2. Section 273 of the Customs Act provides that the Comptroller may determine by instrument in writing that an item of a Customs Tariff that is expressed to apply to goods as prescribed by by-law shall apply, or shall be deemed to have applied, to the particular goods specified in the determination. The relevant item is Item 19 of Part I of Schedule 4 to the Customs Tariff Act 1982. The item is in these terms:

"Goods, as prescribed by by-law, being goods a suitable

equivalent of which that is the produce or manufacture of

Australia is not reasonably available".

The Customs Tariff Act 1982 has since been amended to remove Item 19 but it was part of schedule 4 at all relevant times and the effect of the determination sought would be that duty on the gearcases would be payable at the rate of 2% instead of 25%.

3. Curragh was the operator of a large coalmine at Blackwater in Queensland and as part of the equipment for working the mine it acquired from Dresser Industries Inc. ("Dresser") in the United States of America two "Marion" brand draglines.

4. An agreement dated 30 January 1981 was entered into with the Queensland Electricity Generating Board ("the Board") to supply coal from the mine at Blackwater. Under that agreement the first delivery of coal was to be made on 1 October 1983 but, subject to the giving of twelve months' notice by either side, that date could be extended to 1 January 1984. (The case was argued before his Honour, as it was before this Court, on the footing that Curragh was a contracting party to the coal supply agreement. In fact, the coal supply agreement was made between the Board and a Co-Venture of which Curragh became the manager. It has not been suggested that anything turns on this and for convenience I shall refer to the facts relating to the contract for the supply of coal on the same footing as his Honour did.) The contract between Curragh and Dresser for the supply of the draglines was also dated 30 January 1981. Operations at the mine had of necessity to commence at an earlier date than the date for the first coal delivery. That earlier date was referred to as the "dig date" and although obviously important for the purposes of Curragh's planning it was not a stipulated date in the contract with and the Board.

5. There was a licence agreement between Marion Power Shovel Co. Inc. ("Marion"), a company apparently controlled by Dresser at the relevant times, and an Australian company, Vickers Ruwolt Pty. Ltd. ("Vickers"). The effect of the agreement, which was before the decision-maker, was that Vickers could not lawfully manufacture any components for Marion draglines without the permission of, in effect, Dresser.

6. Curragh imported the draglines and operations at the Blackwater mine commenced. The first delivery of coal was made a month before the first delivery date specified in the coal supply contract.

7. On 25 February 1983 Curragh applied for a determination under s.273 of the Customs Act in relation to the gearcases for the draglines. On 15 July 1988 a delegate of the Comptroller-General refused to make the determination sought. Neither party sought to make anything of the delay that occurred between the application in 1983 and the decision in 1988.

8. Curragh's submissions to the person who made the decision in 1988 included a submission that because of its manufacturing commitments at the time the Australian manufacturer capable of producing the gearcases had reached full manufacturing capacity and could not have supplied them, so that suitable equivalent gearcases of Australian manufacture were not reasonably available at the relevant time, which was said to be the time of entry.

9. The decision in 1988 to refuse the determination sought was challenged by Curragh in proceedings (No. QG 338 of 1988) brought in this Court under the ADJR Act. The proceedings were heard in April, 1989 before Pincus J., who upheld the challenge on grounds which are not presently relevant. His Honour directed that the decision to refuse the determination sought be set aside and that there be a further consideration of the application.

10. In the course of the hearing before Pincus J. evidence was given by Mr Ian Bannerman, the corporate solicitor for the group of which Curragh is a member. A question and answer during Mr Bannerman's cross-examination became an important element in the decision under challenge in these proceedings. It is necessary, as the primary judge did, to set out most of the cross-examination to understand the context of the question and the answer. The relevant passages are as follows:

"Q. Now, the contract which Curragh had for coal in

respect of this particular venture is dated 30 January

1981; is that right?

A. Sorry, what was that again?

Q. That is the contract with the Queensland Electricity

Generating Board?

A. I believe that is right.

Q. That is what these draglines were required for use in

respect of that contract; is that the position?

A. Well, yes, but it is a little bit more complicated

than that. The contract was one which gave an

assurance that the project would have a market for the coal.

