FEDERAL COURT OF AUSTRALIA

Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service [2006] FCA 1644

ADMINISTRATIVE LAW – judicial review – proper construction of Customs Act 1901 (Cth) – whether the Australian Customs Service’ application of provisions of Customs Act involved an error of law – whether the Minister’s decision to impose anti-dumping duties involved an error of law – whether a statement of essential facts must include all material facts – subject matter of enquiry – correct question to be applied – whether the Trade Measures Report must include all material facts – whether non-disclosure deprived the applicant of statutory opportunity to respond – whether Customs failed to conduct an investigation – whether SEF or Report affected by unreasonableness or bias – whether to exercise discretion to refuse relief – application dismissed

Customs Act 1901 (Cth) – s 269TAE, s 269TB, s 269TDAA, s 269TEA, s 269TG, s 269ZJ

Antoun v The Queen (2006) 224 ALR 51  cited

Al Abdullatif Industrial Group Co Ltd v Minister for Justice and Customs [2000] FCA 758  cited

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630  cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1  cited

Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48  followed

C A Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443  followed

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576  followed

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337  cited

Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458  followed

GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309  distinguished

ICI Australia Operations Pty Limited Ltd v Fraser (1992) 34 FCR 564  followed

Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516  cited

Luu v Renevier (1989) 91 ALR 39 followed

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24  cited

Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553  followed

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611  followed

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507  cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323  followed

Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35  cited

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273  cited

Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449  cited

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264  cited

N.V. Beaulieu Real v Minister for Justice and Customs [2002] FCA 467  cited

N.V. Beaulieu Real v Minister for Justice and Customs [2002] FCAFC 339  cited

Pilkington (Australia) Ltd v Minister of State for Justice and Customs (2002) 127 FCR 92  followed

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155  followed

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389  cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212  cited

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425  followed

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668  followed

Swan Portland Cement Limited Ltd v Minister for Small Business and Customs (1991) 28 FCR 135  followed

Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2000) 61 ALD 372  cited

SCHAEFER WASTE TECHNOLOGY SDN BHD v CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE, AUSTRALIAN CUSTOMS SERVICE AND MINISTER FOR JUSTICE AND CUSTOMS

NSD 615 OF 2006

JACOBSON J

29 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the costs of the proceedings. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                                             These proceedings concern the proper construction and application of a number of provisions contained within Part XVB of the Customs Act 1901 (Cth) (“the Act”).  That part lays down detailed procedures for the imposition of anti-dumping duties on goods exported to Australia at an “export price” lower than the “normal value” of “like goods”.

2                                             In September 2005 two Australian companies lodged an application under s 269TB(1) of the Act requesting the Minister for Justice and Customs to publish a dumping duty notice in respect of goods exported to Australia from Malaysia.  The goods the subject of the notice are mobile garbage bins (MGBs), more commonly known as “wheelie bins”.

3                                             The companies which lodged the application claimed that the export of the MGBs to Australia at dumped prices caused material injury to the Australian industry.

4                                             The CEO of Customs accepted the application and was thereby required to give public notice of his acceptance including full details of the investigation process involved in arriving at a decision by the Minister whether to publish a dumping duty notice; see s 269TC(4).

5                                             The Act provides for a multi-staged fact finding and decision-making process which is intended to treat all interested parties fairly, giving them an opportunity to comment on facts proposed to be relied upon by the CEO as the basis for his or her recommendation to the Minister; Pilkington (Australia) Ltd v Minister of State for Justice and Customs (2002) 127 FCR 92 at [56].

6                                             One of the steps in the process is for the CEO to place on public record a statement of essential facts, usually described by the acronym “SEF”.  The SEF is to contain a statement of the facts on which the CEO proposes to base a recommendation to the Minister as to whether or not to impose duties; see s 269TDAA.

7                                             A further step in the process is for the CEO, after holding an investigation into the application, to report to the Minister.  The report is to recommend, amongst other things, whether the Minister ought to be satisfied as to the necessary matters before publishing a dumping notice; s 269TEA.

8                                             The CEO published an SEF on 20 February 2006.  He provided a report, known as the Trade Measures Report No 108, to the Minister on 4 April 2006.  The Trade Measures Report found that the MGBs exported from Malaysia to Australia were dumped by a margin of 6.21%.

9                                             The Trade Measures Report also found that there was a causal link between the dumped imports and injury to the Australian industry.  The injury caused by the dumping was found to be material.  The CEO recommended that the Minister publish country wide dumping duty notices on MGBs from Malaysia.

10                                          The applicant in these proceedings, Schaefer Waste Technology Sdn Bhd (“Schaefer”), the Malaysian manufacturer of the MGBs in question and a related company of the Singaporean based exporter, seeks to challenge the “conduct and/or decision” involved in the following:

·                     the making of the SEF by the CEO

·                     the making of the Trade Measures Report by the CEO

·                     the subsequent declaration by the Minister that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) applies to the export of MGBs from Malaysia.

11                                          Schaefer’s challenge relies upon the Court’s jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and s 39B of the Judiciary Act 1901 (Cth) (“the Judiciary Act”).

Statement of Essential Facts (the SEF)

12                                          The gravamen of Schaefer’s attack on the SEF is that it fails to set forth material facts disclosed to Customs in the course of its investigation and, to the extent that it does set out material facts, the SEF does so in a misleading way.  Schaefer contends that the SEF was therefore not prepared in accordance with law and that it thereby vitiates the subsequent Trade Measures Report as well as the Minister’s decision.

13                                          Schaefer makes this claim notwithstanding that it took up the statutory opportunity accorded to it to make submissions in response to the SEF.  Schaefer submits that the non-disclosure of material facts in the SEF deprived it of the opportunity to comment upon matters which were material to the SEF on which the CEO proposed to base his recommendation.

Trade Measures Report (the Report)

14                                          A similar attack is made on the Trade Measures Report.  In particular, Schaefer contends that the primary findings of fact made in the Report do not, as a matter of law, support the finding made by the CEO that the dumping caused material injury.

15                                          Schaefer relies for this contention upon the provisions of ss 269TEA(1)(d) and 269TG(1) of the Act.  The effect of these provisions is that the CEO is to make recommendations which enable the Minister to reach a state of satisfaction as to whether there is a causal link between the export price and material injury to the Australian industry.

16                                          In the Trade Measures Report, Customs dealt with five tender contracts won by Schaefer for the supply of MGBs to local councils or their waste contractors.  Customs was satisfied that in each of the five tenders price was a “key factor” and “pivotal” to the outcome.

17                                          However, Schaefer contends that the primary findings of fact recorded in the Report do no more than establish that price was “relevant”, not causative.

18                                          Schaefer also contends that the CEO had evidence before him that factors other than the price of the goods influenced the decision of each of the five purchasers of the MGBs to award the contract to Schaefer.  The substance of Schaefer’s contention is that this evidence precluded the CEO from finding that price was the causative factor.

19                                          The determination of this question involves a consideration of site visit reports and other documents recording the results of interviews conducted by Customs with the purchasers.  Questions were asked at the interviews as to the factors which the purchasers took into account in awarding the contracts.

20                                          Senior counsel for Schaefer, Dr Flick SC, submits that a consideration of these documents gives rise to a variety of grounds of judicial review.  However, senior counsel for the respondents, Mr Gageler SC, submits that the questions which Schaefer seeks to agitate are in truth an attempt to obtain merits review.

Declaration

21                                          The attack on the decision of the Minister relies on an error of law having been made in relation to the SEF.  The applicant submits that a failure by the CEO to prepare a statement of essential facts in accordance with law would vitiate the declaration by the Minister applying s 8 of the Customs Tariff (Anti-Dumping) Act to the export of Malaysian MGBs.  Schaefer also contends that there was a denial of procedural fairness in not making the Report available to it until the day the Minister’s decision imposing dumping duties was published, particularly in circumstances where there were significant revisions to significant segments of the prior Customs investigative process.

ISSUES

22                                          The issues may be summarised as follows:

(1)               Whether, upon the proper construction and application of s 269TDAA of the Act, the SEF was required to contain a statement of all material facts known to Customs at the time of preparation.

(2)               Whether the CEO made an error of law, or asked himself the wrong question, by failing to consider whether the Minister ought to be satisfied of a causal link between the price of the goods and material injury to an Australian industry; see s 269 TEA(1)(d), s 269TG(1).

(3)               Whether the Trade Measures Report contravened s 269TEA(5) by failing to include a statement of the CEO’s reasons for his recommendation that set out the material findings of fact and particulars of the evidence relied on to support the findings.

(4)               Whether Schaefer was deprived of the statutory opportunity to respond to the SEF by reason of the non-disclosure of material facts known to the CEO.  These facts are said to be the statements by the purchasers of the MGBs of factors, other than price, which influenced their decisions.

(5)               Whether the CEO failed to conduct an investigation in accordance with Div 2 of Part XVB, by failing to make any further enquiry of the purchasers as to whether price was the causative factor.  Schaefer relies upon the principle stated by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 to enliven a duty to make further enquiries in the present case.

(6)               Whether the SEF or the Trade Measures Report was perverse or affected by Wednesbury unreasonableness in light of the factual material contained in the site visit reports.

(7)               In addition to (6), whether the SEF or the Trade Measures Report was affected by bias.

(8)               Whether the power of the Minister to make a declaration pursuant to s 269TG was vitiated by an error in the SEF placed on the public record, or an error in the Trade Measures Report provided to the Minister, or otherwise involved a denial of procedural fairness.

(9)               Whether, in any event, relief ought to be declined on discretionary grounds.  This issue arises because Schaefer has sought merits review of the Minister’s decision from the Trade Measures Review Officer in accordance with Div 9 of Part XVB.

PART XVB OF THE ACT

23                                          The provisions of Part XVB were fully explained in Pilkington at [29]-[75].  I will not repeat what was said but I will endeavour to summarise or set out the provisions salient to these proceedings.  Amendments made to the Act since 2002 are not material for present purposes.

24                                          Divisions 1, 2 and 3 of Part XVB deal with the preliminary and procedural matters leading to a decision by the Minister whether to publish a dumping duty notice; s 269SM(3).

25                                          An investigation about dumping may be initiated by an application lodged with Customs under s 269TB.

