The respondent (IMT) brings a motion seeking an order that the matter be remitted to the Administrative Appeals Tribunal (AAT), as originally constituted (subject to the availability of the relevant members) to be determined according to law without the hearing of further evidence other than as determined by the AAT.
The motion arises as the consequence of the lodgement of a notice of appeal by the Industry Research and Development (IR&D) Board from the decision of the AAT on 20 January 2000. The AAT then determined that “with regard to the projects referred to as the 3.3M craft, the 5M craft and the sail powered Wild Thing, a certificate pursuant to s 39L(1) be issued that the activity set out in Table 1, in so far as they can be substantiated and quantified, are research and development activities.”
The questions of law said to be raised by the appeal are whether in reaching a decision under s 39L(1) of the Industry Research and Development (IR&D) Act 1986, it is necessary to decide what activities have in fact been carried on by the claimant;
Whether the AAT erred by failing to give reasons (including findings on material questions of fact and a reference to the evidence or other material on which those findings were based) for deciding that the activities were “systematic, investigative or experimental” activities within the meaning of the IR&D Act;
Whether in reaching a decision under s 39L(1), it is necessary for the AAT to decide whether the activities claimed involved innovation or technical risk and to include its reasons for decision finding on those issues and a reference to the evidence or other material on which the findings were based;
Whether the Tribunal erred in failing to address and make findings as to whether the technology was core technology in relation to the activities claimed.
The appeal by IMT be allowed and the decision of the AAT will be set aside and the matter remitted to the AAT as differently constituted to be determined according to law.