type of fabric, the type of item, its dimensions and its manufacturer. An invoice and packing list from another supplier of fabric was also submitted.[100]

73. On 16 March 2006, Bruck sent invoices to the ACS by facsimile. Those invoices are also subject to the confidentiality order. Each set out the number of items supplied by a local manufacturer, the unit price and a description of each type of item. A coversheet summarised the products manufactured by each local manufacturer and set out the unit cost of each.[101] Similar information relating to another local manufacturer was provided on 5 April 2006.[102]

74. The Executive Director of the Textile & Fashion Industries of Australia Limited wrote to the Australian Customs Service (ACS) on 28 February 2006 expressing its support for Bruck's applications for revocation of the nine TCOs. The letter read in part:

"... Based on information provided by Bruck it clearly produces directly substitutable goods for the products covered under these TCO's and based on further research undertaken by the Council there would seem to exist many small manufacturers of these products in Australia who could also be harmed by the TCO.

At the very least, if the Australian Customs Service (ACS) decides not to agree to the full revocation of the TFIA would argue that the reference to curtains (whether intended to be bed curtains or not) must be removed from the TCO's 0511359; 0511358; and 0511360 to avoid any confusion. By removing this reference the TCO will, based on our understanding of the initial TCO application, accurately reflect its original intent. As such it will provide a benefit to the company importing the bed linen products covered whilst not harming the domestic TCF industry."[103]

75. On 15 June 2006, Mr Gross made a submission on behalf of AWM. He stated that AWM was an Australian manufacturer of substitutable goods in respect of goods covered by each of the nine TCOs of which Bruck had sought revocation. Mr Gross set out the cost per unit of the substitutable goods in relation to Australian labour, Australian materials, Australian factory overhead expenses and Imported Content and the percentage of the total cost represented by each cost.[104]

76. In the initial stages of these applications, I refused an application by Legend Australia Holdings Pty Ltd to be joined as a party[105] to each of the applications. That was on 16 March 2007. Earlier, on 16 January 2007, I allowed an application by AWM to be joined as a party to applications numbered V200601106-01112. AWM did not apply to be joined as a party to proceedings numbered V200600754-759, which had their foundation in applications by Bruck to the CEO for revocation of certain TCOs.

77. In application No. V200600754-759, I restricted access to particular passages in the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents) to the respondent and its legal advisers and officers and to members of the Tribunal and staff of Auscript in the performance of their duties. I made that order on 24 October 2006.

78. On 10 and 27 June 2008 orders partially oral and partially written were made by a differently constituted Tribunal to permit the solicitors and counsel acting for General Merchandise to have access to documents described as "commercial in confidence" and being documents provided to the CEO by AWM and included in the T documents lodged in respect of all applications.

79. I amended the order further on 6 May 2009 to allow the counsel and solicitors acting for General Merchandise to have copies of the documents described as "commercial in confidence" and being documents provided by either Bruck or AWM. Both Bruck and AWM consented to that order.

Directions to lodge Statements of Facts and Contentions, relevant material and witness statements

80. In proceeding No. V200600754-759, a Conference Registrar ordered the CEO to file with the Tribunal and serve on General Merchandise a summary of evidence from all witnesses he proposed to call at the hearing; all reports, records or other documents on which he sought to rely and a Statement of Facts and Contentions. She did so on 19 June 2007. On 10 June 2008, General Merchandise was directed by a differently constituted Tribunal to lodge and serve Statements of Facts and Contentions "together with witness statements from any witnesses upon whose evidence the applicant intends to rely" by 8 July 2008. The CEO was required only to "file and serve a statement of facts and contentions within 28 days of receipt of the applicant's statement". A further direction made on 25 July 2008 amended the date by which General Merchandise had to lodge its material to 31 July 2008. On 7 October 2008, a direction was made that "both parties file and serve a witness statement from any witness whose evidence is to be relied on and any other document to be relied on at a hearing of these applications no later than 28 November 2008." They were also directed to lodge hearing certificates by 12 December 2008. The date for compliance with the first part of the directions was changed to 31 January 2009 in an amended direction dated 3 December 2008 but the date for the lodgement of the hearing certificates remained 12 December 2008.

81. In proceedings Nos. V200601106-01112, all parties, being General Merchandise, the CEO and AWM, were directed to:

"... file and serve a witness statement from any witness whose evidence is to be relied on and any other document to be relied on at a hearing of these applications no later than 28 November 2008."[106]

They were also directed to lodge hearing certificates by 12 December 2008. Similar directions were subsequently made to extend the lodgement and service time to 28 November 2008 and 31 January 2009 although reference was now made to "both parties" rather than to "all parties". It seems to me that the directions should be understood to have referred to "all parties" and that seems to be the way in which they did understand them. The date for the return of the hearing certificates remained unchanged.

The SFC lodged by General Merchandise in applications No. V200600759-764

82. On 8 July 2008, General Merchandise lodged an amended Statement of Facts and Contentions (GMSFC) in accordance with the direction dated 10 June 2008. In relation to TCOs 0511452, 0511452 and 0511363, the GMSFC contended:

"In respect of the Bruck Textiles Application the Applicant contents [sic] that:

(a) the TCOs the subject of the Bruck Textiles Application should not have been revoked as at the time of the Bruck Textiles Application, Bruck Textiles was not a producer in Australia of substitutable goods;

(b) in the alternative, even if Bruck Textiles was a producer in Australia of substitutable goods, neither it nor any other alleged producer, was a producer in Australia of substitutable goods in the ordinary course of business;

(c) in the alternative; if the Respondent found that Bruck Textiles produced certain goods in the ordinary course of business, the Respondent should have revoked the relevant TCOs and made narrower TCOs in their place."[107]

83. The GMSFC then goes on to set out detailed contentions relating to Bruck's claim that it produces dyed fabric ready made for bed sheeting known as "Broadcloth" and said to be substitutable for sheets and pillow cases covered by TCOs 0511452, 0511452 and 0511363. It reads in part:

"29. TCOs numbered 0511452, 0511453 and 0511363 apply to non-printed bed linen being sheets, pillow cases, quilt covers, doona covers and duvet covers made of various substances.

1. It is contented [sic] that the use of these goods is to cover, protect and improve the appearance of bed mattresses, pillows, quilts, doonas and duvets.
2. Bruck Textiles have claimed production of dyed fabric ready made for bed sheeting ('Broadcloth') which is said to be substitutable for sheets and pillowcases covered by TCOs numbered 0511452, 0511452 [sic] and 0511363. Broadcloth is not sold as sheets, pillow cases or any other type of bed linen. Please see page 47 of the Tribunal documents for proceeding number V2006/760 and note the absence of any trim, cut or hemming activities.
3. The steps that would need to be taken to transform Broadcloth into a product that could be used as bed linen include at a minimum trimming, cutting, hemming and packaging.
4. Attached and marked "A" is a copy of a page from Bruck Textiles' website stating that the minimum order for Broadcloth is 300 metres per shade. See also page 90 of the Tribunal documents for proceeding number V2006/760.
5. Mr Sandip Ranjan of Bruck Textiles has confirmed with representatives of the Applicant that whilst Bruck Textiles manufactures certain fabric suitable for making curtains and bed linen, Bruck Textiles does not itself manufacture bed linen, either sheets, pillow cases, quilt, doona or duvet covers (see page 99 of the Tribunal documents for proceeding number V2006/760) .
6. Whilst it is possible that Broadcloth could be further manufactured into a product that may be substitutable for sheets covered by TCOs numbered 0511452, 0511453 and 0511363 , Broadcloth as sold by Bruck Textiles is not substitutable for those products."

84. In relation to the Santina Range produced by Bruck, the GMSFC stated that it too could not said to be substitutable for sheets and pillow cases covered by TCOs 0511452, 0511453 and 0511363:

"39. Bruck Textiles has claimed that it produces quilts and bed covers ('Santina Range') and that these items are substitutable for a quilt cover, doona cover or duvet cover. It is contended that a quilt or a bed cover is not substitutable for a quilt cover, doona cover or duvet cover.

1. A quilt is an item similar to a blanket designed to create warmth. A quilt cover, doona cover or duvet cover is a thin material envelop [sic] with an opening at one end. It is designed to cover, protect and improve the appearance of the item it is covering.
2. A bed cover is an item placed on a bed, primarily for decorative purposes. People do not generally sleep under a bed cover. A quilt, doona or duvet could not be placed in a bed cover. There is no opening on a bed cover to enable this to occur. Whilst it may be possible that a doona inside a doona cover could be put to the same use as a quilt or bed cover, a doona cover on its own could not be put to the same use.

85. TCOs numbered 0511454, 0511455 and 0511361 apply to printed bed linen being sheets, pillow cases, quilt covers, doona covers or duvet covers. The GMSFC states:

"Bruck Textiles has claimed that it produces printed quilts and bed covers ('Moondaisy Range') and that these items are substitutable for quilt covers, doona covers and duvet covers included in TCOs numbered 0511454, 0511455 and 0511361. We refer to and repeat our earlier contention that a quilt or bed cover is not substitutable for a quilt cover, doona cover or duvet cover."[108]

86. The GMSFC then goes on to set out detailed contentions relating to the manner in which each of the Broadcloth, Santina Range and Moondaisy Range is said to satisfy the 25% local content test set out in s 269D(1)(b) of the Customs Act and the substantial process test set out in s 269D(3) for the purposes of s 269D(1)(a) as expanded upon by s 269D(2). Without setting out the detail of the contentions, I note that they addressed the adequacy of the evidence to support the statutory criteria.

87. Even if Bruck were a producer in Australia of substitutable goods at the time it lodged its request for revocation, General Merchandise went on to contend that, had the relevant TCOs the subject of No. V200600759-764 not been in force on that day but had an application for a TCO been lodged on that day, the CEO would not have made the TCO. The GMSFC goes on to examine the evidence to support its contention that the application would not have met the core criteria. Even if, contrary to its contention, Bruck was a producer in Australia of substitutable goods, it has not provided any purchase orders or invoices in respect of the goods it alleges it has supplied. It has not demonstrated that it has the capacity or the infrastructure to accept orders on a realistic commercial basis for bed linen produced in Australia.

88. Even if the CEO would have made TCOs, the GMSFC contended, he should have made narrower TCOs. It does so on the basis that the goods claimed by Bruck to be produced in Australia and to be substitutable goods are designed for use by hospitals, hotels and prisons and so for what it describes as institutional use. Annexure A to the GMSFC is a screen dump from Bruck's website and, in particular, from its entry regarding Institutional Fabrics:

"Domestic and institutional/hospital sheeting as well as fabric for hospital theatre gowns and operating theatre are also manufactured.

Fabrics are made to meet strict performance specifications, including stain release and repellancy [sic].

Barrier Cloth is available ex stock in: Mid Green and Sky Blue.

Broad Cloth is available ex stock in: White, Hospital Blue and Hospital Green. Minimum order 300 mts per shade."

The SFC lodged by General Merchandise in applications No. V200601106-01112

89. The primary contention made by General Merchandise in its GMSFC referred to its earlier contention that the CEO's decision to revoke TCOs 0511454, 0511455 and 0511361 reissue them as TCOs 0607137, 0607143 and 0607144 was incorrect. If the Tribunal agreed with that, the result was that the original TCOs 0511454, 0511455 and 0511361were restored. TCOs 0607137, 0607143 and 0607144 were no longer in existence and so AWM's request for their revocation was without foundation. If that was the case, the CEO could not have made a decision and AWM could not have applied for review. The only recourse open to AWM would have been to request the CEO to revoke TCOs 0511454, 0511455 and 0511361 and, understandably in view of the course of events, this it had not done.[109]

90. Should the Tribunal decide that the CEO's decision to revoke TCOs 0511454, 0511455 and 0511361 reissue them as TCOs 0607137, 0607143 and 0607144 was the correct decision, the GMSFC went on to set out its contentions in relation to whether there are substitutable goods in relation to the goods that are the subject of each TCO. In relation to each TCO, General Merchandise submitted that AWM could not be a producer in Australia of substitutable goods because it now fully imports its bed linen from Asia. In making that contention, General Merchandise relied on a submission made by AWM to the Productivity Commission. That submission, which is Annexure B to GMSFC, was made in March 2003. It reads in part:

"... Australian Weaving Mills Pty Ltd (AWM) as a company has evolved through a series of mergers which during the 80's and 90's saw four formerly independent towel manufacturers come together in one large mill. The result of that was the formation of a large manufacturing facility in Devonport where a textile plant had originally been opened just after the second world war [sic]. The Company currently supplies towels and bed linen to retail and institutional customers.

AWM's core business involves selling towels with annual sales of $37m p.a., 95% of which stems from local manufacture.

AWM also has a bed linen business, sales of which total $8 million. This is now fully imported, having gone through a natural evolution of local manufacture, to a shift offshore to Fiji with intermediate product supplied from Australia, to now being fully imported from Asia. The bed linen business is complementary to the towel business, and derives its market presence by leverage off the towel business.

Thus AWM's total business equates to sales of $45m p.a.

The company employs 275 people in total with 250 of those being based in Devonport, Tasmania. The balance of the workplace is based at the Melbourne sales/marketing office or at interstate selling offices."

91. Apart from AWM's statement to the Productivity Commission, General Merchandise also contended that, in relation to the goods the subject of each of the TCOs, AWM did not satisfy the 25% Local Content Test or the Substantial Process Test. In relation to the Local Content Test, General Merchandise contended that the CEO could not have been satisfied of the accuracy of the material supplied by AWM in support of its request for revocation of the TCOs that are the subject of

Nos. V2006110601112. It supported that contention with an analysis of the material in the T documents. As to the Substantial Process Test, General Merchandise submitted that, even if AWM can satisfy the Local Content Test, the goods cannot be said to have been manufactured in Australia as at least one substantial process is not undertaken in Australia:

"97. It is contented [sic] that even if the Party Joined is able to satisfy the 25% Local Content Test (which is not admitted), the relevant goods are not manufactured in Australia as at least one substantial process is not undertaken in respect of the goods in Australia.

1. The goods are imported as rolls of material. The Party Joined alleges that is merely dyes, cuts and hems the imported material. It is contented [sic] that when compared to other steps in the manufacture of bed linen, such as the weaving of the material, the processes undertaken in Australia are not substantial."[110]

92. If, contrary to its contention, AWM did manufacture in Australia, General Merchandise contended:

1. the goods allegedly produced by AWM in a finished form ready to be used as bed linen are substitutable for the goods described in

TCOs 0607137, 0607143 and 0607144; 2. valances allegedly produced by AWM are substitutable goods for the goods described as valances in TCOs 0511358, 0511359 and 0511360; and 3. the goods allegedly produced by AWM are designed for institutional use and can not be regarded as substitutable for the bed linen being knitted or crocheted sheets, pillow cases, quilt, doona or duvet covers that are the subject of TCO 0511357. Knitted or crocheted bed linen, General Merchandise contended, can be put only to domestic use and not to institutional use as it would not have the durability to sustain the repeated high temperature washing typical of institutional use bed linen.

93. Even if AWM was a producer of substitutable goods, there was no evidence, General Merchandise contended, to demonstrate that it was such a producer in the "ordinary course of business":

"It is contended that the invoices and purchase orders supplied to the Respondent by the Party Joined do not demonstrate that the Party Joined produced in Australia substitutable goods in the ordinary course of business. Neither the relevant invoices nor purchase orders are specifically for bed linen with Australian content. There is no evidence that the relevant invoices and purchase orders were not for the bed linen which the Party Joined admits that it fully imports."[111]

94. On the basis of AWM's SFC, General Merchandise contended:

"72. ... that the Party Joined could not realistically supply quantities of bed linen to the Australian market at a price and/or quality that is commercially accepted. Based on the costings and advertised prices attached to the Party Joined Statement, the Party Joined would be operating at a loss in selling its allegedly Australian produced bed linen.

1. The fact that the Party Joined makes a loss on its allegedly Australian produced bed linen strongly indicates that acceptance of orders for those products would not be part of it [sic] normal commercial practice."[112]

95. With regard to TCOs 0607137, 0607143 and 0607144, the GMSFC contended that, even if AWM is a producer in Australia of substitutable goods in the ordinary course of business, the CEO should have issued TCOs worded more narrowly than those he issued. He should have issued them in terms that require a minimum thread count of 180 threads per 10 square centimetre and a maximum weight of 120 grams per square metre. TCOs in those terms would reflect the fact, as contended by General Merchandise, that the only relevant substitutable goods produced in Australia in the ordinary course of business are bed linen for institutional use.

96. Similar wording could be used to reword TCOs 0613070, 0613067 and 0613064. They were the TCOs reissued after the CEO revoked TCOs 0511358, 0511359 and 0511360.

The material lodged by General Merchandise in support of its application in applications No. V200600759-764 and V200601106-01112

97. On 17 July 2008, General Merchandise lodged unsigned witness statements by Mr Neil Samuel and Ms Heather Collato and indicated that it expected to file a third witness statement by 31 July 2008. It sought an extension of the time within which to comply with its obligations and that time was extended.

