CATCHWORDS ADMINISTRATIVE. LAW - Judicial Review - Application for order of review - Whether application lodged out of time - Meaning of "document setting out the terms of the decision" - Application for extension of time - Factors relevant to exercise of discretion - Explanation of delay - Public considerations - Alternative remedy available. Administrative Decisions (Judicial Review) Act 1977 (Cth), s.1l Customs Tariff (Anti-Dumping) Act 1975 (Cth) Industries Assistance Commission Act 1973 (Cth), s.5 TREDEX AUSTRALIA PTY. LTD. v. JOHN NORMAN BUTTON (who is sued in his capacity as Minister of State for Industry, Technology and Commerce) No. ACT G 28 of 1986 Neaves J. 11 September 1986 Canberra Re OFIYED 12 SEP 1986 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTAY IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 28 of 1986 DISTRICT REGISTRY wee ewevw GENERAL DIVISION BETWEEN : TREDEX AUSTRALIA PTY. LTD. Applicant AND: JOHN NORMAN BUTTON (who is sued in his capacity as Minister of State for Industry, Technology and Commerce) Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 11 September 1986 WHERE MADE : Canberra THE COURT DECLARES THAT the application lodged in a Registry of this Court on 29 May 1986 by Tredex Australia Pty. Ltd., purporting to be an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review in respect of a decision of John Norman Button, the Minister of State for Industry, Technology and Commerce, declaring that s.8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) applies to certain goods specified in a notice dated 8 January 1986 and published in the Commonwealth of Australia Gazette dated 22 January 1986, was not lodged within the time prescribed by s.1ll of the Administrative Decisions (Judicial Review) Act 1977 (Cth). THE COURT ORDERS THAT - 1. The time within which the said application might be lodged be extended up to and including 29 May 1986. 2. Tredex Australia Pty. Ltd. pay the costs of the said John Norman Button of the objection to the competency of the application and of the motion for extension of time. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 28 of 1986 DISTRICT REGISTRY GENERAL DIVISION BETWEEN : TREDEX AUSTRALIA PTY. LTD. Applicant AND: JOHN NORMAN BUTTON (who is sued in his capacity as Minister of State for Industry, Technology and Commerce) Respondent CORAM Neaves J. DATE: 11 September 1986 REASONS FOR JUDGMENT The Customs Tariff (Anti-Dumping) Act 1975 (Cth) ("the Anti-Dumping Act") by sub-s.8(3) provides that there shall be charged, collected and paid on goods to which s.8 of the Act applies a special duty of Customs, to be known as dumping duty. Sub-section 8(1) provides: "(1) Subject to section 13, where the Minister is satisfied, as to any goods that have been exported to Australia, that - (a) the amount of the export price of the goods is less than the amount of the normal value of those goods; and (b) by reason thereof - (i) material injury to an Australian industry has been or is being caused or is threatened or the 2. establishment of an Australian industry has been or may be materially hindered; or (1i) 1m a case where security has been taken under section 42 of the Customs Act in respect of any duty that may become payable on the goods under this section - material injury to an Australian industry would or might have been caused if the security had not been taken, the Minister may, by notice published in the Gazette, declare that this section applies to those goods." Section 13 deals with retrospective notices andis not relevant for present purposes. Sections 4A and 5 respectively contain provisions by the application of which the export price of any goods exported to Australia and the normal value of such goods may be ascertained or determined. Section 5A specifies matters to which the Minister may have regard in determining, for the purposes of s.8, whether material injury to an Australian industry has been or is being caused or is threatened or would or might have been caused, or whether the establishment of an Australian industry has been materially hindered, by reason of any circumstances in relation to the exportation of goods to Australia from another country (see sub-ss.(1) and (3)). By a notice dated 8 January 1986 John Norman Button, the Minister of State for Industry, Technology and Commerce ("the respondent"), pursuant to sub-s.8(1) of the Anti-Dumping Act, declared that s.8 applied to the following goods - » uncoated woodfree printing and writing papers (i.e. containing not more than 10 per cent mechanical pulp), in reels and sheets classified within par.48.01.91 of Schedule 3 of the Customs Tariff Act 1982 (Cth); and » uncoated woodfree printing and writing Papers cut to size and shape, classified within sub-item 48.15.9 of the said schedule, exported from South Africa prior to the date of publication of the notice and entered for home consumption on or after the date of such publication or within the period of four months last preceding the date of such publication. The notice recited that the respondent was satisfied in respect of the said goods that: "(a) the amount of the export price of the goods is less than the amount of the normal value of those goods; (b) by reason thereof - (i) material injury to an Australian industry has been or is being caused or is threatened, or the establishment of an Australian industry has been or may be materially hindered; or (ii) material injury to an Australian industry would or might have been caused if security had not been taken under section 42 of the Customs Act 1901 in respect of any duty that may become payable on those goods." The notice was published in the Commonwealth of Australia Gazette ("the Gazette") on 22 January 1986. 