Global Metal Group Pty Ltd v Chief Executive Officer of Customs & Ors [2007] HCATrans 540 (10 September 2007)

Last Updated: 19 September 2007

[2007] HCATrans 540

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S229 of 2007

B e t w e e n -

GLOBAL METAL GROUP PTY LTD

Plaintiff

and

CHIEF EXECUTIVE OFFICER OF CUSTOMS

First Defendant

MINISTER FOR JUSTICE AND CUSTOMS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 10 SEPTEMBER 2007, AT 9.38 AM

Copyright in the High Court of Australia

MR J.T. SVEHLA: May it please the Court, I appear for the plaintiff, your Honour. (instructed by Geoffrey Cantelo)

MR S.B. LLOYD: May it please the Court, I appear the defendants, your Honour. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Svehla, you rely on an affidavit of Brian William Carr which was filed on 18 May 2007?

MR SVEHLA: Yes, your Honour.

HIS HONOUR: Also of Geoffrey James Cantelo which was filed on 18 July 2007?

MR SVEHLA: Yes, your Honour.

HIS HONOUR: Do you object to those, Mr Lloyd?

MR LLOYD: Not for the purposes of today’s matter, your Honour.

HIS HONOUR: I have read them and I do not imagine you want to cross-examine the deponents, Mr Lloyd? Very well. Yes, Mr Svehla. I have read, of course, your written submissions.

MR SVEHLA: Yes, your Honour.

HIS HONOUR: I do have to say that my inclinations are strongly with Mr Lloyd at the moment.

MR SVEHLA: No, I can well appreciate that, your Honour. Our submissions make it quite clear, your Honour, that we would be only seeking to have some very limited questions first determined in this Court, questions that go to the construction of the Dumping Duty Act and the Customs Act. Dumping duty, the plaintiff contends, only arises or can be imposed if a particular notice is made by the Minister and is publicly declared in the gazette and in newspapers. We say that did not occur and hence the imposition of the dumping duty – it is a bit like a provisional assessment, something that is called interim dumping duty which you pay at the time of importation to get the goods released – was never validly collected.

Those questions require a handful of documents and we would say could be determined then on agreed facts. If that is in our favour, then the balance of the proceeding gets remitted to the Federal Court. They are important matters. It also raises the question of whether or not common law actions for money paid under mistake, et cetera, are available. In this circumstance, the Full Federal Court has held they are not available for customs duty but dumping duty is created by a separate statute and has a separate character and the question has never been decided.

So, we do not cavil with the notion that there would be a range of factual matters that could not be determined by this Court, but these questions go to the very heart of the matter. They are significant matters going to the way in which the duty can be imposed in the first place and we would say that they are matters which this Court could and should determine, your Honour.

HIS HONOUR: Yes, thank you. I need not trouble you, Mr Lloyd.

On 18 May 2007 the plaintiff filed an application for an order to show cause in which it sought writs of mandamus against officers of the Commonwealth. The question is whether the proceeding should be remitted to the Federal Court of Australia. The parties agree that that court has jurisdiction. The defendants contend that the whole of the proceeding should be referred to the Federal Court. The plaintiff contends that there are four questions of law which should be determined by this Court before the proceedings are referred to the Federal Court. In the alternative, it contends that the whole of the proceedings should be referred to the Federal Court at this stage.

The proceedings involve, among other things, the construction and application of the Customs Act 1901 (Cth) and of the Customs Tariff (Anti-Dumping) Act 1986 (Cth). This is a field in which the Federal Court has considerable experience and specialised expertise. The initiating process is 111 pages in length. It appears to raise complex questions of fact and law. To use the language of Chief Justice Brennan in Ravenor Overseas Inc v Readhead [1998] HCA 17; (1998) 152 ALR 416 at 417, paragraph [5], for this Court to entertain these proceedings would be to divert it from its principal functions.

Further, despite the plaintiff’s contention that the issues of statutory construction which it wishes to raise can be determined on a small number of documents and agreed facts, experience teaches that the decision of questions of law in isolation before the relevant facts have been found usually leads to confusion.

No ground has been advanced which would justify a departure from the ordinary course, namely, that the proceedings be remitted to the Federal Court for its decision and that any dissatisfaction with the outcome in that court be ventilated by the ordinary process of appeal. I indicate the following as appropriate orders with a view to the parties commenting on their appropriateness:

1. That these proceedings, including any enlargement of time pursuant to the High Court Rules to bring the proceedings for the relief claimed, be remitted to the Federal Court of Australia at Sydney pursuant to section 44 of the Judiciary Act 1903 (Cth).

2. That all documents filed in these proceedings be taken to have been filed in the proceedings as remitted.

3. That the costs of the proceedings to the date of remission are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to the Federal Court of Australia and in the discretion of that court.

4. Costs are reserved.

Are those orders satisfactory?

MR SVEHLA: Your Honour, the only matter that is in the first proposed order to include the question of enlargement of time pursuant to the High Court Rules, the usual course is for those matters to be determined by the rules of the court to which they are remitted. There has been no communications on that point so I am a bit uncertain as to what is underlying that specific procedural reservation being made by an order of this Court.

HIS HONOUR: What is underlying it, Mr Lloyd?

MR LLOYD: I think only that one of the forms of relief is certiorari which has a time limit in this Court and we simply seek to preserve our position to object to that. I do not think in the end given that there is 28 forms or other forms of relief it is going to get us very far.

HIS HONOUR: Mr Svehla, the choice is between arguing it now, which may have nasty consequences, or referring it to some kindly Federal Court judge.

MR SVEHLA: I would prefer to let it be dealt with later, your Honour. I just did not want to agree to it in that circumstance.

HIS HONOUR: The orders I proposed will be the orders made. Thank you, gentlemen.

AT 9.46 AM THE MATTER WAS CONCLUDED