FEDERAL COURT OF AUSTRALIA

Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86

THE COURT ORDERS THAT:

1.                  Proceeding NSD 960 of 2009 is stood over to 27 July 2010 at 9:30 am with a view to then making orders disposing of the appeal and any order in respect of the costs before the primary Judge. Any written submissions on costs before the primary Judge to be filed by 23 July 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  Proceeding NSD 959 of 2009 is stood over to 27 July 2010 at 9:30 am with a view to then making orders disposing of the appeal and any order in respect of the costs before the primary Judge. Any written submissions on costs before the primary Judge to be filed by 23 July 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Bennett J

1                                             I agree with the conclusion reached by Graham and Flick JJ that the appeal in NSD 960 of 2009 should be dismissed and that the appeal in NSD 959 of 2009 should be upheld for the reasons given by their Honours. I agree with the orders they propose.

2                                             I express no view on the matters discussed by Graham and Flick JJ on which their Honours expressed tentative views and which are not necessary for decision, namely whether s 269TG is necessarily incorporated in all cases when discharging the functions conferred by s 269ZDA and s 269ZDB of the Customs Act 1901 (Cth) (the Customs Act) and whether s 269TAE is necessarily applied when discharging the functions conferred by s 269ZHF and s 269ZHG of the Customs Act.

3                                             I wish, however, to add some short comment on the construction of s 269ZC of the Customs Act and whether the CEO applied the correct test for revocation.

4                                             Section 269ZC of the Customs Act relevantly requires that if the CEO is not satisfied of one or more of the matters in subsection (2), he or she must reject the application for review of existing anti-dumping measures.  Section 269ZC(2)(b)(ii) relevantly provides that the matter to be considered is whether there appear to be reasonable grounds for asserting that, if the anti-dumping measures had not been taken, the Minister would not be entitled to take such measures. 

5                                             The construction of s 269ZC is not without difficulty because of the series of negatives: the CEO must reject the application if not satisfied of one of the matters in subsection (2).  Subsection (2) recites reasonable grounds for asserting that if measures had not been taken, the Minister would not be entitled to take them.

6                                             This necessitates an examination of the situation at the time of the application for review.  It requires the CEO to ascertain the Minister’s entitlement to take such measures.  The entitlement of the Minister to take measures, as if ab initio, imports the considerations of s 269TG, which sets out the matters as to which the Minister must be satisfied before imposing anti-dumping measures.  Those factors are, shortly, the export price of the goods being less than the amount of the normal value of the goods and material injury to an Australian industry being caused or threatened.

7                                             Section 269ZC(2)(b) provides that the matter is whether there appear to be reasonable grounds for asserting the matters in (i) or (ii).  This places the onus for establishing the reasonable grounds on the person making the assertion: the applicant for review.  It does not change the requirement to consider the factors in s 269TG(2) to ascertain whether the Minister would or would not be entitled to take the anti-dumping measures.

8                                             As the primary Judge said at [82]:

…One question for the Minister to consider was whether he was satisfied that importation of the dumped product by Siam had caused, was then causing or threatening to cause material injury to the Australian industry as s 269TG(2)(b) required.  The Minister (and the CEO in preparing the report under s 269ZDA(1)) had first, to take into account the criteria in s 269TG(2) and, secondly, to give weight to his or her conclusions on those criteria, as fundamental elements in making a declaration under s 269ZDB(1).  …

9                                             If the CEO is not satisfied that there are reasonable grounds for asserting that the Minister would not be entitled to take the measures he or she must reject the application.  The Minister is not entitled to take the measures unless, relevantly, he or she is satisfied that material injury to an Australian industry producing like goods has been or is being caused or is threatened.  Therefore, the CEO must ascertain whether there appear to be reasonable grounds for asserting that there is no such material injury.  If not satisfied, he or she rejects the application.

10                                          The CEO stated the test for revocation correctly: ‘in the hypothetical situation of measures not being in place, there would now be grounds to impose the measures. In other words, if the measures were removed, is it likely that the exporter or exporters would dump goods and cause material injury to the Australian industry’.  However the CEO then applied a test of whether he or she was satisfied that dumping would not cause material injury if the measures were revoked.  This is not the correct test.

Associate:

Dated:         13 July 2010

REASONS FOR JUDGMENT

Graham and Flick JJ

11                                          There are two proceedings presently before the Court, firstly an appeal from the judgment of the primary Judge in proceedings NSD 1194 of 2008 (the ‘review’ proceeding), which appeal is identified as NSD 960 of 2009; and, secondly, an appeal from the judgment of the primary Judge in proceedings NSD 1557 of 2008 (the ‘continuation’ proceeding), which appeal is identified as NSD 959 of 2009.

12                                          The Respondent was the applicant in each proceeding before the primary Judge and the Appellants, being the Minister of State for Home Affairs (‘the Minister’) and the Chief Executive Officer of Customs (‘Chief Executive Officer’), were the respondents in each proceeding before the primary Judge.  The two proceedings were heard together by the primary Judge on 2-3 March 2009, although further consideration of the review proceedings was required on 11 August 2009.

13                                          Both proceedings concern the manufacture by the Respondent, Siam Polyethylene Co Ltd (‘Siam’), of linear low density polyethylene in pellets (‘product’) in Thailand.  Siam sells its product on the domestic market to a distributor and also exports its product from Thailand to Australia, where it is acquired by a distributor, Dow Chemical (Australia) Pty Ltd (‘Dow’).

14                                          Linear low density polyethylene is a variety of polyethylene produced by the polymerisation of ethylene gas with co-monomers, mainly butene, hexene and octene, in the presence of various catalysts at controlled pressures and temperatures. The product is produced using low-pressure in either a gas phase reactor or a solution process.  Certain other chemicals are used in the polymerisation process.  The raw product is mixed with additives to produce the various grades, compounded, extruded and chopped into pellets for sale.

15                                          The product is used in a variety of extrusion, blow, injection and rotational moulding applications.  When extruded the product is used to manufacture films, plastic bags, shopping bags, pipes and coatings.  When blow moulded the product is used to manufacture containers.  When injection moulded the product is used to manufacture telephones, toys, house wares and crates, and when rotational moulded the product is used to manufacture tanks and drums.

16                                          The three co-monomers used in the production of the product are sometimes referred to by the number of carbon units they contain: eg., C4 which is produced using butene as the co-monomer, C6 which is produced using hexene as the co-monomer, and C8 which is produced using octene as the co-monomer.

17                                          There is only one Australian manufacturer of the product namely Qenos Pty Limited (‘Qenos’).

18                                          On 3 December 2003 anti-dumping measures had been imposed on imports into Australia of product from Korea and Thailand, which measures were due to expire on 3 December 2008.

19                                          It is not disputed that imports of product from Siam have been at dumped prices.

20                                          The first of the two proceedings before the primary Judge may be traced back to 12 November 2007 when Qenos lodged an application for a review of anti-dumping measures in respect of product exported to Australia from Indonesia, Korea and Thailand.  A review was then conducted and interested parties were extended an opportunity to make submissions.  Dow and Siam proposed, amongst other issues for consideration, revocation of the measures.

21                                          This application for review led to recommendations made on 5 May 2008 by the Second Appellant, the Chief Executive Officer, to the First Appellant, the Minister, in respect of the review.  Those recommendations were contained within Trade Measures Report No. 134 (‘Report 134’) and recommended changes to the variable factors for the assessment of anti-dumping duties.  Revocation of the anti-dumping measures was not recommended by the Chief Executive Officer.

22                                          A public notice under s 269ZDB(1) of the Customs Act was signed by the Minister on 23 June 2008.  The Minister recorded (inter alia) that he had considered Report 134 and accepted the recommendations and reasons for the recommendations, including all material findings of fact or law set out in the Report.  Under s 269ZDB(1) of the Customs Act, the Minister declared for the purposes of the Act and the Customs Tariff (Anti-dumping) Act 1975 (Cth) (‘Dumping Duty Act’) to the extent that anti-dumping measures concerning the goods involved the publication of a dumping duty notice that, with effect from the date of publication of the notice, the dumping duty notice was taken to have effect in relation to exporters generally (excluding exempt exporters) as if different variable factors had been fixed in respect of those exporters, relevant to the determination of duty.  The notice included:

To preserve confidentiality, the revised variable factors will not be published. Bona fide importers of the goods can obtain details of the new rates from the Regional Dumping Officer in their respective capital city. …

The effect of accepting the recommendations increased the previously assessed duty on Siam from nil to a substantial figure.

23                                          Siam sought judicial review of both the decision of the Chief Executive Officer and also the Minister. The primary judge set aside the Chief Executive Officer’s recommendations and the Minister’s declaration in so far as they related to Siam: Siam Polyethylene Co Limited v Minister of State for Home Affairs [2009] FCA 837; 258 ALR 481.  His Honour concluded that the Chief Executive Officer and the Minister had failed to ascertain whether dumping had caused or threatened any material injury and had failed to ascertain what anti-dumping measures were appropriate to meet that injury. The orders His Honour made on 12 August 2009 were, relevantly, as follows:

2.             In so far as they relate to the applicant, the recommendations made to the first respondent by the second respondent in Trade Measures Report 134 on or about 6 May 2008 under s 269ZDA(1) of the Customs Act 1901 be set aside.

3.             In so far as they relate to the applicant, the declaration and public notice made by the first respondent under s 269ZDB(1) of the Customs Act 1901 and dated 23 June 2008 be set aside.

4.             The first and second respondents pay the applicant’s costs.

24                                          The second of the two proceedings before the primary Judge, namely the continuation proceeding, concerned a subsequent finding of Customs and declaration made by the Minister on 27 August 2008, public notice of which was given under s 269ZHG(1) of the Customs Act.

