Federal Court of Australia

Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal dated 19 October 2021 be set aside.

3.    The matter be remitted to the Tribunal for re-determination according to law.

4.    The respondent pay the applicant’s costs of and incidental to the appeal, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) which set aside a decision of the applicant (the Comptroller) to refuse an application made by the respondent (Alstom) for a tariff concession order (TCO) pursuant to s 269P of the Customs Act 1901 (Cth) (Customs Act) in relation to driverless trains. The Tribunal’s decision was made following the remittal of the proceeding to it, for redetermination according to law, made by a Full Court of this Court in Alstom Transport Australia Pty Ltd v Comptroller-General of Customs (2020) 275 FCR 652; [2020] FCAFC 43 (Alstom).

Procedural History

2    On 4 August 2017, Alstom filed an application for a TCO. As gazetted, Alstom’s TCO application was for:

TRAINS, driverless, single deck, including ALL of the following:

(a)    six integrated AND interdependent AND electronically interfaced cars including ALL of the following:

(i)    two trailer cars;

(ii)    two motor cars;

(iii)    two motor cars with pantograph,

(b)    maximum carrying capacity of NOT less than 1540 passengers;

(c)    under-frame mounted driverless train control AND management systems interfaced with ALL of the following:

(i)    traction AND braking system;

(ii)    door operation system;

(iii)    remote train control AND monitoring system,

(d)    closed circuit television;

(e)    passenger announcement AND information display units with route maps;

(f)    roof mounted heating AND ventilation AND air conditioning (HVAC) with a cooling capacity of NOT less than 35 kW per unit AND a heating capacity of NOT less than 10 kW per unit;

(g)    maximum speed NOT less than 100 km/h

3    EDI Downer Pty Ltd (Downer), a manufacturer of electric passenger (though not driverless) trains in Australia, objected to the TCO on the basis that Alstom’s TCO application did not meet the core criteria, as set out in s 269C of the Customs Act, because Downer produced “substitutable goods” in Australia in the ordinary course of business.

4    On 2 February 2018, the Comptroller refused the TCO under s 269P of the Customs Act. The decision of the Comptroller was affirmed on internal review. Alstom applied to the Tribunal for review of the affirmed decision. In a decision dated 17 June 2019, the Tribunal affirmed the Comptroller’s decision on the basis that the Downer trains were “substitutable goods” because a use to which the TCO goods and the Downer trains could be put was to transport passengers by rail: Alstom Transport Australia Pty Ltd and Comptroller-General of Customs [2019] AATA 1308 at [41]–[42] (the First Tribunal Decision).

5    Alstom appealed the First Tribunal Decision. For the reasons given in Alstom, the Full Court allowed the appeal and remitted the matter back to the Tribunal for redetermination.

6    Upon redetermination, in a decision dated 19 October 2021, the Tribunal decided that Alstom’s TCO application should be accepted: Alstom Transport Australia Pty Ltd and Comptroller-General of Customs [2021] AATA 3816 at [112] (the Second Tribunal Decision). The Comptroller now appeals the Second Tribunal Decision to this Court.

Statutory framework

7    The Customs Tariff Act 1995 (Cth) (Customs Tariff Act) imposes customs duty on goods imported into Australia. Schedule 3 of the Customs Tariff Act sets out a Principal Tariff that classifies goods. The rate of duty generally depends upon the classification to which the goods belong. Goods are free from duty if a TCO under s 269P of the Customs Act declares that the goods are ones to which item 19 of Schedule 4 of the Customs Tariff Act applies.

8    A tariff is a measure designed to protect local manufacturing industries from overseas competition. The Australian customs regime recognises that tariffs do not serve this purpose if there is no local industry requiring protection. In such a case, a tariff imposes an impost on local consumers without conferring a benefit on local industry. A summary of the history and scope of tariff protection in Australia is found in the Full Court’s decision in Comptroller General of Customs v Vestas – Australia Wind Technology Pty Ltd (2015) 236 FCR 499; [2015] FCAFC 185 at [9]–[40] (Vestas).

9    Part XVA of the Customs Act deals with TCOs. The relevant provisions are set out in Alstom at [3]–[12]. For convenience, some of the material provisions are set out below.

