mete te pe EAD ' stu em ee ee ee ceed tal hp len yelp tame tery inten ee poe 7 . ea ee ret re eet ete Reem net ded tte en eee ne at tt ta me Me en t) C8) wv IN THE FEDERAL COURT OF AUSTRALIA ) -* ) - VICTORIA DISTRICT REGISTRY ) No. VG 183 of 1982 VICTORIA DisTRr es evrsi ss * ) ) GENERAL DIVISION BETWEEN : TRIMKNIT MANUFACTURING PTY. LTD. AND : HARVEY BATES 22 December 1983 KEELY J. . ~ - REASONS FOR JUDGMENT This is an application under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for an order of review in respect of a decision made by the respondent as delegate of the Minister of Business and Consumer Affairs. The application dated 7 December, 1982 described the "decision" in the following terms :- "Application to review the decision of the Respondent made on 17 December, 1981 pursuant to the provisions of Section 273 of the Customs Act 1901, that the Applicant's tariff quotas for the seven year period commencing 1 January, 1981 be as follows : j | | | | w. oe (a) 71132 units in respect of knitted coats, jumpers, cardigans, sweaters and the like: tube tops, (b) $982,999-00 in respect of knitted coats, jumpers, cardigans, sweaters and the like: tube tops." (The reference above to "1 January 1981" should be to 1982) Paragraph (a) referred to a decision relating to complete garments; paragraph (b) referred to a decision relating co "parts for" garments. Mr. Ostrowski, of Queens Counsel, who appeared with Mr. Hansen for the applicant, stated in final address that the decision sought to be reviewed was 'that relating to full garments, not the one relating to parts. The application seeks to have that decision quashed or set aside and an""order referring the Applicant's application for tariff quota to the respondent for further consideration". Before passing to the substantive questions involved in this application it is desirable to refer to the relevant aspects of the applicant's business in the period prior to December 1981 and the events leading up to the bringing of this application. 3. . The applicant has been an importer of knitted garments since 1971. In the 24 month period ending 30 June, 1980 (which o is the relevant period for the purposes of this application and will be called the base period) the applicant imported from Korea, Hong Kong and the Caribbean region for the purpose of sale to retailers, a large number of knitted goods, including jumpers, cardigans or sweaters (which may be compendiously referred to as jumpers). Some of those goods were ready for sale to retailers as jumpers upon arrival in Australia but the nee erated mad nate te ee emi ee ae te vast majority of the jumpers imported. by the applicant during the base period consisted of front and back pieces or parts of jumpers, which in these reasons will be called parts. The imported parts were in the form of front and back Pieces which, when sown together, made wp complete jumpers ee ete ete ee ee An ees eee ane wee nent ae A ee suitable for sale to retailers. Those parts were invoiced and packed separately but consigned in the same shipment. The applicant arranged to have the parts sown together after the shipment had arrived in Australia - a relatively simple and inexpensive operation. Paine Rene nh et ete, Although Mr. Vlahos, currently and during the relevant '. period a director of the applicant, said in evidence that the knitted garments imported during the relevant period were ee Sad wae ene beeen tenet Stee me Bh ee han ome ordered as "full garments", it is clear that the consignment of s the vast majority of jumpers in the form of parts was at the direction of the applicant. Doubtless the order was placed for te i ye qe amen ee enn ee 4. a specific number of jumpers with a direction that the order be filled by consigning the appropriate numbers of front and back parts which, when sown together, would comprise the number of complete jumpers ordered. A detailed account of the legal and commercial reasons behind the applicant's practice of importing the greater part of knitted goods in parts rather than as complete goods was not giver *to the Court. However it was stated by Mr. Ostrowski, that the practice was a "stratagem" devised by the applicant to reduce the amount of customs duty which would have been payable if all the jumpers ordered had been imported in their complete form. The applicant's stratagem was successful and it was said by Mr. Vlahos that a customs duty saving of approximately 11 per cent on each jumper was achieved by importing jumpers in parts rather than as complete jumpers. It may also be said that the stratagem was successful in large measure because jumpers imported in parts were classified by officers of the Bureau of Customs as falling within the category of goods in the Customs Tariff Act which covered part garments. If the front and back parts had been looked at together and classified as garments falling within the tariff classification applicable to complete jumpers, the applicant's stratagem would have been frustrated. Om 15 August, 1980 the Minister for Industry and Commerce and the Minister for Business and Consumer Affairs in a joint media release announced new assistance arxrangements 'for the 5. te a dae Thee eee he ' textile industry which were to commence on 1 January, 1982. 