COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)

CWDS
  Administrative Law - judicial review - tendering of new evidence - whether
there was evidence before the decision maker to support the decision - whether
decision maker should have sought additional information - exercise of
discretion to refuse determination.
  Customs - importation of gearcases - s.273 Customs Act 1901 and Item 19,
Part 1, Schedule 4 Customs Tariff Act 1982 - whether goods "reasonably
available" - whether Australian manufacturer may have been able to supply
goods within a "reasonable time frame".
  Administrative Decisions (Judicial Review) Act 1977 ss.5(1)(e) and (h), and
5(2)(b) and (g)
  Customs Act 1901 s.273
  Customs Tariff Act 1982, Schedule 4, Part 1, Item 19
  Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs
(unreported) Pincus J., 19 September 1990
  Luu v Renevier (1989) 91 ALR 39
  Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Warren
v Coombes (1979) 142 CLR 531

HRNG
MELBOURNE
#DATE 11:6:1991
  Counsel for the Applicant:           Mr P. McMurdo
  Solicitors for the Applicant:        Morris Fletcher and Cross
  Counsel for the Defendant:           Mr P. Duteney QC
  Solicitors for the Defendant:        Australian Government Solicitor

JUDGE1
  The applicant Curragh Queensland Mining Limited ("Curragh") is the operator
of a large coal mine at Blackwater in Queensland.  As part of the capital
plant for working the mine it acquired from a company called Dresser
Industries Inc. ("Dresser") in the United States two "Marion" brand draglines.
A dragline is a large mobile excavator.
2.  Curragh had to pay duty on the draglines, but in relation to the gearcases
of the machines it sought a determination under s.273 of the Customs Act 1901
that the gearcases were, in terms of Item 19 of Part 1 of Schedule 4 to the
Customs Tariff Act (1982):
    "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."
3.  The effect of such a determination would be that duty would be payable at
two per cent instead of 25 per cent.
4.  An Australian company Vickers Ruwolt Pty Ltd ("Vickers") did manufacture
what are now conceded to be suitable equivalents of the gearcases.
5.  By a decision on 23 January 1990 the first respondent ("the
decision-maker") who is a delegate of the Comptroller-General of Customs,
refused to make the determination sought.  That decision is challenged under
the Administrative Decisions (Judicial Review) Act 1977.
6.  Curragh entered into an agreement with the Queensland Electricity
Generating Board ("the Board") to deliver coal from the mine at Blackwater.
The coal supply agreement was dated 30 January 1981.  Under clause 4.1 of 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 contract between Curragh and Dresser for
the supply of the draglines was also entered into on 30 January 1981.  Since
coal deliveries were due by 1 October 1983, operations at the mine had of
necessity to commence at an earlier date.  That earlier date is referred to as
the "dig date". Although it was obviously important for the purposes of
Curragh's own planning, it was not a contractually stipulated date as between
Curragh and the Board.  As will be seen, the expression "dig date" has
sometimes been used when what is really meant is the supply commencement date.
7.  There was in existence a licence agreement between Dresser and Vickers,
the effect of which was that Vickers would not manufacture components for
Marion draglines without the request or express approval of Dresser.
8.  Curragh imported the draglines and commenced operations at the Blackwater
mine.
9.  On 25 February 1983 the applicant applied for a determination under s.273.
There was a very substantial delay, the reasons for which were not canvassed
before me and as to which neither side sought to attach any legal
significance.  On 15 July 1988 another delegate of the Comptroller-General
refused to make the determination sought.  That decision was attacked in
proceeding Q G338 of 1988 and on 7 April 1989 Pincus J. upheld the challenge
on grounds which are not relevant for present purposes.  His Honour directed
that the decision to refuse a determination 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 Ross Bannerman who was the corporate solicitor for the group of which
Curragh is a member.  He was cross-examined and a question and answer from
that cross-examination formed an important of the basis of the decision under
challenge in the present proceedings.  In order to understand the context of
that question and answer it will be necessary to set out most of the
cross-examination:
    "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, your 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.