26                                          When an application is made for a dumping duty notice, the Minister must determine whether dumping has occurred by a comparison of export prices and normal values during the investigation period; s 269TACB(1).

27                                          The export price of goods is to be determined in accordance with s 269TAB.  If the transaction is at arms length the export price will be the FOB price.  Thus, if the contract is CIF an adjustment must be made to bring it back to FOB; s 269TAB(1)(a).

28                                          If the transaction is not at arms length, “prescribed deductions” are to be made from the price referred to in s 269TAB(1)(b).

29                                          The Act lays down tight time-frames within which the process prescribed in Divs 1 and 2 of Part XVB is to move forward; Pilkington at [43].

30                                          Within 20 days after Customs receives an application under s 269TB(1), the CEO must examine it and must reject it if not satisfied of the matters stated in s 269TC(1) and (2).

31                                          If the CEO decides not to reject an application within that period, he or she must give public notice of acceptance of the application; s 269TC(4).

32                                          The public notice required by s 269TC(4) is to set out detailed information including:

(a)        an indication that a report will be made to the Minister within 155 days of the commencement of the investigation; s 269TC(4)(bf);

(b)       an invitation to interested parties to lodge with the CEO, within no more than 40 days from the date of initiation of the investigation, submissions about the publication of a dumping duty notice; s 269TC(4)(c);

(c)        a statement that within 110 days after the initiation of the investigation, the CEO will place on the public record a statement of the essential facts on which the CEO proposes to make a recommendation to the Minister; s 269TC(4)(e); and

(d)       an invitation to interested parties to lodge with the CEO, within 20 days of the statement of essential facts being placed on the public record, submissions in response to the statement; s 269TC(4)f).

33                                          Before the report to the Minister is finalised, and indeed prior to the time provided for the preparation of the statement of essential facts, the CEO may make a preliminary affirmative determination that there are sufficient grounds for the publication of a dumping duty notice.  The preliminary affirmative determination may be made at any time from 60 days after the initiation of the investigation; s 269TD(1).

34                                          If the CEO makes a preliminary affirmative determination, Customs may require and take cash securities for interim duty; s 269TD(4).

35                                          The requirements of the statement of essential facts are contained in s 269TDAA.   In formulating it, the CEO must have regard to the application and any submissions received within 40 days from the initiation of the investigation; s 269TDAA(2)(a).  I will deal with this in further detail under Issue 1.

36                                          The CEO may also have regard to any other matters that he or she considers relevant; s 269TDAA(2)(b).

37                                          In making a recommendation or decision to determine whether to issue a dumping notice, the CEO must determine the matter:

(a)        in like manner as if he or she were the Minister; and

(b)       having regard to the same considerations to which the Minister must have regard; s 269TE(2).

38                                          The provisions governing the issue of the CEO’s report to the Minister, recommending whether or not to publish a dumping notice are contained in s 269TEA.  I will set out the relevant parts of that section as follows:

Section 269TEA Report to Minister concerning publication of notice under this Part

(1)       If:

(a)     application has been made under section 269TB for publication of a dumping duty notice or a countervailing duty notice; and

(b)     the CEO has initiated an investigation in respect of the application under section 269TC;

the CEO must, after holding such an investigation and before the end of the period for reporting to the Minister that is referred to in paragraph 269TC(4)(bf), give the Minister a report in respect of the goods the subject of the application that:

(c)     recommends whether any such notice should be published and the extent of any duties that are, or should be, payable under the Dumping Duty Act because of that notice; and

(d)     recommends, in particular, whether the Minister ought to be satisfied as to the matters in respect of which the Minister is required to be satisfied before such a notice can be published; and

(e)     recommends, where applicable, whether the Minister ought to give notice to the exporter under subsection 269TG(3D) or to the government of the country of export or to the exporter under subsection 269TJ(2A).

(2)       The CEO’s report must, to the extent that it is practicable to do so, also extend to any like goods not covered by the application but imported into Australia during the period starting on the date of initiation of the investigation and ending 20 days after the statement of essential facts in respect of the investigation is placed on the public record. 

(3)       Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the CEO’s report in relation to an application under section 269TB for publication of a dumping duty notice or a countervailing duty notice, the CEO:

(a)     must have regard to:

(i)      the application; and

(ii)     any submission concerning the publication of that notice to which the CEO has had regard for the purpose of formulating the statement of essential facts; and

(iii)    the statement of essential facts; and

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

b)      may have regard to any other matters that the CEO considers to be relevant.

[…]

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

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

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

39                                          The Minister must, relevantly, be satisfied of two things before deciding to publish a dumping notice.  These are that:

(a)               the amount of the export price of the goods is less than the amount of the normal value; and

(b)               because of that, material injury to an Australian industry producing like goods is being caused or is threatened; s 269TG(1).

40                                          In determining for the purposes of s 269TG whether material injury to an Australian industry has been caused or is threatened, the Minister may have regard to a detailed list of factors; s 269TAE(1).

41                                          In making a determination on the question of material injury, the Minister must consider whether injury is being caused or threatened by a factor other than the exportation of the goods.  A list of examples is set out; s 269TAE(2A).  They include factors such as developments in technology; s 269TAE(2A)(e).

42                                          Section 269ZJ of the Act gives effect to Australia’s obligations under agreements negotiated in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT).  The agreements provided for a formalisation and expansion of the public file system to give interested parties an opportunity to comment on information available to investigating authorities; Pilkington at [22].  Section 269ZJ provides, relevantly:

Section 269ZJ CEO to maintain public record for certain purposes

(1)       The CEO must, in relation to each application received under section 269TB that leads to an investigation, each application or request under section 269ZA that leads to a review and each application under section 269ZHB that leads to an inquiry:

(a)     maintain a public record of the investigation, review or inquiry conducted for the purposes of the application or request, containing, subject to subsection (2), a copy of all submissions from interested parties, the statement of essential facts compiled in respect of that investigation, review or inquiry, and a copy of all relevant correspondence between the CEO and other persons; and

(b)     draw the attention of all interested parties to the existence of the public record, and to their entitlement to inspect that record; and

(c)     at the request of an interested party, make the record available to that party for inspection.

(2)       To the extent that information given to the CEO by a person is claimed to be confidential or to be information whose publication would adversely affect a person’s business or commercial interests, the person  giving that information must ensure that a summary of that information:

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

(b)     that does not breach that confidentiality or adversely affect those interests;

is given to the CEO for inclusion in the public record.   

(3)       A person is not required to give the CEO a summary of information under subsection (2) for inclusion in the public record if the person satisfies the CEO that there is no way such a summary can be given to allow a reasonable understanding of the substance of the information.

(4)       If oral information is given to the CEO by a person, the CEO must not take that information into account unless it is subsequently put in writing by the person or by the CEO and thereby becomes available, subject to considerations of confidentiality and to the need to protect business and commercial interests,  as a part of the public record.  

[…]

The proper approach to construction of Part XVB of the Act

43                                          The purpose, background and proper approach to construction of Part XVB were explained in Pilkington at [19]-[28].  I will summarise the essential points.

44                                          Part XVB reflects, in substance, amendments to the Act made by legislation passed in 1994 and 1998.  I will not repeat the titles of those enactments; Pilkington at [22].

45                                          The provisions of the implementation agreement negotiated in the Uruguay Round of the GATT were summarised in Pilkington at [22].  Article VI of that Agreement appears to be the genesis of s 269ZJ of the Act.  It provides, inter alia, that, subject to the requirement to protect confidential information, evidence presented in writing by an interested party should be made available promptly to other interested parties.

46                                          Article VI also provides that oral information is to be taken into account by the authorities only insofar as it is subsequently reproduced in writing and made available to other interested parties.

47                                          The Second Reading Speech of the Bill, which became the 1998 Act, included a statement set out in Pilkington at [23].  This was that, “throughout an investigation all interested parties must have a full opportunity to see all relevant information, to acquaint themselves with opposing views and to offer rebuttal arguments”.

48                                          The provisions of Part XVB are to be interpreted and applied, as far as the language permits, in accordance with Australia’s international obligations; Pilkington at [25].

49                                          A broad approach to construction is to be adopted; Pilkington at [26]-[27].

BACKGROUND FACTS

50                                          Over a period of about 15 months ending in July 2005, Schaefer won five large Australian contracts for the supply of MGBs.  These were with local councils or their contractors as follows:

·                    Ku-ring-gai – Collex Pty Limited

·                    Canterbury City Council

·                    Bega Valley – Watts Waste

·                    Eurobodalla – Staples Waste Removals Pty Limited

·                    Coffs Coast –  SMS Municipal Services Pty Limited (which uses Handybin Waste Services (Coffs Harbour) Pty Limited, a related company, to supply waste services)

51                                          On 23 September 2005 Nylex Limited and Sulo MGB Australia Pty Limited lodged an application under s 269TB(1) of the Act requesting the Minister to publish a dumping notice.

52                                          On 31 October 2005 a delegate of the CEO gave public notice under s 269TC(4), of the initiation of an investigation into the alleged dumping of 120 litre and 240 litre MGBs from Malaysia. 

53                                          The investigation period stated in the notice was 1 October 2004 to 30 September 2005.  The period of examination of the Australian market was from 1 July 2002 onwards. 

54                                          A questionnaire and a non-confidential version of the application were distributed by Customs to the known exporters and Australian importers of the goods.  This was apparently done on or about 31 October 2005.

55                                          During the investigation period, Customs undertook site visits to relevant participants in the industry.  These included Nylex and Sulo, Schaefer, Schaefer Systems International Pte Ltd, the Singaporean exporter, Schaefer Systems International Pty Ltd, the Australian-based importer, Canterbury City Council and the waste contractors for three of the other four councils, ie Watts, Staples and SMS.

56                                          The remaining contractor, Collex, provided written submissions.  So too did the Ministry of International Trade and Industry for Malaysia.

57                                          Site visits were also undertaken to two other members of the Australian industry, One Stop Garbage Shop Pty Limited and Waste & Recycling Supplies (SA) Pty Limited.  The latter company is referred to as WRS. 

58                                          For each site visit, Customs prepared handwritten file notes which were then reduced to two separate reports, one confidential and the other non-confidential.  Before the reports were finalised the party visited was provided with a draft and had an opportunity to comment.  The non-confidential reports were placed on the public file.