Q. Right?

A. But it was not the sole market. There was an

intention to produce a coal mine which would sell coal

to the Queensland Electricity Generating Board as well

as for export.

(A copy of the contract was produced.)

Q. Would you turn to clause 4.1 of that contract, please;

that provides for a commencement date of that contract

of 1 October 1983. Do you see that?

A. Yes, I do.

Q. Can you tell me whether that commencement date was

agreed on the basis of the estimated - or taking into

account the estimated delivery dates of the draglines

by Dresser as set out in their letter of offer of 11

December 1980?

A. I believe that it was, yes.

Q. So is the position that in the way in which

negotiations proceed, you first find out when you can

get your draglines, and base your dig dates under the

contract on the availability of those draglines?

(Counsel for the applicant objected on the grounds of

relevance.)

Counsel for the respondent:

It is relevant, you Honour, for the exercise of

discretion by Mr Wilson. The evidence before Mr

Wilson, as appears from his affidavit, was that these

gearcases could have been manufactured by Vickers in

Australia, for this particular model - 8200 walking

draglines. Mr Wilson's evidence will be that Curragh

makes, in fact, a commercial decision as to whether

they get Vickers to make them or gets Dresser to make them.

Their contract appears to be based upon the

availability of them so that when one comes to

consider whether they are reasonably available, you

cannot look at your contract - the submissions will

be: you cannot look at your contract and say they

have got to have a dig date by 1 October 1983,

therefore, they are not reasonably available unless

they will be there and in place before 1 October 1983:

because that is not the process. The process is: you

find out your availability first and your dig date

then corresponds with your availability rather than

vice versa. That is really the relevance of this question.

(His Honour allowed the question.)

Q. I think, as I recollect it, we are simply asking you

to confirm whether you ascertain the availability of

the equipment and then negotiate your commencement

date of your coal supply contract to correspond with

that availability of equipment?

A. Yes, I believe that is the order in which the events occur."

On 9 May 1989, after the decision of Pincus J. ordering further consideration of its application, Curragh's solicitors wrote to the Customs Service. Their letter referred to previous submissions and in particular to a letter dated 29 July 1987 which was said to be confirmed and relied upon. In addition, it was put that by reason of the agreement between Marion and Vickers, no Australian manufacturer other than Vickers could lawfully have made the gearcases and that Vickers could not have lawfully done so because it was not authorised. Thus, it was contended, "suitable equivalents" within the meaning of Item 19 were not reasonably available to Curragh at the relevant time.

11. The letter of 9 May 1989 from Curragh's solicitors included this sentence:

"If you require any further information or wish to discuss the

matter further please do not hesitate to telephone the writer."

Apart from some letters requesting an early decision, there was no communication between Curragh's solicitors and the Customs Service until 23 January 1990 when, by letter of that date, the decision under challenge in the present proceedings was notified. The application for an order of review in these proceedings was filed on 20 February 1990.

12. It is not necessary to reproduce all of the letter of 23 January 1990. The decision-maker came to the conclusion that Vickers were able to provide "a suitable equivalent" of the gearcases and that aspect of the decision was not challenged before the primary judge. The decision-maker then considered whether Vickers' gearcases were "reasonably available". The relevant parts of the letter are in these terms:

"The first issue to be determined is whether Vickers could

have supplied the goods within a reasonable time frame. It

has been said on several occasions that the goods had to be

supplied to meet the contracted dig date. This, however, is

contradicted by the statement by Mr Ian Bannerman, the

Corporate Solicitor for Arco Coal Australia Inc, at the

hearing before the Federal Court. In response to

questioning Mr Bannerman responded to the question:

Question

'I think, as I recollect it, we are simply

asking you to confirm whether you

ascertain the availability of the

equipment and then negotiate your

commencement date of your coal supply

contract to correspond with that

availability of equipment.'

Answer

'Yes, I believe that is the order in

which the events occur'.

Although Mr McDonald (formerly of Vickers) has stated that

production planning began with the dig date and everything

worked back from that, Mr Bannerman's statement, which was

not challenged in Court, indicates that Curragh was not

locked into a specified dig date. It thus was open to have

had a later delivery date which may have enabled the

inclusion of Australian made gearcases. I note also that it

was said at a meeting on 10 November 1983 that the Curragh

machines were 5-1/2 weeks late.