25                                          This subsequent decision of the Minister was the outcome of a “continuation inquiry” commenced by Customs on 18 March 2008. This inquiry was directed at the possible continuation of the anti-dumping measures that were due to expire on 3 December 2008.  A separate Report, being Trade Measures Report No. 137 (‘Report 137’),had been prepared pursuant to s 269ZHF and forwarded to the Minister on 20 August 2008.  The Minister’s decision had the effect of continuing the imposition of anti-dumping measures currently in place in relation to the export of product from Thailand into Australia.  In doing so the Minister accepted recommendations made to him by the Chief Executive Officer in Report 137.

26                                          Siam again sought judicial review of both the recommendations of the Chief Executive Officer and the declaration of the Minister.  In the continuation proceeding, the primary Judge set aside the recommendations made by the Chief Executive Officer and the declaration made by the Minister in so far as they related to Siam:  Siam Polyethylene Co Limited v Minister of State for Home Affairs (No 2) [2009] FCA 838; 258 ALR 515.  The primary Judge concluded that the Chief Executive Officer and the Minister had failed to apply the correct test and had failed to ask the correct question for the purposes of ss 269ZHF(1) and 269ZHG(1).  His Honour considered that the likelihood of dumped product from Thailand causing material injury to Qenos had to be addressed.

27                                          In the continuation proceeding, the primary Judge relevantly made the following orders on 12 August 2009:

2.             In so far as they relate to the applicant, the recommendations made to the first respondent by the second respondent in Trade Measures Report 137 on or about 20 August 2008 under section 269ZHF(1) of the Customs Act 1901(Cth) be set aside.

3.             The declaration dated 27 August 2008 made by the first respondent under section 269ZHG(1) of the Customs Act 1901 (Cth) and published by notice dated 3 September 2008 be set aside in so far as they relate to the applicant.

4.             The first and second respondents pay the applicant’s costs.

28                                          Separate notices of appeal were filed in each matter.  With the concurrence of the parties, it is possible to publish a single judgment dealing with both appeals.

29                                          Confidentiality orders had been made by the primary Judge in respect of material that was commercially confidential being the confidential annexures to the two relevant Trade Measures Reports.  Confidentiality orders were also made in respect of the same materials for the purposes of the hearing of the present appeals.

30                                          For the reasons that follow, the appeal in the review proceeding should be dismissed and the appeal in the continuation proceeding should be allowed.  There should be no order as to costs in either appeal.

The Statutory Scheme in Respect to Anti–Dumping Measures

31                                          Anti-dumping measures have a long history in Australian legislation.

32                                          Initially, such measures were to be found in the Australian Industries Preservation Act 1906 (Cth) (‘the 1906 Act’).  Anti-dumping measures were found within Part III of that Act. Of central importance was s 19(1) which provided as follows:

19.–(1.) The Comptroller-General, whenever he has received a complaint in writing and has reason to believe that any person (hereinafter called the importer), either singly or in combination with any other person within or beyond the Commonwealth, is importing into Australia goods (hereinafter called imported goods) with intent to destroy or injure any Australian industry by their sale or disposal within the Commonwealth in unfair competition with any Australian goods, may certify to the Minister accordingly.

The reference in that sub-section to an “intent to destroy or injure any Australian industry” apparently had the consequence that the legislation was little used: E J Cooper, Customs and Excise Law (1984)at [1306].  Section 18(1) provided that competition was “deemed to be unfair, unless the contrary [was] proved”.  Competition was then “deemed to be unfair” if a variety of circumstances existed, including if:

(f) the imported goods are imported by or for the manufacturer, or some person acting for or in combination with him or accounting to him, and are being sold in Australia at a price which is less than gives the person importing or selling them a fair profit upon their fair foreign market value, or their fair selling value if sold in the country of production, together with all charges after shipment from the place whence the goods are exported directly to Australia (including Customs duty).

33                                          Even this early legislation contained a provision providing for the rescission in whole or in part of any “prohibition or any condition or restriction or limitation on importation imposed thereby” under this Part of the 1906 Act.  Other sections of this early Act also placed emphasis upon the necessity to prove an “intent”.  Section 4 thus referred to an “intent to restrain trade or commerce to the detriment of the public”: cf. The Adelaide Steamship Company Limited v The King and the Attorney General of the Commonwealth (1912) 15 CLR 65. The intent, it was said in an earlier case, had to “be real and not merely imputed”: R v Associated Northern Collieries (1911) 14 CLR 387 at 460 to 461.

34                                          Anti-dumping measures, however, have moved on a long way since these early attempts to legislatively regulate the practice of importing goods at dumped prices.  The present provisions are found within Part XVB of the Customs Act. Part XVB reflects in substance amendments to the Act made in 1994 by the Customs Legislation (World Trade Organization Amendments) Act 1994 (Cth) and in 1998 by the Customs Legislation (Anti-Dumping Amendments) Act 1998 (Cth).  The amendments were intended to enable Australia to meet its obligations under agreements negotiated in the Uruguay Round of the General Agreement on Tariffs and Trade: Pilkington (Australia) Ltd v Minister for Justice and Customs [2002] FCAFC 423 at [22], 127 FCR 92 at 98 to 99 per Mansfield, Conti and Allsop JJ.

35                                          Both the Appellants and the Respondent filed detailed submissions as to the correct construction and application of the provisions found throughout Part XVB.  These statutory provisions “are to be interpreted and applied, as far as the language permits, in accordance with Australia’s international obligations” and “[a] broad approach to construction is to be adopted”: Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service [2006] FCA 1644 at [48] to [49], 156 FCR 94 at 103 per Jacobson J.

36                                          It has proved unnecessary to resolve in the present appeals some of the more detailed submissions advanced in writing and developed during the course of oral submissions which extended over two days.

37                                          Part XVB now contains detailed provisions relevant to anti-dumping duties.  Within this Part there are a number of divisions dealing with more specific aspects of such duties.These divisions include:

·                    Division 1 being a preliminary division setting forth “What this Division is about” (s 269SN) and a number of definitions (s 269T), including definitions as to terms used elsewhere throughout Part XVB such as “dumping duty notice” and “variable factors”(s 269T(4E)), “export price” (s 269TAB), the “normal value of goods” (s 269TAC), “non-injurious price” (s 269TACA), and “material injury” (s 269TAE);

·                    Division 2 being a division dealing with the “Consideration of anti-dumping matters by the CEO” including an identification of “What this Division is about” (s 269TBA), the manner in which applications may be under the “Dumping Duty Act” (s 269TB) and the consideration of such applications (s 269TC), and the termination of investigations (s 269TDA);

·                    Division 3 being the division dealing with the “Consideration of anti-dumping matters by the Minister” including a provision setting forth “What this Division is about” (s 269TF), the matters to be taken into account by the Minister (s 269TG), the making of a declaration that the Dumping Duty Act applies or that an undertaking from an exporter should be accepted (Australian Paper Ltd v Anti-Dumping Authority (1998) 88 FCR 367), and the periods during which notices and undertakings remain in force (s 269TM);

·                    Division 5 being the division dealing with the “Review of anti-dumping measures” including an identification of “What this Division is about” (s 269Z), the circumstances in which applications for review may be made (s 269ZA), the manner in which such applications may be made (s 269ZB), the consideration of such applications by the Chief Executive Officer (s 269ZC), statements of essential facts (s 269ZD), the provision by the Chief Executive Officer of a report to the Minister containing recommendations (s 269ZDA), and the powers of the Minister upon receipt of a report (s 269ZDB); and

·                    Division 6A dealing with the “Continuation of anti-dumping measures”, including an identification of “What this Division is about” (s 269ZHA), the circumstances in which applications for the continuation of anti-dumping measures may be made (s 269ZHB), the content and lodgment of such applications (s 269ZHC), the consideration of such applications by the Chief Executive Officer (s 269ZHD), the placement of a statement of essential facts on the public record (s 269ZHE), and the provision by the Chief Executive Officer of a report to the Minister (s 269ZHF), and the powers of the Minister upon receipt of a report (s 269ZHG).

The remaining Divisions within Part XVB were not the subject of submissions and were treated by the parties as casting no light on the issues to be resolved on the appeals, perhaps with the exception of s 269ZZA which provides for review of some Ministerial decisions by a “Review Officer”. A useful “overview” of Part XVB is provided in s 269SM of the Customs Act.

38                                          In setting out the Divisions of Part XVB in this way, the Commonwealth Legislature has sought to sequentially deal with the manner in which anti-dumping measures may be imposed and, thereafter, to deal with applications for the review of such measures once imposed (Division 5) and the continuation of such measures beyond their original expiry dates (Division 6A).

39                                          A provision of central importance, at least at that stage when consideration is being given at the outset to the imposition of anti-dumping duties, is s 269TG(2) — a provision itself contained within Division 3.  That sub-section provides as follows:

Where the Minister is satisfied, as to goods of any kind, that:

(a)     the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods; and

(b)     because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered;

the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.

Albeit not a provision expressly referred to within either Division 5 or Division 6A, a recurring issue throughout written and oral submissions was the extent to which s 269TG(2) was “incorporated” within those Divisions such that a proper discharge of the powers and functions relevantly conferred by ss 269ZDA and 269ZDB (within Division 5) and ss 269ZHF and 269ZHG (within Division 6A) required consideration to be given to the analysis demanded by s 269TG(2).

The Review of Existing Anti-Dumping Measures — Report 134

40                                          The statutory provisions applicable to the review of existing anti-dumping measures are set forth in Part XVB Division 5 of the Customs Act.

41                                          A principal issue dividing the Appellants and the Respondent seemed (with respect) to shift in emphasis between an argument as to whether:

·                    as a matter of statutory construction, Division 5 implicitly incorporated the necessity to give consideration to s 269TG when an application for review had been made and accepted, and whether the primary Judge had in fact concluded that s 269TG(2) was incorporated as a necessary requirement when applying Division 5 to the facts;

to an argument about whether:

·                    in circumstances where an application for review had been made and accepted and where that application raised for substantive consideration the question of whether existing anti-dumping measures should be revoked or varied, consideration of s 269TG(2) was then required.