59                                          The CEO had regard to the information obtained on the site visits, exporter questionnaires and to the written submissions in preparing the SEF.  The written submissions included a 150 page submission provided by Schaefer. 

60                                          The CEO placed the SEF on the public file on 20 February 2006.

61                                          Schaefer took the opportunity provided by the Act to comment on the SEF.  It provided confidential written submissions on 13 March 2006 and a non-confidential version on 22 March 2006.

62                                          The CEO submitted the Trade Measures Report to the Minister on 4 April 2006.

63                                          By public notice dated 25 May 2006, published on 5 June 2006, the Minister declared under s 269TG of the Act that the provisions of s 8 of the Customs Tariff (Anti Dumping) Act apply to MGBs from Malaysia after the date of the notice. 

64                                          On 5 July 2006, Schaefer applied to the Trade Measures Review Officer (TMRO) for a review of the decision of the Minister.    The application sought full merits review.  The TMRO was required to complete the review by 4 September 2006; see s 269ZZK(3).  I have not been informed of the results of the review.

THE SEF AND THE TRADE MEASURES REPORT

65                                          Except insofar as the Trade Measures Report deals with submissions relating to the SEF and forms conclusions, the Report is substantially the same as the SEF. 

66                                          I will refer to the relevant parts of both documents, pointing out where necessary whether the material appeared only in the Trade Measures Report.

67                                          The goods under consideration were 120 litre and 240 litre MGBs, including those that met European Standard EN840. 

68                                          The Australian industry producing MGBs comprises Nylex, Sulo, WRS and One Stop Garbage Shop.  WRS advised Customs that it did not support the application.

69                                          Both the SEF and the Report refer to the similarities between MGBs manufactured by all participants.  They go on to say:

Notwithstanding the broad design similarities, MGB manufacturers distinguish their product from competitors on finer design points.  For example, MGBs manufactured in Malaysia are designed so that the lid is affixed to the bin body by way of four hinge pins that the manufacturer advises should be stapled into place upon assembly.  The Malaysian manufacturer claims that this design limits problems with lids detaching from the body when compared to the two hinge pin system used by the Australian manufacturers.

70                                          There is no Australian standard for MGBs.  Customs found that parties seeking to purchase MGBs often specify that they should comply with the European EN840 standard.

71                                          MGBs of the 120 litre and 240 litre size comprise approximately 80% of the Australian market.

72                                          The Australian market is divided into three segments, one of which is the tender market that involves the supply of new or replacement MGBs to households within a local council.  The claims made by Nylex and Sulo arose from the supply of MGBs under the five contracts awarded in this segment of the market.

73                                          In recent years the Australian market has been dominated by Nylex and Sulo.  WRS has recently emerged as a significant competitor. 

74                                          Customs describes the Australian market as a “commodity market” which is price sensitive.  Although all manufacturers regard their product as superior due to unique features, Customs’ view was:

… that the goods are best described as commodities and that the particular product features could be a determining factor in winning a tender but only within a very narrow price band.

75                                          The five tenders won by Schaefer are set out in a table which included the following information:

76                                          I note that the number of MGBs supplied for Coffs Coast comprise slightly in excess of 50% of the total number of units in the five contracts.

77                                          Customs’ estimates of the total volume of MGBs supplied through tenders awarded in the relevant year are also set out.  The figures in the Trade Measures Report differ from those in the SEF.  The total in the Report is 900,000 to 1 million units, but these include MGBs other than the 120 litre and 240 litre size.

78                                          In the Report (but not in the SEF) Customs estimates that the contracts awarded to Schaefer in the investigation period represented 8% of the total market.

79                                          Pages 30 to 31 of the Trade Measures Report are particularly important.  They are in the same terms as pages 26 to 28 of the SEF.  Customs there set out details of the five contracts and a summary of salient information supplied by the council or the contractor as to the factors taken into account in the decision to award the tender to Schaefer.

80                                          The following appears under the heading “Ku-ring-gai – Collex Pty Ltd”:

Collex Pty Ltd (Collex) advised Customs that price was important in its purchasing decision but that a range of other factors such as quality, reliability and warranty terms were also relevant.  Collex stated that it considered Australian made and the Malaysian MGBs to be good quality products.

[…]

Collex stated that it considered that the four hinge pin configuration of the Malaysian MGBs was better than others offered.  Collex also said that it had been happy with the sales support provided by SSI Australia.

SSI Australia’s price offered to Collex for 240 litre MGBs for the Ku-ring-gai shire was lower than the price offered by members of the Australian industry.

81                                          Canterbury City Council supplied Customs with a copy of its selection criteria and the weighting placed on each criterion.  The following is then set out:

Price was the most important factor.  Council officers explained that their recommendation to Council on the selection of the MGBs was straightforward.  The Malaysian MGBs were preferred in terms of certain physical qualities and were also the lowest priced of the conforming bids by a significant margin.  As the Malaysian MGB was clearly preferred on the basis of price and features, Council officers did not undertake a formal assessment of the bids against the selection criteria.

82                                          As to Bega Valley Council, the SEF and the Report state:

Of the quotes received by Watts Waste within the required timeframe, the price offered by SSI Australia for 240 litre MGBs manufactured in Malaysia was the lowest.  Watts Waste decided to purchase the Malaysian made 240 litre MGBs.  Watts Waste described to Customs the factors, including price, that were important to it in selecting a supplier but requested that the discussion be treated as commercially confidential.

83                                          The following is included under the heading “Eurobodalla – Staples Waste”:

Staples Waste decided to purchase the Malaysian manufactured 240 litre MGBs and Australian made 80 litre MGBs.  Staples Waste advised that, while the Malaysian MGBs had been the cheaper option, it preferred the imported MGBs for other reasons.  Staples Waste stated that it regarded the Malaysian MGB as heavier and therefore sturdier that some of the Australian MGBs and preferred the four hinge pin design of the Malaysian 240 litre MGB.  Staples Waste advised that it would have been prepared to pay more than it did for the Malaysian MGB because of these factors and a previous positive experience with the Malaysian MGBs.

84                                          The SEF includes the following in relation to Coffs Coast:

Customs visited Handybin to discuss the decision to purchase the Malaysian MGBs.  Handybin advised that it received quotes from two Australian industry members and SSI Australia (offering Malaysian MGBs) within the required period.  Handybin stated that factors other than price were relevant to its selection of MGB supplier including quality and back-up.  Handybin expressed a preference for the Malaysian four hinge pin design.  It stated that Australian MGBs can have problems with axle housing reinforcement.  Handybin supplied Customs with details of quotes received from the prospective suppliers.

SSI Singapore submitted that SSI Australia had won the Coffs Coast tender because it was the only EN840 certified supplier that quoted.

85                                          The Trade Measures Report then adds the following:

In its response to the SEF, Handybin stated that meeting the EN840 standard was a crucial factor in the selection of Schaefer MGBs for the Coffs Coast contract.  This issue is discussed below under responses to the SEF.  

86                                          In both the Report and the SEF, it is said that Customs found that in four of the five contracts, Schaefer’s price undercut the lowest price offered by the Australian industry.  Details of the Customs’ analysis of price undercutting are set out in a table in confidential appendix 5 to the Report.  This table is not included in the SEF.  I will refer to this later. 

87                                          Both the Report and the SEF state that Customs examined movements in the average selling price of Nylex and Sulo 120 litre and 240 litre MGBs.  A graph shows price depression in the relevant period. 

88                                          The Report and the SEF also state that Customs found that Nylex and Sulo suffered price suppression in that period.  The Report makes it clear that price suppression was suffered in respect of 120 litre, 240 litre and all MGBs sizes combined.

89                                          The Report and the SEF state that Nylex and Sulo suffered a significant decline in profit in 2004/2005. 

90                                          Both documents state that Customs found that the Australian industry suffered volume injury through lost sales/tenders and loss of market share in the period examined.

91                                          The following is recorded in the Trade Measures Report, but not the SEF, in relation to the significance of the EN840 Standard as a factor in the selection of Schaefer for the Coffs Coast area:

Schaefer strongly disagreed with Customs’ understanding expressed in the SEF that EN840 certification was not a factor in the selection of Malaysian MGBs for the Coffs Coast tender.  Schaefer stated that Customs’ comment insinuated that tender requirements can be freely ignored and (this statement) should be justified or withdrawn.

In its response to the SEF, the purchaser of MGBs for the Coffs Coast contract, Handybin, stated that prior to being awarded the Coffs Coast contract it had received three offers for the supply of MGBs.  Handybin stated that, of the three offers, only Schaefer’s MGBs met the EN840 standard.  In its SEF response Hanydbin [sic] stated that EN840 was a crucial factor in the selection of Schaefer MGBs for the Coffs Coast councils. 

92                                          Customs’ response to Schaefer’s comments on the SEF is stated in the Trade Measures Report as follows:

On 7 December 2005, Customs visited Handybin to discuss issues related to its decision to purchase Malaysian MGBs for the Coffs Coast contract.  The Customs officers present made notes of matters discussed and prepared a report, a draft of which was forwarded to Handybin for comment.  None of the officers’ notes reflected any discussion in relation to the EN840 standard and the report is similarly absent of any reference.  Handybin examined the draft report and suggested some corrections but made no comment about the absence of a reference to the EN840 standard.

The visit report records Handybin’s comments on the pros and cons of the Australian suppliers offering to supply MGBs for the Coffs Coast contract and details of Handybins decision to purchase Schaefer MGBs.  The tenor of the discussion did not suggest to Customs that Australian manufactured products were not considered due to the EN840 specification requirement.

Despite the claims of Schaefer and Handybin in response to the SEF, Customs is not satisfied that the EN840 specification was a determining factor in the selection of MGBs for the Coffs Coast contract.

93                                          In the SEF and the Report, Customs states that two Malaysian suppliers had exported MGBs to Australia at dumped prices during the investigation period.  In the Report the dumping margin is stated at 6.21%. 

94                                          Both the SEF and the Trade Measures Report state that the Australian industry had lost the sale of 213,000 units.  The Report states that this is significant in terms of the total market and the tender market over the relevant period. 