The question of Vickers' capacity to produce the relevant

goods has featured strongly in your application. It has

been pointed out that the offer to supply for the Riverside

project (a BHP mine) was made on 2 December 1980. The offer

date for the Curragh project was 11 December 1980. The

dates for the letters of intent and their confirmation,

however, are in a different order with the Curragh project

being in front of the Riverside one. I note that the offer

made in relation to the Curragh contract only remained valid

if the offer was confirmed by a specified date and if

Curragh in fact got the contract to supply coal. I

therefore come to the conclusion that Curragh was not locked

into obtaining its draglines until after it knew that it had

obtained its coal supply contract. At that stage the

Riverside contract had not progressed to the stage where the

order had been confirmed.

Evidence has been presented by former employees of Vickers

about the pre-production planning for, amongst others, the

Riverside project. Reference has been made to computer

scheduling and visits to the United States on this project.

No comment at all in the relevant statements has been made

about what, if any, such work was undertaken within the

Vickers organization in relation to gearcases for Curragh

(or for the R.W. Miller contract). Vickers had shown

interest in this contract, but as discussed in more detail

below, Dresser have stated that they had decided to offer

gearcases from overseas for the Curragh project. There is

also contained in the Discovery papers in a document marked

202, a comment that Dresser wished to maximise the use of

their own facilities for the Curragh project. I would have

liked to have been able to examine the Vickers production

planning records but Mr McDonald has stated that to his

knowledge they no longer exist.

It is clear that Vickers did tender for the R.W. Miller

contract. It would seem reasonable to assume that to be

able to tender there would have had to have been work done

in relation to production planning. Yet Mr McDonald does

not refer to either the Miller or the Curragh projects in

his statement.

Taking all these factors into account, I am not satisfied

that if Vickers had been able to participate in the Curragh

contract, an aspect which will be discussed below, that it

would not have been able to supply the relevant goods in a

reasonable time frame. It has been shown that the time from

the actual placement of the order to the actual delivery of

the goods was approximately 2-1/2 years. By the evidence of

Mr Bannerman it has been shown that the dig date is not a

finite date but depends on the supply of the necessary equipment.

It is not contended that Vickers would have been able to

supply to meet the designated dig date but rather that in a

time frame which covers several years that Vickers may have

been able to supply within a reasonable time frame. In

terms of supply within a reasonable time frame I am not

satisfied that Vickers' desired production of the gearcases

was 'not reasonably available'."

13. The emphases are mine. As to the last passage emphasised, it should be noted that it is clear from the context, and it was accepted in argument before us, that the decision-maker found as a fact that Vickers could not have supplied the gearcases to meet what was described as "the designated dig date". The decision-maker then dealt with the question of Dresser's contractual control over the manufacture of gearcases by Vickers and noted evidence that Vickers wanted to supply the gearcases but that Dresser "desired to maximise the use of its own manufacturing capabilities and so decided to produce the gearcases in the United States of America". The letter continued:

"In the event, there is a clear statement that Vickers was

not requested to make the gearboxes. There is also no

evidence that Vickers were authorised to use the relevant

drawings and specifications. There is thus the situation

where Vickers were not permitted to manufacture the goods

for Curragh. The submission from your Solicitors is that

because such is the case it follows that the goods cannot be

said to be reasonably available and thus the desired

determination must be granted.

In the light of the fact that Vickers were not permitted to

manufacture the gearcases because of the restrictions in

their Manufacturing Agreement I conclude that they could not

be regarded as being able to satisfy the 'reasonably

available' criterion. I would, therefore, prima facie grant

the determination that you have sought. However, despite

being satisfied that suitably equivalent goods the produce

or manufacture of Australian are not reasonably available it

does not follow that a determination must be granted.

The power vested in the Comptroller-General in relation to

section 273 of the Customs Act provides him with a

discretion as to whether a determination will be granted.

