FEDERAL COURT OF AUSTRALIA
Parks Holdings Pty Ltd v Chief Executive Officer of Customs
[2004] FCA 820
CUSTOMS AND EXCISE – tariff classification – petrochemical product – liability to duty – review of Administrative Appeals Tribunal – demand for payment of duty short levied pursuant to s 165(1) of the Customs Act 1901 (Cth) – payment under protest pursuant to s 167 of the Act – whether goods classified as “diesel fuel” with liability to duty or “Other” with no liability to duty – relevance of intention of importer for use of goods – terms given their ordinary meaning by reference to industry evidence as to usage – whether the Tribunal properly construed the evidence and tariff classifications – dispute as to authority to make demand pursuant to s 165(1) – finding that applicant concealed true nature of the goods from Customs – whether demand required under s 165 where importer misled Customs – whether s 153 of the Act confers a power to make a demand on a Controller.
ADMINISTRATIVE LAW – delegation of power – error in instrument – power delegated under incorrect Act – whether error in instrument is a clerical error – whether authority to make demand validly delegated – regulation gave Secretary of the Department authority to “give a direction in writing to an officer” in order to delegate duties of office – whether regulation required delegation to be made in writing.
ADMINISTRATIVE LAW – evidence – finding of fraud – adverse finding as to credibility – whether the Tribunal misconceived the applicant’s evidence – whether the Tribunal was obliged to refer to and consider contradictory evidence in its reasons – whether the findings were open to the Tribunal on the evidence – whether the applicant raised questions of law or fact on appeal.
Customs Tariff Act 1995 (Cth): sch 3
Customs Act 1901 (Cth): ss 8(1)(a)(iii), 153, 165(1), 167, 273GA(2)
Administrative Appeals Tribunal Act 1975 (Cth): s 44
Public Service Regulations 1935 (Cth): reg 116A(2)
Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, applied
Collector of Customs v Agfa‑Gevaert Limited (1996) 186 CLR 389, followed
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, followed
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2002) 168 ALR 407, applied
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, referred to
Handa v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 95, referred to
Fitzgerald v Masters (1956) 95 CLR 420, referred to
BHP Petroleum (Timor Sea) Pty Ltd v Minister of Resources (1994) 49 FCR 155, referred to
Sandvik Australia Pty Ltd v Commonwealth of Australia (1989) 89 ALR 213, considered
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, considered
B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642, followed
Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342, applied
Perpetual Trustee Company (Canberra) Ltd v Lewis (1994) 119 FLR 38, considered
Formosa v Secretary Department of Social Security (1988) 46 FCR 117, referred to
Wu v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245, referred to
Collector of Customs v Savage River Mines (1998) 79 ALR 258, considered
Chief Executive Officers of Customs v Tasmanian Electro Metallurgical Co Pty Ltd (1997) 76 FCR 476, referred to
W & D Engineering Pty Ltd v Chief Executive Office of Customs [2000] FCA 440, referred to
Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285, applied
Pearce & Geddes, Statutory Interpretation (5th ed), Butterworths, Sydney, 2001
Bennion, Statutory Interpretation (4th ed), Butterworths, London, 2002
Langan, Maxwell on the Interpretation of Statutes (12th ed), Sweet & Maxwell, London 1976
PARKS HOLDINGS PTY LTD (t/as GLADSTONE CHEMICALS) v CHIEF EXECUTIVE OFFICER OF CUSTOMS
V 736 of 2001
GOLDBERG J
25 JUNE 2004
MELBOURNE
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| BETWEEN: | PARKS HOLDINGS PTY LTD (t/as GLADSTONE CHEMICALS) Applicant
|
| AND: | CHIEF EXECUTIVE OFFICER OF CUSTOMS Respondent
|
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The appeal by the applicant filed on 18 July 2001 be dismissed.
2. The applicant pay the respondent’s costs of and incidental to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| BETWEEN: | PARKS HOLDINGS PTY LTD (t/as GLADSTONE CHEMICALS) Applicant
| |
| AND: | CHIEF EXECUTIVE OFFICER OF CUSTOMS Respondent
| |
| JUDGE: |
| |
| DATE: |
| |
| PLACE: |
| |
REASONS FOR JUDGMENT
Introduction
1 Parks Holdings Pty Ltd (“the applicant”) appeals from a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming the decision of the delegate of the Chief Executive Officer of Customs (“the respondent”) to demand payment of duty allegedly short levied on a shipment of goods owned by the applicant imported into Australia.
2 Demands for payment of duty were made by the respondent in relation to three shipments into Australia of a petrochemical product called “gas oil”, owned by the applicant. This proceeding concerns only one of those shipments, the first shipment on the vessel Stolt Lily. It was agreed by the parties that the Court’s determination in relation to the Stolt Lily shipment will apply to the remaining two shipments.
3 The demand was made as a consequence of the respondent determining that the proper classification of the goods was diesel fuel which came within sub‑heading 2710.00.20 in Sch 3 of the Customs Tariff Act 1995 (Cth) (“the Tariff Act”). When entered with Customs the goods had been classified by the applicant under sub‑heading 2710.00.90, “Other” goods on the basis that they did not fall within any of the earlier classifications. The relevance of these classifications is that duty is payable on goods which fall within sub‑heading 2710.00.20 (and 2710.00.30), but goods which fall within sub‑heading 2710.00.90 are duty‑free.
4 The duty claimed to be short paid on the Stolt Lily shipment was paid by the applicant under protest in accordance with s 167 of the Customs Act 1901 (Cth) (“the Customs Act”). Section 273GA(2) of the Customs Act provides that a party who has made a payment in accordance with s 167 can make an application to the Tribunal for the review of the decision of the Collector of Customs to make a demand, and of any decisions which led to the making of that demand.
5 By application filed 26 April 1999 the applicant sought to have the Tribunal review the respondent’s classification of the goods and its consequent decision to make a demand for duty. On 20 June 2001, the Tribunal affirmed the respondent’s decision regarding classification and his consequent decision to demand the duty short levied. The applicant then appealed to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
6 Three general issues fall for determination. First, whether the customs officer who issued the demands on the applicant for short payment of the duty had the authority to issue the demands. Secondly, the proper tariff classification of the goods. Thirdly, whether it was open to the Tribunal to find that Mr Sergio Tribuzio, a director of the applicant, had deceived the respondent and committed a fraud on the respondent.
7 These issues give rise to a consideration of several provisions of the Customs Act which include:
8 Collectors of Customs
“(1) In this Act:
(a) a reference to the Collector, or to a Collector, is a reference to:
…
(iii) any officer doing duty in the matter in relation to which the expression is used;
…
Recovery of duties
153 All duties shall constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector.
…
Short paid duty etc may be recovered
165(1)When any duty has been short levied or erroneously refunded the person who should have paid the amount short levied or to whom the refund has erroneously been made shall pay the amount short levied or repay the amount erroneously refunded on demand being made by the CEO within twelve months from the date of the short levy or refund.
…
Payments under Protest
167(1)If any dispute arises as to the amount or rate of duty payable in respect of any goods, or as to the liability of any goods to duty, under any Customs Tariff, or under any Customs Tariff or Customs Tariff alteration proposed in the Parliament (not being duty imposed under the Customs Tariff (Anti‑Dumping) Act1975), the owner of the goods may pay under protest the sum demanded by the Collector as the duty payable in respect of the goods, and thereupon the sum so paid shall, as against the owner of the goods, be deemed to be the proper duty payable in respect of the goods, unless the contrary is determined in an action brought in pursuance of this section.
(2) The owner may, within the times limited in this section, bring an action against the Collector, in any Commonwealth or State Court of competent jurisdiction, for the recovery of the whole or any part of the sum so paid.
273GA …
(2) Where a dispute referred to in subsection 167(1) has arisen and the owner of the goods has, in accordance with that subsection, paid under protest the sum demanded by the Collector, an application may be made to the Tribunal for review of the decision to make that demand and of any other decision forming part of the process of making, or leading up to the making of, that first‑mentioned decision.
8 Schedule 3 of the Tariff Act provides for the classification of goods and general and special rates of duty as follows:
“2710 PETROLEUM OILS AND OILS OBTAINED FROM BITUMINOUS MINERALS, OTHER THAN CRUDE; PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED, CONTAINING BY WEIGHT 70% OR MORE OF PETROLEUM OILS OR OF OILS OBTAINED FROM BITUMINOUS MINERALS, THESE OILS BEING THE BASIC CONSTITUENTS OF THE PREPARATIONS:
2710.00.1 ---Crudes, topped or enriched:
2710.00.11 ---Goods, as follows: Free
(a) enriched crudes;
(b) topped crudes for use as a petroleum refinery feedstock at a factory specified in a licence granted pursuant to section 34 of the Excise Act 1901
2710.00.19 ---Other $0.06954/L
NZ:$0.06954/L
PNG:$0.06954/L
FI:$0.06954/L
DC:$0.06954/L
2710.00.20 ---Goods, as follows: $0.33513/L
(a) automotive diesel oil; NZ:$0.33513/L
(b) industrial diesel fuel; PNG:$0.33513/L
(c) marine diesel fuel FI:$0.33513/L
DC:$0.33513/L
2710.00.30 ---Goods, as follows: $0.06954/L
(a) fuel oil; NZ:$0.06954/L
(b) heating oil; PNG$0.06954/L
(c) lighting kerosene; FI:$0.06954/L
(d) power kerosene DC:$0.06954/L
2710.00.40 ---Kerosene for use in aircraft $0.02451/L
NZ:$0.02451/L
PNG:$0.02451/L
FI:$0.02451/L
DC:$0.02451/L
2710.00.5 ---Gasoline and other oils having a flash point of less than 230C when tested in an Abel (closed test) apparatus:
2710.00.51 ---For use in aircraft $0.19652/L
NZ:$0.19652/L
PNG:$0.19652/L
FI:$0.19652/L
DC:$0.19652/L
2710.00.52 ---For use in internal combustion engines and $0.35613/L
having a lead content exceeding 13mg/L, NSA NZ:$0.35613/L
PNG:$0.35613/L
FI:$0.35613/L
DC:$0.35613/L
2710.00.53 ---For use in internal combustion engines and $0.33513/L
having a lead content not exceeding 13mg/L, NZ:$0.33513/L
NSA PNG:$0.33513/L
FI:$0.33513/L
DC:$0.33513/L
2710.00.59 ---For other uses Free
2710.00.90 ---Other Free
The Facts
10 In response to the applicant’s enquiries, Jayta sent a facsimile setting out the manufacturer’s specifications for a solvent (“the Jayta specification”). Mr Sergio Tribuzio, a director of the applicant, said that the specification was originally headed “Specification for Gas Oil”. For reasons to which I shall return, Mr Tribuzio whited‑out this heading and inserted a new heading, “Specification – X370”. The specification with this new heading was then sent to another Singapore trader, Hin Leong Trading, with a request for a quotation on products matching the specification. Hin Leong did not reply and Mr Tribuzio decided to place an order with Jayta for 1,000 metric tonnes of Solvent X‑370.
11 On 18 July 1996 Mr Tribuzio received a facsimile from Jayta seeking confirmation of the order. Mr Tribuzio wrote a note on the facsimile addressed to the applicant’s purchasing manager instructing him to order 1,000 metric tonnes of Solvent X‑370 based on the Jayta specification. The note said that the product was subject to testing for colour, flashpoint and pour point. The note also said that the “Bill of Lading and Invoice must be Solvent X‑370”.
12 Jayta sent the applicant a pro forma invoice dated 19 July 1996. Mr Tribuzio whited‑out the reference on that pro forma invoice to the product description “gas oil” leaving only a reference to Solvent X‑370, and then returned it to Jayta for preparation of a final invoice. Consequently the invoice for the Stolt Lily shipment merely described the goods as “Solvent X‑370”.
13 Jayta arranged for three separate shipments of the gas oil from the Philippines to Australia. Jayta also arranged for analysis of the gas oil by SGS (Subic Bay) Inc which then issued Certificates of Quality. The Certificate of Quality for the Stolt Lily shipment confirmed that the product met the Jayta specification.
