Re Tooheys Limited v the Minister of Business and Consumer Affairs (1981) 54 FLR 421

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  • Tooheys Brewery wanted to buy a special palletising machine from the USA. They arranged it to be imported via a third-party importer.
  • Under the import legislation, the Minister was able to make a determination so that they would pay less to import the item, if it was not an item that was available in Australia.
  • An application was made on behalf of Tooheys for the item.
  • The Minister responded by letter to Tooheys application refusing to make a determination that the item was unavailable in Australia, as Tooheys hadn’t contacted other suppliers to see if they could make such a machine.
  • Therefore, the importer was charged a higher tariff, a cost which was passed onto Tooheys.
  • Tooheys sought to appeal the decision. The Act allowed an “aggrieved party” to appeal against an administrative decision.
  • The Minister argued grounds including that no decision had been made; that if it had, the decision was not of an administrative character; and Tooheys was not the aggrieved party, as it had been the importer who had paid the duty.


  1. Was a decision made?
  2. Was the decision of an administrative character?
  3. Was Tooheys an “aggrieved party” under the Act?


  • In regards to (1), the Court held that the letter showed that a final decision had been made by the Minister. Therefore, the answer to whether a decision had been made was “yes”.
  • In regards to (2), the Court held that the phrase “administrative character” should be interpreted widely.
  • A decision is of administrative character where it applies a law to a particular circumstance, as opposed to being of legislative character, where it changes the scope of the law.
  • In this case, the decision was of an administrative character.
  • In regards to (3), the Court again held this should be interpreted widely.
  • An “aggrieved person” did not necessarily need to be someone who had a direct legal interest in the proceedings (e.g. would get $$ directly from the judgment). It was sufficient that it would affect their rights indirectly (e.g. if the importer got the $$ back, the importer would then issue a refund to Toohey).
  • Therefore Toohey succeeded and had the right to appeal the decision.


  • (1) “The phrase “decision of an administrative character” is one of wide import. The Review Act confers on citizens important procedural rights against executive action under Commonwealth enactments … the phrase should be given a wide construction and application. It is undesirable to attempt to define in advance its full scope and operation.” (Ellicott J)
  • (2) “The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases.” (Ellicott J quoting Latham CJ in the Commonwealth v. Grunseit)
  • (3) “The words “a person who is aggrieved” should not in my view be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase…  I am satisfied however that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public… It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties.” (Ellicott J)

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