The purpose of the Customs Tariff Acts is to provide

assistance to Australian industry. The rate of duty

applicable to the goods in question would have been

established following a public enquiry by the Industries

Assistance Commission and the passage of the necessary

legislation through Parliament. That tariff assistance was

only intended to be reduced when Australian made goods which

are suitably equivalent are not reasonably available. I am

not satisfied that if approval or authorisation had been

given to Vickers, that they could not have produced suitably

equivalent goods that would have met the criterion of being

reasonably available.

It would be unusual if the availability of concessional

admission could depend solely on a decision taken outside

Australia to withhold permission to make goods which could

otherwise be made in Australia. This is particularly so

when it appears that the decision of the American

manufacturer was influenced by factors relating to the

maximization of the utilization of its own facilities.

I have therefore decided that it is not appropriate to grant

an application for a concession when the reason that the

concession would be granted is that Australian made goods

are not reasonably available only because of the overseas

manufacturer withholding permission to make the goods.

Accordingly I have decided not to grant the determination

that you have sought."

Curragh's principal contention before the primary judge was that there was no evidence to support the finding that it was open to Curragh "to have had a later delivery date which may have enabled the inclusion of Australian made gearcases". This finding was said to be critical to the decision and it was contended that there was no evidence to support it. Section 5(1)(h) of the ADJR Act was relied upon.

14. Curragh also argued that there was other material about the availability of a later coal delivery date that the decision-maker should have sought, but did not seek, from it; s.5(1)(e) together with s.5(2)(g) and s.5(1)(h) of the ADJR Act were relied upon. Curragh next contended that the discretion to refuse the determination, despite the finding by the decision-maker of no reasonable availability, was improperly exercised because there had been a failure to consider relevant matters. It argued that although it had succeeded before the decision-maker on the "reasonable availability" issue, it had done so for the wrong reason and that the wrong reason was one that directly led to a wrongful exercise of the decision-maker's discretion.

15. His Honour rejected the "no evidence" ground relied upon by Curragh. He held that, in substance, the decision-maker found that there was at least a possibility that Curragh could have arranged its contract with the Board so that deliveries would commence at a time sufficiently late to allow the use of gearcases from Vickers. His Honour concluded that such a finding was open to the decision-maker on the facts available to him as at the date of the decision. In particular, the admissions by Mr Bannerman in cross-examination before Pincus J. amounted, in his Honour's view, to evidence which at the very least stood in the way of a finding in Curragh's favour that a later coal delivery date was not available.

16. I return later to discuss his Honour's conclusion about what the decision-maker found. Over the objection of counsel for the respondents, his Honour admitted evidence that at the time of the negotiation of the coal supply agreement, Curragh had no flexibility in negotiating with the Board about the delivery date for coal. His Honour found that this evidence showed, amongst other things, that Curragh stipulated an earlier delivery date than that fixed by the Board's specifications and that this element was regarded by the Board as an important factor in awarding the contract to Curragh. The Board had its own commitments to supply electricity which made the early delivery of coal of critical importance.

17. One way in which this evidence was relied upon by Curragh was as support for its case under s.5(1)(h) of the ADJR Act. The evidence was put forward as showing that a fact did not exist: see s.5(3)(b). His Honour did not act on the evidence as supporting the ground under s.5(1)(h) because he considered that there was evidence before the decision-maker, whether complete or not, that did rationally support the decision he made and that this was particularly so bearing in mind the onus that rested upon Curragh.

18. I now turn to the issues on the appeal. Central to Curragh's primary argument was the contention that his Honour should have found that:

. the decision-maker accepted that the gearcases, if

made in Australia, would not have been available in

sufficient time for the commencement of the supply of

coal by the date agreed with the Board;

. the decision-maker found as a fact that the Curragh could

have negotiated a later date for the supply of coal than

that prescribed by its contract with the Board.

Consistently with the second finding, it was said, the decision-maker could not have been satisfied that the gearcases were "not reasonably available" from a manufacturer in this country. It was contended that the finding involved an error of law, there being no evidence of the fact found, thereby providing a ground of review under s.5(1)(f). The ground of review under s.5(1)(h) was relied upon, as it had been before his Honour, but as an alternative to the ground under s.5(1)(f). Otherwise the arguments were essential the same as those before his Honour.

