J.R. Exports Pty Ltd v. Australian Trade Commission [1987] FCA 114
Federal Court of Australia
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CATCHWORDS
ADMINISTRATIVE LAW - export incentives - discretion to extend
time for application for export grant - decision to refuse
extension - act amended to remove discretion - application for
reconsideration of decision - whether old or new law to be
applied in reconsideration.
STATUTES - interpretation - whether an "accrued right" within s.8
Acts Interpretation Act 1901 vested in appellant - whether
"contrary intention" appearing in amending legislation.
Export Market Development Grants Act 1974, $s.13(2A), 40A
Export Market Development Grants Amendment Act 1985
Australian Trade Commission (Transitional Provisions and
Consequential Amendments) Act 1985, s.44
Acts Interpretation Act 1901, s.8
Mekol Ptv. Ltd. v. Baulkham Hills Shire Council £19711 2
N.S.W.L.R. 54
Colonial Sugar Refining Co. Ltd. v. Irving C1905] A.C. 369
O''Connor v. The Argus and Australasian Ltd. €1957] V.R. 374
Director of Public Works v. Ho Po Sang £1961] A.C. 901
Continental Liquers Pty. Ltd. v. G.F. Heublein & Bro. Inc.
(1960) 103 C.L.R. 422
Hamilton Gell v. White €1922] 2 K.B. 222
Free Lanka Insurance Co. Ltd. v. Ranasinghe [€1964] A.C. 541
Robertson v. City of Nunawading [1973] V.R. 819
The Australian Coal and Shale Employees Federation v. Aberfield
Coal Mining Co. Ltd. (1942) 66 C.L.R. 161
J.R. EXPORTS PTY. LIMITED v. AUSTRALIAN TRADE COMMISSION
NO. G 396 OF 1986
CORAM: FOX, SHEPPARD & BEAUMONT JJ.
19 MARCH 1987
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No.G 396 of 1986
~ wee wa
GENERAL DIVISION
ON APPEAL from the South
Australian division of the
Administrative Appeals Tribunal
constituted by Deputy President
R.A. Layton
BETWEEN:
J.R. EXPORTS PTY. LIMITED
Appellant
AND:
AUSTRALIAN TRADE COMMISSION
Respondent
MINUTE OF ORDER
JUDGES MAKING ORDER: Fox, Sheppard & Beaumont JJ.
DATE OF ORDER: 19 March 1987
WHERE MADE: Sydney.
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
Note: Settlement and entry or orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
)
)
NEW SOUTH WALES DISTRICT REGISTRY } No.G 396 of 1986
)
y
GENERAL DIVISION
ON APPEAL from the South
Australian division of the
Administrative Appeals Tribunal
constituted by Deputy President
R.A. Layton
BETWEEN :
J.R. EXPORTS PTY, LIMITED
Appellant
AND:
AUSTRALIAN TRADE COMMISSION
Respondent
CORAM FOX, SHEPPARD & BEAUMONT JJ.
DATE: 19 MARCH 1987
REASONS FOR JUDGMENT
FOX J.
This is an appeal from the Administrative Appeals
Tribunal which upheld a decision by the respondent Australian
Trade Commission ("the Commission") which had had before it for
reconsideration a decision by the Export Market Development
Grants Board ("the Board") given under $s.13(2A) of the Export
Market Development Grants Act 1974 ("the Act"). The Commission
affirmed the decision of the Board. The case turns on the affect
of amending legislation and transitional provisions.
Part II of the Act provides for the making of export
market development grants in reimbursement of expenditure in
"grant years" (which correspond with financial vears), and the
submission of claims for such grants. 0n 10 September 1985 the
present appellant submitted to the Board a claim for an export
market development grant for the grant years 1978 and 1979. At
the time of the submission, s.13(2A) of the Act provided:-
"A claim relating to a grant year shall be submitted within 5
months after the end of that year, or within such further time as
the Board allows." It has been assumed that the interval of six
years or so was within the phrase "such further time".
