Uniden Australia Pty Ltd v Collector of Customs [1997] FCA 285

CATCHWORDS ADMINISTRATIVE LAW - Customs duties - application for refund of Customs duty - whether applicant obliged to obtain the permission of the Collector of Customs to withdraw its application - right of party to withdraw from proceedings considered. Customs Act 1901 (Cth) - s 163 Judiciary Act 1903 (Cth) - s 39B Administrative Appeals Act 1975 (Cth) - s 44 Customs Regulations - regs 126, 127, 128A, 273GA Customs Act 1901 s 39B of the Judiciary Act 1903 (Cth) s 44 of the Administrative Appeals Tribunal Act 1975 Re Queensland Nickel Management Pty Limited v Great Barrier Reef Marine Park Authority (1992) 16 AAR 319 Hanson v London Rent Assessment Committee; R v London Rent Assessment Committee; Ex parte Hanson [1976] QB 394 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307 Lehtovaara v Commission of Patents (1981-2) 39 ALR 103 UNIDEN AUSTRALIA PTY LTD v COLLECTOR OF CUSTOMS No. NG 736 of 1995 CORAM: FOSTER J DATE: 22 APRIL 1997 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 736 of 1995 ) GENERAL DIVISION ) BETWEEN: UNIDEN AUSTRALIA PTY LTD Applicant AND: COLLECTOR OF CUSTOMS Respondent JUDGE MAKING ORDERS: FOSTER J DATE: 22 APRIL 1997 PLACE: SYDNEY MINUTE OF ORDERS THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The notice of motion seeking leave to apply under s 39B of the Judiciary Act 1903 be dismissed.

3. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 736 of 1995 ) GENERAL DIVISION ) BETWEEN: UNIDEN AUSTRALIA PTY LTD Applicant AND: COLLECTOR OF CUSTOMS Respondent CORAM: FOSTER J DATE: 22 APRIL 1997 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR: The Court has before it appeals under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from two decisions of a senior member of the Administrative Appeals Tribunal ("the AAT") given on 30 August 1995. The decisions were given in respect of AAT matters N95/62 and N95/1195. These appeals are, necessarily, restricted to questions of law (s 44(1) AAT Act). Additionally, the applicant has by notice of motion sought leave to bring proceedings against the respondent under s 39B of the Judiciary Act 1903 (Cth) seeking declaratory and other relief in respect of the subject matter of the appeals. The granting of such leave was opposed by the applicant. I shall deal with this question later in these reasons. Before dealing with the questions raised in the appeals, it is necessary that I set out matters of background. The applicant ("Uniden") is an importer of cellular telephones. At all relevant times Connor Anderson Customs Pty Limited ("CAC") acted as its customs agent in its dealings with the respondent ("the Collector"). As the case concerns applications for refunds of customs duty paid by Uniden, it is convenient to set out the sections of the Customs Act 1901 (Cth) ("the Act") and regulations made under the Act which have been referred to in argument. Section 163 of the Act provides for refunds of duty as follows:- "163. (1) Refunds, rebates and remissions of duty may be made: (a) in respect of goods generally or in respect of the goods included in a class of goods; and (b) in such circumstances, and subject to such conditions and restrictions (if any), as are prescribed, being circumstances, and conditions and restrictions, that relate to goods generally or to the goods included in the class of goods. (1a) The regulations may prescribe the amount, or the means of determining the amount, of any refund, rebate or remission of duty that may be made for the purposes of subsection (1). (1b) A Collector shall refuse to consider an application for a refund of duty paid in respect of goods if: