CATCHWORDS
ADMINISTRATIVE LAW - Judicial Review of Administrative Decision - particular approach adopted in previous unrelated matter - whether law requires consistency of approach - error of law not to be perpetuated.
CUSTOMS AND EXCISE - The Importation of Goods - Anti-Dumping - challenge to determination of export price - sale and resale through intermediary - decision made under 260TAB(1)(c) - whether 269TAB(1)(a) ought to have been applied - importer purchased goods from intermediary.
CUSTOMS AND EXCISE - The Importation of Goods - Anti-Dumping - sale and resale through intermediary - identification of exporter - meaning of exporter - in cases involving an intermediary, exporter to be determined by characterisation of intermediary's role with respect to the manufacturer and importer - on the facts intermediary no more than an instrument of manufacturer.
CUSTOMS AND EXCISE - The Importation of Goods - Anti-Dumping - normal value - use of currency in circulation at the time - usual procedure - direction of Minister - failure to follow direction in its terms - misdescription in direction - subsequent calculations not compromised.
CUSTOMS AND EXCISE - The Importation of Goods - Anti-Dumping - finding of material injury - corporate groups - companies related to local manufacturer importing dumped goods - allegation that harm 'self-inflicted' - finding that importers operated independently - sufficiency of evidence - failure to establish Wednesbury unreasonableness.
Administrative Decisions (Judicial Review) Act 1977
Customs Act 1901, s269TAC(8); 269TAB(1)(a); 269 TAB(1)(c)
Customs Tariff (Anti-Dumping) Act 1975, s8(5)
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 2 KB 223
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 460-462
ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Pilkington (Australia) Ltd v Anti-Dumping Authority (1995) 56 FCR 424
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121
Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523
Vredelco Food Industries Pte Ltd v Anti-Dumping Authority, unreported, 22 November 1994
COMPANHIA VOTORANTIM de CELULOSE e PAPEL (Applicant) v ANTI-DUMPING AUTHORITY (First Respondent), CHRISTOPHER CLELAND SCHACHT IN HIS CAPACITY AS MINISTER FOR SCIENCE AND SMALL BUSINESS (Second Respondent) AUSTRALIAN PAPER LIMITED (Third Respondent)
No ACT G16 of 1994
FINN J
CANBERRA
19 April 1996
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 16 of 1994 DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: COMPANHIA VOTORANTIM
de CELULOSE e PAPEL
Applicant
AND: ANTI-DUMPING AUTHORITY
First Respondent
AND:CHRISTOPHER CLELAND SCHACHT IN
HIS CAPACITY AS MINISTER
FOR SCIENCE AND
SMALL BUSINESS
Second Respondent
AND:AUSTRALIAN PAPER LIMITED
Third Respondent
COURT: FINN J.
PLACE: CANBERRA
DATE: 19 APRIL 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 16 of 1994 DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: COMPANHIA VOTORANTIM
de CELULOSE e PAPEL
Applicant
AND: ANTI-DUMPING AUTHORITY
First Respondent
AND:CHRISTOPHER CLELAND SCHACHT IN
HIS CAPACITY AS MINISTER
FOR SCIENCE AND
SMALL BUSINESS
Second Respondent
AND:AUSTRALIAN PAPER LIMITED
Third Respondent
COURT: FINN J.
PLACE: CANBERRA
DATE: 19 APRIL 1996
REASONS FOR JUDGMENT
This is an application in which the
applicant, Companhia Votorantim de Celulose e Papel ("Celpav") seeks
an order of review under the Administrative
Decisions (Judicial Review) Act 1977, ("the ADJR Act") of
decisions of both the Anti-Dumping Authority ("the ADA"), the first
respondent, and the Minister for Science and Small Business ("the
Minister"), the second respondent.
Parallel relief in respect of the same
general matters of complaint was sought by way of orders of prohibition and
injunction pursuant to the Judiciary Act
1903, s39B. The third respondent,
Australian Paper Ltd, was joined by an order of this Court made by consent on
11 March 1994. That company is a
successor to the papermaking operations of Australian Pulp and Paper Mills Pty
Ltd ("APPM"). It was APPM which lodged the original application under
the Customs Act 1901 that led
ultimately to the decisions challenged in this application.
I should note at the outset that there is a question whether the relevant decisions of the ADA are such final or operative ones as admit of review under the ADJR Act: see Vredelco Food Industries Pte Ltd v Anti-Dumping Authority, an unreported decision of Neaves J of this Court of 22 November 1994; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Nonetheless no particular significance has been attached to this question by the parties given (a) that the ADA's "decisions" (its recommendations to the Minister in ADA Report No 119) have been acted upon by the Minister in his decisions; and (b) that those decisions, to the extent that they in turn are final or operative, are clearly amenable to review under the ADJR Act.
The Context of the Application
Celpav, the name commonly given the applicant, is a Brazilian company. It manufactures a variety of types of paper, one of which is imported into Australia and which is the subject of the present application. That is A4 white copy paper of the kind used in photocopiers and computer printers. This A4 paper is sold in Australia in competition both with many overseas manufacturers and with local Australian producers.
On 13 May 1993 one of the two Australian producers (APPM) lodged an application with Customs under the Customs Act 1901, s269TB ("the Act") requesting that anti-dumping measures be put in place against exports of A4 copy paper from (inter alia) Brazil.
Customs completed such inquiry as it was required to make under the Act (conveniently described in Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523) on 28 September 1993. It referred its positive preliminary finding of dumping by (inter alia) Celpav to the ADA for final inquiry and report. The ADA produced its report - Report No 119 ("the ADA Report") - in January 1994 in which it made certain recommendations to the then Minister.
The first decision challenged in these proceedings (I here paraphrase) is that of the ADA in the ADA Report which makes recommendations to the Minister concerning Celpav's export of A4 copy paper to Australia.
On 3 February the Minister accepted the ADA's recommendations and in so doing made five consequential decisions of 3 and 4 February under, variously, the Act s269TG(1), the Customs Tariff (Anti-Dumping) Act 1975, s8(5), and the Act, s269TAC(8) and s269TAB(1)(c). It is unnecessary at this stage to note the detail of those various decisions. All are under challenge in these proceedings.
I should indicate for the sake of completeness that it is not alleged in this application that there has been any failure on the part of Customs, the ADA or the Minister to follow the statutorily prescribed procedures for dealing with dumping complaints: on which see Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 460-462.
Dumping and the Legislative Scheme
This Court has on a number of occasions considered the subject of dumping and its legislative treatment in the Act and the Customs Tariff (Anti-Dumping) Act 1975: see e.g. ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564. As to these, suffice it to say for present purposes that dumping occurs - and I am content here to use the language of the ADA's Report p14 -
" ... when the export price of a product is less than the normal value of the same or a similar product in the domestic market of the country of export."
I simply indicate in passing that the Act s269TAB and s269TAC provides the means for determining the "export price" and the "normal value of goods" respectively, in individual cases.
For present purposes, though, even when goods exported to Australia can properly be said to have been dumped, the imposition of dumping duties envisaged by the Customs Tariff (Anti-Dumping) Act 1975 can only be brought into play if the Minister is satisfied that because of that dumping "material injury" has been or is being caused or is threatened to an Australian industry producing like goods: the Act, s269TG(1) and see also ICI Australia Operations Pty Ltd v Fraser, above. The Act again makes provision for the determination of "material injury": the Act, s269TAE.
For the point to be reached, then, where dumping duties are imposed in a given instance three legislatively mandated determinations must be made. These are (1) the export price (s269TAB); (2) the normal value of the good (s269TAC); and (3) if (1) is less than (2), whether because of this there has (etc) been material injury (s269TAE).
The applicant's case as reflected in its written submissions to this Court challenges all three determinations made by the ADA and hence by the Minister. To these challenges I now turn. In so doing I should indicate that the parties have provided me with a bundle of documents which, they agree, constitute all relevant evidence available to the ADA and the Minister. Documents in this bundle will be referred to as "Document No" coupled with the appropriate numerical designation.
1. The Export Price Determination
(a) The statutory provision
Insofar as relevant for present purposes, the Act, provides:
"269TAB. (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
...
(c) in any other case - the price that the Minister determines having regard to all the circumstances of the exportation."
To anticipate matters the first and
principal complaint made by Celpav is that the determination made as to the
export
price of its paper was made incorrectly and in error of law for the reason that
it was made under sub-section (1)(c) rather than under sub-section (1)(a). All parties agree that sub-section (1)(b)
which has not been reproduced here is of no present relevance.
