Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232

FEDERAL COURT OF AUSTRALIA

Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232 CUSTOMS AND EXCISE – diesel fuel rebate – appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – whether Administrative Appeals Tribunal erred in refusing to pay claims for rebate under s 164 Customs Act 1901 (Cth) – where applicant engaged in dredging of channels in various ports – definition of "in marine transport" under s 164(7) – whether particular uses of diesel fuel in dredging operations attracted rebate ADMINISTRATIVE LAW – construction of legislation by Administrative Appeals Tribunal – Tribunal assumed bulletin published by Australian Taxation Office constituted departmental policy – Tribunal applied bulletin when construing legislation – Tribunal erred in relying on bulletin in a material way – error of law in approach of the Tribunal WORDS AND PHRASES – 'in marine transport'

Administrative Appeals Tribunal Act 1975 (Cth) s 44 Customs Act 1901 (Cth) s 164

BHP Billiton Petroleum Pty Ltd v Chief Executive Officer of Customs (2003) 129 FCR 31 discussed Chief Executive Officer of Customs v Dyno Wesfarmers Ltd (1997) 73 FCR 1 referred to Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited Collector of Customs v Rottnest Island Authority (1994) 48 FCR 177 cited Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 cited Hunter Resources Limited v Melville (1988) 164 CLR 234 cited Irving v Minister for Immigration, Local Government and Ethnic Affairs (1995) 59 FCR 423 cited Maritime Union of Australia v Minister for Transport (2000) 100 FCR 58 cited Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Re Tas Island Shipping Pty Ltd and Collector of Customs (1989) 11 AAR 121 cited Repatriation Commission v Stoddart (2003) 77 ALD 67; [2003] FCAFC 300 referred to Vetter v Lake Macquarie City Council (2001) 202 CLR 439 referred to