19. The starting point must be an examination of the findings of fact made by the decision-maker. I have already set out the relevant parts of the letter in which the decision-maker's findings and reasons appear. From those extracts it is apparent that the decision-maker accepted that Vickers, which was the only relevant Australian manufacturer, could not have supplied the gearcases in time to allow Curragh to meet the coal delivery date provided for by the contract with the Board and he must be taken to have found this as a fact. The reference in his reasons is to "the designated dig date" but since that "dig date" (which was not designated under the contract) was obviously critically linked to the supply date, the finding about the dig date amounts, inevitably, to a finding about the supply date. And it is clear, anyway, from the context of the letter as a whole that this is what the decision-maker had in mind. The first part of Curragh's argument about the factual findings is made out.

20. In my view the second part of the argument is also made out. It is clear from the decision-maker's reasons that he considered that Mr Bannerman's statement in the earlier proceedings before Pincus J indicated that "Curragh was not locked into a specified dig date". From this he concluded:

"It was thus open to have had a later delivery date which

may have enabled the inclusion of Australian made gearcases."

21. I take this to be a finding of fact that Curragh could, not might, have obtained a later delivery date for the supply of coal. Moreover, it was a finding that a significantly later delivery date could have been obtained because it was on the basis of this finding that the decision-maker concluded that "in a time frame which covers several years...Vickers may have been able to supply within a reasonable time frame" and thus that he was not satisfied that "Vickers' desired production of the gearcases was 'not reasonably available'". To the extent that his Honour drew different conclusions about the facts found by the decision-maker I am unable to agree with him.

22. These being, in my view, the decision-maker's findings of fact, has the appellant made out the ground upon which it placed primary reliance before his Honour, namely the ground provided by s.5(1)(h) of the ADJR Act that there was no evidence or other material to justify the making of the decision ? I put to one side for the moment the ground provided by s.5(1)(f), error of law. The "error of law" ground was argued on the footing of "no evidence" and it was put forward as primary ground by the appellant on this appeal.

23. Section 5(1)(h) provides for a ground of review in the following terms:

"That there was no evidence or other material to justify the

making of the decision;"

24. Section 5(1)(h) must be read in conjunction with ss.5(3)(a) and (b), which provide:

"(3) The ground specified in paragraph 1(h) shall not

be taken to be made out unless:

(a) the person who made the decision was

required by law to reach that decision

only if a particular matter was

established, and there was no evidence or

other material (including facts of which

he was entitled to take notice) from which

he could reasonably be satisfied that the

matter was established; or

(b) the person who made the decision based the

decision on the existence of a particular

fact, and that fact did not exist."

The "no evidence" ground in s.5(1)(h), as elucidated in s.5(3) expands that ground of review in the applications for which ss.5(3)(a) and (b) make provision: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at 357-358 per Mason C.J.

25. In a "no evidence" case in which s.5(1)(h) is relied upon, the ground may be made out if, but only if, the case falls within either s.5(3)(a) or (b). It is not suggested that this case falls within s.5(3)(a) but it is put that the finding that Curragh could have had a later delivery date was a finding of a particular fact, upon the existence of which the decision-maker based his decision, and that such a fact did not exist.

26. The fact in question was clearly a "particular fact" and, in my view, the decision was "based" upon it. If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond's Case Mason C.J. said, at 357, that s.5(3)(b) was directed to "proof of the non-existence of a fact critical to the making of the decision" (my emphasis). See also, Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word "critical" to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance, that may not affect the validity of a decision.

27. Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

28. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J. in Akers v Minister for Immigration and Ethic Affairs [1988] FCA 459; (1988) 20 FCR 363 at 374, that there is no reason to read s.5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review.

29. The finding of fact that Curragh could have had a later date for the supply of coal was a finding of a particular fact upon which the decision was based. It was a finding that was critical to the decision in several ways. It founded the conclusion that there was a possibility that Vickers may have been able to supply the gearcases within a reasonable time-frame and it led to, "in terms of supply within a reasonable time-frame", the decision-maker's lack of satisfaction that "Vickers' desired production was not reasonably available". Having reached this point, the decision-maker then had to consider the submission that since Vickers were not permitted to manufacture the gearcases it followed that the goods could not be said to be reasonably available and that the determination sought should therefore be granted. He concluded that in light of the fact that Vickers were not permitted to manufacture the gearcases because of restrictions in their manufacturing agreement, they could not be regarded as being able to satisfy the "reasonably available" criterion and that he would, therefore, prima facie grant the determination that had been sought. But because he reached this conclusion by the second route rather than by the first, he refused the determination sought on discretionary grounds. The process of reasoning having properly and clearly been revealed by the decision-maker, it can be seen that the finding of a particular fact was critical to the decision because it fundamentally affected the course of reasoning leading to that decision. The finding shut off a path that could have led to a decision in Curragh's favour.

