Federal Court of Australia

Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel (No 2) [2022] FCAFC 30

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 18 February 2022 be upheld.

2.    Pursuant to r 39.05(f) of the Federal Court Rules 2011 (Cth), orders 1-3 of the orders dated 21 January 2022 be set aside.

3.    The parties should seek to agree orders which give effect to these supplementary reasons for judgment, in respect of both the appeal and the proceeding below, including as to costs.

4.    If agreement cannot be reached, by no later than 18 March 2022, each party should file and serve a copy of their respective proposed orders, together with an outline of written submissions in support not exceeding three pages in length.

5.    Final orders will then be determined on the papers and without a further oral hearing.

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:

Introduction

1    On 21 January 2022, the Court made orders in this proceeding, including that the appeal be dismissed as well as orders as to costs. The Court’s reasons for judgment are reported as Wilson Transformer Pty Ltd v Anti-Dumping Review Panel [2022] FCAFC 4, which for convenience we will refer to as First Full Court. The present reasons for judgment should be read in conjunction with the earlier reasons. We will adopt the same abbreviations as in First Full Court.

2    By an interlocutory application dated 18 February 2022, the appellant sought to have those orders set aside. All the respondents have given their consent to the relief sought by the appellant.

3    The parties are agreed that the Court made an erroneous finding of fact regarding the date of the Panel’s publication of the summary of the conference held by it with some of the Commissioner’s staff on 8 May 2020. This factual error only affects ground 3 of the notice of appeal and the Panel’s notice of contention and not either grounds 1 or 2.

4    For the following reasons, we consider that orders 1 to 3 dated 21 January 2022 should be set aside and replaced with other orders which give effect to these supplementary reasons for judgment. The parties should be given an opportunity to seek to agree orders relating to both the appeal and the trial, including as to costs.

Background

5    By majority (Griffiths and O’Callaghan JJ), in First Full Court the Court ordered inter alia that all three of the appellant’s grounds of appeal be dismissed, that the appellant pay the first respondent’s costs (as agreed or taxed) and that there otherwise be no order as to costs. These are the orders which are the subject of the interlocutory application.

6    As noted above, the interlocutory application relates only to ground 3 of the notice of appeal and the Panel’s notice of contention. Ground 3 of the notice of appeal claimed, in brief, that the primary judge erred in not upholding the appellant’s claim that the Panel denied it procedural fairness by not disclosing the substance of the conference which the Panel held with some of the Commissioner’s staff on 8 May 2020, on the basis that the failure of the Panel to comply with procedural fairness requirements was not a material error. The Panel’s notice of contention claimed that the primary judge erred in finding that the Panel had failed to comply with the requirements of procedural fairness.

7    The majority’s reasons for upholding the Panel’s notice of contention (and therefore rejecting the appellant’s claims under ground 3) are set out in First Full Court at [61] to [80]. In brief, the majority found that there was no procedural unfairness because the Panel had published a summary of the 8 May 2020 conference (while not disclosing any confidential information) prior to finalising its review (see, in particular, at [63] and [67]-[68]). Accordingly, the majority found that the appellant had an opportunity to respond to that summary prior to the Panel finalising its review.

8    It is accepted that this finding was in error and was based on a misunderstanding by the majority of the date on which the Panel’s summary was published. In fact, that summary was not published until after the Panel had finalised its review and not beforehand. As the appellant pointed out in its written submissions in support of its interlocutory application, Thawley J in dissent may have had the same misunderstanding.

9    In its written submission in support of the interlocutory application, the appellant explained that, rather than pursuing an application for special leave to appeal, a more efficient approach is for the Court to set aside the current relevant orders under r 39.05 of the Federal Court Rules 2011 (Cth) (2011 FCRs) and re-determine the appeal in relation to both ground 3 and the Panel’s notice of contention. The appellant acknowledged that this would not require any further consideration of grounds 1 and 2.

10    As previously noted, all the parties consent to the setting aside of the earlier orders and support the Court reconsidering the matter on the limited basis indicated. The parties were also content for ground 3 of the notice of appeal and the notice of contention being reconsidered on the basis of written and oral submissions already made to the Court.

11    We are satisfied that this is an appropriate case in which to set aside the relevant current orders by relying upon r 39.05(f) of the 2011 FCRs, which confers upon the Court a discretion to set aside a judgment or order after it has been entered if the party in whose favour the order was made consents. The relevant principles guiding the exercise of that discretion are discussed in cases such as Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 7) [2011] FCA 715 at [21]-[23] per Flick J; Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869 at [13]-[18] per Griffiths J and see also O’Rafferty v The Queen (No 2) [2014] ACTCA 52; 10 ACTLR 278 at [42]-[46] per Murrell CJ, Penfold and Ross JJ. All the parties consent to the setting aside of the relevant current orders and it does not appear that this course would have an adverse effect on any third party rights or interests. Nor are we aware of any other relevant matter which would weigh against upholding the interlocutory application by consent.