95                                          The SEF and the Report also state that the Malaysian exports resulted in price depression of 120 litre MGBs by approximately 8% and that price depression in 240 litre MGBs had a flow on effect to the price of all other MGBs.

96                                          The SEF and the Report go on to consider whether injury to Australian industry was caused, or threatened, by a factor other than dumped imports.  This is required by s 269TAE(2A) of the Act. 

97                                          The following is stated under the heading “Quality and Service”:

For some end users, the Malaysian MGBs were considered to be of higher quality than the Australian MGBs, due to

·                    a heavier form (thicker walls);

·                    only virgin material (no recycled) content; and

·                    a better lid design, with four attachment points, four hinge pins and staples in the hinge pins.

Purchasers of the Malaysian MGBs also made favourable comments about the sales effort and service provided by SSI Australia.

Customs acknowledges that perceptions about quality and sales service were relevant in the purchasing decisions in each of the tenders won by Malaysian MGBs.  However, it is clear to Customs that price was a key factor in the purchase of MGBs.  Customs is satisfied that, had the Malaysian MGBs been offered at undumped prices, the Australian industry members would have been considerably more competitive in the tenders and, in Customs’ view, likely to have been more successful in the tenders.

98                                          The Trade Measures Report contains a section headed “Customer purchasing preferences”.  It sets out claims made by Schaefer in response to the SEF. 

99                                          The first claim recorded is that most customers referred to unique features which made Schaefer MGBs superior.  Reference is made to the Canterbury tender and Staples Waste’s statements in relation to Eurobodalla and to what was recorded on the public file. 

100                                       The Report goes on to record Customs’ comment in response to Schaefer’s claims as follows:

Customs recognises that price is only one criterion in a range of factors in the mind of a prospective MGB customer, that can also include quality, durability, reliability and warranty terms.  Customs also acknowledges that this range of factors may vary, and be given a different weighting, depending on the prospective MGB customer.

Customs acknowledges that Schaefer’s customers highlight Schaefer’s quality (durability and sturdiness) and features (such as being made of only virgin material with no recycled content, and having a better lid design with four hinge pins) as being considerations in the purchase of its MGBs.

Customs appreciates that while Schaefer MGBs are made of only virgin material with no recycled content and have a four hinge pin lid design, these features are not to be classed as developments in technology.

Customs maintains its view that price was a key factor in the award of the five tenders during 2004/05.  In the case of the Canterbury Council contract, while Customs cannot for confidentiality reasons reveal the margin of difference between Schaefer and the lowest competing tender that was considered by the Canterbury Council, Customs notes that the margin of difference was not insignificant. 

101                                       The Trade Measures Report sets out its conclusions in terms which contain no substantive alteration to those in the SEF.

102                                       The relevant portions of the conclusions are as follows:

When payment terms and free lid assembly service that, in some instances, accompanied the Malaysian MGBs are factored in, the pricing of the Malaysian MGBs undercut the Australian industry in all of the five tenders.  […]

In each of the tenders won by the Malaysian MGBs, Customs is satisfied that price was a key factor and that the dumping was pivotal to the outcome of the tenders.  The five tenders won by the Malaysian MGBs represented a significant loss of market share to the Australian industry, particularly in the tender market sector.

Aside from the volume and market share injury suffered by the Australian industry, Customs is of the view that the success of the Malaysian MGBs at dumped prices had a price effect on the Australian industry.  Customs observed that tender pricing was significantly higher prior to the entry into the market of the dumped Malaysian exports even though raw material costs increased significantly over the period.

[…]

Also, Customs did not find that the Australian market perceived the Malaysian MGBs as being sufficiently superior to the Australian product that it could be said that the dumping was irrelevant to the impact of the Malaysian MGBs on industry.

[…]

Customs considers that the injury suffered as a result of lost volume in relation to the five tender contracts can be considered the result of dumping and in itself not immaterial.

In addition the negative flow on effect on price due to the price undercutting necessary to win the contracts, the reduction in profit margins (due to decreasing prices and increasing costs which can not [sic] be recouped) and the reduction in capacity utilisation (which increased the unit costs and reduced the return on investment), there is also the indirect impact on other sized MGBs.  In particular the 120 litre MGBs, as their sales prices decrease as manufacturers compete more aggressively to win new sales to replace the lost tender volumes, and customers expectations of comparative price decreases.

Customs therefore concludes that dumped imports of MGBs from Malaysia have caused material injury to the Australian industry producing like goods.  Customs considers that its analysis of other possible causes of injury shows nothing to detract from this finding.

103                                       Customs’ analysis of price undercutting is, as I have said, contained in confidential appendix 5 to the Report.  I will endeavour to state the substance of the appendix without breaking confidentiality.

104                                       The table shows that Schaefer’s price was the lowest tendered price for Canterbury, Bega, Eurobodalla and Ku-ring-gai.  It was the not the lowest tenderer for Coffs on the price stated in the table.  However, that price (ie for Coffs) is the price contained in the contract for payment within 30 days.  For payment after that period, a higher price was stipulated in the contract.

105                                       The table sets out Schaefer’s actual payment terms, that is, the number of days credit actually extended by Schaefer.  These were greater than the industry average terms stated in contracts and were greater than those stipulated in Schaefer’s own contracts.

106                                       Customs then took into account in its analysis the fact that Schaefer actually extended credit terms for periods substantially beyond those stipulated in the contract.  This was assumed to represent a saving to customers which was factored into the calculation of whether Schaefer’s price was the lowest.

107                                       After this exercise was carried out Schaefer’s price was shown as the lowest for each of the five tenders, including Coffs for which it was shown earlier in the table as not being the lowest tenderer.

Canterbury Council

108                                       I will set out below the relevant portions of the material recorded in relation to the site visit to the Canterbury City Council.  Where there is a document on the confidential file, I will refer to it in an appropriate way.  I will take the same approach for the other councils.

109                                       The site visit report on the public file states that:

The Council advised that though they had selection criteria weighting for the assessment of each tender the superior quality and characteristics of the Schaefer MGB and lesser price resulted in the scores for each criteria not being recorded.   

[…]

The comments in the table considered the Schaefer MGB an overall stronger MGB and the preferred tenderer for price, MGB quality and ability to satisfy tender specification.  The total price for the Schaefer MGB was $1,179,200.

110                                       The public file document refers to a list of confidential attachments.  One of them is selection criteria weighting for the tender. 

111                                       The weighting is written against the criteria in handwriting.  Price criterion is weighted as the highest of any factor and double the weighting of the next most important factor.  The evidence does not demonstrate who placed the handwriting on the document but it would appear to have been done by a Council officer.

112                                       The evidence before me also includes a confidential site visit report on Customs’ attendance at WRS.  The report refers to WRS’ observations about the relevance of price, namely that price is a major issue in choosing an MGB, and that price sensitivity falls within a narrow band. 

113                                       Schaefer’s confidential response to the SEF shows that it had regard to the public file in relation to the Canterbury site visit and that it was in a position to make meaningful submissions on it. 

Ku-ring-gai Council

114                                       There was no site visit to Collex but Customs put a number of questions to the company by email.  The questions and answers were apparently not placed on the public file.

115                                       Question 4, and the answer to it in an email from Collex to Customs dated 8 February 2006 was as follows:

Was there a formal rating process for the quotes?  If so, can you please supply any documents related to the selection process?  A physical trial of the 340/360 litre bins occurred at the Council depot with the Council Waste Manager in attendance.  Each bin was half filled with water and then lifted on a number of occasions to determine the most suitable bin.  It was agreed that the Schaefer bin from the US was the most compatible with the grabs on the sideloader.  Both Sulo and Schaefer 240 litre bins are deemed to be good quality products and both comply with the European Standard DIN EN840.

116                                       Question 5 was an important question but the answer to it refers in large part to the reliability of the 340 and 360 litre MGBs which were not the subject of the investigation.  Nevertheless, I will set out the whole of Question 5 and the answer to it as contained in the email, as follows:

What were the factors in choosing a supplier for the MGBs, eg price, quality, reliability, warranty, single supplier?  How important was each factor?  All the factors mentionned [sic].  Price is important, but the reliability of the 340/360 litre bin was the most important factor as the price unit is so high that a wrong selection would be financiallly [sic] disastrous in repair and replacement cost.  This was the determining factor with then the ability to negotiate a package deal.

117                                       Question 9 asks whether Collex considered that the MGBs supplied by Nylex, Sulo, Schaefer and the other participants in the market were like each other in their functionality and quality.  Collex replied that all 240 litre MGBs were comparable but that the 340/360 litre MGBs varied in quality and suitability. 

118                                       In an email dated 15 February 2006, Collex supplemented its answer to Question 9.  It stated that the handle configuration of the Schaefer 240 litre MGB was considered to be a better design at the time. 

Bega Council

119                                       Almost all of the informative material on pricing was deleted from the version of the site visit report placed on the public file.

120                                       The relevant part of the public file is as follows:

4.1              Price

Watts said that there was XXXX.

Watts provided the following details on the unit prices offered for 240L    MGBs.

Schaefer                      Nylex                                      Sulo

XXXX                          XXXX                                      XXXX

Watts advised that the pricing was GST exclusive, delivered unassembled into the Watts depot in Bega, payment terms were 30 days after delivery, about 200 hinge pins and lids were provided as spares.  A contractor assembled the MGBs at the depot and delivered them to the households for the Bega service.

Watts said that the Bega tender had seemed XXXX.

Watts also said that Wasterecycling had tendered for the MGBs XXXX.

121                                       I do not consider that it breaches the confidentiality to disclose that the confidential site visit report refers to the negotiation process which took place.  It also sets out and refers to the price differential between the prices offered by Schaefer, Nylex and Sulo.

122                                       The confidential site visit report also states that Watts said it had no quality issues for any of the different brands of the MGBs.

123                                       In addition to the site visit report, Schaefer put into evidence a written record of a conversation between an officer of Watts Waste and an officer of Customs.  The document is dated 18 November 2005.  It is marked “commercial-in-confidence” and does not seem to have been placed on the public file.

124                                       The comments made by the officer of Watts Waste about price are confidential.  The balance of the site visit report would not appear to be confidential.  It is apparent from the non-confidential part of the record of the conversation that the officer of Watts Waste considered that the company chose Schaefer because it was “more professional in its dealings”.