14 The applicant sought and obtained advice regarding the tariff implications and customs requirements for importation of petrochemical products from its solicitors. The solicitors, in a letter dated 20 August 1996, informed the applicant, on the basis of the instructions provided by the applicant as to the nature of the goods to be imported, that they did not anticipate that the applicant ought to incur any difficulty with Customs if it entered the solvent under sub‑heading 2710.00.90 of sch 3 of the Tariff Act.
15 On arrival in Australia the shipments were entered for home consumption with Customs on 13 August 1996 (the date of entry for the Stolt Lily shipment), 9 October 1996 and 13 November 1996 respectively. The goods were entered under tariff classification sub‑heading 2710.00.90 at the nomination of the applicant, and were described on the entry as “Solvent X370.” Whilst other sub‑headings in tariff classification number 2710 of Sch 3 of the Tariff Act related to specific types of goods, sub‑heading 2710.00.90 simply described the category of goods that it covered as “Other”. Classification under this sub‑heading meant that the shipments were duty free under the Tariff Act.
16 The applicant arranged for the Stolt Lily shipment to be tested by Chemtech Services Pty Ltd for appearance, colour, density, distillation range and flash point. The results of those tests were recorded in an Analysis Certificate dated 27 August 1996.
17 The applicant subsequently sold some of the gas oil as solvent under the brand name Solvent 1H (the name Solvent – X370 was not used in the marketplace), and used the remainder in the production of other solvent products for sale to its customers. Part of the Stolt Lily shipment was blended with the applicant’s existing stock of solvent heating oil before being sold. Most of the applicant’s customers at the time of the Stolt Lily shipment were re‑sellers. Mr Tribuzio and his co‑director of the applicant, Mr Joseph Brothers, said that they did not know how the gas oil purchased from the applicant was in fact used by the applicant’s customers.
18 A query memorandum was issued by Customs on 15 November 1996. Subsequently a sample of the goods entered by the applicant in the third shipment was drawn for testing by the Australian Government Analytical Laboratories (“AGAL”). AGAL’s report concluded that the sample was “considered to be diesel fuel only.”
19 On 27 November 1996 the Customs Tariff Chemist made a decision based upon the AGAL report that the appropriate classification for the applicant’s goods was sub‑heading 2710.00.20. This classification related to automotive diesel oil, industrial diesel fuel and marine diesel fuel. Classification under this sub‑heading attracted a duty rate of $0.34559 per litre.
· A facsimile from Jayta to the applicant dated 18 July 1996 which stated:
“ATTN: MR SERGIO TRIBUZIO
RE: GASOIL
FURTHER TO OUR TEL‑CONVERSATION JUST NOW AND OUR GASOIL OFFER TO YOU YESTERDAY, PLEASE REVERT URGENTLY YOUR CONFIRMATION. PLEASE NOTE GASOIL PRICE FLUCTUATES EVERYDAY, AS SUCH WE MIGHT NOT BE ABLE TO HOLD THE SAME PRICE ON DAILY BASIS.
BEST REGARDS”
· The facsimile was endorsed with a note handwritten by Mr Tribuzio:
“STUART
1. PLACE ORDER FOR 1000MT OF SOLVENT X‑370 BASED ON SPECIFICATION ATTACHED. (FAX SPECIFICATION ALSO). PRODUCT IS SUBJECT TO TESTING BY INDEPENDENT SURVEYOR OF OUR CHOICE PRIOR AND POST SHIP FLANGE FOR FOLLOWING TESTS
1. COLOUR
2. FLASH POINT
3. POUR POINT
2. THE CONDITIONS ARE
a. BILL OF LADING AND INVOICE MUST BE SOLVENT X‑370,
b. $200 USD PMT FOB M/T STOLT LILY V 38 00 SUB ETA SUBIC BAY 28/29 JULY.
c. IRREVOCABLE L/C AT SIGHT.”
· A Purchase Order from the applicant dated 18 July 1996 which relevantly stated:
“1000MT OF SOLVENT X‑370 BASED ON SPECIFICATION ATTACHED
BILL OF LADING AND INVOICE MUST BE SOLVENT X‑370”
· A specification sheet headed “Specification – X370” was attached which read:
“ASH, WT PCT MAX 0.01
CETANE INDEX, CALCULATED MIN 45
COLOR, ASTM MAX 2.0
SPECIFIC GRAVITY AT 60 DEG F MIN 0.82/MAX 0.86
DISTILLATION:
90 PCT RECV, DEG C MAX 370
*FLASH POINT, PMCC, DEG C MIN 61.5
POUR POINT, DEG C MAX 0
SULFUR, PCT WT MAX 0.5
VISC AT 40 DEG C, CST MIN 1.8/MAX 5.50
WATER AND SEDIMENT, PCT VOL MAX 0.05
CARBON RESIDUE, PCT WT MAX 0.05
COPPER STRIP CORR (3H/50 DEG C) MAX NO 1
*NOTE”
· An invoice on Jayta letterhead dated 4 August 1996 which related to the goods stopped on the Stolt Lily which were described as “SOLVENT X‑370 AS PER PROFORMA INVOICE …”
21 The respondent considered that the applicant owed $1,305,110.20 for the three shipments, representing the duty which would have been payable on entry had the goods being entered under sub‑heading 2710.00.20.
22 Mr Trevor Walker, in his capacity as a delegate of the respondent, sent notices of demand to the applicant on 19 May 1997 (signed in fact on Friday 16 May) and 19 August 1997 for payment of the duty short levied in respect of the three shipments. The demands were expressed to be made pursuant to s 165 of the Customs Act.
23 From April 1991 until March 1998 and, in particular on 19 May 1997 and 19 August 1997 when the two demands were served, Mr Walker held the position of Chief Inspector of the CIB. Between 19 May 1997 and 23 May 1997 he was also purportedly acting temporarily as the relieving head of the CIB. Mr Walker signed both demands as “Delegate of the CEO”.
24 On 1 April 1999 the applicant and the respondent executed a Deed of Agreement pursuant to which the applicant paid $435,372.20 to the respondent in respect of the amount of duty allegedly short paid on the Stolt Lily shipment. As noted above, this money was paid “under protest” in accordance with s 167 of the Customs Act. A subsequent Entry for Home Consumption was duly prepared on 21 April 1999 and was endorsed:
“PAID UNDER PROTEST BECAUSE THE GOODS ARE A FORM OF CHEMICAL SOLVENT THAT SHOULD BE CLASSIFIED TO SUB‑HEADING 2710.00.90 AS ORIGINALLY ENTERED.”
25 The applicant then applied to the Tribunal pursuant to s 273GA(2) of the Customs Act to review the respondent’s decision to demand duty as payable under sub‑heading 2710.00.20. The Tribunal affirmed the respondent’s classification of the goods and his decision to make the demands.
The Tribunal’s decision
26 The Tribunal identified the first two principal issues and then set out in considerable detail the evidence relating to each issue. The first issue, referred to as the “delegation of authority matter,” related to whether Mr Walker had authority to demand payment from the applicant. The second issue, referred to as the “tariff classification matter,” related to whether the goods ought properly to have been classified by reference to sub‑heading 2710.00.20 as the respondent contended, or 2710.00.90 as the applicant contended, or some other classification under sub‑heading 2710 (in particular, 2710.00.30).
27 The delegation of authority matter arose in the following circumstances. Mr Walker signed the two letters of demand which claimed the short paid duty, and which were made pursuant to s 165 of the Customs Act. From April 1991 until March 1998 Mr Walker held the position of Chief Inspector in the CIB, being position No 31551. During this period he exercised a number of powers, including the power to make demands for duty under s 165 of the Customs Act. These powers had been the subject of instruments of delegation.
28 An alternative basis for Mr Walker’s authority to sign the 19 May 1997 notice was that Mr Walker was acting as head of the CIB during the period 19 to 23 May 1997 (inclusive). The head of the CIB, Mr Robert Johnson, was going on leave during the week commencing 19 May 1997. Prior to going on leave Mr Johnson asked Mr Walker orally to act in his position whilst he was away on leave. Mr Walker agreed to do so. Mr Johnson then orally sought and obtained the formal approval of the Regional Director of Customs, Ms Virginia Stretton, to Mr Walker so acting as the power to appoint Mr Walker to act in Mr Johnson’s place was vested in Ms Stretton. Mr Walker’s acting appointment was not reduced to, or evidenced in, writing, although such an acting appointment was required to be in writing.
29 The Tribunal first addressed the question of whether the demands needed to have been made pursuant to s 165 of the Customs Act. The Tribunal then addressed the question whether Mr Walker had authority, properly delegated under s 14 of the Customs Administration Act 1985 (Cth), to issue demands pursuant to s 165 of the Customs Act in either his capacity as relieving head of the CIB, or as Chief Inspector of the CIB.
30 The Tribunal considered that the decision of the High Court in Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 applied and that consequently a demand under s 165 of the Customs Act was not necessary. The Tribunal considered Malika Holdings to be applicable to the applicant, because its director Mr Tribuzio, had intentionally misinformed, and committed a fraud upon, the respondent.
31 The Tribunal’s finding of fraud was based on Mr Tribuzio’s whiting‑out of the name of the product on the Jayta specification and the Jayta pro forma invoice and his re‑naming of the product “X370”. Mr Tribuzio’s evidence was not consistent on this issue. He said that he had renamed the product “X370” and had whited‑out the heading on the Jayta specification and the description on the pro forma invoice for internal brand classification purposes. He also said that this had been done to ensure that all the banking documents were in order so there would be no difficulty regarding payment by the bank under a letter of credit which was in place. The Tribunal did not accept his explanation and did not regard Mr Tribuzio as a credible witness. The Tribunal found that although Mr Tribuzio denied having knowledge of, or expertise in, the relevant industry, this was belied by his post‑graduate qualifications and experience in the area. Mr Tribuzio was alleged to have relied on the advice of his solicitors, but such reliance was not borne out by the facts. Finally, Mr Tribuzio’s evidence regarding the whiting‑out of documents was unsatisfactory as the Tribunal considered it was unlikely that the bank requirements would necessitate the action Mr Tribuzio took and the Tribunal considered that such an explanation was not consistent with the evidence of Mr Brothers.
32 The Tribunal concluded that Mr Tribuzio’s motivation in the whiting‑out process was to deceive the respondent as to the true nature of the goods and thereby avoid duty by having the goods classified under sub‑heading 2710.00.90 rather than under sub‑heading 2710.00.20. The Tribunal found that the applicant had misinformed and deliberately committed a fraud upon the respondent and so Malika Holdings applied. The effect of Malika Holdings in these circumstances was, according to the Tribunal, that a demand complying with s 165 of the Customs Act was not necessary.
33 The Tribunal concluded that the de facto officer principle did not operate in favour of the respondent and the respondent has not pursued this issue on the appeal.
34 The Tribunal considered that Mr Walker clearly fell within the definition of Collector under s 8(1)(a)(iii) of the Customs Act (par [7] above). The Tribunal noted that ss 167 and 273GA(2) refer to a “Collector”, and said that, in light of the definition in s 8(1)(a)(iii), Mr Walker was clearly a Collector as contemplated in those sections. Having concluded that Malika Holdings applied so as to dispense with the need for a demand that complied with s 165 of the Customs Act, and having concluded that Mr Walker was a Collector for the purposes of ss 167 and 273GA(2), the Tribunal found that the demands made on 19 May 1997 and 19 August 1997 were valid.
35 The Tribunal reasoned:
“(c) Section 165 of the Customs Act has the effect that where the Respondent is not misinformed or there is no fraud or negligent misdescription, the Respondent cannot make a demand for duty after the expiry of 12 months. That prohibition (and it is to be remembered that the system involves self‑assessment) is removed when Malika Holdings (supra) applies, as, in our view, it does in this instance.