98. On 30 January 2009, the solicitors for General Merchandise wrote to the Tribunal advising that it did not intend to lodge further witness statements and that it no longer intended to call two people as witnesses at the hearing. These were people in addition to Mr Samuel and Ms Collato.

99. Mr Samuel is a director of Dryen Australia Pty Ltd (Dryen) and has been for some 26 years. Prior to that, he was a director of Palray and Cardex Group Pty Ltd where he sourced, procured, marketed and sold men's and boy's shirts and knitwear. Dryen is an Australian company specialising in the design, development and supply of home textiles including bed linen. Since 1970, it has been a wholesaler of bed linen to the Australian market.

100. Mr Samuel understood that Bruck had claimed that its Broadcloth, which he understands is sold in rolls, is a substitutable for sheets and pillow cases covered by those TCOs in this case relating to sheets, pillowcases, quilt covers and doona covers. In his view, rolls of fabric cannot, without further manufacture, be put to the same use as finished bed linen. A roll of fabric is usually much longer and may, or may not, be wider than an average bed sheet or pillow case. Depending on its qualities, a roll of material can be used as base material for further manufacture into bed linen or some other product.

101. The steps that must be taken to convert a roll of fabric into a product that can be used as bed linen depends on the type of product and the type of bed linen that is manufactured. Mr Samuel said:

"10. ... If the fabric has already been bleached, dyed and finished, the further manufacture that is required is described as 'cut, make and trim' ('CMT').

1. In respect of sheets and pillow cases the following steps are required:

(a) multiple layers of the material are laid onto a cutting table;

(b) the material is marked where it is to be cut;

(d) the relevant pieces are bundled up together and sent to a sewing room;

(e) in respect of a pillow case the material would be [sic] need to be sewed together so as to form the shape of a pillow case;

(f) in respect of flat sheets the sides and ends of the cut material need to be sewed so that all sides are hemmed to ensure a finished appearance and to avoid fraying; if a decorative large cut and piping is required this would need to be incorporated into the sewing;

(g) tags containing care instructions need to be sewed onto the finished product;

(h) if the sheet is a fitted sheet, elastic must be inserted into the sheet;

(i) if desired, various closures are attached to the pillow case;

(j) the item is trimmed whereby threads are cut from the sheet;

(k) the item goes through quality inspection and is packaged.

1. In my view, due to the level of further manufacture required to a roll of fabric, a roll of fabric cannot be put to the same use as a finished sheet or pillow case. Conversely, a finished sheet or pillow case cannot be put to the same use as a roll of fabric."[113]

102. As to Bruck's Santina and Moondaisy products, Mr Samuel understood that they were described as quilts and bedcovers. He did not believe that quilts and bedcovers can be put to the same use as a quilt cover, doona cover or duvet cover referred to in the TCOs the subject of applications No. V200600759-764 for the following reasons:

"16. A quilt is a different article from a quilt cover. The use of a quilt is to generate warmth and cover a person. A quilt is used in a similar manner to a blanket.

1. A bed cover is commonly known as a bed spread and is a different article from a quilt cover, doona cover or duvet cover. A bed cover is a decorative item that is usually placed on top of a bed and removed prior to a person sleeping on the bed. Bed covers generally come in

(a) Tiered: which has a frill from the top of a made up bed to the floor. This type of bed cover is quilted only on the top of the mattress.

(b) Reverse Sham bed spread: which has an attached panel to put pillows under. This is also quilted.

(c) Throw over bed spread: which is quilted all over. The edge is normally bound with the same fabric.

(d) Comforters: which are the same size as quilt covers but with polyester wadding as filling and quilted.

1. I do not know which type of bed cover Bruck Textiles has claimed to produce.
2. A bed cover is not used to insert a quilt, doona or duvet into because it is permanently encased."[114]

103. Mr Samuel explained the processes leading from the cotton plant to the production of bed linen. That process begins with the harvesting of cotton, its processing and its being spun into a yarn. The cotton yarn is then prepared for weaving by a process of sizing. Sizing, Mr Samuel said, helps to prevent damage to the fabric during weaving and increases efficiency in the weaving process. The yarn in woven on looms and resulting goods are known as griege or grey goods. Griege or grey goods are sent to a finishing plant where they are bleached, pre-shrunk, dyed, printed and given a special finish. The treated fabric is wound onto rolls.

104. The treated fabric is taken and subject to the CMT process i.e. the cut, make and trim process. Mr Samuel said that the most essential transformation in the manufacture of bed linen takes place in the processes leading to the production of that yarn into woven material. Substantial changes do not occur in the subsequent steps. In Mr Samuel's view, the change from griege or grey goods to finished bed linen is not substantial when compared with the other steps in the production of bed linen. The change to finished bed linen is even less when the starting point is not griege or grey goods but fabric that is already dyed.

105. Mr Samuel could not recall ever having received an offer from either Bruck or AWM to supply Dryen with bed linen. He was aware that AWM imports bed linen. Dryen has not undertaken a CMT operation in respect of bed linen since 2003. Based on his experience, Mr Samuel believes that it is not economically viable to produce bed linen in Australia. He noted that the costs set out by AWM in its AWMSFC as its production costs for pillowcases, single sheets and valances do not include its profit margin, administration, selling or marketing costs. He would be surprised if a wholesaler could realistically offer the prices put forward by AWM, plus a profit margin, to the Australian wholesale market.

106. Mr Samuel explained the difference between institutional and domestic bed linen:

"27. Institutions such as hospitals, prisons and military ('Institutions') use bed linen in a different manner to how the bed linen is used domestically. Institutions may launder their bed linen on a daily, [sic] which is usually at high temperature washes ('Institutional Use').

1. Bed linen that is to be put to Institutional Use must be able to sustain frequent high temperature washes and be extremely durable. Bed linen that is able to sustain this treatment is typically of a heavier weight, woven with thicker yarns and is a much coarser fabric than bed linen designed for domestic use.
2. The weight of bed linen designed for Institutional Use is generally a minimum weight of 150 grams per square metre. The thread count of this product is generally a maximum of 150 threads per ten (10) square centimetre.
3. Bed linen designed for domestic use is generally a maximum weight of 120 grams per square metre. The thread count of this product is generally a minimum of 180 threads per ten (10) square centimetre.
4. I do not believe that bed linen designed of [sic] domestic use is durable enough to be put to Institutional Use."[115]

107. Ms Heather Collato has been employed as a Buyer of bed linen for Target Australia Pty Ltd (Target) for the past eight years. Her duties require her to develop, source and buy bed linen and to manage Target's bed linen department including its financials, advertising and staff. She said of Target that it is one of Australia's largest purchasers of bed linen and has sales of bed linen totalling approximately $120,000,000 each year. Before joining Target, Ms Collato had been the Category Manager for Myer Direct for the previous six years. In that position, she was responsible for bed linen as well as other products.

108. Ms Collato gave similar evidence to that given by Mr Samuel with regard to Broadcloth's not being substitutable for the sheets and pillow cases.[116] She said that she would not consider purchasing rolls of fabric to sell in Target stores as a substitute for finished bed linen. Due to the level of further manufacture required, a roll of fabric cannot be put to the same use as a finished sheet or pillow case. Conversely, a finished sheet or pillow case cannot be put to the same use as a roll of fabric.

109. Of a claim that Bruck's Santina and Moondaisy products are substitutable for quilt covers, doona covers or duvet covers coming within the relevant TCOs, Ms Collato said:

"16. I understand that Bruck Textiles have described its Santina and Moondaisy products as 'quilts' and 'bed covers'. I do not believe that 'quilts' and 'bed covers' can be put to the same use as a quilt cover, doona cover or duvet cover.

1. A quilt cover, doona cover or duvet cover is a material envelope with an opening at one end. The use of a quilt cover, doona cover or duvet cover is to cover the item that is placed inside it and thereby avoid the need for regular washing of the item placed inside it. A quilt, doona or duvet is normally placed inside a quilt cover, doona cover or duvet cover.
2. A quilt is a different article from a quilt cover. The use of a quilt is to generate warmth and cover a person. A quilt is used in a similar manner to a blanket.
3. A bed cover is a different article from a quilt cover, doona cover or duvet cover. A bed cover is a decorative item that is usually placed on top of a bed and removed prior to a person sleeping on the bed. Bed covers usually come in 4 different varieties:

(a) Tiered: which has a frill from the top of the mattress to the floor. This type of bed cover is quilted only on the top of the mattress.

(b) Reverse Sham: which has an attached panel to put pillows under.

(c) Throw over: which is quilted all over. The edge is normally bound with the same fabric.

(d) Comforters: which are the same size as quilt covers but with polyester wadding as filling.

1. I do not know of which type of bed cover Bruck Textiles has claimed to produce.
2. A bed cover is not used to insert a quilt, doona or duvet into.
3. I would not purchase bed covers or quilts to sell in Target stores as a substitute for quilt, doona or duvet covers.
4. I would expect that quilts and bed covers to be displayed in a different area of the manchester section of Target stores than quilt, doona or duvet covers."[117]

110. With regard to offers to supply bed linen, Ms Collato said:

"24. I am not aware of any manufacturer of bed linen in Australia that has offered to supply bed linen to Target. I have made relevant enquiries and am not aware of either Bruck Textiles or the Party Joined having offered to supply Australian produced bed linen to Target, Myer or

K-Mart stores. Prior to being informed by the Applicant, I was not even aware that Bruck Textiles or the Party Joined produced bed linen in Australia. I was, however, aware that the Party Joined imports fully furnished bed linen.

1. I do not believe that Bruck Textiles or the Party Joined would have the capacity to accept orders from Target for commercial quantities of Australian produced bed linen.
2. I recall purchasing bed linen from the Party Joined approximately 5-6 years ago. However, that bed linen was fully imported.
3. Schedule A of the Party Joined's Statement of Facts and Contentions dated 7 March 2007 sets out that the Party Joined's production costs of pillowcases, single sheets and valances are $5.03 $15.19 and $18.04 respectively. I note that these costs do not include the Party Joined's profit margin, administration, selling or marketing costs. These prices are at 50-100% higher than the current costs of imported fully finished bed linen. I would be surprised if a wholesaler could realistically offer the aforementioned prices (plus profit margin) to the Australian wholesale market.
4. I have reviewed the prices set out in Schedule A of the Party Joined's Statement of Facts and Contentions dated 7 March 2007 with the advertised prices of bed linen in the Harris Scarfe catalogues attached to the statement. If the Party Joined's disclosed manufacture costs are correct, either the Party Joined or Harris Scarfe must have made a loss on the sale of the Party Joined's products."[118]

111. As to bed linen used for institutional use, Ms Collato's statement was, in substance, the same as that given by Mr Samuel. She added that she would not consider purchasing "bed linen with a count of 150 threads per square centimetre or a weight of 150 grams per square metre"[119] for sale in Target stores as she would not expect Target shoppers to purchase such bed linen for their homes.

The SFC lodged by AWM in applications No. V200601106-01112

112. AWM lodged a Statement of Facts and Contentions on 7 March 2007 (AWMSFC). Its set out various contentions directed to the issues whether there are substitutable goods produced in Australia in the ordinary course of business and, in particular, whether it was a producer of such goods. The AWMSFC referred to schedules under the heading "Evidence of local content". The schedules were:

"(a) Schedule (A) - Product costings with calculation and proportion of local and imported content;

(c) Schedule (B) - Bed Linen Hemming minutes per item;

(d) Schedule (C) - Dye and Chemical costs per linear metre;

(e) Accessories costs (e) material costs of bags, labels, inserts, etc"

113. Schedule A comprises three pages. Each page deals with one of three items: a pillowcase, a single sheet and a single valance. Each specifies material, dyes and chemicals, shrinkage, dyeing labour, dyeing overheads, accessories, waste, hemming labour and hemming overheads. Against each is an indication of whether each is Australian or imported content and, as appropriate, an indication of the material and its cost or a means of calculating the cost of the item as part of the overall cost of the pillowcase, single sheet or single valance as the case might be.

114. Each of the three pages of attachment A also lists Australian labour, Australian Materials, Australian Factory Overheads and Imported Content for each. Each of those items is expressed as both a dollar amount and as a percentage amount of the total cost of the pillowcase, single sheet or single valance as the case might be.

115. The AWMSFC goes on to give an explanation of the costs:

"4.1 The products included were made from imported raw fabric (known as griege) which was then dyed, hemmed and packaged in Devonport. Raw fabric was also woven at AWM from 2000 to 2002 but, for clarity these are not included, as production made intermittently over the last 5 years already meets the requirements for greater than 25% Australian content without the fabric woven at AWM.

4.2 The following breakdown of costs in relation to pillowcases explains how the costs were incurred:

(a) Material - relates to consumption of raw fabric per item. It is expressed in linear not square metres x cost per linear metre. In this pillowcase example, the fabric is imported and 0.38 linear metres were required at an imported total cost of $3.37/metre.

(b) Dyes and Chemicals - reflect the costs of chemicals for pre-treatment (scouring and bleaching), dyeing and finishing chemicals per metre of dyed fabric. This is an Australian cost. For the pillowcase example, this amounts to $0.2980 x 0.38 metres of fabric.

(c) Shrinkage - refers to wastage during processing and is largely a loss of imported content.

(d) Dyeing labour and overhead - the labour and overhead used in the pre-treatment, bleaching and dyeing of raw fabric. This is allocated per Kg of output.

116. At this point, the AWMSFC goes on to set out the way in which the dyeing costs are calculated on a per metre basis. It uses a pillowcase as an example. The method includes the calculation of the dye house overhead cost per dye house kilogramme and the dye house labour cost per dye house kilogramme. Each is calculated by dividing the total cost (be it the dye house overhead cost or the total dye house labour cost in the budget) by the dye house kilogrammes in the budget. A further figure is given for the dyeing cost per metre and the costs relating to labour and overhead are calculated by deducting the costs for material from the total dyeing cost per metre.

117. The cost relating to dye house overhead and labour costs per length of fabric used for the item are then allocated between labour and overhead by using the formula:

total cost per metre x portion of metre used x cost per dye house kilogramme

A similar calculation is made for labour and all other products.

"(e) Accessories - these are listed in Schedule (e). Depending upon the product, each of these items is added to the item Bill of Materials and included in its manufacture. What is included depends upon whether the item is for sale at retail or for use in the institutional, commercial or hospitality markets. For a pillowcase sold into retail, this would include an insert or stiffener sometimes containing a picture illustrating the item, a sewn-in care label, a bag and a part of the box. In the example case, these accessories amount to $0.18. All these accessories are made in Australia.

(f) Waste - generated during the manufacturing process. For the purposes of this exercise, this is largely imported content. Using our pillowcase example, waste is 3% of material or $0.04.

(g) Hemming Labour - is based upon a similar calculation, i.e. overhead per minute x the number of minutes of time used to make an item. For the pillowcase example, this amounts to 3.3325 x a cost of $0.4187 or a unit cost of $1.40.

Only factory related costs are included in either hemming or sewing overhead costs, i.e. total manufactured costs do not include selling, distribution or administration. Factory overheads do, however, include: electricity, furnace oil, indirect labour, repairs and maintenance and depreciation of equipment in the factory."

118. The AWMSFC concluded with a statement of AWM's contentions. In summary, it referred to the information it had provided in its AWMSFC contending that AWM produces substitutable goods in Australia in the ordinary course of business. The AWMSFC also noted that AWM remains committed to local manufacture having purchased and taken delivery in 2007 of five new high-speed flat fabric weaving looms. At the same time, AWM is also an importer of packed bed linen. In AWM's experience overseas manufacture has some advantages over domestic manufacture but domestic manufacture has advantage in meeting some markets and strategies.

The documents lodged by the CEO in applications No. V2006759-764 and V200601106-0112

119. In a Statement of Facts and Contentions lodged on 1 September 2008 (CEOSFC), the CEO contended that:

"... AWM was a producer in Australia of goods that were substitutable goods in relation to imported bed linen, being sheets, pillow cases, covers for quilts/doonas/duvets and valances. In that regard and given that AWM is a party joined in these concurrent proceedings, the respondent relies upon their Statement of Facts and Contentions."[120]

120. Dates on which all applications would be heard were selected after the parties returned hearing certificates in their respective matters. There was no suggestion from the parties that the matters were not ready for hearing and it was listed for the week 11 to 15 May 2009. Listing notices to that effect and dated 27 January 2009 were sent to the parties.

121. After being permitted to have copies of the documents marked "commercial in confidence" and provided by Bruck or AWM in accordance with an order I made on 6 May 2009, General Merchandise asked that the hearing commence on 12, rather than 11, May 2009. I agreed to that after the other parties consented to the change.

122. Early in the afternoon of 7 May 2009, Mr Komora wrote to the Tribunal on behalf of the CEO asking the Tribunal to issue a summons directed to a Director of Bruck to attend the Tribunal at 10.00am on 13 May 2009 and to produce:

"All documents relating to production of bed sheets, pillow cases and quilt covers within the period 2001 to 2006, including but not exclusively, factory/manufacturing costs identifying local and imported materials and outlining processes, production quantities and sales data for those aforementioned goods in the relevant period."