10    Section 269P relevantly provides:

269P    The making of a standard TCO

(1)    If a TCO application in respect of goods … has been accepted as a valid application under s 269H, the Comptroller‑General of Customs 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 …; and

(c)    all information supplied …; and

(d)    any inquiries made by the Comptroller‑General of Customs;

that the application meets the core criteria.

…

(3)    If the Comptroller-General of Customs is satisfied that the application meets the core criteria, he or she 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.

(4)    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 Comptroller-General of Customs, 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.

11    A TCO must not be made in respect of goods, the description of which indicates, either directly or by implication, that the goods are of a particular brand or model. Nor can a TCO be made in respect of goods described in terms of their intended end use. Sections 269SJ(1) and (1A) provide:

269SJ    TCOs not to apply to goods described by reference to their end use or certain goods

(1)    The Comptroller-General of Customs must not make a TCO in respect of goods:

(aa)    described in terms other than generic terms; or

(a)    described in terms of their intended end use; or

(b)    declared by the regulations to be goods to which a TCO should not extend.

(1A)    Without limiting the meaning of the reference in paragraph (1)(aa) to goods described in generic terms, goods are taken not to be so described if their description, either directly or by implication, indicates that they are goods of a particular brand or model, or that a particular part number applies to the goods.

12    As noted above, under s 269P(3), a TCO must be made if the application meets the “core criteria”. Section 269C of the Customs Act addresses “core criteria” as follows:

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.

13    The definition of “substitutable goods” is in s 269B(1) in the following terms:

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.

14    Section 269B(3) provides:

In determining whether goods produced in Australia are put, or are capable of being put, to a use corresponding to a use to which goods the subject of a TCO, or of an application for a TCO, can be put, it is irrelevant whether or not the first-mentioned goods compete with the second-mentioned goods in any market.

15    The current wording of s 269B(3) was enacted in 1996 with the passage of the Customs Amendment Act 1996 (Cth). Previously, the concept of “core criteria” had been defined in s 269C in the following terms:

For the purposes of this Part, a TCO application is to be taken to meet the core criteria if, on the day occurring 28 days before the day on which the application was lodged:

(a)    no substitutable goods were produced in Australia in the ordinary course of business; or

(b)    substitutable goods were produced in Australia in the ordinary course of business but the granting of the TCO was not likely to have a significant adverse effect on the market for the substitutable goods.

16    The 1996 amendments made clear that, in determining whether goods were substitutable goods, no analysis is required as to whether the goods competed in a market: Vestas at [37]. This is important in considering the relevance to the current statutory regime of reasoning in cases decided before the 1996 amendments which involved an examination of the market and issues stemming from that examination: Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) (2011) 123 ALD 21; [2011] FCA 757 at [8] (Robertson J) (Nufarm).

17    On the current legislative scheme, the “core criteria” will be satisfied if there are no “substitutable goods” produced in Australia, being goods 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 TCO application or of the TCO can be put.

18    In Nufarm at [57], Robertson J provided a practical guide to determining whether there are “substitutable goods”:

A practical analysis would be:

(i)    what are the TCO goods?

(ii)    to what use or to what uses are they put or can they be put?

(iii)    what are the goods claimed to be substitutable?

(iv)    to what use or to what uses are they put or are they capable of being put?

(v)    are the uses in (ii) and (iv) or any of them corresponding uses?

19    This practical guide was endorsed by the Full Court in Alstom at [53]. The parties have conducted the proceedings by reference to the practical guide, recognising that it is not a substitute for the terms of the statute.

20    We make the following observations on the statutory scheme in so far as it concerns the issue of substitutable goods.

21    First, the identification of use is a separate and distinct exercise to the identification of the TCO goods and the goods claimed to be substitutable:

(a)    it is first necessary to identify both:

(i)    the TCO goods (Nufarm (i)). In these reasons, a reference to “TCO goods” is a reference to goods that fall within the description of the goods in the TCO application (see [22] below) and goods within the TCO (acknowledging that, in the present case, there was no TCO); and

(ii)    the goods claimed to be substitutable (Nufarm (iii));

(b)    it is then necessary to identify use in respect of both:

(i)    the TCO goods (Nufarm (ii)); and

(ii)    the goods claimed to be substitutable (Nufarm (iv)).