On 16 October 1985, with effect on that day, existing
s.13(2A) was repealed and a new s.13(2A) was substituted by the
Export Market Development Grants Amendment Act 1985. It provided
that:-
"A claim relating to a grant year shall be submitted-
(a) in the case of a claim relating to a grant vear other
than the grant year referred to in paragraph (b) - within 5
months after the end of that grant year; and
(db) ain the case of a claim relating to the grant year
commencing on 1 July 1984 - on or before 30 November 1985."
It is agreed that if the new s.13(2A) is applicable to
the appellant's claim, the application for re-consideration, and
the principal claim, could not be entertained.
On 15 October 1985 the Board resolved pursuant to
s.13(2A) not to "accept the late-lodged claim" and accordingly
rejected it.
Section 40A of the Act deals with reconsideration and,
save for formal amendments, has remained in the same terms at all
relevant times. It has been assumed that it applied to
applications for further time under $.13(2A). IT set out the
relevant parts of the section, as it existed before the
Commission was substituted for the Board:
"A0.A,
(2) A claimant affected by a decision of the Board and
dissatisfied with the decision may ... request the Board to
reconsider the decision.
(4) Upon receipt of the request, the Board shall reconsider
the decision and may either confirm the decision or vary the
decision in such manner as it thinks fit.
On 9 December 1985 the appellant lodged an application
for reconsideration of the Board's decision of 15 October. On 6
January 1986 certain provisions of the Australian Trade
Commission (Transitional Provisions and Consequential Amendments)
Act 1985 ("the Transitional Provisions Act") came into effect.
Section 44(1) of that Act transferred the functions of the Board
under the Act to the respondent Commission. Section 44(3)
provided specifically for the Commission to take over the role of
the Board, in reaching decisions, and to deal with those
applications for reconsideration not finalised by the Board. I
set out relevant parts of the section:
"(1) Any act or thing done by or to, or any decision made by.
the CBoard] under the Export Market Development Grants
Act 1974 as in force at any time before the commencing
day shall have effect, on and after that day, for the
purpose of that Act as amended and in force from time to
time, as if it were an act or thing done by or to, ora
decision made, by the Commission.
(3) Without limiting, by implication, the generality of
sub-section (1), where an application for
reconsideration of a decision of the CBoard] had been
lodged with the (CBoardy under the Export Market
Development Grants Act 1974 as in force at any time
before the commencing day but the CBoard] had not
completed its reconsideration of the decision specified
in the application before that day, that decision may be
reconsidered by the Commission under that Act as amended
and in force on and after that day as if it were the
decision of the Commission."
The "commencing day" was 6 January 1986 (Gazette Mo. $551 of 20
November 1985).
On 9 January 1986 the Commission dealt with the
application for reconsideration of the Board's decision of 15
October 1985. It was of the view that it was required to apply
the new s.13(2A) and confirmed the decision without entering into
the merits of the case. The appellant then sought review of this
decision by the Tribunal, which came to a similar conclusion,
affirming the decision.
Because of the view I take of the application of s.44(3)
of the Transitional Provisions Act it is not necessary for me to
explore the matter which has been much relied upon, namely that
the appellant had "an accrued right". but in view of the argument
I do so. In this connection reliance was placed upon s.8 of the
Acts Interpretation Act 1901 which reads in part as follows:
"Where an Act repeals in the whole or in part a former Act,
then unless the contrary intention appears the repeal shall
wae
(c) affect any right privilege obligation or liability
acquired accrued or incurred under any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in
respect of any such right privilege obligation liability ...
as aforesaid,
and any such investigation legal proceeding or remedy may be
instituted continued or enforced ... as if the repealing Act
had not been passed."
This section is expressly made subject to a contrary
intention and in this respect is more a rule of construction than
a rule of law.
It is not possible to define an "accrued right", anymore
than it isa "right" but the notion which underlies the latter,
when dealing with the present type of problem, is that there is
something 1n the nature of a cause of action which has arisen, or
1s claimed to have arisen, before the repeal or amendment, in
circumstances which would render 1t manifestly unjust for the
repealing or amending Act to affect the situation adversely.