4. On 29 May 1986 Tredex Australia Pty. Ltd. ("the applicant") lodged with a Registry of this Court an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of the decision evidenced by the notice referred to above. The respondent has objected ta the matter proceeding on the ground that the application was lodged out of time. The applicant asserts that the application was lodged within the time allowed by sub-s.11(3) of the Judicial Review Act but, against the possibility of the Court making a finding adverse to it on that issue, has moved on notice to extend the time within which the application might be lodged up to and including 29 May 1986. That motion is opposed by the respondent. In order to determine whether the application was lodged out of time, it is necessary to state some further facts. On 22 January 1986 an officer of the Australian Customs Service, Mr J.F. McDermott, telephoned Mr R.C. Fisher of Trade Consultants Pty. Limited, who was acting in the matter for the applicant, and informed him of the publication in the Gazette of the notice dated 8 January 1986. Mr Fisher informed Mr McDermott that he expected that the applicant would initiate legal proceedings "in respect 5. of the decision of the respondent and the liability to customs duty and dumping duty which would result from the declaration". On 30 January 1986 an Assistant Comptroller-General of Customs wrote to the applicant enclosing a copy of the Gazette containing the notice. The letter also informed the applicant that - "A copy of Dumping Report No.115 will be forwarded to you following its publication." A copy of the report was, in fact, obtained by Mr Fisher from the Australian Customs Service on 17 February 1986. On 19 March 1986 the respondent received from Mr Fisher a letter dated 12 March 1986. The letter said that the applicant had studied Dumping Report No.115 in detail and, as it maintained that the relevant decision could not possibly have been based on a proper appraisal of the facts, it requested the respondent to revoke the notice. The letter went on to request, in the event that the notice was not revoked, that two factual issues be referred to the Industries Assistance Commission for inquiry and report pursuant to sub-s.15(3) of the Anti-Dumping Act. The factual issues were said to relate, first, to the method of ascertainment of the normal value of the goods in question and, secondly, to the finding concerning material injury to an Australian industry. Sub-section 15(3) of the Anti-Dumping Act provides: "(3) Where ~ (a) a person engaged in, or concerned in the establishment of, an Australian industry or engaged, or proposing to engage, in the business of importing into Australia goods of a particular kind requests the Minister to revoke a notice in force under sub-section B(1), 8(2), 9(1), 9(2), 10¢(1), 10(2), %11(1) or 11(2), being a notice relating to goods of a kind with which persons engaged in that industry are concerned or relating to goods of the kind imported, or proposed to be imported, by the person, as the case may be; and (b) the Minister informs the person, in writing, that he does not propose to accede to the request, the person may, not later than 30 days after being so informed, request the Minister, in writing, to refer to the Commission for inquiry and report the question as to the existence of a fact or facts specified in the request, being a fact or facts as to the existence of which, if the notice were not in force, the Minister would be required to be satisfied before causing the notice to be published." The reference to the Commission is a reference to the Industries Assistance Commission established by the Industries Assistance Commission Act 1973 (Cth). Where the Minister receives a request to refera question to the Commission for inquiry and report, he is required to refer the question to the Commission unless that question has been referred to the Commission for inquiry and report within the period of two years immediately preceding the request (sub-s.15(4)). Neither the Anti~Dumping Act nor the Industries Assistance Commission Act 1973 expressly 7. provides for what 1s to occur once the Commission has made its report. Presumably, it is contemplated that the Minister will consider the report and determine whether to act upon any findings or recommendations contained therein. There appears, however, to be no obligation upon him to do SO. On or about 24 March 1986, Mr Fisher had a conversation with Mr J.G. McMahon of Messrs J.G. McMahon & Co., Barristers and Solicitors, in which Mr Fisher foreshadowed that the applicant would probably wish to initiate legal proceedings to challenge the legality of the declaration made by the respondent. During the ensuing week Mr McMahon was instructed to examine the avenues of redress available to the applicant. Mr McMahon, in an affidavit sworn on 11 July 1986, has asserted that the complexity and extent of the technical, commercial and manufacturing information which it was necessary to canvass and collate in order to complete his instructions had the result that delays were experienced in communicating with