11.  Following the decision of Pincus J. on 7 April 1989 Curragh's solicitors
on 9 May 1989 wrote a letter to the Customs Service making further detailed
submissions in support of the application.  There had already been written
submissions made and in particular a letter of 29 July 1987.  Curragh's
solicitors concluded their letter of 9 May 1989 in these terms:
     "If you require any further information or wish to discuss the
     matter further please do not hesitate to telephone the writer."
12.  Apart from some letters requesting an early decision, there was no
communication between Curragh's solicitors and Customs Service until 23
January 1990 when by letter of that date the decision now under challenge was
made.
13.  The letter extends over some six and a half pages.  Much of it is now not
in contention.  I shall not reproduce all of it in this judgment.
14.  After discussing certain matters relevant to the issue, the
decision-maker came to the conclusion that Vickers were able to provide a
"suitable equivalent" of the gearcases.  As I have noted, this part of the
decision is not now challenged.  He then turned to consider whether Vickers'
gearcases were "reasonably available".  The letter states:
    "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 contact only remained valid if the
    offer was confirmed by a specified date and if Curragh in fact got
    the contact 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"."
15.  The decision-maker then deals with the question of Dresser's contractual
control over the manufacture of gearcases by Vickers and notes evidence that
Vickers were desirous of supplying 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 continues:
   "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 Challenge
16.  Curragh argues that the decision of 23 January 1990 should be reviewed
under the ADJR Act because:
(a) 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
    critical to the decision, but there was no evidence to support such
    a finding.  S.5(1)(h) of the ADJR Act was relied on.
(b) Alternatively, there was other material on the availability of a
    later coal delivery date which the decision-maker should have sought
    from Curragh.  S.5(1)(e) together with s.5(2)(g) and s.5(1)(h) applied.
(c) The discretion to refuse the determination, despite the finding of
    no reasonable availability, was improperly exercised.  There was a
    wrongful failure to consider relevant matters:  s.5(1)(e) and s.5(2((6).
17.  It will be seen that Curragh complains that, although it succeeded on the
"reasonable availability" issue, it did so for the wrong reason, and, what is
more, a reason which directly lead to a wrongful exercise of the
decision-maker's discretion.
Reasonable Availability
18.  A critical step in the decision-maker's reasoning was his finding that
"Vickers may have been able to supply within a reasonable time frame" and that
in terms of supply within a reasonable time frame he was not satisfied that
Vickers desired production of the gearcases was "not reasonably available".
19.  The decision-maker, correctly in my view, approached the matter on the
footing that it was up to Curragh to show that Vickers gearcases were not
reasonably available.  His reference to "a reasonable time frame" is in my
opinion consistent with the purposes of the statute.  The goods in question
here, heavy specialised mining equipment, are not things which one would
expect to be driven off a showroom floor.
20.  As I understand Curragh's argument, it accepts that the Vickers gearcases
did not have to be capable of immediate delivery in order to be "reasonably
available" and that, in theory, one way in which some delay in delivery could
be accommodated was by Curragh arranging with the Board a later coal delivery
date.  Also, Curragh does not raise any issue that delay by Vickers would in
fact have been too long to suit any realistically available re-arranged coal
delivery date.  Rather, Curragh says there was no evidence to justify a
finding that there could have been any negotiation of a contract with a later
delivery date (or any extension of a contractually stipulated date) at all.
21.  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.  In my opinion that 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. amount 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.
22.  I must bear in mind that I am concerned here with the question whether
there was any evidence to justify his decision.  It is a function quite
different from that of an appellate court deciding what are the correct
inferences to be drawn from primary facts:  cf. Warren v Coombes (1979) 142
CLR 531.  Seen in their context, the question and answer cited in the decision
were not dealing with Curragh's general negotiating practice but with the
particular contract with the Board.  In my view, they are capable of
supporting the conclusion that Curragh could have arranged a later coal
delivery date with the Board.