22    Second, in identifying both the TCO goods (Nufarm (i)) and the use of the TCO goods (Nufarm (ii)), it is to be recognised that the TCO goods are any goods that fall within the description of the goods in the TCO application. The TCO goods are not the specific goods sought to be imported. As s 269SJ makes clear, the description of the TCO goods must be in generic terms and not in terms of intended end use.

23    Third, as this Court said in Chief Executive Offıcer of Customs v Toyota Material Handling Australia Pty Ltd (2012) 203 FCR 129; [2012] FCAFC 78 at [4] (Toyota), the comparison required when identifying use is not only between actualities but also between potentialities. The language of s 269B makes it necessary to consider:

(a)    in relation to the use of the TCO goods (Nufarm (ii)), the actual (or actual intended) use and potential use (“can be put”); and

(b)    in relation to the use of the goods claimed to be substitutable (Nufarm (iv)), the actual use (“are put”) and potential use (“capable of being put”).

24    Fourth, in considering potential use of the TCO goods and potential use of the substitutable goods, it is not appropriate to consider any and every conceivable use. The potential uses to be considered are only reasonable ones: Toyota at [4]. A use which is a “sensible commercial use” would almost always be a “reasonable use”, but a use does not necessarily need to be a “sensible commercial use” in order to be a “reasonable” one: Toyota at [19].

25    Fifth, the TCO goods and the goods said to be substitutable will have a corresponding use (Nufarm (v)) if at least one of their actual or potential uses overlap. Section 269B will be satisfied if there is “a use” of the TCO goods that corresponds with “a use” of the goods claimed to be substitutable. Where goods are described in a TCO application by reference to maximum capacities, it may be important not to disregard reasonable potential uses below those maximums in considering whether there are any corresponding uses between the TCO goods and the goods claimed to be substitutable. As the Full Court said in Toyota at [9]:

Pausing there, there is no doubt that the TCO goods were capable of being used to lift loads of up to 1,200 kg up to 5 m (since they could lift that load at least that far). It also follows from the Tribunal’s findings that the WR 3040 and 40 WR 3000 were capable of being used to lift such loads to such heights. It is true, no doubt, that the TCO forklifts could lift more than 1,200 kg more than 5 m (which the Crown forklifts could not) but that cannot erase the fact that both the TCO forklifts and the Crown forklifts could be used to do the same thing, namely, to stack shelves up to 5 m high with loads of up to 1,200 kg. This conclusion would mean that the WR 3040 and 40 WR 3000 were, in relation to the TCO application, “substitutable goods” unless — as in the example of the spoon and excavator — it was not a reasonable use of the TCO forklift to load shelves up to 5 m high with loads of up to 1,200 kg.

26    Sixth, although, as was made clear in Nufarm, there is a distinction between the use of goods and the means by which the goods achieve their actual or intended use, the statute directs attention to the use of goods. The means by which goods operate may be relevant to answering the statutory question if, and to the extent to which, the means affects the use of the goods. The means by which goods operate may not be relevant to use if the means does not affect use. For example, in Nufarm, the means by which the TCO herbicides worked to kill weeds, which was a quite different formulation to that of the substitutable goods, did not affect either the types of weeds or the crops upon which the herbicides both worked. There may not always be a bright dividing line demarcating when, or the extent to which, the means by which goods operate affects use.

The Second Tribunal Decision

27    The ultimate question for redetermination by the Tribunal was whether the TCO application met the “core criteria” as defined in s 269C. In particular, the issue was whether, on the day on which the application was lodged, substitutable goods were produced in Australia in the ordinary course of business.

28    Before the Tribunal, the Comptroller submitted that:

(a)    The trains produced by Downer in Australia were “substitutable goods” because those goods are put or are capable of being put to a use that corresponds with a use to which the TCO goods (as defined in [21] above) can be put. The Comptroller had submitted that the trains produced by Downer in Australia could be used to transport by rail up to 603, 1205 or 1809 passengers at any one time at speeds of up to 130km/h, and the TCO goods could be used to transport at least 1540 passengers at any one time at a maximum speed of at least 100km/h. There was said to be a corresponding overlap because both goods were capable of transporting over 1,000 passengers at once at maximum speeds of over 100km/h.