What 1s not an "accrued right" is a right to claim an
indulgence, without which there can be no claim of substance. In
the present case, when the first application was made, there had
not been any relevant circumstances, beyond the delay. What was
sought by the appellant was an indulgence from the Board to
permit its application to be considered on its merits,
notwithstanding the delay. [It is, I think, not unimportant to
recognise that under the earlier s.13(2A) there were the two
discretionary elements, namely, whether the application would be
considered beyond the stated time and, if it were considered,
whether a grant should be made, and for how much.
What it was sought to have "reconsidered" was in the
first place the application for the indulgence respecting time.
This did not acquire the nature of an "accrued right" simply
because the application had already been refused. At the time of
any reconsideration the legal position was as it had been before.
Moreover, the "reconsideration" for which s.40A provides and
provided is in fact a fresh consideration. The section allows
fresh materials to be submitted and of course fresh submissions.
The appellant in fact presented fresh material and submissions in
the present case. For this reason alone an analogy with an
appeal in judicial proceedings is inapt.
We were not referred to any case, nor have I found any
which would qive any support to the submission made in this
connection. On the contrary, the authorities are to the opposite
effect.
A @istinction which is apt to the present case is
explained by the Privy Council in Director of Public Works v. Ho
Po Sang £19611 A.C. 901 at 922 as follows:
"It may be ... that under some repealed enactment a right has
been given but that in respect of it some investigation or
legal proceeding is necessary. The right is then unaffected
and preserved. It will be preserved even if a process of
quantification is necessary. But there is a manifest
distinction between an investigation in respect of a right
and an investigation which is to decide whether some right
should or should not be given. Upon a repeal the former is
preserved by the Interpretation Act. The latter is not."
- In Ho Po Sang itself, ss.3A to 3E of The Landlord and
Tenant Ordinance of Hong Kong provided for the issue of
rebuilding certificates in respect of land, which entitled the
Crown lessee to passession of the land. The sections provided
for the Director of Public Works to notify the tenants of his
intention to grant the certificate, and for "appeal" by petition
and cross-petition to the Governor in Council, who had a
discretion to direct that the certificate be granted or not
granted.
What happened was that application was made for a
certificate, the Director notified his intention to grant it,
petitions and cross-petitions were lodged with the Governor, and
ss.3A to 3E were then repealed. The Privy Council held that in
the circumstances the lessee had no "accrued right" within the
meaning of s.10 of the Interpretation Ordinance (which was in
similar terms to s.8) to the issue of the certificate. Because
the Governor had not vet exercised his discretion. "CtlJhe Lessee
had no more than a hope of expectation that he would be given a
rebuilding certificate..." (See at 922).
An example of an "investigation in respect of a right"
preserved by s.8 1s to be found in Continental Liqueurs Ptv. Ltd.
v. G.F. Heublein & Bro. Inc. (1960) 103 C.L.R. 422. An
application for removal of a Trade Mark was made under s.72 of
the Trade Marks Act, by a person aggrieved for removal of a mark
on the ground of non-user. Section 72 was then repealed, but
Kitto J. held that the Court should still entertain the
application (see at 426-7). Similar results occurred in Hamilton
Gell _v. White C19227 2 K.B. 222 (right to compensation for
ejectment) and Free Lanka Insurance Co. Ltd. v. Ranasinghe [1964]
A.C. 541 (right to damages for personal injuries).
On the other hand, in Robertson v. City of Nunawading
£19731] V.R. 819 at 826, it was held by the Victorian Full Court
(Winneke C.J., Gowans and Starke JJ) that "the mere taking of
procedural steps under a statute in the expectation of achieving
a benefit from an administrative authority does not create a
right to the continuance of the proceedings after the repeal of
the statute...." Ho Po Sang was followed and Continental Liqueurs
distinguished.