Eurobodalla Council

125                                       The relevant portion of the site visit report on the public file is identical to that contained in the confidential file, save for a confidential attachment setting out a copy of the quotes from Schaefer and Sulo.

126                                       I will set out the relevant portions of the material on the public file as follows:

4.2       Decision in choosing a MGB supplier

Staples said that it had previously purchased Schaefer MGBs (for the Moss Vale Council about five years ago).  Staples believes that the Schaefer MGBs are of better quality than the Australian MGBs, the Schaefer MGBs are made to the old German standard (RAL – RG723/2) and are a heavier MGB. Staples also said that the decision to purchase the Schaefer 240L MGBs for the Shire service was mainly based on the design of the lid of the MGB.

[…]

Staples advised that it has used the Sulo bins before and has had trouble with them, as the lid for the Sulo MGBs:

·                    is a lighter lid than the Schaefer MGB lid,

·                    is attached in only two places to the body of the MGB,

·                    has only two hinge pins: [sic] and

·                    the hinge pins are not stapled in place and have a tendency to work loose.

Staples said that the lids were one of the biggest cost items for the maintenance of the MGBs.  ….

[…]

Staples stated that it felt that the Nylex MGB was a better product than the Sulo MGB as it is a heavier MGB, however the Nylex MGBs still have problems in that they have a similar lid design to Sulo in having only two hinge pins (not stapled) and are attached to the body at only two points.  …

Staples said that the Schaefer MGBs were made using all virgin raw material which they believed made it a stronger MGB than the Australian MGBs as they were manufactured from a mixture of recycled and virgin materials.

[…]

Staples advised that price was not a major factor as the Schaefer MGB had been only around $2.00 less per unit than the Australian MGB.  Staples said it would have been prepared to pay more for the Schaefer MGB and explained that a pricing differential of $2.00 per MGB was minimal when this was assessed over the life of the MGB and the value of the waste services contract.

[…]

4.3       MGB purchase terms and assembly

… Schaefer also offered more flexible payment terms in that the Shire waste service had involved a ten week assembly and distribution period and Schaefer had carried the cost of the bins until Staples had received its first payment from the Council for the collection services.  Staples said that the payment terms offered by the Australian industry were not as flexible.

Staples also said that Schaefer had offered an assembly and distribution service that included fitting electronic chips in the MGBs for tracking purposes, Staples advised that it was charged for this service.  Staples said that the Schaefer MGBs came with the lids attached to the body whereas the Sulo MGBs had to have the lids fitted by the purchaser.

Coffs Harbour

127                                       The redacted version of the site visit report on the public file contains the following relevant information:

4.1       Considerations in choosing a supplier.

SMS said that it considers buying MGBs on factors other than price alone.

SMS said that in most cases the waste contractors are responsible for the maintenance of the MGBs and that due to past failures with MGBs they are now more focused on the quality and the standard that the MGB is produced to.

SMS advised that the supply, service and back-up support offered is also a consideration.

128                                       The confidential site visit report contains illuminating observations made by SMS as to why Schaefer was preferred to Nylex and Sulo.  These observations were directed to quality, support and service issues.  There is a handwritten note to the same effect.  It includes observations made by the contractor about the quality of the Schaefer bin, ie that quality was the main issue because of the cost to the council of repairing broken lids and, in particular, to SMS’s unwillingness to deal with Sulo.  There are also observations about the contractor’s concerns in relation to Nylex.

129                                       Sulo asserted that it was the only Australian manufacturer of 240 litre MGBs certified to standard EN840.  However, there was evidence before Customs that all the MGBs, whether manufactured in Australia or Malaysia, were produced in accordance with that standard. 

ISSUE 1 – The requirements of the SEF

130                                       Dr Flick, for Schaefer, submitted that the SEF must state all of the facts which are necessary for the Minister to be adequately informed as to whether to publish a dumping duty notice.  The effect of his submission is that a failure to do so would deprive an interested party of the opportunity to comment upon critical facts upon which a decision would be likely to turn.

131                                       Thus, Dr Flick went on to submit that the SEF is defective, as a matter of law, because it failed to state facts known to Customs as a result of interviews with, or enquiries of, the five councils or their contractors.

132                                       However, in my opinion, this submission must be rejected, even if material facts were not stated in the SEF, because the approach urged upon me by Dr Flick is based upon an incorrect construction of s 269TDAA of the Act.  It is also contrary to the procedural scheme created by Part XVB of the Act.

133                                       Two things underlie the legislative scheme.  The first is a high level of transparency, with opportunities for interested parties to comment and tender evidence at each relevant stage of the process; see Pilkington at [56].  The second is the formalisation and expansion of the public file system which was intended to make available to interested parties the material which would enable them to defend their interests; see Pilkington at [22]-[23].

134                                       These objectives are reflected in particular in ss 269TC(4), 269TDAA(2), 269TEA(3) and 269ZJ(1)-(4).

135                                       Moreover, s 269TDAA(1) makes it plain that the statement of essential facts is not a report to the Minister upon which the Minister is to make his or her decision.  Rather, it is a document which the CEO must place on the public record for the benefit of interested parties.

136                                       Section 269TDAA(1) states in clear terms that the document is to contain a statement of the facts on which the CEO proposes to base his or her recommendation.  The recommendation is that which is called for in the report to the Minister required by s 269TEA; see in particular s 269TEA(1)(c), (d) and (e).

137                                       The report to the Minister under s 269TEA is the next stage in Custom’s process after the publication by the CEO of the statement of essential facts.  But it is clear that the statement of essential facts is only a provisional document, even though the CEO must have regard to it under s 269TEA(3)(a)(iii).  It is provisional because, in deciding on the recommendation to be made to the Minister, the CEO must also have regard to any submissions received by Customs within the twenty day time period referred to in s 269TEA(3)(a)(iv).

138                                       The opportunity to comment upon the statement of essential facts with the benefit of access to the public file provides a statutory opportunity for an interested party to address omissions of any material facts in the statement.  Subject to what I say under Issue 4, this answers Dr Flick’s submission that a failure to state all material facts in the SEF would constitute a denial of procedural fairness.

139                                       Dr Flick sought to overcome this difficulty by referring to the decision of Burchett J in GTE (Aust) Pty Ltd v Brown (“Brown’s case”) (1986) 14 FCR 309 at 337.  He submitted that this was authority for the proposition that a statement of essential facts which omitted material facts known to the CEO must create a materially inaccurate impression to the Minister which was reviewable under ss 5(2)(a) and 5(2)(g) of the ADJR Act.

140                                       However, Brown’s case was decided under a different statutory scheme to that which is now applicable.  The observations to which Dr Flick pointed have no application to the provisions of s 269TDAA in their present form.

141                                       To the extent that Dr Flick’s submissions rested upon the proposition that the CEO is required to expose his or her reasoning in advance of the provision of the report to the Minister under s 269TEA, this would be contrary to well-established authority; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592.  See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212. 

ISSUE 2 – Satisfaction of causal link

142                                       One of Schaefer’s principal grounds of complaint was that the primary findings of fact in the Trade Measures Report could not, as a matter of law, support the finding that the price of the goods caused material injury to an Australian industry; see ss 269TEA(1)(d) and 269TG(1). 

143                                       The substance of this ground is that it was not open to the CEO to find that price was causative.  This was because in each of the tenders the effect of what was said was that price was relevant but that other factors, in particular quality, were also important. 

144                                       The gravamen of this ground is that that the CEO asked himself the wrong question, either by applying the wrong legal test of causation or by failing to distinguish between the price effect of the successful tenders and the other non-price factors.

145                                       Schaefer went on to contend that the substance of what the councils told Customs about causation was that price was merely relevant and that quality was often the determining factor.  Thus, Schaefer submitted that the finding of causation is so much against the weight of evidence as to be irrational, unreasonable or perverse.  I will deal with that ground separately under Issue 6.  I will deal with the question of whether there was material non-disclosure under Issue 4.

146                                       The subject matter of the enquiry which the CEO/Minister must make under s 269TAE(1), read with s 269TG(1), is material injury to an Australian industry that is causally connected to, “by reason of” or “because of”, dumping; see ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 571.

147                                       The test for causation of material injury was said by Lockhart J in Swan Portland Cement Ltd v Minister for Small Business and Customs (1991) 28 FCR 135 at 144 to be “essentially a practical exercise”.  His Honour said that its purpose is to achieve the objective of determining whether, viewed as a whole, the relevant Australian industry is suffering material injury from the dumping.

148                                       This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48.  It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs (“N.V. Beaulieu Real”) [2002] FCA 467 at [50]; affirmed on appeal [2002] FCAFC 339.

149                                       Moreover, the authorities referred to in the previous paragraphs establish that the determination is one of fact and degree; see eg Mullins at [20], Swan at 145.

150                                       In determining whether the CEO applied these principles it is necessary to return to the detail of the Trade Measures Report.

151                                       In Chapter 7 of the Report the CEO considers the Australian market for MGBs.  He arrives to the view that MGBs are a commodity and that while product factors could be decisive in the outcome of a tender, this is only within a very narrow price band.  This is an important finding which informed the exercise of practical judgment on the issue of causation.

152                                       In Chapter 8, the CEO found that the export price of Schaefer’s MGBs was less than the normal price and that the dumping margin was 6.21%.

153                                       The CEO goes on in Chapter 9 to consider the claims made by Nylex and Sulo.  Significantly, in the introduction to Chapter 9, the CEO states that for the Minister to impose dumping duties he must be satisfied that dumping is causing material injury to an Australian industry.

154                                       This statement, and others in similar terms, suggest that the CEO did indeed address the correct question.

155                                       Chapter 9 is an important part of the Report because it contains the details of the five contracts and a summary of the salient information about the factors taken into account in awarding the tenders to Schaefer.  I set out those observations at [80]-[85] above.

156                                       It is true that in recording its observations and preliminary findings about those contracts, price was said to be the most important factor only in relation to the Canterbury Council.  In all the others, price was said to be important or relevant but other factors were also said to be important.

157                                       However, I do not think it is a question of parsing and analysing these passages to criticise what may be thought to be contestable fact finding.  Subject to any questions of unreasonableness or perversity, it was a matter for the CEO as to what weight he was to give to the various considerations to be taken into account; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41-42.