(b)    Alternatively, a producer in Australia could produce “substitutable goods” with existing facilities as made to order capital equipment, satisfying the criteria in s 269E (which deems substitutable goods “to have been produced in Australia” in certain circumstances).

29    The Tribunal rejected both of these submissions. This appeal is concerned only with the first issue.

30    The Tribunal recognised at [25] of its reasons that the issue of whether there were “substitutable goods” in respect of the TCO goods required it to deal with the five questions based on the practical analysis set out by Robertson J in Nufarm at [57] and endorsed by the Full Court in Alstom at [53].

31    The Tribunal considered at [27] of its reasons that the Full Court had “laid down certain principles to be utilised in answering some [of] those questions and suggested possible answers to some of them” (emphasis added).

32    In answering question (i) of the Nufarm analysis at [28] of its reasons, the Tribunal identified the TCO goods as described in Alstom’s TCO application as gazetted (and as set out at [2] above).

33    In answering question (ii) of the Nufarm analysis, the Tribunal said (in its reasons at [30]) that the Full Court “stressed that the answer to this question must pay close regard to the terms of the TCO itself”, having regard to the features of the statutory regime identified in [51] of the Full Court’s reasons. The Tribunal noted (at [32]) that this approach was said by the Full Court to support “the primacy of the description of the goods in the TCO application once it has been accepted as valid by the Comptroller” (Alstom at [52]). The Tribunal noted (at [32] of its reasons) the Full Court’s quote from the decision of this Court in Toyota at [4].

34    The Tribunal went on to state (at [33]):

I take the Full Court to have emphasised the first passage in that excerpt from Toyota on the basis that it is the goods “described in the TCO” which will determine or be relevant to question (ii).

(Emphasis added.)

35    The Tribunal considered (at [35]) that paragraph [54] of the Full Court’s reasons had “very important implications for the determination of question (ii)”. Paragraph [54] of the Full Court’s reasons states:

Here, the Tribunal did not adopt the foregoing process. It did not make findings about the use to which the particular trains described in the TCO application can be put and it did not make findings about the uses to which the Downer trains are put or are capable of being put. Having failed to make these findings, it therefore failed to undertake a determination of whether there were corresponding uses. Moreover, expressing the use of the applicant’s goods as being for the transportation of passengers by rail did not address the usages of the applicant’s goods, precisely because those goods were never described in the TCO application as passenger trains, without more. The Tribunal, with great respect, accordingly erred. It misunderstood its statutory task and it failed to make the necessary findings of fact.

36    The Tribunal took note (at [37] and [39]) of the Full Court’s statement at [56] that “the Tribunal’s task is not to identify a broad genus of use but the use of the actual goods described in the TCO application” and the Full Court’s observation that on remittal, “it may well be found that the uses to which the applicant’s trains, as described in the TCO application, can be put are those described by the applicant as being ‘to transport passengers on a high capacity, high frequency driverless metropolitan train system’”.

37    The Tribunal sought further written submissions from the parties on the question of the extent to which earlier cases referring to the notion of “ultimate use” in dealing with sections 269C and 269B of the Customs Act were “still good law in light of the reasons of the Full Court”. The Tribunal referred to decisions in Vestas; Nufarm; Re Downer EDI Rail Pty Ltd and Chief Executive Officer of Customs (2010) 118 ALD 454; [2010] AATA 866; Re Bag & Jute (Tamworth) Pty Ltd and Comptroller-General of Customs and Southcorp Australia Pty Ltd (1995) 38 ALD 357; [1995] AATA 254 (Bag & Jute); Re Thirco Pty Ltd and Comptroller of Customs and Bowater Tissue Ltd (1994) 35 ALD 665 (Thirco); and Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 (Vulcan).

38    The Tribunal said at [79]–[80] of its reasons (emphasis added):

[79]    It seems to me that none of the ultimate use cases had made the point that because the TCO description had not been rejected by the respondent under s.269SJ(1) or otherwise, the TCO description should govern the question of ultimate use.

[80]    A difficulty I have with the submissions of the respondent on the “use” point is that, sitting as a Tribunal bound by the Full Court decision between the present parties, it seems to me that I am bound not to make a finding in answer to question (ii) as to the uses to which the goods described in the TCO application are put or are capable of being put which does not treat as part of that use that the trains are driverless trains. The use described in the previous Tribunal decision was found to be erroneous “precisely because” the goods are not described in the TCO application as passenger trains without more, as the Full Court said in paragraph [54].

