Federal Court of Australia

Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel [2022] FCAFC 4

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or taxed.

3.    There otherwise be no order as to costs.

4.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), to prevent prejudice to the proper administration of justice:

(a)    The unredacted version of the reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of the Court.

(b)    Within 7 days the parties notify the Court upon the appropriateness for publication of the redacted version of the reasons for judgment with which they have been supplied.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS AND O’CALLAGHAN JJ:

1    We have had the benefit of reading Thawley J’s reasons for judgment in draft. We are grateful to him for setting out some of the relevant passages from the reasons of the Anti-Dumping Review Panel (Panel) and the primary judge’s reasons for judgment (PJ), as well as some of the statutory provisions. With respect, we have come to a different view to Thawley J on the following three central matters. First, as to ground 1 of the appeal, we believe that the appellant has failed to demonstrate any appealable error in the primary judge’s reading of relevant parts of the Panel’s reasons, which reading is consistent with the approach required by various authorities, particularly Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. In particular, the primary judge’s conclusion at PJ [59] as to the significance of [46] to [48] of the Panel’s reasons is consistent with the Wu Shan Liang approach. Read fairly and in context, those passages do not disclose reviewable error. Thus ground 1 of the notice of appeal should be dismissed.

2    Secondly, as Mr Lloyd SC (who appeared for the appellant, together with Mr R Scheelings) properly acknowledged at T 38.25, ground 2 “doesn’t add much to anything”. Indeed, if ground 1 of the notice of appeal fails (as we consider it should) so too must ground 2. That is because, as was common ground, the primary judge’s erroneous statement at PJ [77] that there was evidence before the Commission and the Panel regarding the price paid by an unrelated party is immaterial if the Panel otherwise correctly understood and applied its statutory task in respect of s 269TAA(1)(b) of the Customs Act 1901 (Cth), as we believe it did.

3    Thirdly, we consider that the notice of contention should be upheld because the published summary of the Panel’s conference with some of the Commissioner’s staff on 8 May 2020 put the appellant on sufficient notice of the substance of the issues which were discussed at that meeting, taking into account the confidentiality constraints on providing more extensive information. We also respectfully disagree with the significance which Thawley J attaches to s 269ZZY of the Act in determining the content of the Panel’s procedural fairness obligations. It is therefore unnecessary to determine ground 3 of the notice of appeal.

4    Before addressing each of these matters in turn, it is desirable to set out some relevant statutory and factual background matters. Some of these matters have been identified in Thawley J’s reasons for judgment, however, in view of both their importance and complexity it is desirable that we provide our own description and analysis.

Relevant statutory and factual background

5    Part XVB of the Act contains multiple provisions relating to anti-dumping duties. The primary judge accurately described the provisions as “Byzantine”. The provisions total 235 pages.

6    There is an overview of Pt XVB in s 269SM. The overview describes Pt XVB as dealing with the taking of anti-dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry.

7    Division 1A deals with the establishment of the Anti-Dumping Commission and the Commissioner. Divisions 8 and 9 establish an independent panel, called the Review Panel, and provide for the Panel to review a range of decisions by both the Minister and the Commissioner.

8    In simple terms, whether the goods have been dumped requires a comparison between the “export price” of goods exported to Australia and their “normal value”. Those terms are defined in ss 269TAB and 269TAC respectively. Sections 269TAB(1) and (5) provide:

296TAB Export price

(1)    For the purposes of this Part, the export price of any goods exported to Australia is:

(a)    where:

(i)    the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and

(ii)    the purchase of the goods by the importer was an arms length transaction;

the price paid or payable for the goods by the importer, other than any part of that price that represents a charge in respect of the transport of the goods after exportation or in respect of any other matter arising after exportation; or

(b)    where:

(i)    the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and

(ii)    the purchase of the goods by the importer was not an arms length transaction; and

(iii)    the goods are subsequently sold by the importer, in the condition in which they were imported, to a person who is not an associate of the importer;

the price at which the goods were so sold by the importer to that person less the prescribed deductions; or

(c)    in any other case—the price that the Minister determines having regard to all the circumstances of the exportation.

…

(5)    Paragraphs (1)(a) and (b) apply in relation to a purchase of goods by an importer from an exporter whether or not the importer and exporter are associates of each other.

…

9    Section 269TAC(1) provides:

269TAC Normal value of goods

(1)    Subject to this section, for the purposes of this Part, the normal value of any goods exported to Australia is the price paid or payable for like goods sold in the ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter or, if like goods are not so sold by the exporter, by other sellers of like goods.

...

10    It will be noted that the phrase “arms length transaction” appears in both those provisions. Notably there is no statutory definition of that phrase hence it is to be given its ordinary meaning. There is, however, a provision in the form of s 269TAA which provides that, for the purposes of Pt XVB, a purchase or sale of goods shall not be treated as an arms length transaction in three specified circumstances. It is desirable to set out s 269TAA(1), noting that the construction and application of paragraph (b) is at the core of this appeal (emphasis added in body of text):

269TAA Arms length transactions

(1)    For the purposes of this Part, a purchase or sale of goods shall not be treated as an arms length transaction if:

(a)    there is any consideration payable for or in respect of the goods other than their price; or

(b)    the price appears to be influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; or

(c)    in the opinion of the Minister the buyer, or an associate of the buyer, will, subsequent to the purchase or sale, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or any part of the price.

…

11    It is convenient to now describe and summarise additional relevant statutory provisions with reference to the factual background underlying the appeal.

(a) The Commissioner’s termination decisions

12    On 19 February 2019, the appellant lodged a formal application for the imposition of duties on exported power transformers of particular ratings by various companies from the People’s Republic of China. The appellant carries on business in Australia manufacturing and selling like goods. After seeking information from several exporters of the goods to Australia from China, as well as importers and local purchasers of the goods, on 31 January 2020 the Commissioner published a termination report (TER 507). TER 507 explained why the Commissioner had decided to terminate his three investigations into the following matters:

(1)    the investigation in respect of goods exported by ABB Chongqing Transformer Co., Ltd and Siemens Transformer (Jinan) Co., Ltd because those exporters did not export power transformers at dumped prices (see s 269TDA(1)(b)(i));

(2)    the investigation in respect of goods exported by ABB Zhongshan Transformer Co., Ltd and Siemens Transformer (Wuhan) Co., Ltd because the dumping margin was less than two percent (see s 269TDA(1)(b)(ii)); and

(3)    the investigation in respect of goods exported from China by all other exporters because the injury caused to the Australian industry was negligible (see s 269TDA(13)).

13    The appeal relates to the Commissioner’s decisions to terminate the first two investigations only.

(b) Review of the Commissioner’s termination decisions by the Panel

14    Acting under s 269ZZO Item 3, the appellant sought a review by the Panel of the Commissioner’s three termination decisions. As required by ss 269ZZQ(1) and (1A), the review application had to contain a statement setting out the grounds on which the appellant believed each of the Commissioner’s decisions not to be the correct or preferable decision, as well as stating how those grounds supported the making of what the appellant considered to be the correct or preferable decision. The importance of these mandatory requirements is underlined by the fact that the effect of s 269ZZQA(5)(c) is to oblige the Panel (where it has not rejected a review application) to “accept the reviewable grounds and … conduct the review in relation to those grounds and no other grounds …” (emphasis added).

15    The appellant identified four grounds of review in Attachment 2 to its review application. They were summarised by the Panel in its report dated May 2020 (see ADRP Decision No. 122 and 123):

23.    The four grounds identified in Attachment 2 may be summarised as follows:

•    The Commissioner failed to correctly apply s 269TAA(1)(b) and wrongly applied a test of whether the export sales were arms length transactions in fact, when the Commission was required to consider whether the transactions ‘appeared’ to be influenced by the relationship between the parties.

•    The Commission failed to properly inquire whether the transactions appeared to be influenced by the relationship between the parties.

•    The Commission should have had regard to the evidence that transactions between related subsidiaries of multinational power transformer suppliers fell within s 269TAA(1)(b) of the Act and were not, therefore, arms length transactions.

•    The Commission failed to properly assess injury suffered by the applicant and should not have concluded that the injury sustained by the Australian industry was negligible.

16    It is unnecessary to say anything further about the fourth ground as it relates to the third termination decision which is not challenged. The Panel noted at [25] that the first three grounds all go to the proposition that the export sales of goods between related companies are not arms length transactions within s 269TAA(1)(b).

17    As noted by the Panel at [27], the appellant’s central contention was that the Commissioner wrongly determined that sales between related companies were arms length transactions when he should have concluded that those sales were not such transactions within the meaning of s 269TAA(1)(b). The Panel elaborated upon that central contention at [36] (emphasis in original):

The applicant’s position is founded on the fact that the exporters from China and the importers into Australia were, in the cases identified above, related companies. The applicant said that this gave the ‘appearance’ that the price was influenced by the relationship between them or within the group. The TPS Report dealt with the capacity for profit shifting within large multinational groups and the ability of ‘head office’ to influence price. It was said to provide evidence supporting the appearance of influence. The applicant contended that, despite this evidence, the Commissioner did not consider whether the transactions were arms length transactions. The applicant also argued that the Commissioner was concerned with whether the transactions were in fact influenced by the relationship of the parties, rather than whether they appeared to be influenced by the relationship as required by s 269TAA(1)(b).

18    The Panel noted at [37] that there was “some force to some of the applicant’s arguments”. In particular, the Panel found that the Commissioner’s discretion under s 269TAA(1)(b) is more limited than suggested by the Commissioner. In particular, it found that the Commissioner has no residual discretion to treat a transaction as an arms length transaction if the criterion in s 269TAA(1)(b) is satisfied (at [39]). This finding is not challenged by the appellant.

19    The Panel explained why it disagreed with the Commissioner’s approach which was based on the erroneous belief that the Commissioner had to be positively satisfied that a transaction was influenced by the relationship between the parties for s 269TAA(1)(b) to be engaged. Despite their length, it is desirable to set out [33] and [43] to [55] of the Panel’s reasons to understand why the Panel upheld the Commissioner’s decisions to terminate the investigations notwithstanding the erroneous approach taken by the Commissioner (footnotes omitted and noting that the reference to the TPS Report by Ms Smits is to a document which was before the Commissioner but not taken into account by him and in respect of which there is no dispute that the document was properly before the Panel).

33.    Section 269TAA(1) deals with the circumstances in which a transaction is not an arms length transaction. It provides:

[The terms of that sub-section were then set out].

…

43.    Section 269TAA(1)(b) does not require the Commissioner to be satisfied that, as a matter of fact, the export price was influenced by the relationship between the exporter and importer. A transaction may appear to be influenced by the relationship between the parties even if there is not enough evidence to satisfy the Commissioner, on the balance of probabilities, that the transaction was in fact influenced by the relationship. The reference to ‘appears’ in s 269TAA(1) imports a lower standard than would be necessary if the Commissioner was required to be satisfied that, in fact, price was not influenced by the parties’ relationship. The Commissioner must treat a transaction as falling within s 269TAA(1)(b) if it merely ‘appears’ that the price is influenced by the relationship. Consequently, a statement that the Commissioner was not satisfied that the price was (in fact) influenced by the relationship between the parties would not address the statutory criterion.

44.    However, the Commissioner must still act on all the information available to him. If there is some information which gives the appearance of influence and other evidence which establishes that, in fact, the prices were not influenced by the relationship between the parties, the Commissioner is entitled, and indeed obliged, to act on all the information available to him. This is consistent with paragraph 22 of the Explanatory Memorandum. The Minister or Commissioner is to reach a conclusion based on what (all) the available information suggests. Conversely, if there is no evidence from which it ‘appears’ that the price was influenced by the relationship, the Commissioner may treat the transaction as an arms length transaction.

45.    In my opinion, the Commissioner does not fall into error by conducting the investigation with a view to ascertaining whether, in fact, the transaction was influenced by the relationship between the parties. It may be that the inquiries will not enable the Commissioner to reach a positive conclusion about the fact of influence. If, at the end of that inquiry, there was evidence which fell short of that standard, but gave the appearance of influence, the transaction would not be an arms length transaction.

46.    In the present case, the applicant contends that there is information available to the Commissioner which gives the appearance that the sales between the related exporters and importers were ‘influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller’. It pointed to the TPS Report. Ms Smits, the author, has extensive experience working as a consultant in the field of transfer pricing. She was asked the question:

Would prices between relevant related entities (ie importers and exporters) of the following multinational suppliers of power transformers … be influenced by their commercial, structural or other relationship?

Ms Smit opined:

…the price between related parties is invariably influenced by the commercial, structural and other relationships between the entities.

However, Ms Smit also said that the question she was asked:

… is not concerned with whether prices between related entities of the multinational PT suppliers are or are not at a level that would pertain in an arm’s length transaction.

47.    In my opinion, the influence with which s 269TAA(1) is concerned is influence as to price. It is concerned with the appearance of variation from the price that would have been agreed had the sale been negotiated at arms length. Any other effect does not provide a reason why the price agreed between the parties should not be adopted as the export price under s 269TAA(1) or result in the transaction not being used for the determination of the normal value under s 269TAC(1).

48.    I am not, therefore, persuaded, that Ms Smit’s report provides a basis for concluding that the prices ‘appeared’ to be influenced by the relationships between exporters and importers in this case, within s 269TAA(1)(b).

49.    I accept that relationships between the exporters and importers provides an opportunity for the price to be influenced and that this might well lead the Commissioner to scrutinise the transactions more carefully than transactions between unrelated parties. It must be borne in mind, however, that the opportunity and the capacity to influence the price, is not the same thing as actually influencing the price. It does not follow that the appearance of influence, such as that which might exist between related exporters and importers, creates the appearance that the influence has been exercised.

50.    I also note that s 269TAA(1) does not enable the Commissioner to reframe the nature of the commercial relationship between exporter and importer. In the present case, for example, importers did not purchase the goods on their own account, in the hope that customers would approach them for a power transformer. Power transformers are bespoke products. This background would inform the commercial relationship between exporters and importers who were not members of the same corporate group.

51.    The Commissioner referred to the practice identified in the Dumping and Subsidy Manual to identify whether related party transactions are arms length. The practice is to compare the related party transaction to other similar transactions between parties who are not relation. The Commissioner considered that this approach was not possible in this case because the exporters did not sell goods to unrelated parties.