The return date of the summons was to be the second day of the hearing if the first on 11 May 2009 were vacated in accordance with what was thought to be a request by General Merchandise. Mr Komora noted also "... the likelihood that the first day should be able to be fully occupied with the applicant's witnesses."

123. I refused to permit the summons to be issued until I had held a directions hearing involving all of the parties. As the request for the summons appeared to have been made to me, I relied on the discretion inherent in s 40(1A) to do so. That subsection provides that the member presiding at the hearing of a proceeding, the Registrar, a District Registrar or a Deputy Registrar "may summon a person" (emphasis added) to appear before the Tribunal at a hearing to give evidence, produce books and the like or to do both. Although it may be otherwise in some contexts, the use of the word "may" is generally used "To express permission ..."[121] rather than an obligation. That it is used in this way in s 40(1A) is underlined by

s 40(1C). It provides that the Registrar, a District Registrar and a Deputy Registrar named in s 40(1A) must not refuse a request to issue a summons unless authorised by a presidential member, a senior member or an authorised member.[122] As they must not refuse a request then clearly a presidential member, a senior member or an authorised member, all of whom may be the member presiding at the hearing of a proceeding, are permitted to do so.

124. At the directions hearing, held on 8 May 2009, Mr Komora submitted that the Tribunal could commence the hearing on 13 May 2009. Both Mr Niall of Counsel on behalf of General merchandise and Mr Gross on behalf of AWM opposed the issue of the summons. The submissions made by all three focussed on the stage of the proceedings at which the summons was sought, the opportunities to have requested it at an earlier stage, and the role of the party joined. I refused to authorise the issue of the summons.

125. This case has caused me some concern. It raises issues as to the role of each of the parties and that of the Tribunal in merits review. It is often said that the Tribunal must reach the correct or preferable decision but this case raises quite squarely two initial questions. One is whether that is always the Tribunal's role. If it is its role in a particular instance, the second is whether the Tribunal must make its decision on the material that the parties choose to provide or, if it is permitted to do so, on some wider basis? Is it appropriate to prevent a party from pursuing material that may be relevant? If so, when is it appropriate to do so? That in turn leads to a further question and that relates to the role of a person joined as a party? What is that role and can it be dependent on the nature of the decision being reviewed?

The task of the Tribunal in reviewing the CEO's decisions

126. The starting point for a consideration of the Tribunal's task is, of course, found in the AAT Act. Section 25(4) provides that:

"The Tribunal has power to review any decision in respect of which application is made to it under any enactment."

No mention is made in the AAT Act as to what it means to "review" the decision. Section 43(1) does not assist. It specifies that the Tribunal may exercise all the powers and discretions conferred by any relevant enactment on the person who made the decision for "the purpose of reviewing the decision". Again for that purpose, the Tribunal is required to make a decision in writing affirming or varying the decision or setting it aside and substituting another or remitting it for reconsideration.

127. When used as a verb as in s 25(4), the ordinary meanings of the word "review" include:

"... 1 to see or view something again. 2 to examine or go over something, especially critically or formally. ... 7 law to re-examine (a case). ..."[123]

128. This is the sense in which Bowen CJ and Deane J seem to have

" The function of the Tribunal is ... an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. ...

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. ..."[124]

129. In deciding whether the decision was the correct or preferable decision, the Tribunal must look not only to whether the law has been correctly applied but to whether the decision is correct in light of that law and on the basis of all of the relevant material. If a range of decisions would be correct and not merely one, merits review requires that the decision that is preferable be chosen from that range of correct decisions. The choice of the preferable decision is made having regard to matters such as any criteria or considerations prescribed by the relevant legislation or inherent in the purposes it seeks to achieve and having regard to any policy consistent with those criteria or considerations.

130. When an application for review is heard and decided, the Tribunal's role is to "ascertain what rights and obligations should exist".[125] Its decision creates those rights and obligations, however they may be described, and takes the place of the decision it is reviewing unless it affirms that decision. That decision is binding on those who are parties to the application for review of the decision. In some instances, it may also bind, or perhaps more accurately, affect the interests of others who were never parties to the proceeding that is the application for review. The Tribunal's decision whether a TCO made under the Customs Act should be revoked or cast in different terms is an example of a decision that may affect persons who are not parties to the proceeding. In other instances, the Tribunal's decision made in a particular case reviewing a particular decision does not affect the interests of those who are neither the decision-maker nor the person who is, or whose affairs are, directly the subject of the decision. The Tribunal's decision reviewing the CEO's decision to refuse to refund duty paid under protest is an example. Its decision could be regarded only as requiring the CEO to refund the duty to the applicant for review and not as requiring a refund to be paid to the party joined. An application for joinder and a subsequent order to that effect does not place the party applying to be joined and subsequently joined in a position in which it is deemed to be an applicant for review of a decision made in relation to its own circumstances.[126]

131. There was no need for their Honours to consider how the "material" to which they referred came to be before the Tribunal. There is no reference to that matter in s 43(2B) of the AAT Act setting out the Tribunal's duty when it gives written reasons for its decision. Its duty is to "... include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based." A distinction is drawn between "evidence" and "material" but the reason for that distinction is not stated in the AAT Act.

132. The reason for the distinction becomes clearer when regard is had to

s 33(1)(c). It provides that, in a proceeding before it:

"the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."

In making that provision and yet referring to both evidence and other material in

s 43(2B), it appears that a distinction may be being drawn between material that is regarded as evidence in the courts and so satisfies the rules of evidence and material that is not.

133. The function of the rules of evidence (or of the law of evidence as they may also be called) was explained by the Court of Criminal Appeal (NSW) in

"The law of evidence may be amended from time to time. But its essential function is constant and vital. In a criminal trial, guilt must be established beyond reasonable doubt based upon admissible evidence. The rules of evidence are the sieve through which information must pass before the jury is required or entitled to consider it. Parties cannot rely upon information that is not proved according to these rules. This is no mere technicality. The rules embody significant policies designed to achieve fairness and efficiency. The need to satisfy those rules in a criminal trial ensures that those policies are met and that all parties know what is being taken into account and are able to address its significance."[128]

134. The purpose of the rules of evidence is no different in the civil jurisdiction. In proceedings in federal courts, those rules are set out in the Evidence Act 1995 (Evidence Act). The term "evidence" is not defined but it is clear from Chapter 2, which deals with adducing evidence, that evidence may take the form of spoken or oral evidence or documentary evidence some other form such as a view of demonstration. Admissibility of evidence is the subject of Part 3 of the Evidence Act. It begins with the fundamental proposition in s 55 that:

"(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

Section 56 complements s 55 with the propositions that, except as otherwise provided in the Evidence Act, evidence that is relevant is admissible in the proceeding and that which is not relevant is not admissible.

135. Given that the Tribunal is not bound by the rules of evidence by virtue of s 33(1)(c) of the AAT Act, does it follow that the Tribunal may have regard not only to material that is both relevant and admissible, and so properly described as "evidence", but also to material that is neither and so is "other material"? I do not think that this proposition does flow from s 33(1)(c). Although s 43(2B) does not refer to any restrictions on what that other material may be, there is the restriction of relevance. That restriction is that the material must be relevant to, or logically probative of, a matter upon which the Tribunal must make a finding of fact. It is a restriction that is recognised when the Federal Court reviews a decision under s 5(1)(h) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). That provision permits a person to apply to the Federal Court for an order of review in respect of a decision of an administrative character on the ground that there is "no evidence or other material to justify the making of ... [that] decision". Section 5(1)(h) is qualified by s 5(3) but, for present purposes, the qualification is not relevant.

136. Drummond J explained the sort of "other material" to which a decision maker may have regard when he said in Irving v Minister for Immigration, Local Government & Ethnic Affairs[129]:

"... A person charged with the task of making a decision can, in the absence of some statutory constraint, act on material that would not be evidence in the sense of material admissible according to the rules of evidence. It is this distinction which is reflected in the expression 'evidence or other material' in s 5(1)(h) of the Administrative Decisions (Judicial Review) Act. In my opinion, when an administrative decision is challenged on the ground of absence of evidence or other material to justify it, that ground will, subject to the requirements of s 5(3) being met, be made out if there is an absence in the sense of material admissible according to the rules of evidence and also an absence of other material relevant to, and logically probative of, the matters upon which the decision maker has to reach a conclusion. Otherwise, an arbitrary decision would be immune from review in reliance on s 5(1)(h), so long as there is something to which the decision maker can say he had regard, irrespective of how irrelevant or how lacking in any probative value that material may be. ..."[130]

137. Evidence, therefore, is material that is both relevant and admissible according to the rules of evidence and so to the Evidence Act. Other material is material that is relevant but not necessarily admissible. Although it is clear that the Tribunal may have regard to material that is not necessarily admissible, the decision to do so should only be taken after considering what may fairly be considered. Fairness in that sense is not fairness as understood by s 39(1) of the AAT Act[131] or in the wider sense underpinning the rules of procedural fairness.[132] Taken together, s 39 and the rules of procedural fairness are focused on the parties' having an opportunity to ascertain the relevant issues that will be considered by the Tribunal, inspect documents to which it proposes to have regard and present their cases. Fairness in an evidentiary sense is focused on the Tribunal's relying on material that "...tends logically to show the existence or non-existence of facts relevant to the issue to be determined".[133] As Deane J, with whom Evatt J agreed, said:

"... the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. Those requirements, like all the ordinarily applicable rules of natural justice, may be modified or abolished by the express words or intendment of the legislation establishing the tribunal or conferring jurisdiction upon it ..."[134]

138. Much of what tends logically to show the existence or non-existence of facts relevant to the issue, and so is logically probative or safe to rely upon, has been the subject of the rules of evidence and I will use one of them to illustrate the point. Although there are exceptions, the general rule is that evidence given by one person of what another person said, and so hearsay, is not admissible if it is put forward to prove the truth of what was said by that other person rather than to prove the fact that the person said the words. The reason for its not being admissible is that it is unreliable and so unsafe to rely upon because:

"... Without the maker of the statement in court, it may be impossible to inquire into that person's perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth-seeking function."[135]

139. Just as the courts have tested hearsay and found it, for most purposes, to be too unsafe to rely upon to establish a fact in issue, the Tribunal must go through a similar process with each piece of material to which it may decide to have regard. Although not bound by the rules of evidence, those rules provide a tried and tested means of assessing what material is safe to rely upon. If the material does not meet those rules, careful thought of the sort given in the context of hearsay must be given to the material. That is to say, its reliability and whether it is logically probative of a fact in issue must be carefully considered before regard may be had to it. Material that is speculative or mere suspicion does not meet the required standard.

Are the applicant and the decision-maker obliged to lodge evidence or material that is relevant to the issues and to seek such evidence or material?

140. Under s 37(1)(b) of the AAT Act, the person who made the decision under review must lodge "every ... document or part of a document that is in the person's possession or under the person's control and is relevant to the review of the decision by the Tribunal." As the person must do so within 28 days of receiving notice of the application given under s 29(11), the limit of the person's obligation under s 37(1)(b) must be the documents in his or her possession or control at the time of compliance. That is so even when the decision-maker claims that the documents are confidential but particular provision is made for them in s 37(1AF).

141. There is no particular or express obligation imposed on the decision-maker by the AAT Act to lodge further documents should they come into his or her possession or control after compliance with s 37(1)(b) is complete. In practical terms, decision-makers do voluntarily lodge supplementary sets of documents in two instances. The first occurs when further documents have been identified or located as documents that should have been lodged in the first instance. Lodgement in those circumstances is a consequence of the obligation imposed by s 37(1)(b).

142. The second occurs when further documents come into the possession or under the control of the decision-maker. Lodgement is not a consequence of the decision-maker's obligation under s 37(1)(b) but of two further obligations. The first is imposed by s 33(1AA) to "... use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding". The obligation of the Tribunal under s 39 of the AAT Act means that the assistance will have to be transparent so that the other party has an opportunity to address any issues that the decision-maker raises. Just as what is fair in a given situation depends on the circumstances so too must what amounts to assistance and when it should be rendered.[136]

143. The second obligation imposed on the decision-maker once he or she has complied with s 37(1)(b) is found in his or her obligation to be a model litigant. The further obligation is a reference to the:

"... old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, ... [which is] elementary ..."[137]

It is equally applicable to courts and public administrators who share a concern in securing good administration and so in maintaining public confidence in the integrity of administrative government.[138]

144. The model litigant obligation now has a statutory foundation in the Legal Services Directions (Directions) issued on 1 November 2008 by the Attorney-General.[139] They apply generally to legal work or to Commonwealth legal work being performed, or to be performed, in a particular manner. Claims are to be handled and litigation is to be conducted by the agency in accordance with the Directions on The Commonwealth's Obligation to Act as a Model Litigant, at Appendix B. "Litigation" includes proceedings before the Tribunal as well as before courts, arbitration and alternative dispute resolution.[140] They are binding on the CEO and require him to act as a model litigant. The obligation imposed by the Directions is further explained in the notes appearing at the end. Of relevance in this case are:

1. In essence, being a model litigant requires that the Commonwealth and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards. ...
2. The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.
3. The obligation does not prevent the Commonwealth and its agencies from acting firmly and properly to protect their interests. It does not therefore preclude all legitimate steps being taken to pursue claims by the Commonwealth and its agencies and testing or defending claims against them. ..."

Lodgement of material that comes into the decision-maker's possession or custody would seem to fit squarely within the obligation.

145. The obligations imposed in this way upon the decision-maker are quite separate from, and in addition to, any obligations that may arise as a result of the Tribunal's exercising its power under s 33(1) of the AAT Act. That power is a power to direct a party to lodge all material in his or her possession or control and that may be relevant to the review of the decision. In exercising its power under s 33(1) in that way, the Tribunal would first need to bear in mind that, generally, neither party carries either burden of proof when the Tribunal reviews an administrative decision and there is no presumption that the decision under review is, or is not, the correct or preferable decision. This follows from the general principles in s 43 of the AAT Act that the Tribunal is to put itself in the same position as the person making the decision under review. The general principles were set out in McDonald v Director-General of Social Security:[141]

"There is certainly no legal onus of proof arising from the fact that this is an 'appeals' tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's. The AAT itself, in a series of cases beginning with Re Ladybird Children's Wear Pty Ltd (1976) 1 ALD 1, has taken the view that there is no presumption that the administrator's decision is correct. This is clearly the right approach to the matter."[142]

146. Woodward J went on to recognise that the general position could be altered by Parliament:

"It is possible to imagine a case where the Act which the administrator is applying places a requirement or onus on one or other of the parties to an issue to establish a particular state of facts on which the administrator's decision would be based. If that were so, the same requirement or onus would apply before the AAT."[143]

147. Parliament has not changed the general position in the Customs Act. The upshot is that, apart from evidence or material that the decision-maker is obliged to lodge, it is in the interests of both the decision-maker and the applicant seeking review that they seek and lodge evidence and relevant material. Being in their interests is quite different from their being obliged to do so. Indeed, an applicant in a case such as this is in a difficult position. In order for an applicant to be successful, the Tribunal must be satisfied that there was no producer in Australia of substitutable goods in relation to the goods covered by the TCOs at the relevant times. An applicant left to find evidence or material relevant to establishing a negative proposition can do little to advance the proposition.

148. A party who has been joined and who claims to be a producer in Australia of substitutable goods, on the other hand, is able to bring forward evidence or material directed towards establishing that positive claim. For this reason, the active participants in such cases tend to be the party joined leading the evidence or material and the applicant testing it. The fact that the CEO tends to be more a bystander, for it is the party joined who has the evidence or material on which the CEO relied, does not absolve it of its obligation to lodge relevant evidence and material as I have described above. It is an obligation consistent with its role in making the TCO initially. Northrop J explained that role in Polypacific Pty Ltd v Comptroller-General of Customs[144] when explaining the role of the predecessor of the CEO, the Comptroller-General, in what was the then process of making Commercial Tariff Concession Orders. It is a role that required the Comptroller-General to take an inquisitorial approach in considering whether to make a concession order:

"... The Comptroller is required to seek out material which will be of assistance in the performance of the duty or the exercise of the power conferred by the Customs Act. It is to be expected that the Comptroller will seek information from those who could be affected adversely by the making of the concession order. It is to be expected that the Comptroller will seek information from other sources. It might be wise for the Comptroller to notify the applicant for the concession order and those likely to be adversely affected by the making of the concession of information received from all sources to enable them to comment on that information. It is important that the Comptroller should make his decision on the material which is relevant and reject material which is not relevant. He should apply the law. But subject to these general principles, the Comptroller is free to adopt any method thought desirable to assist in making the correct decision."[145]

Is the Tribunal limited to evidence and material produced and issues raised by the parties and may it limit the evidence and material and issues to which it has regard?

149. I will begin with the AAT Act for that, of course, is the starting point of any enquiry relating to the Tribunal's powers. It will not be the only point for many of the general powers set out in the AAT Act may be modified, excluded or supplemented by the enactment making provision for an application to be made to the Tribunal for review of the decision.[146] Another point to which regard must be had will be the manner in which the courts have interpreted the Tribunal's statutory powers or the statutory powers of similar administrative bodies for the law by which the Tribunal is bound is not simply the law in the form of legislation but the law as interpreted by the courts exercising their judicial power to do so.