(b) The factual setting
It is not in dispute between the parties that the A4 copy paper manufactured by Celpav constitutes the relevant "goods exported to Australia". Nor is it disputed that s269TAB(1)(c) only comes into play if the requirements of sub-section (1)(a) are not satisfied. What is disputed is which of the two sub-sections is the one properly to be applied in the circumstances of this case. To resolve this it is necessary, first, to describe in a little detail both the business of Celpav and the manner in which Australian buyers purchased paper manufactured by it.
Celpav, which is part of a group which is Brazil's largest private conglomerate, only began manufacturing paper in 1991: see Document 10, pp1-2; Document 18, p3. Its sales to Australia are effected through DaiEi Papers Ltd ("DaiEi") a Japanese trading company, that company being so used by Celpav because of its international sales organisation.
Celpav had in fact appointed DaiEi its "exclusive agent" for the sale of its products in (inter alia) Australia: see Document 12. That agency agreement appears never to have been activated at least in relation to sales to Australian buyers. It is agreed by the parties to the present application that, in relation to the sales examined in this dumping complaint, DaiEi did not act merely as an agent for Celpav.
The procedure adopted in filling orders from Australian buyers - and the only buyer identified in this matter is Edwards Dunlop Paper ("Edwards Dunlop") - was as follows.
1. Edward Dunlop placed its orders for Celpav manufactured paper with DaiEi.
2. DaiEi then ordered the paper from Celpav.
3. Celpav shipped the paper direct to Australia but invoiced DaiEi for it on a C&F basis.
4. DaiEi paid Celpav for the paper.
5. DaiEi invoiced Edwards Dunlop, again on a C&F basis.
6. Edwards Dunlop paid DaiEi for the paper.
As the ADA Report notes, the price charged by DaiEi "is the sum of the price it pays to Celpav and an amount for costs incurred by DaiEi".
Put shortly, and the parties do not demur to this, the procedure adopted has been one of sale and resale and not one of direct dealings between Edwards Dunlop and Celpav.
(c) The parties' contentions
For s269TAB(1)(a) to be brought into play the goods in question must "have been purchased by the importer from the exporter". Edwards Dunlop clearly enough is here the importer. But there is disagreement (a) as to who was the exporter; and (b) if the exporter was Celpav, whether Edwards Dunlop could be said to have purchased from it.
The applicant's submissions in the alternative are -
(a) that the facts of the present case are "materially identical" with those of Pilkington (Australia) Ltd v Anti-Dumping Authority (1995) 56 FCR 424 where, for the purposes of the particular question raised for the consideration of the Full Court, it was not disputed that s269TAB(1)(a) was applicable to the relationship of an Indonesian manufacturer and an Australian importer notwithstanding that, as here, the process involved in the export and import of the relevant goods was by way of sale and resale through a Singaporean company; or
(b) that the exporter was DaiEi -
so that in either case s269TAB(1)(a) is the applicable provision to be applied in determining the export price.
The respondents' submissions in contrast are -
(i) that because of the sale and resale it cannot properly be said that, if Celpav was the exporter, the goods were purchased from Celpav; and
(ii)the term "exporter" in the subsection refers to person or entity which sends goods from one country to another and that this necessarily was Celpav.
AP in its submissions sought to reinforce this conclusion by reference to the effect of the C&F contract between Celpav and DaiEi.
As considerable attention was given in all submissions to the Full Court's decision in Pilkington (Australia) Ltd v Anti-Dumping Authority, above, it is appropriate at the outset to consider its bearing on the question before me.
Put briefly, the facts of Pilkington were that an Indonesian manufacturer of glass (AFG), on receiving orders from a Singaporean company (AS) which in turn received orders from Australian buyers through an Australian company (OGA), exported the glass direct to the Australian customer but invoiced AS for the goods. AS in turn invoiced OGA. The price so charged by AS included the price invoiced to it by AFG as well as a charge for AS commission on the sale.
The ADA in that case treated AFG as the exporter and OGA as the importer and applied s269TAB(1)(a) to calculate the export price. As indicated in the joint judgment of Lockhart and Beazley JJ (at 427), there was "no dispute that in the circumstances s269TAB(1)(a) was applicable": see also per Lee J at 432. The applicability of the subsection not being called into question, the issue that needed to be determined was as to the effect of its application, i.e. was the AS commission charge a charge "arising after exportation"? This question was answered in the negative and the export price was to be computed accordingly.