New Evidence
23.  At the hearing before me Curragh tendered, over opposition by counsel for
the respondents, evidence designed to show that in the commercial setting in
which Curragh operated at the time of the negotiation of the coal supply
agreement, they in fact had no flexibility in negotiating with the Board the
delivery date for the coal.  That evidence showed that, amongst other things,
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 early delivery of coal of critical
importance.
24.  This evidence was relied on by Curragh in two ways.  First, because
Curragh relied on s.5(1)(h) of the Act and contended that there was no
evidence or other material which justified the decision, the new evidence was
said to bear on the limitation on that ground contained in s.5(3)(b) since it
tended to show that the decision-maker based the decision on the existence of
a particular fact and that fact did not exist.  Secondly, this was said to be,
adopting the language of Wilcox J. in Prasad v Minister for Immigration and
Ethnic Affairs (1985) 6 FCR 155 at p 170, approved by the Full Court in Luu v
Renevier (1989) 91 ALR 39 at p 49,
    ".....a case where it is obvious that material is readily available
    which is centrally relevant to the decision to be made (with the
    result that) to proceed to a decision without making any attempt to
    obtain that information may properly be described as an exercise of
    the decision-making power in a manner so unreasonable that no
    reasonable person would have so exercised it."
25.  In my opinion the first argument fails for the reasons I have mentioned.
26.  There was evidence before the decision-maker, whether incomplete or not,
which did rationally support the decision he made.  This is particularly so
bearing in mind the onus which rested upon Curragh.
27.  As to the second argument, I adopt with respect what was said by Pincus
J. in Detsongjarus v Minister for Immigration, Local Government and Ethnic
Affairs (unreported) 19 September 1990 at p 11:
    "Firstly, the decision-maker is not obliged to make the applicant's
    case.  Secondly, the decision-maker ordinarily may decide the
    application on the basis of such information and material as the
    applicant puts forward.  Thirdly, the decision- maker may sometimes
    be obliged to make further enquiries where a proposed ground of
    objection is information obtained from a source other than the
    applicant, which information has not been dealt with by the
    applicant.  Next, further information may have to be sought where
    the decision-maker knows there is available other factual material
    likely to be of critical importance in relation to central issue for
    determination.  These last two points are, however, merely examples
    of the general proposition."
28.  In the present case, the new evidence was material either within the
knowledge of Curragh or, insofar as it came from officers of the Board,
readily obtainable by Curragh, well before the making of the decision. After
the hearing before Pincus J., Curragh had the opportunity of making further
submissions, and did in fact do so in the letter of 9 May 1990, but without
raising the new evidence.  Curragh was a company engaged in a major mining
operation.  It was seeking a substantial statutory concession.  For that
purpose it had engaged solicitors and counsel and had successfully attacked
one decision under the ADJR Act. It must have appeared to the decision-maker
as well equipped to look after its own interests.
29.  The issue of the possible availability of Vickers gearcases being
affected by the negotiation of a later coal delivery date was clearly raised
in the course of the hearing before Pincus J., not only in the answers that
Curragh's own witness gave in cross-examination, but by the fact that the
issue was raised in cross-examination by counsel for the Customs Service.  In
the circumstances, there was no obligation on the decision-maker to raise the
issue further with Curragh or seek information from them.
The Discretionary Factor
30.  Curragh accepted, correctly in my view, that a discretion remained open
to the decision-maker to refuse a determination notwithstanding that the
statutory criteria had been met, provided of course that the discretion was
exercised for a proper purpose.
31.  In my opinion, the decision-maker did not stray outside the purpose and
function of the Customs Act when he exercised his discretion in the way he
did.  In the circumstances of this case, declining to grant the determination
would operate as an incentive for a company in the position of Dresser to
permit Vickers to manufacture the relevant goods in Australia.  Since
presumably that manufacture would result in some financial benefit to Dresser,
the latter would have to weigh against that benefit the consequence of
importing the goods into Australia at full rates.
Conclusion
32.  The question before me is not whether I agree with the decision or
whether sitting as an appellate court I would overturn it, but rather whether
it was lawfully made.  In my opinion the attack on the decision fails and the
application should be dismissed with costs.