52.    The applicant claimed that, in light of the TPS Report and the difficulties with the method of inquiry outlined in the Manual, the Commissioner failed to make inquiries into whether prices were influenced by the commercial and structural relationships between the related parties. This is not correct. The Commissioner did make inquiries. Documents were obtained from the related parties and the issue raised in verification visits. Information gathered during those inquires is identified in the worksheets prepared in respect of the exporters and importers. The worksheets contained confidential information and were not disclosed to the applicant.

53.    The information provided about the dealings between exporter and importer showed that the details of the arrangements between them varied. In broad terms, [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] (A description of the relationship between exporters and importers — confidential to the importers and the exporters). The sales between exporter and importer were formalised. On occasions, the documentation attributed liability for defects and overruns. One set of documentation even allowed for determination of disputes by an independent arbitrator.

54.    Although the conclusions in the various verification reports were expressed in terms of a lack of evidence to persuade the Commissioner that the export prices were in fact influenced by the relationship between the exporter and importer, the evidence also supports the conclusion that the prices did not appear to be influenced by the relationship of the parties.

55.    For these reasons, I consider that the conclusion reached by the Commissioner in relation to whether the export sales were arms length transactions within s 269TAA(1) was correct. The applicant did not raise any other grounds in respect of the decisions under s 269TDA(1).

20    It will be necessary to return to these passages from the Panel’s reasons because they are at the heart of the appeal. Before doing so, however, it should be noted that [53] of the Panel’s reasons were heavily redacted. An unredacted version of [53] was provided to the appellant late in the trial before the primary judge, as noted by his Honour at [79]. The unredacted version, which summarises some of the information obtained by the Commissioner relating to dealings between exporters and importers remains subject to non-publication orders made by the primary judge on 19 April 2021 (the date of the hearing below).

21    It will be necessary to return to discuss some matters concerning confidentiality constraints because they are relevant to ground 3 of the appeal and the notice of contention.

(c) The judicial review challenge

22    By an amended application dated 1 October 2020, the appellant sought judicial review of the Panel’s decisions affirming the Commissioner’s decisions to terminate the first and second investigations. There were three judicial review grounds. The first was a claim that the Panel’s decisions involved an error of law, were not authorised by the Act or, alternatively, were affected by jurisdictional error. The relevant error was particularised as follows:

In making the Decisions, the Respondent adopted and applied an erroneous construction of s 269TAA(1)(b) of the Customs Act, by construing para (b) as being concerned only with the “appearance of variation from the price that would have been agreed had the sale been negotiated at arms length”.

23    Ground 2 claimed that the Panel erred in failing to have regard to the TPS Report or, alternatively, erred in failing to conclude that that Report provided a basis for concluding that the prices “appeared” to be influenced by the relationships between exporters and importers in this case.

24    Ground 3 was a claim of denial of natural justice in the Panel’s failure to inform the appellant that it had held a conference with the Commissioner’s staff on 8 May 2020 and in not providing the appellant with the further information obtained by the Panel during that conference and which was taken into account in affirming the Commissioner’s termination decisions.

25    We have emphasised the terms of the three grounds of judicial review because of the implications of the statutory limitation on the scope of the review conducted by the Panel imposed by s 269ZZQA(5)(c) of the Act, as outlined at [14] above.

(d) The primary judge’s reasons summarised

26    In relation to ground 1 of the judicial review challenge below, the primary judge noted at PJ [28] that the appellant’s then counsel submitted that the claimed error regarding the construction and application of s 269TAA(1)(b) was revealed at [47] of the Panel’s reasons (see at [19] above). His Honour said at PJ [29]:

Mr Borsky submits that the Panel’s reasoning that s 269TAA(1)(b) is concerned only with an “appearance of variation from the price that would have been agreed had the sale been negotiated at arms length” involves an error of law. The error revealed in that paragraph was a statement of the Panel’s understanding of the legal test. It had then applied that erroneous understanding in its further reasoning. That was so in respect of the Panel’s finding at [55] that the conclusion earlier reached by the Commissioner that the impugned export sales had been arms length transactions was correct. Necessarily it was also so when the Panel had affirmed the Commissioner’s decision on that basis. The Panel’s erroneous construction of the statute had infected both of those conclusions with legal error.

27    The appellant contended below that the correct question posed by the statutory provision “is whether the price of those sales appeared to have been influenced by the relationship between the parties” and that the issue of what might have been the price had those sales been negotiated at arms length was, as a matter of statutory construction, an irrelevant consideration. The appellant’s contention was that if commercial or other relationships appeared to have influenced the price of a transaction, s 269TAA(1)(b) required the Panel to conclude that the sales were not at arms length (see at PJ [30]).

28    His Honour then noted at PJ [31] ff that the parties had taken advantage of an opportunity to provide supplementary written submissions on the question whether any error at [47] of the Panel’s reasons infected the balance of its reasoning and its ultimate conclusion to affirm the Commissioner’s termination decisions. The primary judge summarised the appellant’s supplementary submissions at PJ [34] to [37]. In brief, the appellant contended that the Panel’s statement at [47] should be viewed as reflecting the Panel’s understanding of the proper construction of s 269TAA(1)(b) generally, and not be read as simply reflecting its concerns regarding the TPS Report. The appellant said that this reading of the Panel’s reasons was supported by the transcript of the 8 May 2020 conference.

29    The primary judge rejected ground 1 below on two alternative bases. First, applying the approach in Wu Shan Liang, his Honour said that he was unpersuaded that a fair reading of the Panel’s reasons as a whole “supports an inference that the error the Applicant alleges infects the Panel’s other reasoning so as to be material to the Panel’s ultimate conclusions” (at PJ [44]). His Honour emphasised the importance of the context in which [47] appeared, namely the relevance or otherwise of the TPS Report. It is desirable to set out again PJ [46] to [49] (noting that it is common ground that the closing part of the final sentence of [46] should be read as stating “of itself does not engage the operation of s 269TAA(1)(b)”):

46.    In the present case, the applicant contends that there is information available to the Commissioner which gives the appearance that the sales between the related exporters and importers were ‘influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller’. It pointed to the TPS Report. Ms Smits, the author, has extensive experience working as a consultant in the field of transfer pricing. She was asked the question:

Would prices between relevant related entities (ie importers and exporters) of the following multinational suppliers of power transformers … be influenced by their commercial, structural or other relationship?

Ms Smit opined:

…the price between related parties is invariably influenced by the commercial, structural and other relationships between the entities.

However, Ms Smit also said that the question she was asked:

… is not concerned with whether prices between related entities of the multinational PT suppliers are or are not at a level that would pertain in an arm’s length transaction.

47.    In my opinion, the influence with which s 269TAA(1) is concerned is influence as to price. It is concerned with the appearance of variation from the price that would have been agreed had the sale been negotiated at arms length. Any other effect does not provide a reason why the price agreed between the parties should not be adopted as the export price under s 269TAA(1) or result in the transaction not being used for the determination of the normal value under s 269TAC(1).

48.    I am not, therefore, persuaded, that Ms Smit’s report provides a basis for concluding that the prices ‘appeared’ to be influenced by the relationships between exporters and importers in this case, within s 269TAA(1)(b).

49.    I accept that relationships between the exporters and importers provides an opportunity for the price to be influenced and that this might well lead the Commissioner to scrutinise the transactions more carefully than transactions between unrelated parties. It must be borne in mind, however, that the opportunity and the capacity to influence the price, is not the same thing as actually influencing the price. It does not follow that the appearance of influence, such as that which might exist between related exporters and importers, creates the appearance that the influence has been exercised.

30    His Honour explained, including by reference to [53] of the Panel’s reasons, why he did not accept that the Panel had addressed a legally incorrect question. Rather, his Honour found that the Panel addressed the legally correct question it had earlier identified in its reasons, namely whether the relevant relationships should have appeared to the Commissioner (and on review to the Panel) to have influenced those prices.

31    By way of conclusion, the primary judge explained at PJ [57] to [59] why ground 1 should be rejected on this first basis:

57    The Panel’s decision that there was no appearance of influence is not open to be set aside on the basis of what it states in one paragraph in which, understood in context, it was giving discrete attention only to, and explaining why it had rejected as relevant to its task, the position in the TPS Report which the Applicant had commissioned. There is nothing at all in any of its reasoning as to suggest it was applying an inappropriately narrow lens of analysis.

58    The Court is satisfied that, the Panel’s reasons read fairly, as Mr Tran submits, reflects no more than it having concluded that there was no sound basis on the materials before it for it to differ from the outcome that had earlier been reached by the Commissioner on the same facts. The merits were for the Panel and the Court has no authority to review the merits on the basis of what the Court has concluded to be a chimera.

59    In prudence I should add that I reject the proposition advanced by the Applicant at [9] of its supplementary written submissions. In advancing that submission the Applicant assumes the existence of an error of construction had infected the balance of the Panel’s reasons. The logic is circular. If when read as a whole and without an eye to the establishment of error, the posited flawed reasoning of the Panel is properly to be understood as confined to its discussion of the relevance of the TPS report as the Panel discussed at [46]–[48] that error could not have been, in the facts applying, material to the outcome.

32    From PJ [60] ff the primary judge explained why ground 1 should be rejected even if, contrary to his Honour’s earlier reasoning, it was not a legally irrelevant consideration for the Panel to treat a want of any apparent disconformity between the price for which the goods were actually sold and that which would be otherwise have been the price arrived at in an arms length transaction. Thus his Honour concluded at PJ [78] that there was no reviewable error even if it were assumed that the Panel assessed whether or not there was an appearance of influence by taking into account as a comparator the price at which at arms length transaction would have been made by unrelated parties.

33    This conclusion followed on from the primary judge’s statement at PJ [77] that there was evidence before the Commissioner, which was passed on to the Panel during the 8 May 2020 conference, to the effect that the export prices between the related parties as had been investigated by the Commissioner “was the same for any unrelated or a related party”. It is common ground that there was no evidence of export prices achieved with unrelated parties (see our discussion of ground 2 below).

34    It is convenient to defer summarising the primary judge’s reasons for judgment relating to the natural justice issue until we address ground 3 of the appeal and the notice of contention.

(e) The grounds of appeal

35    There are three grounds of appeal. Ground 1 claims that the primary judge erred in failing to conclude that the Panel had misconstrued and/or misapplied s 269TAA(1) of the Act. The following seven particulars were provided in relation to this ground (emphasis in original):

Particulars

a)    The First Respondent wrongly considered that s 269TAA(1) dealt with the circumstances in which a transaction is not an arms length transaction (P[33]). The provision identifies three criteria that, when satisfied, result in a transaction (whether or not an arms length transaction) being not treated as an arms length transaction for the purposes of Part XVB of the Customs Act.

b)    The First Respondent wrongly considered that s 269TAA provides criteria which, if established, lead to the conclusion that a transaction was not an arms length transaction (P[39]; and see P[45]). The provision identifies three criteria that, when satisfied, result in inter alia arms length transactions being not treated as an arms length transaction for the purposes of Part XVB of the Customs Act.

c)    The First Respondent wrongly considered that s 269TAA(1)(b) was concerned with the appearance of variation from the price that would have been agreed had the sale been negotiated at arms length (P[47]). This construction disregards the fact that s 269TAA(1)(b), in a practical sense, applies only to prices set by arms length negotiations because, if that was not the case, the transactions would not be an arms length transactions even apart from the deeming effect of s 269TAA(1)(b) of the Customs Act.

d)    The First Respondent wrongly considered that, unless evidence of a commercial or other relationship between buyer and seller tends to establish that the sales price appears to have departed from an arms length price, the evidence does not engage s 269TAA(1)(b) of the Customs Act (P[47]-[48]). On a correct view of this provision, evidence of the existence of a relationship between buyer and seller that inevitably influences prices between them is both relevant and cogent, even if not determinative of the criterion in s 269TAA(1)(b) of the Customs Act.

e)    The First Respondent wrongly considered there must be evidence of a relationship both capable of influencing price and that has “actually” influenced the price (away from the arms length transaction price) (P[49], [54]). On a correct view of the Customs Act, the relationship between buyer and seller can affect whether a sale is an “arms length transaction”, as well as whether it is deemed not to be one under s 269TAA(1)(b), subject to evidence removing the appearance of such influence.

f)    The First Respondent wrongly considered to be sufficient inquiries made on behalf of the Anti-Dumping Commissioner into the nature of the relationships and price influence (P[52]). However, these inquiries were made by the Commissioner pursuant to a wrong view of s 269TAA(1)(b) (as more or less accepted by the First Respondent at P[43]). The inquiries that were made, and the evidence pertaining to them before the learned trial judge, serve only to reinforce that a wrong view of the provision was taken by the Commissioner and adopted by the First Respondent (see P[53] and related evidence from conference).

36    Ground 2 claims that the primary judge erred in concluding at PJ [77] that the evidence before the Commissioner (about which the Panel was informed at the 8 May 2020 conference) was to the effect that the export prices that had been achieved as between the related parties which were investigated by the Commissioner was the same for an unrelated or a related party.

37    Ground 3 claims that the primary judge erred in concluding that any failure to afford the appellant procedural fairness did not comprise a material error.

Consideration and determination

(a) Ground 1

38    It is desirable to say something further regarding the proper approach by a Court exercising judicial review jurisdiction in relation to a statement of reasons of the kind provided by the Panel here. As noted above, this was a critical factor in the primary judge’s reasoning with respect to what the appellant claimed was an error at [47] of the Panel’s reasons and which error was said to taint the Panel’s overall approach.

39    It is convenient to repeat Griffiths J’s summary of some of the relevant principles in Australian Conservation Foundation Inc v Minister for the Environment [2016] FCA 1042; 251 FCR 308 at [141] to [151]. We did not understand either party to challenge the correctness of that summary (emphasis in original):

141    The leading authority, of course, is that of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (Wu Shan Liang). In that case, which involved judicial review of three decisions by ministerial delegates concerning the refugee status of three applicants, each of the delegates provided detailed written statements of reasons. Those statements explained why, although it was accepted that each applicant feared punishment for reasons of imputed political opinion if he were returned to China, those fears were not well-founded. Each delegate indicated that he/she considered that certain matters which were relied upon by the applicants were “speculative”, including that if the applicants were returned to a particular part of China they would be subjected to excessively punitive fines which would amount to persecution.