If the latter argument prevailed, a further argument advanced by the Respondent was that:

·                    the Chief Executive Officer and the Minister had incorrectly applied the test required by s 269TG(2).

42                                          Separate from this principal issuedividing the parties, arguments were also directed to whether the primary Judge had erred in concluding that “the Minister gave no reasons for asserting … that it was necessary to determine a non-injurious price under s 269TACA(a) for Siam less than the market price”: ([2009] FCA 837 at [124]). 

43                                          An issue also addressed primarily in the written submissions focussed upon a ground of review advanced before the primary Judge that there was “no evidence” that any “injury” to the Australian industry had been caused by exports from Thailand.

The Incorporation of Section 269TG as a Matter of Construction?

44                                          The clearest instance where the Appellants contended that the primary Judge had erred by incorporating the criteria in s 269TG as criteria necessarily to be taken into account as “fundamental elements” when discharging the functions imposed by s 269ZDA and s 269ZDB was the following part of His Honour’s reasoning:

The Correct Test

[82] … The Minister (and the CEO in preparing the report under s 269ZDA(1)) had first, to take into account the criteria in s 269TG(2) and, secondly, to give weight to his or her conclusions on those criteria, as fundamental elements in making a declaration under s 269ZDB(1). In that way, the initial justification for the s 269TG(2) declaration would be revisited by the Minister having regard to the up-to-date information ascertained in the review process under Div 5 of Pt XVB and the purposes of the Act and the Dumping Duty Act would be addressed appropriately by him in making the relevant choice in a declaration under s 269ZDB(1)(a): R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J (with whom Gibbs J agreed); Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 107 ALD 474 at 501–503 [103]–[112] where I discussed the principles.

Contrary to such reliance as His Honour may have placed upon Sean Investments and his own earlier observations in Telstra Corporation, the Appellants contended that the requirement imposed upon the Chief Executive Officerby s 269ZDA(1) that he “must … give the Minister a report recommending” one or other of those options set forth in s 269ZDA(1)(a) was not a requirement mandating that any particular matter had to be given “fundamental” importance: See Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436 at [112] to [120], 171 FCR 174 at 200 to 201 per Lindgren J.

45                                          It is, with respect, unclear whether the primary Judge was expressing a view as to the correct construction of s 269ZDA and s 269ZDB in the context of Division 5 generally or merely expressing a view as to the application of those provisions to the facts and circumstances of the present proceeding. But that difficulty can, for present purposes, be left to one side.

46                                          Whether or not the criteria imposed by s 269TG are incorporated starts from the proposition that nowhere within Division 5 is there any express reference to s 269TG.

47                                          Any argument that s 269TG is incorporated as a matter of statutory construction as imposing requirements to be taken into account in all cases when discharging the functions conferred by s 269ZDA and s 269ZDB necessarily has to depend upon a process of implication.

48                                          To the extent that Senior Counsel on behalf of the Respondent advocated such a process of construction, particular reliance was placed upon the conditions that had to be satisfied prior to the making of a report pursuant to s 269ZDA and the making of a declaration pursuant to s 269ZDB.

49                                          But it is not considered that the terms of s 269ZDA provide any support for a conclusion that the requirements imposed by s 269TG are necessarily incorporated in all cases when making a report pursuant to that provision.  In this regard, Senior Counsel for the Appellants contended that the requirement that the “CEO must … give the Minister a report recommending” one or other of those matters set forth in s 269ZDA(1) does not impose any requirement that in all cases the Minister must “take into account the criteria in s 269TG(2) and, secondly, to give weight to his or her conclusions on those criteria, as fundamental elements in making a declaration under s 269ZDB(1)”.

50                                          Reliance was also placed in the course of submissions upon s 269ZC and the statutory specification of the matters to be taken into account by the Chief Executive Officer when considering whether to accept or reject an application for review pursuant to s 269ZC(1). Section 269ZC(2) states:

For the purposes of subsection (1), the matters to be considered in relation to an application are:

(a)    whether the application complies with section 269ZB; and

(b)    whether there appear to be reasonable grounds for asserting either:

(i)      that the variable factors relevant to the taking of anti‑dumping measures have changed; or

(ii)     that, if the anti‑dumping measures to which the application relates had not been taken, the Minister would not be entitled to take such measures.

Section 269ZB(2)(d) imposes requirements upon an applicant seeking review of the matters to be included in an application made under s 269ZA(1). Section 269ZB(2) thus states:

Without otherwise limiting the matters that can be required by the approved form to be included, the application must include:

(a)     a description of the kind of goods to which the measures the subject of the application relate; and

(b)     a description of the measures the subject of the application; and

(c)     if the application is based on a change in variable factors – a statement of the opinion of the applicant concerning:

(i)      the variable factors relevant to the taking of the measures taken that have changed; and

(ii)     the amount by which each such factor has changed; and

(iii)    the information that establishes that amount; and

(d)     if the application is based on any other circumstances that in the view of the applicant would prevent the Minister, in the absence of the anti‑dumping measures, from taking such measures – a statement of those other circumstances.

Of present relevance is the comparability between s 269ZB(2)(d) and s 269ZC(2)(b)(ii).  Reference may also be made to like provisions in s 269ZA(1)(b) and (3)(b).

51                                          Emphasis was thus placed by Senior Counsel for the Respondent upon the statutory phrase (or its variants) that consideration was to be given to whether:

… if the anti-dumping measures to which the application relates had not been taken, the Minister would not be entitled to take such measures.

It was contended by Senior Counsel for the Respondent that the Minister, when making a declaration under s 269ZDB, was “to apply the same criteria and the same standard as apply at the threshold of initial imposition”. Such a conclusion was said to follow from:

·                    the text and context of the Customs Act;

·                    the scope, object and purpose of the Customs Act; and

·                    the need to ensure consistency with Australia’s international obligations.

52                                          Notwithstanding the detailed submissions that were advanced, it is nevertheless unnecessary to express any concluded view in the present proceeding.

53                                          A tentative view is, however, expressed that s 269TG is not incorporated as a matter of statutory construction such that the requirements of that section have to necessarily be considered whenever the functions conferred by s 269ZDA or s 269ZDB are being discharged.

54                                          No matter what may be the importance of the criteria to be taken into account when considering an application seeking review and when considering whether to accept or reject any such application, there is no self-evident reason why the powers conferred by s 269ZDA and s 269ZDB are not powers only constrained by the express terms in which they are conferred.  In contrast to the criteria imposed by s 269ZA, s 269ZB and s 269ZC, the powers conferred by s 269ZDA and s 269ZDB remain unconfined by any express constraint other than those referred to in those provisions. And the simple reason for that may be that the Legislature saw fit to leave it to the Chief Executive Officer when making a report (and to the Minister when making a declaration) to determine whether an existing dumping duty notice was to remain unaltered, be revoked, or have effect as if variable factors had been changed.  The range of factors to be taken into account by the Chief Executive Officer in making a report and the Minister in making a declaration, and the tasks to be undertaken when considering which option to pursue, would depend upon the facts and circumstances of each individual case.  In some circumstances where revocation is an option to be pursued, consideration of the factors set forth in s 269TG may be appropriate; in circumstances where only a change in the variable factors is in issue, such an analysis may be inappropriate.

55                                          There is considered to be no self-evident reason why the statutory pre-conditions which have to be satisfied before the powers conferred by s 269ZDA and s 269ZDB can be exercised should themselves become constraints upon the exercise of those powers in all cases.

56                                          The factors to be taken into account may well be guided by the terms of the application for review made in any particular case, the recommendation in fact made and the declaration made.  If an exporter or Australian industry is dissatisfied with the manner in which a recommendation is made, judicial review remains an available course whereby it may be contended (for example) that genuine consideration has not been given to the options not recommended or not the subject of declaration.

57                                          It is, however, unnecessary to express any more concluded view here.

Incorporation when Revocation is an Issue Raised in Submissions on the Application

58                                          It is unnecessary to do so because in the present proceedings an application for review was made and accepted where:

·                    Qenos contended that relevant variable factors had changed (cf. ss 269ZA(1)(b)(i), 269ZDA(1)(a)(iii) and 269ZDB(1)(a)(iii)); and

·                    Dow and Siam later jointly contended that the anti-dumping measures were inappropriate and should be revoked (cf. ss 269ZA(1)(b)(ii), 269ZDA(1)(a)(ii) and 269ZDB(1)(a)(ii)).

59                                          Report 134 gave consideration to which of the options set forth in s 269ZDA(1)(a) should be recommended – namely whether the notice was to remain unaltered,be revoked, or whether there should be a change in the variable factors.  The range of options which may now be the subject of recommendation and declaration under the current statutory regime, it should be noted, stand in contrast to the statutory constraints imposed upon the power of review previously conferred: eg., Minister for Small Business and Consumer Affairs v Companhia Vidraria Santa Marina (1997) 79 FCR 160.

60                                          In circumstances where revocation is an option under consideration it is considered imperative that the question of revocation can only be addressed by reference to (in this case) s 269TG(2). No provision within Division 5 expressly gives content to how the option of revocation is to be resolved.  In the absence of any contrary indication, it is considered inevitable that a recommendation can only be made that an existing dumping measure be revoked “if the anti-dumping measures to which the application relates had not been taken, the Minister would not be entitled to take such measures”.  And the Minister “would not be entitled to take such measures” if he were not (in this case) “satisfied” as to those matters set forth in s 269TG(2).

The Reasoning of the Chief Executive Officer and the Primary Judge

61                                          The most immediately central question dividing the parties at this stage of the argument was whether the Chief Executive Officer had correctly applied the requirements imposed by s 269TG and, thereafter, whether the primary Judge was correct in concluding that the Chief Executive Officer had applied the wrong test.