39    At [82]–[83] of its reasons, the Tribunal continued (emphasis added):

[82]    If paragraph [54] of the Full Court’s reasons is inconsistent with earlier authority, or not, it seems to me that the task which I must perform is not to make a finding inconsistent with what has been said by the Full Court in paragraph [54]. Any use of a train which is not a use of a driverless train will not be an answer properly given to question (ii) consistently with the Full Court’s decision.

[83]    Moreover, the finding which the respondent urges upon me in answer to question (ii) set out in paragraph 81 of its Outline seems to me, with respect, to be erroneous for the reasons identified by the Full Court. The finding sought by the respondent is a finding of a true fact, but it fails to give primacy to the TCO description because that description is not of a passenger train simpliciter, but of a driverless passenger train.

40    The Tribunal (at [84]) did not consider it necessary or desirable to decide the issue of whether “the use/ultimate use cases were … impliedly overruled by the Full Court in this case”. Nonetheless, the Tribunal considered (at [86]) that it was “arguable” that there was tension between the Full Court decision in Toyota and the Full Court decision in this case:

… especially since the Full Court in Toyota disposed of the matter for itself rather than remitting it for re-determination. That is because the Tribunal decision in Toyota put some stress upon the fact that the TCO description required that the (motorised) forklift be operator-driven and the putative substitutable goods were to be operated by pedestrians. Discussing that point in paragraph [42] of the Tribunal’s decision, Downes J, then President of the Tribunal, referred to Vulcan and Thirco with approval and said that the point, while not essential to his decision, tended to support his conclusion. The Full Court noted the fact that the TCO description referred to the forklift as driver-operated, and that the putative substitutable goods were pedestrian-operated, yet held that the relevant goods were substitutable goods.

41    The Tribunal said at paragraph [85] of its reasons:

I therefore reject the submission of the respondent set out in paragraph [81] of its Outline of Submissions, as an answer to question (ii) and for that reason I reject the respondent’s proposed answer to question (iii) based upon s.269E(1).

42    Paragraph [81] of the Comptroller’s outline of submissions was reproduced in the Tribunal reasons at [78] in the following terms (emphasis in original):

The uses to which the local goods can be put

81.     The use to which the Australian goods can be put includes the transport by rail, of up to 603, 1206 or 1809 passengers at any one time (as 3, 6 or 9 car sets respectively), at speeds of up to 130km/h.

43    At paragraphs [87]–[90], the Tribunal concluded (emphasis added):

[87]    I return to deal directly with question (ii) in the light of the evidence.

[88]    Driverless trains, to be used, need the things mentioned in paragraph (c) of the TCO description, that is, a remote train control centre and monitoring system. Otherwise they cannot be driverless. They need a supporting system involving a number of things: They need a remote control centre to communicate with the train and give it digital instructions. Second, according to the evidence in this case they need the under-frame mounted driverless train control and management systems interfaced as mentioned in paragraph (c) of the TCO description, or perhaps other equivalents. The TCO goods have certain minimum speeds and carrying capacity. The precise speeds and carrying capacities may presumably vary as between different driverless trains.

[89]    As to the suggestion made by the Full Court that it may well be found by the Tribunal that, as the applicant submitted in the Full Court, the TCO goods can be used to transport passengers on a high capacity, high frequency, driverless metropolitan train line system, the particular goods imported by Alstom certainly satisfy that description. Whether all goods complying with the TCO description must satisfy that description needs to take account of the fact that the TCO description says nothing about whether the trains are “high frequency”. On the other hand, high frequency capabilities are one of the main advantages of a driverless train, and permits trains to be brought to stations frequently and safely, with greater frequency than driver-operated train services. It is a selling feature of driverless trains, even though they are more expensive than trains which need a driver, and need expensive associated technology. In practice therefore, driverless trains will have the advantage of being high frequency.

[90]    I am for those reasons content to adopt the suggestion made by the Full Court as a statement of the uses to which the TCO goods are put, and are capable of being put. It should be observed that in some parts of the world, driverless trains and trains with a driver are able to travel along the same tracks, being tracks fitted with or accompanied by technology for the driverless trains and also signals and the like required for trains with drivers. In other words, that part of the Full Court’s suggested language which I adopt is not intended to entail that the “driverless metropolitan train system” excludes such a dual purpose rail system.