150. I have already referred to the Tribunal's power to review decisions given by s 25(4) and its powers, discretions and obligations under s 43(1) as well as the Tribunal's obligation under s 39 to give the parties an opportunity to ascertain the relevant issues that will be considered by the Tribunal, inspect documents to which it intends to have regard and present their cases. At one level, the language of s 39 in referring to the parties' presenting their cases is consistent with an adversarial approach. It is, however, also consistent with an inquisitorial approach for those whose interests may be affected by the decision to be made and who are parties to the application to have their views on the material and the outcome of the review to be heard regardless of whether they presented the material or it was gleaned by the Tribunal.

151. I should also refer to s 25(4A) which provides:

"The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers."

On its face, this provision could be read as giving the Tribunal the power to decline to consider certain issues or evidence or make findings of fact on certain issues even though a consideration of those issues or that evidence and the findings of fact could be expected to be crucial to the ultimate decision made on review. Although clearly within the power of Parliament to enact, such an interpretation of s 25(4A), if correct, would appear to be contrary to the general principle that a tribunal charged with a statutory responsibility to carry out a particular function may not preclude itself from inquiring into matters relevant to its fulfilling that function.

152. This principle was stated by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman[147] in the context of s 92F of the Broadcasting and Television Act 1942 (BT Act). Section 92F(4) provided that the Australian Broadcasting Tribunal (ABT):

"... shall not refuse to grant approval under this section unless it has held an inquiry into such matters as are determined by the Tribunal to be relevant to the application of this sub-section and sub-section (4A) in relation to the transaction."

The ABT was not permitted to refuse to grant approval under s 92F unless it was of the opinion that one or other of the two circumstances set out in s 92F(4A) prevailed. One of those circumstances, set out in s 92F(4A)(a), was that it was of the opinion that the transaction had resulted, or would result, in a contravention by the person concerned under s 92F. Section 25(1) of the BT Act provided that:

"(1) The Tribunal shall, without regard to the legal forms and solemnities, make a thorough investigation into all matters relevant to an inquiry under this Division, and may give all such directions and do all such things as the Tribunal considers are necessary or expedient for the expeditious and just hearing of the inquiry.

(2) The Tribunal is not bound by legal rules of evidence and may inform itself on any matter in such manner as it thinks fit."

" In follows from the provisions of s 25(1) that the Tribunal was under a statutory duty to make a thorough investigation into all matters relevant to the inquiry which it was holding pursuant to s 92F(4). It was therefore under a statutory duty to investigate the possibility that contraventions of the Act had taken place on the part of Control [Investments Pty Ltd] and those associated with it.

To discharge its duty the Tribunal must in an appropriate case investigate for itself the possibility of contravention, even in circumstances where there is no party before the Tribunal willing, anxious or able to pursue the issue. It will be noted that a party is given no right to compel the attendance of witnesses. It is for the Tribunal to decide who should be summoned before the Tribunal to give evidence and produce documents

(s 21(2)). The appearance of a party in an inquiry before the Tribunal alleging that there are, or may be, contraventions of the Act cannot qualify or modify the Tribunal's statutory duty to inquire into relevant matters. By ruling that it would not inquire into contravention because the prosecutors were not calling legally admissible evidence, the Tribunal departed from its statutory responsibility."[148]

154. Section 94F(4A)(a) had set out a matter that the ABT was required to consider and that it was found not to have considered. The situation is somewhat different when the legislation does not specify matters that must be considered but leaves it to the decision-maker to decide those that are relevant to the issue that must be decided and the weight to be accorded to each. Even then, the decision-maker does not operate without fetter. As Bowen CJ and Lockhart J said in Australian National University v Burns:[149]

" Commonwealth legislation in the field of administrative law is intended to seek a balance between justice to the individual and efficiency of administration, between private rights and public advantage. The administrative process must be efficient in the sense that government policy must be implemented effectively. Nevertheless the achievement of that object must be consistent with fair play to the individual. The community must be satisfied that the administrative process is conducted with due regard to maintaining a balance between the public interest which it advances and the private interest which it disturbs."[150]

155. These principles are equally applicable to the Tribunal. That is so even when it is exhorted by means of statutory provisions, in this case s 2A of the AAT Act, to "... pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick." Speaking of similar but earlier provisions in s 25 of the BT Act, Muirhead J said in TVW Enterprises Ltd v Australian Broadcasting Tribunal:[151]

"... These statutory exhortations may be summed up as requiring thoroughness, fairness and expedition but the key and common feature must be relevance to the task in hand. Such legislative directions are no doubt intended to protect the interests of those involved but of course it is inevitable that such interests will be diverse, and at times in conflict, especially when the issues are of tremendous importance, not only to commercial interests but to the public at large. It is inevitable, if the investigation is to be, for example, thorough, and the hearing expeditious that the Tribunal in the exercise of its discretion will be required to make considered but hard-headed choices between the submissions of one party and the contrary submissions of another. And when the Tribunal is urged, as it was here, when considering the grant of a commercial licence to further its inquiry into the establishment and feasibility of a television station of a completely different nature it is perhaps understandable that it should examine the proposition with care. It is trite to say that such an examination has or may have relevance and thus thoroughness dictates it shall be pursued. But the interests of the public, the function of the Tribunal and the very administration of the Act may be jeopardised if every issue or submission raised must as a matter of law be pursued to the end merely because it may, in the view of the party, raising it have relevance or importance. The primary task of the Tribunal in such a case must be to give fair consideration to the submissions and counter submissions, weigh them and decide.

Contemporary legislation relating to review of such decisions was designed to ensure as far as practicable that fairness predominates. ..."[152]

156. Much later, the High Court reached a similar conclusion in Minister for Immigration and Multicultural Affairs v Eshetu[153] when it considered a similar provision in the form of s 420 of the Migration Act 1958. It provides that the Refugee Review Tribunal is not bound by technicalities, legal forms or rules of evidence and must act according to the substantial justice and merits of the case.[154] The High Court said:

"... The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins[[155]]. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question."[156]

157. Referring again to the ABT, in TVW Enterprises Ltd v Australian Broadcasting Tribunal,[157] Forster J considered its power to limit cross-examination by those who held the relevant licences and so the incumbent licensees:

" It seems clear that if the incumbents have a legitimate case to oppose the grant of any licence in general and also in particular to oppose the grant of a licence to each of the present applicants they should be permitted by the Tribunal to present that case by cross-examination and calling evidence and in the course of such presentation to attack and attempt to demolish the individual cases of the applicants as well as to deal with matters of general public interest. It is my view that the incumbents have such a legitimate case and that in the exercise of its statutory duty to make a thorough investigation the Tribunal should permit that case to be put. The case of the incumbents is in my view as wide as the inquiry itself with the exception of s 83(9) of the Act which provides that if there are two or more suitable applicants for the licence the Tribunal shall grant the licence to the most suitable one. It seems to me that the incumbents have no interest in the choice of a licensee.

I am not of course saying that the incumbents should not be restricted by the ordinary rules as to relevance and prolixity. Clearly the Tribunal should be at liberty to stop cross-examination seen to be irrelevant or insufficiently relevant to any issue properly before it, or to be unnecessarily prolix and should be at liberty to decline to hear evidence irrelevant or insufficiently relevant to any issue properly before it, and to cut it short should it transgress ordinary limits of prolixity. In the exercise of its power to control its own proceedings (s 25 of the Act) the Tribunal must from time to time make decisions as to relevance and as to prolixity but it must bear in mind at all times the words of Aickin J in ... [Barrier Reef Broadcasting Pty Ltd v Minister for Post and Telecommunications (1978) 19 ALR 418 at 445)] and not sacrifice justice to expedition."[158]

158. When read against the background of the existing law, s 25(4A) of the AAT Act would seem to be doing no more than reflecting the principles developed already determined by the courts. Indeed, when regard is had to the Explanatory Memorandum to the Bill leading to the enactment of the Administrative Appeals Tribunal Amendment Act 2005 and the insertion of s 25(4A), it becomes apparent that this was Parliament's intention:

"Item 73 inserts a new subsection 25(4A) into the AAT Act. New subsection 25(4A) clarifies that the Tribunal will have the power to determine the scope of the review of a decision. The Tribunal would be able do this by limiting the questions of fact, the evidence and the issues that it considers.

Parties often call upon the Tribunal to consider and/or make determinations on evidence or issues of law and fact that are not relevant to the decision that is under review. New subsection 25(4A) enables the Tribunal to dismiss a party's request for the consideration of, and/or determination on, evidence or issues of law and fact which are not relevant. It is not intended that this section will allow the Tribunal to limit its own jurisdiction conferred by the Act or other legislation. For example, if the consideration of a legal issue is a threshold to the Tribunal affirming, varying or setting aside a decision, new subsection 25(4A) is not intended to give the Tribunal power to dismiss the consideration of such an issue."

159. Relevance of the material and issues and fairness then are crucial factors to be considered but so too is expedition provided justice is not sacrificed upon its altar. Although equally applicable to this Tribunal, the principles developed in the context of proceedings before the ABT appear to have been developed in the context of a tribunal conducting its proceedings in an adversarial manner. There is a question whether this Tribunal is an inquisitorial or adversarial tribunal. Various answers to the question as to its inquisitorial or adversarial nature have been given by the courts over the years. I analysed a number of them in Re Kumar and Minister for Immigration and Citizenship.[159] In this case, it seems to me sufficient to refer to just three.

160. The first is Harris v Secretary, Department of Employment and Workplace Relations,[160] in which Gyles J identified powers of the Tribunal that can be characterised as investigative but recognised that the choice to use them lay within the Tribunal's discretion. His Honour said:

" The AAT stands in the shoes of the Department and is in precisely the same situation as the decision-maker. The fact that, as a practical matter, it chooses to conduct quasi-adversarial proceedings and does not have available direct access to medical specialists for the purposes of investigation, does not change the nature of the function being performed by it. The provisions of s 33 of the AAT Act give ample scope for the AAT to arrange investigation of a claim. The decision maker is bound to use his or her best endeavours to assist the AAT to make its decision (s 33(1AA)). The AAT has inquisitorial powers and may exercise them where appropriate. (See, generally, McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354.) It is not, of course, every case that will require such measures. In general, an applicant for a benefit must satisfy the decision maker of the necessary criteria. However, cases such as this may demand such an approach (cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-170; Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 49-50). ..."[161]

161. The second is VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[162] in which Merkel J referred to Bushell v Repatriation Commission,[163] in which Brennan J gathered together a number of authorities saying:

" It is well established that an inquisitorial tribunal, such as the Administrative Appeals Tribunal and the Refugee Review Tribunal, is entitled to be guided by the issues the applicant or any other 'party' chooses to put before it for its consideration and to have regard to the case put. As was said by the Full Court in Grant v Repatriation Commission [1999] FCA 1629 at [17] - [18]:

_"_The AAT is entitled to be guided by the issues that the parties choose to put before it for its consideration (Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes [1991] FCA 245; (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal [1993] FCA 71; (1993) 40 FCR 483 at 487-489) and is entitled to have regard to the case put (Noble v Repatriation Commission [1997] FCA 1159 at 16).

In Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425 Brennan J said of the inquisitorial procedure of the AAT:

"Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it...The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings."

An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the 'case' articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15]).'

See also Chief Executive Officer of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578 at 592-593."[164]

162. Recognising that the Tribunal has been constituted upon the judicial model whose function is to decide appeals and not advise the Executive,[165] Deane J, with whom Fisher J agreed in Sullivan v Department of Transport,[166] said:

"... In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner in which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner which a particular party wishes to present his case. ..."[167]

163. The principles in these cases are not entirely consistent. Fisher J appears to counsel the Tribunal to leave it to the parties to identify the issues and to present their cases. More recently, Gyles J could be said to have done the same but he goes further in his statement that "The AAT has inquisitorial powers and may exercise them where appropriate". His suggestion that "The provisions of s 33 of the AAT Act give ample scope for the AAT to arrange investigation of a claim" cannot be contradicted. Whether there is ample scope in a practical sense in the context of a particular case may well be a very different matter. The Tribunal can rarely, if ever, be in the position of the parties who know, or who are more likely to know than the Tribunal, of the material that is available and that may be relevant to the case. No part of the Tribunal's budget has been deployed to engage investigators. None of its funds has been earmarked to enable it to call independent witnesses or to ask for specialist reports such as medical reports. The extent to which the Tribunal will be able to persuade a decision-maker that, in order to comply with the obligation under

s 33(1AA) of the AAT Act to use his or her best endeavours to assist the Tribunal, he or she must spend money is debateable. Taking that course with a decision-maker who does not believe that further enquiries are relevant requires the Tribunal to present a persuasive case to him or her. The same is true of the party other than the decision-maker despite the Tribunal's power to give directions under s 33(2A)(a) to "... provide further information in relation to the proceeding".

164. Certainly, it can issue a summons and effectively defray all but the cost of serving the summons on to the recipient of the summons directed to produce the specified documents or to appear to give evidence. The Tribunal is limited in issuing a summons by its limited knowledge of the background to the case. Even with the assistance offered by the decision-maker under s 33(1AA) of the AAT Act and the documents it must lodge with the Tribunal under s 37, it is often not in the position to be fully informed of the material available to the party other than the decision-maker. The AAT Act does not impose an obligation upon the person seeking review to lodge all material that is in its possession or control and that is or may be relevant to the review of the decision.

165. What the AAT Act does is to give the Tribunal a power that it could exercise to impose such an obligation on the applicant or on any of the parties to the application. It gives it in s 33 to give directions and, for all the practical difficulties that may face the Tribunal, the fact is that the Tribunal does have inquisitorial powers. Having those powers does not of itself place the Tribunal under an obligation to exercise them. It is within its own discretion whether it does so.

166. Given the practical difficulties to which I have referred, in many instances, the most effective tool available to the Tribunal will be its own power of analysis of the material presented to it and its questioning of the witnesses called by the parties. Even so, it is a tool whose edge may be blunted by the very fact that the Tribunal can never be in the position of either of the parties and can never be privy to all that they know and all that they may be capable of finding out. Nevertheless, it is a tool that it is obliged to use. This is apparent from the nature of its obligation, as identified by the authorities to which I have referred, to decide the correct decision or, if there is more than one decision that is correct, the preferable decision (the correct or preferable decision) on the material before it. Although the Tribunal is not obliged to attempt to seek all of the evidence or material that might be relevant before coming to that correct or preferable decision, it is not limited to considering the issues identified by the parties as relevant. As Merkel J, who was in general agreement with Carr J, said in Chen v Minister for Immigration and Multicultural Affairs[168] said of the Immigration Review Tribunal:

"... In arriving at its decision the Tribunal is required to deal with the case actually raised by the material or evidence. Unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: ... In arriving at its decision, an inquisitorial tribunal, such as the Tribunal, can be guided by the issues the parties choose to put before it and is to have regard to the case so put: see Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at 5 to 6 and Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80 at 84. ..."[169]

167. The Tribunal's obligation is subject to its further obligation to observe the rules of procedural fairness when considering issues to which the parties may not have directed their minds. The AAT Act makes no reference to those rules. It does provide that, subject to s 35, which permits confidentiality orders to be made in some circumstances, ss 36 and 36B, which are concerned with public interest certificates issued by the Commonwealth and State Attorneys-General and a proceeding in the Security Appeals Division to which s 39A applies:

"... the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents."[170]

168. Quite apart from its statutory obligation, the rules of procedural fairness set a course that the Tribunal must follow before relevant and probative material may be relied upon. Unless the contrary is dictated by the provisions of the enactment under which the Tribunal is given power to review a decision, that process is to ensure two outcomes. The first is that the parties have a reasonable opportunity to present their evidence or material and their arguments as to how the law should be interpreted to the Tribunal. The second is that they have a reasonable opportunity to present their arguments on those issues having regard to all of the evidence and material before the Tribunal, the arguments put by other parties and any views expressed by the Tribunal.[171] Fairness itself would seem to be a sufficient rationale for this approach but there is another which is consistent with the exhortation in s 2A of the AAT Act. The other rationale is that:

"... adherence to the requirements of natural justice [or procedural fairness] will ultimately promote administrative efficiency because of the greater public satisfaction and the fewer grievances that will result from the higher quality of decision-making thereby produced."[172]

What is the purpose of the parties' lodging Statements of Facts and Contentions?