In my view the appellant did not at the time of the
repeal and re-enactment have "an accrued right" within the
meaning of the section. The common law on the subiect does not
assist the appeal any further.
I have earlier mentioned s.44(3) of the Transitional
Provisions Act. Whatever may have been the position between 16
October 1985 and 6 January 1986 in relation to a matter concluded
before the latter date this sub-section seems to me plainly to
deal with a situation such as arose in the present case. The
sub-section seems to acknowledge, incidentally, that a pending
application for reconsideration does not constitute or give rise
to "an accrued right" but even if this were so there was clearly
the expression of a contrary intention within the meaning of s.8
of the Acts Interpretation Act. The application for
reconsideration was made to the Board on 9 December 1985, and
consideration of it had not been completed by the commencing day,
& January 1986.
As the Tribunal's decision was in the nature of a
ire]
re-exercise of the Commission's discretion, 1t was likewise bound
to apply the new s.13(2A) and did so.
The appeal should be dismissed with costs.
I certify that this and the
eight (8) preceding pages are
a true copy of the Reasons
for Judqment herein of his
Honour Mr. Justice Fox.
os Bolan
Associate
Dated: 19 March 1987
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. G396 of 1986
GENERAL DIVISION
ON _ APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN :
J.R. EXPORTS PTY LIMITED
Applicant
AND:
AUSTRALIAN TRADE COMMISSION
Respondent
CORAM: Fox, Sheppard and Beaumont JJ.
DATE : 19 March 1987
REASONS FOR JUDGMENT
SHEPPARD J.: In this matter I have had the advantage of reading
the judgments to be delivered by the other members of the Court.
The task is to ascertain the intention of Parliament from a
consideration of the words which have been used in the relevant
legislation. If it had not been for the enactment of s. 44 of
the Australian Trade Commission (Transitional Provisions and
Consequential Amendments) Act 1985 ("the Transitional Provisions
Act"), the matter would have had to be resolved by reference to
s. 8(c) of the Acts. Interpretation Act 1901. The application of
that provision toa given case often gives rise to difficulty.
As was said by the Privy Council in Free Lanka Insurance Co.
Limited v. Ranasinghe £1964] A.C. 541 at p. 552, the distinction
2.
between what is and what is not "a right" for the purposes of a
provision such as s. 8 must often be one "of great fineness".
So far as it 1s relevant, s. 44 of the Transitional
Provisions Act is as follows:-
"44.(1) Any act or thing done by or to, or any
decision made by, the Grants Board under the
Export Market Development Grants Act 1974 as in
force at any time before the commencing day shall
have effect, on and after that day, for the
purpose of that Act as amended and in force from
time to time, as if it were an act or thing done
by or to, or a decision made by, the Commission.
(2) Without limiting, by implication, the
generality of sub-section (1), where a claim for a
grant had been submitted to the Grants Board under
the Export Market Development Grants Act 1974 as
in force at any time before the commencing day but
the Grants Board had not determined that claim
before that day, that claim may be dealt with
under that Act as amended and in force on and
after that dav by the Commission as if it had been
duly submitted to the Commission.
(3) Without limiting, by implication, the
generality of sub-section (Ll), where an
application for reconsideration of a decision of
the Grants Board had been lodged with the Grants
Board under the Export Market Development Grants
Act 1974 as in force at any time before that day,
that decision may be reconsidered by the
Commission under that Act as amended and in force
on and after that day as 1f 1t were the decision
of the Commission ..."
The most relevant provision for the purposes of the present
case is that contained in sub-sec. 44(3). This is addressed to
cases where the Board. having been asked to reconsider a matter,
had not completed its reconsideration of the decision before the
day upon which the new legislation came into force. The
Commission's power 15 to reconsider 'the decision under the Act
3.
