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[1988] FCA 326
mixed. Extension of time granted to first, second and fourth respondents to file notices of objection to competency, subject to each respondent bearing the applicant's costs of their respective motions
This case concerned whether the Federal Court should allow the Customs officials and a cement company more time to file formal objections to the Court's power to hear a case about anti-dumping duties on imported cement. The applicant, Merman Pty Ltd, had started court proceedings challenging a decision to investigate whether dumping duties should be imposed on cement clinker it imported from Korea. The respondents missed the deadline to file notices objecting to the Court's jurisdiction. The Court held that these notices serve a different purpose from challenges to the Court's power to hear the case—they are more like formal pleadings setting out legal arguments that would need to be addressed anyway. Because the arguments in the notices would have been raised during the main hearing regardless, and because the case was moving quickly, the Court allowed the late filings but ordered the respondents to pay the applicant's costs for the delay.
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IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION
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No. WAG 65 of 1988 BETWEEN MERMAN PTY LTD Applicant and COMPTROLLER-GENERAL OF CUSTOMS First Respondent and THE HONOURABLE MINISTER FOR SCIENCE, CUSTOMS AND SMALL BUSINESS Second Respondent and SWAN PORTLAND CEMENT LIMITED Third Respondent and
This is a decision on motions by the first and second respondents and the fourth respondent, heard concurrently, seeking extension of the time within which they may file notices of
Pursuant to 0O.54A £.3(2) of the Federal Court Rules ("the Rules") the application is a composite application seeking orders under ss.5 and 6 of the Administrative Decisions (Judicial
Review) Act 1977 and s.39B of the Judiciary Act 1903.
The applicant seeks orders relating to decisions, and/or conduct engaged in for the purpose of making a decision, under the Customs Tariff (Anti-Dumping) Act 1975 ("the Act") and the Agreement on Implementation of Art.VI of the General Agreement on
In short the applicant contends that a notice issued by the first respondent on 2 March 1988 initiating a formal inquiry into whether dumping duties should be imposed upon cement clinker imported from the Republic of Korea by the applicant, and, thereafter proceeding with the inquiry, were decisions, or conduct leading to a decision, subject to review under the Administrative Decisions (Judicial Review) Act 1977 as involving errors of law. In addition, the applicant seeks relief from the Court in respect of the same conduct pursuant to s.39B of the Judiciary Act 1903 which reposes original jurisdiction in the Federal Court with respect to any matter in which a writ of mandamus or prohibition
or an injunction is sought against an officer of the Commonwealth.
The application was issued on 16 May 1988 and on that day an interlocutory hearing took place and _ some interim restraining orders were made. On the same day and at their request the third and fourth respondents were added as parties to
On 31 May 1988 the interim orders were discharged and the matter was set down for a directions hearing on 13 June 1988. After directions hearings on 13 and 16 June the matter was listed
On 22 June the fourth respondent filed its motion seeking extension of time to lodge a notice of objection to competency. On 24 June the first and second respondents filed a
The first and second respondents and the fourth respondent should have filed and served a notice of objection to competency by 31 May to comply with the terms of 0.54 r.4 of the Rules. However, it was not until 13 June that the first true directions hearing was held, and the ramifications of the application addressed, earlier hearings being concerned with the need for interlocutory relief. On the adjourned directions hearing the fourth respondent gave notice of its intention to seek leave to lodge a notice of objection to competency. The first and second respondents, in truth the principal respondents, did not
The proposed objections to competency sought to be filed by the first and second respondents and the fourth respondent contend that there has not been a decision under an enactment for
the purposes of s.5 of the Administrative Decisions (Judicial
Review) Act 1977 and that there has been no conduct within the meaning of s.6 of that Act. In addition, the fourth respondent objects that the matters complained of by the applicant are not matters in respect of which the Court has jurisdiction pursuant to
Pursuant to 0.54 r.5(c) of the Rules the Court may direct that an objection to competency be heard and determined before the hearing of the application to which the objection relates. Order 54A, which deals with applications made to the Court under 8.39B of the Judiciary Act 1903, provides that' the provisions of 0.54 shall apply to such an application with all necessary adaptations (0.54A r.3(2)).
It is important to bear in mind the nature and purpose of an objection to competency before assessing the consequences of the respondent's default in complying with the time limits provided by 0.54 r.4.
The first point to note is that the function of the notice of objection to competency is somewhat different from the conditional appearance provided for in 0.9 r.6 of the Rules. The failure to lodge an objection to competency will not result in any assumption of jurisdiction or waiver of an irregularity whereas the failure to file a conditional appearance and prosecute a motion to set aside the originating process may result in such a consequence (0.9 r.6(2)). Accordingly any motion to set aside the originating process, or service thereof, must be instituted
promptly. (See Cairns "Australian Civil Procedure" (2nd Ed.
Such a challenge to jurisdiction will have no bearing on the substance of the claim pleaded against the respondent in the
By contrast, an objection to competency will raise issues that are pertinent to the substance of the action although the lodgment of such an objection may result in the notice of
objection being heard as a preliminary issue. (See 0.54 r.5(c)).
It may well be that in the absence of such a notice of objection to competency decisions may have to be made by the Court
A notice of objection to competency performs the role of a pleading in a process of judicial review of administrative
A notice of objection is a manner of providing for a limited pleading by a respondent and perhaps has some equivalence to a demurrer. (See 0.20 1.3.) It allows an issue of law to be raised although it may not determine the fate of the whole application and is an alternative to an application to stay or dismiss a proceeding pursuant to 0.20 ©.2(1)(a) (as applied by 0.54 ©£.6) which may be inappropriate in many cases of application
In the present case the matters raised in the proposed notice of objection to competency amount to notice by the respondents that they will be contesting the supporting pillars of the applicant's argument being matters upon which the applicant
will bear the burden of satisfying the Court in any event.
The applicant opposed the granting of leave to file such notices out of time and contended that it may suffer some prejudice if the hearing of the application is not completed in the time allotted because of argument on the matters raised in the
Such a consideration is material to a determination whether the time should be extended to permit such a notice to be filed and indeed in many cases it may be the principal criterion. (See Trades Practices Commission v. Allied Mills Industries Pty. Ltd. (1980) 33 A.L.R. 127 per Sheppard J. at pp.133 and 136.)
In my view it is likely that the matters recited in the proposed notice of objection to competency would have been argued in the course of the hearing in any case and would have' required determinations by this Court. Counsel for the respondents' state that in assessing the time required for the hearing of this matter, due consideration was given for the time required for
There is no suggestion that the notice will require a separate hearing of a preliminary issue and it is intended that the objection be dealt with in the course of the hearing of the whole matter. (See Emanuele v. Cahill (1987) 71 A.L.R. 302.)
I, therefore, consider that an extension of time to file
such a notice will not result in any marked prejudice to the
The applicant has also argued that the respondents have failed to provide any cogent reason for their delay in filing the notice within time or in making an earlier application other than the failure of the respondents' advisers to address the need for
In many cases the absence of such explanation may be fatal but having regard to the function of the notice of objection, the overall speed with which these proceedings have been progressed and the absence of any real prejudice to the applicant I can see no reason why the time for filing the motion should not be extended subject, of course, to the respondents
bearing the applicant's costs of their respective motions.
Solicitor for the First and Second Government Solicitor
Date of Hearing: 27 June 1988 Date of Judgment: 28 June 1988
Extension of time granted to first, second and fourth respondents to file notices of objection to competency, subject to each respondent bearing the applicant's costs of their respective motions