158                                       The findings in Chapters 7, 8 and 9 of the Trade Measures Report pave the way for a consideration of the question of causation which is dealt with in Chapter 10.  That chapter opens by stating that it considers whether there is a “causal link” between the dumped MGBs and the injury suffered by the Australian industry and whether the injury is material.  This is a further clear statement of the question which the CEO was required to address.

159                                       The chapter contains findings of material injury including the loss of approximately 213,000 units representing 8% of the total market, as well as price depression of about 8% in the market for 120 litre MGBs.

160                                       As it was required to do so by s 269TAE(2A), Customs considered whether injury to the Australian industry was caused by factors other than the exportation of the goods at dumped prices.  In considering that question, the CEO made the findings which I have set out at [97] about the relevance of non-price factors in the tender process.

161                                       The effect of these findings is that in relation to each of the tenders, non-price factors played a part in the decision to accept Schaefer’s tender; but they were not sufficient to explain why the tenders were awarded to Schaefer; price was not only a factor but a key or pivotal factor.  But for Schaefer’s tender price being affected by dumping, the likelihood was that at least some of the five tenders would have been awarded to the Australian industry.

162                                       These findings seem to me to reflect the practical exercise in decision making contemplated by the test stated by Lockhart J in Swan which I referred to at [147] above.  Whilst different minds may have come to different views on the preliminary findings as to the relevance of non-price factors, the determination is, as I have said, one of fact for the decision-maker.  In making this determination, the CEO proceeded on the basis that factors other than price were given different prominence by different councils but that tenders were to be evaluated within a narrow price band.  That was a question of fact for the CEO.

163                                       The balance of Chapter 10 consists largely of a consideration of Schaefer’s submissions, in particular customer preferences.  I have set out the findings of the Report at [100] above.  That passage and the conclusions which I have set out at [102] again show the necessary application of the test of causation.

164                                       In my opinion, this ground of review fails.

ISSUE 3 – whether the Report contravened s 269TEA

165                                       Section 269TEA(5) of the Act is in similar terms to s 430(1)(c) and (d) of the Migration Act 1958 (Cth).  Thus, the CEO is only required to set out in the report to the Minister the findings which he did make; he is not required to set out findings additional to those which he actually made.  What is required is the material findings of fact which the CEO actually made and upon which he based his recommendation; see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67]-[68].

166                                       The CEO is required by s 269TEA(5)(b) of the Act to provide particulars of the evidence relied on in support of the findings.  But it is not necessary for him to refer to every piece of evidence put before him; the Court will infer that matters not mentioned were not considered to be material; see Yusuf at [69]; see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].

167                                       In my view the analysis of the Trade Measures Report which I have set out at [151] to [163] demonstrates that the Report complied with the provisions of s 269TEA(5).

168                                       The effect of Schaefer’s submission was that the Trade Measures Report failed to comply with the subsection because it omitted to make findings on other matters which would have pointed against a recommendation of causation of material injury.    These included statements made by contractors that there were factors other than price which were decisive.

169                                       However, Schaefer’s approach to construction is contrary to that which is laid down by the High Court in Yusuf.  The Report contains the findings the CEO did make on these facts.  He is not required to go further.  He is required only to make recommendations and set out his material findings on which the recommendations were based. He is not required to provide the Minister with competing interpretations of the evidence so as to allow the Minister to make the ultimate decision.

170                                       That is not the scheme of Part XVB.  What is required is the CEO’s recommendation and findings.  The Minister is not bound to accept the recommendation.  He or she is required to reach the state of satisfaction as to whether dumping caused material injury as provided in s 269TG.

ISSUE 4 – Non-disclosure of material facts

171                                       The effect of this ground, as argued by Schaefer, is that the finding of causation cannot be supported because the CEO did not disclose material facts known to him as to the reasons why the tenders were successful.  Alternatively, it was submitted that, in light of the primary materials, the CEO’s findings as to the importance of price were stated in a misleading way.   

172                                       Underlying this ground is Schaefer’s contention that the information in the site visit reports and, in particular, the confidential versions of them, as well as the various confidential file notes, contained material which was inconsistent with the finding of causation.  Schaefer therefore contended that it was deprived of the opportunity to comment on this information, which was not known to it.

173                                       Schaefer’s contention is best illustrated by reference to Coffs Coast.  The summary of the information contained in the SEF, as I set out above at [84] to [85], does not refer to the contractor’s stated unwillingness to deal with relevant members of the Australian industry.  Nor is this information disclosed in the public version of the site visit report.  It appears only in the confidential version of that report.

174                                       Customs must have been aware of the information in the confidential site visit report and that information, if accepted, points squarely against a finding that price was a causative factor.  Hence, Schaefer submits that it was deprived of the opportunity to comment on the information because it was not disclosed in the SEF or the public file. 

175                                       The question of whether the CEO is required to disclose that information turns upon the proper construction and application of s 269ZJ of the Act. 

176                                       Mr Gageler, for the respondents, relied in particular upon s 269ZJ(4).  That sub-section provides that if oral information is given to the CEO by a person, the CEO must not take the information into account unless it is subsequently reduced to writing, either by the person or the CEO, and thereby becomes available as part of the public record, subject to considerations of confidentiality.

177                                       Thus, the effect of Mr Gageler’s submission was that I should infer that the comments about the contractor’s unwillingness to deal with other suppliers was either not taken into account by the CEO or, alternatively, that the information was ultimately not considered sufficient to outweigh the evidence in relation to price. 

178                                       Dr Flick submitted that s 269ZJ(4) does not apply to information provided to the CEO on a confidential basis.  His argument focused upon the words in the sub-section “subject to considerations of confidentiality.”

179                                       Thus, Dr Flick submitted that the reasons given by a council or a contractor, which were provided to the CEO on a confidential basis, did not fall within s 269ZJ(4).  Accordingly, he contended that the CEO was not precluded by that sub-section from taking the confidential material into account.

180                                       On the approach taken by Dr Flick, I would find that the CEO took into account the confidential reasons provided by Coffs (and the other contractors) without disclosing to Schaefer the content of the confidential material which pointed against a finding of causation.

181                                       It is true that the apparent purpose of s 269ZJ is to give effect to the policy of transparency which underlies the statutory scheme in Part XVB of the Act.  Thus, the CEO’s recommendation should ordinarily to be made only by reference to that which is available on the public record.  This enables interested parties to defend their interests; see Article VI of the Implementation Agreement for the Uruguay Round of GATT; see also Pilkington at [22], [23] and [28].

182                                       However, I do not accept Dr Flick’s submission as to the proper construction of s 269ZJ(4).  The flaw in his argument is that it fails to take into account the provisions of s 269ZJ(2) and (3) which make special provision for the inclusion of some details of the confidential information to be placed on the public record.

183                                       Section 269ZJ(2) provides that a person giving information to the CEO that is claimed to be confidential must ensure that a summary of that information is given to the CEO for inclusion in the public record.  The summary must contain sufficient detail to allow a reasonable understanding of the substance of the information and is to be given in a way that does not breach confidentiality.

184                                       Importantly, s 269ZJ(3) contains an exception to this requirement.  It states that a person is not required to give a summary of the information under s 269ZJ(2) if the person satisfies the CEO that a summary cannot be given to allow a reasonable understanding of the substance of the information.

185                                       It is possible that s 269ZJ(2) was breached in relation to Coffs because the public version of the site visit report contains no details of the contractor’s unwillingness to deal with other manufacturers.

186                                       However, that point was not argued by Schaefer.  If it had been, the CEO may have pointed to the exception in s 269ZJ(3).  That was a matter on which the CEO may have wished to call evidence.  Without a specific claim of breach of s 269ZJ(2), the CEO had no reason to address that evidentiary question.

187                                       Although I have rejected Dr Flick’s proposed construction of s 269ZJ(4), it does not necessarily follow that I must accept Mr Gageler’s submission that the confidential information was not taken into account.  This is because the information in the confidential site visit report for Coffs went directly to the central question that the CEO was required to address, namely the issue of causation.

188                                       Accordingly, to say that the CEO was precluded from taking, or did not take, into account the reasons given by the Coffs contractor in the confidential report, would be to conclude that he ignored a piece of information pointing directly against a finding of causation.

189                                       In any event, even if that is what happened in the present case, I do not think it would give rise to a valid complaint of failure to take into account relevant circumstances.  This is because the outer boundaries of relevant circumstances do not encompass a failure to grapple with a competing body of evidence, provided that all integers of the claim are addressed.  Thus, in the present case the complaint would be reduced to errant fact finding; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 219 ALR 27 at [55]-[57].

190                                       However, that is a different question from that which is raised under the issue of non-disclosure.  In the absence of a claim of breach of s 269ZJ(2), I cannot say that the CEO was bound to disclose, or to cause disclosure of, the information in the Coffs confidential site visit report.  Nor can I say that he failed to take it into account.

191                                       Indeed, it seems to me that there are indications in the SEF and the Report, in particular in the passage I have set out at [97], that the CEO did have regard to the information in the confidential site visit report for Coffs, and indeed for the other councils.

192                                       This leaves open the possibility of other grounds of review, in particular perversity and unreasonableness, which I will consider under Issue 6.

193                                       I do not need to address in any detail the question of non-disclosure of information for the other councils but I will do so briefly.

194                                       Everything that I have said about Coffs applies equally to Bega.  I do not need to add any further observations or findings for that council.

195                                       As to Eurobodalla, no question of non-disclosure arises.  This is because the public version of the site visit report, set out above at [126], states in plain terms that the contractor advised that price was not a major factor.

196                                       For Canterbury, there was nothing in the confidential file notes which pointed against the CEO’s finding.  Indeed, the confidential material would have supported the finding because it showed that price was weighted as the most important factor.

197                                       For Ku-ring-gai, there was no site visit but the contractor provided written answers to Customs’ questions.  There was nothing in the answers to those questions which could be characterised as a statement that the contractor selected Schaefer for reasons other than price, with the possible exception of a preference for the configuration of the Schaefer handle.  However, this did not point so strongly against price as a decisive factor as to require disclosure.

198                                       Finally, as to Schaefer’s submission that the CEO’s findings as to price were stated in a misleading way, I will deal with that submission under Issues 6 and 7.