62                                          It is dangerous to focus too much attention upon any particular part of Report 134 and to attempt to read that discrete part free from the broader context in which it appears. It was common ground that that Report had to be read in a common-sense manner (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 to 276) and that particular parts of the Report had to be read in the broader context of the whole Report.

63                                          Subject to that caution, reference may be made to those parts of the Report where the Chief Executive Officer was addressing the submissions being advanced on behalf of Dow and Qenos and to where the Chief Executive Officer was addressing their submissions made in response to the Statement of Essential Facts (prepared in accordance with s 269ZD).

64                                          Relevantly, Dow sought to focus attention on whether or not exports would cause or be likely to cause material injury.  The Report summarises Dow’s submission in part as follows:

Dow claimed that the exports of LLDPE from SPE were never priced at levels which were ever likely to cause material injury to the Australian industry. Dow further claimed that any injury allegedly sustained by Australian industry could not and cannot be attributed to importations from SPE. Dow considers that measures against importations of LLDPE from SPE are entirely inappropriate and need to be rescinded at the earliest opportunity.

When addressing the submissions of Dow and Qenos, Report 134 expressed the following assessment:

6.2      CUSTOMS ASSESSMENT

In assessing whether measures should be revoked, Customs normally considers a range of factors to form a view on whether dumping and injury would be likely to recur if the measures were revoked. The absence of dumping or export pricing that is above the level of the NIP would be relevant factors but would not, of itself, be persuasive evidence that dumping and injury would not recur if the measures were revoked.

The timing of Dow’s submission, lodged at day 45 of the review, limited Customs’ ability to undertake an extensive examination of issues relevant to whether the measures, as they relate to SPE, should be revoked.

Dow claimed that in the recent past its import pricing and selling prices in the Australian market have been at levels which have not caused injury to the Australian industry, based on its own assessment of the NIP and USP. Customs agrees that these are factors relevant to whether measures should be revoked.

However, Customs notes that dumping is another relevant factor. Customs found that exports to Australia by SPE over the review period were at dumped prices. As the issue of revocation was only raised when the review was significantly advanced, Customs was unable to evaluate and form a view on all other factors relevant to whether the measures should be revoked.

Based on the available evidence, Customs was not satisfied that circumstances exist to recommend that the measures should be revoked as they relate to SPE.

65                                          Although the assessment was that the product was being exported at dumped prices, the issue outstanding remained whether that was causing material injury. The Report returned to this issue when providing its assessment as to the submissions made on behalf of Qenos, Dow and Siam in response to the Statement of Essential Facts. That assessment was in part as follows:

7.2      CUSTOMS’ ASSESSMENT

The anti-dumping legislation provides that, where anti-dumping measures are in place, an affected party may apply for a review of the measures if they consider that, since the factors were last ascertained, one or more of the variable factors has changed. Dow acknowledges the legislative mechanism and commercial rationale for reviewing the variable factors.

The questioning of the need to increase one of the variable factors, the NIP, in view of the Australian industry’s strong performance is, in Customs view, an extension of its submissions that the anti-dumping measures are not necessary and should be revoked. Customs addresses the submissions on revocation below.

On the issue of increasing the NIP, Customs’ view is that, it is appropriate that all variable factors, including the NIP, be revised to the levels observed during the review period.

Customs is mindful of its obligations under Article 11 of the Anti-Dumping Agreement in relation to the revocation of measures. As part of the review, Customs considered whether it should recommend that the anti-dumping measures should be revoked. At the time of the SEF, taking into account the available evidence, Customs was not satisfied that the measures should be revoked.

Attention was drawn to the recent strong performance of the Australian industry in a period when anti-dumping measures were at outdated levels and possibly not affording the Australian industry with any great degree of protection from dumping. In the SEF, Customs stated that it considered dumped imports had, in the review period, a limited effect on the Australian industry’s selling prices and that, therefore, these prices were suitable for establishing a USP. Dow/SPE submits that the finding of a limited effect should allow Customs to be reliably convinced that any allegedly dumped exports by SPE did not cause injury to Qenos.

Dow/SPE further submits that imports from SPE are unlikely to cause material injury to the Australian industry because SPE’s pricing was never found to have been injurious since measures were first imposed over four years ago.

Customs considers the points made by Dow/SPE are legitimate and relevant to whether the measures should be revoked. However, Customs does not agree that the absence of material injury or causal link in the review period (not explicit findings by Customs but reasonable assertions in the circumstances) means that if the measures had not been taken the Minister would not be entitled to impose such measures and on this basis the measures must be revoked.

In Customs’ view, the matter of which it must be satisfied to recommend that the measures be revoked is not whether one or more of the elements for imposing dumping measures (dumping, causal link and material injury) is not present in the review period. Anti-dumping measures often cause exporters to modify their behaviour and are designed to discourage dumping or remedy material injury caused by dumping.

Customs interprets the test for revocation as whether, in the hypothetical situation of measures not being in place, there would now be grounds to impose the measures. In other words, if the measures were removed, is it likely that the exporter or exporters would dump goods and cause material injury to the Australian industry.

In examining this likelihood of recurring dumping and injury, the recent strong performance by the Australian industry is a relevant consideration. However, Customs also notes that the review found that exports by SPE were dumped. On the available evidence Customs could not be satisfied that dumping would not cause material injury if the measures were revoked.

In the SEF, Customs stated that the timing of Dow’s submission limited Customs’ ability to undertake an extensive examination of issues relevant to whether the measures, as they relate to SPE, should be revoked. Dow/SPE rejected this, stating that the review required submissions to be compiled and presented over the Christmas holiday period when staffing resources were limited.

Customs appreciates the difficulties presented by the Christmas period. However, without early advice that an affected party believes there are grounds to revoke the measures, the scope of Customs’ enquiries and the ability of interested parties to defend their interests is reduced.

Customs considered whether the measures should be revoked. However, its examination of the factors relevant to revocation would have been more extensive if Dow had advised Customs, when notified of the review, of its intention to argue for revocation.

Based on the available evidence, Customs is not satisfied that circumstances exist to recommend that measures should be revoked as they relate to SPE or to exporters generally.

8          REVOCATION

In this review, Customs investigations have not revealed any information to suggest that the anti-dumping measures should be revoked in relation to a particular exporter or revoked generally.

Although the conclusion as to causation has to be read in context, the assessment was expressed in terms that:

… On the available evidence, Customs could not be satisfied that dumping would not cause material injury if the measures were revoked.

66                                          It is respectfully considered that the error the Chief Executive Officer committed occurs in the transition from his interpretation of “the test for revocation” to his subsequent examination of “this likelihood of recurring dumping and injury”.  The test, it is considered, is unexceptionally stated and is but a paraphrase of s 269ZC(2)(b)(ii) and (in this case) s 269TG(2).  Section 269ZC(2)(b)(ii) requires consideration to be given to the prospect:

… that, if the anti-dumping measures to which the application relates had not been taken, the Minister would not be entitled to take such measures.

And, when an application such as the present requires consideration of that prospect to be taken into account, s 269TG(2) then requires the Ministerto be satisfied that in those cases where the export price of goods is less than their normal value then:

… because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened …

The error in the application of that test to the facts as found is that the Chief Executive Officer did not make any finding as to whether the dumped prices would cause or be likely to cause material injury.  Rather than making that finding, the Chief Executive Officer made a finding that he could not be satisfied that dumping would not cause material injury. His assessment was that, because he could not be so satisfied, the existing measures should not be revoked.

67                                          Albeit differently expressed, that was the conclusion of the primary Judge. His Honour’s conclusions were expressed as follows:

[92] I am of opinion that the legislative scheme envisages that when the Minister makes a decision under s 289ZDB(1)(a), he or she will ascertain whether and what anti-dumping measures are appropriate and adapted to meet any material injury caused by dumping or threatened by present dumping or dumping that is sufficiently likely to occur if any existing measures were removed or varied.

[93] In Report 134 the CEO assumed that material injury to Qenos had been or was being caused or threatened because of the dumping by Siam. The Report made a perfunctory generalisation that “[a]nti-dumping measures often cause exporters to modify their behaviour and are designed to discourage dumping or remedy material injury caused by dumping” (A39.3). But this did not address the causal link, or indeed the associated element of injury (past, present or threatened) specified in s 269TG(2)(b), except by making that generalisation. It was not applied to what Siam’s dumping had done or might threaten. As the respondents’ admitted in their defence, there was no evidence or other material of any injury to Qenos caused by Siam’s exports.

[94] Given the changes in the market that had made the existing measures irrelevant, the questions for the Minister and (by force of s 269TE(2)) the CEO in preparing the report under s 269ZDA(1)) were:

·    whether or not there was any dumping by Siam;

·    if so, whether or not that dumping at the time of making a decision under s 269ZDB(1)(a) had caused, was causing or was threatening to cause material injury to Qenos that required new anti-dumping measures to be taken and;

·    if so, what were the variable factors that should be adopted to address appropriately the injury or threatened injury caused, or likely to be caused, by the dumping.

Because they failed to ask these questions or answer them, the respondents committed an error of law and made a decision outside the authority conferred by the Act.

68                                          In reaching that conclusion it is not considered that His Honour committed any appellable error.

69                                          That conclusion follows from the terms of s 269ZDA and s 269ZDB and the fact that the submissions presented on the review in this case required genuine consideration to be given to revocation of the existing anti-dumping measures and the necessity for consideration to be given to whether if those measures had not been taken “the Minister would not be entitled to take such measures”. It is unnecessary to consider whether such reliance as His Honour may have placed upon other provisions found elsewhere in Part XVB may also support or dictate the same conclusion.