142    Below, the Full Court had set aside the decisions on the basis that the reference to “speculative” and “speculation” in the statements of reasons revealed that the delegates had not applied the “real chance” test in accordance with Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 (Chan) at 413. This conclusion was reached notwithstanding that it acknowledged that the delegate had started and finished with a correct test, but the Full Court regarded the references to “speculative” and “speculation” as demonstrating that the delegate’s assessment had shifted from one of an assessment of “real chance” to an assessment of “balance of probabilities”.

143    On appeal, the following propositions were described by the High Court at 272 as “well settled”:

(a)    the Court should not be concerned with looseness in language nor with unhappy phrasing in the reasons of an administrative decision-maker (citing Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287); and

(b)    the reasons for an administrative decision which is the subject of judicial review “are not to be construed minutely and finally with an eye keenly attuned to the perception of error”.

144    The High Court described (at 272) these propositions as recognising:

the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

145    The Court added that in subjecting a decision about refugee status to judicial review, the Court must “beware” of turning a review of the reasons of the decision-maker upon principles into a reconsideration of the merits of a decision.

146    It was held that the Full Court had fallen into error because of the meaning and significance it attributed to the references in the delegates’ statements of reasons of the word “speculative”. Rather than suggesting that the delegates had misapplied the correct test in their assessment of the future chances of persecution, the High Court concluded (at [43]) that, in the particular context, it was equally the case that the word was used to refer to “the probative force of the material before the delegate”. This meaning would not indicate that the delegates had departed from the Chan test. The Court proceeded on the basis that this construction of the delegates’ reasons was one which was equally available to that found by the Full Court. Evidently, the Court considered it unnecessary to go further and determine whether the alternative meaning was the only meaning. This ambiguity in the proper meaning of “speculative” formed a central part of the Court’s view that the reasons did not disclose reviewable error in the application of the Chan test. The plurality (Brennan CJ, Toohey, McHugh and Gummow JJ) observed at 278:

There is certainly nothing which would suggest such a conclusion in sufficiently strong terms to overcome a properly “beneficial construction” of the delegates’ reasons.

147    It is important to note that the High Court justified the need for a restrained approach in construing an administrator’s statements of reasons by reference to the limited nature of judicial review and the need to avoid a judicial review court straying into an impermissible review of the merits of an administrative decision. This approach to construing statements of reasons has been applied in many subsequent cases involving judicial review of administrative decisions, not confined to decisions relating to refugee status.

148    Understandably, the ACF did not deny the force and relevance of these principles, however, it sought to dilute them to some extent in the particular circumstances of this case by reference to events leading up to the Minister making his fresh decision in October 2015. In particular, the ACF relied upon the fact that the Minister’s earlier decision to approve the project was the subject of litigation which led to the matter having to be reconsidered. The ACF also contended that significance should attach to the fact that the Minister’s decision and statement of reasons must have been the subject of close scrutiny by his lawyers and it was reasonable to assume that legal advice was provided in respect of how those reasons were expressed. The ACF submitted that the following observations of the Full Court in Soliman at [57] supported its position:

Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case. Two factors, in particular, dictate the conclusion that the reasons of the Vice President fail to give any real consideration to the submissions advanced on behalf of Dr Soliman as to mitigating circumstances, namely:

the fact that the findings and reasons provided were written by an experienced, senior member of Fair Work Australia with legal qualifications and a person who had the considerable benefit of written submissions filed by experienced legal practitioners: Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764, 290 ALR 326 at [36] at 337; Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia [2012] FCAFC 114 at [37] per Lander, Flick and Jagot JJ;

and, irrespective of any consideration being given to the qualifications and experience of the person who prepared those findings and reasons:

the fact that any reading of the findings and reasons of the Vice President disclose no real attempt to engage with the submissions being advanced on behalf of Dr Soliman.

The submissions advanced on behalf of Dr Soliman as to mitigating circumstances were not considered by the Vice President. The decision of the Full Bench gives no greater consideration to those submissions. Both the decision of the Vice President and the decision of the Full Bench, it is concluded, should be quashed.

149    Those observations do not provide any material assistance to the ACF’s position. In particular, the circumstances here are quite different from those in Soliman because:

(a)    Here the Minister provided a statement of reasons in respect of an administrative decision made by him based upon information obtained by his Department not only from the proponent, but also from other government agencies and the public, including information supplied by the ACF. This decision-making process is far removed from that in an adversarial hearing before Fair Work Australia under the Workplace Relations Act 1996 (Cth), as in Soliman. The ACF provided the Minister and his Department with various information concerning the assessment and approval of the project. In particular, the ACF wrote to the Department on 27 August 2015 in response to an invitation to provide further material which outlined the ACF’s concerns with the project. The ACF provided a summary of its key issues of concern, including on the topic of environmental impacts. It also provided new evidence in the form of some of the materials which had been adduced in the Land Court proceeding concerning the extent of greenhouse gas emissions caused by the project and likely impacts on the Reef. The ACF submitted that the impacts of climate change on the Reef were of such significance that the Minister should refuse to approve the project. Significantly, and in contrast with the position in Soliman, the ACF did not provide any specific submissions as to how this material should be assessed by the Minister within the particular legal framework of the EPBC Act, including in respect of the operation of specific provisions such as ss 82, 136(2)(e) and 527E which now form the subject of ground 2 of its judicial review application.

(b)    In Soliman, one of the parties had provided detailed legal submissions on the topic of mitigating circumstances which was described by the Full Court as a submission which was “central to a party’s case”. In circumstances where the Vice President made no express reference to those submissions in his written statement of reasons, the Full Court inferred that the submission had not been addressed and this amounted to jurisdictional error.

150    The other two authorities cited by the ACF with a view to diluting or modifying the Wu Shan Liang principles do not take the matter any further. In Sadsad, which involved judicial review of a medical assessor’s assessment (and reasons) under the Motor Accidents Compensation Act 1999 (NSW), the critical issue was whether the medical assessor had properly applied a particular clause in permanent impairment guidelines which were binding on him. In concluding that the medical assessor’s reasons did not disclose the pathway of reasoning by which the assessor applied the relevant clause, Hamill J made the following observations at [47]:

It is one thing to give a “beneficial construction” to the reasons of an administrative decision maker. It is another to fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law (in this case cl 2.5). This accords with the approach taken by Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]:

The Minister urged a ‘beneficial’ construction of the Tribunal's reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked.

151    This limitation on the operation of what, for convenience, might be described as the “beneficial construction principle” should be accepted. But it has no application to the circumstances here because, unlike Sadsad and the judgment of Stone J referred to by Hamill J, the relevant paragraphs of the Minister’s statement of reasons are not devoid of material which indicates the Minister’s path of reasoning. For reasons which will be given shortly, this is the case even though there is no explicit reference in those paragraphs to specific provisions in the EPBC Act, such as s 527E.

40    Having regard to the particular statutory background in this proceeding, it is desirable to make the following additional observations regarding the correct approach on judicial review to reading an administrative decision-maker’s statement of reasons. First, it might be noted that the authoritative observations in Wu Shan Liang on this topic were made in the context of proceedings involving judicial review of statements of reasons voluntarily provided by Ministerial delegates. There was no statutory obligation under the Migration Act 1958 (Cth) to provide such statements in that particular statutory context and it is unclear whether the statements of reasons were provided in response to a request under s 13 of the Administrative Decisions (Judicial Review) Act 1976 (Cth) (ADJR Act). It appears, however, that the question whether the statements of reasons were provided pursuant to a statutory obligation or provided voluntarily did not affect the need to adopt a restrained approach in reviewing the statements of reasons in that case. That is not to say, however, that the overall statutory setting is not important in reviewing a voluntarily provided statement of reasons, a matter to which we will now turn.

41    Secondly, and consistently with the need to pay close attention to the particular statutory setting, it may be noted that the Act here imposes different obligations on the Commissioner and the Panel with respect to providing reasons for particular decisions. Thus, where the Commissioner decides to terminate an investigation under s 269TDA, there is a statutory obligation imposed by s 269TDA(15) for the Commissioner to:

(1)    give “public notice” of that decision;

(2)    ensure that a copy of the public notice is sent to the appellant and other specified persons; and

(3)    inform the appellant of the right to apply to the Panel under Div 9 for a review of the Commissioner’s termination decision.

42    The Commissioner’s obligation to give “public notice” of the termination decision attracts the operation of s 269ZI. It is desirable to set out s 269ZI(1) and (2), which have the effect of obliging the Commissioner to give written reasons for a termination decision, including all material findings of fact or law on which the decision was based (emphasis added):

269ZI Public notice

(1)    If a person or body is required or empowered to give public notice of a decision or determination but the provision requiring or empowering the giving of that notice does not specify where the notice is to be given, it is to be published on the Anti-Dumping Commission’s website.

(2)    If a person or body is required or empowered to give public notice of a decision or determination, whether because of subsection (1) or otherwise, that person or body must:

(a)    set out in the notice particulars of the decision or determination made; and

(b)    set out in the notice, or in a separate report to which the notice refers, the reasons for the decision or determination including all material findings of fact or law on which the decision or determination is based; and

(c)    if a person has a right to have the decision or determination reviewed by another body or referred to another body for review—set out in the notice full particulars of those rights; and

(d)    if the material findings of fact or law are contained in a separate report—ensure that copies of the report are freely available and that the manner of obtaining a copy is set out in the notice.

…

43    This is to be contrasted with the statutory scheme when the Panel finalises a review of the Commissioner’s termination decision under s 269ZZT. Under s 269ZZT(6) the Panel is obliged to publish its decision under s 269ZZT on its website. The Panel is also obliged under s 269ZZI to publish a notice on its website where the Panel proposes to conduct a review. Significantly, however, these obligations are not expressed in terms of giving “public notice” so as to attract the operation of s 269ZI and the requirement to publish reasons for a decision, as is the case with the Commissioner under ss 269TDA(15) and 269ZI(1) and (2) (presumably, an obligation to provide a statement of reasons could arise under s 13 of the ADJR Act, however, it appears that no request under that provision was made here).

44    It is unclear why there is no statutory obligation imposed upon the Panel to publish a statement of reasons in respect of its review decision concerning the Commissioner’s termination decision, as opposed to simply publishing its decision on its website as required by s 269ZZT(6). This is to be contrasted with other parts of the Act which do impose an obligation on the Panel to give reasons for particular decisions. This is the case, for example, with review by the Panel of certain Ministerial decisions as dealt with in Subdiv B of Div 9. In specified circumstances, the Panel must make a report to the Minister on a review conducted under this subdivision. Notably, s 269ZZK(2) imposes an explicit obligation on the Panel to provide a report to the Minister for the Panel’s recommendation (i.e. whether to affirm or revoke the reviewable decision), which report must set out the reasons for the Panel’s recommendation. Presumably the requisite content of the Panel’s reasons will be informed by s 25D of the Acts Interpretation Act 1901 (Cth). Notably, however, there is no similar provision to s 269ZZK(2) where the Panel conducts and finalises a review of the Commissioner’s termination decision under Subdiv C of Div 9.

45    For completeness, it should be noted that even though there is no statutory obligation upon the Panel to give reasons for its decision on a review of the Commissioner’s decision to terminate an investigation, under s 269ZZX the Panel is obliged to maintain a public record concerning an application for a review of a termination decision under Subdiv C, which must contain:

(1)    a copy of the review application;

(2)    if the Panel has sought further information from the review applicant, any such information so given to the Panel; and

(3)    a summary of further information obtained at a conference mentioned in either s 269ZZHA or s 269ZZRA.

46    The Panel is also obliged to make this public record available upon request by an interested person (s 269ZZX(1)(b)).

47    Thirdly, it has been made clear in subsequent High Court authorities that where there is a statutory obligation to provide reasons, in conducting judicial review close consideration must be given to the terms of such a provision. This is reflected, for example, in the following statement by the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ (reaffirming what Gummow J said in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [69] (with whom Heydon and Crennan JJ agreed)) (emphasis added and footnotes omitted):

As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.

48    Another clear illustration of how the particular wording of a statutory provision obliging an administrative decision-maker to provide a statement of reasons for a decision in the context of a judicial review challenge is the High Court’s decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [68]-[69] per McHugh, Gummow and Hayne JJ with reference to the nature and scope of the obligation imposed by s 430 of the Migration Act.

49    For the following reasons, we reject ground 1. The appellant’s arguments in support of this ground are predicated on an approach which involves the Court reading the Panel’s reasons and particular passages therein divorced from the overall context of the reasons, and involves an inappropriate and unduly critical reading of those reasons. The point is well illustrated by the appellant’s criticism of [33] of the Panel’s reasons (which is set out at [19] above). The appellant submitted that the fact that the Panel stated that s 269TAA(1) “deals with the circumstances in which a transaction is not an arms length transaction” indicated that the Panel erroneously considered that the three matters set out in that provision were exhaustive of the circumstances in which a transaction is not an arms length transaction. The appellant’s contention is inconsistent with other parts of the Panel’s reasons. For example, at [38], the Panel referred to the Commissioner’s report which explicitly acknowledged that even if none of the circumstances in s 269TAA(1) existed, it was still open to the Commissioner to examine relevant information in order to determine whether or not there had been an arms length transaction. This necessarily implied that a determination could be made that a purchase or sale is not an arms length transaction in circumstances apart from those identified in s 269TAA(1). Moreover, at [44] of the Panel’s reasons, it was acknowledged that even where there is no evidence from which it appears that the price was influenced by the parties’ relationship, the Commissioner may treat the transaction as an arms length transaction.

50    Similarly, the appellant’s challenge based on the wording of [47] of the Panel’s reasons is inconsistent with the Wu Shan Liang approach. The statements in [47] have to be read fairly and in the context not only of the Panel’s reasons as a whole, but [46] to [48] in particular (see [19] above), which provide the immediate context for those statements. When the statements are read in context and not in isolation it is apparent that the Panel was assessing whether the TPS Report alone established the appearance of influence, which the appellant had contended in its submissions to the Panel. Thus when the Panel stated at [48] that the TPS Report did not provide a basis for concluding that the prices “‘appeared’ to be influenced” by the related parties’ relationships for the purpose of s 269TAA(1)(b), the Panel was simply responding to this aspect of the appellant’s case and not making a sweeping statement of principle as to the potential relevance of evidence concerning the existence of a relationship between a buyer and seller and its effect on price. The TPS Report constituted but one part of the evidence which was before the Panel and it was for the Panel to determine the weight and effect of the TPS Report.