(d) This Tribunal derives its jurisdiction from section 273GA(2) of the Customs Act, which in its terms relates back to section 167 of the Customs Act. This Tribunal must consider the ‘decision to make that demand and of any other decision forming part of the process …’. The first question then is as to whether the demand must comply with section 165 of the Customs Act. Section 167 of the Customs Act does not refer to section 165 of the Customs Act, even though it follows relatively closely after it. It is arguable that where Malika Holdings (supra) does not apply, the demand must nevertheless be one which complies with section 165. In this case, though, Malika Holdings (supra) does apply, and so that a demand under section 165 of the Customs Act is not necessary. This being so, the demand made in May 1997, even if it was not compliant with section 165 of the Customs Act sufficies; so for that matter would the later demand by Mr Walker be sufficient. It is relevant as we have said that Mr Walker was on any basis a Collector as defined. This being so, this Tribunal does have jurisdiction to consider the relevant classification and the demand made in respect thereof.”
36 The Tribunal nevertheless went on to consider the applicant’s submissions regarding Mr Walker’s ability to make a demand under s 165 of the Customs Act having regard to the position he held in his own right.
37 On both occasions on which the demands were served, Mr Walker held the position of Chief Inspector of the CIB, being position No 31551. There was no Instrument of Delegation of Authority that on its face conferred on position No 31551 a power to make a demand under s 165 of the Customs Act. Instead, the Instrument delegating power to position No 31551 referred to s 165 of the Excise Act 1901 (Cth) (“the Excise Act”).
38 The instrument of delegation under which Mr Walker was acting had been signed by the acting Comptroller‑General of Customs, Mr Kelly on 6 December 1989. However, that instrument delegated power to a number of positions including Mr Walker’s position No 31551, as being, inter alia, pursuant to s 165 of the Excise Act. This was said to be a mistake in the preparation of the instrument which should have referred to the delegated power as being pursuant to s 165 of the Customs Act. Mr Kelly said that he did not intend, when signing the instrument of delegation, to delegate the power under s 165 of the Excise Act which related to the power to make by‑laws. Rather he intended to delegate powers under the same section, that is s 165, of the Customs Act. He said the mistake was a clerical error.
39 Mr John Drury, who acted in the position of Comptroller‑General of Customs during part of 1993, and who signed the Instrument of Delegation of Authority on 30 September 1993, said hedid not intend to delegate power under s 165 of the Excise Actto position 31551 at the time he executed the Instrument of Delegation. Rather, it was his intention to delegate his authority to that position in respect of s 165 of the Customs Act. He said that the reference to s 165 of the Excise Act was the result of a clerical error in the preparation of Sch 1 of the Instrument of Delegation. Mr Drury said that s 165 of the Excise Act related to the power to make by‑laws and this power was only intended to be delegated to officers in senior management positions and was never intended to be delegated to less senior personnel such as those in position 31551.
40 The Tribunal concluded that, when one had regard to the Instrument of Delegation as a whole, it became clear that the reference to s 165 of the Excise Act in relation to a number of positions, including position 31551, was an error of a clerical nature. The Tribunal thought that it was open to it to interpret the Instrument of Delegation in the manner in which it was plainly intended rather than what was stated on the face of the Instrument. The Tribunal therefore read the Instrument of Delegation as referring to s 165 of the Customs Act rather than s 165 of the Excise Act.
41 The Tribunal found that Mr Walker had authority to make both the first and second demands in his capacity as Chief Inspector of the CIB, as delegated by instrument and pursuant to s 165 of the Customs Act.
42 The Tribunal thought that it was not strictly necessary for it to consider whether Mr Walker was duly authorised to act as the head of the CIB as it had already found that the demands were validly made in his capacity as Chief Inspector of the CIB, nevertheless it addressed this point.
“The Secretary of a Department may give a direction in writing to an officer to perform temporarily the whole, or a specified part, of the duties of an office in that Department.”
44 Mr Walker purported to act in position 30508, as acting head of the CIB, in the week commencing 19 May 1997. Mr Walker signed the first demand as “Delegate of the CEO” on 16 May 1997, before he was acting in position 30508. The demand was served on 19 May 1997, in accordance with Mr Walker’s instructions, once Mr Walker had commenced to act in position 30508.
45 The Tribunal concluded that a demand is made when it is delivered so that the first demand was made on 19 May 1997. The Tribunal then addressed the second issue whether Mr Walker was properly authorised to act in position 30508.
46 Mr Johnson, who was head of the CIB from 1994 to 1999 and was Mr Walker’s direct supervisor in May 1997, said that prior to appointing Mr Walker to relieve him in position 30508 he had received oral approval of the appointment from the Regional Director of Customs, Ms Virginia Stretton. He said that the usual practice was for oral approval to be sought well before the appointment and for the paperwork to be completed at a later date. He assumed that the appropriate written approval had been given. Mr Walker did not receive written approval of his appointment.
47 Mr Kelly said that, at least while he was with Customs, reg 116A(2) of the Public Service Regulations 1935 required that directions appointing an officer to assume another officer’s position on an acting basis had to be made in writing and took effect on the day the written direction was given.
48 The Tribunal concluded that the reference to a written direction in reg 116A(2) of the Public Service Regulations 1935 was permissive rather than mandatory so that the lack of written authorisation prior to 19 May 1997 did not result in Mr Walker’s appointment to position 30508 being invalid.
49 The Tribunal therefore found that Mr Walker also had the power to make a demand for duty short levied in his role as relieving head of the CIB.
50 It was agreed by the parties that the goods imported by the applicant fell within heading 2710 of Sch 3 of the Tariff Act but there was a disagreement as to which specific sub‑heading properly described the goods. The Tribunal addressed the question whether the goods ought to have been classified as “automotive diesel oil, “industrial diesel fuel” or “marine diesel fuel” so as to come under sub‑heading 2710.00.20, as was submitted by the respondent, or as “Other” so as to come under sub‑heading 2710.00.90, as was submitted by the applicant. The Tribunal also had to consider the applicant’s submission that, if the respondent’s method of interpretation of the categories was correct, the goods ought properly to have been classified as fuel oil, heating oil, lighting kerosene or power kerosene so as to come under sub‑heading 2710.00.30. In determining the appropriate classification, the Tribunal considered whether the use of the goods or the intention of the importer as to the use to which the goods would be put were relevant or determinative factors. The Tribunal concluded that the intention of the importer was, in the light of the authorities, “altogether irrelevant”.
51 Both parties called a number of expert witnesses as to whether the product was an automotive diesel oil, industrial diesel fuel or a marine diesel fuel so as to fall within sub‑heading 2710.00.20, or whether it was more appropriately classified as some other class of goods. Australian Standard AS3570 for automotive diesel fuel, as well as the International Standard, ISO 8217:1987, and the British Standard, BSMA 100:1998 for marine diesel fuel, were used as the comparative standards by the expert witnesses.
52 The Tribunal interpreted the three categories in 2710.00.20 – automotive diesel oil, industrial diesel fuel and marine diesel fuel – as being disjunctive, despite the absence of “or”, so that the product only needed to fall within one category in order to be classed under sub‑heading 2710.00.20. In any event, the Tribunal found that the product fell into all three categories. In particular, the Tribunal found that the product constituted an automotive diesel oil whether or not the Australian Standard was strictly complied with. The Tribunal therefore concluded that the goods fell within sub‑heading 2710.00.20.
53 The Tribunal considered that the only categories relevant to the applicant’s product in sub‑heading 2710.00.30 were heating oil and fuel oil. Based on the expert evidence of Mr Gunn and Mr Shuptrine, the Tribunal concluded that the goods were not of a type that fell within sub‑heading 2710.00.30.
54 The Tribunal rejected the applicant’s contention that sub‑heading 2710.00.90 was a specific classification. The Tribunal interpreted sub‑headings 2710.00.1 to 2710.00.59 inclusive as specific classifications and sub‑heading 2710.00.90 as a residual “bucket” category so that, if the product was found to fall within one of the specific classifications, it would be unnecessary to consider the classification “Other” in sub‑heading 2710.00.90. As the Tribunal found that the goods fell within the specific classification of 2710.00.20, it thought it unnecessary to consider whether the goods could come within 2710.00.90.
55 The Tribunal acknowledged that “suitability for use” may be relevant in classifying goods and referred to a number of cases in which the use to which the goods may be put, as indicated by their physical and chemical properties (and as distinct from the use to which the importer of the goods intended to put the goods) was a relevant consideration. Whilst the Tribunal considered that evidence of use was relevant to a limited extent in relation to suitability, it noted that sub‑heading 2710.00.20 was not a use‑based category and that in this instance scientific analysis of the goods was required. As noted above, it took the view that the scientific analysis of the goods indicated that the goods were in fact automotive diesel oil, industrial diesel fuel and marine diesel fuel.
56 The Tribunal indicated that the classification issue was resolved in part by its conclusions as to the factual circumstances surrounding the whiting‑out process and in part by the weight of the scientific evidence as to the nature of the product. The scientific evidence supported classification under sub‑heading 2710.00.20, and was not undermined by considerations of suitability for use or intention as to use, particularly given that the Tribunal had found that the intention of the applicant was to conceal the true nature of the goods and that the evidence given as to intention by Mr Tribuzio was not credible.
57 The Tribunal therefore concluded that the goods were properly classified under sub‑heading 2710.00.20.
Questions on Appeal
58 The appeal lies under s 44 of the AAT Act and is therefore limited to an appeal on questions of law.
59 The applicant’s further Amended Supplementary Notice of Appeal identified the questions of law raised in this appeal as follows:
· Whether the Tribunal properly construed sub‑heading 2710.00.20;
· Whether the Tribunal properly construed sub‑heading 2710.00.90;
· Whether evidence of intended use of the goods can only be considered in relation to “use based” classifications;
· Whether there was a valid demand before the Tribunal;
· Whether the finding of the Tribunal that the applicant committed fraud on, and deliberately misinformed and deceived, the respondent as to the nature or identity of the goods was vitiated by error or was one which no reasonable Tribunal could have made on the evidence.
60 The applicant relied upon the following matters as errors of law made by the Tribunal.
1. The Tribunal erred in its construction of sub‑heading 2710.00.20 in that:
· It failed to give any meaning to sub‑heading 2710.00.20.
· It failed to consider whether the terms “automotive diesel oil”, “industrial diesel fuel” and “marine diesel fuel” had any trade meaning or usage or any ordinary meaning that was understood by members of the industry.
· It failed to have regard to the evidence that the terms “automotive diesel oil”, “industrial diesel fuel” and “marine diesel fuel” had a trade meaning or usage.
· It erred in finding that the requirements of the Australian Standard AS3570 regarding cloud point and oxidation stability were relatively unimportant;
· It erred in finding that the Cetane Index was of singular importance in relation to automotive diesel fuel because there was no evidence upon which such a finding could be based.
2. The Tribunal erred in holding that evidence of intended use was inadmissible when classifying goods.
3. The Tribunal erred in its construction of sub‑heading 2710.00.90. It was said that the Tribunal fell into error because it failed to consider the meaning and effect of s 7(2) of the Tariff Act and that sub‑headings 2710.00.20 and 2710.00.90 were classifications of equal standing and were not to be regarded as mutually exclusive for the purpose of classification.
4. The Tribunal erred in finding that the demands by Mr Walker did not have to comply with the requirements of s 165 of the Customs Act.
5. The Tribunal erred in finding that Mr Walker was the holder of a valid delegation to demand duty under s 165 of the Customs Act. In particular, it:
· erred in finding that a power to demand duty under s 165 of the Customs Act was delegated to Mr Walker’s position No 31551; and,
· erred in finding that in making the demand on 19 May 1997 Mr Walker was lawfully exercising the power delegated to Mr Johnson’s position as Mr Walker did not purport to commence acting in Mr Johnson’s position until 19 May 1997 which was after he had already made the decision to demand the duty.
6. The Tribunal erred in finding that the evidence of Mr Tribuzio was unacceptable and not worthy of credibility for the following reasons:
· It misconceived the evidence upon which it relied in rejecting Mr Tribuzio’s evidence;
· It failed to reconcile its adverse finding regarding Mr Tribuzio’s credit with the majority of his evidence which was unchallenged;
· Its adverse findings regarding Mr Tribuzio’s credit and his intention to deceive the respondent were inconsistent with its findings that “gasoil” is a middle distillate product;
· It failed to reconcile its adverse finding regarding Mr Tribuzio with the independent evidence which corroborated his evidence and which was inconsistent with the reasons for its findings regarding Mr Tribuzio’s credit.