169. This question was considered by Flick J in Comcare v Davies[173] when he said:

"A Statement of Facts and Contentions should obviously not be construed with the constraints appropriate to a pleading in a Superior Court. Nor should a Statement of Facts and Contentions be file with such generality that all issues which potentially may emerge will be held subsequently to fall within one or other of the matters set forth. But it should be drafted with a sufficient level of precision to enable both an opponent and the Tribunal to know the facts and contentions being raised for consideration. The procedures of the Tribunal are sufficiently flexible to permit of any subsequent need to revisit a Statement which has been filed if that is necessary to ensure that the 'correct or preferable decision' is reached and reached in a manner which permits all parties to have a 'reasonable opportunity to present his or her case': Administrative Appeals Tribunal Act 1975 (Cth), s 39(1). Within those broad limits, the procedures followed by the Tribunal should be sufficiently flexible to permit new or additional contentions to be raised, where that is necessary to ensure that the Tribunal properly discharges its functions, and sufficiently flexible to ensure that contentions which may have been initially raised at the outset of proceedings are able to be later abandoned (eg. Comcare v Holt [2007] FCA 405 at [33]; [2007] FCA 405; 94 ALD 576 at 583 per Mansfield J)."[174]

170. New issues may arise out of further reflection by one or more of the parties or by the Tribunal. It may be raised by the evidence and material as it is gathered. In some circumstances, it may be necessary to require the parties to lodge fresh Statements of Facts and Contentions (SFC) if a fresh issue arises during the conference stage or at a directions hearing and so before the hearing of the substantive application. In others, the parties will have ample opportunity to know of the issues to be raised by the other party or parties without need of revised SFCs. Clarity for the parties and the Tribunal must be ensured but the parties must not be required to incur costs in preparing revised or further SFCs when there is no practical need of them. Identification of the issues or not in the SFCs, revised or otherwise, does not relieve the Tribunal of its duty to consider all issues raised by the evidence or material.

What is the role of the person joined as a party?

171. I will begin this section by first referring to the manner in which a person becomes joined as a party to a proceeding and identifying the proceeding. Having done that, I will consider whether the AAT Act makes any provision for the role to be played by the party joined and will look to the civil cases in the courts to see whether they offer any guidance. Once I have identified the general position, I will consider whether the fact that the decision was made under the Customs Act makes any difference.

172. The parties to a proceeding in the Tribunal are the person who, being entitled to do so, has applied for review of a decision, the person who made the decision, the Attorney-General if intervening under s 30A of the AAT Act and any other person who has been made a party to proceeding on an application made in accordance with s 30(1A). Section 30(1A) provides:

"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."

173. The section requires four criteria to be satisfied before a person becomes a party to a proceeding by virtue of the Tribunal's order. I considered them in making an order to join AWM as a party and in refusing an application by Legend Australia Holdings Pty Ltd.[175]

174. What I did not consider when making those orders was the proceeding to which they sought to be made a party. The word "proceeding" is given a very broad definition in s 3(1). It is expressed in terms that include seven specific types of application and a matter referred for inquiry and/or review. Those examples include "an application to the Tribunal for review of a decision" in (a) of the definition to, in (h), "an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph" being paragraphs (b) to (g). Given the reference in the opening words of s 30(1A) to "an application ... for a review of a decision", it would seem that the reference to "the proceeding" to which the Tribunal may order the person be made a party is that proceeding and not to a specific part of it.

175. That this is the correct interpretation is supported by reference to those sections providing for intervention by the Commonwealth or by a State Attorney-General. Their position is dealt with in ss 36 to 36C. Those sections make clear that it is feasible that there are circumstances in which they may be deemed to be a party to a "proceeding" other than a proceeding that is the application for review itself. The intervention provision in s 30A also makes clear that the Attorney-General may, by virtue of an intervention, become a party to a proceeding that is an application for review of a decision or a party to another proceeding within the meaning of (b) to (h) of the definition of that term in s 3(1) of the AAT Act.

176. Apart from that qualification, there would seem to be no other provision of the AAT Act that regulates the role of a party joined. There are provisions that relate to the parties generally or to the party that is the person whose decision is under review e.g.

• "At the hearing of a proceeding before the Tribunal, a party to the proceeding may appear in person or may be represented by some other person"[176] and
• "In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding"[177]

177. There are provisions that relate to the consequences that may follow if

• "If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or

(b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding."[178]

178. Other provisions enable the President to direct the parties to take certain steps e.g.

• "Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or

(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or

(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing."[179]

(a) direct the holding of a conference of the parties or their representatives in relation to the proceeding, or any part of the proceeding or any matter arising out of the proceeding; or

(b) direct that the proceeding, or any part of the proceeding, or any matter arising out of the proceeding, be referred for a particular alternative dispute resolution process (other than conferencing)."[180]

179. These provisions suggest that no distinction is made between the applicant for review and the decision-maker on the one hand and a person who has been joined as a party. They would seem to suggest that a party joined is a party for all purposes of the AAT Act. Arguably, that position could only change if there were a provision of the enactment conferring the right to apply to the Tribunal to the effect that s 30(1A) of the AAT Act were modified. Section 25(6) of the AAT Act does not provide for the supplementing, exclusion or modification of s 30(1A) but it does provide for the modification of other sections including s 33.

180. I have already referred to 33(2A) which expands upon s 33(1). In turn, s 33(1) provides:

(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."

There is no mention of the party joined in s 33(1) but there is also no mention of the applicant for review of the decision or of the decision-maker. That is understandable for, as is illustrated by the examples effectively given in s 33(2A), it is not concerned with the substantive rights of parties but with "... the method and order followed in doing something ... an established routine for conducting business ... in a law case ... a course of action; a step or measure taken ..."[181], and so with procedure.

181. Although I appreciate that the principles that underpin merits review of administrative decisions are different from those underpinning the resolution of civil cases in the courts, I have spent a moment considering the position in the courts. After all, it is clear from many of the reasons for decision given in earlier years that the provenance of many of the principles underpinning the AAT Act lies in the general law.

182. A court is concerned with claims in its civil jurisdiction. Looking to the Supreme Court of Victoria (Supreme Court) as an example and intending to give only a flavour of the position that prevails in it, I note that a plaintiff may join any number of claims against a defendant.[182] Order 1, rule 9.02 provides that two or more persons may be joined as plaintiffs or defendants in any proceeding:

(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and

(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions;

(b) where the Court, before or after the joinder, gives leave to do so."

Rule 9.02(b) would permit the joinder of a claim by a plaintiff against a defendant with a claim by another plaintiff against another defendant. Subject to certain exceptions, O 18 applies where numerous persons have the same interest in any proceeding.[183]

183. A defendant may raise a claim for relief in the same proceedings by a counterclaim against the plaintiff alone in accordance with O 1, r 10.02. The defendant is then treated as the plaintiff and the plaintiff as the defendant for the purpose of the joinder of claims under O 1, r 9.01.[184] The defendant may join another person with the plaintiff as defendant to the counterclaim.[185]

184. O 1, r 11.01 refers to a claim by a defendant against what is called a third party i.e. a party not already a party to the proceeding. It provides that, where the claim is for:

(b) any relief or remedy relating to or connected with the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or

(c) that any question relating to or connected with the original subject matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party -

the defendant may join the third party as a party to the proceeding and make the claim against that third party by filing and serving a third party notice."

185. It is apparent that, for the most part, the joinder of claims and of third parties is very much a matter for the plaintiff and defendant to a claim. The Court does play a role, though, and may make one of four orders where any joinder of claims or parties may embarrass or delay the trial of the proceeding, cause any prejudice to any party or is otherwise inconvenient. Those orders are that:

(b) any claim be excluded;

(c) any party be compensated by an award of costs or otherwise for being required to attend, or be relieved from attending, any part of a trial in which that party has no interest;

(d) any person made a party cease to be a party on condition that that party bound by the determination of the questions in the proceeding or without any such condition."[186]

186. Rule 9.05 provides, in part, that "... the Court may determine all questions in the proceeding so far as they affect the rights and interests of the parties." The focus of the proceedings on the resolution of claims between parties is also apparent from r 9.06:

"At any stage of a proceeding the Court may order that -

(a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;

(b) any of the following persons be added as a party, namely -

(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or

(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;

(c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies."

187. Pleadings are the subject of Order 13 of the SCV Rules. Every

"(a) contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved;

(b) where any claim, defence or answer of the party arises by or under any Act, identify the specific provision relied on;

(c) state specifically any relief or remedy claimed."[187]

Every pleading shall contain the necessary particulars of any fact or matter pleaded.[188] This is consistent with their roles:

"Pleadings define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise."[189]

188. In most instances, "... every allegation of fact in any pleading shall be taken to be admitted unless it is denied specifically or by necessary implication or is stated to be not admitted in the pleading of the opposite party ...".[190] The process of admission and denial in the course of pleadings and particulars is important. At the close of pleadings, "... a joinder of issue on the pleading last served shall be implied."[191] Unless an allegation is excepted from the joinder and stated to be admitted, a "... joinder of issue shall operate as a denial of every material allegation of fact made in the pleading upon which issue is joined."[192]

189. For all practical purposes the pleadings define the issues that must be decided by the Court in claims between parties who are, for the most part, selected by the parties to the initial claim. That means that:

"... Generally speaking a court has no jurisdiction over any person other than those properly brought before it as a party or as a person treated as if they were a party under statutory jurisdiction or a person coming in and submitting to the jurisdiction of their own free will to the extent to which they do submit. There is no jurisdiction to make an order against a person not so before it merely because an order made or to be made may or will be ineffectual without it...."[193]

190. It is clear from the bases upon which parties may be joined to a proceeding that it may well be that not all of the issues affect the interests of all of the parties. What is in issue between any one party and another is determined by the pleadings. What orders can be made by the court will depend on the resolution of those issues and by legislative provisions, if any. It may be that a particular legislative provision gives a court jurisdiction to give judgment in favour of a plaintiff against a defendant but not against a third party. That was the case in Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd and Another.[194] Putting aside specific legislative provisions, the general position is that:

" Rule 11.04(1) of the General Rules of Procedure in Civil Proceedings 1986 provides that a third party joined as a third party 'shall become a party to the proceeding'. ... It has been uniformly interpreted as having the effect that a third party becomes a party to the proceeding. ... [i]n South Australia, in Roufos Jewellers of Adelaide Pty Ltd v Malltown Pty Ltd_,_[[195]] Wells J held that a contribution notice could be issued by a defendant against a third party joined to the action by another defendant, on the basis that the third party was 'already a party to the action.' His Honour regarded it as important that the South Australian rules of court elsewhere referred to the 'plaintiff' and 'defendant' and concluded that the expression 'party to the action' was intended as a conception of broader content. More recently, the New South Wales Court of Appeal held in Sandtara Pty Ltd v Abigroup Ltd[[196]] that a third party is a party to the proceeding between plaintiff and defendant and is thus bound by the decision between plaintiff and defendant. ..."[197]

191. The New South Wales Court of Appeal judgment to which the Victorian Court of Appeal referred was Sandtara Pty Ltd v Abigroup Ltd, in which the following statement had been made:

"... A third party bound by the decision between the plaintiff and the defendant must also be entitled to rely on it because res judicata estoppels are mutual: see Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 at 276; Reg v Humphries [1977] AC 1 at 20, 33; Hunter v Chief Constable [1981] UKHL 13; [1982] AC 529 at 540-1."[198]

192. Merits review of an administrative decision in the Tribunal is a very different concept in some regards but not so in others. I have already discussed the role of the Tribunal,[199] but note that Pincus J said in Bogaards v McMahon:[200]

" The tribunal, whether or not constituted by a judge, is one of a class which does not in general exercise judicial power: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584. Such bodies, however, may have the function of ascertaining facts and applying the law to them: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 411. That decisions of the tribunal may be based on, or indeed consist of, determination of questions of law is necessarily implicit in s 44(1), which gives the right of appeal to this court on such questions, and s 43(2B) recognises its right to resolve questions of fact."

193. Therefore, although finding facts and applying the law are common steps in both a civil trial in a court and in the Tribunal, the process of merits review does not describe the role of a court in deciding a civil action. The role of a court is largely constrained by the parties and not by the essential nature of the dispute. As in the Tribunal, a person must initiate the action. In a court it is the plaintiff and in the Tribunal the applicant. In the court, the plaintiff chooses the defendant but that is not the case in the Tribunal. The respondent to an application is determined by the decision itself and is always the person who made the decision. In most instances in a civil action in a court, the plaintiff and defendant choose those other persons, if any, who will become parties to it. In the Tribunal, persons may seek to become a party of their own volition or upon having been given notice of the application by, perhaps the Tribunal itself. Whatever the case, it is the Tribunal which ultimately exercises a discretion in deciding whether those persons will be made a party.

194. Once issue is joined in a court, the court is constrained by those issues and its judgment affects only the parties to the action. The court ascertains and determines the parties' rights and duties and entitlements and obligations, however they may be described, according to the law and having regard to the evidence that is admissible according to the rules of evidence. Once an issue has been litigated and decided, the parties are generally not at liberty to litigate it again. That comes about by application of various principles of estoppel and res judicata.[201]

195. Issue is not joined as such in the Tribunal and there is a further difference between a civil action in a court and the review of a decision in the Tribunal. In a court such as the Supreme Court, parties fall neatly into plaintiffs pursuing rights and remedies, defendants resisting their claims and third parties resisting claims by defendants if they are not themselves plaintiffs or defendants.

In the Tribunal, the parties can be grouped into persons who are:

· dissatisfied with the decision and seek to have another in its place;

· a decision-maker who wants to make the correct or preferable decision and whose duty is to use his or her best endeavours to assist the Tribunal to make its decision;[202] and

· a person whose interests are affected by the decision but whose interests may or may not align themselves with those of the applicant for review or of the decision-maker in any particular case. Indeed, they usually do not for the fact that a person's interests are aligned with those of a person who is already a party may lead to the Tribunal's exercising its discretion not to join that person as a party.[203]

196. This grouping reflects the different focus of the proceeding; that of identifying the correct or preferable decision. Once a person, the applicant, has initiated review of the decision by making an application, a third person with an interest affected by the decision is not joined as of right. It must be, as it is, a matter for the Tribunal to decide in its discretion for it is a proper representation of the interests that are affected that is the key thing. It cannot relate to the resolution of issues between, say, the third party and the decision-maker.[204]

197. All of this brings me to the position of the parties other than the plaintiff and defendant in a court case and of the applicant and respondent in the Tribunal. Despite the differences between proceedings in a court in a civil action and those in the Tribunal for review of a decision, it seems to me that there are similarities. A party joined by a defendant according to r 11.01 of the SCV Rules may have an interest in some only of the issues that arise between the plaintiff and the defendant. The relief or remedy the defendant seeks against the third party may, for example, be for relief or remedy related to or connected with the original subject matter of the proceeding but need only be substantially the same as "some relief or remedy claimed by the plaintiff". It need not seek the whole of the relief or remedy claimed by the plaintiff. Equally, the third party may only be concerned in a question that relates to or is connected with the original subject matter of the proceeding and that should be determined between either or both of the plaintiff and the defendant and the third party as well as between the plaintiff and defendant. That is not a question that must relate to the whole of the subject matter of the original proceeding. Despite the fact that a third party may be joined for reasons that do not reflect all of the issues between the plaintiffs and defendants, the Victorian Court of Appeal decided in Financial Wisdom Limited v Dale Newman & Ors that the third party was a party to the proceeding between plaintiff and defendant and is bound by it. Principles of estoppel and res judicata would limit its efforts to litigate issues decided in that proceeding.

198. Given the nature of the enquiry conducted by the Tribunal, there are even stronger grounds for concluding that the power to make a person a party under

s 30(1A) must be a power to make that person a party to the whole of the proceeding that is the application for review of a decision and not just to part of it. Each of the parties should be directing their efforts to the common cause of identifying the correct or preferable decision and not in prosecuting claims one against the other. Their interests may appear to be affected by the decision under review in one way at the outset but that may change during the course of a hearing. Certainly, the Tribunal uses Statements of Issues and Statements of Facts and Contentions to identify the issues raised by the review but, unlike pleadings in a civil matter in a court, they do not define the only issues that the Tribunal may consider and it is not limited by them. It is limited by the need to accord procedural fairness to the parties but issues may emerge and require exploration. Procedural fairness must be observed but cannot be used as a reason to excise relevant issues from the Tribunal's consideration.

199. The nature of the Tribunal's task leads to the conclusion that its power to make a person a party to a proceeding under s 30(1A) is a power in relation to the whole of the proceeding and not simply to be a party to part of a proceeding. It is consistent with and supports the conclusion that I reached above after analysing the legislative provisions. As the proceeding to which s 30(1A) relates is a proceeding for the review of a decision, it must follow that the person is a party to all of the incidental applications that are made in the course of, or in connection with, the application for review.

200. There is nothing in the Customs Act that suggests that I should reach a different conclusion as to the role of the party joined in a proceeding to review the CEO's decisions in this case. Once I made an order joining it as a party to the proceeding, it was in the same position as the applicant, General Merchandise. It also bore no burden of proof.