70                                          It is also unnecessary to resolve a further submission advanced on behalf of the Respondent that it would have been difficult for any conclusion to have been reached that the Australian industry would or could have suffered material injury — given the findings otherwise made by the Chief Executive Officer.  To venture into that area, it is respectfully considered, goes beyond a consideration of the approach in fact adopted in Report 134 and impermissibly ventures into an examination of what findings of fact could have been made had a different approach been pursued.  Such an exercise, if pursued, would impermissibly project this Court into an area of fact finding entrusted by the Legislature to Customs and not this Court.

Non-Injurious Price

71                                          A second error found by the primary Judge to have been committed by the Chief Executive Officer and the Minister arose in respect to the manner in which it had been concluded that “all variable factors, including the NIP, be revised to the levels observed during the review period”.

72                                          It is s 269T(4E) which relevantly defines the expression “variable factors”.  That sub-section provides in part as follows:

In this Act, a reference to variable factors relevant to the review, under Division 5, of anti‑dumping measures taken in respect of goods is a reference:

(a)    if the goods are the subject of a dumping duty notice – to the normal value, export price and non‑injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice; and

(b)    if the goods are the subject of a countervailing duty notice:

(i)      to the amount of countervailable subsidy received in respect of the goods; and

(ii)     to the non-injurious price of the goods;

as ascertained, or last ascertained, by the Minister for the purpose of the notice; and

(c)    if the goods are the subject of an undertaking accepted under section 269TG – to the normal value of the goods, and the non-injurious price of the goods, as indicated by the Minister to the exporter in negotiations relating to the acceptability of the undertaking; and

(d)    if the goods are the subject of an undertaking accepted under section 269TJ – to the countervailable subsidy received in respect of the goods, and the non-injurious price of the goods, as indicated by the Minister to the exporter or to the country of export in negotiations relating to the acceptability of the undertaking.

The expression “non-injurious price” is further defined in s 269TACA.  See also: H. Keith C. Steele, “The Australian Antidumping System”in John H. Jackson and Edwin A. Vermulst (eds.), Antidumping Law and Practice – A Comparative Study (1990) at 272 to 273.

73                                          The “non-injurious price” also assumes relevance by reason of s 8(5A) of the Dumping Duty Act. Sub-sections (5) and (5A) provide as follows:

(5)    The Minister must, by signed notice, direct that the element of interim dumping duty referred to in paragraph (4)(a) in respect of particular goods be ascertained:

(a)     as a proportion of the export price of those particular goods or of the export price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the dumping duty notice, whichever is the greater; or

(b)    by reference to a measure of the quantity of those particular goods; or

(c)     by reference to a combination of a proportion of the kind referred to in paragraph (a) and a measure of the quantity of those particular goods;

and the notice has effect accordingly.

(5A)The Minister must, in exercising his or her powers under subsection (5) in respect of particular goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act, if the non‑injurious price of goods of that kind as ascertained or last ascertained by the Minister for the purposes of the notice is less than the normal value of goods of that kind as so ascertained, or last so ascertained, have regard to the desirability of fixing a lesser amount of duty such that the sum of:

(a)     the export price of goods of that kind as so ascertained or last so ascertained; and

(b)    that lesser duty;

does not exceed that non‑injurious price.

The Minister must therefore have regard to the desirability of fixing a lesser amount of duty such that the sum of the export price and that lesser amount of duty does not exceed the “non-injurious price”.

74                                          Report 134 sets forth the manner in which Customs approached the task of identifying the “non-injurious price” in the present case.

75                                          The Report stated in paragraph 5.1 that it is Customs’ practice “to first establish an unsuppressed selling price”. Its assessment was then explained as follows:

Customs Assessment

Customs approach in establishing USP observes the following hierarchy:

1.      industry selling prices at a time unaffected by dumping.

2.      constructed industry prices – industry cost to make and sell plus profit.

3.      selling prices of undumped imports.

In the original investigation and in previous reviews, Customs established a USP based on the industry’s cost to make and sell plus a rate of profit achieved on a similar product, in the same general category of goods, sold in a market unaffected by dumping. The similar product is an ethylene based product. The cost of the major raw material used in the manufacture of LLDPE, ethylene, has a significant effect on the selling price of LLDPE and also on the similar product.

Customs examined the Australian market to test whether the market for LLDPE, and in particular, the Australian industry’s selling prices were affected by dumping.

Some observations are then set forth in the Report, including the observations that “Qenos’s LLDPE business performed strongly over the review period. Sales volumes and profitability improved. Qenos appears to have been able to adjust its prices to cover any increases in raw material costs”.  The calculations of the “Unsuppressed Selling Price” and the “non-injurious price” are then set forth in Confidential Appendices 4 and 5 respectively.

76                                          The primary Judge was critical of this process of reasoning and the conclusions reached in Report 134.  He referred to s 269ZDA(5) of the Customs Act which provides as follows:

The report to the Minister must include a statement of the CEO’s reasons for any recommendation contained in the report that:

(a)    sets out the material findings of fact on which that recommendation is based; and

(b)    provides particulars of the evidence relied on to support those findings.

77                                          Consistent with his conclusions as to the absence of any assessment as to the goods being sold at dumped price actually causing material injury, the primary Judge likewise concluded that there was an absence of reasoning or consideration of any “causal link” to material injury if goods were sold at the “non-injurious price” set forth in Confidential Appendix 5.  His Honour thus concluded:

[111] In order to set the non-injurious price the CEO and the Minister were required by s 269TACA(a) to consider the minimum price necessary to prevent the injury or the recurrence of the injury referred to in s 269TG(2). That is, they had to determine what level of non-injurious price should be fixed to prevent the dumping by Siam causing or threatening to cause material injury to Qenos. That price would then be used to calculate the dumping duty, if any, to be imposed. The respondents argued that confidential appendix 4 of the Report showed that a new non-injurious price had been set based on a calculation using the unsuppressed selling price and the method outlined in the Report.

[112] The mere fact that the CEO recommended, and the Minister set, a new non-injurious price in the declaration under s 269ZDB(1)(a) did not, of itself, mean that either of them had considered the question of material injury or threat. The reasons in Report 134 do not deal with the topic of material injury caused or threatened by Siam’s dumping.

[113] The non-injurious price had to be calculated by reference to the question of material injury, an assessment of its extent and the establishment of the causal link between dumping and the injury: cp SPP Nemo SA Comercial Exportadora v Minister of State for Small Business and Consumer Affairs [1998] FCA 1627 per Drummond, North and Mansfield JJ (15 December 1998 unreported) at pp 23–24. Their Honours were there dealing with the provisions of the Act before amendments were made in 1998. Even so, I consider that the present statutory scheme, like its predecessor, required the decision-maker to consider the question of material injury in setting the non-injurious price and to give a reasoning process that justified the conclusions on both subjects (injury and price): cp SPP Nemo [1998] FCA 1627 at p 24. This is reinforced by s 269TACA(a) which required the setting of a non-injurious price for goods the subject of a notice under s 269TG(2) to be “the minimum price necessary … to prevent the injury [or] the recurrence of the injury; … referred to in … ” s 269TG(2)(b). The requirements of s 269TACA(a) remain constant (although the manner of addressing material injury may vary for the reasons I have explained above) whether the non-injurious price is that initially set when the notice is given under s 269TG(2), or is affected by a declaration under s 269ZDB(1)(a).

Although Confidential Appendix 5 set forth some calculations, including a quantification of the unsuppressed selling price and quantifications of profit and overseas freight and the like, there was an absence of explanation.  The primary Judge noted ([2009] FCA 837 at [122]) the “absence of a reasoned explanation of how the Minister was entitled to change the variable factors, including the non-injurious price, relating to exports of the product to Australia by Siam … The selection of the figures for these variable factors in the confidential sections of Report 134 had not been explained”.

78                                          In so concluding, no error is discernible in the reasoning of the primary Judge. There is an absence of any explanation as to the “causal link” between setting the non-injurious price at the figure determined by the Minister and any material injury to the Australian industry.

No Evidence of Material Injury

79                                          The Application for an Order of Review as filed on 30 July 2008 by Siam contained the following ground of review:

There was no evidence or other material to justify the decision of the First and Second Respondents in that there was no evidence or other material before them that any injury to the Australian industry was caused by the Applicant’s exports.

80                                          The Appellants’ written submissions fairly assert that it “is not clear whether his Honour accepted this argument”.

81                                          It is not considered that the primary Judge resolved this ground of review. Nor was it necessary for him to have done so.  Any Ground of Appeal directed to this issue must fail.

The Continuation of Anti-Dumping Measures — Report 137

82                                          A dumping notice once published continues in force for five years, unless revoked before the end of that period: s 269TM(1) of the Customs Act.

83                                          Provision is made in Part XVB Division 6A, however, for the continuation of dumping measures. These are the statutory provisions relevant to the decision made by the Minister in August 2008.

84                                          Within Division 6A, s 269ZHA sets out “What this Division is about”. That section provides as follows:

What this Division is about

This Division provides for the CEO to alert interested parties to the anticipated termination of anti‑dumping measures and provide them with an opportunity, before those measures expire, to apply for a continuation of the measures. The Division:

·    sets out the consequences if no application is made;

·    outlines the procedure to be followed by the CEO in dealing with an application and preparing a report for the Minister;

·    empowers the Minister, after consideration of that report, either to decide that the measures will expire or to take steps to ensure the continuation of the measures.

85                                          That continuation process itself starts with a notice published by the Chief Executive Officer in accordance with s 269ZHB(1) not later than 9 months before a particular anti-dumping measure is due to expire informing persons of the date of expiry of the measures and inviting specified persons “to apply within 60 days … for a continuation of those measures”.

86                                          In the present proceeding, a notice was published in accordance with s 269ZHB on 21 December 2007 and an application was made for the continuation of the existing anti-dumping measures. A report was prepared pursuant to s 269ZHF.  That was Report 137. The Minister gave effect to the recommendations contained in that Report by way of a declaration made on 27 August 2008.