"as amended and in force on and after that day as if it were the
decision of the Commission". The words "... in force on and
after that day" operate to oblige the Commission, in relation to
an application for reconsideration which was pending before the
Board, to reconsider the matter before it in the light of the
provisions of the Act as in force on the day of the
reconsideration. The application for reconsideration was lodged
with the Board on 9 December 1985. The Australian Trade
Commission Act 1985 came into force on 6 January 1986. It was
pursuant to that Act that the Board was replaced by the
Commission. The Transitional Provisions Act also came into force
on 6 January 1986. The case thus falls squarely within the
provisions of sub-sec. 44(3) of that Act. That is because the
application for reconsideration of the Board's decision was
lodged with the Board before "the commencing day", that is, 6
January 1986, but the Board had not completed its reconsideration
of the decision before that day. Its decision was made on 8
January 1986. The Commission had a duty to reconsider the
Board's decision, but under the Export Market Develooment Grants
Act 1974 as amended and in force on and after 6 January 1986. By
then the power to extend time had been removed by the amendment
to the Export Market Development Grants Act which had come into
force on 16 October 1985. [It must follow that the Commission
could not, upon its "reconsideration" of the matter, extend the
period of 5 months which was the period within which the
application for a grant should have been made.
For those reasons [I have reached the conclusion that the
appeal should be dismissed with costs.
| certify that thie-erethe preceding
pages are a true copy of the reasons for
judgment herein of Tne Honourable
Mr Justice Sheppard. / J zx / Me
Associate
Dated /7 4PRCH / 787
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. G396 of 1986
GENERAL DIVISION
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: J.R. EXPORTS PTY. LIMITED
Applicant
AND: AUSTRALIAN TRADE COMMISSION
Respondent
CORAM: Fox, Sheppard and Beaumont, JJ.
DATED: 19 March 1987
REASONS FOR JUDGMENT
BEAUMONT J. The amplicant has sought to claim from the
Export Development Grants Board ("the Board") a grant under the
Export Market Development Grants Act 1974 ("the EMDG Act") in
respect of expenditure incurred by it in the financial year
1978/1979. The claim was not submitted until 10 September 1985.
It appears that the applicant acted as an export consultant for a
number of parties. Those parties applied to the Board in 1979
for a grant under the EMDG Act but the Board refused their
applications. They sought review of the Board's decision from
the Administrative Appeals Tribunal ("the Tribunal"). The
Tribunal affirmed the Board's decision. The applicant claims
that 1t was not until July 1985 that it became aware of the
2.
possibility that 1t, rather than its clients, was the appropriate
party to claim a grant.
As at the date upon which the applicant submitted 1ts
claim, 10 September 1985, s.13(2A) of tne EMDG Act provided that
a claim relating to a grant year shall be submitted within five
months after the end of that year, or within such further time as
the Board allows. On 15 October 1985, the Board resolved not to
allow the claim to be submitted out of time. It formally
notified the appellant of its decision by letter dated 30 October
1985 but 1t appears that the decision was not brought to the
notice of the appellant until 13 November 1985.
At that date, the EMDG Act provided for review of
decisions of the Board as follows: A claimant dissatisfied with
a decision of the Board may, by notice in writing given to the
Board within a period of 30 days after the date on which the
decision first comes to the notice of the claimant, or within
such further period as the Board allows, request the Board to
reconsider the decision (s.40A(2)); upon receipt of the request,
the Board shall reconsider the decision and nay either confirm or
vary 1¢ im such manner as it thinks fit (s.40A(4)); applications
may be made to the Tribunal for review of decisions of the Board
that have been thus confirmed or varied (s.40A(6)).
On 16 October 1985, s.13 of the EMDG Act was amended.
Sub-section (2A) was omitted and a new provision was substituted
3.
to the effect that a claim relating to a grant year shall be
submitted within five months after the end of that year. There
was no provision for the grant of any extension of time.
