CATCHWORDS Practice and Procedure ~- Appeal - Notice of appeal failed within time but served out of time - Application by respondent to appeal to strike out appeal as incompetent - Address of respondent in appeal changed during action ~- Whether appeal "instituted" when filed - Application by appellant to dispense with compliance with the Rules of Court. Federal Court Rules, Order 1 r.8, Order 3 r.3, Order 7 r.6(2), Order 52 rr.12, 15(2) and 18(1). THE HONOURABLE JOHN COLINTON MOORE, The Minister for Business and Consumer Affairs v. TOOHEYS LIMITED N.S.W. No. G122 of 1981 Bowen C.J., Northrop and Morling JJ. 4 November 1981 Sydney. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G122 of 1981 ) GENERAL DIVISION ) BETWEEN: THE HONOURABLE JOHN COLINTON MOORE, The Minister for Business and Consumer Affairs Appellant AND: TOOHEYS LIMITED Respondent ORDER JUDGES MAKING ORDER: Bowen C.J., Northrop and Morling Jd. DATE OF ORDER: 4 November 1981 WHERE MADE: Sydney. THE COURT ORDERS THAT: 1. The motion by Tooheys Limited be dismissed. 2. On the motion of the Honourable John Colinton Moore, the requirement of the rules relating to service of his notice of appeal be dispensed with. 3. Each party pay his or its costs of the motions. > ee IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G122 of 1981 ) GENERAL DIVISION . ) BETWEEN: THE HONOURABLE JOHN COLINTON MOORE, The Minister for Business and Consumer Affairs Appellant AND: TOOHEYS LIMITED Respondent CORAM: Bowen C.J., Northrop and Morling JJ. 4 November 1981. REASONS FOR JUDGMENT On 14 April 1981 application was made under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") by Tooheys Limited seeking an order of review in respect of a decision made by the Delegate of the Honourable John Colinton Moore, Minister for Business and Consumer Affairs, under Part XVI of the Customs Act 1901. Under Part XVI the Minister 1s empowered to make by-laws or determinations in relation to goods for the purposes of items or proposed items in the Customs Tariff. The effect of the Dec en T TDET F ag Te Lure natn ce ote coe eee aT ee ae a a ae CORRIGENDUM Corrigendum to Judgment 1n the matter of The Honourable John Colinton Moore -V= Tooheys Ltd. Dated= 4/11/81 Page 7, Paragraph 2, Line 9 Delete "of the appeal" ~ insert "of the application" 7 eeenrcrercnaoeann sel aman nsteetioe ent ecneve besitos iS ana alee aD at aise esti aaah aa ie tt ANNE e COE AA UMN OATH METI of 7 by-law or determination may be to exempt the goods, the class or kind of goods or particular goods from duty, either wholly or partially. In the present case it was claimed that the effect of the decision under challenge was to refuse to make a determination, with the result that a higher rate of duty was paid and no part of it became refundable under the Customs Act. On 1 June 1981 the Minister filed a notice of objection to competency in the proceedings. Broadly, it was objected that the decision was not one within the meaning of s.3(2)(a) of the Judicial Review Act, it was not of an "administrative character" within the meaning of s.3(1) of that Act, it fell within the exemption contained in para.(e) of Schedule 1 of that Act, and, Tooheys Limited was not a "person aggrieved" within the meaning of s.4(1) of that Act. By agreement the notice of objection to competency was heard as a preliminary matter. On 19 August 1981 Ellicott J. gave judgment dismissing each of the objections. An appeal as of right from such a judgment of a single Judge of this Court lies to the Full Court (Federal Court of Australia Act 1976, s.4 definition "judgment" and s.24). Under the Rules of the Federal Court such an appeal has to be instituted by filing a notice of appeal (Order 52, r.12) and such notice of appeal must be filed and served within 21 days after the date when the judgment was pronounced or within such further time as is allowed by the Court upon application made by motion upon notice issued within the period of 21 days (Order 52, r.15(1)(a) and (b)). What in fact happened was that consideration was given to the question whether or not an appeal should be made. Before a final decision was made Counsel were requested to give a joint opinion. This was received on 3 September 1981. Apparently, departmental practice required submission of the joint opinion to senior officers of the Attorney-General's Department in Sydney and Canberra and to the Minister's Department in Canberra. A decision to file a notice of appeal was made on the afternoon of 9 September 1981. Late in the afternoon of 9 September 1981 notice of appeal was duly filed in the Sydney Registry. It was the intention of the officer of the Deputy Crown Solicitor to serve a copy of the notice of appeal, immediately after filing, upon the solicitors for Tooheys Limited (Order 52, r.2(1), Order 7, 4r.6(2)). The application for the order of review as required by the Rules stated the applicant's address for service (Order 4, r.4). The address given was "39th Floor, Tower Building, Australia Square, Sydney". The document also showed on its backsheet "DX 166". This was a reference to the Document Exchange. The Rules of this Court permit service in certain