Sappi Fine Paper Pty. Ltd. in South Africa. That company was, he said, necessarily the source of such technical, commercial and manufacturing information as it was the manufacturer and exporter of the paper products the subject of the notice dated 8 January 1986. Mr McMahon further said that it was not until 18 April 1986 that he received full instructions, that he then prepared a brief to advise which he delivered to counsel, and that a conference was held with counsel on 22 April 1986. Mr McMahon wrote to the respondent on the next day stating that his firm was acting for Sappi Ltd. and requesting to be informed of the basis upon which the declaration under sub-s.8(1) of the Anti-Dumping Act had been made. In particular, he asked whether the declaration was "based upon the Australian Customs Service Dumping Report No.115 December 1985 and the ACS Reasoning and Findings therein". The reference in the letter to Sappi Ltd. may be taken to be a reference to Sappi Fine Paper Pty. Ltd. By letter dated 2 May 1986 the respondent informed Messrs J.G. McMahon & Co. that the declaration was based on the findings outlined in that report. After receiving that letter on 5 May 1986, Mr McMahon briefed counsel to advise further and to draft and - settle the application for an order of review under the Judicial Review Act. That application, as has already been mentioned, was lodged with the Court on 29 May 1986. In the meantime, by letter dated 7 May 1986, the respondent replied to Mr Fisher's letter dated 12 March 1986 setting out why the declaration evidenced by the notice dated 8 January 1986 had been necessary and discussing in some detail the steps taken in the course of the investigation that preceded its making. In particular, reference was made to the steps taken to ascertain the normal value of the goods exported and some of the statements made on behalf of the applicant concerning the finding of material injury to the relevant Australian industry were disputed. The letter further said that the respondent declined to revoke the notice and that, if the applicant still desired that the matter be referred to the Industries Assistance Commission, a request in the prescribed form should he made. The reference to the prescribed form is probably a reference to the requirement of sub-s.15(3A) of the Anti-Dumping Act that a request under par.15(3)(a) is to be in writing and verified by statutory declaration or witnessed by a notary public exercising his function outside the Commonwealth and the Territories. By letter dated 15 May 1986 the applicant requested that there be a reference to the Industries Assistance Commission of "the question as to the existence of the fact or facts specified in the request, being a fact or facts as to the existence of which, if the notice were not in force, the Minister would be required to be satisfied before causing the notice to be published". One may suppose, though it is not stated in the letter, that the reference to the fact or facts specified in the request was a reference to the factual issues identified in Mr Fisher's letter dated 12 March 1986. In response toa letter dated 30 May 1986 from an Assistant Comptroller-General of Customs stating that there was insufficient material to refer the matter to the 10. Industries Assistance Commission, the applicant addressed a letter dated 12 June 1986 to the respondent the purpose of which was to clarify the issues which it wished to have referred to that body. The letter reads - "Subsequent to our letter to you dated 15th May, 1986, on the above subject we have been advised by our consultant, Ronald C. Fisher, that the Australian Customs Service requires our company to identify particular 'fact or facts' that the IAC should examine. In that context we would claim that you have misinterpreted and misapplied the provisions of Section 5 of the Customs Tariff (Anti-Dumping) Act 1975 in that normal value was calculated pursuant to the provisions of Sub-Section (1) of Section 5 of the Act instead of pursuant to Sub-Sections (2) and (2A) of Section 5. Further, that the approach adopted in using domestic sales of 'Baseline' product to assess normal value for 'Combi'' product is in error as they are not produced in similar weights as stated in the report and, in any case, weight is not an appropriate guide to like product nor is' the selling method any guide to like product. The major considerations in determining like product involve ananalysis of all physical properties with tear strength being of particular importance. Our company would also claim that there has been a misapplication of the concept of 'material injury' in that due weight has not been given to Particular market trends away from woodfree papers, a trend assisted by sales of part mechanical papers by APPM into its own traditional woodfree market area. That trend was exacerbated by the entry of a local competitor, APM, into that market place and, in any event, APPM have been manufacturing at record levels of production and at record levels of profit. Due weight has also not been given to imports and pricing of papers imported from countries other than South Africa. We trust the above will rectify any deficiencies in our original request." il. The material before the Court is inconclusive as to whether the matter has been referred to the Industries Assistance Commission. If it has been referred, the terms of the reference are not in