By letter dated 9 December 1985, the applicant recuested
the Board to reconsider its decision. On 16 December 1985, by
virtue of the relevant provisions of the Australian Trade
Commission Act 1985 which came into effect on that date, the
functions of the Board were taken over by the Australian Trade
Commission ("the Commission"). Section 44 of the Australian
Trade Commission (Transitional Provisions and Consequential
Amendments) Act 1985, which came into operation on 16 December
1985, provides, so far as relevant:
"44.(1) Any act or thing done by or to, or
any decision made by, the Grants Board under the
Export Market Development Grants Act 1974 as in
force at any time before the commencing day
shall have effect, on and after that day, for
the purpose of that Act as amended and in force
from time to time, as 1f£ 1t were an act or thing
done by or to, or a decision made by, the
Commission.
(2) Without limiting, by implication, the
generality of sub-section (1), where a claim for
a grant had been submitted to the Grants Board
under the Export Market Development Grants Act
1974 as in force at any time before the
commencing day but the Grants Board had not
determined that claim before that day, that
claim may be dealt with under that Act as
amended and in force on and after that day by
the Commission as 1f it had been duly submitted
to the Commission.
(3) Without limiting, by implication, the
generality of sub-section (1), where an
application for reconsideration of a decision of
the Grants Board had been lodged with the Grants
Board under the Export Market Development Grants
4.
Act 1974 as in force at any time before the
commencing day but the Grants Board had not
completed its reconsideration of the decision
specified in the application before that day,
that decision may be reconsidered by the
Commission under that Act as amended and in
force on and after that day as 1f it were the
decision of the Commission...."
By letter dated 8 January 1986, the Commission informed
the applicant that, having assumed responsibility for the Board's
functions, it had considered the applicant's submission and had
resolved to confirm the Board's decision. On 14 February 1986,
the applicant applied to the Tribunal in pursuance of s.29(1) of
the Administrative Appeals Tribunal Act 1975 to have the decision
of the Board to refuse to accept the claim out of time reviewed
by the Tribunal.
Before the Tribunal, 1t was contended on behalt of the
Commission that the provisions of the new s.13(2A) applied to the
case with the conseguence that the Commission lacked any power to
extend time. The Tribunal upheld this contention and accordingly
affirmed the decision under review. The applicant now appeals
to this Court pursuant to s.44 of the Administrative Appeals
Tribunal Act on a question of law. It argues that the Tribunal
should have decided that the old s.13(2A) applied here with the
result that the Commission was empowered to allow the applicant's
claim to be made although out of time.
By s.8(c) and (e) of the Acts Interpretation Act 1901 -
"8, Where an Act repeals in the whole or in
5.
part a former Act, then unless the contrary
appears the repeal shall not -
(a)...
(b) 2...
(c) affect any right privilege obligation or
liability acquired accrued or incurred
under any Act so repealed;
(d) a...
(e) affect any investigation legal proceeding
or remedy in respect of any such right
privilege obligation Liability penalty
forfeiture or punishment {incurred in
respect of any offence committed against
any Act so repealed]),
and any such investigation legal voroceeding or
remedy may be instituted continued or enforced,
and any such penalty forfeiture or punishment
may be imposed, as 1f the repealing Act had not
been passed,"
The operation of s.8(c) of the Acts Interpretation Act
was considered by Kitto J. in Continental ~Ligueurs Proprietary
Limited v. G.F. Heublein and Bro. Incorporated (1960) 103 C.L.R.
422. An application for removal of a trade mark from the
register was filed in the High Court under the Trade Marks Act
1905-1948. Before 1% came on to be heard, the Trade Marks Act
1955 came into operation and repealed the whole of the Trade
Marks Act 1905-1948. The 1955 Act contained no provision dealing
with applications for removal pending at its commencement. It
was held that by filing its notice of motion the applicant had
acquired a right to have the Court decide whether it ought to
exercise 1ts jurisdiction under $.72 ana that right
notwithstanding the repeal of the section was preserved by s.8(c)
6.