'The programme of assistance was to run for seven years and essential elements in it were the introduction of revised categories of goods in the Schedule to the Customs Tariff Act, and new tariff quotas applying to clothing products within those categories -~- Shortly thereafter importers of clothing products were notified of the prospective programme by way of a Bureau of Customs Notice (RCN 380/167) attaching a copy of the media * release. Subsequent Bureau of Customs Notices furnished importers with more detail in relation to the type of goods covered by the new propesed categories (which consolidated the categories of goods ther employed), the administral:ve arrangements in respect of the establishment cf import performance during the two-year base period and the allocation of quotas for the duration of the seven year programme. The salient features of the new quota arrangements relevant to these proceedings, as outlined in a series of Bureat 2k detent eh of Customs Notices issued subsequent to the announcement of the aren assistance programme, may be briefly summarised as follows:- dee le Quotas applying to various categories of goods, includinc oe the category covering knitted coats, Jumpers, cardigans we and sweaters, would be issued on a calendar year basis . ee ee rt er tn ee er ee tee ere re eee + t- teat Pa ee ete tee nee a ' Py wees - ate 2. "Like" January a 6. with 12 months validity, commencing on 1 January of each year. In that catecory, inter alia, separate quotas would apply to complete and part garments. The size of a quota allocated to an importer who during the base period had imported "like" goods (that 1s goods falling within a category specified under the new arrangements) depended upon the number of "like" goods entered for home consumption by the importer during that period. Once established, the number of imports of "like" goods during the base period would remain for the séven year period commencing 1 January, 1982 and would be applied in each subsequent year to determine the importer's share of the total available quota in the category concerned. That number was known variously as the "base quota", "established import performance" or "base performance" or simply the ."base" and shall in these reasons be called the base. The method of establishing the base was dealt with in the Bureau of Customs Notice 80/176 (BCN 80/176). Specific directions were given in respect of importers of goods in the new category Knitted coats, jumpers etcetera, in the attachment to BCN 80/176. Applicants in respect of that category were required to establish "import performance" in respect of complete garments for the period 1 1980 - 30 June 1980. It seems that import at hemes nee 8 performance in respect of complete garments in the base pericd prior to Ll January 1980 was established on the basis of records maintained by the Quota Control section of the Department of Industry and Commerce. It was stated in BCN 80/176 that a separate schedule was required from each importer in respect of parts, detailing entries of part garments of "like" goods during the whole two-year base period; no explanation was given for that different requirement in respect of parts. The closing date for applications was stated as 28 November, 1980. In late November 1980 the applicant furnished the Bureau of Customs with a schedule in the form prescribed by BCN 80/176 setting out, in a column headed "imports claimed as base performance", the respective number of part garments in the form of fronts and backs entered for home consumption on stated dates during the base period. The aggregate number of part garments listed in the schedule amounted to approximately 500,000 units. The scheme outlined in the Bureau of Customs Notices was such that in the normal course the Bureau of Customs in Canberra would have used the information contained in both the application and the departmental records to establish the import performance for the two year —e tt tag ee a et ee te aot an eo ted 8. base period in respect of whole garments and part garments and some form of notification would then have been given to the applicant. However, in December 1980 clothing parts imported by the applicant arrived and were classified by Melbourne customs authorities as complete garments. Duty was assessed on that basis although they were of substantially the same nature 4s those imported in the base period, which had been classified as part garments.