evidence. With that background, the question whether the application to the Court under the Judicial Review Act was lodged within or outside the time prescribed may be addressed. An application under the Act in relation toa decision the terms of which were recorded in writing and set out in a document that was furnished to the party applying to the Court is required to be lodged with a Registry of the Court within the period prescribed by sub-s.11(3) of the Act or within such further time as the Court allows (sub-s.11(1)). The period prescribed is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after the day ascertained by reference to the provisions of par. (a) or (b) of sub-s.11(3). Paragraph (a) of that sub-section applies if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision. It is common ground that that paragraph is not applicable to the present case. Paragraph (b) of sub-s.11(3), which has' three sub-paragraphs, applies when the case does not fall within 12. par.(a). Sub~paragraph (b)(ii) applies if the applicant, in accordance with sub-s.13(1) of the Act requests' the person who made the decision to furnish a statement as mentioned in that sub-section. Again, it is common ground that no request was made in accordance with that sub-section, so that sub-par.(b)(1i) has no application to the present case. Sub-paragraph (b)(i) applies if a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision is furnished to the applicant otherwise than in accordance with a request under sub-s.13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant. It is accepted by the parties that the present case is one in which a statement in writing of the kind specified in that sub-paragraph was furnished to the applicant otherwise than in accordance with sub-s.13(1) of the Act, it being conceded that no request was made by the applicant pursuant to that sub-section. It may also be accepted that the statement was furnished to the applicant on 5 May 1986, being the date of the receipt by it of the respondent''s letter dated 2 May 1986 acknowledging that the notice dated 8 January 1986 was based on the findings outlined in Australian Customs Service Dumping Report No.115. The question that remains is whether the statement was furnished to the applicant not later than the 13. twenty-eighth day after the day on which a document setting out the terms of the decision was furnished to the applicant. If it was, sub-par.(b)(i) applies and the period within which the application under the Judicial Review Act might be lodged ended on the twenty-eighth day after the day on which the statement was so furnished, viz. 5 May 1986, and the application was lodged within the prescribed time. If it was not, the case falls within sub-par.(b)(iii) of sub-s.11(3) and the period within which the application might be lodged ended on the twenty-eighth day after the day on which a document setting out the terms of the decision was furnished to the applicant. The critical question, then, is to identify the day on which a document setting out the terms of the decision was furnished to the applicant. The applicant contends that that day did not occur before 5 May 1986, the respondent that it was, at the latest, the day upon which the letter dated 30 January 1986 addressed to the applicant and enclosing a copy of the Gazette containing the notice dated dated 8 January 1986 would, in the ordinary course of post, have been received by the applicant. For the applicant it was submitted that the references in s.1l to a document setting out the terms of the decision are to be read, not as references to a document which does no more than set out the decision itself, but as references to a document which, in addition, sets out sufficient material to enable the person affected by the 14. decision to appreciate the basis upon which it was made. Indeed, the submission went so far as to assert that it is only if the document sets out the reasons for the decision that it can properly be described as a document "setting out the terms of the decision". In my opinion, the submission is misconceived and cannot be accepted. The statute, in s.11, draws a clear distinction between the making of a decision and the recording of its terms on the one hand and the furnishing of reasons for the decision on the other. The section clearly contemplates that in some cases the document recording the terms of the decision will also record the reasons for it but nothing could be plainer than that the section also contemplates there will be other cases in which that will not be so. There is, in my view, no warrant for reading s.11 in the manner for which the applicant contends. To do so would be to re-write the provision. Iam left in no doubt that the notice which was published in the Gazette on 22 January 1986 is properly described as a document setting out the terms of the decision which the respondent made. It identifies with particularity the goods to which s.8 is declared to apply, it refers to the respondent's satisfaction as to the matters of which he is required to be satisfied before making such a declaration in relation to those goods and it clearly states the decision to which the respondent had come. Nothing more was necessary to be stated in order to set out the terms of the decision. 