51    In addition, we consider that the appellant’s primary focus on the wording of [47] of the Panel’s reasons, substantially in isolation from the balance of those reasons, fails to give effect to the need to read the reasons as a whole and not on an assumption that the reasoning is clinically sequential or compartmentalised in individual pods. As Jagot J succinctly and correctly stated in Minister for Immigration and Border Protection v Tran [2015] FCA 546; 232 FCR 540 at [24] (emphasis added):

… First, reasons are to be read as a whole. Second, reasons are to be read fairly. Third, reasons are not to be read as if each paragraph is self-contained and necessarily sequential …

52    When the Panel’s reasons are read fairly and as a whole, the appellant’s contention that the Panel erred because it considered that there must be evidence of actual influence on price for it not to be an arms length transaction must also be rejected. The Panel clearly stated at [43] that s 269TAA(1)(b) does not require the Commissioner to be satisfied that, as a matter of fact, the export price was influenced by the relationship between the exporter and importer. Similarly, at [49] and [54] of its reasons, the Panel explicitly acknowledged that the core issue was one of the appearance of influence, and not actual influence. When the Panel’s reasons are read fairly and as a whole they do not reveal any reviewable error involving misconstruction or misapplication of the relevant statutory provision.

53    Nor do we accept the appellant’s contention that s 269TAA(1)(b) operates so as to treat transactions that “are arms length transactions as if they were not” (see AS at [10]). In our view, the provision has a broader operation. Whether or not particular transactions are or are not arms length transactions within the ordinary meaning of that phrase, the provision requires that they not be treated as arms length transactions. In other words, the provision may operate to require a particular transaction to be treated as not being an arms length transaction whether or not it otherwise would have met that description.

54    We also reject any claim by the appellant that the transcript of the 8 May 2020 conference supports its contentions in relation to ground 1 of the appeal. We repeat and adopt what Griffiths J said on this topic in Kelly v Australian Postal Corporation [2015] FCA 1064 at [52] and [53]:

52    As noted above, in support of its appeal, the applicant placed particular emphasis on the apparent inconsistency between certain remarks made by the AAT in the course of the hearing and its decision to prefer Dr Smith’s evidence to Dr Parsonage’s. Considerable caution must be exercised in using a transcript for the purpose advanced by the applicant here. In WZAQU at [30] Flick J made the following obiter observations regarding the limited significance of the transcript in construing the reasons for an administrative decision:

Whether or not the transcript of the interview may be taken into account when construing the reasons for the recommendation of the Independent Protection Assessor may be left unresolved. A transcript of proceedings may unquestionably be relied upon to prove that claims were in fact advanced and to prove the nature and ambit of those claims. Reference to the transcript of November 2011 could thus be made to give content to the claims advanced by the Appellant, although the nature of those claims is in any event largely made apparent from paragraphs [40] to [42] of the reasons for decision. But considerable reservation is expressed as to whether reference to the transcript may also be made for the purpose of construing what was intended to be conveyed by paragraph [98]. It has been concluded by the High Court that the transcript of a proceeding forms no part of the “record” when seeking certiorari to correct error of law on the face of the record: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 180-181 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Whether the same considerations which led to that conclusion are apposite to considering whether a transcript can be relied upon to construe reasons for an administrative decision can also be left unresolved. But that which is common to both is a concern as to whether recourse to a transcript would only encourage parties seeking to impugn or support (or supplement) a statement of reasons by scouring the transcript with a view to minutely discerning differences between the transcript and reasons. To do so may only encourage impermissible reliance upon thoughts or queries raised during the course of a hearing which are only later abandoned at that stage when reasons are being prepared. Even if recourse is made to the transcript in the present proceeding, that transcript provides no assistance - not surprisingly - in construing what was intended to be conveyed by paragraph [98].

53    I respectfully agree with those observations and consider that they have particular application here. In the circumstances here, the reasons given by the AAT for its decision, including its preference for Dr Smith’s evidence over that of Dr Parsonage, must be the central focus in the appeal. As Flick J commented, parties should not be encouraged to pour over the transcript with a view to identifying differences between the transcript and reasons. The reality often is that a member of a tribunal (and, for that matter, a court) may make observations or raise issues for comment during the course of the hearing not in any concluded fashion but rather to test a tentative proposition which may later not crystallise in the decision-maker’s ultimate decision, including in the reasons for that decision.

55    Even if it is assumed that the transcript corroborates the Commissioner’s error, it is difficult to see how the transcript can have any relevance to judicial review of the Panel’s reasons, which record the Panel’s appreciation that certain aspects of the Commissioner’s approach were incorrect and were not repeated by the Panel.

56    The Panel did not err in approaching the question whether s 269TAA(1)(b) applied on the basis of whether the whole of the evidence was relevant in ascertaining whether or not there was an appearance of influence on price arising from the commercial or related relationship between related parties. That is a legally permissible approach to assessing the effect on price of the relevant parties’ relationship. There was no legal error in the Panel looking at all the relevant evidence and circumstances, including the particular practices and policies and the manner in which pricing was determined by the relevant parties, in determining whether or not the relationship between the exporter and the importer appeared to influence the price. The material or information which is potentially relevant to this assessment need not include a comparison between the price of unrelated parties’ sales. The reference in [47] of the Panel’s reasons to s 269TAA(1) being concerned with “the appearance of variation from the price that would have been agreed had the sale been negotiated at arms length” when read fairly, does not mean that the Panel proceeded on the basis that, for there to be the requisite appearance of influence on price of a commercial or other relationship it was necessary for the decision-maker to determine, by way of a counterfactual, the price that would have been agreed between unrelated parties. Any other reading cannot be reconciled with the fact that the Panel was well aware that there was no evidence before it relating to prices between unrelated entities (see, for example, the final sentence of [51] and the Panel’s reference in [52] to the Commissioner’s inquiries involving documents being obtained from related parties).

57    For the purposes of s 269TAA(1)(b), the assessment must be directed to the relevant statutory question, namely whether there is an appearance of the price having been influenced by the commercial or other relationships between the buyer (or an associate) and the seller (or an associate). That is the approach taken by the Panel. No appealable error has been established in relation to the primary judge’s analysis and conclusion rejecting ground 1 of the judicial review application.

58    Finally, as pointed out by the second and third respondents in the appeal, the appellant’s presentation of ground 1 of the appeal involves the following significant changes in the case it advanced below:

(a)    having accepted the accuracy of the Panel’s reasons at [39] and [43]-[45] at the trial, the appellant now challenges those passages;

(b)    the appellant did not contend at trial that [33] of the Panel’s reasons contains a misconstruction of the Act; and

(c)    the appellant appears to have resurrected a proposition which it advanced before both the Commissioner and the Panel but explicitly disavowed at the trial (see PJ [46]), namely whether the fact that there were related parties is sufficient of itself to satisfy the “appearance” standard in s 269TAA(1)(b).

59    In elaboration of paragraph (c) immediately above, there appears to have been some internal tension in the oral presentation of the appellant’s case on this matter in the appeal. On the one hand, senior counsel stated that the appellant accepted that “just because there’s some evidence which shows there’s appearance [of price influence] does not necessarily engage the provision”. He added that the appellant accepted that “while there might be some evidence giving rise to such an appearance, there may yet be other evidence of a sufficiently strong nature to remove that appearance”. Shortly thereafter, however, senior counsel said that it was the appellant’s submission “that evidence that a buyer and seller are part of a multinational group would give rise to an inference that prices are influenced by that relationship”. The appellant’s position was that, having regard to the TPS Report, the Panel should have found that evidence as establishing the requisite appearance of price influence and then considered whether there was other evidence which displaced that inference. In our view, the Panel did not err in adopting an approach which involved consideration of all the relevant evidence bearing upon the issue of appearance, rather than adopting the appellant’s segmented or sequential approach.

(b) Ground 2

60    As noted above, as Mr Lloyd SC candidly acknowledged, this ground adds nothing to ground 1. The outcome of ground 2 is necessarily tied to the outcome of ground 1. Accordingly, ground 2 should also be rejected, consistently with our conclusion regarding ground 1.

(c) Ground 3 and the notice of contention

61    As noted above, ground 3 challenges the primary judge’s finding that, although the Panel owed procedural fairness obligations to the appellant, including in relation to the information the Panel received in a conference held on 8 May 2020 with some of the Commissioner’s staff, the primary judge erred in concluding that any failure to accord procedural fairness was not a material error.

62    The Panel’s notice of contention, if upheld, would render it unnecessary to determine ground 3 of the appeal. That is because the Panel challenges the primary judge’s finding that the Panel failed to comply with procedural fairness requirements by holding the secret conference and not disclosing the substance of the information to the appellant with an opportunity to comment. By its notice of contention, the Panel claimed that the primary judge should have found that there was no procedural unfairness because:

(1)    the statutory scheme for review of reviewable decisions by the Panel under Subdiv C of Div 9 of Pt XVB is exhaustive and excluded procedural fairness requirements; and/or

(2)    the appellant was not deprived of any opportunity to make submissions or provide information to the Panel, thus it suffered no practical injustice.

63    It is unnecessary in this proceeding to determine whether or not the procedures set out in the relevant statutory scheme were exhaustive and excluded procedural fairness requirements. That is because, assuming for the sake of argument that procedural fairness requirements were owed to the appellant, the primary judge erred in finding that they had been breached. With respect, the primary judge’s error stems from the constraints imposed upon procedural fairness requirements by the confidential nature of the information provided to the Panel at the conference. Prior to finalising its review, the Panel did in fact publish a summary of the conference, while not disclosing any confidential information.

64    It is well settled that procedural fairness requirements must bend where confidential information is involved. As Brennan J said in Kioa v West [1985] HCA 81; 159 CLR 550 at 628-629 (emphasis added and footnotes omitted):

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya; Ridge v. Baldwin per Lord Morris; De Verteuil v. Knaggs. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. …

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. …

65    In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88, the question arose whether procedural fairness required the Refugee Review Tribunal to disclose to a protection visa applicant the fact that it had received an unsolicited letter in which the author made certain allegations against the visa applicant. The High Court upheld the applicant’s claim that he had been denied procedural fairness in not being told the substance of the allegations made in the letter. The High Court made clear, however, that procedural fairness did not go so far as to require the Tribunal to provide a full copy of the letter to the visa applicant or to disclose any information that may have revealed the identity of the author. The Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) said at [25] (footnote omitted and emphasis added):

The existence of that public interest is not to be understood as requiring the conclusion that there is an absolute rule against an administrative decision‑maker disclosing to a person, whose interests may be affected by the decision that is to be made, information that has been supplied by an informer. Nor does it necessarily mean that there is an absolute rule against disclosing the identity of an informer to such a person. It is neither necessary nor appropriate to attempt to state some all‑encompassing rules about how administrative decision‑makers should deal with information supplied in this way. Not least is that because use of the expression “informer” in the context of administrative decision‑making not only does not reveal what kind of information is conveyed by the informant, but also does not reveal what relevance the information may have to the decision that is to be made. The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case.

66    The Court added at [29] that procedural fairness requirements would have been met if the Tribunal had told the visa applicant the substance of the allegations made in the letter, without disclosing the identity of the author. The Court said that this procedure “would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the “problem of confidentiality””.

67    In the present proceeding, following the conference on 8 May 2020 and prior to finalising its review, the Panel published a document entitled “ADRP Conference Summary”. This summary, which was published at large and was available to the appellant, noted that the purpose of the conference was to obtain information in relation to the Panel’s review concerning power transformers exported from China. It stated that the conference was held pursuant to s 269ZZRA of the Act. Under the heading “Discussion”, the following information was disclosed regarding the content of the conference (“ADC” refers to the Anti-Dumping Commissioner):

1.    The representatives of the ADC provided details of the ways in which the price of the sales between related exporters and importers was determined and the assessment of the arms length nature of those transactions.

2.    The ADC provided further details of the ownership structure of ABB Chongqing and Changzhou Toshiba Co., Ltd. The ADC representatives provided information about profitability levels.

3.    The ADC representatives provided details about the materials obtained by them during the course of the investigation in relation to the decisions by the purchasers to select the successful tenderers.

4.    The details of the information provided was confidential to the exporters, importers and the applicant.

68    In our respectful view, the procedure adopted by the Panel had the effect of disclosing the substance of the conference, without disclosing the details of information passed on by the Commissioner’s staff to the Panel which was commercial-in-confidence. It was a procedure which, in the particular circumstances, put the appellant and other interested parties on notice as to the issues which were discussed. It was open to the appellant to provide to the Panel prior to it finalising its decision whatever submissions it wished arising from the ADRP Conference Summary in respect to those issues. There was no procedural unfairness.

69    Although in a different statutory context, the position here is similar to Jaffarie v Director-General of Security [2014] FCAFC 102; 226 FCR 505, in which the Full Court rejected a claim of procedural unfairness in relation to a visa cancellation decision. In that case, the ground of complaint was the confined nature of information disclosed in the “Unclassified Reasons” furnished by the Australian Security Intelligence Organisation to the applicant, as compared to the “Classified Reasons” relied upon by the Minister for Immigration and Citizenship in cancelling the applicant’s visa on character grounds. At [110]-[111], Flick and Perram JJ stated (emphasis added):

110    The content of the rules of natural justice or procedural fairness, where those rules apply, is infinitely variable and must necessarily take into account the statutory context in question. And, in the present context, “whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context“: Habib v Director-General of Security [2009] FCAFC 48 at [77]; (2009) 175 FCR 411 at 430 per Black CJ, Ryan and Lander JJ.

111    The touchstone of present relevance is whether enough information had been disclosed to Mr Jaffarie in the “Unclassified Reasons” to enable him to make meaningful submissions. The mere fact that more information may have been made available to him during the course of the present hearing does not necessarily say anything as to whether the initial disclosure in the “Unclassified Reasons” was sufficient to afford procedural fairness.