— The duty on the December shipment was paid under protest. The applicant's agent, on 14 January, 1981, wrote to the Quota Control Branch in Canberra pointing out the classification as complete garments of the applicant's imports in December 1980 which were of substantially the same nature as those previously classified as parts. The letter refered to the question of calculating base performance and stated that "all previous base performance calculations are now incorrect and that they should have been substantially higher. This would have enabled them to import more and therefore sustain a higher performance and quota". By a letter dated 2 Fepruary, 1981 Mr. Thompson, the Chief Inspector, Quota Control Branch cf the Department of Business and Consumer Affairs, Canberra, informed the applicant's agent that the matters concerning the classification of garment parts was being investigated. There was also an exchange of correspondence in the period nn nie pe ee ee ae He eae Se — _ _ Oe 4 January to early February 1981, between the applicant's agent and the Collector of Customs, Melbourne, regarding the basis for the classification of the shipment in December 1980. At a time when the correspondence between the applicant's agent and the Customs authorities in Melbourne a bent be chen and Canberra regarding the classification of the December 1980 shipment had not been concluded, the applicant was tt notifiéd, by letter dated 10 March, 1981 signed by an officer of the Bureau of Customs in Canberra, of its "base. performance", in: respect of whole garments in the category knitted coats, jumpers, cardigans etcetera. The letter of notification acknowledged the applicant's "application for amendment of the advised total approved base performance of 68,684 units" — apparently the figure notified to the applicant im a letter, dated 18 November, 1980, from the Inspector, Quota Control. The letter of 10 March, 1981 stated that "After examination of the documentation submitted your base performance has been determined as follows : ' seta oes at : Amendment : Nil ; July 1978 ~ June 1980 : Previously accepted = 68,684 : Approved Amendment = 2,448 . Total Approved Base = 71,132" eee eee ee bee ee en te bern . In determining the applicant's base (i.e. the "total approved base" in the letter of 10 March, 1981) the errors : department relied upon the records of gcods imported by the Te ee me en ent pee ee ee ~_ et re rte ee meee re eee were nenweeran ae a ee le ll ek ean aaa ell halt eee RIAL he ah tn mee es ae cee eee en te ee 10. applicant in the 'base period, supplemented by information supplied by the applicant. Those records contained, inter alia, the tarr1f£ classzficaticn which was applied to those goods at the time they were amported; the tariff classification applied to the garment pieces entered for home consumption by the applicant in that base period was that for "parts". The evidence cf Mr. Thompson 1s that in determining the base the department regarded itself as bound by the Glassification so recorded; further that, unless the Collector of Customs amended the records, there would be no departure -from .the original classificatioon in determining the base. According to the correspondence put in evidence and paragraph 15 of the Statement of Reasons furnished by the Acting Assistant Secretary, Quota Control, for the "decision" in relation to which this application 1s brought, on 2 June, 1981 a representative of the applicant's agent and Mr. Vlahos had a discussion with officers of the Quota Control Tariff and Revenue Branches of the Department of Business and Consumer Affairs. It appears from a letter dated 24 June, 1981 from F.M. McDonogh, signing for the Assistant Secretary, Tariff, to the applicant's agent and from the Statement of Reasons that the subject of these discussions was the classification of the parts imported in the December shipment. According to the Statement of Reasons, Mr. Vlahos and the representative of the applicant's agent in those lle discussions "were advised that certain goods (i.e. goods ad ate imported in the December shipment) could not be regarded as tn substantially complete and were identified and classified as : parts for garments"; further, that "Mr. Vlahos raised the aa question of refund of duty on past shipments entered using complete quota (sic) and that Mr- Vlahos was advised to contact the Collector of Customs in respect to this matter". tomate th eet AP The evidence is that the discussions took place with a view to bringing into question the classification by Melbourne customs authorities of the December shipment of i ' parts and there is "no evidence as to the terms of any discussion relating to the question of the determination of the "base" notified to the applicant