15. It follows that the prescribed time within which the application might be lodged expired 28 days after the date upon which that notice was furnished to the applicant. That occurred, at the latest, when the letter dated 30 January 1986 was received by the applicant so that the application was lodged approximately three months after the prescribed time had expired. I turn, then, to the question whether the time for lodging the application should be extended. The applicant, accepting that it was for it to satisfy the Court that an extension of the requisite period should be granted, submitted that the Court should be so satisfied. It was contended on its behalf that - (a) the application for an order of review has substantial merit; (b) the amount of dumping duty payable by the applicant pursuant to the decision sought to be reviewed is large; (c) to grant the extension would not result in any prejudice to the respondent, he having been aware at all times that the decision was not accepted by the applicant; and (d) there are no considerations of public interest that tell against the granting of the extension. Counsel for the respondent submitted that the applicant had not given an explanation for the delay which the Court should regard as acceptable. He pointed to the absence from the affidavits filed on behalf of the applicant 16. of any suggestion that the applicant was unaware of its legal rights, referring in this regard to the initial response which Mr Fisher gave upon being informed on 22 January 1986 of the publication of the notice under sub-s.8(1) of the Anti-Dumping Act that he expected that the applicant would initiate legal proceedings in respect of the decision. It was said that, notwithstanding this response, no immediate action was taken either to request a statement of reasons under s.13 of the Judicial Review Act or to seek an order of review under s.5 thereof. It was not until 12 March 1986 that any step was taken, that step being to request the respondent to revoke the notice of 8 January 1986 and, if he were not prepared to do so, to refer the matter for inquiry and report to the Industries Assistance Commission. Counsel submitted that no explanation had been offered for the delay between 22 January 1986 and the first consultation by Mr Fisher on the applicant's behalf with the applicant's solicitor, a consultation which took place during the week commencing 24 March 1986. It was not suggested that the respondent had been prejudiced by the delay but it was submitted that there were, in fact, public considerations relevant to the issue. Reliance was placed on the circumstance that a declaration under sub~-s.8(1) of the Anti-Dumping Act may only be made if the respondent is satisfied that an industry within Australia is being, or is likely to be, adversely affected by the exportation to Australia of the goods the subject of the declaration. The purpose of making the declaration, so 17. it was submitted, is to prevent or reduce such adverse effect and the Court, in exercising its discretion whether to grant an extension of time, should have regard to the position of those whose interests the declaration was designed to protect. It was also submitted on behalf of the respondent that the Court should exercise its discretion adversely to the applicant because a more appropriate way for the real Issues between the parties to be resolved would be for the Matter to proceed in accordance with the request already made by the applicant pursuant to sub-s.15(3) of the Anti-Dumping Act that the factual issues concerning the normal value of the goods and the effect on Australian industry of their exportation to Australia be referred for inquiry and report to the Industries Assistance Commission. That an inquiry into those factual issues by the Commission was amore appropriate course was highlighted, so it was submitted, by the course which counsel for the applicant had foreshadowed of seeking to adduce before the Court on the hearing of the application under the Judicial Review Act expert scientific evidence in relation to the determination of the normal value of the goods in question and evidence designed to negative any material injury to an Australian industry by the exportation to Australia of those goods. There is some force in the submission put by counsel for the respondent that the delay in lodging the application under the Judicial Review Act has not been 18. sufficiently explained. The evidence adduced by the applicant in this regard is not, it must be said, entirely satisfactory. It is, for the most part, confined to a timetable stating when particular steps were taken, leaving it to inference rather than explicit statement supported by reasons why those steps were not taken at an earlier point of time. There appears to have been some delay in the applicant obtaining a copy of Australian Customs Service Dumping Report No.115: it was not obtained, as the evidence shows, until 17 February 1986. However, on the evidence, that delay cannot be attributed to the applicant and, in view of the reference to that report in the letter dated 30 January 1986 from the Australian Customs Service to the applicant, it cannot, I think, be regarded as unreasonable for the applicant to have awaited receipt of a copy of the report before considering what, if any, action it should take. There is little evidence before the Court as to the action that was taken upon receipt of the report beyond the general statement in Mr Fisher's affidavit that the applicant studied it in detail. The report is in evidence