of the Acts Interpretation Act. The applicant was accordingly
entitled to have 1ts application dealt with as if the section
were still in force. Kitto J. said (at p.426):
"Tf the application had not been pending in the
Court when the new Act came into force, I should
have agreed that the applicant company had not a
right to relief under s.72 which it could
thereafter enforce. Even though it had a locus
standi to apply under the section as a "person
aggrieved', s.8 of the Acts Interpretation Act
could have no application in its favour: see
Abbott v. Minister for Lands (1895) A.C. 425 at
p.431 and cf. Brandon's Patent, Ex parte Doty
(1884) 9 App. Cas.589. But in my opinion the
applicant, by instituting 1ts application in the
Court, that 1s to say by filing its notice of
motion, acquired a right to have the Court
decide whether it ought to exercise 1ts
jurisdiction under s.72 1n that application, and
that right was within the protection of s.3(c)
of the Acts Interpretation Act cf. Colonial
Sugar Refining Company Limited v. Irving (1905)
A.C. 369. The principle of Abbott v. Minister
for Lands is expressed in the sentence: ~...the
mere right (assuming 1t to be properly so
called) existing in the members of the community
or any class of them to take advantage of an
enactment, without any act done by an individual
towards availing himself of that right, cannot
properly be deemed a "right accrued''...' (1895)
A.C. at 9.431. The filing of the notice of
motion in the present case was an act done by an
individual towards availing himself of the right
to have an order made for the removal of the
mark from the register: cf. In re A Debtor; Ex
parte Debtor (1936) Ch. 237, at p.243. There
1s nothing in the 1955 Act to displace the
general rule of the common law which the Acts
Interpretation Act reinforces, namely that, in
general, when the law 1s altered during the
pendency of an action the rights of the parties
are decided according to the law as it existed
when the action was begun, unless the new
Statute shows a clear intention to vary such
rights: Maxwell on The Interpretation of
Statutes, lO0th ed. (1953) p.221, Hutchinson v.,
Jauncey (1950) 1 K.B. 574 at pp.578, 579.
Accordingly I am of opinion that the repeal of
the former s.72 the Trade Marks Act 1955 (Cth)
does not affect this application, and that the
application must now be dealt with as if that
section were still in force."
In my opinion, this reasoning 1s applicable in the
present case, Here, on 15 October 1985, the applicant had a
right to have the Board reconsider its decision to refuse to
allow the applicant's claim to be made although out of time (EMDG
Act, s.40A(2)). At that date, 1t had the further right, in the
event of dissatisfaction with the Board's reconsideration, to
seek review by the Tribunal (s.40A(6)). Such rights, in the
nature of rights of appeal, have traditionally been regarded as
"rights" for the purposes of s.8(c) of the Acts Interpretation
Act (see Colonial Sugar Refining Company Ltd. v. Irving [1905]
A.C. 369 at p.372; The Australian Coal and Shale Enoloyees
Federation v. Aberfireld Coal Mining Company Limited (1942) 66
C.L.R. 161 at pp.175, 178, 185 and 194; O'Connor v. The Argus
and Australasian Ltd. [1957] V.R. 374 at pp.377 and 381).
It ius true that the rights of the applicant were
inchoate or contingent in the sense that on 16 October, when the
new provisions came into force, the applicant had not by then
requested the Board to reconsider its decision, let alone sought
review from the Tribunal. But it has been held that a provision
such as s.8(c) can apply to a inchoate or contingent right
provided that it is more than a mere hope or expectation of
administrative action in favour of the party concerned (see Free
Lanka Insurance Co. Ltd. v. Ranasinghe [1964] A.C. 541 at p.552;
Halsbury's Laws of England, 4th ed., Vol. 44 at p.615). Although
8.
the Board and, on review, the Tribunal had a discretion to refuse
to allow the applicant's claim to be lodged out of time, it is
accurate to describe the right of the applicant to have that
question decided by the Board and, on review, by the Tribunal as
inchoate or contingent rather than a mere hope or expectation of
the kind described in Ranasinghe. Of course, 1t 1S impossible to
predict whether the Board (now the Commission) or the Tribunal
would accede to the application to extend time. Yet this only
means that the right to have that question decided was inchoate
or contingent as at 15 October 1985. In principle, the
applicant's position 1s no different from that of the applicant
before Kitto J. in Continental Liqueurs Proprietary Limited v.
