Articles & Information

NEW ZEALAND APPLES - NOW ON TO THE WORLD TRADE ORGANIZATION - BY ROSS BECROFT - NEW
In the latest chapter of this dispute, New Zealand has requested the establishment of a World Trade Organization Panel to determine whether Australia’s apple import regime complies with the WTO Rules.

AUSTRALIAN ANTI-DUMPING SYSTEM REVIEW: PROGRESS BUT STILL UNCERTAINTY - BY ROSS BECROFT - NEW
With the new Federal Labor Government in power, it remains to be seen whether there will be wholesale changes to Australia’s Anti-Dumping Laws.  The follow represents some of the recent history in this ongoing debate.

SHIPPING CLAIMS: DIFFICULTIES WITH ARGUING THAT THE CLAIM IS IN THE WRONG COURT - NEW
The recent decision Australian Federal Court decision of Heilbrunn v Lightwood PLC demonstrates that it is often difficult to persuade a Court to decline jurisdiction and not hear the case.

DEFINITION OF "MANUFACTURER" FOR TARIFF CONCESSION PURPOSES - NEW
The Tariff Concession system under the Customs Act provides that where no substitutable goods are produced in Australia in the ordinary course of business an importer is entitled to obtain a Tariff Concession Order. This allows for duty free entry.

PARALLEL IMPORTATIONS OF TRADEMARKED GOODS - NEW
The recent decision Australian Federal Court decision of Heilbrunn v Lightwood PLC demonstrates that it is often difficult to persuade a Court to decline jurisdiction and not hear the case.

POLICY BY-LAWS – ENHANCED POLICY BY-LAWS SCHEME (ITEM 71) AND CERTAIN INPUTS TO MANUFACTURE (ITEMS 57 AND 60) - NEW
These Schemes are administered by AusIndustry and can be of great benefit to Australian importers.

SUCCESS IN DEFENDING TCO FOR PET - NEW
Gross & Becroft were retained by one of Australia’s major importers of polyethylene teraphalate (PET) which is utilised by the client to manufacture carbonated soft drink bottles, long life fruit juices and still water bottles.  We had originally been involved in the successful application for the Tariff Concession Order and were again retained by the importer when a local company claimed that it was a manufacturer of substitutable goods.  In the process of defending the application for revocation, it became quite clear that the local company did not meet the 25% local content threshold, despite claiming that it locally sourced some of the ingredients utilised in the manufacture of PET.

TOUGH ROAD TO OVERTURN A GARBAGE BIN (A DUMPING CASE) - NEW
Schaefer, a Malaysian exporter of wheelie bins, has failed in the Federal Court to have dumping duties removed.  The exporter had won five large Australian contracts for the supply of mobile garbage bins, predominantly to Australian councils.  In response to this significant volume of imports that was occurring within a short space of time, Nylex Limited and another company Sulo lodged an application to Australian Customs for the institution of dumping duties.  As per usual, the key issues were whether or not the Malaysian imports were being bought into Australia at dumped prices (i.e. below the normal value in the domestic Malaysian market) and whether or not local industry had suffered material injury as a result of the imports.

“FREE” TRADE AGREEMENTS – BEWARE OF YOUR GOODS NOT GETTING IN WITH PREFERENTIAL DUTY RATES- BY ROSS BECROFT
With the recent spate of Australian bilateral FTAs with Singapore, Thailand and the United States, traders and their agents need to be aware of any potential problems with the composition, manufacture or shipment of goods that might result in them not being covered by the Agreements and therefore not receiving preferential duty status.

PACIFIC BRANDS ‘KING GEE’ AND ‘STUBBIES’ CASE – WHO HAS THE RIGHT TO DISTRIBUTE JOCKS AND SOCKS IN AUSTRALIA? BY ROSS BECROFT
This case involved problems that arose after Pacific Brands acquired Sara Lee's Australian operations where another company claimed that it retained the right to manufacture underwear and socks under these well known labels.

REMOVAL OF 3% REVENUE DUTY ON TCOs AND IMPACT ON EPBS - COMMENTARY BY LOUIS GROSS
In the 2005 Budget, the Government announced that the 3% duty payable by holders of tariff concession orders will be removed. This will make TCOs more attractive but there is still a place for the usage of the Enhanced Project By-Law Scheme.

CEO OF CUSTOMS v GRANITE ARMS PTY LTD
WHO IS THE REAL IMPORTER?
This case concerned the importation of a shipment of handguns and the question as to who was the real importer for the purposes of having the required statutory permit.

CUSTOMS ROLLED IN SUNSCREEN BLIND CASE
In the recent case of Mermet Australia Pty Ltd & Ors v CEO of Customs the tariff classification of sunscreen blinds was in issue. Louis Gross & Associates successful acted for Mermet Australia in having a decision by Customs to classify the goods to Chapter 54 overturned.

SIEMENS LTD v SCHENKER INTERNATIONAL (AUSTRALIA) PTY LTD - THE FINAL WORD ON FORWARDER’S LIABILITIES
The High Court, on 9 March 2004, determined that a FIATA Air Waybill did extend protection to a freight forwarder where goods were damaged during the road leg following air carriage. Accordingly, Schenker was finally successful in this case following four separate Court hearings. (This article was published in the CBFCA's e-bulletin)

POSSESSORY LIENS IN SALE OF GOODS TRANSACTIONS: NAVIGATING THROUGH THE FOG
Before advising on a client's rights regarding a possessory lien, a practitioner needs to be clear about the distinctive features of such a lien and how it operates in competition with other rights or securities over goods. By Ross Becroft – Published in the April 2004 Law Institute of Victoria Journal

AUSTRALIAN OLIVE OIL PRODUCER LOSES DUMPING AND SUBSIDY COMPLAINT AGAINST EUROPEANS
Australian Customs recently terminated its investigation concerning exports of olive oil from Spain, Italy and Greece because the complainant had failed to prove that EC subsidies were 'countervailable' or that dumping into the Australian market had caused material injury to the complainant.

CEO OF CUSTOMS v LABRADOR LIQUOR WHOLESALE PTY LTD
Importers should be aware that this recent landmark High Court case means that Customs must meet the criminal standard of proof when prosecuting businesses or individuals under the Australian Customs Act.

INDEPENDENT DISTILLERS (AUST) PTY LTD -v- CEO OF CUSTOMS
Louis Gross & Associates recently won a case in the Administrative Appeals Tribunal (AAT) to confirm that Customs duty on RTD’s (Ready To Drink mixed drinks) was to be calculated on the actual alcoholic content and not the labelled content.

CASE NOTE: AMCOR V CEO OF CUSTOMS
OVERTURNING GOVERNMENT DECISIONS: A CASE STUDY
This case concerned a challenge by an importer to a Customs decision under Australia’s anti-dumping regime. The Court held that there was a failure by Customs to properly assess an application for a Final Determination of duty.

CASE NOTE: MATTHEW SHORT & ASSOCIATES -V- RIVIERA MARINE
(INTERNATIONAL) & ANOR NSW Court of Appeal
A boat carried by a carrier engaged by a forwarder was damaged. This case examines the respective roles and liabilities of each of the parties and their ability to rely on the exemption clauses contained in their terms of trade.

CUSTOMS VALUATION FIASCO
The complexity of Australia’s Customs Valuation provisions is highlighted here by an example of Customs failing to properly conduct a revaluation pursuant to s.161H(5).