Collector of Customs (NSW) v Brian Lawlor

41 FLR 338

---

(Judgment by: Deane J)

Collector of Customs (NSW)
vBrian Lawlor

Court:

Judges: Bowen CJ
Smithers J

Deane J

Subject References:
Customs and excise
Licence
Revocation
Collector of Customs
Private warehouse licence
Issued by Collector of Customs
Revocation by
Licensee not 'a fit and proper person' to hold licence
Appeal by licensee to Administrative Appeals Tribunal
Whether revocation in ex-cess of authority
Appeal by Collector against decision of Tribunal
Whether authorization of revocation by Customs Act and Acts Interpretation Act
Jurisdiction of Tribunal to review
Cus-toms Act 1901 (Com) s 81 and Pt V, Div 1
(CTH) Acts Interpretation Act 1901 s 33(3)
(CTH) Administrative Appeals Tribunal Act 1975 ss 3(3), 25(4), 26(2), 44

Legislative References:
Administrative Appeals Tribunal Act 1975 - s 3(3); s 25; s 26; s 44; Schedule 1
Acts Interpretation Act 1901 - s 33(3)
Customs Act 1901 - Pt V; Div 1
Administrative Appeals Tribunal Act 1975 - s 3(3); s 25

Case References:
Banks v Transport Regulation Board (Vic) - (1968) 119 CLR 222
Calvin v Carr - (1979) 22 ALR 417
Anisminic Ltd v Foreign Compensation Commission - [1969] 2 AC 147; [1969] 1 All ER 208
Commissioner of Stamps (Qld) v Wienholt - (1915) 20 CLR 531
Cowell v Rosehill Racecourse Co Ltd - (1937) 56 CLR 605
Crane v Public Prosecutor - [1921] 2 AC 299; [1921] All ER Rep 19
Davidson v Chirnside - (1908) 7 CLR 324
Green v Daniels - (1977) 13 ALR 1
Hamilton v Halesworth - (1937) 58 CLR 369
Heatley v Tasmanian Racing and Gaming Commission - (1977) 14 ALR 519
James Jones & Sons Ltd v Tankerville (Earl) - [1909] 2 Ch 440
James Paterson & Co Pty Ltd v Melbourne Harbor Trust Commissioners - [1961] VR 343
Little v Commonwealth - (1947) 75 CLR 94
Marshall v Watson - (1972) 124 CLR 640; [1972] ALR 641
Meyers v Casey - (1913) 17 CLR 90
Padfield v Minister of Agriculture and Fisheries - [1908] AC 997
Pearlman v Keepers and Governors of Harrow School - [1978] 3 WLR 736
R v Clyne Ex parte Harrap - [1941] VLR 200
R v Hurst Ex parte Smith - [1960] 2 QB 133
R v Lyon - (1906) 3 CLR 770
Reid v Moreland Timber Co Pty Ltd - (1946) 73 CLR 1
Salemi v Minister for Immigration and Ethnic Affairs (No 2) - (1977) 14 ALR
Selmes v Judge - [1871] LR 6 QB 724
Staffordshire Area Health Authority v South Staffordshire Waterworks Co - [1978] 1 WLR 1387
Strickland v Rocla Concrete Pipes Ltd - (1971) 124 CLR 468; [1972] ALR 3
Sullivan v Department of Transport - (1978) 1 ALD 383; 20 ALR 323
Taplin v Florence - (1851) 10 CB 744
Thompson v Goold & Co - [1910] AC 409
Trobridge v Hardy - (1955) 94 CLR 147
Western Australia v Commonwealth - (1975) 134 CLR 201; 7 ALR 159
White v Kuzych - [1951] AC 585; [1951] 2 All ER 435
Wilson v Chambers & Co Pty Ltd - (1926) 38 CLR 131
Winter Garden Theatre (London) Ltd v Millennium Productions Ltd - [1948] AC 173
Wood v Leadbitter - (1845) 13 M & W 838