Ground 3 of notice of appeal

12    We respectfully agree with the primary judge’s reasons and conclusion that the Panel was obliged to accord the appellant procedural fairness in the course of it conducting the review. We also respectfully agree with his Honour’s finding at [101] that nothing prevented the Panel from providing the appellant with a non-confidential summary of the substance of the meeting. It is evident from [53] of the Panel’s reasons that it took into account some of the information it obtained at that meeting.

13    Moreover, we respectfully agree with the primary judge’s conclusion at [102] that the Panel failed to comply with the requirements of procedural fairness by holding a secret conference and then not disclosing the substance of the (non-confidential) information it had obtained which was relevant to its decision-making task and adverse to the appellant’s interests and not permitting the appellant an opportunity to respond to that information, whether by proffering evidence or further submissions.

14    The terms of the non-confidential summary which was published by the Panel after it finalised the review are set out at [67] of First Full Court. That summary demonstrates that it was practicable for the Panel to provide such a non-confidential summary to the appellant prior to finalising the review, in accordance with procedural fairness requirements. We do not accept the Panel’s submission that there was no procedural unfairness because the appellant could have provided submissions on any of the issues which it understood were being considered by the Panel prior to the review being finalised. This submission fails adequately to recognise the distinction between broad general issues and particulars of relevant information obtained by the Panel relating to those issues as reflected in the non-confidential summary. The failure to provide the appellant with such a summary until after the Panel finalised its review meant that the appellant was denied the opportunity to respond to the matters contained in the non-confidential summary which may have induced the Panel to make a different decision to that which it did.

15    For the reasons given below in relation to the second limb of the Panel’s notice of contention, we respectfully disagree with the primary judge’s conclusion that the Panel’s denial of procedural fairness was immaterial.

16    For these reasons ground 3 of the notice of appeal should be upheld.

Notice of contention

17    As noted at [62] of First Full Court, the Panel’s notice of contention claimed that the primary judge should have found that there was no procedural unfairness because:

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

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

18    The upholding of the Panel’s notice of contention (see First Full Court at [80]) was necessarily connected to the misunderstanding that the Panel had published the summary prior to finalising its review. It necessarily followed from that erroneous finding that the appellant suffered no practical injustice because, in that particular circumstance, the appellant was not denied an opportunity to respond to the substance of what occurred at the meeting prior to the Panel finalising its review. Since the premise of that reasoning has now been shown to be erroneous, it is necessary to revisit the issue of practical injustice as well as address the first limb raised by the notice of contention.

19    For the following reasons, we would dismiss both limbs of the notice of contention.

20    First, we do not accept the Panel’s contention that the relevant statutory scheme should be viewed as effectively an exhaustive statutory code of procedural fairness requirements. As the primary judge correctly observed at [95], a statute is not to be construed so as to remove a decision-maker’s procedural fairness obligations unless that intention is made clear by express or necessary intendment (see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252). While it should be acknowledged that the statutory scheme contains several provisions which are directed to some matters which ordinarily would be encompassed by general procedural fairness requirements, those provisions fall short of constituting an exclusive procedural code. It is notable, for example, that the statutory scheme does not contain an express provision along the lines of ss 422B(1) and (2) of the Migration Act 1958 (Cth) which provide that specified provisions and groups of provisions in that legislation are taken to be an exhaustive statement of the requirements of procedural fairness in relation to the matters with which they deal (see generally Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421). Nor does any intention that the statutory scheme constitute an exclusive procedural code arise by implication.

21    The Panel has not persuaded us that the primary judge erred in his reasoning at [95] to [97] as to why the statutory scheme did not preclude procedural fairness requirements, while accepting as his Honour correctly did at [98] that the requirements of procedural fairness in any particular case depends upon the relevant circumstances, the statute governing the proceeding and the context in which those relevant circumstances arise.

22    As to the second limb relating to practical injustice, once it is acknowledged that the Panel’s summary was not published prior to it finalising the review, we do not accept that the appellant suffered no practical injustice. The practical injustice is inherent in the fact that the appellant was not afforded a prior opportunity to consider and respond to the substance of the 8 May 2020 conference. As noted in First Full Court at [64], it is well settled that procedural fairness requirements must be adjusted where confidential information is involved. In our view, procedural fairness obliged the Panel to disclose to the appellant prior to finalising the review a summary of the 8 May 2020 conference, without disclosing any confidential material. The summary which was published after finalisation of the review adequately disclosed the substance of the relevant contents of the meeting while protecting confidential information. Procedural fairness requirements operated to oblige the Panel to provide to the appellant information such as that contained in the summary but prior to finalising the review so as to provide the appellant with an opportunity to respond to that information.

23    I reject the Panel’s submission that, in view of the terms of s 269ZZT, it was not at liberty to consider any further submissions or material which the appellant might wish to make prior to the Panel finalising the review. The appellant correctly pointed out that s 269ZZRA(1) authorises the Panel to accept submissions from an applicant (by way of a conference) and that authorisation effectively becomes a duty to accept such submissions when read with the implied obligation to conform with procedural fairness requirements. As the Explanatory Memorandum to the Customs Amendment (Anti-Dumping Measures) Bill (No. 1) 2015 (Cth) (EM) (which inserted s 269ZZRA) explains, the intent of s 269ZZRA(1) is to “allow the [Panel] to call conferences to gather further information to aid it conducting an efficient and robust review” (emphasis added).