on 10 Maren, 1981. The letter of 24 June, 1981 confirmed the content of the discussion on 2 June, 1981. It stated that the goods were correctly classified within item 60.05.171 (1.e. the item applying to part garments). It also stated that the Collector of Customs in Melbourne had been advised that that "4; was the correct classification of the garments an the December shipment. It did not appear from further correspondence or * the evidence of Mr. Vlahos that the applicant sought a refund of duty in the light of the views expressed by the Canberra ii iy | Customs authorities. Further exchanges in the period July 1981 to January 1982 occurred between the applicant's agent and the applicant's solicitors on the one hand and the Quota a eee ree a ee eee ee =-. _ - - - - aa ke ae ne ere 2 ee ee ee en ee oo ee ow etn re eenetene enema Cneete Rn re ee ee een - eee 12. Control branch of the Bureau of Customs, Canberra on the other. It appears that in July 1981 the applicant renewed the submission made in the letter of 14 January, 1981 regarding the determination of uts base but no amendment of the base has been made. It was common ground between the parties that the determination, dated 17 December, 198i, was made in exere1se of the' powers conferred under s. 273(1) of the Customs Act and, as required by that section, was made in an instrument in writing. 'There was also no dispute that ut was made in order to give effect to the new tariff quota arrangements referred to earlier. Mr. Ostrowski informed the Court that the decision described in the application was constituted by a determination made by the Minister's delegate on 17 December, 1981. The determination was headed "Ministerial Determination - Quota Goods" and referred to figures and descriptions contained in particular columns of a table appearing on the same page. When the appropriate transpositions from the table are made, together vith some minor adjustment to the arrangement of words, the operative part of the determination read as follows :- a . : 13. "In pursuance of Section 273 of the Customs Act 1901, I, the delegate of the Minister for the time being administering the Act, hereby determine that item 672 in Schedule 2 Part 11 to the Customs Tariff Act 1966 as proposed to be altered shall apply to goods that are : (i) knitted or crocheted coats, jumpers, cardigans, sweaters and the like and tube ~ tops, entered for home consumption by the Noe aay Peace Fee wah Hoth wind we dk ~ : owner specified in the schedule attached hereto and in respect of any such owner, in such quantity as not to exceed during the period commencing on the first day of January 1982. and ending on the first day of December 1982 the amount specified opposite that owner in the abovementioned schedule and to which goods the item 60.05.1500 applies; and (ii) entered for home consumption not earlier than the first day of January 1982 and not later than the thirty first of December 1982; in total not in excess of 9514092." anes tee ene een tn ork pat mee Mh eel el eames be eG ae tote! Nola nes at ee The determination included the fagure "8201" in a box headed "quota period", and the words "This Determination is not transferable" at the foot of the document. Opposite the description "owner" the words as per attached schedule" Fa Mie Meee ate tll Abc aty, eee TS aren enene we ep | me ee eee ee ee ee ee ee ee ee ene 14. appeared. Annexed to the determination submitted in evidence was a page which was part of a schedule containing, inter alla, the names of various firms or companies under the heading "owner name" and, opposite each name, figures subsumed under columns headed, inter alia, "Base", "Entitlement" and "Allocation". Apparently the complete schedule contained the names of all importers affected by the determination. Neither the column headed "Base" nor the column headed "Entitlement" in the schedule was referred to in the body of the 1 . _ determination. The determination only referred to two parts of the schedule, namely, the part setting out the name of the owner and the part under the column headed "Allocation" recording a figure opposite the name of the owner. In the column "Allocation" opposite the applicant's name there appeared the figure 30302.00. It was common ground that that figure represented 30,302 units of garments and did not represent an amount of money. — It 1S apparent on an analysis of the text of the determination that, in respect of the applicant, it determined that item 672 in Schedule 2 Part 1l of the Customs Tariff Act, "as proposed to be altered", would apply in respect of "knitted or crocheted coats, jumpers, cardigans, sweaters and the like and tube tops" (being gocds to which item 60.05.150 of the Schedule to the Customs Tariff Act as proposed to be altered would otherwise apply) "entered for home consumption" by