70    The appellant made clear in its written reply submissions that it did not contend that it should have been invited to the conference. It did contend, however, that even if some of the information conveyed during the conference was properly characterised as confidential, it should nevertheless have been made available to the appellant in “sufficient detail to allow a reasonable understanding of the substance of the information”, citing s 269ZZY(2)(a). That provision deals with confidential and sensitive commercial information and is in the following terms:

269ZZY Confidential and sensitive commercial information

(1)    To the extent that information provided to the Panel by a person is claimed by the person to be:

(a)    confidential; or

(b)    information whose publication would adversely affect a person’s business or commercial interest;

the person giving that information must, at the time the information is given to the Panel, also give a summary of that information to the Panel for inclusion in the public record maintained under section 269ZZX.

(2)    The summary must:

(a)    contain sufficient detail to allow a reasonable understanding of the substance of the information; but

(b)    does not breach the confidentiality or adversely affect the interests concerned.

Note:    For the consequences of failing to comply with subsection (1), see sections 269ZZH and 269ZZR and subsection 269ZZK(5).

71    In our respectful view, there are two difficulties with the appellant’s contention. The first is that, on its proper construction, this provision has no application to information provided by the Commissioner to the Panel in the course of a conference held under s 269ZZRA. That provision has a wider operation than s 269ZZRB which deals specifically with the Panel’s power to seek further information from the Commissioner in relation to information that was before the Commissioner when the Commissioner made the reviewable decision. The broader power in s 269ZZRA (which the Panel explicitly relied upon in respect of the 8 May 2020 conference) empowers the Panel at any time after receiving a review application, to hold a conference of such persons or bodies as it considers appropriate for the purpose of obtaining further information in relation to the application or review.

72    The Note at the bottom of s 269ZZY supports the view that that provision does not apply to information obtained by the Panel from the Commissioner in a conference conducted under s 269ZZRA.

73    The provisions referred to in the Note are relevantly as follows:

269ZZH Rejection of application—failure to provide summary of confidential information

The Review Panel must reject an application if:

(a)    the applicant in respect of the application claims that information included in it is confidential or is information whose publication would adversely affect a person’s business or commercial interest; and

(b)    the applicant fails to give a summary of that information to the Review Panel in accordance with section 269ZZY.

…

269ZZK The review

…

(5)    The Review Panel must not have regard to a submission under subsection (4) if:

(a)    the person giving the submission claims that information included in it is confidential or is information whose publication would adversely affect a person’s business or commercial interest; and

(b)    the person fails to give a summary of that information to the Review Panel in accordance with section 269ZZY.

…

269ZZR Rejection of application for review of termination decision

The Review Panel must reject an application for a review of a termination decision if:

(a)     the applicant in respect of the application claims that information included in it is confidential or is information whose publication would adversely affect a person’s business or commercial interest; and

(b)    the applicant fails to give a summary of that information to the Review Panel in accordance with section 269ZZY.

74    It is notable that the first two of the three statutory provisions specifically referred to in the Note (i.e. ss 269ZZH and 269ZZK(5)) are to be found in Subdiv B of Div 9, which relates to the Panel’s review of certain Ministerial decisions and not review of any decision by the Commissioner. While the third statutory provision (i.e. s 269ZZR) is to be found in Subdiv C of Div 9 (which relates to the Panel’s review of decisions by the Commissioner), in its own terms that provision focusses upon the failure of the review applicant to provide a summary of confidential information. It may be inferred from these matters that s 269ZZY has no application to information provided by the Commissioner to the Panel in the course of a conference held under s 269ZZRA.

75    The second difficulty with the appellant’s reliance on s 269ZZY is that, even if it did apply to information provided by the Commissioner’s staff to the Panel in the course of the conference, non-compliance with the provision would not invalidate the Panel’s decision having regard to the terms of the Note and what was said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91] per McHugh, Gummow, Kirby and Hayne JJ.

76    Finally, the appellant also contended that, in determining the content of procedural fairness, it was relevant to take into account material statutory provisions, which it said included ss 269ZU(1) and (2)(a). It is well established that careful consideration needs to be given to the relevant statutory framework in determining what procedural fairness requires in the exercise of a power under that framework (see, for example, Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504 per Kitto J and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26]).

77    The particular statutory provisions cited by the appellant are as follows:

269ZU Panel may supply information

(1)    Subject to this section, the Panel may supply information (including personal information) received by the Panel under this Act to a person.

(2)    The Panel or a person whose services are being made available to the Panel under section 269ZTD must not:

(a)    except for the purposes of this Act, supply information (other than personal information) to a person if the supplying of the information would constitute a breach of confidence; and

…

78    These provisions do not assist the appellant. Section 269ZU confers a discretionary power on the Panel to supply information received by it under the Act to a person. The prohibition imposed by s 269ZU(2)(a) on the Panel supplying to a person information which would constitute a breach of confidence except for the purposes of the Act, does not impose an obligation on the Panel to supply information in breach of confidence for the purposes of the Act. Subsection 269ZU(2)(a) imposes a prohibition, not a duty, relating to the supply of information.

79    For completeness, it should be noted again that it was only during the course of the hearing below that the appellant was provided with an unredacted copy of [53] of the Panel’s reasons for decision. Those redactions related to some of the information obtained by the Panel during the conference. Moreover, the transcript of that conference was not made available to the appellant and remains confidential (see PJ [20] and [79]). It is unclear why the Panel decided, during the course of the hearing below, in effect, to waive confidentiality in respect of the redacted parts of [53]. In any event, that decision does not derogate from the fact that it was reasonably open to the Panel to take the view that the redacted parts of [53] were commercial-in-confidence at the time the Panel’s reasons were published.

80    Accordingly, the notice of contention should be upheld.

Conclusion

81    For these reasons, we would dismiss the appeal and uphold the notice of contention. The appellant should pay the Panel’s costs of and incidental to the appeal. The other respondents did not seek costs in relation to their limited participation in the appeal.

Associate:

Dated:    21 January 2022

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

82    This an appeal from orders made by the primary judge dismissing the appellant’s (Wilson Transformer Company Pty Ltd’s) application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or alternatively under s 39B of the Judiciary Act 1903 (Cth). Wilson sought judicial review of a determination of the Anti-Dumping Review Panel which affirmed decisions of the Commissioner of the Anti-Dumping Commission to terminate anti-dumping investigations in so far as they related to ABB Chongqing Transformer Co Ltd, Siemens Transformer (Jinan) Co Ltd and Siemens Transformer (Wuhan) Co Ltd.

LEGISLATIVE AND FACTUAL BACKGROUND

83    Part XVB of the Customs Act 1901 (Cth) (the Customs Act) contains provisions relating to anti-dumping duties. Section 269SM(1) explains:

269SM Overview of Part

(1)     This Part deals with the taking of anti-dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry. Those measures might consist of the publication of a dumping duty notice or a countervailing duty notice or the acceptance of an undertaking on conditions that make it unnecessary to publish such a notice.

84    Division 2 of Part XVB provides a regime for the Commissioner to consider anti-dumping matters. Section 269TBA explains:

269TBA What this Division is about

This Division:

•    sets out the requirements for making applications for the publication of dumping duty notices and countervailing duty notices;

•    sets out the procedures to be followed, and the matters to be considered, by the Commissioner in conducting investigations in relation to goods covered by such applications, for the purpose of making a report to the Minister;

•    empowers the Commonwealth, in certain cases, to take securities in respect of interim duty that may become payable, in order to prevent injury to Australian industry while such investigations continue;

•    sets out the circumstances in which the Commissioner must terminate such investigations.

85    In Division 2, s 269TB(1) provides for the making of an application, lodged with the Commissioner, to request the Minister to publish a dumping duty notice. Section 269TB(1) provides:

269TB Application for action under Dumping Duty Act

(1)     Where:

(a)      a consignment of goods:

(i)    has been imported into Australia;

(ii)    is likely to be imported into Australia; or

(iii)     may be imported into Australia, being like goods to goods to which subparagraph (i) or (ii) applies;

(b)      there is, or may be established, an Australian industry producing like goods; and

(c)    a person believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;

that person may, by application in writing lodged with the Commissioner, request that the Minister publish that notice in respect of the goods in the consignment.

86    Wilson lodged an application under s 269TB(1) with the Commissioner in February 2019. This requested that the Minister publish a dumping duty notice in respect of power transformers exported from the People’s Republic of China. The Commissioner initiated Investigation No 507 into that alleged dumping.

87    The Minister may publish a dumping notice under s 269TG if certain conditions are satisfied. The first central issue is whether the “export price” of goods was less than the “normal value” of goods: ss 269TG(1)(a) and (2)(a). If the answer is “yes”, the second central issue is whether that has resulted in “material injury” to an Australian industry producing “like goods” or the establishment of such an industry has been or might be “materially hindered”: ss 269TG(1)(b)(i) and (2)(b).

88    Centrally to grounds one and two of this appeal, s 269TAB(1) provides for three ways in which the “export price” may be determined. It provides:

269TAB Export price

(1)    For the purposes of this Part, the export price of any goods exported to Australia is:

(a)    where:

(i)    the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and

(ii)    the purchase of the goods by the importer was an arms length transaction;

the price paid or payable for the goods by the importer, other than any part of that price that represents a charge in respect of the transport of the goods after exportation or in respect of any other matter arising after exportation; or

(b)    where:

(i)    the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and

(ii)    the purchase of the goods by the importer was not an arms length transaction; and

(iii)    the goods are subsequently sold by the importer, in the condition in which they were imported, to a person who is not an associate of the importer;

the price at which the goods were so sold by the importer to that person less the prescribed deductions; or

(c)    in any other case—the price that the Minister determines having regard to all the circumstances of the exportation.

89    Section 269TAB(5) provides:

(5)     Paragraphs (1)(a) and (b) apply in relation to a purchase of goods by an importer from an exporter whether or not the importer and exporter are associates of each other.

90    The phrase “arms length transaction”, used in s 269TAB(1)(a)(ii) and (1)(b)(ii) and the word “associate” are affected by s 269TAA. Sections 269TAA(1) and (4) provide:

269TAA Arms length transactions

(1)    For the purposes of this Part, a purchase or sale of goods shall not be treated as an arms length transaction if:

(a)    there is any consideration payable for or in respect of the goods other than their price; or

(b)     the price appears to be influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; or

(c)    in the opinion of the Minister the buyer, or an associate of the buyer, will, subsequent to the purchase or sale, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or any part of the price.

(4)    For the purposes of this Part, 2 persons shall be deemed to be associates of each other if, and only if:

(a)    both being natural persons:

(i)    they are members of the same family; or

(ii)    one of them is an officer or director of a body corporate controlled, directly or indirectly, by the other;

(b)     both being bodies corporate:

(i)    both of them are controlled, directly or indirectly, by a third person (whether or not a body corporate); or

(ii)    both of them together control, directly or indirectly, a third body corporate; or

(iii)    the same person (whether or not a body corporate) is in a position to cast, or control the casting of, 5% or more of the maximum number of votes that might be cast at a general meeting of each of them; or

(c)    one of them, being a body corporate, is, directly or indirectly, controlled by the other (whether or not a body corporate); or

(d)    one of them, being a natural person, is an employee, officer or director of the other (whether or not a body corporate); or

(e)    they are members of the same partnership.

91    The Commissioner examined Wilson’s application as required under s 269TC and did not reject the application under ss 269TC(1). The Commissioner gave public notice of various matters under s 269TC(4). As required by s 269TDAA(1), the Commissioner placed on the public record a statement of essential facts (SEF).

92    Wilson made various submissions in response to the SEF, which included that the Commissioner had failed to apply the correct statutory test in relation to whether certain transactions should be accepted as an “arms length transaction”.

93    Wilson also provided the Commissioner with a report (the TPS Report) from Ms Shannon Smit, a director of Transfer Pricing Solutions. Ms Smit had consulted to multinational companies on transfer pricing, taxation and accounting for a period of over twenty-five years. Ms Smit had not been asked to express an opinion about whether any particular related-party transfer was transacted at an arm’s length price. Rather, in relation to certain identified multinational entities, she was asked the following question:

Would prices between relevant related entities (ie importers and exporters) of the following multinational suppliers of power transformers (multinational PT suppliers) [suppliers were identified, being PRC suppliers relevant to Wilson’s application] be influenced by their commercial, structural or other relationship?

94    The TPS Report included:

Answer to the question presented

Based on my extensive experience working with Multinational companies (“MNC’s”) on their international related party transactions and pricing, the price between related parties is invariably influenced by the commercial, structural and other relationships within the entities.

In my opinion the prices between the related entities of the multinational suppliers of power transformers listed in appendix one would be influenced by their commercial, structural and other relationships within the entities.

Influence from Policies & Procedures

It is common practice that large MNC’s such as those being considered in this report will have in place clear internal policies and procedures guiding management [on] how the organisation should operate. This will include Accounting Manuals which will include an intercompany transactions policy. This will provide clear instructions to management on how transactions should be conducted and accounted for, the pricing approach for the transactions and often any internal approval process required.

From my experience these policies and procedures are usually prepared by the parent company to ensure consistency throughout the company’s Global operations, and to also satisfy the legal and regulatory requirements in the local operations. Once established this will be rolled out throughout the subsidiaries.

I have advised many companies on the international related party transaction section of these manuals or policy documents to ensure they satisfy the transfer pricing requirements. In addition, I have also performed follow up internal audits on some of Australia’s largest companies to ensure that management are following the policies.

Influence from the Operational & Legal Structure

It has been my experience that one of the major drivers behind the operational influence will be intellectual property as this will often be the key value driver for the business. The entity with the critical intellectual property, often the parent entity, will have developed products that are either similar to others in the market or superior, and because of their size or global footprint, enabling them to be better than the competition. Structurally the parent company or a special purpose entity, will own the intellectual property, the product will be manufactured in a low-cost country, such as China, with the parent company having a choice of how they want to sell in a local country, such as Australia. This can be direct to end customers, via an intermediary, through a consortium, or most common practice is through its wholly owned subsidiary such as the entities listed in this request.

A local sales entity will be charged with building relationships in the industry to gain potential sales. While the governance of the group may be strategic in setting the overall framework of making and selling (what is sold and how it is sold), operationally related parties cooperate to sell for common gain, and ultimately for the overall gain of the group. So, if the market is competitive and all players are related party groups acting in competition, then each competitive group is cooperating within itself to gain an advantage. The pricing of each competitor to the customer in the marketplace is dictated by how the sale is made - the pricing may be based on a global price list of the goods if are simple / always being made, or a tender if complex and specific to a customer need.