7. The Tribunal erred in law in finding that the applicant committed fraud on the respondent.
8. The Tribunal failed to give any adequate reasons for its findings.
9. The Tribunal failed to have regard to the applicant’s case.
Consideration of the appeal
“The strongest support for the distinction between meaning (a question of fact) and construction (a question of law) is found in the judgment of Isaacs J in Life Insurance Co of Australia Ltd v Phillipswhere his Honour said:
‘Very different consequences attach according as the ambiguity rests in construction or in interpretation. Lindley LJ in Chatenay v Brazilian Submarine Telegraph Co employs the same word ‘construction’ for both ideas, but keeps the ideas distinct. He says: ‘The expression “construction”, as applied to a document, at all events as used by English lawyers, includes two things: first, the meaning of the words; and, secondly, their legal effect, or the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the words is a question of law.’ The ‘meaning of the words’ is what I call interpretation, whether the words to be interpreted into ordinary English are foreign words or code words or trade words or mere signs or even ordinary English words which on examination of surrounding circumstances turn out to be incomplete. Their effect when translated into complete English is construction. If that distinction be borne in mind very little difficulty remains.’
With respect this distinction seems artificial, if not illusory. The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown, a recent House of Lords decision, Lord Hoffmann said:
‘The fallacy in the Crown’s argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.’
If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.”
62 The submissions of the applicant require the Court to trawl through the evidence in detail and to evaluate the evidence to determine whether it supports the Tribunal’s findings. But a court should approach such a task with caution. The Tribunal is the ultimate determiner of the facts and it should only be in exceptional cases, where there is a clear case that there was no evidence to support a particular finding and conclusion, that the Court should undertake that exercise. If there be evidence supporting the Tribunal’s findings or conclusions, then the Court should resist the temptation to consider the evidence going the opposite way for the purpose of establishing that there was no evidence upon which a finding could have been made.
63 The criticism made of the Tribunal’s reasons by the applicant is that it failed to relate its findings to a substantial body of the evidence and that it misunderstood the evidence. One must approach such submissions with caution because it does not follow that the absence of particular matters means that they were ignored by the Tribunal. At all times the Court must be guided by the beacon that any identified error must be an error of law and that the Court ought to exercise an element of restraint before concluding that because a matter is not referred to in the Tribunal’s reasons, it did not take it into account.
64 This approach was approved by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286‑287. The Full Court said:
“Only in exceptional circumstances should the decision of the Tribunal not be the final decision … As the Full Court said in Repatriation Commission v Thompson (1988) 9 AAR 199 at 204:
‘… the nature of the task of this Court is clear. It is to leave to the tribunal of the fact decisions as to the facts and to interfere only when the identified area is one of law.’
This translates to a practical as well as principled restraint. The court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts … The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” [some citations omitted]
The latter part of this passage was cited with approval in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 where it was stated that:
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision‑maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
“[64] There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal. However, the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs,Addo v Minister for Immigration and Multicultural Affairs and Sivaram v Minister for Immigration and Multicultural Affairs. In Addo, the court said:
‘Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
…
It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.’
[65] In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out ‘the reasons for the decision’ (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:
‘(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case;
[66] In this case, the tribunal made an express finding that it did not accept the prosecutor’s wife’s evidence. That was sufficient to comply with the requirements of s 430(1).”
These observations are applicable to the present Tribunal decision and responsive to much of the applicant’s attack on the manner in which the Tribunal dealt with the evidence before it.
66 A distinction is to be drawn between the Tribunal making what is said to be a wrong finding of fact and the Tribunal making a finding in respect of which there is no evidence to justify or support it. Whether there is any evidence to support a particular fact is a question of law but where a tribunal makes a wrong finding of fact there is no error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑356.
Was there a valid demand?
67 There was a fundamental difference between the parties on the issue of whether there was a valid demand made by the CEO. The applicant contended that the demands made were invalid because there was no valid delegation of authority to Mr Walker. The respondent submitted that in light of the decision in Malika Holdings there was no need for a valid demand to have been made for the payment of the duty and that the issue of the validity of the demand went only to the jurisdiction of the Tribunal to hear the matter.
68 The issue arises as to the jurisdiction of the Tribunal because the application filed with the Tribunal was an application to review the decision to demand the payment of the duty. The respondent submitted that there was no issue as to the jurisdiction of the Tribunal to review the decision to make the demand, as the existence of the demand was implicit in the fact that there had been a payment of duty under protest, the protest being a protest against the demand for payment which had been made.
69 There was some initial confusion in the applicant’s submission on the issue of the jurisdiction of the Tribunal to hear and determine the application in relation to classification. The position ultimately adopted by the applicant was that it did not challenge the jurisdiction of the Tribunal to decide the issue on the merits of the classification. Rather, the applicant’s position was that it filed its application with the Tribunal on the basis that the demand for the payment of duty was wrong regarding the classification of the product. The application was filed before it became apparent, said the applicant, that there had not been a valid delegation and that there was no power to make the demand for the payment of duty. The result was that the demand was invalid so there was no further action to be taken by the Tribunal. Any recovery of the duty by the applicant was for another forum. It was submitted that the Tribunal could only review a decision made validly pursuant to s 165 of the Customs Act.
70 I do not accept that submission as there are other bases upon which a decision to make a demand may be predicated. The submission does not pay sufficient regard to the fact that on a review it is open to the Tribunal, and the Court, to uphold a demand for payment and the consequent payment on any other grounds or statutory bases which were available to the respondent at the time.
71 As Mr Walker was a “Collector” as defined in s 8 of the Customs Act, it was open to him to make a demand in accordance with his power also to issue proceedings under s 153 of the Customs Act. In such circumstances, having decided that there was a statutory basis for the demand other than under s 165 of the Customs Act, the Tribunal then had jurisdiction to consider the relevant classification which had brought about the demand. The jurisdiction of the Tribunal was to review the decision to make the demand and review of that decision necessarily involves a consideration of whether the demand was validly made. If it was not validly made in accordance with s 165 of the Customs Act, there is no reason why it could not be validated on some other basis, such as under s 153.
Was there error in the instrument of delegation?
72 The applicant’s case was that Mr Walker’s demand in his letter of 19 May 1997 was invalid because he did not hold a valid delegation of the CEO’s power under s 165 of the Customs Act. The respondent submitted that Mr Walker was authorised to make a demand independently of any delegated power under s 165.
73 Although s 153 of the Customs Act enables a Collector to recover duties that are payable by an owner of goods at any time in a court of competent jurisdiction, the Collector’s general power to recover duty is limited by s 165 in circumstances such as these where goods have been entered for home consumption. Section 165 provides, inter alia, that where any duty has been short levied it shall be repaid if the CEO makes a demand within twelve months from the date of the short levy. The Tribunal relied upon the decision in Malika Holdings (supra) as authority supporting the argument that a valid demand under s 165 is not always required. In Malika Holdings, Gummow and Callinan JJ, with whom Gleeson CJ agreed, held that s 165 applied when the short levy was caused by the respondent’s error, but that if the error arose as a consequence of misinformation supplied by the importer then the Collector would not be precluded from instituting proceedings under s 153 to recover duty at any time.
74 The applicant submitted that the decision in Malika Holdings should be distinguished on the basisthat the proceeding before the court in that case was an action brought by the Collector under s 153. It is true that the decision in Malika Holdings was given in the context of recovery proceedings pursuant to s 153. However, the passages in the judgment upon which the Tribunal relied were applicable to the circumstances before the Tribunal.
75 It is necessary to look at the High Court’s judgment in Malika Holdings in some detail. Malika Holdings imported cotton garments, which it entered for home consumption as “handcrafted cotton garments” on which no duty was payable. Accordingly the goods were imported as having “nil” duty payable on them. The goods were released to the owner after it gave a written guarantee or undertaking to pay any additional duty applicable. The Customs Department obtained advice that the garments were machine made and then made a formal demand for payment of the amount claimed stating that the amount could be paid under protest pursuant to s 167 of the Act as it then existed (September 1986). Malika Holdings failed to pay the sum claimed whether under protest or otherwise.
76 Subsequently the Collector commenced proceedings in the Supreme Court of Victoria to recover the duty not paid. The action was brought on three alternative bases – as a debt due and payable to the Crown (based on s 153 of the Customs Act), under a guarantee given to the Collector and thirdly by virtue of s 165 of the Act. The Collector challenged the right of Malika Holdings to dispute the amount or rate of duty payable in respect of the goods in the proceeding because of s 167 of the Customs Act. A question was stated for the Supreme Court, in general terms, whether Malika Holdings was entitled to dispute the amount or rate of the duty and the liability of the goods to duty where Malika Holdings had neither paid under protest pursuant to s 167(1) of the Customs Act for the sum demanded, nor brought an action pursuant to s 167(2) of the Customs Act for recovery of any amount so paid.
77 The trial judge answered these questions in favour of Malika Holdings, holding that it was entitled to dispute the duty, the rate of duty and the liability of the goods to duty. The Court of Appeal answered all the questions in the negative, against the interests of Malika Holdings, and that decision was subsequently reversed on appeal to the High Court. The majority of the High Court held that where an action is brought by the Collector to recover duty allegedly short levied in respect of goods, the owner of the goods was able, in that proceeding, to challenge the amount of duty, the rate of duty or the liability of the goods to duty whether or not the duty had been paid under protest and whether or not any action for recovery had been brought pursuant to s 167 of the Customs Act.
78 The majority judgment was delivered by Gummow and Callinan JJ, with whom Gleeson CJ agreed. Their Honours analysed the structure of the Customs Act and the revenue system established by it. The following propositions emerged from the joint judgment:
· the duties recoverable under s 153 of the Customs Act are duties which have been imposed by law;
· section 165 of the Customs Act limits the operation of s 153;
· section 165 has no application where the Customs Department has been misinformed by the importer;
· section 165 is concerned with the redressing of errors made by Customs and gives it twelve months to repair its own mistakes.
79 McHugh J held that s 167 did not govern or determine any procedure in the action where the claimant was the Collector, that is to say any action brought by the Collector to recover duty allegedly short levied. McHugh J considered the expression “short levied” in s 165 of the Customs Act and said at 302:
“40 As in Carter Holt, the parties to this appeal agreed that ‘short levied’ included instances when no duty at all has been charged. That being so, it is unnecessary to express a concluded opinion on the subject. But even if s 165 applies or applied to some cases where ‘the amount charged is nil’, I am far from convinced that s 165 governs a case where no duty has been paid by reason of fraud or negligent description. In such cases, I can see no reason why the Collector cannot rely on s 153 without the time limit restriction imposed by s 165.
41 Whether or not s 165 applies to cases where the amount charged is nil, it seems clear enough that there may be many cases where the Collector may sue for duty long after the goods have been imported. Indeed, he or she may sue for the duty long after they have ceased to exist. And the person the Collector sues need not be the original owner or the person who imported the goods. Any person who is in possession or control of goods on which duty is payable, but unpaid, can be sued under s 153 for that duty.”
80 McHugh J did not consider that the provisions of s 167 of the Customs Act applied to actions by the Collector to recover duty. McHugh J stated the issue before the Court in the following terms:
“It is whether s 167 requires the owner to withdraw the entry and pay the duty under protest before it can defend an action brought under s 153 or s 165. The lack of any indication in s 167 that it contemplates such a step confirms the conclusion that the demand of which s 167(1) speaks is a demand made before the goods were entered for home consumption.”