87                                          The Appellants contended the learned primary Judge, when upholding the judicial review challenge to the Minister’s August 2008 declaration, erred in his application to the facts of:

·                    s 269ZHF; and

in his construction and application to the facts of:

·                    s 269TAE(2A), (2B) and (2C).

The principal attack upon the primary Judge’s decision was in respect to his application of s 269ZHF to the reasoning of the Chief Executive Officer in Report 137.

Section 269ZHF — “likely to lead”

88                                          In reaching his conclusion that the recommendations made on 20 August 2008 and the declaration made on 27 August 2008 should be set aside in so far as they apply to Siam, the primary Judge set forth both the manner in which he construed and applied s 269ZHF(2) and his analysis of Report 137: [2009] FCA 838.

89                                          Section 269ZHF provides as follows:

Report on application for continuation of anti-dumping measures

(1)    The CEO must, after conducting an inquiry into the continuation of anti‑dumping measures and before the end of the period referred to in paragraph 269ZHD(5)(c) as it applies to those measures, give the Minister a report recommending:

(a)     that the Minister take steps to secure the continuation of the anti‑dumping measures the subject of the application; or

(b)    that the anti‑dumping measures expire on the specified expiry date.

(2)    The CEO must not recommend that the Minister take steps to secure the continuation of the anti‑dumping measures unless the CEO is satisfied that the expiration of the measures would lead, or would be likely to lead, to a continuation of, or a recurrence of, the dumping or subsidisation and the material injury that the anti‑dumping measure is intended to prevent.

(3)    Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the CEO’s report, the CEO:

(a)     must have regard to:

(i)      the application for continuation of the anti‑dumping measures; and

(ii)     any submission relating generally to the continuation of the measures to which the CEO has had regard for the purpose of formulating the statement of essential facts in relation to the continuation of those measures; and

(iii)    that statement of essential facts; and

(iv)   any submission made in response to that statement that is received by Customs within 20 days after the placing of that statement on the public record; and

(b)    may have regard to any other matter that the CEO considers to be relevant to the inquiry.

(4)    The CEO is not obliged to have regard to any submission made in response to the statement of essential facts that is received after the end of the period referred to in subparagraph (3)(a)(iv) if to do so would, in the CEO’s opinion, prevent the timely preparation of the report to the Minister.

(5)    The report to the Minister must include a statement of the CEO’s reasons for any recommendation contained in the report that:

(a)     sets out the material findings of fact on which that recommendation is based; and

(b)    provides particulars of the evidence relied on to support those findings.

Section 269ZHF(2) reflects Article 11.3 of the Implementation Agreement, being the product of the Uruguay Round of the General Agreement on Tariffs and Trade.

90                                          His Honour relevantly concluded that the term “likely” in s 269ZHF(2) meant “more probably than not” and that the “character of the threat” for the purposes of s 269TG(2) is “governed” by s 269TAE(2B): [2009] FCA 838 at [48] and [49].

91                                          Presently left to one side is the question as to whether his reliance upon s 269TAE was misplaced.

92                                          All parties were content to address submissions on the basis that the primary Judge had accurately described the test to be applied when interpreting the word “likely” as he did.

Trade Measures Report No. 137 — Findings as to Likelihood of Injury?

93                                          The learned primary Judge relevantly concluded that “Report 137 did not make a finding that it was likely (i.e. more probable than not) that dumping by Siam would cause material injury to Qenos if the measures expired”: [2009] FCA 838 at [53].

94                                          Regrettably, concurrence cannot be expressed with the conclusion of the learned primary Judge.  The significant point of departure from His Honour’s reasoning is with respect to his application of s 269ZHF to Report 137.

95                                          In reaching his conclusion, the primary Judge was critical of the manner in which the Report was expressed.  In this respect His Honour said at [52]:

After finding that Siam was dumping, the reasoning in Report 137 did not address expressly the question of the likelihood of material injury being caused by that dumping. Rather, it used the expressions “ … imports of [the product] from Thailand, if dumped have the potential to cause injury to the Australian industry producing like goods” and, the commencement of slowing the regional and Australian markets was “likely to create an environment where the Australian industry is more susceptible to injury caused by dumping”. Those “findings” did not address the question of the likelihood of injury. The concepts that the Report used of potential of, and greater susceptibility to, injury do not describe any injury, let alone a material injury that is likely to be caused by dumping if the measures expire. The CEO and Minister did not make a quantitative assessment about, or undertake the practical exercise of assessing, whether material injury to Qenos was likely if the measures expired. The “findings” I have just identified provided no basis for a conclusion that dumping would, or would be likely, to cause material injury to Qenos if the measures expired.

It was the use of the words “potential” and “more susceptible” in the Report which provided the springboard for an argument that the Chief Executive Officer had improperly applied a test of “potential” for injury rather than an assessment as to probability.

96                                          But this emphasis placed by the learned primary Judge upon the selected parts of the Report identified in his reasons for decision, with respect, fails to pay attention to the broader context in which that terminology is employed.  The findings and reasons expressed in Report 137 must be read in a practical and common-sense manner.  So read, it is not considered that the Chief Executive Officer failed to apply a test expressed in terms of likelihood nor that he failed to make a finding that material injury was likely.

97                                          Such a conclusion, it is considered, becomes apparent when those parts of the Report relied upon by the primary Judge are read in their broader context.  That broader context is as follows:

8.2          What is the likelihood of injury continuing or recurring

8.2.1      Economic condition of the Australian industry

Qenos’s LLDPE business improved each year between 2003 and 2007 in terms of profits and profitability. Qenos’s market share has also improved, with the exception of 2007 when imports satisfied a significant increase in demand. Qenos expects imports to return to normal levels in 2008.

Dow submitted that Qenos’s strong performance during a period where the measures did not reflect contemporary pricing supported its view that imports from its supplier, SPE, had not caused injury to Qenos. Dow submitted that this was evidence that the removal of the measures would not be likely to lead to dumping causing injury to Qenos.

Qenos responded by stating that dumped imports had caused a recent decline in its economic performance.

Customs observed that Qenos’s LLDPE business has performed strongly in recent years but that its performance declined late in the period examined, primarily associated with its rotational moulding market sector.

Although Qenos’s LLDPE business has performed strongly in recent years, interested parties have submitted to Customs that the regional and Australian markets have begun to slow. This is likely to create an environment where the Australian industry is more susceptible to injury caused by dumping. The Australian industry’s performance showed some signs of deterioration towards the end of the period examined.

Customs agrees with Dow’s statement that SPE does not export rotational moulding grade LLDPE to Australia. Customs has not attributed Qenos’s decline in this sector to imports from Thailand or identified exports by SPE as the principal cause of the deterioration of Qenos’s performance in the latter part of 2007. However, in Customs view, the decline in the rotational moulding sector is likely to produce increased competition between Qenos and imported LLDPE from Thailand, which Customs considers is likely to be dumped.

Amcor and Qenos provided information on the events that resulted, in 2007, in Qenos’s supply of LLDPE to Amcor’s Kewdale plant in WA being taken over by imports from Thailand. Amcor’s Kewdale plant is a significant user of LLDPE. Qenos pointed to Kewdale as an example of sales lost to dumped Thai imports. Amcor claimed that Qenos had initiated discussions to exit the business in WA and that this should not be seen as sales lost to dumped imports.

In the lead up to Customs completing its report, Amcor and Qenos continued to provide differing perspectives on the circumstances surrounding cessation of Qenos’s supply of LLDPE to Kewdale. Taking into account the information submitted and that Customs has not been able to fully investigate what transpired at Kewdale, Customs has not placed any weight on Qenos’s exiting of supply to the plant in considering whether dumping from Thailand might cause injury to Qenos if the measures expire. On the available evidence, Customs considers that some of the loss of volumes and market share experienced by Qenos in 2007 was a result of its decision in respect of Kewdale. Customs has taken this into account in assessing the likelihood of injury from dumping if the measures are allowed to expire.

Dow stated that Customs had not had regard to the impact of non-dumping factors on any potential injury. In recommending whether measures should be continued, Customs is concerned with whether dumping is likely and, if so, whether the dumping is likely to cause injury. Customs has not attributed any potential injury from other factors to increasing the likelihood of injury from dumping.

When addressing the extent to which one product could be substituted for another in the market (C8 for Qenos produced C6) the Report included the following findings:

8.2.3      Substitutability between products

…

Customs appreciates that, because of their different technical properties, C8 and C6 LLDPE are not perfectly substitutable. However, Customs considers that some end-users might substitute C8 for C6 if the relative pricing made it economically feasible. For example, Amcor submitted that Dow, an importer of LLDPE from Thailand, had a range of LLDPE resins that are substitutable for Qenos grades. Customs remains of the view that imports of LLDPE from Thailand, if dumped, have the potential to cause injury to the Australian industry producing like goods.

The following conclusion was then expressed:

8.2.4      Conclusion on likelihood of material injury

Thailand

…

Although Qenos’s LLDPE business has performed strongly in recent years, interested parties have submitted to Customs that the regional and Australian markets have begun to slow. This is likely to create an environment where the Australian industry is more susceptible to injury caused by dumping. The Australian industry’s performance showed some signs of deterioration towards the end of the period examined.

Customs considers that it is likely that dumped imports from Thailand would cause material injury to the Australian industry if the measures expired.

98                                          Any conclusion as to whether the Report impermissibly failed to address the question of material injury by reference to the likelihood of such injury occurring or failed to make a finding in such terms — as found by the primary Judge — is ultimately a conclusion resting upon a reading of the Report itself.  Senior Counsel for the Appellants rightly disclaimed any proposition that either the form of the heading in the Report or the terminology employed when stating its conclusion could shield the Report from judicial scrutiny.