201. Once a person has been joined as a party, there is no basis on which the Tribunal can say that it is no longer a party simply because it does not wish to play an active part in the proceedings. The power given under s 30(1A) may be exercised if the Tribunal is satisfied that the person is a "person whose interests are affected by the decision" of which another has sought review. The exercise of the power is discretionary but it is not predicated upon the person's undertaking to lead evidence or material or even to make submissions. A person whose interests may be affected by the decision under review and who is joined as a party may be directed to do something such as lodging a Statement of Facts and Contentions or to produce material. If the party joined fails to appear either in person or by a representative at a directions hearing, alternative dispute resolution process held in relation to the application or at the hearing of a proceeding, the Tribunal may direct that he or she ceases to be a party to the proceeding.[205] If he or she does not comply with a direction within a reasonable time, the Tribunal has no power to direct that he or she cease to be a party for the Tribunal's powers in that situation are limited to a failure to comply by the applicant.[206]

202. In this case, AWM has always appeared by its representative and has complied with each direction. If there was a suggestion during the course of the hearing that it should have withdrawn once it knew that it would not lead evidence or relevant material to support its claim that it was a producer in Australia of substitutable goods, I do not think that I should have encouraged it to take up the suggestion. It was joined as a party because I found that it was a person whose interests were affected by the decision under review. The member conducting the directions hearings prior to 7 May 2009 did not see fit to require AWM to lodge material and, for the reasons I give below,[207] I would not wish to be thought at all critical of that decision. Having been joined and having done what was required of it, AWM should be left to protect its interests as it sees fit. In this case, it saw fit to remain a party and to lead no material.

203. I have already set out the circumstances in which the Tribunal was asked to issue a summons to Bruck returnable on 13 May 2009 and so the second day of the hearing. The request was made on behalf of the CEO on 7 May 2009 and I held a directions hearing on 8 May 2009 to consider the request. I refused the request and now give my reasons for doing so.

204. In Cosco Holdings Pty Ltd v Commissioner for Taxation,[208] Spender J approved the approach taken by the Tribunal in the particular case in applying to summonses for the production of documents under the AAT Act the principles applicable to subpoenas duces tecum issued by courts. That approach is consistent with the Tribunal's being based on the judicial model. The tools given to the Tribunal by the Parliament are consistent with those given to courts and appear to have their bases in them. With that in mind, I have gone beyond the particular consideration of Spender J in Cosco to the wider circumstances in which a court may set aside a subpoena in whole or in part. I have done that in order to determine if there are any principles that may be drawn from them and applied to the exercise of the Tribunal's discretion to refuse a request by a party to issue a summons. Whether or not all or some of them may be applied depends, of course, on the particular circumstances, which include the AAT Act, in which the Tribunal exercises its power. I will return to that.

A. Principles developed by the courts to the setting aside of subpoenas

205. In the usual case, a summons is issued without question and three steps are then taken:

"The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs."[209]

206. Who may ask the court to set aside a subpoena? Clearly, the person served with a subpoena may do so. Heydon JA, with whom Mason P and Priestley JA agreed said in Witness v Marsden:[210]

" A witness attending pursuant to a subpoena ad testificandum has a sufficient interest to move that it be set aside. It is not necessary to cite authority for the proposition that a subpoena duces tecum may be set aside on the application of the person served on a variety of grounds, for example that it was being used to obtain discovery against a third party, that it was being used as a substitute for discovery, that it was oppressive, that it had an impermissible purpose, and that it was being used in proceedings for the recovery of a penalty. These are but instances of the court exercising its jurisdiction to prevent an abuse of process: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 101 per Powell J. A subpoena ad testificandum_, or equivalent process, is in like case. In_ Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372 at 385 Moffitt P spoke of 'the invasion by the subpoena procedure of the rights of a stranger'."[211]

207. But what of the party or parties who did not request its issue but who may consider it unsustainable? This question was considered by McClelland J in the context of the former Pt 37 r 8 of the Supreme Court Rules 1970 (NSW). That rule provides: "The Court may, of its own motion or on the motion of any person having a sufficient interest, set aside the subpoena wholly or in part." His Honour did so in Compsyd Pty Ltd v Streamline Travel Service Pty Ltd,[212] in which the defendants had applied for orders setting aside subpoenas issued by the plaintiff to third parties. McClelland J considered that the answer to the question was to be found by beginning with the concept of standing. Did the defendants have standing to make the applications? Speaking of Pt 37 r 8, he said:

"That rule, by its terms, does not confine standing to make such an application to the person to whom the subpoena is directed; all that is required is that the moving party have a sufficient interest. On the other hand, I do not think that the mere fact that the moving party is a party to the proceedings necessarily establishes a sufficient interest in having the subpoena set aside. It would all depend on what interest existed, in fact, in the moving party in relation to the documents which the subpoena required to be produced. If, for instance, the documents were documents in which the moving party had a proprietary interest or if the documents contained information which the moving party claimed to be confidential to it, then, in my view, either of those situations would provide a sufficient interest to justify an application to set aside the subpoena ... So I do not think that this application can be disposed of on the ground of standing without an examination of the connection, if any, between the documents sought to be required to be produced by the subpoenas in question on the one hand, and the defendants on the other.

I would also add this: that the rule provides that the Court may, of its own motion, set aside a subpoena, and one can readily contemplate situations where the Court, having had its attention drawn to the terms of the particular subpoena by a party, might decide to act on its own motion, and the Court could well take such a course where the circumstances indicated that to require a formal application by the person to whom the subpoena was addressed would simply waste money and time ..."[213]

208. A little later in Re Trade Practices Commission v Kimberley Homes Pty Limited,[214] Hill J considered O 27 r 9 of the Federal Court Rules. It provides that the court may, on motion by the person named in the subpoena, set it aside wholly or in part. The notice of motion must be served on the person on whose request it was issued. Three of the four respondents had moved the Court to set aside part of a subpoena addressed to the proper officer of a company requiring the production of certain documents. The subpoena had been issued by a Deputy Registrar of the Court at the request of the Trade Practices Commission (TPC). The Deputy Registrar had no discretion other than to issue it although he or she could have referred it to a Judge for directions.

209. The question for the attention of Hill J was whether the respondents, rather than the company, could move for the subpoena to be set aside. He decided that they could but, in the course of his reasoning discussed the inherent jurisdiction of the Court to set a subpoena aside. He began from the principle that:

" It is a well-accepted rule that a subpoena may be set aside as oppressive and as an abuse of the process of the court if it requires the production of documents which are manifestly irrelevant to the issues between the parties. ..."[215]

210. Other examples of the rule were set out by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart[216] when he said that:

"... a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:

1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ...
2. where to require the attendance of a witness would be oppressive ...
3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ...
4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ...
5. where the subpoena has been used for the purpose of obtaining discovery against a third party...
6. where to require a party to comply with a subpoena to produce documents would be oppressive ...
7. where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing" ..."[217]

This summary was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2),[218] Conti J in Mandic v Phillis[219] and Flick J in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia.[220]

211. Returning to Re Trade Practices Commission v Kimberley Homes Pty Limited, Hill J made it clear that the particular rule of relevance to which he referred is:

"12. ... but an illustration of the wider rule that a subpoena will always be set aside if it is shown to be an abuse of the court's process. The court has a real interest that its process be not abused ...

16. In Hamilton v Oades [1989] HCA 21; (1988-89) 85 ALR 1 at p11, Deane and Gaudron JJ said:

'The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice ... (This power) is not restricted to defined and closed categories ... In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power.'

17. The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are 'seriously and unfairly burdensome, prejudicial or damaging', and 'productive of serious and unjustified trouble and harassment'' Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 62 ALJR 389 per Deane J at 411; [1988] HCA 32; 79 ALR 9 at 45.

18. In my view, once it is accepted that the court has inherent jurisdiction to prevent an abuse of its process it must follow that a party to proceedings before the court is entitled to move the court in respect of some action that has been taken by another party where it is alleged that that action constitutes an abuse of the Court's process and it is accordingly appropriate that the Court be moved by way of a motion, notice of which is to be given to those affected by it."

212. In Trade Practices Commission v Arnotts Ltd,[221] Beaumont J outlined two different aspects of the concept of an abuse of process:

" The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose: see Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-1. But, as Deane and Gaudron JJ observed in Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at 11, the court's general powers in this area have a dual aspect: "The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice ... [This] power ... is not restricted to defined and closed categories ... In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. ..."[222]

Referring to the passage cited by Hill J from Oceanic Sun Line Special Shipping Co Inc v Fay, Beaumont J want on to add:

" In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly [Pty Ltd]."[223]

213. It seems to me that, in looking at what amounts to an abuse of process, more recent authorities have taken a perspective that extends beyond that of the person requesting the issue of the subpoena and that of the person required to comply with its terms if it were issued. It has extended its perspective to the effect on the proceedings themselves and the perception that right-thinking people might have of them. In Commonwealth of Australia v Albany Port Authority,[224] the Court of Appeal (WA) considered whether an order made by a Judge on his own motion setting aside subpoenas as abuse of process had been properly made.

214. In deciding that it had not, both Steytler P and Pullin JA considered the concept of abuse of process and its parameters. Both agreed that what amounts to an abuse of process cannot be exhaustively defined.[225] Referring to abuse of process generally rather than simply in the context of a subpoena, Steytler P said in part:

"... There is no doubt as regards the accuracy of this last proposition. In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ, speaking in the context of the power to stay proceedings as an abuse of process, said that the jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 536 as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'. ..."

In R v Carroll (2002) 213 CLR 635 at 657 [73], Gaudron and Gummow JJ said that 'the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse'. (See also Batistatos [V Roads & Traffic Authority of New South Wales [2006] HCA 27; (2006) 80 ALJR 1100] _at [7] and [9]). What is clear, however, is that the concept extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' (_Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 247); 'productive of serious and unjustified trouble and harassment' (Oceanic Sun Line, ibid; Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 502 and Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 74 - 75); invoked for an illegitimate purpose (Rogers v The Queen (1994) 181 CLR 251 at 286 per McHugh J); or such as to 'bring the administration of justice into disrepute' (Rogers, ibid): see, generally, Batistatos at [14] - [15]. It is also clear that, while many cases of abuse arise from the institution of proceedings, any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process: Rogers, ibid, and Batistatos at [15]."[226]

215. What their Honours refer to as an abuse of process appears in other contexts to be described as oppressiveness. What amounts to oppressive is not something that can be defined with particularity but examples of oppressiveness can be drawn from the cases. So, for example, a subpoena drawn in very wide terms requiring"...the Police to search every Police station in New South Wales to determine whether any of the very broad categories of documents listed in the 27 paragraphs [of the subpoena] are within the possession, custody or control of any police officer ..." was found to be oppressive.[227] Language used in the subpoena that is unclear and embarrassing leads to the same conclusion.[228]

216. By what standard is language assessed? Is it the language used by lawyers, by the recipient of the subpoena or some other language. Clarke J considered this question in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd; Kirby v Southern Pacific Hotel Corporation Ltd:[229]

"The court, in determining whether a subpoena is oppressive, is concerned with whether in all the circumstances the demand is, for relevant purposes, too wide or uncertain. For this purpose it must determine whether the terms of the subpoena convey to the recipient in relatively clear language the document or class of document called for. The court would inquire, I apprehend, as to the meaning which would be conveyed to members of the public as opposed to the meanings which might be conveyed to lawyers engaged in a debate upon construction."[230]

217. Service that comes at a time that is "... too late to enable the person on whom it is served to have a reasonable opportunity of complying with it"[231] may also be regarded as oppressive and lead to the setting aside of a subpoena in whole or in part. Speaking of the policy underpinning subpoenas and of their requirement that third parties spend time and expense in searching for and gathering together the documents sought, Smithers J said in Lucas Industries Ltd. v Hewit:[232]

"It would, no doubt, be a good reason for failure to produce documents that the effort and expense involved in doing so was greater than ought reasonably to be required. This is a matter which would at that stage be capable of rational resolution by the court according to the circumstances. So far as the effort and expense in arranging for production of particular documents in any case exceeded what was reasonable, their non-production would be acceptable to the court. But if a subpoena be wholly set aside on the grounds that on its face it is oppressive, then the subpoena wholly fails and there is the possibility that although some or even substantial compliance might have been undertaken with a minimum of effort, the whole procedure may be needlessly frustrated."[233]

218. Oppression does not entitle the person named in the subpoena to simply ignore it if he or she considers it oppressive. It remains valid until the court sets it aside.[234]

219. In making a decision whether a subpoena is oppressive, regard may be had to the knowledge of its recipient. In McColl v Lehmann,[235] Kaye J said:

"To reject as oppressive or as an abuse of process a subpoena because it directs production of documents by reference to those relating to a specific subject matter within the recipient's knowledge, suggests an excessive indulgence in legalism. Determination of whether the description of documents by that mode satisfies the required test of specification by reasonable particularity ought to be made by taking into account the facts and circumstances within the knowledge of the party to whom the subpoena is addressed. It ought to be expected of the addressee, being mindful of the facts about the subject matter known to him, that he will read the subpoena sensibly."[236]

1. The principles applying to the setting aside of summonses by the Tribunal

220. The principles developed by the courts are a guide to assist the Tribunal in determining principles it will apply in the exercise of its discretion to authorise the refusal of a request for a summons.

221. As must always be the case for a tribunal whose power is conferred by statute, regard must first be had to the statute that confers the power to issue a summons. Power of that sort is given under s 40(1A) of the AAT Act for the purposes of a hearing of a proceeding before the Tribunal. It is given to the Registrar, a District Registrar or a Deputy Registrar and none of them may refuse a request to issue a summons unless the refusal is authorised by a presidential member, a senior member or an authorised member.[237] The power is also given to the member presiding at the hearing of the proceeding.

222. As the High Court said in R v Australian Broadcasting Tribunal; Ex parte Hardiman in the context of the powers given to the ABT under the BT Act:[238]

"... It will be noted that a party is given no right to compel the attendance of witnesses. It is for the Tribunal to decide who should be summoned before the Tribunal to give evidence and produce documents ..."[239]

The same is true of the power given by s 40(1A). The power is discretionary but, by its very nature as a statutory power, it cannot be an unfettered power. Its limits must be found in the AAT Act itself, its subject matter and its object as well as its underlying policy.[240]

223. At the outset, it should be noted that, like a subpoena issued by a court, a summons is issued to a stranger to the proceedings. Like a subpoena, a summons represents "the invasion ... of the rights of a stranger". Those rights may be described in various ways but they essentially protect from disclosure information that a person, whether an individual, or a body corporate, may regard as confidential and which, in some circumstances, the law specifically protects from disclosure. The Privacy Act 1988 is an example. It protects from disclosure personal information but the protection is not without qualification. Taking a record-keeper who has possession or control of a record that contains personal information, that record-keeper is prohibited by Information Privacy Principles (IPP) from disclosing that information to a person, body or agency or to the individual concerned unless one of the circumstances in IPP 11.1 arises. One of those circumstances is described in IPP 11.1(d) when it prohibits disclosure:

"the disclosure is required or authorised by or under law".

224. If served with a summons issued by a person exercising power under

s 40(1A) of the AAT Act and assuming he or she did not challenge it on a proper basis and the challenge was found to be correct, the person named in the summons would be required by law to act in accordance with it. His or her disclosure would be disclosure required by or under law in accordance with IPP 11.1.

225. For that reason, I find myself unable to agree with a statement made in the context of proceedings in the Tribunal that "The summons must also not result in the production of material which would breach the privacy of third parties". This was said by the Tribunal in Re Dunstan and Comcare.[241] The Tribunal relied on Re Bird and Military Rehabilitation and Compensation Commission[242] but did not refer to the particular passage on which it relied. There are two passages in Bird that are relevant but neither states the proposition in this way.

226. In the first passage, the Tribunal in Bird said: "The tribunal must respect such rights [of privacy] unless it is otherwise persuaded and the interests of justice require the release of the documents".[243] In speaking of the "release" of documents rather than of their "production", this sentence is written in terms that suggest it is intended to refer to the second step in the summons process rather than the first. That is to say, it suggests that it refers to whether the parties should be permitted to inspect the documents rather than to whether the summons should be set aside. It does not appear to support the proposition stated in Dunstan.

227. The second passage appears when the Tribunal balanced all competing issues in deciding that:

... having regard to the private rights of the third parties involved, the breadth of the documents sought to be produced and the lack of apparent relevance to the issues in the proceedings, that the summons should be set aside."[244]

This passage does not appear to support the proposition in Dunstan.

228. The Tribunal in Bird referred to the judgment of Stone J in Dorajay Pty Ltd v Aristocrat Leisure Ltd[245] regarding the need for the documents to be relevant. Stone J did not refer to privacy but she did refer to the related issue of confidentiality. On the way in which confidentiality should be considered, Stone J does not appear to have started from a basis that confidentiality is to be preserved unless otherwise persuaded and the interests of justice require a document's release. Instead, her Honour saw confidentiality as a factor that had to be considered. She said that "... the confidentiality of documents sought by subpoena is a relative but not determinative issue in considering if a subpoena should be set aside ...".[246] She cited two authorities, one of which was Spatialinfo Pty Ltd v Telstra Corporation Ltd,[247] in which Sundberg J said:

"... [I]n determining whether a subpoena operates oppressively, it is appropriate to take into account a confidentiality claim. In Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 380-381 the Full Court of the Supreme Court of Western Australia said: '... although, standing alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of documents involved and the type and degree of burden placed upon those to whom the subpoena is addressed.' The Court also referred to the existence of mechanisms for preserving confidentiality."[248]

229. These principles apply equally to the power given to the Tribunal to obtain documents, books or things for the purposes of the hearing of a proceeding before the Tribunal under s 40(1A) of the AAT Act. A hearing of the application for review is a "proceeding" within the meaning of the definition of that word in s 3(1) of the AAT Act. When hearing the application for review, the Tribunal's task is to review a decision made under an enactment. In doing so, it must consider the evidence and material which is probative so that it may make findings of fact on the issues its review of the relevant legislation has identified as those on which it must do so. Having done that, it must work out the correct decision according to law and having regard to its findings of fact. If more than one decision is correct, it must identify the boundaries of the discretion it has to choose the correct decision and select one accordingly.