ISSUE 5 – failure to conduct an investigation

199                                       The duty to hold an investigation under Part XVB does not impose upon Customs an obligation to itself investigate and ascertain all relevant facts; it is a duty to investigate within the statutory framework and the CEO is entitled to rely primarily on submissions received from interested parties; see C A Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443 at 447 per Davies J.

200                                       That is not to say that the CEO’s duty to investigate is limited entirely to a consideration of the application and the submission of interested parties.  Clearly enough, the Act imposes a duty to carry out an investigation.  There are numerous references to it; see for example ss 269TC(4)(e), 269TDAA(1) and 269TEA(1).

201                                       As may be expected, the Act does not direct the CEO as to how to conduct the investigation.    It leaves to the CEO/Minister the task of reaching the necessary state of satisfaction having regard to the matters he or she may, or in certain instances must, take into account; ss 269TAE(1), 269TAE(2A), 269TE(2) and 269TG(1).

202                                       After holding an investigation, the CEO must make a recommendation as to whether the Minister ought to be satisfied of the necessary causal link; s 269TEA(1)(d).  The question is one ultimately for the Minister having regard to the matters relevant to the determination of material injury and causation; see Fraser at 571.

203                                       It is true, as Hill J observed in Enichem at 469, that decision-making is a “function of the real world”.  His Honour pointed out that a decision-maker is not bound to investigate each avenue that may be suggested to him/her by an interested party; ultimately, the decision-maker must do the best he or she can on the material available after giving interested parties the right to be heard. Gummow and O’Connor JJ agreed with Hill J.

204                                       The observations of O’Connor J in Al Abdullatif Industrial Group Co Ltd v Minister for Justice and Customs [2000] FCA 758 at [22] are to the same effect.  Her Honour pointed out that in many cases, an implied duty to investigate each avenue suggested by an interested party would make the statutory scheme unworkable.

205                                       It is plain from the passages of the Trade Measures Report which I have set out at [80]-[85], [97] and [100] that the CEO did investigate the relative significance of price to other factors and that he made findings as to the existence of the necessary causal link.

206                                       However, Schaefer submitted that the CEO breached the duty to investigate by failing to make further enquiries, in particular to ask further questions as to the relative significance of price to other factors.

207                                       The authorities confine the duty to investigate to rare and exceptional circumstances.  It is limited to cases where it is obvious that material is readily available that is centrally relevant to the decision; see Prasad at 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559, 561; Luu v Renevier (1989) 91 ALR 39 at 50; Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 at [102]-[112].

208                                       Given that the CEO did investigate the central question, the duty which Schaefer seeks to impose, namely a duty to ask further questions, does not fit neatly within the formulation expressed in Prasad and the other cases.

209                                       The difficulty was illustrated at a practical level because, apart from contending that there was a duty to ask further questions, Dr Flick was unable to formulate the particular questions which Customs ought to have asked.  This is hardly surprising.  Once it is determined that the decision-maker has asked himself/herself the correct question, how can the Court determine what particular questions the repository of the power ought to ask to complete the exercise of jurisdiction?  To do so may well be to cross the limits of judicial intervention delineated by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

210                                       But that is not to make immune from judicial intervention the CEO’s decision as to the existence of a causal link.  In my view, what really underlies Dr Flick’s attack on the decision is that it was based on findings or inferences of fact that were not supported by probative material or logical grounds; see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145]; Re Minister For Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.

211                                       Indeed, as the Full Court said in Luu v Renevier at 50, the underlying rationale for the duty to investigate is the ground of unreasonableness; see also Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290.

212                                       I will therefore consider this in the next section of my judgment when addressing Issue 6.

ISSUE 6 – Unreasonableness

213                                       Schaefer’s argument on the unreasonableness ground may be summarised as follows:

·                     The CEO had evidence from organisations that had purchased Schaefer’s MGBs under the five relevant contracts to the effect that price was a factor in each decision, but it was not the only factor.

·                     The CEO could not make a finding about causation without knowing more about the relative importance of price to the other factors in each of the contracts.

·                     There was evidence from the purchasers in the Eurobodalla and Coffs Coast contracts that price was not the determinative factor.  If the CEO had accepted this evidence, in particular for Coffs which comprised 50% of the volume of MGBs awarded to Schaefer, there was no rational basis for the finding of causation.

214                                       An alternative way in which the case was apparently put was that the finding of causation was so much against the weight of evidence as to be arbitrary, perverse or capricious; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [130]-[135].

215                                       There are two separate strands to the argument.  The first is that the information provided by some of the councils, eg Canterbury, pointed to price and non-price factors without differentiating between the relative importance of those factors.  Thus, it was said to be irrational, perverse or unreasonable to make a finding of causation without knowing more about those factors.

216                                       The second strand is that for a number of the councils, most notably Eurobodalla and Coffs Coast, there was material in the site visit reports which clearly stated the contractor’s view that price was not determinative.  I will deal with this strand of the argument first.

217                                       Once again, the argument is best illustrated by reference to Coffs.  As I have said, it is my opinion that the CEO did take into account the confidential material in the site visit report for the Coffs contractor.  The question which then arises is whether it was irrational, perverse or unreasonable for the CEO not to accept the contractor’s statements that factors other than price were determinative.

218                                       It seems to me that the CEO dealt with the contractor’s evidence in the passage I have set out at [97].  His acknowledgment that “perceptions about quality and service were relevant”, was sufficient to address the remarks made by the Coffs contractor as recorded in the confidential site visit report.

219                                       The CEO went on to find that, notwithstanding this evidence, it was clear to Customs that price was a “key factor”.  He was also satisfied that if the Malaysian MGBs had been offered at undumped prices, the Australian industry would have been more likely to be successful in competing against Schaefer for the tenders.

220                                       I do not consider that these findings were so unreasonable that no reasonable authority could have arrived at them; see Eshetu at [136]; Buck v Bavone (1976) 135 CLR 110 at 118-119.

221                                         The CEO was not bound to accept the contractor’s statement.  Of course, a different fact finder may have reached a different view.  But, as Gummow J said in Eshetu at [137]:

… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.  It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

222                                       I do not consider that the evidence was all one way.  It was open for the CEO to find that, notwithstanding the contractor’s stated views, the position would have been different if the MGBs were offered at undumped prices.

223                                       Dr Flick submitted that the omission of the confidential material from the SEF, the Report and the public site visit report for Coffs indicated perversity on the part of the CEO.  He submitted that s 269ZJ(4) cannot be construed so as to confer upon Customs a power to select from the information which it has been told and to exclude from the public record other information of which it is aware.

224                                       However, in the absence of a specific claim of breach of s 269ZJ(2), I cannot accept that the omission shows perversity.

225                                       All of the findings I have made in relation to Coffs apply equally to Bega.

226                                       The position in relation to Eurobodalla is more straightforward.  The public version of the site visit report stated in plain terms that the contractor said that price was not a major factor and that the contractor would have been prepared to pay more for the quality of the Schaefer MGBs.  This was fairly summarised in the passage I have set out at [83].

227                                       Schaefer relied on this as evidence of perversity on the part of Customs and the CEO because it was submitted that this was clear evidence against a finding of causation. 

228                                       But I do not consider that the CEO was bound to accept statements made by end users who have an interest in the market-price being as low as possible.  Moreover, there was a degree of ex post facto rationalisation in the contractor’s statement that it was prepared to pay more, rather than it being a contemporaneous record of the factors taken into account.

229                                       In any event, in the public record of the site visit report the contractor stated that Schaefer offered more flexible payment terms; see [126].  The terms upon which payment is made are plainly an aspect of price.

230                                       In light of that evidence, I can see nothing unreasonable, illogical or perverse in the CEO’s conclusion that price was a key factor.

231                                       Schaefer further contended that the CEO took an inconsistent and irrational approach in comparing actual payment terms with those which are stated in the contract.  However, I cannot see that there is anything unusual in looking at actual payment terms which disclosed that the price was in fact more generous than that which was offered in the contract.

232                                       It is true that Schaefer’s actual payment terms were compared with the contractual terms offered by the Australian industry, without any adjustment.  However, the Australian tenderers were unsuccessful.  It was therefore not possible for the CEO to look at their actual terms of payment.

233                                       Ultimately, therefore, this was a matter of judgment for the CEO.  As I have said, there can be no suggestion that he was not entitled to have regard to the actual, more generous, payment terms allowed by Schaefer.

234                                       I return then to the first strand of the argument, namely that it was unreasonable to make a finding of causation without knowing more about the relative importance of price to non-price factors.

235                                       It seems to me that the summaries in the SEF and the Trade Measures Report, set out above at [80]-[85], contain a fair summary of what was contained in the public file for Canterbury, Bega, Eurobodalla and Coffs.

236                                       For Ku-ring-gai, the contractor’s answers to Customs’ questions were apparently not placed on the public file.  However, that information was not provided orally by the contractor, so that, at least on its face, there was no breach of s 269ZJ(4) in the CEO taking that material into account.

237                                       In any event, the substance of that information was made available to Schaefer in the SEF because it was recorded in the summary for Ku-ring-gai.  The CEO was therefore required to take it into account in the Trade Measures Report; see s 269TEA(3)(iii).

238                                       An examination of the evidence before the CEO on the question of the relative significance of price and non-price factors shows that there was sufficient to support a finding of causation.  This is because in each of the five contracts there was evidence from the contractor that price was a significant factor.

239                                       It is true that there was evidence the other way, as in the case of Eurobodalla.  It is also true that there was evidence to the effect that non-price factors played a part in the decision of the contractor.

240                                       The weight that the CEO gave to the factors was ultimately a decision for him.  The passages which I have set out at [97], [100] and [102] show that he considered and weighed the non-price factors (eg. quality and service) against price (including payment terms).

241                                       Different minds may well have come to different conclusions on the question of whether price was the key factor.  But there is authority for the proposition that there was material to support the finding of causation in the present case.

242                                       So long as there is material to support a finding that price suppression and price depression were caused by importation of goods at dumped prices, so as to constitute material injury, that is sufficient to support a finding of causation; see N.V. Beaulieu Real at [48]-[60].

243                                       That test is satisfied here because there was evidence of price suppression, price depression and loss of profitability in the market; see [87], [89] and [95].