circumstances by leaving a copy of a document at an Exchange box of a solicitor where a notice has been filed authorising service at the Exchange box or a notice has been added to this effect to the originating process or notice of appearance. The time of service is then two days after it is left in the box (Order 7, r.4). No such notice had been authorised or given. The officer then noticed that in a letter dated 29 May 1981 from the solicitors for Tooheys Limited and an accompanying affidavit which had been filed in the proceedings the address of the solicitors was shown as "Level 57, M.L.C. Centre, Martin Place, Sydney, N.S.W.". The backsheet of the affidavit showed "DX 166 Sydney". The officer formed the view that service might be effected by leaving a copy of the notice of appeal at both addresses but due to the late hour there was not time for this. He then decided that the most practical means of service would be through the solicitors' Document Exchange box, DX 166 Sydney. Accordingly, he took steps to have a letter addressed to the solicitors for Tooheys Limited together with a copy of the notice of appeal delivered to the Document Exchange box of the solicitors. The copy notice of appeal was not received by the solicitors for Tooheys Limited until 11 September 1981. Evidence was also given that during the year ended 30 June 1981 goods totalling in value the sum of Three thousand seven hundred million dollars ($3,700,000,000.00) were admitted under Item 19 of Part 1 of the Second Schedule of the Customs Tariff Act which is the item most frequently involved in the granting of the by-laws or ministerial determinations. Further, that individual applications for grant of by-law under Item 19 were being received at the rate of about 10,000 per annum and that there were in existence a further 6,000 by- laws which had a general application to goods of a particular description and these 6,000 by-laws were reviewed every two years. The wish was expressed to have the Full Court adjudicate on the question whether decisions made relating to the granting or refusing to grant by-laws or determinations were Qecisions subject to review under the provisions of the Judicial Review Act. On 21 September 1981 a notice of motion was filed on behalf of Tooheys Limited seeking the dismissal of the appeal as incompetent pursuant to Order 52, r.18(1). On the same day a notice of change of address of solicitors from Australia Square to the M.L.C. Centre was filed. On 14 October a notice of motion was filed on behalf of the Minister seeking an extension of time under Order 3, r.3 for service of the notice of appeal; alternatively, an order pursuant to Order 1, r.8 dispensing with the requirement of the Rules relating to service of the notice; and, alternatively, an order pursuant to Order 52, r.15(2) giving leave to file and serve a notice of appeal out of time. These two motions came on for hearing before us on 3 November 1981. By agreement they were heard together. We deal first with the motion for an order dismissing the appeal for incompetence. For Tooheys Limited it was argued that the appeal was incompetent because a notice of appeal had not been filed and served within 21 days in accordance with Order 52, r.15. For the Minister it was argued that the appeal was competent because it had been duly instituted by the filing of the notice of appeal (Order 52, r.12) and the failure to serve within time was simply a failure to comply with the Rules which constituted an irregularity but did not mean that the appeal was incompetent. Reference was made to Whitehouse Hotels Proprietary Limited ve Lido Savoy Proprietary Limited (1974) 131 C.L.R. 333. Counsel for Tooheys Limited sought to distinguish this case by pointing to differences in the wording of the Federal Court Rules from the rules considered by the High Court. In our opinion the position is similar under the Federal Court Rules to the position under the High Court Rules. We are not persuaded that any verbal distinction between the two sets of rules would lead to any different result. The appeal was instituted when the notice of appeal was duly filed within time and the failure to serve within time was a failure to comply with the Rules and did not result in the incompetency of the appeal. The appropriate remedy would be under Order 52, r.38. The motion for an order dismissing the appeal for incompetency should be dismissed. We deal now with the motion filed on behalf of the Minister. Counsel for Tooheys Limited argued that there was no power to extend the time for service of the notice pursuant to Order 3, r.3 because the provisions of Order 52 concerning appeals constituted a code which was specific and which governed the matter, notwithstanding the general words of ¢ Order 3. Counsel for the Minister argued that this was a power which was available to the Court should it consider it was proper to exercise it and made reference to Federal Commissioner of Taxation v. Levy (No.2) (1961) 106 C.L.R. 472. As to the request for an order that compliance with the Rules be dispensed with, 1t was argued by Counsel for Tooheys Limited that it was desirable that the