Hearing date:
Judgment date: 3 May 1979

Sydney

---

Judgment by:
Deane J

This is an appeal from a decision of the Administrative Appeals Tribunal, constituted by its learned President, setting aside a decision of the Collector of Customs, New South Wales, (the Collector) to revoke a private warehouse licence issued to Brian Lawlor Automotive Pty Ltd (the company) in respect of premises situated at 152 Old Pittwater Road, Brookvale, New South Wales and known as "Bri-Law Bond". His Honour held that the power of revocation which had purportedly been exercised did not exist. His Honour also held that, in the circumstances, the Tribunal possessed jurisdiction to make an order setting aside the purported revocation and substituting a decision that no action be taken purporting to revoke the appellant's licence. In this appeal, the Collector attacks the Tribunal's decision on both questions.

The company's warehouse licence was in written form and was dated 16 March 1976. It was stated to commence on 12 March 1976, that is, four days before its issue. It was signed by the Collector of Customs, New South Wales, as delegate of the Minister of State for Customs and Excise and was expressed to be subject to the provisions of the Customs Act 1901, the regulations for the time being in force under that Act, and the conditions specified on the back of the document. Those conditions were:--

(a)

Goods the property of Brian Lawlor Automotive Pty Ltd are to be stored in the bond.

(b)

The bond is to be used as a storage facility only.

(c)

All goods are to be properly entered for warehousing before receipt into bond.

The purported revocation of the licence was contained in a letter dated 31 October 1977 signed by Mr J G Gallagher, "Senior Assistant

Collector, Services (for G E Sheen) Collector of Customs, New South Wales". The letter stated that the revocation was "to take effect from 21 November 1977". The explanation advanced for the revocation was: "Recent enquiries into the operations of Bri-Law Bond have revealed that your company is not, in my opinion, a fit and proper person to hold a customs warehouse licence". The letter ended with a notification that the company was "required to remove all underbond goods from Bri-Law prior to 21 November 1977, to some customs general warehouse or alternatively, to duly enter such goods for home consumption and pay the duty payable thereon prior to that date". This letter was, apparently, received by the company on 1 November 1977.

On 18 November 1977 or shortly therefter, the company applied to the Administrative Appeals Tribunal for a review of the decision to revoke its warehouse licence. In conformity with s 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (the Act), the application for review set out a number of grounds of the application. Included among those grounds was the claim that the decision to revoke the licence was "in excess of authority".

Section 25(4) of the Act provides that the Administrative Appeals Tribunal "has power to review any decision in respect of which application is made to it under any enactment". Section 3(3) provides that a "reference in this Act to a decision includes a reference to", inter alia , "making, suspending, revoking or refusing to make an order or determination", "issuing, suspending, revoking or refusing to issue a licence, authority or other instrument" or "doing or refusing to do any other act or thing". Section 26(2) provides that a "reference in sub-section 25(4) to an enactment includes a reference to the Schedule". Part XII, cl 2(b) of the Schedule to the Act provides that applications "may be made to the Tribunal for review of ... a decision by the Minister under Division 1 of Part V of the Customs Act".

Division 1 of Pt V of the Customs Act 1901 deals with licensed warehouses. It provides that dutiable goods may be warehoused in warehouses licensed by the Minister (s 78) and specifies five classes of licensed warehouses (s 79). Prescribed fees are to be paid by licensees for warehouses within such periods or at such times as are prescribed. In default of payment of any part of any licence-fee for 30 days after the prescribed time for payment, the Minister may, by Gazette notice, cancel the licence (s 81). Apart from this specific power to cancel a licence where default has occurred in the payment of licence fees, there is no provision in the Customs Act 1901 expressly authorizing the Minister or his delegate to cancel or revoke a warehouse licence. It is common ground between the parties that the purported revocation of the company's licence was not based upon the express power to cancel a licence for non-payment of licence fees. Nor was it suggested that the purported revocation of the licence was pursuant to a limited power of revocation for failure to comply with one or more of the express conditions endorsed on the back of the licence. The purported revocation was founded by the Collector upon a general power to revoke or cancel a licence which the Collector claimed, and the company denied, was implicit, either by virtue of the provisions of s 33(3) of the

Acts Interpretation Act 1901 or as a matter of construction unaided by the provisions of that sub-section, in the general power to license warehouses conferred by the provisions of Div 1 of Pt V (in particular s 78) of the Customs Act 1901.