Heublein and Bro. Incorporated, supra.
Further, in my view, the present case can be
distinguished from cases such as Robertson v. City of Nunawading
[1973] V.R. 819. Wainneke C.J., Gowans and Starke JJ. there said
(at p.826):
"Tf the conclusion is justified (as 1t appears to
be) that the mere taking of procedural steps
under a statute in the expectation of achieving
a benefit from an administrative authority does
not create a right to the continuance of the
proceedings after the repeal of the statute,
then the conclusion seems equally justified that
the mere taking of such procedural steps does
not create a right to the continuance of the
proceedings unaffected by amendment of the
statute."
The right involved here 1s not merely a procedural step
taken in the expectation of achieving a benefiz from an
9.
administrative authority - cf. Mekol Pty. Ltd. v. Baulkham Hills
Shire Council (1971) 2 N.S.W.L.R. 54 at p.58. The present
subject matter is something different, namely, the existence of a
right in the nature of a right of appeal which, as I have said,
has traditionally been regarded as a "right" of a kind protected
by s.8(c) (see also Pearce, Statutory Interpretation in
Australia, 2nd ed. at pp.158-9; The Retrospective Effect of
Changes in the Law, Prof. J.F. Burrows, [1976] NZLJI 343 at
p.348).
In my opinion, nothing turns on the circumstance that
the functions of the Board have been taken over by the
Commission. As has been seen, s.44(1) of the Australian Trade
Commission (Transitional Provisions and Consecuential Amendments)
Act 1985 provides that any decision made by the Board shall have
effect as 1f 1t were a decision made by the Commission. It
follows that the Board's decision on 15 October 1985 to refuse an
extension of time 1s to be treated as if 1t were the decision of
the Commission. By s.44(2), without limiting, by implication,
the generality of s.44(1), where a claim for a grant had been
submitted to the Board under the EMDG Act but the Board had not
determined that claim before the commencing day, that claim may
be dealt with under the EMDG Act "as amended and in force on and
after that day" by the Commission. By s.44(3), a similar
provision 1s made to deal with the situation where an application
for reconsideration of a decision of the Board had been lodged
with the Board but the Board had not completed its
10.
reconsideration. Plainly, both s.44(2) and (3) contemplate that
the Commission will deal with any substantive application for a
grant in accordance with the provisions of the EMDG Act as they
stood at the commencing day. It 1s understandable that the
provisions governing the substantive entitlement to a grant
should be intended to have an ambulatory operation. We are here
concerned, not with such a substantive application, but with an
application to make a claim out of time, something that 1s merely
adjectival. It is only reasonable to suppose that the generality
of the language of s.44(2) and (3) was not intended to deprive
the appellant of any rights in the nature of rignts of appeal
which otherwise would have been preserved by s.8(c) of the Acts
Interpretation Act. In other words, in my view, the general
words of s.44(2) and (3) should be read down so as to corfine
thelr ambulatory operation to the substantive entitlement to a
grant, as distinct from something merely incidental or adjectival
to a claim for a grant, such as a request that the time for
making such a grant be extended.
It follows, in my view, that the appeal should be
allowed, that the decision of the Tribunal should be set aside
and that the matter should be remitted to the Tribunal with a
direction that 1t hear and determine the application to review
the decision to refuse to allow an extension of time.
Counsel and Solicitors
for Applicant:
Counsel and Solicitors
for Respondent:
Date of hearing:
Date Judgment Delivered:
11.
I certify that this and the
preceding fin (/0)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Mr. Justice Beaumont.
fiuile /p levsE
Associate
Dated: 19 March 1987
Mr. I.B. Ward Q.C. with J.A. Coombs
instructed by Cameron Gillingham § Co.
Mr. J. Harris instructed by the
Australian Government Solicitor
17 February 1987
19 March 1987