99                                          So construed, it is not considered that Report 137 failed to properly address the question of material injury.  It is considered that the findings in the Report were findings consistent with the application of an appropriate test.  These conclusions are founded upon:

·                    the heading used in the Report and the terms in which the conclusion on likelihood of material injury is expressed – subject to the necessary qualification that such matters are not determinative;

·                    the repeated occasions on which views are expressed throughout the Report in terms of likelihood; and

·                    the manner in which the term “potential” is used elsewhere in the Report to simply express a view as to the likelihood of an event occurring or the likelihood of injury being occasioned by other forces.

100                                       With great respect to His Honour’s contrary conclusion, his conclusion is based upon too narrow a reading of the Report itself.

101                                       The Appellants’ challenge to the contrary conclusion of the primary Judge is thus upheld.

Section 269TAE

102                                       Separate from his conclusion as to whether s 269ZHF had been correctly addressed in Report 137 were the primary Judge’s conclusions as to the application of s 269TAE.  His Honour relevantly concluded that:

·                    s 269TAE(2B) was not “irrelevant to, or did not operate on a sunset review under Div 6A of Pt XVB” (at paragraph [55]);

·                    “in making his determination under s 269ZHG(1), the Minister had regard to an irrelevant consideration (namely the findings in Report 134 and the notice made under s 269ZDB((1)(a)) in arriving at the conclusion that the measures should be continued under s 269ZHG(1)” (at paragraph [64]);

·                    there was no finding “on the question of whether some identifiable material injury to Qenos more probably than not would occur if the measures expired having regard to the parameters of foreseeability and imminence referred to in s 269TAE(2B)” (at paragraph [67]); and

·                    there was no finding “of what, if any, injury was threatened, on the balance of probabilities, if Siam continued to export the product to Australia at the dumped prices. It was not enough for the CEO and the Minister merely to recite a paraphrase of the test in s 269TAE(2A) but discard it” (at paragraph [79]). 

In so concluding it is again contended by the Appellants that the primary Judge has erred.

103                                       Section 269TAE is a definition provision found within Division 1 of Part XVB of the Customs Act.It defines what is meant by “material injury”.  The introductory words to s 269TAE(1) are as follows:

In determining, for the purposes of section 269TG or 269TJ, whether material injury to an Australian industry has been or is being caused or is threatened or would or might have been caused, or whether the establishment of an Australian industry has been materially hindered, because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A), (2B) and (2C), have regard to: …

The introductory words to s 269TAE(2) are as follows:

In determining, for the purposes of section 269TH or 269TK, whether material injury to an industry in a third country has been or is being caused or is threatened or would or might have been caused because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A), (2B) and (2C), have regard to: …

Sections 269TG, TJ, TH and TK are all provisions within Division 3 of Part XVB.

104                                       Section 269TAE(2A), (2B) and (2C) thereafter refer back to s 269TAE(1) and (2) and provide as follows:

(2A)     In making a determination in relation to the exportation of goods to Australia for the purposes referred to in subsection (1) or (2), the Minister must consider whether any injury to an industry, or hindrance to the establishment of an industry, is being caused or threatened by a factor other than the exportation of those goods such as:

(a)     the volume and prices of imported like goods that are not dumped; or

(b)    the volume and prices of importations of like goods that are not subsidised; or

(c)     contractions in demand or changes in patterns of consumption; or

(d)    restrictive trade practices of, and competition between, foreign and Australian producers of like goods; or

(e)     developments in technology; or

(f)     the export performance and productivity of the Australian industry;

and any such injury or hindrance must not be attributed to the exportation of those goods.

(2B)     In determining:

(a)     for the purposes of subsection (1), whether or not material injury is threatened to an Australian industry; or

(b)    for the purposes of subsection (2), whether or not material injury is threatened to an industry in a third country;

because of the exportation of goods into the Australian market, the Minister must take account only of such changes in circumstances, including changes of a kind determined by the Minister, as would make that injury foreseeable and imminent unless dumping or countervailing measures were imposed.

(2C)     In determining, for the purposes referred to in subsection (1) or (2), the effect of the exportations of goods to Australia from different countries of export, the Minister should consider the cumulative effect of those exportations only if the Minister is satisfied that:

(a)     each of those exportations is the subject of an investigation; and

(b)    either:

(i)      all the investigations of those exportations resulted from applications under section 269TB lodged with the Customs on the same day; or

(ii)     the investigations of those exportations resulted from applications under section 269TB lodged with the Customs on different days but the investigation periods for all the investigations of those exportations overlap significantly; and

(c)     the dumping margin worked out under section 269TACB for the exporter for each of the exportations is at least 2% of the export price or weighted average of export prices used to establish that dumping margin; and

(d)    for each application, the volume of goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period (as defined in subsection 269TDA(17)) from the country of export and dumped is not taken to be negligible for the purposes of subsection 269TDA(3) because of subsection 269TDA(4); and

(e)     it is appropriate to consider the cumulative effect of those exportations, having regard to:

(i)      the conditions of competition between those goods; and

(ii)     the conditions of competition between those goods and like goods that are domestically produced.

105                                       Section 269TAE(1) and (2), it will be noted, confine the application of s 269TAE to ss 269TG and 269TJ and ss 269TH and 269TK respectively. The application of s 269TAE(2A), (2B) or (2C) to the task being undertaken when discharging the functions conferred by s 269ZHF and s 269ZHG is thus not immediately self-evident.

106                                       Nor is the application of s 269TAE to s 269ZHF or s 269ZHG to be assumed.  The relevance of the examination required by s 269TAE(2A) and (2B) may well depend upon the particular facts and circumstances under inquiry.

107                                       It may not be without significance to the interrelationship as between s 269TG (and s 269TAE(1)) and s 269ZHF(2) that Division 3 and Division 6A of Part XVB apply at different stages.  For the purposes of applying s 269TG and imposing anti-dumping measures at the outset, the identification of those considerations set forth in s 269TAE(2B) and (2C) may be more appropriate than when making a recommendation as to whether existing anti-dumping measures should be continued pursuant to s 269ZHF(2).  A consideration of those matters set forth in s 269TAE(2B) and (2C) may be more appropriate at the outset than at that point of time when anti-dumping measures have been in place for some time.  But even when exercising the powers conferred by s 269ZHF, the facts and circumstances of a particular case may make it a not irrelevant exercise to consider those matters also set forth in s 269TAE(2A).  The sharp division sought to be drawn by the Appellants between those different stages at which each of the powers in issue are being exercised may not always be warranted.

108                                       But the resolution of such issues may be left for a future occasion. Just as it has been concluded that it is unnecessary to express any more than a tentative view as to whether or not s 269TG is incorporated as a matter of statutory construction when discharging the functions conferred by s 269ZDA or s 269ZDB, it is similarly unnecessary to express any more concluded view as to the relevance of s 269TAE when exercising the functions conferred by s 269ZHF or s 269ZHG.

An Irrelevant Consideration — Report 134?

109                                       Concurrence is expressed with the conclusion of the primary Judge that Report 134 was vitiated by legal error.

110                                       Building upon that conclusion, the primary Judge further concluded that the reliance upon Report 134 in Report 137 was the taking into account of an irrelevant consideration. The conclusion of the primary Judge was expressed as follows in [2009] FCA 838:

[64] However, Report 137 also relied on the analysis in Report 134 to arrive at non-injurious prices for Siam’s exports to Australia. Relying on that analysis, Report 137 found that imports of the product from Thailand, if dumped, “have the potential to cause injury to Qenos”. I have found in the review judgment that Report 134 provided an insufficient basis in law for the Minister to arrive at a conclusion that the measures should have remained in place. It follows that in making his determination under s 269ZHG(1), the Minister had regard to an irrelevant consideration (namely the findings in Report 134 and the notice made under s 269ZDB((1)(a)) in arriving at the conclusion that the measures should be continued under s 269ZHG(1).

His Honour went on to conclude that “Report 137 did not provide any reasoning process as to why the removal of measures against Siam would be likely to cause material injury to Qenos”: at paragraph [65].

111                                       In preparing Report 137 which was completed in August 2008, Customs clearly had regard to its earlier Report 134 which was published in May 2008.  The May 2008 Report is referred to in the introduction to Report 137, and is again referred to – not surprisingly – in Customs’ account of “Current anti-dumping measures”.

112                                       As at August 2008, reference to the earlier Report would have been inevitable. That earlier Report and its acceptance by the Minister in June 2008 was an integral part of the anti-dumping measures then in place.

113                                       But the reference to Report 134 in Report 137 is not considered to be the taking into account of an “irrelevant consideration”, as was the conclusion of the primary Judge.

114                                       The fact that the primary Judge concluded in August 2009 that the Minister’s declaration made on 23 June 2008 should be set aside does not mean that Report 134 was not a document containing findings and analysis.  The weight to be given to those findings and that analysis when preparing the later Report was a matter for Customs to assess.

115                                       Even if it were to be concluded that the reference to Report 134 in Report 137 did amount to an “irrelevant consideration”, any such error would not itself have vitiated Report 137 and the subsequent Ministerial declaration in August 2008.

Section 269TAE(2A) and (2B) — Material Injury

116                                       Section 269ZHF(2) refers to the Chief Executive Officer having to be “satisfied that the expiration of the measures would lead, or would be likely to lead, to a continuation of, or a recurrence of, the dumping or subsidisation and the material injury that the anti-dumping measure is intended to prevent”.

117                                       The learned primary Judge was clearly of the view that s 269TAE applied to the identification of the “material injury” to which s 269ZHF(2) refers.  His Honour thus analysed the provisions of s 269TAE and concluded in part as follows:

[59] … Each of ss 269TAE(2A) and (2B) expressly refers to the purposes of s 269TAE(1). This reinforces the construction that applies the provisions of s 269TAE to identification of the material injury to which s 269ZHF(2) refers. Under s 269TAE(2B), the Minister is required to take account only of such changes in circumstances (as to which he or she is given a wide power) “ … as would make that injury foreseeable and imminent unless dumping … measures were imposed”.