McHugh J noted that s 167 gave the owner of goods the option to pay first and recover later but that it was not intended to take away rights which the owner had if the section had not been enacted. His Honour concluded that the rights of action of the Collector were in no way dependent upon s 167. It follows from the reasoning of McHugh J that a proceeding by the Collector under s 153 of the Customs Act is separate and distinct from any proceeding brought by the owner pursuant to s 167(2) of the Customs Act. It is implicit in his Honour’s reasons, if not explicit, that a demand may be made for duty and a proceeding may be brought to recover duty alleged to have been short levied by the Collector that is independent of any proceeding brought under s 167 and which has s 153 as its jurisdictional basis. Thus, any particular proceeding may fall under one or both of these two sections. McHugh J concluded at 306:
“Section 167 simply does not advert, either expressly or by necessary implication, to the situation in which the owner in this appeal finds itself. In addition, the terms of s 167 and its history suggest that it was not intended to affect the rights and liabilities of the Collector and the owner in an action brought under s 153 or s 165.”
81 Kirby J wrote a concurring judgment in which he concluded that the better view of the Customs Act was that it contemplated alternative procedures for determining claims that duty had been short levied in respect of imported goods and that only one of those procedures is contained in s 167 of the Customs Act.
82 The respondent submitted that, consistently with the reasoning in Malika Holdings, s 167 of the Customs Act authorised the making of the demand independently of any authorisation under s 165 of the Act with the consequence that s 167(1) of the Customs Act operated independently of a demand under s 165. I do not accept the respondent’s submissions in this respect. It does not follow from Malika Holdings that s 167(1) of the Customs Act can operate independently of a demand under s 165 in the sense that it authorises the making of a demand independently of s 165. Rather the correct position is that a demand made which does not comply with s 165 because, for example, the person making the demand is not authorised to make the demand under s 165, may nevertheless be a valid demand if it is a demand in respect of a claim for short levied duty which can be the subject of suit in the name of the Collector under s 153 of the Customs Act.
83 The applicant challenged the Tribunal’s finding that Mr Walker was a Collector within the definition of that expression in s 8(1)(a)(iii) of the Customs Act (par [7] above). The Tribunal regarded Mr Walker as “unquestionably” a Collector as defined and considered that the demand made pursuant to s 165 of the Customs Act was therefore valid as it was made by a Collector. The applicant pointed out that Mr Walker had made the demand on 19 May 1997 purportedly as a delegate of the CEO under s 165. I accept the proposition that Mr Walker was a Collector but this was not relevant for the purposes of s 165. However, it was highly relevant for the purposes of a demand which was contemplated by s 153 of the Customs Act. It is implicit in the authority given to the Collector in s 153 that the power to recover duty by issuing proceedings in a court carries with it the power to make the demand.
84 A distinction is to be drawn between the demand for duty in respect of goods which are held up at the customs barrier and have not been entered for home consumption and goods which have been entered for home consumption and have passed into the community as they have in the present case. Where goods have been entered for home consumption, the authority to make the demand arises under s 165 of the Customs Act. However, where the goods have passed into the community on the basis of the importer misinforming the Customs Department, Malika Holdings says that a demand under s 165 is not required and that the Collector may make a demand pursuant to its power under s 153. The rationale for this is that the importer who misleads Customs should not benefit from its wrongdoing by having a demand made against it invalidated for want of power. It is clear that the matter presently before the Court is one to which the decision in Malika Holdings applies.
85 The respondent submitted that the Tribunal had correctly found that the reference to s 165 of the Excise Act in the instrument of delegation was a mere clerical error and that the true intention and effect of the instrument was to delegate to Mr Walker the power to make demands under s 165 of the Customs Act. There is no doubt that a clerical error was made in the instruments of delegation of both Mr Kelly and Mr Drury, having regard to their evidence.
86 The difficulty with this submission is that it requires the Tribunal and the Court to rewrite the instruments of delegation in a significant manner, going to the very basis of the power conferred. The respondent relied upon a number of texts which support the proposition that a court can rectify an obvious error in the drafting of legislation where it is quite apparent that a mistake has been made: Pearce & Geddes, Statutory Interpretation (5th ed) par [2.24]; Bennion, Statutory Interpretation (4th ed) section 287; Maxwell on the Interpretation of Statutes (12th ed) at 230‑232; R v Moore [1995] QB 353 at 361‑362. It must be recognised, however, that by adopting this approach one is getting very close to engaging in judicial legislation. However, as Finkelstein J noted in Handa v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 95 at [17]:
“Although it may now be appropriate to construe legislation by ‘filling in the gaps’ in this way, there is always the danger that the Court may be seen to be engaging in judicial legislation. Hence the Court must exercise extreme caution. But, if the omission or defect is plain, there is now no reason in principle why the Court should not supply the necessary words to give effect to the legislative intent, in cases where the omission or defect is due to inadvertence, mistake, accident or clerical error.”
87 Of course, an instrument of delegation is not legislation but, in principle, the manner in which it is construed is guided by the authorities regarding statutes. There is no reason to construe an instrument of delegation more strictly. In this context it should be noted that in Fitzgerald v Masters (1956) 95 CLR 420 the High Court construed the word “inconsistent” as “consistent”. Dixon CJ and Fullagar J said at 426‑427:
“Words may generally be supplied, omitted or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency.”
See also at 437‑438 per McTiernan, Webb and Taylor JJ and BHP Petroleum (Timor Sea) Pty Ltd v Minister of Resources (1994) 49 FCR 155.
88 It is apparent that the error was clerical, so much is obvious by reference to the evidence of Mr Kelly. It does not make sense to place a limit of $1,000 in relation to the delegation power to make by‑laws under s 165 of the Excise Act. A financial limitation in relation to s 165 of the Customs Act is appropriate, however, and flowing from this is the conclusion that it is an obvious error, indicative of the mistake which has been made.
89 However there is no error apparent on the face of the instruments. They bear a plain, clear meaning and it is not open to the Court to re‑write them in such circumstances. The consequence is that the relevant instrument of delegation did not delegate any authority to Mr Walker to make a demand pursuant to s 165 of the Customs Act upon the applicant. To the extent to which the respondent relies upon Mr Walker’s purported delegated power under s 165 of the Customs Act, that reliance cannot be sustained.
The requirement for written delegation
90 In the alternative the respondent relied upon Mr Johnson’s appointment of Mr Walker to act in his position from 19 to 23 May 1997. That appointment was orally confirmed by Ms Stretton who was the relevant officer to give approval for such appointment, however she did not do so in writing. Regulation 116A of the Public Service Regulations 1935 permitted the Secretary of the Department to direct an officer to perform certain duties of an office in that Department. However, sub‑reg (2) of reg 116A required such a direction to be in writing (see par [43] above).
91 The respondent submitted that on the proper construction of the regulation the direction in writing was not necessary to constitute a valid appointment. This was also the view taken by the Tribunal. The respondent contended that the provisions in sub‑regs (2), (3), (4), (5) and (9) of reg 116A were expressed in permissive rather than mandatory terms.
92 Whether a requirement is mandatory, with the result that the legislative or regulatory provision is invalidated upon the requirement not being met, depends upon an analysis of the relevant legislative scheme. In Sandvik Australia Pty Ltd v Commonwealth of Australia (1989) 89 ALR 213, French J held at 228 that s 269L of the Customs Act created a condition precedent to the exercise of power to make the relevant concession order. In that case French J paid particular regard to the fact that the obligation upon the Minister was to protect the public. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the majority of the High Court, McHugh, Gummow, Kirby and Hayne JJ said at 392:
“Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.’
This observation was made in the context of a consideration whether a provision of legislation was held to be mandatory or directory.
93 I consider that the requirement in reg 116A(2) for a direction to be in writing is mandatory in the sense that it is intended that there be clear unequivocal evidence that an officer has been authorised to perform particular duties. The absence of a written direction leaves open to doubt the authority of an officer purporting to act under a direction.
94 This conclusion is reinforced by the reasoning of the Victorian Court of Appeal in B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642. The first respondent (“the RPA”), a recognised professional association laid charges against the two legal practitioners pursuant to s 151 of the Legal Practice Act 1996 (Vic). In fact the charges were laid by Mr Ian Dunn for and on behalf of Victorian Lawyers RPA Limited. Section 313 of the Legal Practice Act empowered an RPA to “delegate in writing” to an officer of the RPA any of its powers or functions under various provisions. One of the issues before the Court was whether there had been such a delegation. There were minutes of a meeting of the Council of the RPA which recorded the approval of a recommendation that the council delegate to Mr Dunn its powers pursuant to s 151 of the Legal Practice Act. These minutes had been confirmed by the chairman. The Legal Profession Tribunal held that the minutes containing the resolution accepting the recommendation constituted a delegation in writing to Mr Dunn and therefore met the requirement of s 313. The Tribunal did not consider that a formal instrument of delegation was necessary to meet the statutory requirement that the delegation be in writing.
95 The Court of Appeal found that the requirement that the delegation be in writing protected the interests of all parties concerned and that the wording of s 313 requiring a written delegation was plain and unambiguous (at 657). The Tribunal did not accept the proposition that the passing of the resolution and the minuting of it amounted to a delegation in writing.
96 A situation analogous to that presently under consideration is to be found in Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342. In that case the validity of notices to attend for examination issued pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) was under consideration. The notices had been signed by Mr Osborne as acting Deputy Commissioner of Taxation in Sydney. At the time the notices were issued there was a delegation by the Commissioner of Taxation to “the person for the time being occupying, or performing the duties of, the office of Deputy Commissioner of Taxation, Sydney” of a number of functions including those under s 264. In a memorandum sent to the Commissioner, Mr Cortese, the Deputy Commissioner of Taxation, Sydney, recommended the temporary transfer of Mr Osborne to the position of Deputy Commissioner. The Commissioner endorsed the memorandum “approved” and dated and initialled it. However, reg 108(1) of the Public Services Regulations 1935 (Cth) provided that the secretary of the Department “may give a direction in writing to an officer” to perform the whole or part of the duties of a Senior Executive Service office in the relevant department. The Full Court of the Federal Court rejected the submission that there had been a mere authorisation by the Commissioner exercising the powers of the secretary, which did not constitute a direction in writing within the meaning of reg 108(1). The Full Court (Bowen CJ, Wilcox and Lee JJ) said at 350:
“It is true that the document was not framed in terms of an instruction to Mr Osborne. However, the document evidenced in writing Mr Boucher’s decision that Mr Osborne should carry out the duties ordinarily carried out by Mr Cortese, during his temporary absence on another project. The endorsement of a memorandum with a signification of approval is a familiar method of recording decision within government. We see no necessity to construe reg 108 in such a manner as to impose an obligation to create a separate document, directed to the person who is to undertake the duties.”
The Full Court seemed to have some difficulty with this reasoning, as it observed that the decision was “based on a particular view of what is usual practice in the recording of decisions within the departments of government”. Nevertheless, I consider the reasoning of the Full Court to be applicable in the present circumstances, as it demonstrates a need for there to be, at the very least, something in writing identifying the subject of the direction or delegation.
97 Further, there are dicta in the RPA case which assist in resolving the current issues. Ormiston AJ noted that when the word “delegate” appeared in the statute “it ordinarily connotes a degree of formality especially when the provision requires that the delegation shall be ‘in writing’”. This observation is equally applicable to a statutory or regulatory provision that a direction in writing be given to an officer to perform duties.
98 These observations support the conclusion that there was no valid delegation of power under s 165 of the Customs Act to Mr Walker. In particular, they support the proposition that there was no sufficient delegation of power to Mr Walker by way of direction to act in Mr Johnson’s place on either 16 May or during the period 19 May to 23 May 1997.
99 A provision which requires an act to be in writing must be considered by reference to the context in which it appears. The notion that something be done in writing is designed to provide a measure of formality and official identification. In the present context the reason for the delegation to be in writing is no doubt to ensure that any official act carried out pursuant to the instrument of delegation which affects the rights of persons, or impinges upon commercial or personal activities, is seen to be within power and authorised. One can readily appreciate the issues of proof of authority which would arise in the context where the power to delegate acts which impinged upon the rights of individuals was given with no permanent recorded proof of such delegation. As Miles CJ noted in Perpetual Trustee Company (Canberra) Ltd v Lewis (1994) 119 FLR 38 at 45:
“The power to issue notices like those issues pursuant to section 18(2) of the Taxation (Administration) Act is a power ‘whose exercise will be likely adversely to affect rights of the individuals’: O’Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1 at 12 per Gibbs CJ. Therefore an instrument which delegates such a power or part of it should not be construed loosely.”