244                                       I do not consider that the practical exercise of judgment which is at the heart of the determination of causation required the CEO to make any further enquiries of the purchasers.  There was evidence from all the purchasers that price was a factor. A decision “in the real world” did not require the CEO to administer a series of interrogatories to the purchasers as to the relative importance of each factor.

245                                       The passage which I have referred to several times, set out at [97], best illustrates the carrying out of the practical exercise.  There was evidence which enabled Customs to conclude that price was a key factor.  The weight to be given to the various factors was for the CEO to decide.  The finding, that if the Malaysian MGBs had been offered at undumped prices the Australian industry would have been more successful, was open to the CEO.  I do not consider that the finding was arbitrary or capricious.

246                                       Not only did all the purchasers indicate that price was a factor, in four of the five contracts, the lowest (unadjusted) price was successful.  After readjustment of Schaefer’s payment terms in the other contract, the CEO’s analysis was that in all five contracts, Schaefer’s bid was the lowest and was successful in each case.

247                                       Confidential appendix 5 to the Report shows the adjustment that the CEO made.  It shows that Schaefer’s actual payment terms were more generous than the terms specified in its contract, the evidence of which was referred to elsewhere.  The purchaser obtained the reduced price offered under the contract for prompt payment notwithstanding that payment was actually made well outside the specified date.

248                                       A further ground of attack on the Trade Measures Report was the failure to accept the contractor’s statement that the EN840 standard was a crucial factor in the selection of Schaefer for the Coffs Coast contract.  The relevant passages of the Report are set out above at [91]-[92].

249                                       This was said to enliven a number of grounds of review including failure to investigate, failure to take into account relevant considerations and bias.  It is convenient to deal with it under the heading of unreasonableness.

250                                       It is true that the Trade Measures Report acknowledges the contractor’s statement in its response to the SEF, that EN840 was a crucial factor.  It may seem surprising that there was no discussion of the EN840 standard in the site visit of 7 December 2005.  But as the Report points out, the contractor was given an opportunity to consider a draft of the site visit report and made no comment about the failure to refer to the standard.  This is supported by an email from the contractor dated 23 January 2006.

251                                       It is plain that Customs considered the claim of Schaefer and the contractor, in response to the SEF, that only Schaefer’s MGBs met the EN840 standard.  The Trade Measures Report said so in clear terms but went on to say that Customs was not satisfied that compliance with the standard was a determining factor for Coffs Coast. 

252                                       There was evidence to support this finding.  In its application for a dumping duty notice dated 21 September 2005, the Australian industry stated that both manufactured and imported MGBs are produced in accordance with the EN840 standard. 

253                                       It was open to Customs to accept that evidence.  That is precisely what it did in rejecting the claims of Schaefer and the contractor that EN840 was a determining factor.  This is consistent with other findings in the Trade Measures Report that MGBs are commodities.  Elsewhere the Report states that “MGBs have the same end-uses and are generally substitutable.” 

254                                       In my view it follows that there was nothing irrational, perverse or unreasonable in the finding.

ISSUE 7 – Bias

255                                       In order to make out a finding of actual bias, an applicant must demonstrate that the decision-maker was guilty of pre-judgment.  He or she must be committed to a conclusion, and not open to a contrary view, whatever arguments or evidence may be presented; see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [71]-[72]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36].

256                                       An applicant bears a heavy onus; it will rarely be discharged by pointing solely to the reasons of the decision-maker or adverse fact finding; see SCAA at [36]-[38].

257                                       The test for reasonable apprehension of bias in curial proceedings is whether a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” that is to be decided; see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27].  See also Antoun v The Queen (2006) 224 ALR 51 at [51]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].  

258                                       For administrative proceedings, the test is expressed by reference to a hypothetical fair-minded lay person, properly informed of the nature of the proceeding, the matters that are in issue and the conduct which is said to give rise to the claimed apprehension of bias; se Ex parte H at [28].

259                                       The substance of Schaefer’s claim of bias was that the five councils gave central information to Customs “which slipped off the table” and did not find its way into the SEF  or Trade Measures Report.

260                                       Dr Flick pointed in particular to the statements made by the contractor for Coffs that whilst price was an issue, quality was the determining factor and there was a breakdown in the relationship with the relevant Australian supplier.

261                                       He also pointed to the clear statement made by the contractor for Eurobodalla Council that price was not a major factor.

262                                       Dr Flick also submitted that the summaries in the SEF of what Customs was told by each council did not accurately encapsulate the terms of the communications with the councils or their contractors.  The SEF was said to contain a “misleading potted summary”.  This was also said to give rise to an inference of bias.

263                                       I do not consider that the summaries fail to accurately encapsulate what Customs was told by the councils or their contractors.  Nor do I consider that the summaries are misleading.

264                                       This is plainly so in relation to Canterbury, Eurobodalla and Ku-ring-gai.

265                                       It is true that for Coffs and Bega, the summaries do not refer to the personal considerations stated in the confidential site visit reports.  But the summaries must be read in their proper context.  In particular, they must be read in light of what the CEO said in the passage at [97] about perceptions of quality and service.

266                                       Read in this way, I do not consider that the SEF or the Report failed to encapsulate what Customs was told by the contractors for Coffs and Bega.  Nor do I consider either document to be misleading.

267                                       In the result therefore, the complaint of bias rises no higher than a complaint about the content of the documents, in particular the sufficiency of the material to support the finding.  But that is not sufficient to found a claim of bias, either actual or apprehended.

268                                       As von Doussa J said in SCAA at [38], even where it is possible to show that findings are contrary to evidence, or unreasonable, or that the reasoning process is hopelessly flawed, that, without more, is unlikely to demonstrate pre-judgment amounting to bias.  Here, the most that can be said is that the findings of fact are highly contestable.

269                                       I dealt, under Issue 6, with the question of compliance with the EN840 standard in the Coffs contract.  Customs considered and dealt with Schaefer’s submission.  It seems to me that the way in which it addressed that question shows that its decision was not affected by actual or apprehended bias.

270                                       There was nothing in the other matters recorded in Schaefer’s written submissions which could make good the claim of bias.  They are all complaints about fact finding. 

271                                       There was one further matter raised by Schaefer to support the claim of bias or impartiality.  The matter arose in relation to submissions put by Schaefer as to the calculation of a “prescribed deduction” from the export price pursuant to s 269TAB(1)(b) of the Act.

272                                       The prescribed deduction in question was an allocation for the cost of marine insurance.  There was evidence that Schaefer did not directly insure the goods to cover loss or damage during their carriage to Australia.  However, Schaefer explained that it had a worldwide insurance policy that would cover any claims.   Customs took the view that this was a cost incurred in exportation and that an adjustment was necessary.  It sought to allocate a representative figure.

273                                       Schaefer did not dispute that Customs was entitled to make an allocation but it pointed to a refusal by Customs to accept its figure as the appropriate adjustment.

274                                       The figure which Customs initially proposed was .5%, although it reduced this to .3%.  Schaefer put evidence before Customs that the rate paid on its worldwide cover was only .03%, that is to say, 10% of the adjustment proposed by Customs.

275                                       Schaefer submitted that Customs refused to accept what was plainly stated on the face of the policy as the rate of premium.  It submitted that this displayed a closed mind which would not depart from its decision in the presence of clear evidence to the contrary.

276                                       The fallacy in this argument is revealed in an email from Schaefer’s solicitor dated 15 March 2006.  The worldwide coverage is for all types of transport, including land, sea and airfreight.  Also, the email states that Schaefer ships mainly steel products, which are unlikely to be damaged in transportation.

277                                       Thus, the figure of .03% was the figure actually paid for worldwide coverage, but this applied to a variety of different modes of transport and a variety of different products.  What Customs sought to do was to make a representative or reasonable allocation for marine insurance on plastic wheelie bins.

278                                       There may be room for debate as to what should have been the correct allocation but Customs was not compelled to accept Schaefer’s figure.  It was perfectly open to Customs to take the view that the figure was not representative of the appropriate adjustment.  This disposes of any suggestion of bias or any other ground of review, such as unreasonableness.

279                                       Schaefer made one other submission on the method of calculation of the normal value of export price.  This was that the CEO used a credit adjustment based on Schaefer’s domestic sales as the reseller level rather than by reference to its domestic sales at the, higher, contractor level.  It said that the effect of this was to reduce the normal value much less than would otherwise have been the case, thereby increasing the dumping margin.

280                                       However, this was done because there were no domestic sales at the contractor level during the investigation period.  The evidence supplied by Schaefer to Customs for domestic sales at the contractor level was outside that period.  Thus, it was not accepted.  There is no reviewable error in this.  Nor is it indicative of bias.

Issue 8 – Declaration

281                                       It follows from my findings in Issues 1-7, ie that neither the SEF nor the Trade Measures Report are vitiated by legal error, that the declaration of the Minister applying s 8 of the Customs Tariff (Anti-Dumping) Act remains valid.

282                                       Moreover, I do not consider that a failure by the Minister to accord Schaefer the opportunity to comment on the Trade Measures Report before the decision to impose dumping duties constitutes a denial of procedural fairness.  The statutory scheme under Part XVB of the Act allows an interested party to respond to the CEO’s views before the Report is provided to the Minister; see s 269TEA(3)(a)(iv), but following the provision of the Report by the CEO to the Minister, no further opportunity to comment is afforded under the provisions of the Act.

283                                       I agree with the submission of the respondents that most of the changes between the SEF and the Trade Measures Report were as a result of considering and responding to the applicant’s post-SEF submissions.  There is no obligation on the Minister to provide a copy of the Trade Measures Report before making any decision to impose dumping duties, nor to consider any material outside the Report; see Pilkington at [126].

Issue 9 – Discretion

284                                       The Court has a discretion to refuse relief under s 39B of the Judiciary Act if a more convenient and satisfactory remedy exists; see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400.  See also Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2000) 61 ALD 372 at [47].

285                                       A similar discretion exits to refuse a claim for relief under the ADJR Act; see Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 at [87].

286                                       Since I have come to the view that Schaefer has failed to make out a claim for judicial review, the question of discretion does not arise.

ORDERS

287                                       The orders I will make are that the application be dismissed with costs.

Associate:

Date:           29 November 2006