[91]    Thus far in these reasons I have dealt with the present case insofar as one considers the actually produced goods proposed by the respondent as an answer to question (iii) of the practical analysis questions.

44    Apart from what is said at paragraph [91], the Tribunal did not otherwise make express findings in relation to question (iii) of the Nufarm analysis. The Tribunal did not address questions (iv) and (v) of the Nufarm analysis. We note below a contention that the reference in [91] to “(iii)” should be a reference to “(iv)”.

Grounds of appeal

45    The Comptroller raised the following four questions of law in his notice of appeal:

1.    Whether the Tribunal properly construed the definition of “substitutable goods” in s 269B(1) of the Customs Act in deciding that there were no “substitutable goods” produced in Australia for the purposes of s 269C of the Customs Act.

2.    Whether the Tribunal was bound to make a finding that the uses to which the TCO goods are put or are capable of being put necessarily includes reference to the driverless operation of the TCO goods.

3.    Whether the Tribunal, in applying its construction of “substitutable goods” in s 269B(1) of the Customs Act, failed to make necessary findings of fact.

4.    Whether the Tribunal failed to undertake a determination of whether there were corresponding uses of the TCO goods and goods produced in Australia for the purposes of the definition of “substitutable goods” in s 269B(1) of the Customs Act.

46    The Comptroller submitted that the matter would need again to be remitted to the Tribunal to be heard and determined according to law, if he succeeded on any of the grounds.

47    By notice of contention, Alstom contended that the decision of the Tribunal should be affirmed on the following grounds:

1.    The function of the Tribunal was to undertake the process to answer the questions at [Second Tribunal] Decision [25].

2.    If the Tribunal had undertaken that process, it would have arrived at the finding that it made at [Second Tribunal] Decision [89] and [90]; the use to which the TCO goods are and can be put is “to transport passengers on a high capacity, high frequency, driverless metropolitan train line system”.

3.    The remainder of the [Second Tribunal] Decision would have been the same such that the [Second Tribunal] Decision should be affirmed.

Submissions of the Parties

The Comptroller’s submissions

48    The Comptroller submitted that the Tribunal on remitter had misunderstood the Full Court’s decision in Alstom. As a result, according to the Comptroller, the Tribunal had failed to carry out its statutory task, being to determine whether the goods produced in Australia are put, or are capable of being put, to a use that corresponds with a use to which the TCO goods can be put, for the purposes of the definition of “substitutable goods” in s 269B(1) of the Customs Act. The error was said to be found in paragraphs [80] and [82]–[83] of the Tribunal’s reasons.

49    The Comptroller submitted that the Tribunal erred in considering that, in answer to question (ii) of the Nufarm analysis, it was bound (by the Full Court decision) not to make a finding as to the uses to which the TCO goods are put or are capable of being put “which does not treat as part of that use that the trains are driverless trains” and erred in considering that “[a]ny use of a train which is not a use of a driverless train will not be an answer properly given to question (ii) consistently with the Full Court’s decision”.

50    The Comptroller submitted that the Tribunal was not so constrained because the Full Court did not find that any use identified for the purposes of s 296B must replicate in terms the description of the goods in the TCO application. The Tribunal’s misconception as to the Full Court’s findings in Alstom led it to accept the Full Court’s “suggestion” in Alstom at [56] rather than determining the matter for itself.

51    The Comptroller submitted that – even if the Tribunal did not adopt the Full Court’s “suggestion” as an appropriate identification of the use of the TCO goods, but independently came to its own view about that matter – it remained necessary for the Tribunal to make findings about other actual and potential uses of the TCO goods and the Australian-produced passenger trains in order to undertake the statutory task.

52    Furthermore, the Comptroller contended, the Tribunal (at [85]) wrongly treated the answers to the third to fifth Nufarm questions as redundant based on the answer to the second question.