It is the matter presupposed in Pilkington that is the one called into question before me. While the joint judgment of Lockhart and Beazley JJ does not openly question the assumption on which the parties proceeded in that case, Lee J's reasons in contrast (431 - 432) leave little doubt, in my view, that his Honour thought that the appropriateness of the assumption could not be accepted as of course. I should add that I share his Honour's reservations.
Pilkington cannot, in my view, properly be regarded as authority preordaining the answer to be given to the question before me. Had this question been agitated in that case it may well be that the Court would have found s269TAB(1)(a) to be inapplicable to the circumstances found there. In consequence I approach the question before me as one unaffected by direct authority binding on me.
With all parties agreeing that the procedure adopted here was one of sale and resale, it is not in my view open to hold that Edwards Dunlop purchased the goods from Celpav. Edwards Dunlop contracted only with DaiEi. It equally is not open in my view to suggest that subsection TAB(1)(a) should be subjected to an interpretation based on the alleged "substance" of the various transactions between the parties so as to produce the conclusion that Edwards Dunlop's purchase was, in reality, from Celpav. Far from inviting a disregard of the actual transaction entered into by the importer, the subsection in terms invites direct consideration of that transaction - of the price payable for the purchase, of whether the transaction is an arms length one, etc. Moreover the sub-section uses the purchase price paid as the basis for computing the export price because, it seems to me, it presupposes that the purchase price will be received by the exporter who is the other party to the transaction.
In the event then, on the assumption that Celpav is the "exporter" for the purposes of the subsection, I find that the subsection itself cannot be used for determining the export price. This is because the importer has not purchased the goods from Celpav. Accordingly I reject the first alternative submission of the applicant.
I should add that associated with that submission was a subsidiary one the burden of which is that, having treated the transactions in Pilkington as being within s269TAB(1)(a), the ADA should as a matter of consistency have treated the present transactions in like fashion and that its failure to do so may itself amount to an abuse of power: cf Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121 at 130 - 132. What this means in other words is that the ADA, having once made a mistake of law must perpetuate its error by persisting in that mistake in its subsequent treatment of Celpav. Seemingly, in such circumstances, to apply the law to Celpav as Parliament intended it be applied was to commit an abuse of power. I reject the invitation to countenance such a submission in this context.
The conclusion that, if Celpav is the exporter, then s269TAB(1)(a) is not applicable to determine the export price does not end the matter. The question still remains as to who for present purposes is the exporter - Celpav or DaiEi? As I have noted, the applicants' alternative submission is that the exporter is DaiEi and for that reason s269TAB(1)(a) is the applicable subsection in any event for determining the export price.
In Pilkington, Lee J expressed the view (at 431) that:
"An entity which carries on business as a supplier of goods to an importer and which, in the conduct of that business, contracts for a manufacturer to export the manufacturer's goods directly from country of origin to the importer, may be the exporter of the goods for the purpose of s269TAB(1)(a) of the Act."
Celpav's alternative submission is founded on this admittedly obiter comment.
As enlarged upon in oral submission, Celpav's submission seemed to involve the following:
(1) Brazil was the country of export, it being agreed that the paper did not reach Australia via Japan;
(2) as a factual phenomenon the export of goods involves their being sent out of one country to another, but to determine who was the exporter one does not look merely to whom it was that sent the goods out of the country;
(3) it was DaiEi which both purchased the paper from Celpav and which, because of its contract with Edwards Dunlop, caused the paper to be sent out of Brazil to Australia;
(4) not itself being the importer of the paper it purchased and being the real cause of the paper's export from Brazil, DaiEi should properly be regarded as the exporter for subsection TAB(1)(a) purposes - the more so given that it is the unilateral action of DaiEi in setting the purchase price for the goods (and in a way which compensates for its own marketing of the paper) which determined the price to be paid by Australian buyers.
The respondents' submissions in contrast accept the same factual view of what constitutes export - i.e. it is the sending of goods from one country to another. But it is their respective submissions that it is the person or entity which so sends the goods which is the exporter and Celpav clearly sent the goods in the instant case. AP submitted in aid of this that not only did DaiEi not have any physical involvement in the exportation other than directing Celpav to ship the goods to Edwards Dunlop, but also Celpav's invoice to DaiEi was on a C&F basis with shipping thus being the responsibility of Celpav.