the applicant in the period L January 1982 to 31 December 1982 in a . quantity not exceeding 30302 units. In short the respondent determined that item 672 (instead of item 60.05.1500) of the i Customs Tariff Act would apply to the first 30,302 goods (within - the description mentioned) entered for home consumption by the ' applicant in 1982. The rate of customs duty under the new arrangements in respect of goods to which item 672 applied was 50%, whereas the rate of customs duty where item 66.05.150 applied was 50% plus. $5-00 per garment; hence the effect of the determination was to. apply a lower rate of customs, duty to the first 30,302 knitted coats, jumpers, cardigans etcetera entered for home consumption by the applicant in the 12 month period commencing 1 January, 1982. In the language of the Bureau cof ' Customs Notices the number of goods of the category mentioned ir the determination which an importer could import during the specified period at a lower rate of duty was the importer's "quota". — In my opinion, it follows that, notwithstanding the recitation of other figures under the columns headed "Base" anc "Entitlement" in the schedule, the determination made on 17 ry re ere : December, 1981 did not "determine" the "Base" - nor did it : . determine the "Entitlement" of the applicant "for the seven year : period" commencing 1st January, 1982. Plainly the Se a ke a rte ee let determination was not a decision determining "the Applicant's tariff quotas for the seven year period commencing" 1 January, 16. 1982 and the application to this Court is incorrect in its "assertion to that effect; the determination was limited on its face to goods to be "entered for home consumption" during 1982. Further, even if the amended application were to be treated as if it had words inserted into it so that its thiré id line read the ""... applicant's base for the purpose of fixinc tar1lf£ quotas for the seven year period commencing lst January", im my opinion the determination could not be construed as "determining" the applicant's base. The determination certainly did not state that it "determined" that base; the figure in the column headed "base" in the schedule to the determination shoulc be read as merely recording (not determining) the figure whict was in fact used in the determination as the base. Further, as has been shown earlier, the applicant had been notified some nine months previously that its "base performance has beer determined" at the figure of 71,132. That notification, on 106 March, 1981, of the base performance figure having been "determined" is necessarily inconsistent with that base havine been "determined" by the decision made by the respondent on 1' December, 1981. A further reason for rejecting the construction of the determination, made under s. 273 of the Customs Act, as havin: "determined" the applicant's base 1s that, in my opinion, tha: section does not contemplate or authorize a determination by thi Minister or his delegate, cf an importer's "base" in i: . L7. particular period for the purpose of using that base as a factor in allocating a quota in respect of a certain category of goods to that importer. Section 273 of the Custems Act provides as follows :- tev mts "273.(1) The Minister may determine, by instrument in writing, that, subject to the conditions, if any; specified in the determination, an item, or a proposed item, of a Customs Tariff that is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law shall apply, or *shall be deemed to have applied, to the particular goods specified in the determination. ' (2) The Minister may make a determination under the last preceding sub-section for the purposes of an item, or a proposed item, of a Hg Customs Tariff whether or not he has made a by-law for the purposes of that item or proposed item. eb - (3) Where, under this section, the Minister determines that an item, or a proposed item, of a Customs Tariff shall apply, or shall be deemed to have applied, to goods, that item or proposed item, shall, subject to this Part and to the conditions, if any, specified in the determination, apply, or be deemed to have applied, to those goods as 12 those goods were specified in a by~law made for the purposes of that item or proposed item and in force - on the day on which those gocds are or were entered =n7 for home consumption. wee neha te see et The determination which the Minister may make under s. a a ery 273 of the Act is explicitly spelt out and the determination of 17 December, 1981 conforms to the conditicns contained in s. see Pete me ee oe 8 ee ewe te 273. In my opinion s. 273 cdnnot be construed in any sense as 4q i empowering the Minister to determine the applicant's "base". Nr errno e - eee e+ et re ee ee e+ aoe oe 18. The fundamental difficulty in the way of the application is that