Alstom’s submissions

53    Alstom accepted that the Full Court itself made no findings regarding the use of the TCO goods and left that open to the Tribunal, but denied that the Tribunal had merely adopted the Full Court’s “suggestion”. Alstom submitted that the Tribunal (at [80]) should be understood as saying no more than that, in determining use, the Tribunal needed to have regard to the fact that the TCO trains were driverless. Alstom submitted that even if the Tribunal was wrong to consider itself “bound” not to make a finding that does not treat as part that use that the trains are driverless, it was nonetheless open to the Tribunal to make such a finding. Alstom submitted that the Tribunal did not treat the description of the goods in the TCO application as prescriptive of the description of the use of the goods, merely relevant to that identification and that the Tribunal was not in error in referring to the “driverless” aspect of the TCO goods.

54    Alstom accepted that the answer to question (ii) did not provide an answer to questions (iii) to (v) of the Nufarm analysis, but submitted that the Tribunal had answered question (iii) in summarising the Comptroller’s submissions (at [23] of its reasons). Whilst accepting that the Tribunal did not expressly answer questions (iv) and (v), the Tribunal made findings (at [15] and [22] of its reasons) which meant that if the Tribunal had addressed those questions, it would have arrived at the same ultimate finding that the use of the local goods did not correspond with the use of the TCO goods. Alstom further submitted that the reference to question (iii) in paragraph [81] of the Tribunal’s reasons ought to be read as a reference to question (iv).

The Comptroller’s submissions in reply

55    In reply, the Comptroller submitted that the Tribunal rejected the Comptroller’s identification of use on the basis that the description of use did not include a reference to the driverless feature of the train, because the Tribunal erroneously considered the Full Court’s decision in Alstom required it to do so.

56    If the Tribunal considered that it was bound to follow the Full Court’s “suggestion”, it necessarily followed that the Tribunal did not undertake its statutory task and did not make the necessary findings of fact. The Tribunal never made a finding that the use of the goods claimed to be substitutable did not correspond with a use of the TCO goods. This Court could not determine what the ultimate finding on the question of corresponding use might be in the absence of findings of fact as the findings of fact concern disputed matters.

57    The Comptroller submitted that it could not be said that the Tribunal had made the necessary findings of fact, a task which required an assessment of the material before it in accordance with law. It was submitted that the Tribunal had failed to make the necessary findings of fact because it had abdicated its fact-finding role for what it wrongly conceived to be a direction from the Full Court and had adopted a misconceived approach to the Nufarm analysis.

58    The Comptroller submitted that, irrespective of whether or not the reference to question (iii) in paragraph [81] of the Tribunal’s reasons ought to be read as a reference to question (iv), any answer to question (ii) of the Nufarm analysis could not supply an answer to either question (iii) or (iv).

Disposition

59    The Tribunal erred in two principal ways:

(1)    The Tribunal conflated the identification or description of the TCO goods with identification of the uses for the purposes of s 296B to which goods of that description could be put. In terms of the practical guide in Nufarm, the Tribunal erroneously considered that the effect of the Full Court’s decision in Alstom was that the description of the TCO goods (Nufarm (i)) was determinative of the uses to which the TCO could be put (Nufarm (ii)).

(2)    The Tribunal failed to complete the exercise of its jurisdiction in failing sufficiently to make findings in relation to, or address, the issues which it was required to address in order to carry out its function. In terms of the practical guide in Nufarm, the Tribunal failed properly to address issue (ii) in Nufarm (by reason of the first error) and failed to make findings in relation to, or address, issues (iv) or (v) in Nufarm.

60    As to the first error, paragraphs [79]–[80], [82]–[83], [86] and [89]–[90] of the Tribunal’s reasons show that the Tribunal regarded the TCO description as determinative of the answer to question (ii) of the Nufarm analysis. The description of the TCO goods did not, of itself, supply the answer to the issue which the Tribunal was required by the statute to address, reflected in the question posed in Nufarm (ii). In applying the definition of “substitutable goods” in s 269B(1) of the Customs Act, the identification of the TCO goods is a separate and distinct task from the identification of the actual and potential uses of those goods.

61    The Full Court in Alstom observed that, in addressing question (ii) of the Nufarm analysis, primacy should be given to the description of the TCO goods in the sense that “the Act is concerned with the particular way goods as described in the TCO application are to be used”: Alstom at [53]. The phrase “are to be used” must be read as “can be used”; the statute is not concerned solely with the actual intended use of the TCO goods. In the present case, this required the Tribunal to determine the actual and potential uses of the TCO goods recognising that the TCO goods were not any passenger train but trains as described, or with the features set out, in the TCO application. The task for the Tribunal was not to identify uses of passenger trains generally but to identify the (actual intended and potential) uses of the TCO goods: Alstom at [56].