100 Ms Stretton never gave a written direction to Mr Walker to occupy Mr Johnson’s position for the relevant week. I consider that reg 116A of the Public Service Regulations 1935 mandates the requirement that the relevant direction be in writing before there can be a valid delegation to an officer to perform relevant duties.
101 Sub‑regulation (3) of reg 116A is significant as it provides that:
“A direction, other than a direction required to be notified, takes effect on the day it is given or, where a later day is specified, on that later day.”
Further, sub‑reg (4) of reg 116A provides that “A direction shall be expressed to be continued in force” until a particular date or upon the occurrence of an event. These provisions demonstrate the formal and structured nature of the direction to be given. This conclusion is supported by Formosa v Secretary Department of Social Security (1988) 46 FCR 117 at 121‑124 and Wu v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245 at 278‑279.
102 In the present circumstances there was no direction in writing from Ms Stretton either before or after the period in which Mr Walker acted in the place of Mr Johnson. There was apparently a computer entry made on 13 May 1997 in relation to a recommendation that Mr Walker act in place of Mr Johnson but there was no indication that Ms Stretton had approved of that recommendation until a subsequent computer entry was made on 2 June 1997.
103 The end result of the delegation issue is that notwithstanding the deficiencies in the delegations which occurred, the demands made by Mr Walker were valid and effective demands, having regard to the provision of s 153 of the Customs Act and the High Court’s analysis in Malika Holdings.
Did the Tribunal properly construe the tariff classifications?
104 The first submission by the applicant was that the terms “automotive diesel oil”, “marine diesel fuel” and “industrial diesel fuel” respectively covered only products which were both suitable for use and intended by the importer for use as such. Secondly, the applicant submitted that because of the absence of “or” in the sub‑heading, a product was required to fall within all three terms in order to be covered by the sub‑heading. (The applicant submitted that it had not gone this far and that it was saying that there was a common element to all three subjects so that if a product fell within one of the three it fell within all of them because there was a common genus). The Tribunal found that the product fell into all three categories so that there is no substance in this second submission.
105 Ultimately the Tribunal rejected the applicant’s submission that the terms “automotive diesel oil”, “marine diesel fuel” and “industrial diesel fuel” respectively covered only products which were both suitable for use and intended by the importer for use as such. It rejected the submission that the intention of the importer in relation to the importation of the solvent was relevant in its determination of the appropriate tariff classification. It ruled that “intention” was “altogether irrelevant”. Put shortly, the Tribunal did not consider that the meaning and effect of the terms contained in the tariff classification turned on the intention of the importer and in this respect I cannot find fault in the Tribunal’s reasoning.
106 Instead, the Tribunal considered the physical and chemical properties of the product and its suitability for use as the relevant determining factors. It directed itself properly on the evidence by reference to the relevant cases. It gave meaning to sub‑heading 2710.00.20 by reason of its finding, in substance, that the terms “automotive diesel oil”, “marine diesel fuel” and “industrial diesel fuel” had an ordinary meaning, not a particular trade meaning or usage, which was measured or determined by reference to its characteristics, physical properties and specifications and suitability for intended use. It distinguished sub‑heading 2710.00.20, saying that it did not contain a “use” based classification, unlike sub‑heading 2710.00.40 which described the relevant product or goods as “Kerosene for use in aircraft”.
107 The applicant submitted that the actual use or uses intended by the importer was a matter which played a part in the classification process and could be considered. Reliance was placed on Collector of Customs v Savage River Mines (1998) 79 ALR 258. In that case the Tribunal characterised the relevant product as “topped crude” and consequently it did not need to give consideration to whether it could be characterised as crude oil having regard to its proposed use. As the Full Court noted, the Tribunal “firmly rejected” a use based distinction as the normal approach to classification. Nevertheless the Full Court observed (at 265‑266) that:
“… fuel oil is oil adapted for use as fuel, ordinarily in a furnace or engine or for heating, a use based distinction may be admitted in the present case. Its importance in the process of characterisation is a matter of evidence. The tribunal was entitled and obliged to consider the evidence to ascertain whether, having regard to such factors as physical and chemical properties and suitability for particular uses, the product in question was ‘fuel oil’ or not.”
The Full Court concluded that the Tribunal had not applied the interpretation rules properly and had construed sch 3 as requiring a distinction to be made between “topped crude” and “fuel oil” in such a way as to render the two classes mutually exclusive. As the Tribunal had precluded itself from a proper consideration of the evidence to determine whether the product was fuel oil, the appeal was allowed and the matter referred back to the Tribunal, to be decided according to law.
108 The applicant relied upon this decision as authority for the proposition that intended use was part of the classification process and could be considered. I do not consider that the Full Court’s reasoning supports such a conclusion. Indeed, counsel for the applicant accepted that Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131, Chinese Food and Wine Supplies Pty Ltd v Collector of Customs (Vic) (1987) 72 ALR 591 and Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449 supported the proposition that the purpose or intention of the particular importer was irrelevant to the issue of classification.
109 The respondent challenged the applicant’s submission that a person classifying goods under the tariff is entitled to have regard to the intended use of the imported goods. The respondent supported the Tribunal’s finding regarding the irrelevance of the intention of the importer and its finding that it was the objective characterisation of the goods that was relevant. It contended that this approach was consistent with established authority such as Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (supra) at 155, Chinese Food and Wine Supplies Pty Ltd v Collector of Customs (Vic) (supra) at 599; Times Consultants Pty Ltd v Collector of Customs (Qld) (supra) at 462.
110 The respondent submitted that in any event the intention of the applicant became of no assistance to the applicant because the Tribunal, according to the respondent, did not accept that the applicant had the subjective intention it claimed.
111 The Tribunal adopted the ordinary meaning of the words in sub‑heading 2710.00.20 as used and understood in the industry having regard to the characteristics of the goods and their suitability for their relevant use. It is apparent from the Tribunal’s reasoning that it took into account the evidence of the witnesses called by both the applicant and the respondent. There was evidence before the Tribunal that in the industry, automotive diesel fuel was identified by reference to the physical and chemical characteristics set out in Australian Standard AS3570, with some qualifications, and by reference to its suitability for use as automotive diesel fuel.
112 The Tribunal’s finding that the words in sub‑heading 2710.00.20 had an ordinary and not a trade meaning, where such meaning was determined by reference to industry evidence as to characterisation, was consistent with the approach taken in earlier cases: Collector of Customs v Pozzolanic Enterprises Pty Ltd (supra) at 287; Collector of Customs v Agfa‑Gevaert Limited (supra)at 396; Chief Executive Officers of Customs v Tasmanian Electro Metallurgical Co Pty Ltd (1997) 76 FCR 476 at 484‑485; W & D Engineering Pty Ltd v Chief Executive Office of Customs [2000] FCA 440.
113 The applicant also complained that the Tribunal had failed to consider, and make findings in relation to, the substantial body of trade evidence which had been led by both parties. I am satisfied that the Tribunal considered the trade evidence in relation to the imported solvent. The Tribunal considered, analysed and dealt with evidence of experts and witnesses from both sides as to the nature, characteristics and content of the product imported by the applicant and the tariff classification categories into which it might fall. This consideration by the Tribunal (pars [15] to [97] of its Reasons) constituted a significant part of its reasons. In these passages the Tribunal considered the trade evidence in relation to the meaning and content of the terminology used in the tariff classification.
114 The respondent submitted that the applicant’s complaint that the Tribunal erred in finding that the requirements of the Australian Standard regarding cloud point and oxidation stability were relatively unimportant was a finding of fact and not a matter of law, and was therefore not properly the subject of appeal. The applicant’s complaint appeared to be that the evidence was all one way and there was no evidence at all upon which the Tribunal’s finding could have been based. However, as the respondent pointed out, the applicant’s evidence in relation to cloud point and oxidation stability was disputed by a number of the respondent’s witnesses and I am satisfied that this ground is not made out. The issue was a matter of fact for the Tribunal and it was open to the Tribunal to reach the conclusion it did in this respect.
115 The applicant initially submitted that there was no evidence upon which the Tribunal could have found that the Cetane Index was of singular importance in relation to automotive diesel oil was not sustainable because of the evidence of Mr Shuptrine. Counsel for the applicant abandoned this ground at the hearing.
116 The applicant also submitted that the Tribunal erred in the manner in which it approached the competing sub‑headings in sub‑heading 2710.00.20 of sch 3 of the Customs Act. The applicant submitted that the Tribunal was obliged to consider all the sub‑headings or classifications in item 2710 which were at the same level of the hierarchy with each other. The applicant referred to the general rules of interpretation of sch 3 which are to be found in sch 2 to the Customs Tariff Act. The applicant submitted that sub‑heading 2710.00.90 “Other” was to be considered at the same time as one considered, for example, sub‑headings 2710.00.20 and 2710.00.30.
117 The respondent submitted that the Tribunal had not erred in its construction of sub‑heading 2710.00.90 as the word “Other” obviously meant “other than as classified above”. The Tribunal regarded the point as so obvious as not requiring elaboration. Notwithstanding the applicant’s submissions in relation to s 7(2) of the Tariff Act and the reference to the letters “NSA” in the schedule, I do not consider that the Tribunal erred. The interpretation and construction given to the expression “Other” in sub‑heading 2710.00.90 by the Tribunal was consistent with the reasoning of the Full Court of the Federal Court in Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285. See in particular Wilcox J at 292 and Burchett J at 300 where their Honours considered that the expression “Other” in a similar tariff context referred to goods which are not within the description in an earlier or preceding paragraph.
118 The applicant submitted that the Tribunal rejected the possible use of the oil as part of the analysis of determining classification. The applicant submitted further that although the Tribunal had reproduced in its reasons a substantial body of the evidence on the purpose for which the oil could be used and for which it was imported, it had not made reference to that evidence in its reasons and had in effect not determined the matter.
119 I reject this submission. I am satisfied, having regard to the structure of the Tribunal’s reasons, that it considered the evidence relating to the purpose for which the oil could be used. It categorically rejected the proposition that the intention of the importer was relevant.
120 The next error of law upon which the applicants relied in relation to the classification issue was that the Tribunal either mistook or ignored the manner in which the applicant relied upon Australian Standard AS3570. The applicant relied upon the standard not on the basis that it had legislative or binding effect but rather on the basis that it represented the industry consensus as to the minimum quality it would accept when selling a product as automotive diesel fuel in Australia. It is clear from the Tribunal’s reasons that it recited and took into account a considerable body of evidence, from a number of witnesses, related to the Australian Standard and the specification it established for a standard for heating and other fuel.
121 The applicant was critical of the manner in which the Tribunal dealt with the evidence in relation to the Australian Standard. I am satisfied that the Tribunal sought to understand, and did in fact understand, the manner in which the Australian Standard was relied upon. I reject the submission that it did not understand the submission which was put to it in relation to the Australian Standard. The Tribunal made a finding (in par 125(f)) that the specifications required by the applicant when it ordered the product were akin to those apposite to automotive diesel fuel and were far more extensive than those required for a mere solvent.
122 The Tribunal made a finding of fact that even if the product did not comply with the Australian Standard this fact was not conclusive because two tests were not carried out. The applicant challenged the Tribunal’s finding, claiming that these tests were relatively unimportant in the scheme of things, but that was a matter of fact for the Tribunal. The Tribunal had an abundance of evidence before it in relation to the nature of the Australian Standard and the specifications provided in it. The Tribunal ultimately made its finding on the classification of the product by reference to the specification requested by the applicant. In doing so it took into account the consequences and provisions of the Australian Standard and thus found that the Australian Standard was not determinative having regard to the specifications provided or laid down by the applicant.