30. It is not, of course, enough to satisfy the requirements of s.5(3)(b) alone as to do so would ignore the language of the ground provided for by s.5(1)(h) itself. In such a case, to make out a ground under s.5(1)(h) there must be an absence of evidence or other material of a particular fact upon which the decision was based. It is not necessary in this case to explore the question whether, consistently with an intention that may be revealed by s.5(3)(a), it will be enough to show, in a case in which s.5(3)(b) is relied upon, an absence of evidence or other material from which the decision-maker could reasonably be satisfied that the particular fact existed or whether, in relation to that fact, there must be a complete absence of any evidence or other material; in my view there was a complete absence of any evidence or other material from which the existence of the critical fact about Curragh's capacity to have a later date for supply of coal could be established.

31. The material before the decision-maker showed that there was a contract with the Board under which the supplier had bound itself to commence the delivery of coal by 1 October 1983 with the possibility of an extension of the delivery date, by only 3 months, upon the giving of 12 months' prior notice by either side.

32. It was not suggested before the Court on appeal, or apparently before the primary judge, that there was any material to support the conclusion that a postponement of the delivery date by 3 months would have enabled gearcases of Australian manufacture to have been available. The decision-maker obviously had in mind either the negotiation of a later delivery date within the framework of the existing contract with the Board or the negotiation of a different contract that would have had a significantly later delivery date. It seems likely, having regard to the passage from Mr Bannerman's evidence upon which the decision-maker fundamentally relied and to the context in which the passage occurs, that when the decision-maker concluded that Mr Bannerman's statement indicated that "Curragh was not locked into a specified dig date" he had in mind Curragh or associated entities being successful in obtaining a different contract with the Board, under which a significantly later coal delivery date could have been specified.

33. It is obvious enough that any person proposing to enter into a contract for the supply of coal, in circumstances where the acquisition of massive and specialised equipment would be necessary to enable the contract to be filled, will negotiate a delivery date by reference to the availability of the essential equipment. On the reasonable assumption that companies such as those involved here would not enter into a contract unless they had the expectation that they could fulfil it, Mr Bannerman's evidence does no more than state the obvious. The evidence is only capable of supporting the conclusion that is was open to Curragh to have had a later delivery date if there are other facts from which it could be concluded that if Curragh or its associates had sought to negotiate, and insist upon, a significantly later delivery date the Board would have awarded a contract that contained a later delivery date. It was not suggested that there was any other material before the decision-maker upon which he could have come to the conclusion that negotiation would, or even might, have led to a contract with a later delivery date. There are some situations in which the bargaining power of one party is such that it may, within reasonable parameters, stipulate its own terms as to a delivery date and there are others in which a supplier will have to meet the delivery date required by the other party or stand no chance of being awarded the contract. In the absence of material bearing upon the question, it is mere speculation to conclude that a particular contract falls within one category or the other.

34. Moreover, Mr Bannerman's evidence about the availability of the equipment being, in substance, the basis for the negotiation of the commencement date of the coal supply contract, is incapable of offering any support for the conclusion that once a contract had been entered into a delivery date later than that which had been agreed could have been negotiated. The apparent magnitude of the undertaking and the express provision for an extension of 3 months on the giving of 12 months' notice, merely serves to emphasise the entirely speculative nature of any conclusion that the delivery date under the contract actually entered into might have been extended by negotiation.

35. In short, there was no evidence or other material to support the finding that it was open to Curragh to have had a later delivery date which may have enabled the inclusion of Australian made gearcases in its equipment.