Earlier His Honour had also said:

[48] I am of opinion that the character of the threat necessary for the purposes of s 269TG(2) should be read consistently with the degree of likelihood necessary to satisfy the criterion in s 269ZHF(2) of being “likely to lead” to the dumping and material injury that an existing measure is intended to prevent. That character is governed by s 269TAE(2B). The threat must be of an injury that is foreseeable and imminent unless dumping measures were imposed. I am satisfied that the word “likely” in s 269ZHF(2) should be interpreted as meaning more probably than not.

It is, with respect, not self-evident what the learned primary Judge was intending to convey when he made such conclusions in this passage.

118                                       There is much to be said, however, for a conclusion that the use of the phrase “material injury” when used in s 269ZHF(2) bears the same meaning as that set forth in Division 1 and s 269TAE.  Division 1 is itself a “Preliminary” division which sets forth a series of definitions to be thereafter applied. And it is “[a] fundamental rule of construction that unless a contrary intention appears the words in a statute are used consistently”: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 at [53], 169 FCR 151 at 160 per Lander J.

119                                       The potential difficulty in the application of s 269TAE to the discharge of the functions in s 269ZHF and s 269ZHG arises, of course, by reason of the express statement in s 269TAE(1) that the section applies “for the purposes of section 269TG or 269TJ” and the express reference in s 269TAE(2) to “the purposes of section 269TH or 269TK”.  The express terms of s 269TAE(1) and (2) may go a long way to expressing a “contrary intention”.

120                                       But the very specificity of the functions targeted by s 269TAE(1) and (2) is at best ambiguous– possibly serving to support an inference that all that the specificity is directed at is the identification of the “material injury” in question.  Or it may support an inference that those particular provisions are directed at the initial task undertaken at the point of time when dumping duties or countervailing duties are being imposed rather than at the subsequent point of time when consideration is being given (for example) to their continuation.

121                                       Section 269TAE(1), by its terms, targets decisions being made under Division 3, being decisions to impose dumping duties (s 269TG) and countervailing duties (s 269TJ); s 269TAE(2), also by its terms, targets decisions being made under Division 3, being decisions to impose third country dumping duties (s 269TH) and third country countervailing duties (s 269TK).  Section 269TAE(1) thus focuses upon “material injury to an Australian industry”; s 269TAE(2) focuses upon “material injury to an industry in a third country”. Having identified the different analyses required, the draftsman of s 269TAE then reverts to matters common to an assessment of material injury to either an Australian industry or a third country in s 269TAE(2A), (2B) and (2C).

122                                       But there is no self-evident reason why, in any given case, the matters to which regard must be had by reason of s 269TAE(1) or (2) – and the subsequent matters set forth in s 269TAE(2A), (2B) and (2C) – may not also be relevant matters to which regard may be had when preparing a report pursuant to s 269ZHF and making a declaration pursuant to s 269ZHG.  The express confinement of the operation of s 269TAE(1) and (2) to the specific sections there mentioned, it is considered, is not necessarily a reason why those provisions may not also be of relevance in discharging the functions set forth in s 269ZHF and s 269ZHG.

123                                       All such difficulties, fortunately, may be left to one side.

124                                       However they may ultimately be resolved, it is with the next conclusion of the learned primary Judge that concurrence cannot be expressed. His Honour concluded:

[65] Report 137 did not provide any reasoning process as to why the removal of measures against Siam would be likely to cause material injury to Qenos. …

[66] … In considering any injury likely to be caused to Qenos based on the evidence of price undercutting, the Minister had to address under s 269TAE(2A) Dow’s and Qenos’ cost to supply their customers at their locations in Australia, any differences in grade and substitutability of the product supplied to or required by the customers, whether instances in confidential appendix 7 were simply the result of competition between Siam, as a foreign, and Qenos, as an Australian, producer of like goods or of some other factor or factors including ones relating to the customers. But, Report 137 did not examine any correlation between the price cutting referred to in confidential appendix 7 and the particular circumstances of any case of price cutting or relate these to the likelihood of material injury to Qenos were the measures to expire.

[67] I am not satisfied that Report 137 suffered from mere looseness in language when it concluded that the factors to which the Minister had regard were likely to create an environment where the Australian industry was “more susceptible to injury caused by dumping”. That was not a finding on the question of whether some identifiable material injury to Qenos more probably than not would occur if the measures expired having regard to the parameters of forseeability and imminence referred to in s 269TAE(2B). The Minister (and the CEO) did not identify any threat of material injury to Qenos that would be likely to be caused by Siam’s dumping that was foreseeable and imminent, if the dumping measures were allowed to expire.

The reliance placed by the primary Judge upon s 269TAE(2A) in identifying those matters not addressed in Report 137 is there self-evident.  Reference may thus be made (by way of example) to the need to make findings as to whether “some other factor or factors” were causing injury and, in s 269TAE(2A), to the need to “consider whether any injury … is being caused … by a factor other than the exportation of those goods”.

125                                       Even if it be presently assumed, however, that s 269TAE(2B) “operate[s] on a sunset review under Div 6A of Pt XVB” ([2009] FCA 838 at [55]), it is not considered that Report 137 failed to address the matters referred to in s 269TAE(2A) or (2B).

126                                       His Honour’s conclusion that Report 137 did not misinterpret s 269ZHF(2) and did not fail to apply that provision correctly to the facts, goes a long way to supporting a conclusion that that Report also satisfactorily addressed s 269TAE(2A) and (2B).  It is considered that the rejection of the reliance placed by the primary Judge upon the Report’s use of the terminology of “susceptibility to injury” also leads to a rejection of the same reliance sought to be placed upon those words by the primary Judge in paragraph [67] of his reasons.

127                                       It is further considered that the balance of Report 137 does address the factors set forth in s 269TAE – assuming that provision is of relevance.  Thus, for example, Customs addressed the broader question, “What is the likelihood of injury continuing or recurring?”  It then went on to consider the “Economic condition of the Australian industry”.

128                                       Rather than failing to address the prospect of injury sources other than exportation, the Report sets out a finding.  The finding made remains a finding within the province of Customs alone to make. Customs then went on to address the “Pricing of imports in Australian market” and “Substitutability between products”. When addressing substitutability, Customs concluded:

… Customs remains of the view that imports of LLDPE from Thailand, if dumped, have the potential to cause injury to the Australian industry producing like goods.

129                                       This was one of the passages relied upon by the primary Judge to conclude that Report 137 did not address the question of likelihood of material injury but merely the prospect of such injury.  That conclusion, however, it is again respectfully considered depends upon too confined a reading of the Report and divorces the assessments made by Customs from the context of the whole Report in which they were made.

Section 269TAE(2C)

130                                       It is not necessary to express any conclusion in respect to the Appellants’ further argument that the primary Judge erred in his reliance upon s 269TAE(2C) when he said:

[68] The respondents argued, correctly in my opinion, that s 269TAE(1) permitted the Minister to have regard to circumstances in relation to the exportation of goods to Australia from the country of export. But, s 269TAE(2C) provided that the Minister should consider the cumulative effect of the exportation of like goods to Australia by different exporters from the same country of export (or from different countries of export) for the purposes referred to in s 269TAE(1) if, having regard to the conditions of competition between, first, those goods on the one hand and, secondly, those same goods and like goods produced domestically, he or she is satisfied that it is appropriate to do so. There was no finding in Report 137 that the CEO or the Minister was so satisfied. Indeed, I find that the CEO and the Minister were not satisfied that it was appropriate to have regard to the cumulative effect of their exports for the purposes of Report 137 or s 269TAE(2C).

131                                       Section 269TAE(2C) is again a provision which refers back to s 269TAE(1) and (2) and thereby (in turn) refers to ss 269TG, 269TJ, 269TH and 269TK.  The same reservations as to whether s 269TAE(2A) and (2B) are of immediate relevance when making all determinations under s 269ZHF and s 269ZHG apply equally to the relevance of s 269TAE(2C).  But, even if s 269TAE(2C) is of present relevance, there nevertheless remains much to be said for the Appellants’ emphasis on the terms of s 269TAE(2C) which refer to exportations “of goods to Australia from different countries of export”.

CONCLUSIONS

132                                       It follows that no appellable error is discernible in His Honour’s reasons for decision expressed in Siam Polyethylene Co Ltd v Minister of State for Home Affairs [2009] FCA 837, 258 ALR 481.

133                                       The appeal in that proceeding is to be dismissed.

134                                       A different conclusion, however, has been reached with respect to His Honour’s second decision in Siam Polyethylene Co Ltd v Minister of State for Home Affairs (No 2) [2009] FCA 838, 258 ALR 515.

135                                       The appeal in that proceeding is to be allowed.

136                                       Given the interrelationship between the two Reports, however, and the subsequent declarations made by the Minister, the parties may wish to give consideration to whether any further orders should be made other than that the former appeal should be dismissed and the latter allowed.

137                                       If any further or different order is sought, a draft of any such proposed further order should be provided within 7 days.

138                                       Given that the Appellants have been unsuccessful in one proceeding but successful in the other, it is considered appropriate that there should be no order as to costs in either appeal.

ORDERS

139                                       The Orders of the Court are:

In NSD 960 of 2009:

1.                  Proceeding NSD 960 of 2009 is stood over to 27 July 2010 at 9:30 am with a view to then making orders disposing of the appeal and any order in respect of the costs before the primary Judge. Any written submissions on costs before the primary Judge to be filed by 23 July 2010.

In NSD 959 of 2009:

1.                  Proceeding NSD 959 of 2009 is stood over to 27 July 2010 at 9:30 am with a view to then making orders disposing of the appeal and any order in respect of the costs before the primary Judge. Any written submissions on costs before the primary Judge to be filed by 23 July 2010.

Associate:

Dated:         13 July 2010