The Tribunal’s findings in relation to Mr Tribuzio
The credibility of Mr Tribuzio
123 The applicant submitted that the Tribunal made an error of law in its finding that the evidence of Mr Tribuzio was unacceptable and that he was not worthy of credibility. The applicant submitted that there was no basis for that finding by the Tribunal and that it misconceived or misunderstood some of the significant evidence upon which it relied in reaching its conclusion. It was also submitted by the applicant that the Tribunal failed to have regard to the fact that most of Mr Tribuzio’s evidence was not challenged in cross‑examination and that the evidence of other witnesses and material before the Tribunal, if accepted, would have corroborated that evidence of Mr Tribuzio’s which was rejected. In this respect the applicant relied upon the reasoning of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588.
124 The determination of the issue whether Mr Tribuzio’s evidence was unacceptable and whether his evidence was not worthy of credibility was quintessentially a matter for the Tribunal. The applicant submitted that a tribunal that relied on an adverse finding of credit committed a reviewable error if it failed to consider all the evidence in relation to critical issues and failed to state reasons for its acceptance or objection of them. The applicant also submitted that reviewable error would occur where there was a failure to reconcile an adverse finding of credit with other unchallenged evidence of the impugned witness, or inconsistent evidence or evidence which could support another conclusion and which misconceived the evidence upon which the finding was made.
125 In par 43 of the Tribunal’s reasons, the Tribunal set out what it understood to be Mr Tribuzio’s contentions as to why he whited‑out the heading to the specification and pro forma invoice document. In par 124(a) of its reasons the Tribunal set out three important aspects in respect of which it concluded that Mr Tribuzio’s evidence was unacceptable and not worthy of credibility. It is important to set out the Tribunal’s findings in full in relation to Mr Tribuzio’s credibility (par 124):
“(a) We cannot accept the evidence of Mr Tribuzio as credible. His demeanour as a witness was unsatisfactory. He was at times evasive and bellicose. He plainly resented the cross‑examination by Mr Bell and displayed his resentment in no uncertain manner. Mr Moshinsky, in his final address, referred to the judgment of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 (per Kirby J at 328) as to the dangers inherent in making decisions based on perceptions as to demeanour. Mr Tribuzio’s evidence was in our view unacceptable and not worthy of credibility, in particular, in the light of three important aspects. In the first place, his denial of knowledge of and expertise in the relevant industry was belied by his post‑graduate qualifications and experience in this area. In the second place the alleged reliance on Mr Butler’s advice fails in the light of Mr Moshinsky’s statement as to clause 44 of the Applicant’s submissions, even apart from the fact that Mr Butler gave guarded advice based on information which was not complete. But the most unsatisfactory aspect of his evidence related to the whiting‑out of certain documents referred to earlier in these Reasons. Mr Tribuzio said that he selected X370 as a suitable new name by reference to the boiling point of the product. He said furthermore (and we do not believe him) that the whole whiting‑out process was undertaken in order to ensure that the banking documents were in order and so that there would be no difficulty as regards payment under the letter of credit. It was for this reason, so he said, that the whiting‑out process was adopted. These contentions were adhered to by Mr Tribuzio, despite their inherent impossibility. The transaction was one between Jayta as seller, and the Applicant as and purchaser. How precisely the product was named in the documents as between seller and purchaser was entirely immaterial, since each of them was aware of what precisely was being bought and sold. Jayta called the product ‘gas oil’, which is a middle distillate. It was at the instance, and indeed insistence, of Mr Tribuzio that the renaming took place, and in documents referable to the same two parties. The contentions as regards the bank documents are ludicrous. The bank would have been satisfied with whatever description the parties gave to the product, and whether ‘gas oil’ or any other appropriate description. How the precise product was described was of no relevance to the bank. In the original specification the whiting‑out was complete; in the pro forma invoice, both terms originally appeared, but the ‘gas oil’ reference was deleted. Mr Brothers agreed that the whiting‑out was not necessary, so far as the bank was concerned and in this regard his evidence was inconsistent with the evidence of Mr Tribuzio.
(b) It was not originally intended that Mr Brothers would give evidence. He did so after Mr Tribuzio had faired badly in cross‑examination. (Mr Butler also gave evidence as something of an afterthought, possibly after the Tribunal’s ruling as to the recall for the second time of Mr Tribuzio). Mr Brothers’ evidence was certainly more fluent and controlled than that of Mr Tribuzio; at the same time it was repeatedly qualified to the effect that statements were made to the best of his recollection.
(c) We consider that the whiting‑out process was done for one reason and one reason only, and that was to deceive the Respondent. Mr Moshinsky referred us to the decision in Bringinshaw v Bringinshaw (1938) 60 CLR 336, as to the test as to fraud and contended at some length that there was after all, no motive for fraud. That contention was disingenuous; there was indeed a motive and that motive was to deceive the Respondent and to escape duty. The 90 category is duty free whereas each of 20 and 30 attracts duty. No other conclusion is reasonable, or even possible. The contention as to an alteration for the purpose of ensuring that banking documents were in order is altogether unacceptable.
(d) The product was different in a material sense from Certrex 70; moreover the specifications required were entirely consistent with the product being diesel fuel. We therefore have no doubt at all that we should and do find in relation to section 165(1) [sic] of the Customs Act, that the Applicant did indeed misinform the Respondent and that the respondent was in no way at fault, and moreover, and to the extent necessary we should and do find that the Applicant did indeed commit a fraud on the Respondent. We agree with Mr Moshinsky that it would not be correct to categorise the acts of the Applicant in this regard as ‘careless misdescription’. There was nothing careless about it; the deception was altogether deliberate.”
126 This is a powerful finding, all the more so after the Tribunal has had its attention drawn to, and it had recognised and acknowledged, the decision in Briginshaw v Briginshaw (supra).
127 The Tribunal’s use of expressions such as “inherent impossibility” and “ludicrous” were perhaps more extreme than may have been necessary for the relevant findings but without putting too fine a touch on the Tribunal’s language, it is apparent that the Tribunal was saying no more than that it did not accept Mr Tribuzio’s explanations.
128 The expression “impossibility” is, on one view, an inappropriate description of what the Tribunal was finding in relation to Mr Tribuzio’s evidence. However, I am satisfied that by referring to “inherent impossibility” the Tribunal was referring to “inherent improbability”. Although the description “impossibility” does not easily describe the matters to which the Tribunal had referred, it is quite apparent from the totality of the Tribunal’s reasons that it was rejecting Mr Tribuzio’s explanations as not being credible or probable.
129 The three aspects of Mr Tribuzio’s evidence which the Tribunal concluded were unacceptable and not worthy of credibility (par [125] above), in conjunction with its view of his demeanour, did not cover all of the matters in respect of which Mr Tribuzio gave evidence, but they were sufficient, in my opinion, to warrant the Tribunal making the finding it did as to Mr Tribuzio’s credit. It was open to the Tribunal to find that the applicant’s contention that the alteration of the documents was for the purpose of ensuring the banking documents were in order was unacceptable.
130 The applicant submitted that the Tribunal’s conclusion as to the reason for the whiting‑out process was based upon a misconception because it did not refer to the fact that the original specification was whited‑out for the purpose of having it shown to the competitor, Hin Leong Trading. However it is apparent, looking at the Tribunal’s reasons as a whole, that the Tribunal recognised that there had been a different explanation in relation to the Jayta specification. Nevertheless, there remains the whiting‑out of the name of the product on the pro forma invoice which led the Tribunal to make a finding in relation to the explanation regarding the banking documents.
131 The Tribunal’s conclusion in relation to the classification issue was as follows:
“The classification issue is, in the end, relatively simple, resolved to a considerable extent by our conclusions as to the factual circumstances surrounding the whiting‑out process, and the weight of the scientific evidence as to the nature of the product.”
When taken in the context of the other parts of the reasons relating to the findings of fact in relation to Mr Tribuzio’s evidence, it is apparent that the Tribunal was stating that it did not accept Mr Tribuzio’s evidence as to the reason for whiting‑out but rather regarded the whiting‑out as an attempt to conceal the true classification or character of the product. I am satisfied that this finding was open to the Tribunal on the material before it.
The finding of fraud against Mr Tribuzio
132 The applicant raised two questions of law in relation to Mr Tribuzio’s evidence and the finding that he had committed a fraud. The first was whether the Tribunal’s finding that Mr Tribuzio committed fraud was vitiated by error. The second was whether that finding was one which no reasonable Tribunal could have made on the evidence. In the course of submissions, counsel for the applicant clarified the second ground, contending that the ground was not put forward on the basis that there was no evidence before the Tribunal upon which the finding of fraud could have been made or that the Tribunal should have reached another conclusion. Rather the ground advanced was that the Tribunal’s finding in relation to Mr Tribuzio’s explanation for the whiting‑out of the invoice was misconceived and that there was other evidence before the Tribunal which the Tribunal had an obligation to consider and to refer to in its reasons, both of which it failed to do.
133 As noted above (par [61]), the Court must be careful to ensure that what is raised as a question of law on an appeal from the Tribunal is, on examination, no more than a question or issue of fact masquerading as a question of law. The grounds relied upon by the applicant in support of these two questions of law were:
“The Tribunal erred in law in finding that the evidence of Sergio Tribuzio was unacceptable and not worthy of credibility because:
(A) The Tribunal found that ‘gasoil’ is a middle distillate product and did not find that it referred to automotive diesel oil, industrial diesel fuel or marine diesel fuel;
(B) The Tribunal failed to consider at all the way in which the Applicant’s case was put regarding the purchase and importation of the product and instead relied on misstatements or misunderstandings of the evidence of Sergio Tribuzio and Joseph Brothers. Particulars are contained in Annexure A.
No reasonable Tribunal could have found that the Applicant committed fraud on, and deliberately misinformed and deceived, the Respondent, if the Tribunal considered the Applicant’s case as it was put and the matters referred to in paragraph 4(e)(i)(A) [sic] and paragraph 4(e)(i)(B) [sic] above.”
134 The particulars contained in Annexure A, referred to, set out a number of instances in which it was said that the Tribunal’s findings in relation to Mr Tribuzio’s evidence were either not open on the evidence before the Tribunal or were inconsistent with other evidence given before the Tribunal.
135 I am not satisfied that the particulars given of the grounds for the errors of law are such that it can be said that the Tribunal committed, or fell into, an error of law. The particulars contained in Annexure A substantially amount only to a challenge to the factual findings of the Tribunal. It may be that some of the findings were inconsistent with, and contrary to, other evidence before the Tribunal. However, I am not satisfied that the Tribunal failed to consider the way in which the applicant’s case was put regarding the purchase and importation of the product and I am not satisfied that the Tribunal relied upon misstatements or misunderstandings of the evidence of Mr Tribuzio or Mr Brothers. There was certainly evidence before the Tribunal upon which it was open to the Tribunal to make a finding that the applicant or Mr Tribuzio had committed a fraud on the respondent. I reject the submission that no reasonable tribunal could have found the applicant committed fraud on, and deliberately misinformed and deceived, the respondent.