36. It remains to consider the concluding words of s.5(3)(b): "and that fact did not exist". Since the ground in s.5(1)(h) is a "no evidence" ground, and since s.5(3)(b) requires, in that context, that it be established that the person who made the decision based the decision on the existence of a particular fact as a requirement for making out the ground, the concluding words "and that fact did not exist" must be taken to impose an additional requirement. In Television Capricornia Pty. Ltd. v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 519-521 Wilcox J. examined the history and meaning of s.5(3)(b). His Honour observed that whilst it might have been thought appropriate to provide for an administrative decision to be struck down where the decision was based upon the assumption of a particular fact of which the decision-maker had no evidence, a deliberate decision was made in drafting the ADJR Act to restrict more tightly the operation of the ground. By reference to the background to the provision his Honour considered that it was understandable that, when Parliament turned to non-jurisdictional findings of fact in s.5(3)(b), it required the applicant for review to show more than that there was no evidence before the decision-maker of the fact found, or assumed, as the basis of the decision. The applicant was required to negative the fact and, as his Honour noted, this may constitute a heavy burden, especially where the facts are obscure. But the language of s.5(3)(b) shows that its concluding words do impose an additional requirement and the history of the section, discussed by Wilcox J. in Television Capricornia, tends to confirm that this is so.

37. How then is an applicant for an order of review to establish that a particular fact, on the existence of which a decision was based, did not exist? In Television Capricornia, Wilcox J., at 521, thought that the extract from the report of the Ellicot Committee, set out at 519, suggested that it was the intention of the Committee that, in determining whether or not a relevant fact existed, the Court would not be confined to evidence formally before the decision-maker at the time of decision. His Honour suggested that it might be that the non-existence of the fact would be susceptible of proof in Court by admissible evidence in the ordinary way, with the result that where such proof was lacking the application for review would fail. It was not, however, necessary for Wilcox J. to reach a concluded view upon those questions because the only evidence that had been tendered in the proceedings before him was material that had been before the decision-maker.

38. Section 5(3)(b) must contemplate that an applicant will be able to establish that a particular fact did not exist, and that the applicant will be able to do so in circumstances where there was an absence of evidence or other material before the decision-maker to justify the making of the decision. It could hardly have been intended that an order of review would be available only where the non-existence of the particular fact could be established from the material before the decision-maker because, in order otherwise to make out the ground, that material itself must be deficient. Such a conclusion would impose, for no discernible reason, an even greater limitation than the concluding words of s.5(3)(b) require. If such were the intention, it would be expected that there would be express language confining the scope of the material available for proof of the non-existent fact and so enlarging the practical scope of the limitation.

39. On the undeniable assumption that the ground provided for in s.5(1)(h) as elucidated by s.5(3)(b) was intended to be a ground that has practical content, I conclude that the requirement of establishing that a particular fact did not exist is to be satisfied by admissible evidence in Court, where of course any ground must be made out, and that the evidence on the issue is not limited to material that was before the decision-maker.

40. This conclusion does not offend the principle that, on judicial review, it is not for the Court to assume the function of a decision-maker in making findings of fact. Section 5(3)(b) may be seen as imposing an additional requirement, of which the Court itself must be satisfied, before an order of review is granted upon the ground in s.5(1)(h) in circumstances where such a ground is otherwise made out. The additional requirement will therefore preclude the making of an order of review in a case where, although there was no evidence or other material of a particular fact upon which the decision was based, it is clear enough that the particular fact did exist. It will preclude review of a decision where the lack of evidence of a particular fact may be characterised as a mere technical deficiency. But the requirement goes very much further than this because the onus of proving the non-existence of a fact rests upon the applicant. This may erect an insurmountable obstacle to an applicant in some cases but that obvious consequence must be taken to reflect a deliberate policy choice by the Parliament.