62    Because the identification of the TCO goods is a separate issue from the identification of the use of those goods, the description of the TCO goods informs but does not determine the identification of the use of those goods. It is for the Tribunal to determine whether, and the extent to which, particular aspects or features of the TCO goods are relevant to the identification of use. The answer will depend upon the particular goods involved. As Robertson J said in Nufarm at [48], there is no precedential value in findings of fact. A described feature relevant to use in one case may be of little or no significance in another. For example, it was not significant to the comparison of actual and potential uses of the forklifts in Toyota that the forklifts described in the TCO application were rider-operated but the substitutable forklifts were pedestrian-operated. That does not mean that it is not relevant to the actual or potential uses of trains falling within the description contained in the TCO application in the present case that the TCO goods are described as driverless.

63    The manner in which the goods operate, as identified in the description of the TCO goods, may, but will not necessarily, affect the conclusion as to the actual or potential uses of the goods. In the present case, it is for the Tribunal to determine, on the basis of the material before it, whether and how the driverless nature of the TCO trains affects the actual or potential use of trains of that description. This will involve an evaluative judgment.

64    The Tribunal found, at [5], that modern trains are categorised by the transport industry as mainline or intercity trains, suburban trains and metro trains, as well as light rail trains (which are similar to trams). It is for the Tribunal to determine, on the material before it, whether the type of network systems on which the trains are capable of operating is relevant in determining the actual and potential uses of TCO goods (and the goods claimed to be substitutable).

65    The fact that the actual goods in respect of which the TCO application was made were intended for a particular use on a particular system does not require the Tribunal to limit the potential uses to those in fact intended. As noted at [22] above, the TCO goods are any goods that fall within the description of the goods in the TCO application. As noted at [61] above, the statutory regime is concerned with the way goods as described in the TCO application can be used.

66    It follows that the Tribunal did not properly address the statutory issue reflected in Nufarm (ii). The Tribunal also failed to make sufficient findings about or address the uses to which the (claimed) substitutable goods could be put (Nufarm (iv)) or address the question whether the uses of the TCO goods and substitutable goods relevantly corresponded (Nufarm (v)).

67    The Full Court in Alstom made it clear that, in addressing paragraph (iv) of the Nufarm analysis, the Tribunal was required to make findings about the uses to which the particular Downer trains that are claimed to be substitutable are put or are capable of being put. In undertaking that task, the Tribunal needs to determine use by reference to the Downer trains as properly identified (Nufarm (iii)).

68    As a practical matter, in order to discharge the statutory function, the Tribunal must identify the TCO goods (Nufarm (i)) and the substitutable goods (Nufarm (iii)), and then determine:

(a)    the uses to which the TCO goods can be put (Nufarm (ii));

(b)    the uses to which the goods claimed to be substitutable are capable of being put (Nufarm (iv)); and

(c)    whether any of those uses correspond (Nufarm (v)).

69    If the Tribunal considers that the type of network systems on which the trains can operate is relevant in determining the actual and potential use of the TCO goods and the Downer trains, it is then for the Tribunal to determine whether the respective trains are capable of operating on the same network and whether they therefore have an overlapping use.

Conclusion

70    The Tribunal failed to make the necessary findings of fact in order to carry out the statutory task. As the facts are contested, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for re-determination in accordance with law. Contrary to Alstom’s submission on its notice of contention, it is not possible to say that, if the Tribunal had in fact carried out the statutory task, it would have found against the Comptroller.

71    As noted at [40] above, the Tribunal raised a question about whether the decision of the Full Court in Alstom implicitly overruled various earlier cases, including Toyota, Vulcan and Bag & Jute. Each of these cases turned on their own facts and the statutory regime as it stood at the relevant time. The Tribunal’s concern that these cases were “impliedly overruled” may have stemmed from its misinterpretation of aspects of the Full Court’s reasoning, in particular its incorrect understanding that the identification of the TCO goods was determinative of the uses to which the TCO goods could be put.

72    The appeal should be allowed with costs.

Associate:

Dated:    27 June 2022