It is the case that both in submissions made on its behalf to the ADA (see Document No 9, p1 and Document No 11) and in the Brazilian "Declaracao De Exportaca" (Document 14), Celpav perceived itself to be the exporter of the paper. Whether or not that self-perception is correct for the purpose with which I am concerned is the issue I have to determine.
Before considering these submissions I should note that while the Act defines "importer" for the purposes of this particular part of the legislation - see s269T - "exporter" is left undefined. I would equally note that such dictionary definitions of "exporter" as there are are apt to define the term in the predictable way as "one who exports" with "export" in terms being defined in its commercial usage (whether directly or via the term "exportation") as "the carriage or sending out of commodities from one country to another": see e.g. Compact OED, 552 (2nd Ed); Shorter OED Vol 1, 707.
It equally needs to be said that unlike in the United States where constitutional considerations have come into play - see The Constitution Art 1 para 9 cl 5; and 25 Corpus Juris Secundum, "Customs Duties", para 2 - courts in this country have not been called upon to enlarge in any significant way on the possible meanings of the term "export", let alone "exporter". I designedly use the plural in referring to possible meanings as it is the case that the statutory contexts in which the terms are used and the purpose of their use can contrive the meaning which properly should be given to them in a particular setting - a phenomenon recognised by the Court of Appeal of British Columbia in R v Wulff (1970) 74 WWR 549; and see e.g. Customs and Excise Management Act 1979 (UK), s1(1) "exporter".
It is in my view neither necessary or desirable for me to attempt to define "exporter" in any comprehensive way for the purposes of the anti-dumping provisions of the Act. Even within these provisions it is clear that the term can be applied to at least three quite different categories of case - (i) unipartite export, where the importer is the exporter; (ii) bipartite export, characteristically involving sale, where the only parties are importer and exporter; and (iii) multipartite export, where, as here, there is a sequence of dealings surrounding exportation and importation. It is only with the third of these that I am concerned. I emphasise this because considerations which may provide effective criteria for identifying an exporter in the first two categories - e.g. beneficial ownership of the goods - may be of less significance in the third.
These comments made I now turn to the immediate issue.
I do not dissent from the view of Lee J in Pilkington quoted above that the supplier of goods to an importer may be an exporter for s269TAB(1)(a) purposes notwithstanding that the physical exportation of those goods to the importer has been effected directly by the manufacturer from whom the supplier purchased the goods. The emphatic word in this, though, is "may". And I should indicate immediately that I do not regard the present circumstances as ones in which DaiEi should properly be said to be the exporter.
The mere fact of a sale and resale in an export context such as this is not of itself sufficient, in my view, to constitute the reseller an exporter as of course. To this extent I agree with the submission made on behalf of the ADA and the Minister that a party is not transformed into an exporter simply because it contracts to sell to the importer. The general structure of s269TAB can be said, at least impliedly, to support this view to the extent that subsection (1)(c) is capable of covering a situation where there are sequential contracts with an intermediate party standing between the importer and a manufacturer/exporter: see also Feaver and Wilson, "An Evaluation of Australia's Anti-Dumping and Countervailing Law and Policy", (1995) 29 Jo of World Trade 207 at 226 where a like conclusion is reached.
Similarly it is not necessary, in my view, that to be an exporter, an entity must (as the respondents submit) have some direct physical involvement in the movement of the goods out of the country. Both subsections (1)(a) and (1)(b) of s269TAB in their exclusions contemplate the contingency of an importer also being the exporter. It is not apparent to me why for that to be the case, the importer would have actually to go to the country of export and to then procure the sending of the goods to the country of import as the respondents' submissions would require. Possessing and exercising a real, practical capacity to cause exportation may suffice in some circumstances.
Further, whatever may be the case with unipartite or bipartite export, I do not consider that it is, or should be essential that, at the time the goods actually leave the territory of the country of origin, they need to be beneficially owned by the exporter. Questions of the export of stolen, trust, or disputed property apart, the variable impact that modern contracting techniques can have on questions of beneficial ownership should not adventitiously contrive the identity of the exporter. For this reason I am unable to accept the AP's submission insofar as it suggests that the form of the contracts used in this case (i.e. C&F contracts) of itself determines the identity of the exporter.