230. In taking these steps, the Tribunal must observe the rules of procedural fairness. The effect of the authorities gathered by Merkel J in VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs to the effect that the Tribunal must observe, and to the fact that the Tribunal's obligation to consider the issues raised by the material before it, does not mean that it must necessarily seek its own evidence or material or that it must permit the parties to seek all relevant evidence or material. It must perform the role that it has been assigned but must bear in mind that it has been given that role in a particular environment. It is an environment in which the AAT Act and the enactment conferring the right to apply for review provide, as it were, the stage and setting on which and in which the review is conducted.

231. The boundaries of the stage are immediately drawn by the terms in which the power is given. The first arises from the fact that the power given by

s 40(1A) to summons a person is given "for the purposes of the hearing of a proceeding before the Tribunal".[249] The power may not be used in the course of a proceeding for the purposes of obtaining documents that may assist one or more of the parties to the proceeding to pursue a collateral purpose even if it is a purpose that bears a relationship to the decision being reviewed by the Tribunal but does not raise an issue that is reviewable. As it would be put in the context of a subpoena, it must be issued in good faith, and so bona fide, for a purpose relevant to the review.

232. Therefore, in considering whether to set aside a summons, it must be examined with that in mind. If the documents, books or things it seeks "...could reasonably be expected to throw light on some of the issues in the principal proceedings"[250] then the relevance of the summons for the purposes of the hearing of the proceeding will be established. "It is not a question of looking at the documents to see if the documents might permit a case to be made."[251] It is clear from the authorities that the relevance of the documents sought in the summons requested does not have to be established on the balance of probabilities. As Bennett J said in Comcare v Maganga:

"... the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings ...

Further, the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation ... or if they might be used for a legitimate forensic purpose in cross-examination ... ".[252]

233. If the summons is essentially based on mere speculation that the person named in it has relevant material, its being seen as for the purposes of the hearing of a proceeding becomes more tenuous. Principles developed by the courts in relation to "fishing expeditions" when considering subpoenas will raise themselves for consideration. They are part of a wider group of principles developed by the courts to determine whether a subpoena is oppressive. Given that the person answering the subpoena is a stranger to the proceedings, the principles can be seen as tools to determine the proper balance between obtaining evidence and material to the issues between the parties in a matter and the burden imposed upon the recipient of the subpoena. Precisely the same balance must be achieved in deciding whether a request for a summons should be refused or, if issued, a summons should be set aside.

234. A fishing expedition has been described by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd[253] in this way:

"A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not."[254]

As King CJ, with whom both White and Millhouse JJ concurred, said in Hunt v Wark:[255] "... There must be some reason to suppose that the documents sought will be capable of being used ...."[256]

235. Expressing this principle in terms of s 40(1A) of the AAT Act, a request to issue a summons for a purpose of this sort will have grave difficulty in meeting the test that it be issued for the purposes of the hearing of the proceeding.

236. In relation to a summons to produce books, documents or things, the second factor that draws the boundaries of the stage is expressly stated in s 40(1A).

It is a factor that extends the stage in one sense. The summons is to produce books, documents or things in the possession, custody or control of the person named in the summons. Nothing in s 40(1A) or in the AAT Act gives the person so named the right or power to determine the books, documents or things to be produced by reference to their relevance or evidentiary value to the issues being decided by the Tribunal. The recipient must produce all books, documents or things. In this regard, a summons is analogous to a subpoena duces tecum. It is distinct from an order for discovery which, although not specifically provided for in the AAT Act, could be made under s 33.[257]

237. In this case, the Customs Act does not suggest any particular boundary on the exercise of the power although it does, in my view, have an impact upon the theatre in which the stage and setting are located. In the context of administrative review, the outer extremities of that theatre are defined by notions of relevance, thoroughness and fairness. Expedition may also be a defining factor but it is apparent from the judgment of Muirhead J in TVW Enterprises Ltd v Australian Broadcasting Tribunal that expedition cannot be used as a defining factor that overrides relevance. Expedition may persuade the Tribunal not to permit a party to pursue a point or a summons because that party considers a point has relevance. Having heard from all of the parties as to its relevance, it must decide for itself whether the relevance of the point is such that fairness, and so thoroughness, requires that it be pursued.

238. The terms of the enactment conferring power on the Tribunal to review a decision may also have an impact upon the location of the extremities of the theatre in which the power to refuse a request to issue a summons may be exercised. It seems

to me that the Customs Act provides an example of such an impact. I set out the process by which an application for a TCO is screened and a TCO made or the application refused. I have done the same in relation to an application or the revocation of a TCO. Unlike the application for a TCO, the application for its revocation is not screened.

239. What is clear from the Customs Act is that in neither situation is the CEO required to have regard to all of the relevant information. Certainly, s 269M provides that the CEO may invite a written submission from a person he considers may have reason to oppose the making of the TCO and ask any person (whether or not the applicant for the TCO or a person making a submission) to produce a document or material relevant to the consideration of the application. Section 269SF(1) makes a similar, although not identical, provision in relation to an application for revocation of a TCO. Both ss 269M(5) and 269SF(3) provide that the CEO must not take into account any submission (in relation to an application for a TCO), information, document or material if the person from whom it was requested refuses or fails to supply it within the time stipulated by the CEO. The time limits are such that, even if the CEO knew that he had received relevant information, he could not have regard to it in deciding whether to make or revoke a TCO.

240. The same is true of the CEO's powers when reviewing his decision, whether to make or revoke a TCO, under s 269SH. Section 269SH(7) makes it clear that the CEO must not take into account any new material not produced to him by the applicant within 28 days after the notification of the original decision in the Gazette.

241. With one exception, Parliament probably intended the same to be true when the Tribunal reviewed the CEO's decisions. For the reasons I have given above,[258] the provisions of s 269SHA apply only to the review of a decision made by the CEO after reconsidering a decision made on a TCO application. They do not apply to the CEO's decision made after reconsidering a decision on a request for revocation for that decision is made under neither s 269SH(1) nor s 269SH(4) but under s 269SH(5). Only decisions made under ss 269SH(1) and (4) are the subject of s 269SHA. In relation to them, s 269SHA(5) provides that, unless the Tribunal makes an order to the contrary, any document on which a party wishes to rely must be filed and served on other parties to the proceeding no fewer than 28 days before the date set for the hearing.

242. Section 269SHA(5) does not apply in these proceedings for they relate to the CEO's decisions in relation to applications for the revocation of TCOs. I do not think that the omission of the review of decisions made under s 269SHA(5) should be regarded as placing them in a different position from those made under s 269SHA(4). The omission would seem to be unintended but I place no weight on that. What I do place weight on is that the provisions regulating and limiting the CEO's ability to have regard to what may turn out to be relevant information is common to decisions made under both sections. The same is true of the limits placed on the CEO in making the original decisions. What is clear is that Parliament did not look to the CEO to make decisions based on the best or most extensive material available but only on the material available in the predetermined time frames. It could be said that commercial reality requires such an approach but it could equally be said that commercial reality and the potential impact upon the Commonwealth's revenue requires that the approach be different but policy making is not within the scope of the Tribunal's powers. It is limited to the identification of the policy behind Parliament's words in appropriate cases.

243. Whether s 269SHA(5) applies or does not apply and whether I am starting from a position in which the Tribunal may not rely on documents filed outside the specified time limit without leave or whether I am starting from a position that does not have that constraint, as in this case, it seems to me that the limitations placed upon the CEO must be a relevant consideration in deciding whether or not to authorise the refusal of a request to issue a summons.

244. Fairness remains to be considered. It was referred to by Muirhead J in TVW Enterprises Ltd v Australian Broadcasting Tribunal and I understand his Honour to mean both procedural fairness between or among the parties and fairness in the sense of acting with "Honesty, impartiality, [and] justice ..." both to them and to those affected by the proceedings.[259] I have already referred to procedural fairness as between the parties. In deciding whether to refuse a request to issue a summons, thought must be given to whether the Tribunal will be able to meet its obligation under the rules of procedural fairness generally and its obligation under s 39 of the AAT Act.[260] Whether it can do so must be considered in light of such matters as the amount of time the parties have to inspect documents produced on the summons and to consider their ramifications (if any), the time in the course of events in the Tribunal at which the summons is requested and the power of the Tribunal to adjourn its consideration.

245. Fairness in the latter sense is a matter that relates to the person named in the summons. It was referred to by Spender J in Cosco and not discounted as a proper ground on which the Tribunal may rely. It is the ground known as "oppression". Much earlier, it had been accepted in one of its manifestations as a legitimate basis on which the Tribunal could refuse to issue a summons. In Pancontinental Mining Ltd and Others v Burns and Others,[261] von Doussa J said:

"58. In my opinion the summons insofar as it sought documents or correspondence of or between 'associated companies' of Pancon or Rothschilds Australia Limited was oppressive. The notion of an 'associated company' is capable of a range of meanings. As drawn, paragraphs 2, 3 and 4 of the summons would require Pancon to form a judgment as to what companies were 'associated', and this could in turn depend in part on a consideration of whether the activities of a particular company could be relevant to the issues raised in the applications for review. Only by forming this judgment could Pancon decide what documents it should produce. It is oppressive to place upon a stranger to the proceedings an obligation to form a judgment as to what is relevant to issues in the substantive proceedings: Waind v Hill and National Employers' Mutual General Association Ltd (1978) 1 NSWLR 372 at 382."[262]

1. Reasons for refusing request on behalf of the CEO to issue summons

246. I considered the CEO's request to issue the summons in light of the principles that I have drawn in the preceding section of my reasons. I will begin with the decisions that are under review and the course of the proceedings before the matter came on for hearing.

247. As the decisions were made in respect of applications for the revocation of TCOs, the issue that must be determined in each is whether the person applying for revocation was "a producer in Australia of substitutable goods in relation to the goods covered by the order" on the day he or she made the application. In the case of seven of the applications (proceedings No V200601106-1112), AWM applied for revocation. Therefore, the issue to be decided was whether AWM was a producer in Australia of substitutable goods on the day it made the application for revocation and so on 16 June 2006 and, by virtue of reading ss 269SB(1)(b)(ii) and

ss 269E(1)(a) and (c) either two years or, in the case of production on an intermittent basis, five years before that date.[263] The same issue arises in the case of proceedings No V200600759-764. The date on which it must be decided whether Bruck was "a producer in Australia of substitutable goods in relation to the goods covered by the order" is 21 February 2006 and either two or five years before that date depending on whether production was said to be intermittent or not.

248. In relation to proceedings No V200601106-1112, AWM has indicated both implicitly through its actions and explicitly at the hearing that it does not pursue its claim that it is "a producer in Australia of substitutable goods in relation to the goods covered by the" relevant TCOs. It did so implicitly when it did not lodge any "witness statement from any witness whose evidence is to be relied on and any other document to be relied on at a hearing of these applications" in accordance with the various orders by a differently constituted Tribunal. AWM was not a party to proceedings No V100600759-764 and so was not given an opportunity to lodge any statements or material in them.

249. In all matters, General Merchandise lodged statements to which I have referred. The CEO lodged neither statements nor material. That was so even though the CEO noted on the hearing certificate lodged in V200600759-764 that "One or two witnesses from Bruck Textiles" were "... intended to be called to give oral evidence". The CEO also noted that he required for cross-examination the witnesses called on behalf of General Merchandise. General Merchandise named four persons it intended to call in all proceedings. When the Tribunal could not find a suitable hearing date, the parties were asked to lodge further hearing certificates. Neither made any alterations to the information they had provided earlier. Notices of the five days reserved for the hearing of all applications were sent to all parties in a letter dated

27 January 2009. Apart from a request that resulted in an amended confidentiality order dated 6 May 2009 to allow the counsel and solicitors acting for General Merchandise to have copies of the documents described as "commercial in confidence" and being documents provided by either Bruck or AWM, nothing more was heard from the parties until Mr Komora's letter dated 7 May 2009 requesting the issue of the summons.

250. Mr Komora stated that the Australian Customs Service (ACS), and so the CEO, had been placed in a difficult position once AWM had told it that it did not intend to lodge any material in support of its position. That had occurred on 24 March 2009. Bruck made it aware that it was not pressing its claims during the same month. Until that time, AWM and Bruck had never made the ACS aware that they did not have relevant material.

251. Some might think that AWM had given the CEO a hint that it was not interested in leading evidence or producing relevant material when it did not lodge in proceedings No V200601106-1112 any witness statements or material by the dates directed by the Tribunal. Bruck was not a party to any of the applications and was not subject to the directions. Conceivably, the member constituting the Tribunal could have directed AWM to lodge material in its possession that supported the claim it had made in its application to the CEO for revocation of the TCOs that it was, at the relevant date, "a producer in Australia of substitutable goods in relation to the goods covered by the" relevant TCOs. The member chose instead to frame the direction in terms of the witness statements and any other document on which the parties intended to rely. That is an approach more akin to an adversarial body than an inquisitorial body but, in light of the provisions of the Customs Act to which I have referred already,[264] it is understandable and, perhaps, the only approach. The provisions relating to the making and review of TCOs by the CEO do not attempt to ensure that he has all the relevant information. Even though, in my view, s 269SH(5) does not apply in these proceedings, it too is focused only on the material on which a party to the proceedings intends to rely.

252. Until 7 May 2009, the Tribunal and, presumably, General Merchandise and AWM had no indication that the CEO would seek to summons Bruck. It could only do so in relation to proceedings V200600759-764 for whether or not Bruck was a producer in Australia of substitutable goods is irrelevant in V200601106-1112. Bruck requested the revocation of the TCOs the subject of V200600759-764 but did not request the revocation of those the subject of V200601106-1112. Mr Komora appeared to suggest that Bruck and AWM could be regarded as one and the same entity because Bruck owns AWM.

253. If I understood him correctly, I cannot accept that proposition. Assuming both are registered under the Corporations Act 2001 (Corporations Act), each is a company[265] having the "legal capacity and powers of an individual ..."[266] and all the powers of a body corporate. One body corporate may be a subsidiary of another body corporate in the circumstances described in s 46 of the Corporations Act and expanded in ss 47 and 48. In summary, one is a subsidiary of another if the second body corporate controls the composition of the first's board, is in a position to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the first body or holds more than one half of the issued share capital of the first. There are consequences under the Corporations Act in being regarded as a subsidiary. So, for example, a holding company may be liable in some circumstances for the insolvent trading of a subsidiary.[267] Certain aspects of shareholdings in the two companies are regulated under Part 2J.2 of the Corporations Act. For all that, there is no suggestion in the legislation that the two companies are anything other than separate bodies corporate albeit that one is controlled by the other. The two remain separate legal entities even though one is regarded as the holding company of the other which is regarded as a subsidiary.[268]

254. Where a body corporate is a holding company of another body corporate, the subsidiary of another or a subsidiary of a holding company of another body corporate, each is related to the other.[269] They also become associated entities by virtue of s 50AAA(2). Just as subsidiaries and holding companies are the subject of particular regulation under the Corporations Act, so too are related bodies and associated entities. At no time does that regulation impinge upon their essential character as separate legal entities. Certainly, one may control the other or be responsible for the other but control and responsibility do not amount to one being subsumed in the other.

255. That leads me to conclude that, however the relationship between Bruck and AWM would be regarded under the Corporations Act, they remain two separate legal entities. For the purposes of the proceedings in the Tribunal, AMW is joined as a party to one and the CEO asked Bruck to be summonsed in the other. Had the summons been issued to Bruck, the material called for related to the production of the relevant items of linen by it. Quite apart from the fact that there had been no direction that the evidence produced in proceedings No V200600759-764 could be used in proceedings No V200601106-1112 and vice versa, there was no point in making such an order. Material obtained from Bruck regarding its manufacture related to the issue that had to be decided in one set of proceedings. It could not reflect on the issue that had to be decided in the other proceedings i.e. whether a separate legal entity being AWM was a producer in Australia of substitutable goods at the relevant time.

256. That brings me to procedural fairness between the parties. The request for the summons arrived on a Thursday afternoon and was considered at a directions hearing on the following day. The hearing was due to start on the following Monday but the request was for a summons returnable two days later on the Wednesday.

Mr Komora contemplated that General Merchandise would present its case on the first day. The difficulty that I have with that proposition is that General Merchandise would be expected to present its case in proceedings V200600759-764 with no knowledge of the documents to be produced by Bruck and so with no knowledge of what might turn out to be the majority of the material relied upon by the CEO in presenting his case. General Merchandise certainly knew what the CEO's contentions were for they had been set out in its SFC but a contention is just that: "a point that one asserts or maintains in argument ...".[270] It is one thing to assert and another to support that assertion by reference to evidence or relevant material. Only when the evidence or material has been examined, can its probity and weight be considered by the parties and, if called upon, by the Tribunal.