The customer facing related party may well act based on its knowledge of the competitors and price expectation; in which case the related party manufacturer/distributor has to give potentially a discount to gain the sale for both parties overall gain. If the sale is a tender then the manufacture has a much bigger role in design/construction/delivery on time and may dictate the terms the front to customer related party places in the sale documents.

Influence from Related Party ‘Group’ Dynamics

It is this ‘Group’ working together that changes the dynamics of pricing, and other commercial arrangements. The OECD and Tax authorities such as the Australian Tax Office have transfer pricing legislation and transfer pricing guidelines as to how profits should be attributed to parties within a group based on the functions, assets and risks to achieve prices that might pertain an arm’s length outcome. It is this regulatory requirement from tax authorities which will always require a Group to consider their pricing between Group entities, and thus shows influence because of the related party relationship.

The attribution of profit, or how profit is split between entities is based on reward for functions, assets, and risk which is a formula with a judgment call attached, based on a functional analysis questionnaire and review. It is a weighting and each competitor group may weigh the factors differently, but ultimately may arrive at the same price point to the customer. Whether or not the customer gets the same good/service is based on the facts of the trade under review. Ultimately the customer will choose the product and attached services based on what it considers the selection weighting should be. This final act is what price might pertain in an arm’s length transaction so that the related party dealings will always be a single offering with the potential profit split based on how they internally manage their commercial, structural and other factor relationship.

The use of manufacturing in a low-cost country does bring about a further layer of complexity and opportunity as this often results in what the OECD identifies as ‘location savings[’]. The Multinational company has an opportunity to consider how the group will financially optimize these savings for the benefit of the overall group. From my experience I have seen Multinational groups passing on part of the ‘location savings[’] from the low-cost manufacturing to cost savings to their international customers through lower prices, which increases market share and undercuts other domestic operators in the country of the Group[’]s sales entity. My experience is consistent with recent industry research on this issue, especially with China being identified as the largest source of competition for the industry. [IBIS World – Industry Report C2439 Power Automation Products and Other Electrical Equipment] In other situations MNE Groups have also attributed these location savings back to the parent entity. In all instances the relationship between the related entities has influenced the pricing between the entities.

The OECD Transfer Pricing Guidelines discusses location savings [OECD Transfer Pricing Guidelines – Chapter 1: The Arm’s Length Principle Para 1.141 and 1.142] from a transfer “price” perspective, considering how MNE Groups share their location savings between two or more associated enterprises, whether these are retained by a member or members of the MNE Group, or are passed on to independent customers or suppliers. In addition, being part of an MNE Group does provide synergies with members of the Group benefiting from interactions when operating as a group. [OECD Transfer Pricing Guidelines – Chapter 1: The Arm’s Length Principle Para 1.157] This further supports my statement and practical experience that the price between related parties is influenced by the commercial, structural and other relationships within the entities.

Based on my extensive experience across the Globe working with Multinational companies on their international related party transactions and pricing, I can confidentially say I have never seen a transaction that has not been influenced by the relationships within the entities as the regulatory requirement forces Group entities to consider their relationship.

I conclude, in my opinion the prices between the related entities of the multinational suppliers of power transformers listed in appendix one would be influenced by their commercial, structural and other relationships within the entities.

95    On 31 January 2020, the Commissioner terminated the investigations under s 269TDA. An investigation must be terminated in circumstances set out in s 269TDA, including where the Commissioner is satisfied that there has been no dumping by the exporter: s 269TDA(1)(b)(i). The Commissioner’s reasons for this decision are contained in Termination Report No 507. He concluded that the relevant transactions (to which Ms Smit’s opinions related) were arms length transactions and that there had been no dumping by the exporter. Although the TPS Report was provided to the Commissioner by Wilson in sufficient time, it was not considered by him in reaching his decisions to terminate the investigation.

96    The Commissioner’s decisions were reviewable by the Review Panel under Subdiv C in Div 9 of Pt XVB of the Customs Act. The review is a form of merits review. Because the Commissioner’s decision was made under s 269TDA, the Panel could have regard only to information that was before the Commissioner when the Commissioner made the reviewable decision – see: s 269ZZT(4) which is subject to ss 269ZZRA(2) and 269ZZRB(2). Section 269ZZRA permits conferences to obtain further information and 269ZZRB permits the seeking of further information from the Commissioner. In the case of s 269ZZRA(2), the Panel may only have regard to any further information obtained “to the extent that it relates to the information that was before the Commissioner when the Commissioner made the reviewable decision”: s 269ZZRA(2)(a). In the case of s 269ZZRB, the Panel may only seek information from the Commissioner “in relation to information that was before the Commissioner when the Commissioner made the reviewable decision”: s 269ZZRB(1).

97    On 28 February 2020, Wilson applied to the Panel for review of the termination decisions made by the Commissioner. The grounds of review were summarised by the primary judge in the following way: Wilson Transformer Company Pty Ltd v Anti-dumping Review Panel (No 2) [2021] FCA 591 (J) at [17]

(a)    the Commissioner failed to apply s 269TAA(1)(b) of the Customs Act correctly and, in particular, wrongly substituted the criteria in that provision with a test for arm’s length transactions in fact, disregarding the evidentiary threshold;

(b)    given the relationships between related subsidiaries of multinational suppliers of the power transformers, the Commissioner was on notice that it should properly inquire as to whether s 269TAA(1)(b) was satisfied, but had failed to do so;

(c)    the TPS Report established that s 269TAA(1)(b) was satisfied and the Commissioner should have had regard to that evidence; and

(d)    the Commissioner failed to properly assess injury suffered by Wilson due to dumped goods from China in the form of lost commercial opportunities.

98    The Panel proceeded on the basis that, although the Commissioner had not had regard to the TPS Report, for the purposes of s 269ZZT(4) it might have been “before” the Commissioner. The Panel did not reach a concluded view about whether it could have regard to the TPS Report: see the Panel’s reasons in Decision No 122 and 123 (P) at [21] (compare J[19]).

99    On 8 May 2020, after it had formally commenced its review, the Panel held a conference with representatives of the Commission pursuant to s 269ZZRA of the Customs Act.

100    Wilson was not advised about the conference or invited to respond to that which had been discussed at the conference. A transcript of the conference was in evidence at trial.

101    On 18 May 2020, the Panel affirmed the Commissioner’s decisions. It did so on the basis that the Commissioner had been correct to conclude that the relevant sales had been “arms length transactions” within the meaning of the Customs Act. The Panel published its reasons in Decision No 122 and 123.

THE PROCEEDINGS IN THE ORIGINAL JURISDICTION

102    The proceedings before the primary judge centred on two issues. First, it was contended that the Panel misconstrued s 269TAA(1)(b). Secondly, it was contended that Wilson had been denied procedural fairness. As a matter of substance, the issues on appeal are the same as at trial, albeit framed by reference to the primary judge’s decision and certain additional alleged errors.

103    The primary judge’s reasoning is referred to below to the extent necessary to address the issues on appeal.

THE APPEAL

Summary of issues on appeal

104    Wilson relied upon three grounds of appeal:

(1)    Ground 1 asserted error on the part of the primary judge in failing to conclude that the Panel had misconstrued or misapplied s 269TAA(1). Seven particulars were provided. Each hinges in some way upon the correct construction of s 269TAA(1)(b).

(2)    Ground 2 asserted that the primary judge erred at J[77] in concluding that the evidence before the Commissioner was to the effect that the export prices that had been achieved as between related parties was the same as for prices with unrelated parties.

(3)    Ground 3 was that, having found that Wilson was entitled to procedural fairness by the Panel (J[97]), including in relation to the information it received in a conference with officers of the Commission (J[102]), the primary judge erred in concluding that any failure to afford procedural fairness did not comprise a material error (J[111]).

105    By a notice of contention, the Panel contends that the primary judge erred in concluding that the Panel “failed to comply with the requirements of procedural fairness by holding a conference with the staff of the Commission in secret and then by not disclosing the substance of the information it had obtained as was both material to its decision making task and adverse to … [Wilson] to permit … [Wilson] an opportunity to respond”: J[102].

106    The Panel contended it was not obliged by the requirements of procedural fairness: (i) to inform Wilson that the conference would be held, (ii) to invite Wilson to attend the conference, (iii) to inform Wilson that it had received further information at the conference, or (iv) to provide Wilson with an opportunity to respond to information obtained at the conference.

Ground 1

107    Although, the phrase “arms length transaction” in s 269TAB(1) is affected by s 269TAA, the phrase is not defined in the Customs Act. The phrase ‘arm’s length’ and the concept of an ‘arm’s length transaction’ are well known. An arm’s length transaction is one in which independent parties deal with each other acting in their individual self-interest – see, for example: Australian Trade Commission v WA Meat Exports Pty Ltd (1987) 75 ALR 287 at [13] (Beaumont, Wilcox and Burchett JJ). Determination of whether a transaction is an arm’s length transaction is usually understood as requiring a consideration of whether parties are “at” arm’s length (independent / unrelated) and also whether the parties “dealt” with each other at arm’s length whether or not they were related – see: Trustee for the Estate of the late AW Furse No 5 Will Trust v Federal Commissioner of Taxation (1990) 21 ATR 1123; Granby Pty Ltd v Federal Commissioner of Taxation (1995) 129 ALR 503; Federal Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325 at [60]. Related parties can transact at an arm’s length price, including by dealing with each other at arm’s length. Related parties can also transact at an arm’s length price by ascertaining the arm’s length price (often by reference to market value) and agreeing to transact at that price.

108    Entities within a multinational group are not independent. The entities are not “at” arm’s length and generally do not deal with each other at arm’s length. Rather, the entities usually act in the economic and commercial interests of the group as a whole, taking into account the commercial and taxation regimes of the various countries in which the group operates. Transactions between members of a multinational group are inherently unreliable as indicating what independent parties or entities dealing in their own economic interests would have done.

109    Section 269TAB(5) expressly provides that a transaction between “associates” can be an “arms length transaction” under s 269TAB(1)(b) and (c). It follows that, for the purposes of s 269TAB(1)(b) and (c), a particular transaction can still qualify as an “arms length transaction” when the parties are not “at” arm’s length, for example, because they are members of the one multinational group or are otherwise related. However, the transaction must still be an “arms length transaction”. In the case of a transfer of property between members of the one multinational group for an amount of money, and having regard to s 269TAB(5), the transaction might be an “arms length transaction” for the purposes of s 269TAB(1)(b) or (c) if the related parties dealt with each other at arm’s length (which one might expect to be a rare occurrence) or transacted at an arm’s length price.

110    The concern of s 269TAB(1), read with s 269TAA(1), is that the “export price” should, so far as is possible, be determined by reference to a transaction which is a reliable indicator of an arm’s length price. The statutory object, evident from the language used, is to exclude transactions which are not reliable indicators of an arm’s length export price. The most reliable indicator of an arm’s length export price is the price which would have been paid by independent parties, dealing with each other at arm’s length, and doing so in the absence of circumstances otherwise affecting the price of the relevant goods.

111    Section 269TAA(1) sets out three circumstances in which a purchase or sale of goods shall not be treated as an “arms length transaction” under s 269TAB. The three circumstance reveal that the concern is to exclude transactions where the price in fact paid would not ordinarily be a reliable indicator of the arm’s length price. As noted earlier, s 269TAA(1) provides:

269TAA Arms length transactions

(1)    For the purposes of this Part, a purchase or sale of goods shall not be treated as an arms length transaction if:

(a)    there is any consideration payable for or in respect of the goods other than their price; or

(b)     the price appears to be influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; or

(c)    in the opinion of the Minister the buyer, or an associate of the buyer, will, subsequent to the purchase or sale, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or any part of the price.

112    The principal object of s 269TAA(1) is to exclude from what might be an “arms length transaction” under s 269TAB(1) transactions which are unreliable indicators of arm’s length price. The object of the provision should be determined against the background of the relevant international instruments. Article 2.3 of the Agreement on the Implementation of Article VI of General Agreement on Tariffs and Trade 1994, opened for signature 15 April 1994, 1868 UNTS 201 (entered into force 1 January 1995) (Anti-Dumping Agreement) allows an export price to be constructed when the export price is unreliable for use in the consideration of imposing dumping duties because of an “association or compensatory arrangement between the exporter and the importer”. It provides (emphasis added):

2.3     In cases where there is no export price or where it appears to the authorities concerned that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or if the products are not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as the authorities may determine.

113    In the context of a case concerning s 269TAA(1)(c), Lehane J in Nordland Papier AG v Anit-Dumping Authority [1999] FCA 10; 93 FCR 454 at [29] stated:

In that Article there is to be found, I think, at least the genesis of pars (b) and (c) of s 269TAA(l). Unless the words of par (c) clearly require another construction, authority supports the proposition that the paragraphs should be construed consistently with the terms of the international instruments: ICI Australia Operations Pty Ltd v Fraser (1991) 34 FCR 564 at 569, 570; Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 at 417. The introductory words of the paragraph (“in the opinion of the Minister”) and the words “directly or indirectly” provide, in my view, a further clue. What is sought to be encompassed, I think, is a series of circumstances where price, ascertained in accordance with ordinary principles, is an unreliable indicator because there is an arrangement between the parties under which price is set at a particular level but the buyer, having agreed to pay the price so established, is to receive some offsetting compensation or benefit or is (directly or indirectly) to receive reimbursement of all or some of the price. The paragraph, strikingly, is not drawn as one intended to operate mechanically having regard to the form of a transaction; it is broadly drawn and is directed to substance, the substance being derived from Art 2.3 of the Marrakesh Agreement [the Anti-Dumping Agreement].

114    Section 269TAA(1)(b) as enacted provided (emphasis added):

269TAA Arms length transactions

(1)    For the purposes of this Part, a purchase or sale of goods shall not be treated as an arms length transaction if:

…

(b)     the price is influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; …

115    The words “appears to be” replaced the word “is” in 2013, such that paragraph (b) now refers to whether “the price appears to be influenced by a commercial or other relationship between the buyer … and the seller …” (emphasis added). The explanatory memorandum to the Customs Amendment (Anti-dumping Measures) Bill 2013 (Cth) stated:

Item 6 – Paragraph 269TAA(1)(b)

…

20.     Subsection 269TAA(1)(b) specifies that where ‘the price is influenced’ by a relationship between the buyer and seller, it shall not be treated as an arms-length transaction. This section can be used to address a range of circumstances where a relationship between the parties affects the price paid or payable for goods.