the applicant really seeks to have set aside a decision that the applicant's "base performance" in the two year period 1978-80 was 71,132 units; that was made clear in two ways. Firstly, the application itself refers, im paragraph (a), to 71,132 units. Secondly, in his final address, Mr. Ostrowski, after having time to consider whether the application required amendment, said that he would not seek leave to amend the application saying "I have thought about 1t and think the end result is that I do not want to make any amendments. Whichever way I try to clarify things, the end result seems to me thax they seem to finish up, on second thoughts, not being clearer at all". He also referred to "the base performance which 1s what is under the real attack, the basic issue". However, the decision as to the applicant's base performance in its final amended form was made on 10 March, 1981, that is to say, nine months before the determination which the applicant seeks to review as constituting the-decision and Mr. Ostrowski said in his' opening address that the decision of 10 March, 1981 was not a determination challenged by the present application. In short, the amended application before the Court, both in its written form and as explained in oral submissions, does not seek to review the decision which the applicant in reality wishes to have set aside (i.e. the decision that the applicant's base was 71,132 units) and the determination, made on 17 December, 1981, which it, does seek to have set aside did not 19. determine that base performance figure. Accordingly, the application must be dismissed. However, as the: matter has been argued at some length I shall express very briefly my opinion as to other arguments advanced in support of the attack on the decision allocating a base to the applicant. Mr. Ostrowski in final address said that the applicant-did not rely upon paragraphs 2 and 5 (and only relied upon ground 6 as a "catch-all") of what were described as the grounds of the application but which were in fact the paragraphs setting out the reasons that the applicant was "aggrieved by the decision". THe ""grounds" so described relied upon by the applicant were in the following terms :- ' "l. The procedures that were required by law to be observed in connection with the making of the decision were not observed. 3. The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was went nee wee ee eee purported to be made. 4, The decision anvolved an error of law, whether or not the error appears on the Y ne do tree record of the decision." NT an ie eee ates re - . . - 6 cee ee ee -— ee ee ee nee etme eee ee sie Boe 6 De eae _ 20. As to ground 1, which mirrors s. 5(1)(b) of the Judicial Review Act, Mr. Ostrowski submitted that procedures required by law to be observed in connection with the making of the decision had not been. observed. He conceded that he could not point to any failure to observe a procedure required by statute and sought to rely upon the procedures which he said were required by case law. Reference was made to the decisions of the Administrative Appeals Tribunal in Re Gissing v Collector of Customs (1977) 1 A.L.D. 144 and in Re Renault Wholesale Pty. Ltd. v Collector of Customs (No. 3) (1978) 2 A.L.D. 111. It Fh was submitted that these cases illustrated the process o reasoning which the Minister or his delegate is required tc employ in determining the tariff classification appropriate tec particular goods. Im my opinion there is no substance in that submission. No authority was cited for the proposition that che words "procedures that were required by law", appearing in s. 5(1)(b) of the Judicial Review Act, extend beyond procedures required by statute or suhordinate legislation to include the processes of legal reasoning extant in legal decisions. rT accept the submission of Mr. Moshinsky, of counsel, who appeared for the respondent, that those words do not so extend and that it has not been established that there was any failure tc observe procedures required by law. Ground 3, which, it was explained, was based upon ¢ contention that the respondent in reaching the decision hac failed to take into account a relevant 'Consideration, was ees te en er ee ecere -- ee -- - - - oa ee ee wren ee —-- 1 mo al. closely related to ground 4, namely, that "the decision involved an error of law". As I understood it Mr. Ostrowski's submission in relation to ground 3 was that, in calculating the applicant's base, Customs authorities had acted upon the records it kept, which recorded all entries for home consumption by the applicant of garment pieces as parts, and did not consider whether those garment pieces had been properly classified in those entries. ; He contended that this application of the records of entry was "mechanical" and amounted to a failure to take into account