24    This obligation of procedural fairness to provide a non-confidential summary of the substance of the 8 May 2020 conference is reinforced by s 269ZZX(1)(a)(iv), which requires the Panel to maintain on the public record a summary of further information obtained at a conference under s 269ZZRA. As the EM explains, the insertion of this requirement is “[f]or the purposes of transparency and procedural fairness” (emphasis added). As the non-confidential summary of the 8 May 2020 conference was not published until after the Panel’s review was concluded, it was necessarily not consistent with the intent of s 269ZZX(1)(a)(iv) to afford procedural fairness to interested parties including the appellant.

25    Finally, we respectfully disagree with the primary judge’s conclusion that the Panel’s breach of its procedural fairness obligations was not material. It appears that his Honour’s attention was not drawn to relevant caselaw, including what Gageler and Gordon JJ said in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [57]-[60] (footnotes omitted and emphasis added):

57    That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to “avoid practical injustice”, and with his Honour's conclusion in that case that there was no denial of procedural fairness where “[n]o practical injustice ha[d] been shown”. The absence of practical injustice in Lam lay in the fact that “[t]he applicant lost no opportunity to advance his case”; it was not “shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”.

58    Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.

59    There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.

60    Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

(This has subsequently been approved in cases including National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [70] per Flick, Mortimer and Banks-Smith JJ; Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555 at [54] per Jagot, Robertson and Farrell JJ; Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 at [39] per Allsop CJ (Collier J agreeing); Dunn v Minister for Immigration and Border Protection [2018] FCAFC 233; 267 FCR 246 at [57]-[58] per Charlesworth J (Steward J agreeing) and BSX15 Minister for Immigration and Border Protection [2017] FCAFC 104; 249 FCR 1 at [58]-[59] per Barker, Robertson and Burley JJ. See also Nathanson v Minister for Home Affairs [2020] FCAFC 172; 281 FCR 23 at [50]-[58] (Wigney J (dissenting)), from which the High Court has granted special leave: Nathanson v Minister for Home Affairs [2021] HCATrans 170 (15 October 2021).

26    In other words, practical injustice was occasioned to the appellant because it was denied the opportunity to address the non-confidential substance of the 8 May 2020 conference prior to the Panel finalising its review (see Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; 255 FCR 482 at [107] per Dowsett, Murphy and White JJ).

27    In any event, assuming without deciding that the appellant had to demonstrate that it was deprived of a realistic possibility of a successful outcome (MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 560 at [2]-[5] per Kiefel CJ, Gageler, Keane and Gleeson JJ), we accept its submission that it could have provided responsive expert economic evidence on the correct relationship of profit margins and price determination and/or submissions that relationships and arrangements between corporate entities in the same multinational group were “evidence of (and appearance of) influence” in a market if it had been informed of the non-confidential substance of the 8 May 2020 conference, which material may have persuaded the Panel to reach a different conclusion. We do not accept the Panel’s submission to the effect that the non-confidential summary would not have disclosed anything that the appellant had not already had an opportunity to address.

28    For these reasons, the appeal should be allowed in respect of ground 3 and the notice of contention rejected.

Conclusion

29    For these reasons, we consider that the interlocutory application should be upheld. The parties should seek to agree orders which give effect to these supplementary reasons for judgment, in respect of both the appeal and the trial, including as to costs. If agreement cannot be reached, by no later than 18 March 2022, each party should file and serve an outline of submissions not exceeding three pages in length setting out its proposed orders and supporting submissions. The Court will then finalise orders on the papers and without a further oral hearing.

Associate:

Dated:    8 March 2022

REASONS FOR JUDGMENT

THAWLEY J:

30    For the dissenting reasons given in Wilson Transformer Pty Ltd v Anti-Dumping Review Panel [2022] FCAFC 4, I considered each of the three grounds of appeal had been made out and would have allowed the appeal. In relation to ground 3 specifically, I have already expressed my view that: (a) the Panel’s power of review, including its power to obtain information on the review, is conditioned on a duty to afford natural justice: at [152]; (b) what procedural fairness requires depends upon the particular facts and the statutory context: at [153]; (c) in the circumstances, the Panel ought to have informed (but did not inform) Wilson of the substance of the information communicated during the conference in a way which appropriately preserved confidentiality: at [163]; and (d) if procedural fairness had been afforded, the possibility of a different outcome could not be excluded: at [163]. Because the ADRP Conference Summary was in any event inadequate, the date of its publication is not essential to my reasoning. I agree with Griffiths and O’Callaghan JJ that, in the circumstances their Honours describe in their joint reasons, orders 1 to 3 dated 21 January 2022 should be set aside. I concur in the orders proposed.

Associate:

Dated:    8 March 2022

SCHEDULE OF PARTIES