257. Assuming that it were appropriate for General Merchandise to inspect the material produced by Bruck or at least for their legal representatives to do so,[271] the opportunity given it at that stage is not the same as the opportunity afforded it when it has the material before it presents its case. In extreme cases, it may be that knowledge of the material produced on summons would lead an applicant to choose to lead no evidence, to shape and present its case differently or to lead additional evidence. It is difficult to conceive that General Merchandise would have had time to think about its position regarding matters such as these let alone gather any evidence to counter the material. In this case, I consider that it would have been procedurally unfair to authorise a course of action that placed General Merchandise in that position.

258. Procedural fairness could have been achieved, of course, by adjourning the whole of the hearing of the applications in V200601106-1102 and presumably V200600759-764 because the law and principles are common even though the evidence will be different. I would only have considered that course if the summons requested had been in a form that did not appear on its face to be oppressive. This is not a case in which I needed someone from Bruck to give me evidence to that effect.

259. If issued and served, the summons would have required Bruck to locate, sort and produce material over a five year period and do it over fewer than three working days and a weekend. That is clearly insufficient time. That is so even though Bruck had initially claimed to be a producer in Australia of substitutable goods. Even if it could be said that it should have kept to one side the documents it relied on in making the application for revocation (and I do not know whether that could be said), it made no mention in its application of being an intermittent producer of the relevant goods. It referred only to material in the year prior to its applications. Perhaps it could have been expected to keep to one side the relevant information supporting its applications. That information would not have extended beyond the previous year but the information sought by the summons extended over the previous four years as well.

260. The terms of the summons would have required Bruck to produce documents for all bed sheets, pillow cases and quilt covers regardless of whether they were of a type in respect of which Bruck had claimed in its applications for revocation to be a producer in Australia of substitutable goods i.e. goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put. The summons requires the production of all documents relating to all processes relating to all such goods over a five year period and to do so in three working days. It is oppressive.

261. In short, the terms of the summons asked for too much, too soon and did so at a time too late in the proceedings. Consequently, I refused to authorise the issue of the summons to Bruck. I did consider whether I should adjourn the hearing of all of the applications to enable the summons to be served and Bruck to be given an appropriate time frame within which to produce the documents. I decided not to. The parties had been given notice of the May 2009 hearing dates in January 2009. I set out the terms of the Statements of Facts and Contentions lodged by each of the parties at some length in order to show that the issues on which the parties would need to produce material were clear well before the hearing dates were set. The CEOSFC sought to rely on AWM's SFC. In many cases of this sort, the real contestants are the importer and the local manufacturer claiming to be a producer in Australia of substitutable goods. The fact that this is usually the case does not detract from the decision-maker's duty to assist the Tribunal. It is the CEO's duty to assist the Tribunal to reach the correct or preferable decision. That duty would extend either to obtaining material relevant to establishing or otherwise the criteria that must be met in order to make the decisions or to ensuring that it is available through another party. Any party may rely on evidence or relevant material produced by another to make out its case as well as on that which it produces itself. If a party chooses to rely solely on evidence and material to be led by another, it would be well advised to make sure that the party will indeed lead it. In this case, there was no such other party. True it is that it could rely on evidence and relevant material produced by General Merchandise but that was evidence and material produced with an eye to establishing the contrary of the case for which the CEO contended. The CEO knew this well before 7 May 2009. It was clear that there might be a paucity of material when AWM did not lodge any witness statements in the matters in which it was joined as a party. That was in December 2008. Unless the CEO took some steps in those relating to Bruck, it was also clear at that time that there would be no material supporting the decisions under review beyond that in the T documents. There might have been discussions between the parties that might have led those advising the CEO that the matters would settle. When a matter has been listed for hearing, discussions of that sort are to be encouraged but an eye also needs to be kept on the preparation of the case should they not lead to a resolution. To try to obtain material two working days before the hearing was listed to commence was simply too late.

262. These applications seek review of the CEO's decisions to revoke TCOs

0511452, 0511453 and 0511363 and to revoke TCOs 0511454, 0511455 and 0511361 and reissue them as TCOs 0607137, 0607143 and 0607144. The wording of each of these TCOs is concerned with bed linen, being any of sheets, pillowcases, quilt covers and doona or duvet covers. Each comes under a different Customs Tariff Classification (CTC) and each CTC refers to a different material from which those goods are made.

263. The consequence of my refusing to authorise the issue of the summons to Bruck is that I am left with the evidence and material led by General Merchandise and the material in the T documents lodged on behalf of the CEO. I have set out the Statements of Facts and Contentions of each for the reason I have already given. Although parties may agree certain facts as a result of the process of lodging and exchanging them and the Tribunal may accept their agreement, they cannot be regarded as evidence of the facts contended for. They are no more than statements of position.

264. The decisions under review were made on requests made by Bruck for the revocation of TCOs. The effect of s 269SC(1), which I have set out above, is that the CEO must be satisfied of two things. First, he must be satisfied that, on the day Bruck lodged its request it was a producer in Australia of substitutable goods in relation to the goods in the TCOs of which it seeks revocation. Second, had the TCOs not been in force when Bruck made its application for their revocation but an application for them had been made on that day, he must be satisfied that he would not have made them.

265. They must be interpreted according to the rules of statutory interpretation for they are a species of delegated legislation. Speaking of their predecessors, Commercial Tariff Concession Orders (CTCOs), the High Court said in Collector of Customs v Agfa Gevaert Ltd:[272]

"... [F]or the purposes of interpreting the relevant phrases, the CTCOs should be considered as a species of delegated legislation .... The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation .... To use the words of Dixon J, 'subordinate or delegated legislation ... [stands] on the same ground as an Act of Parliament and [is] governed by the same rules of construction' ... [King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 195].

Because the CTCOs are governed by the rules of statutory construction, the speech of Lord Simon of Glaisdale in Maunsell v Olins ... [[1975] AC 373 at 391 ] is a useful starting point in determining the construction of the instruments. His Lordship said:

'Statutory language, like all language, is capable of an almost infinite gradation of "register" - ie, it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.'"[273]

266. Since the Legislative Instruments Act 2003 (LI Act) came into operation, a TCO has been regarded as a legislative instrument. That is so because it is an "... instrument in writing ... that is of a legislative character ... and ... that is or was made in the exercise of a power delegated by the Parliament" within the meaning of s 5 of the LI Act.[274] None of the qualifying provisions of ss 6, 7 and 9 apply.

A TCO is an "instrument in writing" in the sense that it is "a formal or official legal document"[275] in writing and, as it is not an explanatory statement or a compilation, is not an instrument excluded from the meaning of the word "instrument" by s 4(1) of the LI Act. It is made by the CEO in the exercise of powers conferred under the Customs Act as I have described. Furthermore, it is "of a legislative character" for it comes within the meaning of that expression as given by s 5(2) of the LI Act. That provides:

"Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:

(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and

(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right."

267. By its very nature a TCO meets these criteria for it alters what would otherwise be the application of the CT Act and an importer's obligation, or the extent of an importer's obligation, to pay duty upon imported goods. As the Customs Act does not indicate any contrary intention, it is to be interpreted on the basis that:

"(a) the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and

(b) expressions used in any legislative instrument so made have the same meaning as in the enabling legislation; and

(c) any legislative instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the rule-maker."[276]

268. Even if I am incorrect in my view that a CTO is a legislative instrument for the purposes of the LI Act, its interpretation will be subject to the provisions of the Acts Interpretation Act 1901 (AI Act). Section 46(1) of the AI Act provides:

"If a provision confers on an authority the power to make an instrument that is neither a legislative instrument for the purposes of the Legislative Instruments Act 2003 nor a rule of court, then, unless the contrary intention appears:

(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and

(b) expressions used in any instrument so made have the same meaning as in the enabling legislation; and

(c) any instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the authority."

1. On the day of lodgement of request for revocation, were Broadcloth, Santina and Moondaisy products substitutable goods in relation to the goods the subject of TCOs 0511452-5 and 0511361 and 0511363?

269. The first criterion under s 269SC(1) is that, on the day of lodgement of the request for revocation of the TCOs, Bruck (being the person requesting their revocation) be a producer in Australia of goods that are substitutable goods in relation to the goods that are the subject of the relevant TCO. I have dealt with each matter that must be considered under separate headings and have done so as at 21 February 2006 when Bruck applied for revocation of the TCOs.

1. Does Broadcloth meet the description "substitutable goods" - TCOs 0511452, 0511453 and 0511363?

270. In the following two sub-sections, I set out my reasons why I am not satisfied that Broadcloth is produced in Australia or that it is put, or capable of being put, to a use that corresponds with a use (including a design use) to which the goods that are the subject of the TCO can be put.

A.1 Is Broadcloth put, or capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put?

271. I will begin with TCOs 0511452, 0511453 and 0511363 which apply to non-printed bed linen being sheets, pillow cases, quilt covers, doona covers and duvet covers. Before working out the use, including a design use, to which the goods that are the subject of the TCO can be put, I need to identify the goods that are referred to in the TCO. In doing so, I have had regard to one of the rules of statutory construction that now finds expression in s 15AA(1) of the AI Act:

"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

272. I will begin with the meaning of the individual words. A "sheet" is "a large broad rectangular piece of fabric, especially for covering the mattress of a bed. ...".[277] Its ordinary meanings also include "any large wide piece or expanse ..."[278] and I will return to that meaning. A "pillow case" is "a removable washable cover for a pillow".[279] A "doona" is an Australian word for a "duvet"[280] and a "duvet" is "a thick quilt filled with feathers or man-made fibres, for use on a bed instead of a sheet and blankets ...".[281] A "quilt" is "1 a type of bedcover that is made by sewing together two layers of fabric, usually with some kind of soft padding material, eg feathers or wadding, etc in between them. The padding is held in place by the stitching which is often made to form regular or decorative patterns. 2 a bedspread that is made in this way but which tends to be thinner. 3 loosely a duvet; a continental quilt."[282] A "bedcover" is a "bedspread", which in turn is "a top cover for a bed".[283] The meanings of the word "cover", when used as a noun, include "... 1 something that covers. 2 a lid, top, protective casing, etc. 3 the covering of something. ..."[284]

273. The ordinary rules of statutory interpretation would suggest that taking the words individually in this way is an inappropriate approach. As Stamp J said in Bourne v Norwich Crematorium Ltd:[285]

"Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language."[286]

274. It is no different in the case of a TCO which is not, strictly speaking, a sentence. The words must be understood in their ordinary meanings in the context of the TCO. Part of that context is the relationship of the TCO to a particular Sub-heading of the Customs Tariff Classification. The effect of the TCO is to vary the customs tariff otherwise applicable to the importation of goods of that type. The TCOs with which I am concerned in this section of my reasons relates to Sub-headings coming under Heading 6302: "BED LINEN, TABLE LINEN, TOILET LINEN AND KITCHEN LINEN". The particular Sub-headings relate to different characteristics of the materials from which the goods are made.

275. This is the context in which the words used in the TCOs must be interpreted and their uses considered. Taking that context into account, the uses to which the goods in the TCOs can be put are their uses as items of bed linen that are used for protecting or covering items on a bed. That is to say, sheets are used to cover a mattress and, in the case of the top sheet, to protect the blankets or the like, pillow cases cover and protect pillows and quilt, doona and duvet covers cover and protect quilts, doona and duvets. The particular manner in which that end is achieved is not relevant. If, for example, the sheets are fitted sheets, they are no less used to cover

a mattress or protect blankets than a flat sheet. The same is true of pillow cases and quilt, doona and duvet covers. Whether their ends are closed by means of a flap of material that slips over and holds in a pillow, for example, or whether they are closed with ties, buttons or press studs, their end use is the same: the covering of a pillow.

276. The context in which the words are used leads me to conclude that this is the limit of their uses. Their uses cannot be read as extending to any use to which they may conceivably be put. It could be said, for example, that sheets and even quilt, doona and duvet covers are capable of being used as drop sheets for protecting floors and furniture by a house painter and that pillow cases can be hung from a real or metaphorical mantelpiece at Christmas by those who hope that they will be filled with gifts. These uses would not, however, reflect the ordinary meanings of the words used in the TCOs and the Tariff Classification to which they relate.

277. Are the goods produced by Bruck capable of being put to a use that corresponds with these uses? Beginning with Broadcloth, it is contended that it is substitutable for TCOs 0511452, 0511453 and 0511363. On the basis of the screen dump from Bruck's website regarding Institutional Fabrics, I find that Broadcloth is available in lengths of material provided those lengths are a minimum of 300 metres and the colours are white, hospital blue or hospital green. The Finished Fabric Cost Sheet included among the confidential documents is costed in dollars per 100 metres. That also supports my finding that Broadcloth is available as lengths of material or as sheeting but not otherwise.

278. On the evidence and material I have, I am not satisfied that Bruck produces goods from Broadcloth that are capable of being put to uses corresponding with those in TCOs 0511452, 0511453 and 0511363. On the basis of the material in Bruck's own application, I find that Bruck imports the raw base cloth and then dyes and finishes the fabric ready for use and sale as "bed sheeting". The choice of the word "sheeting" suggests "fabric used for making sheets"[287] for beds rather than made up sheets for beds. The words that follow reinforce that view. They are that the "fabric is also suitable and is used for pillow cases". That it is "also used" for these items reinforces the view that Broadcloth is fabric used for making sheets just as it is also suitable for making pillow cases but does not go further to suggest that they are made up into sheets, pillow covers or quilt, doona or duvet covers. Certainly sheeting can be cut and used as a protection for these various items but unhemmed, raw edged pieces of material placed over a mattress or wrapped around a pillow or a quilt, doona or duvet do not lead me to conclude that Broadcloth is put to a use that corresponds with the use to which sheets, pillow cases or quilt, doona or duvet covers are put. That leads me to conclude that Broadcloth is not substitutable goods for those that are the subject of TCOs 0511452, 0511453 and 0511363.

279. Despite that conclusion, I have looked also to the General Rules for the Interpretation of the Harmonized System (Interpretation Rules)[288] to see whether their application leads to a different conclusion.

280. I am also aware that the Interpretation Rules "... must be used for working out the tariff classification under which goods are classified"[289] and that I am not classifying goods. Even so, I have looked at them to see if they support a conclusion that bed sheeting that is capable of being cut and finished to become sheets, pillow cases and quilt, doona and duvet covers can be regarded as being put or capable of being put to a use that corresponds with a use (including a design use) to which sheets, pillow cases and quilt, doona and duvet covers can be put. I have done so, because s 269C(1), as it was formerly enacted, provided that a CTCO must be granted if goods serving "similar functions" to the goods in relation to which a CTCO has been applied for are not produced in Australia or are not capable of being produced in Australia. Identical goods were those taken to serve similar functions by s 269C(3) and s 269C(4) extended that meaning. This provision no longer has a place in the Customs Act but, like the definition of "substitutable goods" in the current Customs Act, it focuses upon the purpose of goods. It does so by reference to "function" rather than "use". In view of that, it seems to me that the statement by Northrop J in Polypacific Pty Ltd v Comptroller-General of Customs[290] is equally applicable to the task I must undertake:

"... It is not permissible, in my opinion, to consider subsequent products in the chain of production with comparable goods when considering the application of s 269C."[291]

281. Rule 1 of the Interpretation Rules provides that classification must be determined according to the terms of the headings or any relative Section of Chapter Notes. Provided those headings or Notes do not require otherwise:

"2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this Rule), presented unassembled or disassembled."

282. In Sharp Corporation of Australia Pty Ltd v Collector of Customs,[292] Davies, Hill and Beazley JJ said:

"25. It is fundamentally a question of fact whether goods in a set have an essential character and what that essential character is. In Times Consultants Pty Limited v Collector of Customs (Qld) at 462, Morling and Wilcox JJ said: 'In our opinion, it was a question of fact whether one material component gave to the goods their essential character.' Fox J, in his dissenting judgment, similarly said at 456:-

_'_In the present case, the words "essential" and "character"

are par excellence words which have an ordinary meaning, and

the combined phrase "essential character" cannot be regarded

"essential character", as his Honour's reasons disclose, is

not precise, or clean cut. Although perhaps not always easy

to apply to goods, the words have an ordinary meaning, which

_'_Character ... 9. The aggregate of the distinctive features

of any thing; essential peculiarity; nature, style; sort,

_'_Essential ... 2. of or pertaining to essence, specific

'Essential character: in scientific classification, the

marks which distinguish a species, genus, etc. from the

others included with it in the next superior division.'

27. With respect, we cannot accept this approach. The words 'essential character' are a well known expression which has long been used when the task is to classify or characterise goods. In Thomson Australian Holdings Pty Ltd v Federal Commissioner of Taxation (1988) 20 FCR 85 (affirmed on appeal (1989) 25 FCR 481), where the issue was whether certain publications were 'catalogues or price-lists', terms used in item 51(1)(c) of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), the Court said, at 86:-