a relevant consideration. Whilst the evidence of Mr. Thompson showed that importers' bases were calculated on the- basis of recorded entries, without considering whether the garment pieces ' had been properly classified as parts in those recorded entries, that is not sufficient to establish that a relevant consideration was not taken into account. It would be necessary for the applicant to establish that the customs authorities were bound to consider whether the goods referred to in those records had been properly classified. It should be noted that the calculation of a base in respect of importers was purely an administrative procedure undertaken as a factor in the allocation of a quota as foreshadowed in the proposed Fearne n sweeney eet ee oe em ge eee arrangements. In undertaking that task the customs authorities ™ were not under any duty to observe statutory criteria and it was largely a matter for them to determine which matters they regarded as relevant in fixing bases (cf. Sean Investments Ptv. Ltd. v Mackellar (1981) 38 A.L.R. 363 at 375). In the event the Sate hee eevee A mene basis chosen for the calculation of the base was set out in the ¢4 - ~~ ee a cnt anne nee | we ee ee 22. Bureau of Customs notices which made it clear that reliance would be placed upon the records cf entries in determining the base for individual importers. In my opinion, there is no implication made in them that the classification in those records would be reconsidered; I accept Mr. Moshinsky's submission as to the meaning of the words "if entered correctly" appearing in paragraph 11 of BCN 80/168. Ground 4 similarly assumes that, in establishing the pase, the customs authorities were bound to consider the question of whether 'the garments had been correctly classified in the earlier records. For the reasons given that submission is also rejected. Even if I am wrong in regard to the obligation of customs authorities to reconsider the original classification of 'the goods, I.do not accept Mr. Ostrowksi's submission that the original classifications involved an error of law in that those classifications were contrary to the "Rules of tf Interpretation of the First Schedule" appearing in Part 1 of vt. First Schedule to the Customs Tariff Act 1966-73. The description of goods by vreference to which the applicant's imports during the base period were classified was contained in a Ministerial by-law made under Part XVl of the Customs Act. Mr. Ostrowski submitted that the by-law was, as a matter of.law, "a part of the Schedule to the Customs Tariff A ee ly ee ey et ee RR eee ee Eo ete 23. Act". He conceded that he was unable to point to any section of the statute which provided that the Minister's by-law was to be part of the Schedule to the Customs Tariff Act and then said "There is no such section. Notwithstanding that, my submission is that such a by-law or determination has for all purposes - not virtually, has for all purposes the effect of being in the Schedule to the Customs Tariff Act ..- that determination or by-law has the effect of being in the Schedule to the Customs Tariff Act" (Transcript page 137}. Mr. Ostrowski sought to support that submission by reference to the decision of Ellicott J. in Toohey's case (1981) 36 A.L.R. 64 and of the 'Full Court on appeal from that decision ((1982) 42 A.L.R. 260) but in my Opinion, the judgments' in those cases do not support the submission. On that matter Mr. Moshinsky's submission was that those rules on their face only apply to the interpretation of the First Schedule to the Customs Tariff Act. He pointed out that in this case the respondent was not interpreting words in that First Schedule because the relevant category of goods was described in a Ministerial by-law and not in the Schedule to the Customs Tariff Act. I accept that submission. D In any event, even if, contrary to my opinion, those rules did apply to the description of goods in the Ministerial by-law, in my cpinion as a matter of construction of that description, the garment parts imported by the applicant during the base period were correctly classified as "parts". We ne een ee a * tne ea Ree a a nan Onna _. _ 24, Mr. Moshinsky finally submitted that, even if all hzs other submissions failed, the Court should exercise its discretion under s. 16 of the Judicial Review Act against making either of the orders sought by the applicant having regard to all the circumstances of the case, including the fact that the determination was limited in its operation to goods to be entered for home consumption in 1982. There is considerable weight in that submission but it is not necessary to express any concluded opinion on it. . The application is dismissed with costs. ad Doo, . twenty -thvee (23) . Kealy arn 22. Decsber ES poo eee a a ee A erent eee = eee ee ee en - - = we ee ee eee