21.     Article 2.3 of the Anti-Dumping Agreement sets out procedures for establishing an export price where there is no export price or the export price appears unreliable to the authorities concerned. Specifically Article 2.3 provides that “where it appears” an export price is unreliable because of an association or compensatory arrangement between the parties, an export price may be established by specified alternative means.

22.     By including the phrase ‘the price appears to be’ in paragraph 269TAA(1)(b) the Customs Act is better aligned with the Anti-Dumping Agreement, and recognises that the evidence that authorities may have available in an investigative process may not be entirely conclusive as to the effect of a relationship on a price, and instead allows a reasoned and objective approach to such an issue based on what the available information suggests.

116    Paragraph (b) of s 269TAA(1) focusses attention on the “price” in the relevant transaction and the question whether the price “appears to be influenced by a commercial or other relationship” between buyer and seller (or associates). It is not limited in its application to transactions between related parties. It is clear from the language of s 269TAA(1)(b), and confirmed by the statutory history and background context, that the amendment was intended to facilitate exclusion of a transaction “where it appears” that the export price in fact paid is unreliable in determining whether dumping has occurred by reason, amongst other things, of an association between importer and exporter. It is not necessary to reach a positive state of satisfaction that the price was in fact so affected; an appearance that the price was so affected is sufficient.

117    None of this should be surprising. The “price” paid for the transfer of goods between members of a multinational group is not, without further investigation, reliable evidence of the price which would have been paid between independent parties dealing with each other at arm’s length. Related parties are not at arm’s length and they do not typically deal with each other at arm’s length. The task of satisfactorily establishing that a price paid was in fact affected by a relationship such as exists between entities in a multinational group would generally involve an analysis of all of the relevant dealings in the group against a real understanding of the taxation and commercial regimes of the relevant countries in which the group operated. The statutory scheme would be undesirably expensive and complex, if not in certain circumstances practically unworkable, if a transaction between entities within the one multinational group were only excluded as an “arms length transaction” if a positive satisfaction were reached that the relationship between the entities in fact affected price in the sense that the relationship was shown in some specific way to have resulted in something other than the arm’s length price being paid. Further, if the statutory scheme permitted an approach which assumed a transfer between entities within a multinational group was at an arm’s length price, unless satisfied that the relationship in fact affected the price, that would call into question the utility of s 269TAA(1)(b) as amended.

118    Section 269TAA(1)(b) has the effect that the Commissioner must not accept a transaction as an “arms length transaction” under s 269TAB(1)(b) or (c) if he takes the view that the price appears to have been influenced by a relationship, commercial or otherwise, between the parties to the transaction. The provision does not require the Commissioner to exclude a transaction merely because he appreciates that the parties are related. As noted above, paragraph (b) of s 269TAA(1) applies where the price appears to be influenced by any “commercial or other relationship”; it is not limited to related parties or members of a multinational group. Some relationships would not, of themselves, give rise to an appearance of influence on price. Others might generally or almost invariably give rise to an appearance of influence on price. Nor does paragraph (b) ultimately prevent the Commissioner from concluding that a transaction is an “arms length transaction” if, on investigation, the Commissioner concludes that the relationship between the parties, being a relationship which might affect price, did not in fact affect the price. This might occur, for example, because the Commissioner concludes that the transaction was the result of an arm’s length dealing or was determined by reference to arm’s length prices. Section 269TAB(5) expressly contemplates that related party transactions can be “arms length transactions” for the purposes of paragraphs (a) and (b) of s 269TAB(1).

119    However, where there is an appearance of influence on price, such as would almost invariably be the case in respect of a cross border transfer of goods within a multinational group, s 269TAA(1)(b) does not permit the Commissioner to assume that the transaction was an arm’s length one, or that the price paid was an arm’s length price, unless evidence to the contrary is located. The point of s 269TAA(1)(b) is to facilitate exclusion of those kinds of inherently unreliable transactions despite not reaching a positive satisfaction that the relationship did in fact affect price.

120    The thrust of the appellant’s case with respect to Ground 1 as argued on appeal was that the Panel did not exercise its jurisdiction properly because it misunderstood the statutory task. For the reasons which follow, the appellant is correct.

121    In its reasons in Decision No 122 and 123, the Panel stated (footnotes omitted and emphasis added):

46.     In the present case, the applicant contends that there is information available to the Commissioner which gives the appearance that the sales between the related exporters and importers were ‘influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller’. It pointed to the TPS Report. Ms Smits, the author, has extensive experience working as a consultant in the field of transfer pricing. She was asked the question:

Would prices between relevant related entities (ie importers and exporters) of the following multinational suppliers of power transformers … be influenced by their commercial, structural or other relationship?

Ms Smit opined:

…the price between related parties is invariably influenced by the commercial, structural and other relationships between the entities.

However, Ms Smit also said that the question she was asked:

… is not concerned with whether prices between related entities of the multinational PT suppliers are or are not at a level that would pertain in an arm’s length transaction.

47.     In my opinion, the influence with which s 269TAA(1) is concerned is influence as to price. It is concerned with the appearance of variation from the price that would have been agreed had the sale been negotiated at arms length. Any other effect does not provide a reason why the price agreed between the parties should not be adopted as the export price under s 269TAA(1) or result in the transaction not being used for the determination of the normal value under s 269TAC(1).

48.     I am not, therefore, persuaded, that Ms Smit’s report provides a basis for concluding that the prices ‘appeared’ to be influenced by the relationships between exporters and importers in this case, within s 269TAA(1)(b).

49.     I accept that relationships between the exporters and importers provides an opportunity for the price to be influenced and that this might well lead the Commissioner to scrutinise the transactions more carefully than transactions between unrelated parties. It must be borne in mind, however, that the opportunity and the capacity to influence the price, is not the same thing as actually influencing the price. It does not follow that the appearance of influence, such as that which might exist between related exporters and importers, creates the appearance that the influence has been exercised.

122    This reasoning demonstrates that the Panel misunderstood the statutory task in a material way.

123    As a matter of substance, Ms Smit’s report (the TPS Report) made the point that transactions between entities within a multinational group are affected by the relationships between the entities including because of the regulatory environment in which they operate. As a matter of common-sense, an amount paid in respect of the transfer of goods between entities within the one multinational group is necessarily influenced by the relationship between them and is inherently unreliable as an indicator of what independent parties would have done when dealing with each other at arm’s length.

124    As can be seen from P[46] to [48], the Panel concluded that Ms Smit’s report did not provide a basis for concluding that the prices appeared to be influenced because she had not been asked to express a view about whether the relevant transactions were in fact at arm’s length prices. That kind of exercise is, of course, a detailed and expensive exercise requiring examination of comparable transactions, where available. The fact that Ms Smit was not asked to undertake that very different exercise does not diminish the force of the opinions expressed on the questions she was asked. Ms Smit’s report provided a solid foundation, if more than common-sense was needed, for a conclusion that the prices appeared to be affected by the relationship between the parties.

125    As is explained in more detail below, the proper construction of the Panel’s reasons is ultimately one of impression. The Panel considered that the TPS Report was not capable of providing a basis for concluding that the prices “appeared” to be influenced by the relationships between the exporters and importers, because it did not establish that the prices deviated from arm’s length prices: P[47] and [48]. The second sentence of P[47] and P[48] show that the Panel considered Ms Smit’s report incapable of establishing an appearance of influence on price because it did not establish that the prices in fact varied from an arm’s length price. This reasoning demonstrates that an erroneous approach was taken to the discharge by the Panel of its statutory task.

126    The TPS Report was plainly probative of whether the relationship between the related parties the subject of the Panel’s review was such that the relationship appeared to have an effect on price. The view taken by the Panel that the TPS Report did not assist Wilson such that it did not need to reach a conclusion about whether it could have regard to the TPS Report (P[21]) and its view that the TPS Report did not provide a basis for concluding that the prices appeared to be influenced by the relationships between exporters and importers (P[48]) indicates that the Panel approached the statutory task on the basis that the material had to demonstrate that there was an actual deviation from arm’s length price in order for the transaction to be excluded.

127    At P[49], the Panel drew a distinction between the “capacity to influence the price” and “actually influencing price”. The Panel stated that “opportunity and the capacity to influence the price, is not the same thing as actually influencing the price” and that the appearance of influence does not necessarily result in the appearance that the influence has been exercised. Read in the light of the discussion from P[46] to P[48] and the non-acceptance of Ms Smit’s evidence as “a basis for concluding that the prices ‘appeared’ to be influenced by the relationships between [the] exporters and importers in this case”, P[49] suggests that the Panel required actual proof of price deviation in order to exclude, through the operation of s 269TAA(1)(b), a transaction as being an “arms length transaction” under s 269TAB(1). This approach was wrong.

128    At P[53], the Panel referred to various investigations which the Commission had undertaken and summarised the conclusions which had been reached. The paragraph reinforces the nature of the Panel’s error and why the error is material:

(1)    In relation to [REDACTED] [REDACTED], the Panel stated it [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. As to these facts:

•    They could not rationally have been understood as indicating anything other than that the relationship between the parties affected price. These facts suggest [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

•    It may be accepted that this evidence does not, of itself, establish that the export price was artificially low or that it deviated from an arm’s length price. However, it provides no basis for an assumption that the export price was an arm’s length price and every reason to question whether it was. The fact that [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], is not seriously probative of whether the export price was artificially low or arm’s length.

(2)    In relation to [REDACTED], the Panel stated [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. This plainly indicates that price was affected by the relationship between the parties and can be understood in no other way. Again, of itself, it does not indicate that the price was arm’s length.

(3)    In relation to [REDACTED], the Panel (like the Commission) concluded about the relevant exporting entity that [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] says nothing about whether the export price was artificially low. Further, the conclusions expressed reveal that the Panel was not addressing itself to the question whether the relationship of the parties was likely to have affected price.

129    It is worth observing at this point, because of its relevance to ground 3, that the information referred to above could have been disclosed to Wilson without disclosing confidential information and Wilson could have made the points just made.

130    If the Panel had not approached the matter on the basis that the prices for the intra-group transfers should be treated as arm’s length unless a variation from an arm’s length price was shown, its conclusion may well have been different. It may have appeared to the Panel that the relevant price was affected by the relationship between the parties. That conclusion was certainly open on the material before the Panel, if not irresistible.

131    The Panel erred in taking the view that it could not exclude the relevant related party transactions unless it found evidence that the opportunity to influence the price had been exercised such that the price was in fact affected. It was permissible to examine the transactions and take the view that the prices were arm’s length or that the transactions were “arms length transactions” within the meaning of s 269TAB(1), but it was not permissible to do so on the basis that the related party transactions were to be assumed to be arm’s length transactions unless the Panel found material which indicated that the relationship between the parties in fact affected price. This approach materially altered the statutory task by requiring acceptance of inherently unreliable transactions as ones giving rise to an arm’s length prices unless material to the contrary was identified. As a matter of substance, the statutory scheme is to permit rejection of the relevant unreliable transaction notwithstanding no positive satisfaction that the price was in fact affected by the relevant circumstance.

132    If the Commission and the Panel had appreciated that s 269TAA(1)(b) was engaged if the whole of the circumstances lead the Commission to the view that the “price appeared to be influenced by a commercial or other relationship”, rather than assuming the price was an arm’s length price unless the inquiries established otherwise, the investigations may not have been terminated.

133    Indeed, if the Commission had properly understood s 269TAA(1)(b), its inquiries may have been different. The question whether a cross-border transfer price between entities within a multinational group ‘appears to be’ affected by the fact that the parties are not at arm’s length and that they operate as a single economic unit (or at least not in individual self-interest) is different to an inquiry into whether the price in fact paid deviated from an arm’s length price. Whilst there is likely to be overlap, inquiries in respect of whether a relationship is likely to affect price are different to inquiries into whether the price was in fact arm’s length.

134    The primary judge was “unpersuaded that a fair reading of the Panel’s reasons as a whole supports an inference that the error [Wilson] alleges [drawn from P[47] and [48]] infects the Panel’s other reasoning so as to be material to the Panel’s ultimate conclusions”: J[44]. In this regard, his Honour referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] and [31]: J[40].

135    The zealousness which the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 permits depends on the particular circumstances including the qualifications or expertise of the decision-maker and, a matter of significant importance, the particular statutory context: Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 754; (2012) 206 FCR 576 at [36] (Flick J); Stojic v Deputy Commissioner of Taxation [2018] FCA 483; (2018) 107 ATR 741 at [104] (Thawley J). If a decision-maker has chosen to give comprehensive reasons in the absence of a statutory requirement to provide reasons, this should also be taken into account in the application of the principle in Wu Shan Liang – see, albeit in the context of discussing the drawing of inferences from reasons: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [72] (Kenny, Flick and Griffiths JJ). The reasons in the present case were carefully expressed and comprehensive, evidently and appropriately intended to inform the reader of the material facts, conclusions and reasoning process.

136    In Wu Shan Liang, the relevant reasons under review began and ended with a correct statement of the test. It was “only some phraseology in between which provide[d] the [arguable] basis for a conclusion that she [the decision-maker] had slipped from an assessment of real chance to an assessment of balance of probabilities”: at 271. It was in that context that the Full Court of the Federal Court had said that it “should not take the view that she did not apply the correct test unless this appears clearly from what she has written”: Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 418; (1995) 57 FCR 432 at 444.

137    It is to be accepted that the Panel’s reasons should be read as a whole and “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), quoting from Collector of Customs v Pozzolanic [1993] FCA 322; (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ). The Court is not concerned with looseness in language or unhappy phrasing. However, if it is clear from the reasons as a whole that the relevant decision-maker misunderstood the statutory task in a material way, intervention becomes necessary. It is tolerably clear from the reasons as a whole that the Panel approached its task incorrectly.