When the application for review came on for hearing before the Administrative Appeals Tribunal, counsel who appeared for the company indicated to the learned President that there was "a jurisdictional point" involved in the matter. Documentary evidence and a statement of some agreed facts were placed before the President. Counsel for the company stated that he would wish, if the matter fell to be determined on the merits, to place some oral evidence before the Tribunal but submitted that, since oral evidence might involve some admissions which would be unnecessary if the "jurisdictional point" were upheld, the point should be dealt with as a preliminary question. With the concurrence of the representative of the Collector, the learned President adopted that course. In essence, the point was that no general power to revoke a warehouse licence could be implied from the provisions of Div 1 of Pt V of the Customs Act 1901. The purported revocation was a nullity. It had been effected in reliance upon a power which simply did not exist.

The jurisdiction of the Administrative Appeals Tribunal to review the decision to revoke the licence must be found, if it existed, in the provisions of the Act to which reference has already been made. In the particular circumstances of the present matter, the jurisdiction of the Tribunal existed under these provisions if, and only if, the decision to revoke the licence was a "decision in respect of which application (had been made) to it under" cl 2(b) of Pt XII of the Schedule to the Act. In this regard it is important to note that the relevance of the application extends beyond the enlivening of jurisdiction independently conferred upon the Tribunal. The existence of the jurisdiction to review a decision is dependent upon the decision being one in respect of which an application answering the designated description has been made to the Tribunal. The application in the present matter answered the relevant designated description if it was, within cl 2(b), an application "for review of ... a decision ... under Division 1 of Part V of the Customs Act". The essential requirements of that designated description are that the decision revoking the licence was "a decision ... under Division 1 of Part V of the Customs Act" and that the application was an application "for review", in the relevant sense, of that decision.

In considering whether the application satisfied these requirements, it is necessary to distinguish between a colourable exercise of actual power conferred by an enactment and the usurpation of power. The exercise of a power conferred by an enactment will ordinarily involve, at least implicitly, assessment of the content of the power and determination of whether any conditions precedent to its existence or valid exercise have been fulfilled. Such assessment and determination, even if wrong or mistaken, are incidents of the power conferred. A decision as to the exercise of the power which is based upon and is the result of a wrong assessment of content or a mistaken determination that conditions precedent have or have not been fulfilled will, in terms of legal effect, be void or voidable. It is none the less proper, in the context of a legislative scheme for review of decisions made under the enactment, to regard the decision as a "decision under" the enactment: cf Meyers v Casey (1913) 17 CLR 90-6 at 114; Calvin v Carr (1979) 22 ALR 417-7 at 425. Where, on the other hand, an enactment confers no relevant power or function at all, the usurpation of power or function cannot properly be regarded as a "decision under" the enactment merely because the usurper points to the enactment as a source or possible source of any decision-making power or function.

If, in the present matter, the purported revocation of the licence had been impeached on the ground that there had been a colourable but ineffectual exercise of a power or function in fact conferred or arising under Div 1 of Pt V of the Customs Act 1901, the application to set it aside could properly be regarded as an application to review a decision under that Division. That was not, however, the issue raised by the company's primary submission. The primary submission of the company was not that there had been a wrongful exercise, or mistaken determination of the scope or content, of a power or function under the Division. The submission was that there was simply no relevant power or function at all. If the question raised by that submission had arisen in the course of the Tribunal's disposing of an application by an applicant who alleged that there was a decision under a relevant enactment which he wished the Tribunal to review, the Tribunal would have been entitled to entertain the submission and reach a conclusion on the question. An example of such a case would be where the submission was advanced by the respondent to an application for review who disputed that there was any decision at all which the Tribunal had authority to review. Where, however, as in the present case, the submission was advanced by an applicant who sought, on the basis of it, an order from the Tribunal setting aside the impeached decision, the question which the submission raised could not be said to arise in the course of the Tribunal's disposing of an application to review a "decision under" the relevant enactment. The question arose in the course of what was, in so far as the submission was relevant, an application to set aside the impeached decision on the ground that it was not, on any approach, a decision under the relevant enactment. To the extent that it was an application for that relief, the application was an application which the Tribunal had no authority to entertain in that it did not seek what it lay within the province of the Tribunal to grant, namely, the review of a "decision under" the relevant enactment. Indeed, in so far as it was an application for that relief, the application was, in effect, an application for a determination by the Tribunal that there was not in truth any decision which the Tribunal was competent to review.