hearing of the merits of the matter should now proceed and that if the Minister was unsuccessful at that hearing he could appeal and raise all the preliminary points on appeal at that stage. Counsel informed the Court that he had instructions that after a decision on _ the merits his client would not object to an appeal being brought relating to matters of incompetency of the application . and this would apply even if the Minister required leave at any stage. It was not suggested that Tooheys Limited had im omiinteee suffered "any prejudice" by™reason of "itS "late "récéipt of thé notice of appeal. Counsel for the Minister argued that an explanation for the failure to comply with the Rules had been given, that the Minister had a right of appeal and had duly instituted his appeal, that it was desired to have these preliminary questions decided by the Full Court before the merits were heard and that in addition it was desired to have an authoritative ruling on these questions which: related to very many matters arising for decision on the grant of by-laws or determinations. It was also pointed out that the actions of the solicitors for Tooheys Limited in the way their documents had been prepared had contributed to the situation which had arisen. power which was available to the Court should it consider it was proper to exercise it and made reference to Federal Commissioner of Taxation v. Levy (No.2) (1961) 106 C.L.R. 472. As to the request for an order that compliance with the Rules be dispensed with, it was argued by Counsel for Tooheys Limited that it was desirable that the hearing of the merits of the matter should now proceed and that if the Minister was unsuccessful at that hearing he could appeal and raise all the preliminary points on appeal at that stage. Counsel informed the Court that he had instructions that after a decision on the merits his client would not object to an appeal being brought relating to matters of incompetency of the appeal and this would apply even if the Minister required leave at any stage. It was not suggested that Tooheys Limited had suffered any prejudice by reason of its late receipt of the notice of appeal. Counsel for the Minister argued that an explanation for the failure to comply with the Rules had been given, that the Minister had a right of appeal and had duly instituted his appeal, that it was desired to have these preliminary questions decided by the Full Court before the merits were heard and that in addition it was desired to have an authoritative ruling on these questions which related to very many matters arising for decision on the grant of by-laws or determinations. It was also pointed out that the actions of the solicitors for Tooheys Limited in the way their documents had been prepared had contributed to the situation which had arisen. Turning to the application for leave pursuant to Order 52, r.15(2) to serve a notice of appeal out of time, Counsel for Tooheys Limited submitted that before such leave could be obtained the Minister had to show "special reasons" within the meaning of the sub-rule and that he had not done so. Counsel for the Minister submitted that the circumstances referred to in his arguments set forth above constituted special reasons for the purpose of the sub-rule. The Minister, having a right of appeal, has duly instituted his appeal but has failed to comply with the Rules relating to service of the notice of appeal. His failure to serve within time has not caused any prejudice to Tooheys Limited. Furthermore, although we do not regard the explanation as entirely satisfactory the situation disclosed by the failure to serve within time, we are of opinion that it was contributed to by the form of the respondent's documents. Having regard to the fact that Tooheys Limited has received a copy of the notice of appeal, we consider that the appropriate order in the circumstances is to dispense with compliance with the requirement regarding service of the notice of appeal in Order 52, r.15 (see Order 1, r.8). In view of this it is unnecessary for us to give any decision on the application for an order pursuant to Order 3, 1r.3 extending the time for service or the application for an order granting leave to serve a notice of appeal out of time pursuant to Order 52, r.15(2). We have considered the question of costs. The Minister has succeeded on the motion of Tooheys Limited and the question arises whether costs should follow the event. The Minister has also succeeded on his motion but in his case it was a motion seeking an indulgence and one which Tooheys Limited was entitled to attend and oppose. Because the motions were heard together it would be extremely difficult on a taxation to separate the costs attributable to either motion if separate orders were made relating to each. In the result we propose that each party should bear its own costs of the motions. The orders of the Court will be: 1. The motion by Tooheys Limited be dismissed. . 2. On the motion of the Minister an order be made dispensing with the requirement of the Rules relating to service of his notice of appeal. 3. Each party to pay his or its costs of the motions. ?