and, although it is not voluminous, it would have required some time to study. Some three weeks elapsed before Mr Fisher wrote on the applicant's behalf on 12 March 1986 the letter, which was received by the respondent a week later, requesting that the notice dated 8 January 1986 be revoked 19. and, if that were not done, that the matter be referred to the Industries Assistance Commission. The request that the respondent reconsider the matter was an appropriate step for the applicant to take and, in my view, it was justified in withholding the institution of legal proceedings until the respondent's decision was known. It is to be noted that it was not until 7 May 1986 that the respondent wrote to the applicant informing it that he was not prepared to revoke the notice. The institution of legal proceedings in the meantime could, I think, reasonably have been regarded by the applicant as being likely to prejudice the outcome of the request for revocation of the notice. Towards the end of March 1986 the applicant sought legal advice. Why it did not do so earlier is unexplained and its delay in doing so is somewhat surprising in the light of the fact that Mr Fisher, in his conversation with Mr McDermott on 22 January 1986, foreshadowed the likelihood of the applicant instituting legal proceedings. The applicant's solicitor has sworn that it was not until 18 April 1986 that he received full instructions. He asserts that this was due to the necessity to obtain further information, including information from Sappi Fine Paper Pty. Ltd. in South Africa, although the precise nature of the information sought is not disclosed. One is, therefore, 20. left to speculate as to its significance in relation to the step of instituting proceedings under the Judicial Review Act. Once full instructions were received, however, the solicitor appears to have acted promptly in obtaining counsel's advice. Immediately upon obtaining advice he wrote to the respondent requesting confirmation of the assumption, which Mr Fisher appears to have earlier made, that the declaration that s.8 of the Anti-Dumping Act applied to the goods in question had been based upon the matters set out in Australian Customs Service Dumping Report No.115. Confirmation to that effect was received on 5 May 1986 and a period of some 24 days then elapsed before the application under the Judicial Review Act was lodged. The inference from the material before the Court is that this delay was attributable either to delay in re-submitting the Matter to counsel or in counsel's consideration of the matter or a combination of both. Taking all these matters into account, Iam of opinion that, although the evidence is not entirely satisfactory and the case is a borderline one, the applicant has, on balance, disclosed an adequate explanation of the delay. I have also taken into account the submission on behalf of the respondent that, in considering whether to extend the time within which the application under the 21. Judicial Review Act might be lodged, regard should be had to the 1nterests of those adversely affected by the exportation to Australia of the goods in question. However, having regard to the fact that the declaration under sub-s.8(1) of the Anti-Dumping Act was to apply only to goods of the specific kind exported from South Africa prior to the date of publication of the notice, viz. 22 January 1986, I do not regard this consideration as being sufficient to deny the applicant an extension of time if it be otherwise justified. A matter of greater concern is that the applicant has sought to avail itself of an alternative means of redress, a means which will involve a review on the merits ef the basic factual issues supporting the declaration under sub-s.8(1) of the Anti-Dumping Act. This 1s clearly a relevant matter to be taken into account in the exercise of the Court's discretion whether to grant an extension of time. However, having regard to the circumstance that the evidence before the Court does not clearly establish that the matter has yet been referred to the Industries Assistance Commission notwithstanding that the request was made in Mr Fisher's letter to the respondent dated 12 March 1986 and renewed in the applicant's letters dated 15 May 1986 and 12 June 1986, and to the further circumstance that the Industries Assistance Commission has power only to inquire and report, there being no obligation upon the respondent to act upon its report, I do not think it appropriate to exercise my discretion adversely to the applicant on this ground. It may remain a question relevant 22. to the Court's discretion to the granting of relief upon the substantive application under the Judicial Review Act depending upon the factual situation as 1t then exists. In the result, I am of opinion that an extension of time should be granted up to and including 29 May 1986, the date upon which the application under the Judicial Review Act was lodged and I so order. The applicant must pay the costs of the proceedings concerning the objection to the competency of the application and of the motion for extension of time. I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. KAY Associate Dated: 11 September 1986 Mr F.J. Purnell J.G. McMahon & Co. Counsel for the applicant Solicitors for the applicant ete Counsel for the respondents : Mr C.M. Erskine Solicitor for the respondents Australian Government Solicitor Date of hearing 25 July 1986