An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence of that jurisdiction. The provisions of the Act do not purport to confer any such authority upon the Administrative Appeals Tribunal. If they did, a serious question would arise as to whether, to that extent, they purported to confer part of the judicial power of the Commonwealth upon an administrative body which was not a court for the purposes of Ch III of the Constitution.

In the course of his reasons for decision, the learned President of the Administrative Appeals Tribunal forcefully pointed to the serious inconvenience which would result if questions relating to the validity of the purported exercise of a power were excluded from the Tribunal's authority to review decisions made under the enactment conferring the power. The present matter does not however, in my view, raise that general point for decision and I have indicated that, in my view, such questions will ordinarily be within the ambit of the Tribunal's authority. The question raised by the present matter is whether the jurisdiction which the Act confers upon the Tribunal to deal with an application for review of a decision made under a particular enactment includes jurisdiction to entertain and determine an application that a particular decision should be set aside on the ground that there had not even been a colourable exercise of a power contained in the relevant enactment for the reason that there was simply no relevant power to be found in it. It may well be inconvenient that a person who wishes to litigate the question whether an enactment confers any power at all to make a decision, is unable to do so in the administrative tribunal which has authority to review decisions made under that enactment. Such inconvenience is not, however, an uncommon consequence of the division of judicial and executive powers.

In the result, I am of the view that the Administrative Appeals Tribunal did not have jurisdiction to set aside the purported revocation of the Company's warehouse licence on the ground that no relevant power of revocation existed. The issue between the company and the collector as to the existence of the relevant power of revocation was not, in my view, an issue which could be resolved by the Administrative Appeals Tribunal at the suit of the company which propounded its denial of the existence of any relevant power as the basis of what was, in effect, an application for a declaration that there was no decision which the Tribunal had authority to review. The decision of the Tribunal setting aside that purported revocation was beyond jurisdiction and should itself be set aside.

It is not, on the view I take on the jurisdictional question, necessary for the resolution of this appeal that a decision be reached on the question whether any general power of revocation is to be implied within the provisions of Div 1 of Pt V of the Customs Act 1901. Since I am in a minority on the jurisdictional question however, it would seem preferable that I indicate that I agree, for the reasons which he gives, with the conclusion reached by the Chief Judge that no general power of revocation of a private warehouse licence can be implied from the provisions of Div 1 Pt V of the Customs Act 1901, either by virtue of the provisions of s 33(3) of the Acts Interpretation Act 1901 or as a matter of independent construction. I would add to the reasons given by the Chief Judge the consideration that there is not, in my view, any legitimate basis for distinguishing between the provisions of the Division relating to a general warehouse licence and those relating to a private warehouse licence. Considerations of the rights of third persons whose goods may be stored in a licensed general warehouse make it, in my view, difficult to conceive that the Parliament intended that a general power of revocation should be implied into the provisions of Div 1 in the absence of any provision of the type contained in s 81 of the Customs Act 1901, to ensure that due publicity is given to such revocation.

I would set aside the decision of the Administrative Appeals Tribunal and remit the matter to the Tribunal for further hearing. If the company wishes to obtain an authoritative determination that no general power of revocation of a private warehouse licence is to be found in the provisions of Div 1 of Pt V of the Customs Act 1901, it may, no doubt, seek an adjournment of the proceedings in the Tribunal to enable it to obtain a judicial determination of that question. I would make no order as to the costs of either party of the proceedings in this court.