138    Ground one of the appeal has been made out.

139    Although not directly relevant to ground 1, it might also be noted that the transcript of the 8 May 2020 conference between the Panel and representatives of the Commission reveal that the approach which the Commissioner had adopted was to assume that the relevant transactions were arm’s length transactions unless, through its investigations, it found information which indicated that the prices were not arm’s length prices. By way of example, the Commission’s Exporter Verification Report dated 1 October 2019, in addressing paragraphs (a) to (c) of s 269TAA, stated (footnotes omitted and emphasis added):

6.3 Arms Length

In respect of Australian sales of the goods by ABB CQ and ABB ZS during the period, the verification team found no evidence that:

•    there was any consideration payable for, or in respect of, the goods other than its price; or

•    the price was influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; or

•    the buyer, or an associate of the buyer, was directly or indirectly reimbursed, compensated or otherwise receive a benefit for, or in respect of, the whole or any part of the price.

The verification team therefore considers that all export sales to Australia made by ABB CQ and ABB ZS during the period were arms length transactions.

140    The transcript of the conference expressly confirms the Commissioner’s approach was to assume the transactions were arm’s length unless evidence to the contrary was found. This approach was erroneous for the reasons stated.

Ground 2

141    Ground 2 challenges the primary judge’s conclusion at J[77] that that the evidence before the Commissioner was to the effect that the export prices that had been achieved as between related parties was the same as for prices with unrelated parties. His Honour stated at [77]:

In evaluating whether some commercial or other arrangement “appears” to have influenced the price of imported goods it was therefore not impermissible for the Panel to have reasoned as it did. No subsidisation was found—and the Applicant does not suggest error in that regard. The evidence before the Commissioner (which the Panel was informed of during its meeting with the Commission’s staff) was to the effect that the export price(s) that had been achieved as between the related parties as had been investigated by the Commissioner was the same for an unrelated or a related party.

142    There was no dispute in the appeal that the exporters did not sell goods to unrelated parties. The Panel had noted at P[51] that the Commissioner’s practice of comparing related party transaction to transactions between unrelated parties was not possible “because the exporters did not sell goods to unrelated parties”. The primary judge’s conclusion at J[77] that the related party transactions were at the same price as to unrelated parties was not supported by the evidence.

143    It follows that ground 2 is made out.

Ground 3 and the notice of contention

144    The primary judge concluded that the Panel owed procedural fairness obligations to Wilson, including in relation to the information the Panel received in the 8 May 2020 conference held with some of the Commissioner’s staff: J[95] to [97]. His Honour also concluded that the Panel had breached its obligations of procedural fairness, stating:

101    In the particular facts applying there appears to the Court to have been nothing in the obligations of confidence binding on the Panel as would have prevented it from advising the Applicant of its intended course of meeting with the staff of the Commission to ascertain what the Commissioner had been informed of regarding how prices were set with an undertaking to provide the Applicant with the opportunity to respond to any information adverse to its interests that the Panel might become aware of during that conference subject to its obligations of confidentiality. In the absence of any submissions directed to the point on behalf of the First Respondent there appears to the Court to have been nothing to have prevented the Panel from subsequently communicating to the Applicant (without reference to confidential detail) a non-confidential summary of what it had been informed of. I have been altered to nothing that would have prevented the Panel revealing to the Applicant that although arrangements existed between the respective related entities the confidential verification reports it had been provided with indicated that the export price(s) that had been investigated by the Commissioner were at the same level as would have been arrived at by unrelated parties.

102    In my view the Panel failed to comply with the requirements of procedural fairness by holding a conference with the staff of the Commission in secret and then by not disclosing the substance of the information it had obtained as was both material to its decision making task and adverse to the Applicant to permit the Applicant an opportunity to respond.

145    The primary judge went on to hold that the denial of procedural fairness was not material. His Honour set out at J[108] and accepted at J[109], the following submissions which had been advanced by the Panel:

48.     First, the practical injustice of which Wilson complains appears to comprise the lost opportunity to be heard by way of submissions about the Commissioner’s approach to the assessment of the arms length nature of the relevant transactions between related exporters and importers. However, Wilson had had many opportunities to advance its case on this issue. Wilson’s application for review (in so far as it concerned the termination decisions that were subsequently affirmed by the Panel) centred around various complaints in relation to the Commissioner’s construction and application of s 269TAA(1)(b). Wilson had repeatedly made submissions on that point to the Commissioner …..and these submissions formed part of the material before the Panel. Wilson also made detailed submissions to the Panel on this question of construction …. In particular, Wilson’s submissions advanced its view that s 269TAA(1)(b) was enlivened whenever an associated entity had any effect on pricing (including through internal policies, guidelines or directives). The Panel was fully aware of Wilson’s approach to the construction of the provision….. but ultimately did not accept that approach. Further, the reference to the Commission’s approach to s 269TAA(1)(b) at the conference was consistent with the Commissioner’s description of that approach in its Termination Report….

49.     Accordingly, this is not a case in which the procedure adopted by the Panel “can be shown itself to have failed to afford a fair opportunity to be heard”, nor is it a case in which “[t]he practical injustice lies in the denial of an opportunity which in fairness ought to have been given”. Rather, Wilson had a fair opportunity to be heard on the legal and factual questions concerning the construction and application of s 269TAA(1), and has not pointed to anything that it could have said on those questions that it did not in fact say.

146    The primary judge stated:

110    The course of authority subsequent to the High Court’s decision in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 has favoured the view that inutility of relief does not merely give rise to a discretion to refuse relief. Having regard to the decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 I take it now to be settled law that absent a Court being satisfied that, but for the breach, there is a reasonable possibility that different outcome could have been reached by a decision maker, a failure to accord natural justice will not be jurisdictional error. The burden of demonstrating that a different outcome might or could have been arrived at had the breach not occurred is upon the party asserting the error.

111    Although the Court is satisfied that that the Panel failed to accord procedural fairness to the Applicant and erred in law in that regard, in the circumstances applying its failure was not material. It did not cause the Panel’s decision making to miscarry and its failure was not a jurisdictional error.

147    As mentioned, by ground 3, Wilson contends that the primary judge erred in concluding at J[111] that the denial of procedural fairness was not a material error.

148    By its notice of contention, the Panel challenges the primary judge’s finding that the Panel failed to comply with procedural fairness requirements because:

(1)    the statutory scheme for review of reviewable decisions by the Panel under Subdiv C, Div 9 of Pt XVB is exhaustive and excluded procedural fairness requirements; and/or

(2)    Wilson was not deprived of any opportunity to make submissions or provide information to the Panel, such that it suffered no practical injustice.

149    It is preferable to address first whether the statutory scheme for review of reviewable decisions by the Panel under Subdiv C, Div 9 of Pt XVB is exhaustive and excluded procedural fairness requirements.

150    Division 9 is entitled “Review by Review Panel” and is comprised of four Subdivisions. Subdivision C is entitled “Review of Commissioner’s decisions”. Sections 269ZZRA and ZZRB were introduced into Subdiv C in 2015. They provide:

269ZZRA Review Panel may hold conferences  

(1)    The Review Panel may, at any time after receiving an application for a review, hold a conference of such persons or bodies as it considers appropriate for the purpose of obtaining further information in relation to the application or review.

(2)    In making a decision on the review, the Review Panel may also have regard to:

(a)    that further information to the extent that it relates to the information that was before the Commissioner when the Commissioner made the reviewable decision; and

(b)     any conclusions reached at the conference based on the information that was before the Commissioner when the Commissioner made the reviewable decision.

If the Review Panel decides to hold a conference at any time after receiving an application for a review and before beginning to conduct the review:

(a)    the Review Panel must invite the applicant to attend the conference; and

(b)     if the applicant fails to attend the conference and the Review Panel is not satisfied that the applicant has a reasonable excuse for the failure— the Review Panel may reject the application.

269ZZRB Review Panel may seek further information from the Commissioner

(1)    In reviewing a reviewable decision under this Subdivision, the Review Panel may seek further information from the Commissioner in relation to information that was before the Commissioner when the Commissioner made the reviewable decision.

(2)    In making a decision on the review, the Review Panel may also have regard to that further information.

151    The effect of the introduction of these provisions was that the review was no longer strictly confined to the material which had been before the Commissioner.

152    Subdivision C does not expressly exclude an obligation to provide procedural fairness. The better view is that the Panel’s power of review, including its power to obtain information on the review, is conditioned on a duty to afford natural justice: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 258-259 [11]-[13]. The implication of a duty to afford natural justice is not negatived by s 269ZZRA(3). That provision requires the Panel to invite an applicant to a conference if the Panel decides to hold a conference before beginning to conduct the review and permits the Panel to reject the application if the applicant fails to attend the conference and the Panel is not satisfied that the applicant has a reasonable excuse for that failure.

153    Precisely what procedural fairness requires depends upon the particular facts and the statutory context – see: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503-504 per Kitto J and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 161 [35].

154    The statutory context includes 269ZZY, in Subdiv D, which provides:

269ZZY Confidential and sensitive commercial information

(1)    To the extent that information provided to the Review Panel by a person is claimed by the person to be:

(a)    confidential; or

(b)    information whose publication would adversely affect a person’s business or commercial interest;

the person giving that information must, at the time the information is given to the Review Panel, also give a summary of that information to the Review Panel for inclusion in the public record maintained under section 269ZZX.

(2)    The summary must:

(a)    contain sufficient detail to allow a reasonable understanding of the substance of the information; but

(b)    does not breach the confidentiality or adversely affect the interests concerned.

Note:    For the consequences of failing to comply with subsection (1), see sections 269ZZH and 269ZZR and subsection 269ZZK(5).

155    Section 269ZZY applies to an application for a review of a termination decision under Subdiv C: s 269ZZW. Section 269ZZY facilitates the obtaining of confidential information and the ability to make a summary of it available for inclusion in the public record. The summary must: (a) contain sufficient detail to allow a reasonable understanding of the substance of the information; but (b) not breach confidentiality. Recognising that s 269ZZY does not apply to information provided by the Commissioner to the Panel in the course of a conference held under s 269ZZRA, the significance of the provision to the present debate is that it suggests that, in this statutory scheme, confidentiality is not a reason for not affording procedural fairness given that a non-confidential summary of information claimed by the person to be confidential is to be included in the public record under s 269ZZX.

156    After the 8 May 2020 conference, the Panel published a document entitled “ADRP Conference Summary”. The evident purpose of it was to give public notice of a summary of what had been discussed at the conference. It was available to the public and, accordingly, to Wilson.

157    The summary recorded that the purpose of the conference was to obtain information in relation to the Panel’s review concerning power transformers. It noted that the conference was held pursuant to s 269ZZRA. Although the document is two pages long, the majority of the content is background explanation rather than disclosure of information obtained in the conference. Under the heading “Discussion”, the following information was disclosed:

5.    The representatives of the ADC [Anti-Dumping Commission] provided details of the ways in which the price of the sales between related exporters and importers was determined and the assessment of the arms length nature of those transactions.

6.    The ADC provided further details of the ownership structure of ABB Chongqing and Changzhou Toshiba Co., Ltd. The ADC representatives provided information about profitability levels.

7.    The ADC representatives provided details about the materials obtained by them during the course of the investigation in relation to the decisions by the purchasers to select the successful tenderers.

8.    The details of the information provided was confidential to the exporters, importers and the applicant.

158    There was no other information obtained during the conference which was disclosed in the summary.

159    This document disclosed the reasons for the conference and the background, but it cannot be regarded as an adequate disclosure of the substance of the information provided during the conference. It should be borne in mind that the Panel evidently considered it appropriate to hold a conference and had specific questions which it asked those attending about the material it was reviewing. These questions concerned both the general approach which the Commissioner had adopted and specific factual issues. It obtained answers which are not disclosed in the “ADRP Conference Summary”. As noted earlier, information was provided which could have been disclosed in a way which preserved confidentiality.

160    As to the four numbered paragraphs constituting the disclosure of information in the “ADRP Conference Summary” the following observations should be made:

(1)    The first paragraph provides a summary of what the Commission did during the conference – “provided details of the ways in which the price of the sales between related exporters and importers was determined and the assessment of the arms length nature of those transactions” – but left entirely absent any articulation of what those “details” were. This could have been done in a way which summarised the substance of the detail in a way which maintained confidentiality.

(2)    The second paragraph provided no information about the “details” of the ownership structure or what the information about profitability levels was. Again, this could have been done in a way which summarised the substance of the “details” and “information” in a way which maintained confidentiality.

(3)    The third paragraph is uninformative as to the “materials” obtained during the course of the investigation in relation to the decisions by the purchasers to select the successful tenderers.

(4)    The fourth paragraph is simply a statement that the information was confidential. At least some of the information was no doubt confidential. That did not prevent the Panel from informing the applicant of the substance of the “information”, in a way which maintained confidentiality.

161    Wilson first became aware of the content of the communications in the conference during the hearing before the primary judge: J[20] and [79]. If it had known of the substance of what had been communicated during the meeting, Wilson could have adduced evidence which addressed various of the matters summarised by the Panel at P[53]. Wilson could also have made submissions about the cogency of the information which the Panel had received and how it should be used in determining whether there was an appearance of influence on price or what the information said about whether the relevant transactions were arm’s length or reflected an arm’s length price.

162    Wilson could have submitted to the Panel that the information obtained during the conference revealed that the Commissioner was using evidence of influence to conclude the opposite (J[84]); that the Commissioner had no evidence of genuine bargaining between the related parties; and as to whether the Commissioner’s internal manual should be understood as covering or being applicable to wholly within-group pricing (P[51]).

163    The circumstances were such that, in this statutory context, the Panel ought to have informed Wilson of the substance of the information communicated during the conference. It ought to have done so in a way which appropriately preserved confidentiality – see: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [25] and [29] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). The possibility of a different outcome cannot be excluded because Wilson may have responded. Any such response would have related to the information that was before the Commissioner when the Commissioner made the reviewable decision and so would not have been excluded from consideration by s 269ZZRA(2)(a). As the discussion above shows, a number of points could have been made by Wilson which might have led to the conclusion that: (a) the relevant cross border transactions were likely to have been influenced by the fact that they occurred between entities within the one multinational group; (b) the Commissioner’s approach that the transactions should be assumed to be arms length transactions unless he found evidence of actual influence on price was wrong; and (c) it might be unsafe to conclude that the transfers occurred at arm’s length prices.

164    The notice of contention should be dismissed and ground 3 of the appeal should be upheld.

CONCLUSION

165    The appeal should be allowed.

Associate:

Dated:    21 January 2022

SCHEDULE OF PARTIES