The attribution or non-attribution of the label exporter to an intermediate party in the position of a company such as DaiEi should turn in my view upon a characterisation made of its role vis-a-vis both the Australian importer and the manufacturer in the latter's sale of, and the former's acquisition of, the goods in question.
If one looks to DaiEi's role in the sale of Celpav manufactured goods in Australia it is distinctive and particular. As Customs indicated in its findings, lacking its own presence in Australia Celpav utilised DaiEi to co-ordinate its Australian sales, going so far as to enter into an exclusive agency agreement with DaiEi which seems not in fact to have been put into effect: Document No 18, p5. In the event, as Customs suggested (Document No 20, p72), DaiEi performed a function analogous to a distributorship. But even that was distinctive. DaiEi only purchased from Celpav as and when an order was placed with it for Celpav's paper. Vis-a-vis Australian buyers it was the sole source of Celpav's product. Vis-a-vis Celpav it was the only instrument employed for the sale of Celpav's goods to Australian buyers. Though not legally related to Celpav, and though it in fact purchased and resold Celpav's product, its role both for an Australian importer and Celpav alike can properly be said to be the marketing vehicle or instrument of Celpav for the purpose of the sale of Celpav's product in Australia.
Notwithstanding that it was DaiEi which gave the direction to Celpav to ship to Edwards Dunlop so causing the product to be sent out of Brazil, it would be quite inappropriate to characterise DaiEi as the exporter in this matter. DaiEi was, in my view, no more than the facilitator or instrument of Celpav's export of its product to Australia - a market selected by Celpav not by DaiEi. For this reason I am of the opinion that in the result the ADA Report's conclusion that the exporter was Celpav was correct.
Having said this, I would equally suggest that circumstances may exist where a supplier of goods so uses a manufacturer as its instrument in its supply of goods to an importer that the supplier can properly be characterised as the exporter of those goods from the country of origin in question.
In the result then I find that the export price of Celpav's paper was properly determined under s269TAB(1)(c).
In its Amended Application Celpav appears to have challenged the actual decision made by the ADA and Minister as to the export price under subsection TAB(1)(c) on the ground that as used in the Act the term "export price" means the amount paid by the importer and not the amount received by the exporter. Neither in oral nor written submissions was this ground of challenge enlarged upon for the reason, I venture, that it has little to commend it.
Given that the determination made is in accordance with the discretion given by subsection (1)(c), and given the manner in which the conclusion on export price was arrived at in the ADA Report, p21, I can only agree with the submission of the first two respondents that it has not been shown that the respondents exceeded the boundaries of the discretion given by the subsection - cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 - or that it took an irrelevant consideration into account.
2. The Normal Value Determination
The challenge made under this heading is of narrow compass. It is either that the ADA failed to follow the direction given by the Minister under the Act, s269TAC(8) for the purpose of ascertaining the normal value of the goods or that that direction is devoid of clear meaning so that to implement it would lead to unreasonable, capricious or uncertain results. That direction required that the determination of normal value of Celpav's paper should involve calculations expressed in cruzados: see Document No 5. At the time of the direction Brazil's currency was called the cruziero and this carried quite different value from the cruzado.
Between the beginning of 1986 and mid-1994 Brazil experienced hyper-inflation and in this period effected a change to its currency on 6 occasions. The cruzado was the currency from February 1986 to January 1989. The cruziero, from March 1990 to August 1993.
It was the understanding of Customs when making its findings that, unless otherwise directed by the Minister, normal value is to be expressed in the currency of the country of export: see Document 18, p4. This in fact was the course followed. Despite the obvious mistake made by the Minister in designating the local currency, it was, in my view, proper for that direction to be interpreted as one requiring calculation in whatever was the currency at the relevant time. In other words the error amounted merely to a misdescription of the currency that the Minister should reasonably be taken to have intended being used.
It is not suggested that the use of the cruziero compromised and rendered capricious the determination arrived at as to normal value. This ground of challenge is misconceived and I reject it.
I would note that the ADA and the minister have submitted both that the action taken on the direction does not constitute a "reviewable decision" (cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321); and that, in light of subsequent decisions taken leading to the imposition of interim dumping duty, the direction cannot be characterised as one creating an uncertain exercise of power (cf ADJR Act, s5 2(h)). While it is unnecessary to express a conclusion on either of these matters, I am inclined to agree with both submissions.