136 This conclusion can be demonstrated, by way of example, by reference to the following subparagraph in Annexure A:
“(ii) In concluding that the Applicant committed fraud, the Tribunal relied upon the finding that the evidence of Tribuzio was unacceptable and not worthy of credibility but failed to consider, or make reference to, the following matters, which it was obliged to do –
(A) The Tribunal failed to consider at all the unchallenged evidence of Tribuzio that –
(i) The Applicant had sold large quantities of solvent heating oil under the brand of ‘Solvent 1H’ for several years prior to the importation of the product,
(ii) The product imported on the Stolt Lily was blended by the Applicant with solvent heating oil and was sold, together with stocks of locally sourced solvent heating oil, under the brand Solvent 1H to the Applicant’s customers,
(iii) The Applicant kept detailed records of all purchases and sales, which were inspected by the Respondent on at least six occasions during 1992‑1997 and on each occasion the Respondent’s officers confirmed compliance with the Respondent’s requirements,
(iv) the product was purchased because of a temporary shortage of locally sourced solvent heating oil in Australia,
(v) his only interest was in acquiring product which had four specified properties,
(vi) when the product arrived in Australia he arranged for testing to be carried out in relation to four properties only,
(vii) in response to his enquiry about product with the four properties, he was given the Jayta specification which included twelve properties, eight of which were of no interest to him,
(viii) the product was entirely suitable for use as a hydrocarbon solvent and was interchangeable with solvent heating oil in many solvent applications,
(ix) the product was sold at the then prevailing market price for solvent heating oil, which was substantially lower than the prevailing market price for automotive diesel fuel;
(B) The Tribunal failed to make reference in its reasons to the independent evidence which corroborated the evidence of Tribuzio;
(C) The Tribunal failed to make reference in its reasons to the independent evidence which was inconsistent with the stated reasons for its findings regard the credit of Tribuzio;
(D) The Tribunal failed to consider a relevant matter, namely that in 1997 the Shell Company imported a large cargo of petroleum product which was described on the Entry for Home Consumption as ‘returned gasoil’ and was classified to subheading 2710.00.90…”
137 Most of the matters particularised in this subparagraph are not relevant to the Tribunal’s finding that Mr Tribuzio’s evidence in relation to the whiting‑out on the invoice was unacceptable and not worthy of credibility. Any failure of the Tribunal to consider or make reference to those matters was not relevant to the critical findings of the Tribunal in relation to Mr Tribuzio’s credibility. For example, I ask rhetorically, of what relevance to any issue before the Tribunal was the fact set out in sub‑par (D) that:
“In 1997 the Shell Company imported a large cargo of petroleum product which was described on the Entry for Home Consumption as ‘returned gasoil’ and was classified to subheading 2710.00.90”
Further, most, if not all the matters set out in sub‑par (A) are similarly irrelevant.
138 The applicant put its submission another way. It was submitted that a court can review a finding of fraud based on a finding in relation to a witness’ credit on three bases, namely:
· An analysis of the evidence that is rejected;
· Whether there was unchallenged evidence of the impugned witness which is not referred to in the reasons apart from which, if believed, would contradict the ultimate finding or support another finding;
· Evidence independent of the impugned witness that was not referred to but which, if believed, would corroborate the impugned testimony or lead to another conclusion.
The applicant submitted that each of these matters, if established, would lead to an error of law. In this context it referred to State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (supra); Mifsud v Campbell (1991) 21 NSWLR 725 and Thiagarajah Kandiah v Minister for Immigration & Multicultural Affairs [1998] FCA 1145. It was submitted that in each of these cases, and also in NRMA Insurance Ltd v Tatt (1989) 92 ALR 299, an appellate court was prepared to reverse a finding of fraud based on the finding of credit in relation to a witness where the rest of the matrix of the evidence was not properly considered. The applicant submitted a summary of that evidence of Mr Tribuzio and Mr Brothers which was not challenged and some of which, particularly in relation to Mr Brothers, was not referred to by the Tribunal, but that if believed would not have supported a conclusion of fraud.
139 Although the Tribunal may not have given full detailed reasons on all the contentious issues before it, I am satisfied that it gave sufficient reasons in relation to all the material questions of fact before it which warranted the findings and conclusions it reached. This can be seen, in particular in par 124 of its reasons, par [125] above.
140 The applicant also submitted that the Tribunal failed to give adequate reasons in relation to its findings as to the scientific evidence. It reached the conclusion that the classification issue was resolved not only by the conclusions in relation to the whiting‑out process but also by the weight of the scientific evidence as to the nature of the product. The applicant submitted that there was no reasoning process in relation to the Tribunal’s findings as to the evidence it accepted in relation to the nature of the products. However the Tribunal had set out in considerable detail the scientific evidence which supported its findings.
141 The Tribunal made a specific finding that “the whiting‑out process was done for one reason and one reason only, and that was to deceive the respondent”. After noting that it had been referred to Briginshaw v Briginshaw (1938) 60 CLR 336 as to the test as to fraud, the Tribunal made a specific finding that:
“… the applicant did indeed commit a fraud on the respondent … There was nothing careless about it; the deception was altogether deliberate.”
142 The applicant submitted that the Tribunal’s reasoning involved the following progression – it did not believe Mr Tribuzio, therefore he must have been concealing the nature of the product for a nefarious reason, therefore the product has to be classified as the particular product, the nature of which Mr Tribuzio was trying to conceal. However, this is not the chain of reasoning adopted by the Tribunal. It rejected Mr Tribuzio’s evidence as not being credible, which had the consequence that there was a basis for a finding of motive to deceive in relation to the nature of the product, particularly because the nature and classification of the product had a monetary implication. To the extent to which Mr Tribuzio’s evidence was relevant for determining the purpose for the use of the product which was imported, the Tribunal rejected his evidence.
143 The applicant attacked the Tribunal’s finding in relation to the whiting‑out on the basis that the Tribunal mistakenly believed that it was the bank that required the documents to be renamed. I am not persuaded that the Tribunal made such a finding. In any event, even if the Tribunal was making a finding of fact on this basis, that was a matter within the province of the Tribunal and was open to it on the evidence, particularly in light of Mr Tribuzio having conceded the point in evidence.
144 It is clear from the cross‑examination of Mr Tribuzio that the respondent challenged Mr Tribuzio’s explanation for the whiting‑out of the pro forma invoice. Mr Tribuzio’s explanation was challenged, for example, when it was put to him that he was concerned to change the pro forma invoice because that was the official document recording the nature of what was purchased. It was put to Mr Tribuzio that his intention was to ensure that the product was not described as gas oil. It was also put to Mr Tribuzio that he was concerned to cover up the fact that he was importing gas oil and that he ensured that it was not referred to as such in the official documentation.
145 The following exchange occurred between the Deputy President and Mr Tribuzio:
“THE D PRESIDENT: There is something I am puzzled about. Mr Tribuzio, if I understood you a moment ago, you said you had to get the description right because the bank required that it be right?---That was one of the reasons.
Am I to understand that if the letter of credit had been issued in the name of Gasoil instead of X‑370 it would not have been paid?---No, no, because as we ordered it as X‑370, and I filled the – the LC was filled out as X‑370, there is a possibility, and I didn’t say that this was the major issue. The major issue here is that we were offered a product of generic nature and we rebranded it. Now, this was a - - -
What has that got to do with the bank?---Well, the bank gets a letter of credit and it sees a descriptor. If the descriptor doesn’t match the invoice, technically they can reject the LC as being the misspellings or the definition is incorrect. This happens with the banks all the time. I mean, she went on about me to spell Philippines with two “I’s”.
Yes, you told us that. What I am getting at is this. You go the bank, do you not, because after all you are issuing a letter of credit?---Yes, that is right.
Now, assuming you have gone to the bank with an invoice which said Gasoil?---Yes.
And you said to your bank, which I think is Westpac?---Yes
And you said, ‘Westpac, please issue a letter of credit for the payment of this consignment of Gasoil’?---that is right. That is correct.
Would there have been any difficulty at all?---No. No. If that is what we ordered and that is what we would have done, they would have paid it onto our instructions.
Thank you.”
146 Mr Tribuzio’s explanation for the whiting‑out on the pro forma invoice varied in some details. He said, for example, that it was “purely an administrative issue”. The administrative issue apparently related to the desirability of there being consistency in the description of documents submitted to the bank to ensure payment under a letter of credit. In answer again to the Deputy President Mr Tribuzio described the whiting‑out as a re‑branding issue. Mr Tribuzio’s evidence in relation to the whiting‑out issue was such that it was open on the evidence before the Tribunal, and in particular Mr Tribuzio’s cross‑examination, for it to reach the conclusion and make the findings it did in par 124(a) of its reasons. In particular, it was open to the Tribunal to reject Mr Tribuzio’s explanation that the whiting‑out process was undertaken in order to ensure that the banking documents were in order. For example, Mr Tribuzio agreed to the proposition that if the product had been called gas oil there would have been no problem with the bank paying on the letter of credit. Mr Tribuzio rejected the proposition put to him by counsel for the respondent that there was a carefully put together paperwork trail to cover up the reality of the importation. It was open to the Tribunal to reject Mr Tribuzio’s explanation and find that the whiting‑out was done in order to conceal the reality of what was being imported. Counsel for the applicant submitted that it was not open to the Tribunal to reject Mr Tribuzio’s explanation because the Tribunal did not understand the explanation. I am satisfied that the Tribunal understood Mr Tribuzio’s explanation and that its findings were open to it on the evidence before it.
147 The assessment and determination of the credibility of Mr Tribuzio was peculiarly a matter for the Tribunal. Its analysis, conclusions and findings in relation to his evidence in par 124 of the Tribunal’s reasons demonstrate that the Tribunal’s findings that the applicant committed a fraud on the respondent was a finding open to it on all the material before it. In making that finding the Tribunal indicated and set out that evidence which it considered warranted the conclusion it had reached. It did not refer to all the evidence which had been placed before it but a considerable body of that evidence was not relevant to, or supportive of, the finding of fraud. Other evidence arguably supported contrary findings. In such circumstances it was not required to refer to that evidence: see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (supra) per McHugh J at 422‑423 and the discussion in par [65] above. It is also not open to the Court to substitute a different finding where the finding was open to the Tribunal on the evidence.
148 Ultimately the applicant submitted that the Tribunal’s reasoning based on its findings in relation to the whiting‑out disclosed that it had confused the issue of the re‑branding of the product with the reason for the white‑out. It was submitted that according to the evidence the re‑branding was undertaken for internal purposes and that the whiting‑out on the pro forma invoice was undertaken to ensure consistency between the various documents. An analysis of the evidence discloses that both Mr Tribuzio and Mr Brothers gave a number of explanations in relation to the re‑branding and the reason for the whiting‑out. Some of these explanations have been referred to in the passages to which I have referred above. The Tribunal recognised in its reasons that there were a number of explanations, that there were the two phases of brand classification and that the whiting‑out of the name of the pro forma invoice was said to be done to ensure consistency of the documents for the purposes of the bank. Having regard to the evidence of Mr Tribuzio it may have been open to the Tribunal to find that he had said that the whiting‑out process was undertaken, certainly in relation to the pro forma invoice, to ensure consistency with the bank documents. It was also open to the Tribunal to find, as it did, that his explanation for the whiting‑out of the documents was not acceptable or credible.
149 The applicant distilled its submission in relation to the issue of the whiting‑out into the simple proposition that the evidence was that the name was whited‑out on the pro forma invoice to ensure consistency from at least the purchase order through to the letter of credit. The applicant accepted that the Tribunal did not have to accept that evidence but submitted that the Tribunal misunderstood or misstated the evidence and the applicant’s submission. The applicant then submitted that as a result the Tribunal proceeded down a path of inquiry that was not open to it.
150 The applicant accepted that if the Tribunal had heard Mr Tribuzio’s evidence that the whiting‑out was to ensure consistency of documentation so there would be no problems with the bank raising issues in relation to the letter of credit, determined that it was not satisfied that that evidence ought to be accepted, and heard the cross‑examination and was satisfied that the purpose of the whiting‑out was to conceal the true nature of the product from the authorities, then the applicant could not have challenged the Tribunal’s finding of fraud on the basis that the rejection of Mr Tribuzio’s evidence was as a result of him being disbelieved. I am satisfied that the Tribunal’s reasons in relation to the whiting‑out demonstrates that this was the manner in which it approached the issue of the whiting‑out. I am not satisfied that the Tribunal misunderstood the evidence or proceeded on a misapprehension in relation to it.
CONCLUSION
151 The application by way of appeal from the Tribunal will be dismissed with costs.
| I certify that the preceding one hundred and fifty‑one (151) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. |
Associate:
Dated: 25 June 2004
| Counsel for the applicant: | J Slonim & A Hamlyn-Harris |
| | |
| Solicitor for the applicant: | Louis Gross & Associates |
| | |
| Counsel for the respondent: | A L Cavanough QC & J Lenczner |
| | |
| Solicitor for the respondent: | Australian Government Solicitor |
| | |
| Date of Hearing: | 11, 12, 13, 14 and 20 June 2002 |
| | |
| Date of written submission: | 29 January 2003 and 13 February 2003 |
| | |
| Date of Judgment: | 25 June 2004 |