41. I now turn to consider whether his Honour should have found, on the evidence before him, that the particular fact relied upon by the decision-maker did not exist. As I have noted, his Honour referred to the evidence tendered before him and said that it showed, amongst other things, that Curragh stipulated an earlier delivery date than that fixed by the Board's specifications, that this element was regarded by the Board as an important factor in awarding the contract to Curragh and that the Board had its own commitments to supply electricity which made early delivery of coal of critical importance. The evidence, which was inherently credible and which was unchallenged, went further than this. Mr Neil Gallway, the Electricity Commissioner and Chief Executive Officer of the Queensland Electricity Commission, swore an affidavit in which he said that as part of his duties as Deputy Commissioner and Commissioner in 1979, 1980 and 1981 he was involved in making decisions in the planning process to ensure that electricity supplies would be adequate to match future consumption requirements. He referred to the specification to which the Co-Venture tendered and said that if a tender had been received offering a commencement date for the supply of coal later than 1 January, 1984 it would have been treated as a non-conforming tender and that the tenderer would no longer have been considered in the tender process. It is clear from his affidavit that the Co-Venture was not the only tenderer.

42. There was also evidence from Mr Thomas Kuzman, a director of Curragh, who in early 1981 was appointed Mine Manager responsible for the design, commissioning and operation of the mine at which the draglines were to be used and from which the coal was to be supplied. His evidence strongly supports the conclusion that it was simply not open to Curragh to have had a later delivery date, however achieved, which may have enabled the inclusion of Australian-made gearcases.

43. In my view, the unchallenged evidence of both witnesses was such that the only finding reasonably open was that a materially later delivery date could not have been achieved and that the facts as to a later delivery date upon which the decision-maker based his decision did not exist. Accordingly, the challenge to the decision on the ground in s.5(1)(h) of the ADJR Act ought to have been successful before the primary judge.

44. In these circumstances, I think it unnecessary to consider the ground under s.5(1)(f) of the ADJR Act or whether, because of the failure of the decision-maker to seek other material on the availability of a later coal delivery date from Curragh, the ground provided for by s.5(1)(e) was made out.

45. I propose that the appeal be allowed and the orders made by his Honour set aside. There should be an order that the decision be set aside and that the application be reconsidered by the respondent according to law. The appellant should have the costs of this appeal and of the application generally.

46. Because I am of the view that the application should be reconsidered by the decision-maker I should deal briefly with the attack that was made on the exercise of his discretion to refuse to make a determination notwithstanding that the statutory criteria had been met.

47. As I noted earlier, the discretion was exercised adversely to the applicant on the footing that the statutory criteria had been met by reason only of the fact that the Australian manufacturer could not lawfully make the gearcases as a consequence of the restrictions in its agreement with Marion. If that were the only reason why gearcases of Australian manufacture were not reasonably available I would agree, for the reasons given by his Honour, that it could not be said that the discretion was wrongly exercised. It was argued that the repeal of Tariff Item 19 by the Customs Tariff Amendment Act (No.2) 1985 made irrelevant any consideration of the possible future conduct of overseas manufacturers when considering an application for a determination under s.273 of the Customs Act after the date of the repeal. It was said that since a new statutory regime was in force at the time of the decision, considerations that might have been relevant under the earlier provisions could no longer have any relevance.

48. Section 273A of the Customs Act allows a determination to be made for the purposes of an item that has been repealed if the goods were entered for home consumption before the repeal of the item. In determining what may be relevant to the exercise of a discretion where the areas of relevance are not exhaustively defined or where, as here, they are not defined at all by the legislation, it is necessary to look to the subject matter, scope and purpose of the legislation. The power that was exercised here derived from the operation of s.273 upon Item 19, as permitted after the repeal of that item by s.273A. In those circumstances, it seems to me impossible to ignore the subject matter, scope and purpose of the legislation as it existed at the time of entry for home consumption, and in particular Item 19, because it was only in the context of the earlier legislation that the power that was being exercised was conferred.

49. I should also add that it appears to have been common ground that if in fact the delivery date could have been delayed sufficiently to allow for the manufacture of gearcases in Australia the conditions of Item 19 may not have been satisfied. I do not think that this is necessarily so. It may well be that the question posed by Item 19 should be answered at the date of entry for home consumption because it is then that the goods are classified and duty assessed. It is unnecessary to express any concluded view on the point however and, in any event, circumstances existing in a wider time frame may be relevant to the exercise of the discretion conferred by s.273.

I agree with the reasons for judgment of the Chief Justice and with the orders he proposes.

I agree that the appeal should be allowed for the reasons given by the Chief Justice. Orders should be made as indicated by the Chief Justice.