3. The Material Injury Determination
The ADA Report p49 concluded with the view that -
"...dumped imports have contributed to the injury suffered by the Australian industry and that the contribution was material."
The applicant's challenge to this conclusion, as it informed the decision of the ADA and the Minister is based on what is colloquially referred to as Wednesbury unreasonableness: see ADJR Act s5(2)(g); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 2 KB 223, at 230, 233-234.
To appreciate the particular bases on which this claim is advanced, it is necessary to refer briefly to the participants in the Australian industry.
At the time APPM's application was lodged with Customs there were two producers of A4 copy paper in Australia - APPM and Australian Paper Manufacturers ("APM") which was itself a division of Amcor Ltd. In September 1993 Amcor announced the purchase of the operations of APPM and of the paper merchants Tomasetti, Daltons and The Paper House. In addition Amcor has a 46 per cent shareholding in Spicers, a large paper merchant. The ADA in its Report acknowledged these facts and events: ADA Report pp11, 12 and 13 (with erratum). The paper manufacturing operations of APPM and APM were merged in AP in late 1993.
The paper merchants noted above were themselves "major importers" of A4 copy paper at dumped prices: ADA Report p48. In consequence it could be said that the companies which were causing material injury to the Australian industry were doing so to companies related to them. Of this matter the ADA Report at p48 observed:
"The Authority [i.e. the ADA] understands that these merchants [noted above] operate independently of [AP] and that their purchasing decisions are not controlled by Amcor. The Authority has therefore treated imports by these merchants as competing with sales by [AP]."
Celpav, however, submits that the issue of ownership of the paper merchants is, given the effect of the activities of these merchants, fundamental to the question of causation of material injury. There is, it says, a serious question as to whether that injury is in some way "self-inflicted". While it cannot be said that the ADA did not advert to the question - as witness its acceptance that, despite Amcor's ownership of, or significant shareholding in, the paper merchants, it did not control their purchasing decisions - Celpav nonetheless submits that in failing to give adequate weight to the issue, the ADA and the Minister have been guilty of Wednesbury unreasonableness. In this it relies upon the observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 that:
"...in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'."
Celpav acknowledged the onerous burden to be discharged if its challenge is to be successful.
For their part the ADA and the Minister submit that (1) they were properly informed as to the relationships within the Australian industry - and in this they note that while the manufacturer (AP) and the merchants may have been related companies via Amcor they were not in a parent-subsidiary relationship; (2) documentation was provided by the industry concerning the issue of control over the merchants on at least three separate occasions: see Documents No 19, No 24 and No 25, p2; and on one of these (Document No 24) the industry made detailed responses to allegations concerning (inter alia) control of the merchants made by other interested parties; (3) it has not been demonstrated that the ADA and the Minister were not entitled to rely upon the answers given on behalf of the Australian industry; and (4) if the challenge be to the investigation made of the issue, then, bearing in mind the very limited circumstances in which failure to investigate will invalidate a decision - see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 469-470 - it could not reasonably be said that there was such a failure here given that when the issue was raised, evidence was obtained through submissions, that evidence provided an answer to the issue, and it was evidence upon which the ADA and the Minister could reasonably rely.
Given the onus borne by Celpav - that in the circumstances the decision made was not one open to a reasonable person - I have no hesitation in finding that that onus has not been discharged. Whether additional inquiries on the question of control may have produced a more satisfying decision is not to the point. The issue was addressed and resolved in a way which cannot in my view be said to be manifestly unreasonable. I am in consequence in broad agreement with the submissions made by the respondents.
In the result the applicant having failed to make out any of grounds of challenge to the decisions of the ADA and the Minister, it is unnecessary for me to consider whether the decisions of the former, and which of the various decisions of the latter, constitute "reviewable decisions" for ADJR Act purposes.
I order that the application be dismissed.
I certify that this and the preceding 26 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 18 April 1996
Counsel for the applicant : C M Erskine
Solicitors for the applicant: Clayton Utz
Counsel for the first
and second respondents : R M Henderson
Solicitors for the first
and second respondents : Australian Government
Solicitor
Counsel for the third
respondent: : P Strasser
Solicitors for the third
respondent: : Phillips Fox
Date of hearing : 15 March 1996
Date of judgment : 19 April 1996
